[G.R. No. 130974. August 16, 2006.]

MA. IMELDA M. MANOTOC, petitioner, vs. HONORABLE COURT OF APPEALS and AGAPITA TRAJANO on behalf of the Estate of ARCHIMEDES TRAJANO, respondents.

D E C I S I O N

VELASCO, JR., J p:

The court's jurisdiction over a defendant is founded on a valid service of summons. Without a valid service, the court cannot acquire jurisdiction over the defendant, unless the defendant voluntarily submits to it. The defendant must be properly apprised of a pending action against him and assured of the opportunity to present his defenses to the suit. Proper service of summons is used to protect one's right to due process.

The Case

This Petition for Review on Certiorari 1 under Rule 45 presents the core issue whether there was a valid substituted service of summons on petitioner for the trial court to acquire jurisdiction. Petitioner Manotoc claims the court a quoshould have annulled the proceedings in the trial court for want of jurisdiction due to irregular and ineffective service of summons.

The Facts

Petitioner is the defendant in Civil Case No. 63337 entitled Agapita Trajano, pro se, and on behalf of the Estate of Archimedes Trajano v. Imelda 'Imee' R. Marcos-Manotoc 2 for Filing, Recognition and/or Enforcement of Foreign Judgment. Respondent Trajano seeks the enforcement of a foreign court's judgment rendered on May 1, 1991 by the United States District Court of Honolulu, Hawaii, United States of America, in a case entitled Agapita Trajano, et al. v. Imee Marcos-Manotoc a.k.a. Imee Marcos, Civil Case No. 86-0207 for wrongful death of deceased Archimedes Trajano committed by military intelligence officials of the Philippines allegedly under the command, direction, authority, supervision, tolerance, sufferance and/or influence of defendant Manotoc, pursuant to the provisions of Rule 39 of the then Revised Rules of Court.

Based on paragraph two of the Complaint, the trial court issued a Summons 3 on July 6, 1993 addressed to petitioner at Alexandra Condominium Corporation or Alexandra Homes, E2 Room 104, at No. 29 Meralco Avenue, Pasig City.

On July 15, 1993, the Summons and a copy of the Complaint were allegedly served upon (Mr.) Macky de la Cruz, an alleged caretaker of petitioner at the condominium unit mentioned earlier. 4 When petitioner failed to file her Answer, the trial court declared her in default through an Order 5 dated October 13, 1993. AICTcE

On October 19, 1993, petitioner, by special appearance of counsel, filed a Motion to Dismiss 6 on the ground of lack of jurisdiction of the trial court over her person due to an invalid substituted service of summons. The grounds to support the motion were: (1) the address of defendant indicated in the Complaint (Alexandra Homes) was not her dwelling, residence, or regular place of business as provided in Section 8, Rule 14 of the Rules of Court; (2) the party (de la Cruz), who was found in the unit, was neither a representative, employee, nor a resident of the place; (3) the procedure prescribed by the Rules on personal and substituted service of summons was ignored; (4) defendant was a resident of Singapore; and (5) whatever judgment rendered in this case would be ineffective and futile.

During the hearing on the Motion to Dismiss, petitioner Manotoc presented Carlos Gonzales, who testified that he saw defendant Manotoc as a visitor in Alexandra Homes only two times. He also identified the Certification of Renato A. de Leon, which stated that Unit E-2104 was owned by Queens

Park Realty, Inc.; and at the time the Certification was issued, the unit was not being leased by anyone. Petitioner also presented her Philippine passport and the Disembarkation/Embarkation Card 7 issued by the Immigration Service of Singapore to show that she was a resident of Singapore. She claimed that the person referred to in plaintiff's Exhibits "A" to "EEEE" as "Mrs. Manotoc" may not even be her, but the mother of Tommy Manotoc, and granting that she was the one referred to in said exhibits, only 27 out of 109 entries referred to Mrs. Manotoc. Hence, the infrequent number of times she allegedly entered Alexandra Homes did not at all establish plaintiff's position that she was a resident of said place.

On the other hand, Agapita Trajano, for plaintiffs' estate, presented Robert Swift, lead counsel for plaintiffs in the Estate of Ferdinand Marcos Human Rights Litigation, who testified that he participated in the deposition taking of Ferdinand R. Marcos, Jr.; and he confirmed that Mr. Marcos, Jr. testified that petitioner's residence was at the Alexandra Apartment, Greenhills. 8 In addition, the entries 9 in the logbook of Alexandra Homes from August 4, 1992 to August 2, 1993, listing the name of petitioner Manotoc and the Sheriff's Return, 10 were adduced in evidence.

On October 11, 1994, the trial court rejected Manotoc's Motion to Dismiss on the strength of its findings that her residence, for purposes of the Complaint, was Alexandra Homes, Unit E-2104, No. 29 Meralco Avenue, Pasig, Metro Manila, based on the documentary evidence of respondent Trajano. The trial court relied on the presumption that the sheriff's substituted service was made in the regular performance of official duty, and such presumption stood in the absence of proof to the contrary. 11

On December 21, 1994, the trial court discarded Manotoc's plea for reconsideration for lack of merit. 12

Undaunted, Manotoc filed a Petition for Certiorari and Prohibition 13 before the Court of Appeals (CA) on January 20, 1995, docketed as CA-G.R. SP No. 36214 seeking the annulment of the October 11, 1994 and December 21, 1994 Orders of Judge Aurelio C. Trampe.

Ruling of the Court of Appeals

On March 17, 1997, the CA rendered the assailed Decision, 14 dismissing the Petition for Certiorari and Prohibition. The court a quo adopted the findings of the trial court that petitioner's residence was at Alexandra Homes, Unit E-2104, at No. 29 Meralco Avenue, Pasig, Metro Manila, which was also the residence of her husband, as shown by the testimony of Atty. Robert Swift and the Returns of the registered mails sent to petitioner. It ruled that the Disembarkation/Embarkation Card and the Certification dated September 17, 1993 issued by Renato A. De Leon, Assistant Property Administrator of Alexandra Homes, were hearsay, and that said Certification did not refer to July 1993 — the month when the substituted service was effected.

In the same Decision, the CA also rejected petitioner's Philippine passport as proof of her residency in Singapore as it merely showed the dates of her departure from and arrival in the Philippines without presenting the boilerplate's last two (2) inside pages where petitioner's residence was indicated. The CA considered the withholding of those pages as suppression of evidence. Thus, according to the CA, the trial court had acquired jurisdiction over petitioner as there was a valid substituted service pursuant to Section 8, Rule 14 of the old Revised Rules of Court. IaEACT

On April 2, 1997, petitioner filed a Motion for Reconsideration 15 which was denied by the CA in its Resolution 16 dated October 8, 1997.

Hence, petitioner has come before the Court for review on certiorari.

The Issues

Petitioner raises the following assignment of errors for the Court's consideration:

I. RESPONDENT COURT OF APPEALS COMMITTED [A] SERIOUS ERROR IN RENDERING THE DECISION AND RESOLUTION IN QUESTION (ANNEXES A AND B) IN DEFIANCE OF LAW AND JURISPRUDENCE IN RULING THAT THE TRIAL COURT ACQUIRED JURISDICTION OVER THE PERSON OF THE PETITIONER THROUGH A SUBSTITUTED SERVICE OF SUMMONS IN ACCORDANCE WITH SECTION 8, RULE 14 OF THE REVISED RULES OF COURT.

II. RESPONDENT COURT OF APPEALS COMMITTED [A] SERIOUS ERROR WHEN IT RULED THAT THERE WAS A VALID SERVICE OF SUMMONS ON AN ALLEGED CARETAKER OF PETITIONER'S RESIDENCE IN COMPLETE DEFIANCE OF THE RULING IN CASTILLO   VS. CFI OF BULACAN, BR. IV, G.R. NO. L-55869, FEBRUARY 20, 1984, 127 SCRA 632 WHICH DEFINES THE PROPRIETY OF SUCH SERVICE UPON MERE OVERSEERS OF PREMISES WHERE A PARTY SUPPOSEDLY RESIDES.

III. RESPONDENT COURT OF APPEALS COMMITTED [A] SERIOUS ERROR IN CONCLUDING THAT THE RESIDENCE OF THE HUSBAND IS ALSO THE RESIDENCE OF HIS WIFE CONTRARY TO THE RULING IN THE BANK OF THE PHILIPPINE ISLANDS   VS. DE COSTER , G.R. NO. 23181, MARCH 16, 1925, 47 PHIL. 594.

IV. RESPONDENT COURT OF APPEALS COMMITTED [A] SERIOUS ERROR IN FAILING TO APPLY THE RULE ON EXTRA-TERRITORIAL SERVICE OF SUMMONS UNDER SECTIONS 17 AND 18, RULE 14 OF THE REVISED RULES OF COURT. 17

The assigned errors bring to the fore the crux of the disagreement — the validity of the substituted service of summons for the trial court to acquire jurisdiction over petitioner.

The Court's Ruling

We GRANT the petition.

Acquisition of Jurisdiction

Jurisdiction over the defendant is acquired either upon a valid service of summons or the defendant's voluntary appearance in court. When the defendant does not voluntarily submit to the court's jurisdiction or when there is no valid service of summons, "any judgment of the court which has no jurisdiction over the person of the defendant is null and void." 18 In an action strictly in personam, personal service on the defendant is the preferred mode of service, that is, by handing a copy of the summons to the defendant in person. If defendant, for excusable reasons, cannot be served with the summons within a reasonable period, then substituted service can be resorted to. While substituted service of summons is permitted, "it is extraordinary in character and in derogation of the usual method of service." 19 Hence, it must faithfully and strictly comply with the prescribed requirements and circumstances authorized by the rules. Indeed, "compliance with the rules regarding the service of summons is as much important as the issue of due process as of jurisdiction." 20

Requirements for Substituted Service

Section 8 of Rule 14 of the old Revised Rules of Court which applies to this case provides:

SEC. 8. 21 Substituted service. — If the defendant cannot be served within a reasonable time as provided in the preceding section [personal service on defendant], service may be effected (a) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof. IDAESH

We can break down this section into the following requirements to effect a valid substituted service:

(1) Impossibility of Prompt Personal Service

The party relying on substituted service or the sheriff must show that defendant cannot be served promptly or there is impossibility of prompt service.22 Section 8, Rule 14 provides that the plaintiff or the sheriff is given a "reasonable time" to serve the summons to the defendant in person, but no specific time frame is mentioned. "Reasonable time" is defined as "so much time as is necessary under the circumstances for a reasonably prudent and diligent man to do, conveniently, what the contract or duty requires that should be done, having a regard for the rights and possibility of loss, if any[,] to the other party." 23 Under the Rules, the service of summons has no set period. However, when the court, clerk of court, or the plaintiff asks the sheriff to make the return of the summons and the latter submits the return of summons, then the validity of the summons lapses. The plaintiff may then ask for an alias summons if the service of summons has failed. 24 What then is a reasonable time for the sheriff to effect a personal service in order to demonstrate impossibility of prompt service? To the plaintiff, "reasonable time" means no more than seven (7) days since an expeditious processing of a complaint is what a plaintiff wants. To the sheriff, "reasonable time" means 15 to 30 days because at the end of the month, it is a practice for the branch clerk of court to require the sheriff to submit a return of the summons assigned to the sheriff for service. The Sheriff's Return provides data to the Clerk of Court, which the clerk uses in the Monthly Report of Cases to be submitted to the Office of the Court Administrator within the first ten (10) days of the succeeding month. Thus, one month from the issuance of summons can be considered "reasonable time" with regard to personal service on the defendant.

