RULE 64/G.R. No. 188818 May 31, 2011 TOMAS R. OSMEÑA, in his personal capacity and in his capacity as City Mayor of Cebu City, Petitioner, vs. THE COMMISSION ON AUDIT, Respondent.

 EN BANC

G.R. No. 188818               May 31, 2011

TOMAS R. OSMEÑA, in his personal capacity and in his capacity as City Mayor of Cebu City, Petitioner,
vs.
THE COMMISSION ON AUDIT, Respondent.

D E C I S I O N

BRION, J.:

Before the Court is the Petition for Certiorari¹ filed by Tomas R. Osmeña, former mayor of the City of Cebu, under Rule 64 of the Rules of Court. The petition seeks the reversal of the May 6, 2008 Decision² and the June 8, 2009 Resolution³ of the respondent Commission on Audit (COA), which disallowed the damages, attorney’s fees and litigation expenses awarded in favor of two construction companies in the collection cases filed against the City of Cebu, and made these charges the personal liability of Osmeña for his failure to comply with the legal requirements for the disbursement of public funds.

BACKGROUND FACTS

The City of Cebu was to play host to the 1994 Palarong Pambansa (Palaro). In preparation for the games, the City engaged the services of WT Construction, Inc. (WTCI) and Dakay Construction and Development Company (DCDC) to construct and renovate the Cebu City Sports Complex. Osmeña, then city mayor, was authorized by the Sangguniang Panlungsod (Sanggunian) of Cebu to represent the City and to execute the construction contracts.

While the construction was being undertaken, Osmeña issued a total of 20 Change/Extra Work Orders to WTCI, amounting to ₱35,418,142.42 (about 83% of the original contract price), and to DCDC, amounting to ₱15,744,525.24 (about 31% of the original contract price). These Change/Extra Work Orders were not covered by any Supplemental Agreement, nor was there a prior authorization from the Sanggunian. Nevertheless, the work proceeded on account of the "extreme urgency and need to have a suitable venue for the Palaro."⁴ The Palaro was successfully held at the Cebu City Sports Complex during the first six months of 1994.

Thereafter, WTCI and DCDC demanded payment for the extra work they performed in the construction and renovation of the sports complex. A Sanggunian member, Councilor Augustus Young, sponsored a resolution authorizing Osmeña to execute the supplemental agreements with WTCI and DCDC to cover the extra work performed, but the other Sanggunian members refused to pass the resolution. Thus, the extra work completed by WTCI and DCDC was not covered by the necessary appropriation to effect payment, prompting them to file two separate collection cases before the Regional Trial Court (RTC) of Cebu City (Civil Case Nos. CEB-17004⁵ and CEB-17155⁶ ). The RTC found the claims meritorious, and ordered the City to pay for the extra work performed. The RTC likewise awarded damages, litigation expenses and attorney’s fees in the amount of ₱2,514,255.40 to WTCI⁷ and ₱102,015.00 to DCDC.⁸ The decisions in favor of WTCI and DCDC were affirmed on appeal, subject to certain modifications as to the amounts due, and have become final. To satisfy the judgment debts, the Sanggunian finally passed the required appropriation ordinances.

During post-audit, the City Auditor issued two notices disallowing the payment of litigation expenses, damages, and attorney’s fees to WTCI and DCDC.⁹ The City Auditor held Osmeña, the members of the Sanggunian, and the City Administrator liable for the ₱2,514,255.40 and ₱102,015.00 awarded to WTCI and DCDC, respectively, as damages, attorney’s fees, and interest charges. These amounts, the City Auditor concluded, were unnecessary expenses for which the public officers should be held liable in their personal capacities pursuant to the law.

Osmeña and the members of the Sanggunian sought reconsideration of the disallowance with the COA Regional Office, which, through a 2nd Indorsement dated April 30, 2003,¹⁰ modified the City Auditor’s Decision by absolving the members of the sanggunian from any liability. It declared that the payment of the amounts awarded as damages and attorney’s fees should solely be Osmeña’s liability, as it was him who ordered the change or extra work orders without the supplemental agreement required by law, or the prior authorization from the Sanggunian. The Sanggunian members cannot be held liable for refusing to enact the necessary ordinance appropriating funds for the judgment award because they are supposed to exercise their own judgment and discretion in the performance of their functions; they cannot be mere "rubber stamps" of the city mayor.

The COA Regional Office’s Decision was sustained by the COA’s National Director for Legal and Adjudication (Local Sector) in a Decision dated January 16, 2004.¹¹ Osmeña filed an appeal against this Decision.

On May 6, 2008, the COA issued the assailed Decision which affirmed the notices of disallowance.¹² Osmeña received a copy of the Decision on May 23, 2008. Eighteen days after or on June 10, 2008, Osmeña filed a motion for reconsideration of the May 6, 2008 COA Decision.

The COA denied Osmeña’s motion via a Resolution dated June 8, 2009.¹³ The Office of the Mayor of Cebu City received the June 8, 2009 Resolution of the COA on June 29, 2009. A day before, however, Osmeña left for the United States of America for his check-up after his cancer surgery in April 2009 and returned to his office only on July 15, 2009. Thus, it was only on July 27, 2009 that Osmeña filed the present petition for certiorari under Rule 64 to assail the COA’s Decision of May 6, 2008 and Resolution of June 8, 2009.

THE PETITION

Rule 64 of the Rules of Court governs the procedure for the review of judgments and final orders or resolutions of the Commission on Elections and the COA. Section 3 of the same Rule provides for a 30-day period, counted from the notice of the judgment or final order or resolution sought to be reviewed, to file the petition for certiorari. The Rule further states that the filing of a motion for reconsideration of the said judgment or final order or resolution interrupts the 30-day period.

Osmeña filed his motion for reconsideration, of the COA’s May 6, 2008 Decision, 18 days from his receipt thereof, leaving him with 12 days to file a Rule 64 petition against the COA ruling. He argues that the remaining period should be counted not from the receipt of the COA’s June 8, 2009 Resolution by the Office of the Mayor of Cebu City on June 29, 2009, but from the time he officially reported back to his office on July 15, 2009, after his trip abroad. Since he is being made liable in his personal capacity, he reasons that the remaining period should be counted from his actual knowledge of the denial of his motion for reconsideration. Corollary, he needed time to hire a private counsel who would review his case and prepare the petition.

