SECOND DIVISION

G.R. No. L-49760 October 23, 1979

PEDRO N. CALIMLIM, in his capacity as Regional Director, Region V, Bureau of Lands, petitioner,

vs.HON. ISIDORO A. VERA, as Presiding Judge, Branch 11, Court of First Instance of Camarines

Norte and JAIME R. ALEGRE, respondents.

CONCEPCION JR., J.:

This is a petition for certiorari, prohibition and mandamus with a prayer for the issuance of a writ of preliminary injunction.

On January 9, 1976, private respondent Jaime R. Alegre, filed with the Court of First Instance of Camarines Norte, Branch 11, presided over by respondent Judge, a petition for mandamus with damages against the petitioner Pedro Calimlim and Dionisio Belen, Regional Director and Administrative Officer of the Bureau of Lands, Region V, Legaspi City, respectively, 1 docketed therein as Civil Case No. 2728.

On September 8, 1978, respondent Judge rendered a decision, 2 the dispositive portion of which reads as follows:

WHEREFORE, judgment is hereby rendered:

(a) ordering the respondent Pedro Kalimlim to immediately make the assignment of petitioner as Hearing Officer I (R-48);

(b) ordering respondent Pedro Kalimlim to pay petitioner his unearned salary as Hearing Officer I (R-48) at the rate of P520.00 a month from December 2, 1975 up to the time he makes the assignment;

(c) ordering the respondent Pedro Kalimlim to pay petitioner moral damages in the amount of P5,000.00;

(d) ordering the respondent Pedro Kalimlim to pay petitioner exemplary damages in the amount of P5,000.00;

(e) ordering respondent Pedro Kalimlim to pay petitioner attorney's fees in the amount of P1,000.00;

(f) and to pay the costs.

SO ORDERED. 3

a copy of which was received by petitioner, thru counsel, on October 19, 1978.

Thereafter, on November 7, 1978, petitioner thru the Office of the Solicitor General, filed a notice of appeal 4signifying his intention to appeal to the Court of Appeals, and alleging that "having been sued in his official capacity, is exempt from filing the appeal bond."

On November 29, 1978, respondent Judge issued an order, 5 reading as follows:

The intended appeal by respondent Pedro Calimlim will not be given due course unless he files an appeal bond within the reglementary period. His being sued in his official capacity does not exempt him from the filing of an appeal bond. Only the government of the Republic of the Philippines is exempt from the filing of an appeal bond since under Section 1 of Rule 142, the government of the Republic of the Philippines is not liable for costs, unless the law so provides. (Government of the Philippines vs. The Judge of the Court of First Instance of Iloilo, 34 Phil. 157; Hongkong & Shanghai Banking Corp. vs. Rafferty 39 Phil. 145).

The Rules of Court does not exempt a public official sued in his official capacity from paying the required appeal bond especially as in this case where respondent was made liable for damages in his private capacity.

SO ORDERED.

The petitioner moved for reconsideration; 6 however, the same was denied by respondent Judge in his order dated January 3, 1979, with a warning that unless the appeal bond was filed within five (5) days from receipt of the order, he would issue a writ of execution as prayed by private respondent in his motion for execution. 7

Hence, the petitioner, thru the Solicitor General, interposed the present petition.

As prayed for by the petitioner, this Court issued on February 2, 1979 a temporary restraining order "effective as of this date and continue until otherwise ordered by the Court." 8

The only issue to be resolved in the instant case is whether or not the petitioner is legally required to file an appeal bond for the perfection of his appeal from the decision of respondent Judge in Civil Case No. 2728 - a special civil action for mandamus with damages.

The Solicitor General contends that since the petitioner was sued in Ms official capacity as Regional Director of the Bureau of Lands, then it was not required of him to file an appeal bond. Only the notice of appeal was necessary for the perfection of his appeal, and in support thereof cited the cases of Commissioner of Immigration vs. Romero 9 and Embroidery and Apparel Control and Inspection Board v. Cloribel. 10

The instant petition is devoid of merit. The exemption from the filing of an appeal bond applies only in cases where the action is brought by or against public officers impleaded merely as nominal representatives of the Government and sued purely in their official capacity, 11 as in the cases cited by the Solicitor General. However, when a public officer is sued not only in his official capacity but also in his personal capacity, he is not exempted from the filing of an appeal bond. Thus, in the case of Tabuena vs. Court of Appeals, 12 which is also a case of mandamus with damages, this Court rejected the claim of the respondent Director of the Forest Research Institute that he was exempted from the filing of an appeal bond in the following tenor:

We find this conclusion untenable. The general rule is that an appeal bond is required for the purpose of paying for the costs which the appellate court may award against the appellant (Sec. 5, Rule 41). As an exception, an appeal bond is not required of the Government when it is the unsuccessful party, because no costs are supposed to accrue against the Republic of the Philippines unless otherwise provided by law (Sec. 1, Rule 31). But exemption from the filing of bonds applies only where the action is brought by or against public officers impleaded merely as nominal representatives of the Government, and sued

purely in their official capacity (Tolentino vs. Carlos, 66 Phil. 140; Chan vs. Villanueva, et al., L-5420, April, 1952; Araneta, et al. vs. Gatmaitan, et al., L-8895 & L-9191, April 30, 1957; Hongkong & Shanghai Banking Corp. v. Rafferty 39 Phil. 145; Gov't. of PI vs. Judge of the, Court of First Instance, 34 Phil. 157).

It appears exceedingly clear in this case that respondent De la Cruz was sued not only in his official capacity as Director of the Forest Research Institute, but also in his personal capacity for having acted allegedly in manifest bad faith, "with the purpose of persecuting, discriminating against or committing injustice to the petitioner " (par 13, Ann. "F"); and accordingly, the judgment of the court of origin made him personally liable for damages in varying concepts. Whether or not the trial court committed error in awarding damages against De la Cruz in his personal capacity is immaterial here, this being more properly cognizable in an appeal from the main case. For our purpose, what is decisive is the dual character in which he was sued and the judgment rendered by the trial court. At least on principle, a public officer, by virtue of his office alone, is not immune from damages in his personal capacity arising from illegal acts done in bad faith (Art. 27, N.C.C. 43 Am. Jur., 86, 89-90). A different rule would sanction the use of public office as a tool of oppression.

In the case at bar, the herein petitioner — like. the respondent public officer in the Tabuena case — was sued not only in his official capacity as Regional Director, Region V of the Bureau of Lands, but also in his personal capacity. Thus, in his petition below, the private respondent Jaime Alegre alleged that the actuations of the petitioner Pedro Calimlim in depriving him of his right to assume his position as Hearing Officer I, subjected him Co ridicule, humiliation and embarrassment, and as such, he suffered moral and consequential damages, and, accordingly, the court a quo in its decision made him personally liable for damages. Consequently, We hold that petitioner Pedro Calimlim is not exempted from the filing of an appeal bond to perfect his appeal.

ACCORDINGLY, the instant petition should be, as it is hereby, DISMISSED, and the petitioner is hereby given a period of ten (10) days from entry of our judgment within which to file his appeal bond in Civil Case No. 2728, and thereafter, the court a quo shall conduct further proceedings in accordance with this opinion. The restraining order heretofore issued is hereby dissolved. No costs.

SO ORDERED.

Antonio, Aquino, Santos and Abad Santos JJ., concur.

EN BANC

G.R. No. L-16290 October 31, 1961

SANTOS TABUENA, ET AL., petitioners, vs.

THE HON. COURT OF APPEALS, ETC., ET AL., respondents.

David G. Nitafan for petitioners. Office of the Solicitor General for respondents.

