memorandum.cayetano vs dotc

8/13/2019 Memorandum.cayetano vs Dotc

1/27

Republic of the Philippines

REGIONAL TRIAL COURT

First Judicial Region

Branch 6

Baguio City

MARIO CAYETANO, SARIO TILIDEN,

HUBERTO TILIDEN, LEONARDO

LABOY, JOHN LONGBIAN, JR.,

CIPRIANO BINMOKOD, WAILAN S.

KITAN, CLARITA LUCOTAN, DAVID

SIBATEN, CHARITO !ORD,

MARCOS PALLA, LOLITA

BACKONG, CARLITO WAYAS, JOEL

GRANDEL PUAPO an" MELECIO

MOYAMOY,

Petitioners

-versus- Civil Case No. 644 -R

For! "#N$#"%&

AL!REDO B. GO#ON an" TEODORA

CAGUICLA,

Respondents'((((((((((((((((((((((((((((((('

M E M O R A N D U M)For the Respondents*

+, #// $%0 R0&P0C 1 0 1N1R#B/0 C1%R.

1"0 N1+ the respondents2 by the undersigned counsel2 unto the

onorable Court2 3ost respectfully sub3it their "e3orandu3 in the

above-entitled case in co3pliance to the 1rder of the onorable Court

dated June 2 552 and for this purpose state!

C,

PREFATORY STATEMENT

his is a case for "anda3us to co3pel the respondents to register as public utility

vehicles the units of the petitioners by virtue of the fifteen )7* Certificates of Public


2/27

Convenience approved by the for3er $1C-C#R Regional $irector upon

reco33endation of the /FRB-C#R2 a day before his co3pulsory retire3ent fro3

govern3ent service2 despite the fact that!

1. There was a moratorium for the issuance of said Certificate of Public

Convenience and that the former DOTC-CAR Regional Director as well

as the petitioners are full aware of!

". That there was no e#emption issued b the $ecretar% Department of

Transportation and Transportation and Communications in connection

with the applications of the petitioners!

8. That there was li&ewise no endorsement b the $angguniang

Panlungsod1of the Cit of 'aguio for the said new route! and

(. There was an Opposition"of fort )(*+ Operators and Drivers,of public

utilit vehicles who are operating fort )(*+ units of passenger eepne

pling the route 'ec&el-'aguio Cit which passes through Tiptop% the

route applied for b the petitioners. As a result of the undue haste in

hearing the applications of the petitioners% the oppositors were not even

given the opportunit to substantiate their opposition.

+orse2 no less than the &ecretary2 $epart3ent of ransportation and

Co33unication2 had ta9en notice of the illegal acts of the for3er Regional $irector and

the responsible officials of the /FRB-C#R resulting in latter:s suspension. he $1C

&ecretary li9e;ise ordered that i33ediate revocation and


3/27

$espite the foregoing undeniable facts ;hich undeniably prove the illegality in

the issuance of their alleged Certificate of Public Convenience2 not to 3ention the clear

directive of no less than the &ecretary2 $1C2 not to register and instead revo9e the

sa3e2 the petitioners ;ould ;ant to co3pel the respondents to register their vehicles as

public utility vehicles.

,s it 3inisterial to i3ple3ent an obviously illegally issued2 if not void2 franchise2

;ith no less than the &ecretary of the $1C ;ho is an alter-ego of the President of the

Philippines directing its revocationD he ans;er is very obvious. No less than the

onorable Court opined so during the hearing last June 2 55 that!

CORT/

hat:s ho; , understand the petition2 binigyan na ng franchise2 e

ba9it hindi p;edeng ga3itinD hat:s ;hy they are filing a case of3anda3us2 to co3pel @oEon and Caguicla.

ATT0. 'T234/

?es2 ?our onor2 there are approved certificates of public

convenience2 - h$/$ a00r12$" c$r343ca$/ 14 0-53cc1n2$n3$nc$ ar$ ac-a55 n-55 an" 213" c1n/3"$r3n7 ha h$

1n$ 8h1 7ran$" 3 ha/ n1 a-h1r3 a ha 39$ .

COURT:

YES, THAT;S HOW I UNDERSTAND IT ALSO.)T$3% 5une 6% "**6% page (+

,n a nutshell2 the foregoing is the su33ary of the case at bar.

,,

"0N 1F F#C& #N$ 1F 0 C#&0

. 1n Nove3ber 2 5582 the /and ransportation Franchising and Regulatory

Board )/FRB* issued /FRB "e3orandu3 Circular No. 558-5

TEMPORARILY SUSPENDING NATIONWIDE ISSUANCE O!

!RANCHISES !OR PUBLIC UTILITY VEHICLES

. 1n #pril 2 5572 the &ecretary of the $epart3ent of ransportation and

Co33unication )$1C* issued a "e3orandu3 9an"a3n7 91ra1r3-9 1n

h$ 3//-anc$ 14 4ranch3/$/ h$ LT!RBCAR as a result of the special

33


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audit 3ade on the $1C-C#R by the $1C Central 1ffice. he above

special audit sho;s that there is over supply of public utility vehicles

operating in the streets of Baguio City. ,n the said "e3orandu3 by the

$1C &ecretary addressed to the then $1C-C#R Regional $irector #?.

#/FR0$1 "1N$,@%,N@2 the latter ;as specifically directed to suspend all

actions or strictly i3ple3ent 3oratoriu3 on franchising functions. hus!

