.R. No. 159395. May 7, 2008.* OFFICE OF THE OMBUDSMAN, petitioner, vs. COURT OF APPEALS and DR.

MERCEDITA J. MACABULOS, respondents. Ombudsman; Prescription; The use of the word may in Section 20(5) of RA 6770 indicates that it is within the discretion of the Ombudsman whether to conduct an investigation when a complaint is filed after one year from the occurrence of the complained act or omission.The use of the word may is ordinarily construed as permissive or directory, indicating that a matter of discretion is involved. Thus, the word may, when used in a statute, does not generally suggest compulsion. The use of the word may in Section 20(5) of RA 6770 indicates that it is within the discretion of the Ombudsman whether to conduct an investigation when a complaint is filed after one year from the occurrence of the complained act or omission. Same; Same; Even if the complaint was filed more than one year after the alleged occurrence of the act complained of, it was within the discretion of the Ombudsman whether to pursue the investigation or dismiss the complaint.In this case, even if the complaint was filed more than one year after the alleged occurrence of the act complained of, it was within the discretion of the Ombudsman whether to pursue the investigation or dismiss the complaint. Same; Appeals; Under Section 27 of RA 6770, findings of fact by the Ombudsman when supported by substantial evidence are conclusive.There was substantial evidence to hold Dr. Macabulos liable for dishonesty, falsification, grave misconduct, conduct grossly prejudicial to the best interest of the service, and violation of reasonable office rules and regulations defined and penalized under the Civil Service Laws. Under Section 27 of RA 6770, findings of fact by the Ombudsman when supported by substantial evidence are conclusive. Same; Omnibus Civil Service Rules and Regulations; Penalties; Under Section 22, Rule XIV of the Omnibus Rules, dishonesty, falsification of official document, and grave misconduct are grave offenses punishable by dismissal.In Resolution No. 91-1631 dated 27 December 1991, the Civil Service Commission (CSC) promulgated the Omnibus Civil Service Rules and Regulations (Omnibus Rules), pursuant to Section 12(2), Chapter 3, Title I(A), Book V of Executive Order No. 292 (EO 292). Under Section 22, Rule XIV of the Omnibus Rules, dishonesty, falsification of official document, and grave misconduct are grave offenses punishable by dismissal. Conduct grossly prejudicial to the best interest of the service is also a grave offense punishable by suspension for 6 months and 1 day to 1 year for the first offense while violation of reasonable office rules and regulations is only a light offense punishable by reprimand for the first offense. Under Section 17 of Rule XIV of the Omnibus Rules, if the respondent is found guilty of two or more charges or counts, the penalty to be imposed should be that corresponding to the most serious charge or count and the rest shall be considered as aggravating circumstances. Same; Same; Same; Under the New Uniform Rules, forfeiture of leave credits was deleted as an accessory penalty.Under Section 9, Rule XIV of the

Omnibus Rules, the penalty of dismissal from service carries with it the cancellation of eligibility, forfeiture of leave credits and retirement benefits, and the disqualification for reemployment in the government service. However, under the new Uniform Rules, forfeiture of leave credits was deleted as an accessory penalty. Thus, under Section 58, Rule IV of the Uniform Rules, the penalty of dismissal shall carry with it the cancellation of eligibility, forfeiture of retirement benefits, and the perpetual disqualification for reemployment in the government service, unless otherwise provided in the decision. Same; Same; Same; Appeals; Execution; An appeal shall not stop the decision from being executory; A decision of the Office of the Ombudsman in administrative cases shall be executed as a matter of course.An appeal shall not stop the decision from being executory. In case the penalty is suspension or removal and the respondent wins such appeal, he shall be considered as having been under preventive suspension and shall be paid the salary and such other emoluments that he did not receive by reason of the suspension or removal. A decision of the Office of the Ombudsman in admin istrative cases shall be executed as a matter of course. The Office of the Ombudsman shall ensure that the decision shall be strictly enforced and properly implemented. The refusal or failure by any officer without just cause to comply with an order of the Office of the Ombudsman to remove, suspend, demote, fine, or censure shall be ground for disciplinary action against said officer. Same; Same; Same; Same; Same; The pertinent ruling in Lapid vs. Court of Appeals (334 SCRA 738 [2000]) has already been superseded by the case of In the Matter to Declare in Contempt of Court Hon. Simeon A. Datumanong, Secretary of Department of Public Works and Highways (DPWH) (497 SCRA 626 [2006]), which clearly held that decisions of the Ombudsman are immediately executory even pending appeal.In the case of In the Matter to Declare in Contempt of Court Hon. Simeon A. Datumanong, Secretary of DPWH, 497 SCRA 626 (2006), the Court noted that Section 7 of AO 17 provides for execution of the decisions pending appeal, which provision is similar to Section 47 of the Uniform Rules on Administrative Cases in the Civil Service. More recently, in the 2007 case of Buencamino v. Court of Appeals, 520 SCRA 747 (2007), the primary issue was whether the decision of the Ombudsman suspending petitioner therein from office for six months without pay was immediately executory even pending appeal in the Court of Appeals. The Court held that the pertinent ruling in Lapid v. Court of Appeals, 334 SCRA 738 (2000) has already been superseded by the case of In the Matter to Declare in Contempt of Court Hon. Simeon A. Datumanong, Secretary of DPWH, 497 SCRA 626 (2006), which clearly held that decisions of the Ombudsman are immediately executory even pending appeal. This is a petition for review[1] of the Decision[2] dated 17 March 2003 and the Resolution dated 30 July 2003 of the Court of Appeals in CA-G.R. SP No. 66411. The Facts

