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Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-30057 January 31, 1984 BRUNO O. APARRI, petitioner, vs. THE COURT OF APPEALS and LAND AUTHORITY, the latter in substitution for REMEDIOS O. FORTICH, as Chairman, ANGELINO M. BANZON, RAFAEL B. HILAO, VALERIANO PLANTILLA and SEVERO YAP, as members of the Board of Directors of the defunct National Resettlement and Rehabilitation Administration (NARRA), respondents. Enrique D. Tayag for petitioner. Magno B. Pablo and Cipriano A. Tan for respondent Land Authority.

MAKASIAR, J.: This petition for certiorari seeks to review the decision of the then Court of Appeals (now Intermediate Appellate Court under BP 129) dated September 24, 1968, affirming the decision of the then Court of First Instance (now Regional Trial Court), the dispositive portion of which is as follows: WHEREFORE, the judgment of the lower court insofar as it decrees the dismissal of the present petition for mandamus is hereby affirmed, without pronouncement as to costs (p. 50, rec.). The facts of the case are as follows: On January 15, 1960, private respondents (as members of the Board of Directors of the defunct National Resettlement and Rehabilitation Administration created under Republic Act No. 1160, approved June 18, 1954 — NARRA) approved the following resolution: RESOLUTION NO. 13 (Series of 1960) RESOLVED, as it is hereby resolved, to appoint Mr. Bruno 0. Aparri, as General Manager of the National Resettlement and Rehabilitation Administration (NARRA) with all the rights, prerogatives and compensation appurtenant thereto to take effect on January 16, 1960); RESOLVED FURTHER, as it is hereby resolved, to inform the President of the Philippines of the above appointment of Mr. Aparri (p. 2, rec.).

Pursuant thereto, private respondent Remedies O. Fortich, in her capacity as Chairman of the NARRA Board, appointed petitioner Bruno O. Aparri as reflected in the following letter: Manila, January 22, 1960 Mr. Bruno O. Aparri c/o NARRA, Manila SIR: You are hereby appointed as GENERAL MANAGER in the National Resettlement and Rehabilitation Administration (NARRA) with compensation at the rate of TWELVE THOUSAND (P12,000.00) PESOS per annum the appointment to take effect January 16,1960 . . . . REINSTATEMENT ... (p. 2, rec.). The power of the Board of Directors of the NARRA to appoint the general manager is provided for in paragraph (2),Section 8, Republic Act No. 1160 (approved June 18, 1954), to wit: Sec. 8. Powers and Duties of the Board of Directors. — The Board of Directors shall have the following powers and duties: ... 2) To appoint and fix the term of office of General Manager ..., subject to the recommendation of the Office of Economic Coordination and the approval of the President of the Philippines, .... The Board, by a majority vote of all members, may, for cause, upon recommendation of the Office of Economic Coordination and with the approval of the President of the Philippines, suspend and/or remove the General Manager and/or the Assistant General Manager (p. 46, rec., emphasis supplied). On March 15, 1962, the same Board of Directors approved the following resolution: RESOLUTION NO. 24 (Series of 1962) WHEREAS, the Chairman of the Board has transmitted to the Board of Directors the desire of the Office of the President Malacanang, Manila, to fix the term of office of the incumbent General Manager up to the close of office hours on March 31, 1962, in accordance with the provision of Section 8, sub-section 2 of R.A. No. 1160; NOW, THEREFORE, BE IT RESOLVED, as it is hereby resolved, that the Board of Directors hereby fix, as it is hereby fixed, the term of office of the incumbent General Manager of the National Resettlement and Rehabilitation Administration (NARRA) to March 31, 1962 (pp. 6-7, rec., emphasis supplied). Petitioner filed a petition for mandamus with preliminary injunction with the then Court of First Instance of Manila on March 29, 1962. The petition prayed to annul the resolution of the

NARRA Board dated March 15, 1962, to command the Board to allow petitioner to continue in office as General Manager until he vacates said office in accordance with law and to sentence the private respondents jointly and severally to pay the petitioner actual damages in the sum of P95,000.00, plus costs. On August 8, 1963, when the case was still pending decision in the lower court, Republic Act No. 3844, otherwise known as the Agricultural Land Reform Code, took effect. The said law abolished the NARRA (Sec. 73, R.A. 3844) and transferred its functions and powers to the Land Authority. On October 21, 1963, the then Court of First Instance of Manila rendered judgment, finding "that this case has become academic by reason of the approval of the Agricultural Land Reform Code (Republic Act No. 3844) and thereby dismissing the instant petition without pronouncement as to costs" (p. 5, rec.). On appeal to the then Court of Appeals, the appellate tribunal speaking through then Mr. Justice Antonio C. Lucero, affirmed the decision of the lower court. in dismissing the petition for mandamus. Pertinent provisions of the decision are as follows: xxx xxx xxx In the light of the foregoing facts, it is evident that Bruno O. Aparri accepted the position of General Manager without fixed term and his appointment is, in essence, terminable at the pleasure of the appointing power which, in this case, is the Board of Directors. Where, as in the case at bar, the appointing officer, that is, the Board of Directors, had fixed the term of office of the incumbent Manager to end on March 31, 1962, the replacement of Bruno O. Aparri is not removal but by reason of the term of his office which is one of the recognized modes of terminating official relations.Considering that the term of office of the General Manager of the NARRA is not fixed by law nor has it been fixed by the Board of Directors at the time of his appointment although it had the power to do so, it is obvious that the term of office of herein petitioner Bruno O. Aparri expired on March 31, 1962and his right to hold the said office was thereby extinguished. In other words, Bruno O. Aparri cessation from office invokes no removal but merely the expiration of the term of office which was within the power of the Board of Directors to fix. Hence, Bruno O. Aparri continues only for so long as the term of his office has not ended (Alba vs. Hon. Jose N. Evangelists, 100 Phil. 683) [Decision of the Court of Appeals, pp. 48-49, rec., emphasis supplied]. The motion for reconsideration by petitioner in the then Court of Appeals was denied on January 10, 1969. On January 20, 1969, the petitioner filed a petition for certiorari to review the decision of the then Court of Appeals dated September 24, 1968 (pp. 1-41, rec.). The same was initially denied for lack of merit in a resolution dated January 27, 1969 (p. 55, rec.); but on motion for reconsideration filed on February 11, 1969, the petition was given due course (p. 66, rec.). The only legal issue sought to be reviewed is whether or not Board Resolution No. 24 (series of 1962) was a removal or dismissal of petitioner without cause.

