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Republic of the Philippines

COURT OF APPEALS
Cebu City
-oOo-

TWENTIETH DIVISION
MELECIO J. YAP, JR. ,
City Mayor of Escalante, Negros
Occidental, WILFREDO E. RUIZ
ROY D. CARALDE &
ARNULFA R. DONOSO
Petitioners,

CA-G.R. SP No. 09760

-versusOffice of the Ombudsman, Dilliman


Quezon City represented by the
Hon. Conchita Carpio-Morales and
the Department of Interior and Local
Government represented by the
Honorable DILG Secretary Mel Senen
Sarmiento,
Respondents
x-------------------------------------------------x

SUPPLEMENTAL PLEADING
(Third)
Petitioners, by counsel, unto this Honorable Court of Appeals, most
respectfully submit their (third) supplemental to the Petition and state that:
The grounds for the issuance of a preliminary injunction are
enumerated in Section 3, Rule 58 of the Rules of Court, which reads:
Sec. 3. Grounds for issuance of preliminary
injunction. A preliminary injunction may be granted
when it is established:
(a) That the applicant is entitled to the relief
demanded, and the whole or part of such relief
consists in restraining the commission or
continuance of the act or acts complained of, or
in requiring the performance of an act or acts, either
for a limited period or perpetually;
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(b) That the commission, continuance or nonperformance of the act or acts complained of during
the litigation would probably work injustice to the
applicant; or
(c) That a party, court, agency or a person is
doing, threatening, or is attempting to do, or is
procuring or suffering to be done, some act or acts
probably in violation of the rights of the applicant
respecting the subject of the action or proceeding,
and tending to render the judgment ineffectual.

In a line of cases, the Court has explained this rule and


emphasized that a writ of preliminary injunction is issued to preserve
the status quo ante, upon the applicants showing of two important
requisite conditions, namely: (1) the right to be protected exists prima
facie, and (2) the acts sought to be enjoined are violative of that
right. It must be proven that the violation sought to be prevented
would cause an irreparable injustice (Los Baos Rural Bank, Inc. v.
Africa, 433 Phil. 930, 935 (2002); See also Power Sites and Signs,
Inc. v. United Neon, G.R. No. 163406, November 24, 2009, 605
SCRA 196).
Furthermore, based on the foregoing provision, the Court in St.
James College of Paraaque v. Equitable PCI Bank G.R. No.
179441, August 9, 2010, 627 SCRA 328, 344, citing Bian Steel
Corporation v. Court of Appeals, 439 Phil. 688, 703-704 (2002);
Hutchison Ports Philippines Ltd. v. Subic Bay Metropolitan
Authority, 393 Phil. 843, 859 (2000) ruled that the following
requisites must be proved before a writ of preliminary injunction will
issue:
(1) The applicant must have a clear and unmistakable
right to be protected, that is, a right in esse;
(2) There is a material and substantial invasion of such
right;
(3) There is an urgent need for the writ to prevent
irreparable injury to the applicant; and
(4) No other ordinary, speedy, and adequate remedy
exists to prevent the infliction of irreparable injury.
From the facts presented by the Petitioners and number of
documentary evidences in their previous pleadings, to wit:
1. The original Petition for Injunction dated December 21,
2015;
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2. Supplemental to the Petition with Re-emphasis on the


Extreme Urgency for Issuance of a TRO dated December
28, 2015;
3. Compliance to the Courts Resolution dated Dec. 28, 2015
with Second Supplemental Allegations with Manifestation
and Submission of Table of Authorities dated Jan. 04, 2016

