Sample Construction Contract

This is a sample HOUSE CONSTRUCTION CONTRACT prepared by our law office. We are sharing it to our readers/followers for legal research purposes.

CONSTRUCTION AGREEMENT

KNOW ALL MEN BY THESE PRESENTS:

This CONSTRUCTION AGREEMENT made and executed this ___th day of ________ 2016 in the City of Xxx by and between:

Spouses xxx and xxx, with residential address at xxx, xxx, xxx, hereinafter referred to as the OWNERS;

-and-

Xxx CONSTRUCTION, a single-proprietorship construction enterprise duly organized and existing under the laws of the Philippines, with office address at xxx xxx, xxx represented by its Proprietor-Manager Engr. Xxx, hereinafter referred to as the CONTRACTOR;

WITNESSETH: -

WHEREAS, the OWNERS, Spouses xxx and xxx, shall construct of two-storey Residential Building with Roofdeck and Penthouse located at xxx, xxx xxx, the same to be funded by a construction/housing loan from a reputable Bank;

WHEREAS, the CONTRACTOR presented and warranted to the OWNERS that it is capable, competent, and a duly registered construction enterprise licensed and authorized by law to construct and to complete the aforementioned Residential Building in  accordance with the plans and specifications hereinafter referred to as Design and Contract Documents;

WHEREAS, on the basis of the foregoing representation and warranty of the CONTRACTOR, the OWNERS accepted the offer of the CONTRACTOR to construct the above-mentioned Residential Building.

NOW, THEREFORE, for and in consideration of the foregoing premises and the covenants and undertakings hereinafter set forth, the parties hereto agree as follows:

ARTICLE 1. DESIGN AND CONTRACT DOCUMENTS. - This Agreement, together with the following Design and Contract Documents, copies of which are attached hereto as Annexes “A” to “D” hereof, as prepared by xxx in his capacity as the LICENSED ENGINEER and MANAGER of the CONTRACTOR shall constitute as the Entire Agreement, to wit:

(a)          Annex “A” - Architectural Plans , consisting of three (3) sheets;

(b)         Annex “B” - Structural Plans, consisting of two (2) sheets;

(c)          Annex “C” - Electrical Plans, consisting of two (2) sheets;  

(d)         Annex “D” - Plumbing Plans, consisting of three (3) sheets.

The DESIGNER/SIGNATORY of the Design and Contract Documents is also the CONTRACTOR in this Agreement.

Any part of the Design and Contract Documents may be changed by the parties to this Agreement to improve, preserve and protect the beauty and strength of the structure.

All changes in the Design and Contract Documents shall be subject to the following conditions:

(a)  The parties to this Agreement shall first conduct a personal conference and consultation to mutually discuss and agree upon the changes proposed by any of the parties hereto;

(b) The DESIGNER/CONTRACROR shall affix the signature of its duly authorized Engineer on the As-Built Plans and

(c) The said changes shall be approved in writing by the OWNERS prior the implementation thereof by the DESIGNER/CONTRACTOR;

The OWNERS shall be formally furnished by the DESIGNER/CONRACTOR with copies of the following documents or records (a) within seven (7) days from the date of the execution of this Agreement or (b) within seven (7) days from the approval thereof by the Local Government of Xxx City or (c) within seven (7) days from the completion, approval and signing of the final official versions thereof by the parties to this Agreement  --  whichever period comes first -- to wit:

(a)             The original copies  or duplicate original copies or certified true copies of  both the PRELIMINARY AND FINAL DESIGN AND CONTRACT DOCUMENTS AND AMENDED VERSIONS THEREOF, if any, duly discussed and approved/signed by the parties to this Agreement prior to the official approval thereof by the City Building Official of the Local Government of xxx City;

(b)            The original copies  or duplicate original copies or certified true copies of  the FINAL DESIGN AND CONTRACT DOCUMENTS duly discussed and approved/signed by the parties to this Agreement and officially filed with, received by, processed, and approved by the City Building Official of the Local Government of xxx City, pursuant to applicable building and other laws;

(c)             The original copies or duplicate original copies or certified true copies of ALL BUILDING AND OTHER INCIDENTAL LICENSES AND PERMITS officially processed, approved, issued and released by the City Building Official and other concerned offices of the Local Government of Xxx City, pursuant to applicable building and other laws;

(d)            The original copy or duplicate original copy or certified true copy of the PRELIMINARY AND FINAL SCOPE OF WORKS AND AMENDED VERSIONS THEREOF, if any, duly discussed, approved and signed by the parties to this Agreement, detailing;

(i)                           the construction-related activities involved,

(ii)                        the time or schedule of commencement and completion of the stipulated works and services,

(iii)                      the final turnover of the Residential Building,

(iv)                      the necessary construction-related charts, graphs, illustrations, and documentations, and

(v)                         all other topics, items and information related to the Construction;

(e)             The original copy or duplicate original copy or certified true copy of the PRELIMINARY AND FINAL BILL OF MATERIALS AND AMENDED VERSIONS THEREOF, if any, duly discussed, approved and signed by the parties to this Agreement; and

(f)              The original copies or duplicate original copies or certified true copies of any and all other relevant materials, documents, records, plans, papers and legal instruments as may be required from time to time by the OWNERS from the CONTRACTOR for the information and reference of the OWNERS.

