[G.R. No. 121106 : February 20, 2002] DURISOL PHILIPPINES, INC., Petitioner, v. COURT OF APPEALS, HON. ADRIANO R.

OSORIO, Judge, RTC, Branch 171, Valenzuela, Metro Manila, DEVELOPMENT BANK OF THE PHILIPPINES, MANILA FERTILIZERS, INC., POLAR MINES AND DEVELOPMENT CORPORATION, SPOUSES ISABEL S. VILLARAMA and CONRADO D. VILLARAMA, SPOUSES MARIBEL CABRALES and DANILO CABRALES, ROLANDO ANG SEE, SPOUSES ALEXANDER GABRIEL and MARILOU GO GABRIEL and REMEDIOS REYES, Respondents. This is a petition for review of the decision of the Court of Appeals in CA-G.R. SP No. 35069 dated January 20, 1995, dismissing petitioner Durisol Philippines, Inc.s petition for annulment of judgment.[1 On January 17, 1962 and December 5, 1969, petitioner Durisol obtained industrial loans from respondent Development Bank of the Philippines (DBP) amounting to P1,213,000.00 and P2,698,800.00, respectively. As security therefor, petitioner executed a mortgage on two parcels of registered land located in Polo (now Valenzuela), Bulacan, covered by Transfer Certificates of Title Nos. 29906 and 29909. After petitioner defaulted in the payment of the loans, DBP instituted on August 21, 1970 a petition for the extrajudicial foreclosure of mortgage. On March 6, 1972, petitioners president, Rene Knecht, borrowed from DBP the two TCTs purportedly to obtain new titles in accordance with the approved subdivision plan of the properties. DBP agreed provided that the banks existing encumbrances, including the mortgage, shall be annotated on all the new certificates of title. In the meantime, the foreclosure sale was held, wherein DBP emerged as the highest bidder. On October 9, 1973, the corresponding certificates of sale were issued to DBP. Petitioner, however, filed a complaint for annulment of the extrajudicial foreclosure before the then Court of First Instance (CFI) of Valenzuela, Bulacan, docketed as Civil Case No. 605-V. The CFI rendered judgment upholding the validity of the foreclosure. Petitioner appealed to the Court of Appeals, which affirmed the decision of the CFI. The decision of the Court of Appeals became final on April 30, 1975. Petitioner was able to obtain TCT Nos. T-167751 and T-167752 in lieu of the mother title, TCT No. 29906, and TCT Nos. T-187023 to T-187027 in lieu of the other mother title, TCT No. 29909, all issued in its name. Contrary to its promise, however, petitioner never returned the titles to the properties to DBP. Thus, despite having purchased the properties at the foreclosure sale, DBP was unable to register the property in its name. On February 25, 1977, DBP instituted before the Court of First Instance of Valenzuela, Bulacan, Branch VIII, a petition for surrender of the owners duplicate titles covering the foreclosed properties, docketed as (AD) Case No. 35-V-77, LRC Record No. 5941.[2 Petitioner filed its answer, raising the defenses that the petition fails to state a cause of action; that it had already paid its loans to DBP; that it had a valid adverse claim on the properties covered by the seven new titles; and that DBPs action was barred by laches and estoppel.[3 DBP filed a reply alleging that petitioner failed to exercise its right of redemption of the properties which were sold at public auction after foreclosure of the mortgage thereof. On April 15, 1977, the trial court rendered summary judgment, ordering petitioner to surrender to the court within five days the seven certificates of title.[4 Petitioner filed a motion for reconsideration, which contained an alternative prayer to record in the titles its adverse claim representing the amount of improvements it introduced on the property.[5 The lower court denied petitioners motion for reconsideration in an Order dated August 22, 1977.[6

Petitioner thus appealed to the Intermediate Appellate Court, docketed as AC-G.R. CV No. 65324. On July 9, 1984, the IAC rendered a decision ordering that the case be remanded to the lower court for further proceedings.[7 The IAC held that it was improper for the trial court to render summary judgment because there were genuine issues involved. This decision became final and executory. Respondent DBP filed before the lower court a motion to dispense with the proceedings and, instead, to pronounce judgment based on the admissions contained in the pleadings and the decision of the IAC.[8 This motion was denied.[9 The case was then set for hearing on November 15, 1988. On the scheduled date, neither petitioner nor its counsel appeared despite due notice. DBP was therefore allowed to present evidence ex parte. On January 10, 1989, the trial court issued the following Resolution: IN VIEW OF ALL THE FOREGOING, the Court hereby holds that the petition should be granted and the respondent through its President and General Manager is hereby ordered to surrender and deliver the owners duplicate of Transfer Certificate of Title Nos. T-187023, T-187024, T-187025, T-187026, T187027, T-167751 and T-167752, all of Bulacan Registry, to the Clerk of Court, or to the petitioner, within five (5) from receipt of this resolution.[10 Sixteen days after receipt of the copy of the resolution, petitioner filed a motion for reconsideration alleging that the ex partepresentation of evidence, being akin to a judgment by default, was done in violation of its right to due process. The lower court denied the motion for having been filed out of time and for lack of notice of hearing.[11 Respondent DBP, thus, filed a motion for execution, which was granted.[12 The writ, however, was returned unserved because petitioner was not found in the address stated in the record. An alias writ of execution was issued against petitioners president, Rene Knecht, but the latter refused to comply with the order to surrender the titles. Hence, on motion of DBP, an Order was issued on April 4, 1990 directing the Register of Deeds of Bulacan to cancel the seven titles and to issue new ones in lieu thereof.[13 Accordingly, new certificates of title were issued to DBP.[14 Thereafter, DBP sold the lots covered by TCT Nos. T-180723 to T-180727 and T-167752 to respondent Manila Fertilizers, Inc.. The latter, in turn, sold the lots covered by TCT Nos. T-108723 to T-108727 to respondent Polar Mines and Development Corporation. On the other hand, the property included in TCT No. T-167751 was sold by DBP to respondent spouses Villarama, for which TCT Nos. V-18494 to V18501 were issued, and to respondents Rolando Ang See, Remedios Reyes, the spouses Cabrales and the spouses Go Gabriel. More than four years later, or on September 2, 1994, petitioner instituted before the Court of Appeals a petition to annul the trial courts decision dated January 10, 1989 and Resolution dated April 4, 1990, alleging for the first time that the trial court had no jurisdiction over the case.[15 Petitioner prayed that the certificates of title issued in the names of all private respondents, except DBP, be annulled and that TCT Nos. T-167751 and T-167752 and T-187023-187027 be reinstated. On January 20, 1995, the Court of Appeals rendered the now assailed decision dismissing the petition for annulment of judgment.[16 Petitioner Durisols subsequent motion for reconsideration was likewise denied for lack of merit.[17 Hence this petition. The issues raised in this petition are: (1) whether or not the trial court had jurisdiction over the petition for issuance of new duplicate owners certificate of title; and (2) whether or not petitioner was estopped from challenging the courts lack of jurisdiction. The first paragraph of Rule 47, Section 2, of the 1997 Rules of Civil Procedure provides:

Grounds for annulment. The annulment may be based only on the ground of extrinsic fraud and lack of jurisdiction. At the outset, it should be stressed that in a petition for annulment of judgment based on lack of jurisdiction, petitioner must show not merely an abuse of jurisdictional discretion but an absolute lack of jurisdiction. Lack of jurisdiction means absence of or no jurisdiction, that is, the court should not have taken cognizance of the petition because the law does not vest it with jurisdiction over the subject matter. Jurisdiction over the nature of the action or subject matter is conferred by law.[18 The regional trial court, formerly the court of first instance, is a court of general jurisdiction. All cases, the jurisdiction over which is not specifically provided for by law to be within the jurisdiction of any other court, fall under the jurisdiction of the regional trial court. But the regional trial court is also a court of limited jurisdiction over, among others, cadastral and land registration cases. All proceedings involving title to real property,[19 or specifically land registration cases, including its incidents such as the issuance of owners duplicate certificate of title, are matters cognizable by the regional trial courts.[20 It has been ruled that the regional trial courts have jurisdiction over all actions involving possession of land, except forcible entry and illegal detainer.[21 Respondent DBP, after petitioners president unjustly refused to comply with the directive of the trial court to surrender the seven certificates of title, filed a petition under Section 107 of the Property Registration Decree (Presidential Decree No. 1529), to wit: Surrender of withheld duplicate certificates. --- Where it is necessary to issue a new certificate of title pursuant to any involuntary instrument which divests the title of the registered owner against his consent of where a voluntary instrument cannot be registered by reason of the refusal or failure of the holder to surrender the owners duplicate certificate of title, the party in interest may file a petition in court to compel the surrender of the same to the Register of Deeds. The court, after hearing, may order the registered owner or any person withholding the duplicate certificate to surrender the same, and direct the entry of a new certificate or memorandum upon such surrender. If the person withholding the duplicate certificate is not amenable to the process of the court, or if for any reason the outstanding owners duplicate certificate cannot be delivered, the court may order the annulment of the same as well as the issuance of a new certificate of title in lieu thereof. Such new certificate and all duplicates thereof shall contain a memorandum of the annulment of the outstanding duplicate. The term court in the above-quoted section refers to Courts of First Instance, now Regional Trial Courts, as provided in Section 2 of the Property Registration Decree. Even assuming arguendo that the regional trial court had no jurisdiction over the surrender of duplicate title, petitioner can no longer raise this ground after having actively participated in the prosecution of the case. A judgment rendered by a trial court for alleged lack of jurisdiction cannot be considered void where the party who has the right to challenge it failed to do so at the first instance. In the case at bar, petitioner did not raise the defense of lack of jurisdiction in its answer to respondent DBPs petition for surrender of owners duplicate certificate. Neither did petitioner file any motion to dismiss on this ground. On the contrary, petitioner raised the affirmative defenses of failure to state a cause of action and payment.[22 To be sure, a courts lack of jurisdiction over the subject matter and the failure of the complaint to state a cause of action are distinct and separate grounds for dismissal of a case. As stated, petitioner actively participated in the course of the proceedings both in the trial court and in the appellate court. In its motion for reconsideration, petitioner assailed the merits of the decision without raising any argument pertaining to lack of jurisdiction of the trial court. When the case was elevated to the IAC and when the case was remanded to the trial court, petitioner did not allege lack of jurisdiction. In its motion for reconsideration of the trial courts order directing the issuance of new certificates of title, petitioner again failed to raise the ground of lack of jurisdiction.

Indeed, it was only two decades after the institution of the case at bar, when the issue of lack of jurisdiction was first raised. However, it is already too late since the judgment had already attained finality, considering that more than four years have elapsed without any action from petitioner. Rule 47, Section 3 expressly provides that a petition for annulment of judgment based on lack of jurisdiction must be filed before it is barred by laches or estoppel. Hence, it has been held that while jurisdiction over the subject matter of a case may be raised at any time of the proceedings, this rule presupposes that laches or estoppel has not supervened. Thus: This Court has time and again frowned upon the undesirable practice of a party submitting his case for decision and then accepting the judgment, only if favorable, and attacking it for lack of jurisdiction when adverse. Here, the principle of estoppel lies. Hence, a party may be estopped or barred from raising the question of jurisdiction for the first time in a petition before the Supreme Court when it failed to do so in the early stages of the proceedings.[23 Petitioner argues that the then CFI had no jurisdiction when the case was remanded to it by the then IAC because as a cadastral court, the CFI had limited jurisdiction. It should be noted, however, that when the CFI took cognizance of the remanded case, the distinction between the CFI acting as a land registration court with limited jurisdiction, on the one hand, and a CFI acting as an ordinary court exercising general jurisdiction, on the other hand, has already been removed with the effectivity of the Property Registration Decree (PD 1529). The amendment was aimed at avoiding multiplicity of suits. The change has simplified registration proceedings by conferring upon the designated trial courts the authority to act not only on applications for original registration but also over all petitions filed after original registration of title, with power to hear and determine all questions arising from such applications or petition.[24 WHEREFORE, based on the foregoing, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. SP No. 35069 dated January 20 1995 is AFFIRMED in toto. SO ORDERED.

[G.R. No. 149357. March 04, 2005] MOBILIA PRODUCTS, INC., petitioner, vs. HAJIME UMEZAWA, respondent. [G.R. No. 149403. March 04, 2005] PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. JUDGE RUMOLDO R. FERNANDEZ and HAJIME UMEZAWA, respondents. Before the Court are two consolidated petitions: a petition for review on certiorari filed by the People of the Philippines, docketed as G.R. No. 149403 of the Resolution[1] of the Court of Appeals (CA) in CAG.R. SP No. 52440 which reversed its decision and granted the petition for certiorari, prohibition and mandamus filed by respondent Hajime Umezawa; and the petition for review on certiorari docketed as G.R. No. 149357 filed by petitioner Mobilia Products, Inc. (MPI), the intervenor in the CA, assailing the same Resolution of the appellate court. The Antecedents The antecedents were amply summarized by the Office of the Solicitor General (OSG) in the petition at bar, to wit: Mobilia Products, Inc. is a corporation engaged in the manufacture and export of quality furniture which caters only to the purchase orders booked and placed through Mobilia Products Japan, the mother company which does all the marketing and booking. After orders from customers are booked at the

mother company in Japan, the same are coursed through Mobilia Philippines for implementation and production, after which, the ordered items are shipped to Japan through the mother company. Mobilia Products Japan sent Hajime Umezawa to the Philippines in order to head Mobilia Products, Inc. as President and General Manager. To qualify him as such and as a Board Director, he was entrusted with one nominal share of stock. Sometime in the last week of January 1995, Umezawa, then the President and General Manager of Mobilia Products, Inc., organized another company with his wife Kimiko, and his sister, Mitsuyo Yaguchi, to be known as Astem Philippines Corporation, without the knowledge of the Chairman and Chief Executive Officer Susumo Kodaira and the other members of the Board of Directors of Mobilia. The said company would be engaged in the same business as Mobilia. Spouses Umezawa recruited Justin Legaspi, former Production Manager of Mobilia, to act as Manager and one Yoshikazu Hayano of Phoenix Marble Corporation to serve as investors [sic]. Pending formal organization, Spouses Umezawa, Justin Legaspi and Yoshikazu Hayano wanted to accelerate the market potentials of Astem by participating in the International Furniture Fair 1995 held at the Word Trade Centre of Singapore on March 6 to 10, 1995. One of the requirements of such Fair was that the furniture exhibits must arrive and be received at Singapore not later than February 23, 1995. Pressed for time, with less than one month to prepare and while Astem had yet no equipment and machinery, no staff and no ready personnel, Umezawa, with grave abuse of the confidence reposed on him as President and General Manager of Mobilia Products, Inc., and in conspiracy with his wife, his sister Mitsuyo Yaguchi, Yoshikazu Hayano and Justin Legaspi, all with intent to gain for themselves and for their company Astem Philippines Corporation, stole prototype furniture from petitioner Mobilia so that the said pieces of furniture would be presented and exhibited as belonging to Astem in the International Furniture Fair 95 in Singapore. In order to avoid detection, Umezawa contacted Henry Chua, the owner of Dew Foam, one of the suppliers of Mobilia, for that the latter to load several pieces of prototype furniture into a Dew Foam truck and store them at the Dew Foam warehouse. The first batch of furniture was stolen on February 8, 1995, when Mr. Henry Chua, upon the request of respondent Umezawa, caused to be loaded into his Dew Foam truck two prototype sofa models worthP500,000.00, after which, the same were spirited from the Mobilia compound, then transported and stored in Henry Chuas warehouse. Again, on February 18, 1995, Umezawa, with grave abuse of confidence and taking advantage of his position as President and General Manager, unlawfully stole expensive furniture from Mobilias factory worth P2,964,875.00. In order to avoid detection, the said furniture were loaded in the truck belonging to Dew Foam, with respondent Umezawa personally supervising the loading, the carting and spiriting away of the said furniture. Thus, taking advantage of his position as General Manager, he managed to have the said furniture taken out of the company premises and passed the company guard without any problem and difficulty. Further, on February 19, 1995, around 1 oclock in the afternoon, respondent Umezawa again loaded into his motor vehicle, and took away from company premises under the same irregular and unlawful circumstances, an expensive three-seater sofa worth P255,000.00. The taking out of the said furniture was effected in violation of the standard procedures established by petitioner corporation which requires that every shipment or taking out of the furniture be checked and reviewed by Mobilias Production, Planning, Inventory Costing and Control (PPICC) Division. All the foregoing furniture were transported to and stored at Henry Chuas warehouse. After sometime, the foregoing furniture were photographed for slide photos at Photo Folio at the Reclamation Area, Cebu

City and then finally catalogued for use in the Singapore Fair for the use of Astem and its supposed owners, namely: spouses Umezawa, Hayano and Legaspi. The foregoing furniture models were finally shipped for exhibition at the International Furniture Fair 95 in Singapore as furniture belonging to Astem Philippines Corporation. Sometime in March 1995, based on orders booked for Astem, Umezawa, with unfaithfulness and abuse of confidence reposed on him as the President and General Manager of petitioner Mobilia, ordered and caused the manufacture of eighty-nine (89) pieces of furniture with a total value of P17,108,500.00. The said pieces of furniture were made with Mobilia supplies, materials and machineries, as well as with Mobilia time and personnel, all of which were under the administration and control of Umezawa as President and General Manager. The said materials and supplies, the time and labor, were supposed to be used for the manufacture and production of quality furniture for the EXCLUSIVE USE of Mobilia. However, Umezawa, in violation of his duty to apply the same for the use of Mobilia and the duty to account for the same, converted their use for the benefit of Astem or for the use and benefit of Umezawa, his wife and sister, Yoshikazu Hayano and Legaspi, much to the damage and prejudice of Mobilia Products. The same furniture could also have been taken out of the company premises by Umezawa and cohorts for shipment and delivery to Astem customers had it not been for the timely discovery of the previous theft. [2] The Board of Directors of MPI, consisting of its Chairman Susumo Kodaira and members Yasushi Kato and Rolando Nonato, approved a Resolution on May 2, 1995 authorizing the filing of a complaint against Umezawa for two counts of qualified theft allegedly committed on February 18 and 19, 1995. Attached to the complaint was the Joint Affidavit of Danilo Lallaban, George del Rio and Yasushi Kato. The case was docketed as I.S. No. 95-275. On May 15, 1995, the public prosecutor filed an Information for qualified theft against Umezawa with the Regional Trial Court (RTC) of Lapu-Lapu City. The accusatory portion of the Information, docketed as Criminal Case No. 013231-L, reads: That during or about the period comprised between the 18th and 19th day of February 1995, in the City of Lapu-Lapu, Philippines, within the jurisdiction of this Honorable Court, the accused, while being then the President and General Manager of Mobilia Products, Inc., a corporation engaged in the manufacture and export of furniture, holding office and doing business in the Mactan Export Processing Zone, LapuLapu City, with grave abuse of the confidence reposed upon him by his employer, with intent to gain, did then and there willfully, unlawfully and feloniously take, steal and carry away from the corporations factory in Mactan Export Processing Zone, Lapu-Lapu City, expensive pieces of furniture, to wit: 1) 1 set, Model No. 3, 2-seater German leather sofa, worth - - - - - - - - - - - - - - - - - P 208,125.00 2) 1 set, Model No. 8, 2-seater German leather sofa, worth - - - - - - - - - - - - - - - - - P 315,000.00 3) 1 set, Model No. 5, 2-seater German leather sofa, worth - - - - - - - - - - - - - - - - - P 108,000.00 4) 1 set, Model No. 4, 2-seater German leather sofa, worth - - - - - - - - - - - - - - - - - P 277,500.00 5) 1 set, Model No. 6, 1-seater German leather sofa, worth - - - - - - - - - - - - - - - - - P 146,250.00 6) 1 set, Model No. 2, 2-seater German leather sofa, worth - - - - - - - - - - - - - - - - - P 225,000.00 7) 1 set, Model No. 1, 2-seater German leather sofa, worth - - - - - - - - - - - - - - - - - P 275,000.00 8) 1 piece, Model Table No. 2, Italian marble table, worth - - - - - - - - - - - - - - - - - - - P 93,750.00 9) 1 piece, Model Table No. 4, Italian marble table, worth - - - - - - - - - - - - - - - - - - - P 105,000.00

10) 2 pieces, Model Pedestal Italian marble table, worth - - - - - - - - - No. 6, Italian marble pedestal, worth - - - - - - - - - - - - P 187,500.00 - - - - - - - - - - P 150,000.00 15) 1 piece, Model Table No. 7 11) 1 piece, Model Column Italian marble table, worth - - - - - - - - - Standard No. 11, Italian marble worth - - - - - - - - - - - P 187,500.00 - - - - - - - - - - P 93,750.00 16) 1 piece, Model Table No. 5 Italian marble table, worth - - - - - - - - - 12) 1 piece, Model Table No. - - - - - - - - - - P 112,500.00 1, Italian marble table, worth - - - - - - - - - 17) 1 piece, Model Table No. - - - - - - - - - - P 105,000.00 9, 13) 1 piece, Model High Table Italian marble table, worth - - - - - - - - - No. 10, Italian marble, worth - - - - - - - - - - - - - - - - - P 187,500.00 - - - - - - - - - - - P 187,500.00 18) 3-seater sofa, worth- - - - - - - - - - - - - - - - - P 255,000.00 14) 1 piece, Model Table No. 8, with an aggregate value of P3,219,875.00, Philippine currency, without the consent of his employer, to the damage and prejudice of Mobilia Products, Inc., in the said amount of P3,219,875.00. Contrary to law.[3] On motion of the prosecution, the trial court issued a writ of preliminary attachment covering the properties of Umezawa. Umezawa then filed an Omnibus Motion to quash the information filed against him, the discharge of the writ of attachment issued by the trial court, and to set the case for preliminary investigation. MPI, the private complainant therein, opposed the motion. In the meantime on July 21, 1995, MPI filed another criminal complaint for qualified theft against Umezawa, his wife Kimiko Umezawa, Mitsuyo Yaguchi, Justin Legaspi, Yoshikazu Hayano and Henry Chua allegedly committed in March 1995, with the Office of the City Prosecutor. The case was docketed as I.S. No. 95-442. On July 25, 1995, the trial court issued an Order in Criminal Case No. 013231-L denying the omnibus motion. On joint motion of Umezawa and the public prosecutor, the trial court ordered a reinvestigation of the case. Conformably, the public prosecutor conducted a reinvestigation of Criminal Case No. 013231-L jointly with I.S. No. 95-442. On September 25, 1995, Umezawa filed a petition with the Securities and Exchange Commission (SEC), docketed as SEC Case No. 002919, for the nullification of the Resolution issued by the three alleged members of MPI Board of Directors, authorizing the filing of criminal complaints against him in behalf of the corporation. On January 3, 1996, the public prosecutor issued a Joint Resolution finding probable cause for qualified theft and one count of estafa against Umezawa, and dismissing the case against the other accused. The Prosecutor maintained his finding of probable cause against Umezawa in Criminal Case No. 013231-L. On February 20, 1996, the public prosecutor filed an Information for qualified theft with the RTC of Lapu-Lapu City against Umezawa, docketed as Criminal Case No. 013423-L. The accusatory portion reads: That on the 8th day of February 1995, in the City of Lapu-Lapu, Philippines, within the jurisdiction of this Honorable Court, the above-named accused, while being the President and General Manager of Mobilia Products, Inc., a corporation engaged in the manufacture and export of quality furniture, whose principal place of business is at the Mactan Export Processing Zone, Lapu-Lapu City, with intent to gain, without the consent of his employer, and with grave abuse of confidence, did then and there willfully, unlawfully

and feloniously take, steal and carry away from the corporations factory the following expensive pieces of furniture, to wit: 1) 1 set, Model No. 2, 2-seater German leather sofa, all valued at . . . . . . . . . . . . . . P 225,000.00 2) 1 set, Model No. 1, 2-seater German leather sofa, all valued at . . . . . . . . . . . . . . . . P 275,000.00 with an aggregate value of P500,000.00 Philippine Currency, to the damage and prejudice of Mobilia Products, Inc. CONTRARY TO LAW.[4] Another Information for estafa was thereafter filed against the same accused, docketed as Criminal Case No. 013424-L. The accusatory portion reads: That sometime in March 1995, in the City of Lapu-Lapu, Philippines, within the jurisdiction of this Honorable Court, the above-named accused, by means of unfaithfulness and abuse of confidence reposed upon him as the President and General Manager of Mobilia Products, Inc., did then and there willfully, unlawfully and feloniously misappropriate and convert to his own personal use and benefit the amount of Seventeen Million One Hundred Eight Thousand Five Hundred (P17,108,500.00) Pesos, Philippine Currency, which was the total value of the furnitures ordered and manufactured by the accused or at his instance using Mobilia supplies, materials and machineries, as well as time and personnel which were supposed to be for the exclusive use of Mobilia Products, Inc. but were converted for the use and benefit of the accused and Astem Philippines Corporation, a company or firm engaged in the same business as that of Mobilia Products, Inc., which is, [in] the manufacture and production of quality furniture for export, owned by the accused, to the damage and prejudice of Mobilia Products, Inc. CONTRARY TO LAW.[5] On April 25, 1996, Umezawa filed a motion for the suspension of the proceedings on the ground of the pendency of his petition with the SEC in Case No. 002919. The trial court, however, issued an Order on May 21, 1996, denying the said motion. It held that the filing and the pendency of a petition before the SEC did not warrant a suspension of the criminal cases. On September 25, 1998, Umezawa was arraigned and pleaded not guilty. On September 30, 1998, Umezawa filed anew a Joint Motion to Quash the Informations in Criminal Cases Nos. 013231-L and 013423-L, on the ground that the facts alleged therein did not constitute the felony of qualified theft. Umezawa claimed that based on the Joint Affidavit of the witnesses for the prosecution submitted during the preliminary investigation, Yasushi Kato and George del Rio, MPI VicePresident and the head of the Upholstery Department, respectively, the appropriate charge should be estafa and not qualified theft. Umezawa further claimed that for their failure to object to and resist his alleged delictual acts, the said witnesses were as guilty as he was and should have been included in the Information. He also asserted that there was, likewise, no allegation in the Informations as to who was the owner of the articles stolen; hence, there was no offended party. He noted that the Informations merely alleged that MPI was his employer. He further posited that there was no valid charge against him because the resolution authorizing the filing of the cases against him was approved by a mere minority of the members of the MPI Board of Directors.[6] Umezawa, likewise, filed a Motion to Quash[7] the Information in Criminal Case No. 013424-L on the ground that the facts alleged in the Information did not constitute the felony of estafa. He posited that the Information did not contain any allegation that any demand was made for him to return the goods. Furthermore, the owner of the said articles was not specified. He noted that as gleaned from the Joint

Affidavit of the witnesses for the prosecution, there was no lawful private complainant. He reiterated that the MPI board resolution authorizing the filing of the charge against him was not approved by the majority of the members of its board of directors. Umezawa also alleged that the charge for estafa with abuse of confidence was already included in the charge for qualified theft, where it was alleged that he committed theft with abuse of confidence; hence, the charge for estafa should be quashed, otherwise, he would be placed in double jeopardy. The motion was duly opposed by the prosecution. On January 29, 1999, the trial court issued a Joint Order[8] dismissing the cases for lack of jurisdiction. It held that the dispute between the private complainant and the accused over the ownership of the properties subject of the charges is intra-corporate in nature, and was within the exclusive jurisdiction of the SEC. It ruled that Umezawa, as a member of the board of directors and president of MPI, was also a stockholder thereof. While Umezawa claimed to be the bona fide owner of the properties subject of the Informations which he appropriated for himself, the private complainant disputes the same; hence, according to the trial court, the conflicting claims of the parties should be resolved by the SEC. The private and public prosecutors received their respective copies of the Joint Order on February 2, 1999. The MPI, through the private prosecutor, filed a motion for reconsideration of the joint order of the court and for the reinstatement of the cases on February 15, 1999. The MPI relied on the following grounds: The Honorable Court has jurisdiction and must exercise it over these cases; b. The above-entitled case is not an intra-corporate controversy; and c. The accused could not claim ownership nor co-ownership of the properties of private complainant corporation.[9] The MPI maintained that the trial court had jurisdiction over the cases and cited Section 5 of Presidential Decree (P.D.) No. 902-A, which provides the rules on cases over which the SEC has original and exclusive jurisdiction. A copy of the motion was served on the public prosecutor for his approval. However, the public prosecutor did not affix his conformity to the motion, and instead opted to appear before the trial court during the hearing of the same. During the hearing, both the public and private prosecutors appeared. In support of his motion, the private prosecutor argued that the trial of the case must be done in the presence of and under the control and supervision of the public prosecutor.[10] The trial court denied the motion in an Order dated April 19, 1999. It held that the SEC, not the trial court, had jurisdiction over intra-corporate controversies. It also ruled that the motion of the private complainant was pro forma, it appearing that the public prosecutor had not approved the same. The public prosecutor received a copy of the Order on April 20, 1999. On April 26, 1999, the People of the Philippines, through the OSG, filed a petition for certiorari andmandamus with the CA against Presiding Judge Rumuldo R. Fernandez and Umezawa, docketed as CA-G.R. SP No. 52440. The CA allowed the MPI to intervene as petitioner, and admitted its petition- in-intervention. The People of the Philippines, as the petitioner therein, raised the following issues: I WHETHER OR NOT IT IS THE LEGAL AND MINISTERIAL DUTY OF THE REGIONAL TRIAL COURT TO TAKE COGNIZANCE AND JURISDICTION OF THESE SUBJECT CRIMINAL CASES; II WHETHER OR NOT THE SECURITIES AND EXCHANGE COMMISSION HAS JURISDICTION OVER THE CRIMINAL CASES AGAINST RESPONDENT HAJIME UMEZAWA; III WHETHER OR NOT RESPONDENT JUDGE COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN DISMISSING THE CRIMINAL CASES AND DENYING PETITIONERS MOTION FOR RECONSIDERATION.[11] a.

The People asserted that the controversy involving the criminal cases was not between Umezawa and the other stockholders of MPI, but one between him as the accused therein and the People of the Philippines. It averred that under Section 20(b) of Batas Pambansa (B.P.) Blg. 129, the RTC has exclusive jurisdiction over the cases against Umezawa. It also alleged that in dismissing the criminal cases against Umezawa on the ground that it had no jurisdiction over the crimes charged, the RTC committed grave abuse of its discretion amounting to excess or lack of jurisdiction. On September 2, 1999, the CA rendered judgment granting the petition and nullifying the assailed Orders of the RTC. It ruled that the issue of ownership of the properties subject of the Informations was not an intra-corporate dispute. It held that Umezawa, although president and general manager of the MPI and a stockholder thereof, was not a joint owner or co-owner of the personal properties subject of the charges. It also held that the dispute between a private corporation and any of its stockholders relative to the ownership of properties does not ipso facto negate the jurisdiction of the RTC over the criminal cases under B.P. Blg. 129, as amended. It also declared that the material averments of the Informations sufficiently charged qualified theft and estafa. Umezawa filed a motion for the reconsideration of the decision of the CA. In a complete volte face, the appellate court issued a Resolution on August 8, 2001, granting the motion and reversing its decision. It affirmed the ruling of the RTC that the dispute between Umezawa and the other stockholders and officers over the implementation of the MPIs standard procedure is intra-corporate in nature; hence, within the exclusive jurisdiction of the SEC. Citing Section 5(a)(b) of P.D. No. 902-A, and the ruling of this Court in Alleje v. Court of Appeals,[12] the appellate court ruled that based on the material allegations of the Solicitor General in the petition before the CA, the SEC had exclusive jurisdiction over the conflicting claims of the parties. It likewise affirmed the ruling of the RTC that the absence of any allegation in the Information that the MPI was the owner of the properties subject of the Information is fatal. The petitioner MPI filed the instant petition for review on certiorari, raising the following issues: I WHETHER OR NOT THE SECURITIES AND EXCHANGE COMMISSION HAS JURISDICTION OVER THE CRIMINAL CASES AGAINST UMEZAWA. II WHETHER OR NOT ALL THE NECESSARY ELEMENTS OF THE CRIMES OF QUALIFIED THEFT AND ESTAFA ARE SUFFICIENTLY ALLEGED IN THE INFORMATIONS. III EVEN ASSUMING ARGUENDO THAT THE FACTS ALLEGED DO NOT CONSTITUTE AN OFFENSE THE CORRECT RULING IS NOT TO DISMISS THE CASE BUT TO ORDER AMENDMENT. IV WHETHER OR NOT THE STATE HS LOST ITS RIGHT TO APPEAL. V WHETHER OR NOT THE MOTION FOR RECONSIDERATION OF UMEZAWA IS PRO FORMA.[13] The People of the Philippines filed a separate petition for review on certiorari, contending that: 1. THE COURT OF APPEALS COMMITTED SERIOUS ERRORS OF LAW AND GRAVE ABUSE OF DISCRETION IN FINDING THAT THE PETITION FOR MANDAMUS, CERTIORARI AND INJUNCTION WAS FILED OUT OF TIME AND THAT PETITIONER HAS LOST ITS RIGHT TO APPEAL; 2. THE COURT OF APEALS COMMITTED SERIOUS ERRORS OF LAW IN RULING THAT NOT ALL THE ELEMENTS OF QUALIFIED THEFT AND ESTAFA ARE PRESENT;

3. THE COURT OF APPEALS COMMITTED BLATANT AND SERIOUS ERRORS OF LAW IN FINDING THAT THE SECURITIES AND EXCHANGE COMMISSION (SEC) HAS JURISDICTION OVER THE SUBJECT CRIMINAL CASES; 4. THE COURT OF APPEALS COMMITTED SERIOUS ERRORS OF LAW AND GRAVE ABUSE OF DISCRETION IN GIVING DUE COURSE TO THE PRO-FORMA MOTION FOR RECONSIDERATION OF UMEZAWA.[14] The two petitions were consolidated in the Second Division of the Court. The threshold issues for resolution are the following: (a) whether or not the petition for certiorari of the People of the Philippines in the CA assailing the January 29, 1999 Joint Order of the trial court was time-barred; (b) whether the RTC has jurisdiction over the crimes charged in the said Informations; (c) whether the Informations sufficiently charge the felonies of qualified theft and estafa; and (d) if in the affirmative, whether all the elements of qualified theft and estafa are alleged in the Informations. On the first issue, the CA held that the Public Prosecutor failed to file a motion for the reconsideration of the trial courts January 29, 1999 Joint Order dismissing the cases, that is, within fifteen days from receipt of a copy of the said order on February 2, 1999; neither did the People appeal the said Order within the period therefor. Thus, according to the CA, the People filed its petition for certiorari, prohibition and mandamus assailing the January 29, 1999 Joint Order of the trial court only on April 26, 1999, well beyond the 60-day period therefor. The appellate court, likewise, held that the filing of the motion for reconsideration of the said Joint Order by the private prosecutor without the conformity of the Public Prosecutor did not toll the period for the People to file its motion for reconsideration thereof, or to appeal therefrom, or to file a petition for certiorari, prohibition or mandamus. It ruled that, having lost its right to appeal in due course, the People was proscribed from filing a petition for certiorari, prohibition or mandamus. The CA declared that the motion for reconsideration filed by petitioner MPI of the Joint Order of the RTC is pro forma, the public prosecutor not having signified his written conformity thereto. On the other hand, the petitioner People of the Philippines insists that while the public prosecutor did not expressly conform to the motion for reconsideration of the January 29, 1999 Joint Order of the trial court filed by the private prosecutor, through the public prosecutors presence during the hearing of the said motion, his supervision and control over the private prosecutor during the said hearing, he in effect adopted and conformed to the said motion for reconsideration. In his comment on the petitions, respondent Umezawa maintains that the motion for reconsideration of the joint order of the trial court filed by the private prosecutor did not interrupt the period within which the People could appeal, citing the ruling of this Court in Cabral v. Puno.[15] The respondent posits that the finding of the trial court, which was affirmed by the CA, that the public prosecutor did not conform to the motion for reconsideration of the private prosecutor, is binding on this Court. The respondent also avers that the petitioner has no personality to file the petition. Moreover, he insists that whether the public prosecutor conformed to the private prosecutors motion for reconsideration is a question of fact which is not proper in a petition for review on certiorari. The Courts Ruling The contention of the petitioner People of the Philippines is not correct. All criminal actions commenced by complaint or information shall be prosecuted under the direction and control of the public prosecutor.[16] When the civil action for civil liability is instituted in the criminal action pursuant to Rule 111 of the Rules on Criminal Procedure, the offended party may intervene, by counsel, in the prosecution of the offense.[17] In Ramiscal, Jr. v. Sandiganbayan,[18] we held that under Section 16, Rule 110 of the Rules of Criminal Procedure, the offended party may intervene in the criminal action personally or by counsel, who will then act as private prosecutor for the protection of his interests and in the interest of the speedy and inexpensive administration of justice. A separate action for the purpose would only prove to be costly, burdensome and time-consuming for both parties and further delay the

final disposition of the case. The multiplicity of suits must be avoided. With the implied institution of the civil action in the criminal action, the two actions are merged into one composite proceeding, with the criminal action predominating the civil. The prime purpose of the criminal action is to punish the offender in order to deter him and others from committing the same or similar offense, to isolate him from society, reform and rehabilitate him or, in general, to maintain social order.[19] The intervention of the private offended party, through counsel, and his prosecution of the case shall be under the control and supervision of the public prosecutor until the final termination of the case. A public prosecutor who has been entrusted by law with the prosecution of criminal cases is duty-bound to take charge thereof until its final termination, for under the law, he assumes full responsibility for his failure or success since he is the one more adequately prepared to pursue it to its termination.[20] The prosecution of offenses is a public function. Indeed, the sole purpose of the civil action is the resolution, reparation or indemnification of the private offended party for the damage or injury he sustained by reason of the delictual or felonious act of the accused. [21] Under Article 104 of the Revised Penal Code, the following are the civil liabilities of the accused: ART. 104. What is included in civil liability. The civil liability established in Articles 100, 101, 102 and 103 of this Code includes: 1. Restitution; 2. Reparation of the damage caused; 3. Indemnification for consequential damages. Thus, when the offended party, through counsel, has asserted his right to intervene in the proceedings, it is error to consider his appearance merely as a matter of tolerance.[22] The public prosecutor may turn over the actual prosecution of the criminal case, in the exercise of his discretion, but he may, at any time, take over the actual conduct of the trial. However, it is necessary that the public prosecutor be present at the trial until the final termination of the case; otherwise, if he is absent, it cannot be gainsaid that the trial is under his supervision and control.[23] In a criminal case in which the offended party is the State, the interest of the private complainant or the offended party is limited to the civil liability arising therefrom. Hence, if a criminal case is dismissed by the trial court or if there is an acquittal, a reconsideration of the order of dismissal or acquittal may be undertaken, whenever legally feasible, insofar as the criminal aspect thereof is concerned and may be made only by the public prosecutor; or in the case of an appeal, by the State only, through the OSG. The private complainant or offended party may not undertake such motion for reconsideration or appeal on the criminal aspect of the case.[24] However, the offended party or private complainant may file a motion for reconsideration of such dismissal or acquittal or appeal therefrom but only insofar as the civil aspect thereof is concerned.[25] In so doing, the private complainant or offended party need not secure the conformity of the public prosecutor. If the court denies his motion for reconsideration, the private complainant or offended party may appeal or file a petition for certiorari or mandamus, if grave abuse amounting to excess or lack of jurisdiction is shown and the aggrieved party has no right of appeal or given an adequate remedy in the ordinary course of law. The public and private prosecutors are not precluded, whenever feasible, from filing a joint motion for the reconsideration of the dismissal of the case or the acquittal of the accused, on the criminal and civil aspects of the cases. In the present case, only petitioner MPI, through counsel, filed a motion for the reconsideration of the trial courts Joint Order dated January 29, 1999, praying for the reinstatement of the cases insofar as the civil aspect thereof is concerned. The public prosecutor did not approve nor conform to the said motion. Although petitioner MPI provided ample space for the said conformity of the public prosecutor, the latter did not do so; he merely appeared during the hearing of the said motion with the private prosecutor when the latter presented his oral arguments in support of the said motion.

The fact that the public prosecutor did not conform to the said motion, however, does not mean that the same is pro forma. It must be stressed that the propriety and efficacy of the motion, insofar as the civil aspect of the cases is concerned, is not dependent upon the conformity of the public prosecutor. Hence, the filing of the joint motion for reconsideration effectively suspended the running of the period for petitioner MPI to assail the joint order in the CA via an appeal or a special civil action for certiorari or mandamus under Rule 65 of the Rules of Court. However, since the public prosecutor did not file any motion for the reconsideration of the joint order nor conform to the motion of petitioner MPI, insofar as the criminal aspect of the cases is concerned, the period for the State to assail the said joint order was not suspended. Only the motion for reconsideration filed by the public prosecutor of the joint order of dismissal of the cases could have tolled the period within which the State could appeal, insofar as the criminal aspect of the cases was concerned. The bare fact that the public prosecutor appeared for the State during the hearing of the motion for reconsideration of petitioner MPI does not amount to or constitute his adoption of the said motion as that of the State. As ruled by this Court in Cabral v. Puno:[26] While it is true that the offended party, Silvino San Diego, through the private prosecutor, filed a motion for reconsideration within the reglementary fifteen-day period, such move did not stop the running of the period for appeal. He did not have the legal personality to appeal or file the motion for reconsideration on his behalf. The prosecution in a criminal case through the private prosecutor is under the direction and control of the Fiscal, and only the motion for reconsideration or appeal filed by the Fiscal could have interrupted the period for appeal.[27] We agree with the ruling of the CA that the petition for certiorari filed by the petitioner People of the Philippines with the CA on April 26, 1999 was filed beyond the 60-day period as provided in Section 4, Rule 65 of the Rules of Court,[28] it appearing that the public prosecutor received a copy of the joint order of the trial court on February 2, 1999, and, thus, had only until April 3, 1999 within which to file the said petition. Even then, the Court still holds that the CA erred in dismissing the petition of the People of the Philippines simply because the public prosecutor erred in not himself filing a motion for reconsideration of the joint order of the trial court, on his perception that by being present during the hearing of the motion for reconsideration of petitioner MPI, he thereby adopted the said motion as that of the States. The settled rule is that the State is not estopped by the mistakes of its officers and employees. Indeed, in Cruz, Jr. v. Court of Appeals,[29] the Court declared: Estoppel does not lie against the government because of the supposedly mistaken acts or omissions of its agents. As we declared in People v. Castaeda, there is the long familiar rule that erroneous application and enforcement of the law by public officers do not block subsequent correct application of the statute and that the government is never estopped by mistake or error on the part of its agents. The Court also held in Chua v. Court of Appeals:[30] While ordinarily, certiorari is unavailing where the appeal period has lapsed, there are exceptions. Among them are (a) when public welfare and the advancement of public policy dictates; (b) when the broader interest of justice so requires; (c) when the writs issued are null and void; or (d) when the questioned order amounts to an oppressive exercise of judicial authority. [31] On the second issue, the petitioners assert that the CA erred in holding that the dispute between it and the respondent is intra-corporate in nature; hence, within the exclusive jurisdiction of the SEC. As gleaned from the material allegations of the Informations, the RTC had exclusive jurisdiction over the crimes charged. Petitioner MPI further avers that even if there is no allegation in the Informations identifying it as the owner of the personal properties described in the Informations, its ownership of the properties can be inferred from the other allegations. The petitioners maintain that even if the

Informations are deficient, the remedy is the amendment of the Informations and not the dismissal of the cases. For his part, the respondent avers that the assailed Resolution of the CA is correct, and that it is the appellate courts decision which is erroneous. We agree with the petitioners. According to Section 20 of B.P. Blg. 129 SEC. 20. Jurisdiction in criminal cases. Regional Trial Courts shall exercise exclusive original jurisdiction in all criminal cases not within the exclusive jurisdiction of any court, tribunal or body, except those now falling under the exclusive and concurrent jurisdiction of the Sandiganbayan which shall hereafter be exclusively taken cognizance of by the latter. Section 32 thereof was later amended by Section 2 of Republic Act No. 7691, as follows: Sec. 32. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in Criminal Cases. Except in cases falling within the exclusive original jurisdiction of the Regional Trial Court and of the Sandiganbayan, the Metropolitan Trial Courts, and Municipal Circuit Trial Courts shall exercise: (1) Exclusive original jurisdiction over all violations of city or municipal ordinances committed within their respective territorial jurisdiction; and (2) Exclusive original jurisdiction over all offenses punishable with imprisonment not exceeding six (6) years irrespective of the amount of fine, and regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of kind, nature, value or amount thereof: Provided, however, That in offenses involving damage to property through criminal negligence, they shall have exclusive original jurisdiction thereof. Case law has it that in order to determine the jurisdiction of the court in criminal cases, the complaint or Information must be examined for the purpose of ascertaining whether or not the facts set out therein and the prescribed period provided for by law are within the jurisdiction of the court, and where the said Information or complaint is filed. It is settled that the jurisdiction of the court in criminal cases is determined by the allegations of the complaint or Information and not by the findings based on the evidence of the court after trial.[32]Jurisdiction is conferred only by the Constitution or by the law in force at the time of the filing of the Information or complaint. Once jurisdiction is vested in the court, it is retained up to the end of the litigation. Indeed, in People v. Purisima,[33] this Court held that: In criminal prosecutions, it is settled that the jurisdiction of the court is not determined by what may be meted out to the offender after trial or even by the result of the evidence that would be presented at the trial, but by the extent of the penalty which the law imposes for the misdemeanor, crime or violation charged in the complaint. If the facts recited in the complaint and the punishment provided for by law are sufficient to show that the court in which the complaint is presented has jurisdiction, that court must assume jurisdiction. In Criminal Case No. 013231-L, the value of the properties subject of qualified theft is P3,219,875.00, while in Criminal Case No. 013423-L, the value of the property was pegged at P255,000.00. Under Article 309 of the Revised Penal Code, the penalty for theft when the value of the stolen property exceeds P22,000.00 is as follows: 1. The penalty of prision mayor in its minimum and medium periods, if the value of the thing stolen is more than 12,000 pesos but does not exceed 20,000 pesos; but if the value of the thing stolen exceeds

the latter amount, the penalty shall be the maximum period of the one prescribed in this paragraph and one year of each additional ten thousand pesos, but the total of the penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor orreclusion temporal, as the case may be. Article 310 of the Revised Penal Code further provides for the penalty for qualified theft: Art. 310. Qualified theft. The crime of theft shall be punished by the penalties next higher by two degrees 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 motor vehicle, mail matter or large cattle or consists of coconuts taken from the premises of a plantation, fish taken from a fishpond or fishery or if property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance. On the other hand, in Criminal Case No. 013424-L for estafa, the amount of the fraud involved is P500,000.00, and under Article 315 of the Revised Penal Code, the penalty for such crime is 1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos; and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be. Patently, then, based on the material allegations of the Informations in the three cases, the court a quo had exclusive jurisdiction over the crimes charged. The bare fact that the respondent was the president and general manager of the petitioner corporation when the crimes charged were allegedly committed and was then a stockholder thereof does not in itself deprive the court a quo of its exclusive jurisdiction over the crimes charged. The property of the corporation is not the property of the stockholders or members or of its officers who are stockholders. [34] As the Court held in an avuncular case:[35] ... Properties registered in the name of the corporation are owned by it as an entity separate and distinct from its members. While shares of stock constitute personal property, they do not represent property of the corporation. The corporation has property of its own which consists chiefly of real estate (Nelson v. Owen, 113 Ala., 372, 21 So. 75; Morrow v. Gould, 145 Iowa, 1, 123 N.W. 743). A share of stock only typifies an aliquot part of the corporations property, or the right to share in its proceeds to that extent when distributed according to law and equity (Hall & Faley v. Alabama Terminal, 173 Ala., 398, 56 So. 235), but its holder is not the owner of any part of the capital of the corporation (Bradley v. Bauder, 36 Ohio St., 28). Nor is he entitled to the possession of any definite portion of its property or assets (Gottfried v. Miller, 104 U.S., 521; Jones v. Davis, 35 Ohio St., 474). The stockholder is not a co-owner or tenant in common of the corporate property (Harton v. Johnston, 166 Ala., 317, 51 So., 992) [36] As early as the case of Fisher v. Trinidad,[37] the Court already declared that [t]he distinction between the title of a corporation, and the interest of its members or stockholders in the property of the corporation, is familiar and well-settled. The ownership of that property is in the corporation, and not in the holders of shares of its stock. The interest of each stockholder consists in the right to a proportionate part of the profits whenever dividends are declared by the corporation, during its existence, under its charter, and to a like proportion of the property remaining, upon the termination or dissolution of the corporation, after payment of its debts.[38]

We also agree with the ruling of the CA in its decision that the SEC (now the Regional Trial Court) had no jurisdiction over the cases filed in the court a quo. The appellate courts reliance in the assailed Resolution issued by the Board of Directors of the petitioner corporation, on Section 5(b) of P.D. No. 902, has no factual and legal basis. Section 5 of P.D. No. 902-A provides that the SEC[39] shall have original and exclusive jurisdiction to hear and decide cases involving the following: (a) devices or schemes employed by, or any acts of, the board of directors, business associates, its officers or partners, amounting to fraud and misrepresentation which may be detrimental to the interest of the public and/or of the stockholders, partners, members of association or organizations registered with the Commission, and (b) controversies arising out of intra-corporate or partnership relations, between and among stockholders, members or associates; between any or all of them and the corporation, partnership or association of which they are stockholders, members or associates, respectively. In Fabia v. Court of Appeals,[40] the Court explained that Section 5 of P.D. No. 902-A should be taken in conjunction with Section 6 of the law. It then proceeded to explain: In synthesis, Sec. 5 of PD 902-A mandates that cases involving fraudulent actions and devices which are detrimental to the interest of stockholders, members or associates and directors of the corporation are within the original and exclusive jurisdiction of the SEC. Taken in conjunction with Sec. 6 of the same law, it will be gathered that the fraudulent acts/schemes which the SEC shall exclusively investigate and prosecute are those in violation of any law or rules and regulations administered and enforced by the Commission alone. This investigative and prosecutorial powers of the SEC are further without prejudice to any liability for violation of any provision of The Revised Penal Code. From the foregoing, it can thus be concluded that the filing of the civil/intra-corporate case before the SEC does not preclude the simultaneous and concomitant filing of a criminal action before the regular courts; such that, a fraudulent act may give rise to liability for violation of the rules and regulations of the SEC cognizable by the SEC itself, as well as criminal liability for violation of the Revised Penal Code cognizable by the regular courts, both charges to be filed and proceeded independently, and may be simultaneously with the other.[41] Thus, the filing of a petition in the SEC for the nullification of the Resolution of May 2, 1995 issued by the Chairman and two members of the Board of Directors of petitioner MPI, which authorized the filing of criminal cases against respondent Umezawa, was not a bar to his prosecution for estafa and qualified theft for his alleged fraudulent and delictual acts. The relationship of the party-litigants with each other or the position held by petitioner as a corporate officer in respondent MPI during the time he committed the crime becomes merely incidental and holds no bearing on jurisdiction. What is essential is that the fraudulent acts are likewise of a criminal nature and hence cognizable by the regular courts.[42] Thus, notwithstanding the fact that respondent Umezawa was the president and general manager of petitioner MPI and a stockholder thereof, the latter may still be prosecuted for the crimes charged. The alleged fraudulent acts of respondent Umezawa in this case constitute the element of abuse of confidence, deceit or fraudulent means, and damage under Article 315 of the Revised Penal Code on estafa.[43] We agree with the encompassing disquisitions of the CA in its decision, to wit: A dispute involving the corporation and its stockholders is not necessarily an intra-corporate dispute cognizable only by the Securities and Exchange Commission. Nor does it ipso facto negate the jurisdiction of the Regional Trial Court over the subject cases. The Supreme Court citing the case

of Viray v. Court of Appeals (G.R. No. 92481, 191 SCRA 308 [1990]) in Torio v. Court of Appeals (G.R. No. 107293, March 2, 1994, 230 SCRA 626) held: It should be obvious that not every conflict between a corporation and its stockholders involves corporate matters that only the SEC can resolve in the exercise of its adjudicatory or quasi-judicial powers. As the Supreme Court further ruled in the Torio case that a contrary interpretation would distort the meaning and intent of P.D. 902-A, the law re-organizing the Securities and Exchange Commission. The better policy in determining which body has jurisdiction over a case would be to consider not only the relationship of the parties but also the nature of the questions raised in the subject of the controversy.[44] On the last issue, we find and so hold that the Informations state all the essential elements of estafa and qualified theft. It was adequately alleged that respondent Umezawa, being the President and General Manager of petitioner MPI, stole and misappropriated the properties of his employer, more specifically, petitioner MPI. As expostulated by the CA in its decision: In any event, the allegations in the informations, if hypothetically admitted, are sufficient to bind Umezawa to the charges of qualified theft and estafa. As aptly ruled by the court a quo in its Order of July 25, 1995, all the elements of the offense of qualified theft are present. There is no basis for claiming otherwise. Furthermore, the private offended party, as well as the subject matter of the felonious taking and the ownership thereof, have been adequately indicated or identified leaving no room for any doubt on these matters. Considering that the motions to quash of September 30, 1998 are fundamentally rehash of the motion to quash filed on May 29, 1995 and the culpable acts subject of the new informations are virtually the same as the first information filed against Umezawa, there is no conceivable reason why the court a quo abandoned its previous stand and controverted itself in regard the sufficiency of the informations. In our considered view, and as the court a quo had correctly held in its Order of May 26, 1996, even a SEC ruling voiding the resolution authorizing the filing of criminal charges versus the accused Hajime Umezawa can have no bearing on the validity of the informations filed in these three criminal cases as pointed out by private complainant, the public offenses of qualified theft and estafa can [be] prosecuted de officio. The resolution of the office of the prosecutor on the preliminary investigation as well as the re-investigation conducted on the letter-complaint filed by private complainant company sufficiently established prima facie case against the accused and the legality or illegality of the constitution of the board which authorized the filing of the complaint does not materially affect either the informations filed against Umezawa or the pending criminal proceedings. As petitioners contend, the action is now between the People of the Philippines and herein private respondent.[45] IN LIGHT OF ALL THE FOREGOING, the petitions are GRANTED. The Resolution of the Court of Appeals in CA-G.R. SP No. 52440 dated August 8, 2001 is REVERSED and SET ASIDE. The Decision of the Court of Appeals dated September 2, 1999 is AFFIRMED. SO ORDERED. G.R. No. 158763 March 31, 2006 JOSE C. MIRANDA, ALBERTO P. DALMACIO, and ROMEO B. OCON, Petitioners, vs. VIRGILIO M. TULIAO, Respondent. This is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the 18 December 2002 Decision 1 of the Court of Appeals in CA-G.R. SP No. 67770 and its 12 June 2003 Resolution denying petitioners Motion for Reconsideration. The dispositive portion of the assailed decision reads as follows:

WHEREFORE, finding public respondent Judge Anastacio D. Anghad to have acted with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the assailed Orders, the instant petition for certiorari, mandamus and prohibition is hereby GRANTED and GIVEN DUE COURSE, and it is hereby ordered: 1. The assailed Joint Order dated August 17, 2001, Order dated September 21, 2001, Joint Order dated October 16, 2001 and Joint Order dated November 14, 2001 dismissing the two (2) Informations for Murder, all issued by public respondent Judge Anastacio D. Anghad in Criminal Cases Nos. 36-3523 and 36-3524 are hereby REVERSED and SET ASIDE for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction, and another entered UPHOLDING, AFFIRMING[,] and REINSTATING the Order dated June 25, 2001 and Joint Order dated July 6, 2001 issued by the then acting Presiding Judge Wilfredo Tumaliuan; 2. Criminal Cases Nos. 36-3523 and 36-3524 are hereby ordered REINSTATED in the docket of active criminal cases of Branch 36 of the Regional Trial Court of Santiago City, Isabela; and 3. Public respondent Judge Anastacio D. Anghad is DIRECTED to ISSUE forthwith Warrants of Arrest for the apprehension of private respondents Jose "Pempe" Miranda, SPO3 Alberto P. Dalmacio, PO3 Romeo B. Ocon and accused Rodel T. Maderal in said Criminal Cases Nos. 363523 and 36-3524. 2 The factual and procedural antecedents of the case are as follows: On 8 March 1996, two burnt cadavers were discovered in Purok Nibulan, Ramon, Isabela, which were later identified as the dead bodies of Vicente Bauzon and Elizer Tuliao, son of private respondent Virgilio Tuliao who is now under the witness protection program. Two informations for murder were filed against SPO1 Wilfredo Leao, SPO1 Ferdinand Marzan, SPO1 Ruben B. Agustin, SPO2 Alexander Micu, SPO2 Rodel Maderal, and SPO4 Emilio Ramirez in the Regional Trial Court (RTC) of Santiago City. The venue was later transferred to Manila. On 22 April 1999, the RTC of Manila convicted all of the accused and sentenced them to two counts of reclusion perpetua except SPO2 Maderal who was yet to be arraigned at that time, being at large. The case was appealed to this Court on automatic review where we, on 9 October 2001, acquitted the accused therein on the ground of reasonable doubt. Sometime in September 1999, SPO2 Maderal was arrested. On 27 April 2001, he executed a sworn confession and identified petitioners Jose C. Miranda, PO3 Romeo B. Ocon, and SPO3 Alberto P. Dalmacio, a certain Boyet dela Cruz and Amado Doe, as the persons responsible for the deaths of Vicente Bauzon and Elizer Tuliao. Respondent Tuliao filed a criminal complaint for murder against petitioners, Boyet dela Cruz, and Amado Doe, and submitted the sworn confession of SPO2 Maderal. On 25 June 2001, Acting Presiding Judge Wilfredo Tumaliuan issued warrants of arrest against petitioners and SPO2 Maderal. On 29 June 2001, petitioners filed an urgent motion to complete preliminary investigation, to reinvestigate, and to recall and/or quash the warrants of arrest. In the hearing of the urgent motion on 6 July 2001, Judge Tumaliuan noted the absence of petitioners and issued a Joint Order denying said urgent motion on the ground that, since the court did not acquire jurisdiction over their persons, the motion cannot be properly heard by the court. In the meantime, petitioners appealed the resolution of State Prosecutor Leo T. Reyes to the Department of Justice.

