REPUBLIC OF THE PHILIPPINES

MUNICIPAL TRIAL COURT IN CITIES

CABUYAO CITY, LAGUNA

HELEN DANIELES BALONES,

Complainant,

-VERSUS- CRIM CASE NO. 12323

GERARDO MAIQUEZ CARBONELL

& MARILYN NODA FOR: CONCUBINAGE
Accused. (Art. 334 RPC)

X----------------------------------------------------X

COMMENTS
(With Counter- Motion to Dismiss)

COME NOW, respondents by counsel most respectfully move this Honorable Office
to suspend the preliminary investigation of the instant complaint on the ground of prejudicial
question and/or dismiss the instant case:

1. The sine qua non requirement of a Special Power of Attorney to attend and represent
a party litigant applies solely in Pre-Trial Conference, as provided Section 4, Rule 18
of the Revised Rules on Civil Procedure. To quote;

Section 4. Appearance of parties. It shall be the

duty of the parties and their counsel to appear at the pre-
trial. The non-appearance of a party may be excused
only if a valid cause is shown therefor or if a
representative shall appear in his behalf fully
authorized in writing to enter into an amicable
settlement, to submit to alternative modes of dispute
resolution, and to enter into stipulations or admissions of
facts and of documents. (n)

Our jurisprudence on requirement of a Special Power of Attorney for counsel

appearing for and on behalf of party litigants states that-

Section 4 imposes the duty on litigating parties

and their respective counsel during pre-trial. The
provision also provides for the instances where the non-
appearance of a party may be excused. Nothing,
however, in Section 4 provides for a sanction should the
parties or their respective counsel be absent during pre-
trial. Instead, the penalty is provided for in Section 5.
Notably, what Section 5 penalizes is the failure to appear
 of either the plaintiff or the defendant, and not their
respective counsel.1

Prior to the 1997 Rules of Court, a representative

was allowed to establish the authority needed by
showing either a written special power of attorney or by
competent evidence other than the self-serving assertions
of the representative. Noteworthy is the fact that Section
4, Rule 18 of the 1997 Rules of Court is a new
provision; and requires nothing less than that the
representative should appear in a partys behalf fully
authorized in writing to enter into an amicable
settlement, to submit to alternative modes of dispute
resolution, and to enter into stipulations of facts and of
documents.2

This is our well-settled case law that the sine qua non requirement for SPA on pre-
trial conference is necessary for any counsel, who appears for and on behalf of the
litigant is emphatically mandatory only in a pre-trial conference. In fact, nowhere
in any jurisprudence by the Supreme Court or Court of Appeals that such
requirement applies to a counsel who files a pleading for and on behalf of his
client in a preliminary investigation of a criminal complaint. Thus, the assertion of
complainant that the pleading (petition to suspend) filed requires for the
presentation and submission of a special power of attorney is without legal,
statutory and jurisprudential merit.

2. The sine-qua non requirement for Verification and Certification of Non- Forum
Shopping applies solely to initiatory pleadings in civil actions filed before any
judicial court or tribunal, as provided Sections 4 and 5 of Rule 7, Part I of the Revised
Rules of Civil Procedure. To quote;

Section 4. Verification. Except when

otherwise specifically required by law or rule,
pleadings need not be under oath, verified or
accompanied by affidavit.(5a)

A pleading is verified by an affidavit that the

affiant has read the pleading and that the allegations
therein are true and correct of his knowledge and belief.

A pleading required to be verified which contains

a verification based on "information and belief", or upon
"knowledge, information and belief", or lacks a proper

1
Rodolfo Paredes, Tito Alago and Agripino Baybay, Sr. V. Ernesto Verano and Cosme Hinunangan, G.R. No. 164375,
October 12, 2006
2
United Coconut Planters Bank v. Miguel Mike Magpayo, G.R. No. 149908 May 27, 2004 citing Lim Pin v. Liao Tan,
No. L-47740, 20 July 1982, 115 SCRA 290, 296-297; Development Bank of the Phils. v. Court of Appeals, G.R. No.
49410, 26 January 1989, 169 SCRA 409, 413; Home Insurance Co. v. United States Lines Co., No. L-25593, 15
November 1967, 21 SCRA 863, 866; Fountainhead International Phils., Inc. v. Court of Appeals, G.R. No. 86505, 11
February 1991, 194 SCRA 12, 18.
 verification, shall be treated as an unsigned pleading.
(6a)