Osmeña pleads that his petition be given due course for the resolution of the important issues he raised. The damages and interest charges were awarded on account of the delay in the payment of the extra work done by WTCI and DCDC, which delay Osmeña attributes to the refusal of the Sanggunian to appropriate the necessary amounts. Although Osmeña acknowledges the legal necessity for a supplemental agreement for any extra work exceeding 25% of the original contract price, he justifies the immediate execution of the extra work he ordered (notwithstanding the lack of the supplemental agreement) on the basis of the extreme urgency to have the construction and repairs on the sports complex completed in time for the holding of the Palaro. He claims that the contractors themselves did not want to embarrass the City and, thus, proceeded to perform the extra work even without the supplemental agreement.

Osmeña also points out that the City was already adjudged liable for the principal sum due for the extra work orders and had already benefitted from the extra work orders by accepting and using the sports complex for the Palaro. For these reasons, he claims that all consequences of the liability imposed, including the payment of damages and interest charges, should also be shouldered by the City and not by him.

THE COURT’S RULING

Relaxation of procedural rules to give effect to a party’s right to appeal

Section 3, Rule 64 of the Rules of Court states:

SEC. 3. Time to file petition.—The petition shall be filed within thirty (30) days from notice of the judgment or final order or resolution sought to be reviewed. The filing of a motion for new trial or reconsideration of said judgment or final order or resolution, if allowed under the procedural rules of the Commission concerned, shall interrupt the period herein fixed. If the motion is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than five (5) days in any event, reckoned from notice of denial. [Emphasis ours.]

Several times in the past, we emphasized that procedural rules should be treated with utmost respect and due regard, since they are designed to facilitate the adjudication of cases to remedy the worsening problem of delay in the resolution of rival claims and in the administration of justice. From time to time, however, we have recognized exceptions to the Rules but only for the most compelling reasons where stubborn obedience to the Rules would defeat rather than serve the ends of justice. Every plea for a liberal construction of the Rules must at least be accompanied by an explanation of why the party-litigant failed to comply with the Rules and by a justification for the requested liberal construction.¹⁴ Where strong considerations of substantive justice are manifest in the petition, this Court may relax the strict application of the rules of procedure in the exercise of its legal jurisdiction.¹⁵

Osmeña cites the mandatory medical check-ups he had to undergo in Houston, Texas after his cancer surgery in April 2009 as reason for the delay in filing his petition for certiorari. Due to his weakened state of health, he claims that he could not very well be expected to be bothered by the affairs of his office and had to focus only on his medical treatment. He could not require his office to attend to the case as he was being charged in his personal capacity.

We find Osmeña’s reasons sufficient to justify a relaxation of the Rules. Although the service of the June 8, 2009 Resolution of the COA was validly made on June 29, 2009 through the notice sent to the Office of the Mayor of Cebu City,¹⁶ we consider July 15, 2009 – the date he reported back to office – as the effective date when he was actually notified of the resolution, and the reckoning date of the period to appeal. If we were to rule otherwise, we would be denying Osmeña of his right to appeal the Decision of the COA, despite the merits of his case.

Moreover, a certiorari petition filed under Rule 64 of the Rules of Court must be verified, and a verification requires the petitioner to state under oath before an authorized officer that he has read the petition and that the allegations therein are true and correct of his personal knowledge. Given that Osmeña was out of the country to attend to his medical needs, he could not comply with the requirements to perfect his appeal of the Decision of the COA.

While the Court has accepted verifications executed by a petitioner’s counsel who personally knows the truth of the facts alleged in the pleading, this was an alternative not available to Osmeña, as he had yet to secure his own counsel. Osmeña could not avail of the services of the City Attorney, as the latter is authorized to represent city officials only in their official capacity.¹⁷ The COA pins liability for the amount of damages paid to WTCI and DCDC on Osmeña in his personal capacity, pursuant to Section 103 of Presidential Decree No. 1445 (PD 1445).¹⁸

Thus, the reckoning date to count the remaining 12 days to file his Rule 64 petition should be counted from July 15, 2009, the date Osmeña had actual knowledge of the denial of his motion for reconsideration of the Decision of the COA and given the opportunity to competently file an appeal thereto before the Court. The present petition, filed on July 27, 2009, was filed within the reglementary period.

Personal liability for expenditures of government fund when made in violation of law

The Court’s decision to adopt a liberal application of the rules stems not only from humanitarian considerations discussed earlier, but also on our finding of merit in the petition.

Section 103 of PD 1445 declares that "[e]xpenditures of government funds or uses of government property in violation of law or regulations shall be a personal liability of the official or employee found to be directly responsible therefor." Notably, the public official’s personal liability arises only if the expenditure of government funds was made in violation of law. In this case, the damages were paid to WTCI and DCDC pursuant to final judgments rendered against the City for its unreasonable delay in paying its obligations. The COA, however, declared that the judgments, in the first place, would not be rendered against the City had it not been for the change and extra work orders that Osmeña made which (a) it considered as unnecessary, (b) were without the Sanggunian’s approval, and (c) were not covered by a supplemental agreement.

The term "unnecessary," when used in reference to expenditure of funds or uses of property, is relative. In Dr. Teresita L. Salva, etc. v. Guillermo N. Carague, etc., et al.,¹⁹ we ruled that "[c]ircumstances of time and place, behavioural and ecological factors, as well as political, social and economic conditions, would influence any such determination. x x x [T]ransactions under audit are to be judged on the basis of not only the standards of legality but also those of regularity, necessity, reasonableness and moderation." The 10-page letter of City Administrator Juan Saul F. Montecillo to the Sanggunian explained in detail the reasons for each change and extra work order; most of which were made to address security and safety concerns that may arise not only during the holding of the Palaro, but also in other events and activities that may later be held in the sports complex. Comparing this with the COA’s general and unsubstantiated declarations that the expenses were "not essential"²⁰ and not "dictated by the demands of good government,"²¹ we find that the expenses incurred for change and extra work orders were necessary and justified.

