petition for review under rule45

7/23/2019 Petition for Review Under Rule45

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REPUBLIC

OF

THE

PHILIPPINES

SIIPREME

COURT

MANILA

PEOPLE

OF

THE

PHILIPPINES,

Petitioner,

-

versus

-

G.R.

No.

220685

(CA-G.R.

SP

No.

128625;

Court of

APPeals,

Former

Fourth

Division

-

Division

of

Five)

ERNESTO

L.

DELOS

SANTOS,

x_____--

1"-:l'l31ll;

The

PEOPLE,

through

private complainant

University

Manila

and

with

the

conformity/ratification

of

the

office

the

Solicitor

General,

by

counsel,

respectfully

states:

PREFATORY

settled

is

the

rule

that

"x

x

x

in

an

action for

certiorari,

the

primordial

task

of

the

[appellate]

lcfourt

is

to

ascertain

whei:ther

the

lower

court

xxx

acted

with

grave

abuse

of

discretion

amounting

to

excess

or

lack

of

jurisdiction

in the

exercise

of

iudgment,

such

that

the

act

was

done

in

capricious,

whimsical,

arbitrary

or

despotic

manner'

In

a

petition

for

certiorari,

the

iurisdiction

of

the

appellate

court

is

narrow

in scope.

It

is

limited

to

resolving

only

errors

of

j

u

risd

ictio

n

."1

of

of

A

fortiori,

the

assailing

the

trial

court's

office

of

a

certiorari

Petition

finding

of

Probable

cause

for

159()22.28

April

2005,451

SCRA

205'

515'

1

PETITION

FOR

NEYTETY

ONCEBTIOBABI

UNDENN

I

Clt,rtt

r'. Court

o.f

.4ppeal.s,

G.R.

No.



issuance

of

warrant

of

arrest

is

merely

to

determine

whether

the

same

has

factual

and

legal

bases

and

are

sufficient

to

indict

respondent

for

the

crime

charged.

It

is

beyond

the

ambit

of

the

certiorari

petition

to

rule

on

the

credibility

of

the

witnesses

and

the

probable

value

of the

evidence so far

presented

bY

the

Parties.

HERE,

there

exists

probable

cause

for

issuance

of

warrant

of

arrest

against

accused-respondent

for

Qualified

Theft

based

on

the

following

undisputed

facts:

a.ACCUSED-RESPONDENTCoNCLUSIVELY

ADMITTED

IN

HIS

COUNTER-AFFIDAVIT2

THAT

DURING

HIS

STINT AS

THE

GENERAL MANAGER

AND

OPERATOR

OF

PRIVATE

COMPLAINANT

UM'S

BPTI,

HE

CAUSED

THE

TAPPING

OF

BPTI'S

WATER

AND

ELECTRICITY

TO

BE

USED

IN

THE

CONSTRUCTION

OF

HIS

NEARBY

CTTL

BUILDING.

b.PERTHECERTIFICATIONISSUEDBYUM'S

CORpORATE

SECRETARY,3

NO

UM

BOARD

RESOLUTION

WAS

ISSUED

AUTHORIZING

ACCUSED-RESPONDENT

TO

TAP

WATER

AND

ELECTRICITY

FROM

BPTI

TO HIS

CTTL

BUILDING.

C.ONTOPOFALL,ACCUSED-RESPONDENT,S

SURREPTITIOUS

ELECTRICAL

AND

WATER

TAPPING

WERE

MADE

BY

HIM

WITHOUT

THE

KNOWLEDGE

NOR

CONSENT

OF

THE

UM

BOARD

OF

TRUSTEES.

Rightly

so,

considering accused-respondent's

aforesaid

conclusive

admission,

and

based

on

solid

factual

premises

backed

up

by

evidence,

the

OCP-Baguio

City

thus

found

probable

cause

to

indict

respondent

for

Qualified

Theft

in its

Resolution

on

Review

dated

23

September

zOL1a

and

Second

Resolution

on

Review

date

d

23

November

2011s.

On

respondent's

appeal,

such

administrative

probable cause

finding

was

affirmed

by

the

DOJ

in

its

Resolution

dated

09

June

20156.

Moreover,

the

RTC

-

Baguio

City

7

and

60

later

found

probable cause

for

issuance

of

warrant

of

arrest

'

Pl"as"

see

Aturex

"C"

hereof.

t

pl"o."

scc Ccrtiflcalion

clatcd 07

July 201

I issued

by

UM's

Cot'pot'ate

Sccrctary

Atty.

Diosdatlo

C' Madrid,

attaclrctl

as Atruex

to UM's

Criminal

Cornlllaint,

Anuex

"B"

het'cof'

4

PI"r,."

scc Arrncx

"F" hcrcof.

5

Pl"naa

sce Arrucx

"1" hcreof'.

t'

Plan."

scc Anr.rcx

"l(" helco'l'.



against

respondent

vis-tr-vis

the

charge

for

Qualified

Theft.T

O;

,"rpondent's

petition

for

certiorari,

the

Court

of

Appeals

ISpecial

Tenth

Division]

likewise

unanimously

affirmed

the

trial

courts'

judicial

determination

of

probable

cause

for

issuance

of

warrant

of

arrest

againlt

respondent,

and

accordingly

denied

his

certiorari

petition'B

In

its

assailed

split

3-2

Amended

Decision

dated

2

November

2014

and

Resolution

dated

0B

August

2015,

the

court

of

Appeals'

[Former

Fourth

Division

-

Division

of

Five]

majority

nonetheless

reversed

and

set

aside

the

trial

courts'

above

probable cause

finding.

This

by

practically

accepting

hook

line

and

sinker

accused-respondent's

defenses,

to

wit:

(a)

his

father

Dr.

Virgilio's

alleged consent

to

his

taking

of

water

and

electricity

fiom

BPTI;

(b)

bona

fide

or

good faith;

and

(c)

lack

of

intent

to

gain.

Contrary

to

the

Court

of

Appeals'

[Former

Fourth

Division

-

Division

of

Fivel

majority's

erroneous

supposition

and/or

theory

however,

these

hotly

contested

factual

issues

of

consent

to

the

taking,

good

faith

and

lack

of

intent

to

gain are matters

of

defense

that

ought

to

be

resolved

by

the

trial

court

after

a

full

blown

trial

on

the

merits.

worse,

aside

from

being

premature

such

factual

findings

are

even

prima

facie

belied

by

the

records'

Indeel

,

by

resolving

the

same

this

early,

worse

ahead

of

trial,

ii

effectively

weighed

the

credibility

of

the

parties'

respective

witnesses

and

determined

the

probative value

of

the

evidence

so

far

proffered

by

the

parties.

In

doing

so,

the

Court

of

Appeals'

[Former

Fourth

Division

-

Division

of

Five]

majority

had

thereby

acted

as

if

it

was

a

trial

court,

and

worse

indubitably

went

beyond

its

certiorari

j

u

risd

iction.

HENCE,

THIS

PETITION.

NATURE

OF

THE

PEJITION

This

is

a

petition

for

review on

certiorari under

Rule

45,

LggT

Rules

of

Civil

Procedure,

as

amended,

seeking

to annul

and

set

aside

the

Court

of

Appeals'[Fourth

?

Pl"n."

see

Anucxes

"L" antl

"Q"

trereof.

t

Pl"n."

sec Atrtrcx

"V" helcttf'.



Division-DivisionofFive]3-2AmendedDecisiondated

2L

November

20L4,

unO

Court

of

Appeals

[Former

Fourth

Division-

Division

it

Fivel

3-2

Resolution

dated

128August20t5inCA.G.R.SPNo,t2B265,entitled

*Atty.

Ernesto

L.

Detos Santos

vs'

RTC

-

Baguio

City'

Br'

60

and

8r,7,

and

tJniversity

of

Manila,

represented

by

Emity

D,

De

Leon,,,

certified

true

copies

of

the

said

CA

Decision

a

nd

Resolution

a

re

attached

hereto

as

Annexes

"A"

and

"A-1"'

On '

Private

comPlainant

UM

received

u

.opy

or

the

court

of

Appeals'

IFourth

Division

Division

of

'Fivel

first

assailed

Decision

dated

21

November

20L4

in

CA-G.R.

sP

No.

L28265

which

reversed

and

set

aside

the

previous

court

of

Appeals'

[special

Tenth

Division]

Decision

dated

30

July

2aL3

'

nullified

the

trial

courti'

finding

of

probable

cause

for

Qualified

Theft

against

accused-respondent,

dismissed

tire

complaint and

quashed

the warrant

of

arrest

against

accused

respondent,

for

which

private

complainant

UM

timely

moved

for

reconsideration

thereof

on

L7

December

2O14.

on

16

September

2o15,

private

complainant

uM

receiveO

a copy

of

the

Court

of

Appeals'

IFormer

Fourth

Division

Division

of

Fivel

second

assailed

Resolution

dated

28

August

2015

denying

its

motion

for

reconsideration;

hence

had

till

O1

October

2O15

within

wh

ich

to

file

with

th

is

Honora

ble

cou

rt

a

petition for

review

on

certiorari

under

Rule

45'

on

01

octob

er

2015,

on

behalf

of

the

People

of

the

Philippines,

private

complainant

UM,

on

meritorious

grounds,

moved

for

extension

of

thirty

(30)

days

from

Of

October

2015

or

till

31

October

2O15

within

which

to

file

this

instant

petition

for

review

on

certiorari.

on

the

same

day

of

01

october

20L5,

the

osc,

thru

Assistant

Solicitor

General

Bernard

G'

Herna

ndez,

had



assured

DoJ

Prosecutor

General

claro

A'

Arellano

that

the

OSG

shall

ratify

or

give its

conformity

to

private

colplainant

UM,s

motion

for

exiension

of

time

to

file

petition

for.

review

on

certiorari,

and

this

instant

petition

for

review

on

certiorari.e

THE

PARTIES

Petitioner

People

of

the

Philippines

is

represented

herein

by

the

office

of

the

solicitor

General

("osc',)

pursuant

to

section

35

(1),

chapter

-_L2,

Title

III,

Book

IV,

Administrative

Code

of

t987,

with

office

address

at

No

'

L34

Amorsolo

street,

Legaspi

Village,

L229

Makati

city.

Private

complainant

University

of

Mania

(*uM',)

is

an

educational

institution

duly

organized

and

existing

under

philippine

laws,

with

office

addiess

at

No.

546,

M.V.

Delos

Santos

street,

sampaloc,

Manila.

It

may

be

served

notice

and

processes

through

its

counsel

Madrid

Danao

and

carullo,

at

suite

1609

Jollibee

Plaza,

F.

Ortigas,

lr'

Road,

Ortigas

Center,

1605

Pasig

CitY.

Respondent

Ernesto

L.

Delos

santos

is

of

legal

age,

Filipino

and

residing

at

No.

108

Cenacle

Drive,

Senville

subdivision,

Tandang

sora,

Quezon

city,

where

he

may

be

served

notice

and

processes.

He

may

be

alternatively

served

notice

and

processes

through

his

counsel

Atty.

Filibon

Fabela

Tacardon

of

Tacardon

and

Partners,

dt

Unit

501,

West

Mansion

Condominium,

West

Avenue

cor.

Zamboanga

Street

LtO4

Quezon

CitY.

STATEMENT

OF

FACTS

AND

ANTECEDENT

PROCEEDINGS

1.

Sometime

in

1913,

the

University

of

Manila

was

organized

and

established

by

Dr.

Mariano

V.

Delos

Santos,

hi;

brother

Dr.

Apolinario

Delos

Santos,

Dr.

Buenaventura

Bello,

Atty.

Antonio

Rivera

and

Maria

Delos

Santos.

2.

Per

its

Articles

of

Incorporation,

uM

was

incorporated

as

an

ordinary

corporation.

Through

the

years,

',

plc,rsc

sec

tlrc

OSG's

lcttcr.tlatcd

0l

Octobcr

2015

to the

DOJ,

attrched

as

Annex

to this

instatrt

Petition's

Vcrificntion

antl Ccltificatiolt

Against

Notr-Forutn

Shopping.



the

UM

Board

of

Trustees

immediate

members

of

the

included

individuals

who

are

not

Delos

Santos

familY.

3.PursuanttothepurposesunderitsAmended

Articles

of

Incorporation,

specifically

the

establishment

and

operation

of

tourist

inns,

private

respondent

UM

established

in

Baguio

City

the

Benguet

Pines

Tourist

Inn

("BPTI")'

a

business

entity

without

i[s

own

juridical

personality'

4.SometimeinMay2ooT,respondent-ErnestoL.

Delos

santos

-

("respondent"),

then

being

the

General

tutunugur

and

operator

of

BPTI,

as

well

as

Executive

vice

President

and

Vice-Chairman

of the

UM

Board

of

Trustees

and

university

Registrar,

commenced

the

construction

of

his

CTLL

Building,

rit.'i.l'1

is

nearby

or

adjacent

to

BPTI'

consequently,

sometime

in

Ju ly

2007

,

respondent

instructed

policarpio

M.

Lacsa

("Lacsa"),

then

his

driver,

to

use

the

electric

current

of

BPTI

for

the

ball

cutter,

bender

and

welding

that

were-

being

used

for

the

construction

of

his

CTTL

Building.'o

However,

this

without

any

authorization/coisent

from

nor

knowledge

of

the

UM

Board

of

Trustees."

5,

When

the

first

floor

of

his

CTLL

Building

was

finished,

respondent

then

ordered

Lacsa

to

make

an

electrical

connection

coming

from

BPTI

going

to

the

basement

of

the

CTLL

BuitJini,

to

which

the

tdtter

obeyed'12

Again,

this

was

made

without

any

authorization/consent

from

nor

knowledge

of

the

UM

Board

of

Trustees.

6.

On

2t

January

2008,

respondent's

father,

Dr.

Virgilio

Delos

Santos

("Dr.

Virgilio"),

died'

Prior

to

his

deJth,

Dr.

Virgilio

was

the

Chairman

of

the

Board

of

Trustees

and

7O.7go/o

controlling

stockholder

of

UM'13

7.

During

his

period

of

illness,

Dr.

Virgilio

was

not

in

good

terms

wittr

respondent.

In

fact,

Pr.

Virgilio

never

reconciled

with

respondent

until

his

death'14

t0

pleasc

scc

policnrpio

Lacsa's

Altclavit

tlatcd

07 July

2011,

attached

as

Atrncx

to

UM's

Criniinal

CotnPatry, Anncx

"B"

hcrcot.

rr

pleasc

scc

Ccrtificatitu

tlatcd

07

July

20ll

issued

by

UM's

Corporatc

Secretary

Atty.

Diostlndo

G'

Madritl,

attachcd

as

Atrucx

to

UM's

Crinrinal

Conrplaint,

Anncx

"B"

hercot'

Ir

I'crlicarpit'r

Lacsa's

Alliclavit

clatcd

07 July

201 l,

Supru"

rr

plcasc.cc

Anncxcs

"2" t<t"2-C"

ol'rcspontlcnt's

Courttcr-At'titlavit,

Anncx

"C"

hcrcof"

la

plcusc

scc

Atlclavit

clated

0l

Scptcrribcr

2008

of

Ma.

corazon

Ramoua

l-lanras

Dclos

Siintos

antl

Sinurtlllaang

Salaysay

clatccl

0g

August

20ll

of

Eiccta

Dacuan

Alcvalo

attachcd

its

Anncxcs

to UM's

Reply-Aflidtvit,

Anncx

"D"

hcrcof.



B.SometimeinFebruary2009,-respondentinstructed

Lacsa

to

connect

the

water

supply

of

GTLL

Building

to

the

water

installation

of

BpTI

for

the

purpose

of

making

water

supply

to

the

second

floor

of

CTLL

Building,

which

respondent

intended

to

open

for

tourist

who

will

be

spending

the

valentine,s

day

therein.ls

Again,

this

tapping

of

water

supply

from

BPTI

was

without

an

authorization

from

the

UM

Board

of

Trustees.

g.

At

their

meetings

held

on

18

May

2011

and

t5

June

20L7,

the

members

of

the

uM

Board

were

informed

that

BPTI,

then

under

the

management

of

respondent,

had

incurred

an

operation

net

loss

of

php711,555.13.

It-appears

that the

said loss,

among

others, was due

to

the fact

that

respondent

was'competing

with

the

business

of

BPTI'

Worse,

it

appears

that

resp-ondent

was

diverting

the

guests

of

BpTI

to

his

Dely's

Inn

iocated

at

the

CTTL

Building

and

the

employees

of

BPTI

were

even

required

by

respondent

to

serve

in

his

DelY's

Inn.

10.

on

16

July

2011,

Dr.

Emily

D.

De

Leon

("Dr.

De

Leon,,),

President

of

private

complainant

uM,

went

to

Baguio'to

check

BPTI

and

its

personnel.

She

was

authorized

Oyine

UM

Board

of

Trustees

to

check

and

verify

the

various

anomalies

allegedly

committed

by

respondent

while

he

was

managing

BPTI,

and

to

renovate

the

BPTI

premises'

There,

Dr.

De

Leon

came

to

know

about

the

25

booklets

of

missing

receipts

of

BPTI

which

occurred

while

respondent

was

the

General

Manager

and

Operator

of

BPTI'

11.

about

the

him

upon

Worse,

Dr.

De

Leon

was

then

apprised

by

Lacsa

illegai

water

and

electrical

connections

made

by

instiuctions

of

resPondent.

16

L2.

Thus,

pursuant to

its

Board

Resolution

dated

15

June

Z}tt,

UM,

through

its

Presidert,

Dr'

De

Leon,

filed

on

0B

luly

2011

a

criminal

complaintlT

for

Qualified

Theft

with

the

Office

of

the

City

Prosecutor

of

Baguio

City

(*OCP-

Baguio

city"),

docketed

as

NPS

Docket

No.

INV-11-01553.

This was

subsequently

raffled

to

investigating ACP

Ma'

Nenita

A.

Opiana.

ls

Policalpio

Lacsa's

Ailidrvit

datcd

07

July

201

l, Stqru.'

ro

plcasc

sec thc

Aflldavit

datcd

07.luly

zot

t otDr'.'Enrily

De

Leon,

attached

as

Atr.ex

to UM's

Criminal

ConWlaint,

Annex

"B"

licrctlt.

',

A

",.,1ry

o1.

UM's

Criutinal

Contplaint

with

Annexcs

is attachcil

lrercto

as

Anltex

"8".



13.

On

28

July

zoLt,

respondent

filed

his

counter-

affiOavit'u

wherein

he

categorically

admitted

that

he

actually

caused

the

tapping

of

water

and

electricity

from

BPTI

to

his

CTTL

'euilaing.

However,

by

way

of

defense,

respondent claimed

that

his tapping

of

water

and

electricity

from

BPTI

to

his

CTTL

Building

were

made

with

the

consent

or

permission

of

his

father,

Dr.

Virgilio,

majority

stockholder

of

UM.

L4.

In

its

reply-affidavit,le

UM

through

Dr.

De

Leon

pointedly

debunked

the

purported

consent

or

permission

of

Dr.

Virgilio

and

asserted

that

the

same

is

even

barred

or

prohibiGd

under

the

"Dead

Man's

Statute"

rule.

Dr.

De

Leon

further

pointed

out that

the

sworn

statements

of

respondent's

witnesses

are

highly

self-serving

considering

that

Yolanda

calanza

and

Josephine

Penera

are

employees

of

respondent,

and

Cynthia

Delos

Santos-Chan,

sister

of

respondent,

is

his

co-oppositor

to

the

probate

of

Dr.

Virgilio's

holographic

will

pending before

the

RTC-Manila.

She

alJo

pointed

but

that

the

UM

Board

of

Trustees

did

not

authorize

nor

consent

to

respondent's

tapping

of

water

and

electricity

from

BPTI

to

his

CTTL

Building.

15.

However,

in

the

OCP-

Bag

u io

CitY

complaint

for

Qualified

its

Resolution

dated

29

July

20l- 20,

thru

ACP

OPiana

dismissed

the

Theft

for

lack

of

Probable

cause.

16.

On

19

August

Z}fi,

UM

timely

moved

for

reconsideration2l

of

the

Resolution

dated

29

July

ZOLL.

On

23

August

ZOLI,

UM

filed

its

Amended

Motion

for

Reconsideration

dated

22

August

20

",

which

respondent

opposed23.

L7.

In

its

Resolution

on

Review

dated

23

September

2O

LL'o,

the

OCP-Baguio

City

thru

ACP

Rolando

T.

