Sunday, August 4, 2013

Make-or-break plea to Supreme Court by convicted journalist abandoned by lawyer


Make-or-break plea to SC for convicted journalist abandoned by lawyer


The author shares to the readers his arguments on a lost cause of a convicted journalist whose appeal at the Court of Appeals was abandoned by his former lawyer.

The former lawyer did not file an Appellant's Brief, a cause used by the CA in dismissing his appeal.

It turned out, however, that the former lawyer was too old and too ill to write a long pleading such as the appellant's brief.

What further hastened the death of the ill lawyer was that he was in a taxicab when the same smashed into a trailer truck, causing him long months in confinement.

Eventually, the old lawyer succumbed and brought to his grave the lost cause of this journalist convicted of the alleged libel for publishing an article calling then Pagcor Chairman Ephraim Genuino as OUT AND OUT CORRUPT.

The author did his goddam best in this FINAL PLEA to convince the Supreme Court to reinstate the appeal of this journalist.

If you are minded, read the petition below and get deep insights about libel law and how to extricate self from a lost cause.

x-----------------------------------------------------x

 
Republic of the Philippines
Supreme Court 
Manila


LEO VILLAN,
                                                            Petitioner,


            - versus -                                           G.R. No. ___________________


PEOPLE OF THE PHILIPPINES and COURT
OF APPEALS,
                                                            Respondents,
x-------------------------------------------------------x


Petition
for
Certiorari


            Accused-Petitioner LEO VILLAN, by the undersigned collaborating counsel, respectfully files this Petition for Certiorari brought forth against the Resolution of the Court of Appeals denying his Petition for Relief from Judgment and the Resolution by the same Court denying the Motion for Reconsideration filed against the first resolution.


The Timeliness


On 30 July 2013 Leo Villan received a copy of the Resolution of the Court of Appeals dated 22 July 2013.

To prove this fact of receipt, attached hereto as ANNEX “A” is a copy of the Compliance filed before the CA to inform the fact of receipt of a copy of the latest of the two resolutions.

If the date of receipt by Villan is to be considered, the sixtieth (60th) day within which he can file this Petition for Certiorari falls on 28 September 2013.

Thus, the filing of this Petition today, 5 August 2013, is timely.

A copy of the same Resolution dated 22 July 2013 denying the motion for reconsideration is attached hereto as ANNEX “B.”  A copy of the Motion for Reconsideration (MR) is attached hereto as ANNEX “C.”

The said MR was filed against the Resolution of the CA dated 22 July 2013. A copy of this Resolution is attached hereto as ANNEX “D.”

A copy of the Decision of the RTC is attached as ANNEX “E.”


The Reasons for Allowance


            The petitioner resorted to the remedy of Petition for Certiorari because this is the only remedy available under the present circumstances.

            First, it is prohibited by the Rules of Court to file an appeal from the order or resolution denying a petition for relief from judgment.

            Thus, a Petition for Review on Certiorari, which is classed as an appeal, cannot be resorted to as a legal remedy.

            There is also no plain or other speedy or adequate remedy that is available under the ordinary course of law if a petition for relief from judgment is denied.

            Second, the Court of Appeals committed grave abuse of discretion in denying the Petition for Relief from Judgment.

            The Court of Appeals erred on a matter that is supposed to be simple for any lawyer.  Yet, the Court of Appeals maintained its error when given a chance to correct the same through a Motion for Reconsideration.

            In the first resolution, the Court of Appeals dismissed the Petition for Relief upon the reasoning that it should be filed before the court of origin, which is the Manila Regional Trial Court, Branch 26. It then ruled that the filing of the petition for relief with the Court of Appeal was an error of invocation of jurisdiction or venue and ruled that the same should be filed with the court of origin.

            The said petition for relief sought a specific relief from the order of the Court of Appeals dismissing the appeal of accused Villan due to the failure of his former counsel, now deceased, to file the required appellant's brief. 

That order sought to be annulled by means of the petition for relief has already been entered in the books of entry of judgment of the CA. 