ARTICLE 2. SCOPE OF WORK. - The CONTRACTOR shall implement the Proposed Construction at xxx, xxx, xxx, xxx., Xxx.

The CONTRACTOR shall:

(a) Furnish all labor, materials, tools and equipment, technical knowhow and supervision therein; and

(b) Perform all the works stipulated and required under this Agreement.

The DESIGNER/CONTRACTOR shall secure the Permits and Licenses (Building Permits, Occupancy Permits and other Incidental Permits) required by the City Building Official and other concerned internal offices of the Local Government of Xxx City at the expense of the OWNERS and subject to the right of the OWNERS to examine the expenses incurred for said purposes and the documentary proofs thereof.

ARTICLE 3. TERMS OF PAYMENT. - Payment for this Contract shall be based on the following:

(a)          Down Payment -  Thirty Percent (30%) of the Total Contract Price, the same to be paid on instalment basis depending on the actual dates of the releases of the construction/housing loan or instalments thereof by the lending Bank;

(b)         Progress Billings - based on Actual Accomplishments, subject to submission by the CONTRACTOR of the true and accurate Accomplishment Reports and subject to confirmatory site inspection by the OWNERS; and

(c)          Retention - Five Percent (5%) of the Total Contract Price to be released upon Turn-Over to the OWNERS of the Finished Project and the Occupancy of the Residential Building by the OWNERS.   

ARTICLE 4. EXCLUSIONS. -  The OWNERS-supplied materials such as Lighting Fixtures, Air Conditioning Units, Water Tank, Fence, WI-FI, CCTV, Cable TV, Telephone, Furniture,  and the like are excluded from the obligations of the DESIGNER/CONTRACTOR under this Agreement.

All Items and/or Materials which are not indicated in the Design, Drawing Plans, or Contract Documents and which are not discussed, approved and signed by the parties to this Agreement shall be excluded from their respective obligations.

ARTICLE 5. CONTRACT AMOUNT. -  The CONTRACT AMOUNT shall be xxx MILLION PESOS (Pxxx, 000, 000.00).

The OWNERS shall pay the CONTRACTOR for the entire performance and supply of the works, labor, services, materials, machinery and equipment stipulated in this Agreement in accordance with the agreed schedule of payment stipulated in the Article 3 of this Agreement.

The CONTRACTOR hereby guarantees and warrants the stability, strength and structural integrity of the subject two (2)-storey Residential Building with Roofdeck and Penthouse within the period mandated by the Civil Code of the Philippines and other applicable building laws, rules and regulations.

The OWNERSs shall not incur any expenses above and beyond the aforementioned agreed contract amount, except for the additional or extra works or changes that may be required and authorized in writing by the OWNERS and consented to in writing by the CONTRACTOR.

ARTICLE 6. DEFECTIVE WORKS AND MATERIALS. – All defective works discovered by the OWNERS in the course of the construction until the date of occupancy shall be promptly made good, repaired, remedied, restored, corrected and rectified by the CONTRACTOR at its expense within seven days from such discovery or within such reasonable period as may be mutually agreed upon by the parties, at the option of the OWNERS.

All unsuitable, sub-standard, and poor-quality construction materials and works shall be rejected by the OWNERS and the CONTRACTOR and shall be promptly made good, remedied, corrected, rectified, and replaced by the CONTRACTOR at its expense, notwithstanding that such works and materials were overlooked by the OWNERS.

If the work or any part thereof shall be found to be not in conformity with the agreed specifications, the CONTRACTOR shall forthwith remove and replace such materials to comply with the agreed specifications.

All materials and workmanship are guaranteed by the CONTRACTOR for a period of six (6) months from the date of the turn-over of the construction project.

As stated in Article 6 of this Agreement, the CONTRACTOR hereby guarantees and warrants the structural stability, strength and integrity of the subject two (2)-storey Residential Building with Roofdeck and Penthouse within the period mandated by the Civil Code of the Philippines and other applicable building laws, rules and regulations.

