THIRD DIVISION

[G.R. No. 168918. March 2, 2009.]

PEOPLE OF THE PHILIPPINES , petitioner, vs . HERMENEGILDO

DUMLAO y CASTILIANO and EMILIO LA'O y GONZALES , respondents.

DECISION

CHICO-NAZARIO , J : p

On appeal is the Resolution 1 of the Sandiganbayan in Criminal Case No. 16699

dated 14 July 2005 which granted the Motion to Dismiss/Quash of respondent
Hermenegildo C. Dumlao and dismissed the case against him. The Sandiganbayan likewise
ordered the case against respondent Emilio G. La'o archived. The dispositive portion of the
resolution reads:
WHEREFORE, nding the Motion to Dismiss/Quash led by accused
Hermenegildo C. Dumlao to be meritorious this case as against him is hereby
ordered DISMISSED.

The cash bond posted by him is hereby cancelled and accused Dumlao is
allowed to withdraw the same from the Cashier's Office of this Court.

The hold departure order issued by this Court against herein accused
Dumlao is lifted and set aside.

The Commissioner of the Bureau of Immigration and Deportation is

ordered to cancel the name of accused Hermenegildo C. Dumlao from the
Bureau's Hold Departure List.

This case as against Emilio La'o who is still at large is ordered archived. 2
ECcTaH

On 19 July 1991, an Amended Information was led before the Sandiganbayan

charging respondents Dumlao and La'o, Aber P. Canlas, Jacobo C. Clave, Roman A. Cruz, Jr.
and Fabian C. Ver with violation of Section 3 (g) of Republic Act No. 3019, as amended,
otherwise known as the Anti-Graft and Corrupt Practices Act. The case was docketed as
Criminal Case No. 16699. The accusatory portion of the information reads:
That on or about May 10, 1982, or for sometime prior or subsequent
thereto, in Manila, Philippines, and within the jurisdiction of this Honorable Court,
the accused Hermenegildo C. Dumlao, Aber Canlas, Jacobo C. Clave, Roman A.
Cruz, Jr., and Fabian C. Ver, being then the members of the Board of Trustees of
the Government Service Insurance System (GSIS) which is a government
corporation and therefore all public o cers, conspiring and confederating
together and mutually helping one another, while in the performance of their
o cial functions, did then and there willfully, unlawfully and criminally enter into
contract of lease-purchase with Emilio G. La'o, a private person whereby the GSIS
agreed to sell to said Emilio G. La'o, a GSIS acquired property consisting of three
parcels of land with an area of 821 square meters together with a 5-storey
building situated at 1203 A. Mabini St., Ermita, Manila, known as the Government
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 Counsel Centre for the sum of P2,000,000.00 with a down payment of
P200,000.00 with the balance payable in fteen years at 12% interest per annum
compounded yearly, with a yearly amortization of P264,278.37 including principal
and interest granting Emilio G. La'o the right to sub-lease the ground oor for his
own account during the period of lease, from which he collected yearly rentals in
excess of the yearly amortization which contract is manifestly and grossly
disadvantageous to the government. 3 EAHcCT

When arraigned on 9 November 2004, respondent Dumlao, with the assistance of

counsel de parte, pleaded "not guilty" to the offense charged. 4 As agreed upon by the
prosecution and respondent Dumlao, a Joint Stipulation of Facts and Admission of
Exhibits was submitted to the court on 10 January 2005. 5 On the basis thereof, the court
issued on 19 January 2005 the following Pre-Trial Order:
PRE-TRIAL ORDER

The Prosecution and Accused Hermenegildo C. Dumlao, as assisted by

counsel, submitted their "JOINT STIPULATION OF FACTS AND ADMISSION OF
EXHIBITS" dated December 21, 2004, quoted hereunder: CAcDTI

I. STIPULATION OF FACTS

The Prosecution and Accused Dumlao jointly stipulate on the following:

1. That at the time material to this case, the following were members
of the Board of Trustees of the Government Service Insurance System (GSIS):

a. Hermenegildo C. Dumlao

b. Aber P. Canlas

c. Jacobo C. Clave
d. Roman A. Cruz

e. Fabian C. Ver

f. Leonilo M. Ocampo and

g. Benjamin C. Morales;

2. That Emilio Gonzales La'o is a private person;

3. That GSIS was the owner of a property consisting of three (3)

parcels of land with an area of 821 square meters, together with a 5-storey
building situated as 1203 A. Mabini Street, Ermita, Manila known as the
Government Counsel Centre; cTADCH

