GR No.220685 Petition for Review Rule 45

7/23/2019 GR No.220685 Petition for Review Rule 45

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REPUBLIC OF

THE

PHILIPPINES

SUPREME COURT

MANILA

DIVISION

PEOPLE

THE

PHILIPPINES,

Petitioner,

-

VCTSUS

-

c,R.

No. 220685

(CA-G.R.

SP

No. 128625;

Court

of

Appeals,

Former

Fourth Division

-

Division

of

Five)

ERNESTO

L.

DELOS

SANTOS,

x_______

1::11: _"_"

-x

PETTTION

FOR

REYIEW

ON

CEBTIORABI

UNIDEB

RUI.E

45

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]

lclourt

is

to

ascertain

whether

the

lower

court

xxx

acted

with

grave

abuse

of

discretion

amounting

to

excess

or lack

of

jurisdiction

in

the

exercise

of

judgment,

such

that

the

act was

done

in

capricious,

whimsical,

arbitrary

or despotic

manner.

In

a

petition

for

certiorari,

the

jurisdiction

of

the

appellate

court

is

narrow

in

scope.

It is

limited

to

resolving

only

errors

of

jurisdiction."1

A

fortiori,

the

office

of

a certiorari

petition

assailing

the

trial

court's

finding

of

probable

cause

for

'

Chan

v. Court

of .,lgteals.

C.R.

No.

I-59922.

2ti

April ZOt)5,457

SCRA 205,

515

I

OF

of

of



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-RESPONDENT CONCLUSIVELY

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.

PER

THE CERTIFICATION ISSUED

BY

UM'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.

ON

TOP

OF ALL,

ACCUSED-RESPON DENT,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

Zolf

and

Second Resolution

on

Review

dated 23

November

2}t7t.

On

respondent's

appeal, such

administrative

probable

cause

finding

was

affirmed

by the

DOI

in

its Resolution

dated

0g

June

20156.

Moreover,

the

RTC

-

Baguio

City

7 and

60 later

found

probable cause

for

issuance

of

warrant

of

arrest

'

Please

see Arnex

"C"

hereof.

t

Pl"n."

scc Ccrtiflcation

datcd

07 July 201

I

issucd by

UM's Coryrurate

Sccrctary

Atty.

Diosdatlo

G. Maclrid,

attar:hcrl

as

Annex

to

UM's

Crirninal

Comltlaint, Annex

"8"

hcr.eoi.

'

PI"n."

scc

Arrnex

"F"

lrcreot.

'

Pl"na" sec

Anncx

"1"

hercof.

t'

Pl"ns"

sce Anncx

"l("

hercof.



against

respondent

vis-ir-vis

the

charge

for

Qualified

Theft.T

On

respondent's

petition

for

certiorari,

the

Court

of

Appeals

Ispecial

Tenth

Division]

likewise

unanimously

affirmed

the

frial

courts'

judicial

determination

of

probable cause

for

issuance

of

warrant

of

arrest

against

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

from

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.

Indeed,

by

resolving

the

same

this

early,

worse

ahead

of

trial,

it

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'

IFormer

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,

L997

Rules

of Civil

Procedure,

as amended,

seeking

to

annul

and set

aside

the

Court

of

Appeals'[Fourth

'

Pl"n."

see Anncxes

"L"

ancl "Q"

hereof'.

8

Pl"n."

see Arrrrex

"V"

hereof'.



Division

Division

of

Fivel

3-2

Amended

Decision

dated

2L

Novem

ber

2OL4

,

a

nd

Cou

rt

of

Appea

ls

I

Former

Fourth

Division-

Division

of

Fivel

3-2

Resolution

dated

28

August

2015

in

CA-G.R.

SP

No,

L28265,

entitled

*Atty.

Ernesto

L.

Detos

Santos

vs'

RTC

-

Baguio

City,

Br.

60

and

8r.7,

and

lJniversity

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".

TTMELINESS

OF

THE

PETITION

On O3

December 2O14,

private

complainant

UM

received

a

copy

of

the

Court

of

Appeals'

IFourth

Division

Division

of

Fivel

first

assailed

Decision

dated

2L

November

2OI4

in

CA-G.R.

SP

No.

LZB265

which

reversed

and

set

aside

the

previous

Court

of

Appeals'

[Special

Tenth

Division]

Decision

dated

30

July

20L3,

nullified

the

trial

courts'

finding

of

probable

cause

for

Qualified

Theft

against

accused-respondent,

dismissed

the

complaint and

quashed

the warrant

of arrest

against

accused

respondent,

for

which

private

complainant

UM

timely

moved

for

reconsideration

thereof

on

L7

December

2OL4.

On

16 September

2O15,

private

complainant

UM

received

a

copy

of the

Court

of

Appeals'

IFormer

Fourth

Division

Division

of

Fivel

second

assailed

Resolution

dated

28

Aug

ust

20

15

denying

its

motion

for

wh

ich to

file

with

th

is

Honora

ble

Cou

rt a

petition

for

review on certiora

ri u

nder

Ru le

45

.

On

01 October

2015, on

behalf

of

the

People

of the

Philippines,

private

complainant

UM,

on meritorious

grounds,

moved

for

extension

of

thirty

(30)

days

from

01

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

OSG,

thru

Assistant Solicitor

General

Bernard

G.

Herna ndez,

had



assured

DOI

Prosecutor

General

Claro

A.

Arellano

that

the

OSG

shall

ratify

or

give

its conformity

to

private

complainant

UM's

motion

for

extension

of

time

to

file

petition for

review

on

certiorari,

and

this

instant

petition

for

review

on

certiora

ri

.e

THE

PARTIES

Petitioner

People

of

the

Philippines

is

represented

herein

by

the

Office

of

the

Solicitor

General

(*OSG")

pursuant

to Section

35

(1),

Chapter

12,

Title

III,

Book

IV,

Administrative

Code of

1987,

with

office

address

at

No.

134

Amorsolo

Street,

Legaspi

Village,

1229

Makati

City.

Private

complainant

University

of

Mania

("UM")

is

an

educational

institution

duly

organized

and

existing

under

Philippine

laws,

with

office

address

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 lollibee

Plaza,

F. Ortigas,

Jr.

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,

of

Unit

501,

West

Mansion

Condominium,

West

Avenue

Cor.

Zamboanga

Street

L1O4

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,

his 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,

"

Plcasc

sec tlrc OSC's lcttcr

tlatcd 0l Octobcr 2015

to thc

DOJ,

attached

as

Anncx to this

instant Petition's

Vcrilication

and

Ccrtiflcation

Against

Non-Foruru Shopping.



the UM

Board

of

Trustees

included

individuals

who are

not

immediate

members

of

the

Delos

Santos

family.

3.

Pursuant

to the

purposes

under

its

Amended

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

its

own

juridical

personality.

4.

Sometime

in

May 2007,

respondent

Ernesto

L.

Delos Santos

("respondent"), then

being

the

General

Manager 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,

which

is

nearby

or

adjacent

to BPTI.

Consequently,

sometime

in July

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

Buitding.'o

However,

this

without

any

authorization/consent

from

nor knowledge

of

the

UM

Board

of

Trustees.ll

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

Building,

to which

the latter

obeyed.12

Again,

this

was

made

without

any

authorization/consent

from nor

knowledge of

the

UM

Board

of

Trustees.

6.

On

2L

January

2008,

respondent's

father,

Dr.

Virgilio

Delos Santos

("Dr.Virgilio"),

died.

Prior

to his

death,

Dr. Virgilio

was

the Chairman

of

the

Board

of

Trustees and

70.79o/a

controlting stockholder

of

UM.13

7. During

his

period

of

illness, Dr.

Virgilio

was not

in

good

terms

with respondent.

In fact, Dr.

Virgilio

never

reconciled

with respondent until

his death.la

ru

Plcasc scc Policlrpio Lacsa's

Al'tldavit

datcd 07

JLrly

2011,

attachcrl

as Annex

to

UM's Crinrinal

Cornpany, Anncx

"B"

hcrcol.

"

Pleasc sce

Ccrtification

datctl

07

July

20ll issueil try

UM's

Corpolatc Secrctary

Atty. Diosdndo

G. Madritl, attachctl

as Anncx

to

UM's

Crinrinal

Conrplaint, Anncx

"8"

hercot.

l2

I,olicarpit'r Lacsa's

Alfidavit

ilated 07

July 201 l, Strpra..

r3

Pl"as"

scc Anncxcs "2" to"2-C" of rcsponclcnt's

Countcr'-Allltlavit,

Anncx

"C"

hcrcoil

la

Pleose

scc Afllclavit clated 0l

Scptenibcr

200tt of Ma.

Corazon

Rarnona

Llamas Delos

Santos

antl

Sinunrpaang

Salaysay datcd

08

August

20ll of Elccta Dacuan Arovalo attacheil as

Anncxcs

to UM's Reply-Atlidavit,

Anncx

"D"

hereof.



B.

Sometime

in

February

2009,

respondent

instructed

Lacsa

to

connect

the

water

supply

of

CTLL

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

any

authorization

from

the UM

Board

of

Trustees.

9.

At

their

meetings

held

on

18

May

20LI

and

15

lune

2011,

the

members

of

the

UM

Board

were

informed

that

BPTI,

then

under

the

management

of

respondent,

had

incurred

an

operation

net

loss

of

Php717,555.13.

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

respondent

was

diverting

the

guests

of

BPTI

to

his

Dely's

Inn located

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

by the

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.

Worse,

Dr.

De

Leon

was

then

apprised

by

Lacsa

about

the

illegal

water

and

electrical

connections

made by

him upon

instructions

of respondent.16

L2.

Thus,

pursuant

to its

Board

Resolution

dated

15

June

20t7, UM,

through

its

President,

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.

Is

Policarpio Lacsa's Aflitlavit datctl

07 July

201

l,Sttpro..

lo

Plcas"

sec the

Al'lidavit

datccl

07.luly

20ll

of Dr.

Enrily

Dc

Lcon,

attachccl

as Annex to UM's Criminal

Cotuplaint,

Anncx "B"

Ircrcot'.

l'

A

"c,py

of UM's

Criurinal

Cornplaint

with

Anncxcs

is attachctl hercto as Artrlex

"8".



13.

