G.R. No.
112283 August 30, 1994 In an order dated April 15, 1993, Presiding Judge Lopez ruled that
EVELYN ABEJA, petitioner,
vs. JUDGE FEDERICO TAÑADA, Regional Trial Court of Lucena
City, Branch 58, and ROSAURO RADOVAN (deceased) *,
respondents.
Roger E. Panotes for petitioner.
Antonio P. Relova for Conrado de Rama.
Eduardo R. Santos collaborating counsel for private respondent.
BIDIN, J.:
In this petition for certiorari, petitioner seeks the annulment of the orders
dated September 21, 1992 and October 18, 1993 issued by respondent Judge
Federico Tañada which decreed, among others, the revision of some 36
precincts contained in the counter-protest filed by respondent Radovan. The
said orders were issued by respondent judge in resolving petitioner/
protestant's "Motion to Determine Votes, to Proclaim Winner and to Allow
Assumption of Office" dated August 27, 1993.
The antecedent facts of the case are as follows:
Petitioner Evelyn Abeja and private respondent Rosauro Radovan (deceased)
were contenders for the office of municipal mayor of Pagbilao, Quezon, in the
May 11, 1992, national elections.
Based on the official returns of the Municipal Board of Canvassers for the
said municipality, private respondent was credited with 6,215 votes as against
petitioner's 5,951 votes.
Soon after the proclamation of private respondent, petitioner filed an election
contest, docketed as Election Case No. 92-1, entitled "Evelyn Abeja vs.
Rosauro Radovan" with the Regional Trial Court of Lucena City. The protest
covered twenty-two (22) precincts.
On June 5, 1992, private respondent filed an Answer with a Counter-Protest
of the results in thirty-six (36) precincts.
During the pre-trial, private respondent's counsel filed a motion praying that
the 36 counter-protested precincts be revised only if it is shown after
completion of the revision of the 22 protested precincts that petitioner leads
by a margin of at least one (1) vote. The trial court declared discussion on the
matter to be premature (TSN, July 6, 1992, pp. 8-12; Rollo, p. 148). The
revision of the ballots covering 22 protested precincts was completed in
September 1992. Thereafter, petitioner urged private respondent to
commence the revision of the 36 counter-protested precincts by praying the
necessary fees for the purpose. Private respondent refused.
In view thereof, petitioner moved that the counter-protest of private
respondent be considered withdrawn. Private respondent opposed the
motion and reiterated that the ballots of the 36 counter-protested precincts
should only be revised and recounted if it is shown after the revision of the
contested ballots of the 22 precincts that petitioner leads by at least one (1)
vote.
Petitioner filed another manifestation and motion on September 29, 1992,
praying that the counter-protest be considered withdrawn from the time the
final report of the Board of Revisors is submitted to the court for approval.
The then presiding Judge, Hon. Ludovico Lopez, did not rule on the
aforementioned motions but, according to petitioner, he (Judge Lopez)
declared during a hearing in October 1992 that once a ruling is made on the
contested ballots of the 22 protested precincts, he will not allow further
revision of ballots.
By April 1993, all pending incidents including the report of the Board of
Revisors as well as petitioner's formal offer of evidence were considered
submitted for resolution without private respondent having caused the
revision of the ballots in the 36 counter-protested precincts.
"(p)rotestant's offer of evidence as well as the protestee's objections thereto
are now submitted for the Court's resolution" (Rollo, p. 61).
On June 13, 1993, private respondent Rosauro Radovan died. He was
substituted by Vice-Mayor Conrado de Rama and, surprisingly, by his
surviving spouse, Ediltrudes Radovan.
On July 13, 1993, private respondents de Rama and Radovan filed a
Manifestation seeking a prompt resolution of all pending incidents.
On August 12, 1993, the trial court issued an order stating that "(c)ounsels for
both parties having signified to this Court that they are submitting the
motion to resolve without further argument. This motion being a motion to
resolve, the Court hereby informs the parties that pending matters submitted
for resolution will be duly resolved on or before August 20, 1993" (Rollo, p.
143).
Shortly thereafter, Judge Lopez was reassigned to the Regional Trial Court of
Kalookan City. Before transferring to his new post, however, Judge Lopez
issued an order dated August 18, 1993 which contained his ruling in each of
the contested ballots in the 22 contested precincts and the reasons therefor.
In the said order, Judge Lopez emphasized that "in ruling on the various
objections lodged by both parties during the revision proceedings, the
originals of the contested ballots in the ballot boxes were subjected to careful
scrutiny in the seclusion of the Court's chamber" (Rollo, p. 161). Nonetheless,
the ruling did not contain a summation of the exact number of votes to be
credited to each of the parties, or a declaration of the winner in the election
protest for that matter.
On August 27, 1993, petitioner filed a "Motion to Determine Votes, To
Proclaim Winner and to Allow Assumption of Office" considering that based
on her own computation of revised ballots ruled upon by Judge Lopez, she
led private respondent by a margin of 281 votes.
Private respondents filed a Motion to Correct the order dated August 18,
1993, issued by Judge Lopez as well as oppositions to the motion of
petitioner. Respondents claim that petitioner's "Motion to Proclaim Winner"
is premature since the 36 counter-protested precincts are yet to be revised.
In an order dated September 21, 1993, herein respondent Judge Federico
Tañada, who succeeded Judge Lopez, denied the "Motion to Determine
Votes, to Proclaim Winner and to Allow Assumption of Office" filed by
petitioner. Respondent judge ruled that petitioner's motion was indeed
premature on the ground that until after the 36 counter-protested precincts
have been revised, the court could not render a valid decision.
On October 18, 1993, respondent judge issued another order denying
petitioner's motion for reconsideration and directed the revision committee
to conduct a revision of the results of the 36 counter-protested precincts
scheduled on November 10, 1993.
These orders are the subject of this petition filed on November 8, 1993.
As prayed for by petitioner, the Court issued a temporary restraining order
on November 17, 1993, enjoining respondents from continuing with the
revision of the ballots in the 36 counter-protested precincts. It appears,
however, that the restraining order was served on November 19, 1993, after
the revision committee had completed revising 11 ballot boxes.
The sole issue to be resolved in this case is whether or not private
respondents should be allowed to proceed with the revision of the 36
precincts subject of the counter-protest.
It is clear from the records that Judge Lopez failed to issue a definitive ruling
on this specific procedural issue raised by the parties, which this Court must
now provide.
Although petitioner claims that Judge Lopez issued a warning to private
respondent to the effect that he (private respondent) shall not be allowed to
cause the revision of the counter-protested precincts after the revision of the
protested precincts is completed and ruled upon, she fails to cite a specific
oral or written order of Judge Lopez containing such warning or at least the
date and circumstances of the hearing in which the said warning was issued.
Consequently, the alleged warning issued by Judge Lopez is unsubstantiated
and must therefore be disregarded.
Page 1 of 14

Coming now to the merits of the case, petitioner contends that the revision of
the counter-protested precincts filed by private respondent has already been
abandoned by his failure to pursue the same, right after the revision of the 22
protested precincts. Petitioner also argue that the case was deemed
submitted for decision upon submission by the Board of Revisors of the
Report on the Revision of the 22 protested precincts.
In the instant case, petitioner, as protestant below, completed the revision of
ballots in the 22 protested precincts in September 1992 and her presentation
of evidence in April 1993. Likewise, the Board of Revisors had submitted its
report and the trial court issued a ruling dated August 18, 1993 on the said
revision. Given this state of the proceedings, the question to be resolved is
whether respondent may still be allowed to commence the revision of the
counter-protested precincts or should he be deemed to have waived his right
to present his own evidence, i.e., the revision of the counter-protested
precincts after stubbornly refusing to do so.
Petitioner argues that while the sequence in the presentation of evidence may
be altered for special reasons, the applicable rules of procedure do not allow
presentation of evidence after the court has already rendered a decision.
Clearly, petitioner considers the August 18, 1993 Order of Judge Lopez to be
the "decision" on the case although the order did not contain a summation of
the total votes credited to each of the parties or a declaration of the winner in
the election protest.
Petitioner objects to the stand taken by private respondent on the procedure
to be followed for being "unprocedural" in the sense that a decision rendered
on the election protest would be subject to another decision for the counter-
protest. It is further argued that since the 36 counter-protested precincts
were already under the jurisdiction of the trial court, the same should have
been revised unconditionally and should not have been subjected to the
whim and caprice of the private respondent.
The petition is impressed with merit.
Considering that this petition involves an election protest heard by a regional
trial court, the Comelec Rules of Procedure are controlling.
In view of the fact that the subject election contest was filed on May 26, 1992,
Section 2, Rule 17 and Section 11, Rule 35 of the aforementioned Comelec
rules are applicable. Rule 17 treats of Hearings whereas Rule 35 treats of
Election Contests Before Courts of General Jurisdiction. *
Section 2, Rule 17 provides, in part:
Sec. 2. Order of hearing. — Unless the Commission or the Division, as the
case may be, for special reasons, directs otherwise, the order of hearing shall
be as follows:
(a) The petitioner or protestant shall present evidence on his part;
(b) The protestant-in-intervention, if any, shall then offer evidence in
support of his defense or counter-protest, if any;
(c) The respondent or protestee shall then offer evidence in support of
his defense or counter-protest, if any;
It thus appears from the foregoing rule that the petitioner/protestant and the
respondent/protestee shall present their evidence upon their original case in
succession in accordance with the order or sequence provided therein.
On the other hand, Section 11, Rule 35 provides:
Sec. 11. Presentation and reception of evidence. — The
presentation and reception of evidence in election contests shall be made in
accordance with Section 2 of Rule 17 of these Rules, but the same shall be
completed within thirty (30) days from the date of the commencement
thereof.
The record shows that the revision of ballots in the 22 protested precincts
was completed sometime in September 1992. Judge Lopez issued a ruling on
the said revision almost a year later, or on August 18, 1993.
In the interim, private respondent failed to commence the revision of the
ballots in the counter-protested precincts, stubbornly maintaining the
position that said precincts should be revised only if it is shown after the
revision that petitioner leads private respondent by at least one (1) vote. No
law or rule authorizes such a procedure. Consequently, private respondent
must be deemed to have waived or abandoned his counter-protest.
The applicable Comelec rules provide for the presentation of evidence by the
parties in succession in the order or sequence provided under Sec. 2, rule 17
(Comelec Rules) which must be submitted within a reasonable time, if not
immediately after the revision of the precincts covered by the protest proper.
By insisting that the counter-protested precincts should be revised only if it is
shown after the revision of the protested precincts that petitioner, his
opponent, leads by at least one (1) vote, private respondent is adopting a self-
serving rule without legal sanction calculated to unduly prolong the litigation.
Furthermore, it is readily apparent from the provisions of the applicable
Comelec Rules that the court shall render its decision after both parties shall
have presented their respective evidence. Nowhere in the said provisions is it
indicated that presentation of evidence by the protestee may continue after
the court has ruled on the evidence of the protestant and determine the
number of votes obtained by the latter. Otherwise, it would be possible for
the protestee to prolong the protest and render it moot by expiration of the
term of office contested.
There is likewise merit to petitioner's claim that private respondent is guilty
of laches, which, in a general sense, is a failure or neglect, for an
unreasonable and unexplained length of time, to do that which, by exercising
due diligence could or should have been done earlier; it is negligence or
omission to assert a right within a reasonable length of time, warranting a
presumption that a party entitled to assert it either has abandoned it or
declined to assert it (Republic v. Caballero, 79 SCRA 177 [1977]).