The COA considers the change and extra work orders illegal, as these failed to comply with Section III, C1 of the Implementing Rules and Regulations of Presidential Decree No. 1594,²² which states that:

5. Change Orders or Extra Work Orders may be issued on a contract upon the approval of competent authorities provided that the cumulative amount of such Change Orders or Extra Work Orders does not exceed the limits of the former's authority to approve original contracts.

6. A separate Supplemental Agreement may be entered into for all Change Orders and Extra Work Orders if the aggregate amount exceeds 25% of the escalated original contract price. All change orders/extra work orders beyond 100% of the escalated original contract cost shall be subject to public bidding except where the works involved are inseparable from the original scope of the project in which case negotiation with the incumbent contractor may be allowed, subject to approval by the appropriate authorities. [Emphases ours.]

Reviewing the facts of the case, we find that the prevailing circumstances at the time the change and extra work orders were executed and completed indicate that the City of Cebu tacitly approved these orders, rendering a supplemental agreement or authorization from the Sanggunian unnecessary.1âwphi1

The Pre-Qualification, Bids and Awards Committee (PBAC), upon the recommendation of the Technical Committee and after a careful deliberation, approved the change and extra work orders. It bears pointing out that two members of the PBAC were members of the Sanggunian as well – Rodolfo Cabrera (Chairman, Committee on Finance) and Ronald Cuenco (Minority Floor Leader). A COA representative was also present during the deliberations of the PBAC. None of these officials voiced any objection to the lack of a prior authorization from the Sanggunian or a supplemental agreement. The RTC Decision in fact mentioned that the Project Post Completion Report and Acceptance was approved by an authorized representative of the City of Cebu on September 21, 1994.²³ "[a]s the projects had been completed, accepted and used by the [City of Cebu]," the RTC ruled that there is "no necessity of [executing] a supplemental agreement."²⁴ Indeed, as we declared in Mario R. Melchor v. COA,²⁵ a supplemental agreement to cover change or extra work orders is not always mandatory, since the law adopts the permissive word "may." Despite its initial refusal, the Sanggunian was eventually compelled to enact the appropriation ordinance in order to satisfy the RTC judgments. Belated as it may be, the enactment of the appropriation ordinance, nonetheless, constitutes as sufficient compliance with the requirements of the law. It serves as a confirmatory act signifying the Sanggunian’s ratification of all the change and extra work orders issued by Osmeña. In National Power Corporation (NPC) v. Hon. Rose Marie Alonzo-Legasto, etc., et al.,²⁶ the Court considered the compromise agreement between the NPC and the construction company as a ratification of the extra work performed, without prior approval from the NPC’s Board of Directors.

As in Melchor,²⁷ we find it "unjust to order the petitioner to shoulder the expenditure when the government had already received and accepted benefits from the utilization of the [sports complex]," especially considering that the City incurred no substantial loss in paying for the additional work and the damages awarded. Apparently, the City placed in a time deposit the entire funds allotted for the construction and renovation of the sports complex. The interest that the deposits earned amounted to ₱12,835,683.15, more than enough to cover the damages awarded to WTCI (₱2,514,255.40) and the DCDC (₱102,015.00). There was "no showing that [the] petitioner was ill-motivated, or that [the petitioner] had personally profited or sought to profit from the transactions, or that the disbursements have been made for personal or selfish ends."²⁸ All in all, the circumstances showed that Osmeña issued the change and extra work orders for the City’s successful hosting of the Palaro, and not for any other "nefarious endeavour."²⁹

WHEREFORE, in light of the foregoing, we hereby GRANT the petitioner’s Petition for Certiorari filed under Rule 64 of the Rules of Court. The respondent’s Decision of May 6, 2008 and Resolution of June 8, 2009 are SET ASIDE.

SO ORDERED.

ARTURO D. BRION
Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice

ANTONIO T. CARPIO Associate Justice	CONCHITA CARPIO MORALES Associate Justice
PRESBITERO J. VELASCO, JR. Associate Justice	ANTONIO EDUARDO B. NACHURA Associate Justice
TERESITA J. LEONARDO-DE CASTRO Associate Justice	DIOSDADO M. PERALTA Associate Justice
LUCAS P. BERSAMIN Associate Justice	(On Official Leave) MARIANO C. DEL CASTILLO* Associate Justice
ROBERTO A. ABAD Associate Justice	MARTIN S. VILLARAMA, JR. Associate Justice
JOSE PORTUGAL PEREZ Associate Justice	JOSE CATRAL MENDOZA Associate Justice

MARIA LOURDES P.A. SERENO
Associate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

RENATO C. CORONA
Chief Justice

Footnotes

* On Official Leave.

¹ Rollo, pp. 4-38.

² Id. at 40-46.

³ Id. at 64-68.

⁴ Rollo, p. 12.

⁵ Id. at 99-128.

⁶ Id. at 129-135

⁷ Id. at 136-140.

⁸ Id. at 141-142.

⁹ Notice of Disallowance Nos. 2002-0003-101(95) and 2002-0003-101 (96).

¹⁰ Rollo, pp. 143-150.

¹¹ Id. at 151-156.

¹² Supra note 2.

¹³ Supra note 3.

¹⁴ Pates v. Commission on Elections, G.R. No. 184915, June 30, 2009, 591 SCRA 481.

¹⁵ Philippine Ports Authority v. Sargasso Construction & Development Corp., G.R. No. 146478, July 30, 2004, 435 SCRA 512.

¹⁶ Section 6, Rule 13 of the Rules of Court states:

SEC. 6. Personal service.— Service of the papers may be made by delivering personally a copy to the party or his counsel, or by leaving it in his office with his clerk or with a person having charge thereof. If no person is found in his office, or his office is not known, or he has no office, then by leaving the copy, between the hours of eight in the morning and six in the evening, at the party’s or counsel’s residence, if known, with a person of sufficient age and discretion then residing therein.

¹⁷ See LOCAL GOVERNMENT CODE, Section 481(3 (i).

¹⁸ Ordaining and Instituting a Government Auditing Code of the Philippines.

¹⁹ G.R. No. 157875, December 19, 2006, 511 SCRA 258, 266.

²⁰ Rollo, p. 153.

²¹ Id. at 148.