ARTICLE 7. THIRD PARTY LIABILITY; and CONSTRUCTION ALL RISKS INSURANCE. - The OWNERS shall be held free and harmless from any and all civil and criminal liabilities and from any and all legal, administrative, judicial and extrajudicial claims, demands, suits or actions by the Construction Workers, Staff, Personnel and Agents of the CONTRACTOR, by any and all Third Parties and Entities, whether natural or juridical, and by any and all concerned Local and National Government Agencies arising from, caused by, by reason of, or due to the construction of the subject residential building, such as, but not limited to:

(a)             Salaries, Wages, Allowances and Workers Benefits, as required by applicable labor laws,

(b)            Overtime pays, as required by applicable labor laws,

(c)             Holiday pays, as required by applicable labor laws,

(d)            Service incentive leaves, as required by applicable labor laws,

(e)             Any and all other mandatory and existing leaves mandated and required by applicable labor laws, rules and regulations,

(f)              Thirteenth month pays, as required by applicable labor laws,

(g)            Compensations for Injury or Death of the Construction Workers, Staff, Personnel and Agents of the CONTRACTOR, pursuant to applicable laws, rules and regulations and/or by equity and natural justice,

(h)            Compensations for any and all Injury or Death caused to and sustained by any and all Third Parties or Entities, pursuant to applicable laws, rules and regulations and/or by equity and natural justice,

(i)               Premiums for the coverage of the Construction Workers, Staff, Personnel and Agents of the CONTRACTOR under the Social Security System (SSS), PHILHEALTH, and PAG-IBIG, and other relevant labor legislations, payable by the CONTRACTOR to the Government, pursuant to applicable laws, rules and regulations and/or by equity and natural justice,

(j)               Any and all Income and Other Kinds of Taxes of whatever nature and kind, as well as any and all administrative and regulatory fees and charges of whatever nature and kind, payable by the CONTRACTOR to the Local and/or National Governments, pursuant to applicable laws, rules and regulations and/or by equity and natural justice, and

(k)            Any and all other legal or financial obligations of whatever nature and kind not mentioned above which are payable by the CONTRACTOR to the Local and/or National Governments pursuant to applicable laws, rules and regulations and/or by equity and natural justice.

All of the aforecited items shall be for the sole account of and shall be the exclusive duty, responsibility, liability and obligation of the CONTRACTOR.

The OWNERSs shall not be held liable for any and all of the aforecited obligations or liabilities of the CONTRACTOR.

The OWNERS shall not be held liable for any and all liens and encumbrances which the CONTRACTOR might incur from any and all third parties or entities arising from the supply of materials, labor, or services rendered for the project.

The CONTRACTOR shall secure a CONTRUCTION ALL RISKS INSURANCE at its own expense for the benefit of and to secure, assure and protect the OWNERS, as the assured party, from any and all claims, risks, suits, actions and demands by any and all persons or entities arising from, by reason of, caused by, and due to the subject construction activities.

The said CONTRUCTION ALL RISKS INSURANCE shall be secured by the CONTRACTOR prior to or at the latest within seven days from the date of the execution of this Agreement.

The CONTRACTOR shall furnish the OWNERS the original copies or duplicate original copies or certified true copies of the said CONTRUCTION ALL RISKS INSURANCE and any and all of its related documents, memoranda, records, papers, instruments, vouchers, official receipts and other proofs of payment of the premiums thereof, the proofs of the execution and perfection of the said Insurance Contract, and the like, prior to or at the latest within seven days from the date of the execution of this Agreement.  

ARTICLE 8. CHANGES AND ADDITIONS. -  In the event additional or revised works not shown or indicated in the approved Design and Contract Documents are required or ordered by the OWNERS, such additional or revised works required or ordered by the OWNERS shall be communicated in writing by the OWNERS to the CONTRACTOR through written change orders or memoranda for mutual discussion, approval and documentation and signing thereof by the parties to this Agreement.

All mutually discussed, approved, documented and signed change orders or memoranda, including any and all deletions and omissions, shall state the AGREED COSTS of the additional, revised, deleted or omitted works.

Such agreed costs may or may not result in the upward or downward adjustments of the agreed Contract Price stipulated in Article 5 of this Agreement.

The change orders or memoranda shall indicate any and all agreed TIME EXTENSIONS that the additional or revised works would entail.

 All agreed costs shall be based on the prevailing market prices at the time the change orders or memoranda are mutually approved and signed by the parties to this Agreement.

The specific amounts of the labor costs shall be indicated in the approved and signed change orders or memoranda.

The CONTRACTOR shall be entitled to an amount equivalent to fifteen percent (15 %) of the total of the agreed costs to cover his profit margin and overhead expenses.

No change orders or memoranda shall be implemented without the prior mutual discussion, approval and signature by and between the parties.

