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THIRD DIVISION

[G.R. No. 172602. April 13, 2007.]

HENRY T. GO , petitioner, vs . THE FIFTH DIVISION, SANDIGANBAYAN


and THE OFFICE OF THE SPECIAL PROSECUTOR, OFFICE OF THE
OMBUDSMAN , respondents.

DECISION

CALLEJO, SR ., J : p

Before the Court is the petition for certiorari under Rules 65 of the Rules of Court filed by
Henry T. Go seeking to nullify the Resolution dated December 6, 2005 of the
Sandiganbayan in Criminal Case No. 28092, entitled People of the Philippines vs. Vicente
C. Rivera, Jr. and Henry T. Go, which denied his motion to quash. Likewise sought to be
nullified is the Sandiganbayan Resolution of March 24, 2006 denying petitioner Go's
motion for reconsideration.
The factual and procedural antecedents of the case are as follows:
On May 5, 2003, this Court rendered the Decision in Agan, Jr. v. Philippine International Air
Terminals Co., Inc. (PIATCO), 1 declaring as null and void the 1997 Concession Agreement,
the Amended and Restated Concession Agreement (ARCA), and the Supplemental
Contracts entered into between the Government, through the Department of
Transportation and Communications (DOTC) and the Manila International Airport Authority
(MIAA), and PIATCO.
By the aforementioned contracts (collectively known as the PIATCO contracts), the
Government awarded in favor of PIATCO the project for the development of the Ninoy
Aquino International Airport Passenger Terminal III (NAIA IPT III) under a build-operate-
and-transfer (BOT) scheme pursuant to Republic Act (RA) No. 6957 as amended by RA
7718 (BOT Law). 2 CIScaA

The Court ruled that Paircargo Consortium, PIATCO's predecessor-in-interest, was not a
qualified bidder as it failed to meet the financial capability requirement under the BOT Law.
Moreover, the PIATCO contracts were declared null and void for being contrary to public
policy. The penultimate paragraph of the Court's Decision states thus:
CONCLUSION
In sum, this Court rules that in view of the absence of the requisite financial
capacity of the Paircargo Consortium, predecessor of respondent PIATCO, the
award by the PBAC of the contract for the construction, operation and
maintenance of the NAIA IPT III is null and void. Further, considering that the 1997
Concession Agreement contains material and substantial amendments, which
amendments had the effect of converting the 1997 Concession Agreement into
an entirely different agreement from the contract bidded upon, the 1997
Concession Agreement is similarly null and void for being contrary to public
policy. The provisions under Section 4.04(b) and (c) in relation to Section 1.06 of
the 1997 Concession Agreement and Section 4.04(c) in relation to Section 1.06 of
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the ARCA, which constitute a direct government guarantee expressly prohibited
by, among others, the BOT Law and its Implementing Rules and Regulations are
also null and void. The Supplements, being accessory contracts to the ARCA, are
likewise null and void. 3

Subsequently, an affidavit-complaint, later amended, was filed with the Office of the
Ombudsman by Ma. Cecilia L. Pesayco, Corporate Secretary of Asia's Emerging Dragon
Corporation (AEDC), charging several persons in connection with the NAIA IPT III project.
The AEDC was the original proponent thereof which, however, lost to PIATCO when it failed
to match the latter's bid price.
After conducting a preliminary investigation thereon, the Office of the Ombudsman filed
with the Sandiganbayan the Information dated January 13, 2005 charging Vicente C.
Rivera, as then DOTC Secretary, and petitioner Go, as Chairman and President of PIATCO,
with violation of Section 3 (g) 4 of RA 3019, also known as the Anti-Graft and Corrupt
Practices Act. The case was docketed as Criminal Case No. 28092, entitled People of the
Philippines vs. Vicente C. Rivera, Jr. and Henry T. Go. The Information reads: DSHTaC

INFORMATION

The undersigned Graft Investigation and Prosecution Officer II, Office of the
Deputy Ombudsman for Luzon, accuses VICENTE C. RIVERA, JR. and HENRY T.
GO with Violation of Sec. 3 (g), R.A. No. 3019 committed as follows:

On or about November 26, 1998, or sometime prior or subsequent thereto,


in Quezon City, Philippines and within the jurisdiction of this Honorable
Court, the accused VICENTE C. RIVERA, JR., Secretary of the Department of
Transportation and Communications (DOTC), committing the offense in
relation to his office and taking advantage of the same, in conspiracy with
accused HENRY T. GO, Chairman and President of the Philippine
International Air Terminals, Co., Inc. (PIATCO), did then and there, willfully,
unlawfully and feloniously enter into an Amended and Restated
Concession Agreement (ARCA), after the project for the construction of the
Ninoy Aquino International Passenger Terminal III (NAIA IPT III) was
awarded to Paircargo Consortium/PIATCO, which ARCA substantially
amended the draft Concession Agreement covering the construction of the
NAIA IPT III under Republic Act 6957 as amended by Republic Act 7718
(BOT Law) providing that the government shall assume the liabilities of
PIATCO in the event of the latter's default specifically Article IV, Section
4.04 (c) in relation to Article I, Section 1.06 of the ARCA which term is more
beneficial to PIATCO and in violation of the BOT law, and manifestly and
grossly disadvantageous to the government of the Republic of the
Philippines.ISHaTA

CONTRARY TO LAW. 5

On February 11, 2005, petitioner Go posted a cash bond for his provisional liberty.
On February 15, 2005, the Sandiganbayan issued a Hold Departure Order against Rivera
and petitioner Go.
On March 28, 2005, petitioner Go was arraigned and entered a plea of "not guilty."
On May 26, 2005, Rivera filed a Motion for Judicial Determination (or Re-Determination) of
Probable Cause and Motion to Dismiss. The Sandiganbayan gave petitioner Go a period of
ten (10) days within which to file a comment thereon. THaCAI