On

28

July

20LI,

respondent

filed

his

counter-

affidavitl8

wherein

he

categorically

admitted

that

he

actually

caused

the

tapping

of

water

and

electricity

from

BPTI

to

his

QTTL

Building.

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

bven

barred

or

prohibited

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

also

pointed

out

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

its

Resolution

dated

29 July

1OLLZo,

the

OCP-Baguio

City

thru

ACP

Opiana

dismissed

the

complaint

for

Qualified

Theft

for

lack

of

probable

cause.

16.

On

19

August

ZALL,

UM

timely

moved

for

reconsideration2l

of

the

Resolution

dated

29

July

zAlL.

On

23

August

ZOLL,

UM

filed

its

Amended

Motion

for

Reconsideration

dated

22

August

20

L",

which

respondent

opposed23.

t7.

In

its

Resolution

on

Review

dated

23

September

2O L'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.

l8

A ct,1-,y

of

rcsponclent's

Cor.rrrtcr-Atl'ldavit

is

attachccl

hcrcto as

Allllex

"C".

l'

A

aolry

of

UM's

Reply-Ailidnvit

witlr

Anncxcs

is attachcd hcreto

as

Altltex

"l)".

20

Plcasc scc

Anncx

"F",

rcspontlcnt's

Petition

trr

Ccrtiolari

dated

l

5 Fcbruaty

20

1

3,

Anncx

"R"

hcreot.

2l

Plcase scc

Anncx

"C",

rcsponclcnt's

Petition

lirr Celtiontri

dated

l5

lrctrt'uat'y

2013,lbid.-

"

A

",,1,y

ol'UM's

Artrcnclcd

Motion

lor

Rcconsitlcration

datctl

22

August

20ll

with Antrcxcs

is

attachetl

hcrcto

as

Attllex

"Bt'.

2r

Pleasc sec Anncx

"[",

rcspondcnt's

Pctition

lirr

Ccrtiorari

clatetl

l5

Fcbt'uaty

2013, Supru..

:{

A

"o1ry

of

tlte OCP-Baguio

City's

Resolution on

Review dated

23 Scptenrber

201

I is attachccl

hcreto as

Annex

"F'n.



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

ludge

Mona

Lisa

V.

Tiongson-Tabora

'

19.

By

virtue

of

the

Warrant

Judge

Tiongson-Tabora,

respondent

Septem

ber

20

1 1

.

of

Arrest26

issued

was

arrested

on

appealed

via

Petition

for

review

OCP-Baguio

CitY's

resolutions,

to

by

27

20.

Meantime,

on

24

October

201L,

respondent

moved

for

reconsideration2T

of

the

OCP-Baguio

City's

Resolution

on

Review

dated

23

September

2011,

which

UM

opposed28.

2L.

Respondent

likewise

moved

for

inhibition2e

of

the

entire

OCP-Baguio

City

from

further

taking

part

in the

proceedings.

This

however

was

denied

by

the-

OCP-Baguio

bity

per

its

Resolution

dated

17

November

201130'

22.

In

its

Second

Resolution

on

Review

dated

23

November

2OLL31

,

the

OCP-Baguio

City

thru

Deputy

City

Prosecutor-In

Charge

Gloria

Caranto-Agunos

denied

respondent's

motion

for

reconsideration.

23.

ResPondent

then

with

the

DOJ

SecretarY

the

which

UM

commented.32

23.1

In

its

recent

Resolution

dated

09

June

201S33,

the

DOJ,

thru

Prosecutor

General

Claro

A.

Arella

no,

dismissed

respondent's

petition for

review.

25

Annex

ttG"

hclco['.

ro

plcn."

scc

Arrncxes

"L" and "M",

respondcnt's

Pctition

lirr

Ccrtiolari

datcd

l5

February

2013,Srrpxr..

17

pl"1rsc

scc

Anncx

"O",

rcspondcnt's

Pctition

fbr Certiolari

datcd

l5

Fcbruary

2013,

Supra..

28A.,.,1ry

ol.UM's

Oppositioir

tlatcd 05

Novcutbcr

201

I with

Attttexcs

is attachctl

hcrcto

as

Anllex

"llo''

'"

p

1"0." scc

Allcx

"P",

r'csponrlcnt's

Pctition

tbr

Ccrtiorari

datctl

I 5

Fcbru ary

2013,

S:.rp

ru..

3u

P l"ase

scc

Alrrcx

"R",

rcspondcnt's

Pctition

lbr

Ccrtiolari

dated

I 5 Fcbru

aly

2013

,

Supxr..

,,A

"n,y

o{.

tlre

oCp-Baguio

City's

Scconcl

Rcsolution

on Rcvicrv

datcd

23

Novcurbct'2013

is altachcd

lrcrcto

as

Allllcx

oolt'.

3r

A

copy ol'UM's

DOJ

Comntent

dntcd

02 January

2012

is

atttohed

ltercto

as

Annex

"J"'

ll

Arrncx

"l("

hct'col.



24.

Meanwhile,

on

03

october

20LL,

respondent

filed

with

RTC-Baguio

City,

Branch

7 an

Urgent

Omnibus

Motion

dated

30

september

2011,

(i)

for

judicial

determination

of

probable cause;

(ii)

to

lift/quash

warrant

of

arrest;

a19

(iii)

to

defer/suspend

-airaignment

and/or

any

proceedings3a.

On

04

October

2011,

respondent

filed

an

Urgent

Supplemental

Motion3s.

25.

In

her

Order

dated

01

February

2OL236

Judge

Tiongson-Tabora

denied

respondent's

sought

declaration

of

lack

of

probable cause,

but

surprisingly

granted

his

motion

to

post

bail

ruling

that

the

instant

Qrulified 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

207237

.

26.

Thereafter,

at

his

scheduled

arraignment

held

on

06

February

2AL2,

respondent

pleaded

"NOT

GUILTY"3B

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

Judge Tiongson-Tabora,

which

respondent

opposed.

In her

Order

dated

05

October 20L2,

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.

34

I,lcas"

scc Arrncx

"T",

rcsponclcnt's

Pctition

lirl Ccrtiolari

dated

l-5 Fctrruary

2013, Supro..

rs

Pl"usc scc

Anncx

"U",

rcsponclcnt's

Pctition

lbr

Ccrtiorari

datcd

I

5

February 2013,

Stpra..

3uA

"c,1ry

of

thc RTC-Baguio

City,

Branch

7's

Ordcr clatccl 0l

Fcbruary

2012is

attachccl

het'cto as

Annex

"L".

l7

Annex

"N'1"

hclcol.

'tsAnnex

"N"

hereof.

t"A,,,rc*cs

"V"

antl

"W",

r'cs1;ondcnt's Petition

firr

Ccrtiorari

clatcd l5

Febluary

2013, Supro..

A

copy of UM's

Motion

lilr

Partial Rcconsidcration

is attachctl hcrcttt

as

Atlnex

"O".

{uAturg,

"P"

het'cof'.

l0



29.

Subsequently,

Judge

Claravall

issued

his

Order

dated

07

December

207,241,

the

dispositive

portion

of

which

reads:

*WH

EREFORE,

all

the

foregoing

premises

considered,

the

Motion

for

Partial

Reconsideration

filed

by

the

accused

Ernesto

delos

Santos

is

DENIED

for

tack

of

merit.

However,

the

Motion

for

Partial

Reconsideration

filed

by

the

Private

Complainant

is GRANTED.

The

Order

of

the

Court

dated

February

l,

20LZ

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'

L275OB7

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

warrant

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 a

Hold

Departure

Order

against

him.

This

Judge

Claravall

granted

in

its Order

dated

13 February

2013.

31.

Respondent

then

filed with

the

Court

of

Appeals

a

petition

for

certiorari

under

Rule

6542

dated

15

February

2OL3

seeking

the

nullification

of

RTC-Baguio

City,

Branch

7's

Order

dated

01

February

20LL 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.

32.

Thereafter,

in

compliance

with the

CA

Resolution

dated

22

March

2013, UM

commenteda3

to

respondent's

certiorari

petition.

Respondent

then

moved

to

admit

his

replyaa

to UM's

comment,

which

UM opposed.as

''A

"o1',y

o{'RTC-Baguio

City,

Branclr

(r0's

Ortlcrdatcd

07 Dcccurbcr

2012is attachcd

ltcrcto

as

Annex

"Q"

o'Arrrr"*

ttlt"

hcrcot.

{3

Anrte*

"S"

hcrcot.

44

A,rrra,

ttTtt

lrercof.

"

Arrna*

"Utt

hcrcof'.

lt



33.

On

30

July

201.3,

the

court

of

Appeals

[special

Tenth

Divisionl

unanimously

issued

its

Decisiona6,

the

dispositive

portion

of

which

reads:

*WHEREFORE,

the

instant

Petition

is

DENIED.

The

Order

dated

December

7,

}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

[Special

Tenth

Division],

which

UM opposed.

35,

Subsequently,

respondent

moved

for

reconsiderationaT

of

the

CA

Decision

dated

30

July

2013.

UM

then

filed

its

comment/oppositiona8

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

2O 4,

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,

ofl

05

March

2014,

the

Court

of

Appeals'

[Former

Special

Tenth

Division]

Justices

Acosta,

Lampas

Peratta

and

Antonio-Valenzuela

inhibited

from

further

handling

the

case.

46

Anrrex

o'Vt'hcrcof.

4'

A,ru"*

"147"

hcl'col.

'8

A,rrr"*

"X'o

lrcreol'.

4'

Art,r"*

"Y"

ltcrcof.

50

C,.,py

of

thc

RTC

-

Baguio

City,

Br.anch

(r0's

Prc-Tlial

Ordcr clatctl

2(r Februaly

2014

is

attachecl

hcrcto

as

Annex

,,D'

,

t2



38. The

case

was

thus

re-raffled

to

the

CA

Fourth

Division.

SurprisinglY,

voting

3-2,

the

Court

of

Appeals

[Fourth

Division-Division

Five]

issued

its

Amended

Decision

dated

21

November

20

4t',

the

dispositive

portion

of

which

reads:

*WHEREFORE,

Premises

considered,

petitioner's Motion

for

Reconsideration

is

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

20L4,

UM

timely

reconsiderationsz

of

the

said

Amended

Decision

November

2014,

which

respondent

opposed.s3

moved

dated

for

2L

40. On

28

August

2015,

the

court

of

Appeals

IFormer

Fourth

Division

-

Division

of

Fivel

,

dgdn

voting

3-2,

denied

UM's

motion

for

reconsideration.sa

HENCE,

THIS

PETITION.

