Acquisition and sale of Property/enter into contractsMunicipality of Camiling vs. LopezG.R. No. L-8945 May 23, 1956By RedFacts:A contract of lease was executed by the Municipality of Camiling in favor of the Defendant, Diego Z. Lopez, leasing to the latter certain fisheries of the Municipality of Camiling for three consecutive years, the rental to be payable in three yearly installment. The Defendant had paid all the lease rentals for the first two years of the lease and part of the rental for the third year of the lease, but Defendant failed to pay the remaining balance corresponding to the third year. It is the last amount which the Municipality of Camiling seeks to recover by virtue of this action.The Defendant alleged as special defenses that the contract of lease was null and void ab initio and that if there was any valid or legal obligation at all, the same had been condoned and released. It appears from a statement in the decision appealed from that the case was submitted to the court a quo on the legal point of whether or not the lease contract executed between the municipality of Camiling and the Defendant is a valid contract or a void contract. The trial judge held that the contract of lease on which the action is based was not approved by the provincial governor in violation of section 2196 of the Revised Administrative Code, and, therefore, the contract was void and non-existent; that the mere fact that the lessee took possession of the leased property and paid the corresponding rentals for more than two years does not validate the contract of lease. In a similar case, the Municipality of Hagonoy sought to enforce a penal clause contained in contracts of lease of fishponds, which provided that in case of non-fulfillment by the lessee the latter would pay a surcharge of 20 per cent, the contracts of lease involved were not approved by the provincial governor as required by section 2196 of the Revised Administrative Code. The court also said that as the principal obligation was void, its nullity carried with it that of the penal clause. Issue:Whether or not the contract of lease is void ab initioHeld:NoThe acts declared void (actos nulos) in Article 4 of the old Civil Code are those executed in violation of the provisions of law. Not all of these are ipso facto void. They may be of two kinds, those that are ipso facto void and those which are merely voidable. The approval by the provincial governor of contracts entered into and executed by a municipal council, as required in section 2196 of the Revised Administrative Code, is part of the system of supervision that the provincial government exercises over the municipal governments. It is not a prohibition against municipal councils entering into contracts regarding municipal properties subject of municipal administration or control. It does not deny the power, right or capacity of municipal councils to enter into such contracts; power or capacity is recognized. Only the exercise thereof is subject to supervision by approval or disapproval, i.e., contracts entered in pursuance of the power would ordinarily be approved if entered into in good faith and for the best interests of the municipality; they would be denied approval if found illegal or unfavorable to public or municipal interest. The absence of the approval, therefore, does not per se make the contracts null and void.In the case at bar, except for the lack of said approval, the contract of lease is a perfectly legitimate one. The subject thereof are fisheries belonging to the municipality, subject to management and administration by itself. Neither is there anything in the contract of lease which would taint it with illegality, like a violation of public order or public morality, or a breach of a declared national policy. The contract is not ipso facto absolutely null and void. It could have been ratified after its execution in the ordinary course of administration. It is merely voidable at the option of the party who in law is granted the right to invoke its invalidity.On the one hand, it should be noted that Article 1302 of the old Civil Code provides that persons capable of entering into a contract may not invoke the incapacity of those with whom they contract. In accordance with the above provision, the lessee in the case at bar could not allege that the contract could not be enforced against him because the contract was not approved by the governor.On the other hand, we must take into account that the Defendant, who was the lessee, actually entered into the possession of the fisheries subject of the lease and paid the rentals for two years, except the last amount sought in the action, without questioning the validity of the contract because it was not approved by the governor. The Defendant could have raised the objection against the enforceability of the contract before its terms were carried out. But he did not do so and actually waived the objection thereto, entering upon the fisheries subject of the lease and paying the rentals agreed upon for two years. After he had taken advantage of the contract, entering upon the possession of the fisheries and enjoying its fruits, with knowledge of the existence of a defect in the said contracts, which knowledge is presumed, he should not thereafter be permitted to attack it on the ground that the contract did not bear the approval of the provincial governor as required by law. From the foregoing considerations, the judgment appealed from should be reversed and the Defendant-Appellee ordered to pay the Plaintiff municipality.Estate of Gonzalez vs. Heirs of Marcos PerezG.R. No. 169681 Nov 5, 2009Facts:The former Municipality of Marikina in the Province of Rizal (now City of Marikina, Metro Manila) used to own a parcel of land located in Barrio Concepcion of the said municipality covered by Original Certificate of Title (OCT) No. 629 of the Register of Deeds of Rizal. The said property was subdivided into three (3) lots, namely, lots A, B and C.The Municipal Council of Marikina passed Resolution No. 9, series of 1966 which authorized the sale through public bidding of Municipal Lots A and C.A public bidding was conducted wherein Pedro Gonzales was the highest bidder. Two days thereafter, the Municipal Council of Marikina issued Resolution No. 75 accepting the bid of Pedro. Thereafter, a deed of sale was executed in favor of the latter which was later forwarded to the Provincial Governor of Rizal for his approval. The Governor, however, did not act upon the said deed.In the meantime, Pedro sold to Marcos Perez a portion of Lot C, denominated as Lot C-3, which contains an area of 375 square meters. The contract of sale was embodied in a Deed of Sale which, however, was not notarized. To segregate the subject property from the remaining portions of Lot C, Marcos had the same surveyed wherein a technical description of the subject lot was prepared by a surveyor.Subsequently, Pedro and Marcos died.The Municipality of Marikina, through its then Mayor Rodolfo Valentino, executed a Deed of Absolute Transfer of Real Property over Lots A and C in favor of the Estate of Pedro C. Gonzales. The Transfer Certificate of Title (TCT) covering Lot C, was issued in the name of the said estate.Subsequently, herein petitioners executed an extra-judicial partition wherein Lot C was subdivided into three lots. As a result of the subdivision, new titles were issued wherein the 370-square-meter portion of Lot C-3 is now denominated as Lot C-1 and the remaining 5 square meters of the subject lot (Lot C-3) now forms a portion of another lot denominated as Lot C-2.Respondents sent a demand letter to one of herein petitioners asking for the reconveyance of the subject property. However, petitioners refused to reconvey the said lot. As a consequence, respondents filed an action for Annulment and/or Rescission of Deed of Absolute Transfer of Real Property x x x and for Reconveyance with Damages.The RTC ruled that since the Deed of Sale executed between Pedro and Marcos was not notarized, the same is considered void and of no effect. In addition, the trial court also held that Pedro became the owner of the subject lot only on February 7, 1992; as such, he could not have lawfully transferred ownership thereof to Marcos in 1966.The CA reversed the decision and held that a sale of real property, though not consigned in a public instrument, is nevertheless valid and binding among the parties and that the form required in Article 1358 of the Civil Code is not essential to the validity or enforceability of the transactions but only for convenience.Issue:Whether or not the sale between Pedro Gonzales and Marcos was valid despite the prior Deed of Sale between Pedro and the Municipality of Marikina was still subject to approval by the Provincial Governor of RizalHeld:Yes.In Municipality of Camiling v. Lopez, it held that the absence of the approval does not per se make the contracts null and void.Pending approval or disapproval by the Provincial Governor of a contract entered into by a municipality which falls under the provisions of Section 2196 of the Revised Administrative Code, such contract is considered voidable. In the instant case, there is no showing that the contract of sale entered into between Pedro and the Municipality of Marikina was ever acted upon by the Provincial Governor. Hence, consistent with the rulings enunciated above, the subject contract should be considered voidable. Voidable or annullable contracts, before they are set aside, are existent, valid, and binding, and are effective and obligatory between the parties.In the present case, since the contract was never annulled or set aside, it had the effect of transferring ownership of the subject property to Pedro. Having lawfully acquired ownership of Lots A and C, Pedro, in turn, had the full capacity to transfer ownership of these parcels of land or parts thereof, including the subject property which comprises a portion of Lot C.In the present case, there is no dispute that Pedro took control and possession of the said lot immediately after his bid was accepted by the Municipal Government of Marikina. In fact, herein petitioners, in their Answer with Compulsory Counterclaim admit that both Pedro and Marcos, together with their respective heirs, were already occupying the subject property even before the same was sold to Pedro and that, after buying the same, Pedro allowed Marcos and his family to stay thereon. This only shows that upon perfection of the contract of sale between the Municipality of Marikina and Pedro, the latter acquired ownership of the subject property by means of delivery of the same to him.Under Article 1403, the sale of real property should be in writing and subscribed by the party charged for it to be enforceable. In the case before the Court, the Deed of Sale between Pedro and Marcos is in writing and subscribed by Pedro and his wife Francisca; hence, it is enforceable under the Statute of Frauds.However, not having been subscribed and sworn to before a notary public, the Deed of Sale is not a public document and, therefore, does not comply with Article 1358 of the Civil Code.Nonetheless, it is a settled rule that the failure to observe the proper form prescribed by Article 1358 does not render the acts or contracts enumerated therein invalid. It has been uniformly held that the form required under the said Article is not essential to the validity or enforceability of the transaction, but merely for convenience.Requisites, Ultra Vires Acts / Liability of LGUsLand Bank of the Philippines vs Eduardo M. Cacayuran GR No. 191667 April 17,2013By IrishFacts:The municipality Sanguniang Bayan passed a resolution to implement a multi phased plan to develop Agoo Public Plaza. They passed a resolution authorizing Mayor Enriguel to obtain a loan from Land Bank and incidental thereto, mortgage a 2,353.75 sq. meter lot which is a portion of its plaza as a collateral, it further authorized the assignment of a portion of its Internal Reveneu Allotment and the monthly income from the project as additional security. Land Band then extended a 4M loan in favor of the municipality. 