FIRST DIVISION

G.R. No. 212920, September 16, 2015

COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. NIPPON EXPRESS

(PHILS.) CORPORATION, Respondent.

DECISION

PERLAS-BERNABE, J.:

Assailed in this petition for review on certiorari1 are the Decision2 dated December 18,
2013 and the Resolution3 dated June 10, 2014 of the Court of Tax Appeals (CTA) En
Banc in CTA EB No. 924, which affirmed the Resolution4 dated July 31, 2012 of the
CTA Third Division (CTA Division) in CTA Case No. 6967, granting respondent Nippon
Express (Phils.) Corporation's (Nippon) motion to withdraw petition for review5 (motion
to withdraw).

The Facts

Nippon is a domestic corporation duly organized and existing under Philippine laws
which is primarily engaged in the business of freight forwarding, namely, in the
international and domestic air and sea freight and cargo forwarding, hauling, carrying,
handling, distributing, loading, and unloading general cargoes and all classes of goods,
wares, and merchandise, and the operation of container depots, warehousing, storage,
hauling, and packing facilities.6 It is a Value-Added Tax (VAT) registered entity with Tax
Identification No. VAT Registration No. 004-669-434-000.7 As such, it filed its quarterly
VAT returns for the year 2002 on April 25, 2002, July 25, 2002, October 25, 2002, and
January 27, 2003, respectively.8 It maintained that during the said period it incurred
input VAT attributable to its zero-rated sales in the amount of P28,405,167.60, from
which only P3,760,660.74 was applied as tax credit, thus, reflecting refundable excess
input VAT in the amount of P24,644,506.86.9

On April 22, 2004, Nippon filed an administrative claim for refund 10 of its unutilized input
VAT in the amount of P24,644,506.86 for the year 2002 before the Bureau of Internal
Revenue (BIR).11 A day later, or on April 23, 2004, it filed a judicial claim for tax refund,
by way of petition for review,12 before the CTA, docketed as CTA Case No. 6967.13

For its part, petitioner the Commissioner of Internal Revenue (CIR) asserted, inter alia,
that the amounts being claimed by Nippon as unutilized input VAT were not properly
documented, hence, should be denied.14

Proceedings Before the CTA Division

In a Decision15 dated August 10, 2011, the CTA Division partially granted Nippon's
claim for tax refund, and thereby ordered the CIR to issue a tax credit certificate in the
reduced amount of P2,614,296.84, representing its unutilized input VAT which was
attributable to its zero-rated sales.16 It found that while Nippon timely filed its
administrative and judicial claims within the two (2)-year prescriptive period,17 it,
however, failed to show that the recipients of its services - which, in this case, were
mostly Philippine Economic Zone Authority registered enterprises - were non-residents
"doing business outside the Philippines." Accordingly, it concluded that Nippon's
purported sales therefrom could not qualify as zero-rated sales, hence, the reduction in
the amount of tax credit certificate claimed.18

Before its receipt of the August 10, 2011 Decision, or on August 12, 2011, Nippon filed
a motion to withdraw,19 considering that the BIR, acting on its administrative claim,
already issued a tax credit certificate in the amount of P21,675,128.91 on July 27, 2011
(July 27, 2011 Tax Credit Certificate).

Separately, the CIR moved for reconsideration20 of the August 10, 2011 Decision and
filed its comment/opposition21 to Nippon's motion to withdraw, claiming that: (a) the CTA
Division had already resolved the factual issue pertaining to Nippon's entitlement to a
tax credit certificate, which, after trial, was proven to be only in the amount of
P2,614,296.84; (b) the issuance of the July 27, 2011 Tax Credit Certificate was bereft of
factual and legal bases, and prejudicial to the interest of the government; and (c)
Nippon's motion to withdraw was "tantamount to [a] withdrawal and abandonment of its
[mjotion for [reconsideration also filed in this case."22

Thereafter, Nippon, which maintained that it only had notice of the August 10, 2011
Decision on August 16, 2011,23 likewise sought for reconsideration,24 praying that the
CTA Division set aside its August 10, 2011 Decision and render judgment ordering the
CIR to issue a tax credit certificate in the full amount of P24,644,506.86, or in the
alternative, grant its motion to withdraw.25cralawred

In a Resolution dated July 31, 2012,26 the CTA Division granted Nippon's motion to
withdraw and, thus, considered the case closed and terminated.27 It found that pursuant
to Revenue Memorandum Circular No. 49-03 (RMC No. 49-03) dated August 15,
2003, Nippon correctly availed of the proper remedy notwithstanding the promulgation
of the August 10, 2011 Decision. It added that in approving the withdrawal of Nippon's
petition for review, it exercised its discretionary authority under Section 3, Rule 50 of the
Rules of Court after due consideration of the reasons proffered by Nippon, namely: (a)
that the parties had already arrived at a reasonable settlement of the issues; (b) further
legal and related costs would be avoided; and (c) the court's time and resources would
be saved.28

Aggrieved, the CIR elevated29 its case to the CTA En Banc.

The CTA En Banc Ruling

In a Decision30 dated December 18, 2013, the CTA En Banc affirmed the July 31, 2012
Resolution of the CTA Division granting Nippon's motion to withdraw.31 It debunked the
CIR's assertions that Nippon failed to comply with the requirements set forth in RMC
No. 49-03 - i.e., that Nippon failed to notify the BIR that it agreed with its findings and to
file the necessary motion before the CTA Division prior to the promulgation of its
Decision -noting that RMC No. 49-03 did not expressly require a taxpayer to inform the
BIR of its assent nor prescribe a definite period for filing a motion to withdraw. It also
observed that the CIR did not deny the existence and issuance of the July 27, 2011 Tax
Credit Certificate. In this regard, the same may be taken judicial notice of, and the need
for its formal offer dispensed with.32

The CIR moved for partial reconsideration33 which was, however, denied by the CTA En
Banc in a Resolution34 dated June 10, 2014; hence, this petition.

The Issue Before the Court

The core issue in this case is whether the CTA properly granted Nippon's motion to
withdraw.

The Court's Ruling

The petition is meritorious.

A perusal of the Revised Rules of the Court of Tax Appeals35 (RRCTA) reveals the lack
of provisions governing the procedure for the withdrawal of pending appeals before the
CTA. Hence, pursuant to Section 3, Rule 1 of the RRCTA, the Rules of Court shall
suppletorily apply:
Sec. 3. Applicability of the Rules of Court. - The Rules of Court in the Philippines shall
apply suppletorily to these Rules.
Rule 50 of the Rules of Court - an adjunct rule to the appellate procedure in the CA
under Rules 42, 43, 44, and 46 of the Rules of Court which are equally adopted in the
RRCTA36 - states that when the case is deemed submitted for resolution, withdrawal of
appeals made after the filing of the appellee's brief may still be allowed in the discretion
of the court:
RULE 50
DISMISSAL OF APPEAL

xxxx

Section 3. Withdrawal of appeal. — An appeal may be withdrawn as of right at any time

before the filing of the appellee's brief. Thereafter, the withdrawal may be allowed in
the discretion of the court. (Emphasis supplied)
Impelled by the BIR's supervening issuance of the July 27, 2011 Tax Credit Certificate,
Nippon filed a motion to withdraw the case, proffering that:
Having arrived at a reasonable settlement of the issues with the [CIR]/BIR, and to avoid
incurring further legal and related costs, not to mention the time and resources of [the
CTA], [Nippon] most respectfully moves for the withdrawal of its Petition for Review. 37
Finding the aforementioned grounds to be justified, the CTA Division allowed the
withdrawal of Nippon's appeal thereby ordering the case closed and terminated,
notwithstanding the fact that the said motion was filed after the promulgation of its
August 10, 2011 Decision.

While it is true that the CTA Division has the prerogative to grant a motion to withdraw
under the authority of the foregoing legal provisions, the attendant circumstances in this
case should have incited it to act otherwise.

First, it should be pointed out that the August 10, 2011 Decision was rendered by the
CTA Division after a full-blown hearing in which the parties had already ventilated their
claims. Thus, the findings contained therein were the results of an exhaustive study of
the pleadings and a judicious evaluation of the evidence submitted by the parties, as
well as the report of the commissioned certified public accountant. In Reyes v.
Commission on Elections, the Court only noted, and did not grant, a motion to withdraw
the petition filed after it had already acted on said petition, ratiocinating in the following
wise:
It may well be in order to remind petitioner that jurisdiction, once acquired, is not lost
upon the instance of the parties, but continues until the case is terminated. When
petitioner filed her Petition for Certiorari jurisdiction vested in the Court and, in fact, the
Court exercised such jurisdiction when it acted on the petition. Such jurisdiction cannot
be lost by the unilateral withdrawal of the petition by petitioner.39
The primary reason, however, that militates against the granting of the motion to
withdraw is the fact that the CTA Division, in its August 10, 2011 Decision, had already
determined that Nippon was only entitled to refund the reduced amount
of P2,614,296.84 since it failed to prove that the recipients of its services were non-
residents "doing business outside the Philippines"; hence, Nippon's purported sales
therefrom could not qualify as zero-rated sales, necessitating the reduction in the
amount of refund claimed. Markedly different from this is the BIR's determination that
Nippon should receive P21,675,128.91 as per the July 27, 2011 Tax Credit Certificate,
which is, in all, P19,060,832.07 larger than the amount found due by the CTA Division.
Therefore, as aptly pointed out by Associate Justice Teresita J. Leonardo-De Castro
during the deliberations on this case, the massive discrepancy alone between the
administrative and judicial determinations of the amount to be refunded to Nippon
should have already raised a red flag to the CTA Division. Clearly, the interest of the
government, and, more significantly, the public, will be greatly prejudiced by the
erroneous grant of refund - at a substantial amount at that - in favor of Nippon. Hence,
under these circumstances, the CTA Division should not have granted the motion to
withdraw.

In this relation, it deserves mentioning that the CIR is not estopped from assailing the
validity of the July 27, 2011 Tax Credit Certificate which was issued by her subordinates
in the BIR. In matters of taxation, the government cannot be estopped by the mistakes,
errors or omissions of its agents for upon it depends the ability of the government to
serve the people for whose benefit taxes are collected.40

Finally, the Court has observed that based on the records, Nippon's administrative claim
for the first taxable quarter of 2002 which closed on March 31, 2002 was already time-
barred41 for being filed on April 22, 2004, or beyond the two (2)-year prescriptive period
pursuant to Section 112(A)42 of the National Internal Revenue Code of 1997. Although
prescription was not raised as an issue, it is well-settled that if the pleadings or the
evidence on record show that the claim is barred by prescription, the Court may motu
proprio order its dismissal on said ground.43

All told, the CTA committed a reversible error in granting Nippon's motion to withdraw.
The August 10, 2011 Decision of the CTA Division should therefore be reinstated,
without prejudice, however, to the right of either party to appeal the same in accordance
with the RRCTA.

WHEREFORE, the petition is GRANTED. The Decision dated December 18, 2013 and
the Resolution dated June 10, 2014 of the Court of Tax Appeals En Banc in CTA EB
Case No. 924 are hereby SET ASIDE. The Decision dated August 10, 2011 of the Court
of Tax Appeals Third Division in CTA Case No. 6967 is REINSTATED, without
prejudice, however, to the right of either party to appeal the same in accordance with
the Revised Rules of the Court of Tax Appeals.

SO ORDERED.chanroblesvirtuallawlibrary

Sereno, C.J., (Chairperson), Leonardo-De Castro, Bersamin, and Perez, JJ., concur.

