Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

GR. No. L-48928 February 25, 1982

MITA PARDO DE TAVERA, plaintiff-appellant,

vs.
PHILIPPINE TUBERCULOSIS SOCIETY, INC., FRANCISCO ORTIGAS, JR.,
MIGUEL CAIZARES, BERNARDO P. PARDO, RALPH NUBLA, MIDPANTAO
ADIL, ENRIQUE GARCIA, ALBERTO G. ROMULO and THE PRESENT
BOARD OF DIRECTORS, PHILIPPINE TUBERCULOSIS SOCIETY, INC.,
defendants- appellees.

GUERRERO, J.:

On March 23, 1976, plaintiff-appellant Mita Pardo de Tavera filed with the Court of
First Instance of Rizal a complaint against the Philippine Tuberculosis Society, Inc.
(hereinafter referred to as the Society), Miguel Canizares, Ralph Nubla, Bernardo
Pardo, Enrique Garcia, Midpantao Adil, Alberto Romulo, and the present Board of
Directors of the Philippine Tuberculosis Society, Inc.

On April 12, 1976, plaintiff-appellant filed an amended complaint impleading

Francisco Ortigas, Jr. as party defendant.

In substance, the complaint alleged that plaintiff is a doctor of Medicine by

profession and a recognized specialist in the treatment of tuberculosis, having
been in the continuous practice of her profession since 1945; that she is a
member of the Board of Directors of the defendant Society, in representation of
the Philippine Charity Sweepstakes Office; that she was duly appointed on April
27, 1973 as Executive Secretary of the Society; that on May 29, 1974, the past
Board of Directors removed her summarily from her position, the lawful cause of
which she was not informed, through the simple expedient of declaring her
position vacant; that immediately thereafter, defendant Alberto Romulo was
appointed to the position by an affirmative vote of seven directors, with two
abstentions and one objection; and that defendants Pardo, Nubla, Garcia and Adil,
not being members of defendant Society when they were elevated to the position
of members of the Board of Directors, are not qualified to be elected as such and
hence, all their acts in said meeting of May 29, 1974 are null and void.

The defendants filed their answer on May 12, 1976, specifically denying that
plaintiff was illegally removed from her position as Executive Secretary and
averring that under the Code of By-Laws of the Society, said position is held at the
pleasure of the Board of Directors and when the pleasure is exercised, it only
means that the incumbent has to vacate the same because her term has expired;
that defendants Pardo, Nubla, Adil and Garcia were, at the time of their election,
members of the defendant Society and qualified to be elected as members of the
Board, that assuming that said defendants were not members of defendant
Society at the time of their election, the question of qualification of the members of
the Board of Directors should have been raised at the time of their election: that
assuming that the qualification of members of the Board of Directors can be
questioned after their assumption of their offices as directors, such contest cannot
be done in a collateral action; that an action to question the qualifications of the
Directors must be brought within one year from their election; and that a Director
elected without necessary qualification becomes at least a de facto director,
whose acts are as valid and binding as a de jure director. Further, defendant
disputed the timeliness of the filing of the action stating that an action to question
one's ouster from a corporate office must be filed within one year from said ouster.

On the same date, defendant Adil filed a Motion to Dismiss on the ground that the
complaint states no cause of action, or if it does, the same has prescribed.
Inasmuch as plaintiff seeks reinstatement, he argued that the complaint is an
action for quo warranto and hence, the same should be commenced within one
year from May 29, 1974 when the plaintiff was ousted from her position.

Plaintiff filed an Opposition to Motion to Dismiss on May 28, 1976, stating that the
complaint is a suit for damages filed under the authority of Section 6, Article 11 of
the present Constitution in relation to Articles 12 and 32(6) of the New Civil Code,
and her constitutional right to equal protection of the law, as guaranteed by
Section 1, Article IV of the present Constitution.

On June 2, 1976, defendant Adil filed a Reply to Plaintiff's Opposition to Motion to

Dismiss arguing that since there is an averment of plaintiff's right to office, and
that defendant Romulo is unlawfully in possession thereof, their it is indeed, a
case for quo warranto; and that assuming that it is merely a suit for damages, then,
the same is premature, pursuant to Section 16, Rule 66 of the Rules of Court.

On September 3, 1976, the coturt a quo rendered a decision holding that the
present suit being one for quo warranto it should be filed within one year from
plaintiff's outer from office; that nevertheless, plaintiff was not illegally rendered or
used from her position as Executive Secretary in The Society since plaintiff as
holding an appointment all the pleasure of the appointing power and hence her
appointment in essence was temporary in nature, terminable at a moment's notice
without need to show that the termination was for cause; and Chat plaintiff's
ouster from office may not be challenged on the ground that the acts of
defendants Pardo, Adil, Nubla and Garcia are null and void, they being not
qualified to be elected members of the Board of Directors because the
qualifications of the members of the Board of Directors which removed plaintiff
from office may not be the subject of a collateral attack in the present suit for quo
warranto affecting title to the office of Executive Secretary.

On October 13, 1976, plaintiff filed a Motion for Reconsideration to which

defendants filed an Opposition. On November 25, 1976, the court a quo denied
the motion for Reconsideration.

Dissatisfied with the decision and the order denying the motion for reconsideration.
plaintiff filed a Notice of Appeal and an Urgent Motion for Extension of Time to File
Record on Appeal, which was granted in an order dated December 15, 1976.
However, on December 20, 1976, the court a quo issued an amended order
where it qualified the action as principally one for quo warranto and hence,
dispensed with the filing of a record on appeal as the original records of the case
are required to be elevated to the Court of Appeals.

On August 8, 1978, the Court of Appeals issued a resolution certifying this case to
this Court considering that the appeal raises no factual issues and involves only
issues of law, as may be

gleaned from the following assignments of errors:

I. The lower court erred in holding that the present case is one for quo warranto
and not an action for damages.

II. In deciding the case, the lower court erred in not upholding the Society's
By-Laws, the applicable laws, and the pertinent provisions of the Constitution.

III. The lower court erred in holding that the plaintiff-appellant is not in the civil
service, and therefore, not entitled to the guaranty against removal from office
except for cause and after due process of law.

The nature of an action filed in court is determined by the facts alleged in the
complaint as constituting the cause of action, and not those averred as a defense
in the defendant's answer. The theory adopted by the plaintiff in his complaint is
one thing; that by the defendant in his answer another. The purpose of an action
or suit and the law to govern it, including the period of prescription, is to be
determined not by the claim of the party filing the action, made in his argument or
brief, but rather by the complaint itself, its allegations and prayer for relief. Rone et
al. vs. Claro, et al., L-4472, May 8, 1952, 91 Phil. 250). In Baguioro vs. Barrios, et
al., 77 Phil. 120, the Supreme Court held that if the relief demanded is not the
proper one which may be granted under the law, it does not characterize or
determine the nature of plaintiff's action, and the relief to which plaintiff is entitled
based on the facts alleged by him in his complaint, although it is not the relief
demanded, is what determines the nature of the action.
While it is true that the complaint questions petitioner's removal from the position
of Executive Secretary and seeks her reinstatement thereto, the nature of the suit
is not necessarily one of quo warranto. The nature of the instant suit is one
involving a violation of the rights of the plaintiff under the By-Laws of the Society,
the Civil Code and the Constitution, which allegedly renders the individuals
responsible therefore, accountable for damages, as may be gleaned from the
following allegations in the complaint as constituting the plaintiff's causes of action,
to wit:

20. That, as a consequence of the unfair and malicious removal of plaintiff from
her office, which the plaintiff maintains to be contrary to morals, good customs,
public policy, the pertinent provisions of said By-Laws of the Society, the laws,
and the guarranties of the Constitution, by defendants Canizares, Ortigas Jr.,
Pardo, Adil, Nubla and Garcia, the plaintiff suffered not only material damages,
but serious damage to her priceless properties, consisting of her honor and
reputation, which were maliciously and unlawfully besmirched, thereby entitling
her to compensation for material and moral damages, from said defendants,
jointly and severally, under Article 21, in relation to Article 32(6) of the New Civil
Code;

xxx xxx xxx

24. That as a consequence of the inordinate use and abuse of power by

defendants, Caares Ortigas Jr., Pardo, Adil, Nubla and Garcia, in arbitrarily,
illegally, and unjustly removing the plaintiff from office, without due process of law,
and in denying to her the enjoyment of the guaranty of the Constitution to equal
protection of the law, the plaintiff suffered material and moral damages as a result
of the debasement of her dignity, both as an individual and as a professional
(physician) of good standing, therefore, defendant Caares Ortigas Jr., Pardo, Adil,
Nubla and Garcia should be ordered to pay her moral damages, jointly and
severally;

xxx xxx xxx

26. That the acts of the defendants Canizares, Ortigas Jr., Pardo, Adil, Nubla and
Garcia, in illegally removing the plaintiff from her position as Executive Secretary
of defendant Society, which plaintiff was then holding under a valid appointment
and thereafter, immediately appointing defendant Alberto Romulo to the position,
is most unfair, unjust and malicious, because it is contrary to good morals, good
customs, public policy, the pertinent provisions of the Code of By-Laws of the
defendant Society, the laws and the aforementioned guarranties of the
Constitution; that the plaintiff complaint that the said defendants are legally
obligated to compensate her, in concept of exemplary damages, in order to
restrain persons in authority from committing similar file I and un constitutional
acts which debase human dignity and inflict injuries to their fellowmen;
xxx xxx xxx

31. That, as a consequence of the said unjustified refusal of the defendant,

present Board of Directors of the defendant Society, to resolve the complaint of
the plaintiff and extend to her the reliefs to which she is entitled under the law and
the Constitution, it is respectfully submitted that said defendant Board is under
legal obligation to correct the illegal and unconstitutional act of defendants Caares
Ortigas Jr., Pardo, Nubla, Adil and Garcia, by restoring the plaintiff to her position
as Executive Secretary of the defendant Society, payment of salaries and other
benefits, corresponding to the period of her illegal and unconstitutional removal
from office.

Further, it must be noted that the action is not only against Alberto Romulo, the
person appointed in her stead, but also against the Society and the past and
present members of the Board. In fact, Romulo is sued as present occupant of the
office and not to hold him accountable for damages because he did not participate
in the alleged illegal and unconstitutional removal of plaintiff- appellant. The action
is primarily against the Society and the past members of the Board who are
responsible for her removal. The present Board of Directors has been implead as
party defendant for the purpose merely of enabling it to act, "to reinstate the
plaintiff to her position as Executive Secretary of the defendant Society" being one
of the reliefs prayed for in the prayer of the complaint.

Hence, We hold that where the respondents, except for one, namely, Alberto
Romulo, are not actually holding the office in question, the suit could not be one
for quo warranto.

Corollarily, the one-year period fixed in Section 16, Rule 66 of the Revised Rules
of Court within which a petition for quo warranto should be filed, counted from the
date of ouster, does not apply to the case at bar. The action must be brought
within four (4) years, in accordance with Valencia vs. Cebu Portland Cement Co.,
et al., L-13715, December 23, 1959, 106 Phil. 732, case involving a plaintiff
separated from his employment for alleged unjustifiable causes, where this Court
held that the action n is one for "injury to the rights of the plaintiff, and must be
brought within 4 years murder Article 1146 of the New Civil Code .

Nonetheless, although the action is not barred by the statute of limitations, We

rule that it will not prosper. Contrary to her claim, petitioner was not illegally
removed or from her position as Executive Secretary in violation of Code of
By-laws of the Society. the New Civil Code and the pertinent provisions of the
Constitution.

