Republic of the PhilippinesSUPREME COURT

ManilaEN BANC

G.R. No. 168539               March 25, 2014PEOPLE OF THE PHILIPPINES, Petitioner,

vs.HENRY T. GO, Respondent.

D E C I S I O NPERALTA, J.:Before the Court is a petition for review on certiorari assailing the Resolution1

of the Third Division2 of the Sandiganbayan (SB) dated June 2, 2005 which quashed the Information filed against herein respondent for alleged violation of Section 3 (g) of Republic Act No. 3019 (R.A. 3019), otherwise known as the Anti-Graft and Corrupt Practices Act.The Information filed against respondent is an offshoot of this Court's Deci-sion3 in Agan, Jr. v. Philippine International Air Terminals Co., Inc. which nulli-fied the various contracts awarded by the Government, through the Depart-ment of Transportation and Communications (DOTC), to Philippine Air Termi-nals, Co., Inc. (PIATCO) for the construction, operation and maintenance of the Ninoy Aquino International Airport International Passenger Terminal III (NAIA IPT III). Subsequent to the above Decision, a certain Ma. Cecilia L. Pe-sayco filed a complaint with the Office of the Ombudsman against several in-dividuals for alleged violation of R.A. 3019. Among those charged was herein respondent, who was then the Chairman and President of PIATCO, for having supposedly conspired with then DOTC Secretary Arturo Enrile (Secretary En-rile) in entering into a contract which is grossly and manifestly disadvanta-geous to the government.On September 16, 2004, the Office of the Deputy Ombudsman for Luzon found probable cause to indict, among others, herein respondent for violation of Section 3(g) of R.A. 3019. While there was likewise a finding of probable cause against Secretary Enrile, he was no longer indicted because he died prior to the issuance of the resolution finding probable cause.Thus, in an Information dated January 13, 2005, respondent was charged be-fore the SB as follows:On or about July 12, 1997, or sometime prior or subsequent thereto, in Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the late ARTURO ENRILE, then Secretary of the Department of Trans-portation and Communications (DOTC), committing the offense in relation to his office and taking advantage of the same, in conspiracy with accused, HENRY T. GO, Chairman and President of the Philippine International Air

Terminals, Co., Inc. (PIATCO), did then and there, willfully, unlawfully and criminally enter into a Concession Agreement, after the project for the con-struction of the Ninoy Aquino International Airport International Passenger Terminal III (NAIA IPT III) was awarded to Paircargo Consortium/PIATCO, which Concession Agreement substantially amended the draft Concession Agreement covering the construction of the NAIA IPT III under Republic Act 6957, as amended by Republic Act 7718 (BOT law), specifically the provision on Public Utility Revenues, as well as the assumption by the government of the liabilities of PIATCO in the event of the latter's default under Article IV, Section 4.04 (b) and (c) in relation to Article 1.06 of the Concession Agree-ment, which terms are more beneficial to PIATCO while manifestly and grossly disadvantageous to the government of the Republic of the Philip-pines.4

The case was docketed as Criminal Case No. 28090.On March 10, 2005, the SB issued an Order, to wit:The prosecution is given a period of ten (10) days from today within which to show cause why this case should not be dismissed for lack of jurisdiction over the person of the accused considering that the accused is a private person and the public official Arturo Enrile, his alleged co-conspirator, is already de-ceased, and not an accused in this case.5

The prosecution complied with the above Order contending that the SB has already acquired jurisdiction over the person of respondent by reason of his voluntary appearance, when he filed a motion for consolidation and when he posted bail. The prosecution also argued that the SB has exclusive jurisdiction over respondent's case, even if he is a private person, because he was al-leged to have conspired with a public officer.6

On April 28, 2005, respondent filed a Motion to Quash7 the Information filed against him on the ground that the operative facts adduced therein do not constitute an offense under Section 3(g) of R.A. 3019. Respondent, citing the show cause order of the SB, also contended that, independently of the de-ceased Secretary Enrile, the public officer with whom he was alleged to have conspired, respondent, who is not a public officer nor was capacitated by any official authority as a government agent, may not be prosecuted for violation of Section 3(g) of R.A. 3019.The prosecution filed its Opposition.8

On June 2, 2005, the SB issued its assailed Resolution, pertinent portions of which read thus:Acting on the Motion to Quash filed by accused Henry T. Go dated April 22, 2005, and it appearing that Henry T. Go, the lone accused in this case is a pri-vate person and his alleged co-conspirator-public official was already de-ceased long before this case was filed in court, for lack of jurisdiction over the

person of the accused, the Court grants the Motion to Quash and the Informa-tion filed in this case is hereby ordered quashed and dismissed.9

Hence, the instant petition raising the following issues, to wit:IWHETHER OR NOT THE COURT A QUO GRAVELY ERRED AND DE-CIDED A QUESTION OF SUBSTANCE IN A MANNER NOT IN ACCORD WITH LAW OR APPLICABLE JURISPRUDENCE IN GRANTING THE DE-MURRER TO EVIDENCE AND IN DISMISSING CRIMINAL CASE NO. 28090 ON THE GROUND THAT IT HAS NO JURISDICTION OVER THE PERSON OF RESPONDENT GO.IIWHETHER OR NOT THE COURT A QUO GRAVELY ERRED AND DE-CIDED A QUESTION OF SUBSTANCE IN A MANNER NOT IN ACCORD WITH LAW OR APPLICABLE JURISPRUDENCE, IN RULING THAT IT HAS NO JURISDICTION OVER THE PERSON OF RESPONDENT GO DESPITE THE IRREFUTABLE FACT THAT HE HAS ALREADY POSTED BAIL FOR HIS PROVISIONAL LIBERTYIIIWHETHER OR NOT THE COURT A QUO GRAVELY ERRED WHEN, IN COMPLETE DISREGARD OF THE EQUAL PROTECTION CLAUSE OF THE CONSTITUTION, IT QUASHED THE INFORMATION AND DISMISSED CRIMINAL CASE NO. 2809010