On 17 August 2001, the new Presiding Judge Anastacio D. Anghad took over the case and issued a Joint Order reversing the Joint Order of Judge Tumaliuan. Consequently, he ordered the cancellation of the warrant of arrest issued against petitioner Miranda. He likewise applied this Order to petitioners Ocon and Dalmacio in an Order dated 21 September 2001. State Prosecutor Leo S. Reyes and respondent Tuliao moved for the reconsideration of the said Joint Order and prayed for the inhibition of Judge Anghad, but the motion for reconsideration was denied in a Joint Order dated 16 October 2001 and the prayer for inhibition was denied in a Joint Order dated 22 October 2001. On 25 October 2001, respondent Tuliao filed a petition for certiorari, mandamus and prohibition with this Court, with prayer for a Temporary Restraining Order, seeking to enjoin Judge Anghad from further proceeding with the case, and seeking to nullify the Orders and Joint Orders of Judge Anghad dated 17 August 2001, 21 September 2001, 16 October 2001, and 22 October 2001. On 12 November 2001, this Court issued a Resolution resolving to grant the prayer for a temporary restraining order against Judge Anghad from further proceeding with the criminal cases. Shortly after the aforesaid resolution, Judge Anghad issued a Joint Order dated 14 November 2001 dismissing the two Informations for murder against petitioners. On 19 November 2001, this Court took note of respondents cash bond evidenced by O.R. No. 15924532 dated 15 November 2001, and issued the temporary restraining order while referring the petition to the Court of Appeals for adjudication on the merits. Respondent Tuliao filed with this Court a Motion to Cite Public Respondent in Contempt, alleging that Judge Anghad "deliberately and willfully committed contempt of court when he issued on 15 November 2001 the Order dated 14 November 2001 dismissing the informations for murder." On 21 November 2001, we referred said motion to the Court of Appeals in view of the previous referral to it of respondents petition for certiorari, prohibition and mandamus. On 18 December 2002, the Court of Appeals rendered the assailed decision granting the petition and ordering the reinstatement of the criminal cases in the RTC of Santiago City, as well as the issuance of warrants of arrest against petitioners and SPO2 Maderal. Petitioners moved for a reconsideration of this Decision, but the same was denied in a Resolution dated 12 June 2003. Hence, this petition. The facts of the case being undisputed, petitioners bring forth to this Court the following assignments of error: FIRST ASSIGNMENT OF ERROR With all due respect, the Honorable Court of Appeals gravely erred in reversing and setting aside the Joint Order of Judge Anastacio D. Anghad dated August 17, 2001, September 21, 2001, October 16, 2001 and November 14, 2001 issued in criminal cases numbered 36-3523 and 36-3524; and, erred in upholding, affirming and reinstating the Order dated July 6, 2001 issued by then Acting Presiding Judge Wilfredo Tumaliuan, on the alleged rule that an accused cannot seek any judicial relief if he does not submit his person to the jurisdiction of the court. SECOND ASSIGNMENT OF ERROR With all due respect, the Honorable Court of Appeals gravely erred in directing the reinstatement of Criminal Cases No. 36-3523 and 36-3524 in the docket of Active Criminal Cases of Branch 36 of the Regional Trial Court of Santiago City, Philippines, and in ordering the public respondent to re-issue the warrants of arrest against herein petitioners. THIRD ASSIGNMENT OF ERROR

Wit all due respect, the Honorable Court of Appeals committed a reversible error in ordering the reinstatement of Criminal Cases No. 36-3523 and No. 36-3524 in the docket of active criminal cases of Branch 36 of the regional trial court of Santiago City, Philippines, and in ordering the public respondent to issue warrants of arrest against herein petitioners, the order of dismissal issued therein having become final and executory. Adjudication of a motion to quash a warrant of arrest requires neither jurisdiction over the person of the accused, nor custody of law over the body of the accused. The first assignment of error brought forth by the petitioner deals with the Court of Appeals ruling that: [A]n accused cannot seek any judicial relief if he does not submit his person to the jurisdiction of the court. Jurisdiction over the person of the accused may be acquired either through compulsory process, such as warrant of arrest, or through his voluntary appearance, such as when he surrenders to the police or to the court. It is only when the court has already acquired jurisdiction over his person that an accused may invoke the processes of the court (Pete M. Pico vs. Alfonso V. Combing, Jr., A.M. No. RTJ-91-764, November 6, 1992). Thus, an accused must first be placed in the custody of the law before the court may validly act on his petition for judicial reliefs.3 Proceeding from this premise, the Court of Appeals ruled that petitioners Miranda, Ocon and Dalmacio cannot seek any judicial relief since they were not yet arrested or otherwise deprived of their liberty at the time they filed their "Urgent Motion to complete preliminary investigation; to reinvestigate; to recall and/or quash warrants of arrest."4 Petitioners counter the finding of the Court of Appeals by arguing that jurisdiction over the person of the accused is required only in applications for bail. Furthermore, petitioners argue, assuming that such jurisdiction over their person is required before the court can act on their motion to quash the warrant for their arrest, such jurisdiction over their person was already acquired by the court by their filing of the above Urgent Motion. In arguing that jurisdiction over the person is required only in the adjudication of applications for bail, petitioners quote Retired Court of Appeals Justice Oscar Herrera: Except in applications for bail, it is not necessary for the court to first acquire jurisdiction over the person of the accused to dismiss the case or grant other relief. The outright dismissal of the case even before the court acquires jurisdiction over the person of the accused is authorized under Section 6(a), Rule 112 of the Revised Rules of Criminal Procedure and the Revised Rules on Summary Procedure (Sec. 12a). In Allado vs. Diokno (232 SCRA 192), the case was dismissed on motion of the accused for lack of probable cause without the accused having been arrested. In Paul Roberts vs. Court of Appeals (254 SCRA 307), the Court was ordered to hold the issuance of a warrant of arrest in abeyance pending review by the Secretary of Justice. And in Lacson vs. Executive Secretary (301 SCRA 1025), the Court ordered the case transferred from the Sandiganbayan to the RTC which eventually ordered the dismissal of the case for lack of probable cause.6 In arguing, on the other hand, that jurisdiction over their person was already acquired by their filing of the above Urgent Motion, petitioners invoke our pronouncement, through Justice Florenz D. Regalado, in Santiago v. Vasquez7: The voluntary appearance of the accused, whereby the court acquires jurisdiction over his person, is accomplished either by his pleading to the merits (such as by filing a motion to quash or other pleadings requiring the exercise of the courts jurisdiction thereover, appearing for arraignment, entering trial) or by filing bail. On the matter of bail, since the same is intended to obtain the provisional liberty of the

accused, as a rule the same cannot be posted before custody of the accused has been acquired by the judicial authorities either by his arrest or voluntary surrender. Our pronouncement in Santiago shows a distinction between custody of the law and jurisdiction over the person. Custody of the law is required before the court can act upon the application for bail, but is not required for the adjudication of other reliefs sought by the defendant where the mere application therefor constitutes a waiver of the defense of lack of jurisdiction over the person of the accused.8 Custody of the law is accomplished either by arrest or voluntary surrender,9 while jurisdiction over the person of the accused is acquired upon his arrest or voluntary appearance. 10 One can be under the custody of the law but not yet subject to the jurisdiction of the court over his person, such as when a person arrested by virtue of a warrant files a motion before arraignment to quash the warrant. On the other hand, one can be subject to the jurisdiction of the court over his person, and yet not be in the custody of the law, such as when an accused escapes custody after his trial has commenced. 11 Being in the custody of the law signifies restraint on the person, who is thereby deprived of his own will and liberty, binding him to become obedient to the will of the law. 12 Custody of the law is literally custody over the body of the accused. It includes, but is not limited to, detention. The statement in Pico v. Judge Combong, Jr., 13 cited by the Court of Appeals should not have been separated from the issue in that case, which is the application for admission to bail of someone not yet in the custody of the law. The entire paragraph of our pronouncement in Pico reads: A person applying for admission to bail must be in the custody of the law or otherwise deprived of his liberty. A person who has not submitted himself to the jurisdiction of the court has no right to invoke the processes of that court. Respondent Judge should have diligently ascertained the whereabouts of the applicant and that he indeed had jurisdiction over the body of the accused before considering the application for bail. 13 While we stand by our above pronouncement in Pico insofar as it concerns bail, we clarify that, as a general rule, one who seeks an affirmative relief is deemed to have submitted to the jurisdiction of the court. 15 As we held in the aforecited case of Santiago, seeking an affirmative relief in court, whether in civil or criminal proceedings, constitutes voluntary appearance. Pico deals with an application for bail, where there is the special requirement of the applicant being in the custody of the law. In Feliciano v. Pasicolan, 16 we held that "[t]he purpose of bail is to secure ones release and it would be incongruous to grant bail to one who is free. Thus, bail is the security required and given for the release of a person who is in the custody of law." The rationale behind this special rule on bail is that it discourages and prevents resort to the former pernicious practice wherein the accused could just send another in his stead to post his bail, without recognizing the jurisdiction of the court by his personal appearance therein and compliance with the requirements therefor.17 There is, however, an exception to the rule that filing pleadings seeking affirmative relief constitutes voluntary appearance, and the consequent submission of ones person to the jurisdiction of the court. This is in the case of pleadings whose prayer is precisely for the avoidance of the jurisdiction of the court, which only leads to a special appearance. These pleadings are: (1) in civil cases, motions to dismiss on the ground of lack of jurisdiction over the person of the defendant, whether or not other grounds for dismissal are included; 18 (2) in criminal cases, motions to quash a complaint on the ground of lack of jurisdiction over the person of the accused; and (3) motions to quash a warrant of arrest. The first two are consequences of the fact that failure to file them would constitute a waiver of the defense of lack of jurisdiction over the person. The third is a consequence of the fact that it is the very legality of the court process forcing the submission of the person of the accused that is the very issue in a motion to quash a warrant of arrest.

To recapitulate what we have discussed so far, in criminal cases, jurisdiction over the person of the accused is deemed waived by the accused when he files any pleading seeking an affirmative relief, except in cases when he invokes the special jurisdiction of the court by impugning such jurisdiction over his person. Therefore, in narrow cases involving special appearances, an accused can invoke the processes of the court even though there is neither jurisdiction over the person nor custody of the law. However, if a person invoking the special jurisdiction of the court applies for bail, he must first submit himself to the custody of the law. In cases not involving the so-called special appearance, the general rule applies, i.e., the accused is deemed to have submitted himself to the jurisdiction of the court upon seeking affirmative relief. Notwithstanding this, there is no requirement for him to be in the custody of the law. The following cases best illustrate this point, where we granted various reliefs to accused who were not in the custody of the law, but were deemed to have placed their persons under the jurisdiction of the court. Note that none of these cases involve the application for bail, nor a motion to quash an information due to lack of jurisdiction over the person, nor a motion to quash a warrant of arrest: 1. In Allado v. Diokno, 19 on the prayer of the accused in a petition for certiorari on the ground of lack of probable cause, we issued a temporary restraining order enjoining PACC from enforcing the warrant of arrest and the respondent judge therein from further proceeding with the case and, instead, to elevate the records to us. 2. In Roberts, Jr. v. Court of Appeals,20 upon the accuseds Motion to Suspend Proceedings and to Hold in Abeyance Issuance of Warrants of Arrest on the ground that they filed a Petition for Review with the Department of Justice, we directed respondent judge therein to cease and desist from further proceeding with the criminal case and to defer the issuance of warrants of arrests against the accused. 3. In Lacson v. Executive Secretary,21 on the prayer of the accused in a petition for certiorari on the ground of lack of jurisdiction on the part of the Sandiganbayan, we directed the Sandiganbayan to transfer the criminal cases to the Regional Trial Court even before the issuance of the warrants of arrest. We hold that the circumstances forcing us to require custody of the law in applications for bail are not present in motions to quash the warrant of arrest. If we allow the granting of bail to persons not in the custody of the law, it is foreseeable that many persons who can afford the bail will remain at large, and could elude being held to answer for the commission of the offense if ever he is proven guilty. On the other hand, if we allow the quashal of warrants of arrest to persons not in the custody of the law, it would be very rare that a person not genuinely entitled to liberty would remain scot-free. This is because it is the same judge who issued the warrant of arrest who will decide whether or not he followed the Constitution in his determination of probable cause, and he can easily deny the motion to quash if he really did find probable cause after personally examining the records of the case. Moreover, pursuant to the presumption of regularity of official functions, the warrant continues in force and effect until it is quashed and therefore can still be enforced on any day and at any time of the day and night.22 Furthermore, the continued absence of the accused can be taken against him in the determination of probable cause, since flight is indicative of guilt. In fine, as much as it is incongruous to grant bail to one who is free, it is likewise incongruous to require one to surrender his freedom before asserting it. Human rights enjoy a higher preference in the hierarchy of rights than property rights,23 demanding that due process in the deprivation of liberty must come before its taking and not after. Quashing a warrant of arrest based on a subsequently filed petition for review with the Secretary of Justice and based on doubts engendered by the political climate constitutes grave abuse of discretion.

We nevertheless find grave abuse of discretion in the assailed actions of Judge Anghad. Judge Anghad seemed a little too eager of dismissing the criminal cases against the petitioners. First, he quashed the standing warrant of arrest issued by his predecessor because of a subsequently filed appeal to the Secretary of Justice, and because of his doubts on the existence of probable cause due to the political climate in the city. Second, after the Secretary of Justice affirmed the prosecutors resolution, he dismissed the criminal cases on the basis of a decision of this Court in another case with different accused, doing so two days after this Court resolved to issue a temporary restraining order against further proceeding with the case. After Judge Tumaliuan issued warrants for the arrest of petitioners, petitioner Miranda appealed the assistant prosecutors resolution before the Secretary of Justice. Judge Anghad, shortly after assuming office, quashed the warrant of arrest on the basis of said appeal. According to Judge Anghad, "x x x prudence dictates (that) and because of comity, a deferment of the proceedings is but proper."24 Quashal on this basis is grave abuse of discretion. It is inconceivable to charge Judge Tumaliuan as lacking in prudence and oblivious to comity when he issued the warrants of arrest against petitioners just because the petitioners might, in the future, appeal the assistant prosecutors resolution to the Secretary of Justice. But even if the petition for review was filed before the issuance of the warrants of arrest, the fact remains that the pendency of a petition for the review of the prosecutors resolution is not a ground to quash the warrants of arrest. In Webb v. de Leon,25 we held that the petitioners therein cannot assail as premature the filing of the information in court against them on the ground that they still have the right to appeal the adverse resolution of the DOJ Panel to the Secretary of Justice. Similarly, the issuance of warrants of arrest against petitioners herein should not have been quashed as premature on the same ground. The other ground invoked by Judge Anghad for the quashal of the warrant of arrest is in order if true: violation of the Constitution. Hence, Judge Anghad asked and resolved the question: In these double murder cases, did this Court comply or adhere to the above-quoted constitutional proscription, which is Sec. 2, Article III Bill of Rights; to Sec. 6(a), Rule 112, Rules of Criminal Procedure and to the above-cited decisional cases? To this query or issue, after a deep perusal of the arguments raised, this Court, through [its] regular Presiding Judge, finds merit in the contention of herein accusedmovant, Jose "Pempe" Miranda.26 Judge Anghad is referring to the following provision of the Constitution as having been violated by Judge Tumaliuan: Sec. 2. 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.27 However, after a careful scrutiny of the records of the case, including the supporting evidence to the resolution of the prosecutor in his determination of probable cause, we find that Judge Anghad gravely abused his discretion. According to petitioners: In this case, the nullity of the order of Judge Tumaliuan, for the arrest of the petitioners is apparent from the face of the order itself, which clearly stated that the determination of probable cause was based on the certification, under oath, of the fiscal and not on a separate determination personally made by the

Judge. No presumption of regularity could be drawn from the order since it expressly and clearly showed that it was based only on the fiscals certification.28 Petitioners claim is untrue. Judge Tumaliuans Joint Order contains no such indication that he relied solely on the prosecutors certification. The Joint Order even indicated the contrary: Upon receipt of the information and resolution of the prosecutor, the Court proceeded to determine the existence of a probable cause by personally evaluating the records x x x.[29] The records of the case show that the prosecutors certification was accompanied by supporting documents, following the requirement under Lim, Sr. v. Felix30 and People v. Inting.31 The supporting documents are the following: 1. Resolution dated 21 June 2001 of State Prosecutor Leo S. Reyes; 2. Affidavit dated 22 May 2001 of Modesto Gutierrez; 3. Affidavit dated 19 May 2001 of Romeo B. Ocon; 4. Joint Counter Affidavit dated 23 May 2001 of Mayor Jose C. Miranda and Reynaldo de la Cruz; 5. Affidavit dated 19 May 2001 of Alberto Dalmacio; 6. Decision dated 22 April 1999 of the Regional Trial Court of Manila, Branch 41 in Criminal Case No. 97-160355; 7. Sworn statement dated 27 April 2001 of Rodel Maderal; 8. Information dated 22 June 2001; 9. Affidavit-complaint of Virgilio Tuliao; and 10. Medico-legal Reports of the cadavers of Elezer Tuliao and Vicente Buazon. Hence, procedurally, we can conclude that there was no violation on the part of Judge Tumaliuan of Article III, Section 2, of the Constitution. Judge Anghad, however, focused on the substantive part of said section, i.e., the existence of probable cause. In failing to find probable cause, Judge Anghad ruled that the confession of SPO2 Maderal is incredible for the following reasons: (1) it was given after almost two years in the custody of the National Bureau of Investigation; (2) it was given by someone who rendered himself untrustworthy for being a fugitive for five years; (3) it was given in exchange for an obvious reward of discharge from the information; and (4) it was given during the election period amidst a "politically charged scenario where "Santiago City voters were pitted against each other along the lines of the Miranda camp on one side and former City Mayor Amelita S. Navarro, and allegedly that of DENR Secretary Heherson Alvarez on the other."32 We painstakingly went through the records of the case and found no reason to disturb the findings of probable cause of Judge Tumaliuan. It is important to note that an exhaustive debate on the credibility of a witness is not within the province of the determination of probable cause. As we held in Webb33: 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 x x x conviction." A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt. x x x Probable cause merely implies probability of guilt and should be determined in a summary manner. Preliminary investigation is not a part of trial x x x.

Dismissing a criminal case on the basis of a decision of this Court in another case with different accused constitutes grave abuse of discretion. Judge Anghad had quashed the warrant of arrest on the ground, among other things, that there was a petition for review of the assistant prosecutors resolution before the Secretary of Justice. However, after the Secretary of Justice affirmed the prosecutors resolution, Judge Anghad summarily dismissed the two criminal cases against the petitioners on the basis of the following explanation: Rodel Maderal was one of the accused in People vs. Wilfredo Leano, et al., RTC, Branch 41, Manila, and based from his sworn statements, he pinpointed to Mr. Miranda the mastermind and with him and the other police officers as the direct perpetrators, the October 9, 2001 Decision of the Supreme Court absolving the five cops of murder, certainly makes his sworn Statements a "narration of falsehood and lies" and that because of the decision acquitting said officers "who were likewise falsely linked by said Rodel Maderal in his April 27, 2001 statements, it is now beyond doubt that Rodel Maderal made untruthful, fabricated and perjured statements and therefore the same is without probable value." This Court agrees with the defenses views. Indeed, of what use is Maderals statements when the Supreme Court rejected the prosecutions evidence presented and adduced in Criminal Case No. 97-160355. Rodel Maderal is supposed to turn state witness in these two (2) cases but with the Supreme Court decision adverted to, the probative value of his statements is practically nil. xxxx This Court finds merit to the manifestation of the accused Miranda dated October 18, 2001, praying for the summary dismissal of the two (2) murder charges in view of the latest decision of the Supreme Court in People of the Philippines vs. Wilfredo Leao, et al., G.R. No. 13886, acquitting the accused therein and in effect disregarding all the evidence presented by the prosecution in that case. Accordingly, the two (2) informations [for] murder filed against Jose Miranda are ordered dismissed.34 This is a clear case of abuse of discretion. Judge Anghad had no right to twist our decision and interpret it to the discredit of SPO2 Maderal, who was still at large when the evidence of the prosecution in the Leao case was presented. A decision, even of this Court, acquitting the accused therein of a crime cannot be the basis of the dismissal of criminal case against different accused for the same crime. The blunder of Judge Anghad is even more pronounced by the fact that our decision in Leao was based on reasonable doubt. We never ruled in Leao that the crime did not happen; we just found that there was reasonable doubt as to the guilt of the accused therein, since the prosecution in that case relied on circumstantial evidence, which interestingly is not even the situation in the criminal cases of the petitioners in the case at bar as there is here an eyewitness: Rodel Maderal. The accused in Leao furthermore had no motive to kill respondent Tuliaos son, whereas petitioners herein had been implicated in the testimony of respondent Tuliao before the Senate Blue Ribbon Committee. It is preposterous to conclude that because of our finding of reasonable doubt in Leao, "it is now beyond doubt that Rodel Maderal made untruthful, fabricated and perjured statements and therefore the same is without probable value."35 On the contrary, if we are to permit the use of our decision in Leao, an acquittal on the ground of reasonable doubt actually points to the probability of the prosecutions version of the facts therein. Such probability of guilt certainly meets the criteria of probable cause. We cannot let unnoticed, too, Judge Anghads dismissal of the informations two days after we resolved to issue, upon the filing of a bond, a temporary restraining order prohibiting him from further proceeding with the case. The bond was filed the day after the informations were dismissed. While the dismissal of the case was able to beat the effectivity date of the temporary restraining order, such abrupt dismissal of the informations (days after this Courts resolve to issue a TRO against Judge Anghad) creates wild suspicions about the motives of Judge Anghad.

Nullification of a proceeding necessarily carries with it the reinstatement of the orders set aside by the nullified proceeding. In their second assignment of error, petitioners claim that the Court of Appeals did not recall or reinstate the warrants of arrest issued by Judge Tumaliuan, but instead directed Judge Anghad to issue apparently new warrants of arrest.36 According to the petitioners, it was an error for the Court of Appeals to have done so, without a personal determination of probable cause. We disagree. Whether the Court of Appeals ordered the issuance of new warrants of arrest or merely ordered the reinstatement of the warrants of arrest issued by Judge Tumaliuan is merely a matter of scrupulous semantics, the slight inaccuracy whereof should not be allowed to affect the dispositions on the merits, especially in this case where the other dispositions of the Court of Appeals point to the other direction. Firstly, the Court of Appeals had reinstated the 25 June 2001 Order of Judge Tumaliuan,37 which issued the warrants of arrest. Secondly, the Court of Appeals likewise declared the proceedings conducted by Judge Anghad void. Certainly, the declaration of nullity of proceedings should be deemed to carry with it the reinstatement of the orders set aside by the nullified proceedings. Judge Anghads order quashing the warrants of arrest had been nullified; therefore those warrants of arrest are henceforth deemed unquashed. Even if, however, the Court of Appeals had directed the issuance of new warrants of arrest based on a determination of probable cause, it would have been legally permissible for them to do so. The records of the preliminary investigation had been available to the Court of Appeals, and are also available to this Court, allowing both the Court of Appeals and this Court to personally examine the records of the case and not merely rely on the certification of the prosecutor. As we have ruled in Allado v. Diokno and Roberts v. Court of Appeals, the determination of probable cause does not rest on a subjective criteria. As we had resolved in those cases to overrule the finding of probable cause of the judges therein on the ground of grave abuse of discretion, in the same vein, we can also overrule the decision of a judge reversing a finding of probable cause, also on the ground of grave abuse of discretion. There is no double jeopardy in the reinstatement of a criminal case dismissed before arraignment In their third assignment of error, petitioners claim that the Court of Appeals committed a reversible error in ordering the reinstatement of Criminal Cases No. 36-3523 and No. 36-3524, alleging that the order of dismissal issued therein had become final and executory. According to petitioners: It is also worthy to point out at this juncture that the Joint Order of Judge Anghad dated November 14, 2001 is NOT ONE of those Orders which were assailed in the private respondent Tuliaos Petition for Certiorari, Mandamus and Prohibition filed by the private respondent before the Court of Appeals. As carefully enumerated in the first page of the assailed Decision, only the following Orders issued by Judge Anghad were questioned by private respondent, to wit: 1 .) Joint Order dated August 17, 2001; 2.) Order dated September 21, 2001;

3.) Joint Order dated October 16, 2001; and 4.) Joint Order dated October 22, 2001. Obviously, the Joint Order dated November 14, 2001 of Judge Anghad, which ultimately dismissed Criminal Cases Nos. 36-3523 AND 36-3524 is NOT included in the list of the assailed Order/Joint Orders. Hence, the Court of Appeals should not have passed upon the validity or nullity of the Joint Order of November 14, 2001.38 Petitioners must have forgotten that respondent Tuliaos Petition for Certiorari, Prohibition and Mandamus was filed not with the Court of Appeals, but with this Court. The Court of Appeals decided the case because we referred the same to them in our 19 November 2001 Resolution. Such petition was

filed on 25 October 2001, around three weeks before the 14 November 2001 Order. Upon receipt of the 14 November 2001 Order, however, respondent Tuliao lost no time in filing with this Court a Motion to Cite Public Respondent in Contempt, alleging that Judge Anghad "deliberately and willfully committed contempt of court when he issued on 15 November 2001 the Order dated 14 November 2001 dismissing the informations for murder." On 21 November 2001, we referred said motion to the Court of Appeals, in view of the previous referral of respondent Tuliaos petition for certiorari, prohibition and mandamus. Our referral to the Court of Appeals of the Motion to Cite Public Repondent in Contempt places the 14 November 2001 Order within the issues of the case decided by the Court of Appeals. In claiming that Judge Anghad committed contempt of this Court in issuing the 14 November 2001 Order, respondent Tuliao had ascribed to Judge Anghad an act much more serious than grave abuse of discretion. Respondent Tuliao claims that Judge Anghad issued the 14 November 2001 Order on 15 November 2001, antedating it so as to avoid the effects of our 12 November 2001 Resolution. In said 12 November 2001 Resolution, we resolved to issue a temporary restraining order enjoining Judge Anghad from further proceeding with the criminal cases upon the respondent Tuliaos filing of a bond in the amount of P20,000.00. Respondent Tuliao had filed the bond on 15 November 2005. While we cannot immediately pronounce Judge Anghad in contempt, seeing as disobedience to lawful orders of a court and abuse of court processes are cases of indirect contempt which require the granting of opportunity to be heard on the part of respondent,39 the prayer to cite public respondent in contempt and for other reliefs just and equitable under the premises should be construed to include a prayer for the nullification of said 14 November 2001 Order. In any case, the reinstatement of a criminal case dismissed before arraignment does not constitute double jeopardy. Double jeopardy cannot be invoked where the accused has not been arraigned and it was upon his express motion that the case was dismissed.40 As to respondent Tuliaos prayer (in both the original petition for certiorari as well as in his motion to cite for contempt) to disqualify Judge Anghad from further proceeding with the case, we hold that the number of instances of abuse of discretion in this case are enough to convince us of an apparent bias on the part of Judge Anghad. We further resolve to follow the case of People v. SPO1 Leao,41 by transferring the venue of Criminal Cases No. 36-3523 and No. 36-3524 to the City of Manila, pursuant to Article VIII, Section 4, of the Constitution. WHEREFORE, the petition is DENIED. The Decision dated 18 December 2002 and the Resolution dated 12 June 2003 of the Court of Appeals are hereby AFFIRMED, with the modification that Criminal Cases No. 36-3523 and No. 36-3524 be transferred to and raffled in the Regional Trial Court of the City of Manila. In this connection, 1) Let a copy of this decision be furnished the Executive Judge of the RTC of the City of Santiago, Isabela, who is directed to effect the transfer of the cases within ten (10) days after receipt hereof; 2) The Executive Judge of the RTC of the City of Santiago, Isabela, is likewise directed to report to this Court compliance hereto within ten (10) days from transfer of these cases; 3) The Executive Judge of the City of Manila shall proceed to raffle the criminal cases within ten (10) days from the transfer; 4) The Executive Judge of the City of Manila is likewise directed to report to this Court compliance with the order to raffle within ten (10) days from said compliance; and

5) The RTC Judge to whom the criminal cases are raffled is directed to act on said cases with reasonable dispatch. 6) Finally, Judge Anastacio D. Anghad is directed to issue forthwith warrants of arrest for the apprehension of petitioners Jose C. Miranda, Alberto P. Dalmacio, Romeo B. Ocon, and accused Rodel T. Maderal, conformably with the decision of the Court of Appeals dated 18 December 2002. The Temporary Restraining Order issued by this Court dated 4 August 2003 is hereby LIFTED. Costs against Petitioners. SO ORDERED. [G.R. No. 123504. December 14, 2000] P/INSP. RODOLFO SAMSON, PO3 JAMES BUSTINERA, PO2 PABLO TOTANES, and PO1 ADRIANO CRUZ, petitioners, vs. HON. TEOFISTO T. GUINGONA, JR., as Secretary of Justice, Chief State Prosecutor ZENON DE GUIA, and State Prosecutor PAULITA ACOSTAVILLARANTE and Prosecuting Attorney EMMANUEL VELASCO, respondents. The instant petition is to restrain the Secretary of Justice from conducting a reinvestigation of PNPCICC (Heirs of Datu Gemie Sinsuat vs. P/Sr. Insp. Rodolfo Samson, et al.,)[1]pursuant to an order[2] of the Regional Trial Court, Quezon City, Branch 79.[3] The facts are as follows: On July 13, 1995, at about 8:05 p.m., at Scout Reyes Street, Barangay Paligsahan, Quezon City, patrolmen of the Central Police District Command posted at the intersection of Scout Reyes Street and Mother Ignacia Street flagged a taxicab, with Datu Gemie Sinsuat as passenger. Instantly, the patrolmen shot Datu Sinsuat in different parts of the body, inflicting upon him multiple gunshot wounds, causing his death.[4] In August 1995, PNP-Criminal Investigation Service and Central Police District Command district director and the heirs of Gemie Sinsuat filed with the Department of Justice a complaint[5]for murder against Rodolfo Samson, James Bustinera, Pablo Totanes, Adriano Cruz, and police officers Ernesto Diaz, Fernando Nituan, Jaime de la Cueva, Nestor Tiotioen and Edwin Villanueva, for the killing of Datu Gemie Sinsuat, a son of a politician from Cotabato, on July 13, 1995, at Scout Reyes, Barangay Pinagkaisahan, Quezon City. The case was assigned to Prosecution Attorney Emmanuel Velasco. Accused Diaz, Nituan and dela Cueva admitted killing Datu Sinsuat but claimed self-defense since according to them, they killed Sinsuat during a shootout. On the other hand, accused Samson and Totanes denied any participation in the killing and alleged that they arrived at the scene of the crime after the shooting in response to a radio message requesting for assistance.[6] Accused Bustinera and Cruz submitted a separate joint counter-affidavit claiming that they arrived at the scene of the crime after the shootout. They brought the body of Datu Sinsuat to the Capitol Medical Center upon instructions of Captain Samson.[7] After investigation, on October 3, 1995, Prosecution Attorney Emmanuel Y. Velasco filed with the Regional Trial Court, Quezon City, an information[8] for murder against petitioners and other police officers, except Nestor Tiotioen and Edwin Villanueva, who turned state witnesses. On October 3, 1995, petitioners filed with the trial court a Very Urgent Motion for Judicial Determination of Existence of Probable Cause (with Prayer to Hold the Issuance of Warrant of Arrest)[9] praying:

WHEREFORE, it is respectfully prayed of this Honorable Court to personally determine the existence of probable cause before issuing the warrants for the arrest of the accused, and to dismiss these cases if it shall determine that no probable cause exists against the accused. Movants also pray that a warrant of arrest be held in abeyance until after the resolution of this case or in case a warrant has already been issued to recall the same with respect to the movants. On October 9, 1995, the trial court ruled that there was probable cause for the arrest, with no bail, of accused Ernesto Diaz, Fernando Nituan and Jaime de la Cueva.[10] On October 18, 1995, the trial court ruled that it was premature to discuss the merits of Exhibits A to F (for the prosecution) for the purpose of the issuance of a warrant of arrest considering that these exhibits were not presented during the preliminary investigation of the case and accused were not furnished copies of the same.[11] The trial court ordered the reinvestigation of the case with respect to petitioners. ThusPREMISES CONSIDERED, the Court finds that at the time of the filing of the information for murder against accused Samson, Totanes, Bustinera and Cruz based on the evidence presented during the preliminary investigation and Resolution dated September 29, 1995 issued by Prosecutor Emmanuel Y. Velasco, the Court finds no probable cause for the issuance of warrants of arrest against accused P/Sr. Insp. Rodolfo Samson, PO3 Pablo Totanes, PO3 James Bustinera and PO1 Adriano Cruz. The Chief State Prosecutor, Department of Justice or his Assistant Prosecutors is ordered to reinvestigate this case giving accused Samson, Totanes, Bustinera and Cruz opportunity to controvert Exhibits A to F with sub-markings. SO ORDERED.[12] Petitioners did not file any motion for reconsideration of the order. However, before the Department of Justice could conduct a reinvestigation, on February 6, 1996, petitioners filed with the Supreme Court the instant petition to enjoin respondents from further proceeding with the reinvestigation of the case or from resolving the same.[13] The issue is whether or not the Court may enjoin the Secretary of Justice from conducting a reinvestigation of the charges against petitioners as ordered by the trial court for determination of probable cause. We dismiss the petition. Petitioners plea for injunction to restrain the reinvestigation of the criminal case against them is not legally permissible. As a general rule, the Court will not issue writs of prohibition or injunction preliminary or final, to enjoin or restrain, criminal prosecution.[14] With more reason will injunction not lie when the case is still at the stage of preliminary investigation or reinvestigation.[15] However, in extreme cases, we have laid the following exceptions: (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 subjudice; (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.[16]

Petitioners have not shown that the case at bar falls within any of the recognized exceptions above set forth. Petitioners only rely on the probability that a reinvestigation may result in the remand of the case to the court and the issuance of a warrant of arrest. We find petitioners plea for a writ of injunction or temporary restraining order utterly without merit. As a rule, we do not interfere in the conduct of preliminary investigations or reinvestigations and leave to the investigating prosecutor sufficient latitude of discretion in the exercise of determination of what constitutes sufficient evidence as will establish probable cause for the filing of information against an offender.[17] WHEREFORE, the petition is hereby DISMISSED, for lack of merit. No costs. SO ORDERED. G.R. No. 164538 : August 9, 2010 METROPOLITAN BANK and TRUST COMPANY, Petitioner, vs. ROGELIO REYNADO and JOSE C. ADRANDEA,** Respondents. "It is a hornbook doctrine in our criminal law that the criminal liability for estafa is not affected by a compromise, for it is a public offense which must be prosecuted and punished by the government on its own motion, even though complete reparation [has] been made of the damage suffered by the private offended party. Since a criminal offense like estafa is committed against the State, the private offended party may not waive or extinguish the criminal liability that the law imposes for the commission of the crime."1cra1aw This Petition for Review on Certiorari under Rule 45 of the Rules of Court seeks the reversal of the Court of Appeals' (CA's) Decision2cra1aw dated October 21, 2002 in CA-G.R. SP No. 58548 and its further Resolution3cra1aw dated July 12, 2004 denying petitioner's Motion for Reconsideration.4cra1aw Factual Antecedents On January 31, 1997, petitioner Metropolitan Bank and Trust Company charged respondents before the Office of the City Prosecutor of Manila with the crime of estafa under Article 315, paragraph 1(b) of the Revised Penal Code. In the affidavit5cra1aw of petitioner's audit officer, Antonio Ivan S. Aguirre, it was alleged that the special audit conducted on the cash and lending operations of its Port Area branch uncovered anomalous/fraudulent transactions perpetrated by respondents in connivance with client Universal Converter Philippines, Inc. (Universal); that respondents were the only voting members of the branch's credit committee authorized to extend credit accommodation to clients up to P200,000.00; that through the so-called Bills Purchase Transaction, Universal, which has a paid-up capital of only P125,000.00 and actual maintaining balance of P5,000.00, was able to make withdrawals totaling P81,652,000.006cra1aw against uncleared regional checks deposited in its account at petitioner's Port Area branch; that, consequently, Universal was able to utilize petitioner's funds even before the seven-day clearing period for regional checks expired; that Universal's withdrawals against uncleared regional check deposits were without prior approval of petitioner's head office; that the uncleared checks were later dishonored by the drawee bank for the reason "Account Closed"; and, that respondents acted with fraud, deceit, and abuse of confidence. In their defense, respondents denied responsibility in the anomalous transactions with Universal and claimed that they only intended to help the Port Area branch solicit and increase its deposit accounts and daily transactions. Meanwhile, on February 26, 1997, petitioner and Universal entered into a Debt Settlement Agreement7cra1aw whereby the latter acknowledged its indebtedness to the former in the total amount

of P50,990,976.278cra1aw as of February 4, 1997 and undertook to pay the same in bi-monthly amortizations in the sum of P300,000.00 starting January 15, 1997, covered by postdated checks, "plus balloon payment of the remaining principal balance and interest and other charges, if any, on December 31, 2001."9cra1aw Findings of the Prosecutor Following the requisite preliminary investigation, Assistant City Prosecutor Winnie M. Edad (Prosecutor Edad) in her Resolution10cra1aw dated July 10, 1997 found petitioner's evidence insufficient to hold respondents liable for estafa. According to Prosecutor Edad:chan robles virtual law library The execution of the Debt Settlement Agreement puts complainant bank in estoppel to argue that the liability is criminal. Since the agreement was made even before the filing of this case, the relations between the parties [have] change[d], novation has set in and prevented the incipience of any criminal liability on the part of respondents.11cra1aw Thus, Prosecutor Edad recommended the dismissal of the case:chan robles virtual law library WHEREFORE, for insufficiency of evidence, it is respectfully recommended that the case be dismissed.12cra1aw On December 9, 1997, petitioner appealed the Resolution of Prosecutor Edad to the Department of Justice (DOJ) by means of a Petition for Review.13cra1aw Ruling of the Department of Justice On June 22, 1998, the DOJ dismissed the petition ratiocinating that:chan robles virtual law library It is evident that your client based on the same transaction chose to file estafa only against its employees and treat with kid gloves its big time client Universal who was the one who benefited from this transaction and instead, agreed that it should be paid on installment basis. To allow your client to make the choice is to make an unwarranted classification under the law which will result in grave injustice against herein respondents. Thus, if your client agreed that no estafa was committed in this transaction with Universal who was the principal player and beneficiary of this transaction[,] more so with herein respondents whose liabilities are based only on conspiracy with Universal. Equivocally, there is no estafa in the instant case as it was not clearly shown how respondents misappropriated theP53,873,500.00 which Universal owed your client after its checks deposited with Metrobank were dishonored. Moreover, fraud is not present considering that the Executive Committee and the Credit Committee of Metrobank were duly notified of these transactions which they approved. Further, no damage was caused to your client as it agreed [to] the settlement [with] Universal.14cra1aw A Motion for Reconsideration15cra1aw was filed by petitioner, but the same was denied on March 1, 2000 by then Acting Secretary of Justice Artemio G. Tuquero.16cra1aw Aggrieved, petitioner went to the CA by filing a Petition for Certiorari & Mandamus.17cra1aw Ruling of the Court of Appeals By Decision18cra1aw of October 21, 2002, the CA affirmed the twin resolutions of the Secretary of Justice. Citing jurisprudence19cra1awwherein we ruled that while novation does not extinguish criminal

liability, it may prevent the rise of such liability as long as it occurs prior to the filing of the criminal information in court.20cra1aw Hence, according to the CA, "[j]ust as Universal cannot be held responsible under the bills purchase transactions on account of novation, private respondents, who acted in complicity with the former, cannot be made liable [for] the same transactions."21cra1aw The CA added that "[s]ince the dismissal of the complaint is founded on legal ground, public respondents may not be compelled by mandamus to file an information in court."22cra1aw Incidentally, the CA totally ignored the Comment23cra1aw of the Office of the Solicitor General (OSG) where the latter, despite being the statutory counsel of public respondent DOJ, agreed with petitioner that the DOJ erred in dismissing the complaint. It alleged that where novation does not extinguish criminal liability for estafa neither does restitution negate the offense already committed.24cra1aw Additionally, the OSG, in sharing the views of petitioner contended that failure to implead other responsible individuals in the complaint does not warrant its dismissal, suggesting that the proper remedy is to cause their inclusion in the information.25cra1awThis notwithstanding, however, the CA disposed of the petition as follows:chan robles virtual law library WHEREFORE, the petition is DENIED due course and, accordingly, DISMISSED. Consequently, the resolutions dated June 22, 1998 and March 1, 2000 of the Secretary of Justice are AFFIRMED. SO ORDERED.26cra1aw Hence, this instant petition before the Court. On November 8, 2004, we required27cra1aw respondents to file Comment, not a motion to dismiss, on the petition within 10 days from notice. The OSG filed a Manifestation and Motion in Lieu of Comment28cra1aw while respondent Jose C. Adraneda (Adraneda) submitted his Comment29cra1aw on the petition. The Secretary of Justice failed to file the required comment on the OSG's Manifestation and Motion in Lieu of Comment and respondent Rogelio Reynado (Reynado) did not submit any. For which reason, we issued a show cause order30cra1aw on July 19, 2006. Their persistent non-compliance with our directives constrained us to resolve that they had waived the filing of comment and to impose a fine of P1,000.00 on Reynado. Upon submission of the required memorandum by petitioner and Adraneda, the instant petition was submitted for resolution. Issues Petitioner presented the following main arguments for our consideration: 1. Novation and undertaking to pay the amount embezzled do not extinguish criminal liability. 2. It is the duty of the public prosecutor to implead all persons who appear criminally liable for the offense charged. Petitioner persistently insists that the execution of the Debt Settlement Agreement with Universal did not absolve private respondents from criminal liability for estafa. Petitioner submits that the settlement affects only the civil obligation of Universal but did not extinguish the criminal liability of the respondents. Petitioner thus faults the CA in sustaining the DOJ which in turn affirmed the finding of Prosecutor Edad for committing apparent error in the appreciation and the application of the law on novation. By petitioner's claim, citing Metropolitan Bank and Trust Co. v. Tonda,31cra1aw the "negotiations pertain [to] and affect only the civil aspect of the case but [do] not preclude prosecution for the offense already committed."32cra1aw

In his Comment, Adraneda denies being a privy to the anomalous transactions and passes on the sole responsibility to his co-respondent Reynado as the latter was able to conceal the pertinent documents being the head of petitioner's Port Area branch. Nonetheless, he contends that because of the Debt Settlement Agreement, they cannot be held liable for estafa. The OSG, for its part, instead of contesting the arguments of petitioner, even prayed before the CA to give due course to the petition contending that DOJ indeed erred in dismissing the complaint for estafa. Given the facts of the case, the basic issue presented before this Court is whether the execution of the Debt Settlement Agreement precluded petitioner from holding respondents liable to stand trial for estafa under Art. 315 (1)(b) of the Revised Penal Code.33cra1aw Our Ruling We find the petition highly meritorious. Novation not a mode of extinguishing criminal liability for estafa; Criminal liability for estafa not affected by compromise or novation of contract. Initially, it is best to emphasize that "novation is not one of the grounds prescribed by the Revised Penal Code for the extinguishment of criminal liability."34cra1aw In a catena of cases, it was ruled that criminal liability for estafa is not affected by a compromise or novation of contract. In Firaza v. People35cra1aw and Recuerdo v. People,36cra1aw this Court ruled that in a crime of estafa, reimbursement or belated payment to the offended party of the money swindled by the accused does not extinguish the criminal liability of the latter. We also held in People v. Moreno37cra1aw and in People v. Ladera38cra1aw that "criminal liability for estafa is not affected by compromise or novation of contract, for it is a public offense which must be prosecuted and punished by the Government on its own motion even though complete reparation should have been made of the damage suffered by the offended party." Similarly in the case of Metropolitan Bank and Trust Company v. Tonda39cra1aw cited by petitioner, we held that in a crime of estafa, reimbursement of or compromise as to the amount misappropriated, after the commission of the crime, affects only the civil liability of the offender, and not his criminal liability. Thus, the doctrine that evolved from the aforecited cases is that a compromise or settlement entered into after the commission of the crime does not extinguish accused's liability for estafa. Neither will the same bar the prosecution of said crime. Accordingly, in such a situation, as in this case, the complaint for estafa against respondents should not be dismissed just because petitioner entered into a Debt Settlement Agreement with Universal. Even the OSG arrived at the same conclusion:chan robles virtual law library Contrary to the conclusion of public respondent, the Debt Settlement Agreement entered into between petitioner and Universal Converter Philippines extinguishes merely the civil aspect of the latter's liability as a corporate entity but not the criminal liability of the persons who actually committed the crime of estafa against petitioner Metrobank. x x x40cra1aw Unfortunately for petitioner, the above observation of the OSG was wittingly glossed over in the body of the assailed Decision of the CA. Execution of the Debt Settlement Agreement did not prevent the incipience of criminal liability. Even if the instant case is viewed from the standpoint of the law on contracts, the disposition absolving the respondents from criminal liability because of novation is still erroneous.

