G.R. No.
102667 February 23, 2000 CA found petitioner liable for damages under Articles 19, 21, and
AMADO J. LANSANG vs. COURT OF APPEALS, GENERAL
ASSEMBLY OF THE BLIND, INC., and JOSE IGLESIAS
QUISUMBING, J.:
FACTS: Like public streets, public parks are beyond the
commerce of man. However, private respondents were allegedly
awarded a "verbal contract of lease" in 1970 by the National Parks
Development Committee (NPDC), a government initiated civic
body engaged in the development of national parks, including
Rizal Park, but actually administered by high profile civic leaders
and journalists. Whoever in NPDC gave such "verbal"
accommodation to private respondents was unclear, for indeed
no document or instrument appears on record to show the grantor
of the verbal license to private respondents to occupy a portion
of the government park dedicated to the national hero's memory.
Private respondents were allegedly given office and library space
as well as kiosks area selling food and drinks. One such kiosk was
located along T.M. Kalaw St., in front of the Army and Navy Club.
Private respondent General Assembly of the Blind, Inc. (GABI) was
to remit to NPDC, 40 percent of the profits derived from operating
the kiosks,2 without again anything shown in the record who
received the share of the profits or how they were used or spent.
With the change of government after the EDSA Revolution, the
new Chairman of the NPDC, herein petitioner, sought to clean up
Rizal Park. In a written notice received by private respondents,
petitioner terminated the so-called verbal agreement with GABI
and demanded that the latter vacate the premises and the kiosks
it ran privately within the public park.In another notice
respondents were given until March 8, 1988 to vacate.
The latter notice was signed by private respondent Iglesias, GABI
president, allegedly to indicate his conformity to its contents.
However, Iglesias, who is totally blind, claims that he was
deceived into signing the notice. He was allegedly told by Ricardo
Villanueva, then chief warden of Rizal Park, that he was merely
acknowledging receipt of the notice. Although blind, Iglesias as
president was knowledgeable enough to run GABI as well as its
business.
On the day of the supposed eviction, GABI filed an action for
damages and injunction in the Regional Trial Court against
petitioner, Villanueva, and "all persons acting on their behalf".
The trial court issued a temporary restraining order on the same
day.
The TRO expired on March 28, 1988. The following day, GABI was
finally evicted by NPDC.
GABI's action for damages and injunction was subsequently
dismissed by the RTC, ruling that the complaint was actually
directed against the State which could not be sued without its
consent. Moreover, the trial court ruled that GABI could not claim
damages under the alleged oral lease agreement since GABI was
a mere accommodation concessionaire. As such, it could only
recover damages upon proof of the profits it could realize from
the conclusion. The trial court noted that no such proof was
presented.
On appeal, CA reversed the decision of the trial court. Mere
allegation that a government official is being sued in his official
capacity is not enough to protect such official from liability for
acts done without or in excess of his authority. Granting that
petitioner had the authority to evict GABI from Rizal Park, "the
abusive and capricious manner in which that authority was
exercised amounted to a legal wrong for which he must now be
held liable for damages.
CA noted that, as the trial court observed, the eviction of GABI
came at the heels of two significant incidents. First, after private
respondent Iglesias extended monetary support to striking
workers of the NPDC, and second, after Iglesias sent the
Tanodbayan, a letter denouncing alleged graft and corruption in
the NPDC. These, according to the Court of Appeals, should not
have been taken against GABI, which had been occupying Rizal
Park for nearly 20 years. GABI was evicted purportedly for
violating its verbal agreement with NPDC. However, the Court of
Appeals pointed out that NPDC failed to present proof of such
violation.
24 of the Civil Code. CA absolved from liability all other persons
impleaded in GABI's complaint since it appeared that they were
merely acting under the orders of petitioner. The new officers of
NPDC, additionally impleaded by GABI, were likewise absolved
from liability, absent any showing that they participated in the
acts complained of. Petitioner was ordered to pay private
respondent Iglesias moral and exemplary damages and attorney's
fees.
ISSUES:
I. WHETHER OR NOT RESPONDENT COURT ERRED IN NOT HOLDING
THAT PRIVATE RESPONDENTS' COMPLAINT AGAINST PETITIONER,
AS CHAIRMAN OF NPDC, AND HIS CO-DEFENDANTS IN CIVIL CASE
NO. 88-43887, IS IN EFFECT A SUIT AGAINST THE STATE WHICH
CANNOT BE SUED WITHOUT ITS CONSENT.
II. WHETHER OR NOT RESPONDENT COURT ERRED IN NOT HOLDING
THAT PETITIONER'S ACT OF TERMINATING RESPONDENT GABI'S
CONCESSION IS VALID AND DONE IN THE LAWFUL PERFORMANCE
OF OFFICIAL DUTY.
Petitioner insists that the complaint filed against him is in reality
a complaint against the State, which could not prosper without
the latter's consent. He anchors his argument on the fact that
NPDC is a government agency, and that when he ordered the
eviction of GABI, he was acting in his capacity as chairman of
NPDC. Petitioner avers that the mere allegation that he was being
sued in his personal capacity did not remove the case from the
coverage of the law of public officers and the doctrine of state
immunity.
Petitioner points out that Iglesias signed the notice of eviction to
indicate his conformity thereto. He contends that as evidence of
private respondents' bad faith, they sued petitioner instead of
complying with their undertaking to vacate their library and kiosk
at Rizal Park. Petitioner adds that during the actual eviction, no
untoward incident occurred. GABI's properties were properly
inventoried and stored.
According to petitioner, the CA’s observation that the eviction
was prompted by Iglesias' support for striking NPDC workers and
the letter-complaint sent to the Tanodbayan is merely
conjectural.
Finally, petitioner avers that the move to evict GABI and award
the spaces it occupied to another group was an executive policy
decision within the discretion of NPDC. GABI's possession of the
kiosks as concessionaire was by mere tolerance of NPDC and,
thus, such possession may be withdrawn at any time, with or
without cause.
On the other hand, private respondents aver that petitioner acted
beyond the scope of his authority when he showed malice and bad
faith in ordering GABI's ejectment from Rizal Park. Quoting from
the decision of the CA, private respondents argue that petitioner
is liable for damages for performing acts "to injure an individual
rather than to discharge a public duty."
While private respondents recognize the authority of petitioner
to terminate the agreement with GABI "if [the contract] is
prejudicial to the interest of the NPDC,"15 they maintain that
petitioner's personal interest, and not that of the NPDC, was the
root cause of GABI's ejectment.
RULING: The doctrine of state immunity from suit applies to
complaints filed against public officials for acts done in the
performance of their duties. The rule is that the suit must be
regarded as one against the state where satisfaction of the
judgment against the public official concerned will require the
state itself to perform a positive act, such as appropriation of the
amount necessary to pay the damages awarded to the plaintiff.
The rule does not apply where the public official is charged in his
official capacity for acts that are unlawful and injurious to the
rights of others. Public officials are not exempt, in their personal
capacity, from liability arising from acts committed in bad faith.
Neither does it apply where the public official is clearly being
sued not in his official capacity but in his personal capacity,
although the acts complained of may have been committed while
he occupied a public position.
We are convinced that petitioner is being sued not in his capacity
as NPDC chairman but in his personal capacity. The complaint
filed by private respondents in the RTC merely identified
petitioner as chairman of the NPDC, but did not categorically
state that he is being sued in that capacity. Also, it is evident
from paragraph 4 of said complaint that petitioner was sued
allegedly for having personal motives in ordering the ejectment
of GABI from Rizal Park.
4. Defendant AMADO J. LANSANG, JR., the Chairman of the
National Parks Development Committee, acting under the spirit
of revenge, ill-will, evil motive and personal resentment against
plaintiff JOSE IGLESIAS, served on the plaintiff corporation a
letter terminating plaintiffs lease agreement with a demand for
the plaintiff corporation to vacate its office premises.
The parties do not dispute that it was petitioner who ordered the
ejectment of GABI from their office and kiosk at Rizal Park. There
is also no dispute that petitioner, as chairman of the NPDC which
was the agency tasked to administer Rizal Park, had the authority
to terminate the agreement with GABI21 and order the
organization's ejectment. The question now is whether or not
petitioner abused his authority in ordering the ejectment of
private respondents.
