Service of Resolutions When DOJ Rules Prevail Over the Rules of Court

The Rules of Court generally require that if a party is represented by counsel, court orders and pleadings must be served on the lawyer, not on the party. But does this rule apply to preliminary investigations conducted by public prosecutors? In Tam Wing Tak v. Hon. Ramon P. Makasiar (G.R. No. 122452, January 29, 2001), the Supreme Court settled this question: the Department of Justice (DOJ) has its own rules, and these may prevail in preliminary investigation proceedings.

The Facts of the Case

Petitioner Tam Wing Tak, as director of Concord-World Properties, Inc., filed a complaint with the Quezon City Prosecutor's Office charging Vic Ang Siong with violation of B.P. Blg. 22 (the Bouncing Checks Law). The complaint alleged that a check for P83,550,000.00 issued by Ang Siong in favor of Concord was dishonored.

The City Prosecutor dismissed the complaint on two grounds: (1) petitioner lacked authority to file the case on behalf of Concord, and (2) the parties had agreed to amicably settle. A copy of the resolution was sent by registered mail to petitioner at the address he indicated, but his counsel was not furnished a copy.

Petitioner's counsel only secured a copy of the resolution on June 27, 1994. Counting the 15-day appeal period from that date, petitioner filed a motion for reconsideration on July 7, 1994. The City Prosecutor denied it, and petitioner appealed to the Chief State Prosecutor, who dismissed the appeal for being filed out of time.

The Issue: Which Rules Govern Service?

Petitioner argued that service of the resolution was invalid because it was made on him personally, not on his counsel, contrary to Rule 13, Section 2 of the Rules of Court. He relied on the ruling in J.M. Javier Logging Corp. v. Mardo that service upon a party who has appeared by counsel is not notice in law.

The Solicitor General countered that the applicable rule was Section 2 of DOJ Order No. 223, which allows service upon either the party or his counsel.

The Ruling: DOJ Rules Apply in Preliminary Investigations

The Supreme Court agreed with the Solicitor General. While the Court acknowledged that service upon a party represented by counsel is generally a nullity, it held that this rule admits of exceptions.

The Court reasoned that the Rules of Court were promulgated to govern "pleadings, practice and procedure in all courts of the Philippines." A preliminary investigation, despite its judicial nature, is not a court proceeding. It is a function of the Executive Department, not the Judiciary. Thus, the rule on service in the Rules of Court cannot be applied to the service of resolutions by public prosecutors, especially when the DOJ has its own procedural rules.

The Court noted that DOJ Order No. 223 was crafted with knowledge of the Rules of Court and jurisprudence. The DOJ deliberately chose not to adopt the same rule, instead wording Section 2 to leave no doubt that service could be made upon either the party or his counsel. Moreover, under the Constitution, rules of procedure of quasi-judicial bodies remain effective unless disapproved by the Supreme Court, and there was no showing that Section 2 had been disapproved.

Mandamus Was Not Available

The Court also rejected petitioner's claim that mandamus should compel the Chief State Prosecutor to file an information. Mandamus lies only where a right is founded clearly in law, except in criminal cases where a prosecutor willfully refuses to perform a duty despite grave abuse of discretion.

Here, the Court found no grave abuse of discretion. First, the amicable settlement between the parties was not contrary to law or public policy. Second, petitioner was neither the payee nor holder of the bounced check—Concord was. Under the Corporation Code, the power to sue on behalf of a corporation is lodged with its board of directors. Petitioner failed to show he was authorized to act for Concord, and his claim could not be upheld as a derivative suit.

Practical Takeaways

• In preliminary investigations, DOJ rules on service apply, not the Rules of Court. Resolutions may be validly served on the party or his counsel under DOJ Order No. 223.
• The 15-day appeal period runs from receipt of the resolution by either the party or counsel. A party cannot claim a fresh period simply because his lawyer was not served.
• A person who is not the payee or holder of a bounced check has no personality to file a criminal complaint for violation of B.P. Blg. 22.
• Corporations can only sue through their board of directors. A stockholder or officer must show clear authority from the board to initiate a criminal complaint on the corporation's behalf.
• Mandamus against a prosecutor is an exceptional remedy, available only upon a clear showing of grave abuse of discretion.

This article is general information and not legal advice. For your specific situation, consult a lawyer or ask ASG Legal AI.