²² Prescribing Policies, Guidelines, Rules and Regulations For Government Infrastructure Contracts, effective June 11, 1978.

²³ Rollo, pp. 141-142; Decision of July 19, 1995 in Civil Case No. CEB-17155.

²⁴ Id. at 137-138; Decision of March 17, 1995 in Civil Case No. CEB-17004.

²⁵ G.R. No. 95398, August 16, 1991, 200 SCRA 704, 712.

²⁶ G.R. No. 148318, November 22, 2004, 443 SCRA 342.

²⁷ Supra note 25, at 713.

²⁸ See Salva v. Carague (supra note 19, at 266), where the Court absolved the petitioner from personal liability for the additional expenses incurred for the construction of a school building.

²⁹ Ibid.

RULE 64/G.R. No. 213525 January 27, 2015 FORTUNE LIFE INSURANCE COMPANY, INC., Petitioner, vs. COMMISSION ON AUDIT (COA) PROPER; COA REGIONAL OFFICE NO. VI-WESTERN VISAYAS; AUDIT GROUP LGS-B, PROVINCE OF ANTIQUE; AND PROVINCIAL GOVERNMENT OF ANTIQUE, Respondents.

 EN BANC

G.R. No. 213525               January 27, 2015

FORTUNE LIFE INSURANCE COMPANY, INC., Petitioner,
vs.
COMMISSION ON AUDIT (COA) PROPER; COA REGIONAL OFFICE NO. VI-WESTERN VISAYAS; AUDIT GROUP LGS-B, PROVINCE OF ANTIQUE; AND PROVINCIAL GOVERNMENT OF ANTIQUE, Respondents.

R E S O L U T I O N

BERSAMIN, J.:

Petitioner Fortune Life Insurance Company, Inc. seeks the Reconsideration1 of the resolution promulgated on August 19, 2014,2 whereby the Court dismissed its petition for certiorari under Rule 64 in relation to Rule 65 of the Rules of Courtdue to its non-compliance with the provisions of Rule 64, particularly for:(a) the late filing of the petition; (b) the non-submission of the proof of service and verified declaration; and (c) the failure to show grave abuse of discretion on the part of the respondents.3

Antecedents

Respondent Provincial Government of Antique (LGU) and the petitioner executed a memorandum of agreement concerning the life insurance coverage of qualified barangaysecretaries, treasurers and tanod, the former obligating ₱4,393,593.60for the premium payment, and subsequently submitting the corresponding disbursement voucher to COA Antique for pre-audit.4 The latter office disallowed the payment for lack of legal basis under Republic Act No. 7160 (Local Government Code). Respondent LGU appealed but its appeal was denied.

Consequently, the petitioner filed its petition for money claim in the COA.5 On November 15, 2012, the COA issued its decision denying the petition,6 holding that under Section 447 and Section 458 of the Local Government Code only municipal or city governments are expressly vested with the power to secure group insurance coverage for barangayworkers; and noting the LGU’s failure to comply with the requirement of publication under Section 21 of Republic Act No. 9184 (Government Procurement Reform Act).

The petitioner received a copy of the COA decision on December 14, 2012,7 and filed its motion for reconsideration on January 14, 2013.8 However, the COA denied the motion,9 the denial being received by the petitioner on July 14, 2014.10

Hence, the petitioner filed the petition for certiorari on August 12, 2014, but the petition for certiorari was dismissed as earlier stated through the resolution promulgated on August 19,2014 for (a) the late filing of the petition; (b) the non-submission of the proof of service and verified declaration; and (c) the failure to show grave abuse of discretion on the part of the respondents.

Issues

In its motion for reconsideration, the petitioner submits that it filed the petition for certiorari within the reglementary period following the fresh period rule enunciated in Neypes v. Court of Appeals;11 and that the petition for certiorari included an affidavit of service in compliance with Section 3, Rule 13 of the Rules of Court. It admits having overlooked the submission of a verified declaration; and prays that the declaration attached to the motion for reconsideration be admitted by virtue of its substantial compliance with the Efficient Use of Paper Rule12 by previously submitting a compact disc (CD) containing the petition for certiorari and its annexes. It disagrees with the Court, insisting that it showed and proved grave abuse of discretion on the part of the COA in issuing the assailed decision.

Ruling

We deny the motion for reconsideration for being without merit.

I

Petitioner did not comply with
the rule on proof of service

The petitioner claims that the affidavit of service attached to the petition for certiorari complied with the requirement on proof of service.

The claim is unwarranted. The petitioner obviously ignores that Section 13, Rule 13 of the Rules of Court concerns two types of proof of service, namely: the affidavit and the registry receipt, viz: Section 13. Proof of Service. – x x x. If service is made by registered mail, proof shall be made by such affidavit and the registry receipt issued by the mailing office. The registry return card shall be filed immediately upon its receipt by the sender, or in lieu thereof the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee. Section 13 thus requires that if the service is done by registered mail, proof of service shall consist of the affidavit of the person effecting the mailing and the registry receipt, both of which must be appended to the paper being served. A compliance withthe rule is mandatory, such that

there is no proof of service if either or both are not submitted.13

Here, the petition for certiorari only carried the affidavit of service executed by one Marcelino T. Pascua, Jr., who declared that he had served copies of the petition by registered mail "under Registry Receipt Nos. 70449, 70453, 70458,70498 and 70524 attached tothe appropriate spaces found on pages 64-65 of the petition."14 The petition only bore, however, the cut print-outs of what appeared to be the registry receipt numbers of the registered matters, not the registry receipts themselves. The rule requires to be appended the registry receipts, nottheir reproductions. Hence, the cut print-outs did not substantially comply with the rule. This was the reason why the Court held in the resolution of August 19, 2014 that the petitioner did not comply with the requirement of proof of service.15

II

Fresh Period Ruleunder Neypes
did not apply to the petition for certiorari
under Rule 64 of the Rules of Court

The petitioner posits that the fresh period rule applies because its Rule 64 petition is akin to a petition for review brought under Rule 42 of the Rules of Court; hence, conformably with the fresh period rule, the period to file a Rule 64 petition should also be reckoned from the receipt of the order denying the motion for reconsideration or the motion for new trial.16

The petitioner’s position cannot be sustained.