GROUNDS

FOR

ALLOWANCE

OF

THE

PETITION

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

2L

NOVEMBER

2OT4

AND

RESOLUTION

DATED

28

AUGUST

20L5,

IN

THAT:

IN

CRIMINAL CASES,

THE

TRIAL

COURT

HAS

THE

EXCLUSIVE

ORIGINAL

]URISDICTION

TO

TRY,

t'

Plcas" scc

Arrrrcx

"A"

hcrcol.

tt

Annex

"AAo'hclcof.

5l

Anrre*

'oBB"

hcrcot'.

t4

Pl"n."

sec Anrrcx

"A-1"

hcreot..

1.

t3



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

DIVISION

OF

FIVEI

MAIORITY',S

FIN

DINGS

OF

*IMPLIED

AUTHORITY,"

BONA

FIDE

BELIEF

OR

GOOD FAITH,

AND

LACK

OF

INTENT

TO

GAIN

HAVE

NO

FACTUAL

AND/OR

LEGAL

BASIS.

II

rHE

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.

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

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]

MAJORITY'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

HIGHLY

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,

IFoRMER

FOURTH DTVTSTON

DIVISION

OF

FIVE]

MAJORITY'S

CONCLUSIONS

3.

4.

l5



ON

IMPLIED

AUTHORITY,

BONA

FTDE

BELIEF

OR

GOOD

FAITH,

AND THE

ABSENCE

OF

THE

ELEMENT

OF

INTENT

TO

GAIN

THAT

WERE

USED

TO

OVERTURN

COURTS'

THE

TRIAL

FINDING

OF

5.

PROBABLE

CAUSE,

ARE

INAPPROPRIATE

IN

THE

CERTTORARI

PETITION.

THE COURT

OF

APPEALS'IFORMER

FOURTH DIVISION

_

DIVISION

OF

FIVE]

MAJORITY'S

EXCULPATING

CONCLUSIONS

SOLELY

UPHOLDING

RESPONDENT'S

DEFENSES OF

DR.

VIRGILIO'S

PURPORTED

CONSENT

TO

TH

E

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

N OT

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

GROUN

DED U PON

TH

E

FOLLOWING:

A.

AS

CONCLUSIVELY

ADMITTED

BY

HIM

IN HIS

COUNTER-

AFFIDAVIT,

RESPONDENT HAD

CAUSED

THE

TAPPING

OF AND

DIVERTED WATER

AND

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

THE

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.

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

RULING IN

PEOPLE

OF

THE

PHILIPPINES

VS, HU

RUEY

CHUN

(G.R.NO.

158064.30 JUNE

2005;

462 SCRA

499

,510-

5

1

5)

AN

D

I7



OTHER

ESTABLIS

H

ED

]

U

RISPRU DENCE,

TH E INSTANT

CRIMINAL

CHARGE

AGAINST

RESPONDENT FOR

QUALIFIED

TH

EFT

IN

TH

E

AMOU

NT

OF

PHP3,OOO,OOO.OO

PER SE IS

A NON.

BAILABLE OFFENSE,

AS

THE

PENALTY THEREFOR

IS

RECLUSION

PERPETUA 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

TH E

SU

BJ

ECT CHARGE OF

QUALIFIED

TH

EFT

WH

ERE

TH

E

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

2L

NOVEMBER

2OL4

AND

RESOLUTION

DATED

28

AUGUST

20L5, IN

THAT:

In Viudez

ff vs,

Court

of Appealsss,

this Honorable

Court had explicitly

explained:

"It

is

well to remember

that

there

is

a

distinction

between the

preliminary inquiryr

which

determines

probable

cause

for

the

issuance

of

a

warrant

of arrest;

and

the

preliminary

investigation

proper,

55

C.R.

N,r.

I-s2t189.

05 .lune

2009;

588 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

wou

ld

j

ustifY

conviction."

(

E m

phasis

in

bo

ld

supplied)

t9



Corollary,

in

Serapio

vs.

Sandiganbayaf,'u,

this

Honorable

Court

had

unequivocally

stated:

"Absent

any

showing

of

arbitrariness

on the

Part

of

the

prosecutor

or

any

other

officer

authorized

to

conduct

preliminaty

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

Peopte

vs.

Teeu',

this

Honorable

Court

had

emphaticallY

decreed:

"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

searche

d."

(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

causJ

fo.

issuance

of

warrant

of

arrest

is

amply

supported

by

sufficient

facts

and

evidence,

the

5t'

C.R.

No.

14tt769.

28 January

2003;

396

SCRA

45u,

468-469'

57

G.R.

No.

14054(t-4'1

.20

January

2(X)3;

395 SCRA

419,

437-438



appellate

in a

mere

court

cannot

interfere,

let

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

pr:onunt"

cause

against

respondent

for

Qualified

Theft,

ratiocinating

:

t'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

?ather

is

barred

and

prohibited

under

the

"Dead

Man's

bt"tut""

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

?try,

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

2O1O;

he

aPPlied

with

and

was

granted bY

the

Baguio

Water

District

water

service

connection

for

his

CTLL

building

but

apparentty

did

not

Push

through

2l



with

it

for

the

obvious

reason

that

he

could

get electricitY

and

water

from

the

gPff

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

mijoritY

of

the

board

of

directors

of

the

UM.

ClearlY,

AttY'

Delos

Santos

has

fallen

to

present, 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

corporation

law

bY

the

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

inc-orPorated

as

a

close

corporation.sB

xxx

XXX

(Emphasis

in

bold

suPPlied)

XXX.,,

t*At

pp.

2-3,

Annex

"F" hercof

22



Thereafter,inresolvingrespondent,smotionfor

reconsideration,

il","

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

2011,

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

Ueing

alreadY

dead,

there

is

no

way

for

him

(Dr. Virgilio

D'

Delos

Santos)

to

confirm

respondent-

movani'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.

Further,

the

declarations

of

witnesses

Dr.

Maria

Corazon

Ramona

Ll.

Delos

Santos

and

UM

23



employee

Electa

D'

Arevalo

would

r..io.tslY

negate

respondent-

movant'i

allegition

of

consent

bY

his

late

fathei

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,

atl

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

bdcause

them

ore

his

death

will

be

accelerated

due

to

the

stress

in

seeing

them

instead

of

him

,""or-ering.

THUS,

WITH

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

IT

TO

CTLL

BUILDING,

ALSO,

IT

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

WATER

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

2L,2008.

Yet,

he

did

not

at

i.y

time

thereafter

ever

seek

such

required

consent

and

authority

from-the

Board

of

Trustees

of

UM'

Also,

the

fac

that

the

Board

of

Trustees

of

U

M

has

alreadY

exPresslY

Pointed

ot'l

and

acted

against

his

aPParent

conf

lict

of

interest

in

his

management

of

BPTI

and

subject

to

verification

his

unauthorized

tapping

and

use

of

electricitY'

*"i.tr-und

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

15,

}OLL

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

wiitr the

Baguio

Water

District

for

his

CTLL

building.

THE

INEVITABLE

FINDING

THAT

CAN

BE

HAD

UNDER

THE

CIRCUMSTANCES

I5

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

can

consent

for and

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

p".sonality

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

iawfully

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



that

while

he

was

the

manager

anq

oPerator

of

the

establishment'

and

being

then

a

stockholder

and

,rr"--b.roftheBoardofTrusteeof

the

comPlai

nant

U

niversitY

of

Manila

whlch

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

CrLl

building

and

DellY's

Inn

which

is

housed

therein

was

Paid

for,

not

bY

him

or

his

later

father

Dr.

Virgitio

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

(Emfhasis

in

capital

and

bold

supplied)

on

respondent's

appeal

via

petition

for

review,

the

DOJ,

thru

Prosecutor General

claro A.

Arellano,

affirmed

in

its

Resolution

dated

0B

June

2015

such

probable

cause

finding

of

the

OCP-Baguio

City,

holding:

"This

resolves

the

petition for

review

of

the

"Resolution

on

Review",

as

well

as

the

"second

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.

s"At

1r1r.

l4-l(r,

Annex

"l" lrcrcof.

27



WE

HAVE

JUDICIOUSLY

REVIEWED

THE

RECORDS

OF

THIS

CASE

VIS-A.WS

THE

ARGUMENT

IN

RESPONDENT.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

1'2

of

Department Circular

No' 70

dated

July

3'

2000,

this

petition

may

be

dismisse

m9,tu

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

20L2,

founO

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"Anncx

"l("

hcrcof

28



and

water

from

the

Benguet

Pines

Tourist

Inn

(BPTI)

which

is

owned

by

the

University

of

Man-ila.

(UM)

to

the

CTLL

building

which

he

owns

withouttheconsentofapprovalof

theBoardofUM'Liketheinvestigating

prosecutor,

the

Court

finds

that

the

defense

relied

upon

bY

the

accused'

that

is,

that

the

taPPing

'nq

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

couldnotpossiblyconfirmtheclaim

of

the

self-serving

allegation

of

the

accuse

6.n6t

(Emphasis

in

bold

supplied)

subsequently,

ruling

on

respond-ent's

motion

for

partial

reconsideration

oi'tt'l"

order

dated

01

February

2072,

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:

'tThe 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

also

defined

as

such

facts

as

are

sufficient

to

engender

a

well-founded

belief

that

a

crime

has

been

committed

t"

At

1,.

2, Arrncx

"L"

lrcleol.

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

Appeals

[Special

Tenth Division]

in

its

30

July

2013 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"

hcrcol.

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

CorrrMrrrED

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

(Emphasis

in

XXX

XXX,,

capital

and

bold

suPPlied)

Despite

such

sound

disquisitions,

_the

court

of

Appeals

IFormer

Fourth

Division-Division

of

Five]

nonetheless

iur"rr"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

certiorari

jurisdiction

in

issuing

its

assailed

split

3-2

Amended

Decision

and

Resolution,

in

that:

otAt

1r1.,.

l0-12,

Anncx

"V"

hcrcot

31



1.

