Republic of the Philippines

Eleventh Judicial Region

REGIONAL TRIAL COURT
Koronadal City
Branch 42

VICE-MAYOR PETER BASCON MIGUEL,

Petitioner,

-versus- Special Civil Action No. 075-42

ELIORDO USERO OGENA,

Respondent
x--------------------------------------------------x

Memorandum
on
PETITION FOR QUO WARRANTO

As compliance to the order of the Honorable Court in the

hearing held on 28 January 2020 that all parties must submit their
respective memoranda, this Memorandum is being submitted
for the petitioner.

The last day to file this memorandum falls on 12 February

2020.

But by the agreement of the parties, the last day was

deemed to be 13 February 2020.

So that this Memorandum being filed today, 12 February

2020, is timely.

1|Page
 The Summary of the Positions of the Parties

The petitioner, VICE-MAYOR PETER BASCON MIGUEL, who is

the duly-elected Vice-Mayor of Koronadal City as a result of the
elections of 13 May 2019, takes the position that the position of
the City Mayor of Koronadal is vacant because the person who
occupies the same at present is DISQUALIFIED BY LAW to sit in the
same position.

Being disqualified by law, the occupation by the

respondent of the Office of the City Mayor is NULL and VOID and
it is as good as he has never entered the said Office of the City
Mayor.

And because of this, the Office of the City Mayor is vacant.

And if the said office is vacant, then the law on succession

operates.

But because the respondent is in fact occupying the office,

the RTC of Koronadal, which has general jurisdiction over all
subject matters not specifically vested in any other courts, has
the obligation now to act on the petition to declare that the
occupation by the respondent of the Office of the City Mayor is
null and void.

And by virtue of the law of succession, the RTC must now

declare that the vice-mayor must succeed to the position of the
City Mayor.

The petition of the petitioner is filed under Rule 66 of the

Rules of Court because there is no any issue of election that is
involved in this case.

2|Page
 This is a case different and totally distinct compared
against the Petition for Quo Warranto under the Omnibus
Election Code.

Now, the respondent takes a contrary position.

On the part of the respondent, the petition cannot be

given due course.

His justification is that he can only be removed by reason of

a Quo Warranto under the Omnibus Election Code.

And as an election case, the respondent opined that this

petition for quo warranto should have been filed before the
Commission on Election and must be filed within ten (10) days
from the proclamation of the respondent as the winning mayor
of the City of Koronadal.

From these contrasting positions, it is now very clear that the

issue is whether or not this present quo warranto petition falls
under the ordinary quo warranto case under Rule 66 of the Rules
of Court or under the quo warranto proceeding of the Omnibus
Election Code.

Let therefore the focus of this Memorandum on Rule 66,

upon the theory that respondent Eliordo U. Ogena has no
authority from the law to occupy the position of Mayor of the
City of Koronadal.

For better understanding, it is better that the distinctions

between these two classes of quo warranto petitions be known
and be analyzed.

So that these distinctions are being discussed below.

3|Page
 The Distinction Between
the Quo Warranto Proceeding Under Rule 66
and
the Quo Warranto Under the Omnibus Election Code

Quo Warranto
Under Rule 66

The Quo Warranto Under Rule 66 is a prerogative writ by

which the government or a proper party can call upon any
person to show by what title he holds as a public office or
exercise a public franchise.

The ground why quo warranto is filed under Rule 66 is

usurpation.

The Quo Warranto under Rule 66 presupposes that the

person subject of the petition is actually holding office.

The action under Rule 66 must be filed by the government

or a proper party within one (1) year from the occurrence of the
cause of the ouster.

Under the Quo Warranto in Rule 66, only the government

or a person aggrieved by the usurpation can file the case.

Quo Warranto under

the Omnibus Election Code

This is an action that can be brought to question the

qualification to hold an elective office.

4|Page
 The ground is the lack of qualification to be elected into an
elective office.

And that this Quo Warranto petition under Rule 66 does not
involve issue on election and qualification of a candidate for
election.

In this quo warranto under the Omnibus Election Code, it

presupposes that the person subject of the challenge is still not
holding the office for which his qualification is being questioned.

The case for quo warranto under the Omnibus Election

Code can be filed only within ten (10) days from the date of the
proclamation of the winning candidate whose qualification is
being questioned.

The one who can file an action against the person subject
of the quo warranto is a defeated candidate or any voter in the
locality where the person being questioned was running for
election.

Additional basis
for this Quo Warranto

Section 60 of the Local Government Code enumerates the

grounds for the removal of an elective local official.

