If they were employees of BSFTI, were they validly dismissed?

Were private respondents validly dismissed?

Article 283 of the Labor Code is the applicable law. It states,

ART. 283. Closure of establishment and reduction of personnel. –The employer may also terminate the employment of any employee due to the installation of labor saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this Title, by serving a written notice on the worker and the Ministry of Labor and Employment at least one (1) month before the intended date thereof. In case of termination due to the installation of labor saving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least his one (1) month pay or to at least one (1) month pay for every year of service, whichever is higher. In case of retrenchment to prevent losses and in cases of closures or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered as one (1) whole year.

For the cessation of business operations due to serious business losses or financial reverses to be valid, the employer must give the employee and the DOLE written notices 30 days prior to the effectivity of his separation.

In Agabon v. National Labor Relations Commission, we ruled that where the dismissal is for an authorized cause, the lack of statutory due process should not nullify the dismissal, or render it illegal, or ineffectual. However, the employer should indemnify the employee, in the form of nominal damages, for the violation of his right to statutory due process. The amount of such damages is addressed to the sound discretion of the Court, taking into account the relevant circumstances. In Jaka Food Processing Corporation v. Pacot, we noted that the sanction should be stiffer because the dismissal process was initiated by the employer’s exercise of its management prerogative.

The NLRC and the Court of Appeals were unanimous in finding that BSFTI’s closure was bona fide. The records before us revealed that it suffered losses from 1996 to 1998. juxtaposing the facts of this case vis the applicable law and jurisprudence, P40,000 as nominal damages would be sufficient to vindicate each respondent’s right to due process. A violation of that right suffices to support an award of nominal damages.

SOURCE: [ G.R. NO. 157133, January 30, 2006 ]BUSINESS SERVICES OF THE FUTURE TODAY, INC. AND RAMON F. ALLADO, PETITIONERS, VS. COURT OF APPEALS, GILBERT C. VERUASA AND MA. CELESTINA A. VERUASA, RESPONDENTS. Tags: Alcantara Alcoy moral damages Alegria actual damages Aloguinsan Argao Asturias Badian Balamban Bantayan Barili Boljoon Borbon Carmen Catmon Compostela Consolacion Cordova Daanbantayan Dumaguete Bais Sibulan Tampi Bacong Negros Bacolod Separation pay Resign Resignation Back wages Backwages Length of service pay benefit employee employer relationship Silay Kabankalan Daan Bantayan Dalaguete Dumanjug Ginatilan Liloan compensatory damages Madridejos Malabuyoc Medellin Minglanilla Moalboal Oslob Pilar Pinamungajan Poro Ronda Samboan San Fernando San Francisco San Remigio Sante Fe Santander Sibonga Sogod Tabogon Tabuelan Tuburan attorney’s fees Tudela exemplary damages Camotes General Luna Siargao Cagayan Davao Kidapawan Attorney Abogado Lawyer Architect Real Estate Broker nominal damages Sales Agent Properties for Sale Looking for Buyers Design Build House and Lot for Sale for Rent Talisay City Mandaue City Lapu Lapu Lapu-Lapu City Yncierto Sesante Villanueva Ruz Jan Edmond Marc Tim Timothy temperate damages Luz liquidated damages Kristin tct transfer certificate of title tax declaration birth certificate relocation survey surveying judicial titling administrative titling patent title denr cenro foreshore lease ecc environmental compliance certificate design build architect cebu engineer interior design designer residential commercial cebu property warehouse for rent for lease marc Christian yncierto ruz jan Edmond yncierto ruz Kristin Villanueva ruz Edmond mabalot ruz marriage certificate timber land forest land watershed agricultural lot land use conversion hearing trial illegal drugs trial lawyer business corporate lawyer labor lawyer immigration law bureau of immigration cebu 9g visa search warrant warrant of arrest motion to quash information complaint police officers buy bust physical suffering shocked horrified mental anguish fright serious anxiety besmirched reputation sleepless nights wounded feelings moral shock social humiliation similar injuries

Were the spouses employees or stockholders of BSFTI?

Preliminarily, it bears stressing that the prior existence of an employer-employee relationship is an indispensable precondition for a claim of illegal dismissal to prosper. Here, both parties admitted that Gilbert and Celestina were hired as BSFTI’s manager and assistant manager, respectively, with P15,000 monthly salary. The petitioners would have us believe, however, that Gilbert was also a stockholder, hence, there was no need to notify DOLE of the closure since as stockholder, he was presumed to have taken part in the decision to close the business.

Notice of closure to the DOLE is mandatory. It allows the DOLE to ascertain whether the closure and/or dismissals were done in good faith and not a pretext for evading obligations to the employees. This requirement protects the workers’ right to security of tenure. Failure to comply with this requirement taints the dismissal. This rule, however, admits of exceptions. If the employee consented to his retrenchment due to the closure or cessation of operation, the required prior notice to the DOLE is not necessary as the employee thereby acknowledges the existence of a valid cause for termination of his employment.

Did respondent Gilbert Veruasa consent to his dismissal?

The evidence shows that he did not. Although only his correspondences with the petitioners suggest that he was a stockholder of BSFTI, there is no showing that he participated in the alleged stockholders’ meeting where the company’s closure was discussed. The self-serving Joint Affidavit of Allado and Dominguez attesting that Gilbert participated in the meeting discussing the closure is insufficient. The minutes of such meeting would have been better. Further, the SEC certification dated November 9, 1999, provided that BSFTI did not submit any communication signifying the termination of its corporate life nor its non-operation for 1998, giving rise to serious doubts that such meeting ever took place. Hence, there is no convincing evidence to show that Gilbert consented to his dismissal and for these reasons the petitioners should have submitted a written notice of BSFTI’s closure to the DOLE.

SOURCE: [ G.R. NO. 157133, January 30, 2006 ]BUSINESS SERVICES OF THE FUTURE TODAY, INC. AND RAMON F. ALLADO, PETITIONERS, VS. COURT OF APPEALS, GILBERT C. VERUASA AND MA. CELESTINA A. VERUASA, RESPONDENTS. Tags: conversion hearing trial illegal drugs trial lawyer business corporate lawyer labor lawyer immigration law bureau of immigration cebu 9g visa search warrant warrant of arrest motion to quash information complaint police officers buy bust physical suffering shocked horrified mental anguish fright serious anxiety besmirched reputation sleepless nights wounded feelings moral shock social humiliation similar injuries Real Estate Broker nominal damages Sales Agent Properties for Sale Looking for Buyers Design Build House and Lot for Sale for Rent Talisay City Mandaue City Lapu Lapu Lapu-Lapu City Yncierto Sesante Villanueva Ruz Jan Edmond Marc Tim Timothy temperate damages Luz liquidated damages Kristin tct transfer certificate of title tax declaration birth certificate relocation survey surveying judicial titling administrative titling patent title denr cenro foreshore lease ecc environmental compliance certificate design build architect cebu engineer interior design designer residential commercial cebu property warehouse for rent for lease marc Christian yncierto ruz jan Edmond yncierto ruz Kristin Villanueva ruz Edmond mabalot ruz marriage certificate timber land forest land watershed agricultural lot land use Alcantara Alcoy moral damages Alegria actual damages Aloguinsan Argao Asturias Badian Balamban Bantayan Barili Boljoon Borbon Carmen Catmon Compostela Consolacion Cordova Daanbantayan Dumaguete Bais Sibulan Tampi Bacong Negros Bacolod Separation pay Resign Resignation Back wages Backwages Length of service pay benefit employee employer relationship Silay Kabankalan Daan Bantayan Dalaguete Dumanjug Ginatilan Liloan compensatory damages Madridejos Malabuyoc Medellin Minglanilla Moalboal Oslob Pilar Pinamungajan Poro Ronda Samboan San Fernando San Francisco San Remigio Sante Fe Santander Sibonga Sogod Tabogon Tabuelan Tuburan attorney’s fees Tudela exemplary damages Camotes General Luna Siargao Cagayan Davao Kidapawan Attorney Abogado Lawyer Architect

Upon a person over fifteen and under eighteen years of age the penalty next lower than that prescribed by law shall be imposed, but always in the proper period.

