Republic of the Philippines

COURT OF APPEALS

Manila

 

 

 

FORMER SPECIAL SIXTH DIVISION

 

 

 

NBI SUPERVISING AGENT E. MARVIN DE JEMIL, PETRON GASUL DEALERS ASSOCIATION, TOTALGAZ DEALERS ASSOCIATION,

Petitioners,

 

- versus -

 

 

HONORABLE RAUL M. GONZALEZ, SECRETARY, and HONORABLE ERNESTO L. PINEDA, OF THE DEPARTMENT OF JUSTICE, ARNEL U. TY, MARI ANTONETTE TY, JASON ONG, WILLY DY, and ALVIN TY,

Respondents.

CA-G.R. SP NO. 98054

 

 

 

 

 

 

Members:

 

 

REYES, A. B., JR., Chairman,

*LONTOK, and

BATO, JR., JJ.

 

 

 

Promulgated:

March 14, 2008

 

 

R E S O L U T I O N

 

BATO, JR., J.:

 

Submitted for resolution is private respondents’ Motion for Reconsideration1 which seeks to set aside our Decision2 dated September 28,2007 the dispositive portion thereof reads:

 

“WHEREFORE, the instant petition is GRANTED.  The assailed resolutions dated October 9, 2006 and December 14, 2006 are hereby REVERSED and SET ASIDE.  The Joint Prosecutor finding probable cause against private respondents Arnel Ty, Marie Antonette Ty, Jason Ong, Willy Dy, and Alvin Ty is hereby REINSTATED. xxx”

 

The private respondents assail the aforementioned decision based on the following grounds:

 

“I.  Petitioners are not entitled to the Special Civil Action of Certiorari because Appeal is the appropriate remedy.

 

II.  There is no probable cause to believe that private respondents violated Section 2 (a) of Batas Pambansa Blg. 33, as amended.

 

III.  There is no probable cause to believe that private respondents violated Section 2 (c) of Batas Pambansa Blg. 33, as amended.

 

IV.  Private respondents cannot be held liable as they are mere directors and not in charge of the management of the business affairs of the corporation.”

 

Anent the first ground, private respondents reiterate their claim in their Comment that a petition for certiorari is not the proper remedy because recourse should have been with the Office of the President under the principle of exhaustion of administrative remedies.

 

The contention of private respondents is not tenable.  The doctrine of exhaustion of administrative remedies is a general rule that admits of several exceptions. One of the exceptions, which is applicable to the instant case, is when the respondent is the Department Secretary who acts as an alter ego of the President bears the implied approval of the latter.3  Here the Secretary of Justice is impleaded as one of the public respondents.  Moreover, settled is the rule that whenever the Secretary of Justice commits grave abuse of discretion amounting to lack or excess of jurisdiction in the determination of probable cause in a preliminary investigation, or in a petition for review filed before it from the preliminary investigation conducted by the city or provincial prosecutors, the same is reviewable by this Court through a petition for certiorari.

 

The Supreme Court in the case of Preferred Home Specialties, Inc., et. al. vs. Court of Appeals4 held that if the officer conducting a preliminary investigation acts without or in excess of his authority and resolves to file the Information despite the absence of probable cause, such act may be nullified by a writ of certiorari.  Indeed, under Rule 112, Section 4 of the 2000 Rules of Criminal Procedure, the Information shall be prepared by the Investigating Prosecutor against the respondent only if there is a finding of probable cause to hold the latter for trial.  The Investigating Prosecutor acts without or in excess of authority under the Rule if he files an Information against the respondent despite the absence of evidence showing probable cause therefor.  If the Secretary of Justice finds no probable cause and reverses the Resolution of the Investigating Prosecutor based on the evidence on record, and orders the latter to file an Information against the respondent thereon despite the absence of probable cause, the Secretary of Justice acts contrary to law, without or in excess of authority.  Such ruling may be nullified in a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure.