Sheriffs are asked to discharge their duties on the service of summons with due care, utmost diligence, and reasonable promptness and speed so as not to prejudice the expeditious dispensation of justice. Thus, they are enjoined to try their best efforts to accomplish personal service on defendant. On the other hand, since the defendant is expected to try to avoid and evade service of summons, the sheriff must be resourceful, persevering, canny, and diligent in serving the process on the defendant. For substituted service of summons to be available, there must be several attempts by the sheriff to personally serve the summons within a reasonable period [of one month] which eventually resulted in failure to prove impossibility of prompt service. "Several attempts" means at least three (3) tries, preferably on at least two different dates. In addition, the sheriff must cite why such efforts were unsuccessful. It is only then that impossibility of service can be confirmed or accepted.

(2) Specific Details in the Return

The sheriff must describe in the Return of Summons the facts and circumstances surrounding the attempted personal service. 25 The efforts made to find the defendant and the reasons behind the failure must be clearly narrated in detail in the Return. The date and time of the attempts on personal service, the inquiries made to locate the defendant, the name/s of the occupants of the alleged residence or house of defendant and all other acts done, though futile, to serve the summons on defendant must be specified in the Return to justify substituted service. The form on Sheriff's Return of Summons on Substituted Service prescribed in the Handbook for Sheriffs published by the Philippine Judicial Academy requires a narration of the efforts made to find the defendant personally and the fact of failure. 26 Supreme Court Administrative Circular No. 5 dated November 9, 1989 requires that "impossibility of prompt service should be shown by stating the efforts made to find the defendant personally and the failure of such efforts," which should be made in the proof of service. TIEHSA

(3) A Person of Suitable Age and Discretion

If the substituted service will be effected at defendant's house or residence, it should be left with a person of "suitable age and discretion then residing therein." 27 A person of suitable age and discretion is one who has attained the age of full legal capacity (18 years old) and is considered to have enough discernment to understand the importance of a summons. "Discretion" is defined as "the ability to make decisions which represent a responsible choice and for which an understanding of what is lawful, right or wise may be presupposed". 28 Thus, to be of sufficient discretion, such person must

know how to read and understand English to comprehend the import of the summons, and fully realize the need to deliver the summons and complaint to the defendant at the earliest possible time for the person to take appropriate action. Thus, the person must have the "relation of confidence" to the defendant, ensuring that the latter would receive or at least be notified of the receipt of the summons. The sheriff must therefore determine if the person found in the alleged dwelling or residence of defendant is of legal age, what the recipient's relationship with the defendant is, and whether said person comprehends the significance of the receipt of the summons and his duty to immediately deliver it to the defendant or at least notify the defendant of said receipt of summons. These matters must be clearly and specifically described in the Return of Summons.

(4) A Competent Person in Charge

If the substituted service will be done at defendant's office or regular place of business, then it should be served on a competent person in charge of the place. Thus, the person on whom the substituted service will be made must be the one managing the office or business of defendant, such as the president or manager; and such individual must have sufficient knowledge to understand the obligation of the defendant in the summons, its importance, and the prejudicial effects arising from inaction on the summons. Again, these details must be contained in the Return.

Invalid Substituted Service in the Case at Bar

Let us examine the full text of the Sheriff's Return, which reads:

THIS IS TO CERTIFY that on many occasions several attempts were made to serve the summons with complaint and annexes issued by this Honorable Court in the above entitled case, personally upon the defendant IMELDA 'IMEE' MARCOS-MANOTOC located at Alexandra Condominium Corporation [sic] or Alexandra Homes E-2 Room 104 No. 29 Meralco [sic] Ave., Pasig, Metro-Manila at reasonable hours of the day but to no avail for the reason that said defendant is usually out of her place and/or residence or premises. That on the 15th day of July, 1993, substituted service of summons was resorted to in accordance with the Rules of Court in the Philippines leaving copy of said summons with complaint and annexes thru [sic] (Mr) Macky de la Cruz, caretaker of the said defendant, according to (Ms) Lyn Jacinto, Receptionist and Telephone Operator of the said building, a person of suitable age and discretion, living with the said defendant at the given address who acknowledged the receipt thereof of said processes but he refused to sign (emphases supplied).

WHEREFORE, said summons is hereby returned to this Honorable Court of origin, duly served for its record and information.

Pasig, Metro-Manila July 15, 1993. 29

A meticulous scrutiny of the aforementioned Return readily reveals the absence of material data on the serious efforts to serve the Summons on petitioner Manotoc in person. There is no clear valid reason cited in the Return why those efforts proved inadequate, to reach the conclusion that personal service has become impossible or unattainable outside the generally couched phrases of "on many occasions several attempts were made to serve the summons . . . personally," "at reasonable hours during the day," and "to no avail for the reason that the said defendant is usually out of her place and/or residence or premises." Wanting in detailed information, the Return deviates from the ruling — in Domagas v. Jensen 30 and other related cases 31 — that the pertinent facts and circumstances on the efforts exerted to serve the summons personally must be narrated in the Return. It cannot be determined how many times, on what specific dates, and at what hours of the day the attempts were made. Given the fact that the substituted service of summons may be assailed, as in the present case, by a Motion to Dismiss, it is imperative that the pertinent facts and circumstances surrounding the service of summons be described with more particularity in the Return or Certificate of Service. ESTCDA

Besides, apart from the allegation of petitioner's address in the Complaint, it has not been shown that respondent Trajano or Sheriff Cañelas, who served such summons, exerted extraordinary efforts to locate petitioner. Certainly, the second paragraph of the Complaint only states that respondents were "informed, and so [they] allege" about the address and whereabouts of petitioner. Before resorting to substituted service, a plaintiff must demonstrate an effort in good faith to locate the defendant through more direct means. 32 More so, in the case in hand, when the alleged petitioner's residence or house is doubtful or has not been clearly ascertained, it would have been better for personal service to have been pursued persistently.

 

In the case Umandap v. Sabio, Jr., 33 it may be true that the Court held that a Sheriff's Return, which states that "despite efforts exerted to serve said process personally upon the defendant on several occasions the same proved futile," conforms to the requirements of valid substituted service. However, in view of the numerous claims of irregularities in substituted service which have spawned the filing of a great number of unnecessary special civil actions of certiorari and appeals to higher courts, resulting in prolonged litigation and wasteful legal expenses, the Court rules in the case at bar that the narration of the efforts made to find the defendant and the fact of failure written in broad and imprecise words will not suffice. The facts and circumstances should be stated with more particularity and detail on the number of attempts made at personal service, dates and times of the attempts, inquiries to locate defendant, names of occupants of the alleged residence, and the reasons for failure should be included in the Return to satisfactorily show the efforts undertaken. That such efforts were made to personally serve summons on defendant, and those resulted in failure, would prove impossibility of prompt personal service.

Moreover, to allow sheriffs to describe the facts and circumstances in inexact terms would encourage routine performance of their precise duties relating to substituted service — for it would be quite easy to shroud or conceal carelessness or laxity in such broad terms. Lastly, considering that monies and properties worth millions may be lost by a defendant because of an irregular or void substituted service, it is but only fair that the Sheriff's Return should clearly and convincingly show the impracticability or hopelessness of personal service.

Granting that such a general description be considered adequate, there is still a serious nonconformity from the requirement that the summons must be left with a "person of suitable age and discretion" residing in defendant's house or residence. Thus, there are two (2) requirements under the Rules: (1) recipient must be a person of suitable age and discretion; and (2) recipient must reside in the house or residence of defendant. Both requirements were not met. In this case, the Sheriff's Return lacks information as to residence, age, and discretion of Mr. Macky de la Cruz, aside from the sheriff's general assertion that de la Cruz is the "resident caretaker" of petitioner as pointed out by a certain Ms. Lyn Jacinto, alleged receptionist and telephone operator of Alexandra Homes. It is doubtful if Mr. de la Cruz is residing with petitioner Manotoc in the condominium unit considering that a married woman of her stature in society would unlikely hire a male caretaker to reside in her dwelling. With the petitioner's allegation that Macky de la Cruz is not her employee, servant, or representative, it is necessary to have additional information in the Return of Summons. Besides, Mr. Macky de la Cruz's refusal to sign the Receipt for the summons is a strong indication that he did not have the necessary "relation of confidence" with petitioner. To protect petitioner's right to due process by being accorded proper notice of a case against her, the substituted service of summons must be shown to clearly comply with the rules.

It has been stated and restated that substituted service of summons must faithfully and strictly comply with the prescribed requirements and in the circumstances authorized by the rules. 34

Even American case law likewise stresses the principle of strict compliance with statute or rule on substituted service, thus:

The procedure prescribed by a statute or rule for substituted or constructive service must be strictly pursued. 35 There must be strict compliance with the requirements of statutes authorizing substituted or constructive service. 36

Where, by the local law, substituted or constructive service is in certain situations authorized in the place of personal service when the latter is inconvenient or impossible, a strict and literal compliance with the provisions of the law must be shown in order to support the judgment based on such substituted or constructive service. 37 Jurisdiction is not to be assumed and exercised on the general ground that the subject matter of the suit is within the power of the court. The inquiry must be as to whether the requisites of the statute have been complied with, and such compliance must appear on the record. 38 The fact that the defendant had actual knowledge of attempted service does not render the service effectual if in fact the process was not served in accordance with the requirements of the statute. 39

Based on the above principles, respondent Trajano failed to demonstrate that there was strict compliance with the requirements of the then Section 8, Rule 14 (now Section 7, Rule 14 of the 1997 Rules of Civil Procedure). cSCTEH

Due to non-compliance with the prerequisites for valid substituted service, the proceedings held before the trial court perforce must be annulled.

The court a quo heavily relied on the presumption of regularity in the performance of official duty. It reasons out that "[t]he certificate of service by the proper officer is prima facie evidence of the facts set out herein, and to overcome the presumption arising from said certificate, the evidence must be clear and convincing." 40

The Court acknowledges that this ruling is still a valid doctrine. However, for the presumption to apply, the Sheriff's Return must show that serious efforts or attempts were exerted to personally serve the summons and that said efforts failed. These facts must be specifically narrated in the Return. To reiterate, it must clearly show that the substituted service must be made on a person of suitable age and discretion living in the dwelling or residence of defendant. Otherwise, the Return is flawed and the presumption cannot be availed of. As previously explained, the Return of Sheriff Cañelas did not comply with the stringent requirements of Rule 14, Section 8 on substituted service.

In the case of Venturanza v. Court of Appeals, 41 it was held that ". . . the presumption of regularity in the performance of official functions by the sheriff is not applicable in this case where it is patent that the sheriff's return is defective (emphasis supplied)." While the Sheriff's Return in the Venturanza case had no statement on the effort or attempt to personally serve the summons, the Return of Sheriff Cañelas in the case at bar merely described the efforts or attempts in general terms lacking in details as required by the ruling in the case of Domagas v. Jensen and other cases. It is as if Cañelas' Return did not mention any effort to accomplish personal service. Thus, the substituted service is void.

On the issue whether petitioner Manotoc is a resident of Alexandra Homes, Unit E-2104, at No. 29 Meralco Avenue, Pasig City, our findings that the substituted service is void has rendered the matter moot and academic. Even assuming that Alexandra Homes Room 104 is her actual residence, such fact would not make an irregular and void substituted service valid and effective.

IN VIEW OF THE FOREGOING, this Petition for Review is hereby GRANTED and the assailed March 17, 1997 Decision and October 8, 1997 Resolution of the Court of Appeals and the October 11, 1994 and December 21, 1994 Orders of the Regional Trial Court, National Capital Judicial Region, Pasig City, Branch 163 are hereby REVERSED and SET ASIDE. No costs. EHSITc

SO ORDERED.