REYES, J.B.L., J.:

In Civil Case No. B-152 of the Court of First Instance of Laguna, which was an action for mandamus with damages, judgment was rendered for petitioner Tabuena. The dispositive part of the decision reads:

WHEREFORE, judgment is hereby rendered as follows:

(1) The defendant Eugenio de la Cruz, in his official capacity as Director of the Forest Research Institute, is hereby commanded to appoint the plaintiff, Santos Tabuena, to the position of Administrative Assistant II in the Forest Products Research Institute with compensation at the rate of P2,760 per annum within five (5) days from notice of this decision;

(2) The defendant, in his personal capacity, is hereby sentenced to pay to the plaintiff the sum of P230 a month commencing from June 16, 1950 until he shall have been appointed and assumed office as Administrative Assistant II in the Forest Products Research Institute, plus the sum of P3,000 for moral damages and P1,000 for attorney's fees and expenses of litigation, aside from the costs of the suit.

Notice of appeal was filed by respondent De la Cruz, who therein manifested that no appeal bond was required to perfect his appeal. Thereupon, Tabuena filed two motions, both dated April 27, 1959, one, asking the trial court to require respondent De la Cruz to file an appeal bond; and the other, praying that, pending appeal, the trial court order execution of its judgment in so far as it commands the appointment of Tabuena to the position of Administrative Assistant II. After hearing further argument for and against the motions, the trial court issued two orders, both dated July 8, 1959, requiring respondent De la Cruz to file an appeal bond, and pending appeal directing respondent to comply with that portion of the judgment ordering the appointment of Tabuena to the position mentioned. A motion for reconsideration of the above orders was denied (Annex "Q").

De la Cruz then instituted certiorari proceedings in the Court of Appeals to annul the twin orders of July 8, 1959 and that of July 31, 1959 denying his motion for reconsideration. In due course, the Court of Appeals rendered its decision dated October 29, 1959, annulling both orders complained of and making permanent the preliminary injunction it had issued. Upon denial of his motion for reconsideration, Tabuena brought to this Court the instant petition for review by certiorari.

The Court of Appeals sustained the contention of De la Cruz that he was exempted from filing an appeal bond, as a public officer sued in his official capacity; and that consequently, with the filing of the notice of appeal, the trial court lost jurisdiction to order the immediate execution of its judgment.

We find this conclusion untenable. The general rule is that an appeal bond is required for the purpose of paying for costs which the appellate court may award against the appellant (Sec. 5, Rule 41). As an exception, an appeal bond is not required of the Government when it is the unsuccessful party, because no costs are supposed to accrue against the Republic of the Philippines unless otherwise provided by law (Sec. 1, Rule 31). But exemption from the filing of bonds applies only where the action is brought by or against public officers impleaded merely as nominal representatives of the Government, and sued purely in their official capacity (Tolentino v. Carlos, 66 Phil. 140; Chan v. Villanueva, et al., L-5420, April, 1952; Araneta, et al. vs. Gatmaitan, et al., L-8895 & L-9191, April 30, 1957; Hongkong and Shanghai Banking Corp. v. Rafferty, 39 Phil. 145; Gov't. of PI v. Judge of the Court of First Instance, 34 Phil. 157).

It appears exceedingly clear in this case that respondent De la Cruz was sued not only in his official capacity as Director of the Forest Research Institute, but also in his personal capacity for having acted allegedly in manifest bad faith, "with the purpose of persecuting, discriminating against or committing injustice to the petitioner" (par. 13, Ann. "F"); and accordingly, the judgment of the court of origin made him personally liable for damages in varying concepts. Whether or not the trial court committed error in awarding damages against De la Cruz in his personal capacity is immaterial here, this being more properly cognizable in an appeal from the main case. For our purpose, what is decisive is the dual character in which he was sued and the judgment rendered by the trial court. At least on principle, a public officer, by virtue of his office alone, is not immune from damages in his personal capacity arising from illegal acts done in bad faith (Art. 27, N.C.C.; 43 Am. Jur., 86, 89-90). A different rule would sanction the use of public office as a tool of oppression.

Whether the trial court had sufficient reasons for executing its decision is quite another matter. Under Section 2, Rule 39 of the Rules of Court, execution may issue before the expiration of the time to appeal, in the discretion of the court. "Upon good reasons to be stated in a special order". Among its reasons for ordering the immediate appointment of Tabuena, the trial court took into account his length of service in the government, the delay that might be entailed in the final disposition of the case, and the consequent prejudice to Tabuena and his family in the meantime. These circumstances may call for sympathy, but hardly warrant the immediate execution ordered. As a solemn trust, occupancy of a public office cannot accommodate the vagaries of personal fortunes. Execution pending appeal must be for weighty reasons in all cases. Said principle is underscored in case public office is involved.

Moreover, the following consideration are pertinent —

If the judgment is executed and, on appeal, the same is reversed, although there are provisions forrestitution, oftentimes, damages may arise which cannot be fully compensated. Accordingly, execution should be granted only when these considerations are clearly outweighed by superior circumstances demanding urgency . . . . (Aguilos v. Barrios, 72 Phil. 285; Ledesma, et al. vs. Teodoro, et al., L-9174, January 25, 1956, (Emphasis supplied).

Lastly, if the respondents are reinstated and paid their back salaries from city funds, and then the appeal in the main case is decided against them, the city stands to suffer irreparable injury because it is hardly to be expected that the said policemen shall be able to make restitution. (City of Bacolod, et al. v. Hon. Enriquez, et al., L-9775, May 29, 1957.)

That respondent De la Cruz might retire before the case is finally disposed of cannot render the judgment ineffective because then, his successor in office may be substituted as respondent (Section 18, Rule 3). On the other hand, unless the appeal is unquestionably dilatory, the allusion made by the trial court that the appeal being taken by respondent is only for the

purpose of delay (Annex "Q") cannot be a valid reason. This assumption prematurely judges the merits of the appeal (City of Bacolod vs. Enriquez, et al., supra.). Whether or not Tabuena is entitled to the office to which he was ordered appointed by the trial court is precisely the very core of the main case.

At any rate, the continued vacancy of the position of Administrative Assistant II in the Forest Products Research Institute does not appear so disruptive of public functions as to impel a provisional appointment of one whose rights to said office have yet to be finally resolved.

WHEREFORE, the decision of the Court of Appeals setting aside the trial court's execution of its judgment pending appeal is affirmed; the orders of the trial court dated July 8, 1959 and July 31, 1959, in so far only as they require respondent to file an appeal bond in Civil Case No. E-152, are reinstated; and respondent De la Cruz is hereby given a period of ten (10) days from entry of our judgment within which to file his appeal bond in said Civil Case B-152.

The records of this case are hereby ordered remanded to the court of origin for further proceedings in accordance with this opinion. No costs.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Paredes and De Leon, JJ., concur. Barrera, J., took no part.

THIRD DIVISION

G.R. No. 141309 June 19, 2007

LIWAYWAY VINZONS-CHATO, petitioner, vs.

FORTUNE TOBACCO CORPORATION, respondent.

D E C I S I O N

YNARES-SANTIAGO, J.:

Petitioner assails the May 7, 1999 Decision1 of the Court of Appeals in CA-G.R. SP No. 47167, which affirmed the September 29, 1997 Order2 of the Regional Trial Court (RTC) of Marikina, Branch 272, in Civil Case No. 97-341-MK, denying petitioner’s motion to dismiss. The complaint filed by respondent sought to recover damages for the alleged violation of its constitutional rights arising from petitioner’s issuance of Revenue Memorandum Circular No. 37-93 (RMC 37-93), which the Court declared invalid in Commissioner of Internal Revenue v. Court of Appeals.3

Petitioner Liwayway Vinzons-Chato was then the Commissioner of Internal Revenue while respondent Fortune Tobacco Corporation is an entity engaged in the manufacture of different brands of cigarettes, among which are "Champion," "Hope," and "More" cigarettes.