Section 5. Certification against forum

shopping. The plaintiff or principal party shall certify
under oath in the complaint or other initiatory pleading
asserting a claim for relief, or in a sworn certification
annexed thereto and simultaneously filed therewith: (a)
that he has not theretofore commenced any action or
filed any claim involving the same issues in any court,
tribunal or quasi-judicial agency and, to the best of his
knowledge, no such other action or claim is pending
therein; (b) if there is such other pending action or
claim, a complete statement of the present status thereof;
and (c) if he should thereafter learn that the same or
similar action or claim has been filed or is pending, he
shall report that fact within five (5) days therefrom to the
court wherein his aforesaid complaint or initiatory
pleading has been filed.

In the interpretation on the kinds of pleadings that requires mandatory compliance

with the twin-requirement of verification and certification, our Supreme Court
enumerated the initiatory pleadings that require compliance with the attachment of
verification and certification. To quote:

In the case before us, we stress that as a general

rule, a pleading need not be verified, unless there is a
law or rule specifically requiring the same. Examples
of pleadings that require verification are: (1) all
pleadings filed in civil cases under the 1991 Revised
Rules on Summary Procedure; (2) petition for review
from the Regional Trial Court to the Supreme Court
raising only questions of law under Rule 41, Section 2;
(3) petition for review of the decision of the Regional
Trial Court to the Court of Appeals under Rule 42,
Section 1; (4) petition for review from quasi-judicial
bodies to the Court of Appeals under Rule 43, Section
5; (5) petition for review before the Supreme Court
under Rule 45, Section 1; (6) petition for annulment of
judgments or final orders and resolutions under Rule
47, Section 4; (7) complaint for injunction under Rule
58, Section 4; (8) application for preliminary
injunction or temporary restraining order under Rule
58, Section 4; (9) application for appointment of a
receiver under Rule 59, Section 1; (10) application for
support pendente lite under Rule 61, Section 1; (11)
petition for certiorari against the judgments, final
orders or resolutions of constitutional commissions
under Rule 64, Section 2; (12) petition for certiorari,
prohibition, and mandamus under Rule 65, Sections 1
to 3; (13) petition for quo warranto under Rule 66,
 Section 1; (14) complaint for expropriation under Rule
67, Section 1; (15) petition for indirect contempt under
Rule 71, Section 4, all from the 1997 Rules of Court;
(16) all complaints or petitions involving intra-
corporate controversies under the Interim Rules of
Procedure on Intra-Corporate Controversies; (17)
complaint or petition for rehabilitation and suspension
of payment under the Interim Rules on Corporate
Rehabilitation; and (18) petition for declaration of
absolute nullity of void marriages and annulment of
voidable marriages as well as petition for summary
proceedings under the Family Code.

In contrast, all complaints, petitions, applications,

and other initiatory pleadings must be accompanied by a
certificate against forum shopping, first prescribed by
Administrative Circular No. 04-94, which took effect on
April 1, 1994, then later on by Rule 7, Section 5 of the
1997 Rules of Court. It is not disputed herein that
respondents complaint for damages was accompanied
by such a certificate.

In addition, verification, like in most cases

required by the rules of procedure, is a formal, not
jurisdictional, requirement, and mainly intended to
secure an assurance that matters which are alleged are
done in good faith or are true and correct and not of mere
speculation. When circumstances warrant, the court may
simply order the correction of unverified pleadings or act
on it and waive strict compliance with the rules in order
that the ends of justice may thereby be served.3

This is our well-settled case law that the sine qua non twin requirement for the
submission and attachment of verification and certification of non-forum
shopping mandatorily applies only on initiatory pleadings filed before judicial
tribunal- lower courts, appellate courts and the Supreme Court. In fact, nowhere in
any jurisprudence by the Supreme Court or Court of Appeals that the twin
requirements of verification and certification is compulsorily necessary for any
pleadings filed in a preliminary investigation conducted by the prosecutor in the
determination of probable cause of any criminal offense lodged therein. Thus, the
assertion of complainant that the pleading (petition to suspend) filed requires for
the submission and attachment of verification and certification is without legal,
statutory and jurisprudential merit.

