EN BANC

 

TOMAS R. OSMEÑA, in his            G.R. No. 188818

personal capacity and in his

capacity as City Mayor of Cebu                    Present:

City,

                             Petitioner,                      CORONA, C.J.,

                                                                   CARPIO,

                                                                   CARPIO-MORALES,

                                                                   VELASCO, JR.,

                                                                   NACHURA,

                                                                   LEONARDO-DE CASTRO,

                                                                   BRION,

          - versus -                                           PERALTA,

                                                                   BERSAMIN,

                                                                   *DEL CASTILLO,

                                                                   ABAD,

                                                                   VILLARAMA, JR.,

                                                                   PEREZ,

                                                                   MENDOZA, and

                                                                   SERENO, JJ.

 

THE COMMISSION ON                  Promulgated:

AUDIT,

                             Respondent.                            May 31, 2011

x-----------------------------------------------------------------------------------------x

 

D E C I S I O N

 

BRION, J.:

 

Before the Court is the Petition for Certiorari[1] filed by Tomas R. Osmeña, former mayor of the City of Cebu, under Rule 64 of the Rules of Court.  The petition seeks the reversal of the May 6, 2008 Decision[2] and the June 8, 2009 Resolution[3] of the respondent Commission on Audit (COA), which disallowed the damages, attorney’s fees and litigation expenses awarded in favor of two construction companies in the collection cases filed against the City of Cebu, and made these charges the personal liability of Osmeña for his failure to comply with the legal requirements for the disbursement of public funds. 

 

BACKGROUND FACTS

 

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

 

While the construction was being undertaken, Osmeña issued a total of 20 Change/Extra Work Orders to WTCI, amounting to P35,418,142.42 (about 83% of the original contract price), and to DCDC, amounting to P15,744,525.24 (about 31% of the original contract price).  These Change/Extra Work Orders were not covered by any Supplemental Agreement, nor was there a prior authorization from the Sanggunian.  Nevertheless, the work proceeded on account of the “extreme urgency and need to have a suitable venue for the Palaro.”[4]  The Palaro was successfully held at the Cebu City Sports Complex during the first six months of 1994.  

 

Thereafter, WTCI and DCDC demanded payment for the extra work they performed in the construction and renovation of the sports complex.   A Sanggunian member, Councilor Augustus Young, sponsored a resolution authorizing Osmeña to execute the supplemental agreements with WTCI and DCDC to cover the extra work performed, but the other Sanggunian members refused to pass the resolution.  Thus, the extra work completed by WTCI and DCDC was not covered by the necessary appropriation to effect payment, prompting  them to file two separate collection cases before the Regional Trial Court (RTC) of Cebu City (Civil Case Nos. CEB-17004[5] and CEB-17155[6]).  The RTC found the claims meritorious, and ordered the City to pay for the extra work performed. The RTC likewise awarded damages, litigation expenses and attorney’s fees in the amount of P2,514,255.40 to WTCI[7] and P102,015.00 to DCDC.[8]   The decisions in favor of WTCI and DCDC were affirmed on appeal, subject to certain modifications as to the amounts due, and have become final.  To satisfy the judgment debts, the Sanggunian finally passed the required appropriation ordinances. 

 

During post-audit, the City Auditor issued two notices disallowing the payment of litigation expenses, damages, and attorney’s fees to WTCI and DCDC.[9]  The City Auditor held Osmeña, the members of the Sanggunian, and the City Administrator liable for the P2,514,255.40 and P102,015.00 awarded to WTCI and DCDC, respectively, as damages, attorney’s fees, and interest charges. These amounts, the City Auditor concluded, were unnecessary expenses for which the public officers should be held liable in their personal capacities pursuant to the law.

 

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

 

The COA Regional Office’s Decision was sustained by the COA’s National Director for Legal and Adjudication (Local Sector) in a Decision dated January 16, 2004.[11]  Osmeña filed an appeal against this Decision. 

 

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

 

The COA denied Osmeña’s motion via a Resolution dated June 8, 2009.[13]  The Office of the Mayor of Cebu City received the June 8, 2009 Resolution of the COA on June 29, 2009.  A day before, however, Osmeña left for the United States of America for his check-up after his cancer surgery in April 2009 and returned to his office only on July 15, 2009.  Thus, it was only on July 27, 2009 that Osmeña filed the present petition for certiorari under Rule 64 to assail the COA’s Decision of May 6, 2008 and Resolution of June 8, 2009. 

