[G.R. No. 147767. January 14, 2004]
Manuel E. Zamora, petitioner, vs. Governor Jose R. Caballero, Anesio M. Ranario, in his capacity as Provincial Administrator, Mariano Kintanar, in his capacity as Provincial Auditor, CARMEN R. RASUL, in his capacity as Provincial Treasurer, Rolando L. Osorio, Belinda G. Apawan, Armando L. Seras, Ruwel Peter S. GONZAGA, Armando C. Codilla, Raul B. Basañes, Graciano C. Arafol, Jr., respondents.
D E C I S I O N
Petitioner Manuel Zamora, a member of the Sangguniang Panlalawigan of Compostela Valley (the Sanggunian), seeks to invalidate all acts executed and resolutions issued by the Sanggunian during its sessions held on February 8 and 26, 2001 for lack of quorum.
It appears that on February 6, 2001, Vice-Governor Reynaldo Navarro sent a written notice of a special session on February 7, 2001. Upon the request of Governor Jose R. Caballero, however, the scheduled special session was reset to February 8, 2001 without the benefit of a written notice.
On February 8, 2001, the Sanggunian thus held a special session to, among other things, allow the Governor to deliver his State of the Province Address. As only seven members of the fourteen-member Sanggunian were present, no resolution was considered.
On February 26, 2001, the Sanggunian held its 4th regular session during which it issued Resolution No. 05 declaring the entire province of Compostela Valley under a state of calamity and Resolution No. 07 authorizing the Governor to, on behalf of the province, enter into a construction contract (Contract) with Allado Construction Company, Inc. (the Allado Company) for the completion of Phase II of the construction of the capitol building. During the same session, the Sanggunian accepted the letter of irrevocable resignation submitted by Board Member Gemma Theresa M. Sotto.
While only eight members of the Sanggunian were present at the commencement of the session on February 26, 2001, the Journal of the Proceedings (Journal) and Resolution Nos. 05 and 07 showed that a total of thirteen members attended it.
Petitioner thus filed a petition before the Regional Trial Court (RTC) of Nabunturan, Compostela Valley against the Governor, et al., challenging the validity of the acts of the Sanggunian on February 26, 2001, alleging that while the Journal and Resolutions indicated the presence of 13 members, the Sanggunian nonetheless “conducted official business without a quorum” as only seven of its fourteen members were actually present when the irrevocable letter of resignation of Board Member Sotto was noted, and the motions to declare the entire province of Compostela Valley under a state of calamity and to authorize the Governor to enter into the Contract with the Allado Company were approved.
Petitioner additionally alleged that when the vote respecting Resolution No. 05 was taken, only the remaining six members voted for the adoption thereof, the then presiding officer Board Member Rolando Osorio not having cast his vote; that when Resolution No. 07 was taken up, however, then presiding officer Osorio, relinquished his seat to Board Member Graciano Arafol after the six members present unanimously voted on the said resolution in the affirmative, following which Osorio cast his vote as a member also in the affirmative, thereby authorizing the Governor to enter into the Contract with Allado Company; and that Board Member Arafol thereafter relinquished his seat as presiding officer to Board Member Osorio who once again assumed the duties of a presiding officer.
Petitioner furthermore challenged the validity of the special session of February 8, 2001 for lack of quorum, there being only seven members of the Sanggunian in attendance, and for lack of written notice sent to all members at least 24 hours before the holding of the special session in accordance with Section 52 (d) of the Local Government Code of 1991 (LGC).
Respondents, on the other hand, contended that since Board Member Sotto was in the United States at the time the questioned acts were executed and resolutions adopted, the actual number of Board Members then in the country was thirteen which should be the basis of the determination of a quorum.
Branch 3 of the RTC of Nabunturan, at Compostela Valley, by Order of April 24, 2001, dismissed the petition upon the following ratiocination:
. . . Gemma Theresa M. Sotto should not be counted as member for the purpose of determining the number to constitute a quorum because she is in the United States of America. However, sub-paragraph (b) [of section 53 of the Local Government Code] states and provides for compulsion of any member absent without any justifiable cause.
