Constantino v. Desierto

NARVASA, J.:

In the special civil action of certiorari at bar Mayor Felipe K. Constantino of Malungon, Sarangani Province, seeks invalidation of the Resolution of the Ombudsman dated October 22, 1996, finding him guilty of grave misconduct prejudicial to the best interest of the service, and/or gross neglect of duty, and on that account dismissing him from the service. On February 22, 1996, the Sangguniang Bayan of Malungon, Sarangani Province, adopted and issued Resolution No. 211 which - after declaring in its "Whereas" clauses inter alia that - 1) it was the intention of the .

. Government of Malungon to "lease/purchase one (1) fleet of heavy equipment"2 composed of seven (7) specifically described units; 2) due to the failure of two public biddings, the Municipal Mayor would be authorized "to enter into a negotiated contract (for said lease/purchase) . .

in behalf of the Municipal Government . . ;"

3) the lessor/seller should assure that the heavy equipment is "free from defects in workmanship within the specified warranty period under normal use," with obligation to "repair or replace any defective parts free of charge subject to the terms and conditions stipulated in the contract;" 4) the contract "must be clear and explicit, acceptable to both parties, and be concurred by the Sangguniang Bayan of .

. Malungon . .

before implementation;" and 5) the heavy equipment shall, before delivery, be inspected and tested by a special committee chosen by the Mayor - authorized Mayor Constantino "to enter into a negotiated contract representing the Municipality . .

(with) any company dealing with heavy equipment," said contract to be "signed by PBAC members." The resolution, however, contained no parameters as to rate of rental, period of lease, purchase price.

The Sangguniang Bayan Members who voted for the resolution were: Vice-Mayor Primitiva L. Espinosa, and Councilors Rafael J. Suson, Sr. (Presiding Officer), Benjamin M. Guilley, Nemesio P. Liray, Nonito V. Nuñez, Leo G. Ingay, Cesar B. Nallus, Jr., Benjamin C. Asgapo, and Jannette S. Constantino. Accordingly, on February 28, 1996 in Davao City, Mayor Constantino entered into an agreement with a firm called the Norlovanian Corporation,3 for the lease by the municipality from the latter of seven (7) units of heavy equipment of the types specified in the aforesaid Resolution, to wit:4 (a) one (1) unit payloader; (b) one (1) unit grader; (c) one (1) unit road roller; (d) two (2) units six-wheeler dump trucks; and (e) two (2) units ten-wheeler dump trucks. At the same time, and with the Mayor's "conforme, "

the corporation executed a deed of "Undertaking" binding itself to convey ownership of the heavy equipment under lease "unto the Lessee at the end of the term of said agreement after the Lessee has faithfully complied with the terms and conditions thereof," and to execute "the necessary documents to transfer the ownership .

. (thereof)."5 The Lease Agreement was a printed pre-prepared one, the names of the parties and the notarial acknowledgment having merely been typed in additionally. Nothing was stated in the signed contract about the term of the lease or the amount of the rental.

Neither did the second document, the "Undertaking," set forth the term of the lease, the rental rate of the equipment, or the value thereof. Delivery of all the seven (7) pieces of heavy equipment was made to the municipality on March 4, 1996, at which time a document of "Delivery and Acceptance"6 was executed over the signatures of Mayor Constantino and the President of the lessor company.

The instrument contained: (a) a list of the equipment, (b) an averment that the "LESSEE (the town of Malungon) had inspected and accepted the same which had "been found to be in good condition in accordance with the terms and conditions of the Lease Agreement," and (c) an attestation - reading "EQUIPMENT INSPECTED BY" - signed by four (4) Municipal Kagawads: Benjamin M. Guilley, Nonito V. Nuñez, Ceasar B. Nallos and Nemesio P. Liray, as well as by the Municipal Engineer and the Municipal Treasurer.

Thereafter, and on the strength of another resolution (No. 38) "unanimously approved" on April 18, 1996 by the Sangguniang Bayan of Malungon - "requesting the Honorable Municipal Mayor, Felipe K, Constantino, to operate the newly acquired heavy equipment of the Municipality of Malungon leased/purchased from the Norlovanian Corporation"7 - the mayor directed that the heavy equipment be operated and used in various projects. The Sangguniang Bayan Members who voted for the resolution were: Vice-Mayor Primitiva L. Espinosa, and Councilors Rafael J. Suson, Sr., Benjamin M. Guilley, Nemesio P. Liray, Pablo V. Octavio, Nonito V. Nuñez, Leo G. Ingay, Cesar B. Nallos, Jr., Benjamin C. Asgapo, and Wilfredo P. Espinosa, ABC.