Petitioners have clearly and unmistakably demonstrated their


right to injunctive relief sought and the whole or part of such relief
consists in restraining the commission or continuance of the act or
acts complained of which is, their suspension for three (3) months as a
result of a void and arbitrary decision of the Ombudsman.
They have shown that (1) the right to be protected exists prima
facie, and (2) the acts sought to be enjoined are violative of that right.
The clear and unmistakable right of the Petitioners are shown
by the following:
a) For Petitioner Yap, the fact that the administrative sanction as a
result of the complaint filed in 2009 was overtaken twice by his
re-election for the same office in 2010 and 2013 respectively.
The condonation doctrine, despite having been abandoned by
the latest ruling of the Supreme Court remains to be effective in
his case by its prospective application.
b) For Petitioner Yap, the fact that he was denied of the due
process when he was impleaded in the administrative case
OMB-V-A-09-0444 without his knowledge and was not
likewise furnished by his complainants of the Position Paper for
the mentioned case and subsequent pleadings such as Rejoinder.
c) For all the Petitioners, the fact that res judicata had already set
in by reason of the dismissal of the same case in 2012;
The material and substantial invasion of such right is shown
by the fact it is the same office (Ombudsman) that ordered for the
dismissal of the same case in 2012 and likewise ordered the exact
opposite three (3) years after. As for the Respondent DILG, it is very
much aware that Petitioner Yap was re-elected twice in the same
office and in fact is aware of the prevailing doctrine of condonation
that was ordered to still have a prospective application despite
abandonment by the Supreme Court. It could not go wrong because as
already stated in the previous pleadings, Escalante City is a recipient
of several citations for excellence in governance under the
administration of Petitioner Yap.
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There is no argument that the petitioners suspension would


cause grave and irreparable injury on them being public servants
whose function is very vital to the delivery of basic services to their
constituents. As for Petitioner Yap, being the incumbent City Mayor
whose mandate emanates from the people of Escalante City, the lost
time and opportunity during the period he was unduly suspended from
office and was prevented to serve his constituents is incapable of
pecuniary estimation. Such lost time involving the paramount public
interest could no longer be restored nor duplicated. Every passing tick
of time of the suspension is entirely a distinct and unique opportunity
to serve the people therefore irreparable.
With the pronouncement of the Supreme Court in cases as cited
in the previous pleadings, that decision for administrative cases are
immediately executory it is clear that Petitioners have no other
ordinary, speedy, and adequate remedy to prevent the infliction of
irreparable injury. It is only through this extraordinary remedy of
injunctive relief that such irreparable injury may be prevented.
Additional supporting evidences
and argument on the issue that
Petitioner Melecio Yap, Jr. was
never a party to OMB-V-A-09-0444-L
(with reference to the allegation
in the Compliance, dated
January 4, 2016 found in page 9, rollo
Petitioners hereby submit additional documentary evidences
which, although indicated previously as non-existent are nevertheless
in the records of the Ombudsman-Visayas after several follow-ups
proving that petitioner Melecio Yap, Jr. was not a party respondent nor
considered to be one in OMB-A-09-0444-L, as follows:
1. Complainants Verified Position Paper for OMB-V-C-090454-L and OMB-V-A-09-0444-L (for the Second case)
dated August 23, 2010 and received by the OmbudsmanVisayas on October 07, 2010, Exhibit R.
The document by itself indicates that Petitioner Melecio
Yap, Jr. was never contemplated by the Complainants to be
impleaded as a Respondent in the said cases by not
including his name in the heading of their Position Paper
which ordinarily the last pleading to be filed before it is
submitted for resolution, Exhibit R-1.

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Even the Prefatory Statement is absent of any indication


that it was their intention to implead Melecio Yap, Jr. in this
case (OMB-V-A-09-0444-L) the decision of which is being
questioned, Exhibit R-2. The mere mention of the word
corroborated is not enough for a conclusion of
implication.
Furthermore, the mentioned party subject of the said verified
position paper found on page two (2) did not include
Melecio Yap Jr. but only the other co-petitioners, Exhibit
R-3.
Also on the proposition of the issues involved and to be
resolved, the Respondents being referred to were only the
City Budget Officer, OIC City Accountant and City
Treasurer and never the City Mayor, Melecio Yap, Jr.,
when they stated:
Whether or not the acts of Respondents
Budget Officer, OIC City Accountant and
Treasurer (in) constitute GRAVE ABUSE
AUTHORITY, GROSS MISCONDUCT
GROSS DISHONESTY?