The Court finds the petition meritorious.Section 3 (g) of R.A. 3019 provides:Sec. 3. Corrupt practices of public officers. – In addition to acts or omissions of public officers already penalized by existing law, the following shall consti-tute corrupt practices of any public officer and are hereby declared to be un-lawful:x x x x(g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the pub-lic officer profited or will profit thereby.The elements of the above provision are:(1) that the accused is a public officer;(2) that he entered into a contract or transaction on behalf of the government; and(3) that such contract or transaction is grossly and manifestly disadvanta-geous to the government.11

At the outset, it bears to reiterate the settled rule that private persons, when acting in conspiracy with public officers, may be indicted and, if found guilty, held liable for the pertinent offenses under Section 3 of R.A. 3019, in conso-

nance with the avowed policy of the anti-graft law to repress certain acts of public officers and private persons alike constituting graft or corrupt practices act or which may lead thereto.12 This is the controlling doctrine as enunciated by this Court in previous cases, among which is a case involving herein pri-vate respondent.13

The only question that needs to be settled in the present petition is whether herein respondent, a private person, may be indicted for conspiracy in violat-ing Section 3(g) of R.A. 3019 even if the public officer, with whom he was al-leged to have conspired, has died prior to the filing of the Information.Respondent contends that by reason of the death of Secretary Enrile, there is no public officer who was charged in the Information and, as such, prosecu-tion against respondent may not prosper.The Court is not persuaded.It is true that by reason of Secretary Enrile's death, there is no longer any pub-lic officer with whom respondent can be charged for violation of R.A. 3019. It does not mean, however, that the allegation of conspiracy between them can no longer be proved or that their alleged conspiracy is already expunged. The only thing extinguished by the death of Secretary Enrile is his criminal liability. His death did not extinguish the crime nor did it remove the basis of the charge of conspiracy between him and private respondent. Stated differently, the death of Secretary Enrile does not mean that there was no public officer who allegedly violated Section 3 (g) of R.A. 3019. In fact, the Office of the Deputy Ombudsman for Luzon found probable cause to indict Secretary En-rile for infringement of Sections 3 (e) and (g) of R.A. 3019.14 Were it not for his death, he should have been charged.The requirement before a private person may be indicted for violation of Sec-tion 3(g) of R.A. 3019, among others, is that such private person must be al-leged to have acted in conspiracy with a public officer. The law, however, does not require that such person must, in all instances, be indicted together with the public officer. If circumstances exist where the public officer may no longer be charged in court, as in the present case where the public officer has already died, the private person may be indicted alone.Indeed, it is not necessary to join all alleged co-conspirators in an indictment for conspiracy.15 If two or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is, in contemplation of law, the act of each of them and they are jointly responsible therefor.16 This means that everything said, written or done by any of the conspirators in execution or fur-therance of the common purpose is deemed to have been said, done, or writ-ten by each of them and it makes no difference whether the actual actor is alive or dead, sane or insane at the time of trial.17 The death of one of two or

more conspirators does not prevent the conviction of the survivor or sur-vivors.18 Thus, this Court held that:x x x [a] conspiracy is in its nature a joint offense. One person cannot conspire alone. The crime depends upon the joint act or intent of two or more persons. Yet, it does not follow that one person cannot be convicted of conspiracy. So long as the acquittal or death of a co-conspirator does not remove the bases of a charge for conspiracy, one defendant may be found guilty of the of-fense.19

The Court agrees with petitioner's contention that, as alleged in the Informa-tion filed against respondent, which is deemed hypothetically admitted in the latter's Motion to Quash, he (respondent) conspired with Secretary Enrile in vi-olating Section 3 (g) of R.A. 3019 and that in conspiracy, the act of one is the act of all. Hence, the criminal liability incurred by a co-conspirator is also in-curred by the other co-conspirators.Moreover, the Court agrees with petitioner that the avowed policy of the State and the legislative intent to repress "acts of public officers and private persons alike, which constitute graft or corrupt practices,"20 would be frustrated if the death of a public officer would bar the prosecution of a private person who conspired with such public officer in violating the Anti-Graft Law.In this regard, this Court's disquisition in the early case of People v. Peralta21

as to the nature of and the principles governing conspiracy, as construed un-der Philippine jurisdiction, is instructive, to wit:x x x A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Generally, conspiracy is not a crime except when the law specifically provides a penalty therefor as in treason, rebellion and sedition. The crime of conspiracy known to the common law is not an indictable offense in the Philippines. An agree-ment to commit a crime is a reprehensible act from the view-point of morality, but as long as the conspirators do not perform overt acts in furtherance of their malevolent design, the sovereignty of the State is not outraged and the tranquility of the public remains undisturbed.However, when in resolute execution of a common scheme, a felony is com-mitted by two or more malefactors, the existence of a conspiracy assumes pivotal importance in the determination of the liability of the perpetrators. In stressing the significance of conspiracy in criminal law, this Court in U.S. vs. Infante and Barreto opined thatWhile it is true that the penalties cannot be imposed for the mere act of con-spiring to commit a crime unless the statute specifically prescribes a penalty therefor, nevertheless the existence of a conspiracy to commit a crime is in many cases a fact of vital importance, when considered together with the