WE affirm. WE hold that the term of office of the petitioner expired on March 31, 1962. A public office is the right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercise by him for the benefit of the public ([Mechem Public Offices and Officers,] Sec. 1). The right to hold a public office under our political system is therefore not a natural right. It exists, when it exists at all only because and by virtue of some law expressly or impliedly creating and conferring it (Mechem Ibid., Sec. 64). There is no such thing as a vested interest or an estate in an office, or even an absolute right to hold office. Excepting constitutional offices which provide for special immunity as regards salary and tenure, no one can be said to have any vested right in an office or its salary (42 Am. Jur. 881). The National Resettlement and Rehabilitation Administration (NARRA) was created under Republic Act No. 1160 (approved June 18,1954), which provides that: Sec. 2. NATIONAL RESETTLEMENT AND REHABILITATION ADMINISTRATION — ... there is hereby created a corporation to be known as National Resettlement and Rehabilitation Administration hereafter referred to as "NARRA" to perform under the supervision and control of the President of the Philippines, through the Office of Economic Coordinator all the duties and functions of the Bureau of Lands as provided for in Commonwealth Act numbered Six Hundred and Ninety-one, as amended, and such other duties as are hereinafter specified in this Act. It shall be headed by a General Manager and an Assistant Manager who shall be appointed as hereinafter provided (emphasis supplied). Paragraph 2, Section 8 of Republic Act 1160 expressly gives to the Board of Directors of the NARRA the power "to appoint and fix the term of office of the general manager ... subject to the recommendation of Economic Coordination and the approval of the President of the Philippines" (emphasis supplied). By "appointment" is meant the act of designation by the executive officer, board or body, to whom that power has been delegated, of the individual who is to exercise the functions of a given office (Mechem op. cit., Sec. 102). When the power of appointment is absolute, and the appointee has been determined upon, no further consent or approval is necessary, and the formal evidence of the appointment, the commission, may issue at once. Where, however, the assent or confirmationof some other officer or body is required, the Commission can issue or the appointment is complete only when such assent or condition is obtained (People vs. Bissell, 49 Cal. 407). To constitute an "appointment" to office, there must be some open, unequivocal act of appointment on the part of the appointing authority empowered to make it, and it may be said that an appointment to office is made and is complete when the last act required of the appointing authority has been performed (Molnar vs. City of Aurora, 348 N.E. 2d 262, 38 III App. 3d 580). In either case, the appointment becomes complete when the last act required of the appointing power is performed (State vs. Barbour, 53 Conn. 76, 55 Am. Rep. 65).

The petitioner was appointed as general manager pursuant to Resolution No. 13 (series of 1960 — approved on January 15, 1960) of the Board of Directors. A careful perusal of the resolution points out the fact that the appointment is by itself incomplete because of the lack of approval of the President of the Philippines to such appointment. Thus, We note that Resolution No. 13 states: xxx xxx xxx ... RESOLVED FURTHER, as it is hereby resolved, to inform the President of the Philippines of the above appointment of Mr. Aparri (p. 2, rec.). Presumably, the Board of Directors of the NARRA expected that such appointment be given approval by the then President. Lacking such approval by the President as required by the law (par. 2, Sec. 8 of R.A. 1160), the appointment of petitioner was not complete. The petitioner can, at best, be classified as a de facto officer because he assumed office "under color of a known appointment or election, void because the officer was not eligible or because there was a want of power in the electing body, or by reasons of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public" (State vs. Carroll, 38 Conn. 449, 9Am. Rep. 409). However, such appointment was made complete upon approval of Resolution No. 24 (series of 1962-approved March 15, 1962) wherein the President submitted to the Board his "desire" to fix the term of office of the petitioner up to the close of office hours on March 31, 1962. The questioned resolution corrected whatever requisite lacking in the earlier Resolution No. 13 of the respondent Board. Resolution No. 24, approved by the respondent Board and pursuant to "the desire of the President" legally fixed the term of office of petitioner as mandated by paragraph 2, Section 8 of Republic Act 1160. The word "term" in a legal sense means a fixed and definite period of time which the law describes that an officer may hold an office (Sueppel vs. City Council of Iowa City, 136 N.W. 2D 523, quoting 67 CJS OFFICERS, secs. 42, 54[1]). According to Mochem, the term of office is the period during which an office may be held. Upon the expiration of the officer's term, unless he is authorized by law to hold over, his rights, duties and authority as a pubic officer must ipso facto cease (Mechem, op. cit., Secs. 396-397). In the law on Public Officers, the most natural and frequent method by which a public officer ceases to be such is by the expiration of the term for which he was elected or appointed. The question of when this event has occurred depends upon a number of considerations, the most prominent of which, perhaps, are whether he was originally elected or appointed for a definite term or for a term dependent upon some act or event ... (Mechem op. cit., Sec. 384). It is necessary in each case to interpret the word "term" with the purview of statutes so as to effectuate the statutory scheme pertaining to the office under examination (Barber vs. Blue, 417 P.2D 401, 51 Cal. Rptr. 865, 65 C.2d N5). In the case at bar, the term of office is not fixed by law. However, the power to fix the term is vested in the Board of Directors subject to the recommendation of the Office of Economic Coordination and the approval of the President of the Philippines. Resolution No. 24 (series of 1962) speaks of no removal but an expiration of the term of office of the petitioner. The statute is undeniably clear. It is the rule in statutory construction that if the words and phrase of a statute are not obscure or ambiguous, its

meaning and the intention of the legislature must be determined from the language employed, and, where there is no ambiguity in the words, there is no room for construction (Black on Interpretation of Laws, Sec. 51). The courts may not speculate as to the probable intent of the legislature apart from the words (Hondoras vs. Soto, 8 Am. St., Rep. 744). The reason for the rule is that the legislature must be presumed to know the meaning of words, to have used words advisedly and to have expressed its intent by the use of such words as are found in the statute (50 Am. Jur. p. 212). Removal entails the ouster of an incumbent before the expiration of his term (Manalang vs. Quitoriano, 50 O.G. 2515). The petitioner in this case was not removed before the expiration of his term. Rather, his right to hold the office ceased by the expiration on March 31, 1962 of his term to hold such office. WHEREFORE, THE DECISION APPEALED FROM IS HEREBY AFFIRMED. WITHOUT COSTS. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. Nos. 95275-76

July 23, 1991

SIXTO DE LA VICTORIA, petitioner, vs. COMMISSION ON ELECTIONS, HEIRS OF GENOVEVA S. MEDINA represented by FAUSTINO MESINA, JR., JUAN ALAO and VICTOR S. MESINA, respondents. Constante P. Pimentel, et al. for petitioner. Regulo M. Bantasan for the Intervenor Aquilino Cantiga, Jr. Sixto, Brillantes, Jr. for Heirs of Genoveva S. Mesina. Evergisto B. Escalon for respondents Juan Alao and Victor S. Mesina.