ARTICLE 9. TIME OF COMPLETION. -  The CONTRACTOR warrants that the construction of the subject Project shall be completed within TWO HUNDRED (200) working days, excluding Sundays & Holidays, counted (a) from the date of the issuance of the Building Permit and other Related Licenses by the City Building Official and other concerned internal offices of the Local Government of Xxx City or (b) from the date the Site is ready for construction  as mutually determined by the parties --  whichever comes later.

ARTICLE 10. SAFEGUARDS. - The CONTRACTOR shall provide safeguards, facilities, equipment and personnel for the full protection and safety of the construction site and its entire premises and the safety and protection of the general public, pursuant to the standard and/or acceptable norms and practices in the Construction Industry and/or as may be mandated by applicable laws, rules and regulations.

The CONTRACTOR shall be solely responsible for and shall forever hold the OWNERS free and harmless from and against any and all obligations, liabilities, damages, losses, expenses, judgments, court costs or costs of suit, attorney's fees, litigation expenses, demands, payments, suits, actions recoveries, decrees, executions and claims of whatever nature, kind  and description brought, commenced, instituted and/or recovered against the CONTRACTOR and/or jointly against the OWNERS as the co-defendants of the CONTRACTOR (a) by any and all builders, agents, servants, laborers, employees or representatives of the CONTRACTOR and/or (b) by any and all injured or aggrieved persons, parties and/or entities arising from, by reason of, due to, and/or caused by the construction of the subject residential building.

The CONTRACTOR shall be solely responsible for and shall exclusively bear any and all costs and expenses caused by any and all losses, damages, accidents, torts, wrongful acts, crimes or felonies, deaths, injuries, and fire sustained by his laborers or workers, staff, personnel, representatives and agents and/or by any and all Third Parties and Entities arising from or in connection with the execution of the works and services stipulated in this Agreement.

ARTICLE 11. ESCALATION CLAUSE NOT APPLICABLE. - It is agreed that the Contract Price stated in Article 5 of this Agreement is final and fixed.  

It is not subject to escalations or increases in the amounts, rates and valuations of any and all taxes, licenses, permits, materials, inflation, deflation, and/or devaluation of the Philippine Currency.

However in the event of new government-mandated increases in the minimum wages of laborers issued subsequent to the date of the execution of this Agreement, the necessary adjustments  shall be made by the parties to comply therewith.  

The said adjustments shall be subject to the mutual discussion, agreement, consent and written approval by the parties prior to the implementation thereof.  

Xxx, xxx.

Spouses xxx                                             xxx CONSTRUCTION

And xxx                                                       Designer/Contractor

   Owners                                                 

                                                                 By:

                                                                  Xxxx

                                                                             Manager

WITNESSES:

___________________                   ___________________    

ACKNOWLEDGMENT

BEFORE ME in Xxx, Philippines on this ___th day of __________ 2016 personally appeared:

xxx – ID xxx;

xxx – ID xxx; and

Engr. xxx – ID xxx. 

who are known to me and to me known to be the same persons who executed the foregoing Construction Agreement consisting of eleven (11) pages, including the page on which this Acknowledgment is written, which Construction Agreement is signed by the abovenamed parties on the margin of each page thereof, and who acknowledged to me that the same is their free and voluntary act and deed.

WITNESS MY HAND AND SEAL on the date and place first above written.

                                                                   Notary Public

Doc. No. _____

Page No. _____

Book No. _____

Series of 2016.

Annexes:

Annex “A” - Architectural Plans , consisting of three (3) sheets;

Annex “B” - Structural Plans, consisting of two (2) sheets;

Annex “C” - Electrical Plans, consisting of two (2) sheets; 

Annex “D” - Plumbing Plans, consisting of three (3) sheets. 

Prejudicial Question in Criminal Case; sample Reply to Opposition

This pleading is a REPLY to rebut the OPPOSITION in a pending motion to suspend proceedings in a criminal case based on PREJUDICIAL QUESTION. The Reply was prepared by our law office, as counsel for the accused-movant in the "motion to suspend proceedings in a criminal case based on PREJUDICIAL QUESTION". We are sharing it for legal research purposes of our readers/followers.

REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT

Xxx CITY

BRANCH xxx

PEOPLE OF THE PHILIPPINES,

                                    Plaintiff,

                                                                                    Crim. Case No. xxx

              -Versus -

For: Violation of

Xxx                                                                            Sec. 3 (g), RA 3019

(Salary Grade 14)

Former Barangay Chairman

Address:

                                    Accused.

