THIRD DIVISION

G.R. No. 178454, March 28, 2011

FILIPINA SAMSON, Petitioner,

vs.
JULIA A. RESTRIVERA, Respondent.

DECISION
VILLARAMA, JR., J.:
Petitioner Filipina Samson appeals the Decision dated October 31, 2006 of the Court
of Appeals (CA) in CA-G.R. SP No. 83422 and its Resolution dated June 8, 2007,
denying her motion for reconsideration. The CA affirmed the Ombudsman in finding
petitioner guilty of violating Section 4(b) of Republic Act (R.A.) No. 6713, otherwise
known as the Code of Conduct and Ethical Standards for Public Officials and
Employees.

The facts are as follows:

Petitioner is a government employee, being a department head of the Population
Commission with office at the Provincial Capitol, Trece Martirez City, Cavite.

Sometime in March 2001, petitioner agreed to help her friend, respondent Julia A.
Restrivera, to have the latter's land located in Carmona, Cavite, registered under the
Torrens System. Petitioner said that the expenses would reach P150,000 and
accepted P50,000 from respondent to cover the initial expenses for the titling of
respondent's land. However, petitioner failed to accomplish her task because it was
found out that the land is government property. When petitioner failed to return the
P50,000, respondent sued her for estafa. Respondent also filed an administrative
complaint for grave misconduct or conduct unbecoming a public officer against
petitioner before the Office of the Ombudsman.

The Ombudsman found petitioner guilty of violating Section 4(b) of R.A. No. 6713 and
suspended her from office for six months without pay. The Ombudsman ruled that
petitioner failed to abide by the standard set in Section 4(b) of R.A. No. 6713 and
deprived the government of the benefit of committed service when she embarked on
her private interest to help respondent secure a certificate of title over the latter's land.

Upon motion for reconsideration, the Ombudsman, in an Order dated March 15, 2004,
reduced the penalty to three months suspension without pay. According to the
Ombudsman, petitioner's acceptance of respondent's payment created a perception
that petitioner is a fixer. Her act fell short of the standard of personal conduct required
by Section 4(b) of R.A. No. 6713 that public officials shall endeavor to discourage
wrong perceptions of their roles as dispensers or peddlers of undue patronage. The
Ombudsman held:
x x x [petitioner] admitted x x x that she indeed received the amount of P50,000.00
from the [respondent] and even contracted Engr. Liberato Patromo, alleged
Licensed Geodetic Engineer to do the surveys.
While it may be true that [petitioner] did not actually deal with the other government
agencies for the processing of the titles of the subject property, we believe,
however, that her mere act in accepting the money from the [respondent] with the
assurance that she would work for the issuance of the title is already enough to
create a perception that she is a fixer. Section 4(b) of [R.A.] No. 6713 mandates
 that public officials and employees shall endeavor to discourage wrong
perception of their roles as dispenser or peddler of undue patronage.
xxxx
x x x [petitioner's] act to x x x restore the amount of [P50,000] was to avoid possible
sanctions.
x x x [d]uring the conciliation proceedings held on 19 October 2002 at the barangay
level, it was agreed upon by both parties that [petitioner] be given until 28 February
2003 within which to pay the amount of P50,000.00 including interest. If it was true
that [petitioner] had available money to pay and had been persistent in returning
the amount of [P50,000.00] to the [respondent], she would have easily given the
same right at that moment (on 19 October 2002) in the presence of the Barangay
Officials. x x x. (Stress in the original.)

The CA on appeal affirmed the Ombudsman's Order dated March 19, 2004. The CA
ruled that contrary to petitioner's contentions, the Ombudsman has jurisdiction even if
the act complained of is a private matter. The CA also ruled that petitioner violated
the norms of conduct required of her as a public officer when she demanded and
received the amount of P50,000 on the representation that she can secure a title to
respondent's property and for failing to return the amount. The CA stressed that
Section 4(b) of R.A. No. 6713 requires petitioner to perform and discharge her duties
with the highest degree of excellence, professionalism, intelligence and skill, and to
endeavor to discourage wrong perceptions of her role as a dispenser and peddler of
undue patronage.

Hence, this petition which raises the following issues:

1. Does the Ombudsman have jurisdiction over a case involving a private dealing
by a government employee or where the act complained of is not related to the
performance of official duty?
2. Did the CA commit grave abuse of discretion in finding petitioner
administratively liable despite the dismissal of the estafa case?
3. Did the CA commit grave abuse of discretion in not imposing a lower penalty in
view of mitigating circumstances?

Petitioner insists that where the act complained of is not related to the performance of
official duty, the Ombudsman has no jurisdiction. Petitioner also imputes grave abuse
of discretion on the part of the CA for holding her administratively liable. She points
out that the estafa case was dismissed upon a finding that she was not guilty of fraud
or deceit, hence misconduct cannot be attributed to her. And even assuming that she
is guilty of misconduct, she is entitled to the benefit of mitigating circumstances such
as the fact that this is the first charge against her in her long years of public service.

Respondent counters that the issues raised in the instant petition are the same issues
that the CA correctly resolved. She also alleges that petitioner failed to observe the
mandate that public office is a public trust when she meddled in an affair that belongs
to another agency and received an amount for undelivered work.

We affirm the CA and Ombudsman that petitioner is administratively liable. We hasten

to add, however, that petitioner is guilty of conduct unbecoming a public officer.

On the first issue, we agree with the CA that the Ombudsman has jurisdiction over
respondent's complaint against petitioner although the act complained of involves a
private deal between them. Section 13(1), Article XI of the 1987 Constitution states
that the Ombudsman can investigate on its own or on complaint by any
person any act or omission of any public official or employee when such act or
omission appears to be illegal, unjust, or improper. Under Section 16 of R.A. No.
6770, otherwise known as the Ombudsman Act of 1989, the jurisdiction of the
Ombudsman encompasses all kinds of malfeasance, misfeasance, and nonfeasance
committed by any public officer or employee during his/her tenure. Section 19 of R.A.
No. 6770 also states that the Ombudsman shall act on all complaints relating, but not
limited, to acts or omissions which are unfair or irregular. Thus, even if the complaint
concerns an act of the public official or employee which is not service-connected, the
case is within the jurisdiction of the Ombudsman. The law does not qualify the nature
of the illegal act or omission of the public official or employee that the Ombudsman
may investigate. It does not require that the act or omission be related to or be
connected with or arise from the performance of official duty. Since the law does not
distinguish, neither should we.

On the second issue, it is wrong for petitioner to say that since the estafa case against
her was dismissed, she cannot be found administratively liable. It is settled that
administrative cases may proceed independently of criminal proceedings, and may
continue despite the dismissal of the criminal charges.

For proper consideration instead is petitioner's liability under Sec. 4(A)(b) of R.A. No.
6713. We quote the full text of Section 4 of R.A. No. 6713:
SEC. 4. Norms of Conduct of Public Officials and Employees. - (A) Every public official
and employee shall observe the following as standards of personal conduct in the
discharge and execution of official duties:
(a) Commitment to public interest. - Public officials and employees shall always uphold
the public interest over and above personal interest. All government resources and
powers of their respective offices must be employed and used efficiently, effectively,
honestly and economically, particularly to avoid wastage in public funds and revenues.
(b) Professionalism. - Public officials and employees shall perform and discharge
their duties with the highest degree of excellence, professionalism, intelligence and
skill. They shall enter public service with utmost devotion and dedication to
duty. They shall endeavor to discourage wrong perceptions of their roles as
dispensers or peddlers of undue patronage.
(c) Justness and sincerity. - Public officials and employees shall remain true to the
people at all times. They must act with justness and sincerity and shall not
discriminate against anyone, especially the poor and the underprivileged. They shall
at all times respect the rights of others, and shall refrain from doing acts contrary to
law, good morals, good customs, public policy, public order, public safety and public
interest. They shall not dispense or extend undue favors on account of their office to
their relatives whether by consanguinity or affinity except with respect to appointments
of such relatives to positions considered strictly confidential or as members of their
personal staff whose terms are coterminous with theirs.
(d) Political neutrality. - Public officials and employees shall provide service to
everyone without unfair discrimination and regardless of party affiliation or preference.
(e) Responsiveness to the public. - Public officials and employees shall extend prompt,
courteous, and adequate service to the public. Unless otherwise provided by law or
when required by the public interest, public officials and employees shall provide
information on their policies and procedures in clear and understandable language,
ensure openness of information, public consultations and hearings whenever
appropriate, encourage suggestions, simplify and systematize policy, rules and
procedures, avoid red tape and develop an understanding and appreciation of the
socioeconomic conditions prevailing in the country, especially in the depressed rural
and urban areas.
(f) Nationalism and patriotism. - Public officials and employees shall at all times be
loyal to the Republic and to the Filipino people, promote the use of locally-produced
goods, resources and technology and encourage appreciation and pride of country
and people. They shall endeavor to maintain and defend Philippine sovereignty
against foreign intrusion.
(g) Commitment to democracy. - Public officials and employees shall commit
themselves to the democratic way of life and values, maintain the principle of public
accountability, and manifest by deed the supremacy of civilian authority over the
military. They shall at all times uphold the Constitution and put loyalty to country above
loyalty to persons or party.
(h) Simple living. - Public officials and employees and their families shall lead modest
lives appropriate to their positions and income. They shall not indulge in extravagant
or ostentatious display of wealth in any form.
(B) The Civil Service Commission shall adopt positive measures to promote (1)
observance of these standards including the dissemination of information programs
and workshops authorizing merit increases beyond regular progression steps, to a
limited number of employees recognized by their office colleagues to be outstanding
in their observance of ethical standards; and (2) continuing research and
experimentation on measures which provide positive motivation to public officials and
employees in raising the general level of observance of these standards.

Both the Ombudsman and CA found the petitioner administratively liable for violating
Section 4(A)(b) on professionalism. "Professionalism" is defined as the conduct, aims,
or qualities that characterize or mark a profession. A professional refers to a person
who engages in an activity with great competence. Indeed, to call a person a
professional is to describe him as competent, efficient, experienced, proficient or
polished. In the context of Section 4 (A)(b) of R.A. No. 6713, the observance of
professionalism also means upholding the integrity of public office by endeavoring "to
discourage wrong perception of their roles as dispensers or peddlers of undue
patronage." Thus, a public official or employee should avoid any appearance of
impropriety affecting the integrity of government services. However, it should be noted
that Section 4(A) enumerates the standards of personal conduct for public officers with
reference to "execution of official duties."

In the case at bar, the Ombudsman concluded that petitioner failed to carry out the
standard of professionalism by devoting herself on her personal interest to the
detriment of her solemn public duty. The Ombudsman said that petitioner's act
deprived the government of her committed service because the generation of a
certificate of title was not within her line of public service. In denying petitioner's motion
for reconsideration, the Ombudsman said that it would have been sufficient if petitioner
just referred the respondent to the persons/officials incharge of the processing of the
documents for the issuance of a certificate of title. While it may be true that she did
not actually deal with the other government agencies for the processing of the titles of
the subject property, petitioner's act of accepting the money from respondent with the
assurance that she would work for the issuance of the title is already enough to create
a perception that she is a fixer.

On its part, the CA rejected petitioner's argument that an isolated act is insufficient to
create those "wrong perceptions" or the "impression of influence peddling." It held that
the law enjoins public officers, at all times to respect the rights of others and refrain
from doing acts contrary to law, good customs, public order, public policy, public safety
and public interest. Thus, it is not the plurality of the acts that is being punished but
the commission of the act itself.

Evidently, both the Ombudsman and CA interpreted Section 4(A) of R.A. No. 6713
as broad enough to apply even to private transactions that have no connection to the
duties of one's office. We hold, however, that petitioner may not be penalized for
violation of Section 4 (A)(b) of R.A. No. 6713. The reason though does not lie in the
fact that the act complained of is not at all related to petitioner's discharge of her duties
as department head of the Population Commission.