However, operation of the equipment came to a halt barely two months later; and this, because of a third resolution (No. 47) of the Sangguniang Bayan adopted on June 6, 1996,8 "stopping all forms of unauthorized payment/expenditures relative to the illegally acquired pool of heavy equipment by the Municipality of Malungon, Sarangani Province." The Resolution was grounded on the following stated premises: 1) a 1995 Resolution "adopting Appropriation Ordinance No. 11 approving General Budget of 1996;" MPC Resolution No. 2 series of 1995 in relation to SB Resolution No. 198, series of 1995 "provided the amount of TWO MILLION TWO HUNDRED THOUSAND PESOS (P2,200,00000) for the loan amortization of the purchase of heavy equipment for five (5) years"

but had "not been realigned . . re-programmed and appropriated for lease;"

and 2) the "pool of heavy equipment . . acquired was inefficient, ineffective and inoperative per ocular inspection, investigation and survey conducted by the Committee on Infrastructure of the Sangguniang Bayan of Malungon and there is no authorized rental payment/expenditures and approved budget by the Sangguniang Bayan intended for lease of such heavy equipment.

The minutes of the Sangguniang Bayan of Malungon of the session of June 6, 1996 show that of the nine (9) Sangguniang Members present, four (4) voted "for the passage of said resolution, namely Councilors Octavio, Espinosa, Asgapo and Ingay, and there abstain(ed:) namely Councilor Guilley, Nollon, Nuñez . . ; (and) Councilor Liray .

. (was) not around during the violation . .

(being) on privilege motion which was recognized by the Chair" (sic). Vice-Mayor Primitiva L. Espinosa, identified as "Acting Mayor,"

was recorded as "ABSENT"9 It appears that earlier - on April 23, 1996, five (5) days after Mayor Constantino was requested by the Sangguniang Bayan to start using the heavy equipment as above stated - there were filed with the Deputy Ombudsman for Mindanao in Davao City,10 a "Letter-Complaint"11 and a "Joint Affidavit,"12 accusing the Mayor and the president of the lessor company, Norberto Lindong,13 of a "Violation of Section 3 [e] and [g] of R.A. No. 3019 otherwise known as the Anti-Graft and Corrupt Practices Act "- docketed as Case No. OMB-MIN-ADM-96-0179 - and of "Grave Misconduct ;Conduct Prejudicial to the Interest of the Service ;and Gross Neglect of Duty " - docketed as Case No. OMB-MIN-ADM-96-060. The letter-complaint was signed by Vice-Mayor Primitiva L. Espinosa, and to it was appended a CERTIFICATION signed by said Vice-Mayor and three (3) of the Sangguniang Bayan Members who, together with the Vice-Mayor had approved the first two (2) Resolutions above mentioned, namely: Councilors Rafael J. Suson, Sr., Leo G. Ingay, and Benjamin C. Asgapo.

Two other councilors, Wilfredo P. Espinosa, Pablo V. Octavio, who had approved the Resolution of April 18, 1996 - requesting Mayor Constantino to put into operation the heavy equipment delivered by Norlovanian Corporation - also signed the Certification. The Joint Affidavit alleged that: 1) Resolution No. 21 authorized Mayor Constantino "to purchase and acquire for the Municipality of Malungon heavy equipments to be paid within five (5) years at the yearly amortization of P2.2 million and for the ownership thereof to be consolidated and vested upon the municipality at the end of fifth year;" 2) the resolution also "provided that the Sangguniang Bayan shall concur in the contract to purchase that shall be entered into .

. ;" 3) contrary to the resolution, Mayor Constantino entered into "the lease agreement with the Norlovanian Corporation"

over specific heavy equipment which stipulated a term of "six (6) years," rental at the rate of P257,111.11 per month;" and a "20% Guaranty Deposit of P1,780,000.00"

to be made by the Municipality." 4) the lease agreement contained no "Purchase Option" in favor of the Municipality, and required the property to be returned to the lessor at the end of the lease; 5) pursuant to the agreement, the Municipality had already paid to the Norlovanian Corporation "the total sum of P2,177,070.91 for: a) 20% Guaranty Deposit P1,780,000.00 b) Rental from March 5 - April 5, 1996 257,111.11 c) partial rental covering April 5 to May 6, 1996 162,888.89 Withholding tax - 22,909.00