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SECOND DIVISION [G.R. No. 85318. June 3, 1991.] COMMART (PHILS.), INC., JESUS, CORAZON, ALBERTO, AND BERNARD all surnamed MAGLUTAC, Petitioners, v. SECURITIES & EXCHANGE COMMISSION and ALICE MAGLUTAC,Respondents. Monsod, Tamargo & Associates, for Petitioners. Panganiban, Benitez, Barinaga & Bautista Law Offices for Private Respondent. SYLLABUS 1. COMMERCIAL LAW; CORPORATION LAW; MINORITY STOCKHOLDERS DERIVATIVE SUIT; CASE AT BAR. The complaint in SEC Case No. 2673, particularly paragraphs 2 to 9 under First Cause of Action, readily shows that it avers the diversion of corporate income into the private bank accounts of petitioner Jesus T. Maglutac and his wife. Likewise, the principal relief prayed for in the complaint is the recovery of a sum of money in favor of the corporation. This being the case, the complaint is definitely a derivative suit. Consequently, the SEC correctly held that the case was a minority stockholders derivative suit and correctly sustained the hearing panels denial insofar as Alice Maglutac was concerned of the motions to dismiss it. 2. ID.; ID.; ID.; REMEDY WHERE MANAGEMENT THROUGH FRAUD, NEGLECT OF DUTY OF OTHER CAUSE FAILS TO ASSERT THE CORPORATIONS RIGHTS. A derivative suit has been the principal defense of the minority shareholder against abuses by the majority. It is a remedy designed by equity for those situations where the management, through fraud, neglect of duty, or other cause, declines to take the proper and necessary steps to assert the corporations rights. Indeed, to grant to Commart the right of withdrawing or dismissing the suit, at the instance of majority stockholders and directors who themselves are the persons alleged to have committed breaches of trust against the interest of the corporation, would be to emasculate the right of minority stockholders to seek redress for the corporation. To consider the Notice of Dismissal filed by Commart as quashing the complaint filed by Alice Maglutac in favor of the corporation would be to defeat the very nature and function of a derivative suit and render the right to institute the action illusory. 3. ID.; ID.; ID.; CONFLICT OF INTEREST; MAY BE THRESHED OUT IN THE HEARING OF DERIVATIVE SUIT ON THE MERITS. SEC ruled that jurisdiction cannot be made to depend upon the pleas and defenses set up by a defendant in a motion to dismiss or answer, otherwise jurisdiction should become dependent almost entirely upon the defendant (citing Cardenas v. Camus infra). But it left the door open to a further consideration of the issue by stating that complainants ownership of majority stocks of a rival corporation could not at this stage of the proceedings, defeat complainants

claims. In other words, no real prejudice has been inflicted upon petitioners right to be heard on this matter raised by them, since the same can still be looked into during the hearing of a derivative suit on the merits. There was, therefore, neither error nor grave abuse of discretion in the decision of the Securities & Exchange Commission not to dismiss the case but to remand it instead to the Hearing Panel for further proceedings. DECISION PARAS, J.: Petitioners, in the instant petition for review on certiorari, seek the reversal of the en banc Order of the respondent Securities & Exchange Commission dated September 12, 1988 denying the petition for certiorari (SEC-EB No. 115-117) filed by the petitioners herein and ordering that the original complaint (SEC Case No. 2673) be remanded to the Securities Investigation and Clearing Department for further proceeding, for having been rendered in grave abuse of discretion amounting to lack of or in excess of jurisdiction and in contravention of existing laws and jurisprudence. Commart (Phils.), Inc., (Commart for short) is a corporation organized by two brothers, Jesus and Mariano Maglutac, to engage in the brokerage business for the importation of fertilizers and other products/commodities. Jesus T. Maglutac (Jesus for short) ran the company as president, chairman of the board, and chairman of the executive committee, while Mariano T. Maglutac (Mariano for short) served as executive vice-president and vice-chairman of the executive committee until April 1984. Sometime in June 1984, the two brothers agreed to go their separate ways, with Mariano being persuaded to sell to Jesus his shareholdings in Commart amounting to 25% of the outstanding capital stock. As part of the deal, a "Cooperative Agreement" was signed, between Commart (represented by Jesus) and Mariano, in which, among others, Commart ceded to Mariano or to an "acceptable entity" he may create, a portion of its business, with a pledge of mutual cooperation for a certain period so as to enable Mariano to get his own corporation off the ground, so to speak. Marianos wife, Alice M. Maglutac (private respondent herein) who has been for years a stockholder and director of Commart, did not dispose of her shareholdings, and thus continued as such even after the sale of Marianos equity. As broker and indentor, Commarts principal income came from commissions paid to it in U.S. dollars by foreign suppliers of fertilizers and other commodities imported by Planters Products, Inc. and other local importers. Shortly after the sale of his equity in Commart to Jesus, Mariano allegedly discovered

that for several years, Jesus and his wife Corazon (who was herself a director) had been siphoning and diverting to their private bank accounts in the United States and in Hongkong gargantuan amounts sliced off from commissions due Commart from some foreign suppliers. Consequently, on August 22, 1989, spouses Mariano and Alice Maglutac filed a complaint (SEC Case No. 2673) with the Securities & Exchange Commission (SEC for short) against Jesus T. Maglutac, Victor Cipriano, Clemente Ramos, Carolina de los Reyes, Corazon Maglutac, Alberto Maglutac and Bernardo Maglutac (Jesus as Chairman) and the rest as members of the Board of Directors of Commart). In their Complaint, Mariano and Alice Maglutac alleged, among others, that "Jesus T. Maglutac, by means of secret arrangements with foreign suppliers, embodied in and evidenced by, correspondences and other documents discovered just recently, has been diverting into his private bank accounts and converting to his own personal benefit and advantage substantial portions of the commission income of the corporation, to the prejudice of the corporation, its stockholders and its creditors. (Petition, Annex B, p. 2; Rollo, p. 20) Thus, complainants prayed, among others, that judgment be rendered as follows "(a) Ordering respondents Jesus T. Maglutac, Corazon Maglutac, and Victor Cipriano to account for and to turn over or deliver to the Corporation the sum of US$2,539,918.97, or its equivalent in Philippine currency, with legal interest thereon from the respective dates of misappropriation or, at the very least, from date of filing of this suit, together with such other and further sums as may be proved to have likewise been misappropriated by them; "(b) Ordering all the respondents, as members of the Board of Directors, to take such remedial steps as would protect the corporation from further depredation of its funds and property; "(c) Declaring rescinded or annulled the disposition of complainant Mariano T. Maglutacs shares of stock to respondent Jesus T. Maglutac and ordering the restoration to the former of all his executive positions with all the rights and privileges thereunto appertaining; or, in the alternative, ordering that said complainant be paid the equivalent of one-fourth of the actual market value of COMMARTs present assets including goodwill, taking into consideration also the total sums misappropriated by respondents Jesus T. Maglutac, Corazon Maglutac, and Victor Cipriano which rightfully belonged to COMMART; and "(d) Ordering respondents to pay complainants attorneys fees equivalent to twenty (20%) per cent of the total amounts awarded and recovered, plus such further sums as may be proved to have been incurred as and by way of litigation expenses." (pp. 24-25, Rollo). In response to the aforementioned Complaint, two Motions to Dismiss were filed. The records reveal that:jgc:chanrobles.com.ph "(a) On October 17, 1984, Albert and Bernard Maglutac moved to dismiss on the ground