In addition to its directive under Section 4(B), Congress authorized the Civil Service
Commission (CSC) to promulgate the rules and regulations necessary to implement
R.A. No. 6713. Accordingly, the CSC issued the Rules Implementing the Code of
Conduct and Ethical Standards for Public Officials and Employees (hereafter,
Implementing Rules). Rule V of the Implementing Rules provides for an Incentive and
Rewards System for public officials and employees who have demonstrated
exemplary service and conduct on the basis of their observance of the norms of
conduct laid down in Section 4 of R.A. No. 6713, to wit:

RULE V. INCENTIVES AND REWARDS SYSTEM

SECTION 1. Incentives and rewards shall be granted officials and employees who
have demonstrated exemplary service and conduct on the basis of their observance
of the norms of conduct laid down in Section 4 of the Code, namely:
(a) Commitment to public interest. - x x x
(b) Professionalism. - x x x
(c) Justness and sincerity. - x x x
(d) Political neutrality. - x x x
(e) Responsiveness to the public. - x x x
(f) Nationalism and patriotism. - x x x
(g) Commitment to democracy. - x x x
(h) Simple living. - x x x

On the other hand, Rule X of the Implementing Rules enumerates grounds for
administrative disciplinary action, as follows:
RULE X. GROUNDS FOR ADMINISTRATIVE DISCIPLINARY ACTION
SECTION 1. In addition to the grounds for administrative disciplinary action prescribed
under existing laws, the acts and omissions of any official or employee, whether or not
he holds office or employment in a casual, temporary, hold-over, permanent or regular
capacity, declared unlawful or prohibited by the Code, shall constitute grounds for
administrative disciplinary action, and without prejudice to criminal and civil liabilities
provided herein, such as:
(a) Directly or indirectly having financial and material interest in any transaction
requiring the approval of his office. x x x.
(b) Owning, controlling, managing or accepting employment as officer, employee,
consultant, counsel, broker, agent, trustee, or nominee in any private enterprise
regulated, supervised or licensed by his office, unless expressly allowed by law;
(c) Engaging in the private practice of his profession unless authorized by the
Constitution, law or regulation, provided that such practice will not conflict or tend to
conflict with his official functions;
(d) Recommending any person to any position in a private enterprise which has a
regular or pending official transaction with his office, unless such recommendation or
referral is mandated by (1) law, or (2) international agreements, commitment and
obligation, or as part of the functions of his office;
xxxx
(e) Disclosing or misusing confidential or classified information officially known to him
by reason of his office and not made available to the public, to further his private
interests or give undue advantage to anyone, or to prejudice the public interest;
(f) Soliciting or accepting, directly or indirectly, any gift, gratuity, favor, entertainment,
loan or anything of monetary value which in the course of his official duties or in
connection with any operation being regulated by, or any transaction which may be
affected by the functions of, his office. x x x.
xxxx
(g) Obtaining or using any statement filed under the Code for any purpose contrary to
morals or public policy or any commercial purpose other than by news and
communications media for dissemination to the general public;
(h) Unfair discrimination in rendering public service due to party affiliation or
preference;
(i) Disloyalty to the Republic of the Philippines and to the Filipino people;
(j) Failure to act promptly on letters and request within fifteen (15) days from receipt,
except as otherwise provided in these Rules;
(k) Failure to process documents and complete action on documents and papers
within a reasonable time from preparation thereof, except as otherwise provided in
these Rules;
(l) Failure to attend to anyone who wants to avail himself of the services of the office,
or to act promptly and expeditiously on public personal transactions;
(m) Failure to file sworn statements of assets, liabilities and net worth, and disclosure
of business interests and financial connections; and
(n) Failure to resign from his position in the private business enterprise within thirty
(30) days from assumption of public office when conflict of interest arises, and/or
failure to divest himself of his shareholdings or interests in private business enterprise
within sixty (60) days from such assumption of public office when conflict of interest
arises: Provided, however, that for those who are already in the service and a conflict
of interest arises, the official or employee must either resign or divest himself of said
interests within the periods herein-above provided, reckoned from the date when the
conflict of interest had arisen.

In Domingo v. Office of the Ombudsman, this Court had the occasion to rule that failure
to abide by the norms of conduct under Section 4(A)(b) of R.A. No. 6713, in relation
to its implementing rules, is not a ground for disciplinary action, to wit:
“The charge of violation of Section 4(b) of R.A. No. 6713 deserves further
comment. The provision commands that "public officials and employees shall
perform and discharge their duties with the highest degree of excellence,
professionalism, intelligence and skill." Said provision merely enunciates
 "professionalism as an ideal norm of conduct to be observed by public
servants, in addition to commitment to public interest, justness and sincerity,
political neutrality, responsiveness to the public, nationalism and patriotism,
commitment to democracy and simple living. Following this perspective, Rule
V of the Implementing Rules of R.A. No. 6713 adopted by the Civil Service
Commission mandates the grant of incentives and rewards to officials and
employees who demonstrate exemplary service and conduct based on their
observance of the norms of conduct laid down in Section 4. In other words,
under the mandated incentives and rewards system, officials and employees
who comply with the high standard set by law would be rewarded. Those who
fail to do so cannot expect the same favorable treatment. However, the
Implementing Rules does not provide that they will have to be sanctioned
for failure to observe these norms of conduct. Indeed, Rule X of the
Implementing Rules affirms as grounds for administrative disciplinary
action only acts "declared unlawful or prohibited by the Code." Rule X
specifically mentions at least twenty three (23) acts or omissions as
grounds for administrative disciplinary action. Failure to abide by the
norms of conduct under Section 4(b) of R.A. No. 6713 is not one of them.
(Emphasis supplied.)”

Consequently, the Court dismissed the charge of violation of Section 4(A)(b) of R.A.
No. 6713 in that case.

We find no compelling reason to depart from our pronouncement in Domingo. Thus,

we reverse the CA and Ombudsman that petitioner is administratively liable under
Section 4(A)(b) of R.A. No. 6713. In so ruling, we do no less and no more than apply
the law and its implementing rules issued by the CSC under the authority given to it
by Congress. Needless to stress, said rules partake the nature of a statute and are
binding as if written in the law itself. They have the force and effect of law and enjoy
the presumption of constitutionality and legality until they are set aside with finality in
an appropriate case by a competent court.

But is petitioner nonetheless guilty of grave misconduct, which is a ground for

disciplinary action under R.A. No. 6713?

We also rule in the negative.

Misconduct is a transgression of some established and definite rule of action, more
particularly, unlawful behavior or gross negligence by a public officer. The misconduct
is grave if it involves any of the additional elements of corruption, willful intent to violate
the law or to disregard established rules, which must be proved by substantial
evidence. Otherwise, the misconduct is only simple. Conversely, one cannot be found
guilty of misconduct in the absence of substantial evidence. In one case, we affirmed
a finding of grave misconduct because there was substantial evidence of voluntary
disregard of established rules in the procurement of supplies as well as of manifest
intent to disregard said rules. We have also ruled that complicity in the transgression
of a regulation of the Bureau of Internal Revenue constitutes simple misconduct only
as there was failure to establish flagrancy in respondent's act for her to be held liable
of gross misconduct. On the other hand, we have likewise dismissed a complaint for
knowingly rendering an unjust order, gross ignorance of the law, and grave
misconduct, since the complainant did not even indicate the particular acts of the judge
which were allegedly violative of the Code of Judicial Conduct.
In this case, respondent failed to prove (1) petitioner's violation of an established and
definite rule of action or unlawful behavior or gross negligence, and (2) any of the
aggravating elements of corruption, willful intent to violate a law or to disregard
established rules on the part of petitioner. In fact, respondent could merely point to
petitioner's alleged failure to observe the mandate that public office is a public trust
when petitioner allegedly meddled in an affair that belongs to another agency and
received an amount for undelivered work.

True, public officers and employees must be guided by the principle enshrined in the
Constitution that public office is a public trust. However, respondent's allegation that
petitioner meddled in an affair that belongs to another agency is a serious but
unproven accusation. Respondent did not even say what acts of interference were
done by petitioner. Neither did respondent say in which government agency petitioner
committed interference. And causing the survey of respondent's land can hardly be
considered as meddling in the affairs of another government agency by petitioner who
is connected with the Population Commission. It does not show that petitioner made
an illegal deal or any deal with any government agency. Even the Ombudsman has
recognized this fact. The survey shows only that petitioner contracted a surveyor.
Respondent said nothing on the propriety or legality of what petitioner did. The survey
shows that petitioner also started to work on her task under their agreement. Thus,
respondent's allegation that petitioner received an amount for undelivered work is not
entirely correct. Rather, petitioner failed to fully accomplish her task in view of the
legal obstacle that the land is government property.

However, the foregoing does not mean that petitioner is absolved of any administrative
liability.
But first, we need to modify the CA finding that petitioner demanded the amount of
P50,000 from respondent because respondent did not even say that petitioner
demanded money from her. We find in the allegations and counter-allegations that
respondent came to petitioner's house in Binan, Laguna, and asked petitioner if she
can help respondent secure a title to her land which she intends to sell. Petitioner
agreed to help. When respondent asked about the cost, petitioner said P150,000 and
accepted P50,000 from respondent to cover the initial expenses.

We agree with the common finding of the Ombudsman and the CA that, in the
aftermath of the aborted transaction, petitioner still failed to return the amount she
accepted. As aptly stated by the Ombudsman, if petitioner was persistent in returning
the amount of P50,000 until the preliminary investigation of the estafa case on
September 18, 2003, there would have been no need for the parties' agreement that
petitioner be given until February 28, 2003 to pay said amount including
interest. Indeed, petitioner's belated attempt to return the amount was intended to
avoid possible sanctions and impelled solely by the filing of the estafa case against
her.

For reneging on her promise to return aforesaid amount, petitioner is guilty of conduct
unbecoming a public officer. In Joson v. Macapagal, we have also ruled that the
respondents therein were guilty of conduct unbecoming of government employees
when they reneged on their promise to have pertinent documents notarized and
submitted to the Government Service Insurance System after the complainant's rights
over the subject property were transferred to the sister of one of the respondents.
Recently, in Assistant Special Prosecutor III Rohermia J. Jamsani-Rodriguez v.
Justices Gregory S. Ong, et al., we said that unbecoming conduct means improper
performance and applies to a broader range of transgressions of rules not only of
social behavior but of ethical practice or logical procedure or prescribed method.

This Court has too often declared that any act that falls short of the exacting standards
for public office shall not be countenanced. The Constitution categorically declares as
follows:
SECTION 1. Public office is a public trust. Public officers and employees must at
all times be accountable to the people, serve them with utmost responsibility,
integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest
lives.

Petitioner should have complied with her promise to return the amount to respondent
after failing to accomplish the task she had willingly accepted. However, she waited
until respondent sued her for estafa, thus reinforcing the latter's suspicion that
petitioner misappropriated her money. Although the element of deceit was not proven
in the criminal case respondent filed against the petitioner, it is clear that by her
actuations, petitioner violated basic social and ethical norms in her private
dealings. Even if unrelated to her duties as a public officer, petitioner's transgression
could erode the public's trust in government employees, moreso because she holds a
high position in the service.

As to the penalty, we reprimanded the respondents in Joson and imposed a fine

in Jamsani-Rodriguez. Under the circumstances of this case, a fine of P15,000 in lieu
of the three months suspension is proper. In imposing said fine, we have considered
as a mitigating circumstance petitioner's 37 years of public service and the fact that
this is the first charge against her. Section 53 of the Revised Uniform Rules on
Administrative Cases in the Civil Service provides that mitigating circumstances such
as length of service shall be considered. And since petitioner has earlier agreed to
return the amount of P50,000 including interest, we find it proper to order her to comply
with said agreement. Eventually, the parties may even find time to rekindle their
friendship.

WHEREFORE, we SET ASIDE the Decision dated October 31, 2006 of the Court of
Appeals and its Resolution dated June 8, 2007 in CA-G.R. SP No. 83422, as well as
the Decision dated January 6, 2004 and Order dated March 15, 2004 of the
Ombudsman in OMB-L-A-03-0552-F, and ENTER a new judgment as follows:

We find petitioner GUILTY of conduct unbecoming a public officer and impose upon
her a FINE of P15,000.00 to be paid at the Office of the Ombudsman within five (5)
days from finality of this Decision.
We also ORDER petitioner to return to respondent the amount of P50,000.00 with
interest thereon at 12% per annum from March 2001 until the said amount shall have
been fully paid.

With costs against the petitioner.

SO ORDERED.
 EN BANC
G.R. No. 161107, March 12, 2013

HON. MA. LOURDES C. FERNANDO, in her capacity as City Mayor of Marikina

City, JOSEPHINE C. EVANGELIST A, in her capacity as Chief, Permit Division,
Office of the City Engineer, and ALFONSO ESPIRITU, in his capacity as City
Engineer of Marikina City, Petitioners,
vs.
ST. SCHOLASTICA'S COLLEGE and ST. SCHOLASTICA'S ACADEMY-
MARIKINA, INC., Respondents.