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On June 20, 2005, petitioner Go filed his Comment with Motion to Quash. Adopting the
view advanced by Rivera, petitioner Go harped on the alleged "missing documents,"
including Pesayco's amended affidavit-complaint and those others that were mentioned in
the resolution of the Office of the Deputy Ombudsman finding probable cause against
Rivera and petitioner Go, but which were not allegedly in the records. Petitioner Go
maintained that apart from the bare allegations contained in Pesayco's affidavit-complaint,
there was no supporting evidence for the finding of the existence of probable cause
against him and Rivera. Petitioner Go further alleged that he could not be charged under
Section 3 (g) of RA 3019 because he is not a public officer and neither is he capacitated to
enter into a contract or transaction on behalf of the government. At least one of the
important elements of the crime under Section 3 (g) of RA 3019 is not allegedly present in
his case.
On June 21, 2005, petitioner Go filed a Manifestation with Motion to Substitute the
Comment with Motion to Quash, which the prosecution, through the Office of the
Ombudsman, opposed.
On December 6, 2005, the Sandiganbayan issued the assailed Resolution denying Rivera's
Motion for Judicial Determination (Re-Determination) of Probable Cause and Motion to
Dismiss and petitioner Go's Motion to Quash. ACEIac

The Sandiganbayan ruled that, contrary to the prosecution's submission, it could still
entertain petitioner Go's Motion to Quash even after his arraignment considering that it
was based on the ground that the facts charged do not constitute an offense.
Nonetheless, the Sandiganbayan denied petitioner Go's Motion to Quash holding that,
contrary to his claim, the allegations in the Information actually make out the offense
charged. More particularly, the allegations that accused Rivera, as DOTC Secretary, in
conspiracy with petitioner Go, entered into the ARCA with petitioner Go/PIATCO, which
agreement was manifestly and grossly disadvantageous to the government, are
constitutive of the elements of the offense charged as defined under Section 3 (g) of RA
3019.
The Sandiganbayan explained that petitioner Go's contentions that he is not a public
officer, he did not conspire with Rivera in the execution of the ARCA and, in any case, the
said agreement cannot be said to be manifestly and grossly disadvantageous to the
government, could not be properly considered for the purpose of quashing the Information
on the ground relied upon by him. According to the Sandiganbayan, these matters raised
by petitioner Go have to be proved during trial.
The decretal portion of the assailed Sandiganbayan Resolution reads:
WHEREFORE, in light of the foregoing, the "Motion for Determination (Re-
Determination) of Probable Cause and Motion to Dismiss" and the "Motion to
Quash," filed by accused Vicente C. Rivera, Jr. and Henry T. Go, respectively, are
hereby DENIED. IDSaTE

SO ORDERED. 6

Petitioner Go filed a motion for reconsideration thereof but it was denied by the
Sandiganbayan in the Resolution dated March 24, 2006.
Petitioner Go now seeks recourse to the Court and, in support of his petitioner, alleges
that:

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A.
The Honorable Sandiganbayan committed grave abuse of discretion amounting
to lack or excess of jurisdiction in not ruling that Section 3(g) does not embrace a
private person within its proviso. cTSDAH

B.
The Honorable Sandiganbayan committed grave abuse of discretion amounting
to lack or excess of jurisdiction in not ruling that there is no probable cause to
hold petitioner for trial. 7

Petitioner Go contends that Section 3 (g) of RA 3019, by its text, cannot be extended or
even enlarged by implication or intendment to bring within its limited scope private
persons. The said provision of law allegedly punishes only public officers as it penalizes
the act of "entering, on behalf of the government, into any contract or transaction
manifestly and grossly disadvantageous to the same, whether or not the public officer
profited or will profit thereby." As a private person, he could not allegedly enter into a
contract "on behalf of the government," there being no showing of any agency relations or
special authority for him to act for and on behalf of the government.

Citing several cases, 8 petitioner Go enumerates the following elements of Section 3 (g) of
RA 3019:
(1) that the accused is a public officer;
(2) that he entered into a contract or transaction on behalf of the government;
and
(3) that such contract or transaction is grossly and manifestly
disadvantageous to the government.

He also cites Marcos v. Sandiganbayan 9 where the Court acquitted then First Lady Imelda
R. Marcos of the charge of violation of Section 3 (g) of RA 3019 as it found that she did not
sign the subject Lease Agreement, entered into between the Light Railway Transit
Authority (LRTA) and Philippine General Hospital Foundation, Inc. (PGHFI), as a public
officer, but in her capacity as Chairman of the PGHFI, a private entity. As such, the Court
held that the first element of the offense charged, i.e., that the accused is a public officer,
was wanting.
Petitioner Go claims that, in the same manner, the first element of the offense charged
against him is absent because he is not a public officer who is authorized by law to bind
the government through the act of "entering into a contract." He also points out that,
similar to his case, in Marcos, the Information also alleged that the former First Lady
conspired with a public officer, then Minister Jose P. Dans of the Ministry of
Transportation and Communications, in entering into a contract. Nonetheless, the Court
therein dismissed the allegation of conspiracy.
Petitioner Go maintains that by any of its definition, 1 0 he cannot be considered a "public
officer." Further, only a public officer can enter into a contract in representation of the
government. He stresses that the first element of the offense, i.e., that the accused is a
public officer, is an essential ingredient of the crime under Section 3 (g) of RA 3019. He
likens it to the crime of parricide where the essential element is the relationship of the
offender to the victim and, citing a criminal law book author, a stranger who cooperates in
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the execution of the offense is not allegedly guilty of this crime. The stranger is allegedly
either liable for homicide or murder but never by "conspiracy to commit parricide." 1 1 aEIcHA

By parity of reasoning, according to petitioner Go, the first essential element of the crime
penalized under Section 3 (g) of RA 3019 is that the offender must be a public officer.
Since he is not a public officer, one of the essential elements of the offense is lacking;
hence, there is no other recourse but to quash the Information.
Section 9 of RA 3019 was also cited which reads:
SEC. 9. Penalties for violation. —
(a) Any public officer or private person committing any of the unlawful acts
or omissions enumerated in Sections 3, 4, 5, and 6 of this Act shall be punished
with imprisonment for not less than six years and one month or fifteen years,
perpetual disqualification from public office, and confiscation or forfeiture in
favor of the Government of any prohibited interest and unexplained wealth
manifestly out of proportion to his salary and other lawful income.
xxx xxx xxx

