Jefferson Navigation, Inc. v. Court of Tax Appeals

SECOND DIVISION [CA-G.R. SP No. 56556. July 24, 2001.] JEFFERSON NAVIGATION, INC., GALEN MARITIME LTD. and MARINE MANNING and MANAGEMENT CORPORATION , petitioners , vs . COURT OF TAX APPEALS, BLACKGOLD INTEGRATED SALES AND PARANAGA INTERNATIONAL, DEPUTY COMMISSIONER EMMA M. ROSQUETA and the District Collector of Customs, Port of San Fernando, La Union , respondents . D E C I S I O N SABIO , J. L. JR. , J p : Before Us on appeal are two (2) resolutions (promulgated on September 7, 1999 and October 29, 1999 respectively) of the Court of Tax Appeals (Quezon City) in C.T.A. Case No. 5712. The dispositive portion of the September 7, 1999 assailed resolution, reads, thus: "In view of all the foregoing and pursuant to Section 1, Rule 19 of the 1997 Ru les of Ci vil Procedure, the 'Urgent Motion to Intervene to Protect Maritime Lien' is hereby DENIED with finality." (page 4 of the Assailed Resolution; page 30 of the Rollo ). On the other hand, the dispositive portion of the October 29, 1999 assailed resolution is stated as follows, viz : "Accordingly, Movant-Intervenors' Motion for Reconsideration is hereby DENIED for LACK OF MERIT." (page 31 of the Rollo ). The antecedent facts of the present case, as borne by the records follow: The herein petitioners JEFFERSON Navigation, Inc. (JEFFERSON for short); GALEN Maritime Ltd. (GALEN for brevity); and, Maritime Manning & Management Corporation (MARIMANCOR for briefness), are foreign corporations are organized and existing under the laws of Hongkong and are the owners, managers and operators of the vessel MV "J RUBY", and represented in the Philippines by their protective agent MARIMANCOR, a corporation organized and existing under Philippine laws. The Respondent BLACKGOLD Integrated Sales (BLACKGOLD for short), is a single proprietorship duly registered with the Department of Trade and Industry, owned by Roberto J. Sarria, represented by its General Manager Romeo Jamerlan and engaged in the business of retailing, wholeselling, producing/servicing sugar and sugar preparations. On the other hand, respondent PARANAGA International (PARANAGA for brevity), is a foreign firm registered under Indonesian laws, represented in the Philippines by George T. Wong. BLACKGOLD and PARANAGA are the consignees of the sugar cargo carried by the vessel MV "J RUBY" from the port of Sri Racha, Thailand to Poro Point, San Fernando, La Union. On "2 September 1998, FABERCO Marketing Corporation entered into a charter party with the herein petitioners for the hire of the vessel MV 'J. RUBY' to load a cargo of a minimum of 6,000 MT bagged sugar to be loaded at the Port of Sri Racha, Thailand for carriage to and discharge at Poro Point, Philippines." (page 6, Petition for Certiorari with Preliminary Injunction and Urgent Prayer for a Restraining Order; page 7 of the Rollo ). On "23 September 1998, the MV 'J RUBY' arrived at Poro Point, Port of San Fernando, La Union carrying a cargo of 5,500 MT or 110,000 bags @ 50 kilos raw sugar; at the time of the arrival of the MV 'J RUBY' the consignees of the entire cargo was not yet known herein petitioners." (page 6 Petition for Certiorari with Preliminary Injunction and Urgent Prayer for a Restraining Order; page 7 of the Rollo ). On "September 25, 1998, the Commissioner of the Economic Intelligence and Investigation Bureau (EIIB) informed the Customs Office at San Fernando, La Union that the subject importation lacked the unnecessary Sugar Regulatory Administration (SRA) clearance and that the carrying vessel is not listed in the SRA Schedule of Sugar Importation by Vessel/Importer which means that 'J Ruby' did not have authority to transport the sugar." (page 140 of the Rollo ). On "October 1, 1998, an Amended Cargo Manifest was submitted specifying that the consignee of the 500 metric tons of said cargo was BLACKGOLD INTEGRATED SALES and that the consignee of the 5,000 metric tons of same cargo was PARANAGA INTERNATIONAL, . . ." (page 140, supra ) On "October 8, 1998, Warrants of Seizure and Detention were issued by then District Collector of Customs, Antonio P. Aguilar, Port of San Fernando, LA Union, against the vessel and its cargo for violation of Sections 1004, 2519, 2534 and 2530 (a) and (k), and Sections 2530(f)(1-5) and 101 (k), of the Tariff and Customs Code of the Philippines (TCCP), as amended, in relation to SRA rules and regulations." (page 140, supra). The said "seizure case was heard before the District Collector of Customs, Port of San Fernando, LA Union (SFLU), docketed as Seizure Identification Nos. SFLU-01-98 and SFLU-02-98." (page 141 of the Rollo ). On November 13, 1998, the Department of Finance, Bureau of Customs, Collection district I, Port of San Fernando City, issued a decision in Seizures Identification Nos. SFLU-01-98 and SFLU-02-98, the dispositive portion of which are as follows, to wit: "WHEREFORE, premises considered, this Office hereby lifts, as they are hereby lifted, the Warrants of Seizure and Detention against the 5,500 MT Raw Sugar subject of SI No. SFLU 02-98 and the vessel MV "J RUBY" subject of SI No. SFLU 01-98. This office, however, finds the MV "J RUBY" liable for the fine pursuant to Section 2519 of the Tariff and Customs Code, as amended, and hereby orders the owner/s or agent's thereof to pay the sum of FIVE THOUSAND PESOS (5,000.00), Philippine Currency. . . ." (pages 218-219 of the Rollo ). On "December 4, 1998, Deputy Commissioner Emma M. Rosqueta, acting in behalf of the Commissioner, of the Bureau of Customs . . . modified the above decision to the effect that the subject vessel be released by the subject cargo be forfeited in favor of the government, thus: "WHEREFORE, the decision of the District Collector of Customs in the above-entitled cases is modified. The 5,500 MT (100,000 bags) sugar subject of SI No. 02-98 be, as they are hereby, FORFEITED in favor of the Government of the Republic of the Philippines, the same to be disposed of in accordance with law. 'The MV "J RUBY," be as it is hereby, RELEASED to the Claimant upon proper identification and compliance with all other legal requirements, but said vessel is however, imposed a fine of 5,000.00. . . .' (pages 141-142 of the Rollo ). On February 16, 1999, BLACKGOLD and PARANAGA "filed a motion with the Court of Tax Appeals to release the forfeited goods under bond," (page 4 of the Rollo ), which was granted by the Court of Tax Appeals in its Resolution (promulgated on March 16, 1999), by ordering Deputy Commissioner Emma M. Rosqueta and/or the District Collector of Customs, Port of San Fernando, La Union in favor of the Bureau of Customs in the amount of Thirty One Million Five Hundred Thousand Pesos (P31, 500,000.00) (pages 34-35 of the Rollo ). On February 19, 1999, herein petitioners "filed with the Court of Tax Appeals a Notice of Maritime Lien informing said court that petitioners have duly filed their notice of lien on the cargo for unpaid demurrage pursuant to Section 1505 of the Tariff and Customs Code." (page 4 of the Rollo ). On February 24, 1999, JEFFERSON, GALEN, and MARIMANCOR, filed a Complaint-in-Intervention with the Court of Tax Appeals (pages 94-99 of the Rollo ), which was opposed to by BLACKGOLD & PARANAGA in its motion dated July 2, 1999 (pages 70-73 of the Rollo ) and was denied by the Court of Tax Appeals in its resolution dated March 15, 1999 (pages 32-33 of the Rollo ). On March 25, 1999, the herein petitioners, filed a complaint with the Regional Trial Court of Manila (Civil Case No. 99-93279) against FABERCO Marketing Corp. and/or George Wong. The Bureau of Customs represented by Deputy Commissioner Emma M. Rosqueta and the District Collector of Customs-Port of San Fernando, La Union, the Government Service Insurance System and Blackgold Integrated Sales and PARANAGA International, for collection of sum of money (pages 36-42 of the Rollo ). On June 4, 1999, JEFFERSON, GALEN and MARIMANCOR filed an Urgent Motion to Intervene (To protect maritime Lien) (pages 56-62 of the Rollo ), praying that their Complaint-in-Intervention (dated June 3, 1999-pages 63-69 of the Rollo ) be admitted. The same was opposed to by BLACKGOLD and PARANAGA (pages 70-73 of the Rollo ) and, in turn, JEFFERSON, GALEN and MARIMANCOR filed their Reply therein (pages 74-85 of the Rollo ). Subsequently, the Court of Tax Appeals, issued the now first assailed Resolution (promulgated in September 7, 1999) the dispositive portion of which was earlier quoted, with the following findings, to wit: "As it appears to Us from our reading of its pleadings, the intervenor is actually seeking for a consideration of this Court's ruling denying its first 'Very Urgent Motion to Intervene.' Such being the case, it being apparent that the intervenor merely changed the nomenclature of its cause and if this Court will strictly be bound by technicalities, the present cause of the intervenor will be dismissed, ex mero motu , the said motion having been filed beyond the fifteen (15) day period of limitation provided by Section 1, Rule 13 of the Court of Tax