DECISION
MENDOZA, J.:
Before this Court is a petition for review on certiorari under Rule 45 of the Rules of
Court, which seeks to set aside the December 1, 2003 Decision 1 of the Court of
Appeals (CA) in CA-G.R. SP No. 75691.
The Facts
Respondents St. Scholastica’s College (SSC) and St. Scholastica’s Academy-
Marikina, Inc. (SSA-Marikina) are educational institutions organized under the laws of
the Republic of the Philippines, with principal offices and business addresses at Leon
Guinto Street, Malate, Manila, and at West Drive, Marikina Heights, Marikina City,
respectively.2

Respondent SSC is the owner of four (4) parcels of land measuring a total of 56,306.80
square meters, located in Marikina Heights and covered by Transfer Certificate Title
(TCT) No. 91537. Located within the property are SSA-Marikina, the residence of the
sisters of the Benedictine Order, the formation house of the novices, and the
retirement house for the elderly sisters. The property is enclosed by a tall concrete
perimeter fence built some thirty (30) years ago. Abutting the fence along the West
Drive are buildings, facilities, and other improvements.3

The petitioners are the officials of the City Government of Marikina. On September 30,
1994, the Sangguniang Panlungsod of Marikina City enacted Ordinance No.
192,4 entitled "Regulating the Construction of Fences and Walls in the Municipality of
Marikina." In 1995 and 1998, Ordinance Nos. 2175 and 2006 were enacted to amend
Sections 7 and 5, respectively. Ordinance No. 192, as amended, is reproduced
hereunder, as follows:

ORDINANCE No. 192

Series of 1994
ORDINANCE REGULATING THE CONSTRUCTION OF FENCES AND WALLS IN
THE MUNICIPALITY OF MARIKINA
WHEREAS, under Section 447.2 of Republic Act No. 7160 otherwise known as the
Local Government Code of 1991 empowers the Sangguniang Bayan as the local
legislative body of the municipality to "x x x Prescribe reasonable limits and restraints
on the use of property within the jurisdiction of the municipality, x x x";
WHEREAS the effort of the municipality to accelerate its economic and physical
development, coupled with urbanization and modernization, makes imperative the
adoption of an ordinance which shall embody up-to-date and modern technical design
in the construction of fences of residential, commercial and industrial buildings;
WHEREAS, Presidential Decree No. 1096, otherwise known as the National Building
Code of the Philippines, does not adequately provide technical guidelines for the
construction of fences, in terms of design, construction, and criteria;
WHEREAS, the adoption of such technical standards shall provide more efficient and
effective enforcement of laws on public safety and security;
WHEREAS, it has occurred in not just a few occasions that high fences or walls did
not actually discourage but, in fact, even protected burglars, robbers, and other
lawless elements from the view of outsiders once they have gained ingress into these
walls, hence, fences not necessarily providing security, but becomes itself a "security
problem";
WHEREAS, to discourage, suppress or prevent the concealment of prohibited or
unlawful acts earlier enumerated, and as guardian of the people of Marikina, the
municipal government seeks to enact and implement rules and ordinances to protect
and promote the health, safety and morals of its constituents;
WHEREAS, consistent too, with the "Clean and Green Program" of the government,
lowering of fences and walls shall encourage people to plant more trees and
ornamental plants in their yards, and when visible, such trees and ornamental plants
are expected to create an aura of a clean, green and beautiful environment for
Marikeños;
WHEREAS, high fences are unsightly that, in the past, people planted on sidewalks
to "beautify" the façade of their residences but, however, become hazards and
obstructions to pedestrians;
WHEREAS, high and solid walls as fences are considered "un-neighborly" preventing
community members to easily communicate and socialize and deemed to create
"boxed-in" mentality among the populace;
WHEREAS, to gather as wide-range of opinions and comments on this proposal, and
as a requirement of the Local Government Code of 1991 (R.A. 7160), the
Sangguniang Bayan of Marikina invited presidents or officers of homeowners
associations, and commercial and industrial establishments in Marikina to two public
hearings held on July 28, 1994 and August 25, 1994;
WHEREAS, the rationale and mechanics of the proposed ordinance were fully
presented to the attendees and no vehement objection was presented to the municipal
government;
NOW, THEREFORE, BE IT ORDAINED BY THE SANGGUINANG BAYAN OF
MARIKINA IN SESSION DULY ASSEMBLED:
Section 1. Coverage: This Ordinance regulates the construction of all fences, walls
and gates on lots classified or used for residential, commercial, industrial, or special
purposes.
Section 2. Definition of Terms:
a. Front Yard – refers to the area of the lot fronting a street, alley or public
thoroughfare.
b. Back Yard – the part of the lot at the rear of the structure constructed therein.
c. Open fence – type of fence which allows a view of "thru-see" of the inner yard
and the improvements therein. (Examples: wrought iron, wooden lattice,
cyclone wire)
d. Front gate – refers to the gate which serves as a passage of persons or
vehicles fronting a street, alley, or public thoroughfare.
Section 3. The standard height of fences or walls allowed under this ordinance are as
follows:
 (1) Fences on the front yard – shall be no more than one (1) meter in height.
Fences in excess of one (1) meter shall be of an open fence type, at least eighty
percent (80%) see-thru; and
(2) Fences on the side and back yard – shall be in accordance with the
provisions of P.D. 1096 otherwise known as the National Building Code.
Section 4. No fence of any kind shall be allowed in areas specifically reserved or
classified as parks.
Section 5. In no case shall walls and fences be built within the five (5) meter parking
area allowance located between the front monument line and the building line of
commercial and industrial establishments and educational and religious institutions. 7
Section 6. Exemption.
(1) The Ordinance does not cover perimeter walls of residential subdivisions.
(2) When public safety or public welfare requires, the Sangguniang Bayan may
allow the construction and/or maintenance of walls higher than as prescribed
herein and shall issue a special permit or exemption.
Section 7. Transitory Provision. Real property owners whose existing fences and walls
do not conform to the specifications herein are allowed adequate period of time from
the passage of this Ordinance within which to conform, as follows:
(1) Residential houses – eight (8) years
(2) Commercial establishments – five (5) years
(3) Industrial establishments – three (3) years
(4) Educational institutions – five (5) years8 (public and privately owned)
Section 8. Penalty. Walls found not conforming to the provisions of this Ordinance
shall be demolished by the municipal government at the expense of the owner of the
lot or structure.
Section 9. The Municipal Engineering Office is tasked to strictly implement this
ordinance, including the issuance of the necessary implementing guidelines, issuance
of building and fencing permits, and demolition of non-conforming walls at the lapse
of the grace period herein provided.
Section 10. Repealing Clause. All existing Ordinances and Resolutions, Rules and
Regulations inconsistent with the foregoing provisions are hereby repealed, amended
or modified.
Section 11. Separability Clause. If for any reason or reasons, local executive orders,
rules and regulations or parts thereof in conflict with this Ordinance are hereby
repealed and/or modified accordingly.
Section 12. Effectivity. This ordinance takes effect after publication.
APPROVED: September 30, 1994
(Emphases supplied)

On April 2, 2000, the City Government of Marikina sent a letter to the respondents
ordering them to demolish and replace the fence of their Marikina property to make it
80% see-thru, and, at the same time, to move it back about six (6) meters to provide
parking space for vehicles to park.9 On April 26, 2000, the respondents requested for
an extension of time to comply with the directive. 10 In response, the petitioners,
through then City Mayor Bayani F. Fernando, insisted on the enforcement of the
subject ordinance.

Not in conformity, the respondents filed a petition for prohibition with an application for
a writ of preliminary injunction and temporary restraining order before the Regional
Trial Court, Marikina, Branch 273 (RTC), docketed as SCA Case No. 2000-381-MK.11
The respondents argued that the petitioners were acting in excess of jurisdiction in
enforcing Ordinance No. 192, asserting that such contravenes Section 1, Article III of
the 1987 Constitution. That demolishing their fence and constructing it six (6) meters
back would result in the loss of at least 1,808.34 square meters, worth about
₱9,041,700.00, along West Drive, and at least 1,954.02 square meters, worth roughly
₱9,770,100.00, along East Drive. It would also result in the destruction of the garbage
house, covered walk, electric house, storage house, comfort rooms, guards’ room,
guards’ post, waiting area for visitors, waiting area for students, Blessed Virgin Shrine,
P.E. area, and the multi-purpose hall, resulting in the permanent loss of their beneficial
use. The respondents, thus, asserted that the implementation of the ordinance on their
property would be tantamount to an appropriation of property without due process of
law; and that the petitioners could only appropriate a portion of their property through
eminent domain. They also pointed out that the goal of the provisions to deter lawless
elements and criminality did not exist as the solid concrete walls of the school had
served as sufficient protection for many years.12

The petitioners, on the other hand, countered that the ordinance was a valid exercise
of police power, by virtue of which, they could restrain property rights for the protection
of public safety, health, morals, or the promotion of public convenience and general
prosperity.13

On June 30, 2000, the RTC issued a writ of preliminary injunction, enjoining the
petitioners from implementing the demolition of the fence at SSC’s Marikina property. 14
Ruling of the RTC

On the merits, the RTC rendered a Decision,15 dated October 2, 2002, granting the
petition and ordering the issuance of a writ of prohibition commanding the petitioners
to permanently desist from enforcing or implementing Ordinance No. 192 on the
respondents’ property.

The RTC agreed with the respondents that the order of the petitioners to demolish the
fence at the SSC property in Marikina and to move it back six (6) meters would amount
to an appropriation of property which could only be done through the exercise of
eminent domain. It held that the petitioners could not take the respondents’ property
under the guise of police power to evade the payment of just compensation.
It did not give weight to the petitioners’ contention that the parking space was for the
benefit of the students and patrons of SSA-Marikina, considering that the respondents
were already providing for sufficient parking in compliance with the standards under
Rule XIX of the National Building Code.

It further found that the 80% see-thru fence requirement could run counter to the
respondents’ right to privacy, considering that the property also served as a residence
of the Benedictine sisters, who were entitled to some sense of privacy in their affairs.
It also found that the respondents were able to prove that the danger to security had
no basis in their case. Moreover, it held that the purpose of beautification could not be
used to justify the exercise of police power.

It also observed that Section 7 of Ordinance No. 192, as amended, provided for
retroactive application. It held, however, that such retroactive effect should not impair
the respondents’ vested substantive rights over the perimeter walls, the six-meter
strips of land along the walls, and the building, structures, facilities, and improvements,
which would be destroyed by the demolition of the walls and the seizure of the strips
of land.

The RTC also found untenable the petitioners’ argument that Ordinance No. 192 was
a remedial or curative statute intended to correct the defects of buildings and
structures, which were brought about by the absence or insufficiency of laws. It ruled
that the assailed ordinance was neither remedial nor curative in nature, considering
that at the time the respondents’ perimeter wall was built, the same was valid and
legal, and the ordinance did not refer to any previous legislation that it sought to
correct.
The RTC noted that the petitioners could still take action to expropriate the subject
property through eminent domain.

The RTC, thus, disposed:

WHEREFORE, the petition is GRANTED. The writ of prohibition is hereby issued
commanding the respondents to permanently desist from enforcing or implementing
Ordinance No. 192, Series of 1994, as amended, on petitioners’ property in question
located at Marikina Heights, Marikina, Metro Manila.
No pronouncement as to costs.
SO ORDERED.16
Ruling of the CA
In its December 1, 2003 Decision, the CA dismissed the petitioners’ appeal and
affirmed the RTC decision.

The CA reasoned out that the objectives stated in Ordinance No. 192 did not justify
the exercise of police power, as it did not only seek to regulate, but also involved the
taking of the respondents’ property without due process of law. The respondents were
bound to lose an unquantifiable sense of security, the beneficial use of their structures,
and a total of 3,762.36 square meters of property. It, thus, ruled that the assailed
ordinance could not be upheld as valid as it clearly invaded the personal and property
rights of the respondents and "[f]or being unreasonable, and undue restraint of
trade."17

It noted that although the petitioners complied with procedural due process in enacting
Ordinance No. 192, they failed to comply with substantive due process. Hence, the
failure of the respondents to attend the public hearings in order to raise objections did
not amount to a waiver of their right to question the validity of the ordinance.