This is interpreted by the Supreme Court in the case of Jose Avelino, petitioner vs. Mariano J. Cuenco, respondent, G.R. No. L-2821, March 4, 1949.
Gemma Theresa M. Sotto is beyond the reach of the legal processes of the Sangguniang Panlalawigan and could not be arrested to compel her to attend its session. Quorum should be determined on the basis of the actual number of members of the body concerned rather than upon its full membership which is fourteen (14). Therefore, in this case, with seven (7) members of the thirteen (13) members present in constitutive of a quorum. x x x
Hence, the present petition for Certiorari under Rule 45, faulting the trial court for erroneously (1) applying the case of Avelino v. Cuenco to a controversy involving a local government unit; (2) taking judicial notice of Board Member Sotto’s being in the United States without proof thereof; and (3) ruling that to grant a Temporary Restraining Order would be in violation of P.D. 1818.
Respondents question the authority of the Court to look beyond the Journal and Resolutions of the Sanggunian and assert that the construction of the capitol building cannot be enjoined. And they too assert that the presence of thirteen members at the February 26, 2001 session should be conclusive on the strength of Arroyo v. De Venecia and U.S. v. Pons. Citation of these cases is misplaced, however.
In Arroyo v. De Venecia, this Court refused to inquire into allegations that the House of Representatives failed to comply with the rules of procedures which the House itself promulgated absent any showing that there was a violation of a constitutional provision or of the rights of private individuals.
In U.S. v. Pons, this Court did not go beyond the legislative journals which it found clear and explicit, it holding that to disprove the entries in the journals, evidence must be adduced based merely upon the memory or recollection of witnesses in contrast to journals which are the acts of the Government or sovereign itself.
In the instant case, this Court is not called upon to inquire into the Sanggunian’s compliance with its own rules. Rather, it is called upon to determine whether the Sanggunian complied with the LGC, a law enacted by Congress, and its Implementing Rules.
Moreover, the Journal of the Sanggunian is far from clear and explicit as to the presence of a quorum when the questioned acts were taken. It does not indicate how many members were actually present when the body voted on the motions leading to the adoption of Resolution Nos. 05 and 07. While the Journal and the Resolutions show that 13 members attended the session, the Journal shows that only six members were called by the presiding officer to vote on the motions. Six members whose names appear in attendance, namely: Vice Governor Navarro and Board Members Zamora, Yanong, Castillo, Andres and Gentugaya, were not called and, save for the absent Vice Governor, no explanation was given therefor.
Coincidentally, in Resolutions 05 and 07, the names of the Board Members who were not called upon to vote, including petitioner as he had in the meantime left, are followed by two asterisks (**).
Additionally, it was clearly noted by petitioner, when he asked permission to leave the session, that only seven members were left:
SP Member ZAMORA : Mr. President, I move to adjourn, Mr. President.
SP Member ARAFOL : Objection Mr. President.
SP Member ZAMORA : Mr. President, before the objection, before objection Mr. President, I would like to invite everybody to go at my service I have a patient nga gi-pagawas na sa hospital nga i-uli na sa Awao, it’s been there for one hour so I really have to go I have to carry that patient to Awao Mr. President.
SP Member OSORIO : You are excused Honorable…
SP Member ZAMORA : Okay, then remember that you’re only seven Mr. President.
SP Member ARAFOL : No problem.
SP Member ZAMORA : Okay so it’s alright for you to decide. The seven of you. I would like to manifest in the record that before further discussion that…
SP Member GONZAGA : Mr. President he is already excused Mr. President.
SP Member ZAMORA : Yes but I would like to make statement first for the record, for the record. That I do not want Mr. President that the incident of the of the State of the Province Address will be repeated Mr. President, wherein there are only seven members present and the quorum was declared Mr. President. x x x
SP Member GONZAGA : That’s only your opinion . . . (Underscoring supplied)
Respondents themselves admit that there were only seven members present when the motions were voted upon:
26. Nevertheless, even if that remark constituted a proper question on quorum, it is a matter of fact that there were still seven (7) members present. x x x [T]here is a quorum since seven is a majority of thirteen (13). x x x  (Emphasis supplied.)
