PONCE VS PARANAQUE FACTS: s "It is a settled rule that relief will not be granted to a party x x x when the loss of the remedy at law was due to his own negligence, or to a mistaken mode of procedure. Before the Court is a Petition for Review2on Certiorari of the March 23, 2007 Decision3of the Court of Appeals (CA), as well as its June 4, 2007 Resolution,4in CA-G.R. SP No. 91791, which dismissed V.C. Ponce Company, Inc.s (VCP) Petiton for Certiorari. The CA held that VCPs resort to a petition for certiorari under Rule 65 of the Rules of Court was inappropriate and that the trial courts rejection of the commissioners appraisal report did not amount to a grave abuse of its discretion. On October 5, 1987, respondent Municipality (now City) of Paraaque (municipality) filed a complaint7against petitioner VCP for the expropriation of its property, which is located in the municipalitys Barrio San Dionisio and covered by Transfer Certificate of Title (TCT) No. 116554.8The municipality intended to develop the property for its landless residents, in line with the Presidential Commission on Urban Poors classification of the site as an area of priority development.9Respondent Sampaguita Hills Homeowners Association, Inc. (SHHAI), consisting of the propertys actual occupants, who are also the intended beneficiaries of the action, intervened in the case.10On August 23, 2002, the Regional Trial Court (RTC) of Paraaque, Branch 274, sustained the municipalitys right to expropriate the said property11and to a writ of possession.12The trial court also informed the parties in the same Order of the reckoning period for the determination of just compensation, thus:The defenses having thus been ruled upon, the Court hereby declares that the plaintiff has the lawful right to take the property sought to be expropriated for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the taking of the property or the filing of the complaint, whichever came first.13Ruling of the Trial CourtOn March 10, 2005, Judge Fortunito L. Madrona (Judge Madrona) rendered his Decision rejecting the report. The trial court explained that just compensation, as Section 4 of Rule 67 of the Rules of Court provides,27must reflect the value and character of the property sought to be expropriated, at the time it was taken or at the time the complaint for expropriation was filed, whichever came first. Applying this rule to the facts of the case, the reckoning period should have been the time of filing of the complaint in 1987 because it took place before the taking of the property in 2002. The report violated this rule by using data from 1996 onwards.The trial court then made an independent finding based on the evidence already on hand. It determined that there exists, on record, a certification from the Office of the City Assessor, that the propertys market value for the years 1985 to 1993 (which includes the year the complaint was filed) was P1,366,400.00.28This value roughly translates to P75 per square meter, for a total of P1,372,350.00. The dispositive portion of the trial courts Decision reads:WHEREFORE, based then from [sic] the foregoing considerations, considering that the land was then a rawland in 1987 at the time of the filing of the Amended Complaint for expropriation, it is the determination of the Court that the just compensation for the expropriation of the parcel of land described as Lot No. 4598 of the Cad. Survey of Paraaque, located in San Dionisio, Paraaque City, containing an area of 18,298 square meters, registered under Transfer Certificate of Title No. 116554 of the Registry of Deeds of Paraaque City in the name of the defendant V.C. Ponce Co., Inc., is hereby fixed at P75.00 per square meter, or for an aggregate valuation of P1,372,350.00.Ruling of the Court of AppealsAt the outset, the CA observed that an ordinary appeal under Rule 41 was available to petitioner and would have constituted a plain, speedy and adequate remedy to correct any perceived error in the RTC Decision. VCP, for unknown reasons, failed to avail itself of the said remedy within the reglementary period. Having lost its right to appeal, VCP resorted to a Petition for Certiorari in the hope that it could nevertheless, obtain a reversal of the RTC Decision. The CA held that certiorari is unavailing as a substitute for a lost appeal. The CA brushed aside as unfounded VCPs excuse that an appeal would be slow and inadequate. Such excuse, it noted, would allow any litigant to avail itself of extraordinary remedies after they lose their right to appeal.41The CA then held that, even if it were to rule that certiorari is proper, it would still dismiss the petition for certiorari. It held that grave abuse of discretion was not attendant in the trial courts rejection of the commissioners report. The CA explained that the trial court has such authority as long as it finds just cause. The reports contravention of the principle regarding the proper reckoning period for the determination of just compensation is such a cause.42Issues1. Is petitioners lack of counsel a justifiable excuse for the late filing of a Motion for Reconsideration?2. Is a Petition for Certiorari the proper remedy to correct alleged errors in the trial courts Decision?RULING:sThe petition has no merit.Period for filing a Motion forReconsideration not extendible; failureto file Motion for Reconsideration ontime renders the Decision final.VCP received the CA Decision on April 10, 2007. Based on Rule 52 of the Rules of Court57and Rule 7 of the 2002 Internal Rules of the Court of Appeals (IRCA),58VCP had 15 days from its receipt of the Decision, or until April 25, 2007, to file a motion for reconsideration, an appeal, or a motion for new trial. Failure to file the necessary pleading within the reglementary period would render the CA Decision final and executory.59Instead of filing a Motion for Reconsideration on April 25, 2007, VCP filed a MOTEX on the ground that its lawyer had withdrawn from the case and it was still in the process of retaining a new counsel. The CA was correct in denying petitioners MOTEX because the period to file a Motion for Reconsideration is not extendible.60The Court has pronounced strict adherence to the rule laid down in Habaluyas Enterprises, Inc. v. Judge Japson61that "no motion for extension of time to file a motion for new trial or reconsideration may be filed with the Metropolitan or Municipal Trial Courts, the Regional Trial Courts, and the Intermediate Appellate Court (now Court of Appeals)."62Since the period to file a Motion for Reconsideration is not extendible, VCPs MOTEX did not toll the reglementary period.63Thus, there being no Motion for Reconsideration as of April 25, 2007, the Decision of the CA dated March 23, 2007 became final and executory by operation of law.64The CA was correct in denying the Motion for Reconsideration that VCP had belatedly filed on May 25, 2007 as its lateness had rendered it moot.There is no justification for theapplication of equity and for therelaxation of the rules.VCP urges the Court to relax the rules on the reglementary period on the ground that it was impossible for it to meet the deadline without the aid of counsel.The Court, in the interest of equity and justice, sometimes allows a liberal reading of the rules, so long as the petitioner is able to prove the existence of cogent reasons to excuse its non-observance.65The Court, however, does not find a justification to warrant such relaxation in this instance.It is incumbent upon the client to exert all efforts to retain the services of new counsel.66VCP knew since August 29, 2006, seven months before the CA rendered its Decision, that it had no counsel. Despite its knowledge, it did not immediately hire a lawyer to attend to its affairs. Instead, it waited until the last minute, when it had already received the adverse CA Decision on April 10, 2007, to search for a counsel; and even then, VCP did not rush to meet the deadline. It asked for an extension of 30 days to file a Motion for Reconsideration.67It finally retained the services of a new counsel on May 24, 2007,68nine months from the time that its former counsel withdrew her appearance. VCP did not even attempt to explain its inaction. The Court cannot grant equity where it is clearly undeserved by a grossly negligent party.69As the Court pronounced in another case:x x x Both parties have a right to a speedy resolution of their case. Not only petitioners, but also the respondents, have a right to have the case finally settled without delay.Furthermore, the failure to file x x x on time was due primarily to petitioners unwise choices x x x. They hired their subsequent lawyers too late.It must be pointed out that petitioners had a choice of whether to continue the services of their original lawyer or consent to let him go. x x x They delayed in engaging their replacement lawyer. Their poor choices and lack of sufficient diligence x x x are the main culprits for the situation they now find themselves in. It would not be fair to pass on the bad consequences of their choices to respondents. Petitioners low regard for the rules or nonchalance toward procedural requirements x x x has in fact contributed much to the delay, and hence frustration of justice, in the present case.70This Court cannot ascribe good faith toVCP as it had neglected reglementaryperiods in the past.Another reason that this Court is unable to accept VCPs plea for indulgence is its observation that VCP has a penchant for disregarding procedural rules and the periods allotted to it for its action.It did not attend the meetings before the commissioners for the initial and the final valuation of its property despite notice. When the commissioners were finalizing their report to meet its deadline, VCP asked for an additional four months to submit its independent valuation of the property. While the commissioners denied VCPs request, VCPs action betrays its lack of consideration for deadlines.Further, VCP did not file a timely appeal from the RTC Order denying its Motion for Reconsideration. VCP received the said Order on August 24, 2005. Instead of appealing under Rule 41 of the Rules of Court, VCP filed, on the 58th day from its receipt of the RTC Order, a MOTEX to file a Petition for Certiorari. While the CA granted VCPs MOTEX,71it was correct in ultimately denying VCPs Petition for Certiorari on the ground that VCP cannot exploit the remedy of certiorari after it had lost its right to appeal.Appeal is a sufficient and adequateremedy unless the party provesotherwise.VCP attempts to extricate itself from the effects of its negligence by alleging that an appeal would not have been speedy and adequate for its purpose. The Court, however, finds no merit in its contention.1wphi1A court with appellate jurisdiction can review both the facts and the law, including questions of jurisdiction.72It can set aside an erroneous decision and even nullify the same, if warranted. Appeal is a speedy remedy, as