10 kiosks were completely constructed and rented out. They passed another resolution to build a commercial center on the Plaza lot and contracted another loan posting the same securities as that of the first loan to Land Bank. 28M was granted in favor of the municipality as their 2nd loan.Respondent Cacayuran invoking his right as a taxpayer, filed a complaint against the implicated officers and Land Bank, questioning the validity of the subject loans on the ground that the Plaza lot used as a collateral of the loans is a property of public dominion and therefore, beyond the commerce of men. Land Bank claimed that Cacayuran did not have a cause of action and that it is not privy to the implicated Officers acts of destroying the Agoo Plaza. Pending the proceedings, construction of the commercial center finally completed and made known as Agoos People Center (APC).The SB passed another ordinance declaring APC as patrimonial property.RTC ruled in favor of Cacayuran, declaring the nullity of the subject loan. And that the resolution passed approving the said loan was in a highly irregular manner and thus Ultra Vires. It further added that the Plaza lot is proscribed from collateralization since it is a property for public use. Only Landbank appealed yet CA affirmed with modification the RTCs ruling, excluding Vice Mayor Eslao from the liability. It also held that Cacayuran has Locus Standi to file his complaint and that the resolution is invalid and that the Plaza is a property of public dominion and so it cannot be appropriated by the state or private person. CA further added that subject loans are ultra vires, they are transacted without proper authority and their collateralization constituted improper disbursement of public funds. Hence, Land Bank file this instant petition.Issues:1. Whether Cacayuran has standing to sue,2. Whether the subject Resolutions were validly passed3. Whether the subject loans are Ultra ViresHeld:1. A tax payer is allowed to sue where there is a claim that public funds are illegally disbursed, or that public money is being deflected to any improper purpose, or that there is wastage of public funds through the enforcement of an invalid or unconstitutional law. 2 requisites must (a)public funds derived from taxation are disbursed by a political subdivision or instrumentality and in doing so, a law is violated or some irregularly is committed. (b) the petitioner is directly affected by the alleged act. As in this case the requisites are present Cacayuran as a resident tax payer has Lucos Standi to sue. Although the construction of the APC would be primarily sourced from the proceeds of the Subject Loans, which Land Bank insists are not taxpayers money, there is no denying that public funds derived from taxation are bound to be expended as the Municipality assigned a portion of its IRA as a security for the foregoing loans. Needless to state, the Municipalitys IRA, which serves as the local government units just share in the national taxes, is in the nature of public funds derived from taxation. The Court believes, however, that although these funds may be posted as a security, its collateralization should only be deemed effective during the incumbency of the public officers who approved the same, else those who succeed them be effectively deprived of its use. The proceeds from the Subject Loans had already been converted into public funds by the Municipalitys receipt thereof. Funds coming from private sources become impressed with the characteristics of public funds when they are under official custody.2. In the question of the validity of resolution. It was deemed to be tainted with irregularities such as the SBs failure to submit Resolutions to the Sanguniang Panlalawigan and the lack of publication and posting in contravention of Sec. 59 of the LGC. Land Bank cannot rely on the Subject resolutions as basis to validate the loan because the authorization to contract the loan by the Mayor and the Redevelopement Plan itself were not approved pursuant to any law or ordinance but through mere resolution. The distinction between ordinances and resolutions is well-perceived. While ordinances are laws and possess a general and permanent character, resolutions are merely declarations of the sentiment or opinion of a lawmaking body on a specific matter and are temporary in nature. As opposed to ordinances, no rights can be conferred by and be inferred from a resolution.3. Generally, an ultra vires act is one committed outside the object for which a corporation is created as defined by the law of its organization and therefore beyond the powers conferred upon it by law. There are two (2) types of ultra vires acts. As held in Middletown Policemen's Benevolent Association v. Township of Middletown: There is a distinction between an act utterly beyond the jurisdiction of a municipal corporation and the irregular exercise of a basic power under the legislative grant in matters not in themselves jurisdictional. The former are ultra vires in the primary sense and void; the latter, ultra vires only in a secondary sense which does not preclude ratification or the application of the doctrine of estoppel in the interest of equity and essential justice. In other words, an act which is outside of the municipalitys jurisdiction is considered as a void ultra vires act, while an act attended only by an irregularity but remains within the municipalitys power is considered as an ultra vires act subject to ratification and/or validation. To the former belongs municipal contracts which (a) are entered into beyond the express, implied or inherent powers of the local government unit; and (b) do not comply with the substantive requirements of law e.g., when expenditure of public funds is to be made, there must be an actual appropriation and certificate of availability of funds; while to the latter belongs those which (a)are entered into by the improper department, board, officer of agent; and (b)do not comply with the formal requirements of a written contract e.g., the Statute of Frauds. Applying these principles to the case at bar, it is clear that the Subject Loans belong to the first class of ultra vires acts deemed as void. Records disclose that the said loans were executed by the Municipality for the purpose of funding the conversion of the Agoo Plazainto a commercial center pursuant to the Redevelopment Plan. However, the conversion of the said plaza is beyond the Municipalitys jurisdiction considering the propertys nature as one for public use and thereby, forming part of the public dominion. Accordingly, it cannot be the object of appropriation either by the State or by private persons. Nor can it be the subject of lease or any other contractual undertaking.Settlement of Boundary DisputeMUNICIPALITY OF KANANGA vs. Hon. FORTUNITO L. MADRONA, G.R. No. 141375 April 30, 2003Facts:A boundary dispute arose between the Municipality of Kananga and the City of Ormoc. By agreement, the parties submitted the issue to amicable settlement by a joint session of the Sangguniang Panlungsod of Ormoc City and the Sangguniang Bayan of Kananga on October 31, 1997.No amicable settlement was reached. Instead, the members of the joint session issued Resolution No. 97-01, which in part reads:"x x x IT IS HEREBY RESOLVED x x x to pass a resolution certifying that both the Sangguniang Panlungsod of Ormoc City and the Sangguniang Bayan of Kananga, Leyte have failed to settle amicably their boundary dispute and have agreed to elevate the same to the proper court for settlement by any of the interested party (sic)."4To settle the boundary dispute, the City of Ormoc filed before the RTC of Ormoc City (Branch 35) on September 2, 1999, a Complaint docketed as Civil Case No. 3722-O.On September 24, 1999, petitioner filed a Motion to Dismiss on the following grounds:"(1) That the Honorable Court has no jurisdiction over the subject matter of the claim;"(2) That there is no cause of action; and"(3) That a condition precedent for filing the complaint has not been complied with[.]"5Ruling of the Trial CourtIn denying the Municipality of Kanangas Motion to Dismiss, the RTC held that it had jurisdiction over the action under Batas Pambansa Blg. 129. It further ruled that Section 118 of the Local Government Code had been substantially complied with, because both parties already had the occasion to meet and thresh out their differences. In fact, both agreed to elevate the matter to the trial court via Resolution No. 97-01. It also held that Section 118 governed venue; hence, the parties could waive and agree upon it under Section 4(b) of Rule 4 of the Rules of Court.Not satisfied with the denial of its Motion, the Municipality of Kananga filed this Petition.6Issue:In their respective Memoranda, both parties raise the lone issue of whether respondent court may exercise original jurisdiction over the settlement of a boundary dispute between a municipality and an independent component city.Held:The Petition has no merit.Sole Issue:JurisdictionJurisdiction is the right to act on a case or the power and the authority to hear and determine a cause.7 It is a question of law.8 As consistently ruled by this Court, jurisdiction over the subject matter is vested by law.9 Because it is "a matter of substantive law, the established rule is that the statute in force at the time of the commencement of the action determines the jurisdiction of the court."10Both parties aver that the governing law at the time of the filing of the Complaint is Section 118 of the 1991 Local Government Code (LGC),11 which provides:"Sec. 118. Jurisdictional Responsibility for Settlement of Boundary Disputes. Boundary disputes between and among local government units shall, as much as possible, be settled amicably. To this end:"(a) Boundary disputes involving two (2) or more barangays in the same city or municipality shall be referred for settlement to the sangguniang panlungsod or sangguniang bayan concerned."