4. That on June 22, 1978, the GSIS entered into a Lease-Purchase

Agreement with the Republic of the Philippines through the O ce of the
Government Corporate Counsel (OGCC) involving the property described under
paragraph 3 above, for a consideration of P1.5 million payable in equal yearly
amortizations for a period of fteen (15) years with zero interest. The period
should commence after the GSIS shall have renovated the building according to
the specification of the OGCC;
5. That in accordance with the June 22, 1978 Lease-Purchase
Agreement, the 5-storey building was renovated. Thereafter, the OGCC occupied
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 the same;

6. That Ferdinand E. Marcos was, at all-times material hereto, the

President of the Republic of the Philippines;

7. That then President was at all times material hereto, legislating

through the issuance of Presidential Decrees, Executive Orders and the like; DASEac

8. That among the three Members of the Board who signed the
Minutes only accused Dumlao was charged in this case;

9. That there are only seven (7) members of the Board of Trustees of
the GSIS present during the board meeting held on April 23, 1982;

10. Exhibit "A" and "1" entitled Agreement was signed by Luis A.
Javellana, for and in behalf of the GSIS, Felipe S. Aldaña, for and [in] behalf of the
Republic of the Philippines thru Government Corporate Counsel, and Emilio
Gonzales La'o, as buyer.

II. DOCUMENTARY EVIDENCE

The Prosecution and Accused Dumlao admitted the authenticity and due
execution of the following documentary evidence: aITECD

EXHIBITS DESCRIPTION

"A" (also Exhibit "1" The Agreement executed by and

for accused Dumlao among the GSIS, the Republic of
the Philippines, through OGCC
and accused Emilio Gonzales
La'o on May 10, 1982,
consisting of 11 pages;
"B" (also Exhibit "2" The pertinent portion, including
for accused Dumlao) the signature page, of Minutes of
Meeting No. 14 of the GSIS
Board of Trustees held on April
23, 1982, specifically containing
item no. 326 regarding the
approval of the proposed
Agreement by and among the
GSIS, the Republic of the
Philippines through the OGCC and
accused Emilio Gonzales La'o,
consisting of 5 pages.

III. RESERVATION
The Prosecution and Accused Dumlao reserve the right to mark and offer
in evidence the documents mentioned in their respective Pre-Trial Briefs, as well
as to present the witnesses listed therein.
IV. ISSUE

Whether or not accused Dumlao is liable for violation of Section 3 (g), RA

3019.

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 WHEREFORE, with the submission by the parties of their Joint Stipulation
of Facts, the pre-trial is deemed terminated. Let the above-mentioned joint
stipulation as recited in this pre-trial order bind the parties, limit the trial to matters
not disposed of, and control the course of the proceedings in this case unless
modified by the Court to prevent manifest injustice. 6

On 21 February 2005, respondent Dumlao led a Motion to Dismiss/Quash on the

ground that the facts charged do not constitute an offense. 7 He stated that the
prosecution's main thrust against him was the alleged approval by the Government Service
Insurance System (GSIS) Board of Trustees — of which he was a member — of the Lease-
Purchase Agreement entered into by and among the GSIS, the O ce of the Government
Corporate Counsel (OGCC) and respondent La'o. He argued that the allegedly approved
Board Resolution was not in fact approved by the GSIS Board of Trustees, contrary to the
allegations in the information. Since the signatures of Fabian Ver, Roman Cruz, Aber Canlas
and Jacobo Clave did not appear in the minutes of the meeting held on 23 April 1982, he
said it was safe to conclude that these people did not participate in the alleged approval of
the Lease-Purchase Agreement. This being the case, he maintained that there was no
quorum of the board to approve the supposed resolution authorizing the sale of the GSIS
property. There being no approval by the majority of the Board of Trustees, there can be no
resolution approving the Lease-Purchase Agreement. The unapproved resolution, he
added, proved his innocence. He further contended that the person to be charged should
be Atty. Luis Javellana, who sold the subject property to respondent La'o without the
proper authority. He likewise wondered why he alone was charged without including the
other two signatories in the minutes of the meeting held on 23 April 1982.
On 14 July 2005, the Sandiganbayan issued the assailed resolution. It ruled:
The Court nds the motion meritorious. The minutes of the meeting held
on April 23, 1982 of the Board of Trustees of GSIS shows that the Board failed to
approve the Lease-Purchase Agreement in question. As stipulated upon by both
parties out of the seven (7) members of GSIS Board of Trustees only three (3)
members signed the minutes, the others did not. In order to validly pass a
resolution at least a majority of four (4) members of the Board of Trustees must
sign and approve the same.
No amount of evidence can change the fact that Resolution dated April 23,
1982 was not validly passed by the Board of Trustees of GSIS since it was only
signed by three (3) members of the Board. Thus, it never had the force and effect
of a valid resolution and did not in effect approve the Lease and Purchase
Agreement subject matter hereof. Therefore, the prosecution has no cause of
action against herein movant-accused Hermenegildo C. Dumlao. 8 ACHEaI

