Bonifacio et al.

, vs RTC Makati and Jessie John Gimenez GR No 184800

Bonifacio et al., vs RTC Makati and Jessie John Gimenez

GR No 184800 May 5, 2010

Facts:
Jessie John Gimenez (Gimenez) filed in behalf of Yuchenco Family of Yuchenco Group of
Companies (YGC) and Malayan Insurance Co., (Malayan), a criminal complain for 13 counts of
libel under Art. 355 in relation to Art. 353 of the RPC against the members of Paents Enabling
Parents Coalition Inc (PEPCI), a group of discontented planholders of Pacific Plans, Inc (PPI)
which is owned by the Yuchengcos, for they previously purchased traditional pre-need
educational plans but were unable to collect thereon or avail of the benefits of such after PPI, due
to liquidity concerns, filed for corporate rehabilitation with prayer of suspension of payments.

That PEPCI members owns and moderates a website and a blog with web domains:
www.pacificnoplan.blogspot.com, www.pepcoalition.com, and no2pep2010@yahoogroups.com.
Gimenez alleged that upon accessing such websites in Makati he red various article containing
highly derogatory statements and false accusations attacking the Yuchengco Family.

Since the article was first published and accessed by Gimenez at Makati City, pursuant to Art.
360 of the RPC as amended by RA 4363.

Issue:
How should an online article be treated in relation to a written defamation/libel with respect to
jurisdiction of the case provided by law specifically Art. 360 of the RPC?

Ruling:
Art. 360 of the RPC provides:

Any person who shall publish, exhibit or cause the publication or exhibition of any defamation
in writing or by similar means, shall be responsible for the same.
xxxx
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 RTC 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 oofense. xxxx

That venue of libel cases where the complainant is a private individual is limited only to:

1. Where the complainant actually resides at the time of the commission of the offense; or
2. Where the alleged defamatory article was printed and first published.
If the circumstances as to where the libel was printed and first published was used as basis for
the venue of the action, the Information must allege with particularity where the defamatory
article was printed and first published. The same measures cannot be reasonably expected when
it pertains to defamatory material appearing on a website on the internet as there would be no
way of determining the point of its printing and first publication. TO give credence to Gimenezs
argument would spawn the very ills that the amendment to Art. 360 of the RPC sought to
discourage and prevent. It would do chaos wherein website author, writer, blogger or anyone
who post messages in websites could be sued for libel anywhere in the Philippines.

The information is quashed and the case is dismissed.

 Union Bank vs People
The Antecedents

Tomas was charged in court for perjury under Article 183 of the Revised
Penal Code (RPC) for making a false narration in a Certificate against Forum
Shopping. The Information against her reads:

That on or about the 13th day of March 2000 in the City of Makati, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, did then and there willfully, unlawfully and feloniously make untruthful
statements under oath upon a material matter before a competent person
authorized to administer oath which the law requires to wit: said accused stated in
the Verification/Certification/Affidavit of merit of a complaint for sum of money
with prayer for a writ of replevin docketed as [Civil] Case No. 342-00 of the
Metropolitan Trial Court[,] Pasay City, that the Union Bank of the Philippines has
not commenced any other action or proceeding involving the same issues in
another tribunal or agency, accused knowing well that said material statement was
false thereby making a willful and deliberate assertion of falsehood.[2]

The accusation stemmed from petitioner Union Banks two (2) complaints
for sum of money with prayer for a writ of replevin against the spouses Eddie and
Eliza Tamondong and a John Doe. The first complaint, docketed as Civil Case
No. 98-0717, was filed before the RTC, Branch 109, Pasay City on April 13, 1998.
The second complaint, docketed as Civil Case No. 342-000, was filed on March
15, 2000 and raffled to the MeTC, Branch 47, Pasay City. Both complaints showed
that Tomas executed and signed the Certification against Forum Shopping.
Accordingly, she was charged of deliberately violating Article 183 of the RPC by
falsely declaring under oath in the Certificate against Forum Shopping in the
second complaint that she did not commence any other action or proceeding
involving the same issue in another tribunal or agency.
 Tomas filed a Motion to Quash,[3] citing two grounds. First, she argued that
the venue was improperly laid since it is the Pasay City court (where the
Certificate against Forum Shopping was submitted and used) and not the MeTC-
Makati City (where the Certificate against Forum Shopping was subscribed) that
has jurisdiction over the perjury case. Second, she argued that the facts charged do
not constitute an offense because: (a) the third element of perjury the willful and
deliberate assertion of falsehood was not alleged with particularity without
specifying what the other action or proceeding commenced involving the same
issues in another tribunal or agency; (b) there was no other action or proceeding
pending in another court when the second complaint was filed; and (c) she was
charged with perjury by giving false testimony while the allegations in the
Information make out perjury by making a false affidavit.

The MeTC-Makati City denied the Motion to Quash, ruling that it has
jurisdiction over the case since the Certificate against Forum Shopping was
notarized in Makati City.[4] The MeTC-Makati City also ruled that the allegations
in the Information sufficiently charged Tomas with perjury.[5] The MeTC-
Makati City subsequently denied Tomas motion for reconsideration.[6]

The petitioners filed a petition for certiorari before the RTC-Makati City to
annul and set aside the MeTC-Makati City orders on the ground of grave abuse of
discretion. The petitioners anchored their petition on the rulings in United States v.
Canet[7] and Ilusorio v. Bildner[8] which ruled that venue and jurisdiction should be
in the place where the false document was presented.

The Assailed RTC Decision

In dismissing the petition for certiorari, the RTC-Makati City held:

[I]nsofar as the petitioners stance is concerned[,] the more recent case of [Sy Tiong
Shiou v. Sy] (GR Nos. 174168 & 179438, March 30, 2009) however, reaffirms
what has been the long standing view on the venue with respect to perjury cases.
In this particular case[,] the high court reiterated the rule that the criminal action
 shall be instituted and tried in the court of the municipality or territory where the
offense was committed, or where any of its essential ingredients occurred. It went
on to declare that since the subject document[,] the execution of which was the
subject of the charge[,] was subscribed and sworn to in Manila[,] then the court of
the said territorial jurisdiction was the proper venue of the criminal action[.]

xxxx

x x x Given the present state of jurisprudence on the matter, it is not amiss to state
that the city court of Makati City has jurisdiction to try and decide the case for
perjury inasmuch as the gist of the complaint itself which constitute[s] the charge
against the petitioner dwells solely on the act of subscribing to a false
certification. On the other hand, the charge against the accused in the case of
Ilusorio v. Bildner, et al., based on the complaint-affidavits therein[,] was not
simply the execution of the questioned documents but rather the introduction of
the false evidence through the subject documents before the court of Makati City.
[9]
(emphasis ours)

The RTC-Makati City ruled that the MeTC-Makati City did not commit
grave abuse of discretion since the order denying the Motion to Quash was based
on jurisprudence later than Ilusorio. The RTC-Makati City also observed that the
facts in Ilusorio are different from the facts of the present case. Lastly, the RTC-
Makati City ruled that the Rule 65 petition was improper since the petitioners can
later appeal the decision in the principal case. The RTC-Makati City subsequently
denied the petitioners motion for reconsideration.[10]
 The Petition

The petitioners pray that we reverse the RTC-Makati City decision and quash the
Information for perjury against Tomas. The petitioners contend that
the Ilusorio ruling is more applicable to the present facts than our ruling in Sy
Tiong Shiou v. Sy Chim.[11] They argued that the facts in Ilusorio showed that the
filing of the petitions in court containing the false statements was the essential
ingredient that consummated the perjury. In Sy Tiong, the perjurious statements
were made in a General Information Sheet (GIS) that was submitted to the
Securities and Exchange Commission (SEC).

Interestingly, Solicitor General Jose Anselmo I. Cadiz shared the petitioners view.
In his Manifestation and Motion in lieu of Comment (which we hereby treat as the
Comment to the petition), the Solicitor General also relied on Ilusorio and opined
that the lis mota in the crime of perjury is the deliberate or intentional giving of
false evidence in the court where the evidence is material. The Solicitor General
observed that the criminal intent to assert a falsehood under oath only became
manifest before the MeTC-Pasay City.

The Issue

The case presents to us the issue of what the proper venue of perjury under Article
183 of the RPC should be Makati City, where the Certificate against Forum
Shopping was notarized, or Pasay City, where the Certification was presented to
the trial court.
 The Courts Ruling

We deny the petition and hold that the MeTC-Makati City is the proper venue
and the proper court to take cognizance of the perjury case against the
petitioners.

Venue of Action and Criminal Jurisdiction

Venue is an essential element of jurisdiction in criminal cases. It determines
not only the place where the criminal action is to be instituted, but also the court
that has the jurisdiction to try and hear the case. The reason for this rule is two-
fold. First, the jurisdiction of trial courts is limited to well-defined territories such
that a trial court can only hear and try cases involving crimes committed within its
territorial jurisdiction.[12] Second, laying the venue in the locus criminis is
grounded on the necessity and justice of having an accused on trial in the
municipality of province where witnesses and other facilities for his defense are
available.[13]

Unlike in civil cases, a finding of improper venue in criminal cases

carries jurisdictional consequences. In determining the venue where the criminal
action is to be instituted and the court which has jurisdiction over it, Section 15(a),
Rule 110 of the 2000 Revised Rules of Criminal Procedure provides:

(a) Subject to existing laws, the criminal action shall be instituted and tried in the
court or municipality or territory where the offense was committed or where
any of its essential ingredients occurred. [emphasis ours]

The above provision should be read in light of Section 10, Rule 110 of the
2000 Revised Rules of Criminal Procedure which states:

Place of commission of the offense. The complaint or information is sufficient if

it can be understood from its allegations that the offense was committed or some
of its essential ingredients occurred at some place within the jurisdiction of the
 court, unless the particular place where it was committed constitutes an essential
element of the offense charged or is necessary for its identification.

Both provisions categorically place the venue and jurisdiction over criminal
cases not only in the court where the offense was committed, but also where any of
its essential ingredients took place. In other words, the venue of
action and of jurisdiction are deemed sufficiently alleged where the Information
states that the offense was committed or some of its essential ingredients occurred
at a place within the territorial jurisdiction of the court.