Clearly, this Court is constrained to look into the proceedings of the Sanggunian as recorded in the Journal and not just rely on Resolution Nos. 05 and 07 to determine who and how many participated in the consideration thereof. The placing of the asterisks after the names of five members in the Resolutions is highly irregular and suspicious especially since both resolutions indicate that petitioner, whose name is also followed by asterisks, was present even if it is clear from the Journal that he had already left the session before the Sanggunian took note of the resignation of Board Member Sotto and voted on the motions.
Respondents’ other contention that the construction of the capitol building cannot be enjoined in light of Malaga v. Penachos, Jr. fails to convince. In Malaga, this Court declared that although Presidential Decree No. 1818 prohibits any court from issuing injunctions in cases involving infrastructure projects, the prohibition extends only to the issuance of injunctions or restraining orders against administrative acts in controversies involving facts or the exercise of discretion in technical cases. On issues clearly outside this dimension and involving questions of law, this Court declared that courts could not be prevented from exercising their power to restrain or prohibit administrative acts.
Respondents maintain that the exception in Malaga as indicated above should not be applied in the instant case because there was therein a defect in the compliance with procedural rules on bidding. In contrast, respondents stress, the bidding for the construction of the capitol building in which the winner was the Allado Company was not defective, they adding that Resolution 07 simply authorized the Governor to formalize the Contract necessary for the full implementation of the project.
This Court fails to see the essential difference between Malaga and the instant case.
In both cases, the defect in the Contract relates to the non-compliance with the mandate of a law respecting requirements before validly entering into a contract. In Malaga, the defect pertained to bidding. In the present case, the alleged defect pertains to the required number of votes necessary to authorize the Governor to enter into a construction contract.
Clearly then, what is at issue in this case is not the propriety or the wisdom of entering into the Contract for the construction of the capitol building, which is beyond the power of this Court to enjoin, but the Sanggunian’s compliance with the requirements prescribed under the LGC before it may grant the Governor authority to enter into the Contract, which issue falls under the exception to the proscription against injunctions in cases involving infrastructure projects, as held in Malaga.
On the applicability of Avelino to the present case: The issue in said case was whether there was a quorum in a meeting attended by only 12 of 24 senators, one having been in the hospital while another was out of the country. This Court held that although the total membership of the Senate was 24, the presence of 12 members already constituted a quorum since the 24th member was outside the country and beyond the coercive power of the Senate.
In the instant case, there is nothing on record, save for respondents’ allegation, to show that Board Member Sotto was out of the country and to thereby conclude that she was outside the coercive power of the Sanggunian when the February 8 and 26, 2001 sessions were held. In fact it is undisputed that the leave form filed by said Board Member before the Department of Interior and Local Government (DILG) did not mention that she was going out of the country. Petitioner’s contention that the trial court cannot take judicial notice of Board Member Sotto’s whereabouts is thus well taken. On this score, the instant case is outside the application of the doctrine in Avelino.
A court may take judicial notice of matters of public knowledge, or those which are capable of unquestionable determination or ought to be known to judges because of their judicial functions. With respect to disputed facts, however, the court must receive evidence thereof, with notice to the parties.