In the case at bar, private respondent unreasonably failed to cause the
revision of the counter-protested precincts despite being afforded ample time
to do so and must be deemed to have abandoned it. However, it is not clear
from the record of the case whether Judge Lopez issued an order requiring
private respondent to pay the required cash deposit for the revision of the
ballots in the counter-protested precincts in accordance with Section 10, (b),
Rule 35 of the Comelec Rules of Procedure, otherwise, the counter-protest
shall be automatically dismissed as provided in Sec. 10[c] thereof:
Sec. 10. Cash Deposit. —
xxx xxx xxx
(b) In case revision of ballots is required, there shall be deposited,
within ten days after being required by the Court, the sum of three hundred
pesos (P300.00) for every ballot box for the compensation of revisors at the
rate of P100.00 each.
(c) Failure to make the cash deposits herein provided within the
prescribed time limit shall result in the automatic dismissal of the protest,
counter-protest or protest-in-intervention, as the case may be.
In the Comment of private respondent's widow, it is alleged that "the record
of the case definitely show (sic) that Judge Lopez himself categorically ruled
that the counter-protest was filed on time and the necessary cash deposit
submitted by private respondent pursuant to law" (Rollo, p. 60). However,
private respondent fails to cite that part of the record in which the said ruling
may be found.
Private respondent attributes the delay in the resolution of the case to Judge
Lopez for failing to rule on the issues raised by the parties. However, it
cannot be denied that private respondent has maintained the same position
regarding the revision of his counter-protest from the very beginning, as
early as the pre-trial of the case, and all throughout the course of the
proceedings. Although Judge Lopez' inaction may have contributed to the
delay of the case, private respondent Radovan must bear the grave
consequences of his stubborn and unfounded refusal to proceed with the
revision of the counter-protested precincts. Instead of conducting the
revision of his counter-protested precincts, private respondent hedged and
stalled on the resolution of the case which is a purely dilatory technique.
Private respondent's argument is that the procedure advocated by him would
actually save time. Nothing that the resolution of petitioner's protest took
almost a year, he contends that about the same length of time would be saved
Page 2 of 14
in the event a revision of the counter-protested precincts would be declared
unnecessary. Suffice it to state that the procedure proposed by private
respondent is not sanctioned by the Rules and need not delay us any longer
that it already has in the disposition of this case.
Upon the foregoing, we hold that the respondent judge erred in rendering the
assailed orders denying petitioner's "Motion to Determine Votes, to Declare
Winner and to Allow Assumption of Office" and directing the revision of the
counter-protested precincts at this late hour, so to speak. Under the
circumstances and for reasons discussed above, the order of Judge Lopez
dated August 18, 1993 which resolved the party litigants' objections to the
revised ballots may very well be the subject of a valid decision to resolve the
instant electoral protest based on the revised ballots of the 22 protested
precincts.
In the event petitioner is declared the winning candidate, she should, upon
proper motion, be allowed to immediately assume the contested office. We
say this because in their pleadings, petitioner and private respondent have
amply discussed their respective arguments in the applicability of Garcia v.
de Jesus and the accompanying case of Tobon Uy v. Comelec (206 SCRA 779
[1992]) and the possibility is not remote that private respondent may once
again resort to dilatory tactics.
Section 2, Rule 39 of the Rules of Court allows execution pending appeal in
election cases upon good reasons (Garcia v. de Jesus, supra; in relation to
Rule 43, Sec. 1, COMELEC Rules of Procedure) which we find obtaining in
the case before us.
Gahol v. Riodique (64 SCRA 494 [1975]) is even more emphatic:
Why should the proclamation by the board of canvassers suffice as a basis of
the right to assume office, subject to future contingencies attendant to a
protest, and not the decision of a court of justice? Indeed, when it is
considered that the board of canvassers is composed of person who are less
technically prepared to make an accurate appreciation of the ballots, apart
from their being more apt to yield to external consideration, and that the
board must act summarily, practically racing against time, while on the other
hand, the judge has the benefit of all the evidence the parties can offer and of
admittedly better technical preparation and background, apart from his
being allowed ample time for conscientious study and mature deliberation
before rendering judgment, one cannot but perceive the wisdom of allowing
the immediate execution of decisions in election cases adverse to the
protestees, notwithstanding the perfection and pendency of appeals
therefrom, as long as there are, in the sound discretion of the court, good
reasons therefor. (cited in Garcia v. de Jesus, supra)
We also find as erroneous the substitution of the deceased Rosauro
Radovan's widow, Ediltrudes Radovan, on the ground that private
respondent had a counter-claim for damages. "Public office is personal to the
incumbent and is not a property which passes to his heirs" (Santos vs.
Secretary of Labor, 22 SCRA 848 [1968]; De la Victoria vs. Comelec, 199
SCRA 561 [1991]). The heirs may no longer prosecute the deceased
protestee's counter-claim for damages against the protestant for that was
extinguished when death terminated his right to occupy the contested office
(Dela Victoria, supra).
WHEREFORE, the petition is hereby GRANTED. The assailed orders of
respondent judge as well as the results of the revision of the 11 ballot boxes
subject of the counter-protest are SET ASIDE. Respondent judge is further
ordered to DISMISS the counter-protest in Election Case No. 92-1 and to
resolve the "Motion to Determine Votes, to Proclaim Winner and to Allow
Assumption of Office" filed by petitioner conformably with this decision
within a non-extendible period of fifteen (15) days from receipt hereof. This
decision is immediately executory. Costs against respondent Ediltrudes
Radovan.
SO ORDERED.
Feliciano, Romero, Melo and Vitug, JJ., concur.
xxxx
G.R. No. 125249 February 7, 1997
JIMMY S. DE CASTRO, petitioner,
vs. THE COMMISSION ON ELECTIONS and AMANDO A.
MEDRANO, respondent
HERMOSISIMA, JR., J.:
Before us is a petition for certiorari raising twin issues as regards the effect of
the contestant's death in an election protest: Is said contest a personal action
extinguished upon the death of the real party in interest? If not, what is the
mandatory period within which to effectuate the substitution of parties?
The following antecedent facts have been culled from the pleadings and are
not in dispute:
Petitioner was proclaimed Mayor of Gloria, Oriental Mindoro during the May
8, 1995 elections.
In the same elections, private respondent was proclaimed Vice-Mayor of the
same municipality.
On May 19, 1995, petitioner's rival candidate, the late Nicolas M. Jamilla,
filed an election protest1 before the Regional Trial Court of Pinamalayan,
Oriental Mindoro.2
During the pendency of said contest, Jamilla died.3 Four days after such
death or on December 19, 1995, the trial court dismissed the election protest
ruling as it did that "[a]s this case is personal, the death of the protestant
extinguishes the case itself. The issue or issues brought out in this protest
have become moot and academic".4
On January 9, 1995, private respondent learned about the dismissal of the
protest from one Atty. Gaudencio S. Sadicon, who, as the late Jamilla's
counsel, was the one who informed the trial court of his client's demise.
On January 15, 1996, private respondent filed his Omnibus Petition/Motion
(For Intervention and/or Substitution with Motion for Reconsideration).5
Opposition thereto was filed by petitioner on January 30, 1996.6
In an Order dated February 14, 1996,7 the trial court denied private
respondent's Omnibus Petition/Motion and stubbornly held that an election
protest being personal to the protestant, is ipso facto terminated by the
latter's death.
Unable to agree with the trial court's dismissal of the election protest., private
respondent filed a petition for certiorari and mandamus before the
Commission on Elections (COMELEC); private respondent mainly assailed
the trial court orders as having been issued with grave abuse of discretion.
COMELEC granted the petition for certiorari and mandamus.8 It ruled that
an election contest involves both the private interests of the rival candidates
and the public interest in the final determination of the real choice of the
electorate, and for this reason, an election contest necessarily survives the
death of the protestant or the protestee.
We agree.
It is true that a public office is personal to the public officer and is not a
property transmissible to his heirs upon death.9 Thus, applying the doctrine
of actio personalis moritur cum persona, upon the death of the incumbent,
no heir of his may be allowed to continue holding his office in his place.
But while the right to a public office is personal and exclusive to the public
officer, an election protest is not purely personal and exclusive to the
protestant or to the protestee such that the death of either would oust the
court of all authority to continue the protest proceedings.
An election contest, after all, involves not merely conflicting private
aspirations but is imbued with paramount public interests. As we have held
in the case of Vda. de De Mesa v. Mencias: 10
. . . It is axiomatic that an election contest, involving as it does not only the
adjudication and settlement of the private interests of the rival candidates
but also the paramount need of dispelling once and for all the uncertainty
that beclouds the real choice of the electorate with respect to who shall
discharge the prerogatives of the offices within their gift, is a proceeding
imbued with public interest which raises it onto a plane over and above
Page 3 of 14
ordinary civil actions. For this reason, broad perspectives of public policy
impose upon courts the imperative duty to ascertain by all means within their
command who is the real candidate elected in as expeditious a manner as
possible, without being fettered by technicalities and procedural barriers to
the end that the will of the people may not be frustrated (Ibasco vs. Ilao, et
al., G.R. L-17512, December 29, 1960; Reforma vs. De Luna, G.R. L-13242,
July 31, 1958). So inextricably intertwined are the interests of the contestants
and those of the public that there can be no gainsaying the logic of the
proposition that even the voluntary cessation in office of the protestee not
only does not ipso facto divest him of the character of an adversary in the
contest inasmuch as he retains a party interest to keep his political opponent
out of the office and maintain therein his successor, but also does not in any
manner impair or detract from the jurisdiction of the court to pursue the
proceeding to its final conclusion (De Los Angeles vs. Rodriguez, 46 Phil.
595, 597; Salcedo vs. Hernandez, 62 Phil. 584, 587; Galves vs. Maramba, G.R.
L-13206).
Upon the same principle, the death of the protestee De Mesa did not abate
the proceedings in the election protest filed against him, and it may stated as
a rule that an election contest survives and must be prosecuted to final
judgment despite the death of the protestee. 11
The death of the protestant, as in this case, neither constitutes a ground for
the dismissal of the contest nor ousts the trial court of its jurisdiction to
decide the election contest. Apropos is the following pronouncement of this
court in the case of Lomugdang v. Javier: 12
Determination of what candidate has been in fact elected is a matter clothed
with public interest, wherefore, public policy demands that an election
contest, duly commenced, be not abated by the death of the contestant. We
have squarely so rule in Sibulo Vda. de Mesa vs. Judge Mencias, G.R. No.
L-24583, October 29, 1966, in the same spirit that led this Court to hold that
the ineligibility of the protestant is not a defense (Caesar vs. Garrido, 53 Phil.
57), and that the protestee's cessation in office is not a ground for the
dismissal of the contest nor detract the Courts jurisdiction to decide the case
(Angeles vs. Rodriguez, 46 Phil. 595; Salcedo vs. Hernandez, 62 Phil. 584). 13
The asseveration of petitioner that private respondent is not a real party in
interest entitled to be substituted in the election protest in place of the late
Jamilla, is utterly without legal basis. Categorical was our ruling in Vda. de
Mesa and Lomugdang that:
. . . the Vice Mayor elect has the status of a real party in interest in the
continuation of the proceedings and is entitled to intervene therein. For if the
protest succeeds and the Frotestee is unseated, the Vice-Mayor succeeds to
the office of Mayor that becomes vacant if the one duly elected can not
assume the post. 14
To finally dispose of this case, we rule that the filing by private respondent of
his Omnibus Petition/Motion on January 15, 1996, well within a period of
thirty days from December 19, 1995 when Jamilla's counsel informed the trial
court of Jamilla's death, was in compliance with Section 17, Rule 3 of the
Revised Rules of Court. Since the Rules of Court, though not generally
applicable to election cases, may however be applied by analogy or in a
suppletory character, 15 private respondent was correct to rely thereon.