We find, however, no evidence of such abuse of authority on
record. As earlier stated, Rizal Park is beyond the commerce of
man and, thus, could not be the subject of a lease contract.
Admittedly, there was no written contract. That private
respondents were allowed to occupy office and kiosk spaces in
the park was only a matter of accommodation by the previous
administrator. This being so, also admittedly, petitioner may
validly discontinue the accommodation extended to private
respondents, who may be ejected from the park when necessary.
Private respondents cannot and does not claim a vested right to
continue to occupy Rizal Park.
WHEREFORE, the instant petition is GRANTED.
[G.R. No. 115634. April 27, 2000]
FELIPE CALUB and RICARDO VALENCIA, DEPARTMENT of
ENVIRONMENT and NATURAL RESOURCES (DENR),
CATBALOGAN, SAMAR , vs. COURT OF APPEALS, MANUELA T.
BABALCON, and CONSTANCIO ABUGANDA
QUISUMBING, J.:
FACTS: On January 28, 1992, the Forest Protection and Law
Enforcement Team of the Community Environment and Natural
Resources Office (CENRO) of the DENR apprehended two (2)
motor vehicles, described as follows:
"1. loaded with (1,026) board feet of illegally sourced lumber
valued at P8,544.75, being driven by one Pio Gabon and owned
by [a certain] Jose Vargas.
2. loaded with (1,224.97) board feet of illegally-sourced lumber
valued at P9,187.27, being driven by one Constancio Abuganda
and owned by [a certain] Manuela Babalcon. ".
Constancio Abuganda and Pio Gabon, the drivers of the vehicles,
failed to present proper documents and/or licenses. Thus, the
apprehending team seized and impounded the vehicles and its
load of lumber at the DENR-PENR (Department of Environment
and Natural Resources-Provincial Environment and Natural
Resources) Office in Catbalogan. Seizure receipts were issued but
the drivers refused to accept the receipts. Felipe Calub,
Provincial Environment and Natural Resources Officer, then filed
a criminal complaint against Abuganda for violation of Section 68
[78), Presidential Decree 705 as amended by Executive Order 277,
otherwise known as the Revised Forestry Code.
the impounded vehicles were forcibly taken by Gabon and
Abuganda from the custody of the DENR, prompting DENR Officer
Calub this time to file a criminal complaint for grave coercion
against Gabon and Abuganda. The complaint was, however,
dismissed by the Public Prosecutor.
Later on, one of the two vehicles was again apprehended by a
composite team of DENR-CENR in Catbalogan and Philippine Army
elements of the 802nd Infantry Brigade. It was again loaded with
forest products with an equivalent volume of 1,005.47 board feet,
valued at P10,054.70. Calub duly filed a criminal complaint
against Constancio Abuganda, a certain Abegonia, and several
John Does for violation of Section 68 [78], Presidential Decree 705
as amended by Executive Order 277, otherwise known as the
Revised Forestry Code.
However, Abegonia and Abuganda were acquitted on the ground
of reasonable doubt. But note the trial court ordered that a copy
of the decision be furnished the Secretary of Justice, in order that
the necessary criminal action may be filed against Noe Pagarao
and all other persons responsible for violation of the Revised
Forestry Code. For it appeared that it was Pagarao who chartered
the subject vehicle and ordered that cut timber be loaded on it..
Subsequently, herein private respondents Manuela Babalcon, the
vehicle owner, and Constancio Abuganda, the driver, filed a
complaint for the recovery of possession of the two (2) impounded
vehicles with an application for replevin against herein
petitioners before the RTC. The trial court granted the
application for replevin and issued the corresponding writ.
Petitioners filed a motion to dismiss which was denied by the trial
court.
Thus, petitioners filed with the Supreme Court the present
Petition for Certiorari, Prohibition and Mandamus with
application for Preliminary Injunction and/or a Temporary
Restraining Order. The Court issued a TRO, enjoining respondent
RTC judge from conducting further proceedings in the civil case
for replevin; and enjoining private respondents from taking or
attempting to take the motor vehicles and forest products seized
from the custody of the petitioners. The Court further instructed
the petitioners to see to it that the motor vehicles and other
forest products seized are kept in a secured place and protected
from deterioration, said property being in custodia legis and
subject to the direct order of the Supreme Court. the Court
referred said petition to respondent appellate court for
appropriate disposition..
CA denied said petition for lack of merit. It ruled that the mere
seizure of a motor vehicle pursuant to the authority granted by
Section 68 [78] of P.D. No. 705 as amended by E.O. No. 277 does
not automatically place said conveyance in custodia legis.
According to the appellate court, such authority of the
Department Head of the DENR or his duly authorized
representative to order the confiscation and disposition of
illegally obtained forest products and the conveyance used for
that purpose is not absolute and unqualified. It is subject to
pertinent laws, regulations, or policies on that matter, added the
appellate court. The DENR Administrative Order No. 59, series of
1990, is one such regulation, the appellate court said. For it
prescribes the guidelines in the confiscation, forfeiture and
disposition of conveyances used in the commission of offenses
penalized under Section 68 [78] of P.D. No. 705 as amended by
E.O. No. 277..
Additionally, respondent CA noted that the petitioners failed to
observe the procedure outlined in DENR Administrative Order No.
59, series of 1990. They were unable to submit a report of the
seizure to the DENR Secretary, to give a written notice to the
owner of the vehicle, and to render a report of their findings and
recommendations to the Secretary. Moreover, petitioners failure
to comply with the procedure laid down by DENR Administrative
Order No. 59, series of 1990, was confirmed by the admission of
petitioners counsel that no confiscation order has been issued
prior to the seizure of the vehicle and the filing of the replevin
suit. Therefore, in failing to follow such procedure, according to
the appellate court, the subject vehicles could not be considered
in custodia legis..
Respondent CA also found no merit in petitioners claim that
private respondents complaint for replevin is a suit against the
State. Accordingly, petitioners could not shield themselves under
the principle of state immunity as the property sought to be
recovered in the instant suit had not yet been lawfully adjudged
forfeited in favor of the government. Moreover, according to
respondent appellate court, there could be no pecuniary liability
nor loss of property that could ensue against the government. It
reasoned that a suit against a public officer who acted illegally or
beyond the scope of his authority could not be considered a suit
against the State; and that a public officer might be sued for
illegally seizing or withholding the possession of the property of
another.
ISSUES: Whether or not the complaint for the recovery of
possession of impounded vehicles, with an application for
replevin, is a suit against the State.
RULING: The Revised Forestry Code authorizes the DENR to seize
all conveyances used in the commission of an offense in violation
of Section 78. Section 78 states:
Sec. 78. Cutting, Gathering, and or Collecting Timber, or Other
Forest Products without License. Any person who shall cut,
gather, collect, remove timber or other forest products from any
forestland, or timber from alienable or disposable public land, or
from private land, without any authority, or possess timber or
other forest products without the legal documents as required
under existing forest laws and regulations, shall be punished with
the penalties imposed under Articles 309 and 310 of the Revised
Penal Code.
The Court shall further order the confiscation in favor of the
government of the timber or any forest products cut, gathered,
collected, removed, or possessed, as well as the machinery,
equipment, implements and tools illegally used in the area where
the timber or forest products are found.
This provision makes mere possession of timber or other forest
products without the accompanying legal documents unlawful
and punishable with the penalties imposed for the crime of theft,
as prescribed in Articles 309-310 of the Revised Penal Code. In
the present case, the subject vehicles were loaded with forest
products at the time of the seizure. But admittedly no permit
evidencing authority to possess and transport said load of forest
products was duly presented. These products, in turn, were
deemed illegally sourced. Thus there was a prima facie violation
of Section 68 [78] of the Revised Forestry Code, although as found
by the trial court, the persons responsible for said violation were
not the ones charged by the public prosecutor.
The corresponding authority of the DENR to seize all conveyances
used in the commission of an offense in violation of Section 78 of
the Revised Forestry Code is pursuant to Sections 78-A and 89 of
the same Code.