an adverse party can file its appeal from a final decision or order immediately after receiving it. A party, who is alleging that an appeal will not promptly relieve it of the injurious effects of the judgment, should establish facts to show how the appeal is not speedy or adequate.73VCPs empty protestations, therefore, fail to impress. There is no reason, and VCP cannot explain, why an appeal would not be speedy and adequate to address its assigned errors.74VCP cannot complain of delay because it was guilty of delay itself, and it even waited until the 58th day of its receipt of the CA Decision before taking action. Clearly, petitioner resorted to certiorari as a substitute for its lost appeal.75The CA did not err in dismissing the same.In sum, VCPs continued negligence, and its resort to the wrong remedy, placed all perceived errors in the decisions below beyond the CAs and this Courts grasp.WHEREFORE, premises considered, the petition is DENIED. The March 23, 2007 Decision of the Court of Appeals in CA-G.R. SP No. 91791, as well as its June 4, 2007 Resolution, are AFFIRMED.SO ORDERED.BUSUEGO VS OMBUDSMANFACTS : S Private respondent Rosa S. Busuego (Rosa) filed a complaint for: (1) Concubinage under Article 334 of the Revised Penal Code; (2) violation of Republic Act No. 9262 (Anti-Violence Against Women and Their Children); and (3) Grave Threats under Article 282 of the Revised Penal Code, before the Office of the Ombudsman against her husband, Alfredo, with designation Chief of Hospital, Davao Regional Hospital, Apokon, Tagum City.In her complaint, Rosa painted a picture of a marriage in disarray.She and Alfredo were married on 12 July 1975 at the Assumption Church, Davao City. Their union was blessed with two (2) sons, Alfred and Robert, born in 1976 and 1978, respectively. Sometime in 1983, their marriage turned sour. At this time, Rosa unearthed photographs of, and love letters addressed to Alfredo from, other women. Rosa confronted Alfredo who claimed ignorance of the existence of these letters and innocence of any wrongdoing.Purportedly, Alfredo very rarely stayed at home to spend time with his family. He would come home late at night on weekdays and head early to work the next day; his weekends were spent with his friends, instead of with his family. Rosa considered herself lucky if their family was able to spend a solid hour with Alfredo.Around this time, an opportunity to work as nurse in New York City, United States of America (US) opened up for Rosa. Rosa informed Alfredo, who vehemently opposed Rosas plan to work abroad. Nonetheless, Rosa completed the necessary requirements to work in the US and was scheduled to depart the Philippines in March 1985.Before leaving, Rosa took up the matter again with Alfredo, who remained opposed to her working abroad. Furious with Rosas pressing, Alfredo took his loaded gun and pointed it at Rosas right temple, threatening and taunting Rosa to attempt to leave him and their family. Alfredo was only staved off because Rosas mother arrived at the couples house. Alfredo left the house in a rage: Rosa and her mother heard gun shots fired outside.Because of that incident, Rosa acted up to her plan and left for the US. While in the US, Rosa became homesick and was subsequently joined by her children who were brought to the US by Alfredo. Rosa singularly reared them: Alfred, from grade school to university, while Robert, upon finishing high school, went back to Davao City to study medicine and lived with Alfredo.During that time his entire family was in the US, Alfredo never sent financial support. In fact, it was Rosa who would remit money to Alfredo from time to time, believing that Alfredo had stopped womanizing. Rosa continued to spend her annual vacation in Davao City.Sometime in 1997, Rosa learned that a certain Emy Sia (Sia) was living at their conjugal home. When Rosa asked Alfredo, the latter explained that Sia was a nurse working at the Regional Hospital in Tagum who was in a sorry plight as she was allegedly being raped by Rosas brother-in-law. To get her out of the situation, Alfredo allowed Sia to live in their house and sleep in the maids quarters. At that time, Rosa gave Alfredo the benefit of the doubt.In October 2005, Rosa finally learned of Alfredos extra-marital relationships. Robert, who was already living in Davao City, called Rosa to complain of Alfredos illicit affairs and shabby treatment of him. Rosa then rang up Alfredo which, not surprisingly, resulted in an altercation. Robert executed an affidavit, corroborating his mothers story and confirming his fathers illicit affairsOn 24 June 2008, the Ombudsman issued a Joint Order4impleading Sia and de Leon as party-respondents in the complaint for Concubinage and directing them to submit their respective counter-affidavits within a period of time. Copies of the Joint Order were mailed to Sias and de Leons last known addresses, as provided by Rosa to the Ombudsman.Sia and de Leon did not submit their respective counter-affidavits: a copy of the Joint Order sent to Sias last known address was returned to the Ombudsman with the notation on the Registry Return Receipt No. 1624 "Return to Sender; removed," while a copy thereof to de Leon was received on 3 September 2008 by Ananias de Leon.5Apparently still opposed to the Ombudsmans ruling to simply amend the complaint and implead therein Alfredos alleged mistresses, Alfredo filed his Comment to the 24 June 2008 Order with Motion to Dismiss and/or Refer the charges to the Appropriate Provincial/City Prosecutor6praying for dismissal of the complaint for: (1) failure to implead the two mistresses in violation of Article 344 of the Revised Penal Code; and in the alternative, (2) referral of the complaint to the Office of the City Prosecutor as provided in OMB-DOJ Circular No. 95-001.Rosa filed a Reply to that latest pleading of Alfredo.On 17 April 2009, the Ombudsman issued the herein assailed Resolution, disposing of the procedural issues:Before dwelling into the merits of the case, this Office finds an urgent need to resolve the ancillary issues raised by petitioner Dr. Busuego on: 1.) the alleged legal infirmity of Rosass initiatory pleading by resorting to a procedural short cut which would result to the delay in the disposition of this case; and 2.) the criminal charges imputed are not in relation to office, hence, the Office of the Provincial/City Prosecutor shall investigate and prosecute this case pursuant to OMB-DOJ Joint Circular No. 95-001, Series of 1995.On the first issue, this Office observed that Busuego had already pointed out in his counter-Affidavit the alleged deficiency in the complaint. Rosa also explained in her Reply that the names of the mistresses were categorically mentioned in the complaint. She averred that this Office is empowered to investigate and prosecute any act or omission of a public official or employee to the exclusion of non-government employees. She stated that the inclusion of the alleged concubines in the Information to be filed in court is a matter of procedure, within the competence of the investigating prosecutor.In order to clarify some matters, including the said issue, with the parties, the clarificatory hearing was conducted. It was explained in the said hearing the need to implead the alleged concubines in this case pursuant to Article 344 of the Revised Penal Code and to obviate the proceedings, Rosa was directed to submit the addresses of the alleged concubines. Busuegos position that the said short cut procedure would delay the proceedings is misplaced. If the case will be dismissed based on procedural infirmity, Rosa could still amend her complaint and re-file this case since the doctrine of res judicata does not apply in the preliminary investigation stage of the proceedings.On the second issue, the motion of Busuego to refer this case to the Office of the City Prosecutor was belatedly filed. Record would show that the motion praying for the referral of this case to the Office of the City Prosecutor was filed on 17 July 2008, after the parties have already filed all their pleadings and the case is now ripe for resolution. Further, referral to the said office is not mandatory as cited in the said Joint Circular.7In the same Resolution, the Ombudsman, ultimately, found probable cause to indict only Alfredo and Sia of Concubinage and directed the filing of an Information against them in the appropriate court:WHEREFORE, in view of the foregoing, this Office finds a prima facie case for violation of Article 334 of the Revised Penal Code (concubinage) and that petitioner ALFREDO ROMULO BUSUEGO y ABRIO, and EMY SIA, are probably guilty thereof.Let the herewith Information be filed in the appropriate court.The charges for: 1.) Concubinage against Alfredo Romulo Busuego y Abrio and Julie de Leon; 2.) Grave Threats against Alfredo Romulo y Abrio; and 3.) violation of RA 9262 (Anti-Violence Against Women and Children Act), are hereby DISMISSED for lack of merit.8Alfredo filed a Partial Motion for Reconsideration excepting to the Ombudsmans ruling on the automatic inclusion of Sia as respondent in the complaint and their indictment for the crime of Concubinage. Alfredo is adamant that Rosas complaint should have, at the outset, impleaded his alleged concubines. Failing such, the Ombudsman cannot resort to automatic inclusion of party-respondents, erroneously finding him and Sia prima facie culpable for Concubinage. For good measure, Alfredo pointed out that from Rosas own allegations, she had condoned or pardoned Alfredos supposed concubinage. Alfredo likewise submitted Liza S. Diambangans affidavit, recanting her previous affidavit corroborating Rosas charges.Nonetheless, the Ombudsman stood pat on its ruling, declared that the Partial Motion for Reconsideration was filed out of time, and gave scant attention to Liza S. Diambangans affidavit of recantation:WHEREFORE, all the foregoing considered, this instant Motion for Reconsideration is hereby DENIED. The findings in the questioned Resolution hereby remains undisturbed. Let the Information for Concubinage be filed in the proper court against herein Busuego.9Alfredo now comes to us on petition for certiorari alleging grave abuse of discretion in the Ombudsmans finding of probable cause to indict him and Sia for Concubinage. Alfredos badges of grave abuse of discretion are the following:ISSUE: WON OMBUDSMAN ABUSE ITS DISCRETIONRULING: We sustain the Ombudsman.The Ombudsman has full discretionary authority in the determination of probable cause during a preliminary investigation.10This is the reason why judicial review of the resolution of the Ombudsman in the exercise of its power and duty to investigate and prosecute felonies and/or offenses of public officers is limited to a determination of whether there has been a grave abuse of discretion amounting to lack or excess of jurisdiction. Courts are not empowered to substitute their judgment for that of the Ombudsman.11By grave abuse of discretion is meant such capricious and whimsical exercise of judgment tantamount to lack of jurisdiction.12The abuse of discretion must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility.13In this regard, petitioner failed to demonstrate the Ombudsman's abuse, much less grave abuse, of discretion.First. Alfredo insists that the Ombudsmans automatic inclusion, over his vehement objections of Sia and de Leon as party-respondents, violates Article 344 of the Revised Penal Code and Section 5, Rule 110 of the Rules of Court, which respectively provide:Art. 