AAA v Carbonell DECISION YNARES-SANTIAGO, J.

: cralawThis petition for certiorari[1] assails the December 16, 2005[2] Order of the Regional Trial Court, Branch 27, San Fernando, La Union in Criminal Case No. 6983, dismissing the rape case filed against private respondent Jaime O. Arzadon for lack of probable cause; and its February 3, 2006[3] Order denying petitioners motion for reconsideration. cralawPetitioner worked as a secretary at the Arzadon Automotive and CarServiceCenter from February 28, 2001 to August 16, 2001.On May 27, 2001 at about 6:30 p.m., Arzadon asked her to deliver a book to an office located at another building but when she returned to their office, the lights had been turned off and the gate was closed.Nevertheless, she went inside to get her handbag. On her way out, she saw Arzadon standing beside a parked van holding a pipe.He told her to go near him and upon reaching his side, he threatened her with the pipe and forced her to lie on the pavement.He removed her pants and underwear, and inserted his penis into her vagina.She wept and cried out for help but to no avail because there was nobody else in the premises. Petitioner did not report the incident because Arzadon threatened to kill her and her family. But when she discovered that she was pregnant as a consequence of the rape, she narrated the incident to her parents.On July 24, 2002, petitioner filed a complaint for rape against Arzadon. cralawOn September 16, 2002, Assistant City Prosecutor Imelda Cosalan issued a Resolution[4] finding probable cause and recommending the filing of an information for rape. Arzadon moved for reconsideration and during the clarificatory hearing held on October 11, 2002, petitioner testified before the investigating prosecutor.However, she failed to attend the next hearing hence, the case was provisionally dismissed. On March 5, 2003, petitioner filed another AffidavitComplaint[5] with a comprehensive account of the alleged rape incident. The case was assigned to 2nd Assistant Provincial Prosecutor GeorginaHidalgo.During the preliminary investigation, petitioner appeared for clarificatory questioning.On June 11, 2003, the investigating prosecutor issued a Resolution[6] finding that a prima facie case of rape exists and recommending the filing of the information. cralawArzadon moved for reconsideration and requested that a panel of prosecutors be constituted to review the case.Thus, a panel of prosecutors was created and after the clarificatory questioning, the panel issued on October 13, 2003 a Resolution[7] finding probable cause and denying Arzadons motion for reconsideration. cralawAn Information[8] for rape was filed before the Regional Trial Court, Branch 27, San Fernando, La Union

onFebruary 6, 2004, docketed as Criminal Case No. 6415.Thereafter, Arzadon filed a Motion to Hold in Abeyance All Court Proceedings Including the Issuance of a Warrant of Arrest and to Determine Probable Cause for the Purpose of Issuing a Warrant of Arrest.[9]On March 18, 2004, respondent Judge Antonio A. Carbonell granted the motion and directed petitioner and her witnesses to take the witness stand for determination of probable cause. cralaw Arzadon also appealed the Resolution of the panel of prosecutors finding probable cause before the Department of Justice. On July 9, 2004, then Acting Secretary of Justice Merceditas Gutierrez found no probable cause and directed the withdrawal of the Information in Criminal Case No. 6415.[10]chanroblesvirtuallawlibrary Upon motion for reconsideration by petitioner, however, Secretary of Justice Raul Gonzales reversed theJuly 9, 2004 Resolution and issued another Resolution[11] finding that probable cause exists.Thus, a new Information[12] for rape was filed against Arzadon docketed as Criminal Case No. 6983. cralawConsequently, Arzadon filed an Urgent Motion for Judicial Determination of Probable Cause for the Purpose of Issuing a Warrant of Arrest.[13] In an Order dated August 11, 2005, respondent Judge Carbonell granted the motion and directed petitioner and her witnesses to take the witness stand. Instead of taking the witness stand, petitioner filed a motion for reconsideration claiming that the documentary evidence sufficiently established the existence of probable cause.Pending resolution thereof, she likewise filed a petition[14] with this Court for the transfer of venue of Criminal Case No. 6983. The case was docketed as Administrative Matter No. 05-12-756-RTC and entitled Re: Transfer of Venue of Criminal Case No. 6983, formerly Criminal Case No. 6415, from the Regional Trial Court, Branch 27, San FernandoCity, La Union, to any Court in Metro Manila. In a Resolution[15] dated January 18, 2006, the Court granted petitioners request for transfer of venue.The case was raffled to the Regional Trial Court of Manila, Branch 25, and docketed as Criminal Case No. 06-242289.However, the proceedings have been suspended pending the resolution of this petition. Meanwhile, on December 16, 2005, respondent Judge Carbonell issued the assailed Order dismissing Criminal Case No. 6983 for lack of probable cause.Petitioners motion for reconsideration was denied hence, this petition. Petitioner raises the issues:[16]chanroblesvirtuallawlibrary I RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF JURISDICTION WHEN IT following

GRANTED THE MOTION FOR DETERMINATION OF PROBABLE CAUSE FILED BY THE PRIVATE RESPONDENT AND THE SUBSEQUENT DENIAL OF THE MOTION FOR RECONSIDERATION II RESPONDENT JUDGE COMMITTED FURTHER ACTS CONSTITUTING GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION WHEN IT ORDERED THE COMPLAINANT AND WITNESSES TO TAKE THE STAND FOR THE PURPOSE OF DETERMINING PROBABLE CAUSE III RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION WHEN HE REFUSED TO INHIBIT FROM FURTHER HANDLING THE CASE DESPITE WHISPERS OF DOUBT ON HIS BIAS AND PARTIALITY IV RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION WHEN IT ISSUED THE ORDER OF FEBRUARY 3, 2006, DENYING THE MOTION FOR RECONSIDERATION, DESPITE THE SUPREME COURT RESOLUTION OF JANUARY 18, 2006, GRANTING THE TRANSFER OF VENUE cralawPetitioner contends that the judge is not required to personally examine the complainant and her witnesses in satisfying himself of the existence of probable cause for the issuance of a warrant of arrest.She argues that respondent Judge Carbonell should have taken into consideration the documentary evidence as well as the transcript of stenographic notes which sufficiently established the existence of probable cause. cralawArzadon claims that the petition should be dismissed outright for being the wrong mode of appeal, it appearing that the issues raised by petitioner properly fall under an action for certiorari under Rule 65, and not Rule 45, of the Rules of Court. Respondent Judge Carbonell argues in his Comment[17] that the finding of probable cause by the investigating prosecutor is not binding or obligatory, and that he was justified in requiring petitioner and her witnesses to take the witness stand in order to determine probable cause. The issues for resolution are 1) whether the petition should be dismissed for being the wrong mode of appeal; and 2) whether respondent Judge Carbonell acted with grave abuse of

discretion in dismissing Criminal Case No. 6983 for lack of probable cause. The petition has merit. A petition for review on certiorari under Rule 45 is distinct from a petition for certiorari under Rule 65 in that the former brings up for review errors of judgment while the latter concerns errors of jurisdiction or grave abuse of discretion amounting to lack or excess of jurisdiction. Grave abuse of discretion is not an allowable ground under Rule 45.However, a petition for review on certiorari under Rule 45 may be considered a petition for certiorari under Rule 65 where it is alleged that the respondents abused their discretion in their questioned actions, as in the instant case.[18] While petitioner claims to have brought the instant action under Rule 45, the grounds raised herein involve an alleged grave abuse of discretion on the part of respondent Judge Carbonell. Accordingly, the Court shall treat the same as a petition forcertiorari under Rule 65. However, we must point out the procedural error committed by petitioner in directly filing the instant petition before this Court instead of the Court of Appeals, thereby violating the principle of judicial hierarchy of courts.It is well-settled that although the Supreme Court, Court of Appeals and the Regional Trial Courts have concurrent jurisdiction to issue writs of certiorari, prohibition, mandamus, quo warranto,habeas corpus and injunction, such concurrence does not give the petitioner unrestricted freedom of choice of court forum.[19] In this case, however, the gravity of the offense charged and the length of time that has passed since the filing of the complaint for rape, compel us to resolve the present controversy in order to avoid further delay.[20] We thus proceed to the issue of whether respondent Judge Carbonell acted with grave abuse of discretion in dismissing Criminal Case No. 6983 for lack of probable cause. We rule in the affirmative. Respondent Judge Carbonell dismissed Criminal Case No. 6983 for lack of probable cause on the ground that petitioner and her witnesses failed to comply with his orders to take the witness stand. Thus In RESUME therefore, as indubitably borne out by the case record and considering that the Private Prosecutor, despite several admonitions contumaciously nay contemptuously refused to comply/obey this Courts Orders of March 18, 2004, August 11, 2005 and eight (8) other similar Orders issued in open Court that directed the complainant/witnesses to take the witness stand to be asked probing/clarificatory questions consonant with cited jurisprudential rulings of the Supreme Court, this Court in the exercise of its discretion and sound judgment finds and so holds that NO probable cause was established to

warrant the issuance of an arrest order and the further prosecution of the instant case. Record also shows in no unclear terms that in all the scheduled hearings of the case, the accused had always been present.A contrario, the private complainant failed to appear during the last four (4) consecutive settings despite due notice without giving any explanation, which to the mind of the Court may indicate an apparent lack of interest in the further prosecution of this case.That failure may even be construed as a confirmation of the Defenses contention reflected in the case record, that the only party interested in this case is the Private prosecutor, prodded by the accuseds alleged hostile siblings to continue with the case. WHEREFORE, premises considered, for utter lack of probable cause, the instant case is hereby ordered DISMISSED.[21] He claims that under Section 2, Article III of the 1987 Constitution, no warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce. However, in the leading case of Soliven v. Makasiar,[22] the Court explained that this constitutional provision does not mandatorily require the judge to personally examine the complainant and her witnesses.Instead, he may opt to personally evaluate the report and supporting documents submitted by the prosecutor or he may disregard the prosecutors report and require the submission of supporting affidavits of witnesses.Thus: The addition of the word personally after the word determined and the deletion of the grant of authority by the 1973 Constitution to issue warrants to other responsible officers as may be authorized by law, has apparently convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause for the issuance of warrants of arrest.This is not an accurate interpretation. What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause.In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses.Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable

cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscals report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. Sound policy dictates this procedure, otherwise judges would by unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts.[23] We reiterated the above ruling in the case of Webb v. De Leon,[24] where we held that before issuing warrants of arrest, judges merely determine the probability, not the certainty, of guilt of an accused.In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause.They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence.[25] It is well to remember that there is a distinction between the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest and the preliminary investigation proper which ascertains whether the offender should be held for trial or be released.The determination of probable cause for purposes of issuing the 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.[26] True, there are cases where the circumstances may call for the judges personal examination of the complainant and his witnesses. But it must be emphasized that such personal examination is not mandatory and indispensable in the determination of probable cause for the issuance of a warrant of arrest.The necessity arises only when there is an utter failure of the evidence to show the existence of probable cause.[27]Otherwise, the judge may rely on the report of the investigating prosecutor, provided that he likewise evaluates the documentary evidence in support thereof. Indeed, what the law requires as personal determination on the part of the judge is that he should not rely solely on the report of the investigating prosecutor.In Okabe v. Gutierrez,[28] we stressed that the judge should consider not only the report of the investigating prosecutor but also the affidavit and the documentary evidence of the parties, the counter-affidavit of the accused and his witnesses, as well as the transcript of stenographic notes taken during the preliminary investigation, if any, submitted to the court by the investigating prosecutor upon the filing of the Information.[29]If the report, taken together with the supporting evidence, is sufficient to sustain a finding of probable cause, it is not compulsory that a personal examination of the complainant and his witnesses be conducted.

In this case, respondent Judge Carbonell dismissed Criminal Case No. 6983 without taking into consideration the June 11, 2003 Resolution of 2nd Assistant Provincial Prosecutor Georgina Hidalgo, the October 13, 2003 Resolution of the panel of prosecutors, and the July 1, 2005 Resolution of the Department of Justice, all of which sustain a finding of probable cause against Arzadon.Moreover, he failed to evaluate the evidence in support thereof. Respondent judges finding of lack of probable cause was premised only on the complainants and her witnesses absence during the hearing scheduled by the respondent judge for the judicial determination of probable cause. Petitioner narrated in detail the alleged rape incident both in her Sinumpaang Salaysay[30] dated July 24, 2002 and Complaint-Affidavit[31] dated March 5, 2003. She attended several clarificatory hearings that were conducted in the instant case.The transcript of stenographic notes[32] of the hearing held on October 11, 2002 shows that she positively identified Arzadon as her assailant, and the specific time and place of the incident.She also claimed that she bore a child as a result of the rape and, in support of her contentions, presented the child and her birth certificate as evidence. In contrast, Arzadon merely relied on the defense of alibi which is the weakest of all defenses. After a careful examination of the records, we find that there is sufficient evidence to establish probable cause.The gravamen of rape is the carnal knowledge by the accused of the private complainant under any of the circumstances provided in Article 335 of the Revised Penal Code, as amended.[33]Petitioner has categorically stated that Arzadon raped her, recounting her ordeal in detail during the preliminary investigations. Taken with the other evidence presented before the investigating prosecutors, such is sufficient for purposes of establishing probable cause.It is well-settled that a finding of probable cause need not be based on clear and convincing evidence beyond reasonable doubt. Probable cause is that which engenders a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof and should be held for trial.It does not require that the evidence would justify conviction. [34] It is clear therefore that respondent Judge Carbonell gravely abused his discretion in dismissing Criminal Case No. 6983 for lack of probable cause on the ground that petitioner and her witnesses failed to take the witness stand.Considering there is ample evidence and sufficient basis on record to support a finding of probable cause, it was unnecessary for him to take the further step of examining the petitioner and her witnesses. Moreover, he erred in holding that petitioners absences in the scheduled hearings were indicative of a lack of interest in prosecuting the case.In fact, the records show that she has relentlessly pursued the same. Needless to say, a full-blown trial is to be preferred to ferret out the truth.[35]As it were, the incidents of this case have been pending for almost five years without having even passed the preliminary investigation stage.Suffice to say that the credibility of petitioner may be tested during the trial where the respective allegations and defenses of the complainant and

the accused are properly ventilated. It is only then that the truth as to Arzadons innocence or guilt can be determined. WHEREFORE, the petition is GRANTED.The Orders of the Regional Trial Court, Branch 27, San Fernando, La Union dated December 16, 2005, and February 3, 2006 dismissing Criminal Case No. 6983 for lack of probable cause are REVERSED and SET ASIDE, and the Information in the said case is herebyREINSTATED.The Regional Trial Court, Branch 25, Manila is DIRECTED to take cognizance of the case and let the records thereof be REMANDED to the said court for further proceedings. SO ORDERED.