Also, in Avelino, the legislative body involved was the Senate and the applicable rule on quorum was that embodied in Article VI, Section 10 of the 1935 Constitution which reads:
Section 10. x x x
(2) A majority of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day and may compel the attendance of absent Members in such manner and under such penalties as such House may provide. (Emphasis supplied)
The present case, however, involves a local legislative body, the Sangguniang Panlalawigan of Compostela Valley Province, and the applicable rule respecting quorum is found in Section 53(a) of the LGC which provides:
Section 53. Quorum.-
(a) A majority of all members of the sanggunian who have been elected and qualified shall constitute a quorum to transact official business. Should a question of quorum be raised during a session, the presiding officer shall immediately proceed to call the roll of the members and thereafter announce the results. (Emphasis supplied)
“Quorum” is defined as that number of members of a body which, when legally assembled in their proper places, will enable the body to transact its proper business or that number which makes a lawful body and gives it power to pass upon a law or ordinance or do any valid act. “Majority,” when required to constitute a quorum, means the number greater than half or more than half of any total. In fine, the entire membership must be taken into account in computing the quorum of the sangguniang panlalawigan, for while the constitution merely states that “majority of each House shall constitute a quorum,” Section 53 of the LGC is more exacting as it requires that the “majority of all members of the sanggunian . . . elected and qualified” shall constitute a quorum.
The difference in the wordings of the Constitution and the LGC is not merely “a matter of style and writing” as respondents would argue, but is actually a matter of “meaning and intention.” The qualification in the LGC that the majority be based on those “elected and qualified” was meant to allow sanggunians to function even when not all members thereof have been proclaimed. And, while the intent of the legislature in qualifying the quorum requirement was to allow sanggunians to function even when not all members thereof have been proclaimed and have assumed office, the provision necessarily applies when, after all the members of the sanggunian have assumed office, one or some of its members file for leave. What should be important then is the concurrence of election to and qualification for the office. And election to, and qualification as member of, a local legislative body are not altered by the simple expedient of filing a leave of absence.
The trial court should thus have based its determination of the existence of a quorum on the total number of members of the Sanggunian without regard to the filing of a leave of absence by Board Member Sotto. The fear that a majority may, for reasons of political affiliation, file leaves of absence in order to cripple the functioning of the sanggunian is already addressed by the grant of coercive power to a mere majority of sanggunian members present when there is no quorum.
A sanggunian is a collegial body. Legislation, which is the principal function and duty of the sanggunian, requires the participation of all its members so that they may not only represent the interests of their respective constituents but also help in the making of decisions by voting upon every question put upon the body. The acts of only a part of the Sanggunian done outside the parameters of the legal provisions aforementioned are legally infirm, highly questionable and are, more importantly, null and void. And all such acts cannot be given binding force and effect for they are considered unofficial acts done during an unauthorized session.
Board Member Sotto is then deemed not resigned because there was no quorum when her letter of irrevocable resignation was noted by the Sanggunian. For the same reason, Resolution Nos. 05 and 07 are of no legal effect.
Even assuming arguendo that there were indeed thirteen members present during the questioned February 26, 2001 session, Resolution No. 05 declaring the entire province of Compostela Valley under state of calamity is still null and void because the motion for its approval was approved by only six members. When there are thirteen members present at a session, the vote of only six members can not, at any instance, be deemed to be in compliance with Section 107(g) of the Rules and Regulations Implementing the LGC which requires the concurrence of the approval by the majority of the members present and the existence of a quorum in order to validly enact a resolution.
The motion to grant the Governor authority to enter into the construction contract is also deemed not approved in accordance with the law even if it received seven affirmative votes, which is already the majority of thirteen, due to the defect in the seventh vote. For as priorly stated, as the Journal confirms, after all six members voted in the affirmative, Board Member Osorio, as acting presiding officer, relinquished his seat to Board Member Arafol and thereafter cast his vote as a member in favor of granting authority to the Governor.
This Court is faced with an act clearly intended to circumvent an express prohibition under the law – a situation that will not be condoned. The LGC clearly limits the power of presiding officers to vote only in case of a tie, to wit:
Section 49. Presiding Officer. – (a) The vice-governor shall be the presiding officer of the sangguniang panlalawigan x x x. The presiding officer shall vote only to break a tie.
(b) In the event of inability of the regular presiding officer to preside at a sanggunian session, the members present and constituting a quorum shall elect from among themselves a temporary presiding officer. x x x (Italics in the original. Emphasis supplied.)