Petitioner claims and the respondents do not dispute that the Executive Secretary
is an officer of the Society pursuant to provision in the Code of By-laws Laws:
Section 7.01. Officers of the Society. The executed officers f the Society shag
be the President a Vice-President, a Treasurer who shall be elected by the Board
of Directors, Executive Secretary, and an Auditor, who shall be appointed by the
Board of Directors, all of whom shall exercise the functions. powers and
prerogatives generally vested upon skich officers, the functions hereinafter set out
for their respective offices and such other duties is from time to time, may be
prescribed by the Board of Directors. On e person may hold more than one office
except when the functions thereof are incompatible with each other.

It is petitioner's contention that she is subject, to removal pursuant to Section 7.04

of the Code of By-laws which respondents correctly dispute citing Section 7.02 of
the same Cede. The aforementioned provisions state as follows:

Section 7.02. Tenure of Office. All executive officers of the Society except the
Executive Secretary and the Auditor shall be elected the Board of Directors, for a
term of one rear ind shall hold office until their successors are elected and have
qualified. The Executive secretary, the Auditor and all other office ers and
employees of the Society shall hold office at the pleasure of the Board of Directors,
unless their term of employment shall have been fixed in their contract of
employment.

xxx xxx xxx

Section 7.04. Removal of Officers and Employees. All officers and employees
shall be subject to suspension or removal for a sufficient cause at any time by
affirmative vote of a majority of an the members of the Board of Directors, except
that employees appointed by the President alone or by the other officers alone at
the pleasure of the officer appointing him.

It appears from the records, specifically the minutes of the special meeting of the
Society on August 3, 1972, that petitioner was designated as Acting Executive
Secretary with an honorarium of P200.00 monthly in view of the application of Dr.
Jose Y. Buktaw for leave effective September 1, 1972 for 300 working days. This
designation was formalized in Special Order No. 110, s. 1972 wherein it was
indicated that: "This designation shall take effect on September 1, 1972 and shall
remain until further advice."

In the organizational meeting of the Society on April 25, 1973, the minutes of the
meeting reveal that the Chairman mentioned the need of appointing a permanent
Executive Secretary and stated that the former Executive Secretary, Dr. Jose Y.
Buktaw, tendered his application for optional retirement, and while on terminal
leave, Dr. Mita Pardo de Tavera was appointed Acting Executive Secretary. In
view thereof, Don Francisco Ortigas, Jr. moved, duly seconded, that Dr. Mita
Pardo de Tavera be appointed Executive Secretary of the Philippine Tuberculosis
Society, Inc. The motion was unanimously approved.
On April 27, 1973, petitioner was informed in writing of the said appointment, to
wit:

Dr. Mita Pardo de Tavera

Philippine Tuberculosis Society, Inc.

Manila

Madam:

I am pleased to inform you that at the meeting of the Board of Directors held on
April 25, 1973, you were appointed Executive Secretary, Philippine Tuberculosis
Society, Inc. with such compensation ,petition and allowances as are provided for
in the Budget of the Society, effective immediately, vice Dr. Jose Y. Buktaw,
retired.

Congratulations.

Very truly yours,

For the Board of Directors:

(Sgd) Miguel Canizares,

M.D. MIGUEL CARIZARES, M.D.

President

Although the minutes of the organizational meeting show that the Chairman
mentioned the need of appointing a "permanent" Executive Secretary, such
statement alone cannot characterize the appointment of petitioner without a
contract of employment definitely fixing her term because of the specific provision
of Section 7.02 of the Code of By-Laws that: "The Executive Secretary, the
Auditor, and all other officers and employees of the Society shall hold office at the
pleasure of the Board of Directors, unless their term of employment shall have
been fixed in their contract of employment." Besides the word permanent" could
have been used to distinguish the appointment from acting capacity".

The absence of a fixed term in the letter addressed to petitioner informing her of
her appointment as Executive Secretary is very significant. This could have no
other implication than that petitioner held an appointment at the pleasure of the
appointing power.

An appointment held at the pleasure of the appointing power is in essence

temporary in nature. It is co-extensive with the desire of the Board of Directors.
Hence, when the Board opts to replace the incumbent, technically there is no
removal but only an expiration of term and in an expiration of term, there is no
need of prior notice, due hearing or sufficient grounds before the incumbent can
be separated from office. The protection afforded by Section 7.04 of the Code of
By-Laws on Removal of Officers and Employees, therefore, cannot be claimed by
petitioner.

Thus, in the case of Moji vs. Mario 13 SCRA 293, where the appointment
contains the following proviso: that it may be terminated at anytime without any
proceedings, at the pleasure of the President of the Philippines, this Court held: "It
may, therefore, be said that, though not technically a temporary appointment, as
this term is used in Section 24(b) of the Civil Service Act of 1959, petitioner's
appointment in essence is temporary because of its character that it is terminable
at the pleasure of the appointing power. Being temporary in nature, the
appointment can be terminated at a moment's notice without need to show cause
as required in appointments that belong to the classified service."

In Paragas vs. Bernal 17 SCRA 150, this Court distinguished between removal
and expiration of term .

In the case at bar there has been, however, no removal from office. Pursuant to
the charter of Dagupan City, the Chief of Police thereof holds office at the
pleasure of the President. Consequently, the term of office of the Chief of Police
expires at any time that the President may so declare. This is not removal,
inasmuch as the latter entails the ouster of an incumbent before the expiration of
his term. In the present case, petitioner's term merely expired upon receipt by him
of the communication of respondent Assistant Executive Secretary of the
President, dated September 14, 1962.

Petitioner cannot likewise seek relief from the general provisions of the New Civil
Code on Human Relations nor from the fundamental principles of the New
Constitution on preservation of human dignity. While these provisions present
some basic principles that are to be observed for the rightful relationship between
human beings and the stability of social order, these are merely guides for human
conduct in the absence of specific legal provisions and definite contractual
stipulations. In the case at bar, the Code of By-Laws of the Society contains a
specific provision governing the term of office of petitioner. The same necessarily
limits her rights under the New Civil Code and the New Constitution upon
acceptance of the appointment.

Moreover, the act of the Board in declaring her position as vacant is not only in
accordance with the Code of By-Laws of the Society but also meets the exacting
standards of honesty and good faith. The meeting of May 29, 1974, at which
petitioner ,petitioner's position was declared vacant, was caged specifically to take
up the unfinished business of the Reorganizational Meeting of the Board of April
30, 1974. Hence, and act cannot be said to impart a dishonest purpose or some
moral obliquity and conscious doing to wrong but rather emanates from the desire
of the Board to reorganize itself.

Finally, We find it unnecessary to resolve the third assignment of error. The

proscription against removal without just cause and due process of law under the
Civil Service Law does not have a bearing on the case at bar for the reason, as
We have explained, that there was no removal in her case but merely an
expiration of term pursuant to Section 7.02 of the Code of By-Laws. Hence,
whether or not the petitioner falls within the protective mantle of the Civil Service
Law is immaterial and definitely unnecessary to resolve this case.

WHEREFORE, premises considered, the decision of the lower court holding that
petitioner was not illegally removed or ousted from her position as Executive
Secretary of the Philippine Tuberculosis Society, Inc., is hereby AFFIRMED.

SO ORDERED.

Teehankee (Chairman), Fernandez and Plana, JJ., concur,

Makasiar, J., concur in the result.

Melencio-Herrera, J., took no part.

EN BANC

LIWAYWAY VINZONS-CHATO, G.R. No. 141309

Petitioner,

Present:

PUNO, C.J.,
 QUISUMBING,

YNARES-SANTIAGO,

CARPIO,

AUSTRIA-MARTINEZ,

- versus - CORONA,*

CARPIO MORALES,

AZCUNA,

TINGA,

CHICO-NAZARIO,

VELASCO, JR.,

NACHURA,

REYES,

LEONARDO-DE CASTRO, and

BRION, JJ.

FORTUNE TOBACCO
CORPORATION,
Promulgated:
Respondent.

December 23, 2008

x-----------------------------------------------------------------------------------------x

RESOLUTION

NACHURA, J.:

* On leave.
 It is a fundamental principle in the law of public officers that a duty owing to
the public in general cannot give rise to a liability in favor of particular
individuals.2[1] The failure to perform a public duty can constitute an individual
wrong only when a person can show that, in the public duty, a duty to himself as
an individual is also involved, and that he has suffered a special and peculiar
injury by reason of its improper performance or non-performance.3[2]

By this token, the Court reconsiders its June 19, 2007 Decision4[3] in this
case.

As culled from the said decision, the facts, in brief, are as follows:

On June 10, 1993, the legislature enacted Republic Act No.

7654 (RA 7654), which took effect on July 3, 1993. Prior to its
effectivity, cigarette brands Champion, Hope, and More were
considered local brands subjected to an ad valorem tax at the rate of
20-45%. However, on July 1, 1993, or two days before RA 7654
took effect, petitioner issued RMC 37-93 reclassifying Champion,
Hope, and More as locally manufactured cigarettes bearing a
foreign brand subject to the 55% ad valorem tax. RMC 37-93 in
effect subjected Hope, More, and Champion cigarettes to the

2[1] Cruz, The Law of Public Officers, 2007 ed., p. 223.

3[2] Moss v. Cummins, 44 Mich. 359, 360-361, 6 N.W. 843, 844 (1880).

4[3] Rollo, pp. 630-645; Vinzons-Chato v. Fortune Tobacco Corporation, G.R. No.
141309, June 19 2007, 525 SCRA 11.
provisions of RA 7654, specifically, to Sec. 142, (c)(1) on locally
manufactured cigarettes which are currently classified and taxed at
55%, and which imposes an ad valorem tax of 55% provided that
the minimum tax shall not be less than Five Pesos (P5.00) per pack.

On July 2, 1993, at about 5:50 p.m., BIR Deputy

Commissioner Victor A. Deoferio, Jr. sent via telefax a copy of RMC
37-93 to Fortune Tobacco but it was addressed to no one in
particular. On July 15, 1993, Fortune Tobacco received, by ordinary
mail, a certified xerox copy of RMC 37-93. On July 20, 1993,
respondent filed a motion for reconsideration requesting the recall of
RMC 37-93, but was denied in a letter dated July 30, 1993. The
same letter assessed respondent for ad valorem tax deficiency
amounting to P9,598,334.00 (computed on the basis of RMC 37-93)
and demanded payment within 10 days from receipt thereof. On
August 3, 1993, respondent filed a petition for review with the Court
of Tax Appeals (CTA), which on September 30, 1993, issued an
injunction enjoining the implementation of RMC 37-93. In its
decision dated August 10, 1994, the CTA ruled that RMC 37-93 is
defective, invalid, and unenforceable and further enjoined petitioner
from collecting the deficiency tax assessment issued pursuant to
RMC No. 37-93. This ruling was affirmed by the Court of Appeals,
and finally by this Court in Commissioner of Internal Revenue v.
Court of Appeals. It was held, among others, that RMC 37-93, has
fallen short of the requirements for a valid administrative issuance.

On April 10, 1997, respondent filed before the RTC a

complaint for damages against petitioner in her private capacity.
Respondent contended that the latter should be held liable for
damages under Article 32 of the Civil Code considering that the
issuance of RMC 37-93 violated its constitutional right against
deprivation of property without due process of law and the right to
equal protection of the laws.