(b) Boundary disputes involving two (2) or more municipalities within the same province shall be referred for settlement to the sangguniang panlalawigan concerned."(c) Boundary disputes involving municipalities or component cities of different provinces shall be jointly referred for settlement to the sanggunians of the provinces concerned."(d) Boundary disputes involving a component city or municipality on the one hand and a highly urbanized city on the other, or two (2) or more highly urbanized cities, shall be jointly referred for settlement to the respective sanggunians of the parties."(e) In the event the sanggunian fails to effect an amicable settlement within sixty (60) days from the date the dispute was referred thereto, it shall issue a certification to that effect. Thereafter, the dispute shall be formally tried by the sanggunian concerned which shall decide the issue within sixty (60) days from the date of the certification referred to above."Under this provision, the settlement of a boundary dispute between a component city or a municipality on the one hand and a highly urbanized city on the other -- or between two or more highly urbanized cities -- shall be jointly referred for settlement to the respective sanggunians of the local government units involved.There is no question that Kananga is a municipality constituted under Republic Act No. 542.12 By virtue of Section 442(d) of the LGC, it continued to exist and operate as such.However, Ormoc is not a highly urbanized, but an independent component, city created under Republic Act No. 179.13 Section 89 thereof reads:"Sec. 89. Election of provincial governor and members of the Provincial Board of the Province of Leyte. The qualified voters of Ormoc City shall not be qualified and entitled to vote in the election of the provincial governor and the members of the provincial board of the Province of Leyte."Under Section 451 of the LGC, a city may be either component or highly urbanized. Ormoc is deemed an independent component city, because its charter prohibits its voters from voting for provincial elective officials. It is a city independent of the province. In fact, it is considered a component, not a highly urbanized, city of Leyte in Region VIII by both Batas Pambansa Blg. 643,14 which calls for a plebiscite; and the Omnibus Election Code,15which apportions representatives to the defunct Batasang Pambansa. There is neither a declaration by the President of the Philippines nor an allegation by the parties that it is highly urbanized. On the contrary, petitioner asserted in its Motion to Dismiss that Ormoc was an independent chartered city.16Section 118 of the LGC applies to a situation in which a component city or a municipality seeks to settle a boundary dispute with a highly urbanized city, not with an independent component city. While Kananga is a municipality, Ormoc is an independent component city. Clearly then, the procedure referred to in Section 118 does not apply to them.Nevertheless, a joint session was indeed held, but no amicable settlement was reached. A resolution to that effect was issued, and the sanggunians of both local government units mutually agreed to bring the dispute to the RTC for adjudication. The question now is: Does the regional trial court have jurisdiction over the subject matter of the claim?We rule in the affirmative.As previously stated, "jurisdiction is vested by law and cannot be conferred or waived by the parties."17 It must exist as a matter of law and cannot be conferred by the consent of the parties or by estoppel.18 It should not be confused with venue.Inasmuch as Section 118 of the LGC finds no application to the instant case, the general rules governing jurisdiction should then be used. The applicable provision is found in Batas Pambansa Blg. 129,19 otherwise known as the Judiciary Reorganization Act of 1980, as amended by Republic Act No. 7691.20 Section 19(6) of this law provides:"Sec. 19. Jurisdiction in civil cases. Regional Trial Courts shall exercise exclusive original jurisdiction:x x x x x x x x x"(6) In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial functions[."Since there is no law providing for the exclusive jurisdiction of any court or agency over the settlement of boundary disputes between a municipality and an independent component city of the same province, respondent court committed no grave abuse of discretion in denying the Motion to Dismiss. RTCs have general jurisdiction to adjudicate all controversies except those expressly withheld from their plenary powers.21 They have the power not only to take judicial cognizance of a case instituted for judicial action for the first time, but also to do so to the exclusion of all other courts at that stage. Indeed, the power is not only original, but also exclusive.In Mariano Jr. v. Commission on Elections,22 we held that boundary disputes should be resolved with fairness and certainty. We ruled as follows:"The importance of drawing with precise strokes the territorial boundaries of a local unit of government cannot be overemphasized. The boundaries must be clear for they define the limits of the territorial jurisdiction of a local government unit. It can legitimately exercise powers of government only within the limits of its territorial jurisdiction. Beyond these limits, its acts are ultra vires. Needless to state, any uncertainty in the boundaries of local government units will sow costly conflicts in the exercise of governmental powers which ultimately will prejudice the peoples welfare. x x x."Indeed, unresolved boundary disputes have sown costly conflicts in the exercise of governmental powers and prejudiced the peoples welfare. Precisely because of these disputes, the Philippine National Oil Company has withheld the share in the proceeds from the development and the utilization of natural wealth, as provided for in Section 289 of the LGC.23WHEREFORE, the Petition is DENIED and the challenged Order AFFIRMED. No pronouncement as to costs.C. Succession and Elective OfficialsBorja, Jr. v. COMELEC, Jose CapcoGR 133495 September 3, 1998By JetFacts:Jose T. Capco, Jr. was elected Vice Mayor of Pateros on January 18, 1988 for a term ending June 30, 1992. On September 2, 1989, he became Mayor upon the death of the incumbent, Cesar Borja. On May 11, 1992, he ran and was elected Mayor for a term of three years which ended on June 30, 1995. On May 8, 1995, he was re-elected Mayor for another term of three years ending July 30, 1998. On March 27, 1998, Capco filed a certificate of candidacy for Mayor of Pateros relative to the May 11, 1998 elections. Petitioner Benjamin Borja, Jr., who was also a candidate for Mayor, sought Capcos disqualification on the theory that the latter would already have served as mayor for three consecutive terms by June 30, 1998 and would thereafter be ineligible to serve for another term after that. The COMELEC ruled in favor of Capco saying that In both the Constitution and the Local Government Code, the three-term limitation refers to the term of office for which the local official was elected. It made no reference to succession to an office to which he was not elected. Capco won in the elections against Borja.Issue:1. Whether a vice-mayor who succeeds to the office of mayor by operation of law and serves the remainder of the term is considered to have served a term in that office for the purpose of the three-term limit.2. WON Capco has served for three consecutive terms as Mayor?Held:1. The Court ruled in favor of Capco. The term served must therefore be one for which the official concerned was elected. If he is not serving a term for which he was elected because he is simply continuing the service of the official he succeeds, such official cannot be considered to have fully served the term notwithstanding his voluntary renunciation of office prior to its expiration. There is a difference between the case of a vice-mayor and that of a member of the House of Representatives who succeeds another who dies, resigns, becomes incapacitated, or is removed from office. The vice-mayor succeeds to the mayorship by operation of law. On the other hand, the Representative is elected to fill the vacancy. In a real sense, therefore, such representative serves a term for which he was elected. To consider Capco to have served the first term in full (when he succeeded the mayorship upon demise of Cesar Borja) and therefore ineligible to run a third time for reelection would be not only to falsify reality but also to unduly restrict the right of the people to choose whom they wish to govern them. Hence, the petition was dismissed.2. No. Article X, Sec. 8 of the Constitution provides that the term of office of elective local officials shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.This provision is restated in par. 43(b) of the Local Government Code (R.A. No. 71) which states that no local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected.The term served must therefore be one for which [the official concerned] was elected. The purpose of this provision is to prevent a circumvention of the limitation on the number of terms an elective official may serve. Conversely, if he is not serving a term for which he was elected because he is simply continuing the service of the official he succeeds, such official cannot be considered to have fully served the term not withstanding his voluntary renunciation of office prior to its expiration.The term limit for elective local officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Consequently, it is not enough that an individual has served three consecutive terms in an elective local office, he must also have been elected to the same position for the same number of times before the disqualification can apply.Montebon vs ComelecG.R. No. 180444 April 8, 2008Facts:Petitioners Montebon and Ondy and respondent Potencioso, Jr. were candidates for municipal councilor of the Municipality of Tuburan, Cebu for the May 14, 2007 Elections.On April 30, 2007, petitioners and other candidates for municipal councilor filed a petition for disqualification against respondent with the COMELEC alleging that respondent had been elected and served three consecutive terms as