Category: LATEST SUPREME COURT CASES


CASE 2011-0163: MIGUEL DELA PENA BARAIRO VS. OFFICE OF THE PRESIDENT and MST MARINE SERVICES (PHILS.), INC.  (G.R. NO. 189314, 15 JUNE 2011) SUBJECT: APPEAL OF DOLE DECISION TO OFFICE OF THE PRESIDENT ELIMINATED. (BRIEF TITLE: BARAIRO VS. OFFICE OF THE PRESIDENT.)

 

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SUBJECT/DOCTRINE/DIGEST:

PETITIONER SIGNED A CONTRACT AS CHIEF MATE OF M/T HARUNA FOR 6 MONTHS. AFTER ONE WEEK HE  DISEMBARKED ON GROUND THAT HIS BOARDING M/T HARUNA WAS A SEA TRIAL ONLY. MST, HIS MANNING AGENT, FILED CASE AT POEA. POEA SUSPENDED PETITIONER FOR ONE YEAR FOR BREACH OF CONTRACT. ON APPEAL, DOLE REDUCED SUSPENSION TO SIX  MONTHS. PETITIONER APPEALLED  TO OP. OP DISMISSED THE CASE ON THE GROUND THAT APPEAL CAN BE BROUGHT TO THEM ONLY IF CASE INVOLVES NATIONAL SECURITY.

 

WAS APPEAL TO OP PROPER?

 

NO.  APPEALS TO THE OP IN LABOR CASES HAVE BEEN ELIMINATED, EXCEPT THOSE INVOLVING NATIONAL INTEREST OVER WHICH THE PRESIDENT MAY ASSUME JURISDICTION.

 

Following settled jurisprudence, the proper remedy to question the decisions or orders of the Secretary of Labor is via Petition for Certiorari under Rule 65, not via an appeal to the OP.   For appeals to the OP in labor cases have indeed been eliminated, except those involving national interest over which the President may assume jurisdiction.   The rationale behind this development is mirrored in the OP’s Resolution of June 26, 2009 the pertinent portion of which reads:

. . . [T] he assailed DOLE’s Orders were both issued by Undersecretary Danilo P. Cruz under the authority of the DOLE Secretary who is the alter ego of the President.  Under the “Doctrine of Qualified Political Agency,” a corollary   rule to the control powers of the President, all executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive is required by Constitution or law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the Secretaries of such departments, performed and promulgated in the regular course of business are, unless disapproved or reprobated by the Chief Executive presumptively the acts of the Chief Executive.[1][10] (emphasis and underscoring supplied)

It cannot be gainsaid that petitioner’s case does not involve national interest. 

 

 

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THIRD DIVISION

MIGUEL DELA PENA BARAIRO,                                     Petitioner,         

 

 

                  - versus -

 

 

 

OFFICE OF THE PRESIDENT and MST MARINE SERVICES (PHILS.), INC.

                                 Respondent.

G.R. No.   189314 Present:

 

CARPIO MORALES, J., 

                       Chairperson,

BRION,

BERSAMIN,

VILLARAMA, JR., and

SERENO, JJ.  

 

 

Promulgated:

                            

June 15, 2011

 

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D E C I S I O N

 

CARPIO MORALES, J.:

Miguel Barairo (petitioner) was hired[2][1] on June 29, 2004 by respondent MST Marine Services (Phils.) Inc., (MST) for its principal, TSM International, Ltd., as Chief Mate of the vessel Maritina, for a contract period of six months.  He boarded the vessel and discharged his duties on July 23, 2004, but was relieved[3][2] on August 28, 2004 ostensibly for transfer to another vessel, Solar.  Petitioner thus disembarked inManila on August 29, 2004.

Petitioner was later to claim that he was not paid the promised “stand-by fee” in lieu of salary that he was to receive while awaiting transfer to another vessel as in fact the transfer never materialized.

On October 20, 2004, petitioner signed a new Contract of Employment[4][3] for a six-month deployment as Chief Mate in a newly-built Japanese vessel, M/T Haruna.  He was paid a one-month “standby fee” in connection with the Maritina contract. 

Petitioner boarded the M/T Haruna on October 31, 2004 but he disembarked a week later as MST claimed that his boarding of M/T Haruna was a “sea trial” which, MST maintains, was priorly made known to him on a “stand-by” fee.  MST soon informed petitioner that he would be redeployed to the M/T Haruna on November 30, 2004, but petitioner refused, prompting MST to file a complaint[5][4] for breach of contract against him before the Philippine Overseas Employment Administration (POEA). 

Petitioner claimed, however, that he was placed on “forced vacation” when he was made to disembark from the M/T Haruna, and that not wanting to experience a repetition of the previous “termination” of his employment aboard the Maritina, he refused to be redeployed to the M/T Haruna.

By Order[6][5] of April 5, 2006, then POEA Administrator Rosalinda D. Baldoz penalized petitioner with one year suspension from overseas deployment upon a finding that his refusal to complete his contract aboard the M/T Haruna constituted a breach thereof.

On appeal by petitioner, the Secretary of Labor, by Order[7][6] of September 22, 2006, noting that it was petitioner’s first offense, modified the POEA Order by shortening the period of suspension from one year to six months.

The Office of the President (OP), by Decision[8][7] of November 26, 2007, dismissed petitioner’s appeal for lack of jurisdiction, citing National Federation of Labor v. Laguesma.[9][8] 

The OP held that appeals to it in labor cases, except those involving national interest, have been eliminated.  Petitioner’s motion for partial reconsideration was denied by Resolution[10][9] of June 26, 2009, hence, the present petition.