Furthermore, the pleading (petition to suspend) is not an initiatory pleading as it is

not the pleading that started the preliminary investigation before the Honorable
Office. The pleading is captioned as a petition (just like a petition for bail) merely
as a formal compliance with the legalese format under Rule 6, Rule 111 of the

3
Vallacar Transit, Inc. v. Jocelyn Catubig, G.R. No. 175512 May 30, 2011 citing Jimenez vda.
De Gabriel v. Court of Appeals, 332 Phil. 157, 165 (1996)
 Revised Rules of Court. In truth and in fact, however, it is a mere motion for
suspension before the Honorable Office filed after the filing of the initiatory
pleading in this preliminary investigation- the affidavit complaint of complainant
dated 10 February 2010. Thus, the initiatory pleading of complainants affidavit-
complaint is without any verification and certification. It follows, therefore, on
basic logic and rationale of her motion to dismiss/expunge, her failure to attach
verification and certification renders her initiatory pleading (affidavit complaint) a
useless scrap of paper.

3. The citation of cases and law books commentaries of respondent badly missed the
issue of prejudicial question. In all the cases cited and legal commentaries in
supposition, the issue of the primacy to suspend proceedings based on prejudicial
question was never raised and never discussed and adjudicated by the courts. In all
the complainants citation, the elements of the crimes were the predicated issue and
not of any the accused in the cited cases have raised the issue of prejudicial question
to suspend proceedings to allow the civil cases merits and claim adjudicated as an
anchor of dismissal of the criminal cases.

In other words, complainants arguments are on the issue of the trial and merit of a
criminal prosecution of the charges leveled against the accused; it fails to address the
necessary and required suspension of criminal proceedings upon motion on
prejudicial question for resolution in the civil case; it fails to adhere to the rule that
the facts and law on a civil action pertaining and directly related to the facts and issue
of the criminal complaint necessarily takes precedence; and therefore, the criminal
action should be suspended pending adjudication and final resolution of the pending
civil actions.

PRAYER

WHEREFORE, it is respectfully prayed that this Honorable Office to suspend the

preliminary investigation; OR in the alternative, to dismiss the instant case for failure of the
respondent to include a Verification & Certification of Non-Forum Shopping.

March 10, 2017.

Calamba City for Cabuyao City.

PETITION TO SUSPEND
PRELIMINARY INVESTIGATION

COMES NOW, respondent by counsel most respectfully moves this Honorable

Office to suspend the preliminary investigation of the instant complaint on the ground of
prejudicial question:

It is explicitly provided under Article 36 of The New Civil Code of the Philippines
that any criminal prosecution must be suspended on account of prejudicial question raised in
a civil action or administrative proceedings. To quote this statutory provision:
 Art. 36. Pre-judicial question, which
must be decided before any criminal prosecution
may be instituted or may proceed, shall be
governed by rules of court which the Supreme
Court shall promulgate and which shall not be in
conflict with the provisions of this Code.

In his treatise of The New Civil Code of the Philippines, Professor Arturo Tolentino
explained the concept and application of prejudicial question, in the following wise words:

A pre-judicial question is one raised in a

criminal case by the accused, which is of such nature
that, if decided favorably to the accused in a civil case,
will caused the supposed crime to disappear; the pre-
judicial question must be determinative of the case
before the court, and, that jurisdiction to try said question
must be lodged in another tribunal (P.P.I. vs. Aragon
(S.C.) 50 O.G. 4863). For this reason, the criminal case
must be suspended until the determination of such
question in a civil proceeding. For instance xxx xxx xxx.
Another which is the usual case provided for expressly in
legislation on this subject, is the question referring to the
validity of the marriage. If a person is accused of
bigamy, and he sets up a defense that his first marriage is
void and therefore the second marriage is legal, this
question is pre-judicial; the criminal case must be
suspended pending the decision in the civil case on the
validity of said first marriage.4

In pursuance with this settled-procedural rule on prejudicial question, in order to erase

any doubt on the wisdom and principle of prejudicial question, the drafters of the Revised
Rules of Criminal Procedure emphatically provided under Section s 6 and 7 of Rule 111 the
following mandatory rules:

Section 6, Rule 111 of the 2000 Revised Rules

of Criminal Procedure. A petition for suspension of the
criminal action based upon the pendency of a prejudicial
question in a civil action may be filed in the office of the
prosecutor or the court conducting the preliminary
investigation. When the criminal action has been filed in
court for trial, the petition to suspend shall be filed in the
same criminal action at any time before the prosecution
rests.