Vergara

reversed

the

earlier

resolution

of

ACP

Opiana

and

found

probable

cause

to

indict

respondent

for

the

crime

of

Qualified

Theft.

'8

A

cr',1ry

of rcspttndcttt's

Coirntcr-Att'idavit

is

attachccl

ltcrcto as

AIlllex

"C"'

"'

A nuj',y

of UM's

Reply-Aflidavit

rvitlr Anncxcs

is

attached

hereto

as

Attllex

"D"'

'u

Pl.or"

."" Anncx

"F",

rcspondcnt's

Petition

fil'Ccrtiorari

dated

l5

Fcbluary

2013, Anncx

"R"

hc|eol

2l

Pl"nsc

sec A11cx

"G", rcsporrclcnt's

Pctitiou

lirr

Cct'tiorru'i

dttcrl

l5 Fcblunty

2013,lbitl."

:2

A

colry

olUM's

Anrcndcd

Motion

hrr

Rcconsitleration

rlatcd

22 August

20

ll with Atrtrcxcs

is

attachecl

lrct'eto as

.A.nnex

"E".

2r

Pl"ase

scc Ap1cx

"l",

rcspondcnt's

Pctition

lirrCcrtiot'ari

daterl

l-5 Fcbluary

2013,Srtpru..

,rA"npyoltlre

OCP-BaguioCity'sResolutiononRcviewtlatccl

23Scpteutber20llisattachedheretcrasAnnexo'F".



18.

Thereafter,

the

corresponding

information2s

for

Qualified

Theft

was

filed

with

RTC-Baguio

city,

docketed

as

criminal

case

No.

32306-R

entitled

"

People

of

the

phitippines

vs.

Ernesto

Delos

santos

y

Llamas'"

The

case

was

subsequently raffled

to

Branch

7

thereof

then

presided

by

J udge

Mona

Lisa

V.

Tiongson-Tabora

'

19.

By

virtue

of

the

Warrant

of

Arrest26

issued

by

Judge

Tiongson-Tabora,

respondent

was

arrested

on

27

Septem

ber

20

1

1

.

20.Meantime,on24octoberZott,respondent

moved

for

reconsiderationZT

of

the

OCP-Baguio

City's

Resorution

on

Review

dated

23

september 2011, which

uM

opposed2s.

ZL.

Respondent

likewise

moved

for

inhibition2e

of

the

entire

ocP-Baguio

city

from

further

taking

part

in

the

proceedings.

rtris

however

was

denied

by

the-

oCP-Baguio

City

per

its

Resolution

dated

t7

November

201130'

22.

In

its

second

Resolution

on

Review

dated

23

November

201131,

the

OCP-Baguio

City

thru

Deputy

City

Prosecutor-In

Charge

Gloria

Caranto-Agunos

denied

respondent's

motion

for

reconsideration'

23.

Respondent

then

appealed

via

petition

for.

review

with

the

DOJ

becretary

the

OCP-Baguio

City's

resolutions,

to

which

UM

commented.32

23.L

In

its

recent

Resolution

dated

09

June

201S33,

the

DOJ,

thru

Prosecutor

General

Claro

A.

Arellano,

dismissed

respondent's

petition

for

review.

15

Annex

'oG" ltereol.

ro

p

l"nse

scc

Anncxcs

'.

L"

and

"

M

",

rcspondcnt's

Pctition

f'ol Ccltiorari

datcd

I

5 Fcbrunry

2013

,

Strpxr

' '

17

plca."

scc

Anncx

"O",

rcspondcnt's

Petition

{br

Celtiolari

datcd

l5 Fctrruary

2013,

Strpro..

^n

.,rp,,rttUM's

Opposition

datcd

05

Novcrnbcr20ll

with

Atrtrcxcs

is

attachcd

hcrcto

as

Anllex'ol.l'n'

'opt"n."

scc

Auncx

"P",

r'cspondctrt's

Pctition

{br Ccrtiorari

datcd

l5

Fcbruary

2013,

Suptu"

3,,

plcase

scc

Anncx

"R",

respondcnt's

Pctition

lirr

Ccltiorari

datctl

l5

Fcbrtraty

2013,

Supro..

,'e'"-,,rrv.'"i,rl"

ocp-ringuio

City's

Sccond

Rcsolution

on

Rcvicrv

datcd

23

Novctrttrcr

2013

is attaclrctl

hercto

as

Attnex

o'1".

3'

A

.,,1]y

ol'UM',s

DOj

Cturnrcnt

datcd

02 Janua|y

20I2

is attached

ltelcto

as

Annex

"'1"'

tt

Artnex

"l("

hcrcol.



24.

Meanwhile,

on

03

october

2011,

respondent

filed

with

RTC-Baguio

city,

Branch

7

an

urgent

omnibus

Motion

dated

30

Septembei

2011,

(i)

for

judicial

determination

of

probable

cause;

(ii)

to

lift/quash

warrant

of

arrest;

and

(iii)

to

defer/suspend arraignment and/or any

proceedings3a'

On

04

October

Z0tt,

res[ondent

filed

an

Urgent

Supplemental

Motion3s.

25.

In

her

Order

dated

01

February

2OL236

J

udge

Tiongson-Tabora

denied

respondent's

sought

declaration

of

lack

of

probable

cause,

but

surprisingly

granted

his

motion

to

post

bail

ruling

that

h"

instant

ftrulified

Theft

charge

involving

PhP3Million

is

NOT

a

"NON-

BAILABLE',

offense.-Respondent

was

then

hastily

released

from

custody

pursuant

to

the

Order

of

Release

dated

02

Februa

ry

20 237

.

26.

Thereafter,

at

his

scheduled

arraignment

held

on

06

February

2O 2,

respondent

pleaded

"NOT

GUILTY'38

to

the

crime

charged

of

Qualified

Theft'

27.

Subsequently,

both

respondent,

and

the

Prosecution

thru.private

complainant

UM,

moved

for

partial

reconsideration3e

of

the

Order

dated

01

February

20L2.

On

L7

February

20L2,

the

Prosecution

filed

an

Urgent

Supplemental

Motion

for

Partial

Reconsideration.a0

28.

Pending

resolution

of

the

parties'

motions

for

partial

reconsideration,

uM

then

moved

for

inhibition

of

)udge

Tiongson-Tabora,

which

respondent

opposed'

In her

Order

dated

05

October

2012,

Judge

Tiongson-Tabora

inhibited

herself

from

handling

the

case.

Thereafter,

the

case

was

re-raffled

to RTC-Baguio

City,

Branch

60

then

presided

by

Judge

Edilberto

Claravall.

3t

Irlcasc

scc

Arrncx

"T",

rcsponclcnt's

Pctition

lor

Ccrtiorali

datcd

l5 Fcbruary

2013,

Supro..

3t

lrleasc

sce

Auncx

"U",

rcspondcnt's

Pctition

fbr Certiorari

datcil

l5 February

2013,

Srtpru..

roAcol,yolthcRTC-BaguioCity,BranchT'sOldclclatccl

0t

Fcbrtrary20l2isattachetl

hel'ctoasAItnex"L"'

37

Alutex

"Mo'hcrcol.

t8Arrt,"*

"Nt'

lrereol'.

,,enu"*".

"V"

anrl

"W",

rcsl;onclcnt's

Pctition

lirl

Ccltiorari

clatcd

l5

February

2013,

Supro..

A

copy

of

UM's

Motion

fbr

Partial

Rcconsitlcratittn

is attachcd

liercttl

as Annex

o'0".

loAlrnex

"Poo

ltercof'.

l0



29.

subsequently,

Judge.

claravall

issued

his

order

dated

07

December

2OL2o',

the

dispositive

portion

of

which

reads:

*WH

EREFORE,

all the

foregoing

premises

considered,

the

Motion

for

Partial

Reconsideration

filed

by

the

accused

Ernesto

delos

Sa

ntos

is

DENIED

for

lack

of

merit'

However,

the

Motion

for

Partial

Reconsideration

filed

by

the

Private

Complainant

is

GRANTED'

The

Order

of

the

Court

dated

FebruarY

,

20L2

granting

the

accused

the

right

to

bail

is

recalled

'

Consequently,

the

bail

posted

by

the

accused

in

the

amount

of

P80,000'00

and

covered

by

Official

Receipt

No'

t275OB7

is

hereby

cancelled.

Let

the

aforementioned

amount

be

returned

to

the

payor

upon

proper

presentment

of

the

official

receipt

covering

the

said

payment'

Lastly,

let

a

new

wirrant

be

issued

against

accused

Ernesto

Delos

Santos."

(Emphasis

in

bold

suPPlied)

30.

Since

respondent

remains

at

large

and

there

is a

great

possibility of

flight,

the

Prosecution

moved

for

issuance

of

u

Hold

Departure

brder

against

him.

This

Judge

Claravall

granted

in

its Order

dated

13

February

20L3'

31.

Respondent

then

filed

with

the

Court

of

Appeals

a

petition

for

certiorari

under

Rule

6542

dated

15

February

2Ot3 seeking

the

nullification

of

RTC-Baguio

City,

Bfanch

7's

Order

dated

01

February

}OLL

and

Branch

60's

Order

dated

07

December

2012.

This

was

docketed

as

CA-G.R.

SP

No.

L28625,

and

raffled

to

the

Tenth

Division

thereof.

CA

Resolution

respondent's

to

admit

his

32.

dated

22

certiorari

replyaa

to

petition.

ResPondent

UM's

comment,

which

,,A

co1.,y

oI

RTC-Baguio

City,

Branclr

(r0's

Ortlcr

rlatctl

07 Dcccntbcr

2012 is

attaclrctl

ltereto

as

Anllex

"Q"

4'Arr,r"*

tt

l{tt

hcrcol.

{-t

A,trte*

'oStt

lrercof'.

44

Anna*

o'T"

ltcrcot'.

45

Artrru*

o'U"

ltcrcclf.

l1

Thereafter,

in

comPliance

with

the

March

20L3,

UM

commenteda3

to

then

moved

UM

opposed.as



33.

On

30

July

2013,

the

court

of

Appeals

[special

Tenth

Divisionl

u

nanimously

issued

its

Decisiona6,

the

dispositive

portion of

which

reads:

"WHEREFORE,

the

instant

Petition

is

DENIED.

The

Order

dated

December

7,

I:OLZ

of

the

Regional

Trial

Court,

Branch

7

of

Baguio

City

is

hereby

AFFIRMED

in

toto.

The

case

is

accordingly

REMANDED

to

the

trial

court

for

further

proceedings'"

34.

Thereafter,

respondent

moved

for

inhibition

of

the

Justices

of

the

court

of

Appeals

fspecial

Tenth

Division],

which

UM opPosed.

35.

Subsequently,

respondent

moved

for

reconsiderationaT

of

the

CA

Decision

dated

30

July

2013,

UM

then

filed

its

comment/oppositionae

thereto,

to

which

respondent

rePlied.ae

36.

Meantime,

after

several

postponements,

the

RTC-

Baguio

city,

Branch

60

was able

to

conduct

the

pre-trial

conference

of

the

case

on 26

February

20L4,

at

which

accused-respondent

dramatically

changed

his

defense

claiming

that:

*'

x x

x

he

did

not

steal

the

electrical

and

water

facility

of

the

Benguet

Pines

Tourist

Inn

because

the

tapping

made

by

the

accused

was

made

on

the

transformer

of

Benguet

Pines

Tourist

Inn

and

not

on

its

electric meter

of

Benguet

Pines

Tourist Inn'

x

x

x"5o

37.

Despite

the

fact

that

respondent's

accusations

were

baseless

and

unfounded,

on

05

March

2014,

the

Court

of

Appeals'

[Former

Special

Tenth

Division]

Justices

Acosta,

Lampas

Peralta

and

Antonio-Valenzuela

inhibited

from

further

handling

the

case.

4t'Annex

"Vtt

hcrcof.

"

Artu"*

"W"

ltct'ctll.

48

Annu*

ttX'o

licrcol.

o'

Arrrra*

"Y"

hcrcol.

,,

Cnpv

of

thc RTC

-

Baguio

City,

Blanch

(r0's

Prc-Trirl

Orrlel

clatctl

2(r

Fcbrualy

2014

is attachecl

hcl'cto

as

Annex

.(zr1

,

t2



38.

The

case

was

thus

re-raffled

to

the

cA

Fourth

Division.

surprisinglY,

voting

3-2,

the

court

of

Appeals

[Fourth

Division-Oivision

F ve]

issued

its

Amended

Decision

dated

2t

November

20

4u',

the

dispositive

portion

of

which

reads:

*WHEREFORE,

Premises

considered,

petitioner,sMotionforReconsiderationis

GRANTED.

The

assailed

Orders

of

the

trial

courts

are

SET

ASIDE.

The

Complaint

of

Qualified

Theft

against

the

petitioner

is

DISMISSED

for

lack

of

probable

cause

and

the

warrant

of

arrest

against

him

is

QUASHED."

39.

Thus,

on

17

December

20

L4,

UM

timely

moved

for

reconsiderationsz

of

the

said

Amended

Decision

dated

2

November

2014,

which

respondent

opposed's3

40.

On

28

August

2015,

the

Fourth

Division

-

Division

of

Fivel,

UM's

motion

for

reconsideration.sa

HENCE,

THIS

PETITION.

Court

of

ApPeals

[Former

again

voting

3-2,

denied

GROUNDS

FOR

ALLOWANCE

1.

5'

Plcasc scc

Anncx

"A"

hcrcof.

5t

Anltex

"AA"

ltcrcot'.

5t

Arrrre*

toBBot

hcrcot.

Ja

Pl"ns".scc

Antrcx

"A-1" hcreot'.

OF

THE

PETITION

I

THE

COURT

OF

APPEALS'

IFORMER

FOURTH

DIVISION

-

DIVISION

OF

FIVE]

MA]ORITY

WENT

BEYOND

ITS

CERTTORARI

JURISDICTION

IN

ISSUING

ITS

SPLIT

3-2

AMENDED

DECISION

DATED

27

NOVEMBER

2OL4

AND

RESOLUTION

DATED

28

AUGUST

20L5,

IN

THAT:

IN

CRIMINAL CASES,

THE

TRIAL

COURT

HAS

THE

EXCLUSIVE

ORIGINAL

]URISDICTION

TO

TRY,

13



2,

HEAR

AND

RESOLVE

CONFLICTING

FACTUAL

ISSUES.

EXCEPT

IN

ORDINARY

APPEAL,

THIS

POWER

CANNOT

BE

PREMATURELY

ARROGATED

BY THE

COURT

OF

APPEALS

IN

A

MERE

CERTIORARI

PETITION.

WORSE,

THE

COURT

OF

APPEALS'

IFORMER

FOURTH

DIVISION

Drvlsloru

oF

FIVEI

MAJoRITY's

FINDINGS

OF

*IMPLIED

AUTHORITY",

BONA

FIDE

BELIEF

OR

GOOD FAITH,

AND

LACK

OF

INTENT

TO

GAIN

HAVE

NO

FACTUAL

AND/OR

LEGAL

BASIS.

II

THE

COURT

OF

APPEALS'IFORMER

FOURTH

DIVISION

_

DIVISION

OF

FIVE]

MA]ORITY

GRAVELY

ERRED

IN

REVERSING

THE

OCP-BAGUIO

CITY/DO]'S

ADMINISTRATIVE

FINDING

OF

PROBABLE

CAUSE

AND

THE

RTC-

BAGUIO

CITY,

BRANCH

7

AND

60'5

DETERMINATION

OF

PROBABLE

CAUSE

FOR

ISSUANCE

OF

WARRANT

OF

ARREST,

IN

THAT:

RE:

CONFLICTING

FACTUAL

ISSUES

IF

AT

ALL,

THE

DISPUTED

FACTUAL

ISSUES

HERE

OUGHT

TO

BE

HEARD,

TRIED

AND

RESOLVED

FIRST

BY

THE

TRIAL

COURT,

NOT

YET

BY

THE

COURT

OF

APPEALS.

THE

FOLLOWING

ARE

THE

CONFLICTING

FACTUAL

PROPOSITIONS

OF

THE

PARTIES:

1

.

RESPON

DENT

CLAIM

ED THAT

HIS

FATHER

DR.

VIRGILIO

CONSENTED

TO

HIS

TAKING

OF

WATER

AND

ELECTRICITY

FROM

UM'S

BPTI

TO

HIS

CTLL

BUILDING.

IN

CONTRA,

UM

DENIED

THE

SAME

ASSERTING

t4



2.

THAT

IT

WAS

HIGHLY

IMPROBABLE,

IF

NOT

IMPOSSIBLE,

CONSIDERING

THE

BREWING

ANIMOSITY

BETWEEN

RESPONDENT

AND

DR.

VIRGILIO

EVEN

PRIOR

TO

THE

TIME

OF

THE

SUBJECT

TAKING

IN

2OO7

UP

TO

DR.

VIRGILIO'S

DEATH

IN

2OOB.

THE

COURT

OF

APPEALS'

IFORMER

FOURTH

DIVISION

DIVISION

OF

FIVE]

MA]ORITY'S

SWEEPING

CONCLUSION

THAT

THE

UM

BOARD

HAD

THEREBY

IMPLIEDLY

AGREED

OR

ACQUIESCED,

IS

HIGHLY

INAPPROPRIATE

AS

THE

TRIAL

COURT

HAS

NOT

FACTUALLY

RULED

THEREON

YET.

CONTRARY

TO

THE

COURT

OF

APPEALS'

IFORMER

FOURTH

DIVISION

DIVISION

OF

FIVE]

SPECIOUS

THEORY,

RESPONDENT'S

ALLEGATIONS

ON

DR.

VIRGILIO'S

ALLEGED

CONSENT

AND

THE

UM

BOARD'S

IM

PLIED

ACQUIESCENCE

ARE

HIGH

LY

DISPUTED

FACTUAL

MATTERS

THAT

CAN

ONLY

BE

VENTILATED

AND

RESOLVED

IN

A

FULL

BLOWN

TRIAL

BEFORE

THE

TRIAL

COURT.

AS

A

MATTER

OF

PROBABLE

CAUSE,

AS

BETWEEN

RESPONDENT'S

DEFENSIVE

CLAIM

VERSUS

UM'S

CONTRA,

THE

TRIAL

COURTS'

FINDING

OF

PROBABLE

CAUSE

MUST

PREVAIL.

RE:

THE

COURT

OF

APPEALS'

[FORMER

FOURTH

DrVrSroN

DrvrsroN

oF

FrvEI

MAJORITY'S

CONCLUSIONS

3.

4.

t5



ON

IMPLIED

AUTHORITY,

BONA

FIDE

BELIEF

OR

GOOD

FAITH,

AND

THE

ABSENCE

OF

THE

ELEMENT

OF

INTENT

TO

GAIN

THAT

WERE

USED

TO

OVERTURN

THE

TRIAL

COURTS'

FINDING

OF

PROBABLE

CAUSE,

ARE

INAPPROPRIATE

IN

THE

CERTTORART

PETITION'

THE

COURT

OF

APPEALS'IFORMER

FOURTH

DIVISION

-

DIVISION

OF

FIVE]

MAJORITY'S

EXCULPATING

CONCLUSIONS

SOLELY

UPHOLDING

RESPON

DENT'S

DEFENSES

OF

DR.

VIRGILIO'S

PURPORTED

CONSENT

TO

THE

TAKING

,

BONA

FIDE

BELIEF

OR

GOOD

FAITH,

AND

LACK

OF

INTENT

TO

GAIN,

ARE

HIGHLY

INAPPROPRIATE

IN

A

CERTIORARI

CONSIDERING

THAT:

PETITION,

THE

OFFICE

OF

CERTIORARI

IS

MERELY

TO

DETERMINE

WHETHER

OR

NOT

THE

TRIAL

COURT'S

FINDING

OF

PROBABLE

CAUSE

HAS

FACTUAL

AND

LEGAL

BASES.

IT

IS

NOT

WH

ETH

ER

RESPON

DENT'S

CLAIM

VERSUS

THAT

OF

UM

IS

CORRECT,

WHICH

CAN

ONLY

BE

RESOLVED

BY

THE

TRIAL

COURT IN

A

FULL

BLOWN

TRIAL.

WITHOUT

ANY

ABUSE,

LET

ALONE

GRAVE,

THE

TRIAL

COURTS'

FINDING

OF

PROBABLE

CAUSE

IS

WELL GROUNDED

UPON

THE

FOLLOWING:

A.