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

REPLY

            THE ACCUSED, by counsel, respectfully states:

1.       X x x.

2.      This Reply rebuts the Comment/Opposition, dated 18 October 2016, of the Office of the Ombudsman to the:

“URGENT MOTION TO SUSPEND PROCEEDINGS BASED ON PREJUDICIAL QUESTION PURSUANT TO SECTION 11, PARAGRAPH “B”, RULE 116, RULES OF CRIMINAL PROCEDURE”, dated October 5, 2015, of the accused.

3.      In the APPEAL MEMORANDUM, dated June 16, 2016, filed by herein accused xxx (and his co-appellants) with the COMMISSION ON AUDIT (COA), they prayed for the following reliefs:

“WHEREFORE, premises considered, it is respectfully prayed that:

1.         The questioned NOTICE OF DISALLOWANCE NO. xxx, dated November 18, 2014, issued by the Appellees be SET ASIDE AND NULLIFIED; and

2.         The transaction subject matter thereof be AFFIRMED AND DECLARED PROPER, LEGITIMATE, LAWFUL AND VALID.

FURTHER, the Appellants pray for such and other reliefs as may be deemed just and equitable in the premises.”

4.      The said appeal which is pending with the COA is clearly PREJUDICIAL to the instant criminal case.

4.1.            If the COA rules with finality to set aside and nullify the questioned notice of disallowance and to affirm and declare as proper, legitimate, lawful and valid the transaction subject matter of the said appeal (which is exactly the same subject matter of the instant criminal case), the legal and operative effect thereof would be to declare the innocence of the herein accused with respect to the offense charged in the instant criminal case.

5.      It must be noted that the sole evidence of the Office of the Ombudsman in filing and prosecuting the instant criminal case is based exactly on the same COA report and notice of disallowance (which is now under a pending appeal by the accused). Nothing else.

6.      The internal rules, policies and procedures of Office of the Ombudsman with respect to criminal cases pending before any tribunal of the Judiciary, which is a constitutionally independent branch of Government, are not superior to the Rules of Court being enforced by the Supreme Court throughout the entire Judiciary.

7.      Section 11, Paragraph “B”, Rule 116, of the Rules of Criminal Procedure empowers this Court TO SUSPEND the instant criminal proceeding until after the FINAL RESOLUTION of the pending and prior PREJUDICIAL QUESTION (COA Appeal) alleged and discussed in the pending motion to suspend proceedings of the accused.

7.1.             No internal rules, procedures and policies of the Office of the Ombudsman may overrule the aforementioned provision of the Rules of Court of the Supreme Court.

8.      The case of PHILIPPINE   AGILA SATELLITE, INC. represented by MICHAEL C.  U.  DE GUZMAN vs. SEC. JOSEFINA TRINIDADLICHAUCO and the HON. OMBUDSMAN, G.R. No. 134887, July 27, 2006, is relevant to this pending incident.

8.1.            It involved a civil case and an Ombudsman case for criminal violation of R.A. No. 3019 (Anti-Graft and Corrupt Practices Act).

8.2.           The main issue in the said case was “whether there exists a prejudicial question”.

8.3.           The Supreme Court cited Section 7, Rule 111 of the Rules on Criminal Procedure which provides:

        Section 7. Elements of prejudicial question. – The elements of a prejudicial question are: (a) the previously instituted civil action involves an issue 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.

8.4.           The Supreme Court held therein that “the rationale for the principle of prejudicial question is that although it does not conclusively resolve the guilt or innocence of the accused, it tests the sufficiency of the allegations in the complaint or information in order to sustain the further prosecution of the criminal case”.  It added: “Hence, the need for its prior resolution before further proceedings in the criminal action may be had.”

8.5.           Analogous to the instant case, the accused in the aforementioned citation was charged with the violation of the related provision of Section 3(e) of R.A. 3019.

8.6.           The Supreme Court stated that the elements of Section 3(e) of R.A. 3019 were as follows:

* The accused is a public officer discharging administrative or official functions or private persons charged in conspiracy with them;

* The public officer committed the prohibited act during the performance of his official duty or in relation to his public position;

* The public officer acted with manifest partiality, evident bad faith or gross, inexcusable negligence; and

·         His action caused undue injury to the Government or any private party, or gave any party any unwarranted benefit, advantage or preference to such parties.

8.7.           The Supreme Court added that the related prior civil cases against the accused therein (Lichauco) involved three causes of action:  (a) injunction; (b) declaration of nullity of award; and (c) damages arising from Lichauco’s questioned acts.

8.8.          The Supreme Court stated:

“If the award to the undisclosed bidder of orbital slot 153ºE is, in the civil case, declared valid for being within Lichauco’s scope of authority to thus free her from liability for damages, there would be no prohibited act to speak of nor there basis for undue injury claimed to have been suffered by petitioner. The finding by the Ombudsman of the existence of a prejudicial question is thus well-taken.”