Appeals. However, for the satisfaction of the intervenor and brushing aside procedural infirmities, this Court has decided to take a look at the instant motion in order to settle subordinate issues confronting the parties in the original action on the one hand and the complainant-intervenor of the other hand. "Intervenors protestation hinges mainly on Section 1 of Rule 19 of the Rul es of Co urt which provides, thus: 'Section 1. Who may intervene A person who has a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or disposition of property in the custody of the Court . . . may be allowed to intervene in the action (emphasis supplied).' "Intervenor submits that they will be adversely affected by any decision of this Court as any such decision per se will render the bond ineffective, thus the same would deprive them of their maritime lien. "While the parties raise a number of issues, We deem the requirement before an intervention may be allowed to be decisive on this motion. On this regard, We are for the denial. "To be permitted to intervene in a pending action, it must be shown that the movant not only has a legal interest in the matter in litigation. Equally important is that consideration must be given by the Court on whether the adjudication of the rights of the original parties may be delayed or prejudiced, or whether the intervenors rights may be protected in a separate proceeding or not. Both requirement must concur as the first is not more important that the second. ( Magsaysay Labrador vs. Court of Appeals , 180 SCRA 266). "As stated, that the movants interest may be protected in a separate proceeding is a factor to be considered in allowing or disallowing a motion for intervention. It appearing to us that at this juncture a claim for demurrage has already been filed with the proper Regional Trial Court (CTA Records, p. 280), thus giving the intervenor all the protections/remedies available in the said Court trying on the merits of its claim. We find it ineluctable to DISALLOW the intervention prayed for by the complainant-intervenor. "Moreover, We find intervenor's reliance in the case of Joaquin vs. Herrera as off-tangent inasmuch as the same bears a different factual milieu. In the said case, the Court of First Instance has jurisdiction over the matter in intervention while in the case at bar, as stated in Our resolution promulgated March 15, 1999, the matter in intervention is beyond the jurisdiction of this Court." (pages 2-4 of the Assailed Resolution dated September 7, 1999; pages 28-30 of the Rollo ). Unsatisfied with the foregoing, there herein petitioners filed, on September 23, 1999, their "motion for reconsideration asking the Court of Tax Appeals to set aside its resolution dated September 7, 1999 and to allow them to intervene" (page 5 of the Petition for Certiorari with Preliminary Injunction and Urgent Prayer for a Restraining Order; page 6 of the Rollo ). The same was denied for lack of merit by the Court of Tax Appeals in its resolution promulgated on October 29, 1999 (page 31 of the Rollo ), hence, this present Petition for Certiorari with Preliminary Injunction and Urgent Prayer for a Restraining Order, with the following formulated issues, to wit: "I. WHETHER OR NOT THE COURT OF TAX APPEALS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN NOT ALLOWING PETITIONERS TO INTERVENE PRO INTERESSE SOU IN THE PROCEEDINGS IN SAID COURT TO PROTECT THEIR MARITIME LIEN FOR UNPAID DEMURRAGE; "II. WHETHER OR NOT THE COURT OF TAX APPEALS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN CONSIDERING THE URGENT MOTION TO INTERVENE (TO PROTECT MARITIME LIEN) DATED 3 JUNE 1999 AS SEEKING RECONSIDERATION OF THE VERY URGENT MOTION TO INTERVENE DATED 23 FEBRUARY 1999; "III. WHETHER OR NOT THE COURT OF TAX APPEALS HAS JURISDICTION TO ALLOW INTERVENTION PRO INTERESSE SUO TO PROTECT A MARITIME LIEN." (page 7 of the Petition for Certiorari with Preliminary Injunction and Urgent Prayer for a Restraining Order; page 8 of the Rollo ). In Our Resolution (promulgated on January 13, 2000), this Court required the respondents to comment to the petitioner's Petition for Certiorari with Preliminary Injunction and Urgent Prayer for a Restraining Order (page 101 of the Rollo ). On January 25, 2000, the Office of the Solicitor General filed a motion for extension of time to file their comment until March 1, 2000 (page 102 of the Rollo ), which was granted by this Court, hence, they were given an extension of up to April 1, 2000 within which to file Comment (page 104 of the