AS

CONCLUSIVELY

ADMITTED

BY HIM

IN HIS

COU

NTER-

AFFIDAVIT,

RESPONDENT

HAD

CAUSED

THE

TAPPING

OF

AND

DIVERTED

WATER

AND

5.

6.

l6



ELECTRICITY

FROM

UM'S

BPTI

TO

HIS

CTLL

BUILDING'

B.

RESPONDENT

HAD

TAKEN

WATER

AND

ELECTRICITY

FROM

UM'S

BPTI

WITHOUT

THE

CONSENT

OF

THE

UM

BOARD'

C.

RESPONDENT'S

DEFENSE

THAT

HE

TOOK

WATER

AND

ELECTRICITY

WITH

TH

E

CONSENT

OF

HIS

*DECEASED'

FATH

ER

DR.

VIRGILIO,

IS

FOREVER

BARRED.

D.

RESPONDENT'S

DEFENSE

OF

LACK

OF

INTENT

TO

STEAL

IS

EVIDENTIARY

IN

CHARACTER

AN

D

SHOU

LD

BE

BETTER

VENTILATED

AND

HEARD

IN

A

FULL

BLOWN

TRIAL.

7.

IF

AT

ALL, THE

HOTLY

CONTESTED

FACTUAL

ISSUES

OF

DR.

VIRGILIO'S

CONSENT

TO

THE

TAKING,

GOOD

FAITH

AND

LACK

OF

INTENT

TO GAIN

ARE

INDEED

MATTERS

OF

DEFENSE

THAT

OUGHT

TO

BE

RESOLVED

BY

THE

TRIAL

COURT

IN

THE

TRIAL

PROPER.

III

THE

COURT

OF

APPEALS

ISPECIAL

TENTH

DIVISION]

CORRECTLY

RULED

IN

ITS

RESOLUTION

DATED

30

JULY

2013

THAT

RESPONDENT

IS

NOT

ENTITLED

TO

BAIL

AS

A

MATTER

SINCE:

1.

PER

THIS

HONORABLE

COURT'S

RU

LING

IN

PEOPLE

OF

TH E

PHILIPPINES

VS,

HU

RUEY

CHUN

(G.R.NO. 158064.30

JUNE

2005;

462

SCRA

499,510-515)

AND

t7



OTHER

ESTABLISHED

]URISPRUDENCE,

THE

INSTANT

CRIMINAL

CHARGE

AGAINST

RESPONDENT

FOR

QUALIFIED

THEFT

IN

THE

AMOUNT

OF

PHP3,OOO,OOO.OO

PER

SE

IS

A

NON'

BAILABLE

OFFENSE,

AS

THE

PENALTY

THEREFOR

IS

RECLUSION

PERPETIJA

PER

ARTICLE

310

IN

RELATION

TO

ARTICLE

309,

REVISED

PENAL

CODE.

PER

EXISTING

DOJ'S

BAIL

BOND

GUIDE

FOR

QUALIFIED

THEFT,

NO

BAIL

SHALL

BE

RECOMMENDED

FOR

THE

SUB]ECT

CHARGE

OF

QUALIFIED

THEFT

WHERE

THE

VALUE

OF

THE

PROPERTY

STOLEN

IS

PHP3

MILLION,

MORE

OR

LESS.

DISCUSSTON

I

THE

COURT

OF

APPEALS'IFORMER

FOURTH

DIVISION

_

DIVISION

OF

FIVE]

MAJORITY

WENT

BEYOND

ITS

CERTIORARI

JURISDICTION

IN

ISSUING

ITS

SPLIT

3-2

AMENDED

DECISION

DATED

2T

NOVEMBER

2OI4

AND

RESOLUTION

DATED

28

AUGUST

20T5,

IN

THAT:

In

Viudez

II

vs,

court

of

Appealsss,

this

Honorable

Court

had

exPlicitlY

exPlained:

"It is

well

to

remember

that

there

is

a

distinction

between

the

preliminary inquirY,

which

determines

Probable

cause

for the

issuance

of

a

warrant

of

arrest;

and

the

preliminary

investigation

proper/

55

G.R.

Nr,. 152889.

05 Junc

2009;

5lt8 SCRA

345'

356-357,

l8

2.



which

ascertains

whether

the

offender

should

be

held

for

trial

or

be

released'

The

determination

of

Probable

cause

for

Purposes

of

issuing

a

warrant

of

arrest

is

made bY

the

judge.

The

preliminary

investigation

proper

whether

or

not

there

is

reasonable

ground to

believe

that

the

accused

is

guilty

of

the

offense

charged

is

the

function

of

the

investigating

prosecutor.

As

enunciated

in

Baltazar

v'

People,

the

task

of the

Presiding

judge

when

the

Information

is

filed

with

the

court

is

first

and

foremost

to determine

the

existence

or

non-

existence

of

probable

cause

for

the

arrest

of

the

accused.

Probable

cause

is

such

set

of

facts

and

circumstances

as

would

lead

a

reasonably

discreet

and

Prudent

man

to

believe

that the

offense

charged

in

the

Information

or

any

offense

included

therein

has

been

committed

bY

the

Person

sought

to

be a

rrested.

In

determining

probable cause,

the

average

man

weighs

the

facts

and

circumstances

without

resorting

to

the

calibrations

of

the

rules

of

evidence

of

which

he

has

no

technical

knowledge'

He

relies

on

common

sense.

A

finding

of

probable cause

needs

only

to

rest

on

evidence

showing

that,

more

likely

than

not,

a

crime

has

been

committed

and

that

it

was

committed

bY

the

accused.

Probable

cause

demands

more

than

suspicion;

it

requires

less

than

evidence that would

justifY

conviction."

(

Em

P

hasis

in

supplied)

19

bold



corollary,

in

serapio

vs,

sandiganbayat.uu,

this

Honorable

Court

had

unequivocally

stated:

"Absent

any

showing

of

arbitrariness

on

the

Part

of

the

prosecutor

or

anY

other

officer

authorized

to

conduct

preliminaly

investigation,

COURTS

AS

A

RULE

MUST

bTTTN

TO

SAID

OFFICER'S

FINDING

AND

DETERMINATION

OF

PROBABLE

CAUSE,

since

the

determination

of

the

existence

of

probable

cause

is

the

function

of

the

prosecutor."

(Emphasis

in

capital

and

bold

suPPlied)

Additionally,

in

People

vs,

Tees7,

this

Honorable

Court

had

emphaticallY

decreed

:

t'xxx

A

magistrate's

determination

of

probable

cause

for

the

issuance

of

a

search

warrant

is

paid

great

deference

by

a

reviewing

court,

AS

LONG

AS

THERE

WAS

SUBSTANTIAL

BASIS

FOR

THAT

DETERMINATION.

Substantial

basis

means

that

the

questions

of

the

examining

judge

brought

out

such

facts

and

circumstances

as

would

lead

a

reasonably

discreet

and

prudent man

to

believe

that an

offense

has

been

committed,

and the

objects

in

connection

with

the

offense

sought

to

be

seized

are

in

the

Place

sought

to

be

searched."

(Emphasis

in

capital

and

bold

suPPlied)

THUS,

just

like

the

prosecutor's

administrative

finding

of

probable cause

and

the

trial

court's

determination

of

probable cause

for

the

purpose

of

issuance

of

search

warrant,

as

long

as

the

trial

court's

determination

of

probable

cause

for

issuance

of

warrant

of

arrest

is

amply

supported

by

sufficient

facts

and

evidence,

the

5"

C.R.

Nr.,. 148769,28

Jantraly

2003; 39(r

SCRA

458,

468-469.

57

G.R.

No.

14054(t-47.20

January

2003;395

SCRA

419,

437-438.

20



appellate

in

a

mere

court

cannot

interfere,

Iet

alone

reverse

it,

certiorari

Petition

'

HERE,

in

its

Resolution

on

Review

dated 23

September

2011,

the

OCP-Baguio

City,

through

ACP

Rolando

T'

Vergara,

found

pronante

cause

against

respondent

for

Qualified

Theft,

ratiocinating

:

"After

careful

consideration

of

the

totality

of

the

evidence

submitted

on

record

by

both

parties,

we

find

for

the

complaint

University

of

Manila.

Atty.

Delos

Santos'

defense

of

alleged

exPress

consent

of

his

late

father

is

barred

and

prohibited under

the

"Dead

Man's

Statute"

Pursuant

to

Section

23,

Rule

13O

of

the

Rules

of

Court.

The

Supreme

Court

gives

reason

for

this

rule

that

"a

death

has

closed

the

tips

of

one

party,

the

policY

of

the

law

is

to

close

the

liPs of

the

other".

Nevertheless,

assuming

for

the

sake

of

argument

that

AttY.

Delos

Santos'

claim

that

his

father

gave

him

express

consent

to

make

such

electrical

and

water

connections

is

true,

bY

his

own

categorical

admission

and

as

stated

by

his

witnesses,

such

consent

of

his

late

father,

if

there

was

dtry,

was

onlY

limited

to

the

period

of the

construction

of

the

CTLL

building.

However,

even

after

the

comPletion

of

the

CTLL

building,

AttY.

Delos

Santos

did

not

disconnect

the

subject

electrical'

and

water

connections,

as

in

fact,

he

surrePtitiouslY

and

illegally

continued

to

make

use

of

the

same,

to

the

grave

damage

and

prejudice

of

the

UM.

This,

despite

the fact

that

sometime

in

March

ZOLO;

he

aPPlied

with

and

was

granted

bY

the

Baguio

Water

District

water

service

connection

for

his

CTLL

building

but

apparently

did

not

Push

through

2l



with

it for

the

obvious

reason

that

he

could

get

electricitY

and

water

from

the

BPTI

at

the

expense

of

the

UM.

More

imPortantlY,

since

the

matter involved

corPorate

property,

it

was

not

within

his

iather's

sole

decision

to

allow

him

to

tap

electrical

and

water

services

from

the

UM's

BPTI'

It

indubitably

required

the

approval

of

the

majoritY

of

the

board

of

directors

of

the

UM.

ClearlY,

AttY'

Delos

Santos

has

fallen

to

presentr ds

there was

none,

any

board

resolution

aPProving

such

electrical

and

water

connections.

The

inevitable

conclusion

therefore

is that

the

same

were

made

without

the

knowledge

and

consent

of

the

UM,

the

fact

being

that

the

UM

is an

educational

juridical

entity

with

a

personality

distinct

and

seParate

from

its

stockholders

and

the

same

was

created

Pursuant

to

the

corporation

law

bY

its

incorporation.

Being

a

corporation,

the

stockholders

have

only

an

inchoate

right

to

the

corporation's

ProPerties,

It is,

therefore,

misleading

for

AttY.

Delos

Santos

to

saY

that

the

UM

is

established

and

owned

bY

his

family

as a

juridical

entitY

which

owns

the

BPTI.

AttY.

Delos

Santos'

legal

PrePosition

that

the

UM

is a

close

corPoration

is

not

tenable

as

under

Section

96

of

the

Corporation

Code,

and

educational

institution,

like

the

UM,

cannot

be

incorPorated

as

a

close

corporation.sB

XXX

XXX

(Emphasis

in

bold

suPPlied)

XXX.,,

t*At

pp.

2-J,

Anncx

"l-"'hcrcot.

22



Thereafter,

in

resolving

respondent's

motion

for

reconsideration,

the

ocP

Baguio

city,

thru

Deputy

city

prosecutor

I;

Charge

Gloria

Caranto

Aquino,

affirmed

such

probable

cause

finding

in

its

second

Resolution

on

Review

dated 23

November

201L,

holding:

"We

reiterate

here

that:

ResPondent-movant

AttY.

Delos

Santos'

claim

that

his

taPPing

and

consumption

of

electricity

and

water

from

the

Benguet

Pine

Tourist

Inn

which

is

owned

by

the

complainant

University

of

Manila

was

with the

express

consent

of

his

late

father

Virgilio

D'

Delos

Santos

has

been

and

should

be

considered

as

barred

and

Prohibited

under

the

"Dead

Man's

Statute"

under

Section

23,

Rule

13O

of

the

Rules

of

Court'

ObviouslY,

Dr.

Virgilio

D.

Delos

Santos

being

alreadY

dead,

there

is

no

way

for

him

(Dr.

Virgilio

D.

Delos

Santos)

to

confirm

respondent-

movant's

claim

of

"consent"

given

by

his

late

father.

XXX

xxx

XXX

Respondent-movant

should

have

seriously

considered

the

fact

that

BPTI

is

owned

bY

comPlainant

UM

which

is

governed

bY

its

Board

of

Trustees

and,

as such,

it

is onlY

the

said

board

that

has

authority

to

give

valid

consent

to

his

use

of

electricity

and

water

from

BPTI

for

several

years

at

the

expense

of

complainant

UM'

But

he

did

not

ever

seek

such

required

consent

and

authority

from

the

Board

of

Trustees

where

he is even

a

member

and

Vice-Chairman.

Fu

rther,

the

decla

rations

of

witnesses

Dr.

Maria

Corazon

Ramona

Ll.

Delos

Santos

and

UM

23



employee

Electa

D.

Arevalo

would

r".io,.rsly

negate

resPondent-

movant's

allegation

of

consent

bY

his

late

father

Dr.

Virgilio

D'

Delos

Santos

for

his tapping

of

electricity

and

water

from

BPTI

owing

to

their

apparent

severe

estranged

relationshiP

as

father

and

son

way

back

2OO3

or

even

before,

in

that,

all

throughout

the

seasons

of

his

later

father's

being

on

his

sick

bed,

he,

and

even

his

sister

Dr.

CYnthia

Ll,

Delos

Santos-Chan,

were

rejected

by

their

father

to visit

him

because

them

ore

his

death

will

be

accelerated

due

to

the

stress

in

seeing

them

instead

of

recovering.

THUS,

WITH

him

THE

APPARENT

SERIOUS

ESTRANGED

RELATIONSHIP

WHICH

LASTED

UP

TO

THE

TIME

OF

DEATH

OF

THEIR

FATHER,

NOT

ANYONE

OF

RIGHT

MIND

CAN

PLAUSIBLY

CONCLUDE

THAT

RESPONDENT

RESPONDENT-

MOVANT

CAN

OBTAIN

THE

GENEROUS

CONSENT

OF

HIS

FATHER

FOR

THE

TAPPING

AND

UTILIZATION

OF

ELECTRICITY

AND

WATER

FROM

BPTI

AND

DIVERTING

rr To

CTLL

BUTLDTNG.

ALSO,

rT

WOULD

NOT

BE

NECESSARY

FOR

HIS

FATHER

TO

INSTRUCT

JOSEPHINE

PINERA

AND

YOLANDA

CALANZA,

WHO

ARE

MERE

EMPLOYEES

OF

UM

THEN

ASSIGNED

AT

BPTr,

TO

EXTEND

SUPPORT

TO

RESPONDENT-MOVANT

TO

INCLUDE

HIS

ELECTRIC

AND

WI\TER

NEEDS

WHEN

HE

WAS

THEN

THE

GENERAL

MANGER

AND

OPERATOR

OF

BPTI

AND

SAID

TWO

EMPLOYEES BEING

HIS MERE

SUBORDINATES.

SUCH

IS

RATHER

UNREAL

AND

CONTRARY

TO

NATURAL

EXPERIENCE.

24



We

note

the

untimelY

demise

his

late

father

Dr.

Virgilio

D.

Delos

Santos

on

JanuarY

21,

2008.

Yet,

he

did

not

at

any

time

thereafter

ever

seek

such

required

consent

and

authority from

the

Board

of

Trustees

of

UM'

Also,

the

fact

that

the

Board

of

Trustees

of

U

M

has

alreadY

exPresslY

Pointed

out

and

acted

against

his

aPParent

conflict

of

interest

in

his

management

of

BPTI

and

subject

to

verification

his

u

na

uthorized

tapping

and

use

of

electricitY,

witer,

and

other

suPPlies

from

BPTI

to

his

CTLL

building

and

DelY's

Inn,

he

should

have

comPletelY

disconnected

and

removed

his

said

tapping

installations

from

the

BPTI

immediatelY

or

soon

after

the

resolutions

of

the

Board

contained

in

the

Secretary's

Certificate

dated

June

15r

2011

was

sent

bY

the

Corporate

SecretarY

to

BPTI

through

fax

transmission

in

the

late

afternoon

of

said

date

and

that

is

whether

or

not,

at

that

time,

his

CTLL

building

is

still

undergoing

construction.

But

he

did

not

do

so

even

with

and

desPite

the

fact

that

in

march

2O1O

he

was

able

to

get

an

approved

water

service

connection

with the

Baguio

Water

District

for

his

CTLL

building.

THE

INEVITABLE

FINDING

THAT

CAN

BE

HAD

UNDER

THE

CIRCUMSTANCES

IS

RESPONDENT

THAT

MOVANT

UNLAWFULLY

TOOK,

WITH

INTENT

TO GAIN,

ELECTRICITY

AND

WATER

FROM

BPTI

WITHOUT

CONSENT

AND

AT

THE

EXPENSE

AND TO

THE

DAMAGE

AND

PREJUDICE

OF

COMPLAINANT

UM

WHICH

OWNS

THE BPTI.

25



Because

electricitY

and

water

from

BPTI

is

corPorate

ProPertY

of

complainant

UM,

it

would

onlY

be

the

Board

of

Trustees

of

UM

that

ca

n

consent

for

a

nd

authorize

respondent-movant

to

tap

electrical

and

water

utilities

from

BPTI'

Apparently,

there

was

no

board

resolution

whatsoever

aPProving

such

electricitY

and

water

were

made

without

the

knowledge

and

consent

of

the

UM

which

in

fact,

is

an

educational

juridical

institution

having distinct and

separate

personality

from

its

stockholders

under

the

CorPoration

Code'

As

such

juridical

entity

or

corporation,

the

stockholders'

inchoate

right

to

the

corporate

ProPerties

would

be

vested

on

them

onlY

upon

its

dissolution

and

liquidation

of

its

assets

or

ProPerties.

Further,

it

would be

misleading

to

claim

that

UM,

which

owns

the

BPTI,

is

considered

as

a

familY

owned

or

closed

corporation

considering

that,

under

Section

96

of

the

Corporation

Code,

the

UM,

being

an

educational

institution,

cannot

be

incorporated

as

a

close

corporation'

That

being

the

case,

only

valid

consent

or

authority from the Board

of

Trustees

of

comPlainant UM

can

permit resPondent-movant

to

lawfully

take

and

avail

of

electricity

and

water

from

BPTI.

XXX

XXX

XXX

Likewise,

we agree

with

the

finding

in the

Resolution

on

Review

that

considering that

resPondent-

movant

had

a

direct

hand

in

the

management

of

BPTI

in

his

caPacitY

as

general

manager

thereof

and

that

he did

not

in any

manner

denY

26



that

while

he

was

the

manager

and

oPerator

of

the

establishment,

and

being

then

a

stockholder

a

nd

member

of

the

Board

of

Trustee

of

the

comPlaina

nt

U

niversitY

of

Manila

which

owns

BPTI,

and

that

as

such

manager

and

oPerator

of

BPTI

and

stockholder

and

member

of

the

Board

of

Trustees

of

comPlainant

UM,

he

had

direct

and

full

access

to

the

entire

Premises

and

buildings

of

BPTI,

that

he

took

electricitY

and

water

from

BPTI

during

the

Period

covered

from

2OO7

and

divert

the

same

to

his

own

CTLL

building

and

which

electricity

and

water consumption

of

his

CTLL

building

and

DellY's

Inn

which

is

housed

therein

was

Paid

for,

not

bY

him

or

his

later

father

Dr.

Virgilio

D'

Delos

Santos

who

died

on

JanuarY

2L,

2OO8,

but

bY

complainant

UM,

the

commission

of

the

offense

charged

against

him

was

attended

bY

the

qualifYing

circumstance

of

grave

abuse

of

the

confidence

rePosed

uPon

him

bY

complainant

University

of

Manila'

"se

(Emphasis

in

capital

and

bold

supplied)

on

respondent's

appeal

via

petition

for

review,

the

DOl,

thru

Prosecutor General Claro

A.

Arellano,

affirmed

in

its

Resolution

dated

0B

June

20L5

such

probable cause

finding

of

the

OCP-Baguio

City,

holding:

"This

resolves

the

petition

for

review

of

the

t'Resolution

on

Review",

as

well

as

the

'tsecond

Resolution

on

Review"

of

the

City

Prosecutor

of

Baguio

City

in

the

above-

captioned

case,

both

upholding

the

finding

of

probable

cause

for

qualified

theft

against

respondent-appellant

Atty.