So that it is very plain and patent to see that the objective of the petition for relief was for the Court of Appeals to issue an order LIFTING the Entry of Judgment and REINSTATING the appeal.

            In the first resolution of the CA, it denied the petition for relief upon the reason that it should have been filed before the RTC of Manila, the court a quo.  

            The CA clearly erred in its first resolution.

            It missed the fact that accused Villan’s petition for relief was addressed AGAINST THE RESOLUTION OF THE COURT OF APPEALS DISMISSING THE APPEAL and the Resolution that directed the entry of the same order in the Entry of Judgments of the CA.

            A motion for reconsideration was filed by Villan through his lawyer but the CA maintained its stand. It denied the motion for reconsideration.

            Now, the court whose orders are being challenged is the Court of Appeals. In the hierarchy of courts, only the Supreme Court is higher.  In view thereof, this petition must be filed in the Supreme Court.

            Thus, it is very clear that this petition for certiorari against the Court of Appeals be given due course.


The Parties


            The petitioner is LEO D. VILLAN, whose address is 2247 F.B. Harrison St., Pasay City.

            The respondents are the People of the Philippines and the Court of Appeals, particularly the ponente and the division that handled the Petition for Relief of Villan, specifically under CA-G.R. CR No. 30690.

            The People is represented by the Office of the Solicitor General, who can be served notices at 134 Amorsolo St., Legaspi Village, Makati City.

            The Court of Appeals can be served processes at The Court of Appeals, Ma. Orosa St., Manila, attention CA-G.R. CR No. 30690.


The Antecedents


            The Regional Trial Court of Manila, Branch 26, promulgated a decision dated February 20, 2007, finding the accused-petitioner guilty of libel and sentenced him to suffer an imprisonment of six (6) months of arresto mayor as minimum to two (2) years, eleven (11) months and ten (10) days and to pay moral damages in the amount of Five Million Pesos (₱5,000,000.00) and exemplary damages in the amount of Five Million Pesos (₱5,000,000.00).

            A copy of the Decision of the RTC of Manila, Branch 26, is attached hereto as ANNEX “E.”

            The former lawyer of Villan, who was Atty. Romeo Rizal Vicente, filed a notice of appeal and it was granted by the RTC of Manila, Branch 26.

            Subsequently, the Court of Appeals issued a notice to file brief dated 29 January 2008 and it was received by Atty. Vicente on 5 February 2008.

            Atty. Vicente did not file any appellant’s brief.

            As a result, the Court of Appeals issued a Resolution dated 22 May 2008 dismissing the appeal for failure to file an appellant’s brief, declaring that the same appeal has been abandoned.  The same Resolution was received by Atty. Vicente on 28 May 2008.

            Atty. Vicente did not file any motion for reconsideration from the 22 May 2008 resolution.

            Consequently, the 22 May 2008 resolution was entered into the books of Entry of Judgment.

            Accused Villan was never informed by Atty. Vicente of all that happened with respect to the appeal.

            By that time, accused-petitioner Villan was already suffering from chronic high blood pressure until one day he was rushed to Manila Doctors Hospital on 7 April 2009 due to stroke. 

            Villan was confined at that hospital until 24 April 2009. 

Then he had to take more than a year of rest for him to finally recover from that illness.

            The fact of his hospitalization was proven by Annex “A” of the Supplemental Petition for Relief that he filed now taken as integral part of this petition.

            Accused-petitioner Villan learned of the failure to file an appellant’s brief and the dismissal of his appeal when he learned of the issuance of a warrant for his arrest on 5 November 2012.

            Immediately, Villan filed a Petition for Relief From Judgment and filed a motion to lift the warrant on account of the Petition for Relief that was filed. It was granted by the Manila RTC, Branch 26.

            Thereafter, he filed a Supplemental Petition for Relief From Judgment.

            Briefly, he argued in those petitions for relief from judgment that the 22 May 2008 Resolution dismissing his appeal and the Entry of Judgment be set aside because it was a clear gross negligence on the part of his former lawyer, Atty. Romeo Rizal Vicente. 