Information Charging Perjury

Section 5, Rule 7 of the 1997 Rules of Civil Procedure, as amended,

contains the requirement for a Certificate against Forum Shopping. The Certificate
against Forum Shopping can be made either by a statement under oath in the
complaint or initiatory pleading asserting a claim or relief; it may also be in a
sworn certification annexed to the complaint or initiatory pleading. In both
instances, the affiant is required to execute a statement under oath before a duly
commissioned notary public or any competent person authorized to administer oath
that: (a) he or she has not theretofore commenced any action or filed any claim
involving the same issues in any court, tribunal or quasi-judicial agency and, to the
best of his or her knowledge, no such other action or claim is pending therein; (b)
if there is such other pending action or claim, a complete statement of the present
status thereof; and (c) if he or she should thereafter learn that the same or similar
action or claim has been filed or is pending, he or she shall report that fact within
five days therefrom to the court wherein his or her aforesaid complaint or initiatory
pleading has been filed. In relation to the crime of perjury, the material matter in a
Certificate against Forum Shopping is the truth of the required declarations which
is designed to guard against litigants pursuing simultaneous remedies in different
fora.[14]
 In this case, Tomas is charged with the crime of perjury under Article 183 of
the RPC for making a false Certificate against Forum Shopping. The elements of
perjury under Article 183 are:

(a) That the accused made a statement under oath or executed an

affidavit upon a material matter.

(b) That the statement or affidavit was made before a competent

officer, authorized to receive and administer oath.

(c) That in the statement or affidavit, the accused made a willful

and deliberate assertion of a falsehood.

(d) That the sworn statement or affidavit containing the falsity

is required by law or made for a legal purpose.[15] (emphasis
ours)

Where the jurisdiction of the court is being assailed in a criminal case on the
ground of improper venue, the allegations in the complaint and information must
be examined together with Section 15(a), Rule 110 of the 2000 Revised Rules of
Criminal Procedure. On this basis, we find that the allegations in the Information
sufficiently support a finding that the crime of perjury was committed by Tomas
within the territorial jurisdiction of the MeTC-Makati City.

The first element of the crime of perjury, the execution of the subject
Certificate against Forum Shopping was alleged in the Information to have been
committed in MakatiCity. Likewise, the second and fourth elements, requiring the
Certificate against Forum Shopping to be under oath before a notary public, were
also sufficiently alleged in the Information to have been made in Makati City:

That on or about the 13th day of March 2000 in the City of Makati, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there willfully, unlawfully and feloniously
make untruthful statements under oath upon a material matter before a competent
 person authorized to administer oath which the law requires to wit: said accused
stated in the Verification/Certification/Affidavit x x x.[16]

We also find that the third element of willful and deliberate falsehood
was also sufficiently alleged to have been committed in Makati City,
not Pasay City, as indicated in the last portion of the Information:

[S]aid accused stated in the Verification/Certification/Affidavit of merit of a

complaint for sum of money with prayer for a writ of replevin docketed as [Civil]
Case No. 342-00 of the Metropolitan Trial Court[,] Pasay City, that the Union
Bank of the Philippines has not commenced any other action or proceeding
involving the same issues in another tribunal or agency,accused knowing well that
said material statement was false thereby making a willful and deliberate assertion
of falsehood.[17] (underscoring ours)

Tomas deliberate and intentional assertion of falsehood was allegedly shown

when she made the false declarations in the Certificate against Forum Shopping
before a notary public in Makati City, despite her knowledge that the material
statements she subscribed and swore to were not true. Thus, Makati City is the
proper venue and MeTC-Makati City is the proper court to try the perjury case
against Tomas, pursuant to Section 15(a), Rule 110 of the 2000 Revised Rules of
Criminal Procedure as all the essential elements constituting the crime of perjury
were committed within the territorial jurisdiction of Makati City, not Pasay City.
Referral to the En Banc

The present case was referred to the En Banc primarily to address the seeming
conflict between the division rulings of the Court in the Ilusorio case that is cited
as basis of this petition, and the Sy Tiong case that was the basis of the
assailed RTC-Makati City ruling.

The Cited Ilusorio and Sy Tiong Cases

The subject matter of the perjury charge in Ilusorio involved false

statements contained in verified petitions filed with the court for the issuance of a
new owners duplicate copies of certificates of title. The verified petitions
containing the false statements were subscribed and sworn to in Pasig City, but
were filed in Makati City and Tagaytay City. The question posed was: which court
(Pasig City, Makati City and/or Tagaytay City) had jurisdiction to try and hear the
perjury cases?

We ruled that the venues of the action were

in Makati City and Tagaytay City, the places where the verified petitions were
filed. The Court reasoned out that it was only upon filing that the intent to assert an
alleged falsehood became manifest and where the alleged untruthful statement
found relevance or materiality. We cited as jurisprudential authority the case
of United States. v. Caet[18] which ruled:

It is immaterial where the affidavit was subscribed and sworn, so long as it

appears from the information that the defendant, by means of such affidavit,
"swore to" and knowingly submitted false evidence, material to a point at issue in
a judicial proceeding pending in the Court of First Instance of Iloilo Province. The
gist of the offense charged is not the making of the affidavit inManila, but
the intentional giving of false evidence in the Court of First Instance of Iloilo
Province by means of such affidavit. [emphasis and underscoring deleted]
 In Sy Tiong, the perjured statements were made in a GIS which was
subscribed and sworn to in Manila. We ruled that the proper venue for the perjury
charges was inManila where the GIS was subscribed and sworn to. We held that
the perjury was consummated in Manila where the false statement was made. As
supporting jurisprudence, we cited the case of Villanueva v. Secretary of
Justice[19] that, in turn, cited an American case entitled U.S. v. Norris.[20] We ruled
in Villanueva that

Perjury is an obstruction of justice; its perpetration well may affect the

dearest concerns of the parties before a tribunal. Deliberate material falsification
under oath constitutes the crime of perjury, and the crime is complete when a
witness' statement has once been made.

The Crime of Perjury: A Background

To have a better appreciation of the issue facing the Court, a look at the
historical background of how the crime of perjury (specifically, Article 183 of the
RPC) evolved in our jurisdiction.

The RPC penalizes three forms of false testimonies. The first is false testimony for
and against the defendant in a criminal case (Articles 180 and 181, RPC);
the second is false testimony in a civil case (Article 182, RPC); and the third is
false testimony in other cases (Article 183, RPC). Based on the Information filed,
the present case involves the making of an untruthful statement in an affidavit
on a material matter.
These RPC provisions, however, are not really the bases of the rulings cited
by the parties in their respective arguments. The cited Ilusorio ruling, although
issued by this Court in 2008, harked back to the case of Caet which was decided in
1915, i.e., before the present RPC took effect.[21] Sy Tiong, on the other hand, is a
2009 ruling that citedVillanueva, a 2005 case that in turn cited United States v.
Norris, a 1937 American case. Significantly, unlike Canet, Sy Tiong is entirely
based on rulings rendered after the present RPC took effect.[22]
 The perjurious act in Caet consisted of an information charging perjury
through the presentation in court of a motion accompanied by a false sworn
affidavit. At the time the Caet ruling was rendered, the prevailing law on perjury
and the rules on prosecution of criminal offenses were found in Section 3, Act No.
1697 of the Philippine Commission, and in Subsection 4, Section 6 of General
Order No. 58[23] for the procedural aspect.

Section 3 of Act No. 1697 reads:

Sec. 3. Any person who, having taken oath before a competent tribunal,
officer, or person, in any case in which a law of the Philippine Islands authorizes
an oath to be administered, that he will testify, declare, depose, or certify truly, or
that any written testimony, declaration, disposition, or certificate by him
subscribed is true, willfully and contrary to such oath states or subscribes any
material matter which he does not believe to be true, is guilty of perjury, and shall
be punished by a fine of not more than two thousand pesos and by imprisonment
for not more than five years; and shall moreover, thereafter be incapable of
holding any public office or of giving testimony in any court of the Philippine
Islands until such time as the judgment against him is reversed.
This law was copied, with the necessary changes, from Sections 5392 [24] and
5393[25] of the Revised Statutes of the United States.[26] Act No. 1697 was intended
to make the mere execution of a false affidavit punishable in our jurisdiction.[27]

In turn, Subsection 4, Section 6 of General Order No. 58 provided that the

venue shall be the court of the place where the crime was committed.

As applied and interpreted by the Court in Caet, perjury was committed by

the act of representing a false document in a judicial proceeding.[28] The venue of
action was held by the Court to be at the place where the false document was
presented since the presentation was the act that consummated the crime.
The annotation of Justices Aquino and Grio-Aquino in their textbook on the
[29]
RPC interestingly explains the history of the perjury provisions of the present
RPC and traces as well the linkage between Act No. 1697 and the present Code. To
quote these authors:[30]

Art. 180 was taken from art. 318 of the Old Penal Code and art. 154 of Del
Pans Proposed Correctional Code, while art. 181 was taken from art. 319 of the
old Penal Code and Art. 157 of Del Pans Proposed Correctional Code. Said arts.
318 and 319, together with art. 321 of the old Penal Code, were impliedly
repealed by Act 1697, the Perjury Law, passed on August 23, 1907, which in turn
was expressly repealed by the Administrative Code of 1916, Act 2657. In view of
the express repeal of Act 1697, arts. 318 and 321 of the old Penal Code were
deemed revived. However, Act 2718 expressly revived secs. 3 and 4 of the
Perjury Law. Art. 367 of the Revised Penal Code repealed Act Nos. 1697 and
2718.

It should be noted that perjury under Acts 1697 and 2718 includes false
testimony, whereas, under the Revised Penal Code, false testimony includes
perjury. Our law on false testimony is of Spanish origin, but our law on perjury
(art. 183 taken from sec. 3 of Act 1697) is derived from American statutes. The
provisions of the old Penal Code on false testimony embrace perjury committed in
court or in some contentious proceeding, while perjury as defined in Act 1697
includes the making of a false affidavit. The provisions of the Revised Penal Code
on false testimony are more severe and strict than those of Act 1697 on perjury.
[italics ours]

With this background, it can be appreciated that Article 183 of the RPC
which provides:

The penalty of arresto mayor in its maximum period to prision correccional in its
minimum period shall be imposed upon any person, who knowingly makes
untruthful statements and not being included in the provisions of the next
preceding articles, shall testify under oath, or make an affidavit, upon any
material matter before a competent person authorized to administer an oath in
cases in which the law so requires. [emphasis supplied; emphases ours]

in fact refers to either of two punishable acts (1) falsely testifying under oath in a
proceeding other than a criminal or civil case; and (2) making a false affidavit
before a person authorized to administer an oath on any material matter where the
law requires an oath.
 As above discussed, Sy Tiong decided under Article 183 of the RPC
essentially involved perjured statements made in a GIS that was subscribed and
sworn to in Manila and submitted to the SEC in Mandaluyong City. Thus, the case
involved the making of an affidavit, not an actual testimony in a proceeding that is
neither criminal nor civil. From this perspective, the situs of the oath, i.e., the place
where the oath was taken, is the place where the offense was committed. By
implication, the proper venue would have been the City of Mandaluyong the site of
the SEC had the charge involved an actual testimony made before the SEC.