G.R. No. 170180 : November 23, 2007 ARSENIO VERGARA VALDEZ, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent. DECISION TINGA, J.:cra:nad The sacred right against an arrest, search or seizure without valid warrant is not only ancient. It is also zealously safeguarded. The Constitution guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.1 Any evidence obtained in violation of said right shall be inadmissible for any purpose in any proceeding. Indeed, while the power to search and seize may at times be necessary to the public welfare, still it must be exercised and the law implemented without contravening the constitutional rights of the citizens, for the enforcement of no statute is of sufficient importance to justify indifference to the basic principles of government.2 cra On appeal is the Decision3 of the Court of Appeals dated 28 July 2005, affirming the Judgment4 of the Regional Trial Court (RTC), Branch 31, Agoo, La Union dated 31 March 2004 finding petitioner Arsenio Vergara Valdez guilty beyond reasonable doubt of violating Section 11 of Republic Act No. 9165 (R.A. No. 9165)5 and sentencing him to suffer the penalty of imprisonment ranging from eight (8) years and one (1) day of prision mayor medium as minimum to fifteen (15) years of reclusion temporal medium as maximum and ordering him to pay a fine of P350,000.00.6 I. On 26 June 2003, petitioner was charged with violation of Section 11, par. 2(2) of R.A. No. 9165 in an Information7 which reads:cra:nad That on or about the 17th day of March 2003, in the Municipality of Aringay, Province of La Union, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, did then and there willfully, unlawfully and feloniously have in his possession, control and custody dried marijuana leaves wrapped in a cellophane and newspaper page, weighing more or less twenty-five (25) grams, without first securing the necessary permit, license or prescription from the proper government agency. CONTRARY TO LAW.8 cra On arraignment, petitioner pleaded not guilty. Thereafter, trial on the merits ensued with the prosecution presenting the three (3) barangay tanods of San Benito Norte, Aringay, La Union namely, Rogelio Bautista (Bautista), Nestor Aratas (Aratas) and Eduardo Ordoo (Ordoo), who arrested petitioner. Bautista testified that at around 8:00 to 8:30 p.m. of 17 March 2003, he was conducting the routine patrol along the National Highway in Barangay San Benito Norte, Aringay, La Union together with Aratas and Ordoo when they noticed petitioner, lugging a bag, alight from a mini-bus. The tanods observed that petitioner, who appeared suspicious to them, seemed to be looking for something. They thus approached him but the latter purportedly attempted to run away. They chased him,

put him under arrest and thereafter brought him to the house of Barangay Captain Orencio Mercado (Mercado) where he, as averred by Bautista, was ordered by Mercado to open his bag. Petitioner's bag allegedly contained a pair of denim pants, eighteen pieces of eggplant and dried marijuana leaves wrapped in newspaper and cellophane. It was then that petitioner was taken to the police station for further investigation.9 cra Aratas and Ordoo corroborated Bautista's testimony on most material points. On cross-examination, however, Aratas admitted that he himself brought out the contents of petitioner's bag before petitioner was taken to the house of Mercado.10 Nonetheless, he claimed that at Mercado's house, it was petitioner himself who brought out the contents of his bag upon orders from Mercado. For his part, Ordoo testified that it was he who was ordered by Mercado to open petitioner's bag and that it was then that they saw the purported contents thereof.11 cra The prosecution likewise presented Police Inspector Valeriano Laya II (Laya), the forensic chemist who conducted the examination of the marijuana allegedly confiscated from petitioner. Laya maintained that the specimen submitted to him for analysis, a sachet of the substance weighing 23.10 grams and contained in a plastic bag, tested positive of marijuana. He disclosed on cross-examination, however, that he had knowledge neither of how the marijuana was taken from petitioner nor of how the said substance reached the police officers. Moreover, he could not identify whose marking was on the inside of the cellophane wrapping the marijuana leaves.12 cra The charges were denied by petitioner. As the defense's sole witness, he testified that at around 8:30 p.m. on 17 March 2003, he arrived in Aringay from his place in Curro-oy, Santol, La Union. After alighting from the bus, petitioner claimed that he went to the house of a friend to drink water and then proceeded to walk to his brother's house. As he was walking, prosecution witness Ordoo, a cousin of his brother's wife, allegedly approached him and asked where he was going. Petitioner replied that he was going to his brother's house. Ordoo then purportedly requested to see the contents of his bag and appellant acceded. It was at this point that Bautista and Aratas joined them. After inspecting all the contents of his bag, petitioner testified that he was restrained by the tanod and taken to the house of Mercado. It was Aratas who carried the bag until they reached their destination.13 cra Petitioner maintained that at Mercado's house, his bag was opened by the tanod and Mercado himself. They took out an item wrapped in newspaper, which later turned out to be marijuana leaves. Petitioner denied ownership thereof. He claimed to have been threatened with imprisonment by his arrestors if he did not give the prohibited drugs to someone from the east in order for them to apprehend such person. As petitioner declined, he was brought to the police station and charged with the instant offense. Although petitioner divulged that it was he who opened and took out the contents of his bag at his friend's house, he averred that it was one of the tanod who did so at Mercado's house and that it was only there that they saw the marijuana for the first time.14 cra e. replied that he was going to his brother'en proceeded to walk to his brother'w Finding that the prosecution had proven petitioner's guilt beyond reasonable doubt, the RTC rendered judgment against him and sentenced him to suffer indeterminate imprisonment ranging from eight (8) years and one (1) day of prision

mayor medium as minimum to fifteen (15) years of reclusion temporal medium as maximum and ordered him to pay a fine of P350,000.00.15cra Aggrieved, petitioner appealed the decision of the RTC to the Court of Appeals. On 28 July 2005, the appellate court affirmed the challenged decision. The Court of Appeals, finding no cogent reason to overturn the presumption of regularity in favor of the barangay tanod in the absence of evidence of ill-motive on their part, agreed with the trial court that there was probable cause to arrest petitioner. It observed further:cra:nad That the prosecution failed to establish the chain of custody of the seized marijuana is of no moment. Such circumstance finds prominence only when the existence of the seized prohibited drugs is denied. In this case, accused-appellant himself testified that the marijuana wrapped in a newspaper was taken from his bag. The corpus delicti of the crime, i.e.[,] the existence of the marijuana and his possession thereof, was amply proven by accused-appellant Valdez's own testimony.16 chanroblesvirtuallawlibary In this appeal, petitioner prays for his acquittal and asserts that his guilt of the crime charged had not been proven beyond reasonable doubt. He argues, albeit for the first time on appeal, that the warrantless arrest effected against him by the barangay tanod was unlawful and that the warrantless search of his bag that followed was likewise contrary to law. Consequently, he maintains, the marijuana leaves purportedly seized from him are inadmissible in evidence for being the fruit of a poisonous tree. Well-settled is the rule that the findings of the trial court on the credibility of witnesses and their testimonies are accorded great respect and weight, in the absence of any clear showing that some facts and circumstances of weight or substance which could have affected the result of the case have been overlooked, misunderstood or misapplied.17 cra After meticulous examination of the records and evidence on hand, however, the Court finds and so holds that a reversal of the decision a quounder review is in order. II. At the outset, we observe that nowhere in the records can we find any objection by petitioner to the irregularity of his arrest before his arraignment. Considering this and his active participation in the trial of the case, jurisprudence dictates that petitioner is deemed to have submitted to the jurisdiction of the trial court, thereby curing any defect in his arrest. The legality of an arrest affects only the jurisdiction of the court over his person.18 Petitioner's warrantless arrest therefore cannot, in itself, be the basis of his acquittal. However, to determine the admissibility of the seized drugs in evidence, it is indispensable to ascertain whether or not the search which yielded the alleged contraband was lawful. The search, conducted as it was without a warrant, is justified only if it were incidental to a lawful arrest.19 Evaluating the evidence on record in its totality, as earlier intimated, the reasonable conclusion is that the arrest of petitioner without a warrant is not lawful as well.

Petitioner maintains, in a nutshell, that after he was approached by the tanod and asked to show the contents of his bag, he was simply herded without explanation and taken to the house of the barangay captain. On their way there, it was Aratas who carried his bag. He denies ownership over the contraband allegedly found in his bag and asserts that he saw it for the first time at the barangay captain's house. Even casting aside petitioner's version and basing the resolution of this case on the general thrust of the prosecution evidence, the unlawfulness of petitioner's arrest stands out just the same. Section 5, Rule 113 of the Rules on Criminal Procedure provides the only occasions on which a person may be arrested without a warrant, to wit:cra:nad Section 5. Arrest without warrant; when lawful.-A peace officer or a private person may, without a warrant, arrest a person:cra:nad (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. xxx It is obvious that based on the testimonies of the arresting barangay tanod, not one of these circumstances was obtaining at the time petitioner was arrested. By their own admission, petitioner was not committing an offense at the time he alighted from the bus, nor did he appear to be then committing an offense.20 The tanod did not have probable cause either to justify petitioner's warrantless arrest. For the exception in Section 5(a), Rule 113 to operate, this Court has ruled that two (2) elements must be present: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer. 21 Here, petitioner's act of looking around after getting off the bus was but natural as he was finding his way to his destination. That he purportedly attempted to run away as the tanod approached him is irrelevant and cannot by itself be construed as adequate to charge the tanod with personal knowledge that petitioner had just engaged in, was actually engaging in or was attempting to engage in criminal activity. More importantly,

petitioner testified that he did not run away but in fact spoke with the barangay tanod when they approached him. Even taking the prosecution's version generally as the truth, in line with our assumption from the start, the conclusion will not be any different. It is not unreasonable to expect that petitioner, walking the street at night, after being closely observed and then later tailed by three unknown persons, would attempt to flee at their approach. Flight per se is not synonymous with guilt and must not always be attributed to one's consciousness of guilt.22 Of persuasion was the Michigan Supreme Court when it ruled in People v. Shabaz23 that "[f]light alone is not a reliable indicator of guilt without other circumstances because flight alone is inherently ambiguous." Alone, and under the circumstances of this case, petitioner's flight lends itself just as easily to an innocent explanation as it does to a nefarious one. Moreover, as we pointed out in People v. Tudtud,24 "[t]he phrase 'in his presence' therein, connot[es] penal knowledge on the part of the arresting officer. The right of the accused to be secure against any unreasonable searches on and seizure of his own body and any deprivation of his liberty being a most basic and fundamental one, the statute or rule that allows exception to the requirement of a warrant of arrest is strictly construed. Its application cannot be extended beyond the cases specifically provided by law." 25 cra Indeed, the supposed acts of petitioner, even assuming that they appeared dubious, cannot be viewed as sufficient to incite suspicion of criminal activity enough to validate his warrantless arrest.26 If at all, the search most permissible for the tanod to conduct under the prevailing backdrop of the case was a stop-and-frisk to allay any suspicion they have been harboring based on petitioner's behavior. However, a stop-and-frisk situation, following Terry v. Ohio,27 must precede a warrantless arrest, be limited to the person's outer clothing, and should be grounded upon a genuine reason, in light of the police officer's experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him.28 cra Accordingly, petitioner's waiver of his right to question his arrest notwithstanding, the marijuana leaves allegedly taken during the search cannot be admitted in evidence against him as they were seized during a warrantless search which was not lawful.29 As we pronounced in People v. Bacla-an A waiver of an illegal warrantless arrest does not also mean a waiver of the inadmissibility of evidence seized during an illegal warrantless arrest. The following searches and seizures are deemed permissible by jurisprudence: (1) search of moving vehicles (2) seizure in plain view (3) customs searches (4) waiver or consent searches (5) stop and frisk situations (Terry Search) and (6) search incidental to a lawful arrest. The last includes a valid warrantless search and seizure pursuant to an equally valid warrantless arrest, for, while as a rule, an arrest is considered legitimate if effected with a valid warrant of arrest, the Rules of Court recognize permissible warrantless arrests, to wit: (1) arrests in flagrante delicto, (2) arrests effected in hot pursuit, and, (3) arrests of escaped prisoners.30 cra When petitioner was arrested without a warrant, he was neither caught in flagrante delicto committing a crime nor was the arrest effected in hot pursuit. Verily, it

cannot therefore be reasonably argued that the warrantless search conducted on petitioner was incidental to a lawful arrest. In its Comment, the Office of the Solicitor General posits that apart from the warrantless search being incidental to his lawful arrest, petitioner had consented to the search. We are not convinced. As we explained in Caballes v. Court of Appeals31 Doubtless, the constitutional immunity against unreasonable searches and seizures is a personal right which may be waived. The consent must be voluntary in order to validate an otherwise illegal detention and search, i.e., the consent is unequivocal, specific, and intelligently given, uncontaminated by any duress or coercion. Hence, consent to a search is not to be lightly inferred, but must be shown by clear and convincing evidence. The question whether a consent to a search was in fact voluntary is a question of fact to be determined from the totality of all the circumstances. Relevant to this determination are the following characteristics of the person giving consent and the environment in which consent is given: (1) the age of the defendant; (2) whether he was in a public or secluded location; (3) whether he objected to the search or passively looked on; (4) the education and intelligence of the defendant; (5) the presence of coercive police procedures; (6) the defendant's belief that no incriminating evidence will be found; (7) the nature of the police questioning; (8) the environment in which the questioning took place; and (9) the possibly vulnerable subjective state of the person consenting. It is the State which has the burden of proving, by clear and positive testimony, that the necessary consent was obtained and that it was freely and voluntarily given.32 cra In the case at bar, following the theory of the prosecution- albeit based on conflicting testimonies on when petitioner's bag was actually opened, it is apparent that petitioner was already under the coercive control of the public officials who had custody of him when the search of his bag was demanded. Moreover, the prosecution failed to prove any specific statement as to how the consent was asked and how it was given, nor the specific words spoken by petitioner indicating his alleged "consent." Even granting that petitioner admitted to opening his bag when Ordoo asked to see its contents, his implied acquiescence, if at all, could not have been more than mere passive conformity given under coercive or intimidating circumstances and hence, is considered no consent at all within the contemplation of the constitutional guarantee.33 As a result, petitioner's lack of objection to the search and seizure is not tantamount to a waiver of his constitutional right or a voluntary submission to the warrantless search and seizure.34 III. Notably, the inadmissibility in evidence of the seized marijuana leaves for being the fruit of an unlawful search is not the lone cause that militates against the case of the prosecution. We likewise find that it has failed to convincingly establish the identity of the marijuana leaves purportedly taken from petitioner's bag.