There is no parity between the petition for review under Rule 42 and the petition for certiorari under Rule 64.

As to the nature of the procedures, Rule 42 governs an appeal from the judgment or final order rendered by the Regional Trial Court in the exercise of its appellate jurisdiction. Such appeal is on a question of fact, or of law, or of mixed question of fact and law, and is given due course only upon a prima facie showing that the Regional Trial Court committed an error of fact or law warranting the reversal or modification of the challenged judgment or final order.17 In contrast, the petition for certiorari under Rule 64 is similar to the petition for certiorari under Rule 65, and assails a judgment or final order of the Commission on Elections (COMELEC), or the Commission on Audit (COA). The petition is not designed to correct only errors of jurisdiction, not errors of judgment.18 Questions of fact cannot be raised except to determine whether the COMELEC or the COA were guilty of grave abuse of discretion amounting to lack or excess of jurisdiction.

The reglementary periods under Rule42 and Rule 64 are different. In the former, the aggrieved party is allowed 15 days to file the petition for review from receipt of the assailed decision or final order, or from receipt of the denial of a motion for new trial or reconsideration.19 In the latter, the petition is filed within 30 days from notice of the judgment or final order or resolution sought to be reviewed. The filing of a motion for new trial or reconsideration, if allowed under the procedural rules of the Commission concerned, interrupts the period; hence, should the motion be denied, the aggrieved party may file the petition within the remaining period, which shall not be less than five days in any event, reckoned from the notice of denial.20

The petitioner filed its motion for reconsideration on January 14, 2013, which was 31 days after receiving the assailed decision of the COA on December 14, 2012.21 Pursuant to Section 3 of Rule 64, it had only five days from receipt of the denial of its motion for reconsideration to file the petition. Considering that it received the notice of the denial on July 14, 2014, it had only until July19, 2014 to file the petition. However, it filed the petition on August 13, 2014, which was 25 days too late.

We ruled in Pates v. Commission on Elections22 that the belated filing of the petition for certiorari under Rule 64 on the belief that the fresh period ruleshould apply was fatal to the recourse. As such, the petitioner herein should suffer the same fate for having wrongly assumed that the fresh period rule under Neypes23 applied. Rules of procedure may be relaxed only to relieve a litigant of an injustice that is not commensurate with the degree of his thoughtlessness in not complying with the prescribed procedure.24 Absent this reason for liberality, the petition cannot be allowed to prosper.

III

Petition for certiorari further lacked merit

The petition for certiorari is also dismissible for its lack of merit.

The petitioner insists on having fully shown that the COA committed grave abuse of discretion, to wit: (1) the challenged decision was rendered by a divided COA proper; (2) the COA took almost a year before promulgating its decision, and more thana year in resolving the motion for reconsideration, in contravention of the express mandate of the Constitution; (3) the resolution denying the motion for reconsideration was made up of only two sentences; (4) the matter involved a novel issue that called for an interpretation of the pertinent provisions of the Local Government Code; and (5) in issuing the resolution, COA Commissioners Grace Pulido-Tan and Heidi L. Mendoza made it appear that they knew the Local Government Code better than former Senator Aquilino Pimentel who offered an opinion on the matter.25

Grave abuse of discretion implies such capricious and whimsical exercise of judgment as to be equivalent to lack or excess of jurisdiction; in other words, power is exercised in an arbitrary or despotic manner by reason of passion, prejudice, or personal hostility; and such exercise is so patent or so gross as to amount to an evasion of a positive duty or to a virtual refusal either to perform the duty enjoined or to act at all in contemplation of law.26

A close look indicates that the petition for certioraridid not sufficiently disclose how the COA committed grave abuse of its discretion. For sure, the bases cited by the petitioner did not approximate grave abuse of discretion. To start with, the supposed delays taken by the COA in deciding the appeal were neither arbitrary nor whimsical on its part. Secondly, the mere terseness of the denial of the motion for reconsideration was not a factor in demonstrating an abuse of discretion. And, lastly, the fact that Senator Pimentel, even if he had been the main proponent of the Local Government Codein the Legislature, expressed an opinion on the issues different from the COA Commissioners’ own did not matter, for it was the latter’s adjudication that had any value and decisiveness on the issues by virtue of their being the Constitutionally officials entrusted with the authority for that purpose.

It is equally relevant to note that the COA denied the money claim of the petitioner for the further reason of lack of sufficient publication as required by the Government Procurement Act. In that light, the COA acted well within its authority in denying the petitioner’s claim.

IV

Petitioner and its counsel
exhibited harshness and disrespect
towards the Court and its Members

The petitioner contends that the Court erred in appreciating the petitioner’s non-compliance with the requirement of the proof of service, alleging that even "a perfunctory scrutiny" of the petition for certiorari and its annexes could have easily shown that it had attached an affidavit of service to the petition. It goes on to make the following statements, viz:

25. Apparently, the staff of the Justice-in-charge failed to verify the PETITION and its annexes up to its last page, thus, the erroneous finding that there was non-submission of the proof of service; 26. In turn, the same omission was hoisted upon the other members of this Honorable Court who took the observation from the office of the Justice-in-charge, to be the obtaining fact, when in truth and in fact, it is not;27

The petitioner and its counsel thereby exhibited their plain inability to accept the ill consequences of their own shortcomings, and instead showed an unabashed propensity to readily lay blame on others like the Court and its Members. In doing so, they employed harsh and disrespectful language that accused the Court and its Members of ignorance and recklessness in the performance of their function of adjudication.

We do not tolerate such harsh and disrespectful language being uttered against the Court and its Members. We consider the accusatory language particularly offensive because it was unfounded and undeserved. As this resolution earlier clarifies, the petition for certiorari did not contain a proper affidavit of service.We do not need to rehash the clarification. Had the petitioner and its counsel been humbler to accept their self-inflicted situation and more contrite, they would have desisted from their harshness and disrespect towards the Court and its Members. Although we are not beyond error, we assure the petitioner and its counsel that our resolutions and determinations are arrived at or reached with much care and caution, aware that the lives, properties and rights of the litigants are always at stake. If there be errors, they would be unintended, and would be the result of human oversight. But in this instance the Court and its Members committed no error. The petition bore only cut reproductions of the supposed registry receipts, which even a mere "perfunctory scrutiny" would not pass as the original registry receipts required by the Rules of Court.