Ernesto

L'

Delos

Santos.

5"At

pp.

I4- l(r, Anrrex

"l'l

hclcot.

27



WE

HAVE

JUDICIOUSLY

REVIEWED

THE

RECORDS

OF

THIS

CASE

VIS-A.WS

THE

ARGUMENT

IN

RESPON

DE

NT-APPELLANT'S

PETITION,

BUT WE DID NOT FIND

ANY

COMPELLING

GROUND

OR

REASON

TO

REVERSE

OR

MODIFY

THE

FINDINGS

AND

CONCLUSION

OF

THE

INVESTIGATING

OFFICE,

WHICH

CORRECTLY

RULED

THAT

THE

ESSENTIAL

ELEMENTS

OF

THE

CRIME

OF

QUALIFIED

THEFT

ARE

PRESENT

IN

THE

CIRCUMSTANCES

OF

THIS

CASE'

Hence,

Pursuant

to

Section

12

of

Department Circular

No.

70

dated

July

3,

2000,

this

petition

may

be

dismissed

motu

proprio

since

there

is

no

showing

that

the

investigating

office

committed

any

reversible

error

in

the

questioned

resolutions'

WHEREFORE,

the

Petition

for

review

is

hereby

DISMISSED.'60

(Emphasis

in

capital

and

bold

suPPlied)

Thereafter,

in resolving

respondent's

motion

for

declaration

of

lack

of

probable

cause

for

issuance

of

warrant

of

arrest,

the

RTC-Baguio

City,

Branch

7

in its

Order

dated

01

February

2012,

found

probable

cause

against

respondent

for

Qualified

Theft,

ratiocinating

:

"Probable cause

is

the

existence

of

such

facts and

circumstances

as

would

excite

the

belief

in a

reasonable

mind

that

a

crime

has been

committed

and

that

the

respondent

is

probably

guilty

thereof

and

should

be

held

for

trial.

In

the

present

case,

the Court

agrees

with

and

affirms

the

findings

of

the

investigating

prosecutor,

Assistant

City

Prosecutor

Rolando

T.

Vergara,

that

probable cause indeed

exists

for

the

indictment

of

the

accused

for

the

crime

of

qualified

theft

considering

that

he

himself admitted

that

he

cause

the

tapping

of and

diverted

electricity

t'oAnncx

"t("

hcrcof'.

28



and

water

from

the

Benguet

Pines

Tourist

Inn

(BPTI)

which

is

owned

by

the

UniversitY

of

Manila

(UM)

to

the

CTLL

building

which

he

owns

without the

consent

of

aPProval

of

the

Board

of

UM.

Like

the

investigating

prosecutor, the

Court

finds

that

the

defense

relied

upon

bY

the

accused,

that

is,

that

the

ta

PPi

ng

a

nd

diversion

was

with

the

consent

of

his

late

father,

Fr'

Virgilio

D.

Delos

Santos

is

barred

and

Prohibited

under

the

"Dead

Man's

Statute"

under

Section

23,

Rule

13O

of

the

Rules

of

Court,

Dr.

Delos

Santos

could

not

possibly

confirm

the

claim

of the

self-serving

allegation

of

the

accuse

d,"61

(Emphasis

in

bold

supplied)

Subsequently,

ruling

on

respondent's

motion

for

partial

reconsideration

of

the Order

dated

01

February

20L2,

the

RTC-Baguio

City,

Branch

60 affirmed

in its

Order

dated

07

December

2012

the

above

finding

of

probable cause

of

RTC-

Baguio

City,

Branch

7

,

decreeing:

"The

issue

raised

by

the

accused

in

his

Partial

Motion

for

Reconsideration

must

first be

resolved

considering

that

the

same

involves

the

question

on

whether

or

not

probable

cause

exists

to

indict

him

of

the

crime

charged

in

the

information.

It

must be

pointed

out that

the accused

is

charged

with

the

crime

based

on

the

existence

of

a

probable

cause.

Probable

cause

is defined

as

a

reasonable

ground

of

presumption

that

a

matter

is, or

may be,

well-founded

in

such

a state of

mind

as

would

lead

a

person

of ordinary

caution

and

prudence

to

believe

or

entertain an

honest

or

strong

suspicion

that

a

thing

is

so.

It

is

a

lso

defined

as

such

facts as

a

re

sufficient

to engender

a

well-founded

belief that a

crime has been

committed

t"

Al

1r.

2. Arrrrcx

"L"

hcr'.'ol'

29



a

nd

that

resPondents

a

re

Proba

blY

guilty thereof.

There

are

two

kinds

of

determination

of

Probable

cause;

executive

and

judicial'

In

the

case

at

bar,

Probable cause

against

the

accused

has

alreadY

been

determined

under

both

instances'

THE

CONTENTIONS

OF

THE

ACCUSED

IN

HIS

PRESENT

MOTION

ARE

EVIDENTIARY

IN

NATURE.

THE

SAME

ARE

BETTER

APPRECIATED

IN

A

FULL.BLOWN

TRIAL

OR

IN

A

MORE

APPROPRIATE

MOTION.

THE

PRESENCE

OR

ABSENCE

OF

THE

ELEMENTS

OF

THE

CRIME

IS

EVIDENTIARY

IN

NATURE

AND

IS

MATTER

OF

DEFENSE

THAT

MAY

BE

PASSED

UPON

ON

A

FULL'BLOWN

TRIAL

ON

THE

MERITS'"62

(EmPhasis

in

caPital

and

bold

suPPlied)

Further,

in

ruling

on

respondent'S

petition for

certiorari,

the

Court

of

AppeatJ ;Special

Tenth

Divisionl

in

its

30

July

2Ot3

Decision

then

unanimously

denied

respondent's

certiorari

petition,

and

affirmed

in

toto

the

above

trial

courts'

finding

of

probable cause

against

respondent

for

Qualified

Theft,

holding:

*HERE,

WE

FIND

NO

GRAVE

ABUSE

OF

DISCRETION

COMMITTED

BY THE TRIAL

COURT

IN

AFFIRMING

THE

INVESTIGATING

PROSECUTOR'S

FINDING

OF

PROBABLE

CAUSE

TO

HOLD

ERNESTO

FOR

TRIAL

FOR

QUALIFIED

THEFT.

XXX

XXX

XXX

In this

case,

Ernesto

never

denied

having

used

or

taPPed

the

electricity

and

water

of

BPTI;

alleging

only

that

the

same

was

t't

At

p. 2,

Anncx

"Q"

hcrcot.

30



made

with

the

consent

of

his

late

father

Virgilio,

who,

at

the

time

the

construction

of

the

CTLL

Building

commenced,

served

as

President

of

UM.

The Pivotal

issue

therefore

is

whether

the

prosecutor

and

the

trial

court

has

reason

to

believe

that

Ernesto's

taking

of

electricity

and

water

constitutes

qualified

theft'

WITH

ERNESTO'S

ADMISSION,

THE

COURT

AGREES

THAT

IT

IS

PROBABLE

THAT

THE

CRIME

OF

QUALIFIED

THEFT

HAS

BEEN

CorrtMrrrED

AND

THAT

ERNEsro

rs

PROBABLY

GUILTY

THEREOF.

TO

reiterate,

We

are

not

here

concerned

with

the

finding

as

to

whether

all

the

elements

of

qualified theft

have

been

sufficiently

Proven

to

warrant

a

conviction,

because

to

require

the

same

would

already

be

beyond

the

scope

of

the

prosecutor

and

the

trial

court's

task

of

determining

probable cause,

as

these

are

matters

which

are

ProPerlY

addressed

in

a

full

blown

trial.63

XXX

XXX

XXX,,

(Emphasis

in

capital

and

bold

supplied)

Despite

such

sound

disquisitions,

the

Court

of

Appeals

IFormer

Fourth

Division-Division

of

Five]

nonetheless

i"u"rt"d

and

set

aside

the

foregoing

OCP-Baguio

City/DOl's

administrative

finding

of

probable cause,

and

the

RTC

Baguio

City,

Branch

7 and

60's

determination

of

probable

cause

for

issuance

of

warrant

of

arrest,

as

affirmed

no

less

by

the Court

of

Appeals

[Special

Tenth

Division].

HOWEVER,

the

Court

of

Appeals'IFormer

Fourth

Division-Division

of

Fivel majority went

beyond

its

cerfiorari

jurisdiction

in

issuing

its

assailed

split

3-2

Amended

Decision

and

Resolution,

in

that:

t'tAt

1rp.

t0-12,

Anncx

"V"

ltct'cof

31



1.

IN

CRIMINAL

CASES,

THE

TRIAL

COU

RT

HAS

TH E

EXCLUSIVE

ORIGINAL

JURISDICTION

TO

TRY,

HEAR

AND

RESOLVE

CONFLICTING

FACTUAL

ISSUES.

EXCEPT

IN

ORDINARY

APPEAL,

THIS

POWER

CANNOT

BE

ARROGATED

BY

THE

COURT

OF

APPEALS

IN

A

MERE

CERIIORAR/

PETITION.

In

criminal

cases,

the

trial

court

has

the

exclusive

original jurisdiction

to

trY,

hear

and

resolve

the

parties'

connicting

factual

issues.

This,

upon

its

due

determination

of

probable

cause

vis-ir-vis

the

issuance

of

the

corresponding

warrant

of

arrest.

This

power

cannot

be

arrogated

by

the

appellate

court

in a

mere

certiorarf

petition

where

the

sole

issue

is

"grave

abuse".

The

only

time

that

the

appellate

court

can

review

the

factual

findings

of

the

trial

court

is

when

the

decision

on

the

merits

is brought

to

it

on

ordinary

appeal.

This

ordinary

appeal

however

is only

possible

when

a

full

blown

trial

shall have

been

conducted

and

held by

the

trial

court.

l\H

El\D

OF

TRIAL

a

nd

WORSE,

IN

A

M

ERE

CERTIORARI

WHERE

THE

ISSUE

IS

MERELY

"GRAVE

ABUSE",

the

Court

of

Appeals'

fFormer

Fourth

Division

Division

of

Fivel

majority

had

indubitably

resolved

already

the

conflicting

factual

allegations

of

the

parties.

It effectively

weighed

the

credibility

of

the

parties'

respective

witnesses

and

determined

the

probative

value

of

the

respective

evidence

presented

by

them,

matters

ripe

only

in ordinary

appeal.

The Court

of

Appeals'

[Former

Fourth

Division

Division

of

Fivel

majority,

for

reasons

known

only

to them,

have

accepted

hook,

line and

sinker

respondent's

factual

defenses/allegations.

This despite

the

fact

that

these

factual

matters

were

explicitly:

A.

DENIED

AND

CONTROVERTED

BY

UM,

MORE

SO,

ARE

BELIED

BY

THE

RECORDS;

b.

BRUSHED

ASrDE

BY THE

OCP

-

BAGUTO

CrrY

/

DOJ AND

THE

RTC BAGUTO

CrrY,

BRANCH

7

AND 60

AS

DEFENSIVE

TRII\BLE

ISSUES

OF

FACT;

AND

32



c,

HELD

BY

THE

COURT

OF

APPEALS',

[SPECTAL

TENTH

DrVrSroNI

AS

*MATTERS

OF

DEFENSE

BETTER

AIRED

DURING

THE

TRIAL

PROPER".

Clearly,

in

resolving early

the

contested

factual

issues,

the

Court

of

Appeals

[Former

Fourth

Division

Division

of

Fivel

had

thereby

acted

as

if

it was

a

trial

court,

and

worse

went

beyond

its

certiorari

jurisdiction.

In

point,

in

Marcos-Araneta

vs, court

of

A,ppealslo,

this

Honorable

Court

had

decreed

that

the

Court

of

Appeals,

in

its

exercise

of

its cerfiorari

jurisdiction

under

Rule

65,

is

limited

to

reviewing

and

correcting

errors

of

jurisdiction,

eruditely

explaining:

"Clearly

then,

THE

CA

OVERSTEPPED

ITS

BOUNDARIES

WHEN/

IN

DISPOSING

OF

PRIVATE

RESPONDENTS'

PETITION

FOR

0ERTTORART,

rT

DrD

NOT

CONFTNE

ITSELF

TO

DETERMINING

WHETHER

OR NOT

LACK

OF

JURISDICTION

OR

GRAVE

ABUSE

OF

DISCRETION

TAINTED

THE

ISSUANCE

OF

THE

ASSI\rLED

RTC

ORDERS,

BUT

PROCEEDED

TO

PASS

ON

THE

FACTUAL

ISSUE

OF

THE

EXISTENCE

AND

ENFORCEABILITY

OF

THE

ASSERTED

TRUST.

IN

THE

PROCESS,

THE CA

VIRTUALLY

RESOLVED

PETITIONER

IRENE'S CASE

FOR

RECONVEYANCE

ON

ITS

SUBSTANTIVE

MERITS

EVEN

BEFORE

EVIDENCE

ON

THE

MATTER

COULD

BE

ADDUCED.

Civil

Case

Nos.

3341-L7

and

3342-L7

in

fact

have

not

even

reached

the

pre-trial

stage.

To

stress,

the

nature of

the

trust

allegedly

constituted

in

Irene's

favor

and

its

enforceability,

being

evidentiary

in

nature, are

best

determined

by

the

trial

court.

The original

complaints

and

the

amended

complaint

certainly

do

not

even

clearly

indicate

whether

the

t''

C.R. No.

l-5409(r.22 August

200ii; 5(r3 SCRA,4l,5u-59.

1)



asserted

trust

is

implied

or

express'

To

be

sure,

an

express

trust

differs

from

the

i'-Pfi"J

varietY

in

-l"t':

of

the

manner

of

Proving

its-

existence'

Su

relY,

the on'i of

factuallY

determining

whether

the

trust

altegeiiv"'Ettablished

in

favor

of

Irene,

if

one

was

indeed

established,

was

implied

or

express

Pro#iil'-

;trtains'

at

the

first

intttn"l,

t;

the

trial

court

and

not

to

th"-

ippellate

court

in

a

special

civil

action

for

certiorari

'

as

here'

In

the

absence

of

evidence

to

Prove

or

;it;;;;"

the

constitution

and

n"""tiarilY

the

existence

of

the

trust

agreement

between

lrene'

on

one

h;;d,

and

the

Benedicto

GrouP'

on

the

other,

the

aPPellate

court

"urrnot

intelligentlY

Pass

upon

the

issue

of

trust'

A

Pronouncement

on

saia

itt'"

of

trust

rooted

on

sPeculation

and

conjecture'

if

p.op..iy

challenged'

must,

be

struck

down.Soitmustbehere"'(EmPhasis

in

bold

suPPlied)

ContrarytotheCourtofAppeals,.[FormerFourth

Division -

Division

of

Fivel

majority's

stance6s,

while

Marcos'

Araneta

had

different

factual

milieu

from

the

instant

case'

the

enunciated

ruling

therein

is

clearly

relevant

and

applicable

to this

case'

clearly,

far

from

limiting

itself

in

resolving

whether

the

triar

courts

had

gravery

abr]sed

their

discretion

in

finding

probable

cause

for

issuance

of

warrant

of

arrest

against

accused-respondent,

the

Court

of

Appeals,

fFormer

Fourth

Division -

Division

of

Fivel

majority

delved

already

with

the

merits

of

the

case

as

it

alr"udy

ruled-

in

favor

of

accused-

respondents'

controverted

factual

defenses'

This

logically

presupposedtheweighingoftheparties,evidenceand

determining

the

credibility

of

parties'

respective

witnesses'

which

however

were

highly

inappropriate

and

improper

at

this

stage

of

the

Proceedings'

t''

At

p. 3,

Anttcx

"A-1"

hcrcol'

34



2,

WORSE,

THE

COURT

OF

APPEALS'

IFORMER

FOURTH

DIVISION

DIVISION

OF

FIVE]

FINDINGS

OF

*IMPLIED

AUTHORITY",

BONA

FIDE

BELIEF

OR

GOOD

FAITH

AND

LACK

OF

INTENT

TO

GAIN

HAVE

NO

FACTUAL

nrup/oR

LEGAL

BASIS.

As

the

OCP-Baguio

City/DOl'

ihg

nfC

Baguio

City'

Branch

7

unJ

OO

uni

the

3-b

unanimous

Court

of

Appeals

[speciat

renln-

biririon]

hio

spoken

on

the

existence

of

probable cause

against_r"rponolnt,,it.then

behooved

upon

the

Court

of

Appeals trornier

Fourth

?i'1't]?l-:'P-'l't'on

of

Fivel

to

heed

[f.,"i,

.alt.

This,

as

such

determination

of

probable

cause

is

well

"g-;";"ded

on

palpable

valid

facts,

alueil

contested

bt

respondent.

This

matter

of

exercise

of

discretion

oughi'hur"

butn

the

only

issue

in

the

certiorari

petition.

Specifilalty.

on

the

matter

of

grave

abuse

only.

It

cannot

go

beYond'

AccordinglY,thesplit3-2AmendedDecisiondated2t

November2oL4andResolutiondated28August20l5

upholdingrespond"n{,factualpropositionsandtherefore

reversing

the

RTC

Baguio

city,

Branch

7

and

60

judicial

finding

of

probable

cause

for

issuance

of

warrant

of

arrest

against

accused

l.urpondunt,

and

the

court

of

Appeals'

[SpecialrerrtrrDivision]3-0unanimousDecisiondated30

July

2013,

is

UNPROCEDURAL.

It

resolves

substantive

issuesinanimproperandinappropriatemanner'

divesting

and

tLipping

the

original

and

exclusive

jurisdiction

of

the

-triaicourt

to

hear,

try

and

decide

factual

issues.

II

THE

COURT

OF

APPEALS'

IFORMER

FOURTH

DIVISION

-

DIVISION

OF

FIVE]

MAJORITY

GRAVELY

ERRED

IN

REVERSING

THE

OCP-BAGUIO

CITY/DOJ'S

ADMINISTRATIVE

FINDING

OF

PROBABLE

CAUSE

AND

THE

RTC-

BAGUIO

CITY,

BRANCH

7

AND

60'5

DETERMINATION

OF

PROBAtsLE

CAUSE

35



FOR

ISSUANCE

OF

ARREST,

IN

THAT:

WARRANT

OF

IF

AT

ALL,

THE

DISPUTED

FACTUAL

ISSUES

HERE

OUGHT

TO

BE

ET?:

TRIED

AND

RESOLVED

FIRST

BY

THE

TRIAL

COURT,

NOT

YET

BY

THE

COURT

OF

APPEALS.

THE

FOLLOWING

ARE

THE

CONFLICTING

FACTUAL

PROPOSITIONS

OF

THE

PARTIES:

1.

RESPONDENT

CLAIMED

THAT

HIS

FATHER

DR.

VIRGILIO

CONSENTED

TO

HIS

TAKING

OF

WATER

AND

ELECTRICITY

FROM

UM'S

BPTI

TO

HIS

CTLL

BUILDING.

IN

CONTRA,

UM

DENIED

THE

SAME

ASSERTING

THAT

IT

WAS

HIGHLY

IM

PROBABLE,

IF

NOT

IMPOSSIBLE,

CONSIDERING

TI-IE

BREWING

ANIMOSITY

BETWEEN

RESPONDENT

AND

DR.

VIRGILIO

EVEN

PRIOR

TO

THE

TIME

OF

THE

SUBJECT

TAKING

IN

2AO7

UP

TO

DR.

VIRGILIO'S

DEATH

IN

2OOB.

In

its

assailed

Amended

Decision,

the

court

of

Appeals

[Fourth

Division

Division

of

Five]

seemed

to

have

supposed,albeiterroneously,thatrespondent,S.fatherDr.

virgilio

had

consented

to

his'taking

of

water

and

electricity

fro

[r

U

M's

BPTI

to

h

is

CTLL

Bu

ild

i

ng

,

viz

':

"The

fourth

element

of

the

above-

mentioned

crime,

i.e.,

that

it

be

done

without

the

owner's

consent,

is

absent

in

this

case.