Quisumbing, Carpio, Carpio Morales and Tinga, JJ., concur.

||| (Manotoc v. Court of Appeals, G.R. No. 130974, [August 16, 2006], 530 PHIL 454-477)

[G.R. No. L-4313. March 20, 1951.]

PEDRO P. VILLA, petitioner, vs. FIDEL IBAÑEZ, Judge of the Court of First Instance of Manila, EUGENIO ANGELES, City Fiscal, ABELARDO SUBIDO, Chief, Division of Investigation, Office

of the Mayor, City of Manila, respondents.

Peralta & Agrava, for petitioner.

City Fiscal Eugenio Angeles and Abelardo Subido in their own behalf.

SYLLABUS

1. CRIMINAL PROCEDURE; WHO ARE ELIGIBLE FOR APPOINTMENT AS SPECIAL COUNSEL. — A regular officer or employee in the Department of the Interior, more particularly in the City Mayor's Office, belongs to the class of persons disqualified for appointment to the post of special counsel. To be eligible as special counsel to aid s fiscal the appointee must be either an employee or officer in the Department of Justice (sec. 1686, Rev. Adm. Code.)

2. ID.; DEFENDANT'S PLEA TO INFORMATION IS NOT A WAIVER TO FILE MOTION TO QUASH ON LACK OF COURT'S JURISDICTION. — The defendant's plea to an information before he files a motion to quash may be a waiver of all objections to it in so far as formal objections to the pleadings are concerned. But by clear implication, if not by express provision of section 10 of Rule 113 of the Rules of Court, and by a long line of uniform decisions, questions of want of jurisdiction may be raised at any stage of the proceeding. It is a valid information signed by a competent officer which, among other requisites, confers jurisdiction on the court over the person of the accused and the subject matter of the accusation. In consonance with this view, an infirmity in the information such as lack of authority of the officer signing it can be cured by silence, acquiescence, or even by express consent.

D E C I S I O N

TUASON, J p:

Attorney Abelardo Subido, chief of the division of investigation in the office of the mayor of the City of Manila, was appointed by the then Secretary of Justice, Honorable Ricardo Nepomuceno, as special counsel to assist the City Fiscal of Manila in the cases of city government officials or employees he had investigated; and in pursuance of that appointment, he subscribed, swore to and presented an information against Pedro P. Villa, the present petitioner, for falsification of a payroll of the division of veterinary service, Manila health department. Attorney Subido's authority to file the information was thereafter challenged by the accused but was sustained by His Honor, Judge Fidel Ibañez. Hence this petition for certiorari, which is in reality a petition for prohibition and will be so regarded.

Chief ground of attack, the resolution of which will dispose of the others and to which this opinion will therefore be confined, has to do with Attorney Subido's legal qualifications for the appointment in question under section 1686 of the Revised Administrative Code, as amended by Section 4 of Commonwealth Act No. 144, which reads as follows:

"SEC. 1686. Additional counsel to assist fiscal. — The Secretary of Justice may appoint any lawyer, being either a subordinate from his office or a competent person not in the public service, temporarily to assist a fiscal or prosecuting attorney in the discharge of his duties, and with the same authority therein as might be exercised by the Attorney General or Solicitor General."

Appointments by the Secretary of Justice in virtue of the foregoing provisions of the Revised Administrative Code, as amended, were upheld in Lo Cham vs. Ocampo et al., 1 44 Official Gazette, 458, and Go Cam et al., vs. Gatmaitan et al., (47 Official Gazette, 5092) 2 . But in those cases, the appointees were officials or employees in one or another of the bureaus or offices under the Department of Justice, and were rightly considered subordinates in the office of the Secretary of Justice within the meaning of section 1686, ante.

The case at bar does not come within the rationale of the above decisions. Attorney Subido is a regular officer or employee in the Department of Interior, more particularly in the City Mayor's office. For this reason he belongs to the class of persons disqualified for appointment to the post of special counsel.

That to be eligible as special counsel to aid a fiscal the appointee must be either an employee or officer in the Department of Justice is so manifest from a bare reading of section 1686 of the Revised Administrative Code as to preclude construction. And the limitation of the range of choice in the appointment or designation is not without reason.

The obvious reason is to have appointed only lawyers over whom the Secretary of Justice can exercise exclusive and absolute power of supervision. An appointee from a branch of the government outside the Department of Justice would owe obedience to, and be subject to orders by, mutually independent superiors having, possibly, antagonistic interests. Referring particularly to the case at hand for illustration, Attorney Subido could be recalled or his time and attention be required elsewhere by the Secretary of Interior or the City Mayor while he was discharging his duties as public prosecutor, and the Secretary of Justice would be helpless to stop such recall or interference. An eventuality or state of affairs so undesirable, not to say detrimental to the public service and specially the administration of justice, the Legislature wisely intended to avoid.

The defendant had pleaded to the information before he filed a motion to quash, and it is contended that by his plea he waived all objections to the information. The contention is correct as far as formal objections to the pleading are concerned. But by clear implication if not by express provision of section 10 of Rule 113 of the Rules of Court, and by a long line of uniform decisions, questions of want of jurisdiction may be raised at any stage of the proceeding. Now, the objection to the respondent's actuations goes to the very foundations of jurisdiction. It is a valid information signed by a competent officer which, among other requisites, confers jurisdiction on the court over the person of the accused and the subject matter of the accusation. In consonance with this view, an infirmity of the nature noted in the information can not be cured by silence, acquiescence, or even by express consent.

The petition will therefore be granted and the respondent judge ordered to desist from proceeding with criminal case No. 11963 upon the information filed by Attorney Abelardo Subido, without costs.

Moran, C.J., Paras, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista Angelo, JJ., concur.

PARAS, J., I certify that Justice Feria voted to grant the petition.

||| (Villa v. Ibañez, G.R. No. L-4313, [March 20, 1951], 88 PHIL 402-405)

[G.R. No. 153176. March 29, 2004.]

PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. ZEIDA AURORA B. GARFIN, In her capacity as Presiding Judge of RTC, Branch 19, of the City of Naga and SERAFIN

SABALLEGUE, respondents.

D E C I S I O N

PUNO, J p:

For determination in this petition is a question in procedural law — whether an information filed by a state prosecutor without the prior written authority or approval of the city or provincial prosecutor or

chief state prosecutor should be dismissed after the accused has entered his plea under the information.

Petitioner comes before us with a petition for certiorari and mandamus under Rule 65 of the Revised Rules of Court, seeking to declare as null and void the Orders issued by the Regional Trial Court of Naga City, Branch 19 dated February 26, 2002 1 and April 3, 2002 2 which dismissed for lack of jurisdiction the case of People vs. Serafin Saballegue, Criminal Case No. RTC 2001-0597, and denied petitioner’s motion for reconsideration.

The antecedent facts are undisputed.

On June 22, 2001, private respondent was charged with violation of Section 22(a) in relation to Sections 19(b) and 28(e) of Republic Act No. 8282, otherwise known as the "Social Security Act," in an information which reads:

The undersigned State Prosecutor of the Office of the Regional State Prosecutor, Legazpi City, accuses SERAFIN SABALLEGUE, as proprietor of Saballegue Printing Press with business address at 16 San Mateo St., Peñafrancia Ave., Naga City for Violation of Section 22(a) in relation to Sections 19(b) and 28(e) of R.A. 8282 otherwise known as the Social Security Act of 1997, committed as follows:

That on or about February 1990 and up to the present, in the City of Naga, Philippines, within the functional jurisdiction of SSS Naga Branch and the territorial jurisdiction of this Honorable Court, the above named accused, while being the proprietor of Saballegue Printing Press, did then and there willfully, unlawfully, and criminally refuse and fail and continuously refuse and fail to remit the premiums due for his employee to the SSS in the amount of SIX THOUSAND FIVE HUNDRED THIRTY-THREE PESOS (P6,533.00), Philippine Currency, representing SSS and EC premiums for the period from January 1990 to December 1999 (n.i.), and the 3% penalty per month for late remittance in the amount of ELEVEN THOUSAND ONE HUNDRED FORTY-THREE PESOS and 28/100 (P11,143.28) computed as of 15 March 2000, despite lawful demands by letter in violation of the above-cited provisions of the law, to the damage and prejudice of the SSS and the public in general.

CONTRARY TO LAW.

Legazpi City for Naga City. 22 June 2001.

(sgd.) ROMULO SJ. TOLENTINO

State Prosecutor

Special Prosecutor on SSS Cases

in Region V 3

The information contains a certification signed by State Prosecutor Romulo SJ. Tolentino which states:

I hereby certify that the required investigation in this case has been conducted by the undersigned Special Prosecutor in accordance with law and under oath as officer of the court, that there is reasonable ground to believe that the offense has been committed, that the accused is probably guilty thereof and that the filing of the information is with the prior authority and approval of the Regional State Prosecutor. 4

The case was raffled to Branch 19 of the Regional Trial Court of Naga City presided by respondent judge Hon. Zeida Aurora B. Garfin. On September 24, 2001, accused Serafin Saballegue pleaded not guilty to the charge and the case was set for pre-trial. 5 Three days thereafter, the accused filed a motion to dismiss 6 on the ground that the information was filed without the prior written authority or approval of the city prosecutor as required under Section 4, Rule 112 of the Revised Rules of Court. 7

The People, through State Prosecutor Tolentino, filed an opposition, 8 against which the accused filed a rejoinder. 9 The People filed a reply to the rejoinder 10 on December 21, 2001. A rejoinder to the reply 11 was filed by the accused on January 21, 2002.

After considering the arguments raised, the trial court granted the motion to dismiss in its first questioned Order dated February 26, 2002, to wit:

After considering the respective arguments raised by the parties, the Court believes and so resolves that the Information has not been filed in accordance with Section 4, par. 3 of Rule 112 of the 2000 Rules on Criminal Procedure, thus:

'Rule 112, Section 4 . . .

No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy.'

Expresio unius est exclusio alterius.

The Information will readily show that it has not complied with this rule as it has not been approved by the City Prosecutor.

This Court holds that the defendant's plea to the Information is not a waiver to file a motion to dismiss or to quash on the ground of lack of jurisdiction. By express provision of the rules and by a long line of decisions, questions of want of jurisdiction may be raised at any stage of the proceedings (People vs. Eduarte, 182 SCRA 750).

The Supreme Court in Villa vs. Ibañez (88 Phil 402) dwelt on lack of authority of the officer who filed the information and on jurisdiction at the same time, pertinent portions run as follows:

The defendant had pleaded to the information before he filed a motion to quash, and it is contended that by his plea he waived all objections to the information. The contention is correct as far as formal objections to the pleadings are concerned. But by clear implication, if not by express provision of section 10 of Rule 113 of the Rules of Court, and by a long line of uniform decisions, questions of want of jurisdiction may be raised at any stage of the proceedings. Now, the objection to the respondent’s actuations goes to the very foundations of jurisdiction. It is a valid information signed by a competent officer which, among other requisites, confers jurisdiction on the court over the person of the accused and the subject matter of the accusation. In consonance with this view, an infirmity of the nature noted in the information cannot be cured by silence, acquiescence, or even by express consent. IcSEAH

Prosecutor Tolentino also contends that having been duly designated to assist the City Prosecutor in the investigation and prosecution of all SSS cases by the Regional State prosecutor as alter ego of the Secretary of Justice in Region V, then that authority may be given to other than the City Prosecutor. The Court finds this contention to be devoid of merit. The Regional State Prosecutor is not the alter ego of the Secretary of Justice but a mere subordinate official and if ever the former files cases, it is by virtue of a delegated authority by the Secretary of Justice. Potestas delegada non potesta delegare (sic) — what has been delegated cannot be redelegated.