The CA also shot down the argument that the five-meter setback provision for parking
was a legal easement, the use and ownership of which would remain with, and inure
to, the benefit of the respondents for whom the easement was primarily intended. It
found that the real intent of the setback provision was to make the parking space free
for use by the public, considering that such would cease to be for the exclusive use of
the school and its students as it would be situated outside school premises and beyond
the school administration’s control.

In affirming the RTC ruling that the ordinance was not a curative statute, the CA found
that the petitioner failed to point out any irregularity or invalidity in the provisions of the
National Building Code that required correction or cure. It noted that any correction in
the Code should be properly undertaken by the Congress and not by the City Council
of Marikina through an ordinance.

The CA, thus, disposed:

WHEREFORE, all foregoing premises considered, the instant appeal is DENIED. The
October 2, 2002 Decision and the January 13, 2003 Order of the Regional Trial Court
(RTC) of Marikina City, Branch 273, granting petitioners-appellees’ petition for
Prohibition in SCA Case No. 2000-381-MK are hereby AFFIRMED.
SO ORDERED.18

Aggrieved by the decision of the CA, the petitioners are now before this Court
presenting the following

ASSIGNMENT OF ERRORS
1. Whether or Not the Honorable Court of Appeals Erred in Declaring that City
Ordinance No. 192, Series Of 1994 is not a Valid Exercise of Police Power;
2. Whether or Not the Honorable Court of Appeals Erred in Ruling that the
Aforementioned Ordinance is an Exercise of the City of the Power of Eminent Domain;
3. Whether or Not the Honorable Court of Appeals Erred in Declaring that the City
Violated the Due Process Clause in Implementing Ordinance No. 192, Series Of 1994;
and
4. Whether or Not the Honorable Court of Appeals Erred in Ruling that the Above-
Mentioned Ordinance cannot be Given Retroactive Application.19

In this case, the petitioners admit that Section 5 of the assailed ordinance, pertaining
to the five-meter setback requirement is, as held by the lower courts,
invalid.20 Nonetheless, the petitioners argue that such invalidity was subsequently
cured by Zoning Ordinance No. 303, series of 2000. They also contend that Section
3, relating to the 80% see-thru fence requirement, must be complied with, as it remains
to be valid.

Ruling of the Court

The ultimate question before the Court is whether Sections 3.1 and 5 of Ordinance
No. 192 are valid exercises of police power by the City Government of Marikina.
"Police power is the plenary power vested in the legislature to make statutes and
ordinances to promote the health, morals, peace, education, good order or safety and
general welfare of the people."21 The State, through the legislature, has delegated the
exercise of police power to local government units, as agencies of the State. This
delegation of police power is embodied in Section 1622 of the Local Government Code
of 1991 (R.A. No. 7160), known as the General Welfare Clause,23 which has two
branches. "The first, known as the general legislative power, authorizes the municipal
council to enact ordinances and make regulations not repugnant to law, as may be
necessary to carry into effect and discharge the powers and duties conferred upon the
municipal council by law. The second, known as the police power proper, authorizes
the municipality to enact ordinances as may be necessary and proper for the health
and safety, prosperity, morals, peace, good order, comfort, and convenience of the
municipality and its inhabitants, and for the protection of their property." 24

White Light Corporation v. City of Manila,25 discusses the test of a valid ordinance:
The test of a valid ordinance is well established. A long line of decisions including City
of Manila has held that for an ordinance to be valid, it must not only be within the
corporate powers of the local government unit to enact and pass according to the
procedure prescribed by law, it must also conform to the following substantive
requirements: (1) must not contravene the Constitution or any statute; (2) must not be
unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but
may regulate trade; (5) must be general and consistent with public policy; and (6) must
not be unreasonable.26

Ordinance No. 192 was passed by the City Council of Marikina in the apparent
exercise of its police power. To successfully invoke the exercise of police power as
the rationale for the enactment of an ordinance and to free it from the imputation of
constitutional infirmity, two tests have been used by the Court – the rational
relationship test and the strict scrutiny test:
We ourselves have often applied the rational basis test mainly in analysis of equal
protection challenges. Using the rational basis examination, laws or ordinances are
upheld if they rationally further a legitimate governmental interest. Under intermediate
review, governmental interest is extensively examined and the availability of less
restrictive measures is considered. Applying strict scrutiny, the focus is on the
presence of compelling, rather than substantial, governmental interest and on the
absence of less restrictive means for achieving that interest.27
Even without going to a discussion of the strict scrutiny test, Ordinance No. 192, series
of 1994 must be struck down for not being reasonably necessary to accomplish the
City’s purpose. More importantly, it is oppressive of private rights.

Under the rational relationship test, an ordinance must pass the following requisites
as discussed in Social Justice Society (SJS) v. Atienza, Jr.:28
As with the State, local governments may be considered as having properly exercised
their police power only if the following requisites are met: (1) the interests of the public
generally, as distinguished from those of a particular class, require its exercise and (2)
the means employed are reasonably necessary for the accomplishment of the purpose
and not unduly oppressive upon individuals. In short, there must be a concurrence of
a lawful subject and lawful method.29

Lacking a concurrence of these two requisites, the police power measure shall be
struck down as an arbitrary intrusion into private rights and a violation of the due
process clause.30
Section 3.1 and 5 of the assailed ordinance are pertinent to the issue at hand, to wit:
Section 3. The standard height of fences of walls allowed under this ordinance are as
follows:
(1) Fences on the front yard – shall be no more than one (1) meter in height. Fences
in excess of one (1) meter shall be an open fence type, at least eighty percent (80%)
see-thru;
xxx xxx xxx
Section 5. In no case shall walls and fences be built within the five (5) meter parking
area allowance located between the front monument line and the building line of
commercial and industrial establishments and educational and religious institutions.
The respondents, thus, sought to prohibit the petitioners from requiring them to (1)
demolish their existing concrete wall, (2) build a fence (in excess of one meter) which
must be 80% see-thru, and (3) build the said fence six meters back in order to provide
a parking area.

Setback Requirement
The Court first turns its attention to Section 5 which requires the five-meter setback of
the fence to provide for a parking area. The petitioners initially argued that the
ownership of the parking area to be created would remain with the respondents as it
would primarily be for the use of its students and faculty, and that its use by the public
on non-school days would only be incidental. In their Reply, however, the petitioners
admitted that Section 5 was, in fact, invalid for being repugnant to the Constitution.31

The Court agrees with the latter position.

The Court joins the CA in finding that the real intent of the setback requirement was to
make the parking space free for use by the public, considering that it would no longer
be for the exclusive use of the respondents as it would also be available for use by the
general public. Section 9 of Article III of the 1987 Constitution, a provision on eminent
domain, provides that private property shall not be taken for public use without just
compensation.

The petitioners cannot justify the setback by arguing that the ownership of the property
will continue to remain with the respondents. It is a settled rule that neither the
acquisition of title nor the total destruction of value is essential to taking. In fact, it is
usually in cases where the title remains with the private owner that inquiry should be
made to determine whether the impairment of a property is merely regulated or
amounts to a compensable taking.32 The Court is of the view that the implementation
of the setback requirement would be tantamount to a taking of a total of 3,762.36
square meters of the respondents’ private property for public use without just
compensation, in contravention to the Constitution.

Anent the objectives of prevention of concealment of unlawful acts and "un-

neighborliness," it is obvious that providing for a parking area has no logical connection
to, and is not reasonably necessary for, the accomplishment of these goals.

Regarding the beautification purpose of the setback requirement, it has long been
settled that the State may not, under the guise of police power, permanently divest
owners of the beneficial use of their property solely to preserve or enhance the
aesthetic appearance of the community.33 The Court, thus, finds Section 5 to be
unreasonable and oppressive as it will substantially divest the respondents of the
beneficial use of their property solely for aesthetic purposes. Accordingly, Section 5 of
Ordinance No. 192 is invalid.

The petitioners, however, argue that the invalidity of Section 5 was properly cured by
Zoning Ordinance No. 303,34Series of 2000, which classified the respondents’
property to be within an institutional zone, under which a five-meter setback has been
required.

The petitioners are mistaken. Ordinance No. 303, Series of 2000, has no bearing to
the case at hand.
The Court notes with displeasure that this argument was only raised for the first time
on appeal in this Court in the petitioners’ Reply. Considering that Ordinance No. 303
was enacted on December 20, 2000, the petitioners could very well have raised it in
their defense before the RTC in 2002. The settled rule in this jurisdiction is that a party
cannot change the legal theory of this case under which the controversy was heard
and decided in the trial court. It should be the same theory under which the review on
appeal is conducted. Points of law, theories, issues, and arguments not adequately
brought to the attention of the lower court will not be ordinarily considered by a
reviewing court, inasmuch as they cannot be raised for the first time on appeal. This
will be offensive to the basic rules of fair play, justice, and due process. 35

Furthermore, the two ordinances have completely different purposes and subjects.
Ordinance No. 192 aims to regulate the construction of fences, while Ordinance No.
303 is a zoning ordinance which classifies the city into specific land uses. In fact, the
five-meter setback required by Ordinance No. 303 does not even appear to be for the
purpose of providing a parking area.

By no stretch of the imagination, therefore, can Ordinance No. 303, "cure" Section 5
of Ordinance No. 192.

In any case, the clear subject of the petition for prohibition filed by the respondents is
Ordinance No. 192 and, as such, the precise issue to be determined is whether the
petitioners can be prohibited from enforcing the said ordinance, and no other, against
the respondents.

80% See-Thru Fence Requirement

The petitioners argue that while Section 5 of Ordinance No. 192 may be invalid,
Section 3.1 limiting the height of fences to one meter and requiring fences in excess
of one meter to be at least 80% see-thru, should remain valid and enforceable against
the respondents.

The Court cannot accommodate the petitioner.

For Section 3.1 to pass the rational relationship test, the petitioners must show the
reasonable relation between the purpose of the police power measure and the means
employed for its accomplishment, for even under the guise of protecting the public
interest, personal rights and those pertaining to private property will not be permitted
to be arbitrarily invaded.36

The principal purpose of Section 3.1 is "to discourage, suppress or prevent the
concealment of prohibited or unlawful acts." The ultimate goal of this objective is
clearly the prevention of crime to ensure public safety and security. The means
employed by the petitioners, however, is not reasonably necessary for the
accomplishment of this purpose and is unduly oppressive to private rights. The
petitioners have not adequately shown, and it does not appear obvious to this Court,
that an 80% see-thru fence would provide better protection and a higher level of
security, or serve as a more satisfactory criminal deterrent, than a tall solid concrete
wall. It may even be argued that such exposed premises could entice and tempt would-
be criminals to the property, and that a see-thru fence would be easier to bypass and
breach. It also appears that the respondents’ concrete wall has served as more than
sufficient protection over the last 40 years.

As to the beautification purpose of the assailed ordinance, as previously discussed,

the State may not, under the guise of police power, infringe on private rights solely for
the sake of the aesthetic appearance of the community. Similarly, the Court cannot
perceive how a see-thru fence will foster "neighborliness" between members of a
community.

Compelling the respondents to construct their fence in accordance with the assailed
ordinance is, thus, a clear encroachment on their right to property, which necessarily
includes their right to decide how best to protect their property.

It also appears that requiring the exposure of their property via a see-thru fence is
violative of their right to privacy, considering that the residence of the Benedictine nuns
is also located within the property. The right to privacy has long been considered a
fundamental right guaranteed by the Constitution that must be protected from intrusion
or constraint. The right to privacy is essentially the right to be let alone, 37 as
governmental powers should stop short of certain intrusions into the personal life of its
citizens.38 It is inherent in the concept of liberty, enshrined in the Bill of Rights (Article
III) in Sections 1, 2, 3(1), 6, 8, and 17, Article III of the 1987 Constitution.39

The enforcement of Section 3.1 would, therefore, result in an undue interference with
the respondents’ rights to property and privacy. Section 3.1 of Ordinance No. 192 is,
thus, also invalid and cannot be enforced against the respondents.

No Retroactivity
Ordinance No. 217 amended Section 7 of Ordinance No. 192 by including the
regulation of educational institutions which was unintentionally omitted, and giving said
educational institutions five (5) years from the passage of Ordinance No. 192 (and not
Ordinance No. 217) to conform to its provisions.40 The petitioners argued that the
amendment could be retroactively applied because the assailed ordinance is a
curative statute which is retroactive in nature.