Petitioner filed a motion to dismiss contending that: (1)

respondent has no cause of action against her because she issued
RMC 37-93 in the performance of her official function and within the
scope of her authority. She claimed that she acted merely as an
agent of the Republic and therefore the latter is the one responsible
for her acts; (2) the complaint states no cause of action for lack of
allegation of malice or bad faith; and (3) the certification against
forum shopping was signed by respondents counsel in violation of
the rule that it is the plaintiff or the principal party who should sign
the same.

On September 29, 1997, the RTC denied petitioners motion

 to dismiss holding that to rule on the allegations of petitioner would
be to prematurely decide the merits of the case without allowing the
parties to present evidence. It further held that the defect in the
certification against forum shopping was cured by respondents
submission of the corporate secretarys certificate authorizing its
counsel to execute the certification against forum shopping. x x x x

xxxx

The case was elevated to the Court of Appeals via a petition

for certiorari under Rule 65. However, same was dismissed on the
ground that under Article 32 of the Civil Code, liability may arise
even if the defendant did not act with malice or bad faith. The
appellate court ratiocinated that Section 38, Book I of the
Administrative Code is the general law on the civil liability of public
officers while Article 32 of the Civil Code is the special law that
governs the instant case. Consequently, malice or bad faith need
not be alleged in the complaint for damages. It also sustained the
ruling of the RTC that the defect of the certification against forum
shopping was cured by the submission of the corporate secretarys
certificate giving authority to its counsel to execute the same.5[4]
[Citations and underscoring omitted.]

In the aforesaid June 19, 2007 Decision, we affirmed the disposition of the
Court of Appeals (CA) and directed the trial court to continue with the proceedings
in Civil Case No. 97-341-MK.6[5]

5[4] Id. at 632-634.

6[5] Id. at 643.

 Petitioner, on July 20, 2007, subsequently moved for the reconsideration of
the said decision.7[6] After respondent filed its comment, the Court, in its April 14,
2008 Resolution,8[7] denied with finality petitioners motion for reconsideration.

Undaunted, petitioner filed, on April 29, 2008 her Motion to Refer [the case] to
the Honorable Court En Banc.9[8] She contends that the petition raises a legal
question that is novel and is of paramount importance. The earlier decision
rendered by the Court will send a chilling effect to public officers, and will
adversely affect the performance of duties of superior public officers in
departments or agencies with rule-making and quasi-judicial powers. With the
said decision, the Commissioner of Internal Revenue will have reason to hesitate
or refrain from performing his/her official duties despite the due process
safeguards in Section 228 of the National Internal Revenue Code.10[9] Petitioner
hence moves for the reconsideration of the June 19, 2007 Decision.11[10]

In its June 25, 2008 Resolution,12[11] the Court referred the case to the En
Banc. Respondent consequently moved for the reconsideration of this resolution.

We now resolve both motions.

7[6] Id. at 646.

8[7] Id. at 859.

9[8] Id. at 860-882.

10[9] Id. at 860-864.

11[10] Id. at 881.

12[11] Id. at 891.

There are two kinds of duties exercised by public officers: the duty owing to the
public collectively (the body politic), and the duty owing to particular individuals,
thus:

1. Of Duties to the Public. The first of these classes embraces

those officers whose duty is owing primarily to the public collectively --- to
the body politic --- and not to any particular individual; who act for the public
at large, and who are ordinarily paid out of the public treasury.

The officers whose duties fall wholly or partially within this class are
numerous and the distinction will be readily recognized. Thus, the governor
owes a duty to the public to see that the laws are properly executed, that fit
and competent officials are appointed by him, that unworthy and
ill-considered acts of the legislature do not receive his approval, but these,
and many others of a like nature, are duties which he owes to the public at
large and no one individual could single himself out and assert that they
were duties owing to him alone. So, members of the legislature owe a duty
to the public to pass only wise and proper laws, but no one person could
pretend that the duty was owing to himself rather than to another. Highway
commissioners owe a duty that they will be governed only by
considerations of the public good in deciding upon the opening or closing of
highways, but it is not a duty to any particular individual of the community.

These illustrations might be greatly extended, but it is believed that

they are sufficient to define the general doctrine.

2. Of Duties to Individuals. The second class above referred to

includes those who, while they owe to the public the general duty of a
proper administration of their respective offices, yet become, by reason of
their employment by a particular individual to do some act for him in an
official capacity, under a special and particular obligation to him as an
individual. They serve individuals chiefly and usually receive their
compensation from fees paid by each individual who employs them.
 A sheriff or constable in serving civil process for a private suitor, a
recorder of deeds in recording the deed or mortgage of an individual, a
clerk of court in entering up a private judgment, a notary public in protesting
negotiable paper, an inspector of elections in passing upon the
qualifications of an elector, each owes a general duty of official good
conduct to the public, but he is also under a special duty to the particular
individual concerned which gives the latter a peculiar interest in his due
performance.13[12]

In determining whether a public officer is liable for an improper performance or

non-performance of a duty, it must first be determined which of the two classes of
duties is involved. For, indeed, as the eminent Floyd R. Mechem instructs, [t]he
liability of a public officer to an individual or the public is based upon and is
co-extensive with his duty to the individual or the public. If to the one or the other
he owes no duty, to that one he can incur no liability.14[13]

Stated differently, when what is involved is a duty owing to the public in

general, an individual cannot have a cause of action for damages against the
public officer, even though he may have been injured by the action or inaction of
the officer. In such a case, there is damage to the individual but no wrong to him.
In performing or failing to perform a public duty, the officer has touched his
interest to his prejudice; but the officer owes no duty to him as an individual.15[14]
The remedy in this case is not judicial but political.16[15]

13[12] Mechem, A Treatise on the Law of Public Offices and Officers (1890), pp. 386-387.

14[13] Id. at 390.

15[14] Id. at 390-391.

16[15] Supra note 1.

 The exception to this rule occurs when the complaining individual suffers a
particular or special injury on account of the public officers improper performance
or non-performance of his public duty. An individual can never be suffered to sue
for an injury which, technically, is one to the public only; he must show a wrong
which he specially suffers, and damage alone does not constitute a wrong.17[16]
A contrary precept (that an individual, in the absence of a special and peculiar
injury, can still institute an action against a public officer on account of an improper
performance or non-performance of a duty owing to the public generally) will lead
to a deluge of suits, for if one man might have an action, all men might have the
likethe complaining individual has no better right than anybody else.18[17] If such
were the case, no one will serve a public office. Thus, the rule restated is that an
individual cannot have a particular action against a public officer without a
particular injury, or a particular right, which are the grounds upon which all actions
are founded.19[18]

17[16] Supra note 12, at 390-391.

18[17] Butler v. Kent, 19 Johns. 223, 10 Am. Dec. 219 (1821).

19[18] Id.
Juxtaposed with Article 3220[19] of the Civil Code, the principle may now translate

20[19] Article 32. Any public officer or employee, or any private individual, who directly
or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the
following rights and liberties of another person shall be liable to the latter for damages:

(1) Freedom of religion;

(2) Freedom of speech;

(3) Freedom to write for the press or to maintain a periodical publication;

(4) Freedom from arbitrary or illegal detention;

(5) Freedom of suffrage;

(6) The right against deprivation of property without due process of law;

(7) The right to a just compensation when private property is taken for public
use;

(8) The right to the equal protection of the laws;

(9) The right to be secure in ones person, house, papers, and effects against
unreasonable searches and seizures;

(10) The liberty of abode and of changing the same;

(11) The privacy of communication and correspondence;

(12) The right to become a member of associations or societies for purposes not
contrary to law;

(13) The right to take part in a peaceable assembly to petition the Government
for redress of grievances;

(14) The right to be free from involuntary servitude in any form;

(15) The right of the accused against excessive bail;

(16) The right of the accused to be heard by himself and counsel, to be informed
of the nature and cause of the accusation against him, to have a speedy and
public trial, to meet witnesses face to face, and to have compulsory process to
secure the attendance of witnesses in his behalf;

(17) Freedom from being compelled to be a witness against ones self, or from
being forced to confess guilt, or from being induced by a promise of immunity
or reward to make such confession, except when the person confessing
becomes a State witness;
into the rule that an individual can hold a public officer personally liable for
damages on account of an act or omission that violates a constitutional right only
if it results in a particular wrong or injury to the former. This is consistent with this
Courts pronouncement in its June 19, 2007 Decision (subject of petitioners motion
for reconsideration) that Article 32, in fact, allows a damage suit for tort for
impairment of rights and liberties.21[20]

(18) Freedom from excessive fines, or cruel and unusual punishment, unless the
same is imposed or inflicted in accordance with a statute which has not been
judicially declared unconstitutional; and

(19) Freedom of access to the courts.

In any of the cases referred to in this article, whether or not the defendants act or omission
constitutes a criminal offense, the aggrieved party has a right to commence an entirely
separate and distinct civil action for damages, and for other relief. Such civil action shall
proceed independently of any criminal prosecution (if the latter be instituted) and may be
proved by preponderance of evidence.

The indemnity shall include moral damages. Exemplary damages may also be adjudicated.

The responsibility herein set forth is not demandable from a judge unless his act or
omission constitutes a violation of the Penal Code or other penal statute.

21[20] Vinzons-Chato v. Fortune Tobacco Corporation, supra note 3.

 It may be recalled that in tort law, for a plaintiff to maintain an action for
damages for the injuries of which he complains, he must establish that such
injuries resulted from a breach of duty which the defendant owed the plaintiff,
meaning a concurrence of injury to the plaintiff and legal responsibility by the
person causing it. Indeed, central to an award of tort damages is the premise that
an individual was injured in contemplation of law.22[21] Thus, in Lim v. Ponce de
Leon,23[22] we granted the petitioners claim for damages because he, in fact,
suffered the loss of his motor launch due to the illegal seizure thereof. In
Cojuangco, Jr. v. Court of Appeals,24[23] we upheld the right of petitioner to the
recovery of damages as there was an injury sustained by him on account of the
illegal withholding of his horserace prize winnings.

In the instant case, what is involved is a public officers duty owing to the public
in general. The petitioner, as the then Commissioner of the Bureau of Internal
Revenue, is being taken to task for Revenue Memorandum Circular (RMC) No.
37-93 which she issued without the requisite notice, hearing and publication, and
which, in Commissioner of Internal Revenue v. Court of Appeals,25[24] we
declared as having fallen short of a valid and effective administrative
issuance.27[25] A public officer, such as the petitioner, vested with
quasi-legislative or rule-making power, owes a duty to the public to promulgate
rules which are compliant with the requirements of valid administrative regulations.

22[21] Sps. Custodio v. Court of Appeals, 323 Phil. 575 (1996), cited in Laynesa v. Uy,
G.R. No. 149553, February 29, 2008, 547 SCRA 200.

23[22] No. L-22554, August 29, 1975, 66 SCRA 299.

24[23] G.R. No. 119398, July 2, 1999, 309 SCRA 602, 621.

25[24] G.R. No. 119761, August 29, 1996, 261 SCRA 236.

27[25] Id. at 252.