Sec. 78-A. Administrative Authority of the Department Head or
His Duly Authorized Representative to Order Confiscation. -- In all
cases of violation of this Code or other forest laws, rules and
regulations, the Department Head or his duly authorized
representative, may order the confiscation of any forest products
illegally cut, gathered, removed, or possessed or abandoned, and
all conveyances used either by land, water or air in the
commission of the offense and to dispose of the same in
accordance with pertinent laws, regulations or policies on the
matter.
Sec. 89. Arrest; Institution of criminal actions. -- A forest officer
or employee of the Bureau [Department] or any personnel of the
Philippine Constabulary/Philippine National Police shall arrest
even without warrant any person who has committed or is
committing in his presence any of the offenses defined in this
Chapter. He shall also seize and confiscate, in favor of the
Government, the tools and equipment used in committing the
offense...
Note that DENR Administrative Order No. 59, series of 1990,
implements Sections 78-A and 89 of the Forestry Code, as follows:
Sec. 2. Conveyances Subject to Confiscation and Forfeiture. -- All
conveyances used in the transport of any forest product obtained
or gathered illegally whether or not covered with transport
documents, found spurious or irregular in accordance with Sec.
68-A [78-A] of P.D. No. 705, shall be confiscated in favor of the
government or disposed of in accordance with pertinent laws,
regulations or policies on the matter.
Sec. 4. Who are Authorized to Seize Conveyance. -- The Secretary
or his duly authorized representative such as the forest officers
and/or natural resources officers, or deputized officers of the
DENR are authorized to seize said conveyances subject to policies
and guidelines pertinent thereto. Deputized military personnel
and officials of other agencies apprehending illegal logs and other
forest products and their conveyances shall notify the nearest
DENR field offices, and turn over said forest products and
conveyances for proper action and disposition. In case where the
apprehension is made by DENR field officer, the conveyance shall
be deposited with the nearest CENRO/PENRO/RED Office as the
case may be, for safekeeping wherever it is most convenient and
secured.
Upon apprehension of the illegally-cut timber while being
transported without pertinent documents that could evidence
title to or right to possession of said timber, a warrantless seizure
of the involved vehicles and their load was allowed under Section
78 and 89 of the Revised Forestry Code.
Note further that petitioners failure to observe the procedure
outlined in DENR Administrative Order No. 59, series of 1990 was
justifiably explained. Petitioners did not submit a report of the
seizure to the Secretary nor give a written notice to the owner of
the vehicle because on the 3rd day following the seizure, Gabon
and Abuganda, drivers of the seized vehicles, forcibly took the
impounded vehicles from the custody of the DENR. Then again,
when one of the motor vehicles was apprehended and impounded
for the second time, the petitioners, again were not able to
report the seizure to the DENR Secretary nor give a written notice
to the owner of the vehicle because private respondents
immediately went to court and applied for a writ of replevin. The
seizure of the vehicles and their load was done upon their
apprehension for a violation of the Revised Forestry Code. It
would be absurd to require a confiscation order or notice and
hearing before said seizure could be effected under the
circumstances.
Since there was a violation of the Revised Forestry Code and the
seizure was in accordance with law, in our view the subject
vehicles were validly deemed in custodia legis. It could not be
subject to an action for replevin. For it is property lawfully taken
by virtue of legal process and considered in the custody of the
law, and not otherwise.
Mamanteo, et. al. v. Deputy Sheriff Magumun: the case involves
property to be seized by a Deputy Sheriff in a replevin suit. But
said property were already impounded by the DENR due to
violation of forestry laws and, in fact, already forfeited in favor
of the government by order of the DENR. We said that such
property was deemed in custodia legis. The sheriff could not insist
on seizing the property already subject of a prior warrant of
seizure. The appropriate action should be for the sheriff to inform
the trial court of the situation by way of partial Sheriffs Return,
and wait for the judges instructions on the proper procedure to
be observed.
Note that property that is validly deposited in custodia legis
cannot be the subject of a replevin suit. In Mamanteo v. Deputy
Sheriff Magumun, we elucidated further:
". . . the writ of replevin has been repeatedly used by
unscrupulous plaintiffs to retrieve their chattel earlier taken for
violation of the Tariff and Customs Code, tax assessment,
attachment or execution. Officers of the court, from the
presiding judge to the sheriff, are implored to be vigilant in their
execution of the law otherwise, as in this case, valid seizure and
forfeiture proceedings could easily be undermined by the simple
devise of a writ of replevin..."
On the second issue, is the complaint for the recovery of
possession of the two impounded vehicles, with an application for
replevin, a suit against the State?
Well established is the doctrine that the State may not be sued
without its consent.. And a suit against a public officer for his
official acts is, in effect, a suit against the State if its purpose is
to hold the State ultimately liable.. However, the protection
afforded to public officers by this doctrine generally applies only
to activities within the scope of their authority in good faith and
without willfulness, malice or corruption. In the present case, the
acts for which the petitioners are being called to account were
performed by them in the discharge of their official duties. The
acts in question are clearly official in nature. In implementing and
enforcing Sections 78-A and 89 of the Forestry Code through the
seizure carried out, petitioners were performing their duties and
functions as officers of the DENR, and did so within the limits of
their authority. There was no malice nor bad faith on their part.
Hence, a suit against the petitioners who represent the DENR is a
suit against the State. It cannot prosper without the States
consent. ACCORDINGLY, the Petition is GRANTED.
G.R. No. 142362 May 3, 2006
PHILIPPINE AGILA SATELLITE INC. and MICHAELC. U. DE
GUZMAN vs. JOSEFINA TRINIDAD-LICHAUCO Undersecretary for
Communications, Department of Transportation and
Communication (DOTC)
TINGA, J.:
FACTS: Petitioner Philippine Agila Satellite Inc. (PASI) is a duly
organized corporation, whose President and Chief Executive
Officer is co-petitioner Michael C.U. De Guzman. PASI was
established by a consortium of private telecommunications
carriers which in 1994 had entered into a (MOU) with the DOTC,
through its then Secretary Jesus Garcia, concerning the planned
launch of a Philippine-owned satellite into outer space. Under the
MOU, the launch of the satellite was to be an endeavor of the
private sector, and the satellite itself to be owned by the Filipino-
owned consortium (subsequently organized as PASI). The
consortium was to grant the Philippine government one (1)
transponder free of charge for the government's exclusive use for
non-commercial purpose, as well as the right of first refusal to
another one (1) transponder in the Philippine satellite, if
available. The Philippine government, through the DOTC, was
tasked under the MOU to secure from the International
Telecommunication Union the required orbital slot(s) and
frequency assignment(s) for the Philippine satellite.
PASI itself was organized by the consortium in 1996. The
government, together with PASI, coordinated through the
International Telecommunication Union two (2) orbital slots, for
Philippine satellites. PASI sought with DOTC for official Philippine
government confirmation on the assignment of the two
aforementioned Philippine orbital slots to PASI for its satellites,
which PASI had designated as the Agila satellites. Secretary
Lagdameo, Jr. confirmed "the Philippine Government's
assignment of Philippine orbital slots to [PASI] for its [Agila]
satellites."
PASI avers that after having secured the confirmation from the
Philippine government, it proceeded with preparations for the
launching, operation and management of its satellites, including
the availment of loans, the increase in its capital, negotiation
with business partners, and an initial payment of US$3.5 Million
to the French satellite manufacturer. However, respondent
Lichauco, then DOTC Undersecretary for Communications,
allegedly "embarked on a crusade to malign the name of [Michael
de Guzman] and sabotage the business of PASI." Lichauco's
purported efforts against PASI culminated allegedly in her
offering orbital slot 153º East Longitude for bidding to other
parties sometime in December 1997, despite the prior assignment
to PASI of the said slot. It was later claimed by PASI that Lichauco
subsequently awarded the orbital slot to an entity whose
indentity was unknown to PASI.
Aggrieved by Lichauco's actions, PASI and De Guzman instituted a
civil complaint against Lichauco, by then the Acting Secretary of
the DOTC, and the "Unknown Awardee" who was to be the
recipient of orbital slot 153º East Longitude. The complaint, was
for injunction, declaration of nullity of award, and damages. The
first cause of action, for injunction, sought to establish that the
award of orbital slot 153º East Longitude should be enjoined since
the DOTC had previously assigned the same orbital slot to PASI.