Section 60 also provides that elective officials suffering from

any of these grounds may be removed by order of the court.

Because of this, this petition for quo warranto is the case

that was filled in order to vest jurisdiction on the court.

5|Page
 It is therefore very clear that this law, the Local Government
Code, does not state that these grounds can be used only as
part of the election qualification issues under the Omnibus
Election Code.

Neither does the Local Government Code prohibit the filing

of a petition outside the Omnibus Election Code if the petition is
for the purpose of removing an elected official.

Section 60 reads:

Section 60. Grounds for Disciplinary Actions. - An elective local

official may be disciplined, suspended, or removed from office
on any of the following grounds:

(a) Disloyalty to the Republic of the Philippines;

(b) Culpable violation of the Constitution;

(c) Dishonesty, oppression, misconduct in office, gross

negligence, or dereliction of duty;

(d) Commission of any offense involving moral turpitude or an

offense punishable by at least prision mayor;

(e) Abuse of authority;

(f) Unauthorized absence for fifteen (15) consecutive working

days, except in the case of members of the sangguniang
panlalawigan, sangguniang panlungsod, sangguniang bayan, and
sangguniang barangay;

(g) Application for, or acquisition of, foreign citizenship or

residence or the status of an immigrant of another country; and

(h) Such other grounds as may be provided in this Code and

other laws.

An elective local official may be removed from office

on the grounds enumerated above by order of the proper
court.

Because Article 60 authorizes the removal on other grounds

in this Code, it follows that all the disqualifications enumerated in

6|Page
Section 40 constitute other grounds provided in this Local
Government Code of 1990.

Section 40. Disqualifications. - The following persons are

disqualified from running for any elective local position:

(a) Those sentenced by final judgment for an offense involving

moral turpitude or for an offense punishable by one (1) year or
more of imprisonment, within two (2) years after serving
sentence;

(b) Those removed from office as a result of an

administrative case;

(c) Those convicted by final judgment for violating the oath of

allegiance to the Republic;

(d) Those with dual citizenship;

(e) Fugitives from justice in criminal or non-political cases here

or abroad;

(f) Permanent residents in a foreign country or those who have

acquired the right to reside abroad and continue to avail of the
same right after the effectivity of this Code; and

(g) The insane or feeble-minded.

The Issues

The first issue is whether or not an elected official can be

removed from office by Quo Warranto under Rule 66.

The second issue is whether the finding by the Supreme

Court that the respondent is guilty of engaging in unlawful,
dishonest, immoral or deceitful conduct and removing him from
office of the Notary Public constitutes at least two of the grounds
enumerated in Section 40 of the Local Government Code,
namely:

(a) Those sentenced by final judgment for an offense

involving moral turpitude or for an offense punishable by one (1)

7|Page
year or more of imprisonment, within two (2) years after serving
sentence;

(b) Those removed from office as a result of an administrative

case;

The Discussions

The First Issue:

This is not an
election issue

The instant petition questions the lack of authority of the

respondent to hold the office for which he has been holding
since the respondent entered office on June 30, 2019, when the
respondent took over as the City Mayor of the City of Koronadal.

Yes, the respondent was elected into office.

But the question now being posed is not his qualification to

be elected.

What is being questioned now is whether the respondent is

usurping the Office of the City Mayor of Koronadal City.

The petitioner here who is the incumbent vice-mayor

became injured by the acts of the respondent in occupying the
Office of the City Mayor from June 30, 2019 until today, the day
this Memorandum is being written.

The null-and-void occupation being done by the

respondent began on June 30, 2019 because it is the beginning

8|Page
of the term of office of all elected officials for the term 2019 to
2022.

The petitioner was elected as the vice-mayor and he

entered the office of the vice-mayor on June 30, 2019.

If it is the vice-mayor who has the right to succeed to the

Office of the City Mayor, then the petitioner cannot have a right
to succeed until he had taken his oath as the vice-mayor and
entered the office of the vice-mayor.

So that it is only when the petitioner became the vice-

mayor that he earned the right by succession to enter and
occupy the Office of the City Mayor and that right by succession
occurred only on June 30, 2019.

As such, it is only on that day, June 30, 2019, that the period
of one year to file this action shall be counted from.

From June 30, 2019, the last day for the petitioner to file this
Petition for Quo Warranto ends on June 29, 2020.

The fact that this Petition for Quo Warranto was filed before
June 29, 2020 means that this present petition was timely filed.