Petitioner Go posits that had it been the intention of the lawmakers to penalize private
persons who supposedly "conspired" with public officers in violation of Sections 3, 4, 5 and
6 of RA 3019, it could have easily used the conjunctive "and," not "or," between the terms
"public officer" and "private person" in Section 9 thereof.
Petitioner Go takes exception to the Sandiganbayan's pronouncement that even as a
private individual he is not excluded from the coverage of Section 3 (g) of RA 3019
because he is not being accused singly but as someone who conspired with a public
officer in violating the said law. According to petitioner Go, this proposition applies only to
Section 3 (e) 1 2 of RA 3019, the elements of which include that "the accused are public
officers or private persons charged in conspiracy with them." 1 3 He stresses that, unlike
Section 3 (e) of RA 3019, Section 3 (g) thereof penalizes only public officers as the
operative phrase in the latter provision is "on behalf of the government."
Petitioner Go vigorously asserts that there is no basis for the finding of probable cause
against him for violation of Section 3 (g) of RA 3019. In particular, he insists that the
allegation of conspiracy between Rivera and himself is not supported by any evidence. He
makes an issue out of those documents that were mentioned in the resolution of the
Deputy Ombudsman finding probable cause against him but were not in the records of the
Sandiganbayan. His mere signing of the ARCA does not allegedly establish culpability for
violation of RA 3019. Further, he faults the Sandiganbayan for invoking the doctrine of non-
interference by the courts in the determination by the Ombudsman of the existence of
probable cause. It is petitioner Go's view that the Sandiganbayan should have ordered the
quashal of the Information for palpable want of probable cause coupled with the absence
of material documents. CAaDTH

The petition is bereft of merit.


For clarity, Section 3 (g) of RA 3019 is quoted below a new:
SEC. 3. Corrupt practices of public officers. — In addition to acts or omissions
of public officers already penalized by existing law, the following shall constitute
corrupt practices of any public officer and are hereby declared to be unlawful:

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xxx xxx xxx

(g) Entering, on behalf of the Government, into any contract or transaction


manifestly and grossly disadvantageous to the same, whether or not the public
officer profited or will profit thereby.

As earlier mentioned, the elements of this offense are as follows:


(1) that the accused is a public officer;

(2) that he entered into a contract or transaction on behalf of the government;


and

(3) that such contract or transaction is grossly and manifestly


disadvantageous to the government. 1 4 ASaTCE

Contrary to the contention of petitioner Go, however, the fact that he is not a public officer
does not necessarily take him out of the ambit of Section 3 (g) of RA 3019. Petitioner Go's
simplistic syllogism, i.e., he is not a public officer ergo he cannot be charged with violation
of Section 3 (g) of RA 3019, goes against the letter and spirit of the avowed policy of RA
3019 as embodied in Section 1 thereof:
SEC. 1. Statement of policy. — It is the policy of the Philippine Government, in
line with the principle that a public office is a public trust, to repress certain acts
of public officers and private persons alike which constitute graft or corrupt
practices or which may lead thereto.

As early as in 1970, through the erudite Justice J.B.L. Reyes in Luciano v. Estrella, 1 5 the
Court had ascertained the scope of Section 3 (g) of RA 3019 as applying to both public
officers and private persons:
. . . [T]he act treated thereunder [referring to Section 3(g) of RA 3019] partakes the
nature of malum prohibitum; it is the commission of that act as defined by law,
not the character or effect thereof, that determines whether or not the provision
has been violated. And this construction would be in consonance with the
announced purpose for which Republic Act 3019 was enacted, which is the
repression of certain acts of public officers and private persons constituting
graft or corrupt practices act or which may lead thereto. 1 6 HTacDS

Like in the present case, the Information in the said case charged both public officers and
private persons with violation of Section 3 (g) of RA 3019.
Section 9 of RA 3019 buttresses the conclusion that the anti-graft law's application
extends to both public officers and private persons. The said provision, quoted earlier,
provides in part that:
SEC. 9. (a) Any public officer or private person committing any of the
unlawful acts or omissions enumerated in Sections 3, 4, 5 and 6 of this Act shall
be punished with imprisonment for not less than six years and one month nor
more than fifteen years, perpetual disqualification from public office, and
confiscation or forfeiture in favor of the Government of any prohibited interest
and unexplained wealth manifestly out of proportion to his salary and other
lawful income.
xxx xxx xxx

The fact that one of the elements of Section 3 (g) of RA 3019 is "that the accused is a
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public officer" does not necessarily preclude its application to private persons who, like
petitioner Go, are being charged with conspiring with public officers in the commission of
the offense thereunder. IDEHCa

The case of Singian, Jr. v. Sandiganbayan 1 7 is instructive. In the said case, Gregorio
Singian, Jr., a private person who was then Executive Vice-President of Integrated Shoe,
Inc. (ISI), together with some officers of the Philippine National Bank (PNB), was charged
with violation of Section 3 (e) and (g) of RA 3019 in connection with the loan
accommodations that the said bank extended to ISI which were characterized as behest
loans.
A total of eighteen Informations were filed against Singian and his co-accused by the
Office of the Ombudsman before the Sandiganbayan corresponding to the nine loan
accommodations granted to ISI. Each loan was subject of two Informations alleging
violations of both Section 3 (e) and (g), respectively. In other words, nine Informations
charged Singian and his co-accused with violation of Section 3 (e) of RA 3019 and the
other nine charged them with violation of paragraph (g) of the same provision.
Singian filed with the Sandiganbayan a motion for re-determination of existence of
probable cause but the same was dismissed. He then filed with the Court a petition for
certiorari but it was likewise dismissed as the Court held that the Ombudsman and the
Sandiganbayan had not committed grave abuse of discretion when they respectively found
probable cause against Singian for violations of both paragraphs (e) and (g) of Section 3
of RA 3019. DAcSIC

Singian thus illustrates that private persons, like petitioner Go, when conspiring with public
officers, may be indicted and, if found guilty, held liable for violation of Section 3 (g) of RA
3019. Another case, Domingo v. Sandiganbayan, 1 8 may likewise be applied to this case by
analogy.
In the said case, Diosdado Garcia, proprietor of D.T. Garcia Construction Supply, together
with Jaime Domingo, then municipal mayor of San Manuel, Isabela, was charged with
Section 3 (h) of RA 3019 as it appeared that he was used by Domingo as a dummy to
cover up his business transaction with the municipality. Section 3 (h) of the anti-graft law
reads:
SEC. 3. Corrupt practices of public officers. — . . .
(h) Directly or indirectly having financial or pecuniary interest in any business,
contract or transaction in connection with which he intervenes or takes part in his
official capacity, or in which he is prohibited by the Constitution or by any law
from having an interest. IcESDA