On June 10, 1993, the legislature enacted Republic Act No. 7654 (RA 7654), which took effect on July 3, 1993. Prior to its effectivity, cigarette brands ‘Champion," "Hope," and "More" were considered local brands subjected to an ad valorem tax at the rate of 20-45%. However, on July 1, 1993, or two days before RA 7654 took effect, petitioner issued RMC 37-93 reclassifying "Champion," "Hope," and "More" as locally manufactured cigarettes bearing a foreign brand subject to the 55% ad   valorem tax.4 RMC 37-93 in effect subjected "Hope," "More," and "Champion" cigarettes to the provisions of RA 7654, specifically, to Sec. 142,5 (c)(1) on locally manufactured cigarettes which are currently classified and taxed at 55%, and which imposes an ad valorem tax of "55% provided that the minimum tax shall not be less than Five Pesos (P5.00) per pack."6

On July 2, 1993, at about 5:50 p.m., BIR Deputy Commissioner Victor A. Deoferio, Jr. sent via telefax a copy of RMC 37-93 to Fortune Tobacco but it was addressed to no one in particular. On July 15, 1993, Fortune Tobacco received, by ordinary mail, a certified xerox copy of RMC 37-93. On July 20, 1993, respondent filed a motion for reconsideration requesting the recall of RMC 37-93, but was denied in a letter dated July 30, 1993.7 The same letter assessed respondent for ad valorem tax deficiency amounting to P9,598,334.00 (computed on the basis of RMC 37-93) and demanded payment within 10 days from receipt thereof.8 On August 3, 1993, respondent filed a petition for review with the Court of Tax Appeals (CTA), which on September 30, 1993, issued an injunction enjoining the implementation of RMC 37-93.9 In its decision dated August 10, 1994, the CTA ruled that RMC 37-93 is defective, invalid, and unenforceable and further enjoined petitioner from collecting the deficiency tax assessment issued pursuant to RMC No. 37-93. This ruling was affirmed by the Court of Appeals, and finally by this Court in Commissioner of Internal Revenue v. Court of Appeals.10 It was held, among others, that RMC 37-93, has fallen short of the requirements for a valid administrative issuance.

On April 10, 1997, respondent filed before the RTC a complaint11 for damages against petitioner in her private capacity. Respondent contended that the latter should be held liable for damages under Article 32 of the Civil Code considering that the issuance of RMC 37-93 violated its constitutional right against deprivation of property without due process of law and the right to equal protection of the laws.

Petitioner filed a motion to dismiss12 contending that: (1) respondent has no cause of action against her because she issued RMC 37-93 in the performance of her official function and within the scope of her authority. She claimed that she acted merely as an agent of the Republic and therefore the latter is the one responsible for her acts; (2) the complaint states no cause of action for lack of allegation of malice or bad faith; and (3) the certification against forum shopping was signed by respondent’s counsel in violation of the rule that it is the plaintiff or the principal party who should sign the same.

On September 29, 1997, the RTC denied petitioner’s motion to dismiss holding that to rule on the allegations of petitioner would be to prematurely decide the merits of the case without allowing the parties to present evidence. It further held that the defect in the certification against forum shopping was cured by respondent’s submission of the corporate secretary’s certificate authorizing its counsel to execute the certification against forum shopping. The dispositive portion thereof, states:

WHEREFORE, foregoing premises considered, the motion to dismiss filed by the defendant Liwayway Vinzons-Chato and the motion to strike out and expunge from the record the said motion to dismiss filed by plaintiff Fortune Tobacco Corporation are both denied on the grounds aforecited. The defendant is ordered to file her answer to the complaint within ten (10) days from receipt of this Order.

SO ORDERED.13

The case was elevated to the Court of Appeals via a petition for certiorari under Rule 65. However, same was dismissed on the ground that under Article 32 of the Civil Code, liability may arise even if the defendant did not act with malice or bad faith. The appellate court ratiocinated that Section 38, Book I of the Administrative Code is the general law on the civil liability of public officers while Article 32 of the Civil Code is the special law that governs the instant case. Consequently, malice or bad faith need not be alleged in the complaint for damages. It also sustained the ruling of the RTC that the defect of the certification against forum shopping was cured by the submission of the corporate secretary’s certificate giving authority to its counsel to execute the same.

Undaunted, petitioner filed the instant recourse contending that the suit is grounded on her acts done in the performance of her functions as a public officer, hence, it is Section 38, Book I of the Administrative Code which should be applied. Under this provision, liability will attach only when there is a clear showing of bad faith, malice, or gross negligence. She further averred that the Civil Code, specifically, Article 32 which allows recovery of damages for violation of constitutional rights, is a general law on the liability of public officers; while Section 38, Book I of the Administrative Code is a special law on the superior public officers’ liability, such that, if the complaint, as in the instant case, does not allege bad faith, malice, or gross negligence, the same is dismissible for failure to state a cause of action. As to the defect of the certification against forum shopping, she urged the Court to strictly construe the rules and to dismiss the complaint.

Conversely, respondent argued that Section 38 which treats in general the public officers’ "acts" from which civil liability may arise, is a general law; while Article 32 which deals specifically with the public officers’ violation of constitutional rights, is a special provision which should determine whether the complaint states a cause of action or not. Citing the case of Lim v. Ponce de Leon,14 respondent alleged that under Article 32 of the Civil Code, it is enough that there was a violation of the constitutional rights of the plaintiff and it is not required that said public officer should have acted with malice or in bad faith. Hence, it concluded that even granting that the complaint failed to allege bad faith or malice, the motion to dismiss for failure to state a cause of action should be denied inasmuch as bad faith or malice are not necessary to hold petitioner liable.

The issues for resolution are as follows:

(1) May a public officer be validly sued in his/her private capacity for acts done in connection with the discharge of the functions of his/her office?

(2) Which as between Article 32 of the Civil Code and Section 38, Book I of the Administrative Code should govern in determining whether the instant complaint states a cause of action?

(3) Should the complaint be dismissed for failure to comply with the rule on certification against forum shopping?

(4) May petitioner be held liable for damages?

On the first issue, the general rule is that a public officer is not liable for damages which a person may suffer arising from the just performance of his official duties and within the scope of his assigned tasks.15 An officer who acts within his authority to administer the affairs of the office which he/she heads is not liable for damages that may have been caused to another, as it would virtually be a charge against the Republic, which is not amenable to judgment for monetary claims without its consent.16 However, a public officer is by law not immune from damages in his/her personal capacity for acts done in bad faith which, being outside the scope of his authority, are no longer protected by the mantle of immunity for official actions.17

Specifically, under Section 38, Book I of the Administrative Code, civil liability may arise where there is bad faith, malice, or gross negligence on the part of a superior public officer. And, under Section 39 of the same Book, civil liability may arise where the subordinate public officer’s act is characterized by willfulness or negligence. Thus –

Sec. 38. Liability of Superior Officers. – (1) A public officer shall not be civilly liable for acts done in the performance of his official duties, unless there is a clear showing of bad faith, malice or gross negligence.

x x x x

Section 39. Liability of Subordinate Officers. – No subordinate officer or employee shall be civilly liable for acts done by him in good faith in the performance of his duties. However, he shall be liable for willful or negligent acts done by him which are contrary to law, morals, public policy and good customs even if he acts under orders or instructions of his superior.