On 31 March 1998, Dr. Minda L. Virtudes (Dr. Virtudes) executed a complaintaffidavit[3] charging Dr. Mercedita J. Macabulos (Dr. Macabulos) with dishonesty, grave misconduct, oppression, conduct grossly prejudicial to the best interest of the service and acts unbecoming a public official in violation of the Civil Service Laws and the Code of Conduct and Ethical Standards for Public Officials and Employees. Dr. Macabulos, who held the position of Medical Officer V at the Department of Education, Culture and Sports, National Capital Region (DECS-NCR), was the Chief of the School Health and Nutrition Unit. Dr. Virtudes was then Supervising Dentist III working under the supervision of Dr. Macabulos. Dr. Virtudes asserted in her complaint that in May 1997, Dr. Macabulos required her to submit dental and medical receipts for the liquidation of Dr. Macabulos' cash advance in the year 1995 amounting to P45,000 for the purchase of dental medicines and supplies. Dr. Virtudes did not submit receipts and invoices considering that she was not yet assigned at the School Health and Nutrition Unit, DECS-NCR when Dr. Macabulos incurred the cash advance. Because of Dr. Virtudes' failure to produce receipts and invoices, Dr. Macabulos allegedly subjected Dr. Virtudes to several forms of harassment by: 1) denying her request for the purchase of dental supplies and equipment; 2) requiring her and her co-workers to sign an "Attendance Log Book" every time they arrived at the office and again before leaving the office even if they were already using the employees' bundy clock and signing the Attendance Sheet in the office; 3) threatening Dr. Virtudes and her co-workers with transfer of assignment; 4) sending letters to Dr. Virtudes threatening to charge her with insubordination and disrespect; and 5) threatening to kill her and her husband or do other harm to her and her family. In her counter-affidavit, Dr. Macabulos denied forcing Dr. Virtudes to make a liquidation as the latter was not yet assigned to her unit at the time the cash advance was made. Dr. Macabulos likewise claimed that while the P45,000 cash advance was in her name being the only bonded employee in their unit, it was Dr. Antonia Lopez-Dee (Dr. Dee), who was then the Supervising Dentist, who used the money to purchase medical and dental supplies. Attached to Dr. Macabulos' counter-affidavit was an unnotarized affidavit[4] of Dr. Dee which admitted, among others, that she requested Dr. Macabulos to make the cash advance. Dr. Macabulos attributed the filing of the complaint against her to professional jealousy. Dr. Virtudes allegedly resented Dr. Macabulos' order, requiring all employees under her supervision to sign an attendance log book. Dr. Macabulos imposed the new requirement as a remedial measure to curb Dr. Virtudes' alleged practice of leaving the office without permission to engage in private

practice at the Philippine Lung Center where Dr. Virtudes' husband was also a dentist. Dr. Macabulos denied that she instigated the transfer of Dr. Virtudes and her two friends to other units and alleged that it was Dr. Virtudes and her friends who requested for the transfer of assignment. In her reply-affidavit, Dr. Virtudes alleged that Dr. Macabulos, in enforcing the use of the attendance log book, singled her out although there were others who failed to sign the log book. Dr. Virtudes denied engaging in private practice. Dr Virtudes pointed out that she confronted Dr. Dee, who disowned the contents of her alleged affidavit which Dr. Macabulos attached to her counter-affidavit. Dr. Virtudes claimed that it was Dr. Macabulos who made the P45,000 cash advance, improperly spent the amount, and later tried to liquidate the same with the tampered Sales Invoice No. 3366 issued by Medsordent Center to conform to the amount of the cash advance. On 29 December 2000, Graft Investigation Officer I Ulysis S. Calumpad (GIO I Calumpad) rendered a decision absolving Dr. Macabulos from the administrative charge. However, Overall Deputy Ombudsman Margarito P. Gervacio, Jr. (Overall Deputy Ombudsman Gervacio) disapproved the decision of GIO I Calumpad. Investigating further, the Ombudsman required Dr. Dee to confirm her statements in her unnotarized affidavit dated 14 September 1998. In reply, Dr. Dee disowned the statements in her unnotarized affidavit. In her sworn affidavit[5] dated 9 May 2001, Dr. Dee stated that although she signed the unnotarized affidavit dated 14 September 1998, the contents of the first page were entirely different from the one attached by Dr. Macabulos in her counter-affidavit. Dr. Dee asserted that as Supervising Dentist, her job involved the requisition of the necessary health and dental supplies but not the purchasing of supplies which was done by the purchasing unit of the School Health and Nutrition Unit which was under Dr. Macabulos. Dr. Dee denied encashing the check for P45,000 which was in the name of Dr. Macabulos. Dr. Dee likewise denied purchasing the supplies indicated in the Medsordent Center sales invoice which was submitted by Dr. Macabulos to liquidate her P45,000 cash advance. In a Memorandum[6] dated 13 June 2001, Graft Investigation Officer II Julita M. Calderon (GIO II Calderon) reversed the decision of GIO I Calumpad. GIO II Calderon found Dr. Macabulos guilty of dishonesty, falsification, grave misconduct, conduct grossly prejudicial to the best interest of the service and violation of reasonable office rules and regulations defined and penalized under the Civil Service Laws. The Memorandum, approved by Overall Deputy Ombudsman Gervacio and Ombudsman Aniano A. Desierto, imposed upon Dr. Macabulos the penalty of dismissal from government service.

On 11 July 2001, Dr. Macabulos filed a motion for reconsideration, which was denied in an Order dated 26 July 2001. On 31 August 2001, Dr. Macabulos filed a petition for review with the Court of Appeals. On 17 March 2003, the Court of Appeals rendered a decision, the dispositive portion of which reads: WHEREFORE, premises considered, the petition is GIVEN DUE COURSE. The assailed memorandum dated June 13, 2001 and the order dated July 26, 2001 of the Office of the Ombudsman in OMB Case No. 0-98-0438 are hereby REVERSED and SET ASIDE. The earlier decision of the GOI I Ulysis S. Calumpad of the Office of the Ombudsman is REINSTATED and the subject complaint DISMISSED. No pronouncement as to costs. SO ORDERED.[7] The Ruling of the Court of Appeals The Court of Appeals held that under Section 20(5) of Republic Act No. 6770 (RA 6770),[8] the Office of the Ombudsman (Ombudsman) can no longer investigate the complaint since the acts complained of were committed more than one year from the filing of the complaint. The Court of Appeals found irregular the reversal of the earlier decision of GIO I Calumpad, absolving Dr. Macabulos from the administrative charge, mainly on the basis of the recantation of Dr. Dee of her previous statements contained in an affidavit. The Court of Appeals held that Dr. Macabulos' retirement from government service did not render the administrative case moot and academic. Lastly, citing Section 27 of RA 6770, the Court of Appeals ruled that the Memorandum Order dated 13 June 2001 of the Ombudsman, imposing upon Dr. Macabulos the penalty of dismissal from government service, is not immediately executory. The Issues Petitioner raises the following issues: THE INTERPRETATION OF THE COURT OF APPEALS OF SEC. 20(5), RA 6770 AS A PRESCRIPTIVE PERIOD ON OMBUDSMAN ADMINISTRATIVE DISCIPLINARY CASES IS UNCONSTITUTIONAL, AS THE SAME UNDULY IMPINGES ON THE INVESTIGATORY AUTHORITY OF THE OMBUDSMAN ON ANY ACT OR OMISSION APPEARING TO BE ILLEGAL, UNJUST, IMPROPER OR INEFFICIENT. IN HIGHLY MERITORIOUS CASES, AS HERE, THE PETITIONER OFFICE OF THE OMBUDSMAN HAS THE DISCRETIONARY AUTHORITY TO CONDUCT