Villan also argued that on his part, the accused-petitioner’s negligence was excusable considering his health condition for him to make verifications with his former lawyer, and considering further that his lawyer was actually a dying man who no longer had the capacity to write long pleadings such as appellant’s briefs.

Actually, although not submitted to this case as part of the petition for relief from judgment is the fact that Atty. Vicente was involved in a vehicular accident.   So that what hastened further the death of Atty. Vicente was the fact that the taxicab he was riding smashed onto a trailer truck, crumpling beyond repair the said cab.  A copy of the police investigation report about the accident is attached hereto as ANNEX “F” series.  Copies of the photographs of the accident are attached hereto as ANNEX “G” series.

In its Resolution denying the petition for relief from judgment, the Court of Appeals virtually acknowledged the existence of gross negligence on the part of Atty. Vicente and the excusable negligence on the part of Villan.

However, the Court of Appeals dismissed the petition upon the reason that the petition should have been filed before the RTC of Manila, Branch 26, and not on the CA.

Obviously, the Court of Appeals was not correct even if it cited Section 1 of Rule 38 to support its resolution to deny the petition for relief from judgment.

Section of the said Rule, states:

Section 1.        Petition for relief from judgment, order, or other proceedings. — When a judgment or final order is entered, or any other proceeding is thereafter taken against a party in any court through fraud, accident, mistake, or excusable negligence, he may file a petition in such court and in the same case praying that the judgment, order or proceeding be set aside. (2a)

            It is obvious from the resolution that in the interpretation of the CA, it meant “such court” as referring to the RTC of Manila, Branch 26.

            The accused filed a motion for reconsideration and the CA issued a one-sentence resolution denying the MR.

            Thus, this Petition for Certiorari is filed.


The Issue


            There is only one issue here, whether or not the Court of Appeals committed grave abuse of discretion amounting to lack or excess of jurisdiction.


The Discussions


            It is very obvious that the Court of Appeals committed a mistake that is too elementary to many lawyers.  Yet, the CA committed the same as if with gusto.  This is because despite the chance to correct the error when the accused-petitioner filed his motion for reconsideration, yet the CA still erred even as it flaunted that it thoroughly reexamined the arguments in the MR.
           
            It is ordinary to understand Rule 38 that the petition shall be filed in the court that issued the order or resolution or decision sought to be set aside.

            With these, there must be no issue that the petition must be filed with the CA and not with the RTC.

            For one, how can the RTC set aside the resolution of the higher court?

In this case, the relief sought is the setting aside of the 22 May 2008 resolution of the CA dismissing the appeal of Villan for failure of his lawyer to file the appellant’s brief.  It was also clear that the same petition was seeking the setting aside of the Entry of Judgment the CA entered in its books.

            Yet, the CA denied the petition for relief and dismissed the MR taken from such denial.

            Hence, it needs no more exhaustive argument to stress that the CA committed grave abuse of discretion.

            Now, it is also very clear that the CA did not debunk the arguments of the petitioner-accused that his deceased lawyer, Atty. Romeo Rizal Vicente, committed negligence in the degree of gross.

            That is, although it is a fact that Atty. Vicente was a septuagenarian who was already sickly and who was unfortunate to have ridden the taxicab that smashed into a trailer truck that caused him very serious physical injuries.

            With that very advanced age and illness, it was no longer expected for a lawyer like him to write a long and exhaustive pleading such as an appellant’s brief.

            The CA also did not reject the argument that Villan’s negligence in not following up his appeal with Atty. Vicente, if ever there was any, was excusable.

            So that the silence by the CA over the arguments stressing that the lawyer of Villan committed gross negligence so that he cannot be bound thereby can now be presumed as approval of the existence of gross negligence on the part of the lawyer and at the same time the excusable negligence on the part of the accused-petitioner.

            The merits of the case for acquittal of accused-petitioner Villan are also overwhelming to be ignored.

            Hence, the demands of the interest of justice alone are so compelling to set aside the Rules of Court in order to pave the way for justice to reign supreme.