other evidence of record, in establishing the existence, of the consummated crime and its commission by the conspirators.Once an express or implied conspiracy is proved, all of the conspirators are li-able as co-principals regardless of the extent and character of their respective active participation in the commission of the crime or crimes perpetrated in furtherance of the conspiracy because in contemplation of law the act of one is the act of all. The foregoing rule is anchored on the sound principle that "when two or more persons unite to accomplish a criminal object, whether through the physical volition of one, or all, proceeding severally or collectively, each individual whose evil will actively contributes to the wrong-doing is in law responsible for the whole, the same as though performed by himself alone." Although it is axiomatic that no one is liable for acts other than his own, "when two or more persons agree or conspire to commit a crime, each is responsible for all the acts of the others, done in furtherance of the agreement or conspir-acy." The imposition of collective liability upon the conspirators is clearly ex-plained in one case where this Court held that x x x it is impossible to gradu-ate the separate liability of each (conspirator) without taking into consideration the close and inseparable relation of each of them with the criminal act, for the commission of which they all acted by common agreement x x x. The crime must therefore in view of the solidarity of the act and intent which existed be-tween the x x x accused, be regarded as the act of the band or party created by them, and they are all equally responsible x x xVerily, the moment it is established that the malefactors conspired and con-federated in the commission of the felony proved, collective liability of the ac-cused conspirators attaches by reason of the conspiracy, and the court shall not speculate nor even investigate as to the actual degree of participation of each of the perpetrators present at the scene of the crime. Of course, as to any conspirator who was remote from the situs of aggression, he could be drawn within the enveloping ambit of the conspiracy if it be proved that through his moral ascendancy over the rest of the conspirators the latter were moved or impelled to carry out the conspiracy.In fine, the convergence of the wills of the conspirators in the scheming and execution of the crime amply justifies the imputation to all of them the act of any one of them. It is in this light that conspiracy is generally viewed not as a separate indictable offense, but a rule for collectivizing criminal liability.x x x xx x x A time-honored rule in the corpus of our jurisprudence is that once con-spiracy is proved, all of the conspirators who acted in furtherance of the com-mon design are liable as co-principals. This rule of collective criminal liability emanates from the ensnaring nature of conspiracy. The concerted action of the conspirators in consummating their common purpose is a patent display of

their evil partnership, and for the consequences of such criminal enterprise they must be held solidarily liable.22

This is not to say, however, that private respondent should be found guilty of conspiring with Secretary Enrile. It is settled that the absence or presence of conspiracy is factual in nature and involves evidentiary matters.23 Hence, the allegation of conspiracy against respondent is better left ventilated before the trial court during trial, where respondent can adduce evidence to prove or dis-prove its presence.Respondent claims in his Manifestation and Motion24 as well as in his Urgent Motion to Resolve25 that in a different case, he was likewise indicted before the SB for conspiracy with the late Secretary Enrile in violating the same Sec-tion 3 (g) of R.A. 3019 by allegedly entering into another agreement (Side Agreement) which is separate from the Concession Agreement subject of the present case. The case was docketed as Criminal Case No. 28091. Here, the SB, through a Resolution, granted respondent's motion to quash the Informa-tion on the ground that the SB has no jurisdiction over the person of respon-dent. The prosecution questioned the said SB Resolution before this Court via a petition for review on certiorari. The petition was docketed as G.R. No. 168919. In a minute resolution dated August 31, 2005, this Court denied the petition finding no reversible error on the part of the SB. This Resolution be-came final and executory on January 11, 2006. Respondent now argues that this Court's resolution in G.R. No. 168919 should be applied in the instant case.The Court does not agree. Respondent should be reminded that prior to this Court's ruling in G.R. No. 168919, he already posted bail for his provisional liberty. In fact, he even filed a Motion for Consolidation26 in Criminal Case No. 28091. The Court agrees with petitioner's contention that private respondent's act of posting bail and filing his Motion for Consolidation vests the SB with ju-risdiction over his person. The rule is well settled that the act of an accused in posting bail or in filing motions seeking affirmative relief is tantamount to sub-mission of his person to the jurisdiction of the court.27

Thus, it has been held that:When a defendant in a criminal case is brought before a competent court by virtue of a warrant of arrest or otherwise, in order to avoid the submission of his body to the jurisdiction of the court he must raise the question of the court’s jurisdiction over his person at the very earliest opportunity. If he gives bail, demurs to the complaint or files any dilatory plea or pleads to the merits, he thereby gives the court jurisdiction over his person. (State ex rel. John Brown vs. Fitzgerald, 51 Minn., 534)x x x xAs ruled in La Naval Drug vs. CA [236 SCRA 78, 86]:

"[L]ack of jurisdiction over the person of the defendant may be waived either expressly or impliedly. When a defendant voluntarily appears, he is deemed to have submitted himself to the jurisdiction of the court. If he so wishes not to waive this defense, he must do so seasonably by motion for the purpose of objecting to the jurisdiction of the court; otherwise, he shall be deemed to have submitted himself to that jurisdiction."Moreover, "[w]here the appearance is by motion for the purpose of objecting to the jurisdiction of the court over the person, it must be for the sole and sep-arate purpose of objecting to said jurisdiction. If the appearance is for any other purpose, the defendant is deemed to have submitted himself to the juris-diction of the court. Such an appearance gives the court jurisdiction over the person."Verily, petitioner’s participation in the proceedings before the Sandiganbayan was not confined to his opposition to the issuance of a warrant of arrest but also covered other matters which called for respondent court’s exercise of its jurisdiction. Petitioner may not be heard now to deny said court’s jurisdiction over him. x x x.28

In the instant case, respondent did not make any special appearance to ques-tion the jurisdiction of the SB over his person prior to his posting of bail and fil-ing his Motion for Consolidation. In fact, his Motion to Quash the Information in Criminal Case No. 28090 only came after the SB issued an Order requiring the prosecution to show cause why the case should not be dismissed for lack of jurisdiction over his person.As a recapitulation, it would not be amiss to point out that the instant case in-volves a contract entered into by public officers representing the government. More importantly, the SB is a special criminal court which has exclusive origi-nal jurisdiction in all cases involving violations of R.A. 3019 committed by cer-tain public officers, as enumerated in P.D. 1606 as amended by R.A. 8249. This includes private individuals who are charged as co-principals, accom-plices or accessories with the said public officers. In the instant case, respon-dent is being charged for violation of Section 3(g) of R.A. 3019, in conspiracy with then Secretary Enrile. Ideally, under the law, both respondent and Secre-tary Enrile should have been charged before and tried jointly by the Sandigan-bayan. However, by reason of the death of the latter, this can no longer be done. Nonetheless, for reasons already discussed, it does not follow that the SB is already divested of its jurisdiction over the person of and the case in-volving herein respondent. To rule otherwise would mean that the power of a court to decide a case would no longer be based on the law defining its juris-diction but on other factors, such as the death of one of the alleged offenders.Lastly, the issues raised in the present petition involve matters which are mere incidents in the main case and the main case has already been pending