In contrast, Caet involved the presentation in court of a motion supported

and accompanied by an affidavit that contained a falsity. With Section 3 of Act No.
1697 as basis, the issue related to the submission of the affidavit in a judicial
proceeding. This came at a time when Act No. 1697 was the perjury law, and made
no distinction between judicial and other proceedings, and at the same time
separately penalized the making of false statements under oath (unlike the present
RPC which separately deals with false testimony in criminal, civil and other
proceedings, while at the same time also penalizing the making of false
affidavits). Understandably, the venue should be the place where the submission
was made to the court or the situs of the court; it could not have been the place
where the affidavit was sworn to simply because this was not the offense charged
in the Information.

The case of Ilusorio cited the Caet case as its authority, in a situation where
the sworn petitions filed in court for the issuance of duplicate certificates of title
(that were allegedly lost) were the cited sworn statements to support the charge of
perjury for the falsities stated in the sworn petitions. The Court ruled that the
proper venue should be the Cities of Makati and Tagaytay because it was in the
courts of these cities where the intent to assert an alleged falsehood became
manifest and where the alleged untruthful statement finds relevance or materiality
in deciding the issue of whether new owners duplicate copies of the [Certificate of
Condominium Title] and [Transfer Certificates of Title] may issue. [31] To the Court,
whether the perjurious statements contained in the four petitions were subscribed
and sworn in Pasig is immaterial, the gist of the offense of perjury being the
intentional giving of false statement,[32] citing Caet as authority for its statement.

The statement in Ilusorio may have partly led to the present confusion on
venue because of its very categorical tenor in pointing to the considerations to be
made in the determination of venue; it leaves the impression that the place where
the oath was taken is not at all a material consideration, forgetting that Article 183
of the RPC clearly speaks of two situations while Article 182 of the RPC likewise
applies to false testimony in civil cases.

The Ilusorio statement would have made perfect sense had the basis for the
charge been Article 182 of the RPC, on the assumption that the petition itself
constitutes a false testimony in a civil case. The Caet ruling would then have been
completely applicable as the sworn statement is used in a civil case, although no
such distinction was made underCaet because the applicable law at the time (Act
No. 1697) did not make any distinction.

If Article 183 of the RPC were to be used, as what in fact appears in

the Ilusorio ruling, then only that portion of the article, referring to the making of
an affidavit, would have been applicable as the other portion refers to false
testimony in other proceedings which a judicial petition for the issuance of a new
owners duplicate copy of a Certificate of Condominium Title is not because it is a
civil proceeding in court. As a perjury based on the making of a false affidavit,
what assumes materiality is the site where the oath was taken as this is the place
where the oath was made, in this case, Pasig City.

Procedurally, the rule on venue of criminal cases has been subject to various
changes from the time General Order No. 58 was replaced by Rules 106 to 122 of
the Rules of Court on July 1, 1940. Section 14, Rule 106 of the Rules of Court
provided for the rule on venue of criminal actions and it expressly included, as
proper venue, the place where any one of the essential ingredients of the crime
took place. This change was followed by the passage of the 1964 Rules of Criminal
Procedure,[33] the 1985 Rules of Criminal Procedure,[34] and the 2000 Revised Rules
of Criminal Procedure which all adopted the 1940 Rules of Criminal Procedures
expanded venue of criminal actions. Thus, the venue of criminal cases is not only
in the place where the offense was committed, but also where any of its essential
ingredients took place.

In the present case, the Certification against Forum Shopping was made
integral parts of two complaints for sum of money with prayer for a writ of
replevin against the respondent spouses Eddie Tamondong and Eliza B.
Tamondong, who, in turn, filed a complaint-affidavit against Tomas for violation of
Article 183 of the RPC. As alleged in the Information that followed, the criminal
act charged was for the execution by Tomas of an affidavit that contained a
falsity.

Under the circumstances, Article 183 of the RPC is indeed the applicable
provision; thus, jurisdiction and venue should be determined on the basis of this
article which penalizes one who make[s] an affidavit, upon any material matter
before a competent person authorized to administer an oath in cases in which the
law so requires. The constitutive act of the offense is the making of an affidavit;
thus, the criminal act is consummated when the statement containing a falsity is
subscribed and sworn before a duly authorized person.

Based on these considerations, we hold that our ruling in Sy Tiong is more in

accord with Article 183 of the RPC and Section 15(a), Rule 110 of the 2000
Revised Rules of Criminal Procedure. To reiterate for the guidance of the Bar and
the Bench, the crime of perjury committed through the making of a false
affidavit under Article 183 of the RPC is committed at the time the affiant
subscribes and swears to his or her affidavit since it is at that time that all the
elements of the crime of perjury are executed. When the crime is committed
through false testimony under oath in a proceeding that is neither criminal nor
civil, venue is at the place where the testimony under oath is given. If in lieu of or
as supplement to the actual testimony made in a proceeding that is neither criminal
nor civil, a written sworn statement is submitted, venue may either be at the place
where the sworn statement is submitted or where the oath was taken as the taking
of the oath and the submission are both material ingredients of the crime
committed. In all cases, determination of venue shall be based on the acts alleged
in the Information to be constitutive of the crime committed.

WHEREFORE, premises considered, we hereby DENY the petition for

lack of merit. Costs against the petitioners.

People vs Grey
DECISION
NACHURA, J.:

Before this Court is a Petition for Review under Rule 45 of the Rules of
Court filed by the People of the Philippines, through the Office of the Solicitor
General (OSG), seeking the nullification of the Court of Appeals (CA) (Cebu City-
Eighteenth Division) Resolution[1] dated March 13, 2007, Decision[2] dated May 8,
2007, and Resolution[3]dated October 8, 2007, in CA-G.R. SP No. 02558,
entitled Mayor Joseph Jojo V. Grey and Francis B. Grey v. Hon. Roberto A.
Navidad, Presiding Judge of the Regional Trial Court of Calbayog City, Branch
32, and the People of the Philippines.

On December 11, 2006, an Information for Murder was filed against

respondent Joseph Grey, former Mayor of San Jorge, Samar; his son, respondent
Francis Grey; and two others for the death of Rolando Diocton, an employee of the
San Jorge municipal government, before the Regional Trial Court (RTC), Branch
41, Gandara, Samar. The Information was accompanied by other supporting
documents and a motion for the issuance of a warrant of arrest.[4]

Respondents filed a petition for review with the Secretary of Justice.

Meanwhile, RTC Branch 41 Presiding Judge Rosario Bandal denied the motion for
the issuance of a warrant of arrest. Judge Bandal found the prosecutions evidence
to be insufficient to link respondents to the crime charged. She directed the
prosecution to present, within five days, additional evidence that would show that
accused were the assailants or that they conspired, confederated, or helped in the
commission of the crime charged.[5]

The prosecution then filed an Omnibus Motion for Reconsideration and a

motion for the inhibition of Judge Bandal.[6] The judge inhibited herself but denied
the motion for reconsideration.[7]

Thereafter, the provincial prosecutor filed a petition for change of venue

before this Court, attaching thereto a letter from the victims wife expressing fear
for her life and that of the other witnesses.[8]
 The Secretary of Justice, in a Resolution dated January 4, 2007, dismissed
the petition for review and respondents counter charge of perjury. He found no
error to warrant the modification or reversal of the prosecutors resolution. The
Secretary of Justice ruled that the evidence adduced against respondents was
sufficient to establish probable cause for the offense charged. Respondents motion
for reconsideration was denied on January 30, 2007.[9]

Subsequently, the prosecution withdrew their motion for change of venue

before this Court, citing financial difficulties in bringing witnesses to Manila.
[10]
Respondents opposed the motion and prayed that all proceedings be suspended
until after the May 14, 2007 elections.[11]

However, on February 19, 2007, respondents filed their own petition for
change of venue before this Court, alleging that the presiding judge who took over
the case, Judge Roberto Navidad, was a pawn in the political persecution being
staged against them.[12] In its August 22, 2007 Resolution, this Court denied the
petition for lack of merit and directed Judge Navidad to hear the case with
dispatch.[13]

Accordingly, Judge Navidad proceeded with the preliminary inquiry on the

existence of probable cause, and, in an Order dated February 20, 2007, ruled that
the finding of probable cause was supported by the evidence on record. He then
issued warrants of arrest against respondents and all but one of their co-accused.[14]

Respondents filed a Petition[15] for Certiorari and Prohibition before the CA,
alleging that Judge Navidad gravely abused his discretion in issuing the February
20, 2007 Order, and seeking a temporary restraining order (TRO) and/or a writ of
preliminary injunction. They alleged that the filing of the murder charges against
them on the basis of perjured statements coming from their political opponents
supporters smacks of political harassment at its foulest form.[16] Respondents
pointed out that the criminal complaint was filed barely two months after Joseph
Grey declared his intentions to challenge incumbent Congressman Reynaldo S. Uy,
a former ally, in the May 2007 congressional elections. Likewise, respondents
claimed that one of the witnesses, Urien Moloboco, who executed an affidavit
before the Provincial Prosecutor, was the subject of an Alias Warrant of Arrest for
murder issued by the RTC of Gandara, Samar on June 26, 2006, and, hence, was a
fugitive from the law at the time of the filing of the criminal complaint against
respondents. Respondents maintain that the fact that Moloboco was not arrested
when he executed his affidavit before the prosecutor, spoke of the power and clout
of the witness protectors.[17]

The CA Eighteenth Division issued a TRO on March 13, 2007. [18] After oral
arguments, the CA issued a Decision[19] dated May 8, 2007, making the TRO
permanent, ordering that warrants of arrest be set aside, and dismissing the
criminal case without prejudice.

The CA held that Judge Navidad failed to abide by the constitutional

mandate for him to personally determine the existence of probable cause.
[20]
According to the CA, nowhere in the assailed Order did Judge Navidad state his
personal assessment of the evidence before him and the personal justification for
his finding of probable cause. It found that the judge extensively quoted from the
Joint Resolution of the Provincial Prosecutor and the Resolution of the Secretary of
Justice, and then adopted these to conclude that there was sufficient evidence to
support the finding of probable cause. The CA held that the Constitution
commands the judge to personally determine the existence of probable cause
before issuing warrants of arrest.[21]

Moreover, the CA also ruled that the Information was not supported by the
allegations in the submitted affidavits.[22] It pointed out that the Information
charged respondents as principals by direct participation, but the complaint-
affidavit and supporting affidavits uniformly alleged that respondents were not at
the scene of the shooting.[23] The CA further found that the allegations in the
complaint-affidavit and supporting affidavits were insufficient to establish
probable cause. It said that there was nothing in the affidavits to show acts that
would support the prosecutions theory that respondents were also charged as
principals by conspiracy.[24]

Petitioners motion for reconsideration of the CAs May 8, 2007 Decision was
denied in a Resolution dated October 8, 2007.[25] Hence, this petition for review.

