LOCGOV (PROF. RVG) - Digests (02.19.

13) A-2014 Garcia v Comelec Facts: Enrique Garcia was elected governor of the province of Bataan. Some mayors, vice-mayors and members of the Sangguniang Bayan of the twelve (12) municipalities of the province constituted themselves into a Preparatory Recall Assembly to initiate the recall election of Garcia. The mayor of Mariveles, Honorable Oscar, de los Reyes, and the mayor of Dinalupihan, the Honorable Lucila Payumo, were chosen as Presiding Officer and Secretary of the Assembly, respectively. Thereafter, the Vice-Mayor of Limay, the Honorable Ruben Roque, was recognized and he moved that a resolution be passed for the recall of the petitioner on the ground of "loss of confidence." The motion was "unanimously seconded."

Petitioners filed with the Comelec a petition to deny due course to the Resolution for failure to comply with the requirements under the LGC. The comelec dismissed the petition and scheduled the recall election. Petitioners filed a petition for certiorari and prohibition with the SC on the ground that section 70 of R.A. 7160 allowing recall through the initiative of the PRAC is unconstitutional because: (1) the people have the sole and exclusive right to decide whether or not to initiate proceedings, and (2) it violated the right of elected local public officials belonging to the political minority to equal protection of law. They also argued that the proceedings followed by the PRAC in passing Resolution No. I suffered from numerous defects, the most fatal of which was the deliberate failure to send notices of the meeting to sixty-five (65) members of the assembly.

Issue: WON all the members of the Preparatory Recall Assembly were notified of its meeting Held: Yes

Ratio: The failure to give notice to all members of the assembly, especially to the members known to be political allies of Garcia was admitted by both counsels of the respondents. They did not deny that only those inclined to agree with the resolution of recall were notified as a matter of political strategy and security. They justified these selective notices on the ground that the law does not specifically mandate the giving of notice. We reject this submission of the respondents. The due process clause of the Constitution requiring notice as an element of fairness is inviolable and should always be considered as part and parcel of every law in case of its silence. The need for notice to all the members of the assembly is also imperative for these members represent the different sectors of the electorate of Bataan. To the extent that they are not notified of the meeting of the assembly, to that extent is the sovereign voice of the people they represent nullified. The resolution to recall should articulate the majority will of the members of the assembly but the majority will can be genuinely determined only after all the members of the assembly have been given a fair opportunity to express the will of their constituents. Needless to stress, the requirement of notice is indispensable in determining the collective wisdom of the members of the Preparatory Recall Assembly. Its non-observance is fatal to the validity of the resolution to recall petitioner Garcia as Governor of the province of Bataan.

LOCGOV (PROF. RVG) - Digests (02.19.13) A-2014

Issue: WON the alternative mode of allowing a preparatory recall assembly to initiate the process of recall is unconstitutional Held: No

Ratio: A reading of the legislative history of these recall provisions will reveal that the idea of empowering a preparatory recall assembly to initiate the recall from office of local elective officials, originated from the House of Representatives and not the Senate. The legislative records reveal there were two (2) principal reasons why this alternative mode of initiating the recall process thru an assembly was adopted, viz: (a) to diminish the difficulty of initiating recall thru the direct action of the people; and (b) to cut down on its expenses. Our lawmakers took note of the undesirable fact that the mechanism initiating recall by direct action of the electorate was utilized only once in the City of Angeles, Pampanga, but even this lone attempt to recall the city mayor failed. Former Congressman Wilfredo Cainglet explained that this initiatory process by direct action of the people was too cumbersome, too expensive and almost impossible to implement. Consequently, our legislators added in the a second mode of initiating the recall of local officials thru a preparatory recall assembly. They brushed aside the argument that this second mode may cause instability in the local government units due to its imagined ease.

Petitioners cannot point to any specific provision of the Constitution that will sustain this submission. To be sure, there is nothing in the Constitution that will remotely suggest that the people have the "sole and exclusive right to decide on whether to initiate a recall proceeding." The Constitution did not provide for any mode, let alone a single mode, of initiating recall elections. Neither did it prohibit the adoption of multiple modes of initiating recall elections. The mandate given by section 3 of Article X of the Constitution is for Congress to "enact a local government code which shall provide for a more responsive and accountable local government structure through a system of decentralization with effective mechanisms of recall, initiative, and referendum . . ." By this constitutional mandate, Congress was clearly given the power to choose the effective mechanisms of recall as its discernment dictates. The power given was to select which among the means and methods of initiating recall elections are effective to carry out the judgment of the electorate. Congress was not straightjacketed to one particular mechanism of initiating recall elections. What the Constitution simply required is that the mechanisms of recall, whether one or many, to be chosen by Congress should be effective. Using its constitutionally granted discretion, Congress deemed it wise to enact an alternative mode of initiating recall elections to supplement the former mode of initiation by direct action of the people. Congress has made its choice as called for by the Constitution and it is not the prerogative of this Court to supplant this judgment. The choice may be erroneous but even then, the remedy against a bad law is to seek its amendment or repeal by the legislative. By the principle of separation of powers, it is the legislative that determines the necessity, adequacy, wisdom and expediency of any law.

LOCGOV (PROF. RVG) - Digests (02.19.13) A-2014 Petitioners also positive thesis that in passing Resolution 1, the Bataan Preparatory Recall Assembly did not only initiate the process of recall but had de facto recalled Garcia from office, a power reserved to the people alone. Again, the contention cannot command our concurrence. Petitioners have misconstrued the nature of the initiatory process of recall by the PRAC. They have embraced the view that initiation by the PRAC is not initiation by the people. This is a misimpression for initiation by the PRAC is also initiation by the people, albeit done indirectly through their representatives. It is not constitutionally impermissible for the people to act through their elected representatives. Nothing less than the paramount task of drafting our Constitution is delegated by the people to their representatives, elected either to act as a constitutional convention or as a congressional constituent assembly. The initiation of a recall process is a lesser act and there is no rhyme or reason why it cannot be entrusted to and exercised by the elected representatives of the people. More far out is petitioners' stance that a PRA resolution of recall is the recall itself. It cannot be seriously doubted that a PRA resolution of recall merely, starts the process. It is part of the process but is not the whole process. This ought to be self evident for a PRA resolution of recall that is not submitted to the COMELEC for validation will not recall its subject official. Likewise, a PRA resolution of recall that is rejected by the people in the election called for the purpose bears no effect whatsoever. The initiatory resolution merely sets the stage for the official concerned to appear before the tribunal of the people so he can justify why he should be allowed to continue in office. Before the people render their sovereign judgment, the official concerned remains in office but his right to continue in office is subject to question. This is clear in section 72 of the Local Government Code which states that "the recall of an elective local official shall be effective only upon the election and proclamation of a successor in the person of the candidate receiving the highest number of votes cast during the election on recall."

Issue: WON petitioners were denied equal protection of the laws Held: No

Ratio: Petitioners' argument does not really assail the law but its possible abuse by the members of the PRAC while exercising their right to initiate recall proceedings. More specifically, the fear is expressed that the members of the PRAC may inject political color in their decision as they may initiate recall proceedings only against their political opponents especially those belonging to the minority. A careful reading of the law, however, will ineluctably show that it does not give an asymmetrical treatment to locally elected officials belonging to the political minority. First to be considered is the politically neutral composition of the preparatory recall assembly, all mayors, vice-mayors and sangguniang members of the municipalities and component cities are made members of the preparatory recall assembly at the provincial level. Its membership is not apportioned to political parties. No significance is given to the political affiliation of its members. Secondly, the preparatory recall assembly, at the provincial level includes all the elected officials in the province concerned. Considering their number, the greater probability is that no one political party can control its majority. Thirdly, sec. 69 of the Code provides that the only ground to recall a locally elected public official is loss of confidence of the people. The members of the PRAC

LOCGOV (PROF. RVG) - Digests (02.19.13) A-2014 are in the PRAC not in representation of their political parties but as representatives of the people. By necessary implication, loss of confidence cannot be premised on mere differences in political party affiliation. Indeed, our Constitution encourages multi-party system for the existence of opposition parties is indispensable to the growth and nurture of democratic system. Clearly then, the law as crafted cannot be faulted for discriminating against local officials belonging to the minority. The fear that a preparatory recall assembly may be dominated by a political party and that it may use its power to initiate the recall of officials of opposite political persuasions, especially those belonging to the minority, is not a ground to strike down the law as unconstitutional. To be sure, this argument has long been in disuse for there can be no escape from the reality that all powers are susceptible of abuse. The mere possibility of abuse cannot, however, infirm per se the grant of power to an individual or entity. To deny power simply because it can be abused by the grantee is to render government powerless and no people need an impotent government. There is no democratic government that can operate on the basis of fear and distrust of its officials, especially those elected by the people themselves. On the contrary, all our laws assume that officials, whether appointed or elected, will act in good faith and will perform the duties of their office. Such presumption follows the solemn oath that they took after assumption of office, to faithfully execute all our laws.

There is only one ground for the recall of local government officials: loss of confidence. This means that the people may petition or the Preparatory Recall Assembly may resolve to recall any local elective officials without specifying any particular ground except loss of confidence. There is no need for them to bring up any charge of abuse or corruption against the local elective officials who are the subject of any recall petition.

Petitioners also contend that the resolution of the members of the preparatory recall assembly subverted the will of the electorate of the province of Bataan who elected Garcia with a majority of 12,500 votes. Again, the contention proceeds from the erroneous premise that the resolution of recall is the recall itself. It refuses to recognize the reality that the resolution of recall is a mere proposal to the electorate of Bataan to subject petitioner to a new test of faith. The proposal will still be passed upon by the sovereign electorate of Bataan. As this judgment has yet to be expressed, it is premature to conclude that the sovereign will of the electorate of Bataan has been subverted. The electorate of Bataan may or may not recall petitioner Garcia in an appropriate election. If the electorate re-elects Garcia, then the proposal to recall him made by the preparatory recall assembly is rejected. On the other hand, if the electorate does not re-elect Garcia, then he has lost the confidence of the people which he once enjoyed. The judgment will write finis to the political controversy. For more than judgments of courts of law, the judgment of the tribunal of the people is final for "sovereignty resides in the people and all government authority emanates from them."