Under Article 1311 of the Civil Code, "contracts take effect only between the parties, their assigns and heirs, except in case where the rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law." The civil law principle of relativity of contracts provides that "contracts can only bind the parties who entered into it, and it cannot favor or prejudice a third person, even if he is aware of such contract and has acted with knowledge thereof."41cra1aw In the case at bar, it is beyond cavil that respondents are not parties to the agreement. The intention of the parties thereto not to include them is evident either in the onerous or in the beneficent provisions of said agreement. They are not assigns or heirs of either of the parties. Not being parties to the agreement, respondents cannot take refuge therefrom to bar their anticipated trial for the crime they committed. It may do well for respondents to remember that the criminal action commenced by petitioner had its genesis from the alleged fraud, unfaithfulness, and abuse of confidence perpetrated by them in relation to their positions as responsible bank officers. It did not arise from a contractual dispute or matters strictly between petitioner and Universal. This being so, respondents cannot rely on subject settlement agreement to preclude prosecution of the offense already committed to the end of extinguishing their criminal liability or prevent the incipience of any liability that may arise from the criminal offense. This only demonstrates that the execution of the agreement between petitioner and Universal has no bearing on the innocence or guilt of the respondents. Determination of the probable cause, a function belonging to the public prosecutor; judicial review allowed where it has been clearly established that the prosecutor committed grave abuse of discretion. In a preliminary investigation, a public prosecutor determines whether a crime has been committed and whether there is probable cause that the accused is guilty thereof.42cra1aw The Secretary of Justice, however, may review or modify the resolution of the prosecutor. "Probable cause is defined as such facts and circumstances that will 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."43cra1aw Generally, a public prosecutor is afforded a wide latitude of discretion in the conduct of a preliminary investigation. By way of exception, however, judicial review is allowed where respondent has clearly established that the prosecutor committed grave abuse of discretion that is, when he has exercised his discretion "in an arbitrary, capricious, whimsical or despotic manner by reason of passion or personal hostility, patent and gross enough as to amount to an evasion of a positive duty or virtual refusal to perform a duty enjoined by law."44cra1awTested against these guidelines, we find that this case falls under the exception rather than the general rule. A close scrutiny of the substance of Prosecutor Edad's Resolution dated July 10, 1997 readily reveals that were it not for the Debt Settlement Agreement, there was indeed probable cause to indict respondents for the crime charged. From her own assessment of the Complaint-Affidavit of petitioner's auditor, her preliminary finding is that "Ordinarily, the offense of estafa has been sufficiently established."45cra1aw Interestingly, she suddenly changed tack and declared that the agreement altered the relation of the parties and that novation had set in preventing the incipience of any criminal liability on respondents. In light of the jurisprudence herein earlier discussed, the prosecutor should not have gone that far and executed an apparent somersault. Compounding further the error, the DOJ in dismissing petitioner's petition, ruled out estafa contrary to the findings of the prosecutor. Pertinent portion of the ruling reads:chan robles virtual law library Equivocally, there is no estafa in the instant case as it was not clearly shown how respondents misappropriated theP53,873,500.00 which Universal owed your client after its checks deposited with Metrobank were dishonored. Moreover, fraud is not present considering that the Executive Committee and the Credit Committee of Metrobank were duly notified of these transactions which they approved. Further, no damage was caused to your client as it agreed [to] the settlement [with] Universal.46cra1aw

The findings of the Secretary of Justice in sustaining the dismissal of the Complaint are matters of defense best left to the trial court's deliberation and contemplation after conducting the trial of the criminal case. To emphasize, a preliminary investigation for the purpose of determining the existence of probable cause is "not a part of the trial. A full and exhaustive presentation of the parties' evidence is not required, but only such as may engender a well-grounded belief that an offense has been committed and that the accused is probably guilty thereof."47cra1aw 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."48cra1aw So we held in Balangauan v. Court of Appeals:49cra1aw Applying the foregoing disquisition to the present petition, the reasons of DOJ for affirming the dismissal of the criminal complaints for estafa and/or qualified estafa are determinative of whether or not it committed grave abuse of discretion amounting to lack or excess of jurisdiction. In requiring "hard facts and solid evidence" as the basis for a finding of probable cause to hold petitioners Bernyl and Katherene liable to stand trial for the crime complained of, the DOJ disregards the definition of probable cause that it is a reasonable ground of presumption that a matter is, or may be, well-founded, 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 and positive cause" nor does it import absolute certainty. It is merely based on opinion and reasonable belief; that is, the belief that the act or omission complained of constitutes the offense charged. While probable cause demands more than "bare suspicion," it requires "less than evidence which would justify conviction." Herein, the DOJ reasoned as if no evidence was actually presented by respondent HSBC when in fact the records of the case were teeming; or it discounted the value of such substantiation when in fact the evidence presented was adequate to excite in a reasonable mind the probability that petitioners Bernyl and Katherene committed the crime/s complained of. In so doing, the DOJ whimsically and capriciously exercised its discretion, amounting to grave abuse of discretion, which rendered its resolutions amenable to correction and annulment by the extraordinary remedy of certiorari. In the case at bar, as analyzed by the prosecutor, a prima facie case of estafa exists against respondents. As perused by her, the facts as presented in the Complaint-Affidavit of the auditor are reasonable enough to excite her belief that respondents are guilty of the crime complained of. In Andres v. Justice Secretary Cuevas50cra1aw we had occasion to rule that the "presence or absence of the elements of the crime is evidentiary in nature and is a matter of defense that may be passed upon after a full-blown trial on the merits."51cra1aw Thus confronted with the issue on whether the public prosecutor and the Secretary of Justice committed grave abuse of discretion in disposing of the case of petitioner, given the sufficiency of evidence on hand, we do not hesitate to rule in the affirmative. We have previously ruled that grave abuse of discretion may arise when a lower court or tribunal violates and contravenes the Constitution, the law or existing jurisprudence. Non-inclusion of officers of Universal not a ground for the dismissal of the complaint. The DOJ in resolving to deny petitioner's appeal from the resolution of the prosecutor gave another ground - failure to implead the officers of Universal. It explained:chan robles virtual law library To allow your client to make the choice is to make an unwarranted classification under the law which will result in grave injustice against herein respondents. Thus, if your client agreed that no estafa was committed in this transaction with Universal who was the principal player and beneficiary of this transaction[,] more so with herein respondents whose liabilities are based only on conspiracy with Universal.52cra1aw

The ratiocination of the Secretary of Justice conveys the idea that if the charge against respondents rests upon the same evidence used to charge co-accused (officers of Universal) based on the latter's conspiratorial participation, the non-inclusion of said co-accused in the charge should benefit the respondents. The reasoning of the DOJ is flawed. Suffice it to say that it is indubitably within the discretion of the prosecutor to determine who must be charged with what crime or for what offense. Public prosecutors, not the private complainant, are the ones obliged to bring forth before the law those who have transgressed it. Section 2, Rule 110 of the Rules of Court53cra1aw mandates that all criminal actions must be commenced either by complaint or information in the name of the People of the Philippines against all persons who appear to be responsible therefor. Thus the law makes it a legal duty for prosecuting officers to file the charges against whomsoever the evidence may show to be responsible for the offense. The proper remedy under the circumstances where persons who ought to be charged were not included in the complaint of the private complainant is definitely not to dismiss the complaint but to include them in the information. As the OSG correctly suggested, the proper remedy should have been the inclusion of certain employees of Universal who were found to have been in cahoots with respondents in defrauding petitioner. The DOJ, therefore, cannot seriously argue that because the officers of Universal were not indicted, respondents themselves should not likewise be charged. Their non-inclusion cannot be perversely used to justify desistance by the public prosecutor from prosecution of the criminal case just because not all of those who are probably guilty thereof were charged. Mandamus a proper remedy when resolution of public respondent is tainted with grave abuse of discretion. Mandamus is a remedial measure for parties aggrieved. It shall issue when "any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station."54cra1aw The writ of mandamus is not available to control discretion neither may it be issued to compel the exercise of discretion. Truly, it is a matter of discretion on the part of the prosecutor to determine which persons appear responsible for the commission of a crime. However, the moment he finds one to be so liable it becomes his inescapable duty to charge him therewith and to prosecute him for the same. In such a situation, the rule loses its discretionary character and becomes mandatory. Thus, where, as in this case, despite the sufficiency of the evidence before the prosecutor, he refuses to file the corresponding information against the person responsible, he abuses his discretion. His act is tantamount to a deliberate refusal to perform a duty enjoined by law. The Secretary of Justice, on the other hand, gravely abused his discretion when, despite the existence of sufficient evidence for the crime of estafa as acknowledged by the investigating prosecutor, he completely ignored the latter's finding and proceeded with the questioned resolution anchored on purely evidentiary matters in utter disregard of the concept of probable cause as pointed out in Balangauan. To be sure, findings of the Secretary of Justice are not subject to review unless shown to have been made with grave abuse.55cra1aw The present case calls for the application of the exception. Given the facts of this case, petitioner has clearly established that the public prosecutor and the Secretary of Justice committed grave abuse of discretion. WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals in CA-G.R. SP No. 58548 promulgated on October 21, 2002 affirming the Resolutions dated June 22, 1998 and March 1, 2000 of the Secretary of Justice, and its Resolution dated July 12, 2004 denying reconsideration thereon are hereby REVERSED and SET ASIDE. The public prosecutor is ordered to file the necessary information for estafa against the respondents. SO ORDERED.

[G.R. No. 133289. December 23, 1999] LICERIO A. ANTIPORDA, JR., ELITERIO RUBIACO, VICTOR GASCON and CAESAR TALIA petitioners, vs. HON. FRANCIS E. GARCHITORENA, HON. EDILBERTO G. SANDOVAL, HON. CATALINO CASTAEDA, JR. in their capacity as Presiding Justice and Associate Justices of the Sandiganbayan respondents. This is a Petition for Certiorari and Prohibition with Preliminary Injunction and/or Temporary Restraining Order to restrain the respondent Justices of the First Division of the Sandiganbayan from further proceeding with Crim. Case No. 24339 and from enforcing the warrants for the arrest of the accused named therein (herein petitioners) or to maintain the status quo until further orders from this Court. The antecedent facts of the case are as follows: Accused Licerio A. Antiporda, Jr., Eliterio Rubiaco, Victor Gascon, and Caesar Talla were charged with the crime of kidnapping one Elmer Ramos in an Information dated September 18, 1997. It was filed with the First Division of the Sandiganbayan comprised of the Honorable Francis E. Garchitorena, Edilberto E. Sandoval, and Catalino Castaeda, Jr. The Information reads as follows: That on or about September 1, 1995, in the Municipality of Sanchez Mira, Province of Cagayan and within the jurisdiction of this Honorable Court, the said accused Eliterio Rubiaco, Caesar Talla, Vicente Gascon and Licerio Antiporda, Jr., armed with guns, conspiring together and helping one another, by means of force, violence and intimidation and without legal grounds or any authority of law, did then and there willfully, unlawfully and feloniously kidnap and carry away one Elmer Ramos from his residence in Marzan, Sanchez Mira, Cagayan against his will with the use of a Maroon Tamaraw FX motor vehicle. CONTRARY TO LAW[1] On November 10, 1997, the Court issued an order giving the prosecution represented by Prosecutor Evelyn T. Lucero Agcaoili thirty (30) days within which to submit the amendment to the Information. The said order is quoted in full as follows: O R D E R This morning, the prosecution represented by Prosecutor Evelyn T. Lucero Agcaoili appeared in response to this Courts Order of clarification on the propriety of proceeding with the Information as it stands. On her own, Prosecutor Agcaoili informed the Court that there were inadequacies in the allegations in the Information for which reason she would beg leave to amend the same. The Court for its part expressed anxiety as to the Courts jurisdiction over the case considering that it was not clear whether or not the subject matter of the accusation was office related. For this purpose, Prosecutor Agcaoili is given thirty (30) days within which to submit the amendment embodying whatever changes she believes are appropriate or necessary in order for the Information to effectively describe the offense herein charged. Within the same period, Prosecutor Agcaoili shall submit an expansion of the recommendation to file the instant Information against the accused before this Court indicating thereon the office related character of the accusation herein so that the Court might effectively exercise its jurisdiction over the same. SO ORDERED.[2]

The prosecution on even date complied with the said order and filed an Amended Information, which was admitted by the Sandiganbayan in a resolution dated November 24, 1997.[3] The Amended Information thus reads: That on or about September 10, 1997, at Sanchez Mira, Cagayan and within the jurisdiction of this Honorable Court, the accused Licerio Antiporda, Jr.,being the Municipal Mayor of Buguey, Cagayan in the exercise of his official duties as such and taking advantage of his position, ordered, confederated and conspired with Juan Gallardo, Barangay Captain of San Lorenzo, Buguey, Cagayan (now deceased) and accused Eliterio Rubiaco, barangay councilman of San Lorenzo, Buguey, Cagayan, Vicente Gascon and Caesar Talla with the use of firearms, force, violence and intimidation, did then and there willfully, unlawfully and feloniously kidnap and abduct the victim Elmer Ramos without any authority of law from his residence at Marzan, Sanchez Mira, Cagayan against his will, with the use of a Maroon Tamaraw FX motor vehicle and subsequently bring and detain him illegally at the residence of accused Mayor Licerio Antiporda, Jr. for more than five (5) days. CONTRARY TO LAW.[4] Accused then filed an Urgent Omnibus Motion dated November 16, 1997 praying that a reinvestigation of the case be conducted and the issuance of warrants of arrest be deferred.[5] An order dated November 26, 1997 was penned by Prosecutor Evelyn T. Lucero-Agcaoili recommending the denial of the accuseds Urgent Omnibus Motion[6] was approved by Ombudsman Aniano A. Desierto on January 9, 1998.[7] The accused thereafter filed on March 5, 1998 a Motion for New Preliminary Investigation and to Hold in Abeyance and/or Recall Warrant of Arrest Issued.[8] The same was denied in an order given in open court dated March 12, 1998 "on the ground that there was nothing in the Amended Information that was added to the original Information so that the accused could not claim a right to be heard separately in an investigation in the Amended Information. Additionally, the Court ruled that 'since none of the accused have submitted themselves to the jurisdiction of the Court, the accused are not in a position to be heard on this matter at this time' (p. 245, Record)."[9] Subsequently, the accused filed on March 24, 1998 a Motion to Quash the Amended Information for lack of jurisdiction over the offense charged.[10] On March 27, 1998, the Sandiganbayan issued an Order, to wit: "The Motion to Quash filed in behalf of the accused by Atty. Orlando B. Consigna is ignored, it appearing that the accused have continually refused or otherwise failed to submit themselves to the jurisdiction of this Court. At all events there is an Amended Information here which makes an adequate description of the position of the accused thus vesting this Court with the office related character of the offense of the accused. "SO ORDERED."[11] A motion for reconsideration was filed on April 3, 1998 by the accused wherein it was alleged that the filing of the Motion to Quash and the appearance of their counsel during the scheduled hearing thereof amounted to their voluntary appearance and invested the court with jurisdiction over their persons.[12] The Sandiganbayan denied the motion for reconsideration filed by the accused in its resolution dated April 24, 1998.[13] Hence, this petition filed by Licerio A. Antiporda, Jr., Eliterio Rubiaco, Victor Gascon, and Caesar Talla.

The petitioners pose the following questions for the resolution of this Court. a) CAN THE SANDIGANBAYAN, WHICH HAS NO JURISDICTION OVER THE OFFENSE CHARGED IN THE ORIGINAL INFORMATION, SUBSEQUENTLY ACQUIRE SUCH JURISDICTION BY THE SIMPLE EXPEDIENT OF AMENDING THE INFORMATION TO SUPPLY, FOR THE FIRST TIME, JURISDICTIONAL FACTS NOT PREVIOUSLY AVERRED IN THE ORIGINAL INFORMATION? and b) COROLLARILY, CAN THE AMENDED INFORMATION BE ALLOWED WITHOUT CONDUCTING ANEW A PRELIMINARY INVESTIGATION FOR THE GRAVER OFFENSE CHARGED THEREIN? The petition is devoid of merit. Jurisdiction is the power with which courts are invested for administering justice, that is, for hearing and deciding cases. In order for the court to have authority to dispose of the case on the merits, it must acquire jurisdiction over the subject matter and the parties.[14] Section 4, paragraph (a) of P.D. No. 1606, as amended by P.D. No. 1861 provides for the jurisdiction of the Sandiganbayan: Sec. 4. Jurisdiction. -- The Sandiganbayan shall exercise: (a) Exclusive original jurisdiction in all cases involving: xxx (2) Other offenses or felonies committed by public officers and employees in relation to their office, including those employed in government-owned or controlled corporations, whether simple or complexed with other crimes, where the penalty prescribed by law is higher than prision correccional or imprisonment for six (6) years, or a fine of P6,000.00. Provided, however, That offenses or felonies mentioned in this paragraph where the penalty prescribed by law does not exceed prision correccional or imprisonment for six (6) years or a fine of P6,000.00 shall be tried by the proper Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court and Municipal Circuit Trial Court. The Sandiganbayan exercises not only civil but also criminal jurisdiction. Criminal jurisdiction, as defined in the case of People vs. Mariano[15], is necessarily the authority to hear and try a particular offense and impose the punishment for it. The case of Arula vs. Espino[16]enumerates the requirements wherein a court acquires jurisdiction to try a criminal case, to wit: To paraphrase: beyond the pale of disagreement is the legal tenet that a court acquires jurisdiction to try a criminal case only when the following requisites concur: (1) the offense is one which the court is by law authorized to take cognizance of, (2) the offense must have been committed within its territorial jurisdiction, and (3) the person charged with the offense must have been brought in to its forum for trial, forcibly by warrant of arrest or upon his voluntary submission to the court. The petitioners argue that the Sandiganbayan had no jurisdiction to take cognizance of the case because the original information did not allege that one of the petitioners, Licerio A. Antiporda, Jr., took advantage of his position as mayor of Buguey, Cagayan to order the kidnapping of Elmer Ramos. They likewise assert that lacking jurisdiction a court can not order the amendment of the information. In the same breath, they contend however that the Sandiganbayan had jurisdiction over the persons of the accused.

They question the assumption of jurisdiction by the Sandiganbayan over their case yet they insist that said court acquired jurisdiction over their motion to quash. The petitioner can not have their cake and eat it too. In the aforementioned case of Arula vs. Espino[17]it was quite clear that all three requisites, i.e., jurisdiction over the offense, territory and person, must concur before a court can acquire jurisdiction to try a case. It is undisputed that the Sandiganbayan had territorial jurisdiction over the case. And we are in accord with the petitioners when they contended that when they filed a motion to quash it was tantamount to a voluntary submission to the Courts authority. They cite the case of Layosa vs. Rodriguez[18] in support of their contention. For therein, it was ruled that the voluntary appearance of the accused at the pre-suspension hearing amounted to his submission to the courts jurisdiction even if no warrant of arrest has yet been issued. To counter this contention of the petitioners the prosecution adverted to case of de los SantosReyes vs. Montesa, Jr.[19] which was decided some 28 years after the Layosa case. In this more recent case, it was held that: xxx the accused xxx have no right to invoke the processes of the court since they have not been placed in the custody of the law or otherwise deprived of their liberty by reason or as a consequence of the filling of the information. For the same reason, the court had no authority to act on the petition. We find that the case of Layosa and de los Santos-Reyes are not inconsistent with each other since both these cases discussed the rules on when a court acquires jurisdiction over the persons of the accused, i.e., either through the enforcement of warrants of arrest or their voluntary submission to the court. The only difference, we find, is that the de los Santos-Reyes case harped mainly on the warrant of arrest angle while the Layosa case dealt more on the issue of voluntary submission ruling, that the appearance at the hearing through a lawyer was a submission to the courts jurisdiction. Having discussed the third requirement we now come to the question of whether or not the Sandiganbayan had jurisdiction over the offense charged. We answer in the negative. The original Information filed with the Sandiganbayan did not mention that the offense committed by the accused is office-related. It was only after the same was filed that the prosecution belatedly remembered that a jurisdictional fact was omitted therein. However, we hold that the petitioners are estopped from assailing the jurisdiction of the Sandiganbayan for in the supplemental arguments to motion for reconsideration and/or reinvestigation dated June 10, 1997[20] filed with the same court, it was they who challenged the jurisdiction of the Regional Trial Court over the case and clearly stated in their Motion for Reconsideration that the said crime is work connected, which is hereunder quoted, as follows: Respondents (petitioners herein) have thoroughly scanned the entire records of the instant case and no where is there any evidence to show that the Honorable Prosecution Office of the Province of Cagayan have been authorized by the Office of the Honorable Ombudsman to conduct the Preliminary Investigation much less had the former office been authorized to file the corresponding Information as the said case, if evidence warrants, fall exclusively with the jurisdiction of the Honorable Sandiganbayan notwithstanding the presence of other public officers whose salary range is below 27 and notwithstanding the presence of persons who are not public officers.

It is a well-settled rule that a party cannot invoke the jurisdiction of a court to secure affirmative relief against his opponent, and after obtaining or failing to obtain such relief, repudiate or question that same jurisdiction.[21] We therefore hold that the Sandiganbayan has jurisdiction over the case because of estoppel and it was thus vested with the authority to order the amendment of the Information. Rule 110, Section 14 of the Rules of Court provides thus: Section 14. Amendment. The information or complaint may be amended, in substance or form, without leave of court, at any time before the accused pleads; and thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, when the same can be done without prejudice to the rights of the accused. xxx xxx xxx

Petitioner prayed that a reinvestigation be made in view of the Amended Information. We hold that the reinvestigation is not necessary anymore. A reinvestigation is proper only if the accuseds substantial rights would be impaired. In the case at bar, we do not find that their rights would be unduly prejudiced if the Amended Information is filed without a reinvestigation taking place. The amendments made to the Information merely describe the public positions held by the accused/petitioners and stated where the victim was brought when he was kidnapped. It must here be stressed that a preliminary investigation is essentially inquisitorial, and it is often the only means of discovering the persons who may be reasonably charged with a crime, to enable the prosecutor to prepare his complaint or information. It is not a trial of the case on the merits and has no purpose except that of determining whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof, and it does not place the persons accused in jeopardy. It 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.[22] The purpose of a preliminary investigation has been achieved already and we see no cogent nor compelling reason why a reinvestigation should still be conducted. As an aside, an offense is considered committed in relation to office when it is intimately connected with their respective offices and was perpetrated while they were in the performance, though improper or irregular, of their official functions.[23] In the case of Cunanan vs. Arceo, it was held that: ... the absence in the information filed on 5 April 1991 before Branch 46 of the RTC of San Fernando, Pampanga, of an allegation that petitioner had committed the offense charged in relation to his office is immaterial and easily remedied. Respondent RTC judges had forwarded petitioners case to the Sandiganbayan, and the complete records transmitted thereto in accordance with the directions of this Court set out in the Asuncion case: x x x As if it was originally filed with [the Sandiganbayan]. That Information may be amended at any time before arraignment before the Sandiganbayan, and indeed, by leave of court at any time before judgment is rendered by the Sandiganbayan, considering that such an amendment would not affect the juridical nature of the offense charged (i.e., murder), the qualifying circumstances alleged in the information, or the defenses that petitioner may assert before the Sandiganbayan. In other words, the amendment may be made before the Sandiganbayan without surprising the petitioner or prejudicing his substantive rights.[24] (Underscoring Supplied) WHEREFORE, IN VIEW OF THE FOREGOING, the petition is hereby DISMISSED. SO ORDERED.

[G.R. No. 123340. August 29, 2002] LUTGARDA CRUZ, petitioner, vs. THE COURT OF APPEALS, PEOPLE OF THE PHILIPPINES and the HEIRS OF ESTANISLAWA C. REYES, represented by MIGUEL C. REYES, respondents. The Case This is a petition for review on certiorari under Rule 45 of the Rules of Court to reverse the Decision of the Court of Appeals dated March 31, 1995[1] and its Resolution dated December 1, 1995.[2] The Court of Appeals dismissed for being insufficient in substance the Petition for Certiorari and Mandamus, which sought to nullify two orders of the Regional Trial Court of Manila, Branch 53, dated April 18, 1994 and May 6, 1994. The Antecedent Facts The City Prosecutor of Manila charged petitioner with the crime of Estafa thru Falsification of Public Document before the Manila Regional Trial Court.[3] Petitioner executed before a Notary Public in the City of Manila an Affidavit of Self-Adjudication of a parcel of land stating that she was the sole surviving heir of the registered owner when in fact she knew there were other surviving heirs. Since the offended party did not reserve the right to file a separate civil action arising from the criminal offense, the civil action was deemed instituted in the criminal case. After trial on the merits, the trial court rendered its decision dated January 17, 1994 acquitting petitioner on the ground of reasonable doubt. In the same decision, the trial court rendered judgment on the civil aspect of the case, ordering the return to the surviving heirs of the parcel of land located in Bulacan.[4] On January 28, 1994, petitioner received a copy of the decision. On February 10, 1994, petitioner filed by registered mail a motion for reconsideration dated February 7, 1994, assailing the trial courts ruling on the civil aspect of the criminal case. Petitioner furnished the City Prosecutor a copy of the motion by registered mail. On April 18, 1994, the trial court denied petitioners motion for reconsideration stating: Acting on the Motion for Reconsideration dated February 7, 1994, filed by the accused through counsel and considering that there is nothing to show that the Office of the City Prosecutor was actually furnished or served with a copy of the said Motion for Reconsideration within the reglementary period of fifteen (15) days from receipt by the accused on January 28, 1994 of a copy of the Courts decision dated January 17, 1994, so that the same is already final and executory, let the Motion for Reconsideration be Denied for lack of merit.[5] Petitioner moved for a reconsideration of the trial courts order of April 18, 1994. The trial court denied the same in an order dated May 6, 1994, to wit: Under the Interim Rules, no party shall be allowed a second motion for reconsideration of a final order or judgment (Sec. 4). The motion of accused dated 22 April 1994 is a violation of this rule. WHEREFORE, said motion is DENIED.[6]

Left with no recourse, petitioner filed a petition for certiorari and mandamus with the Court of Appeals to nullify the two assailed orders of the trial court. Petitioner also asked the Court of Appeals to compel the trial court to resolve her motion for reconsideration of the decision dated February 7, 1994. The Ruling of the Court of Appeals On March 31, 1995, the Court of Appeals denied due course to the petition and dismissed the case for being insufficient in substance. The Court of Appeals sustained the trial courts order of April 18, 1994 denying petitioners motion for reconsideration. The Court of Appeals declared in part: Section 10, Rule 13, Rules of Court, provides as follows: SEC. 10. Proof of Service. Proof of personal service shall consist of a written admission of the party served, or the affidavit of the party serving, containing a full statement of the date, place and manner of service. If the service is by ordinary mail, proof thereof shall consist of an affidavit of the person mailing of facts showing compliance with Section 5 of this rule. If service is made by registered mail, proof shall be made by such affidavit and the registry receipt issued by the mailing office. The registry return card shall be filed immediately upon receipt thereof by the sender, or in lieu thereof the letter unclaimed together with the certified or sworn copy of the notice given by the postmaster to the addressee. Patent from the language of the said section is that in case service is made by registered mail, proof of service shall be made by (a) affidavit of the person mailing and (b) the registry receipt issued by the mailing office. Both must concur. In the case at bench, there was no such affidavit or registry receipt when the motion was considered. Thus, respondent Judge cannot be said to have acted with grave abuse of discretion amounting to lack of jurisdiction, in ruling in the manner he did.[7] The Court of Appeals also affirmed the trial courts order of May 6, 1994 denying the subsequent motion for reconsideration, as follows: xxx, while there is merit in petitioners submission that the motion for reconsideration dated April 22, 1994 was not a second motion for reconsideration of a final order or judgment, as contemplated in the Interim Rules because the motion sought to impugn the order dated 18 April 1994 not on the basis of the issues raised in the motion for reconsideration dated 07 February 1994 but on the erroneous legal conclusion of the order dated May 6, 1994,[8] this is already academic. The decision dated January 7, 1994 had long become final when the second motion for reconsideration was filed on 03 May 1994. Hence, the pairing Judge who issued the order on 06 May 1994 had no more legal competence to promulgate the same.[9] Finally, the Court of Appeals upheld the assailed decision of the trial court on the civil aspect of the case, to wit: x x x, the institution of a criminal action carries with it the civil action for the recovery of the civil liability arising from the offense charged. There was neither reservation nor waiver of the right to file the civil action separately nor has one been instituted to the criminal action. Hence, the civil action for the civil liability has been impliedly instituted with the filing of the criminal case before respondent Judge. This is the law on the matter. The proposition submitted by petitioner that the court presided by respondent Judge had no jurisdiction over the property because it is located in Bulacan - outside the territorial jurisdiction of said court -does not hold water. Being a civil liability arising from the offense charged, the

governing law is the Rules of Criminal Procedure, not the civil procedure rules which pertain to civil action arising from the initiatory pleading that gives rise to the suit.[10] In the dispositive portion of its assailed decision, the Court of Appeals declared: WHEREFORE, the instant petition not being sufficient in substance is hereby DENIED DUE COURSE and the case DISMISSED.[11] In a resolution dated December 1, 1995, the Court of Appeals denied petitioners motion for reconsideration.[12] Hence, this petition. The Issues In her Memorandum, petitioner raises the following issues: 1. WHETHER THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE PROSECUTION WAS DULY FURNISHED WITH COPY OF THE PETITIONERS MOTION FOR RECONSIDERATION WITH RESPECT TO THE DECISION ON THE CIVIL ASPECT OF CRIMINAL CASE NO. 87-54773 (SIC) OF THE REGIONAL TRIAL COURT OF MANILA, BRANCH 53.

2. WHETHER THE COURT OF APPEALS ERRED IN FINDING THAT THE REGIONAL TRIAL COURT OF MANILA HAD JURISDICTION TO RENDER JUDGMENT ON THE CIVIL ASPECT OF CRIMINAL CASE NO. 87-57743 FOR FALSIFICATION OF PUBLIC DOCUMENT, INVOLVING A PROPERTY LOCATED IN BULACAN. 3. WHETHER THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE PETITIONER WAS DENIED DUE PROCESS WHEN THE REGIONAL TRIAL COURT OF MANILA, BRANCH 53, RENDERED DECISION ON THE CIVIL ASPECT OF CRIMINAL CASE NO. 87-57743.[13] The Ruling of the Court We grant the petition. When the accused is acquitted on reasonable doubt but is adjudged civilly liable, his motion for reconsideration of the civil aspect must be served not only on the prosecution, also on the offended party if the latter is not represented by a private counsel. Moreover, if the trial court has jurisdiction over the subject matter and over the accused, and the crime was committed within its territorial jurisdiction, it necessarily exercises jurisdiction over all matters that the law requires the court to resolve. This includes the power to order the restitution to the offended party of real property located in another province.

Absence of Proof of Service The first issue is whether petitioners motion for reconsideration dated February 7, 1994 complied with the mandatory requirements of Section 6, Rule 15 on proof of service. Petitioner submits that the Court of Appeals erred in sustaining the trial courts finding that the City Prosecutor was not duly and timely furnished with petitioners motion for reconsideration of February 7, 1994.

Petitioner asserts that both copies of the motion for reconsideration were sent to the trial court and the City Prosecutor by registered mail on February 10, 1994. Petitioner relies on jurisprudence that the date of mailing is the date of filing, arguing that the date of mailing of both motions was on February 10, 1994. Petitioner maintains that the motion was properly filed within the 15-day period, citing the registry return card which shows actual receipt on February 22, 1994 by the City Prosecutor of a copy of the motion. The Court of Appeals, noting that petitioner received a copy of the decision on January 28, 1994, stated that petitioner had until February 12, 1994 to appeal the decision or file a motion for reconsideration. The Court of Appeals ruled that petitioner, by filing a motion for reconsideration without any proof of service, merely filed a scrap of paper and not a motion for reconsideration. Hence, the reglementary period of petitioner to appeal continued to run and lapsed after the 15-day period, making the trial courts decision final and executory. We agree with the Court of Appeals that petitioner patently failed to comply with the mandatory requirements on proof of service insofar as the public prosecutor is concerned. The Court has stressed time and again that non-compliance with Sections 4, 5 and 6 of Rule 15 is a fatal defect. The wellsettled rule is that a motion which fails to comply with Sections 4, 5, and 6 of Rule 15 is a useless piece of paper. If filed, such motion is not entitled to judicial cognizance and does not stop the running of the reglementary period for filing the requisite pleading.[14] Section 6 of Rule 15 reads: SEC. 6. - Proof of service to be filed with motions. No motion shall be acted upon by the court, without proof of service of the notice thereof.[15](Emphasis supplied) From the language of the rule, proof of service is mandatory. Without such proof of service to the adverse party, a motion is nothing but an empty formality deserving no judicial cognizance. Section 13 of Rule 13 further requires that: SEC. 13. Proof of Service. x x x. If service is made by registered mail, proof shall be made by such affidavit and the registry receipt issued by the mailing office. The registry return card shall be filed immediately upon its receipt by the sender, or in lieu thereof the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee.[16] (Emphasis supplied) If service is by registered mail, proof of service consists of the affidavit of the person mailing and the registry receipt, both of which must be appended to the motion. Absent one or the other, or worse both, there is no proof of service. In the instant case, an examination of the record shows that petitioner received a copy of the trial courts decision of January 17, 1994 on January 28, 1994. Within the reglementary period to appeal, petitioner filed on February 10, 1994, by registered mail, a motion for reconsideration. However, petitioner failed to attach both the affidavit and the registry receipt to the motion for reconsideration as required by the Rules. The defect of the motion is apparent on its face. Petitioners motion for reconsideration was a mere scrap of paper as it did not contain the required proof of service. However, petitioner is contesting that part of the decision of the trial court finding him civilly liable even as he is acquitted from the criminal charge on reasonable doubt. This raises the issue of whether the public prosecutor is the only proper party to be served with petitioners motion for reconsideration. The present Rules do not require the accused to serve a copy of his motion for reconsideration on the offended party who may not be represented by a private counsel. The Rules require service only on the public prosecutor if the offended party is not represented by a private counsel.

A judgment of acquittal is immediately final and executory and the prosecution cannot appeal the acquittal because of the constitutional prohibition against double jeopardy. However, either the offended party or the accused may appeal the civil aspect of the judgment despite the acquittal of the accused. The public prosecutor has generally no interest in appealing the civil aspect of a decision acquitting the accused. The acquittal ends the work of the public prosecutor and the case is terminated as far as he is concerned. The real parties in interest in the civil aspect of a decision are the offended party and the accused. Thus, any appeal or motion for reconsideration of the civil aspect of a decision in a criminal case must be served on the other real party in interest. If the offended party appeals or moves for reconsideration, the accused is necessarily served a copy of the pleading through his counsel. If the accused appeals or moves for reconsideration, a lacuna arises if the offended party is not represented by a private counsel. In such a situation, under the present Rules only the public prosecutor is served the notice of appeal or a copy of the motion for reconsideration. To fill in this lacuna in the present Rules, we require that henceforth if the accused appeals or moves for reconsideration, he should serve a copy of his pleading on the offended party himself if the latter is not represented by a private counsel. This is in addition to service on the public prosecutor who is the counsel of record of the State. In the instant case, the Court notes that petitioner did not serve a copy of her motion for reconsideration on the offended party who was not represented by a private counsel in the trial court. In the interest of justice, and considering that the present Rules are silent on the matter, it is only fair to give petitioner a period of five days from receipt of this decision within which to serve a copy of her motion for reconsideration on the offended party.

Trial courts jurisdiction over the civil aspect. Petitioner maintains that the Court of Appeals erred in finding that the trial court had jurisdiction to render judgment on the civil aspect of the criminal case. Petitioner asserts that the Manila trial court had no jurisdiction over the parcel of land in Bulacan which is outside the trial courts territorial jurisdiction. In upholding the trial courts jurisdiction, the Court of Appeals held: Being a civil liability arising from the offense charged, the governing law is the Rules of Criminal Procedure, not the civil procedure rules which pertain to civil action arising from the initiatory pleading that gives rise to the suit.[17] We agree with the ruling of the Court of Appeals. Petitioner asserts that the location of the subject property outside the courts territorial jurisdiction deprived the trial court of jurisdiction over the civil aspect of the criminal case. This argument is contrary to the law and the rules. There are three important requisites which must be present before a court can acquire criminal jurisdiction. First, the court must have jurisdiction over the subject matter. Second, the court must have jurisdiction over the territory where the offense was committed. Third, the court must have jurisdiction over the person of the accused.[18] In the instant case, the trial court had jurisdiction over the subject matter as the law has conferred on the court the power to hear and decide cases involving estafa through falsification of a public document. The trial court also had jurisdiction over the offense charged since the crime was committed within its territorial jurisdiction. The trial court also acquired jurisdiction over the person of accused-petitioner because she voluntarily submitted to the courts authority.

Where the court has jurisdiction over the subject matter and over the person of the accused, and the crime was committed within its territorial jurisdiction, the court necessarily exercises jurisdiction over all issues that the law requires the court to resolve. One of the issues in a criminal case is the civil liability of the accused arising from the crime. Article 100 of the Revised Penal Code provides that [E]very person criminally liable for a felony is also civilly liable. Article 104 of the same Code states that civil liability x x x includes restitution. The action for recovery of civil liability is deemed instituted in the criminal action unless reserved by the offended party.[19] In the instant case, the offended party did not reserve the civil action and the civil action was deemed instituted in the criminal action. Although the trial court acquitted petitioner of the crime charged, the acquittal, grounded on reasonable doubt, did not extinguish the civil liability.[20] Thus, the Manila trial court had jurisdiction to decide the civil aspect of the instant case - ordering restitution even if the parcel of land is located in Bulacan. Consequently, while we find no reversible error in the decision of the Court of Appeals as to proof of service and the trial courts jurisdiction on the civil aspect, we remand this case for further proceedings in the interest of justice. WHEREFORE, petitioner is given five (5) days from receipt of this decision within which to serve a copy of her motion for reconsideration on the offended party. Let this case be remanded to the trial court for further proceedings. SO ORDERED. [G.R. No. 120640. August 8, 1996] EDUARDO M. COJUANGCO, JR., ENRIQUE M. COJUANGCO, MANUEL M. COJUANGCO, ESTELITO P. MENDOZA and GABRIEL L. VILLAREAL, petitioners, vs. THE HON. SANDIGANBAYAN, PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG), JULIETA C. BERTUBEN, IDE C. TILLAH, EMMANUEL E. CRUZ, SERGIO OSMEA III AND TIRSO D. ANTIPORDA, JR., respondents. When this Court was tasked to determine, via Garcia, Jr., vs. Sandiganbayan,[1] whether the Sandiganbayan had jurisdiction to take up the special civil actions of prohibition,mandamus, and quo warranto, it ruled: "It is settled that the authority to issue writs of certiorari, prohibition, and mandamus involves the exercise of original jurisdiction which must be expressly conferred by the Constitution or by law. x x x. "With respect to petitions for quo warranto and habeas corpus, original jurisdiction over them is expressly conferred to this Court by Section 5(1), Article VIII of the Constitution and to the Court of Appeals and the Regional Trial Courts by Section 9(1) and Section 21(1), respectively, of B.P. Blg. 129. "In the absence then of a specific statutory grant of jurisdiction to issue the said extraordinary writs, the Sandiganbayan, as a court with only special and limited jurisdiction, cannot exercise jurisdiction over the petition for prohibition, mandamus and quo warranto filed by petitioner."[2] By force of that decision, respondent Sandiganbayan (First Division), on 09 May 1995, acting motu proprio on the petition for quo warranto instituted by herein petitioners assailing the qualifications of private respondents for election to, and membership in, the Board of Directors of San Miguel Corporation ("SMC"), issued a resolution dismissing thequo warranto petition. The Sandiganbayan held: "Considering the subject matter of the instant petition, i.e., the qualification of the respondents to the seats in the Board of Directors of the San Miguel Corporation in favor of the petitioners herein for which reason this petition for quo warranto is filed, and considering the ruling of the Supreme Court in

Garcia vs. Sandiganbayan (G.R. No. 114135, October 7, 1994) which explicitly stated that for lack of explicit statutory grant, the Sandiganbayan had no authority to issue a writ of quo warranto, among other extraordinary writs, thus rendering this Court without jurisdiction over the subject matter hereof, the instant petition is dismissed."[3] This resolution is sought to be set aside in the instant petition for review on certiorari. We cull presently the facts that have led to the filing of the petition for quo warranto. During the annual meeting of the stockholders of SMC, held on 18 April 1995, the election of fifteen directors for the ensuing year was taken up. Petitioners, along with private respondents, were among the nominees to the board. Private respondents were nominated by Chairman Magtanggol Gunigundo of the Presidential Commission on Good Government (PCGG) following the registration in their respective names (at the instance of PCGG) of SMC sequestered shares of stock (the "corporate shares"), belonging to some 43 corporate stockholders led by Archipelago Finance and Leasing Corporation, in order to allow the nominees to qualify for the contested board seats. During the election, the bulk of the votes cast by petitioner Mendoza in favor of his group had come from substantially the same sequestered corporate shares of SMC which were used by the PCGG in voting, in turn, for private respondents. Following the canvass of the votes cast, private respondents landed on the top 15 slots and were accordingly declared to have been the elected members of the SMC Board of Directors for the year 1995-1996. None of the petitioners (Messrs. Estelito Mendoza, Manuel Cojuangco, Enrique Cojuangco, Gabriel Villareal and Eduardo Cojuangco, Jr., who, respectively, landed on the 16th to the 20th places) made it. Petitioner Mendoza protested the results of the election contending that the votes he had cast, particularly those in representation of the corporate shares, had not been duly appreciated and reflected in the results, and that had said votes been properly counted he, Manuel Cojuangco and Enrique Cojuangco would have themselves been duly elected. In reply, SMC Corporate Secretary Jose Feria stood by his verbal ruling during the canvassing of votes that only the PCGG, through Chairman Gunigundo, could validly vote the sequestered shares. Petitioners filed a petition for quo warranto before the Sandiganbayan questioning the election of PCGGs nominees to the SMC Board and prayed that "1. Respondents Julieta C. Bertuben, Ide C. Tillah, Emmanuel E. Cruz, Sergio Osmea III and Tirso D. Antiporda, Jr. should be ousted from the SMC Board for not owning the requisite number of qualifying shares of stock and in their stead, petitioners Eduardo M. Cojuangco, Jr., Enrique M. Cojuangco, Manuel M. Cojuangco, Estelito P. Mendoza and Gabriel L. Villareal be declared members of the Board of Directors of SMC; and "2. Respondents Julieta C. Bertuben, Ide C. Tillah and Emmanuel E. Cruz be ousted for not having more votes that petitioners Enrique M. Cojuangco, Manuel M. Cojuangco, Estelito P. Mendoza who should in their place be declared duly elected members of the Board of Directors of SMC."[4] The dismissal by the Sandiganbayan (First Division) of the petition, as well as its subsequent rejection of the motion for reconsideration, has led to the present recourse. Petitioners impute on the Sandiganbayan the alleged commission by it of the following errors: "A. THE SANDIGANBAYAN (FIRST DIVISION) ERRED IN APPLYING TO S.B. CIVIL CASE NO. 0166 THE NEW DOCTRINE ENUNCIATED BY THE FIRST DIVISION OF THIS HONORABLE COURT IN THE CASE OF `GARCIA, JR. VS. SANDIGANBAYAN, ET AL.', G.R. NO. 11435, PROMULGATED ON OCTOBER 7, 1994, 237 SCRA 552, HOLDING THAT THE SANDIGANBAYAN CANNOT EXERCISE JURISDICTION OVER A PETITION FOR

PROHIBITION, MANDAMUS AND QUO WARRANTO, DESPITE THE CLEAR NONAPPLICABILITY OF SAID DOCTRINE TO THE FACTS OF CIVIL CASE NO. 0166. xxx xxx xxx

"B. IN DISMISSING THE PETITION FOR QUO WARRANTO, THE SANDIGANBAYAN (FIRST DIVISION) IGNORED APPLICABLE DECISIONS OF THIS HONORABLE COURT RENDERED IN SEVERAL CASES HOLDING THAT THE SANDIGANBAYAN HAS EXCLUSIVE AND ORIGINAL JURISDICTION OVER SPECIAL CIVIL ACTIONS, INCLUDING PETITIONS FOR QUO WARRANTO, INVOLVING `INCIDENTS ARISING FROM, INCIDENTAL TO, OR RELATED TO' CASES MENTIONED IN EXECUTIVE ORDER NO. 14, DATED MAY 7, 1986, AND OVER SPECIAL CIVIL ACTIONS INVOLVING THE POWERS AND FUNCTIONS OF THE PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG) OR ALLEGED ILLGOTTEN OR SEQUESTERED WEALTH. xxx xxx xxx

"C. THE SANDIGANBAYAN (FIRST DIVISION) LIKEWISE IGNORED THE PROVISION OF SEC. 2 OF REPUBLIC ACT NO. 7975, WHICH AMENDED SEC. 4 OF PRESIDENTIAL DECREE NO. 1606 ON THE JURISDICTION OF THE SANDIGANBAYAN, GRANTING THE SANDIGANBAYAN `ORIGINAL JURISDICTION' OVER `CIVIL AND CRIMINAL CASES FILED PURSUANT TO AND IN CONNECTION WITH EXECUTIVE ORDER NOS. 1, 2, 14 AND 14A."[5] Respondents, calling attention to the Courts ruling in Garcia, infra, insist that the Sandiganbayan is precluded from exercising jurisdiction over petitions for quo warranto. We find merit in the appeal. The rule that the Sandiganbayan cannot exercise jurisdiction over petitions for quo warranto is not without exception, a situation which by now should be fairly evident from the Courts pronouncements in a number of cases. In PCGG vs. Pea, et al.,[6] the Court has observed: "x x x Under Section 2 of the President's Executive Order No. 14 issued on May 7, 1986, all cases of the Commission regarding 'the Funds, Moneys, Assets, and Properties Illegally Acquired or Misappropriated by Former President Ferdinand Marcos, Mrs. Imelda Romualdez Marcos, their Close Relatives, Subordinates, Business Associates, Dummies, Agents, or Nominees' whether civil or criminal, are lodged within the 'exclusive and original jurisdiction of the Sandiganbayan' and all incidents arising from, incidental to, or related to, such cases necessarily fall likewise under the Sandiganbayan's exclusive and original jurisdiction, subject to review on certiorari exclusively by the Supreme Court." (Italics supplied.) In the two subsequent consolidated cases of PCGG vs. Aquino, Jr., and Marcelo Fiberglass Corporation vs. PCGG,[7] a petition for certiorari and prohibition with prayer for the issuance of a restraining order and injunction was lodged with the Regional trial Court of Malabon, instead of the Sandiganbayan, against a writ of sequestration issued by the PCGG. Marcelo Fiberglass Corporation argued that Section 2 of Executive Order No. 14 gave to the Sandiganbayan jurisdiction over civil and criminal cases filed by the PCGG but not over special civil actions filed by private parties. In brushing aside the contention, the Court, reiterated the aforequoted portion of the Court's ruling in Pea, and concluded that any attempt to remove special civil actions,[8] similarly involving the powers and functions of the PCGG, from the Sandiganbayan's exclusive jurisdiction would be of no avail. Just barely two months thereafter, six cases[9] emanating from the Regional trial Courts, as well as from the Securities and Exchange Commission, were subsequently filed with the Court. In one[10] of

these cases, a supplemental petition was filed with the SEC by one of the stockholders of the SMC assailing the 1986 annual election of directors on the ground that PCGG voted the sequestered shares[11] without authority. The SMC Board of Directors moved to dismiss the petition contending that SEC had no jurisdiction over the action. The motion was denied by the SEC declaring, inter alia, "that what was being questioned were merely 'the acts of the Board of Directors of San Miguel Corporation and not the acts of the PCGG through its nominees,' a matter clearly within its statutorily prescribed competence."[12] When this order of the SEC and those of the Regional Trial Courts in the other related cases were eventually elevated to this Court, we stressed that the exclusive jurisdiction conferred on the Sandiganbayan would evidently extend not only to the principal causes of action, i.e., the recovery of alleged ill-gotten wealth, but also to 'all incidents arising from, incidental to, or related to, such cases,' such as the dispute over the sale of shares, the propriety of the issuance of ancillary writs or provisional remedies relative thereto, the sequestration thereof, which may not be made the subject of separate actions or proceedings in another forum." Thus, the Court ordered the dismissal of the cases "without prejudice to the assertion and ventilation before the Sandiganbayan by the parties of their respective claims by such appropriate modes as prescribed by law."[13] The instant petition, contrary to the observation in the dissenting opinion, is not just confined to the grievance of petitioners relative to the election of directors and the counting of the votes therein cast but directly challenges the power of the PCGG to vote, or to make use of, the sequestered shares of stock. The very kernel then of the controversy, relating, such as it does, to PCGGs authority over alleged ill-gotten wealth (the sequestered corporate shares), is within the precinct of Section 2[14] of Executive Order No. 14. The Pea edict - that "those who wish to question or challenge the Commission's acts or orders in such cases must seek recourse in the same court, the Sandiganbayan, which is vested with exclusive and original jurisdiction"[15]- perforce governs. Garcia, it might be recalled, did not involve any question about the alleged "ill-gotten wealth or its sequestered status; there, indeed, any reference to ill-gotten wealth was but a peripheral matter. The controversy was instead, and as so aptly described by the Sandiganbayan itself, a mere case of a Board of Directors ousting two of its members for reasons which it had deemed proper."[16] The graft court observed: "While it is not denied that the PCGG through its Chairman had asked petitioner Garcia to resign, Garcia had refused to do so; while PCGG Chairman Gunigundo had written petitioner Garcia on July 6, 1993 to tell him that his representation of the Government in the UCPB Board had been terminated, petitioner did not there and then cease to be a member of the UCPB Board of Directors. Instead, it was the Resolution (No. 66-93) of the Board of Directors at its meeting on July 22, 1993 which replaced petitioner Garcia with respondent Cesar A. Sevilla in the Board, albeit undoubtedly upon the request or, if petitioner pleases, upon instigation of the PCGG Chairman. "Respondent members of the Board of Directors Tirso D. Antiporda, et al., have well pointed out that while PCGG Chairman Gunigundo had also terminated the representation of Director Manuel Concordia, as Gunigundo indeed had in his letter of July 6, 1993, x x x the UCPB Board declined to follow that lead resulting thus in the termination only of petitioner Garcia and Wencelito T. Andanar.[17] In fine, while ordinarily the Sandiganbayan cannot exercise jurisdiction over petitions for quo warranto, it may, however, do so as an exception when it involves an incident arising from, or related to PCGG cases over alleged ill-gotten wealth within the context of Section 2 of Executive Order No. 14. Mention has been made on the passage of R.A. No. 7975,[18] on 06 May 1995, which grants to the Sandiganbayan the power to issue writs of certiorari, prohibition, andmandamus in aid of its appellate jurisdiction. While a petition for quo warranto is not among the special civil actions enumerated in the fourth sub-paragraph of Section 4(c) of R.A. No. 7975, the first sub-paragraph of the same Section 4(c) of the law, however, is no less specific, it provides:

"SEC. 4. Jurisdiction. - The Sandiganbayan shall exercise original jurisdiction in all cases involving: "xxx xxx xxx