In addition, the Court held in Cojuangco, Jr. v. Court of Appeals,18 that a public officer who directly or indirectly violates the constitutional rights of another, may be validly sued for damages under Article 32 of the Civil Code even if his acts were not so tainted with malice or bad faith.

Thus, the rule in this jurisdiction is that a public officer may be validly sued in his/her private capacity for acts done in the course of the performance of the functions of the office, where said public officer: (1) acted with malice, bad faith, or negligence; or (2) where the public officer violated a constitutional right of the plaintiff.

Anent the second issue, we hold that the complaint filed by respondent stated a cause of action and that the decisive provision thereon is Article 32 of the Civil Code.

A general statute is one which embraces a class of subjects or places and does not omit any subject or place naturally belonging to such class. A special statute, as the term is generally understood, is one which relates to particular persons or things of a class or to a particular portion or section of the state only.19

A general law and a special law on the same subject are statutes in pari materia and should, accordingly, be read together and harmonized, if possible, with a view to giving effect to both. The rule is that where there are two acts, one of which is special and particular and the other general which, if standing alone, would include the same matter and thus conflict with the special act, the special law must prevail since it evinces the legislative intent more clearly than that of a general statute and must not be taken as intended to affect the more particular and specific provisions of the earlier act, unless it is absolutely necessary so to construe it in order to give its words any meaning at all.20

The circumstance that the special law is passed before or after the general act does not change the principle. Where the special law is later, it will be regarded as an exception to, or a qualification of, the prior general act; and where the general act is later, the special statute will be construed as remaining an exception to its terms, unless repealed expressly or by necessary implication.21

Thus, in City of Manila v. Teotico,22 the Court held that Article 2189 of the Civil Code which holds provinces, cities, and municipalities civilly liable for death or injuries by reason of defective conditions of roads and other public works, is a special provision and should prevail over Section 4 of Republic Act No. 409, the Charter of Manila, in determining the liability for defective street conditions. Under said Charter, the city shall not be held for damages or injuries arising from the failure of the local officials to enforce the provision of the charter, law, or ordinance, or from negligence while enforcing or attempting to enforce the same. As explained by the Court:

Manila maintains that the former provision should prevail over the latter, because Republic Act 409 is a special law, intended exclusively for the City of Manila, whereas the Civil Code is a general law, applicable to the entire Philippines.

The Court of Appeals, however, applied the Civil Code, and, we think, correctly. It is true that, insofar as its territorial application is concerned, Republic Act No. 409 is a special law and the Civil Code a general legislation; but, as regards the subject matter of the provisions above quoted, Section 4 of Republic Act 409 establishes a general rule regulating the liability of the City of Manila for "damages or injury to persons or property arising from the failure of" city officers "to enforce the provisions of" said Act "or any other law or ordinance, or from negligence" of the city "Mayor, Municipal Board, or other officers while enforcing or attempting to enforce said provisions." Upon the other hand, Article 2189 of the Civil Code constitutes a particular prescription making "provinces, cities and municipalities . . . liable for damages for the death of, or injury suffered by, any person by reason" — specifically — "of the defective condition of roads, streets, bridges, public buildings, and other public works under their control or supervision." In other words, said section 4 refers to liability arising from negligence, in general, regardless of the object thereof, whereas Article 2189 governs liability due to "defective streets," in particular. Since the present action is based upon the alleged defective condition of a road, said Article 2189 is decisive thereon.23

In the case of Bagatsing v. Ramirez,24 the issue was which law should govern the publication of a tax ordinance, the City Charter of Manila, a special act which treats ordinances in general and which requires their publication before enactment and after approval, or the Tax Code, a general law, which deals in particular with "ordinances levying or imposing taxes, fees or other charges," and which demands publication only after approval. In holding that it is the Tax Code which should prevail, the Court elucidated that:

There is no question that the Revised Charter of the City of Manila is a special act since it relates only to the City of Manila, whereas the Local Tax Code is a general law because it applies universally to all local governments. Blackstone defines general law as a universal rule affecting the entire community and special law as one relating to particular persons or things of a class. And the rule commonly said is that a prior special law is not ordinarily repealed by a subsequent general law. The fact that one is special and the other general creates a presumption that the special is to be considered as remaining an exception of the general, one as a general law of the land, the other as the law of a particular case. However, the rule readily yields to a situation where the special statute refers to a subject in general, which the general statute treats in particular. Th[is] exactly is the circumstance obtaining in the case at bar. Section 17 of the Revised Charter of the City of Manila speaks of "ordinance" in general, i.e., irrespective of the nature and scope thereof, whereas, Section 43 of the Local Tax Code relates to "ordinances levying or imposing taxes, fees or other charges" in particular. In regard, therefore, to ordinances in general, the Revised Charter of the City of Manila is doubtless dominant, but, that dominant force loses its continuity when it approaches the realm of "ordinances levying or imposing taxes, fees or other charges" in particular. There, the Local Tax Code controls. Here, as always, a general provision must give way to a particular provision. Special provision governs.

Let us examine the provisions involved in the case at bar. Article 32 of the Civil Code provides:

ART. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates, or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages:

x x x x

(6) The right against deprivation of property without due process of law;

x x x x

(8) The right to the equal protection of the laws;

x x x x

The rationale for its enactment was explained by Dean Bocobo of the Code Commission, as follows:

"DEAN BOCOBO. Article 32, regarding individual rights, Attorney Cirilo Paredes proposes that Article 32 be so amended as to make a public official liable for violation of another person’s constitutional rights only if the public official acted maliciously or in bad faith. The Code Commission opposes this suggestion for these reasons:

"The very nature of Article 32 is that the wrong may be civil or criminal. It is not necessary therefore that there should be malice or bad faith. To make such a requisite would defeat the main purpose of Article 32 which is the effective protection of individual rights. Public officials in the past have abused their powers on the pretext of justifiable motives or good faith in the performance of their duties. Precisely, the object of the Article is to put an end to official abuse by the plea of good faith. In the United States this remedy is in the nature of a tort.

"Mr. Chairman, this article is firmly one of the fundamental articles introduced in the New Civil Code to implement democracy. There is no real democracy if a public official is abusing and we made the article so strong and so comprehensive that it concludes an abuse of individual rights even if done in good faith, that official is liable. As a matter of fact, we know that there are very few public officials who openly and definitely abuse the individual rights of the citizens. In most cases, the abuse is justified on a plea of desire to enforce the law to comply with one’s duty. And so, if we should limit the scope of this article, that would practically nullify the object of the article. Precisely, the opening object of the article is to put an end to abuses which are justified by a plea of good faith, which is in most cases the plea of officials abusing individual rights."25

The Code Commission deemed it necessary to hold not only public officers but also private individuals civilly liable for violation of the rights enumerated in Article 32 of the Civil Code. It is not necessary that the defendant under this Article should have acted with malice or bad faith, otherwise, it would defeat its main purpose, which is the effective protection of individual rights. It suffices that there is a violation of the constitutional right of the plaintiff.26

Article 32 was patterned after the "tort" in American law.27 A tort is a wrong, a tortious act which has been defined as the commission or omission of an act by one, without right, whereby another receives some injury, directly or indirectly, in person, property, or reputation.28 There are cases in which it has been stated that civil liability in tort is determined by the conduct and not by the mental state of the tortfeasor, and there are circumstances under which the motive of the defendant has been rendered immaterial. The reason sometimes given for the rule is that otherwise, the mental attitude of the alleged wrongdoer, and not the act itself, would determine whether the act was wrongful.29 Presence of good motive, or rather, the absence of an evil motive, does not render lawful an act which is otherwise an invasion of another’s legal right; that is, liability in tort is not precluded by the fact that defendant acted without evil intent.30

The clear intention therefore of the legislature was to create a distinct cause of action in the nature of tort for violation of constitutional rights, irrespective of the motive or intent of the defendant.31 This is a fundamental innovation in the Civil Code, and in enacting the

Administrative Code pursuant to the exercise of legislative powers, then President Corazon C. Aquino, could not have intended to obliterate this constitutional protection on civil liberties.