In his opposition, the state prosecutor also attached a memorandum dated June 22, 2001 by Regional State Prosecutor Santiago M. Turingan addressed to Provincial Prosecutor and City Prosecutors of Region V directing them to inhibit and to append the following NOTATION after the certification in the Information for filing.

NOTATION: The herein City/Provincial Prosecutor is inhibiting from this case and the Special Prosecution Team on SSS Cases in Region V is authorized to dispose of the case without my approval

in view of the request for inhibition of the SSS Regional Manager as granted by the Regional State Prosecutor.

A perusal of the Information, however, would readily show that nowhere in the Information has the City Prosecutor of Naga City appended the above-quoted notation/inhibition. At most, the authority of the special prosecutor is only for the conduct of preliminary investigations and the prosecution of cases after they are filed. The Court, however, believes that the filing of this Information must be in conformity with the Rules on Criminal Procedure, particularly Section 4 of Rule 112.

WHEREFORE, premises considered and for lack of jurisdiction, the Court hereby resolves to DISMISS this case without pronouncement as to cost.

SO ORDERED. 12

A motion for reconsideration was filed by the People contending that as a special prosecutor designated by the regional state prosecutor to handle SSS cases within Region V, State Prosecutor Tolentino is authorized to file the information involving violations of the SSS law without need of prior approval from the city prosecutor. 13 Letters of commendation from Chief State Prosecutor Jovencito Zuño 14 and Secretary Hernando Perez 15 were offered as proof to show that State Prosecutor Tolentino’s authority to file the information was recognized. In response, the defense pointed out in its opposition that the motion for reconsideration lacked a notice of hearing, hence it is pro forma or a mere scrap of paper. 16

On April 3, 2002, respondent judge issued the second questioned Order which reads:

Acting upon the Motion for Reconsideration filed by State Prosecutor Romulo SJ. Tolentino, Special Prosecutor on SSS cases in Region V, and it appearing that the same has failed to comply with the requirement of notice prescribed in Sections 4 and 5, Rule 15 of the Rules of Court, the same is hereby DENIED for being a mere scrap of paper.

SO ORDERED. 17

Hence, this petition by the People through Regional State Prosecutor Santiago Turingan and State Prosecutor Romulo SJ. Tolentino. Petitioner attributes grave abuse of discretion amounting to lack or excess of jurisdiction on the part of respondent judge, viz: 18

1. RESPONDENT JUDGE DISMISSED THE INFORMATION WITHOUT THE REQUIRED SUPPORTING FACTUAL AND LEGAL BASES;

2. RESPONDENT JUDGE DELIBERATELY AND CAPRICIOUSLY IGNORED THE PRESUMPTION OF REGULARITY IN FAVOR OF THE PROSECUTION WITHOUT THE REQUIRED SUFFICIENCY OF REBUTTAL EVIDENCE. THE WORD "MAY" IN SEC. 4, RULE 112 OF THE RULES OF COURT IS NOT MANDATORY;

 

3. RESPONDENT JUDGE COMMITTED GRAVE ERROR IN DELIBERATELY IGNORING THE JUDICIALLY KNOWN INHIBITION OF THE CITY PROSECUTOR AND THE SETTLED JURISPRUDENCE ON THE MATTER;

4. RESPONDENT JUDGE GRAVELY ABUSED HER DISCRETION IN INTERFERING WITH THE PURELY EXECUTIVE FUNCTION OF FILING AN INFORMATION BY RULING ON THE AUTHORITY OF THE FILING OFFICER TO FILE THE INFORMATION.

The Office of the Solicitor General (OSG) filed its comment 19 in compliance with this Court’s Resolution dated September 23, 2002. 20 It opines that the dismissal of the information is mandated under Section 4, Rule 112 of the Rules of Criminal Procedure.

Private respondent contends that: 21 1) the instant petition was filed out of time; 2) the special State Prosecutor is only authorized to conduct preliminary investigation and prosecution of SSS cases and not to sign the information; and 3) the City Prosecutor did not expressly inhibit himself from handling SSS cases nor signing the information.

We shall first resolve the procedural issues. Respondent contends that the motion for reconsideration filed on April 1, 2002 is late because it was filed eighteen days after March 14, 2002, the date when petitioner received the first questioned order. Respondent has overlooked that the 15th day after March 14 is a Good Friday. Hence, petitioner's last day to file the motion for reconsideration was on the next working day after Good Friday, April 1. 22

Next, respondent argues that having been considered as a mere scrap of paper, the motion for reconsideration of the petitioner did not toll the running of the reglementary period. Respondent, however, erroneously assumes that the present case is an appeal by certiorari under Rule 45. As stated at the outset, this is an original petition for certiorari and mandamus under Rule 65.

Sec. 2, Rule 37 of the Rules of Court is clear. It provides that "(a) pro forma motion for new trial or reconsideration shall not toll the reglementary periodof appeal." (emphases supplied) Hence, the same provision has no application in the case at bar.

The reckoning date is the receipt of the second questioned Order and not the receipt of the first. Section 4, Rule 65, as amended by En Banc ResolutionA.M. No. 00-2-03-SC, September 1, 2000, provides, viz:

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

xxx xxx xxx

As shown by the records, petitioner received the first questioned order dated February 26, 2002 on March 14, 2002. 23 A motion for reconsideration was timely filed on April 1, 2002 24 which was dismissed for lack of notice of hearing in an Order dated April 3, 2002. 25 This second questioned order was received by petitioner on April 11, 2002. 26 A motion for extension of time to file a petition for review on certiorari was filed on April 18, 2002. 27 A motion for leave to file and admit the instant petition for certiorari and mandamus was filed on May 29, 2002. 28 Having been filed within the reglementary period, petitioner's motion for leave to file the instant petition was granted in this Court’s Resolution dated July 15, 2002. 29

We now come to the other issue: whether the prior written authority and approval of the city or provincial prosecutor or chief state prosecutor is necessary in filing the information at bar.

Petitioner takes the unbending view that the approval of the city or provincial prosecutor is no longer required. It is contended that the Regional State Prosecutor has already directed the city or provincial prosecutor to inhibit from handling SSS cases. 30 Petitioner cites the letter of Regional State Prosecutor Santiago M. Turingan to SSS Regional Director in Naga City dated June 6, 1997 31 and copies of Regional Orders No. 97-024-A 32 and 2001-03333 dated July 14, 1997 and September 28, 2001, respectively, showing the designation of State Prosecutor Tolentino as special prosecutor for SSS cases in Region V. Petitioner relies on Galvez, et al. v. Court of Appeals, et al. 34 and Sanchez v. Demetriou, et al. 35 to prop up its contention that given the designation of State Prosecutor Tolentino,

the city prosecutor need not participate in the filing and prosecution of the information in the case at bar.

We disagree. Under Presidential Decree No. 1275, the powers of a Regional State Prosecutor are as follows:

Sec. 8. The Regional State Prosecution Office: Functions of Regional State Prosecutor. — The Regional State Prosecutor shall, under the control of the Secretary of Justice, have the following functions:

a) Implement policies, plans, programs, memoranda, orders, circulars and rules and regulations of the Department of Justice relative to the investigation and prosecution of criminal cases in his region.

b) Exercise immediate administrative supervision over all provincial and city fiscals and other prosecuting officers of provinces and cities comprised within his region.

c) Prosecute any case arising within the region.

d) With respect to his regional office and the offices of the provincial and city fiscals within his region, he shall:

1) Appoint such member of subordinate officers and employees as may be necessary; and approve transfers of subordinate personnel within the jurisdiction of the regional office.

2) Investigate administrative complaints against fiscals and other prosecuting officers within his region and submit his recommendation thereon to the Secretary of Justice who shall, after review thereof, submit the appropriate recommendation to the Office of the President:Provided, that where the Secretary of Justice finds insufficient grounds for the filing of charges, he may render a decision of dismissal thereof.

3) Investigate administrative complaints against subordinate personnel of the region and submit his recommendations thereon to the Secretary of Justice who shall have the authority to render decision thereon. (emphases supplied)

The power of administrative supervision is limited to "the authority of the department or its equivalent to generally oversee the operations of such agencies and to insure that they are managed effectively, efficiently and economically but without interference with day-to-day activities; or require the submission of reports and cause the conduct of management audit, performance evaluation and inspection to determine compliance with policies, standards and guidelines of the department; to take such action as may be necessary for the proper performance of official functions, including rectification of violations, abuses and other forms of maladministration; and to review and pass upon budget proposals of such agencies but may not increase or add to them." 36 This is distinguished from the power of "supervision and control" which includes the authority "to act directly whenever a specific function is entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the commission of acts; review, approve, reverse or modify acts and decisions of subordinate officials or units; determine priorities in the execution of plans and programs; and prescribe standards, guidelines, plans and programs." 37

The Regional State Prosecutor is clearly vested only with the power of administrative supervision. As administrative supervisor, he has no power to direct the city and provincial prosecutors to inhibit from handling certain cases. At most, he can request for their inhibition. Hence, the said directive of the regional state prosecutor to the city and provincial prosecutors is questionable to say the least.

Petitioner cannot lean on the cases of Galvez and Sanchez. In those cases, the special prosecutors were acting under the directive of the Secretary of Justice. They were appointed in accordance with law. Nowhere in P.D. No. 1275 is the regional state prosecutor granted the power to appoint a special

prosecutor armed with the authority to file an information without the prior written authority or approval of the city or provincial prosecutor or chief state prosecutor. P.D. No. 1275 provides the manner by which special prosecutors are appointed, to wit:

Sec. 15. Special Counsels. — Whenever the exigencies of the service require the creation of positions of additional counsel to assist provincial and city fiscals in the discharge of their duties, positions of Special Counsels may be created by any province or city, subject to the approval of the Secretary of Justice, and with salaries chargeable against provincial or city funds. The Secretary of Justice shall appoint said Special Counsels, upon recommendation of the provincial or city fiscal and regional state prosecutors concerned, either on permanent or temporary basis.

Special Counsel shall be appointed from members of the bar and shall be allowed not more than the salary rate provided in this Decree for the lowest rank or grade of assistant fiscal in the province or city where assigned. (emphases supplied)

Under Department Order No. 318, 38 "Defining the authority, duties and responsibilities of regional state prosecutors," then Acting Secretary of Justice Silvestre H. Bello III ordered the appointed regional state prosecutors (which included Regional State Prosecutor Turingan for Region V) to, among others, "(i)nvestigate and/or prosecute, upon the directive of the Secretary of Justice, specific criminal cases filed within the region." (emphasis supplied)

In the case at bar, there is no pretense that a directive was issued by the Secretary of Justice to Regional State Prosecutor Turingan to investigate and/or prosecute SSS cases filed within his territorial jurisdiction. A bare reading of the alleged letter of commendation by then Secretary Hernando Perez would show that it does not amount to a directive or even a recognition of this authority. In fact, while the letter of Secretary Perez commends the efforts of Regional State Prosecutor Turingan in successfully prosecuting SSS cases, it also negates his authority to prosecute them. Secretary Perez called the Regional State Prosecutor's attention to DOJ Circular No. 27, series of 2001, which states that all important cases of the SSS should be referred to the Office of the Government Corporate Counsel. 39 Thus, Regional State Prosecutor Turingan cannot be considered a special prosecutor within the meaning of the law.

 

Petitioner argues that the word "may" is permissive. Hence, there are cases when prior written approval is not required, and this is one such instance. This is too simplistic an interpretation. Whether the word "may" is mandatory or directory depends on the context of its use. We agree with the OSG that the use of the permissive word "may" should be read together with the other provisions in the same section of the Rule. The paragraph immediately preceding the quoted provision shows that the word "may" is mandatory. It states:

Sec. 4, Rule 112. — . . .