Section 7, Rule 111 of the 2000 Revised Rules

of Criminal Procedure. Elements of pre-judicial
question The elements of a pre-judicial question are:
(a) the previously instituted civil action involves an issue
4
Tolentino 1990, V.1, p.151-152
 similar or intimately related to the issue raised in the
subsequent criminal action, and (b) the resolution of such
issue determines whether or not the criminal action may
proceed.

In the interpretation of prejudicial applicable to criminal complaint for bigamy, our

Supreme Court emphatically opined that that should the question for annulment of the
second marriage pending in the court prosper on the ground that, according to the evidence,
petitioner's consent thereto was obtained by means of duress, force and intimidation, it is
obvious that his act was involuntary and cannot be the basis of his conviction for the crime of
bigamy with which he was charged. Thus the issue involved in the action for the annulment
of the second marriage is determinative of petitioner's guilt or innocence of the crime of
bigamy. To quote

In Merced v. Diez,5 what was in issue was the

validity of the second marriage, "which must be
determined before hand in the civil action before the
criminal action can proceed." According to the opinion
of Justice Labrador: "We have a situation where the issue
of the validity of the second marriage can be determined
or must first be determined in the civil action before the
criminal action for bigamy can be prosecuted. The
question of the validity of the second marriage is,
therefore, a prejudicial question because determination of
the validity of the second marriage is determinable in the
civil action and must precede the criminal action for
bigamy." It was the conclusion of this Court then that for
petitioner Merced to be found guilty of bigamy, the
second marriage which he contracted "must first be
declared valid." Its validity having been questioned in
the civil action, there must be a decision in such a case
"before the prosecution for bigamy can proceed."

To the same effect is the doctrine announced

in Zapanta v. Mendoza.6 As explained in the opinion of
Justice Dizon: "We have heretofore defined a prejudicial
question as that which arises in a case, the resolution of
which is a logical antecedent of the issue involved
therein, and the cognizance of which pertains to another
tribunal. . . . The prejudicial question we further said
must be determinative of the case before the court,
and jurisdiction to try the same must be lodged in
another court. . . . These requisites are present in the case
at bar. Should the question for annulment of the second
marriage pending in the Court of First Instance of
Pampanga prosper on the ground that, according to the
evidence, petitioner's consent thereto was obtained by
means of duress, force and intimidation, it is obvious that
his act was involuntary and can not be the basis of his
5
Merced v. Diez G.R. No. L-15315;August 26, 1960
6
Zapanta v. Mendoza G.R. No. L-14534;February 28, 1962
 conviction for the crime of bigamy with which he was
charged in the Court of First Instance of Bulacan. Thus
the issue involved in the action for the annulment of the
second marriage is determinative of petitioner's guilt or
innocence of the crime of bigamy. . . ."

In our jurisdiction, the concept and application of prejudicial is a well-enshrined rule

of law.

The doctrine of prejudicial question

comes into play generally in a situation where
civil and criminal actions are pending and the
issues involved in both cases are similar or so
closely related that an issue must be pre-
emptively resolved in the civil case before the
criminal action can proceed. Thus, the existence
of a prejudicial question in a civil case is alleged
in the criminal case to cause the suspension of the
latter pending final determination of the former. 7

In another case, the same ratio is applied.

A prejudicial question is understood in

law to be that which arises in a case the resolution
of which is a logical antecedent of the issue
involved in said case and the cognizance of which
pertains to another tribunal.8

In another long line of decisions, this is the statement of law:

If both civil and criminal cases have

similar issues, or the issue in one is intimately
related to the issues raised in the other, then a
prejudicial question would likely exist, provided
that the other element or characteristic is satisfied.
It must appear not only that the civil case involves
the same facts upon which the criminal
prosecution would be based, but also that the
resolution of the issues raised in the civil action
would be necessarily determinative of the guilt or
innocence of the accused. If the resolution of the
issue in the civil action will not determine the
criminal responsibility of the accused in the
criminal action based on the same facts, or if
there is no necessity that the civil case be
7
Quiambao vs. Osorio GR No. L-48157; March 16, 1988
8
Zapata v. Montesa, 4 SCRA 510(1962); People
v.Aragon,500.G. No.10,4863
 determined first before taking up the criminal
case, the civil case does not involve a prejudicial
question. Neither is there a prejudicial question if
the civil and the criminal action can, according to
law, proceed independently of each other.9

The existence of the 2 petitions before the Regional Trial Court of Calamba City is
indisputable. The factual issues and legal ramifications in those petitions are undeniably
determinative of the guilt or innocence of herein respondent. Thus, the concept and
application of prejudicial question abound for the suspension of the preliminary investigation
of the instant complaint.