8.8.1.                 Note that in that aforecited citation the Office of the Ombudsman respected the doctrine of PREJUDICIAL QUESTION as enshrined in the Rules of Criminal Procedure at its investigation phase. (In the instant case, its Prosecution and Monitoring Bureau disagrees with the doctrine).

9.      The case of  EDDIE B. SABANDAL, petitioner, vs. HON. FELIPE S. TONGCO, Presiding Judge, Regional Trial Court, Manila, Branch 42, and PHILIPPINES TODAY, respondents, [G. R. No. 124498. October 5, 2001], cited on Page 4 of the Comment/Opposition of the Prosecution and Monitoring Bureau of the Office of the Ombudsman referred to the following issue: 

“The issue raised is whether a prejudicial question exists to warrant the suspension of the trial of the criminal cases for violation of Batas Pambansa Bilang 22 against petitioner until after the resolution of the civil action for specific performance, recovery of overpayment, and damages.”

9.1.            The said issue is not on all fours with the issue in the instant criminal case.

9.1.1.                   In the aforecited case the simple issue involved the issuance of a bouncing check, a separate crime in itself. The mere issuance of a bouncing check is a crime.

9.2.           The civil cases for specific performance, recovery of overpayment and damages were not deemed to be prejudicial questions in relation to the case for violation of BP Blg. 22.

10.   In the said citation, the Supreme Court held:

“x x x.

In this case, the issue in the criminal cases for violation of Batas Pambansa Bilang 22 is whether the accused knowingly issued worthless checks.

The issue in the civil action for specific performance, overpayment, and damages is whether complainant Sabandal overpaid his obligations to Philippines Today, Inc.

If, after trial in the civil case, petitioner is shown to have overpaid respondent, it does not follow that he cannot be held liable for the bouncing checks he issued, for the mere issuance of worthless checks with knowledge of the insufficiency of funds to support the checks is itself an offense.[18]

The lower court, therefore, did not err in ruling that the pendency of a civil action for specific performance, overpayment, and damages did not pose a prejudicial question in the criminal cases for violation of Batas Pambansa Bilang 22.

Furthermore, the peculiar circumstances of the case clearly indicate that the filing of the civil case was a ploy to delay the resolution of the criminal cases.

Petitioner filed the civil case three years after the institution of the criminal charges against him. Apparently, the civil action was instituted as an afterthought to delay the proceedings in the criminal cases.

Petitioner’s claim of overpayment to respondent may be raised as a defense during the trial of the cases for violation of Batas Pambansa Bilang 22 charged against him.

The civil action for recovery of civil liability is impliedly instituted with the filing of the criminal action.[19]. Hence, petitioner may invoke all defenses pertaining to his civil liability in the criminal action.[20].

Xx x.”

11.   The issues in the case of BRIG. GEN. (Ret.) JOSE S. RAMISCAL, JR., Petitioner, vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, Respondents. G.R. Nos. 169727-28, August 18, 2006, which was cited on Page 67 of the Comment/Opposition are IRRELEVANT to the pending issue of PREJUDICIAL QUESTON in the instant case:

“x x x.

I. THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION IN SUSTAINING THE OMBUDSMANS FINDING OF PROBABLE CAUSE FOR THE COMMISSION OF ONE HUNDRED FORTY EIGHT (148) COUNTS OF ESTAFA THRU FALSIFICATION OF PUBLIC DOCUMENT AND ANOTHER ONE HUNDRED FORTY EIGHT (148) COUNTS OF VIOLATION OF REPUBLIC ACT NO. 3019 AND IN NOT DISMISSING THE INFORMATIONS.

II. THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION IN NOT QUASHING THE INFORMATIONS AND IN NOT DISMISSING THE CASES NOTWITHSTANDING THAT IT HAD NO JURISDICTION OVER THE OFFENSE CHARGED IN THE INFORMATION.

III. THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION IN NOT QUASHING THE INFORMATION IN CRIMINAL CASE NO. 28023  (ESTAFA THROUGH

FALSIFICATION), NOTWITHSTANDING THAT THE FACTS CHARGED THEREIN WERE AN ESSENTIAL PART OF ONE CONTINUING CRIME OF ESTAFA SEPARATELY CHARGED IN CRIMINAL CASES NOS. 28021, 28025, 28027 AND 28029, PENDING IN THE THIRD, FIRST, FIFTH AND SECOND DIVISIONS OF THE SANDIGANBAYAN, RESPECTIVELY, CONSIDERING THAT BASED ON THE DOCUMENTS ADDUCED BY THE PEOPLE AND FOR OBVIOUS WANT OF RELIABLE EVIDENCE, ONLY ONE INFORMATION FOR ESTAFA SHOULD HAVE BEEN FILED FOR ALL THESE CASES INCLUDING THE REMAINING ONE HUNDRED FORTY THREE (143) COUNTS COVERED BY THE OSP MEMORANDUM DATED JUNE 15, 2004, ANNEX T;