Within five (5) days from his resolution, he (investigating prosecutor) shall forward the record of the case to the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the resolution within ten (10) days from their receipt thereof and shall immediately inform the parties of such action. (emphasis supplied)

Having settled that the prior authority and approval of the city, provincial or chief state prosecutor should have been obtained, we shall now resolve the more important issue: whether the lack of prior written approval of the city, provincial or chief state prosecutor in the filing of an information is a defect in the information that is waived if not raised as an objection before arraignment. HDaACI

We hold that it is not.

The provisions in the 2000 Revised Rules of Criminal Procedure that demand illumination are Sections 3 and 9 of Rule 117 in relation to paragraph 3, Section 4 of Rule 112, to wit:

Rule 117, Section 3. Grounds. — The accused may move to quash the complaint or information on any of the following grounds:

(a) That the facts charged do not constitute an offense;

(b) That the court trying the case has no jurisdiction over the offense charged;

(c) That the court trying the case has no jurisdiction over the person of the accused;

(d) That the officer who filed the information had no authority to do so;

(e) That it does not conform substantially to the prescribed form;

(f) That more than one offense is charged except when a single punishment for various offenses is prescribed by law;

(g) That the criminal action or liability has been extinguished;

(h) That it contains averments which, if true, would constitute a legal excuse or justification; and

(i) That the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent.

xxx xxx xxx

Section 9. Failure to move to quash or to allege any ground therefor. — The failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either because he did not file a motion to quash or failed to allege the same in said motion, shall be deemed a waiver of any objections except those based on the grounds provided for in paragraphs (a), (b), (g), and (i) of section 3 of this Rule. (emphasis supplied)

Rule 112, Section 4, paragraph 3 provides, viz:

No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy. (emphasis supplied)

Private respondent and the OSG take the position that the lack of prior authority or approval by the city or provincial prosecutor or chief state prosecutor is an infirmity in the information that prevented the court from acquiring jurisdiction over the case. Since lack of jurisdiction is a defect that may be raised as an objection anytime even after arraignment, the respondent judge did not err in granting the motion to dismiss based on this ground. As basis, they cite the case of Villa v. Ibañez, et al. 40 where we held, viz:

The defendant had pleaded to an information before he filed a motion to quash, and it is contended that by his plea he waived all objections to the informations. The contention is correct as far as formal objections to the pleadings are concerned. But by clear implication, if not by express provision of section 10 of Rule 113 of the Rules of Court (now Section 9 of Rule 117), and by a long line of uniform decisions, questions of want of jurisdiction may be raised at any stage of the proceeding. Now, the objection to the respondent’s actuations goes to the very foundation of the jurisdiction. It is a valid information signed by a competent officer which, among other requisites, confers jurisdiction on the court over the person of the accused and the subject matter of the accusation. In consonance with this

view, an infirmity in the information cannot be cured by silence, acquiescence, or even by express consent. 41 (emphasis supplied)

The case of Villa is authority for the principle that lack of authority on the part of the filing officer prevents the court from acquiring jurisdiction over the case. Jurisdiction over the subject matter is conferred by law while jurisdiction over the case is invested by the act of plaintiff and attaches upon the filing of the complaint or information. 42 Hence, while a court may have jurisdiction over the subject matter, like a violation of the SSS Law, it does not acquire jurisdiction over the case itself until its jurisdiction is invoked with the filing of the information.

In the United States, an information has been held as a jurisdictional requirement upon which a defendant stands trial. Thus, it has been ruled that in the absence of probable cause, the court lacks jurisdiction to try the criminal offense. 43 In our jurisdiction, we have similarly held that:

While the choice of the court where to bring an action, where there are two or more courts having concurrent jurisdiction thereon, is a matter of procedure and not jurisdiction, as suggested by appellant, the moment such choice has been exercised, the matter becomes jurisdictional. Such choice is deemed made when the proper complaint or information is filed with the court having jurisdiction over the crime, and said court acquires jurisdiction over the person of the defendant, from which time the right and power of the court to try the accused attaches. (citations omitted) It is not for the defendant to exercise that choice, which is lodged upon those who may validly file or subscribe to the complaint or information under sections 2 and 3 of Rule 106 of the Rules of Court. 44 (emphasis supplied)

A closer look at Villa would be useful in resolving the issue at hand. In that case, Atty. Abelardo Subido, Chief of the Division of Investigation in the Office of the Mayor of Manila, was appointed by the Secretary of Justice as special counsel to assist the City Fiscal of Manila in the cases involving city government officials or employees. Pursuant to his appointment, Atty. Subido filed an information against Pedro Villa for falsification of a payroll. Atty. Subido's authority to file the information was challenged on the ground that he was disqualified for appointment under Section 1686 of the RevisedAdministrative Code, as amended by Section 4 of Commonwealth Act No. 144, to wit:

SEC. 1686. Additional counsel to assist fiscal. — The Secretary of Justice may appoint any lawyer, being either a subordinate from his office or a competent person not in the public service, temporarily to assist a fiscal or prosecuting attorney in the discharge of his duties, and with the same authority therein as might be exercised by the Attorney General or Solicitor General. 45

We held, viz:

Appointments by the Secretary of Justice in virtue of the foregoing provisions of the Revised Administrative Code, as amended, were upheld in Lo Cham vs. Ocampo et al., 44 Official Gazette, 458, and Go Cam et al., vs. Gatmaitan et al., (47 Official Gazette, 5092). But in those cases, the appointees were officials or employees in one or another of the bureaus or offices under the Department of Justice, and were rightly considered subordinates in the office of the Secretary of Justice within the meaning of section 1686, ante.

The case at bar does not come within the rationale of the above decisions. Attorney Subido is a regular officer or employee in the Department of Interior, more particularly in the City Mayor’s office. For this reason, he belongs to the class of persons disqualified for appointment to the post of special counsel.

That to be eligible as special counsel to aid a fiscal the appointee must be either an employee or officer in the Department of Justice is so manifest from a bare reading of section 1686 of the Revised Administrative Code as to preclude construction. And the limitation of the range of choice in the appointment or designation is not without reason.

The obvious reason is to have appointed only lawyers over whom the Secretary of Justice can exercise exclusive and absolute power of supervision. An appointee from a branch of the government outside the Department of Justice would owe obedience to, and be subject to orders by, mutually independent superiors having, possibly, antagonistic interests. Referring particularly to the case at hand for illustration, Attorney Subido could be recalled or his time and attention be required elsewhere by the Secretary of Interior or the City Mayor while he was discharging his duties as public prosecutor, and the Secretary of Justice would be helpless to stop such recall or interference. An eventuality or state of affairs so undesirable, not to say detrimental to the public service and specially the administration of justice, the Legislature wisely intended to avoid.

The application of the 1951 Villa ruling is not confined to instances where the person who filed the information is disqualified from being a special prosecutor under Section 1686 of the Revised Administrative Code, as amended, but has been extended to various cases where the information was filed by an unauthorized officer as in the case at bar. In Cruz, Jr. v. Sandiganbayan, et al., 46 the Court held that it is a fundamental principle that when on its face the information is null and void for lack of authority to file the same, it cannot be cured nor resurrected by amendment. In that case, the Presidential Commission on Good Government (PCGG) conducted an investigation and filed an information with the Sandiganbayan against petitioner Roman Cruz, Jr. charging him with graft and corruption. The petitioner sought to quash the information on the ground that the crime charged did not constitute a "Marcos crony related crime" over which the PCGG had authority to investigate and file an information. The Court found that the crime alleged in the information was not among those which PCGG was authorized to investigate under Executive Orders No. 1 and 14 of then President Corazon Aquino and ruled that the information was null and void. Of similar import is Romualdez v. Sandiganbayan, et al. 47 where we ruled that the information having been filed by an unauthorized party (the PCGG), the information was fatally flawed. We noted that this defect is not a mere remediable defect of form, but a defect that could not be cured. SIAEHC

 

In Cudia v. Court of Appeals, et al., 48 we also reiterated the Villa ruling. The accused in that case was apprehended in Mabalacat, Pampanga for illegal possession of firearms and was brought to Angeles City where the headquarters of the arresting officers was located. The City Prosecutor of Angeles City filed an information in the Regional Trial Court of Angeles City. We invalidated the information filed by the City Prosecutor because he had no territorial jurisdiction, as the offense was committed in Mabalacat, Pampanga and his territorial jurisdiction was only in Angeles City. We held that an information, when required by law to be filed by a public prosecuting officer, cannot be filed by another. 49 Otherwise, the court does not acquire jurisdiction. 50 It is a valid information signed by a competent officer which, among other requisites, confers jurisdiction on the court over the person of the accused and the subject matter thereof. The accused’s plea to an information may be a waiver of all formal objections to the said information but not when there is want of jurisdiction. Questions relating to lack of jurisdiction may be raised at any stage of the proceeding. An infirmity in the information, such as lack of authority of the officer signing it, cannot be cured by silence, acquiescence, or even by express consent. 51

Despite modifications of the provisions on unauthorized filing of information contained in the 1940 Rules of Criminal Procedure under which Villa was decided, the 1951 Villa ruling continues to be the prevailing case law on the matter. 52

The 1940 Rules of Court provided in Rule 113, Section 10 that, if the defendant fails to move to quash the complaint or information before he pleads thereto, he shall be taken to have waived all objections which are grounds for a motion to quash except (1) "when the complaint or information does not charge an offense" or (2) "the court is without jurisdiction of the same." (emphasis ours) Among the enumerated grounds for a motion to quash under Section 2 of the same Rule was "(t)hat the fiscal has no authority to file the information." With only the above two exceptions provided by the 1940 Rules,

the Court nevertheless made the Villa ruling that if the filing officer lacks authority to file the information, jurisdiction is not conferred on the court and this infirmity cannot be cured by silence or waiver, acquiescence, or even by express consent.

The 1940 Rules of Court was amended in 1964. With only minimal changes introduced, the 1964 Rules of Court contained provisions on unauthorized filing of information similar to the above provisions of the 1940 Rules. 53

Then came the 1985 Rules of Criminal Procedure. Lack of authority of the officer who filed the information was also a ground for a motion to quash under these rules. The 1985 Rules also provided for waiver of the grounds for a motion to quash under Rule 117, Section 8, but enumerated the following exceptions to the waiver: (a) the facts charged do not constitute an offense; (b) the court trying the case has no jurisdiction over the offense charged or the person of the accused; (c) the criminal action or liability has been extinguished; and (d) the accused has been previously convicted or in jeopardy of being convicted, or acquitted of the offense charged. Apparently, the want of jurisdiction under the 1985 Rules refers to jurisdiction over the offense and the person, and not over the case as in Villa where the court did not acquire jurisdiction over the case for lack of authority of the officer who filed the information. Still, despite the enumeration, the Court continued to apply the Villa ruling as shown in the afore-cited Cruz and Cudia cases.

The 1985 Rules was amended in 2000. The 2000 Revised Rules of Criminal Procedure also provide for lack of authority of the filing officer as among the grounds for a motion to quash and the waiver of these grounds. Similar to the 1985 Rules, the Revised Rules enumerate the exceptions from the waiver, namely: (a) that the facts charged do not constitute an offense; (b) that the court trying the case has no jurisdiction over the offense charged; (c) that the criminal action or liability has been extinguished; and (d) that the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent. Under the regime of the 2000 Revised Rules, we reiterated theVilla ruling in the above-cited Romualdez case. With the enumeration of the four exceptions, which was almost a replica of the enumeration in the 1985 Rules, the 2000 Rules did not intend to abandon Villa. The Villa ruling subsisted alongside the enumerated exceptions under the 1985 Rules, and it remains to do so under the enumerated exceptions under the 2000 Rules. Neither the Rationale of the 2000 Revised Rules of Criminal Procedure nor the Minutes of the Meeting of the Committee on the Revision of the Rules of Court evinces any intent to abandon the doctrine enunciated in Villa.