IN

CRIMINAL

CASES,

THE

TRIAL

COURT

HAS

THE

EXCLUSIVE

ORIGINAL

]URISDICTION

TO

TRY,

HEAR

AND

RESOLVE

CONFLICTING

FACTUAL

ISSUES,

EXCEPT

IN

ORDINARY

APPEAL,

THIS

POWER

CANNOT

BE

ARROGATED

BY

THE

COURT

OF

APPEALS

IN

A

M

ERE

CERIIORAR/

PETITION.

In criminal

cases,

the

trial

court

has

the

exclusive

original jurisdiction

to try,

hear

and

resolve

the

parties'

conflicting

factual

issues.

This, upon

its due

determination

of

probable

cause

vis-d-vis

the

issuance

of

the

corresponding

warrant of

arrest.

This

power

cannot

be

arrogated

by

the

appellate

court

in a

mere

certiorari

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.

AHEAD

OF

TRIAL

ANd

WORSE,

IN

A

MERE

CERTIORARI

WHERE

THE

ISSUE

IS

MERELY

*GRAVE

ABUSE",

the Court

of

Appeals'

[Former

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'

IFormer

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

ASIDE BY THE

OCP

-

BAGUIO

CTTY

/

DOJ AND

THE RTC

BAGUTO

CrTY,

BRANCH

7

AND 60

AS DEFENSIVE

TRIABLE

ISSUES

OF

FACT;

AND

32



c.

HELD

BY

THE

COURT

oF

APPEALS',

[SPECIAL

TENTH

DIVISIONI

AS

*MATTERS

OF

DEFENSE

BETTERAIREDDURINGTHETRIALPRoPER".

clearly, in

resolving early

the

contested

factual

issues,

the

Court

of

Appeals

[n-ormei

Fourth

Division

Division

of

Fivel

had

thereby

acteO

as

if

it

was

a

trial

court,

and

worse

went

beyond

its

certiorari

jurisdiction'

In

point, in

Marcos-Araneta

vs,

Court

ot

ayyealsla,

this

Honorable

Court

had

decreed

that

the

Court

of

Appeals'

in

its

exercise

of

its

certiorari

jurisdiction

under

Rule

65,

is

limited

to

reviewing

and

correcting

errors

of

jurisdiction'

eruditely

exPlaining:

"

Clea

rlY

the

n,

TH

E

CA

OVERSTEPPED

ITS

BOUNDARIES

WHEN,

IN

DISPOSING

OF

PRIVATE

RESPONDENTS'

PETITION

FOR

CERTIORARI,

IT

DID

NOT

CONFINE

ITSELF

TO

DETERMINING

WHETHER

OR NOT

LACK OF

JURISDICTION

OR

GRAVE

ABUSE

OF

DISCRETION

TAINTED

THE

ISSUANCE

OF

THE

ASSATLED

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'

334L-t7

and

3342-17

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.

N,,.

15409(r.

22 Augtrst

200til

5(rl

SCRA'

4l

'

58--59'

JJ



asserted

trust

is

implied

or

express.

To

be

sure,

an

express

trust

differs

from

the

implied

varietY

in

terms

of

the

manner

of

proving

its

existence.

Surely,

the onus of

factuallY

determining

whether

the

trust

allegedly

established

in

favor

of

Irene,

if one

was

indeed

established,

was

implied

or

express

properly

Pertains,

at

the

first

instance,

to

the

trial

court

and

not

to

the

aPPellate

court

in a

sPecial

civil

action

for certiorari,

as

here.

In

the

absence

of

evidence

to

Prove

or

disprove

the

constitution

and

necessarily

the

existence

of

the

trust

agreement

between

lrene,

on

one

hand,

and

the

Benedicto

GrouP,

on

the

other,

the

aPPellate

court

cannot

intelligently

pass

upon

the

issue

of

trust.

l\

Pronouncement

on

said

issue

of

trust

rooted

on

speculation

and

conjecture,

if

properly

challenged,

must

be

struck

down,

So

it must

be

here"'

(EmPhasis

in

bold

supplied)

Contrary

to

the

Court

of

Appeals'

_[Former

Fourth

Division

-

Division

of

Five]

majority's

stanceuu,

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

trial

courts

had

gravely

abused

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 already

ruled

in favor

of

accused-

respondents'

controverted

factual

defenses.

This

logically

presupposed

the

weighing

of

the

parties'

evidence

and

determining

the

credibility

of

parties'

respective

witnesses,

which

however

were

highly

inappropriate

and

improper

at

this

stage

of

the

proceedings.

t'5

At

p.

-j,

Anncx

"A-1"'hcrcof

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

AND/OR

LEGAL

BASIS.

As

the

ocP-Baguio

city/Dol,

the

RTC

Baguio

city,

Branch

7

and

60

and

the

3-0

unanimous

Court

of

Appeals

[Special

Tenth

Division]

had

spoken

on

the

existence

of

[robable

cause

against

respondent,

it

then

behooved

upon

tf-l*

Court

of

Appeals

IFormer

Fourth

Division

Division

of

Fivel

to

heed

their

call.

This,

as

such

determination

of

probable

cause

is

well

grounded on

palpable

valid

tacts,

albeit

contested

by

respondent.

This

matter

of

exercise

of

discretion

ought

have

been

the

only

issue

in

the

certiorari

petition.

Specifically,

on

the

matter

of

grave

abuse

only.

It cannot

go

beYond.

Accordingly,

the

split

3-2

Amended

Decision

dated

2t

November

2OL4

and

Resolution

dated

28

August

2015

upholding

respondent's

factual

propositions

and

therefore

reversing

tlre

RTC

Baguio

City,

Branch

7

and

60

judicial

finding

of

probable

cause

for

issuance

of

warrant

of

arrest

against

accused

respondent,

and

the

Court

of

Appeals'

[Special

Tenth

Division]

3-0

unanimous

Decision

dated

30

July

2013,

is

UNPROCEDURAL.

It

resolves

substantive

issues

in an

improper

and

inappropriate

manner,

divesting

and

skipping

the

original

and

exclusive

jurisdiction

of the

trial

court

to

hear,

try

and

decide

factual

issues.

II

THE COURT

OF

APPEALS'IFORMER

FOURTH

DIVISION

-

DIVISION

OF FIVE]

MAJORITY

GRAVELY

ERRED

IN

REVERSING

TH

E

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

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

THAT

IT

WAS

HIGHLY

IM

PROBABLE,

IF

NOT

IMPOSSIBLE,

CONSIDERING

TI-{E

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.

In

its

assailed

Amended

Decision,

the Court

of

Appeals

IFourth

Division

Division

of

Five]

seemed

to

have

supposed,

albeit

erroneously,

that

respondent's

father

Dr.

Virgilio

had

consented

to his taking

of

water

and

electricity

from

UM's

BPTI

to

his CTLL

Building,

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

with

the

consent and

imprimatur

of

his

father,

Virgilio,

who was

at

that

time

the

majority

stockholder

and

President

and

Chairman

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

give

such

consent

on

behalf of

the

latter."66

Despite

private

complainant

UM's

pointed

argument

in

its

motion

'for

reconsideration

against

such

erroneoUs

supposition,

the

Court

of

Appeals

[Former

Fourth

Division-

Division

of

Fivel

did

not

even

bother

to

explain

the

same

in

its

Resolution

dated

2B

August

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

his

father

who

was at

that

time

the

majority

stockholder

and

President

and

Chairman

of

the Board

of

Trustees

of

UM.

Virgilio

Delos Santos

gave

his

consent

to

his

son

(herein

petitioner) to use

BPTI's

electricity

and

water supply

in

2007.

Thereafter,

and

until

Virgilio's

death

in

2008,

the Board

of

Trustees

of UM

did

not

object

to

or

repudiate

said

consent."67

RECORDS

WOULD

HOWEVER

SHOW

THAT

FI\R

FROM

BEING

A SETTLED

FACTUAL

ISSUE,

RESPONDENT'S

FACTUAL

ALLEGATION

THAT

HIS

FATHER

DR.

VIRGILIO

HAD

CONSENTED

TO

HIS

TAKING

OF

WATER

AND

ELECTRICITY,

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

Roelo

[src])

would

negate

any

such

consent

by

Atty.

Virgilio

de

los

Santos

to

the

tapping

of

electricity

and

water by

Atty. Ernesto

de

los

Santos.

Said affiant

stated:

uo

At

1',.

B,

Annex

"A"

hcrcol'.

t"

At

1,.

(r

Annox

"A"-1"

hcrcol'.

5t



'11.

Noong

MaY L3,

2003

siYa

(referring

to

Virgilio

de

los

Santos)

ay

mahospital

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

bibisitahin

siya

ng kanyang

.

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

dapat 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

38



to

whatever

he

(Ernesto)

wants

to

do

there?

It

would be

very

funnY

a

nd

indeed

rid

icu lous

for

the

subordinates

to

be authorizing

their

boss

to

tap

electricity and

water.

This

is

really

against

the

everyday

experience

of mankind

and

belongs

to

the

miraculous.

Fu

rthermore,

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.

J)'."oe

(Emphasis

in

bold

supplied)

IN FACT, in its

comment

to

respondent's

CA

petition

for

certiorari,

UM had

categorically

asserted:

"Furthermore,

it is extant

from

the

affidavits

executed

by

Electa

D.

Arevalo

and

Ma.

Corazon

Ramona

Ll.

Delos

Santos

that the

relationship

of

petitioner

and

his

deceased

father

had already

soured

prior

to the death

of

the

latter.

The

alleged

consent

given

by

petitioner's

deceased

father

is therefore

highly

dubious.

In the natural

order

of

things,

persons

whose

relationship

is

estranged

would

necessarily refuse

to

give

consent

or extend benefit

to the

other. Interestingly,

petitioner

had failed

to refute, hence

deemed

to have

admitted

such

fact."6e

t't

At

1lp.

(r-7,

Annex

"ll"

hcrcof.

t"'

At

pp.

22-23,

Annex

"S"

Irercol.

39



IF

AT ALL,

FAR

FROM

BEING

SETTLED

AS

THE COURT

OF

APPEALS'

IFORMER

FOURTH

DIVISION

DIVISION

OF

FIVE]

MAJORITY

HAD

ERRONEOUSLY

SUPPOSED

IT TO

BE,

WHETHER

OR

NOT

DR.