Petitioner's

use

of

the

electricity

and water supply

of

BPTI

was

done

wittr

the

consent

and

imprimatur

of

his

father,

Virgilio,

who

was

at

that

time

the

maioiitY

stockholder

and

President

and

if'.ruirrnan

of

the

Board

of

Trustees

of

UM

which

in

turn

owns

BPTI'

36



The

peculiar

circumstances

of

this

case

permit

a

conclusion

that

Virgilio

was

given

an

aPParent

authoritY

bY

the

Board

of

Trustees

of

UM

to

giYe

such

consent

on

behalf of

the

latter'"66

Despiteprivatecomplain3ntUM'.pointedargumentin

its

motion

iot

reconsideration

against

such

erroneous

supposition,theCourtofAppeals[FormerFourthDivision-

DivisionofFive]didnotevenbothertoexplainthesamein

its

Resolution

OlteO

2B

Aug;ti

2015.

There,

it

nonchalantly

reiterated

its

say-so

finding:

"Petitioner's

use

of

the

electricity

and

water

supply

of

BPTI

was

with

the

consent

of

nis

fatner

who

was

at

that

time

the

mujotity

stockholder

and

President

and

Cfrairman

of

the

Board

of

Trustees

of

UM'

virfitio

Delos

Santos

gave

his

consent

to

his"

son

(herein

petitioner)

to

use

BPTI's

eleciricity

and

water

supply

in

2OO7

'

f

nereafter,

and

until

Virgilio's

death

in

ZOOA,

tfre

Board

of

Trustees

of

UM

did

not

object

to

or

repudiate

said

consent'"67

RECoRDSwoULDHoWEVERsHoWTHATFAR

FRoMBEINGASETTLEDFACTUALISSUE,

RESPoNDENT,SFACTUALALLEGATIoNTHATHIS

FATHERDR'VIRGILIoHADCoNSENTEDToHIS

TAKINGoFWATERANDELECTRICITY,WAS

POINTEDLY

CONTROVERTED

AND

DISPUTED

BY

UM'

In

its

amended

motion

for

reconsideration

of

the

ocP-

Baguio

City,s

Resolution

dated

29

July

2011,

UM

had

explicitly

contested

respondent's

aforesaid

allegation'

to

wit:

"More

on

the

issue

of

consent,

the

SinumPaang

SalaYsaY

executed

by

Electa

D'

Arevalo

(attached

to

the

noelo

[sic])

would

negate

any

such

cot

sent

nV

AttY.

Virgilio

de

los

Santos

to

itre

tapping

of

electricity

and

water

bY

AttY.

Ernesto

de

los

Santos.

Said

affiant

stated:

t'o

At

1r.

8,

Atrtrcx

"A"

hcrcof'.

t''

At

lr.

(r

Anncx

"A"- 1"

hcrcof

-1

I



'11.

Noong

MaY

3,

2003

siYa

(referring

to

Virgilio

de

los

Santos)

ay

mahospi[al

ulit

sa

kanyang

sakit

na

prostate

cancer

sa

Medical

Center

Manila.

Ako

uli

ang

nag-alaga

at

nabantay

sa

kanya.

Ang

bilin

sa

akin

ay

away

iyong

bibisita

hin

siya

ng

ka

nya

ng

,

asawa

at

mga

anak

na

sina

AttY'

Ernesto

de

los

Santos

at

Dr.

Cynthia

de

los

Santos

Chan'

Baka

siYa

raw

aY

mas

lalung

mamatay

kaysa

gagaling''

'9.

Sa

tuwing

ako

aY

inuutusan

ni

Dr.

Virgilio

de

los

Santos

na

bibili

ng

mga

prutas

sa

Binondo

o

ibang

lugar

ang

bilin

niya

sa

akin

ay

ako

lang

daw

ang

Aapat

bibili

ng

kanyang

mga

prutas

at

huwag

iutos

sa

iba

pati

ang

kanyang

mga

anak

dahil

baka

lasunin

daw

siya''

The

aforequoted

facts

would

show

the

estranged

relationship

of

Virgilio de

los

Santos

with

his

son

Ernesto

de

los

Santos

dating

back

2OO3

or

even

before.

With

this

seemingly

irreconcilable

estranged

relationship,

which

lasted

up

to

the

time

of

death

of

Virgilio

de

los

Santos,

would

anYbodY

in

his

right

mind

PlausiblY

conclude

that

Ernesto

de

los

Santos

can

get

the

consent

of

Virgilio

de los

Santos

to

the

utilization

and

taPPing

of

electricity

and

water

from

BPTI

and

diverting

it

to

CTLL

Building?

And

would

Virgilio

de

los

Santos

instruct

Josephine

Pinera

and

Yolanda

Calanza,

who

are

mere

emPloYees

of

U,M.

assigned

then

at

BPTI,

to

extend

suPPort

to

Ernesto

de

los

Santos

to

include his electrical

and

water

needs

when

Ernesto

de

los

Santos

was

then

the

manager

and

operator

of

BPTI

and

these

two

(Penera and

Calanza)

were

his

mere

subordinates

who

would

Kow-tow

3B



to

whatever

he

(Ernesto)

wants

to

do

there?

It

would

be

very

f

unnY

and

--

indeed

ridiculous

for

the

subordinates

to

be

authorizing

their

boss

to

tap

electricitY

and

water'

ihi;

is

reailY

against

the

everYdaY

exPerience

of

mankind

and

belongs

to

the

miraculous'

Furthermore,

when

Virgilio

de

los

Santos

got

sick

alreadY

he

refused

sine

then

to

see

Ernesto

de

los

Santos

and

CYnthia

de

los

Santos-Chan

'

The

affidavit

of

Maria

Corazon

Ramona

L'

de

los

Santos

on

this

score

states:

'It

was

onlY

when

mY

father

was

sick

that

he

refused

to

see

them'

He

said

that

he

might

die

early

because

of

the

stress

of

seeing

mY

brother

and

sister.'

(Se

Rollo,

Affidavit

of

Ramona

Delos Santos,

par'

))""uu

(Emphasis

in

bold

suPPlied)

IN

FACT,

in

its

comment

to

respondent,s

CA

petition

for

certiorari,

Utr4

had

categorically

asserted:

"Furthermore,

it

is

extant

from

the

affidavits

executed

by

Electa

D'

Arevalo

and

Ma.

Corazon

Ramona

Ll'

Delos

Santosthattherelationshipofpetitioner

and

his

deceased

father

had

already

soured

prior

to

the

death

of

the

latter'

The

alleged

consent

given

-

bY

petitioner'J

deceased

father

is

therefore

iiigtrly

dubious.

In

the

natural

order

of

things,

persons

whose

relationship

is

estringed

would

necessarily

refuse

.to

give

c6nsent

or

extend

benefit

to

the

ottrer.

Interestingly,

petitioner

had failed

to

refute,

hence

deemed

to

have

admitted

such

fact."6e

t'*

At

pp.

(r-7,

Anncx

"E"

hclcof.

t"'

At

pp.

22-23,

Anncx

"S"

lrcrcol.

39



IFATALL,FARFROMBEINGSETTLEDASTHECoURT

oFAPPEALS,IFoRMERTounTTTDIVISIoNDIVISIoNoF

FrvEl

un:onliy

HAD

rnnorrrEouslY

suPPosED

IT

TO

BE'

WHETHERoRNoTDR.vrnclr-ToHADCoNSENTEDTo

RESPoNDENT,STAKINGoFWATERANDELECTRICITY,IS

CLEARLYAHoTLYDISPUTEDANDCoNTESTED

FACTUALIssUEnesoIvABLEoNLYVIAFULLBLoWN

TRIAL.

2.

THE

COURT

OF

APPEALS'

IFORMER

FOURTH

DIVISION

blvtstorv

oF

FIVEI

MA]ORITY'S

SWEEPING

CONCLUSION

THAT

THE

UM

BOARD

HAD

THEREBY

IMPLIEDLY

AGREED

OR

ACQUIESCED,

IS

HIGHLY

TruNPPNOPRIATE

AS

THE

TRIAL

COURT

HAS

NOT

FACTUALLY

RULED

THEREON

YET.

TheCourtofAppeals,[FourthDivisionDivisionof

Fivel

majority

further

assever-atea

in

its Amended

Decision:

"Virgilio,

with

the

acquiescence.

of

the

goard

of

Trustees

of

UM,

gave

hLt

consent

to

the

petitioner

to

use

BPTI's

electricity

and

water

supply

in

2OA7

'-

Thereafter,

and

until

the

death

of

Virgilio

in

2008,

the

Board

of

Trustees

of

Ufvt OiO

not

object

to

or

repudiate

the

said

act

of

Virgilio.

In

other

words,

the

Board

did

not

Put

an

end

to

this

arrangement

which

could

give

it

sufficient

ground

to

file

a

criminal

case

against

the

petitioner

of

the

latter

cSntinued

to

use

that

water

suPPIY

despite

the

clear

prohibition

by

the

Board

of

Trustees

of

the

university'

It

was

only

in

2011,

when

petitioner

and

Cynthia

opposed

the

Probate

pioceedings

of

the

estate

of

their

father

initiated

ny

tneir

sister

Ramon

[sic]

and

when

there

was

alreadY

a

serious

corporate

squabble

between

and

among



the

members

of

the

Board

of

Trustees

of

UM

tfrit

a

complaint

for

qualified

theft

was

filed

against

the

petitioner

as

We

note

in

this

case'

If

the

Board of

Trustees

of

UM

trulY

believedthatVirgiliohadnoauthorityto

give

consent

on

lts

behalf

it

could

have

overturnedandnullifiedhisdecisionto

allowthepetitionertousetheelectricity

and

water

supply

of

its

property-

in

Baguio

City

from

its

inception'

The

fact

that

the

Board

of

Trustees

of

UM

did

not

prevent

the

petitioner

to

continue

to

openly

use

its

electricity

and

water

trppiy

during

the

lifetime

of

Virgilio'

and

even'immediatelythereafter'clearly

manifeststhatitacquiescedtoVirgilio,s

giving

of

consent

to

the

petitioner'"70

In

its

assailed

Resolution

dated

28

August

2015,

the

Court

of

Appeals'

fFormer

Fourth

Division

-

Division

of

Five]

majoritY

then

merelY

rePeated:

"The

Board

of

Trustees

of

UM

could

haveeasilyoverruledandnullifiedVirgilio,s

decision

to

allow

the

petitioner

to

use

its

electricity

and

water

supply

in

Baguio

litV'

The

fact

that

the

Board

of

Trustees

of

UM

did

not

prevent

the

petitioner

to

continue

to

openiy

use

its

electricity

and

water

,uppiy

during

the

lifetime

of

Virgilio,

and

even

lmmediately

thereafter

lasting

for

four

y"urr,

clearly

manifests

that

it

acquiesced

[o

Virgilio's

giving

of

consent

to

the

petitioner.

It

was

only

after

a

serious

iamity/corporate

squabble

that

happened

between

and

among

the

corporate

directors

that

the

criminal

case

was

filed

against

petitioner.

It

is

well-entrenched

that

if

a

corporation knowingly

permits

its

officert

or

any

other

agent,

to

perform

acts

within

the

scope

of

an

apparent

authority,

holding

him

out

to

the

pubiic as

possessing

power

to

do

those

acts,

the

corporation

will,

as

against

'"

A,

pp.

[i-9,

Anncx

"A"

lrcrcot'

4l



any

person

who

has

dealt

in

good

faith

with

the

corporation

through

such

.

agent'

be

estopped

from

denying

such

authority'

APParent

authoritY

is

derived

not

merely-iro*

ptuttice'

Its

existence

may

be

ascertlined

through

1)

the

general

manner

in

which

the

corporation

holds

out

an

officer

or

agent

as

having

the

power

to

act'

or

in

other

-words,

the

apparent

authority

to

act

in

general,

with

which

it

clothes

him;

or

Z)

th;

acquiescence

in

his

acts

of

a

Particular

nature,

with

actual

or

constiuctive

knowledge

thereof'

within

or

beyond

the

scope

of

his

ordinary

powers'

Virgilio's

apparent

authority

to

juggte

tl"

funls

of

u'M

with

his

own

funds

is

clearly

demonstrated

bY

UM's

own

attached

evidence,

to

wit"

"They

failed

to

appreciate

the

fact

that

it

was

even

mY

father

who

shouldered

his

grandchildren's

expense.

This

was

evidenced

bY

a

certification issued

by

the

President

and

Chief

of

Academic

Officer'

copy

of

which

is

attached

hereto

as

Annex

"8"

attesting

that

mY

brother's

second

mistresJ

has

been

receiving

monthly

allowance

from

the

University

in

the

amount

of

Nine

Thousand

Eight

Hundred

TwentY

Five

Pesos'

xxx"

By

giving

Virgilio

an

aPParent

authority,

UM's-

Board

of

Trustees

cannot

nowdenyandrepudiatethelegaleffectof

Virgilio,sconsentgiventothepetitionerto

use

the

electricity

and

water

supply

of

BPTI."71

Again,theCourtofAppeals,IFor.T"'FourthDivision

Division

of

Fivel

majority

ha'd

accepted

hook,

line

and

sinker

respondent's

uit"guiiont

in

his

CA

certiorari

petition

and

motion

for

reconsideration.

IT

TREATED,

ALBEIT

UNPROCEDURALLY,

RESPONDENT,S

ALLEGATIONS

AS

UNDISPUTED

GOSPEL

TRUTHS.

7'

At

1r1.,.

(r-7.

Atrrrcx

"A-1"

ltcrcof

42



SUCH

ALLEGATIONS

WERE

HOWEVER

CATEGORICALLY

CONTRADICTED

BY

UM'

PER

THE

SUFFICIENTDoCUMENTARYANDCoNTRoVERTING

AFFIDAVITEVIDENCESUBMITTEDBYUMDURING

PRELIMINARY

INVESTIGATIoN,

PLUS

RESPoNDENT,S

OWN

CONCLUSIVE

ADMISSIONS

IN

HIS

AFFIDAVIT'

IT

IS

WELL

ESTABLISHED

THAT:

(i)

RESPONDENT

HAD

TAKEN

WATER

AND

ELECTRICITY

FROM

UM'S

BPTI

TO

HIS

CTLL

BUILDING;

(ii)

THrS

TAKTNG

WAS

WTTHOUT

THE

CONSENT

OF THE UM

BOARD

OF

TRUSTEES,

AS

IN

FACT,

THEY

HAD

NO

KNOWLEDGE

NOR

HAD

ACQUIESCED

TO

RESPONDENT,S

TAKING;

AND

(iii) RESPONDENT

wAs

MANAGER

OF

UM,S

THE

GENERAL

BPTI

AND

AT

THE

oFFTCER/STOCKHOLDER

OF

UM

TIME

OF

SAID

TAKING.

THEsE

SHoULD

HAVE

BEEN

ENOUGH

VIS-A-VIS

THE

DETERMINATION

OF

PROBABLE

CAUSE

FOR

ISSUANCE

OF

WARRANT

OF

ARREST

AGAINST

RESPONDENT

FOR

QUALIFIED

THEFT'

woRSE,

the

court

of

Appeals'[Former

Fourth

Division

-

Division

of

Fivel

majority's'f'actual

findings

are

even

bereft

of

any

factuat

and

legil

bases.

It

bears

stressing

that:

1)THEUMBoARDoFTRUSTEESHAD

DISCOVERED

RESPONDENT

SURREPTITIOUS

TAKING

ONLY

SOMETIME

IN

JUNE

aOLL,

FOR

WHICH

THEY

IMMEDIATELV

RESOLVED

TO

INITIATE

A

QUALIFIED

THEFT

COMPLAINT

AGAINST

RESPONDENT

IN

]ULY

2c-LL72.

2)

RESPONDENT

WAS

ABLE

TO

CONCEAL

THIS

ILLEGALTAKINGANDTHEFToFWATERAND

ELECTRICITY

AS

HE

WAS

THE

GENERAL

MANAGER

OF

UM'S

BPTI

WHEN

THE

SUBJECT

ILLEGAL

WATER

AND

ttrtrbctrtPrcsiclcntDr..EntilyD.DcLconanrlPolicarpitrM.Lacsa,arrtlUM's

Corp.rirtc

Sccrctary

Atty.

Dios(la(lo

c.

Marlrid's

Ccrtitlcation,

attachcd

ns

Atrncxcs

to

UM's

CornPlaint'

Anncx

"B"

hcrcol-

43



ELECTRICALcoNNEcTIoNsWERETAPPEDFRoMUM,S

BPTIToRESPoNDENT,s-crulBUILDINGIN2ooT

UNTIL

NTSPONDENT

WNb

REMOVED

AS

SUCH

ON

15

luNE

2011'

3)FARFRoMBEING*oPENLY,,ASTHEcoURT

oF

APPEALS',

[FOURTH

DrvrsroN

DrvrsroN

oF

FIVE]MAJoRITYHADsPEcIoUsLYCHARACTERIZED

RESPONDENT',STnTTTc,THEPTCTURESoFTHE

SUBJECT

ILLEGAL

WATER

AND

ELECTRIC

coNNEcTIoNsWoULDsHoWTHATTHESAMEWERE

CONSPICUOUSLY

HIDDEN

FROM

THE

PUBLIC'

INCLUDING

BPTI'S

EMPLOYEES'

TO

AVOID

DETECTION.,,

ApartfrombeingPRoCEDURALLYINAPPRoPRIATE,

the

Court

of

npp"uls;

;Former

Fourth

Division

Division

of

Fivel

majority's

factual

findings

even

ahead

of

trial

that

the

UM

Board

of

Trustees

had

imItieOly

agreed

or

acquiesced

to

respondent's

subject

taking,

is

BELIED

BY

THE

RECORDS'

3.

CONTRARY

TO

THE

COURT

OF

APPEALS'

IFORMER

FOURTH

DIVISION

-

DIVISION

OF

FIVEI

MA]ORITY,S

THEORY,

SPECIOUS

RESPONDENT'S

ALLEGATIONS

ON

DR.

VIRGILIO'S

ALLEGED

CONSENT

AND

THE

UM

BOARD'S

IMPLIED

ACQUIESCENCE

ARE

HIGHLY

DISPUTED

FACTUAL

MATTERS

THAT

CAN

ON

LY

BE

VENTILATED

AND

RESOLVED

IN

A

FULL

BLOWN

TRIAL

BEFORE

THE

TRIAL

COURT'

A

F)RTI)RI,

contrary

to

the

Court

of

Appeals,

[Former

Fou

rth

Division

Division

of

Fivel

majority's

sweeping

conclusion,

the

alleged

consent

of

Dr'

Virgilio

to

respondent's

taking

5nO

the

correlative

UM

Board

of

Trustees,

purporteJ

implied

acquiescence

therefor,

are

highly

disputed

factual

matters

that

can

only

be

ventilated

and

resolved

in

a

full

blown

trial

before

the

7r

lrl"asc

sec

A,ucxcs

"5","5-A" antl

"5-B",

UM's

DOJ

C.ttltlrcttt,

Anlrcx

"'l"

hcrcot''

44



trial

court.

DefinitelY,

the

Court

of

l\ppeals

I

Former

Fourth

oivision

-

pivision

or

Fivel

cannot

put'

finis

to

such

controversial

factual

issues

on

a

mere

petition

for

certiorari,

rt

is

contriry

to

the

existing

procedural

rules

and

settled iurisPrudence'

Rightlyso,initsorderdatedOTDecember20t2,the

RTC-Baguio

City,

Branch

60

had

concluded:

"xxx

There

are

two

kinds

of

determination

of

Probable

cause;

executive

and

iudicial'

In

the

case

at

bar,

probable

cause

against

the

accused

tras

already

been

determined

under

both

insta

nces

'

The

contentions

of

th;

accused

in

his

Present

motion

are

evidentiary

in

nature'

The

same

are

better

afPreciated

in

a

full-

blowntrialorinamoreappropriate.

motion.

The

Presence

or

absence

of

the

elemenis

of

the

crime

is

evidentiary

in

nature

and

is

matter

of

defense

that

may be

Passed

uPon

on

a

f

ull-blown

trial

on

the

merits.

n74

TEmphasis

in

bold

supplied)

Also,initsDecisiondated30July2013,IhqCourtof

Appeals

[Special

Tenth

Division]

had

correctly

ruled:

"xxx

With

Ernesto's

admission,

the

Court

agrees

that

it

is

probable

that

the

crime

-of

qualified

theft

has

been

committed

and

that

Ernesto

is

probably

guilty thereof.

To

reiterate,

We

are

not

here

concerned

with

the

finding

as

to

whether

all

the

elements

of

qualified

theft

have

been

sufficientlY

Proven

to

warrant

a

conviction,

because

to

require

the

same

would

alreadY

be

beYond

the

scope

of

the

prosecutor

and

the

trial

-

court's

task

of

determining

probable

cause,

as

these

are

matters

which

'u

At

p.

