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Republic of the Philippines

National Capital Judical Region


METROPOLITAN TRIAL COURT
Makati City
PEOPLE OF THE
PHILIPPINES
- versus -

Crim. Case No. 385021


For: Serious Physical Injury

SAMMY ODENCIO and


FELIX LUPAZ
Accused,
x-----------------------------------------------x

Motion for Judicial Determination of Probable Cause


or to Otherwise Remand the Case for the Completion
of the Preliminary Investigation with Prayer for the
Deferment of Arraignment Proceedings
The Accused SAMMY ODENCIO and FELIX LUPAZ,
herein assisted by the Integrated Bar of the Philippines
(Makati Chapter) through undersigned counsel, most
respectfully state that:
1. On or about June 2015, they received a subpoena from
the Office of the City Prosecutor of Makati requiring
them to file their respective counter-affidavits along
with other supporting documents and affidavits of
witnesses, and to appear before the said City
Prosecutor on the 30th of June and 7th of July, 2015. The
subpoena was issued in NPS No. XV-05-IV-15F-2237
entitled, HENRY R. BINAG, Complainants versus EDNER

GEALAN et. al. Respondents, from which this case


originated.
2. The Accused failed to file the required counter-affidavits
and actively participate in the preliminary investigation
proceedings due to the lack of proper educational
attainment and understanding of the rules of law. This
is further aggravated by the lack of financial incapacity,
being indigents, to obtain the assistance of counsel.
3. On January 13, 2016, the Accused-Movants received the
Order from this Honorable Court notifying them of their
arraignment and pre-trial on April 19, 2016 at 8:30 in
the morning. After having sought the assistance of the
IBP Makati Chapter, the Accused now respectfully move
that
the
arraignment
be
deferred
pending
reinvestigation from the prosecutors office for them to
be allowed to file their respective counter-affidavit to
refute the claims made by herein complainant against
them.
4. Having shown that Accused did not have the capability
nor the knowledge to comprehend, let alone respond to
the orders of the Office of the City Prosecutor of Makati
about any Preliminary Investigation having been
scheduled thereon, it follows that they were denied of
their substantive right to due process. The
SUPREME COURT has enunciated thus:
xxx
This Court pointed out in Duterte v.
Sandiganbayan, [t]he purposes of a
preliminary investigation or a previous inquiry
of some kind, before an accused person is

placed on trial, is to secure the innocent


against hasty, malicious and oppressive
prosecution and to protect him from an open
and public accusation of a crime, from the
trouble, expenses and anxiety of a public
trial. It is also intended to protect the state
from having to conduct useless and
expensive trials. While the right is statutory
rather than constitutional in its fundament, it
is a component part of DUE PROCESS in
criminal justice. The right to have a
preliminary
investigation
conducted
before being bound over to trial for a criminal
offense and hence formally at risk of
incarceration or some other penalty, is not a
mere formal or technical right; IT IS A
SUBSTANTIVE
RIGHT.
To
deny
the
accuseds
claim
to
a
preliminary
investigation would be to deprive him of the
full measure of his RIGHT TO DUE
PROCESS.
5. Since
the
completion
of
the
Preliminary
Investigation in the above-captioned cases is
warranted and proper, the proceedings in the meantime
should be SUSPENDED, conformably to relevant
pronouncements of the High Court, as follows:
xxx
The right of a person to preliminary
investigation is recognized by the law and
is governed by the Rules of Court. However,
the failure to accord this right does not ipso
facto result in the dismissal of the

information; the case is merely SUSPENDED


and the prosecutor directed to conduct
the proper investigation.
xxx
Furthermore, it has been held that responsibility for the
absence of a preliminary investigation does not go to the
jurisdiction of the court but merely to the regularity of the
proceedings. We reiterate the following ruling of the Court
in People v. Gomez:
If
there
were
no
preliminary
investigations and the defendants, before
entering their plea, invite the attention of the
court to their absence, the court, instead of
dismissing the information, should conduct
such investigation, order the fiscal to
conduct it or remand the case to the inferior
court so that the preliminary investigation
may be conducted.
6. Herein
Accused
respectfully
requests
this
Honorable Court to take a closer look into the
evidence adduced, to wit:
a. The Private Complainants statement of facts
are filled with falsehoods and deception
which he made under oath. Private
Complainant lied when he indicated that he
has no obligation to Felix Lupaz. Furthermore,
the affidavits of
b. The truth is that Felix Lupaz went home with
his wife after the verbal argument between
him and Henry Binag ceased.

c.