Thus, the imposable penalty on James Andrew, by reason of his minority, is one degree lower than the statutory penalty. The penalty for the special complex crime of kidnapping and serious illegal detention with homicide and rape, being death, one degree lower therefrom is reclusion perpetua. On the other hand, the penalty for simple kidnapping and serious illegal detention is reclusion perpetua to death. One degree lower therefrom is reclusion temporal. There being no aggravating and mitigating circumstance, the penalty to be imposed on James Andrew is reclusion temporal in its medium period. Applying the Indeterminate Sentence Law, he should be sentenced to suffer the penalty of twelve (12) years of prision mayor in its maximum period, as minimum, to seventeen (17) years of reclusion temporal in its medium period, as maximum.

Accordingly, in Criminal Case No. CBU-45303, the penalty of reclusion perpetua should be imposed upon James Andrew; while in Criminal Case No. CBU-45304, the imposable penalty upon him is twelve (12) years of prision mayor in its maximum period, as minimum, to seventeen (17) years of reclusion temporal in its medium period, as maximum.

WHEREFORE, the motion for reconsideration is hereby GRANTED. Our Decision dated February 3, 2004 is AFFIRMED with the MODIFICATION that in Criminal Case No. CBU-45303, James Andrew Uy is sentenced to suffer the penalty of reclusion perpetua; while in Criminal Case No. CBU-45304, the penalty of twelve (12) years of prision mayor in its maximum period, as MINIMUM, to seventeen (17) years of reclusion temporal in its medium period, as maximum.

SO ORDERED.

SOURCE: [ G.R. Nos. 138874-75, January 31, 2006 ]PEOPLE OF THE PHILIPPINES, APPELLEE, VS. FRANCISCO JUAN LARRAÑAGA ALIAS “PACO;” JOSMAN AZNAR; ROWEN ADLAWAN ALIAS “WESLEY;” ALBERT CAÑO ALIAS “ALLAN PAHAK;” ARIEL BALANSAG; DAVIDSON VALIENTE RUSIA ALIAS `TISOY TAGALOG;” JAMES ANTHONY UY ALIAS “WANGWANG;” AND JAMES ANDREW UY ALIAS “MM,” APPELLANTS. Tags: Remigio Sante Fe Santander Sibonga Sogod Tabogon Tabuelan Tuburan attorney’s fees Tudela exemplary damages Camotes General Luna Siargao Cagayan Davao Kidapawan Attorney Abogado Lawyer Architect Real Estate Broker nominal damages Sales Agent Properties for Sale Looking for Buyers Design Build House and Lot for Sale for Rent Talisay City Mandaue City Lapu Lapu Lapu-Lapu City Yncierto Sesante Villanueva Ruz Jan Edmond Marc Tim Timothy temperate damages Luz liquidated damages Kristin tct transfer certificate of title tax declaration birth certificate relocation survey surveying judicial titling administrative titling patent title denr cenro foreshore lease ecc environmental compliance certificate design build architect cebu engineer interior design designer residential commercial cebu property warehouse for rent for lease marc Christian yncierto ruz jan Edmond yncierto ruz Kristin Villanueva ruz Edmond mabalot ruz marriage certificate timber land forest land watershed agricultural lot land use conversion hearing trial illegal drugs trial lawyer business corporate lawyer labor lawyer immigration law bureau of immigration cebu 9g visa search warrant warrant of arrest motion to quash information complaint police officers buy bust physical suffering shocked horrified mental anguish fright serious anxiety besmirched reputation sleepless nights wounded feelings moral shock social humiliation similar injuries Alcantara Alcoy moral damages Alegria actual damages Aloguinsan Argao Asturias Badian Balamban Bantayan Barili Boljoon Borbon Carmen Catmon Compostela Consolacion Cordova Daanbantayan Dumaguete Bais Sibulan Tampi Bacong Negros Bacolod Separation pay Resign Resignation Back wages Backwages Length of service pay benefit employee employer relationship Silay Kabankalan Daan Bantayan Dalaguete Dumanjug Ginatilan Liloan compensatory damages Madridejos Malabuyoc Medellin Minglanilla Moalboal Oslob Pilar Pinamungajan Poro Ronda Samboan San Fernando San Francisco San

A JUDGE SHOULD AVOID IMPROPRIETY AND APPEARANCE OF IMPROPRIETY IN ALL ACTIVITIES

Rule 2.01 – A judge should so behave at all times as to promote public confidence in the integrity and impartiality of the judiciary.

By demanding and receiving money from a litigant before his court in consideration of a favorable judgment, respondent performed acts of impropriety which did violence to the integrity of the judiciary and degraded public confidence in the courts. In Avanceña v. Liwanag, the Court articulated:

A judge should always be a symbol of rectitude and propriety, comporting himself in a manner that will raise no doubt whatsoever about his honesty (Office of the Court Administrator v. Barron, 297 SCRA 376, 392 [1998]; Yuson v. Noel, 227 SCRA 1, 7 [1993]). Integrity in a judicial office is more than a virtue; it is a necessity (Capuno v. Jaramillo, Jr., 234 SCRA 212, 232 [1994]).

Section 11 of Rule 140 of the Rules of Court enumerates the imposable sanctions for a serious charge as follows:

  1. Dismissal from the service, forfeiture of all or part of the benefits as the Court may determine and disqualification from reinstatement or appointment to any public office, including government-owned or controlled corporations: Provided, however, that the forfeiture of benefits shall in no case include accrued leave credits;
  2. Suspension from office without salary and other benefits for more than three (3) but not exceeding six (6) months; or
  3. A fine of more than P20,000.00 but not exceeding P40,000.00.

The Court has consistently imposed the penalty of dismissal on magistrates found guilty of bribery. In Office of the Court Administrator v. Bautista, the Court provides the rationale for imposing the severest penalty in such cases, as follows:

Bribery is classified as a serious charge punishable by, inter alia, dismissal from the service with forfeiture of benefits and disqualification from re-employment or appointment in any public office including government-owned or controlled corporations. (NBI v. Reyes, 326 SCRA 109 [2000]). It constitutes a serious misconduct in office, which this Court condemns in the strongest possible terms. It is this kind of gross and flaunting misconduct on the part of those who are charged with the responsibility of administering the law and rendering justice that so quickly and surely erodes the respect for the law and the courts without which government cannot continue and that tears apart the very bonds of our polity. (Calilung v. Suriaga, 339 SCRA 340 [2000] citing Haw Tay v. Singayao, 154 SCRA 107 [1987]). 

WHEREFORE, respondent, Judge Teodoro A. Dizon, is hereby DISMISSED FROM THE SERVICE with forfeiture of all benefits, except accrued leave credits, and with prejudice to re-employment in the Government or any of its subdivisions, instrumentalities or agencies including Government-owned and controlled corporations. Item “e” in the Court’s Resolution, dated October 21, 1998, which REQUIRED the Office of the Bar Confidant to conduct its own investigation, report and recommendation with respect to the actuations of Atty. Ricardo Barrios, Jr., is REITERATED. No costs.