In sum, we hold that, in the absence of a directive from the Secretary of Justice designating State Prosecutor Tolentino as Special Prosecutor for SSS cases or a prior written approval of the information by the provincial or city prosecutor, the information in Criminal Case No. RTC 2001-0597 was filed by an officer without authority to file the same. As this infirmity in the information constitutes a jurisdictional defect that cannot be cured, the respondent judge did not err in dismissing the case for lack of jurisdiction.

WHEREFORE, premises considered, the petition is DENIED. The respondent court’s orders dated February 26, 2002 and April 3, 2002 are AFFIRMED. Criminal Case No. RTC 2001-0597 is DISMISSED without prejudice to the filing of a new information by an authorized officer.

SO ORDERED.

Quisumbing, Austria-Martinez, Callejo, Sr. and Tinga, JJ., concur.

||| (People v. Garfin, G.R. No. 153176, [March 29, 2004])

[G.R. No. 158763. March 31, 2006.]

JOSE C. MIRANDA, ALBERTO P. DALMACIO, and ROMEO B. OCON, petitioners, vs. VIRGILIO M. TULIAO, respondent.

D E C I S I O N

CHICO-NAZARIO, J p:

This is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the 18 December 2002 Decision 1 of the Court of Appeals in CA-G.R. SP No. 67770 and its 12 June 2003 Resolution denying petitioners' Motion for Reconsideration. The dispositive portion of the assailed decision reads as follows:

WHEREFORE, finding public respondent Judge Anastacio D. Anghad to have acted with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the assailed Orders, the instant petition for certiorari, mandamus and prohibition is hereby GRANTED and GIVEN DUE COURSE, and it is hereby ordered:

1. The assailed Joint Order dated August 17, 2001, Order dated September 21, 2001, Joint Order dated October 16, 2001 and Joint Order dated November 14, 2001 dismissing the two (2) Informations for Murder, all issued by public respondent Judge Anastacio D. Anghad in Criminal Cases Nos. 36-3523 and 36-3524 are hereby REVERSED and SET ASIDE for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction, and another entered UPHOLDING, AFFIRMING[,] and REINSTATING the Order dated June 25, 2001 and Joint Order dated July 6, 2001 issued by the then acting Presiding Judge Wilfredo Tumaliuan;

2. Criminal Cases Nos. 36-3523 and 36-3524 are hereby ordered REINSTATED in the docket of active criminal cases of Branch 36 of the Regional Trial Court of Santiago City, Isabela; and

3. Public respondent Judge Anastacio D. Anghad is DIRECTED to ISSUE forthwith Warrants of Arrest for the apprehension of private respondents Jose "Pempe" Miranda, SPO3 Alberto P. Dalmacio, PO3 Romeo B. Ocon and accused Rodel T. Maderal in said Criminal Cases Nos. 36-3523 and 36-3524. 2

The factual and procedural antecedents of the case are as follows:

On 8 March 1996, two burnt cadavers were discovered in Purok Nibulan, Ramon, Isabela, which were later identified as the dead bodies of Vicente Bauzon and Elizer Tuliao, son of private respondent Virgilio Tuliao who is now under the witness protection program.

Two informations for murder were filed against SPO1 Wilfredo Leaño, SPO1 Ferdinand Marzan, SPO1 Ruben B. Agustin, SPO2 Alexander Micu, SPO2 Rodel Maderal, and SPO4 Emilio Ramirez in the Regional Trial Court (RTC) of Santiago City.

The venue was later transferred to Manila. On 22 April 1999, the RTC of Manila convicted all of the accused and sentenced them to two counts ofreclusion perpetua except SPO2 Maderal who was yet to be arraigned at that time, being at large. The case was appealed to this Court on automatic review where we, on 9 October 2001, acquitted the accused therein on the ground of reasonable doubt.

Sometime in September 1999, SPO2 Maderal was arrested. On 27 April 2001, he executed a sworn confession and identified petitioners Jose C. Miranda, PO3 Romeo B. Ocon, and SPO3 Alberto P. Dalmacio, a certain Boyet dela Cruz and Amado Doe, as the persons responsible for the deaths of Vicente Bauzon and Elizer Tuliao.

Respondent Tuliao filed a criminal complaint for murder against petitioners, Boyet dela Cruz, and Amado Doe, and submitted the sworn confession of SPO2 Maderal. On 25 June 2001, Acting Presiding Judge Wilfredo Tumaliuan issued warrants of arrest against petitioners and SPO2 Maderal.

On 29 June 2001, petitioners filed an urgent motion to complete preliminary investigation, to reinvestigate, and to recall and/or quash the warrants of arrest.

In the hearing of the urgent motion on 6 July 2001, Judge Tumaliuan noted the absence of petitioners and issued a Joint Order denying said urgent motion on the ground that, since the court did not acquire jurisdiction over their persons, the motion cannot be properly heard by the court. In the meantime, petitioners appealed the resolution of State Prosecutor Leo T. Reyes to the Department of Justice.

On 17 August 2001, the new Presiding Judge Anastacio D. Anghad took over the case and issued a Joint Order reversing the Joint Order of Judge Tumaliuan. Consequently, he ordered the cancellation of the warrant of arrest issued against petitioner Miranda. He likewise applied this Order to petitioners Ocon and Dalmacio in an Order dated 21 September 2001. State Prosecutor Leo S. Reyes and respondent Tuliao moved for the reconsideration of the said Joint Order and prayed for the inhibition of Judge Anghad, but the motion for reconsideration was denied in a Joint Order dated 16 October 2001 and the prayer for inhibition was denied in a Joint Order dated 22 October 2001.

On 25 October 2001, respondent Tuliao filed a petition for certiorari, mandamus and prohibition with this Court, with prayer for a Temporary Restraining Order, seeking to enjoin Judge Anghad from further proceeding with the case, and seeking to nullify the Orders and Joint Orders of Judge Anghad dated 17 August 2001, 21 September 2001, 16 October 2001, and 22 October 2001.

On 12 November 2001, this Court issued a Resolution resolving to grant the prayer for a temporary restraining order against Judge Anghad from further proceeding with the criminal cases. Shortly after the aforesaid resolution, Judge Anghad issued a Joint Order dated 14 November 2001 dismissing the two Informations for murder against petitioners. On 19 November 2001, this Court took note of respondent's cash bond evidenced by O.R. No. 15924532 dated 15 November 2001, and issued the temporary restraining order while referring the petition to the Court of Appeals for adjudication on the merits. SHTcDE

Respondent Tuliao filed with this Court a Motion to Cite Public Respondent in Contempt, alleging that Judge Anghad "deliberately and willfully committed contempt of court when he issued on 15 November 2001 the Order dated 14 November 2001 dismissing the informations for murder." On 21 November 2001, we referred said motion to the Court of Appeals in view of the previous referral to it of respondent's petition for certiorari, prohibition and mandamus.

On 18 December 2002, the Court of Appeals rendered the assailed decision granting the petition and ordering the reinstatement of the criminal cases in the RTC of Santiago City, as well as the issuance of warrants of arrest against petitioners and SPO2 Maderal. Petitioners moved for a reconsideration of this Decision, but the same was denied in a Resolution dated 12 June 2003.

Hence, this petition.

The facts of the case being undisputed, petitioners bring forth to this Court the following assignments of error:

FIRST ASSIGNMENT OF ERROR

With all due respect, the Honorable Court of Appeals gravely erred in reversing and setting aside the Joint Order of Judge Anastacio D. Anghad dated August 17, 2001, September 21, 2001, October 16, 2001 and November 14, 2001 issued in criminal cases numbered 36-3523 and 36-3524; and, erred in upholding, affirming and reinstating the Order dated July 6, 2001 issued by then Acting Presiding Judge Wilfredo Tumaliuan, on the alleged rule that an accused cannot seek any judicial relief if he does not submit his person to the jurisdiction of the court.

SECOND ASSIGNMENT OF ERROR

With all due respect, the Honorable Court of Appeals gravely erred in directing the reinstatement of Criminal Cases No. 36-3523 and 36-3524 in the docket of Active Criminal Cases of Branch 36 of the Regional Trial Court of Santiago City, Philippines, and in ordering the public respondent to re-issue the warrants of arrest against herein petitioners.

THIRD ASSIGNMENT OF ERROR

Wit all due respect, the Honorable Court of Appeals committed a reversible error in ordering the reinstatement of Criminal Cases No. 36-3523 and No. 36-3524 in the docket of active criminal cases of Branch 36 of the regional trial court of Santiago City, Philippines, and in ordering the public respondent to issue warrants of arrest against herein petitioners, the order of dismissal issued therein having become final and executory.

Adjudication of a motion to quash awarrant of arrest requires neitherjurisdiction over the person of theaccused, nor custody of law over thebody of the accused.

The first assignment of error brought forth by the petitioner deals with the Court of Appeals' ruling that:

[A]n accused cannot seek any judicial relief if he does not submit his person to the jurisdiction of the court. Jurisdiction over the person of the accused may be acquired either through compulsory process, such as warrant of arrest, or through his voluntary appearance, such as when he surrenders to the police or to the court. It is only when the court has already acquired jurisdiction over his person that an accused may invoke the processes of the court (Pete M. Pico vs. Alfonso V. Combing, Jr., A.M. No. RTJ-91-764, November 6, 1992). Thus, an accused must first be placed in the custody of the law before the court may validly act on his petition for judicial reliefs. 3

Proceeding from this premise, the Court of Appeals ruled that petitioners Miranda, Ocon and Dalmacio cannot seek any judicial relief since they were not yet arrested or otherwise deprived of their liberty at the time they filed their "Urgent Motion to complete preliminary investigation; to reinvestigate; to recall and/or quash warrants of arrest." 4

Petitioners counter the finding of the Court of Appeals by arguing that jurisdiction over the person of the accused is required only in applications for bail. Furthermore, petitioners argue, assuming that such jurisdiction over their person is required before the court can act on their motion to quash the warrant for their arrest, such jurisdiction over their person was already acquired by the court by their filing of the above Urgent Motion.

In arguing that jurisdiction over the person is required only in the adjudication of applications for bail, petitioners quote Retired Court of Appeals Justice Oscar Herrera:

 

Except in applications for bail, it is not necessary for the court to first acquire jurisdiction over the person of the accused to dismiss the case or grant other relief. The outright dismissal of the case even before the court acquires jurisdiction over the person of the accused is authorized under Section 6(a), Rule 112 of the Revised Rules of Criminal Procedure and the Revised Rules on Summary Procedure (Sec. 12a). In Allado vs. Diokno (232 SCRA 192), the case was dismissed on motion of the accused for lack of probable cause without the accused having been arrested. In Paul Roberts vs. Court of Appeals (254 SCRA 307), the Court was ordered to hold the issuance of a warrant of arrest in

abeyance pending review by the Secretary of Justice. And in Lacson vs. Executive Secretary (301 SCRA 102 5 ), the Court ordered the case transferred from the Sandiganbayan to the RTC which eventually ordered the dismissal of the case for lack of probable cause. 6

In arguing, on the other hand, that jurisdiction over their person was already acquired by their filing of the above Urgent Motion, petitioners invoke our pronouncement, through Justice Florenz D. Regalado, in Santiago v. Vasquez 7 :

The voluntary appearance of the accused, whereby the court acquires jurisdiction over his person, is accomplished either by his pleading to the merits (such as by filing a motion to quash or other pleadings requiring the exercise of the court's jurisdiction thereover, appearing for arraignment, entering trial) or by filing bail. On the matter of bail, since the same is intended to obtain the provisional liberty of the accused, as a rule the same cannot be posted before custody of the accused has been acquired by the judicial authorities either by his arrest or voluntary surrender.