"c. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14, and 14-A." The reiteration of the Sandiganbayan's jurisdiction over the above cases emphasizes a continuing legislative regard for the special graft court's original jurisdiction over cases that are inextricably linked to the various aforenumbered Executive Orders. WHEREFORE, the petition is GRANTED. The assailed 09 May 1995 Resolution of the respondent Sandiganbayan is SET ASIDE, and the Sandiganbayan is directed to give due course to the petition for quo warranto. No costs. SO ORDERED. G.R. No. 118644 July 7, 1995 DIRECTOR EPIMACO A. VELASCO, as Director of the National Bureau of Investigation (NBI), NATIONAL BUREAU OF INVESTIGATION SPECIAL OPERATIONS GROUP (SOG), SPECIAL INVESTIGATORS III FLOR L. RESURRECCION and ANTONIO M. ERUM, JR., and THE PEOPLE OF THE PHILIPPINES, petitioners, vs. COURT OF APPEALS, FELICITAS S. CUYAG, for and in behalf of LAWRENCE A. LARKINS, respondents. The high prerogative writ of habeas corpus, whose origin is lost in antiquity, 1 was devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint and as the best and only sufficient defense of personal freedom. 2 More specifically, its vital purposes are to obtain immediate relief from illegal confinement, to liberate those who may be imprisoned without sufficient cause, and to deliver them from unlawful custody. It is then essentially a writ of inquiry and is granted to test the right under which a person is detained. 3 Under our Constitution, the privilege of the writ of habeas corpus cannot be suspended except in cases of invasion or rebellion when the public safety requires it. 4 Pursuant to Section 1, Rule 102 of the Rules of Court, it extends, except as otherwise provided by law, to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto. It is not available, however, under the instances enumerated in Section 4 of the said Rule which reads: Sec. 4. When writ not allowed or discharge authorized. If it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful judgment. In this petition for review, the petitioners want us to set aside and reverse the decision of 1 February 1995 of the Court of Appeals in CA-G.R. SP No. 36273, 5 a petition for habeas corpus and certiorari with

a prayer for a temporary restraining order, ordering the herein petitioners to immediately release Lawrence A. Larkins from their custody and declaring moot the alternative relief of certiorari. The antecedent facts of the case as culled from the challenged decision and the pleadings of the parties are neither complicated nor disputed. On 16 September 1993, a warrant of arrest was issued by Judge Manuel Padolina of Branch 162 of the Regional Trial Court (RTC) of Pasig, Metro Manila, against accused Lawrence Larkins in Criminal Cases Nos. 101189-92 for violations of B.P. Blg. 22. On 20 November 1994, a certain Desiree Alinea executed and filed before the National Bureau of Investigation (NBI) a complaint-affidavit accusing Larkins of the crime of rape allegedly committed against her on 19 November 1994 at 2:00 a.m. in Victoria Valley Subdivision, Valley Golf, Antipolo, Rizal. 6 Acting on the basis of the complaint of Alinea, petitioners Special Investigators Flor L. Resurreccion and Antonio M. Erum, Jr. proceeded to the office of Larkins in Makati, Metro Manila, on 21 November 1994 and arrested the latter, who was thereupon positively identified by Alinea as her rapist. 7 Larkins was then detained at the Detention Cell of the NBI, Taft Avenue, Manila. On 22 November 1994, Larkins posted his bail of P4,000.00 in Criminal Cases Nos. 101189-92. Judge Padolina forthwith issued an order recalling and setting aside the warrant of arrest issued on 16 September 1993 and directing the Jail Warden of the NBI Detention Cell to release Larkins from confinement "unless otherwise detained for some other cause." Special Investigators Resurreccion and Erum refused to release Larkins because he was still detained for another cause, specifically for the crime of rape for which he would be held for inquest. On 23 November 1994, a complaint against Larkins for rape was executed by Alinea. 8 It contains a certification by Assistant Provincial Prosecutor Ma. Paz Reyes Yson that it is "filed pursuant to Section 7, Rule 112 of the 1985 Rules on Criminal Procedure, as amended, the accused not having opted to avail of his right to preliminary investigation and not having executed a waiver pursuant to Article 125 of the RPC. . . ." The complaint was filed with the RTC of Antipolo on 2 December 1994, docketed therein as Criminal Case No. 94-11794, and assigned to Branch 71 of the court, presided by Judge Felix S. Caballes. On 2 December 1994, Larkins, through his counsel Mauricio C. Ulep, filed an Urgent Motion for Bail 9 wherein he alleged, inter alia, that the evidence of guilt against him for rape is not strong, as he had no carnal knowledge of the complainant and the medical report indicates that her hymen was neither lacerated nor ruptured; that he is entitled as a matter of right to bail; and that he has no intention of going out of the country or hiding away from the law. On 6 December 1994, Larkins, through his new counsel, Atty. Theodore O. Te, filed in Criminal Case No. 94-11794 an Urgent Omnibus Motion for the Dismissal of the Complaint and for Immediate Release, 10 principally based on the alleged illegality of his warrantless arrest. This motion met vigorous opposition from the private complainant. 11 In the order of 5 January 1995, 12 the trial court denied the aforesaid motions, thus: After a careful appreciation of the arguments of the prosecution and the defense, the Court finds no legal or valid grounds to dismiss the complaint or release the accused, or to grant him bail. The filing of this case against the accused, which is [a] very serious offense,

justifies the grant of the motion of the prosecution for the issuance of a hold departure order. WHEREFORE, the motions of the accused are hereby denied for lack of merit, and as prayed for by the prosecution the Bureau of Immigration and Deportation is hereby directed to include the name of the accused, Lawrence A. Larkins, in its hold order departure list until further order from this Court. Unable to accept the ruling, Larkins' common-law wife, Felicitas S. Cuyag, filed before the Court of Appeals a petition for habeas corpus with certiorari. Impleaded as respondents were the herein petitioners and Judge Felix S. Caballes. Subsequently, the Court of Appeals issued a resolution 13 ordering the respondents therein to appear and produce Lawrence A. Larkins before the court on 31 January 1995 at 10:30 a.m. and to show cause why Larkins' liberty is being restrained. On the said date, Special Investigators Resurreccion and Erum appeared and produced Larkins at the hearing. Atty. Orlando Dizon of the NBI acted as their counsel. 14 The Office of the Solicitor General representing the People of the Philippines made no appearance. 15 Neither did Judge Caballes, for he had not received a copy of the resolution. On the other hand, the petitioner therein, Felicitas S. Cuyag, appeared with her counsel, who manifested that should the court order the release of Larkins the alternative prayer for certiorari would be deemed abandoned. 16 After hearing the arguments of the parties, the Court of Appeals rendered the challenged decision, holding that: From the arguments presented by the parties, we resolve to order the immediate release of Larkins from his present confinement on the ground that the complaint presented to the NBI by complainant Desiree Alinea on the basis of which Larkins was detained without a warrant of arrest for rape did not meet the legal requirements provided for in Rule 113 of the Rules of Court. Furthermore, on the day the detention of Larkins commenced, i.e., immediately after the NBI was served with the Order of the Pasig RTC for his release on bail in connection with the BP 22 cases, no other criminal complaint or information had been filed or pending in any court. It was only sometime between November 25, 1994 (when filing of the complaint was approved by the Rizal Provincial Prosecutor) and November 29, 1994 (the date appearing on the Urgent Motion for Bail filed by Larkins's former counsel, said Atty. Ulep) that the complaint for rape was filed with the Antipolo RTC. The petitioners insist that the respondent court erred in granting the petition for habeas corpus because Larkins had already been charged with the crime of rape and the trial court had denied his application for bail. They further claim that the warrantless arrest in this case is valid for it was made under Section 5(b), Rule 113 of the Rules of Court. On the other hand, the private respondent contends that habeas corpus is rendered unavailing not by the mere filing of an information, but by the issuance of a warrant of arrest or warrant of commitment, which are the only two processes recognized by law to justify deprivation of liberty, and the order of Judge Caballes of 5 January 1995 denying the petition for bail does not qualify as such. She asserts that the petitioners have miscomprehendedParedes vs. Sandiganbayan 17 because that case did not rule that the writ is no longer available after an information (or criminal complaint for rape as in this case) is filed against the person detained; what it stated is that the writ of habeas corpus will not issue when the person alleged to be restrained of his liberty is in the custody of an officer under a process issued by the

court which has jurisdiction to do so. She submits that the controlling doctrine is that enunciated in Ilagan vs. Ponce Enrile, 18 adverted to in Sanchez vs. Demetriou, 19 that "[t]he filing of charges, and the issuance of the corresponding warrant of arrest, against a person invalidly detained will cure the defect of that detention or at least deny him the right to be released because of such defect." We find for the petitioners. But, before we take up the substantive merits of this petition, we shall first delve into the propriety of the petition for habeas corpus and certiorari filed by private respondent Cuyag with the Court of Appeals. Concededly, the private respondent has the personality to institute on behalf of her common-law spouse, Lawrence Larkins, the habeas corpus aspect of the petition, as she falls within the purview of the term "some person" under Section 3, Rule 102 of the Rules of Court, which means any person who has a legally justified interest in the freedom of the person whose liberty is restrained or who shows some authorization to make the application. 20 She is not, however, the real party in interest in the certiorari aspect of the petition. Only Larkins could institute a petition for certiorari to set aside the order denying his motions for bail and for the dismissal of the complaint against him. It does not, however, follow that if certiorari is available to Larkins, an application for a writ of habeas corpus will absolutely be barred. While ordinarily, the writ of habeas corpus will not be granted when there is an adequate remedy by writ of error or appeal or by writ of certiorari, it may, nevertheless, be available in exceptional cases, for the writ should not be considered subservient to procedural limitations which glorify form over substance. 21 It must be kept in mind that although the question most often considered in both habeas corpus and certiorariproceedings is whether an inferior court has exceeded its jurisdiction, the former involves a collateral attack on the judgment and "reaches the body but not the record," while the latter assails directly the judgment and "reaches the record but not the body." 22 And now on the merits of the petition. The Court of Appeals granted the writ of habeas corpus because it found that the warrantless arrest of Larkins for the crime of rape "did not meet the legal requirements provided for in Rule 113 of the Rules of Court." It could have in mind Section 5 thereof on lawful warrantless arrest. Even if the arrest of a person is illegal, supervening events may bar his release or discharge from custody. What is to be inquired into is the legality of his detention as of, at the earliest, the filing of the application for a writ ofhabeas corpus, for even if the detention is at its inception illegal, it may, by reason of some supervening events, such as the instances mentioned in Section 4 of Rule 102, be no longer illegal at the time of the filing of the application. Among such supervening events is the issuance of a judicial process preventing the discharge of the detained person. Thus, in Sayo vs. Chief of Police of Manila, 23 this Court held: [W]e hold that petitioners are being illegally restrained of their liberty, and their release is hereby ordered unless they are now detained by virtue of a process issued by a competent court of justice. (emphasis supplied) Another is the filing of a complaint or information for the offense for which the accused is detained, as in the instant case. By then, the restraint of liberty is already by virtue of the complaint or information and, therefore, the writ of habeas corpus is no longer available. Section 4 of Rule 102 reads in part as follows: "Nor shall anything in this rule be held to authorize the discharge of a person charged with . . . an offense in the Philippines." Thus, in Matsura vs. Director of Prisons, 24 where petitioners Macario Herce and Celso Almadovar claimed to have been illegally detained for more than one year without any complaint or information filed

against them, this Court denied the petition for a writ of habeas corpus, for at the time they filed the petition they had already been charged with the crime of treason and confined by reason thereof. Harvey vs. Defensor-Santiago 25 reiterates Matsura. In Cruz vs. Montoya, 26 this Court dismissed the petition for habeas corpus for having become academic because the information for estafa against the party whose liberty was allegedly illegally restrained had already been filed and a warrant for his arrest had been issued, and whatever illegality might have originally infected his detention had been cured. In Umil vs. Ramos 27 this Court, applying the last sentence of Section 4 of Rule 102, held that the writ of habeas corpus should not be allowed after the party sought to be released had been charged before any court. Thus: It is to be noted that, in all the petitions here considered, criminal charges have been filed in the proper courts against the petitioners. The rule is, that if a person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge, and that the court or judge had jurisdiction to issue the process or make the order, or if such person is charged before any court, the writ of habeas corpus will not be allowed. Section 4, Rule 102, Rules of Court, as amended is quite explicit in providing that: Sec. 4. . . . Nor shall anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines or of a person suffering from imprisonment under lawful judgment. 28 (emphasis supplied) It may also be said that by filing his motion for bail, Larkins admitted that he was under the custody of the court and voluntarily submitted his person to its jurisdiction. In De Asis vs. Romero, 29 this Court stated: De Asis could have, right after his arrest, objected to the regularity of the issuance of the warrant of arrest in question. Instead he not only filed a petition for bail with the lower court, thereby accepting the court's jurisdiction over his person, but he also pleaded, on arraignment, to the information filed against him. (emphasis supplied) The filing of a petition or motion for bail in cases where no bail is recommended has the same legal import and effect as the posting of bail in cases where bail is recommended. It is settled that the giving or posting of bail by the accused is tantamount to submission of his person to the jurisdiction of the court. In the case of Carrington vs.Peterson, 30 this Court declared: When a defendant in a criminal case is brought before a competent court by virtue of a warrant of arrest or otherwise, in order to avoid the submission of his body to the jurisdiction of the court he must raise the question of the court's jurisdiction over his person at the very earliest opportunity. If he gives bail, demurs to the complaint or files any dilatory plea or pleads to the merits, he thereby gives the court jurisdiction over his person. (State ex rel. John Brown vs. Fitzgerald, 51 Minn., 534) In United States vs. Grant, 31 this Court held: Conceding again that the warrant issued in this case was void for the reason that no probable cause was found by the court before issuing it, the defendant waived all his rights to object to the same by appearing and giving bond. While it may be true that on 6 December 1994, or four days after the filing of the Urgent Motion for Bail, Larkins, thru a new counsel, filed an Urgent Omnibus Motion for Dismissal of the Complaint and for

Immediate Release based on the alleged illegality of his warrantless arrest, the said motion was a mere afterthought which came too late in the day. By then, the trial court had firmly acquired jurisdiction over his person. Moreover, the trial court's order of 5 January 1995 denying the urgent motion for bail was an unequivocal assertion of its authority to keep in custody the person of Larkins. This order comes under the purview of the wordorder under the first sentence of Section 4 of Rule 102 reading: "If it appears that the person alleged to be restrained of his liberty is in the custody of an officer . . . by virtue of [an] order of a court of record, and that the court or judge had jurisdiction to . . . make the order, the writ shall not be allowed. . . ." The foregoing renders untenable the private respondent's claim that it is the rule in Ilagan vs. Enrile 32 which must govern, that the writ may not be allowed only where the person alleged to be restrained of his liberty is in the custody of an officer under process issued by the court or judge, and that there are only two recognizedprocesses which justify deprivation of liberty, viz., (1) commitment order and (2) warrant of arrest. The contention is not only a deliberate misreading of Section 4 of Rule 102 limiting its application to the first part of the first sentence and disregarding the rest, but is also an undue and unwarranted restriction of the term process. A commitment order and a warrant of arrest are but species of judicial process. In Malaloan vs. Court of Appeals, 33 this Court stated: Invariably a judicial process is defined as a writ, warrant, subpoena, or other formal writing issued by authority of law; also, the means of accomplishing an end, including judicial proceedings, or all writs, warrants, summonses and orders of courts of justice or judicial officers. It is likewise held to include a writ, summons or order issued in a judicial proceeding to acquire jurisdiction of a person or his property, to expedite the cause or enforce the judgment, or a writ, warrant, mandate or other process issuing from a court of justice. In Macondray & Co., Inc. vs. Bernabe, 34 this Court quoted Corpus Juris' definition of the term "process," to wit: As a legal term, process is a generic word of very comprehensive signification and many meanings. In its broadest sense, it is equivalent to, or synonymous with "proceedings" or procedure and embraces all the steps and proceedings in a cause from its commencement to its conclusion. Sometimes the term is also broadly defined as the means whereby a court compels a compliance with its demands. (50 C.J. 441) We thus rule that the order of 5 January 1995 of the trial court also qualifies as a process within the meaning of Section 4 of Rule 102. Hence, even granting that Larkins was illegally arrested, still the petition for a writ of habeas corpus will not prosper because his detention has become legal by virtue of the filing before the trial court of the complaint against him and by the issuance of the 5 January 1995 order. Even as we thus decide in favor of the petitioners, we are, nevertheless, disturbed by certain incidents relative to the warrantless arrest of Larkins. Firstly, assuming that it was lawful, the facts before us disclose that the arresting officers failed to strictly comply with (1) the last paragraph of Section 5, Rule 113 of the Rules of Court requiring that the person lawfully arrested without a warrant shall forthwith be delivered to the nearest police station or jail and shall be proceeded against in accordance with Section 7, Rule 112; and (2) Article 125 of the Revised Penal Code, as amended, providing that he be delivered to the proper judicial authorities within thirty-six hours, the crime with which Larkins was charged being

punishable by an afflictive penalty. Although the arrest was made in Makati where there is a police station and a municipal (now city) jail, Larkins was brought to the NBI Detention Cell at Taft Avenue, Manila, and though the complaint of the offended party was executed on 23 November 1994, it was not until 2 December 1994 that the said complaint was actually filed in court. Unless satisfactorily explained, the non-compliance by the arresting officers with the said provisions merits nothing but disapproval from the Court. In the performance of their duty and in their commendable pursuit to stamp out crimes and bring criminals to the bar of justice, law enforcement authorities should make no shortcuts, but must comply with all procedures to safeguard the constitutional and statutory rights of accused persons. The rule of law must always be upheld. What this Court said in Beltran vs. Garcia 35 needs to be repeated: It certainly does not speak well of officialdom, whether civilian or military, if a person deprived of his liberty had to go to court before his rights are respected. The good name of the administration is jeopardized, without any fault on its part, by such inefficiency or inattention to duty. Every precaution should be taken against its repetition. Otherwise, the parties responsible for this state of affairs would justly lay themselves open to the accusation that the greatest danger to constitutional rights comes from public officials, men of zeal, concededly well-meaning, but without sufficient understanding of the implication of the rule of law. We also note that the trial court did not conduct a hearing of the urgent motion for bail, as required under Section 5, Rule 114 of the Rules of Court. The grant or denial of bail must be based upon the court's determination as to whether or not the evidence of guilt is strong. This discretion may only be exercised after evidence is submitted at the hearing conducted for that purpose. 36 The court's order granting or refusing bail must contain a summary of the evidence for the prosecution followed by its conclusion whether or not the evidence of guilt is strong; otherwise, the order would be defective and voidable. 37 In fact, even if the prosecutor refuses to adduce evidence in opposition to the application to grant and fix bail, the court may ask the prosecution such questions as would ascertain the strength of the State's evidence or judge the adequacy of the amount of bail. 38 It was thus incumbent upon the trial court to receive the evidence for the prosecution on the urgent motion for bail. For this procedural shortcoming, Larkins should also be partly blamed. He did not press for a hearing after the scheduled hearing on 5 December 1994 was cancelled because, as he claimed, the presiding Judge was out of the country. 39 WHEREFORE, the instant petition is GRANTED, and the decision of the Court of Appeals of 1 February 1995 in CA-G.R. SP No. 36273 is hereby SET ASIDE and ANNULLED. No pronouncement as to costs. SO ORDERED. G.R. No. L-26816 February 28, 1967 PABLO DE JESUS, ENGRACIA DE JESUS and MANUELA DE JESUS, petitioners, vs. HON. GREGORIO N. GARCIA, Judge of the City Court of Manila, Branch I THE SHELL COMPANY OF THE PHILIPPINES, LTD., MAXIMA DE Jesus and SALVADOR BARRIOS,respondents. Before us upon an original action of certiorari and prohibition, are two jurisdictional issues: first, jurisdiction over the subject matter; and second, the power of the City Court of Manila to issue a writ of preliminary or final injunction upon the factual averments hereinafter to be recited. The problem cropped up because petitioners' motion to dismiss the complaint and to dissolve the writ of preliminary

injunction upon the above grounds, in that case filed by principal individual respondents against them in the city court,1 was denied, and their motion to reconsider rejected. The pivotal disputed allegations of the verified complaint below are these: Ten persons,2among whom are petitioners and respondent, Maxima de Jesus, are co-owners of six (6) parcels of land running along Espaa P. Campa and Adelina Streets in Sampaloc, Manila. Administratrix thereof and co-owners attorney-in-fact is Maxima de Jesus. Her stipulated compensation is 10% of the rentals. The monthly receipts signed by each co-owner, for his/her rental share, is in a form reproduced in the complaint as follows: RECEIVED from Mrs. Maxima de Jesus Barrios the sum of .................. as my share, in the rental collected for this month, on the properties of which I am a co-owner. Ten per cent (10%) of said rentals had been previously deducted as agreed upon by me, for her administration fee together with her expenses concerning a collector and an Attorney that she may employ to INCREASE rate, prevent arrears, and eject stubborn tenant.1wph1.t Lessee of the property is Shell Company of the Philippines, Ltd. The original lease contract was dated August 23 and 29, 1953. This lease was renewed by instrument executed on January 10, 1966, where under, through the efforts of Maxima de Jesus, the monthly rentals were increased from P850.00 to P3,500.00 during the first ten (10) years and to P4,000.00 for the subsequent five (5) years. Shell pays the rentals by issuing a check for P3,500.00 in the name of Maxima de Jesus who, in turn, distributes the shares of her co-owners. Petitioners' monthly shares on the basis of P3,500.00 monthly rentals are: Manuela de Jesus Pablo de Jesus 9/54 of P3,500.00 9/54 of P3,500.00 P 583.33 P 583.33 P 684.14 P1,850.80 Petitioners (defendants below), in October, 1966 so the complaint further avers sought to unjustly deprive Maxima de Jesus of her 10% compensation. And, to fraudulently escape such obligation, they surreptitiously instructed Shell not to pay their share in the rentals through said Maxima de Jesus but directly to them. As against Shell, the complaint states: ... Pero ahora la compania demandada esta vacilando si va a cambiar esa FORMA DE PAGO, para seguir dicho aviso de los 3 demandados individuales, de que ella pague directamente a ellos sus "shares" de P1,850.80 mensuales dejando a la demandante fraudulentamente privada y despojada de su 10% de compensacion que asciende a P185.08 mensuales. The complaint winds up with the prayer: POR TANTO, pedimos respetuosamente al Hon. Juzgado se sirva expedir una inmediata orden de interdicto prohibitorio preliminar a la pagadora compaia demandada, para que se abstenga de cambiar la presente FORMA DE PAGO, ...; y, despues de los tramites judiciales correspondientes, que el Hon. Juzgado se sirva dictar sentencia declarando definitivo el mismo interdicto prohibitorio, y condenando a los 3 demandados individuales Manuela de Jesus, Engracia de Jesus y Pablo de Jesus a pagar dicho 10% de compensacion, deduciendolo de sus P1,850.80 de "shares" o participaciones respectivas en la renta mensual, de acuerdo con la presents forma de pago. x x x x3

Engracia de Jesus 10/54 of P3,500.00

Upon the foregoing complaint filed on October 3, 1966, the respondent judge, on a P500.00-bond, issued ex-parte, on October 4, 1966, a writ of preliminary injunction, which reads: It is hereby ordered by the undersigned Judge of the Court of Manila City that, until further orders, you, the said The Shell Co. of the Philippines, Ltd. and all your attorneys, representatives, agents, and any other person assisting you, refrain from modifying the present "FORMA DE PAGO"; The Shell Co. of the Philippines, shall pay the monthly rentals with check to be issued in the name of Maxima de Jesus alone, who shall cash and distribute the amount of same, among the ten coowners, previous deduction of ten per cent (10%) thereof. On the same date, October 4, 1966, in obedience to the writ of preliminary injunction, Shell delivered to Maxima de Jesus the sum of P3,500.00, covering the October, 1966 rental. The jurisdictional question having been brought direct to this Court, we issued, on application, a ceaseand-desist order bearing date of November 18, 1966. 1. As starting point, we have the rule-long in standing and frequent in application that jurisdiction over the subject matter is conferred only by the Constitution or law. It cannot be fixed by the will of the parties; it cannot be acquired through, or waived, enlarged or diminished by, any act or omission of the parties. Neither is it conferred by acquiescence of the court.4 Constitutionally viewed, apportionment of jurisdiction is vested in Congress.5 Congress may not delegate that power.6 We may not even look to the Rules of Court in search of jurisdiction jurisdictional boundaries. For indeed, the constitutional authority of the Supreme Court on this point is circumscribed in the zone properly denominated as the promulgation of "rules concerning pleading, practice, and procedure in all courts and the admission to the practice of law";7 and, consequently to determine the "means, ways or manner in which said jurisdiction, as fixed by the Constitution and acts of Congress, shall be exercised".8 Rules of Court must yield to substantive laws9 of which jurisdiction is a segment. A mistake in statutory jurisdiction may not be corrected by executive fiat, "but by legislation".10 Well may we profit from the wise pronouncement in Manila Railroad Co. vs. Attorney-General, supra, at pages 529-530, thus: "Certain statutes confer jurisdiction, power, or authority. Others provide for the procedure by which that power or authority is projected into judgment. The one class deals with the powers of the court in the real and substantive sense; the other with the procedure by which such powers are put into action. The one is the thing itself ; the other is the vehicle by which the thing is transferred from the court to the parties. The whole purpose and object of procedure is to make the powers of the court fully and completely available for justice. ... The purpose of such a procedure is not to restrict the jurisdiction of the court over the subject matter, but to give it effective facility in righteous action. ..." 2. And now we come to the jurisdictional area allocated to inferior courts. A rule, the validity of which is recognized, is that jurisdiction of an inferior court will not be presumed; "it must appear clearly from statute or it will not be held to exist."11 Such jurisdiction cannot be broadened upon "doubtful inferences" drawn from statutes. Absent a statutory grant, neither convenience nor assumed justice or propriety of the exercise thereof in a particular class of cases "can justify the assumption of jurisdiction" by said courts.12 3. Jurisprudence teaches that the averments of the complaint, taken as a whole, are what determine the nature of the action, and therefore, the court's jurisdiction.13 But just exactly what does Maxima de Jesus desire in her complaint below? In plain language, she asks of the court to compel two sets of defendants to toe the line: Shell to continue with the previous manner of payment (forma de pago) of rentals by means of a check drawn in her favor

alone; and the dissenting co-owners to pay her the 10% of the rentals as compensation to which she claims she is entitled as administratrix of the property per agreement. By this she hopes to pay herself, as against her defendant co-owners, the 10% of the latter's share in the monthly rentals (P1,850.80 from October 1966, to December 31, 1975; and P2,074.07 from thence to December 31, 1980). A careful and considerate examination of the complaint below as a whole brings to the fore the fact that plaintiff Maxima de Jesus asks that these defendants comply faithfully with their respective commitments. Implicit, too, in the complaint is the demand that her said co-owners recognize her as administratrix. It is in the context just recited that plaintiff's action below comes within the concept of specific performance of contract. And in this posture, we express the view that jurisdiction resides in the court of first instance. For, specific performance the subject of the litigation "is not capable of pecuniary estimation".14 A case with factual environment similar to the present is Manufacturer's Distributors, Inc. vs. Yu Siu Liong, L-21285, April 29, 1966. There, plaintiff sued defendant in the City Court of Manila to accept delivery of 74,500 pieces of plastifilm bags, balance of 100,000 pieces ordered by defendant, which the latter for no justifiable reason refused to accept. The prayer of the complaint is that defendant be ordered to pay plaintiff P3,376.00, total value of the 100,000 pieces of plastifilm bags. Defendant moved to dismiss. Ground: The subject matter of the litigation is "specific performance" and, therefore, within the exclusive jurisdiction of the court of first instance. The City Court upheld defendant, dismissed the complaint. And the Court of First Instance affirmed. Before this Coat, plaintiff contended that "the subject of the litigation was the 100,000 pieces of plastifilm bags contracted for by defendant at a total price of P3,376.00, and, therefore, it was susceptible of pecuniary estimation". This Court, in an opinion by Mr. Justice Jose B. L. Reyes, ruled that the City Court of Manila had no jurisdiction, and declared: That plaintiff's complaint also sought the payment by the defendant of P3,376.00 plus interest and attorney's fees, does not give a pecuniary estimation to the litigation, for the payment of such amounts can only be ordered as a consequence of the specific performance primarily sought. In other words, such payment would be but an incident or consequence of defendant's liability for specific performance. If no such liability is judicially declared, the payment can not be awarded. Hence, the amounts sought do not represent the value of the subject of litigation. This Court there lifted from Mebane Cotton Breeding St'n vs. Sides, 257 SW 302; 21 C.J.S., 59, note, the following, which is indeed illuminating: The Court has no jurisdiction of a suit for specific performance of a contract, although the damages alleged for its breach, if permitted, are within the amount of which that court has jurisdiction. It will avail respondents nothing when they say that what they seek is to prevent Maxima de Jesus from being defrauded of her 10% compensation to only P185.08, covering the October, 1966 rental; and that should defendants below insist in defrauding her of her share corresponding to any other month, in respondents' language, "entonces se podra repetir igual demanda por ese mes".15 Reasons there are which will stop us from giving our imprimatur to this advocacy. Courts will be swamped with her complaints. Multiplicity of suits is obnoxious to the administration of justice. Besides, the breach of contract charged against defendants below is total and indivisible. Monthly rentals will have to run through a number of years. There is an unqualified refusal to perform the contract. Such refusal goes to the entire contract. It is treated as a complete breach. Therefore, but one action specific performance may be presented. For that action may not be split; successive actions may not be maintained.16 Especially is this principle true in the case before us. For, nowhere in the complaint filed on October 3, 1966, is there an averment that at the time jurisdiction was sought in the City Court, the October, 1966 rental was already due and

payable. As a matter of fact, in Annex 2 of respondents' answer before this Court, which is Shell's answer to the complaint below, the following averment in paragraph 13 appears: "SHELL has to pay the monthly rentals of P3,500 within the first ten (10) days of each contract month." Nothing in the statute books would confer jurisdiction on city courts over actions where specific performance of contract is primarily sought. Result: The city court has no jurisdiction over the subject matter.17 4. Nor does the law grant the city courts power to take cognizance of a case for final injunction. On the contrary, such authority is expressly granted by statute to courts of first instance in the exercise of their original jurisdiction.18 And the city court is without jurisdiction to hear and determine the case for final injunction against Shell. . 5. But let us assume that what plaintiff below claims, as against her co-owners, is but a judgment for the small sum of P185.08, her compensation for the month of October, 1966. Nonetheless, the city court remains without jurisdiction. This is because the sum of money action may not be divorced from the injunction suit. Both of them are the subject of only one complaint. For, really, without a mandatory injunction to Shell to issue the checks in plaintiff's favor, the certainty of collecting her alleged compensation becomes problematical. The action then is indivisible. And, the city court's jurisdiction must yield to the jurisdiction of the higher court of first instance. Expediency and convenience so demand.19 6. Where much space was devoted by counsel for the parties herein is on the question of the power of the city court to issue the disputed writ of preliminary injunction earlier transcribed. Historically speaking, the 1901 original organic act of courts in the Philippines (Act 136 of the Philippine Commission) was silent on the power of the city (Justice of the peace) court to issue preliminary injunction. Neither did the old 1901 Code of Civil Procedure (Act 190) grant this power to said court. When a later statute, Act 2041 of the Philippine Legislature (1911), did empower said court to issue preliminary injunction, its exercise was limited to cases involving forcible entry. And, subsequent legislation's also carry this provision, viz: Act 2131, effective February 1, 1912; Act 3764, effective November 26, 1930; Act 3881, effective November 14, 1931; and the present Judiciary Act of 1948, as amended. To be sure temporary injunctions could also be issued in cases other than forcible entry; but then only municipal courts in provincial capitals are privileged to grant the same, and solely in the absence of the district judge.20 In Piit vs. de Lara, 58 Phil. 765, 766-767,21 this Court was asked to rule on the question of whether a justice of the peace may issue a writ of preliminary injunction in an illegal detainer suit. The answer was "No". Because the law limits the issuance of such writ only to forcible entry cases. We then ruled out the preliminary injunction in the illegal detainer case as in excess of his jurisdiction. The strong point on which respondents herein root their argument is Section 2 of Rule 58, which reads: SEC. 2. Who may grant preliminary injunction. A preliminary injunction may be granted by the judge of any court in which the action is pending, or by a Justice of the Court of Appeals or of the Supreme Court. It may also be granted by the judge of a Court of First Instance in any action pending in an inferior court within his district. They place the accent on the phrase "any court in which the action is pending." Argue respondents: Since the case is pending in the city court, it has jurisdiction to issue preliminary injunction. This ratiocination suffers from infirmities. First, we have ruled that the city court has no jurisdiction over the

subject matter; in consequence, it is powerless to grant an ancillary remedy therein. Second, the first sentence of Section 2 should be read in context. The last sentence of the quoted statute, namely, that injunction "may also be granted by the judge of a Court of First Instance in any action pending in an inferior court within his district", emphasizes the point that the city court, except in the cases where it is specifically authorized by statute, cannot grant preliminary injunction. Third, as adverted to elsewhere in this opinion, absent an explicit and precise grant of jurisdiction in the city court, no amount of expensive construction would give such court that jurisdiction. At any rate, the party plaintiff is not without speedy remedy. He may seek injunctive assistance from the court of first instance. Upon the view we take of this case, we hereby grant the petition for certiorari and prohibition; the preliminary injunction we issued herein is declared final; and the respondent court is directed to dismiss Civil Case No. 153460, entitled "Maxima de Jesus, asistida de su marido Salvador Barrios, Demandantes versus Manuela de Jesus, Engracia de Jesus, Pablo de Jesus, y The Shell Company of the Philippines, Ltd., Demandados". Costs against respondents other than the respondent judge. So ordered. G.R. No. L-28870 September 6, 1985 AMADO D. TOLENTINO, petitioner-appellant, vs. SOCIAL SECURITY COMMISSION, GILBERTO TEODORO and ANGEL PENANO respondentsappellees. G.R. No. L-39149. September 6, 1985 SOCIAL SECURITY SYSTEM and GILBERTO TEODORO, petitioners, vs. THE HONORABLE COURT OF INDUSTRIAL RELATIONS, THE SSS EMPLOYEES' LABOR UNIONNLU, and AMADO TOLENTINO, respondents. The present petitions for review by certiorari involve two different decisions of two different tribunals. In G.R. No. L-28870, appellant Amado Tolentino seeks the annulment and setting aside of the order of the Court of First Instance (CFI) of Rizal (Branch IX, Quezon City) dated June 5, 1967 in Civil Case No. Q- 10566 dismissing said appellant's petition for mandamus with preliminary mandatory injunction, thus... this Court deems it unnecessary to consider the other grounds raised, and is constrained to dismiss the herein petition for lack of jurisdiction to issue either preliminarily or permanently the writ sought in this petition, considering that the person or body against whom the writ is sought to be applied is of the same rank as this Court (pp. 97-98, Record on Appeal, p. 13, rec. of G.R. No. L-28870). This appeal also seeks the annulment of the same Court's order dated December 1, 1967, denying herein petitioner-appellant's motion for reconsideration. In G.R. No. L-39149, petitioners Gilberto Teodoro and the Social Security System seek the annulment of the decision of the Court of Industrial Relations (CIR) in Case No. 5042-ULP, entitled "SSS Employees' Labor Union-NLU and Amado Tolentino vs. Social Security System and Gilberto Teodoro", the dispositive portion of which readsWHEREFORE, respondents are hereby found to have committed unfair labor practice as charged and are ordered to cease and desist therefrom, reinstate complainant Amado Tolentino to his former position, with back wages from the date of dismissal up to actual reinstatement, and without loss of seniority and other privileges.

SO ORDERED (p. 109, rec. of G.R. No. L-39149). G.R. NO. L-28870 Petitioner was employed as an Editorial Assistant in the SSS before April 14, 1961 with a salary of P2,400.00 per annum. His appointment as such was duly approved by the Civil Service Commission. On April 14, 1961, petitioner was given a promotion in salary from P2,400.00 per annum to P2,580.00 per annum effective March 1, 1961. This promotion in salary was likewise duly approved by the Civil Service Commission. The copy of petitioner's aforesaid promotional appointment is hereto attached and made an integral part hereof as Annex 'A'. On March 16, 1962, petitioner's designation was changed from Editorial Assistant' to 'Credit Analyst.' This appointment was also duly approved by the Civil Service Commission. The copy of this appointment is hereto attached and made an integral part hereof as Annex 'B'. On June 15, 1964, petitioner was given an appointment reinstating him to his former position as 'Credit Analyst.' This reappointment was extended to petitioner following his resignation from the SSS to run for a municipal position in his municipality in the 1961 elections. The copy of this appointment is hereto attached and made an integral part hereof as Annex 'C'. On June 16, 1964, petitioner took his Oath of Office. The copy of the Oath of Office appearing in C.S. Form No. 32 of the Philippine Civil Service is hereto attached and made an integral part hereof as Annex 'D'. On May 11, 1965, petitioner's designation was changed from 'Credit Analyst' to 'Technical Assistant' effective January 1, 1965, with an increase in salary from P2,580.00 per annum to P4,200 per annum. The copy of this appointment is hereto attached and made an integral part hereof as Annex 'E'. It was the position of 'Technical Assistant' (Executive Assistant that petitioner was holding when respondent Commission passed Resolution No. 1003 on September 15, 1966 affirming the decision of respondent Administrator Gilberto Teodoro 'finding petitioner guilty of dishonesty, as charged, and imposing upon him the penalty of dismissal from the service, effective on the first day of his preventive suspension (July 6, 1966) with prejudice to reinstatement.' Under dates of May 23 and 24, 1966, respectively, respondent Administrator filed charges against petitioner for dishonesty and electioneering. In two (2) separate letters, dated July 2, 1966, to respondent Administrator, petitioner answered and denied the charges against him. On July 6, 1966, petitioner received a copy of a memorandum of the same date signed by Mr. Reynaldo Gregorio as Acting Administrator of the SSS informing him that his answer was not satisfactory and therefore, the charges against him would be formally investigated by a committee composed of Attys. Ernesto D. Duran (as Chairman), Fabiana J. Patag and Florencio Ongkingko theretofore constituted by virtue of Personnel Order 52-G. The same memorandum placed petitioner on preventive suspension effective .July, 1966.

On July 12, 1966, said committee began investigation of the charges against petitioner officially terminating the same on September 7, 1966. On September 30, 1966, petitioner received a letter dated September 20, 1966 from respondent Administrator informing him, among others, of his dismissal from the service by virtue of Resolution No. 1003 of respondent Commission (Brief for Petitioner-Appellant, pp. 3-5, p. 19, rec. of L-28870). On November 10, 1966, appellant Amado Tolentino filed with the Court of First Instance of Rizal (Quezon City, Branch IX) a petition for mandamus with preliminary mandatory injunction questioning the validity of Resolution No. 1003. His theory was "that Resolution No. 1003 of respondent Commission and the decision of respondent Administrator which it affirmed, is null and void and of no effect whatever, for lack of jurisdiction because the power, nay, jurisdiction to decide administrative cases against civil service employees like petitioner is vested by the Civil Service Act of 1959 and the Civil Service Rules exclusively in the Civil Service Commissioner" (pp, 5-6, Record on Appeal, p. 13, rec. of G. R. no. L-28870). Under date of December 8, 1966, respondents filed their answer raising, among others, the affirmative defense of lack of jurisdiction of the lower court over respondent Social Security Commission (Commission, for short), the latter being of the same rank as the former. On June 5, 1967, after the parties had submitted memoranda to support their respective contentions on the question raised by the pleadings, among others-whether respondents Social Security Administrator (Administrator, for short) and Social Security Commission have the jurisdiction and authority to decide cases of administrative discipline against employees of the Social Security System (SSS, for short)- the lower court rendered an order dismissing petitioner's petition for lack of jurisdiction over respondent Commission because the latter ranks with the Court of First Instance in the exercise of the quasi-judicial powers granted to it by the Social Security Act of 1954, as amended, following the decision of this Honorable Tribunal in Poblete Construction Co., et al. vs. Social Security Commission, et al. (G.R. No. L-17605, promulgated January 22, 1964). On August 12, 1967-within the reglementary period to appeal-petitioner filed a motion for reconsideration of the abovementioned order of the lower court, which the latter denied in an order dated December 1, 1967" (Brief for Petitioner-Appellant, pp. 23, p. 19, rec. of L28870). Not satisfied with the last two mentioned orders, petitioner-appellant Tolentino elevated the case to this Court. G.R. No. L-39149 On May 7, 1968, the Prosecution Division of the CIR filed with said court a complaint . . . . on motion of the SSS Employees Labor Union- NLU and Amado Tolentino charging the SSS and Gilberto Teodoro with commission of unfair labor practices. This case, docketed as Case No. 5042-ULP, was entitled The Employees' Labor Union-NLU and Amado Tolentino, petitioners, versus Social Security System and Gilberto Teodoro, respondents. On May 16, 1968, in answer to the complaint filed before the CIR, the herein petitioner Social Security System (hereinafter referred to as SSS, for short) denied the charges of unfair labor practices and asserted that Amado Tolentino was dismissed from the service

after being charged and found guilty of Dishonesty on Two counts which was preceded by a formal investigation. On March 5, 1974, the CIR rendered a decision declaring the SSS and Gilberto Teodoro guilty of unfair labor practice and ordering the reinstatement of herein respondent-appellee Tolentino with back wages. On August 13, 1974, the CIR en banc denied the motion for reconsideration dated March 12, 1974 filed by the SSS, hence, this petition for review on certiorari (Brief for Petitioners, pp. 2-3). On January 13, 1975, this Court issued a resolution in G.R. No. L-39149 consolidating the two appeal cases as both involve the same parties and substantially the same issues. The primordial question is one of jurisdiction-whether or not the Social Security Commission has jurisdiction over administrative actions filed before it against its own erring employees. Jurisdiction over the subject matter is vested by law. It is not acquired by the consent or acquiescence of the parties, nor the unilateral assumption thereof by any tribunal (Bacalso vs. Ramolete, G.R. No. L22488, October 26, 1967; De Jesus vs. Garcia, L-26816, February 28, 1967). The settled rule is that jurisdiction of a court or tribunal is determined by the statute in force at the time of the commencement of the action Aquisap vs. Basilio, L-21293, December 29, 1967; Rilloraza vs. Arciaga, L-23848, October 31, 1967; People vs. Pegarum 58 Phil. 715). And once acquired, jurisdiction continues, regardless of "subsequent happenings", until the case is finally terminated (People vs. Pegarum 57 Phil. 715). WE recall that the petition before US originated from administrative charges of dishonesty and electioneering filed by the Administrator of the Social Security Commission before the same office on May 23 and 24, 1966. The Commission's Resolution No. 1003, the validity of which is questioned here in G.R. No. 28870 for jurisdictional reasons, was promulgated on September 15, 1966. G.R. No. L-28870 was submitted for decision on January 21, 1969. The pertinent laws under the circumstances are the Social Security Act of 1954 (R.A. 1161), as amended by R.A. 2658 (which took effect June 18, 1960) and the Civil Service Act of 1959(R.A. 2260). Re: G.R. No. L-28870 The question posed in this appeal is not an untrodden path. Mendoza vs. Social Security Commission, et al. (L-29189, April 11, 1972, 44 SCRA 373) penned by Justice J.B.L. Reyes, is in point. The case arose in this wise: appellee herein, Victor D. Mendoza, then Manager of the Commercial and Industrial Loans Department in the Social Security System was subjected to formal investigation of various irregularities allegedly committed by him. Hearings were duly conducted by the Investigating Committee on the formal charges filed and the explanations offered by appellee. The records and proceedings were reviewed by a Committee of Commissioners that found Mendoza guilty on four charges, and recommended his separation from the service. But the Commission en bancdecided instead that said officer be only demoted in rank and salary, from that of Manager, Commercial and Industrial Loans Department, to that of Division Chief. The decision was embodied in Resolution No. 198 dated 9 February 1967. Mendoza then resorted to the Court a quo in quest of a writ of prohibition, with preliminary injunction, contending that the Commission had no authority to impose the penalties

embodied in its Resolution No. 198, the petitioner being covered by the Civil Service Law of 1962 (Republic Act 2260), Section 33 whereof provided the following: Sec. 23. Administrative Jurisdiction for Disciplining Officers and Employees.The Commissioner may, for dishonesty, oppression, misconduct, neglect of duty, conviction of a crime involving moral turpitude, notoriously disgraceful or immoral conduct, improper or unauthorized solicitation of contributions from subordinate employees and by teachers or school officials from school children, violation of the existing Civil Service Law and rules of reasonable office regulations, or in the interest of the service, remove any subordinate officer or employee from the service, demote him in rank, suspend him for not more than one year without pay or fine him in an amount not exceeding six months' salary. In meting out punishment, like penalties shall be imposed for like offenses and only one penalty shall be imposed in each case. The Commission answered the petition averring that it was empowered by section 5 of the Social Security Act (Republic Act No. 1161); . . . and that the Court of First Instance had no jurisdiction to review the resolutions of the Commission. After due trial, the court below, by decision of 13 January 1968, ruled that section 5 of the Social Security Act was inapplicable to the case since it did not involve a settlement of benefit claims; that the assailed Resolution No. 198 was void ab initio, the Commission having no power to discipline and penalize civil service officers to the exclusion of the Commissioner of Civil Service . . .. The latter duly appealed to this Court. It is clear that under section 33 of the Civil Service Act (Republic Act 2260) heretofore quoted, before the amendments introduced therein by Republic Act No. 6040, the sole power to impose disciplinary sanctions on civil service employees was vested exclusively in the Commissioner of Civil Service. This is emphasized by the provisions of section 27 of the Civil Service Rules requiring the Department Head concernedwithin 15 days from receipt of the complete record of the case, to forward such record with his comment and recommendation to the Commissioner for decision, so that, as pointed out by the court below, the Department Head's powers were purely recommendatory; it had no power to decide nor impose any penalty, much less to implement the decision or carry it out into execution. That the petitioner, as Manager of the Loans Department in the Social Security System, was and is a civil service official is plain from Article II (section 3) of the Civil Service Act of 1959, as well as from section 3 of the Social Security Act of 1954, as amended by Republic Act No. 2658. ARTICLE II.- Scope of the Civil ServiceSEC. 3. Positions embraced in the Civil Service.-The Philippine Civil Service shall embrace all branches, subdivisions and instrumentalities of the Government, including government-owned or controlled corporations, and appointments therein except as to those which are policy- determining, primarily confidential or highly technical in nature, shall be made only

according to merit and fitness, to be determined as far as practicable by competitive examination. Positions included in the civil service fall into three categories; namely, competitive or classified service, non-competitive or unclassified service and exempt service. The exempt service does not fall within the scope of this law (Emphasis supplied). SEC. 3. Social Security system.-x x x (c) The Commission, upon the recommendation of the Administrator, shall appoint an actually, medical director, and such other personnel as may be deemed necessary, shall fix their compensation, prescribe their duties and establish such methods and procedures as may insure the efficient, honest and economical administration of the provisions and purpose of this Act: Provided, however, That the personnel of the system shall be selected only from civil service eligibles certified by the Commissioner of Civil Service and shall be subject to civil service rules and regulations' (Emphasis supplied). By way of avoidance of the application of the legal dispositions cited, the respondent Social Security Commission contends that its officers and employees are not covered by the Civil Service Law and Rules, invoking the memorandum circulars of Commissioner Abelardo Subido, dated 8 January 1964 and 23 January 1964 (Exhibits '4' and pages '5', pages 217 and 218, Record), thatofficers and employees of government owned or controlled corporations performing proprietary functions who have entered into collective bargaining contracts with the management of their respective corporations, through their labor unions, fall in the exempt service and are not covered or protected by the Civil Service Act (Exhibit '4'). In the memorandum of 23 January 1964 (Exhibit '5'), the Commissioner of Civil Service further broadened the preceding circular, remarking thatThis office has observed that there are officers and employees of these corporations who, while not union members, accept benefits under the collective bargaining contract between union and management and in so doing, have by implied acquiescence, become parties to said collective bargaining contract. They, therefore, likewise fall under the exempt service and are not governed or protected by the Civil Service Act of 1959.' We entertain serious doubts on the validity of the foregoing circulars, in view of the fact that under section 6 of the Civil Service Act of 1959, the Exempt Serviceshall consist of the following: (a) Elective officers (b) Members of the commissioned and enlisted service of the Army, Navy and Air Force of the Philippines, (c) Persons employed on a contract basis.

It is clear from the foregoing that in order to belong to the exempt service and thus forfeit the protection of the Civil Service Law, a civilian non-elective officer must have obtained employment through a contract. In fact, section 2, paragraph (j), of the Civil Service Rules, interpreting section 6 of the Act, declares that(j) ... the term 'persons employed on a contract basis' refers to independent contractors and those who may be employed by them; it does not include employees or laborers who serve under the direction and supervision of a governmental agency, except aliens who may be thus employed on a contract basis when the exigencies of the service so require. In this context, the term 'independent contractor' refers to one who undertakes to do a piece of work for the government under his own responsibility, with minimum interference on the part of any governmental agency in the performance or accomplishment thereof. Plainly, the circulars in question invoked by respondent Commission improperly attempted to broaden the scope of the exempt service under the law, which was not within the powers of the Civil Service Commissioners to do. x x x x x x. We are not unmindful of the fact that by Republic Act No. 6040 the Legislature extended the scope of the exempt service to persons employed in government owned or controlled corporations primarily performing proprietary functions with collective bargaining agreements; and that furthermore, the same Act also amended section 33 of the Civil Service Act by adding at the end of the original section the following provisos: Provided, however, that heads of departments, agencies and instrumentalities, provinces and chartered cities, shall have original jurisdiction to investigate and decide on matters involving disciplinary action. Provided further, that when the penalty imposed is a reprimand or a fine not exceeding one month salary or suspension without pay for a period not exceeding one month, the decision of the aforementioned heads shall be final; but if the penalty imposed is heavier the decision shall be appealable to the Commission as provided in this Act: Provided finally, that a decision imposing removal shall always be subject to review by the Commission. Had the present case arisen, therefore, under Republic Act 6040, the Social Security Commission would have had jurisdiction, after due investigation, to impose the penalty of demotion subject only to appeal by the officer or employee affected to the Civil Service Commission. Unfortunately for appellant Commission, Republic Act No. 6040 was enacted on 4 August 1969, and the case at bar had been litigated, decided and appealed to the Supreme Court and submitted for decision as of February, 1969. Republic Act No. 6040 cannot be retroactively applied to the case, specially since the same act expressly provides in its section 47 thatrights and privileges vested or acquired under the provisions of the Civil Service Law, rules and regulations prior to the effectivity of this Act shall remain in force and effect' (italics Ours).