Following settled jurisprudence, the proper remedy to question the decisions or orders of the Secretary of Labor is via Petition for Certiorari under Rule 65, not via an appeal to the OP.   For appeals to the OP in labor cases have indeed been eliminated, except those involving national interest over which the President may assume jurisdiction.   The rationale behind this development is mirrored in the OP’s Resolution of June 26, 2009 the pertinent portion of which reads:

. . . [T] he assailed DOLE’s Orders were both issued by Undersecretary Danilo P. Cruz under the authority of the DOLE Secretary who is the alter ego of the President.  Under the “Doctrine of Qualified Political Agency,” a corollary   rule to the control powers of the President, all executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive is required by Constitution or law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the Secretaries of such departments, performed and promulgated in the regular course of business are, unless disapproved or reprobated by the Chief Executive presumptively the acts of the Chief Executive.[11][10] (emphasis and underscoring supplied)

It cannot be gainsaid that petitioner’s case does not involve national interest. 

Petitioner’s appeal of the Secretary of Labor’s Decision to the Office of the President did not toll the running of the period, hence, the assailed Decisions of the Secretary of Labor are deemed to have attained finality.      

Although appeal is an essential part of our judicial process, it has been held, time and again, that the right thereto is not a natural right or a part of due process but is merely a statutory privilege. Thus, the perfection of an appeal in the manner and within the period prescribed by law is not only mandatory but also jurisdictional and failure of a party to conform to the rules regarding appeal will render the judgment final and executory. Once a decision attains finality, it becomes the law of the case irrespective of whether the decision is erroneous or not and no court – not even the Supreme Court – has the power to revise, review, change or alter the same. The basic rule of finality of judgment is grounded on the fundamental principle of public policy and sound practice that, at the risk of occasional error, the judgment of courts and the award of quasi-judicial agencies must become final at some definite date fixed by law.[12][11] (underscoring in the original, emphasis supplied)

At all events, on the merits, the petition just the same fails. 

As found by the POEA Administrator and  the Secretary of Labor, through Undersecretary Danilo P. Cruz,  petitioner’s refusal to board the M/T Haruna on November 30, 2004 constituted unjustified breach of  his contract of employment under Section 1 (A-2) Rule II,  Part VI  [sic] of the POEA Seabased Rules and Regulations.[13][12]  That petitioner believed that respondent company violated his rights when the period of his earlier Maritina contract was not followed and his “stand-by fees” were not fully paid did not justify his refusal to abide by the valid and existing Haruna contract requiring him to serve aboard M/T Haruna.  For, as noted in the assailed DOLE Order, “if petitioner’s rights has been violated as he claims, he has various remedies under the contract which he did not avail of.” 

Parenthetically, the Undersecretary of Labor declared that “the real reason [petitioner] refused to re-join Haruna on November 30, 2004, is that he left the Philippines on November 29, 2004 to join MT Adriatiki, a vessel of another manning agency,” which declaration petitioner has not refuted. 

          WHEREFORE, the petition is DENIED

          SO ORDERED.

 

 

 

 

                                                CONCHITA CARPIO MORALES

                                                              Associate Justice

                                                                 

 

 

 

 

WE CONCUR:

 

 

 

ARTURO D. BRION

Associate Justice

LUCAS P. BERSAMIN

Associate Justice

 

 

 

 

MARTIN S. VILLARAMA, JR.

Associate Justice

 

 

 

MARIA LOURDES P. A. SERENO

Associate Justice

 

 

ATTESTATION

 

 

          I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

                                                         

                                  CONCHITA CARPIO MORALES

                                      Associate Justice

                                   Chairperson

 

 

CERTIFICATION

 

          Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I certify that the conclusions in the above decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

                                                     RENATO C. CORONA

                                                                Chief Justice



[1][10]          Vide June 26, 2009 Resolution of the Office of the President, id. at 105-108 at 107.

[2][1]   Vide Contract of Employment, rollo, p. 110.

[3][2]  Id. at 112.

[4][3]   Ibid.

[5][4]   Vide Complaint-Affidavit of Captain Alfonso R. del Castillo, id. at 113-114.

[6][5]  Id. at 132-134.

[7][6]  Id. at 174-177.   Penned by Undersecretary Danilo P. Cruz.

[8][7]  Id. at 55-66.  Penned by Undersecretary Pilita P. Quizon-Venturanza.

[9][8]   G.R. No. 123426, March 10, 1999, 304 SCRA 405.

[10][9] Rollo, pp. 105-108.  Penned by Undersecretary Pilita P. Quizon-Venturanza.

[11][10]         Vide June 26, 2009 Resolution of the Office of the President, id. at 105-108 at 107.

[12][11]         Land Bank of the Philippines v. Court of Appeals, G.R. No. 190660,  April 11, 2011 citing Zamboanga Forest Managers Corp. v. New Pacific Timber and Supply Co., et al., G.R. No. 143275, 399 SCRA 376, 385.

[13][12]      RULE II
Disciplinary Action Against Seafarers

SECTION 1.    Grounds for Disciplinary Action and their Penalties. — Commission by a seafarer of any of the offenses enumerated below or of similar offenses shall be a ground for disciplinary action for which the corresponding penalty shall be imposed:

A.    Pre-Employment Offenses

1.    Submission/furnishing or using false information or documents or any form of misrepresentation for purpose of job application or employment.

1st Offense: One year to two years suspension from participation in the overseas employment program

2nd Offense: Two years and one day suspension from participation in the overseas employment program to Delisting from the POEA Registry

2.    Unjust refusal to join ship after all employment and travel documents have been duly approved by the appropriate government agencies.