G1n Franchising Functions2 1- ar$

DIRECTED TO SUSPEND ALL ACTIONS

OR STRICTLY IMPLEMENT

MORATORIUM ON !RANCHISING

!UNCTIONS E


5/27

he said "e3orandu3 to %&0C #lfonso2 Jr. ;as duly furnished the then

$1C-C#R Regional $irector2 #tty. #lfredo P. "ondiguing.

Please see a copy of the June 62 556 "e3orandu3 of the $1C

&ecretary to the $1C %ndersecretary for Road ransport and to $irector

"ondiguing as Ann$% &*(of the Respondents: Co33ent..

7. Considering the above clear and eplicit "e3orandu3 of $1C &ecretary

"endoEa that he is the only one authoriEed to $0C,$0 any application for

ee3ption fro3 the "oratoriu3 and that $1C %&0C #lfonso2 Jr. is not

authoriEed to give such ee3ption and 3ust for;ard to his office all re=uests

for ee3ption received fro3 $1C-C#R for his $ecision2 no less than the

then $1C-C#R Regional $irector #lfredo "ondiguing ;rote &ecretary

"endoEa on &epte3ber 2 556 GR0K%0&,N@ 0'0"P,1N FR1"

0 "1R#1R,%" ,N 0 ,&&%#NC0 1F N0+ C0R,F,C#0& 1F

P%B/,C C1N0N,0NC0H. is letter states!

G&ir!

Ma 8$ a7a3n r$/0$c4-55 r$>-$/ $%$9031n

4r19 h$ 91ra1r3-9 3n h$ 3//-anc$ 14 n$8 C$r343ca$/

14 P-53c C1n2$n3$nc$ )Franchise* 3n 4a21r 14

a0053can/ 8h1 8an 1 a005 41r a n$8 CPC 1n

h$ n$8 r1-$, BAGUIO PLA#A 1 TIP TOP

AND VICE VERSA.H

Clearly2 the above letter specifically see9s ee3ption fro3 no less than the $1C

&ecretary hi3self for the route subAect of this case because as pointed out earlier2 the

$1C &ecretary in an earlier "e3orandu3 had 3ade it clear that he is the only one

allo;ed to issue such an ee3ption. his is 9no;n to then Regional $irector

"ondiguing.

Please see a copy of the letter of $irector "ondiguing as Ann$% &C( of the

Respondents: Co33ent.

6. hat on January 62 552 despite the absence of any @R#N 1F

0'0"P,1N FR1" 0 "1R#1R,%" F1R 0 ,&&%#NC0 1F

N0+ C0R,F,C#0& 1F P%B/,C C1N0N,0NC0 F1R B#@%,1 C,?

55


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1R #N? P#R 1F 0 C1R$,//0R# #$",N,&R#,0 R0@,1N B?

0 &0CR0#R? 1F 0 $0P#R"0N 1F R#NP1R#,1N #N$

C1""%N,C#,1N /0#N$R1 "0N$1I# $0&P,0 0 #B&0NC0

1F # #/,$ #N$ F#1R#B/0 R0C1""0N$#,1N FR1" 0

N@@%N,#N@ P#N/%N@&1$ 1F B#@%,1 C,? F1R 0 ,$

N0+ R1%0 #N$ $0&P,0 0 0#R/,0R 1PP1&,,1N F,/0$ B?

0 $R,0R&-1P0R#1R& P#&&,N@ R1%@ 0 ,$ R1%02

#tty. @uiller3o >adatar42 #ttorney ,, of the $1C-C#R and assigned as

earing 1fficer for /FRB-C#R2 conducted hearings on the applications of

the petitioners. ,n his &;orn 0planation to the $1C &ecretary ;hy he

heard petitioners: Petition despite the absence of an 0'0"P,1N fro3 the

"oratoriu3 issued by the $1C &ecretary2 he 3ade the follo;ing

ad3issions ;hich sho;s the highly =uestionable circu3stances surrounding

the applications2 hearing and approval of the petitions. ,n his &;orn

0planation2 #tty. >adatar 3ade the follo;ing controversial ad3issions!

a. hat during the hearing of the Board on January 62 55 2 1r ?-/ 4$8

"a/ $41r$ h$ COMPULSORY RETIREMENT 14 h$n DOTC

CAR R$731na5 D3r$c1r AL!REDO MONDIGUING2 0

/0#RN0$ F1R 0 F,R& ,"0 the fifteen )7* ne; applications

for the issuance of ne; CPC:s on the line! Baguio PlaEa-iptop2

#3buclao Route

b. Considering that he is a;are of the eistence of a 3oratoriu3 issued

by no less than the $1C &ecretary prohibiting the acceptance of

applications for ne; CPC:s in the Cordillera #d3inistrative Region2

he initially R0F%&0$ 1 0#R 0 #PP/,C#,1N& 1F 0

P0,,1N0R&

c. hat he called the then Regional $irector #lfredo "ondiguing about

the 3atter but the latter infor3ed hi3 that the applicants Lpetitioners

hereinM ;ere able to secure an ee3ption fro3 the coverage of the

4e ;as subse=uently suspended by the &ecretary2 $1C2 as a result of said act.

66


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3oratoriu3 fro3 %&0C R,C#R$1 #/F1N&12 JR7.2 n1 4r19 h$

DOTC SECRETARY h39/$54 a/ $%053c35 /a$" 3n h$

M$91ran"-9 14 h$ DOTC S$cr$ar "a$" A0r35 @, * an"

J-n$ '6, *6)

d. hat it ;as the then $1C-C#R Regional $irector "ondiguing ;ho

approved the 7 applications of the petitioners $0&P,0 0

#B&0NC0 1F #N? 0'0"P,1N FR1" 0 $1C

&0CR0#R? ;hich is very clear fro3 the "e3orandu3 of the

$1C &ecretary dated 2 557 and June 62 556.

e. $espite the lac9 of any 0'0"P,1N fro3 the $1C &ecretary fro3

the "oratoriu32 then $1C-C#R Regional $irector #lfredo

"ondiguing #PPR10$ the applications of the petitioners # $#?