On 2 September 2005, the People of the Philippines, represented by the O ce of

the Ombudsman, thru the O ce of the Special Prosecutor, led a petition for certiorari 9
under Rule 45 of the Rules of Court seeking the reversal and setting aside of the
Sandiganbayan Resolution dismissing the case against respondent Dumlao. Petitioner
raises the following issues:
I) WHETHER OR NOT THE COURT A QUO ACTED IN ACCORDANCE
WITH LAW AND JURISPRUDENCE WHEN IT RESOLVED TO DISMISS CRIMINAL
CASE NO. 16699 AS AGAINST RESPONDENT DUMLAO AFTER THE PRE-TRIAL
AND BEFORE THE PETITIONER COULD PRESENT ITS WITNESSES AND
FORMALLY OFFER ITS EXHIBITS.

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 II) WHETHER OR NOT THE SIGNATURES OF THE MAJORITY OF THE
GSIS BOARD OF TRUSTEES ARE NECESSARY ON THE MINUTES OF MEETING
NO. 14 DATED 23 APRIL 1982 TO GIVE FORCE AND EFFECT TO RESOLUTION
NO. 326 APPROVING THE PROPOSED AGREEMENT BY AND AMONG THE GSIS,
THE OGCC AND RESPONDENT EMILIO LA'O.

III) WHETHER OR NOT THE VALIDITY OF THE CONTRACT IS AN

ESSENTIAL ELEMENT OF VIOLATION OF SECTION 3(G), RA 3019.

IV) WHETHER OR NOT THE COURT A QUO ACTED IN ACCORDANCE

WITH LAW AND JURISPRUDENCE WHEN IT RESOLVED TO ARCHIVE THE CASE
AGAINST RESPONDENT LA'O.IcDCaT

On the other hand, respondent Dumlao proffers the following grounds to support
the dismissal of the case against him:
1. TO GIVE DUE COURSE TO THE OMBUDSMAN'S PETITION IS TO
PLACE DUMLAO IN DOUBLE JEOPARDY, IN VIOLATION OF HIS
CONSTITUTIONAL RIGHTS;
2. THE SANDIGANBAYAN COULD NOT BE SAID TO HAVE GRAVELY
ABUSED ITS DISCRETION AMOUNTING TO LACK OF JURISDICTION BECAUSE IT
MERELY FOLLOWED THE RULE ON PRE-TRIAL AND DECIDED THE CASE ON THE
BASIS OF THE FACTS STIPULATED IN THE PRE-TRIAL;
3. THE FACTS AS AGREE (SIC) BY THE PROSECUTION AND
RESPONDENT DUMLAO IN THEIR PRE-TRIAL STIPULATION AND AS APPROVED
BY THE SANDIGANBAYAN SHOWED THAT HE DID NOT COMMIT ANY CRIME;
AND

4. CONTINUALLY PROSECUTING DUMLAO, TO THE EXCLUSION OF

OTHER GSIS TRUSTEES, UNDER THE CIRCUMSTANCES OBTAINING,
CONSTITUTES UNFAIR DISCRIMINATION AND VIOLATION OF HIS
CONSTITUTIONAL RIGHT TO EQUAL PROTECTION OF THE LAW. 1 0 IcDCaT