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of lasciviousness. The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse.The offended party cannot institute criminal prosecution without including both the guilty parties, if they are both alive, nor, in any case, if he shall have consented or pardoned the offenders.Section 5. Who must prosecute criminal action. xxx.The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse. The offended party cannot institute criminal prosecution without including the guilty parties, if both are alive, nor, in any case, if the offended party has consented to the offense or pardoned the offenders.We do not agree.The submission of Alfredo is belied by the fact that the Ombudsman merely followed the provisions of its Rules of Procedure.S Rule IIPROCEDURE IN CRIMINAL CASESx x x xSection 2. Evaluation Upon evaluating the complaint, the investigating officer shall recommend whether it may be:a) dismissed outright for want of palpable merit;b) referred to respondent for comment;c) indorsed to the proper government office or agency which has jurisdiction over the case;d) forwarded to the appropriate office or official for fact-finding investigation;e) referred for administrative adjudication; orf) subjected to a preliminary investigation.x x x xSection 4. Procedure The preliminary investigation of cases falling under the jurisdiction of the Sandiganbayan and Regional Trial Courts shall be conducted in the manner prescribed in Section 3, Rule 112 of the Rules of Court, subject to the following provisions:a) x x xb) After such affidavits have been secured, the investigating officer shall issue an order, attaching thereto a copy of the affidavits and other supporting documents, directing the respondents to submit, within ten (10) days from receipt thereof, his counter-affidavits and controverting evidence with proof of service thereof on the complainant. The complainant may file reply affidavits within ten (10) days after service of the counter-affidavits.c) If the respondents does not file a counter-affidavit, the investigating officer may consider the comment filed by him, if any, as his answer to the complaint. In any event, the respondent shall have access to the evidence on record.d) No motion to dismiss shall be allowed except for lack of jurisdiction.Neither may a motion for a bill of particulars be entertained.If respondent desires any matter in the complainants affidavit to be clarified, the particularization thereof may be done at the time of the clarificatory questioning in the manner provided in paragraph (f) of this section.e) If the respondents cannot be served with the order mentioned in paragraph 6 hereof, or having been served, does not comply therewith, the complaint shall be deemed submitted for resolution on the basis of the evidence on the record.f) If, after the filing of the requisite affidavits and their supporting evidences, there are facts material to the case which the investigating officer may need to be clarified on, he may conduct a clarificatory hearing during which the parties shall be afforded the opportunity to be present but without the right to examine or cross-examine the witness being questioned. Where the appearance of the parties or witnesses is impracticable, the clarificatory questioning may be conducted in writing, whereby the questions desired to be asked by the investigating officer or a party shall be reduced into writing and served on the witness concerned who shall be required to answer the same in writing and under oath.g) Upon the termination of the preliminary investigation, the investigating officer shall forward the records of the case together with his resolution to the designated authorities for their appropriate action thereon.No information may be filed and no complaint may be dismissed without the written authority or approval of the ombudsman in cases falling within the jurisdiction of the Sandiganbyan, or of the proper Deputy Ombudsman in all other cases. (Emphasis supplied).Notably, Rosas complaint contained not just the Concubinage charge, but other charges: violation of Republic Act No. 9262 and Grave Threats. Upon the Ombudsmans perusal, the complaint was supported by affidavits corroborating Rosas accusations. Thus, at that stage, the Ombudsman properly referred the complaint to Alfredo for comment. Nonetheless, while the Ombudsman found no reason for outright dismissal, it deemed it fit to hold a clarificatory hearing to discuss the applicability of Article 344 of the Revised Penal Code, the issue having been insisted upon by Alfredo.Surely the procedural sequence of referral of the complaint to respondent for comment and thereafter the holding of a clarificatory hearing is provided for in paragraph b, Section 2 and paragraphs d and f, Section 4 of Rule II, which we have at the outset underscored. Thus did the Ombudsman rule:In order to clarify some matters, including the said issue, with the parties, the clarificatory hearing was conducted. It was explained in the said hearing the need to implead the alleged concubines in this case pursuant to Article 344 of the Revised Penal Code and to obviate the proceedings, Rosa was directed to submit the addresses of the alleged concubines. Busuegos position that the said short cut procedure would delay the proceedings is misplaced. If the case will be dismissed based on procedural infirmity, Rosa could still amend her complaint and re-file this case since the doctrine of res judicata does not apply in the preliminary investigation stage of the proceedings.14The Ombudsman merely facilitated the amendment of the complaint to cure the defect pointed out by Alfredo. We agree with the Ombudsman that it would be superfluous to dismiss the complaint when amendment thereof is allowed by its Rules of Procedure15and the Rules of Court.16Second. Alfredo claims that the Ombudsman should have referred Rosas complaint to the Department of Justice (DOJ), since the crime of Concubinage is not committed in relation to his being a public officer. This is not a new argument.The Ombudsmans primary jurisdiction, albeit concurrent with the DOJ, to conduct preliminary investigation of crimes involving public officers, without regard to its commission in relation to office, had long been settled in Sen. Honasan II v. The Panel of Investigating Prosecutors of DOJ,17and affirmed in subsequent cases:The Constitution, Section 15 of the Ombudsman Act of 1989 and Section 4 of the Sandiganbayan Law, as amended, do not give to the Ombudsman exclusive jurisdiction to investigate offenses committed by public officers or employees. The authority of the Ombudsman to investigate offenses involving public officers or employees is concurrent with other government investigating agencies such as provincial, city and state prosecutors. However, the Ombudsman, in the exercise of its primary jurisdiction over cases cognizable by the Sandiganbayan, may take over, at any stage, from any investigating agency of the government, the investigation of such cases.In other words, respondent DOJ Panel is not precluded from conducting any investigation of cases against public officers involving violations of penal laws but if the cases fall under the exclusive jurisdiction of the Sandiganbayan, the respondent Ombudsman may, in the exercise of its primary jurisdiction take over at any stage.Thus, with the jurisprudential declarations that the Ombudsman and the DOJ have concurrent jurisdiction to conduct preliminary investigation, the respective heads of said offices came up with OMB-DOJ Joint Circular No. 95-001 for the proper guidelines of their respective prosecutors in the conduct of their investigations, to wit:OMB-DOJ JOINT CIRCULAR NO. 95-001Series of 1995ALL GRAFT INVESTIGATION/SPECIAL PROSECUTIONOFFICERS OF THE OFFICE OF THE OMBUDSMANTO: ALL REGIONAL STATE PROSECUTORS AND THEIR ASSISTANTS, PROVINCIAL/CITY PROSECUTORS AND THEIR ASSISTANTS, STATE PROSECUTORS ANDPROSECUTING ATTORNEYS OF THE DEPARTMENT OFJUSTICE.SUBJECT: HANDLING COMPLAINTS FILED AGAINST PUBLICOFFICERS AND EMPLOYEES, THE CONDUCT OFPRELIMINARY INVESTIGATION, PREPARATION OFRESOLUTIONS AND INFORMATIONS AND PROSECUTION OF CASES BY PROVINCIAL AND CITY PROSECUTORS AND THEIR ASSISTANTS.x---------------------------------------------------------------------------------------xIn a recent dialogue between the OFFICE OF THE OMBUDSMAN and the DEPARTMENT OF JUSTICE, discussion centered around the latest pronouncement of the SUPREME COURT on the extent to which the OMBUDSMAN may call upon the government prosecutors for assistance in the investigation and prosecution of criminal cases cognizable by his office and the conditions under which he may do so. Also discussed was Republic Act No. 7975 otherwise known as "AN ACT TO STRENGTHEN THE FUNCTIONAL AND STRUCTURAL ORGANIZATION OF THE SANDIGANBAYAN, AMENDING FOR THE PURPOSE PRESIDENTIAL DECREE NO. 1606, AS AMENDED" and its implications on the jurisdiction of the office of the Ombudsman on criminal offenses committed by public officers and employees.Concerns were expressed on unnecessary delays that could be caused by discussions on jurisdiction between the OFFICE OF THE OMBUDSMAN and the DEPARTMENT OF JUSTICE, and by procedural conflicts in the filing of complaints against public officers and employees, the conduct of preliminary investigations, the preparation of resolutions and informations, and the prosecution of cases by provincial and city prosecutors and their assistants as DEPUTIZED PROSECUTORS OF THE OMBUDSMAN.Recognizing the concerns, the OFFICE OF THE OMBUDSMAN and the DEPARTMENT OF JUSTICE, in a series of consultations, have agreed on the following guidelines to be observed in the investigation and prosecution of cases against public officers and employees:1. Preliminary investigation and prosecution of offenses committed by public officers and employees IN RELATION TO OFFICE whether cognizable by the SANDIGANBAYAN or the REGULAR COURTS, and whether filed with the OFFICE OF THE OMBUDSMAN or with the OFFICE OF THE PROVINCIAL/CITY PROSECUTOR shall be under the control and supervision of the office of the OMBUDSMAN.2. Unless the Ombudsman under its Constitutional mandate finds reason to believe otherwise, offenses NOT IN RELATION TO OFFICE and cognizable by the REGULAR COURTS shall be investigated and prosecuted by the OFFICE OF THE PROVINCIAL/CITY