1R +1 PR,1R 1 ,& "#N$#1R? R0,R0"0N.

Please see a copy of the &;orn 0planation of #tty. @uiller3o >adatar as Ann$%

&(of the Respondents: Co33ent.

. 1n February 2 552 respondent #/FR0$1 B. @1I1N issued a

"e3orandu3 to the onorable $1C &ecretary /0#N$R1 R. "0N$1I#

RE=UESTING !OR THE LI!TING O! MORATORIUM1N /FRB

F%NC,1N& ,N1/,N@ #/R0#$? 0',&,N@ FR#NC,&0& AND

ISSUANCE O! NEW !RANCHISES ON NEW AND

DEVELOPMENTAL ROUTES;hich includes the routes covered by the

applications of the petitioners if only to have valid proceedings regarding the

sa3e before the /FRB-C#R. %p to this ti3e2 ho;ever2 no such

0'0"P,1N ;as issued by the $1C &ecretary. his sho;s that

respondent @oEon is not against the opening of ne; routes B% "%& B0

$1N0 /0@#//?+, 0 #PPR1#/ 1R 0'0"P,1N B? 0

$1C &ecretary

Please see a copy of the "e3orandu3 of respondent #lfredo @oEon dated

February 2 55 as Ann$% &(of the Respondents: "e3orandu3.

7+ho ;as subse=uently $,&",&&0$


8/27

. 1n February 2 552 respondent @oEon received a co33unication fro3

/FRB Chair3an 2 @0N. 1"P&1N C. /#N,1N )Ret.* infor3ing hi3

of the re=uest of the petitioners for ee3ption fro3 the 3oratoriu3 on the

issuance of ne; Certificate of Public Convenience )CPC* in their favor ;hich

sho;s that indeed2 there 3ust be an ee3ption given for the said ne; route

;hich they failed to obtain before filing their applications

Please see a copy of the /etter of the /FRB Chair3an to respondent @oEon as

Ann$% &6(of the Respondents: Co33ent.

. 1n February 2 552 respondent @oEon issued his reply to /FRB

Chair3an /antion infor3ing hi3 that the 3atter ;as already referred to the

onorable $1C &ecretary considering the approval 3ade by then Regional

$irector "ondiguing despite the absence of an 0'0"P,1N fro3 the $1C

&ecretary hi3self ;ho is the only one ;ho could give said ee3ption in

accordance ;ith the &ecretary:s "e3orandu3 dated #pril 2 557 and June

62 556

Please see a copy of the /etter of respondent @oEon to the /FRB Chair3an as

Ann$% &@(of the Respondents: Co33ent.

O. 1n February 2 552 the onorable &ecretary of $1C2 /0#N$R1

"0N$1I#2 issued his reply to the letter of respondent @oEon regarding the

propriety of granting ne; certificates of public convenience for the ne; route

Baguio City PlaEaiptop --- ;hich ;as done by retired Regional $irector

#lfredo "ondiguing ;ithout any ee3ption fro3 the $1C &ecretary

hi3self but fro3 an %ndersecretaryand 3ade the follo;ing directives!

a. Considering the clear and eplicit language of his 7 June 556

3e3orandu3 to then Regional director #lfredo "ondiguing2 approval

of ee3ption fro3 the "oratoriu3 // B0 @,0N 1N/? B?

,"

b. he 1ctober 2 556 3e3orandu3 of %N&0C Ricardo #lfonso2 Ar.

authoriEing an ee3ption fro3 the 3oratoriu3 C1%/$ N00R

&%P0R&0$0 #N$


9/27

$,R0C,0 F1R # "1R#1R,%" ,&&%0$ B? 0 $1C

&0CR0#R?

c. he 3oratoriu3 is 3andated not only by the $1C but also the

/FRB by virtue of /FRB "e3orandu3 Circular No. 558-5

dated Nove3ber 2 558

d. APPROPRIATE ACTION SHALL BE TAKEN AGAINST

DOTCCAR EMPLOYEES WHO MAY HAVE A HAND AT

THE ISSUANCE O! THE ' CPC;/ )in favor of the petitioners*

WHICH WERE SIGNED BY THEN REGIONAL DIRECTOR

MONDIGUING ON JANUARY ', *@ NOTWITHSTANDING

THE MORATORIUM

e. REVOCATION ANDOR CANCELLATION O! THE

!I!TEEN F' IRREGULARLY ISSUED CPC;/ !OR

THE BAGUIO PLA#A TO TIPTOP ROUTE IS

ADVISED.

Please see a copy of the February 2 55 /etter of the $1C &ecretary to

respondent @oEon as Ann$% &(of the Respondents: Co33ent.

5. 1n "arch O2 552 no less than the /FRB Chair3an2 @en. 1"P&1N C.