Petitioner argues it was denied its right to due process when the court a quo
dismissed the case against respondent Dumlao after pre-trial and before it could present
its witnesses and formally offer its exhibits. The court a quo deprived it of the opportunity
to prove its case — that the Resolution dated 23 April 1982 was passed by the GSIS Board
of Trustees and that the Lease-Purchase Agreement was grossly and manifestly
disadvantageous to the government.
Respondent Dumlao was charged, he being one of the members of the GSIS Board
of Trustees who allegedly approved the lease-purchase of the subject GSIS properties
consisting of three parcels of land with an area of 821 square meters, together with a ve-
storey building, in favor of respondent La'o, which lease-purchase agreement was deemed
by the Office of the Ombudsman to be grossly disadvantageous to the government.
A review of the Motion to Dismiss/Quash led by respondent Dumlao reveals that
the ground he invoked was that "the facts charged do not constitute an offense". He
contends that the alleged approved Board Resolution was not approved by the GSIS Board
of Trustees, contrary to the allegation in the information. Since the signatures of four out
of the seven members of the board did not appear in the minutes of the meeting held on
23 April 1982, there was no quorum present or no majority that approved the supposed
resolution. This being the case, he asserts that there was no resolution adopted by the
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 GSIS Board of Trustees approving the sale of the subject properties to respondent La'o.
The Sandiganbayan, basing its resolution on the Pre-trial Stipulation entered into by
the prosecution and respondent Dumlao, dismissed the case against the latter, since it
found that the GSIS Board of Trustees failed to approve or validly pass the Lease-
Purchase Agreement, because only three out of the seven members of the Board signed
the minutes of the meeting held on 23 April 1982. It explained that, "no amount of evidence
can change the fact that the Resolution dated April 23, 1982 was not validly passed by the
Board of Trustees of GSIS since it was only signed by three members of the Board. Thus, it
never had the force and effect of a valid resolution and did not in effect approve the Lease
and Purchase Agreement subject matter hereof. Therefore, the prosecution has no cause
of action against herein movant-accused Hermenegildo C. Dumlao".
The ground raised by respondent Dumlao in his Motion to Quash/Dismiss is that the
facts charged do not constitute an offense. The fundamental test in determining the
su ciency of the material averments of an information is whether the facts alleged
therein, which are hypothetically admitted, would establish the essentials elements of the
crime de ned by law. Evidence aliunde, or matters extrinsic of the Information, are not be
considered. 1 1
The elements of the crime under Section 3 (g) of Republic Act No. 3019 are as
follows: (1) that the accused is a public o cer; (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 2
After examining the information, we nd that the facts alleged therein, if
hypothetically admitted, will prove all the elements of Section 3 (g) as against respondent
Dumlao.
It can be gathered from the resolution of the Sandiganbayan that it did consider the
ground invoked by Dumlao (that the facts charged do not constitute an offense);
otherwise, it could have denied respondent Dumlao's motion. From the reasoning given by
the Sandiganbayan, it is clear that it dismissed the case because of insu ciency of
evidence.
Insu ciency of evidence is not one of the grounds of a Motion to Quash. The
grounds, as enumerated in Section 3, Rule 117 of the Revised Rules of Criminal Procedure,
are as follows:
(a) That the facts charged do not constitute an offense;

(b) That the court trying the case has no jurisdiction over the offense charged;
(c) That the court trying the case has no jurisdiction over the person of the
accused; SHEIDC

(d) That the officer who filed the information had no authority to do so;
(e) That it does not conform substantially to the prescribed form;
(f) That more than one offense is charged except when a single punishment
for various offenses is prescribed by law;
(g) That the criminal action or liability has been extinguished;
(h) That it contains averments which, if true, would constitute a legal excuse
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 or justification; and

(i) That the accused has been previously convicted or acquitted of the
offense charged, or the case against him was dismissed or otherwise
terminated without his express consent.

Insu ciency of evidence is a ground for dismissal of an action only after the
prosecution rests its case. Section 23, Rule 119 of the Revised Rules of Criminal Procedure
provides:
Sec. 23. Demurrer to evidence. — After the prosecution rests its case,
the court may dismiss the action on the ground of insu ciency of evidence (1)
on its own initiative after giving the prosecution the opportunity to be heard or (2)
upon demurrer to evidence filed by the accused with or without leave of court.

In the case under consideration, the Sandiganbayan dismissed the case against
respondent for insu ciency of evidence, even without giving the prosecution the
opportunity to present its evidence. In so doing, it violated the prosecution's right to due
process. It deprived the prosecution of its opportunity to prosecute its case and to prove
the accused's culpability. aETAHD

It was therefore erroneous for the Sandiganbayan to dismiss the case under the
premises. Not only did it not consider the ground invoked by respondent Dumlao; it even
dismissed the case on a ground not raised by him, and not at the appropriate time. The
dismissal was thus without basis and untimely.
On the second issue raised by petitioner, it maintains that the Sandiganbayan erred
in equating, or confusing, the minutes of the meeting of 23 April 1982 with Resolution No.
326, which allegedly approved the lease-purchase agreement on the GSIS properties,
entered into with respondent La'o. It argues that the Sandiganbayan incorrectly ruled that
the Resolution dated 23 April 1982 regarding the lease-purchase of the GSIS properties
was not approved, because only three out of the seven members of the GSIS Board of
Trustees signed the minutes of the meeting of 23 April 1982. HSaIDc