City
City
OF
and

(Exhibit R-4)
Subsequent discussion by the complainants also clearly
shows that Melecio Yap, Jr. was never their subject in the
said position paper.
They started their position paper not impleading Petitioner
Melecio Yap, Jr., they ended it just the same when their
prayer states:
WHEREFORE, premises considered it is most
respectfully prayed of this Honorable Office that
Respondents City Budget Office, OIC City
Accountant and City Treasurer be placed in
administrative suspension while the investigation is
going on and disciplinary action of dismissal from
service be adjudged against them

(Exhibit R-5).
On the last page of the position paper is a handwritten proof
of mailing indicating that complainants furnished copy of
said position paper to Mr. Wilfredo Ruiz, et. al. through
registered mail in September 26, 2010, Registry Receipt No.
341 mailed at the Escalante Postal Office, (Exhibit R-6).
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Consistent with the heading and the content, it can be fairly


concluded that the et. al. refers to only to Roy D. Caralde
and Arnulfa R. Donoso and does not include at all Melecio
Yap, Jr.
This shows that Melecio Yap, Jr. was never furnished a copy
of the position paper because he was never thought to be a
respondent in the said case by the complainants. Even if he
was considered as respondent, the failure of the
complainants to furnish him a copy of the position paper as
shown by the handwritten copy furnished portion of the
pleading violated Petitioner Yaps right to due process as it
deprived him of his right to be informed of the accusation
against him and to properly controvert the same.
Also, it appears that Petitioners Caralde and Donoso were
not properly served with the said position paper which in
like manner deprived them of their right to due process.
2. Complainants Verified Position Paper for OMB-V-A-090408-L dated September 27, 2010 and received by the
Ombudsman-Visayas on October 27, 2010, Exhibit S.
This is the position paper submitted by the complainants for
the administrative case of the First Complaint with
reference to Exhibit B.
It is in this position paper that Petitioner Melecio Yap, Jr.
was impleaded as a Respondent, Exhibit S-1.
Petitioners would like to stress again that this case, OMB-VA-09-0408, was already dismissed in November 20, 2012.
Please make reference to item no. 12 of the Petition for
Injunction dated December 21, 2015, rollo.
3. Order of the Ombudsman-Visayas dated October 13, 2010
for OMB-V-C-09-0454-L and OMB-V-A-09-0444-L
indicating that Petitioner Melecio Yap, Jr. was never
included as among the Respondents, Exhibit T;
4. Rejoinder of the Complainants dated December 13, 2010
for OMB-V-C-09-0454-L and OMB-V-A-09-0444-L,
Exhibit U.
Again in this rejoinder, Petitioner Melecio Yap, Jr. was never
impleaded as among the Respondents. This conclusion is
affirmed in the prayer which does not mention in anyway the
name of Melecio Yap, Jr., to wit:
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WHEREFORE, premises considered, it is most


respectfully prayed and reiterated that the foregoing
Rejoinder be given due course. Further reiterating
its prayer as contained in the Complaint dated
December 8, 2009 that the respondents
WILFREDO
RUIZ-City
Treasurer,
ROY
CARALDE-Budget Officer and ARNULFA
DONOSO-OIC City Accountant be placed under
preventive suspension and that appropriate criminal
and administrative charges be filed against them in
the Court of competent jurisdiction.

All told, the finale pleadings filed by the Complainants and the
Order of the Ombudsman-Visayas for the first and second cases
makes distinction as to the Respondents of the two (2) complaints
filed, one, in November 27, 2009 and second, in December 10, 2009.
For the November 27, 2009 complaint (first), the respondent
was just Melecio Yap, Jr. while the December 10, 2009 complaint
(second), the respondent were Ruiz, Caralde and Donoso. These were
never changed.
Up to the last point, the complainants were consistent that for
OMB-V-C-09-0454-L and OMB-V-A-09-0444-L, their Respondents
were just Ruiz, Caralde and Donoso while for OMB-V-A-09-0408,
their Respondent was only Melecio Yap, Jr.
After the rejoinder filed by the complainants, nothing was heard
of them. Meaning, up to the time when they rested their case, all in
their minds are that for the first complaint, their Respondent was only
Melecio Yap, Jr., while in the second complaint their Respondents
were Ruiz, Caralde and Donoso.
This agrees with the view of Petitioner Yap that he is never a
party Respondent to OMB-V-A-09-0444-L to which he was penalized
a suspension for three (3) months.
In the subject Decision (for OMB-V-A-09-0444-L) however, it
appears that there was a Joint Evaluation Report dated 21 January
2010 wherein the Ombudsman (Visayas) recommended that Petitioner
Melecio Yap, Jr. be impleaded as a Respondent along with Ruiz,
Caralde and Donoso (page 5, Exhibit H, rollo). However, there is no
showing that Petitioner Melecio Yap, Jr. received the said Joint
Evaluation Report and he was subsequently notified that he was now a
Respondent to the OMB-V-A-09-0444-L.
If this was true, then why is there a latter Order dated October
13, 2010 (please see Exhibit T) for OMB-V-C-09-0454-L and
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OMB-V-A-09-0444-L issued by the Ombudsman with still no