In sum, the petition at bench appears to champion the sovereignty of the people, particularly their direct right to initiate and remove elective local officials thru recall

LOCGOV (PROF. RVG) - Digests (02.19.13) A-2014 elections. If the petition would succeed, the result will be a return to the previous system of recall elections which Congress found should be improved. The alternative mode of initiating recall proceedings thru a preparatory recall assembly is, however, an innovative attempt by Congress to remove impediments to the effective exercise by the people of their sovereign power to check the performance of their elected officials. The power to determine this mode was specifically given to Congress and is not proscribed by the Constitution.

Quaison, Concurring: The intent is clear that the 1987 Constitution leaves it to Congress to provide the recall mechanism without any pre-ordained restrictions. The broad powers of Congress in pescribing the procedure for recall include the determination as to the number of electors needed to initiate the recall, the method of voting of the electors, the time and place of the voting and whether the process includes the election of the successor of the recalled official. In the Local Government Code of 1991 (R.A. 7160), Congress adopted an alternative procedure for initiating the recall and made it as a mere stage of the recall process. Congress also deigned it wise to give the electorate a chance to participate in the exercise twice: first, in the initiation of the recall; and secondly, in the election of the person to occupy the office subject of the recall. This is in contrast with the first recall statute in the Philippines, the Festin Law (Com. Act No. 560) where the participation of the electorate were denied the opportunity to vote for the retention of the official subject of the recall. In a sense, the members of the PRA can be considered as constituting a segment of the electorate because they are all registered voters of the province. If they constitute less than one per cent of the voters in the province, that miniscule number goes to the policy, not the validity of the law and the remedy to correct such a flaw is left with t he legislature, not with the judiciary.

Vitug, Concurring: It may not be amiss, however, to caution against any idea of omnipotence in wielding the "power of recall" conferred to the "Preparatory Recall Assembly." Clearly implicit in any grant of power, like any other right, is an assumption of a correlative duty to exercise it responsibly. When it, therefore, becomes all too evident that there has been an abuse of that authority, appropriate judicial recourse to, and corrective relief by, this Court will not be denied.

Davide Jr, Dissenting: In both B.P. Blg. 337 and the Local Government Code of 1991, our Legislature fixed it at 25% of the total number of registered voters in the local government unit concerned during the election in which the local official sought to be recalled was elected. It follows then that said power cannot be shared with any other group of persons or officials. The reason why the initiation phase can and must be done only by the electorate is not difficult to understand. If it can also be done by another body, such as the PRA in this case, the exclusiveness or indivisibility of the power is necessarily impaired or negated. In such a case, the electorate is by passed and the resulting recall petition or resolution can by no means be an authentic, free, and voluntary act of the electorate, which characteristics

LOCGOV (PROF. RVG) - Digests (02.19.13) A-2014 are indicia of the exercise of a power. The power to initiate, being a component of the power or recall, necessarily includes the power not to initiate. The power to initiate becomes meaningless if another body is authorized to do it for the electorate. Worse, since the second component of the power of recall, i.e., the recall election, does not come into play without the recall petition, it follows that where the petition is not done through the initiative of the electorate because the latter chooses not to exercise its power to recall or finds no reason therefor, that election becomes, as to the electorate would in effect be compelled to participate in a political exercise it neither called for nor decided to have. Hence, the fullness of the power of recall precludes the delegation of the corresponding authority to initiate it to any entity other than the electorate, especially where the delegation unduly infringes upon and impairs such power as in this case. I might add that since Congress decided to retain the 25% requirement for the traditional method of initiating recall which is the method in full accord and perfect harmony with the true essence of recall the provision for an alternative method, i.e., recall resolution by a mere majority of the PRA, is subtly designed to negate, if not altogether defeat, the power of the electorate and to substitute the will of a very small group for the will of the electorate. PARAS VS COMELEC Petitioner is the incumbent Punong Barangay of Pula, Cabanatuan City who won during the last regular barangay election in 1994. A petition, signed by 29.30% of the registered voters of the barangay, for his recall was filed. COMELEC approved the petition but deferred the recall election in view of petitioners opposition. COMELEC set anew the recall election on December 16, 1995. To prevent the holding of the recall election, petitioner filed for injunction before RTC Cabanatuan. The trial court dismissed the petition and required petitioner and his counsel to explain why they should not be cited for contempt for misrepresenting that the barangay recall election was without COMELEC approval. In a resolution dated January 5, 1996, the COMELEC, for the third time, re-scheduled the recall election on January 13, 1996. Petitioner: the scheduled January 13, 1996 recall election is now barred as the Sangguniang Kabataan (SK) election was set on the first Monday of May 1996; that SK election is a regular local election; hence no recall election can be had for barely four months separate the SK election from the recall election. WON petitioners contention correct- NO SEC. 74. Limitations on Recall. (a) Any elective local official may be the subject of a recall election only once during his term of office for loss of confidence. (b) No recall shall take place within one (1) year from the date of the officials assumption to office or one (1) year immediately preceding a regular local election. It is a rule in statutory construction that every part of the statute must be interpreted with reference to the context. The evident intent of Section 74 is to subject an elective local official to recall election once during his term of office. Paragraph (b) construed together

LOCGOV (PROF. RVG) - Digests (02.19.13) A-2014 with paragraph (a) merely designates the period when such elective local official may be subject of a recall election, that is, during the second year of his term of office. Subscribing to petitioners interpretation of the phrase regular local election to include the SK election will unduly circumscribe the novel provision of the LGC on recall, a mode of removal of public officers by initiation of the people before the end of his term. And if the SK election which is set by R.A. No. 7808 to be held every three years from May 1996 were to be deemed within the purview of the phrase regular local election, then no recall election can be conducted rendering inutile the recall provision of the LGC. In the interpretation of a statute, the Court should start with the assumption that the legislature intended to enact an effective law. An interpretation should, if possible, be avoided under which a statute or provision being construed is defeated, or as otherwise expressed, nullified, destroyed, emasculated, repealed, explained away, or rendered insignificant, meaningless, inoperative or nugatory. It is likewise a basic precept in statutory construction that a statute should be interpreted in harmony with the Constitution. Thus, the interpretation should not be in conflict with the Constitutional mandate of Section 3 of Article X of the Constitution to enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum x x x. Petitioners too literal interpretation of the law leads to absurdity which we cannot countenance. The Court admonishes against a too-literal reading of the law as this is apt to constrict rather than fulfill its purpose and defeat the intention of its authors. The spirit, rather than the letter of a law determines its construction; hence, a statute, as in this case, must be read according to its spirit and intent. Finally, recall election is potentially disruptive of the normal working of the local government unit necessitating additional expenses, hence the prohibition against the conduct of recall election one year immediately preceding the regular local election. The proscription is due to the proximity of the next regular election for the office of the local elective official concerned. The electorate could choose the officials replacement in the said election who certainly has a longer tenure in office than a successor elected through a recall election. It would, therefore, be more in keeping with the intent of the recall provision of the Code to construe regular local election as one referring to an election where the office held by the local elective official sought to be recalled will be contested and be filled by the electorate. Nevertheless, recall is no longer possible because of the limitation stated under Section 74 (b) of the Code considering that the next regular election involving the barangay office concerned is barely seven (7) months away, the same having been scheduled on May 1997. Malonzo v Comelec Facts: Petitioner was duly elected as Mayor, winning over former Mayor Macario Asistio, Jr. Barely one year into his term, 1,057 Punong Barangays and Sangguniang Barangay members and SK chairmen, constituting a majority of the members of the Preparatory Recall Assembly of the City of Caloocan, met, and upon deliberation and election, voted for the approval of Preparatory Recall Assembly Resolution No. 01-96, expressing loss of confidence in Mayor Malonzo, and calling for the initiation of recall proceedings against him. The Comelec declared the recall proceedings to be in order. Mayor Malonzo filed a petition for certiorari with a prayer for TRO assailing the Comelecs resolution. The Petition, in the main, raises the issue of the validity of the institution and proceedings of the recall, putting to fore the propriety of the service of notices to the

LOCGOV (PROF. RVG) - Digests (02.19.13) A-2014 members of the Preparatory Recall Assembly, and the proceedings held, resulting in the issuance of the questioned Resolution. Issue: WON notices were properly sent to the members of the PRA Held: Yes Ratio: The Commission regards the sending of notice one thing, and the completion of service thereof another, for indeed, the requirement of notice can only be fully satisfied, if there was not only service, but also completion of service thereof. Thus, we were obliged to inquire more closely into the records and we found. Personal services were acknowledged by receipts signed, if not by the addressee himself, then, as indicated thereon, by his or her spouse, nearest relative or a person of sufficient discretion in the member 's residence or office. Service by registered mail was evinced by the return card duly signed by the addressee or by persons acting for him. There were instances when notices were served but were refused, this fact noted in the acknowledgment receipt by the server and his witnesses. The circumstances being thus, we hold that there was complete service of the notices as contemplated in Section 8, Rule 13 of the Rules of Court. That it was Alex David, President of the LIGA ng mga Barangay who sent the notices is of no moment. We had earlier determined that as member of the PRA, he can legally exercise the prerogatives attached to his membership in the Preparatory Recall Assembly, sending notices to the other members of its scheduled convening. It is evident from the foregoing and, therefore, the Commission so holds that the requirements of notice had been fully complied with. Needless to state, the issue of propriety of the notices sent to the PRA members is factual in nature, and the determination of the same is therefore a function of the COMELEC. In the absence of patent error the Court should not disturb the same. Issue: WON the proceedings held by the PRA are valid Held: Yes Ratio: Petitioner's insistence, that the initiation of the recall proceedings was infirm since it was convened by the Liga ng mga Barangays, is misplaced. Petitioner observes that "respondent Liga is an organization of all barangays. It is not an organization of barangay captains and kagawads. The barangays are represented in the Liga by the barangay captains as provided under Section 492 LGC. It also provides that the Kagawad may represent the barangay in the absence of the barangay chairman." The Liga ng mga Barangay is undoubtedly an entity distinct from the Preparatory Recall Assembly. It just so happens that the personalities representing the barangays in the Liga are the very members of the Preparatory Recall Assembly, the majority of whom met on July 7, 1996, and voted in favor of the resolution calling for the recall of Mayor Malonzo, after deliberation reported in the record, in accordance with the existing law. Thus, the Punong Barangays and Sangguniang Barangay members convened and voted as members of the Preparatory Recall Assembly of Caloocan, and not as members of the Liga ng mga Barangay. The recall proceedings, therefore, cannot be denied merit on this ground. Any doubt as to the propriety of the proceedings held during the recall assembly should be laid to rest. As the COMELEC pertinently observes: The Minutes of the session of the Preparatory Assembly indicated that there was a session held. Attendees constitute the majority of all the members of the Preparatory Assembly, as we shall later on establish. Rules of procedure, simple they may be were formulated. Deliberations were conducted on the main issue, which was that of petitioner's recall. The members were given the opportunity to articulate on their resolve about the matter. More importantly, their sentiments were expressed through their votes signified by their signatures and thumbmarks affixed to the Resolution. No proof was adduced by Petitioner to substantiate his claim that the signatures appearing thereon represented a cause other than that of adopting the resolution.