SECOND DIVISION

G.R. No. 170462, February 05, 2014

RODOLFO GUEVARRA AND JOEY GUEVARRA, Petitioners, v. PEOPLE OF THE

PHILIPPINES, Respondent.

DECISION

BRION, J.:

We review in this petition for review on certiorari1 the decision2 dated October 24, 2005
of the Court of Appeals (CA) in CA–G.R. CR No. 28899. The CA affirmed, with
modification on the amount of damages, the joint decision3 dated April 16, 2004 of the
Regional Trial Court (RTC), Branch 20, Cauayan City, Isabela, finding Rodolfo
Guevarra and Joey Guevarra (petitioners) guilty beyond reasonable doubt of the crimes
of frustrated homicide and homicide.

Factual Antecedents

Rodolfo and his son, Joey, were charged with the crimes of frustrated homicide and
homicide under two Informations which read:

In Criminal Case No. Br. 20–1560 for Frustrated Homicide:chanRoblesvirtualLawlibrary

That on or about the 8th day of January, 2000, in the municipality of Alicia, province of
Isabela, Philippines, and within the jurisdiction of this Honorable Court, the said
accused, conspiring, confederating together and helping one another, with intent to kill
and without any just motive, did then and there, willfully, unlawfully and feloniously,
assault, attack, hack and stab for several times with a sharp pointed bolo one Erwin
Ordoñez, who as a result thereof, suffered multiple hack and stab wounds on the
different parts of his body, which injuries would ordinarily cause the death of the said
Erwin Ordoñez, thus, performing all the acts of execution which should have produced
the crime of homicide as a consequence, but nevertheless, did not produce it by reason
of causes independent of their will, that is, by the timely and able medical assistance
rendered to the said Erwin Ordoñez, which prevented his
death.4ChanRoblesVirtualawlibrary
In Criminal Case No. Br. 20–1561 for Homicide:chanRoblesvirtualLawlibrary
That on or about the 8th day of January, 2000, in the municipality of Alicia, province of
Isabela, Philippines, and within the jurisdiction of this Honorable Court, the said
accused, conspiring, confederating together and helping one another, with intent to kill
and without any just motive, did then and there, willfully, unlawfully and feloniously,
assault, attack, hack and stab for several times with. sharp pointed bolo one David
Ordoñez, who as. result thereof, suffered multiple hack and stab wounds on the
different parts of his body which directly caused his death.5ChanRoblesVirtualawlibrary
Although the informations stated that the crimes were committed on January 8, 2000,
the true date of their commission is November 8, 2000, as confirmed by the CA through
the records.6 The parties failed to raise any objection to the discrepancy.7cralawred

On arraignment, the petitioners pleaded not guilty to both charges.8 The cases were
jointly tried with the conformity of the prosecution and the defense. At the pre–trial, the
petitioners interposed self–defense, which prompted the RTC to conduct reverse trial of
the case.9 During the trial, the parties presented different versions of the events that
transpired on November 8, 2000.

Version of the Defense

To prove the petitioners’ claim of self–defense, the defense presented the testimonies
of Rodolfo, Joey, and the petitioners’ neighbor, Balbino Agustin.

Testimony of Rodolfo

Rodolfo, who was then fifty–five (55) years old, narrated that, at around 11:00 p.m., on
November 8, 2000, brothers Erwin Ordoñez and David Ordoñez, together with their
companion, Philip Vingua, forced their way into his compound and threw stones at his
house and tricycle. Through the back door of his house, Rodolfo went down to the
basement or “silung” and shouted at the three men to stop. David saw him, threatened
to kill him, and struck him with a “panabas,” hitting him on the palm of his left hand.
Rodolfo responded by reaching for the bolo tucked in the “solera” of his house, and
hacked and stabbed Erwin and David until the two brothers fell to the ground. Upon
seeing Erwin and David lying on the ground, Rodolfo called on someone to bring the
brothers to the hospital. He stayed in his house until the policemen arrived.

Testimony of Joey

Joey, who was then thirty–one (31) years old, narrated that, at around 11:00 p.m., on
November 8, 2000, he was awakened by the sound of stones being thrown at their
house in Bliss, Paddad, Alicia, Isabela. Through the window, he saw Erwin, David and
Philip breaking into their gate, which was made of wood and interlink wire and located
five (5) to six (6) meters away from their house. He then heard his father Rodolfo say to
the three men, “kung ano man ang problema bukas na natin pag–usapan[,]”10 and
David retorted in their dialect, ”Okininam nga lakay adda ka gayam dita, patayin
taka[.]”11cralawred

Testimony of Balbino

Balbino narrated that, from inside his house in Bliss, Paddad, Alicia, Isabela, at around
10:00 p.m., on November 8, 2000, he heard. person from the outside saying “Sige
banatan ninyo na[.]” 12 He opened his door and saw David, Erwin and Philip throwing
stones at the house of his neighbor Crisanto Briones. Briones got mad and scolded the
three men, “Why are you hitting my house? Why don’t you hit the house of your
enemy, mga tarantado kayo!”13 David, Erwin and Philip then aimed their stones at the
petitioners’ house. Balbino heard David calling out to Joey, “Joey,kung tunay kang lalaki
lumabas ka diyan sa kalsada at dito tayo magpatayan[,]”14 but no one came out of
Rodolfo’s house. The stoning lasted for about thirty (30) minutes.

Afterwards, Balbino saw David, Erwin and Philip destroy Rodolfo’s gate and pull the
gate towards the road. He heard David say to his companions, “koberan ninyo ako at
papasok kami[.]”15 David, Erwin and Philip entered the petitioners’ compound and
damaged Rodolfo’s tricycle with stones and their “panabas.” Also, he heard Rodolfo say
to David in Filipino that they could just talk about their problems with him the following
day. But David approached Rodolfo and hacked him with a “panabas.” Rodolfo parried
the blow with the back of his hand, and David and Rodolfo struggled for the possession
of the “panabas.”

Balbino also saw Erwin hit Rodolfo on the face with a stone and Joey was hit on his
right foot, causing Rodolfo and Joey to retreat to the “silung” of their house from where
Rodolfo got “something shiny,” and with it stabbed David and Erwin. He saw the two
brothers fall to the ground.

Version of the Prosecution

As its rebuttal witness, the prosecution presented the sole testimony of Erwin who
survived the hacking.

Erwin narrated that, at around 10:00 to 11:00 p.m., on November 8, 2000, he, his
brother David and Philip went to. birthday party and passed in front of the petitioners’
compound. He was walking twenty (20) meters ahead of his companions when,
suddenly, Philip ran up to him saying that David was being stabbed by Joey with. bolo.
While approaching the scene of the stabbing, which was three (3) meters away from
where his brother David was, Erwin was met by Rodolfo who then hacked him, hitting
his arm and back. Thereafter, Rodolfo and Joey dragged Erwin inside the petitioners’
compound and kept on hacking him. He was hacked and stabbed thirteen (13) times.
He became weak and ultimately fell to the ground.

Erwin denied that he and David threw stones at the petitioners’ house and damaged
Rodolfo’s tricycle. They did not likewise destroy the petitioners’ gate, which was only
damaged when his brother David clung on to it while he was being pulled by Rodolfo
and Erwin into their compound. While they were being hacked and stabbed by Rodolfo
and Erwin, stones actually rained on them and people outside the petitioners’ gate were
saying, “Do not kill the brothers. Allow them to come out.”16

After the incident, Erwin and David, both unconscious, were brought to the hospital.
David died in the hospital while being treated for his wounds.

The RTC’s Ruling

In a decision dated April 16, 2004, the RTC gave credence to the prosecution’s version
of the incident and found the petitioners guilty beyond reasonable doubt of the crimes of
frustrated homicide and homicide. It disbelieved the defense’s version of the events due
to material inconsistencies in the testimonies of the defense witnesses. It denied the
petitioners’ claim of self–defense for lack of clear, convincing and satisfactory
supporting evidence.

The RTC explained in its decision that “[w]hen an accused invokes the justifying
circumstance of self–defense, he loses the constitutional presumption of innocence and
assumes the burden of proving, with clear and convincing evidence, the justification for
his act”;17 that self–defense is an affirmative allegation which must be proven with
certainty by sufficient, satisfactory and convincing evidence that excludes any vestige of
criminal aggression on the part of the person invoking it.18 The RTC held that the
petitioners miserably failed to prove that there was unlawful aggression on the part of
the victims, Erwin and David.

Accordingly, the RTC disposed of the case as follows:chanRoblesvirtualLawlibrary

WHEREFORE, finding the accused Rodolfo Guevarra and Joey Guevarra guilty beyond
reasonable doubt of the crimes for which they are charged, and absent any mitigating or
aggravating circumstance/s that attended the commission of the crimes, the Court
hereby sentences each of the accused to suffer –

In Criminal Case No. Br. 20–1560 for Frustrated Homicide – an indeterminate penalty
ranging from Three (3) years and one day of prision correccional as minimum to Nine
(9) years of prision mayor as maximum and to indemnify the victim Erwin Ordoñez
moral damages in the amount of Twenty Thousand (P20,000.00) Pesos, without any
subsidiary imprisonment in case of insolvency. Cost against the accused.
In Criminal Case No. Br. 20–1561 for Homicide – an indeterminate penalty ranging from
Eight (8) years and one day of prision mayor as minimum to Fifteen (15) years of
Reclusion Temporal as maximum and to indemnify the heirs of the deceased David
Ordoñez Sixty Thousand. P60,000.00) Pesos plus Thirty Thousand. P30,000.00) Pesos
as moral damages without subsidiary imprisonment in case of insolvency. Costs against
the accused.

The bail bonds of the accused are CANCELLED.19ChanRoblesVirtualawlibrary

The CA’s Ruling

On appeal, the CA affirmed the RTC’s judgment and convicted the petitioners of the
crimes charged. As the RTC did, the CA found that Erwin and David committed no
unlawful aggression sufficient to provoke the actions of the petitioners; that
“[a]ggression, to be unlawful, must be actual and imminent, such that there is. real
threat of bodily harm to the person resorting to self–defense or to others whom that
person is seeking to defend.”20 Even assuming the truth of the petitioners’ claims that
David challenged Joey to a fight and threatened to kill Rodolfo on the night of November
8, 2000, the CA held that these acts do not constitute unlawful aggression to justify the
petitioners’ actions as no real or actual danger existed as the petitioners were then
inside the safety of their own home.

The CA further held that the petitioners’ plea of self–defense was belied by the nature
and number of wounds inflicted on Erwin, who sustained thirteen (13) stab wounds on
his arm and back, and David, who suffered around ten (10) stab wounds on his back
and stomach causing his death. These wounds logically indicated that the assault was
no longer an act of self–defense but a determined homicidal aggression on the part of
the petitioners.21

The CA, however, found error in the amounts of civil indemnity and moral damages
awarded by the RTC. Thus, the CA modified the RTC’s decision in this
wise:chanRoblesvirtualLawlibrary
WHEREFORE, the appealed Decision is AFFIRMED with MODIFICATION. In Crim.
Case No. Br. 20–1561, appellants RODOLFO GUEVARRA and JOEY GUEVARRA are
each ordered to pay the heirs of the deceased David Ordonez the sum of Fifty
Thousand Pesos (P50,000.00) as civil indemnity and another Fifty Thousand Pesos
(P50,000.00) as moral damages.22ChanRoblesVirtualawlibrary
The Petition

In the present petition, the petitioners raise the following

issues:chanRoblesvirtualLawlibrary
A.