2, Anncx

"Q"

hclcof.

45



XXX

(EmPhasis

in

4.

AS

A

MATTER

OF

CAUSE,

AS

RESPONDENT'S

XXX

bold

suPPlied)

PROBABLE

BETWEEN

DEFENSIVE

inafull

XXX,,

ca

use, as

between

UM's

contra,

the

RTC

-

are

ProPerlY

addressed

blown

trial.Ts

CLAIM

VERSUS

UM'S

CONTRA,

THE

TRIAL

COURTS'

FINDING

OF

PROBABLE

CAUSE

MUST

PREVAIL.

Settledistherulethatindeterminingtheexistenceof

probableCause,certaintyofguiltisnotrequired.Itis

sufficient

that

the

pieces

of

evidence

as

presented

would

excite

a

reasonanie

belief

that

the

crime

charged

is

committed

and

that

the

respondent

is

probably

guilty

thereof.

In

Metropolitan

Bank

&

Trust

company

vs'

Ai;r*ie;7u,

this

Honorable

court

thus

ruled:

"x x x

Probable

cause

is

a

reasonable

ground

of

presumption

that

a

matter

is'

or

;;;t

b€,

well

founded

on

such

a

state

of

facis

in

the

mind

of

the

prosecutor

.

as

would

lead

a

person

of

ordinary

caution

and

prudence

to

believe,

or

entertain

an

honest

or

strong

suspicion,

that

a

thing

is

so.

The

term

dbes

not

mean

"actual

or

positive

cause"

nor

does

it

imPort

absolute

certainty.

It

is

merely

based

on

opinion

and

reasonable

belief'

Thus'

i

finaing

of

probable

cause

does

not

require

an

inquiry

whether

there

is

sufficient

evidence

to

Procure

conviction.

It

is

enough

that

it

is

believed

that

the

act

or

omission

complained

of

constitutes

the

offense

chargea."

(Emphasis

in

bold

supplied)

As

a

matter

of

Probable

respondent's

defensive

claim

versus

]ltt

',1;,^i,iti;;';)ffii200e;

5ri4

scRA

63r,

(,40-(,41

citi'gpitttpitt,s.

sutrttisutiltnv,r,

G.R'

No'

l0leTtt'

07

April

1993;

221

SCRA

349'

360'

46



BaguioCity,BranchTand60,sfindingofprobableCause

must

Prevail.

As

eloquently

pointed

out

by

CA

lustice

Marlene

Gonzales-Sison

in

her

diisenting

opinion

to

the

assailed

Amended

Petition:

"I

must

emPhasize

that

PETITIONER

ACTUALLY

ADMITTED

THAT

WHILE

SERVING

AS

AN

OFFICER

OF

U.M.

AND

MANAGER

AND

OPERATOR

OF

BPTI/

HE

CAUSED

THE

TAPPING

OF

BPTI'S

WATER

AND

ELECTRICITY

TO

BE

USED

IN

THE

CONSTRUCTION

OF

HIS

BUILDING.

HE

ALSO

ADMITTED

THAT

THIS

WAS

WITHOUT

ANY

AUTHORIZATION

FROM

U'M"S

BOARD

OF

TRUSTEES'

In

mY

oPinion,

SUCH

ADMISSION

MUST

LEI\D

TO

THE

CONCLUSION

THAT

PETITIONER

PROBABLY

COMMITTED

QUALIFIED

THEFT'

THE

ACTS

DETAILEO

TN

THE

ADMISSION

COMPLETES

ALL

THE

ELEMENTS

OF

QUALIFIED

THEFT,

AND

SUPPORTS

fnr

ALLEGATToNS

oF

THE

PRTvATE

RESPONDENT,"

Petitioner's

admission

admits

the

followingl

first,

there

is

a

taking

of

personJl

ProPertY,

that

-

is

electricitY

and

water;

second,

that

said

personal

property

belonging

to

another,

U.M.:

third,

Petitioner

tapped

into

those

resources

with

intent

to

gain,

i.e.,

allow

him

to

avoid

incurring

costs

for

such

water

and

electricitY,

while

using

the

same;

fourth,

that

there

was

no

consent

bY

the

owner,

in this

case,

private

respondent

U.M'

acting

ih.ongh

its

board

of

trustees,

to

the

taking;

fifth,

that

Petitioner

accomPlished

the

deed

without

resort

to

violence

or

force

uPon

47



things,

because

allegedlYr-

hit-

tapplng

was

with

the

Permission

of

tri"'t"tE

father;

and

sixth,

that

th-ere

was

grave

abuse

of

discretion'

since, during

the time that

he

utilized

BPTI's

water

and

electricity'

he

was

occuPYing

executive

positions

in

the

dePrived

owner-

corporation,

[J.M.'

Petitioner

qualifies

his

admission

by

his

defense

that

his

late

father

permitted

him

to

taP

into

BPTI'

He

presents

witnesses

which

maY

corroborate

the

grant

of

authority'

HOWEVER,

AT

THIS

STAGE

OF

THE

PROCEEDTNGS,

rT

MUST

BE

RECALLED,

rs

oNLY

CONCERNED

WITH

THE

DETERMINATION

OF

PROBABLE

CAUSE'

IT

HAS

ALREADY

BEEN

HELD

THAT

DURING

THIS

STATE,

IT

IS

INAPPROPRIATE

TO

RULE

ON

THE

CREDIBILITY

OF

STATEMENTS

COMING

FROM

THE

ACCUSED

AND

HIS

WITNESSES'

WHICH

APPROPRIATELY

LIES

WITHIN

THE

PROVINCE

OF

TRIAL

PROPER.

MOREOEVER,

EVEN

IF

THESE

WITNESSES

ARE

CREDIBLE'

THE

HYPOTHETICAL

TRUTH

OF

THEIR

STATEMENTS

WOULD

STILL

NOT

CHANGE

THE

FACT

THAT

fJ.M.,

AS

A

CORPORATE

ENTITY,

NEVER

CONSENTED

TO

ALLOW

PETITIONER

TO

TAP

INTO

BPTI'S

RESOURCES.

IT

IS

BASIS

THAT

A

CORPORATION

HAS

A

PERSONALITY

SEPARATE

AND

DISTINCT

FROM

ITS

OFFICERS

AND

STOCKHOLDERS.

Petitioner

buttresses

his

defense

by

alleging

that

private

respondent

U'M'

is

actually

a

closely-held

corporation

run

by

his

family,

such

that

it

can

be

bound

by

the

actions

of

his

later,

which

is

considered

the

head

of

the

familY'

Petitioner

likewise

laments

that

the

48



prosecution

never

even

reviewed

the

reCords

of

Private

resPondent,

its

history,

and

its

unusual

arrangement

to

remove

any

doubt

that

it

was

a

close

corporation.

Again,

with

due

resPect

to

-t 9

majorily,

I

find

THAT

TH

ESE

oeirrubes

cANNor

BE

vALTDATED

AT

THrS

STATE.

ONCE

MORE,

THEY

ARE

ALREADY

EVIDENTIARY

IN

NATURE;

SUCH

STATEMENTS

REQUIRE

THE

PRESENTATION

OF

WTiTUESSES

WHO

MAY TESTIFY

ON

HOW

U.M.

OPERATES,

AND

REQUIRE

AS

WELL

THE

ASSESSMENT

OF

DOCUMENTARY

EVIDENCE

ON

ITS

NATURE

AS

A

CORPORATION.

EVIDENTIARY

MATTERS

MUST

BE

PRESENTED

AND

HEARD

DURING

TRIAL.

THE

ESSENTIAL

DIFFERENCE

OF

PROCEEDINGS

TO

DETERMINE

PROBABLE

CAUSE

AND

TRIAL

PROPER,

TO

MY

MIND,

SHOULD

ALSO

BAR

US

FROM

DETERMINING

BASED

ON

EVIDENCE

THAT

PETITIONER

HAD

NO

INTENT

TO

STEAL

(GIVEN

HIS

FATHER,S

PERMTSSToN)

AND

THAT

HIS

FATHER

WAS

EXTRAORDINARY

GENEROUS

TO HIS

CHILDREN.

UNFORTUNATELY,

THESE

DEFENSES

REST

ON

A

CONSIDERATION

OF

FACTUAL

MATTERS

AND

THE

TESTIMONIES

OF

WITNESSES,

WHICH

AGAIN

ARE

ALL

PROPER

FOR

TRIAL.

"77

(Emphasis

in

capital

and

bold

suPPlied)

This

was

amply

supported

by

cA

Justice

Manuel

M'

Barrios

in

his

sepaiate

dissenting

opinion

to

the

assailed

Amended

Decision

elucidating:

TrAt

1r1-,.

9-l 1,

CA

Justicc

Gonzirlcs-Sison's

Dissorlting

Opinion,

Attttcx

"A"

hcreol

49



*It

is

mY

view

that

resPondent

judge

did

not

act

arbitrarily

in

finding

the

existence

of

probable

cause

since

it

ii

conceOeO

fact

that

petitioner

-

while

anofficerofU.M.andmanager/operalrlr

of

BPTI

taPPed

and

utilized

BPTI's

water

and

electricity

for

the

construction

of

his

own

building

and

that

he

admittedly

gained

material

benefit

therefrom.

In-dubitably,

the

elements

of

Qrulified

Theft

can

be

deduced

from

tirese

admitted

facts,

and

certainly,

to

find

the

existence

of

probable

based

thereon cannot

be

considered

abuse of

discretiofl,

ffiuch

less,

grave'

THE

DEFENSE

OF

PETITIONER

THAT

HE

ACTED

WITH

THE

CONFORMITY

OF

HIS

LATE

FATHER

WHO

WAS

THEN

MAJORITY

SHAREHOLDER

OF

COMPLAINANT

CORPORATION

IS

A

DISPUTED

FI\CT,

AND

RESPONDENT

JUDGE

woulD

NOT

YET

BE

rN

A

POSrrro-N

TO

CONSIDER

THE

SAM

7174

(Emphasis

in

capital

and

bold

supplied)

RE:

THE

COURT

OF

APPEALS'

IFoRMER

FOURTH

DrvrsroN

brvrsroru

oF

FrvEI

MAJORITY'S

CONCLUSIONS

ON

IMPLIED

AUTHORITY,

BONA

FIDE

BELIEF

OR

GOOD

FAITH,

AND

THE

ABSENCE

OF

THE

ELEMENT

OF

INTENT

TO

GAIN

THAT

WERE

USED

TO

OVERTURN

THE

TRIAL

COURTS'

FINDING

OF

ARE

PROBABLE

CAUSE,

INAPPROPRII\TE

IN

THE

CERZORAR.T

PETITION.

THE

COURT

OF

APPEALS'

IFORMER

FOURTH

DIVISION

_

DIVISION

OF

FIVE]

"

At

p. 2,

CA .ltrsticc

Bat'rios'

Disscntiltg

Opinion,

Anncx

"A"

hcrcol'

50



MAJORITY'S

EXCULPATING

CONCLUSIONS

SOLELY

UPHOLDING

RESPONDENT'S

DEFENSES

OF

DR.

VIRGILIO'S

PURPORTED

CONSENT

TO

THE

TAKING

,

BONA

FIDE

BELIEF

OR

GOOD

FAITH,

AND

LACK

OF

INTENT

TO

GAIN,

ARE

HIGHLY

INAPPROPRIATE

IN

A

CERTIORARI

PETITION,

CONSIDERING

THAT:

In

the

first

assailed

Amended

Decision,

the

court

of

Appeals'

[Fourth

Division

-

Division

of

Five]

majority

further

opined:

"The

third

element,

i.€.,

that

the

saidtakingbedonewithintenttogain

is

likewise

absent

in

this

case'

Even

assumingarguendothatVirgiliowasnot

dulY

auttroiized

bY

the

Board

of

TrusteesofUMtogiveitsconsenttothe

petitioner

and

the

latter

erred

when

he

solelyreliedonhisfather'sconsent

withoutfurthersecuringtheauthority

fromtherealoWneroftheelectricity

and

water

suPPIY

will

not

make

him

culpableofthecrimeofqualifiedtheft

because

he

was

acting

with

a

color

of

authority

or

a

semblance

of

right

to

do

such

act."7e

The

Court

of

Appeals'

[Former

Fourth-Division

of

Five]

majority

repeated

in

the

second assailed Resolution

dated

28

hugust

2015

the

foregoing

erroneous

thesis,

saying:

"For

a

charge

of

crime

to

Prosper,

the

accused

must

have

been

shown

to

have

acted

with

a

genuine

criminal

intent.

If

he

was

acting

under

a

bona

fide

belief

that

he

has

a

claim

or

title

to

the

thing

allegedly

stolen,

the

criminal

intent

is

missing.

Petitioner's

claim

of

right

on

the

basis

of

the

permission

given

by

his

'''

Al

1r.

l().

Anrrcx

"A"

hclcol'.

5l



father

negates

criminal

intent

on

his

part. He

openly

used

BPTI's

electricity

and

water

supply

under

the

bona

fide

belief

that

he

was

allowed

and

authorized

bY

his

father

to

use

the

same.

His

father

owned

majority

of

the

shares

of

stocks

of

UM

and

was

at

that

timeitsPresidentandChairmanofthe

Board.

He

practically

controlled

and

ran

thebusinessaffairsoftheuniversity.As

explainedabove,theBoardofTrustees

had

given Virgilio

an

apparent

authority

to

d;

so

as

shown

bY

the

fact

that

it

allowedVirgiliototreatthefinancesof

UM

as

if

theY

were

his

own

Personal

property.

It

did

not

revoke

this

authority

while

Virgilio

was

still

alive

or

even

immediatelythereafter.Theallegation

therefore

that

Petitioner

had

the

intentiontodepriveUMofitspersonal

property

is

negated

by

the

fact

that

he

relied

in

good

faith

on

his

father's

authority

to

use

BPTI's

electricity

and

water

suPPlY".Bo

WE

BEG

TO

DISAGREE.

The

court

of

Appeals'

IFormer

Fourth

Division

Division

of

Fivel

maiority's

exculpating

conclusions

solely

upholding

1."rpond"nrt

defenses

of

Dr.

Virgilio's

purported

consent

to

the

taking

,

bona

fide

belief

or

good

faith,

and

lack

of

intent

to

gain

are

inappropriate

in

a

certiorari

petition,

considering

that:

5.

THE

OFFICE

OF

CERTIORARI

IS

MERELY

TO

DETERMINE

WHETHER

OR

NOT

THE

TRIAL

COURT'S

FI

N

DING

OF

PROBABLE

CAUSE

HAS

FACTUAL

AND

LEGAL

BASES.

IT

IS

NOT

WHETHER

RESPONDENT'S

CLAIM

VERSUS

THAT

OF

UM

IS

CORRECT,

t"

At

1',p.

7-tl,

Anncx

"A-1"

hercot

52



WHICH

CAN

ONLY

BE

RESOLVED

BY

THE

TRIAL

COURT

IN

A

FULL

BLOWN

TRIAL.

It

is

well

settled

that

the

office

of

certiorari

is

merely

to

determine

whether

the

court,

body

or

tribunal

has

gravely

abused

its

discretion,

amounting

to

lack

or

in

excess

of

jurisdiction, in

issuing

its

assailed

order

or

resolution'

Aotlv ,

in

Brito

vs.

office

of

the

Deputy

ombudsman

ror

ti)iiur,

this

Honorable

Court

had

categorically

ruled:

"In

cert

iorari

proceedings

under

Rule

65

of

the

Rules

of

Court,

the

inquirY

is

limited

essentiallY

to

wlrether

or

not

the

Public

respondent

acted

without

or

in

excess

of

its

jurisdiction or

with

grave abuse

of

discretion'

A

tribunal,

board

or

officer

acts

without iurisdiction

if

it/

he

does

not

have

tha

legal

Power

to

determine

the

case.

There

is

excess

of

jurisdiction

where,

being

clothed

with

the

Power

to

determine

the

case,

the

tribunal,

board

or

officer

overstePs

its/his

authoritY

as

determined

bY

law'

And

there

is

grave

abuse

of

discretion

where

the

tribunal,

board

or

officer

acts

in

a

capricious,

whimsical,

arbitrary

or

desPotic

manner

in

the

exercise

of

his

judgment

as

to

be

said

to

be

"quiralent

to

lack

of

jurisdiction"'

(EmPhasis

in

bold

suPPlied)

In

the

same

vein,

in

Chan

vS,

Cottrt

of

Appealsu',

this

Honorable Court

had

amply

elucidated:

"x x

x

in

an

action

for

certiorari,

the

Primordial

task

of

the

Court

is

to

ascertain

whether

the

lower

court

as

a

8r

G.R.

No.

li35l2.l0

Juty

2007;

527

scRA

224,229,

8r

G.R.

No. l5()922.2tt

April

201(r;

451

scltA

502,

515-516.

53



quasi-iudicial

body

acted

with

grave

abuse

of

discretion

amounting

to

excess

or

lack

of

jurisdiction

in

the

exercise

of

its

judgment, such

that

the

act was done

in

a

caPricious'

whimsical,

arbitrarY or

desPotic

manner.Inapetitionforcertiorari'the

jurisdiction

of

the

appellate

court

is

narrow

in

scope'

It

is

limited

to

resolving

only

errors

of

jurisdiction'

It

is

not

to

itray

at

will

and

resolve

questions

or

issues

beyond

its

competence'

such

as

an

error

of

judgment which

is

defined

as

one

in

wtriih

ftre

court

or

quasi-judicial

body may

commit

in

the

exercise

of

its

jurisdiction.Anerrorofjurisdictionisone

where

the

acts

complained

of

were

issued

withoutorinexcessofjurisdiction.Thereis

excessofjurisdictionwherethecourtor

quasi-judicial

body,

being

clothed

with

the

po*"ito

determine

the

case,

oversteps

its

authority

as

declared

by

law"'

(Emphasis

in

bold

suPPtied)

Thus,

the

crux

of

respondent's

CA

certiorari petition

was

merely

to

determine

whether

or

not

the

RTC

-

Baguio

city,

Branch

7

and

60

gravely abused

their

discretion

in

finding

probable

cause

against

accused-respondent

for

Qualified

Thcft.

NOTHING

IVONT

NOTHING

LESS'

It

bChOOVCS

AN

inquiry

only

as

to

the

sufficiency

of

the

factual

and

legal

bases

of

the

trial

courts'finding

of

probable

cause.

clearly,

it

was

beyond

the

ambit

of

respondent's

cA

certiorari

petition

to

determine

whether

his

claim

versus

that

of

uM

is

correct,

as

to

call

the

application

of

weight

of

evidence

and

credibility

of

witness.

If

at

all,

this

matter

can

only

be

addressed

by

the

trial

court

in

a

full

blown

trial.

6.

WITHOUT

ANY

ABUSE,

ALONE

GRAVE,

THE

COURTS'

FINDING

PROBABLE

CAUSE

IS

G

ROU

N

DED

U

PON

FOLLOWING:

LET

TRIAL

OF

WELL

THE

54



AS

CONCLUSIVELY

ADMITTED

BY

HIM

IN

HIS

COUNTER-

AFFIDAVIT,

RESPONDENT

HAD

CAUSED

TH

E

TAPPING

OF

AN D

DIVERTED

WATER

AND

ELECTRICITY

FROM

UM'S

BPTI

TO

HIS

CTLL

BUILDING.

RESPONDENT

HAD

TAKEN

WATER

AND

ELECTRICITY

FROM

UM'S

BPTI

WITHOUT

THE

CONSENT

OF

THE

UM

BOARD.

RESPONDENT'S

DEFENSE

THAT

HE

TOOK

WATER

AND

ELECTRICITY

WITH

TH

E

CONSENT

OF

HIS

*DECEASED"

FATHER

DR.

VIRGILIO,

IS

FOREVER

BARRED.

D.

RESPONDENT'S

DEFENSE

OF

LACK

OF

INTENT

TO

STEAL

IS

EVIDENTIARY

IN

CHARACTER

AND

SHOULD

BE

BETTER

VENTILATED

AND

HEARD

IN

A

FULL

BLOWN

TRIAL,

In

order

that

a

person

may

be

held

liable for

Qualified

Theft,

the

following

elements

must

concur:

a.

There

must

be

a

taking

of

personal

property;

b.

That

the

said

property

belongs

to

another;

c.

That

the

taking

be

done

with

intent

to

gain;

d.

That

it be

done

without

the

owner's

consent;

e.