that Mariano Maglutac has no capacity to sue and the complaint states no cause of action against them. "(b) On October 20, 1984, Jesus & Corazon Maglutac likewise moved to dismiss on the ground that respondent Commission does not have jurisdiction over the nature of the suit."cralaw virtua1aw library These motions were opposed by complainants Alice and Mariano Maglutac. While said incidents were pending, complainants filed an Amended Complaint whereby Commart was impleaded as party complainant and praying that Commart be placed under receivership and the properties of Jesus & Corazon Maglutac and Victor Cipriano be attached. It is alleged in the Amended Complaint that complainant Commart is the corporation in whose behalf and for whose benefit this derivative suit is brought; that complainant Alice M. Maglutac is a minority stockholder in good standing of Commart while her husband complainant Mariano T. Maglutac was, likewise, until June 25, 1984 or thereabouts, a stockholder of Commart. Motions to dismiss said Amended Complaint were also filed by present petitioners and were also duly opposed by complainants Mariano and his wife.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph On May 10, 1985 Commart filed a Manifestation/Notice of Dismissal, manifesting that "it withdraws and dismisses the action taken in its behalf by complainants Mariano T. Maglutac and Alice M. Maglutac against all respondents." (Petition, Annex E, p. 3; Rollo, pp. 42-44). This was opposed by complainants on the ground, among other doctrines, that in a derivative suit the corporation is not allowed to be an active participant and has no control over the suit against the real defendants; that the suing shareholder has the right of control. On May 27, 1985, the Hearing Panel issued an Order denying all the motions to dismiss as well as the so called manifestation/notice of dismissal on the finding inter alia that "Respondents maintain that the present action is basically one for annulment/rescission of sale with alternative prayer for reinstatement of employment status; that the action is not a derivative suit considering that the nature of the action is one for annulment and the fact that complainant Mariano T. Maglutac being a non-stockholder is not qualified to institute a derivative suit; that the action does not in any way make mention of an actionable wrong against respondents Albert and Bernard Maglutac, Clemente Ramos and Carolina de los Reyes. "By way of opposition, complainants alleged that the instant action should be characterized as a minority stockholders derivative suit; that complainant Alice Maglutac is not merely a nominal party but a real party in interest; that Mariano T. Maglutacs rights as a stockholder have been injured through the machinations and maneuvering of respondent Jesus Maglutac; that the prayer for rescission or annulment of contract is

merely the logical consequence of the exercise of jurisdiction by this Commission. "Respondents contention that the Commission has no jurisdiction over the subject matter or the nature of the action is devoid of merit. It is a cardinal principle in legal procedure that what determines the subject matter or the nature of the action are the facts alleged in the complaint as constituting the cause of action. A perusal of the complaint, as well as, the amended complaint would show that the action is one for "mismanagement", for the complainants alleged, inter alia, that . . . respondent Jesus T. Maglutac, by means of secret arrangements with foreign suppliers embodied in, and evidenced by, correspondences and other documents discovered just recently, has been diverting into his private bank accounts and converting to his own personal benefit and advantage substantial portions of the commission income of the corporation, to the prejudice of the corporation, its stockholders and its creditors and enumerated immediately thereafter the alleged specific acts of mismanagement. Viewed therefrom, the Commission has jurisdiction." (pp. 127-128, Rollo). On June 18, 1985 Commart filed a motion for reconsideration and on August 29, 1985, Jesus and Corazon Maglutac also filed a similar motion to have the Order of May 27, 1985 reconsidered and set aside. These motions were duly opposed by Mariano and Alice Maglutac.chanrobles law library : red Acting on the Motion for Reconsideration, the Hearing Panel issued on November 12, 1985, an Order modifying its previous order "by dismissing this case insofar as Mariano T. Maglutac is concerned" but affirming the said order "in all other respects." (Annex F to Petition, pp. 46, 49, Rollo) Not satisfied with such modification present petitioners as respondents in SEC Case No. 2673 went to the SEC en banc on a petition for certiorari, prohibition and mandamus with prayer for preliminary injunction. They contend (a) - that the Hearing Panel acted with grave abuse of discretion in not dismissing the case for failure of Alice Maglutac to exhaust intra-corporate remedies, and (b) that grave abuse was likewise committed in not dismissing the case on the ground that the complaint did not show clearly that Alice Maglutac was a stockholder at the time the questioned transaction occurred. On September 12, 1988, the Commission en banc issued an Order denying the aforesaid petition and remanding the case to the Securities Investigation and Clearing Department for further proceedings. It ruled (a) that exhaustion of intra-corporate remedy before filing suit "may be dispensed with where it is clear that it is unavailable or futile" as was the case here. (p. 2, Order of Sept. 12, 1988, Annex A to Petition) citing Everett v. Asia Banking Corp., 49 Phil. 512, and Republic Bank v. Cuaderno, 19 SCRA 671, and (b) that the mere allegation in the complaint that complainant is still a stockholder of Commart "is sufficient to vest jurisdiction to this Commission" but complainant must prove at the time of reception of evidence that she was also a stockholder at the time the acts complained of occurred. (Id., p. 3). "Although complainant Alice Maglutac failed to exhaust an intra corporate remedy before filing this case, the said condition precedent may be dispensed with where it is clear that