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN FAILING

TO APPRECIATE THE PRESENCE OF THE JUSTIFYING CIRCUMSTANCE OF
SELF–DEFENSE DESPITE CLEAR AND CONVINCING EVIDENCE SHOWING THE
ELEMENTS OF SELF–DEFENSE.

B.

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN GIVING

FULL CREDENCE TO THE TESTIMONY OF THE LONE WITNESS OF THE
PROSECUTION.

C.

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN NOT

ACQUITTING PETITIONER JOEY GUEVARRA WHO HAS NO PARTICIPATION IN
THE SAID INCIDENT.23ChanRoblesVirtualawlibrary
Our Ruling

We deny the present petition as we find no reversible error in the CA decision of

October 24, 2005.

At the outset, we emphasize that the Court’s review of the present case is via petition
for review under Rule 45, which generally bars any question pertaining to the factual
issues raised. The well–settled rule is that questions of fact are not reviewable in
petitions for review under Rule 45, subject only to certain exceptions, among them, the
lack of sufficient support in evidence of the trial court’s judgment or the appellate court’s
misapprehension of the adduced facts.24

The petitioners fail to convince us that we should review the findings of fact in this case.
Factual findings of the RTC, when affirmed by the CA, are entitled to great weight and
respect by this Court and are deemed final and conclusive when supported by the
evidence on record.25 We find that both the RTC and the CA fully considered the
evidence presented by the prosecution and the defense, and they have adequately
explained the legal and evidentiary reasons in concluding that the petitioners are guilty
of the crimes of frustrated homicide and homicide.

In the absence of any showing that the trial and appellate courts overlooked certain
facts and circumstances that could substantially affect the outcome of the present case,
we uphold the rulings of the RTC and the CA which found the elements of these crimes
fully established during the trial.

The crime of frustrated homicide is committed when: (1) an “accused intended to kill his
victim, as manifested by his use of deadly weapon in his assault; (2) the victim
sustained fatal or mortal wound/s but did not die because of timely medical assistance;
and (3) none of the qualifying circumstance for murder under Article 248 of the Revised
Penal Code is present.”26

On the other hand, the crime of homicide is committed when: (1) a person is killed; (2)
the accused killed that person without any justifying circumstance; (3) the accused had
the intention to kill, which is presumed; and (4) the killing was not attended by any of the
qualifying circumstances of murder, or by that of parricide or infanticide. 27

The petitioners’ intent to kill was clearly established by the nature and number of
wounds sustained by their victims. Evidence to prove intent to kill in crimes against
persons may consist, among other things, of the means used by the malefactors; the
conduct of the malefactors before, at the time of, or immediately after the killing of the
victim; and the nature, location and number of wounds sustained by the victim. 28 The
CA aptly observed that the ten (10) hack/stab wounds David suffered and which
eventually caused his death, and the thirteen (13) hack/stab wounds Erwin sustained,
confirmed the prosecution’s theory that the petitioners purposely and vigorously
attacked David and Erwin.29 In fact, the petitioners admitted at the pre–trial that “the
wounds inflicted on the victim Erwin Ordoñez would have caused his death were it not
for immediate medical attendance.”30

By invoking self–defense, the petitioners, in effect, admitted to the commission of the

acts for which they were charged, albeit under circumstances that, if proven, would
have exculpated them. With this admission, the burden of proof shifted to the petitioners
to show that the killing and frustrated killing of David and Erwin, respectively, were
attended by the following circumstances: (1) unlawful aggression on the part of the
victims; (2) reasonable necessity of the means employed to prevent or repel such
aggression; and (3) lack of sufficient provocation on the part of the persons resorting to
self–defense.31

Of all the burdens the petitioners carried, the most important of all is the element of
unlawful aggression. Unlawful aggression is an actual physical assault, or at least.
threat to inflict real imminent injury, upon. person.32 The element of unlawful aggression
must be proven first in order for self–defense to be successfully pleaded. There can be
no self–defense, whether complete or incomplete, unless the victim had committed
unlawful aggression against the person who resorted to self–defense.33

As the RTC and the CA did, we find the absence of the element of unlawful aggression
on the part of the victims. As the prosecution fully established, Erwin and David were
just passing by the petitioners’ compound on the night of November 8, 2000 when David
was suddenly attacked by Joey while Erwin was attacked by Rodolfo. The attack
actually took place outside, not inside, the petitioners’ compound, as evidenced by the
way the petitioners’ gate was destroyed. The manner by which the wooden gate post
was broken coincided with Erwin’s testimony that his brother David, who was then
clinging onto the gate, was dragged into the petitioners’ compound. These
circumstances, coupled with the nature and number of wounds sustained by the victims,
clearly show that the petitioners did not act in self–defense in killing David and
wounding Erwin. The petitioners were, in fact, the real aggressors.

As to the penalties and damages awarded

We affirm the penalties imposed upon the petitioners, as they are well within the ranges
provided by law, but modify the damages awarded by the CA.

In addition to the P50,000.00 civil indemnity and P50,000.00 moral damages awarded
by the CA, we award P25,000.00 to each of the victims as temperate damages, in lieu
of the actual damages they sustained by reason of the crimes. Article 2224 of the Civil
Code states that temperate or moderate damages may be recovered when the court
finds that some pecuniary loss has been suffered but its amount cannot be proved with
certainty.

Also, we impose on all the monetary awards for damages interest at the legal rate of six
percent (6%) per annum from date of finality of the decision until fully paid. 34

WHEREFORE, the petition is DENIED. The decision dated October 24, 2005 of the
Court of Appeals is hereby AFFIRMED with MODIFICATION in that the petitioners are
also ordered to pay Erwin Ordoñez and the heirs of David Ordoñez the amount of
P25,000.00 as temperate damages.

The petitioners shall pay interest at the rate of six percent (6%) per annum on the civil
indemnity, moral and temperate damages from the finality of this decision until fully
paid.

SO ORDERED.

Carpio, J., (Chairperson), Perez, Mendoza,* and Perlas–Bernabe, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 161422 December 13, 2007

FEDERICO "TOTO" NATIVIDAD, Petitioner,

vs.
MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD (MTRCB),
represented by its
Chairperson MA. CONSOLIZA T. LAGUARDIA; Spouses THELMA J. CHIONG and
DIONISIO F. CHIONG; and MARICHU S. JIMENEA, Respondents.

DECISION

VELASCO, JR., J.:

 The Case

In this Petition for Review on Certiorari under Rule 45, petitioner Federico "Toto"
Natividad seeks the reversal of the December 22, 2003 Decision1 of the Court of
Appeals (CA). The CA denied petitioner’s Special Civil Action for Certiorari and
Mandamus with application for a writ of preliminary injunction against the Movie and
Television Review and Classification Board (MTRCB) in connection with MTRCB
Administrative Case No. 25-99.

The Facts

At the center of this petition is the movie Butakal (Sugapa Sa Laman). The movie is
allegedly based on the true story of two sisters, Jacqueline and Marijoy Chiong of Cebu.
The sisters were kidnapped, raped and killed on July 16, 1997. Jacqueline’s body was
found in a hurriedly-dug grave, while Marijoy’s body was never found. The eight
accused, some scions of prominent Cebu families, have been convicted by the Cebu
City Regional Trial Court (RTC), save for one, who turned state witness. The seven
convicted were each sentenced to two counts of reclusion perpetua. On automatic
appeal to this Court, the penalties imposed by the trial court were affirmed with
modifications in a Decision dated February 3, 2004.2 The subsequent motions for
reconsideration filed by the accused were denied in this Court’s Resolution dated July
21, 2005.3

On August 25, 1999, while the appeal of the accused was pending in this Court,
Natividad, a movie producer and director, for and on behalf of the movie outfit Venus
Films, filed with the MTRCB an application for a permit to exhibit Butakal, the movie
apparently based on the Chiong rapes.

The MTRCB gave the movie an R-Strictly for Adults rating and issued its permit on
August 27, 1999. The movie was advertised in the major dailies and scheduled for
public viewing starting September 8, 1999 in several movie houses in Metro Manila and
in Cebu City.

On September 1, 1999, private respondents, the spouses Dionisio and Thelma Chiong,
and Thelma’s sister, Marichu Jimenea (Chiongs), convinced that the movie was a
depiction of the sisters’ plight, wrote MTRCB requesting the board to disapprove the
showing of the film. They objected to what they had been informed were brutal and lewd
depictions of the rape. They claimed that the misrepresentations were aggravated by
the purely commercial motive of the producers. The Chiongs also said that the case
upon which Butakal was based was still pending before the Court and the showing of
the film was sub judice.

Immediately, then MTRCB Chairperson Armida P.E. Siguion-Reyna asked Natividad to

submit Butakal to a special screening in the presence of the Chiongs. Natividad readily
agreed, and the special screening was held.
Thereafter, Siguion-Reyna informed the Chiongs that the MTRCB stood by its previous
approval of the movie and only a restraining order from the proper court would stop its
public exhibition starting September 8, 1999.

On September 6, 1999, the Chiongs filed with the RTC a petition for injunction with
damages with prayer for the issuance of a temporary restraining order (TRO) docketed
as Civil Case No. Q-99-38647 against Natividad and the MTRCB. The Chiongs alleged
that the showing of the film would inflict "grave injustice and irreparable injury to the
petitioners and the victims in Crim. Cases Nos. [CBU-]45303 and 45304." The case was
raffled to Branch 223.

The RTC ruled in favor of private respondents. It made permanent the writ of
preliminary injunction and/or TRO and ordered the MTRCB to cancel the permit "to
show Butakal on television or any theater in the Philippines and abroad, said movie
being illegal, indecently immoral and against public policy and order."

On September 7, 1999, the RTC ex-parte issued a TRO enjoining Natividad from
exhibiting the movie for 72 hours and set for summary hearing the extended duration of
the TRO. After three days, the trial court issued another order extending the life of the
TRO to its full duration of 20 days.

On September 12, 1999, Natividad filed an Omnibus Motion praying for the dismissal of
the main petition and the lifting of the TRO. Natividad cited as grounds the alleged
failure of the Chiongs to exhaust available administrative remedies, the lack of
jurisdiction of the court over the subject matter of the petition, and the failure of the
petition itself to state a cause of action.

The Chiongs filed an opposition to the omnibus motion. The MTRCB, for its part, filed a
Manifestation/Motion alleging that it merely fulfilled its mandate under Presidential
Decree No. (PD) 1986 when it issued Natividad’s permit. Eventually, in an Order dated
September 21, 1999, the RTC denied Natividad’s Omnibus Motion and the same order
set the hearing of the Chiongs’ application for preliminary injunction to September 22,
23, and 24, 1999.4

Butakal was previewed by the RTC during the hearing on September 23, 1999. After the
screening, the Chiongs asked the trial court to direct the seizure of the VHS master
copy of the movie for safekeeping by the MTRCB. This oral motion was denied outright
by the trial court.

Because the TRO would expire on September 27, 1999 without the court resolving their
urgent application for preliminary injunction, the Chiongs filed a very urgent motion to
resolve the pending incident even though they were fully aware that Natividad had not
yet concluded his presentation of evidence. The court denied the urgent motion.

In the afternoon of September 27, 1999, Natividad received a letter from the MTRCB
informing him that the Office of the President (OP) had directed the MTRCB
Chairperson to designate a Committee of Board Members to undertake a second review
and to determine if there was a basis for allegations that the film contains scenes that
were libelous or defamatory to the good name and reputation of the Chiong sisters and
surviving relatives, and if after review, the Board, in its judgment, shall find basis for the
complaint, to impose such penalties/sanctions in accordance with the provisions of PD
1986.5

The Board recalled the Permit to Exhibit and directed Natividad to submit a second
review.