Considering that Sections 3.1 and 5 of Ordinance No. 192 cannot be enforced against
the respondents, it is no longer necessary to rule on the issue of retroactivity. The
Court shall, nevertheless, pass upon the issue for the sake of clarity.
"Curative statutes are enacted to cure defects in a prior law or to validate legal
proceedings which would otherwise be void for want of conformity with certain legal
requirements. They are intended to supply defects, abridge superfluities and curb
certain evils. They are intended to enable persons to carry into effect that which they
have designed or intended, but has failed of expected legal consequence by reason
of some statutory disability or irregularity in their own action. They make valid that
which, before the enactment of the statute was invalid. Their purpose is to give validity
to acts done that would have been invalid under existing laws, as if existing laws have
been complied with. Curative statutes, therefore, by their very essence, are
retroactive."41

The petitioners argue that Ordinance No. 192 is a curative statute as it aims to correct
or cure a defect in the National Building Code, namely, its failure to provide for
adequate guidelines for the construction of fences. They ultimately seek to remedy an
insufficiency in the law. In aiming to cure this insufficiency, the petitioners attempt to
add lacking provisions to the National Building Code. This is not what is contemplated
by curative statutes, which intend to correct irregularities or invalidity in the law. The
petitioners fail to point out any irregular or invalid provision. As such, the assailed
ordinance cannot qualify as curative and retroactive in nature.

At any rate, there appears to be no insufficiency in the National Building Code with
respect to parking provisions in relation to the issue of the respondents. Paragraph
1.16.1, Rule XIX of the Rules and Regulations of the said code requires an educational
institution to provide one parking slot for every ten classrooms. As found by the lower
courts, the respondents provide a total of 76 parking slots for their 80 classrooms and,
thus, had more than sufficiently complied with the law.

Ordinance No. 192, as amended, is, therefore, not a curative statute which may be
applied retroactively.

Separability
Sections 3.1 and 5 of Ordinance No. 192, as amended, are, thus, invalid and cannot
be enforced against the respondents. Nonetheless, "the general rule is that where part
of a statute is void as repugnant to the Constitution, while another part is valid, the
valid portion, if susceptible to being separated from the invalid, may stand and be
enforced."42 Thus, the other sections of the assailed ordinance remain valid and
enforceable.

Conclusion
Considering the invalidity of Sections 3.1 and 5, it is clear that the petitioners were
acting in excess of their jurisdiction in enforcing Ordinance No. 192 against the
respondents. The CA was correct in affirming the decision of the RTC in issuing the
writ of prohibition. The petitioners must permanently desist from enforcing Sections
3.1 and 5 of the assailed ordinance on the respondents' property in Marikina City.

WHEREFORE, the petition is DENIED. The October 2, 2002 Decision of the Regional
Trial Court in SCA Case No. 2000-381-MK is AFFIRMED but MODIFIED to read as
follows:

WHEREFORE, the petition is GRANTED. The writ of prohibition is hereby issued

commanding the respondents to permanently desist from enforcing or implementing
Sections 3.1 and 5 of Ordinance No. 192, Series of 1994, as amended, on the
petitioners' property in question located in Marikina Heights, Marikina, Metro Manila.
No pronouncement as to costs.

SO ORDERED.
 FIRST DIVISION
G.R. No. L-43653, November 29, 1977

RADIO COMMUNICATIONS OF THE PHILIPPINES, INC. (RCPI), Petitioner,

vs.
BOARD OF COMMUNICATIONS and DIEGO MORALES, Respondents.

G.R. No. L-45378, November 29, 1977

RADIO COMMUNICATIONS OF THE PHILIPPINES. INC. (RCPI), Petitioner,
vs.
BOARD OF COMMUNICATIONS and PACIFICO INNOCENCIO, Respondents.

MARTIN, J.,
These two petitions (G.R. No. L-43653 and G.R. No. L-45378) for review by certiorari
of the decisions of the Board of Communications in BC Case No. 75-01-OC, entitled
"Diego T Morales vs. Radio Communications of the Philippines, Inc. (RCPI)" and BC
Case No. 75-08-OC, entitled "Pacifica Innocencio vs. Radio Communications of the
Philippines, Inc. (RCPI)," have been Consolidated as per resolution of this Court dated
March 21, 1977, as they involve the same issue as to whether the Board of
Communications has jurisdiction over claims for damages allegedly suffered by private
respondents for failure to receive telegrams sent thru the petitioner Radio
Communications of the Philippines, Inc., RCPI for short.

In BC Case No. 75-01-OC (G.R. No. L-43653) complainant respondent Diego Morales
claims that while he was in Manila his daughter sent him a telegram on October 15,
1974 from Santiago, Isabela, informing him of the death of his wife, Mrs. Diego T.
Morales. The telegram sent thru the petitioner RCPI however never reached him. He
had to be informed personally about the death of his wife and so to catch up with the
burial of his wife, he had to take the trip by airplane to Isabela. In its answer petitioner
RCPI claims that the telegram sent by respondent was transmitted from Santiago,
lsabela to its Message Center at Cubao, Quezon City but when it was relayed from
Cubao, the radio signal became intermittent making the copy received at Sta. Cruz,
Manila unreadable and unintelligible. Because of the failure of the RCPI to transmit
said telegram to him, respondent allegedly suffered inconvenience and additional
expenses and prays for damages.

In BC Case No. 75-08-OC (G.R. No. L-45378) complainant respondent Pacifico

Innocencio claim that on July 13, 1975 Lourdes Innocencio sent a telegram from
Paniqui, Tarlac, thru the facilities of the petitioner RCPI to him at Barrio Lomot, Cavinti,
Laguna for the Purpose of informing him about the death of their father. The telegram
was never received by Pacifico Innocencio. Inspite of the non-receipt and/or non-
delivery of the message sent to said address, the sender (Lourdes Innocencio has not
been notified about its non-delivery, As a consequence Pacifica Innocencio was not
able to attend the internment of their father at Moncada, Tarlac. Because of the failure
of RCPI to deliver to him said telegram he allegedly was "shocked when he learned
about the death of their father when he visited his hometown Moncada Tarlac on
August 14, 1975," and thus suffered mental anguish and personal inconveniences.
Likewise, he prays for damages.
After hearing. the respondent Board in both cases held that the service rendered by
petitioner was inadequate and unsatisfactory and imposed upon the petitioner in each
case a disciplinary fine of P200 pursuant to Section 21 of Commonwealth Act 146, as
amended, by Presidential Decree No. I and Letter of Implementation No.1.

The main thrust of the argument of petitioner is that respondent Board has no
jurisdiction to entertain and take cognizance of complaints for injury caused by breach
of contractual obligation arising from negligence covered by Article 1170 of the Civil
Code 1 and injury caused by quasi delict or tort liability under Article 2176 of the Civil
Code 2 which according to it should be ventilated in the proper courts of justice and
not in the Board of Communications.

We agree with petitioner RCPI. In one case We have ruled that the Public Service
Commission and its successor in interest, the Board of Communications, "being a
creature of the legislature and not a court, can exercise only such jurisdiction and
powers as are expressly or by necessary implication,. conferred upon it by
statute".3 The functions of the Public Service Commission are limited and
administrative in nature and it has only jurisdiction and power as are expressly or by
necessary implication conferred upon it by statute. 4 As successor in interest of the
Public Service Commission, the Board of Communications exercises the same powers
jurisdiction and functions as that provided for in the Public Service Act for the Public
Service Commission. One of these powers as provided under Section 129 of the
Public Service Act governing the organization of the Specialized Regulatory Board, is
to issue certificate of public convenience. But this power to issue certificate of public
convenience does not carry with it the power of supervision and control over matters
not related to the issuance of certificate of public convenience or in the performance
therewith in a manner suitable to promote public interest. But even assuming that the
respondent Board of Communications has the power or jurisdiction over petitioner in
the exercise of its supervision to insure adequate public service, petitioner cannot be
subjected to payment of fine under Section 21 of the Public Service Act, because this
provision of the law subjects to a fine every public service that violates or falls to
comply with the terms and conditions of any certificate or any orders, decisions or
regulations of the Commission. In the two cases before us petitioner is not being
charged nor investigated for violation of the terms and conditions of its certificate of
public convenience or of any order, decision or regulations of the respondent Board of
Communications. The complaint of respondents in the two case was that they were
allegedly inconvenienced or injured by the failure of the petitioner to transmit to them
telegrams informing them of the deaths of close relatives which according to them
constitute breach of contractual obligation through negligence under the Civil Code.
The charges however, do not necessarily involve petitioners failure to comply with its
certificate of public convenience or any order, decision or regulation of respondent
Board of Communication. It is clear from the record that petitioner has not been charge
of any violation or failure to comply with the terms and condition of its certificates of
public convenience or of any order, decision or regulation of the respondent Board.
The charge does not relate to the management of the facilities and system of
transmission of messages by petitioner in accordance with its certificate of public
convenience. If in the two cases before Us complainants Diego Morales and Pacifica
Innocencio allegedly suffered injury due to petitioner's breach of contractual obligation
arising from negligence, the proper forum for them to ventilate their grievances for
possible recovery of damages against petitioner should be in the courts and not in the
respondent Board of Communications. Much less can it impose the disciplinary fine of
P200 upon the petitioner. In Francisco Santiago vs. RCPI (G.R. No. L-29236)
and Constancio Langan vs. RCPI (G.R. No. L-29247), this Court speaking thru Justice
Enrique Fernando, ruled:
There can be no justification then for the Public Service Commission (now the
Board of Communications as successor in interest) imposing the fines in these two
petitions. The law cannot be any clearer . The only power it possessed over radio
companies as noted was to fix rates It could not take to task a radio company for
an negligence or misfeasance. It was not vested with such authority. That it did
then in these two petitions lacked the impress of validity.
In the face of the provision itself, it is rather apparent that the Public Service
Commission lacked the required power to proceed against petitioner. There is
nothing in Section 21 thereof which empowers it to impose a fine that calls for a
different conclusion.

WHEREFORE. both decisions of respondent Board of Communications in BC Case

No. 75-01 OC and BC Case No. 75- 08-0C are hereby reversed, set aside, declared
null and void for lack of jurisdiction to take cognizance of both cases. Without costs.

SO ORDERED.
 EN BANC
G.R. No. L-9430, June 29, 1957

EMILIO SUNTAY Y AGUINALDO, Petitioner,

vs.
THE PEOPLE OF THE PHILIPPINES, THE HONORABLE NICASIO YATCO, as
Judge of the Court of First Instance of Rizal, Quezon City Branch V, and THE
HONORABLE CARLOS P. GARCIA, as Secretary for Foreign
Affairs, Respondents.

PADILLA, J.:
This is a petition for a writ of certiorari to annul an order of the Court of First
Instance of Quezon City directing —
. . . the National Bureau of Investigation and the Department of Foreign Affairs
for them to take proper steps in order that the accused, Emilio Suntay y
Aguinaldo, who is alleged to be in the United States, may be brought back to the
Philippines, so that he may be dealt with in accordance with law, (Exhibit D)
and of prohibition to enjoin the Secretary for Foreign Affairs from cancelling the
petitioner's passport without previous hearing.
On 26 June 1954, Dr. Antonio Nubla, father of Alicia Nubla, a minor of 16 years, filed
a verified complaint against Emilio Suntay in the Office of the City Attorney of Quezon
City, as follows:
On or about June 21, 1954, the accused took Alicia Nubla from St. Paul's
Colleges in Quezon City with lewd design and took her to somewhere near the
U.P. compound in Diliman, Quezon City and was then able to have carnal
knowledge of her. Alicia Nubla is a minor of 16 years.

On 15 December 1954, after an investigation, an Assistant City Attorney

recommended to the City Attorney of Quezon City that the complaint be dismissed for
lack of merit. On 23 December 1954 attorney for the complainant addressed a letter
to the City Attorney of Quezon City wherein he took exception to the recommendation
of the Assistant City Attorney referred to and urged that a complaint for seduction be
filed against the herein petitioner.