VIRGILIO

HAD

CONSENTED

TO

RESPONDENT'S

TAKING

OF

WATER

AND

ELECTRICITY,

IS

CLEARLY

A

HOTLY

DISPUTED

AND

CONTESTED

FACTUAL

ISSUE

RESOLVABLE

ONLY

VIA

FULL

BLOWN

TRIAL.

2.

THE

COURT

OF

APPEALS'

IFORMER

FOURTH

DIVISION

DIVISION

OF

FIVE]

MA]ORITY'S

SWEEPING

CONCLUSION

THAT

THE UM

BOARD

HAD

THEREBY

IMPLIEDLY

AGREED

OR

NCQUIESCED,

IS

HIGHLY

INAPPROPRIATE

AS

THE

TRIAL

COURT

HAS

NOT

FACTUALLY

RULED

THEREON

YET.

The

Court

of

Appeals'

IFourth

Division

Division

of

Fivel

majority

further

asseverated

in its

Amended

Decision:

"Virgilio, with the

acquiescence

of

the

Board

of

Trustees

of

UM,

gave

his

consent

to

the

petitioner

to

use

BPTI's

electricity

and

water

supply

in

2007.

Thereafter,

and

until

the death

of

Virgilio

in

2008,

the

Board

of

Trustees

of

UM

did

not

object

to

or

repudiate

the

said act

of

Virgilio,

In other

words,

the

Board

did

not

put

an

end

to

this

arrangement

wh

ich

cou

ld

g

ive

it

sufficient

ground

to file

a

criminal

case

against

the

petitioner

of

the

latter

continued

to use

that

water

suPPIY

despite

the

clear

prohibition

by

the

Board of

Trustees

of

the

university.

It

was

only

in

20tL,

when

petitioner

and

Cynthia

opposed

the

Probate

proceedings

of

the estate

of

their

father

initiated

by their

sister

Ramon

[sic]

and

when

there

was

already

a

serious

corporate

squabble

between

and

among

40



the

members

of

the

Board

of

Trustees

of

UM

that

a

complaint

for

qualified

theft

was

filed

against

the

petitioner

as

We

note

in this

case.

If

the

Board

of Trustees

of

UM

trulY

believed

that

Virgilio

had

no

authority

to

give

consent

on

its behalf,

it

could

have

overturned

and

nullified

his

decision

to

allow

the

petitioner

to

use

the

electricity

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

supply

during

the lifetime

of

Virgilio, and

even

immediately

thereafter,

clearly

manifests

that

it

acquiesced

to

Virgllio's

giving

of

consent

to the

petitioner."T0

In its assailed

Resolution

dated

28

Court

of

Appeals'

[Former

Fourth

Division

majority

then

merely repeated:

Aug

ust

2OL5

,

the

-

Division

of

Fivel

"The

Board

of

Trustees of

UM

could

have

easily overruled

and

nullified

Virgilio's

decision

to allow

the

petitioner

to

use

its

electricity and

water supply

in

Baguio

City.

The

fact

that

the

Board

of

Trustees

of

UM

did

not

prevent

the

petitioner

to

continue

to openly

use

its electricity

and

water

supply during

the

lifetime

of

Virgilio, and

even immediately

thereafter

lasting

for

four

years,

clearly

manifests

that

it

acquiesced

to

Virgilio's

giving

of

consent

to

the

petitioner.

It

was only

after

a serious

family/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

public

as

possessing

power

to do

those acts,

the

corporation

will,

as

against

'"

At

1r1r.

8-9, Anrrcx

"A"

hercou

41



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

from

practice.

Its

existence

may be

ascertained

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

2)

the

acquiescence

in

his acts

of

a

particular

nature,

with

actual

or

constructive

knowledge

thereof,

within

or

beyond

the

scope

of

his

ordinary

powers.

Virgilio's

apparent

authority

to

juggle

the

funds

of UM

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

mistress

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

now deny

and

repudiate

the

legal

effect

of

Virgilio's

consent

given

to the

petitioner

to

use

the

electricity and

water

supply

of

BPTI."71

Again,

the

Court

of

Appeals'

IFormer

Fourth

Division

Division

of

Fivel majority

had

accepted

hook,

line and

sinker

respondent's allegations

in

his CA

certiorari

petition

and

motion

for

reconsideration.

IT

TREATED,

ALBEIT

UNPRoCEDURALLY,

RESPONDENT',S

ALLEGATTONS

AS

UNDISPUTED

GOSPEL

TRUTHS.

''

At

pp-

(r-7,

Anrrcx

"A-1"

hclcof'.

42



SUCH

ALLEGATIONS

WERE

HOWEVER

CATEGORICALLY

CONTRADICTED

BY UM.

PER

THE

SUFFICIENT

DOCUMENTARY

AND

CONTROVERTING

AFFIDAVIT

EVIDENCE

SUBMITTED

BY

UM

DURING

PRELIMINARY

INVESTIGATTON, 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

ACQUTESCED

TO

RESPONDENT,S

TAKING;

AND

(iii)

RESPoNDENT

WAS

THE

GENERAL

MANAGER

OF

UM'S

BPTI

AND

oFFrCER/STOCKHOLDER

OF

UM

AT

THE

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'

IFormer

Fourth

Division

-

Division

of

Fivel

majority's

factual

findings

are

even

bereft

of

any

factual

and

legal

bases.

It

bears

stressing

that:

1)

THE

UM

BOARD

OF

TRUSTEES

HAD

DISCOVERED

RESPONDENT

SURREPTITIOUS

TAKING

ONLY

SOMETIME

IN

JUNE

aOIL,

FOR

WHICH

THEY

IMMEDIATELY

RESOLVED

TO INITIATE

A

QUALIFIED

THEFT COMPLAINT

AGAINST

RESPONDENT

IN

JULY

20LL72.

2) RESPONDENT

WAS

ABLE

TO CONCEAL

THrS

ILLEGAL

TAKING

AND

THEFT

OF

WATER

AND

ELECTRICITY

AS

HE WAS

THE GENERAL

MANAGER

OF

UM'S

BPTI

WHEN THE

SUBJECT

ILLEGAL

WATER

AND

"l,lcasc

scc

thc Ai'lirlavits

o1'UM's

incurnbcnt Plcsiclcnt

Dr. Enrily

D. Dc Lcon

antl Policar?io

M.

Ltcsa, antl UM's

Cor'ltolntc

Sccrctary

Atty. Diosdado

G. Madlirl's Ccrtitication,

attachctl

as Atrttcxcs

to UM's

Cotnplaint,

Annex

"B"

'lrcrco1.

43



ELECTRICAL

CONNECTIONS

WERE

TAPPED

FROM

UM'S

BPTI

TO

RESPONDENT'S

CTLL

BUILDING

IN

2OO7

UNTIL

RESPONDENT

WAS

REMOVED

AS

SUCH

ON

15

JUNE

2O11.

3)

FAR

FROM

BErNG

*OPENLY"

AS

THE

COURT

oF

APPEALS',

[FOURTH

DTVTSTON

DIVTSTON

OF

FIVEI

MAJORITY

HAD

SPECIOUSLY

CHARACTERIZED

RESPONDENT'S

TAKING,

THE

PICTURES

OF

THE

SUBJECT

ILLEGAL

WATER

AND

ELECTRIC

CONNECTIONS

WOULD

SHOW

THAT

THE SAME

WERE

CONSPICUOUSLY

HIDDEN

FROM

THE

PUBLIC,

INCLUDING

BPTI'S

EMPLOYEES,

TO

AVOID

DETECTION.T3

Apart

from

being

PRoCEDURALLY

INAPPROPRIATE,

the

Court

of

Appeals'

IFormer

Fourth

Division

Division

of

Fivel

majority's

factual

findings

even

ahead

of

trial

that

the

UM

Board

of

Trustees

had

impliedly

agreed

or

acquiesced

to

respondent's

subject

taking,

is

BELIED

BY

THE

RECORDS.

3.

CONTRARY

TO

THE

COURT

OF

APPEALS'

IFORMER

FOURTH

DTVISION

-

DIVISION

OF

FIVEI

MAJORITY'S

SPECIOUS

TH

EORY,

RES

PON

DENT'S

ALLEGATIONS

ON

DR.

VIRGILIO'S

ALLEGED

CONSENT

AND

THE

UM

BOARD'S

IMPLIED

ACQUIESCENCE

ARE

HIGHLY

DISPUTED

FACTUAL

MATTERS

THAT CAN

O

N LY

BE

VENTILATED

AND

RESOLVED

I N A

FU

LL BLOWN

TRIAL

BEFORE

THE

TRIAL

COURT.

A

FORTIORI,

contrary

to the

Court

of

Appeals'

[Former

Fourth

Division

Division

of

Fivel

majority's

sweeping

conclusion,

the

alleged

consent

of

Dr.

Virgilio

to

respondent's

taking and

the

correlative

UM

Board

of

Trustees'

purported

implied

acquiescence

therefor,

are

highly

disputed

factual

matters

that

can

only

be

ventilated

and

resolved

in a full blown

trial

before

the

7r

l'lcasc

scc

Ar.rncxcs

"5","5-A"

and

",5-8",

UM's

DO.l Cottrnrcttt, Atrncx

".1"

hcrcofl

44



trial

court.

DefinitelY,

the

Court

of

l\ppeals

I

Former

Fourth

Division

Division

of

Fivel

cannot

put

finis

to

such

controversial

factual

issues

on

a

mere

petition

for

certiorari,It

is

contrary

to

the

existing

procedural

rules

and

settled jurisPrudence'

Rightly

so,

in

its

order

dated

07

December

20 2,

the

RTC-Baguio

City,

Branch

60

had

concluded:

"xxx 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

."'o

(Emphasis

in bold

supplied)

Also,

in

its

Decision

dated

30

July

20L3,

the

Court

of

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

q

ua

lified

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

7'l

At

1r.

2, Anncx

"Q"

hcrcof'.