 

In the same vein, whenever the Secretary of Justice finds no probable cause and reverses the Resolution of the Investigating Prosecutor which is based on evidence on record, and orders the latter to withdraw the Information despite the presence of probable cause, just like what transpired in the case at bar, the Secretary of Justice’s acts can be reviewed and nullified in a petition for certiorari under Rule 65 of the Rules of Court as there is grave abuse of discretion amounting to lack or excess of jurisdiction which is a proper ground for a petition for certiorari under the said rule.  Thus, the petition for certiorari is the appropriate remedy in the case at bar since We find grave abuse of discretion amounting to lack or excess of jurisdiction on the part of public respondent when he ruled that there was no probable cause in indicting the private respondents as the evidence presented by the petitioners are sufficient to warrant the finding of probable cause in the said case.

 

Furthermore, in the case of Torres, Jr. vs. Aguinaldo5 the Supreme Court categorically declared that a petition for certiorari is proper when the Justice Secretary commits grave abuse of discretion amounting to lack or excess of jurisdiction, viz:

 

“xxx where the decision of the Justice Secretary, or the trial court, as the case may be, is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction that the Court of Appeals may take cognizance of the case in a petition for certiorari under Rule 65 of the Revised Rules of Civil Procedure whose decision may then be appealed to this Court by way of petition for review on certiorari. xxx”

 

We deem it best to stress again that the Prosecutor or the Secretary of Justice for that matter, in determining probable cause is required only to determine whether or not the person or persons against whom a specific complaint is filed has performed specific acts, or committed specific omissions, in violation of existing provisions of law.  In determining probable cause for the filing of an information in court the Prosecutor is not required that all reasonable doubt of the guilt of the accused must be removed.  Thus, in Trocio vs. Manta,6 the Supreme Court held that:

 

“When a fiscal investigates a complaint in order to determine whether he should file charges with the court against the person complained of, the scope of the investigation is far short of a trial of an accused before the court.  It is not required that all reasonable doubt of the guilt of the accused must be removed; it is only required that the evidence be sufficient to establish probable cause that the accused committed the crime charged. xxx”  (Emphasis supplied.)

 

In Pilapil vs. Sandiganbayan7 the Supreme Court also ruled that:

 

Probable cause is a reasonable ground of presumption that a matter is, or may be, well founded, such as 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 and 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 as to whether there is sufficient evidence to procure a conviction.  It is enough that it is believed that the act or omission complained of constitutes the offense charged.  Precisely, there is a trial for the reception of the evidence of the prosecution in support of the charge.  (Emphasis supplied.)

 

In the case of Webb vs. De Leon,8 the Supreme Court declared that:

 

“A finding of probable cause needs only to rest on evidence showing more likely than not a crime has been committed and was committed by the suspects.  Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty.  As well put in Brinegar vs. Unites States, while probable cause demands more than ‘bare suspicion’, it requires ‘less than evidence which would justify xxx conviction.’  A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt.”

 

As what we had thoroughly discussed in Our Decision, there is probable cause to indict the private respondents for the crimes punished under Section 2 (a) and Section 2 (c) of Batas Pambansa Blg. 33, as amended.  We find the evidence presented by the petitioners sufficient to engender a well-founded belief that the said crimes have been committed and the private respondents are probably guilty thereof.  We find nothing in the Motion for Reconsideration filed by the private respondents which would warrant the reconsideration of the said Decision.

 

A careful scrutiny of the arguments raised in the second and third grounds relied upon by the private respondents in their Motion for Reconsideration reveals that the same have been passed upon by this Court in its assailed Decision.  The issues and arguments raised are a rehash of the arguments which We have already painstakingly considered in the aforementioned Decision.  To discuss again the ratio decidendi of Our Decision would be to belabor the issues ad infinitum.

 

Lastly, the private respondents postulate that they cannot be held liable as they are mere directors and not in charge of the management of the business affairs of the corporation.

 

Again, this argument fails to convince us.  Section 4 of BP 33, as amended, provides:

 

“Sec 4.  Penalties.  – Any person who commits any act herein prohibited shall, upon conviction, be punished with a fine of not less than twenty thousand pesos (P 20,000.00) but not more than fifty thousand pesos (P 50,000.00), or imprisonment of at least two (2) years but not more than five (5) years, or both, in the discretion of the court.  In cases of second and subsequent conviction under this Act, the penalty shall be both fine and imprisonment as provided herein.  Furthermore, the petroleum and/petroleum products, subject matter of the illegal trading, adulteration, shortlisting, hoarding, overpricing or misuse, shall be forfeited in favor of the Government:  Provided, That if the petroleum and/or petroleum products have already been delivered and paid for, the offended party shall be indemnified twice the amount paid, and if the seller who has not yet delivered has been fully paid, the price received shall be returned to the buyer with an additional amount equivalent to such price and in addition, if the offender is an oil company, marketer, distributor, refiller, dealer, sub-dealer and other retail outlets, or hauler, the cancellation of his license.