SO ORDERED.

SOURCE: [ A.M. NO. RTJ-98-1426, January 31, 2006 ]MANUEL C. RAFOLS, JR. AND LOLITA B. RAFOLS, COMPLAINANTS, VS. JUDGE TEODORO A. DIZON, RESPONDENT. Tags: Alcantara Alcoy moral damages Alegria actual damages Aloguinsan Argao Asturias Badian Balamban Bantayan Barili Boljoon Borbon Carmen Catmon Compostela Consolacion Cordova Daanbantayan Dumaguete Bais Sibulan Tampi Bacong Negros Bacolod Separation pay Resign Resignation Back wages Backwages Length of service pay benefit employee employer relationship Silay Kabankalan Daan Bantayan Dalaguete Dumanjug Ginatilan Liloan compensatory damages Madridejos Malabuyoc Medellin Minglanilla Moalboal Oslob Pilar Pinamungajan Poro Ronda Samboan San Fernando San Francisco San Remigio Sante Fe Santander Sibonga Sogod Tabogon Tabuelan Tuburan attorney’s fees Tudela exemplary damages Camotes General Luna Siargao Cagayan Davao Kidapawan Attorney Abogado Lawyer Architect Real Estate Broker nominal damages Sales Agent Properties for Sale Looking for Buyers Design Build House and Lot for Sale for Rent Talisay City Mandaue City Lapu Lapu Lapu-Lapu City Yncierto Sesante Villanueva Ruz Jan Edmond Marc Tim Timothy temperate damages Luz liquidated damages Kristin tct transfer certificate of title tax declaration birth certificate relocation survey surveying judicial titling administrative titling patent title denr cenro foreshore lease ecc environmental compliance certificate design build architect cebu engineer interior design designer residential commercial cebu property warehouse for rent for lease marc Christian yncierto ruz jan Edmond yncierto ruz Kristin Villanueva ruz Edmond mabalot ruz marriage certificate timber land forest land watershed agricultural lot land use conversion hearing trial illegal drugs trial lawyer business corporate lawyer labor lawyer immigration law bureau of immigration cebu 9g visa search warrant warrant of arrest motion to quash information complaint police officers buy bust physical suffering shocked horrified mental anguish fright serious anxiety besmirched reputation sleepless nights wounded feelings moral shock social humiliation similar injuries

whether the defense of prescription is a question of fact or law

On the issue of whether the defense of prescription is a question of fact or law, the distinction is settled that there is a question of fact when the doubt or difference arises as to the truth or falsehood of the alleged facts. On the other hand, a question of law exists when there is a doubt or controversy as to what the law is on a certain state of facts. For a question to be one of law, the same must not involve an examination of the probative value of the evidence presented by the litigants or any of them. The resolution of the issue must rest solely on what the law provides on the given set of circumstances. Once it is clear that the issue invites a review of the evidence presented, the question posed is one of fact.

The test of whether a question is one of law or of fact is not the appellation given to such question by the party raising the same; rather, it is whether the appellate court can determine the issue raised without reviewing or evaluating the evidence, in which case, it is a question of law; otherwise it is a question of fact. 

In the case of Santos, et al. v. Aranzanso, this Court has held that the question of prescription of the action involves the ascertainment of factual matters such as the date when the period to bring the action commenced to run. In Lim v. Chan, this Court has again decreed that prescription is a factual matter when it held that without conducting trial on the merits, the trial court cannot peremptorily find the existence of estoppel, laches, fraud or prescription of actions as these matters require presentation of evidence and determination of facts.

At first glance, applying these jurisprudence as bases, it may seem that the Court of Appeals acted correctly in denying the petition. However, while we agree with the Court of Appeals that the issue of prescription is a factual matter, we deem it erroneous on its part to have dismissed the petition on this ground. The Court of Appeals could have squarely ruled if the trial court committed grave abuse of discretion in denying the motion to dismiss the Complaint filed by the petitioners considering that the facts from which the issue of prescription can be adduced are available to the appellate court, they being extant from the records.

The records disclose that the date of registration of the subject property in the name of the petitioners was 16 November 1993 while the Deed of Sale executed in favor of the respondent was dated 24 September 1986. The complaint for the reconveyance and cancellation of TCT was filed by the respondent on 20 June 2002.

Moreover, a motion to dismiss based on prescription hypothetically admits the truth of the facts alleged in the complaint. Such hypothetical admission is limited to the facts alleged in the complaint which relate to, and are necessary for, the resolution of the grounds stated in the motion to dismiss as preliminary matters involving substantive or procedural laws, but not to the other facts of the case. As applied herein, the hypothetical admission extends to the date of execution of the Deed of Sale in favor of the respondent and to the date of registration of title in favor of the petitioners.

The foregoing considered, the Court of Appeals was properly equipped with the tools to determine if the trial court abused its discretion in ruling that respondent’s cause of action had not prescribed. Nevertheless, instead of remanding this case to the Court of Appeals which is concededly a costly endeavor in terms of the parties’ resources and time, we shall rule on the issue of prescription.

Petitioners’ allegation that an action for the reconveyance of real property on the ground of fraud must be filed within four years from the discovery of the fraud is without basis.

The four-year prescriptive period relied upon by the petitioners apply only if the complaint seeks to annul a voidable contract under Article 1390 of the Civil Code. In such case, the four-year prescriptive period under Article 1391 begins to run from the time of discovery of the mistake, violence, intimidation, undue influence or fraud.

Generally, an action for reconveyance of real property based on fraud prescribes in four years from the discovery of fraud; such discovery is deemed to have taken place upon the issuance of the certificate of title over the property. Registration of real property is a constructive notice to all persons and, thus, the four-year period shall be counted therefrom.

In the case at bar, respondent’s action which is for Reconveyance and Cancellation of Title is based on an implied trust under Art. 1456 of the Civil Code since he averred in his complaint that through fraud petitioners were able to obtain a Certificate of Title over the property. He does not seek the annulment of a voidable contract whereby Articles 1390 and 1391 of the Civil Code would find application such that the cause of action would prescribe in four years.

Art. 1456 of the Civil Code provides:

Art. 1456. If property is acquired through mistake or fraud, the person obtaining it is, by force of law, considered a trustee of an implied trust for the benefit of the person from whom the property comes.

Thus, it was held that when a party uses fraud or concealment to obtain a certificate of title of property, a constructive trust is created in favor of the defrauded party.

Constructive trusts are “created by the construction of equity in order to satisfy the demands of justice and prevent unjust enrichment. They arise contrary to intention against one who, by fraud, duress or abuse of confidence, obtains or holds the legal right to property which he ought not, in equity and good conscience, to hold.”

When property is registered in another’s name, an implied or constructive trust is created by law in favor of the true owner. The action for reconveyance of the title to the rightful owner prescribes in 10 years from the issuance of the title.

An action for reconveyance based on implied or constructive trust prescribes in ten years from the alleged fraudulent registration or date of issuance of the certificate of title over the property.

It is now well-settled that the prescriptive period to recover property obtained by fraud or mistake, giving rise to an implied trust under Art. 1456 of the Civil Code, is 10 years pursuant to Art. 1144. This ten-year prescriptive period begins to run from the date the adverse party repudiates the implied trust, which repudiation takes place when the adverse party registers the land.