municipal lcouncilor in 1998-2001, 2001-2004, and 2004-2007. Thus, he is proscribed from running for the same position in the 2007 elections as it would be his fourth consecutive term.In his answer, respondent argues that he cannot be disqualified on the ground of the 3 term limit rule because his second term was interrupted when he assumed the position of vice-mayor due to the retirement of elected vice-mayor Petronilo Mendoza.Petitioners maintain that respondent's assumption of office as vice-mayor in January 2004 should not be considered an interruption in the service of his second term since it was a voluntary renunciation of his office as municipal councilor. They argued that, according to the law (constitution and LGC), voluntary renunciation of the office for any length of time shall not be considered an interruption in the continuity of service for the full term for which the official concerned was elected.On June 2, 2007, the COMELEC First Division denied the petition for disqualification ruling that respondent's assumption of office as vice-mayor should be considered an interruption in the continuity of his service. His second term having been involuntarily interrupted, respondent should thus not be disqualified to seek reelection as municipal councilor.On appeal, the COMELEC En Banc upheld the ruling of the First Division. Petitioners filed the instant petition for certiorari on the ground that the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in ruling that respondent's assumption of office as vice-mayor in January 2004 interrupted his 2001-2004 term as municipal councilor.Issue:WON the private respondents assumption of the vice-mayor office, by virtue of succession, can be considered as an effective disruption in his full service of his second term as councilor.Held:YES. In Lonzanida v. Commission on Elections, the Court held that the two conditions for the application of the disqualification must concur: 1) that the official concerned has been elected for three consecutive terms in the same local government post; and 2) that he has FULLY served three consecutive terms.In Borja, Jr. v. Commission on Elections, the Court emphasized that the term limit for elective officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Thus, for the disqualification to apply, it is not enough that the official has been elected three consecutive times; he must also have served three consecutive terms in the same position.In Lonzanida v. Commission on Elections, the Court explained the concept of voluntary renunciation as follows:The second sentence of the constitutional provision under scrutiny states, Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which he was elected. The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the peoples choice and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three term limit; conversely, involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service.While it is undisputed that respondent was elected municipal councilor for three consecutive terms, the issue lies on whether he is deemed to have fully served his second term in view of his assumption of office as vice-mayor of Tuburan on January 12, 2004.Succession in local government offices is by operation of law. Section 44 of Republic Act No. 7160, provides that if a permanent vacancy occurs in the office of the vice mayor, the highest ranking sanggunian member shall become vice mayor.In this case, a permanent vacancy occurred in the office of the vice mayor due to the retirement of Vice Mayor Mendoza. Respondent, being the highest ranking municipal councilor, succeeded him in accordance with law. Thus, respondent's assumption of office as vice-mayor in January 2004 was an involuntary severance from his office as municipal councilor, resulting in an interruption in the service of his 2001-2004 term. It cannot be deemed to have been by reason of voluntary renunciation because it was by operation of law.We quote with approval the ruling of the COMELEC that The legal successor is not given any option under the law on whether to accept the vacated post or not. Section 44 of the Local Government Code makes no exception. Only if the highest- ranking councilor is permanently unable to succeed to the post does the law speak of alternate succession. Under no circumstances can simple refusal of the official concerned be considered as permanent inability within the contemplation of law.Thus, succession by law to a vacated government office is characteristically not voluntary since it involves the performance of a public duty by a government official, the non-performance of which exposes said official to possible administrative and criminal charges of dereliction of duty and neglect in the performance of public functions. It is therefore more compulsory and obligatory rather than voluntary. (Montebon vs. Comelec, G.R. No. 180444. April 9, 2008)The Court ruled that Montebons assumption of office as vice-mayor in January 2004 was an interruption of his continuity of service as councilor. The Court emphasized that succession in local government office is by operation of law and as such, it is an involuntary severance from office. Since the law no less allowed Montebon to vacate his post as councilor in order to assume office as vice mayor, his occupation of the higher office cannot, without more, be deemed as a voluntary renunciation of his position as councilor. D. Discipline of Elective Officials, grounds and Jurisdiction, Power of the Ombudsman/ Sandiganbayan Regular CourtsAmbil Jr. vs SandiganbayanG.R. No. 175457July 6, 2011By CoyFacts:Eastern Samar Governor Ruperto Ambil and Provincial warden Alexandrino Apelado, Sr. were charged before the Sandiganbayan for violating Section 3(e) of Republic Act No. 3019 otherwise known as the Anti-Graft and Corrupt Practices Act and for Delivering Prisoners from Jail under Article 156 of the Revised Penal Code, after Governor Ambil ordered the release of detained mayor Francisco Adalim and had the latter transferred from the provincial jail to the governors residence. Mayor Adalim was then facing a criminal charge for murder. The Sandiganbayan, First Division, found the petitioners guilty of violating Section 3(e) of R.A. No. 3019. The court ruled that in moving Adalim to a private residence, petitioners have conspired to accord him unwarranted benefits in the form of more comfortable quarters with access to television and other privileges that other detainees do not enjoy. It stressed that under the Rules, no person under detention by legal process shall be released or transferred except upon order of the court or when he is admitted to bail. Hence, the present petitions.Issues:The issues raised by petitioner Ambil, Jr. can be summed up into three: (1) Whether he is guilty beyond reasonable doubt of violating Sec 3(e), R.A. No. 3019; (2) Whether a provincial governor has authority to take personal custody of a detention prisoner; and (3) Whether he is entitled to the justifying circumstance of fulfillment of duty under Article 11(5) of the RPC. The Issues raised by petitioner Apelado, Sr. can be condensed into two: (1) Whether he is guilty beyond reasonable doubt of violating Section 3(e), R.A. No. 3019; and (2) Whether he is entitled to the justifying circumstance of obedience to an order issued by a superior for some lawful purpose under Article 11(6) of the RPC.Held:The Court finds the present petitions bereft of merit. Petitioners were charged with violation of Section 3(e) of R.A. No. 3019 or the Anti-Graft and Corrupt Practices Act. In order to hold a person liable under this provision, the following elements must concur: (1) the accused must be a public officer discharging administrative, judicial or official functions; (2) he must have acted with manifest partiality, evident bad faith or gross inexcusable negligence; (3) his action caused any undue injury to any party, including the government, or gave any private party unwarranted benefits, advantage or preference in the discharge of his functions.The accused must be a public officer discharging administrative, judicial or official functionsAs to the first element, there is no question that petitioners are public officers discharging official functions and that jurisdiction over them lay with the Sandiganbayan. Although Apelado has a salary grade below SG 27, his acts are still within its jurisdiction, having been accused with the governor. Section 4 of Presidential Decree No. 1606, as amended, read as follows: SEC. 4. Jurisdiction.The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: x x xThe accused have acted with manifest partiality, evident bad faith or gross inexcusable negligence;The Court finds that petitioners displayed manifest partiality and evident bad faith in transferring the detention of Mayor Adalim to petitioner Ambil, Jr.s house. The mayor-detainee was housed in much more comfortable quarters, provided better nourishment, was free to move about the house and watch television. Petitioners readily extended these benefits to Adalim on the mere representation of his lawyers that the mayors life would be put in danger inside the provincial jail.There is no merit to petitioner Ambil, Jr.s contention that he is authorized to transfer the detention of prisoners by virtue of his power as the Provincial Jailer of Eastern Samar. Section 28 of the Local Government Code draws the extent of the power of local chief executives over the units of the Philippine National Police within their jurisdiction:SEC. 28. Powers of Local Chief Executives over the Units of the Philippine National Police.The extent of operational supervision and control of local chief executives over the police force, fire protection unit, and jail management personnel assigned in their respective jurisdictions shall be governed by the provisions of Republic Act Numbered Sixty-nine hundred seventy-five (R.A. No. 6975), otherwise known as The Department of the Interior and Local Government Act of 1990, and the rules and regulations issued pursuant thereto.In particular, Section 61, Chapter 5 of R.A. No. 6975 on the Bureau of Jail Management and Penology provides: Sec. 61. Powers and Functions. - The Jail Bureau shall exercise supervision and control over all city and municipal jails. The provincial jails shall be supervised and controlled by the provincial government within its jurisdiction, whose expenses shall be subsidized by the National Government for not more than three (3) years after the effectivity of this Act. Significantly, it is the provincial government and not the governor alone which has authority to exercise control and supervision over provincial jails. In any case, neither of said powers authorizes the doing of acts beyond the parameters set by law. In fact, subordinates must be enjoined to act within the bounds of law. In the event that the subordinate performs an act ultra vires, rules may be laid down on how the act should be done, but always in conformity with the law. Petitioner Ambil, Jr. cited Section 1731, Article III of the Administrative Code of 1917. But, the only reference to a transfer of prisoners in said article (which survived the Adminstrative Code of 1987) is found in Section 1737 under which prisoners may be turned over to the jail of the neighboring province in case the provincial jail be insecure or insufficient to accommodate all provincial prisoners. However, this provision has been superseded by Section 3, Rule 114 of the Revised Rules of Criminal Procedure, as amended. Section 3, Rule 114 provides: SEC. 3. No release or transfer except on court order or bail.