The second cause of action, for declaration of nullity of award,
averred that the award to the unknown bidder is null and void, as
it was rendered by Lichauco beyond her authority.
The third cause of action, for damages, imputed several acts to
Lichauco as part of her alleged "crusade" to malign the name of
plaintiff [D]e Guzman and sabotage the business of [PASI].
The complaint alleged that since Lichauco's act of offering and
awarding orbital slot 153º East Longitude was patently illegal and
violative of DOTC's prior commitment to PASI, Lichauco should be
enjoined from performing any acts and entering into or executing
any agreement or arrangement of whatever nature in connection
with the said orbital slot. The complaint also averred that the
purported award of the orbital slot to the "Unknown Awardee was
illegal, and thus should be declared null and void.
In sum, petitioners sought the following reliefs for the three (3)
causes of action:
[a] On the first cause of action, making permanent the writ of
preliminary injunction;
[b] On the second cause of action, declaring the offer and award
of orbital slot 153 E to defendant Unknown Awardee null and void.
The complaint was filed before the (RTC). RTC issued a temporary
restraining order against Lichauco. Lichauco failed to file an
answer within the reglementary period, but eight (8) days after
the lapse thereof, she filed a Manifestation and Motion asking for
a new five (5)-day period, to file a responsive pleading to the
complaint. However, she filed instead a Motion to Admit with
attached Motion to Dismiss. She rooted her prayer for the
dismissal of the complaint primarily on the grounds that the suit
is a suit against the State which may not be sued without its
consent; that the complaint stated no cause of action; and that
the petitioners had failed to exhaust administrative remedies by
failing to seek recourse with the Office of the President.
RTC denied the motion to dismiss. It characterized the defense
of state immunity as "at very least a contentious issue which can
not be resolved by mere allegations in the pleadings but which
can be best threshed out in a litig[i]ous forum where parties are
accorded enormous (sic) opportunity to argue for the
ascertainment of whether the act complained of are indeed
within the parameters and prerogatives of the authority
exercising the same."14 The RTC also noted that the allegations
in the complaint regarding the ultimate facts sufficiently
presented an ultra vires act of Lichauco, and that she was being
sued in her personal capacity. As to the argument pertaining to
the non-exhaustion of administrative remedies, the RTC noted
that the principle is not an inflexible rule, and may be dispensed
with when its application would cause great and irreparable
damage or when it would not constitute a plain, speedy and
adequate remedy.
Lichauco assailed the RTC order through a Petition for Certiorari
under Rule 65 before the CA, which subsequently nullified the
RTC order in the Decision now assailed before us. The Court of
Appeals sustained the contention that the complaint is a suit
against the State.
RULING: The suit is to the mind of this court a suit against the
state. The notice of offer signed by herein petitioner allegedly
tainted with bad faith was done in the exercise of and in
pursuance of an official duty. Her duties are as follows:
SEC. 10. Powers and Duties of the Undersecretary. The
Undersecretary shall:
(1) Advise and assist the Secretary in the formulation and
implementation of department objectives and policies;
(2) Oversee all the operational activities of the department for
which he shall be responsible to the Secretary;
(3) Coordinate the programs and projects of the department and
be responsible for its economical, efficient and effective
administration:
It is apparent from the above enumeration that the petitioner is
directly under and answerable to the DOTC Secretary. We can
therefore conclude that her official acts such as the said "notice
of offer" was with the blessing and prior approval of the DOTC
Secretary himself.
Being an official act, it is also protected by the presumption that
the same was performed in good faith and in the regular
performance of official duty.
"Acts in Line of Duty or under Color of Authority. - As a rule, a
public officer, whether judicial, quasi-judicial, or executive, is
not personally liable to one injured in consequence of an act
performed within the scope of his official authority, and in the
line of his official duty. In order that acts may be done within the
scope of official authority, it is not necessary that they be
prescribed by statute, or even that they be specifically directed
or requested by a superior officer, but it is sufficient if they are
done by an officer in relation to matters committed by law to his
control or supervision, or that they have more or less connection
with such matters, or that they are governed by a lawful
requirement of the department under whose authority the officer
is acting. Under this principle, state building commissioners who,
in obedience to a stature, discharge one who has been employed
to construct a state building, take possession of the work, and
place it in the hands of another contractor, are not liable to the
former contractor in damages, since in so doing they are merely
acting in the line of their duty. An officer is not personally
responsible for the necessary and unavoidable destruction of
goods stored in buildings, when such buildings were destroyed by
him in the lawful performance of a public duty imposed on him
by a valid and constitutional statute."
Error or Mistake in Exercise of Authority. - Where an officer is
invested with discretion and is empowered to exercise his
judgment in matters brought before him he is sometimes called a
quasi-judicial officer, and when so acting he is usually given
immunity from liability to persons who may be injured as the
result of an erroneous or mistaken decision, however, erroneous
judgment may be, provided the acts complained of are done
within the scope of the officer's authority, and without
willfulness, malice, or corruption."
Sanders vs. Veridiano: "Given the official character of the above-
described letters, we have to conclude that the petitioners were,
legally speaking, being sued as officers of the United States
government. As they have acted on behalf of that government,
and within the scope of their authority, it is that government and
not the petitioners personally, that is responsible for their acts.
Assuming that the trial can proceed and it is proved that the
claimants have a right to the payment of damages, such award
will have to be satisfied not by the petitioners in their personal
capacities but by the United States government as their principal.
This will require that government, viz.: the appropriation of the
necessary amount to cover the damages awarded, thus making
the action a suit against that government without its consent.
There should be no question by now that such complaint cannot
prosper unless the government sought to be held ultimately liable
has given its consent to be sued. So we have ruled not only in Baer
but in many other decisions where we upheld the doctrine of state
immunity as applicable not only to our own government but also
to foreign States sought to be subjected to the jurisdiction of our
courts.
There is a connective issue between these two aspects in that if
the State is sued without its consent, the corresponding suit must
be dismissed. At times, it would be teasingly obvious, even from
the moment of the filing of the complaint, that the suit is one
against the State. A cursory examination of the caption of the
complaint can sometimes betray such proscribed intent, as when
the suit is directly initiated against the Republic of the consent
to be sued, the suit may nonetheless prosper.
The present action was denominated against Lichauco and the
unknown awardee, Lichauco was identified in the complaint as
"acting Secretary of the [DOTC]." The hornbook rule is that a suit
for acts done in the performance of official functions against an
officer of the government by a private citizen which would result
in a charge against or financial liability to the government must
be regarded as a suit against the State itself, although it has not
been formally impleaded.24 However, government immunity
from suit will not shield the public official being sued if the
government no longer has an interest to protect in the outcome
of a suit; or if the liability of the officer is personal because it
arises from a tortious act in the performance of his/her duties.
Petitioner insists that Lichauco is being sued for her acts
committed in excess of her authority, ultra vires in nature, and
tortious in character. The Court of Appeals responded that such
acts fell within Lichauco's official duties as DOTC Undersecretary,
thus enjoying the presumption that they were performed in good
faith and in the regular performance of official duty. This
rationale is pure sophistry and must be rejected outright.
We do not doubt the existence of the presumptions of "good faith"
or "regular performance of official duty", yet these presumptions
are disputable and may be contradicted and overcome by other
evidence.
If this reasoning of the Court of Appeals were ever adopted as a
jurisprudential rule, no public officer could ever be sued for acts
executed beyond their official functions or authority, or for
tortious conduct or behavior, since such acts would "enjoy the
presumption of good faith and in the regular performance of
official duty". Indeed, few civil actions of any nature would ever
reach the trial stage, if a case can be adjudicated by a mere
determination from the complaint or answer as to which legal
presumptions are applicable.
So obviously, the Decision of the CA cannot receive the
imprimatur of this Court. Still, the question of whether Lichauco
may validly invoke state immunity from suit to secure the outright
dismissal of petitioners' complaint warrants closer examination.
As earlier noted, the complaint alleges three (3) causes of action
against Lichauco: one for injunction against her performing any
act in relation to orbital slot 153º East Longitude; one for
declaration of nullity of award, seeking to nullify the alleged
award of orbital slot 153º East Longitude; and one for damages
against Lichauco herself. Evidently, the first two causes of action
stem from Lichauco's act of offering orbital slot 153º East
Longitude for bidding, through the Notice of Offer which was
attached to the complaint.
