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Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. 42037 March 21, 1990

DOMINGO V. LUGTU, DEMETRIO SANCHEZ, as Provincial Fiscal of Bataan, and PEOPLE OF THEPHILIPPINES, petitioners,vs.THE COURT OF APPEALS and ROSA L. CANCIO, respondents.

Calixto 0. Zaldivar for private respondent.

PADILLA, J .:

This petition for review seeks to set aside the decision *of respondent Court of Appeals, promulgated on17 September 1975, granting private respondent's petition for certiorariin CA-G.R. No. 04122-SP, entitled"Rosa L. Cancio vs. Hon. Abraham P. Vera, etc., et al.," and setting aside the orders of the trial courtdated 19 June 1974, 11 January 1975 and 15 February 1975 which authorized the discharge of petitionerDomingo V. Lugtu from the information so that he could be utilized as witness for the government.

Petitioner Domingo V. Lugtu, together with private respondent Rosa L. Cancio and Clodualdo F. Vitugwere charged in an information filed by the Provincial Fiscal of Bataan in the Court of First Instance ofsaid province, with the crime of estafa committed as follows:

. . . accused Domingo V. Lugtu, Clodualdo F. Vitug and Rosa L. Cancio, with intent tocause damage and to defraud another with deceit, conspiring, confederating and

mutually helping one another, said accused Clodualdo Vitug and Rosa L. Cancio inducedand succeeded to make their co-accused Domingo V. Lugtu to open a checking accountwith Continental Bank, Guagua Branch, and after which made and caused him topurchase Check Boks [sic] and thereafter Domingo Lugtu signed said checks in blankand delivered same to his co-accused Clodualdo Vitug, an Acting Paying Teller of thePhilippine National Bank, who knowing fully well that accused Domingo Lugtu had nosufficient funds in the bank, accused Clodualdo Vitug, with grave abuse of confidenceand in excess of his authority, did then and there wilfully, unlawfully and feloniously fill outthe following checks payable to "CASH" . . . drawn against the Continental Bank, afterwhich, said accused Clodualdo Vitug taking undue advantage of the position as suchActing Paying Teller of the Philippine National Bank at Balanga, Bataan, endorse, encashand pay the above-mentioned checks to himself in the aggregate amount of ONEHUNDRED SEVENTY TWO THOUSAND AND FOUR HUNDRED (P172,400.00)

PESOS, but upon presentation of said checks to the drawee bank for payment, theaforementioned checks were dishonored and returned unpaid because of insufficiency offunds and/or "no arrangement" and despite repeated demands made to the accused toremit, pay or deposit the corresponding amounts of said checks, accused failed andrefused to remit, pay or deposit the corresponding amount of the checks to the damageand prejudice of the Philippine National Bank . . .

1

At the arraignment, all the accused pleaded not guilty. After presenting three (3) witnesses, the ProvincialFiscal filed with the trial court a motion to discharge the accused Domingo V. Lugtu for the purpose of

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utilizing him as state witness against his co-accused. The motion was denied by Judge Abraham P. Vera.A motion for reconsideration was filed by the Provincial Fiscal and the private prosecutor, attachingthereto an affidavit dated 8 February 1974 of Lugtu, to which motion accused Rosa L. Cancio filed anopposition. The parties submitted their respective reply, rejoinder and comment. Thereafter, in an Orderdated 19 June 1974, Judge Vera reconsidered his earlier order, after finding that "the prosecution hasfully complied with the requirements outlined by Sec. 9, Rule 119 of the Rules of Court," and authorizedthe discharge of Lugtu from the information so that he could be utilized as government witness. AccusedCancio filed a motion for reconsideration of the said Order of 19 June 1974, wherein she called theattention of the trial judge to an earlier Sinumpaang Salaysay, dated 10 March 1973, executed by thesame Lugtu before the PC of Bataan. In an Order dated 11 January 1975, the court a quodeniedCancio's motion. Her second motion for reconsideration was likewise denied on 15 February 1975.

Alleging that the trial judge committed a grave abuse of discretion, or acted in excess of his jurisdiction inissuing the three (3) orders abovementioned, accused Cancio filed with the Court of Appeals a petition forcertiorari, praying that the three (3) orders adverted to be reversed. On 17 September 1975, respondentappellate court promulgated the now questioned decision, setting aside the three (3) assailed orders ofthe court a quoand ordering the reinstatement of Lugtu to the information.

2Herein, petitioners' motion for

reconsideration of the decision was denied by respondent court on 24 November 1975 for lack of merit.3

Hence, this petition.

The principal issue to be resolved in this recourse is whether or not respondent appellate court erred infinding that the conditions required under Section 9, Rule 119 of the Rules of Court were not presentwhen the trial court approved the discharge of accused Lugtu from the information.

Section 9, Rule 119 of the Rules reads as follows:

Sec. 9. Discharge of one of several defendants to be witness for the prosecution. When two or more persons are charged with the commission of a certain offense, thecompetent court, at any time before they have entered upon their defense, may directone or more of them to be discharged with the latter's consent that he or they may bewitnesses for the government when in the judgment of the court:

(a) There is absolute necessity for the testimony of the defendant whose discharge isrequested;

(b) There is no other direct evidence available for the proper prosecution of the offensecommitted, except the testimony of said defendant;

(c) The testimony of said defendant can be substantially corroborated in its materialpoints;

(d) Said defendant does not appear to be the most guilty;

(e) Said defendant has not at any time been convicted of any offense involving moral

turpitude.

In ruling that the first and second conditions required in the above-quoted section are not present,respondent appellate court considered the sworn statement (Sinumpaang Salaysay) dated 10 March1973 executed by accused Lugtu wherein he admitted his responsibility in the commission of the offense.Another factor that persuaded the respondent court to take its position, is the testimony of the three (3)prosecution witnesses who had already testified on the modus operandiof the swindle, by which Lugtuopened a checking account with the Continental Bank in Guagua, Pampanga, issued checks that werecashed by accused Vitug with the PNB Branch in Balanga, Bataan, and thereafter it was found that thechecks were not covered by sufficient funds. These circumstances, according to respondent appellate

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court, constitute direct evidence, available to the prosecution, of the offense committed, such that thetestimony of Lugtu is not absolutely necessary.

Petitioners contend, on the other hand, that Lugtu's Sinumpaang Salaysayof 10 March 1973 was not yetpresented or before the trial court at the time it resolved their (petitioners) motion for reconsideration of itsfirst order denying their motion for discharge of Lugtu. It was only brought to the attention of the trial judge

after private respondent Cancio filed her motion for reconsideration of the 19 June 1974 order authorizingthe discharge of Lugtu. However, according to the petitioners, the said sworn statement (10 March 1973)was in fact passed upon by the trial judge in his order dated 15 February 1975, to writ:

. . . After considering the arguments of opposing counsels and carefully scrutinizing the"Sinumpaang Salaysay" of Accused Lugtu before the PC C2C Marino Ravelo at theBataan Constabulary Command in Camp Tolentino at Balanga, Bataan on March 10,1973, the Court is of the opinion that there is no reasonable ground to set aside itsprevious order discharging the accused Domingo Lugtu from the information so that hecould be utilized as State witness . . .