            Consider the following:


1.     The RTC displayed extreme animosity against the accused-petitioner because it imposed the penalty of imprisonment,  sentencing the accused-petitioner by TAKING the MAXIMUM of arresto mayor as the minimum and TAKING THE MAXIMUM OF THE IMPOSABLE MAXIMUM PERIOD OF THE PRISION CORRECCIONAL MEDIUM, without taking into account that the accused voluntarily surrendered to face trial;

2.     Sentencing an accused to imprisonment term longer than what is allowed by law is DOUBLE JEOPARDY – the accused was jeopardized the first time for the legal term of imprisonment and if the accused is still imprisoned for the same crime then it is the second jeopardy;

3.     The crux of the case is whether or not ACTUAL MALICE existed because the offended party is a public figure for being a public officer, as chairman of Philippine Amusement Gaming Corporation (Pagcor) – yet the accuser did not present evidence to show that the factual allegations in the OPEN LETTER PUBLISHED BY THE ACCUSED THAT SERVED AS THE BASES OF THE OPINIONS WERE FALSE and  DID NOT PRESENT PROOF THAT THE ACCUSED KNEW OF THE FALSITY AT THE TIME OF THE PUBLICATION;

4.     The RTC of Manila, Branch 26, associated ACTUAL MALICE to the motive of gain WHEN IT IS NOT INCLUDED IN THE DEFINITION OF ACTUAL MALICE, which has been defined as knowingly publishing a false imputation or recklessly disregarding the stupidity of the imputation to be believed in as true at first impression;

5.     It is very clear that NO MATTER THE ILL MOTIVE, actual malice is based on the falsity of the facts used as the imputations against the offended party;

6.     The information of libel that was read on the accused-petitioner during the arraignment DOES NOT CONTAIN THE STATEMENTS SAYING THE PLACE OF OFFICE OF THE OFFENDED PARTY or THE STATEMENTS THAT STATE THE PLACE OF PRINTING AND PLACE OF FIRST PUBLICATION OF THE NEWSPAPER BRIGADA NEWS – THIS A VIOLATION OF THE AGBAYANI VS SAYO DOCTRINE, G.R. No. L-47880, April 30, 1979, that commands that libel information that does not contain such jurisdictional facts must be quashed;

7.     The application of the ACTUAL MALICE DOCTRINE makes Libel Law unconstitutional in so far as public figures as offended parties are concerned as worded in the Revised Penal Code that presumes all imputations as malicious when malice must be based on the existence of falsity in the imputations used;

8.     The RTC of Manila, Branch 26, erred in awarding moral damage of ₱5,000,000 and exemplary damage of ₱5,000,000 when NO FILING FEES were paid by the offended party;

9.     Even if the filing fees were paid, the awards are extremely excessive;

10.             Newly-discovered evidence constituted by the OMBUDSMAN’S INDICTMENT OF THE OFFENDED PARTY, EPHRAIM GENUINO, AND HIS WITNESS IN THIS CASE, EDWARD KING JR., IN MULTIPLE GRAFT AND CORRUPTION ACTS reasonably proved the truth in the factual allegations in the OPEN LETTER that was published by the accused-petitioner in Brigada News and which open letter is the very subject matter of the libel complaint here – a news report of Inquirer about Genuino and Edward King Jr. can be read at this website, http://newsinfo.inquirer.net/420595/anti-graft-court-issues-travel-ban-on-genuino-6-in-pagcor-fund-malversation-case; and

11.             Supreme Court Circular 08-2008 advises imposition of fine only.

With the narrated factors above that will be enough to produce acquittal, it behoved the Court of Appeals to grant the Petition for Relief.  And the fact that it did not do so is an act no less than grave abuse of discretion.

            With all these compelling circumstances, the Supreme Court cannot close it eyes and pretend that the Court of Appeals did not commit grave abuse of discretion tantamount to lack or excess of jurisdiction.

            Clearly, the Court of Appeals abdicated from its duty to apply the law and be an instrument of justice.

            To the contrary, the CA became an effective tool of injustice.

            Let item No. 1 above be considered.

            As to the imprisonment, Article 355 of the Revised Penal Code says as follows:

Art. 355. Libel means by writings or similar means. — A libel committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.