it is unavailable or futile. Thus it was held that:chanrob1es virtual 1aw library Where the board of directors in a corporation is under the complete control of the principal defendants in the case and it is obvious that a demand upon the board of directors to institute an action and prosecute the same effectively would be useless, the action may be brought by one or more of the stockholders without such demand (Everett v. Asia Banking Corp., 49 Phil. 512; Republic Bank v. Cuaderno, Et Al., No. L22399, March 30, 1967). A stockholder can file a derivative suit provided there is an allegation in the complaint that she is such at the time the acts complained of occurred, and at the time the suit is brought (Hawes v. Oakland, 14 Otto [104 U.S.], 450, 456; S.C. 5972, 13 Fletcher 345, cited in Alvendia, The Law of Private Corporations in the Philippines, First Ed., p. 361). The requirement that said facts be pleaded is merely procedural although the necessity of the existence of these facts in order to give rise to the right of action is substantive (Pascual v. Del Saz Orozco, 19 Phil. 97). And equity considerations warrant the liberal interpretation of the rules of procedure to the end that technicalities should not stand in the way of equitable relief (Vol. I, Francisco, Civil Procedure, 2nd ed., p. 157, 1973 ed.) Mere allegation therefore that complainant is still a stockholder of Commart is sufficient to vest jurisdiction to this Commission. Complainant must however prove at the time of reception of evidence that she was also a stockholder at the time the acts complained of occurred." (pp. 10-11, Memorandum by public respondent) Hence, this petition. The petitioners invoke two grounds for reversal of the Order under review thereby raising these two issues, to wit:chanrob1es virtual 1aw library 1. Did the Securities and Exchange Commission err and/or commit "grave abuse of discretion" in denying the petition for certiorari and remanding the case for further proceedings despite the so-called "notice of dismissal" filed by Commart? 2. Did the Securities and Exchange Commission err and/or commit "grave abuse of discretion" in its handling of the "conflict of interest issue?" (Petition, p. 6; Rollo, p. 81). We find the petition devoid of merit. The complaint in SEC Case No. 2673, particularly paragraphs 2 to 9 under First Cause of Action, readily shows that it avers the diversion of corporate income into the private bank accounts of petitioner Jesus T. Maglutac and his wife. Likewise, the principal relief prayed for in the complaint is the recovery of a sum of money in favor of the corporation. This being the case, the complaint is definitely a derivative suit. Consequently, the SEC correctly held that the case was a minority stockholders derivative suit and correctly sustained the hearing panels denial insofar as Alice Maglutac was concerned of the motions to dismiss it. A derivative suit has been the principal defense of the minority shareholder against

abuses by the majority. It is a remedy designed by equity for those situations where the management, through fraud, neglect of duty, or other cause, declines to take the proper and necessary steps to assert the corporations rights. Indeed, to grant to Commart the light of withdrawing or dismissing the suit, at the instance of majority stockholders and directors who themselves are the persons alleged to have committed breaches of trust against the interest of the corporation, would be to emasculate the right of minority stockholders to seek redress for the corporation. To consider the Notice of Dismissal filed by Commart as quashing the complaint filed by Alice Maglutac in favor of the corporation would be to defeat the very nature and function of a derivative suit and render the right to institute the action illusory. In any case, the suit is for the benefit of Commart itself, for a judgment in favor of the complainants will necessarily mean recovery by the corporation of the US$2.5 million alleged to have been diverted from its coffers to the private bank accounts of its top managers and directors. Thus, the prayer in the Amended Complaint is for judgment ordering respondents Jesus and Corazon Maglutac, as well as Victor Cipriano, "to account for and to turn over or deliver to the Corporation" the aforesaid sum, with legal interest, and "ordering all the respondents, as members of the Board of Directors to take such remedial steps as would protect the corporation from further depredation of the funds and property." (pars. [a] & [b], Annex 2, Comment). On the conflict of interest issue, petitioners allege that private respondent Alice Maglutac "is a majority stockholder of M.M. International Sales, a business rival/competitor of Commart and holds only less than one percent (1%) of the entire shareholdings of Commart." According to petitioners, this being the case it is easier to believe that this so called derivative suit was filed because it is to the best interest of the company where she has a bigger and substantial interest, which in this case is M.M. International Sales, Inc.chanrobles virtual lawlibrary In disposing of this contention respondent SEC ruled that jurisdiction cannot be made to depend upon the pleas and defenses set up by a defendant in a motion to dismiss or answer, otherwise jurisdiction should become dependent almost entirely upon the defendant (citing Cardenas v. Camus, infra.) But it left the door open to a further consideration of the issue by stating that complainants ownership of majority stocks of a rival corporation could not at this stage of the proceedings, defeat complainants claims:jgc:chanrobles.com.ph "Jurisdiction of the court cannot be made to depend upon the pleas or defenses pleaded by the defendant in his motion to dismiss or answer, for were we to be governed by such rule, the question of jurisdiction would depend almost entirely upon the defendant (Cardenas v. Camus, 5 SCRA 639). Respondents assertion in their motion to dismiss of complainants ownership of the majority stocks of a rival corporation, could not at this stage of the proceedings, defeat complainants claim." (pp. 83-84, Rollo) In other words, no real prejudice has been inflicted upon petitioners right to be heard on this matter raised by them, since the same can still be looked into during the hearing of a derivative suit on the merits. There was, therefore, neither error nor grave abuse of

discretion in the decision of the Securities & Exchange Commission not to dismiss the case but to remand it instead to the Hearing Panel for further proceedings. WHEREFORE, for lack of merit, this Petition is DISMISSED. Costs against petitioners. SO ORDERED. Melencio-Herrera, Padilla and Regalado, JJ., concur. Sarmiento, J., is on leave.

FIRST DIVISION [G.R. No. 98023. October 17, 1991.] MULTINATIONAL VILLAGE HOMEOWNERS ASSOCIATION, INC., v. COURT OF APPEALS and MULTINATIONAL REALTY and DEVELOPMENT CORPORATION, Respondents. Benjamin V. Aritao for Petitioner. Tabaquero, Albano & Associates for Private Respondent. SYLLABUS 1. REMEDIAL LAW; CIVIL PROCEDURE; JURISDICTION; DETERMINED BY THE ALLEGATIONS IN THE COMPLAINT. A study of Section 1 of P.D. 957 shows that the contention of the Association is untenable. It disregards the fact that the Corporation has directly asserted a claim of ownership over the subject property, which is why it filed its complaint not with the HLURB but with the regional trial court. The mere contention by the defendant that the road is subject to the exclusive use of the Village will not remove the case from the jurisdiction of the trial court and transfer it to the administrative agency. It is elementary that jurisdiction is determined by the allegations in the complaint, not the allegations in the complaint, not allegations in the answer. As we have held often enough Jurisdiction over the subject-matter is determined upon the allegations made in the complaint, irrespective of whether the plaintiff is entitled or not entitled to recover upon the claim asserted therein a matter resolved only after and as a result of the trial. Neither can the jurisdiction of the court be made to depend upon the defenses made by the defendant in his answer or motion to dismiss. If such were the rule, the question of jurisdiction would depend almost entirely upon the defendant. (Magay v. Estiandan, 69 SCRA 456) 2. ID.; ID.; MOTION TO DISMISS; LITIS PENDENTIA; REQUISITES. The requisites of litis pendentia are the following: a. Identity of parties, or at least such as representing the same interests in both actions. b. Identity of rights asserted and relief prayed for, the relief being founded on the same facts. c. The identity in the two cases should be such that the judgment that may be rendered in one would, regardless of which party is successful, amount to res adjudicata in the other. (Olayvar v. Olayvar, 98 Phil. 52) 3. ID.; ID.; ID.; ID.; IDENTITY OF SUBJECT MATTER; NOT PRESENT IN CASE AT BAR. It must be noted that there is no clear identity of subject-matter in the administrative and civil cases. The HLURB now under appeal referred only to "the road lots and the sites for parks, playgrounds and recreational uses that (were) still vacant for preparation and/or levelling," without definitely specifying if it included the disputed road. No less importantly, it cannot be said that the causes of action in the two cases are identical.