PROSECUTOR, which shall rule thereon with finality.3. Preparation of criminal information shall be the responsibility of the investigating officer who conducted the preliminary investigation. Resolutions recommending prosecution together with the duly accomplished criminal informations shall be forwarded to the appropriate approving authority.4. Considering that the OFFICE OF THE OMBUDSMAN has jurisdiction over public officers and employees and for effective monitoring of all investigations and prosecutions of cases involving public officers and employees, the OFFICE OF THE PROVINCIAL/CITY PROSECUTOR shall submit to the OFFICE OF THE OMBUDSMAN a monthly list of complaints filed with their respective offices against public officers and employees.x x x xA close examination of the circular supports the view of the respondent Ombudsman that it is just an internal agreement between the Ombudsman and the DOJ.Sections 2 and 4, Rule 112 of the Revised Rules on Criminal Procedure on Preliminary Investigation, effective December 1, 2000, to wit:SEC. 2. Officers authorized to conduct preliminary investigations The following may conduct preliminary investigations:(a) Provincial or City Prosecutors and their assistants;(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;(c) National and Regional State Prosecutors; and(d) Other officers as may be authorized by law.Their authority to conduct preliminary investigation shall include all crimes cognizable by the proper court in their respective territorial jurisdictions.SEC. 4. Resolution of investigating prosecutor and its review. - If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution and information. He shall certify under oath in the information that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses; that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; that the accused was informed of the complaint and of the evidence submitted against him; and that he was given an opportunity to submit controverting evidence. Otherwise, he shall recommend the dismissal of the complaint.Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the resolution within ten (10) days from their receipt thereof and shall immediately inform the parties of such action.No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy.Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy on the ground that a probable cause exists, the latter may, by himself file the information against the respondent, or direct another assistant prosecutor or state prosecutor to do so without conducting another preliminary investigation.If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding information without conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties. The same Rule shall apply in preliminary investigations conducted by the officers of the Office of the Ombudsman.confirm the authority of the DOJ prosecutors to conduct preliminary investigation of criminal complaints filed with them for offenses cognizable by the proper court within their respective territorial jurisdictions, including those offenses which come within the original jurisdiction of the Sandiganbayan; but with the qualification that in offenses falling within the original jurisdiction of the Sandiganbayan, the prosecutor shall, after their investigation, transmit the records and their resolutions to the Ombudsman or his deputy for appropriate action. Also, the prosecutor cannot dismiss the complaint without the prior written authority of the Ombudsman or his deputy, nor can the prosecutor file an Information with the Sandiganbayan without being deputized by, and without prior written authority of the Ombudsman or his deputy.x x x xTo reiterate for emphasis, the power to investigate or conduct preliminary investigation on charges against any public officers or employees may be exercised by an investigator or by any provincial or city prosecutor or their assistants, either in their regular capacities or as deputized Ombudsman prosecutors. The fact that all prosecutors are in effect deputized Ombudsman prosecutors under the OMB-DOJ circular is a mere superfluity. The DOJ Panel need not be authorized nor deputized by the Ombudsman to conduct the preliminary investigation for complaints filed with it because the DOJs authority to act as the principal law agency of the government and investigate the commission of crimes under the Revised Penal Code is derived from the Revised Administrative Code which had been held in the Natividad case citation omitted as not being contrary to the Constitution. Thus, there is not even a need to delegate the conduct of the preliminary investigation to an agency which has the jurisdiction to do so in the first place. However, the Ombudsman may assert its primary jurisdiction at any stage of the investigation. (Emphasis supplied).In Honasan II, although Senator Gregorio "Gringo" Honasan was a public officer who was charged with coup detat for the occupation of Oakwood on 27 July 2003, the preliminary investigation therefor was conducted by the DOJ. Honasan questioned the jurisdiction of the DOJ to do so, proferring that it was the Ombudsman which had jurisdiction since the imputed acts were committed in relation to his public office. We clarified that the DOJ and the Ombudsman have concurrent jurisdiction to investigate offenses involving public officers or employees. Nonetheless, we pointed out that the Ombudsman, in the exercise of its primary jurisdiction over cases cognizable by the Sandiganbayan, may take over, at any stage, from any investigating agency of the government, the investigation of such cases. Plainly, applying that ruling in this case, the Ombudsman has primary jurisdiction, albeit concurrent with the DOJ, over Rosas complaint, and after choosing to exercise such jurisdiction, need not defer to the dictates of a respondent in a complaint, such as Alfredo. In other words, the Ombudsman may exercise jurisdiction to the exclusion of the DOJ.SMART VS ALDECOAFACTS: Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court filed by petitioner Smart Communications, Inc., seeking the reversal of the Decision1dated July 16, 2004 and Resolution2dated December 9, 2004 of the Court of Appeals in CA-G.R. CV No. 71337. The appellate court (I) reversed and set aside the Order3dated January 16, 2001 of the Regional Trial Court (RTC), Branch 23, of Roxas, Isabela, in Civil Case No. Br. 23-632-2000 dismissing the complaint for abatement of nuisance and injunction against petitioner, and (2) entered a new judgment declaring petitioner's cellular base station located in Barangay Vira, Municipality of Roxas, Province of Isabela, a nuisance and ordering petitioner to cease and desist from operating the said cellular base station.The instant Petition arose from the following facts:Petitioner is a domestic corporation engaged in the telecommunications business. On March 9, 2000, petitioner entered into a contract of lease4with Florentino Sebastian in which the latter agreed to lease to the former a piece of vacant lot, measuring around 300 square meters, located in Barangay Vira, Roxas, Isabela (leased property).Petitioner, through its contractor, Allarilla Construction, immediately constructed and installed a cellular base station on the leased property. Inside the cellular base station is a communications tower, rising as high as150 feet, with antennas and transmitters; as well as a power house open on three sides containing a 25KVA diesel power generator. Around and close to the cellular base station are houses, hospitals, clinics, and establishments, including the properties of respondents Arsenio Aldecoa, Jose B. Torre, Conrado U. Pua, Gregorio V. Mansano, Jerry Corpuz, and Estelita Acosta.Civil Case No. Br. 23-632-2000 was set for pre-trial on September 28, 2000.9On September 11, 2000, petitioner filed its Pre-Trial Brief in which it identified the following issues:4.1. Whether respondents have a cause of action against the petitioner SMART for this Honorable Court to issue a Preliminary Mandatory Injunction over the SMART tower in Roxas, Isabela as it allegedly poses a threat to the lives and safety of the residents within the area and if respondents are entitled to moral and exemplary damages as well as attorneys fees and expenses of litigation.4.2 Whether the complaint should be dismissed in that the claim or demand set forth in the Complaint is fictitious, imaginary, sham and without any real basis.4.3. What petitioner SMART is entitled under its compulsory counterclaim against respondents for moral and exemplary damages, attorneys fees, and other expenses of litigation.10On even date, petitioner filed a Motion for Summary Judgment that reads:Petitioner SMART Communications Inc., thru counsel, respectfully manifests that:1. There is no need for a full-blown trial as the causes of action and issues have already been identified in all the pleadings submitted to this Honorable court by both respondents and petitioner2. There is clearly no genuine issue as to any material fact or cause in the action.3. There is no extreme urgency to issue a Preliminary Mandatory Injunction as stated in an affidavit executed by SMART Senior Supervisor Andres V. Romero in an affidavit hereto attached as Annex "A"4. Petitioner seeks immediate declaratory relief from respondents contrived allegations as set forth in their complaint;Wherefore, it is most respectfully prayed of this Honorable Court that summary judgment be rendered pursuant to Rule 35 of the Revised Rules of Court.11Respondents filed their Pre-Trial Brief on September 21, 2000, proposing to limit the issues,viz:- Whether petitioners communications tower is a nuisance per se/per accidens and together with its standby generator maybe abated for posing danger to the property and life and limb of the residents of Vira, Roxas, Isabela more particularly the respondents and those whose houses are clustered around or in the periphery of the cell site.