The elements of this offense are: (1) that the accused is a public officer; (2) he has a direct
or indirect financial or pecuniary interest in any business, contract, or transaction; (3) he
either: (a) intervenes or takes part in his official capacity in connection with such interest,
or (b) is prohibited from having such interest by the Constitution or by law. 1 9
Despite the first element mentioned above, the Court affirmed the conviction of Garcia, a
private individual, as well as that of Domingo, who was then a municipal mayor, for
violation of Section 3 (h) of RA 3019. In so holding, the Court established that Domingo
and Garcia acted in conspiracy with one another in the commission of the offense.
Domingo thus also serves to debunk petitioner Go's theory that where an offense has as
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one of its elements that the accused is a public officer, it necessarily excludes private
persons from the scope of such offense.
The precept that could be drawn from Luciano, Singian and Domingo, and which is
applicable to the present case, is that private persons, when acting in conspiracy with
public officers, may be indicted and, if found guilty, held liable for the pertinent offenses
under Section 3 of RA 3019, including (g) and (h) thereof. This is in consonance with the
avowed policy of the anti-graft law to repress certain acts of public officers and private
persons alike constituting graft or corrupt practices act or which may lead thereto. CDaTAI

Reliance by petitioner Go on Marcos v. Sandiganbayan 2 0 is not quite appropriate. To recall,


upon her motion for reconsideration, the Court therein acquitted former First Lady Imelda
Marcos of the charge of violation of Section 3 (g) of RA 3019 in its Resolution dated
October 6, 1998. Her acquittal was based on the finding that she signed the subject lease
agreement as a private person, not as a public officer. As such, the first element, i.e., that
the accused is a public officer was wanting.
Petitioner Go, however, failed to put the Court's ruling in Marcos in its proper factual
backdrop. The acquittal of the former First Lady should be taken in the context of the
Court's Decision dated January 29, 1998, in Dans, Jr. v. People, 2 1 which the former First
Lady sought to reconsider and, finding merit in her motion, gave rise to the Court's
Resolution in Marcos. In Dans, the Information filed against the former First Lady and Jose
P. Dans, Jr., then Minister of Transportation and Communications, for violation of Section 3
(g) of RA 3019, alleged that they were both public officers and, conspiring with each other,
entered into the subject lease agreement covering the LRTA property with the PGHFI, a
private entity, under terms and conditions manifestly and grossly disadvantageous to the
government.
The Court in its original decision affirmed the former First Lady's conviction for violation of
Section 3 (g) of RA 3019 but acquitted her co-accused, Dans, Jr., of the said offense. As
stated earlier, upon the former First Lady's motion for reconsideration, the Court reversed
her conviction in its Resolution in Marcos.
It can be gleaned from the entire context of Marcos and Dans that the reversal of the
former First Lady's conviction was based on the fact that it was later held that she signed
the subject lease agreement as a private person, not a public officer. However, this
acquittal should also be taken in conjunction with the fact that the public officer with
whom she had supposedly conspired, her co-accused Dans, had earlier been acquitted. In
other words, the element that the accused is a public officer, was totally wanting in the
former First Lady's case because Dans, the public officer with whom she had allegedly
conspired in committing Section 3 (g) of RA 3019, had already been acquitted. Obviously,
the former First Lady could not be convicted, on her own as a private person, of the said
offense. ACETIa

In contrast, petitioner Go cannot rightfully assert the total absence of the first element in
his case because he is not being charged alone but in conspiracy with Rivera, undoubtedly
a public officer by virtue of his then being the DOTC Secretary. The case against both of
them is still pending before the Sandiganbayan. The facts attendant in petitioner Go's case
are, therefore, not exactly on all fours as those of the former First Lady's case as to
warrant the application of the Marcos ruling in his case.
Anent the allegation of conspiracy, it is posited by the dissenting opinion that the
Information is infirm as far as petitioner Go is concerned because it failed to mention with
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specificity his participation in the planning and preparation of the alleged conspiracy. It
opines that "aside from the sweeping allegation of conspiracy, the Information failed to
mention any act as to how petitioner had taken part in the planning and preparation of the
alleged conspiracy. Mere allegation of conspiracy in the Information does not necessarily
mean that the criminal acts recited therein also pertain to petitioner." While it concedes
that the Sandiganbayan may exercise jurisdiction over private individuals, it submits that it
may do so only "upon Information alleging with specificity the precise violations of the
private individual." By way of conclusion, the dissenting opinion cites Sistoza v. Desierto 2 2
where the Court stated that a signature appearing on a document is not enough to sustain
a finding of conspiracy among officials and employees charged with defrauding the
government.
These asseverations, however, are unpersuasive. It is well established that the presence or
absence of the elements of the crime is evidentiary in nature and is a matter of defense
that may be passed upon after a full-blown trial on the merits. 2 3 In the same manner, the
absence (or presence) of any conspiracy among the accused is evidentiary in nature and is
a matter of defense, the truth of which can be best passed upon after a full-blown trial on
the merits. 2 4
Following these truisms, the specific acts of petitioner Go in the alleged conspiracy with
Rivera in violating Section 3 (g) of RA 3019 as well as the details on how petitioner Go had
taken part in the planning and preparation of the alleged conspiracy need not be set forth
in the Information as these are evidentiary matters and, as such, are to be shown and
proved during the trial on the merits. Indeed, it bears stressing that "[t]o establish
conspiracy, direct proof of an agreement concerning the commission of a felony and the
decision to commit it is not necessary. It may be inferred from the acts of the accused
before, during or after the commission of the crime which, when taken together, would be
enough to reveal a community of criminal design, as the proof of conspiracy is
frequently made by evidence of a chain of circumstances . Once established, all the
conspirators are criminally liable as co-principals regardless of the degree of participation
of each of them, for in contemplation of the law the act of one is the act of all." 2 5 ECSHAD

In this connection, for purposes of the Information, it is sufficient that the requirements of
Section 8, Rule 110 of the Rules of Court are complied with:
SEC. 8. Designation of the offense. — The complaint or information shall
state the designation of the offense given by the statute, aver the acts or
omissions constituting the offense, and specify its qualifying and aggravating
circumstances. If there is no designation of the offense, reference shall be made
to the section or subsection of the statute punishing it.

