Drilon vs. Court of Appeals; G.R. No. 107019. March 20, 1997.


In a letter-complaint to Secretary of Justice Franklin Drilon, General Renato de Villa who was then Chief of Staff of the AFP, requested DOJ to order the investigation of several individuals named therein, including private respondent Adaza, for their alleged participation in the failed December 1989 coup d’etat. The complaint is based on the affidavit.

There was a preliminary inquiry made by Special Composite Team of Prosecutors created by the DOJ finding that there is a probable cause to hold Adaza et al for trial for the crime of REBELLION WITH MURDER AND FRUSTRATED MURDER. Their Resolution became the basis for the filing of information.

Feeling aggrieved by the institution of proceedings against him, Adaza filed a complaint for damages before the RTC of Quezon City. In his complaint, Adaza charged petitioners with engaging in a deliberate, willful and malicious experimentation by filing against him a charge of rebellion complexed with murder and frustrated murder when petitioners, according to Adaza, were fully aware of the non-existence of such crime in the statute books.

Petitioners filed a Motion to Dismiss but it was denied.

Petitioners filed a motion for certiorari  under Rule 65 before the Court of Appeals alleging grave abuse of discretion on the part of the respondent Judge in ruling that sufficient cause of action exists to warrant a full-blown hearing of the case filed by Adaza and thus denying petitioners’ Motion to Dismiss. CA denied the petition and ordered the respondent judge to preceed with the trial.

Petitioner filed with SC to exercise its power of review under Rule 45 of the Revised Rules of Court.

SC dismissed the petition for failure to comply with the requirement on the payment of the prescribed docketing fees.

The SC issued TRO enjoining respondent Judge from further proceeding with Civil Case No. Q-90-6073 until further orders from this Court.

Respondent Adaza maintains that his claim before the trial court was merely a suit for damages based on tort by reason of petitioners’ various malfeasance, misfeasance and nonfeasance in office, as well as for violation by the petitioners of Section 3(e) of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. It was not a suit for malicious prosecution.

Hence this petition.



Yes. The complaint filed by Adaza is one for malicious prosecution against the petitioners for the latter’s filing of the charge against him of rebellion with murder and frustrated murder. An An examination of the records would show that this latest posture as to the nature of his cause of action is only being raised for the first time on appeal. Nowhere in his complaint filed with the trial court did respondent Adaza allege that his action is one based on tort or on Section 3(e) of Republic Act No. 3019. Such a change of theory cannot be allowed. When a party adopts a certain theory in the court below, he will not be permitted to change his theory on appeal, for to permit him to do so would not only be unfair to the other party but it would also be offensive to the basic rules of fair play, justice and due process. Any member of the Bar, even if not too schooled in the art of litigation, would easily discern that Adaza’s complaint is no doubt a suit for damages for malicious prosecution against the herein petitioners. Unfortunately, however, his complaint filed with the trial court suffers from a fatal infirmity—that of failure to state a cause of action—and should have been dismissed right from the start. We shall show why.

The term malicious prosecution has been defined in various ways. In American jurisdiction, it is defined as: Instituted with intention of injuring defendant and without probable cause, and which terminates in favor of the person prosecuted. For this injury an action on the case lies, called the action of malicious prosecution.

In Philippine jurisdiction, it has been defined as:

“An action for damages brought by one against whom a criminal prosecution, civil suit, or other legal proceeding has been instituted maliciously and without probable cause, after the termination of such prosecution, suit, or other proceeding in favor of the defendant therein. The gist of the action is the putting of legal process in force, regularly, for the mere purpose of vexation or injury

The statutory basis for a civil action for damages for malicious prosecution are found in the provisions of the New Civil Code on Human Relations and on damages particularly Articles 19, 20, 21, 26, 29, 32, 33, 35, 2217 and 2219 (8).18 To constitute malicious prosecution, however, there must be proof that the prosecution was prompted by a sinister design to vex and humiliate a person, and that it was initiated deliberately by the defendant knowing that his charges were false and groundless. Concededly, the mere act of submitting a case to the authorities for prosecution does not make one liable for malicious prosecution.19 Thus, in order for a malicious prosecution suit to prosper, the plaintiff must prove three (3) elements: (1) the fact of the prosecution and the further fact that the defendant was himself the prosecutor and that the action finally terminated with an acquittal; (2) that in bringing the action, the prosecutor acted without probable cause; and (3) that the prosecutor was actuated or impelled by legal malice, that is by improper or sinister motive.20 All these requisites must concur.

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