GRIÑO-AQUINO, J.: This petition for certiorari with preliminary injunction and/or restraining order assails the order of the Commission on Elections En Banc (COMELEC, for short) which allowed the substitution of the heirs of a deceased candidate as protestee in the election protest filed by her rival for the office of municipal mayor of Albuera, Leyte, in the local elections on February 1, 1988, and allowed the same heirs to appeal the decision of the Regional Trial Court declaring her rival (the protestant and herein petitioner), as the actual winner in that election. The contenders for the mayorship of Albuera, Leyte in the special local elections held on February 1, 1988 were petitioner Sixto De la Victoria who obtained 5,093 votes, the late Genoveva S. Mesina who obtained 5,103 votes, and Loly C. Fian who garnered 982 votes. On February 3, 1988, the Municipal Board of Canvassers proclaimed Mesina as the duly elected municipal mayor of Albuera, Leyte. Elected and proclaimed vice-mayor was her running-mate, Aquilino Cantiga, Jr. In due time, the defeated mayoral candidate, De la Victoria, filed two pre-proclamation cases (SPC Nos. 88-560 and 88-614) in the COMELEC but even while they were still pending in the commission, he filed on October 21, 1988 in the Regional Trial Court (RTC), Branch 14 in Baybay, Leyte, an election protest Ex Abundante Cautela against Mesina (docketed as Election Protest No. B-44) with claims for damages, attorney's fees, and costs. Mesina filed an Answer with counterclaims for damages and attorney's fees. On July 22, 1989, Mesina died and was substituted as protestee by her Vice-Mayor, Aquilino Cantiga, Jr., who assumed the mayorship by operation of law. Neither Mesina's heirs (the private respondents herein), nor her counsel informed the trial court about her death. On May 16, 1990, De la Victoria withdrew from the COMELEC En Banc, his pre-proclamation complaints (SPC Cases Nos. 88-560 and 88-614). The COMELEC granted his motion. On June 18, 1990, the incumbent Mayor, Aquilino Cantiga, Jr., filed in the Regional Trial Court (RTC) a verified "Petition to Intervene" in the election protest of De la Victoria. On June 20, 1990, De la Victoria filed a "Manifestation/Motion" waiving his claim for damages and costs against the deceased protestee, Mesina. The trial court granted the motion (p. 389, Rollo). On June 22, 1990, counsel for Mesina filed a Notice of Death and Motion for Substitution of the deceased protestee by her heirs, and requested that his motion be set for hearing on July 2, 1990. De la Victoria opposed the motion for substitution on the ground that the heirs of Mesina are not the "real party in interest" and that since he (De la Victoria) had waived his claim for damages against the deceased, her heirs have no more right to intervene in the case or have

been "erased from the picture altogether" (Lomugdang vs. Javier, 21 SCRA 402 and Vda. de Mesa vs. Mencias, 18 SCRA 533). On July 2, 1990, the trial court noted the Motion for Substitution filed by the heirs of Mesina and ruled that De la Victoria's waiver of his claim for damages against the said protestee rendered the Motion for Substitution without basis in law, or moot and academic. On July 17, 1990, the trial court promulgated a decision in the Election Protest No. B-44, declaring the protestant, De la Victoria, as the duly elected Mayor of Albuera, Leyte, by a margin of 134 votes over the deceased protestee, Genoveva S. Mesina. Two days later, on July 19, 1990, the heirs of Mesina appealed to the COMELEC by a petition for certiorari and prohibition with preliminary injunction to restrain the trial court from rendering a decision in Election Protest No. B-44 or conducting further proceedings therein. On July 20, 1990, the heirs of Mesina filed in the trial court a Notice of Appeal. De la Victoria filed an "Urgent Motion to Disregard Notice of Appeal" on the ground that the heirs had no standing in the case as they failed to appeal the July 2, 1990 Order of the trial court denying their motion for substitution. The trial court in its Order of July 23, 1990, denied the Notice of Appeal and ordered its expulsion from the record of the case. It held that the intervenor, ViceMayor Cantiga, who succeeded the deceased protestee by operation of law, not the "heirs" of the deceased, is the "real party in interest" in the continuation of the election protest after the demise of the protestee. Moreover, upon the waiver by De la Victoria of his claim for damages against Mesina, the latter's heirs had no more legal interest to defend in her behalf. On July 24, 1990, De la Victoria filed a motion for execution of the trial court's decision. It was granted by the court on July 25, 1990. Promptly, on the same day, De la Victoria was sworn into office as the duly elected Mayor of Albuera. As earlier mentioned, the heirs of Mesina appealed that decision to the COMELEC by a petition for certiorari and prohibition with a prayer for the issuance of a writ of preliminary injunction (SPR No. 9-90). In his Comment on the petition, De la Victoria adverted to the decision dated July 17, 1990 of the trial court which became final and executory when no appeal was taken therefrom. On the same date, the COMELEC denied the heirs' application for a temporary restraining order (TRO), but set the case for hearing before the COMELEC En Banc for "preliminary determination of the sufficiency of the allegations in the main issue raised by said respondents-heirs." De la Victoria opposed the petition. On August 6, 1990, the heirs filed in the COMELEC another petition for certiorari and mandamus (SPR No. 11-90), praying that the execution of the decision of the trial court in Election Protest No. B-44 be stopped.

On August 8, 1990, De la Victoria assumed office as Mayor of Albuera, Leyte. On August 13, 1990, the COMELEC issued a status quo Order directing De la Victoria to answer the petition in SPR No. 11-90, and setting the petition for preliminary injunction for hearing on August 23, 1990. On September 27, 1990, the COMELEC set aside the trial court's Order dated July 2, 1990 denying the motion for substitution of the heirs of the deceased protestee, and the Order dated July 23, 1990 which denied due course to the Notice of Appeal of the heirs from its decision dated July 17, 1990. It declared the writ of execution null and void and ordered the elevation to it of the records of the case pursuant to Rule 22 of the COMELEC Rules of Procedure (on appeal from election protest decided by trial courts of general jurisdiction). De la Victoria has come to us for relief through this petition for certiorari with prayer for the issuance of a temporary restraining order (TRO) where the main issues raised are: (1) whether the heirs of the deceased protestee in an election protest may be considered as real party-in-interest even if the vice-mayor has been allowed to intervene and the protestant had waived his claim for damages and costs in the proceedings; and (2) whether said heirs may appeal the decision in the election protest (EPC No. B-44). After careful deliberation, the Court is persuaded that the answer to both questions is no. The late Genoveva Mesina's claim to the contested office was not in any sense a transmissible right that devolved upon her surviving spouse and her children (herein private respondents) after her death. "Public office is personal to the incumbent and is not a property which passes to his heirs" (Santos vs. Secretary of Labor, 22 SCRA 848). Private respondents' only interest in the outcome of the case is limited to no more than their interest in defending her against the protestant's claim for damages and costs (which the protestant, herein petitioner, has already waived). They may no longer prosecute her own counter-claim for damages against the protestant for that was extinguished when death terminated her light to occupy the contested office of mayor of Albuera, Leyte. In the case of Vda. de Mesa vs. Mencias, 18 SCRA 533, 545, we ruled: The same cannot, however, be said of the protestee's widow or of the local Liberal Party chapter of Muntinlupa. The protestee's claim to the contested office is not in any sense a right transmitted to his widow or heirs. Said widow's remaining interest in the outcome of the case is limited to no more than the possible award of costs against the deceased protestee. Besides not being such an interest as would justify her substitution for her deceased husband as an indispensable legal representative, the right to such an award if eventually made has already been waived by protestant Argana. This effectively withdraws the widow from the picture altogether. Much less has the local Liberal Party Chapter any claim to substitution. Not being duly incorporated as a juridical person, it can have no personality to sue or be sued as such. And while it conceivably may derive some indirect benefit consequent to the resolution