LOCGOV (PROF. RVG) - Digests (02.19.13) A-2014 The charges of graft and corruption, violence and irregularities, before and during the session of the preparatory recall assembly are largely uncorroborated, and cannot override the substantiated findings of the respondent COMELEC. Claudio v Comelec Facts: Jovito Claudio was the duly elected mayor of Pasay City in the May 11, 1998. On May 19, 1999, several barangay chairs formed an ad hoc committee for the purpose of convening the PRA. Richard Advincula was designated chair. The members of the PRA adopted Resolution No. 01, S-1999, initiating Claudios recall. The petition for recall was filed on the Office of the City Mayor. The comelec also posted the petition on the bulletin boards of certain public places. Oppositions to the petition were filed by Jovito Claudio, Rev. Ronald Langub, and Roberto L. Angeles, alleging procedural and substantive defects in the petition, to wit: (1) the signatures affixed to the resolution were actually meant to show attendance at the PRA meeting; (2) most of the signatories were only representatives of the parties concerned who were sent there merely to observe the proceedings; (3) the convening of the PRA took place within the one-year prohibited period; (4) the election case, filed by Wenceslao Trinidad in this Court, seeking the annulment of the proclamation of petitioner Claudio as mayor of Pasay City, should first be decided before recall proceedings against petitioner could be filed; and (5) the recall resolution failed to obtain the majority of all the members of the PRA, considering that 10 were actually double entries, were not duly accredited members of the barangays, 40 sangguniang kabataan officials had withdrawn their support, and 60 barangay chairs executed affidavits of retraction. The COMELEC granted the petition and dismissed the opposition. It ruled that the 1,073 members who attended the May 29, 1999 meeting were more than necessary to constitute the PRA, considering that its records showed the total membership of the PRA was 1,790, while the statistics of the Department of Interior and Local Government (DILG) showed that the total membership of the PRA was 1,876. In either case, since only a majority is required to constitute the PRA, clearly, a majority had been obtained in support of the recall resolution. Hence, this petition. Issue: WON Word "Recall" in Paragraph (b) of 74 of the Local Government Code Includes the Convening of the Preparatory Recall Assembly and the Filing by it of a Recall Resolution Held: Yes Ratio: We can agree that recall is a process which begins with the convening of the preparatory, recall assembly or the gathering of the signatures at least 25% of the registered voters of a local government unit, and then proceeds to the filing of a recall resolution or petition with the COMELEC, the verification of such resolution or petition, the fixing of the date of the recall election, and the holding of the election on the scheduled date.[5) However, as used in paragraph (b) of 74, "recall" refers to the election itself by means of which voters decide whether they should retain their local official or elect his replacement. Several reasons can be cited in support of this conclusion. First, 74 deals with restrictions on the power of recall. It is in fact entitled "Limitations on Recall." On the other hand, 69 provides that "the power of recall ...shall be exercised by the registered voters of a local government unit to which the local elective official belongs." Since the power vested on the electorate is not the power to initiate recall proceedings[6) but the power to elect an official into office, the limitations in 74 cannot be deemed to apply to the entire recall proceedings. In other words, the term "recall" in paragraph (b) refers only to the recall election, excluding the convening of the PRA and the filing of a petition for recall with the COMELEC, or the gathering of the signatures of at least 25 % of the voters for a petition for recall. Thus, there may be several PRAs held or petitions for recall filed with the COMELEC - there is no legal limit on the number of times such processes may be resorted to. These are merely preliminary steps for the purpose of initiating a recall. The limitations in 74 apply only to

LOCGOV (PROF. RVG) - Digests (02.19.13) A-2014 the exercise of the power of recall which is vested in the registered voters. It is this - and not merely, the preliminary steps required to be taken to initiate a recall - which paragraph (b) of 74 seeks to limit by providing that no recall shall take place within one year from the date of assumption of office of an elective local official. The second reason why the term "recall" in paragraph (b) refers to recall election is to be found in the purpose of the limitation itself. There are two limitations in paragraph (b) on the holding of recalls: (1) that no recall shall take place within one year from the date of assumption of office of the official concerned, and (2) that no recall shall take place within one year immediately preceding a regular local election. The purpose of the first limitation is to provide a reasonable basis for judging the performance of an "The only logical reason which we can ascribe for requiring the electors to wait one year before petitioning for a recall election is to prevent premature action on their part in voting to remove a newly elected official before having had sufficient time to evaluate the soundness of his policies and decisions." The one-year limitation was reckoned as of the filing of a petition for recall because the Municipal Code involved in that case expressly provided that "no removal petition shall be filed against any officer or until he has actually held office for at least twelve months." But however the period of prohibition is determined, the principle announced is that the purpose of the limitation is to provide a reasonable basis for evaluating the performance of an elective local official. Hence, in this case, as long as the election is held outside the one-year period, the preliminary proceedings to initiate a recall can be held even before the end of the first year in office of a local official. Third, to construe the term "recall" in paragraph (b) as including the convening of the PRA for the purpose of discussing the performance in office of elective local officials would be to unduly restrict the constitutional right of speech and of assembly of its members. The people cannot just be asked on the day of the election to decide on the performance of their officials. The crystallization and formation of an informed public opinion takes time. To hold, therefore, that the first limitation in paragraph (b) includes the holding of assemblies for the exchange of ideas and opinions among citizens is to unduly curtail one of the most cherished rights in a free society. Indeed, it is wrong to assume that such assemblies will always eventuate in a recall election. To the contrary, they may result in the expression of confidence in the incumbent. To sum up, the term "recall" in paragraph (b) refers to the recall election and not to the preliminary proceedings to initiate recall Because 74 speaks of limitations on "recall" which, according to 69, is a power which shall be exercised by the registered voters of a local government unit. Since the voters do not exercise such right except in an election, it is clear that the initiation of recall proceedings is not prohibited within the one-year period provided in paragraph (b); Because the purpose of the first limitation in paragraph (b) is to provide voters a sufficient basis for judging an elective local official, and final judging is not done until the day of the election; and Because to construe the limitation in paragraph (b) as including the initiation of recall proceedings would unduly curtail freedom of speech and of assembly guaranteed in the Constitution. As the recall election in Pasay City is set on April 15, 2000, more than one year after petitioner assumed office as mayor of that city, we hold that there is no bar to its holding on that date. Issue: WON the Phrase "Regular Local Election" in the Same Paragraph (b) of 74 of the LGC includes the Election Period for that Regular Election or Simply the Date of Such Election Ratio: The law is unambiguous in providing that "[n) o recall shall take place within . . . one (1) year immediately preceding a regular local election." Had Congress intended this limitation to refer to the campaign period, which period is defined in the Omnibus Election Code, it could have expressly said so.