The above jurisprudence is not ancient; in fact these legal moorings have
been recently reiterated in the 1991 case of De la Victoria vs. COMELEC. 16 If
only petitioner's diligence in updating himself with case law is as spirited as
his persistence in pursuing his legal asseverations up to the highest court of
the land, no doubt further derailment of the election protest proceedings
could have been avoided.
WHEREFORE, premises considered, the instant petition for certiorari is
hereby DISMISSED
Costs against petitioner.
SO ORDERED.
xxxxx
G.R. No. 118883 January 16, 1998
SANGGUNIANG BAYAN OF SAN ANDRES, CATANDUANES, Represented
by VICE MAYOR NENITO AQUINO and MAYOR LYDIA T. ROMANO,
petitioner,
vs.
COURT OF APPEALS and AUGUSTO T. ANTONIO, respondents.
PANGANIBAN, J.:
Although a resignation is not complete without an acceptance thereof by the
proper authority, an office may still be deemed relinquished through
voluntary abandonment which needs no acceptance.
Statement of the Case
Before us is a petition for review under Rule 45 of the Rules of Court seeking
a reversal of the Decision1 of the Court of Appeals2 promulgated on January
31, 1995 in CA-G.R. SP No. 34158, which modified the Decision dated
February 18, 1994 of the Regional Trial Court3 of Virac, Catanduanes, Branch
42, in Sp. Civil Case No. 1654.
The dispositive portion of the assailed Decision of the appellate court reads:
WHEREFORE, the judgment appealed from is hereby MODIFIED such that
paragraphs 1, 2 and 4 thereof are deleted. Paragraph 3 is AFFIRMED. No
pronouncement as to costs.4
Antecedent Facts
Private Respondent Augusto T. Antonio was elected barangay captain of
Sapang Palay, San Andres, Catanduanes in March 1989. He was later elected
president of the Association of Barangay Councils (ABC)5 for the
Municipality of San Andres, Catanduanes. In that capacity and pursuant to
the Local Government Code of 1983, he was appointed by the President as
member of the Sangguniang Bayan of the Municipality of San Andres.
Meanwhile, then Secretary Luis T. Santos of the Department of Interior and
Local Government (DILG) declared the election for the president of the
Federation of the Association of Barangay Councils (FABC) of the same
province, in which private respondent was a voting member, void for want of
a quorum. Hence, a reorganization of the provincial council became
necessary. Conformably, the DILG secretary designated private respondent
as a temporary member of the Sangguniang Panlalawigan of the Province of
Catanduanes, effective June 15, 1990.
In view of his designation, private respondent resigned as a member of the
Sangguniang Bayan. He tendered his resignation6 dated June 14, 1990 to
Mayor Lydia T. Romano of San Andres, Catanduanes, with copies furnished
to the provincial governor, the DILG and the municipal treasurer. Pursuant
to Section 50 of the 1983 Local Government Code7 (B.P. Blg. 337), Nenito F.
Aquino, then vice president of the ABC, was subsequently appointed by the
provincial governor as member of the Sangguniang Bayan8 in place of
private respondent. Aquino assumed office on July 18, 1990 after taking his
oath.9
Subsequently, the ruling of DILG Secretary Santos annulling the election of
the FABC president was reversed by the Supreme Court in Taule vs. Santos.
10 In the same case, the appointment of Private Respondent Antonio as
sectoral representative to the Sangguniang Panlalawigan was declared void,
because he did not possess the basic qualification that he should be president
of the federation of barangay councils.11 This ruling of the Court became final
and executory on December 9, 1991.
On March 31, 1992, private respondent wrote to the members of the
Sangguniang Bayan of San Andres, advising them of his re-assumption of his
"original position, duties and responsibilities as sectoral representative"12
therein. In response thereto, the Sanggunian issued Resolution No. 6, Series
of 1992, declaring that Antonio had no legal basis to resume office as a
member of the Sangguniang Bayan.13
On August 13, 1992, private respondent sought from the DILG a definite
ruling relative to his right to resume his office as member of the Sangguniang
Bayan.14 Director Jacob F. Montesa, department legal counsel of the DILG,
clarified Antonio's status in this wise:
Page 4 of 14
Having been elected President of the ABC in accordance with the
Department's Memorandum Circular No. 89-09,15 you became an ex-officio
member in the sanggunian. Such position has not been vacated inasmuch as
you did not resign nor abandon said office when you were designated as
temporary representative of the Federation to the Sangguniang Panlalawigan
of Catanduanes on June 7, 1990. The Supreme Court in Triste vs. Leyte State
College Board of Trustees (192 SCRA 327), declared that: "designation
implies temporariness. Thus, to "designate" a public officer to another
position may mean to vest him with additional duties while he performs the
functions of his permanent office. In some cases, a public officer may be
"designated" to a position in an acting capacity as when an undersecretary is
designated to discharge the functions of the Secretary pending the
appointment of a permanent Secretary."
Furthermore, incumbent ABC presidents are mandated by the Rules and
Regulations Implementing the 1991 Local Government Code to continue to
act as president of the association and to serve as ex-officio members of the
sangguniang bayan, to wit:
Article 210 (d) (3), Rule XXIX of the Implementing Rules and Regulations of
Rep. Act No. 7160, provides that:
The incumbent presidents of the municipal, city and provincial chapters of
the liga shall continue to serve as ex-officio members of the sanggunian
concerned until the expiration of their term of office, unless sooner removed
for cause.
(f) . . . Pending election of the presidents of the municipal, city, provincial
and metropolitan chapters of the liga, the incumbent presidents of the
association of barangay councils in the municipality, city, province and
Metropolitan Manila, shall continue to act as president of the corresponding
liga chapters under this Rule.
In view of the foregoing, considering that the annulled designation is only an
additional duty to your primary function, which is the ABC President, we find
no legal obstacle if you re-assume your representation in the sanggunian
bayan as ex-officio member.16
Despite this clarification, the local legislative body issued another
resolution17 reiterating its previous stand.
In response to private respondent's request,18 Director Montesa opined that
Antonio did not relinquish or abandon his office; and that since he was the
duly elected ABC president, he could re-assume his position in the
Sanggunian.19 A copy of said reply was sent to the members of the local
legislative body.
Notwithstanding, the Sanggunian refused to acknowledge the right of private
respondent to re-assume office as sectoral representative.
On December 10, 1992, private respondent filed a petition for certiorari and
mandamus with preliminary mandatory injunction and/or restraining order
before the RTC. On February 18, 1994, the trial court rendered its decision
holding that Augusto T. Antonio's resignation from the Sangguniang Bayan
was ineffective and inoperative, since there was no acceptance thereof by the
proper authorities. The decretal portion of the decision reads:
WHEREFORE, in view of the foregoing, judgment is hereby rendered in
favor of the petitioner and against the respondents and ordering the latter:
(1) to pay the petitioner jointly and severally the amount of
P10,000.00 as attorney's fees and the cost of the suit;
(2) to allow petitioner to assume his position as sectoral representative
of the Sangguniang Bayan of San Andres, Catanduanes;
(3) to pay the petitioner jointly and severally his uncollected salaries
similar to those received by the other members of the Sangguniang Bayan of
San Andres, Catanduanes as certified to by the Municipal Budget Officer and
Municipal Treasurer of the same municipality from April 8, 1992 up to the
date of this judgment; and
(4) declaring Resolution No[s]. 7 & 28 series of 1992 null and void and
to have no effect.20
Petitioners appealed this judgment to the Court of Appeals.
Appellate Court's Ruling
Respondent Court of Appeals affirmed the trial court's ruling but deleted the
first, second and fourth paragraphs of its dispositive portion. It held that
private respondent's resignation was not accepted by the proper authority,
who is the President of the Philippines. While the old Local Government
Code is silent as to who should accept and act on the resignation of any
member of the Sanggunian, the law vests in the President the power to
appoint members of the local legislative unit. Thus, resignations must be
addressed to and accepted by him. It added that, though the secretary of the
DILG is the alter ego of the President and notice to him may be considered
notice to the President, the records are bereft of any evidence showing that
the DILG secretary received and accepted the resignation letter of Antonio.
Moreover, granting that there was complete and effective resignation, private
respondent was still the president of the ABC and, as such, he was qualified
to sit in the Sangguniang Bayan in an ex officio capacity by virtue of Section
49421 of R.A. 716022 and Memorandum Circular No. 92-38.23 In view,
however, of the May 1994 elections in which a new set of barangay officials
was elected, Antonio's reassumption of office as barangay representative to
the Sangguniang Bayan was no longer legally feasible.
The appellate court added that private respondent could not be considered to
have abandoned his office. His designation as member of the Sangguniang
Panlalawigan was merely temporary and not incompatible with his position
as president of the ABC of San Andres, Catanduanes.
Finally, Respondent Court deleted the award of attorney's fees for being
without basis, and held that Resolution Nos. 6 and 28 of the Sangguniang
Bayan of San Andres involved a valid exercise of the powers of said local
body. It thus modified the trial court's judgment by affirming paragraph 3
and deleting the other items. Unsatisfied, petitioners brought the present
recourse.24
Issues
The petitioner, in its memorandum,25 submits before this Court the
following issues:
I. Whether or not respondent's resignation as ex-officio member of
Petitioner Sangguniang Bayan ng San Andres, Catanduanes is deemed
complete so as to terminate his official relation thereto;
II. Whether or not respondent had totally abandoned his ex-officio
membership in Petitioner Sangguniang Bayan;
III. Whether or not respondent is entitled to collect salaries similar to
those received by other members of Petitioner Sangguniang Bayan from April
8, 1992 up to date of judgment in this case by the Regional Trial Court of
Virac, Catanduanes.26
In sum, was there a complete and effective resignation? If not, was there an
abandonment of office?
This Court's Ruling
The petition is meritorious. Although the terms of office of barangay
captains, including private respondent, elected in March 1989 have expired,
the Court deemed it necessary to resolve this case, as the Court of Appeals
had ordered the payment of the uncollected salaries allegedly due prior to the
expiration of Respondent Antonio's term.
First Issue: Validity of Resignation
The petitioner submits that the resignation of private respondent was valid
and effective despite the absence of an express acceptance by the President of
the Philippines. The letter of resignation was submitted to the secretary of
the DILG, an alter ego of the President, the appointing authority. The
acceptance of respondent's resignation may be inferred from the fact that the
DILG secretary himself appointed him a member of the Sangguniang
Panlalawigan of Catanduanes.27
In Ortiz vs. COMELEC,28 we defined resignation as the "act of giving up or
the act of an officer by which he declines his office and renounces the further
right to use it. It is an expression of the incumbent in some form, express or
Page 5 of 14
implied, of the intention to surrender, renounce, and relinquish the office
and the acceptance by competent and lawful authority." To constitute a
complete and operative resignation from public office, there must be: (a) an
intention to relinquish a part of the term; (b) an act of relinquishment; and
(c) an acceptance by the proper authority.29 The last one is required by
reason of Article 238 of the Revised Penal Code.30
The records are bereft of any evidence that private respondent's resignation
was accepted by the proper authority. From the time that he was elected as
punong barangay up to the time he resigned as a member of Sangguniang
Bayan, the governing law was B.P. 337 or the Local Government Code of
1983. While said law was silent as to who specifically should accept the
resignation of an appointive member of the Sangguniang Bayan, Sec. 6 of
Rule XIX of its implementing rules states that the "[r]esignation of
sanggunian members shall be acted upon by the sanggunian concerned, and
a copy of the action taken shall be furnished the official responsible for
appointing a replacement and the Ministry of Local Government. The
position shall be deemed vacated only upon acceptance of the resignation."
