minucher v. CA 214 SCRA 242 (1992)

MINUCHER v. CA (September 24, 1992)
Petitioner: KHOSROW MINUCHER
Respondents: CA & ARTHUR W. CALZO, JR.
Nature: PETITION for review of the decision of the Court of Appeals
Ponente: DAVIDE, JR., J.

1. CALZO FRAMES UP MINUCHER FOR POSSESSION OF HEROIN. Calzo, an agent of the Drug Enforcement Administration of Department of Justice of the USA ordered from Minucher, a labor attaché of the Iran Embassy in Manila Iranian were introduced by a common associate, Inigo. Calzo offered to help Minucher with his problem with his family’s US visas for a fee of $2,000. Calzo also found buyers of certain Iranian goods which Calzo was selling such as silk and carpets. So, Calzo came to the residence of Minucher and asked to be entrusted with a pair of Persian silk carpets with a floor price of $24,000 each, for which he had a buyer. The following day, Calzo returned to Minucher’s residence, took the carpets and gave the latter $24,000; after about an hour, Calzo returned, claimed that he had already made arrangements with his contacts at the American Embassy concerning the visas and asked for $2,000. He was given this amount. It turned out, however, that Calzo had prepared an elaborate plan to frame-up Minucher for alleged trafficking; both were falsely arrested by Calzo and some American and Filipino police officers, and were taken to Camp Crame in their underwear. Calzo and his companions took petitioner’s 3 suitcases containing various documents, his wallet containing money and the keys to his house and car, as well as the $24,000 which Calzo had earlier delivered to him. Minucher and his companion, Torabian were handcuffed together for 3 days and were not given food and water; they were asked to confess to the possession of heroin or else they would be jailed or even executed by Iranian terrorists. Consequently, the two were charged for the violation of Section 4 of RA. No. 6425 (Dangerous Drugs Act of 1972) before the Pasig RTC. They were, however, acquitted by the said court. Calzo testified for the prosecution in the said case.

2. COMPLAINT FOR DAMAGES. Minucher files a complaint for damages against Calzo and alleges that Calzo falsely testified against him in the criminal case. Minucher also avers that charges of unlawful arrest, robbery and estafa or swindling have already been filed against the Calzo. He therefore prays for actual and compensatory damages of not less than P480,000 ($24,000) representing the fair market value of the Persian silk carpet and $2,000 representing the refund of the amount he had given for the visas; moral damages in the amount of P5 million; exemplary damages in the sum of P100,000 and attorney’s fees of at least P200,000 to answer for litigation expenses incurred for his defense in the criminal case and for the prosecution of the civil case,

3. SPECIAL APPEARANCE TO QUASH SUMMONS. Calzo’s counsel, the law firm LUNA, SISON AND MANAS, filed a Special Appearance and Motion alleging therein that since Calzo is an agent of the Drug Enforcement Administration of the USA, and the acts and omissions complained of were performed by him in the performance of official functions, the case is now under study by the Departments of State and Justice in Washington, D.C. for the purpose of determining what defenses would be appropriate; said counsel also prayed that the period to answer be extended. Then, counsel filed a Special Appearance to Quash Summons alleging therein that: The action being it personal action for damages arising from an alleged tort, the defendant being outside the Philippines and not being a resident of the Philippines, Defendant is beyond the processes of this court,” and praying that the summons issued be quashed. The trial court denied the motion in its Order. Unsatisfied with the said order, Calzo filed a petition for certiorari with the CA. In its Decision, the CA dismissed the petition for lack of merit. Calzo elevated the case to the SC but was dismissed due to non-compliance with par 2 of Circular No. 1-88 and its failure to show that the CA had committed any reversible error.

4. CALZO FILED HIS ANSWER. Thereafter, Calzo filed with the trial court his Answer in the civil case wherein he denies the material allegations in the complaint, sets forth the following Affirmative Defenses: “The Complaint fails to state a cause of action: in having Minucher and Torabian arrested and detained at Camp Crame; a quantity of heroin, seized from plaintiff by Philippine police authorities and in seizing the money used in the drug transaction, defendant acted in the discharge of his official duties or otherwise in the performance of his official functions as agent of the Drug Enforcement Administration, U.S. Department of Justice and interposes a counterclaim for P100,000 to answer for attorney’s fees and the expenses of litigation.”