Our pronouncement in Santiago shows a distinction between custody of the law and jurisdiction over the person. Custody of the law is required before the court can act upon the application for bail, but is not required for the adjudication of other reliefs sought by the defendant where the mere application therefor constitutes a waiver of the defense of lack of jurisdiction over the person of the accused. 8 Custody of the law is accomplished either by arrest or voluntary surrender, 9 while jurisdiction over the person of the accused is acquired upon his arrest or voluntary appearance. 10 One can be under the custody of the law but not yet subject to the jurisdiction of the court over his person, such as when a person arrested by virtue of a warrant files a motion before arraignment to quash the warrant. On the other hand, one can be subject to the jurisdiction of the court over his person, and yet not be in the custody of the law, such as when an accused escapes custody after his trial has commenced. 11 Being in the custody of the law signifies restraint on the person, who is thereby deprived of his own will and liberty, binding him to become obedient to the will of the law. 12 Custody of the law is literally custody over the body of the accused. It includes, but is not limited to, detention.

The statement in Pico v. Judge Combong, Jr., 13 cited by the Court of Appeals should not have been separated from the issue in that case, which is the application for admission to bail of someone not yet in the custody of the law. The entire paragraph of our pronouncement in Pico reads:

A person applying for admission to bail must be in the custody of the law or otherwise deprived of his liberty. A person who has not submitted himself to the jurisdiction of the court has no right to invoke the processes of that court. Respondent Judge should have diligently ascertained the whereabouts of the applicant and that he indeed had jurisdiction over the body of the accused before considering the application for bail. 14

While we stand by our above pronouncement in Pico insofar as it concerns bail, we clarify that, as a general rule, one who seeks an affirmative relief is deemed to have submitted to the jurisdiction of the court. 15 As we held in the aforecited case of Santiago, seeking an affirmative relief in court, whether in civil or criminal proceedings, constitutes voluntary appearance. HTDCAS

Pico deals with an application for bail, where there is the special requirement of the applicant being in the custody of the law. In Feliciano v. Pasicolan, 16we held that "[t]he purpose of bail is to secure one's release and it would be incongruous to grant bail to one who is free. Thus, 'bail is the security required and given for the release of a person who is in the custody of law.'" The rationale behind this special rule on bail is that it discourages and prevents resort to the former pernicious practice wherein the accused could just send another in his stead to post his bail, without recognizing the jurisdiction of the court by his personal appearance therein and compliance with the requirements therefor. 17

There is, however, an exception to the rule that filing pleadings seeking affirmative relief constitutes voluntary appearance, and the consequent submission of one's person to the jurisdiction of the court. This is in the case of pleadings whose prayer is precisely for the avoidance of the jurisdiction of the court, which only leads to a special appearance. These pleadings are: (1) in civil cases, motions to dismiss on the ground of lack of jurisdiction over the person of the defendant, whether or not other grounds for dismissal are included; 18 (2) in criminal cases, motions to quash a complaint on the ground of lack of jurisdiction over the person of the accused; and (3) motions to quash a warrant of arrest. The first two are consequences of the fact that failure to file them would constitute a waiver of the defense of lack of jurisdiction over the person. The third is a consequence of the fact that it is the very legality of the court process forcing the submission of the person of the accused that is the very issue in a motion to quash a warrant of arrest.

To recapitulate what we have discussed so far, in criminal cases, jurisdiction over the person of the accused is deemed waived by the accused when he files any pleading seeking an affirmative relief, except in cases when he invokes the special jurisdiction of the court by impugning such jurisdiction over his person. Therefore, in narrow cases involving special appearances, an accused can invoke the processes of the court even though there is neither jurisdiction over the person nor custody of the law. However, if a person invoking the special jurisdiction of the court applies for bail, he must first submit himself to the custody of the law.

In cases not involving the so-called special appearance, the general rule applies, i.e., the accused is deemed to have submitted himself to the jurisdiction of the court upon seeking affirmative relief. Notwithstanding this, there is no requirement for him to be in the custody of the law. The following cases best illustrate this point, where we granted various reliefs to accused who were not in the custody of the law, but were deemed to have placed their persons under the jurisdiction of the court. Note that none of these cases involve the application for bail, nor a motion to quash an information due to lack of jurisdiction over the person, nor a motion to quash a warrant of arrest:

1. In Allado v. Diokno, 19 on the prayer of the accused in a petition for certiorari on the ground of lack of probable cause, we issued a temporary restraining order enjoining PACC from enforcing the warrant of arrest and the respondent judge therein from further proceeding with the case and, instead, to elevate the records to us.

2. In Roberts, Jr. v. Court of Appeals, 20 upon the accused's Motion to Suspend Proceedings and to Hold in Abeyance Issuance of Warrants of Arrest on the ground that they filed a Petition for Review with the Department of Justice, we directed respondent judge therein to cease and desist from further proceeding with the criminal case and to defer the issuance of warrants of arrests against the accused.

3. In Lacson v. Executive Secretary, 21 on the prayer of the accused in a petition for certiorari on the ground of lack of jurisdiction on the part of the Sandiganbayan, we directed the Sandiganbayan to transfer the criminal cases to the Regional Trial Court even before the issuance of the warrants of arrest.

We hold that the circumstances forcing us to require custody of the law in applications for bail are not present in motions to quash the warrant of arrest. If we allow the granting of bail to persons not in the custody of the law, it is foreseeable that many persons who can afford the bail will remain at large, and could elude being held to answer for the commission of the offense if ever he is proven guilty. On the other hand, if we allow the quashal of warrants of arrest to persons not in the custody of the law, it would be very rare that a person not genuinely entitled to liberty would remain scot-free. This is because it is the same judge who issued the warrant of arrest who will decide whether or not he followed the Constitution in his determination of probable cause, and he can easily deny the motion to quash if he really did find probable cause after personally examining the records of the case.

Moreover, pursuant to the presumption of regularity of official functions, the warrant continues in force and effect until it is quashed and therefore can still be enforced on any day and at any time of the day and night. 22 Furthermore, the continued absence of the accused can be taken against him in the determination of probable cause, since flight is indicative of guilt.

In fine, as much as it is incongruous to grant bail to one who is free, it is likewise incongruous to require one to surrender his freedom before asserting it. Human rights enjoy a higher preference in the hierarchy of rights than property rights, 23 demanding that due process in the deprivation of liberty must come before its taking and not after.

 

Quashing a warrant of arrest basedon a subsequently filed petition forreview with the Secretary of Justiceand based on doubts engendered bythe political climate constitutesgrave abuse of discretion.

We nevertheless find grave abuse of discretion in the assailed actions of Judge Anghad. Judge Anghad seemed a little too eager of dismissing the criminal cases against the petitioners. First, he quashed the standing warrant of arrest issued by his predecessor because of a subsequently filed appeal to the Secretary of Justice, and because of his doubts on the existence of probable cause due to the political climate in the city. Second, after the Secretary of Justice affirmed the prosecutor's resolution, he dismissed the criminal cases on the basis of a decision of this Court in another case with different accused, doing so two days after this Court resolved to issue a temporary restraining order against further proceeding with the case.

After Judge Tumaliuan issued warrants for the arrest of petitioners, petitioner Miranda appealed the assistant prosecutor's resolution before the Secretary of Justice. Judge Anghad, shortly after assuming office, quashed the warrant of arrest on the basis of said appeal. According to Judge Anghad, ". . . prudence dictates (that) and because of comity, a deferment of the proceedings is but proper." 24

Quashal on this basis is grave abuse of discretion. It is inconceivable to charge Judge Tumaliuan as lacking in prudence and oblivious to comity when he issued the warrants of arrest against petitioners just because the petitioners might, in the future, appeal the assistant prosecutor's resolution to the Secretary of Justice. But even if the petition for review was filed before the issuance of the warrants of arrest, the fact remains that the pendency of a petition for the review of the prosecutor's resolution is not a ground to quash the warrants of arrest. cCEAHT

In Webb v. de Leon, 25 we held that the petitioners therein cannot assail as premature the filing of the information in court against them on the ground that they still have the right to appeal the adverse resolution of the DOJ Panel to the Secretary of Justice. Similarly, the issuance of warrants of arrest against petitioners herein should not have been quashed as premature on the same ground.

The other ground invoked by Judge Anghad for the quashal of the warrant of arrest is in order if true: violation of the Constitution. Hence, Judge Anghad asked and resolved the question:

In these double murder cases, did this Court comply or adhere to the above-quoted constitutional proscription, which is Sec. 2, Article III Bill of Rights; to Sec. 6(a), Rule 112, Rules of Criminal Procedure and to the above-cited decisional cases? To this query or issue, after a deep perusal of the arguments raised, this Court, through [its] regular Presiding Judge, finds merit in the contention of herein accused-movant, Jose "Pempe" Miranda. 26

Judge Anghad is referring to the following provision of the Constitution as having been violated by Judge Tumaliuan:

Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. 27

However, after a careful scrutiny of the records of the case, including the supporting evidence to the resolution of the prosecutor in his determination of probable cause, we find that Judge Anghad gravely abused his discretion.

According to petitioners:

In this case, the nullity of the order of Judge Tumaliuan, for the arrest of the petitioners is apparent from the face of the order itself, which clearly stated that the determination of probable cause was based on the certification, under oath, of the fiscal and not on a separate determination personally made by the Judge. No presumption of regularity could be drawn from the order since it expressly and clearly showed that it was based only on the fiscal's certification. 28

Petitioners' claim is untrue. Judge Tumaliuan's Joint Order contains no such indication that he relied solely on the prosecutor's certification. The Joint Order even indicated the contrary:

Upon receipt of the information and resolution of the prosecutor, the Court proceeded to determine the existence of a probable cause by personally evaluating the records . . . . 29

The records of the case show that the prosecutor's certification was accompanied by supporting documents, following the requirement under Lim, Sr. v. Felix 30 and People v. Inting. 31 The supporting documents are the following:

1. Resolution dated 21 June 2001 of State Prosecutor Leo S. Reyes;

2. Affidavit dated 22 May 2001 of Modesto Gutierrez;

3. Affidavit dated 19 May 2001 of Romeo B. Ocon;

4. Joint Counter Affidavit dated 23 May 2001 of Mayor Jose C. Miranda and Reynaldo de la Cruz;

5. Affidavit dated 19 May 2001 of Alberto Dalmacio;

6. Decision dated 22 April 1999 of the Regional Trial Court of Manila, Branch 41 in Criminal Case No. 97-160355;

7. Sworn statement dated 27 April 2001 of Rodel Maderal;

8. Information dated 22 June 2001;

9. Affidavit-complaint of Virgilio Tuliao; and

10. Medico-legal Reports of the cadavers of Elezer Tuliao and Vicente Buazon.

Hence, procedurally, we can conclude that there was no violation on the part of Judge Tumaliuan of Article III, Section 2, of the Constitution. Judge Anghad, however, focused on the substantive part of said section, i.e., the existence of probable cause. In failing to find probable cause, Judge Anghad ruled that the confession of SPO2 Maderal is incredible for the following reasons: (1) it was given after

almost two years in the custody of the National Bureau of Investigation; (2) it was given by someone who rendered himself untrustworthy for being a fugitive for five years; (3) it was given in exchange for an obvious reward of discharge from the information; and (4) it was given during the election period amidst a "politically charged scenario where "Santiago City voters were pitted against each other along the lines of the Miranda camp on one side and former City Mayor Amelita S. Navarro, and allegedly that of DENR Secretary Heherson Alvarez on the other." 32

We painstakingly went through the records of the case and found no reason to disturb the findings of probable cause of Judge Tumaliuan.

