Ortega, et al. vs. CA, et al., 245 SCRA 529

Ortega, et al. vs. CA, et al., 245 SCRA 529

VITUG, J.: G.R. No. 109248. July 3, 1995.

Parties:

GREGORIO F. ORTEGA, TOMAS O. DEL CASTILLO, JR., and BENJAMIN T. BACORRO, petitioners

HON. COURT OF APPEALS, SECURITIES AND EXCHANGE COMMISSION and JOAQUIN L. MISA, respondents.

Nature: PETITION for review on certiorari of a decision of the Court of Appeals.

Keyword: law firm, partner, partnership at will, 

Facts: The law firm of ROSS, LAWRENCE, SELPH and CARRASCOSO was duly registered in the Mercantile Registry on 4 January 1937 and reconstituted with the Securities and Exchange Commission on 4 August 1948. The SEC records show that there were several subsequent amendments to the articles of partnership:

-       18 September 1958 - ROSS, SELPH and CARRASCOSO

-       6 July 1965 - ROSS, SELPH, SALCEDO, DEL ROSARIO, BITO & MISA

-       18 April 1972 - SALCEDO, DEL ROSARIO, BITO, MISA & LOZADA

-       4 December 1972 - SALCEDO, DEL ROSARIO, BITO, MISA & LOZADA

-       11 March 1977 - DEL ROSARIO, BITO, MISA & LOZADA

-       7 June 1977 - BITO, MISA & LOZADA

-       19 December 1980, [Joaquin L. Misa] appellees Jesus B. Bito and Mariano M. Lozada associated themselves together, as senior partners with respondents-appellees Gregorio F. Ortega, Tomas O. del Castillo, Jr., and Benjamin Bacorro, as junior partners.

On February 17, 1988, petitioner-appellant wrote a letter to the respondents-appellees stating that he was withdrawing and retiring from the firm of Bito, Misa and Lozada, effective at the end of the month. He also trust the accountants to do a proper liquidation based on his participation in the firm. On the same day, petitioner-appellant brought up that he wanted to have a meeting regarding the mechanics of liquidation, more particularly, the two floors of the firm’s building because he had plans for it.

On 19 February 1988, petitioner-appellant wrote respondents-appellees another letter stating that the partnership ceased to be mutually satisfactory despite his effort to ameliorate the level of pay scale of their employees due to disagreements with the other partners.

On 30 June 1988, petitioner filed with this Commission’s Securities Investigation and Clearing Department (SICD) a petition for dissolution and liquidation of partnership.

SEC: held that Petitioner’s withdrawal from the law firm Bito, Misa & Lozada did not dissolve the said law partnership. Accordingly, the petitioner and respondents are hereby enjoined to abide by the provisions of the Agreement relative to the matter governing the liquidation of the shares of any retiring or withdrawing partner in the partnership interest.

SEC En Banc (On Appeal): Reversed the decision of the Hearing Officer and held that the withdrawal of Attorney Joaquin L. Misa had dissolved the partnership of “Bito, Misa & Lozada.” The Commission ruled that, being a partnership at will, the law firm could be dissolved by any partner at anytime, such as by his withdrawal therefrom, regardless of good faith or bad faith, since no partner can be forced to continue in the partnership against his will. Issue:

The parties filed with the appellate court separate appeals.

During the pendency of the case with the Court of Appeals, Attorney Jesus Bito and Attorney Mariano Lozada both died on, respectively, 05 September 1991 and 21 December 1991. The death of the two partners, as well as the admission of new partners, in the law firm prompted Attorney Misa to renew his application for receivership (in CA-G.R. SP No. 24648). He expressed concern over the need to preserve and care for the partnership assets. The other partners opposed the prayer.

CA: Affirmed the decision of SEC.

Issue:

1.Whether or not the partnership of Bito, Misa & Lozada (now Bito, Lozada, Ortega & Castillo) is a partnership at will;

2.Whether or not the withdrawal of private respondent dissolved the partnership regardless of his good or bad faith;

Held:

1. Yes. The partnership agreement of the firm provides that ”[t]he partnership shall continue so long as mutually satisfactory and upon the death or legal incapacity of one of the partners, shall be continued by the surviving partners.”