4

As for the testimony of the three (3) prosecution witnesses, petitioners assert that, as correctly ruled bythe trial court, the said testimony can substantially corroborate the testimony of Lugtu in its material

points. The testimony of the three (3) witnesses centered on the modus operandiof the swindleperpetrated by the three (3) accused.

According to petitioners, the trial court after thoroughly and exhaustively examining and evaluating thefacts and evidence on record, found Lugtu not to be the most guilty. Being a poor and ignorant man, hewas easily convinced by Vitug and Cancio (his employer) to open the account with the Continental Bankin Guagua, which led to the commission of the offense.

In the words of the trial judge:

A perusal of the Motion for Reconsideration and the Affidavit of accused Lugtu attachedthereto explicitly show that the said accused, who the records show is unable to post abond, was introduced by his employer, accused Rosa L. Cancio, to Clodualdo Vitug, then

working as a teller of the Balanga, Bataan branch of the Philippine National Bank. Afterthe introduction, accused Lugtu, upon prodding of accused Vitug and Cancio, was madeto open a current account with the Continental Bank at Guagua, Pampanga. Thereafter,accused Lugtu was told by his co-accused, Vitug and Cancio, to buy a checkbook andthen was made to sign all the checks therein in blank. The accused Lugtu protested toaccused Cancio why he was the one being made to open the account and to sign theblank checks and he received the answer that if the accused [sic] were opened in thename of accused Vitug, the bank might learn about it and he (Vitug) might lose his job.

5

Finally, petitioners state that both the court a quoand the respondent appellate court found that Lugtu hasnot at any time been convicted of any offense involving moral turpitude.

The petition is impressed with merit.

From the records and evidence thus far adduced, it appears that there is absolute necessity for thetestimony of petitioner Lugtu. It should be noted that in the information, the three (3) accused werecharged with conspiring and confederating with one another in the commission of the crime charged(estafa).

Respondent appellate court erred when it considered the testimony of the three (3) prosecution witnessesand the Sinumpaang Salaysaydated 10 March 1973 executed by Lugtu admitting his responsibility, asdirect evidence, available to the prosecution, of the crime charged. For, respondent court itself

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acknowledged that "the three prosecution witnesses that were presented by the prosecution onlymentioned the accused Vitug and the respondent Lugtu. The petitioner (Cancio) has never been broughtinto the picture."

6Respondent court was likewise aware that "(u)nder the information there is only one

conspiracy alleged which is among the three accused and not only between the petitioner and accusedVitug. The prosecution has adduced evidence as to the conspiracy between respondent Lugtu and theaccused Vitug. What apparently has not been clearly established is the involvement of the petitioner(Cancio) in the conspiracy."

7Such being the case, we agree with the finding of the trial court that the

testimony of Lugtu would be the direct evidenceto link the events starting from the opening of thechecking account up to the time the checkbook in question found its way to the Philippine National Bankbranch in Balanga.

The discharge of an accused should be availed of only when there is absolute necessity for the testimonyof said accused whose discharge is requested, as when he alonehas knowledge of the crime, and notwhen his testimony would simply corroborate or otherwise strengthen the evidence in the hands of theprosecution.

8

As to Lugtu's Sinumpaang Salaysayof 10 March 1973 to which respondent court gave much weight, inthe words of the Solicitor General, the statement merely complements and supplements the 8 February1974 affidavit of Lugtu and that the first sworn statement (10 March 1973), which was executed before a

constabulary soldier who asked the questions of Lugtu, does not contain all the details as compared tothe second statement of 8 February 1974. Moreover, since there is no showing that the said SinumpaangSalaysayof 10 March 1973 was executed by Lugtu in the presence or with the aid of counsel incompliance with Article IV, Section 20, of the (1973) Constitution, the same is inadmissible in evidence.

The finding of respondent appellate court that Lugtu is just as guilty as the accused Vitug and should notbe discharged as he does not appear to be not the most guilty, is untenable.

"The Rules do not disqualify an accused sought to be discharged as witness for the state merely on theground that he has committed a falsification himself, or that he had actually committed the crime charged.The Rules say that it is necessary that the said defendant does not appear to be the 'most guilty,' fromwhich the conclusion follows that the guilt of an accused of the crime charged is no reason why he maynot be excluded as witness for the State. As a matter of fact, the candid admission of an accused, of his

participation in a crime, is a guaranty that if he will testify in court he will testify truthfully; so that even if anaccused actually participated in the offense charged in the information, he may still be made a witness."

9

The facts of record show that the trial judge who was in a position to evaluate the evidence available sofar, did not abuse his discretion. It is settled that the discharge of an accused lies within the sounddiscretion of the trial court which has the exclusive responsibility to see that the conditions prescribed bythe Rule (for discharge of an accused) exist.

10

WHEREFORE, respondent court's Decision dated 17 September 1975 and its Resolution dated 24November 1975 are hereby SET ASIDE. The Orders of the trial court dated 19 June 1974, 11 January1975 and 15 February 1975 in Criminal Case No. 390 are hereby REINSTATED. The Regional TrialCourt of Bataan corresponding to the former Court of First Instance of Bataan is directed to proceed withthe trial on the merits of Criminal Case No. 390.

This decision is immediately executory.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

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FIRST DIVISION

G.R. No. 143093 May 21, 2007

RIMBERTO T. SALVANERA, Petitioner,vs.

PEOPLE OF THE PHILIPPINES and LUCITA PARANE,Respondents.

D E C I S I O N

PUNO, C.J.:

On appeal are the Decision dated April 30, 1999 and the two Resolutions of the Court of Appeals, datedSeptember 22, 1999 and May 11, 2000, in CA-G.R. SP No. 46945. The Court of Appeals dischargedaccused Feliciano Abutin and Domingo Tampelix from the Information in Criminal Case No. TM-1730 forMurder, pending before the Regional Trial Court of Trece Martires City, to become state witnesses. Theappellate court likewise cancelled the bail bond of petitioner Rimberto Salvanera.

First, the facts:

In an Information1dated November 30, 1996, petitioner Rimberto Salvanera, together with Feliciano

Abutin, Edgardo Lungcay and Domingo Tampelix, is charged with the murder of Ruben Parane,committed as follows:

That on or about October 23, 1995, in the Municipality of Gen. Trias, Province of Cavite, Philippines andwithin the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating andmutually helping each other, with treachery and evident premeditation, then armed with a firearm, did,then and there, wilfully, unlawfully and feloniously assault, attack and shoot one RUBEN PARANE YMAGSAMBOL, inflicting gunshot wound on his body, resulting to his instantaneous death, to the damageand prejudice of the heirs of the said victim.