In all prosecutions for violation of the Dangerous Drugs Act, the following elements must concur: (1) proof that the transaction took place; and (2) presentation in court of the corpus delicti or the illicit drug as evidence.35 The existence of dangerous drugs is a condition sine qua non for conviction for the illegal sale of dangerous drugs, it being the very corpus delicti of the crime.36 cra In a line of cases, we have ruled as fatal to the prosecution's case its failure to prove that the specimen submitted for laboratory examination was the same one allegedly seized from the accused.37 There can be no crime of illegal possession of a prohibited drug when nagging doubts persist on whether the item confiscated was the same specimen examined and established to be the prohibited drug.38 As we discussed in People v. Orteza39 , where we deemed the prosecution to have failed in establishing all the elements necessary for conviction of appellant for illegal sale of shabu First, there appears nothing in the record showing that police officers complied with the proper procedure in the custody of seized drugs as specified in People v. Lim, i.e., any apprehending team having initial control of said drugs and/or paraphernalia should, immediately after seizure or confiscation, have the same physically inventoried and photographed in the presence of the accused, if there be any, and or his representative, who shall be required to sign the copies of the inventory and be given a copy thereof. The failure of the agents to comply with the requirement raises doubt whether what was submitted for laboratory examination and presented in court was actually recovered from appellant. It negates the presumption that official duties have been regularly performed by the police officers. In People v. Laxa, where the buy-bust team failed to mark the confiscated marijuana immediately after the apprehension of the accused, the Court held that the deviation from the standard procedure in anti-narcotics operations produced doubts as to the origins of the marijuana. Consequently, the Court concluded that the prosecution failed to establish the identity of the corpus delicti. The Court made a similar ruling in People v. Kimura, where the Narcom operatives failed to place markings on the seized marijuana at the time the accused was arrested and to observe the procedure and take custody of the drug. More recently, in Zarraga v. People, the Court held that the material inconsistencies with regard to when and where the markings on the shabu were made and the lack of inventory on the seized drugs created reasonable doubt as to the identity of the corpus delicti. The Court thus acquitted the accused due to the prosecution's failure to indubitably show the identity of the shabu. In the case at bar, after the arrest of petitioner by the barangay tanod, the records only show that he was taken to the house of the barangay captain and thereafter to the police station. The Joint Affidavit40 executed by the tanod merely states that they confiscated the marijuana leaves which they brought to the police station together with petitioner. Likewise, the Receipt41 issued by the Aringay Police Station merely

acknowledged receipt of the suspected drugs supposedly confiscated from petitioner. Not only did the three tanod contradict each other on the matter of when petitioner's bag was opened, they also gave conflicting testimony on who actually opened the same. The prosecution, despite these material inconsistencies, neglected to explain the discrepancies. Even more damning to its cause was the admission by Laya, the forensic chemist, that he did not know how the specimen was taken from petitioner, how it reached the police authorities or whose marking was on the cellophane wrapping of the marijuana. The non-presentation, without justifiable reason, of the police officers who conducted the inquest proceedings and marked the seized drugs, if such was the case, is fatal to the case. Plainly, the prosecution neglected to establish the crucial link in the chain of custody of the seized marijuana leaves from the time they were first allegedly discovered until they were brought for examination by Laya. The Court of Appeals found as irrelevant the failure of the prosecution to establish the chain of custody over the seized marijuana as such "[f]inds prominence only when the existence of the seized prohibited drug is denied." 42 We cannot agree. To buttress its ratiocination, the appellate court narrowed on petitioner's testimony that the marijuana was taken from his bag, without taking the statement in full context.43 Contrary to the Court of Appeals' findings, although petitioner testified that the marijuana was taken from his bag, he consistently denied ownership thereof.44 Furthermore, it defies logic to require a denial of ownership of the seized drugs before the principle of chain of custody comes into play. The onus of proving culpability in criminal indictment falls upon the State. In conjunction with this, law enforcers and public officers alike have the corollary duty to preserve the chain of custody over the seized drugs. The chain of evidence is constructed by proper exhibit handling, storage, labeling and recording, and must exist from the time the evidence is found until the time it is offered in evidence. Each person who takes possession of the specimen is duty-bound to detail how it was cared for, safeguarded and preserved while in his or her control to prevent alteration or replacement while in custody. This guarantee of the integrity of the evidence to be used against an accused goes to the very heart of his fundamental rights. The presumption of regularity in the performance of official duty invoked by the prosecution and relied upon by the courts a quo cannot by itself overcome the presumption of innocence nor constitute proof of guilt beyond reasonable doubt.45 Among the constitutional rights enjoyed by an accused, the most primordial yet often disregarded is the presumption of innocence. This elementary principle accords every accused the right to be presumed innocent until the contrary is proven beyond reasonable doubt. Thus, the burden of proving the guilt of the accused rests upon the prosecution.

Concededly, the evidence of the defense is weak and uncorroborated. Nevertheless, this "[c]annot be used to advance the cause of the prosecution as its evidence must stand or fall on its own weight and cannot be allowed to draw strength from the weakness of the defense." 46 Moreover, where the circumstances are shown to yield two or more inferences, one inconsistent with the presumption of innocence and the other compatible with the finding of guilt, the court must acquit the accused for the reason that the evidence does not satisfy the test of moral certainty and is inadequate to support a judgment of conviction. 47cra Drug addiction has been invariably denounced as "an especially vicious crime,"48 and "one of the most pernicious evils that has ever crept into our society,"49 for those who become addicted to it "not only slide into the ranks of the living dead, what is worse, they become a grave menace to the safety of lawabiding members of society,"50 whereas "peddlers of drugs are actually agents of destruction."51 Indeed, the havoc created by the ruinous effects of prohibited drugs on the moral fiber of society cannot be underscored enough. However, in the rightfully vigorous campaign of the government to eradicate the hazards of drug use and drug trafficking, it cannot be permitted to run roughshod over an accused's right to be presumed innocent until proven to the contrary and neither can it shirk from its corollary obligation to establish such guilt beyond reasonable doubt. In this case, the totality of the evidence presented utterly fails to overcome the presumption of innocence which petitioner enjoys. The failure of the prosecution to prove all the elements of the offense beyond reasonable doubt must perforce result in petitioner's exoneration from criminal liability. IV. A final word. We find it fitting to take this occasion to remind the courts to exercise the highest degree of diligence and prudence in deliberating upon the guilt of accused persons brought before them, especially in light of the fundamental rights at stake. Here, we note that the courts a quo neglected to give more serious consideration to certain material issues in the determination of the merits of the case. We are not oblivious to the fact that in some instances, law enforcers resort to the practice of planting evidence to extract information or even harass civilians. Accordingly, courts are duty-bound to be "[e]xtra vigilant in trying drug cases lest an innocent person be made to suffer the unusually severe penalties for drug offenses."52 In the same vein, let this serve as an admonition to police officers and public officials alike to perform their mandated duties with commitment to the highest degree of diligence, righteousness and respect for the law. WHEREFORE, the assailed Decision is REVERSED and SET ASIDE. Petitioner Arsenio Vergara Valdez is ACQUITTED on reasonable doubt. The Director of the Bureau of Corrections is directed to cause the immediate release of petitioner, unless the latter is being lawfully held for another cause; and to inform the Court of

the date of his release, or the reasons for his continued confinement, within ten (10) days from notice. No costs. SO ORDERED.

[G.R. No. 121087. August 26, 1999] FELIPE NAVARRO, Petitioner, vs. THE COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, Respondents. DECISION MENDOZA, J.: This is a petition for review on certiorari of the decision[1 of the Court of Appeals, dated December 14, 1994, which affirmed the judgment of the Regional Trial Court, Branch 5, Lucena City, dated July 27, 1992, finding petitioner Felipe Navarro guilty beyond reasonable doubt of homicide and sentencing him to ten (10) years of prision mayor, as minimum, and fourteen (14) years, eight (8) months, and one (1) day of reclusion temporal, as maximum, but increased the death indemnity awarded to the heirs of the victim, Enrique Ike Lingan, fromP30,000.00 to P50,000.00. The information against petitioner alleged That on or about the 4th day of February, 1990, in the nighttime, in the City of Lucena, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the said accused, being then a member of the Lucena Integrated National Police, with intent to kill, did then and there willfully, unlawfully and feloniously assault one Ike Lingan inside the Lucena police headquarters, where authorities are supposed to be engaged in the discharge of their duties, by boxing the said Ike Lingan in the head with the butt of a gun and thereafter when the said victim fell, by banging his head against the concrete pavement, as a consequence of which said Ike Lingan suffered cerebral concussion and shock which directly caused his death. The evidence shows that, at around 8:40 in the evening of February 4, 1990, Stanley Jalbuena and Enrique Ike Lingan, who were reporters of the radio station DWTI in Lucena City, together with one Mario Ilagan, went to the Entertainment City following reports that it was showing nude dancers. After the three had seated themselves at a table and ordered beer, a scantily clad dancer appeared on stage and began to perform a strip act. As she removed her brassieres, Jalbuena brought out his camera and took a picture.[2 At that point, the floor manager, Dante Liquin, with a security guard, Alex Sioco, approached Jalbuena and demanded to know why he took a picture.[3 Jalbuena replied: Wala kang pakialam, because this is my job.[4 Sioco pushed Jalbuena towards the table as he warned the latter that he would kill him.[5 When Jalbuena saw that Sioco was about to pull out his gun, he ran out of the joint followed by his companions.[6 Jalbuena and his companions went to the police station to report the matter. Three of the policemen on duty, including petitioner Navarro, were having drinks in front of the police station, and they asked Jalbuena and his companions to join them. Jalbuena declined and went to the desk officer, Sgt. Aonuevo, to report the incident. In a while, Liquin and Sioco arrived on a motorcycle.[7 Sioco and Liquin were met by petitioner Navarro who talked with them in a corner for around fifteen

minutes.[8 Afterwards, petitioner Navarro turned to Jalbuena and, pushing him to the wall, said to him: Putang ina, kinakalaban mo si Kabo Liquin, anak yan ni Kabo Liquin, hindi mo ba kilala?[9 Petitioner Navarro then pulled out his firearm and cocked it, and, pressing it on the face of Jalbuena, said, Ano, uutasin na kita?[10 At this point, Lingan intervened and said to petitioner Navarro: Huwag namang ganyan, pumarito kami para magpablotter, I am here to mediate.[11 Petitioner Navarro replied: Walang press, press, mag-sampu pa kayo.[12 He then turned to Sgt. Aonuevo and told him to make of record the behavior of Jalbuena and Lingan.[13 This angered Lingan, who said: O, di ilagay mo diyan.[14 Petitioner Navarro retorted: Talagang ilalagay ko.[15 The two then had a heated exchange.[16 Finally, Lingan said: Masyado kang abusado, alisin mo yang baril mo at magsuntukan na lang tayo.[17 Petitioner Navarro replied: Ah, ganoon?[18 As Lingan was about to turn away, petitioner Navarro hit him with the handle of his pistol above the left eyebrow. Lingan fell on the floor, blood flowing down his face. He tried to get up, but petitioner Navarro gave him a fist blow on the forehead which floored him.[19 Petitioner Navarro turned to Jalbuena and said: Kita mo yan ha, buhay kang testigo, si Ike Lingan ang naghamon.[20 He said to Sgt. Aonuevo: Ilagay mo diyan sa blotter, sa harap ni Alex Sioco at Dante Liquin, na si Ike Lingan ang naghamon.[21 He then poked his gun at the right temple of Jalbuena and made him sign his name on the blotter.[22 Jalbuena could not affix his signature. His right hand was trembling and he simply wrote his name in print.[23 Capt. Coronado, the station commander, called petitioner Navarro to his office, while a policeman took Lingan to the Quezon Memorial Hospital. The station manager of DWTI, Boy Casaada, arrived and, learning that Lingan had been taken to the hospital, proceeded there. But Lingan died from his injuries.[24 Unknown to petitioner Navarro, Jalbuena was able to record on tape the exchange between petitioner and the deceased.[25 The following is an excerpt from the tape recording: Lingan: Pare, you are abusing yourself. Navarro: Who is that abusing? Lingan: Im here to mediate. Do not include me in the problem. Im out of the problem. .... Navarro: Wala sa akin yan. Ang kaso lang . . . .