Clearly at the time the questioned Resolution No. 1003 was promulgated and implemented dismissing petitioner- appellant Amado Tolentino, the respondents-appellees Social Security Commission, Gilberto Teodoro and Angel Penano did not have the power to hear and decide administrative and disciplinary charges filed against erring employees of the Commission. WE are not, however, ready to dismiss the questioned Resolution No. 1003 as inutile The Social Security Commission, as an agency of the government, may be considered a department and respondent Gilberto Teodoro, its department head. Resolution No. 1003 may be treated as the recommendation of the department head which may be submitted to the Civil Service Commission for decision and/or appropriate action. At this juncture, and to pave the way for a complete resolution of the case at bar, WE must consider the constitutionality of the amendments to the Civil Service Act of 1959 as contained in Republic Act No. 6040, enacted ten years after or on August 4, 1969. As earlier noted, by Republic Act No. 6040, the legislature extended the scope of the exempt service to persons employed in government owned or controlled corporations primarily performing proprietary functions with collective bargaining agreements; in addition, it appended the following proviso to section 33 of the Civil Service ActProvided, however, that heads of departments, agencies and instrumentalities, provinces and chartered cities, shall have original jurisdiction to investigate and decide on matters involving disciplinary action: Provided further, that when the penalty imposed is a reprimand or a fine not exceeding one month salary or suspension without pay for a period not exceeding one month, the decision of the aforementioned heads shall he final; but if the penalty imposed is heavier the decision shall be appealable to the Commission as provided in this Act: Provided finally, that a decision imposing removal shall always be subject to review by the Commission. However, Section 1(1), Article XII (B) of the 1973 Constitution readsThe Civil Service embraces every branch, agency, subdivision, and instrumentality of the Government, including every government-owned or controlled corporation ... . Clearly, insofar as Republic Act No. 6040 insulates government-owned or controlled-corporations with collective bargaining agreements with their employees from the embrace of the Civil Service Commission, said statute is inconsistent with the fundamental law of the land. As such, it is void (Article 7, New Civil Code). RE: G.R. No. L-39149 In view of OUR decision in G.R. No. L- 28870, WE rule to setaside as null and void the decision of respondent Court of Industrial Relations dated March 5, 1974, and its subsequent en banc resolutions dated August 13, 1974 the same having been issued without jurisdiction. At the time Amado Tolentino was charged with and convicted of dishonesty in 1966 up to the time the Prosecution Division of the Court of Industrial Relations filed with said court the unfair labor suit docketed as Case No. 5042-ULP on May 7, 1968, the power to impose disciplinary sanctions on erring employees of the Social Security Commission was vested exclusively in the Commissioner of Civil Service, without prejudice to appeal to the Civil Service Board of Appeals (sections 18 and 36, R.A. 2260). Consequently, the Court of Industrial Relations, created under Commonwealth Act No. 103, a statute of earlier vintage, had no jurisdiction over Case No. 5042-ULP. Again, jurisdiction of a court is

determined by the statute in force at the time of the commencement of the action Aquisap vs. Basilio, supra Rilloraza vs. Arciaga, L- 23848, October 31, 1967; People vs. Pegarum, supra). WE find no further need to scrutinize the findings of the Court of Industrial Relations. To do so would benefit no one. WHEREFORE, THE QUESTIONED RESOLUTION NO. 1003 TOGETHER WITH THE RECORDS THEREOF ARE HEREBY REMANDED TO THE OFFICE OF THE COMMISSIONER OF CIVIL SERVICE FOR APPROPRIATE ACTION. THE DECISION AND RESOLUTION APPEALED FROM IN G.R. NO. L-39149 ARE HEREBY SET ASIDE AS NULL AND VOID FOR HAVING BEEN RENDERED WITHOUT JURISDICTION. NO COSTS. G.R. No. 143647 November 11, 2005 YUSUKE FUKUZUME,* Petitioner, vs. PEOPLE OF THE PHILIPPINES,** Respondent. Before us is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the Decision1 of the Court of Appeals (CA) dated March 13, 2000 in CA-G.R. CR No. 21888, which affirmed with modification the judgment of the Regional Trial Court (RTC) of Makati, Branch 146 dated October 21, 1996 in Criminal Case No. 95-083, finding herein accused-appellant guilty beyond reasonable doubt of the crime of estafa, sentencing him to suffer the penalty of imprisonment for twenty (20) years and to pay private complainant the sum of P424,000.00; and the CA Resolution dated June 16, 2000 denying petitioners motion for reconsideration.2 The facts of the case are as follows: Private complainant Javier Ng Yu (Yu) is a businessman engaged in buying and selling aluminum scrap wires.3Sometime in July 1991, Yu, accompanied by a friend, Mr. Jovate,4 who was the vice-president of Manila Electric Company, went to the house of herein accused-appellant Yusuke Fukuzume (Fukuzume) in Paraaque.5 Jovate introduced Fukuzume to Yu telling the latter that Fukuzume is from Furukawa Electric Corporation (Furukawa) and that he has at his disposal aluminum scrap wires.6 Fukuzume confirmed this information and told Yu that the scrap wires belong to Furukawa but they are under the care of National Power Corporation (NAPOCOR).7 Believing Fukuzumes representation to be true, Yu agreed to buy the aluminum scrap wires from Fukuzume.8 The initial agreed purchase price was P200,000.00.9 Yu gave Fukuzume sums of money on various dates which eventually totaled P290,000.00, broken down as follows: P50,000.00, given on July 12, 1991; P20,000.00, given on July 22, 1991; P50,000.00, given on October 14, 1991; and, P170,000.00, given on October 18, 1991.10 Fukuzume admitted that he received the same from Yu and that he still owes him the amount of P290,000.00.11 To support his claim that the aluminum scrap wires being sold are indeed owned by Furukawa, that these scrap wires are with NAPOCOR, and that Furukawas authorized representatives are allowed to withdraw and dispose of said scrap wires, Fukuzume gave Yu two certifications dated December 17, 1991 and December 27, 1991 purportedly issued by NAPOCOR and signed by its legal counsel by the name of R. Y. Rodriguez.12 At the time that Fukuzume gave Yu the second certification, he asked money from the latter telling him that it shall be given as gifts to some of the people in NAPOCOR. Yu gave Fukuzume money and, in exchange, the latter issued two checks, one forP100,000.00 and the other for P34,000.00.13 However, when Yu deposited the checks, they were dishonored on the ground that the account from which the checks should have been drawn is already closed.14 Subsequently, Yu called up Fukuzume to inform him that the checks bounced.15 Fukuzume instead told him not to worry because in one or two weeks he will give Yu the necessary authorization to

enable him to retrieve the aluminum scrap wires from NAPOCOR.16 On January 17, 1992, Fukuzume gave Yu a letter of even date, signed by the Director of the Overseas Operation and Power Transmission Project Divisions of Furukawa, authorizing Fukuzume to dispose of excess aluminum conductor materials which are stored in their depots in Tanay and Bulacan.17 Thereafter, Fukuzume agreed to accompany Yu when the latter is going to take the aluminum scrap wires from the NAPOCOR compound.18 When Yu arrived at the NAPOCOR compound on the scheduled date, Fukuzume was nowhere to be found.19 Hence, Yu proceeded to show the documents of authorization to NAPOCOR personnel. However, the people from NAPOCOR did not honor the authorization letter issued by Furukawa dated January 17, 1992.20NAPOCOR also refused to acknowledge the certifications dated December 17, 1991 and December 27, 1991 claiming that these are spurious as the person who signed these documents is no longer connected with NAPOCOR as of December 1991.21 Unable to get the aluminum scrap wires from the NAPOCOR compound, Yu talked to Fukuzume and asked from the latter the refund of the money he paid him.22 Fukuzume promised to return Yus money.23 When Fukuzume failed to comply with his undertaking, Yu sent him a demand letter asking for the refund of P424,000.00 plus loss of profits.24 Subsequently, Yu filed a complaint with the National Bureau of Investigation (NBI).25 In an Information, dated November 4, 1994, filed with the RTC of Makati, Fukuzume was charged with estafa committed as follows: That sometime in the month of July, 1991 up to September 17, 1992, in the Municipality of Makati, Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, with intent to prejudice and defraud Javier Yu y Ng, did then and there willfully, unlawfully and feloniously make false representation and fraudulent manifestation that he is the duly authorized representative of Furukawa Electric Co. Ltd., in the Philippines, and was authorized to sell excess aluminum conductor materials not being used by Napocor and Furukawa, the accused knowing full well that those representations were false and were only made to induce and convince said Javier Yu y Ng to buy said materials, who believing said representations to be true, gave and delivered the total amount of P424,000.00 but the accused once in possession of the money, far from complying with his obligation to deliver said aluminum conductor materials to herein complainant, with intent of gain, unfaithfulness and abuse of confidence, applied and used for his own personal use and benefit the said amount and despite repeated demands failed and refused and still fails and refuses to account for, to the damage and prejudice of Javier Yu y Ng in the aforementioned amount of P424,000.00. CONTRARY TO LAW.26 Upon being arraigned on February 28, 1995, Fukuzume pleaded not guilty.27 Trial ensued. In its Decision dated October 21, 1996, the trial court found Fukuzume guilty as charged. The dispositive portion of the RTC decision reads: WHEREFORE, all the foregoing premises considered, the Court hereby finds the accused GUILTY beyond reasonable doubt of the crime of estafa and hereby orders him to suffer the maximum penalty of imprisonment for twenty (20) years. With respect to his civil liability, accused is hereby ordered to pay complainant the amount ofP424,000.00 plus legal interest from the date of demand until fully paid. SO ORDERED.28 Aggrieved by the trial courts decision, Fukuzume filed an appeal with the CA. On March 13, 2000, the CA promulgated its decision affirming the findings and conclusions of the trial court but modifying the penalty imposed, thus:

 although the trial court correctly imposed the maximum penalty of imprisonment for twenty (20) years, it failed to determine the minimum penalty for the offense committed (prision correccional in its maximum period to prision mayor in its minimum period but imposed in the maximum period), hence, the penalty is modified to six (6) years and one (1) day of prision mayor in its minimum period, as the minimum, to not more than twenty (20) years ofreclusion temporal in its maximum period, as maximum.29 Accordingly, the dispositive portion of the CA Decision reads: WHEREFORE, the judgment appealed from, except for the aforementioned modification in the prison term of appellant, is hereby AFFIRMED. SO ORDERED.30 Hence, herein petition filed by Fukuzume based on the following grounds: THE DECISION OF THE HONORABLE COURT OF APPEALS THAT THE TRIAL COURT OF MAKATI HAS JURISDICTION IS NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE DECISIONS OF THE SUPREME COURT. THE HONORABLE COURT OF APPEALS HAD DECIDED A QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE DECISIONS OF THE SUPREME COURT WHEN IT CONCLUDED THAT THE ALLEGED FALSE PRETENSE WAS EXECUTED PRIOR TO OR SIMULTANEOUS WITH THE ALLEGED COMMISSION OF THE FRAUD. THE HONORABLE COURT OF APPEALS HAD DECIDED A QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE DECISIONS OF THE SUPREME COURT BY FAILING TO CONSIDER THAT THE ORIGINAL TRANSACTION BETWEEN THE PETITIONER AND PRIVATE COMPLAINANT HAD BEEN NOVATED AND CONVERTED INTO A MERE DEBTORCREDITOR RELATIONSHIP, THEREBY EXTINGUISHING THE INCIPIENT CRIMINAL LIABILITY THEREOF, IF ANY.31 We agree with Fukuzumes contention that the CA erred in ruling that the RTC of Makati has jurisdiction over the offense charged. The CA ruled: The trial court of Makati has jurisdiction. Subject to existing laws, in all criminal prosecutions, the action shall be instituted and tried in the court of the municipality or territory wherein the offense was committed or any one of the essential ingredients thereof took place (Rule 110, Sec. 15, Rules of Court). Although the false representation and verbal contract of sale of the aluminum scrap wires took place at appellants residence in Paraaque, appellant and private complainant nevertheless admitted that the initial payment of P50,000.00 for said transaction was made at the Hotel Intercontinental in Makati City (Record, pp. 15, 68). Hence, an element of the crime that the offended party was induced to part with his money because of the false pretense occurred within the jurisdiction of the lower court giving it jurisdiction over the instant case. The CA ruled on the basis of the sworn statement of Yu filed with the NBI on April 19, 199432 and the affidavit of Fukuzume which was subscribed on July 20, 1994.33 With respect to the sworn statement of Yu, which was presented in evidence by the prosecution, it is clear that he alleged therein that on July 12, 1991, he gave Fukuzume the amount of P50,000.00 at the Intercontinental Hotel in Makati. However, we agree with Fukuzumes contention that Yu testified during his direct examination that on July 12, 1991 he gave the amount of P50,000.00 to Fukuzume in the latters house. It is not disputed that Fukuzumes house is located in Paraaque. Yu testified thus:

Q Mr. Witness, you testified the last time that you know the accused in this case, Mr. Yusuke Fukuzume? A Yes, sir. Q Now, would you enlighten us under what circumstance you came to know the accused? A I know the accused Mr. Yusuke Fukuzume through Mr. Hubati. Q And why or how did Mr. Hubati come to know the accused, if you know? A Mr. Hubati came to my place dealing with the aluminum scrap wires. ATTY. N. SERING Your Honor, may I move to strike out the answer. It is not responsive to the question. COURT Please wait until the answer is completed. Q Now, you met this Mr. Hubati. How? A He came to me offering me aluminum scrap wires. FISCAL E. HIRANG Q When was that, Mr. Witness? A That was in 1991, sir. COURT When? FISCAL E. HIRANG Your Honor please, may the witness be allowed to consult his memorandum. A July 12, 1991, sir. Q And what transpired during that time you met Mr. Hubati? A We went to the house of Mr. Fukuzume and game (sic) him some amount of money. Q Now, would you tell the Court the reason why you parted to the accused in this case the amount of money? A In payment of the aluminum scrap wires and we have documents to that effect. Q Now, please tell us what really was that transaction that took place at the house of Mr. Fukuzume on that particular date? A Our agreement with Mr. Hubati and with Mr. Fukuzume is that, I am going to give money in payment of the aluminum scrap wires coming from Furukawa Eletric Company. Q How much is the amount of money which you agreed to give to the accused? A Our first agreement was for P200,000. Q Where is that aluminum scrap located? A The electric aluminum scrap wires was or were under the care of the National Power Corporation but according to Mr. Fukuzume it belongs to Furukawa Electric Company. Q In short, Mr. Witness, on July 12, 1991, you only gave to the accused the amount of P50,000? ATTY. N. SERING Objection, Your Honor. FISCAL E. HIRANG The complainant testified he gave P50,000. I am asking how much the complainant gave to the accused on that particular date. A On July 12, I gave him P50,000 on that date. Q Not P200,000? A No, sir.34 Settled is the rule that whenever there is inconsistency between the affidavit and the testimony of a witness in court, the testimony commands greater weight considering that affidavits taken ex parte are inferior to testimony given in court, the former being almost invariably incomplete and oftentimes inaccurate.35 More importantly, we find nothing in the direct or cross-examination of Yu to establish that he gave any money to Fukuzume or transacted business with him with respect to the subject aluminum scrap wires inside or within the premises of the Intercontinental Hotel in Makati, or anywhere in

Makati for that matter. Venue in criminal cases is an essential element of jurisdiction.36 Citing Uy vs. Court of Appeals,37 we held in the fairly recent case of Macasaet vs. People38 that: It is a fundamental rule that for jurisdiction to be acquired by courts in criminal cases the offense should have been committed or any one of its essential ingredients took place within the territorial jurisdiction of the court. Territorial jurisdiction in criminal cases is the territory where the court has jurisdiction to take cognizance or to try the offense allegedly committed therein by the accused. Thus, it cannot take jurisdiction over a person charged with an offense allegedly committed outside of that limited territory. Furthermore, the jurisdiction of a court over the criminal case is determined by the allegations in the complaint or information. And once it is so shown, the court may validly take cognizance of the case. However, if the evidence adduced during the trial show that the offense was committed somewhere else, the court should dismiss the action for want of jurisdiction.39(Emphasis supplied) Where life or liberty is affected by its proceedings, the court must keep strictly within the limits of the law authorizing it to take jurisdiction and to try the case and to render judgment.40 In the present case, the criminal information against Fukuzume was filed with and tried by the RTC of Makati. He was charged with estafa as defined under Article 315, paragraph 2(a) of the Revised Penal Code, the elements of which are as follows: 1. That there must be a false pretense, fraudulent act or fraudulent means. 2. That such false pretense, fraudulent act or fraudulent means must be made or executed prior to or simultaneously with the commission of the fraud. 3. That the offended party must have relied on the false pretense, fraudulent act, or fraudulent means, that is, he was induced to part with his money or property because of the false pretense, fraudulent act, or fraudulent means. 4. That as a result thereof, the offended party suffered damage.41 The crime was alleged in the Information as having been committed in Makati. However, aside from the sworn statement executed by Yu on April 19, 1994, the prosecution presented no other evidence, testimonial or documentary, to corroborate Yus sworn statement or to prove that any of the aboveenumerated elements of the offense charged was committed in Makati. Indeed, the prosecution failed to establish that any of the subsequent payments made by Yu in the amounts of P50,000.00 on July 12, 1991, P20,000.00 on July 22, 1991, P50,000.00 on October 14, 1991 and P170,000.00 on October 18, 1991 was given in Makati. Neither was there proof to show that the certifications purporting to prove that NAPOCOR has in its custody the subject aluminum scrap wires and that Fukuzume is authorized by Furukawa to sell the same were given by Fukuzume to Yu in Makati. On the contrary, the testimony of Yu established that all the elements of the offense charged had been committed in Paraaque, to wit: that on July 12, 1991, Yu went to the house of Fukuzume in Paraaque; that with the intention of selling the subject aluminum scrap wires, the latter pretended that he is a representative of Furukawa who is authorized to sell the said scrap wires; that based on the false pretense of Fukuzume, Yu agreed to buy the subject aluminum scrap wires; that Yu paid Fukuzume the initial amount of P50,000.00; that as a result, Yu suffered damage. Stated differently, the crime of estafa, as defined and penalized under Article 315, paragraph 2(a) of the Revised Penal Code, was consummated when Yu and Fukuzume met at the latters house in Paraaque and, by falsely pretending to sell aluminum scrap wires, Fukuzume was able to induce Yu to part with his money. The Office of the Solicitor General argues that Fukuzume himself alleged in his affidavit dated July 20, 1994 that in an unspecified date, he received P50,000.00 from Yu at the Intercontinental Hotel in Makati.

However, we cannot rely on this affidavit for the reason that it forms part of the records of the preliminary investigation and, therefore, may not be considered evidence. It is settled that the record of the preliminary investigation, whether conducted by a judge or a prosecutor, shall not form part of the record of the case in the RTC.42 In People vs. Crispin,43 this Court held that the fact that the affidavit formed part of the record of the preliminary investigation does not justify its being treated as evidence because the record of the preliminary investigation does not form part of the record of the case in the RTC. Such record must be introduced as evidence during trial, and the trial court is not compelled to take judicial notice of the same.44 Since neither prosecution nor defense presented in evidence Fukuzumes affidavit, the same may not be considered part of the records, much less evidence. From the foregoing, it is evident that the prosecution failed to prove that Fukuzume committed the crime of estafa in Makati or that any of the essential ingredients of the offense took place in the said city. Hence, the judgment of the trial court convicting Fukuzume of the crime of estafa should be set aside for want of jurisdiction, without prejudice, however, to the filing of appropriate charges with the court of competent jurisdiction. It is noted that it was only in his petition with the CA that Fukuzume raised the issue of the trial courts jurisdiction over the offense charged. Nonetheless, the rule is settled that an objection based on the ground that the court lacks jurisdiction over the offense charged may be raised or considered motu propio by the court at any stage of the proceedings or on appeal.45 Moreover, jurisdiction over the subject matter in a criminal case cannot be conferred upon the court by the accused, by express waiver or otherwise, since such jurisdiction is conferred by the sovereign authority which organized the court, and is given only by law in the manner and form prescribed by law.46 While an exception to this rule was recognized by this Court beginning with the landmark case of Tijam vs. Sibonghanoy,47 wherein the defense of lack of jurisdiction by the court which rendered the questioned ruling was considered to be barred by laches, we find that the factual circumstances involved in said case, a civil case, which justified the departure from the general rule are not present in the instant criminal case. Thus, having found that the RTC of Makati did not have jurisdiction to try the case against Fukuzume, we find it unnecessary to consider the other issues raised in the present petition. WHEREFORE, the instant petition is GRANTED. The assailed decision and resolution of the Court of Appeals in CA-G.R. CR No. 21888 are SET ASIDE on ground of lack of jurisdiction on the part of the Regional Trial Court of Makati, Branch 146. Criminal Case No. 95-083 is DISMISSED without prejudice. SO ORDERED. G.R. No. 110315 January 16, 1998 RENATO CUDIA, petitioner, vs. THE COURT OF APPEALS, The HON. CARLOS D. RUSTIA, in his capacity as Presiding Judge of the Regional Trial Court Branch LVI, Angeles City, respondents. Petitioner assails the decision 1 of the Court of Appeals dated May 14, 1993 dismissing his petition and finding that he had not been placed in double jeopardy by the filing of a second information against him, although a first information charging the same offense had been previously dismissed, over petitioner's vigorous opposition. The factual antecedents of the case are as follows:

On June 28, 1989, petitioner was arrested in Purok 6, Barangay Santa Inez, Mabalacat, 2 Pampanga, by members of the then 174th PC Company, allegedly for possessing an unlicensed revolver. He was brought to Camp Pepito, Sto. Domingo, Angeles City, where he was detained. A preliminary investigation was thereafter conducted by an investigating panel of prosecutors. As a result thereof, the City Prosecutor of Angeles City filed an information against him for illegal possession of firearms and ammunition, docketed as Criminal Case No. 11542, which reads as follows: That on or about the 28th day of June, 1989, in the City of Angeles, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession and under his control one (1) .38 Cal. Revolver (paltik) without any Serial Number with six (6) live ammunitions, which he carried outside of his residence without having the necessary authority and permit to carry the same. ALL CONTRARY TO LAW. 3 (Emphasis petitioner's.) The case was raffled to Branch 60 of the Regional Trial Court of Angeles City (hereafter the Angeles City RTC). Upon his arraignment on August 14, 1989, petitioner pleaded "not guilty" to the charges. During the ensuing pre-trial, the court called the attention of the parties to the fact that, contrary to the information, petitioner had committed the offense in Mabalacat, and not in Angeles City. Inasmuch as there was an existing arrangement among the judges of the Angeles City RTC as to who would handle cases involving crimes committed outside of Angeles City, the judge ordered the re-raffling of the case to a branch assigned to criminal cases involving crimes committed outside of the city. Thereafter, the case was assigned to Branch 56 of the Angeles City RTC. On October 31, 1989 however, the provincial prosecutor of Pampanga also filed an information charging petitioner with the same crime of illegal possession of firearms and ammunition, docketed as Criminal Case No. 11987. The case was likewise raffled to Branch 56 of the Angeles City RTC. This prompted the prosecutor in Criminal Case No. 11542 to file a Motion to Dismiss/Withdraw the Information, stating "that thru inadvertence and oversight, the Investigating Panel was misled into hastily filing the Information in this case, it appearing that the apprehension of the accused in connection with the illegal possession of unlicensed firearm and ammunition was made in Bgy. Sta. Inez, Mabalacat, Pampanga, within the jurisdiction of the Provincial Prosecutor of Pampanga" 4 and that the Provincial Prosecutor had filed its own information against the accused, as a result of which two separate informations for the same offense had been filed against petitioner. The latter filed his opposition to the motion, but the trial court nonetheless, granted said motion to dismiss in its order dated April 3, 1990. On May 21, 1990, petitioner filed a Motion to Quash Criminal Case No. 11987 on the ground that his continued prosecution for the offense of illegal possession of firearms and ammunition for which he had been arraigned in Criminal Case No. 11542, and which had been dismissed despite his opposition would violate his right not to be put twice in jeopardy of punishment for the same offense. The trial court denied the motion to quash; hence, petitioner raised the issue to the Court of Appeals. The appellate court, stating that there was no double jeopardy, dismissed the same on the ground that the petition could not have been convicted under the first information as the same was defective. Petitioner's motion for reconsideration was denied; hence, this appeal. Petitioner points out the following as errors of the Court of Appeals: 1. THE COURT OF APPEALS ERRED WHEN IT FOUND THAT THE CITY PROSECUTOR OF ANGELES CITY DID NOT HAVE THE AUTHORITY TO FILE THE FIRST INFORMATION.

2. THE COURT OF APPEALS ERRED IN HOLDING THAT THE FIRST JEOPARDY DID NOT ATTACH BECAUSE THE FIRST INFORMATION FILED AGAINST THE ACCUSED WAS NOT VALID. We shall discuss the assigned errors jointly as they are closely related. Section 21, Article III of the 1987 Constitution provides that "(n)o person shall be twice put in jeopardy of punishment for the same offense . . ." Pursuant to this provision, Section 7 of Rule 117 of the Rules of Court provides in part that "(w)hen an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, . . . " In order to successfully invoke the defense of double jeopardy, the following requisites must be present: (1) a first jeopardy must have attached prior to the second; (2) the first jeopardy must have been validly terminated; and (3) the second jeopardy must be for the same offense or the second offense includes or is necessarily included in the offense charged in the first information, or is an attempt to commit the same or a frustration thereof. 5 In determining when the first jeopardy may be said to have attached, it is necessary to prove the existence of the following: (a) Court of competent jurisdiction (b) Valid complaint or information (c) Arraignment (d) Valid plea (e) The defendant was acquitted or convicted or the case was dismissed or otherwise terminated without the express consent of the accused. 6 It is undisputed that petitioner was arraigned in Criminal Case No. 11542, that he pleaded "not guilty" therein, and that the same was dismissed without his express consent, nay, over his opposition even. We may thus limit the discussion to determining whether the first two requisites have been met. As to the first requisite, it is necessary that there be a court of competent jurisdiction, for jurisdiction to try the case is essential to place an accused in jeopardy. The Court of Appeals and the Solicitor General agreed that Branch 60, which originally had cognizance of Criminal Case No. 11542, had no jurisdiction over the case. In the words of the Solicitor General: The first jeopardy did not also attach because Branch 60 of the Regional Trial Court of Angeles City was not the proper venue for hearing the case. Venue in criminal cases is jurisdictional, being an essential element of jurisdiction (Agbayani vs. Sayo, 89 SCRA 699). In all criminal prosecutions, the action shall be instituted and tried in the court of the municipality or territory wherein the offense was committed or any one of the essential ingredients thereof took place (People vs. Tomio, 202 SCRA 77). Although both Branches 60 and 56 are sitting in Angeles City, it is Branch 56 which has jurisdiction to try offenses committed in Mabalacat, Pampanga. Petitioner was arraigned before Branch 60, not Branch 56. 7

It must be borne in mind that the question of jurisdiction of a court over cases filed before it must be resolved on the basis of the law or statute providing for or defining its jurisdiction. Administrative Order No. 7, Series of 1983 provides that: Pursuant to the provisions of Section 18 of B.P. Blg. 129, the Judiciary Reorganization Act of 1980, and Section 4 of Executive Order No. 864 of the President of the Philippines, dated January 17, 1983, the territorial areas of the Regional Trial Courts in Region One to Twelve are hereby defined as follows: xxx xxx xxx PAMPANGA xxx xxx xxx 1. Branches LVI to LXII, inclusive, with seats at Angeles City comprising ANGELES CITY and the municipalities of Mabalacat, Magalang, and Porac as well as part of Clark Field U.S. Airbase. xxx xxx xxx Clearly, Branches 56 to 62 had jurisdiction over the respective territories as apportioned. Consequently, notwithstanding the internal arrangement of the judges of the Angeles City RTCs, Branch 60 indubitably had jurisdiction over instant case. Writ large in lawbooks in the doctrine that jurisdiction is conferred by law and not by mere administrative policy of any trial court. With respect to the second requisite, however, it is plainly apparent that the City Prosecutor of Angeles City had no authority to file the first information, the offense having been committed in the Municipality of Mabalacat, which is beyond his jurisdiction. Presidential Decree No. 1275, in relation to Section 9 of the Administrative Code of 1987, pertinently provides that: Sec. 11. The provincial or the city fiscal shall: xxx xxx xxx b) Investigate and/or cause to be investigated all charges of crimes, misdemeanors and violations of all penal laws and ordinances within their respective jurisdictions and have the necessary information or complaint prepared or made against the persons accused. In the conduct of such investigations he or his assistants shall receive the sworn statements or take oral evidence of witnesses summoned by subpoena for the purpose. xxx xxx xxx (Emphasis supplied It is thus the Provincial Prosecutor of Pampanga, not the City Prosecutor, who should prepare informations for offenses committed within Pampanga but outside of Angeles City. An information, when required to be filed by a public prosecuting officer, cannot be filed by another. 8 It must be exhibited or presented by the prosecuting attorney or someone authorized by law. If not, the court does not acquire jurisdiction. 9 Petitioner, however, insists that his failure to assert the lack of authority of the City Prosecutor in filing the information in question is deemed a waiver thereof. 10 As correctly pointed out by the Court of Appeals, petitioner's plea to an information before he filed a motion to quash may be a waiver of all objections to it insofar as formal objections to the pleadings are concerned. But by clear implication, if not by express provision of the Rules of Court, and by a long line of uniform decisions, 11 questions

relating to want of jurisdiction may be raised at any stage of the proceeding. It is a valid information signed by a competent officer which, among other requisites, confers jurisdiction on the court over the person of the accused (herein petitioner) and the subject matter of the accusation. In consonance with this view, an infirmity in the information, such as lack of authority of the officer signing it, cannot be cured by silence, acquiescence, or even by express consent. 12 In fine, there must have been a valid and sufficient complaint or information in the former prosecution. If, therefore, the complaint or information was insufficient because it was so defective in form or substance that the conviction upon it could not have been sustained, its dismissal without the consent of the accused cannot be pleaded. As the fiscal had no authority to file the information, the dismissal of the first information would not be a bar to petitioner's subsequent prosecution. Jeopardy does not attach where a defendant pleads guilty to a defective indictment that is voluntarily dismissed by the prosecution. 13 Petitioner next claims that the lack of authority of the City Prosecutor was the error of the investigating panel and the same should not be used to prejudice and penalize him. It is an all too familiar maxim that the State is not bound or estopped by the mistakes or inadvertence of its officials and employees. 14 To rule otherwise could very well result in setting felons free, deny proper protection to the community, and give rise to the possibility of connivance between the prosecutor and the accused. Finally, petitioner avers that an amendment of the first information, and not its dismissal, should have been the remedy sought by the prosecution. Suffice it to say that this Court, in Galvez vs. Court of Appeals 15 has ruled that even if amendment is proper, pursuant to Section 14 of Rule 110, it is also quite plausible under the same provision that, instead of an amendment, an information may be dismissed to give way to the filing of a new information. In light of the foregoing principles, there is thus no breach of the constitutional prohibition against twice putting an accused in jeopardy of punishment for the same offense for the simple reason that the absence of authority of the City Prosecutor to file the first information meant that petitioner could never have been convicted on the strength thereof. As the first information was fatally defective for lack of authority of the officer filing it, the instant petition must fail for failure to comply with all the requisites necessary to invoke double jeopardy. WHEREFORE, premises considered, the petition is hereby DENIED. The decision of the Court of Appeals in CA-G.R. SP. No. 24958 is AFFIRMED. No costs. SO ORDERED. G.R. Nos. 105965-70 August 9, 1999 GEORGE UY, petitioner, vs. SANDIGANBAYAN, OMBUDSMAN and ROGER C. BERBANO, SR., Special Prosecution Officer III, Office of the Special Prosecutor, respondents. This petition for certiorari and prohibition seeks to annul and set aside the resolution1 of the Sandiganbayan denying petitioner's motion to quash the six (6) informations charging him with violation of Section 3 (e), R.A. No. 3019, as amended, and to permanently enjoin the respondents from proceeding with the criminal cases insofar as petitioner is involved. At times material hereto, petitioner was Deputy Comptroller of the Philippine Navy. He was designated by his immediate supervisor, Captain Luisito F. Fernandez, Assistant Chief of Naval Staff for Comptrollership, to act on the latter's behalf, during his absence, on matters relating to the activities of

the Fiscal Control Branch, O/NG. This included the authority to sign disbursement vouchers relative to the procurement of equipment needed by the Philippine Navy.1wphi1.nt On July 2, 1991, six (6) informations for estafa through falsification of official documents and one (1) information for violation of Section 3 (e), R.A. No. 3019, as amended, were filed with the Sandiganbayan against petitioner and nineteen (19) co-accused, namely: (Ret.) Bgen. Mario S. Espina (then Assistant Secretary for Installations and Logistics, Department of National Defense), (Ret.) Rear Admiral Simeon M. Alejandro (then Flag Officer in Command, Philippine Navy), CDR Rodolfo Guanzon, CDR Erlindo A. Erolin, CAPT. Manual Ison (then Commander of the Naval Supply Center, Philippine Navy), CAPT. Andres Andres, LCDR Gilmer B. Batestil, LCDR Jose Alberto I. Velasco, Jr., LTSG Edgar L. Abogado, LT. Teddy O. Pan, LT. Ronald O. Sison, Reynaldo Paderna (Chief Accountant), Antonio Guda (Supply Accountable Officer, Fort San Felipe, Cavite, Philippine Navy), Loida T. Del Rosario (Typist), Marissa Bantigue (owner of MAR GEN Enterprise), Avelina Avila (owner of Avelina Avila General Merchandise), Jenis B. Bantigue (owner of JAB GEN Merchandise), Maria M. Capule (owner of MM Capule Enterprise) and Andrea C. Antonio (owner of AC Antonio Enterprise). On September 20, 1991, the Sandiganbayan issued an Order2 directing a comprehensive reinvestigation of the cases against all the twenty (20) accused. After conducting the re-investigation, the Special Prosecutor issued an Order3 dated November 14, 1991 recommending that the informations for estafa through falsification of official documents be withdrawn and in lieu thereof, informations for violation of Section 3 (e) of R. A. No. 3019, as amended, be filed against eleven (11) accused,4 which included the petitioner. In a Memorandum5 dated December 5, 1991, Special Prosecutor Aniano A. Desierto reduced the number of those to be charged under R.A. No. 3019, as amended, to five (5),6 including petitioner. Acting on the separate motions for reconsideration of the five (5) remaining accused, the Special Prosecutor issued an Order7 dated February 18, 1992 dropping two (2) more names8 from the five (5) officers recommended for prosecution, and recommending that six (6) separate informations for violation of Section 3 (e), R.A. 3019, as amended, be filed against the petitioner, LCMDR. Rodolfo Guanzon and LT. Teddy Pan. Except for the variance in the Purchase Order numbers involved and the Payees,9 the six (6) amended informations10 filed by Special Prosecutor Officer III Roger C. Berbano, Sr. recite identical allegations, viz: That on or about November 1985, and for sometime prior or subsequent thereto, in Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, CDR. Rodolfo Guanzon, being then the Procurement Officer, Philippine Navy, LCDR. George Uy, being then the Assistant Chief of Naval Staff Comptrollership, Philippine Navy and Lt. Teddy O. Pan, being then the Naval Group Inspector, Philippine Navy, all public officials, and committing the offense in relation to their office, did then and there wilfully, unlawfully and criminally, through evident bad faith or gross inexcusable negligence, cause undue injury to the Government, and in the exercise of their separate official functions, to wit: accused Guanzon initiated/prepared the Abstract of Canvass and Recommendation of Awards, Certificate of Emergency Purchase and Reasonableness of Price, signed the PO, DV, validated PO No. . . ., accused Uy signed the DV in behalf of the Assistant Chief of Naval Comptrollership, accused Pan as N6 conducted the preaudit and affixed his signature on the same P.O., the Sales Invoice and Technical Inspection Report which documents said accused had the duty to check/verify/examined, thereby "acting or omitting to act" in a situation where there is a duty to act, in that only 100 seal rings were ordered at a unit price of P98.70, yet 1,000 pieces appear to have been sold with total price of P98,700.00, hence there was gross error in multiplication as shown on the face of the aforesaid PO and other supporting documents, resulting to an overpayment of P88,930.00 to . . ., thereby

depriving the Government/Philippine Navy of the use thereof until its remittance/return to the Government/Philippine Navy by . . . in December, 1991. On April 21, 1992, the petitioner filed with the Sandiganbayan a motion to quash11 the informations on the following grounds: 1. The Sandiganbayan has no jurisdiction over the offense charged or the person of the accused. 2. The officer who has filed the informations had no authority to do so. 3. The facts charged do not constitute an offense. 4. More than one (1) offense is charged. On June 10, 1992, the Sandiganbayan issued the now-assailed Resolution denying petitioner's motion to quash for lack of merit. It passed upon the grounds set forth by petitioner in this wise: On the first issue raised by accused-movant, we are not inclined to rule that this Court has no jurisdiction over the person of accused-movant or over the offenses charged herewith. As intimated by the prosecution, this Court has several cases pending before it involving crimes committed by military officers in relation to their office. Unless and until the Highest Tribunal rules otherwise, this Court has no judicious recourse but to entertain and try the various criminal cases filed by the Office of the Special Prosecutor involving military officers and men accused of committing crimes "in relation to their office," and those involving violation of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act. Be that as it may, being prosecuted for violation of R.A. 3019, as amended, accused-movant axiomatically is subject to the jurisdiction of this Court. We cannot likewise sustain accused-movant's stance that the officer who has filed the informations in the cases at bar had no authority to do so. Both the offense charged and the person of accused-movant being within the exclusive jurisdiction of this Court, it stands to reason that the preliminary investigation and prosecution of the instant criminal charges belong to, and are the exclusive prerogatives of, the Office of the Ombudsman, as provided for in Section 15(1) of Republic Act No. 6770. Neither are we impressed with the asseveration that the acts charged in the amended informations at bar do not constitute an offense. Such a claim cannot stand in the face of unequivocal rulings of the Supreme Court, thus: The fundamental rule in considering a motion to quash on the ground that the averments of the information are not sufficient to constitute the offense charged is whether the facts alleged, if hypothetically admitted, would meet the essential elements of the offense, as defined in the law. (People v. Segovia, 103 Phil. 1162). As a general proposition, too, a motion to quash on the ground that the allegations in the information do not constitute the offense charged, or of any offense for that matter, should be resolved on the basis alone of said allegations whose truth and veracity are hypothetically admitted. (People v. Navarro, 75 Phil. 516). The general rule is that in resolving the motion to quash a criminal complaint or information, the facts alleged therein should be taken as they are. This is especially so if the motion to quash is based on the ground that the facts charged do not constitute offense, but he court may consider additional facts which the fiscal admits to be true. (People v. Navarro, supra).

In consonance with the foregoing doctrinal pronouncements, the quashal of the informations at bar cannot be sustained since they are sufficient in form and substance to charge indictable offenses. Parenthetically, some of the arguments relied upon by accused-movant refer more to evidentiary matters, the determination of which are not yet legally feasible at this juncture and should only be raised during the trial on the merits. Finally, We find no merit in the argument that more than one offense is charged in the criminal informations at bar. Precisely, the prosecution split the original information into six (6) distinct amended informations pertaining to six (6) criminal violations of Section 3 (e) of R.A. 3019, as amended. Such is but proper under the premises considering that the acts subject of the criminal cases at bar were allegedly committed on six (6) different purchase orders and there is no showing that they were committed on similar dates or singular occasion. In the instant petition, petitioner raises the following issues: 1) Whether or not the Sandiganbayan has jurisdiction over the subject criminal cases or the person of the petitioner; 2) Whether or not the respondents Ombudsman and Special Prosecutor have the authority to file the questioned amended information; 3) Whether or not the act or omission charged constitutes an offense. On the issue of jurisdiction, petitioner and the Solicitor General submit that it is the court-martial, not the Sandiganbayan, which has jurisdiction to try petitioner. Emphasizing the fundamental doctrine that the jurisdiction of a court is determined by the statute in force at the time of the commencement of the action, they claim that at the time the amended informations were filed on July 2, 1991, the controlling law on the jurisdiction over members of the Armed Forces of the Philippines is P.D. 1850, "Providing for the trial by courts-martial of members of the Integrated National Police and further defining the jurisdiction of courts-martial over members of the Armed Forces of the Philippines" (which took effect on October 4, 1982), as amended by P. D. 1952 (which took effect in September of 1984), more particularly Section 1(b) thereof provides: Sec. 1. Court Martial Jurisdiction over Integrated National Police and Members of the Armed Forces. Any provision of law to the contrary notwithstanding, (a) uniformed members of the Integrated National Police who commit any crime or offense cognizable by the civil courts shall henceforth be exclusively tried by courts-martial pursuant to and in accordance with Commonwealth Act No. 408, as amended, otherwise known as the Articles of War; (b) all persons subject to military law under Article 2 of the aforecited Articles of War who commit any crime or offense shall be exclusively tried by courts-martial or their case disposed of under the said Articles of War; Provided, that, in either of the aforementioned situations, the case shall be disposed of or tried by the proper civil or judicial authorities when court-martial jurisdiction over the offense has prescribed under Article 38 of Commonwealth Act Numbered 408, as amended, or court-martial jurisdiction over the person of the accused military or Integrated National Police personnel can no longer be exercised by virtue of their separation from the active service without jurisdiction having duly attached beforehand unless otherwise provided by law: Provided, further, that the President may, in the interest of Justice, order or direct, at any time before arraignment, that a particular case be tried by the appropriate civil court. As used herein, the term uniformed members of the Integrated National Police shall refer to police officers, policemen, firemen, and jail guards. (emphasis ours).

Since petitioner is a regular officer of the Armed Forces of the Philippines, he falls squarely under Article 2 of the Articles of War (C.A. 408, as amended) mentioned in the aforecited Section 1(b) of P.D. 1850. Article 2 reads: Art. 2: Persons subject to Military Law. The following persons are subject to these Articles and shall be understood as included in the term "any person subject to military law" or "person subject to military law; whenever used in these articles: (a) All officers, members of the Nurse Corps and soldiers belonging to the Regular Force of the Philippine Army; all reservists, from the dates of their call to active duty and while on such active duty; all trainees undergoing military instruction; and all other persons lawfully called, drafted, or ordered into, or to duty or for training in, the said service, from the dates they are required by the terms of the call, draft, or order to obey the same; . . . . Petitioner and the Solicitor General concede the subsequent passage of Republic Act No. 7055, "An Act Strengthening Civilian Supremacy over the military by returning to the civil courts the jurisdiction over certain offenses involving members of the Armed Forces of the Philippines, other persons subject to military law, and the members of the Philippine National Police, repealing for the purpose certain presidential decrees" (which took effect on July 13, 1991) which expressly repealed P.D. 1850. Section 1 of R. A. No. 7055 reads: Sec. 1. Members of the Armed Forces of the Philippines and other persons subject to military law, including members of the Citizens Armed Forces Geographical Units, who commit crimes or offenses penalized under the Revised Penal Code, other special penal law, or local government ordinances, regardless of whether or not civilians are co-accused, victims, or offended parties which may be natural or judicial persons, shall be tried by the proper civil court, except when the offense, as determined before arraignment by the civil court, is service-connected, in which case the offense shall be tried by court-martial: Provided, That the President of the Philippines may, in the interest of justice, order or direct at any time before arraignment that any such crimes or offenses be tried by the proper civil courts. As used in this Section, service-connected crimes or offenses shall be limited to those defined in Articles 54 to 70, Articles 72 to 92 and Articles 95 to 97 of Commonwealth Act No. 408, as amended. In imposing the penalty for such crimes or offenses, the court-martial may take into consideration the penalty prescribed therefor in the Revised Penal Code, other special laws, or local government ordinances. They nonetheless argue that petitioner's case falls within the exception provided for in said Section 1 of R. A. No. 7055, and, therefore, still cognizable by courts-martial, since the alleged commission of the offense for which petitioner is charged with is "service-connected ." We rule that the Sandiganbayan has no jurisdiction over petitioner, at the time of the filing of the informations, and as now prescribed by law. Republic Act No. 8249,12 the latest amendment to P. D. 160613 creating the Sandiganbayan (otherwise known as the "Sandiganbayan Law"), provides the prevailing scope of the Sandiganbayan's jurisdiction. The pertinent portions of Section 4 of the Sandiganbayan Law read: Sec. 4. Jurisdiction. The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving:

a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: (d.) Philippine army and air force colonels, naval captains, and all officers of higher rank; It can be deduced from said provisions of law that both the nature of the offense and the position occupied by the accused are conditions sine qua non before the Sandiganbayan can validly take cognizance of the case. In the instant case, while petitioner is charged with violation of Section 3(e) of R. A. No. 3019, as amended, which is an offense covered by Section 4 of the Sandiganbayan Law, his position as Lieutenant Commander (LCMDR.) of the Philippine Navy is a rank lower than "naval captains and all officer of higher rank" as prescribed under sub-paragraph (d) of Section 4. Under the Promotions System in the Armed Forces of the Philippines, the hierarchy in the position/rank of the officers of the Philippine Navy is as follows: 1. Admiral 2. Vice-Admiral 3. Rear Admiral 4. Commodore 5. Captain 6. Commander 7. Lieutenant Commander 8. Lieutenant Senior Grade 9. Lieutenant Junior Grade 10. Ensign

Thus, not falling within the "rank" requirement stated in Section 4, exclusive jurisdiction over petitioner is vested in the regular courts pursuant to the provision of Section 4 of the Sandiganbayan Law, as amended by R.A. No. 8249, which states that "In cases where none of the accused are occupying positions corresponding to Salary Grade "27" or higher, as prescribed in the said Republic Act No. 6758, or military and PNP officers mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their respective jurisdictions as provided in Batas Pambansa Blg. 129, as amended. Consequently, it is the regional trial court that has jurisdiction over the offense charged. Under Section 9 of R.A. No. 3019, as amended, the commission of any of the unlawful acts or omissions enumerated in Sections 3, 4, 5 and 6 of this Act shall be punished with imprisonment for not less than SIX YEARS AND ONE MONTH or FIFTEEN YEARS. The indictment against petitioner cannot fall within the jurisdiction of the metropolitan trial courts, municipal trial courts and municipal circuit trial courts because under Republic Act No. 7691 which amended certain provisions of Batas Pambansa Blg. 129 by expanding the jurisdiction of said inferior courts, they "exercise exclusive original jurisdiction over all offenses punishable with imprisonment not exceeding six (6) years irrespective of the amount of fine, and regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of kind, nature, value or amount thereof . . . ." This draws the case into the domain of the regional trial courts which, under Section 20 of Batas Pambansa Blg. 129, "shall exercise exclusive original jurisdiction in all criminal cases not within the exclusive jurisdiction of any court, tribunal or body, except those now falling under the exclusive and concurrent jurisdiction of the Sandiganbayan which shall hereafter be exclusively taken cognizance of by the latter." It is not correct that under R. A. No. 7055, the courts-martial retain jurisdiction over petitioner's case since the offense for which he is charged is "service-connected." The second paragraph of Section 1 of R. A. No. 7055 limits the nature of "service-connected crimes or offenses" to those defined only in

Articles 54 to 70, 72 to 92 and 95 to 97 of Commonwealth Act No. 408, as amended,14 to wit: Fraudulent enlistment, making Unlawful Enlistment, False Muster, False Returns, Desertion, Advising or Aiding Another to Desert, Entertaining a Deserter, Absence Without Leave, Disrespect towards the President, Vice-President and National Assembly, Disrespect towards Superior Officer, Mutiny or Sedition, Failure to Suppress Mutiny of Sedition, Quarrels; Frays; Disorders, Breaking an Arrest or Escaping from Confinement, Refusal to Receive and Keep Prisoners, Failure to make a Report of Prisoners Received, Releasing prisoners without proper authority, Failure to Deliver offenders to Civil Authorities, Misbehavior Before the Enemy, Subordinates Compelling Commander to Surrender, Improper Use of Countersign, Forcing a Safeguard, Neglect or Wrongful Appropriation of Captured Property, Dealing in Captured or Abandoned Property, Relieving, Corresponding with, or Aiding the Enemy, Spies, Damage/Wrongful Disposition of Military Property, Waste or Unlawful Disposition of Military Property, Drunk on Duty, Misbehavior of Sentinel, Personal Interest in Sale of Provisions, Intimidation of Persons Bringing Provisions, Good Order to be Maintained and Wrong Redressed, Provoking Speeches or Gestures, Dueling, Fraud against the Government Affecting Matters and Equipment, Conduct Unbecoming an Officer and Gentleman, and All Disorders and Neglects to the Prejudice of Good Order and Military Discipline and All Conduct of a Nature of Bring Discredit Upon the Military Services. None of these offenses relates to acts or omissions constituting a violation of Section 3 (e), R. A. No. 3019, as amended which reads: Sec. 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: xxx xxx xxx

(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. In this connection, it is the prosecutor, not the Ombudsman, who has the authority to file the corresponding information/s against petitioner in the regional trial court. The Ombudsman exercises prosecutorial powers only in cases cognizable by the Sandiganbayan.15 WHEREFORE, the Resolution of the Sandiganbayan dated June 10, 1992 in Criminal Cases Nos. 16905-16910, is hereby ANNULLED and SET ASIDE. In lieu thereof, the Sandiganbayan is ordered to dismiss Criminal Cases Nos. 16905-16910, and to inform this Court of the action taken hereon within fifteen (15) days from finality of this decision.1wphi1.nt No costs. SO ORDERED. G.R. No. L-46934 April 15, 1988 ALFREDO CUYOS y TULOR, petitioner, vs. HON. NICOLAS P. GARCIA, Presiding Judge, Municipal Court, San Fernando, Pampanga and THE PEOPLE OF THE PHILIPPINES, respondents. Petitioner Alfredo Cuyos, in this Petition for certiorari with Prayer for Preliminary Injunction seeks to set aside the Order dated 9 September 1977 issued by respondent Municipal Court Judge Nicolas P. Garcia in Criminal Case No. 77-1848 (entitled " People of the Philippines, plaintiff vs. Alfredo Cuyos y Tulor, accused") denying petitioner's Motion to Transfer said case to the then Court of First Instance of Pampanga for trial on the merits.

Petitioner was charged before the Municipal Court of San Fernando, Pampanga, with homicide with multiple serious physical injuries and damage to property, through reckless imprudence. Petitioner was driver of a cargo truck which had collided with a Volkswagen automobile in a vehicular accident which resulted in the death of one (1) person and physical injuries to four (4) other people. The Amended Complaint against petitioner read as follows: That on or about the 9th day of June 1977, at about 6:10 P.M., at the MacArthur Highway, barrio San Isidro, San Fernando, Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the said accused, being then the driver and person in charge of a truck bearing plate No. V 139 T Filipinos 1977, willfully and unlawfully drive and operate the same in a negligent, imprudent and careless manner, and without due regard to traffic laws, rules and regulations, and without taking the necessary precaution to prevent accident to person and damage to property, causing by such negligence, imprudence and carelessness, the said truck driven and operated by him bumped and hit a Volkswagen car bearing plate no. E 604 Filipinos 1977, then driven by Antonio M. Concepcion, as a result of which one of the occupants of the said car, Victoriana Miranda Concepcion died in the said accident, and the other occupants namely: Antonio Concepcion, Rhinna Lin Capili, Renee Ann Capili and Lourdes Concepcion sustained serious physical injuries, and the said car suffered damages in the amount of P18,000.00, belonging to Antonio Concepcion, to the damage and prejudice of the offended parties. Petitioner entered a plea of not guilty at his arraignment. After arraignment, respondent Judge set the case for trial on 12,14 and 16 September 1977. Before trial could commence, however, petitioner filed on 6 September 1977 a " Motion to Remand the Case to the Court of First Instance for Trial" , alleging lack of jurisdiction over the case on the part of the Municipal Court. Petitioner's argument was that the amended criminal complaint alleged that the Volkswagen car involved in the accident had suffered damages amounting to P18,000.00, and that under paragraph 3, Article 365 of the Revised Penal Code, the crime with which he was charged would carry a fine in an amount ranging from the amount of the damage to three (3) times the value of the damage alleged (i.e. 3 x P18,000.00 or P54,000.00). Petitioner urged in his Motion that because under Section 87 (e) of the Judiciary Act of 1948 as amended (Republic Act No. 296 as amended), the respondent Municipal Court of the Provincial Capital of Pampanga, had jurisdiction only over offenses punishable by a fine not exceeding P6,000.00, the case had to be transferred to the Court of First Instance. On the same date, petitioner filed an Urgent Motion to Postpone the trial of the case relying on the same grounds set out in his Motion to Transfer the Case to the Court of First Instance. After a joint hearing of the two (2) Motions filed by petitioner, the respondent Municipal judge issued an order dated 9 September 1977 denying the Motion to transfer the Case to the Court of First Instance and set the trial of the case for 5 October 1977. A verbal Motion for Reconsideration by petitioner was denied. Hence the present Petition for Certiorari, assailing the jurisdiction of the respondent court to try the criminal case against petitioner on the merits. By a Resolution dated 26 September 1977, this Court issued a Temporary Restraining Order enjoining the respondent Municipal Court from proceeding with Criminal Case No. 77-1848. The sole issue raised in this Petition is whether or not the respondent Municipal Court of San Fernando, Pampanga has jurisdiction to try the criminal case against petitioner.