ADMINISTRATIVE INVESTIGATION ON COMPLAINTS FILED MORE THAN ONE (1) YEAR FROM THE OCCURRENCE OF THE ACT OR OMISSION COMPLAINED OF, AND THE RULING OF THE COURT OF APPEALS THAT SUCH INVESTIGATION IS BARRED BY REASON OF PRESCRIPTION IS A GLARING NULLITY. CONTRARY TO THE APPELLATE COURT'S RULING, THERE IS MORE THAN SUBSTANTIAL EVIDENCE PROVING PRIVATE RESPONDENT'S GUILT, AND THE INCULPATORY SWORN STATEMENT OF PRIVATE RESPONDENT'S SUPPOSED OWN WITNESS, BEING ADMISSIBLE IN EVIDENCE AND NOT REBUTTED BY PRIVATE RESPONDENT, WAS CORRECTLY APPRECIATED BY THE OMBUDSMAN IN ADJUDGING PRIVATE RESPONDENT GUILTY OF GROSS MALFEASANCE NECESSITATING HER DISMISSAL FROM SERVICE. THE PENALTY OF DISMISSAL FROM THE SERVICE METED ON PRIVATE RESPONDENT IS IMMEDIATELY EXECUTORY IN ACCORDANCE WITH THE VALID RULE OF EXECUTION PENDING APPEAL UNIFORMLY OBSERVED IN ADMINISTRATIVE DISCIPLINARY CASES, AND THE RULING OF THE COURT OF APPEALS TO THE CONTRARY IS A PATENT NULLITY. CONTRARY TO THE APPELLATE COURT'S RULING, THE PETITIONER OFFICE OF THE OMBUDSMAN TIMELY AND RIGHTFULLY FILED ITS MOTIONS TO INTERVENE AND FOR RECONSIDERATION ON A PATENTLY ERRONEOUS DECISION OF THE COURT OF APPEALS WHICH HAS NOT YET ATTAINED FINALITY.[9] The Ruling of the Court We find the petition meritorious. The Court of Appeals should have granted the motion for intervention filed by the Ombudsman. In its decision, the appellate court not only reversed the order of the Ombudsman but also delved into the investigatory power of the Ombudsman. Since the Ombudsman was not impleaded as a party when the case was appealed to the Court of Appeals in accordance with Section 6, Rule 43 of the Rules of Court,[10] the Ombudsman had no other recourse but to move for intervention and reconsideration of the decision in order to prevent the undue restriction of its constitutionally mandated investigatory power.[11] Prescription The Court of Appeals held that under Section 20(5) of RA 6770, the Ombudsman is already barred by prescription from investigating the complaint since it was filed more than one year from the occurrence of the complained act. We find this interpretation by the appellate court unduly restrictive of the duty of the Ombudsman as provided under the Constitution to investigate on its own, or on

complaint by any person, any act or omission of any public official or employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.[12] Section 20 of RA 6770 reads: Sec. 20. Exceptions. - The Office of the Ombudsman may not conduct the necessary investigation of any administrative act or omission complained of if it believes that: (1) The complainant has an adequate remedy in another judicial or quasi-judicial body; (2) The complaint pertains to a matter outside the jurisdiction of the Office of the Ombudsman; (3) The complaint is trivial, frivolous, vexatious or made in bad faith; (4) The complainant has no sufficient personal interest in the subject matter of the grievance; or (5) The complaint was filed after one (1) year from the occurrence of the act or omission complained of. (Emphasis supplied) The use of the word "may" is ordinarily construed as permissive or directory, indicating that a matter of discretion is involved.[13] Thus, the word "may," when used in a statute, does not generally suggest compulsion. The use of the word "may" in Section 20(5) of RA 6770 indicates that it is within the discretion of the Ombudsman whether to conduct an investigation when a complaint is filed after one year from the occurrence of the complained act or omission. In Filipino v. Macabuhay,[14] the Court interpreted Section 20(5) of RA 6770 in this wise: Petitioner argues that based on the abovementioned provision [Section 20(5) of RA 6770)], respondent's complaint is barred by prescription considering that it was filed more than one year after the alleged commission of the acts complained of. Petitioner's argument is without merit. The use of the word "may" clearly shows that it is directory in nature and not mandatory as petitioner contends. When used in a statute, it is permissive only and operates to confer discretion; while the word "shall" is imperative, operating to impose a duty which may be enforced. Applying Section 20(5), therefore, it is discretionary upon the Ombudsman whether or not to conduct an investigation on a complaint even if it was filed after one year from the occurrence of the act or omission complained of. In fine, the complaint is not barred by prescription.[15] Moreover, Section 20 of RA 6770 has been clarified by Administrative Order No. 17[16] (AO 17), which amended Administrative Order No. 07 (AO 07), otherwise known as the Rules of Procedure of the Office of the Ombudsman. Section 4,