It is not disputed that private respondent's resignation letter was addressed
only to the municipal mayor of San Andres, Catanduanes. It is indicated
thereon that copies were furnished the provincial governor, the municipal
treasurer and the DILG. Neither the mayor nor the officers who had been
furnished copies of said letter expressly acted on it. On hindsight, and
assuming arguendo that the aforecited Sec. 6 of Rule XIX is valid and
applicable, the mayor should have referred or endorsed the latter to the
Sangguniang Bayan for proper action. In any event, there is no evidence that
the resignation was accepted by any government functionary or office.
Parenthetically, Section 146 of B.P. Blg. 337 states:
Sec. 146. Composition. — (1) The sangguniang bayan shall be the legislative
body of the municipality and shall be composed of the municipal mayor, who
shall be the presiding officer, the vice-mayor, who shall be the presiding
officer pro tempore, eight members elected at large, and the members
appointed by the President consisting of the resident of the katipunang bayan
and the president of the kabataang barangay municipal federation. . . .
(Emphasis supplied.)
Under established jurisprudence, resignations, in the absence of statutory
provisions as to whom they should be submitted, should be tendered to the
appointing person or body.31 Private respondent, therefore, should have
submitted his letter of resignation to the President or to his alter ego, the
DILG secretary. Although he supposedly furnished the latter a copy of his
letter, there is no showing that it was duly received, much less, that it was
acted upon. The third requisite being absent, there was therefore no valid and
complete resignation.
Second Issue: Abandonment of Office
While we agree with Respondent Court that the resignation was not valid
absent any acceptance thereof by the proper authority, we nonetheless hold
that Private Respondent Antonio has effectively relinquished his membership
in the Sangguniang Bayan due to his voluntary abandonment of said post.
Abandonment of an office has been defined as the voluntary relinquishment
of an office by the holder, with the intention of terminating his possession
and control thereof.32 Indeed, abandonment of office is a species of
resignation; while resignation in general is a formal relinquishment,
abandonment is a voluntary relinquishment through nonuser.33 Nonuser
refers to a neglect to use a privilege or a right (Cyclopedic Law Dictionary,
3rd ed.) or to exercise an easement or an office (Black's Law Dictionary, 6th
ed.).
Abandonment springs from and is accompanied by deliberation and freedom
of choice.34 Its concomitant effect is that the former holder of an office can
no longer legally repossess it even by forcible reoccupancy.35
Clear intention to abandon should be manifested by the officer concerned.
Such intention may be express or inferred from his own conduct.36 Thus, the
failure to perform the duties pertaining to the office must be with the officer's
actual or imputed intention to abandon and relinquish the office.37
Abandonment of an office is not wholly a matter of intention; it results from a
complete abandonment of duties of such a continuance that the law will infer
a relinquishment.38 Therefore, there are two essential elements of
abandonment: first, an intention to abandon and, second, an overt or
"external" act by which the intention is carried into effect.39
Petitioner argues that the following clearly demonstrate private respondent's
abandonment of his post in the Sangguniang Bayan:
Admittedly, the designation of respondent as member of the Sangguniang
Panlalawigan of Catanduanes was worded "temporary," but his acts more
than clearly established his intention to totally abandon his office, indicating
an absolute relinquishment thereof. It bears to emphasize that respondent
actually tendered his resignation and subsequently accepted an ex-officio
membership in the Sangguniang Panlalawigan of Catanduanes. He
performed his duties and functions of said office for almost two (2) years, and
was completely aware of the appointment and assumption on July 18, 1990 of
Nenito F. Aquino, who was then Vice-President of the Association of
Barangay Councils (ABC) of San Andres, Catanduanes, as ex-officio member
of petitioner Sangguniang Bayan representing the ABC.
xxx xxx xxx
Moreover, it may be well-noted that ABC Vice President Nenito Aquino
assumed respondent's former position for twenty (20) months, without him
questioning the term of office of the former if indeed respondent's
designation as ex-officio member of the Sangguniang Panlalawigan was only
temporary. Likewise, for almost eight (8) months after knowledge of the
decision in Taule vs. Santos, et al., Ibid., nullifying his designation as
representative to the Sangguniang Panlalawigan, respondent opted to remain
silent, and in fact failed to seasonably act for the purpose of reassuming his
former position. Evidently, respondent had clearly abandoned his former
position by voluntary relinquishment of his office through non-user.40
[Emphasis supplied.]
We agree with petitioner. Indeed, the following clearly manifest the intention
of private respondent to abandon his position: (1) his failure to perform his
function as member of the Sangguniang Bayan, (2) his failure to collect the
corresponding remuneration for the position, (3) his failure to object to the
appointment of Aquino as his replacement in the Sangguniang Bayan, (4) his
prolonged failure to initiate any act to reassume his post in the Sangguniang
Bayan after the Supreme Court had nullified his designation to the
Sangguniang Panlalawigan.
On the other hand, the following overt acts demonstrate that he had effected
his intention: (1) his letter of resignation from the Sangguniang
Bayan,41 (2) his assumption of office as member of the Sangguniang
Panlalawigan, (3) his faithful discharge of his duties and functions as
member of said Sanggunian, and (4) his receipt of the remuneration for such
post.
It must be stressed that when an officer is "designated" to another post, he is
usually called upon to discharge duties in addition to his regular
responsibilities. Indeed, his additional responsibilities are prescribed by law
to inhere, as it were, to his original position. A Supreme Court justice, for
instance, may be designated member of the House of Representatives
Electoral Tribunal. In some cases, a public officer may be "designated" to a
position in an acting capacity, as when an undersecretary is tasked to
discharge the functions of a secretary for a temporary period.42 In all cases,
however, the law does not require the public servant to resign from his
original post. Rather, the law allows him to concurrently discharge the
functions of both offices.
Private respondent, however, did not simultaneously discharge the duties
and obligations of both positions. Neither did he, at that time, express an
intention to resume his office as member of the Sangguniang Bayan. His
overt acts, silence, inaction and acquiescence, when Aquino succeeded him to
his original position, show that Antonio had abandoned the contested office.
His immediate and natural reaction upon Aquino's appointment should have
been to object or, failing to do that, to file appropriate legal action or
proceeding. But he did neither. It is significant that he expressed his
intention to resume office only on March 31, 1992, after Aquino had been
deemed resigned on March 23, 1992, and months after this Court had
nullified his "designation" on August 12, 1991. From his passivity, he is
deemed to have recognized the validity of Aquino's appointment and the
latter's discharge of his duties as a member of the Sangguniang Bayan.
In all, private respondent's failure to promptly assert his alleged right implies
his loss of interest in the position. His overt acts plainly show that he really
Page 6 of 14
meant his resignation and understood its effects. As pointed out by the
eminent American commentator, Mechem.43
Public offices are held upon the implied condition that the officer will
diligently and faithfully execute the duties belonging to them, and while a
temporary or accidental failure to perform them in a single instance or
during a short period will not operate as an abandonment, yet if the officer
refuses or neglects to exercise the functions of the office for so long a period
as to reasonably warrant the presumption that he does not desire or intend to
perform the duties of the office at all, he will be held to have abandoned it,
not only when his refusal to perform was willful, but also where, while he
intended to vacate the office, it was because he in good faith but mistakenly
supposed he had no right to hold it.
Lastly, private respondent, who remained ABC president, claims the legal
right to be a member of the Sangguniang Bayan by virtue of Section 146 of
B.P. Blg. 337. However, his right thereto is not self-executory, for the law
itself requires another positive act — an appointment by the President or the
secretary of local government per E.O. 342.44 What private respondent could
have done in order to be able to reassume his post after Aquino's resignation
was to seek a reappointment from the President or the secretary of local
government. By and large, private respondent cannot claim an absolute right
to the office which, by his own actuations, he is deemed to have relinquished.
45
We reiterate our ruling in Aparri vs. Court of Appeals:46
A public office is the right, authority, and duty created and conferred by law,
by which for a given period, either fixed by law or enduring at the pleasure of
the creating power, an individual is invested with some portion of the
sovereign functions of the government, to be exercised by him for the benefit
of the public . . . The right to hold a public office under our political system is
therefore not a natural right. It exists, when it exists at all, only because and
by virtue of some law expressly or impliedly creating and conferring it . . .
There is no such thing as a vested interest or an estate in an office, or even an
absolute right to hold office. Excepting constitutional offices which provide
for special immunity as regards salary and tenure, no one can be said to have
any vested right in an office or its salary . . .
Third Issue: Salary
Having ruled that private respondent had voluntarily abandoned his post at
the Sangguniang Bayan, he cannot be entitled to any back salaries. Basic is
the "no work, no pay" 47 rule. A public officer is entitled to receive
compensation for services actually rendered for as long as he has the right to
the office being claimed.48 When the act or conduct of a public servant
constitutes a relinquishment of his office, he has no right to receive any salary
incident to the office he had abandoned.49
WHEREFORE, the petition is GRANTED and the Assailed Decision is
REVERSED and SET ASIDE. No costs.
SO ORDERED.
Narvasa, C.J., Romero, Melo and Francisco, JJ., concur.
xxxxx
G.R. No. 146875 July 14, 2003
KAGAWADS JOSE G. MENDOZA, ROSARIO B. ESPINO,
TERESITA S. MENDOZA, JORGE BANAL, Chairman of the Special
Investigation Committee on Administrative Cases Against Elected
Barangay Officials of the Quezon City Council and ISMAEL A.
MATHAY, JR., City Mayor of Quezon City, petitioners,
vs.
BARANGAY CAPTAIN MANUEL D. LAXINA, SR., respondent.
YNARES-SANTIAGO, J.:
Is the taking of an oath of office anew by a duly proclaimed but subsequently
unseated local elective official a condition sine qua non to the validity of his
re-assumption in office where the Commission on Elections (COMELEC)
orders the relinquishment of the contested position?
This is the legal question raised in this petition under Rule 45 of the 1997
Rules of Civil Procedure, assailing the November 13, 2000 Summary
Judgment1 of the Regional Trial Court of Quezon City, Branch 77, which set
aside the decision of the City Council of Quezon City finding respondent
Barangay Captain Manuel D. Laxina guilty of grave misconduct.
On May 27, 1997, respondent took his oath and thereafter assumed office as
the duly proclaimed and elected barangay captain of Barangay Batasan Hills,
Quezon City, in the 1997 Barangay Elections. Meanwhile, Roque Fermo, his
rival candidate, filed an election protest with the Metropolitan Trial Court of
Quezon City, Branch 40. On January 18, 1999, Fermo was declared as the
winner in the Barangay Elections. Respondent filed a notice of appeal with
the COMELEC while Fermo filed a motion for execution pending appeal.
On January 20, 1999, an order was issued by the trial court granting the
motion for execution pending appeal. Hence, respondent vacated the position
and relinquished the same to Fermo. Thereafter, respondent filed a petition
with the COMELEC questioning the January 20, 1999 order of the trial court.
On September 16, 1999, the COMELEC issued a resolution2 annulling the
order which granted the execution of the decision pending appeal on the
ground that there existed no good reasons to justify execution. The
dispositive portion thereof reads:
WHEREFORE, in view of all the foregoing, the Commission En Banc
GRANTS the petition. Accordingly, the January 20, 1999 Order of the Court a
quo is hereby ANNULLED. Private respondent ROQUE FERMO is hereby
ORDERED to CEASE and DESIST from further performing the functions of
Punong Barangay of Barangay Batasan Hills, District II, Quezon City and to
relinquish the same to Petitioner MANUEL LAXINA, SR., pending final
resolution of appeal.
SO ORDERED.3
On October 27, 1999, the COMELEC issued a writ of execution directing
Fermo to vacate the office of Barangay Chairman of Barangay Batasan Hills.