In her Motion to Dismiss, Lichauco asserts that she is being sued
for issuing the aforementioned Notice of Offer, which fell within
her official functions as DOTC Undersecretary for
Communications. She claims that it was Secretary Lagdameo who
authorized her to offer orbital slot 153º East Longitude for
bidding, and she thus acted well within the scope of her authority
to advise and assist the DOTC Secretary in the formulation and
implementation of department objectives and policies.
The Notice of Offer cites Department Circular 97-01, signed by
then DOTC Secretary Arturo Enrile, as authority for it. The Court
has examined the aforementioned Department Circular which
establishes the "Guidelines on the Procurement of Orbital Slots
and Frequency Registration of Philippine Satellites". Therein, the
DOTC is mandated "to conduct a bidding process in case there are
competing applications for any one of the assigned or applied-for-
orbital slots". Further, the Department Circular states that "the
DOTC shall publish in three newspapers of general circulation a
notice of offer for the government assigned, initiated and applied
for orbital slots."
Thus, insofar as the first two causes of action are concerned,
Lichauco may have a point when she asserts that they were based
on acts which she performed in her capacity as DOTC
Undersecretary. But does this necessarily mean that these two
causes of action may thus be dismissed on the basis of state
immunity of suit?
As stated earlier, it is when the acts done in the performance of
official functions by an officer of the government will result in a
charge against or financial liability to the government that the
complaint must be regarded as a suit against the State itself.
However, the distinction must also be raised between where the
government official concerned performs an act in his/her official
and jurisdictional capacity and where he performs an act that
constitutes grave abuse of discretion tantamount to lack of
jurisdiction. In the latter case, the Constitution itself assures the
availability of judicial review, and it is the official concerned who
should be impleaded as the proper party- defendant or
respondent.
On this point, our ruling in J.M. Tuazon & Co. v. Land Tenure
Administration30 is material. Petitioners therein had filed a
special civil action for prohibition to nullify Republic Act No.
2616, or law that directed the expropriation of the Tatalon Estate
in Quezon City. Impleaded as respondents were the officials and
government agency tasked to undertake such expropriation. The
respondents alleged that the petition for prohibition was actually
a suit against the State without its consent. The Court, through
then Associate Justice (later Chief Justice) Enrique Fernando,
debunked the argument, ruling instead that the petition was
within the ambit of judicial review:
[T]he power of judicial review is granted, if not expressly, at least
by clear implication from the relevant provisions of the
Constitution. This power may be exercised when the party
adversely affected by either a legislative or executive act, or a
municipal ordinance for that matter, files the appropriate suit to
test its validity. The special civil action of prohibition has been
relied upon precisely to restrain the enforcement of what is
alleged to be an unconstitutional statute. As it is a fundamental
postulate that the Constitution as the supreme law is binding on
all governmental agencies, failure to observe the limitations
found therein furnishes a sufficient ground for a declaration of
nullity of the government measure challenged. The argument
then that the government is the adverse party and that,
therefore, must consent to its being sued certainly is far from
persuasive.
The Court further noted that it was well-settled for the purpose
of obtaining a judicial declaration of nullity, "it is enough if the
respondents or defendants named be the government officials
who would give operation and effect to official action allegedly
tainted with unconstitutionality."
Unlike in J.M. Tuason, the case at bar does not seek to nullify an
unconstitutional law or measure. However, the first two causes
of action do sufficiently impute grave abuse of discretion against
Lichauco in her official capacity. Since judicial review of acts
alleged to have been tainted with grave abuse of discretion is
guaranteed by the Constitution, it necessarily follows in such
instances that it is the official concerned who should be
impleaded as defendant or respondent in the appropriate suit.
Moreover, if the suit had been directed against Lichauco alone,
and in her personal capacity, yet it sought, as it now does, the
nullification of the Notice of Offer or the awards thereon, such
remedy could not avail even if granted. Lichauco, in her personal
capacity, cannot be directed to set aside the Notice of Offer, the
award of the bid, or to issue a new award herself. It is only
because Lichauco was sued in her official capacity as the DOTC
Undersecretary that she, or her successors in office, could be
judicially compelled to act in such fashion.
As to the first two (2) causes of action, the Court rules that the
defense of state immunity from suit do not apply since said causes
of action cannot be properly considered as suits against the State
in constitutional contemplation. These causes of action do not
seek to impose a charge or financial liability against the State,
but merely the nullification of state action. The prayers attached
to these two causes of action are for the revocation of the Notice
of Bid and the nullification of the purported award, nothing more.
Had it been so that petitioner additionally sought damages in
relation to said causes of action, the suit would have been
considered as one against the State. Had the petitioner
impleaded the DOTC itself, an unincorporated government
agency, and not Lichauco herself, the suit would have been
considered as one against the State. But neither circumstance
obtains in this case.
Parenthetically, it may be noted that at the time of the filing of
the complaint, Lichauco herself was already the acting head of
the DOTC, owing to the sudden death of then Secretary Enrile a
few days before. At that stage, any suit seeking to nullify the
Notice of Bid and the alleged award to the "Unknown Bidder"
should have properly denominated Lichauco as the respondent,
and not the DOTC.
Nonetheless, as to the first two causes of action, there was a
viable ground to dismiss the complaint: the non-exhaustion of
administrative remedies.
Turning to the matter pertaining to non-exhaustion of
administrative remedies, it is fundamental that this principle is
not an inflexible rule. It yields to many accepted exceptions. As
in this case, this principle can be dispensed with when its
application would cause great and irreparable damage and when
it does not provide a plain, speedy and adequate remedy.
A different set of principles applies to the third cause of action,
anchored as it is on alleged acts that are tortious in character or
otherwise beyond the scope of Lichauco's official duties. The
complaint alleges that Lichauco uttered several disparaging and
defamatory remarks against petitioners and made false assertions
against them in her letter to the Land Bank President.
The veracity of those allegations is of course presented at the
trial to be determined on the basis of the evidence. However, if
proven, they would establish liability on the part of Lichauco that
is not shielded by the doctrine of state immunity from suit.
Shauf v. Court of Appeals : While the doctrine appears to prohibit
only suits against the state without its consent, it is also
applicable to complaints filed against officials of the state for
acts allegedly performed by them in the discharge of their duties.
The rule is that if the judgment against such officials will require
the state itself to perform an affirmative act to satisfy the same,
such as the appropriation of the amount needed to pay the
damages awarded against them, the suit must be regarded as
against the state itself although it has not been formally
impleaded. It must be noted, however, that the rule is not so all-
encompassing as to be applicable under all circumstances.
Justice Zaldivar in Director of the Bureau of Telecommunications,
et al. vs. Aligaen, etc., et al.: 'Inasmuch as the State authorizes
only legal acts by its officers, unauthorized acts of government
officials or officers are not acts of the State, and an action against
the officials or officers by one whose rights have been invaded or
violated by such acts, for the protection of his rights, is not a suit
against the State within the rule of immunity of the State from
suit. In the same tenor, it has been said that an action at law or
suit in equity against a State officer or the director of a State
department on the ground that, while claiming to act for the
State, he violates or invades the personal and property rights or
the plaintiff, under an unconstitutional act or under an
assumption of authority which he does not have, is not a suit
against the State within the constitutional provision that the
State may not be sued without its consent.' The rationale for this
ruling is that the doctrine of state immunity cannot be used as an
instrument for perpetrating an injustice.
The doctrine poses no controversy if after trial on the merits, it
is established that the public official concerned had committed
illegal or tortious acts against the plaintiff. How does it apply in
relation to a motion to dismiss on the ground of state immunity
from suit, necessarily lodged before trial on the merits?
United States of America v. Reyes: a motion to dismiss averring
immunity from suit of a State and its functionaries was actually
grounded on the specific ground for dismissal of the lack of cause
of action, for even assuming that the defendants had committed
the injurious acts complained of, "no action may be maintained
thereon, because of the principle of state immunity."37
Pertinently, the Court noted that "a motion to dismiss on the
ground of failure to state a cause of action hypothetically admits
the truth of the allegations in the complaint."