In Aberca v. Ver,32 it was held that with the enactment of Article 32, the principle of accountability of public officials under the Constitution acquires added meaning and assumes a larger dimension. No longer may a superior official relax his vigilance or abdicate his duty to supervise his subordinates, secure in the thought that he does not have to answer for the transgressions committed by the latter against the constitutionally protected rights and liberties of the citizen. Part of the factors that propelled people power in February 1986 was the widely held perception that the government was callous or indifferent to, if not actually responsible for, the rampant violations of human rights. While it would certainly be too naive to expect that violators of human rights would easily be deterred by the prospect of facing damage suits, it should nonetheless be made clear in no uncertain terms that Article 32 of the Civil Code makes the persons who are directly, as well as indirectly, responsible for the transgression, joint tortfeasors.

On the other hand, Sections 38 and 39, Book I of the Administrative Code, laid down the rule on the civil liability of superior and subordinate public officers for acts done in the performance of their duties. For both superior and subordinate public officers, the presence of bad faith, malice, and negligence are vital elements that will make them liable for damages. Note that while said provisions deal in particular with the liability of government officials, the subject thereof is general, i.e., "acts" done in the performance of official duties, without specifying the action or omission that may give rise to a civil suit against the official concerned.

Contrarily, Article 32 of the Civil Code specifies in clear and unequivocal terms a particular specie of an "act" that may give rise to an action for damages against a public officer, and that is, a tort for impairment of rights and liberties. Indeed, Article 32 is the special provision that deals specifically with violation of constitutional rights by public officers. All other actionable acts of public officers are governed by Sections 38 and 39 of the Administrative Code. While the Civil Code, specifically, the Chapter on Human Relations is a general law, Article 32 of the same Chapter is a special and specific provision that holds a public officer liable for and allows redress from a particular class of wrongful acts that may be committed by public officers. Compared thus with Section 38 of the Administrative Code, which broadly deals with civil liability arising from errors in the performance of duties, Article 32 of the Civil Code is the specific provision which must be applied in the instant case precisely filed to seek damages for violation of constitutional rights.

The complaint in the instant case was brought under Article 32 of the Civil Code. Considering that bad faith and malice are not necessary in an action based on Article 32 of the Civil Code, the failure to specifically allege the same will not amount to failure to state a cause of action. The courts below therefore correctly denied the motion to dismiss on the ground of failure to state a cause of action, since it is enough that the complaint avers a violation of a constitutional right of the plaintiff.

Anent the issue on non-compliance with the rule against forum shopping, the subsequent submission of the secretary’s certificate authorizing the counsel to sign and execute the certification against forum shopping cured the defect of respondent’s complaint. Besides, the merits of the instant case justify the liberal application of the rules.33

WHEREFORE, in view of the foregoing, the petition is DENIED. The Decision of the Court of Appeals dated May 7, 1999 which affirmed the Order of the Regional Trial Court of Marikina, Branch 272, denying petitioner’s motion to dismiss, is AFFIRMED. The Presiding Judge, Regional Trial Court of Marikina, Branch 272, is herebyDIRECTED to continue with the proceedings in Civil Case No. 97-341-MK with dispatch.

With costs.

SO ORDERED.

Austria-Martinez, Chico-Nazario, Nachura, JJ., concur.

FIRST DIVISION

DIRECTOR CELSO PASCUAL OF THE TELECOMMUNICATIONS

OFFICE, LEGASPI CITY,Petitioner,

- versus -

HON. ORLANDO D. BELTRAN, AS JUDGE, RTC OF TUGUEGARAO, BRANCH 4, and

MRS. MONSERAT RAYMUNDO ASSISTED BY HER HUSBAND DOMICIANO RAYMUNDO,

Respondents.

G.R. No. 129318

Present:

PANGANIBANChairman,

YNARES-SANTIAGOAUSTRIA-MARTINEZ,

CALLEJO, SR.,CHICO-NAZARIO, JJ.

Promulgated:October 27, 2006

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

D E C I S I O N CHICO-NAZARIO, J.: This Petition for Review on Certiorari under Rule 45 of the Rules of Court seeks to nullify the Resolution[1] dated 27 January 1997 of the Court of Appeals in CA-G.R. SP No. 41488, dismissing the petition, and the subsequent Resolution dated 21 May 1997 denying[2] the Motion for Reconsideration. Petitioner Celso Pascual was then the Regional Director, while, private respondent Monserat Raymundo was the Human Resource Management Officer of the Telecommunications Office of the Department of Transportation and Communications (DOTC), Region II, Tuguegarao City. On 25 April 1990, private respondent was charged before the DOTC, Region II, Tuguegarao City, with Conduct Grossly Prejudicial to the Best Interest of the Service/Gross Insubordination/Violation of Reasonable Office Rules and Regulations, Gross Discourtesy in the Course of Official Functions and Gross Dishonesty Through Falsification of Official Document, by

petitioner, as Regional Director of the Telecommunications Office, Region II, Tuguegarao, Cagayan. The acts which gave rise to the charges are as follows:

That on March 13, 1990, February 22, 1990, February 20, 1990, February 16, 1990, February 13, 1990, July 10, 1989, you have deliberately arrogated unto yourself the authority vested in the Regional Director by signing official communications/correspondences despite the posting of Regional Office Order No. 87-01 S. October 6, 1987 notifying all concerned that all official correspondences shall be signed by the Regional Director; that on similar instances, on matters relating to the functions of implementing policies and without being officially issued the delegated authority to sign for and on behalf of the head of office, had signed communications thereof as an OIC but on the pretext as a HRMO of the office which is a clear manifestation of open disobedience/hostility to authority and wanton disregard of reasonable office rules and regulations and additionally, a conduct prejudicial to the interest of the service; That on or about 9:30 AM of March 16, 1990 and some other occasions, while in the office performing the functions of your position as HRMO of the office and therefore a pro-people oriented officer, you descended down to the level of an unschooled/unlearned by shouting to the top of your voice and making discourteous remarks against management you ought to serve openly before everybody by roaming around entering every room in the office not only making a mockery of your oath of office but also disturbing the other employees of their days work aside from creating an unwholesome/unpleasant environment within the office; That on September 5, 1989, you went on undertime for two (2) hours as appearing in the report of the official timekeeper whereas in your DTR, the entry thereof shows that you went out of the office at about 5:00 PM and that on January 27, 1989, February 23 and 24, 1989, March 8, 1989, June 20, 1989, July 14, 1989 and September 14, 1989 you went on unauthorized absences during regular office hours whereas in your DTR, the entries thereof (Time in and Time out) are complete, hence, the discrepancy and conclusion that you have stolen government time (theft of government time) and had falsified official documents which constitute gross dishonesty.[3]

On 2 August 1993, DOTC Assistant Secretary Pacifico F. Maghacot, Jr., exonerated

private respondent of the offenses charged. The Order exonerating the private respondent in part reads:

On charges of conduct grossly prejudicial to the to the best interest of the

service, gross insubordination and violation of reasonable office rules and regulations, the prosecution miserably failed to present substantial evidence, both testimonial and documentary, to warrant the findings of guilt against the respondent. It was alleged that respondent has committed the acts by deliberately arrogating herself the authority vested in the Regional Director by signing official communications/correspondence supposedly to be signed by the latter. However, not a single evidence or communications relative thereto had been presented during the hearing that would substantiate such imputation. Witness Felisa D. Suyo even testified to the effect that there are specific

functions in the job description of an employee which can be performed without prior authority from the Regional Director. Moreover, the Regional Office Order No. 87-01 datedOctober 6, 1987 which was allegedly violated by the herein respondent is quite vague, as [is] clearly shown in its text, to wit:

Republic of the PhilippinesDepartment of Transportation and CommunicationsTELECOMMUNICATIONS OFFICERegional Office No. IXTuguegarao, Cagayan

October 6, 1987

REGIONAL OFFICE ORDER NO. 87-01

SUBJECT: MR. CELSO PASCUAL, DOTC Regional Director,Telecommunications Office, Assumption to Duty:

Effective today, the undersigned is assuming the duties as DOTC Director of the Telecommunications Office, Region II.