While acting as presiding officer, Board Member Osorio may not, at the same time, be allowed to exercise the rights of a regular board member including that of voting even when there is no tie to break. A temporary presiding officer who merely steps into the shoes of the presiding officer could not have greater power than that possessed by the latter who can vote only in case of a tie.
Lastly, for a resolution authorizing the governor to enter into a construction contract to be valid, the vote of the majority of all members of the Sanggunian, and not only of those present during the session, is required in accordance with Section 468 of the LGC in relation to Article 107 of its Implementing Rules.
Even including the vote of Board Member Osorio, who was then the Acting Presiding Officer, Resolution No. 07 is still invalid. Applying Section 468 of the LGC and Article 107 of its Implementing Rules, there being fourteen members in the Sanggunian, the approval of eight members is required to authorize the governor to enter into the Contract with the Allado Company since it involves the creation of liability for payment on the part of the local government unit.
WHEREFORE, the petition is hereby GRANTED. The assailed Order of the Regional Trial Court of Nabunturan, Compostela Valley dated April 24, 2001 is hereby reversed and set aside.
Resolution Nos. 05 and 07 of the Sangguniang Panlalawigan of Compostela Valley approved on February 26, 2001 declaring the entire Province of Compostela Valley under a state of calamity and granting authority to the Provincial Governor to enter into a general construction agreement, respectively, are hereby declared null and void.
Vitug, (Chairman), Sandoval-Gutierrez, and Corona, JJ., concur.
 Rollo at 43.
 Id. at 6.
 Id. at 45-46. In attendance were:
Rolando Osorio Regular Member
Graciano Arafol Regular Member
Belinda Apawan Regular Member
Armando Seras Regular Member
Ruwel Peter Gonzaga Regular Member
Armando Codilla PCL Federation Representative
Raul S. Basañes LNMB Federation Representative
 Rollo at 59-60; “A Resolution Declaring the Entire Province of Compostela Valley Under a State of Calamity.”
 Rollo at 62-63; “A Resolution Authorizing Hon. Jose R. Caballero, Governor, to Sign for and in Behalf of the Province, the Corrected/Amended General Construction Agreement, to be Executed Between the Allado Construction Company, Inc., and the Province of Compostela Valley, for the Construction of a Four-Storey Provincial Capitol Building Phase II.”
 Rollo at 109-110.
 Id. at 64. The Journal shows that the following members were present:
Hon. Reynaldo B. Navarro Vice Governor (Presiding Officer)
Hon. Manuel E. Zamora SP Member (late)
Hon. Manolo T. Yanong SP Member
Hon. Rolando L. Osorio SP Member (late)
Hon. Reynaldo Q. Castillo SP Member
Hon. William S. Andres SP Member (late)
Hon. Graciano C. Arafol SP Member
Hon. Belinda G. Apawan SP Member (late)
Hon. Armando L. Seras SP Member
Hon. Ruwel Peter S. Gonzaga SP Member (late)
Hon. Armando C. Codilla SP Member
Hon. Raul S. Basañes SP Member
Hon. Ramil L. Gentugaya SP Member
Hon. Gemma Theresa M. Sotto SP Member
 Rollo at 31-123.
 Id. at 34-36.
 Id. at 57.
 Id. at 58.
 Id. at 61.
 Per certification of the Sanggunian Secretary, the following were present:
Hon. Rolando Osorio
Hon. Graciano C. Arafol, Jr.
Hon. Belinda G. Apawan
Hon. Armando L. Seras
Hon. Ruwel Peter S. Gonzaga
Hon. Armando C. Codilla
Hon. Raul S. Basaňes
It appears from the minutes that Vice Governor Reynaldo B. Navarro left the session before adjournment and Rolando Osorio was appointed to preside in the session. Manolo T. Yanong, Reynaldo Q. Castillo and Ramil L. Gentugaya who were present at the commencement of the session were not present when the actions were taken. Manuel E. Zamora and William S. Andres, who arrived late for the session, were likewise not present.
 Rollo at 112-113.