The physical altercation happened only


between Edner Gealan and Henry Binag,
when the former acted in self-defense after
the Private Complainant, being under the
influence of alcohol, threw an initial punch
against Edner Gealan. Sammy Odenso, and
Mark Laureta were at the scene merely to
pacify the situation.

d. Contrary to the claims of the Complainant


that he has no prior obligations to Feliz
Lupaz, he was in fact a former tenant leasing
a space at a residence owned by the niece of
Felix Lupaz and Amelia Lupaz located along
Guiho St. Cembo, Makati City. Felix Lupaz and
Amelia Lupaz were assigned as caretakers of
the property. Attached herein is a copy of the
record of tenants staying in the Lupaz
Residence handwritten by Amelia Lupaz
herself marked as Annex A.
e. Private Complainant, during the period which
he resided in the said residence, persistently
refused to comply with his obligation to pay
rent and corresponding electric bills for a
span three months that Amelia Lupaz was not
the owner of the house.
f. On July 29, 2013, Amelia Lupaz was forced to
file a case against them in the Office of the
Barangay Council in Barangay 25, Cembo,
Makati City. Private Complainant evaded
appearance despite several summons upon
him by the Barangay to appear before its
office. Attached herein is a copy of the
complaint filed by Amelia Lupaz against

Henry Binag marked as Annex B.


g. Private Complainant eventually left the
premises without paying his outstanding
obligations to Felix Lupaz and Amelia Lupaz.
h. On November 30, 2014, the Accused went to
a lugawan across their residence where they
saw the Private Complainant having dinner
and drinking alcohol. Felix Lupaz was invited
to have a drink with him but the former
refused.
i. Felix Lupaz then cordially reminded the
Complainant of the outstanding debt
representing rental fees and electricity bills
which the latter has yet to satisfy. The
Complainant vigorously denied the existence
of his debt. Both parties stood and voices
were raised against each other. Edner Gealan
approached Felix and the Complainant in an
attempt to prevent further altercations.
j. Amelia Lupaz and Edner Gealan then took
Felix Lupaz home. Amelia Lupaz thereafter
padlocked the gate and prevented the latter
from coming out.
k. Edner Gealan, on his way home, padlocked
l. Accused, through counsel,
PRAYER
WHEREFORE, the Accused respectfully pray that the
case be remanded to the Office of the City Prosecutor for

the reception of their counter-affidavits and the completion


of the Preliminary Investigation.
The accused further pray that in the meantime, the
scheduled arraignment be deferred until after the City
Prosecutor would have resolved the complaint after having
evaluated the counter-affidavits of the accused.

The accused pray for other reliefs which may be just


and equitable.
Makati City, 11 April 2016

GORDON DARIO REYES BUTED


HOCSON VIADO & BLANCO LAW
OFFICES
Counsel for Accused-Movant
6/F W Global Center,
30th and 9th, Bonifacio High Street
Bonifacio Global City
1634 Philippines
+63 2 8691317 / +63 2 553 2894
By:
JUAN ORENDAIN P. BUTED
Attorneys Roll No. 36417
TR No. A-2791479 / 1.08.16 / Taguig
IBP (Lifetime) No. LRN-02299/ Makati
MCLE Compliance No. IV-0021550 / July 31, 2013
0917-5389564
Copy Furnished

_____________________
Office of the City Prosecutor Makati
___________________________
(private complainant)

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