Lingan: Kalaban mo ang media, pare. Ako at si Stanley, dalawa kami. Okay. Do not fight with me. I just came here to ayusin things. Do not say bad things against me. Im the number one loko sa media. Im the best media man. . . . Navarro: Huwag tayong mag-lokohan sa ganyan! Huwag na tayong mag-takotan! Huwag mong sabihing loko ka! Lingan: Im brave also. Navarro: Ay lalo na ako. Tahimik lang naman ako. Wala ka namang masasabi sa akin dahil nag-tatrabaho lang ako ng ayon sa serbisyo ko. Lingan: You are challenging me and him. . . . Navarro: Ay walastik ka naman Ike! Pag may problema ka dito sinasabihan kita na may balita tayong maganda. Pambihira ka Ike. Huwag mong sabihin na . . . Parang minomonopoly mo eh. Lingan: Pati ako kalaban ninyo. Navarro: Talagang kalaban namin ang press. Lahat, hindi lang ikaw! Lingan: You are wrong. Bakit kalaban nyo ang press? Navarro: Pulis ito! Aba! Lingan: Alisin mo ang baril mo! Alisin mo ang baril mo! Suntukan tayo, sige. Navarro: Mayabang ka ah! (Sounds of a scuffle) Navarro: Hinamon ako nyan! Pare hinamon ako nyan! Pare hinamon ako nyan, testigo kayo. Alisin ko daw ang baril ko. Hinamon ako nyan. Pare, ilagay mo diyan, hinamon ako sa harap ni Stanley. Testigo kayo, hinamon ako. Pulis tayo eh. Puta, buti nga, suntok lang ang inabot nyan. Sa harap ni Alex, ni Joe, ni Stanley, hinamon ako. Pare, hinamon ako, kinig nyo ha. Hinamon ako nyan. Sige, dalhin nyo sa hospital yan. Petitioner Felipe Navarro claims that it was the deceased who tried to hit him twice, but he (petitioner) was able to duck both times, and that Lingan was so drunk he fell on the floor twice, each time hitting his head on the concrete.[26 In giving credence to the evidence for the prosecution, the trial court stated: After a thorough and in-depth evaluation of the evidence adduced by the prosecution and the defense, this court finds that the evidence for the prosecution is the more credible, concrete and sufficient to create that moral certainty in the mind of the court that accused herein is criminally responsible.

The defenses evidence which consists of outright denial could not under the circumstance overturn the strength of the prosecutions evidence. This court finds that the prosecution witnesses, more particularly Stanley Jalbuena, lacked any motive to make false accusation, distort the truth, testify falsehood or cause accusation of one who had neither brought him harm or injury. Going over the evidence on record, the postmortem report issued by Dra. Eva Yamamoto confirms the detailed account given by Stanley Jalbuena on how Lingan sustained head injuries. Said post-mortem report together with the testimony of Jalbuena sufficiently belie the claim of the defense that the head injuries of deceased Lingan were caused by the latters falling down on the concrete pavement head first. The Court of Appeals affirmed: We are far from being convinced by appellants aforesaid disquisition. We have carefully evaluated the conflicting versions of the incident as presented by both parties, and we find the trial courts factual conclusions to have better and stronger evidentiary support. In the first place, the mere fact that Jalbuena was himself a victim of appellants aggression does not impair the probative worth of his positive and logical account of the incident in question. In fact, far from proving his innocence, appellants unwarranted assault upon Jalbuena, which the defense has virtually admitted, clearly betrays his violent character or disposition and his capacity to harm others. Apparently, the same motivation that led him into assailing Jalbuena must have provoked him into also attacking Lingan who had interceded for Jalbuena and humiliated him and further challenged him to a fist fight. .... On the other hand, appellants explanation as to how Lingan was injured is too tenuous and illogical to be accepted. It is in fact contradicted by the number, nature and location of Lingans injuries as shown in the post-mortem report (Exh. D). According to the defense, Lingan fell two times when he was outbalanced in the course of boxing the appellant. And yet, Lingan suffered lacerated wounds in his left forehead, left eyebrow, between his left and right eyebrows, and contusion in the right temporal region of the head (Exh. E). Certainly, these injuries could not have resulted from Lingans accidental fall. Hence, this appeal. Petitioner Navarro contends: THE HONORABLE COURT OF APPEALS HAS DECIDED THE CASE NOT IN ACCORD WITH LAW AND WITH THE APPLICABLE DECISIONS OF THE SUPREME COURT. ITS CONCLUSION IS A FINDING BASED ON SPECULATION, SURMISE OR CONJECTURE; THE

INFERENCE IT MADE IS MANIFESTLY MISTAKEN, ABSURD OR IMPOSSIBLE; IT COMMITTED GRAVE ABUSE OF DISCRETION; ITS JUDGMENT IS BASED ON A MISAPPREHENSION OF FACTS; ITS FINDING IS CONTRADICTED BY EVIDENCE ON RECORD; AND ITS FINDING IS DEVOID OF SUPPORT IN THE RECORD. The appeal is without merit. First. Petitioner Navarro questions the credibility of the testimony of Jalbuena on the ground that he was a biased witness, having a grudge against him. The testimony of a witness who has an interest in the conviction of the accused is not, for this reason alone, unreliable.[27 Trial courts, which have the opportunity to observe the facial expressions, gestures, and tones of voice of a witness while testifying, are competent to determine whether his or her testimony should be given credence.[28 In the instant case, petitioner Navarro has not shown that the trial court erred in according weight to the testimony of Jalbuena. Indeed, Jalbuenas testimony is confirmed by the voice recording he had made. It may be asked whether the tape is admissible in view of R.A. No. 4200, which prohibits wire tapping. The answer is in the affirmative. The law provides: SECTION 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape-recorder, or however otherwise described: It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in section 3 hereof, shall not be covered by this prohibition. .... SEC. 4. Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation.

Thus, the law prohibits the overhearing, intercepting, or recording of private communications.[29 Since the exchange between petitioner Navarro and Lingan was not private, its tape recording is not prohibited. Nor is there any question that it was duly authenticated. A voice recording is authenticated by the testimony of a witness (1) that he personally recorded the conversation; (2) that the tape played in court was the one he recorded; and (3) that the voices on the tape are those of the persons such are claimed to belong.[30 In the instant case, Jalbuena testified that he personally made the voice recording;[31 that the tape played in court was the one he recorded;[32 and that the speakers on the tape were petitioner Navarro and Lingan.[33 A sufficient foundation was thus laid for the authentication of the tape presented by the prosecution. Second. The voice recording made by Jalbuena established: (1) that there was a heated exchange between petitioner Navarro and Lingan on the placing in the police blotter of an entry against him and Jalbuena; and (2) that some form of violence occurred involving petitioner Navarro and Lingan, with the latter getting the worst of it. Furthermore, Dr. Eva Yamamoto, who performed the autopsy on the body of Lingan, issued a medical certificate,[34 dated February 5, 1990, containing the following findings: Post Mortem Findings: = Dried blood, forehead & face = No blood oozed from the ears, nose & mouth = Swelling, 3 cm x 2 cm, temporal region, head, right = Lacerated wound, 2 cm in length, 1-2 in depth, lateral, eyebrow, Left = Lacerated wound, 0.5 cm in length, superficial, between the left & right eyebrow = Lacerated wound, 2 cm in length, 1 cm in depth, forehead, Left = Cyanosis of the tips of fingers & toes CAUSE OF DEATH: = CEREBRAL CONCUSSION & SHOCK = BLOW ON THE HEAD Dr. Yamamoto testified: Q Give your opinion as to what was the possible cause of this findings number one, which is oozing of blood from the forehead?

A It may be due to a blow on the forehead or it bumped to a hard object, sir. Q Could a metal like a butt of a gun have caused this wound No. 1? A It is possible, sir. Q And in the alternative, could have it been caused by bumping on a concrete floor? A Possible, sir. FISCAL: What could have been the cause of the contusion and swelling under your findings No. 2 doctor? WITNESS:

A It could have been caused by a blow of a hard object, sir. Q What about the shock, what could have caused it? A It was due to peripheral circulatory failure, sir. Q Could any one of both caused the death of the victim? A Yes, sir. Q Could cerebral concussion alone have caused the death of the deceased? A May be, sir. Q How about shock? A Yes, sir. FISCAL:

It may be caused by bumping to a hard object, sir. Which of these two more likely to cause death? Q Could a butt of a gun have caused it doctor? WITNESS: A The swelling is big so it could have not been caused by a butt of a gun because the butt of a gun is small, sir. Q How about this findings No. 4? A By a bump or contact of the body to a hard object, sir. Q And findings No. 5 what could have caused it? A Same cause, sir. Q This findings No. 6 what could have caused this wound? A Same thing, sir. Q How about this last finding, cyanosis of tips of fingers and toes, what could have caused it doctor? WITNESS: It indicates there was cardiac failure, sir. FISCAL: In this same post mortem report and under the heading cause of death it states: Cause of Death: Cerebral concussion and Shock, will you explain it? A Cerebral concussion means in Tagalog naalog ang utak or jarring of the brain, sir. Q What could have been the cause of jarring of the brain? A It is caused by peripheral circulatory failure as I have said earlier, sir. .... FISCAL: Could a bumping or pushing of ones head against a concrete floor have caused shock? WITNESS: Possible, sir. How about striking with a butt of a gun, could it cause shock? A Possible, sir.[35 The above testimony clearly supports the claim of Jalbuena that petitioner Navarro hit Lingan with the handle of his pistol above the left eyebrow and struck him on the forehead with his fist. Third. It is argued that the mitigating circumstance of sufficient provocation or threat on the part of the offended party immediately preceding the act should have been appreciated in favor of petitioner Navarro. Provocation is Shock, sir. Q Please explain further the meaning of the medical term shock?

defined to be any unjust or improper conduct or act of the offended party, capable of exciting, inciting, or irritating anyone.[36 The provocation must be sufficient and should immediately precede the act.[37 People v. Paga, 79 SCRA 570 (1977).37 To be sufficient, it must be adequate to excite a person to commit the wrong, which must accordingly be proportionate in gravity.[38 And it must immediately precede the act so much so that there is no interval between the provocation by the offended party and the commission of the crime by the accused.[39 In the present case, the remarks of Lingan, which immediately preceded the act of petitioner, constituted sufficient provocation. In People v. Macaso,[40 we appreciated this mitigating circumstance in favor of the accused, a policeman, who shot a motorist after the latter had repeatedly taunted him with defiant words. Hence, this mitigating circumstance should be considered in favor of petitioner Navarro. Furthermore, the mitigating circumstance that the offender had no intention to commit so grave a wrong as that committed should also be appreciated in favor of petitioner. The frantic exclamations of petitioner Navarro after the scuffle that it was Lingan who provoked him shows that he had no intent to kill the latter. Thus, this mitigating circumstance should be taken into account in determining the penalty that should be imposed on petitioner Navarro. The allowance of this mitigating circumstance is consistent with the rule that criminal liability shall be incurred by any person committing a felony although the wrongful act done be different from that which he intended.[41In People v. Castro,[42 the mitigating circumstance of lack of intent to commit so grave a wrong as that committed was appreciated in favor of the accused while finding him guilty of homicide. However, the aggravating circumstance of commission of a crime in a place where the public authorities are engaged in the discharge of their duties should be appreciated against petitioner Navarro. The offense in this case was committed right in the police station where policemen were discharging their public functions.[43 The crime committed as found by the trial court and the Court of Appeals was homicide, for which the penalty under Art. 249 of the Revised Penal Code is reclusion temporal. As there were two mitigating circumstances and one aggravating circumstance, the penalty should be fixed in its minimum period.[44 Applying the Indeterminate Sentence Law, petitioner Navarro should be sentenced to an indeterminate penalty, the minimum of which is within the range of the penalty next lower in degree, i.e., prision mayor, and the maximum of which is reclusion temporal in its minimum period.[45 The indemnity as increased by the Court of Appeals from P30,000.00 to P50,000.00 is in accordance with current jurisprudence.[46 WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the modification that petitioner Felipe Navarro is hereby SENTENCED to suffer a prison term of 8

years of prision mayor, as minimum, to 14 years and 8 months of reclusion temporal, as maximum. SO ORDERED.