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The administrative case is an action filed by the Association for the specific performance by the Corporation of its legal obligations whereas the civil case is an action for the enforcement of a claimed property right of the Corporation against the Association. The wrongful act of the Association alleged in the civil action commenced in 1989 could not have been litigated in the earlier administrative action, which was filed against the Corporation in 1987. 4. ID.; ID.; FORUM SHOPPING; NOT PRESENT IN CASE AT BAR. As we held in Villanueva v. Adre 172 SCRA 876: There is forum-shopping whenever, as a result of an adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal or certiorari) in another, and the principle applies not only with respect to suits filed in the courts while an administrative proceedings is pending, in order to defeat administrative processes and in anticipation of an unfavorable administrative ruling and a favorable court ruling. It is noted that the private respondent found the decree in the administrative case acceptable and has not seen fit to ask for its modification or reversal. The Association has not shown that the Corporation apprehends an adverse opinion in the appeal now before the Office of the President and seeks at this time "to defeat administrative processes" with "a favorable court ruling." In fact, the action commenced by the Corporation in the regional trial court was precipitated by the refusal of the Association to allow the use of the road in question by the complainant. The Corporation would not have filed its complaint at all had it not been denied access to the said road. DECISION CRUZ, J.: The subject of this controversy is a stretch of road connecting the Multinational Village in Paraaque, Metro Manila, with the Ninoy Aquino Avenue. The use of this road is disputed between the Multinational Village Homeowners Association, Inc., the herein petitioner, and private respondent Multinational Realty and Development Corporation. The issue arose when the Corporation filed a complaint on March 15, 1989, against the Association and the G-Man Security Agency in the Regional Trial Court of Makati for "Enforcement of Rights of Property Ownership, Injunction with Temporary Restraining Order and Damages." The Corporation alleged that, as owner, it had allowed the Association to use the road and set up thereon a guardhouse manned by the Agency, but the defendants were now preventing the plaintiff from using the road for transporting construction materials needed to develop its other lots adjacent to the Village. The plaintiff prayed that it be placed in peaceful possession of the said road with full exercise and enforcement of the attributes and rights of ownership plus damages, attorneys fees and costs. On April 4, 1989, Judge Job B. Madayag, after hearing, granted the writs of preliminary

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prohibitory and mandatory injunctions prohibiting the defendants from preventing the plaintiff from using the road and ordering them to remove the guardhouse and transfer it inside the Village. The defendants filed their answer on April 13, 1989, and on July 20, 1989, a motion to dismiss on the grounds of lack of jurisdiction and litis pendentia. This motion was denied on October 3, 1989. The Association went to the Court of Appeals on certiorari with a prayer for preliminary injunction, which was also denied in a decision dated January 29, 1991. 1 The Association then came to this Court to question that decision.cralawnad Specifically, the petitioner alleges that the complaint of the Corporation comes under the jurisdiction of the Housing and Land Use Regulatory Board under PD 957, as amended; that there is a pending administrative case between the parties before the said agency that barred the filing of the civil case; and that the civil case is a form of forumshopping. The private respondent has submitted its comment, and the Court is now ready to decide. We deal first with the question of jurisdiction. The position of the petitioner is that the subject-matter of Civil Case No. 89-3446 comes under the jurisdiction of the HLURB conformably to PD 957, providing as follows:chanrob1es virtual 1aw library SECTION 1. In the exercise of its function to regulate the real estate trade and business and in addition to its powers provided for in Presidential Decree No. 957, the National Housing Authority shall have exclusive jurisdiction to hear and decide cases of the following nature:chanrob1es virtual 1aw library A. Unsound real estate business practices. B. Claims involving refund and any other claims filed by subdivision, lot or condominium unit buyer against the project owner, developer, dealer, broker or salesman; and C. Cases involving specific performance of contractual and statutory obligations filed by buyers of subdivision lot or condominium unit against the owner, developer, dealer, broker or salesman. Parenthetically, exclusive jurisdiction over these cases was originally vested in the National Housing Authority but was transferred by EO 648 dated February 7, 1981, to the Human Settlements Regulatory Commission, which was renamed Housing and Land Use Regulatory Board by EO 90 on December 17, 1986. A study of the above-quoted section shows that the contention of the Association is untenable. It disregards the fact that the Corporation has directly asserted a claim of ownership over the subject property, which is why it filed its complaint not with the HLURB but with the regional trial court. The mere contention by the defendant that the road is subject to the exclusive use of this Village will not remove the case from the jurisdiction of the trial court and transfer it to the administrative agency. It is

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elementary that jurisdiction is determined by the allegations in the complaint, not the allegations in the answer. As we have held often enough Jurisdiction over the subject-matter is determined upon the allegations made in the complaint, irrespective of whether the plaintiff is entitled or not entitled to recover upon the claim asserted therein a matter resolved only after and as a result of the trial. Neither can the jurisdiction of the court be made to depend upon the defenses made by the defendant in his answer or motion to dismiss. If such were the rule, the question of jurisdiction would depend almost entirely upon the defendant. 2 Significantly, the Association has admitted in its answer to the complaint of the Corporation that the latter is the owner of the disputed road. The Association insists, however, that the said road forms part of the Village and is reserved by agreement with the Corporation for the exclusive use of the residents. True or not, that argument may be as it has been asserted as a defense to resist the demands of the Corporation. But such a submission surely cannot have the effect of transferring the controversy to the HLURB as the complaint is not among the cases subject to its exclusive jurisdiction under Section 1 of P.D. 957 as amended. The matter is clearly resoluble by the courts of justice under the provisions of the Civil Code. Invocation by the petitioner of Solid Homes, Inc. v. Payawal 3 does not advance its cause. That case involved a complaint for the delivery of title to a subdivision lot and clearly came under the exclusive jurisdiction of the HLURB pursuant to the abovequoted Section 1 of PD 957.chanroblesvirtualawlibrary The administrative case referred to by the petitioner is the complaint it filed with the HLURB against the private respondent on May 28, 1987, for the latters alleged failure to provide the facilities, improvements and constructions in the Village as promised in its brochures and advertisements. The decision of the Board was apparently satisfactory to the Corporation, which moved for its immediate implementation, but was opposed by the Association, which moved for its reconsideration. Reconsideration having been denied, the Association filed a second motion for reconsideration, which was also denied. The Association then appealed to the Office of the President, where the case is still pending. 4 The submission that the civil case is barred by the pending appeal of the administrative decision to the Office of the President is unacceptable. The requisites of litis pendentia are the following:chanrob1es virtual 1aw library a. Identity of parties, or at least such as representing the same interests in both actions. b. Identity of rights asserted and relief prayed for, the relief being founded on the same facts. c. The identity in the two cases should be such that the judgment that may be rendered in one would, regardless of which party is successful, amount to res adjudicatain the other. 5