Petitioner argues that respondents committed forum shopping, which would

warrant the outright dismissal of their petition below. Petitioner alleges that
respondents petition for change of venue before this Court and their petition for
prohibition before the CA actually involve the same subject matter, parties, and
issues that of enjoining Judge Navidad from proceeding with the trial of the
criminal case against them.[26] Moreover, these two proceedings have resulted in
conflicting decisions, with this Court resolving to proceed with the case and with
the CA enjoining the same.[27]

Petitioner also argues against the CAs ruling that Judge Navidad failed to
personally determine the existence of probable cause. It said that although the
judge adopted the findings of the prosecutors as to the sufficiency of evidence
constituting probable cause, the language of the Order clearly reflects that the
judge himself personally examined the records and found that there was probable
cause for the issuance of warrants of arrest. [28] Moreover, the judge was correct in
finding probable cause based on the sworn statements of the witnesses submitted to
the court.[29] Petitioner avers that the CA disregarded the fact that the Information
alleged conspiracy.[30] In any case, petitioner asserts that a perceived defect in the
Information is not jurisdictional as the same may be amended anytime before
arraignment or with leave of court after arraignment.[31]

Petitioner also claims that respondents had not shown any clear
and unmistakable right to the relief they sought. It said that there are more than
enough plain, speedy, and adequate remedies available to respondents. Their
constitutional rights are amply protected in the enforcement of the warrants of
arrest. They can likewise apply for bail or move to quash the allegedly defective
Information.[32]

Petitioner also argues that this Court has laid down the rule that criminal
prosecution cannot be enjoined, and any exception to this rule must be
convincingly established.[33] On the other hand, the comparative injury to the
People in permanently enjoining a criminal case is beyond any of respondents
speculative claim of injury.

Thus, petitioner is praying that the CAs May 8, 2007 Decision and October
8, 2007 Resolution be reversed and set aside, and the writ of injunction be
dissolved.[34]
 In their Comment, respondents assert that the trial court issued its February
20, 2007 Order in gross violation of the Constitution and prevailing jurisprudence
on the matter.[35] Respondents claim that the trial courts violation is evident in the
indecent haste with which it issued the Order and Warrants of Arrest, and in its
own admission in the Order itself. [36] Respondents also maintain that the trial court
acted whimsically, capriciously, and with grave abuse of discretion when it
concluded that there was probable cause to issue warrants of arrest against
respondents.[37] Respondents likewise assert that the trial court committed grave
abuse of discretion when it reversed the finding of Judge Bandal, who first heard
the case.[38]

The petition is impressed with merit.

Initially, we decide the issue of forum shopping raised by petitioner.

Petitioner maintains that respondents committed forum shopping when it filed a

petition for change of venue before this Court and a petition for prohibition before
the CA.

Forum shopping is an act of a party, against whom an adverse judgment or

order has been rendered in one forum, of seeking and possibly getting a favorable
opinion in another forum, other than by appeal or special civil action
for certiorari. It may also involve the institution of two or more actions or
proceedings grounded on the same cause on the supposition that one or the other
court would make a favorable disposition.[39]

Forum shopping exists where the elements of litis pendentia are present, and
where a final judgment in one case will amount to res judicata in the other. The
elements of forum shopping are: (a) identity of parties, or at least such parties as
would represent the same interest in both actions; (b) identity of rights asserted and
relief prayed for, the relief being founded on the same facts; and (c) identity of the
two preceding particulars such that any judgment rendered in the other action will,
regardless of which party is successful, amount to res judicata in the action under
consideration.[40]
 The elements of res judicita are: (a) the former judgment must be final; (b)
the court which rendered judgment had jurisdiction over the parties and the subject
matter; (c) it must be a judgment on the merits; and (d) there must be, between the
first and second actions, identity of parties, subject matter, and cause of action.[41]

A reexamination of the two actions in this case, in light of the foregoing

jurisprudence, is in order.

In the petition for change of venue filed on February 19, 2007, respondents prayed
for the transfer of the criminal case to any court in Metro Manila, [42] alleging that
the prosecution was politically motivated and designed to hamper the plan of
respondent Joseph Grey to run for a congressional seat in the May 2007 elections.
[43]
They contended that it would be extremely pernicious to the interest of justice if
trial of this case and (of) the other two cases are held in Samar, especially in the
City of Calbayog, where the said (Congressman) Reynaldo Uy is a resident and
absolutely wields power.[44] They also asked the Court to hold the proceedings in
abeyance until after the May 14, 2007 elections.

In its August 22, 2007 Resolution, the Court denied the petition for transfer of
venue for lack of merit. It also directed Judge Navidad to hear the case with
dispatch.[45]

On March 5, 2007, while their petition for change of venue was pending
before this Court, respondents filed a petition for certiorari before the CA. They
prayed, first, for the issuance of a TRO and/or a writ of preliminary injunction to
prohibit Judge Navidad from proceeding with Criminal Case No. 4916 and from
causing the implementation of the warrants of arrest against respondents; and
second, for the Court to set aside Judge Navidads February 20, 2007 Order and the
corresponding warrants he issued.[46] The TRO was granted on March 13, 2007,
and the CA Decision making the same injunction permanent and setting aside the
warrants of arrest was promulgated on May 8, 2007, a few days before the May 14,
2007 elections.

The CA correctly ruled that respondents were not guilty of forum shopping when
they filed the two actions. Respondents raised different issues and sought different
reliefs in the two actions, although both were grounded on the same set of facts.
 The issue in the petition for change of venue is whether the trial of the case
was to be moved to another court in light of respondents allegations that the same
was being used as a tool for their political persecution. On the other hand, the issue
in the petition for certiorari before the CA was whether Judge Navidad gravely
abused his discretion in issuing the February 20, 2007 Order and the warrants for
respondents arrest.

Thus, this Courts Resolution would not have amounted to res judicata that would
bar the petition for certiorari before the CA.

We now resolve the substantive issues.

Respondents, in their petition before the CA, questioned the alleged lack of
personal determination of probable cause by Judge Navidad in issuing the warrants
for their arrest.

Judge Navidads Order reads:

In this separate, independent constitutionally-mandated Inquiry

conducted for the purpose of determining the sufficiency of the evidence
constituting probable cause to justify the issuance of a Warrant of Arrest,
the Court perforce, made a very careful and meticulous and (sic)
review not only of the records but also the evidence adduced by the
prosecution, particularly the sworn statements/affidavits of Mario
Abella, Uriendo Moloboco and Edgar Pellina. [47]

The language of the Order clearly shows that the judge made his own personal
determination of the existence of probable cause by examining not only the
prosecutors report but also his supporting evidence, consisting mainly of the sworn
statements of the prosecutions witnesses.

It is well to remember that there is a distinction between the preliminary

inquiry which determines probable cause for the issuance of a warrant of arrest and
the preliminaryinvestigation proper which ascertains whether the offender should
be held for trial or be released. The determination of probable cause for purposes
of issuing the warrant of arrest is made by the judge. The preliminary investigation
proper whether or not there is reasonable ground to believe that the accused is
guilty of the offense charged is the function of the investigating prosecutor.[48]

The duty of the judge to determine probable cause to issue a warrant of

arrest is mandated by Article III, Section 2 of the Philippine Constitution:

Section 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.

In Soliven v. Makasiar,[49] the Court explained that this constitutional

provision does not mandatorily require the judge to personally examine the
complainant and her witnesses. Instead, he may opt to personally evaluate the
report and supporting documents submitted by the prosecutor or he may disregard
the prosecutors report and require the submission of supporting affidavits of
witnesses. Thus, in Soliven, we said:

What the Constitution underscores is the exclusive and personal

responsibility of the issuing judge to satisfy himself of the existence of
probable cause. In satisfying himself of the existence of probable cause
for the issuance of a warrant of arrest, the judge is not required to
personally examine the complainant and his witnesses. Following
established doctrine and procedure, he shall: (1) personally evaluate the
report and the supporting documents submitted by the fiscal regarding
the existence of probable cause and, on the basis thereof, issue a warrant
of arrest; or (2) if on the basis thereof he finds no probable cause, he may
disregard the fiscals report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a conclusion as to the
existence of probable cause.

Sound policy dictates this procedure, otherwise judges would by

unduly laden with the preliminary examination and investigation of
 criminal complaints instead of concentrating on hearing and deciding
cases filed before their courts.[50]

What the law requires as personal determination on the part of a judge is

that he should not rely solely on the report of the investigating prosecutor.[51] This
means that the judge should consider not only the report of the investigating
prosecutor but also the affidavit and the documentary evidence of the parties, the
counter-affidavit of the accused and his witnesses, as well as the transcript of
stenographic notes taken during the preliminary investigation, if any, submitted to
the court by the investigating prosecutor upon the filing of the Information.[52]

The Court has also ruled that the personal examination of the complainant
and his witnesses is not mandatory and indispensable in the determination of
probable cause for the issuance of a warrant of arrest. The necessity arises only
when there is an utter failure of the evidence to show the existence of probable
cause.[53] Otherwise, the judge may rely on the report of the investigating
prosecutor, provided that he likewise evaluates the documentary evidence in
support thereof.

Contrary to respondents claim, Judge Navidad did not gravely abuse his discretion
in issuing the same.

A perusal of the assailed Order bears out this fact.

It was only through a review of the proceedings before the prosecutor that
could have led Judge Navidad to determine that the accused were given the widest
latitude and ample opportunity to challenge the charge of Murder which resulted,
among others, (in) a filing of a counter-charge of Perjury.[54] Likewise, his personal
determination revealed no improper motive on the part of the prosecution and no
circumstance which would overwhelm the presumption of regularity in the
performance of official functions.[55] Thus, he concluded that the previous Order,
denying the motion for the issuance of warrants of arrest, was not correct.[56]
 These statements sufficiently establish the fact that Judge Navidad complied
with the constitutional mandate for personal determination of probable cause
before issuing the warrants of arrest.

The CA likewise overlooked a fundamental rule we follow in this jurisdiction. It is

an established doctrine that injunction will not lie to enjoin a criminal prosecution
because public interest requires that criminal acts be immediately investigated and
prosecuted for the protection of society.[57]

However, it is also true that various decisions of this Court have laid down
exceptions to this rule, among which are:

a. To afford adequate protection to the constitutional rights of the

accused (Hernandez v. 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. v.
Fernandez, 43 Phil. 304; Hernandez v. Albano, supra;Fortun v.
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 v. Mabanag, 70 Phil. 202);

d. When the acts of the officer are without or in excess of

authority (Planas v. Gil, 67 Phil. 62);

e. Where the prosecution is under an invalid law, ordinance or

regulation (Young v. Rafferty, 33 Phil. 556; Yu Cong Eng v. Trinidad, 47
Phil. 385, 389);

f. When double jeopardy is clearly apparent (Sangalang v. People

and Avendia, 109 Phil. 1140);

g. Where the court has no jurisdiction over the offense (Lopez v.