The Solicitor General, in his Comment dated 27 October 1977, agreed with and adopted the position taken by petitioner that respondent Municipal Court has no jurisdiction to try Criminal Case No. 77-1848. The Court agrees with the Solicitor General. Criminal Case No. 77-1848 involves a complex crime of homicide, multiple serious physical injuries and damage to property, resulting from reckless imprudence. Under Article 48 of the Revised Penal Code, in a prosecution for a complex crime constituted by two (2) or more grave or less grave felonies, the penalty for the most serious crime is to be imposed, the same to be applied in its maximum period. In the present case, one might, as respondent Municipal Judge did, look only at the acts which constitute the offenses comprising the complex crime here involved. One is likely to do so through eyes which are culturally conditioned and so is likely to assume, as did respondent Municipal Judge, that the most serious offense of which petitioner is accused is homicide through reckless imprudence. Under paragraph 2, Article 365 of the Revised Penal Code, the penalty imposable upon petitioner, should he be found guilty of homicide through reckless imprudence, would be prision correccional in its medium and maximum periods. Art. 365. Imprudence and negligence. The provisions contained in this Article shall not be applicable: (2) When, by imprudence or negligence and with violation of the automobile law, the death of a person shall be caused, in which case the defendants shall be punished by prision correccional in its medium and maximum periods. At the time of the filing of the criminal complaint against petitioner before the Municipal Court of San Fernando, Pampanga, such Municipal Court in the capital of the Province of Pampanga had jurisdiction to impose a penalty of imprisonment not exceeding six (6) years or a fine not exceeding P6,000. 00 or both. The applicable provision was the fourth paragraph of Article 87 (c) of Republic Act No. 296 as amended which provided as follows: Municipal judges in the capitals of provinces and sub-provinces and judges of city courts shall have like jurisdiction as the Court of First Instance to try parties charged with an offense committed within their respective jurisdictions, in which the penalty provided by law does not exceed prision correccional or imprisonment for not more than six years or fine not exceeding six thousand pesos or both, and in the absence of the district judge, shall have like jurisdiction within the province as the Court of First Instance to hear applications for bail. Thus, if the basic assumption made earlier as to the relative gravity of homicide through reckless imprudence and damage to property through reckless imprudence were correct, the respondent Municipal Judge would have to be vested with jurisdiction over the criminal charges against petitioner. As a technical legal proposition, however, the relative seriousness of offenses is determined by the seriousness of the penalties attached by the law to the several offenses. It was noted earlier that the imposable penalty in case of homicide through reckless imprudence is prision correccional in its medium and maximum periods, i.e., a correctional penalty in the scale of penalties set up in Article 25 of the Revised Penal Code. Upon the other hand, the penalty for damage to property through reckless imprudence is provided for in the third paragraph of Article 365 of the Revised Penal Code which reads as follows: When the execution of the Act covered by this Article shall have only resulted in damage to the property of another, the offender shall be punished by a fine ranging from an amount

equal to the value of paid damages to three-times such value, but which shall in no case be less than P25.00. (Emphasis supplied) Under Article 26 of the same Code, a fine may be an afflictive penalty (i.e., if it exceeds P6,000.00) or a correctional penalty (i.e., if it is P200.00 or more but does not exceed P6,000.00). The offense so penalized with a fine may be a grave felony (i.e. if the imposable fine is afflictive in nature) or a less grave felony (i.e., if the imposable fine is merely correctional). 1 In the instant case, the maximum fine which may be imposed upon petitioner is P54,000.00 (3 x P18,000.00), obviously an afflictive penalty and hence, in the scheme of the Revised Penal Code, more serious than the penalty imposable for homicide through reckless imprudence. In complex crimes, it is not uncommon that one constitutive offense carries with it an afflictive penalty while the other or other constitutive offenses carry with them only a correctional or even a light penalty. Jurisdiction over the whole complex crime must logically be lodged with the trial court having jurisdiction to impose the maximum and most serious penalty imposable on an offense forming part of the complex crime. A complex crime must be prosecuted integrally, as it were, and not split into its component offenses and the latter made the subject of multiple informations possibly brought in different courts. This is the thrust of our case law on the matter. In Angeles, etc., et al, v. Jose, et al., 2 the Court had occasion to deal with a criminal information against one Domingo Mejia before the Court of First Instance of Manila, charging him with the crime of damage to property in the sum of P654.22 and with less serious physical injuries through reckless imprudence, committed, in one single act. There, the respondent Court of First Instance dismissed the criminal information upon the ground that the penalty prescribed by Article 365 of the Revised Penal Code was only arresto mayor in its minimum and medium periods which was within the exclusive jurisdiction of the Municipal Court. The prosecution then invited attention to the fact that the fine which could be imposed by the respondent court on account of the damage to property through reckless imprudence was a sum ranging from P654.22 to P1,962.66 (P654.22 x 3) which amount was beyond the jurisdiction of a Municipal Court to impose as fine. In setting aside the order of dismissal by the respondent Court of First Instance and remanding the case to the trial court further proceedings, the Supreme Court said: [The third paragraph of Article 365 of the Revised Penal Code] simply means that if there is only damage to property the amount fixed therein shall be imposed, but if there are also physical injuries there, should be an additional penalty for the latter. The information cannot be split into two; one for the physical injuries, and another for the damage to property, for both the injuries and the damage committed were caused by one single act of the defendant and constitute what may be called a complex crime of physical injuries and damage to property. It is clear that the fine fixed by law in this case is beyond the jurisdiction of the municipal court and within that of the court of first instance. 3(Emphasis supplied) Thus, in Angeles, we held that the jurisdiction of the Court to take cognizance of the case must be determined, not by the penalty for the physical injuries charged but by the fine imposable for the damage to property resulting from reckless imprudence. Damage to property through reckless imprudence need not be a lighter offense than less serious physical injuries through reckless imprudence. Because the maximum fine (P1,962.66) imposable upon the accused in the Angeles case was beyond the jurisdiction of the Municipal Court of Manila to impose, the criminal case fell within the jurisdiction of the respondent Court of First Instance of Manila. People v. Villanueva 4 followed the rule set out in Angeles. In Villanueva, the accused was charged before the Justice of Peace Court of Batangas, Batangas with the crime of serious and less serious physical injuries, with damage to property in the amount of P2,636.00, through reckless imprudence.

The Justice of Peace Court subsequently declared itself without jurisdiction to try the case and forwarded the same to the Court of First Instance. The latter court then declared itself similarly without jurisdiction over the complex crime charged in the information, upon the ground that the penalty for the graver offense of physical injuries through reckless imprudence was only arresto mayor in its, maximum and medium periods which penalty, even if applied in its maximum degree (in view of the complex nature of the crime), would remain within the jurisdiction of the Justice of Peace Court. Upon appeal by the prosecution, the Court, speaking through Mr. Justice J.B.L. Reyes, held that the Court of First Instance had jurisdiction over the complex crime there involved: We find the appeal well taken, for this case comes squarely under the rule laid down by us inAngeles, et al. v. ,rose, et al. [96 Phil. 151 (1954)],, wherein we held that. Consider that it is the court of first instance that would undoubtedly have jurisdiction if the only offense that resulted from appellant's imprudence were the damage to property in the amount of P2,636.00, it would be absurd to hold that for the graver offense of serious and less serious physical injuries combined with damage to property through reckless imprudence, jurisdiction would lie in the justice of the peace court. The presumption is against absurdity, and it is the duty of the courts to interpret the law in such a way as to avoid absurd results. Our system of apportionment of criminal jurisdictions among the various trial courts proceeds on the basic theory that crimes cognizable by the Courts of First Instance are more serious than those triable injustice of the peace or municipal courts. Moreover, we cannot discard the possibility that the prosecution may not be able to prove all the supposed offenses constituting the complex crime charge. Were we to hold that it is the justice of the Peace court that has jurisdiction in this case, if later the prosecution should fail to prove the physical injuries aspect of the case and establish only the damage to property in the amount of P2,636.00, the inferior court would find itself without jurisdiction to impose the fine for the damage to property committed, since such fine can not be less than the amount of the damage. Again, it is to avoid this further absurdity that we must hold that the jurisdiction lies in the court of first instance in this case. 5 The applicable rule on the allocation of jurisdiction between an inferior court on the one hand and the Regional Trial Court on the other, in respect of complex crimes involving reckless imprudence resulting in homicide or physical injuries and damage to property, was summarized by Mr. Justice Barrera in People v. Malabanan: 6 It is true that, following the ruling of this Court in the case of Lapuz v. Court of Appeals, G.R. No. L-6382, March 30,1954 (40 O.G. 18 supp.), in imposing the corresponding penalty, to the quasi-offense of reckless imprudence resulting in physical injuries and damage to property, Article 48 of the Revised Penal Code should be applied. However, there may be cases, as the one at bar, where the imposable penalty for the physical injuries charged would come within the jurisdiction of the municipal or justice of the peace court while the fine, for the damage to property, would fall on the Court of First Instance. As the information cannot be split into two, one for damages and another for the physical injuries,the jurisdiction of the court to take cognizance of the case must be determined not by the corresponding penalty for the physical injuries charged but by the fine imposable for the damage to property resulting from the reckless imprudence. 7 (Emphasis supplied) It remains only to point out that under B.P. Blg. 129, the law presently in effect, we would have to reach the same result: i.e., that the criminal case against petitioner falls within the jurisdiction of the Regional

Trial Court. Under Section 32 (2) of B.P. Blg. 129, Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts have: (2) Exclusive original jurisdiction over all offenses punishable with imprisonment of not exceeding four (4) years and two (2) months, or a fine of not more than four thousand pesos, or both such fine and imprisonment, regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of kind, nature, value, or amount thereof Provided, however, That in offenses involving damage to property through criminal negligence they should have exclusive original jurisdiction where the imposable fine does not exceed twenty thousand pesos. (Emphasis supplied) Since the maximum fine imposable in the present case is P54,000.00, and the maximum imprisonment imposable (for the homicide through reckless imprudence) is six (6) years, clearly, the criminal charge involved falls outside the jurisdiction of the Municipal Trial Court and consequently within the jurisdiction of the Regional Trial Court of San Fernando, Pampanga. WHEREFORE, the Order of the respondent Municipal Court of 9 September 1977 is hereby SET ASIDE as null and void and the Temporary Restraining Order issued by this Court on 26 September 1977 is hereby made PERMANENT. Because the proceedings before the respondent Municipal Court are null and void, the Provincial Fiscal of Pampanga will have to file a new information against petitioner in the Regional Trial Court, San Fernando, Pampanga. No pronouncement as to costs. SO ORDERED. G. R. No. 156747 February 23, 2005 ALLEN A. MACASAET, NICOLAS V. QUIJANO, JR., and ALFIE LORENZO, petitioners, vs. THE PEOPLE OF THE PHILIPPINES and JOSELITO TRINIDAD, respondents. Before Us is a Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court of the Decision1dated 22 March 2002 and Resolution dated 6 January 2003 of the Court of Appeals in CA-G.R. CR No. 22067 entitled, "People of the Philippines v. Alfie Lorenzo, et al." The factual antecedents are as follows: In an Information dated 10 July 1997, Alfie Lorenzo, Allen Macasaet, Nicolas Quijano, Jr., and Roger Parajes, columnist, publisher, managing editor, and editor, respectively of the newspaper "Abante" were charged before the Regional Trial Court (RTC) of Quezon City, with the crime of libel. The information, which was raffled off to Branch 93 of said court, reads: The undersigned accuses ALFIE LORENZO, ALLEN MACASAET, NICOLAS QUIJANO JR., ROGER B. PARAJES and JORDAN CASTILLO, of the crime of LIBEL, committed as follows: That on or about the 13th day of July, 1996 in Quezon City, Philippines, the said accused ALFIE LORENZO, columnist, ALLEN MACASAET, publisher, NICOLAS QUIJANO JR., managing editor, ROGER B. PARAJES, editor, respectively of "Abante" a newspaper of general circulation in the Philippines, and JORDAN CASTILLO, conspiring, confederating together and mutually helping one another, with evident intent of exposing JOSELITO MAGALLANES TRINIDAD, a.k.a. JOEY TRINIDAD a.k.a. TOTO TRINIDAD to public hatred, dishonor, discredit and contempt and ridicule, did, then and there willfully, unlawfully and feloniously and maliciously write, publish, exhibit and circulate and/or cause to be written, published, exhibited and circulated in the aforesaid newspaper, in its issue of July 13, 1996 an article which reads as follows:

"Humarap sa ilang reporters si Jordan Castillo hindi para magkaroon ng writeups kundi para ituwid lang ang ilang bagay na baluktot at binaluktot pang lalo ng isang Toto Trinidad.1a\^/phi1.net Hindi namin naging barkada si Joey Trinidad. Bah, Toto na pala siya ngayon. Anong palagay niya sa sarili niya, si Direk Toto Natividad siya? Nakikibuhat lang talaga yang taong yan sa amin sa Liberty Ave. noon. Ni hindi nga pinapansin ni Tito Alfie yan dahil nga sa amoy-pawis siya pagkatapos mag-barbell. Kami naka-shower na, si Joey punas lang nang punas sa katawan niya ng T-shirt niyang siya ring isusuot niya pagkatapos na gawing pamunas! Madalas ngang makikain sa amin yan noon. Galit na galit nga ang mayordoma naming si Manang Hilda noon dahil nagkukulang ang rasyon namin dahil dagdag pakainin nga yang si Joey. Tamang-tama nga lang sa amin ang kanin at ulam, pero sinusugod pa niya ang kaldero para magkayod ng natitirang tutong sa kaldero. Naaawa nga ako madalas diyan kaya sineshare ko na lang ang pagkain ko sa kanya. Ewan ko kung anong naisipan ng taong yan at pagsasalitaan pa niya ng masama si Tito Alfie. Hindi man lang siya tumanaw ng utang na loob na kahit konti at kahit na sandali ay naitawid ng gutom niya. Hindi ko alam kung may kunsenya pa ang gangyang klaseng tao, pero sana naman ay makunsensya ka, Pare! Madalas nga itinatago ka na nga namin ni Tito Alfie para hindi mahighblood sa iyo, ganyan pa ang gagawin mo. Napupuyat nga si Manang Hilda sa pagbabantay sa iyo at hindi makatulog ang matanda hanggat hindi ka pa umuuwi, magsasalita ka pa ng mga inimbento mo. Pati nga si Eruel ay madalas mabanas sa iyo, natatandaan mo pa ba, dahil sa kakulitan mo! Pilit mo kaming binubuyo na sabihin kay Tito Alfie na tulungan ka rin tulad ng tulong na ibinibigay ni Tito Alfie na pag-aalaga sa amin. Pero hate na hate ka nga ni Tito Alfie dahil sa masamang ugali, natatandaan mo pa ba yun? Kaya tiyak ko na imbento mo lang ang lahat ng pinagsasabi mo para makaganti ka kay Tito Alfie," ani Jordan sa mga nag-interbyu sa kanyang legitimate writers. Hindi na siguro namin kailangan pang dagdagan ang mga sinabi ng sinasabi ni Toto Trinidad na mga barkada niya at kapwa niya kuno Liberty Boys!" thereby publicly imputing a crime, vice or defect, real or imaginary or an act, omission, condition, status or circumstance and causing in view of their publication, discredit and contempt upon the person of said JOSELITO MAGALLANES TRINIDAD a.k.a. JOEY TRINIDAD a.k.a. TOTO TRINIDAD, to his damage and prejudice.2 In an Order dated 16 July 1997, Judge Apolinario D. Bruselas, Jr., presiding judge of RTC, Branch 93, Quezon City, set the arraignment of the petitioners on 27 August 1997.3 On 22 August 1997, petitioners filed before the court a quo an Urgent Motion to Suspend Arraignment and/or Defer Proceedings dated 21 August 1997 claiming that they intended to elevate the adverse Resolution of the Office of the City Prosecutor of Quezon City to the Department of Justice (DOJ) for review. Despite this motion, the scheduled arraignment of petitioners pushed through on 27 August 1997. During said proceeding, petitioners Lorenzo and Quijano, Jr., together with their co-accused Parajes and Castillo, refused to enter any plea and so the trial court ordered that a plea of not guilty be entered into the records on their behalf.4 As for petitioner Macasaet, his arraignment was rescheduled to 20 October 1997 due to his failure to attend the previously calendared arraignment. On 12 September 1997, petitioners filed a Motion to Dismiss the libel case on the ground that the trial court did not have jurisdiction over the offense charged. According to petitioners, as the information discloses that the residence of private respondent was in Marikina, the RTC of Quezon City did not have jurisdiction over the case pursuant to Article 360 of the Revised Penal Code, to wit:

The criminal and civil action for damages in cases of written defamations as provided for in this chapter, shall be filed simultaneously or separately with the Court of First Instance of the province or city where the libelous article is printed and first published or where any of the offended parties actually resides at the time of the commission of the offense5 (Emphasis supplied.) Subsequently, on 23 September 1997, the trial court received by way of registered mail, petitioners Motion for Reconsideration and to Withdraw Plea dated 3 September 1997.6 Petitioners argued therein that the trial court committed grave error when it denied the petitioners Urgent Motion to Suspend Arraignment and/or Defer Proceedings and continued with the scheduled arraignment on 27 August 1997. According to petitioners and their co-accused, by the trial judges denial of their Urgent Motion to Defer Arraignment and/or Defer Proceedings, he had effectively denied them their right to obtain relief from the Department of Justice. Moreover, banking on the case of Roberts, et al. v. Court of Appeals,7 the petitioners and their fellow accused contended that since they had already manifested their intention to file a petition for review of the Resolution of the city prosecutor of Quezon City before the DOJ, it was premature for the trial court to deny their urgent motion of 21 August 1997. Finally, petitioners and their co-accused claimed that regardless of the outcome of their petition for review before the DOJ, the withdrawal of their "not guilty" pleas is in order as they planned to move for the quashal of the information against them. In an Order dated 26 September 1997,8 Judge Bruselas, Jr., ruled that "with the filing of the Motion to Dismiss, the court considers the accused to have abandoned their Motion for Reconsideration and to Withdraw Plea and sees no further need to act on the same." In his Opposition to the Motion to Dismiss dated 23 September 1997,9 the public prosecutor argued that the RTC, Quezon City, had jurisdiction over the case. He maintained that during the time material to this case, private respondent (private complainant below) was a resident of both 28-D Matino St. corner Malumanay St., Sikatuna Village, Quezon City and Karen St., Paliparan, Sto. Nio, Marikina, Metro Manila, as shown in his Reply-Affidavit of 11 October 1996 filed during the preliminary investigation of the case. For their part, the petitioners and their co-accused countered that it was incorrect for the public prosecutor to refer to the affidavit purportedly executed by private respondent as it is "axiomatic that the resolution of a motion to quash is limited to a consideration of the information as filed with the court, and no other." Further, as both the complaint-affidavit executed by private respondent and the information filed before the court state that private respondents residence is in Marikina City, the dismissal of the case is warranted for the rule is that jurisdiction is determined solely by the allegations contained in the complaint or information.10 On 16 October 1997, petitioners and their fellow accused filed a Supplemental Reply11 attaching thereto certifications issued by Jimmy Ong and Pablito C. Antonio, barangay captains of Barangay Malaya, Quezon City and Barangay Sto. Nio, Marikina City, respectively. The pertinent portion of the barangay certification12 issued by Barangay Captain Ong states: This is to certify that this office has no record on file nor with the list of registered voters of this barangay regarding a certain person by the name of one MR. JOSELITO TRINIDAD. This further certifies that our BSDOs (have) been looking for said person seeking information regarding his whereabouts but to no avail. On the other hand, the certification13 issued by Barangay Captain Antonio, reads in part: This is to certify that JOSELITO TRINIDAD of legal age, single/married/separate/widow/widower, a resident ofKaren Street, Sto. Nio, Marikina City is a bonafide member of this barangay.

... This is being issued upon request of the above-named person for "IDENTIFICATION." During the hearing on 20 October 1997, the trial court received and marked in evidence the two barangaycertifications. Also marked for evidence were page 4 of the information stating the address of private respondent to be in Marikina City and the editorial box appearing in page 18 of Abante indicating that the tabloid maintains its editorial and business offices at Rm. 301/305, 3/F BF Condominium Bldg., Solana cor. A. Soriano Sts., Intramuros, Manila. The prosecution was then given five (5) days within which to submit its comment to the evidence submitted by the petitioners and their fellow accused. In his Rejoinder to Supplemental Reply,14 private respondent contended that the certification issued by thebarangay captain of Barangay Malaya was issued after he had already moved out of the apartment unit he was renting in Sikatuna Village, Quezon City; that owners of residential houses do not usually declare they rent out rooms to boarders in order to avoid payment of local taxes; and that there is no showing that a census was conducted among the residents of Barangay Malaya during the time he resided therein. As regards the certification issued by the barangay chairman of Sto. Nio, Marikina City, private respondent argued that it is of judicial notice that barangay and city records are not regularly updated to reflect the transfer of residence of their constituents and that a perusal of said certification reveals that the barangay captain did not personally know him (private respondent). Finally, private respondent claimed that his receipt of the copy of petitioners Appeal to the DOJ, which was sent to his alleged address in Sikatuna Village, Quezon City, proved that he did, in fact, reside at said place. On 24 November 1997, the trial court rendered an Order dismissing the case due to lack of jurisdiction.15 The court a quo noted that although the information alleged the venue of this case falls within the jurisdiction of Quezon City, the evidence submitted for its consideration indicated otherwise. First, the editorial box of Abanteclearly indicated that the purported libelous article was printed and first published in the City of Manila. In addition, the trial court relied on the following matters to support its conclusion that, indeed, jurisdiction was improperly laid in this case: a) on page 4 of the information, the address of private respondent appeared to be the one in Marikina City although right below it was a handwritten notation stating "131 Sct. Lozano St., Barangay Sacred Heart, QC"; b) the two barangay certifications submitted by the petitioners; and c) the Memorandum for Preliminary Investigation and Affidavit-Complaint attached to the information wherein the given address of private respondent was Marikina City. On 03 December 1997, private respondent filed a motion for reconsideration16 insisting that at the time the alleged libelous article was published, he was actually residing in Quezon City. According to him, he mistakenly stated that he was a resident of Marikina City at the time of publication of the claimed defamatory article because he understood the term "address" to mean the place where he originally came from. Nevertheless, the error was rectified by his supplemental affidavit which indicated Quezon City as his actual residence at the time of publication of the 13 July 1996 issue of Abante. On 22 January 1998, private respondent filed a supplemental motion for reconsideration to which he attached an affidavit executed by a certain Cristina B. Del Rosario, allegedly the owner of the house and lot in Sikatuna Village, Quezon City, where private respondent supposedly lived from July 1996 until May 1997. She also stated in her affidavit that she was not aware of any inquiry conducted by the barangay officials of Barangay Malaya regarding the residency of private respondent in their locality. Through an Order dated 12 February 1998, the trial court denied private respondents motion for reconsideration, ruling thus:

[Del Rosarios] affidavit appears to have been executed only on 19 January 1998 to which fact the court can only chuckle and observe that evidently said affidavit is in the nature of a curative evidence, the weight and sufficiency of which is highly suspect.17 Undaunted, the public and the private prosecutors filed a notice of appeal before the court a quo.18 In the Decision now assailed before us, the Court of Appeals reversed and set aside the trial courts conclusion and ordered the remand of the case to the court a quo for further proceedings. The dispositive portion of the appellate courts decision reads: WHEREFORE, in view of the foregoing, the Order dated November 24, 1997 of the Regional Trial Court, Branch 93, Quezon City, in Criminal Case No. Q-97-71903, dismissing the case filed against herein accused-appellees on the ground of lack of jurisdiction, is hereby REVERSED and SET ASIDE, and a new one entered remanding the case to the court a quo for further proceedings.19 The Court of Appeals held that jurisprudentially, it is settled that the "residence of a person must be his personal, actual or physical habitation or his actual residence or abode" and for the purpose of determining venue, actual residence is a persons place of abode and not necessarily his legal residence or domicile.20 In this case, the defect appearing on the original complaint wherein the residence of private respondent was indicated to be Marikina City was subsequently cured by his supplemental-affidavit submitted during the preliminary investigation of the case. Moreover, as the amendment was made during the preliminary investigation phase of this case, the same could be done as a matter of right pursuant to the Revised Rules of Court.21 As for the barangay certifications issued by the barangay chairmen of Barangay Malaya and Barangay Sto. Nio, the Court of Appeals ruled that they had no probative value ratiocinating in the following manner: . . . With respect to the requirement of residence in the place where one is to vote, residence can mean either domicile or temporary residence (Bernas, The 1987 Constitution A Primer, 3rd Ed., p. 209). Therefore, one who is a resident of Quezon City can be a voter of Marikina if the latter is his domicile. Conversely, a person domiciled in Marikina can vote in Quezon City if he resides in the latter. It is just a matter of choice on the part of the voter. Thus, logic does not support the supposition that one who is not a registered voter of a place is also not a resident theref. Furthermore, the right to vote has the corollary right of not exercising it. Therefore, one need not even be a registered voter at all. The same principle applies to the certification issued by the barangay in Marikina.22 The appellate court likewise gave weight to the affidavit executed by Del Rosario and observed that petitioners failed to controvert the same. The petitioners thereafter filed a motion for reconsideration which was denied by the Court of Appeals in a Resolution promulgated on 6 January 2003.23 Hence, this petition raising the following issues: I THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN RULING THAT THE REGIONAL TRIAL COURT OF QUEZON CITY HAS TERRITORIAL JURISDICTION OVER THE CRIME CHARGED. II

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN ADMITTING THE AFFIDAVIT OF CRISTINA B. DEL ROSARIO. III THE COURT OF APPEALS ERRED IN SUSTAINING RESPONDENT TRINIDADS PERSONALITY TO APPEAL A CRIMINAL CASE.24 Petitioners insist that the evidence presented before the trial court irrefutably established the fact that private respondent was not a resident of Quezon City at the time the alleged libelous publication saw print. According to them, the information dated 10 July 1997 filed before the RTC of Quezon City indicated private respondents address to be in Karen St., Paliparan, Sto. Nio, Marikina City. Further supporting this claim were the affidavit-complaint25 and the memorandum for preliminary investigation26 where references were explicitly made to said address. Thus, petitioners are of the view that the Court of Appeals erred in relying on the supplemental affidavit executed by private respondent claiming that its execution amounted to nothing more than a mere afterthought.1awphi1.nt In addition, petitioners argue that the appellate court erred when it took into account the affidavit executed by Del Rosario. They insist that its belated submission before the trial court and the prosecutions failure to present the affiant to testify as regards the veracity of her statements undermined the evidentiary value of her affidavit. More, as the affidavit was not formally offered as evidence, it was only proper that the trial court disregarded the same in dismissing the case. Finally, petitioners contend that private respondent did not have the requisite personality to appeal from the decision of the trial court as it is only the Office of the Solicitor General (OSG) which is authorized by law to institute appeal of criminal cases. Thus, the Court of Appeals made a mistake in holding that While it is true that only the OSG can file an appeal representing the government in a criminal proceeding, the private complainant nevertheless may appeal the civil aspect of the criminal case. The case at bar was dismissed due to the alleged improper laying of venue resulting in the alleged lack of jurisdiction of the trial court and not based on the merits of the case. It cannot therefore be argued that private complainants appeal pertains to the merits of the criminal case as what happened in accusedappellees cited case in the motion to strike, VicentePalu-ay vs. Court of Appeals(GR No. 112995, July 30, 1998). Needless to say, the private complainant has an interest in the civil aspect of the dismissed criminal case which he had the right to protect. In the interest of justice and fair play, therefore, the Brief filed by private complainant in the present case should be treated as pertaining only to the civil aspect of the case.27 In his Comment/Opposition dated 25 April 2003,28 private respondent reiterated his position that the RTC of Quezon City had jurisdiction over this libel case. According to him, the affidavit executed by Del Rosario, the alleged owner of the house he leased in Sikatuna Village, Quezon City, established, beyond doubt, that he resided in said place during the time the claimed defamatory article appeared on the pages of Abante. In addition, he draws attention to the fact that petitioners and their co-accused furnished him a copy of the petition for review, filed before the DOJ, at the aforementioned address in Quezon City. Anent the affidavit of Del Rosario, private respondent maintains that the prosecution exerted efforts to present the affiant before the trial court. Unfortunately, Del Rosario was out of town when she was supposed to be presented and so the public and the private prosecutors decided to submit for resolution their motion for reconsideration sans the affiants testimony. Citing the case of Joseph Helmuth, Jr. v. People of the Philippines, et al.,29 private respondent avers that this Court had previously admitted the affidavits of witnesses who were not presented during the trial phase of a case.

As regards the petitioners contention that he (private respondent) did not have the personality to bring this case to the appellate level, private respondent contends that the proper party to file the Notice of Appeal before the trial court is the public prosecutor as what happened in this case. On its part, the OSG filed its Comment dated 07 July 200330 wherein it prayed for the dismissal of this petition based on the following: First, as the petition is concerned with the determination of the residence of private respondent at the time of the publication of the alleged libelous article, Rule 45 should be unavailing to the petitioners because this remedy only deals with questions of law. Second, venue was properly laid in this case as private respondents residency in Quezon City during the time material to this case was sufficiently established. The OSG claims that the errors appearing in the memorandum for preliminary investigation and in the affidavit complaint with regard to private respondents residence were corrected through the supplemental affidavit private respondent executed during the preliminary investigation before the Quezon City prosecutors office. Third, the OSG takes the view that the public prosecutor was the proper party to file the notice of appeal before the trial court since its (OSGs) office is only "authorized to bring or defend actions on appeal on behalf of the People or the Republic of the Philippines once the case is brought before this Honorable Court of the Court of Appeals. We find merit in the petition and therefore grant the same. Jurisdiction has been defined as "the power conferred by law upon a judge or court to try a case the cognizance of which belongs to them exclusively"31 and it constitutes the basic foundation of judicial proceedings.32 The term derives its origin from two Latin words "jus" meaning law and the other, "dicere" meaning to declare.33 The term has also been variably explained to be "the power of a court to hear and determine a cause of action presented to it, the power of a court to adjudicate the kind of case before it, the power of a court to adjudicate a case when the proper parties are before it, and the power of a court to make the particular decision it is asked to render."34 In criminal actions, it is a fundamental rule that venue is jurisdictional.l^vvphi1.net Thus, the place where the crime was committed determines not only the venue of the action but is an essential element of jurisdiction.35 In the case ofUy v. Court of Appeals and People of the Philippines,36 this Court had the occasion to expound on this principle, thus: It is a fundamental rule that for jurisdiction to be acquired by courts in criminal cases the offense should have been committed or any one of its essential ingredients took place within the territorial jurisdiction of the court. Territorial jurisdiction in criminal cases is the territory where the court has jurisdiction to take cognizance or to try the offense allegedly committed therein by the accused. Thus, it cannot take jurisdiction over a person charged with an offense allegedly committed outside of that limited territory. Furthermore, the jurisdiction of a court over the criminal case is determined by the allegations in the complaint or information. And once it is so shown, the court may validly take cognizance of the case. However, if the evidence adduced during the trial show that the offense was committed somewhere else, the court should dismiss the action for want of jurisdiction.37 The law, however, is more particular in libel cases. The possible venues for the institution of the criminal and the civil aspects of said case are concisely outlined in Article 360 of the Revised Penal Code, as amended by Republic Act No. 4363. It provides: Art. 360. Persons responsible. - . . . The criminal action and civil action for damages in cases of written defamations as provided for in this chapter, shall be filed simultaneously or separately with the Court of First Instance of the province or city

where the libelous article is printed and first published or where any of the offended parties actually resides at the time of the commission of the offense: Provided, however, That where one of the offended parties is a public officer whose office is in the City of Manila at the time of the commission of the offense, the action shall be filed in the Court of First Instance of the City of Manila or of the city or province where the libelous article is printed and first published, and in case such public officer does not hold office in the City of Manila, the action shall be filed in the Court of First Instance of the province or city where he held office at the time of the commission of the offense or where the libelous article is printed and first published and in case one of the offended parties is a private individual, the action shall be filed in the Court of First Instance of the province or city where he actually resides at the time of the commission of the offense or where the libelous matter is printed and first published. In Agbayani v. Sayo,38 we summarized the foregoing rule in the following manner: 1. Whether the offended party is a public official or a private person, the criminal action may be filed in the Court of First Instance of the province or city where the libelous article is printed and first published. 2. If the offended party is a private individual, the criminal action may also be filed in the Court of First Instance of the province where he actually resided at the time of the commission of the offense. 3. If the offended party is a public officer whose office is in Manila at the time of the commission of the offense, the action may be filed in the Court of First Instance of Manila. 4. If the offended party is a public officer holding office outside of Manila, the action may be filed in the Court of First Instance of the province or city where he held office at the time of the commission of the offense.39 In the case at bar, private respondent was a private citizen at the time of the publication of the alleged libelous article, hence, he could only file his libel suit in the City of Manila where Abante was first published or in the province or city where he actually resided at the time the purported libelous article was printed. A perusal, however, of the information involved in this case easily reveals that the allegations contained therein are utterly insufficient to vest jurisdiction on the RTC of Quezon City. Other than perfunctorily stating "Quezon City" at the beginning of the information, the assistant city prosecutor who prepared the information did not bother to indicate whether the jurisdiction of RTC Quezon City was invoked either because Abante was printed in that place or private respondent was a resident of said city at the time the claimed libelous article came out. As these matters deal with the fundamental issue of the courts jurisdiction, Article 360 of the Revised Penal Code, as amended, mandates that either one of these statements must be alleged in the information itself and the absence of both from the very face of the information renders the latter fatally defective.l^vvphi1.net Sadly for private respondent, the information filed before the trial court falls way short of this requirement. The assistant city prosecutors failure to properly lay the basis for invoking the jurisdiction of the RTC, Quezon City, effectively denied said court of the power to take cognizance of this case.1a\^/phi1.net For the guidance, therefore, of both the bench and the bar, this Court finds it appropriate to reiterate our earlier pronouncement in the case of Agbayani, to wit: In order to obviate controversies as to the venue of the criminal action for written defamation, the complaint or information should contain allegations as to whether, at the time the offense was committed, the offended party was a public officer or a private individual and where he was actually residing at that time. Whenever possible, the place where the written defamation was printed and first

published should likewise be alleged. That allegation would be a sine qua non if the circumstance as to where the libel was printed and first published is used as the basis of the venue of the action.40 Anent private respondent and OSGs contention that the supplemental affidavit submitted during the preliminary investigation of this libel suit cured the defect of the information, we find the same to be without merit. It is jurisprudentially settled that jurisdiction of a court over a criminal case is determined by the allegations of the complaint or information.41 In resolving a motion to dismiss based on lack of jurisdiction, the general rule is that the facts contained in the complaint or information should be taken as they are.42 The exception to this rule is where the Rules of Court allow the investigation of facts alleged in a motion to quash43 such as when the ground invoked is the extinction of criminal liability, prescriptions, double jeopardy, or insanity of the accused.44 In these instances, it is incumbent upon the trial court to conduct a preliminary trial to determine the merit of the motion to dismiss. As the present case obviously does not fall within any of the recognized exceptions, the trial court correctly dismissed this action. In the assailed decision, the Court of Appeals likewise put premium on the affidavit executed by Del Rosario which was attached to private respondents supplemental motion for reconsideration. According to the appellate court, said document "supports private (respondents) claim that indeed, he was a resident of Quezon City at the time the alleged libelous article was published."45 The pertinent provision of the Rules of Court, under Rule 10, Section 6 thereof, states: Sec. 6. Supplemental Pleadings. - Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. The adverse party may plead thereto within ten (10) days from notice of the order admitting the supplemental pleading. By the very nature of a supplemental pleading, it only seeks to reinforce and augment the allegations contained in the principal pleading. It does not serve to supplant that which it merely supplements; rather, it ought to co-exist with the latter. Further, the admission of a supplemental pleading is not something that parties may impose upon the court for we have consistently held that its admittance is something which is addressed to the discretion of the court.46 Explicit in the aforequoted provision of the Rules of Court is the requirement that the contents of a supplemental pleading should deal with transactions, occurrences or events which took place after the date of the pleading it seeks to supplement. A reading of the supplemental motion for reconsideration filed by private respondent discloses no additional or new matters which transpired after he filed his original motion for reconsideration. The fact that he attached thereto the affidavit of his alleged lessor fails to persuade us into giving to said supplemental motion the same evidentiary value as did the Court of Appeals. For one, private respondent did not even bother to explain the reason behind the belated submission of Del Rosarios affidavit nor did he claim that he exerted earnest efforts to file it much earlier in the proceedings.l^vvphi1.net He must, therefore, bear the consequences of his own lethargy. Finally, we come to the issue of whether the private prosecutor and the public prosecutor had the personality to file the notice of appeal before the trial court. Petitioners insist that the OSG should have been the one to file said notice in its capacity as the "sole representative of the [g]overnment in the Court of Appeals in criminal cases."47 Under Presidential Decree No. 478, among the specific powers and functions of the OSG was to "represent the government in the Supreme Court and the Court of Appeals in all criminal proceedings." This provision has been carried over to the Revised Administrative Code particularly in Book IV, Title III, Chapter 12 thereof. Without doubt, the OSG is the appellate counsel of the People of the Philippines in

all criminal cases. In such capacity, it only takes over a criminal case after the same has reached the appellate courts.48 The next question should then be: when does the jurisdiction of the trial court end and that of the Court of Appeals commence? Happily, the Revised Rules of Court is clear on this point. Rule 41, Section 9 of the Rules states that "(i)n appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties."49 When a party files a notice of appeal, the trial courts jurisdiction over the case does not cease as a matter of course; its only effect is that the appeal is deemed perfected as to him.50 As explained by our former colleague, Justice Florenz Regalado . . . [I]n the meantime, the trial court still retains jurisdiction over the case. However, where all the parties have either thus perfected their appeals, by filing their notices of appeal in due time and the period to file such notice of appeal has lapsed for those who did not do so, then the trial court loses jurisdiction over the case as of the filing of the last notice of appeal or the expiration of the period to do so for all the parties.51 Applied to the case at bar, we deem it proper that the notice of appeal was filed by the private and the public prosecutors before the trial court. The Rules cannot be any clearer: until the filing of the last notice of appeal and the expiration of the period to perfect an appeal by all the parties, the lower court still has jurisdiction over the case. It is only after the occurrence of these two incidents when the jurisdiction of the Court of Appeals begins and at which time the OSG is supposed to take charge of the case on behalf of the government. WHEREFORE, the petition is GRANTED. The Decision dated 22 March 2002 and Resolution dated 6 January 2003 of the Court of Appeals are hereby REVERSED and SET ASIDE and the 24 November 1997 Decision of the Regional Trial Court, Branch 93, Quezon City, dismissing Criminal Case No. Q-9771903 is hereby REINSTATED. No costs. SO ORDERED. G.R. No. 117363 December 17, 1999 MILA G. PANGILINAN, petitioner, vs. HON. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

Is the conviction of the accused-appellant by the Regional Trial Court under an information falling within the jurisdiction of the Municipal Trial Court valid? On 20 September 1990, appellant Mila G. Pangilinan was charged with the crime of Estafa in an information 1which reads: The undersigned Asst. Prov'l. Prosecutor accuses Mrs. Mila Pangilinan of the Crime of Estafa, committed as follows: That on or about the 15th day of June, 1984 in the municipality of Tanay, Rizal, Philippines and within the jurisdiction of this Honorable Court the above-named accused, by means of false pretenses and misrepresentation introduced and misrepresented herself that she was instructed by Mr. Rodolfo Elnar, father of Miss Luzviminda SJ Elnar, a girl 15 years of age, to get one (1) stereo component, marked Fisher PH 430k valued at more or less P17,000.00, one (1) headphone, one (1) electrical jack and two (2) record tapes worth

P450.00, or with total amount of P17,450.00 from their house and falsely alleging that said father of the minor further instructed her that the stereo component be tested in a turntable somewhere in EDSA, Mandaluyong, Metro Manila did then and there willfully, unlawfully and feloniously and taking advantage of the inexperience and feelings of the said minor, induce the said minor Luzviminda SJ Elnar to give her said stereo component and electrical parts belonging to spouses Rolando Elnar and Soledad SJ Elnar when in truth and in fact said accused was not authorized by Mr. Rolando Elnar to have said stereo components be tested and once said accused had in her possession the said articles, she took them away to the damage and prejudice of such Mr. and Mrs. Rolando Elnar in the aforesaid amount of P17,450.00. CONTRARY TO LAW. On 12 March 1991, appellant was arraigned before the Regional Trial Court of Morong, Rizal, where she entered a plea of "not guilty." After due trial, said court in a Decision dated 7 October 1991 2 convicted the appellant of the crime of ESTAFA under Article 315 of the Revised Penal Code. This unfavorable verdict was appealed to the Court of Appeals which, on 13 August 1993, affirmed the conviction but modified the sentence, to wit: . . . and that there being no proof of mitigating and or aggravating circumstances which attended the commission of the offense, the appellant should suffer the penalty of four (4) months of arresto mayor and a fine of P17,450.00 with subsidiary imprisonment in case of insolvency. 3 A Motion for Reconsideration was denied by the respondent court on 11 November 1993. 4 On 3 December 1993, appellant filed a Petition for New Trial in the Court of Appeals 5 which was denied by said Court on 10 January 1994. 6 Hence, the present petition for review on certiorari under Rule 45 of the Rules of Court premised on the following grounds: I THAT THE DECISION OF THE TRIAL COURT CONVICTING HEREIN ACCUSED IS NULL AND VOID FOR LACK OF JURISDICTION OVER THE CRIME CHARGED. BEING NULL AND VOID, THE DECISION OF THE COURT OF APPEALS ON APPEAL HEREIN CANNOT VALIDATE IT; II IN THE ALTERNATIVE, ASSUMING WITHOUT ADMITTING THAT THE TRIAL COURT HAD JURISDICTION OVER THE CASE, THE GUILT OF THE PETITIONER HAS NOT BEEN PROVEN BEYOND REASONABLE DOUBT. 7 The Court has carefully reviewed the records of this case and finds the appeal to be impressed with merit. The information uses the generic term Estafa as the classification of the crime appellant is charged with without citing the specific article of the Revised Penal Code violated. The trial court, however, presumed that the petitioner was charged with the crime of estafa falling under Article 315 of the RPC. This is evidenced by the trial court's assumption of jurisdiction over the case and its subsequent conviction of the appellant for this form of estafa, 8 to wit:

WHEREFORE, the court finds the accused MILA PANGILINAN, GUILTY of the Crime of Estafa, in violation of Article 315 of the Revised Penal Code, as amended and hereby sentences her to suffer imprisonment of One (1) year, Eight (8) months and Twenty (20) days of Prision Correcional, as minimum to Five (5) years, Five (5) months and Eleven (11) days of Prision Correcional as maximum, plus costs. Further to pay the complainant Soledad Elnar the amount of P17,000.00 the value of the unrecovered one stereo component. SO ORDERED. In order to find estafa with abuse of confidence under subdivision No. 1, par. (b) of Art. 315, the following elements must be present: 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 a demand made by the offended party to the offender.9 A circumspect examination of the allegations in the information will disclose that the information under which the appellant is charged with does not contain all the elements of estafa falling under Article 315 (b). There was a failure to allege that demand was made upon the appellant by the offended party. Thus, as correctly observed by the Court of Appeals in the questioned decision, to which the Solicitor General agrees, appellant was charged under an information alleging an offense falling under the blanket provision of paragraph 1 (a) of Article 318 of the Revised Penal Code, which treat "Other Deceits." 10 As prescribed by law, a violation of Article 318 of the Revised Penal Code is punishable by imprisonment for a period ranging from one (1) month and one (1) day to six (6) months. At the time of the filing of the information in this case, the law in force was Batas Pambansa Blg. 129. Under the express provision of Section 32 of B.P. 129, the offense of which the petitioner was charged with falls within the exclusive original jurisdiction of the Municipal Trial Court: Sec. 32. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in criminal cases. xxx xxx xxx (2) Exclusive original jurisdiction over all offenses punishable with imprisonment of not exceeding four years and two months, or a fine of not more than four thousand pesos, or both such fine and imprisonment regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of kind, nature, value, or amount thereof: Provided, however, That in offenses involving damage to property through criminal negligence they shall have exclusive jurisdiction where the imposable fine does not exceed twenty thousand pesos.

Settled is the rule that it is the averments in the information which characterize the crime to be prosecuted and the court before which it must be tried. 11 Without a doubt, it was the Municipal Trial Court who had jurisdiction over the case and not the Regional Trial Court. However, the Office of the Solicitor General contends that the appellant is barred from raising the issue of jurisdiction, estoppel having already set in. This contention is without merit. In our legal system, the question of jurisdiction may be raised at any stage of the proceedings. The Office of the Solicitor General relies on this Court's ruling in the landmark case of Tijam vs.Sibanghanoy 12 where the Court stated that: It has been held that a party cannot invoke the jurisdiction of a court to secure affirmative relief against his opponent and, after obtaining or failing to obtain such relief, repudiate or question that same jurisdiction. In the case just cited, by way of explaining the rule, it was further said that the question whether the court had jurisdiction either of the subject-matter of the action or of the parties was not important in such cases because the party is barred from such conduct not because the judgment or order of the court is valid and conclusive as an adjudication, but for the reason that such a practice can not be tolerated obviously for reasons of public policy. The Office of the Solicitor General's reliance on the said ruling is misplaced. The doctrine laid down in the Tijam case is an exception to and not the general rule. Estoppel attached to the party assailing the jurisdiction of the court as it was the same party who sought recourse in the said forum. In the case at bar, appellant cannot in anyway be said to have invoked the jurisdiction of the trial court. Thus, we apply the general rule that jurisdidion is vested by law and cannot be conferred or waived by the parties. Even on appeal and even if the reviewing parties did not raise the issue of jurisdiction, the reviewing court is not precluded from ruling that the lower court had no jurisdiction over the case: The operation of the principle of estoppel on the question of jurisdiction seemingly depends upon whether the lower court had jurisdiction or not. If it had no jurisdiction, but the case was tried and decided upon the theory it had jurisdiction, the parties are not barred, on appeal, from assailing such jurisdiction, for the same "must exist as a matter of law, and may not be conferred by consent of the parties or by estoppel." 13 Estoppel in questioning the jurisdiction of the court is only brought to bear when not to do so will subvert the ends of justice. Jurisdiction of courts is the blueprint of our judicial system without which the road to justice would be a confusing maze. Whenever the question of jurisdiction is put to front, courts should not lightly brush aside errors in jurisdiction especially when it is the liberty of an individual which is at stake: Where life or liberty is affected by its proceedings, the court must keep strictly within the limits of the law authorizing it to take jurisdiction and to try the case and to render judgment. It cannot pass beyond those limits in any essential requirement in either stage of these proceedings; and its authority in those particulars is not to be enlarged by any mere inferences from the law or doubtful construction of its terms. There has been a great deal said and written, in may cases with embarrassing looseness of expression, as to the jurisdiction of the courts in criminal cases. From a somewhat extended examination of the authorities we will venture to state some rule applicable to all of them, by which the jurisdiction as to any particular judgment of the courts in such cases may be determined. It is plain that such court has jurisdiction to render a particular judgment only when the

offense charged is within the class of offenses placed by the law under its jurisdiction; and when, in taking custody of the accused, and its modes of procedure to the determination of the question of his guilt or innocence, and in rendering judgment, the court keeps within the limitations prescribed by the law, customary or statutory. When the court goes out of these limitations its action, to the extent of such excess, is void. 14 The Office of the Solicitor General makes a final attempt to bolster its position by citing Section 4, Rule 120 of the Rules of Court which provides: Sec. 4. Judgment in case of variance between allegation and proof. When there is a variance between the offense charged in complaint or information, and that proved or established by the evidence, and the offense as charge is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved included in that which is charged or of the offense charge included in that which is proved. According to the OSG, since the offense proved (Article 318 of the Revised Penal Code) is necessarily included in the offense charged, then the decision of the respondent court modifying the court of origin's judgment is perfectly valid and the petitioner's claim that the trial court had no jurisdiction must necessarily fail. 15 This argument is specious. Aforementioned section applies exclusively to cases where the offense as charged is included in or necessarily includes the offense proved. It presupposes that the court rendering judgment has jurisdiction over the case based on the allegations in the information. However, in the case at bar, from the onset of the criminal proceedings, the lower court had no jurisdiction to hear and decide the case. Having arrived at the conclusion that the Regional Trial Court did not have jurisdiction to try the case against the appellant, it is no longer necessary to consider the other issues raised as the decision of the Regional Trial Court is null and void. WHEREFORE, the instant petition is GRANTED. The challenged decision of respondent Court of Appeals in CA-GR CR No. 12320 is set aside as the Regional Trial Court, whose decision was affirmed therein, had no jurisdiction over Criminal Case No. 0867-M. SO ORDERED. G.R. No. L-20687 April 30, 1966 MAXIMINO VALDEPEAS, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. Appeal by petitioner Maximino Valdepeas from a decision of the Court of Appeals, affirming that of the Court of First Instance of Cagayan, convicting him of the crime of abduction with consent, and sentencing him to an indeterminate penalty ranging from three (3) months and twenty-five (25) days of arresto mayor to one (1) year, eight (8) months and twenty-one (21) days of prision correccional, with the accessory penalties prescribed by law, to indemnify Ester Ulsano in the sum of P1,000, with subsidiary imprisonment in case of insolvency, and to pay the costs. The only question raised by petitioner is whether "the Court of Appeals erred in not reversing the decision of the trial court, dated June 30, 1960, for lack of jurisdiction over the person of the accused and the subject matter of the action for the offense of abduction with consent".

The pertinent facts are: On January 25, 1956, Ester Ulsano, assisted by her mother, Consuelo Ulsano, filed with the Justice of the Peace Court of Piat, Cagayan, a criminal complaint,1 duly subscribed and sworn to by both, charging petitioner Maximino Valdepeas with forcible abduction with rape of Ester Ulsano. After due preliminary investigation, the second stage of which was waived by Valdepeas, the justice of the peace of Piat found that there was probable cause and forwarded the complaint to the court of first instance of Cagayan2 in which the corresponding information for forcible abduction with rape3 was filed.4 In due course, said court of first instance rendered judgment5 finding petitioner guilty as charged and sentencing him accordingly.6 On appeal taken by petitioner, the Court of Appeals7 modified the decision of the court of first instance, convicted him of abduction with consent and meted out to him the penalty set forth in the opening paragraph of this decision.1wph1.t A motion for reconsideration and new trial having been filed by petitioner contesting the finding, made by the Court of Appeals, to the effect that complainant was below 18 years of age at the time of the occurrence, said Court 8granted the motion, set aside its aforementioned decision and remanded the case to the court a quo for the reception of additional evidence on said issue. After a retrial, the court of first instance rendered another decision,9 reiterating said finding of the Court of Appeals, as well as its judgment 10 of conviction for abduction with consent and the penalty imposed therein. Petitioner appealed again to the Court of Appeals 11 which 12affirmed that of the court of first instance 13 with costs against the petitioner. Again petitioner filed 14 a motion for reconsideration based, for the first time, upon the ground that "the lower court had no jurisdiction over the person of appellant and over the subject matter of the action, with respect to the offense of abduction with consent." Upon denial of the motion, 15 petitioner interposed the present appeal by certiorari. Petitioner's theory is that no complaint for abduction with consent has been filed by either Ester Ulsano or her mother, Consuelo Ulsano, and that, accordingly, the lower court acquired no jurisdiction over his person or over the crime of abduction with consent and had, therefore, no authority to convict him of said crime. We find no merit in this pretense. Jurisdiction over the person of an accused is acquired upon either his apprehension, with or without warrant, or his submission to the jurisdiction of the court. 16 In the case at bar, it is not claimed that petitioner had not been apprehended or had not submitted himself to the jurisdiction of the court. Indeed, although brought before the bar of justice as early as January 25, 1956, first, before the then justice of the peace court of Piat, then before the court of first instance of Cagayan, later before the Court of Appeals, thereafter back before said court of first instance, and then, again, before the Court of Appeals, never, within the period of six (6) years that had transpired until the Court of Appeals, rendered its last decision, 17 had he questioned the judicial authority of any of these three (3) courts over his person. He is deemed, therefore, to have waived whatever objection he might have had to the jurisdiction over his person, and, hence, to have submitted himself to the Court's jurisdiction. What is more, his behaviour and every single one of the steps taken by him before said courts particularly the motions therein filed by him implied, not merely a submission to the jurisdiction thereof, but, also, that he urged the courts to exercise the authority thereof over his person. Upon the other hand, it is well settled that jurisdiction over the subject matter of an action in this lease the crime of abduction with consent is and may be conferred only by law; 18 that jurisdiction over a given crime, not vested by law upon a particular court, may not be conferred thereto by the parties involve in the offense; and that, under an information for forcible abduction, the accused may be convicted of abduction with consent. 19 It is true that, pursuant to the third paragraph of Article 344 of the Revised Penal Code, . . . the offenses of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents, or guardian,

nor, in any case, if the offender has been expressly pardoned by the above-named persons, as the case may be. The provision does not determine, however, the jurisdiction of our courts over the offenses therein enumerated. It could not affect said jurisdiction, because the same is governed by the Judiciary Act of 1948, not by the Revised Penal Code, which deals primarily with the definition of crimes and the factors pertinent to the punishment of the culprits. The complaint required in said Article 344 is merely a condition precedent to the exercise by the proper authorities of the power to prosecute the guilty parties. And such condition has been imposed "out of consideration for the offended woman and her family who might prefer to suffer the outrage in silence rather than go through with the scandal of a public trial." 20 In the case at bar, the offended woman and her mother have negated such preference by filing the complaint adverted to above and going through the trials and tribulations concomitant with the proceedings in this case, before several courts, for the last ten (10) years. Petitioner says that the complaint was for forcible abduction, not abduction with consent; but, as already adverted to, the latter is included in the former. Referring particularly to the spirit of said provision of Article 344 of the Revised Penal Code, we believe that the assent of Ester Ulsano and her mother to undergo the scandal of a public trial for forcible abduction necessarily connotes, also, their willingness to face the scandal attendant to a public trial for abduction with consent. The gist of petitioner's pretense is that there are some elements of the latter which are not included in the former, and, not alleged, according to him, in the complaint filed herein, 21 namely: 1) that the offended party is a virgin; and 2) that she is over 12 and under 18 years of age. The second element is clearly set forth in said complaint, which states that Ester Ulsano is "a minor ... 17 years of age ...", and, hence, over 12 and below 18 years of age. As regards the first element, it is settled that the virginity mentioned in Article 343 of the Revised Penal Code, 22as an essential ingredient of the crime of abduction with consent, should not be understood in its material sense and does not exclude the idea of abduction of a virtuous woman of good reputation, 23 because the essence of the offense "is not the wrong done to the woman, but the outrage to the family and the alarm produced in it by the disappearance of one of its members." 24 The complaint in the case at bar 25 alleges, not only that Ester Ulsano is a minor 17 years of age, but also that petitioner "willfully, unlawfully and feloniously" took her "by force and violence ... against her will and taking advantage of the absence of her mother" from their dwelling and carried "her to a secluded spot to gain carnal intercourse with the offended party against her will, using force, intimidation and violence, with lewd designs." This allegation implies that Ester is a minor living under patria protestas, and, hence, single, thus leading to the presumption that she is a virgin, 26 apart from being virtuous and having a good reputation, 27 for, as Chief Justice Moran has aptly put it, the presumption of innocence includes, also, that of morality and decency, and, as a consequence, of chastity. 28 Wherefore, the decision appealed from is hereby affirmed, with costs against the petitioner Maximino Valdepeas. It is so ordered. G.R. No. L-37933 April 15, 1988 FISCAL CELSO M. GIMENEZ and FEDERICO B. MERCADO, petitioners, vs. HON. RAMON E. NAZARENO, Presiding Judge, Court of First Instance of Cebu and TEODORO DE LA VEGA, JR., respondents. Two basic issues are raised for Our resolution in this petition for certiorari and mandamus. The first is whether or not a court loses jurisdiction over an accused who after being arraigned, escapes from the custody of the law. The other issue is whether or not under Section 19, Article IV of the 1973

Constitution, an accused who has been duly tried in absentia retains his right to present evidence on his own behalf and to confront and cross-examine witnesses who testified against him. The following facts are not in dispute: On August 3, 1973, Samson Suan, Alex Potot, Rogelio Mula, Fernando Cargando, Rogelio Baguio and the herein private respondent Teodoro de la Vega Jr., were charged with the crime of murder. On August 22, 1973 all the above-named. accused were arraigned and each of them pleaded not guilty to the crime charged. Following the arraignment, the respondent judge, Hon. Ramon E. Nazareno, set the hearing of the case for September 18, 1973 at 1:00 o'clock in the afternoon. All the acused including private respondent, were duly informed of this. Before the scheduled date of the first hearing the private respondent escaped from his detention center and on the said date, failed to appear in court. This prompted the fiscals handling the case (the petitioners herein) to file a motion with the lower court to proceed with the hearing of the case against all the accused praying that private respondent de la Vega, Jr. be tried in absentia invoking the application of Section 19, Article IV of the 1973 Constitution which provides: SEC. 19. In all criminal prosecution, 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 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 unjustified. (Emphasis supplied.) * Pursuant to the above-written provision, the lower court proceeded with the trial of the case but nevertheless gave the private respondent the opportunity to take the witness stand the moment he shows up in court. 1 After due trial, or on November 6,1973, the lower court rendered a decision dismissing the case against the five accused while holding in abeyance the proceedings against the private respondent. The dispositive portion is as follows: WHEREFORE, insofar as the accused Samson Suan Alex Potot, Rogelio Mula Fernando Cargando and Rogelio Baguio are concerned, this case is hereby dismissed. The City Warden of Lapu-Lapu City is hereby ordered to release these accused if they are no longer serving sentence of conviction involving other crimes. The proceedings in this case against the accused Teodoro de la Vega, Jr. who has escaped on August 30,1973 shall remain pending, without prejudice on the part of the said accused to cross-examine the witnesses for the prosecution and to present his defense whenever the court acquires back the jurisdiction over his person. 2 On November 16,1973 the petitioners filed a Motion for Reconsideration questioning the above-quoted dispositive portion on the ground that it will render nugatory the constitutional provision on "trial in absentia" cited earlier. However, this was denied by the lower court in an Order dated November 22, 1973. Hence, this petition.