45



are

properly

addressed

blown

trial.Ts

inafull

XXX

XXX

(Emphasis

in

bold

suPPlied)

XXX,,

4. AS

A

MATTER

OF

PROBABLE

CAUSE,

AS

BETWEEN

RESPON

DENT'S

DEFENSIVE

CLAIM

VERSUS

UM'S

CONTRA,

THE

TRIAL

COURTS'

FINDING

OF

PROBABLE

CAUSE

MUST

PREVAIL.

Settled

is

the

rule

that

in

determining

the

existence

of

probable cause,

certainty

of

guilt

is

not

required

'

It

is

sufficient

that

the

pieces

of

evidence

as

presented

would

excite

a

reasonable

belief

that

the

crime

charged

is

committed

and

that

the

respondent

is

probably

guilty

thereof.

In

Metropolitan

Bank

&

Trust

Company

vs.

Gonzal@s'6,

this

Honorable

Court

thus

ruled:

"x x x

Probable

cause

is

a

reasonable

ground

of

presumption that

a

matter

is,

or

may

b€,

well

founded

on

such

a

state

of

facts

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

does

not

mean

"actual

or

positive

cause"

nor does

it

imPort

absolute

certainty.

It

is

merely

based

on

opinion

and

reasonable

belief.

Thus,

a

finding

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

charged,"

(Emphasis

in

bold

supplied)

As a

matter

of

probable

cause,

as

between

respondent's

defensive

claim

versus

UM's

contra,

the

RTC

-

TsAt

1-,.

I

l,

Anncx

"V"

hercof.

7t'G.R.

No.

ltlOl(r-5. 07 April

2009; 584

SCRA

(r3

l,

(r40-(r4l

citing

Pilupil vs.

Sundigonbnvrrr,

G.R.

No.

l0l97ti' 07

April

1993;221

SCRA 149,360.

46



Baguio

City,

Branch

7 and

60's

finding

of

probable cause

m ust

preva

il

.

As

eloquently

pointed

out

by

CA

Justice

Marlene

Gonzales-Sison

in

her

dissenting

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

I\LSO

ADMITTED

THAT

THIS

WAS

WITHOUT

ANY

AUTHORIZATION

FROM

U.M.,S

BOARD

OF

TRUSTEES.

In

my

opinion,

SUCH

ADMISSION

MUST

LEAD

TO

THE

CONCLUSION

THAT

PETITIONER

PROBABLY

COMMITTED

QUALIFIED

THEFT.

THE

ACTS

DETAILED

IN THE

ADMISSION

COMPLETES

ALL

THE

ELEMENTS

OF

QUALIFIED

THEFT,

AND

SUPPORTS

THE ALLEGATIONS

OF

THE

PRIVATE

RESPON

DENT.

"

Petitioner's

admission

admits

the

following:

first, there

is a

taking

of

personal property,

that

is

electricity

and

waterl 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

a

nd electricity,

wh

i le usi

ng the

same;

fourth, that

there

was no

consent

by

the

owner,

in this

case,

private

respondent U.M.

acting

through

its board of trustees,

to

the

taking;

fifth, that

petitioner

accomplished

the deed

without

resort to

violence

or

force

upon

47



th

i ngs,

beca

use

a

lleged

IY,

h

is

tapping

was

with

the

Permission

of

his

late

father;

and

sixth,

that

there

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

BPTL

He

presents

witnesses

which

may

corroborate

the

grant

of

authority.

HOWEVER,

AT

THIS

STAGE

OF

THE

PROCEEDTNGS,

rr

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,

TH

E

HYPOTH

ETICAL

TRUTH

OF

THEIR

STATEMENTS

WOULD

STILL

NOT

CHANGE

THE

FACT

THI\T

U.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

the

majority,

I find

THAT

THESE

DEFENSES

CANNOT

BE

VALIDATED

AT

THrS STATE.

ONCE

MORE,

THEY

ARE

ALREADY

EVIDENTIARY

IN

NATURE;

SUCH

STATEMENTS

REQUIRE

THE

PRESENTATION

OF

WITNESSES

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

THI\T

HrS

FATHER

WAS

EXTRAORDINARY

GENEROUS

TO HIS

CHILDREN.

UNFORTUNATELY,

THESE

DEFENSES

REST ON

A

CONSIDERATION

OF

FACTUAL

MI\TTERS

AND

THE

TESTIMONIES

OF

WITNESSES,

WHICH

AGAIN ARE ALL

PROPER

FOR

TRIAL.

n77

TEmphasis

in capital and

bold

supplied)

This was

amply

supported by CA

Justice Manuel

M.

Barrios in his separate dissenting opinion

to the assailed

Amended

Decision

elucidating:

7'At

1r1r.

9-

l

l, CA

.lustioc Conzalcs-Sison's Disscrrtirrg Opinion. Anrrcx

"A"

hclcol

49



*It

is

my

view

that

respondent

judge

did

not

act

arbitrarily

in

finding

the

existence

of

probable

cause

since

it

is

conceded

fact

that

petitioner

-

while

an officer

of

U.M.

and manager/operator

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.

Indubitably,

the

elements

of

Qualified

Theft

can

be

deduced

from

these

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

FACT,

AND

RESPONDENT

JUDGE

WOULD

NOT

YET

BE

IN

A

POSITION

TO

CONSIDER

THE

SAM

E,"78

(Emphasis

in

capital

and

bold

supplied)

RE:

THE

COURT

OF

APPEALS'

IFoRMER

FOURTH

DTVTSTON

DIVISION

OF

FIVE]

MAJORTTY'S

CONCLUSIONS

ON

IMPLIED

AUTHORITY,

BONA

FIDE

BELIEF

OR

GOOD

FATTH,

l\ND

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]

'

Disscntiug

Opinion,

Anncx

"A"

hcrcol.

50

78

At

p.

2,

CA.lusticc

Barrios



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

CONSIDERING

THAT:

PETITION,

In

the

first

assailed

Amended

Decision,

the

Court

of

Appeals'

IFourth

Division

-

Division

of

Five]

majority

further

opined:

t'The

third

element,

i.e.,

that

the

said

taking

be

done

with

intenf

to

gain

is

likewise

absent

in

this

case.

Even

assuming

arguendo

that

Virgilio

was

not

dulY

authorized

bY

the

Board

of

Trustees

of

UM

to

give

its

consent

to

the

petitioner and

the

latter

erred

when

he

solely

relied

on

his

father's

consent

without further

securing

the

authority

from

the

real

owner

of

the

electricity

and

water

suPP|Y

will

not

make

him

culpable

of

the

crime

of

qualified theft

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

August

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

7"

At

p.

10,

Anncx

"A"

hcrcol'.

5t



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

time

its

President

and

Chairman

of

the

Board.

He

practically

controlled

and

ran

the

business

affairs

of

the

university'

As

explained

above,

the

Board

of

Trustees

had

given

Virgilio

an

apparent

authority

to

do

so

as

shown

bY

the

fact

that

it

allowed

Virgilio

to

treat the

finances of

UM

as

if

theY

were

his

own

Personal

property.

It

did

not

revoke

this

authority

while

Virgilio

was

still

alive

or

even

immediately

thereafter.

The

allegation

therefore

that

Petitioner

had

the

intention

to deprive

UM

of

its

personal

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

majority's

exculpating

conclusions

solely

upholding

responden['s

defenses

of

Dr.

Virgilio's

purported

consent

[o 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

FINDING

OF

PROBABLE

CAUSE

HAS

FACTUAL

AND

LEGAL

BASES.

IT

IS

NOT

WHETHER

RESPONDENT'S

CLAIM

VERSUS

THAT

OF

UM

IS

CORRECT,

t"

At

pp.

7-8,

Arrncx

"A-1"

hercol.

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

for

tiiiiur,

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 jurisdiction

if

it/

he

does

not

have

the

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

iribunal,

board

or

officer

acts

in

a

capricious,

whimsical,

arbitrary

or

desPotic

manner

in

the

exercise

of

his

judgment

as

to

be

said

to

be

equivalent

to

lack

of

jurisdiction"'

(EmPhasis

in

bold

suPPlied)

In

the

Same

vein,

in

Chan

vS,

Cottrt

of

Appeatsu',

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

8'

G.R.

No.

113512.10

July

2007;

527

scRA

224,229.

*t

G.R.

No.

15s922.28

Apri12016;451

scRA

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.

In

a

petition

for

certiorari'

the

jurisdiction

oi

the

appellate

court

is

narrow

in

scoPe'

It

is

limited

to

resolvingonlyerrorsofjurisdiction.It

isnottostrayatwillandresolvequestions

or

issues

beyond

its

competence,

such

as

an

error

of

judgment

which

is

defined

as

oneinwhichthecourtorquasi-judicial

body may

commit

in

the

exercise

of

its

jurisdiction.Anerrorofjurisdictionisone

wheretheactscomplainedofWereissued

withoutorinexcessofjurisdiction.Thereis

excessofjurisdictionwherethecourtor

quasi-judicial

body,

being

clothed

with

the

po*eito

determine

the

case,

oversteps

its

authority

as

declared

by

Iaw"'

(Emphasis

in

bold

suPPlied)

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

Theft.

NOTHING

MORE

NOTHING

LESS.

It behooves

aR

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

GROUNDED

UPON

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

o?

f.

That

it be

done

with

grave

abuse

of

confidence.*'

83

Pcople

vs.

I'uig, G.R.

Nos.

173(t54-765.28

Augtrst

2008;

561

SCRA

564'

lt70'

55

A.

B.

C.



HERE,

the

above

elements

of

Qualified

Theft

are

all

present:

As

to

the

first

requisite,

with

respect

to

u.u

element

of

.,ta@of

tacsa

emphatically

affirmed

and

confirmed

that

respondent

instructed

him

sometime

in

July

2OO7

to

use

the

electric

current

of

BPTI

for

the

bail

cutter,

bender,

and

for

welding

because

at

that

time

respondent

was

constructing

his

GTTL

Building.