of the contest in favor of the deceased protestee, neither the chapter itself nor the officers thereof would become entitled thereby to any right to the contested office in case of a favorable judgment, nor, for that matter, do they stand to sustain any direct prejudice in case of an adverse one. No basis therefore exist upon which to predicate their claim to substitution. (Emphasis supplied). This ruling was not a mere obiter as the COMELEC erroneously supposed. Vice Mayor Aquilino Cantiga's accession, by operation of law, to the position of Municipal Mayor upon the death of Mesina on July 22, 1989, automatically made him the real party-ininterest in the election contest for his right to hold the office of municipal mayor is in jeopardy of being lost should De la Victoria win Ms protest. Thus did this Court hold in Lomugdang vs. Javier, 21 SCRA 403: The vice-mayor elect has the status of a real party-in-interest in the continuation of the proceedings and is entitled to intervene therein. For if the protest succeeds and the protestee is unseated, the vice-mayor succeeds to the office of mayor that becomes vacant if the one duly elected cannot assume the post. This ruling was reiterated in Unda vs. COMELEC (G.R. No. 94090, October 19, 1990): Now under the Local Government Code, the vice-mayor stands next in line of succession to the mayor in case of a permanent vacancy in the latter's position. Upon the death of the protestee mayor in the case at bar, petitioner, as then incumbent vice-mayor, succeeded by operation of law to the vacated office and is ordinarily entitled to occupy the same for the unexpired term thereof. The outcome of the election contest necessarily and primarily bears upon his right to his present position and he is the person directly concerned in the fair and regular conduct of the election in order that the true will of the electorate will be upheld. His status as a real party-in-interest in the continuation of said case cannot thus be disputed. (Emphasis supplied.) On the procedural aspects of the case, we find the following observations of the Solicitor General in his Consolidated Comment dated January 8, 1991, to be well taken: . . . respondent COMELEC acted with grave abuse of discretion in giving due course to the [private respondents'] petitions for certiorari filed in SPR Nos. 9-90 and 11-90 filed on August 6, 1990 to set aside the final and executory decision of the trial court promulgated on July 18, 1990, far beyond the 5-day period allowed by [Section 22, Rule 35] Comelec Rules of Procedure, (p. 410, Rollo.) Respondent COMELEC further gravely abused its discretion by issuing a "permanent" and final injunction to prevent the execution of said final and executory Decision dated July 17, 1990 of the trial court, without the required bond contrary to its own Rule 30, Section 4, COMELEC Rules of Procedure. (p. 411, Rollo.)

However, these issues have been rendered moot and academic by the COMELEC's order of January 23, 1991 dismissing the "reinstated" appeal of the private respondents (p. 447, Rollo), for failure to file their Appellant's Brief on December 9, 1990, the last day for filing the same, their Motion for Extension of Time to File said Appellant's Brief having been previously denied by the COMELEC for being a prohibited pleading under Section 1(c) of Rule 13 of the COMELEC Rules of Procedure, in relation to Section 9(b) Rule 22 of the COMELEC Rules of Procedure, The COMELEC's dismissal order reads: Consequently, the dismissal of the herein appeal case pursuant to the Comelec Rules of Procedure renders the decision of the Regional Trial Court of Leyte, Branch XIV dated July 17, 1990, as FINAL AND EXECUTORY. (pp. 459-460, Rollo.) On January 28, 1991, petitioner De la Victoria reassumed the office of Mayor of Albuera, Leyte (p. 460, Rollo). WHEREFORE, finding merit in the petition for certiorari, the same is hereby GRANTED, with costs against private respondents.1âwphi1 The proclamation of Sixto de la Victoria as mayor of Albuera, Leyte, is upheld. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Sarmiento, Medialdea, Regalado and Davide, Jr., JJ., concur. Gancayco, J., is on leave.

EN BANC [G.R. No. 124374. December 15, 1999] ISMAEL A. MATHAY JR., in his capacity as MAYOR OF QUEZON CITY, petitioner, vs. COURT OF APPEALS, CIVIL SERVICE COMMISSION, EDUARDO A. TAN, LOURDES M. DE GUZMAN, MANUEL CHUA, ANSELMO MATEO, CHRISTOPHER SANTOS, BUENAVENTURA PUNAY, ENRICO BANDILLA, FELINO CAMACHO, DANTE E. DEOQUINO, JAIME P. URCIA, JESUS B. REGONDOLA, ROMUALDO LIBERATO, CESAR FRANCISCO, WILLIAM PANTI, JR., MICHAEL A. JACINTO and CESAR DACIO, respondents. [G.R. No. 126354. December 15, 1999] CIVIL SERVICE COMMISSION, petitioner, vs. THE HON. COURT OF APPEALS and ISMAEL A. MATHAY, JR., respondents. [G.R. No. 126366. December 15, 1999] ISMAEL A. MATHAY, JR., in his capacity as MAYOR OF QUEZON CITY, petitioner, vs. COURT OF APPEALS, CIVIL SERVICE COMMISSION and SANDY C. MARQUEZ, respondents. DECISION YNARES-SANTIAGO, J.: Before this Court are three consolidated petitions[1] filed under Rule 45 of the Revised Rules of Court. The facts behind the consolidated petitions are undisputed. During his term as Mayor of Quezon City, Mr. Brigido R. Simon appointed private respondents[2] to positions in the Civil Service Unit (CSU) of the local government of Quezon

City. Civil Service Units were created pursuant to Presidential Decree No. 51 which was allegedly signed into law on November 15 or 16, 1972. On February 23, 1990, the Secretary of Justice rendered Opinion No. 33, stating that Presidential Decree No. 51 was never published in the Official Gazette. Therefore, conformably with our ruling in Tanada vs. Tuvera[3] the presidential decree is deemed never in force or effect and therefore cannot at present, be a basis for establishment of the CSUs . . . .[4] On June 4, 1990, the Civil Service Commission issued Memorandum Circular No. 30, directing all Civil Service Regional or Field Offices to recall, revoke and disapprove within one year from issuance of the said Memorandum, all appointments in CSUs created pursuant to Presidential Decree No. 51 on the ground that the same never became law. Among those affected by the revocation of appointments are private respondents in these three petitions. For Quezon City CSU employees, the effects of the circular were temporarily cushioned by the enactment of City Ordinance No. NC-140, Series of 1990, which established the Department of Public Order and Safety (DPOS). At the heart of these petitions is Section 3 of the Ordinance which provides: Sec. 3. The present personnel of the Civil Security Unit, Traffic Management Unit, AntiSquatting and Surveillance and Enforcement Team, and Disaster Coordinating Council are hereby absorbed into the department of public order and safety established under Section one hereof to be given appropriate position titles without reduction in salary, seniority rights and other benefits. Funds provided for in the 1990 Budget for the absorbed offices shall be used as the initial budgetary allocation of the Department. (Underscoring ours). Despite the provision on absorption, the regular and permanent positions in the DPOS were not filled due to lack of funds for the new DPOS and the insufficiency of regular and permanent positions created. Mayor Brigido R. Simon remedied the situation by offering private respondents contractual appointments for the period of June 5, 1991 to December 31, 1991. The appointments were renewed by Mayor Simon for the period of January 1, 1992 to June 30, 1992. On May 11, 1992, petitioner Ismael A. Mathay, Jr. was elected Mayor of Quezon City. On July 1, 1992, Mayor Mathay again renewed the contractual appointments of all private respondents effective July 1 to July 31, 1992. Upon their expiry, these appointments, however, were no longer renewed. The non-renewal by Quezon City Mayor Ismael A. Mathay, Jr. of private respondents appointments became the seed of discontent from which these three consolidated petitions grew. We discuss the merits of the petitions of Mayor Ismael A. Mathay, Jr. jointly.