5. CALZO’S MTD BASED ON A DIPLOMATIC NOTE. Calzo filed a Motion to Dismiss the case on the ground that as per the copy of Diplomatic Note No. 414 issued by the Embassy of the United States of America,13 dated 29 May 1990 and certified to be a true and faithful copy of the original by one Donald K. Woodward, Vice Consul of the United States of America on 11 June 1990, the Embassy advised the Department of Foreign Affairs of the Republic of the Philippines that:

“x x x Arthur W. Scalzo, was a member of the diplomatic staff of the United States diplomatic mission from his arrival in the Philippines on October 14, 1985 until his departure on August 10, 1988. x x x
x x x in May 1986, with the cooperation of Philippine law enforcement officials and in the exercise of his functions as a member of the mission, Mr. Scalzo investigated Mr. Khosrow Minucher, the plaintiff in the aforementioned case for allegedly trafficking in a prohibited drug. It is this investigation which has given rise to the plaintiff’s complaint. The Embassy takes note of the provisions of Article 39(2) of the Vienna Convention on Diplomatic Relations, which provides that Mr. Scalzo retains immunity from civil suit for sets performed in the exercise of his functions, as is the caw here, even though he has departed (sic) the country.”

The trial court issued an order denying the motion for being “devoid of merit.”

6. CA DISMISSED CASE. Calzo then filed with the CA a petition for certiorari. CA promulgated a Decision dismissing the case due to the trial court’s lack of jurisdiction over the person of the defendant because the latter possessed diplomatic immunity. MR denied because: “When therefore Mr. Scalzo testified in the Criminal Case against Khosrow Minucher it was in connection with his official functions as an agent of the Drug Enforcement Administration of the United States and member (sic) of the American Mission charged with cooperating with the Philippine law enforcement agency. He therefore, enjoys immunity from criminal and civil jurisdiction of the receiving State under Article 31 of the Vienna Convention on Diplomatic Relations.” Hence, this petition for review under Rule 45 of the Rules of Court.

ISSUE: WON a complaint for damages should be dismissed on the sole basis of a statement contained in a Diplomatic Note, belatedly issued after an answer to the said complaint had already been filed, that the defendant was a member of the diplomatic staff of the United States Diplomatic Mission in the Philippines at the time the cause of action accrued?
HELD: NO.

7. CORRECT GROUND TO DISMISS: FAILURE TO STATE A COA. While the trial court correctly denied the motion to dismiss, the CA gravely abused its discretion in dismissing the civil case on the basis of an erroneous assumption that simply-because of the Diplomatic Note, the private respondent is clothed with diplomatic immunity, thereby divesting the trial court of jurisdiction over his person. It may at once be stated that even if the Calzo enjoys diplomatic immunity, a dismissal of the case cannot be ordered on the ground of lack of jurisdiction over his person, but rather for lack of a cause of action because even if he committed the imputed act and could have been otherwise made liable therefor, his immunity would bar any suit against him in connection therewith and would prevent recovery of damages arising therefrom.

8. COURT ACQUIRED JURISDICTION OVER CALZO. Jurisdiction over the person of the defendant is acquired either by his voluntary appearance or by the service of summons upon him. While in the instant case, private respondent’s counsel filed, on 26 October 1988, a motion to quash summons because being outside the Philippines and being a non-resident alien, he is beyond the processes of the court, which was properly denied by the trial court, he had in effect already waived any defect in the service of the summons by earlier asking, on 2 occasions, for an extension of time to file an answer, and by ultimately filing an Answer with Counterclaim. There is no question that the trial court acquired jurisdiction over the person of the private respondent.