Rule III[17] of the amended Rules of Procedure of the Office of the Ombudsman reads: Section 4. Evaluation. - Upon receipt of the complaint, the same shall be evaluated to determine whether the same may be: a) dismissed outright for any grounds stated under Section 20 of Republic Act No. 6770, provided, however, that the dismissal thereof is not mandatory and shall be discretionary on the part of the Ombudsman or the Deputy Ombudsman concerned; b) treated as a grievance/request for assistance which may be referred to the Public Assistance Bureau, this Office, for appropriate action under Section 2 , Rule IV of this Rules; c) referred to other disciplinary authorities under paragraph 2, Section 23, R.A. 6770 for the taking of appropriate administrative proceedings; d) referred to the appropriate office/agency or official for the conduct of further fact-finding investigation; or e) docketed as an administrative case for the purpose of administrative adjudication by the Office of the Ombudsman. (Emphasis supplied) Thus, in this case, even if the complaint was filed more than one year after the alleged occurrence of the act complained of, it was within the discretion of the Ombudsman whether to pursue the investigation or dismiss the complaint. Substantial Evidence Proving Guilt of Dr. Macabulos Contrary to the appellate court's ruling, there was substantial evidence to hold Dr. Macabulos administratively liable. In the Memorandum dated 13 June 2001, the Ombudsman found that Dr. Macabulos purchased dental items (dentrate and castone) which were not included in the DECS Dental Program, using the P45,000 cash advance intended for the DECS Dental Program. Dr. Macabulos was required to refund the amount for items which were disallowed by the Commission on Audit (COA). Furthermore, the cash advance made on 28 March 1995 which was allegedly used for purchases made on 9 September 1995, was only liquidated in September 1997. The delay in the liquidation of the cash advance was a violation of Section 89 of Presidential Decree No. 1445 (PD 1445).[18] The Ombudsman also found that the dental supplies allegedly purchased were neither inspected nor received by the Supply and Property Unit of DECS-NCR.[19] Upon further investigation by the Ombudsman, it was also discovered that Dr. Macabulos misled the Ombudsman by submitting a falsified affidavit of Dr. Dee to support Dr. Macabulos' claim that it was Dr. Dee who requested the cash advance, encashed the check, and bought dental supplies. In her subsequent sworn affidavit, Dr. Dee stated that when she was made to sign the other affidavit, the contents of the first page were entirely different from the one

submitted by Dr. Macabulos. Dr. Dee denied encashing the check which was under the name of Dr. Macabulos. As then Supervising Dentist, Dr. Dee's job was to request for health and dental supplies but the purchasing of supplies was done by the purchasing unit of the School Health and Nutrition Unit which was under Dr. Macabulos. Contrary to Dr. Macabulos' claim, Dr. Dee emphatically denied that she purchased dental supplies using the P45,000 cash advance of Dr. Macabulos. Indeed, the records reveal that on 13 March 1998, the DECS-NCR Resident COA Auditor issued an Audit Observation Memorandum (Audit Memorandum),[20] stating that Invoice No. 3366 of Medsordent Center purportedly issued on 9 September 1995 in the amount of P45,015 was deliberately tampered to conform to the amount of cash advance sought to be liquidated by Dr. Macabulos. The Audit Memorandum also stated that the items dentrate and castone, which are generally used by dental practitioners in making dental impression, were not included in the DECS Dental Program. Dr. Macabulos then reimbursed the P2,037.50 representing the price of dentrate and castone which COA disallowed. However, on 3 November 1998, the Resident Auditor, by virtue of Section 52(2) of PD 1445,[21] issued a management letter opening the account of Dr. Macabulos. On 3 February 1999, Dr. Macabulos paid P42,962.50[22] as final settlement of her cash advance.[23] Thus, it appears from the records that Dr. Macabulos tried to liquidate with a tampered invoice the cash advance she made two years earlier. The tampered invoice also contained certain items which COA disallowed because the items were not included in the Medical and Dental Program of DECS-NCR. It is highly questionable whether the dental supplies purportedly purchased from Medsordent Center were really distributed to the regional office and the division offices since the Supply Officer of the DECS-NCR issued a certification that the items enumerated in the invoice were neither inspected nor received by the Supply and Property Unit. Furthermore, to evade responsibility, Dr. Macabulos submitted a falsified affidavit of Dr. Dee to make it appear that it was Dr. Dee who requested the cash advance to purchase dental supplies. After the COA issued a management letter opening Dr. Macabulos' account, Dr. Macabulos had to reimburse not only the amount of the disallowed items but also the whole amount of the cash advance. Clearly, there was substantial evidence to hold Dr. Macabulos liable for dishonesty, falsification, grave misconduct, conduct grossly prejudicial to the best interest of the service, and violation of reasonable office rules and regulations defined and penalized under the Civil Service Laws. Under Section 27 of RA 6770, findings of fact by the Ombudsman when supported by substantial evidence are conclusive.

Penalty of Dismissal and its Accessory Penalties In Resolution No. 91-1631 dated 27 December 1991, the Civil Service Commission (CSC) promulgated the Omnibus Civil Service Rules and Regulations (Omnibus Rules), pursuant to Section 12(2), Chapter 3, Title I(A), Book V of Executive Order No. 292 (EO 292).[24] Under Section 22, Rule XIV of the Omnibus Rules, dishonesty, falsification of official document, and grave misconduct are grave offenses punishable by dismissal. Conduct grossly prejudicial to the best interest of the service is also a grave offense punishable by suspension for 6 months and 1 day to 1 year for the first offense while violation of reasonable office rules and regulations is only a light offense punishable by reprimand for the first offense. Under Section 17 of Rule XIV of the Omnibus Rules, if the respondent is found guilty of two or more charges or counts, the penalty to be imposed should be that corresponding to the most serious charge or count and the rest shall be considered as aggravating circumstances. Although the CSC, through Resolution No. 99-1936 dated 31 August 1999, adopted the new "Uniform Rules in Administrative Cases in the Civil Service" (Uniform Rules), which took effect on 27 September 1999, the penalties imposed for the offenses charged in this case are the same under the new Uniform Rules.[25] Thus, the Ombudsman correctly imposed upon Dr. Macabulos the penalty of dismissal. Under Section 9, Rule XIV of the Omnibus Rules, the penalty of dismissal from service carries with it the cancellation of eligibility, forfeiture of leave credits and retirement benefits, and the disqualification for reemployment in the government service.[26] However, under the new Uniform Rules, forfeiture of leave credits was deleted as an accessory penalty. Thus, under Section 58, Rule IV of the Uniform Rules, the penalty of dismissal shall carry with it the cancellation of eligibility, forfeiture of retirement benefits, and the perpetual disqualification for reemployment in the government service, unless otherwise provided in the decision. Similarly, Section 10, Rule III of the Rules of Procedure of the Office of the Ombudsman, as amended by AO 17, provides that "the penalty of dismissal from the service shall carry with it that of cancellation of eligibility, forfeiture of retirement benefits, and the perpetual disqualification for reemployment in the government service, unless otherwise provided in the decision." In this case, since Dr. Macabulos has already retired from the government service, her retirement benefits are forfeited but she is still entitled to receive her leave credits. She is also perpetually disqualified for reemployment in the government service and her civil service eligibility is cancelled. Penalty of Dismissal is Executory Pending Appeal