CONTRARY TO LAW.

As per theory of the prosecution, petitioner was the alleged mastermind; Lungcay, the hired hitman;Abutin, the driver of the motorcycle which carried Lungcay to the place of the commission of the crime;while Tampelix delivered the blood money to the latter. All the accused have been arrested and detained,except Edgardo Lungcay who remained at-large.

Respondent Lucita Parane is the spouse of victim Ruben Parane.

On January 22, 1997, petitioner applied for bail. The prosecution, on March 4, 1997, moved for thedischarge of accused Feliciano Abutin and Domingo Tampelix, to serve as state witnesses.

In an Omnibus Order2dated September 5, 1997, the trial court granted petitioners application for bail and

denied the prosecutions motion for the discharge of accused Abutin and Tampelix. The prosecutionmoved for reconsideration but the motion was denied.

The prosecution then appealed to the Court of Appeals. It contended that the trial court committed graveabuse of discretion when it denied the motion to discharge accused Abutin and Tampelix to be statewitnesses. It alleged that the testimonies of the two accused are absolutely necessary to establish thatpetitioner masterminded the murder of Ruben Parane. The prosecution likewise claimed that it waspremature and baseless for the trial court to grant petitioners application for bail because the prosecutionhad not yet rested its case in the hearing for the discharge of the two accused.

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The Court of Appeals sustained the prosecution. It discharged accused Feliciano Abutin and DomingoTampelix from the Information to become state witnesses, and cancelled the bail bond of petitionerSalvanera. In its Resolution dated September 22, 1999, it denied petitioner's Motion for Reconsideration.Petitioner then filed his Motion for Clarification with Leave of Court. The same was also denied in aResolution dated May 11, 2000.

Hence, this appeal.

Petitioner enumerates the grounds for his appeal, as follows:

I. RESPONDENT COURT OF APPEALS COMMITTED SERIOUS ERROR IN RENDERING THEFIRST, SECOND AND THIRD ASSAILED ORDERS DEFYING LAW AND JURISPRUDENCETHEREON WHEN IT RULED THAT THE "SUBSTANTIAL CORROBORATION" REQUIREMENTUNDER SECTION 9, RULE 119 OF THE REVISED RULES OF COURT WAS SATISFIED BYTHE PROSECUTION DESPITE THE FACT THAT -

A. THE "SUBSTANTIAL CORROBORATION" REQUIREMENT MUST BE SATISFIEDTHROUGH THE TESTIMONY OF THE OTHER PROSECUTION WITNESSES WHOARE NOT AN (sic)ACCUSED SOUGHT TO BE DISCHARGED AS STATE WITNESS,

NOT BY ANOTHER ACCUSED LIKEWISE SOUGHT TO BE DISCHARGED.

B. THE SWORN STATEMENT OF AN ACCUSED SOUGHT TO BE DISCHARGEDCANNOT BE USED AS EVIDENCE FOR PURPOSES OTHER THAN HIS OWNDISCHARGE PRIOR TO THE ISSUANCE BY A COMPETENT COURT OF THE ORDEROF HIS DISCHARGE.

C. THE TESTIMONIES OF ABUTIN AND TAMPELIX CANNOT BE SUBSTANTIALLYCORROBORATED IN ITS MATERIAL POINTS BY THE OTHER PROSECUTIONWITNESSES.

D. THE TESTIMONY GIVEN BY AN ACCUSED SOUGHT TO BE DISCHARGED ASSTATE WITNESS CANNOT BE USED TO CORROBORATE THE TESTIMONY GIVENBY ANOTHER ACCUSED LIKEWISE SOUGHT TO BE DISCHARGED AS STATEWITNESS.

II. RESPONDENT COURT OF APPEALS COMMITTED SERIOUS ERROR IN RENDERINGTHE FIRST, SECOND AND THIRD ASSAILED ORDERS, DEFYING LAW ANDJURISPRUDENCE ON THE MATTER, WHEN IT CANCELLED PETITIONER'S BAIL BONDDESPITE THE FACT THAT THE TRIAL COURT JUDGE ALREADY RULED THAT THEEVIDENCE OF HIS GUILT IS NOT STRONG.

3

We uphold the ruling of the Court of Appeals.

In the discharge of an accused in order that he may be a state witness, the following conditions must be

present, namely:

(1) Two or more accused are jointly charged with the commission of an offense;

(2) The motion for discharge is filed by the prosecution before it rests its case;

(3) The prosecution is required to present evidence and the sworn statement of each proposedstate witness at a hearing in support of the discharge;

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(4) The accused gives his consent to be a state witness; and

(5) The trial court is satisfied that:

a) There is absolute necessity for the testimony of the accused whose discharge isrequested;

b) There is no other direct evidence available for the proper prosecution of the offensecommitted, except the testimony of said accused;

c) The testimony of said accused can be substantially corroborated in its material points;

d) Said accused does not appear to be the most guilty; and,

e) Said accused has not at any time been convicted of any offense involving moralturpitude.

4

According to petitioner, the testimony of an accused sought to be discharged to become a state witness

must be substantially corroborated, not by a co-accused likewise sought to be discharged, but by otherprosecution witnesses who are not the accused in the same criminal case. Petitioner justifies this theoryon the general principles of justice and sound logic. He contends that it is a notorious fact in humannature that a culprit, confessing a crime, is likely to put the blame on others, if by doing so, he will befreed from any criminal responsibility. Thus, in the instant case, petitioner supposes that both Abutin andTampelix will naturally seize the opportunity to be absolved of any liability by putting the blame on one oftheir co-accused. Petitioner argues that prosecution witnesses Parane and Salazar, who are not accused,do not have personal knowledge of the circumstances surrounding the alleged conspiracy. Thus, theycould not testify to corroborate the statement of Abutin and Tampelix that petitioner is the mastermind orthe principal by induction.

We agree with the Court of Appeals in dismissing this reasoning as specious. To require the twowitnesses Parane and Salazar to corroborate the testimony of Abutin and Tampelix on the exact same

points is to render nugatory the other requisite that "there must be no other direct evidence available forthe proper prosecution of the offense committed, except the testimony of the state witness."5The

corroborative evidence required by the Rules does not have to consist of the very same evidence as willbe testified on by the proposed state witnesses. We have ruled that "a conspiracy is more readily provedby the acts of a fellow criminal than by any other method. If it is shown that the statements of theconspirator are corroborated by other evidence, then we have convincing proof of veracity. Even if theconfirmatory testimony only applies to some particulars, we can properly infer that the witness has toldthe truth in other respects."

