ATTY. FRANCISCO GALMAN CRUZ AND DRA. AMANDA T. CRUZ, PETITIONERS, VS. ROBERTO PAGDANGANAN, JR., ENGR. ROMEO S. CASTRO AND THE OFFICE OF THE OMBUDSMAN, RESPONDENTS.
CRUZ, J.:
The administrative complaint stemmed from the filing on September 14, 1994 before the Municipal Trial Court (or “MTC”) of Malolos, Bulacan of an action for unlawful detainer (or “ejectment case”), docketed as Civil Case No. 94-98 and entitled “Provincial Government of Bulacan, represented by its Provincial General Services Officer Engr. Romeo S. Castro, vs. Atty. Francisco Galman Cruz and Jimmy Legaspi.”
The ejectment case involved the 400 square-meter portion (or “subject property”) of that parcel of land situated at MacArthur Highway, Barrio Guinhawa, Malolos, Bulacan and covered by Original Certificate of Title (or “OCT”) No. 104 in the name of the Province. The subject property was leased by the Province to Atty. Galman Cruz for a period of thirty years beginning on July 21, 1965 and ending on July 20, 1995.
For purposes of filing the ejectment case, Gov. Pagdanganan, then governor of the Province, executed a Special Power of Attorney dated September 5, 1994 (or “questioned SPA”) designating Engr. Castro, Provincial Services Officer, as his “true and lawful attorney-in-fact for me and in my name, place and stead and for my own use and benefit, to do and perform the following acts, namely: x x x.”
The unlawful detainer case was decided by the MTC in favor of the Province. Atty. Galman Cruz appealed the MTC decision to the RTC (Civil Case No. 884-M-97) of Bulacan (Malolos, Branch 80) and then to the Court of Appeals (CA-G.R. SP No. 52309), both of which sustained the MTC in their decisions dated March 3, 1999 and February 28, 2000, respectively. Atty. Galman Cruz elevated the matter to the Supreme Court (G.R. No. 143301) by way of petition for review on certiorari, the status of which does not appear in the records.
It was after the Court of Appeals rendered the decision in the ejectment case, or on May 9, 2000, that Atty. Galman Cruz and Dr. Cruz (or “petitioners”, when collectively) filed the abovementioned administrative complaint against Gov. Pagdanganan and Engr. Castro (or “private respondents”, when collectively). Although Gov. Pagdanganan was no longer the governor of the Province as of the filing of the complaint, the OMB required the submission of his counter-affidavit since he is the main respondent in the complaint.
In their complaint-affidavit, petitioners averred that the questioned SPA was concealed from them and was revealed only on April 6, 2000, when Engr. Castro was made to produce the document authorizing him to file the ejectment case; that the SPA was executed in bad faith as it was for the benefit of Gov. Pagdanganan in his personal capacity and not of the Province; that said SPA rendered private respondents culpable for usurpation of legislative authority of the Sangguniang Panlalawigan of Bulacan since a board resolution is necessary to give them authority to file the ejectment case which was unfounded because the premises in their possession is not embraced in the land covered by OCT No. 104; and that the same case caused them undue injury through private respondents’ manifest partiality, evident bad faith and gross inexcusable neglect.
On the other hand, Gov. Pagdanganan asserted in his counter-affidavit that the execution of the questioned SPA is proper and lawful and within the purview of his powers and duties as governor; that the phrase, “for my own use and benefit” appearing in the SPA was an innocuous phrase without malicious intent whatsoever; and that the aforesaid phrase, followed by the other phrase, “for me and in my name, place and stead”, simply meant that instead of him personally filing the action, he delegated the matter to the proper public official of the Province, specifically Engr. Castro. He asserted that the filing of the ejectment case is valid and lawful because Engr. Castro merely acted as representative of the Province; and that there is no usurpation of legislative authority as a board resolution is not necessary since, as agent, he can do all the acts requisite or necessary to protect the interests of his principal, which is the Province.
Engr. Castro, in his counter-affidavit, alleged that the filing of the ejectment case was done in good faith and a valid exercise of government function; that he is duly authorized under the law and the questioned SPA; and that he merely performed his duties and functions as officer of the Province.
On October 11, 2000, the OMB rendered a decision dismissing the administrative complaint. The dispositive provision of the decision reads:
“WHEREFORE, premises considered, it is respectfully recommended that the complaint against Engr. Romeo S. Castro, presently the Provincial Engineer, Province of Bulacan be DISMISSED for lack of substantial evidence. The complaint against former Governor Roberto Pagdanganan is likewise recommended DISMISSED for lack of substantial evidence and lack of jurisdiction.”
SO ORDERED.”
Their motion for reconsideration of the OMB decision having been denied per order dated February 23, 2001, petitioners came to this Court via the instant petition for review which is anchored on the same grounds stated in their complaint-affidavit.
Commenting on the petition, Gov. Pagdanganan and the OMB raised substantially the same defenses and arguments as those interposed in the counter-affidavits of private respondents and the ratiocinations of the OMB in the assailed decision.