The Court of Appeals held that the order of the Ombudsman imposing the penalty of dismissal is not immediately executory. The Court of Appeals applied the ruling in Lapid v. Court of Appeals,[27] that all other decisions of the Ombudsman which impose penalties that are not enumerated in Section 27 of RA 6770 are neither final nor immediately executory. In Lapid v. Court of Appeals, the Court anchored its ruling mainly on Section 27 of RA 6770, as supported by Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman. The pertinent provisions read: Section 27 of RA 6770: SEC. 27. Effectivity and Finality of Decisions. - (1) All provisionary orders at the Office of the Ombudsman are immediately effective and executory. A motion for reconsideration of any order, directive or decision of the Office of the Ombudsman must be filed within five (5) days after receipt of written notice and shall be entertained only on any of the following grounds: (1) New evidence has been discovered which materially affects the order, directive or decision; (2) Errors of law or irregularities have been committed prejudicial to the interest of the movant. The motion for reconsideration shall be resolved within three (3) days from filing: Provided, That only one motion for reconsideration shall be entertained. Findings of fact by the Office of the Ombudsman when supported by substantial evidence are conclusive. Any order, directive or decision imposing the penalty of public censure or reprimand, suspension of not more than one month's salary shall be final and unappealable. In all administrative disciplinary cases, orders, directives, or decisions of the Office of the Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt of the written notice of the order, directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the Rules of Court. The above rules may be amended or modified by the Office of the Ombudsman as the interest of justice may require. (Emphasis supplied) Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman (AO 07):

Sec. 7. Finality of decision. - Where the respondent is absolved of the charge, and in case of conviction where the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine equivalent to one month salary, the decision shall be final and unappealable. In all other cases, the decision shall become final after the expiration of ten (10) days from receipt thereof by the respondent, unless a motion for reconsideration or petition for certiorari, shall have been filed by him as prescribed in Section 27 of RA 6770. (Emphasis supplied)

The Court held in Lapid v. Court of Appeals that the Rules of Procedure of the Office of the Ombudsman "mandate that decisions of the Office of the Ombudsman where the penalty imposed is other than public censure or reprimand, suspension of not more than one month salary are still appealable and hence, not final and executory."[28] Subsequently, on 17 August 2000, the Ombudsman issued Administrative Order No. 14-A (AO 14-A),[29] amending Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman. The amendment aims to provide uniformity with other disciplining authorities in the execution or implementation of judgments and penalties in administrative disciplinary cases involving public officials and employees. Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman, as amended by AO 14-A, reads: Section 7. Finality and execution of decision. - Where the respondent is absolved of the charge, and in case of conviction where the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine equivalent to one month salary, the decision shall be final and unappealable. In all other cases, the decision may be appealed within ten (10) days from receipt of the written notice of the decision or order denying the motion for reconsideration. An appeal shall not stop the decision from being executory. In case the penalty is suspension or removal and the respondent wins such appeal, he shall be considered as having been under preventive suspension and shall be paid the salary and such other emoluments that he did not receive by reason of the suspension or removal.(Emphasis supplied) On 15 September 2003, AO 17 was issued, amending Rule III of the Rules of Procedure of the Office of the Ombudsman. Thus, Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman was further amended and now reads: Section 7. Finality and execution of decision. - Where the respondent is absolved of the charge, and in case of conviction where the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine equivalent to one month salary, the decision shall be final, executory and unappealable. In all other cases, the decision may be appealed to the Court of

Appeals on a verified petition for review under the requirements and conditions set forth in Rule 43 of the Rules of Court, within fifteen (15) days from the receipt of the written Notice of the Decision or Order denying the Motion for Reconsideration. An appeal shall not stop the decision from being executory. In case the penalty is suspension or removal and the respondent wins such appeal, he shall be considered as having been under preventive suspension and shall be paid the salary and such other emoluments that he did not receive by reason of the suspension or removal. A decision of the Office of the Ombudsman in administrative cases shall be executed as a matter of course. The Office of the Ombudsman shall ensure that the decision shall be strictly enforced and properly implemented. The refusal or failure by any officer without just cause to comply with an order of the Office of the Ombudsman to remove, suspend, demote, fine, or censure shall be ground for disciplinary action against said officer. (Emphasis supplied) Hence, in the case of In the Matter to Declare in Contempt of Court Hon. Simeon A. Datumanong, Secretary of DPWH,[30] the Court noted that Section 7 of AO 17 provides for execution of the decisions pending appeal, which provision is similar to Section 47 of the Uniform Rules on Administrative Cases in the Civil Service.[31] More recently, in the 2007 case of Buencamino v. Court of Appeals,[32] the primary issue was whether the decision of the Ombudsman suspending petitioner therein from office for six months without pay was immediately executory even pending appeal in the Court of Appeals. The Court held that the pertinent ruling in Lapid v. Court of Appeals has already been superseded by the case of In the Matter to Declare in Contempt of Court Hon. Simeon A. Datumanong, Secretary of DPWH, which clearly held that decisions of the Ombudsman are immediately executory even pending appeal. Based on the foregoing, we hold that the Ombudsman's order imposing the penalty of dismissal on Dr. Macabulos was immediately executory even pending appeal in the Court of Appeals. WHEREFORE, we GRANT the petition. We SET ASIDE the Decision dated 17 March 2003 and the Resolution dated 30 July 2003 of the Court of Appeals in CA-G.R. SP No. 66411. We REINSTATE the Memorandum Order dated 13 June 2001 and the Order dated 26 July 2001 of the Office of the Ombudsman, dismissing Dr. Mercedita J. Macabulos from the government service. Since Dr. Mercedita J. Macabulos has already retired from the government service, her retirement benefits are forfeited except her accrued leave credits. She is also perpetually disqualified for reemployment in the government service and her civil