- Damages, attorneys fees, litigation expenses and other claims.12Respondents likewise filed on September 21, 2000 their Opposition to petitioners Motion for Summary Judgment, maintaining that there were several genuine issues relating to the cause of action and material facts of their Complaint. They asserted that there was a need for a full blown trial to prove the allegations in their Complaint, as well as the defenses put up by petitioner.13In its Order14dated September 28, 2000, the RTC indefinitely postponed the pre-trial until it has resolved petitioners Motion for Summary Judgment. In the same Order, the RTC directed the counsels of both parties to submit their memoranda, including supporting affidavits and other documents within 30 days.Petitioner submitted its Memorandum15on October 26, 2000; while respondents, following several motions for extension of time, filed their Memorandum16on November 22, 2000. In their Memorandum, respondents additionally alleged that:The cellsite base station is powered by a roaring 25 KVA power generator. Operated 24 hours since it started more than a month ago, it has sent "jackhammers into the brains" of all the inhabitants nearby. Everyone is going crazy. A resident just recently operated for breast cancer is complaining that the noise emanating from the generator is fast tracking her appointment with death. She can no longer bear the unceasing and irritating roar of the power generator.For this, the residents, led by the respondents, sought a noise emission test of the power generator of petitioner SMART Communications with the DENR. The test was conducted on November 14 and 15, 2000 and the result shows that the petitioners power generator failed the noise emission test, day and night time. Result of this test was furnished the Municipal Mayor of Roxas, Isabela (See Communication of DENR Regional Director Lorenzo C. Aguiluz to Mayor Benedicto Calderon dated November 16, 2000 and the Inspection Monitoring Report).With these findings, the power generator is also a nuisance. It must also be abated.17On January 16, 2001, the RTC issued its Order granting petitioners Motion for Summary Judgment and dismissing respondents Complaint. The RTC ruled as follows:What is of prime importance is the fact that contrary to the respondents speculation, the radio frequency radiation as found out by the Department of Health is much lower compared to that of TV and radio broadcast. The respondents counter to this claim is that the Department of Health was misled. This is a mere conclusion of the respondents.The respondents in opposing the Smarts construction of their cellsite is anchored on the supposition that the operation of said cellsite tower would pose a great hazard to the health of the alleged cluster of residents nearby and the perceived danger that the said tower might also collapse in case of a strong typhoon that fell the Mobiline Cellsite tower of Mobiline (sic). The structured built of the Smarts Cellsite tower is similar to that of the Mobiline.Now, as to the Courts assessment of the circumstances obtaining, we find the claim of the respondents to be highly speculative, if not an isolated one. Elsewhere, we find several cellsite towers scattered (sic) allover, both of the Smart, Globe, and others, nay even in thickly populated areas like in Metro Manila and also in key cities nationwide, yet they have not been outlawed or declared nuisance as the respondents now want this Court to heed. To the thinking of the Court, the respondents are harping imagined perils to their health for reason only known to them perhaps especially were we to consider that the Brgy. Captain of Vira earlier gave its imprimatur to this project. Noteworthy is the fact that the alleged cluster of residential houses that abut the cellsite tower in question might be endangered thereby, the respondents are but a few of those residents. If indeed, all those residents in Vira were adversely affected for the perceived hazards posed by the tower in question, they should also have been joined in as respondents in a class suit. The sinister motive is perhaps obvious.All the foregoing reasons impel this Court to grant the petitioners motion for the dismissal of the complaint, the perceived dangers being highly speculative without any bases in fact. Allegations in the complaint being more imaginary than real, do not constitute factual bases to require further proceeding or a trial. As to the claim that there is no certification or clearance from the DENR for the petitioner to lay in wait before the construction, suffice it to say that no action as yet has been taken by said office to stop the ongoing operation of said cellsite now in operation. There has been no hue and cry from among the greater majority of the people of Roxas, Isabela, against it. Al contrario, it is most welcome to them as this is another landmark towards the progress of this town.18The dispositive portion of the RTC Order reads:WHEREFORE, in view of the foregoing considerations, the Court hereby renders judgment dismissing the complaint as the allegations therein are purely speculative and hence no basis in fact to warrant further proceedings of this case.The Court finds no compelling grounds to award damages.Without costs.19In another Order20dated February 27, 2001, the RTC denied respondents Motion for Reconsideration.Respondents filed an appeal with the Court of Appeals, docketed as CA-G.R. CV No. 71337.The Court of Appeals rendered its Decision on July 16, 2004. The appellate court declared the cellular base station of petitioner a nuisance that endangered the health and safety of the residents of Barangay Vira, Roxas, Isabela because: (1) the locational clearance granted to petitioner was a nullity due to the lack of approval by majority of the actual residents of thebarangay and a barangay resolution endorsing the construction of the cellular base station; and (2) the sound emission of the generator at the cellular base station exceeded the Department of Environment and Natural Resources (DENR) standards. Consequently, the Court of Appeals decreed:WHEREFORE, the appealed decision is hereby REVERSED and SET ASIDE. A new one is entered declaring the communications tower or base station of petitioner Smart Communications, Inc. located at Brigido Pascual Street in Vira, Municipality of Roxas, Province of Isabela, a nuisance. Petitioner is ordered to cease and desist from operating the said tower or station.21Petitioner filed its Motion for Reconsideration arguing that: (1) the basis for the judgment of the appellate court that the cellular base station was a nuisance had been extinguished as the generator subject of the Complaint was already removed; and (2) there had been substantial compliance in securing all required permits for the cellular base station.22The Court of Appeals, in a Resolution dated December 9, 2004,refused to reconsider its earlier Decision, reasoning that:Petitioner principally anchors its pleas for reconsideration on the Certification issued by Roxas, Isabela Municipal Engineer Virgilio Batucal, declaring that upon actual inspection, no Denyo Generator Set has been found in the companys cell site in Roxas, Isabela. We hold, however, that the certification dated August 12, 2004, taken on its own, does not prove Smarts allegation that it has abandoned using diesel- powered generators since January 2002. Respondents current photographs of the cell site clearly shows (sic) that Smart continues to use a mobile generator emitting high level of noise and fumes.ISSUE: 21.0 The Court of Appeals erred when it encroached upon an executive function of determining the validity of a locational clearance when it declared, contrary to the administrative findings of the Housing Land Use and Regulatory Board ("HLURB"), that the locational clearance of Petitioner was void.22.0 The Court of Appeals erred when it resolved an issue that was not submitted to it for resolution and in the process had usurped a purely executive function.23.0 The Court of Appeals erred in declaring Petitioners entire base station a nuisance considering that it was only a small part of the base station, a generator that initially powered the base station, that was reportedly producing unacceptable levels of noise.24.0 The Court of Appeals erred in not considering that the supervening event of shut down and pull out of the generator in the base station, the source of the perceived nuisance, made the complaint for abatement of nuisance academic.24RULING:S The Petition is partly meritorious. While the Court agrees that the Court of Appeals should not have taken cognizance of the issue of whether the locational clearance for petitioners cellular base station is valid, the Court will still not reinstate the RTC Order dated January 16, 2001 granting petitioners Motion for Summary Judgment and entirely dismissing Civil Case No. Br. 23-632-2000. The issues of (1) whether petitioners cellular base station is a nuisance, and (2) whether the generator at petitioners cellular base station is, by itself, also a nuisance, ultimately involve disputed or contested factual matters that call for the presentation of evidence at a full-blown trial.On the finding of the Court ofAppeals that petitioners locationalclearance for its cellular base stationis a nullityBased on the principle of exhaustion of administrative remedies and its corollary doctrine of primary jurisdiction, it was premature for the Court of Appeals to take cognizance of and rule upon the issue of the validity or nullity of petitioners locational clearance for its cellular base station.The principle of exhaustion of administrative remedies and the doctrine of primary jurisdiction were explained at length by the Court in Province of Zamboanga del Norte v. Court of Appeals,25as follows:The Court in a long line of cases has held that before a party is allowed to seek the intervention of the courts, it is a pre-condition that he avail himself of all administrative processes afforded him. Hence, if a remedy within the administrative machinery can be resorted to by giving the administrative officer every opportunity to decide on a matter that comes within his jurisdiction, then such remedy must be exhausted first before the court's power of judicial review can be sought. The premature resort to the court is fatal to one's cause of action. Accordingly, absent any finding of waiver or estoppel, the case may be dismissed for lack of cause of action.The doctrine of exhaustion of administrative remedies is not without its practical and legal reasons. Indeed, resort to administrative remedies entails lesser expenses and provides for speedier disposition of controversies. Our courts of justice for reason of comity and convenience will shy away from a dispute until the system of administrative redress has been completed and complied with so as to give the administrative agency every opportunity to correct its error and to dispose of the case.x x x xThe doctrine of primary jurisdiction does not warrant a court to arrogate unto itself the authority to resolve a controversy the jurisdiction over which is initially lodged with an administrative body of special competence.We have held that while the administration grapples with the complex and multifarious problems caused by unbridled exploitation of our resources, the judiciary will stand clear. A long line of cases establishes the basic rule that the court will not interfere in matters which are addressed to the sound discretion of government agencies entrusted with the regulation of activities coming under the special technical knowledge and training of such agencies.In fact, a party with an administrative remedy must not merely initiate the prescribed administrative procedure to obtain relief, but also pursue it to its appropriate conclusion before seeking judicial intervention. The underlying principle of the rule on exhaustion of administrative remedies rests on the presumption that when the administrative body, or