On October 28, 1999, Fermo was served a copy of the writ of execution but
refused to acknowledge receipt thereof. He also refused to vacate the
premises of the barangay hall of Batasan Hills.4 This did not, however,
prevent respondent and his staff from discharging their functions and from
holding office at the SK-Hall of Batasan Hills.5 On the same date, respondent
appointed Godofredo L. Ramos as Barangay Secretary6 and on November 8,
1999, he appointed Rodel G. Liquido as Barangay Treasurer.7
On November 12, 1999, the COMELEC, acting on respondent's motion to cite
Fermo for contempt,8 issued an alias writ of execution,9 which was likewise
returned unsatisfied. Finally, on November 16, 1999, respondent took his
oath of office as Barangay Captain of Batasan Hills, Quezon City before
Mayor Ismael Mathay, Jr.10 The following day, November 17, 1999, Roque
Fermo turned over to respondent all the assets and properties of the
barangay.11
On November 20, 1999, the Barangay Council of Batasan Hills issued
Resolution No. 001-S-1999 ratifying the appointment of Godofredo L. Ramos
as Barangay Secretary, effective November 1, 199912 and Resolution No.
002-S-1999 ratifying the appointment of Rodel G. Liquido, as Barangay
Treasurer, also effective November 1, 1999.13 However, the appointees of
Roque Fermo to the same position registered objections to the said
Resolutions. In order to accommodate these appointees, respondent agreed
to grant them allowances and renumerations for the period of November 1–7,
1999.14
In Resolution No. 017-S-99 dated December 11, 1999, the barangay council of
Batasan Hills, authorized the appropriation of P864,326.00 for the
November to December 1999 salary of its barangay officials and employees.15
Pursuant thereto, the barangay payroll was issued on December 18, 1999,
enumerating the names of respondent and his appointed barangay secretary
and barangay treasurer as among those entitled to compensation for services
rendered for the period November 8, 1999 to December 31, 1999.16
Petitioners Jose G. Mendoza, Jr., Rosario E. Espino and Teresita S. Mendoza,
who were barangay councilors, refused to sign Resolution No. 017-S-99 as
well as said payroll.17
Sometime in January 2000, petitioner barangay councilors filed with the
Quezon City Council a complaint18 for violation of the anti-graft and corrupt
practices act and falsification of legislative documents against respondent
and all other barangay officials who signed the questioned resolution and
Page 7 of 14
payroll, namely, Barangay Secretary Godofredo L. Ramos, Barangay
Treasurer Rodel G. Liquido, Barangay Kagawad Charlie O. Mangune,
Gonzalo S. Briones, Sr., Maryann T. Castañeda, Elias G. Gamboa, and SK-
Chairman Sharone Amog. They contended that defendants made it appear in
the payroll that he and his appointees rendered services starting November 8,
1999 when, in truth, they commenced to serve only on November 17, 1999
after respondent took his oath and assumed the office of barangay chairman.
They further claimed that the effectivity date of the barangay secretary and
barangay treasurer's appointment, as approved in Resolution No. 001-
S-1999, was November 16, 1999, but respondent fraudulently antedated it to
November 1, 1999. Petitioners also contended that respondent connived with
the other barangay officials in crossing out their names in the payroll.
In their joint counter-affidavit,19 defendants claimed that the taking anew of
the oath of office as barangay chairman was a mere formality and was not a
requirement before respondent can validly discharge the duties of his office.
They contended that respondent's appointees are entitled to the
remuneration for the period stated in the payroll as they commenced to serve
as early as October 28, 1999. They added that the names of the 3 petitioner
barangay councilors who refused to sign the assailed resolution and daily
wage payroll were crossed out from the said payroll to prevent any further
delay in the release of the salaries of all barangay officials and employees
listed therein.20
On October 2, 2000, the Special Investigation Committee on Administrative
Cases of the City ruled that respondent had no power to make appointments
prior to his oath taking on November 16, 1999.21 The Committee, however,
found that respondent and the other barangay officials who signed the
questioned resolution and payroll acted in good faith when they erroneously
approved the grant of renumerations to respondent's appointees starting
November 8, 1999. Nevertheless, it found respondent guilty of grave
misconduct and recommended the penalty of 2 months suspension. The
charges against Barangay Secretary Godofredo Ramos and Barangay
Treasurer Rodel Liquido were dismissed, inasmuch as the City Council's
disciplinary jurisdiction is limited to elective barangay officials only. As to
Barangay Kagawad Charlie O. Mangune, Gonzalo S. Briones, Sr., Maryann T.
Castañeda, Elias G. Gamboa, and SK-Chairman Sharone Amog, the charges
against them were likewise dismissed on the ground that there was no
"separate and independent proof that . . . [they] conspired with Punong
Barangay Laxina . . . Ramos and Liquido in committing the acts therein
complained of."22
On October 3, 2000, the Quezon City Council adopted the findings and
recommendations of the Committee.23 Respondent filed a motion for
reconsideration.24 On October 9, 2000, however, the City Council
implemented the decision and appointed Charlie Mangune as acting
barangay chairman of Batasan Hills, Quezon City.25
Respondent filed a petition for certiorari26 with the Regional Trial of Quezon
City, Branch 67, seeking to annul the decision of the Quezon City Council. In
their answer, petitioners prayed for the dismissal of the petition, arguing that
respondent failed to exhaust administrative remedies and the trial court has
no jurisdiction over the case because appeals from the decision of the City
Council should be brought to the Office of the President.
On November 13, 2000, a summary judgment was rendered by the trial court
in favor of respondent. It did not rule on the propriety of the re-taking of the
oath office by the latter, but nevertheless, exonerated him on the basis of the
finding of the City Council that he did not act in bad faith but merely
"misread the law, as applied to the facts." The dispositive portion of the said
decision, states:
WHEREFORE, the decision finding herein petitioner guilty of grave
misconduct and imposing upon him the penalty of suspension and loss of
concomitant benefits for two (2) months is hereby annulled and set aside.
The suspension of the petitioner is hereby lifted and all benefits due to him
are ordered restored.
The motion for a preliminary hearing on the affirmative defense of
respondents and the motion to drop City Councilor Banal as party
respondent are both denied.
SO ORDERED.27
Petitioners filed the instant petition for review raising pure questions of law.
Before going into the substantive issues, we shall first resolve the issue on
exhaustion of administrative remedies.
The trial court ruled that Section 67 of the Local Government Code, which
allows an appeal to the Office of the President, is not applicable because the
decision of the City Council is final and executory. It added that respondent
correctly filed a petition for certiorari because he had no other plain, speedy
and adequate remedy. The trial court further ratiocinated that an appeal to
the Office of the President before going to the regular courts might render the
case moot and academic inasmuch as the penalty of suspension might have
been fully served by the time the court renders a decision.
Sections 61 and 67 of the Local Government Code, provide:
Section 61. Form and Filing of Administrative Complaints. — A
verified complaint against any erring local elective official shall be prepared
as follows:
xxx xxx xxx
(c) A complaint against any elective barangay official shall be filed
before the sangguniang panlungsod or sangguniang bayan concerned whose
decision shall be final and executory. (emphasis supplied)
Sec. 67. Administrative Appeals. — Decisions in administrative cases may,
within thirty (30) days from receipt thereof, be appealed to the following:
xxx xxx xxx
(b) The Office of the President, in the case of decisions of the
sangguniang panlalawigan and the sangguniang panlungsod of highly
urbanized cities and independent component cities.
Decision of the Office of the President shall be final and executory.
In interpreting the foregoing provisions, the trial court did not consider
Section 68 of the same code which provides:
An appeal shall not prevent a decision from being final and executory. The
respondent shall be considered as having been placed under preventive
suspension during the pendency of an appeal in the event that he wins such
appeal. In the event the appeal results in an exoneration, he shall be paid his
salary and such other emoluments during the pendency of the appeal.
Obviously, the said Code does not preclude the taking of an appeal. On the
contrary, it specifically allows a party to appeal to the Office of the President.
The phrases "final and executory," and "final or executory" in Sections 67 and
68, respectively, of the Local Government Code, are not, as erroneously ruled
by the trial court, indicative of the appropriate mode of relief from the
decision of the Sanggunian concerned. These phrases simply mean that the
administrative appeals will not prevent the enforcement of the decisions.28
The decision is immediately executory but the respondent may nevertheless
appeal the adverse decision to the Office of the President or to the
Sangguniang Panlalawigan, as the case may be.29
It is clear that respondent failed to exhaust all the administrative remedies
available to him. The rule is that, before a party is allowed to seek the
intervention of the court, it is a pre-condition that he should have availed of
all the means of administrative processes afforded him. Hence, if a remedy
within the administrative machinery can still be availed of by giving the
administrative officer concerned every opportunity to decide on a matter that
comes within his jurisdiction, then such remedy should be exhausted first
before the court's judicial power can be sought. The premature invocation of
the court's intervention is fatal to one's cause of action.30
The application of the doctrine of exhaustion of administrative remedies,
however, admits of exceptions, one of which is when the issue involved is
purely legal.31 In the case at bar, the issues of whether or not the decision of
the Sangguniang Panlungsod in disciplinary cases is appealable to the Office
of the President, as well as the propriety of taking an oath of office anew by
respondent, are certainly questions of law which call for judicial intervention.
32 Furthermore, an appeal to the Office of the President would not
necessarily render the case moot and academic. Under Section 68, in the
event the appeal results in his exoneration, the respondent shall be paid his
salary and such other emoluments during the pendency of the appeal. Hence,
the execution of the penalty or expiration of term of the public official will not
Page 8 of 14
prevent recovery of all salaries and emoluments due him in case he is
exonerated of the charges. Clearly, therefore, the trial court correctly took
cognizance of the case at bar, albeit for the wrong reasons.
We now come to the substantive issues.
To be sure, an oath of office is a qualifying requirement for a public office; a
prerequisite to the full investiture with the office. It is only when the public
officer has satisfied the prerequisite of oath that his right to enter into the
position becomes plenary and complete.33 However, once proclaimed and
duly sworn in office, a public officer is entitled to assume office and to
exercise the functions thereof. The pendency of an election protest is not
sufficient basis to enjoin him from assuming office or from discharging his
functions.34 Unless his election is annulled by a final and executory decision,
35 or a valid execution of an order unseating him pending appeal is issued, he
has the lawful right to assume and perform the duties of the office to which
he has been elected.
In the case at bar, respondent was proclaimed as the winner in the 1997
Barangay Elections in Batasan Hills, Quezon City; he took his oath on May
27, 1997 and thereafter assumed office. He is therefore vested with all the
rights to discharge the functions of his office. Although in the interim, he was
unseated by virtue of a decision in an election protest decided against him,
the execution of said decision was annulled by the COMELEC in its
September 16, 1999 Resolution which, incidentally, was sustained by this
Court on March 13, 2000, in Fermo v. Commission on Elections.36 It was
held therein that "[w]hen the COMELEC nullified the writ of execution
pending appeal in favor of FERMO, the decision of the MTC proclaiming
FERMO as the winner of the election was stayed and the 'status quo' or the
last actual peaceful uncontested situation preceding the controversy was
restored . . ."37 The status quo referred to the stage when respondent was
occupying the office of Barangay Captain and discharging its functions. For
purposes of determining the continuity and effectivity of the rights arising
from respondent's proclamation and oath taken on May 27, 1997, it is as if
the said writ of execution pending appeal was not issued and he was not
ousted from office. The re-taking of his oath of office on November 16, 1999
was a mere formality considering that his oath taken on May 27, 1997
operated as a full investiture on him of the rights of the office. Hence, the
taking anew of his oath of office as Barangay Captain of Batasan Hills,
Quezon City was not a condition sine qua non to the validity of his re-
assumption in office and to the exercise of the functions thereof.