Thus, Lichauco, in alleging in her Motion to Dismiss that she is
shielded by the State's immunity from suit, to hypothetically
admitted the truth of the allegations in the complaint. Such
hypothetical admission has to be deemed a concession on her part
that she had performed the tortious or damaging acts against the
petitioners, which if true, would hold her liable for damages.
Of course, Lichauco could very well raise the defense of state
immunity from suit in regard to the third cause of action with the
assertion that the acts complained of constituting said cause of
action fell within her official functions and were not tortuous in
character. Still, to establish such assertions of fact, a full-blown
trial on the merits would be necessary, as would the case be if
Lichauco raised the defense that she did not commit these acts
complained of. Certainly, these defenses cannot be accorded
merit before trial, factual as they are in character.
All told, contrary to the ruling of the Court of Appeals, we find
no grave abuse of discretion on the part of the RTC in denying
Lichauco's Motion to Dismiss.
WHEREFORE, the PETITION is GRANTED.
G.R. Nos. 148682-85
PEOPLE OF THE PHILIPPINES - versus - ANGEL A. ENFERMO,
November 30, 2005
AZCUNA, J.:
FACTS: Office of the Ombudsman filed with the Regional Trial
Court twelve informations against appellant, Angel A. Enfermo,
and Ferdinand C. Entienza, both former employees of the
National Research Council of the Philippines (NRCP). Several of
the cases filed were dismissed for repeated failure of the
prosecution to present evidence. The MR of the order of dismissal
was denied. The NRCP through the Government Corporate
Counsel filed a petition for certiorari with the CA questioning the
dismissal and the denial of the motion for reconsideration, which
petition was denied by the CA. As a result of the dismissal of those
cases, the only ones that survived and were tried in the Regional
Trial Court were Criminal Cases Nos. 111086 and 111087 for
Malversation through Falsification of Public Documents and
Criminal Cases Nos. 111089 and 111091 for Estafa through
Falsification of Public Documents, in which only appellant, Angel
A. Enfermo, was charged.
Prosecution’s Evidence: Alejandro Rodanilla, Administrative
Officer of the NRCP, testified that appellant, Angel A. Enfermo,
held the position of Disbursing Officer II, Accounting Section,
Finance and Administrative Division of the NRCP. His duties and
responsibilities as a disbursing officer are the following: He
assist[s] the cashier in the preparation and the release of the
checks covering the financial transaction of the NRCP. He also
assist[s] the cashier in encashing the checks for salaries of the
employees of NRCP.
As testified to by Luz Acosta Aramil, Accountant III of NRCP,
sometime in 1993, it was discovered that the debit and credit
records of the checks issued and paid by its depositary bank, Land
Bank of the Philippines (LBP), did not balance. The bank
reconciliation showed overstatements of P80,000, P60,000 and
P60,000 for the months of June, July and November, respectively.
An investigation disclosed that there were double issuances of
checks, which were covered by only one disbursement voucher
each.
In Criminal Case No. 111086, the charge originated from the
double issuance of checks intended for Aurora Dacanay, a
researcher who was doing a study on pine shoot moth and tip
moth in the Benguet pine forest in the Cordillera. NRCP issued
an LBP check to Dacanay P38,446.13. This check was duly
supported by Disbursement Voucher. The sum was the final
release of an outright grant in connection with an NRCP-assisted
research project E-181, entitled Population Dynamics of Pine
Shoot Moth and Tip Moth in Benguet Pine Forest in the
Cordillera.The check was received and encashed by Dacanay in
Baguio City. However, , a second check was issued to Aurora
Dacanay for the same amount of P38,446.13 and supported by the
same voucher as the first check. This second check was encashed
by appellant in the Paraaque branch of the Land Bank of the
Philippines by supposedly forging the signature of the payee and
signing his own name as an acknowledgement of receipt of
payment. Appellant received and misappropriated the proceeds
of the check.
In Criminal Case No. 111087, again, the charge stemmed from a
double issuance of a check intended for Jose M. Bernaldez, a
Mathematics professor based in Mindanao State University (MSU),
Iligan City. A Check for P30,000 was issued by the NRCP to
Bernaldez. The check was supported by Disbursement Voucher.
The amount paid was for an outright grant in connection with the
NRCP-assisted research project No. B-78, entitled On Regular
Cyclically K-Complementary Graphs. The check was received and
encashed by Bernaldez in Iligan City. Again, as in the case of
Aurora Dacanay, another check was issued in the name of Jose M.
Bernaldez which was not supported by a disbursement voucher.
Like the case of Dacanay, appellant encashed the check at the
Paraaque branch of the Land Bank of the Philippines, by
supposedly forging the signature of Bernaldez, and signing his own
name to acknowledge receipt of payment. Appellant received and
misappropriated the proceeds of the check.
The resident auditor of the Commission on Audit assigned to the
NRCP, Ma. Eugenia Rodil, testified to an audit report which she
prepared and submitted pursuant to the detection of the
anomalous transactions at the NRCP. After her cash examination
revealed that there was a shortage, a fraud audit in the NRCP was
performed. Rodil testified on the documentary evidence gathered
relating to the double issuance of checks to Dacanay and
Bernaldez. In her investigation she discovered that the bank
statement did not tally with the Journal of Checks Issued, which
was prepared by Accountant III Aramil and the Report of Checks
Issued (RCI), which was prepared by the cashier.
With regard to Criminal Cases Nos. 111089 and 111091, the
prosecution presented Mary Christine Avanzado and Lanie P.
Manalo, employees of the NRCP, who both executed affidavits.
Avanzado testified that when she was claiming her salary as Clerk
I for the period of January 115, 1994, she was informed by
appellant that he had spent the money and would just pay her
back. In the case of Manalo, she did not receive her productivity
incentive pay in the amount of P2,000. She then confronted
appellant regarding the amount, and the latter replied that he
had used it to pay a debt. Both Avanzado and Manalo signed the
payroll upon the promise of appellant that he would return the
money.
Appellant was convicted by the RTC on all four charges. CA
affirmed the RTC decision with modification, as follows:
Appellant contended that the prosecution failed to prove that he
falsified the signature of the payee as it did not present the
testimony of the NBI officer or handwriting expert who prepared
the handwriting examination report. Moreover, argued the
appellant, if he really committed such forgery, then he should
have at least imitated the signature of the payee; and since it
was his signature which appeared on the dorsal portion of the
questioned checks, he could not have forged his own signature.
Appellant also pointed out that the prosecution presented mere
photocopies of the questioned checks, the originals thereof were
not submitted in evidence. The trial court thus erred in convicting
the accused in the absence of evidence that he misappropriated
the proceeds of the subject checks.
RULING: Such contentions are untenable.
The crime charged in Criminal Case[s] Nos. 111086 and 111087 is
malversation committed by means of falsification of public
documents, the checks considered as public documents
evidencing payment of obligation by the government out of public
funds
The crime of malversation of public funds is defined and
penalized as follows:
ART. 217. Malversation of public funds or property.Presumption
of malversation Any public officer who, by reason of the duties of
his office is accountable for public funds or property, shall
appropriate the same, or shall take or misappropriate or shall
consent, or through abandonment or negligence, shall permit any
other person to take such public funds or property wholly or
partially, or shall otherwise be guilty of the misappropriation or
malversation of such funds or property.
The failure of a public officer to have duly forthcoming any public
funds or property with which he is chargeable, upon demand by
any duly authorized officer, shall be prima facie evidence that he
has put such missing funds or property to personal uses.
The elements of malversation, essential for the conviction of an
accused, under the above penal provision are that:
(a) the offender is a public officer;
(b) he has the custody or control of funds or property by reason
of the duties of his office;
(c) the funds or property involved are public funds or property
for which he is accountable; and
(d) he has appropriated, taken or misappropriated, or has
consented to, or through abandonment or negligence permitted,
the taking by another person of, such funds or property.
Anent the last element, our Supreme Court has ruled that to
justify conviction for malversation of public funds, the
prosecution has only to prove that the accused received public
funds or property and that he could not account for them or did
not have them in his possession and could not give a reasonable
excuse for the disappearance of the same. An accountable public
officer may be convicted of malversation even if there is no direct
evidence of misappropriation and the only evidence is that there
is a shortage in his accounts which he has not been able to explain
satisfactorily. Such conversion of public funds must be
affirmatively proved, whether by direct evidence or by the
production of facts from which conversion necessarily follows.