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LOCGOV (PROF. RVG) - Digests (02.19.13) A-2014 Moreover, petitioner's interpretation would severely limit the period during which a recall election may be held. Actually, because no recall election may be held until one year after the assumption of office of an elective local official, presumably on June 30 following his election, the free period is only the period from July 1 of the following year to about the middle of May of the succeeding year. This is a period of only nine months and 15 days, more or less. To construe the second limitation in paragraph (b) as including the campaign period would reduce this period to eight months. Such an interpretation must be rejected, because it would devitalize the right of recall which is designed to make local government units" more responsive and accountable." Indeed, there is a distinction between election period and campaign period. Under the Omnibus Election Code, unless otherwise fixed by the COMELEC, the election period commences ninety (90) days before the day of the election and ends thirty (30) days thereafter. Thus, to follow petitioner's interpretation that the second limitation in paragraph (b) includes the "election period" would emasculate even more a vital right of the people. To recapitulate the discussion in parts 1 and 2, 74 imposes limitations on the holding of recall elections. First, paragraph (a) prohibits the holding of such election more than once during the term of office of an elective local official. Second, paragraph (b) prohibits the holding of such election within one year from the date the official assumed office. And third, paragraph (b) prohibits the holding of a recall election within one year immediately preceding a regular local election. As succinctly stated in Paras v. COMELEC, "[p) aragraph (b) construed together with paragraph (a) merely designates the period when such elective local official may be subject to recall election, that is, during the second year of office." Issue: WON the Recall RESOLUTION was Signed by a Majority of the PRA and Duly Verified Held: Yes Ratio: Petitioner alleges other grounds for seeking the annulment of the resolution of the COMELEC ordering the holding of a recall election. He contends that a majority of the signatures of the members of the PRA was not obtained because 74 members did not really sign the recall resolution. According to petitioner, the 74 merely signed their names on pages 94-104 of the resolution to signify their attendance and not their concurrence. Petitioner claims that this is shown by the word "Attendance" written by hand at the top of the page on which the signatures of the 74 begin. This contention has no basis. To be sure, this claim is being raised for the first time in this case. It was not raised before the COMELEC. Although the word "Attendance" appears at the top of the page, it is apparent that it was written by mistake because it was crossed out by two parallel lines drawn across it. Apparently, it was mistaken for the attendance sheet which is a separate document. It is absurd to believe that the 74 members of the PRA who signed the recall resolution signified their attendance at the meeting twice. It is more probable to believe that they signed pages 94-104 to signify their concurrence in the recall resolution of which the pages in question are part. The other point raised by petitioner is that the recall petition filed in the COMELEC was not duly verified, because Atty. Nelson Ng, who notarized it, is not commissioned as notary public for Pasay City but for Makati City. As in the case of the first claim, this issue was not raised before the COMELEC itself. It cannot, therefore, be raised now. Javellana DILG Facts: Attorney Erwin B. Javellana was an elected City Council or of Bago City, Negros Occidental. City Engineer Ernesto C. Divinagracia filed Administrative Case against Javellana.Divinagracia's complaint alleged that Javellana has continuously engaged in the practice of law without securing authority for that purpose from the Regional Director, Department of Local Government, as required by DLG Memorandum Circular No. 80-38 in relation to DLG Memorandum Circular No. 74-58 of the same department: that on July 8, 1989, Javellana, as counsel for Antonio Javiero and Rolando Catapang, filed a case against

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LOCGOV (PROF. RVG) - Digests (02.19.13) A-2014 City Engineer Ernesto C. Divinagracia of Bago City for "Illegal Dismissal and Reinstatement with Damages" putting him in public ridicule: that Javellana also appeared as counsel in several criminal and civil cases in the city, without prior authority of the DLG Regional Director, in violation of DLG Memorandum Circular No. 80-38 Javellana filed a Motion to Dismiss the administrative case against him on the ground mainly that DLG Memorandum Circular Nos. 80-38 and 90-81 are unconstitutional because the Supreme Court has the sole and exclusive authority to regulate the practice of law. The motion to dismiss was denied. A few months later, the LGC was enacted which provides: "SEC. 90. Practice of Profession. "(b) Sanggunian members may practice their professions, engage in any occupation, or teach in schools except during session hours: Provided, That sanggunian members who are also members of the Bar shall not: "(1) Appear as counsel before any court in any civil case wherein a local government unit or any office, agency, or instrumentality of the government is the adverse party; "(2) Appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office: "(3) Collect any fee for their appearance in administrative proceedings involving the local government unit of which he is an official; and "(4) Use property and personnel of the Government except when the sanggunian member concerned is defending the interest of the Government. Javellana thereupon filed this petition for certiorari praying that DLG Memorandum Circulars Nos. 80-38 and 90-81 and Section 90 of RA 7160 be declared unconstitutional and null and Issue: WON the Memorandum Circulars and Section 90 of RA 7160 are unconstitutional Held: No Ratio: In the first place, complaints against public officers and employees relating or incidental to the performance of their duties are necessarily impressed with public interest for by express constitutional mandate, a public office is a public trust. The complaint for illegal dismissal filed by Javiero and Catapang against City Engineer Divinagracia is in effect a complaint against the City Government of Bago City, their real employer, of which petitioner Javellana is a councilman. Hence, judgment against City Engineer Divinagracia, would actually be a judgment against the City Government. By serving as counsel for the complaining employees and assisting them to prosecute their claims against City Engineer Divinagracia, the petitioner violated Memorandum Circular No. 74-58 (in relation to Section 7[b-2] of RA 6713) prohibiting a government official from engaging in the private practice of his profession, if such practice would represent interests adverse to the government. Petitioner's contention that Section 90 of the Local Government Code of 1991 and DLG Memorandum Circular No. 90-81 violate Article VIII. Section 5 of the Constitution is completely off tangent. Neither the statute nor the circular trenches upon the Supreme Court's power and authority to prescribe rules on the practice of law. The Local Government Code and DLG Memorandum Circular No. 90-81 simply prescribe rules of conduct for public officials to avoid conflicts of interest between the discharge of their public duties and the private practice of their profession, in those instances where the law allows it. Section 90 of the Local Government Code does not discriminate against lawyers and doctors. It applies to all provincial and municipal officials in the professions or engaged in any occupation. Section 90 explicitly provides that sanggunian members "may practice their professions, engage in any occupation, or teach in schools except during session hours." If there are some prohibitions that apply particularly to lawyers, it is because of all the professions, the practice of law is more likely than others to relate to, or affect, the area of public service. PIMENTEL VS AGUIRRE 2000, Panganiban

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LOCGOV (PROF. RVG) - Digests (02.19.13) A-2014 Facts: 1. 1997 Pres. FVR issued AO 372 to reduce the total expenditures in 1998 by 25% a. Sec. 1 All government departments and agencies, including state universities and colleges, government-owned and controlled corporations and local governments units will identify and implement measures in FY 1998 that will reduce total expenditures for the year by at least 25% of authorized regular appropriations b. Sec. 4 Pending the assessment and evaluation by the Development Budget Coordinating Committee of the emerging fiscal situation, the amount equivalent to 10% of the internal revenue allotment (IRA) to local government units shall be withheld. 2. 1998 Pres. Estrada issues AO43 amending Sec.4 decreasing the withholding of IRA to 5%. 3. Pimentel FILED: Certiorari and Prohibition v. Aguirre (in his capacity as executive secretary). a. He seeks to enjoin the implementation of the two provisions. 4. Roberto Pagdanganan INTERVENTION provincial governor of Bulacan, national president of the League of Provinces of the Philippines and chairman of the League of Leagues of Local Governments. SC noted said motion. 5. Pet. Stand: In issuing assailed order the president exercised the power of control over LGUs in contravention of Sec. 286 LGU Code (automatic release of IRA) and Sec 6 Art X of the Constitution (just share in taxes automatically released). Resp. Stand: The AOs were to alleviate economic difficulty (a cash measure); merely supervisory/advisory. Withholding of the IRA merely temporary pending assessment. Issue: W/N the AOs were valid? Held: Sec 1, mere advisory to decrease expenditures is valid. Sec4, the withholding of IRA in contravention to LocGov code and Constitution is invalid/unconstitutional. 1. Sec 4 Art X Consti provides that the Pres. Only has the power of supervision over LGUs. The president has the power of control only over the exec. department (recall the one person / alter egos in exec dept doctrine). - Drilon v. Lim Control v. supervision. Officers in control lay down the rules in the performance or accomplishment of an act. If these rules are not followed, they may, in their discretion, order the act undone or redone by their subordinates or even decide to do it themselves. On the other hand, supervision does not cover such authority. Supervising officials merely see to it that the rules are followed, but they themselves do not lay down such rules, nor do they have the discretion to modify or replace them. If the rules are not observed, they may order the work done or redone, but only to conform to such rules. They may not prescribe their own manner of execution of the act. They have no discretion on this matter except to see to it that the rules are followed. - LGU officials power stems from the electorates sovereign power, and not the president. Hence the Pres. Only has supervision over the LGU officials. So long as their acts are within the sphere of their legit powers, the Pres. may not withhold or alter any authority or power given them by the Constitution and the law 2. State policy of ensuring local autonomy and the decentralization of administration - Ganzon v. CA local autonomy - a more responsive and accountable local government structure instituted through a system of decentralization. (decentralization of admin) - Decentralization simply means the devolution of national administration, not power, to local governments. 3. Sec. 1 valid. Merely directory.

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LOCGOV (PROF. RVG) - Digests (02.19.13) A-2014 GN: LGUs have Local Fiscal autonomy the power to create their own sources of revenue in addition to their equitable share in the national taxes released by the national government, as well as the power to allocate their resources in accordance with their own priorities. It does not however rule out any manner of national govt intervention by supervision. EXC: Hence Sec. 284 of the LocGov code provides an exception. REQs (1) an unmanaged public sector deficit of the national government (2) consultations with the presiding officers of the Senate and the House of Representatives and the presidents of the various local leagues; and (3) the corresponding recommendation of the secretaries of the Department of Finance, Interior and Local Government, and Budget and Management. Furthermore, any adjustment in the allotment shall in no case be less than thirty percent (30%) of the collection of national internal revenue taxes of the third fiscal year preceding the current one. - Pet. these reqs have not been complied with. Resp. no need to comply with reqs, inapplicable since Sec 1 is merely directory, not being mandatory it is not an exercise of control by the president. - SC - The language used, while authoritative, does not amount to a command. Rather, the provision is merely an advisory to prevail upon local executives to recognize the need for fiscal restraint in a period of economic difficulty. Hence no need to comply with reqs. 4. Sec. 4 invalid. Unconsti. - A basic feature of local fiscal autonomy is the automatic release of the shares of LGUs in the national internal revenue. Consti Sec 6. Art X and - Loc Gov Sec. 286 provides that it shall not be subject to any lien or holdback that may be imposed by the national government for whatever purpose." The term "shall" is a word of command that must be given a compulsory meaning. The provision is, therefore, imperative. - Section 4 of AO 372, however, orders the withholding pending assessment. Such withholding clearly contravenes the Constitution and the law. Although temporary, it is equivalent to a holdback which means "something held back or withheld, often temporarily." Hence, the "temporary" nature of the retention by the national government does not matter. Any retention is prohibited. 5. Refutation of Justice Kapunan's Dissent a. Kapunan: the petition is premature. Incorrect because Tanada v. Angara - By the mere enactment of the questioned law or the approval of the challenged action, the dispute is said to have ripened into a judicial controversy even without any other overt act. Besides this issue on prematurity has not been raised by the parties. b. Kapunan: Sec4 is subsumed into the power of the president as chief fiscal officer and points out instances where he may intervene in local matters. Incorrect because these instances as referred to in the Dissent have specifically been authorized by law, vs. here the AO is clearly in contravention to law. c. Further striking down Sec4 of the AO, doesnt mean that LocGov 284 cannot be used anymore. Kapunan glances over the fact that the proviso requires interaction between the national government and the LGUs at the planning level, in this case the problem is that no such interaction or consultation was ever held prior to the issuance of AO 372. That is why the provincial governor Pagdanganan intervened. d. Kapunan argues Sec4 may be valid under LocGov 287 a cursory reading reveals that it is totally inapplicable to the issue at bar. It directs LGUs to appropriate in their annual budgets percent of their respective IRAs for development projects. It speaks of no positive power granted the President to priorly withhold any amount. Not at all. -