Accordingly, the petitioner and its counsel, Atty. Eduardo S. Fortaleza, should fully explain in writing why they should not be punished for indirect contempt of court for their harsh and disrespectful language towards the Court and its Members; and, in his case, Atty. Fortaleza should further show cause why he should" not be disbarred.

WHEREFORE, the Court DENIES the Motion for Reconsideration for its lack of merit; ORDERS the petitioner and its counsel, Atty. Eduardo S. Fortaleza, to show cause in writing within ten (10) days from notice why they should not be punished for indirect contempt of court; and FURTHER DIRECTS Atty. Fortaleza to show cause in the same period why he should not be disbarred.

SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice

WE CONCUR:

(On Leave)
MARIA LOURDES P. A. SERENO*
Chief Justice

ANTONIO T. CARPIO** Acting Chief Justice	PRESBITERO J. VELASCO, JR. Associate Justice
TERESITA J. LEONARDO-DE CASTRO Associate Justice	(On Official Leave) ARTURO D. BRION*** Associate Justice
DIOSDADO M. PERALTA Associate Justice	MARIANO C. DEL CASTILLO Associate Justice
MARTIN S. VILLARAMA, JR. Associate Justice	JOSE PORTUGAL PEREZ Associate Justice
JOSE CATRAL MENDOZA Associate Justice	BIENVENIDO L. REYES Associate Justice
ESTELA M. PERLAS-BERNABE Associate Justice	MARVIC M.V.F. LEONEN Associate Justice
Associate Justice	Associate Justice

FRANCIS H. JARDELEZA
Associate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above resolution were reached in consultation before the case was assigned to the writer of the opinion of the Court.

ANTONIO T. CARPIO
Acting Chief Justice

Footnotes

* On Leave.

** Acting Chief Justice per Special Order No. 1914.

*** On official leave.

1 Rollo, pp. 229-242.

2 Id. at 226.

3 Id. at 226.

4 Id. at 18.

5 Id. at 13-22.

6 Id. at 71-91.

7 Id. at 92.

8 Id. at 92-104.

9 Id. at 70.

10 Id. at 6.

11 G.R. No. 141524, September 14, 2005, 469 SCRA 633.

12 A.M. No. 11-9-4-SC, November 13, 2012.

13 Cruz v. Court of Appeals, G.R. No. 123340, August 29, 2002, 388 SCRA 72, 80-81.

14 Rollo, p. 224.

15 Supra note 1.

16 Rollo, pp. 234-235.

17 Section 6, Rule 42 of the Rules of Court.

18 Reyna v. Commission on Audit, G.R. No. 167219, February 8, 2011, 647 SCRA 210, 225.

19 Section 1, Rule 42, Rules of Court.

20 Section 3, Rule 64, Rules of Court, states:

Section 3. Time to file petition. – The petition shall be filed within thirty (30) days from notice of the judgment or final order or resolution sought to be reviewed. The filing of a motion for new trial or reconsideration of said judgment or final order or resolution, if allowed under the procedural rules of the Commission concerned, shall interrupt the period herein fixed. If the motion is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than five (5) days in any event, reckoned from notice of denial.

21 Rollo, p. 7.

22 Pates v. Commission on Elections, G.R. No. 184915, June 30, 2009, 591 SCRA 481, 488.

23 Supra, note 11.

24 Canton v. City of Cebu, G.R. No. 152898, February 12, 2007, 515 SCRA 441, 448.

25 Rollo, pp. 239-242.

26 Delos Santos v. Court of Appeals,G.R. No. 169498, December 11, 2008, 573 SCRA 690, 700.

27 Rollo, p. 238.

RULE 64/G.R. No. 184915 June 30, 2009 NILO T. PATES, Petitioner, vs. COMMISSION ON ELECTIONS and EMELITA B. ALMIRANTE, Respondents.

 EN BANC

G.R. No. 184915               June 30, 2009

NILO T. PATES, Petitioner,
vs.
COMMISSION ON ELECTIONS and EMELITA B. ALMIRANTE, Respondents.

R E S O L U T I O N

BRION, J.:

Our Resolution of November 11, 2008 dismissed the petition in caption pursuant to Section 3, Rule 64 of the Rules of Court which provides:

SEC. 3. Time to file petition.—The petition shall be filed within thirty (30) days from notice of the judgment or final order or resolution sought to be reviewed. The filing of a motion for new trial or reconsideration of said judgment or final order or resolution, if allowed under the procedural rules of the Commission concerned, shall interrupt the period herein fixed. If the motion is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than five (5) days in any event, reckoned from notice of denial.

taking into account the following material antecedents:

a. February 1, 2008 – The COMELEC First Division issued its Resolution (assailed in the petition);

b. February 4, 2008 – The counsel for petitioner Nilo T. Pates (petitioner) received a copy of the February 1, 2008 Resolution;

c. February 8, 2008 – The petitioner filed his motion for reconsideration (MR) of the February 1, 2008 Resolution (4 days from receipt of the February 1, 2008 Resolution)

d. September 18, 2008 – The COMELEC en banc issued a Resolution denying the petitioner’s MR (also assailed in the petition).

e. September 22, 2008 – The petitioner received the COMELEC en banc Resolution of September 18, 2008

Under this chronology, the last day for the filing of a petition for certiorari, i.e., 30 days from notice of the final COMELEC Resolution, fell on a Saturday (October 18, 2008), as the petitioner only had the remaining period of 26 days to file his petition, after using up 4 days in preparing and filing his Motion for Reconsideration. Effectively, the last day for filing was October 20, 2008 – the following Monday or the first working day after October 18, 2008. The petitioner filed his petition with us on October 22, 2008 or two days late; hence, our Resolution of dismissal of November 11, 2008.

The Motion for Reconsideration

The petitioner asks us in his "Urgent Motion for Reconsideration with Reiteration for the Issuance of a Temporary Restraining Order" to reverse the dismissal of his petition, arguing that the petition was seasonably filed under the fresh period rule enunciated by the Supreme Court in a number of cases decided beginning the year 2005. The "fresh period" refers to the original period provided under the Rules of Court counted from notice of the ruling on the motion for reconsideration by the tribunal below, without deducting the period for the preparation and filing of the motion for reconsideration.