We agree with petitioner that the Sandiganbayan erred in equating the minutes of
the meeting with the supposed resolution of the GSIS Board of Trustees. A resolution is
distinct and different from the minutes of the meeting. A board resolution is a formal
action by a corporate board of directors or other corporate body authorizing a particular
act, transaction, or appointment. 1 3 It is ordinarily special and limited in its operation,
applying usually to some single speci c act or affair of the corporation; or to some
speci c person, situation or occasion. 1 4 On the other hand, minutes are a brief statement
not only of what transpired at a meeting, usually of stockholders/members or
directors/trustees, but also at a meeting of an executive committee. The minutes are
usually kept in a book specially designed for that purpose, but they may also be kept in the
form of memoranda or in any other manner in which they can be identi ed as minutes of a
meeting. 1 5
The Sandiganbayan concluded that since only three members out of seven signed
the minutes of the meeting of 23 April 1982, the resolution approving the Lease-Purchase
Agreement was not passed by the GSIS Board of Trustees. Such conclusion is erroneous.
The non-signing by the majority of the members of the GSIS Board of Trustees of the said
minutes does not necessarily mean that the supposed resolution was not approved by the
board. The signing of the minutes by all the members of the board is not required. There is
no provision in the Corporation Code of the Philippines 1 6 that requires that the minutes of
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 the meeting should be signed by all the members of the board.
The proper custodian of the books, minutes and o cial records of a corporation is
usually the corporate secretary. Being the custodian of corporate records, the corporate
secretary has the duty to record and prepare the minutes of the meeting. The signature of
the corporate secretary gives the minutes of the meeting probative value and credibility. 1 7
In this case, Antonio Eduardo B. Nachura, 1 8 Deputy Corporate Secretary, recorded,
prepared and certi ed the correctness of the minutes of the meeting of 23 April 1982; and
the same was con rmed by Leonilo M. Ocampo, Chairman of the GSIS Board of Trustees.
Said minutes contained the statement that the board approved the sale of the properties,
subject matter of this case, to respondent La'o.
The minutes of the meeting of 23 April 1982 were prepared by the Deputy Corporate
Secretary of the GSIS Board of Trustees. Having been made by a public o cer, the
minutes carry the presumption of regularity in the performance of his functions and duties.
Moreover, the entries contained in the minutes are prima facie evidence of what actually
took place during the meeting, pursuant to Section 44, Rule 130 of the Revised Rule on
Evidence. 1 9 This being the case, the Sandiganbayan erred in dismissing the case, because
there was evidence, at that time, when it dismissed the case against respondent Dumlao.
The dismissal by the lower court of the case against respondent Dumlao was indeed
premature. It should have given the prosecution the opportunity to fully present its case
and to establish reasonable doubt on the alleged approval by the GSIS Board of Trustees
of the lease-purchase of the GSIS properties.
Petitioner likewise faults the Sandiganbayan for archiving the case against
respondent La'o, arguing that since he had already been arraigned, it should have ordered
the prosecution to adduce evidence against him.
We agree. However, said issue has already been mooted by the death of respondent
La'o. 2 0 The death of an accused prior to nal judgment terminates his criminal as well as
civil liability based solely thereon. 2 1 Accordingly, the case against respondent La'o was
dismissed. 2 2
In support of the dismissal of the case against him, respondent Dumlao contends
that to give due course to the Ombudsman's petition would place him in double jeopardy,
in violation of his constitutional rights. Respondent Dumlao asserts that all the elements of
double jeopardy are present in the case at bar. Citing Heirs of Tito Rillorta v. Firme , 2 3 he
added: "[A]ssuming arguendo that the Sandiganbayan committed an error, whatever error
may have been committed by the Sandiganbayan was merely an error of judgment and not
of jurisdiction. It did not affect the intrinsic validity of the decision. This is the kind of error
that can no longer be recti ed on appeal by the prosecution, no matter how obvious the
error may be".
To raise the defense of double jeopardy, three requisites must be present: (1) a rst
jeopardy must have attached prior to the second; (2) the rst jeopardy must have been
validly terminated; and (3) the second jeopardy must be for the same offense as that in the
rst. 2 4 The rst jeopardy attaches attaches only (1) upon a valid indictment; (2) before a
competent court; (3) after arraignment; (4) when a valid plea has been entered; and (5)
when the defendant was convicted or acquitted, or the case was dismissed or otherwise
terminated without the express consent of the accused. 2 5
We do not agree. In the instant case, double jeopardy has not yet set in. The rst
jeopardy has not yet attached. There is no question that four of the ve elements of legal
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 jeopardy are present. However, we nd the last element — valid conviction, acquittal,
dismissal or termination of the case — wanting. As previously discussed, the
Sandiganbayan violated the prosecution's right to due process. The prosecution was
deprived of its opportunity to prosecute its case and to prove the accused's culpability.
The dismissal was made in a capricious and whimsical manner. The trial court dismissed
the case on a ground not invoked by the respondent. The Sandiganbayan dismissed the
case for insu ciency of evidence, while the ground invoked by the respondent was that
the facts charged did not constitute an offense. The dismissal was clearly premature,
because any dismissal based on insu ciency of evidence may only be made after the
prosecution rests its case and not at any time before then. 2 6 A purely capricious
dismissal of an information deprives the State of a fair opportunity to prosecute and
convict. It denies the prosecution a day in court. It is void and cannot be the basis of
double jeopardy. 2 7 TIESCA