But it is a duty owed not to the respondent alone, but to the entire body politic who
would be affected, directly or indirectly, by the administrative rule.
Furthermore, as discussed above, to have a cause of action for damages against
the petitioner, respondent must allege that it suffered a particular or special injury
on account of the non-performance by petitioner of the public duty. A careful
reading of the complaint filed with the trial court reveals that no particular injury is
alleged to have been sustained by the respondent. The phrase financial and
business difficulties28[26] mentioned in the complaint is a vague notion,
ambiguous in concept, and cannot translate into a particular injury. In contrast, the
facts of the case eloquently demonstrate that the petitioner took nothing from the
respondent, as the latter did not pay a single centavo on the tax assessment
levied by the former by virtue of RMC 37-93.

With no particular injury alleged in the complaint, there is, therefore, no delict
or wrongful act or omission attributable to the petitioner that would violate the
primary rights of the respondent. Without such delict or tortious act or omission,
the complaint then fails to state a cause of action, because a cause of action is the
act or omission by which a party violates a right of another.29[27]

A cause of action exists if the following elements are present: (1) a right in
favor of the plaintiff by whatever means and under whatever law it arises or is
created; (2) an obligation on the part of the named defendant to respect or not to
violate such right; and (3) an act or omission on the part of such defendant
violative of the right of the plaintiff or constituting a breach of the obligation of

28[26] Rollo, p. 686.

29[27] Drilon v. Court of Appeals, G.R. No. 106922, April 20, 2001.
defendant to plaintiff for which the latter may maintain an action for recovery of
damages.30[28]

30[28] Id.
The remedy of a party whenever the complaint does not allege a cause of action
is to set up this defense in a motion to dismiss, or in the answer. A motion to
dismiss based on the failure to state a cause of action in the complaint
hypothetically admits the truth of the facts alleged therein. However, the
hypothetical admission is limited to the relevant and material facts well-pleaded in
the complaint and inferences deducible therefrom. The admission does not
extend to conclusions or interpretations of law; nor does it cover allegations of fact
the falsity of which is subject to judicial notice.31[29]

The complaint may also be dismissed for lack of cause of action if it is

obvious from the complaint and its annexes that the plaintiff is not entitled to any
relief.32[30]

The June 19, 2007 Decision and the dissent herein reiterates that under
Article 32 of the Civil Code, the liability of the public officer may accrue even if
he/she acted in good faith, as long as there is a violation of constitutional rights,
citing Cojuangco, Jr. v. Court of Appeals,33[31] where we said:

Under the aforecited article, it is not necessary that the public officer
acted with malice or bad faith. To be liable, it is enough that there was a
violation of the constitutional rights of petitioners, even on the pretext of
justifiable motives or good faith in the performance of duties.34[32]

31[29] Id.

32[30] Fluor Daniel, Inc. Philippines v. EB. Villarosa & Partners Co., Ltd., G.R. No.
159648, July 27, 2007.

33[31] G.R. No. 119398, July 2, 1999, 309 SCRA 602.

34[32] Id. at 620-621.

 The complaint in this case does not impute bad faith on the petitioner.
Without any allegation of bad faith, the cause of action in the respondents
complaint (specifically, paragraph 2.02 thereof) for damages under Article 32 of
the Civil Code would be premised on the findings of this Court in Commissioner of
Internal Revenue v. Court of Appeals (CIR v. CA),35[33] where we ruled that RMC
No. 37-93, issued by petitioner in her capacity as Commissioner of Internal
Revenue, had fallen short of a valid and effective administrative issuance. This is
a logical inference. Without the decision in CIR v. CA, the bare allegations in the
complaint that respondents rights to due process of law and to equal protection of
the laws were violated by the petitioners administrative issuance would be
conclusions of law, hence not hypothetically admitted by petitioner in her motion
to dismiss.

But in CIR v. CA, this Court did not declare RMC 37-93 unconstitutional;
certainly not from either the due process of law or equal protection of the laws
perspective. On due process, the majority, after determining that RMC 37-93 was
a legislative rule, cited an earlier Revenue Memorandum Circular (RMC No. 10-86)
requiring prior notice before RMCs could become operative. However, this Court
did not make an express finding of violation of the right to due process of law. On
the aspect of equal protection, CIR v. CA said: Not insignificantly, RMC 37-93
might have likewise infringed on uniformity of taxation; a statement that does not
amount to a positive indictment of petitioner for violation of respondents
constitutional right. Even if one were to ascribe a constitutional infringement by
RMC 37-93 on the non-uniformity of tax provisions, the nature of the constitutional

35[33] G. R. No. 119761, August 29, 1996.

transgression falls under Section 28, Article VInot Section 1, Article IIIof the
Constitution.

This Courts own summation in CIR v. CA: All taken, the Court is convinced
that the hastily promulgated RMC 37-93 has fallen short of a valid and effective
administrative issuance, does not lend itself to an interpretation that the RMC is
unconstitutional. Thus, the complaints reliance on CIR v. CAwhich is cited in, and
a copy of which is annexed to, the complaintas suggestive of a violation of due
process and equal protection, must fail.

Accordingly, from the foregoing discussion, it is obvious that paragraph

2.02 of respondents complaint loses the needed crutch to sustain a valid cause of
action against the petitioner, for what is left of the paragraph is merely the
allegation that only respondents Champion, Hope and More cigarettes were
reclassified.

If we divest the complaint of its reliance on CIR v. CA, what remains of

respondents cause of action for violation of constitutional rights would be
paragraph 2.01, which reads:

2.01. On or about July 1, 1993, defendant issued Revenue

Memorandum Circular No. 37-93 (hereinafter referred to as RMC No.
37-93) reclassifying specifically Champion, Hope and More as locally
manufactured cigarettes bearing a foreign brand. A copy of the aforesaid
circular is attached hereto and made an integral part hereof as ANNEX A.
The issuance of a circular and its implementation resulted in the
deprivation of property of plaintiff. They were done without due process of
 law and in violation of the right of plaintiff to the equal protection of the laws.
(Italics supplied.)

But, as intimated above, the bare allegations, done without due process of law
and in violation of the right of plaintiff to the equal protection of the laws are
conclusions of law. They are not hypothetically admitted in petitioners motion to
dismiss and, for purposes of the motion to dismiss, are not deemed as facts.

In Fluor Daniel, Inc. Philippines v. EB. Villarosa & Partners Co., Ltd.,36[34]
this Court declared that the test of sufficiency of facts alleged in the complaint as
constituting a cause of action is whether or not, admitting the facts alleged, the
court could render a valid verdict in accordance with the prayer of the complaint.
In the instant case, since what remains of the complaint which is hypothetically
admitted, is only the allegation on the reclassification of respondents cigarettes,
there will not be enough facts for the court to render a valid judgment according to
the prayer in the complaint.

Furthermore, in an action for damages under Article 32 of the Civil Code

premised on violation of due process, it may be necessary to harmonize the Civil
Code provision with subsequent legislative enactments, particularly those related
to taxation and tax collection. Judicial notice may be taken of the provisions of the
National Internal Revenue Code, as amended, and of the law creating the Court of
Tax Appeals. Both statutes provide ample remedies to aggrieved taxpayers;
remedies which, in fact, were availed of by the respondentwithout even having to
pay the assessment under protestas recounted by this Court in CIR v. CA, viz.:

36[34] G.R. No. 159648, July 27, 2008.

 In a letter, dated 19 July 1993, addressed to the appellate division of
the BIR, Fortune Tobacco requested for a review, reconsideration and
recall of RMC 37-93. The request was denied on 29 July 1993. The
following day, or on 30 July 1993, the CIR assessed Fortune Tobacco for
ad valorem tax deficiency amounting to P9,598,334.00.

On 03 August 1993, Fortune Tobacco filed a petition for review with

the CTA.37[35]

The availability of the remedies against the assailed administrative action, the
opportunity to avail of the same, and actual recourse to these remedies, contradict
the respondents claim of due process infringement.

At this point, a brief examination of relevant American jurisprudence may be

instructive.

42 U.S. Code 1983, a provision incorporated into the Civil Rights Act of 1871,
presents a parallel to our own Article 32 of the Civil Code, as it states:

Every person who, under color of any statute, ordinance, regulation,

custom, usage, or any State or Territory, subjects, or causes to be
subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges or immunities

37[35] Commissioner of Internal Revenue v. Court of Appeals, G.R. No. 119761, August 29,
1996, 261 SCRA 236, 244.
 secured by the Constitution and laws, shall be liable to the party injured in
an action at law, suit in equity or other proper proceeding for redress.

This provision has been employed as the basis of tort suits by many petitioners
intending to win liability cases against government officials when they violate the
constitutional rights of citizens.

Webster Bivens v. Six Unknown Named Agents of Federal Bureau of

Investigation,38[36] has emerged as the leading case on the victims entitlement to
recover money damages for any injuries suffered as a result of flagrant and
unconstitutional abuses of administrative power. In this case, federal narcotics
officers broke into Bivens home at 6:30 a.m. without a search warrant and in the
absence of probable cause. The agents handcuffed Bivens, searched his
premises, employed excessive force, threatened to arrest his family, subjected
him to a visual strip search in the federal court house, fingerprinted, photographed,
interrogated and booked him. When Bivens was brought before a United States
Commissioner, however, charges against him were dismissed. On the issue of
whether violation of the Fourth Amendment by a federal agent acting under color
of authority gives rise to a cause of action for damages consequent upon his
constitutional conduct, the U.S. Supreme Court held that Bivens is entitled to
recover damages for injuries he suffered as a result of the agents violation of the
Fourth Amendment.

38[36] 403 U.S. 388 (1971), 91 S. Ct. 1999, 29 L. Ed. 2d. 619
 A number of subsequent decisions have upheld Bivens. For instance, in
Scheuer v. Rhodes,39[37] a liability suit for money damages was allowed against
Ohio Governor James Rhodes by petitioners who represented three students who
had been killed by Ohio National Guard troops at Kent State University as they
protested against U.S. involvement in Vietnam. In Wood v. Strickland,40[38] local
school board members were sued by high school students who argued that they
had been deprived of constitutional due process rights when they were expelled
from school for having spiked a punch bowl at a school function without the
benefit of a full hearing. In Butz v. Economou,41[39] Economou, whose
registration privilege as a commodities futures trader was suspended, without
prior warning, by Secretary of Agriculture Earl Butz, sued on a Bivens action,
alleging that the suspension was aimed at chilling his freedom of expression right
under the First Amendment. A number of other cases42[40] with virtually the
same conclusion followed.

However, it is extremely dubious whether a Bivens action against government

tax officials and employees may prosper, if we consider the pronouncement of the
U.S. Supreme Court in Schweiker v. Chilicky,43[41] that a Bivens remedy will not
be allowed when other meaningful safeguards or remedies for the rights of
persons situated as (is the plaintiff) are available. It has also been held that a

39[37] 416 U.S. 232 (1974).

40[38] 420 U.S. 308 (1975).

41[39] 434 U.S. 994 (1978).

42[40] E.g., Carlson v. Green, 446 U.S. 14 (1980); Martinez v. State of California, 444 U.S.
277 (1980).

43[41] 487 U.S. 412 (1988).

Bivens action is not appropriate in the civil service system44[42] or in the military
justice system.45[43]

In Frank Vennes v. An Unknown Number of Unidentified Agents of the

United States of America,46[44] petitioner Vennes instituted a Bivens action
against agents of the Internal Revenue Service (IRS) who alleged that he (Vennes)
owed $250,000 in tax liability, instituted a jeopardy assessment, confiscated
Vennes business, forced a total asset sale, and put Vennes out of business, when
in fact he owed not a dime. The U.S. Court of Appeals, Eighth Circuit, ruled:

The district court dismissed these claims on the ground that a

taxpayers remedies under the Internal Revenue Code preclude such a
Bivens action. Vennes cites to us no contrary authority, and we have found
none. Though the Supreme Court has not addressed this precise question,
it has strongly suggested that the district court correctly applied Bivens:

When the design of a Government program suggests

that Congress has provided what it considers
adequate remedial mechanisms for constitutional
violations that may occur in the course of its
administration, we have not created additional Bivens
remedies.

xxxx

44[42] Bush v. Lucas, 462 U.S. 367 (1983).