1st Offense: One year to two years suspension from participation in the overseas employment program

2nd offense: Two years and one day suspension from participation in the overseas employment program to Delisting from the POEA Registry (emphasis supplied)

CASE 2011-0162: PHILIPPINE ARMY VS. SPOUSES MAJOR CONSTANCIO PAMITTAN (RET.) AND  LEONOR PAMITTAN, SPOUSES ALBERTO TALINIO AND MARIA CHONA P. TALINIO, SPOUSES T/SGT. MELCHOR BACULI AND LAARNI BACULI, SPOUSES S/SGT. JUAN PALASIGUE AND MARILOU PALASIGUE, SPOUSES GRANT PAJARILLO AND FRANCES PAJARILLO, SPOUSES M/SGT. EDGAR ANOG AND ZORAIDA ANOG, AND SPOUSES 2LT. MELITO PAPA AND PINKY PAPA, FOR THEMSELVES AND FOR OTHER OCCUPANTS OF SITIO SAN CARLOS, UPI, GAMU, ISABELA, BY WAY OF CLASS SUIT (G.R. NO. 187326, 15 JUNE 2011,  CARPIO, J.) SUBJECTS: MOTION TO DISMISS; INSUFFICIENT CAUSE OF ACTION; STATE AS OWNER CAN USE ITS PROPERTY (BRIEF TITLE: PHILIPPINE ARMY VS. PAMITAN)

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SUBJECT/DOCTRINE/DIGEST:

 

RESPONDENTS WERE OCCUPYING AN ARMY RESERVATION LAND. PETITIONERS DEMOLISHED THEIR HOUSES. RESPONDENTS SUED THE PHILIPPINE ARMY AND THOSE WHO TOOK PART IN THE DEMOLITION. RTC DISMISSED THE CASE. CA REVERSED AND ORDERED TRIAL.

 

WAS THE DISMISSAL BY RTC IN ORDER?

 

YES. THE STATE, AS OWNER HAS THE RIGHT TO USE THE SUBJECT PROPERTY. THERE IS NO CAUSE OF ACTION FOR LAWFUL ACTS DONE BY THE OWNER ON HIS PROPERTY ALTHOUGH SUCH ACTS MAY CAUSE INCIDENTAL DAMAGE OR LOSS TO ANOTHER.

Thus, the RTC dismissed the complaint for lack of cause of action considering that the State as the owner has the right to use the subject property. Citing Custodio v. Court of Appeals,18 the RTC held that there is no cause of action for lawful acts done by the owner on his property although such acts may cause incidental damage or loss to another.

Besides, the RTC also held that petitioners cannot be held personally accountable for the demolition of the dwellings since such act was done in connection with their official duties in carrying out the AFP program “Oplan Linis.” The RTC noted that the demolition was done only after previous demands to vacate were ignored by respondents. There was no showing that such acts constitute ultra vires acts nor was there a showing of bad faith on the

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WHAT IS GENERALLY THE BASIS OF A MOTION TO DISMISS?

FAILURE TO STATE A CAUSE OF ACTION.

 

WHAT ARE ELEMENTS OF FAILURE TO STATE CAUSE OF ACTION?

 

  1. 1.   IT ADMITS THE TRUTH OF THE ALLEGATIONS IN THE COMPLAINT;

 

  1. 2.   THE INSUFFICIENCY OF THE CAUSE OF ACTION MUST APPEAR ON THE FACE OF THE COMPLAINT.

 

IS THE COURT BOUND TO CONSIDER ONLY THOSE FACTS ADMIITED IN THE COMPLAINT.

 

NO. COURT CANNOT CONSIDER IMPOSSIBLE FACTS, FACTS INADMISSIBLE IN EVIDENCE, UNFOUNDED FACTS. IT CAN CONSIDER THE ANNEXES OF THE PLEADINGS OF THE PARTIES.

 

Generally, a motion to dismiss based on failure to state a cause of action hypothetically admits the truth of the allegations in the complaint and in order to sustain a dismissal based on lack of cause of action, the insufficiency of the cause of action must appear on the face of the complaint.10 However, this rule is not without exception. Thus, a motion to dismiss “does not admit allegations of which the court will take judicial notice are not true, nor does the rule apply to legally impossible facts, nor to facts inadmissible in evidence, nor to facts which appear by record or document included in the pleadings to be unfounded.”11 Indeed, in some cases, the court may also consider, in addition to the complaint, other pleadings submitted by the parties and the annexes or documents appended to it.12

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WERE THE OFFICERS INVOLVED IN THE DEMOLITON LIABLE?

NO. THEY WERE JUST PERFORMING THEIR DUTY. THE DEMOLITION WAS DONE ONLY AFTER DEMANDTO VACATE WAS IGNORED. THERE WAS NO SHOWING OF BAD FAITH.

Besides, the RTC also held that petitioners cannot be held personally accountable for the demolition of the dwellings since such act was done in connection with their official duties in carrying out the AFP program “Oplan Linis.” The RTC noted that the demolition was done only after previous demands to vacate were ignored by respondents. There was no showing that such acts constitute ultra vires acts nor was there a showing of bad faith on the part of petitioners.

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SECOND DIVISION

 

PHILIPPINE ARMY,                                                                                           G.R. No. 187326

5th Infantry Division, through

GEN. ALEXANDER YAPSING,                                                        Present:

LT. COL. NICANOR PENULIAR,

and LT. COL. FERNANDO PASION,                                             CARPIO, J., Chairperson,

Petitioners,                                                                                                                           LEONARDO-DE CASTRO,*

PERALTA,

ABAD, and

- versus –                                                                                                                               MENDOZA, JJ.