6It is enough that the testimony of a co-conspirator is corroborated by some

other witness or evidence. In the case at bar, we are satisfied from a reading of the records that thetestimonies of Abutin and Tampelix are corroborated on important points by each others testimonies andthe circumstances disclosed through the testimonies of the other prosecution witnesses, and "to suchextent that their trustworthiness becomes manifest."

7

As part of the conspiracy, Abutin and Tampelix can testify on the criminal plan of the conspirators. Wherea crime is contrived in secret, the discharge of one of the conspirators is essential because only theyhave knowledge of the crime.

8The other prosecution witnesses are not eyewitnesses to the crime, as, in

fact, there is none. No one except the conspirators knew and witnessed the murder. The testimonies ofthe accused and proposed state witnesses Abutin and Tampelix can directly link petitioner to thecommission of the crime.

In Chua v. Court of Appeals,9we ruled that the trial court has to rely on the information offered by the

public prosecutor as to who would best qualify as a state witness. The prosecutor knows the evidence inhis possession and the witnesses he needs to establish his case. In Mapa v. Sandiganbayan,

10we held:

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The decision to grant immunity from prosecution forms a constituent part of the prosecution process. It isessentially a tactical decision to forego prosecution of a person for government to achieve a higherobjective. It is a deliberate renunciation of the right of the State to prosecute all who appear to be guilty ofhaving committed a crime. Its justification lies in the particular need of the State to obtain the conviction ofthe more guilty criminals who, otherwise, will probably elude the long arm of the law. Whether or not thedelicate power should be exercised, who should be extended the privilege, the timing of its grant, arequestions addressed solely to the sound judgment of the prosecution. The power to prosecute includesthe right to determine who shall be prosecuted and the corollary right to decide whom not to prosecute.

We further ruled:

In reviewing the exercise of prosecutorial discretion in these areas, the jurisdiction of the respondent courtis limited. For the business of a court of justice is to be an impartial tribunal, and not to get involved withthe success or failure of the prosecution to prosecute. Every now and then, the prosecution may err in theselection of its strategies, but such errors are not for neutral courts to rectify, any more than courts shouldcorrect the blunders of the defense. For fairness demands that courts keep the scales of justice atequipoise between and among all litigants. Due process demands that courts should strive to maintainthe legal playing field perfectly even and perpetually level.

Lastly, we affirm the ruling of the appellate court in cancelling the bail bond of petitioner. The grant ofpetitioners application for bail is premature. It has to await the testimony of state witnesses Abutin andTampelix. Their testimonies must be given their proper weight in determining whether the petitioner isentitled to bail.

IN VIEW WHEREOF, the petition is DENIED and the Decision and Resolutions of the Court of Appeals inCA-G.R. SP No. 46945, dated April 30, 1999, September 22, 1999 and May 11, 2000, respectively, areAFFIRMED in toto.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

G.R. No. 152643 August 28, 2008

CONCEPCION CUENCO VDA. DE MANGUERRA and THE HON. RAMON C. CODILLA, JR.,Presiding Judge of the Regional Trial Court of Cebu City, Branch 19, petitioners,vs.RAUL RISOS, SUSANA YONGCO, LEAH ABARQUEZ and ATTY. GAMALIEL D.B. BONJE, respondents.

D E C I S I O N

NACHURA, J .:

This is a petition for review on certiorariunder Rule 45 of the Rules of Court, assailing the Court ofAppeals (CA) Decision

1dated August 15, 2001 and its Resolution

2dated March 12, 2002. The CA

decision set aside the Regional Trial Court (RTC) Orders dated August 25, 20003granting Concepcion

Cuenco Vda. de Manguerras (Concepcions) motion to take deposition, and dated November 3, 20004

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denying the motion for reconsideration of respondents Raul G. Risos, Susana Yongco, Leah Abarquez,and Atty. Gamaliel D.B. Bonje.

The facts of the case, as culled from the records, follow:

On November 4, 1999, respondents were charged with Estafa Through Falsification of Public Document

before the RTC of Cebu City, Branch 19, through a criminal information dated October 27, 1999, whichwas subsequently amended on November 18, 1999. The case, docketed as Criminal Case No. CBU-52248,

5arose from the falsification of a deed of real estate mortgage allegedly committed by respondents

where they made it appear that Concepcion, the owner of the mortgaged property known as the Gorordoproperty, affixed her signature to the document. Hence, the criminal case.

6

Earlier, on September 10, 1999, Concepcion, who was a resident of Cebu City, while on vacation inManila, was unexpectedly confined at the Makati Medical Center due to upper gastro-intestinal bleeding;and was advised to stay in Manila for further treatment.

7

On November 24, 1999, respondents filed a Motion for Suspension of the Proceedings in Criminal CaseNo. CBU-52248 on the ground of prejudicial question. They argued that Civil Case No. CEB-20359, whichwas an action for declaration of nullity of the mortgage, should first be resolved.

8On May 11, 2000, the

RTC granted the aforesaid motion. Concepcions motion for reconsideration was denied on June 5,2000.

9

This prompted Concepcion to institute a special civil action for certioraribefore the CA seeking thenullification of the May 11 and June 5 RTC orders. The case was docketed as CA-G.R. SP No. 60266and remains pending before the appellate court to date.

10

On August 16, 2000, the counsel of Concepcion filed a motion to take the latters de position.11

Heexplained the need to perpetuate Concepcions testimony due to her weak physical condition and oldage, which limited her freedom of mobility.

On August 25, 2000, the RTC granted the motion and directed that Concepcions deposition be takenbefore the Clerk of Court of Makati City.

12The respondents motion for reconsideration was denied by the

trial court on November 3, 2000. The court ratiocinated that procedural technicalities should be brushedaside because of the urgency of the situation, since Concepcion was already of advanced age.

13After

several motions for change of venue of the deposition-taking, Concepcions deposition was finally takenon March 9, 2001 at her residence.

14

Aggrieved, respondents assailed the August 25 and November 3 RTC orders in a special civil action forcertioraribefore the CA in CA-G.R. SP No. 62551.

15

On August 15, 2001, the CA rendered a Decision16

favorable to the respondents, the dispositive portion ofwhich reads:

WHEREFORE, the petition is GRANTED and the August 25, 2000 and November 3, 2000 orders

of the court a quo are hereby SET ASIDE, and any deposition that may have been taken on theauthority of such void orders is similarly declared void.

SO ORDERED.17

At the outset, the CA observed that there was a defect in the respondents petition by not impleading thePeople of the Philippines, an indispensable party. This notwithstanding, the appellate court resolved thematter on its merit, declaring that the examination of prosecution witnesses, as in the present case, isgoverned by Section 15, Rule 119 of the Revised Rules of Criminal Procedure and not Rule 23 of the

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Rules of Court. The latter provision, said the appellate court, only applies to civil cases. Pursuant to thespecific provision of Section 15, Rule 119, Concepcions deposition should have been taken before thejudge or the court where the case is pending, which is the RTC of Cebu, and not before the Clerk of Courtof Makati City; and thus, in issuing the assailed order, the RTC clearly committed grave abuse ofdiscretion.