-No person under detention by legal process shall be released or transferred except upon order of the court or when he is admitted to bail.Indubitably, the power to order the release or transfer of a person under detention by legal process is vested in the court, not in the provincial government, much less the governor. The actions of the accused caused any undue injury to any party, including the government, or gave any private party unwarranted benefits, advantage or preference in the discharge of his functionAs to the third element, petitioner Ambil, Jr. negates the applicability of Section 3(e), R.A. No. 3019 on two points. (1) the last sentence thereof provides that the provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses, permits or other concessions and he is not such government officer or employee.(2) the purported unwarranted benefit was accorded not to a private party but to a public officer. On his first contention, the Court cited its ruling in Mejorada v. Sandiganbayan which held that a prosecution for violation of Section 3(e) of the Anti-Graft Law will lie regardless of whether or not the accused public officer is charged with the grant of licenses or permits or other concessions. ........The Court explained that it is a strained construction of the provision to read it as applying exclusively to public officers charged with the duty of granting licenses or permits or other concessions. In the more recent case of Cruz v. Sandiganbayan, the Supreme Court also affirmed that a prosecution for violation of said provision will lie regardless of whether the accused public officer is charged with the grant of licenses or permits or other concessions.As to whether the mayor-detainee be considered a private party accorded with unwarranted benefit, the Court says:..In drafting the Anti-Graft Law, the lawmakers opted to use private party rather than private person to describe the recipient of the unwarranted benefits, advantage or preference for a reason. The term party is a technical word having a precise meaning in legal parlance as distinguished from person which, in general usage, refers to a human being. Thus, a private person simply pertains to one who is not a public officer. While a private party is more comprehensive in scope to mean either a private person or a public officer acting in a private capacity to protect his personal interest.In the present case, when petitioners transferred Mayor Adalim from the provincial jail and detained him at petitioner Ambil, Jr.s residence, they accorded such privilege to Adalim, not in his official capacity as a mayor, but as a detainee charged with murder. Thus, for purposes of applying the provisions of Section 3(e), R.A. No. 3019, Adalim was a private party. On justifying circumstances:Petitioner Ambil, Jr. invokes the justifying circumstance of fulfillment of duty or lawful exercise of right or office. Under paragraph 5, Article 11 of the RPC, any person who acts in the fulfillment of a duty or in the lawful exercise of a right or office does not incur any criminal liability. As we have earlier determined, petitioner Ambil, Jr. exceeded his authority when he ordered the transfer and detention of Adalim at his house. Needless to state, the resulting violation of the Anti-Graft Law did not proceed from the due performance of his duty or lawful exercise of his office.In the case of petitioner Apelado, While the order for Adalims transfer emanated from petitioner Ambil, Jr., who was then Governor, neither said order nor the means employed by petitioner Apelado, Sr. to carry it out was lawful. The Court was able to establish the participation of Apelado as principal by indispensable cooperation.The Supreme Court DENIED the consolidated petitions and AFFIRMED WITH MODIFICATION the Decision of the Sandiganbayan. Alejandro vs Office of the OmbudsmanG.R. NO. 173121 April 3, 2013Facts:The Manila Water Services, Inc. (MWSI) received a report that the Mico Car Wash (MICO), owned by Alfredo Rap Alejandro, has been illegally opening a MWSI fire hydrant and using it to operate its car-wash business. The matter was coordinated with the PNP-CIDG which conducted an anti-water pilferage operation against MICO.When MICOs car wash boys were arrested and their water containers were confiscated during police operation, the petitioner, Franklin Alejandro, Alfredo's father and Punong Barangay of the area, interfered by ordering several men to unload the confiscated containers. The commotion that followed caused the escape of the apprehended boys.An administrative complaint was filed at Office of the Overall Deputy Ombudsman against the PB Alejandro for his blatant refusal to recognize a joint legitimate police activity, and for his unwarranted intervention. The Office of the Deputy Ombudsman found the petitioner guilty of grave misconduct and ordered his dismissal from the service; and ruled that the petitioner cannot overextend his authority as Barangay Chairman and induce other people to disrespect proper authorities and that the petitioner had tolerated the illegal acts of MICO's car-wash boys.When his motion for reconsideration was denied, the petitioner appealed to the CA, which dismissed the petition for premature filing; that the petitioner failed to exhaust proper administrative remedies because he did not appeal the Deputy Ombudsman's decision to the Ombudsman.The petitioners motion for the reconsideration of the CA ruling was also denied; hence this petition for review on certiorari.ch Issues:1. Whether the principles of exhaustion of administrative remedies requires a request for reconsideration from the Office of the Deputy Ombudsman to the Ombudsman for purpose of a Rule 43 review;2. Whether the Office of the Ombudsman has jurisdiction over Elective Officials and has the power to order their dismissal from service;3. Whether the petitioners act constitute grave misconduct to warrant his dismissalHeld:On Issue No. 1The Court referred to Section 7, Rule III of Administrative Order No. 07, dated April 10, 1990, provides that:chanroblesvirtualawlibrary Section 7. FINALITY OF DECISION. Where the respondent is absolved of the charge and in case of conviction where the penalty imposed is public censure or reprimand, suspension of not more than one (1) month, or a fine equivalent to one (1) month salary, the decision shall be final and unappealable. In all other cases, the decision shall become final after the expiration of ten (10) days from receipt thereof by the respondent, unless a motion for reconsideration or petition for certiorari shall have been filed by him as prescribed in Section 27 of RA 6770. Administrative Order No. 07 did not provide for another appeal from the decision of the Deputy Ombudsman to the Ombudsman. It simply requires that a motion for reconsideration or a petition for certiorari may be filed in all other cases where the penalty imposed is not one involving public censure or reprimand, suspension of not more than one (1) month, or a fine equivalent to one (1) month salary. To our mind, the petitioner has fully exhausted all administrative remedies when he filed his motion for reconsideration on the decision of the Deputy Ombudsman. There is no further need to review the case at the administrative level since the Deputy Ombudsman has already acted on the case and he was acting for and in behalf of the Office of the Ombudsman.On Issue No. 2The Ombudsman has concurrent jurisdiction over administrative cases which are within the jurisdiction of the regular courts or administrative agencies (Sangguniang Bayan).The Office of the Ombudsman was created by no less than the Constitution. It is tasked to exercise disciplinary authority over all elective and appointive officials, save only for impeachable officers. While Section 21 of The Ombudsman Act and the Local Government Code both provide for the procedure to discipline elective officials, the seeming conflicts between the two laws have been resolved in many cases decided by this Court.nrSince the complaint against the petitioner was initially filed with the Office of the Ombudsman, the Ombudsman's exercise of jurisdiction is to the exclusion of the sangguniang bayan whose exercise of jurisdiction is concurrent.Substantive Issue (Issue No. 3)The petitioner is liable for grave misconductThe maintenance of peace and order in the community is a general function undertaken by the punong barangay. It is a task expressly conferred to the punong barangay under Section 389(b)(3) of RA 7160. On the other hand, the maintenance of peace and order carries both general and specific functions on the part of the police. Section 24 of RA 6975 (otherwise known as "the DILG Act of 1990"), as amended, enumerates the powers and functions of the police. In addition to the maintenance of peace and order, the police has the authority to "investigate and prevent crimes, effect the arrest of criminal offenders, bring offenders to justice and assist in their prosecution," and are charged with the enforcement of "laws and ordinances relative to the protection of lives and properties." Examined side by side, police authority is superior to the punong barangay's authority in a situation where the maintenance of peace and order has metamorphosed into crime prevention and the arrest of criminal offenders.In this case, a criminal act was actually taking place and the situation was already beyond the general maintenance of peace and order. The police was, at that point, under the obligation to prevent the commission of a crime and to effect the arrest, as it actually did, of criminal offenders.From another perspective, the peace and order function of the punong barangay must also be related to his function of assisting local executive officials (i.e., the city mayor), under Section 389(b), Chapter III of the RA 7160 Local executive officials have the power to employ and deploy police for the maintenance of peace and order, the