An accused, like petitioner Go, may file a motion to quash the Information under Section
3(a) of Rule 117 on the grounds that the facts charged do not constitute an offense. In
such a case, the fundamental test in determining the sufficiency of the material averments
of an Information is whether or not the facts alleged therein, which are hypothetically
admitted, would establish the essential elements of the crime defined by law. Evidence
aliunde or matters extrinsic of the Information are not to be considered. 2 6
As correctly outlined by the Office of the Ombudsman, the facts alleged in the Information,
if admitted hypothetically, establish all the elements of Section 3 (g) of RA 3019 vis-à-vis
petitioner Go: EcTIDA

ELEMENTS ALLEGATIONS
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1. The offender is a public officer [T]he accused VICENTE C. RIVERA,
JR., Secretary of Department of
Transportation and Communications
(DOTC), committing the offense in
relation to his office and taking
advantage of the same, in conspiracy
with accused HENRY T. GO, Chairman
and President of Philippine International
Air Terminals, Co., . . ."
2. He entered into a contract or "[T]he accused VICENTE C. RIVERA,
transaction in behalf of the JR., . . . in conspiracy with accused
government HENRY T. GO . . . did then and there,
willfully & unlawfully and feloniously
entered into an Amended and Restated
Concession Agreement (ARCA), after
the project for the construction of the
Ninoy Aquino International Airport
International Passenger Terminal III
(NAIA IPT III) was awarded to
Paircargo Consortium/PIATCO . . .

3. The contract or transaction is ". . . which ARCA substantially amended


grossly and manifestly the draft Concession Agreement covering
disadvantageous to the the construction of the NAIA IPT III
government under Republic Act 6957, as amended by
Republic Act 7718 (BOT Law) providing
that the government shall assume the
liabilities of PIATCO in the event of the
latter's default specifically Article IV,
Section 4.04 (c) in relation to Article I,
Section 1.06 of the ARCA which terms
are more beneficial to PIATCO and in
violation of the BOT Law and manifestly
grossly disadvantageous to the
government of the Republic of the
Philippines." 2 7

Finally, in the assailed Resolution dated March 24, 2006, the Sandiganbayan ratiocinated
thus:
The rule is that the determination of probable cause during the preliminary
investigation is a function that belongs to the public prosecutor, the Office of the
Ombudsman in this case. Such official is vested with authority to determine
whether or not a criminal case must be filed in court and the concomitant
function of determining as well the persons to be prosecuted. Also, it must not be
lost sight of that the correctness of the exercise of such function is a matter that
the trial court itself does not and may not be compelled to pass upon, consistent
with the policy of non-interference by the courts in the determination by the
Ombudsman of the existence of probable cause.

Accordingly, upon the foregoing premises, we believe and so hold that any and all
questions relating to the finding of probable cause by the Office of the
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Ombudsman should be addressed to the said office itself, then to the Court of
Appeals and, ultimately, to the Supreme Court.
On the matter of the judicial determination of probable cause, we stand by our
finding that the same exists in this case, the said finding we arrived at upon a
personal determination thereof which we did for the purpose of and before the
issuance of the warrant of arrest. While it may indeed be true that the documents
mentioned by accused-movant as being absent in the records are missing, we
nevertheless had for our perusal other documents assiduously listed down by
accused Rivera in his motion, including the information, which we found to
constitute sufficient basis for our determination of the existence of probable
cause. It must be emphasized that such determination is separate and distinct
from that made by the Office of the Ombudsman and which we did independently
therefrom. 2 8 HaTAEc

The determination of probable cause during a preliminary investigation is a function of the


government prosecutor, which in this case is the Ombudsman. As a rule, courts do not
interfere in the Ombudsman's exercise of discretion in determining probable cause, unless
there are compelling reasons. 2 9 Mindful of this salutary rule, the Sandiganbayan
nonetheless made its own determination on the basis of the records that were before it. It
concluded that there was sufficient evidence in the records for the finding of the existence
of probable cause against petitioner Go.
Grave abuse of discretion implies a capricious and whimsical exercise of judgment
tantamount to lack or excess of jurisdiction. The exercise of power must have been done
in an arbitrary or a despotic manner by reason of passion or personal hostility. It must
have been so patent and gross as to amount to an evasion of positive duty or a virtual
refusal to perform the duty enjoined or to act at all in contemplation of law. 3 0 Clearly, in
the light of the foregoing disquisition, grave abuse of discretion cannot be imputed on the
Sandiganbayan when it held that there exists probable cause against petitioner Go.
ACCORDINGLY, the petition is DISMISSED for lack of merit. The assailed Resolutions dated
December 6, 2005 and March 24, 2006 of the Sandiganbayan in Criminal Case No. 28092
are AFFIRMED in toto.
SO ORDERED.
Austria-Martinez and Chico-Nazario, JJ., concur.
Ynares-Santiago, J., pls. see dissenting opinion.
Nachura, J., joins justice Ynarez-Santiago's dissent.

Separate Opinions
YNARES-SANTIAGO, J., dissenting :
At the outset, it must be stated that the issue here is not whether Republic Act (R.A.) No.
3019 applies as well to private persons. This issue has long been settled considering the
avowed purpose of R.A. No. 3019 which is to repress certain acts of public officers and
private persons constituting graft or corrupt practices or which may lead thereto. The real
issue here is whether petitioner Go, who is a private individual, may be properly indicted
under Section 3 (g). IEaHSD

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I maintain that petitioner Henry T. Go cannot be validly charged with violation of Section 3
(g) of R.A. No. 3019 which provides:
SEC. 3. Corrupt practices of public officers. — In addition to acts or omissions
of public officers already penalized by existing law, the following shall constitute
corrupt practices of any public officer and are hereby declared to be unlawful:

xxx xxx xxx

(g) Entering, on behalf of the Government, into any contract or transaction


manifestly and grossly disadvantageous to the same, whether or not the public
officer profited or will profit thereby.