9. THE CASE SHOULD NOT HAVE BEEN DISMISSED. The complaint for damages filed by the Minucher still cannot be peremptorily dismissed. Said complaint contains sufficient allegations which indicate that the private respondent committed the imputed acts in his personal capacity and outside the scope of his official duties and functions. As described in the complaint, he committed criminal acts for which he is also civilly liable. In the Special Appearance to Quash Summons earlier alluded to, an the other hand, private respondent maintains that the claim for damages arose “from an alleged tort.” Whether such claim arises from criminal acts or from tort, there can be no question that private respondent was sued in his personal capacity for acts committed outside his official functions duties. In the decision acquitting petitioner in the criminal case involving the violation of the Dangerous Drugs Act, copy of which is attached to his complaint for damages and which must be deemed as an integral part thereof, the trial court gave full credit to petitioner’s theory that he was a victim of a frame-up instigated by the private respondent. Thus, there is a prima facie showing in the complaint that indeed private respondent could be held personally liable for the acts committed beyond his official functions or duties.

10. REITERATED DOCTRINE IN SHAUF. In Shauf vs. Court of Appeals, after citing pertinent authorities, this Court ruled: “The aforecited authorities are clear on the matter. They state that the doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in his private and personal capacity as an ordinary citizen. The cloak of protection afforded the officers and agents of the government is removed the moment they are sued in their individual capacity. This situation usually arises where the public official acts without authority or in excess of the powers vested in him. It is a well-settled principle of law that a public official may be liable in his personal private capacity for whatever damage he may haw mused by his act done with malice and in bad faith, or beyond the scope of his authority or jurisdiction (Dumlao vs. Court of Appeals, et al., 114 SCRA 247 [1982]).”

11. ARTICLE 31 OF THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS admits of exceptions. It reads:
“I. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction except in the case of an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State, outside his official functions. (Emphasis supplied).

12. NO EVIDENCE TO PROVE HE ACTED IN HIS OFFICIAL CAPACITY. There is of course the claim of private respondent that the act imputed to him were done in his official capacity. Nothing supports this self-serving claim other than the so-called Diplomatic Note. In short, insofar as the records are concerned, Calzo did not come forward with evidence to prove that indeed, he had acted in his official capacity. It does not appear that an actual hearing on the motion to dismiss was conducted and that Calzo offered evidence in support thereof. Thus, it is apropos to quote what this Court stated in United States of America vs. Guinto:

“But even as we are, certain that the individual petitioners in G.R. No. 80018 were acting in the discharge of their official functions, we hesitate to make the same conclusion in G.R. No. 80258. The contradictory factual allegations in this case deserve in our view a closer study of what actually happened to the plaintiffs. The record is too meager to indicate if the defendants were really discharging their official duties or had actually exceeded their authority when the incident in question occurred. Lacking this information, this Court cannot directly decide this case. The needed inquiry must first be made by the lower court so it may assess and resolve the conflicting claims of the parties on the basis of the evidence that has yet to be presented at the trial. Only after it shall have determined in what capacity the petitioners were acting at the time of the incident in question will this Court determine, if still necessary, if the doctrine of state immunity is applicable.”

It may be mentioned in this regard that Calzo himself, in his Pre-trial Brief, unequivocally states that he would present documentary evidence consisting of DEA records on his investigation and surveillance of plaintiff and on his position and duties as DEA special agent in Manila. Having thus reserved his right to present evidence in support of his position, which is the basis for the alleged diplomatic immunity, the barren self-serving claim in the belated motion to dismiss cannot be relied upon for a reasonable, intelligent and fair resolution of the issue of diplomatic immunity.

The public respondent then should have sustained the trial court’s denial of the motion to dismiss. Verily, such should have been the most proper and appropriate recourse. It should not have been overwhelmed by the self-serving Diplomatic Note whose belated issuance is even suspect and whose authenticity has not yet been proved. The undue haste with which the CA yielded to the private respondent’s claim is arbitrary.

DISPOSITION. WHEREFORE, the challenged decision of the CA is SET ASIDE and the Order of the Regional Trial Court of Manila denying private respondent’s Motion to Dismiss is hereby REINSTATED.