Taken aback by the MTRCB’s inordinately swift recall of the permit to exhibit, even
while the matter of the preliminary injunction in Civil Case No. Q-99-38647 remained
unresolved, Natividad inquired why there was a recall and discovered that on
September 10, 1999, Thelma Chiong and her relatives met with the President and
requested another review, resulting in the recall of the permit and the directive to the
MTRCB to undertake another review. Natividad posthaste filed a supplemental motion
to dismiss Civil Case No. Q-99-38647 alleging that when the Chiongs asked the OP to
intervene despite the pendency of the court case, they committed forum shopping.
Thus, he alleged that Civil Case No. Q-99-38647 should be dismissed.

Also, in response to the MTRCB’s letter, Natividad filed a manifestation with the MTRCB
informing the board that he was not inclined to submit his film for a second review
because the decision of the first review committee was final. He added that if he did,
this might be misunderstood as submitting himself to the jurisdiction of the MTRCB on
the issues brought by the Chiongs before the OP. His refusal constrained the MTRCB
Chairperson to write Natividad to ask him to explain in writing why no sanctions should
be imposed against him. Natividad complied.

While Civil Case No. Q-99-38647 was pending resolution by the RTC, the Chiongs
subsequently filed two separate pleadings: (1) an Amended Petition where they deleted
the MTRCB as a respondent and instead impleaded new respondents, Kenjie
Watanabe, Alvin Basilio, and Willie Laconsay, and withdrew their prayer for preliminary
injunction; and (2) a petition to inhibit the judge for alleged bias in favor of Natividad.

In an Order dated October 7, 1999, the RTC dismissed Civil Case No. Q-99-38647 on
the ground of forum shopping. The RTC explained that despite knowledge of the
complaint initiated in the OP and notwithstanding the undertaking contained in the
Certificate of Non-Forum Shopping, the trial court was not fairly informed of the action
initiated before the same agency. It was only through respondent-movant’s Urgent
Omnibus Motion that the trial court was apprised of this development and this was on
the seventeenth day after the issuance of the Memorandum from the OP, contrary to
Rule 7, Section 5 of the 1997 Rules of Civil Procedure.

The Chiongs moved for reconsideration but their motion was denied.
Simultaneous with the filing of their motion for reconsideration in Civil Case No. Q-99-
38647, the Chiongs filed with the MTRCB a Complaint docketed as MTRCB
Administrative Case No. 25-99 against Natividad, Watanabe, Basilio, and Laconsay,
asking the MTRCB to prohibit the exhibition of Butakal or any portion of the film in all
forms or venues in the Philippines and abroad. The Chiongs also asked that all copies
of the movie be surrendered to the MTRCB and destroyed.6

Natividad, et al. in their Answer interposed that (1) the MTRCB had no jurisdiction to
hear and decide the controversy; (2) the complainants committed forum shopping; (3)
the earlier decision of the MTRCB granting a permit to exhibit Butakal had become final
and executory; and (4) the recall order of the permit violated their right to due process. 7

On March 20, 2000, the MTRCB denied due course to the Chiongs’ complaint because
it violated the sub judice rule. However, the MTRCB affirmed its earlier order of
September 27, 1999 for the recall of its permit since the Hearing and Adjudication
Committee the MTRCB had created had taken notice of two criminal cases, docketed
as Criminal Case Nos. CBU-45303 and 45304 both entitled People of the Philippines v.
Francisco Juan Larrañaga @ "Paco," et al. The RTC, Branch 7 tried on the merits and
decided the criminal cases, which were on appeal before the Court.

After the surrender of the master copy of Butakal, Natividad later requested that the
MTRCB release the master copy. The MTRCB refused explaining that the video tape of
Butakal had to remain with the MTRCB until and after the administrative case filed by
the Chiongs is terminated because the video tape was material evidence in the
administrative case.

Aggrieved, on May 12, 2000, Natividad filed a special civil action for certiorari and
mandamus under Rule 65 of the Rules of Court with the CA.

The petition was denied by the CA in a decision promulgated on December 22, 2003. In
denying the petition, the CA found that (1) the orders issued by the MTRCB in
Administrative Case No. 25-99 were merely interlocutory and generally may not be the
subject of a petition for certiorari; (2) no grave abuse of discretion was committed by the
MTRCB, because it merely deferred proceedings conformably with the sub judice rule;
(3) the MTRCB had primary jurisdiction, a fact already affirmed by the trial court in Civil
Case No. Q-99-38647; and (4) the MTRCB was only complying with its mandate under
PD 1986, as amended, as well as its Implementing Rules and Regulations.

According to the CA, the MTRCB orders denying Chiongs’ complaint, while
simultaneously withholding the permit to exhibit Butakal, were merely interlocutory
because the main case where the subject orders were issued, Administrative Case No.
25-99, was not resolved. Being interlocutory, said orders may not be the subject of a
special civil action for certiorari. The CA cited Emergency Loan Pawnshop Inc., et al. v.
Court of Appeals, et al.,8 and explained that the remedy of the aggrieved party is to file
an answer to the complaint and to interpose as defenses the objections raised in his
motion to dismiss, proceed to trial, and in case of an adverse decision, to elevate the
entire case by appeal.

The CA elucidated further that the rule admits of exceptions, namely: (1) when the
impugned orders were issued without or in excess of jurisdiction; (2) where there is
patent grave abuse of discretion; or (3) appeal would not prove to be a speedy and
adequate remedy as when an appeal would not relieve the defendant from the injurious
effects of the patently mistaken order maintaining the plaintiffs’ baseless action and
compelling the defendant needlessly to go through a protracted trial and clogging the
court dockets by another futile case. The CA opined that in this case, Natividad failed to
show that this case fell under any of the aforementioned exceptions.

Regarding the allegation of grave abuse of discretion on the part of the MTRCB, the CA
ruled that there was no such grave abuse when the MTRCB deferred the resolution of
Administrative Case No. 25-99, because it found that there were at that time criminal
cases involving the rape of the Chiong sisters pending in the Court, and the decision on
these cases would materially affect any resolution by the MTRCB in Administrative
Case No. 25-99.

As to the alleged lack of jurisdiction of the MTRCB to entertain Administrative Case No.
25-99, the CA said that PD 1986, as amended, categorically conferred jurisdiction on
the MTRCB to act on cases such as Administrative Case No. 25-99. The pertinent
provisions state:

SEC. 3. Powers and Functions.—The BOARD shall have the following functions,
powers and duties:

xxxx

c) To approve or disapprove, delete objectionable portions from and/or prohibit the

importation, exportation, production, copying, distribution, sale, lease, exhibition and/or
television broadcast of the motion pictures, television programs and publicity materials
subject of the preceding paragraph, which in the judgment of the BOARD applying
contemporary Filipino cultural values as standard, are objectionable for being immoral,
indecent, contrary to law and/or good customs, injurious to the prestige of the Republic
of the Philippines or its people, or with a dangerous tendency to encourage the
commission of violence [or] of a wrong crime, such as but not limited to:

xxxx

vi) Those which are libelous or defamatory to the good name and reputation of any
person, whether living or dead; and

vii) Those which may constitute contempt of court or of any quasi-judicial tribunal, or
pertain to matters which are sub-judice in nature
Unsatisfied, Natividad filed this petition before us.

The Issues

Natividad alleges the following errors committed by the CA:

I.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN HOLDING

THAT THE MOVIE "BUTAKAL (SUGAPA SA LAMAN)" IS A TRUE TO LIFE
DEPICTION OF THE CELEBRATED RAPE-SLAY CASE OF JACQUELINE AND
MARIJOY CHIONG OF CEBU CITY WHEN THERE WAS NO EVIDENCE TO
SHOW THAT IT WAS SO AS THERE WAS NO HEARING CONDUCTED BY
THE MOVIE TELEVISION REVIEW AND CLASSIFICATION BOARD IN MTRCB
ADMINISTRATIVE CASE NO. 25-99.

II.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN NOT

HOLDING THAT THE RESPONDENT MOVIE TELEVISION REVIEW AND
CLASSIFICATION BOARD ACTED WITHOUT JURISDICTION AND/OR WITH
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF
JURISDICTION IN NOT LIFTING/DISSOLVING THE RECALL ORDER EVEN
AFTER IT HAS NOT GIVEN DUE COURSE TO THE PETITION.

III.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN NOT

HOLDING THAT RESPONDENT MOVIE TELEVISION REVIEW AND
CLASSIFICATION BOARD DID NOT COMMIT GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
CONFISCATING THE VHS COPY OF THE FILM "BUTAKAL" FOR
EVIDENTIARY PURPOSES WHEN THE PETITION WAS NOT GIVEN DUE
COURSE NOT TO MENTION THAT PROPRIETARY RIGHTS OVER THE FILM
BELONGS TO PETITIONER NATIVIDAD.

The Court’s Ruling

The petition is not meritorious.

Did the CA gravely err in holding that the movie Butakal (Sugapa Sa Laman) is a true to
life depiction of the celebrated rape-slay case of Jacqueline and Marijoy Chiong of Cebu
City even without a hearing by the MTRCB to determine if it was so?

As far as this Court is concerned, the first issue raised by Natividad, essentially a factual
question, is irrelevant to the resolution of this case. The second and third issues raised
by petitioner are far more grave and certainly relevant to the resolution of this case,
concerning as it does the jurisdiction of the MTRCB and questions regarding the proper
exercise of the latter’s power.

Furthermore, settled is the rule that a party desiring to appeal by certiorari from a
judgment, final order, or resolution of the CA, Sandiganbayan, RTC, or other courts
whenever authorized by law, may file with the Court a verified petition for review on
certiorari. The petition shall raise only questions of law which must be distinctly set
forth.9

Questions of fact are not proper subjects for this Court unless there is clear and
convincing proof that the judgment of the CA is based on a misapprehension of facts; or
when the CA failed to notice and appreciate certain relevant facts of substance which if
properly considered would justify a different conclusion; and when there is grave abuse
of discretion in the appreciation of facts in the light of the evidence on record.10

In this petition, Natividad has failed to convince this Court to depart from this well-
established doctrine.

On the second issue, did the CA gravely err and abuse its discretion when it did not lift
the recall order considering that when the MTRCB did not give due course and dismiss
the Chiongs’ complaint, it had in effect resolved the issue that the film was allegedly
libelous to the Chiong sisters?

No. Quoted below is the MTRCB ruling:

WHEREAS, Petitioners have filed with this office on 25 October 1999 a complaint
against the respondents, all involved in the making of the film entitled "BUTAKAL,"
alleging among others, that the said film constitutes libel to the petitioners and to
Marijoy and Jacqueline Chiong, and praying that the respondents, jointly and severally,
and their agents and successors-in-interests, be prohibited and banned from exhibiting
and showing the said movie or any portion thereof thru any forum or venue such as
movie theaters, television programs, video programs private and public, and print
media, in the Philippines as well as abroad;

WHEREAS, a HEARING AND ADJUDICATION COMMITTEE (Committee) was created

by MTRCB Chairman Armida P.E. Siguion Reyna through Special Order No. 99-73, with
the undersigned as members, to look into the allegations contained in the said petition;

WHEREAS, the Committee has taken notice of two criminal cases docketed as Criminal
Cases Nos. CBU-45303 and 45304 both entitled "People of the Philippines versus
Francisco Juan Larrañaga @ ‘Paco’, et al., accused" which was tried on the merits and
decided by the Regional Trial Court of Cebu, Branch 7, 7th Judicial Region, said cases
now under appeal under [sic] the Supreme Court;
NOW THEREFORE, The Board, through this Committee, rules that the subject
complaint of petitioners cannot be given due course while the above-mentioned cases
are still pending, the decision of the Supreme Court on the said cases having material
bearing on the subject complaint before this Board; and affirms the Order of Recall
issued by this Board on 27 September 1999. (Emphasis supplied.)