 

SPOUSES MAJOR CONSTANCIO

PAMITTAN (Ret.) and

LEONOR PAMITTAN,

SPOUSES ALBERTO TALINIO

and MARIA CHONA P. TALINIO,

SPOUSES T/SGT. MELCHOR BACULI

and LAARNI BACULI,

SPOUSES S/SGT. JUAN PALASIGUE

and MARILOU PALASIGUE,

SPOUSES GRANT PAJARILLO

and FRANCES PAJARILLO,

SPOUSES M/SGT. EDGAR ANOG

and ZORAIDA ANOG, and

SPOUSES 2LT. MELITO PAPA

and PINKY PAPA, for Themselves

and for Other Occupants of Sitio San Carlos,                               Promulgated:

Upi, Gamu, Isabela, by Way of Class Suit,

Respondents.                                                                                                        June 15, 2011

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D E C I S I O N

 

CARPIO, J.:

The Case

 

This petition for review1 assails the 15 January 2009 Decision2 and the 10 March 2009 Resolution3 of the Court of Appeals in CA-G.R. CV No. 89862. The Court of Appeals set aside the Orders dated 11 April 2007 and 19 June 2007 of the Regional Trial Court (RTC), Branch 18, Ilagan, Isabela in Civil Case No. 1377, and remanded the case to the RTC for further proceedings.

 

The Facts

On 7 July 2006, respondents filed a complaint for Damages, Injunction with Prayer for a Writ of Preliminary Mandatory Injunction, and Temporary Restraining Order against petitioners. Petitioners Gen. Yapsing, Lt. Col. Penuliar and Lt. Col. Pasion were the Commanding General of the 5th Infantry Division, Philippine Army, Task Force Bantay Commander, and Camp Commander of Camp Melchor F. dela Cruz, 5th Infantry Division, PA, Headquarters in Upi, Gamu, Isabela, respectively.

 

Respondents averred that they have been occupying and residing on the land which is part of the Breeding Station of the Department of Agriculture (DA), located in Sitio San Carlos, Barangay Upi in Gamu, Isabela for the past twenty (20) to thirty (30) years. Their occupation of the land was allegedly pursuant to a prior arrangement between the DA and the then higher authorities in Camp Melchor F. dela Cruz, on the condition that the DA retains ownership over the land. Respondents averred that on 3 July 2006, upon orders of petitioners, active elements of the 5th Infantry Division, PA, tore down, demolished, and dismantled their houses. Respondents, through their counsel, demanded in writing that petitioners and their subordinates cease and desist from further demolishing their dwellings; otherwise, they would sue for damages. On 4 July 2006, the demolition crew continued tearing down other houses despite the respondents’ demand letter claiming that the demolition was illegal because of lack of a court order.

 

On 12 July 2006, the RTC issued a temporary restraining order, enjoining and restraining for seventy two (72) hours petitioners and their agents or representatives from further continuing with the demolition.

 

The Office of the Solicitor General (OSG) moved to dismiss the complaint, arguing that: (1) the complaint states no cause of action; (2) the RTC has no jurisdiction to hear the case; and (3) plaintiffs (respondents herein) are not entitled to a writ of preliminary injunction and/or temporary restraining order.4

 

On 7 November 2006, the OSG filed its Memorandum5 alleging that:

 

1.      On 8 June 1990, the Armed Forces of the Philippines (AFP) laid down its policy against squatting and unauthorized construction of residential houses and facilities inside military reservations. Major Service Commanders and Area Commanders of all military reservations were directed to implement the said policy within their respective commands.

 

2.      Sometime in 1994, the Commanding Officer, 5th Infantry Division, Camp Melchor dela Cruz, Upi, Gamu Isabela entered into a Construction Agreement with herein plaintiffs most of whom were in active service of the military. (Annexes “1” to “4”)

 

3.      By virtue of the said agreement, plaintiffs were granted construction permits subject to certain conditions stated therein, one of which is:

 

The applicant shall be mandated to vacate the residential unit upon retirement from the military service;

 

The area subject of this permit shall be returned to the control of theCampCommanderin case the same is needed for military use in line with the base development plan thirty (30) days from notice of theCampCommander.

 

4.      On August 12, 2004, Commanding Officer Lt. Col. Felix F. Calinag, in compliance with the directive of the AFP General Headquarters on squatting, otherwise known to as “Oplan Linis,” ordered all military personnel and civilians unlawfully residing inside Camp dela Cruz to vacate their residences within the soonest possible time;

 

5.      As a result of the aforementioned directive, a large number of military personnel and civilians who had built their houses within the camp, voluntarily demolished the same and left the camp;

 

6.      On April 7, 2006, demands were again made on those parties, including herein plaintiffs, who refused to vacate their premises. These demands were reiterated in June 26, 2006 on all the plaintiffs (Annexes “5” to “11”)

 

7.      On July 3, 2006, or after more than three (3) months from receipt of plaintiff’s notice to vacate, the command effected the demolition of the structures in the subject property. Manifestly, defendants effected the demolition in accord with the terms and conditions agreed upon by plaintiffs and the government under the subject construction permits. Such demolition was effected only after reasonable time was given to all plaintiffs to remove their existing structures.6

 

 

On 11 April 2007, the RTC issued an order7 granting the motion to dismiss. Respondents moved for reconsideration, which the RTC denied in its order8 dated 19 June 2007.

 

Respondents appealed to the Court of Appeals.