Clearly, the applicable prescriptive period is ten years under Art. 1144 and not four years under Arts. 1389 and 1391.

Applying the law and jurisprudential declaration above-cited to the allegations of fact in the complaint, it can clearly be seen that respondent has a period of 10 years from the registration of the title within which to file the action. Since the title was registered in the name of the petitioners on 16 November 1993, respondent had a period of 10 years from the time of the registration within which to file the complaint. Since the complaint was filed on 20 June 2002, the action clearly has not prescribed and was timely-filed.

WHEREFORE, premises considered, the instant petition is:

(1) GRANTED, with respect to the petitioners’ prayer that the Court of Appeals should have resolved the petition on the merits.

(2) DENIED, with respect to the prayer for the dismissal of Civil Case No. C-20128 before the Regional Trial Court of Caloocan City, Branch 121.

The case is ordered remanded to the trial court which is directed to continue with the hearing and proceed with Civil Case No. C-20128 with deliberate dispatch. No costs.
SO ORDERED.

SOURCE: [ G.R. NO. 164787, January 31, 2006 ]MARLENE CRISOSTOMO & JOSE G. CRISOSTOMO, PETITIONERS, VS. FLORITO M. GARCIA, JR., RESPONDENT. Tags: conversion hearing trial illegal drugs trial lawyer business corporate lawyer labor lawyer immigration law bureau of immigration cebu 9g visa search warrant warrant of arrest motion to quash information complaint police officers buy bust physical suffering shocked horrified mental anguish fright serious anxiety besmirched reputation sleepless nights wounded feelings moral shock social humiliation similar injuries Real Estate Broker nominal damages Sales Agent Properties for Sale Looking for Buyers Design Build House and Lot for Sale for Rent Talisay City Mandaue City Lapu Lapu Lapu-Lapu City Yncierto Sesante Villanueva Ruz Jan Edmond Marc Tim Timothy temperate damages Luz liquidated damages Kristin tct transfer certificate of title tax declaration birth certificate relocation survey surveying judicial titling administrative titling patent title denr cenro foreshore lease ecc environmental compliance certificate design build architect cebu engineer interior design designer residential commercial cebu property warehouse for rent for lease marc Christian yncierto ruz jan Edmond yncierto ruz Kristin Villanueva ruz Edmond mabalot ruz marriage certificate timber land forest land watershed agricultural lot land use Alcantara Alcoy moral damages Alegria actual damages Aloguinsan Argao Asturias Badian Balamban Bantayan Barili Boljoon Borbon Carmen Catmon Compostela Consolacion Cordova Daanbantayan Dumaguete Bais Sibulan Tampi Bacong Negros Bacolod Separation pay Resign Resignation Back wages Backwages Length of service pay benefit employee employer relationship Silay Kabankalan Daan Bantayan Dalaguete Dumanjug Ginatilan Liloan compensatory damages Madridejos Malabuyoc Medellin Minglanilla Moalboal Oslob Pilar Pinamungajan Poro Ronda Samboan San Fernando San Francisco San Remigio Sante Fe Santander Sibonga Sogod Tabogon Tabuelan Tuburan attorney’s fees Tudela exemplary damages Camotes General Luna Siargao Cagayan Davao Kidapawan Attorney Abogado Lawyer Architect

Whether the COMELEC committed grave abuse of discretion when it ordered the MBC to reconvene to rectify its errors and to proclaim the winner in the vice-mayoralty race in Alicia, Isabela

The petitioner avers that when he filed the motion for reconsideration of the November 23, 2004 Resolution of the COMELEC Second Division, the order to reconvene the MBC was, in effect, suspended by virtue of Section 2, Rule 19 of the COMELEC Rules of Procedure which reads:

Sec. 2. Period for Filing Motions for Reconsideration.—A motion to reconsider a decision, resolution, order, or ruling of a Division shall be filed within five (5) days from the promulgation thereof. Such motion, if not pro-forma, suspends the execution or implementation of the decision, resolution, order or ruling.

The petitioner maintains that his motion for reconsideration was timely filed on December 1, 2004, or within the five-day reglementary period, since he received a copy of the November 23, 2004 Resolution of the COMELEC Second Division on November 26, 2004. This contention is not quite correct. The petitioner cannot count the five-day reglementary period from November 26, 2004, the date he received a copy of the November 23, 2004 Resolution of the COMELEC Second Division. Section 2, Rule 19 of the COMELEC Rules of Procedure clearly provides that the motion for reconsideration should be “xxx filed within five (5) days from the promulgation thereof.”  The rationale for reckoning the period from the date of promulgation was explained, thus: “A party cannot feign ignorance of the date of promulgation of a decision or resolution because it is previously fixed and notice is served upon him in advance.”  Section 5, Rule 18 of the COMELEC Rules of Procedure provides:

Sec. 5. Promulgation. – The promulgation of a decision or resolution of the Commission or a Division shall be made on a date previously fixed, of which notice shall be served in advance upon the parties or their attorneys personally or by registered mail or by telegram.

The petitioner’s motion for reconsideration was thus filed late on December 1, 2004 as more than five days had lapsed from the promulgation of the November 23, 2004 Resolution of the COMELEC Second Division. Worse, the filing fee therefor was paid only on December 13, 2004. Given these defects, the petitioner’s motion for reconsideration could not have the effect of suspending the execution of the November 23, 2004 Resolution of the COMELEC Second Division.

In any case, the COMELEC Second Division justified the reconvening of the MBC in this wise:

On June 21, 2004, public respondent Election Officer Teresita B. Angangan, Chairman of the Board, submitted her answer. She admitted that there were indeed manifest errors committed by the Board in the preparation of the Statement of Votes but denied that “dagdag-bawas was done, practiced, perpetrated and repeated several times over by the Municipal Board of Canvassers.” She maintained that there was no dagdag-bawas but a mere error in tabulation or tallying.

EO Angangan also submitted a table comparing the figures in the Election Returns and in the Statement of Votes in all 156 clustered precincts. In this table (Annex 1 of public respondent’s Answer), she pointed out that based on the Election Returns, petitioner [private respondent herein] should have won the elections after garnering 11,401 votes as against the 11,152 votes for private respondent.

xxx


There is no question that errors were committed regarding the copying of the results of the elections from the Election Returns to the Statement of Votes. Both the public and private respondent admitted that errors were indeed made. They just differ as to who will be the real winner if these errors are corrected. According to public respondent, petitioner won; private respondent maintains he would still have won even if the errors were corrected.

What is involved here is a simple problem of arithmetic. The Statement of Votes involved in this case does not match the entries made in the election returns.

It is thus imperative that a Municipal Board of Canvasser be immediately convened to correct with dispatch the errors committed in the tallying of votes. 

The COMELEC en banc upheld the reconvening of the MBC, thus:

xxx “The teaching of past experience is that every effort should be strained, every means should be explored, to ascertain the true returns with the end in view that upon the basis thereof, proclamation untainted by force, fraud, forgery, mistake and the like, may be made. It is true indeed that after proclamation, the losing candidate may yet have the remedy of an election protest. But that may not prove effective. A number of factors, such as the almost illimitable resources of lawyers and the delay that may be occasioned may well frustrate the ends of the protest. Victory may just be in sound, and not in substance.” While it is true that as a general rule, the Board of Canvassers becomes functus officio after it has performed its last task, which is to proclaim the winning candidates, the Highest Tribunal had the opportunity to cite an exception to such general rule in Javier vs. COMELEC, where it stated that “it may be conceded as a general proposition that when a Board of Canvassers has fully performed its duty and proclaimed the result of the election according to law and adjourned sine die, it may be deemed functus officio in the sense that the members of the board have no power voluntarily to reassemble and re-canvass the returns. But the foregoing pronouncement finds no application in this case where as already ruled, the canvass and proclamation were made in violation of the lawful order of the COMELEC.