It is clear that the MTRCB did not dismiss the Chiongs’ complaint; rather, it suspended
the proceedings because whether or not Butakal was libelous or defamatory depended
on the decision rendered by this Court in People v. Larrañaga. 11

On the third issue. Did the MTRCB commit grave abuse of discretion when it
confiscated the VHS copy of the film?

It did not. The pertinent provision of PD 1986 is Sec. 3 which states:

SEC. 3. Powers and Functions.—The BOARD shall have the following functions,
powers and duties:

xxxx

c) To approve or disapprove, delete objectionable portions from and/or prohibit the

importation, exportation, production, copying, distribution, sale, lease, exhibition and/or
television broadcast of the motion pictures, television programs and publicity materials
subject of the preceding paragraph, which in the judgment of the BOARD applying
contemporary Filipino cultural values as standard, are objectionable for being immoral,
indecent, contrary to law and/or good customs, injurious to the prestige of the Republic
of the Philippines or its people, or with a dangerous tendency to encourage the
commission of violence [or] of a wrong crime, such as but not limited to:

xxxx

vi) Those which are libelous or defamatory to the good name and reputation of any
person, whether living or dead; and

vii) Those which may constitute contempt of court or of any quasi-judicial tribunal, or
pertain to matters which are sub-judice in nature.

Furthermore, the MTRCB Rules of Procedure in the Conduct of Hearings for the
Violations of PD 1986 provides:

Rule VIII

HEARINGS

SECTION 1. Who May Conduct Hearings – Hearings of the Board may be conducted by
the Chairman, or, if the respondent or alleged offender does not admit guilt, by a
Hearing and Adjudication Committee composed of at least three (3) Board Members
designated by the Chairman, at least one of whom shall be a member of the Philippine
bar. Any hearing conducted by the Chairman or the Committee shall be deemed as a
hearing before the Board.

xxxx

SEC. 7. Preventive Seizure, Suspension, or Closure – In the interest of the public and
on finding of probable cause, the Chairman may order, pending hearing and final
disposition of the case, the preventive seizure of offending motion pictures and related
publicity materials, and/or suspension of the permit or permits involved, and/or closure
of the erring moviehouse, television network, cable TV station, or establishment. The
Chairman may also order the temporary dismantling or tearing down of public signs and
billboards that are in violation of Presidential Decree No. 1986 and its Implementing
Rules and Regulations. Temporary orders thus issued shall not exceed more than
twenty (20) days from the date of issuance.1awphi1

The above provisions make it clear that the MTRCB cannot preventively seize the
master copy more than 20 days. Thus, the MTRCB erred when it seized and retained
the master copy of Butakal for more than 20 days.

WHEREFORE, the petition is PARTIALLY GRANTED. The MTRCB is ordered to return

the master copy of Butakal to petitioner and to resolve the administrative complaint filed
by the Chiongs with dispatch. No costs.

SO ORDERED.

THIRD DIVISION

[G.R. Nos. 153714-20. August 15, 2003]

PEOPLE OF THE PHILIPPINES, Petitioner, v. MARIO K. ESPINOSA, respondent.

DECISION

PANGANIBAN, J.:

A waiver of the constitutional right against double jeopardy must be clear, categorical,
knowing and intelligent. Corollary to this rule, the alleged conditions attached to an
arraignment must be unmistakable, express, informed and enlightened. Otherwise, the
plea should be deemed to be simple and unconditional.

The Case

Before us is a Petition for Certiorari1 under Rule 65 of the Rules of Court, seeking to
nullify the April 10, 2002 Resolution2 of the Sandiganbayan (SBN) in Criminal Case
Nos. 26422-26428. The anti-graft court dismissed the criminal cases against
Respondent Mario K. Espinosa on the ground of double jeopardy as follows:

That being the case, the Court is constrained to concur with the accused that jeopardy
has set in and that he is now at peril of punishment twice for the same offense in
violation of the protection afforded by Sec. 21, Art. III of the Constitution.

WHEREFORE, these cases are DISMISSED as against accused Mario K. Espinosa

alone.3

The Antecedents

On February 4, 1998, separate cases of estafa and attempted corruption of public

officers were filed before the SBN by the Office of the Ombudsman (OMB) against (1)
Respondent Espinosa, then provincial administrator of Masbate; (2) Emma Vasquez;
and (3) Romeo Sanano. The cases were docketed as Criminal Case Nos. 24438 and
24439.

Prior to his arraignment, Espinosa filed a Motion for Reinvestigation of the cases. The
SBN Fourth Division granted the Motion in an Order4 dated March 23, 1988, and
directed the Office of the Special Prosecutor to evaluate the evidence against the
accused.

While the cases were being reevaluated, Espinosa filed with the SBN a Motion for
Leave to Travel Abroad for the period May 2-13, 1999.

On the date set for the hearing of the Motion, the SBN (Fourth Division) issued an Order
resetting the hearing to April 22, 1999. It required private respondent to be conditionally
arraigned on that date5 before it would act on his Motion to Travel.

As ordered, private respondent was arraigned, and thereafter granted his Motion to
Travel. The Order of Arraignment dated April 22, 2000, stated that upon being duly
arraigned, [he] entered a plea of Not Guilty to both Informations in Crim. Case Nos.
24438 and 24439.6 The Court also ordered the deferment of the pretrial of the cases,
pending the reinvestigation then being conducted by the Ombudsman.

On December 28, 2000, the OMB -- through the Office of the Special Prosecutor --
moved to withdraw ex parte the two cases against private respondent. The SBN granted
the Motion in a Resolution dated January 9, 2001.

Thereafter, the OMB filed in the same court seven Informations for Malversation of
Public Funds against Espinosa and several others. These Informations were docketed
as Criminal Case Nos. 24622 to 24628 and raffled to the SBN First Division.

On January 22, 2001, Espinosa filed a Motion to Quash the Informations. He argued
that double jeopardy had already attached, because (1) he had been arraigned in the
previous estafa cases; and (2) the Motion to Withdraw the two earlier ones had been
granted without his express consent.

Petitioner countered that the arraignment for the two previous cases was conditional,
because it was made solely for the purpose of accommodating private respondents
request to travel abroad while the matters were pending reinvestigation.

Ruling of the Sandiganbayan

In its assailed Resolution, the SBN First Division ruled that jeopardy had attached in the
first instance when Criminal Case Nos. 24438-24439 were dismissed upon the
prosecutions ex parte motion to withdraw the information. It noted that the dismissal had
been sought and obtained without respondents knowledge, much less express consent.

It likewise held private respondents actual arraignment to be straightforward and

unqualified. The records did not disclose any circumstance showing that the accused
knew that his arraignment was subject to certain conditions.

Hence this recourse.7

Issue

Petitioner submits the following issue for the Courts consideration:

Whether or not [the SBN] acted with grave abuse of discretion amounting to lack or x x
x excess of jurisdiction in dismissing Criminal Cases Nos. 34622 to 24628 as against
Respondent Espinosa.8

The Courts Ruling

The Petition is unmeritorious.

Preliminary Issue:

Procedural Lapses

Before tackling the main issue raised by petitioner, the Court will point out some
procedural lapses.

First, prior to submitting the instant Petition to this Court, petitioner should have filed a
motion for reconsideration before the SBN. The extraordinary remedy of certiorari will lie
only if there is no appeal or any other plain, speedy and adequate remedy in the
ordinary course of law.9cräläwvirtualibräry

Here, the plain, speedy and adequate remedy expressly provided by law10 is a motion
for reconsideration to be filed within fifteen (15) days from promulgation or notice of the
final order or judgment.11 The purpose of the motion12 is x x x to afford public
respondent an opportunity to correct any actual or fancied error attributed to it by way of
a re-examination of the legal and factual aspects of the case.

Explaining further, the Court said:

x x x. Petitioner's inaction or negligence under the circumstances is tantamount to a

deprivation of the right and opportunity of the respondent commission to cleanse itself of
an error unwittingly committed or to vindicate itself of an act unfairly imputed. An
improvident resort to certiorari cannot be used as a tool to circumvent the right of public
respondent to review and purge its decision of an oversight, if any. x x x. 13 (Italics
supplied)

Second, the proper remedy is appeal under Rule 45, not certiorari under Rule 65.
Section 7 of Presidential Decree No. 1606, as amended by Republic Act No. 8249,
provides that [d]ecisions and final orders of the Sandiganbayan shall be appealable to
the Supreme Court by [a] petition for review on certiorari raising pure questions of law in
accordance with Rule 45 of the Rules of Court. Section 1, Rule 45 of the Rules of Court,
likewise provides that a judgment or final order or resolution of the Sandiganbayan may
be appealed to the Supreme Court via a verified petition for review on certiorari.

Clearly then, the remedy of appeal was available to petitioner. For unexplained reasons,
it chose not to pursue this recourse. Neither has it cited grounds to exempt the Petition
from the stringent rule forbidding a substitution of remedies. Verily, its cavalier disregard
of procedural requirements, especially its erroneous choice of remedy, is indeed
enough reason to throw out this Petition summarily.

Main Issue:

Attachment of Legal Jeopardy

Even if we are to gloss over these procedural infirmities, the Petition should nonetheless
be dismissed for its lack of substantive merit.

Petitioner argues that the dismissal of the later Informations against private respondent
on the ground of double jeopardy had no factual or legal basis,14 because his
arraignment in the earlier cases was only conditional.

We are unconvinced.

Previous cases15 have mentioned the SBNs practice of conditionally arraigning the
accused pending the Ombudsmans reinvestigation of the case.16 This practice is not
mentioned or provided for in the regular rules of procedure.

Section 9 of PD 1606, as amended by RA 7975,17 provides:

Sec. 9. Rules of Procedure. - The Rules of Court promulgated by the Supreme Court
shall apply to all cases and proceedings filed with the Sandiganbayan. The
Sandiganbayan shall have no power to promulgate its own rules of procedure, except to
adopt internal rules governing the allotment of cases among the divisions, the rotation of
justices among them, and other matters relating to the internal operations of the court
which shall be enforced until repealed or modified by the Supreme Court."

The Revised Internal Rules of the Sandiganbayan,18 promulgated by this Court, do not
mention any conditional arraignment. Neither do the regular Rules of Court.

Arraignment is an indispensable requirement of due process. It consists of the judges or

the clerk of courts reading of the criminal complaint or information to the defendant. At
this stage, the accused is granted, for the first time, the opportunity to be officially
informed of the nature and the cause of the accusation.19 Thus, arraignment cannot be
regarded lightly or brushed aside peremptorily.