18

In its Resolution dated March 12, 2002 denying petitioners motion for reconsideration, the CA added thatthe rationale of the Rulesin requiring the taking of deposition before the same court is the constitutionalright of the accused to meet the witnesses face to face. The appellate court likewise concluded that Rule23 could not be applied suppletorily because the situation was adequately addressed by a specificprovision of the rules of criminal procedure.

19

Hence, the instant petition raising the following issues:

I.

WHETHER OR NOT RULE 23 OF THE 1997 RULES OF CIVIL PROCEDURE APPLIES TO THEDEPOSITION OF PETITIONER.

II.

WHETHER OR NOT FAILURE TO IMPLEAD THE "PEOPLE OF THE PHILIPPINES" IN APETITION FOR CERTIORARI ARISING FROM A CRIMINAL CASE A QUOCONSTITUTES AWAIVABLE DEFECT IN THE PETITION FOR CERTIORARI.

20

It is undisputed that in their petition for certioraribefore the CA, respondents failed to implead the Peopleof the Philippines as a party thereto. Because of this, the petition was obviously defective. As provided inSection 5, Rule 110 of the Revised Rules of Criminal Procedure, all criminal actions are prosecuted underthe direction and control of the public prosecutor. Therefore, it behooved the petitioners (respondentsherein) to implead the People of the Philippines as respondent in the CA case to enable the SolicitorGeneral to comment on the petition.

21

However, this Court has repeatedly declared that the failure to implead an indispensable party is not aground for the dismissal of an action. In such a case, the remedy is to implead the non-party claimed tobe indispensable. Parties may be added by order of the court, on motion of the party or on its owninitiative at any stage of the action and/or such times as are just. If the petitioner/plaintiff refuses toimplead an indispensable party despite the order of the court, the latter may dismiss thecomplaint/petition for the petitioners/plaintiffs failure to comply.

22

In this case, the CA disregarded the procedural flaw by allowing the petition to proceed, in the interest ofsubstantial justice. Also noteworthy is that, notwithstanding the non-joinder of the People of thePhilippines as party-respondent, it managed, through the Office of the Solicitor General, to file itsComment on the petition for certiorari. Thus, the People was given the opportunity to refute therespondents arguments.

Instructive is the Courts pronouncement in Commissioner Domingo v. Scheer23

in this wise:

There is nothing sacred about processes or pleadings, their forms or contents. Their sole purposeis to facilitate the application of justice to the rival claims of contending parties. They werecreated, not to hinder and delay, but to facilitate and promote, the administration of justice. Theydo not constitute the thing itself, which courts are always striving to secure to litigants. They aredesigned as the means best adapted to obtain that thing. In other words, they are a means to an

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end. When they lose the character of the one and become the other, the administration of justiceis at fault and courts are correspondingly remiss in the performance of their obvious duty.

24

Accordingly, the CA cannot be faulted for deciding the case on the merits despite the procedural defect.

On the more important issue of whether Rule 23 of the Rules of Court applies to the instant case, we rule

in the negative.

It is basic that all witnesses shall give their testimonies at the trial of the case in the presence of thejudge.

25This is especially true in criminal cases in order that the accused may be afforded the opportunity

to cross-examine the witnesses pursuant to his constitutional right to confront the witnesses face toface.

26It also gives the parties and their counsel the chance to propound such questions as they deem

material and necessary to support their position or to test the credibility of said witnesses.27

Lastly, thisrule enables the judge to observe the witnesses demeanor.

28

This rule, however, is not absolute. As exceptions, Rules 23 to 28 of the Rules of Court provide for thedifferent modes of discovery that may be resorted to by a party to an action. These rules are adoptedeither to perpetuate the testimonies of witnesses or as modes of discovery. In criminal proceedings,Sections 12,

2913

30and 15,

31Rule 119 of the Revised Rules of Criminal Procedure, which took effect on

December 1, 2000, allow the conditional examination of both the defense and prosecution witnesses.

In the case at bench, in issue is the examination of a prosecution witness, who, according to thepetitioners, was too sick to travel and appear before the trial court. Section 15 of Rule 119 thus comesinto play, and it provides:

Section 15. Examination of witness for the prosecution.When it satisfactorily appears that awitness for the prosecution is too sick or infirm to appear at the trial as directed by the court, orhas to leave the Philippines with no definite date of returning, he may forthwith be conditionallyexamined before the court where the case is pending. Such examination, in the presence of theaccused, or in his absence after reasonable notice to attend the examination has been served onhim, shall be conducted in the same manner as an examination at the trial. Failure or refusal ofthe accused to attend the examination after notice shall be considered a waiver. The statement

taken may be admitted in behalf of or against the accused.

Petitioners contend that Concepcions advanced age and health condition exempt her from theapplication of Section 15, Rule 119 of the Rules of Criminal Procedure, and thus, calls for the applicationof Rule 23 of the Rules of Civil Procedure.

The contention does not persuade.

The very reason offered by the petitioners to exempt Concepcion from the coverage of Rule 119 is atonce the ground which places her squarely within the coverage of the same provision. Rule 119specifically states that a witness may be conditionally examined: 1) if the witness is too sick or infirm toappear at the trial; or 2) if the witness has to leave the Philippines with no definite date of returning. Thus,

when Concepcion moved that her deposition be taken, had she not been too sick at that time, her motionwould have been denied. Instead of conditionally examining her outside the trial court, she would havebeen compelled to appear before the court for examination during the trial proper.

Undoubtedly, the procedure set forth in Rule 119 applies to the case at bar. It is thus required that theconditional examination be made before the court where the case is pending. It is also necessary that theaccused be notified, so that he can attend the examination, subject to his right to waive the same afterreasonable notice. As to the manner of examination, the Rules mandate that it be conducted in the samemanner as an examination during trial, that is, through question and answer.

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Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

G.R. No. 167710 June 5, 2009

PEOPLE OF THE PHILIPPINES,Petitioner,vs.JOVEN DE GRANO, ARMANDO DE GRANO, DOMINGO LANDICHO and ESTANISLAO LACABA, Respondents.

D E C I S I O N

PERALTA, J .:

This is a petition for review on certiorari, under Rule 45 of the Rules of Court, seeking to annul and setaside the Resolutions

1dated January 25, 2005 and April 5, 2005, issued by the Court of Appeals (CA) in

CA-G.R. SP No. 88160.

The antecedents are as follows:

On November 28, 1991, an Information for murder committed against Emmanuel Mendoza was filed withthe Regional Trial Court (RTC), Branch 6, Tanauan, Batangas, against Joven de Grano (Joven),Armando de Grano (Armando), and Estanislao Lacaba (Estanislao), together with their co-accusedLeonides Landicho (Leonides), Domingo Landicho (Domingo), and Leonardo Genil (Leonardo), who wereat-large.