Furthermore, where an election return has been amended by court order or the election return from a certain precinct has been wrongfully or erroneously excluded by the Board of Canvassers, We held that the COMELEC has the power to order a new canvass of the election returns even after a proclamation had already been made. The underlying theory therefore, it was said, is the ministerial duty of the Board of Canvassers to base the proclamation on the election returns of all the precincts of the municipality. Where the Board of Canvassers, as in this instance with knowledge that the return from one precinct is undoubtedly vitiated by clerical mistake, continued the canvass and proclaimed a winner based on the result of such canvass, the proclamation cannot be said to have been in faithful discharge of its ministerial duty under the law. 

We find no grave abuse of discretion in the foregoing COMELEC pronouncements. There is no controversy that discrepancies exist in the statement of votes and that reflected in the questioned election returns. Considering that any error in the statement of votes would affect the proclamation made on the basis thereof, the resolution of the COMELEC directing the MBOC to reconvene to rectify the errors it committed in tallying the votes for the vice-mayoralty race in Alicia, Isabela should be upheld. Indeed, “above and beyond all, the determination of the true will of the electorate should be paramount. It is their voice, not ours or of anyone else, that must prevail. This, in essence, is the democracy we continue to hold sacred.” 

WHEREFORE, premises considered, the petition is hereby DISMISSED and the Resolutions of the COMELEC Second Division and en banc dated November 23, 2004 and February 22, 2005, respectively, are AFFIRMED. The status quo order heretofore issued is hereby ordered LIFTED.

SO ORDERED.

SOURCE: [ G.R. NO. 167101, January 31, 2006 ]MANUEL A. ALEJANDRO, PETITIONER, VS. COMMISSION ON ELECTIONS, DAMIAN L. CO, AND THE MUNICIPAL BOARD OF CANVASSERS OF ALICIA, ISABELA, RESPONDENTS. Tags: Remigio Sante Fe Santander Sibonga Sogod Tabogon Tabuelan Tuburan attorney’s fees Tudela exemplary damages Camotes General Luna Siargao Cagayan Davao Kidapawan Attorney Abogado Lawyer Architect Real Estate Broker nominal damages Sales Agent Properties for Sale Looking for Buyers Design Build House and Lot for Sale for Rent Talisay City Mandaue City Lapu Lapu Lapu-Lapu City Yncierto Sesante Villanueva Ruz Jan Edmond Marc Tim Timothy temperate damages Luz liquidated damages Kristin tct transfer certificate of title tax declaration birth certificate relocation survey surveying judicial titling administrative titling patent title denr cenro foreshore lease ecc environmental compliance certificate design build architect cebu engineer interior design designer residential commercial cebu property warehouse for rent for lease marc Christian yncierto ruz jan Edmond yncierto ruz Kristin Villanueva ruz Edmond mabalot ruz marriage certificate timber land forest land watershed agricultural lot land use conversion hearing trial illegal drugs trial lawyer business corporate lawyer labor lawyer immigration law bureau of immigration cebu 9g visa search warrant warrant of arrest motion to quash information complaint police officers buy bust physical suffering shocked horrified mental anguish fright serious anxiety besmirched reputation sleepless nights wounded feelings moral shock social humiliation similar injuries Alcantara Alcoy moral damages Alegria actual damages Aloguinsan Argao Asturias Badian Balamban Bantayan Barili Boljoon Borbon Carmen Catmon Compostela Consolacion Cordova Daanbantayan Dumaguete Bais Sibulan Tampi Bacong Negros Bacolod Separation pay Resign Resignation Back wages Backwages Length of service pay benefit employee employer relationship Silay Kabankalan Daan Bantayan Dalaguete Dumanjug Ginatilan Liloan compensatory damages Madridejos Malabuyoc Medellin Minglanilla Moalboal Oslob Pilar Pinamungajan Poro Ronda Samboan San Fernando San Francisco San

whether the COMELEC committed grave abuse of discretion in not conducting a hearing for the examination of the disputed election documents

The petitioner contends that he and the private respondent have different versions of the correct computation. He insists that the COMELEC should have conducted hearings to determine where the alleged tabulation errors lie. By failing to conduct hearings, the petitioner asserts that he was denied due process and was not given the opportunity to prove that the manifest errors in the election documents in fact do not exist.

The petitioner’s claim of denial of due process does not persuade. We quote hereunder the pertinent portion of the November 23, 2004 Resolution of the COMELEC Second Division:

Despite the admission of private respondent [petitioner Alejandro herein] that there were indeed errors in the tallying of votes, pursuant to the ruling by the Supreme Court in Bince, Jr. v. Comelec, We cannot annul the proclamation of private respondent without notice and hearing. This requirement will be satisfied when the Municipal Board of Canvassers convenes and corrects the errors committed in the original tallying of votes. 

In his motion for reconsideration filed with the COMELEC en banc, the petitioner averred that he was notified, through the undated Notice signed by Angangan, that “the Municipal Board of Canvassers of Alicia, Isabela, will reconvene on December 8, 2004, at nine o’clock in the morning at the Session Hall, Sangguniang Bayan, Alicia, Isabela. xxx” 

In administrative proceedings, the essence of due process is simply an opportunity to be heard, or an opportunity to explain one’s side or opportunity to seek a reconsideration of the action or ruling complained of.  A formal trial-type hearing is not at all times and in all situations essential to due process. Verily, “to be heard” does not only mean presentation of testimonial evidence. One may also be heard through pleadings and where opportunity to be heard through pleadings is accorded, there is no denial of due process. 

This opportunity was made completely available to the petitioner who not only participated in the proceedings before the MBC but also sought reconsideration of the resolution of the COMELEC Second Division. In fact, the issues raised by the petitioner in his motion for reconsideration were extensively passed upon by the COMELEC en banc in the assailed resolution.

SOURCE: [ G.R. NO. 167101, January 31, 2006 ]MANUEL A. ALEJANDRO, PETITIONER, VS. COMMISSION ON ELECTIONS, DAMIAN L. CO, AND THE MUNICIPAL BOARD OF CANVASSERS OF ALICIA, ISABELA, RESPONDENTS. Tags: Alcantara Alcoy moral damages Alegria actual damages Aloguinsan Argao Asturias Badian Balamban Bantayan Barili Boljoon Borbon Carmen Catmon Compostela Consolacion Cordova Daanbantayan Dumaguete Bais Sibulan Tampi Bacong Negros Bacolod Separation pay Resign Resignation Back wages Backwages Length of service pay benefit employee employer relationship Silay Kabankalan Daan Bantayan Dalaguete Dumanjug Ginatilan Liloan compensatory damages Madridejos Malabuyoc Medellin Minglanilla Moalboal Oslob Pilar Pinamungajan Poro Ronda Samboan San Fernando San Francisco San Remigio Sante Fe Santander Sibonga Sogod Tabogon Tabuelan Tuburan attorney’s fees Tudela exemplary damages Camotes General Luna Siargao Cagayan Davao Kidapawan Attorney Abogado Lawyer Architect Real Estate Broker nominal damages Sales Agent Properties for Sale Looking for Buyers Design Build House and Lot for Sale for Rent Talisay City Mandaue City Lapu Lapu Lapu-Lapu City Yncierto Sesante Villanueva Ruz Jan Edmond Marc Tim Timothy temperate damages Luz liquidated damages Kristin tct transfer certificate of title tax declaration birth certificate relocation survey surveying judicial titling administrative titling patent title denr cenro foreshore lease ecc environmental compliance certificate design build architect cebu engineer interior design designer residential commercial cebu property warehouse for rent for lease marc Christian yncierto ruz jan Edmond yncierto ruz Kristin Villanueva ruz Edmond mabalot ruz marriage certificate timber land forest land watershed agricultural lot land use conversion hearing trial illegal drugs trial lawyer business corporate lawyer labor lawyer immigration law bureau of immigration cebu 9g visa search warrant warrant of arrest motion to quash information complaint police officers buy bust physical suffering shocked horrified mental anguish fright serious anxiety besmirched reputation sleepless nights wounded feelings moral shock social humiliation similar injuries

Whether the COMELEC committed grave abuse of discretion in admitting the Answer filed by Angangan and ruling that manifest errors were committed.