Having thus ruled out the necessity of respondent's taking anew of the oath
of office, the next question to be resolved is: when is respondent considered
to have validly re-assumed office — from October 28, 1999, the date of service
of the writ of execution to Roque Fermo and the date respondent actually
commenced to discharge the functions of the office, or from November 17,
1999, the date Roque Fermo turned over to respondent the assets and
properties of Barangay Batasan Hills, Quezon City?
The records show that the COMELEC served on October 28, 1999 a writ of
execution ordering Fermo to desist from performing the function of the
Office of Barangay Captain, but the latter refused to comply therewith. His
supporters prevented respondent from occupying the barangay hall,
prompting the latter to move for the issuance of an alias wit of execution,
which was granted on November 12, 1999. It was only on November 17, 1999
that the turn-over to respondent of the assets and properties of the barangay
was effected. Undoubtedly, it was Fermo's defiance of the writ that prevented
respondent from assuming office at the barangay hall. To reckon, therefore,
the effectivity of respondent's assumption in office on November 17, 1999, as
petitioners insist, would be to sanction dilatory maneuvers and to put a
premium on disobedience of lawful orders which this Court will not
countenance. It is essential to the effective administration of justice that the
processes of the courts and quasi-judicial bodies be obeyed.38 Moreover, it is
worthy to note that although the physical possession of the Office of the
Barangay Captain was not immediately relinquished by Fermo to respondent,
the latter exercised the powers and functions thereof at the SK-Hall of
Batasan Hills, Quezon City starting October 28, 1999. His re-assumption in
office effectively enforced the decision of the COMELEC which reinstated
him in office. It follows that all lawful acts of the latter arising from his re-
assumption in office on October 28, 1999 are valid. Hence, no grave
misconduct was committed by him in appointing Godofredo L. Ramos and
Rodel G. Liquido as Barangay Secretary and Barangay Treasurer,
respectively, and in granting them emoluments and renumerations for the
period served.
Respondent was also charged of conniving with the other barangay officials
in crossing out the names of the petitioner barangay councilors in the payroll.
The petition alleged that as a consequence of the striking out of the names of
the petitioner barangay officials, they were not able to receive their salaries
for the period November 8 to December 31, 1999.39 A reading of the payroll
reveals that the names of said petitioners and their corresponding salaries
are written thereon. However, they refused to sign the payroll and to
acknowledge receipt of their salaries to manifest their protest. Quod quis ex
culpa sua damnum sentire. Indeed, he who suffered injury through his own
fault is not considered to have suffered any damage.40 Hence, the
investigative committee correctly brushed aside this charge against
respondent.
The trial court therefore did not err in exonerating respondent and pursuant
to Article 68 of the Local Government Code, he should be paid his salaries
and emoluments for the period during which he was suspended without pay.
WHEREFORE, in view of all the foregoing, the instant petition for review is
DENIED. The Summary Judgment of the Regional Trial Court of Quezon
City, Branch 77, in Civil Case No. Q-00-42155, exonerating respondent
Manuel D. Laxina, Sr., of the charge of grave misconduct and ordering the
payment of all benefits due him during the period of his suspension, is
AFFIRMED.
SO ORDERED.
Vitug, Carpio and Azcuna, JJ ., concur.
Davide, Jr., C .J ., concurs in the result.
xxxxx
G.R. No. 154155 August 6, 2008
THE OMBUDSMAN, petitioner,
vs. BEN C. JURADO, respondent.
DECISION
REYES, R.T., J.:
NO less than Our Constitution guarantees the right not just to a speedy trial
but to the speedy disposition of cases.1 However, it needs to be underscored
that speedy disposition is a relative and flexible concept. A mere
mathematical reckoning of the time involved is not sufficient. Particular
regard must be taken of the facts and circumstances peculiar to each case.2
This is a petition for review on certiorari of the Decision3 of the Court of
Appeals (CA) in CA-G.R. SP No. 58925. The CA reversed and set aside the
decision and resolution of the Ombudsman finding respondent Bureau of
Customs Division Chief administratively liable for neglect of duty, penalizing
him with suspension for six months without pay.
The Facts
Sometime in 1992, Maglei Enterprises Co., (Maglei), a partnership owned by
Rose Cuyos and John Elvin C. Medina, filed an application before the Bureau
of Customs for the operation of a Customs Bonded Warehouse (CBW)-
Manufacturing Warehouse. As part of the evaluation of Maglei’s application,
CBW Supervisor Juanito A. Baliwag conducted an inspection of Maglei’s
compliance with structural requirements. Baliwag submitted a report4
recommending approval of the application.
On March 16, 1992, respondent Jurado, who was then the Chief of the
Warehouse Inspection Division, adopted the recommendation of Baliwag.
Then he indorsed the papers of Maglei to the Chief of the Miscellaneous
Manufacturing Bonded Warehouse Division (MMBWD). The indorsement
letter, in full, reads:
1st Indorsement
16 March 1992
Respectfully forwarded to the Chief, MMBWD, This Port, the within papers
relative to the request of MAGLEI ENTERPRISES CO., to establish and
operate a Customs Manufacturing Bonded Warehouse, pursuant to CMO
39-91, to be located at 129 Jose Bautista St., Caloocan City, together with the
attached report submitted by CBW Supervisor J. A.
Page 9 of 14

Baliwag of this Office, inviting attention to the recommendation stated
therein to which the undersigned concurs.
(Sgd.)
Atty. Ben C. Jurado
Chief
Warehousing Inspection Division5
Maglei’s application was submitted to Rolando A. Mendoza, Chief of the
MMBWD for his comment and recommendation. In a Memorandum (for the
District Collector of Customs) dated March 20, 1992, Mendoza reported that
Maglei has substantially complied with the physical and documentary
requirements relative to their application for the operation of a Customs
Bonded Warehouse. Mendoza further recommended that Maglei’s
application be approved. Following the indorsements of the different
divisions of the Bureau of Customs – Emma M. Rosqueta (District Collector
of Customs); Titus B. Villanueva (Deputy Commissioner for Assessment and
Operations); and Atty. Alex Gaticales (Executive Director of the Customs –
SGS Import Valuation and Classification Committee) – Maglei’s application
was recommended for approval.
On June 25, 1992, Maglei was finally granted the authority to establish and
operate CBW No. M-1467 located at 129 J. Bautista, Caloocan City. By virtue
of such authority, Maglei imported various textile materials which were then
transferred to the said warehouse. The textiles were to be manufactured into
car covers for exportation.
Subsequently, on July 8 and 22, 1992, MMBWD Senior Storekeeper Account
Officer George O. Dizon was tasked by MMBWD Chief Mendoza to check and
verify the status of Maglei’s CBW. Dizon reported that the subject CBW was
existing and operating. However, upon further verification by the Bureau of
Customs, it was discovered that the purported CBW of Maglei did not exist at
the alleged site in Caloocan City. Rather, what was reported located at the site
was a School of the Divine Mercy. Only a small signboard bearing the name
"Maglei Enterprises Company" was posted inconspicuously in the corner of
the lot. Further investigation revealed that Maglei’s shipment of textile
materials disappeared, without proof of the materials being exported or the
corresponding taxes being paid.
Ombudsman Disposition
On August 11, 1992, the Bureau of Customs initiated a complaint against
George P. Dizon, Rose Cuyos and John Elvin C. Medina for prosecution
under the Tariff and Customs Code. After receiving a copy of the resolution,
the Ombudsman conducted the investigation on the complaint.
On February 13, 1996, the Evaluation and Preliminary Investigation Bureau
(EPIB) of the Office of the Ombudsman (OMB) recommended that the
Resolution of the Bureau of Customs be reversed. The EPIB further
recommended that the complaint against George P. Dizon be dismissed and
another one be filed against Emma Rosqueta and Atty. Rolando Mendoza,
subject to further fact-finding investigation by the Fact Finding Bureau (FFB)
of the OMB. With regard to the case against Rose Cuyos and John Medina,
the EPIB recommended that the charges be taken up together with those of
Rosqueta and Atty. Mendoza. The case was then forwarded to the FFB.
On September 29, 1997, the FFB submitted its report with the following
recommendations:
WHEREFORE, premises considered; the undersigned investigators
respectfully recommend the following:
1. That criminal charges for violation of Section 3(e) of RA 3019 and Section
3081 of the Tariff and Customs Code be filed against the following officials
namely:
a. Emma M. Rosqueta
Director Collector, Port of Manila
b. Rolando A. Mendoza
Chief, Miscellaneous Manufacturing
Bonded Warehouse Division
c. Alex Gaticales
Executive Staff, Deputy Commissioner
d. Ben C. Jurado
Chief, Warehouse Inspection Division
CBW Supervisor
e. Juanito A. Baliwag
CBW Supervisor
f. George P. Dizon
Senior Storekeeper
All of the Bureau of Customs, and
g. Rose Cuyos and John Elvin C. Medina
Owner, Maglei Enterprises
Private Respondents
2. That records of this case be forwarded to the EPIB, this Office for the
conduct of the required preliminary investigation
3. That administrative charges for dishonesty and gross misconduct be
likewise filed against the above-named BOC officials before the AAB, this
Office.6
On October 17, 1997, the OMB approved the above recommendation.
On August 2, 1999, the OMB dismissed the criminal complaint for
falsification of public documents and violation of Section 3(e) of Republic Act
(R.A.) No. 3019 and Section 3601 of the Tariff and Customs Code filed
against respondent. The complaint was dismissed on the ground of lack of
prima facie evidence to charge respondent of the crime.
On the other hand, on August 16, 1999, the Administrative Adjudication
Bureau (AAB) of the OMB rendered judgment finding respondent
administratively liable, penalizing him with suspension for six (6) months
without pay. Respondent’s motion for reconsideration of his suspension was
likewise denied by the Ombudsman.
Aggrieved, respondent appealed to the CA. In his appeal, respondent argued,
among others, that his right to a speedy disposition of his case had been
violated; that the administrative case against him should have been
dismissed following the dismissal of the criminal charges against him; and
that there is no substantial evidence on record to make him administratively
liable.
CA Disposition
In a Decision dated July 3, 2002, the CA reversed and set aside the
questioned decision and resolution of the OMB. The dispositive part of the
CA decision runs in this wise:
Foregoing premises considered, the Petition is GIVEN DUE COURSE.
Resultantly, the challenged Decision/Resolution of the Ombudsman is
hereby REVERSED and SET ASIDE. No costs.
SO ORDERED.7
In ruling in favor of respondent, the appellate court ratiocinated:
Indeed, we are in accord with Petitioner’s arguments that his right to speedy
disposition of cases had been violated. To be sure, Section 16, Article III of
the 1987 Constitution provides thus:
"All persons shall have the right to a speedy disposition of their cases before
all judicial, quasi-judicial or administrative bodies."
xxxx
In the case at bench, the incident which gave rise to the complaint against
Petitioner happened on March 16, 1992. And yet it was only on November 20,
1997 or a lapse of more than five (5) years that the case relative to the said
incident was filed against him. Records disclose that on August 11, 1992, the
complaint only charged George O. Dizon and 2 others. Then on February 13,
1996 or after almost 4 years, the Evaluation and Preliminary Investigation
Bureau of the OMB made another recommendation which ultimately
Page 10 of 14
included Petitioner as among those to be charged. From February 13, 1996 to
November 20, 1997 or a period of more than one (1) year, what took them so
long to decide that Petitioner be included in the charges?
From the foregoing unfolding of events, it is quite clear that it took the
Ombudsman almost six (6) years to decide that a case be filed against
Petitioner. Under such circumstances, We cannot fault Petitioner for
invoking violation of his right to speedy disposition of his case.