He claims that, historically, the fresh period rule was the prevailing rule in filing petitions for certiorari. This Court, he continues, changed this rule when it promulgated the 1997 Rules of Civil Procedure and Circular No. 39-98, which both provided for the filing of petitions within the remainder of the original period, the "remainder" being the original period less the days used up in preparing and filing a motion for reconsideration. He then points out that on September 1, 2000 or only three years after, this Court promulgated A.M. No. 00-02-03-SC bringing back the fresh period rule. According to the petitioner, the reason for the change, which we supposedly articulated in Narzoles v. National Labor Relations Commission,¹ was the tremendous confusion generated by Circular No. 39-98.

The fresh period rule, the petitioner further asserts, was subsequently applied by this Court in the following cases:

(1) Neypes v. Court of Appeals² which thenceforth applied the fresh

eriod rule to ordinary appeals of decisions of the Regional Trial Court to the Court of Appeals;

(2) Spouses de los Santos v. Vda. de Mangubat³ reiterating Neypes;

(3) Active Realty and Development Corporation v. Fernandez⁴ which, following Neypes, applied the fresh period rule to ordinary appeals from the decisions of the Municipal Trial Court to the Regional Trial Court; and

(4) Romero v. Court of Appeals⁵ which emphasized that A.M. No. 00-02-03-SC is a curative statute that may be applied retroactively.

A reading of the ruling in these cases, the petitioner argues, shows that this Court has consistently held that the order or resolution denying the motion for reconsideration or new trial is considered as the final order finally disposing of the case, and the date of its receipt by a party is the correct reckoning point for counting the period for appellate review.

The Respondent’s Comment

We asked the respondents to comment on the petitioner’s motion for reconsideration. The Office of the Solicitor General (OSG), citing Section 5, Rule 65 of the Rules of Court and its related cases, asked via a "Manifestation and Motion" that it be excused from filing a separate comment. We granted the OSG’s manifestation and motion.

For her part, respondent Emelita B. Almirante (respondent Almirante) filed a comment stating that: (1) we are absolutely correct in concluding that the petition was filed out of time; and (2) the petitioner’s reliance on Section 4, Rule 65 of the Rules of Court (as amended by A.M. No. 00-02-03-SC) is totally misplaced, as Rule 64, not Rule 65, is the vehicle for review of judgments and final orders or resolutions of the COMELEC. Respondent Almirante points out that Rule 64 and Rule 65 are different; Rule 65 provides for a 60-day period for filing petitions for certiorari, while Rule 64 provides for 30 days.

OUR RULING

We do not find the motion for reconsideration meritorious.

A. As a Matter of Law

Section 7, Article IX-A of the Constitution provides that unless otherwise provided by the Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Court on certiorari by the aggrieved party within 30 days from receipt of a copy thereof. For this reason, the Rules of Court provide for a separate rule (Rule 64) specifically applicable only to decisions of the COMELEC and the Commission on Audit. This Rule expressly refers to the application of Rule 65 in the filing of a petition for certiorari, subject to the exception clause – "except as hereinafter provided."⁶

Even a superficial reading of the motion for reconsideration shows that the petitioner has not challenged our conclusion that his petition was filed outside the period required by Section 3, Rule 64; he merely insists that the fresh period rule applicable to a petition for certiorari under Rule 65 should likewise apply to petitions for certiorari of COMELEC rulings filed under Rule 64.

Rule 64, however, cannot simply be equated to Rule 65 even if it expressly refers to the latter rule. They exist as separate rules for substantive reasons as discussed below. Procedurally, the most patent difference between the two – i.e., the exception that Section 2, Rule 64 refers to – is Section 3 which provides for a special period for the filing of petitions for certiorari from decisions or rulings of the COMELEC en banc. The period is 30 days from notice of the decision or ruling (instead of the 60 days that Rule 65 provides), with the intervening period used for the filing of any motion for reconsideration deductible from the originally-granted 30 days (instead of the fresh period of 60 days that Rule 65 provides).

Thus, as a matter of law, our ruling of November 11, 2008 to dismiss the petition for late filing cannot but be correct. This ruling is not without its precedent; we have previously ordered a similar dismissal in the earlier case of Domingo v. Commission on Elections.⁷ The Court, too, has countless times in the past stressed that the Rules of Court must be followed. Thus, we had this to say in Fortich v. Corona:⁸

Procedural rules, we must stress, should be treated with utmost respect and due regard since they are designed to facilitate the adjudication of cases to remedy the worsening problem of delay in the resolution of rival claims and in the administration of justice. The requirement is in pursuance to the bill of rights inscribed in the Constitution which guarantees that "all persons shall have a right to the speedy disposition of their before all judicial, quasi-judicial and administrative bodies," the adjudicatory bodies and the parties to a case are thus enjoined to abide strictly by the rules. While it is true that a litigation is not a game of technicalities, it is equally true that every case must be prosecuted in accordance with the prescribed procedure to ensure an orderly and speedy administration of justice. There have been some instances wherein this Court allowed a relaxation in the application of the rules, but this flexibility was "never intended to forge a bastion for erring litigants to violate the rules with impunity." A liberal interpretation and application of the rules of procedure can be resorted to only in proper cases and under justifiable causes and circumstances. (Emphasis supplied)

As emphasized above, exceptional circumstances or compelling reasons may have existed in the past when we either suspended the operation of the Rules or exempted a particular case from their application.⁹ But, these instances were the exceptions rather than the rule, and we invariably took this course of action only upon a meritorious plea for the liberal construction of the Rules of Court based on attendant exceptional circumstances. These uncommon exceptions allowed us to maintain the stability of our rulings, while allowing for the unusual cases when the dictates of justice demand a correspondingly different treatment.