prevention of crimes and the arrest of criminal offenders. Accordingly, in the maintenance of peace and order, the petitioner is bound, at the very least, to respect the PNP-CIDG's authority even if he is not in the direct position to give aid. By interfering with a legitimate police operation, he effectively interfered with this hierarchy of authority. Thus, we are left with no other conclusion other than to rule that Alejandro is liable for misconduct in the performance of his duties.Misconduct is considered grave if accompanied by corruption, a clear intent to violate the law, or a flagrant disregard of established rules, which must all be supported by substantial evidence. Sufficient records exist to justify the imposition of a higher penalty against the petitioner. x x x what we can conclusively confirm is that the petitioner violated the law by directly interfering with a legitimate police activity where his own son appeared to be involved. This act qualifies the misconduct as grave. Section 52(A)(3), Rule IV of the Revised Uniform Rules on Administrative Cases in the Civil Service provides that the penalty for grave misconduct is dismissal from the service.WHEREFORE, in view of the foregoing, we hereby DENY the petition for lack of merit, and AFFIRM the decision of the Court of Appeals in CA-G.R. SP No. 88544.SO ORDERED.Arias vs SandiganbayanGR. No. 81563 & GR. No. 82512 December 19, 1989By PureSummary: Arias (District Engineer) and Data (Chief Auditor), officials of the Province of Rizal were found guilty by the Sandiganbayan (SB) together with their subordinates and a private citizen (seller of land) for having caused injury to & damage to the Republic of the Philippines in connection with scandalous overpricing of land purchased by the Government as right of way for a floodway project, by allowing & approving the illegal disbursement & expenditure of public funds. Facts:Petitioners Arias and Data, were found guilty by SB for violating sec. 3 (e) of the Anti-Graft Practices Act:SEC. 3. Corrupt Practices of Public Officers-In addition to acts or omissions of public officers already penalized by existing law. the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessionsIn 1975, when the Bureau of Public Works planned a floodway project to ease the floods in some parts of Marikina and Pasig, Metro Manila. This floodway project will traverse certain portions of Ortigas, where the subject lot was located. The implementation of this floodway project headed by Petitioner Data. Data formed a committee headed by a Supervising Civil Engr and three others. The team was tasked to notify lot owners affected by the project of the impending expropriation of their properties and to receive and process applications for payment.Among the lot owners affected was a 19,004 sq.m. riceland owned by Agleham, which was previously owned by parents of Gutierrez (private citizen & convicted co-accused) from whom Agleham acquired his property. Gutierrez was one of those who filed an application for payment, holding with her a Special Power of Attorney allegedly executed by Agleham. In her application, she submitted a falsified Tax Declaration Certificate purporting that the land was residential with fair market value of P80/sq mISSUE: WON SB petitioners ARIAS and DATA are guilty as co-conspirators in the conspiracy to cause injury to the Government through the irregular disbursement and expenditure of public funds. HELD:NO.The Sandiganbayan, without any clear factual basis for doing so has assumed that the P5.00 per square meter value fixed by the assessor in the tax declarations was the correct market value of the Mangahan property and if the Government purchased the land for P80.00 a square meter, it follows that it must have suffered undue injury. The Court is not prepared to say that P80.00 to P500.00 a square meter for land in Pasig in 1978 would be a fair evaluation. The value must be determined in eminent domain proceedings by a competent court. There can be no overpricing for purposes of a criminal conviction where no proof adduced during orderly proceedings has been presented and accepted. ARIAS DOCTRINE in CRIMINAL LAW: All heads of offices have to rely to a reasonable extent 'on their subordinates and on the good faith of those prepare bids, purchase supplies, or enter into negotiations. If a department secretary entertains important visitors, the auditor is not ordinarily expected to call the restaurant about the amount of the bill, question each guest whether he was present at the luncheon, inquire whether the correct amount of food was served and otherwisepersonallylook into the reimbursement voucher's accuracy, propriety, and sufficiency. There has to be some added reason why he should examine each voucher in such detail. Any executive head of evensmallgovernment agencies or commissions can attest to the volume of papers that must be signed. There are hundreds of document , letters and supporting paper that routinely pass through his hands. The number in bigger offices or departments is even more appalling.HELD: SB decision SET ASIDE insofar as the conviction of Arias & Data. They are both acquitted on grounds of reasonable doubt. Inadequacy of evidence is not sufficient to warrant a conviction.DISSENTING OPINION OF GRINO-AQUINO: Conspiracy of Silence and Inaction - The petitioner's partiality for Agleham/Gutierrez may be inferred from their having deliberately closed their eyes to the defects and irregularities of the transaction in his favor and their seeming neglect, if not deliberate omission, to check, the authenticity of the documents presented to them for approval. Since partiality is a mental state or predilection, in the absence of direct evidence, it may be proved by the attendant circumstance instances.

Constantino vs SandiganbayanG.R. No. 140656 September 13, 2007Facts:Two (2) consolidated petitions, the determination of both rests ultimately on whether Felipe K. Constantino (Constantino), mayor of Malungon, Sarangani Province, was indeed guilty beyond reasonable doubt of violating Section 3(e) of R.A. No. 3019(The Anti-Graft and Corrupt Practices Act). In G.R. No. 140656, Constantino filed a petition for review on certiorari under Rule 45, assailing the decision finding him and his co-accused, petitioner Norberto N. Lindong (Lindong) guilty beyond reasonable doubt.In an Information against Constantino, in his capacity as mayor, together with his co-accused Lindong, was charged with violation of Section 3 (e) of R.A. No. 3019 before the Sandiganbayan:xxxx, accused Constantino, a public officer, being then the Mayor of Malungon, Sarangani Province, committing the crime herein-charged in relation to, while in the performance and taking advantage of his official functions, with evident bad faith, manifest partiality or through gross inexcusable negligence, and conspiring and confederating with accusedNorberto N. Lindong, President and Chairman of the Board of the Norlovanian Corporation, Davao City, did then and there wilfully, unlawfully and criminally enter into a Lease Agreement for the rental of various heavy equipment for a period of six (6) years for and in consideration of P257,111.11 per month or a total consideration of P18,511,999.92and a guaranty deposit ofP1,780,000.00. xxxxThis is contrary to the express mandate of the Sanguniang Bayan Resolutions that authorized the Municipal Mayor of Malungon to enter into an agreement for the purchase of heavy equipment on a five-year term basis for and in consideration of the amount ofonly P2,200,000.00per year or a total consideration of only P11,000,000.00. Both accused pleaded not guilty to the charge.SB Tomanan testified that he was directed by the COA Regional Office XI to conduct a special and comprehensive audit of the municipality of Malungon for the period of 1 May 1995 to 31 May 1996in view of a complaint filed by certain officials therein. In January 1997, Tomanan submitted his report detailing the following adverse findings relative to the purchase of the subject fleet of heavy equipment: (a) the lease/purchase contract was disadvantageous to the municipal government because of the rigid terms and conditions therein required of the municipality before the latter could acquire ownership over the pool of heavy equipment; xxxxxx (d) the lease/purchase procedure utilized by the municipality was uneconomical and resulted to a wastage ofP9,658,000.00 of government funds.The defense presented Lindong as its sole witness. According to Lindong, after negotiations between himself and petitioner Constantino, together with some members of theSanggunian, the parties agreed to a lease/purchase scheme in accordance with the mandate of the resolution. They agreed that since the municipality did not have sufficient funds to buy the fleet of heavy equipment outright atP8.9 Million, the latter would purchase the subject equipment on installment basis but with allowance for Norlovanian Corporation to recover some incremental cost. Thus, on the very same day, 28 February 1996, Lindong as representative of Norlovanian Corporation and Constantino as representative of the municipality entered into the lease/purchase agreement. They contemporaneously executed the Lease Agreement and Undertaking in the presence of the members of the Sanggunianwho accompanied the mayor.Subsequently Sandiganbayan found the accused guilty beyond reasonable doubt. The Sandiganbayan held that there was no evident bad faith attended the commission of the offense but Constantino caused undue injury to the Municipality through his gross inexcusable negligence in executing only a lease agreement over the fleet of heavy equipment. Lindong, was convicted as co-conspirator of Constantino although it was found that he violated the anti-graft law through negligence only. According to Sandiganbayan since the law violated is a special law, intent to commit the offense was not essential. The Sandiganbayan ruled that it was sufficient for the prosecution to have proven that Lindong allowed or failed to prevent Constantino from entering into an agreement which was clearly contrary to law. Constantino and Lindong filed separate appeals to the Supreme Court and On 25 April 2006, during the pendency of his present appeal, Constantino died.With the death of Constantino during the pendency of his appeal, the same should normally be regarded as moot and academic following the norm that the death of the accused marks the extinction of his criminal liability. However, the present two petitions are so intertwined that the absolution of Constantino is ultimately determinative of the absolution of Lindong. Indeed, the exoneration of Constantino will necessarily signify the injustice of carrying out the penalty imposed on Lindong. Thus, the