2. Yes. Any one of the partners may, at his sole pleasure, dictate a dissolution of thepartnership at will (e.g. by way of withdrawal of a partner). He must, however, act in goodfaith, not that the attendance of bad faith can prevent the dissolution of the partnership butthat it can result in a liability for damages

Ratio:

A partnership that does not fix its term is a partnership at will. That the law firm “Bito, Misa & Lozada,” and now “Bito, Lozada, Ortega and Castillo,” is indeed such a partnership need not be unduly belabored. We quote, with approval, like did the appellate court, the findings and disquisition of respondent SEC on this matter; viz:

“The partnership agreement (amended articles of 19 August 1948) does not provide for a specified period or undertaking. The ‘DURATION’ clause simply states:

“ ‘5. DURATION. The partnership shall continue so long as mutually satisfactory and upon the death or legal incapacity of one of the partners, shall be continued by the surviving partners.’

“The hearing officer however opined that the partnership is one for a specific undertaking and hence not a partnership at will, citing paragraph 2 of the Amended Articles of Partnership (19 August 1948):

“‘2. Purpose. The purpose for which the partnership is formed, is to act as legal adviser and representative of any individual, firm and corporation engaged in commercial, industrial or other lawful businesses and occupations; to counsel and advise such persons and entities with respect to their legal and other affairs; and to appear for and represent their principals and client in all courts of justice and government departments and offices in the Philippines, and elsewhere when legally authorized to do so.’

“The ‘purpose’ of the partnership is not the specific undertaking referred to in the law. Otherwise, all partnerships, which necessarily must have a purpose, would all be considered as partnerships for a definite undertaking. There would therefore be no need to provide for articles on partnership at will as none would so exist. Apparently what the law contemplates, is a specific undertaking or ‘project’ which has a definite or definable period of completion.”³

The birth and life of a partnership at will is predicated on the mutual desire and consent of the partners. The right to choose with whom a person wishes to associate himself is the very foundation and essence of that partnership. Its continued existence is, in turn, dependent on the constancy of that mutual resolve, along with each partner’s capability to give it, and the absence of a cause for dissolution provided by the law itself. Verily, any one of the partners may, at his sole pleasure, dictate a dissolution of the partnership at will. He must, however, act in good faith, not that the attendance of bad faith can prevent the dissolution of the partnership⁴ but that it can result in a liability for damages.⁵

In passing, neither would the presence of a period for its specific duration or the statement of a particular purpose for its creation prevent the dissolution of any partnership by an act or will of a partner.⁶ Among partners,⁷ mutual agency arises and the doctrine of delectus personae allows them to have the power, although not necessarily the right, to dissolve the partnership. An unjustified dissolution by the partner can subject him to a possible action for damages.

The dissolution of a partnership is the change in the relation of the parties caused by any partner ceasing to be associated in the carrying on, as might be distinguished from the winding up of, the business.⁸ Upon its dissolution, the partnership continues and its legal personality is retained until the complete winding up of its business culminating in its termination.⁹

The liquidation of the assets of the partnership following its dissolution is governed by various provisions of the Civil Code;¹⁰

Ruling: WHEREFORE, the decision appealed from is AFFIRMED. No pronouncement on costs.

SO ORDERED.

Same Same:

Same; Same; The birth and life of a partnership at will is predicated on the mutual desire and consent of the partners.—The birth and life of a partnership at will is predicated on the mutual desire and consent of the partners. The right to choose with whom a person wishes to associate himself is the very foundation and essence of that partnership. Its continued existence is, in turn, dependent on the constancy of that mutual resolve, along with each partner’s capability to give it, and the absence of a cause for dissolution provided by the law itself. Verily, any one of the partners may, at his sole pleasure, dictate a dissolution of the partnership at will. He must, however, act in good faith, not that the attendance of bad faith can prevent the dissolution of the partnership but that it can result in a liability for damages.