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It must be noted in the first place that there is no clear identity of subject-matter in the administrative and civil cases. The HLURB decision now under appeal referred only to "the road lots and the sites for parks, playgrounds and recreational uses that (were) still, vacant for preparation and/or levelling," 6 without definitely specifying if it included the disputed road. No less importantly, it cannot be said that the causes of action in the two cases are identical. The administrative case is an action filed by the Association for the specific performance by the Corporation of its legal obligations whereas the civil case is an action for the enforcement of a claimed property right of the Corporation against the Association. The wrongful act of the Association alleged in the civil action commenced in 1989 could not have been litigated in the earlier administrative action, which was filed against the Corporation in 1987. Finally, the charge of forum-shopping must also be rejected, in light of the considerations above discussed. As we held in Villanueva v. Adre: 7 There is forum-shopping whenever, as result of an adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal or certiorari) in another, and the principle applies not only with respect to suits filed in the courts while an administrative proceeding is pending, in order to defeat administrative processes and in anticipation of an unfavorable administrative ruling and a favorable court ruling. It is noted that the private respondent found the decree in the administrative case acceptable and has not seen fit to ask for its modification or reversal. The Association has not shown that the Corporation apprehends an adverse opinion in the appeal now before the Office of the President and seeks at this time "to defeat administrative processes" with "a favorable court ruling." In fact, the action commenced by the Corporation in the regional trial court was precipitated by the refusal of the Association to allow the use of the road in question by the complainant. The Corporation would not have filed its complaint at all had it not been denied access to the said road. We are satisfied that the complaint filed by the Corporation against the Association comes under the jurisdiction of the Regional Trial Court of Makati and is not barred by the earlier administrative case filed by the Association against the Corporation before the HLURB. The two actions can stand and proceed separately and each may be decided either by the judicial tribunal or the administrative agency in the exercise of their respective jurisdictions. WHEREFORE, the petition is DENIED, with costs against the petitioner. It is so ordered.chanrobles virtual lawlibrary Narvasa, Grio-Aquino and Medialdea, JJ., concur. Endnotes:

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1. Rollo, p. 94. 2. Magay v. Estiandan, 69 SCRA 456. 3. 177 SCRA 72. 4. Rollo, p. 104. 5. Olayvar v. Olayvar, 98 Phil. 52. 6. Rollo, p. 62. 7. 172 SCRA 876.

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THIRD DIVISION [G.R. NO. 136433 : December 6, 2006] ANTONIO B. BALTAZAR, Petitioner, v. HONORABLE OMBUDSMAN , EULOGIO M. MARIANO, JOSE D. JIMENEZ, JR., TORIBIO E. ILAO, JR. and ERNESTO R. SALENGA, Respondents. DECISION VELASCO, JR., J.: The Case Ascribing grave abuse of discretion to respondent Ombudsman, this Petition for Review on Certiorari,1 under Rule 45 pursuant to Section 27 of RA 6770,2 seeks to reverse and set aside the November 26, 1997 Order3 of the Office of the Special Prosecutor (OSP) in OMB-1-94-3425 duly approved by then Ombudsman Aniano Desierto on August 21, 1998, which recommended the dismissal of the Information4 in Criminal Case No. 23661 filed before the Sandiganbayan against respondents Pampanga Provincial Adjudicator Toribio E. Ilao, Jr., Chief Legal Officer Eulogio M. Mariano and Legal Officer Jose D. Jimenez, Jr. (both of the DAR Legal Division in San Fernando, Pampanga), and Ernesto R. Salenga. The petition likewise seeks to set aside the October 30, 1998 Memorandum5 of the OSP duly approved by the Ombudsman on November 27, 1998 which denied petitioner's Motion for Reconsideration.6 Previously, the filing of the Information against said respondents was authorized by the May 10, 1996 Resolution7 and October 3, 1996 Order8 of the Ombudsman which found probable cause that they granted unwarranted benefits, advantage, and preference to respondent Salenga in violation of Section 3 (e) of RA 3019.9 The Facts Paciencia Regala owns a seven (7)-hectare fishpond located at Sasmuan, Pampanga. Her Attorney-in-Fact Faustino R. Mercado leased the fishpond for PhP 230,000.00 to Eduardo Lapid for a three (3)-year period, that is, from August 7, 1990 to August 7, 1993.10 Lessee Eduardo Lapid in turn sub-leased the fishpond to Rafael Lopez for PhP 50,000.00 during the last seven (7) months of the original lease, that is, from January 10, 1993 to August 7, 1993.11 Respondent Ernesto Salenga was hired by Eduardo Lapid as fishpond watchman (bante-encargado). In the sub-lease, Rafael Lopez rehired respondent Salenga. Meanwhile, on March 11, 1993, respondent Salenga, through a certain Francis Lagman, sent his January 28, 1993 demand letter12 to Rafael Lopez and Lourdes Lapid for unpaid salaries and non-payment of the 10% share in the harvest.

16

On June 5, 1993, sub-lessee Rafael Lopez wrote a letter to respondent Salenga informing the latter that for the last two (2) months of the sub-lease, he had given the rights over the fishpond to Mario Palad and Ambit Perez for PhP 20,000.00.13 This prompted respondent Salenga to file a Complaint14before the Provincial Agrarian Reform Adjudication Board (PARAB), Region III, San Fernando, Pampanga docketed as DARAB Case No. 552-P 93 entitled Ernesto R. Salenga v. Rafael L. Lopez and Lourdes L. Lapid for Maintenance of Peaceful Possession, Collection of Sum of Money and Supervision of Harvest. The Complaint was signed by respondent Jose D. Jimenez, Jr., Legal Officer of the Department of Agrarian Reform (DAR) Region III Office in San Fernando, Pampanga, as counsel for respondent Salenga; whereas respondent Eulogio M. Mariano was the Chief Legal Officer of DAR Region III. The case was assigned to respondent Toribio E. Ilao, Jr., Provincial Adjudicator of DARAB, Pampanga. On May 10, 1993, respondent Salenga amended his complaint.15 The amendments included a prayer for the issuance of a temporary restraining order (TRO) and preliminary injunction. However, before the prayer for the issuance of a TRO could be acted upon, on June 16, 1993, respondent Salenga filed a Motion to Maintain Status Quo and to Issue Restraining Order16 which was set for hearing on June 22, 1993. In the hearing, however, only respondent Salenga with his counsel appeared despite notice to the other parties. Consequently, the ex-parte presentation of respondent Salenga's evidence in support of the prayer for the issuance of a restraining order was allowed, since the motion was unopposed, and on July 21, 1993, respondent Ilao, Jr. issued a TRO.17 Thereafter, respondent Salenga asked for supervision of the harvest, which the board sheriff did. Accordingly, defendants Lopez and Lapid received their respective shares while respondent Salenga was given his share under protest. In the subsequent hearing for the issuance of a preliminary injunction, again, only respondent Salenga appeared and presented his evidence for the issuance of the writ. Pending resolution of the case, Faustino Mercado, as Attorney-in-Fact of the fishpond owner Paciencia Regala, filed a motion to intervene which was granted by respondent Ilao, Jr. through the November 15, 1993 Order. After the trial, respondent Ilao, Jr. rendered a Decision on May 29, 1995 dismissing the Complaint for lack of merit; but losing plaintiff, respondent Salenga, appealed the decision before the DARAB Appellate Board. Complaint Before the Ombudsman On November 24, 1994, pending resolution of the agrarian case, the instant case was instituted by petitioner Antonio Baltazar, an alleged nephew of Faustino Mercado, through a Complaint-Affidavit18against private respondents before the Office of the Ombudsman which was docketed as OMB-1-94-3425 entitled Antonio B. Baltazar v. Eulogio Mariano, Jose Jimenez, Jr., Toribio Ilao, Jr. and Ernesto Salenga for violation of RA 3019. Petitioner charged private respondents of conspiracy through the issuance of the TRO in allowing respondent Salenga to retain possession of the fishpond, operate it, harvest the produce, and keep the sales under the safekeeping of other private