G.R. No. 93833 September 28, 1995 SOCORRO D. RAMIREZ, petitioner, vs. HONORABLE COURT OF APPEALS, and ESTER S. GARCIA, respondents. KAPUNAN, J.: A civil case damages was filed by petitioner Socorro D. Ramirez in the Regional Trial Court of Quezon City alleging that the private respondent, Ester S. Garcia, in a confrontation in the latter's office, allegedly vexed, insulted and humiliated her in a "hostile and furious mood" and in a manner offensive to petitioner's dignity and personality," contrary to morals, good customs and public policy." 1 In support of her claim, petitioner produced a verbatim transcript of the event and sought moral damages, attorney's fees and other expenses of litigation in the amount of P610,000.00, in addition to costs, interests and other reliefs awardable at the trial court's discretion. The transcript on which the civil case was based was culled from a tape recording of the confrontation made by petitioner. 2 The transcript reads as follows: Plaintiff Soccoro D. Ramirez (Chuchi) Good Afternoon M'am. Defendant Ester S. Garcia (ESG) Ano ba ang nangyari sa 'yo, nakalimot ka na kung paano ka napunta rito, porke member ka na, magsumbong ka kung ano ang gagawin ko sa 'yo. CHUCHI Kasi, naka duty ako noon. ESG Tapos iniwan no. (Sic) CHUCHI Hindi m'am, pero ilan beses na nila akong binalikan, sabing ganoon ESG Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic) mag explain ka, kasi hanggang 10:00 p.m., kinabukasan hindi ka na pumasok. Ngayon ako ang babalik sa 'yo, nag-aaply ka sa States, nag-aaply ka sa review mo, kung kakailanganin ang certification mo, kalimutan mo na kasi hindi ka sa akin makakahingi. CHUCHI Hindi M'am. Kasi ang ano ko talaga noon icocontinue ko up to 10:00 p.m. ESG Bastos ka, nakalimutan mo na kung paano ka pumasok dito sa hotel. Magsumbong ka sa Union kung gusto mo. Nakalimutan mo na kung paano ka nakapasok dito "Do you think that on your own makakapasok ka kung hindi ako. Panunumbyoyan na kita (Sinusumbatan na kita). CHUCHI Itutuloy ko na M'am sana ang duty ko. ESG Kaso ilang beses na akong binabalikan doon ng mga no (sic) ko.

ESG Nakalimutan mo na ba kung paano ka pumasok sa hotel, kung on your own merit alam ko naman kung gaano ka "ka bobo" mo. Marami ang nag-aaply alam kong hindi ka papasa. CHUCHI Kumuha kami ng exam noon. ESG Oo, pero hindi ka papasa. CHUCHI Eh, bakit ako ang nakuha ni Dr. Tamayo ESG Kukunin ka kasi ako. CHUCHI Eh, di sana ESG Huwag mong ipagmalaki na may utak ka kasi wala kang utak. Akala mo ba makukuha ka dito kung hindi ako. CHUCHI Mag-eexplain ako. ESG Huwag na, hindi ako mag-papa-explain sa 'yo, makaalala ka kung paano ka puma-rito. "Putang-ina" sasabisabihin mo kamag-anak ng nanay at tatay mo ang mga magulang ko. ESG Wala na akong pakialam, dahil nandito ka sa loob, nasa labas ka puwede ka ng hindi pumasok, okey yan nasaloob ka umalis ka doon. CHUCHI Kasi M'am, binbalikan ako ng mga taga Union. ESG Nandiyan na rin ako, pero huwag mong kalimutan na hindi ka makakapasok kung hindi ako. Kung hindi mo kinikilala yan okey lang sa akin, dahil tapos ka na. CHUCHI Ina-ano ko m'am na utang na loob. ESG Huwag na lang, hindi mo utang na loob, kasi kung baga sa no, nilapastangan mo ako. CHUCHI Paano kita nilapastanganan? ESG Mabuti pa lumabas ka na. Hindi na ako makikipagusap sa 'yo. Lumabas ka na. Magsumbong ka. 3 As a result of petitioner's recording of the event and alleging that the said act of secretly taping the confrontation was illegal, private respondent filed a criminal case before the Regional Trial Court of Pasay City for violation of Republic Act 4200, entitled "An Act to prohibit and penalize wire tapping and other related violations of private communication, and other purposes." An information charging petitioner of violation of the said Act, dated October 6, 1988 is quoted herewith:

INFORMATION The Undersigned Assistant City Fiscal Accusses Socorro D. Ramirez of Violation of Republic Act No. 4200, committed as follows: That on or about the 22nd day of February, 1988, in Pasay City Metro Manila, Philippines, and within the jurisdiction of this honorable court, the above-named accused, Socorro D. Ramirez not being authorized by Ester S. Garcia to record the latter's conversation with said accused, did then and there willfully, unlawfully and feloniously, with the use of a tape recorder secretly record the said conversation and thereafter communicate in writing the contents of the said recording to other person. Contrary to law. Pasay City, Metro Asst. City Fiscal Manila, September 16, 1988.

communication. 8 In relation to this, petitioner avers that the substance or content of the conversation must be alleged in the Information, otherwise the facts charged would not constitute a violation of R.A. 4200. 9 Finally, petitioner agues that R.A. 4200 penalizes the taping of a "private communication," not a "private conversation" and that consequently, her act of secretly taping her conversation with private respondent was not illegal under the said act. 10 We disagree. First, legislative intent is determined principally from the language of a statute. Where the language of a statute is clear and unambiguous, the law is applied according to its express terms, and interpretation would be resorted to only where a literal interpretation would be either impossible 11 or absurb or would lead to an injustice. 12 Section 1 of R.A. 4200 entitled, " An Act to Prohibit and Penalized Wire Tapping and Other Related Violations of Private Communication and Other Purposes," provides: Sec. 1. It shall be unlawfull for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise described. The aforestated provision clearly and unequivocally makes it illegal for any person, not authorized by all the parties to any private communication to secretly record such communication by means of a tape recorder. The law makes no distinction as to whether the party sought to be penalized by the statute ought to be a party other than or different from those involved in the private communication. The statute's intent to penalize all persons unauthorized to make such recording is underscored by the use of the qualifier "any". Consequently, as respondent Court of Appeals correctly concluded, "even a (person) privy to a communication who records his private conversation with another without the knowledge of the latter (will) qualify as a violator" 13 under this provision of R.A. 4200. A perusal of the Senate Congressional Records, moreover, supports the respondent court's conclusion that in enacting R.A. 4200 our lawmakers indeed contemplated to make illegal, unauthorized tape recording of private conversations or communications taken either by the parties themselves or by third persons. Thus: xxx xxx xxx Senator Taada: "overhear". That qualified only

Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash the Information on the ground that the facts charged do not constitute an offense, particularly a violation of R.A. 4200. In an order May 3, 1989, the trial court granted the Motion to Quash, agreeing with petitioner that 1) the facts charged do not constitute an offense under R.A. 4200; and that 2) the violation punished by R.A. 4200 refers to a the taping of a communication by a personother than a participant to the communication. 4 From the trial court's Order, the private respondent filed a Petition for Review on Certiorari with this Court, which forthwith referred the case to the Court of Appeals in a Resolution (by the First Division) of June 19, 1989. On February 9, 1990, respondent Court of Appeals promulgated its assailed Decision declaring the trial court's order of May 3, 1989 null and void, and holding that: [T]he allegations sufficiently constitute an offense punishable under Section 1 of R.A. 4200. In thus quashing the information based on the ground that the facts alleged do not constitute an offense, the respondent judge acted in grave abuse of discretion correctible by certiorari. 5 Consequently, on February 21, 1990, petitioner filed a Motion for Reconsideration which respondent Court of Appeals denied in its Resolution 6 dated June 19, 1990. Hence, the instant petition. Petitioner vigorously argues, as her "main and principal issue" 7 that the applicable provision of Republic Act 4200 does not apply to the taping of a private conversation by one of the parties to the conversation. She contends that the provision merely refers to the unauthorized taping of a private conversation by a party other than those involved in the

Senator Padilla: So that when it is intercepted or recorded, the element of secrecy would not appear to be material. Now, suppose, Your Honor, the recording is not made by all the parties but by some parties and involved not criminal cases that would be mentioned under section 3 but would cover, for example civil cases or special proceedings whereby a recording is made not necessarily by all the parties but perhaps by some in an effort to show the intent of the parties because the actuation of the parties prior, simultaneous even subsequent to the contract or the act may be indicative of their intention. Suppose there is such a recording, would you say, Your Honor, that the intention is to cover it within the purview of this bill or outside? Senator Taada: That is covered by the purview of this bill, Your Honor. Senator Padilla: Even if the record should be used not in the prosecution of offense but as evidence to be used in Civil Cases or special proceedings? Senator Taada: That is right. This is a complete ban on tape recorded conversations taken without the authorization of all the parties. Senator Padilla: Now, would that be reasonable, your Honor? Senator Taada: I believe it is reasonable because it is not sporting to record the observation of one without his knowing it and then using it against him. It is not fair, it is not sportsmanlike. If the purpose; Your honor, is to record the intention of the parties. I believe that all the parties should know that the observations are being recorded. Senator Padilla: This might reduce the utility of recorders. Senator Taada: Well no. For example, I was to say that in meetings of the board of directors where a tape recording is taken, there is no objection to this if all the parties know. It is but fair that the people whose remarks and observations are being made should know that the observations are being recorded. Senator Padilla: Now, I can understand.

Senator Taada: That is why when we take statements of persons, we say: "Please be informed that whatever you say here may be used against you." That is fairness and that is what we demand. Now, in spite of that warning, he makes damaging statements against his own interest, well, he cannot complain any more. But if you are going to take a recording of the observations and remarks of a person without him knowing that it is being taped or recorded, without him knowing that what is being recorded may be used against him, I think it is unfair. xxx xxx xxx (Congression Record, Vol. III, No. 31, p. 584, March 12, 1964) Senator Diokno: Do you understand, Mr. Senator, that under Section 1 of the bill as now worded, if a party secretly records a public speech, he would be penalized under Section 1? Because the speech is public, but the recording is done secretly. Senator Taada: Well, that particular aspect is not contemplated by the bill. It is the communication between one person and another person not between a speaker and a public. xxx xxx xxx (Congressional Record, Vol. III, No. 33, p. 626, March 12, 1964) xxx xxx xxx The unambiguity of the express words of the provision, taken together with the above-quoted deliberations from the Congressional Record, therefore plainly supports the view held by the respondent court that the provision seeks to penalize even those privy to the private communications. Where the law makes no distinctions, one does not distinguish. Second, the nature of the conversations is immaterial to a violation of the statute. The substance of the same need not be specifically alleged in the information. What R.A. 4200 penalizes are the acts of secretly overhearing, intercepting or recording private communications by means of the devices enumerated therein. The mere allegation that an individual made a secret recording of a private communication by means of a tape recorder would suffice to constitute an offense under Section 1 of R.A. 4200. As the Solicitor General pointed out in his COMMENT before the respondent court: "Nowhere (in the said law) is it required that before one can be regarded as a violator, the nature of the conversation, as well as its communication to a third person should be professed." 14

Finally, petitioner's contention that the phrase "private communication" in Section 1 of R.A. 4200 does not include "private conversations" narrows the ordinary meaning of the word "communication" to a point of absurdity. The word communicate comes from the latin word communicare, meaning "to share or to impart." In its ordinary signification, communication connotes the act of sharing or imparting signification, communication connotes the act of sharing or imparting, as in a conversation, 15 or signifies the "process by which meanings or thoughts are shared between individuals through a common system of symbols (as language signs or gestures)" 16 These definitions are broad enough to include verbal or non-verbal, written or expressive communications of "meanings or thoughts" which are likely to include the emotionally-charged exchange, on February 22, 1988, between petitioner and private respondent, in the privacy of the latter's office. Any doubts about the legislative body's meaning of the phrase "private communication" are, furthermore, put to rest by the fact that the terms "conversation" and "communication" were interchangeably used by Senator Taada in his Explanatory Note to the bill quoted below: It has been said that innocent people have nothing to fear from their conversations being overheard. But this statement ignores the usual nature of conversations as well the undeniable fact that most, if not all, civilized people have some aspects of their lives they do not wish to expose. Free conversations are often characterized by exaggerations, obscenity, agreeable falsehoods, and the expression of anti-social desires of views not intended to be taken seriously. The right to the privacy of communication, among others, has expressly been assured by our Constitution. Needless to state here, the framers of our Constitution must have recognized the nature of conversations between individuals and the significance of man's spiritual nature, of his feelings and of his intellect. They must have known that part of the pleasures and satisfactions of life are to be found in the unaudited, and free exchange of communication between individuals free from every unjustifiable intrusion by whatever means. 17 In Gaanan vs. Intermediate Appellate Court, 18 a case which dealt with the issue of telephone wiretapping, we held that the use of a telephone extension for the purpose of overhearing a private conversation without authorization did not violate R.A. 4200 because a telephone extension devise was neither among those "device(s) or arrangement(s)" enumerated therein, 19 following the principle that "penal statutes must be construed strictly in favor of the accused." 20 The instant case turns on a different note, because the applicable facts and circumstances pointing to a violation of R.A. 4200 suffer from no ambiguity, and the statute itself explicitly mentions the unauthorized "recording" of private communications with the use of tape-recorders as among the acts punishable.

WHEREFORE, because the law, as applied to the case at bench is clear and unambiguous and leaves us with no discretion, the instant petition is hereby DENIED. The decision appealed from is AFFIRMED. Costs against petitioner. SO ORDERED.

[G.R.

Nos.