2It was docketed as Criminal Case No. 2730, the pertinent portion of which reads:

That on April 21, 1991, between 9:00 oclock and 10:00 oclock in the evening, in Barangay Balakilong,[M]unicipality of Laurel, [P]rovince of Batangas, and within the jurisdiction of the Honorable Court, all the

above named accused, conspiring, confederating, and helping one another, motivated by common designand intent to kill, did then and there, willfully, unlawfully, and feloniously, and by means of treachery andwith evident premeditation, shoot EMMANUEL MENDOZA with firearms, inflicting upon him eight gunshotwounds and causing his death thereby, thus committing the crime of MURDER to the damage andprejudice of his heirs in the amount as the Honorable Court shall determine.

3

Duly arraigned, Joven, Armando, and Estanislao pleaded "not guilty" to the crime as charged; while theirco-accused Leonides, Leonardo, and Domingo remained at-large. Thereafter, respondents filed a motionfor bail contending that the prosecutions evidence was not strong.

4

Meanwhile, considering that one of the accused was the incumbent Mayor of Laurel, Batangas at the timewhen the crime was committed, Senior State Prosecutor Hernani T. Barrios moved that the venue betransferred from the RTC, Branch 6, Tanauan, Batangas to any RTC in Manila. Consequently, the case

was transferred to the RTC Manila for re-raffling amongst its Branches. The case was re-docketed asCriminal Case No. 93-129988 and was initially re-raffled to Branches 6, 9, and 11 before being finallyraffled to Branch 27, RTC, Manila.

5

Before transferring the case to the RTC, Branch 27, Manila, the trial court deferred the resolution ofrespondents motion for bail and allowed the prosecution to present evidence. Thereafter, the hearing ofthe application for bail ensued, wherein the prosecution presented Teresita and Dr. Leonardo Salvador.After finding that the prosecutions evidence to prove treachery and evident premeditation was not strong,

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the RTC, Branch 11, Manila, granted respondents motionfor bail. A motion for reconsideration was filed,but it was denied.

6

The prosecution then filed a petition for certiorari with the CA, docketed as CA-G.R. SP No. 41110, whichwas denied. Aggrieved, they sought recourse before this Court in G.R. No. 129604. In a Resolution datedJuly 12, 1999, this Court granted the petition and set aside the decision of the CA together with the Order

of the RTC granting bail to the respondents. The RTC was also ordered to immediately issue a warrant ofarrest against the accused. The resolution was also qualified to be immediately executory.7As a result,

Estanislao was re-arrested, but Joven and Armando were not.8

However, upon respondents motion for reconsideration, this Court, in a Resolution dated September 4,2001, resolved to remand the case to the RTC. We noted that, in view of the transmittal of the records ofthe case to this Court in connection with the petition, the trial court deferred the rendition of its decision.Consequently, the case was remanded to the RTC for further proceedings, including the rendition of itsdecision on the merits.

After the presentation of the parties respective sets of evidence, the RTC rendered a Decision9dated

April 25, 2002, finding several accused guilty of the offense as charged, the dispositive portion of whichreads:

WHEREFORE, CONSIDERING ALL THE FOREGOING, this Court finds the accused JOVEN DEGRANO, ARMANDO DE GRANO, DOMINGO LANDICHO and ESTANISLAO LACABA, guilty beyondreasonable doubt of the crime of MURDER, qualified by treachery, and there being no modifyingcircumstance attendant, hereby sentences them to suffer the penalty of Reclusion Perpetua, and toindemnify the heirs of Emmanuel Mendoza the sum of P50,000.00 and to pay the costs.

The case as against accused Leonides Landicho and Leonardo Genil is hereby sent to the files orarchived cases to be revived as soon as said accused are apprehended.

Let alias warrants of arrest be issued against accused Leonardo Genil and Leonides Landicho.

Only Estanislao was present at the promulgation despite due notice to the other respondents.

Respondents, thru counsel, then filed a Joint Motion for Reconsideration dated May 8, 2002, praying thatthe Decision dated April 25, 2002 be reconsidered and set aside and a new one be entered acquittingthem based on the following grounds, to wit:

1. The Honorable Court erred in basing the decision of conviction of all accused solely on thebiased, uncorroborated and baseless testimony of Teresita Duran, the common-law wife of thevictim;

2. The Honorable Court erred in not giving exculpatory weight to the evidence adduced by thedefense, which was amply corroborated on material points;

3. The Honorable Court erred in not finding that the failure of the prosecution to present rebuttalevidence renders the position of the defense unrebutted;

4. The Honorable Court erred in adopting conditional or preliminary finding of treachery of theSupreme Court in its Resolution dated July 12, 1999; and

5. The Honorable Court erred in rendering a verdict [sic] of conviction despite the fact that theguilt of all the accused were not proven beyond reasonable doubt.

10

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In its Opposition, the prosecution pointed out that while the accused jointly moved for the reconsiderationof the decision, all of them, except Estanislao, were at-large. Having opted to become fugitives and bebeyond the judicial ambit, they lost their right to file such motion for reconsideration and to ask forwhatever relief from the court.

11

Acting on respondents motion for reconsideration, the RTC issued an Order12

dated April 15, 2004

modifying its earlier decision by acquitting Joven and Armando, and downgrading the conviction ofDomingo and Estanislao from murder to homicide. The decretal portion of the Order reads:

WHEREFORE, IN VIEW OF ALL THE FOREGOING, the Court modifies its decision and finds accusedDOMINGO LANDICHO and ESTANISLAO LACABA, "GUILTY" beyond reasonable doubt, as principal ofthe crime of Homicide, and in default of any modifying circumstance, sentences them to an indeterminateprison term of SIX (6) YEARS and ONE (1) DAY of Prision Mayor, as minimum, to TWELVE YEARS [and]ONE DAY of Reclusion Temporal, as maximum. Said accused shall be credited with the full period of theirpreventive imprisonment pursuant to B.P. Blg. 85.1avvphi1

Accused ARMANDO DE GRANO and JOVEN DE GRANO are hereby ACQUITTED on the basis ofreasonable doubt. They are likewise declared free of any civil liability.

To the extent herein altered or modified, the Decision dated April 25, 2002 stands.

SO ORDERED.13

Estanislao filed a Notice of Appeal, while the prosecution sought reconsideration of the Order arguingthat:

1. There was absolutely no basis for this Court to have taken cognizance of the "Joint Motion forReconsideration" dated May 8, 2002, citing Sec. 6, Rule 120 of the Rules of Court.

