THE CITY OF CEBU, PETITIONER VS. JUDGE EDMUNDO S. PICCIO, OF THE COURT OF FIRST INSTANCE OF CEBU, AND ANACLETO CABALLERO, RESPONDENTS. THE CITY OF CEBU, PLAINTIFF AND APPELLANT …

On April 11, 1955, Anacleto Caballero filed with the CFI of Cebu (Civil Case
No. R-3941), a petition for Mandamus against the City Mayor, the Municipal
Board, the City Treasurer and the City Auditor, all of Cebu City, for
reinstatement to his former position of Caretaker, Operation of Cemeteries, and
for the payment of his back salaries from April 15, 1953. On August 6, 1955, the
Hon. Edmundo Piccio, rendered the following judgment:

“In view thereof, this Court hereby decides that this petition is in order
and consequently orders for the reinstatement of petitioner Caballero to his
former position from which he has been separated without benefit of an
investigation and determination of sufficient cause, and was thus contrary to
the existing law and regulations, such reinstatement to be effected within 30
days from receipt of this order plus the payment of his back salaries from April
15, 1953.”

No appeal had been taken by the respondents therein and the above judgment
became final. Upon motion of petitioner therein (Caballero), a writ of execution
was issued. Pursuant to the writ, the municipal board of Cebu City passed a
resolution, appropriating the amount of P3,224.00 for the payment of the back
salaries of Caballero. Respondent City Mayor Jose V. Rodriguez approved the
resolution and the amount was paid to Caballero.

Caballero not having been reinstated, notwithstanding the abolition of his
position, Judge Piccio issued an order dated August 27, 1958, directing the
municipal board to recreate Caballero’s position as Caretaker, with compensation
of P4.00 per day. As the municipal board did not comply with the order, on
September 11, 1957, Caballero filed a motion, asking for an order to compel the
members of the board to do so. The City Mayor, members of the board, the
treasurer and the Auditor, answering the motion for compliance, alleged that the
City of Cebu, not having been made a party to the case (Mandamus), compulsion
would be illegal and unwarranted under the facts obtaining.

The lower court entered, on October 11, 1957, the following Order:

“In view thereof, the Court, amending its original order of reinstatement by
excluding therefrom petitioner’s right to reimbursement of his back salaries
from June 30, 1955 to the date of his reinstatement, hereby directs that its
order of August 28, 1957, directing respondent Municipal Board to recreate the
petitioner’s position as caretaker of the cemetery of Cebu, Cebu City, with
compensation at the rate of P4.00 a day including Sundays and holidays be
carried out within 5 days from receipt of this order, or the Getirt shall avail
itself of its coercive powers to enforce said directive until it is
obeyed.”

The City of Cebu took exception from the above order and on October 18, 1957,
filed a petition for Certiorari with this Court (G.R. No. L-13012), to restrain
Caballero and Judge Piccio from executing the amended judgment.

Before the termination of the Mandamus proceedings, on October 2,
1957, the City of Cebu, claiming that the payment of the sum of P3,224.00 to
Caballero was wrongful and illegal, since it was not a party to the case,
instituted an action (Civil Case No. R-5243) against said Caballero, for the
recovery of the same amount, plus P25,000.00 by way of compensatory, moral and
exemplary damages. Instead of answering, Caballero on October 29, 1957, moved to
dismiss the complaint for alleged failure to state a cause of action. To
buttress his motion, Caballero cited a number of cases decided by this Court,
ordering the payment of back salaries of employees illegally ousted, even though
the municipality and/or city concerned was not impleaded. (Mission et al.
vs. Del Rosario, et al., 94 Phil., 483; 50 Off. Gaz., No. 4, 1571; Uy
vs. Rodriguez 95 Phil., 493; 50 Off. Gaz., No. 8, 3574; Rodriguez
vs. Del Rosario, et al., 93 Phil., 1070; 49 Off. Gaz., [12] 5427;
Manuel vs. De la Fuente, 92 Phil., 302; 48 Off. Gaz., No. 11, 4829-32).
An answer to the Motion to Dismiss was presented by the City of Cebu on October
30, 1957, invoking Section 5 of the Charter for the said City, exempting the
City Government from any liability for damages or injuries to person or property
arising from the failure of the Mayor, the Municipal Board, or any other city
officer, to enforce the provisions of the Charter, or any other law or
ordinance, or from negligence of the said officials and/or officers while
enforcing or attempting to enforce the said provisions. Cited in support of this
Answer were cases decided by this Court, dismissing them for failure to include
the municipal corporations concerned (Cabanes, et al. vs. Rodriguez, et
al., G.R. No. L-9799, May 31, 1957; Cabo Kho vs. Rodriguez, et al.,
G.R. No. L-9032, Sept. 28, 1957; City of Bacolod vs. Enriguez, et al.,
101 Phil., 644; 55 Off. Gaz., [51] 10545; Angara vs. Gorospe, 101 Phil., 79; 53
Off. Gaz. [14] 4480).

On December 3, 1957, the CFI of Cebu, presided by Judge Rodriguez entered an
order dismissing the complaint. The City of Cebu appealed the order directly to
this Court, (now G. R. No. L-14876), claiming that the lower court erred; (1) in
overlooking the fact that the City of Cebu was never made a party in the
mandamus case (Civil No. R-3941), so that it could not be bound by the judgment
therein entered; (2) in ignoring the provisions of section 5 of the Charter of
the City of Cebu, as interpreted and applied in the case of Faunillan vs. Del
Rosario, et al, 99 Phil., 758; Off. Gaz. [31] 5815; and (3) in dismissing the
case.