Same; Same; Neither would the presence of a period for its specific duration or the statement of a particular purpose for its creation prevent the dissolution of any partnership by an act or will of a partner.—In passing, neither would the presence of a period for its specific duration or the statement of a particular purpose for its creation prevent the dissolution of any partnership by an act or will of a partner. Among partners, mutual agency arises and the doctrine of delectus personae allows them to have the power, although not necessarily the right, to dissolve the partnership. An unjustified dissolution by the partner can subject him to a possible action for damages.

Same; Same; Upon its dissolution, the partnership continues and its legal personality is retained until the complete winding up of its business culminating in its termination.—The dissolution of a partnership is the change in the relation of the parties caused by any partner ceasing to be associated in the carrying on, as might be distinguished from the winding up of, the business. Upon its dissolution, the partnership continues and its legal personality is retained until the complete winding up of its business culminating in its termination.

Same; Same; The liquidation of the assets of the partnership following its dissolution is governed by various provisions of the Civil Code.—The liquidation of the assets of the partnership following its dissolution is governed by various provisions of the Civil Code; however, an agreement of the partners, like any other contract, is binding among them and normally takes precedence to the extent applicable over the Code’s general provisions.

Same; Same; It would not be right to let any of the partners remain in the partnership under such an atmosphere of animosity.—On the third and final issue, we accord due respect to the appellate court and respondent Commission on their common factual finding, i.e., that Attorney Misa did not act in bad faith. Public respondents viewed his withdrawal to have been spurred by “interpersonal conflict” among the partners. It would not be right, we agree, to let any of the partners remain in the partnership under such an atmosphere of animosity; certainly, not against their will. Indeed, for as long as the reason for withdrawal of a partner is not contrary to the dictates of justice and fairness, nor for the purpose of unduly visiting harm and damage upon the partnership, bad faith cannot be said to characterize the act. Bad faith, in the context here used, is no different from its normal concept of a conscious and intentional design to do a wrongful act for a dishonest purpose or moral obliquity.

Webb vs. De Leon, 247 SCRA 632, G.R. No. 121234, August 23, 1995

Webb vs. De Leon, 247 SCRA 632, G.R. No. 121234, August 23, 1995

Nature: Petitions for the issuance of the extraordinary writs of certiorari, prohibition and mandamus with application for temporary restraining order and preliminary injunction to: (1) annul and set aside the Warrants of Arrest issued against petitioners by respondent Judges de Leon and Tolentino; (2) enjoin the respondents from conducting any proceeding in the aforementioned criminal case; and (3) dismiss said criminal case or include Jessica Alfaro as one of the accused therein.

Keywords: Probable Cause; Issuing of Warrants; Due Process; Vizconde Rape Case

PUNO, J.

Facts: On June 19, 1994, the National Bureau of Investigation (NBI) filed with the Department of Justice a letter-complaint charging petitioners Hubert Webb, Michael Gatchalian, Antonio J. Lejano and six (6) other persons with the crime of Rape and Homicide of Carmela N. Vizconde, her mother Estrellita Nicolas-Vizconde, and her sister Anne Marie Jennifer in their home at Number 80 W. Vinzons, St., BF Homes Paranaque, Metro Manila on June 30, 1991.

Forthwith, the Department of Justice formed a panel of prosecutors headed by Assistant Chief State Prosecutor Jovencio R. Zuno to conduct the preliminary investigation.

ARGUMENTS:

Petitioners fault the DOJ Panel for its finding of probable cause. They assail the credibility of Jessica Alfaro as inherently weak and uncorroborated due to the inconsistencies between her April 28, 1995 and May 22, 1995 sworn statements. They criticize the procedure followed by the DOJ Panel when it did not examine witnesses to clarify the alleged inconsistencies.

Petitioners charge that respondent Judge Raul de Leon and, later, respondent Judge Amelita Tolentino issued warrants of arrest against them without conducting the required preliminary examination.