City Judge, L-25795, October 29, 1966, 18 SCRA 616);

h. Where there is a case of persecution rather than prosecution

(Rustia v. Ocampo, CA-G.R. No. 4760, March 25, 1960);
 i. Where the charges are manifestly false and motivated by the lust
for vengeance (Recto v. Castelo, 18 L.J. [1953], cited in Raoa v.
Alvendia, CA-G.R. No. 30720-R, October 8, 1962;Cf. Guingona, et al. v.
City Fiscal, L-60033, April 4, 1984, 128 SCRA 577); x x x

j. When there is clearly no prima facie case against the accused

and a motion to quash on that ground has been denied (Salonga v.
Pao, et al., L-59524, February 18, 1985, 134 SCRA 438)[; and]

[k.] Preliminary injunction has been issued by the Supreme Court

to prevent the threatened unlawful arrest of petitioners (Rodriguez v.
Castelo, L-6374, August 1, 1953).[58]

Respondents insisted that political persecution by their political rivals was the
underlying reason for the filing of criminal charges against them, and used this as
basis for asking the appellate court to stop the proceedings in the trial court.

Indeed, this Court has recognized that, in certain instances, political persecution or
political motives may have impelled the filing of criminal charges against certain
political rivals. But this Court has also ruled that any allegation that the filing of
the charges is politically motivated cannot justify the prohibition of a criminal
prosecution if there is otherwise evidence to support the charges.[59]

In this case, the judge, upon his personal examination of the complaint and
evidence before him, determined that there was probable cause to issue the
warrants of arrest after the provincial prosecution, based on the affidavits presented
by complainant and her witnesses, found probable cause to file the criminal
Information. This finding of the Provincial Prosecutor was affirmed by the
Secretary of Justice.

To establish political harassment, respondents must prove that the public

prosecutor, not just the private complainant, acted in bad faith in prosecuting the
case or has lent himself to a scheme that could have no other purpose than to place
respondents in contempt and disrepute.[60] It must be shown that the complainant
possesses the power and the influence to control the prosecution of cases.[61]
 Likewise, the allegation that the filing of the complaint was politically
motivated does not serve to justify the nullification of the informations where the
existence of such motive has not been sufficiently established nor substantial
evidence presented in support thereof.[62]

Other than their own self-serving claims, respondents have adduced absolutely no
proof of the perceived political persecution being waged by their rivals.
Respondents have not shown any evidence of such a grand design. They have not
alleged, much less proved, any ill motive or malice that could have impelled the
provincial prosecutor, the judge, and even the Secretary of Justice to have
respectively ruled in the way each of them did. In short, respondents are holding
tenuously only on the hope that this Court will take them at their word and grant
the relief they pray for. This Court, however, cannot anchor its ruling on mere
allegations.

Needless to say, a full-blown trial is to be preferred to ferret out the truth.

[63]
If, as respondents claim, there is no evidence of their culpability, then their
petition for bail would easily be granted. Thereafter, the credibility of the
prosecutions and the accuseds respective evidence may be tested during the trial. It
is only then that the guilt or innocence of respondents will be determined. Whether
the criminal prosecution was merely a tool for harassment or whether the
prosecutions evidence can pass the strict standards set by the law and withstand the
exacting scrutiny of the court will all be resolved at the trial of the case.

The criminal Information in this case was filed four years ago and trial has
yet to begin. The victims kin, indeed, all the parties, are awaiting its resolution.
Any further delay will amount to an injustice.

WHEREFORE, the foregoing premises considered, the Court of Appeals

Decision dated May 8, 2007 and Resolution dated October 8, 2007 in CA-G.R. SP
No. 02558 are hereby REVERSED and SET ASIDE, and the Permanent
Injunction is hereby DISSOLVED. The Order of
the Regional Trial Court of Calbayog City, Samar, dated February 20, 2007, is
hereby REINSTATED. The Regional Trial Court of Calbayog City, Samar,
is DIRECTED to proceed with hearing, and to decide Criminal Case No. 4916
with dispatch.
 SO ORDERED.

Subido
No. v. Sandiganbayan
122641;
Facts: January 20, 1997) (G.R.
On
Subido
June Jr.,
Commissioner
Immigration
Deportation
Parina,
while
their a 25,then
BID
official
in the 1992,
and
(BID)a the
of
specialBayani
and
performance Bureau
agent,
Reneof of
functions,
implemented
arrest
Maksimuk,
well
requiring
that
deportation
and issued
against
the a
knowing
Maksimuks
executory. BID
was warrant
Jamesandfully
J.
decision
This
not of
yetoffinal
resulted
Maksimuk
days,
injury.
Subido
charged
Detention
punished to
causing
and for
with
bythe a
Parinadetention
himperiod
undue
Arbitrary
defined
Article were
and
124 of43
of
the
their
a
that
the Revised
part,
Motion
jurisdiction
when
no tothe
Sandiganbayan
it was Penal
over petitioners
Quash,
filed, Code.
the For
filed
contending
had
caseno
Subido since
was
Parina
position
salary
27. was
grade not occupying
corresponding to a
Issue:
Whether
Sandiganbayan
jurisdiction or over
not the had
the case
Ruling:
Yes.
jurisdiction
virtue
7975, The of Sandiganbayan
which over the
Section 24ofof case
R.A. had
by
amended
1606
Section
1606
amended is Section
hereby
2: toSection
read further
4
as of P.D.
P.D.
follows: No.
No.
Subido
No.
Facts: v.
122641; Sandiganbayan
January 20, (G.R.
1997)
On
Subido June
Commissioner
Immigration
Deportation
Parina,
while
their Jr.,
a 25,
official
in BID
the then
1992,
and
(BID)a the
of
special
performanceBayani
and Bureau
agent,
Rene of of
functions,
implemented
arrest
Maksimuk,
well
requiring against
that
deportation
and executory.theissueda
knowing
Maksimuks
BID
was warrant
James
Thisand fully
decision
not J. of
yetoffinal
resulted
Maksimuk
days,
injury.
Subido
charged
Detention
punished andto
causing
with
byfor
the a
Parinadetention
himperiod
Arbitrary
defined
Article undue
were
and124 of 43
of
the
their
a
that
the Revised
Motion part,
jurisdiction
when
no tothe
Sandiganbayan
it was Penal
over petitioners
Quash,
filed, theCode.
contending
had
case
Subido For
no filed
since
was
longer
Parina
position
salary
27. was
part
grade not
of the
correspondingoccupying
service to anda
Issue:
Whether
Sandiganbayan
jurisdiction or over
not the had
the case
Ruling:
Yes.
jurisdiction
virtue
7975, The which
of Sandiganbayan
over
Section the
24ofof case
R.A. had
by
amended
1606
Section
1606
amended is Section
hereby
2: toSection
read further
4
as of P.D.
P.D.
follows: No.
No.
Subido
No.
Facts: v.
122641; Sandiganbayan
January 20, (G.R.
1997)
On
Subido June
Commissioner
Immigration
Deportation
Parina,
while
their Jr.,
a 25,
official
in BID
the then
1992,
and
(BID)a the
of
special
performanceBayani
and Bureau
agent,
Rene of of
functions,
implemented
arrest
Maksimuk,
well
requiring
and against
that
deportation
executory.theissuedaJames
knowing
Maksimuks
BID
was warrant
Thisandfully
decision
not J. of
yet final
resulted
Maksimuk
days,
injury.
Subido
charged
Detention
punished andto
causing
with
byfor
the a
Parinadetention
himperiod
Arbitrary
defined
Article undue
were
and124 of of 43
of
the
their
a
that
the Revised
Motion part,
jurisdiction
when
no Sandiganbayan
it was thePenal
to over petitioners
Quash,
filed, theCode.
contending
had
case
Subido For
no filed
since
was
longer
Parina
position
salary
27. was
part
grade not
of the
correspondingoccupying
service to anda
Issue:
Whether
Sandiganbayan
jurisdiction or over
not the had
the case
Ruling:
Yes.
jurisdiction
virtue
7975, The which
of Sandiganbayan
over
Section the
2 of case
R.A. had
by
amended
1606
Section
1606
amended
BAYANI is hereby
SUBIDO,2: Section
Section
JR.toandread
RENE 4
further of
4 of
as P.D.
P.D. No.
follows:
PARINA, petitioners, No.
vs. THE
HONORABLE SANDIGAN-BAYAN and THE PEOPLE OF THE
PHILIPPINES, respondents.

DECISION

DAVIDE, JR., J.:

In this petition for certiorari under Rule 65 of the Rules of Court, the
petitioners seek to set aside, on ground of grave abuse of discretion
amounting to lack of jurisdiction, the following acts of the respondent
Sandiganbayan in Criminal Case No. 22825: (a) the Resolution of 25 October
[1]

1995 which denied the petitioners Motion to Quash of 28 August 1995 and
Supplementary Motion to Quash of 7 October 1995; (b) the Order of 10 [2]

November 1995 which denied the petitioners motion for reconsideration; and
(c) the Order of 10 November 1995 which entered a plea of not guilty for the
[3]

petitioners and set pre-trial on 12 January 1996.

 In Criminal Case No. 22825, the petitioners were charged with Arbitrary
Detention, defined and penalized by Article 124 of the Revised Penal Code
(RPC), under an information dated 17 July 1995 (but filed on 28 July 1995),
the accusatory portion of which reads as follows:

That on or about June 25, 1992, or sometime subsequent thereto, in Mandaluyong,

Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, Bayani Subido, Jr., being then a Commissioner of the Bureau
of Immigration and Deportation (BID) and accused Rene Parina, being then a BID
Special Agent, while in the performance of their official functions, and conspiring and
confederating with each other, did then and there wilfully, unlawfully and feloniously
cause the issuance and implementation of a warrant of arrest dated June 25, 1992
against James J. Maksimuk, said accused knowing fully well that the BID Decision
dated June 6, 1991, requiring Maksimuk's deportation has not as yet become final and
executory considering the pendency of a Motion for Reconsideration, resulting in the
detention of the latter for a period of forty-three (43) days and, thus, causing him
undue injury.

CONTRARY TO LAW. [4]

The arraignment was originally set for 28 August 1995. [5]

On 28 August 1995, however, the petitioners filed a Motion to Quash,

[6]
contending that in view of the effectivity of R.A. No. 7975 on 6 May 1995,
[7]

amending 4 of P.D. No. 1606, the Sandiganbayan had no jurisdiction over

[8]

both the offense charged and the persons of the accused. They argued that:
(1) Arbitrary Detention did not fall within Chapter II, 2, Title VII of the RPC, but
within 1, Chapter 1, Title II (Crimes Against the Fundamental Laws of the
State), hence, not covered by R.A. No. 7975 and, therefore, the case should
have been filed with the Regional Trial Court (RTC) of Manila; (2) R.A. No.
7975 should be given prospective application and at the time the case was
filed, petitioner Subido was already a private person since he was separated
from the service on 28 February 1995; while petitioner Parina did not hold a
position corresponding to salary grade 27; and (3) penal laws must be strictly
construed against the State.
 In compliance with the order of the Sandiganbayan, the prosecution filed
its Opposition to the Motion to Quash on 28 September 1995. It contended
[9]

that it was clear from 4(b) of R.A. No. 7975 that the Sandiganbayan had
jurisdiction over both the offense charged and the persons of the accused
considering that the basis of its jurisdiction xxx is the position of the accused
in the government service when the offense charged was committed and not
the nature of the offense charged, provided the said offense committed by the
accused was in the exercise of his duties and in relation to his office. The fact
then that accused Subido was already a private individual was of no moment.

