PROPERTY DIGESTS (2013 2014) ATTY. VIVENCIO ABANO

Castelo Chan-Gonzaga Evardone Gacutan Gana Gutierrez Lopez Valdez Miclat Mercado Tan Torres Valdez Lopez Varela

G.R. No. 190487 April 13, 2011 BUREAU OF CUSTOMS v. WHELAN PETITIONER: BUREAU OF CUSTOMS RESPONDENTS: PETER SHERMAN, MICHAEL WHELAN, TEODORO B. LINGAN, ATTY. OFELIA B. CAJIGAL and the COURT OF TAX APPEALS PONENTE: J. Carpio Morales CASE SUMMARY: Respondents were charged before the Department of Justice for violation of the Tariff and Customs Code of the Philippines and Republic Act No. 7916. State Prosecutor Lao-Tamano found probable cause against them and recommended a filing of an Information (see background) before the CTA. By a subsequent Resolution, the Secretary of Justice reversed State Prosecutor Lao-Tamanos recommendation and withdrew the Information. Lao-Tamano himself later on filed before the CTA a Motion to Withdraw the Information against the respondents, a move which petitioner BOC opposed. The CTA thereafter granted the Withdrawal of the Information, to which the BOC filed an MR. The CTA Noted Without Action this MR by the BOC. Hence, this appeal. The Court ruled that the petitioner may not seek relief via certiorari because as all criminal actions commenced by complaint or information are prosecuted under the direction and control of public prosecutors, the CTAs Resolution granting State Prosecutor Lao-Tamanos Withdrawal of the Information means that the case against the respondents cannot anymore prosper. Moreover, as petitioners MR of the challenged CTA Resolution did not bear the imprimatur of the public prosecutor to which the control of the prosecution of the case belongs, the petition must fail.

BACKGROUND Herein respondents1 were charged before the DOJ for violation of Section 3601 vis--vis Sections 2530 of the Tariff and Customs Code of the Philippines, as amended, and Republic Act No. 7916.

State Prosecutor Rohaira Lao-Tamano found probable cause against respondents and recommended the filing of Information against them.

Respondents then filed a petition for review before the Secretary of Justice during the pendency of which the Information was filed on before the Court of Tax Appeals (CTA), the accusatory portion of which reads:

That on or about June 2005 to December 2007, in Manila City, and within the jurisdiction of this Honorable Court, the above named accused, in conspiracy with one another, made 40 unlawful importations of 255, 870 pieces of finished printed bet slips and 205, 200 rolls of finished thermal papers from Australia valued at approximately US$ 1,240,880.14, and caused the removal of said imported articles from the Clark Special Economic Zone and delivery to the Philippine Charity Sweepstakes Offices without payment of its corresponding duties and taxes estimated at around Php 15,917,611.83 xxx to the damage and prejudice of herein complainant.

1 Respondents:

1. MSPI Chairman Peter Sherman 2. Managing Director Michael Whelan 3. Country Manager Atty. Ofelia B. Cajigal 4. Finance Manager and Corporate Secretary Teodoro B. Lingan 5. Erick B. Ariarte and Ricardo J. Ebuna and Eugenio Pasco, licensed

customs broker who acted as agents of MSPI

PROPERTY DIGESTS (2013 2014) ATTY. VIVENCIO ABANO

Castelo Chan-Gonzaga Evardone Gacutan Gana Gutierrez Lopez Valdez Miclat Mercado Tan Torres Valdez Lopez Varela

Only respondents Cajigal and Lingan were served warrants of arrest following which they posted cash bail bonds.

By Resolution of March 20, 2009, the Secretary of Justice reversed the State Prosecutors Resolution and directed the withdrawal of the Information.

Petitioners MR having been denied by Resolution of April 29, 2009, it elevated the case by certiorari before the CA.

In the meantime, Prosecutor Lao-Tamano filed before the CTA a Motion to Withdraw Information with Leave of Court to which petitioner filed an Opposition. Respondents, on their part, moved for the dismissal of the Information.

The CTA, by the herein assailed Resolution of September 3, 2009, granted the withdrawal of and dismissed the Information.

Petitioners MR filed on September 22, 2009 was Noted Without Action by the CTA by Resolution:

Considering that an Entry of Judgment was already issued in this case on September 23, 2009, no MR of the Resolution dated September 3, 2009 having been filed by State Prosecutor Lao-Tamano of the DOJ; the "MR of the Resolution dated 3 September 2009" filed on September 22, 2009 by Atty. Christopher F.C. Bolastig of the Bureau of Customs is NOTED, without action. Hence, petitioners present petition for certiorari.

ISSUE/S TO BE RESOLVED WON petitioner BOC may seek relief via certiorari NO

RESOLUTIONS AND ARGUMENTS Major Point 1: As all criminal actions commenced by complaint or information are prosecuted under the direction and control of public prosecutors, the CTAs Resolution granting State Prosecutor Lao-Tamanos Withdrawal of the Information means that the case against the respondents cannot anymore prosper.

In the prosecution of special laws, the exigencies of public service sometimes require the designation of special prosecutors from different government agencies to assist the public prosecutor. This designation of special prosecutors from different government agencies, however, does not detract from the public prosecutor having control and supervision over the case.

The participation in the case of a private complainant, like petitioner, is limited to that of a witness, both in the criminal and civil aspect of the case.

Major Point 2: Petitioner is not represented by the Office of the Solicitor General (OSG) in instituting the present petition.

This contravenes the doctrine that "the OSG shall represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation, or matter requiring the services of lawyers."

Petitioners MR of the challenged CTA Resolution did not bear the imprimatur of the public prosecutor to which the control of the prosecution of the case belongs. Hence, the present petition fails.

FINAL VERDICT The petition is DISMISSED

SEPARATE OPINIONS None