Court in this instance has to ascertain the merits of Constantinos appeal to prevent a developing miscarriage of justice against Lindong.The "moot and academic" principle is not a magical formula that can automatically dissuade the courts in resolving a case. Courts will decide cases, although they are moot and academic, if: 1) there is a grave violation of the Constitution; 2), the exceptional character of the situation and the paramount public interest is involved; 3), when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public;4), the case is capable of repetition yet evading review.In the instant case, the exceptional character of the appeals of Constantino and Lindong in relation to each other, as well as the higher interest of justice, requires that the Court determine the merits of the petition and not dismiss the same outright on the ground of mootness.ISSUE:Is Constantino guilty or not?HELD:NO. Mayor Constantino would have been acquitted had he still been alive.In order to be liable for violating RA 3019, the following elements must concur: (1) the accused is a public officer or a private person charged in conspiracy with the former; (2) he or she causes undue injury to any party, whether the government or a private party; (3) the said public officer commits the prohibited acts during the performance of his or her official duties or in relation to his or her public positions; (4) such undue injury is caused by giving unwarranted benefits, advantage or preference to such parties; and (5) the public officer has acted with manifest partiality, evident bad faith or gross inexcusable negligence.There are two (2) modes of committing the offense, thus: (1) the public officer caused any undue injury to any party, including the government; or (2) the public officer gave any private party unwarranted benefits, advantage or preference in the discharge of his functions.An accused may be charged under either modeor under both should both modes concur.Additionally, Section 3(e) poses the standard of manifest partiality, evident bad faith or gross inexcusable negligence before liability can be had under the provision. Manifest partiality is characterized by a clear, notorious or plain inclination or predilection to favor one side rather than the other.Evident bad faith connotes a manifest deliberate intent on the part of the accused to do wrong or cause damage.Gross inexcusable negligence is defined as negligence characterized by the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally with a conscious indifference to consequences insofar as other persons may be affected. Mere bad faith or partiality and negligenceper seare not enough for one to be held liable under the law since the act of bad faith or partiality must in the first place be evident or manifest, respectively, while the negligent deed should both be gross and inexcusable. The standard of culpability imposed by Section 3 of R.A. No. 3019 is quite high which, in this case, was not hurdled by the evidence presented against Constantino. The prosecution failed to satisfy the requisite proof to demonstrate Constantinos guilt beyond reasonable doubt. While Constantino should have exercised more prudence when he transacted with Norlovanian Corporation, he could not however be held liable for "gross inexcusable negligence" as contemplated in R.A. No. 3019. Indeed, in the earlier case ofConstantino v. Desierto,the Court had already made an express finding that petitioner Constantino did not violate the mandate of Resolution No. 21 but instead merely carried out its directive. The controversy in ofConstantino v. Desierto arose from the same transaction entered into between Constantino and Norlovanian Corporation and involved the same subject matter as in the case at bar. Constantino in the latter case was also acquitted from the administrative charges, the Court found that the evidence against him was not enough to warrant his dismissal from service on the grounds of grave misconduct, conduct prejudicial to the best interest of the service and gross neglect of duty. Although the instant case involves a criminal charge whereasConstantinoinvolved an administrative charge, still the findings in the latter case are binding herein because the same set of facts are the subject of both cases.The dictum therein laid down became the law of the case and what was once irrevocably established as the controlling legal rule or decision continues to be binding between the same parties as long as the facts on which the decision was predicated continue to be the facts of the case before the court. Hence, the binding effect and enforceability of that dictum can no longer be resurrected anew since such issue had already been resolved and finally laid to rest, if not by the principle ofres judicata, at least by conclusiveness of judgment.It is likewise clear from the decision of the Court inConstantinothat the level of proof required in administrative cases which is substantial evidence was not even met. The same evidence is again before the Court in connection with the appeal in the criminal case. The same evidence cannot with greater reason satisfy the higher standard in criminal cases such as the present case which is evidence beyond reasonable doubt.

Preventive SuspensionJOSON vs EXECUTIVE SECRETARY

GR no. 131255May 20, 1998By Cybill

Facts:On Sept. 17, 1996, some SB members of Nueva Ecija filed with the Office of the President (FV Ramos) a letter-complaint charging Gov. Edno Joson with grave misconduct and abuse of authority. They allege that in the morning if Sept. 12, 1996, they were at the session hall of the provincial capitol for a scheduled session of the sangguniang Panlalawigan when Joson Belligerently barged in to the hall, kicked the doors and chairs and uttered threatening words at them; and that Joson was with his private security which were men with firearms who encircled the area during the incident. They claim that this incident is an offshoot of their resistance to a pending legislative measure supported by the petitioner that the province of NE obtain a loan of P 150 M at PNB.The President acted on the complaint (without verification requirements required by law) by noting that the use of force, intimidation, or armed followers were unjustificed and instructed DILG Sec. Barbers to take preemptive and investigative actions. Sec. Barbers directed the petitioner to sub,it an answer but Joson failed to submit after asking for several extension which was granted by the DILG amounting to a total of 60days (15 days is required by law to submit an answer). On April 22, 1997, Usec Sanchez, then acting secretary issued an order declaring Joson in default of answering and to have waived his right to present evidence. 2 days later, Josons counsel entered appearance causing Usec Sanchez to reconsider his order and gave petitioner, for the last time, 15 days to file his answer. But still Joson failed to file an answer. The order of default was thus reinstated.Joson then filed a Motion to Dismiss alleging that the complaint was not verified and that the DILG has no jurisdiction over the case.On July 11, 1997, on recommendation of DILG Sec. Barbers, Executive Secretary Torres issued an oreder, by authority of the President, placing Joson under preventive suspension for 60 days pending investigation of the charges against him. Vice-Governor Tinio of NE was designated as Acting Governor. Joson filed a petition for certiorari and prohibition with the CA challenging the order of preventive suspension and the order of default. Joson also filed, among others, a Motion to Conduct Formal Investigation pursuant to the provisions of the LGC and Rule 7 of Administrative Order No. 23.The petition for certiorari with the CA was later dismissed. The Motion to Conduct Formal Investigation with the DILG was also denied. The DILG Secretary found the affidavits of complainants witnesses to be more natural, reasonable, and probable than those of Josons. The Exec. Sec., by authority of the Pres., adopted the findings and recommendation of the DILG and imposed on the petitioner the penalty of suspension from the office for 6 months without pay. The SC, however, issued a TRO enjoining the implementation of said order. That notwithstanding such, Tinio was installed as Acting Governor.Issue No. 1:Whether the DILG Secretary had jurisdiction over the case?Held:Yes. Jurisdiction over administrative disciplinary actions against elective local officials is lodged in two authorities: 1) the Disciplining Authority and 2)the Investigating Authority. Pursuant to Sec. 2 and 3 of AO No. 23, the Disciplining Authority is the President, whether acting by himself or through the Exec. Secretary. The DILG is the Investigating Auhtority, who may act by himself or constitute an Investigating Committee. He is not, however, the exclusive Investigating Authority for the DILG Sec. may designate a Special Investigating Committee.The power of the Pres. over administrative disciplinary cases against local officials is derived from his power of general supervision over local governments (Sec. 4 Art. X 1987 Constitution). And the power of supervision means overseeing or authority of an officer to see that subordinate officers perform their duties. If the subordinate officers fail or neglect to fulfill their duties, the official may take such step or action as prescribed by law to make them perform their duties. The Presidents power to general supervision means no more than the power to ensure that laws are faithfully executed, or that subordinate officers act within the law. Supervision is not incompatible with discipline. This power must be construed to authorize the President to order an investigation of the act or conduct of local officials when in his opinion the good of the public service requires. A.O. No. 23 delegates the power to investigate to the DILG or a Special Investigating Committee, as may be constituted by the Disciplining Authority. This is not undue delegation, contrary to petitioners claim. The President remains the Disciplining Authority. And the power of the DILG to investigate administrative complaints is based on the alter-ego principle or the doctrine of qualified political agency. Under this doctrine, all executive and administrative organizations are adjuncts of the Exec. Dept., the heads of which are assistants and agents of the President. And this doctrine is corollary to the control power of the President as provided in the Constitution. The procedure under the LGC and A.O. No. 23, however, is that when an administrative complaint is filed, the Disciplining Authority shall issue an order requiring the respondent to submit his verified answer within 15 days from notice. And upon filing of the answer, the