for over nine (9) years. Thus, a referral of the case to the Regional Trial Court would further delay the resolution of the main case and it would, by no means, promote respondent's right to a speedy trial and a speedy disposition of his case.WHEREFORE, the petition is GRANTED. The Resolution of the Sandigan-bayan dated June 2, 2005, granting respondent's Motion to Quash, is hereby REVERSED and SET ASIDE. The Sandiganbayan is forthwith DIRECTED to proceed with deliberate dispatch in the disposition of Criminal Case No. 28090.SO ORDERED.

Republic of the PhilippinesSUPREME COURT

ManilaTHIRD DIVISION

G.R. No. 166920             February 19, 2007PACIFIC CONSULTANTS INTERNATIONAL ASIA, INC. and JENS PETER

HENRICHSEN, Petitioners, vs.

KLAUS K. SCHONFELD, Respondent.D E C I S I O N

CALLEJO, SR., J.:Before us is a Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court of the Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 76563. The CA decision reversed the Resolution of the National Labor Relations Commission (NLRC) in NLRC NCR CA No. 029319-01, which, in turn, affirmed the Decision of the Labor Arbiter in NLRC NCR Case No. 30-12-04787-00 dismissing the complaint of respondent Klaus K. Schonfeld.The antecedent facts are as follows:Respondent is a Canadian citizen and was a resident of New Westminster, British Columbia, Canada. He had been a consultant in the field of environ-mental engineering and water supply and sanitation. Pacicon Philippines, Inc. (PPI) is a corporation duly established and incorporated in accordance with the laws of the Philippines. The primary purpose of PPI was to engage in the business of providing specialty and technical services both in and out of the Philippines.2 It is a subsidiary of Pacific Consultants International of Japan (PCIJ). The president of PPI, Jens Peter Henrichsen, who was also the direc-

tor of PCIJ, was based in Tokyo, Japan. Henrichsen commuted from Japan to Manila and vice versa, as well as in other countries where PCIJ had business.In 1997, PCIJ decided to engage in consultancy services for water and sanita-tion in the Philippines. In October 1997, respondent was employed by PCIJ, through Henrichsen, as Sector Manager of PPI in its Water and Sanitation De-partment. However, PCIJ assigned him as PPI sector manager in the Philip-pines. His salary was to be paid partly by PPI and PCIJ.On January 7, 1998, Henrichsen transmitted a letter of employment to respon-dent in Canada, requesting him to accept the same and affix his conformity thereto. Respondent made some revisions in the letter of employment and signed the contract.3 He then sent a copy to Henrichsen. The letter of employ-ment reads:Mr. Klaus K. SchonfeldII-365 Ginger DriveNew Westminster, B.C.Canada V3L 5L5Tokyo 7January 1998Dear Mr. Schonfeld,Letter of EmploymentThis Letter of Employment with the attached General Conditions of Employ-ment constitutes the agreement under which you will be engaged by our Com-pany on the terms and conditions defined hereunder. In case of any discrep-ancies or contradictions between this Letter of Employment and the General Conditions of Employment, this Letter of Employment will prevail.You will, from the date of commencement, be ["seconded"] to our subsidiary Pacicon Philippines, Inc. in Manila, hereinafter referred as Pacicon. Pacicon will provide you with a separate contract, which will define that part of the present terms and conditions for which Pacicon is responsible. In case of any discrepancies or contradictions between the present Letter of Employment and the contract with Pacicon Philippines, Inc. or in the case that Pacicon should not live up to its obligations, this Letter of Employment will prevail.1. Project Country: The Philippines with possible short-term assignments in other countries.2. Duty Station: Manila, the Philippines.3. Family Status: Married.4. Position: Sector Manager, Water and Sanitation.5. Commencement: 1st October 1997.6. Remuneration: US$7,000.00 per month. The amount will be paid partly as a local salary (US$2,100.00 per month) by Pacicon and partly as an offshore salary (US$4,900.00) by PCI to bank accounts to be nominated by you.

A performance related component corresponding to 17.6% of the total annual remuneration, subject to satisfactory performance against agreed tasks and targets, paid offshore.7. Accommodation: The company will provide partly furnished accommodation to a rent including association fees, taxes and VAT not exceeding the Pesos equivalent of US$2,900.00 per month.8. Transportation: Included for in the remuneration.9. Leave Travels: You are entitled to two leave travels per year.10. Shipment of PersonalEffects: The maximum allowance is US$4,000.00.11. MobilizationTravel: Mobilization travel will be from New Westminster, B.C., Canada.This letter is send (sic) to you in duplicate; we kindly request you to sign and return one copy to us.Yours sincerely,Pacific Consultants InternationalJens Peter HenrichsenAbove terms and conditions acceptedDate: 2 March 1998(Sgd.)Klaus Schonfeldas annotated and initialed4

Section 21 of the General Conditions of Employment appended to the letter of employment reads:21 ArbitrationAny question of interpretation, understanding or fulfillment of the conditions of employment, as well as any question arising between the Employee and the Company which is in consequence of or connected with his employment with the Company and which can not be settled amicably, is to be finally settled, binding to both parties through written submissions, by the Court of Arbitration in London.5

Respondent arrived in the Philippines and assumed his position as PPI Sector Manager. He was accorded the status of a resident alien.As required by Rule XIV (Employment of Aliens) of the Omnibus Rules Imple-menting the Labor Code, PPI applied for an Alien Employment Permit (Permit) for respondent before the Department of Labor and Employment (DOLE). It appended respondent’s contract of employment to the applica-tion.1awphi1.netOn February 26, 1999, the DOLE granted the application and issued the Per-mit to respondent. It reads:Republic of the Philippines