On 10 January 1955 the petitioner applied for and was granted a passport by the
Department of Foreign Affairs (No. 5981 [A39184]). On 20 January 1955 the petitioner
left the Philippines for San Francisco, California, U.S.A., where he is at present
enrolled in school. On 31 January 1955 the offended girl subscribed and swore to a
complaint charging the petitioner with seduction which was filed in the Court of First
Instance of Quezon City after preliminary investigation had been conducted (crim.
case No. Q-1596, Exhibit B). On 9 February 1955 the private prosecutor filed a motion
praying the Court to issue an order "directing such government agencies as may be
concerned, particularly the National Bureau of Investigation and the Department of
Foreign Affairs, for the purpose of having the accused brought back to the Philippines
so that he may be dealt with in accordance with law." (Exhibit C.) On 10 February 1955
the Court granted the motion (Exhibit D). On 7 March 1955 the respondent Secretary
cabled the Ambassador to the United States instructing him to order the Consul
General in San Francisco to cancel the passport issued to the petitioner and to compel
him to return to the Philippines to answer the criminal charges against him. "The
Embassy was likewise directed to make representation with the State Department that
Emilio Suntay's presence outside the Philippines is considered detrimental to the best
interest of this Government, that his passport has been withdrawn, and that he is not
considered under the protection of the Philippines while abroad." (Exhibit E.) However,
this order was not implemented or carried out in view of the commencement of this
proceedings in order that the issues raised may be judicially resolved. On 5 July 1955
counsel for the petitioner wrote to the respondent Secretary requesting that the action
taken by him be reconsidered (Exhibit F), and filed in the criminal case a motion
praying that the respondent Court reconsider its order of 10 February 1955 (Exhibit
G). On 7 July 1955 the respondent Secretary denied counsel's request (Exhibit H) and
on 15 July 1955 the Court denied the motion for reconsideration (Exhibit I). Hence this
petition.

The petitioner contends that as the order of the respondent Court directing the
Department of Foreign Affairs "to take proper steps in order that the" petitioner "may
be brought back to the Philippines, so that he may be brought back to the Philippines,
so that he may default with in accordance with law," may be carried out only "through
the cancellation of his passport," the said order is illegal because "while a Court may
review the action of the Secretary of Foreign Affairs in cancelling a passport and grant
relief when the Secretary's discretion is abused, the court cannot, in the first instance,
take the discretionary power away from the Secretary and itself order a passport to be
cancelled."

The petitioner contends that as the order of the respondent Court directing the
department of Foreign Affairs "to take proper steps in order that the" petitioner "may
be brought back to the Philippines, so that he may be dealt with in accordance with
law," may be carried out only "through the cancellation of his passport," the said order
is illegal because 'while a Court may review the action of the Secretary of Foreign
Affairs in cancelling a passport and grant relief when the Secretary's discretion is
abused, the court cannot, in the first instance, take the discretionary power away from
the Secretary and itself order a passport to be cancelled." The petitioner further
contends that while the Secretary for Foreign Affairs has discretion in the cancellation
of passports, "such discretion cannot be exercised until after hearing," because the
right to travel or stay abroad is a personal liberty within the meaning and protection of
the Constitution and hence he cannot be deprived of such liberty without due process
of law.

The petitioner's contention cannot be sustained. The petitioner is charged with

seduction. And the order of the respondent Court directing the Department of Foreign
Affairs "to take proper steps in order that the accused . . . may be brought back to the
Philippines, so that he may be dealt with in accordance with law," is not beyond or in
excess of its jurisdiction.
When by law jurisdiction is conferred on a court or judicial officer, all auxiliary
writs, processes and other means necessary to carry it into effect may be
employed by such court or officer; and if the procedure to be followed in the
exercise of such jurisdiction is not specifically pointed out by these rules, any
suitable process or mode of proceeding may be adopted which appears most
conformable to the spirit of said rules. (Section 6, Rule 124.)

Moreover, the respondent Court did not specify what step the respondent Secretary
must take to compel the petitioner to return to the Philippines to answer the criminal
charge preferred against him.
Section 25, Executive Order No. 1, series of 1946, 42 Off. Gaz, 1400, prescribing rules
and regulations for the grant and issuance of passports, provides that —
The Secretary of Foreign Affairs as well as ally diplomatic or consular officer duly
authorized by him, is authorized, in his discretion, to refuse to issue a passport
for use only in certain countries, to withdraw or cancel a passport already issued,
and to withdraw a passport for the purpose its validity or use in certain countries.
(Emphasis supplied.)

True, the discretion granted, to the Secretary for Foreign Affairs to withdraw or cancel
a passport already issued may not be exercised at whim. But here the petitioner was
hailed to Court to answer a criminal charge for seduction and although at first all
Assistant City Attorney recommended the dismissal of the complaint previously
subscribed and sworn to by the father of the offended girl, yet the petitioner knew that
no final action had been taken by the City Attorney of Quezon City as the case was
still under study. And as the Solicitor General puts it, "His suddenly leaving the country
in such a convenient time, can reasonably be interpreted to mean as a deliberate
attemption his part to flee from justice, and, therefore, he cannot now be heard to
complain if the strong arm of the law should join together to bring him back to justice."
In issuing the order in question, the respondent Secretary was convinced that a
miscarriage of justice would result by his inaction and as he issued it in the exercise
of his sound discretion, he cannot be enjoined from carrying it out.

Counsel for the petitioner insists that his client should have been granted a "quasi-
judicial hearing" by the respondent Secretary before withdrawing or cancelling the
passport issued to him. Hearing would have been proper and necessary if the reason
for the withdrawal or cancellation of the passport were not clear but doubtful. But where
the holder of a passport is facing a criminal a charge in our courts and left the country
to evade criminal prosecution, the Secretary for Foreign Affairs, in the exercise of his
discretion to revoke a passport already issued, cannot be held to have acted
whimsically or capriciously in withdrawing and cancelling such passport. Due process
does not necessarily mean or require a hearing. When discretion is exercised by an
officer vested with it upon an undisputed fact, such as the filing of a serious criminal
charge against the passport holder, hearing maybe dispensed with by such officer as
a prerequisite to the cancellation of his passport; lack of such hearing does not violate
the due process of law clause of the Constitution; and the exercise of the discretion
vested in him cannot be deemed whimsical and capricious of because of the absence
of such hearing. If hearing should always be held in order to comply with the due
process of clause of the Constitution, then a writ of preliminary injunction issued ex
parte would be violative of the said clause.

In the cases of Bauer vs. Acheson, 106 F. Supp. 445; Nathan, vs. Dulles, 129 F. Supp.
951; and Schachtman vs. Dulles No. 12406, 23 June 1955, all decided by the States
Court of Appeals for the district of Columbia, cited by the petitioner, the revocation of
a passport already issued or refusal to issue a passport applied for, was on the vague
reason that the continued possession or the issuance thereof would be contrary to the
best interest of the United States.

The petition is denied, with costs against the petitioner.

 SPECIAL SECOND DIVISION
G.R. No. 131457, August 19, 1999

HON. CARLOS O. FORTICH, PROVINCIAL GOVERNOR OF BUKIDNON, HON.

REY B. BAULA, MUNICIPAL MAYOR OF SUMILAO, BUKIDNON, NQSR
MANAGEMENT AND DEVELOPMENT CORPORATION, Petitioners,
vs.
HON. RENATO C. CORONA, DEPUTY EXECUTIVE SECRETARY, HON.
ERNESTO D. GARILAO, SECRETARY OF THE DEPARTMENT OF AGRARIAN
REFORM, Respondents.

RESOLUTION

YNARES-SANTIAGO, J.:
This resolves the pending incidents before us, namely, respondents and intervenors
separate motions for reconsideration of our Resolution dated November 17, 1998, as
well as their motions to refer this case to this Court en banc.

Respondents and intervenors jointly argue, in fine, that our Resolution dated
November 17, 1998, wherein we voted two-two on the separate motions for
reconsideration of our earlier Decision of April 24, 1998, as a result of which the
Decision was deemed affirmed, did not effectively resolve the said motions for
reconsideration inasmuch as the matter should have been referred to the Court
sitting en banc, pursuant to Article VIII, Section 4(3) of the Constitution. Respondents
and intervenors also assail our Resolution dated January 27, 1999, wherein we noted
without action the intervenors Motion For Reconsideration With Motion To Refer The
Matter To The Court En Banc filed on December 3, 1998, on the following
considerations, to wit:
the movants have no legal personality to further seek redress before the Court
after their motion for leave to intervene in this case was denied in the April 24,
1998 Decision. Their subsequent motion for reconsideration of the said decision,
with a prayer to resolve the motion to the Court En Banc, was also denied in the
November 17, 1998 Resolution of the Court. Besides, their aforesaid motion of
December 3, 1998 is in the nature of a second motion for reconsideration which is
a forbidden motion (Section 2, Rule 52 in relation to Section 4, Rule 56 of the 1997
Rules of Civil Procedure). The impropriety of movants December 3, 1998 motion
becomes all the more glaring considering that all the respondents in this case did
not anymore join them (movants) in seeking a reconsideration of the November
17, 1998 Resolution.[1]

Subsequently, respondents, through the Office of the Solicitor General, filed their
Motion For Reconsideration Of The Resolution Dated November 17, 1998 And For
Referral Of The Case To This Honorable Court En Banc (With Urgent Prayer For
Issuance Of A Restraining Order) on December 3, 1998, accompanied by a
Manifestation and Motion[2] and a copy of the Registered Mail Bill[3]evidencing filing of
the said motion for reconsideration to this Court by registered mail.

In their respective motions for reconsideration, both respondents and intervenors pray
that this case be referred to this Court en banc. They contend that inasmuch as their
earlier motions for reconsideration (of the Decision dated April 24, 1998) were resolved
by a vote of two-two, the required number to carry a decision, i.e., three, was not
met. Consequently, the case should be referred to and be decided by this Court en
banc, relying on the following constitutional provision:
Cases or matters heard by a division shall be decided or resolved with the concurrence
of a majority of the Members who actually took part in the deliberations on the issues
in the case and voted thereon, and in no case without the concurrence of at least three
of such Members. When the required number is not obtained, the case shall be
decided en banc: Provided, that no doctrine or principle of law laid down by the Court
in a decision rendered en banc or in division may be modified or reversed except by
the Court sitting en banc.[4]

A careful reading of the above constitutional provision, however, reveals the intention
of the framers to draw a distinction between cases, on the one hand, and matters, on
the other hand, such that casesare decided while matters, which include motions, are
resolved. Otherwise put, the word decided must refer to cases; while the word
resolved must refer to matters, applying the rule of reddendo singula singulis. This is
true not only in the interpretation of the above-quoted Article VIII, Section 4(3), but
also of the other provisions of the Constitution where these words appear.[5]

With the aforesaid rule of construction in mind, it is clear that only cases are referred
to the Court en banc for decision whenever the required number of votes is not
obtained. Conversely, the rule does not apply where, as in this case, the required three
votes is not obtained in the resolution of a motion for reconsideration. Hence, the
second sentence of the aforequoted provision speaks only of case and not matter. The
reason is simple. The above-quoted Article VIII, Section 4(3) pertains to the disposition
of cases by a division. If there is a tie in the voting, there is no decision. The only way
to dispose of the case then is to refer it to the Court en banc. On the other hand, if a
case has already been decided by the division and the losing party files a motion for
reconsideration, the failure of the division to resolve the motion because of a tie in the
voting does not leave the case undecided. There is still the decision which must stand
in view of the failure of the members of the division to muster the necessary vote for
its reconsideration. Quite plainly, if the voting results in a tie, the motion for
reconsideration is lost. The assailed decision is not reconsidered and must therefore
be deemed affirmed. Such was the ruling of this Court in the Resolution of November
17, 1998.

It is the movants further contention in support of their plea for the referral of this case
to the Court en banc that the issues submitted in their separate motions are of first
impression. In the opinion penned by Mr. Justice Antonio M. Martinez during the
resolution of the motions for reconsideration on November 17, 1998, the following was
expressed:
Regrettably, the issues presented before us by the movants are matters of no
extraordinary import to merit the attention of the Court en banc. Specifically, the
issue of whether or not the power of the local government units to reclassify lands
is subject to the approval of the DAR is no longer novel, this having been decided
by this Court in the case of Province of Camarines Sur, et al. vs. Court of
Appealswherein we held that local government units need not obtain the approval
of the DAR to convert or reclassify lands from agricultural to non-agricultural
use. The dispositive portion of the Decision in the aforecited case states:
WHEREFORE, the petition is GRANTED and the questioned decision of the
Court of Appeals is set aside insofar as it (a) nullifies the trial courts order
allowing the Province of Camarines Sur to take possession of private respondents
 property; (b) orders the trial court to suspend the expropriation proceedings; and
(c) requires the Province of Camarines Sur to obtain the approval of the
Department of Agrarian Reform to convert or reclassify private respondents
property from agricultural to non-agricultural use.
xxx xxx xxx (Emphasis supplied)

Moreover, the Decision sought to be reconsidered was arrived at by a unanimous vote

of all five (5) members of the Second Division of this Court. Stated otherwise, this
Second Division is of the opinion that the matters raised by movants are nothing new
and do not deserve the consideration of the Court en banc. Thus, the participation of
the full Court in the resolution of movants motions for reconsideration would be
inappropriate.[6]

The contention, therefore, that our Resolution of November 17, 1998 did not dispose
of the earlier motions for reconsideration of the Decision dated April 24, 1998 is
flawed. Consequently, the present motions for reconsideration necessarily partake of
the nature of a second motion for reconsideration which, according to the clear and
unambiguous language of Rule 56, Section 4, in relation to Rule 52, Section 2, of the
1997 Rules of Civil Procedure, is prohibited.