While the petitioner as a voter may file a petition for quo

warranto under the Omnibus Election Code within the ten-day
reglementary period from the date of the proclamation of the
respondent, that filing will not benefit him but the closest
opponent of the respondent in terms of the votes garnered in
the May 13, 2019 election for mayor.

The opponent of the respondent who was the closest to

him in terms of votes garnered was Arthur “Dodo” Pingoy, Jr.

9|Page
 At that period of ten days from the proclamation of the
respondent, only Pingoy had the primary right to file that quo
warranto under the Omnibus Election Code.

That was so because Pingoy was the only beneficiary in

case the quo warranto petition won. That was because he will
be proclaimed to sit as the City Mayor and not petitioner Miguel
here.

So that it is very clear that the cause of action for petitioner

Miguel to succeed as the mayor began only from June 30, 2019.

It is also very clear that petitioner Miguel cannot file this

petition as an election issue because he cannot have a cause
of action for him to sit as the City Mayor by succession.

So that the conclusion is that this Petition for Quo Warranto

under Rule 66 of the Rules of Court can be used to remove a
usurper elected official under the present circumstance.

To stress, the cause of action of the petitioner for him to

succeed as the mayor occurred only after the petitioner
became the vice-mayor and the respondent entered the Office
of the City Mayor.

The Second Issue:

Whether the finding
of the SC constitutes the
respondent as a usurper

Now, the filing of this petition for quo warranto against the
respondent is founded on the fact that he was convicted by the
Supreme Court by final judgment for engaging in unlawful,
dishonest, immoral or deceitful conduct in notarizing documents
and removed at the same time from the Office of the Notary
Public.
10 | P a g e
 For clarity, the ruling of the Supreme Court in Erlinda Sistual,
Flordelisa S. Leysa, Leonisa S. Espabo and Arlan Sistual vs Atty.
Eliordo Ogena, A.C. No. 9807, February 2, 2016, is quoted in toto:

By notarizing the aforementioned documents, Atty.

Ogena engaged in unlawful, dishonest, immoral or
deceitful conduct. His conduct is fraught with dangerous
possibilities considering the conclusiveness on the due
execution of a document that our courts and the public
accord to notarized documents. His failure to perform his
duty as a notary public resulted not only in damaging
complainants' rights but also in undermining the integrity
of a notary public and in degrading the function of
notarization. Thus, Atty. Ogena should be liable for such
negligence, not only as a notary public but also as a
lawyer.

The respondent was convicted in the foregoing

administrative case involving moral turpitude because his act of
notarizing documents was “done contrary to justice, modesty, or
good morals; an act of baseness, vileness or depravity in the
private and social duties which a man owes his fellowmen, or to
society in general, contrary to the accepted and customary rule
of right and duty between man and woman, or conduct
contrary to justice, honesty, modesty, or good morals.” (Cecilia
Pagaduan vs Civil Service Commission and Rema Martin
Salvador, G.R. No. 206379, November 19, 2014).

In fact, because of the grave offense committed by the

respondent, he was removed from the office of the Notary Public
and was perpetually barred from being commissioned as a
Notary Public by the Supreme Court, to wit:

WHEREFORE, respondent Atty. Eliordo Ogena

is SUSPENDED from the practice of law for two (2) years
and is BARRED PERMANENTLY from being commissioned
as Notary Public.

11 | P a g e
 There is no doubt hereto that two of the grounds
enumerated in Section 40 of the Local Government Code,
namely:

(a) Those sentenced by final judgment for an offense

involving moral turpitude or for an offense punishable by one (1)
year or more of imprisonment, within two (2) years after serving
sentence; and

(b) Those removed from office as a result of an

administrative case are present in the disbarment case against
the respondent.

By the foregoing, the respondent is clearly prohibited by

Section 40 (b) of RA 7160 because he was removed from office,
the NOTARY PUBLIC office, as decreed by the Supreme Court as
permanent in character in that administrative case for
disbarment.

Section 40 (b) does not distinguish what kind of

administrative case.

Whenever the law does not distinguish the courts cannot

distinguish, either.

So that the administrative case in relation to the offense as

a notary public and as a lawyer is included in the administrative
case stated in Section 40 of the Local Government Code.

Aside from his removal from the office of the Notary Public,
the respondent is also disqualified in the sense that he was
sentenced by final judgment to an offense involving moral
turpitude and that this sentence decreed by the Supreme Court
pronounced him guilty of a dishonest, immoral and deceitful
conduct.

12 | P a g e
 Again, the law does not distinguish as to what kind of
offense, wither administrative or criminal.