146184-85,

January

31,

2008]

MANILA INTERNATIONAL AIRPORT AUTHORITY and ANTONIO P. GANA, Petitioners, vs. OLONGAPO MAINTENANCE SERVICES, INC. and TRIPLE CROWN SERVICES, INC., Respondents. ANTONIO P. GANA (in his capacity as Gen. Manager of the Manila International Airport Authority) and MANILA INTERNATIONAL AIRPORT AUTHORITY, Petitioners, vs. TRIPLE CROWN SERVICES, INC., Respondent. TRIPLE CROWN SERVICES, INC., Petitioner, vs. MANILA INTERNATIONAL AIRPORT AUTHORITY and THE COURT OF APPEALS, Respondents. DECISION VELASCO JR., J.: The rationale behind the requirement of a public bidding, as a mode of awarding government contracts, is to ensure that the people get maximum benefits and quality services from the contracts. More significantly, the strict compliance with th requirements of a public bidding echoes the call for transparency in government transactions and accountability of public officers. Public biddings are intended t minimize occasions for corruption and temptations to abuse of discretion on the part of government authorities in awarding contracts. Before us are three separate petitions from service contractors that question the legality of awarding government contracts without public bidding. The first petition, docketed as G.R. Nos. 146184-85, assails the November 24, 2000 Decision[1] of the Court of Appeals (CA) in consolidated cases CA-G.R. SP Nos. 50087 and 50131. The CA affirmed the November 18, 1998 Order [2] of the Regional Trial Court (RTC), Branch 119, Pasay City in Civil Case No. 98-1875 entitled Olongapo Maintenance Services, Inc. v. Manila International Airport Authority and Antonio P. Gana, granting an injunctive writ to respondent Olongapo Maintenance Services, Inc. (OMSI). The same CA Decision likewise upheld the November 19, 1998 Order[3] of the RTC, Branch 113, Pasay City, granting an injunctive writ to respondent Triple Crown Services, Inc. (TCSI) in Civil Case No. 98-1885 entitled Triple Crown Services, Inc. v. Antonio P. Gana (In his capacity as General Manager of the Manila International Airport Authority) and Goodline Staffers & Allied Services, Inc. The second, docketed as G.R. No. 161117,[4] assails the November 28, 2003 CA Decision[5] in CA-G.R. SP No. 67092, which affirmed the Decision[6] dated February 1, 2001 of the RTC, Branch 113, Pasay City and its April 16, 2001 Order[7] in Civil Case No. 98-1885, extending the November 19, 1998 injunctive writ adverted to earlier, ordering petitioners to conduct a public bidding for the areas serviced by respondent TCSI, and denying petitioners motion for reconsideration, respectively.

In the third, docketed as G.R. No. 167827,[8] TCSI assails the September 9, 2004 CA Decision[9] in CA-G.R. SP No. 76138, as veritably reiterated in the CAs April 13, 2005 Resolution,[10] which granted Manila International Airport Authoritys (MIAAs) petition for certiorari charging TCSI with forum shopping. The CA lifted the March 19, 2003 Writ of Mandamus[11] issued by the RTC, Branch 115 in Civil Case No. 03-0025 entitled Triple Crown Services, Inc. v. Manila International Airport Authority for Mandamus with Damages. We consolidated G.R. Nos. 146184-85 with G.R. No. 161117 and G.R. No. 167827as they all arose from the cancellation of the service contracts of OMSI and TCSI with MIAA. [12] The antecedent facts are as follows:

OMSI and TCSI were among the five contractors of MIAA which had janitorial and maintenance service contracts covering various areas in the Ninoy Aquino International Airport. Before their service contracts expired on October 31, 1998, the MIAA Board of Directors, through Antonio P. Gana, then General Manager (GM) of MIAA, wrote OMSI and TCSI informing them that their contracts would no longer be renewed after October 31, 1998.[13] On September 28, 1998, TCSI, in a letter to Gana, expressed its concern over the award of its concession area to a new service contractor through a negotiated contract. It said that to award TCSIs contract by mere negotiation would violate its right to equal protection of the law. TCSI thus suggested that a public bidding be conducted and that the effectivity of its service contract be meanwhile extended until a winning bid is declared. A similar letter from OMSI to MIAA followed.[14] In reply, MIAA wrote TCSI and OMSI reiterating its disinclination to renew the latters contracts, adding that it was to the governments advantage to instead just negotiate with other contractors. The MIAA said that awarding a contract through negotiation was in accordance with Section 9 of Executive Order No. (EO) 903; Sec. 82 of Republic Act No. (RA) 8522, otherwise known as the General Appropriations Act for 1998; and Sec. 417 of the Government Accounting and Auditing Manual (GAAM).
[23]

Following the denial of Ganas motion for reconsideration, MIAA and Gana appealed before the CA, their recourse docketed as CA-G.R. SP No. 67092. Civil Case Nos. 02-0517 and 03-0025 During the pendency of the appeal of the first TCSI case before the CA in CA-G.R. SP No. 67092, MIAA and TCSI engaged in several exchanges regarding payment of TCSI employees salaries. It appears that MIAA promised to pay TCSIs employees who were allegedly not paid their salaries on time. According to MIAA, it had not paid TCSI the monthly billings per contract owing to the non-submission by

TCSI, as required in the contract, of the proper billing requirements and proof of actual payment of TCSIs employees for the payroll period. On September 9, 2002, TCSI sent a demand letter [24] to MIAA for contract billings since late June 2002. In the letter, TCSI also protested MIAAs unilateral precondition that the former submit proof of actual wage payment to its employees. TCSI claimed MIAAs delay in payment resulted in financial losses for TCSI. TCSI reiterated its demand on October 4, 2002 for the periods covering July to September 2002, TCSI this time accusing MIAA of deliberately delaying payment which had adversely affected TCSIs business since it could not increase its manpower nor buy enough janitorial supplies and materials, making it liable to MIAA for liquidated damages. TCSI appealed to MIAA to waive the liquidated damages it was charging TCSI for the period July to September 2002. On October 30, 2002, MIAA informed TCSI that it was terminating the latters contract effective 10 days from receipt of the notice or on November 14, 2002. [25] As reason therefor, MIAA alleged that TCSIs manpower was insufficient and, thus, was delinquent in the delivery of suppliesboth in violation of paragraph 9.02 [26] of the service contract. TCSI protested the termination which it viewed as violative of the injunctive writ issued by Branch 113. It blamed MIAA for deliberately refusing and delaying to pay TCSI, which forced TCSI into a situation where it could not comply with its contract. TCSI accused MIAA of arbitrarily terminating its contract to replace TCSI with another outfit and for ignoring Article VIII of the contract, the arbitration clause. It also posited that par. 9.02 was a clause of adhesion and could not be enforced. On November 11, 2002, TCSI sent a demand letter [27] for PhP 18,091,957.94 to MIAA, the amount representing, among others, claims for janitorial services, illegal deductions made from billing for janitorial services, and arbitrary deductions made for alleged undelivered supplies. In its letter-reply[28] of November 13, 2002, MIAA asserted that the termination of TCSIs service contract did not violate the injunctive writ as the writ covered only the extension of the contract period until such time that a new awardee was chosen through public bidding. To MIAA, the writ did not enjoin contract termination for cause, such as for violation of par. 9.02 of the contract. Moreover, MIAA asserted that TCSI did not comply with Art. 1, par. 1.03 of the status quo contract which stipulates that TCSI shall strictly and fully comply with the procedures/instructions issued by MIAA, as part of the invitation to bid, and instructions that may be issued by MIAA from time to timeall integral parts of the contract. According to MIAA, it was TCSI that chose to ignore these instructions and did not present proof of actual payment to TCSI employees. On the eve of November 18, 2002, MIAA refused entry to TCSI employees and took over the janitorial services in the area serviced by TCSI.

Subsequently, on November 25, 2002, TCSI filed a Petition for Contempt with Motion to Consolidate,[29] impleading Edgardo Manda who took over as GM of MIAA. The petition, entitled Triple Crown Services, Inc. v. Edgardo Manda, in his capacity as General Manager of the Manila International Airport Authority and docketed as Civil Case No. 02-0517 (second TCSI case for contempt), was raffled to the RTC, Branch 108, Pasay City. In it, TCSI mainly alleged that the unilateral termination by MIAA of their service contract on alleged contract violation brought about by MIAAs refusal to pay TCSI was a blatant and contumacious violation of the injunctive writ issued by Branch 113. TCSI also prayed that the petition for contempt be consolidated with the first TCSI case. On the same day that the petition for contempt was filed, MIAA sent a reply [30] to TCSIs demand letter asserting that MIAA could not pay the items TCSI demanded because TCSI had not presented any billings for the period it wanted to be paid, among other reasons. Meanwhile, pending resolution of the second TCSI case for contempt, TCSI filed on January 24, 2003 a Petition for Mandamus with Damages[31] against MIAA entitled Triple Crown Services, Inc. v. Manila International Airport Authority, docketed as Civil Case No. 03-0025 (third TCSI case for mandamus) and again raffled to Branch 115, wherein TCSI sought to maintain the status quo order issued by Branch 113 in the first TCSI case and to compel MIAA to pay PhP 18 million to TCSI. In its Comment, MIAA denied all of TCSIs allegations and accused TCSI of forum shopping. On March 4, 2003, in the third TCSI case for mandamus, Branch 115 granted[32] the Writ of Mandamus to TCSI and ordered MIAA to comply with the Writ of Preliminary Injunction issued by Branch 113 in the first TCSI case. A week after and because MIAA refused to allow TCSI to peacefully continue its contract services, TCSI filed an Urgent Manifestation With Prayer for the Court to Cite Respondent Motu Proprio in Contempt.[33] After the trial court denied MIAAs Motion for Reconsideration,[34] Manda, in compliance with the trial courts show cause order, explained that the writ of mandamus had not yet become final and executory and a writ of execution was still needed before mandamus could be enforced. On March 24, 2003, MIAA assailed the March 4, 2003 and March 19, 2003 Orders of the trial court before the CA through a petition for certiorari under Rule 65 in CA-G.R. SP No. 76138, praying for a TRO and/or writ of preliminary injunction for the trial court to desist from further proceedings with the third TCSI case for mandamus. A day after, in the second TCSI case for contempt, the RTC directed the arrest of Manda for his failure to comply with the orders of the court. This did not materialize because two days after, the CA granted a TRO enjoining the enforcement of the

assailed orders and the writ of mandamus and, consequently, lifted the warrant of arrest for Manda. Thereafter, Manda filed a Manifestation and Motion to Dismiss the second TCSI case for contempt on the ground of forum shopping. The trial court denied the motion on the ground that the contempt case was an entirely distinct and separate cause of action from the mandamus case pending in another RTC branch. It said the contempt case was grounded on the alleged disobedience of Manda of the RTC, Branch 113 Order and injunctive writ in the first TCSI case appealed before the CA which could not be considered final and executory. Hence, the trial court ruled that the contempt case was prematurely filed and it thus had not acquired jurisdiction over it.

contracted services. The rationale for public bidding, the CA said, is to give the public the best possible advantages through open competition. Without filing a motion for reconsideration, Gana and MIAA now question the above Decision of the appellate court in CAG.R. SP No. 67092 through a Petition for Review on Certiorari docketed as G.R. No. 161117 before us. The Ruling of the Court of Appeals in CA-G.R. SP No. 76138 On September 9, 2004, the CA rendered the assailed Decision, granting MIAAs petition for certiorari. It annulled and set aside the March 4, 2003 Order and March 19, 2003 Writ of Mandamus and dismissed the third TCSI case for mandamus with prejudice. [41] The CA found TCSI guilty of forum shopping when it filed the third TCSI case for mandamus while the second TCSI case for contempt was pending. Further, the CA observed that the two cases have identical parties, prayed for the same reliefs, and were anchored on the same writ of preliminary injunction issued in the first TCSI case. Citing Philippine Commercial International Bank v. Court of Appeals,[42] the CA concluded that elements of litis pendentia were present and TCSI was guilty of forum shopping. TCSIs motion for reconsideration was likewise denied in the April 13, 2005 CA Resolution. TCSI now assails the above Decision and Resolution before us in a Petition for Review on Certiorari under Rule 45 docketed as G.R. No. 167827. The Issues In G.R. Nos. 146184-85, MIAA and Gana raise the following issues for our consideration: 1. Whether [or not] the Court of Appeals erred in declaring that respondents had extant interests in the awarding of the service contracts. Whether [or not] the Court of Appeals erred in holding that petitioners had no power to award the service contracts through negotiation.[43]

The Ruling of the Court of Appeals in the consolidated cases docketed CA-G.R. SP Nos. 50087 and 50131 involving the injunctive writs issued in the OMSI case and First TCSI case Recall that MIAA assailed the injunctive writs issued by the trial court thru petitions for certiorari under Rule 65 before the CA, docketed as CA-G.R. SP Nos. 50087 and 50131. On November 24, 2000, the CA rendered the assailed Decision, denying due course to and dismissing the petitions.[35] The CA stated that respondents-judges did not gravely abuse their discretion in issuing the injunctive writs enjoining MIAA from terminating the service contracts of OMSI and TCSI. Relying on Manila International Airport Authority v. Mabunay (Mabunay)[36] and National Food Authority,[37] the CA said that MIAA and Gana failed to satisfactorily show why the aforementioned cases should not apply. Moreover, the appellate court explained that notwithstanding the expiration of the service contracts of OMSI and TCSI, they both have extant interests as possible applicants. Aggrieved by the CA Decision, MIAA and Gana filed the instant petition docketed as G.R. Nos. 146184-85. The Ruling of the Court of Appeals in CA-G.R. SP No. 67092 Recall likewise that the RTC in the first TCSI case granted an injunctive writ in favor of TCSI. On appeal, on November 28, 2003, the CA in CA-G.R. SP No. 67092 rendered the assailed Decision, affirming that of the RTC [38] and reasoning that Sec. 1(e) of EO 301, series of 1987, entitled Decentralizing Actions on Government Negotiated Contracts, Lease Contracts and Records Disposal, relied upon by Gana and MIAA, does not apply to service contracts but only to requisitions of needed supplies. The CA applied our ruling in Kilosbayan, Incorporated v. Morato (Kilosbayan),[39]where we held that the supplies mentioned as exceptions in EO 301 refer only to contracts for the purchase of supplies, materials, and equipment, and do not refer to other contracts, such as lease of equipment, and that in the same vein, supplies in Sec. 1(e) of EO 301 only include materials and equipment and not service contracts, which are included in the general rule of Sec. 1. The CA, relying onMabunay[40] and National Food Authority, explained that Sec. 9 of EO 903, Sec. 82 of RA 8522, and Sec. 417 of the GAAM must be harmonized with the provisions of EO 301 on public biddings in all government

2.