The respondent court, in its Order denying the Motion for Reconsideration filed by the herein petitioners, expressed the opinion that under Section 19, Article IV of the 1973 Constitution, the private respondent, who was tried in absentia, did not lose his right to cross-examine the witnesses for the prosecution and present his evidence. 3 The reasoning of the said court is that under the same provision, all accused should be presumed innocent. 4 Furthermore the lower court maintains that jurisdiction over private respondent de la Vega, Jr. was lost when he escaped and that his right to cross-examine and present evidence must not be denied him once jurisdiction over his person is reacquired. 5 We disagree. First of all, it is not disputed that the lower court acquired jurisdiction over the person of the accusedprivate respondent when he appeared during the arraignment on August 22,1973 and pleaded not guilty to the crime charged. In cases criminal, jurisdiction over the person of the accused is acquired either by his arrest for voluntary appearance in court. Such voluntary appearance is accomplished by appearing for arraignment as what accused-private respondent did in this case. But the question is this was that jurisdiction lost when the accused escaped from the custody of the law and failed to appear during the trial? We answer this question in the negative. As We have consistently ruled in several earlier cases,6 jurisdiction once acquired is not lost upon the instance of parties but continues until the case is terminated. To capsulize the foregoing discussion, suffice it to say that where the accused appears at the arraignment and pleads not guilty to the crime charged, jurisdiction is acquired by the court over his person and this continues until the termination of the case, notwithstanding his escape from the custody of the law. Going to the second part of Section 19, Article IV of the 1973 Constitution aforecited a "trial in absentia"may be had when the following requisites are present: (1) that there has been an arraignment; (2) that the accused has been notified; and (3) that he fails to appear and his failure to do so is unjustified. In this case, all the above conditions were attendant calling for a trial in absentia. As the facts show, the private respondent was arraigned on August 22, 1973 and in the said arraignment he pleaded not guilty. He was also informed of the scheduled hearings set on September 18 and 19, 1973 and this is evidenced by his signature on the notice issued by the lower Court. 7 It was also proved by a certified copy of the Police Blotter 8 that private respondent escaped from his detention center. No explanation for his failure to appear in court in any of the scheduled hearings was given. Even the trial court considered his absence unjustified. The lower court in accordance with the aforestated provisions of the 1973 Constitution, correctly proceeded with the reception of the evidence of the prosecution and the other accused in the absence of private respondent, but it erred when it suspended the proceedings as to the private respondent and rendered a decision as to the other accused only. Upon the termination of a trial in absentia, the court has the duty to rule upon the evidence presented in court. The court need not wait for the time until the accused who who escape from custody finally decides to appear in court to present his evidence and moss e the witnesses against him. To allow the delay of proceedings for this purpose is to render ineffective the constitutional provision on trial in absentia. As it has been aptly explained: . . . The Constitutional Convention felt the need for such a provision as there were quite a number of reported instances where the proceedings against a defendant had to be stayed indefinitely because of his non- appearance. What the Constitution guarantees him is a fair

trial, not continued enjoyment of his freedom even if his guilt could be proved. With the categorical statement in the fundamental law that his absence cannot justify a delay provided that he has been duly notified and his failure to appear is unjustified, such an abuse could be remedied. That is the way it should be, for both society and the offended party have a legitimate interest in seeing to it that crime should not go unpunished. 9 The contention of the respondent judge that the right of the accused to be presumed innocent will be violated if a judgment is rendered as to him is untenable. He is still presumed innocent. A judgment of conviction must still be based upon the evidence presented in court. Such evidence must prove him guilty beyond reasonable doubt. Also, there can be no violation of due process since the accused was given the opportunity to be heard. Nor can it be said that an escapee who has been tried in absentia retains his rights to cross-examine and to present evidence on his behalf. By his failure to appear during the trial of which he had notice, he virtually waived these rights. This Court has consistently held that the right of the accused to confrontation and cross-examination of witnesses is a personal right and may be waived. 10 In the same vein, his right to present evidence on his behalf, a right given to him for his own benefit and protection, may be waived by him. Finally, at this point, We note that Our pronouncement in this case is buttressed by the provisions of the 1985 Rules on Criminal Procedure, particularly Section 1 (c) of Rule 115 which clearly reflects the intention of the framers of our Constitution, to wit: ... The absence of the accused without any justifiable cause at the trial on a particular date of which he had notice shall be considered a waiver of his right to be present during that trial. When an accused under custody had been notified of the date of the trail and escapes, he shall be deemed to have waived his right to be present on said date and on all subsequent trial dates until custody in regained.... Accordingly, it is Our considered opinion, and We so hold, that an escapee who has been duly tried in absentiawaives his right to present evidence on his own behalf and to confront and cross-examine witnesses who testified against him. 11 WHEREFORE, in view of the foregoing, the judgment of the trial court in Criminal Case No. 112-L in so far as it suspends the proceedings against the herein private respondent Teodoro de la Vega, Jr. is reversed and set aside. The respondent judge is hereby directed to render judgment upon the innocence or guilt of the herein private respondent Teodoro de la Vega, Jr. in accordance with the evidence adduced and the applicable law. No pronouncement as to costs. SO ORDERED. G.R. No. 86792 March 21, 1990 SPOUSES MARINO AND LINA JOEL SAPUGAY, petitioners, vs. HON. COURT OF APPEALS, MOBIL PHILIPPINES, INC. AND RICARDO CARDENAS, respondents. For review in this petition is the decision 1 of respondent Court of Appeals in CA-G.R. CV No. 07614 thereof, dated November 11, 1988, deleting the award made by the court a quo 2 for rental, storage and guarding fees and unrealized profits, the reduction of the other damages granted, and the exclusion and exclupation from liability of respondent Ricardo P. Cardenas, as well as the resolution 3 of respondent court of January 30, 1989 denying petitioner's motion for reconsideration.

The following facts, culled from respondent court's decision and sustained by the evidence of record, are adopted by us in our adjudication: 1. On September 27, 1982, plaintiff Mobil Philippines, Inc. filed a complaint for replevin with damages against defendant Lina Joel Sapugay before the Court of First Instance of Rizal, Seventh Judicial District, Pasig, Metro Manila. The complaint,which was duly amended on October 11, 1982 alleges the following: that upon the termination of the Dealership Agreement between Mobil Oil Philippines, Inc. and Nemar Marketing Corporation, defendant applied to the plaintiff to become a dealer of the latter's products; that pending consideration of the dealership application, plaintiff loaned to the defendant the properties installed in the premises of Nemar at Sto. Tomas, Batangas, valued at P1,500,000.00; that for a period of three (3) months from the date of application, defendant failed to secure and file the required surety bond, compelling plaintiff to reject defendant's application and the return and redelivery of the aforementioned properties; that defendant refused to return said equipments, and demanded instead that defendant be paid first the sum of P15,000.00 daily as rental and guard's fees from June 8, 1982 up to the day of actual pull-out. Thus, plaintiff prays for the return of said properties or its value including damages, attorney's fees and costs of suit. 2. On October 12, 1982, the lower court issued an order for the issuance of a writ of replevin upon the filing of plaintiff's bond. 3. On November 29, 1982, defendant filed her answer alleging as affirmative defenses that upon presentation of defendant's application, plaintiff and it's manager, R.P. Cardenas, imposed upon them as a condition for the approval of their application defendant's acquisition of the premises where the business will be conducted; that consequently applicant-defendant purchased the said land for seven hundred thousand (P700,000.00) pesos; that on June 21, 1982, a preliminary agreement was signed constituting defendant as plaintiff's authorized dealer, whereupon plaintiff turned over to the defendant the equipment to be used therefor; that plaintiff instructed dependant to commence operation whereupon the latter made the necessary preparations amounting to P38,000.00; that defendant commenced operation on June 26, 1982, pending execution of the formal dealership agreement; that on the last week of July, 1982, they signed the formal dealership agreement a copy of which was withheld from them by the plaintiff pending its notarization; that as the formal agreement had already been signed, defendant and her husband requested plaintiff that they be allowed to get gas even on a cash basis, but plaintiff denied the request claiming that they still have to post a surety bond which was initially fixed at P200,000.00 then later increased to P700,000.00; that defendant and her husband exerted their best effort to secure a bond but the bonding companies required a copy of the dealership agreement which was continiously withheld from them by plaintiff, that defendant discovered that plaintiff and its manager intended all along, to award said dealership to Island Air Product Corporation; that in furtherance of said scheme plaintiff caused all the LP-Gas equipment to be publicly pulled out from defendant's premises. As counterclaim, defendant prayed that plaintiff and its manager be made liable for their preoperation expenses rental, storage, and guarding fees, unrealized profit including damages and the return of the LP-Gas equipment to the premises. 4. On December 9, 1982, the writ of replevin dated October 22, 1982 issued by Honorable Eduardo C. Abaya of the Court of First Instance, Rizal, Branch XXIV was duly executed. 5. On September 8, 1983, the pre-trial conference in Branch 132, Makati, Metro Manila was terminated without any amicable settlement, and trial was set for November 3, 1983.

6. On November 3, 1983, the trial court granted plaintiff's Motion for Leave to Amend Complaint, alleging that plaintiff Mobil Oil Philippines, Inc. having been taken over by Caltex Philippines, Inc., and prior to dissolution, assigned and transferred all the rights, interest, claim and cause of action in favor of Mobil Philippines, Inc. 7. On August 8, 1985, the trial court, after finding that plaintiff and its manager, R.P. Cardenas, have reneged on its promise to award the dealership to defendant Sapugay, rendered judgment in favor of the latter, dismissing the complaint and ordering plaintiff and its manager to pay the pre-operation expenses, rental, storage, and guarding fees of plaintiff's LPG equipment; unrealized profits, moral damages including litigation expenses, attorney's fees and costs of the suit. 8. On August 26, 1985, defendant filed a motion for application to have plaintiffs bond posted by the Malayan Surety Company liable for the satisfaction of the judgment. 9. On August 29, 1985, the plaintiff-corporation filed a notice of appeal manifesting that it was appealing to the Court of Appeals from the decision promulgated on August 8, 1985. 10. On September 17, 1985, the trial court issued an order denying the defendant's motion considering that the lower court no longer had any jurisdiction to act on the matter with the perfection of plaintiffs appeal. 4 On November 11, 1988, respondent Court of Appeals rendered a decision, disposing as follows: WHEREFORE, the decision appealed from is hereby MODIFIED in that the awards of rental, storage and guarding fees and the award of unrealized profits, are hereby DELETED, and the award of damages REDUCED. The decision is AFFIRMED in all other aspects with Mobil Philippines, lnc. being solely liable. 5 The motion for reconsideration filed by herein petitioners, praying that the bond posted by Malayan Insurance Co., Inc. in behalf of herein private respondents be made liable for damages suffered by petitioners, was denied by respondent court in its resolution dated January 30, 1989. Hence, this petition. The issues raised by petitioners for resolution are whether respondent court committed serious errors of law amounting to grave abuse of discretion and/or excess of jurisdiction: 1. In excluding from the case and exculpating from liability respondent Ricardo P. Cardenas, an indispensable party; 2. In deleting from the decision of the court a quo the awards for guarding fee and unrealized profits; and 3. In holding that Malayan Insurance Co., Inc., is not liable on the bond. In their comment, private respondents aver that since the counterclaim of petitioners against the former is permissive in nature and since no docket fee was paid, the trial court did not acquire jurisdiction over the case, hence the awards rendered on petioners' counterclaim should be dismissed. Under the first assigned error, petitioners assert that respondent Court of Appeals erred in exculpating Cardenas from liability and in holding that said Cardenas, who is not a party to the original action, may not be impleaded by petitioners in their counterclaim on the ground that a counterclaim cannot be filed against a person who is not an actual party to the litigation. In effect, what respondent court is saying is

that the trial court did not acquire jurisdiction over the person of Cardenas, hence he cannot be held jointly liable with Mobil Philippines, Inc. (hereafter, Mobil for short). On the contrary, petitioners submit that Cardenas is an indispensable party since he was the one who negotiated with them in transacting the dealership agreement. A counterclaim is defined as any claim for money or other relief which a defending party may have against an opposing party. 6 However, the general rule that a defendant cannot by a counterclaim bring into the action any claim against persons other than the plaintiff admits of an exception under Section 14, Rule 6 which provides that "when the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants, if jurisdiction over them can be obtained." The inclusion, therefore, of Cardenas in petioners' counterclaim is sanctioned by the rules. The next question to be resolved is whether the trial court acquired jurisdiction over the person of Cardenas. It has been held that a counterclaim stands on the same footing as, and is to be tested by the same rules as if it were, an independent action. 7 Hence, the same rules on jurisdiction in an independent action ordinarily apply equally to a counterclaim. In her answer, filed on November 29, 1982, to the amended complaint, petitioner Lina Sapugay impleaded Cardenas as a defendant in her counterclaim therein, and prayed that judgment be rendered holding specifically Mobil and Cardenas jointly and severally liable to herein petitioners. 8 Thereafter, petitioner filed a "Motion to Declare Plaintiff and its Manager, Ricardo P. Cardenas, in Default on Defendant's Counterclaim" for failure of private respondents to answer the counterclaim. 9 Cardenas was furnished copies of both the answer and the motion to declare herein private respondents in default. 10 Respondent Mobil filed an opposition to the motion to declare them in default, alleging that they, the private respondents herein, may not be so declared. 11 The court below agreed with private respondents' reasoning therein that a compulsory counterclaim being involved, the issues raised in the counterclaim are deemed automatically joined by the allegations of the complaint, hence the complaint itself stood as the answer to defendant's counterclaim. Consequently, the trial court denied the motion to declare the herein private respondents in default. 12 It is noteworthy that Cardenas did not file a motion to dismiss the counterclaim against him on the ground of lack of jurisdiction. While it is a settled rule that the issue of jurisdiction may be raised even for the first time on appeal, this does not obtain in the instant case. Although it was only Mobil which filed an opposition to the motion to declare in default, the fact that the trial court denied said motion, both as to Mobil and Cardenas on the ground that Mobil's complaint should be considered as the answer to petioners' compulsory counterclaim, leads us to the inescapable conclusion that the trial court treated the opposition as having been filed in behalf of both Mobil and Cardenas and that the latter had adopted as his answer the allegations raised in the complaint of Mobil. Obviously, it was this ratiocination which led the trial court to deny the motion to declare Mobil and Cardenas in default. Furthermore, Cardenas was not unaware of said incidents and the proceedings therein as he testified and was present during the trial, not to speak of the fact that as manager of Mobil he would necessarily be interested in the case and could readily have access to the records and pleadings filed therein. By adopting as his answer the allegations in the complaint which seeks affirmative relief, Cardenas is deemed to have recognized the jurisdiction of the trial court over his person and submitted thereto. He may not now be heard to repudiate or question that jurisdiction. 13 Mobil likewise questions the jurisdiction of the trial court in entertaining the counterclaim since no docket fee was paid. It avers that since it is a permissive counterclaim, petitioners should have paid the necessary docket fee. On the contrary, we find and so hold that the counterclaim of petitioners is compulsory in nature since both the complaint and counterclaim involve the same transaction and arose from the same occurrence. Besides, as earlier discussed, in Mobil's opposition to the motion for a

default order, it categorically stated that petitioners' counterclaim is compulsory in nature, 14 which was likewise the view of the trial court and the precise reason why it denied said motion. Private respondents are now estopped from claiming otherwise. In the recent case of Sun Insurance Office, Ltd., et al. vs. Hon. Asuncion, et al. 15 involving the rule on payment of docket fees in ordinary actions, the rule was affirmed and made to apply specifically to permissive counterclaims only, thereby excluding compulsory counterclaims from its purview. As to the second assigned error, the finding of the Court of Appeals that no sufficient and substantial evidence exists to warrant an award of guarding fees and unearned profits is conclusively binding on this Court, for failure of private respondents to show that the appellate court acted with grave abuse of discretion or erred in making such finding. Fundamental is the rule that findings of fact of the Court of Appeals will not be disturbed unless shown to have been rendered with arbitrariness, nor are any of the jurisprudentially accepted exceptions thereto present in this case. Anent the issue on the surety's liability upon the replevin bond, we do not believe that Malayan Insurance Co., Inc. should be made liable thereon. As correctly observed by respondent court, "the damages awarded by the trial court were based on Articles 19 and 20 of the New Civil Code and not on the deprivation of personal properties subject of the replevin bond. Moreover, no judgment was entered for the return of the properties subject of the replevin bond to the defendant, the latter never having raised the issue of rightful possession to the said properties." 16 A replevin bond is simply intended to indemnify the defendant against any loss that he may suffer by being compelled to surrender the possession of the disputed property pending the trial of the action. He cannot recover on the bond as for a reconversion when he has failed to have the judgment entered for the return of the property. Nor is the surety liable for payment of the judgment for damages rendered against the plaintiff on a counterclaim or punitive damages for fraudulent or wrongful acts committed by the plaintiffs and unconnected with the defendant's deprivation of possession by the plaintiff. Indeed, even where the judgment was that the defendant was entitled to the property, but no order was made requiring the plaintiff to return it or assessing damages in default of a return, it was declared that until judgment was entered that the property should be restored, there could be no liability on the part of the sureties. 17 There is no denying the active participation of Cardenas in the anomalous transactions had with petitioner Lina Sapugay as found by the Court of Appeals, to wit: Indeed, a perusal of the letters referred to show that plaintiff corporation, particularly its manager, gave cause for defendant Sapugay to believe that she is the authorized supplier and refiller of Mobil Philippines, to wit, plaintiff's letter to defendant signed by its Manager R.P. Cardenas dated July 2, 1982 (Exhibit "2"), referred to defendant "as a major supplier of LPG and as the authorized refiller of Mobil Oil Philippines . . . committed to the government as well as to all Mobil LP-Gas customers to uphold the highest standard in respect to marketing as well as safety (Exhibit "2-b")." This belief is further bolstered by the Memorandum dated July 12, 1982 signed by Cardenas and sent to defendant by registered mail (Exhibit "5") attaching a copy of Ministry Order No. 82-06-08 (Exhibit "3-b") prohibiting LPG cylinder exchange and the refilling of other brands of cylinder without the brand owner's authority. As to the existence of a Formal Dealership Agreement, this Court failed to find any other evidence other than defendant's testimony to substantiate the allegation that plaintiff and defendant had already signed a dealership agreement in July 1982 which the former withheld from the latter, causing defendant's failure to submit the requisite bond. Moreover, this Court notes that the blank standard dealership agreement form presented by plaintiff (Exhibit "L"), shows no requirement for the filing of a bond. Further, Manager Cardenas

himself testified that this standard agreement contained all the terms and conditions of a dealership, . . . xxx xxx xxx Thus, the lower court found that the requirement of posting a bond, initially fixed at P200,000.00 then raised to P700,000.00 was a preplanned scheme of plaintiff and/or R.. Cardenas to put every hindrance before the defendant so that the latter could not get the dealership agreement . . . xxx xxx xxx As found by the trial court, all these acts of plaintiff and its manager, R.. Cardenas, are contrary to Articles 19 and 20 of the New Civil Code, to wit: Art. 19. Every person must, in the exercise of his rights and in the performance of his duties act with justice, give everyone his due and observe honesty and good faith. Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same. for which plaintiff must be made to recompense the damages the defendant suffered. (Emphasis supplied) 19 We, therefore, find and so hold that private respondent Ricardo P. Cardenas should be held jointly and severally liable with his co-respondent Mobil Philippines, Inc. for having acted in bad faith by impeding and preventing the award of the dealership to petitioners through fraudulent means. ACCORDINGLY, the judgment appealed from is hereby AFFIRMED with the modification that respondents Mobil Philipines, Inc. and Ricardo P. Cardenas are held jointly and severally liable to herein petitioners Marino and Lina Joel Sapugay. SO ORDERED. G.R. No. 121017 February 17, 1997 OLIVIA B. CAMANAG, petitioner, vs. THE HONORABLE JESUS F. GUERRERO IN HIS OFFICIAL CAPACITY AS CITY PROSECUTOR OF MANILA, NESTOR GONZALES, IN HIS OFFICIAL CAPACITY AS ASSISTANT PROSECUTOR OF MANILA, THE HONORABLE MARINO DELA CRUZ IN HIS OFFICIAL CAPACITY AS PRESIDING JUDGE OF BRANCH 22 OF THE REGIONAL TRIAL COURT OF MANILA, respondents. This case asks for and includes: (1) a Petition for Declaratory Relief under Rule 64 of the Revised Rules of Court which seeks the declaration of nullity of Sections 15 and 17 of the Ombudsman Act (R.A. No. 6770), insofar as it empowers the Ombudsman to conduct preliminary investigations and to directly undertake criminal prosecutions; (2) a Petition for Certiorari to declare as null and void, for allegedly having been rendered with grave abuse of discretion, the Resolution dated June 21, 1995 rendered in I.S. No. 95-D-12930 by respondent Assistant City Prosecutor Nestor D. Gonzales and approved by respondent City Prosecutor Jesus F. Guerrero; (3) a Petition forMandamus to compel respondents City Prosecutor and Assistant City Prosecutor to conduct a preliminary investigation on the complaint for Falsification of Public Documents filed against petitioner; and (4) a Petition for Prohibition to enjoin

respondent judge of the City of Manila from further proceeding with the cases stemming from the information charging petitioner with three (3) counts of falsification lodged with the trial court and to order the dismissal thereof. The facts, as summarized in the Comment of the Office of the Solicitor General, are as follows: On August 2, 1993, the Professional Regulations Commission (PRC) issued the Table of Results of those who failed the May, 1993 Certified Public Accountant (CPA) Licensure Examinations. On Page 11 thereof, Sequence No. 493, petitioner Olivia B. Camanag was listed as having failed with a general average of 50.00% (Annex "1"). However, on December 15, 1993, petitioner in accomplishing her Personal Data sheet (CSC form No. 212) as employee of the Bureau of Internal Revenue (BIR) indicated under question No. 18 that she passed the May, 1993 Board Examinations with a rating of 75.42% (Annex "2"). On July 4, 1994, an anonymous letter was sent to PRC Chairman Hermogenes P. Pobre "claiming that certain BIR employees allegedly passed the CPA Licensure Exams under anomalous circumstances" (Annex "3"). Still, on July 28, 1994, petitioner claimed to have received what was purportedly a "Certified True Copy" of her passing rating sheet, allegedly signed by PRC Acting Assistant Chief Leandro O. Ordenes (Mr. Leandro O. Ordenes is actually the Records Officer of the PRC) (Pet., Annex "C"). On August 24, 1994, PRC Chairman Pobre wrote Ombudsman Conrado Vasquez that BIR employees Marilyn Lee, Connie Dimapilis, Eilene Purification, Elenita Villamor, Lodiminda Crizaldo, petitionerOlivia Camanag and Maria Rosario de los Reyes, did not actually pass the CPA licensure examinations (Annex "3"). On October 5, 1994, Associate Ombudsman Investigator (AOI) Joaquin S. Bumanlag set the fact-finding investigation of the matter on October 11, 1994 at 10:00 a.m. He also issued a Subpoena Duces Tecum to the Chief of the BIR Personnel Division (Annex "4"). On December 1, 1994, AOI Bumanglag concluded his fact-finding investigation with a Report finding probable cause against petitioner for violation of Article 171(4) of the Revised Penal Code. AOI Bumanglag recommended a preliminary investigation (Annex "5") to be conducted on the case, and at the same time, he executed under oath the corresponding affidavit-complaint against petitioner (Annex "6"). On December 19, 1994, Ombudsman Investigator (OI) Rainier C. Almazan, acting on the said affidavit-complaint, directed petitioner to submit her counter-affidavit (Annex "7"). On January 13, 1995, petitioner submitted her counter-affidavit with annexes alleging that she passed the CPA licensure examinations with a grade of 75.42% (Annex "8"). On January 31, 1995, PRC Records Section Chief Leandro O. Ordenes, issued a Certification, stating that petitioner failed in the CPA licensure examinations (Annex "9"). On February 27, 1995, OI Almazan issued a Resolution, finding ". . . sufficient ground to engender a well-founded belief that the crimes of falsification of public documents . . . have been committed . . ." (Petition, Annex "F").

Under a 1st Indorsement of even date, Deputy Ombudsman for the Armed Forces of the Philippines (AFP) Manuel B. Casaclang deputized respondent City Prosecutor of Manila Jesus Guerrero to file the corresponding charges against petitioner and to handle the prosecution of the cases (Annex "10"). On April 11, 1995, the Office of the City Prosecutor of Manila docketed the case as IS No. 95-D-12930 and herein respondent Nestor Gonzales, Assistant City Prosecutor of Manila, set it for another round of preliminary investigation on May 5 and 12, 1995 (Annex "11"). While the preliminary investigation was ongoing before the City Prosecutor, petitioner filed a motion to reset preliminary investigation (Annexes "11 -A" and "12"), Motion to Issue Subpoena and Subpoena Duces Tecum to Leandro Ordenes [OIC, Records Section] and Ernesto Jaurique [Exec. Director] (Petition, Annex "G"); and a Comment/Manifestation stating, among others, that "another round of preliminary investigation should be conducted by the City Prosecutor." Why petitioner should demand another round of preliminary investigation while one was already on-going is not clear on record. At any rate, the preliminary investigation conducted by the City Prosecutor yielded additional evidence of falsification against petitioner, to wit: Ordenes' Certification (Annex "9"), and the Table of Results-Failed, CPA Licensure Exams (Annex "1"), both submitted by the PRC showing that petitioner did flunk the CPA Licensure Exam of May, 1993. On June 21, 1995, respondent City Prosecutor issued the questioned Resolution, ". . . . finding sufficient ground to hold petitioner for trial" and ordering the filing of the Information in court (Pet., Annex "I"). On July 17, 1995, three (3) Informations for falsification of public documents were filed against petitioner docketed as Criminal Cases No. 95-143922-24. The cases were raffled off to the sala of respondent Judge Marino M. dela Cruz, Regional Trial Court, Branch 22, Manila (Annex "13-A"-"13-C"). On July 25, 1995, petitioner filed a Motion to Reduce Bail Bond (Annex "14"). But even before respondent judge could act on his motion to reduce bail bond, petitioner filed the instant petition. Thereafter, petitioner posted her cash bond with "Waiver" viz: "Pursuant to Letter of Instructions No. 40 dated November 10, 1972, issued by the President of the Philippines, following annotation is hereby incorporated in the CASH BOND posted for the account in the above-entitled cases. The herein accused hereby agreed that in case she jumps bail or fails to appear for trial/arraignment despite due notice to her counsel, her right to be present is deemed waived, which failure shall to all intents and purposes authorize the Court to proceed with the hearing as if she were personally present." 1 The issues raised in the instant case are the following: I

WHETHER OR NOT SECTIONS 15 AND 17 OF REPUBLIC ACT 6770 WHICH EMPOWERS (SIC) THE OMBUDSMAN TO CONDUCT PRELIMINARY INVESTIGATIONS OF MATTERS AND/OR REFERRED TO IT IS (SIC) NULL AND VOID FOR BEING CONTRARY TO AND VIOLATIVE OF THE PROVISIONS OF THE CONSTITUTION. II WHETHER OR NOT UNDER THE CIRCUMSTANCES OBTAINING IN THE INSTANT CASE, THE HONORABLE PUBLIC RESPONDENTS CITY PROSECUTOR AND ASSISTANT CITY PROSECUTOR ARE DUTY BOUND AS SUCH TO BE DIRECTED TO CONDUCT THE REQUISITE PRELIMINARY INVESTIGATION OF THE ANONYMOUS COMPLAINT FILED AGAINST HEREIN PETITIONER. III WHETHER OR NOT THE INFORMATIONS FILED BEFORE THE SALA OF THE HONORABLE RESPONDENT JUDGE WITHOUT THE BENEFIT OF A PRELIMINARY INVESTIGATION CONDUCTED BY RESPONDENT CITY PROSECUTOR ARE CHARACTERIZED BY SUCH FATAL DEFECTS AS TO WARRANT A WRIT OF PROHIBITION TO ENJOIN RESPONDENT JUDGE FROM TAKING ANY FURTHER ACTION THEREON EXCEPT TO ORDER THE OUTRIGHT DISMISSAL THEREOF. I As to the first issue, petitioner assails as unconstitutional Sections 15 and 17 of the Ombudsman Act (R.A. No. 6770) insofar as it empowers the Office of the Ombudsman to conduct preliminary investigation and to directly undertake criminal prosecutions on three grounds: (1) such grant of powers to the Office of the Ombudsman has no constitutional basis and runs directly counter to the intent of the framers of the Constitution; (2) it violates the principle of separation of powers; and (3) it is in direct contravention of Article XI, Section 7 of the Constitution. The assailed provisions of the Ombudsman Act read: Sec. 15. Powers, functions and duties. The Office of the Ombudsman shall have the following powers, functions and duties: (1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases; xxx xxx xxx (3) Direct the officer concerned to take appropriate action against a public officer or employee at fault or who neglects to perform an act or discharge a duty required by law, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith; or enforce its disciplinary authority as provided in Section 21 of this Act; Provided, That the refusal of any officer without just cause to comply with an order of the Ombudsman to remove, suspend, demote, fine, censure, or prosecute an

officer or employee who is at fault or who neglects to perform an act or discharge a duty required by law shall be ground for disciplinary action against said officer. xxx xxx xxx Sec. 17. Immunities. In all hearings, inquiries, and proceedings of the Ombudsman, including preliminary investigations of offenses, no person subpoenaed to testify as a witness shall be excused from attending and testifying or from producing books, papers, correspondence, memoranda and/or other records on the ground that the testimony or evidence, documentary or otherwise, required of him, may tend to incriminate him or subject him to prosecution: Provided, That no person shall be prosecuted criminally for or on account of any matter concerning which he is compelled, after having claimed the privilege against self-incrimination, to testify and produce evidence, documentary or otherwise. Under such terms and conditions as it may determine, taking into account the pertinent provisions of the Rules of Court, the Ombudsman may grant immunity from criminal prosecution to any person whose testimony or whose possession and production of documents or other evidence may be necessary to determine the truth in any hearing, inquiry or proceedings being conducted by the Ombudsman or under its authority, in the performance of or in the furtherance of its constitutional functions and statutory objectives. The immunity granted under this and the immediately preceding paragraph shall not exempt the witness from criminal prosecution for perjury or false testimony nor shall he be exempt from demotion or removal from office. Any refusal to appear or testify pursuant to the foregoing provisions shall be subject to punishment for contempt and removal of the immunity from criminal prosecution. The Ombudsman Act, petitioner concedes, clearly empowers the Office of the Ombudsman to conduct preliminary investigation and to prosecute individuals on matters and/or complaints referred to it or filed before the said government agency. But, the vesting of powers to the Office of the Ombudsman to conduct preliminary investigations and to directly undertake criminal prosecutions, petitioner argues, is totally bereft of any constitutional basis. In support of this stand, petitioner cites that, under the 1987 Philippine Constitution, specifically in Section 13, Article XI, entitled "Accountability of Public Officers," the only powers of the present day Ombudsman are enumerated as follows: Sec. 13. The Office of the Ombudsman shall have the following powers, functions and duties: (1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. (2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct, any abuse or impropriety in the performance of duties. (3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith.

(4) Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action. (5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents. (6) Publicize matters covered by its investigation when circumstances so warrant and with due prudence. (7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in government and make recommendation for their elimination and the observance of high standards of ethics and efficiency. (8) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law. (Emphasis supplied). From the above-quoted provision of the 1987 Philippine Constitution, petitioner claims that the powers of the Ombudsman are clearly defined or delineated. More particularly, petitioner alleges that the extent of the power of the Ombudsman, insofar as criminal prosecutions are concerned, is clearly spelled out in paragraphs (1) and (3) as emphasized. But while, petitioner alleges, Section 13, paragraph (1) of the aforecited Article XI of the Constitution duly empowers the Ombudsman to conduct investigations, the power to directly undertake criminal prosecutions has been clearly withheld by the framers of the Constitution from the Ombudsman in no uncertain terms under paragraph (3) of the aforecited article, which merely empowers the Office of the Ombudsman "to direct the officer concerned to take appropriate action and recommend prosecution". Thus, according to petitioner, while it is clear that the Office of the Ombudsman has no power to directly undertake criminal prosecutions, there is a question as to whether the power lodged in it to investigate under paragraph (1) is tantamount to a grant of power to conduct preliminary investigations. Petitioner submits that consonant to the withholding of the power to directly undertake criminal proceedings, the Ombudsman does not possess the power to conduct formal preliminary investigation proceedings for the simple reason that formal preliminary investigation proceedings constitute an integral part of the process of criminal prosecutions. This is so, according to petitioner, inasmuch as the term prosecution is defined by Black's Law Dictionary as: . . . . (a) criminal action: a proceeding instituted and carried on by due course of law, before a competent tribunal, for the purpose of determining the guilt or innocence of a person charged with crime . . . 2 More precisely, petitioner continues, "to prosecute" has been defined as "to begin and to carry on a legal proceeding," 3 and "it marks the commencement of a criminal prosecution and precedes and determines the filing of an information. 4 Additionally, petitioner asserts that the unqualified grant of prosecutorial powers to the Ombudsman runs directly against the intent of the framers of the Constitution, particularly, to lodge prosecutorial powers in other governmental officers, i.e., the public prosecutors. In further support of this argument, petitioner relies heavily on the records of the proceedings of the Constitutional Commission of 1986, particularly, on the debates and interpellations of the Committee on Accountable Officers which drafted Section 13, Article XI of the 1987 Philippine Constitution.

Indeed, the proceedings so indicate: MR. RODRIGO: Madam President. The President: Commissioner (Francisco A.) Rodrigo is recognized. MR. RODRIGO: I noticed that the proposed provisions on the Ombudsman retain the Tanodbayan, and there seems to be an overlapping in the functions of the Tanodbayan and the Ombudsman. What is the clear-cut dividing line between the functions of the Ombudsman and the Tanodbayan, so that our people will know when to go to the Tanodbayan and when to go to the Ombudsman? MR. MONSOD: Madam President, essentially, the difference lies in one being a prosecutory arm and the other a champion of the citizen who is not bound by legal technicalities or legal forms, but I would like to ask Commissioner Nolledo to explain this in detail. MR. NOLLEDO: if we go over the provision of P.D. No. 1607, which amended P.D. No. 1487, creating the Office of the Tanodbayan, also called by Mr. Marcos as Ombudsman, there are two parts in the functions of the Tanodbayan: First, to act as prosecutor of anti-graft cases, and to entertain complaints from the public. The second part constitutes the basic function of the Ombudsman. And if we turn to page 3 of the report of the Committee, Section 5 provides and I quote: "The Tanodbayan created pursuant to the mandate of Section 6 of Article XIII of the Constitution shall continue to function and exercise its powers as now or hereafter may be provided by law, except those conferred on the office of the Ombudsman created under this constitution." This means that we are removing the second part of the functions of the Tanodbayan and vesting the same in the office of the Ombudsman; and therefore, the Tanodbayan shall continue to discharge his functions under the first party merely as prosecutor, like a fiscal, of anti-graft cases, which are filed with the Anti-Graft Court. MR. RODRIGO: So, the Ombudsman cannot prosecute? MR. NOLLEDO: No, he cannot. He can refer the cases that should be prosecuted to the appropriate official he may be the Tanodbayan or he may be the ordinary fiscal. MR. RODRIGO: Has the Ombudsman any power to compel the prosecuting arm to prosecute or can he only recommend? MR. NOLLEDO: He can direct. MR. RODRIGO: Can he command? MR. NOLLEDO: That is equivalent to commanding the fiscal if the fiscal refuses to file the case. And then in that case, if the fiscal refuses, then there are available remedies. He may appeal to the Ministry of Justice. MR. RODRIGO: Can the Ombudsman act on his own? MR. NOLLEDO: Yes, even without a complaint.

MR. RODRIGO: If the fiscal refuses to file the information, can the Ombudsman file the information? MR. NOLLEDO: No. I understand he will appeal to the Minister of Justice and the Ministry of Justice will correspondingly decide on the appeal. If the Ministry of Justice, for example, upholds the Ombudsman, there is no question about that. But if the Ministry of Justice does not uphold him, the Ombudsman perhaps, based on the presidential form of government, may appeal to the President. And the President, where the Ministry of Justice is merely his alter ego, may overrule the Minister of Justice ...5 In view of the above-quoted records of the proceedings of the Constitutional Commission, it is clear, petitioner argues, that the power of the Ombudsman is limited to the mere issuance of the directives to the appropriate officer, i.e., the Prosecutor, to cause the filing of the information and the prosecution thereof. This allegedly clearly portrays the intent of the Constitutional Commission members to withhold prosecutorial powers from the Ombudsman and to lodge it with other governmental officers. Anent the second ground, petitioner argues that the unqualified grant of prosecutorial powers to the Office of the Ombudsman violates the principle of separation of powers enshrined in the Constitution. This, inasmuch as, according to petitioner, the Office of the Ombudsman is a constitutional body, and is a part neither of the legislative, executive nor judiciary branches. As such, petitioner claims, in the absence of an express constitutional provision to the contrary, it is not empowered to conduct preliminary investigations, as these pertain exclusively to the executive branch. Anent the third ground, which petitioner claims as perhaps the strongest argument against the constitutionality of R.A. No. 6770, petitioners argues that the unqualified grant of prosecutorial powers on the Office of the Ombudsman is in direct contravention of Article XI, Section 7 of the 1987 Philippine Constitution. Article XI, Section 7 of the 1987 Philippine Constitution reads: Sec. 7. The existing Tanodbayan shall hereafter be known as the office of the Special Prosecutor. It shall continue to function and exercise its power as now or hereafter may be provided by law, except those conferred on the office of the Ombudsman created under this Constitution. In support of this argument, petitioner claims that in the interpretation of this particular provision and those pertaining to the office of the Ombudsman, Fr. Joaquin Bernas, an eminent authority on constitutional law and a member of the 1986 Constitutional Commission, had occasion to write: The 1973 Constitution also enjoined the Batasang Pambansa to create an office of the Ombudsman or Tanodbayan. Again the Batasang Pambansa was anticipated by the President in P.D. 1630 creating the office then of Tanodbayan. The broad discretion of the legislative authority to expand or contract the power of the Tanodbayan under the 1973 Constitution was recognized in Inting v.Tanodbayan. The 1987 Constitution changed much of that. The title Tanodbayan has been retained for the Ombudsman. He has also been given one over-all deputy and at least one deputy each for Luzon, Visayas, and Mindanao. He retains the functions of the Tanodbayan of the 1973 Constitution except the prosecutorial functions. The Ombudsman and his deputies are appointed by the President from a list of nominees presented by the judicial and Bar Council and they have rank of Chairman and Member respectively of the Constitutional Commissions. They serve for a term of seven years.

The prosecutorial functions have been given over to a Special Prosecutor from the Ombudsman. (The Constitution of the Republic of the Philippines, Bernas, Joaquin, Vol. II, 1990 p. 408) [emphasis supplied] 6 If prosecutorial functions have in fact been retained by the Office of the Special Prosecutor, petitioner opines, the unqualified grant of power to exercise such prosecutorial functions given by R.A. No. 6770 to the office of the Ombudsman invariably diminishes the authority and power lodged in the office of the Special Prosecutor. In this light, petitioner argues, R.A. No. 6770, insofar as it unqualifiedly vests prosecutorial functions to the office of the Ombudsman, infringes on Section 7, Article XI of the fundamental law, and is hence, unconstitutional. We are visibly impressed by the ratiocinations of petitioner, but, unfortunately, we are bound by stare decisis. Anent petitioner's contention that the vesting of prosecutorial powers to the Ombudsman finds no basis in the 1987 Constitution and that it runs counter to the intent of the framers of the Constitution to withhold such powers from the Ombudsman, suffice it to state that a similar contention had already been overruled by this Court in the case of Acop v. Office of the Ombudsman. 7 In upholding the validity of the grant of prosecutorial powers on the Ombudsman, notwithstanding the intent of the framers of the 1987 Constitution to withhold such powers from him, this Court declared, that: . . . . (w)hile the intention to withhold prosecutorial powers from the Ombudsman was indeed present, the Commission did not hesitate to recommend that the Legislature could, through statute, prescribe such other powers, functions and duties to the Ombudsman. Paragraph 6, Section 12 of the original draft of the proposed Article on Accountability of Public Officers, which the Committee recommended for incorporation in the Constitution, reads: xxx xxx xxx (6) To exercise such powers and perform such functions or duties as may be provided by law (2 Record, 264). As finally approved by the Commission after several amendments, this is now embodied in paragraph 8, Section 13, Article XI (Accountability of Public Officers) of the Constitution, which provides: Sec. 13. The Office of the Ombudsman shall have the following powers, functions, and duties: xxx xxx xxx Promulgate its rules and procedure and exercise such other functions or duties as may be provided by law. (emphasis supplied) Expounding on this power of Congress to prescribe other powers, functions, and duties to the Ombudsman, we quote Commissioners Colayco and Monsod during interpellation by Commissioner Rodrigo: MR. RODRIGO: Let us go back to the division between the powers of the Tanodbayan and the Ombudsman which says that:

The Tanodbayan ... shall continue to function and exercise its powers as provided by law, except those conferred on the office of the Ombudsman created under this Constitution. The powers of the Ombudsman are enumerated in Section 12. MR. COLAYCO: They are not exclusive. MR. RODRIGO: So, these powers can also be exercised by the Tanodbayan? MR. COLAYCO: No, I was saying that the powers enumerated here for the Ombudsman are not exclusive. MR. RODRIGO: Precisely, I am coming to that. The last enumerated functions of the Ombudsman is: "to exercise such powers or perform such functions or duties as may be provided by law." So, the legislature may vest him with powers taken away from the Tanodbayan, may it not? MR. COLAYCO: Yes. MR. MONSOD: Yes. MR. RODRIGO: And it is possible that pretty soon the Tanodbayan will be a useless appendage and will lose all his powers. MR. COLAYCO: No. I am afraid the Gentleman has the wrong perception of the system. We are leaving to the Tanodbayan the continuance of his functions and the exercise of the jurisdiction given to him pursuant to . . . MR. RODRIGO: Law. MR. COLAYCO: No. Pursuant first to the Constitution and the law which mandated the creation of the office. MR. RODRIGO: Madam President. Section 5 reads: "The Tanodbayan shall continue to function and exercise its powers as provided by law." MR COLAYCO: That is correct, because it is under P.D. No. 1630. MR. RODRIGO: So, if it is provided by law, it can be taken away by law, I suppose. MR. COLAYCO: That is correct. MR. RODRIGO: And precisely, Section 12(6) says that among the functions that can be performed by the Ombudsman are "such functions or duties as may be provided by law." The sponsors admitted that the legislature later on might remove some powers from the Tanodbayan and transfer these to the Ombudsman. MR. COLAYCO: Madam President, that is correct. MR. MONSOD: Madam President, perhaps it might be helpful if we give the spirit and intendment of the Committee. What we wanted to avoid is the situation where it deteriorates into a prosecution arm. We wanted to give the idea of the Ombudsman a chance, with prestige and persuasive powers, and also a chance to really function as a champion of the citizen. However, we do not want to foreclose the possibility that in the future, The Assembly, as it may see fit, may have to give additional powers to the Ombudsman; we want to give the concept of a pure Ombudsman a chance under the Constitution. MR. RODRIGO:

Madam President, what I am worried about is if we create a constitutional body which has neither punitive nor prosecutory powers but only persuasive powers, we might be raising the hopes of our people too much and then disappoint them. MR. MONSOD: I agree with the Commissioner. MR. RODRIGO: Anyway, since we state that the powers of the Ombudsman can later on be implemented by the legislature, why not leave this to the legislature? MR. MONSOD: Yes, because we want to avoid what happened in 1973. I read the committee report which recommended the approval of the 27 resolutions for the creation of the office of the Ombudsman, but notwithstanding the explicit purpose enunciated in that report, the implementing law the last one, P.D. No. 1630 did not follow the main thrust; instead it created the Tanodbayan, (2 record, 270271.) (Emphasis supplied) xxx xxx xxx MR. MONSOD: (reacting to statements of Commissioner Blas Ople): May we just state that perhaps the honorable Commissioner has looked at it in too much of an absolutist position. The Ombudsman is seen as a civil advocate or a champion of the citizens against the bureaucracy, not against the President. On one hand, we are told he has no teeth and he lacks other things. On the other hand, there is the interpretation that he is a competitor to the President, as if he is being brought up to the same level as the President. With respect to the argument that he is a toothless animal, we would like to say that we are promoting the concept in its form at the present, but we are also saying that he can exercise such powers and functions as may be provided by law in accordance with the direction of the thinking Commissioner Rodrigo. We did not think that at this time we should prescribe this, but we leave it up to Congress at some future time if it feels that it may need to designate what powers the Ombudsman need in order that he be more effective. This is not foreclosed. So, his is a reversible disability, unlike that of a eunuch; it is not an irreversible disability (Emphasis supplied). 8 The inevitable conclusion is that the Ombudsman, under the 1987 Constitution, particularly under paragraph 8, Section 13, Article XI, 9 may be validly empowered with prosecutorial functions by the legislature, and this the latter did when it passed R.A. No. 6670, which gave the Ombudsman, among others, the power to investigate and prosecute individuals on matters and/or complaints referred or filed before it. Turning now to the second ground, petitioner contends that the Office of the Ombudsman, being a constitutional body, cannot exercise executive functions, such as conducting preliminary investigation in criminal cases. The contention is devoid of merit. As conceded by the petitioner, the Office of the Ombudsman is a distinct constitutional body whose duties and functions are provided for by the Constitution itself. Considering that the power of the Ombudsman to investigate and prosecute criminal cases emanates as it does from the Constitution itself, particularly, under paragraph 8, Section 13, Article XI as above-quoted, which empowers the Ombudsman to "exercise such other powers or perform such other functions or duties" as Congress may prescribe through legislation, it cannot be logically argued that such power or the exercise thereof is unconstitutional or violative of the principle of separation of powers enshrined in the Constitution. Equally devoid of merit is the contention of petitioner that R.A. No. 6770, insofar as it unqualifiedly vests prosecutorial functions on the Ombudsman, infringes on Section 7, Article XI of the Constitution, in that it invariably diminishes the authority and power lodged in the Office of the Special Prosecutor. This ground relied upon by petitioner, like the first ground, has also been extensively dealt with and answered in, the aforecited case of Acop v. Office of the Ombudsman. 10 Addressing the contention raised by petitioners that the Office of the Special Prosecutor is not subordinate to the Ombudsman and is, in fact, separate

and distinct from the Ombudsman, such that Congress may not, under the present Constitution, validly place the Office of the Special Prosecutor under the Office of the Ombudsman, this court has upheld not only the power of Congress to so place the Office of the Special Prosecutor under the Ombudsman, but also the power of the Congress to remove some of the powers granted to the then Tanodbayan, now Office of the Special Prosecutor, under P.D. 1630, and transfer them to the Ombudsman. Thus, this Court said: . . . . Section 7 of Article XI expressly provides that the then existing Tanodbayan, to be henceforth known as the Office of the Special Prosecutor, "shall continue to function and exercise its powers as now or hereafter may be provided by law, except those conferred on the Office of the Ombudsman created under this Constitution." The underscored phrase evidently refers to the Tanodbayan's powers under P.D. No. 1630 or subsequent amendatory legislation. It follows then that Congress may remove any of the Tanodbayan's/Special Prosecutor's powers under P.D. No. 1630 or grant it other powers, except those powers conferred by the Constitution on the Office of the Ombudsman. 11 Continuing, this Court further said: Pursuing the present line of reasoning, when one considers that by express mandate of paragraph 8, Section 13, Article XI of the Constitution, the Ombudsman may "exercise such other powers or perform functions or duties as may be provided by law," it is indubitable then that Congress has the power to place the Office of the Special Prosecutor under the Office of the Ombudsman. In the same vein, Congress may remove some of the powers granted to the Tanodbayan by P.D. No. 1630 and transfer them to the Ombudsman; or grant the Office of the Special Prosecutor such other powers and functions and duties as Congress may deem fit and wise. This Congress did through the passage of R.A. No. 6770" (Emphasis supplied). 12 III The other question raised herein pertains to whether or not under the circumstances obtaining in the instant case, public respondents City Prosecutor and Assistant City Prosecutor are duty bound to conduct another preliminary investigation of the anonymous complaint filed against herein petitioner. Substantially, petitioner alleges that, inasmuch as the refusal by respondents City Prosecutor and Assistant City Prosecutor to conduct a preliminary investigation was predicated on the assumption that R.A. No. 6770 duly empowers the Office of the Ombudsman to conduct a preliminary investigation, which petitioner asserts is unconstitutional, said respondents are compellable by mandamus to conduct their own preliminary investigation, and their refusal to a preliminary investigation of the charges against petitioner is tantamount to a denial of due process. Additionally, petitioner alleges that the conduct of a preliminary investigation is mandated further by the inherent weakness in complainant's case. These contentions of petitioner are devoid of merit. Firstly, as have been extensively discussed above, petitioner's attack on the validity or constitutionality of R.A. No. 6770 is without merit. Thus, there is no more question on the validity or constitutionality of the power of the Ombudsman to conduct the preliminary investigation of the charges against respondent. It is not pretended further by petitioner that the Ombudsman did not actually conduct a preliminary investigation of the charges against her, although petitioner alleged certain defects in the conduct of the preliminary investigation. In the second place, as correctly observed by the Office of the Solicitor General in its Comment, there is sufficient showing that another round of preliminary investigation, apart from the one conducted by the

Office of the Ombudsman, was actually conducted by the Office of the City Prosecutor of Manila in the cases a quo. Thus, on record are petitioner's various Motions filed before the City Prosecutor to reset preliminary investigation 13 and to subpoena a certain witness. 14 Petitioner had likewise filed her comment on the cases against her then pending with the City Prosecutor. 15 Complainant PRC also submitted evidence against petitioner in the same proceedings. Finally, a memo of preliminary investigation conducted by the City Prosecutor was attached to the Informations eventually filed against petitioner before the Ombudsman. 16 These pieces of evidence clearly indicate that a second round of preliminary investigation was conducted by the City Prosecutor. There is no basis, therefore, to petitioner's allegations, and petitioner cannot validly claim, that she had been denied due process either by the Office of the Ombudsman or by the City Prosecutor. Neither is the alleged inherent weakness of complainant's case, a ground to compel the City Prosecutor to conduct another preliminary investigation, apart from the one already conducted and the one conducted earlier by the Ombudsman. On this score, suffice it to state that this Court has adopted a policy of non-interference in the conduct of preliminary investigations; and leaves to the investigating prosecutor sufficient latitude of discretion in the exercise of determination of what constitute sufficient evidence as will establish "probable cause" for filing of information against a supposed offender. In Tabujara v. Office of the Special Prosecutor, 17 it was ruled that: Courts cannot interfere with the discretion of the (fiscal) Ombudsman to determine the specificity and adequacy of the averments of the offense charged. He may . . . proceed with the investigation of the complaint if it is, in his view, in due and proper form. xxx xxx xxx The Ombudsman . . . is the proper adjudicator of the question as to the existence of a case warranting the filing of information in court. 18 As this Court held in the case of Cruz, Jr. v. People, 19 "(t)he rule is based not only upon the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the functions of the courts will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, in much the same way that the courts would be extremely swamped if they could be compelled to review the exercise of discretion on the part of the prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by a private complainant." IV With respect to the issue as to whether or not the Informations filed before the sala of respondent judge, allegedly without the benefit of a preliminary investigation conducted by respondent City Prosecutor, are characterized by such fatal defects that would warrant a writ of prohibition to enjoin respondent judge from taking any further action thereon except to order the case's outright dismissal, suffice it to state that the pronouncements of this court aforesaid, for obvious reasons, no longer need a discussion as to the merit or the lack thereof. Besides, petitioner's prayer for injunction to restrain the criminal action against her is not legally permissible: . . . . an injunction will not generally lie to restrain a criminal action (Paderanga v. Drilon, 196 SCRA 86 [1991]; Brocka v. Enriel, 192 SCRA 183 [1990]; Crespo v. Mogul, 151 SCRA 462 [1987]). In the Brocka case, we laid the following exceptions to the rule (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 subjudice; (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. 20 Petitioner has not shown that her case falls within any of the recognized exceptions. Perforce, her prayer for injunction to restrain the criminal actions against her must be denied. WHEREFORE, for lack of merit, the instant Petition is DENIED. SO ORDERED. G.R. No. 96080 April 19, 1991 ATTY. MIGUEL P. PADERANGA petitioner, vs. HON. FRANKLIN M. DRILON, HON. SILVESTRE H. BELLO III, ATTY. HENRICK F. GINGOYON, HELEN B. CANOY and REBECCA B. TAN, respondent In this special civil action for mandamus and prohibition with prayer for a writ of preliminary injunction/restraining order, petitioner seeks to enjoin herein public respondents from including the former as an accused in Criminal Case No. 86-39 for multiple murder, through a second amended information, and to restrain them from prosecuting him. The records disclose that on October 16, 1986, an information for multiple murder was filed in the Regional Trial Court, Gingoog City, against Felipe Galarion, Manuel Sabit, Cesar Sabit, Julito Ampo, Eddie Torion, John Doe, Peter Doe and Richard Doe, for the deaths on May 1, 1984 of Renato Bucag, his wife Melchora Bucag, and their son Renato Bucag II. Venue was, however, transferred to Cagayan de Oro City per Administrative Matter No. 87-2-244. Only Felipe Galarion was tried and found guilty as charged. The rest of the accused remained at large. Felipe Galarion, however, escaped from detention and has not been apprehended since then. In an amended information filed on October 6, 1988, Felizardo Roxas, alias "Ely Roxas," "Fely Roxas" and "Lolong Roxas," was included as a co-accused. Roxas retained petitioner Paderanga as his counsel. As counsel for Roxas, petitioner filed, among others, an Omnibus Motion to dismiss, to Quash the Warrant of Arrest and to Nullify the Arraignment on October 14, 1988. The trial court in an order dated January 9, 1989, denied this omnibus motion but directed the City Prosecutor "to conduct another preliminary investigation or reinvestigation in order to grant the accused all the opportunity to adduce whatever evidence he has in support of his defense." In the course of the preliminary investigation, through a signed affidavit, Felizardo Roxas implicated herein petitioner in the commission of the crime charged. The City Prosecutor of Cagayan de Oro City inhibited himself from further conducting the preliminary investigation against petitioner at the instance of the latter's counsel, per his resolution dated July 7, 1989. In his first indorsement to the Department of Justice, dated July 24, 1989, said city prosecutor requested the Department of Justice to designate a state prosecutor to continue the preliminary investigation against herein petitioner.

