DoJ gets OK to file case vs Globe Asiatique ownerBy Tetch Torres
MANILA, Philippines—The Court of Appeals 17th division gave the Department of Justice (DoJ) the go signal to file syndicated estafa case against Globe Asiatique owner Delfin Lee and several others in connection with the questionable P6-billion loan given to their buyers by the Home Development Mutual Fund (HDMF/PagIbig).
In its 21-page decision, the appeals court, through Associate Justice Franchito Diamante said Pasig City Regional Trial Court Branch 167 Judge Rolando Mislang committed grave abuse of discretion when he enjoined the DoJ from filing a criminal case against Lee and several others.
Mislang also issued an order to the DoJ not to proceed with the preliminary investigation of another case against Lee pending the resolution of a civil case that he filed against HDMF before the Makati City RTC Branch 58.
In issuing the writ, the lower court gave weight to Lee’s arguments that the estafa cases and civil case are similar or intimately related with each other, thus it poses a prejudicial question which must first be resolved before the estafa case can proceed.
But the DoJ, through the Office of the Solicitor-General argued in their petition that the doctrine of prejudicial question is not applicable in this case.
Under Section 7 Rule III of the Revised Rules of Court, government lawyers said Lee must prove that there was a previously instituted civil action involving an issue similar or intimately related to the issue raised in a subsequent criminal action.
“Anent the first DoJ case, the said element is wanting as the criminal complaint before the DoJ was filed by the NBI on Oct. 29, 2010 whereas Lee’s complaint for specific performance against Pag-Ibig Fund was filed before the Makati RTC on Nov. 15, 2010. Moreover, the Makati Civil case which Lee filed aims to compel Pag-Ibig Fund, among others to accept replacement buyers which clearly are not determinative of the former’s innocence or guilt for the crime of syndicated estafa,” the Solicitor General said.
The appeals court, in its decision agreed with the government lawyer.
“A prejudicial question is understood in law as that which must precede the criminal action and which requires a decision before a final judgment can be rendered in the criminal action with which said question is closely connected. The civil action must be instituted prior to the institution of the criminal action,” the appeals court said. But in this case, it pointed that the recommendation by the NBI was filed ahead of the civil case.
Still, the appeals court said even if the civil case was filed ahead of the criminal case, the prejudicial question invoked by Lee is not applicable in his case. The court explained that the case with the DoJ hinges on the existence of fraud and damages which is totally “irrelevant” to the case he filed against Pag-Ibig Fund.
“To reiterate, injunction will not lie to enjoin a criminal prosecution because public interest requires that criminal acts be immediately investigated and protected for the protection of society…Public respondent Judge [Mislang] committed grave abuse of discretion amounting to lack or in excess of jurisdiction when he issued the writ of preliminary injunction enjoining the DoJ from filing an information for estafa against Lee,” the court added.
Concurring in the decision are Associate Justice Mariflor Punzalan Castillo and Edwin Sorongon.