Petitioners complain about the denial of their constitutional right to due process and violation of their right to an impartial investigation. They also assail the prejudicial publicity that attended their preliminary investigation.

Issues:

1. Whether or not the DOJ Panel likewise gravely abused its discretion in holding that there is probable cause to charge them with the crime of rape and homicide

2. Whether or not respondent Judges de Leon and Tolentino gravely abused their discretion when they failed to conduct a preliminary examination before issuing warrants of arrest against them

3. Whether or not the DOJ Panel denied them their constitutional right to due process during their preliminary investigation

4. Whether or not the DOJ Panel unlawfully intruded into judicial prerogative when it failed to charge Jessica Alfaro in the information as an accused.

Held:

1. NO.

2. NO.

3. NO. There is no merit in this contention because petitioners were given all the opportunities to be heard.

4. NO.

Ratio:

1.    The Court ruled that the DOJ Panel did not gravely abuse its discretion when it found probable cause against the petitioners. A probable cause needs only to rest on evidence showing that more likely than not, a crime has been committed and was committed by the suspects. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt.

The need to find probable cause is dictated by the Bill of Rights which protects "the right of the people to be secure in their persons . . . against unreasonable searches and seizures of whatever nature . . ." An arrest without a probable cause is an unreasonable seizure of a person, and violates the privacy of persons which ought not to be intruded by the State. Probable cause to warrant arrest is not an opaque concept in our jurisdiction. Continuing accretions of case law reiterate that they are facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested. Other jurisdictions utilize the term man of reasonable caution or the term ordinarily prudent and cautious man. he terms are legally synonymous and their reference is not to a person with training in the law such as a prosecutor or a judge but to the average man on the street. It ought to be emphasized that in determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of our technical rules of evidence of which his knowledge is nil. Rather, he relies on the calculus of common sense of which all reasonable men have an abundance.

2.     The Court ruled that respondent judges did not gravely abuse their discretion. In arrest cases, there must be a probable cause that a crime has been committed and that the person to be arrested committed it. Section 6 of Rule 112 simply provides that “upon filing of an information, the Regional Trial Court may issue a warrant for the accused. Clearly the, our laws repudiate the submission of petitioners that respondent judges should have conducted “searching examination of witnesses” before issuing warrants of arrest against them.

3. The records will show that the DOJ Panel did not conduct the preliminary investigation with indecent haste. Petitioners were given fair opportunity to prove lack of probable cause against them. The fairness of this opportunity is well stressed in the Consolidated Comment of the Solicitor General, viz.:

Petitioners were afforded all the opportunities to be heard. Petitioner Webb actively participated in the preliminary investigation by appearing in the initial hearing held on June 30, 1995 and in the second hearing on July 14, 1995; and by filing a "Motion for Production and Examination of Evidence and Documents" on June 27, 1995 (p. 4, Petition), a "Reply to the compliance and Comment/Manifestation to the Motion for Production and Examination of Evidence" on July 5, 1995 (p. 6, Petition), a "Comment and Manifestation" on July 7, 1995 (p. 6, Petition), his "Counter-Affidavit" on July 14, 1995 (pp. 6-7, Petition) and a "Motion to Resolve" on August 1, 1995.

Verily, petitioners cannot now assert that they were denied due process during the conduct of the preliminary investigation simply because the DOJ Panel promulgated the adverse resolution and filed the Information in court against them.

Petitioners cannot also assail as premature the filing of the Information in court against them for rape with homicide on the ground that they still have the right to appeal the adverse resolution of the DOJ Panel to the Secretary of Justice. The filing of said Information is in accord with Department of Justice Order No. 223, series of 1993, dated June 25, 1993. We quote its pertinent sections, viz.:

            Sec. 4.            Non-Appealable Cases; Exceptions. — No appeal may be taken from a resolution of the             Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding probable cause             except upon showing of manifest error or grave abuse of discretion. Notwithstanding the showing of             manifest error or grave abuse of discretion, no appeal shall be entertained where the appellant had             already been arraigned. If the appellant is arraigned during the pendency of the appeal, said appeal             shall be dismissed motu propio by the Secretary of Justice.