To be indicted of the offense under Section 3 (g) of R.A. No. 3019, the following elements
must be present: IACDaS

1) that the accused is a public officer;

2) that he entered into a contract or transaction on behalf of the government;


and

3) that such contract or transaction is grossly and manifestly


disadvantageous to the government. 1

As to the first element, petitioner is not a public officer within the purview of the law. It
follows that he cannot enter into contract or transaction on behalf of the government. In
Sajul v. Sandiganbayan, 2 only the public officers were charged with violation of Section 3
(g). The private individuals were not included in the indictment.
To reiterate, this is not to say that R.A. No. 3019 does not punish private individuals.
However, it must be stressed that Section 3 of R.A. No. 3019 refers only to corrupt
practices of public officers whereas Section 4 of the same law provides for the prohibition
on private individuals. Under the last paragraph of Section 3 and Section 4, private persons
are liable together with public officers, for the following specific acts, to wit:
SEC. 3. Corrupt practices of public officers. — . . .
xxx xxx xxx
The person giving the gift, present, share, percentage or benefit referred to in
subparagraphs (b) and (c); or offering or giving to the public officer the
employment mentioned in subparagraph (d); or urging the divulging or untimely
release of the confidential information referred to in subparagraph (k) of this
section shall, together with the offending public officer, be punished under
Section nine of this Act and shall be permanently or temporarily disqualified, in
the discretion of the Court, from transacting business in any form with the
Government. cAIDEa

SEC. 4. Prohibition on private individuals. — (a) It shall be unlawful for any


person having family or close personal relation with any public official to
capitalize or exploit or take advantage of such family or close personal relation by
directly or indirectly requesting or receiving any present, gift or material or
pecuniary advantage from any other person having some business, transaction,
application, request or contract with the government, in which such public official
has to intervene. Family relation shall include the spouse or relatives by
consanguinity or affinity in the third civil degree. The word "close personal
relation" shall include close personal relationship, social and fraternal
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connections, and professional employment all giving rise to intimacy which
assures free access to such public officer.

(b) It shall be unlawful for any person knowingly to induce or cause any
public official to commit any of the offenses defined in Section 3 hereof.

The information in the instant case does not specify with particularity the violation or
prohibited acts which may have been committed by the petitioner under the
abovementioned provisions. Petitioner, who is a private individual, is only charged with
having conspired with Rivera in entering into a contract which is manifestly and grossly
disadvantageous to the government. Aside from this sweeping allegation of conspiracy,
the information failed to mention any act as to how petitioner had taken part in the
planning and preparation of the alleged conspiracy. Mere allegation of conspiracy in the
information does not necessarily mean that the criminal acts recited therein also pertain to
petitioner.
It is well-settled that penal statutes are strictly construed against the State and liberally for
the accused, so much so that the scope of a penal statute cannot be extended by good
intention or by implication. Evidence of guilt must be premised upon a more knowing,
personal and deliberate participation of each individual who is charged with others as part
of a conspiracy. 3 Although the accused are tried jointly, their guilt should remain individual
and personal. AIcaDC

There is no question that the Sandiganbayan may exercise jurisdiction over private
individuals, but it may only do so upon information alleging with specificity the precise
violations of that private individual. The liability of private individuals should not be made
to depend on whether the facts alleged in the information, against the public officer
constituted a crime under Section 3 (g) of R.A. No. 3019. Rather, it should be made to
depend on whether the facts alleged in the information support a prima facie finding that
the private individual conspired with the public officer, or that he knowingly induced the
accused public official to commit the crime charged.
In the case of Luciano v. Estrella, 4 the information precisely charged accused public
officials and private persons with violation of Sections 3 (g) and 4 (b). Thus, Jose Gutierrez
and Franco A. Gutierrez, as private persons, were charged with violation of "Section 3 (g)
and 4 (b) ," to wit:

On 18 January 1969, Maximo Estrella, Teotimo Gealogo, Justino Ventura, Pedro


Ison, Ignacio Babasa, Bernardo Nonato, Eduardo S. Francisco, Cirilo Delmo, Jose
San Mateo, Lutgardo Ambrosio, Ciriaco Alano, Gualberto San Pedro, Jose
Gutierrez, Franco A. Gutierrez were charged with violation of Section 3-G and
4-B of Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act) in an
information reading as follows: ESTCDA

"That on or about July 26, 1967, and for sometime prior and subsequent
thereto, in the Municipality of Makati, Province of Rizal, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused,
Maximo Estrella, then the Municipal Mayor of Makati, Rizal; Teotimo
Gealogo, Justino Ventura, Pedro Ison, Ignacio Babasa, Bernardo Nonato,
then Municipal Councilors of Makati, Rizal; Eduardo S. Francisco, then
Municipal Treasurer of Makati, Rizal; Cirilo Delmo, then Assistant
Municipal Treasurer of Makati, Rizal; Lutgardo Ambrosio, then Chief of
Traffic Control Bureau, Makati Police Department; Ciriaco Alano, then
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confidential Private Secretary to the Municipal Mayor, Gualberto San
Pedro, then Provincial Auditor of the Province of Rizal; Jose Gutierrez
and Franco A. Gutierrez, owner and/or representatives of the JEP
Enterprises , respectively, conspiring and confederating together, did, then
and there, willfully, unlawfully and feloniously, on behalf of the Municipal
Government of Makati, Rizal, enter into a contract or transaction with the
JEP Enterprises, represented by Jose Gutierrez and Franco A. Gutierrez, for
the delivery and installation by the JEP Enterprises to the Municipal
Government of Makati, Rizal of fifty-nine (59) units of traffic deflectors
valued at ONE THOUSAND FOUR HUNDRED AND TWENTY-SIX PESOS
AND FIFTY CENTAVOS (P1,426.60) each unit, that thirty-four (34) units
were delivered, installed and paid for by the Municipality of Makati in favor
of the JEP Enterprises in the amount FORTY-EIGHT THOUSAND EIGHT
HUNDRED FORTY ONE PESOS (P48,841.00), less ten percent (10%)
retention, which contract or transaction is manifestly and grossly
disadvantageous to the Municipal Government of Makati, Rizal, to the
damage and prejudice of the latter.
"That Jose Gutierrez and Franco [C.] Gutierrez, being the owner,
manager and/or representatives of the JEP Enterprises, being
private persons , did knowingly induce or cause the above-
mentioned public officials and officers to enter into the
aforementioned contract or transaction ." 5 (Underscoring supplied)