Disciplining Authority shall refer the case to the Investigating Authority for investigation. In the case at bar, the Office of the President did not comply with this requirement since it should have first required petitioner to file his answer and this, together with the complaint, to be referred to the Investigating Authority. Be that as it may, this procedural lapse is not fatal. The filing of the answer is necessary merely to enable the President to make a preliminary assessment of the case. The President found the complaint sufficient in form and substance to warrant its further investigation. The judgment of the President on the matter is entitled to respect in the absence of grave abuse of discretion.Issue No. 2: Whether the DILG Sec. erred in recommending to the Discipling Authority the preventive suspension of petitioner during the investigation.Held:No. Preventive suspension is authorized under Sec. 63 of the LGC. It may be imposed by the Disciplining Authority at any time (a) after the issues are joined; (b) when the evidence of guilt is strong; and (c) given the gravity of the offense, there is great probability that the respondent, who continues to hold office, could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence .Exec. Sec. Torres found that all requisites for the imposition of preventive suspension had been complied with. Petitioners failure to file his answer despite several opportunities given him was construed as a waiver of his right to file answer and present evidence; and as a result of this waiver, the issues were deemed to have been joined. It was also found that the evidence of petitioners guilt was strong and that his continuance in office during the pendency of the case could influence the witnesses and pose a threat to the safety and integrity of the evidence against him.Issue No. 3: Whether the Resolution finding petitioner guilty and imposing the 6-monthsuspension is valid.Held: Yes. Settled is the rule that in administrative proceedings, technical rules of procedure and evidence are not strictly applied. The essence of due process is to be found in the reasonable opportunity to be heard and to submit evidence one may have in support of ones defense. To be heard does not only mean verbal arguments in court; one may be heard also through pleadings. Where opportunity to be heard, either through oral arguments or pleadings, is accorded, there is no denial of due process. Thus, when petitioner failed to submit his position paper as directed and insisted for the conduct formal investigation, he was not denied of his right of procedural process.Alvin Garcia vs Hon. Arturo MojicaGR No. 139043September 10, 1999Facts:On May 7, 1998, petitioner, in his capacity as Cebu City mayor, signed a contract with F.E. Zuellig for the supply of asphalt to the city. The contract covers the period 1998-2001, which period was to commence on September 1998 when the first delivery should have been made by F.E. Zuellig.Sometime in March 1999, news reports came out regarding the alleged anomalous purchase of asphalt by Cebu City, through the contract signed by petitioner. This prompted the Office of the Ombudsman (Visayas) to conduct an inquiry into the matter.Respondent Jesus Rodrigo T. Tagaan, special prosecution officer of the Office of the Ombudsman, was assigned to conduct the inquiry, docketed as INQ-VIS-99-0132. After his investigation, he recommended that the said inquiry be upgraded to criminal and administrative cases against petitioner and the other city officials involved. Respondent Arturo C. Mojica, Deputy Ombudsman for the Visayas, approved this recommendation.In a memorandum dated June 22, 1999, respondent Allan Francisco S. Garciano, the graft investigating officer to whom the case was raffled for investigation, recommended the preventive suspension of petitioner and the others. Two days later, or on June 24, 1999, the affidavit-complaint against petitioner was filed. The following day, on June 25, 1999, the Office of the Ombudsman issued the questioned preventive suspension order. On June 29, 1999, petitioner filed a motion for reconsideration of said order, which motion was denied in an order dated July 5, 1999.Issues:1. Whether Garcia may be held administratively liable?2. Whether the Ombudsman was stripped of its powers by virtue of the Local Government Code?3. Is the preventive suspension of petitioner based on strong evidence as required by law?Held:1. No. As previously held, a reelected local official may not be held administratively accountable for misconduct committed during his prior term of office. The rationale is that when the electorate put him back into office, it is presumed that it did so with full knowledge of his life and character, including his past misconduct. If, armed with such knowledge, it still reelects him, then such is considered a condonation of his past misdeeds.However, in the present case, respondents point out that the contract entered into by petitioner with F.E. Zuellig was signed just 4 days before the date of the elections. It was not made an issue during the election, and so the electorate could not be said to have voted for petitioner with knowledge of this particular aspect of his life and character.Petitioner can no longer be held administratively liable for an act done during his previous term. The agreement between petitioner and F.E. Zuellig was perfected on the date the contract was signed, during petitioners prior term. At that moment, petitioner already acceded to the terms of the contract, including stipulations now alleged to be prejudicial to the city government. Thus, any culpability petitioner may have in signing the contract already became extant on the day the contract was signed. It hardly matters that the deliveries under the contract are supposed to have been made months later.While petitioner can no longer be held administratively liable for signing the contract with F. E. Zuellig, this should not prejudice the filing of any case, other than administrative, against petitioner. The ruling does not mean the total exoneration of petitioners wrongdoing, if any, that might have been committed in signing the subject contract. The ruling is now limited to the question of his administrative liability therefore, and it is our considered view that he may not.2. No. There is nothing in the LGC to indicate that it has repealed, whether expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the specific matter in question are not so inconsistent, let alone irreconcilable, as to compel us to only uphold one and strike down the other. The decision of the Ombudsman (6 month suspension) will prevail over the LGC (60day suspension) if the evidence of guilt is strong. SEC. 24. Preventive Suspension. The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondents continued stay in office may prejudice the case filed against him.The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided.The power to preventively suspend is available not only to the Ombudsman but also to the Deputy Ombudsman. In this case, petitioner was preventively suspended and ordered to cease and desist from holding office for the entire period of six months, which is the maximum provided by law.Administrative complaints commenced under the Ombudsman Law are distinct from those initiated under the Local Government Code. Respondents point out that the shorter period of suspension under the Local Government Code is intended to limit the period of suspension that may be imposed by a mayor, a governor, or the President, who may be motivated by partisan political considerations. In contrast the Ombudsman, who can impose a longer period of preventive suspension, is not likely to be similarly motivated because it is a constitutional body. But the petition is hereby GRANTED insofar as it seeks to declare that respondents committed grave abuse of discretion concerning the period of preventive suspension imposed on petitioner, which is the maximum of six months, it appearing that 24 days the number of days from the date petitioner was suspended on June 25, 1999, to the date of our status quo order on July 19, 1999 were sufficient for the purpose. Accordingly, petitioners preventive suspension, embodied in the order of respondent Deputy Ombudsman, dated June 25, 1999, should now be, as it is hereby, LIFTED immediately.3. Yes. Garciano recommended that petitioner be preventively suspended, based on an initial investigation purportedly showing: (1) the contract for supply of asphalt to Cebu City was designed to favor F.E. Zuellig, (2) the amount quoted in the contract was too expensive compared to the amount for which asphalt may be bought from local suppliers such as Shell and Petron, particularly considering that the amount was fixed in dollars and was payable in pesos, thus exposing the city government to the risks attendant to a fluctuating exchange rate, and (3) the interest of the city under the contract is not protected by adequate security. These findings were based on the contract itself and on letters from Bitumex and Credit Lyonnais. There were also letters from Shell and Petron that were replies to the Office of the Ombudsmans (Visayas) inquiry on whether or not they could supply Cebu City with asphalt and on what terms.Given these findings, we cannot say now that there is no evidence sufficiently strong to justify the imposition of preventive suspension against petitioner. But considering its purpose and the circumstances in the case brought before us, it does appear to us that the imposition of the maximum period of six months is unwarranted.NOTE: Preventive Suspension was valid here, but the term of 6months preventive suspension is too much as claimed by the Supreme Court for an investigation and inquiry on the case.ALDOVINO vs COMELECDec 23, 2009Facts:The respondent Commission on Elections (COMELEC) ruled that preventive suspension is an effective interruption because it renders the suspended public official unable to provide complete service for the full term; thus, such term should not be counted for the purpose of the three-term limit rule. The present petition seeks to annul and set aside this COMELEC ruling for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction. Wilfredo F. Asilo (Asilo) was elected councilor of Lucena City for three consecutive terms: for the 1998-2001, 2001-2004, and 2004-2007 terms, respectively. In September 2005 or during his 2004-2007 term of office, the Sandiganbayan preventively suspended him for 90 days in relation with a criminal case he then faced.This Court, however, subsequently lifted the Sandiganbayans suspension order; hence, he resumed performing the functions of his office and finished his term.In the 2007 election, Asilo filed his certificat