45[43] Chappell v. Wallace, 462 U.S. 296 (1983).

46[44] 26 F. 3d 1448 (1994), 74 A.F.T.R. 2d 94-5144.

 Congress has provided specific and meaningful remedies for
taxpayers who challenge overzealous tax assessment and collection
activities. A taxpayer may challenge a jeopardy assessment both
administratively and judicially, and may sue the government for a tax
refund, and have authorized taxpayer actions against the United States to
recover limited damages resulting from specific types of misconduct by IRS
employees. These carefully crafted legislative remedies confirm that, in the
politically sensitive realm of taxation, Congresss refusal to permit
unrestricted damage action by taxpayers has not been inadvertent. Thus,
the district court correctly dismissed Venness Bivens claims against IRS
agents for their tax assessment and collection activities.

In still another Bivens action, instituted by a taxpayer against IRS employees for
alleged violation of due process rights concerning a tax dispute, the U.S. District
Court of Minnesota said:

In addition, the (Tax) Code provides taxpayers with remedies, judicial and
otherwise, for correcting and redressing wrongful acts taken by IRS
employees in connection with any collection activities. Although these
provisions do not provide taxpayers with an all-encompassing remedy for
wrongful acts of IRS personnel, the rights established under the Code
illustrate that it provides all sorts of rights against the overzealous
officialdom, including, most fundamentally, the right to sue the government
for a refund if forced to overpay taxes, and it would make the collection of
taxes chaotic if a taxpayer could bypass the remedies provided by
Congress simply by bringing a damage suit against IRS employees.47[45]

American jurisprudence obviously validates the contention of the petitioner.

47[45] Tonn v. United States of America, 847 F. Supp. 711, 73 A.F.T.R. 2d 94-727
Finally, we invite attention to Section 227, Republic Act No. 8424 (Tax Reform Act
of 1997), which provides:

Section 227. Satisfaction of Judgment Recovered Against any

Internal Revenue Officer. When an action is brought against any Internal
Revenue officer to recover damages by reason of any act done in the
performance of official duty, and the Commissioner is notified of such
action in time to make defense against the same, through the Solicitor
General, any judgment, damages or costs recovered in such action shall
be satisfied by the Commissioner, upon approval of the Secretary of
Finance, or if the same be paid by the person sued shall be repaid or
reimbursed to him.

No such judgment, damages or costs shall be paid or reimbursed in behalf

of a person who has acted negligently or in bad faith, or with willful
oppression.

Because the respondents complaint does not impute negligence or bad faith to
the petitioner, any money judgment by the trial court against her will have to be
assumed by the Republic of the Philippines. As such, the complaint is in the
nature of a suit against the State.48[46]

WHEREFORE, premises considered, we GRANT petitioners motion for

reconsideration of the June 19, 2007 Decision and DENY respondents motion for
reconsideration of the June 25, 2008 Resolution. Civil Case No. CV-97-341-MK,
pending with the Regional Trial Court of Marikina City, is DISMISSED.

48[46] See Veterans Manpower and Protective Services, Inc. v. Court of Appeals, 214
SCRA 286.
 SO ORDERED.

ANTONIO EDUARDO B. NACHURA

Associate Justice

WE CONCUR:

REYNATO S. PUNO

Chief Justice

CONSUELO YNARES-SANTIAGO
LEONARDO A. QUISUMBING
Associate Justice Associate Justice
 ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice Associate Justice

(On Leave)

RENATO C. CORONA CONCHITA CARPIO MORALES

Associate Justice
Associate Justice

ADOLFO S. AZCUNA DANTE O. TINGA

Associate Justice Associate Justice

MINITA V. CHICO-NAZARIO PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

 RUBEN T. REYES TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

ARTURO D. BRION

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above resolution had been reached in consultation before the
case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO

Chief Justice
 FIRST DIVISION

[G.R. No. 122166. March 11, 1998]

CRESENTE Y. LLORENTE, JR., petitioner, vs. SANDIGANBAYAN and

LETICIA G. FUERTES, respondents.

DECISION
PANGANIBAN, J.:

In a prosecution for violation of Section 3[e] of the Anti-Graft Law, that is,
causing undue injury to any party, the government prosecutors must prove actual
injury to the offended party; speculative or incidental injury is not sufficient.

The Case
 Before us is a petition for review of the Decision promulgated on June 23,
1995 and the Resolution promulgated on October 12, 1995 of the Sandiganbayan
in Criminal Case No. 18343, finding Cresente Y. Llorente, Jr. guilty as charged.
Llorente, then municipal mayor of Sindangan, Zamboanga del Norte, was
charged with violation of Sec. 3[e] of Republic Act No. 3019, otherwise known as
the Anti-Graft and Corrupt Practices Act, under an Information dated October 22,
1992, textually reproduced as follows:i[1]
That in or about and during the period of July, 1990 to October, 1991,
or for sometime subsequent thereto, in the Municipality of Sindangan,
Province of Zamboanga del Norte, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused Cresente Y. Llorente,
Jr., a public officer, being then the Mayor of Sindangan, Zamboanga del
Norte, in the exercise of his official and administrative functions, did then
and there, wilfully, unlawfully and criminally with evident bad faith refuse to
sign and approve the payrolls and vouchers representing the payments of
the salaries and other emoluments of Leticia G. Fuertes, without just valid
cause and without due process of law, thereby causing undue injury to the
said Leticia G. Fuertes.
CONTRARY TO LAW.
Duly arraigned on March 29, 1993, petitioner, with the assistance of counsel,
entered a plea of NOT GUILTY.ii[2] After trial in due course, the Sandiganbayaniii[3]
rendered the assailed Decision, disposing as follows:iv[4]
WHEREFORE, judgment is hereby rendered finding accused Mayor
Cresente Y. Llorente, Jr. GUILTY beyond reasonable doubt as principal of
the crime of Violation of Section 3(e) of Republic Act 3019, as amended,
and he is hereby sentenced to suffer imprisonment of SIX (6) YEARS and
ONE (1) MONTH, as minimum to SEVEN (7) YEARS, as maximum; to
further suffer perpetual disqualification from public office; and to pay the
costs.
Respondent Court denied the subsequent motion for reconsideration in the
assailed Resolution, thus:v[5]
WHEREFORE, accuseds Motion for Reconsideration and/or New Trial
is hereby DENIED for lack of merit. His Motion for Marking of Additional
Exhibits Cum Offer of Documentary Exhibits in Support of Motion for
Reconsideration and/or New Trial is now rendered moot and academic.
Hence, this petition.vi[6]

The Facts
Version of the Prosecution
 As found by Respondent Court, the prosecutions version of the facts of this
case is as follows:vii[7]
After appreciating all the evidence on both sides, the following
uncontroverted facts may be gleaned:
1. Accused Mayor Cresente Y. Llorente, Jr., at the time the alleged
act was committed, was the Municipal Mayor of Sindangan, Zamboanga
del Norte.
2. Private [C]omplainant, Leticia C. Fuertes, is the duly appointed
Assistant Municipal Treasurer in the same municipality since October 18,
1985.
3. Starting 1986, private complainant was detailed to different offices,
as follows:
(a) Municipality of Katipunan, Zamboanga del Norte from
April, 1986 to August, 1987 as OIC Municipal Treasurer.
(b) Municipality of Roxas, Zamboanga del Norte from
September, 1987 to March, 1988 as OIC Municipal Treasurer.
(c) Office of the Provincial Treasurer of Zamboanga del
Norte from April, 1988 to May, 1988.
(d) Municipality of Pian, Zamboanga del Norte from June,
1988 to June, 1990 as OIC Municipal Treasurer.
4. In July, 1990, she was returned to her post as Assistant Municipal
Treasurer in the town of Sindangan.
She was not provided with office table and chair nor given any
assignment; neither her daily time record and application for leave acted
upon by the municipal treasurer per instruction of accused Mayor (Exh.
G-2; G-3).
5. On July 23, 1990, the Sangguniang Bayan of Sindangan,
Zamboanga del Norte, presided by accused Mayor, passed Resolution No.
SB 214 (Exh. 3), vehemently objecting to the assignment of complainant
as Assistant Municipal Treasurer of Sindangan.
6. On March 12, 1991, accused Municipal Mayor received a letter
(SB Resolution No. 36) from the Sangguniang Bayan of the Municipality of
Pian, demanding from the private complainant return of the amount
overpaid to her as salaries (par. 9, p. 2 of Exh. 4 counter-affidavit of
accused Mayor).
7. On May 22, 1991, private complainant filed a Petition for
Mandamus with Damages (Exh. E) against the accused Mayor and the
Municipality of Sindangan before Branch II, Regional Trial Court of
Sindangan, Zamboanga del Norte docketed as Special Proceedings No.
45, for the alleged unjustified refusal of Mayor Llorente to sign and/or
approve her payrolls and/or vouchers representing her salaries and other
emoluments as follows: (a) salary for the month of June, 1990 in the
amount of P5,452.00 under disbursement voucher dated September 5,
1990 (Exh. H). Although complainant rendered services at the municipality
of Pian during this period, she could not collect her salary there
considering that as of that month, Pian had already appointed an Assistant
Municipal Treasurer. When she referred the matter to the Provincial
Auditor, she was advised to claim her salary for that month with her
mother agency, the Municipality of Sindangan, [(]p. 12, TSN of August 9,
1994; 10th paragraph of complainants Supplemental Affidavit marked Exh.
G); (b) salary differential for the period from July 1, 1989 to April 30, 1990
in the total amount of P19,480.00 under disbursement voucher dated
August, 1990 (Exh. I); (c) 13th month pay, cash gift and clothing allowance
under Supplemental Budget No. 5, CY 1990 in the total amount of P7,275
per disbursement voucher dated December 4, 1990 (Exh. J); (d) vacation
leave commutation for the period from October to December 31, 1990 in
the total amount of P16,356.00 per disbursement voucher dated
December 3, 1990 (Exh. K); (e) RATA for the months of July, August and
September, 1990, January and February, 1991 in the total amount of
P5,900.00 (par. 12 & 16 of Exh. E); and (f) salaries for January and
February, 1991 in the total amount of P10,904.00 (par. 17 of Exh. E).
8. Accused Mayor did not file an answer; instead, he negotiated for
an amicable settlement of the case (p. 24, TSN of August 10, 1994).
Indeed, a Compromise Agreement (Exh. A) dated August 27, 1991,
between the accused and private complainant was submitted to and
approved by the court, hereto quoted as follows:
COMPROMISE AGREEMENT
That the parties have agreed, as they hereby agree, to settle this
case amicably on the basis of the following terms and conditions, to wit:
(a) That the respondent Mayor Cresente Y. Llorente, Jr.
binds himself to sign and/or approve all vouchers and/or payrolls
for unpaid salaries, RATA, Cash-gifts, 13th month pay, clothing
allowance, salary differentials and other emoluments which the
petitioner is entitled is Assistant Municipal Treasurer of
Sindangan, Zamboanga del Norte;
(b) That the parties herein hereby waive, renounce and
relinquish their other claims and counter-claims against each
other;
(c) That the respondent Mayor Cresente Y. Llorente Jr. binds
himself to sign and/or approve all subsequent vouchers and
payrolls of the herein petitioner.
 9. On August 27, 1991, a Decision (Exh. B) was rendered by Judge
Wilfredo Ochotorena on the basis of the aforesaid compromise
agreement.
10. For his failure to comply with the terms of the compromise
agreement, private complainant, thru counsel, filed a Motion for Execution
on September 12, 1991. A Writ of Execution (Exh. C) was issued by the
Court on September 17, 1991, and served [on] the accused on September
23, 1991.
11. As shown in the Sheriffs Return dated November 19, 1991 (Exh.
D), private complainant was paid her salaries for the period from January,
1991 to August, 1991, while the rest of her salaries including the RATA
and other emoluments were not paid considering the alleged need of a
supplemental budget to be enacted by the Sangguniang Bayan of
Sindangan per verbal allegation of the municipal treasurer.
12. Complainant was not also paid her salaries from July to December
1990; September and October, 1991; RATA for the period from July 1990
to June 1994 (admission of accused, pp. 8-9, TSN of June 27, 1994, a.m.;
Exh. E; p. 17, TSN of June 27, 1994).
13. Sometime in 1993, accused municipal mayor received from the
Municipality of Pian, Bill No. 93-08 (Exh. 1), demanding from the
Municipality of Sindangan settlement of overpayment to complainant
Fuertes in the amount of P50,643.93 per SB Resolution No. 6 sent on July
23, 1990. The bill was settled by the Municipality of Sindangan in
December, 1993 per Disbursement Voucher No. 101-9312487 dated
December 2, 1993 (Exh. 2).
14. Private complainant was able to receive complete payment of her
claims only on January 4, 1993 in the form of checks all dated December
29, 1992 (as appearing on Exhs. H, I, J, K of the prosecution, Exhs. 6, 7, 8,
of the defense) except her RATA which was given to her only on July 25,
1994, covering the period from July 1990 to December, 1993 amounting to
P55,104.00, as evidenced by Disbursement Voucher dated July 25, 1994
(Exh. 5).