grievance machinery, is afforded a chance to pass upon the matter, it will decide the same correctly. (Citations omitted.)The Court again discussed the said principle and doctrine in Addition Hills Mandaluyong Civic & Social Organization, Inc. v. Megaworld Properties & Holdings, Inc., et al.,26citing Republic v. Lacap,27to wit:We have consistently declared that the doctrine of exhaustion of administrative remedies is a cornerstone of our judicial system. The thrust of the rule is that courts must allow administrative agencies to carry out their functions and discharge their responsibilities within the specialized areas of their respective competence. The rationale for this doctrine is obvious. It entails lesser expenses and provides for the speedier resolution of controversies. Comity and convenience also impel courts of justice to shy away from a dispute until the system of administrative redress has been completed.In the case of Republic v. Lacap, we expounded on the doctrine of exhaustion of administrative remedies and the related doctrine of primary jurisdiction in this wise:The general rule is that before a party may seek the intervention of the court, he should first avail of all the means afforded him by administrative processes. The issues which administrative agencies are authorized to decide should not be summarily taken from them and submitted to a court without first giving such administrative agency the opportunity to dispose of the same after due deliberation.Corollary to the doctrine of exhaustion of administrative remedies is the doctrine of primary jurisdiction; that is, courts cannot or will not determine a controversy involving a question which is within the jurisdiction of the administrative tribunal prior to the resolution of that question by the administrative tribunal, where the question demands the exercise of sound administrative discretion requiring the special knowledge, experience and services of the administrative tribunal to determine technical and intricate matters of fact. (Citations omitted.)The Housing and Land Use Regulatory Board (HLURB)28is the planning, regulatory, and quasi-judicial instrumentality of government for land use development.29In the exercise of its mandate to ensure rational land use by regulating land development, it issued HLURB Resolution No.R-626, series of 1998, Approving the Locational Guidelines for Base Stations of Cellular Mobile Telephone Service, Paging Service, Trunking Service, Wireless Loop Service and Other Wireless Communication Services (HLURB Guidelines). Said HLURB Guidelines aim to protect" providers and users, as well as the public in general while ensuring efficient and responsive communication services."Indeed, the HLURB Guidelines require the submission of several documents for the issuance of a locational clearance for a cellular base station, including:IV. Requirements and Procedures in Securing Locational ClearanceA. The following documents shall be submitted in duplicate:x x x xg. Written Consent:g.1 Subdivisionsx x x xg. 1.2 In the absence of an established Homeowners Association, consent/affidavit of non-objection from majority of actual occupants and owners of properties within a radial distance equivalent to the height of the proposed base station measured from its base, including all those whose properties is adjoining the proposed site of the base station.(Refer to Figure 2)x x x xh. Barangay Council Resolution endorsing the base station.Correlatively, the HLURB provides administrative remedies for non-compliance with its requirements.In 2000, when factual precedents to the instant case began to take place, HLURB Resolution No. R-586, series of 1996, otherwise known as the 1996 HLURB Rules of Procedure, as amended, was in effect. The original 1996 HLURB Rules of Procedure was precisely amended by HLURB Resolution No. R-655, series of 1999, "so as to afford oppositors with the proper channel and expeditious means to ventilate their objections and oppositions to applications for permits, clearances and licenses, as well as to protect the rights of applicants against frivolous oppositions that may cause undue delay to their projects. "Under the 1996 HLURB Rules of Procedure, as amended, an opposition to an application for a locational clearance for a cellular base station or a complaint for the revocation of a locational clearance for a cellular base station already issued, is within the original jurisdiction of the HLURB Executive Committee. Relevant provisions read:RULE IIICommencement of Action, Summons and Answerx x x xSECTION 2. Opposition to Application for Permit/License/ Clearance. When an opposition is filed to an application for a license, permit or clearance with the Board or any of its Regional Field Office, the Regional Officer shall make a preliminary evaluation and determination whether the case is impressed with significant economic, social, environmental or national policy implications. If he/she determines that the case is so impressed with significant economic, social, environmental or national policy implications, such as, but not limited to:1) Projects of national significance, for purposes of this rule, a project is of national significance if it is one or falls under any of those enumerated in Rule III, Section 3 of these Rules, as amended;2) Those involving zoning variances and exceptions;3) Those involving significant public interest or policy issues;4) Those endorsed by the zoning administrators of local government units.The Regional Officer shall cause the records of the case to be transmitted to the Executive Committee which shall assume original jurisdiction over the case, otherwise, the Regional Officer shall act on and resolve the Opposition.SECTION 3. A project is of national significance if it involves any of the following:a) Power generating plants (e.g., coal-fired thermal plants)and related facilities (e.g., transmission lines);b) Airport/seaports; dumping sites/sanitary landfills; reclamation projects;c) Large-scale piggery and poultry projects;d) Mining/quarrying projects;e) National government centers;f) Golf courses;g) Fish ponds and aqua culture projects;h) Cell sites and telecommunication facilities;i) Economic zones, regional industrial centers, regional agro-industrial centers, provincial industrial centers;j) All other industrial activities classified as high-intensity uses (1-3 Projects).SECTION 4. Any party aggrieved, by reason of the elevation or non-elevation of any contested application by the Regional Officer, may file a verified petition for review thereof within thirty (30) days from receipt of the notice of elevation or non-elevation of the contested application with the Executive Committee which shall resolve whether it shall assume jurisdiction thereon.The contested application for clearance, permit or license shall be treated as a complaint and all other provisions of these rules on complaints not inconsistent with the preceding section shall, as far as practicable, be made applicable to oppositions except that the decision of the Board en banc on such contested applications shall be final and executory as provided in Rule XIX, Section 2 of these Rules, as amended.The Rules pertaining to contested applications for license, permit or clearance shall, by analogy, apply to cases filed primarily for the revocation thereof.x x x xRULE XVIIProceedings Before the Board of Commissionersx x x xSECTION 15. The Executive Committee. The Executive Committee shall be composed of the four regular Commissioners and the Ex-Officio Commissioner from the Department of Justice.x x x xThe Executive Committee shall act for the Board on policy matters, measures or proposals concerning the management and substantive administrative operations of the Board subject to ratification by the Board en banc, and shall assume original jurisdiction over cases involving opposition to an application for license, permit or clearance for projects or cases impressed with significant economic, social, environmental or national policy implications or issues in accordance with Section 2, Rule II of these Rules, as amended. It shall also approve the proposed agenda of the meetings of the Board en banc. (Emphases supplied.)After the HLURB Executive Committee had rendered its Decision, the aggrieved party could still avail itself of a system of administrative appeal, also provided in the 1996 HLURB Rules of Procedure, as amended:RULE XIIPetition for ReviewSECTION 1. Petition for Review. Any party aggrieved by the Decision of the Regional Officer, on any legal ground and upon payment of the review fee may file with the Regional Office a verified Petition for Review of such decision within thirty (30) calendar days from receipt thereof.In cases decided by the Executive Committee pursuant to Rule II, Section 2 of these Rules, as amended, the verified Petition shall be filed with the Executive Committee within thirty (30) calendar days from receipt of the Committees Decision. Copy of such petition shall be furnished the other party and the Board of Commissioners. No motion for reconsideration or mere notice of petition for review of the decision shall be entertained.Within ten (10) calendar days from receipt of the petition, the Regional Officer, or the Executive Committee, as the case may be, shall elevate the records to the Board of Commissioner together with the summary of proceedings before the Regional Office. The Petition for Review of a decision rendered by the Executive Committee shall betaken cognizance of by the Board en banc.RULE XVIIIAppeal from Board DecisionsSECTION 1.Motion for Reconsideration. Within the period for filing an appeal from a Board decision, order or ruling of the Board of Commissioners, any aggrieved party may file a motion for reconsideration with the Board only on the following grounds: (1) serious errors of law which would result in grave injustice if not corrected; and (2) newly discovered evidence.Only one (1) motion for reconsideration shall be entertained.Motions for reconsideration shall be assigned to the division from which the decision, order or ruling originated.SECTION 2. Appeal. Any party may upon notice to the Board and the other party appeal a decision rendered by the Board of Commissioners en banc or by one of its divisions to the Office of the President within fifteen (15) calendar days from receipt thereof, in accordance with P.D. No. 1344 and A.O. No. 18 Series of 1987.RULE XIXEntry of Judgmentx x x xSECTION 2. Rules on Finality. For purposes of determining when a decision or order has become final and executory for purposes of entry in the Book of Judgment, the following shall be observed:a. Unless otherwise provided in a decision or resolution rendered by the Regional Officer, the Executive Committee, or the Board of Commissioners, as the case may be, the orders contained therein shall become final as regards a party thirty (30) calendar days after the date of receipt thereof and