            An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall not hold             the filing of the information in court.

            Sec. 2.            When to appeal. — The appeal must be filed within a period of fifteen (15) days from                         receipt of the questioned resolution by the party or his counsel. The period shall be interrupted only             by the filing of a motion for reconsideration within ten (10) days fromvs receipt of the resolution and                         shall continue to run from the time the resolution denying the motion shall have been received by the             movant or his counsel. (Emphasis supplied)

4. Petitioner’s argument lacks appeal for it lies on the faulty assumption that the decision whom to prosecute is a judicial function, the sole prerogative of the courts and beyond executive and legislative interference. In truth, the prosecution of crimes appertains to the executive department of government whose principal power and responsibility is to see that our laws are faithfully executed. A necessary component of this power is the right to prosecute their violators (See R.A. No. 6981 and section 9 of Rule 119 for legal basis).

With regard to the inconsistencies of the sworn statements of Jessica Alfaro, the Court believes that these have been sufficiently explained and there is no showing that the inconsistencies were deliberately made to distort the truth.

With regard to the petitioners’ complaint about the prejudicial publicity that attended their preliminary investigation, the Court finds nothing in the records that will prove that the tone and content of the publicity that attended the investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of the DOJ Panel, for these are basically unbeknown and beyond knowing.

Ruling: IN VIEW WHEREOF, the petitions are dismissed for lack of showing of grave abuse of discretion on the part of the respondents. Costs against petitioners.

Notes:

Sec. 3.            Requisites for issuing search warrant. — A search warrant shall not issue but upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized.

Sec. 4.            Examination of complainant; record. — The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath the complainant and any witnesses he may produce on facts personally known to them and attach to the record their sworn statements together with any affidavits submitted.

Sec. 5.            Issuance and form of search warrant. — If the judge is thereupon satisfied of the facts upon which the application is based, or that there is probable cause to believe that they exist, he must issue the warrant, which must be substantially in the form prescribed by these Rules.

NOTES 2 COMPENDUM:

Facts: Petitioners were charged with rape with homicide. The corresponding warrants were issued for their arrest a few hours later. Petitioners argued that the warrants were invalid because the judges who missed them did not conduct a preliminary examination first,

Held: The Rules of Court do not provide for a similar procedure to be followed in the issuance of warrants of arrest and search warrants. Judges are not required to conduct a searching examination of witnesses before issuing warrants of arrest. Judges merely determine personally the probability of guilt of the accused. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence. 

People of the Philippines vs. Legaspi, G.R. Nos. 92167-68, July 14, 1995

People of the Philippines vs. Legaspi, G.R. Nos. 92167-68, July 14, 1995

Nature:  Appeal from the consolidated Decision of the Regional Trial Court, Branch 124, Kalookan City, for double murder and for violation of Republic Act No. 6539 (Anti-Carnapping Act), finding appellants guilty beyond reasonable doubt of robbery with double homicide.

Keywords:  Right to be informed; Jeepney, carnapping; double murder

Summary:  This is an appeal from the consolidated Decision of the Regional Trial Court,Branch 124, Kalookan City, in Criminal Case No. C-28760(87) for double murder and Criminal Case No. C-28761(87) for violation of Republic Act No. 6539 (Anti-Carnapping Act), finding appellants guilty beyond reasonable doubt of robbery with double homicide. Upon arraignment, the accused pleaded not guilty to the charges. The cases were jointly tried and after trial, the court rendered a consolidated decision

QUIASON, J.

Facts: 

Jose Abales owned a passenger jeepney. On January 7, 1987, his son, Ronaldo, drove the jeepney to service the Novaliches-Bagong Silang route in Kalookan City. Ronaldo was accompanied by Ariel Heloma, as conductor. At around 9:45 p.m., Dominico Mirasol, a friend of Ronaldo, rode the jeepney.