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LOCGOV (PROF. RVG) - Digests (02.19.13) A-2014 WHEREFORE Certiorari and Prohibition GRANTED. Respondents and their successors are hereby permanently PROHIBITED from implementing the AOs, insofar as local government units are concerned. NPC VS CBAA 2009, Brion Facts: 1993, First Private Power Corporation (FPPC) entered into a BOT agreement with NAPOCOR for the construction of the 215 Megawatt Bauang Diesel Power Plant in Payocpoc, Bauang, La Union. The BOT Agreement provided for the creation of the Bauang Private Power Corporation (BPPC) that will own, manage and operate the power plant/station, and assume and perform FPPCs obligations under the BOT agreement. For a fee, 3 BPPC will convert NAPOCORs supplied diesel fuel into electricity and deliver the product to NAPOCOR. BOT Agreement also provides that NAPOCOR shall be responsible for the payment of all real estate taxes and assessments, rates, and other charges in respect of the Site and the buildings and improvements thereon. CONTRACTOR shall, directly or indirectly, own the Power Station and all the fixtures, fittings, machinery, and equipment on the Site or used in connection with the Power Station which have been supplied by it or at its cost and it shall operate and manage the Power Station for the purpose of converting fuel of NAPOCOR into electricity. Municipality of Bauang questioned before the Regional Director of the Bureau of Local Government Finance (BLGF) the declared tax exemption; later, the issue was elevated to the Deputy Executive Director and Officer-in-Charge of the BLGF, Department of Finance, who ruled that BPPCs machineries and equipments are subject to real property tax and directed the Assessors Office to take appropriate action. Municipal Assessor of Bauang then issued a Notice of Assessment and Tax Bill to BPPC assessing/taxing the machineries and equipments NAPOCOR filed a petition with the LBAA. The petition asked that, retroactive to 1995, the machineries covered by the tax declarations be exempt from real property tax under Section 234(c) of Republic Act No. 7160 Section 234. Exemptions from Real Property Tax. The following are exempted from the payment of real property tax: (c) All machineries and equipment that are actually, directly and exclusively used by local water districts and government-owned or controlled corporations engaged in the supply and distribution of water and/or generation and transmission of electric power; LBAA: Denied the petition. In this case, NAPOCOR does not own and does not even actually and directly use the machineries. It is the BPPC, a non-government entity, which owns, maintains, and operates the machineries and equipment; using these, it generates electricity and then sells this to NAPOCOR. Additionally, it ruled that the liability for the payment of the real estate taxes is determined by law and not by the agreement of the parties; hence, the provision in the BOT Agreement whereby NAPOCOR assumed responsibility for the payment of all real estate taxes and assessments, rates, and other charges, in relation with the site, buildings, and improvements in the BOT project, is an arrangement between the parties that cannot be the basis in identifying who is liable to the government for the real estate tax. CBAA subsequently dismissed the appeal based on its finding that the BPPC, and not NAPOCOR, is the actual, direct and exclusive user of the equipment and machineries. It has been established that BPPC manufactures or generates the power which is sold to NAPOCOR and NAPOCOR distributes said power to the consumers. In other words, the relationship between BPPC and NAPOCOR is one of manufacturer or seller and exclusive distributor or

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LOCGOV (PROF. RVG) - Digests (02.19.13) A-2014 buyer. Indeed BPPC does not use said machineries and equipment pretendedly or feignedly but truly and factually hence, "actually." BPPC uses them without anything intervening hence, directly. BPPC uses the same machineries and equipment apart from all others hence, exclusively. CTA: It found that BPPC never filed an appeal to contest or question the assessment; instead, it was NAPOCOR that filed the purported appeal a petition for exemption of the machineries and equipment. The CTA, however, said that NAPOCOR is not the proper party, and the purported appeal did not substantially comply with the requisites of the law. According to the CTA, NAPOCOR is not the registered owner of the machineries and equipment. These are registered in BPPCs name as further confirmed by Section 2.08 of the BOT Agreement. It noted that under the BOT Agreement, NAPOCOR shall have a right over the machineries and equipments only after their transfer at the end of the 15-year cooperation period. "By the nature of the agreement and work of BPPC, the [machineries] are actually, directly, and exclusively used by it in the conversion of bunker fuel to electricity for [NAPOCOR] for a fee," the CTA said. Issue: WON NAPOCOR is exempt Held: No Ratio: Section 234(c) of the LGC is clear and not at all ambiguous in its terms. Exempt from real property taxation are: (a) all machineries and equipment; (b) [that are] actually, directly, and exclusively used by; (c) [local water districts and] government-owned or controlled corporations engaged in the [supply and distribution of water and/or] generation and transmission of electric power. We note, in the first place, that the present case is not the first occasion where NAPOCOR claimed real property tax exemption for a contract partner under Sec. 234 (c) of the LGC. In FELS Energy, Inc. v. The Province of Batangas. We concluded in that case that we could not recognize the tax exemption claimed, since NAPOCOR was not the actual, direct and exclusive user of the barge as required by Sec. 234 (c). The mere undertaking of petitioner NPC under Section 10.1 of the Agreement, that it shall be responsible for the payment of all real estate taxes and assessments, does not justify the exemption. The privilege granted to petitioner NPC cannot be extended to FELS. The covenant is between FELS and NPC and does not bind a third person not privy thereto, in this case, the Province of Batangas. Rather than ownership, NAPOCORs use of the machineries and equipment is the critical issue, since its claim under Sec. 234(c) of the LGC is premised on actual, direct and exclusive use. To support this claim, NAPOCOR characterizes the BOT Agreement as a mere financing agreement where BPPC is the financier, while it (NAPOCOR) is the actual user of the properties. As in the fact of ownership, NAPOCORs assertion is belied by the documented arrangements between the contracting parties, viewed particularly from the prism of the BOT law. Build-operate-and-transfer A contractual arrangement whereby the project proponent undertakes the construction, including financing, of a given infrastructure facility, and the operation and maintenance thereof. The project proponent operates the facility over a fixed term during which it is allowed to charge facility users appropriate tolls, fees, rentals, and charges not exceeding those proposed in its bid or as negotiated and incorporated in the contract to enable the project proponent to recover its investment, and operating and maintenance expenses in the project. The project proponent transfers the facility to the government agency or local government unit concerned at the end of the fixed term which shall not exceed fifty (50) years.

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LOCGOV (PROF. RVG) - Digests (02.19.13) A-2014 That some kind of "financing" arrangement is contemplated in the sense that the private sector proponent shall initially shoulder the heavy cost of constructing the projects buildings and structures and of purchasing the needed machineries and equipment is undeniable. The arrangement, however, goes beyond the simple provision of funds, since the private sector proponent not only constructs and buys the necessary assets to put up the project, but operates and manages it as well during an agreed period that would allow it to recover its basic costs and earn profits. In other words, the private sector proponent goes into business for itself, assuming risks and incurring costs for its account. In this sense, a BOT arrangement is sui generis and is different from the usual financing arrangements where funds are advanced to a borrower who uses the funds to establish a project that it owns, subject only to a collateral security arrangement to guard against the nonpayment of the loan If the BOT Agreement under consideration departs at all from the concept of a BOT project as defined by law, it is only in the way BPPCs cost recovery is achieved; instead of selling to facility users or to the general public at large, the generated electricity is purchased by NAPOCOR which then resells it to power distribution companies. This deviation, however, is dictated, more than anything else, by the structure and usages of the power industry and does not change the BOT nature of the transaction between the parties. For these same reasons, we reject NAPOCORs argument that the machineries and equipment must be subjected to a lower assessment level. NAPOCOR cites as support Section 216 of the LGC. Since the basis for the application of the claimed differential treatment or assessment level is the same as the claimed tax exemption, the lower tribunals correctly found that there is no basis to apply the lower assessment level of 10%. AQUINO VS AURE 2008, Chico-Nazario FACTS: Aure and Aure Lending filed a Complaint for ejectment against Aquino before MTC, alleging that they acquired the property from Sps Aquino by virtue of a Deed of Sale. Aure claimed that after the spouses Aquino received substantial consideration for the sale of the subject property, they refused to vacate the same. In her Answer, Aquino countered the complaint lacks COA for Aure and Aure Lending do not have any legal right over the subject property. Aquino admitted there was a sale but it was governed by the MOA signed by Aure, which stated that Aure shall secure a loan from a bank or financial institution in his own name using the subject property as collateral and turn over the proceeds thereof to the spouses Aquino. However, even after Aure successfully secured a loan, the spouses Aquino did not receive the proceeds thereon or benefited therefrom MeTC: dismissed: non-compliance with buy conciliation process; Aure and Aquino are residents of the same bgy but no showing of any attempt to settle the case amicably at the buy level. RTC: affirmed: buy conciliation is a conditio sine qua non for the filing of ejectment complaint involving residents of the same bgy. CA: reversed and remanded case to MeTC for further proceedings. Failure of Aure to subject the matter to barangay conciliation is not a jurisdictional flaw and it will not affect the sufficiency of Aures Complaint since Aquino failed to seasonably raise such issue in her Answer.