Under this unique nature of the exceptions, a party asking for the suspension of the Rules of Court comes to us with the heavy burden of proving that he deserves to be accorded exceptional treatment. Every plea for a liberal construction of the Rules must at least be accompanied by an explanation of why the party-litigant failed to comply with the rules and by a justification for the requested liberal construction.¹⁰

Significantly, the petitioner presented no exceptional circumstance or any compelling reason to warrant the non-application of Section 3, Rule 64 to his petition. He failed to explain why his filing was late. Other than his appeal to history, uniformity, and convenience, he did not explain why we should adopt and apply the fresh period rule to an election case.

To us, the petitioner’s omissions are fatal, as his motion does not provide us any reason specific to his case why we should act as he advocates.

B. As a Matter of Policy

In harking back to the history of the fresh period rule, what the petitioner apparently wants – for reasons of uniformity and convenience – is the simultaneous amendment of Section 3, Rule 64 and the application of his proposed new rule to his case. To state the obvious, any amendment of this provision is an exercise in the power of this Court to promulgate rules on practice and procedure as provided by Section 5(5), Article VIII of the Constitution. Our rulemaking, as every lawyer should know, is different from our adjudicatory function. Rulemaking is an act of legislation, directly assigned to us by the Constitution, that requires the formulation of policies rather than the determination of the legal rights and obligations of litigants before us. As a rule, rulemaking requires that we consult with our own constituencies, not necessarily with the parties directly affected in their individual cases, in order to ensure that the rule and the policy that it enunciates are the most reasonable that we can promulgate under the circumstances, taking into account the interests of everyone – not the least of which are the constitutional parameters and guidelines for our actions. We point these out as our adjudicatory powers should not be confused with our rulemaking prerogative.lavvphil

We acknowledge that the avoidance of confusion through the use of uniform standards is not without its merits. We are not unmindful, too, that no less than the Constitution requires that "motions for reconsideration of [division] decisions shall be decided by the Commission en banc."¹¹ Thus, the ruling of the Commission en banc on reconsideration is effectively a new ruling rendered separately and independently from that made by a division.

Counterbalanced against these reasons, however, are other considerations no less weighty, the most significant of which is the importance the Constitution and this Court, in obedience to the Constitution, accord to elections and the prompt determination of their results.lawphil Section 3, Article IX-C of the Constitution expressly requires that the COMELEC’s rules of procedure should expedite the disposition of election cases. This Court labors under the same command, as our proceedings are in fact the constitutional extension of cases that start with the COMELEC.

Based on these considerations, we do not find convenience and uniformity to be reasons sufficiently compelling to modify the required period for the filing of petitions for certiorari under Rule 64. While the petitioner is correct in his historical data about the Court’s treatment of the periods for the filing of the different modes of review, he misses out on the reason why the period under Section 3, Rule 64 has been retained. The reason, as made clear above, is constitutionally-based and is no less than the importance our Constitution accords to the prompt determination of election results. This reason far outweighs convenience and uniformity. We significantly note that the present petition itself, through its plea for the grant of a restraining order, recognizes the need for haste in deciding election cases.

C. Our Liberal Approach

Largely for the same reason and as discussed below, we are not inclined to suspend the rules to come to the rescue of a litigant whose counsel has blundered by reading the wrong applicable provision. The Rules of Court are with us for the prompt and orderly administration of justice; litigants cannot, after resorting to a wrong remedy, simply cry for the liberal construction of these rules.¹² Our ruling in Lapid v. Laurea¹³ succinctly emphasized this point when we said:

Members of the bar are reminded that their first duty is to comply with the rules of procedure, rather than seek exceptions as loopholes. Technical rules of procedure are not designed to frustrate the ends of justice. These are provided to effect the prompt, proper and orderly disposition of cases and, thus, effectively prevent the clogging of court dockets. Utter disregard of these rules cannot justly be rationalized by harking on the policy of liberal construction. [Emphasis supplied.]

We add that even for this Court, liberality does not signify an unbridled exercise of discretion. It has its limits; to serve its purpose and to preserve its true worth, it must be exercised only in the most appropriate cases.¹⁴

WHEREFORE, premises considered, we DENY the motion for reconsideration for lack of merit. Our Resolution of November 11, 2008 is hereby declared FINAL. Let entry of judgment be made in due course.

SO ORDERED.

ARTURO D. BRION
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING Associate Justice	CONSUELO YNARES-SANTIAGO Associate Justice
ANTONIO T. CARPIO Associate Justice	RENATO C. CORONA Associate Justice
(On leave) CONCHITA CARPIO MORALES* Associate Justice	MINITA V. CHICO-NAZARIO Associate Justice
PRESBITERO J. VELASCO, JR. Associate Justice	ANTONIO EDUARDO B. NACHURA Associate Justice
TERESITA J. LEONARDO-DE CASTRO Associate Justice	DIOSDADO M. PERALTA Associate Justice

LUCAS P. BERSAMIN
Associate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Resolution were reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice

Footnotes

* On leave.

¹ G.R. No. 141959, September 29, 2000, 341 SCRA 533.

² G.R. No. 141524, September 15, 2005, 469 SCRA 633.

³ G.R. No. 149508, October 10, 2007, 535 SCRA 411.

⁴ G.R. No. 157186, October 19, 2007, 537 SCRA 116.

⁵ G.R. No. 142803, November 20, 2007, 537 SCRA 643.

⁶ RULES OF COURT, Rules 64, Section 2.

⁷ G.R. No. 136587, August 30, 1999, 313 SCRA 311

⁸ G.R. No. 131457, November 17, 1998, 298 SCRA 679, 690-691

⁹ See: Ponciano v. Laguna Lake Development Authority, G.R. No. 1745636, October 29, 2008 and Tagle v. Equitable PCI Bank, G.R. No. 172299, April 22, 2008, 552 SCRA 424

¹⁰ Prudential Guarantee and Assurance, Inc. v. Court of Appeals, G.R. No. 146559, August 13, 2004, 436 SCRA 478, 483.

¹¹ CONSTITUTION, Article IX-C, Section 3.

¹² Aguila v. Baldovizo, G.R. No. 163186, February 28, 2007, 517 SCRA 91.

¹³ G.R. No. 139607, October 28, 2002, 391 SCRA 277.

¹⁴ See: Lozano, et al. v. Nograles, G.R. Nos. 187883 and 187910, June 16, 2009, that, from another perspective, also speaks of the limits of liberality.