17

respondents. Moreover, petitioner maintains that respondent Ilao, Jr. had no jurisdiction to hear and act on DARAB Case No. 552-P 93 filed by respondent Salenga as there was no tenancy relation between respondent Salenga and Rafael L. Lopez, and thus, the complaint was dismissible on its face. Through the December 14, 1994 Order,19 the Ombudsman required private respondents to file their counter-affidavits, affidavits of their witnesses, and other controverting evidence. While the other respondents submitted their counter-affidavits, respondent Ilao, Jr. instead filed his February 9, 1995 motion to dismiss, February 21, 1995 Reply, and March 24, 1995 Rejoinder. Ombudsman's Determination of Probable Cause On May 10, 1996, the Ombudsman issued a Resolution20 finding cause to bring respondents to court, denying the motion to dismiss of respondent Ilao, Jr., and recommending the filing of an Information for violation of Section 3 (e) of RA 3019. Subsequently, respondent Ilao, Jr. filed his September 16, 1996 Motion for Reconsideration and/or Re-investigation21 which was denied through the October 3, 1996 Order.22 Consequently, the March 17, 1997 Information23 was filed against all the private respondents before the Sandiganbayan which was docketed as Criminal Case No. 23661. Before the graft court, respondent Ilao, Jr. filed his May 19, 1997 Motion for Reconsideration and/or Re-investigation which was granted through the August 29, 1997 Order.24 On September 8, 1997, respondent Ilao, Jr. subsequently filed his CounterAffidavit25 with attachments while petitioner did not file any reply-affidavit despite notice to him. The OSP of the Ombudsman conducted the re-investigation; and the result of the re-investigation was embodied in the assailed November 26, 1997 Order26 which recommended the dismissal of the complaint in OMB-1-94-3425 against all private respondents. Upon review, the Ombudsman approved the OSP's recommendation on August 21, 1998. Petitioner's Motion for Reconsideration27 was likewise denied by the OSP through the October 30, 1998 Memorandum28 which was approved by the Ombudsman on November 27, 1998. Consequently, the trial prosecutor moved orally before the Sandiganbayan for the dismissal of Criminal Case No. 23661 which was granted through the December 11, 1998 Order.29 Thus, the instant petition is before us. The Issues Petitioner raises two assignments of errors, to wit: THE HONORABLE OMBUDSMAN ERRED IN GIVING DUE COURSE A MISPLACED COUNTER-AFFIDAVIT FILED AFTER THE TERMINATION OF THE PRELIMINARY

18

INVESTIGATION AND/OR THE CASE WAS ALREADY FILED BEFORE THE SANDIGANBAYAN. ASSUMING OTHERWISE, THE HONORABLE OMBUDSMAN LIKEWISE ERRED IN REVERSING HIS OWN RESOLUTION WHERE IT WAS RESOLVED THAT ACCUSED AS PROVINCIAL AGRARIAN ADJUDICATOR HAS NO JURISDICTION OVER A COMPLAINT WHERE THERE EXIST [sic] NO TENANCY RELATIONSHIP CONSIDERING [sic] COMPLAINANT IS NOT A TENANT BUT A "BANTE-ENCARGADO" OR WATCHMANOVERSEER HIRED FOR A SALARY OF P3,000.00 PER MONTH AS ALLEGED IN HIS OWN COMPLAINT.30 Before delving into the errors raised by petitioner, we first address the preliminary procedural issue of the authority and locus standi of petitioner to pursue the instant petition. Preliminary Issue: Legal Standing Locus standi is defined as "a right of appearance in a court of justice x x x on a given question."31 In private suits, standing is governed by the "real-parties-in interest" rule found in Section 2, Rule 3 of the 1997 Rules of Civil Procedure which provides that "every action must be prosecuted or defended in the name of the real party in interest." Accordingly, the "real-party-in interest" is "the party who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit."32 Succinctly put, the plaintiffs' standing is based on their own right to the relief sought. The records show that petitioner is a non-lawyer appearing for himself and conducting litigation in person. Petitioner instituted the instant case before the Ombudsman in his own name. In so far as the Complaint-Affidavit filed before the Office of the Ombudsman is concerned, there is no question on his authority and legal standing. Indeed, the Office of the Ombudsman is mandated to "investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient (emphasis supplied)."33 The Ombudsman can act on anonymous complaints and motu proprio inquire into alleged improper official acts or omissions from whatever source, e.g., a newspaper.34 Thus, any complainant may be entertained by the Ombudsman for the latter to initiate an inquiry and investigation for alleged irregularities. However, filing the petition in person before this Court is another matter. The Rules allow a non-lawyer to conduct litigation in person and appear for oneself only when he is a party to a legal controversy. Section 34 of Rule 138 pertinently provides, thus: SEC. 34. By whom litigation conducted. - In the court of a justice of the peace a party may conduct his litigation in person, with the aid of an agent or friend appointed by him for that purpose, or with the aid of an attorney. In any other court, a party may conduct his litigation personally or by aid of an attorney, and his appearance must be either personal or by a duly authorized member of the bar (emphases supplied).