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LOCGOV (PROF. RVG) - Digests (02.19.13) A-2014 ISSUE: WON non-recourse to the barangay conciliation process is a jurisdictional flaw that warrants the dismissal of the ejectment suit HELD: No. Although Aquinos defense of non compliance with PD 1508 is meritorious, procedurally, such defense is no longer available for failure to plead the same in the Answer as required by the omnibus motion rule. RATIO: The primordial objective of PD 1508 is to reduce the number of court litigations and prevent the deterioration of the quality of justice which has been brought by the indiscriminate filing of cases in the courts. To ensure this objective, PD 1508 S6 requires the parties to undergo a conciliation process before the Lupon Chairman or the Pangkat ng Tagapagkasundo as a precondition to filing a complaint in court subject to certain exceptions which are inapplicable to this case. The said section has been declared compulsory in nature. This is now incorporated in LGC 412. The precise technical effect of failure to comply with the requirement of Section 412 of the Local Government Code on barangay conciliation (previously contained in Section 5 of Presidential Decree No. 1508) is much the same effect produced by non exhaustion of administrative remedies the complaint becomes afflicted with the vice of prematurity; and the controversy there alleged is not ripe for judicial determination. The complaint becomes vulnerable to a motion to dismiss. Nevertheless, conciliation process is not a jurisdictional requirement so that non compliance therewith cannot affect the jurisdiction which the court has otherwise acquired over the subject matter or over the person of the defendant 1) Aquino already voluntarily submitted herself to the jurisdiction of the MeTC so she can no longer be allowed to attack its jurisdiction. (i.e. by filing an Answer & failing to object to such exercise of jurisdiction in her Answer) 2) The failure of a defendant [Aquino] in an ejectment suit to specifically allege the fact that there was no compliance with the barangay conciliation procedure constitutes a waiver of that defense. (Rules of CivPro R9.1 and R8.15) The fact that Aquino raised such objection during the pretrial and in her Position Paper is of no moment, for the issue of nonrecourse to barangay mediation proceedings should be impleaded in her Answer. The spirit that surrounds the foregoing statutory norm is to require the party filing a pleading or motion to raise all available exceptions for relief during the single opportunity so that single or multiple objections may be avoided. Neither could the MeTC dismiss the case motu proprio. The 1997 Rules of Civil Procedure provide only three instances when the court may motu proprio dismiss the claim, and that is when the pleadings or evidence on the record show that (1) the court has no jurisdiction over the subject matter; (2) there is another cause of action pending between the same parties for the same cause; or (3) where the action is barred by a prior judgment or by a statute of limitations. Thus, it is clear that a court may not motu proprio dismiss a case on the ground of failure to comply with the requirement for barangay conciliation, this ground not being among those mentioned for the dismissal by the trial court of a case on its own initiative. Morata v Go Facts On August 5, 1982, Victor Go and Flora D. Go filed a complaint against petitioners Julius Morata and Ma. Luisa Morata for recovery of a sum of money plus damages amounting to P49,400.00. On the basis of the allegation in the complaint that the parties-litigants are all residents of Cebu City, petitioners filed a motion to dismiss, citing as grounds therefor, the

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LOCGOV (PROF. RVG) - Digests (02.19.13) A-2014 failure of the complaint to allege prior availment by the plaintiffs of the barangay conciliation process required by P.D. 1508, as well as the absence of a certification by the Lupon or Pangkat Secretary that no conciliation or settlement had been reached by the parties. The judge denied the motion to dismiss, ruling that the provision of Sec 6 of the law applies only to cases cognizable by the inferior courts mentioned in Secs 11 and 12 of the law. Issue: WON the complaint should be dismissed for failure to comply with PD 1508 Held: Yes Ratio: Section 6 of P.D. 1508 reads as follows: SECTION 6. Conciliation pre-condition to filing of complaint. No complaint, petition, action for proceeding involving any matter within the authority of the Lupon as provided in Section 2 hereof shall be filed or instituted in court or any other government office for adjudication unless there has been a confrontation of the parties before the Lupon Chairman or the Pangkat and no conciliation or settlement has been reached as certified by the Lupon Secretary or the Pangkat Secretary attested by the Lupon or Pangkat Chairman, or unless the settlement has been repudiated. However, the parties may go directly to court in the following cases: [1] Where the accused is under detention; [2] Where a person has otherwise been deprived of personal liberty calling for habeas corpus proceedings; [3] Actions coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property and support pendente lite; and [4] Where the action may otherwise be barred by the Statute of Limitations SECTION 2. Subject matters for amicable settlement. The Lupon of each barangay shall have authority to bring together the parties actually residing in the same city or municipality for amicable settlement of all disputes except: [1] Where one party is the government ,or any subdivision or instrumentality thereof; [2] Where one party is a public officer or employee, and the dispute relates to the performance of his official functions; [3] Offenses punishable by imprisonment exceeding 30 days, or a fine exceeding P200.00; [4] Offenses where there is no private offended party; [5] Such other classes of disputes which the Prime Minister may in the interest of justice determine upon recommendation of the Minister of Justice and the Minister of Local Government. Thus, except in the instances enumerated in sections 2 and 6 of the law, the Lupon has the authority to settle amicably all types of disputes involving parties who actually reside in the same city or municipality. The law, as written, makes no distinction whatsoever with respect to the classes of civil disputes that should be compromised at the barangay level, in contradistinction to the limitation imposed upon the Lupon by paragraph (3), section 2 thereof as regards its authority over criminal cases. In fact, in defining the Lupon's authority, Section 2 of said law employed the universal and comprehensive term "all", to which usage We should neither add nor subtract in consonance with the rudimentary precept in statutory construction that "where the law does not distinguish, We should not distinguish. 2 By compelling the disputants to settle their differences through the intervention of the barangay leader and other respected members of the barangay, the animosity generated by protracted court litigations between members of the same political unit, a disruptive factor toward unity and cooperation, is avoided. It must be borne in mind that the conciliation process at the barangay level is likewise designed to discourage indiscriminate filing of cases in court in order to decongest its clogged dockets and, in the process, enhance the quality of justice dispensed by it. Thus, to say that the authority of the Lupon is limited to cases exclusively cognizable by the inferior courts is to lose sight of this objective. Worse, it would make the law a self-defeating one. For what would stop a party, say in an action for a

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LOCGOV (PROF. RVG) - Digests (02.19.13) A-2014 sum of money or damages, as in the instant case, from bloating up his claim in order to place his case beyond the jurisdiction of the inferior court and thereby avoid the mandatory requirement of P.D. 1508? And why, indeed, should the law seek to ease the congestion of dockets only in inferior courts and not in the regional trial courts where the log-jam of cases is much more serious? Indeed, the lawmakers could not have intended such half-measure and self-defeating legislation. There can be no question that when the law conferred upon the Lupon "the authority to bring together the parties actually residing in the same city or municipality for amicable settlement of all disputes, ... ," its obvious intendment was to grant to the Lupon as broad and comprehensive an authority as possible as would bring about the optimum realization of the aforesaid objectives. These objectives would only be half-met and easily thwarted if the Lupon's authority is exercised only in cases falling within the exclusive jurisdiction of inferior courts. Moreover, if it is the intention of the law to restrict its coverage only to cases cognizable by the inferior courts, then it would not have provided in Section 3 thereof the following rule on Venue, to wit: Section 3. Venue. ... However, all disputes which involve real property or any interest therein shall be brought in the Barangay where the real property or and part thereof is situated. for it should be noted that, traditionally and historically, jurisdiction over cases involving real property or any interest therein, except forcible entry and detainer cases, has always been vested in the courts of first instance [now regional trial court]. But it is pointed out by the respondent judge that Sections 11, 12, and 14, of the law speak of the city and/or municipal courts as the forum for the nullification or execution of the settlement or arbitration award issued by the Lupon. We hold that this circumstance cannot be construed as a limitation of the scope of authority of the Lupon. As heretofore stated, the authority of the Lupon is clearly established in Section 2 of the law; whereas Sections 11, 12 and 14, relied upon by respondent judge, deal with the nullification or execution of the settlement or arbitration awards obtained at the barangay level. These sections conferred upon the city and municipal courts the jurisdiction to pass upon and resolve petitions or actions for nullification or enforcement of settlement/arbitration awards issued by the Lupon, regardless of the amount involved or the nature of the original dispute. But there is nothing in the context of said sections to justify the thesis that the mandated conciliation process in other types of cases applies exclusively to said inferior courts. Any doubt on the issue before Us should be dispelled by Circular No. 22 issued by Chief Justice Enrique M. Fernando, regarding the implementation of the Katarungang Pambarangay Law. It is significant that the above-quoted circular embodying the directive "to desist from receiving complaints, petitions, actions and proceedings in cases falling within the authority of said Lupons," has been addressed not only to judges of city and municipal courts, but also to all the judges of the courts of first instance, circuit criminal courts, juvenile and domestic courts and courts of agrarian relations, now known as regional trial courts under B.P. No. 129. The said circular was noted by president Ferdinand E. Marcos in a Letter of Implementation, dated November 12, 1979, the first paragraph of which reads as follows: "with the view to easing up the log-jam of cases and solving the backlogs in the case of dockets of all government offices involved in the investigation, trial and adjudication of cases, it is hereby ordered that immediate implementation be made by all government officials and offices concerned of the system of amicably settling disputes at the barangay level as provided for in the Katarungang Pambarangay Law [Presidential Decree No. 1508]." FELICIDAD UY VS HON. MAXIMO C. CONTRERAS 1994 FACTS: Felicidad Uy subleased from respondent Susanna Atayde (hereinafter Atayde) the other half of the second floor of a building located at corner Reposo and Oliman Streets, Makati, Metro Manila wherein she operated and maintained a beauty parlor.