The cardinal precept is that where there is a violation of basic constitutional rights,
courts are ousted of their jurisdiction. Where the denial of the fundamental right to due
process is apparent, a decision in disregard of the right is void for lack of jurisdiction. 2 8 In
the instant case, there was no error of judgment but a denial of due process
resulting in loss of jurisdiction . Respondent Dumlao would not be placed in double
jeopardy because, from the very beginning, the Sandiganbayan had acted without
jurisdiction. Precisely, any ruling issued without jurisdiction is, in legal contemplation,
necessarily null and void and does not exist. 2 9 Otherwise put, the dismissal of the case
below was invalid for lack of a fundamental prerequisite, that is, due process. In rendering
the judgment of dismissal, the trial court acted without or in excess of jurisdiction, for a
judgment which is void for lack of due process is equivalent to excess or lack of
jurisdiction. 3 0 This being the case, the prosecution is allowed to appeal because it was
not given its day in court.
As heretofore explained, the Sandiganbayan gravely abused its discretion amounting
to lack of jurisdiction when it dismissed the case against respondent Dumlao based only
on the stipulations made by the parties during pre-trial. The erroneous equation of the
number of members who signed the minutes of the meeting with the number of members
who approved the alleged resolution necessarily led to the Sandiganbayan's faulty
conclusion that there was no evidence showing that the GSIS Board of Trustees approved
the alleged Lease-Purchase Agreement. As we have said, the minutes issued by the Depute
Corporate Secretary were enough, at that time, to set the case for trial and to allow the
prosecution to prove its case and to present all its witnesses and evidence. cSIHCA

Respondent Dumlao claims that the GSIS has not been prejudiced because it still
owns the properties subject matter of this case. This Court cannot rule on this claim, the
same being a factual issue and a defense he is raising. The appreciation of this claim is not
proper in this forum and is better left to the trial court, since the Supreme Court is not a
trier of facts. 3 1
Respondent Dumlao maintains he was charged with conspiring with the other GSIS
Board Members in approving the Lease-Purchase Agreement. However, of the seven
members, two died, two were acquitted and the other two were not charged. He was left
alone. He argues that since a conspiracy requires two or more persons agreeing to
commit a crime, he can no longer be charged because he was left alone to face a charge of
conspiracy.
His assumption that he can no longer be charged because he was left alone — since
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 the co-conspirators have either died, have been acquitted or were not charged — is wrong.
A conspiracy is in its nature a joint offense. One person cannot conspire alone. The crime
depends upon the joint act or intent of two or more person. Yet, it does not follow that one
person cannot be convicted of conspiracy. As long as the acquittal or death of a co-
conspirator does not remove the basis of a charge of conspiracy, one defendant may be
found guilty of the offense. 3 2 In the case at bar, the absence or presence of conspiracy is
again factual in nature and involves evidentiary matters. The same is better left ventilated
before the trial court during trial, where the parties can adduce evidence to prove or
disprove its presence.
Lastly, respondent Dumlao submits that his prosecution, to the exclusion of others,
constitutes unfair discrimination and violates his constitutional right to equal protection of
the law. He says that the dismissal of the case against his co-accused Canlas and Clave
were not appealed by the prosecution; and the two government o cials who signed the
Lease-Purchase Agreement, and the two other members (Ocampo and Morales) of the
GSIS Board of Trustees who signed the minutes were not charged.
We are not convinced that respondent Dumlao was unfairly discriminated against
and his constitutional right to equal protection violated. It must be remembered that the
manner in which the prosecution of the case is handled is within the sound discretion of
the prosecutor, and the non-inclusion of other guilty persons is irrelevant to the case
against the accused. 3 3 We nd that there was no clear and intentional discrimination in
charging respondent Dumlao. A discriminatory purpose is never presumed. 3 4 It must be
remembered that it was not solely respondent who was charged, but also ve of the seven
board members. If, indeed, there were discrimination, respondent Dumlao alone could have
been charged. But this was not the case. Further, the fact that the dismissal of the case
against his co-accused Canlas and Clave was not appealed is not su cient to cry
discrimination. This is likewise true for the non-inclusion of the two government o cials
who signed the Lease-Purchase Agreement and the other two board members. Mere
speculation, unsupported by convincing evidence, cannot establish discrimination on the
part of the prosecution and the denial to respondent of the equal protection of the laws. cAIDEa