In the case at bar, We find that the prosecution has satisfactorily
proved all the elements of the crime of malversation under Art.
217 of the Revised Penal Code.
Appellant did not give any explanation as to the shortage in the
funds which have been traced to the double issuance of checks,
the responsibility for which fell on the cashier (Entienza) and the
disbursing officer (appellant). His defense consisted of a mere
denial that the signature appearing on the dorsal portion of the
questioned checks was not his. In his testimony, however,
appellant did not categorically deny that said signature was his
but that he could not remember whether it was his signature
because it was a long time ago. As to the authenticity of his
signature appearing on said checks, upon the request of the
NRCP, the NBI conducted a handwriting examination of appellants
signature appearing on the questioned checks together with
specimen signatures of appellant taken from daily time records,
and submitted a report thereon confirming that indeed, the same
were written by (1) one and the same person. While it is true that
the prosecution did not present the testimony of the NBI officer
or handwriting expert who conducted said examination, the
signature of appellant appearing on the questioned checks was
sufficiently established by the testimony of Luz Aramil who has
sufficient familiarity with appellants signature, having worked
with appellant who was under her supervision and had seen
documents signed by him. Such opinion of a non-expert on
handwriting is authorized under Sec. 22, Rule 132 of the Rules of
Court to prove genuineness of a handwriting. A person is deemed
to be acquainted with the handwriting of another where it is
shown that, in the ordinary course of business, documents
purporting to be written by that person have frequently come into
his possession or under his scrutiny or have been habitually
submitted to him. In Court Administrator v. Villanueva (223 SCRA
41), resort to handwriting experts, while probably useful, is not
mandatory nor indispensable in examining or comparing
handwriting. This is so since under Sec. 22, Rule 132, the
handwriting of a person may be proved by any witness who
believes it to be the handwriting of such person, because he has
seen the person write, or has seen writing purporting to be his
upon which the witness has acted or been charged, and has thus
acquired knowledge of the handwriting of such person. In view of
the foregoing, it is clear that the testimony of the NBI handwriting
expert who conducted the examination and submitted the report
questioned by the appellant, is not indispensable in proving the
authenticity of appellants signature on the questioned checks.
Appellant also claimed that the prosecution failed to indubitably
establish that it was he who actually falsified the signature of
Aurora Dacanay and Jose M. Bernaldez and referred to the
testimony of Aramil on cross-examination where the latter could
not definitely point to him as the one who signed the name of
said payees on the checks. Aramils testimony, however, only
emphasized the point that such act of falsification committed by
appellant can be conclusively presumed from the undisputed fact
that he was the one who encashed the checks and received the
proceeds thereof as evidenced by his signature acknowledging
receipt of payment of said checks. It has been held that in the
absence of a satisfactory explanation, one found in possession of
and who used a forged document is the forger and therefore guilty
of falsification. Since it is obvious that the purported signatures
of the payees in the questioned checks were not genuine
signatures on the basis of visual comparison alone, it goes without
saying that the person who encashed the same and received
payment thereof is presumed to be the forger of said signatures.
Taken together with the circumstances that as disbursing officer,
appellant was the one in charge of preparation, encashment and
delivery of checks issued by the NRCP, the conclusion is inevitable
that no other person other than appellant could have falsified the
payees signature, encashed the questioned checks and
misappropriated the proceeds thereof. Being a public officer who
had taken advantage of his official posisiton and falsified the
signature of the payees of the questioned checks, appellant has
committed falsification of public document defined and
penalized under Art. 171, paragraph 1 of the Revised Penal Code.
The totality of evidence indeed points to the appellant as the one
responsible for the encashment of the questioned checks found
to be irregularly issued. His objection as to the documentary
exhibits being mere photocopies is of no significance since during
the hearings below, appellants counsel, upon request by the
prosecution, had admitted that these are faithful reproduction[
of the originals thereof, which original copies, however, have not
been submitted to the trial court as they were being kept in
custody by the Commission on Audit which had conducted its own
investigation on the matter. Besides, no such objection was raised
by appellant in his Comments/Objections to Prosecution[]s
Formal Offer of Evidence.
Coming now to the charges against the appellant in Criminal
Case[s] Nos. 111089 and 111091, the respective information reads
Criminal Case No. 111089
The undersigned Graft Investigation Officer I, Office of the
Ombudsman accuses Angel A. Enfermo of the Crime of Estafa
through Falsification of Public Document, defined and penalized
under Article 315 paragraph 1 (b) in relation to Article 171
paragraph 1 and Article 48 of the Revised Penal Code committed
as follows:
That on or about January 15, 1994, and for sometime prior or
subsequent thereto, in the Municipality of Taguig, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court,
above-named accused Angel A. Enfermo a public officer being
then a Disbursing Officer of National Research Council of the
Philippines (NRCP), Taguig, Metro Manila, taking advantage of his
official position, did
then and there, willfully, unlawfully and feloniously falsify NRCP
Salary Payroll for the period January 1 to 15, 1994 by forging the
signature of Marie Christine T. Avanzado, NRCP Accounting Clerk;
and thereafter, with grave abuse of confidence, embezzle,
misappropriate and convert to his personal use and benefit the
salary in the amount of P978.24 pertaining to Ms. Avanzado, to
the damage and prejudice of public interest and Marie Christine
T. Avanzado.
Criminal Case No. 111091
The undersigned Graft Investigation Officer I, Office of the
Ombudsman accuses Angel A. Enfermo of the Crime of Estafa
through Falsification of Public Document, defined and penalized
under Article 315 paragraph 1 (b) in relation to Article 171 and
Article 48 of the Revised Penal Code committed as follows:
That on or about January 17, 1994, and for sometime prior or
subsequent thereto, in the Municipality of Taguig, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court,
above-named accused Angel A. Enfermo a public officer being
then a Disbursing Officer of National Research Council of the
Philippines (NRCP), Taguig, Metro Manila, taking advantage of his
official position, did then and there, willfully, unlawfully and
feloniously falsify Productivity Incentive Payroll of NRCP for the
year 1993 by forging the signature of Lanie P. Manalo, an
employee of the NRCP; and thereafter, with grave abuse of
confidence, misappropriate and convert to his personal use and
benefit the said Productivity Incentive of Ms. Manalo in the
amount of P2,000.00 to the damage and prejudice of Lanie
Manalo.
As shown above, the prosecuting officer designated the offense
as Estafa Through Falsification of Public Document under Art. 315
paragraph 1(b) in relation to Art. 171, paragraph 1 and Art. 48 of
the Revised Penal Code. After evaluating the evidence adduced
during the trial however, the lower court convicted the appellant
of the crime of malversation defined and penalized under Art.
217 of the Revised Penal Code, stating that there was no
falsification of public document involved as the appellant did not
falsify the signatures of Avanzado and Manalo in the payroll since
the latter two (2) themselves signed the same after appellant
promised to return the money. The lower court reasoned that said
funds remain as public funds prior to their release to and receipt
by the personnel entitled thereto, and hence by admitting that
he had used the money representing the salary and productivity
incentive bonus, respectively, of Avanzado and Manalo for his own
benefit, appellant clearly committed an act of malversation in
both cases.
Appellant, on the other hand, argued that he could not be
convicted of the crime charged in Criminal Case Nos. 111089 and
111091 since both Avanzado and Manalo testified that their
signatures in the payroll were not falsified by the appellant. Their
signature on the payroll thus constitutes undeniable proof that
there was transfer of ownership of said money from the
government to the said employees. Such money thereby became
subject to the control of the said employees and it is perfectly
within their rights to lend it and allow somebody to use their
money. In fact, appellant averred, it is a recognized practice
among government employees and even in the private sector to
just sign the payroll without actually receiving their money
because others have borrowed it. No money or property was taken
from the government and hence no element of damage to the
government was present.

Appellants arguments are without merit.
First, We shall pass upon the matter of the crime charged in the
information and subsequent conviction of the appellant for a
crime other than that designated by the prosecuting officer in
said information.