G.R. No. 124374 and G.R. No. 126366

After the non-renewal of their appointments, private respondents in these two petitions appealed to the Civil Service Commission. The CSC issued separate resolutions holding that the reappointment of private respondents to the DPOS was automatic, pursuant to the provision on absorption in Quezon City Ordinance No. NC-140, Series of 1990,[5] and ordering their reinstatement to their former positions in the DPOS.[6] Petitioner brought petitions for certiorari to this Court,[7] to annul the resolutions but, in accordance with Revised Administrative Circular No. 1-95, the petition were referred to the Court of Appeals. As stated, the Court of Appeals dismissed the petitions for certiorari. In the instant petition for review, petitioner asserts that the Court of Appeals erred when it ruled that respondent Civil Service Commission has the authority to direct him to reinstate private respondents in the DPOS. We agree with petitioner. The law applicable is B.P. 337 or the old Local Government Code and not the Local Government Code of 1992 which became effective only on January 1, 1992, when the material events in this case transpired. Applying the said law, we find that the Civil Service Commission erred when it applied the directives of Ordinance NC-140 and in so doing ordered petitioner to reinstate private respondents to positions in the DPOS. Section 3 of the said Ordinance is invalid for being inconsistent with B.P. 337. We note that Section 3 of the questioned Ordinance directs the absorption of the personnel of the defunct CSU into the new DPOS. The Ordinance refers to personnel and not to positions. Hence, the city council or sanggunian, through the Ordinance, is in effect dictating who shall occupy the newly created DPOS positions. However, a review of the provisions of B.P. 337 shows that the power to appoint rests exclusively with the local chief executive and thus cannot be usurped by the city council or sanggunian through the simple expedient of enacting ordinances that provide for the absorption of specific persons to certain positions. In upholding the provisions of the Ordinance on the automatic absorption of the personnel of the CSU into the DPOS without allowance for the exercise of discretion on the part of the City Mayor, the Court of Appeals makes the sweeping statement that the doctrine of separation of powers is not applicable to local governments.[8] We are unable to agree. The powers of the city council and the city mayor are expressly enumerated separately and delineated by B.P. 337. The provisions of B.P. 337 are clear. As stated above, the power to appoint is vested in the local chief executive.[9] The power of the city council or sanggunian, on the other hand, is limited to creating, consolidating and reorganizing city officers and positions supported by local funds. The city council has no power to appoint. This is clear from Section 177 of B.P.

337 which lists the powers of the sanggunian. The power to appoint is not one of them. Expressio unius est exclusio alterius.[10] Had Congress intended to grant the power to appoint to both the city council and the local chief executive, it would have said so in no uncertain terms. By ordering petitioner to reinstate private respondents pursuant to Section 3 of the Ordinance, the Civil Service Commission substituted its own judgment for that of the appointing power. This cannot be done. In a long line of cases,[11] we have consistently ruled that the Civil Service Commissions power is limited to approving or disapproving an appointment. It does not have the authority to direct that an appointment of a specific individual be made. Once the Civil Service Commission attests whether the person chosen to fill a vacant position is eligible, its role in the appointment process necessarily ends. The Civil Service Commission cannot encroach upon the discretion vested in the appointing authority. The Civil Service Commission argues that it is not substituting its judgment for that of the appointing power and that it is merely implementing Section 3 of Ordinance NC-140. The Ordinance refers to the personnel of the CSU, the identities of which could not be mistaken. The resolutions of the Civil Service Commission likewise call for the reinstatement of named individuals. There being no issue as to who are to sit in the newly created DPOS, there is therefore no room left for the exercise of discretion. In Farinas vs. Barba,[12] we held that the appointing authority is not bound to appoint anyone recommended by the sanggunian concerned, since the power of appointment is a discretionary power. When the Civil Service Commission ordered the reinstatement of private respondents, it technically issued a new appointment.[13] This task, i.e. of appointment, is essentially discretionary and cannot be controlled even by the courts as long as it is properly and not arbitrarily exercised by the appointing authority. In Apurillo vs. Civil Service Commission, we held that appointment is essentially a discretionary power and must be performed by the officer in which it is vested.[14] The above premises considered, we rule that the Civil Service Commission has no power to order petitioner Ismael A. Mathay, Jr. to reinstate private respondents. Petitioner similarly assails as error the Court of Appeals ruling that private respondents should be automatically absorbed in the DPOS pursuant to Section 3 of the Ordinance. In its decision of March 21, 1996 the Court of Appeals held: It is clear however, that Ordinance No. NC-140, absorbing the present personnel of the Civil Security Agent Unit in the DPOS was earlier enacted, particularly on March 27, 1990, thus, private respondents were still holders of de jure appointments as permanent regular employees at the time, and therefore, by operation of said Ordinance private

respondents were automatically absorbed in the DPOS effectively as of March 27, 1990.[15] (Underscoring ours.) The decision is based on the wrong premise. Even assuming the validity of Section 3 of the Ordinance, the absorption contemplated therein is not possible. Since the CSU never legally came into existence, the private respondents never held permanent positions. Accordingly, as petitioner correctly points out,[16] the private respondents appointments in the defunct CSU - - were invalid ab initio. Their seniority rights and permanent status did not arise since they have no valid appointment. For them to enter the Civil Service after the revocation and cancellation of their invalid appointment, they have to be extended an original appointment, subject again to the attesting power of the Civil Service Commission. Being then not members of the Civil Service as of June 4, 1991, they cannot be automatically absorbed/reappointed/appointed/reinstated into the newly created DPOS. (Underscoring ours) It is axiomatic that the right to hold public office is not a natural right. The right exists only by virtue of a law expressly or impliedly creating and conferring it.[17] Since Presidential Decree 51 creating the CSU never became law, it could not be a source of rights. Neither could it impose duties. It could not afford any protection. It did not create an office. It is as inoperative as though it was never passed. In Debulgado vs. Civil Service Commission[18] we held that a void appointment cannot give rise to security of tenure on the part of the holder of the appointment. While the Court of Appeals was correct when it stated that the abolition of an office does not mean the invalidity of appointments thereto,[19] this cannot apply to the case at bar. In this case, the CSU was not abolished. It simply did not come into existence as the Presidential Decree creating it never became law. At the most, private respondents held temporary and contractual appointments. The nonrenewal of these appointments cannot therefore be taken against petitioner. In Romualdez III vs. Civil Service Commission[20] we treated temporary appointments as follows: The acceptance by the petitioner of a temporary appointment resulted in the termination of official relationship with his former permanent position. When the temporary appointment was not renewed, the petitioner had no cause to demand reinstatement thereto. (Underscoring ours.) Another argument against the concept of automatic absorption is the physical and legal impossibility given the number of available positions in the DPOS and the number of personnel to be absorbed.[21] We note that Section 1 of Ordinance NC-140 provides:

There is hereby established in the Quezon City Government the Department of Public Order and Safety whose organization, structure, duties, functions and responsibilities are as provided or defined in the attached supporting documents consisting of eighteen (18) pages which are made integral parts of this Ordinance. A review of the supporting documents shows that Ordinance No. NC-140 allowed only two slots for the position of Security Officer II with a monthly salary of P4,418.00 and four slots for the position of Security Agent with a monthly salary of P3,102.00. The limited number of slots provided in the Ordinance renders automatic absorption unattainable, considering that in the defunct CSU there are twenty Security Officers with a monthly salary of P4,418.00 and six Security Agents with a monthly salary of P3,102.00. Clearly, the positions created in the DPOS are not sufficient to accommodate the personnel of the defunct CSU, making automatic absorption impossible. Considering that private respondents did not legally hold valid positions in the CSU, for lack of a law creating it, or the DPOS, for lack of a permanent appointment to the said agency, it becomes unnecessary to discuss whether their acceptance of the contractual appointments constitutes an abandonment or waiver of such positions. It escapes us how one can relinquish or renounce a right one never possessed. A person waiving must actually have the right which he is renouncing. G.R. 126354

In this case, petitioner, Civil Service Commission seeks the reversal of the decision of the Court of Appeals of July 5, 1996, which overturned CSC Resolution Nos. 955040 and 932732 and held that the Civil Service Commission has no authority to compel the mayor of Quezon City to reinstate Jovito C. Labajo to the DPOS. The standing of petitioner Civil Service Commission to bring this present appeal is questionable. We note that the person adversely affected by the Court of Appeals decision, Jovito C. Labajo has opted not to appeal. Basic is the rule that every action must be prosecuted or defended in the name of the real party in interest.[22] A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. In Ralla vs. Ralla we defined interest as material interest, an interest in issue and to be affected by the decree, as distinguished from mere interest in the question involved, or mere incidental interest.[23] As a general rule, one having no right or interest to protect cannot invoke the jurisdiction of the court as a party-plaintiff in an action.

In the case at bar, it is evident that Jovito C. Labajo, not the Civil Service Commission, is the real party in interest. It is Jovito C. Labajo who will be benefited or injured by his reinstatement or non-reinstatement. We are aware of our pronouncements in the recent case of Civil Service Commission v. Pedro Dacoycoy[24] which overturned our rulings in Paredes vs. Civil Service Commission,[25] Mendez vs. Civil Service Commission[26] and Magpale vs. Civil Service Commission.[27] In Dacoycoy, we affirmed the right of the Civil Service Commission to bring an appeal as the aggrieved party affected by a ruling which may seriously prejudice the civil service system. The aforementioned case, however, is different from the case at bar. Dacoycoy was an administrative case involving nepotism whose deleterious effect on government cannot be overemphasized. The subject of the present case, on the other hand, is reinstatement. We fail to see how the present petition, involving as it does the reinstatement or nonreinstatement of one obviously reluctant to litigate, can impair the effectiveness of government. Accordingly, the ruling in Dacoycoy does not apply. To be sure, when the resolutions of the Civil Service Commission were brought before the Court of Appeals, the Civil Service Commission was included only as a nominal party. As a quasi-judicial body, the Civil Service Commission can be likened to a judge who should detach himself from cases where his decision is appealed to a higher court for review.[28] In instituting G.R. No. 126354, the Civil Service Commission dangerously departed from its role as adjudicator and became an advocate. Its mandated function is to hear and decide administrative cases instituted by or brought before it directly or on appeal, including contested appointments and to review decisions and actions of its offices and agencies,[29] not to litigate. Therefore, we rule that the Civil Service Commission has no legal standing to prosecute G.R. No. 126354. WHEREFORE, the petitions of Ismael A. Mathay in G.R. No.124374 and G.R. No. 126366 are GRANTED and the decisions of the Court of Appeals dated March 21, 1996 and January 15, 1996 are REVERSED and SET ASIDE. The petition of the Civil Service Commission in G.R. No. 126354 is DISMISSED for lack of legal standing to sue. The assailed decision of the respondent Court of Appeals dated July 5, 1996 is AFFIRMED. No costs. SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, and De Leon, Jr., JJ., concur. Melo, and Vitug, JJ., in the result.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 110544 October 17, 1995 REYNALDO V. TUANDA, Mayor of the Municipality of Jimalalud, Negros Oriental, HERMINIGILDO FABURADA, (former Vice-Mayor), SANTOS A. VILLANUEVA, Incumbent Member of the Sangguniang Bayan, MANUEL LIM, NICANOR R. AGOSTO, ERENIETA K. MENDOZA MAXIMINO A. VIERNES, HACUBINA V. SERILLO, ILUMINADO D. ESTRELLANES, and FORMER MEMBERS OF THE SANGGUNIANG BAYAN OF JIMALALUD, NEGROS ORIENTAL, petitioners, vs. THE HONORABLE SANDIGANBAYAN, (THIRD DIVISION), BARTOLOME BINAOHAN and DELIA ESTRELLANES, respondents.

KAPUNAN, J.: Petitioners institute this special civil action for certiorari and prohibition under Rule 65 of the Revised Rules of Court to set aside the resolution of the Sandiganbayan dated 17 February 1992 and its orders dated 19 August 1992 and 13 May 1993 in Criminal Case No. 16936 entitled "People of the Philippines versus Reynaldo Tuanda, et al." denying petitioners' motion for suspension of their arraignment. The present controversy arose from the following antecedents: On 9 February 1989, private respondents Delia Estrellanes and Bartolome Binaohan were designated as industrial labor sectoral representative and agricultural labor sectoral representative respectively, for the Sangguniang Bayan of Jimalalud, Province of Negros