Version of the Defense

While admitting some delays in the payment of the complainants claims,

petitioner sought to prove the defense of good faith -- that the withholding of
payment was due to her failure to submit the required money and property
clearance, and to the Sangguniang Bayans delayed enactment of a supplemental
budget to cover the claims. He adds that such delays did not result in undue injury
to complainant. In his memorandum, petitioner restates the facts as follows:viii[8]
 1. Complainant xxx was appointed assistant municipal treasurer of
Sindangan, Zamboanga del Norte on October 18, 1985. However, starting
1986 until July 1990, or for a period of about four (4) and one half (1/2)
years, she was detailed in other municipalities and in the Office of the
Provincial Treasurer of Zamboanga del Norte. She returned as assistant
treasurer of Sindangan in July 1990. (Decision, pp. 5-6).
2. As complainant had been working in municipallities and offices
other than in Sindangan for more than four (4) years, her name was
removed from the regular payroll of Sindangan, and payment of past
salaries and other emoluments had to be done by vouchers. When
complainant xxx presented her vouchers to petitioner, the latter required
her to submit clearances from the different offices to which she was
detailed, as well as a certificate of last payment as required by COA
regulations (Tsn, p. 11, Aug. 10, 1994). Instead of submitting the required
documents, Mrs. Fuertes said that what I did, I endorsed my voucher to
the mayor through the municipal treasurer (Tsn, p. 13, June 27, 1994).
The municipal treasurer could not, however, process the vouchers and
certify as to the availability of funds until after the Sangguniang Bayan had
passed a supplemental budget for the purpose (Exhs. D and 6-c Motion),
which came only in December 1992.
3. Petitioner, in the meanwhile, received on March 12, 1991 SB
Resolution No. 36 from the Municipality of Pinan, demanding from Mrs.
xxx Fuertes the reimbursement of P105,915.00, and because of this
demand, he needed time to verify the matter before acting on Mrs. Fuertes
claims (Exh. 4). Mrs. Fuertes admitted that she had at the time problems
of accountability with the Municipality of Pinan. She testified:
Q. Counsel now is asking you, when you went back to Sindangan there was
[sic] still problems of the claims either against you or against the
Municipality of Sindangan by the municipalities had, [sic] in their minds,
overpaid you?
A. Yes, your Honor, that was evidence[d] by the bill of the Municipality of
Pinan to the Municipality of Sindangan. (Tsn, p. 18, Aug. 3, 194).
4. Petitioner also stated that he could not act on complainants claims
because she had not submitted the required money and property
accountability clearance from Pinan (Tsn, 11, Aug. 10, 1994) and that at
the time the Sangguniang Bayan had not appropriated funds for the
purpose. (Tsn, pp. 18, 30, 42-43, Aug. 10, 1994). Nonetheless, petitioner
included Mrs. Fuertes name in the regular annual budget beginning 1991
(Exhs. 4-b, 4-d, 4-f), as a result of which she had been since then
receiving her regular monthly salary.
5. On May 21, 1991, Mrs. Fuertes filed a complaint xxx. Petitioner
filed his answer to the complaint, alleging as a defense, that plaintiff did
not exhaust administrative remedies. (Annex B, p. 3, Petition; Exh.
1-Motion). On August 27, 1991, the parties entered into a compromise
agreement, which the trial court approved (Exh. B). x x x.
6. Upon motion of counsel for Mrs. Fuertes, the trial court issued a writ
of execution of the compromise judgment. However, the writ of execution
was addressed only to petitioner; it was not served on the municipal
Sangguniang Bayan. x x x.
Thus, Mrs. Fuertes had been receiving her regular salary from
January, 1991 because petitioner had included her name in the regular
budget beginning 1991, which fact complainant did not dispute. With
respect to her other claims for past services in other offices, Municipal
Treasurer, Mrs. Narcisa Caber, informed that a supplemental budget for
such purpose to be passed by the Sangguniang Bayan was necessary
before she could be paid thereof. Being the municipal treasurer, Mrs.
Caber knew that without such supplemental budget, payment of Mrs.
Fuertes other claims could not be made because the law requires that
disbursements shall be made in accordance with the ordinance
authorizing the annual or supplemental appropriations (Sec. 346, RA 7160)
and that no money shall be disbursed unless xxx the local treasurer
certifies to the availability of funds for the purpose. (Sec. 344, RA 7160).
7. Petitioner had instructed the municipal budget officer to prepare
the supplemental budget for payment of complainants unpaid claims for
submission to the Sangguniang [Bayan] for enactment. (Tsn, pp. 32-33,
Aug. 10, 1994). The budget officer, Mr. Narciso Siasico stated as follows:
1. I am the budget officer for the Municipality of Sindangan,
Zamboanga del Norte, a position I have held since 1981.
xxx xxx xxx
3. Immediately after said mandamus case was settled
through a compromise agreement, Mayor Llorente instructed me
to prepare the necessary budget proposals for the deliberation and
approval of the Sangguniang Bayan;
xxx xxx xxx.
8. Instead of waiting for the Sangguniang Bayan to enact the budget
or of securing an alias writ of execution to compel the Sangguniang Bayan
to pass the same, Mrs. Fuertes filed a criminal complaint with the Office of
the Ombudsman under date of October 28, 1991, admitting receipt of her
salaries from January 1991 and saying she had not been paid her other
claims in violation of the compromise judgment. (Exh. F). She had thus
made the Office of the Ombudsman a collecting agency to compel
payment of the judgment obligation.
9. While the budget proposal had been prepared and submitted to
the Sangguniang Bayan for action, it took time for the Sangguniang Bayan
to pass the supplemental budget and for the Provincial Board to approve
the same. It was only on December 27, 1992 that the municipal treasurer
and the municipal accountant issued a certification of availability of funds
for the purpose. Petitioner approved the vouchers immediately, and in a
period of one week, Mrs. Fuertes was paid all claims, as evidenced by the
prosecutions Exhs. H, I, J and K, which were the four vouchers of Mrs.
Fuertes, xxxx.
xxx xxx xxx
11. Petitioner testified that he could not immediately sign or approve
the vouchers of Mrs. Fuertes for the following reasons:
a) The Sangguniang Bayan had not appropriated the
amounts to pay Mrs. Fuertes. (Tsn, pp. 18, 30, 42-43, Aug. 10,
1994).
b) Municipal Treasurer Caber, to whom Mrs. Fuertes
endorsed her vouchers for processing, and the Municipal
Accountant issued the certificate of availability of funds only on
December 27, 1992 (Tsn, p. 42, Aug. 10, 1994; Exhs. H, I, J and
K); and the delay in the issuance of the certificate of availability of
funds was due to the delay by the Provincial Board to approve the
supplemental budget. (Tsn, p. 43, Aug. 10, 1994).
[c]) He received on March 12, 1991 a demand from the
Municipality of Pinan, Zamboanga del Norte, where Mrs. Fuertes
last worked, for the reimbursement of P105,915.00, and the matter
had to be clarified first. (Exh. 4). Mrs. Fuertes admitted that she
had some problem of accountability with the Municipality of Pinan.
(Tsn, p. 18, 1994). It took time before this matter could be clarified
by the Municipality of Pinan reducing its claim to P50,647.093 and
the Municipality of Sindangan paying said claim. (Exh. 2; Decision,
p. 9).
[d]) Mrs. Fuertes had not submitted the required clearance from
the Municipality of Pinan. (Tsn, p. 11, Aug. 10, 1994). He did not
insist on this requirement after the trial court issued the writ of
execution to implement the compromise judgment. (Tsn, p. 23,
Aug. 10, 1994). Nonetheless, in the post audit of Mrs. Fuertes
accountability, the Commission on Audit issued a notice of
suspension of the amount of P5,452.00 from Mrs. Fuertes for her
failure to submit: 1. Clearance for money & property accountability
from former office. 2. Certification as [sic] last day of service in
former office. 3. Certification of last salary received & issued by the
disbursing officer in former office, certified by chief accountant and
verified by resident auditor. (Exh. 2-Motion).
12. The Information dated October 12, 1992 filed against petitioner
alleged that petitioner as mayor did not sign and approve the vouchers of
Mrs. Fuertes for payment of her salaries and other emoluments from July
 1, 1990 to October 1991, which caused her undue injury. However, the
prosecutions Exh. D, the sheriffs return dated November 19, 1991, stated
that Mrs. Fuertes had received her salary from January 1, 1991 up to the
present, which meant that even before the information was filed, she had
been paid her regular salaries from January 1, 1991 to October 1991. The
supplemental budget to cover payment of her other claims for past
services was passed only in December 1992 and the municipal treasurer
and accountant issued the certificate of availability of funds only on
December 27, 1992, and Mrs. Fuertes got paid of [sic] all her other claims,
including those not claimed in the Information, within one week therefrom.
(Exhs. H, I, J, and K).
xxx xxx xxx.