no petition for review or appeal therefrom has been filed within the said period. (Emphases supplied.)There is no showing that respondents availed themselves of the afore-mentioned administrative remedies prior to instituting Civil Case No. Br. 23-632-2000 before the RTC. While there are accepted exceptions to the principle of exhaustion of administrative remedies and the doctrine of primary jurisdiction,30respondents never asserted nor argued any of them. Thus, there is no cogent reason for the Court to apply the exceptions instead of the general rule to this case.Ordinarily, failure to comply with the principle of exhaustion of administrative remedies and the doctrine of primary jurisdiction will result in the dismissal of the case for lack of cause of action. However, the Court herein will not go to the extent of entirely dismissing Civil Case No. Br. 23-632-2000. The Court does not lose sight of the fact that respondents Complaint in Civil Case No. Br. 23-632-2000 is primarily for abatement of nuisance; and respondents alleged the lack of HLURB requirements for the cellular base station, not to seek nullification of petitioners locational clearance, but to support their chief argument that said cellular base station is a nuisance which needs to be abated. The issue of whether or not the locational clearance for said cellular base station is valid is actually separate and distinct from the issue of whether or not the cellular base station is a nuisance; one is not necessarily determinative of the other. While the first is within the primary jurisdiction of the HLURB and, therefore, premature for the courts to rule upon in the present case, the latter is within the jurisdiction of the courts to determine but only after trial proper.On the declaration of the Court ofAppeals that petitioners cellularbase station is a nuisance that mustbe abatedArticle 694 of the Civil Code defines nuisance as:ART. 694. A nuisance is any act, omission, establishment, business, condition of property, or anything else which:(1) Injures or endangers the health or safety of others; or(2) Annoys or offends the senses; or(3) Shocks, defies or disregards decency or morality; or(4) Obstructs or interferes with the free passage of any public highway or street, or any body of water; or(5) Hinders or impairs the use of property.The term "nuisance" is so comprehensive that it has been applied to almost all ways which have interfered with the rights of the citizens, either in person, property, the enjoyment of his property, or his comfort.31The Court, in AC Enterprises, Inc. v. Frabelle Properties Corporation,32settled that a simple suit for abatement of nuisance, being incapable of pecuniary estimation, is within the exclusive jurisdiction of the RTC. Although respondents also prayed for judgment for moral and exemplary damages, attorneys fees, and litigation expenses, such claims are merely incidental to or as a consequence of, their principal relief.Nonetheless, while jurisdiction over respondents Complaint for abatement of nuisance lies with the courts, the respective judgments of the RTC and the Court of Appeals cannot be upheld.At the outset, the RTC erred in granting petitioners Motion for Summary Judgment and ordering the dismissal of respondents Complaint in Civil Case No. Br. 23-632-2000.Summary judgments are governed by Rule 35 of the Rules of Court, pertinent provisions of which state:SEC. 2. Summary judgment for defending party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory relief is sought may, at any time, move with supporting affidavits, depositions or admissions for a summary judgment in his favor as to all or any part thereof.SEC. 3. Motion and proceedings thereon. The motion shall be served at least ten (10) days before the time specified for the hearing. The adverse party may serve opposing affidavits, depositions, or admissions at least three (3) days before the hearing. After the hearing, the judgment sought shall be rendered forthwith if the pleadings, supporting affidavits, depositions, and admissions on file, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Emphases supplied.)In Rivera v. Solidbank Corporation,33the Court discussed extensively when a summary judgment is proper:For a summary judgment to be proper, the movant must establish two requisites: (a) there must be no genuine issue as to any material fact, except for the amount of damages; and (b) the party presenting the motion for summary judgment must be entitled to a judgment as a matter of law. Where, on the basis of the pleadings of a moving party, including documents appended thereto, no genuine issue as to a material fact exists, the burden to produce a genuine issue shifts to the opposing party. If the opposing party fails, the moving party is entitled to a summary judgment.A genuine issue is an issue of fact which requires the presentation of evidence as distinguished from an issue which is a sham, fictitious, contrived or a false claim.The trial court can determine a genuine issue on the basis of the pleadings, admissions, documents, affidavits or counter affidavits submitted by the parties. When the facts as pleaded appear uncontested or undisputed, then there is no real or genuine issue or question as to any fact and summary judgment called for. On the other hand, where the facts pleaded by the parties are disputed or contested, proceedings for a summary judgment cannot take the place of a trial. The evidence on record must be viewed in light most favorable to the party opposing the motion who must be given the benefit of all favorable inferences as can reasonably be drawn from the evidence.Courts must be critical of the papers presented by the moving party and not of the papers/documents in opposition thereto. Conclusory assertions are insufficient to raise an issue of material fact. A party cannot create a genuine dispute of material fact through mere speculations or compilation of differences. He may not create an issue of fact through bald assertions, unsupported contentions and conclusory statements. He must do more than rely upon allegations but must come forward with specific facts in support of a claim. Where the factual context makes his claim implausible, he must come forward with more persuasive evidence demonstrating a genuine issue for trial. (Emphases supplied; citations omitted.)Judging by the aforequoted standards, summary judgment cannot be rendered in this case as there are clearly factual issues disputed or contested by the parties. As respondents correctly argued in their Opposition to petitioners Motion for Summary Judgment:1. Contrary to the claim of petitioner, there are several genuine issues as to the cause of action and material facts related to the complaint. For one there is an issue on the structural integrity of the tower, the ultra high frequency (UHF) radio wave emission radiated by the communications tower affecting the life, health and well being of the[respondents] and the barangay residents, especially their children. Also, the noxious/deleterious fumes and the noise produce[d] by the standby generator and the danger posted by the tower if it collapses in regard to life and limb as well as the property of the [respondents] particularly those whose houses abut, or are near/within the periphery of the communications tower. x x x34Likewise constituting real or genuine issues for trial, which arose from subsequent events, are the following: whether the generator subject of respondents Complaint had been removed; whether said generator had been replaced by another that produces as much or even more noise and fumes; and whether the generator is a nuisance that can be abated separately from the rest of the cellular base station.Furthermore, the Court demonstrated in AC Enterprises, Inc. the extensive factual considerations of a court before it can arrive at a judgment in an action for abatement of nuisance:Whether or not noise emanating from a blower of the air conditioning units of the Feliza Building is nuisance is to be resolved only by the court in due course of proceedings.1wphi1The plaintiff must prove that the noise is a nuisance and the consequences thereof. Noise is not a nuisance per se. It may be of such a character as to constitute a nuisance, even though it arises from the operation of a lawful business, only if it affects injuriously the health or comfort of ordinary people in the vicinity to an unreasonable extent. Injury to a particular person in a peculiar position or of especially sensitive characteristics will not render the noise an actionable nuisance. In the conditions of present living, noise seems inseparable from the conduct of many necessary occupations. Its presence is a nuisance in the popular sense in which that word is used, but in the absence of statute, noise becomes actionable only when it passes the limits of reasonable adjustment to the conditions of the locality and of the needs of the maker to the needs of the listener. What those limits are cannot be fixed by any definite measure of quantity or quality; they depend upon the circumstances of the particular case. They may be affected, but are not controlled, by zoning ordinances. The delimitation of designated areas to use for manufacturing, industry or general business is not a license to emit every noise profitably attending the conduct of any one of them.The test is whether rights of property, of health or of comfort are so injuriously affected by the noise in question that the sufferer is subjected to a loss which goes beyond the reasonable limit imposed upon him by the condition of living, or of holding property, in a particular locality in fact devoted to uses which involve the emission of noise although ordinary care is taken to confine it within reasonable bounds; or in the vicinity of property of another owner who, though creating a noise, is acting with reasonable regard for the rights of those affected by it.Commercial and industrial activities which are lawful in themselves may become nuisances if they are so offensive to the senses that they render the enjoyment of life and property uncomfortable. The fact that the cause of the complaint must be substantial has often led to expressions in the opinions that to be a nuisance the noise must be deafening or loud or excessive and unreasonable. The determining factor when noise alone is the cause of complaint is not its intensity or volume. It is that the noise is of such character as to produce actual physical discomfort and annoyance to a person of ordinary sensibilities, rendering adjacent property less comfortable and valuable. If the noise does that it can well be said to be substantial and unreasonable in degree, and reasonableness is a question of fact dependent upon all the circumstances and conditions. There can be no fixed standard as to what kind of noise constitutes a nuisance.The courts have made it clear that in every case the question is one of reasonableness. What