Petitioner Alejandro wonders how the COMELEC arrived at such a conclusion that errors were committed in the copying of results from the election returns to the statement of votes when not a single election return or a single statement of votes was presented by any party. To recall, however, in the Answer she filed with the COMELEC, Angangan, then Chairperson of the MBC of Alicia, Isabela, admitted that there was manifest error in the Certificate of Canvass and Proclamation. She likewise admitted that there was incorrect tallying, tabulation and addition of votes and prayed that “an order be issued to reconvene the Municipal Board of Canvassers, Alicia, Isabela to correct the entries made in the Certificate of Canvass and Statement of Votes by Precincts.” 

Petitioner Alejandro, however, assails the said answer contending that it was filed solely by Angangan and did not have the conformity of the other members of the MBC; nor did it show the participation of the other members in its preparation and the filing thereof considering that the MBC is a collegial body. The petitioner adds that Angangan’s answer included tabulation of votes which was not verified and that Angangan filed her answer when she was no longer a member of the MBC.

The public and private respondents assert that as then Chairperson of the MBC, Angangan had no alternative but to file an answer because she received the summons sent by the COMELEC. Hence, even on the assumption that her answer was not that of the MBC, the respondents believe that it still constitutes evidence of the highest order. For the respondents, Angangan’s allegations therein are admissions made by a party in the pleadings, and a responsible officer of the COMELEC.

The respondents’ contentions are correct. It should be added that the COMELEC possesses the power of supervision and control over Angangan, as Chairperson of the MBC, and the MBC. As such, the COMELEC thus aptly ratiocinated:

xxx [T]he statutory power of supervision and control by the COMELEC over the boards of canvassers includes the power to revise, reverse or set aside the action of the boards, as well as to do what the boards should have done, even if questions relative thereto have not been elevated by an aggrieved party to the COMELEC, for such power includes the power to initiate motu proprio or by itself such steps or actions as may be required pursuant to law. The COMELEC’s power of direct supervision and control includes such authority as reviewing the actions of the board, extending an inquiry of questions affecting the genuineness of election returns beyond the election records of the polling places involved, annulling canvass or proclamation based on incomplete returns or on incorrect or tampered returns, invalidating a canvass or proclamation made in an unauthorized meeting of the Board of Canvassers either because it lacked a quorum or because the board did not meet at all, or requiring the board to convene by deputizing and instructing the City Treasurer to convene the Boards of Canvassers for the respective localities involved. 

The petitioner avers in his memorandum that “not a single election return or a single statement of votes was presented by any party.”  In his petition filed with the Court, however, he attached a copy of the private respondent’s petition before the COMELEC which had a copy of the certificate of canvass of votes  and the disputed election returns as annexes thereto. 

The correction of manifest errors has reference to errors in the election returns, in the entries of the statement of votes by precinct/per municipality, or in the certificate of canvass.  Section 5(2), Rule 27 of the COMELEC Rules of Procedure likewise provides:

2) When the issue involves the correction of manifest errors in the tabulation or tallying of the results during the canvassing as where (1) a copy of the election returns or certificate of canvass was tabulated more than once, (2) two or more copies of the election returns of one precinct, or two or more copies of certificate of canvass were tabulated separately, (3) there had been a mistake in the copying of figures into the statement of votes or into the certificate of canvass, or (4) so-called returns from non-existent precincts were included in the canvass, and such errors could not have been discovered during the canvassing despite the exercise of due diligence and proclamation of the winning candidates had already been made. 

The following pronouncement of the COMELEC Second Division in its resolution is particularly instructive:

There is no question that errors were committed regarding the copying of the results of the elections from the Election Returns to the Statement of Votes. Both the public and private respondent admitted that errors were indeed made. They just differ as to who will be the real winner if these errors are corrected. According to public respondent, petitioner [herein private respondent] won; private respondent [herein petitioner] maintains he would still have won even if the errors were corrected.

What is involved is a simple problem of arithmetic. The Statement of Votes involved in this case does not match the entries made in the election returns.

It is thus imperative that a Municipal Board of Canvasser be immediately convened to correct with dispatch the errors committed in the tallying of votes. 

Likewise, the COMELEC en banc found that:

In terms of the third issue, the contention of the private respondent [herein petitioner], that the Commission (Second Division) gravely erred in finding that he had admitted that there were manifest errors, cannot be given credence. Going over the records of the case, errors were indeed committed regarding the copying of results of the elections from the election returns to the SOV. It is already beside the point whether or not private respondent admitted such error. 

The foregoing factual findings of the COMELEC, which are supported by substantial evidence, are binding on the Court. Hence, petitioner Alejandro’s allegation that the manifest errors were based on lack of competent proof must fail.

SOURCE: [ G.R. NO. 167101, January 31, 2006 ]MANUEL A. ALEJANDRO, PETITIONER, VS. COMMISSION ON ELECTIONS, DAMIAN L. CO, AND THE MUNICIPAL BOARD OF CANVASSERS OF ALICIA, ISABELA, RESPONDENTS. Tags: property warehouse for rent for lease marc Christian yncierto ruz jan Edmond yncierto ruz Kristin Villanueva ruz Edmond mabalot ruz marriage certificate timber land forest land watershed agricultural lot land use Alcantara Alcoy moral damages Alegria actual damages Aloguinsan Argao Asturias Badian Balamban Bantayan Barili Boljoon Borbon Carmen Catmon Compostela Consolacion Cordova Daanbantayan Dumaguete Bais Sibulan Tampi Bacong Negros Bacolod Separation pay Resign Resignation conversion hearing trial illegal drugs trial lawyer business corporate lawyer labor lawyer immigration law bureau of immigration cebu 9g visa search warrant warrant of arrest motion to quash information complaint police officers buy bust physical suffering shocked horrified mental anguish fright serious anxiety besmirched reputation sleepless nights wounded feelings moral shock social humiliation similar injuries Real Estate Broker nominal damages Sales Agent Properties for Sale Looking for Buyers Design Build House and Lot for Sale for Rent Talisay City Mandaue City Lapu Lapu Lapu-Lapu City Yncierto Sesante Villanueva Ruz Jan Edmond Marc Tim Timothy temperate damages Luz liquidated damages Kristin tct transfer certificate of title tax declaration birth certificate relocation survey surveying judicial titling administrative titling patent title denr cenro foreshore lease ecc environmental compliance certificate design build architect cebu engineer interior design designer residential commercial cebu Back wages Backwages Length of service pay benefit employee employer relationship Silay Kabankalan Daan Bantayan Dalaguete Dumanjug Ginatilan Liloan compensatory damages Madridejos Malabuyoc Medellin Minglanilla Moalboal Oslob Pilar Pinamungajan Poro Ronda Samboan San Fernando San Francisco San Remigio Sante Fe Santander Sibonga Sogod Tabogon Tabuelan Tuburan attorney’s fees Tudela exemplary damages Camotes General Luna Siargao Cagayan Davao Kidapawan Attorney Abogado Lawyer Architect

Whether the COMELEC committed grave abuse of discretion in holding that private respondent Co’s petition to annul the proclamation was timely filed.