Espinosa pleaded simply and unconditionally on April 22, 1999. No unusual ceremony
punctuated his arraignment. The SBN itself found this simple process inconsistent with
its studied manner of conditionally arraigning the accused pending reinvestigation in
other cases. We quote from its assailed Resolution as follows:

Since it is the accused who wishes to travel even while his case is pending review, and
in order that the Court might not lose jurisdiction over him while he is abroad, the
accused and counsel are advised as part of the arraignment process, that the
arraignment is conditional, i.e., that arraignment is without prejudice to the results of the
reinvestigation or review; that if the prosecution should recommend the filing of new
charges, in lieu of the present charge, which would necessarily include or be included in
the present accusation, the accused would now be understood as having waived his
right against double jeopardy; and that if the prosecution sought to withdraw the
information, the arraignment would be deemed to have been of no effect. If the accused
accepts these conditions for arraignment, then he is arraigned and allowed to travel. In
other words, in this instance, the accused is clearly aware of what is going on; at the
time of his arraignment, there is an explicit waiver against the protection against double
jeopardy as a condition for his travel.20 (Italics supplied)

Under Section 11(c) of Rule 116 of the Rules of Court, the arraignment shall be
suspended for a period not exceeding 60 days when a reinvestigation or review is being
conducted at either the Department of Justice or the Office of the President. However,
we should stress that the court does not lose control of the proceedings by reason of
such review. Once it had assumed jurisdiction, it is not handcuffed by any resolution of
the reviewing prosecuting authority.21 Neither is it deprived of its jurisdiction by such
resolution.22 The principles established in Crespo v. Mogul23 still stands, as follows:

"Whether the accused had been arraigned or not and whether it was due to a
reinvestigation by the fiscal or a review by the Secretary of Justice whereby a motion to
dismiss was submitted to the Court, the Court in the exercise of its discretion may grant
the motion or deny it and require that the trial on the merits proceed for the proper
determination of the case.

xxx

"The rule therefore in this jurisdiction is that once a complaint or information is filed in
Court any disposition of the case as to its dismissal or the conviction or acquittal of the
accused rests in the sound discretion of the Court. Although the fiscal retains the
direction and control of the prosecution of criminal cases even while the case is already
in Court he cannot impose his opinion on the trial court. The Court is the best and sole
judge on what to do with the case before it. The determination of the case is within its
exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal
should be addressed to the Court which has the option to grant or deny the same. It
does not matter if this is done before or after the arraignment of the accused or that the
motion was filed after a reinvestigation or upon instructions of the Secretary of Justice
who reviewed the records of the investigation."24 (Italics supplied)

In any event, petitioner insists that private respondent has waived his right to invoke
double jeopardy in the light of his allegedly conditional arraignment.

Again, the Court is not persuaded.

The right against double jeopardy is enshrined in Section 21 of Article III of the
Constitution, which reads:

No person shall be twice put in jeopardy of punishment for the same offense. If an act is
punished by a law and an ordinance conviction or acquittal under either shall constitute
a bar to another prosecution for the same act.

This constitutionally mandated right is procedurally buttressed by Section 17 of Rule

117 of the Revised Rules of Criminal Procedure.25 To substantiate a claim for double
jeopardy, the following must be demonstrated:

x x x (1) [A] first jeopardy must have attached prior to the second; (2) the first jeopardy
must have been validly terminated; (3) the second jeopardy must be for the same
offense, or the second offense includes or is necessarily included in the offense
charged in the first information, or is an attempt to commit the same or is a frustration
thereof.

And legal jeopardy attaches only: (a) upon a valid indictment; (b) before a competent
court; (c) after arraignment; (d) [when] a valid plea [has] been entered; and (e) the case
was dismissed or otherwise terminated without the express consent of the
accused.26cräläwvirtualibräry

It has been the unwavering position of this Court that substantial rights cannot be trifled
with or cast aside on the basis of mere suppositions and conjectures. The
relinquishment of a constitutional right has to be laid out convincingly. Such waiver must
be clear, categorical, knowing and intelligent.27cräläwvirtualibräry

As can be gleaned from the Memorandum of petitioner, the alleged waiver falls short of
the above requirement:

Unfortunately, the records reveal that a lawyer for respondent Espinosa was present
when the April 19,1999 Order of the Fourth Division was issued in open court. Thus,
said lawyer must have heard that the hearing of the motion to travel was reset to April
22, 1999 so that the movant could be conditionally arraigned. 28

xxx

x x x. As stressed in the petition, the arraignment was conditional for if it was not so,
respondent Espinosa would have been deemed to have abandoned his recourse for the
reevaluation of his cases before the Office of the Ombudsman.29 (Italics supplied)

As correctly pointed out in the challenged Resolution, the dismissal of the estafa and
the corruption cases was made upon petitioners ex parte Motion for the withdrawal of
the Informations. Petitioner does not dispute the fact that private respondent was not
notified of this Motion. Neither was a hearing held thereon.

On the other hand, private respondent has amply shown that he learned of the Motion
only after the cases had been dismissed. It is clear that the dismissal, having been
secured by petitioner without the express consent of the accused, does not amount to a
waiver of the right against double jeopardy. But it does unequivocally show the fourth
requisite for the proper invocation of such right.

In a nutshell, the alleged conditions attached to an arraignment must be unmistakable,

express, informed and enlightened. They must be expressly stated in the Order
disposing of the arraignment. Otherwise, the plea should be deemed to be simple and
unconditional.

WHEREFORE, the Petition is DISMISSED.

SO ORDERED.

Puno, (Chairman), Sandoval-Gutierrez, Corona, and Carpio-Morales, JJ., concur.

THIRD DIVISION

[G.R. NO. 129098 : December 6, 2006]

AMELIA CABRERA, Petitioner, v. MANUEL LAPID, FERNANDO BALTAZAR,

REYNALDO F. CABRERA and DIONY VENTURA, Respondents.
 DECISION

TINGA, J.:

The instant Petition for Review on Certiorari seeks the reversal of the Resolution1 dated
13 May 1996 and the Order2 dated 21 March 1997, both issued by the Office of the
Ombudsman. The Resolution dismissed the complaint-affidavit filed by petitioner
against respondents and the Order denied her motion for reconsideration.

The instant petition originated from a Complaint-Affidavit3 filed in November 1995 by

petitioner Amelia M. Cabrera with the Office of the Ombudsman ("Ombudsman").
Named respondents were Manuel Lapid, Fernando Baltazar, Reynaldo F. Cabrera and
Superintendent Diony Ventura, respectively, in their capacities as Governor of
Pampanga, Mayor of Sasmuan, Pampanga, Vice-Mayor of Sasmuan, Pampanga and
Superintendent of the Philippine National Police (PNP)-Region 3, Pampanga. In her
three(3)-page affidavit, petitioner accused respondents of violating Section 3(e) of the
Anti-Graft and Corrupt Practices Act and Article 324 of the Revised Penal Code.

In her Complaint-Affidavit, petitioner stated that she entered into a lease agreement with
the Municipality of Sasmuan over a tract of land for the purpose of devoting it to
fishpond operations. According to petitioner, she had spent
approximately P5,000,000.00 for its construction before the fishpond operations
commenced in August 1995. A month later, petitioner learned from newspaper reports
of the impending demolition of her fishpond as it was purportedly illegal and blocked the
flow of the Pasak River. Thus, petitioner sent the fishpond administrator to dissuade
respondents from destroying her property.4

Despite pleas from petitioner, respondents ordered the destruction of petitioner's

fishpond. The property was demolished on 10 October 1995 by dynamite blasting.
Petitioner alleged that the demolition was purposely carried out in the presence of
media representatives and other government officials to gain media mileage. Petitioner
imputed evident bad faith on respondents Mayor Baltazar and Vice-Mayor Cabrera in
allowing the destruction of the fishpond despite their prior knowledge of the existence of
the lease agreement. She also charged respondents Governor Lapid and Senior
Superintendent Ventura with gross inexcusable negligence for ordering the destruction
of the fishpond without first verifying its legality.5

At the preliminary investigation, respondents, except Senior Superintendent Ventura,

submitted counter-affidavits, denying the accusations against them. In the counter-
affidavit jointly filed by Mayor Baltazar and Vice-Mayor Cabrera, they insisted that
contrary to petitioner's claim, the fishpond was an illegal structure because it was
erected on the seashore, at the mouth of the Pasak River, and sat on an inalienable
land. They claimed that the demolition was done by the Task Force Bilis Daloy upon the
directive of then President Fidel V. Ramos.6
In his Counter-Affidavit,7 Governor Lapid averred that the contract of lease between
petitioner and the Municipality of Sasmuan, represented by then Mayor Abelardo
Panlaqui, was executed two weeks before respondent Mayor Baltazar took his oath of
office in 1995. Governor Lapid also argued that under the law, the Department of
Agriculture (DA) is the government agency authorized to enter into licensing
agreements for fishpond operations, and as per certification by the DA Regional
Director, petitioner's fishpond operation was not covered by a fishpond lease agreement
or application. Governor Lapid also referred to the certification by the Municipal Health
Officer of Sasmuan issued before the actual demolition of the fishpond, describing it as
a nuisance per se and recommending its abatement.8

On 13 May 1996, the Ombudsman issued the assailed Resolution, dismissing

petitioner's complaint. The dismissal was based on the declaration that the fishpond
was a nuisance per se and, thus, may be abated by respondents in the exercise of the
police power of the State.9

Petitioner sought reconsideration of the Resolution, arguing that under Sec. 149 of
Republic Act (R.A.) No. 7160, otherwise known as the Local Government Code of 1991,
the exclusive authority to grant fishery privileges is vested in the municipalities.
Petitioner also questioned the certification by the Municipal Health Officer, alleging that
the same was issued before the ocular inspection of the property which took place only
on the day of the demolition. Petitioner also contended that a judicial proceeding was
necessary to determine whether the property indeed had caused the
flooding.10 Respondents filed separate oppositions to petitioner's motion for
reconsideration.11 Petitioner filed a reply to the opposition12 and respondent Governor
Lapid filed a rejoinder to the reply.13

In the Order dated 21 March 1997, the Ombudsman affirmed its 13 May 1996
Resolution. It ruled that the repealing clause of R.A. No. 7160 expressly repealed only
Sec. 2, 6 and 29 of Presidential Decree (P.D.) No. 704 so that in harmonizing the
remaining provisions of P.D. No. 704 and the provisions of R.A. No. 7160 applicable to
the grant of fishery privileges, the Bureau of Fisheries and Aquatic Resources (BFAR) is
the government agency authorized to grant fishpond license or permit in areas not
identified as municipal waters or not declared as alienable or disposable by the
Department of Environment and Natural Resources (DENR). Since it appears from
DENR records that the subject property has not been declared disposable or included in
areas devoted for fishpond development, the Ombudsman concluded that the lease
agreement entered into by petitioner was void ab initio. In view of the illegality of the
lease agreement, the Ombudsman ruled that its demolition was justified. The
Ombudsman described the demolition as a valid exercise of police power and in
accordance with the provision of Sec. 28 of P.D. No. 704 directing the removal of any
fishpen or fishpond that obstructed the free navigation of a stream or lake. It also upheld
the authority of the district health officer to determine the abatement of a nuisance
without need of judicial proceedings.14
Petitioner elevated the matter to this Court via a Petition for Review on Certiorari under
Rule 45 of the Rules of Court to assail the 13 May 1996 Resolution and 21 March 1997
Order of the Ombudsman. Petitioner subsequently filed an amended Petition for Review
on Certiorari to implead the Ombudsman as respondent, although in a Petition for
Review on Certiorari, the tribunal whose issuance is assailed need not be impleaded as
respondent.

The petition imputes the following errors on the Ombudsman:

I.

THE OFFICE OF THE OMBUDSMAN ERRED AND EXCEEDED ITS AUTHORITY IN

RULING THAT THE LEASE CONTRACT BETWEEN THE MUNICIPALITY OF
SASMUAN AND PETITIONER IS NULL AND VOID.

II.

THE OFFICE OF THE OMBUDSMAN ERRED IN RULING THAT THE DEMOLITION

OF THE FISHPOND WAS VALIDLY MADE BY VIRTUE OF THE DECLARATION BY
THE HEALTH OFFICER THAT IT WAS A NUISANCE PER SE.