By analogy, reference may be made to Articles 210 (Direct Bribery) and 212 (Corruption of
Public Officials) of the Revised Penal Code. In Direct Bribery, the public officer agrees to
perform an act either constituting or not constituting a crime, in consideration of any offer,
promise, gift or present received by such officer. Significantly, only the public officer may
be indicted under and be held liable for Direct Bribery under Article 210, while the person
who conspired with the public officer, who made the promise, offer, or gave the gifts or
presents, may be indicted only under Article 212 for Corruption of Public Officials,
regardless of any allegation of conspiracy.
Indeed, it is axiomatic that all conspirators are criminally liable as co-principals. However,
they may not be necessarily charged with violation of the same offense. The public officer
may be charged under one provision while the private person is indicted under a different
provision, although the offenses originate from the same set of acts. Thus, the public
officer may be accused of Direct Bribery while the private person may be charged with
corruption of public officials. ISHaTA

In the same manner, a public officer may be charged with violation of Section 3 (g) of R.A.
No. 3019 while the private person is charged under Section 4 (b) of the same law, based
on the same set of conspiratory acts.
In the instant case, petitioner is charged with conspiring with Rivera when he signed the
ARCA which is manifestly disadvantageous to the government. However, the information is
fatally defective and infirm as far as petitioner is concerned.
Our ruling in Sistoza v. Desierto 6 is pertinent, to wit:
It is also too sweeping to conclude the existence of conspiracy from the
endorsements made by petitioner Sistoza to the Department of Justice of the
result of the bidding. Fairly evident is the fact that this action involved the very
functions he had to discharge in the performance of his official duties.
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Furthermore, contrary to the allegation that petitioner misrepresented key facts to
the Department of Justice, it is clear that his references to the price offered by
Elias General Merchandising and the rejection of the bid of Filcrafts Industries,
Inc., were supported by documents noted in and attached to his endorsements.
Hence, there was no way by which the approving authority, i.e., the Department of
Justice, could have been misled by him. Clearly, to prosecute him for violation of
Sec. 3, par. (e), RA 3019, on the basis of his endorsements would be the same as
pegging his criminal liability on a mere signature appearing on the document. In
Sabiniano v. Court of Appeals we held that a signature on a voucher, check or
warrant, even if required by law to be affixed thereon, is not enough to sustain a
finding of conspiracy among public officials and employees charged with
defraudation. We further ruled — ASHaTc

. . . Proof, not mere conjectures or assumptions, should be proffered to


indicate that the accused had taken part in, to use this Court's words in
Arias v. Sandiganbayan, the "planning, preparation and perpetration of the
alleged conspiracy to defraud the government" for, otherwise, any "careless
use of the conspiracy theory (can) sweep into jail even innocent persons
who may have (only) been made unwitting tools by the criminal minds"
really responsible for that irregularity . . . .

There is no dispute that R.A. No. 3019 was enacted in line with the government's policy to
repress certain acts of public officers as well as private persons. What I am saying,
however, is that petitioner Go may not be validly charged under Sec. 3 (g) alone because it
covers only the public officers.
I disagree with the ponencia in holding that petitioner's reliance on Marcos v.
Sandiganbayan 7 was misplaced. In that case, former First Lady Imelda R. Marcos and
Jose P. Dans, Jr. were charged with violation of Section 3 (g) of R.A. No. 3019. The
Information alleged:
That on or about June 8, 1984, and for sometime prior or subsequent thereto, in
Makati, Metro Manila, Philippines, and within the jurisdiction of this Honorable
Court, the accused IMELDA R. MARCOS and JOSE P. DANS, JR., public officers,
being then Chairman and Vice-Chairman, respectively, of the Light Rail Transit
Authority (LRTA), a government corporate entity created under Executive Order
No. 603 of the former President Ferdinand Marcos, while in the performance of
their official functions, taking advantage of their positions and committing the
crime in relation to their offices, did then and there willfully, unlawfully and
criminally conspiring with one another, enter on behalf of the aforesaid
government corporation into a Lease Agreement covering LRTA property located
in Pasay City, with the Philippine General Hospital Foundation, Inc. (PGHFI), a
private enterprise, under terms and conditions manifestly and grossly
disadvantageous to the government. (Emphasis supplied) IAEcaH

After trial, the Sandiganbayan convicted Marcos and Dans, Jr. of the offense charged. On
appeal, this Court in its Decision dated June 29, 1998, affirmed the conviction of Marcos
but acquitted Dans, Jr. Hence, Marcos filed a motion for reconsideration raising the issue
of whether all the elements of Section 3 (g) have been duly substantiated. In acquitting
Marcos, the Court noted that the Information specifically charged Marcos of violation of
Section 3 (g) because she allegedly signed the subject Lease Agreement as a public
officer in her capacity as Vice-Chairman of the LRTA. However, perusal of the subject
Lease Agreement showed that Marcos signed in her capacity as Chairman of Philippine
General Hospital Foundation, Inc. (PGHFI), a private charitable institution, and not as a
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public officer. Thus, the first element of Section 3 (g) is wanting. The Court held that:
The pivot of inquiry here is whether all the elements of the offense charged have
been duly substantiated. As regards the first element, did petitioner Imelda R.
Marcos enter into the Lease Agreement marked Exhibit "B" as a public officer? As
clearly stated on the face of the subject contract under scrutiny, petitioner signed
the same in her capacity as Chairman of PGHFI and not as Human Settlement
Minister nor as ex-officio Chairman of LRTA. It was Jose P. Dans, Jr. who signed
said Contract, as ex-officio Vice-Chairman of LRTA. Although petitioner was the
ex-officio Chairman of LRTA, at the time, there is no evidence to show that she
was present when the Board of Directors of LRTA authorized and approved the
Lease Agreement sued upon.
In light of the foregoing antecedent facts and circumstances, the irresistible
conclusion is that petitioner did not sign subject Lease Agreement as a public
officer, within the contemplation of RA 3019 and, therefore, the first element of
the offense charged is wanting.

