BENJAMIN H. AQUINO, AS PROVINCIAL FISCAL OF RIZAL, PETITIONER, VS. HON. HERMINIO C. MARIANO, JUDGE OF THE COURT OF FIRST INSTANCE OF RIZAL (BRANCH X), AND LUCIO ADRIANO, JR., RE…

On October 9, 1968, then Rizal Provincial Fiscal Benjamin H. Aquino
filed an information in the then Court of First Instance at Pasig,
Rizal, docketed as Criminal Case No. 18425 and entitled: “The People of
the Philippines vs. Rodolfo Ceñidoza, Jose R. Baricua, Cesario B. Ong,
Lucio Adriano, Jr. and Adriano Castillo,” for estafa thru falsification
of official and/or public documents. Said criminal case, which arose
from the huge expansion in the area after a resurvey and subdivision of a
certain parcel of registered land in Muntinlupa, Rizal, and the
approval by certain officials of the Land Registration Commission of the
corresponding plans and technical descriptions prepared by the surveyor
who resurveyed and subdivided the property, was assigned to the branch
of the then Court of First Instance of Rizal presided by Hon. Pedro
Revilla.

On October 27, 1968, Lucio Adriano, Jr., one of the defendants in said Criminal Case No. 18425, instituted a petition for mandamus
in the then Court of First Instance of Rizal praying for an order
directing Fiscal Aquino to include as defendants in the information
filed by him in Criminal Case No. 18425 (not 18245) – all persons of
whom he found a prima facie case as stated by him in Annex “B”
of his Petition, particularly, Commissioner Antonio Noblejas of the Land
Registration Commission, who, in the meantime, resigned from the
office. The mandamus case, docketed as Civil Case No. 11307,
was assigned to Branch X, presided by herein respondent Judge Herminio
C. Mariano, who, thereafter, rendered a decision, dated March 28, 1969,
granting the petition for mandamus, the dispositive portion of which reads:

“IN VIEW OF ALL THE FOREGOING, decision is hereby rendered in
favor of the petitioner and against the respondent, granting
petitioner’s prayer for the issuance of a Writ of Mandamus,
directing the respondent Benjamin H. Aquino, Provincial Fiscal of Rizal,
to include as accused in the information filed by him in Criminal Case
No. 18425 (not 18245) of this Court, all persons, including Commissioner
Antonio Noblejas, against whom he found a prima facie case as
stated by him in his second indorse­ment dated June 20, 1968 addressed
to the Secretary of Justice, a copy of which is attached to the present
petition as Annex “B” thereof.

“Let the corresponding Writ of Mandamus issue.”

Hence, this petition for review by certiorari praying that the
decision of respondent Court of First Instance be set aside and
declaring that herein petitioner cannot be compelled to include former
Commissioner Antonio Noblejas as one of the accused in Criminal Case No.
18425.

There is merit in the petition.

As stated in the decision sought to be reviewed, herein petitioner
conducted the corresponding preliminary investigation in the case
assigned to him and, in a second indorsement to the then Secretary of
Justice, dated June 20, 1968, he had expressed the view that a strong prima facie
case exists against Commissioner Noblejas and, therefore, recommended
strongly that he be allowed to file the corresponding information
against said commissioner and all other persons whom he found in his
investigation to be criminally liable for the offense complained of.
However, Fiscal Aquino, after a period of more than two months from the
time he made his second indorsement, addressed a memorandum, dated
September 2, 1968, to the then Secretary of Justice stating, among
others, that in view of the offer of Commissioner Noblejas to resign
from office and in the light of the Commissioner’s explanation, he
(herein petitioner) found the responsibility of said commissioner, if
any, to be only administrative in nature. Thus, the information was
filed without including Commissioner Noblejas as one of the accused.

In the light of the foregoing facts, is the proper remedy of private respondent Adriano, Jr., an action for mandamus,
or a simple motion in Criminal Case No. 18425 with prayer for an order
directing Fiscal Aquino to include in the information Commissioner
Antonio Noblejas as one of the defendants therein?