In Santos v. People, 3 5 citing People v. Dela Piedra, 3 6 the Court explained:

The prosecution of one guilty person while others equally guilty are not
prosecuted, however, is not, by itself, a denial of the equal protection of the laws.
Where the o cial action purports to be in conformity to the statutory
classi cation, an erroneous or mistaken performance of the statutory duty,
although a violation of the statute, is not without more a denial of the equal
protection of the laws. The unlawful administration by o cers of a statute fair on
its face, resulting in its unequal application to those who are entitled to be treated
alike, is not a denial of equal protection unless there is shown to be present in it
an element of intentional or purposeful discrimination. This may appear on the
face of the action taken with respect to a particular class or person, or it may only
be shown by extrinsic evidence showing a discriminatory design over another not
to be inferred from the action itself. But a discriminatory purpose is not
presumed, there must be a showing of "clear and intentional
discrimination" . Appellant has failed to show that, in charging appellant in
court, that there was a "clear and intentional discrimination" on the part of the
prosecuting officials.

The discretion of who to prosecute depends on the prosecution's sound

assessment whether the evidence before it can justify a reasonable belief that a
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 person has committed an offense. The presumption is that the prosecuting
o cers regularly performed their duties, and this presumption can be
overcome only by proof to the contrary, not by mere speculation . Indeed,
appellant has not presented any evidence to overcome this presumption. The
mere allegation that appellant, a Cebuana, was charged with the commission of a
crime, while a Zamboangueña, the guilty party in appellant's eyes, was not, is
insu cient to support a conclusion that the prosecution o cers denied appellant
equal protection of the laws. DaTICE

There is also common sense practicality in sustaining appellant's

prosecution.
While all persons accused of crime are to be treated on a basis of
equality before the law, it does not follow that they are to be protected
in the commission of crime . It would be unconscionable, for instance, to
excuse a defendant guilty of murder because others have murdered with
impunity. The remedy for unequal enforcement of the law in such
instances does not lie in the exoneration of the guilty at the expense of
society . . . . Protection of the law will be extended to all persons equally in the
pursuit of their lawful occupations, but no person has the right to demand
protection of the law in the commission of a crime.
Likewise, [i]f the failure of prosecutors to enforce the criminal laws as to
some persons should be converted into a defense for others charged with crime,
the result would be that the trial of the district attorney for nonfeasance would
become an issue in the trial of many persons charged with heinous crimes and
the enforcement of law would suffer a complete breakdown. (Emphases ours.) HcACTE

WHEREFORE, premises considered, the instant petition is GRANTED. The resolution

of the Sandiganbayan in Criminal Case No. 16699 dated 14 July 2005 granting the Motion
to Dismiss/Quash of respondent Hermenegildo C. Dumlao, is hereby REVERSED and SET
ASIDE. The Sandiganbayan is forthwith DIRECTED to set the case for the reception of
evidence for the prosecution.
As to respondent Emilio G. La'o, on account of his demise, the case against him is
DISMISSED.
SO ORDERED.
Carpio *** and Peralta, JJ., concur.
Puno, C.J., * took no part due to acquaintance with party.
Quisumbing, J., ** I dissent. Accused's motion is meritorious. GSIS Resolution invalid,
no cause of action here.