 

The Ruling of the Court of Appeals

 

On 15 January 2009, the Court of Appeals promulgated its decision, reversing and setting aside the assailed orders of the RTC. The dispositive portion of the Court of Appeals’ decision reads:

 

WHEREFORE, premises considered, the appealed Orders dated April 11, 2007 and June 19, 2007 of the RTC, Branch 18, Ilagan, Isabela in Civil Case No. 1377 [are] REVERSED and SET ASIDE. This case is REMANDED to the RTC, Branch 18, Ilagan, Isabela for further proceedings. In order to maintain the status quo in this case, let a writ of preliminary injunction be issued enjoining defendants-appellants Ge. Yapsing, Lt. Col. Penuliar and Lt. Col. Pasion and/or their agents and/or representatives from committing further acts of demolition and/or dispossession. A bond is hereby fixed in the amount of P880,000.00 to be executed by plaintiffs-appellants to defendants-appellees to the effect that the former will pay the latter all damages which the latter may sustain by reason of this writ should the court finally decide that the former are not entitled thereto.

 

SO ORDERED.9

 

The Court of Appeals ruled that to determine whether petitioners acted within the scope of their military authority in ordering the demolition of respondents’ houses on the subject property and whether the RTC has jurisdiction over the subject matter of the case requires the resolution of the issue of ownership of the subject property. Furthermore, the Court of Appeals held that the determination of whether the subject property belongs to the DA or the Armed Forces of thePhilippinescould be best resolved in a full blown hearing on the merits before the lower court.

 

Petitioners filed a motion for reconsideration, which the Court of Appeals denied in its Resolution dated 10 March 2009.

 

Hence, this petition.

 

The Issue

 

The sole issue for resolution is whether the Court of Appeals erred in setting aside the orders of the RTC and remanding the case to the RTC for a full-blown trial.

The Ruling of the Court

 

We find the petition meritorious.

 

 

Generally, a motion to dismiss based on failure to state a cause of action hypothetically admits the truth of the allegations in the complaint and in order to sustain a dismissal based on lack of cause of action, the insufficiency of the cause of action must appear on the face of the complaint.10 However, this rule is not without exception. Thus, a motion to dismiss “does not admit allegations of which the court will take judicial notice are not true, nor does the rule apply to legally impossible facts, nor to facts inadmissible in evidence, nor to facts which appear by record or document included in the pleadings to be unfounded.”11 Indeed, in some cases, the court may also consider, in addition to the complaint, other pleadings submitted by the parties and the annexes or documents appended to it.12

 

In this case, the RTC considered other pleadings, aside from the complaint, filed by both parties, including the annexes in determining the sufficiency of the cause of action.13

It is undisputed that respondents neither own nor lease the land on which they constructed their houses. Nevertheless, respondents insist that the demolition of their houses upon orders of petitioners was illegal because their houses stood on property which forms part of the DA Breeding Station and not within the military reservation. However, as found by the RTC, respondents’ contention is belied by the survey report of the Department of Environment and Natural Resources (DENR). In its Order dated 11 April 2007, the RTC found that contrary to respondents’ allegations in their complaint, the land occupied by respondents is within the military reservation based on the survey conducted by the DENR. In the Memorandum14 dated 7 June 2005 of the Assistant Chief of the Surveys Division addressed to the Regional Technical Director for Lands of the DENR, it was stated that on 18 May 2005, the Survey Team proceeded to Upi, Gamu, Isabela to conduct a verification survey of the boundary of the military reservation and the DA Stock Farm to determine the exact location of the 82 household dwellers who were occupying the area subject of the verification survey. The Assistant Chief of the Surveys Division reported that the Survey Team found that the area occupied by the 82 household dwellers with an area of about 27,251 square meters is within the perimeter of the military reservation. The report stated:

 

 

 

 

 

 

Below is our findings:

1.      Facts gathered

a. Research of references in the DENR-LMS Records Unit are the following:

a.1 Certified Blue Print copy of PLS 965 approved February 18, 1916

a.2 Certified Blue print copy of SK-al-02-000361 approved May 23, 2000

a.3 certified Blue print copy of NR 122 approved December 15, 1958

 

b. The team started the survey and recovered four (4) old monuments identified as BBM No. 2 equals to corner 7of Lot 467 and corner 1 of Lot 468 both of PLS 965 and old B1 identified also as corners 11, 12, and 13 of Lot 1 NR 122 equivalent to corners 5, 6, and 7 of Lot 468 of PLS 965 respectively. BBM No. 2 is the most possible corners for us to start running a traverse going to the boundary between Isabela stock farm and the Military reservation. Corners 1 and 2 of Lot 467 PLS 965 to (Lot 1, NR 122) identical to corners 37 and 36 ofLot1, Ir 425 Proclamation No. 100 respectively.

 

After running our traverse we set the boundaries with the presence of DA representatives, Military representatives and also representatives from the household dwellers. As a result of our verification survey, there is a little discrepancy compared to existing boundaries but within allowable error. However, when we set boundaries between Military Reservation and DA Stock Farm, it was found that the area occupied by the 82 household dwellers with an area of 27,251 square meters more or less is within the perimeter of the Military Reservation. Attached herewith is a prepared blue print plan of the area surveyed together with the relative location occupied by dwellers which is attached for ready reference.15 (Emphasis supplied)

 

 

More importantly, respondents cannot deny that in 1994, they signed a “Construction Permit”16 giving them permission “to construct a residential house of semi-strong materials on a portion of the military reservation at Camp Melchor F. Dela Cruz, Upi, Gamu, Isabela” subject to certain conditions such as:

 

That the residential unit shall not be transferred to any other person without the consent of the Camp Commander/CO, HHSBn, 5ID, PA;

 

That the applicant shall be mandated to vacate the residential unit upon retirement from the military service;

 

That the area subject of this permit shall be returned to the control of the Camp Commander in case the same is needed for the military use in line with the base development plan thirty (30) days from notice of the Camp Commander.17 (Emphasis supplied)

Thus, the RTC dismissed the complaint for lack of cause of action considering that the State as the owner has the right to use the subject property. Citing Custodio v. Court of Appeals,18 the RTC held that there is no cause of action for lawful acts done by the owner on his property although such acts may cause incidental damage or loss to another.