/#N,1N )Ret* ;rote respondent @oEon infor3ing hi3 that 00N 0 #&

/FRB C#,R"#N C#NN1 /,F 0 "1R#1R,%"


10/27

$espite the foregoing ;hich clearly sho;s the various irregularities co33itted by

the previous $1C-C#R Regional $irector and the /FRB-C#R and the 0'PR0&&

$,R0C,0 FR1" N1 /0&& #N 0 $1C &0CR0#R? "#N$#,N@ 0

,""0$,#0 R01C#,1N #N$


11/27

,

D I S C U S S I O N S

A

WERE THE !I!TEEN F'

CERTI!ICATES O! PUBLIC

CONVENIENCE APPROVED BY THE

THEN DOTCCAR REGIONAL

DIRECTOR, UPON

RECOMMENDATION O! THE

LT!RBCAR, DESPITE THE

MORATORIUM AND ABSENCE O!

AN E


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here is no dispute that that on #pril 2 5572 the &ecretary of the $epart3ent of

ransportation and Co33unication )$1C* issued a "e3orandu3 9an"a3n7

91ra1r3-9 1n h$ 3//-anc$ 14 4ranch3/$/ h$ LT!RBCAR. he above special

audit sho;s that there is over supply of public utility vehicles operating in the streets of

Baguio City. ,n the said "e3orandu3 by the $1C &ecretary addressed to the then

$1C-C#R Regional $irector #?. #/FR0$1 "1N$,@%,N@2 the latter ;as

specifically directed to suspend all actions or strictly i3ple3ent 3oratoriu3 on

franchising functions. hus!

G1n Franchising Functions2 1- ar$

DIRECTED TO SUSPEND ALL ACTIONS

OR STRICTLY IMPLEMENT

MORATORIUM ON !RANCHISING

!UNCTIONS E


13/27

#?. B,0N@!

?es2 ?our onor2 the =uestion as to ;hether there ;as an

ee3ption secured by the petitioners fro3 the &ecretary is a factual issue.

C1%R!

?ou ;ant the3 to produce the docu3entD

#?. B,0N@!

?our onor2 there is already an ans;er to that by the &ecretaryhi3self.

C1%R!

Y-n n7a, ha;/ 8h can 1- 0r1"-c$ a "1c-9$n 14

$%$9031nD

#?. /1C>0?!

he docu3ents are attached actually to the petition.

C1%R!

But2 ;as there a specific ee3ption granted by the &ecretaryD

#?. /1C>0?!

THERE IS NONE I! THAT IS WHAT THE

RESPONDENTS ARE ASKING.

C1%R!

?ou are telling 3e that the &ecretary of ransportation has issued

an ad3inistrative orderD

#?. B,0N@!

?es2 ?our onor.

C1%R!

+ithin ;hat periodD +hen ;as it issuedD

#?. B,0N@!

On A0r35 @, *@, Y1-r H1n1r, h$ DOTC D$0ar9$n

S$cr$ar 3//-$" a M$91ran"-9 a""r$//$" 1 R$731na5 D3r$c1rA54r$"1 M1n"37-3n7 DIRECTING THE LATTER TO SUSPEND

ALL ACTIONS OR STRICTLY IMPLEMENT MORATORIUM ON

!RANCHISING !UCNTIONS O! THE LT!RBCAR.

C1%R!

Un5$// an $%$9031n 3/, 3 c19$/ 4r19 h39.

#?. B,0N@!

1313


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?our onor2 subse=uently2 he also issued a 3e3orandu3 address

to the then %ndersecretary for Road ransport &ector R,C#R$1#/F1N&1 advising the latter that DOTCCAR REGIONALDIRECTOR AL!REDO MONDIGUING HAS BEEN DIRECTED

TO STRICTLY COMPLY WITH THE MORATORIUM) ANDTHAT E0?!

Fro3 Ricardo #lfonso and noted2 ?our onor2 by the &ecretary

hi3self.

#?. B,0N@!

?our onor2 THE SAID MEMORANDUM SPEAKS ABOUT

THE CONDUCT O! SURVEY AND EVALUATION ON A

CERTAIN AREA.

C1%R!

+e co3e to that later2 but he is saying2 this is the ee3ption. ,f

that is the ee3ption that you are telling us2 ;as that issued by the

1414


15/27

&ecretary hi3self2 "endoEaD &o it ;ill be an ee3ption obtained fro3

hi3D

#?. /1C>0?!

&igned by the &ecretary hi3self2 ?our onor.

C1%R!

Y$/, - n1$" 5an7. HE DID NOT GRANT IT.)T$3% 5une 6% "**6% pages "*-",+

he petitioners relied on the "e3orandu3 of the then %ndersecretary #lfonso

that an ee3ption ;as issued in their favor as a result of the fact that the sa3e ;as

GNotedH by the &ecretary. he said docu3ent2 ho;ever2 is not an ee3ption issued in

favor of the petitioners as clearly pointed out by the petitioners as ;ell as the onorable

Court during the June 2 55 hearing. hus

C1%R!

Because in his "e3o on #pril 2 5572 you are telling us2 there

;ould be a 3oratoriu3 and everything is suspended unless they give an

ee3ption.

#?. /1C>0?!

hat:s it2 ?our onor.

C1%R!

No;2 you are telling us that on &epte3ber O2 5562 they obtained

an ee3ption fro3 %ndersecretary #lfonso but noted by "endoEa. SO ITWAS NOT AN E


16/27

C1%R!

he trouble ,2 there is a need to lift it said2 pending hisreco33endation. &1 0R0 +#& # R0C1""0N$#,1N B? 0

%N$0R&0CR0#R? 1 0 &0CR0#R?. $,$ &0CR0#R?

/0#N$R1 "0N$1I# #PPR10 0 0'0"P,1ND #0'0"P,1N +1%/$ B0 @R#N0$D , +1%/$ &00" N10$

/#N@ #N@ N#>#&%/#.