III.

THE OFFICE OF THE OMBUDSMAN ERRED IN RULING THAT THE DEMOLITION IS

PART OF THE PROPER EXERCISE OF THE POLICE POWER OF THE STATE.

IV.

THE OFFICE OF THE OMBUDSMAN ERRED IN RULING THAT PETITIONER WAS

GIVEN DUE NOTICE AND HEARING BEFORE THE FISHPOND WAS BLASTED.

V.

THE OFFICE OF THE OMBUDSMAN ERRED IN RULING THAT PROBABLE CAUSE

DOES NOT EXIST TO INDICT RESPONDENTS FOR VIOLATION OF THE SUBJECT
OFFENSES.15

Clearly, this is an appeal from the questioned issuances of the Ombudsman. However,
such direct resort to this Court from a resolution or order of the Ombudsman is not
sanctioned by any rule of procedure.

Neither can petitioner avail of Sec. 2716 of R.A. No. 6770, otherwise known as The
Ombudsman Act of 1989. The provision allowed direct appeals in administrative
disciplinary cases from the Office of the Ombudsman to the Supreme Court. The right to
appeal is granted only in respect to orders or decisions of the Ombudsman in
administrative cases.17 The provision does not cover resolutions of the Ombudsman in
criminal cases. More importantly, Sec. 27 of R.A. No. 6770 insofar as it allowed a direct
appeal to this Court was declared unconstitutional in Fabian v. Hon. Desierto.18

However, an aggrieved party in criminal actions is not without any recourse. Where
grave abuse of discretion amounting to lack or excess of jurisdiction taints the findings
of the Ombudsman on the existence of probable cause, the aggrieved party may file a
petition for certiorari under Rule 65.19 The remedy from resolutions of the Ombudsman
in preliminary investigations of criminal cases is a petition for certiorari under Rule 65,
not a Petition for Review on Certiorari under Rule 45.20

But in this case, petitioner has taken the position that the Ombudsman has decided
questions of substance contrary to law and the applicable decisions of the Supreme
Court. That is a ground under a Rule 45 petition. Indeed, from a reading of the
assignment of errors, it is clear that petitioner does not impute grave abuse of discretion
to the Ombudsman in issuing the assailed Resolution and Order. Rather, she merely
questions his findings and conclusions. As stated earlier, direct appeal to the Supreme
Court via a Petition for Review on Certiorari is not sanctioned by any rule of procedure.
By availing of a wrong remedy, the petition should be dismissed outright.

Even if the Court treats the instant appeal as a petition for certiorari under Rule 65, its
dismissal is nevertheless warranted because petitioner failed to present, much more
substantiate, any grave abuse of discretion on the part of the Ombudsman.

A careful reading of the questioned Resolution reveals that the Ombudsman dismissed
petitioner's criminal complaint because respondents had validly resorted to the police
power of the State when they effected the demolition of the illegal fishpond in question
following the declaration thereof as a nuisance per se. Thus, the Ombudsman was of
the opinion that no violation of Section 3(e)21 of the Anti-Graft and Corrupt Practices Act
or of Article 32422 of the Revised Penal Code was committed by respondents. In the
words of the Ombudsman, "those who participated in the blasting of the subject
fishpond were only impelled by their desire to serve the best interest of the general
public; for the good and the highest good."23

By grave abuse of discretion is meant capricious and whimsical exercise of judgment as

is equivalent to lack of jurisdiction. Mere abuse of discretion is not enough. It must be
grave abuse of discretion as when the power is exercised in an arbitrary or despotic
manner by reason of passion or personal hostility, and must be so patent and so gross
as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty
enjoined or to act at all in contemplation of law.24

Grave abuse of discretion should be differentiated from an error in judgment. An error of

judgment is one which the court may commit in the exercise of its jurisdiction, and which
error is reversible only by an appeal. As long as the court acts within its jurisdiction, any
alleged errors committed in the exercise of its discretion will amount to nothing more
than mere errors of judgment, correctible by an appeal or a Petition for Review under
Rule 45 of the Rules of Court. An error of jurisdiction is one where the act complained of
was issued by the court without or in excess of jurisdiction and which error is correctible
only by the extraordinary writ of certiorari .25

The other errors raised by petitioner pertain to the Ombudsman's opinion on the lack of
probable cause to indict respondents. These are purported errors in judgment which
can be corrected by an appeal, although not via a direct appeal to this Court. Direct
resort to this Court may be had only through the extraordinary writ of certiorari and upon
showing that the Ombudsman committed grave abuse of discretion, which petitioner
failed to demonstrate.

Absent any grave abuse of discretion tainting it, the courts will not interfere with the
Ombudsman's supervision and control over the preliminary investigation conducted by
him.26 It is beyond the ambit of this Court to review the exercise of discretion of the
Ombudsman in prosecuting or dismissing a complaint filed before it.27 The rule is based
not only upon respect for the investigatory and prosecutory powers granted by the
Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise,
the functions of the courts will be grievously hampered by innumerable petitions
assailing the dismissal of investigatory proceedings conducted by the Office of the
Ombudsman with regard to complaints filed before it, in much the same way that the
courts would be extremely swamped if they would be compelled to review the exercise
of discretion on the part of the fiscals or prosecuting attorneys each time they decide to
file an information in court or dismiss a complaint by a private complainant. 28

WHEREFORE, the instant Petition for Review on Certiorari is DENIED. No costs.

SO ORDERED.

Quisumbing, J., Chairperson, Carpio, Carpio Morales, and Velasco, Jr., JJ.,
concur.

EN BANC

G.R. No. 199422, June 21, 2016

COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. KEPCO ILIJAN

CORPORATION, Respondent.

DECISION

PERALTA, J.:

This is a petition for Review on Certiorari under Rule 45 of the Rules of Court seeking
the reversal of the Resolutions1 dated July 27, 20112 and November 15, 20113 of the
Court of Tax Appeals (CTA) En Banc.

The facts follow.

For the first4 and second5 quarters of the calendar year 2000, respondent filed its
Quarterly value-added tax (VAT) returns with the Bureau of Internal Revenue (BIR). It
also filed the Application for Zero Rated Sales for calendar year 2000 which was duly
approved by the BIR.6chanrobleslaw

Thereafter, respondent filed with the BIR its claim for refund in the amount, of
P449,569,448.73 representing input tax incurred for the first and second quarters of the
calendar year 2000 from its importation and domestic purchases of capital goods and
services preparatory to its production and sales of electricity to the National Power
Corporation.7chanrobleslaw

Petitioner did not act upon respondent's claim for refund or issuance of tax credit
certificate for the first and second quarters of the calendar year 2000. Consequently,
respondent filed a Petition for Review8 on March 21, 2002, and an Amended Petition for
Review9 on September 12, 2003.

In her Answer,10 petitioner alleged the following Special and Affirmative Defenses: (1)
respondent is not entitled to the refund of the amounts prayed for; (2) the petition was
prematurely filed for respondent's failure to exhaust administrative remedies; (3)
respondent failed to show that the taxes paid were erroneously or illegally collected; and
(4) respondent has no cause of action.

After the issues were joined, trial on the merits ensued.

Respondent, thereafter, filed its Memorandum on September 1, 2008. For failure of

petitioner to file the required Memorandum despite notice, the CTA First Division issued
a Resolution11 dated September 12, 2008 submitting the case for decision.

On September 11, 2009, the CTA First Division rendered a Decision,12 the dispositive
portion13 of which reads as follows:ChanRoblesVirtualawlibrary

IN VIEW OF THE FOREGOING, THIS Court finds petitioner entitled to a refund in the
amount.of P443,447,184.50, representing unutilized input VAT paid on its domestic
purchases and importation of capital goods for the first and second quarters of 2000, as
computed below:ChanRoblesVirtualawlibrary

Amount of Input VAT Claim P449,569,448.73

Less: Input VAT Pertaining to Non-Capital Goods 706,328.22

Input VAT Claim Pertaining to Capital Goods Purchases P448,863,120.51

Less: Not Properly Substantiated Input VAT

Per ICPA's Findings 45,878.55

 Per this Court's Further Verification 5,370,057.46

Refundable Input VAT on Capital Goods Purchases P443,447,184.50

There being no motion for reconsideration filed by the petitioner, the abovementioned
decision became final and executory and a corresponding Entry of Judgment was
issued on October 10, 2009. Thus, on February 16, 2010, the Court issued a Writ of
Exeeution,14 the pertinent portion of which reads as follows:ChanRoblesVirtualawlibrary
You are hereby ORDERED to REFUND in favor of the petitioner KEPCO ILIJAN
CORPORATION, the amount of P443,447,184.50 representing unutilized input VAT
paid on its domestic purchases and importation of capital goods for the first and second
quarters of 2000, pursuant to the Decision of this Court, promulgated on September 11,
2009, which has become final and executory on October 10, 2009, by virtue of the Entry
of Judgment issued on said date.

The Sheriff of this Court is hereby directed to see to it that this Writ is carried out by. the
Respondent and/or his agents, and shall make the corresponding return/report thereon
within thirty (30) days after receipt of the Writ.

SO ORDERED.
Petitioner alleges that she learned only of the Decision and the subsequent issuance of
the writ of March 7, 2011 when the Office of the Deputy Commissioner for Legal and
Inspection Group received a Memorandum from the Appellate Division of the National
Office recommending the issuance of a Tax Credit Certificate in favor of the respondent
in the amount of P443,447,184.50.

Accordingly, on April 11, 2011 petitioner filed a petition for annulment of judgment with
the CTA En Banc, praying for the following reliefs: (1) that the Decision dated
September 11, 2009 of the CTA First Division in CTA Case No. 6412 be annulled and
set aside; (2) that the Entry of Judgment on October 10, 2009 and Writ of Execution on
February 16, 2010 be nullified; and (3) that the CTA First Division be directed to re-open
CIA Case No. 6412 to allow petitioner to submit her memoranda setting forth her
substantial legal defenses.

In opposition, respondent filed its Motion to Deny Due Course (To The Petition for
Annulment of Judgment), arguing, among others, that petitioner is not lawfully entitled to
the annulment of judgment on the ground that the CTA En Banc is bereft of jurisdiction
to entertain annulment of judgments on the premise that the Rules of Court, Republic
Act No. (RA No.) 9282,15 and the Revised Rules'of the. Court of Tax Appeals do not
expressly provide a remedy on annulment of judgments.

On July 27, 2011, the CTA En Banc issueda Resolution16 dismissing the petition.
Petitioner filed a motion for reconsideration, but the same was denied in a
Resolution17 dated November 15, 2011.

Hence, this petition.

Petitioner raises the following arguments to support her
petition:ChanRoblesVirtualawlibrary
I

THE COURT OF TAX APPEALS (EN BANC) HAS JURISDICTION TO TAKE

COGNIZANCE OF THE PETITION FOR ANNULMENT OF JUDGMENT.

II

THE NEGLIGENCE COMMITTED BY PETITIONER'S COUNSEL IS GROSS,

PALPABLE AND CONSTITUTES TOTAL ABANDONMENT OF PETITIONER'S CAUSE
WHICH IS TANTAMOUNT TO EXTRINSIC FRAUD.

III

THE COURT OF TAX APPEALS (FIRST DIVISION) HAS NO JURISDICTION OVER

THE ORIGINAL PETITION FILED BY RESPONDENT.