2. The testimony of Teresita Duran deserves credence. The delay in the taking of Ms. Duranswritten statement of the events she witnessed is understandable considering that Joven de Grano

was the mayor of the municipality where the crime was committed and that another accused,Estanislao Lacaba, was a policeman in the same municipality.

3. The crime committed is murder.

4. Accused Armando de Grano and Joven de Grano participated in the conspiracy.

On September 28, 2004, the RTC issued an Order14

denying the motion and giving due course toEstanislaos notice of appeal.

Petitioner, thru Assistant City Prosecutor Cesar Glorioso of the Office of the Manila City Prosecutor, withthe assistance of private prosecutor Atty. Michael E. David, filed a Petition

15for certiorari under Rule 65 of

the Rules of Court before the CA arguing that:

(a) the private respondents, having deliberately evaded arrest after being denied bail anddeliberately failing to attend the promulgation of the Decision despite due notice, lost the right tomove for reconsideration of their conviction; and

(b) the grounds relied upon by respondent RTC in modifying its Decision are utterly erroneous .16

Petitioner alleged that it had no other plain, adequate, and speedy remedy, considering that the Statecould not appeal a judgment of acquittal. However, by way of exception, a judgment of acquittal in a

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criminal case may be assailed in a petition for certiorari under Rule 65 of the Rules of Court upon ashowing by the petitioner that the lower court, in acquitting the accused, committed not only reversibleerrors of judgment, but also grave abuse of discretion amounting to lack or excess of jurisdiction, or adenial of due process, thus rendering the assailed judgment void. Consequently, the accused cannot beconsidered at risk of double jeopardy.

17

Respondent De Grano filed a Motion to Dismiss,

18

arguing that the verification and certification portion ofthe petition was flawed, since it was signed only by counsel and not by the aggrieved party. Also, thepetition did not contain the conformity of the Solicitor General.

19

On January 31, 2005, petitioner, through the private prosecutor, filed an Opposition to Motion toDismiss.

20Petitioner explained that, for lack of material time, it failed to secure the conformity of the Office

of the Solicitor General (OSG) when it filed the petition, but it would nevertheless obtain it. A day afterfiling the petition, the private prosecutor sought the OSGs conformity in a letter

21dated January 12, 2005.

The OSG, in turn, informed the private prosecutor that rather than affixing its belated conformity, it wouldrather await the initial resolution of the CA.

22Also, so as not to preempt the action of the Department of

Justice (DOJ) on the case, the OSG instructed the private prosecutor to secure the necessaryendorsement from the DOJ for it to pursue the case. Anent the verification and certification of the petitionhaving been signed by the private prosecutor, petitioner explained that private complainant Teresita was

in fear for her life as a result of the acquittal of former Mayor Joven de Grano, but she was willing tocertify the petition should she be given ample time to travel to Manila.23

However, in a Resolution24

dated January 25, 2005, which was received by the petitioner on the sameday it filed its Opposition or on January 31, 2005, the petition was dismissed outright by the CA on thegrounds that it was not filed by the OSG and that the assailed Orders were only photocopies and notcertified true copies. The dispositive portion of the Resolution reads:

WHEREFORE, premises considered, this petition is hereby OUTRIGHTLY DISMISSED.

Petitioner timely filed a Motion for Reconsideration.25

In addition to the justifications it raised in its earlierOpposition to the Motion to Dismiss, petitioner argued that the petition was not only signed by the privateprosecutor, it was also signed by the prosecutor who represented the petitioner in the criminal

proceedings before the trial court. Petitioner also maintains that the certified true copies of the assailedOrders were accidentally attached to its file copy instead of the one it submitted. To rectify the mistake, itattached the certified true copies of the assailed Orders.

26This was opposed by the respondents in their

Comment/Opposition to Petitioners Motion for Reconsideration.27

lawphi1

Meanwhile, in its 1st Indorsement28

dated March 15, 2005, DOJ Secretary Raul M. Gonzalez, endorsedthe petition filed by the Assistant City Prosecutor, with the assistance of the private prosecutor, to theSolicitor General for his conformity.

On April 5, 2005, the CA issued a Resolution29

denying the motion, thus:

WHEREFORE, petitioners motion for reconsideration is hereby DENIED.

In denying the motion, the CA opined that the rule on double jeopardy prohibits the state from appealingor filing a petition for review of a judgment of acquittal that was based on the merits of the case. If there isan acquittal, an appeal therefrom, if it will not put the accused in double jeopardy, on the criminal aspect,may be undertaken only by the State through the Solicitor General. It added that a special civil action forcertiorari under Rule 65 of the Rules of Court may be filed by the person aggrieved. In such case, theaggrieved parties are the State and the private offended party or complainant. Moreover, the recordsreveal that the petition was not filed in the name of the offended party; and worse, the verification andcertification of non-forum shopping attached to the petition was signed not by the private offended party,but by her counsel. Notwithstanding the efforts exerted by the petitioner to secure the confirmation of the

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OSG and the endorsement of the DOJ, there is no showing of any subsequent participation of the OSG inthe case.

Hence, the petition raising the following issues:

WHETHER THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR AND GRAVE ABUSE OF

DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT DISMISSED THEPETITION FOR CERTIORARI ON THE GROUND OF DOUBLE JEOPARDY.

WHETHER THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR AND GRAVE ABUSE OFDISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT DISMISSED THEPETITION FOR CERTIORARI FOR NOT HAVING BEEN FILED BY THE OFFICE OF THE SOLICITORGENERAL NOR IN THE NAME OF THE OFFENDED PARTY.

WHETHER THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR AND GRAVE ABUSE OFDISCRETION WHEN IT DISMISSED THE PETITION FOR CERTIORARI ON THE GROUND THAT THEVERIFICATION AND CERTIFICATION ATTACHED TO THE PETITION WAS SIGNED BY THEPRIVATE COUNSEL AND NOT BY THE OFFENDED PARTY.

30

Petitioner, through the Solicitor General, argues that, except for Estanislao, none of the respondentsappeared at the promulgation of the Decision. Neither did they surrender after promulgation of thejudgment of conviction, nor filed a motion for leave to avail themselves of the judicial remedies against thedecision, stating the reasons for their absence. The trial court thus had no authority to take cognizance ofthe joint motion for reconsideration filed by the respondents as stated in Section 6, Rule 120 of the 2000Revised Rules of Criminal Procedure. As such, the RTC committed grave abuse of discretion amountingto lack or excess of jurisdiction. Having been issued without jurisdiction, the Order dated April 15, 2004 isvoid. Consequently, no double jeopardy attached to such void Order. The CA, therefore, committedreversible error when it dismissed the petition for certiorari on the ground of double jeopardy.