In a Supplement to the Motion to Quash filed on 9 October 1995, the

[10]

petitioners further asserted that: (1) the allegations in the information were
vague; (2) under 1, Rule VIII of Memorandum Order (MO) No. 04-92 (Rules of
Procedure to Govern Deportation Proceedings), the grant or denial of bail to
an alien in a deportation proceeding was discretionary upon the
Commissioner, hence could not be subject to a charge of arbitrary detention;
(3) petitioner Subido was separated from the service before the effectivity of
R.A. No. 7975, hence retroactive application thereof would be prejudicial to
him; and (4) at the time the information was filed, petitioner Parina was not
occupying a position corresponding to salary grade 27 or higher, as
prescribed by R.A. No. 6758. [11]

In its Rejoinder filed on 20 October 1995, the prosecution maintained that

[12]

with 4 of MO No. 04-92, Salazar v. Achacoso, and Gatchalian v. CID, the

[13] [14]

only instance when an alien facing deportation proceedings could be arrested

by virtue of a warrant of arrest was when the Commissioner issued the
warrant to carry out a final order of deportation, which was absent in this case
due to the pendency of the motion for reconsideration timely filed. It further
reiterated that the basis of the Sandiganbayans jurisdiction over the case was
the position of the accused when the crime was committed, not when the
information was filed; in any event, petitioner Subidos position as a
Commissioner of the Bureau of Immigration was classified even higher than
grade 27 under the Compensation and Classification Act of 1989.

In its Resolution of 25 October 1995, the Sandiganbayan denied the

[15]

petitioners Motion to Quash and the Supplement thereto, ruling:

1. [T]he jurisdiction of the Sandiganbayan remains not only over the specific offenses
enumerated in Sec. 4 of P.D. 1606 as Amended by R.A. 7975 but over offenses
committed in relation to their office, regardless of the penalty provided that the salary
of the accused is at Grade 27 under [R.A. 6758] or that he is occupying any of the
position described in Sec. 4(a)e of the law, which includes the position of Deputy
Commissioner.

2. [A]t this time the position of the prosecution in response to this Court's misgivings
stated in its Order of August 28, 1995, appears to be that aliens may not be arrested
except upon execution of a deportation order, a matter which can be taken up at
further proceedings after the arraignment of the accused.

It likewise set arraignment on 10 November 1995. To abort arraignment, the

petitioners filed on 9 November 1995 a motion for reconsideration and [16]

submitted that under the vast power of the Commissioner of the Department
of Immigration, he could authorize the arrest and detention of an alien even
though a deportation order had not yet become final, in light of the preventive,
not penal, nature of a deportation order. [17]

On 10 November 1995, the Sandiganbayan issued an Order denying the [18]

petitioners motion for reconsideration, and a second Order entering a plea of

[19]

not guilty in favor of the petitioners since they objected to arraignment, setting
pre-trial on 12 January 1996, and making of record that arraignment was
conducted with the reservation of the petitioners to seek redress with this
Court from the denial of their motion for reconsideration.

Hence, this special civil action, where the parties, in the main, reiterate the
arguments they raised before the Sandiganbayan. In due time, we resolved to
give due course to the petition and required the parties to file their respective
memoranda, which they subsequently complied with.

The petition must be dismissed.

Sections 2 and 7 of R.A. No. 7975 pertinently provide as follows:

Sec. 2. Section 4 of [P.D. No. 1606] is hereby further amended to read as follows:
Sec. 4. Jurisdiction. -- The Sandiganbayan shall exercise 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 of the Revised Penal Code, where one or more of the principal 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;

(1) Officials of the executive branch occupying the positions of regional director and
higher, otherwise classified as grade 27 and higher, of the Compensation and Position
Classification Act of 1989 (Republic Act No. 6758), specifically including:

xxx

(5) All other national and local officials classified as Grade 27 and higher under the
Compensation and Position Classification Act of 1989.

b. Other offenses or felonies committed by the public officials and employees

mentioned in subsection (a) of this section in relation to their office.

c. Civil and criminal cases filed pursuant to and in connection with Executive Order
Nos. 1, 2, 14 and 14-A.

In cases where none of the principal accused are occupying positions corresponding to
salary grade 27 or higher, as prescribed in said Republic Act No. 6758, or PNP
officers occupying the rank of superintendent or higher, or their equivalent, exclusive
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 jurisdiction as provided in Batas Pambansa Blg. 129.

Sec. 7. Upon the effectivity of this Act, all criminal cases in which trial has not begun
in the Sandiganbayan shall be referred to the proper courts.

R.A. No. 7975 took effect on 16 May 1995, or one year, ten months and
[20]

twenty-one days after the alleged commission of the crime charged in

Criminal Case No. 22825 before the Sandiganbayan. The provisions of 4 of
P.D. No. 1606, as amended by E.O. No. 184, but prior to their further
amendment by R.A. No. 7975, are then the applicable provisions. 4 of P.D.
No. 1606 then pertinently provided as follows:

SEC. 4. Jurisdiction. -- The Sandiganbayan shall exercise:

(a) Exclusive appellate jurisdiction in all cases involving:

(1) violations of Republic Act No. 3019, as amended, otherwise known as the Anti-
Graft and practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII of
the Revised Penal Code;

(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 of 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.

In Aguinaldo v. Domagas, and subsequently in Sanchez v. Demetriou,

[21]

Natividad v. Felix, and Republic v. Asuncion, we ruled that for the

[22] [23] [24]

Sandiganbayan to have exclusive original jurisdiction over offenses or felonies

committed by public officers or employees under the aforementioned 4(a)(2), it
was not enough that the penalty prescribed therefor was higher than prision
correccional or imprisonment for six years, or a fine of P6,000.00; it was
likewise necessary that the offenses or felonies were committed in relation to
their office.
[25]

The information in Criminal Case No. 22825 before the Sandiganbayan

charged the petitioners with the crime of arbitrary detention which was
committed while in the performance of their official functions, or, evidently, in
relation to their office. As the detention allegedly lasted for a period of 43
days, the prescribed penalty is prision mayor, with a duration of six years
[26]

and one day to twelve years. Indisputably, the Sandiganbayan has jurisdiction
over the offense charged in Criminal Case No. 22825.
 The petitioners, however, urge us to apply 4 of P.D. No. 1606, as amended
by R.A. No. 7975, the law in force at the time of the filing of the information in
Criminal Case No. 22825.They submit that under the new law, the
Sandiganbayan has no jurisdiction over the offense charged and their persons
because at the time of the filing of the information, petitioner Subido was
already a private individual, while the classification of petitioner Parinas
position was lower than grade 27.

We are not persuaded. The petitioners overlook the fact that for purposes
of 4 of P.D. No. 1606, as amended, the reckoning point is the time of the
commission of the crime. This is plain from the last clause of the opening
sentence of paragraph (a), 4 of P.D. No. 1606, as further amended by R.A.
No. 7975.

Petitioner Subido never denied the respondents claim that as

commissioner of Immigration and Deportation [now Bureau of Immigration] at
the time of the commission of the crime [he was] classified as having a
position even higher than grade 27. Both parties are, however, agreed that at
[27]

such time petitioner Parina was holding a position with a classification much
lower than salary grade 27. There can, therefore, be no doubt that the
Sandiganbayan had jurisdiction over the crime allegedly committed by Subido.

That petitioner Parina held a position with a salary grade of less than 27 at
the time of the commission of the alleged arbitrary detention is of no
moment. He is prosecuted as a co-conspirator of petitioner Subido, a principal
accused, who held a position higher than grade 27. The following provision of
4 of P.D. No. 1606, as amended by R.A. No. 7975, then applies:

In cases where none of the principal accused are occupying the positions
corresponding to salary grade 27 or higher, as prescribed in the said Republic Act No.
6758 ... exclusive jurisdiction therefor 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 jurisdiction as provided in
Batas Pambansa Blg. 129.

Finally, the petitioners invocation of the prohibition against the retroactivity

of penal laws is misplaced. Simply put, R.A. No. 7975 is not a penal
law. Penal laws or statutes are those acts of the Legislature which prohibit
certain acts and establish penalties for their violation; or those that define
[28]

crimes, treat of their nature, and provide for their punishment. R.A. No. 7975,
[29]

in further amending P.D. No. 1606 as regards the Sandiganbayans

jurisdiction, mode of appeal, and other procedural matters, is clearly a
procedural law, i.e., one which prescribes rules and forms of procedure of
enforcing rights or obtaining redress for their invasion, or those which refer to
rules of procedure by which courts applying laws of all kinds can properly
administer justice. Moreover, the petitioners even suggest that it is likewise a
[30]

curative or remedial statute; one which cures defects and adds to the means
of enforcing existing obligations. As noted by the petitioners, previous to the
[31]

enactment of R.A. No. 7975:

As before, not [sic] matter what kind of offense, so long as it is alleged that the crime
is committed in relation to the office of the public official, the Sandiganbayan had
jurisdiciton to try and hear the case, such that in many cases accused persons even
from the far away parts of the country, Mindanao, Visayas and the northern parts of
Luzon had to come personally to Manila to attend and appear for cases filed against
them, considering that the Sandiganbayan has its office/court in Manila.

The said R.A. No. 7975 changed this lamentable situation. For no as so provided in the said law,
there ha[s] been a modification that benefits [the] accused xxx in the sense that now where none
of the principal accused are occupying positions corresponding to salary grade 27 or higher as
prescribed by Republic Act No. 6758 xxx exclusive jurisdiction there shall be vested now in the
proper Regional Trial and Metropolitan Trial Court and Municipal Circuit Trial Court, as the case
may be xxx. [32]

All told, as a procedural and curative statute, R.A. No. 7975 may validly be
given retroactive effect, there being no impairment of contractual or vested
rights. [33]

WHEREFORE, the instant petition is DISMISSED, and the questioned

resolution and orders of the respondent Sandiganbayan are AFFIRMED.

Costs against the petitioners.