As such, all official correspondence shall be prepared for the signature of

the undersigned. (SGD) CELSO V. PASCUALRegional Director The logical interpretation of this order as it should be, is that all official

correspondence usually signed by the Regional Director shall be prepared for his signature. Routinarycorrespondence such that within, the scope and function of an employee as provided in their respective job description are definitely not included. These conclusion finds support in no less than the testimony of prosecution witness, Ms. Felisa D. Suyo, during cross examination, thus:

Q - Do you agree with me that this memorandum of the Director is contrary to the job description?

A - Yes sir(TSN, p. 17, October 8, 1991)

x x x xQ- In short Miss Witness, this official order is in conflict with some

of your functions specified under the job description because it limits what has been written in the job description, is it not?

A- Yes, sir.

(TSN, pp. 25-26 October 8, 1991)

On charges of gross dishonesty in the course of official function, the prosecution has not proven the same. In fact, it has not presented a single proof on the matter.

The same is true on the charge of dishonesty through falsification of

official document. The official document being referred to here is the daily time

record or CSC Form No. 48 of the respondent for the month of September, 1989 which she allegedly falsified the time entry or the 5th day by entering her TIME OUT at 5:00 pm, when she reportedly went undertime at 3:00 pm.Verification of the original copy of the DTR revealed that there was indeed an alteration or superimposition thereon. The time entry of 3:00 pm appeared to have been superimposed over the time entry of 5:00 p.m. or vice versa.

In the direct examination of prosecution witness Mina Flor Talay, she

made a clarification on the matter by testifying to the fact that the correct TIME OUT of the correspondent was3:00 p.m., thus:

Q - According to your report, this is Civil Service Form No. 48

which shows that respondent was out during September 5, 1989 which shows that she went out at 3:00 0clock, is that right?

A - Yes sir. Q - And according to this form it was written here that her time

out is 5:00 Oclock.

A - No, sir, that is 3:00 Oclock(TSN, pp. 32-33, October 8 1991) She affirmed said testimonies during cross examination. She said:

Q- You stated [a] while ago that

Mrs. Raymundo went undertime for two hours on September 5, 1989. What was your basis in saying that Mrs. Raymundo went undertime for two hours?

A - It is specified in her DTR on September 5, 1989 that she went

out at 3:00 Oclock, sir. Q - So, this is suppose to be 3:00 Oclock?A - Yes sir.Q - So the actual time is actually reflected in her DTR? A - Yes sir.

(TSN, pp. 34-35, October 8, 1991).

Apparently, the prosecutions evidence itself belies the charge of dishonesty and falsification of official documents against the respondent. As to the tampering on the DTR, the same was not clarified and the person supposedly liable thereto was not identified too.

x x x x Needless to say, the guilt of the respondent on all charges was never

established. Therefore, theres no option but to exonerate her.[4]

On 22 October 1993, private respondent, assisted by her husband Domiciano Raymundo, filed an action[5] for damages arising from Malicious Administrative Suit against petitioner, in the Regional Trial Court (RTC) of Tuguegarao, Cagayan, Branch IV, docketed as Civil Case No. 4693, primarily on the basis of the administrative complaint for Conduct Grossly Prejudicial to the Best Interest of the Service/Gross Insubordination/Violation of Reasonable Office Rules and Regulations, Gross Discourtesy in the Course of Official Functions and Gross Dishonesty, filed by petitioner against private respondent.During the trial, petitioner was represented by the Office of the Solicitor General (OSG). On 27 September 1995, private respondent filed a motion [6] to disqualify the OSG from representing petitioner on the following grounds: that no right or interest of the government is involved, that petitioner is sued in his private capacity, and that petitioner had retired from the government since July 1995. Petitioner opposed[7] the motion on the following grounds: First, petitioner is being sued for acts arising from and related to his official position and function as Regional Director of the Telecommunications Office. Second, even if there is an allegation that petitioner is sued in his private capacity, the same could not defeat the protection accorded to public officials who are sued for acts related to or arising from their office. Third, the acts complained of arose from petitioners actions while in the performance of his official duties as Regional Director, thus, he is entitled to be represented by the OSG under Presidential Decree No. 478 (Defining the Powers and Functions of the Office of the Solicitor General), and reproduced in Section 35(1), Title 3, Book 4 of the Administrative Code of 1987. Fourth, the presumption is that petitioner acted in the performance of his official duties, thus, it is preposterous to argue that since petitioner had retired from public office, he is no longer allowed to be represented by the Solicitor General. Fifth, there is no law which supports private respondents claim that he is no longer allowed to be represented by the OSG. On 19 January 1996, the public respondent, Hon. Orlando D. Beltran, as Judge of the RTC of Tuguegarao, Cagayan, issued an order,[8] granting the motion to disqualify. The ratio of the Order reads:

The Court finds the motion to be meritorious. It may be granted, arguendo that herein defendant is being sued for acts which he committed in his official capacity but it is also true that the cause of action is for torts, for which he may be held personally answerable. Otherwise stated, since it is alleged that defendant acted with malice and [bad] faith and, thus, he should be made to pay damages to the plaintiff, the interest of the Government is in no way involved so that further appearance by the Solicitor General in his defense is unjustified.

A Motion for Reconsideration was filed but the same was denied in an Order dated 27 March 1996 wherein public respondent ruminated thus:

The order disqualifying the Office of the Solicitor General (herein referred to as SOLGEN) from continuing to appear as counsel for the

defendant Celso Pascual after the latter had retired from the government service was anchored upon the fact that, as the cause of action of the plaintiff is for damages based on tort, the defendant may be held personally liable for his acts and, therefore, the interests of the Government, the protection of which appears to be the sole justification of SOLGENs appearing as defendants counsel, is not adversely affected. The Court, as themovants mistakenly construe the order, did not yet make any finding that defendant is already liable for the acts complained of as tortuous. It could not yet have made such findings as no trial has been held nor evidence presented. Thus, the contention of the movants, on this point at least, has no factual basis It could very well be that the plaintiff may not be able to substantiate her complaint and the Court will dismiss it..The Court is in full agreement with the movants submission that plaintiff has yet to establish by competent proof her cause of action. On this there can be no dispute. The Court is not persuaded by the allegations of the movants that to disqualify the SOLGEN from this case would result in a disregard of the importance of the presumption of regularity of performance of public officers which in turn would throw the door wide open and expose public officials acting within the scope of their functions and authorities (sic) to private litigations. However this case may turn out, whether for or against the plaintiff, will not result in a disregard of the presumption enjoyed by public officials that they have regularly performed their duty. Neither will an adverse decision against herein defendant mean that the presumption of regularity of performance of official duty has been disregarded by this Court to the detriment of the State.[9]

On 16 May 1996, the OSG filed a manifestation and motion [10] stating, among other things, that they intend to elevate the issue to the Supreme Court;[11] consequently, they pray that the case be held in abeyance pending resolution of its petition before the higher court. The RTC in an Order[12] dated 28 May 1996 granted the motion and held in abeyance the case for sixty days in order to afford the OSG adequate time to file its intended petition with the Supreme Court. The RTC further ruled that if no petition is filed with the Supreme Court, the case shall be set for hearing.On 6 August 1996, petitioner filed a Petition for Certiorari[13] with the Court of Appeals by petitioner. Petitioner contends that the trial court acted with grave abuse of discretion amounting to lack of or in excess of authority in issuing the Order dated 19 January 1996, granting private respondents Motion to Disqualify the OSG from appearing in behalf of petitioner and the Order dated 27 March 1996, denying the motion for reconsideration thereof. On 27 January 1997, the Court of Appeals dismissed [14] the Petition on two grounds: 1) that the case is barred by laches as the Petition was filed 118 days after receipt of the denial of the motion for reconsideration; and 2) violation of Circular No. 28-91, as the Petition was signed by petitioners counsel. A motion for reconsideration was filed by petitioner but the same was denied by the Court of Appeals in an Order[15] dated 12 May 1997.