Petitioner Alejandro characterizes private respondent Co’s petition filed with COMELEC as a “dual-purpose” petition because it expressly prayed for both the correction of manifest errors and the declaration of nullity of the petitioner’s proclamation. This tack was allegedly adopted by private respondent Co to circumvent the mandatory five-day period to file a petition to correct manifest errors. Even if the petition was one for the annulment of his proclamation, it was still allegedly filed out of time since it was filed more than 10 days following the date of proclamation.

The petitioner points out that he was proclaimed as the winning vice-mayoralty candidate on May 13, 2004; hence, private respondent Co only had until May 23, 2004 to file the petition to nullify the proclamation. Since private respondent Co’s petition was filed on May 24, 2004, or 11 days after the proclamation, then the same was filed out of time. Even if May 23, 2004 fell on a Sunday, the petitioner asserts that COMELEC Resolution No. 6624 specifically declared all Saturdays, Sundays, and holidays from October 2003 until June 30, 2004 as working days in the COMELEC.

The COMELEC Second Division treated the petition as one for the annulment of petitioner Alejandro’s proclamation as it held that:

The petition to declare the nullity of a proclamation should be within a reasonable period. Again, private respondent [herein petitioner] is correct when he said that the Supreme Court has declared that ten days is a reasonable period.

Considering however, that the tenth day after Alejandro’s proclamation fell on a Sunday, the rule is that the petition may be filed on the next working day. Although it is again true that the Commission allowed its employees to render overtime work on May 23, 2004, it would not automatically mean that those intending to file their petitions should do so on a Sunday. The rule moving a deadline to the next working day if it falls on a Sunday is an acknowledgment that majority of our people consider Sunday a day of rest. 

The COMELEC en banc affirmed the foregoing ruling.

We hold that the COMELEC correctly ruled that the petition for annulment was filed well within the reglementary period to file the same. Resolution No. 6624, which declared all Saturdays, Sundays, and holidays from October 2003 until June 30, 2004 as working days in the COMELEC, was an internal resolution intended merely for COMELEC employees. The resolution was for the guidance of the employees to report for work during weekends and holidays because of the approaching elections, and for the general public to give them more time to register as voters. It was never conceived to limit the period for filing election controversies, contests and offenses. Hence, since the last day for private respondent Co to file the petition to annul petitioner Alejandro’s proclamation fell on May 23, 2004, a Sunday, he seasonably filed the same on the next working day or on May 24, 2004.

In a catena of cases, we have held that one cannot put premium on technicalities over and above the noble and paramount duty of determining the will of the electorate. In Dela Llana v. COMELEC,  it was ruled that:

Election contests involve public interest. Technicalities and procedural barriers should not be allowed to stand if they constitute an obstacle to the determination of the true will of the electorate in the choice of their elective officials … Laws (and rules) governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technical objections. In an election case, the court has an imperative duty to ascertain by all means within its command who is the real candidate elected by the electorate. (Italics supplied)

Instead of dismissing the petition for purely technical reasons, the COMELEC correctly considered the merits thereof. xxx

The COMELEC likewise did not commit grave abuse of discretion when it treated private respondent Co’s petition as one for annulment of proclamation although it was denominated as also for correction of manifest errors. In fact, it finds support in several cases decided by the Court. For example, in Mentang v. COMELEC,  we held that where the relief sought is the correction of mathematical errors which are not attributable to incorrect entries in any of the election returns, statement of votes and certificate of canvass but in the mere computation of the votes reflected in those election documents, it is a petition for annulment/declaration of nullity of proclamation, not a petition to correct manifest errors.

In Bince, Jr. v. COMELEC,  we upheld the COMELEC resolution which set aside the proclamation of the petitioner therein as a member of the Sangguniang Panlalawigan on the basis of a petition for correction of votes in the statement of votes filed by the respondent therein:

Undoubtedly, therefore, the only issue that remains unresolved is the allowance of the correction of what are purely mathematical and/or mechanical errors in the addition of the votes received by both candidates. It does not involve the opening of ballot boxes; neither does it involve the examination and/or appreciation of ballots. The correction sought by private respondent and respondent MBCs of Tayug and San Manuel is correction of manifest mistakes in mathematical addition. Certainly, this only calls for a mere clerical act of reflecting the true and correct votes received by the candidates by the MBCs involved. In this case, the manifest errors sought to be corrected involve the proper and diligent addition of the votes in the municipalities of Tayug and San Manuel, Pangasinan.

xxx


Consequently, by margin of 72 votes, private respondent indisputably won the challenged seat in the Sangguniang Panlalawigan of the sixth district of Pangasinan. Petitioner’s proclamation and assumption into public office was therefore flawed from the beginning, the same having been based on a faulty tabulation. Hence, respondent COMELEC did not commit grave abuse of discretion in setting aside the illegal proclamation. 

In Milla v. Balmores-Laxa,  we sustained the power of the COMELEC to annul the proclamation, due to an alleged error in the tabulation of the statement of votes, of a winning candidate for municipal councilor who had taken his oath and assumed office as such. We ruled therein that:

The Statement of Votes forms the basis of the Certificate of Canvass and of the proclamation. Any error in the statement ultimately affects the validity of the proclamation.

If a candidate’s proclamation is based on a Statement of Votes which contains erroneous entries, it is null and void. It is no proclamation at all and the proclaimed candidate’s assumption of office cannot deprive the COMELEC of the power to annul the proclamation. 

Significantly, in Milla, the petition for correction of entries in the statement of votes was filed one month after the proclamation.

Hence, respondent COMELEC did not commit grave abuse of discretion in treating private respondent Co’s petition as one for the annulment of petitioner Alejandro’s proclamation and holding that the same was timely filed.