While the jeepney was waiting for passengers, appellant Teody Pamela approached Ronaldo and offered to hire said jeepney. Thereafter, appellant Pamela, together with accused Manuel Torres and Cresencio Palacio, boarded the jeepney. Mirasol alighted before the jeepney reached its terminal. At that time, there were about seven other passengers, including appellants, Torres and Palacio.

When Ronaldo failed to go home that night, Jose Abales started a search for him. At about 2:30 a.m. of the following day, a patrol of the San Jose City police noticed a jeepney parked along the shoulder of the road. Suddenly, the jeepney started and sped away. A chase ensued and two gunshots were fired from the direction of the vehicle. Notwithstanding the warning shots fired by the police, the jeepney refused to stop. The police then radioed their headquarters for assistance. A road block was placed along the route of the jeepney, forcing it to stop. Appellants, Torres and Palacio were then placed under arrest.

The jeepney was that owned by Jose Abales. The police recovered from it a .38 caliber paltik, a 10.5-inch dagger (Exh. "G") with blood stains and a hand grenade. The driver's license of Ronaldo Abales (Exh. "H") was found in the possession of Torres.

The bodies of Ronaldo Abales and Ariel Heloma were found that morning in Camarin, Kalookan City. Abales had a single stab wound while Heloma suffered multiple stab wounds. Both their hands were tied behind them.

Dr. Rodolfo Lezondra, a medico-legal officer of the National Bureau of Investigation, conducted the autopsy. In his reports (Exhs. "P" and "T"), he concluded that Abales and Heloma died of hemorrhage, secondary to stab wounds which could have been caused by a single bladed weapon.

After trial, the court a quo convicted all the accused.

Hence, this appeal.

Issue: 

1.    Whether or not accused-appellants were denied of their right to due process.

2.   Whether or not accused-appellants were deprived of their constitutional right to be informed of the nature and cause of the accusation against them.

Held: 

1. No. Appellants’ conviction is based on the positive testimonies of the witnesses, the investigation conducted and the evidence.The circumstantial evidence found by the trial court is sufficient to convict appellants. We may likewise add that appellants failed to provide any explanation to the following circumstances: (1) the recovery of the dagger (Exh. "G") stained with blood from the jeepney at the time of the arrest; and (2) Torres' possession of the driver's license of the deceased Ronaldo Abales (Exh. "H"). The requisites provided for in Section 4 of Rule 133 of the Revised Rules on Evidence regarding the sufficiency of circumstantial evidence have been complied with. Appellants' defense of denial and alibi are inherently weal especially when only appellants testified as to said defenses. Appellant Legaspi also claimed that he was denied his right to counsel during the custodial investigation. However, the trial court did not consider any evidence taken during the custodial investigation of appellants.

2. YES. The accused were deprived of their constitutional right to be informed of the nature and cause of the accusation against them (1987 Constitution, Art. III, Sec. 14[2]).

We find merit in appellant Pamela's assertion that they were wrongly convicted of the special complex crime of robbery with double homicide.

Appellants were charged with two separate informations, one for double murder (Criminal Case No. C-28760 [87]) and the other for violation of R.A. No. 6539 (Criminal Case No. C-28761 [87]). Their conviction can only be limited to the crime alleged or necessarily included in the allegations in the separate informations. What controls is the description of the offense, as alleged in the information (Santos v. People, 181 SCRA 487 [1990]). While the trial court can hold a joint trial of two or more criminal cases and can render a consolidated decision, it cannot convict the accused of a complex crime constitutive of the various crimes alleged in the two informations. Thus, the accused were deprived of their constitutional right to be informed of the nature and cause of the accusation against them .

Ruling:  WHEREFORE, the Decision appealed from is AFFIRMED with the MODIFICATION that appellants are found guilty of: (1) double murder and sentenced to suffer imprisonment of reclusion perpetua; and (2) violation of R.A. No. 6539 and sentenced to suffer life imprisonment. They are directed to jointly and severally indemnify the heirs of Ronaldo Abales and the heirs of Ariel Heloma the amount of P50,000.00 each.