IV

PETITIONER IS NOT BARRED BY LACHES FROM ASSAILING THE JURISDICTION

OF THE COURT OF TAX APPEALS (FIRST DIVISION) OVER THE PETITION FILED
BY RESPONDENT.18chanroblesvirtuallawlibrary
Prefatorily, we first pass upon the issue of whether the CTA En Banc has jurisdiction to
take cognizance of the petition for annulment of judgment filed by petitioner.

Annulment of judgment, as provided for in Rule 47 of the Rules of Court, is based only
on the grounds of extrinsic fraud and lack of jurisdiction. It is a recourse that
presupposes the filing of a separate and original action for the purpose of annulling or
avoiding a decision in another case. Annulment is a remedy in law independent of the
case where the judgment sought to be annulled is rendered. 19 It is unlike a motion for
reconsideration, appeal or even a petition for relief from judgment, because annulment
is not a continuation or progression of the same case, as in fact the case it seeks to
annul is already final and executory. Rather, it is an extraordinary remedy that is
equitable in character and is permitted only in exceptional cases. 20chanrobleslaw

Annulment of judgment involves the exercise of original jurisdiction, as expressly

conferred on the Court of Appeals by Batas Pambansa Bilang (BP Blg.) 129, Section
9(2). It also implies power by a superior court over a subordinate one, as provided for in
Rule 47 of the Rules of Court, wherein the appellate court may annul a decision of the
regional trial court, or the latter court may annul a decision of the municipal or
metropolitan trial court.

But the law and the rules are silent when it comes to a situation similar to the case at
bar, in which a court, in this case the Court of Tax Appeals, is called upon to annul its
own judgment. More specifically, in the case at bar, the CTA sitting en banc is being
asked to annul a decision of one of its divisions. However, the laws creating the CTA
and expanding its jurisdiction (RA Nos. 1125 and 9282) and the court's own rules of
procedure (the Revised Rules of the CTA) do not provide for such a scenario.

It is the same situation among other collegial courts. To illustrate, the Supreme Court or
the Court of Appeals may sit and acjjudicate cases in divisions consisting of only a
number of members, and such adjudication is already regarded as the decision of the
Court itself.21 It is provided for in the Constitution, Article VIII, Section 4(1) and BP Blg.
129, Section 4, respectively. The divisions are not considered separate and distinct
courts but are divisions of one and the same court; there is no hierarchy of courts within
the Supreme Court and the Court of Appeals, for they each remain as one court
notwithstanding that they also work in divisions.22 The Supreme Court sitting en banc is
not an appellate court vis-a-vis its divisions, and it exercises no appellate jurisdiction
over the latter.23 As for the Court of Appeals en banc, it sits as such only for the purpose
of exercising administrative, ceremonial, or other non-
adjudicator/functions.24chanrobleslaw

Thus, it appears contrary to these features that a collegial court, sitting en banc, may be
called upon to annul a decision of one of its divisions which had become final and
executory, for it is tantamount to allowing a court to annul its own judgment and
acknowledging that a hierarchy exists within such court. In the process, it also betrays
the principle that judgments must, at some point, attain finality. A court that can revisit
its own final judgments leaves the door open to possible endless reversals or
modifications which is anathema to a stable legal system.

Thus, the Revised Rules of the CTA and even the Rules of Court which apply
suppletorily thereto provide for no instance in which the en banc may reverse, annul or
void a final decision of a division. Verily, the Revised Rules of the CTA provide for no
instance of an annulment of judgment at all. On the other hand, the Rules of Court,
through Rule 47, provides, with certain conditions, for annulment of judgment done by a
superior court, like the Court of Appeals, against the final judgment, decision or ruling of
an inferior court, which is the Regional Trial Court, based on the grounds of extrinsic'
fraud and lack of jurisdiction. The Regional Trial Court, in turn, also is empowered to,
upon a similar action, annul a judgment or ruling of the Metropolitan or Municipal Trial
Courts within its territorial jurisdiction. But, again, the said Rules are silent as to whether
a collegial court sitting en banc may annul a final judgment of its own division.

As earlier explained, the silence of the Rules may be attributed to the need to preserve
the principles that there can be no hierarchy within a collegial court between its divisions
and the en banc, and that a court's judgment, once final, is immutable.

A direct petition for annulment of a judgment of the CTA to the Supreme Court,
meanwhile, is likewise unavailing, for the same reason that there is no identical remedy
with the High Court to annul a final and executory judgment of the Court of Appeals. RA
No. 9282, Section I puts the CTA on the same level as the Court of Appeals, so that .if
the latter's final judgments may not be annulled before the Supreme Court, then the
CTA's own decisions similarly may not be so annulled. And more importantly, it has
been previously discussed that annulment of judgment is an original action, yet, it is not
among the cases enumerated in the Constitution's Article VIII, Section 5 over which the
Supreme Court exercises original jurisdiction. Annulment of judgment also often
requires an adjudication of facts, a task that the Court loathes to perform, as it is not a
trier of facts.25cralawredchanrobleslaw

Nevertheless, there will be extraordinary cases, when the interest of justice highly
demands it, where final judgments of the Court of Appeals, the CTA or any other inferior
court may still be vacated or subjected to the Supreme Court's modification, reversal,
annulment or declaration as void. But it will be accomplished not through the same
species of original action or petition for annulment as that found in Rule 47 of the Rules
of Court, but through any of the actions over which the Supreme Court has original
jurisdiction as specified in the Constitution, like 65 of the Rules of Court.

Hence, the next query is: Did the CTA En Banc correctly deny the petition for annulment
of judgment filed by petitioner?

As earlier discussed, the petition designated as one for annulment of judgment

(following Rule 47) was legally and procedurally infirm and, thus, was soundly
dismissed by the CTA En Banc on such ground. Also, the CTA could not have treated
the petition as an appeal or a continuation of the case before the CTA First Division
because the latter's decision had become final and executory and, thus, no longer
subject to an appeal.

Instead, what remained as a remedy for the petitioner was to file a petition
for certiorari under Rule 65, which could have been filed as an original action before this
Court and not before the CTA En Banc. Certiorari is available when there is no appeal
or any other plain, speedy and adequate remedy in the ordinary course of law, such as
in the case at bar. Since the petition below invoked the gross and palpable negligence
of petitioner's counsel which is allegedly tantamount to its being deprived of due
process and its day in court as party-litigant26 and, as it also invokes lack of jurisdiction
of the CTA First Division to entertain the petition filed by private respondent since the
same allegedly fails to comply with the reglementary periods for judicial rernedies
involving administrative claims for refund of excess unutilized input VAT under the
National Internal Revenue Code (NIRC),27 which periods it claims to be jurisdictional,
then the proper remedy that petitioner should have availed of was indeed a petition
for certiorari under Rule 65, an original or independent action premised on the public
respondent having acted without or in excess of jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction. However, since a certiorari petition
is not a continuation of the appellate process borne out of the original case but is a
separate action focused on actions that are in excess or wanting of jurisdiction,28 then it
cannot be filed in the same tribunal whose actions are being assailed but is instead
cognizable by a higher tribunal which, in the case of the CTA, is this Court. 29 In the case
involving petitioner, the petition could have been filed directly with this Court, even
without any need to file a motion for reconsideration with the CTA division or En Banc,
as the case appears to fall under one of the recognized exceptions to the rule requiring
such a motion as a prerequisite to filing such petition.30chanrobleslaw

The office of a certiorari petition is detailed in the Rules of Court,

thus:ChanRoblesVirtualawlibrary
Section 1. Petition for certiorari. — When any tribunal, board or officer exercising judicial
or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or
with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is
no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified petition in the proper court, alleging the
facts with certainty and praying that judgment be rendered annulling or modifying the
proceedings of such tribunal, board or officer, and granting such incidental reliefs as law
and justice may require.

The petition shall be accompanied by a certified true copy of the judgment, order or
resolution subject thereof, copies of all pleadings and documents relevant and pertinent
thereto, and a sworn certification of non-forum shopping as provided in the third
paragraph of section 3, Rule 46.

(1a)
The writ of certiorari is an "extraordinary remedy" that is justified in the "absence of an
appeal or any plain» speedy and adequate remedy in the ordinary course of law." 31 It
may be given due course as long as petitioners allege that they had no appeal or any
other efficacious remedy against the appellate court's decision.32chanrobleslaw

Direct resort to this Court via a certiorari petition on the same grounds as in this case
has jurisprudential precedents. In one, We held that when the appellate court's decision
is void for lack of due process, the filing of a petition for certiorari with this court without
a motion for reconsideration is justified.33 This Court also has held that a petition
for certiorari under Rule 65 of the Rules of Court is available when the proceedings in
question amount to depriving the petitioner his day in court.34 It is true that certiorari is
not a substitute for appeal, but exempt from this rule is a case when the trial court's
decision or resolution was issued without jurisdiction or with grave abuse of
discretion.35When a fraudulent scheme prevents a party from having his day in
court or from presenting his case, the fraud is one that affects and goes into the
jurisdiction of the court.36 A question as to lack of jurisdiction of the respondent
tribunal or agency is properly the office of a petition for certiorari.

In any event, petitioner's failure to avail of this remedy and mistaken filing of the wrong
action are fatal to its case and renders and leaves the CTA First Division's decision as
indeed final and executory. By the time the instant petition for review was filed by
petitioner with this Court on December 9, 2011, more than sixty (60) days have passed
since petitioner's alleged discovery (on March 7, 2011) of its loss in the case as brought
about by the alleged negligence or fraud of its counsel.
Thus, the current discussion serves no further purpose other than as merely a future
guide to the bench and the bar when confronted with a similar situation.

Although in select cases, this Court has asseverated that "it is always within its power to
suspend its own rules or to except a particular case from its operation, whenever the
purposes of justice require it" and that the Rules of Court were conceived and
promulgated to set forth guidelines in the dispensation of justice but not to bind and
chain the hand that dispenses it, for otherwise, courts will be mere slaves to or robots of
technical rules, shorn of judicial discretion.37 We have also equally stressed that strict
compliance with the rules of procedure is essential to the administration of
justice.38chanrobleslaw

In this case, even if there was allegedly a deliberate effort from petitioner's counsel to
refuse to participate, despite notice, in the conduct of the case after the filing of the
Answer right up to the issuance of the Writ of Execution against petitioner, 38 equally
apparent is the failure of petitioner and/or petitioner's responsible subordinates to
supervise the said counsel as well as the conduct and progress of the case. Not only
was there an apparent negligence of counsel,39 which binds the client, there likewise
appears to have been lapses on the part of the client - the petitioner and the petitioner's
responsible subordinates - themselves. Equally oft-repeated is the rule that service
made upon the present counsel of record at his given address is service to the
client.40 Thus, it is harder to justify a relaxation of the rules when the litigant itself suffers
from inexcusable neglect. It is an oft-repeated pronouncement that clients should take
the initiative of periodically checking the progress of their cases, so that they could take
timely steps to protect their interest.41 Failing such, clients are left with more recourse
against the consequence of their and their counsel's omissions.

To prevent similar disadvantageous incidents against the government in the future, the
BIR is DIRECTED to ADOPT mechanisms, procedures, or measures that can
effectively monitor the progress of cases being handled by its counsels. Likewise, the
Ombudsman is DIRECTED to CONDUCT an in-depth investigation to determine who
were responsible for the apparent mishandling of the present case that resulted in the
loss of almost half-a-billion pesos, which the government could have used to finance its
much needed infrastructure, livelihood projects, and other equally important projects.

WHEREFORE, premises considered, the petition for review is hereby DENIED. The
assailed Resolutions dated July 27, 2011 and November 15, 2011 of the Court of Tax
Appeals En Banc are AFFIRMED.

SO ORDERED.chanRoblesvirtualLawlibrary