More importantly, We do not agree that Petitioner, under attendant facts and
circumstances can be held liable for negligence. First of all, Petitioner as,
Deputy Commissioner for Assessment and Operation, did not have the duty
to make inspection on the alleged warehouse. Such duty belongs to other
personnel/officers. Secondly, in Petitioner’s 1st Indorsement dated March 22,
1992, he merely stated thus:
"Respectfully forwarded to the Chief, MMBWD, This Port, the within papers
relative to the request of MAGLEI ENTERPRISES CO., to establish and
operate a Customs Manufacturing Bonded Warehouse, pursuant to CMO
39-91, to be located at 129 Jose Bautista St., Caloocan City, together with the
attached report submitted by CBW Supervisor J.A. Baliwag of this Office,
inviting attention to the recommendation stated therein to which the
undersigned concurs." (p. 185, Rollo)
A careful reading of said 1st Indorsement undoubtedly shows that Petitioner
invited attention to the inspector’s (Supervisor Baliwag) qualified
recommendation, to wit:
"Approval respectfully recommended, subject to re-inspection, before
transfer of imported goods." (Underscoring for emphasis.)
After Petitioner made the indorsement, he no longer had any participation
nor was he under obligation or duty to make a re-inspection. If afterwards
damage was suffered, Petitioner cannot be faulted but rather only those who
had the duty to make re-inspection. It is precisely because of such fact that
the criminal complaint filed against Petitioner did not prosper. Where there
is no duty or responsibility, one should not be held liable for neglect, as what
has been done to Petitioner.8
Issues
Petitioner Ombudsman now comes to this Court, raising twin issues:
I.
WHETHER OR NOT RESPONDENT’S RIGHT TO SPEEDY TRIAL WAS
VIOLATED;
II.
WHETHER OR NOT RESPONDENT WAS NEGLIGENT IN THE
PERFORMANCE OF HIS DUTY, AS THE CHIEF OF THE WAREHOUSING
INSPECTION DIVISION, DESPITE THE FACT THAT HE DID NOT
ENSURE THAT THE SUPPOSED WAREHOUSE WAS NOT IN EXISTENCE.
9
Our Ruling
No violation of respondent’s right
to speedy disposition of cases.
We shall first tackle the issue on speedy disposition of cases.
Article III, Section 16 of the Constitution provides that, all persons shall have
the right to a speedy disposition of their cases before all judicial, quasi-
judicial, or administrative bodies. The constitutional right to a "speedy
disposition of cases" is not limited to the accused in criminal proceedings but
extends to all parties in all cases, including civil and administrative cases, and
in all proceedings, including judicial and quasi-judicial hearings. Hence,
under the Constitution, any party to a case may demand expeditious action
from all officials who are tasked with the administration of justice.10
It bears stressing that although the Constitution guarantees the right to the
speedy disposition of cases, it is a flexible concept. Due regard must be given
to the facts and circumstances surrounding each case. The right to a speedy
disposition of a case, like the right to speedy trial, is deemed violated only
when the proceedings are attended by vexatious, capricious, and oppressive
delays, or when unjustified postponements of the trial are asked for and
secured, or when without cause or justifiable motive, a long period of time is
allowed to elapse without the party having his case tried.11 Just like the
constitutional guarantee of "speedy trial," "speedy disposition of cases" is a
flexible concept. It is consistent with delays and depends upon the
circumstances. What the Constitution prohibits are unreasonable, arbitrary
and oppressive delays which render rights nugatory.12
In determining whether or not the right to the speedy disposition of cases has
been violated, this Court has laid down the following guidelines: (1) the
length of the delay; (2) the reasons for such delay; (3) the assertion or failure
to assert such right by the accused; and (4) the prejudice caused by the delay.
13
Gleaned from the foregoing, We find that respondent’s right to the speedy
disposition of cases has not been violated.
First. It is undisputed that the FFB of the OMB recommended that
respondent together with other officials of the Bureau of Customs be
criminally charged for violation of Section 3(e) of R.A. No. 3019 and Section
3601 of the Tariff and Customs Code. The same bureau also recommended
that respondent be administratively charged. Prior to the fact-finding report
of the FFB of the OMB, respondent was never the subject of any complaint or
investigation relating to the incident surrounding Maglei’s non-existent
customs bonded warehouse. In fact, in the original complaint filed by the
Bureau of Customs, respondent was not included as one of the parties
charged with violation of the Tariff and Customs Code. With respect to
respondent, there were no vexatious, capricious, and oppressive delays
because he was not made to undergo any investigative proceeding prior to the
report and findings of the FFB.
Simply put, prior to the report and recommendation by the FFB that
respondent be criminally and administratively charged, respondent was
neither investigated nor charged. That respondent was charged only in 1997
while the subject incident occurred in 1992, is not necessarily a violation of
his right to the speedy disposition of his case. The record is clear that prior to
1997, respondent had no case to speak of – he was not made the subject of
any complaint or made to undergo any investigation. As held in Dimayacyac
v. Court of Appeals:14
In the Tatad case, there was a hiatus in the proceedings between the
termination of the proceedings before the investigating fiscal on October 25,
1982 and its resolution on April 17, 1985. The Court found that "political
motivations played a vital role in activating and propelling the prosecutorial
process" against then Secretary Francisco S. Tatad. In the Angchangco case,
the criminal complaints remained pending in the Office of the Ombudsman
for more than six years despite the respondent’s numerous motions for early
resolution and the respondent, who had been retired, was being
unreasonably deprived of the fruits of his retirement because of the still
unresolved criminal complaints against him. In both cases, we ruled that the
period of time that elapsed for the resolution of the cases against the
petitioners therein was deemed a violation of the accused’s right to a speedy
disposition of cases against them.
In the present case, no proof was presented to show any persecution of the
accused, political or otherwise, unlike in the Tatad case. There is no showing
that petitioner was made to endure any vexatious process during the two-
year period before the filing of the proper informations, unlike in the
Angchangco case where petitioner therein was deprived of his retirement
benefits for an unreasonably long time. Thus, the circumstances present in
the Tatad and Angchangco cases justifying the "radical relief" granted by us
in said cases are not existent in the present case."15 (Emphasis supplied)
Second. Even if We were to reckon the period from when respondent was
administratively charged to the point when the Ombudsman found
respondent administratively liable, We still find no violation of the right to
speedy disposition of cases.
In making a determination of what constitutes a violation of the right to the
speedy disposition of cases, this Court has time and again employed the
balancing test. The balancing test first adopted by the United States Supreme
Court in Barker v. Wingo16 was crucial in the Court’s resolution of the recent
case of Perez v. People:17
Page 11 of 14
The Court went on to adopt a middle ground: the "balancing test," in which
"the conduct of both the prosecution and defendant are weighed." Mr. Justice
Powell, ponente, explained the concept, thus:
A balancing test necessarily compels courts to approach speedy trial cases on
an ad hoc basis. We can do little more than identify some of the factors which
courts should assess in determining whether a particular defendant has been
deprived of his right. Though some might express them in different ways, we
identify four such factors: Length of delay, the reason for the delay, the
defendant’s assertion of his right, and prejudice to the defendant.
The length of the delay is to some extent a triggering mechanism. Until there
is some delay which is presumptively prejudicial, there is no necessity for
inquiry into the other factors that go into the balance. Nevertheless, because
of the imprecision of the right to speedy trial, the length of delay that will
provoke such an inquiry is necessarily dependent upon the peculiar
circumstances of the case. To take but one example, the delay that can be
tolerated for an ordinary street crime is considerably less than for a serious,
complex conspiracy charge.
Closely related to length of delay is the reason the government assigns to
justify the delay. Here, too, different weights should be assigned to different
reasons. A deliberate attempt to delay the trial in order to hamper the
defense should be weighted heavily against the government. A more neutral
reason such as negligence or overcrowded courts should be weighted less
heavily but nevertheless should be considered since the ultimate
responsibility for such circumstances must rest with the government rather
than with the defendant. Finally, a valid reason, such as a missing witness,
should serve to justify appropriate delay. We have already discussed the third
factor, the defendant’s responsibility to assert his right. Whether and how a
defendant asserts his right is closely related to the other factors we have
mentioned. The strength of his efforts will be affected by the length of the
delay, to some extent by the reason for the delay, and most particularly by the
personal prejudice, which is not always readily identifiable, that he
experiences. The more serious the deprivation, the more likely a defendant is
to complain. The defendant’s assertion of his speedy trial right, then, is
entitled to strong evidentiary weight in determining whether the defendant is
being deprived of the right. We emphasize that failure to assert the right will
make it difficult for a defendant to prove that he was denied a speedy trial.
A fourth factor is prejudice to the defendant. Prejudice, of course, should be
assessed in the light of the interests of defendants which the speedy trial right
was designed to protect. This Court has identified three such interests: (i) to
prevent oppressive pretrial incarceration; (ii) to minimize anxiety and
concern of the accused; and (iii) to limit the possibility that the defense will
be impaired. Of these, the most serious is the last, because the inability of a
defendant adequately to prepare his case skews the fairness of the entire
system. If witnesses die or disappear during a delay, the prejudice is obvious.
There is also prejudice if defense witnesses are unable to recall accurately
events of the distant past. Loss of memory, however, is not always reflected in
the record because what has been forgotten can rarely be shown.18
(Underscoring supplied)
The Court likewise held in Dela Peña v. Sandiganbayan:19
The concept of speedy disposition is relative or flexible. A mere mathematical
reckoning of the time involved is not sufficient. Particular regard must be
taken of the facts and circumstances peculiar to each case. Hence, the
doctrinal rule is that in the determination of whether that right has been
violated, the factors that may be considered and balanced are as follows: (1)
the length of the delay; (2) the reasons for the delay; (3) the assertion or
failure to assert such right by the accused; and (4) the prejudice caused by the
delay.20
To reiterate, there is a violation of the right to speedy disposition of cases
when the proceedings are attended by vexatious, capricious, and oppressive
delays; or when unjustified postponements of the trial are asked for and
secured, or when without cause or justifiable motive a long period of time is
allowed to elapse without the party having his case tried.21
In Tatad v. Sandiganbayan,22 this Court found the delay of almost three (3)
years in the conduct of the preliminary investigation violative of the rights of
the accused to due process and speedy disposition of cases. Said the Court:
We find the long delay in the termination of the preliminary investigation by
the Tanodbayan in the instant case to be violative of the constitutional right
of the accused to due process. Substantial adherence to the requirements of
the law governing the conduct of preliminary investigation, including
substantial compliance with the time limitation prescribed by the law for the
resolution of the case by the prosecutor, is part of the procedural due process
constitutionally guaranteed by the fundamental law. Not only under the
broad umbrella of the due process clause, but under the constitutional
guarantee of "speedy disposition" of cases as embodied in Section 16 of the
Bill of Rights (both in the 1973 and 1987 Constitution), the inordinate delay is
violative of the petitioner’s constitutional rights. A delay of close to three (3)
years can not be deemed reasonable or justifiable in the light of the
circumstances obtaining in the case at bar. We are not impressed by the
attempt of the Sandiganbayan to sanitize the long delay by indulging in the
speculative assumption that "the delay may be due to a painstaking and
gruelling scrutiny by the Tanodbayan as to whether the evidence presented
during the preliminary investigation merited prosecution of a former high-
ranking government official." In the first place, such a statement suggests a
double standard of treatment, which must be emphatically rejected.
Secondly, three out of the five charges against the petitioner were for his
alleged failure to file his sworn statement of assets and liabilities required by
Republic Act No. 3019, which certainly did not involve complicated legal and
factual issues necessitating such "painstaking and grueling scrutiny" as would
justify a delay of almost three years in terminating the preliminary
investigation. The other two charges relating to alleged bribery and alleged
giving of unwarranted benefits to a relative, while presenting more
substantial legal and factual issues, certainly do not warrant or justify the
period of three years, which it took the Tanodbayan to resolve the case.