IV. THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION IN NOT QUASHING THE INFORMATION IN CRIMINAL CASE NO. 20822 (VIOLATION OF RA NO. 3019) NOTWITHSTANDING THAT THE SAID CASE WAS ABATED BY CRIMINAL CASE NO. 20823 (ESTAFA THROUGH FALSIFICATION) BECAUSE THE VERY FACTS ALLEGED IN THE FORMER WERE ALSO THE VERY FACTS ALLEGED IN THE LATTER, THUS VIOLATING THE RULE ON DOUBLE JEOPARDY.

X x x.”

11.1.          As summarized by the Supreme Court, the issues in the said case were as follows:

“x x x.

The issues are the following: (1) whether the Ombudsman committed grave abuse of discretion amounting to excess or lack of jurisdiction in finding probable cause against petitioner for estafa through falsification of public document and for violation of Section 3(e) of R.A. No. 3019; (2) whether the Sandiganbayan committed grave abuse of discretion amounting to excess of jurisdiction in finding probable cause against petitioner for the issuance of warrants for petitioners arrest without first conducting a hearing; (3) whether petitioner may be charged and prosecuted for five (5) counts of estafa thru falsification of public documents; and (4) whether petitioner may be prosecuted for both estafa through falsification of a public document and violation of Section 3(e) of R.A. No. 3019 without violating his right against double jeopardy.

X x x.”

11.2.         The foregoing issues are totally IRRELEVANT to the issue of the pending PREJUDICIAL QUESTION in the instant case.

12.  The Prosecution cited on Page 6 of its Comment/Opposition the case of MARIO FL. CRESPO, petitioner, vs. HON. LEODEGARIO L. MOGUL, Presiding Judge, CIRCUIT CRIMINAL COURT OF LUCENA CITY, 9th Judicial Dist., THE PEOPLE OF THE PHILIPPINES, represented by the SOLICITOR GENERAL, RICARDO BAUTISTA, ET AL., respondents, G.R. No. L-53373, June 30, 1987. The Supreme Court summarized the issues in the said case, thus:

“Hence this petition for review of said decision was filed by accused whereby petitioner prays that said decision be reversed and set aside, respondent judge be perpetually enjoined from enforcing his threat to proceed with the arraignment and trial of petitioner in said criminal case, declaring the information filed not valid and of no legal force and effect, ordering respondent Judge to dismiss the said case, and declaring the obligation of petitioner as purely civil.”

12.1.         The issues  in the said case are likewise IRRELEVANT to the pending issue of PREJUDICIAL QUESTION in the instant criminal case.

12.2.        The crucial doctrines held in that case which were all IRRELEVANT to the issue of PREJUDICIAL QUESTION) were as follows:

“x x x.

However, one may ask, if the trial court refuses to grant the motion to dismiss filed by the fiscal upon the directive of the Secretary of Justice will there not be a vacuum in the prosecution? A state prosecutor to handle the case cannot possibly be designated by the Secretary of Justice who does not believe that there is a basis for prosecution nor can the fiscal be expected to handle the prosecution of the case thereby defying the superior order of the Secretary of Justice.

The answer is simple. The role of the fiscal or prosecutor as We all know is to see that justice is done and not necessarily to secure the conviction of the person accused before the Courts. Thus, in spite of his opinion to the contrary, it is the duty of the fiscal to proceed with the presentation of evidence of the prosecution to the Court to enable the Court to arrive at its own independent judgment as to whether the accused should be convicted or acquitted. The fiscal should not shirk from the responsibility of appearing for the People of the Philippines even under such circumstances much less should he abandon

the prosecution of the case leaving it to the hands of a private prosecutor for then the entire proceedings will be null and void. 37 The least that the fiscal should do is to continue to appear for the prosecution although he may turn over the presentation of the evidence to the private prosecutor but still under his direction and control. 38

The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation.

In order therefor to avoid such a situation whereby the opinion of the Secretary of Justice who reviewed the action of the fiscal may be disregarded by the trial court, the Secretary of Justice should, as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has already been filed in Court. The matter should be left entirely for the determination of the Court.

X x x.”

13.   At this juncture, it is apropos to cite the case of RE: SUBPOENA DUCES TECUM DATED JANUARY 11, 2010 OF ACTING DIRECTOR ALEU A. AMANTE, PIAB-C, OFFICE OF THE OMBUDSMAN, A.M. No. 10-1-13-SC, March 2, 2010.  