That

it

be

accomplished

without

the

use

of

violence

or

intimidation

against persons,

nor

of

force

upon

things;

and

o2

f.

That

it be

done

with

grave

abuse

of

confidence.u'

s3

People

vs.

Puig,G.l{.

Nos.

173(t54-7(t5.28

August

2008;

563

SCRA

5(r4'

tt70

55

A.

B.

C.



HERE,

the

above

elements

of

Qualified

Theft

are

all

present:

Astothefirstrequisite,withrespecttotleelement

of

"taking",

thffia

emphatically

affirmed

and

:^ 1.

'l.r

;"ffi"i

',r.lra

respondent

instructed

him

sometime

in

July

2007

to

use

the

electric

current

of

BPTI

for

the

bail

cutter,

bender,

and

ior

welding

because

at

that

time

respondent

was

constructing

his

GTTL

Building'

Lacsa

also

affirmed

and

confirmed

that

-*hun

the

first

floor

of

CTTL

building

was

finished,

,"r[onO"nt

ordered

him

to

make

an

electrical

connection

coming

from

BPTI

going

to

the

basement

.of

crrl

Building

which

6"

obeyed;

-

after

making

the

.electrical

connection,

the

place

of

work was

transferred

to

the

basement

of

the

br1_

building

and

there

the

ball

cutting,

bending

and

welding

using

th;

electric

current

from

BPTI

was

done;

he

p"rtoiully

kiew

this

because

he

(Lacsa)

also

worked

there

for

respondent

as

operator

of

the

ball

cutter,

bender

and

welder

for

some

time'

Furthermore,

Lacsa,

the

eyewitness

to

the

unlawful

taking

done

by

respondent

also affirmed

and

confirmed

in

his

,il,orn

affidavit

that

respondent

also

instructed

him

to

connect

the

water

supply

of

CTTL

Building

to

the

water

installation

of

BprI

sometime

in

February

2009

purpgsely

to

make

supply

of

water

to

the

second

floor

of

CTLL

Building

*r-,,i.r.'

respondent

then

intended

to

open

for

wguld-be

tourists

or

checkers

on

14

February

2009

(Valentinels

Day);

when

Lacsa

left

the

employ

of

respondent

in

July

2009,

such

water

connection

was

still

in

operational

and

existing;

when

he

(Lacsa) was

instructed by Dr.

De

Leon,

President

of

U'M',

to

iheck

the

water

connection

sometime

in

June

20LL,

h€

still

saw

and

found

out

that

the

water

connection

is still

there,

however,

the

electric

connection

was

already

cut,

but

nonetheless

the

electric

wire

which

was

then

used

to

connect

the

electric

current

with

BPTI

is

still

there'

Realizing

that

he

cannot

effectively

rebut

the

statements

of

Lacsa,

respondent

even

conclusively

admitted

in

his

Counter-Affidavit

that

he

actually

took

electric

current

and

water

from

BPTI

and

used

it

in

the

construction

of

his

CTTL

Building.

56



ClearlY,

the

foregoing

admission

more

than

sufficientlY

the

element

of

"unlawful

taking"

evidence

and

conclusive

established

the

existence

of

As

to

the

second

requisite,

with

respect

to

the

element

ttrat

tf'e

said

'tpersonal

property

belongs

to

another",

witness

Lacsa

affirmed

and

confirmed

in

his

sworn

affidavit

that

the

electric

current

and

water

were

taken

from

BPTI

which

in

turn

is

owned

by

UM.

This

was

duly

admitted

by

respondent

in

his

counter-Affidavit.

So,

there

is

also

more

than

sufficient

basis

of

the

existence

of

probable

cause

on

this

score.

As

to

the

third

requisite,

with

respect

to

-the

element

that

'tf'e

ta[ing

be

done

with

intent

to

gain",

petitioner

benefited

from

the

electric

current

and

water

as

he

used

them

in

constructing

his

GTLL

Building.

This

is affirmed

and

confirmed

likewise

nv

Lacsa

in

his

sworn

affidavit

and

duly

admitted

by

respondent

in

his

Counter-Affidavit'

By

"gain"

is

meant

not

only

the

acquisition

of

a

thing

useful

to

the

pul"poses of

life

but

also

the

benefit

which

in any

other

sense

*uy

be

derived

or

expected

from

the

act

which

is

performed.Bo

As

to

the

fourth

requisite,

with

respect

to

the

element

"withOut

the

OWner'S

Consent",

the

Sworn

affidavit

of

Dr.

De

Leon

attested

to

the

fact

that

the

Board

of

Trustees,

which

is

the

corporate

governing body

of

UM

pursuant to sec.

23 of

the

corporation

code,

did

not

consent

and

in fact

does

not

know

the

said

illegal

connections

and

so

said

installations

were

not

legal

up

to

the time they

were

disconnected.

Furthermore,

the

Certification

of

Atty'

Diosdado

G.

Madrid,

a

member

of

the

Board

of

Trustees

and

Corporate

Secretary

of

the

UM,

attested

to

the

fact

that

since

11

August

2006

to

date,

records

of

the

meetings

of

the

UM

Board

has

shown

no

passage

of

any

resolution

authorizing

respondent,

or CTLL

Building

Dely's

Inn,

to

connect

the

water

and

electrical

connections

of

the

BPTI

to

respondent's

CTLL

Building.

As

to the

fifth

requisite,

with

respect

that

*it

be

accomplished

without

the

use

the

element

violence

or

s4

Ant,,nio

Crcgoris,

Fultlanrcntals

of Criminal

Law

Rcvicw,

1997

Ed.,

p.759,

citing

People

vs.

Fentattdez.3tJ

O'C'

9lt-5.

to

of

57



intimidation

against

persons,

nor

force

upon

things",

the

documenta.y

*O

testimonial

evidence

presented

in

the

case

negated

the

use

of

violence

of

intimidation

against

persons

nor

force

upon

things

in

the

taking

of

the

electric

current

and water.

As

to

the

sixth

requisite,

with

respect

to

the

element

that

.'it

be

done

rmith

grave

anGe

of

confidence",

respondent

had

duly

admitted

in

tris

Complaint

for

Forcible

Entry

with

Damages,

docketed

as

civil

case

No.

13540

filed

with

the

Munic'Ipal

Trial

Court

of

Baguio

City

ut

at

the

trial

of

the

subject

incident

he

was

the

General

Manager

and

operator

of

BPTI

owned

by

UM.

His

admission

is

considered

a

judicial

admission

sin."

ih"

complaint

was

verified

and

filed in

court'

The

fact

that

respondent

was

managing

BPTI.

is

also

bolstered

by

the

Minutes

of

the

Board

of

Trustees'

Regular

Meeting

held

on

15

June

2011

wherein

it

is

stated

that

the

uM

Board

of

Trustees

passed

a

resolution

removing

respondent

from

the

management

and

operation

of

BPTI'

As

to

the

seventh

requisite,

with

respect

to

the

damage

srrtffilson

of

respondent's unlawful

taking-

with

grave

abuse

of

confidence

of

the

water

and

electr-'icity,

the

electric

and

water

consumptions

of

the

BPTI

in

2006

and

2011

when

the

illegal

connections

were

not

yet

made

or

were

already

cut

when

compared

vis-d-vis

the

water

and

electric

consumptions

of

BPTI

from

2OO7

up

to

2010

would

show

the

actual

loss

incurred

by

the

UM

by

reason

of

said

illegal

and

unauthorized

connections'

From

the

electric

and

water

consumptions

of

BPTI

for

the

period

2OO7

to

2010

should

be

deducted

the

regular

electric

and

water

consumptions

every

year

of

BPTI

and

the

difference

is

the

amount

of

loss

stolen

by

respondent

from

UM

every

year.

This

amount

must

be

multiplied

by

the

number

of

years

the

illegal

connections

were

existing,

which

amounted

to

Php3

Million,

more

or

less'

Thus,

in

its

order

dated

01

February

20L2,

the

RTC-

Baguio

City,

Branch

7

well

founded

probable

cause

against

respondent

for

Qualified

Theft,

explaining:

"Probable

cause

is

the

existence

of

such

facts

and

circumstances

as

would

excite

the

belief

in a

reasonable

mind

that

a

crime

has

been

committed

and

58



that

the

respondent

is

probably

guilty

thereof

and

should

be

held

for

trial'

In

the

present

case,

the

Court

agrees

with

and

affirms

the

findings

of

the

investigatingprosecutor,AssistantCity

Prosecutor

Rolando

T'

Vergara,

that

probable

cause

indeed

exists

for

the

indictment

of

the

accused

for

the

crime

of

qualified

theft

considering

that

he

himself

admitted

that

he

cause

the

tapping

of

and

diverted

electricity

and

*itet

from

the

Benguet

Pines

Tourist

Inn

(BPTI)

which

is

owned

bY

the

UniversitY

of

Manila

(UM)

to

the

CTLL

building

which

he

owns

without

the

consent

of

aPProval

of

the

Board

of

UM.

Like

the

investigating

prosecutor,

the

Court

finds

that

the

defense

relied

upon

bY

the

accused'

that

is,

that

the

taPPing

and-

diversion

was

with

the

consent

of

his

late

father,

Fr.

Virgilio

D'

Delos

Santos

is

barred

and

Prohibited

under

the

"Dead

Man's

Statute"

under

Section

23,

Rule

t3O

of

the

Rules

of

Court.

Dr'

Delos

Santos

could

not

possibly

confirm

the

claim

of

the

self-serving

allegation

of

the

accused.'Bs

(Emphasis

in

bold

supplied)

On

the

other

hand,

in

its

Order

dated

07

December

20L2,

the

RTC-Baguio

City,

Branch

60

duly

affirmed

the

above

finding

of

probable

cause,

ratiocinating:

"The

issue

raised

by

the

accused

in

his

Partial

Motion

for

Reconsideration

must

first

be

resolved

considering

that

the

same

involves

the

question

on

whether

or

not

probable

cause

exists

to

indict

him

of

the

crime

charged

in

the

information.

It

must be

pointed

out that

the

accused

is

charged

with

the

crime

based

on

the

existence

of

a

probable

cause.

Probable

cause

is

defined

as

a

*t

At

p. 2, Anncx

"L"

hcrcol'.

59



reasonable

ground of

presumption

that

a

matter

is,

or

may

be,

well-founded

in

such

a

state

of

mind

as

would

lead

a

person of

ordinary

caution

and

prudence

to

believe

or

entertain

an

honest

or

strong

suspicion

that

a

thing

is

so'

It

is

also

defined

as

such

facts

as

are

sufficient

to

engender

a

well-founded

belief

that

a

crime

has

been

committed

and

that

resPondents

are

ProbablY

guitty

thereof.

There

are

two

kinds

of

determination

of

Probable

cause;

executive

and

judicial.

In

the

case

at

bar,

Probable cause

against

the

accused

has

alreadY

been

determined

under

both

instances'

The

contentions

of

the

accused

in

his

present

motion

are

evidentiary

in

nature.

The

same

are

better

appreciated

in

a

full-blown

trial

or

in

a

more

approPriate

motion.

The

presence

or

absence

of

the

elements

of

the

crime

is

evidentiary

in

nature

and

is

matter

of

defense

that

may

be

Passed

upon

on

a

full-

Uo*n

trial

on

the

merits.B6"

(Emphasis

in

bold

suPPlied)

FROM

THE

FOREGOING,

it is

daylight

clear

that

the

trial

courts'

finding

or

probable cause

had

sufficient

and

strong

legal and

factual

bases,

to

wit:

AS

CONCLUSIVELY

ADMITTED

BY

HIM

IN

HIS

COUNTER-

AFFIDAVITBT,

RESPONDENT

HAD

CAUSED

THE

TAPPING

OF

AND

DIVERTED

WATER

AND

ELECTRICITY

FROM

UM'S

BPTI

TO

HIS

CTTL

BUILDING.

PER

RECORDS,

RESPONDENT

HAD

TOOK

WATER

AND

ELECTRICITY

FROM

UM'S

BPTI

WITHOUT THE

CONSENT

OF

THE UM

BOARD

OF

TRUSTEESBB.

st'

At

1.,p.

2, Anncx

"Q"

Itcrcof.

s'

Anncx

"C"

lrcrcol.

s*

pl"a*"

scc

Ccr.(ilication

tlatccl

07

July

20ll issuctl

try UM's

Cotltoratc

Sccrctary

Atty.

Diosilado

G. Math'id,

attachctl

as

Arrncx

to

UM's

Crinrinal

Conrlllaint,

Allltcx

"B" lrcrcol'.

A.

B.



c.

D.

RESPONDENT'S

DEFENSE

THAT

HE

TOOK

WATER

AND

ELECTRICITY

WITH

THE

CONSENT

OF

HIS

FATHER

DR'

VIRGILIO'

IS

BARRED

AND

PROHIBITED

PER

THE

RATIoNALEoFTHE*DEADMAN,SSTATUTE"

RULE.

ALSO,

RESPONDENT'S

DEFENSE

OF

LACK

OF

INTENT

TO

STEAL

IS

EVIDENTIARY

IN

CHARACTER

AND

SHOULD

BE

BETTER

APPRECIATED

IN

A

FULL

BLOWN

TRIAL'

7.

IF

AT

ALL,

THE

HOTLY

CONTESTED FACTUAL

ISSUES

OF

DR.

VIRGILIO'S

CONSENT

TO

THE

TAKING,

GOOD

FAITH

AND

LACK

OF

INTENT

TO

GAIN

ARE

INDEED

MATTERS

OF

DEFENSE

THAT

OUGHT

TO

BE

RESOLVED

BY

THE

TRIAL

To reiterate

at

the

expense

of

broken

record,

the

hotly

contested

factual

issues

of

Dr.

virgilio's

consent

to

respondent's

taking,

the

uM

Board

of

Trustees'

implied

acquiescence

thereior,

and

respondent's

bona

fide

belief

or

good

faith

vis-d-vis

that

he

took

water

and

electricity

with

the

consent

of

the

actual

owner

thereof,

are

truly

matters

of

J"i"nr"

that

ought

to

be

resolved

by

the

trial

court

at

the

first

instance,

not

by

the

Court

of

Appeals

on

a

mere

certiorari

Petition.

Specifically,

respondent's

defense

of

bona

fide

belief

or

good iaith

does

not

overcome

the

existence

of

probable

cause

of

the

crime

of

Qualified

Theft

against

him'

Good

faith

is

a

matter

of

defense

which

is

best

ventilated

in

a

full

blown

trial

before

the

trial

court.

As

held

by

this

Honorable

court

in

Andres

vs,

Cuevasgs:

"Notattt

dignum

is

Petitioners'

ventilating

before

this

Court

the

merits

of

their

defenses'

The

issue

of

whether

they

acted

in

good faith

is

best

determined,

however,

during

the

trial

proper.

This

is

not

the

occasion

for

the

full

PE

8e

c.R. No.

l50tt(r9.09.lLurc

2005;4(r0

SCRA

38,

52-53

6l



and

exhaustive

display

of

their

evidence'

The

Presence

or

absence

of

the

elements

of

the

crime

is

evidentiary

in

nature

and

is

a

matter

of

defense

that

may be

passed

upon

after

a

full-blown

trial

on

the

merits'

In

fine,

the

validitY

and

merits

of

a

party's

defense

or

accusation'

as

well

as

iamissibility

of

testimonies

and

evidence,

are

better

ventilated

during

trial

proper

than

at

the

preliminary

invesiiguiio,t

level"'

(Emphasis

in

bold

suPPlied)

In

fact,

in

the

cases

of

US

vS.

Manluco,

et

al.eo

and

Gaviola

vs,

iuo-pti'r--which

were

cited

by

the

Court

of

Appeals,

IFourth

Division

Division

of

Five]

majority

in

its

assailed

Amended

Decision,

accused'claim

of

honest

belief

or

good faith

was

only

weighed

and

ru-led

upon

by

the

trial

cou

rt

after

a

full

blown

tfnt

.

Evidently,

this

is

not

the

case

here.

1.

III

THE

COURT

OF

APPEALS

ISPECIAL

TENTH

DIVISION]

CORRECTLY

RULED

IN

ITS

RESOLUTION

DATED

30

JULY

2OL3

THAT

RESPONDENT

IS

NOT

ENTITLED

TO

BAIL

AS

A

MATTER

OF

RIGHT

SINCE:

PER

THIS

HONORABLE

COURT'S

RULING

IN

PEOPLE

OF

THE

PHILIPPINES

VS,

HU

RLTEY

CHUN

(G.R. NO.

158064'

30

IUNE

2005;

462

SCRA

4gg,51o-515)

AND

orHER

ESTABLISHED

J U

RISPRU

DENCE,

THE

INSTANT CRIMINAL

CHARGE

AGAINST

RESPONDENT

FOR

QUALIFIED

THEFT

IN

THE

""

N.r.

l(X)0-5.09

Novcntbcr

l9l4;2ti

Phil

3(rl'

')r

C.R.

Nn.

16392'7.27

January

200(r;

4tt0 SCRA

436'

62



AMOUNT

OF

PHP3,OOO,OOO.OO

PER

SE

IS

A

NON.BAILABLE

OFFENSE,

AS

THE

PENALTY

THEREFOR

IS

RECLUSION

PERPETI,JA PER

ARTICLE

310

IN

RELATION

TO

ARTICLE

309,

REVISED

PENAL

CODE.

oNTHEFACTS,respondentWaSchargedherefor

having

stolen

water

and

electricity

with

grave

abuse

of

confidence

in

the

amount

of

php

3,000,000.00

which,

as

per

Article

310

in

relation

to

Article

309,

Revised

Penal

code

is

punishable

by

reclusion

perpetua.

This,

since

the

penalty

for

tf',"ft

under

Art.

309

reads,

in

Part:

'txxx

1.

The

penalty of

prision

maYor

in

its

minimumandmediumperiods'ifthevalue

of

the

thing

stolen

is

more

than

12'000

pesos

but

does

not

exceed

22'OOO

pesos;

but

if

the

value

of

the

thing

stolen

exceedsthelatteramount,thepenalty

shall

be

the

maximum

Period

of

the

one

prescribed

in

this

paragraph'

and

one

Year

for

each

additional

ten

thousand

Pesos,

but

the

total

of

the

PenaltY

*irict

may

be

imPosed

shall

not

exteed

twenty

years'

In

such

cases/

and

in

connection

with

the

accessory

penalties

which

may

be

imposed

and

for

thepurposeoftheotherprovisionsofthis

Code,

the

penalty

shall

be

termed

prision

maYor

or

reclusion

temporal,

as

the

case

may

be;

x x

x

(Emphasis

in

bold supplied)

Verily,

since

respondent

stands

charged

with

having

unlawfully

took

electricity

and

water

in

the

staggering

amount

of

PhP3,000,000.00

the

maximum

penalty

prescribed

thereof

under

Article

309

should

first

be

applied,

which

is

imprisonment

of

reclusion

temporal

or

twenty

(20)

years. Since

respondent

committed

the

same

in

grave

abuse

of

confidence as

UM's

then

General

Manager

and

Operator

of

its

BPTI,

h€

falls

under

the

graver

felony

of

Qualified

Theft,

which,

under

Article

310,

imposes

a

specific

penalty

two

degrees

higher

than

that

applicable

.in

theft.

Accordingly,

under

the

table

of

penalties

in

Article

76,

Revised

Penal

63



code,

the

penalty

of

reclusion

perpetua

at

the

very

least

is

imposable

on

respondent'

Aptly,

in

Peopte

of

the

Philippines

vs'

Cafialese2

'

this

Honorable

court

had

explicitly

treio

that the

penalty for

Qualified

Theft

under

Article

310

of

the

Revised

Penal

code'

taking

into

consideration

the

value

of

the

property

stolen,

is

reclusionperpefuawiththeaccessoryp"laltJof-dlath'with

ni

porrinitity

of

pardon

before

the

lapse

of

40

years.

AccordinglY,

Per

Section

13",

Philippine

Constitution,

respondent

is

not

matter

of

right

since

he

stand

charged

reclusion

perpetua

as

imposable

penalty'

Article

III,

t9B7

entitled

to

bail

as

a

of

an

offense

with

RespondentnonethelesscitedinhisCAcertiorari

petition

the

case

of

cenzon

vs.

Abad

sanfos

to

bolster

his

position

that

he

is

entitled

to

bail

as

a

matter

of

right'ea

Cenzon

however

is

inapplicable

and

irrelevant

in

this

case

as

the

crime

involved

therein

was

large-scale

or

syndicated

estafa

under

P.D.