Wherefore, it is respectfully prayed that this Honorable Office suspend the

preliminary investigation of the instant complaint until the final resolution of the 2 petitions
before the Regional Trial Court of Calamba City, Laguna.

General Principles
Probable Cause

To note, the underlying principle behind the courts power to

review a public prosecutors determination of probable cause is to
ensure that the latter acts within the permissible bounds of his
authority or does not gravely abuse the same. This manner of
judicial review is a constitutionally-enshrined form of check and
balance which underpins the very core of our system of
government. As aptly edified in the recent case of Alberto v. CA.10

It is well-settled that courts of law are precluded from disturbing

the findings of public prosecutors and the DOJ on the existence or
non-existence of probable cause for the purpose of filing criminal
informations, unless such findings are tainted with grave abuse of
discretion, amounting to lack or excess of jurisdiction. The
rationale behind the general rule rests on the principle of separation
of powers, dictating that the determination of probable cause for
the purpose of indicting a suspect is properly an executive
function; while the exception hinges on the limiting principle of
checks and balances, whereby the judiciary, through a special civil
action of certiorari , has been tasked by the present Constitution "
to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government." (Emphasis
supplied; citations omitted)

In the foregoing context, the Court observes that grave abuse of

discretion taints a public prosecutors resolution if he arbitrarily
9
Reyes v. Rossi, G.R. No. 159823, 18 February 2013; Yap v.
Cabales, G.R. No. 159186, 5 June 2009, 588 SCRA 426, 432-433;
Reyes v. Pearlbank Securities, Inc., G.R. No. 171435, 30 July
2008, 560 SCRA 518, 539-540; People v. Consing, Jr., 443 Phil.
454, 460 (2003); Sabandal v. Hon. Tongco, 419 Phil. 13, 18
(2001).
10
G.R. Nos. 182130 and 182132, June 19, 2013
 disregards the jurisprudential parameters of probable cause. In
particular, case law states that probable cause, for the purpose of
filing a criminal information, exists when the facts are sufficient to
engender a well-founded belief that a crime has been committed
and that the respondent is probably guilty thereof. It does not mean
"actual and positive cause" nor does it import absolute certainty.
Rather, it is merely based on opinion and reasonable belief and, as
such, does not require an inquiry into whether there is sufficient
evidence to procure a conviction; it is enough that it is believed
that the act or omission complained of constitutes the offense
charged. As pronounced in Reyes v. Pearl bank Securities, Inc.:11

A finding of probable cause needs only to rest on evidence

showing that more likely than not a crime has been committed by
the suspects. It need not be based on clear and convincing evidence
of guilt, not on evidence establishing guilt beyond reasonable
doubt, and definitely not on evidence establishing absolute
certainty of guilt. In determining probable cause, the average man
weighs facts and circumstances without resorting to the
calibrations of the rules of evidence of which he has no technical
knowledge. He relies on common sense. What is determined is
whether there is sufficient ground to engender a well-founded
belief that a crime has been committed, and that the accused is
probably guilty thereof and should be held for trial. It does not
require an inquiry as to whether there is sufficient evidence to
secure a conviction.3(Emphasis supplied)

Apropos thereto, for the public prosecutor to determine if there

exists a well-founded belief that a crime has been committed, and
that the suspect is probably guilty of the same, the elements of the
crime charged should, in all reasonable likelihood, be present. This
is based on the principle that every crime is defined by its
elements, without which there should be, at the most, no criminal
offense.12

With these precepts in mind, the Court proceeds to assess the

specific incidents in this case.

11
G.R. No. 171435, July 30, 2008, 560 SCRA 518
12
Ang-Abaya v. Ang, G.R. No. 178511, December 4, 2008, 573 SCRA 129, 143