Hence, this Petition raising two issues for Resolution: WHETHER THE OSG IS DISQUALIFIED FROM REPRESENTING A PUBLIC OFFICIAL SUED WHILE IN THE PERFORMANCE OF HIS OFFICIAL DUTIES AND HAD RETIRED DURING THE PENDENCY OF THE TRIAL WHETHER THE TECHNICAL ISSUE SHOULD BE GIVEN PREFERENCE OVER THE MORE SUBSTANTIAL ISSUE INVOLVING PUBLIC POLICY AND GREATER INTEREST OF JUSTICE A perusal of the foregoing issues readily reveals that petitioner raises two aspects of the

case for consideration, both procedural and substantive. We deny this petition for its procedural and substantive flaws. As regards the procedural aspect, petitioner contends that the Court of Appeals should

have given preference to the substantial issue of the case rather than the technical issue in the greater interest of justice, as it dismissed the Petition on the ground that it was the Solicitor General who signed the Certification of non-forum shopping and that the case was filed 118 days late.

We shall first discuss the appellate courts dismissal of the Petition for non-compliance

with the requirements regarding certification of non-forum shopping.

Note that the certificate of non-forum shopping attached to the Petition for Certiorari filed with the Court of Appeals was signed by Solicitor Benilda Tejada.

It is settled that the requirement to file a certificate of non-forum shopping is mandatory

and that failure to comply with this requirement cannot be excused. The certification is a peculiar and personal responsibility of the party, an assurance given to the court or other tribunal that there are no other pending cases involving basically the same parties, issues and causes of action. Hence, the certification must be accomplished by the party himself because he has actual knowledge of whether or not he has initiated similar actions or proceedings in different courts or tribunals. Even his counsel may be unaware of such facts. Thus, the requisite certification executed by the plaintiffs counsel will not suffice,[16] as in the case at bar.

On the issue of timeliness of the filing of the Petition for Certiorari before the Court of

Appeals, the Petition was filed 118 days late as ruled by the Court of Appeals. Since the Petition for Certiorari was filed with the Court of Appeals on 6 August 1996,

the Revised Rules of Court should be applied. The Revised Rules of Court do not fix a specific time frame for the filing of a Special Civil Action for Certiorari under Rule 65 thereof. Jurisprudence at that time merely requires that the same be filed within a reasonable time from receipt of the questioned judgment or order. The period of three months (90 days) has been found as reasonable to file the Petition for Certiorari.[17] A Petition brought after 99 days is barred by laches.[18] Now, under the 1997 Rules of Civil Procedure, a Petition

for Certiorari shall be filed not later than 60 days from notice of the judgment, order or resolution.[19]

As alleged by the petitioner, the Order dated 19 January 1996, issued by public

respondent granting private respondents Motion to Disqualify the OSG from appearing in behalf of the petitioner, was received by petitioner on 9 February 1996, and the Order dated 27 March 1996, denying the motion for reconsideration was received by petitioner on 10 April 1996. The Petition for Certiorari was filed with the Court of Appeals on 6 August 1996, or after the lapse of 118 days, from the receipt of the Order denying his motion for reconsideration. Thus, in either law, the Petition was barred by laches.

Procedural rules are not to be disdained as mere technicalities. They may not be ignored to suit the convenience of a party. Adjective law ensures the effective enforcement of substantive rights through the orderly and speedy administration of justice. Rules are not to be intended to hamper litigants or complicate litigation. But they help provide for a vital system of justice where suitors may be heard in the correct form and manner, at the prescribed time in a peaceful though adversarial confrontation before a judge whose authority litigants acknowledge. Public order and our system of justice are well served by a conscientious observance of the rules of procedure, particularly by government officials and agencies.[20]

Ordinarily, we would dismiss this case solely on procedural grounds as discussed

above. However, considering the significance of the substantive issue, we deem it just and equitable to also resolve the same.

On matters of substance, what needs to be addressed is the issue of whether or not a

public official is entitled to representation by the OSG in a civil action for damages arising from an administrative suit filed against him by another public official. This issue is best resolved by a close scrutiny of the nature and extent of the power and authority lodged by law on the Solicitor General.

The authority of the OSG to represent the Republic of the Philippines, its agencies and

instrumentalities and its officials and agents, is embodied under Section 35(1), Chapter 12, Title III, Book IV of the Administrative Code of 1987 which provides that:

SEC. 35. Powers and Functions.The Office of the Solicitor

General shall represent the Government of the Philippines, its agencies and intrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of lawyers. When authorized by the President or head of the office concerned, it shall also represent government owned or controlled corporations.The Office of the Solicitor General shall constitute the law office of the Government and, as such, shall discharge duties requiring the services of lawyers. It shall have the following specific powers and functions:

(1) Represent the Government in the Supreme Court and the

Court of Appeals in all criminal proceedings; represent the Government and its officers in the Supreme Court, Court of

Appeals, and all other courts or tribunals in all civil actions and special proceedings in which the Government or any officer thereof in his official capacity is a party. (Emphasis supplied.)

The import of the above-quoted provision of the Administrative Code of 1987 is to impose upon the OSG the duty to appear as counsel for the Government, its agencies and instrumentalites and its officials and agents before the Supreme Court, the Court of Appeals, and all other courts and tribunals in any litigation, proceeding, investigation or matter requiring the services of a lawyer. We emphasized its mandatory character in the case of Gonzales v. Chavez,[21] thus:

It is patent that the intent of the lawmaker was to give the designated

official, the Solicitor General, in this case, the unequivocal mandate to appear for the government in legal proceedings. Spread out in the laws creating the office is the discernible intent which may be gathered from the term shall, which is invariably employed, from Act No. 136 (1901) to the more recent Executive Order No. 292 (1987).

x x x xThe decision of this Court as early as 1910 with respect to the duties of

the Attorney-General well applies to the Solicitor General under the facts of the present case. The Court then declared:

In this jurisdiction, it is the duty of the Attorney General to

perform the duties imposed upon him by law and he shall prosecute all causes, civil and criminal, to which the Government of the Philippine Islands, or any officer thereof, in his official capacity, is a party x x x. x x x x The Court is firmly convinced that, considering the spirit and the letter of

the law, there can be no other logical interpretation of Sec. 35 of the Administrative Code than that it is, indeed, mandatory upon the OSG to represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of a lawyer. (Emphases supplied.)

The provision allows a public official to be represented by the Solicitor General in all civil, criminal and special proceedings, when such proceedings arise from theformers acts in his official capacity.