No.

B18,

NOT

Qualified

Theft.

what

is

controlling

then

in

this

case

involving

the

crime

of

Qualified

Theft

of

water

and

electricity

in

the

gnount

of

nnpi,000,000.00,

is

the

case

of

Peopte

of

the

Philippines

vs.

Hu

nuey

Chun.'u

There,

this

Honorable

Court

ruled

that

since

the

imposable

penalty

for

the

crime

charged

therein

of

QUALIFIED

THEFT

in

the

amount

of

P762,076'35

is

reclusion

perpetua,

the

accused-respondent

was

NOT

entitled

to

bail

as

a

matter of

right'

2.

PER

EXISTING

DOJ'S

BAIL

BOND

GUIDE

FOR

QUALIFIED

THEFT,

NO

BAIL

SHALL

BE

RECOMMENDED

FOR

THE

SU

BJ

ECT

CHARGE

OF

QUALIFIED

THEFT

SINCE

THE

VALU

E OF

TH

E

PROPERTY

"r

G.R.

No.

1263

19.

l2

octobcr'

l9()8i297

SCRA

(167,

676-67'\'

')3

..Scction

13.

All

pcrsons,

cxcept

those

chnrgetl

rvith

ol'l'elrses

grunishable

by

reclusiolt

perpetun

rvhen

cvitlence

of

guilt is

strong,

shall,

trclorc

coriviction,

bc

trailablc

by

sutlicicrit

sut'ctics,

ot'.bc

t'clcasccl

otr

t'cctlgtrizaltcc

as

tlay

[re

ltr.ovi.dccl

try

law.

Thc

righl

to

bail

shail

not_.trc

inuairccl

cvcn

whcn

thc..pfivilcgc

..,f

thc

wlit

of

habcas

cttt'1ttts

is

susltcnrlctl.'Exccssivc

bail

shall

not

bc

rccluirccl".

(Enlphasis

in

bold

suppliccl)

;ip',",,**irrtru-],

pp. 45-4ti,

rcspoutlcnt's

Pctition

ftrr Ccrtiorari

datcd

l5

Fcbruaty

2013,

Anncx

"R"

hc|cof''

"5

G.R.-N.,.

15tt064.30

Junc

2005:462

SCRA

498'

510-5

l5'



STOLEN

IS

PHP3

MILLION,

MORE

OR

LESS'

SectionL,President,sMemorandumorderNo.tTT

states:

*SECTloNl.Nobailshallberecommended

forthecrimeofqualifiedtheftwherethe

adequate

value

of

the

property

stolen

is

five

hundred

thousand

(P500,000'00)

and

above.

"

The

provision

or

text

of

Memorandum

order

No'

L77,

specifically is literally

and

categorically

clear

wITHOUT

ANY

ciunlrgbarroru

oR

CoNprrrOru

that

no

bail shall

be

recommendeJ

for

qualified

theft

where

the

value

of

the

stolen

property

is

PhP500,000.00

and

above.

It

means

what

it

says

and

it says

what

it

means

In

consequence,

since

respondent

was

charged

for

eualified

Theft

of

stolen

water

and

electricity

which

aggregate

value

is

in

the

amount

of

PhP3,000,000.00,

he

is

therefore

not entitled

to

bail

as

a matter

of right'

IN

FACT,

in

its

fairly

recent

Memorandum

order

No'

63,

series

of

2'013,

the

office

of

the

President

revoked

Memorandum

order

No.

L77,

Series

2005

and

reiterates

the

previous DOI

Circular

No.

29,

Series

of

2005

mandating

that

;'prrrsuant

to

the

provisions

of

existing

laws,

fio

bail

shall

be

recommended

fo,r

the

offense

of

quatified

theft,

whether

consummated,

frustrated

or

attempted,

where

the

value

of

the

propertY

is

P222,000.00

or

more."

In

any

event,

whether

under

Memorandum

Order

No'

L77,

Series

of

2005

or

DOI

Circular

No.

29,

Series

of

2005,

the

subject

charge

of

Qualified

Theft

involving

Php3

Million,

more

or

less,

is

clearly

a

NoN-BAILABLE

OFFENSE.

PRAYER

wHEREFORE,

the

PEOPLE

respectfully

prays

that

this

Petition

be

GIVEN

DUE

COURSE,

and

after

due

proceedings,

the

Court

of

Appeals'

[Former

Fourth

Division

-

biririon

of

Fivel

Amended

Decision

dated

2L

November

65



2014

and

Resolution

dated

28

August

2015

in

cA

-G'R'

sP

No.L2B625,b€REVERSEDANDsETASIDE,andinlieu

thereofanewDecisionbeIssUEDREINSTATINGAND

AFFIRMINGINToTotheCourtofAppeals,[SpecialTenth

Divisionl

Decision

dated

30

July

2013'

other

reliefs

just

and

equitable

are

likewise

prayed

for'

PasigCityfortheCityofManila,l2October20l5'

MADRID

DANAO

&

CARULLO

Counsel

for

Private

Complainant

UM

Suite 1609

t6/F,

Jollibee

Plaza

F.

Ortigas

Jr.

Road

(ex-Emerald

Avenue)

O

rti

g

as

Ce

nter,

Pasi

g

Citv-1

60

5./,

l:? i"-. )".'

L3t43

Tel.

Nos.

(oz)

631

-7s51

I

QZ)

706-331s

By:

RAINI

.

MADRID

Roll

No.

32365

pTR

No.

038101b

/

OL-07-15

/

Pasig

city

Lifetime

IBP No.

05343

/

05-03-05

/

Quezon

MCLE

Compliance

No.

IV

-

0016867

I

O4-75-20L3

/

/

:{A',^'f

.

-

LVINI

A.

CARULLO

City

Pasig

CitY

PTR

No.

Lifetime

MCLE

ComPliance

Roll

No.

48458

03810L2

I

07-07-15

/

Pasig

CitY

IBP

No

.

03773

/

06-28'04

/

RSM

No.

IV

-

001-6869

/04-15-20L3

/Pasig

City

Copy

furnished:

COURT

OF

APPEALS

(By

Personal

Service)

Ma.

Orosa

Street

Ermita,

1000

Manila

[CA-G.R.

5P

No.

128625]

oFFrcE

oF

THE

soLrcrroR

GENERAL

(By

personal

service)

(ASG

BERNARD

G.

HERNANDEZ)

No.

134

Amorsolo

Street

Legaspi

Village,

1299

Makati

CitY

RTC-BAGUIO

CITY,

BRANCH

60

(By

Registered

Mail)

Hall

of

Justice

ComPlex

Baguio

CitY



RTC-BAGUIO

CITY,

BRANCH

7

(By

Registered

Mail)

Hall

of

Justice

ComPlex

Baguio

CitY

RTC-BAGUIO

CITY,

BRANCH

5

(By

Registered Mail)

Hall

of

lustice

ComPlex

Baguio

CitY

ATTY.

FILIBON

FABELA

TACARDON

(By

Registered

Mail)

TACARDON

AND

PARTNERS

Counsel

for

ResPondent

Unit

501,

West

Mansion

Condominium

West Avenue

cor.

Zamboanga

Street

ItO4

Quezon

CitY.

ERNESTO

L.

DELOS

SANT

OS

(By

Registere:d

Mail)

Respondent

108

Cenacle

Drive,

Senville

Subdivision

Tandang

Sora,

Quezon

CitY

In

compliance

with

Section

11,

Rule

13 of

the

L997

Rules

of

Civil

procedure,

counsel

respectfully

manifests

that

service

of

the

foregoing

Petition

for

Review

on

Certiorari

was

done

by

regiiterJO

mail,

personal

service

not

being

practicable

at

the

present

time,

due

to

distance

and

unusually

heavy

volume

of

pleadings

which

have

to

be

filed

by

our

office

messengers.

>A&//{

ALVIT\I

A.

CARULLO

AAC/jcb/UM-1.3928

EXPLANATION

67



VERIFICATION

AND

CERTIFICATION

OF

NON.FORUM

SHOPPING

I,DR,EMILYD.DELEoN,oflegalageandwithofficeaddress

at

546

M.V.

Delos

Santos

Street,'samplloc,

Manila,

after

having

been

duly

sworn

to

in

accordance

with

law,

hereby

depose

and

state

that:

1.

I am

the

incumbent

President

of

the

university

of

Manila

("UM"),

private

complainant

in

the

above

case'

2.

For

and

on

behalf

of

the

uM

per

attached

Secretary's

Certificate

and

with

the

conformity

of

the

Office

of

the

Solicitor

General

(*OSG'),

I

have

caused

the

preparation

uld

filing

of

the

foregoing

Petition

for

Review

on

Certiorari

under

Rule

45

with

the

Supreme

Court.

3.

I have

read

and

understood

the

contents

thereof

and

the

facts

herein

alleged

are

true

and

correct

of

my

own

personal

knowledge

and/or

on

authentic

documents'

4,Tothebestofmyknowledge,nosimilaractionor

proceeding

is

pending

in

the

supreme

court,

the

court

of

Appeals

or

different

divisions

thereof,

or

any

other

court,

tribunal'

or

quasi-

judicial

agency,

except

tt're

originating

criminal

case

No'

32306-R'

entitled

"people

Of

ine

Philippines

vs.

Erne-sto

Delos

Santos",

now

pendingbeforeRTC-BaguioCity,Branch5;andCA-G.R.SPNo'

L28625,

entitled

"Atty.

Ernesto

L.

Delos

santos

vs'

Regional

Trial

court

of

Baguio

city,

Branch

60

And

Branch

7,

and

university

of

Manila

represented

by

D;.

Emity

D.

De

Leon",

Court

of

Appeals-Manila

IFormer

Fourth

Division-Division

Of

Five]'

5.

Should

it

come

to

my

knowledge

that

a

similar

action

or

proceeding

has

been

filed

or

is

pending before

the

supreme

court,

the

court

of

Appeals,

the

different

divisions

thereof,

or

any

other

court,

tribunal,

or

quasi-judicial

agency,

I

hereby

undertake

to

notify

the

court or tribunal

taking

cognizance

of

the

above-entitled

case

of

such

fact

within

five

(5)

dayi

from

receipt

of

such knowledge.

6.

Iam

Section

5,

Rule

7

executing

this

sworn

statement

in

compliance

with

of

the

LggT

Rules

of

Civil

Procedure

DR.

E

D.DEL

Affiant

at

CF

N

"'@tr-ryt:ab

R

tl

U

BS

Doc.

No.

(ft/J;

Paqe

No.

'

4l;.

so-or

No.-48

Series

of

2015.

.N[x

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SECRETARY'S

CE

RTIFICATE

I,ATTY.DIOSDADOG'MADRID'oflegalage'Filipinoandwithoffice

address

at

546

n.v.-ouro,

santos

sil"J-,1umput6c,

uinita

after

having

been

first

sworn

in

accordance

with

law'

do

hereby

certify:

1'IamthedulyelectedandincumbentCorporate.Secretaryofthe

Universtty

of

Manila

("corporation;;'-a

corporation

duly

organized

and

existing

under

PhiliPPine

laws'

7.

As

Corporate

Secretary'

I

am

the

cus,todian

of

the

records

of

the

Corporation,

includ-iiI,,"-*i"rtes

of

itre

meetings

of

its

Board

of

Directors'

3.ThatataRegularMeetingoftheboardofTrusteesoftheCorporation

held

on

september

6,20L5,

at

whicti

meeting

a.quorum

was

present

and

acting

throughout, the

foiio*ing

resolutions

were

approved'

among

others:

*RESOLVED,

that

the

Corporation'

with

t ''u

endorsement

of

tt''"

-OCp-eaguio

City/DOJ

and

the

.onr"o|.rn.itvortr-.'"officeortr'"SolicitorGeneral,shall

appeal,

via

Petition

for

Review

on

Certiorari

under

Rule

45,

with

the

Supreme

Court

the

Court

of

Appeals'

IFourth

Division

-

Division

of

Five]

Amended

Decision

dated

21

November

2074

and

Resolution

dated

28

nugustZOISinCA-G'R'SPNo'tZB625'entitled"Atty'

Ernesto

L'

Delos

Santos

vs'

RTC-Baguio

City'

Branch

60

,r;-):indllniversityofManila'representedbyDr'

EmitY

D'

De

Leon"'

RESOLVED

FURTHER,

as

it

is

hereby

resol-ve.d'

thatDr.EmilyD.DeLeon,incumbentPresidentofthe

Corporation,

be

auth

orized'

as

she

is

authorized'

to

sign

ror.

-*J

on

behalf

of

the

Corporation'

the

Motion

for

Extension

of

Time

to

File

Petition

for

Review

on

Ceriior;ri

under

Rule

45'

and

the

main

Petition

for

Review

on

Certiorari

under

Rule

45

and

any

and

all

pteaaings

in

the

said

case'

and

such

other

papers

or

documentsnecessary/incidentaIand/orproperin

resPect

thereto"'

4.Theforegoingresolutionshavenotbeenaltered,modifiedorrevoked

and

that

the

same are

still

in

full

force and effect'

5.IamexecutingthisCertificateforwhateverlegitimatepurpose/sit

may

serve

INWITNESSWHEREOFI\-I,hBvshereuntosetmyhandthis

#,ui'--

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ArrY.

DrosDAD{o.'o'*'6

CorPorate

S{cretarY

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sEP

2

3

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Issued

on

June

5,

2009.

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no.

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of

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RECEIVEDBY,*X,;-*

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21

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Ragr-tio Cit1,

Irr"osecLitor

lilrtri:i- l\4antte1

Sagrsago in

CA-G.F:.

SF'l\o.

l')8ri:15

enrir.lr:r-l

".A,1.t'1-.

Iii-riesto

I-.

De

lus

,'Jantos

\rsi. [i'1'C-Bag-urio

Cit1r, Branch

60

ancl 7 and

LIrriv.:r'sit],

of

Maililer,

l"epresentecl

1r),

Dt.

Er-nihr de

I-,f:or-l

"

Dear

Pr^lrsc'':1.11.r-rr-

{

i

ener^ai Ar-e11ano,

Or-r

i:icirLclniicr

24, ?015,

t-lre

Office

receirrecl

lroi-rr

suirjecr

letter rt'l'rit:h

tn,'as

r-olrted

tc

the

nndersignecl's

Dirzision

as

a

lre\^i

cErse

assignnrerrI

on

lieplerr-rber

28,

2015,

ancl

r,rzhich

reacls:

'l'lris

refers to

tlre

al,tzrched

I

"L

Inclorsernent

rlaied

September

?1,

2015 of

City Prosecutor

Dhler

N4anuel

Sagsago,

Office

of

Cit1,

Prosecutor

ol

Rarglrio

Cit1,,

relattirre

1o

CA-G.lR.

SP

No.

1286-115

entitlecl

Att1r. ]jpr-resio

I-. De

I-os

Santos

1,1_:1-sl,1si

ftTC-Eaguir;

(_]ii.1,,

Branch

50 eLnci

7,

Ilnirrersi[1,

of

\4nni1a,

represented

lt5,

p;.

Emil1,

li.

Dc'I-eon.

We

have

gorxri

arver the

record

of tXre

cii.s*

;.1:llrt

'rxre

ccrrlcrlr

wi.th

the

o,pirri*n

ofl

Cit5r

trlrjos:s+uutsr

Elrtter

lldanrnel Sagsago

ttrrat

the

(:*$le

be irrought

befc,re

tfue

Court

of Appeals

on

a tretition

fr:r

Certinrari.l

I

entphasis

srrplrlierl



\A/e

sr_rpport

his

r-eclriest

for

the

filing

ol

Lhe

serid

petitior-r.

It

is

tl-ier-efure

recli_restecl

of

,\ror-lr

goocl

office

to

rc-:ttcler

Lls

116111-

ieeal

assistarrce

on tlie

ritatter.

'l'hairi<

\ron.

A

|et-rtsi,ll

of

the

atteichecl

clocurnents

to

saicl

iett-er

shours

tl-rat

the

ci,rst:

ltas

erjr-eacly

11".,r

aclrrerselr,,

acljuclicatel

iri;-;Lr;.

-bo.rri

ol:

Al:t:eiils.

f*lettc,:,

i1'etrer,

rl

]retitiolr

for

reirievi,

on

cen.jor.ari

rnritii

th.-:

srr-ii'.:-r,:

r--'.or-rr

i..s.riaL

nhCI,'r.

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ce*iol-ar-i

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t]rr:

cor,tr-r

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uri

s

riJ.'r

c,u

I

cj

1_r,:

prLri-s

ite

:i.

(-11-iserrieclh,,

trre

office

of

tire

city

prosec.-ltor,

Bagr-rio

cit3.

11*n

trot

beeLr

fulr-nis;rrecr

a

cop\,r

of

the

court

of

Appears,

crispositio,s

o,

tlre

ci:1rie,

'i.e..,

Arrrenclecl

rlecision

promlllgrt.a

on

Norrember

2r,

20.1'l

arrd

Rescrlnl-jon

pron-rulgarlerl

n'

A.rg..-.,ft

zs,

201s,

becanse

t_rre

People

is

liot

a

1::art1'

to

saicr

ca.se.

Tl-rus,

rlre

have

no

recri.,i.g

periocl

io

ille

tli*

lretitiorr

fcir

i-sviE14r

on

cei^i-iorari.

In

aril'Z

.1\re

11t,

resf

aLssr,rrecl

that

tirat

we

vtrill

give

olrr

cottfot-tttit'1'

1-o

1lie

motiou

l'or

e:rl.ensiion

of

time

to

l.iie

petirio,

for

revieu'

ancl

Fctii-iorr

for

revieur

urhrrcir

trre

private

resp.,clent

Un

jrrer-sir.5,

o[

]\4crr-r

jla

r,rrill

file.

El,:-,sI

regetrcIs.

Vet1,

truI1r

)ro1-lrs,

,'\

(

t.^

tsERMfu:}}mn-*^ruDEn

,4sslslarz

t

Soli cit or-

Generctl

,-/_?;_;

i

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..i

\lz\/'l'Z/11

Clar.,\rcllrirrrr

rc

lrr.l,s

Sa,t.s

vs.

ll.l,C,

I;agrr:,

&

L1l\,1/0?6

109



AFFIDAVIT

OF

SERVIGE

l,

JAIME

M.

TAYAG,

a

paralegal

of

MADRID

DANAO

&

CARULLo,

with

office

1609,

1GlF

Jollibee

Plaza,

F.

ortigasir'

Road

(ex-Emerald

Ave')'

ortigas

Oenter'

Pasig

been

duly

sworn

to

in

accordance

witl-'

t'*'

hereby

depose

and

state:

address

at

Suite

City,

after

having

That

on

ln

G.R.

No.

220685

[CA-G.R'

SP

No'

1286251'

Sanfos"

pursuant

to

Sections

6, 7

and

13 of

Rule

Bv

Personal

Service:

COURT

OF

APPEALS

Ma.

Orosa

Street

Ermita,

1000

Manila

ICA-G

R.

SP

No'

128625]

OFFICE

OF

THE SOLICITOR

GENERAL

(ASG BERNARD

G.

HERNANDEZ)

No.

134

Amorsolo

Street

Legaspi

Village,

1299

Makati

CitY

Bv

Reqistered

Mail:

RTC.BAGUIO

CITY,

BRANGH

60

Hall

of

Justice

ComPlex

Baguio

CitY

RTC.BAGUIO

CITY,

BRANCH

7

Hall

of Justice

ComPlex

Baguio

CitY

RTC.BAGUIO

CITY,

BRANCH

5

Hall

of

Justice

ComPlex

Baguio

CitY

ATTY.

FILIBON

FABELA

TACARDON

TACARDON

AND

PARTNERS

Counsel

for

ResPondent

Unit

501,

West

Mansion

Condominium

West

Avenue

cor.

Zamboanga

Street

1104

Quezon

CitY.

ERNESTO

L.

DELOS

SANTOS

Respondent

108

Cenacle

Drive,

Senville

Subdivision

Tandang

Sora, Quezon

CitY

entitled

"People of

the

Phitippines

vs'

Atty'

Ernesto

L'

Delos

t

g

of

tl',"

t

ggZ

Rutes'of

Civil

Procedure'

as

follows:

of

Pasig

City

as

evidenced

by

Registry

Receipt

Nos'

and

hereto

attached

y

depositing

FIVE

(5)

copies

at

the

Ortigas

Post

Office

petition for review under rule45

Documents