Oriental by then Secretary Luis T. Santos of the Department of Local Government. Private respondents Binaohan and Estrellanes took their oath of office on 16 February 1989 and 17 February 1989, respectively. Subsequently, petitioners filed an undated petition with the Office of the President for review and recall of said designations. The latter, however, in a letter dated 20 March 1989, denied the petition and enjoined Mayor Reynaldo Tuanda to recognize private respondents as sectoral representatives. On 4 May 1990, private respondents filed a petition for mandamus with the Regional Trial Court of Negros Oriental, Branch 35, docketed as Special Civil Action No. 9661, for recognition as members of the Sangguniang Bayan. It was dismissed on 23 July 1991. Thereafter, on 20 June 1991, petitioners filed an action with the Regional Trial Court of Dumaguete City to declare null and void the designations of private respondents as sectoral representatives, docketed as Civil Case No. 9955 entitled "Reynaldo Tuanda, et al. versus Secretary of the Department of Local Government, et al." On 21 July 1991, an information was filed before the Sandiganbayan, docketed as Criminal Case No. 16936 entitled "People of the Philippines versus Reynaldo Tuanda, et al." charging petitioners thus: INFORMATION The undersigned Special Prosecution Officer of the Special Prosecutor, hereby accuses REYNALDO V. TUANDA, HERMENEGILDO G. FABURADA, MANUEL LIM, NICANOR P. AGOSTO, ERENIETA K. MENDOZA, MAXIMO VIERNES, HACUBINA V. SERILLO, and SANTOS A. VILLANUEVA of Violation of Section 3(e) of R.A. No. 3019, as amended, committed as follows: That during the period from February 1989 to February 1991 and subsequent thereto, in the Municipality of Jimalalud, Negros Oriental, and within the jurisdiction of this Honorable Court, accused, all public officers, Mayor REYNALDO V. TUANDA, Vice-Mayor HERMENEGILDO G. FABURADA, Sangguniang Members MANUEL LIM, NICANOR P. AGOSTO, ERENIETA K. MENDOZA, MAXIMO A. VIERNES, HACUBINA V. SERILLO, ILUMINADO D. ESTRELLANES and SANTOS A. VILLANUEVA while in the performance of their official functions and taking advantage of their public positions, with evident bad faith, manifest partiality, and conspiring and confederating with each other did, then and there, wilfully and unlawfully cause undue injury to Sectoral Members Bartolome M. Binaohan and Delia T. Estrellanes by refusing to pay despite demand the amount of NINETY FIVE THOUSAND THREE HUNDRED FIFTY PESOS (P95,350.00) and ONE HUNDRED EIGHT THOUSAND NINE HUNDRED PESOS (P108,900.00) representing respectively their per diems, salaries and other privileges and benefits, and such undue injury continuing to the present to the prejudice and damage of Bartolome Binaohan and Delia Estrellanes.

CONTRARY TO LAW. 1 On 9 September 1991, petitioners filed a motion with the Sandiganbayan for suspension of the proceedings in Criminal Case No. 16936 on the ground that a prejudicial question exists in Civil Case No. 9955 pending before the Regional Trial Court of Dumaguete City. 2 On 16 January 1992, the Regional Trial Court rendered a decision declaring null and void ab initio the designations issued by the Department of Local Government to the private respondents as sectoral representatives for having been done in violation of Section 146 (2) of B.P. Blg. 337, otherwise known as the Local Government Code.3 The trial court expounded thus: The Supreme Court in the case of Johnny D. Supangan Jr. v. Luis T. Santos, et al., G.R. No. 84663, along with 7 companion cases of similar import, (G.R. Nos. 05012, 87601, 87602, 87792, 87935, 88072, and 90205) all promulgated on August 24, 1990, ruled that: B.P. Blg. 337 explicitly required that before the President (or the Secretary of the Department of Local Government) may appoint members of the local legislative bodies to represent the Industrial and Agricultural Labor Sectors, there must be a determination to be made by the Sanggunian itself that the said sectors are of sufficient number in the city or municipality to warrant representation after consultation with associations and persons belonging to the sector concerned. The Supreme Court further ruled — For that matter, the Implementing Rules and Regulations of the Local Government Code even prescribe the time and manner by which such determination is to be conducted by the Sanggunian. Consequently, in cases where the Sanggunian concerned has not yet determined that the Industrial and Agricultural Labor Sectors in their particular city or municipality are of sufficient number to warrant representation, there will absolutely be no basis for the designation/appointments. In the process of such inquiry as to the sufficiency in number of the sector concerned to warrant representation, the Sanggunian is enjoined by law (B.P. Blg. 337) to consult with associations and persons belonging to the sector concerned. Consultation with the sector concerned is made a pre-requisite. This is so considering that those who belong to the said sector are the ones primarily interested in being represented in the Sanggunian. In the same aforecited case, the Supreme Court considers such prior determination by the Sanggunian itself (not by any other person or body) as a condition sine qua non to a valid appointment or designation.

Since in the present case, there was total absence of the required prior determination by the Sangguniang Bayan of Jimalalud, this Court cannot help but declare the designations of private defendants as sectoral representatives null and void. This verdict is not without precedence. In several similar cases, the Supreme Court invariably nullified the designations where the requirements of Sec. 146 (2), B.P. Blg. 337 were not complied with. Just to cite one case, the Supreme Court ruled: There is no certification from the Sangguniang Bayan of Valenzuela that the sectors concerned are of sufficient number to warrant representation and there was no consultation whatsoever with the associations and persons belonging to the Industrial and Agricultural Labor Sectors. Therefore, the appointment of private respondents Romeo F. Bularan and Rafael Cortez are null and void (Romeo Llanado, et al. v. Hon. Luis Santos, et al., G.R. No. 86394, August 24, 1990).4 Private respondents appealed the aforestated decision to the Court of Appeals, docketed as CA-G.R. CV No. 36769, where the same is currently pending resolution. Meanwhile, on 17 February 1992, respondent Sandiganbayan issued a resolution denying the motion for suspension of proceedings filed by petitioners. Said respondent Sandiganbayan: Despite the pendency of Civil Case No. 9955 of the Regional Trial Court of Negros Oriental, it appears, nevertheless, that the private complainants have been rendering services on the basis of their respective appointments as sectoral members of the Sangguniang Bayan of the Municipality of Jimalalud, Negros Oriental; and that their said appointments enjoy the presumption of regularity. Having rendered such services, the private complainants are entitled to the salaries attached to their office. Even assuming arguendo that the said Regional Trial Court shall later decide that the said appointments of the private complainants are null and void, still the private complainants are entitled to their salaries and compensation for service they have actually rendered, for the reason that before such judicial declaration of nullity, the private complainants are considered at least de facto public officers acting as such on the basis of apparently valid appointments issued by competent authorities. In other words, regardless of the decision that may be rendered in Civil Case No. 9955, the private complainants are entitled to their withheld salaries for the services they have actually rendered as sectoral representatives of the said Sangguniang Bayan. Hence, the decision that may be rendered by the Regional Trial Court in Civil Case No. 9955 would not be determinative of the innocence or guilt of the accused. WHEREFORE, the subject Petition for the Suspension of Proceedings in Virtue of Prejudicial Question filed by the accused through counsel, is hereby DENIED for lack of merit. SO ORDERED.5 Petitioners filed a motion for reconsideration of the aforementioned resolution in view of the decision promulgated by the trial court nullifying the appointments of private respondents but