Besides, the RTC also held that petitioners cannot be held personally accountable for the demolition of the dwellings since such act was done in connection with their official duties in carrying out the AFP program “Oplan Linis.” The RTC noted that the demolition was done only after previous demands to vacate were ignored by respondents. There was no showing that such acts constitute ultra vires acts nor was there a showing of bad faith on the part of petitioners.

 

Clearly, as found by the RTC, the evidence on record sufficiently defeats respondents’ claim that they are entitled to damages and thus, have no cause of action against petitioners.

 

WHEREFORE, we GRANT the petition. We SET ASIDE the 15 January 2009 Decision and the 10 March 2009 Resolution of the Court of Appeals in CA-G.R. CV No. 89862. We REINSTATE the Orders dated 11 April 2007 and 19 June 2007 of the Regional Trial Court, Branch 18, Ilagan, Isabela in Civil Case No. 1377.

 

SO ORDERED.

 

 

 

 

ANTONIO T. CARPIO

Associate Justice

 

WE CONCUR:

 

 

 

 

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

 

 

 

 

DIOSDADO M. PERALTA ROBERTO A. ABAD

Associate Justice Associate Justice

 

 

 

 

 

JOSE C. MENDOZA

Associate Justice

 

 

 

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

 

 

 

ANTONIO T. CARPIO

Associate Justice

Chairperson

 

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

 

 

 

RENATO C. CORONA

Chief Justice

 

 

 

 

 

 

* Designated additional member per Special Order No. 1006 dated 10 June 2011.

1Under Rule 45 of the 1997 Rules of Civil Procedure.

2Rollo, pp. 9-20. Penned by Associate Justice Remedios A. Salazar-Fernando, with Associate Justices Jose C. Reyes, Jr. and Normandie B. Pizarro, concurring.

3Id. at 22-23.

4Id. at 96-102.

5Id. at 125-132.

6Id. at 126-127.

7Id. at 155-159.

8Id. at 160-161.

9Id. at 19-20.

10East Asia Traders, Inc. v. Republic, G.R. No. 152947, 7 July 2004, 433 SCRA 716.

11Tan v. Director of Forestry, 210 Phil. 244, 255 (1983).

12Jimenez, Jr. v. Jordana, 486 Phil. 452 (2004); City of Cebu v. CA, 327 Phil. 799 (1996); Santiago v. Pioneer Savings & Loan Bank, 241 Phil. 113 (1988).

13Rollo, pp. 160-161; In its Order dated 19 June 2007, denying respondent’s motion for reconsideration, the RTC explained:

 

The rule on a motion to dismiss cited by the plaintiff while correct as a general rule is [not] without exceptions. In Marcopper Mining Corporation vs. Garcia, 143 SCRA 178, the Supreme Court ruled that the trial court can consider all the pleadings filed, including answers, motions and evidence then on record for purposes of resolving a motion to dismiss based on lack of cause of action.

 

In the case at bar, the Court had the opportunity to examine the merits of the complaint, the Motion to Dismiss, the Opposition to the Motion to Dismiss, the Memoranda of both parties and the annexes thereto. It is therefore logical for the Court to consider all the aforesaid pleadings in determining whether or not there was a sufficient cause of action in the plaintiffs’ complaint.

 

In another case, the Supreme Court ruled that where a motion to dismiss was heard with the submission of evidence, the Court cannot be limited by the rule that such motion admits the truth of the allegation in the complaint (Tan vs. Director of Forestry, 125 SCRA 302). It must be noted that in the case at bar, the motion to dismiss was set for hearing wherein answers/opposition were interposed and evidence introduced. In the course of the proceedings, the plaintiffs had the opportunity to present evidence in support of their allegations in their complaint. As a consequence, the plaintiffs are estopped from invoking the rule that to determine the sufficiency of a cause of action, only the facts alleged in the complaint must be considered.

14Id. at 144-145.

15Id.

16Id. at 78-81.

17Id.

18 323 Phil. 575 (1996).

 

CASE 2011-0161: JUDGE EDILBERTO G. ABSIN VS. EDGARDO A. MONTALLA (A.M. NO. P-10-2829, 21 JUNE 2011, PER CURIAM) BRIEF TITLE: JUDGE ABSIN VS. MONTALLA.

================================

SUBJECT/DOCTRINE/ DIGEST

 

STENOGRAPHER MONTALLA FAILED TO SUBMIT TSNs DESPITE SEVERAL DEMANDS. WHAT IS HIS LIABILITY?

FAILURE TO SUBMIT TSN IS GROSS NEGLECT OF DUTY. IT IS A GRAVE OFFENSE. PENALTY IS DISMISSAL.