#?. /1C>0?!

hat:s it2 ?our onor. Precisely2 noted 3eans2 it ;as sho;n to the

&ecretary.

#?. B,0N@!

Further3ore2 ?our onor2 ite3 No. of that "e3orandu3 statesthat any endorse3ent fro3 this office involving the above-3entioned

routes is subAect to the conduct of survey and evaluation by the Roadransportation Planning $ivision of his $epart3ent. IT MERELY

RE!ERS TO THE CONDUCT O! SURVEYS AND EVALUATION.

C1%R!

hat 3eans2 IT WILL BE RECOMMENDED AND

THEREA!TER THEY WILL HAVE TO CONDUCT A SURVEY

AND EVALUATION KUNG TALAGANG KAILANGAN.

#?. /1C>0?!

hat is no; the re=uire3ent.

C1%R!

BUT THIS IS NOT THE E


17/27

Based fro3 the foregoing2 there is doubt ;hatsoever that the CPC:s issued in favor

of the petitioners ;ere invalid 2 illegal and unenforceable because!

here ;as a #/,$ "oratoriu3 for the processing and approval

of ne; Certificates of Public Convenience not only in the City of

Baguio but in the entire Cordillera #d3inistrative Region at the

ti3e the CPC:s subAect of this case ;ere received by the /FRB2

processed and approved by the then $1C-C#R Regional

$irector #/FR0$1 "1N$,@%,N@ t;o )* days before his

3andatory retire3ent on January 2 55

# ne; CPC 3ay be validly issued only upon an 0'0"P,1N

@R#N0$ B? 0 $1C &0CR0#R? #/1N02 not by any

other official of the $1C

hat any application for ee3ption received by %&0C #lfonso2 Jr.

shall be for;arded to the $1C &ecretary ;ho has the sole po;er

to grant or deny the sa3e

hat the $1C &ecretary in several "e3oranda had epressly

directed %&0C #lfonso2 Jr. and then Regional $irector #lfredo

"ondiguing to F1R+#R$ 1 ,& 1FF,C0 #//

#PP/,C#,1N& F1R 0'0"P,1N FR1" 0

"1R#1R,%" B0C#%&0 0 ,& 0 1N/? 1N0 +1

C1%/$ 0,0R @R#N 1R $0N? 0 "0

hat in the case of the 7 CPC:s issued by then Regional $irector

#lfredo "ondiguing in favor of the petitioners2 0R0 +#& N1

0'0"P,1N ,&&%0$ B? 0 $1C &0CR0#R? B% B?

0 $1C %N$0R&0CR0#R? +1 #& N1

#%1R,? 1 ,&&%0 0 "0.

Considering the foregoing bac9drop2 3ay the petitioners validly co3pel by

"anda3us the respondents to R0@,&0R their vehicles as GF1R ,R0H based on their

alleged approved applications by the then $1C-C#R #lfredo "ondiguing ;hose

1717


18/27

authority to do so ;as based on the alleged ee3ption granted by $1C %ndersecretary

Ricardo #lfonso2 Jr.D

+ith all due respect to the onorable Court2 the ans;er is obviously in the

negative. No clear legal right ;as obtained by the petitioners out of the said #PPR1#/

B? 0N $irector "ondiguing based on the Gee3ptionH by %N&0C #lfonso.

his is analogous to unenforceable contracts as defined under #rt. 4586of the

Civil Code of the Philippines.

,t is very clear that %&0C #lfonso ;as never authoriEed by the $1C &ecretary

to issue any ee3ption to the application of the petitioners. ,n fact2 evidence on record

sho;s that only the $1C &ecretary ;ho is authoriEed to grant or deny any ee3ption to

the 3oratoriu3 that is ;hy any application for ee3ption filed ;ith the office of the said

%ndersecretary shall be for;arded to the 1ffice of the $1C &ecretary. #s such2 the

Gee3ptionH issued by %&0C #lfonso ;as beyond his po;ers and therefore2

%N0NF1RC0#B/02 for being ultra vires2 because he has no authority or legal

representation and clearly acted beyond his po;ers. he &tate is not estopped fro3 such

acts of its officers eecuted beyond the spheres of their authority. #s such2 the

respondents could not be validly co3pelled by "anda3us to perfor3 ;hat is clearly an

illegal act. hey can be co3pelled to perfor3 only 3inisterial acts.

*. CONSIDERING THE

!OREGOING !ACTS WHICH

ARE UNDISPUTED,

MANDAMUS WILL NOT LIE

SINCE TO IMPLEMENT AN

OBVIOUSLY ILLEGAL

DECISION, REVOKED AND

REPUDIATED BY NO LESS

THAN THE DOTC

SECRETARY, COULD NOT BE

CONSDIRED MINISTERIAL.

,t is ;ell-settled in this Aurisdiction that an action for 3anda3us is e3ployed to

co3pel the perfor3ance of a 3inisterial duty only FPr123nc$ 14 Pan7a/3nan 2/.

R$0ara31n/ C1993//31n, ' SCRA +@6* and not a discretionary act )SY HA VS.

6Paragraph

1818


19/27

GALANG, L''+, A0r35 *@, '6+. No such facts are obtaining in this case as sho;n

by the evidence indicated above.