            First, it is a hornbook rule that all imprisonment terms under the Revised Penal Code must be divided into three periods.  This is mandatory to know how long is the minimum, how long is the medium, and how long is the maximum period.

            Under the RPC, prision correccional has the maximum of six (6) years.

            When Article 355 says that the convict of libel must be punished with prision correccional in its minimum and maximum periods, there is therefore an obligation on the part of the court to know what are the periods for minimum, medium and maximum in order to know the range of minimum and medium.

            If we were to compute, the period of imprisonment for the whole of prision correccional that is six (6) years must first be subtracted with the punishment below it that is arresto mayor that has the maximum of six (6) months before dividing the remaining balance of the period.

            Let six (6) years be converted to months and that is 6 years x 12 months a year = 72 months.

            Then subtract 6 months of arresto mayor and it leaves us with 66 months.

            Then divide 66 months by three (3) because there is a need to divide them into three periods.  And this gives the answer: 22 = 66 divided by 3.

            So that the range of the minimum of prision correccional proper is from six (6) months and one (1) day up to twenty-eight (28) months.

            Expressing this by using the number of years as converted, the minimum proper of prision correccional per se is from six (6) months and one (1) day up to two (2) years and 4 months.

            Consequently, the medium proper of prision correccional ranges from two (2) years and four (4) months and one (1) day up to fifty (50) months (from 6 months of arresto mayor plus 44 months).

Expressing this using the number of years, the medium proper of prision correccional is from Two (2) Years and Four (4) months and One (1) day up to Four (4) Years and Two (2) months.

            The range within the maximum shall not now be considered because the law on libel punishes up to the maximum of medium period of prision correccional.  This means that only fifty (50) months shall be considered.

            Now, the RPC requires that the whole range of penalty provided by law for a particular crime must be divided into three periods to determine the new minimum, the new medium, and the new maximum.

            Because the period to be considered to get the new three periods (minimum, medium, maximum) is Forty-Four (44) months, let 44 months be divided by 3 and we get 14.67 months. This means that the interval of each period is 14.67 or 14 and two-thirds (2/3) months.  If the legal meaning of a month under the Civil Code is 30 days, two-thirds is equivalent to twenty (20) days.

With this, it is now understood that the new range of minimum shall be from “Six (6) Months and One (1) Day” up to the total periods of “six (6) months of arresto mayor plus 14.67 months (or plus 14 months plus 20 days)” and the total is 20.67 months (or 20 months plus 20 days).  If we express the total in years and months and days, we deduct twelve (12) months from 20.67 months to establish one year and be left with the balance of “eight (8) months and twenty (20) days” considering that 0.67 month is equal to twenty (20) days.

Expressing the terms with years, the new minimum is: “SIX (6) MONTHS AND ONE (1) DAY” up to “ONE (1) YEAR AND EIGHT (8) MONTHS AND TWENTY (20) DAYS.”

            The new medium shall start from ONE (1) YEAR, EIGHT (8) MONTHS and TWENTY-ONE (21) DAYS.”

To know the end day of the new medium, the interval period of 14.67 months must be added.

So we get the END DAY of the new medium as this:  14.67 months plus 20.67 months and we get the total as 35.33 months or 35 and 1/3 months.

Converting into an expression of years, months and days, the maximum of the new medium is: TWO (2) YEARS and ELEVEN (11) MONTHS and TEN (10) DAYS.

            Now, the RPC says that whenever there is NO AGGRAVATING CIRCUMSTANCE, THE PENALTY THAT MUST BE IMPOSED SHALL BE ANYWHERE IN THE MEDIUM RANGE.  And the medium here is the new medium as computed above.

            But if there is at least one mitigating circumstance, the penalty shall be imposed in the minimum. And the minimum referred to here is the NEW MINIMUM AS COMPUTED.