Montalla should be reminded that it is the duty of the court stenographer who has attended a session of a court to immediately deliver to the clerk of court all the notes he has taken, the same to be attached to the record of the case.1 Precisely, Administrative Circular No. 24-902 was issued in order to minimize delay in the adjudication of cases as a great number of cases could not be decided or resolved promptly because of lack of TSNs. The circular required all stenographers to transcribe all stenographic notes and to attach the TSNs to the record of the case not later than 20 days from the time the notes are taken. The attaching may be done by putting all TSNs in a separate folder or envelope, which will then be joined to the record of the case.3 The circular also provided that the stenographer concerned shall accomplish a verified monthly certification as to compliance with this duty and in the absence of such certification or for failure and/or refusal to submit it, his salary shall be withheld.4

The Court has ruled, in a number of cases,5 that the failure to submit the TSNs within the period prescribed under Administrative Circular No. 24-90 constitutes gross neglect of duty. Gross neglect of duty is classified as a grave offense and punishable by dismissal even if for the first offense pursuant to Section 52(A)(2) of Rule IV of the Uniform Rules on Administrative Cases in the Civil Service.

================================

EN BANC

 

 

JUDGE EDILBERTO G. ABSIN, A.M. No. P-10-2829
Complainant,  

Present:

 

CORONA, C.J.,

CARPIO,

VELASCO, JR.,

LEONARDO-DE CASTRO,

BRION,

- versus – PERALTA,

BERSAMIN,

DELCASTILLO,

ABAD,

VILLARAMA, JR.,

PEREZ,

MENDOZA, and

SERENO, JJ.

EDGARDO A. MONTALLA,

Stenographer, Regional

Trial Court, Branch 29,

San Miguel, Zamboanga Promulgated:

Del Sur,

Respondent. June 21, 2011

x- – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – x

D E C I S I O N

 

 

PER CURIAM:

 

This administrative matter stemmed from a letter-complaint filed by Judge Edilberto G. Absin (Judge Absin), Presiding Judge of the Regional Trial Court, Branch 29, San Miguel, Zamboanga del Sur (RTC-Branch 29), charging respondent Edgardo A. Montalla (Montalla), stenographer of the same court, with neglect of duty in failing to submit the required transcripts of stenographic notes (TSNs) despite repeated reminders from the court.

 

In his letter-complaint dated 23 November 2009, Judge Absin alleged that in the Resolution dated 23 October 2009 issued by the Court of Appeals (CA) in CA-G.R. No. 01280-MIN (Heirs of Victoriano Magallanes, et al. v. Ernesto Pono and Crispina Pono), the CA noted that Montalla failed to submit signed copies of the TSNs taken on the following dates: (1) 13 October 2004 on the witness Maria Sabuero; (2) 11 January 2005 on the witness Rodolfo Omboy; (3) 26 April 2005 on the witness Rosalinda Magallanes; (4) 12 October 2005 on the witness Ernesto Pono; (5) 7 December 2005 on the witness Crispina Pono; and (6) 25 January 2006 and 2 March 2006 on the witness Rogelio Magallanes. Montalla allegedly asked for time to submit the required TSNs but failed to submit the same. Montalla was repeatedly reminded to comply with the CA’s resolution but he still did not comply.

 

In his Comment dated and mailed on 10 March 2010, Montalla admitted he was the stenographer who took down the stenographic notes on the dates mentioned and both the presiding judge and the clerk of court repeatedly reminded him to transcribe the stenographic notes of the proceedings. Montalla, however, claimed he was prevented from performing his tasks due to poor health as he was diagnosed with pulmonary tuberculosis, peptic ulcer, and diabetes. Montalla now seeks the compassion of the Court as he is allegedly still recovering from his illnesses.

 

In the Resolution dated 2 August 2010, the parties were required to manifest if they were willing to submit the matter for resolution on the basis of the pleadings filed. We noted the letter dated 24 September 2010 of Judge Absin informing the Court that he was submitting the case for resolution on the basis of the pleadings filed without further comment. We dispensed with the manifestation of Montalla who failed to file the same within the period despite receipt of the resolution.

 

The Office of the Court Administrator (OCA) opined that Montalla should have been fully aware that public officers are repositories of public trust and are under obligation to perform the duties of their office honestly, faithfully, and to the best of their ability. For failure to submit the required TSNs, Montalla is guilty of gross neglect of duty classified as a grave offense and punishable by dismissal. However, for humanitarian reasons, the OCA recommended the imposition of the penalty of suspension of six months without pay with a stern warning that a repetition of the same or similar infraction in the future shall be dealt with more severely.

 

 

On 9 February 2011, we issued a Resolution ordering Montalla to manifest whether he has submitted the required TSNs. In effect, this Resolution gave Montalla one more chance to redeem himself. However, Montalla mailed on 4 March 2011 his Comment, which was received by OCA on 2 May 2011, containing the same statements he made in his Comment dated/mailed on 10 March 2010. He admits that the Clerk of Court and Judge Absin had reminded him, repeatedly, to transcribe the stenographic notes. Montalla admits his transgressions but this time his excuse is that his failure to submit the required TSNs was due to poor health (allegedly because of “previous pulmonary tuberculosis, peptic ulcer and diabetes”) that prevented him from performing simple tasks. But one thing is clear. Montalla still has not submitted the required TSNs which were taken sometime in 2004, 2005, and 2006. Verily, Montalla has been remiss in his duty as a court stenographer.