service eligibility is cancelled. SO ORDERED. SUPREME COURT REPORTS ANNOTATED Amon Trading Corporation vs. Court of Appeals G.R. No. 158585. December 13, 2005.* AMON TRADING CORPORATION and JULIANA MARKETING, petitioners, vs. HON. COURT OF APPEALS and TRI-REALTY DEVELOPMENT AND CONSTRUCTION CORPORATION, respondents. Statutory Construction; Words and Phrases; The term and/or was held to mean that effect shall be given to both the conjunctive and and disjunctive or; or that one word or the other may be taken accordingly as one or the other will best effectuate the intended purpose. It was accordingly ordinarily held that in using the term and/or the word and and the word or are to be used interchangeably.Without doubt, no vinculum could be said to exist between petitioners and private respondent. There is likewise nothing meaty about the assertion of private respondent that inasmuch as the delivery receipts as well as the purchase order were for the account of Lines & Spaces/Tri-Realty, then petitioners should have been placed on guard that it was private respondent which is the principal of Sanchez. In China Banking Corp. v. Members of the Board of Trustees, Home Development Mutual Fund and the later case of Romulo, Mabanta, Buenaventura, Sayoc and De los Angeles v. Home Development Mutual Fund, the term and/or was held to mean that effect shall be given to both the conjunctive and and the disjunctive or; or that one word or the other may be taken accordingly as one or the other will best effectuate the intended purpose. It was accordingly ordinarily held that in using the term and/or the word and and the word or are to be used interchangeably. Agency; In a bevy of cases as the avuncular case of Victorias Milling Co., vs. Court of Appeals, 333 SCRA 663 (2000), the Supreme Court decreed from Article 1868 that the basis of agency is representation.In a bevy of cases such as the avuncular case of Victorias Milling Co., Inc. v. Court of Appeals, the Court decreed from Article 1868 that the basis of agency is representation. . . . On the part of the principal, there must be an actual intention to appoint or an intention naturally inferable from his words or actions and on the part of the agent, there must be an intention to accept the appointment and act on it, and in the absence of such intent, there is generally no agency. One factor which most clearly distinguishes agency from other legal concepts is control; one personthe agentagrees to act under the control or direction of anotherthe principal. Indeed, the very word agency has come to connote control by the principal. The control factor, more than any other, has caused the courts to put contracts between principal and agent in a separate category. Same; Without any contract of any hard evidence to show any privity of contract

between it and petitioners, private respondents claim against petitioners lacks legal foothold.Eleanor Sanchez has absconded to the United States of America and the story of what happened to the check refund may be forever locked with her. Lines & Spaces, in its Answer to the Complaint, washed its hands of the apparent ruse perpetuated by Sanchez, but argues that if at all, it was merely an intermediary between petitioners and private respondent. With no other way out, Lines & Spaces was a no-show at the trial proceedings so that eventually, its counsel had to withdraw his appearance because of his clients vanishing act. Left with an empty bag, so to speak, private respondent now puts the blame on petitioners. But this Court finds plausible the stance of petitioners that they had no inkling of the deception that was forthcoming. Indeed, without any contract or any hard evidence to show any privity of contract between it and petitioners, private respondents claim against petitioners lacks legal foothold.

-- This is an appeal by certiorari from the Decision[1] dated 28 November 2002 of the Court of Appeals in CA-G.R. CV No. 60031, reversing the Decision of the Regional Trial Court of Quezon City, Branch 104, and holding petitioners Amon Trading Corporation and Juliana Marketing to be solidarily liable with Lines & Spaces Interiors Center (Lines & Spaces) in refunding private respondent TriRealty Development and Construction Corporation (Tri-Realty) the amount corresponding to the value of undelivered bags of cement. The undisputed facts:

Private respondent Tri-Realty is a developer and contractor with projects in Bulacan and Quezon City. Sometime in February 1992, private respondent had difficulty in purchasing cement needed for its projects. Lines & Spaces, represented by Eleanor Bahia Sanchez, informed private respondent that it could obtain cement to its satisfaction from petitioners, Amon Trading Corporation and its sister company, Juliana Marketing. On the strength of such representation, private respondent proceeded to order from Sanchez Six Thousand Fifty (6,050) bags of cement from petitioner Amon Trading Corporation, and from Juliana Marketing, Six Thousand (6,000) bags at P98.00/bag. Private respondent, through Mrs. Sanchez of Lines & Spaces, paid in advance the amount of P592,900.00 through Solidbank Managers Check No. 0011565 payable to Amon Trading Corporation, and the amount of P588,000.00 payable to Juliana Marketing, through Solidbank Managers Check No. 0011566. A certain Weng Chua signed the check vouchers for Lines & Spaces while Mrs. Sanchez issued receipts for the two managers checks. Private respondent likewise paid to Lines & Spaces an advance fee for the 12,050 cement bags at the rate of P7.00/bag, or a total of P84,350.00, in consideration of the facilitation

of the orders and certainty of delivery of the same to the private respondent. Solidbank Managers Check Nos. 0011565 and 0011566 were paid by Sanchez to petitioners. There were deliveries to private respondent from Amon Trading Corporation and Juliana Marketing of 3,850 bags and 3,000 bags, respectively, during the period from April to June 1992. However, the balance of 2,200 bags from Amon Trading Corporation and 3,000 bags from Juliana Marketing, or a total of 5,200 bags, was not delivered. Private respondent, thus, sent petitioners written demands but in reply, petitioners stated that they have already refunded the amount of undelivered bags of cement to Lines and Spaces per written instructions of Eleanor Sanchez. Left high and dry, with news reaching it that Eleanor Sanchez had already fled abroad, private respondent filed this case for sum of money against petitioners and Lines & Spaces. Petitioners plead in defense lack of right or cause of action, alleging that private respondent had no privity of contract with them as it was Lines & Spaces/TriRealty, through Mrs. Sanchez, that ordered or purchased several bags of cement and paid the price thereof without informing them of any special arrangement nor disclosing to them that Lines & Spaces and respondent corporation are distinct and separate entities. They added that there were purchases or orders made by Lines & Spaces/Tri-Realty which they were about to deliver, but were cancelled by Mrs. Sanchez and the consideration of the cancelled purchases or orders was later reimbursed to Lines & Spaces. The refund was in the form of a check payable to Lines & Spaces. Lines & Spaces denied in its Answer that it is represented by Eleanor B. Sanchez and pleads in defense lack of cause of action and in the alternative, it raised the defense that it was only an intermediary between the private respondent and petitioners.[2] Soon after, though, counsel for Lines & Spaces moved to withdraw from the case for the reason that its client was beyond contact. On 29 January 1998, the Regional Trial Court of Quezon City, Branch 104, found Lines & Spaces solely liable to private respondent and absolved petitioners of any liability. The dispositive portion of the trial courts Decision reads: Wherefore, judgment is hereby rendered ordering defendant Lines and Spaces Interiors Center as follows: to pay plaintiff on the complaint the amount of P47,950.00 as refund of the fee for the undelivered 5,200 bags of cement at the rate of P7.00 per bag; the amount of P509,600.00 for the refund of the price of the 5,200 undelivered bags of cement at P98.00 per bag; the amount of P2,000,000.00 for compensatory damages; as well as the amount of