            For clarity and convenience, Article 64 of the Revised Penal Code is hereby quoted, to wit:

Art. 64. Rules for the application of penalties which contain three periods. — In cases in which the penalties prescribed by law contain three periods, whether it be a single divisible penalty or composed of three different penalties, each one of which forms a period in accordance with the provisions of Articles 76 and 77, the court shall observe for the application of the penalty the following rules, according to whether there are or are not mitigating or aggravating circumstances:

xxx          xxx          xxx

2. When only a mitigating circumstances is present in the commission of the act, they shall impose the penalty in its minimum period.

xxx          xxx          xxx

            So that it is very clear that the only legal maximum imprisonment to be meted out to the accused-petitioner, assuming he is guilty, should be ONE (1) YEAR and EIGHT (8) MONTHS and TWENTY (20) DAYS, considering that he surrendered to the authority of the Court to face trial.

In this case, the decision of the RTC of Manila imposed the maximum of Two (2) years, Eleven (11) months and Ten (10) days when there is no aggravating circumstance.  ERRONEOUS! 

            Even if the maximum of the new minimum is to be punished on accused-petitioner Villan, his maximum imprisonment should only be ONE (1) YEAR and EIGHT (8) MONTHS and TWENTY (20) DAYS.

            Applying now the Indeterminate Sentence Law, or Act No. 4103 as amended, the minimum of the sentence shall be taken anywhere from the penalty next lower in degree than the imposable penalty.

            In this case, applying rules of graduation of penalties, the penalty next lower in degree shall be arresto mayor medium to arresto mayor maximum.

            While the RTC of Manila chose Six (6) Months as the minimum as it is within its discretion, THIS CHOICE REFLECTS A PROOF THAT THE RTC WAS HOSTILE TO THE ACCUSED-PETITIONER.

            Considering the mitigating circumstance of voluntary surrender to the court by means of posting the bond required, the RTC should have chosen the arresto mayor medium.

            Very clear.  The sentence imposed is beyond what is allowed by law. There is now a VIOLATION AGAINST THE DOUBLE JEOPARDY RULE. The first jeopardy attaches to the imprisonment period that is what is required by the law.  The second jeopardy attaches when the same accused is imprisoned further for the same offense.          

            As to actual malice issue, a reading of the Decision of the RTC clearly shows that the RTC did not resolve whether the factual allegations stated in the OPEN LETTER were false or true.  It only focused on its findings that the accused-petitioner met with officials of the offended party at Hyatt Hotel. From here, the RTC obviously wanted to rule that the accused-petitioner only manifested the motive to extort from Ephraim Genuino.

            What is important is that the RTC did not understand the meaning of actual malice.

Also important is the RTC decision did not rule on the existence of the fact that the allegations in the same Open Letter were false.  It also did not rule whether the accused-petitioner knew those falsities in the Open Letter.

            So that if the accused-petitioner did not know whether the imputations were false, it can never be said that he knowingly published those imputations.

            Moreover, the RTC did not rule on whether those facts alleged in the Open Letter were of the nature and character that it was stupid to believe in them.

            To the contrary, the RTC can take judicial notice that the regime of Gloria Macapagal-Arroyo was oozing with graft and corrupt accusations from the citizens, so that it is reasonable to believe that her minions in various sensitive positions were also corrupt.

            The RTC cannot take a blind eye on the Hello Garci tapes, the series of impeachment complaints filed against Gloria and many others.  The RTC promulgated the decision on 20 February 2007, when all those shenanigans in the Arroyo administration had been put on official records by various complaints.

            So that there was no circumstance that would obligate the accused-petitioner into making further cross-checking of the facts alleged in the same Open Letter.

            One such decisions of the Supreme Court defining actual malice is found in Guingguing vs Court of Appeals, G.R. No. 128959, September 30, 2005.

            It is sickening to see RTCs that do not know the meaning of actual malice.

            Further, it is now a hornbook rule that libel suits filed by public figures as offended parties must inquire into actual malice.  So that it is succinct to argue that the present libel law is unconstitutional in so far as public figures as concerned as libel complainants.

            The RTC also blatantly committed the error of awarding damage awards when the libel complainant did not even pay filing fees.  To know whether a complainant paid for the fees, it can be known from the records of this case and it is obvious there is nothing in there to show that Ephraim Genuino paid for the ₱5,000,000 moral damage award and another ₱5,000,000 for the exemplary damage award.