Ruling of the Sandiganbayan

Respondent Court held that the delay or withholding of complainants salaries

and emoluments was unreasonable and caused complainant undue injury. Being
then the sole breadwinner in their family, the withholding of her salaries caused
her difficulties in meeting her familys financial obligations like paying for the tuition
fees of her four children. Petitioners defense that complainant failed to attach the
required money and property clearance to her vouchers was held to be an
afterthought that was brought about, in the first place, by his own failure to issue
any memorandum requiring its submission. That the voucher form listed the
clearance as one of the requirements for its approval had neither been brought to
complainants attention, nor raised by petitioner as defense in his answer. In any
event, the payment of complainants salary from January to November 1991,
confirmed by the sheriffs return, showed that the clearance was not an
indispensable requirement, because petitioner could have acted upon or
approved the disbursement even without it. The alleged lack of a supplemental
budget was also rejected, because it was petitioners duty as municipal mayor to
prepare and submit the executive and supplemental budgets under Sections 318,
320, and 444 (3)(ii) of the Local Government Code,ix[9] and the complainants
claims as assistant municipal treasurer, a permanent position included in the
plantilla for calendar year 1990 and 1991, were classified as current operating
expenditures for the same calendar years, which were chargeable against the
general funds of the town of Sindangan. Except for the representation and
transportation allowance, Fuertes claims for thirteenth month pay, cash gift and
clothing allowance were already covered by Supplemental Budget No. 5 for
calendar year 1990. Petitioners contention that funds covering complainants
claims were made available only in December 1992 was unbelievable,
considering that an ordinance enacting a supplemental budget takes effect upon
its approval or on the date fixed therein under Sec. 320 of the Local Government
Code.
 The Sandiganbayan also ruled that the petitioners evident bad faith was the
direct and proximate cause of Fuertes undue injury. Complainants salaries and
allowances were withheld for no valid or justifiable reasons. Such delay was
intended to harass complainant, because petitioner wanted to replace her with his
political protege whom he eventually designated as municipal treasurer,
bypassing Fuertes who was next in seniority. Bad faith was further evidenced by
petitioners instructions to the outgoing municipal treasurer not to give the
complaining witness any work assignment, not to provide her with office table and
chair, not to act on her daily time record and application for leave of absence,
instructions which were confirmed in the municipal treasurers certification. (Exh.
G-2).

The Issues

In his memorandum, petitioner submits the following issues:x[10]

1. Could accused be held liable under Sec. 3(e) of R.A. 3019 in the
discharge of his official administrative duties, a positive act, when what
was imputed to him was failing and refusing to sign and/or approve the
vouchers of Mr[s]. Fuertes on time or by inaction on his obligation under
the compromise agreement (ibid., p. 19), a passive act? Did not the act
come under Sec. 3(f) of R.A. 3019, of [sic] which accused was not charged
with?
2. Assuming, arguendo, that his failure and refusal to immediately
sign and approve the vouchers of Mrs. Fuertes comes [sic] under Sec.
3(e), the questions are:
(a) Did not the duty to sign and approve the same arise only after the
Sangguniang Bayan had passed an appropriations ordinance, and not
before? In other words, was the non-passage of the appropriation
ordinance a justifiable reason for not signing the vouchers?
(b) Did Mrs. Fuertes suffer undue injury, as the term is understood in
Sec. 3(e), she having been paid all her claims?
(c) Did petitioner not act in good faith in refusing to immediately sign
the vouchers and implement the compromise agreement until the
Sangguniang Bayan had enacted the appropriation ordinance and until
Mrs. Fuertes submitted the clearance from the Municipality of Pinan,
Zamboanga del Norte?
Restated, petitioner claims that the prosecution failed to establish the
elements of undue injury and bad faith. Additionally, petitioner submits that a
violation of Section 3[e] of RA 3019 cannot be committed through nonfeasance.

The Courts Ruling

 The petition is meritorious. After careful review of the evidence on record and
thorough deliberation on the applicable provision of the Anti-Graft Law, the Court
agrees with the solicitor generals assessment that the prosecution failed to
establish the elements of the crime charged.

First Issue: Undue Injury

Petitioner was charged with violation of Section 3[e] of R.A. 3019, which
states:
SEC. 3. Corrupt practices of public officers.In addition to acts or
omissions of public officers already penalized by existing law, the following
shall constitute corrupt practices of any public officer and are hereby
declared to be unlawful:
xxx xxx xxx
(e) Causing any undue injury to any party, including the Government,
or giving any private party any unwarranted benefits, advantage or
preference in the discharge of his official, administrative or judicial
functions through manifest partiality, evident bad faith or gross
inexcusable negligence. This provision shall apply to officers and
employees of offices or government corporations charged with the grant of
licenses or permits or other concessions.
To hold a person liable under this section, the concurrence of the following
elements must be established beyond reasonable doubt by the prosecution:
(1) that the accused is a public officer or a private person charged in
conspiracy with the former;
(2) that said public officer commits the prohibited acts during the
performance of his or her official duties or in relation to his or her public
positions;
(3) that he or she causes undue injury to any party, whether the
government or a private party; and
(4) that the public officer has acted with manifest partiality, evident
bad faith or gross inexcusable negligence.xi[11]
The solicitor general, in his manifestation,xii[12] points out that undue injury
requires proof of actual injury or damage, citing our ruling in Alejandro vs.
Peoplexiii[13] and Jacinto vs. Sandiganbayan.xiv[14] Inasmuch as complainant was
actually paid all her claims, there was thus no undue injury established.
This point is well-taken. Unlike in actions for torts, undue injury in Sec. 3[e]
cannot be presumed even after a wrong or a violation of a right has been
established. Its existence must be proven as one of the elements of the crime. In
fact, the causing of undue injury, or the giving of any unwarranted benefits,
advantage or preference through manifest partiality, evident bad faith or gross
inexcusable negligence constitutes the very act punished under this section. Thus,
it is required that the undue injury be specified, quantified and proven to the point
of moral certainty.
In jurisprudence, undue injury is consistently interpreted as actual damage.
Undue has been defined as more than necessary, not proper, [or] illegal; and
injury as any wrong or damage done to another, either in his person, rights,
reputation or property[;] [that is, the] invasion of any legally protected interest of
another. Actual damage, in the context of these definitions, is akin to that in civil
law.xv[15]
In turn, actual or compensatory damages is defined by Article 2199 of the Civil
Code as follows:
Art. 2199. Except as provided by law or by stipulation, one is entitled
to an adequate compensation only for such pecuniary loss suffered by him
as he has duly proved. Such compensation is referred to as actual or
compensatory damages.
Fundamental in the law on damages is that one injured by a breach of a
contract, or by a wrongful or negligent act or omission shall have a fair and just
compensation commensurate to the loss sustained as a consequence of the
defendants act. Actual pecuniary compensation is awarded as a general rule,
except where the circumstances warrant the allowance of other kinds of
damages.xvi[16] Actual damages are primarily intended to simply make good or
replace the loss caused by the wrong.xvii[17]
Furthermore, damages must not only be capable of proof, but must be
actually proven with a reasonable degree of certainty. They cannot be based on
flimsy and non-substantial evidence or upon speculation, conjecture or
guesswork.xviii[18] They cannot include speculative damages which are too remote
to be included in an accurate estimate of the loss or injury.
In this case, the complainant testified that her salary and allowance for the
period beginning July 1990 were withheld, and that her family underwent financial
difficulty which resulted from the delay in the satisfaction of her claims.xix[19] As
regards her money claim, payment of her salaries from January 1991 until
November 19, 1991 was evidenced by the Sheriffs Return dated November 19,
1991 (Exh. D). She also admitted having been issued a check on January 4, 1994
to cover her salary from June 1 to June 30, 1990; her salary differential from July
1, 1989 to April 30, 1990; her thirteenth-month pay; her cash gift; and her clothing
allowances. Respondent Court found that all her monetary claims were satisfied.
After she fully received her monetary claims, there is no longer any basis for
compensatory damages or undue injury, there being nothing more to
compensate.
Complainants testimony regarding her familys financial stress was inadequate
and largely speculative. Without giving specific details, she made only vague
references to the fact that her four children were all going to school and that she
was the breadwinner in the family. She, however, did not say that she was unable
to pay their tuition fees and the specific damage brought by such nonpayment.
The fact that the injury to her family was unspecified or unquantified does not
satisfy the element of undue injury, as akin to actual damages. As in civil cases,
actual damages, if not supported by evidence on record, cannot be
considered.xxi[20]
Other than the amount of the withheld salaries and allowances which were
eventually received, the prosecution failed to specify and to prove any other loss
or damage sustained by the complainant. Respondent Court insists that
complainant suffered by reason of the long period of time that her emoluments
were withheld.
This inconvenience, however, is not constitutive of undue injury. In Jacinto,
this Court held that the injury suffered by the complaining witness, whose salary
was eventually released and whose position was restored in the plantilla, was
negligible; undue injury entails damages that are more than necessary or are
excessive, improper or illegal.xxii[21] In Alejandro, the Court held that the hospital
employees were not caused undue injury, as they were in fact paid their
salaries.xxiii[22]