 Vice Governor Reynaldo B. Navarro relinquished the chair to Board Member Osorio to attend to official business.
 Rollo at 120-121.
 Section 52. Sessions. – x x x
x x x
(d) In the case of special sessions of the sanggunian, a written notice to the members shall be served personally at the member’s usual place of residence at least twenty-four (24) hours before the special session is held.
Unless otherwise concurred in by two-thirds (2/3) vote of the sanggunian members present, there being a quorum, no other matters may be considered at a special session except those stated in the notice.
x x x
 Republic Act 7160.
 Rollo at 128-131.
 Id. at 152-158.
 (“Prohibiting Courts from Issuing Restraining Orders or Preliminary Injunctions in Cases Involving Infrastructure and Natural Resource Development Projects of, and Public Utilities Operated by, the Government.”
 Rollo at 156-157.
 83 Phil 17 (1949).
 Rollo at 13.
 Id. at 164, 169-170.
 Id. at 164, 170-172.
 277 SCRA 268 (1997).
 34 Phil. 729 (1916).
 Id. at 733.
 Rollo at 64.
 Id. at 112-113, 120-121. Those who voted were Armando C. Codilla, Raul S. Basañes, Armando L. Seras, Ruwel Peter S. Gonzaga, Belinda G. Apawan and Graciano C. Arafol with Rolando Osorio as presiding officer.
 Rollo at 59, 62, 106-107.
 Id. at 104-105.
 Id. at 169.
 213 SCRA 516 (1992).
 Id. at 523-524.
 Rollo at 171.
 Id. at 21-22.
 Rollo at 19.
 Section 2, Rule 129, Rules of Court.
 Salamera v. Sandiganbayan, 303 SCRA 217, 229 (1999).
 The 1987 Philippine Constitution contains a similarly worded provision in Article VI, Section 16 (2).
 Javellana v. Tayo, 6 SCRA 1042, 1048-1049 (1962).
 Perez v. Dela Cruz, 27 SCRA 587, 603 (1969).
 Rollo at 166.
 A.Q. Pimentel, Jr., The Local Government Code of 1991 The Key to National Development 162 (1993). The proponent of the Local Government Code explains:
This section was meant to cover situations when less than all the members of the Sanggunian have been elected and qualified. For example, it can happen that out of ten members of a Sanggunian, only five have been elected and qualified, that is, they have been proclaimed and have assumed office. The other five members may be facing electoral protests of some kind as the others have not, therefore, been elected and qualified.
 Section 53 (b), Local Government Code.
Section 53. Quorum – x x x
(b) Where there is no quorum, x x x a majority of the members present may adjourned from day to day and may compel the immediate attendance of any member absent without justifiable cause by designating a member of the sanggunian, to be assisted by a member or members of the police force assigned in the territorial jurisdiction of the local government unit concerned, to arrest the absent member and present him at the session.
 Rollo at 112-113.
 Article 107. Ordinances and Resolutions. – The following rules shall govern the enactment of ordinances and resolutions:
x x x
(g) No ordinance of resolution passed by the sanggunian in a regular or special session duly called for the purpose shall be valid unless approved by a majority of the members present, there being quorum. x x x (Italics in the original. Emphasis supplied)
 Rollo at 120-121.
 Vide Perez v. Dela Cruz, 27 SCRA 587 (1969).
 Ibid. at 602.
 Section 468. Powers, Duties, Functions and Compensation. – (a) x x x
(iii) Subject to the provisions of Book II of this Code and applicable laws and upon majority vote of all members of the sangguniang panlalawigan, authorize the provincial governor to negotiate and contract loans and other forms of indebtedness; (Italics in the original. Emphases supplied)
x x x
 Article 107. Ordinances and Resolutions. – The following rules shall govern the enactment of ordinances and resolutions:
x x x
(g) x x x Any ordinance or resolution authorizing or directing the payment of money or creating liability, shall require the affirmative vote of a majority of all the sanggunian members for its passage. (Italics in the original. Emphasis supplied)
x x x