,n the case of HEIRS O! VENTURILLO VS. HON. JESUS V. =UITAIN, 6

SCRA '*2 the &upre3e Court defined G3inisterial actH as applied to 3anda3us casesa

as follo;s2 to ;it!

he re3edy of 3anda3us lies to co3pel the

perfor3ance of a 3inisterial duty FCARPO VS. CHUA,

@' SCRA @'*. A 0-r$5 93n3/$r3a5 ac 1r "-2 in

contradistinction to a discretionary act2 3/ 1n$ 8h3ch an

1443c$r 1r r3-na5 0$r41r9/ 3n a 732$n /a$ 14 4ac/, 3n a

0r$/cr3$" 9ann$r, 3n 1$"3$nc$ 1 h$ 9an"a$ 14 5$7a5a-h1r3, 83h1- r$7ar" 1 h$ $%$rc3/$ 14 h3/ 18n

?-"79$n, -01n h$ 0r10r3$ 1r 390r10r3$ 14 h$ ac

"1n$. I4 h$ 5a8 3901/$/ a "- -01n a 0-53c

1443c$r, an" 732$/ h39 h$ r37h 1 "$c3"$ h18 1r

8h$n h$ "- /ha55 $ 0$r41r9$", /-ch "- 3/

"3/cr$31nar.

he above rule ;as li9e;ise enunciated in the case of COBARRUBIAS VS.

APOSTOL, ' SCRA * ;here it ;as held that!

# purely 3inisterial act or duty2 in contradistinction

to a discretionary act2 is one ;hich an officer or tribunal

perfor3s in a given state of facts2 in a prescribed 3anner2in obedience to the 3andate of legal authority2 ;ithout

regard to the eercise of his o;n Audg3ent2 upon the

propriety or i3propriety of the act done. A

"3/cr$31nar ac, 1n h$ 1h$r han", 3/ a 4ac-5

c1n4$rr$" -01n a c1-r 1r 1443c3a5 8h3ch h$

9a "$c3"$ h$ >-$/31n $3h$r 8a an" /355 $r37h )citing SISMAET VS. SABAS, * SCRA *')PHILIPPINE BANK O! COMMUNICATIONS VS.

TORIO, * SCRA 6@, + Ph35. @

Clearly2 the act sought to be done by the respondents is not a 3inisterial one.

hey are faced ;ith over;hel3ing evidence pointing to the illegality of the Certificates

of Public Convenience ;hich ;ere the basis of the de3and of the petitioners to register

their vehicles as GF1R ,R0H. &hall they Aust blindly i3ple3ent the sa3e even though

they are a;are of the illegality surrounding their issuanceD ,s it 3inisterial for the3 to

i3ple3ent an act +,C 0 $1C &0CR0#R? 0'PR0&&/? $0&CR,B0$ #&

,//0@#/ #N$ &1%/$ B0 R01>0$ ,""0$,#0/?D ,s it 3inisterial to disobey

the la;ful orders of their superiorsD

1919


20/27

+ith all due respect2 3anda3us does not lie in this case because of the strong

evidence of illegality in the issuance of said CPC:s coupled ;ith the directive of no less

than their superior2 &ecretary /eandro "endoEa. here is doubt as their validity 3a9ing

the act discretionary and not 3inisterial. GI 3/ n$c$//ar ha h$ r$/01n"$n ha/ h$

018$r 1 0$r41r9 h$ ac c1nc$rn3n7 8h3ch h$ a0053ca31n 41r 9an"a9-/ is 3ade

other;ise2 the ;rit ;ill not issue2 HOWEVER CLEAR HIS DUTY TO PER!ORM

MAY BE. ... ,f for any reason2 the duty to be perfor3ed is DOUBT!UL, THE

OBLIGATION IS NOT REGARDED AS IMPERATIVE, AND THE APPLICANT

WILL BE LE!T TO HIS OTHER REMEDIES.)AL#ATE VS. ALDANA, SCRA

*'*.

For a petition for 3anda3us to prosper 2 it 3ust be sho;n that the petitioner

has a ;ell defined2 clear and certain right to ;arrant the grant thereof. )C1"355a Sr. 2/.

D$ V$n$c3a a. a GR. N1. '6 D$c$9$r ', ***. +orth stressing is the Audicial

caution that 3anda3us applies only ;here petitioner:s rights is founded clearly in la;

and not ;hen it is doubtful. ere2 it is significant to note that the decisions ) granting the

issuance of ne; franchise to herein petitioners* relied upon as source of petitioners

rights are null and void fro3 the very beginning having been granted during a

prohibitory period i3posed by the $1C &ecretary on the franchising functions of

/FRB-C#R ;hich ;as issued after an elaborate audit conducted for the said purpose.

Being null and void said decisions approving petitioners application for the issuance of a

ne; franchise are inoperative and does not vest any right on herein petitioners. &aid

$ecisions being non-eistent2 no decisions as clai3ed by petitioners have beco3e final

and eecutory enforceable by 3anda3us. "anda3us ;ill not issue to control or

revie; the eercise of discretion by a public officer ;here the la; i3poses on hi3 the

right or duty to eercise Audg3ent in reference to any 3atter in ;hich he is re=uired to

act. )APRUEBA VS. GAN#ON, ' SCRA *

he sa3e rule ;as reiterated in NAPOCOR EMPLOYEES CONSOLIDATED

UNION VS. NAPOCOR, SCRA +62 ;here the &upre3e Court held that!