Department of Labor & EmploymentNational Capital RegionALIEN EMPLOYMENT PERMITISSUED TO: SCHONFELD, KLAUS KURTDATE OF BIRTH: January 11, 1942 NATIONALITY: CanadianPOSITION: VP – WATER & SANITATIONEMPLOYER: PACICON PHILIPPINES, INC.ADDRESS: 27/F Rufino Pacific Towers Bldg., Ayala Ave., Makati CityP E R M I TISSUED ON: February 26, 1999 SIGNATURE OF BEARER:VALID UNTIL: January 7, 2000 (Sgd.)APPROVED: BIENVENIDO S. LAGUESMABy: MAXIMO B. ANITOREGIONAL DIRECTOR(Emphasis supplied)6

Respondent received his compensation from PPI for the following periods: February to June 1998, November to December 1998, and January to August 1999. He was also reimbursed by PPI for the expenses he incurred in connec-tion with his work as sector manager. He reported for work in Manila except for occasional assignments abroad, and received instructions from Henrich-sen.7

On May 5, 1999, respondent received a letter from Henrichsen informing him that his employment had been terminated effective August 4, 1999 for the rea-son that PCIJ and PPI had not been successful in the water and sanitation sector in the Philippines.8 However, on July 24, 1999, Henrichsen, by elec-tronic mail,9 requested respondent to stay put in his job after August 5, 1999, until such time that he would be able to report on certain projects and discuss all the opportunities he had developed.10 Respondent continued his work with PPI until the end of business hours on October 1, 1999.Respondent filed with PPI several money claims, including unpaid salary, leave pay, air fare from Manila to Canada, and cost of shipment of goods to Canada. PPI partially settled some of his claims (US$5,635.99), but refused to pay the rest.On December 5, 2000, respondent filed a Complaint11 for Illegal Dismissal against petitioners PPI and Henrichsen with the Labor Arbiter. It was docketed as NLRC-NCR Case No. 30-12-04787-00.In his Complaint, respondent alleged that he was illegally dismissed; PPI had not notified the DOLE of its decision to close one of its departments, which re-sulted in his dismissal; and they failed to notify him that his employment was terminated after August 4, 1999. Respondent also claimed for separation pay

and other unpaid benefits. He alleged that the company acted in bad faith and disregarded his rights. He prayed for the following reliefs:1. Judgment be rendered in his favor ordering the respondents to reinstate complainant to his former position without loss of seniority and other privileges and benefits, and to pay his full backwages from the time compensation was with held (sic) from him up to the time of his actual reinstatement. In the alter-native, if reinstatement is no longer feasible, respondents must pay the com-plainant full backwages, and separation pay equivalent to one month pay for every year of service, or in the amount of US$16,400.00 as separation pay;2. Judgment be rendered ordering the respondents to pay the outstanding monetary obligation to complainant in the amount of US$10,131.76 represent-ing the balance of unpaid salaries, leave pay, cost of his air travel and ship-ment of goods from Manila to Canada; and3. Judgment be rendered ordering the respondent company to pay the com-plainant damages in the amount of no less than US $10,000.00 and to pay 10% of the total monetary award as attorney’s fees, and costs.Other reliefs just and equitable under the premises are, likewise, prayed for.12

1awphi1.netPetitioners filed a Motion to Dismiss the complaint on the following grounds: (1) the Labor Arbiter had no jurisdiction over the subject matter; and (2) venue was improperly laid. It averred that respondent was a Canadian citizen, a tran-sient expatriate who had left the Philippines. He was employed and dismissed by PCIJ, a foreign corporation with principal office in Tokyo, Japan. Since re-spondent’s cause of action was based on his letter of employment executed in Tokyo, Japan dated January 7, 1998, under the principle of lex loci contrac-tus, the complaint should have been filed in Tokyo, Japan. Petitioners claimed that respondent did not offer any justification for filing his complaint against PPI before the NLRC in the Philippines. Moreover, under Section 12 of the General Conditions of Employment appended to the letter of employment dated January 7, 1998, complainant and PCIJ had agreed that any employ-ment-related dispute should be brought before the London Court of Arbitra-tion. Since even the Supreme Court had already ruled that such an agree-ment on venue is valid, Philippine courts have no jurisdiction.13

Respondent opposed the Motion, contending that he was employed by PPI to work in the Philippines under contract separate from his January 7, 1998 con-tract of employment with PCIJ. He insisted that his employer was PPI, a Philippine-registered corporation; it is inconsequential that PPI is a wholly-owned subsidiary of PCIJ because the two corporations have separate and distinct personalities; and he received orders and instructions from Henrich-sen who was the president of PPI. He further insisted that the principles of fo-

rum non conveniens and lex loci contractus do not apply, and that although he is a Canadian citizen, Philippine Labor Laws apply in this case.Respondent adduced in evidence the following contract of employment dated January 9, 1998 which he had entered into with Henrichsen:Mr. Klaus K. SchonfeldII-365 Ginger DriveNew Westminster, B.C.Canada V3L 5L5Manila 9 January, 1998Dear Mr. Schonfeld,Letter of EmploymentThis Letter of Employment with the attached General Conditions of Employ-ment constitutes the agreement, under which you will be engaged by Pacicon Philippines, Inc. on the terms and conditions defined hereunder.1. Project Country: The Philippines with possible assignments in other coun-tries.2. Duty Station: Manila, the Philippines.3. Family Status: Married.4. Position: Sector Manager – Water and Sanitation Sector.5. Commencement: 1 January, 1998.6. Remuneration: US$3,100.00 per month payable to a bank account to be nominated by you.7. Accommodation: The company will provide partly furnished accommodation to a rent including association fees, taxes and VAT not exceeding the Pesos equivalent of US$2300.00 per month.8. Transportation: Included for in the remuneration.9. Shipment of Personal The maximum allowance is US$2500.00 in Effects: connection with initial shipment of personal effects from Canada.10. Mobilization Travel: Mobilization travel will be from New Westminster, B.C., Canada.This letter is send (sic) to you in duplicate; we kindly request you to sign and return one copy to us.Yours sincerely,Pacicon Philippines, Inc.Jens Peter HenrichsenPresident14