True, there are exceptional cases when this Court may entertain a second motion for
reconsideration, such as where there are extraordinarily persuasive reasons. Even
then, we have ruled that such second motions for reconsideration must be filed with
express leave of court first obtained.[7] In this case, not only did movants fail to ask for
prior leave of court, but more importantly, they have been unable to show that there
are exceptional reasons for us to give due course to their second motions for
reconsideration. Stripped of the arguments for referral of this incident to the Court en
banc, the motions subject of this resolution are nothing more but rehashes of the
motions for reconsideration which have been denied in the Resolution of November
17, 1998. To be sure, the allegations contained therein have already been raised
before and passed upon by this Court in the said Resolution.

The crux of the controversy is the validity of the Win-Win Resolution dated November
7, 1997. We maintain that the same is void and of no legal effect considering that the
March 29, 1996 decision of the Office of the President had already become final and
executory even prior to the filing of the motion for reconsideration which became the
basis of the said Win-Win Resolution. This ruling, quite understandably, sparked a
litany of protestations on the part of respondents and intervenors including entreaties
for a liberal interpretation of the rules. The sentiment was that notwithstanding its
importance and far-reaching effects, the case was disposed of on a technicality. The
situation, however, is not as simple as what the movants purport it to be. While it may
be true that on its face the nullification of the Win-Win Resolution was grounded on a
procedural rule pertaining to the reglementary period to appeal or move for
reconsideration, the underlying consideration therefor was the protection of the
substantive rights of petitioners. The succinct words of Mr. Justice Artemio V.
Panganiban are quoted in the November 17, 1998 opinion of Mr. Justice
Martinez, viz: Just as a losing party has the right to file an appeal within the prescribed
period, the winning party also has the correlative right to enjoy the finality of the
resolution of his/her case.[8]
In other words, the finality of the March 29, 1996 OP Decision accordingly vested
appurtenant rights to the land in dispute on petitioners as well as on the people of
Bukidnon and other parts of the country who stand to be benefited by the development
of the property. The issue in this case, therefore, is not a question of technicality but
of substance and merit.[9]

Before finally disposing of these pending matters, we feel it necessary to rule once
and for all on the legal standing of intervenors in this case. In their present motions,
intervenors insist that they are real parties in interest inasmuch as they have already
been issued certificates of land ownership award, or CLOAs, and that while they are
seasonal farmworkers at the plantation, they have been identified by the DAR as
qualified beneficiaries of the property. These arguments are, however, nothing new as
in fact they have already been raised in intervenors earlier motion for reconsideration
of our April 24, 1998 Decision. Again as expressed in the opinion of Mr. Justice
Martinez, intervenors, who are admittedly not regular but seasonal farmworkers, have
no legal or actual and substantive interest over the subject land inasmuch as they
have no right to own the land. Rather, their right is limited only to a just share of the
fruits of the land.[10] Moreover, the Win-Win Resolution itself states that the qualified
beneficiaries have yet to be carefully and meticulously determined by the Department
of Agrarian Reform.[11] Absent any definitive finding of the Department of Agrarian
Reform, intervenors cannot as yet be deemed vested with sufficient interest in the
controversy as to be qualified to intervene in this case. Likewise, the issuance of the
CLOA's to them does not grant them the requisite standing in view of the nullity of the
Win-Win Resolution. No legal rights can emanate from a resolution that is null and
void.

WHEREFORE, based on the foregoing, the following incidents, namely: intervenors

Motion For Reconsideration With Motion To Refer The Matter To The Court En Banc,
dated December 3, 1998; respondents Motion For Reconsideration Of The Resolution
Dated November 17, 1998 And For Referral Of The Case To This Honorable Court En
Banc (With Urgent Prayer For Issuance Of A Restraining Order), dated December 2,
1998; and intervenors Urgent Omnibus Motion For The Supreme Court Sitting En
Banc To Annul The Second Divisions Resolution Dated 27 January 1999 And
Immediately Resolve The 28 May 1998 Motion For Reconsideration Filed By The
Intervenors, dated March 2, 1999; are all DENIED with FINALITY. No further motion,
pleading, or paper will be entertained in this case.

SO ORDERED.
 SECOND DIVISION
G.R. No. 178564, January 15, 2014
INC. SHIPMANAGEMENT, INC., CAPTAIN SIGFREDO E. MONTERROYO
AND/OR INTERORIENT NAVIGATION LIMITED, Petitioners,
vs.
ALEXANDER L. MORADAS, Respondent.

DECISION

PERLAS-BERNABE, J.:
Assailed in this petition for review on Certiorari1 are the Decision2 dated October 31,
2006 and Resolution3 dated June 25, 2007 of the Court of Appeals (CA) in CA-G.R.
SP No. 84769 which granted respondent Alexander L. Moradas's (respondent) claim
to permanent total disability benefits in the amount of US 60,000.00, or its peso
equivalent, and attorney's fees.

The Facts
On July 17, 2000, respondent was employed as wiper for the vessel MV Commander
(vessel) by petitioner INC Shipmanagement, Inc. for its principal, petitioner Interorient
Navigation, Ltd. (petitioners), for a period of 10 months, with a basic monthly salary of
US 360.00, plus benefits.4

On October 13, 2000, respondent claimed that while he was disposing of the garbage
in the incinerator room of the vessel, certain chemicals splashed all over his body
because of an explosion.5 He was sent to the Burns Unit of the Prince of Wales
Hospital on the same day wherein he was found to have suffered deep burns.
Eventually, upon his own request, respondent was sent home. 6

On October 21, 2000, he was admitted to the St. Luke’s Medical

Center.7 Subsequently, he was diagnosed to have sustained "thermal burns, upper
and lower extremities and abdomen, 2º-3º, 11%"8 for which he underwent
debridement. He was referred to a physical therapist for his subsequent debridement
through hydrotherapy. On November 10, 2000, the attending physician, Dr. Natalio G.
Alegre II, reported that the respondent’s thermal burns were healing well and that they
were estimated to fully heal within a period of 3 to 4 months. 9

Claiming that the burns rendered him permanently incapable of working again as a
seaman, respondent demanded10 for the payment of his full disability benefits under
Section 20 (B) in relation to Sections 30 and 30-A of the Philippine Overseas
Employment Agency (POEA) Standard Employment Contract (POEA-SEC), in the
amount of US$60,000.00, which petitioners refused to heed. 11 Thus, respondent filed
a complaint against petitioners for the same, seeking as well moral and exemplary
damages, including attorney’s fees.

In their position paper,12 petitioners denied respondent’s claims, contending that his
injury was self-inflicted and, hence, not compensable under Section 20 (D) of the
POEA-SEC. They denied that the vessel’s incinerator exploded and claimed that
respondent burned himself by pouring paint thinner on his overalls and thereafter set
himself on fire. They averred that he was led to commit such act after he was caught
last October 10, 200013 stealing the vessel’s supplies during a routine security
inspection conducted by Captain Bodo Wirth (Captain Wirth) where respondent was
informed that he was to be dismissed.14 They also stated that just before they
discovered respondent to be burning, the vessel’s engine room became
flooded.15 They ascribed the flooding incident to respondent, having been seen by
fellow crew members standing at the railing around the portside seachest and looking
at it16 and that when the bilge level alarm sounded, he was seen disappearing up to
the boiler deck leaving small patches of water on the floor, on the steps, and on the
deck where he had been.17 In support thereof, petitioners submitted the report of the
ship captain on the flooding as extracted from the vessel’s deck logbook 18 as well as
the affidavits and statements executed by the vessel’s officers and crew members
relative to the flooding and burning incidents. Based on the said affidavits and
statements, the vessel’s bosun, Antonio Gile (Gile), attested that he saw respondent
go to the paint room and there soak his hands in a can full of thinner. Respondent then
proceeded to the incinerator door where he was set ablaze. Gile further pointed out
that there was no fire in the incinerator at that time. 19 Also, Chief Officer Antonino S.
Bejada (Bejada) testified that prior to the burning incident, he had ordered an ordinary
seaman who had been burning deck waste in the incinerator to extinguish the fire with
water and close up the incinerator door because of bad weather conditions. Bejada
then checked the incinerator after the burning incident and found unburnt cardboard
cartons inside with no sign of explosion and that the steel plates surrounding it were
cool to the touch. He also noticed that the respondent’s overalls had patches of green
paint on the arms and body and smelled strongly of thinner. An open paint tin can was
found near the place of the incident and a cigarette lighter lying beside
respondent20 which oiler Edgardo Israel confirmed was borrowed from him even
though he knew that the former did not smoke. 21 Finally, petitioners denied
respondent’s claim for damages and attorney’s fees for lack of factual and legal
bases.22

In his Reply to the position paper,23 respondent denied burning himself, contending
that such act was contrary to human nature and logic and that there was no showing
that he was mentally unfit.24 Further, he posited that the affidavits and statements
submitted by the vessel’s officers and crew members have no probative value for
being mere hearsay and self-serving.25 He equally insisted on his claim for moral and
exemplary damages and attorney’s fees.26

Meanwhile, or on February 29, 2001, petitioner Captain Sigfredo E. Monterroyo filed

a complaint27 for disciplinary action against respondent before the POEA for his
various infractions committed on board the vessel, namely: (a) act of dishonesty for
stealing the vessel’s supplies on October 10, 2000; (b) act of sabotage committed on
October 13, 2000; and (c) grave misconduct for inflicting the injury to himself. 28

The LA Ruling
In a Decision29 dated April 15, 2003, the Labor Arbiter (LA) ruled in favor of petitioners,
dismissing respondent’s complaint for lack of merit. The LA held that respondent’s
injury was self-inflicted and that no incinerator explosion occurred that would have
caused the latter’s injuries.30] The LA gave more credence to the corroborating
testimonies of the petitioners’ witnesses that respondent’s botched attempts to
sabotage the vessel and steal its supplies may have motivated him to inflict injuries to
himself.31 Lastly, the LA denied respondent’s claim for moral and exemplary damages
as well as attorney’s fees since he failed to prove any evident bad faith or malice on
petitioners’ part.32

The NLRC Ruling

On appeal, the National Labor Relations Commission (NLRC), in a Decision33 dated
January 30, 2004, sustained the findings of the LA and held, inter alia, that while some
of the statements and affidavits of the vessel’s officers and crew members were not
notarized, the corroborating testimonial evidence must be taken as a whole. In this
accord, it gave due credence to the questioned evidence absent any showing that the
petitioners were motivated by ill will.34 Also, it pointed out that respondent’s mental or
physical fitness was not at issue since he was motivated to inflict injury to himself for
reasons related to his impending discharge and not because of his disposition. 35
Respondent filed a motion for reconsideration but the same was denied in a
Resolution36 dated March 31, 2004. Dissatisfied, he filed a petition for certiorari before
the CA.

The CA Ruling
On October 31, 2006, the CA rendered the assailed Decision,37 holding that grave
abuse of discretion tainted the NLRC ruling.