Lacsa

also

affirmed

and

confirmed

that

-*t.,"n

the

first

floor

of

CTTL

building

was

finished,

,"rpondent

ordered

him

to

make

an

electrical

connection

coming

from

BPTI

going

to

the

basement

.of

cTI

Building

which

[u

obeyed;

-

after

making

the

electrical

connection,

the

place

of

work was

transferred

to

the

basement

of

the

bfff-

building

and

there

the

ball

cutting,

bending

and

welding

using

the

electric

current

from

BPTI

was

do-ne;

he

p"ttoially

knew

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

,irorn

affidavit

that

respondent

also

instructed

him

to

connect

the

water

supply

of

CTTL

Building

to

the

water

installation

of

BprI

sometime

in

February

2009

purposely

to

make

supply

of

water

to

the

second

floor

of

GTLL

Building

*t.'i.t,,

respondent

then

intended

to

open

for

would-be

tourists

or

checkers

on

14

February

2009

(valentine's

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

check

the

water

connection

sometime

in

June

20LL,

he

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

established

the

conclusive

existence

of

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.

,

with

resPect

to

the

element

that

\he

dt

ing

be

donu

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

putposes

of

life

but

also

the

benefit

which

in

any

other

sense

*rv

be

derived

or

expected

from

the

act

which

is

performed.sa

with

resPect

to

the

element

tnat

ff,e

saio

"personal

property

be.longs

to

another",

witness

Lacsa

affirmed

and

confirmed

in

his

Sworn

,

with

resPect

to

the

etement

"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

to

of

the

element

violence

or

s4

Arrtonio

Grcgorio,

Furrdanrcntals

olCriminal

Law

Rcvicw,

1997

Ed.,

p.

759,

citing

Pcoplc

v.r.

Ferntrnrlez.33

O'G

9Ii5.

51



intimidation

against

persons,

nor

force

upon

thing.s",

the

documentary

#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

a

nd water.

ite,

with

resPect

to

the

element

that

-ffiffine

with

gtur";b-*te

of

confidence",

respondent

had

duly

admitted

in

tris

Complaint

for

Forcible

Entry

with

:Lt^ L-

^

ou

rug"r,

docketed

as

civil

case

No.

13

540

filed

with

the

Municipal

Trial

Court

of

Baguio

City

ut

at

the

trial

of

the

subjecl

incident

he

was

the

General

Manager

and

Operator

of

BPTI

owned

by

UM.

His

admission

is

considered

a

judicial

admission

sin.u

th"

complaint

was

verified

and

filed in

court'

ThefactthatrespondentWaSmanagingBPTI.isalso

bolstered

by

the

Minutes

of

the

Board

of

Trustees'

Regular

Meeting

held

on

15

lune

2011

wherein

it

is

stated

that

the

uM

Board

of

Trustees

passed

a

resolution

removing

iesponOent

from

the

management

and

operation

of

BPTI'

As

to

the

seventh

requisite,

with

respect

to the

damage

susta@ion

of

respondent's unlawful

takin{

with

grave

abuse

of

confidence

of

the

water

and

electricity,

th6

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-ir-vis

the

water

and

electric

consumptions

of

BPTI

from

2007

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

2072,

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

thereofandshouldbeheldfortrial.In

the

present

case,

the

Court

agrees

with

and

affirms

the

findings

of

the

investigating

prosecutor,

Assistant

City

Prosecltor

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

*lte.

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

theBoardofUM.Liketheinvestigating

prosecutor,

the

Court

finds

that

the

defense

relied

uPon

bY

the

accused'

that

is,

that

the

taPPing

anq

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

possihly

confirm

the

claim

of

the

self-serving

allegation

of

the

accuse6.z8s

(Emphasis

in

bold

supplied)

on

the

other

hand,

in

its

order

dated

07

December

2012,

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

8s

At

1r.

2,

Atrttcx

"L" hct'ctll'.

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

sufficienttoengenderawell-founded

beliefthatacrimehasbeencommitted

and

that

respondents

are

probably-

guilty thereof.

thete

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

elementsofthecrimeisevidentiary

in

nature

and

is

matter

of

defense

that

maY

be

Passed

uPon

on

a

full-

L'ia*n

tria|

on

the

merits'86"

(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:

A.AscoNcLUsIVELYADMITTEDBYHIMINHIS

COUNTER.

AFFIDAVITBT,

RESPONDENT

HAD

cAUsEDTHETI\PPINGoFANDDIVERTED

WATERANDELECTRICITYFRoMUM,SBPTI

TO

HIS

CTTL

BUILDING.

B.PERRECORDSTRESPONDENTHADTOOK

WATERANDELECTRICITYFRoMUM,SBPTI

WITHoUTTHEcoNsENToFTHEUMBoARD

OF

TRUSTEESBB.

8t'

At

1rp.

2,

Attncx

"Q"

lrclcof.

*7

Anncx

"C"

hclcol.

B*

pl"u*"

scc

Ccrtillcatiorr

datcrl

07

JLrly

20ll

issucd

try

UM's

corporatc

Scct'ctnt'y

Atty'

Diostlntlo

c Madritl'

[ltached

as

Attncx

to

UM's

Crinrinnl

Conllllaint,

Anttcx

"B"

ltcl'col"

60



RESPONDENT'S

DEFENSE

THAT

HE

TOOK

WATER

AND

ELECTRICITY

WITH

THE

coNsENT

OF

HrS

FATHER

DR.

VrRGrLro,

rs

BARRED

AND

PROHIBITED

PER

THE

RATIONALE OF THE

*DEI\D

MAN'S

STATUTE''

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

IN

DEED

MATTERS

OF

DEFENSE

THAT

OUGHT

TO

BE

RESOLVED

BY

TH

E

TRIAL

COURT

IN

THE

TRIAL

PROPER.

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-ir-vis

that

he

took

water

and

electricity

with

the

consent

of

the

actual

owner

thereof,

are

truly

matters

of

defense

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

iarr"

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, Cuevasge:

"Notatu dignum

is

Petitioners'

ventilating

before

this

Court

the

merits

of

their

defenses,

The issue

of

whether

they

acted

in

good

fa

ith

is

best

determined,

however,

during

the

trial

proper.

This

is

not

the

occasion

for

the

full

c.

D.

8'

G.R.

No.

150t169.09

.lunc

200-5;

4(r0

SCRA 38,

,52-53.

61



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

admissibility

of

testimonies

and

evidence,

are

better

ventilated

during

trial

proper

than

at

the

preliminary

investigation

level".

(Emphasis

in

bold

suPPlied)

In

fact,

in the

cases

of

US

vS.

Manluco,

et

al.eo

and

Gaviola

vs.

Peopleer

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

ruled

upon

by

the

trial

court

after

a

full

blown

trial.

Evidently,

this

is

not

the

case

here.

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:

1.

PER

THIS

HONORABLE

COURT'S

RULING

IN

PEOPLE

OF THE

PHILIPPINES

VS,

HU

RUEY CHUN

(G.R.

NO.

158064.

30

JUNE

2005;

462

SCRA

499,510-515)

AND

OTHER

ESTABLISHED

]

U

RISPRU

DENCE,

THE

INSTANT

CRIMINAL

CHARGE

AGAINST

RESPONDENT

FOR

QUALI

FIED

TH

EFT

IN

TH E

""

No.

t

(x)05.

09 Novcmtrcr

I

9

I 4;

2ll

I'}h

il 3(r

I

.

')r

C.R.

Nn.

163927.27

January

20t)6;

4ti0

SCRA

436

62



AMOUNT

OF

PHP3,OOO,OOO.OO

PER

SE IS A NON-BAILABLE

OFFENSE,

AS THE PENALTY

TH EREFOR

IS

RECLUSION

PERPETUA

PER

ARTICLE

310

IN

RELATION

TO

ARTICLE

309,

REVISED

PENAL

CODE.

ON

THE FACTS,

respondent

was

charged

here

for

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

theft

under

Art.

309

reads,

in

part:

"xxx

1.

The

penalty

of

prision

mayor

in its

minimum

and

medium

periods,

if the value

of

the

thing

stolen

is

more

than

|2,OOO

pesos

but

does

not

exceed

22,OOO

pesos;

but

if

the

value

of

the thing

stolen

exceeds

the latter

amount,

the

penalty

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

which

may

be

imposed

shall

not

exceed

twenty

years.

In such

cases,

and

in

connection

with

the

accessory

penalties

which

may

be imposed

and

for

the

purpose

of the

other

provisions

of

this

Code,

the

penalty

shall

be

term

ed

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,

he falls

under

the

graver

felony

of

eualified

Theft,

which,

under

Article

310,

imposes

a

specific

penarty

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

People

of

the

Philippines

vs.

Cafialese2,

this

Honorable

Court had

explicitly

held

that the

penalty for

Qualified

Theft

under Article

310

of

the

Revised

Penal

Code,

taking

into

consideration

the value

of

the

property

stolen, is

reclusion

perpefua

with the

accessory

penalty

of death, with

no

possibility

of

pardon

before

the

lapse

of

40

years.

Accordingly,

per

Section

13",

Article III,

L}BT

Philippine

constitution,

respondent

is not entitled

to

bail

as a

matter

of

right

since

he

stand

charged

of

an

offense

with

reclusion

perpetua

as

imposable

penalty.

Respondent

nonetheless

cited in

his

CA

certiorari

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.

B1B, NOT

Qualified

Theft.

what

is controlling

then

in this

case

involving

the

crime

of

Qualified

Theft

of

water

and electricity

in the

amount

of

Php3,000,000.00,

is

the

case

of People

of

the

philippines

vs,

Hu

Ruey

Chun.es

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

RECOM

M EN DED

FOR

TH

E

SU

BJ

ECT

CHARGE

OF

QUALIFIED

THEFT

SINCE

THE

VALU

E

OF

TH

E

PROPERTY

"'G.ll.

No.

l2(r3 19.

l2Ockrbcr

l()9g:297

SCRA(r(r7,676-678.

'B

".Scction

13'

AII

llcrstlns,

excellt

those

chargetl

rvith

oll'enses

punishable

5y reclusiol

l)erl)ctuu

lvhen

evitlence

of

gtlilt

is strollg,

shall,

[rclbrc coltvictiotr,

bc

bailnblc

by

sul'l'icicnt

surctics,

or

bc

rclcascrl

irn

ic"ogsizalce

as

lray lre

Pfovi.tlctl

by

law.

Thc

riglrt to

bail

shall

not

bc

intpairccl

cvcn

whcrr

thc privilcgc

ol tlrc

writ .rf

hntr"u.

cerlus

is

suspcncled.

Ilxcossivc

bail

shall

.ot

bc

'ct1uirctl".