SO ORDERED.
Ambil vs Sandiganbayan

RUPERTO A. AMBIL, JR. vs SANDIGANBAYAN, G.R. No. 175482, July 6, 2011

FACTS: An information was filed before the Ombudsman against herein petitioners Ambil and
Apelado, then governor of Eastern Samar and Provincial Jail Warden of Eastern Samar
,respectively, for allegedly ordering and causing the release from the Provincial Jail of detention
prisoner Mayor Francisco Adalim in violation of Section 3(e) of R.A. No. 3019. At the pre-trial,
petitioner admitted the allegations in the Information reasoning however that Adalims transfer
was justified considering the imminent threats upon his person and the dangers posed by his
detention at the provincial jail. After trial, the Sandiganbayan found them guilty of the offense
charged.

ISSUE: WON the Sandiganbayan has jurisdiction over petitioners?

HELD: The jurisdiction of the Sandiganbayan over petitioner Ambil, Jr. is beyond question. The
same is true as regards petitioner Apelado, Sr. As to him, a Certification from the Provincial
Government Department Head of the HRMO shows that his position as Provincial Warden is
classified as Salary Grade 22. Nonetheless, it is only when none of the accused are occupying
positions corresponding to salary grade 27 or higher shall exclusive jurisdiction be vested in the
lower courts. Here, petitioner Apelado, Sr. was charged as a co-principal with Governor Ambil,
Jr., over whose position the Sandiganbayan has jurisdiction. Accordingly, he was correctly tried
jointly with said public officer in the proper court which had exclusive original jurisdiction over
them the Sandiganbayan.

LUIS PANAGUITON, JR., petitioner

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

DECISION

TINGA, J.:

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

The facts, as culled from the records, follow.

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

On 24 August 1995, petitioner filed a complaint against Cawili and

Tongson4 for violating Batas Pambansa Bilang 22 (B.P. Blg. 22)5 before the
Quezon City Prosecutor's Office. During the preliminary investigation, only
Tongson appeared and filed his counter-affidavit.6 Tongson claimed that he
had been unjustly included as party-respondent in the case since petitioner
had lent money to Cawili in the latter's personal capacity. Moreover, like
petitioner, he had lent various sums to Cawili and in appreciation of his
services, he was

offered to be an officer of Roma Oil Corporation. He averred that he was not

Cawili's business associate; in fact, he himself had filed several criminal cases
against Cawili for violation of B.P. Blg. 22. Tongson denied that he had issued
the bounced checks and pointed out that his signatures on the said checks
had been falsified.

To counter these allegations, petitioner presented several documents showing

Tongson's signatures, which were purportedly the same as the those
appearing on the checks.7 He also showed a copy of an affidavit of adverse
claim wherein Tongson himself had claimed to be Cawili's business
associate.8

In a resolution dated 6 December 1995,9 City Prosecutor III Eliodoro V. Lara

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

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

On 15 March 1999, Assistant City Prosecutor Ma. Lelibet S. Sampaga (ACP

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

Petitioner appealed to the DOJ. But the DOJ, through Undersecretary Manuel
A.J. Teehankee, dismissed the same, stating that the offense had already
prescribed pursuant to Act No. 3326.16Petitioner filed a motion for
reconsideration of the DOJ resolution. On 3 April 2003,17 the DOJ, this time
through then Undersecretary Ma. Merceditas N. Gutierrez, ruled in his favor
and declared that the offense had not prescribed and that the filing of the
complaint with the prosecutor's office interrupted the running of the
prescriptive period citing Ingco v. Sandiganbayan.18 Thus, the Office of the
City Prosecutor of Quezon City was directed to file three (3) separate
informations against Tongson for violation of B.P. Blg. 22.19 On 8 July 2003,
the City Prosecutor's Office filed an information20 charging petitioner with three
(3) counts of violation of B.P. Blg. 22.21

However, in a resolution dated 9 August 2004,22 the DOJ, presumably acting

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

Petitioner thus filed a petition for certiorari25 before the Court of Appeals
assailing the 9 August 2004 resolution of the DOJ. The petition was dismissed
by the Court of Appeals in view of petitioner's failure to attach a proper
verification and certification of non-forum

shopping. The Court of Appeals also noted that the 3 April 2003 resolution of
the DOJ attached to the petition is a mere photocopy.26 Petitioner moved for
the reconsideration of the appellate court's resolution, attaching to said motion
an amended Verification/Certification of Non-Forum Shopping.27Still, the Court
of Appeals denied petitioner's motion, stating that subsequent compliance with
the formal requirements would not per se warrant a reconsideration of its
resolution. Besides, the Court of Appeals added, the petition is patently
without merit and the questions raised therein are too unsubstantial to require
consideration.28

In the instant petition, petitioner claims that the Court of Appeals committed
grave error in dismissing his petition on technical grounds and in ruling that
the petition before it was patently without merit and the questions are too
unsubstantial to require consideration.
The DOJ, in its comment,29 states that the Court of Appeals did not err in
dismissing the petition for non-compliance with the Rules of Court. It also
reiterates that the filing of a complaint with the Office of the City Prosecutor of
Quezon City does not interrupt the running of the prescriptive period for
violation of B.P. Blg. 22. It argues that under B.P. Blg. 22, a special law which
does not provide for its own prescriptive period, offenses prescribe in four (4)
years in accordance with Act No. 3326.

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

The petition is meritorious.

First on the technical issues.

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

Indeed, the verification is merely a formal requirement intended to secure an

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

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

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

Now, on the substantive aspects.

Petitioner assails the DOJ's reliance on Zaldivia v. Reyes,35 a case involving

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

There is no question that Act No. 3326, appropriately entitled An Act to

Establish Prescription for Violations of Special Acts and Municipal Ordinances
and to Provide When Prescription Shall Begin, is the law applicable to
offenses under special laws which do not provide their own prescriptive
periods. The pertinent provisions read:

Section 1. Violations penalized by special acts shall, unless otherwise

provided in such acts, prescribe in accordance with the following rules:
(a) x x x; (b) after four years for those punished by imprisonment for
more than one month, but less than two years; (c) x x x

Sec. 2. Prescription shall begin to run from the day of the commission of
the violation of the law, and if the same be not known at the time, from
the discovery thereof and the institution of judicial proceedings for its
investigation and punishment.
 The prescription shall be interrupted when proceedings are instituted
against the guilty person, and shall begin to run again if the proceedings
are dismissed for reasons not constituting jeopardy.

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

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

The historical perspective on the application of Act No. 3326 is

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

institution of the criminal proceedings against the accused.44 These cases

were followed by our declaration in People v. Parao and Parao45 that the first
step taken in the investigation or examination of offenses partakes the nature
of a judicial proceeding which suspends the prescription of the
offense.46 Subsequently, in People v. Olarte,47 we held that the filing of the
complaint in the Municipal Court, even if it be merely for purposes of
preliminary examination or investigation, should, and does, interrupt the
period of prescription of the criminal responsibility, even if the court where the
complaint or information is filed cannot try the case on the merits. In addition,
even if the court where the complaint or information is filed may only proceed
to investigate the case, its actuations already represent the initial step of the
proceedings against the offender,48 and hence, the prescriptive period should
be interrupted.

In Ingco v. Sandiganbayan49 and Sanrio Company Limited v. Lim,50 which

involved violations of the Anti-Graft and Corrupt Practices Act (R.A. No. 3019)
and the Intellectual Property Code (R.A. No. 8293), which are both special
laws, the Court ruled that the

prescriptive period is interrupted by the institution of proceedings for

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

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

While it may be observed that the term "judicial proceedings" in Sec. 2

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

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

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

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

WHEREFORE, the petition is GRANTED. The resolutions of the Court of

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

No costs.

SO ORDERED.
Gregorio Ortega, Tomas del Castillo, Jr. and Benjamin Bacorro v. CA, SEC
and Joaquin Misa
G.R. No. 109248 July 3, 1995
Vitug, J.
Facts:

Ortega, then a senior partner in the law firm Bito, Misa, and Lozada withdrew in
said firm.

He filed with SEC a petition for dissolution and liquidation of partnership.

SEC en banc ruled that withdrawal of Misa from the firm had dissolved
the partnership.Reason: since it is partnership at will, the law firm could
be dissolved by any partner atanytime, such as by withdrawal therefrom,
regardless of good faith or bad faith, since nopartner can be forced to continue
in the partnership against his will.
Issue:
1. WON the partnership of Bito, Misa & Lozada (now Bito, Lozada, Ortega &
Castillo)is a partnership at will; 2. WON the withdrawal of Misa dissolved the
partnership regardlessof his good or bad faith;
Held:
1. Yes. The partnership agreement of the firm provides that [t]he partnership
shallcontinue so long as mutually satisfactory and upon the death or legal
incapacity of one of the partners, shall be continued by the surviving partners.2 .
Yes . An y o n e o f t h e p a r t n e r s m a y, a t h i s s o l e p l e a s u r e , d i c t a t e a
d i s s o l u t i o n o f t h e partnership at will (e.g. by way of withdrawal of a partner).
He must, however, act in goodfaith, not that the attendance of bad faith can prevent
the dissolution of the partnership butthat it can result in a liability for damages

GREGORIO F. ORTEGA, TOMAS O. DEL CASTILLO, JR., and BENJAMIN T.

BACORRO, petitioners,
vs.
HON. COURT OF APPEALS, SECURITIES AND EXCHANGE COMMISSION and JOAQUIN L.
MISA,respondents.

VITUG, J.:

The instant petition seeks a review of the decision rendered by the Court of Appeals, dated 26
February 1993, in CA-G.R. SP No. 24638 and No. 24648 affirming in toto that of the Securities and
Exchange Commission ("SEC") in SEC AC 254.

The antecedents of the controversy, summarized by respondent Commission and quoted at length
by the appellate court in its decision, are hereunder restated.

The law firm of ROSS, LAWRENCE, SELPH and CARRASCOSO was duly registered in the
Mercantile Registry on 4 January 1937 and reconstituted with the Securities and Exchange
Commission on 4 August 1948. The SEC records show that there were several subsequent
amendments to the articles of partnership on 18 September 1958, to change the firm [name]
to ROSS, SELPH and CARRASCOSO; on 6 July 1965 . . . to ROSS, SELPH, SALCEDO,
DEL ROSARIO, BITO & MISA; on 18 April 1972 to SALCEDO, DEL ROSARIO, BITO, MISA
& LOZADA; on 4 December 1972 to SALCEDO, DEL ROSARIO, BITO, MISA & LOZADA; on
11 March 1977 to DEL ROSARIO, BITO, MISA & LOZADA; on 7 June 1977 to BITO, MISA &
LOZADA; on 19 December 1980, [Joaquin L. Misa] appellees Jesus B. Bito and Mariano M.
Lozada associated themselves together, as senior partners with respondents-appellees
Gregorio F. Ortega, Tomas O. del Castillo, Jr., and Benjamin Bacorro, as junior partners.