P639,387.50 as attorneys fees; and to pay Amon Trading and Juliana Marketing, Inc. on the crossclaim the sum of P200,000.00 as attorneys fees.[3]

Private Respondent Tri-Realty partially appealed from the trial courts decision absolving Amon Trading Corporation and Juliana Marketing of any liability to TriRealty. In the presently assailed Decision, the Court of Appeals reversed the decision of the trial court and held petitioners Amon Trading Corporation and Juliana Marketing to be jointly and severally liable with Lines & Spaces for the undelivered bags of cement. The Court of Appeals disposedWHEREFORE, premises considered, the decision of the court a quo is hereby REVERSED AND SET ASIDE, and another one is entered ordering the following: Defendant-appellee Amon Trading Corporation is held liable jointly and severally with defendant-appellee Lines and Spaces Interiors Center in the amount of P215,600.00 for the refund of the price of 2,200 undelivered bags of cement. Defendant-appellee Juliana Marketing is held liable jointly and severally with defendant-appellee Lines and Spaces Interiors Center in the amount of P294,000.00 for the refund of the price of 3,000 undelivered bags of cement. The defendant-appellee Lines and Spaces Interiors Center is held solely in the amount of P47,950.00 as refund of the fee for the 5,200 undelivered bags of cement to the plaintiff-appellant Tri-Realty Development and Construction Corporation. The awards of compensatory damages and attorneys fees are DELETED. The cross claim of defendants-appellees Amon Trading Corporation and Juliana Marketing is DISMISSED for lack of merit. No pronouncement as to costs.[4]

Pained by the ruling, petitioners elevated the case to this Court via the present petition for review to challenge the Decision and Resolution of the Court of Appeals on the following issues: I. WHETHER OR NOT THERE WAS A CONTRACT OF AGENCY

BETWEEN LINES AND SPACES INTERIOR CENTER AND RESPONDENT; II. WHETHER OR NOT PETITIONERS AND RESPONDENT HAS PRIVITY OF CONTRACT.[5]

At the focus of scrutiny is the issue of whether or not the Court of Appeals committed reversible error in ruling that petitioners are solidarily liable with Lines & Spaces. The key to unlocking this issue is to determine whether or not Lines & Spaces is the private respondents agent and whether or not there is privity of contract between petitioners and private respondent. We shall consider these issues concurrently as they are interrelated. Petitioners, in their brief, zealously make a case that there was no contract of agency between Lines & Spaces and private respondent.[6] Petitioners strongly assert that they did not have a hint that Lines & Spaces and Tri-Realty are two different and distinct entities inasmuch as Eleanor Sanchez whom they have dealt with just represented herself to be from Lines & Spaces/Tri-Realty when she placed her order for the delivery of the bags of cement. Hence, no privity of contract can be said to exist between petitioners and private respondent.[7] Private respondent, on the other hand, goes over the top in arguing that contrary to their claim of innocence, petitioners had knowledge that Lines & Spaces, as represented by Eleanor Sanchez, was a separate and distinct entity from TriRealty.[8] Then, too, private respondent stirs up support for its contention that contrary to petitioners' claim, there was privity of contract between private respondent and petitioners.[9] Primarily, there was no written contract entered into between petitioners and private respondent for the delivery of the bags of cement. As gleaned from the records, and as private respondent itself admitted in its Complaint, private respondent agreed with Eleanor Sanchez of Lines & Spaces for the latter to source the cement needs of the former in consideration of P7.00 per bag of cement. It is worthy to note that the payment in managers checks was made to Eleanor Sanchez of Lines & Spaces and was not directly paid to petitioners. While the managers check issued by respondent company was eventually paid to petitioners for the delivery of the bags of cement, there is obviously nothing from the face of said managers check to hint that private respondent was the one making the payments. There was likewise no intimation from Sanchez that the purchase order placed by her was for private respondents benefit. The meeting of minds, therefore, was between private respondent and Eleanor Sanchez of Lines & Spaces. This contract is distinct and separate from

the contract of sale between petitioners and Eleanor Sanchez who represented herself to be from Lines & Spaces/Tri-Realty, which, per her representation, was a single account or entity. The records bear out, too, Annex A showing a check voucher payable to Amon Trading Corporation for the 6,050 bags of cement received by a certain Weng Chua for Mrs. Eleanor Sanchez of Lines & Spaces, and Annex B which is a check voucher bearing the name of Juliana Marketing as payee, but was received again by said Weng Chua. Nowhere from the face of the check vouchers is it shown that petitioners or any of their authorized representatives received the payments from respondent company. Also on record are the receipts issued by Lines & Spaces, signed by Eleanor Bahia Sanchez, covering the said managers checks. As Engr. Guido Ganhinhin of respondent Tri-Realty testified, it was Lines & Spaces, not petitioners, which issued to them a receipt for the two (2) managers checks. ThusQ: And what is your proof that Amon and Juliana were paid of the purchases through managers checks? A: Lines & Spaces who represented Amon Trading and Juliana Marketing issued us receipts for the two (2) managers checks we paid to Amon Trading and Juliana Marketing Corporation. Q: I am showing to you check no. 074 issued by Lines & Spaces Interiors Center, what relation has this check to that check you mentioned earlier? A: Official Receipt No. 074 issued by Lines & Spaces Interiors Center was for the P592,900.00 we paid to Amon Trading Corporation for 6,050 bags of cement. Q: Now there appears a signature in that receipt above the printed words authorized signature, whose signature is that? A: The signature of Mrs. Eleanor Bahia Sanchez, the representative of Lines and Spaces. Q: Why do you know that that is her signature?

A: She is quite familiar with me and I saw her affix her signature upon issuance of the receipt.[10] (Emphasis supplied.)