31

Petitioner also contends that, with the endorsement of the DOJ and the letter of the OSG manifesting itsintention to pursue the petition, the OSG had in fact conformed to the filing of the petition and agreed topursue the same. Had the CA given the OSG ample time to file the necessary pleading, the petition would

not have been dismissed for the reason that it was filed by the said office .32

With respect to the verification and certification of non-forum shopping, petitioner invokes a liberalapplication of the Rules for private complainants failure to personally sign it. Petitioner maintains that outof extreme fear arising from the unexpected acquittal of Joven, private complainant was reluctant to travelto Manila. After she was taken out of the witness protection program, she took refuge in the Visayas andshe was there at the time her signature was required. Since the period for filing the petition for certiorariwas about to lapse, and it could not be filed without the verification and certification of non-forumshopping, the private prosecutor was left with no option but so sign it, instead of allowing the deadline topass without filing the petition.

33

Moreover, petitioner maintains that the OSG has the authority to sign the verification and certification ofthe present petition, because the real party-in-interest is the OSG itself as the representative of theState.34

On their part, respondents contend that the petition for certiorari questioning the order of acquittal is notallowed and is contrary to the principle of double jeopardy. Respondents argue that, contrary to theOSGs contention, respondents Joven and Domingos absence during the promulgation of the Decisiondated April 25, 2002 did not deprive the trial court of its authority to resolve their Joint Motion forReconsideration, considering that one of the accused, Estanislao, was present during the promulgation.

35

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Joven, Armando, and Domingo maintain that while they were not present during the promulgation of theRTC Decision, Estanislao, who was under police custody, attended the promulgation of the said Decision.Thus, when they filed their Joint Motion for Reconsideration, which included that of Estanislao, the RTCwas not deprived of its authority to resolve the joint motion.

36

Respondents insist that the CA properly dismissed the petition for certiorari, as it was not instituted by the

OSG on behalf of the People of the Philippines, and that the verification and certification portion thereofwas not signed by private complainant Teresita.37

Respondents also argue that the petition for certioraribefore this Court should be dismissed, since theverification and certification thereof were signed by a solicitor of the OSG, not private complainant.

The petition is meritorious.

Before considering the merits of the petition, we will first address the technical objections raised byrespondents.

As regards the issue of the signatory of the verification and certif ication of non-forum shopping, a liberalapplication of the Rules should be applied to the present case.

The purpose of requiring a verification is to secure an assurance that the allegations in the petition havebeen made in good faith; or are true and correct, not merely speculative. This requirement is simply acondition affecting the form of pleadings, and noncompliance therewith does not necessarily render itfatally defective.

38Truly, verification is only a formal, not a jurisdictional, requirement. Hence, it was

sufficient that the private prosecutor signed the verification.

With respect to the certification of non-forum shopping, it has been held that the certification requirementis rooted in the principle that a party-litigant shall not be allowed to pursue simultaneous remedies indifferent fora, as this practice is detrimental to an orderly judicial procedure.

39However, this Court has

relaxed, under justifiable circumstances, the rule requiring the submission of such certification consideringthat although it is obligatory, it is not jurisdictional.

40Not being jurisdictional, it can be relaxed under the

rule of substantial compliance.

In Donato v. Court of Appeals41

andWee v. Galvez,42

the Court noted that the petitioners were already inthe United States; thus, the signing of the certification by their authorized representatives was deemedsufficient compliance with the Rules. In Sy Chin v. Court of Appeals,

43the Court upheld substantial justice

and ruled that the failure of the parties to sign the certification may be overlooked, as the parties casewas meritorious. In Torres v. Specialized Packaging and Development Corporation,

44the Court also

found, among other reasons, that the extreme difficulty to secure all the required signatures and theapparent merits of the substantive aspects of the case constitute compelling reasons for allowing thepetition.

In Ortiz v. Court of Appeals45

and similar rulings, the following has always been pointed out:

The attestation contained in the certification on non-forum shopping requires personal knowledge by theparty who executed the same. To merit the Courts consideration, petitioners here must show reasonablecause for failure to personally sign the certification. The petitioners must convince the court that theoutright dismissal of the petition would defeat the administration of justice.

Thus, petitioners need only show that there was reasonable cause for the failure to sign the certificationagainst forum shopping, and that the outright dismissal of the petition would defeat the administration ofjustice.

46

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8/11/2019 21 TRIAL

20/36

TRIAL jrp

144

We find that the particular circumstances of this case advance valid reasons for private complainantsfailure to sign the certification. As pointed out in the petition, it was out of extreme fear that privatecomplainant failed to personally sign the certification. It is to be noted that when Armando and Jovenwere acquitted, Teresita was already out of the witness protection program and was in hiding in theVisayas. As such, she could not travel to Manila to personally sign the petition. Moreover, as maintainedby the petitioner, since the period for filing the petition for certiorari was about to lapse, the privateprosecutor was left with no option but to sign the verification and certification, instead of allowing theperiod to file the petition to pass without it being filed. A relaxation of the procedural rules, considering theparticular circumstances, is justified. The requirement was thus substantially complied with.

As summarized inBank of the Philippine Islands v. Court of Appeals,47

when a strict and literal applicationof the rules on non-forum shopping and verification would result in a patent denial of substantial justice,they may be liberally construed. An unforgiving application of the pertinent provisions of the Rules will notbe given premium if it would impede rather than serve the best interests of justice in the light of theprevailing circumstances in the case under consideration.

We reiterate our holding in City Warden of the Manila City Jailv. Estrella,48

that the signature of theSolicitor General on the verification and certification of non-forum shopping in a petition before the CA orwith this Court is substantial compliance with the requirement under the Rules, considering that the OSG

is the legal representative of the Government of the Republic of the Philippines and its agencies andinstrumentalities; more so, in a criminal case where the People or the State is the real party-in-interestand is the aggrieved party.

49

Also, respondents contention that there is no showing of any subsequent participation of the OSG in thepetition before the CA does not hold water. In the letter dated January 18, 2004, the OSG instructed theprivate prosecutor to secure the necessary endorsement from the DOJ for it to pursue the case. In its 1stIndorsement dated March 15, 2005, DOJ Secretary Raul M. Gonzalez, endorsed the petition to theSolicitor General for his conformity. When the CA denied petitioners Motion for Reconsideration for itsoutright dismissal of the petition, the OSG filed motions

50for extension of time to file the present petition.

Moreover, the OSG filed a Comment51

on respondents Motion for Reconsideration.52

Thus, any doubtregarding the endorsement, conformity, and participation of the OSG in the petitions is dispelled.

Now on the substantive aspect.

A peculiar situation exists in the instant case. Petitioner has sought recourse before the CA, via a petitionfor certiorari under Rule 65, from an Order of the trial court drastically modifying its earlier findingsconvicting the respondents of the crime of murder, by acquitting Joven and Armando, and downgradingthe convictions of their co-accused from murder to homicide; this, notwithstanding that all the accused,except Estanislao Lacaba, failed to personally appear at the promulgation of the Decision despite duenotice thereof.

Petitioner contends that its petit