In G.R. No. 161117, Gana and MIAA raise the following issues for our consideration: Whether [or not] the Court of Appeals erred in holding that the exception in Section 1 (e) of [EO] 301 applies only to requisition of needed supplies and not to the contracting of public services. Whether [or not] the Court of Appeals erred in holding that respondent is not estopped from questioning the negotiated contract between MIAA and [Goodline]. Whether there was a violation of respondents right to equal protection.[44] In G.R. No. 167827, TCSI raises the following issues for our consideration: I.

Whether or not the respondent can be compelled by Mandamus to maintain the status quo ante, as earlier ordered by this Honorable Court and be held liable for damages for unilaterally terminating the service contract of the petitioner in violation of said status quo order. II. Whether or not the herein petitioner is guilty of forum shopping. III. Whether or not the herein private respondent complied with the requisites for the institution of a petition for certiorari under Rule 65 with the Court of Appeals.[45] Propriety of the issuance of the injunctions We will jointly tackle G.R. Nos. 146184-85 and 161117 since the issues raised are closely interwoven. The incidents in the two assailed decisions not only arose from the first TCSI case, but also involved the same issue of the propriety of preliminary and permanent injunctions. MIAA and Gana strongly assert that OMSI and TCSI have no right to be protected by the injunctive writs as the term of their service contracts had already expired on October 31, 1998. Petitioners rely on National Food Authority, where we held that no court can compel a party to agree to a contract or its extension through an injunctive writ since an extension of a contract is only upon mutual consent of the parties. MIAA and Gana also argue that OMSI and TCSI are estopped from questioning the validity of a contract acquired through negotiations since the service contracts of OMSI and TCSI with MIAA were also negotiated contracts and did not undergo public bidding. These negotiated contracts are among the exceptions in Sec. 1 of EO 301. MIAA and Gana posit that the exceptions in Sec. 1 cover both contracts for public services and contracts for supplies, materials, and equipment. And, since TCSIs contract expired on October 31, 1998, and MIAA refused to extend the contracts, OMSI and TCSI have no right of renewal or extension of their service contract. We agree with MIAA and Gana.

writs of mandatory preliminary injunction. In Bautista v. Barcelona,[46] we made clear that a mandatory injunction is an extreme remedy and will be granted only on a showing that (a) the invasion of the right is material and substantial; (b) the right of the complainant is clear and unmistakable; and (c) there is an urgent and paramount necessity for the writ to prevent serious damage.[47] It is apparent that OMSI and TCSI have no more legal rights under the service contracts and, therefore, they have not met the vital procedural requirement that they must have material and substantial rights that have to be protected by courts. (2) The service contracts of OMSI and TCSI may not be extended through the instrumentality of an injunctive writ. It is a doctrine firmly settled in this jurisdiction that courts have no power to make a contract for the parties nor can they construe contracts in such a manner as to change the terms of the contracts not contemplated by the parties.[48] Verily, under Art. 1308 of the Civil Code, the contract between the parties is the law between them; mutuality being an essential characteristic of contracts giving rise to reciprocal obligations. [49] And under Art. 1306 of the Code, the parties may establish stipulations mutually acceptable to them for as long as such are not contrary to law, morals, good customs, public order, or public policy. And where a determinate period for a contracts effectivity and expiration has been mutually agreed upon and duly stipulated, the lapse of such period ends the contracts effectivity and the parties cease to be bound by the contract. It is undisputed that the service contracts were to terminate on October 31, 1998. Thus, by the lapse of such date, where no contract extension had been mutually agreed upon by the parties, the trial court cannot force the parties nor substitute their mutual consent to a contract extension through an injunction. Indeed, MIAAs decision not to extend the service contracts of OMSI and TCSI is a valid exercise of management prerogative. Certainly, there is no law that prohibits management discretion, even if it be a governmental agency or instrumentality or a government-owned or controlled corporation, from extending or not extending a service contract. Certainly, MIAAs management can determine, in the exercise of its sound discretion and the options available, given the factual and economic milieu prevailing, whether or not it is to its interest to extend a service contract for janitorial and maintenance services. From the foregoing premises, the RTCs in Civil Case Nos. 981875 and 98-1885 have erred in issuing the assailed writs of mandatory injunction. Hence, these writs must be nullified. The next issue to be resolved is whether MIAA, in the context of this case, can be barred from entering into negotiated contracts after the expiration of the service contracts of OMSI and TCSI on October 31, 1998. The answer is in the affirmative. Exceptions in EO 301 apply to purchase of supplies, materials and equipment not to contracts for public services

It is undisputed that the service contracts of OMSI and TCSI expired on October 31, 1998 and were not extended by MIAA. Hence, all the rights and obligations arising from said contracts were extinguished on the last day of the term. As a result, OMSI and TCSI had already lost their rights to render janitorial and maintenance services for MIAA starting November 1, 1998. Such being the case, the Court rules that the TROs and writs of preliminary injunction issued in favor of OMSI and TCSI are irregular and without legal basis for the following reasons, to wit: (1) The November 18, 1998 injunctive writ in favor of OMSI in the OMSI case and the November 19, 1998 injunctive writ in favor of TCSI in the first TCSI case were in the nature of

We cannot agree with the contention of MIAA and Gana that the exceptions to the public bidding rule in Sec. 1 of EO 301 cover both contracts for public services and for supplies, material, and equipment. Their reliance on Sec. 1(e) of EO 301 for the award of a service contract for janitorial and maintenance services without public bidding is misplaced. For clarity, we quote in full Sec. 1 of EO 301: Section 1. Guidelines for Negotiated Contracts. Any provision of the law, decree, executive order or other issuances to the contrary nothwithstanding, no contract for public services or for furnishing supplies, materials and equipment to the government or any of its branches, agencies or instrumentalities shall be renewed or entered into without public bidding, except under any of the following situations: a. Whenever the supplies are urgently needed to meet an emergency which may involve the loss of, or danger to, life and/or property; Whenever the supplies are to be used in connection with a project or activity which cannot be delayed without causing detriment to the public service; Whenever the materials are sold by an exclusive distributor or manufacturer who does not have sub-dealers selling at lower prices and for which no suitable substitute can be obtained elsewhere at more advantageous terms to the government; Whenever the supplies under procurement have been unsuccessfully placed on bid for at least two consecutive times, either due to lack of bidders or the offers received in each instance were exorbitant or non-conforming to specifications; In cases where it is apparent that the requisition of the needed supplies through negotiated purchase is most advantageous to the government to be determined by the Department Head concerned; and Whenever the purchase is made from an agency of the government. (Emphasis supplied.)

decentralize the processing and final approval of negotiated contracts . . . It then laid down, in its Section 1, guidelines for negotiated contracts thenceforth to be followed.While affirming the general policy that contracts shall not be entered into or renewed without public bidding, x x x. (Emphasis supplied.)[50] It is only in the instances enumerated above that public bidding may be dispensed with and a contract closed through negotiations. MIAA and Gana posit the view that Sec. 1(e) of EO 301 includes contracts for public services and is not limited to supplies, materials, or equipment, and applies to all forms of contracts. We are not convinced.

b.

c.

d.

In Kilosbayan,[51] we ruled that Sec. 1 of EO 301 applies only to the contracts for the purchase of supplies, materials, and equipment. It does not cover contracts of lease of equipment like the [Equipment Lease Agreement]. While the lease of equipment was the subject of Kilosbayan, the ruling therein can very well apply to the cases at bar. We agree with the apt observation of OMSI and TCSI that Sec. 1 of EO 301 and the exceptions to the bidding rule enumerated therein only pertain to contracts for the procurement of supplies, materials, and equipment. Thus, corollarily, this express enumeration excludes all others in accord with the elemental principle in legal hermeneutics, expressio unius est exclusio alterius or the express inclusion of one implies the exclusion of all others. A contract for janitorial and maintenance services, like a contract of lease of equipment, is not included in the exceptions, particularly Sec. 1(e) relied upon by MIAA and Gana. Moreover, in Kilosbayan, in denying Kilosbayan Incorporateds motion for reconsideration and debunking its contention that EO 301 covers all types of contracts for public services, this Court, in a Resolution, reiterated its original ruling and held that EO 301 was promulgated merely to decentralize the system of reviewing negotiated contracts of purchase for the furnishing of supplies, materials, and equipment as well as lease contracts of buildings. We concluded: In sum, E.O. No. 301 applies only to contracts for the purchase of supplies, materials and equipment, and it was merely to change the system of administrative review of emergency purchases, as theretofore prescribed by E.O. No. 298, that E.O. No. 301 was issued on July 26, 1987. Part B of this Executive Order applies to leases of buildings, not of equipment, and therefore does not govern the lease contract in this case. (Emphasis supplied.) [52] It is thus clear that the contention of MIAA and Gana that the exceptions in EO 301, particularly Sec. 1(e), include contracts for public services cannot be sustained. Further, suffice it to say that Sec. 9 of EO 903, [53] Sec. 82 of RA 8522 or the General Appropriations Act for 1998, and Sec. 417 of the GAAM, likewise relied upon by MIAA and Gana for grant of authority to negotiate service contract, do not do away with the general rule on public bidding. In Mabunay, we ruled that RA 7845 or the General

e.

f.

In Andres v. Commission on Audit, this Court explained the rationale behind EO 301, upholding the general rule that contracts shall not be entered into or renewed without public bidding, thus: Executive Order No. 301 explicitly permits negotiated contracts in particular identified instances. In its preamble, it adverted to the then existing set-up of a centralized administrative system . . . for reviewing and approving negotiated contracts . . ., and to the unsatisfactory character thereof in that such centralized administrative system is not at all facilitative particularly in emergency situations, characterized as it is by red tape and too much delay in the processing and final approval of the required transaction or activity; hence, the need to

Appropriations Act for 1995 cannot be construed to eliminate public bidding in the award of a contract for security services, as RA 7845 is not the governing law on the award of the service contracts by government agencies nor does it do away with the general requirement of public bidding [54] and that administrative discretion may not transcend the statutes [55] that require public bidding. Thus, RA 8522, particularly its Sec. 82, does not dispense with the requirement of public bidding to award a contract for janitorial and maintenance services. Furthermore, our ruling in National Food Authority, cited in Mabunay, is still valid. It directly applies to the legal issue in the instant consolidated cases that public bidding is required for the award of service contracts. RA 9184 provides for alternative procurement procedures In sum, we reiterate the legal requirement of competitive public bidding for all government public service contracts and procurement of materials, supplies, and equipment. Competitive public bidding may not be dispensed with nor circumvented, and alternative modes of procurement for public service contracts and for supplies, materials, and equipment may only be resorted to in the instances provided for by law. In the instant case, no express provision of law has granted MIAA the right to forego public bidding in negotiating the award of contracts for janitorial and maintenance services. In Abaya v. Ebdane,[56] this Court outlined the history of Philippine procurement laws from the introduction of American public bidding through Act No. 22, enacted on October 15, 1900, and the subsequent laws and issuances. On October 8, 2001, President Arroyo issued EO 40 which repealed, amended, or modified all executive issuances, orders, rules and regulations, or parts inconsistent with her EO.[57] On January 10, 2003, President Arroyo signed into law RA 9184,[58] which expressly repealed, among others, EO 40, EO 262, EO 301, EO 302, and Presidential Decree No. 1594, as amended, and is the current law on government procurement. This law still requires public bidding as a preferred mode of award. However, RA 9184 allows exceptions to public bidding rule in certain instances, conditions, or extraordinary circumstances. Sec. 53 [59] of RA 9184 in particular authorizes negotiated procurement, while other alternative methods of procurement are set forth under Art. XVI [60] of RA 9184. Thus, under the present law, MIAA can enter into negotiated contracts in the exceptional situations allowed by RA 9184. With regard to the prayer for a mandatory preliminary injunction, OMSI and TCSI have amply demonstrated their right to require the holding of a public bidding for the service contracts with MIAA. While we have previously explained that OMSI and TCSI have no right to a writ of mandatory injunction to have their service contracts extended by the courts beyond the fixed term, the situation is different with respect to their right to participate in the public bidding prescribed by law. Since they were the previous service

contractors of MIAA and have manifested their desire to participate in the public bidding for the new contracts, then they have satisfactorily shown that they have material and substantial rights to be protected and preserved by a mandatory injunctive writ against MIAA. Considering that the negotiated contract is contextually illegal under EO 301, EO 903, Sec. 82 of RA 8522, and Sec. 417 of the GAAM, then MIAA can be directed to conduct a public bidding instead of resorting to a negotiated contract. MIAA, however, eventually discarded the negotiation of new contracts with prospective service contractors and has decided to hire personnel to render janitorial and messengerial services starting July 31, 2005. Clearly, the employment of said personnel is within the realm of management prerogatives of MIAA allowed under its charter, EO 903, and other existing laws. Since the hiring of said employees dispensed with the need for getting service contractors, then the relief of requiring MIAA to conduct public bidding is already unavailing and has become moot and academic. On the claim of OMSI and TCSI that their rights to equal protection of laws were violated by the negotiation of the contracts by MIAA with other service contractors, the Court finds no law that is discriminatory against them in relation to their expired service contracts. EO 301, EO 903, RA 8522, and the GAAM are not discriminatory against them precisely because, as the Court ruled, there has to be public bidding where OMSI and TCSI are allowed to participate. At most, what can be discriminatory is the intended negotiation of the new service contracts by MIAA which prevents OMSI and TCSI from participating in the bidding. We find such act illegal and irregular because of the wrong application of the laws by MIAA and not because the pertinent laws are discriminatory against them. We stressed in Genaro R. Reyes Construction, Inc. v. CA: [A]lthough the law be fair on its face, and impartial in appearance, yet if applied and administered by the public authorities charged with their administration x x x with an evil eye and unequal hand so as to practically make unjust and illegal determination, the denial of equal justice is still within the prohibition of the Constitution. [61] Given the antecedent facts of these consolidated cases, we agree with the courts a quo that the constitutional right of OMSI and TCSI to equal protection is violated by MIAA and Gana when no public bidding was called precisely because the latter were going to award the subject service contracts through negotiation. Worse, the acts of MIAA and Gana smack of arbitrariness and discrimination as they not only did not call for the required public bidding but also did not even accord OMSI and TCSI the opportunity to submit their proposals in a public bidding. What OMSI and TCSI got was a terse reply that their contracts will not be renewed and that MIAA would negotiate contracts lower than those of OMSI and TCSI without granting them the opportunity to submit their own bids or proposals. On the ground of uneven protection of law, we could grant the prayer for an order directing a public bidding. Unfortunately, such action is already foreclosed by the decision of MIAA not to hire any service contractor.