According to respondent, the material allegations of the complaint, not peti-tioners’ defenses, determine which quasi-judicial body has jurisdiction. Sec-tion 21 of the Arbitration Clause in the General Conditions of Employment does not provide for an exclusive venue where the complaint against PPI for violation of the Philippine Labor Laws may be filed. Respondent pointed out

that PPI had adopted two inconsistent positions: it was first alleged that he should have filed his complaint in Tokyo, Japan; and it later insisted that the complaint should have been filed in the London Court of Arbitration.15

In their reply, petitioners claimed that respondent’s employer was PCIJ, which had exercised supervision and control over him, and not PPI. Respondent was dismissed by PPI via a letter of Henrichsen under the letterhead of PCIJ in Japan.16 The letter of employment dated January 9, 1998 which respondent relies upon did not bear his (respondent’s) signature nor that of Henrichsen.On August 2, 2001, the Labor Arbiter rendered a decision granting petitioners’ Motion to Dismiss. The dispositive portion reads:WHEREFORE, finding merit in respondents’ Motion to Dismiss, the same is hereby granted. The instant complaint filed by the complainant is dismissed for lack of merit.SO ORDERED.17

The Labor Arbiter found, among others, that the January 7, 1998 contract of employment between respondent and PCIJ was controlling; the Philippines was only the "duty station" where Schonfeld was required to work under the General Conditions of Employment. PCIJ remained respondent’s employer despite his having been sent to the Philippines. Since the parties had agreed that any differences regarding employer-employee relationship should be sub-mitted to the jurisdiction of the court of arbitration in London, this agreement is controlling.On appeal, the NLRC agreed with the disquisitions of the Labor Arbiter and affirmed the latter’s decision in toto.18

Respondent then filed a petition for certiorari under Rule 65 with the CA where he raised the following arguments:IWITH ALL DUE RESPECT, THE HONORABLE NATIONAL LABOR RELATIONS COMMISSION GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT AFFIRMED THE LABOR ARBITER’S DECISION CONSIDERING THAT:A. PETITIONER’S TRUE EMPLOYER IS NOT PACIFIC CONSULTANTS IN-TERNATIONAL OF JAPAN BUT RESPONDENT COMPANY, AND THERE-FORE, THE LABOR ARBITER HAS JURISDICTION OVER THE INSTANT CASE; ANDB. THE PROPER VENUE FOR THE PRESENT COMPLAINT IS THE ARBI-TRATION BRANCH OF THE NLRC AND NOT THE COURT OF ARBITRA-TION IN LONDON.IIWITH ALL DUE RESPECT, THE HONORABLE NATIONAL LABOR RELATIONS COMMISSION GRAVELY ABUSED ITS DISCRETION

AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT AFFIRMED THE DISMISSAL OF THE COMPLAINT CONSIDERING THAT PETITIONER’S TERMINATION FROM EMPLOYMENT IS ILLEGAL:A. THE CLOSURE OF RESPONDENT COMPANY’S WATER AND SANITA-TION SECTOR WAS NOT BONA FIDE.B. ASSUMING ARGUENDO THAT THE CLOSURE OF RESPONDENT COMPANY’S WATER AND SANITATION SECTOR WAS JUSTIFIABLE, PE-TITIONER’S DISMISSAL WAS INEFFECTUAL AS THE DEPARTMENT OF LABOR AND EMPLOYMENT (DOLE) AND PETITIONER WAS NOT NOTI-FIED THIRTY (30) DAYS BEFORE THE ALLEGED CLOSURE.19

Respondent averred that the absence or existence of a written contract of em-ployment is not decisive of whether he is an employee of PPI. He maintained that PPI, through its president Henrichsen, directed his work/duties as Sector Manager of PPI; proof of this was his letter-proposal to the Development Bank of the Philippines for PPI to provide consultancy services for the Construction Supervision of the Water Supply and Sanitation component of the World Bank-Assisted LGU Urban Water and Sanitation Project.20 He emphasized that as gleaned from Alien Employment Permit (AEP) No. M-029908-5017 is-sued to him by DOLE on February 26, 1999, he is an employee of PPI. It was PPI president Henrichsen who terminated his employment; PPI also paid his salary and reimbursed his expenses related to transactions abroad. That PPI is a wholly-owned subsidiary of PCIJ is of no moment because the two corpo-rations have separate and distinct personalities.The CA found the petition meritorious. Applying the four-fold test21 of deter-mining an employer-employee relationship, the CA declared that respondent was an employee of PPI. On the issue of venue, the appellate court declared that, even under the January 7, 1998 contract of employment, the parties were not precluded from bringing a case related thereto in other venues. While there was, indeed, an agreement that issues between the parties were to be resolved in the London Court of Arbitration, the venue is not exclusive, since there is no stipulation that the complaint cannot be filed in any other fo-rum other than in the Philippines.On November 25, 2004, the CA rendered its decision granting the petition, the decretal portion of which reads:WHEREFORE, the petition is GRANTED in that the assailed Resolutions of the NLRC are hereby REVERSED and SET ASIDE. Let this case be RE-MANDED to the Labor Arbiter a quo for disposition of the case on the merits.SO ORDERED.22

A motion for the reconsideration of the above decision was filed by PPI and Henrichsen, which the appellate court denied for lack of merit.23