indication that Melecio Yap, Jr. was now among the Respondents?
It is an elementary principle in our jurisprudence that courts or
any tribunal for that matter cannot proceed with the disposal of the
case until a party be properly notified that he is a party respondent
thereto and is given the opportunity to counter the accusation against
him more so finding him guilty for the charges he is not aware of.
Since clearly petitioner Yap is not a party to the subject case
(OMB-V-A-09-0444-L) any decision thereof is void and will never be
binding on his part.
It is without argument that the right of petitioner Yap to due
process was violated by the Honorable Office of the Ombudsman.
The sanctity of due process need not be further stressed.
The Court with eloquently speaking in the old case of
Macabingkil v. Hon. Yatco, et. al., G.R. No. L-23174, September 18,
1967:
Thus in Cuaycong v. Sengbengco, decided in 1960, this
Court through the then Justice, now Chief Justice,
Concepcion declared that "acts of Congress, as well as
those of the Executive, can deny due process only under
pain of nullity, and judicial proceedings suffering from the
same flaw are subject to the same sanction, any statutory
provision to the contrary notwithstanding." Only lately, this
Court through Justice Bengzon reiterated that the due
process clause "is designed to secure justice as a living
reality; not to sacrifice it by paying undue homage to
formality."

In a similar Ombudsman administrative case of Ombudsman v.


Antonio Reyes, G.R. No. 170512, October 5, 2011, the Supreme Court
underscoring the importance of due process in administrative
proceedings said:
Moreover, Department of Health v. Camposano restates the
guidelines laid down in Ang Tibay v. Court of Industrial
Relations that due process in administrative proceedings
requires compliance with the following cardinal principles:
(1) the respondents right to a hearing, which includes the
right to present ones case and submit supporting evidence,
must be observed; (2) the tribunal must consider the
evidence presented; (3) the decision must have some basis
to support itself; (4) there must be substantial evidence; (5)
the decision must be rendered on the evidence presented at
the hearing, or at least contained in the record and disclosed
to the parties affected; (6) in arriving at a decision, the
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tribunal must have acted on its own consideration of the


law and the facts of the controversy and must not have
simply accepted the views of a subordinate; and (7) the
decision must be rendered in such manner that respondents
would know the reasons for it and the various issues
involved. xxxxx
In the instant case, petitioner plainly disregarded Reyes
protestations without giving him a similar opportunity, as in
Ruivivar, to be belatedly furnished copies of the affidavits
of Pealoza, Amper and Valdehueza to enable him to refute
the same. As it were, petitioner rendered its Decision dated
September 24, 2001 on the basis of evidence that were not
disclosed to Reyes. This the Court cannot sanction. A
judgment in an administrative case that imposes the
extreme penalty of dismissal must not only be based on
substantial evidence but also rendered with due regard to
the rights of the parties to due process.

Like in the case of Petitioner Yap, there is no showing that he


received the complaint for OMB-V-A-09-0444 and OMB-V-C-090454. There is likewise no showing that he received a copy of the
Joint Evaluation Report dated 21 January 2010 recommending that he
be impleaded as a respondent thereof. Furthermore, there is no
showing that he was furnished and was able receive the subsequent
important pleadings such as Rejoinder and Position Paper filed by his
supposedly complainants.
Thus, Petitioner Yap, having been unaware that he is a
Respondent to the Ombudsman case docketed as OMB-V-C-09-0454
and OMB-V-A-09-0444 and was not given the opportunity to
controvert the same, could not be held liable thereof and to suffer the
penalty of suspension.
On the validity of the service of
suspension order and its efficacy
The propriety of the service of the suspension order particularly
against Petitioner Yap is highly questionable.
The suspension order was attempted to be served on
Petitioner Melecio Yap, Jr. through his Executive Assistant William V.
Saratobias by Ms. Margie A. Biligan, CESO IV, OIC Regional
Director of Department of Interior and Local Government (DILG),
Negros Island Region in December 29, 2015 at 4:55 in the afternoon,
Exhibit V.
The said William V. Saratobias was not authorized by
Petitioner Yap to act on his behalf in receiving the said suspension
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order. To attest this fact, attached is the sworn statement of William