it was, likewise, denied in an order issued by respondent Sandiganbayan on 19 August 1992 on the justification that the grounds stated in the said motion were a mere rehash of petitioners' original motion to hold the case in abeyance.6 The dispositive portion of its order reads as follows: WHEREFORE, in view of the foregoing, the arraignment of the accused which was scheduled today is cancelled. Mayor Reynaldo Tuanda, Hermenegildo Faburada, Nicanor P. Agosto, Erenieta K. Mendoza, Hacubina V. Serillo and Iluminado Estrellanes are, however, hereby ordered to show cause in writing within ten (10) days from service hereof why they should not be cited for contempt of court for their failure to appear in court today for arraignment. In case of an adverse resolution on the motion to quash which is to be filed by the counsel for the defense, set this case for arraignment, pre-trial and trial on January 4 & 5, 1993, on all dates the trial to start at 8:30 o'clock in the morning. SO ORDERED.7 On 19 February 1993, respondent Sandiganbayan issued an order holding consideration of all incidents pending the issuance of an extended resolution.8 No such resolution, however, was issued and in its assailed order dated 13 May 1992, respondent Sandiganbayan set the arraignment of petitioners on 30 June 1993. The dispositive portion of the order reads: WHEREFORE, considering the absence of the accused from the scheduled hearing today which We deem to be excusable, reset this case for arraignment on June 30, 1993 and for trial on the merits on June 30 and July 1 and 2, 1993, on all dates the trial to start at 8:30 o'clock in the morning. Give proper notice to the accused and principal counsel, Atty. Alfonso Briones. Considering that the accused come all the way from Himalalud, Negros Oriental, no postponement will be allowed. SO ORDERED.9 Hence, this special civil action for certiorari and prohibition where petitioners attribute to respondent Sandiganbayan the following errors: A. The Respondent Court committed grave abuse of discretion in denying petitioners' motions for the suspension of the proceedings in Criminal Case No. 16936 in spite of the pendency of a prejudicial issue before the Court of Appeals in CA-G.R. CV No. 36769; B. The Respondent Court acted without or in excess of jurisdiction in refusing to suspend the proceedings that would entail a retrial and rehearing by it of the basic issue involved, i.e., the validity of the appointments of private respondents and their entitlement to compensation which is already pending resolution by the Court of Appeals in C.A. G.R. CV No. 36769; and

C. The Respondent Court committed grave abuse of discretion and/or acted without or in excess of jurisdiction in effectively allowing petitioners to be prosecuted under two alternative theories that private respondents are de jure and/or de facto officers in violation of petitioners' right to due process.10 In sum, the only issue in the case at bench is whether or not the legality or validity of private respondents' designation as sectoral representatives which is pending resolution in CA-G.R. No. 36769 is a prejudicial question justifying suspension of the proceedings in the criminal case against petitioners. A prejudicial question is one that must be decided before any criminal prosecution may be instituted or before it may proceed (see Art. 36, Civil Code) because a decision on that point is vital to the eventual judgment in the criminal case. Thus, the resolution of the prejudicial question is a logical antecedent of the issues involved in said criminal case. 11 A prejudicial question is defined as that which arises in a case the resolution of which is a logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal. The prejudicial question must be determinative of the case before the court but the jurisdiction to try and resolve the question must be lodged in another court or tribunal.12 It is a question based on a fact distinct and separate from "the crime but so intimately connected with it that it determines the guilt or innocence of the accused, and for it to suspend the criminal action, it must appear not only that said case involves facts intimately related to those upon which the criminal prosecution would be based but also that in the resolution of the issue or issues raised in the civil case, the guilt or innocence of the accused would necessarily be determined. It comes into play generally in a situation where a civil action and a criminal action are both pending and there exists in the former an issue which must be preemptively resolved before the criminal action may proceed, because howsoever the issue raised in the civil action is resolved would be determinative juris et de jure of the guilt or innocence of the accused in the criminal case."13 The rationale behind the principle of prejudicial question is to avoid two conflicting decisions.14 It has two essential elements: (a) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and (b) the resolution of such issue determines whether or not the criminal action may proceed. 15 Applying the foregoing principles to the case at bench, we find that the issue in the civil case, CA-G.R. CV No. 36769, constitutes a valid prejudicial question to warrant suspension of the arraignment and further proceedings in the criminal case against petitioners. All the elements of a prejudicial question are clearly and unmistakably present in this case. There is no doubt that the facts and issues involved in the civil action (No. 36769) and the criminal case (No. 16936) are closely related. The filing of the criminal case was premised on

petitioners' alleged partiality and evident bad faith in not paying private respondents' salaries and per diems as sectoral representatives, while the civil action was instituted precisely to resolve whether or not the designations of private respondents as sectoral representatives were made in accordance with law. More importantly, ,the resolution of the civil case will certainly determine if there will still be any reason to proceed with the criminal action. Petitioners were criminally charged under the Anti-Graft & Corrupt Practices Act (RA 3019, sec, 3[e]) due to their refusal, allegedly in bad faith and with manifest partiality, to pay private respondents' salaries as sectoral representatives. This refusal, however, was anchored on petitioners' assertion that said designations were made in violation of the Local Government Code (B.P. Blg. 337) and thus, were null and void. Therefore, should the Court of Appeals uphold the trial court's decision declaring null and void private respondents' designations as sectoral representatives for failure to comply with the provisions of the Local Government Code (B.P. Blg. 337, sec. 146[2]), the charges against petitioners would no longer, so to speak, have a leg to stand on. Petitioners cannot be accused of bad faith and partiality there being in the first place no obligation on their part to pay private respondents' claims. Private respondents do not have any legal right to demand salaries, per diems and other benefits. In other words, the Court of Appeals' resolution of the issues raised in the civil action will ultimately determine whether or not there is basis to proceed with the criminal case. Private respondents insist that even if their designations are nullified, they are entitled to compensation for actual services rendered.16 We disagree. As found by the trial court and as borne out by the records, from the start, private respondents' designations as sectoral representatives have been challenged by petitioners. They began with a petition filed with the Office of the President copies of which were received by private respondents on 26 February 1989, barely eight (8) days after they took their oath of office.17 Hence, private respondents' claim that they have actually rendered services as sectoral representatives has not been established. Finally, we find unmeritorious respondent Sandiganbayan's thesis that even in the event that private respondents' designations are finally declared invalid, they may still be considered de facto public officers entitled to compensation for services actually rendered. The conditions and elements of de facto officership are the following: 1) There must be a de jure office; 2) There must be color of right or general acquiescence by the public; and 3) There must be actual physical possession of the office in good faith.18

One can qualify as a de facto officer only if all the aforestated elements are present. There can be no de facto officer where there is no de jure office, although there may be a de facto officer in a de jure office.19 WHEREFORE, the resolution dated 17 February 1992 and orders dated 19 August 1992 and 13 May 1993 of respondent Sandiganbayan in Criminal Case No. 16936 are hereby SET ASIDE. Respondent Sandiganbayan is enjoined from proceeding with the arraignment and trial of petitioners in Criminal Case No. 16936 pending final resolution of CA-G.R. CV No. 36769. SO ORDERED. Padilla, Davide, Jr. and Bellosillo, JJ., concur. Hermosisima, Jr., J., took no part.