 

THE PETITION

 

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

 

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

 

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

 

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

 

THE COURT’S RULING

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

 

The Pre-Qualification, Bids and Awards Committee (PBAC), upon the recommendation of the Technical Committee and after a careful deliberation, approved the change and extra work orders.  It bears pointing out that two members of the PBAC were members of the Sanggunian as well – Rodolfo Cabrera (Chairman, Committee on Finance) and Ronald Cuenco (Minority Floor Leader).  A COA representative was also present during the deliberations of the PBAC.  None of these officials voiced any objection to the lack of a prior authorization from the Sanggunian or a supplemental agreement. The RTC Decision in fact mentioned that the Project Post Completion Report and Acceptance was approved by an authorized representative of the City of Cebu on September 21, 1994.[23] “[a]s the projects had been completed, accepted and used by the [City of Cebu],” the RTC ruled that there is “no necessity of [executing] a supplemental agreement.”[24]  Indeed, as we declared in Mario R. Melchor v. COA,[25] a supplemental agreement to cover change or extra work orders is not always mandatory, since the law adopts the permissive word “may.”  Despite its initial refusal, the Sanggunian was eventually compelled to enact the appropriation ordinance in order to satisfy the RTC judgments.  Belated as it may be, the enactment of the appropriation ordinance, nonetheless, constitutes as sufficient compliance with the requirements of the law. It serves as a confirmatory act signifying the Sanggunian’s ratification of all the change and extra work orders issued by Osmeña. In National Power Corporation (NPC) v. Hon. Rose Marie Alonzo-Legasto, etc., et al.,[26] the Court considered the compromise agreement between the NPC and the construction company as a ratification of the extra work performed, without prior approval from the NPC’s Board of Directors.

 

As in Melchor,[27] we find it “unjust to order the petitioner to shoulder the expenditure when the government had already received and accepted benefits from the utilization of the [sports complex],” especially considering that the City incurred no substantial loss in paying for the additional work and the damages awarded.  Apparently, the City placed in a time deposit the entire funds allotted for the construction and renovation of the sports complex.  The interest that the deposits earned amounted to P12,835,683.15, more than enough to cover the damages awarded to WTCI (P2,514,255.40) and the DCDC (P102,015.00).  There was “no showing that [the] petitioner was ill-motivated, or that [the petitioner] had personally profited or sought to profit from the transactions, or that the disbursements have been made for personal or selfish ends.”[28] All in all, the circumstances showed that Osmeña issued the change and extra work orders for the City’s successful hosting of the Palaro, and not for any other “nefarious endeavour.”[29] 

 

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

 

SO ORDERED.

 

 

 

 

 

ARTURO D. BRION

Associate Justice

 

 

 

 

WE  CONCUR:

 

 

 

RENATO C. CORONA

Chief Justice

 

 

                                                                

 

          ANTONIO T. CARPIO                   CONCHITA CARPIO MORALES

                 Associate Justice                                Associate Justice

 

 

 

 

 

PRESBITERO J. VELASCO, JR.   ANTONIO EDUARDO B. NACHURA

              Associate Justice                                       Associate Justice

 

 

 

 

TERESITA J. LEONARDO-DE CASTRO            DIOSDADO M. PERALTA     

                    Associate Justice                                             Associate Justice

 

 

 

        LUCAS P. BERSAMIN                     MARIANO C. DEL CASTILLO

              Associate Justice                                          Associate Justice

 

 

 

                                                                               (On Official Leave)

          ROBERTO A. ABAD                     MARTIN S. VILLARAMA, JR.

                       Associate Justice                                         Associate Justice

 

 

 

 

      JOSE PORTUGAL PEREZ            JOSE CATRAL MENDOZA

                          Associate Justice                                     Associate Justice

 

 

 

MARIA LOURDES P.A. SERENO

Associate Justice

 

CERTIFICATION

 

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

 

 

                                                                   RENATO C. CORONA

                                                                             Chief Justice

 

 



* On Official Leave.

[1] Rollo, pp. 4-38.

[2] Id. at 40-46.

[3] Id. at 64-68.

[4] Rollo, p. 12.

[5] Id. at 99-128.

[6] Id. at 129-135

[7] Id. at 136-140.

[8] Id. at 141-142.

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

[10] Rollo, pp. 143-150.

[11] Id. at 151-156.

[12] Supra note 2.

[13] Supra note 3.

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

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

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

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

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

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

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

[20] Rollo, p. 153.

[21] Id. at 148.

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

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

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

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

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

[27] Supra note 25, at 713.

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

[29] Ibid.