The CA has discretion to give due course to the petition We now tackle the procedural issues raised in G.R. No. 167827 on whether MIAA complied with the requirements of Rule 65 before the CA and whether forum shopping is present. TCSI argues that MIAAs petition for certiorari under Rule 65 before the CA should have been outrightly dismissed for manifest violation of par. 2, Sec. 1 of Rule 65 in failing to attach the required certified true copies of the assailed RTC Orders. Moreover, TCSI contends that MIAA failed to raise any genuine jurisdictional issues correctable by certiorari, as the issues raised by MIAA were all factual matters which involved questions of error of judgment and not of jurisdiction. We are not persuaded.

Sec. 1 of Rule 65 pertinently provides: SECTION 1. Petition for certiorari.When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of Section 3, Rule 46. The above provision clearly vests the CA the authority and discretion to give due course to the petitions before it or to dismiss them when they are not sufficient in form and substance, the required pleadings and documents are not attached to them, and no sworn certificate on non-forum shopping is submitted. This discretion must be exercised, not arbitrarily or oppressively, but in a reasonable manner in consonance with the spirit of the law, always with the view in mind of seeing to it that justice is served. The CA has exercised its discretion in giving due course to MIAAs petition before it. We will not delve into this issue to bear on the instant petition. Certainly, TCSI has not shown that the CA has arbitrarily or oppressively exercised its sound discretion. Nor has it shown that the appellate court was not able to or could not go over the pertinent documents in resolving the instant case on review before it. Neither has TCSI shown any manifest bias, fraud, or illegal consideration on the part of the CA to merit reconsideration for the grant of due course. Certiorari is a proper remedy for an interlocutory order granting mandamus (Third TCSI case for Mandamus)

The March 4, 2003 and March 19, 2003 Orders granting mandamus and denying MIAAs motion for reconsideration, respectively, are clearly interlocutory orders. What we held in Metropolitan Bank & Trust Company v. Court of Appeals is instructive, thus: It has been held that [a]n interlocutory order does not terminate or finally dismiss or finally dispose of the case, but leaves something to be done by the court before the case is finally decided on the merits. It refers to something between the commencement and end of the suit which decides some point or matter but it is not the final decision on the whole controversy. Conversely, a final order is one which leaves to the court nothing more to do to resolve the case. The test to ascertain whether an order is interlocutory or final is: Does it leave something to be done in the trial court with respect to the merits of the case? If it does, it is interlocutory; if it does not, it is final.[62] TCSI argues that since the trial court still has to hear the issue on damages in Civil Case No. 03-0025 for mandamus and no final decision has yet been rendered, the mandamus writ is an interlocutory one, and cannot be subject of an appeal. However, Rule 41 clearly states that while an interlocutory order cannot be subject of an appeal and the aggrieved party has to await the decision of the court, still it allows the filing of a special civil action of certiorari under Rule 65 when there is grave abuse of discretion in the issuance of the order. Moreover, under the circumstances of the case, MIAA had no other plain, speedy, and adequate remedy other than a petition for certiorari under Rule 65. MIAA raised issues alleging grave abuse of discretion on the part of the RTC TCSI argues that MIAA only raised factual matters before the CA which the trial court has ruled upon in the exercise of its jurisdiction and thus are not reviewable by certiorari but only by appeal. Contrary to TCSIs contention, a close perusal of the issues raised by MIAA in CA-G.R. SP No. 76138 shows that not all the issues the latter raised were factual issues. MIAA assailed the lack or excess of jurisdiction of the RTC resulting from grave abuse of discretion when it issued the questioned orders. Abuse of discretion is precisely the thrust in a petition for certiorari under Rule 65. Forum shopping exists TCSI contends that the CA committed reversible error when it held TCSI resorted to forum shopping. TCSI argues it was not guilty of forum shopping when it filed the second TCSI case for contempt and the third TCSI case for mandamus. According to TSCI, as these are two distinct and separate cases, the elements of litis pendentiaamounting to res judicata do not exist. TCSIs contention is devoid of merit.

Forum shopping exists when the elements of litis pendentia are present, or when a final judgment in one case will amount to res judicata in another.[63] There is forum

shopping when the following elements concur: (1) identity of the parties or, at least, of the parties who represent the same interest in both actions; (2) identity of the rights asserted and relief prayed for, as the latter is founded on the same set of facts; and (3) identity of the two preceding particulars, such that any judgment rendered in the other action will amount to res judicata in the action under consideration or will constitute litis pendentia. An examination of the two petitions filed by [TCSI] reveals that the elements of litis pendentia are present. Both petitions are based on the alleged violation by petitioner of the writ of preliminary injunction dated November 19, 1998 issued in Civil Case No. 98-1885 [first TCSI case] enjoining the latter to maintain the status quo until after a qualified winning bidder is chosen by way of a public bidding. The reliefs prayed for in the two petitions are likewise founded on the same fact, i.e., the alleged disobedience or violation of the writ of preliminary injunction by petitioner. In the assailed Order dated March 4, 2003 granting the writ of mandamus, respondent Judge directed petitioner to immediately comply with the writ of preliminary injunction. In the Order dated March 12, 2003, respondent Judge directed petitioners General Manager, Edgardo Manda, to explain why he should not be cited for contempt for defying the Order dated March 4, 2003. Respondent Judge found the explanation of Manda devoid of merit and directed the latter to allow private respondent to reassume its post at the airport terminal immediately, otherwise, a warrant of arrest shall be issued against him, pursuant to Section 8, Rule 71 of the Rules of Court. In fact, a warrant of arrest was issued against Manda on March 25, 2003 for his failure to comply with the Orders dated March 4, 2003 and March 19, 2003. In other words, the same penalty could be imposed on Manda in the petition for contempt filed by private respondent with the RTC, Branch 108, Pasay City, should the Presiding Judge thereof find him guilty of violating the writ of preliminary injunction. Moreover, Section 7, Rule 71 of the Rules of Court provides that if the contempt consists in the violation of writ of injunction, temporary restraining order or status quo order, the person adjudged guilty of contempt may also be ordered to make complete restitution to the party injured by such violation of the property involved or such amount as may be alleged and proved. Thus, private respondent could likewise claim damages in the petition for contempt filed by it with Branch 108. That private respondent did not find the petition for contempt to be an adequate and speedy remedy as no action has been taken by Branch 108 as of the date of the filing of the petition for mandamus with damages only shows that private respondent indulged in forum shopping. If the first TCSI case for Prohibition, Mandamus, and Damages with Prayer for TRO and Injunction would not be considered in determining whether forum shopping was resorted to by TCSI when it subsequently filed the second TCSI case for contempt and the third TCSI case for mandamus, then there could have been merit in TCSIs claim of non-forum shopping. The fact, however, is the second and third TCSI cases stemmed from the first TCSI case, anchored as they were on the alleged breach by MIAA of the November 19, 1998 writ of preliminary injunction. Such being the case, the court a quo did not err when it ruled that the

reliefs in the second and third TCSI cases in effect prayed for the enforcement of the November 19, 1998 injunctive writ. Moreover, the causes of action in the second and third cases are substantially identical because the basis is the disobedience or breach of the writ of injunction. [66] Hence, forum shopping is present. The Courts Dispositions I. G.R. No. 146184 (CA-G.R. SP No. 50087) Civil Case No. 98-1875 entitledOMSI v. MIAA before the Pasay City RTC, Branch 119 Re: November 18, 1998 Order granting writ of preliminary injunction in Civil Case No. 98187 1. We rule to nullify the November 18, 1998 Order granting the injunctive writ for want of any legal right on the part of OMSI to be entitled to a writ of mandatory injunction. The November 24, 2000 CA Decision in CA-G.R. SP Nos. 50087 and 50131, affirming the aforementioned November 18, 1998 Order in Civil Case No. 98-1875, is accordingly reversed and set aside.

2.

II.

G.R. No. 146185 (CA-G.R. SP No. 50131) Civil Case No. 98-1885 entitledTCSI v. Antonio P. Gana, MIAA and Goodline (first TCSI case) before the Pasay City RTC, Branch 113 Re: November 19, 1998 Order granting the injunctive writ 1. We rule to nullify the November 19, 1998 Order granting the writ of mandatory injunction in the absence of any real and substantial right on the part of TCSI entitling it to such writ under the rules and applicable jurisprudence. The November 24, 2000 CA Decision in CA-G.R. SP. Nos. 50087 and 50131, affirming the November 18, 1998 Order in Civil Case No. 98-1875, is also accordingly reversed and set aside.

2.

III.

G.R. No. 161117 (CA-G.R. SP No. 67092) Civil Case No. 98-1885 entitledTSCI v. Antonio P. Gana, MIAA and Goodline (first TCSI case) Re: February 1, Civil Case No. 98-1885 2001 Decision in

(1) We rule that the negotiated contract between MIAA and Goodline and the resolution of the MIAA Board dated October 2, 1998, authorizing MIAAs management and/or GM Gana to negotiate and award service contracts upon the expiration of the present service contract on October 31, 1998, are null and void. We, therefore, affirm par. 1 of the February 1, 2001 Decision of the Pasay City RTC, Branch 113. (2) We rule that, in 1998, MIAA was required by EO 301 to conduct public bidding, and the negotiated contract for services with Goodline is prohibited and null and void. However, since MIAA decided against hiring contractors for janitorial and maintenance services and instead directly hired employees for the purpose, it would be legally improper to require MIAA to contract out such services by public bidding since this involves management decisions and prerogative. We, therefore, set aside par. 2 of the February 1, 2001 Pasay City RTC, Branch 113 Decision in Civil Case No. 981885, requiring MIAA and Gana to hold a public bidding, for being moot and academic. (3) The writ of preliminary injunction is nullified, as TCSI has not shown any legal basis for the grant thereof. We, therefore, set aside par. 3 of the February 1, 2001 RTC Decision in Civil Case No. 98-1885. The November 28, 2003 CA Decision in CAG.R. SP No. 67092, affirming the aforementioned pars. 2 and 3 of said RTC Decision, is likewise reversed and set aside. IV. G.R. No. 167827 (CA-G.R. SP No. 76138) Civil Case No. 03-0025 entitledTCSI v. MIAA (third TCSI case for mandamus) before the Pasay City RTC, Branch 115

TCSI to have been legally and validly terminated on October 31, 1998 by virtue of the expiration of the contracts term and their non-renewal. The Pasay City RTC, Branch 119 is ordered to continue with the proceedings in Civil Case No. 981875. The petition in G.R. No. 161117 is PARTLY GRANTED. The November 28, 2003 CA Decision in CA-G.R. SP No. 67092 and the February 1, 2001 Decision of the Pasay City RTC, Branch 113 in Civil Case No. 98-1885, which was affirmed by the CA, areAFFIRMED with MODIFICATIONS, as follows: WHEREFORE, a decision is hereby rendered, ordering as follows: 1. The negotiated contract by and between the respondents and the resolution of the MIAA Board, dated October 2, 1998, authorizing MIAA management and/or respondent GM Gana to negotiate and award service contracts upon the expiration of the present service contract, on October 31, 1998 are hereby declared NULL and VOID; The hiring of employees to render janitorial and maintenance services by GM Gana and/or the MIAA management is declared VALID and LEGAL. However, should saidpetitioners decide to procure the services of a contractor for janitorial and maintenance services, then they are ordered to hold a public bidding for said services, subject to certain exceptions, set forth in RA 9184 or the Government Procurement Act, if applicable; The writ of preliminary injunction is RECALLED and NULLIFIED; and No pronouncement as to costs and attorneys fees.mark

2.

3.

4.

The petition in G.R. No. 167827 is DENIED for lack of merit and the September 9, 2004 Decision in CA-G.R. SP No. 76138 is AFFIRMED. No SO ORDERED. costs.

Re: March 19, 2003 Writ of Mandamus in Civil Case No. 030025 Since the November 19, 1998 Order of the Pasay City RTC, Branch 115 in Civil Case No. 98-1885 (first TCSI case) granting the injunctive writ is, for want of legal basis, null and void, it follows that the March 19, 2003 Writ of Mandamus issued in Civil Case No. 03-0025 is likewise null and void. WHEREFORE, the petition in G.R. Nos. 14618485 is GRANTED. The November 24, 2000 CA Decision in CA-G.R. SP Nos. 50087 and 50131 is REVERSED and SET ASIDE. Likewise, both the November 18, 1998 Order of the Pasay City RTC, Branch 119 in Civil Case No. 98-1875 and the November 19, 1998 Order of the Pasay City RTC, Branch 113 in Civil Case No. 98-1885 are REVERSED and SET ASIDE. The Court declares the service contracts of OMSI and