SOURCE: [ G.R. NO. 167101, January 31, 2006 ]MANUEL A. ALEJANDRO, PETITIONER, VS. COMMISSION ON ELECTIONS, DAMIAN L. CO, AND THE MUNICIPAL BOARD OF CANVASSERS OF ALICIA, ISABELA, RESPONDENTS. Tags: conversion hearing trial illegal drugs trial lawyer business corporate lawyer labor lawyer immigration law bureau of immigration cebu 9g visa search warrant warrant of arrest motion to quash information complaint police officers buy bust physical suffering shocked horrified mental anguish fright serious anxiety besmirched reputation sleepless nights wounded feelings moral shock social humiliation similar injuries Real Estate Broker nominal damages Sales Agent Properties for Sale Looking for Buyers Design Build House and Lot for Sale for Rent Talisay City Mandaue City Lapu Lapu Lapu-Lapu City Yncierto Sesante Villanueva Ruz Jan Edmond Marc Tim Timothy temperate damages Luz liquidated damages Kristin tct transfer certificate of title tax declaration birth certificate relocation survey surveying judicial titling administrative titling patent title denr cenro foreshore lease ecc environmental compliance certificate design build architect cebu engineer interior design designer residential commercial cebu property warehouse for rent for lease marc Christian yncierto ruz jan Edmond yncierto ruz Kristin Villanueva ruz Edmond mabalot ruz marriage certificate timber land forest land watershed agricultural lot land use Alcantara Alcoy moral damages Alegria actual damages Aloguinsan Argao Asturias Badian Balamban Bantayan Barili Boljoon Borbon Carmen Catmon Compostela Consolacion Cordova Daanbantayan Dumaguete Bais Sibulan Tampi Bacong Negros Bacolod Separation pay Resign Resignation Back wages Backwages Length of service pay benefit employee employer relationship Silay Kabankalan Daan Bantayan Dalaguete Dumanjug Ginatilan Liloan compensatory damages Madridejos Malabuyoc Medellin Minglanilla Moalboal Oslob Pilar Pinamungajan Poro Ronda Samboan San Fernando San Francisco San Remigio Sante Fe Santander Sibonga Sogod Tabogon Tabuelan Tuburan attorney’s fees Tudela exemplary damages Camotes General Luna Siargao Cagayan Davao Kidapawan Attorney Abogado Lawyer Architect

No employer-employee relationship existed between the parties

The appellate court, finding that “[petitioner] was hired to render professional services for a specific project’ and her “primary cause of action is for a sum of money on account of [Infinite Loop’s] alleged breach of contractual obligation to pay her agreed professional fee,’ held by Decision dated October 20, 2003 that no employer-employee relationship existed between the parties, hence, the NLRC and the Labor Arbiter have no jurisdiction over the complaint. It accordingly reversed the NLRC decision and dismissed petitioner’s complaint.

Hence, the present petition, petitioner contending that the appellate court erred when it:

A.

x x x INCONSISTENTLY RULED THAT THERE WAS NO EMPLOYER-EMPLOYEE RELATIONSHIP BETWEEN THE PARTIES BUT AT THE SAME TIME IT CITED THAT [PETITIONER] IS A PROJECT EMPLOYEE. MOREOVER, THE ASSAILED JUDGMENT IS BASED ON MISAPPRECIATION OF FACTS.

B.

x x x FAILED TO CONSIDER THE RELIEF MENTIONED IN [PETITIONER’S] COMPLAINT FOR PAYMENT OF SALARY x x x

C.

x x x RULED THAT THE SEPARATION FROM SERVICE OF [PETITIONER] BECAUSE OF THE PROJECT’S DISCONTINUANCE DID NOT RESULT TO ILLEGAL DISMISSAL.

To ascertain the existence of an employer-employee relationship, jurisprudence has invariably applied the four-fold test, to wit: (1) the manner of selection and engagement; (2) the payment of wages; (3) the presence or absence of the power of dismissal; and (4) the presence or absence of the power of control. Of these four, the last one, the so called “control test” is commonly regarded as the most crucial and determinative indicator of the presence or absence of an employer-employee relationship.

Under the control test, an employer-employee relationship exists where the person for whom the services are performed reserves the right to control not only the end achieved, but also the manner and means to be used in reaching that end.

From the earlier-quoted scope of petitioner’s professional services, there is no showing of a power of control over petitioner. The services to be performed by her specified what she needed to achieve but not on how she was to go about it.

Contrary to the finding of the Labor Arbiter, as affirmed by the NLRC, above-quoted paragraph No. 6 of the “Scope of

[petitioner’s]

Professional Services’ requiring her to “[m]ake reports and recommendations to the company management team regarding work progress, revisions and improvement of process design on a regular basis as required by company management team” does not “show that the company’s management team exercises control over the means and methods in the performance of her duties as Refinery Process Design Engineer.” Having hired petitioner’s professional services on account of her “expertise and qualifications” as petitioner herself proffers in her Position Paper, the company naturally expected to be updated regularly of her “work progress,” if any, on the project for which she was specifically hired.

In bolstering her contention that there was an employer-employee relationship, petitioner draws attention to the pay slips and Infinite Loop’s deduction of her SSS, Philhealth, and withholding tax, and to the designation of the payments to her as “salaries.”

The deduction from petitioner’s remuneration of amounts representing SSS premiums, Philhealth contributions and withholding tax, was made in the only payslip issued to petitioner, that for the period of January 16-31, 2000, the other amounts of remuneration having been documented by cash vouchers. Such payslip cannot prove the existence of an employer-employee relationship between the parties.

The cases of Equitable Banking Corp. v. NLRC and Nagusara v. NLRC should be differentiated from the present case, as the employers in these two cases did not only regularly make similar deductions from the therein complainants” remuneration but also registered and declared the complainants with the SSS and Medicare (Philhealth) as their employees.

As for the designation of the payments to petitioner as “salaries,” it is not determinative of the existence of an employer-employee relationship. “Salary” is a general term defined as “a remuneration for services given.” It is the above-quoted contract of engagement of services-letter dated September 30, 1999, together with its attachments, which is the law between the parties. Even petitioner concedes rendering service “based on the contract,” which, as reflected earlier, is bereft of a showing of power of control, the most crucial and determinative indicator of the presence of an employer-employee relationship.

WHEREFORE, the petition is DENIED for lack of merit.

Costs against petitioner.

SO ORDERED.

SOURCE: [ G.R. NO. 162401, January 31, 2006 ]CORAZON ALMIREZ, PETITIONER, VS INFINITE LOOP TECHNOLOGY CORPORATION, EDWIN R. RABINO AND COURT OF APPEALS, RESPONDENTS. Tags: Remigio Sante Fe Santander Sibonga Sogod Tabogon Tabuelan Tuburan attorney’s fees Tudela exemplary damages Camotes General Luna Siargao Cagayan Davao Kidapawan Attorney Abogado Lawyer Architect Real Estate Broker nominal damages Sales Agent Properties for Sale Looking for Buyers Design Build House and Lot for Sale for Rent Talisay City Mandaue City Lapu Lapu Lapu-Lapu City Yncierto Sesante Villanueva Ruz Jan Edmond Marc Tim Timothy temperate damages Luz liquidated damages Kristin tct transfer certificate of title tax declaration birth certificate relocation survey surveying judicial titling administrative titling patent title denr cenro foreshore lease ecc environmental compliance certificate design build architect cebu engineer interior design designer residential commercial cebu property warehouse for rent for lease marc Christian yncierto ruz jan Edmond yncierto ruz Kristin Villanueva ruz Edmond mabalot ruz marriage certificate timber land forest land watershed agricultural lot land use conversion hearing trial illegal drugs trial lawyer business corporate lawyer labor lawyer immigration law bureau of immigration cebu 9g visa search warrant warrant of arrest motion to quash information complaint police officers buy bust physical suffering shocked horrified mental anguish fright serious anxiety besmirched reputation sleepless nights wounded feelings moral shock social humiliation similar injuries Alcantara Alcoy moral damages Alegria actual damages Aloguinsan Argao Asturias Badian Balamban Bantayan Barili Boljoon Borbon Carmen Catmon Compostela Consolacion Cordova Daanbantayan Dumaguete Bais Sibulan Tampi Bacong Negros Bacolod Separation pay Resign Resignation Back wages Backwages Length of service pay benefit employee employer relationship Silay Kabankalan Daan Bantayan Dalaguete Dumanjug Ginatilan Liloan compensatory damages Madridejos Malabuyoc Medellin Minglanilla Moalboal Oslob Pilar Pinamungajan Poro Ronda Samboan San Fernando San Francisco San