It is important to note that an exhaustive debate on the credibility of a witness is not within the province of the determination of probable cause. As we held in Webb 33 :

A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspects. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt. As well put in Brinegar v. United States, while probable cause demands more than "bare suspicion," it requires "less than evidence which would justify . . . conviction." A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt.

. . . Probable cause merely implies probability of guilt and should be determined in a summary manner. Preliminary investigation is not a part of trial . . . .

Dismissing a criminal case on thebasis of a decision of this Court inanother case with different accusedconstitutes grave abuse ofdiscretion.

Judge Anghad had quashed the warrant of arrest on the ground, among other things, that there was a petition for review of the assistant prosecutor's resolution before the Secretary of Justice. However, after the Secretary of Justice affirmed the prosecutor's resolution, Judge Anghad summarily dismissed the two criminal cases against the petitioners on the basis of the following explanation:

Rodel Maderal was one of the accused in People vs. Wilfredo Leano, et al., RTC, Branch 41, Manila, and based from his sworn statements, he pinpointed to Mr. Miranda — the mastermind and with him and the other police officers as the direct perpetrators, the October 9, 2001 Decision of the Supreme Court absolving the five cops of murder, certainly makes his sworn Statements a "narration of falsehood and lies" and that because of the decision acquitting said officers "who were likewise falsely linked by said Rodel Maderal in his April 27, 2001 statements, it is now beyond doubt that Rodel Maderal made untruthful, fabricated and perjured statements and therefore the same is without probable value." This Court agrees with the defense's views. Indeed, of what use is Maderal's statements when the Supreme Court rejected the prosecution's evidence presented and adduced in Criminal Case No. 97-160355. Rodel Maderal is supposed to turn state witness in these two (2) cases but with the Supreme Court decision adverted to, the probative value of his statements is practically nil. EaCDAT

xxx xxx xxx

This Court finds merit to the manifestation of the accused Miranda dated October 18, 2001, praying for the summary dismissal of the two (2) murder charges in view of the latest decision of the Supreme Court in People of the Philippines vs. Wilfredo Leaño, et al., G.R. No. 13886, acquitting the accused therein and in effect disregarding all the evidence presented by the prosecution in that case.

Accordingly, the two (2) informations [for] murder filed against Jose Miranda are ordered dismissed. 34

This is a clear case of abuse of discretion. Judge Anghad had no right to twist our decision and interpret it to the discredit of SPO2 Maderal, who was still at large when the evidence of the prosecution in the Leaño case was presented. A decision, even of this Court, acquitting the accused therein of a crime cannot be the basis of the dismissal of criminal case against different accused for the same crime. The blunder of Judge Anghad is even more pronounced by the fact that our decision in Leaño was based on reasonable doubt. We never ruled in Leaño that the crime did not happen; we just found that there was reasonable doubt as to the guilt of the accused therein, since the prosecution in that case relied on circumstantial evidence, which interestingly is not even the situation in the criminal cases of the petitioners in the case at bar as there is here an eyewitness: Rodel Maderal. The accused in Leaño furthermore had no motive to kill respondent Tuliao's son, whereas petitioners herein had been implicated in the testimony of respondent Tuliao before the Senate Blue Ribbon Committee.

 

It is preposterous to conclude that because of our finding of reasonable doubt in Leaño, "it is now beyond doubt that Rodel Maderal made untruthful, fabricated and perjured statements and therefore the same is without probable value." 35 On the contrary, if we are to permit the use of our decision inLeaño, an acquittal on the ground of reasonable doubt actually points to the probability of the prosecution's version of the facts therein. Such probability of guilt certainly meets the criteria of probable cause.

We cannot let unnoticed, too, Judge Anghad's dismissal of the informations two days after we resolved to issue, upon the filing of a bond, a temporary restraining order prohibiting him from further proceeding with the case. The bond was filed the day after the informations were dismissed. While the dismissal of the case was able to beat the effectivity date of the temporary restraining order, such abrupt dismissal of the informations (days after this Court's resolve to issue a TRO against Judge Anghad) creates wild suspicions about the motives of Judge Anghad.

Nullification of a proceedingnecessarily carries with it thereinstatement of the orders setaside by the nullified proceeding.

In their second assignment of error, petitioners claim that the Court of Appeals did not recall or reinstate the warrants of arrest issued by Judge Tumaliuan, but instead directed Judge Anghad to issue apparently new warrants of arrest. 36 According to the petitioners, it was an error for the Court of Appeals to have done so, without a personal determination of probable cause.

We disagree. Whether the Court of Appeals ordered the issuance of new warrants of arrest or merely ordered the reinstatement of the warrants of arrest issued by Judge Tumaliuan is merely a matter of scrupulous semantics, the slight inaccuracy whereof should not be allowed to affect the dispositions on the merits, especially in this case where the other dispositions of the Court of Appeals point to the other direction. Firstly, the Court of Appeals had reinstated the 25 June 2001 Order of Judge Tumaliuan, 37 which issued the warrants of arrest. Secondly, the Court of Appeals likewise declared the proceedings conducted by Judge Anghad void. Certainly, the declaration of nullity of proceedings should be deemed to carry with it the reinstatement of the orders set aside by the nullified proceedings. Judge Anghad's order quashing the warrants of arrest had been nullified; therefore those warrants of arrest are henceforth deemed unquashed.

Even if, however, the Court of Appeals had directed the issuance of new warrants of arrest based on a determination of probable cause, it would have been legally permissible for them to do so. The records of the preliminary investigation had been available to the Court of Appeals, and are also available to this Court, allowing both the Court of Appeals and this Court to personally examine the records of the case and not merely rely on the certification of the prosecutor. As we have ruled in Allado v. Diokno and Roberts v. Court of Appeals, the determination of probable cause does not rest on a subjective criteria. As we had resolved in those cases to overrule the finding of probable cause of the judges therein on the ground of grave abuse of discretion, in the same vein, we can also overrule the decision of a judge reversing a finding of probable cause, also on the ground of grave abuse of discretion.

There is no double jeopardy in thereinstatement of a criminal casedismissed before arraignment

In their third assignment of error, petitioners claim that the Court of Appeals committed a reversible error in ordering the reinstatement of Criminal Cases No. 36-3523 and No. 36-3524, alleging that the order of dismissal issued therein had become final and executory. According to petitioners:

It is also worthy to point out at this juncture that the Joint Order of Judge Anghad dated November 14, 2001 is NOT ONE of those Orders which were assailed in the private respondent Tuliao's Petition for Certiorari, Mandamus and Prohibition filed by the private respondent before the Court of Appeals. As carefully enumerated in the first page of the assailed Decision, only the following Orders issued by Judge Anghad were questioned by private respondent, to wit:

1.) Joint Order dated August 17, 2001;

2.) Order dated September 21, 2001;

3.) Joint Order dated October 16, 2001; and

4.) Joint Order dated October 22, 2001.

Obviously, the Joint Order dated November 14, 2001 of Judge Anghad, which ultimately dismissed Criminal Cases Nos. 36-3523 AND 36-3524 is NOT included in the list of the assailed Order/Joint Orders. Hence, the Court of Appeals should not have passed upon the validity or nullity of the Joint Order of November 14, 2001. 38

Petitioners must have forgotten that respondent Tuliao's Petition for Certiorari, Prohibition and Mandamus was filed not with the Court of Appeals, but with this Court. The Court of Appeals decided the case because we referred the same to them in our 19 November 2001 Resolution. Such petition was filed on 25 October 2001, around three weeks before the 14 November 2001 Order. Upon receipt of the 14 November 2001 Order, however, respondent Tuliao lost no time in filing with this Court a Motion to Cite Public Respondent in Contempt, alleging that Judge Anghad "deliberately and willfully committed contempt of court when he issued on 15 November 2001 the Order dated 14 November 2001 dismissing the informations for murder." On 21 November 2001, we referred said motion to the Court of Appeals, in view of the previous referral of respondent Tuliao's petition forcertiorari, prohibition and mandamus. EDATSI

Our referral to the Court of Appeals of the Motion to Cite Public Respondent in Contempt places the 14 November 2001 Order within the issues of the case decided by the Court of Appeals. In claiming that Judge Anghad committed contempt of this Court in issuing the 14 November 2001 Order, respondent Tuliao had ascribed to Judge Anghad an act much more serious than grave abuse of discretion.

Respondent Tuliao claims that Judge Anghad issued the 14 November 2001 Order on 15 November 2001, antedating it so as to avoid the effects of our 12 November 2001 Resolution. In said 12 November 2001 Resolution, we resolved to issue a temporary restraining order enjoining Judge Anghad from further proceeding with the criminal cases upon the respondent Tuliao's filing of a bond in the amount of P20,000.00. Respondent Tuliao had filed the bond on 15 November 2005.

While we cannot immediately pronounce Judge Anghad in contempt, seeing as disobedience to lawful orders of a court and abuse of court processesare cases of indirect contempt which require the granting of opportunity to be heard on the part of respondent, 39 the prayer to cite public respondent in contempt and for other reliefs just and equitable under the premises should be construed to include a prayer for the nullification of said 14 November 2001 Order.

In any case, the reinstatement of a criminal case dismissed before arraignment does not constitute double jeopardy. Double jeopardy cannot be invoked where the accused has not been arraigned and it was upon his express motion that the case was dismissed. 40

As to respondent Tuliao's prayer (in both the original petition for certiorari as well as in his motion to cite for contempt) to disqualify Judge Anghad from further proceeding with the case, we hold that the number of instances of abuse of discretion in this case are enough to convince us of an apparent bias on the part of Judge Anghad. We further resolve to follow the case of People v. SPO1 Leaño, 41 by transferring the venue of Criminal Cases No. 36-3523 and No. 36-3524 to the City of Manila, pursuant to Article VIII, Section 4, of the Constitution.

WHEREFORE, the petition is DENIED. The Decision dated 18 December 2002 and the Resolution dated 12 June 2003 of the Court of Appeals are hereby AFFIRMED, with the modification that Criminal Cases No. 36-3523 and No. 36-3524 be transferred to and raffled in the Regional Trial Court of the City of Manila. In this connection,

1) Let a copy of this decision be furnished the Executive Judge of the RTC of the City of Santiago, Isabela, who is directed to effect the transfer of the cases within ten (10) days after receipt hereof;

2) The Executive Judge of the RTC of the City of Santiago, Isabela, is likewise directed to report to this Court compliance hereto within ten (10) days from transfer of these cases;

3) The Executive Judge of the City of Manila shall proceed to raffle the criminal cases within ten (10) days from the transfer;

4) The Executive Judge of the City of Manila is likewise directed to report to this Court compliance with the order to raffle within ten (10) days from said compliance; and

5) The RTC Judge to whom the criminal cases are raffled is directed to act on said cases with reasonable dispatch. HAEIac

6) Finally, Judge Anastacio D. Anghad is directed to issue forthwith warrants of arrest for the apprehension of petitioners Jose C. Miranda, Alberto P. Dalmacio, Romeo B. Ocon, and accused Rodel T. Maderal, conformably with the decision of the Court of Appeals dated 18 December 2002.

The Temporary Restraining Order issued by this Court dated 4 August 2003 is hereby LIFTED. Costs against Petitioners.

SO ORDERED.

Panganiban, C.J., Ynares-Santiago, Austria-Martinez and Callejo, Sr., JJ., concur.

||| (Miranda v. Tuliao, G.R. No. 158763, [March 31, 2006], 520 PHIL 907-934)