 

xxx xxx xxx

 

When the offender is a corporation, partnership, or other juridical person, the president, the general manager, managing partner, or such other officer charged with the management of the business affairs thereof, or employee responsible for the violation shall be criminally liable xxx.” (Emphasis supplied.)

 

Apparently, when the offender is a corporation just like OMNI Gas Corporation which is owned and controlled by the private respondents, the persons to be held liable are the president, the general manager, managing partner, or such other officers charged with the management of the business affairs thereof.  It is nowhere stated in the aforequoted provision of the law that for the enumerated persons to be held liable they must be actually in charge of the management of the business affairs of the corporation and or they are taking active part in the management of the day-to-day business of the corporation as what the private respondents erroneously postulated.

 

Moreover, Section 23 of the Corporation Code of the Philippines in part provides that:

 

“SEC. 23.  The board of directors or trustees.  – Unless otherwise provided in this Code, the corporate powers of all corporations formed under this Code, shall be exercised, all business conducted and all property of such corporation controlled and held by the Board of Directors xxx” (Emphasis supplied.)

 

Based on the foregoing, the management of the business affairs of a corporation is lodged with the board of directors.  In this case, as correctly pointed out by the petitioners, none of the private respondents denied that they are members of the board of directors of such corporation.  In fact, they are enumerated as such in the General Information Sheet of the corporation.  Aside from being members of the board of directors thereof, majority of them are also officers thereof.  Private respondent Arnel U. Ty is the President thereof, while private respondent Marie Antonette Ty is its Treasurer and the Corporate Secretary is Jason Ong.  Indubitably, as members of the board of directors and as corporate officers, the private respondents are responsible for the conduct of OMNI’s business.  As such, they can be held criminally liable for violation of BP 33, as amended.  The contention that they are also officers and employees of corporations other than OMNI is immaterial to such liability under the said law as it would not controvert the undisputed fact that they are officers and members of the board of directors of OMNI.

 

Furthermore, the Supreme Court held in the case of People vs. Tan Boon Kong9 that:

 

“xxx A corporation can act only through its officers and agents, and where the business itself involves a violation of the law, the correct rule is that all who participate in it are liable. xxx”

 

Applying the same in the case at bar, since there was no refutation on the part of the private respondents that OMNI Gas Corporation is refilling and/or underfilling branded LPG cylinders which is punishable under BP 33, as amended, the private respondents as officers and members of the board of directors thereof can be held liable.

 

In sum, We see no legal justification for the reconsideration of the said Decision.  Nor is there cogent or compelling reason to warrant the reconsideration of the same.

 

WHEREFORE, the private respondents’ Motion for Reconsideration is DENIED.

 

SO ORDERED.

 

 

 

RAMON M. BATO, JR.

Associate Justice

 

 

WE CONCUR:

 

 

 

ANDRES B. REYES, JR.

Associate Justice

ARCANGELITA ROMILLA LONTOK

Associate Justice

 

 

 

 

________________________________________

 

*Acting Senior Member vice Justice Jose C. Mendoza, who is on leave, per Office Order No. 36-07-CMV dated September 13, 2007.

 

1Rollo, pp. 1099-1120

 

2Ibid., pp. 1070-1090

 

3Joson vs. Vargas, 482 SCRA 360.

 

4478 SCRA 387 (December 16, 2005); citing Mendoza-Arce vs Office of the Ombudsman (430 Phil. 101) [2002].

 

5461 SCRA 599, 612.

 

6118 SCRA 241.

 

7221 SCRA 349 [ April 7, 1993].

 

8247 SCRA 652.

 

954 Phil. 607, March 15, 1930.

 

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