Although the caption or preamble of the information(s) charged
the accused-appellant with estafa through falsification of public
document, the crime committed was malversation. It is settled
that what controls is not the designation of the offense but the
description thereof as alleged in the information. The technical
name given by the fiscal appearing in the title of the information
does not determine the character of the crime but the facts
alleged in the body of the information. The real nature of the
criminal charge cannot be determined from the caption or
preamble of the information or from the mere reference to a
particular provision of law alleged to have been violated because
they are conclusions of law. On the contrary, it is determined by
the actual recital of facts in the complaint or information. Thus,
an incorrect caption is not a fatal mistake. For the rule is settled
that it is ultimately the court which determines the nomenclature
of the crime after the trial and following its own ascertainment
of the facts needed to constitute the elements of the crime
attributed to the accused.
As described in the information, the offense imputed to appellant
Enfermo contains all the essential elements of malversation, to
wit: (1) the offender is a public officer; (2) he has the custody or
control of funds or property by reason of the duties of his office;
(3) the funds or property involved are public funds or property for
which he is accountable; and (4) he has appropriated, taken or
misappropriated, or has consented to, or through abandonment
or negligence permitted, the taking by another person of such
funds or property. So that even if appellant is correct in saying,
and which was also the ruling of the trial court, that he had not
committed falsification of public document since he did not
falsify the signature of Avanzado and Manalo in the payroll, still
he cannot escape criminal liability for the act of malversation
committed by him in taking, appropriating or misappropriating
the payroll money intended for Avanzado and Manalo, for his own
personal use and benefit. Contrary to appellants theory, such
funds remain as public funds prior to their release to and receipt
by said Avanzado and Manalo, the persons entitled to receive the
same. His asseveration that it is a recognized practice among
government employees and even in the private sector for
employees to just sign the payroll without actually receiving the
money because others have borrowed it, has no basis and does
not justify his highly improper act. Besides, in no way can it be
considered that appellant had borrowed the questioned funds
intended for Avanzado and Manalo when he had not first sought
the permission of the two (2) before taking the money and using
it for his personal benefit, as said employees even had to confront
him for their non-receipt of said payroll money. And even granting
that he had priorly (sic) secured permission from said employees,
it will not change the character of the payroll funds as public
funds for as long as these have not yet been received by or
released to the said employees.
Clearly then, upon the foregoing facts and circumstances, the
guilt of the accused-appellant for the crime of malversation in
Criminal Case Nos. 111089 and 111091 has been proven beyond
reasonable doubt.
As to the penalties imposed by the trial court, We believe that
the trial court erred in imposing the penalty of eighteen (18)
years, eight (8) months and one (1) day of reclusion temporal
minimum to reclusion perpetua maximum in Criminal Case Nos.
111086 and 111087. Art. 217, paragraph 4 of the Revised Penal
Code, prescribes the penalty of reclusion temporal in its
maximum period to reclusion perpetua. In the light of Article 48
which provides that the penalty for a complex crime is the
penalty for the most serious crime, the same to be applied in its
maximum period, the proper penalty in this case is therefore
reclusion perpetua, which remains as an indivisible penalty having
no minimum, medium and maximum periods. (People v. Quitlong,
292 SCRA 360, 382, citing the Supreme Courts Resolution of
January 9, 1995 clarifying its decision in People v. Lucas, 310 Phil
77.) Consequently, the Indeterminate Sentence Law ( Act No.
4103, as amended) does not apply in this case in view of Section
2 thereof. On the other hand, the penalty imposed in Criminal
Case Nos. 111089 and 111091 should also be modified from eight
(8) years and one (1) day to nine (9) years and four (4) months
and one (1) day of prision mayor, to an indeterminate penalty of
two (2) years, four (4) months and one (1) day of prision
correccional as minimum, to seven (7) years, four (4) months and
one (1) day of prision mayor, as maximum, for each in accordance
with Article 217 paragraph 2, the amount involved (P978.24 and
P2,000.00) being more than P200.00 but does not exceed
P6,000.00.
WHEREFORE, premises considered, the present appeal is hereby
PARTLY GRANTED.
ISSUES:
4. IN CRIMINAL CASES NOS. 111086 AND 111087, WHETHER
PHOTOCOPIES OF THE CHECKS ARE ADMISSIBLE AS EVIDENCE.
5. IN CRIMINAL CASES NOS. 111089 AND 111091, WHETHER THE
FUNDS TAKEN BY APPELLANT WERE PUBLIC FUNDS.
The first, second, and third issues will be discussed together.
Although it is true that the prosecution did not present any direct
evidence that appellant effected the falsification, such is a
disputable presumption arising from the facts of the case. In
Maliwat v. CA, cited by the Court of Appeals, this Court said
The settled rule is that in the absence of satisfactory explanation,
one found in possession of and who used a forged document is the
forger and therefore guilty of falsification.
If a person had in his possession a falsified document and he made
use of it (uttered it), taking advantage of it and profiting thereby,
the clear presumption is that he is the material author of the
falsification.
By mere comparison with the signatures of Dacanay and Bernaldez
in the checks that they had actually signed, Check No.
00000163230-BB[28] and Check No. 0000096515-CC[29], it was
proven that the signatures in the other two checks, were falsified.
Furthermore, it is indisputable that said checks were in the
possession of appellant, as proven by the fact that he was the
Disbursing Officer; and that possession of such checks was within
his functions. Also, the fact that his signatures appeared at the
back of the checks further proves that he was in possession of
them, that he was the one who presented them for payment, and
that he received their proceeds and therefore used and profited
by such checks. Since he could not adequately explain the
foregoing facts, the presumption defined in Maliwat v. CA applies.
He is therefore presumed to be the forger of the signatures of
Dacanay and Bernaldez.
Appellants contention that the NBI report on the signature of
appellant is not admissible since the officer who prepared the
report was not presented to testify on the reports authenticity or
contents need not be resolved because the authenticity of
appellants signature on the two checks does not depend upon it
since such was proven by the testimony of Luz Aramil, who was
familiar with the signature of appellant.
With regard to the fifth issue, the funds taken by appellant in
Criminal Cases Nos. 111089 and 111091 are public in nature. He
claims that Avanzado and Manalo signed their names, which
signified that they had already received the money and therefore
the money had already become private in character. From the
testimony of Avanzado and Manalo, it is plain that appellant took
the money prior to their signing the payrolls. In Director of
Commerce and Industry v. Concepcion, a case penned by Justice
Malcolm, this Court held:
A rule, which has never been seriously questioned, is that money
in the hands of public officers, although it may be due
government employees, is not liable to the creditors of these
employees in the process of garnishment. One reason is, that the
State, by virtue of its sovereignty, may not be sued in its own
courts except by express authorization by the Legislature, and to
subject its officers to garnishment would be to permit indirectly
what is prohibited directly. Another reason is that money sought
to be garnished, as long as they remain in the hands of the
disbursing officer of the Government, belong to the latter,
although the defendant in garnishment may be entitled to a
specific portion thereof. And still another reason which covers
both of the foregoing is that every consideration of public policy
forbids it.
The United States Supreme Court, in the leading case of Buchanan
vs. Alexander, in speaking of the right of creditors of seamen, by
process of attachment, to divert the public money from its
legitimate and appropriate object, said:

"To state such a principle is to refute it. No government can

sanction it. At all times it would be found embarrassing, and
under some circumstances it might be fatal to the public service.
. . . So long as money remains in the hands of a disbursing officer,
it is as much the money of the United States, as if it had not been
drawn from the treasury. Until paid over by the agent of the
government to the person entitled to it, the fund cannot, in any
legal sense, be considered a part of his effects."

Hence, the money was public in nature since it had not yet been
received by Avanzado and Manalo when appellant took it.

WHEREFORE, the Decision of the CA is AFFIRMED in toto, as

follows:

1) In Criminal Case No 111086, appellant Angel A. Enfermo is

hereby sentenced to suffer the penalty of reclusion perpetua
together with the accessory penalties, and to indemnify the
National Research Council of the Philippines (NRCP) in the amount
of P38,446.13;
2) In Criminal Case No. 111087, appellant Angel A. Enfermo is
hereby sentenced to suffer the penalty of reclusion perpetua,
together with the accessory penalties, and to indemnify the
National Research Council of the Philippines (NRCP) in the amount
of P30,000;