The Revised Rules of Court (Section 3, Rule 65) on Petition for Mandamus
provides that “[when any tribunal, corporation, board, or person
unlawfully neglects the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust, or station, or
unlawfully excludes another from the use and enjoyment of a right or
office to which such other is entitled, and there is no other plain,
speedy and adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper court
alleging the facts with certainty and praying that judgment be rendered
commanding the defendant, immediately or at some other specified time,
to do the act required to be done to protect the rights of the
petitioner, and to pay the damages sustained by the petitioner, by
reason of the wrongful acts of the defendant.” Stated differently, mandamus
is an extraordinary remedy that can be resorted to only in cases of
extreme necessity where the ordinary forms of procedure are powerless to
afford relief where there is no other clear, adequate and speedy
remedy. Before a writ of mandamus may be issued, it is
obligatory upon the petitioner to exhaust all remedies in the ordinary
course of law. He must show that the duty sought to be performed must
be one which the law specifically enjoins as a duty resulting from an
office. (Quintero vs. Martinez, 84 Phil. 496; Perez vs. City Mayor of
Cabanatuan, 3 SCRA 431; Alzate vs. Aldana, 8 SCRA 219; and, Caltex
Filipino Managers and Supervisors Association vs. Court of Industrial
Relations, 23 SCRA 492).

Thus, if appeal or some other equally adequate remedy is still available in the ordinary course of law, the action for mandamus
would be improper. In the case at bar, private respondent Adriano, Jr.
did not request Fiscal Aquino to include in the information
Commissioner Noblejas as one of the accused. Had he done so and the
same was met with a denial, Adriano, Jr. could have appealed to the
Secretary of Justice who may reverse petitioner and designate another to
act for the purpose. That way, the filing of a simple motion with the
Fiscal to include or to amend the information is much more speedy and
adequate than a petition for mandamus. As aptly stated by the Solicitor General in his brief for the petitioner:

“x x x By just presenting the motion, there will be no need of
paying any docket fee and the numbering of another case; there will be
no issuance and service of a summons or of an order equivalent thereto;
there will be no more raffles to determine the sala of the court to
which the case will be assigned; and there will be no pre-trial, all of
which necessarily consume time. At least, there is no prohibition in
the rules against this procedure. After all, a motion is defined as
‘every application for an order not included in a judgment’ (Sec. 1,
Rule 15, of the Revised Rules of Court).

“x x x                x x x                 x x x

“The conclusion is therefore inevitable that the filing of a mere
motion in the criminal case to achieve the same purpose as prayed for in
the petition for mandamus is not only an adequate remedy but even a plainer, speedier, and more adequate remedy in the ordinary course of law than mandamus.

“Another substantial argument in favor of filing only a motion in the criminal case instead of the petition for mandamus
is that it will avoid multiplicity of suits which modern procedure
abhors (3 Moran’s Comments on the Rules of Court, 1963 ed., p. 134)”

Otherwise stated, before filing the present action for mandamus
in the court below, private respondent Adriano, Jr. should have availed
of this administrative remedy and his failure to do so is fatal. To
place his case beyond the pale of this rule, it must be shown that his
case falls – which it did not – within the cases where, in accordance
with this Court’s decisions, the aggrieved party need not exhaust
administrative remedies within his reach in the ordinary course of the
law (Tapales vs. the President and the Board of Regents of the U.P.,
G.R. No. L-17523, March 30, 1963; Mangubat vs. Osmeña, G.R. No. L-12837,
April 30, 1959; Baguio vs. Honorable Jose Rodriguez, G.R. No. L-11078,
May 27, 1959; Pascual vs. Provincial Board, G. R. No. L-11959, October
31, 1959; Marinduque Iron Mines, etc. vs. Secretary of Public Works,
G.R. No. L-15982, May 31, 1963; Alzate vs. Aldaba, G.R. L-14407,
February 29, 1960 and Demaisip vs. Court of Appeals, G. R. No. L-13000,
September 25, 1959).

Neither is there merit in the argument that if a motion is presented
before the trial judge he would be prejudging the case if he should
grant the same because such a resolution will be premised only on a prima facie evidence, while a judgment of conviction must be based on evidence beyond reasonable doubt.

WHEREFORE, the petition is GRANTED and the decision dated March 28, 1969, of respondent judge is SET ASIDE.

SO ORDERED.

Melencio-Herrera, Plana, Gutierrez, Jr., and De la Fuente, JJ., concur.

Teehankee, J., (Chairman), no part.