Second Issue: No Evident Bad Faith

In the challenged Decision, Respondent Court found evident bad faith on the
part of the petitioner, holding that, without any valid or justifiable reason, accused
withheld the payment of complainants salaries and other benefits for almost two
(2) years, demonstrating a clear manifestation of bad faith.xxiv[23] It then brushed
aside the petitioners defenses that complainant failed to submit money and
property clearances for her vouchers, and that an appropriation by the
Sangguniang Bayan was required before complainants vouchers could be
approved. It said:xxv[24]
Secondly, his reliance on the failure of complainant to submit the
clearances which were allegedly necessary for the approval of vouchers is
futile in the light of the foregoing circumstances:
xxx xxx xxx
b. The evidence on record shows that complainants salaries for the
period from January to November 1991 (included as subject matter in the
mandamus case) were duly paid, as confirmed in the Sheriffs Return
dated November 19, 1991 (Exh. D). This means that accused, even
without the necessary clearance, could have acted upon or approved
complainants disbursement vouchers if he wanted to.
c. It may be true that a clearance is an indispensable requirement
before complainant will be paid of her claims, but accused could not just
hide behind the cloak of the clearance requirement in order to exculpate
 himself from liability. As the approving officer, it was his duty to direct
complainant to submit the same. Moreover, accused could not just set
aside the obligation he voluntarily imposed upon himself when he entered
into a compromise agreement binding himself to sign complainants
vouchers without any qualification as to the clearance requirement.
Perforce, he could have seen to it that complainant secured the same in
order that he could comply with the said obligation.
xxx xxx xxx
Fourthly, accuseds contention that the delay in the release of
complainants claim could not be attributed to him because the vouchers
were only submitted to him for his signature on December 24-27, 1992;
that the approval of the budget appropriations/resolutions depends on the
Sangguniang Bayan, Budget Officer and the Sangguniang Panlalawigan,
is unavailing.
As revealed in the alleged newly discovered evidence themselves,
particularly x x x SB Res. No. 202 and Appropriation Ordinance No. 035,
both dated May 21, 1990 (Exh. 5-a- Motion), the Sangguniang Bayan
appropriated a budget of P5M in the General Fund for calendar year 1991
[the Budget Officer does not approve the budget but assists the Municipal
Mayor and the Sangguniang Bayan in the preparation of the budget (Sec.
475, Local Government Code of 1991)]. Complainants claims consisted of
her salaries and other benefits for 1990 and 1991 which were classified
as Current Operating Expenditures chargeable against the General Fund.
It is undisputed that she was holding her position as Assistant Municipal
Treasurer in a permanent capacity (her position was also designated
Assistant Department Head), which was included in the plantilla for
calender years 1990 and 1991 (Exhs. 4-a & '4-b', Motion). In Program
Appropriation and Obligation by Object (Exhs. 4-c & 4-c, Motion),
appropriations were made for current operating expenditures to which
complainants claims properly appertained. xxx. Verily, complainants
claims were covered by appropriations duly approved by the officials
concerned, signifying that adequate funds were available for the purpose.
In fact, even complainants claims for her 13th month pay, cash gift and
clothing allowance, subject matter of Disbursement Voucher marked
Exhibit J which would need a supplemental budget was covered by
Supplemental Budget No. 5 for CY 1990 duly approved by the authorities
concerned as shown in the voucher itself. This means that the said claim
was already obligated (funds were already reserved for it) as of calendar
year 1990. xxxx. It is clear, then, that as regards availability of funds,
there was no obstacle for the release of all the complainants claims.
The Court disagrees. Respondent Court cannot shift the blame on the
petitioner, when it was the complainant who failed to submit the required
clearance. This requirement, which the complainant disregarded, was even
printed at the back of the very vouchers sought to be approved. As assistant
municipal treasurer, she ought to know that this is a condition for the payment of
her claims. This clearance is required by Article 443 of the Implementing Rules
and Regulations of the Local Government Code of 1991:
Art. 443. Property Clearances When an employee transfers to another
government office, retires, resigns, is dismissed, or is separated from the
service, he shall be required to secure supplies or property clearance from
the supply officer concerned, the provincial or city general services officer
concerned, the municipal mayor and the municipal treasurer, or the
punong barangay and the barangay treasurer, as the case may be. The
local chief executive shall prescribe the property clearance form for this
purpose.
For her own failure to submit the required clearance, complainant is not
entirely blameless for the delay in the approval of her claims.
Also, given the lack of corresponding appropriation ordinance and certification
of availability of funds for such purpose, petitioner had the duty not to sign the
vouchers. As chief executive of the municipality Llorente could not have approved
the voucher for the payment of complainants salaries under Sec. 344, Local
Government Code of 1991.xxvi[25] Also, Appropriation Ordinance No. 020xxvii[26]
adding a supplemental budget for calendar year 1990 was approved on April 10,
1989, or almost a year before complainant was transferred back to Sindangan.
Hence, she could not have been included therein. SB Resolution No. 202 and
Appropriation Ordinance No. 035,xxviii[27] which fixed the municipal budget for
calendar year 1991, was passed only on May 21, 1990, or almost another year
after the transfer took effect. The petitioners failure to approve the complainants
vouchers was therefore due to some legal obstacles,xxix[28] and not entirely without
reason. Thus, evident bad faith cannot be completely imputed to him.
Bad faith does not simply connote bad judgment or negligence; it imputes a
dishonest purpose or some moral obliquity and conscious doing of a wrong; a
breach of sworn duty through some motive or intent or ill will; it partakes of the
nature of fraud. (Spiegel v. Beacon Participations, 8 NE 2nd Series, 895, 1007). It
contemplates a state of mind affirmatively operating with furtive design or some
motive of self interest or ill will for ulterior purposes (Air France v. Carrascoso, 18
SCRA 155, 166-167). Evident bad faith connotes a manifest deliberate intent on
the part of the accused to do wrong or cause damage. xxx[29]
In Jacinto, evident bad faith was not appreciated because the actions taken
by the accused were not entirely without rhyme or reason; he refused to release
the complainants salary because the latter failed to submit her daily time record;
he refused to approve her sick-leave application because he found out that she
did not suffer any illness; and he removed her name from the plantilla because
she was moonlighting during office hours. Such actions were measures taken by
a superior against an erring employee who studiously ignored, if not defied, his
authority.xxxi[30]
 In Alejandro, evident bad faith was ruled out, because the accused gave his
approval to the questioned disbursement after relying on the certification of the
bookkeeper on the availability of funds for such disbursement.xxxii[31]

Third Issue: Interpretation of Causing

The Court does not completely agree with petitioners assertion that the
imputed act does not fall under Sec. 3[e] which, according to him, requires a
positive act -- a malfeasance or misfeasance. Causing means to be the cause or
occasion of, to effect as an agent, to bring into existence, to make or to induce, to
compel.xxxiii[32] Causing is, therefore, not limited to positive acts only. Even
passive acts or inaction may cause undue injury. What is essential is that undue
injury, which is quantifiable and demonstrable, results from the questioned official
act or inaction.
In this case, the prosecution accused petitioner of failing or refusing to pay
complainants salaries on time, while Respondent Court convicted him of unduly
delaying the payment of complainants claims. As already explained, both acts did
not, however, legally result in undue injury or in giving any unwarranted benefits,
advantage or preference in the discharge of his official, [or] administrative x x x
functions. Thus, these acts are not punishable under Sec. 3[e].
It would appear that petitioners failure or refusal to act on the complainants
vouchers, or the delay in his acting on them more properly falls under Sec. 3[f]:
(f) Neglecting or refusing, after due demand or request, without
sufficient justification, to act within a reasonable time on any matter
pending before him for the purpose of obtaining, directly or indirectly, from
any person interested in the matter some pecuniary or material benefit or
advantage, or for purpose of favoring his own interest or giving undue
advantage in favor of or discriminating against any other interested party.
Here, the neglect or refusal to act within a reasonable time is the criminal act,
not the causing of undue injury. Thus, its elements are:
1) The offender is a public officer;
2) Said officer has neglected or has refused to act without sufficient
justification after due demand or request has been made on him;
3) Reasonable time has elapsed from such demand or request
without the public officer having acted on the matter pending before him;
and
4) Such failure to so act is for the purpose of obtaining, directly or
indirectly, from any person interested in the matter some pecuniary or
material benefit or advantage in favor of an interested party, or
discriminating against another.xxxiv[33]
However, petitioner is not charged with a violation of Sec. 3[f]. Hence, further
disquisition is not proper. Neither may this Court convict petitioner under Sec. 3[f]
without violating his constitutional right to due process.
WHEREFORE, the petition is hereby GRANTED. Petitioner is ACQUITTED of
violating Section 3[e] of R.A. 3019, as amended. No costs.
SO ORDERED.
Davide, Jr. (Chairman), Bellosillo, Vitug and Quisumbing, JJ., concur.

i[1]
Records, p. 1; the information was signed by Special Prosecution Officer II Luz L.
Quiones-Marcos of the Office of the Special Prosecutor.

ii[2]
Records, p. 60.

iii[3]
First Division is composed of J. Minita Chico-Nazario, ponente; PJ. Francis E. Garchitorena
and J. Jose S. Balajadia, concurring.

iv[4]
Rollo, pp. 56-57.

v[5]
Rollo, p. 72.

vi[6]
The case was deemed submitted for resolution upon filing of the memorandum for Respondent Court
on December 11, 1997 by the Office of the Ombudsman.

vii[7]
Rollo, pp. 39-44.

viii[8]
Rollo, pp. 259-266; the memorandum for the petitioner was signed by Atty. Ruben E. Agpalo.

ix[9]
SEC. 318. Preparation of the Budget by the Local Chief Executive. Upon receipt of the
statements of income and expenditures from the treasurer, the budget proposals of the heads of
departments and offices, and estimates of income and budgetary ceilings from the local finance
committee, the local chief executive shall prepare the executive budget for the ensuing fiscal year
in accordance with the provisions of this Title.
The local chief executive shall submit the said executive budget to the sanggunian concerned
not later than the sixteenth (16th) of October of the current fiscal year. Failure to submit such
budget on the date prescribed herein shall subject the local chief executive to such criminal and
administrative penalties as provided for under this Code and other applicable laws.
SEC. 320. Effectivity of Budgets. The ordinance enacting the annual budget shall take effect
at the beginning of the ensuing calendar year. An ordinance enacting a supplemental budget,
however, shall take effect upon its approval or on the date fixed therein.
The responsibility for the execution of the annual and supplemental budgets and the
accountability therefor shall be vested primarily in the local chief executive concerned.
SEC. 444. The Chief Executive: Powers, Duties, Functions and Compensation xxxx The
municipal mayor shall:
(3) xxx xxx xxx
(ii) Prepare and submit to the sanggunian for approval the executive and supplemental budgets
of the municipality for the [ensuing] calendar years in the manner provided for under Title Five,
Book II of this Code.
x[10]
Rollo, p. 266.

xi[11]
Ponce de Leon vs. Sandiganbayan, 186 SCRA 745, 754, June 25, 1990; Pecho vs.
Sandiganbayan, 238 SCRA 116, 128, November 14, 1994; Jacinto vs. Sandiganbayan, 178 SCRA
254, 259, October 2, 1989; and Medija, Jr. vs. Sandiganbayan, 218 SCRA 219, 223, January 29,
1993.

xii[12]
Rollo, p. 140; the 30-page Manifestation in Lieu of Comment of the OSG, dated March 6,
1996, was signed by then Solicitor General Raul I. Goco, Asst. Solicitor General Romeo C. dela
Cruz and Solicitor Karl B. Miranda.

xiii[13]
170 SCRA 400, 405, February 20, 1989.

xiv[14]
Supra.

xv[15]
Pecho vs. Sandiganbayan, supra at p. 133.

xvi[16]
Art. 2199, Civil Code; Nolledo, Civil Code of the Philippines, 10th ed., Vol. V, p. 927; and
Gonzales-Decano, Notes on Torts and Damages, 1992 ed., pp. 141 & 144.

xvii[17]
Tolentino, The Civil Code, Vol. V, 1992 ed., pp. 633-634.

xviii[18]
Ibid.

xix[19]
TSN, August 9, 1994, p. 3.

xxi[20]
Fuentes, Jr. vs. Court of Appeals, 253 SCRA 430, 438, February 9, 1996; People vs.
Fabrigas, 261 SCRA 436, 448, September 5, 1996.

xxii[21]
Jacinto vs. Sandiganbayan, supra at p. 259.

xxiii[22]
Alejandro vs. People, supra at p. 405.

xxiv[23]
Rollo, p. 56.

xxv[24]
Ibid., pp. 65-68.

xxvi[25]
SEC. 344. Certification on, and Approval of, Vouchers.No money shall be disbursed unless
the local budget officer certifies to the existence of appropriation that has been legally made for the
purpose, the local accountant has obligated said appropriation, and the local treasurer certifies to
the availability of funds for the purpose. Vouchers and payrolls shall be certified to and approved
by the head of the department or office who has administrative control of the fund concerned, as to
validity, propriety, and legality of the claim involved. Except in cases of disbursements involving
regularly recurring administrative expenses such as payrolls for regular or permanent employees,
xxx, approval of the disbursement voucher by the local chief executive himself shall be required
whenever local funds are disbursed.
xxx xxx xxx.

xxvii[26]
Records, p. 219.

xxviii[27]
Records, pp. 322-323.

xxix[28]
Baldivia vs. Lota, 107 Phil 1099, 1103 [1960]; and Discanso vs. Gatmaytan, 109 Phil 816,
920-921 [1960].

xxx[29]
Marcelo vs. Sandiganbayan, 185 SCRA 346, 349, May 14, 1990.

xxxi[30]
Jacinto vs. Sandiganbayan, supra at p. 260.

xxxii[31]
Alejandro vs. Sandiganbayan, supra at p. 405.

xxxiii[32]
Pecho vs. Sandiganbayan, supra, p. 135.

xxxiv[33]
Coronado vs. Sandiganbayan, 225 SCRA 406, 409-410, August 18, 1993; and Nessia vs.
Fermin, 220 SCRA 615, 621-622, March 30, 1993.