            Even assuming that Genuino paid for the filing fees that cost about ₱250,000, more or less, still the moral damage award and the exemplary damage award cannot be supported aside from being patently excessive.

            For moral damage to accrue, the plaintiff must show he or she suffered sleepless nights, fears, anxieties and besmirched reputation.  Thereafter, he must show that the act that caused these pains was deliberately done.

            In the instant case, the RTC never attempted to discuss why there was a cause of action for moral damage.

            There was also hardly any evidence to prove that Genuino suffered moral damage.  To the contrary, his own men mentioned in the same Open Letter did not file any complaint against Villan, an indication that they were not damaged morally.

            The RTC also failed to justify with evidence to show that the act of publishing was deliberately down and without any legal justification.  To the contrary, the justifications were very clear: to inform the public of the corrupt activities being done at the Pagcor led then by Genuino.

            And if the intention was clear for public interest, and that there is no doubt that the Open Letter was a public interest, there is no basis to say that the act of publishing the Open Letter is detestable to the community to be followed such that there was a necessity to slap exemplary damage for the public good.

            Even assuming there were justifications to award moral and exemplary damage, still the RTC erred because it is blatantly excessive.

            The offended party, Ephraim Genuino, did not submit proof why he was entitled to that so high a stature to say that as much stature was lost because of the published Open Letter.

            New evidence cropped up to bolster the truth of the factual allegations in the Open Letter. Let alone the Sandiganbayan’s finding of probable cause that Genuino and King are guilty of graft and corruption along with other then high officials of Pagcor.

            These new evidence can be taken of judicial notice because they are of public knowledge, capable of unquestionable demonstration, or matters that the courts ought to know.

            Now, information on libel that was read on the accused-petitioner patently shows LACK OF JURISDICTION of the RTC of Manila.

            The same information did not state where the libel offense was committed.

            Article 360 of the Revised Penal Code is very clear that libel offense is deemed to have committed in the following places:

1.     In the province or city where the libelous item was printed and first published; or

2.     In the province or city where the offended party resided at the time of the commission of libel if the offended party is a private person; or

3.     In the province or city where the offended party held office at the time of the commission of libel if he were a public officer.

Even the staff box of the copy of Brigada News that was presented to the RTC of Manila during the trial showed that its editorial offices were located on FB Harrison St., Pasay City.  Most likely, the printing was done in Pasay City the first distribution or first publication was also done in Pasay City.

While it was stated in the information that Genuino was the chairman of Pagcor, it is not stated there whether he held office at Pagcor’s offices in other sites.  Right now, for instance, Pagcor holds office at Resort World in Nichols Air Base, Pasay City.

In Agbayani vs. Sayo, it is explicitly commanded by the Supreme Court that all informations for libel must:

(a)  state whether the offended party is a private person or a public officer;

(b) state the city or province where offended party was holding office at the time of the commission of libel if he were a public officer;  or

(c)  state the city or province where the offended party resided at the time of the commission of libel if the offended party were a private person.

            And if any libel information does not state so, then the information must be quashed.

            One last word.  The Supreme Court issued Circular 08-2008 advising judges to impose fine only instead of imprisonment in case of conviction for libel.  Even if this is not a law, the fact that it gives substantive right to freedom it is substantially a penal law that is beneficial to the accused, it must be applied retroactively.

            Ergo, it is very clear that ASIDE FROM PATENT GRAVE ABUSE OF DISCRETION COMMITTED BY THE COURT OF APPEALS, there is a weighty compelling reason to justify the setting aside of the Rules of Court if only to give justice another day in court.

            These are matters that NO COURT CAN LOOK A BLIND EYE ON. 

The Prayer

           
            WHEREFORE, it is prayed of the Honorable Supreme Court that the instant Petition for Certiorari be granted and the Court set aside the Resolution of the Court of Appeals dated ____ ______ 2013 and another Resolution of the Court of Appeals dated 22 July 2013 be set aside.  It is also prayed that the Supreme Court reinstate the appeal of the accused-petitioner.

            Other reliefs just and equitable are also prayed for.  Manila, 5 August 2013.
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