G"anda3us ;ill issue only ;here there is a clear

legal right. A c5$ar 5$7a5 r37h ;ithin the 3eaning of&ection 82 Rule 67 of the Rules of Court MEANS A

2020


21/27

RIGHT CLEARLY !OUNDED IN OR GRANTED BY

LAW, A RIGHT WHICH2 ,N 0 /#N@%#@0 1F

N#,1N#/ ,N0&"0N #N$ $00/1P"0NC1RP1R#,1N &. #K%,N12 68 &CR# 782 5

LOM2 is $n41rc$a5$ a/ a 9a$r 14 5a8.: ,n fine2

petitioners failed to 3eet the standard to Austify their resortto the special civil action of 3anda3us.H

For 3anda3us to lie2 the legal right of the petitioner 3ust be ;ell defined2 clear

and certain2 other;ise2 the petition for the issuance of such ;rit Lof 3anda3usM ;ill be

denied. )VILLAMOR VS. LACSON, '* SCRA ') LEMI VS. VALENCIA, *6

SCRA *+.#s such2 ;here the clai3 of the petitioner is neither clear nor indubitable2 he

is not entitled to the coercive right of 3anda3us )A=UINO VS. GSIS, ** SCRA

')VALDE# VS. GUTIERRE#, *+ SCRA 66')DEL ROSARIO VS. SUBIDO, +'

SCRA +**

+. THE SECRETARY O! THE

DEPARTMENT O!

TRANSPORTATION AND

COMMUNICATIONS HAS THE

POWER O! CONTROL AND

SUPERVISION OVER THE

ACTS, DECISIONS OR

RESOLUTIONS O! THE

LT!RBCAR. HENCE, HE CAN

REVERSE AND SET ASIDE THE

DECISION O! THE LT!RB AS

APPROVED BY THE THEN

DOTCCAR REGIONAL

DIRECTOR AL!REDO

MONDIGUING EVEN

WITHOUT ANY PARTY

APPEALING THE SAME.

# certificate of public convenience being a 3ere privilege and not a right2 its

grant is never a 3inisterial duty but discretionary on the part of the granting authority.

1nly a franchise granted in accordance ;ith eisting la;s2 rules and regulations 3ay be

said to be validly issued. #s such2 it has been held that a Certificate of Public

Convenience granted to a transportation co3pany confers no property right on the route

covered thereby even assu3ing that the sa3e ;as regularly issued. +ith 3ore reason

for a CPC irregularly issued as in this case. ,t could not be the source of a right on the

part of the petitioners.

/u=ue vs. illegas2 /-7472 Nove3ber 2 O6O.

2121


22/27

,n the instant petition2 it should be noted that the =uestioned decisions granting the

petitioners application for a certificate of public convenience ;ere approved by then

$1C-C#R Regional $irector #lfredo P. "ondiguing on January 2 552 a day before

his last day in 1ffice and ;ere filed during the period covered by the 3oratoriu3

e3bodied in the "e3orandu3 of $1C &ecretary /eandro "endoEa dated #pril 2

557 2 directing the suspension of all actions or the strict i3ple3entation of 3oratoriu3

on franchising functions in the Cordillera ;ith the eception of etension of validity of

franchise

Considering the illegality sho;n above in the issuance of the fifteen )7*

certificates of public convenience2 has the $1C &ecretary have the po;er to revo9e and

set aside the decision of the then $1C-C#R #lfredo "ondiguing approving the

reco33endation of the /FRB-C#R ;hich ;as in gross violation of his 3e3orandu3

3andating 3oratoriu3 in such 9ind of issuancesD

he &tate is not estopped by the illegal acts of its officials especially in the

issuance of certificates of public convenience ;hich is undoubtedly a 3ere privilege and

not a vested right on the part of the petitioners. ,f found to have been illegally issued by

his subordinate2 the then $1C-C#R Regional $irector in this case2 the $1C &ecretary

is not ;ithout any re3edy. e could validly reverse and set aside such act of his

subordinate.

Petitioner:s argu3ent pales on the face of the fact

that the very nature of a certificate of public convenience is

at cross purposes ;ith the concept of vested rights. o thisday2 the accepted vie;2 at least insofar as the &tate is

concerned2 is that &a c$r343ca$ 14 0-53c

c1n2$n3$nc$ c1n/3-$/ n$3h$r a 4ranch3/$ n1r

a c1nrac, c1n4$r/ n1 0r10$r r37h, an" 3/ a

9$r$ 53c$n/$ 1r 0r3235$7$.( FPANGASINANTRANSPORTATION CO. VS. PSC, @ Ph35. **') A.L.

AMMEN TRANSPORTATION VS. LA COMISION

DE SERVICIOS PUBLICOS, @* Ph35. ) RI#ALLIGHT AND ICE CO. VS. MUNICIPALITY O!

MORONG , RI#AL, * SCRA *) SEMBRANO VS.

PSC, L''+ L''*6, J-5 +', ') MANILA

YELLOW TA


23/27

EAST PENN TRANSPORTATION COMPANY, '

PUR FNS +'6.R$21ca31n 14 h3/ c$r343ca$

"$0r32$/ h39 14 n1 2$/$" r37h.FROBERTOVS. COMMISSSIONERS O! DEPARTMENT O!

PUBLIC UTILITIES, '6 N.E. +*'./ittle reflection isnecessary to sho; that the certificate of public convenience

is granted ;ith so 3any strings attached. Ne; and

additional burdens2 alteration of the certificate2 AND

EVEN REVOCATION OR ANNULMENT

THEREO! IS RESERVED TO THE STATE.

+ith all due respect2 the $1C &ecretary has the specific authority to reverse and

set aside the $ecision of the then $1C-C#R Regional $irector "ondiguing approving

the Certificates of Public Convenience in favor of the petitioners as reco33ended by the

/FRB-C#R. D$0ar9$n Or"$r N1. '** "a$" J-5 , ' is too clear to be

3isunderstood. ,t provides!