Footnotes

1. Penned by Associate Justice Godofredo L. Legaspi with Associate Justices Efren N. de

la Cruz and Norberto Y. Geraldez, concurring; rollo, pp. 13-19.

2. Id. at 19.
3. Records, Vol. 1, pp. 204-205.

4. Records, Vol. 7, p. 250.

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 Emilio La'o was arraigned on 7 August 1991 (Records, Vol. I, pp. 249-251). The case
against him was dismissed because of his death. SEDaAH

The cases against Roman A. Cruz, Jr. and Fabian C. Ver were likewise dismissed on the
account of their deaths. (Records, Vol. VI, p. 125.)
Aber P. Canlas and Jacobo C. Clave were arraigned on 20 January 2004. (Records, Vol.
VI, pp. 505-506). The cases against them were dismissed on 4 October 2004. (Records,
Vol. VII, pp. 233-241).
5. Id. at 306-311.
6. Id. at 313-315.
7. Id. at 322-327.
8. Rollo, p. 18.
9. Same was filed after this Court granted the Office of the Special Prosecutor's motion for
extension within which to file the petition for review on certiorari. (Rollo, pp. 25-233.)
cSATEH

10. Id. at 259.

11. Go v. Fifth Division, Sandiganbayan, G.R. No. 172602, 13 April 2007, 521 SCRA 270,
291.
12. Dans, Jr. and Marcos v. Sandiganbayan, 349 Phil. 434, 460 (1998).
13. Black's Law Dictionary (Eighth Edition, 2004), p. 1337.

14. Fletcher Cyclopedia Corporations (Permanent Edition), Vol. 8, §4167, p. 625.

15. The Corporation Code of the Philippines Annotated (1994) by Rosario N. Lopez, Vol. 2,
p. 871.

16. Batas Pambansa Blg. 68 which took effect on 1 May 1980.

17. Union of Supervisors (R.B.)-NATU v. Secretary of Labor, 195 Phil. 691, 711 (1981).
18. Now Associate Justice of the Supreme Court.

19. Sec. 44. Entries in official records. — Entries in official records made in the performance
of his duty by a public officer of the Philippines, or by a person in the performance of a
duty specially enjoined by law, are prima facie evidence of the facts therein stated.

20. Certificate of Death of Emilio Gonzalez La'o; rollo, p. 335.

21. Republic v. Desierto, G.R. No. 131966, 31 August 2005, 468 SCRA 458, 469.
22. Rollo, pp. 338-339.
23. G.R. No. 54904, 29 January 1988, 157 SCRA 518.
24. Dimayacyac v. Court of Appeals, G.R. No. 136264, 28 May 2004, 430 SCRA 121, 129.
25. Benares v. Lim, G.R. No. 173421, 14 December 2006, 511 SCRA 100, 107.
26. Section 23, Rule 119, Revised Rules of Criminal Procedure.
27. People v. Gomez, 126 Phil. 640, 645 (1967).
28. People v. Bocar, G.R. No. L-27935, 16 August 1985, 138 SCRA 166, 171.
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 29. People v. Velasco, 394 Phil. 517, 559 (2000).
30. Merciales v. Court of Appeals, 429 Phil. 70, 81 (2002). ADTCaI

31. Francisco, Jr. v. Fernando, G.R. No. 166501, 16 November 2006, 507 SCRA 173, 179.
32. Aquino, The Revised Penal Code (1997 Edition), Vol. 1, p. 125, citing United States v.
Remigio, 37 Phil. 599, 612 (1918).
33. People v. Nazareno, 329 Phil. 16, 20-23 (1996).
34. People v. Dela Piedra, 403 Phil. 31 (2001).
35. G.R. No. 173176, 26 August 2008.

36. Supra note 34 at 54-56.

* Per raffle dated 23 February 2009, Chief Justice Reynato S. Puno was designated to sit
as an additional member in place of Associate Justice Antonio Eduardo B. Nachura. AcICTS

** Per Special Order No. 564 dated 12 February 2009, signed by Chief Justice Reynato S.
Puno, designating Associate Justice Leonardo A. Quisumbing to replace Associate
Justice Consuelo Ynares-Santiago, who is on official leave under the Court's Wellness
Program.

*** Per Special Order No. 568 dated 12 February 2009, signed by Chief Justice Reynato S.
Puno, designating Associate Justice Antonio T. Carpio to replace Associate Justice Ma.
Alicia Austria-Martinez, who is on official leave under the Court's Wellness Program.

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