13.1.         By analogy, in the aforecited case, which involved the power of the Office of the Ombudsman to issue subpoenas, the Supreme Court lectured on the limitations on the powers of the Office of the Ombudsman and the legal and constitutional duty of the said Office to comply with the Constitution, the laws, Rules of Court, and the applicable jurisprudence, to wit:

“The grant of this authority, however, is not unlimited, as the Ombudsman must necessarily observe and abide by the terms of the Constitution and our laws, the Rules of Court and the applicable jurisprudence on the issuance, service, validity and efficacy of subpoenas. Under the Rules of Court, the issuance of subpoenas, including a subpoena duces tecum, operates under the requirements of reasonableness and relevance.

THUS:

“x x x.

As guide in the issuance of compulsory processes to Members of this Court, past and present, in relation to complaints touching on the exercise of our judicial functions, we deem it appropriate to discuss for the record the extent of the Ombudsman’s authority in these types of complaints.

In the appropriate case, the Office of the Ombudsman has full authority to issue subpoenas, including subpoena duces tecum, for compulsory attendance of witnesses and the production of documents and information relating to matters under its investigation.[2] The grant of this authority, however, is not unlimited, as the Ombudsman must necessarily observe and abide by the terms of the Constitution and our laws, the Rules of Court and the applicable jurisprudence on the issuance, service, validity and efficacy of subpoenas. Under the Rules of Court, the issuance of subpoenas, including a subpoena duces tecum, operates under the requirements of reasonableness and relevance.[3] For the production of documents to be reasonable and for the documents themselves to be relevant, the matter under inquiry should, in the first place, be one that the Ombudsman can legitimately entertain, investigate and rule upon.

In the present case, the matter that gave rise to the issuance of a subpoena duces tecum was a criminal complaint filed by the complainants Lozano for the alleged violation by retired Supreme Court Chief Justice Hilario Davide, Jr. and retired Associate Justice Ma. Alicia Austria-Martinez of Section 3(e) of R.A. 3019, as amended (the Anti-Graft and Corrupt Practices Act).

A first step in considering whether a criminal complaint (and its attendant compulsory processes) is within the authority of the Ombudsman to entertain (and to issue), is to consider the nature of the powers of the Supreme Court. This Court, by constitutional design, is supreme in its task of adjudication; judicial power is vested solely in the Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts, not only to settle actual controversies, but also to determine whether grave abuse of discretion amounting to lack or excess of jurisdiction has been committed in any branch or instrumentality of government.[4] As a rule, all decisions and determinations in the exercise of judicial power ultimately go to and stop at the Supreme Court whose judgment is final. This constitutional scheme cannot be thwarted or subverted through a criminal complaint that, under the guise of imputing a misdeed to the Court and its Members, seeks to revive and re-litigate matters that have long been laid to rest by the Court. Effectively, such criminal complaint is a collateral attack on a judgment of this Court that, by constitutional mandate, is final and already beyond question.

X x x.”

WHEREFORE, premises considered, it is respectfully prayed that the proceedings in the instant criminal case be SUSPENDED based on PREJUDICIAL QUESTION (i.e., the pending prior quasi-judicial case involving the unresolved/pending APPEAL OF THE ACCUSED BEFORE THE COMMISSION ON AUDIT, NATIONAL CAPITAL REGIONAL OFFICE, supra) pursuant to Section 11, Paragraph “B”, Rule 116, of the Rules of Criminal Procedure, the same to remain SUSPENDED until after the FINAL RESOLUTION of the pending prior PREJUDICIAL QUESTION as discussed in the main body of this motion.

FURTHER, the accused respectfully prays for such and other reliefs as may be deemed just and equitable in the premises.

            Las Pinas City, November 23, 2016.

LASERNA CUEVA-MERCADER

LAW OFFICES

Counsel for Accused

Unit 15, Star Arcade, C. V. Starr Ave.

Philamlife Village, Las Pinas City 1740

Tel/Fax: 8725443 & 8462539

Mobile: 09433425978

Email: lcmlaw@gmail.com

http://lcmlaw1.blogspot.com

http://twitter.com/lcmlaw_ph

http://facebook.com/lcmlawlaspinascity

x x x.

Copy Furnished:

Office of the City Prosecutor.

Hall of Justice

Las Pinas City

            (Personal delivery)

Prosecution and Monitoring Bureau

Office of the Ombudsman

3^rd Flr., Ombudsman Annex Bldg.

Agham Rd., Diliman, Quezon City

            Reg. Rec. No.

            Date                            PO

EXPLANATION

A copy hereof is served on opposing counsel registered mail due to the distance of the office address of adverse counsel, due to the lack of field staff of undersigned counsel at this time, and due to the urgency of filing the same.

                                                                        X x x x.