V. Saratobias marked as Exhibit W.
Although Petitioner Yap respects the action made by the DILG
representatives while he was not personally present, the act of serving
and enforcing the suspension order to an executive assistant who is
not duly authorized does not suffice the requirement of proper service
of suspension. Up to this point, Petitioner Yap never received a copy
of the suspension Order personally nor was there any effort to serve it
on his person after the December 29, 2015 incident.
Similar to the recent case of Mayor Oscar Moreno of Cagayan
de Oro city, the Court of Appeals 22nd Division ruled that the service
of dismissal order of the Ombudsman was defective hence not
consummated as Moreno was not personally served the order and that
the DILG only posted it on the wall of the ground floor of the
Legislative Bldg. Despite an Acting Mayor was already sworn to into
office a day prior to the issuance of the TRO, the Court of Appeals
nevertheless restored a status quo in the city hall of Cagayan de Oro.
Petitioner Yap would like to stress that he does not recognize
the designation of Atty. Maravillas as the Acting City Mayor of
Escalante. However, in order to avoid chaos and conflict, as a good
father of the city, he has to stay in the sidelight. This should not
however be interpreted as an express or constructive acceptance
thereof.
In the words of the Court of Appeals 22nd Division, the instant
case, the last, actual, peaceable and uncontested condition before the
DILG served the assailed Ombudsman Decision is petitioner Melecio
Yap, Jr. sitting as the elected Escalante City Mayor, Wilfredo E. Ruiz
as the City Treasurer, Roy D. Caralde as the City Budget Officer and
Arnulfa R. Donoso as the OIC City Accountant.
Petitioners and the Escalante City should be restored in this
same status.

PRAYER
WHEREFORE, in view of the foregoing, it is most respectfully
prayed of this Honorable Court as follows;
1. The additional arguments and the submission of Exhibits R ,
T, U, V & W with sub-markings be noted;
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2. Reiterating their prayer for the immediate issuance of a


Temporary Restraining Order (TRO) Status Quo Ante against
the Respondent Ombudsman and the DILG, their agents,
representatives, and any person acting on the their behalf from
continuing to implement a void and irregular decision of the
Ombudsman dated November 11, 2015;
3. Reiterating their prayer that considering that the assailed
decision has been already implemented (though not recognized
by the Petitioners), to issue an ORDER against the Ombudsman
and the DILG, their agents, representatives and any person
acting on their behalf to DISCONTINUE, LIFT and
RECALL the suspension order against the Petitioners and
REINSTATE them to their respective offices to the last, actual,
peaceable and uncontested condition prior to the
implementation thereof until the merits of the main Petition for
Injunction and or the Motion for Reconsideration filed before
the Ombudsman have been resolved.
4. Other relief that is just and equitable under the circumstances
are likewise prayed for.
Bacolod City for Cebu City, Philippines, 15 January 2016.

MALUNES, MAMPANG & MONTORO


LAW OFFICE
Counsel for the Petitioners
Room 202, 2ND Flr. Park Lane Bldg.
Hilado-Tindalo Ave., Shopping
Bacolod City, Philippines
By:
ARIEL I. MALUNES
IBP Roll No. 51729
IBP No. 1008492 - 01/08/16, Bacolod City
PTR No. 9544331, 1/08/16- E.B. Magalona, Neg. Occ.
MCLE Compliance No. IV- 0022885

Copy furnished:
HON. CONCHITA CARPIO-MORALES
Office of the Ombudsman
Ombudsman Building, Government Center
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__________________
Date: ______________

Agham Road, Dilliman, Quezon City 1101


OFFICE OF THE OMBUDSMAN (VISAYAS)
Department of Agriculture, Regional Office
VII Compound, M. Velez Street, Guadalupe,
Cebu City 6000

__________________

HON. MEL SENEN SARMIENTO


DILG Secretary and representative
Department of Interior and Local Government
DILG-NAPOLCOM Center
EDSA corner Quezon Avenue, Quezon City 1100

___________________

Date: ______________

Date: _______________

EXPLANATION
Copy of the foregoing Supplemental was furnished to the parties by
registered mail due to distance making personal service very difficult if not
impractical.
ARIEL I. MALUNES

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