It found no logical and causal connection between the act of pilferage as well as the
act of causing the flooding in the engine room and the conclusion that respondent’s
injury was self-inflicted. It added that it was contrary to human nature and experience
for respondent to burn himself.38 Further, the CA noted that the location of the burns
on the different parts of respondent’s body was more consistent with respondent’s
assertion that certain chemicals splashed all over his body rather than petitioners’
theory of self-inflicted injury.39 Moreover, it pointed out that no evidence was presented
to show that respondent had no business near the engine room.40 In the same vein, it
observed that the mere finding of a cigarette lighter was inadequate to justify the
conclusion that he burned himself.41 Consequently, for petitioners’ failure to discharge
the burden of proving that respondent’s injury was directly attributable to him as
required under Section 20 (D) of the POEA-SEC, the CA found that the NLRC gravely
abused its discretion and, thus, held petitioners liable to pay respondent permanent
total disability benefits in the amount of US$60,000.00, or its peso equivalent. 42
On the other hand, respondent’s claims for moral and exemplary damages were
denied for lack of basis but the CA awarded him attorney’s fees in the amount of
₱50,000.00.43

Aggrieved, petitioners moved for reconsideration which was, however, denied in a

Resolution44 dated June 25, 2007. Hence, this petition.

The Issue Before The Court

The essential issue in this case is whether or not the CA erred in finding that the NLRC
gravely abused its discretion when it denied respondent’s claim for disability benefits.

The Court’s Ruling

The petition is meritorious.
A. Preliminary Matters: Framework of Review and Governing Rules
At the outset, the Court deems it proper to elucidate on the framework in which the
review of this case had been conducted, in conjunction with the applicable governing
rules to analyze its substantive merits.

The Court’s jurisdiction in cases brought before it from the CA via Rule 45 of the Rules
of Court is generally limited to reviewing errors of law. The Court is not the proper
venue to consider a factual issue as it is not a trier of facts. This rule, however, is not
ironclad and a departure therefrom may be warranted where the findings of fact of the
CA are contrary to the findings and conclusions of the NLRC and LA, as in this case.
In this regard, there is therefore a need to review the records to determine which of
them should be preferred as more conformable to evidentiary facts. 45

With respect to the applicable rules, it is doctrinal that the entitlement of seamen on
overseas work to disability benefits"is a matter governed, not only by medical findings,
but by law and by contract. The material statutory provisions are Articles 191 to 193
under Chapter VI (Disability Benefits) of the Labor Code, in relation [to] Rule X of the
Rules and Regulations Implementing Book IV of the Labor Code. By contract, the
POEA-SEC, as provided under Department Order No. 4, series of 2000 of the
Department of Labor and Employment, and the parties’ Collective Bargaining
Agreement bind the seaman and his employer to each other." 46

In the foregoing light, the Court observes that respondent executed his contract of
employment on July 17, 2000,47incorporating therein the terms and conditions of the
2000 POEA-SEC which took effect on June 25, 2000. However, since the
implementation of the provisions of the foregoing 2000 POEA-SEC was temporarily
suspended48by the Court on September 11, 2000, particularly Section 20, paragraphs
(A), (B), and (D) thereof, and was lifted only on June 5, 2002, through POEA
Memorandum Circular No. 2, series of 2002,49 the determination of respondent’s
entitlement to the disability benefits should be resolved under the provisions of the
1996 POEA-SEC as it was, effectively, the governing circular at the time respondent’s
employment contract was executed.

The prevailing rule under Section 20 (B) of the 1996 POEA-SEC on compensation and
benefits for injury or illness was that an employer shall be liable for the injury or illness
suffered by a seafarer during the term of his contract. There was no need to show that
such injury was work-related except that it must be proven to have been contracted
during the term of the contract. The rule, however, is not absolute and the employer
may be exempt from liability if he can successfully prove that the cause of the
seaman’s injury was directly attributable to his deliberate or willful act as provided
under Section 20 (D) thereof, to wit:
D. No compensation shall be payable in respect of any injury, incapacity, disability
or death of the seafarer resulting from his willful or criminal act, provided however,
that the employer can prove that such injury, incapacity, disability or death is
directly attributable to seafarer.

Hence, the onus probandi falls on the petitioners herein to establish or substantiate
their claim that the respondent’s injury was caused by his willful act with the requisite
quantum of evidence. In labor cases, as in other administrative proceedings, only
substantial evidence or such relevant evidence as a reasonable mind might accept as
sufficient to support a conclusion is required.50 To note, considering that substantial
evidence is an evidentiary threshold, the Court, on exceptional cases, may assess the
factual determinations made by the NLRC in a particular case. In Career Philippines
Shipmanagement, Inc. v. Serna,51 the Court expressed the following view:
Accordingly, we do not re-examine conflicting evidence, re-evaluate the credibility
of witnesses, or substitute the findings of fact of the NLRC, an administrative body
that has expertise in its specialized field. Nor do we substitute our "own judgment
for that of the tribunal in determining where the weight of evidence lies or what
evidence is credible." The factual findings of the NLRC, when affirmed by the CA,
are generally conclusive on this Court.
Nevertheless, there are exceptional cases where we, in the exercise of our
discretionary appellate jurisdiction may be urged to look into factual issues raised
in a Rule 45 petition. For instance, when
In view of which POEA Memorandum Circular No. 11, series of 2000, issued on
12 September 2000 enforcing the Temporary restraining Order issued by the
Supreme Court in a Resolution dated 11 September 2000, on the implementation
of the abovementioned provision is hereby Rescinded.
xxxx
the petitioner persuasively alleges that there is insufficient or insubstantial
evidence on record to support the factual findings of the tribunal or court a quo ,
as Section 5, Rule 133 of the Rules of Court states in express terms that in cases
filed before administrative or quasi-judicial bodies, a fact may be deemed
established only if supported by substantial evidence.52 (Emphases supplied;
citations omitted)
The evident conflict between the NLRC’s and CA’s factual findings as shown in the
records of this case prompts the Court to sift through their respective factual
determinations if only to determine if the NLRC committed grave abuse of
discretion in reaching its disposition, keeping in mind that the latter’s assessment
should only meet the threshold of substantial evidence.

B. Application
In view of the above-discussed considerations and after a judicious scrutiny of the
facts on record, the Court holds that the CA erred in attributing grave abuse of
discretion on the part of the NLRC in affirming the LA’s dismissal of respondent’s
complaint. This is based on the Court’s observation that the NLRC had cogent legal
bases to conclude that petitioners have successfully discharged the burden of proving
by substantial evidence that respondent’s injury was directly attributable to himself.
The reasons therefor are as follows:

First, records bear out circumstances which all lead to the reasonable conclusion that
respondent was responsible for the flooding and burning incidents.
Records show that the LA and NLRC gave credence to the corroborating testimonies
of the crewmen pointing to respondent as the person who deliberately caused the
flooding incident. In particular, respondent was seen alone in the vicinity of the portside
seachest which cover was found to have been intentionally removed and thereby
caused the flooding. He was also seen disappearing up to the boiler deck just when
the bilge level alarm sounded with patches of water left on the floor plates and on the
stairways. Respondent neither denied nor proffered any explanation on the foregoing
claims especially when all of his fellow engine room staff, except him, responded to
the alarm and helped pump out the water in the engine room.53 As to the burning,
respondent failed to successfully controvert Gile’s claim that he saw the former go to
the paint room, soak his hands in a can full of thinner and proceed to the incinerator
door where he was set ablaze. In fact, respondent’s burnt overalls conform to the
aforesaid claim as it had green paint on the arms and body and smelled strongly of
thinner, while the open paint tin can that was found in the vicinity contained solvent
which had the same green color found on the overalls.

Second, respondent’s version that the burning was caused by an accident is hardly
supported by the evidence on record. The purported explosion in the incinerator was
belied by Gile who also claimed that there was no fire in the incinerator room at the
time respondent got burned. This was corroborated by Bejada who testified having
ordered an ordinary seaman that was burning deck waste in the incinerator early that
day to extinguish the fire with water and close up the incinerator door because of bad
weather conditions. Accordingly, an inspection of the incinerator after the incident
showed that there were unburnt cardboard cartons found inside with no sign of
explosion and the steel plates surrounding it were cool to the touch. Further, as aptly
discerned by the LA, if there was really an incinerator explosion, then respondent’s
injury would have been more serious.54

Respondent debunked Gile’s claim by merely asserting in his Answer and Rejoinder
before the POEA that the latter could not have been in the room at the time he got
burned as he was not the first person to rescue him and concluded that he could not
have soaked his hands in a can full of thinner considering the extent of damage caused
to his hands.55 This argument is riddled with serious flaws: Gile could have been the
second man in, and still personally know the matters he has alleged. Also, that
respondent soaked his hands in thinner is not denied by the fact that the greatest
damage was not caused to it since the fire could have started at some part of his body
considering that his overalls also had flammable chemicals. Reason also dictates that
he could have extinguished the fire on his hands sooner than the other parts of his
body. In any event, the medical records of respondent, particularly the report 56 issued
by the Prince of Wales Hospital Burns Surgery, show that he suffered from "deep burn
area" that was distributed over his left upper limb, right hand, left flank and both
thighs.57 To assert that respondent’s hands should have suffered the greatest damage
is plainly argumentative and records are bereft of showing as to the exact degree of
burn suffered for each part.

To add, Bejada’s statement that respondent’s burnt overalls had patches of green
paint on the arms and body and strongly smelled of thinner conforms with Gile’s claim
that he soaked his hands in a can of thinner before approaching the incinerator (thinner
may be found in a paint room). Such fact further fortifies petitioners’ assertion that his
injury was self-inflicted as a prudent man would not dispose of garbage in the
incinerator under such condition.

And if only to placate other doubts, the CA’s finding that "some chemicals splashed
[on respondent’s] body"58 should not automatically mean that the "splashing" was
caused by pure accident. It is equally reasonable to conclude that the "splashing" – as
may be inferred from both the LA’s and NLRC"s findings – was a by-product of
respondent’s botched sabotage attempt.

While respondent contended that the affidavits and statements of the vessel’s officers
and his fellow crew members should not be given probative value as they were biased,
self-serving, and mere hearsay, he nonetheless failed to present any evidence to
substantiate his own theory. Besides, as correctly pointed out by the NLRC, the
corroborating affidavits and statements of the vessel’s officers and crew members
must be taken as a whole and cannot just be perfunctorily dismissed as self-serving
absent any showing that they were lying when they made the statements therein. 59
Third, petitioners’ theory that respondent’s burns were self-inflicted gains credence
through the existence of motive.

At this juncture, the Court finds it important to examine the existence of motive in this
case since no one actually saw what transpired in the incinerator room. To this end,
the confluence of the circumstances antecedent to the burning should be examined in
conjunction with the existing accounts of the crew members. That said, both the LA
and the NLRC made a factual finding that prior to the burning incident, respondent
was caught pilfering the vessel’s supplies for which he was told that he was to be
relieved from his duties. This adequately supports the reasonable conclusion that
respondent may have harbored a grudge against the captain and the chief steward
who denied giving him the questioned items. At the very least, it was natural for him
to brood over feelings of resentment considering his impending dismissal. These
incidents shore up the theory that he was motivated to commit an act of sabotage
which, however, backfired into his own burning.

In this relation, the Court observes that a definitive pronouncement on respondent’s

mental unfitness need not be reached since the totality of the above-stated
circumstances already figures into the rational inference that respondent’s burning
was not a product of an impaired mental disposition but rather an incident which
sprung from his own volition. Mental impairment connotes the lack of control over
one’s action. If the actor is conscious of what he is doing, as respondent was in this
case by sabotaging the ship, then a finding of mental unfitness is not needed. Differing
from the CA s take on the matter, it is not contrary to human experience or logic for a
spurned man to resort to tactics of desperation, however ludicrous or extreme those
tactics may be, or however untoward or unfortunate its consequences may turn out,
as in this case.

All told, petitioners having established through substantial evidence that respondent s
injury was self-inflicted and, hence, not compensable pursuant to Section 20 (D) of the
1996 POEA-SEC, no grave abuse of discretion can be imputed against the NLRC in
upholding the dismissal by the LA of his complaint for disability benefits. It is well-
settled that an act of a court or tribunal can only be considered to be tainted with grave
abuse of discretion when such act is done in a capricious or whimsical exercise of
judgment as is equivalent to lack of jurisdiction.60 For the reasons herein detailed, the
Court finds these qualities of capriciousness or whimsicality wanting in the case at bar
and thus, holds that the CA erred in ruling that grave abuse of discretion exists.

WHEREFORE, the petition is GRANTED. The Decision dated October 31, 2006 and
Resolution dated June 25, 2007 of the Court of Appeals in CA-G.R. SP No. 84769 are
REVERSED and SET ASIDE. Accordingly, the Decision dated January 30, 2004 of
the National Labor Relation Commission dismissing respondent Alexander L.
Moradas’ complaint for permanent total disability benefits and other money claims is
hereby REINSTATED.

SO ORDERED.