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LOCGOV (PROF. RVG) - Digests (02.19.13) A-2014 15 April 1993The sublease contract expired however, Uy was not able to remove all her movable properties. 17 April 1993an argument arose between the petitioner and Atayde when the former sought to withdraw from the subleased premises her remaining movable properties. The argument degenerated into a scuffle between Uy, on the one hand, and Atayde and several of Atayde's employees, including private respondent Winnie Javier (hereinafterJavier), on the other. 21 April 1993the private respondent had themselves medically examined for the alleged injuries inflicted on them by the petitioner. 23 April 1993the private respondents filed a complaint with the barangay captain of Valenzuela, Makati, which was docketed as Barangay Cases Nos. 1023 and 1024. The confrontation of the parties was scheduled by the barangay captain for 28 April 1993. On the said date, only the petitioner appeared. The barangay captain then reset the confrontation to 26 May 1993. 11 May 1993, the Office of the Provincial Prosecutor of Rizal filed two informations for slight physical injuries against the petitioner with the MTC of Makati. 21 May 1993Judge Contreras of Branch 61 ordered the petitioner to submit her counter-affidavit and those of her witnesses. 14 June 1993the petitioner submitted the required counter-affidavits. In her own counter-affidavit, the Uy specifically alleged the prematurity of the filing of the criminal cases for failure to undergo conciliation proceedings as she and the private respondents are residents of Manila. She also attached to it a certification by the barangay captain of Valenzuela, Makati, dated 18 May 1993, that there was an ongoing conciliation between Atayde and the petitioner in Barangay Case No. 1023. 18 June 1993Uy filed a motion to dismiss Criminal Cases Nos. 145233 and 145234 for non-compliance with the requirement of P.D. No. 1508 on prior referral to the Lupong Tagapamayapa and pursuant to Section 18 of the 1991 Revised Rule on Summary Procedure. On 2 July 1993, public respondent Judge Contreras handed down an order denying the motion to dismiss, saying that the accused had already waived the right to a reconciliation proceedings before the barangay of Valenzuela, Makati considering that accused and complainant are residents of different barangays; that the offense charged occurred in the Municipality of Makati; and finally, this offense is about to prescribe. The petitioner contends that the respondent judge committed grave abuse of discretion amounting to lack of jurisdiction when he denied the motion to dismiss considering that the private respondents failed to comply with the mandatory requirement of P.D. No. 1508, now embodied in Section 412 of the Local Government Code of 1991 and further required under the 1991 Revised Rule on Summary Procedure. Respondents contend that the denial of the motion to dismiss is proper because prior referral of the dispute to the lupon is not applicable in the case of private respondent Javier since she and the petitioner are not residents of barangays in the same city or municipality or of adjoining barangays in different cities or municipalities and that referral to the lupon is not likewise required if the case may otherwise be barred by the statute of limitations. Moreover, even assuming arguendo that prior referral to the lupon applies to the case of private respondent Atayde, the latter had, nevertheless, substantially complied with the requirement.

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HELD: The law on the katarungang pambarangay was originally governed by P.D. No. 1508 however, the Local Government Code of 1991, specifically Chapter 7, Title I, Book III thereof, revised the law on the katarungang pambarangay. Pertinent portions of which are Sections 408 (subject matter of amicable settlement), 410 (procedure for amicable settlement), 412 (conciliation) and 415 (appearance of parties in person). Note: Please

LOCGOV (PROF. RVG) - Digests (02.19.13) A-2014 refer to the Codal. It may thus be observed that the revised katarungang pambarangay law has at least three new significant features, to wit: It increased the authority of the lupon in criminal offenses from those punishable by imprisonment not exceeding thirty days or a fine not exceeding P200.00 in P.D. No. 1508 to those offenses punishable by imprisonment not exceeding one year or a fine not exceeding P5,000.00. o The first feature has necessarily broadened the jurisdiction of the lupon and if the mediation and conciliation process at that level would be effectively pursued, few cases would reach the regular courts, justice would be achieved at less expense to the litigants, cordial relationships among protagonists in a small community would be restored, and peace and order therein enhanced. As to venue, it provides that disputes arising at the workplace where the contending parties are employed or at the institution where such parties are enrolled for study, shall be brought in the barangay where such workplace or institution is located. o The second feature, which is covered by paragraph (d), Section 409 of the Local Government code, also broadens the authority of the lupon in the sense that appropriate civil and criminal cases arising from incidents occurring in workplaces or institutions of learning shall be brought in the barangay where such workplace or institution is located. That barangay may not be the appropriate venue in either paragraph (a) or paragraph (b) of the said section. This rule provides convenience to the parties. Procedural rules including those relating to venue are designed to insure a fair and convenient hearing to the parties with complete justice between them as a result. Elsewise stated, convenience is the raison d'etre of the rule on venue. It provides for the suspension of the prescriptive periods of offenses during the pendency of the mediation, conciliation, or arbitration process. Paragraph (c) of Section 410 of the law, however, suffers from some ambiguity when it provides that the prescriptive periods "shall resume upon receipt by the complainant of the complaint or the certificate of repudiation or of the certification to file action issued by the lupon or pangkat secretary." What is referred to as receipt by the complainant of the complaint is unclear; obviously, it could have been a drafting oversight. Accordingly, in the above quoted Section 11 of the Rules and Regulations issued by the Secretary of Justice, the phrase " the complaint or" is not found, such that the resumption of the running of the prescriptive period shall, properly, be from receipt by the complainant of the certificate of repudiation or the certification to file action issued by the lupon or the pangkat secretary . Such suspension, however, shall not exceed sixty days. o The third feature is aimed at maximizing the effectiveness of the mediation, conciliation, or arbitration process. It discourages any intentional delay of the referral to a date close to the expiration of the prescriptive period and then invoking the proximity of such expiration as the reason for immediate recourse to the courts. It also affords the parties sufficient time to cool off and face each other with less emotionalism and more objectivity which are essential ingredients in the resolution of their dispute. The sixty-day suspension of the prescriptive period could spell the difference between peace and a full-blown, wearisome, and expensive litigation between the parties. While P.D. No. 1508 has been repealed by the Local Government Code of 1991, the jurisprudence built thereon regarding prior referral to the lupon as a pre-condition to the filing of an action in court remains applicable because its provisions on prior referral were substantially reproduced in the Code. In the proceeding before the court a quo, the petitioner and the respondent had in mind only P.D. No. 1508. The petitioner further invoked the aforequoted Section 18. None knew of the repeal of the decree by the Local Government Code of 1991. Even in her instant petition, the petitioner invokes the decree and Section 18 of the Revised Rule on Summary Procedure. However, the private respondents, realizing the weakness of their

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LOCGOV (PROF. RVG) - Digests (02.19.13) A-2014 position under P.D. No. 1508 since they did refer their grievances to what might be a wrong forum under the decree, changed tack. In their Comment, they assert that on 20 April 1993 Atayde "filed a complaint against petitioner before the barangay council of Barangay Valenzuela, Makati, in compliance with the requirement of the Katarungang Pambarangay Law under the Local Government Code ." Yet, in a deliberate effort to be cunning or shrewd, which is condemnable for it disregards the virtue of candor, they assert that the said law is not applicable to their cases before the court a quo because (a) the petitioner and respondent Atayde are not residents of barangays in the same city or municipality; (b) the law does not apply when the action, as in the said cases, may otherwise be barred by the statute of limitations; and (c) even assuming that the law applies insofar as Atayde is concerned, she has substantially complied with it.In view of the private respondents' failure to appear at the first scheduled mediation on 28 April 1993 for which the mediation was reset to 26 May 1993, no complaint for slight physical injuries could be validly filed with the MTC of Makati at any time before such date. The filing then of Criminal Cases Nos. 145233 and 145234 with the said court on 11 May 1993 was premature and, pursuant to paragraph (a), Section 412 of the Local Government Code, respondent Judge Contreras should have granted the motion to dismiss the criminal cases. Moreover, having brought the dispute before the lupon of barangay Valenzuela, Makati, the private respondents are estopped from disavowing the authority of the body which they themselves had sought. Their act of trifling with the authority of the lupon by unjustifiably failing to attend the scheduled mediation hearings and instead filing the complaint right away with the trial court cannot be countenanced for to do so would wreak havoc on the barangay conciliation system. Granting arguendo that the petitioner did inflict the alleged physical injuries, the offense for which she may be liable would only be slight physical injuries under paragraph (2), Article 266 of the Revised Penal Code, considering that per the medical certificates the injuries sustained by the private respondents would "heal" in nine days "in the absence of complication" and there is no showing that the said injuries incapacitated them for labor or would require medical attendance for such period. The penalty therefor would only be "arresto menor or a fine not exceeding 200 pesos and censure." These penalties are light under Article 25 of the Revised Penal Code and would prescribe in two months pursuant to Article 90. Accordingly, since the slight physical injuries charged in Criminal Cases Nos. 145233 and 145234 were allegedly inflicted on 17 April 1993, the prescriptive period therefor would have expired two months thereafter. Nevertheless, its running was tolled by the filing of the private respondents' complaints with the lupon of Valenzuela, Makati, on 23 April 1993 and automatically suspended for a period of sixty days, or until 22 June 1993. If no mediation or conciliation could be reached within the said period of suspension and, accordingly, a certification to file action is issued, the private respondents would still have fifty-six days within which to file their separate criminal complaints for such offense. WINGARTS VS MEJIA 1995, Regalado Complainants: Johan L.H. Wingarts and Ofelia A. Wingarts Respondent: Judge Servillano M. Mejia (Municipal Trial Court judge of Santa Maria, Pangasinan) FACTS: These three administrative complaints were an offshoot of three criminal cases decided by respondent judge and involving the Wingarts and Col. Rodulfo Munar.