In a resolution dated September 6, 1989, 1 respondent State Prosecutor Henrick F. Gingoyon, who was designated to continue with the conduct of the preliminary investigation against petitioner, directed the amendment of the previously amended information to include and implead herein petitioner as one of the accused therein. Petitioner moved for reconsideration, 2 contending that the preliminary investigation was not yet completed when said resolution was promulgated, and that he was deprived of his right to present a corresponding counter-affidavit and additional evidence crucial to the determination of his alleged "linkage" to the crime charged. The motion was, however, denied by respondent Gingoyon in his order dated January 29, 1990. 3 From the aforesaid resolution and order, petitioner filed a Petition for Review 4 with the Department of Justice. Thereafter, he submitted a Supplemental Petition with Memorandum, 5 and then a Supplemental Memorandum with Additional Exculpatory/Exonerating Evidence Annexed, 6 attaching thereto an affidavit of Roxas dated June 20, 1990 and purporting to be a retraction of his affidavit of March 30, 1990 wherein he implicated herein petitioner. On August 10, 1990, the Department of Justice, through respondent Undersecretary Silvestre H. Bello III, issued Resolution No. 648 7 dismissing the said petition for review. His motion for reconsideration having been likewise denied, petitioner then flied the instant petition for mandamus and prohibition. Petitioner raises two basic issues, namely: (1) that the preliminary investigation as to him was not complete; and (2) that there exists no prima facie evidence or probable cause to justify his inclusion in the second amended information. Preliminary investigation is generally inquisitorial, and it is often the only means of discovering the persons who may be reasonably charged with a crime, to enable the fiscal to prepare his complaint or information. It is not a trial of the case on the merits and has no purpose except that of determining whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof, and it does not place the person against whom it is taken in jeopardy. 8 The institution of a criminal action depends upon the sound discretion of the fiscal. He has the quasijudicial discretion to determine whether or not a criminal case should be filed in court. 9 Hence, the general rule is that an injunction will not be granted to restrain a criminal prosecution. 10 The case of Brocka, et al. vs. Enrile, et al. 11cites several exceptions to the rule, to wit: a. To afford adequate protection to the constitutional rights of the accused; b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions; c. When there is a pre-judicial question which is sub judice; d. When the acts of the officer are without or in excess of authority; e. Where the prosecution is under an invalid law, ordinance or regulation; f. When double jeopardy is clearly apparent; g. Where the court has no jurisdiction over the offense; h. Where it is a case of persecution rather than prosecution; i. Where the charges are manifestly false and motivated by the lust for vengeance; and j. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied. A careful analysis of the circumstances obtaining in the present case, however, will readily show that the same does not fall under any of the aforesaid exceptions. Hence, the petition at bar must be dismissed. 1. Petitioner avers that he was deprived of a full preliminary investigation by reason of the fact that at the time the resolution of September 6, 1989 was issued, there were still several incidents pending resolution such as the validity of the testimonies and affidavits of Felizardo Roxas and Rogelio Hanopol

as bases for preliminary investigation, the polygraph test of Roxas which he failed, and the clarificatory questions which were supposed to be propounded by petitioner's counsel to Roxas and Hanopol. Petitioner likwise claims that he was deprived of the opportunity to file his counter-affidavit to the subpoena of April 25, 1989. These contentions are without merit. Firstly, it will be noted that petitioner had already filed his counter-affidavit, pursuant to the subpoena issued to him on April 17, 1989, wherein he controverted the charge against him and dismissed it as a malicious design of his political opponents and enemies to link him to the crime. We hold that this is sufficient compliance with the procedural requirement of the Rules of Court, specifically Section 3(b) of Rule 112 thereof. Besides, petitioner failed to show that the subpoena issued on April 25, 1989 involved a separate complaint charging an offense different and distinct from that charged in the complaint attached to the first subpoena issued to him earlier. Secondly, the veracity and credibility of the witnesses and their testimonies are matters of defense best addressed to the trial court for its appreciation and evaluation. Thirdly, the right of petitioner to ask clarificatory questions is not absolute. The fiscal has the discretion to determine whether or not he will propound these questions to the parties or witnesses concerned. As clearly provided for under Section 3(e), Rule 112 of the Rules of Court.: (e) If the investigating officer believes that there are matters to be clarified, he may set a hearing to propound clarificatory questions to the parties or their witnesses, during which the parties shall be afforded an opportunity to be present but without the right to examine or cross-examine. If the parties so desire, they may submit questions to the to the investigating officer which the latter may propound to the parties or witnesses concerned. Lastly, it has been held that "the proper forum before which absence of preliminary investigation should be ventilated is the Court of First Instance of a preliminary investigation does not go to the jurisdiction of the court but merely to the regularity of the proceedings. It could even be waived. Indeed, it is frequently waived. These are matters to be inquired into by the trail court not an appellate court." 12 2. Petitioner further submits that there is no prima facie evidence, or probable cause, or sufficient justification to hold him to a tedious and prolonged public trial, on the basis of the following grounds: the questioned resolution of respondent Gingoyon is full of factual misrepresentations or misapprehensions; respondent's reliance on the decision of the Regional Trial Court against Felipe Galarion suffers from constitutional and procedural infirmities considering that petitioner was not a party thereto, much less was he given any opportunity to comment on or rebut the prosecution evidence; reliance on Rogelio Hanopol's testimony is likewise "contemptible," it being merely hearsay in addition to the fact that petitioner was never given the opportunity to cross-examine Hanopol at the time he testified in court; and the affidavit of Roxas dated March 30, 1989, which is the only evidence against petitioner, has been rendered nugatory by his affidavit of retraction dated June 20, 1990. 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. 13 The quantum of evidence now required in preliminary investigation is such evidence sufficient to "engender a well founded belief as to the 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 wen grounded belief that an offense has been committed and that the accused is probably guilty thereof. 14 We are in accord with the state prosecutor's findings in the case at bar that there exists prima facie evidence of petitioner's 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 petitioner's 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 crossexamine Galarion and Hanopol at the 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. WHEREFORE, the instant petition is hereby DISMISSED for lack of merit. SO ORDERED. [G.R. No. 69863-65 : December 10, 1990.] 192 SCRA 183 LINO BROCKA, BENJAMIN CERVANTES, COSME GARCIA, RODOLFO SANTOS, VALENTINO SALIPSIP, RICARDO VEGA, ERIC MARIANO, JOSE EMMANUEL OYALES, RONNIE MATTA, ALFREDO VIAJE, RUBEN EUGENIO, REYNALDO ORTIZ, ORLANDO ORTIZ, NOEL REYES, EDUARDO IMPERIAL, NESTOR SARMIENTO, FRANCO PALISOC, VIRGILIO DE GUZMAN, ALBERTO REYES, JESSIE PINILI, ROMULO AUGUIS, DOMINADOR RESURRECION III, RONNIE LAYGO, ROSAURO ROQUE, CLARENCE SORIANO, OCTAVO DEPAWA, CARLITO LA TORRE, SEVERNO ILANO, JR., DOMINGO CAJIPE, ALAN ALEGRE, RAMON MARTINEZ, MA. GILDA HERNANDEZ, EDNA P. VILLANUEVA, DOLLY S. CANU, MELQUIADES C. ATIENZA, ELIGIO P. VERA CRUZ, ROGER C. BAGAN, ABUNDIO M. CALISTE, Petitioners, vs. JUAN PONCE ENRILE, MAJ. GENERAL FIDEL V. RAMOS, BRIG. GENERAL PEDRO BALBANERO, COL. ABAD, COL. DAWIS, SERGIO APOSTOL, P/LT, RODOLFO M. GARCIA and JUDGE RICARDO TENSUAN, Respondents. This petition was originally filed on February 13, 1985 to secure the release of petitioners on habeas corpus and to permanently enjoin the City Fiscal of Quezon City from investigating charges of "Inciting to Sedition" against petitioners Lino Brocka, Benjamin Cervantes, Cosme Garcia and Rodolfo Santos, (hereafter Brocka, et al.). On learning that the corresponding informations for this offense has been filed by the City Fiscal against them on February 11, 1985, a supplemental petition was filed on February 19, 1985 (p.

51, Rollo) to implead the Presiding Judge, 1 and to enjoin the prosecution of Criminal Cases Nos. Q-38023, Q-38024 and Q-38025 (p. 349, Rollo) and the issuance of warrants for their arrests, including their arraignment. Since then President Ferdinand E. Marcos had ordered the provisional release of Brocka, et al., the issue on habeas corpus has become moot and academic (p. 396, Rollo). We shall thus focus on the question of whether or not the prosecution of the criminal cases for Inciting to Sedition may lawfully be enjoined.:cralaw Petitioners were arrested on January 28, 1985 by elements of the Northern Police District following the forcible and violent dispersal of a demonstration held in sympathy with the jeepney strike called by the Alliance of Concerned Transport Organization (ACTO). Thereafter, they were charged with Illegal Assembly in Criminal Cases Nos. 37783, 37787 and 37788 with Branch 108, Regional Trial Court, NCJR, Quezon City. 2 Except for Brocka, et al. who were charged as leaders of the offense of Illegal Assembly and for whom no bail was recommended, the other petitioners were released on bail of P3,000.00 each. Brocka, et al.'s provisional release was ordered only upon an urgent petition for bail for which daily hearings from February 1-7, 1985 were held. However, despite service of the order of release on February 9, 1985, Brocka, et al. remained in detention, respondents having invoked a Preventive Detention Action (PDA) allegedly issued against them on January 28, 1985 (p. 6, Rollo). Neither the original, duplicate original nor certified true copy of the PDA was ever shown to them (p. 367, Rollo). Brocka, et al. were subsequently charged on February 11, 1985 with Inciting to Sedition, docketed as Criminal Cases Nos. Q-38023, Q-38024 and Q-38025 (p. 349, Rollo), without prior notice to their counsel (p. 7, Rollo). The original informations filed recommended no bail (p. 349, Rollo). The circumstances surrounding the hasty filing of this second offense are cited by Brocka, et al. (quoting from a separate petition filed on their behalf in G.R. Nos. 69848-50 entitled "Sedfrey A. Ordoez vs. Col. Julian Arzaga, et al."), as follows: "x x x "6. The sham' character of the inquest examination concocted by all respondents is starkly bizarre when we consider that as early as 10:30 A.M. today, February 11, 1985, Benjamin Cervantes was able to contact undersigned petitioner by phone informing counsel that said Benjamin Cervantes and the 4 other persons who are the subjects of this petition will be brought before the Quezon City Fiscal at 2:30 for undisclosed reasons: subsequently, another phone call was received by petitioning counsel informing him that the appearance of Benjamin Cervantes et al. was to be at 2:00 P.M. When petitioning counsel arrived in the office of Assistant City Fiscal Arturo Tugonon, the complainants' affidavits had not yet been received by any of the panel of three assistant city fiscals, although the five persons under detention were already in the office of said assistant fiscal as early as 2:00 P.M. It was only at 3:00 when a representative of the military arrived bringing with him alleged statements of complainants against Lino Broka (sic) et al. for alleged inciting to sedition, whereupon undersigned counsel asked respondent Colonel Agapito Abad 'who ordered the detained persons to be brought to the office of Assistant Fiscal Arturo Tugonon since there were no charges on file;' and said Colonel Agapito Abad said aloud: 'I only received a telephone call from Colonel Arzaga about 11:00 A.M. to bring the detained persons today I am only the custodian.' At 3:15, petitioning counsel inquired from the Records Custodian when the charges against Lino Broka (sic) had been officially received and he was informed that the said charges were never coursed through the Records Office.

"7. Under the facts narrated above, respondents have conspired to use the strong arm of the law and hatched the nefarious scheme to deprive Lino Broka (sic) et al. the right to bail because the utterances allegedly constituting inciting to sedition under Article 142 of the Revised Penal Code are, except for varying nuances, almost verbatim the same utterances which are the subject of Criminal Cases No. 37783, 37787 and 37788 and for which said detained persons are entitled to be released on bail as a matter of constitutional right. Among the utterances allegedly made by the accused and which the respondents claimed to be violative of Article 142 of the Revised Penal Code are: 'Makiisa sa mga drivers, "Makiisa sa aming layunin, "Digmaang bayan ang sagot sa kahirapan,' Itigil ang pakikialam ng imperyalismo sa Pilipinas,' 'Rollback ng presyo ng langis sa 95 Centavos.' (See Annex B) "8. That when petitioning counsel and other members of the defense panel requested that they be given 7 days within which said counsel may confer with their clients the detained persons named above, the panel of assistant fiscals demanded that said detained persons should sign a 'waiver' of their rights under Article 125 of the Revised Penal Code as a condition for the grant of said request, which is a harassing requirement considering that Lino Broka (sic) et al. were already under the detention, albeit illegally, and they could not have waived the right under Rule 125 which they did not enjoy at the time the ruling was made by the panel of assistant city fiscals." (pp. 4-6, Rollo in G.R. 69848-50). They were released provisionally on February 14, 1985, on orders of then President F. E. Marcos. The circumstances of their release are narrated in Our resolution dated January 26, 1985, as quoted in the Solicitor General's Manifestation as follows: "G.R. Nos. 69848-50 (Sedfrey A. Ordoez, Petitioner, vs. Col. Julian Arzaga, et al., Respondents). Petitioner Sedfrey A. Ordoez filed this petition for habeas corpus in behalf of Lino Brocka, Benjamin Cervantes, Cosme Garcia, Alexander Luzano, and Rodolfo Santos, who were all detained under a Preventive Detention Action (PDA) issued by then President Ferdinand E. Marcos on January 28, 1985. They were charged in three separate informations of the crime of illegal assembly under Art. 146, paragraph 3 of the Revised Penal Code, as amended by PD 1834. On February 7, 1985, the Honorable Miriam Defensor Santiago, Regional Trial Judge of Quezon City, issued a resolution in the above criminal cases, directing the release of the five accused on bail of P6,000.00 for each of them, and from which resolution the respondent fiscals took no appeal. Immediately thereafter, the accused filed their respective bail bonds. This notwithstanding, they continued to be held in detention by order of the respondent colonels; and on February 11, 1985, these same accused were 'reinvestigated,' this time on charges of 'inciting to sedition' ** under Art. 142 of the Revised Penal Code, following which corresponding cases were filed. The respondents complied with Our resolution requiring them, inter alia, to make a RETURN of the writ of habeas corpus. In their RETURN, it appeared that all the accused had already been released, four of them on February 15, 1985 and one February 8, 1985. The petitioner, nevertheless, argued that the petition has not become moot and academic because the accused continue to be in the custody of the law under an invalid charge of inciting to sedition." (p. 395, Rollo). Hence, this petition. Brocka, et al. contend that respondents' manifest bad faith and/or harassment are sufficient bases for enjoining their criminal prosecution, aside from the fact that the second offense of inciting to sedition is illegal, since it is premised on one and the same act of attending and participating in the ACTO jeepney strike. They maintain that while there may be a complex crime from a single act (Art. 48, RTC), the law does not allow the splitting of

a single act into two offenses and filing two informations therefor, further, that they will be placed in double jeopardy. The primary issue here is the legality of enjoining the criminal prosecution of a case, since the two other issues raised by Brocka, et al. are matters of defense against the sedition charge. We rule in favor of Brocka, et al. and enjoin their criminal prosecution for the second offense of inciting to sedition. Indeed, the general rule is that criminal prosecution may not be restrained or stayed by injunction, preliminary or final. There are however exceptions, among which are: "a. To afford adequate protection to the constitutional rights of the accused (Hernandez vs. Albano, et al., L-19272, January 25, 1967, 19 SCRA 95); "b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions (Dimayuga, et al. vs. Fernandez, 43 Phil. 304; Hernandez vs. Albano, supra; Fortun vs. Labang, et al., L-38383, May 27, 1981, 104 SCRA 607); "c. When there is a pre-judicial question which is sub judice (De Leon vs. Mabanag, 70 Phil. 202); "d. When the acts of the officer are without or in excess of authority (Planas vs. Gil, 67 Phil. 62); "e. Where the prosecution is under an invalid law, ordinance or regulation (Young vs. Rafferty, 33 Phil. 556; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 389); "f. When double jeopardy is clearly apparent (Sangalang vs. People and Avendia, 109 Phil. 1140); "g. Where the court has no jurisdiction over the offense (Lopez vs. City Judge, L-25795, October 29, 1966, 18 SCRA 616); "h. Where it is a case of persecution rather than prosecution (Rustia vs. Ocampo, CA-G.R. No. 4760, March 25, 1960); "i. Where the charges are manifestly false and motivated by the lust for vengeance (Recto vs. Castelo, 18 L.J. [1953], cited in Raoa vs. Alvendia, CA-G.R. No. 30720-R, October 8, 1962; Cf, Guingona, et al vs. City Fiscal, L-60033, April 4, 1984, 128 SCRA 577); and "j. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied (Salonga vs. Pao, et al., L-59524, February 18, 1985, 134 SCRA 438). "7. Preliminary injunction has been issued by the Supreme Court to prevent the threatened unlawful arrest of petitioners (Rodriguez vs. Castelo, L-6374, August 1, 1958)." (cited in Regalado, Remedial Law Compendium, p. 188, 1988 Ed.) In the petition before Us, Brocka, et al. have cited the circumstances to show that the criminal proceedings had become a case of persecution, having been undertaken by state officials in bad faith.: nad Respondents, on the other hand, had invoked a PDA in refusing Brocka, et al.'s release from detention (before their release on orders of then Pres. Marcos). This PDA was, however, issued on January 28, 1985, but was invoked only on February 9, 1985 (upon receipt of the trial court's order of release). Under the guidelines issued, PDAs shall be invoked within 24 hours (in Metro Manila) or 48 hours (outside Metro Manila). (Ilagan v.

Enrile, G.R. No. 70748, October 28, 1985, 139 SCRA 349). Noteworthy also is Brocka, et al.'s claim that, despite subpoenas for its production, the prosecution merely presented a purported xerox copy of the invoked PDA (par. 4, Counter-Rejoinder, p. 367, Rollo). The foregoing circumstances were not disputed by the Solicitor General's office. In fact they found petitioner's plight "deplorable" (par. 51, Manifestation, p. 396, Rollo). The hasty filing of the second offense, premised on a spurious and inoperational PDA, certainly betrays respondent's bad faith and malicious intent to pursue criminal charges against Brocka, et al. We have expressed Our view in the Ilagan case that "individuals against whom PDAs have been issued should be furnished with the original, and the duplicate original, and a certified true copy issued by the official having official custody of the PDA, at the time of the apprehension" (supra, p. 369). We do not begrudge the zeal that may characterize a public official's prosecution of criminal offenders. We, however, believe that this should not be a license to run roughshod over a citizen's basic constitutional lights, such as due process, or manipulate the law to suit dictatorial tendencies. We are impelled to point out a citizen's helplessness against the awesome powers of a dictatorship. Thus, while We agree with the Solicitor General's observation and/or manifestation that Brocka, et al. should have filed a motion to quash the information, We, however, believe that such a course of action would have been a futile move, considering the circumstances then prevailing. Thus, the tenacious invocation of a spurious and inoperational PDA and the sham and hasty preliminary investigation were clear signals that the prosecutors intended to keep Brocka, et al. in detention until the second offense of "Inciting to Sedition" could be facilitated and justified without need of issuing a warrant of arrest anew. As a matter of fact the corresponding informations for this second offense were hastily filed on February 11, 1985, or two days after Brocka, et al.'s release from detention was ordered by the trial judge on February 9, 1985. Constitutional rights must be upheld at all costs, for this gesture is the true sign of democracy. These may not be set aside to satisfy perceived illusory visions of national grandeur.: nad In the case of J. Salonga v. Cruz Pao, We point out: "Infinitely more important than conventional adherence to general rules of criminal procedure is respect for the citizen's right to be free not only from arbitrary arrest and punishment but also from unwarranted and vexatious prosecution . . ." (G.R. No. L-59524, February 18, 1985, 134 SCRA 438-at p. 448). We, therefore, rule that where there is manifest bad faith that accompanies the filing of criminal charges, as in the instant case where Brocka, et al. were barred from enjoying provisional release until such time that charges were filed, and where a sham preliminary investigation was hastily conducted, charges that are filed as a result should lawfully be enjoined. ACCORDINGLY, the petition is hereby GRANTED. The trial court is PERMANENTLY ENJOINED from proceeding in any manner with the cases subject of the petition. No costs. SO ORDERED. G.R. No. L-53373 June 30, 1987

MARIO FL. CRESPO, petitioner, vs. HON. LEODEGARIO L. MOGUL, Presiding Judge, CIRCUIT CRIMINAL COURT OF LUCENA CITY, 9th Judicial Dist., THE PEOPLE OF THE PHILIPPINES, represented by the SOLICITOR GENERAL, RICARDO BAUTISTA, ET AL., respondents. The issue raised in this ease is whether the trial court acting on a motion to dismiss a criminal case filed by the Provincial Fiscal upon instructions of the Secretary of Justice to whom the case was elevated for review, may refuse to grant the motion and insist on the arraignment and trial on the merits. On April 18, 1977 Assistant Fiscal Proceso K. de Gala with the approval of the Provincial Fiscal filed an information for estafa against Mario Fl. Crespo in the Circuit Criminal Court of Lucena City which was docketed as Criminal Case No. CCCIX-52 (Quezon) '77.1 When the case was set for arraigment the accused filed a motion to defer arraignment on the ground that there was a pending petition for review filed with the Secretary of Justice of the resolution of the Office of the Provincial Fiscal for the filing of the information. In an order of August 1, 1977, the presiding judge, His Honor, Leodegario L. Mogul, denied the motion. 2 A motion for reconsideration of the order was denied in the order of August 5, 1977 but the arraignment was deferred to August 18, 1977 to afford nine for petitioner to elevate the matter to the appellate court. 3 A petition for certiorari and prohibition with prayer for a preliminary writ of injunction was filed by the accused in the Court of Appeals that was docketed as CA-G.R. SP No. 06978. 4 In an order of August 17, 1977 the Court of Appeals restrained Judge Mogul from proceeding with the arraignment of the accused until further orders of the Court. 5 In a comment that was filed by the Solicitor General he recommended that the petition be given due course. 6 On May 15, 1978 a decision was rendered by the Court of Appeals granting the writ and perpetually restraining the judge from enforcing his threat to compel the arraignment of the accused in the case until the Department of Justice shall have finally resolved the petition for review. 7 On March 22, 1978 then Undersecretary of Justice, Hon.Catalino Macaraig, Jr., resolving the petition for review reversed the resolution of the Office of the Provincial Fiscal and directed the fiscal to move for immediate dismissal of the information filed against the accused. 8 A motion to dismiss for insufficiency of evidence was filed by the Provincial Fiscal dated April 10, 1978 with the trial court, 9 attaching thereto a copy of the letter of Undersecretary Macaraig, Jr. In an order of August 2, 1978 the private prosecutor was given time to file an opposition thereto. 10On November 24, 1978 the Judge denied the motion and set the arraigniment stating: ORDER For resolution is a motion to dismiss this rase filed by the procuting fiscal premised on insufficiency of evidence, as suggested by the Undersecretary of Justice, evident from Annex "A" of the motion wherein, among other things, the Fiscal is urged to move for dismissal for the reason that the check involved having been issued for the payment of a pre-existing obligation the Hability of the drawer can only be civil and not criminal. The motion's thrust being to induce this Court to resolve the innocence of the accused on evidence not before it but on that adduced before the Undersecretary of Justice, a matter that not only disregards the requirements of due process but also erodes the Court's independence and integrity, the motion is considered as without merit and therefore hereby DENIED. WHEREFORE, let the arraignment be, as it is hereby set for December 18, 1978 at 9:00 o'clock in the moming.

SO ORDERED. 11 The accused then filed a petition for certiorari, prohibition and mandamus with petition for the issuance of preliminary writ of prohibition and/or temporary restraining order in the Court of Appeals that was docketed as CA-G.R. No. SP-08777. 12 On January 23, 1979 a restraining order was issued by the Court of Appeals against the threatened act of arraignment of the accused until further orders from the Court. 13 In a decision of October 25, 1979 the Court of Appeals dismissed the petition and lifted the restraining order of January 23, 1979. 14 A motion for reconsideration of said decision filed by the accused was denied in a resolution of February 19, 1980. 15 Hence this petition for review of said decision was filed by accused whereby petitioner prays that said decision be reversed and set aside, respondent judge be perpetually enjoined from enforcing his threat to proceed with the arraignment and trial of petitioner in said criminal case, declaring the information filed not valid and of no legal force and effect, ordering respondent Judge to dismiss the said case, and declaring the obligation of petitioner as purely civil. 16 In a resolution of May 19, 1980, the Second Division of this Court without giving due course to the petition required the respondents to comment to the petition, not to file a motiod to dismiss, within ten (10) days from notice. In the comment filed by the Solicitor General he recommends that the petition be given due course, it being meritorious. Private respondent through counsel filed his reply to the comment and a separate conunent to the petition asking that the petition be dismissed. In the resolution of February 5, 1981, the Second Division of this Court resolved to transfer this case to the Court En Banc. In the resolution of February 26, 1981, the Court En Banc resolved to give due course to the petition. Petitioner and private respondent filed their respective briefs while the Solicitor General filed a Manifestation in lieu of brief reiterating that the decision of the respondent Court of Appeals be reversed and that respondent Judge be ordered to dismiss the information. It is a cardinal principle that an criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal. 17 The institution of a criminal action depends upon the sound discretion of the fiscal. He may or may not file the complaint or information, follow or not fonow that presented by the offended party, according to whether the evidence in his opinion, is sufficient or not to establish the guilt of the accused beyond reasonable doubt. 18 The reason for placing the criminal prosecution under the direction and control of the fiscal is to prevent malicious or unfounded prosecution by private persons. 19 It cannot be controlled by the complainant. 20 Prosecuting officers under the power vested in them by law, not only have the authority but also the duty of prosecuting persons who, according to the evidence received from the complainant, are shown to be guilty of a crime committed within the jurisdiction of their office. 21 They have equally the legal duty not to prosecute when after an investigation they become convinced that the evidence adduced is not sufficient to establish a prima facie case. 22 It is through the conduct of a preliminary investigation 23 that the fiscal determines the existence of a puma facie case that would warrant the prosecution of a case. The Courts cannot interfere with the fiscal's discretion and control of the criminal prosecution. It is not prudent or even permissible for a Court to compel the fiscal to prosecute a proceeding originally initiated by him on an information, if he finds that the evidence relied upon by him is insufficient for conviction. 24 Neither has the Court any power to order the fiscal to prosecute or file an information within a certain period of time, since this would interfere with the fiscal's discretion and control of criminal prosecutions. 25 Thus, a fiscal who asks for the dismissal of the case for insufficiency of evidence has authority to do so, and Courts that grant the same commit no error. 26 The fiscal may re-investigate a case and subsequently move for the dismissal should the re-investigation show either that the defendant is innocent or that his guilt may not be established beyond reasonable doubt. 27 In a clash of views between the judge who did not investigate

and the fiscal who did, or between the fiscal and the offended party or the defendant, those of the Fiscal's should normally prevail. 28 On the other hand, neither an injunction, preliminary or final nor a writ of prohibition may be issued by the courts to restrain a criminal prosecution 29 except in the extreme case where it is necessary for the Courts to do so for the orderly administration of justice or to prevent the use of the strong arm of the law in an op pressive and vindictive manner. 30 However, the action of the fiscal or prosecutor is not without any limitation or control. The same is subject to the approval of the provincial or city fiscal or the chief state prosecutor as the case maybe and it maybe elevated for review to the Secretary of Justice who has the power to affirm, modify or reverse the action or opinion of the fiscal. Consequently the Secretary of Justice may direct that a motion to dismiss the rase be filed in Court or otherwise, that an information be filed in Court. 31 The filing of a complaint or information in Court initiates a criminal action. The Court thereby acquires jurisdiction over the case, which is the authority to hear and determine the case. 32 When after the filing of the complaint or information a warrant for the arrest of the accused is issued by the trial court and the accused either voluntarily submited himself to the Court or was duly arrested, the Court thereby acquired jurisdiction over the person of the accused. 33 The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists warranting the prosecution of the accused is terminated upon the filing of the information in the proper court. In turn, as above stated, the filing of said information sets in motion the criminal action against the accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the case, at such stage, the permission of the Court must be secured. After such reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for appropriate action. 34 While it is true that the fiscal has the quasi judicial discretion to determine whether or not a criminal case should be filed in court or not, once the case had already been brought to Court whatever disposition the fiscal may feel should be proper in the rase thereafter should be addressed for the consideration of the Court, 35 The only qualification is that the action of the Court must not impair the substantial rights of the accused. 36 or the right of the People to due process of law. 36a Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the fiscal or a review by the Secretary of Justice whereby a motion to dismiss was submitted to the Court, the Court in the exercise of its discretion may grant the motion or deny it and require that the trial on the merits proceed for the proper determination of the case. However, one may ask, if the trial court refuses to grant the motion to dismiss filed by the fiscal upon the directive of the Secretary of Justice will there not be a vacuum in the prosecution? A state prosecutor to handle the case cannot possibly be designated by the Secretary of Justice who does not believe that there is a basis for prosecution nor can the fiscal be expected to handle the prosecution of the case thereby defying the superior order of the Secretary of Justice. The answer is simple. The role of the fiscal or prosecutor as We all know is to see that justice is done and not necessarily to secure the conviction of the person accused before the Courts. Thus, in spite of his opinion to the contrary, it is the duty of the fiscal to proceed with the presentation of evidence of the prosecution to the Court to enable the Court to arrive at its own independent judgment as to whether the accused should be convicted or acquitted. The fiscal should not shirk from the responsibility of appearing for the People of the Philippines even under such circumstances much less should he abandon the prosecution of the case leaving it to the hands of a private prosecutor for then the entire proceedings will be null and void. 37 The least that the fiscal should do is to continue to appear for the prosecution although he may turn over the presentation of the evidence to the private prosecutor but still under his direction and control. 38

The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation. In order therefor to avoid such a situation whereby the opinion of the Secretary of Justice who reviewed the action of the fiscal may be disregarded by the trial court, the Secretary of Justice should, as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has already been filed in Court. The matter should be left entirely for the determination of the Court. WHEREFORE, the petition is DISMISSED for lack of merit without pronouncement as to costs. SO ORDERED. G.R. No. 109036 July 5, 1995 BARTOLOME F. MERCADO, petitioner, vs. The Honorable COURT OF APPEALS, FOURTH DIVISION, The Honorable CESAR C. PERALEJO, Presiding Judge of the Regional Trial Court, Branch 98, Quezon City and the Honorable CITY PROSECUTOR of Quezon City, respondents. This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court of the Decision of the Court of Appeals dated January 13, 1993 in CA-G.R. SP No. 25630 and its Resolution dated February 16, 1993, denying reconsideration thereof. I Petitioner is the accused in Criminal Case No. Q-91-20150 for violation of B.P. Blg. 22 (Bouncing Check Law) before the Regional Trial Court, Branch 98, Quezon City. Petitioner moved to defer his arraignment on the ground that he was not notified of the preliminary investigation. He claimed that the private complainant deliberately provided a wrong address in the issuance of the subpoena to him. He was thus prevented from submitting his counter-affidavit, which if considered, would have prevented the filing of the criminal case against him. Petitioner alleged that in the hearing of July 10, 1991, the trial court granted his motion to defer the arraignment and ordered the remand of the case for reinvestigation. However, in the order that was issued, the trial court only directed the prosecution to comment on the motion. Petitioner moved to cancel his arraignment scheduled on July 30, 1991. On said date, his motion to defer the arraignment was denied and upon his refusal to enter a plea, respondent judge entered for him a plea of "not guilty." Petitioner filed a petition for prohibition and mandamus with the Court of Appeals to prevent respondent judge from proceeding with the trial. In its Decision dated January 13, 1993, the appellate court dismissed the petition on the following grounds: (1) the remedy of prohibition was not proper in the case; (2) there was an actual preliminary investigation conducted, where the prosecution sufficiently

established probable cause against petitioner notwithstanding his lack of notice; and (3) the presence of the accused was not a requisite to the validity of the preliminary investigation. It further ruled that the defenses invoked by petitioner could be best ventilated in the trial. Petitioner sought a reconsideration of the decision but the same was denied. In the instant petition, petitioner raises the following questions of law: (1) Is a preliminary investigation conductedex-parte by reason of the lack of notice to the respondent valid, where such omission is due to the deliberate misinformation of the complainant regarding the address of the respondent? and (2) Is the remedy of prohibition proper in case of a denial of a motion to suspend the arraignment? In his comment, the City Prosecutor denied that the subpoena was sent to the wrong address. He claimed that the subpoena was sent to the actual residence of petitioner at that time but the same was returned unserved. In fact, in the official receipt of his cash bond (Rollo, p. 51), petitioner acknowledged his address as "6-E Reyes St., Gloria Heights Subdivision, Antipolo, Rizal," which was the same address contained in the subpoena (Rollo, p. 52). The City Prosecutor further alleged that the presence of petitioner was not indispensable to the validity of the preliminary investigation, as long as efforts were exerted to notify him and he was given an opportunity to controvert the evidence against him. II We see no merit in the petition. Petitioner was not denied of his right to a preliminary investigation. It is uncontroverted that a subpoena was sent to his given address but it was returned unserved. Petitioner did not dispute that the address appearing in the official receipt of his cash bond was his address. The purpose of a preliminary investigation is for the investigating prosecutor to determine if a crime has been committed. A review of the evidence is thus necessary to establish probable cause and if the evidence so warrants, the investigating prosecutor is duty bound to file the corresponding information (Cruz, Jr. v. People, 233 SCRA 439 [1994]). It was established by the complainant that petitioner issued a check which was dishonored because the account had been closed (Rollo, p. 50). The evidence satisfies the finding of probable cause. It must be borne in mind that the preliminary investigation is not the proper forum for an exhaustive production of evidence (Cruz, Jr. v. People,supra). Moreover, we see no irregularity in the ex-parte conduct of the proceedings. We had occasion to rule that preliminary investigations can be conducted ex-parte if the respondent can not be subpoenaed or does not appear after due notice (New Rules on Criminal Procedure, Rule 112, Section 3(d); Cf. Rodriguez v. Sandiganbayan, 120 SCRA 659 [1983]). We reiterate our ruling in Rodis, Sr. v. Sandiganbayan, 166 SCRA 618 (1988), that the New Rules on Criminal Procedure "does not require as a condition sine qua non to the validity of the proceedings [in the preliminary investigation] the presence of the accused for as long as efforts to reach him were made, and an opportunity to controvert the evidence of the complainant is accorded him. The obvious purpose of the rule is to block attempts of unscrupulous respondents to thwart the prosecution of offenses by hiding themselves or by employing dilatory tactics." As to the second issue, we have ruled that an injunction will not generally lie to restrain a criminal action (Paderanga v. Drilon, 196 SCRA 86 [1991]; Brocka v. Enrile, 192 SCRA 183 [1990]; Crespo v. Mogul, 151 SCRA 462 [1987]). In the Brocka case, we laid the following exceptions to the rule: (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 lust for vengeance; and (10) when there is clearly no prima faciecase against the accused and a motion to quash on that ground has been denied. Petitioner's case does not fall within any of the exceptions. WHEREFORE, the petition is DENIED. SO ORDERED

G.R. No. L-38204 September 24, 1991 THE MUNICIPALITY OF SOGOD, petitioner, vs. HON. AVELINO S. ROSAL, as Judge of the Court of First instance of Southern Leyte, Branch III, THE PROVINCIAL BOARD OF SOUTHERN LEYTE, HON. SALVACION O. YNIGUEZ, in her capacity as Governor of Southern Leyte and the MUNICIPALITY OF BONTOC, respondents. G.R. No. 38205 September 24, 1991 THE MUNICIPALITY OF SOGOD, petitioner, vs. HON. AVELINO S. ROSAL, as Judge of the Court of First Instance of Southern Leyte, Branch III and the Municipality of Bontoc, respondents. This refers to two (2) petitions for certiorari under Rule 65 of the Rules of Court seeking to annul and set aside the accused orders of respondent judge which dismissed the complaints filed with the trial court, as having been issued with grave abuse of discretion, and to order the same respondent to assume jurisdiction and proceed with the determination of the cases on the merits. The antecedent facts of each case are as follows: G.R. No. 38204 On June 15, 1950, Congress passed Republic Act No. 522 creating the municipality of Bontoc, formerly a barrio of the municipality of Sogod in the province of Leyte, which shall be composed of the barrios of Bontoc, Divisoria, Onion, Pacu, Beniton, Catmon, Hilaan, Taa, Sta. Cruz, Mahayahay and their corresponding sitios. A boundary dispute however, later arose between the municipality of Bontoc and the municipality of Sogod with the latter claiming that the former exercised jurisdiction not only over the barrios abovementioned but also over other ten (10) barrios allegedly belonging to Sogod. On June 17, 1952, the Provincial Board of Leyte issued Resolution No. 617 directing the holding of a plebiscite among the barrios of Pangi, Taa part of Sta. Cruz, Tuburan, Laogawan and their corresponding sitios. The purpose of the plebiscite is to determine whether the people in these barrios would like to remain with the municipality of Sogod or with Bontoc. The plebiscite was conducted on August 1, 1952, and the results thereof show that more votes were cast in favor of Sogod than those in favor of Bontoc. On April 4, 1959, the Provincial Board of Leyte issued Resolution No. 519 recommending to the President of the Philippines and/or to the Congress of the Philippines that Republic Act 522 be amended so as to include in said Act creating the municipality of Bontoc, the following barrios claimed by Sogod which are in the heart of Bontoc but not included in said law, namely: Baugo, Himakilo, Esperanza, Hibagwan, Pamahawan, Mahayahay, Bunga, Da-o and Maoylab The Board also recommended that a

law be enacted annexing to the municipality of Sogod the following barrios which are very near Sogod and are claimed by the latter but are included in the law creating Bontoc, namely: Laogawan, Taa Tuburan, Sta. Cruz and Pangi he board further recommended that the boundary line between the two municipalities be placed at Granada Creek. On December 28, 1959, Carlos P. Garcia, then President of the Philippines, promulgated Executive Order No. 368, which approved the recommendation of the provincial board of Leyte, and reconstituted the barrios and sitios which shag compose the municipalities of Bontoc and Sogod. The executive order also specified Granada Creek as the boundary line separating Bontoc and Sogod. However, on July 14, 1960, the President of the Philippines, thru then Executive Secretary Castillo sent a telegram to the Provincial Board of Southern Leyte which states as follows: BY DIRECTION OF PRESIDENT PLEASE SUSPEND IMPLEMENTATION OF EXECUTIVE ORDER 368 SERIES 1959 RECONSTITUTION (sic) BARRIOS AND SITIOS TO COMPOSE MUNICIPALITIES OF SOGOD AND BONTOC AND READJUSTING TERRITORIES SAID MUNICIPALITIES UNTIL FURTHER ADVISE STOP TO DETERMINE TRUE WISHES OF INHABITANTS PLEASE SUPERVISE HOLDING OF PLEBISCITE IN BARRIO AND SITIOS AFFECTED ADVISING THIS OFFICE IMMEDIATELY OF RESULT. SEC. CASTILLO (P. 20, Rollo) On July 18, 1960, the Provincial Board of Southern Leyte passed Resolution No. 62 suspending the implementation of Executive Order 368. The Board also created a committee to conduct the holding of a plebiscite in the barrios and sitios affected by Executive Order 368 and to finally settle the boundary dispute. On June 24, 1970, the municipality of Sogod filed Civil Case No. R-1706 for certiorari and prohibition with the Court of First Instance of Southern Leyte (now Regional Trial Court), to enjoin the provincial board and provincial governor from taking cognizance of the long pending boundary dispute between the two municipalities and to enjoin the municipality of Bontoc from exercising territorial jurisdiction over the barrios of Pangi, Taa Casao, Sta. Cruz, Tuburan and Laogawan all allegedly belonging to the municipality of Sogod. On August 31, 1973, the trial court dismissed the action for lack of jurisdiction over the subject matter of the case. On December 17, 1973, the trial court denied petitioner's motion for reconsideration. Hence, this petition was filed alleging that the respondent judge acted with grave abuse of discretion in dismissing the case. G.R. No. 38205 On December 7, 1970, the municipality of Sogod filed Civil Case No. R-1707 with the Court of First Instance of Southern Leyte (now Regional Trial Court) for recovery of taxes with receivership against the municipality of Bontoc. The complaint alleged that the municipality of Bontoc, without any legal basis, exercised jurisdiction not only over the barrios enumerated in Republic Act No. 522 but also over ten (10) barrios belonging to the complainant municipality of Sogod. The complaint prayed that the municipality of Bontoc be ordered to pay Sogod onehalf of the total amount of taxes collected by the former from the inhabitants of the aforesaid barrios during the period from 1950 to 1959. On August 31, 1973, the trial court issued an order dismissing Civil Case No. R-1707 on the ground that the right to collect taxes would ultimately depend on Civil Case No. R-1706, which was already

dismissed for lack of jurisdiction and that the issue as to boundary dispute have not yet been decided in a plebiscite for that purpose. Hence this petition for certiorari under Rule 65 seeking to annul the above order of the judge. The common issue to be resolved in these petitions is whether or not the trial court gravely erred in dismissing the two cases for lack of jurisdiction. Jurisdiction has been defined as the power and authority to hear and determine a cause or the right to act in a case (Herrera v. Barrette and Joaquin, 25 Phil. 245; Conchada v. Director of Prisons, 31 Phil. 4). Jurisdiction is conferred only by the Constitution or by law. It cannot be fixed by the will of the parties nor can it be acquired or diminished by any act of the parties. In determining whether a case lies within or outside the jurisdiction of a court, reference to the applicable statute on the matter is indispensable. It is a settled rule that jurisdiction of a court is determined by the statute in force at the time of commencement of action (Tolentino v. Social Security Commission, L-28870, September 6, 1985, 138 SCRA 428; Lee v. Municipal Trial Court of Legaspi City Br. 1, No. 68789, November 10, 1986, 145 SCRA 408; Dela Cruz v. Moya, No. 65192, April 27, 1988, 160 SCRA 838). At the time the civil actions were filed with the trial court by petitioner municipality in 1970, the applicable laws necessary for the determination of the question of whether the trial court has the authority to decide on the municipal boundary dispute are the following: 1) Republic Act No. 522, creating the municipality of Bontoc; 2) Republic Act No. 3590, the Revised Barrio Charter, revising Republic Act No. 2370; and 3) Section 2167 of the Revised Administrative Code of 1917. Republic Act No. 522 defines the jurisdiction of the municipality of Bontoc. It clearly enumerates the barrios which shag compose the municipality of Bontoc, to wit: Bontoc, Divisoria, Onion, Pacu, Beniton, Catmon, Hilaan, Taa Sta. Cruz, Mahayahay and their corresponding sitios. This means that all the other barrios in Southern Leyte which are not included in the law creating the municipality of Bontoc are deemed to remain under the jurisdiction of the municipality of Sogod. Although the said law is clear as to which territories shall belong to each municipality, the law is silent however, as to the specifications of the boundary line which will separate the two municipalities. With the passage of Republic Act No. 2370 which took effect on January 1, 1960 as revised by Republic Act No. 3590 on June 22, 1963, known as the Revised Barrio Charter, barrios may be created and their boundaries altered only by Act of Congress or by the corresponding provincial board upon petition of the majority of the voters in the area affected and the recommendation of the municipality in which the proposed barrios are situated. Thus, the provincial board was empowered under the Id law to determine and alter boundaries of municipalities and barrios. Further, the law then vested the right to settle boundary disputes between municipalities on the provincial board pursuant to Section 2167 of the Revised Administrative Code, which reads: SEC. 2167. Municipal boundary disputes. How settled Disputes as to jurisdiction of municipal governments over places or barrios shall be decided by the province boards of the provinces in which such municipalities are situated, after an investigation at which the municipalities concerned shall be duly heard. From the decision of the provincial board appeal may be taken by the municipality aggrieved to the Secretary of the Interior (now the Office of the Executive Secretary), whose decision shall be final. Where the places or barrios in dispute are claimed by municipalities situated in different provinces, the provincial boards of the provinces concerned shall come to an agreement if possible, but, in the event of their failing to agree, an appeal shall be had to the Secretary of Interior (Executive Secretary), whose decision shall be final. (Municipality of Hinabangan v. Municipality of Wright, 107 Phil. 394).

It is clear from the aforestated legal provision that the authority to hear and resolve municipal boundary disputes belongs to the provincial boards and not to the trial courts. The decisions of the boards are then appealable to the Executive Secretary. Records in the instant case show that when petitioner municipality filed the civil actions in 1970 before the trial court, the provincial board of Southern Leyte had not yet conducted a plebiscite as ordered by the Executive Department in 1960 or rendered any order settling the dispute. Petitioner municipality should have elevated the matter of delay to the then Secretary of Interior (now Executive Secretary) for action instead of bringing it to the trial court. Although existing laws then vested on the provincial board the power to determine or even alter municipal boundaries, the Secretary of Interior or the Executive Department for that matter, was not precluded during that time from taking necessary steps for the speedy settlement of the boundary dispute. InPelaez v. Auditor General, No. L-23825, December 24, 1965, 15 SCRA 569, which applied Republic Act No. 2370, known as the Barrio Charter, We held that the power to fix common boundaries in order to avoid or settle conflicts of jurisdiction between adjoining municipalities may also partake of an administrative nature that can be decided by the administrative department, involving as it does, the adoption of means and ways to carry into effect the laws creating said municipalities. Considering the foregoing, We find that the trial court acted correctly in dismissing the cases for want of jurisdiction and in allowing the provincial board to continue with the pending investigation and proceedings on the boundary dispute. It is worthy to note however, that up to this time, the controversy between these two municipalities has not been settled. However, this dispute has already been overtaken by events, namely, the enactment of the 1987 Constitution and the New Local Government Code on February 10, 1983, which imposed new mandatory requirements and procedures on the fixing of boundaries between municipalities. The 1987 Constitution now mandates that no province, city, municipality or barangay may be created, divided, merged, abolished or its boundary substantially altered except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. Hence, any alteration or modification of the boundaries of the municipalities shall only be by a law to be enacted by Congress subject to the approval by a majority of the votes cast in a plebiscite in the barrios affected (Section 134, Local Government Code). Thus, under present laws, the function of the provincial board to fix the municipal boundaries are now strictly limited to the factual determination of the boundary lines between municipalities, to be specified by natural boundaries or by metes and bounds in accordance with the laws creating said municipalities. In view of the length of time that this municipal boundary dispute had remained unresolved, due to the possibility that Republic Act No. 522 has lost its practicability or has become obsolete considering the geographical location of barrios in Southern Leyte, especially those enumerated in Republic Act No. 522, which apparently, are much nearer to Sogod than to Bontoc, this Court finds that this matter should be referred to the Congress of the Philippines for whatever legislative action that may be necessary under the circumstances. ACCORDINGLY, the petitions are DISMISSED. The assailed orders of the respondent judge dated August 31, 1973 and December 17, 1973 in G.R. No. L-38204 and orders dated August 31, 1973 and December 17, 1973 in G.R. No. L-38205 are AFFIRMED. SO ORDERED.