And if the law does not distinguished the court cannot

distinguish, either.

There is no doubt that respondent Ogena was sentenced

by final judgment of the offense of falsification to make it appear
that those signatories signed those documents when in truth they
did not sign.

There is also no doubt that the said act of falsification is also

immoral and criminal although used as an administrative offense
in this case.

There is also no doubt that acts of immorality is of moral

turpitude.

As such, it is also clear that from the start respondent Eliordo

Usero Ogena was already disqualified by law to run and occupy
any elective office – and, most importantly, now null and void to
occupy the position of the City Mayor of Koronadal.

While he was barred to run, the respondent DID NOT

DISCLOSE in his Certificate of Candidacy that he was sentenced
by final judgment of an administrative offense involving moral
turpitude.

He also did not disclose in his Certificate of Candidacy that

he was removed by the Supreme Court from the office of the
Notary Public and is barred permanently from entering the same
office.

For these acts of not disclosing these material defects of his

qualifications, that actually made his run and election null and
void, he must be also guilty of a criminal election offense of

13 | P a g e
material misrepresentation in the filing of his certificate of
candidacy.

For these acts of non-disclosure, his opponent in the last

election, Arthur “Dodo” Y. Pingoy, did not question his
qualifications to run for mayor of this City, before election and
after election.

Now, it means that the election, proclamation, and

swearing into office done by the respondent are all NULL and
VOID from the beginning.

If he was not allowed to run, then he got no right from his

actual act of running because it is prohibited by law.

And if he has no right to run, he has no right to be

proclaimed as the winner.

And if he has no right to be proclaimed, then he has no

right to be sworn to the office of the City Mayor of Koronadal.

And if he has no right to be sworn into office, then he has

no right to enter and occupy and continue to hold the office of
the City Mayor of Koronadal.

And because he has no right to sit as the mayor of

Koronadal City, the petitioner who is the duly-proclaimed and
duly-entered Vice-Mayor of the City of Koronadal MUST ASCEND
to the Office of the Mayor of Koronadal City by the law of
succession.

That is because the petitioner has been the RIGHTFUL

MAYOR OF THE CITY by reason of vacancy and the application
of the rule of succession of office under the Local Government
Code of Koronadal City.

14 | P a g e
 To reiterate, under Section 40 of the Local Government
Code of 1991, paragraph b, those removed from office as a
result of an administrative case are disqualified from running for
elective position.

By logic, those disqualified from running for any elective

office is also disqualified from holding any elective office or
having no authority to hold any elective office.

As such, ELIORDO USERO OGENA must be removed from

the Office of the Mayor for having no right to hold such office.

Additional
Argument

What the law, Section 40 of the Local Government Code

seeks to prevent is the possibility of an elected official to do
immoral acts in office as he was also calloused and has already
established a culture of impunity to do bad in office.

With this principle, it means that the fact that the

respondent may have been found guilty in a disbarment
proceeding is of no moment.

The principle in the disqualification is also applicable with

the same vigor as in the administrative case for disbarment: to
prevent persons with track record of stealing from occupying
elective positions.

The Prayer

WHEREFORE, it is respectfully prayed that this Memorandum

of the petitioner be ADMITTED.

15 | P a g e
 Other reliefs just and equitable are also prayed for. 12
February 2020. Manila for Koronadal City.

Causing Sabarre Pelagio

Unit A2, Building 2, Rey-D Buildings
San Rafael Street corner Boni Avenue, Mandaluyong City
Email: berteniccausing_lawoffices@yahoo.com; Tel: +02-86383389

By:

BERTENI CATALUÑA CAUSING, CE

IBP No. 105071 / January 6, 2020 / Manila IV
PTR No. 9141426 / January 7, 2020 / Manila IV
Roll No. 60944
MCLE No. IV – 0007338 issued 10 August 2012
(Valid from 15 April 2013 until 14 April 2016)
MCLE No. V – 0013036 issued 13 January 2016
(Valid from 15 April 2016 until 14 April 2019)
MCLE No. VI - 0017252 issued 24 January 2019
(Valid from 15 April 2019 to 14 April 2022)

Explanation

Far distance and lack of manpower compelled the service of this

Memorandum by registered mail/LBC Express.

BERTENI CATALUÑA CAUSING, CE

CC:

ATTY. MARK J. GALVAN

Counsel for the Respondent
The Law Offices of Galvan Sollesta & Associates
Unit 2A, 2nd Floor JTCT Bldg., General Santos Drive
Koronadal City, South Cotabato

16 | P a g e