However, in the case at bar, petitioner is actually sued in his personal capacity

inasmuch as his principal, the State, can never be the author of any wrongful act. [22] The Complaint filed by the private respondent with the RTC merely identified petitioner as Director of the Telecommunications Office, but did not categorically state that he was being sued in his official capacity. The mere mention in the Complaint of the petitioners position as Regional Director of the Telecommunications Office does not transform the action into one

against petitioner in his official capacity. What is determinative of the nature of the cause of action are the allegations in the complaint. It is settled that the nature of a cause of action is determined by the facts alleged in the complaint as constituting the cause of action. [23] The purpose of an action or suit and the law to govern it is to be determined not by the claim of the party filling the action, made in his argument or brief, but rather by the complaint itself, its allegations and prayer for relief.[24]

Also, it is evident from the Complaint filed by the private respondent before the RTC

that she sued petitioner for allegedly having personal motives in filing the administrative case against her. The Complaint in part reads:

Sometime on April 25, 1990, the herein defendant (herein petitioner) in

utter bad faith and in grave abuse of his authority and discretion as the Regional Director, and with the malicious intent of harassing, oppressing, vexing, embarrassing, molesting, and/or putting to ridicule the herein plaintiff (respondent herein), and with the further malicious intention of blemishing plaintiffs good name and reputation in the community, filed a baseless and unmeritorious administrative complaint against the herein plaintiff at the Telecommunications Office, Department of Transportation and Communication in Tuguegarao, Cagayan.[25] (Underscoring supplied.)

In fact, it can also be observed in the same Complaint that the reliefs sought by private respondent are directed against the petitioner personally and not his office.Respondent is claiming liability directly from petitioner. The relief sought by respondent is stated as follows:

As a consequence of the filing of the patently malicious, flimsy and

baseless administrative complaint, plaintiff suffered from mental anguish, serious anxiety, torment, wounded feelings, sleepless nights, besmirched reputation and social humiliation, apart from the fact that she was exposed to ridicule by his friends and officemates including his relatives and neighbors not to mention that her credibility as a public government official, was put into a bad light, for which reasons she demands by way of moral damages from defendant the amount of ONE HUNDRED FIFTY THOUSAND PESOS (P150,000.00);

x x x x

Wherefore, it is respectfully prayed of this Honorable Court that after due

proceedings, judgment be rendered in favor of the plaintiff and against the defendant by condemning the latter to pay to the former the following:

A) P150,000.00 as and by way of moral damages;B) P50,000.00 as and by way of exemplary damages;C) P15,000.00 as and by way of actual expenses of litigation;D) P10,000.00 as and by way of Attorneys fees; and such sum of

money representing litigation expenses as maybe proven during the trial on the merit, plus the cost of suit.[26](Emphases supplied.)

The authority of the Solicitor General to represent a public official in a suit against the latter is discussed in the cases of Anti-Graft League of the Philippines, Inc. v. Ortega.[27]

In Anti-Graft League of the Philippines, Inc. v. Ortega,[28] this Court interpreted such an

authority as to embrace both civil and criminal investigation, proceeding or matter requiring the services of a lawyer.

However, in Solicitor General v. Garrido,[29] the Court sustained the authority of the

Solicitor General to enter his appearance on behalf of public officials charged with violating a penal statute for acts connected with the performance of his official duties.

In the case of Urbano v. Chavez,[30] this Court clarified its pronouncements in the cases

of Anti-Graft League of the Philippines, Inc. v. Ortega and Solicitor General v.Garrido. In the Anti-Graft League of the Philippines, Inc. v. Ortega and Solicitor General v. Garrido cases, the OSG was authorized to enter its appearance as counsel for any public official, against whom a criminal charge had been instituted, during the preliminary investigation stage thereof. Nevertheless, in the same case, this Court held that once an information is filed against the public official, the OSG can no longer represent the said official in the litigation. The anomaly in this paradigm becomes obvious when, in the event of a judgment of conviction, the case is brought on appeal to the appellate courts. The OSG, as the appellate counsel of the People of the Philippines, is expected to take a stand against the accused. Accordingly, there is a clear conflict of interest here, and one which smacks of ethical considerations, where the OSG, as counsel for the public official, defends the latter in the preliminary investigation stage of the criminal case, and where the same office, as appellate counsel of the People of the Philippines, represents the prosecution when the case is brought on appeal. This anomalous situation could not have been contemplated and allowed by the law, its unconditional terms and provisions notwithstanding. It is a situation which cannot be countenanced by the Court.

There is likewise another reason, as earlier discussed, why the OSG cannot represent an

accused in a criminal case. Inasmuch as the State can speak and act only by law, whatever it does say and do must be lawful, and that which in unlawful is not the word or deed of the State, but is the mere wrong or trespass of those individual persons who falsely speak and act in its name. Therefore, the accused public official should not expect the State, through the OSG, to defend him for a wrongful act which cannot be attributed to the State itself. In the same light, a public official who is sued in a criminal case is actually sued in his personal capacity inasmuch as his principal, the State, can never be the author of a wrongful act, much less commit a crime. The Court further ruled that its observation should apply as well to a public official who is hailed to court in a civil suit for damages arising from a felony allegedly committed by him. Any pecuniary liability he may be held to account for on the occasion of such civil suit is for his own account. The Sate is not liable for the same. A fortiori, the Office of the Solicitor General likewise has no authority to represent him in such a civil suit for damages.

To repeat, the Solicitor General is the lawyer of the government, any of its agents and officials in any litigation, proceeding, investigation or matter requiring the services of a lawyer. The exception is when such officials or agents are being charged or are being civilly sued for damages arising from a felony.

This rationale must apply with greater force in the case at bar. Here, the private

respondent filed an action for damages arising from Malicious Administrative Suit against petitioner with the RTC of Tuguegarao, Cagayan, Branch IV. Petitioner was sued for damages arising from the administrative complaint he filed against respondent with the DOTC, for Conduct Grossly Prejudicial to the Best Interest of the Service/Gross Insubordination/Violation of Reasonable Office Rules and Regulations, Gross Discourtesy in the Course of Official functions and Gross Dishonesty. Private respondent was subsequently exonerated by the DOTC for failure of the petitioner to present substantial evidence to prove his charges against private respondent.

Also, an action for recovery of damages for the commission of an injury to a person is

a personal action.[31] A personal action is one brought for the recovery of personal property, for the enforcement of some contract of recovery of damages for its breach, or for the recovery of damages for the commission of an injury to the person or property.

More so, any liability the petitioner may be held to account for on the occasion of

such civil suit is for his own account and the State is not liable for the same. Thus, the OSG has no authority to represent him in such civil suit for damages.

Considering the foregoing, we rule that the trial court did not commit grave abuse of

discretion amounting to excess of or lack of jurisdiction in issuing the assailed orders. By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, and it must be shown that the discretion was exercised arbitrarily or despotically. For certiorari to lie, there must be capricious, arbitrary and whimsical exercise of power, the very antithesis of the judicial prerogative in accordance with centuries of both civil law and common law traditions.[32] We do not find here a capricious, whimsical and arbitrary exercise of power by the Judge or by the Court of Appeals questioning the act of the lower court.

WHEREFORE, in view of the foregoing, the instant Petition is hereby DISMISSED and the

Resolutions dated 27 January 1997 and 21 May 1997 of the Court of Appeals are hereby AFFIRMED. The Orders dated 19 January 1996 and 27 March 1996 of the RTC of Tuguegarao, Cagayan, Branch IV, in Civil Case No. 4693, disqualifying the Office of the Solicitor General from appearing as counsel of petitioner are likewise AFFIRMED. The Office of the Solicitor General is permanently prohibited from representing petitioner in said case. No pronouncement as to costs.

SO ORDERED.