In the present recourse, PPI and Henrichsen, as petitioners, raise the follow-ing issues:ITHE COURT OF APPEALS GRAVELY ERRED IN RULING THAT AN EMPLOYMENT RELATIONSHIP EXISTED BETWEEN PETITIONERS AND RESPONDENT DESPITE THE UNDISPUTED FACT THAT RESPONDENT, A FOREIGN NATIONAL, WAS HIRED ABROAD BY A FOREIGN CORPORATION, EXECUTED HIS EMPLOYMENT CONTRACT ABROAD, AND WAS MERELY "SECONDED" TO PETITIONERS SINCE HIS WORK ASSIGNMENT WAS IN MANILA.IITHE COURT OF APPEALS GRAVELY ERRED IN RULING THAT THE LABOR ARBITER A QUO HAS JURISDICTION OVER RESPONDENT’S CLAIM DESPITE THE UNDISPUTED FACT THAT RESPONDENT, A FOR-EIGN NATIONAL, WAS HIRED ABROAD BY A FOREIGN CORPORATION, EXECUTED HIS EMPLOYMENT CONTRACT ABROAD, AND HAD AGREED THAT ANY DISPUTE BETWEEN THEM "SHALL BE FINALLY SETTLED BY THE COURT OF ARBITRATION IN LONDON."24

Petitioners fault the CA for reversing the findings of the Labor Arbiter and the NLRC. Petitioners aver that the findings of the Labor Arbiter, as affirmed by the NLRC, are conclusive on the CA. They maintain that it is not within the province of the appellate court in a petition for certiorari to review the facts and evidence on record since there was no conflict in the factual findings and conclusions of the lower tribunals. Petitioners assert that such findings and conclusions, having been made by agencies with expertise on the subject matter, should be deemed binding and conclusive. They contend that it was the PCIJ which employed respondent as an employee; it merely seconded him to petitioner PPI in the Philippines, and assigned him to work in Manila as Sector Manager. Petitioner PPI, being a wholly-owned subsidiary of PCIJ, was never the employer of respondent.Petitioners assert that the January 9, 1998 letter of employment which re-spondent presented to prove his employment with petitioner PPI is of doubtful authenticity since it was unsigned by the purported parties. They insist that PCIJ paid respondent’s salaries and only coursed the same through petitioner PPI. PPI, being its subsidiary, had supervision and control over respondent’s work, and had the responsibilities of monitoring the "daily administration" of respondent. Respondent cannot rely on the pay slips, expenses claim forms, and reimbursement memoranda to prove that he was an employee of peti-tioner PPI because these documents are of doubtful authenticity.Petitioners further contend that, although Henrichsen was both a director of PCIJ and president of PPI, it was he who signed the termination letter of re-

spondent upon instructions of PCIJ. This is buttressed by the fact that PCIJ’s letterhead was used to inform him that his employment was terminated. Peti-tioners further assert that all work instructions came from PCIJ and that peti-tioner PPI only served as a "conduit." Respondent’s Alien Employment Permit stating that petitioner PPI was his employer is but a necessary consequence of his being "seconded" thereto. It is not sufficient proof that petitioner PPI is respondent’s employer. The entry was only made to comply with the DOLE requirements.There being no evidence that petitioner PPI is the employer of respondent, the Labor Arbiter has no jurisdiction over respondent’s complaint.Petitioners aver that since respondent is a Canadian citizen, the CA erred in ignoring their claim that the principlesof forum non conveniens and lex loci contractus are applicable. They also point out that the principal office, officers and staff of PCIJ are stationed in Tokyo, Japan; and the contract of employ-ment of respondent was executed in Tokyo, Japan.Moreover, under Section 21 of the General Conditions for Employment incor-porated in respondent’s January 7, 1998 letter of employment, the dispute be-tween respondent and PCIJ should be settled by the court of arbitration of London. Petitioners claim that the words used therein are sufficient to show the exclusive and restrictive nature of the stipulation on venue.Petitioners insist that the U.S. Labor-Management Act applies only to U.S. workers and employers, while the Labor Code of the Philippines applies only to Filipino employers and Philippine-based employers and their employees, not to PCIJ. In fine, the jurisdictions of the NLRC and Labor Arbiter do not ex-tend to foreign workers who executed employment agreements with foreign employers abroad, although "seconded" to the Philippines.25

In his Comment,26 respondent maintains that petitioners raised factual issues in their petition which are proscribed under Section 1, Rule 45 of the Rules of Court. The finding of the CA that he had been an employee of petitioner PPI and not of PCIJ is buttressed by his documentary evidence which both the La-bor Arbiter and the NLRC ignored; they erroneously opted to dismiss his com-plaint on the basis of the letter of employment and Section 21 of the General Conditions of Employment. In contrast, the CA took into account the evidence on record and applied case law correctly.The petition is denied for lack of merit.It must be stressed that in resolving a petition for certiorari, the CA is not pro-scribed from reviewing the evidence on record. Under Section 9 of Batas Pambansa Blg. 129, as amended by R.A. No. 7902, the CA is empowered to pass upon the evidence, if and when necessary, to resolve factual issues.27 If it appears that the Labor Arbiter and the NLRC misappreciated the evidence to such an extent as to compel a contrary conclusion if such evidence had

been properly appreciated, the factual findings of such tribunals cannot be given great respect and finality.28