G. he R$731na5 D3r$c1r 14 DOTCCAR /ha55 $ -n"$r h$

"3r$c /-0$r23/31n an" c1nr15 14 h$ D$0ar9$n S$cr$ar .

here is li9e;ise no doubt that the /FRB-C#R is under the direct control and

supervision of the Regional $irector2 $1C-C#R based on the above-3entioned

$epart3ent 1rder. hus!

G4.. DOTCCAR, hr1-7h 3/ R$731na5 D3r$c1r, /ha55 $%$rc3/$

a55 018$r/ an" 4-nc31n/ enu3erated under &ections 6 and of

Chapter 72 Boo9 , of 0ecutive 1rder No. O TO THE E


24/27

$,R0C1R +1 // R0@,&0R #& GF1R ,R0H 0 0,C/0& 1F 0

#PP/,C#N&2 N1 /FRB-C#R.

SECTION + ', CHAPTER @, BOOK , E


25/27

po;er of control2 revie;2 3odify2 alter or nullify any

action2 or decision of his subordinate in the eecutive

depart3ents2 bureaus or offices under hi3. )1liveros-

orre vs. Bayot2 7 &CR# #ng-#ngco vs.

Castillo2 et al.2 Phil. 46*. H$ can $%$rc3/$ h3/

018$r 91- 0r10r31 83h1- n$$" 14 an a00$a54r19 an 0ar.)1liveros-orre vs. Bayot2 supra*.

#s sho;n above5 the $1C &ecretary as alter-ego of the President2 &can

$%$rc3/$ h3/ 018$r F14 c1nr15 91- 0r10r31 83h1- n$$" 14 an

a00$a5 4r19 an 0ar an" REVERSE AND SET ASIDE h$ "$c3/31n 14

h$ h$n DOTCCAR R$731na5 D3r$c1r A54r$"1 M1n"37-3n7.

Finally2 as held in the case of SALVADOR M. PERE# an" JUANITA

APOSTAL VS. THE SANDIGANBAYAN PEOPLE O! THE PHILIPPINES, +

SCRA **:

S0r3n73n7 4r19 h$ 018$r 14 c1nr15 3/ h$"1cr3n$ 14 >-a5343$" 01533ca5 a7$nc, 8h$r$3n h$ ac/

14 a /-1r"3na$ $ar/ h$ 39053$" a00r12a5 14 h3/

/-0$r31r, -n5$// ac-a55 "3/a00r12$" h$

5a$r )citing the case of KILUSANG BAYAN VS.DOMINGUE#, ET AL., * SCRA **.

. THE PETITION AT BAR SHALL

BE DISMISSED OUTRIGHT

!OR !AILURE TO E


26/27

all due respect2 the sa3e is erroneous as sho;n above. he =uestions involved here are

factual in nature li9e! +as there any ee3ption issued by the $1C &ecretary to the

petitioners since their application ;as 3ade during the eistence of a 3oratoriu3D he

failure on their part to ehaust ad3inistrative re3edies is fatal. #s such2 this case should

be dis3issed even on that ground alone.

he decision of the &upre3e Court in the case of NICANOR SANTOS

DEVELOPMENT CORPORATION VS. SECRETARY, DEPARTMENT O!

AGRARIAN RE!ORM, + SCRA 62 is very illu3inating on this aspect. hus!

GPetitioner anchors the instant petition on the

eceptions to the rule on ehausting ad3inistrativere3edies. ,t is true that there are instances ;hen Audicial

action 3ay be resorted to i33ediatelyPetitioner

contends that it has no plain2 ade=uate and speedy re3edyecept to file the petition for "anda3ushe Court is not

persuaded. he Court cannot sanction petitioner:s trivial

regard of procedural rules. Rules of procedure 3ay be

relaed if their strict enforce3ent ;ill bring about failure ofAustice. o;ever2 this principle does not apply ;hen it ;ill

allo; petitioner to benefit fro3 its unAustified violations of

procedural rulesTh$ 9an"a1r r$c1-r/$ 1 h$

a"93n3/ra32$ a00$a5/ 0r1c$// $41r$ an

?-"3c3a5 r$9$" 3/ 3n21$" 4a55/ 83h3n h$

a93 14 h$ 0r3nc305$ 14 $%ha-/31n 14

a"93n3/ra32$ r$9$"3$/.H

"anda3us ;ill not issue if so3e other e=ually ade=uate re3edy is still available

in the ordinary course of la; )CALTE< VS. CIR, *+ SCRA *. ,n this case2 the

action of the respondents should have been appealed to the &ecretary of ransportation

and Co33unications before resort is to be 3ade before the onorable Court. Failure to

follo; the procedure is fatal to the cause of the petitioners. ence2 this petition should be

dis3issed.

P R A Y E R

+0R0F1R02 and in vie; of all the foregoing2 it is 3ost respectfully prayed of

the onorable Court to $,&",&& the instant petition for lac9 of 3erit.

Baguio City

July 62 55

2626


27/27

GACAYAN PAREDES AGMATA

& ASSOCIATES LAW OFFICES

-B %rbano &t.2 Baguio City

by!

LAURO D. GACAYANLAURO D. GACAYAN

Roll No. 84882 June 82 O6

,BP 1.R. No. 672 $ece3ber 62 556 )For

557*

Baguio City

PR No. 842 February 82 55

Baguio City

0 ' P / # N # , 1 N0 ' P / # N # , 1 N

)Re! &ection 2 Rule 8 of the OO Rules of Civil Procedure*

Th$ 1r373na5 c10 14 h3/ 05$a"3n7 8a/!

L M Filed directly ;ith this onorable Court

memorandum.cayetano vs dotc

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