is a reasonable use of ones property and whether a particular use is an unreasonable invasion of anothers use and enjoyment of his property so as to constitute a nuisance cannot be determined by exact rules, but must necessarily depend upon the circumstances of each case, such as locality and the character of the surroundings, the nature, utility and social value of the use, the extent and nature of the harm involved, the nature, utility and social value of the use or enjoyment invaded, and the like.Persons who live or work in thickly populated business districts must necessarily endure the usual annoyances and of those trades and businesses which are properly located and carried on in the neighborhood where they live or work. But these annoyances and discomforts must not be more than those ordinarily to be expected in the community or district, and which are incident to the lawful conduct of such trades and businesses. If they exceed what might be reasonably expected and cause unnecessary harm, then the court will grant relief.A finding by the LGU that the noise quality standards under the law have not been complied with is not a prerequisite nor constitutes indispensable evidence to prove that the defendant is or is not liable for a nuisance and for damages. Such finding is merely corroborative to the testimonial and/or other evidence to be presented by the parties. The exercise of due care by the owner of a business in its operation does not constitute a defense where, notwithstanding the same, the business as conducted, seriously affects the rights of those in its vicinity.35(Citations omitted.)A reading of the RTC Order dated January 16, 2001 readily shows that the trial court did not take into account any of the foregoing considerations or tests before summarily dismissing Civil Case No. Br. 23-632-2000. The reasoning of the RTC that similar cellular base stations are scattered in heavily populated areas nationwide and are not declared nuisances is unacceptable. As to whether or not this specific cellular base station of petitioner is a nuisance to respondents is largely dependent on the particular factual circumstances involved in the instant case, which is exactly why a trial for threshing out disputed or contested factual issues is indispensable. Evidently, it was the RTC which engaged in speculations and unsubstantiated conclusions.For the same reasons cited above, without presentation by the parties of evidence on the contested or disputed facts, there was no factual basis for declaring petitioner's cellular base station a nuisance and ordering petitioner to cease and desist from operating the same.Given the equally important interests of the parties in this case, i.e., on one hand, respondents' health, safety, and property, and on the other, petitioner's business interest and the public's need for accessible and better cellular mobile telephone services, the wise and prudent course to take is to remand the case to the RTC for trial and give the parties the opportunity to prove their respective factual claims.WHEREFORE, premises considered, the instant Petition is PARTIALLY GRANTED. The Decision dated July 16, 2004 and Resolution dated December 9, 2004 of the Court of Appeals in CA-G.R. CV No. 71337 are REVERSED and SET ASIDE. Let the records of the case be REMANDED to the Regional Trial Court, Branch 23, of Roxas, Isabela, which is DIRECTED to reinstate Civil Case No. Br. 23-632-2000 to its docket and proceed with the trial and adjudication thereof with appropriate dispatch in accordance with this Decision.SO ORDERED.SAN MIGUEL VS PEREZFACTS: S The pendency of an administrative case for specific performance brought by the buyer of residential subdivision lots in the Housing and Land Use Regulatory Board (HLURB) to compel the seller to deliver the transfer certificates of title (TCTs) of the fully paid lots is properly considered a ground to suspend a criminal prosecution for violation of Section 25 of Presidential Decree No. 9571on the ground of a prejudicial question. The administrative determination is a logical antecedent of the resolution of the criminal charges based on non-delivery of the TCTs.AntecedentsPetitioner San Miguel Properties Inc. (San Miguel Properties), a domestic corporation engaged in the real estate business, purchased in 1992, 1993 and April 1993 from B.F. Homes, Inc. (BF Homes), then represented by Atty. Florencio B. Orendain (Orendain) as its duly authorized rehabilitation receiver appointed by the Securities and Exchange Commission (SEC),2130 residential lots situated in its subdivision BF Homes Paraaque, containing a total area of 44,345 square meters for the aggregate price ofP106,248,000.00. The transactions were embodied in three separate deeds of sale.3The TCTs covering the lots bought under the first and second deeds were fully delivered to San Miguel Properties, but 20 TCTs covering 20 of the 41 parcels of land with a total area of 15,565 square meters purchased under the third deed of sale, executed in April 1993 and for which San Miguel Properties paid the full price ofP39,122,627.00, were not delivered to San Miguel Properties.On its part, BF Homes claimed that it withheld the delivery of the 20 TCTs for parcels of land purchased under the third deed of sale because Atty. Orendain had ceased to be its rehabilitation receiver at the time of the transactions after being meanwhile replaced as receiver by FBO Network Management, Inc. on May 17, 1989 pursuant to an order from the SEC.4BF Homes refused to deliver the 20 TCTs despite demands. Thus, on August 15, 2000, San Miguel Properties filed a complaint-affidavit in the Office of the City Prosecutor of Las Pias City (OCP Las Pias) charging respondent directors and officers of BF Homes with non-delivery of titles in violation of Section 25, in relation to Section 39, both of Presidential Decree No. 957 (I.S. No. 00-2256).5At the same time, San Miguel Properties sued BF Homes for specific performance in the HLURB (HLURB Case No. REM-082400-11183),6praying to compel BF Homes to release the 20 TCTs in its favor.In their joint counter-affidavit submitted in I.S. No. 00-2256,7respondent directors and officers of BF Homes refuted San Miguel Properties assertions by contending that: (a) San Miguel Properties claim was not legally demandable because Atty. Orendain did not have the authority to sell the 130 lots in 1992 and 1993 due to his having been replaced as BF Homes rehabilitation receiver by the SEC on May 17, 1989; (b) the deeds of sale conveying the lots were irregular for being undated and unnotarized; (c) the claim should have been brought to the SEC because BF Homes was under receivership; (d) in receivership cases, it was essential to suspend all claims against a distressed corporation in order to enable the receiver to effectively exercise its powers free from judicial and extra-judicial interference that could unduly hinder the rescue of the distressed company; and (e) the lots involved were under custodia legis in view of the pending receivership proceedings, necessarily stripping the OCP Las Pias of the jurisdiction to proceed in the action.On October 10, 2000, San Miguel Properties filed a motion to suspend proceedings in the OCP Las Pias,8citing the pendency of BF Homes receivership case in the SEC. In its comment/opposition, BF Homes opposed the motion to suspend. In the meantime, however, the SEC terminated BF Homes receivership on September 12, 2000, prompting San Miguel Properties to file on October 27, 2000 a reply to BF Homes comment/opposition coupled with a motion to withdraw the sought suspension of proceedings due to the intervening termination of the receivership.9On October 23, 2000, the OCP Las Pias rendered its resolution,10dismissing San Miguel Properties criminal complaint for violation of Presidential Decree No. 957 on the ground that no action could be filed by or against a receiver without leave from the SEC that had appointed him; that the implementation of the provisions of Presidential Decree No. 957 exclusively pertained under the jurisdiction of the HLURB; that there existed a prejudicial question necessitating the suspension of the criminal action until after the issue on the liability of the distressed BF Homes was first determined by the SEC en banc or by the HLURB; and that no prior resort to administrative jurisdiction had been made; that there appeared to be no probable cause to indict respondents for not being the actual signatories in the three deeds of sale.On February 20, 2001, the OCP Las Pias denied San Miguel Properties motion for reconsideration filed on November 28, 2000, holding that BF Homes directors and officers could not be held liable for the non-delivery of the TCTs under Presidential Decree No. 957 without a definite ruling on the legality of Atty. Orendains actions; and that the criminal liability would attach only after BF Homes did not comply with a directive of the HLURB directing it to deliver the titles.11San Miguel Properties appealed the resolutions of the OCP Las Pias to the Department of Justice (DOJ), but the DOJ Secretary denied the appeal on October 15, 2001, holding:After a careful review of the evidence on record, we find no cogent reason to disturb the ruling of the City Prosecutor of Las Pias City. Established jurisprudence supports the position taken by the City Prosecutor concerned.There is no dispute that aside from the instant complaint for violation of PD 957, there is still pending with the Housing and Land Use Resulatory Board (HLURB, for short) a complaint for specific performance where the HLURB is called upon to inquire into, and rule on, the validity of the sales transactions involving the lots in question and entered into by Atty. Orendain for and in behalf of BF Homes.As early as in the case of Solid Homes, Inc. vs. Payawal, 177 SCRA 72, the Supreme Court had ruled that the HLURB has exclusive jurisdiction over cases involving real estate business and practices under PD 957. This is reiterated in the subsequent cases of Union Bank of the Philippines versus HLURB, G.R. [No.] 953364, June 29, 1992 and C.T. Torres Enterprises vs. Hilionada, 191 SCRA 286.The said ruling simply means that unless and until the HLURB rules on the validity of the transactions involving the lands in question with specific reference to the capacity of Atty. Orendain to bind BF Homes in the said transactions, there is as yet no basis to charge criminally respondents for non-delivery of the subject land titles. In other words, complainant cannot invoke the penal provision of PD 957 until such time that the HLURB shall have ruled and decided on the validity of the transactions involving the lots in question.WHEREFORE, the appeal is hereby DENIED.Ruling of the CAUndaunted, San Miguel Properties elevated the DOJs resolutions to the CA on certiorari and mandamus (C.A.-G.R. SP No. 73008), contending that respondent DOJ Secretary had acted with grave abuse in denying their