19

Petitioner has no legal standing Is petitioner a party or a real party in interest to have the locus standi to pursue the instant petition? We answer in the negative. While petitioner may be the complainant in OMB-1-94-3425, he is not a real party in interest. Section 2, Rule 3 of the 1997 Rules of Civil Procedure stipulates, thus: SEC. 2. Parties in interest. - A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or these Rules, every action must be prosecuted or defended in the name of the real party in interest. The same concept is applied in criminal and administrative cases. In the case at bar which involves a criminal proceeding stemming from a civil (agrarian) case, it is clear that petitioner is not a real party in interest. Except being the complainant, the records show that petitioner is a stranger to the agrarian case. It must be recalled that the undisputed owner of the fishpond is Paciencia Regala, who intervened in DARAB Case No. 552-P 93 through her Attorney-in-Fact Faustino Mercado in order to protect her interest. The motion for intervention filed by Faustino Mercado, as agent of Paciencia Regala, was granted by respondent Provincial Adjudicator Ilao, Jr. through the November 15, 1993 Order in DARAB Case No. 552-P 93. Agency cannot be further delegated Petitioner asserts that he is duly authorized by Faustino Mercado to institute the suit and presented a Special Power of Attorney35 (SPA) from Faustino Mercado. However, such SPA is unavailing for petitioner. For one, petitioner's principal, Faustino Mercado, is an agent himself and as such cannot further delegate his agency to another. Otherwise put, an agent cannot delegate to another the same agency. The legal maxim potestas delegata non delegare potest; a power once delegated cannot be re-delegated, while applied primarily in political law to the exercise of legislative power, is a principle of agency.36 For another, a re-delegation of the agency would be detrimental to the principal as the second agent has no privity of contract with the former. In the instant case, petitioner has no privity of contract with Paciencia Regala, owner of the fishpond and principal of Faustino Mercado. Moreover, while the Civil Code under Article 189237 allows the agent to appoint a substitute, such is not the situation in the instant case. The SPA clearly delegates the agency to petitioner to pursue the case and not merely as a substitute. Besides, it is clear in the aforecited Article that what is allowed is a substitute and not a delegation of the agency. Clearly, petitioner is neither a real party in interest with regard to the agrarian case, nor is he a real party in interest in the criminal proceedings conducted by the Ombudsman

20

as elevated to the Sandiganbayan. He is not a party who will be benefited or injured by the results of both cases. Petitioner: a stranger and not an injured private complainant Petitioner only surfaced in November 1994 as complainant before the Ombudsman. Aside from that, not being an agent of the parties in the agrarian case, he has no locus standi to pursue this petition. He cannot be likened to an injured private complainant in a criminal complaint who has direct interest in the outcome of the criminal case. More so, we note that the petition is not pursued as a public suit with petitioner asserting a "public right" in assailing an allegedly illegal official action, and doing so as a representative of the general public. He is pursuing the instant case as an agent of an ineffective agency. Petitioner has not shown entitlement to judicial protection Even if we consider the instant petition as a public suit, where we may consider petitioner suing as a "stranger," or in the category of a "citizen," or "taxpayer," still petitioner has not adequately shown that he is entitled to seek judicial protection. In other words, petitioner has not made out a sufficient interest in the vindication of the public order and the securing of relief as a "citizen" or "taxpayer"; more so when there is no showing that he was injured by the dismissal of the criminal complaint before the Sandiganbayan. Based on the foregoing discussion, petitioner indubitably does not have locus standi to pursue this action and the instant petition must be forthwith dismissed on that score. Even granting arguendo that he has locus standi, nonetheless, petitioner fails to show grave abuse of discretion of respondent Ombudsman to warrant a reversal of the assailed November 26, 1997 Order and the October 30, 1998 Memorandum. First Issue: Submission of Counter-Affidavit The Sandiganbayan, not the Ombudsman, ordered re-investigation On the substantive aspect, in the first assignment of error, petitioner imputes grave abuse of discretion on public respondent Ombudsman for allowing respondent Ilao, Jr. to submit his Counter-Affidavit when the preliminary investigation was already concluded and an Information filed with the Sandiganbayan which assumed jurisdiction over the criminal case. This contention is utterly erroneous. The facts clearly show that it was not the Ombudsman through the OSP who allowed respondent Ilao, Jr. to submit his Counter-Affidavit. It was the Sandiganbayan who granted the prayed for re-investigation and ordered the OSP to conduct the reinvestigation through its August 29, 1997 Order, as follows:

21

Considering the manifestation of Prosecutor Cicero Jurado, Jr. that accused Toribio E. Ilao, Jr. was not able to file his counter-affidavit in the preliminary investigation, there appears to be some basis for granting the motion of said accused for reinvestigation. WHEREFORE, accused Toribio E. Ilao, Jr. may file his counter-affidavit, with documentary evidence attached, if any, with the Office of the Special Prosecutor within then (10) days from today. The prosecution is ordered to conduct a reinvestigation within a period of thirty (30) days.38 (Emphases supplied.) As it is, public respondent Ombudsman through the OSP did not exercise any discretion in allowing respondent Ilao, Jr. to submit his Counter-Affidavit. The OSP simply followed the graft court's directive to conduct the re-investigation after the Counter-Affidavit of respondent Ilao, Jr. was filed. Indeed, petitioner did not contest nor question the August 29, 1997 Order of the graft court. Moreover, petitioner did not file any reply-affidavit in the re-investigation despite notice. Re-investigation upon sound discretion of graft court Furthermore, neither can we fault the graft court in granting the prayed for reinvestigation as it can readily be seen from the antecedent facts that respondent Ilao, Jr. was not given the opportunity to file his Counter-Affidavit. Respondent Ilao, Jr. filed a motion to dismiss with the Ombudsman but such was not resolved before the Resolution finding cause to bring respondents to trial was issued. In fact, respondent Ilao, Jr.'s motion to dismiss was resolved only through the May 10, 1996 Resolution which recommended the filing of an Information. Respondent Ilao, Jr.'s Motion for Reconsideration and/or Re-investigation was denied and the Information was filed with the graft court. Verily, courts are given wide latitude to accord the accused ample opportunity to present controverting evidence even before trial as demanded by due process. Thus, we held in Villaflor v. Vivar that "[a] component part of due process in criminal justice, preliminary investigation is a statutory and substantive right accorded to the accused before trial. To deny their claim to a preliminary investigation would be to deprive them of the full measure of their right to due process."39 Second Issue: Agrarian Dispute Anent the second assignment of error, petitioner contends that DARAB Case No. 552-P 93 is not an agrarian dispute and therefore outside the jurisdiction of the DARAB. He maintains that respondent Salenga is not an agricultural tenant but a mere watchman of the fishpond owned by Paciencia Regala. Moreover, petitioner further argues that Rafael Lopez and Lourdes Lapid, the respondents in the DARAB case, are not the owners of the fishpond. Nature of the case determined by allegations in the complaint