 

Montalla should be reminded that it is the duty of the court stenographer who has attended a session of a court to immediately deliver to the clerk of court all the notes he has taken, the same to be attached to the record of the case.1 Precisely, Administrative Circular No. 24-902 was issued in order to minimize delay in the adjudication of cases as a great number of cases could not be decided or resolved promptly because of lack of TSNs. The circular required all stenographers to transcribe all stenographic notes and to attach the TSNs to the record of the case not later than 20 days from the time the notes are taken. The attaching may be done by putting all TSNs in a separate folder or envelope, which will then be joined to the record of the case.3 The circular also provided that the stenographer concerned shall accomplish a verified monthly certification as to compliance with this duty and in the absence of such certification or for failure and/or refusal to submit it, his salary shall be withheld.4

 

The Court has ruled, in a number of cases,5 that the failure to submit the TSNs within the period prescribed under Administrative Circular No. 24-90 constitutes gross neglect of duty. Gross neglect of duty is classified as a grave offense and punishable by dismissal even if for the first offense pursuant to Section 52(A)(2) of Rule IV of the Uniform Rules on Administrative Cases in the Civil Service.

 

This is not the first time that Montalla was charged with neglect of duty for delay in the submission of the TSNs. He was previously warned of a repetition of the same or similar infraction. In Office of the Court Administrator v. Montalla,6 Montalla incurred a delay of more than three years in transcribing the TSNs despite constant reminders from his superiors to submit the same. In that case, Montalla admitted lapses in the performance of his function which caused a delay in the speedy disposition of cases. He invoked serious marital problems which allegedly greatly affected his work. The Court considered Montalla’s “humble acknowledgment of his transgressions and his offer of sincere apology and promise to be more circumspect in the performance of his duties” and the fact that it was his first infraction. Montalla was found guilty of simple neglect of duty and was fined P2,000 with a stern warning that a repetition of the same or similar offense in the future shall be dealt with more severely.

 

In the present case, Montalla also failed to submit the required TSNs despite the warnings and the chances given to him to submit the same. The TSNs were taken in 2004, 2005, and 2006 and he was required to submit the same in 2009, 2010 and just recently, in February 2011. His utter disregard of the court directives and the reminders from his superiors and his lapses in the performance of his duty as a court stenographer caused delay in the speedy disposition of the case. This is no longer simple neglect of duty. Montalla, in repeatedly failing to submit the required TSNs for several years now, no longer deserves the compassion and understanding of the Court.

As a stenographer, Montalla should realize that the performance of his duty is essential to the prompt and proper administration of justice, and his inaction hampers the administration of justice and erodes public faith in the judiciary. The Court has expressed its dismay over the negligence and indifference of persons involved in the administration of justice. No less than the Constitution mandates that public officers must serve the people with utmost respect and responsibility. Public office is a public trust, and Montalla has without a doubt violated this trust by his failure to fulfill his duty as a court stenographer.7

 

WHEREFORE, we find respondent Edgardo A. Montalla, Stenographer, Regional Trial Court, Branch 29, San Miguel, Zamboanga del Sur, GUILTY of Gross Neglect of Duty. We DISMISS him from the service and FORFEIT his retirement benefits, except accrued leave credits. He is further disqualified from reemployment in the Judiciary. This judgment is immediately executory.

 

To avoid further delay in the disposition of CA-G.R. No. 01280-MIN (Heirs of Victoriano Magallanes, et al. v. Ernesto Pono and Crispina Pono), Montalla is ordered to submit, within a non-extendible period of thirty (30) days from receipt hereof, the transcripts of stenographic notes mentioned above, under pain of contempt.

 

SO ORDERED.

 

 

 

RENATO C. CORONA

Chief Justice

 

 

 

 

 

ANTONIO T. CARPIO

Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

 

 

   
TERESITA J. LEONARDO-DE CASTRO

Associate Justice

 

 

 

 

ARTURO D. BRION

Associate Justice

DIOSDADO M. PERALTA

Associate Justice

 

 

 

 

LUCAS P. BERSAMIN

Associate Justice

 

 

MARIANO C. DEL CASTILLO

Associate Justice

 

 

 

 

ROBERTO A. ABAD

Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

 

 

 

 

JOSE C. MENDOZA

Associate Justice

 

 

 

 

 

MARIA LOURDES P. A. SERENO

Associate Justice

   

 

 

 

 

 

1 Section 17, Rule 136 of the Revised Rules of Court provides:

SEC. 17. Stenographer. – It shall be the duty of the stenographer who has attended a session of a court either in the morning or in the afternoon, to deliver to the clerk of court, immediately at the close of such morning or afternoon session, all the notes he has taken, to be attached to the record of the case; and it shall likewise be the duty of the clerk to demand that the stenographer comply with said duty. The clerk of court shall stamp the date on which such notes are received by him. When such notes are transcribed, the transcript shall be delivered to the clerk, duly initialed on each page thereof, to be attached to the record of the case.

Whenever requested by a party, any statement made by a judge of first instance, or by a commissioner, with reference to a case being tried by him, or to any of the parties thereto, or to any witness or attorney, during the hearing of such case, shall be made of record in the stenographic notes.

2 Revised Rules on Transcription of Stenographic Notes and Their Transmission to Appellate Courts, 12 July 1990.

3 Paragraph 2(a).

4 Paragraph 2(b).

5 Marquez v. Pacariem, A.M. No. P-06-2249, 8 October 2008, 568 SCRA 77, 89; Banzon v. Hechanova, A.M. No. P-04-1765 (Formerly OCA IPI No. 01-1174-P), 8 April 2008, 550 SCRA 554, 559-560; Judge Reyes v. Bautista, 489 Phil. 85, 93 (2005); Judge Santos v. Laranang, 383 Phil. 267, 276-277 (2000).

6 A.M. No. P-06-2269, 20 December 2006, 511 SCRA 328.

7 Banzon v. Hechanova, supra note 5 at 560.

 

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