It has been suggested that the long delay in terminating the preliminary
investigation should not be deemed fatal, for even the complete absence of a
preliminary investigation does not warrant dismissal of the information. True
– but the absence of a preliminary investigation can be corrected by giving
the accused such investigation. But an undue delay in the conduct of the
preliminary investigation can not be corrected, for until now, man has not yet
invented a device for setting back time.23
Too, in Angchangco v. Ombudsman,24 this Court ruled that the delay of
almost six (6) years in resolving the criminal charges constitutes a violation
of the right of the accused to due process and speedy disposition of the cases
against them.
Here, the circumstance attendant in Tatad and Angchangco are clearly
absent. Records reveal that on September 29, 1997, the FFB of the OMB
recommended that respondent be criminally and administratively charged.
Subsequently, the OMB approved the recommendation on October 17, 1997.
Respondent submitted his counter-affidavit on February 2, 1998 and motion
to dismiss on October 8, 1998 before the Administrative Adjudication Bureau
of the OMB. On August 16, 1999, the AAB rendered a decision finding
petitioner administratively liable for neglect of duty. More or less, a period of
two (2) years lapsed from the fact-finding report and recommendation of the
FFB until the time that the AAB rendered its assailed decision.
To our mind, the time it took the Ombudsman to complete the investigation
can hardly be considered an unreasonable and arbitrary delay as to deprive
respondent of his constitutional right to the speedy disposition of his case.
Further, there is nothing in the records to show that said period was
characterized by delay which was vexatious, capricious or oppressive. There
was no inordinate delay amounting to a violation of respondent’s
constitutional rights. The assertion of respondent that there was a violation
of his right to the speedy disposition of cases against him must necessarily
fail.
Respondent administratively
liable for neglect of duty.
It is elementary that the dismissal of criminal charges will not necessarily
result in the dismissal of the administrative complaint based on the same set
of facts.25 The quantum of evidence in order to sustain a conviction for a
criminal case is different from the proof needed to find one administratively
liable. Rule 133, Section 2 of the Rules of Court provides that for criminal
cases, conviction is warranted only when the guilt is proven beyond
reasonable doubt. Proof beyond reasonable doubt is defined as moral
certainty, or that degree of proof which produces conviction in an
unprejudiced mind.26 On the other hand, the quantum of evidence necessary
to find an individual administratively liable is substantial evidence. Rule 133,
Section 5 of the Rules of Court states:
Page 12 of 14
Sec. 5. Substantial evidence. – In cases filed before administrative or quasi-
judicial bodies, a fact may be deemed established if it is supported by
substantial evidence, or that amount of relevant evidence which a reasonable
mind might accept as adequate to justify a conclusion. (Underscoring
supplied)
Substantial evidence does not necessarily mean preponderant proof as
required in ordinary civil cases, but such kind of relevant evidence as a
reasonable mind might accept as adequate to support a conclusion or
evidence commonly accepted by reasonably prudent men in the conduct of
their affairs.27
In Office of the Court Administrator v. Enriquez,28 the Court ruled:
x x x Be that as it may, its dismissal of the criminal case on the ground of
insufficiency of evidence was never meant, as respondent doggedly believed
and arrogantly asserted, to foreclose administrative action against him or to
give him a clean bill of health in all respects. The Sandiganbayan, in
dismissing the same, was simply saying that the prosecution was unable to
prove the guilt of the respondent beyond reasonable doubt, a condition sine
qua non for conviction because of the presumption of innocence which the
Constitution guarantees an accused. Lack or absence of proof beyond
reasonable doubt does not mean an absence of any evidence whatsoever for
there is another class of evidence which, thought insufficient to establish guilt
beyond reasonable doubt, is adequate in civil cases; this is preponderance of
evidence. Then too, there is the "substantial evidence" rule in administrative
proceedings which merely requires in these cases such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.29
Verily, respondent can still be held administratively liable despite the
dismissal of the criminal charges against him.
We now discuss the administrative liability of respondent for neglect of duty.
We opt to reexamine the records considering the divergent findings of the
Ombudsman and the CA.
It is undisputed that respondent was the Chief of the Warehousing Inspection
Division (WID) of the Bureau of Customs. The WID is the inspection and
audit arm of the District Collector of Customs.
On March 16, 1992, CBW Inspector Baliwag submitted a report to respondent
showing the result of the ocular inspection of the proposed warehouse of
applicant Maglei. The report stated: "approval respectfully recommended
subject to re-inspection before transfer of imported goods is allowed."30
On March 16, 1992, respondent, as Chief of the WID, issued a 1st
Indorsement31 concurring with the recommendation of CBW Inspector
Baliwag that the application of Maglei be approved.
Respondent’s indorsement was then submitted to the Chief of the MMBWD
for comment and recommendation. The Chief of the MMBWD eventually
recommended that Maglei’s application be approved since it has complied
with all the necessary physical and documentary requirements. Following the
indorsements of the different divisions of the Bureau of Customs, Maglei was
eventually granted the authority to operate a CBW despite the fact that the
records disclose that there was no actual warehouse to speak of.
Respondent posits that since he was not the approving officer for application
for CBWs nor was it his duty or obligation to conduct re-inspection of the
subject warehouse premises, he cannot be held liable for neglect of duty.
The CA, in its decision, declared that respondent cannot be held liable for
negligence for the simple reason that it was not respondent’s duty to make
the inspection and verification of Maglei’s application.
We cannot agree.
The finding of the Ombudsman in OMB-ADM-0-97-0656 is more in accord
with the evidence on record:
Evidence on record shows that on 16 March 1992, respondent Juanito
Baliwag (Customs Bonded Warehouse Supervisor) submitted an Inspection
Report of the same date showing the result of an ocular inspection of the
proposed warehouse of applicant Maglei Enterprises with the
recommendation: "approval respectfully recommended subject to re-
inspection before the transfer of imported goods is allowed" and with the
observation that construction is going on for compartments for raw
materials, finished products and wastages by products. On the same date, 16
March 1992, respondent Ben Jurado (Chief, Warehousing Inspection
Division) issued 1st Indorsement concurring with the recommendation of
CBW Inspector and co-respondent Juanito Baliwag for the approval of the
application.
xxxx
On 08 July 1992, respondent Rolando Mendoza directed George Dizon
(Documents Processor) to verify the existence and operation of several
bonded warehouses including the warehouse of applicant Maglei Enterprises.
On 23 July 1992, the same George Dizon was again directed by respondent
Rolando Mendoza to verify the transfer of shipment covered Boat No.
13853454 in a container van with No. GSTV 824227 to the warehouse of
Maglei Enterprises (CBW No. M-1467). In those two occasions, respondent
George Dizon reported the existence of the applicant’s Warehouse located at
No. 129 Jose Bautista Avenue, Caloocan City.
xxxx
Evidence on records likewise revealed that No. 129 Jose Bautista Avenue,
Caloocan City which was given as the location address of CBW No. M-1467 is
actually the address of a school, that of the School of Divine Mercy.
xxxx
While respondent Dizon was authorized to verify the existence of Maglei
Enterprises Warehouse, it is admitted that he did not even look and see the
premises of the alleged warehouse. Likewise, CBW Supervisor and co-
respondent Baliwag made a report on the existence of the bonded warehouse
earlier on 16 March 1992 in his Compliance with Structural Requirements
For Customs Bonded Warehouse Inspection Report. Both Dizon and Baliwag
reported the existence of the Warehouse in their respective and separate
reports.
On the basis of the foregoing undisputed facts, it is apparent that the
immediate cause of the injury complained of was occasioned not only by the
failure of the CBW Inspectors to conduct an ocular inspection of the premises
in a manner and in accordance with the existing Customs rules and
regulations as well as the failure of their immediate supervisors to verify the
accuracy of the reports, but also by subverting the reports by making
misrepresentation as to the existence of the warehouse.
xxxx
Respondent, Ben Jurado, the Chief of the WID, cannot likewise escape
liability for Neglect of Duty since his Office is the inspection arm of the
District Collector of Customs.32
As adverted to earlier, the Warehousing Inspection Division is the inspection
and audit arm of the Bureau of Customs. Respondent Jurado, as chief of the
said division, was duty-bound to verify the accuracy of the reports furnished
by his subordinates. We agree with the Ombudsman that respondent failed to
validate the report of Baliwag and initiate, institute or recommend the
conduct of appropriate investigation immediately upon discovery of the
irregularity. As a supervisor, respondent was clearly negligent in the
performance of his duties.
In Philippine Gamefowl Commission v. Intermediate Appellate Court,33
defined the power of supervision as "overseeing or the power or authority of
an officer to see that their subordinate officials perform their duties."34 The
Court added that in case the subordinate fails or neglects to fulfill his or her
duties, it is the supervisor’s responsibility to take such action or steps as
prescribed by law to make them perform their duties.35 The doctrine was
reiterated in Deang v. Intermediate Appellate Court36 and Municipality of
Malolos v. Libangang Malolos, Inc.37
It bears stressing that public office is a public trust.38 When a public officer
takes his oath of office, he binds himself to perform the duties of his office
faithfully and to use reasonable skill and diligence, and to act primarily for
the benefit of the public. Thus, in the discharge of his duties, he is to use that
prudence, caution and attention which careful men use in the management of
their affairs.39 Public officials and employees are therefore expected to act
with utmost diligence and care in discharging the duties and functions of
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their office. Unfortunately, respondent failed to measure up to this standard.
Clearly, respondent should be held administratively liable for neglect of duty.

Neglect of duty is the failure of an employee to give proper attention to a task

expected of him, signifying "disregard of a duty resulting from carelessness or
indifference."40 By merely acquiescing to the report and recommendation of
his subordinate without verifying its accuracy, respondent was negligent in
overseeing that the duties and responsibilities of the WID were performed
with utmost responsibility. Respondent was likewise negligent when he
failed, as supervisor, to initiate, institute, or recommend investigation and
disciplinary proceedings against his subordinate Baliwag after the anomaly
was discovered. Clearly, respondent failed to exercise the degree of care, skill,
and diligence which the circumstances warrant.

We are of course not unaware that as a general rule, superior officers cannot
be held liable for the acts of their subordinates. However, there are
exceptions, viz.: (1) where, being charged with the duty of employing or
retaining his subordinates, he negligently or willfully employs or retains unfit
or improper persons; or (2) where, being charged with the duty to see that
they are appointed and qualified in a proper manner, he negligently or
willfully fails to require of them the due conformity to the prescribed
regulations; or (3) where he so carelessly or negligently oversees, conducts or
carries on the business of his office as to furnish the opportunity for the
default; or (4) and a fortiori where he has directed, authorized or cooperated
in the wrong.41

In Advincula v. Dicen,42 the Court found a provincial agriculturist liable for

misconduct despite his protestations anchored on reliance to a subordinate.
In finding him liable, the Court scored the said official for failing to scrutinize
each and every document proffered to him by subordinates. In Amane v.
Mendoza-Arce,43 respondent clerk of court was held liable for neglect of duty
for failing to discipline her subordinates and make sure that they regularly
and promptly performed their duties. In the case under review, respondent
was careless or negligent in overseeing, conducting, or carrying on the
business of his office as to furnish the opportunity for the default of a
subordinate.

WHEREFORE, the petition is GRANTED and the appealed Decision

REVERSED AND SET ASIDE. The Decision of the Ombudsman in OMB-
ADM-0-97-0656 finding respondent guilty of neglect of duty is
REINSTATED.

SO ORDERED.

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