(Emphasis

in bold

supplicil)

"r

I'ttlagt'a1rlt

173,

pp.

4-5-41.l,

rcsporrtlcnt'sPctition

lil'Ccltiorali

tlatccl

l5 Fcbruary

2011,

Anncx

"R"

lrcreof.

'''

G.R.

No.

l-s1t064.

30 .lunc 2005;

462SCRA

498,

5 l0-515.

64



STOLEN

IS PHP3

MILLION,

MORE

OR

LESS,

Section

L, President's

Memorandum

Order

No. 177

states:

"SECTION

1.

No

bail shall

be

recommended

for the

crime

of

qualified

theft

where the

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 WTTHOUT

ANY

QUALIFICATION

OR CONDITION

that

no

bail

shall

be

recommended

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

Qualified

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 20L3,

the

office

of the

President

revoked

Memorandum

order

No. 777,

series

2005

and reiterates

the

previous

Dol

Circular

No. 29,

series

of

2005 mandating

that

"pursuant

to

the

provisions

of

existing

laws,

no

bail shatt

be

recommended

for

the

offense

of

qualified

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 DOJ

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

GrvEN

DUE

couRsE,

and

after

due

proceedings,

the

court

of Appeats'

[Former

Fourth

Division

-

Division

of

Fivel

Amended

Decision

dated

zt

Novem

ber

65



2014

and

Resolution

dated

28

August

2015

in CA

-G.R.

SP

No.

L28625,

be

REVERSED AND

SET

ASIDE, and

in lieu

thereof a

new Decision be

ISSUED

REINSTATING

AND

AFFIRMING IN TOTO

the

Court

of

Appeals'

fspecial

Tenth

Divisionl

Decision

dated

30

July

2013.

Other reliefs

just

and

equitable

are

likewise

prayed

for.

Pasig

City

for the

City of Manila,

12

October

2015.

MADRID

DANAO

& CARULLO

Counsel for Private

Complainant UM

Suite 1609

16/F, Jollibee

Plaza

F.

Ortigas

Jr. Road

(ex-Emerald

Avenue)

Ortigas Center,

Pasig

City

1605

/

P.O. Box

No.

13143

Tel.

Nos.

(02)

63t-7ss\

/

Q2)

706-33Ls

By:

$,

RAINI MADRID

Lifetime

IBP No.

053{3

/

05.'03-05

/

Quezon

City

Pasig

City

CLE

Compliance No.

IV

-

0016867

/

04-15-2073

/

/

1A,,,rar

ALVIN A.

CARULLO

Roll No. 48458

PTR

No.

03Bt}tz

/

Ot-07-15

/

Pasig

City

Lifetime

IBP

No.

03773

/

06-28-04

/

RSM

MCLE

Compliance

No.

IV

-

0016869

/

04-15-2013

/

Pasig

City

Copy

furnished:

COURT

OF

APPEALS

(By

Personal

Service)

Ma.

Orosa

Street

Ermita,

1000

Manila

[CA-G.R,

SP

No.

128625]

OFFICE

OF

THE

SOLICITOR GENERAL

(By

Personal

Service)

(ASG

BERNARD

G,

HERNANDEZ)

No.

134

Amorsolo

Street

Legaspi

Village,

L299 Makati

City

RTC-BAGUIO

CITY,

BRANCH

6O

(By

Registered

Mail)

Hall

of

Justice

Complex

Baguio

City



RTC-BAGUIO

CfTY,

BRANCH 7

(By

Registered

Mail)

Hall of

Justice

Complex

Baguio City

RTC-BAGUIO

CITY,

BRANCH

5

(By

Registered Mail)

Hall

of

Justice Complex

Baguio City

ATTY. FILIBON

FABELA

TACARD ON

(By

Registered

Mail)

TACARDON

AND

PARTNERS

Counsel

for

Respondent

Unit 501,

West

Mansion

Condominium

West

Avenue cor.

Zamboanga

Street

LLO4

Quezon

City,

ERNESTO

L.

DELOS SANTOS

(By

Registere:d

Mail)

Respondent

108 Cenacle Drjve, Senville

Subdivision

Tandang

Sora,

Quezon

City

EXPLAT{ATION

(Re:

$ervice through_Registered Mail)

In

compliance with Section

11,

Rule 13

of

the

1997

Rules

of

Civil

Procedure,

counsel respectfully manifests

that service of the

foregoing

Petition for Review

on

Certiorari

was

done

by

registered 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.

/

Vtr,,rfr-

ALVIN

A.

CARULLO

AAC/jcb/UM 1.3928

67



VERIFICATION

AND

CERTIFICATION

OF NON.FORUM

SHOPPING

I,

DR.

EMrLY

D.

DE

LEON,

of legal

age

and

with

office

address

at

546

M.V.

Delos

santos

street,

sampaloc, 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

("osc"),

I

have

caused

the

preparation

and

filing

of

the

foregoing

Petition

for

Review

on

certiorari

under

Rule

4s

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.

To

the

best

of my

knowledge,

no

similar

action

or

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

the

originating

criminal

Case

No.

32306-R,

entitled

"People

of

The

Philippines

vs.

Ernesto

Delos

santas",

now

pending before

RTC-Baguio

city,

Branch

5;

and

cA-G.R.

sp

No.

128625,

entitled

"Atty.

Ernesto

L.

Delos

santos

vs.

Regional

Trial

Court

of Baguio

City, Branch

60

And Branch

7,

and

lJniversity

of

Manila

represented

by Dr.

Emily

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)

days

from

receipt

of such

knowledge.

6.

Iam

Section

5,

Rule

7

executing

this

sworn

statement

in

compliance

with

of

the

7997

Rules

of

Civil

Procedure

DR.

EM

D. DE

Affiant

at

tu

Doc.

No.

(

f(//.

-.

|.

,/l

l

Paoe

No.

A{'

B;;k

N;:.-38

Series

of

2015.



REPUBLIC

OF

THEi PHILIPPINES)

,J

n tr, ,

,,

)Ss'

.

,,

,l,_

/.{

SECRETARY'S

CERTIFICATE

I,

ATTY,

DIOSDADO

G.

MADRID,

of

legal

age,

Filipino

and

with

office

address at

546

M.V.

Delos

Santos Street,

Sampaloc,

Manila

after

having

been first

sworn

in accordance

with law, do hereby

certifyl

1.

I

am

the

duly elected

and

incumbent

Corporate Secretary

of the

University of

Manila

("Corporation"),

a

corporation

duly

organized and

existing

under

Philippine

laws.

2. As

Corporate Secretary, I

am the custodian

of

the

records

of

the

Corporation,

including

the

minutes

of

the

meetings

of its

Board

of

Directors.

3.

That

at a

Regular

Meeting

of the

board of

Trustees

of the

Corporation

held

on

September

76,20L5, at

which meeting

a

quorum

was

present

and

acting

throughout, the following

resolutions were approved, among others:

"RESOLVED,

that

the

Corporation,

with

the

endorsement

of the

OCP-Baguio City/DOJ

and the

conformity of the

Office

of the Solicitor

General,

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

27

November 2Ol4 and

Resolution dated

28

August 2015

in CA-G.R.

SP No.

128625,

entitled

"Atty.

Ernesto

L.

Delos Santos

vs.

RTC'Baguio

City,

Branch 60

and 7, and

University

of

Manila,

represented

by

Dr.

Emily

D. De Leon".

RESOLVED FURTHER,

as

it is

hereby resolved,

that

Dr. Emily

D. De Leon,

incumbent

President of the

Corporation, be

authorized,

as she

is authorized,

to

sign

for

and

on behalf

of

the Corporation, the

Motion for

Extension

of Time

to

File

Petition

for

Review

on

Certiorari under

Rule

45,

and

the

main Petition

for

Review

on

Certiorari

under

Rule

45

and

any and all

pleadings

in

the

said

case,

and

such

other

papers

or

documents necessary/ incidental and/or

proper

in

respect

thereto."

4.

The foregoing

resolutions

have not

been

altered, modified

or revoked

and

that

the

same are

still

in

full

force and effect.

5. I

am

executing

this

Certificate

for

whatever

legitimate

purpose/s

it

may serve

IN WITNESS

WHEREOF.

I have hereunto

@,",

rriAnliJil.A

,fl?YFftflffi='

Issued

on

June

5,

2009.

Doc.

No.

/6q

l:ffiJI#r

I

ArrY.

DrosDAD{o.

ror*rfl

CorpolqJe

S{cretary

,

sEP23mw

set my

hand

this

AND

SWORN

to

before me this

_

September,

2015

at

,

affiant exhibiting

to me his

Senior Citizen

ID

No. 24757899,

l{t\

I

lrFil

oa,

H?E



(hi'i't'r:n

tt

f,

flil

0,44rrfflrrtrug

{Sttrt

r,,rm

I

HOIU.

CLJrit"O

A"

1u.tr{ELLAI{O

Pro

si:ci,r

i

or-

G eli

er.arl

De1:ar"t.r'rt

r--r r

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AFFIDAVIT

OF

SERVICE

l, JAIME

M.

TAYAG,

a

paralegal

of

MADRID

DANAO

& CARULLO,

with

office

address

at

Suite

1609,

16/F

Jollibee

Plaza,

F.

Ortigas

Jr. Road

(ex-Emerald

Ave.),

Ortigas

Center,

Pasig

City,

after

having

been

duly sworn

to in

accordance

with

law,

hereby

depose

and

state:

That on

I

served copies

of

the following

Pleading/Paper:

PETITION FOR REVIEW

ON

CERIIORAR/

UNDER RULE 45

ln

G.R.

No. 220685

[CA-G.R.

SP No.

1286251,

entitled

"People

of

the

Philippines

vs.

Atty.

Ernesto

L.

Detos

Sanfos"pursuant

to

Sections

6, 7 and

13 of Rule

13 of

the 1997

Rules,of

Civil Procedure,

as follows:

Bv Personal

Service:

COURT

OF

APPEALS

Ma.

Orosa

Street

Ermita,

1000

Manila

[CA-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,

BRANCH

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

by

depositing

FIVE

(5)

copies

at

the

Ortigas

Post

Office

of

pasig

City

as evidenced

by

and

Registry

Receipt Nos.

hereto

attached

Documents

GR No.220685 Petition for Review Rule 45