22

This argument is likewise bereft of merit. Indeed, as aptly pointed out by respondents and as borne out by the antecedent facts, respondent Ilao, Jr. could not have acted otherwise. It is a settled rule that jurisdiction over the subject matter is determined by the allegations of the complaint.40 The nature of an action is determined by the material averments in the complaint and the character of the relief sought,41 not by the defenses asserted in the answer or motion to dismiss.42 Given that respondent Salenga's complaint and its attachment clearly spells out the jurisdictional allegations that he is an agricultural tenant in possession of the fishpond and is about to be ejected from it, clearly, respondent Ilao, Jr. could not be faulted in assuming jurisdiction as said allegations characterize an agricultural dispute. Besides, whatever defense asserted in an answer or motion to dismiss is not to be considered in resolving the issue on jurisdiction as it cannot be made dependent upon the allegations of the defendant. Issuance of TRO upon the sound discretion of hearing officer As regards the issuance of the TRO, considering the proper assumption of jurisdiction by respondent Ilao, Jr., it can be readily culled from the antecedent facts that his issuance of the TRO was a proper exercise of discretion. Firstly, the averments with evidence as to the existence of the need for the issuance of the restraining order were manifest in respondent Salenga's Motion to Maintain Status Quo and to Issue Restraining Order,43 the attached Police Investigation Report,44 and MedicalCertificate.45 Secondly, only respondent Salenga attended the June 22, 1993 hearing despite notice to parties. Hence, Salenga's motion was not only unopposed but his evidence adduced exparte also adequately supported the issuance of the restraining order. Premises considered, respondent Ilao, Jr. has correctly assumed jurisdiction and properly exercised his discretion in issuing the TRO as respondent Ilao, Jr. aptly maintained that giving due course to the complaint and issuing the TRO do not reflect the final determination of the merits of the case. Indeed, after hearing the case, respondent Ilao, Jr. rendered a Decision on May 29, 1995 dismissing DARAB Case No. 552-P 93 for lack of merit. Court will not review prosecutor's determination of probable cause Finally, we will not delve into the merits of the Ombudsman's reversal of its initial finding of probable cause or cause to bring respondents to trial. Firstly, petitioner has not shown that the Ombudsman committed grave abuse of discretion in rendering such reversal. Secondly, it is clear from the records that the initial finding embodied in the May 10, 1996 Resolution was arrived at before the filing of respondent Ilao, Jr.'s CounterAffidavit. Thirdly, it is the responsibility of the public prosecutor, in this case the Ombudsman, to uphold the law, to prosecute the guilty, and to protect the innocent. Lastly, the function of determining the existence of probable cause is proper for the Ombudsman in this case and we will not tread on the realm of this executive function to examine and assess evidence supplied by the parties, which is supposed to be exercised at the start of criminal proceedings. InPerez v. Hagonoy Rural Bank, Inc .,46 as cited in Longos Rural Waterworks and Sanitation Association, Inc. v. Hon. Desierto,47 we had

23

occasion to rule that we cannot pass upon the sufficiency or insufficiency of evidence to determine the existence of probable cause.48 WHEREFORE, the instant petition is DENIED for lack of merit, and the November 26, 1997 Order and the October 30, 1998 Memorandum of the Office of the Special Prosecutor in Criminal Case No. 23661 (OMB-1-94-3425) are hereby AFFIRMED IN TOTO, with costs against petitioner. SO ORDERED. Quisumbing, J., Chairperson, Carpio, Carpio Morales, and Tinga, JJ., concur.

Endnotes:

1 2

Rollo, pp. 7-24.

An Act Providing for the Functional and Structural Organization of the Office of the Ombudsman and for Other Purposes.
3

Rollo, pp. 59-64. Prepared by Special Prosecution Officer II Cicero D. Jurado, Jr., recommended by Deputy Special Prosecutor Robert E. Kallos, concurred in by the Special Prosecutor Leonardo P. Tamayo, and approved by Ombudsman Aniano A. Desierto on August 21, 1998.
4 5

Id. at 47-48.

Id. at 71-76. Prepared by Special Prosecution Officer I Lolita S. Rodas, recommended by Deputy Special Prosecutor Robert E. Kallos, concurred in by the Special Prosecutor Leonardo P. Tamayo, and approved by Ombudsman Aniano A. Desierto on November 27, 1998.
6 7 8 9

Id. at 65-67. Id. at 36-43. Id. at 44-46.

Anti-Graft and Corrupt Practices Act was approved on August 17, 1960. Section 3 (e) of this Act provides: SEC. 3. Corrupt practices of public officers. - x x x

24

(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30

Acknowledgement Receipt dated April 2, 1991, rollo, p. 28. Acknowledgement Receipt dated January 10, 1993, id. at 29. Id. at 33. Id. at 209. Id. at 30-32. Id. at 200-203. Id. at 204-206. Id. at 34-35. Id. at 25-27. Id. at 147. Supra note 7. Rollo, pp. 148-164. Supra note 8. Supra note 4. Rollo, p. 211. Id. at 49-58. Supra note 3. Supra note 6. Supra note 5. Rollo, pp. 118-119. Id. at 12.

25
31 32 33 34 35 36

H. Black, et al., Black's Law Dictionary 941 (6th ed., 1991). Salonga v. Warner Barnes & Co., G.R. No. L-2246, January 31, 1951, 88 Phil. 125. RA 6770, supra note 2, at Sec. 15 (1). Id. at Sec. 26. Dated September 2, 1998, rollo, pp. 69-70.

See People v. Vera, G.R. No. 45685, November 16, 1937, 65 Phil. 56. The origin of the legal maxim, its development and application, was sufficiently discussed.
37

Art. 1892. The agent may appoint a substitute if the principal has not prohibited him from doing so; but he shall be responsible for the acts of the substitute: (1) When he was not given the power to appoint one; (2) When he was given such power, but without designating the person, and the person appointed was notoriously incompetent or insolvent. All acts of the substitute appointed against the prohibition of the principal shall be void.
38 39 40

Supra note 24. G.R. No. 134744, January 16, 2001, 349 SCRA 194, 201.

Sta. Clara Homeowners' Association v. Gaston, G.R. No. 141961, January 23, 2002, 374 SCRA 396, 409.
41

Sarne v. Maquiling, G.R. No. 138839, May 9, 2002, 382 SCRA 85, 92; Alemar's (Sibal & Sons), Inc. v. CA, G.R. No. 94996, January 26, 2001, 350 SCRA 333, 339;Saura v. Saura, Jr., G.R. No. 136159, September 1, 1999, 313 SCRA 465, 472; Salva v. CA, G.R. No. 132250, March 11, 1999, 304 SCRA 632, 652; Unilongo v. CA, G.R. No. 123910, April 5, 1999, 305 SCRA 561, 569; and Spouses Abrin v. Campos, G.R. No. 52740, November 12, 1991, 203 SCRA 420, 423.
42

Gochan v. Young, G.R. No. 131889, March 12, 2001, 354 SCRA 207, 211 & 216;Saura v. Saura, Jr., supra note 41; and Spouses Abrin v. Campos, supra note 41.
43 44 45 46

Supra note 16. Rollo, p. 207. Id. at 208. G.R. No. 126210, March 9, 2000, 327 SCRA 588, 604.

26
47 48

G.R. No. 135496, July 30, 2002, 385 SCRA 392, 397-398.

See also Roberts v. Court of Appeals, G.R. No. 113930, March 5, 1996, 254 SCRA 307. The Supreme Court refrained from passing over the propriety of finding probable cause against petitioners as this function is proper to the public prosecutor. Moreover, as to the question whether the public prosecutor has discharged this executive function correctly, the trial court may not be compelled to pass upon such query as there is no provision of law authorizing an aggrieved party to petition for such determination.