On August 6, 2001, or long after the reglementary period for filing the petition for review had expired, petitioners filed a motion for leave to admit their amended petition. The amendment consisted of incorporating a certification of non-forum shopping which was missing in the original petition.
The OMB and Gov. Pagdanganan opposed the motion. However, We granted the motion and admitted the amended petition per Our resolution dated November 8, 2001.
The petition is devoid of merit.
Sec. 465(3)(vi) of Rep. Act No. 7160 (“Local Government Code of 1991”) provides:
“Sec. 465 – The Chief Executive: Powers, Duties, Functions, and Compensation. – (a) The provincial governor, as chief executive of the provincial government, shall exercise such powers and perform such duties and functions as provided by this Code and other laws.
x x x
(3) Initiate and maximize the generation of resources and revenues, and apply the same to the implementation of development plans, program objectives and priorities as provided for under Section 18 of this Code, particularly those resources and revenues programmed for agro-industrial development and country-wide growth and progress and, relative thereto, shall:x x x
(vi) Institute or cause to be instituted administrative or judicial proceedings for violation of ordinances in the collection of taxes, fees or charges, and for the recovery of funds and property; and cause the province to be defended against all suits to ensure that its interests, resources and rights shall be adequately protected.”
Pursuant to Sec. 465(3)(vi), id., Gov. Pagdanganan, as governor of the Province, had the authority to institute, or cause the institution of, an ejectment suit against Atty. Galman Cruz, et al for recovery of possession of the subject property. In causing the filing of said action, he merely performed the duties and functions of a governor as chief executive of the Province.
On the other hand, the questioned SPA merely delegated to Engr. Castro, Province General Services Officer, the governor’s authority to institute the ejectment suit in behalf of the Province against Atty. Galman Cruz, et al. Besides, Sec. 490, id., empowers the General Services Officer to “(t)ake custody of and be accountable for all the properties, real or personal, owned by the local government unit”.
Similarly, there is no merit in petitioners’ contention that private respondents are liable for usurpation of legislative authority because they were given no authority by the Sangguniang Panlalawigan, thru a board resolution, to file the ejectment case. The authority of the provincial governor to pursue civil actions, particularly recovery of property, is conferred by Rep. Act No. 7160. Consequently, there is no need for a board resolution of the Sangguniang Panlalawigan empowering Gov. Pagdanganan to commence the ejectment case.
As correctly pointed out by Gov. Pagdanganan in his counter-affidavit, the agent can do all the acts requisite or necessary to protect the interest of his principal (in this case, the Province) without a written or specific authority for the purpose. This power is different from entering into a contract in behalf of the principal where a specific authority is necessary. Thus, Secs. 22(c) and 468(a), par. 2(iii), id., provide:
“Sec. 22. Corporate Powers – x x x
(c) Unless otherwise provided in this Code, no contract may be entered into by the local chief executive in behalf of the local government unit without prior authorization by the sanggunian concerned. x x x”
“Sec. 468. Powers, Duties, Functions and Compensation. – x x x
(a) x x x
(2) x x x
(iii) Subject to the provisions of Book II of this Code and applicable laws and upon the majority vote of all the members of the sangguniang panlalawigan, authorize the provincial governor to negotiate and contract loans and other forms of indebtedness x x x.”
Even supposing that the questioned SPA is an ultra-vires act of the then governor, nevertheless, such act was impliedly ratified by the Sangguniang Panlalawigan of Bulacan since it made no objection thereto. As pointed out by this Court (CA-G.R. SP No. 52309) in its decision in the ejectment case:
“x x x. And as no objection to his representation was heard from the provincial government, the authority of Engr. Castro to bring the complaint for ejectment is by implied delegation of the Board (Vicente vs. Geraldez, 52 SCRA 210).”
Moreover, as of the filing of the administrative complaint, Gov. Pagdanganan was no longer the governor of the Province. Such being the case, he “can no longer be removed” (Reyes vs. Commission on Elections, 254 SCRA 514).
Finally, the original petition contains no certification against forum shopping. In this connection, Sec. 5, Rule 7 and Sec. 6, Rule 43 of the 1997 Rules of Civil Procedure pertinently state:
“Sec. 5. Certification against forum shopping. – The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.
Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing.”
x x x
“Sec. 6. Contents of the petition. – The petition for review shall xxx xxx xxx (d) contain a sworn certification against forum shopping as provided in the last paragraph of section 2, Rule 42.”
Petitioners contend that the certification against forum shopping was omitted in the original petition thru inadvertence and superficial negligence.
However, the requirement to file a certificate of non-forum shopping is mandatory. Subsequent compliance with said requirement cannot excuse a party’s failure to comply in the first instance (Melo vs. Court of Appeals, 318 SCRA 94). Thus, Sec. 5, Rule 47, id., is emphatic in providing that failure to comply with the requirements shall not be curable by amendment of the complaint or other initiatory pleading and shall be a cause for the outright dismissal of the case.
WHEREFORE, the instant petition is DISMISSED while the appealed decision of the Office of the Ombudsman is AFFIRMED.
SO ORDERED.
Roxas[*] and Bato, Jr., JJ., concur.
[*] Vice J. Arturo D. Brion, now Secretary of Labor and Employment