The issues involved in the petition for certiorari and the appeal
are identical. Both cases pose the following questions: (1) Does the
non-inclusion of the City of Cebu in the Mandamus case, make the
payment of the back salaries of CabaUero wrongful or illegal and not binding on
said City; and (2) Is the dismissal of the recovery case, well taken?

While the petition is designated as certiorari, there is, however,
no allegation therein regarding the lack or excess of jurisdiction or grave
abuse of discretion, committed by the respondent court which constitute
precisely the basis of this kind of action. Furthermore, the appropriate remedy
against the decision and/or orders complained of is appeal, if proper and
timely, which petitioners herein did not interpose.

It seems that the complaint to refund is predicated upon the following
provisions of the Civil Code:

“Art. 2154. If something is received when there is no right to demand it, and
it was unduly delivered through mistake, the obligation to return it arises.”

Considering that the indispensable Requisites of tins juridical relation,
known as solutio indebiti are (a) that he who paid was not under obligation to
do so; and (b) that the payment was made by reason of an essential mistake of
fact (Hoskyn vs. The Goodyear Tire, etc., CA, 40 Off. Gaz., Supp. 11,
245; Velez vs. Balzarza, 73 Phil., 630), we are of the belief that the
complaint was correctly dismissed. It is fully established that Caballero had
the perfect right to demand for the payment of his back salaries during his
illegal dismissal, that the sum of P3,224.00 was paid to Caballero by virtue of
a writ of execution lawfully issued; and that the payment was not made through
mistake. On this score, alone, it would appear manifest that tfce complaint does
not state a cause of action.

The question of whether the City of Cebu was a party or not in the
mandamus case becomes unimportant, as it is immaterial. It is true that
in the mandamus case, only the City Mayor, the municipal Board, the City
Treasurer and the City Auditor, of Cebu City were included in the order of the
execution of the judgment, but we have declared that a municipal corporation,
whether included or not in the complaint for the recovery of back salaries due
to wrongful removal from office, is liable. In the case of Mangubat vs.
Osmeña, G.R. No. L-12837, April 30, 1959, a ruling was enunciated, thus:

“The necessity of making the City a respondent herein is based upon its right
to defend itself, as demanded by the requirements of due process. However, these
requirements have been substantially complied with in the case at bar. The
parties herein have handled the case, and the same was heard and decided in the
lower court, as if the City had been named respondent in the pleadings. The
officer required by law to cause to be defended all suits against the City’,
namely, its Mayor, (Sec. 8, Commonwealth Act No. 58) , is respondent in his
official capacity. The officer charged with the duty to represent the City ‘in
all civil cases wherein the City * * * is a party’—to wit, its city attorney
(Sec. 17, Commonwealth Act No. 58)—counsel for respondents herein. In addition
thereto, the auditor, the treasurer, and even the municipal board of the City of
Cebu, are parties respondents.

There is no reason to believe that these officers and the City Mayor would
have exerted greater effort, than those already displayed by them, in protecting
the interests of the City of Cebu, were it formally a respondent therein.
Indeed, it is only logical to expect that, having been individually named as
respondents, said officers, must have taken as much concern if not more, in
warding off petitioner’s claim. Under the foregoing circumstances, we would be
subordinating the substance to the form if the action for mandamus—insofar as
the claim for back salaries is concerned —were, either dismissed, or remanded to
the lower court, for the corresponding amendment of the pleading and a
repetition of the proceedings held for the last five (5) years, in order to
reach the same decision rendered by the lower court and the same conclusions set
forth in this decision, as regards the substantive rights of the parties. It
is our considered opinion, therefore, that the ends of justice and equity would
be served best if the inclusion of the City of Cebu, as one of the respondents
herein, were considered a mere formality and deemed effected, as if a formal
amendment of the pleadings had been made.” (Italics
supplied).

which was reiterated in the case of Discanso, et al. vs. Gatmaitan,
et al., 109 Phil., 918; 60 Off. Gaz., [42] 6786.

We find no plausible reason for disregarding the above ruling on a procedural
matter, knowing as we do, that after all, the obligation to pay tfce back salary
of Caballero, cannot be eluded and that the officer concerned in the City of
Cebu will have to pay it anyhow, in his official capacity. When a judgment is
rendered against an officer of a municipal corporation who sues or is sued in
his official capacity, the judgment is binding upon the corporation, upon the
other officers of the municipal corporation who represent the same interest and
the effect of judgment against a municipal officer is not lost by a change in
the occupant of the office. (38 Am. Jur. sec. 727, pp. 431-32). We are not
unmindful of the pronouncements in the Faunillan case (supra) but the
same is evidently predicated upon a different set of facts. Furthermore, it
would seem that the City of Cebu in the case at bar, had already waived the
rights and benefits afforded by section 5 of the Cebu City Charter, by and
through the acts of its agents, the officers-respondents in the
mandamus case, by appropriating funds and paying; Caballero with them.
The lawful act of these officers within the scope of their authority is deemed
the act of the principal, the City of Cebu.

In view hereof, the petition for certiorari is dismissed for lack of
merits and the order of dismissal of the complaint, object of the appeal, is
affirmed. Costs is taxed against the petitioners and the appellant City of Cebu,
in both instances and in both cases. So ordered.

Bengzon, Padilla, Bautista Angelo, Reyes, J.B.L., Barrera, and
Gutierrez David, JJ., concur.

In L-13012, petition dismissed and in L-14876, order
affirmed.