On February 17, 1988, petitioner-appellant wrote the respondents-appellees a letter stating:

I am withdrawing and retiring from the firm of Bito, Misa and Lozada, effective
at the end of this month.

"I trust that the accountants will be instructed to make the proper liquidation
of my participation in the firm."

On the same day, petitioner-appellant wrote respondents-appellees another letter stating:

"Further to my letter to you today, I would like to have a meeting with all of
you with regard to the mechanics of liquidation, and more particularly, my
interest in the two floors of this building. I would like to have this resolved
soon because it has to do with my own plans."

On 19 February 1988, petitioner-appellant wrote respondents-appellees another letter

stating:

"The partnership has ceased to be mutually satisfactory because of the

working conditions of our employees including the assistant attorneys. All my
efforts to ameliorate the below subsistence level of the pay scale of our
employees have been thwarted by the other partners. Not only have they
refused to give meaningful increases to the employees, even attorneys, are
dressed down publicly in a loud voice in a manner that deprived them of their
self-respect. The result of such policies is the formation of the union,
including the assistant attorneys."

On 30 June 1988, petitioner filed with this Commission's Securities Investigation and
Clearing Department (SICD) a petition for dissolution and liquidation of partnership, docketed
as SEC Case No. 3384 praying that the Commission:

"1. Decree the formal dissolution and order the immediate liquidation of (the
partnership of) Bito, Misa & Lozada;

"2. Order the respondents to deliver or pay for petitioner's share in the
partnership assets plus the profits, rent or interest attributable to the use of
his right in the assets of the dissolved partnership;
 "3. Enjoin respondents from using the firm name of Bito, Misa & Lozada in
any of their correspondence, checks and pleadings and to pay petitioners
damages for the use thereof despite the dissolution of the partnership in the
amount of at least P50,000.00;

"4. Order respondents jointly and severally to pay petitioner attorney's fees
and expense of litigation in such amounts as maybe proven during the trial
and which the Commission may deem just and equitable under the premises
but in no case less than ten (10%) per cent of the value of the shares of
petitioner or P100,000.00;

"5. Order the respondents to pay petitioner moral damages with the amount
of P500,000.00 and exemplary damages in the amount of P200,000.00.

"Petitioner likewise prayed for such other and further reliefs that the
Commission may deem just and equitable under the premises."

On 13 July 1988, respondents-appellees filed their opposition to the petition.

On 13 July 1988, petitioner filed his Reply to the Opposition.

On 31 March 1989, the hearing officer rendered a decision ruling that:

"[P]etitioner's withdrawal from the law firm Bito, Misa & Lozada did not
dissolve the said law partnership. Accordingly, the petitioner and respondents
are hereby enjoined to abide by the provisions of the Agreement relative to
the matter governing the liquidation of the shares of any retiring or
withdrawing partner in the partnership interest." 1

On appeal, the SEC en banc reversed the decision of the Hearing Officer and held that the
withdrawal of Attorney Joaquin L. Misa had dissolved the partnership of "Bito, Misa & Lozada." The
Commission ruled that, being a partnership at will, the law firm could be dissolved by any partner at
anytime, such as by his withdrawal therefrom, regardless of good faith or bad faith, since no partner
can be forced to continue in the partnership against his will. In its decision, dated 17 January 1990,
the SEC held:

WHEREFORE, premises considered the appealed order of 31 March 1989 is hereby

REVERSED insofar as it concludes that the partnership of Bito, Misa & Lozada has not been
dissolved. The case is hereby REMANDED to the Hearing Officer for determination of the
respective rights and obligations of the parties. 2

The parties sought a reconsideration of the above decision. Attorney Misa, in addition, asked for an
appointment of a receiver to take over the assets of the dissolved partnership and to take charge of
the winding up of its affairs. On 4 April 1991, respondent SEC issued an order denying
reconsideration, as well as rejecting the petition for receivership, and reiterating the remand of the
case to the Hearing Officer.
The parties filed with the appellate court separate appeals (docketed CA-G.R. SP No. 24638 and
CA-G.R. SP No. 24648).

During the pendency of the case with the Court of Appeals, Attorney Jesus Bito and Attorney
Mariano Lozada both died on, respectively, 05 September 1991 and 21 December 1991. The death
of the two partners, as well as the admission of new partners, in the law firm prompted Attorney Misa
to renew his application for receivership (in CA G.R. SP No. 24648). He expressed concern over the
need to preserve and care for the partnership assets. The other partners opposed the prayer.

The Court of Appeals, finding no reversible error on the part of respondent Commission,
AFFIRMED in toto the SEC decision and order appealed from. In fine, the appellate court held, per
its decision of 26 February 1993, (a) that Atty. Misa's withdrawal from the partnership had changed
the relation of the parties and inevitably caused the dissolution of the partnership; (b) that such
withdrawal was not in bad faith; (c) that the liquidation should be to the extent of Attorney Misa's
interest or participation in the partnership which could be computed and paid in the manner
stipulated in the partnership agreement; (d) that the case should be remanded to the SEC Hearing
Officer for the corresponding determination of the value of Attorney Misa's share in the partnership
assets; and (e) that the appointment of a receiver was unnecessary as no sufficient proof had been
shown to indicate that the partnership assets were in any such danger of being lost, removed or
materially impaired.

In this petition for review under Rule 45 of the Rules of Court, petitioners confine themselves to the
following issues:

1. Whether or not the Court of Appeals has erred in holding that the partnership of Bito, Misa
& Lozada (now Bito, Lozada, Ortega & Castillo) is a partnership at will;

2. Whether or not the Court of Appeals has erred in holding that the withdrawal of private
respondent dissolved the partnership regardless of his good or bad faith; and

3. Whether or not the Court of Appeals has erred in holding that private respondent's
demand for the dissolution of the partnership so that he can get a physical partition of
partnership was not made in bad faith;

to which matters we shall, accordingly, likewise limit ourselves.

A partnership that does not fix its term is a partnership at will. That the law firm "Bito, Misa &
Lozada," and now "Bito, Lozada, Ortega and Castillo," is indeed such a partnership need not be
unduly belabored. We quote, with approval, like did the appellate court, the findings and disquisition
of respondent SEC on this matter; viz:

The partnership agreement (amended articles of 19 August 1948) does not provide for a
specified period or undertaking. The "DURATION" clause simply states:
 "5. DURATION. The partnership shall continue so long as mutually
satisfactory and upon the death or legal incapacity of one of the partners,
shall be continued by the surviving partners."

The hearing officer however opined that the partnership is one for a specific undertaking and
hence not a partnership at will, citing paragraph 2 of the Amended Articles of Partnership (19
August 1948):

"2. Purpose. The purpose for which the partnership is formed, is to act as
legal adviser and representative of any individual, firm and corporation
engaged in commercial, industrial or other lawful businesses and
occupations; to counsel and advise such persons and entities with respect to
their legal and other affairs; and to appear for and represent their principals
and client in all courts of justice and government departments and offices in
the Philippines, and elsewhere when legally authorized to do so."

The "purpose" of the partnership is not the specific undertaking referred to in the law.
Otherwise, all partnerships, which necessarily must have a purpose, would all be considered
as partnerships for a definite undertaking. There would therefore be no need to provide for
articles on partnership at will as none would so exist. Apparently what the law contemplates,
is a specific undertaking or "project" which has a definite or definable period of completion. 3

The birth and life of a partnership at will is predicated on the mutual desire and consent of the
partners. The right to choose with whom a person wishes to associate himself is the very foundation
and essence of that partnership. Its continued existence is, in turn, dependent on the constancy of
that mutual resolve, along with each partner's capability to give it, and the absence of a cause for
dissolution provided by the law itself. Verily, any one of the partners may, at his sole pleasure, dictate
a dissolution of the partnership at will. He must, however, act in good faith, not that the attendance of
bad faith can prevent the dissolution of the partnership 4 but that it can result in a liability for damages. 5

In passing, neither would the presence of a period for its specific duration or the statement of a
particular purpose for its creation prevent the dissolution of any partnership by an act or will of a
partner. 6 Among partners, 7 mutual agency arises and the doctrine of delectus personae allows them to
have the power, although not necessarily the right, to dissolve the partnership. An unjustified dissolution
by the partner can subject him to a possible action for damages.

The dissolution of a partnership is the change in the relation of the parties caused by any partner
ceasing to be associated in the carrying on, as might be distinguished from the winding up of, the
business. 8 Upon its dissolution, the partnership continues and its legal personality is retained until the
complete winding up of its business culminating in its termination. 9

The liquidation of the assets of the partnership following its dissolution is governed by various
provisions of the Civil Code; 10 however, an agreement of the partners, like any other contract, is binding
among them and normally takes precedence to the extent applicable over the Code's general provisions.
We here take note of paragraph 8 of the "Amendment to Articles of Partnership" reading thusly:
 . . . In the event of the death or retirement of any partner, his interest in the partnership shall
be liquidated and paid in accordance with the existing agreements and his partnership
participation shall revert to the Senior Partners for allocation as the Senior Partners may
determine; provided, however, that with respect to the two (2) floors of office condominium
which the partnership is now acquiring, consisting of the 5th and the 6th floors of the Alpap
Building, 140 Alfaro Street, Salcedo Village, Makati, Metro Manila, their true value at the time
of such death or retirement shall be determined by two (2) independent appraisers, one to be
appointed (by the partnership and the other by the) retiring partner or the heirs of a
deceased partner, as the case may be. In the event of any disagreement between the said
appraisers a third appraiser will be appointed by them whose decision shall be final. The
share of the retiring or deceased partner in the aforementioned two (2) floor office
condominium shall be determined upon the basis of the valuation above mentioned which
shall be paid monthly within the first ten (10) days of every month in installments of not less
than P20,000.00 for the Senior Partners, P10,000.00 in the case of two (2) existing Junior
Partners and P5,000.00 in the case of the new Junior Partner. 11

The term "retirement" must have been used in the articles, as we so hold, in a generic sense to
mean the dissociation by a partner, inclusive of resignation or withdrawal, from the partnership that
thereby dissolves it.

On the third and final issue, we accord due respect to the appellate court and respondent
Commission on their common factual finding, i.e., that Attorney Misa did not act in bad faith. Public
respondents viewed his withdrawal to have been spurred by "interpersonal conflict" among the
partners. It would not be right, we agree, to let any of the partners remain in the partnership under
such an atmosphere of animosity; certainly, not against their will. 12Indeed, for as long as the reason
for withdrawal of a partner is not contrary to the dictates of justice and fairness, nor for the purpose of
unduly visiting harm and damage upon the partnership, bad faith cannot be said to characterize the act.
Bad faith, in the context here used, is no different from its normal concept of a conscious and intentional
design to do a wrongful act for a dishonest purpose or moral obliquity.

WHEREFORE, the decision appealed from is AFFIRMED. No pronouncement on costs.

SO ORDERED.