Without doubt, no vinculum could be said to exist between petitioners and private respondent. There is likewise nothing meaty about the assertion of private respondent that inasmuch as the delivery receipts as well as the purchase order were for the account of Lines & Spaces/Tri-Realty, then petitioners should have been placed on guard that it was private respondent which is the principal of Sanchez. In China Banking Corp. v. Members of the Board of Trustees, Home Development Mutual Fund[11] and the later case of Romulo, Mabanta, Buenaventura, Sayoc and De los Angeles v. Home Development Mutual Fund,[12] the term and/or was held to mean that effect shall be given to both the conjunctive and and the disjunctive or; or that one word or the other may be taken accordingly as one or the other will best effectuate the intended purpose. It was accordingly ordinarily held that in using the term "and/or" the word "and" and the word "or" are to be used interchangeably. By analogy, the words Lines & Spaces/Tri-Realty mean that effect shall be given to both Lines & Spaces and Tri-Realty or that Lines & Spaces and TriRealty may be used interchangeably. Hence, petitioners were not remiss when they believed Eleanor Sanchezs representation that Lines & Spaces/Tri-Realty refers to just one entity. There was, therefore, no error attributable to petitioners when they refunded the value of the undelivered bags of cement to Lines & Spaces only. There is likewise a dearth of evidence to show that the case at bar is an openand-shut case of agency between private respondent and Lines & Spaces. Neither Eleanor Sanchez nor Lines & Spaces was an agent for private respondent, but rather a supplier for the latters cement needs. The Civil Code defines a contract of agency as follows: Art. 1868. By the contract of agency a person binds himself to render some service or to do something in representation or on behalf of another, with the consent or authority of the latter.

In a bevy of cases such as the avuncular case of Victorias Milling Co., Inc. v. Court of Appeals,[13] the Court decreed from Article 1868 that the basis of agency is representation. . . . On the part of the principal, there must be an actual intention to appoint or an intention naturally inferable from his words or actions and on the part of the agent, there must be an intention to accept the appointment and act on it, and in

the absence of such intent, there is generally no agency. One factor which most clearly distinguishes agency from other legal concepts is control; one person the agent - agrees to act under the control or direction of another - the principal. Indeed, the very word "agency" has come to connote control by the principal. The control factor, more than any other, has caused the courts to put contracts between principal and agent in a separate category.

Here, the intention of private respondent, as the Executive Officer of respondent corporation testified on, was merely for Lines & Spaces, through Eleanor Sanchez, to supply them with the needed bags of cement. Q: A: Q: Do you know the defendant Lines & Spaces in this case? Yes, sir. How come you know this defendant?

A: Lines & Spaces represented by Eleanor Bahia Sanchez offered to supply us cement when there was scarcity of cement experienced in our projects.[14] (Emphasis supplied)

We cannot go along the Court of Appeals disquisition that Amon Trading Corporation and Juliana Marketing should have required a special power of attorney form when they refunded Eleanor B. Sanchez the cost of the undelivered bags of cement. All the quibbling about whether Lines & Spaces acted as agent of private respondent is inane because as illustrated earlier, petitioners took orders from Eleanor Sanchez who, after all, was the one who paid them the managers checks for the purchase of cement. Sanchez represented herself to be from Lines & Spaces/Tri-Realty, purportedly a single entity. Inasmuch as they have never directly dealt with private respondent and there is no paper trail on record to guide them that the private respondent, in fact, is the beneficiary, petitioners had no reason to doubt the request of Eleanor Sanchez later on to refund the value of the undelivered bags of cement to Lines & Spaces. Moreover, the check refund was payable to Lines & Spaces, not to Sanchez, so there was indeed no cause to suspect the scheme. The fact that the deliveries were made at the construction sites of private respondent does not by itself raise suspicion that petitioners were delivering for private respondent. There was no sufficient showing that petitioners knew that the delivery sites were that of private respondent and for another thing, the deliveries were made by petitioners men who have no business nosing around their clients affairs.

Parenthetically, Eleanor Sanchez has absconded to the United States of America and the story of what happened to the check refund may be forever locked with her. Lines & Spaces, in its Answer to the Complaint, washed its hands of the apparent ruse perpetuated by Sanchez, but argues that if at all, it was merely an intermediary between petitioners and private respondent. With no other way out, Lines & Spaces was a no-show at the trial proceedings so that eventually, its counsel had to withdraw his appearance because of his clients vanishing act. Left with an empty bag, so to speak, private respondent now puts the blame on petitioners. But this Court finds plausible the stance of petitioners that they had no inkling of the deception that was forthcoming. Indeed, without any contract or any hard evidence to show any privity of contract between it and petitioners, private respondents claim against petitioners lacks legal foothold. Considering the vagaries of the case, private respondent brought the wrong upon itself. As adeptly surmised by the trial court, between petitioners and private respondent, it is the latter who had made possible the wrong that was perpetuated by Eleanor Sanchez against it so it must bear its own loss. It is in this sense that we must apply the equitable maxim that as between two innocent parties, the one who made it possible for the wrong to be done should be the one to bear the resulting loss.[15] First, private respondent was the one who had reposed too much trust on Eleanor Sanchez for the latter to source its cement needs. Second, it failed to employ safety nets to steer clear of the rip-off. For such huge sums of money involved in this case, it is surprising that a corporation such as private respondent would pay its construction materials in advance instead of in credit thus opening a window of opportunity for Eleanor Sanchez or Lines & Spaces to pocket the remaining balance of the amount paid corresponding to the undelivered materials. Private respondent likewise paid in advance the commission of Eleanor Sanchez for the materials that have yet to be delivered so it really had no means of control over her. Finally, there is no paper trail linking private respondent to petitioners thereby leaving the latter clueless that private respondent was their true client. Private respondent should have, at the very least, required petitioners to sign the check vouchers or to issue receipts for the advance payments so that it could have a hold on petitioners. In this case, it was the representative of Lines & Spaces who signed the check vouchers. For its failure to establish any of these deterrent measures, private respondent incurred the risk of not being able to recoup the value of the materials it had paid good money for. WHEREFORE, the present petition is hereby GRANTED. Accordingly, the Decision and the Resolution dated 28 November 2002 and 10 June 2003, of the Court of Appeals in CA-G.R CV No. 60031, are hereby REVERSED and SET ASIDE. The Decision dated 29 January 1998 of the Regional Trial Court of Quezon City, Branch 104, in Civil Case Q-92-14235 is hereby REINSTATED. No

costs. SO ORDERED.