Inexplicably, the Labor Arbiter and the NLRC ignored the documentary evi-dence which respondent appended to his pleadings showing that he was an employee of petitioner PPI; they merely focused on the January 7, 1998 letter of employment and Section 21 of the General Conditions of Employment.Petitioner PPI applied for the issuance of an AEP to respondent before the DOLE. In said application, PPI averred that respondent is its employee. To show that this was the case, PPI appended a copy of respondent’s employ-ment contract. The DOLE then granted the application of PPI and issued the permit.It bears stressing that under the Omnibus Rules Implementing the Labor Code, one of the requirements for the issuance of an employment permit is the employment contract. Section 5, Rule XIV (Employment of Aliens) of the Omnibus Rules provides:SECTION 1. Coverage. – This rule shall apply to all aliens employed or seek-ing employment in the Philippines and the present or prospective employers.SECTION 2. Submission of list. – All employers employing foreign nationals, whether resident or non-resident, shall submit a list of nationals to the Bureau indicating their names, citizenship, foreign and local address, nature of em-ployment and status of stay in the Philippines.SECTION 3. Registration of resident aliens. – All employed resident aliens shall register with the Bureau under such guidelines as may be issued by it.SECTION 4. Employment permit required for entry. – No alien seeking em-ployment, whether as a resident or non-resident, may enter the Philippines without first securing an employment permit from the Ministry. If an alien en-ters the country under a non-working visa and wishes to be employed there-after, he may only be allowed to be employed upon presentation of a duly ap-proved employment permit.SECTION 5. Requirements for employment permit applicants. – The applica-tion for an employment permit shall be accompanied by the following:(a) Curriculum vitae duly signed by the applicant indicating his educational background, his work experience and other data showing that he possesses technical skills in his trade or profession.(b) Contract of employment between the employer and the principal which shall embody the following, among others:1. That the non-resident alien worker shall comply with all applicable laws and rules and regulations of the Philippines;2. That the non-resident alien worker and the employer shall bind themselves to train at least two (2) Filipino understudies for a period to be determined by the Minister; and

3. That he shall not engage in any gainful employment other than that for which he was issued a permit.(c) A designation by the employer of at least two (2) understudies for every alien worker. Such understudies must be the most ranking regular employees in the section or department for which the expatriates are being hired to insure the actual transfer of technology.Under Section 6 of the Rule, the DOLE may issue an alien employment permit based only on the following:(a) Compliance by the applicant and his employer with the requirements of Section 2 hereof;(b) Report of the Bureau Director as to the availability or non-availability of any person in the Philippines who is competent and willing to do the job for which the services of the applicant are desired;(c) His assessment as to whether or not the employment of the applicant will redound to the national interest;(d) Admissibility of the alien as certified by the Commission on Immigration and Deportation;(e) The recommendation of the Board of Investments or other appropriate government agencies if the applicant will be employed in preferred areas of investments or in accordance with the imperative of economic development.Thus, as claimed by respondent, he had an employment contract with peti-tioner PPI; otherwise, petitioner PPI would not have filed an application for a Permit with the DOLE. Petitioners are thus estopped from alleging that the PCIJ, not petitioner PPI, had been the employer of respondent all along.We agree with the conclusion of the CA that there was an employer-employee relationship between petitioner PPI and respondent using the four-fold test. Jurisprudence is firmly settled that whenever the existence of an employment relationship is in dispute, four elements constitute the reliable yardstick: (a) the selection and engagement of the employee; (b) the payment of wages; (c) the power of dismissal; and (d) the employer’s power to control the em-ployee’s conduct. It is the so-called "control test" which constitutes the most important index of the existence of the employer-employee relationship–that is, whether the employer controls or has reserved the right to control the em-ployee not only as to the result of the work to be done but also as to the means and methods by which the same is to be accomplished. Stated other-wise, an employer-employee relationship exists where the person for whom the services are performed reserves the right to control not only the end to be achieved but also the means to be used in reaching such end.29 We quote with approval the following ruling of the CA:[T]here is, indeed, substantial evidence on record which would erase any doubt that the respondent company is the true employer of petitioner. In the

case at bar, the power to control and supervise petitioner’s work performance devolved upon the respondent company. Likewise, the power to terminate the employment relationship was exercised by the President of the respondent company. It is not the letterhead used by the company in the termination letter which controls, but the person who exercised the power to terminate the em-ployee. It is also inconsequential if the second letter of employment executed in the Philippines was not signed by the petitioner. An employer-employee re-lationship may indeed exist even in the absence of a written contract, so long as the four elements mentioned in the Mafinco case are all present.30

The settled rule on stipulations regarding venue, as held by this Court in the vintage case of Philippine Banking Corporation v. Tensuan,31 is that while they are considered valid and enforceable, venue stipulations in a contract do not, as a rule, supersede the general rule set forth in Rule 4 of the Revised Rules of Court in the absence of qualifying or restrictive words. They should be con-sidered merely as an agreement or additional forum, not as limiting venue to the specified place. They are not exclusive but, rather permissive. If the inten-tion of the parties were to restrict venue, there must be accompanying lan-guage clearly and categorically expressing their purpose and design that ac-tions between them be litigated only at the place named by them.32

In the instant case, no restrictive words like "only," "solely," "exclusively in this court," "in no other court save —," "particularly," "nowhere else but/except —," or words of equal import were stated in the contract.33 It cannot be said that the court of arbitration in London is an exclusive venue to bring forth any com-plaint arising out of the employment contract.Petitioners contend that respondent should have filed his Complaint in his place of permanent residence, or where the PCIJ holds its principal office, at the place where the contract of employment was signed, in London as stated in their contract. By enumerating possible venues where respondent could have filed his complaint, however, petitioners themselves admitted that the provision on venue in the employment contract is indeed merely permissive.Petitioners’ insistence on the application of the principle of forum non conve-niens must be rejected. The bare fact that respondent is a Canadian citizen and was a repatriate does not warrant the application of the principle for the following reasons:First. The Labor Code of the Philippines does not include forum non conve-niens as a ground for the dismissal of the complaint.34

Second. The propriety of dismissing a case based on this principle requires a factual determination; hence, it is properly considered as defense.35

Third. In Bank of America, NT&SA, Bank of America International, Ltd. v. Court of Appeals,36 this Court held that:

x x x [a] Philippine Court may assume jurisdiction over the case if it chooses to do so; provided, that the following requisites are met: (1) that the Philippine Court is one to which the parties may conveniently resort to; (2) that the Philippine Court is in a position to make an intelligent decision as to the law and the facts; and, (3) that the Philippine Court has or is likely to have power to enforce its decision. x x xAdmittedly, all the foregoing requisites are present in this case.WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. SP No. 76563 is AFFIRMED. This case is REMANDED to the La-bor Arbiter for disposition of the case on the merits. Cost against petitioners.SO ORDERED.