No less than the Constitution ordains that the accused must be properly and sufficiently
informed of the nature of the accusation filed against him. In the instant case, Go should
be charged under Section 4 (b), in relation to Sec. 3 (g) of R.A. No. 3019, as it properly
pertains to private individuals, to wit: SECcAI

Section 4. ...
(b) It shall be unlawful for any person knowingly to induce or cause
any public official to commit any of the offenses defined in Section 3
hereof . (Emphasis supplied)

An accused's right to be informed of the nature and cause of the charges against him is
constitutionally enshrined, for an accused cannot be convicted of an offense, unless it is
clearly charged in the complaint or information . To reiterate, the Information lumping
the public official, Former DOTC Secretary Vicente Rivera, and the private individual,
petitioner Go, is legally infirm as Section 3 (g) can only be violated by a public officer. Any
private individual accused to have conspired with a public officer in violating Section 3 (g),
must be charged under the proper provision of the law . The acts for which private
persons can be charged together with the public officials are enumerated in the last
paragraph of Section 3 and Section 4, paragraphs (a) and (b) of R.A. No. 3019. It is
reiterated that for the Information against Go to be sufficient in form and substance, he
should be charged with specificity for violation of Section 4 (b) in relation to Section 3
(g) . TcSCEa

Indeed, there is a need to ferret out and expel corrupt public officers 8 and to punish the
private individuals who abet their illegal activities. However, the remedy is not to indict and
jail every person who happens to be a signatory in a contract 9 as in the instant case, which
later on is proved to be manifestly disadvantageous to the government.
ACCORDINGLY, I vote that the petition be GRANTED and the Resolutions dated December
6, 2005 and March 24, 2006 of the Sandiganbayan in Criminal Case No. 28092 be
REVERSED and SET ASIDE.
Footnotes

1. 450 Phil. 744 (2003).


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2. An Act Authorizing the Financing, Construction, Operation and Maintenance of
Infrastructure Projects by the Private Sector.

3. Supra, note 1, pp. 840-841.


4. The provision reads:

SEC. 3. Corrupt practices of public officers. — In addition to acts or omissions of public


officers already penalized by existing law, the following shall constitute corrupt practices
of any public officer and are hereby declared to be unlawful:
xxx xxx xxx

(g) Entering, on behalf of the Government, into any contract or transaction


manifestly and grossly disadvantageous to the same, whether or not the public officer
profited or will profit thereby.
5. Rollo, pp. 103-104.
6. Rollo, p. 63.
7. Id. at 17.
8. Luciano v. Estrella, 145 Phil. 448 (1970); Ingco v. Sandiganbayan, 338 Phil. 1061 (1997);
Dans, Jr. v. People, 349 Phil. 434 (1998).
9. 357 Phil. 762 (1998).

10. Petitioner Go cites, among others, the definition in Section 2 of RA 3019:

Sec. 2. Definition of Terms. — As used in this Act, the term —


(b) "Public Officer" includes elective and appointive officials an employees,
permanent or temporary, whether in the classified or unclassified or exempt service
receiving compensation, even nominal, from the government as defined in the
subparagraph."
Article 203 of the Revised Penal Code was also cited:

Art. 203. Who are public officers. — For the purpose of applying the provisions of
this and the preceding titles of the book, any person who by direct provision of the law,
popular election or appointment by competent authority, shall take part in the
performance of public functions in the Government of the Philippine Islands, or shall
perform in said Government or in any of its branches public duties as an employee,
agent or subordinate official, of any rank or class, shall be deemed to be a public officer.

11. Quoting REYES, THE REVISED PENAL CODE: BOOK TWO (15TH ed.), p. 451.

12. The provision reads:


SEC. 3. . . .

(e) Causing any undue injury to any party, including the Government, or giving any
private party any unwarranted benefits, advantage or preference in the discharge of his
official, administrative or judicial functions through manifest partiality, evident bad faith
or gross inexcusable negligence. This provision shall apply to officers and employees of
offices or government corporations charged with the grant of licenses or permits or other
concessions.

13. The elements of the offense defined in Section 3 (e) of RA 3019 are:
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(1) That the accused are public officers or private persons charged in conspiracy
with them;

(2) That the said public officers committed the prohibited acts during the
performance of official duties in relation to their public positions;

(3) That they caused undue injury to any party, whether the government or a
private party;

(4) That such injury was caused by giving unwarranted benefits, preference or
advantage to such parties; and
(5) That the public officers acted with manifest partiality, evident bad faith or
gross inexcusable negligence. (Citing, among others, Dela Chica v. Sandiganbayan, G.R.
No. 144823, December 8, 2003, 417 SCRA 242).

14. Supra note 8.


15. Supra note 8.
16. Id. at 464-465.
17. G.R. Nos. 160577-94, December 16, 2005, 478 SCRA 348.
18. G.R. No. 149175, October 25, 2005, 474 SCRA 203.

19. Id. at 215.


20. Supra note 9.
21. Supra note 8.
22. 437 Phil. 117 (2002).
23. Andres v. Cuevas, G.R. No. 150869, June 9, 2005, 460 SCRA 38.
24. Singian v. Sandiganbayan, supra note 17.
25. Domingo v. Sandiganbayan, supra note 18.
26. Cabrera v. Sandiganbayan, G.R. Nos. 162314-17, October 24, 2004, 441 SCRA 377.
27. Comment, p. 22; rollo, p. 369.
28. Rollo, pp. 67-68.
29. Villanueva v. Ople, G.R. No. 165125, November 18, 2005, 475 SCRA 539.
30. Id. at 551.
YNARES-SANTIAGO, J., dissenting :

1. Singian, Jr. v. Sandiganbayan, G.R. Nos. 160577-94, December 16, 2005, 478 SCRA 348,
359.
2. G.R. No. 135294, November 20, 2000, 345 SCRA 248.

3. Sistoza v. Desierto, 437 Phil. 117, 122.


4. G.R. No. L-31622, August 31, 1970, 34 SCRA 769.

5. Id. at 771-772.
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6. Supra note 3 136.
7. 357 Phil. 762 (1998).
8. Sistoza v. Desierto, supra note 3 at 120.
9. Id.

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