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LOCGOV (PROF. RVG) - Digests (02.19.13) A-2014 Johan L.H. Wingarts was the accused in Criminal Cases Nos. 2663 and 2664 filed in the aforesaid municipal trial court for malicious mischief and grave threats by Col. Munar as the private complainant. Thereafter, the Wingarts made a counter-charge against Col. Munar resulting in the third criminal case for usurpation of authority (Criminal Case No. 2696) with Col. Munar as the accused. 1st COMPLAINT: In the administrative complaint relative to Criminal Case No. 2663 for malicious mischief, respondent judge is charged with malicious delay in the administration of justice. The case allegedly dragged for one year and four months in respondent's sala and was ultimately dismissed after an ocular inspection of the burned premises was conducted by the court personnel. 2nd COMPLAINT: Charges respondent judge with incompetence, ignorance of the law and abuse of authority for taking cognizance of Criminal Case No. 2664 for grave threats and for issuing a warrant of arrest against him despite lack of prior barangay conciliation. The said case was later dismissed and indorsed to the barangay official concerned. [RELEVANT] 3rd COMPLAINT: Charges respondent judge with rendering an unjust decision in Criminal Case No. 2696, for usurpation of authority . Complainants insist that in the said criminal case, the two accused therein, Capt. Dominador Manuel and Col. Rodulfo Munar who are both military lawyers, violated the prohibition against their appearing in civil courts without the necessary authorization. However, in a decision dated May 12, 1994, respondent judge acquitted both accused, holding that accused Col. Rodulfo Munar is the complainant in criminal cases nos. 2662 and 2664 for malicious mischief and grave oral defamation respectively and what the accused have performed or exercised was not that of the fiscal or public prosecutor's duties but in their capacity as the offended party and private counsel respectively. RESPONDENT JUDGE: RE: 1st COMPLAINT, the proceedings were continuous until the complainant was acquitted of the crime charged against him. The case was decided 1 month and 3 days after it was submitted for decision. RE: 2nd COMPLAINT, he took cognizance of Criminal Case No. 2664 in the belief that there had been substantial compliance with the requirements of the Katarungang Pambarangay Law since a certification of the barangay captain regarding a confrontation of the parties, the fact that no amicable settlement was reached by them, and that he was endorsing the filing of the case in court, had been duly submitted to respondent judge. [RELEVANT] RE: 3rd COMPLAINT, his judgment of acquittal in the criminal case against the aforenamed military lawyers for usurpation of authority was the result of his honest findings and conclusion based on the evidence and the law in the hearing of the case. He denied having rendered an unjust judgment and reiterated that due process was observed and the case was prosecuted to the fullest extent, giving the prosecution all the time and opportunity to present their evidence. 10 OFFICE OF THE COURT ADMINISTRATOR: (Memorandum dated Dec. 27, 1994) {Note: Please refer to the original case for a more detailed discussion of the ruling on the 1st and 3rd complaints} 1st COMPLAINT: Delay in hearing does not appear to be malicious nor deliberate. If at all, the delay was in the hearing of the case and for apparently excusable grounds. 2nd COMPLAINT [RELEVANT]: Had respondent Judge exercised greater prudence, he could have known at the outset that under Art. 408 (c), Chapter 7, Title One, Book III, Local Government Code of 1991 (The Revised Katarungang Pambarangay Law), offenses punishable by imprisonment not exceeding 1 year or a fine not exceeding P5,000.00 require prior barangay conciliation. The crime of grave threats punishable under Art. 282 RPC falls within the purview of that section. Furthermore, Sec. 412 (a) of the same law likewise provides:

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LOCGOV (PROF. RVG) - Digests (02.19.13) A-2014 Sec. 412. CONCILIATION (a) Precondition to filing of Complaint in Court No complaint, petition, action or proceeding involving any matter within the authority of the lupon shall be filed or instituted directly in court or any other government office for adjudication unless there has been a confrontation between the parties before the lupon chairman or the pangkat, and that no conciliation or settlement has been reached as certified by the lupon secretary or pangkat secretary as attested to by the lupon or pangkat chairman or unless the settlement has been repudiated by the parties thereto. Had respondent Judge observed the mandate of the aforequoted provision of law he could have remanded the case to the lupon instead of taking cognizance thereof and prematurely issuing the warrant of arrest against the accused. Such an actuation, however, does not appear to be tainted with malice or evil intent. Respondent Judge dismissed Criminal Case No. 2664 in his Order of April 16, 1993 upon motion of the defense counsel. This notwithstanding, administrative sanction is warranted against respondent Judge. 3rd COMPLAINT: For a judge to be held liable for knowingly rendering an unjust judgment, it must be established that the judgment is unjust and that the judge knew it to be unjust. A judgment may be said to be unjust when it is manifestly against the law and contrary to the weight of evidence. From a review of the questioned decision and without ruling on its propriety, we do not find that respondent Judge has knowingly rendered an unjust judgment. He does not appear to have been motivated by an evil or corrupt motive to deliberately perpetuate an injustice. RELEVANT ISSUE: W/N respondent judge is liable for incompetence and ignorance of the law for taking cognizance of Criminal Case No. 2664 despite the legal obstacles thereto. HELD: YES. Although SC disagrees with the punitory sanction recommended by the Office of the Court Administrator, respondent judge is indeed liable for incompetence and ignorance of the law. A judge should be the embodiment of competence, integrity and independence and should administer justice impartially and without delay. He should be faithful to the law and maintain professional competence, dispose of the court's business promptly and decide cases within the required periods. A judge owes it to the public and to the legal profession to know the factual bases of the complaint and the very law he is supposed to apply to a given controversy. He is called upon to exhibit more than just cursory acquaintance with the statutes and procedural rules. Party litigants will have greater faith in the administration of justice if judges cannot just be accused of apparent deficiency in the analysis of the facts of the case and in their grasp of the legal principles. For, service in the judiciary means a continuous study and research on the law from beginning to end. Although there is no clear proof of malice, bad faith, bias or partiality on his part, respondent judge should have exercised the requisite prudence, especially under the environmental circumstances of the aforesaid criminal case where personal liberty was involved. He should have carefully examined all relevant facts and issues and avoided the improvident issuance of the warrant of arrest without a circumspect review of the case which, after all, did not exhibit abstruse factual matters or complicated legal questions. The present controversy could have been avoided had he kept faith with the injunction that a member of the bench must continuously keep himself abreast of legal and jurisprudential developments because the learning process in law never ceases. HERE, assuming that he did not act with malice or bad faith and that he subsequently issued an order to recall the warrant or prevent the arrest of complainant, such considerations can mitigate but will not altogether exculpate him from the charge of incompetence and ignorance of the law, which accordingly warrants the imposition of an appropriate penalty on him. If judges wantonly misuse the powers vested in them by law,

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LOCGOV (PROF. RVG) - Digests (02.19.13) A-2014 there will not only be confusion in the administration of justice but even oppressive disregard of the basic requirements of due process. Moreover, judges are directed to desist from improvidently receiving and desultorily acting on complaints, petitions, actions or proceedings in cases falling within the authority of the Lupon Tagapamayapa. The proceedings before the lupon are a precondition to the filing of any action or proceeding in court or other government office. Such an initiatory pleading, if filed without compliance with the precondition, may be dismissed on motion of any interested party on the ground that it fails to state a cause of action. Respondent judge deserves to be appropriately penalized for his regrettably erroneous action in connection with Criminal Case No. 2664 of his court. DISPOSITIVE: Judge Servillano M. Mejia is ORDERED to pay a fine of P2,000.00, with a STERN WARNING that the commission of the same or similar offense will be dealt with more severely. CORPUZ VS CA and ALVARADO 1997, Romero FACTS Petitioner Corpuz and respondent Alvarado were two of the tenants of a certain Barredo. Due to economic difficulties, Alvarado and the other lessees executed an Affidavit of Waiver granting Barredo the right to sell his house to any person who can afford to purchase the same. Barredo sold his house to Corpuz and a tenancy relationship was established between Corpuz and Alvarado. Corpuz sent a written notice to Alvarado demanding that he vacate the room he was occupying because the children of Corpuz needed it for their own use. Alvarado refused. Corpuz filed an ejectment case with the MTC. Alvarados defenses: (1) affidavit of waiver was a forgery; (2) dispute was not referred to the Lupong Tagapamayapa. MTC: ordered Alvarado to vacate RTC: reversed and dismissed the case; purported sale between Corpuz and Barredo was the subject of a controversy pending before the NHA which must first be resolved by the said agency ISSUES: 1. W/N Corpuz unlawful detainer suit against Alvarado should be suspended until the resolution of the NHA case. NO 2. W/N the case should be dismissed upon allegation that the dispute was not referred to the Lupong Tagapayapa (topical). NO HELD: 1. MTC has exclusive jurisdiction over ejectment cases. The only issue to be resolved in these cases is the possession de facto. However, the inferior court may look into the evidence of title or ownership and possession de jure insofar as said evidence would indicate or determine the nature of possession. It cannot, however, resolve the issue of ownership by declaring who among the parties is the true and lawful owner of the property. (Refugia v. CA) Since the present petition involves the issue of possession intertwined with the issue of ownership (case pending in NHA), the Refugia doctrine is applicable. Suits for annulment of sale, or title, or document affecting the property do not abate ejectment actions respecting the same property. Reason: so that the defendant would not trifle with the ejectment suit,

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LOCGOV (PROF. RVG) - Digests (02.19.13) A-2014 which is summary in nature, by the simple expedient of asserting ownership thereon. Thus, the controversy pending before the NHA for the annulment of the Deed of Sale and assailing the authenticity of the affidavit cannot deter the MTC from taking cognizance of the ejectment suit merely for the purpose of determining who has a better possessory right among the parties. 2. The defense that the dispute was not referred to the Lupong Tagapayapa as required by PD 1508 was only stated in a single general short sentence in Alvarados answer The failure of a party to specifically allege the fact that there was no compliance with the Barangay conciliation procedure constitutes a waiver of that defense. Alvarados answer reveals that no reason or explanation was given to support his allegation, which is deemed a mere general averment. In any event, the proceeding outlined in PD 1508 is not a jurisdictional requirement and non-compliance therewith cannot affect the jurisdiction which the lower court had already acquired. Petition granted.

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