Rollo ). Thereafter, respondents BLACKGOLD and PARANAGA filed their Comment dated March 22, 2000, praying for the dismissal of the said Petition for Certiorari with Preliminary Injunction and Urgent Prayer for a Restraining Order (pages 117-120 of the Rollo ). On March 30, 2000, the public respondent filed another motion for extension of time to file their comment of up to April 16, 2000 (pages 110-111 of the Rollo ), thus, on April 10, 2000, they filed a Manifestation in Lieu of Comment, praying that the "private respondent's comment be treated as public respondent's comment likewise and the petition be dismissed for lack of merit and because of forum shopping." (pages 121-123 of the Rollo ). Said Manifestation was noted by this Court (page 126 of the Rollo ). On June 5, 2000, JEFFERSON, GALEN and MARIMANCOR filed with this Court a Manifestation with Urgent Motion for the Issuance of Writ of Preliminary Injunction, praying that a "writ of preliminary injunction be issued in the meantime enjoining the Court of Tax Appeals from further proceeding with the case docketed as CTA Case No. 5712 entitled 'BLACKGOLD INTEGRATED SALES AND PARANAGA INTERNATIONAL vs. DEPUTY COMMISSIONER EMMA M. ROSQUETA and the DISTRICT COLLECTOR OR CUSTOMS, PORT OF SAN FERNANDO, LA UNION." (pages 127-130 of the Rollo ). This Court referred the said motion to respondents for comment within (10) days from notice (page 131 of the Rollo ). In the ensuing period, the public respondents filed two (2) motions for extension of time to file comment on petitioner's manifestation with urgent motion for issuance of writ of preliminary injunction (pages 132-135 of the Rollo ). Pending resolution of the foregoing two (2) motions, the public respondents filed a manifestation, the pertinent portion of which reads as follows, to wit: DHCSTa "xxx xxx xxx "2. The motion of the petitioners seeks to bar CTA from proceeding with the case until petitioner has intervened. "3. On September 22, 2000, the Court of Tax Appeals (CTA) rendered a Decision . . . Hence, petitioner's motion is moot and academic. "WHEREFORE, it is respectfully prayed that the motion for the issuance of writ of preliminary injunction be dismissed for being moot and academic." (pages 136-137 of the Rollo ). On October 26, 2000, this Court issued a resolution requiring the parties to "file their respective memoranda simultaneously within fifteen (15) days from receipt hereof, . . ." (page 159 of the Rollo ). The herein Petitioners filed their Comment on November 28, 2000 (pages 166-190 of the Rollo ), while the public respondents moved for an extension of time to file theirs up to December 29, 2000 (pages 160 and 164 of the Rollo ), which this Court granted (page 282 of the Rollo ). On December 1, 2000, public respondents filed a manifestation in lieu of memorandum, the relevant portion of which are as follows, viz : "xxx xxx xxx "2. On October 16, 2000, the public respondents filed another manifestation stating that the petition is already moot and academic because the Court of Tax Appeals which was sought to be enjoined from acting on CTA Case No. 5712 . . . had already rendered a decision dated September 22, 2000. "3. Hence, public respondents are of the view that there is nothing further to be discussed. "xxx xxx xxx "WHEREFORE, it is respectfully prayed that public respondents' two (2) manifestations be treated as their memorandum." (pages 283-284 of the Rollo ). In their counter-manifestation filed on December 8, 2000, the herein petitioners prayed that "this counter-manifestation be deemed as petitioners' reply memorandum and that the merits of the petition be resolved. . . ." (page 4 of the Counter-Manifestation). Apparently, the issues raised by the herein petitioners were anchored on the plea to review the factual conclusions reached by the Court of Tax Appeals. The petitioners ought to be minded that, it has been the long standing policy and practice of this Court to respect the conclusions arrived at by quasi-judicial agencies, especially the Court of Tax Appeals which, by the nature of its functions, is dedicated exclusively to the study and consideration of tax problems, and which has thus developed an expertise on the subject, unless an abuse or improvident exercise of its authority is shown. ( Commissioner of Internal Revenue vs. Court of Appeals , 313 SCRA 508). In the case under consideration, this Court discerns no abuse or improvident exercise of authority or discretion in order to reverse the findings arrived at by the Court of Tax Appeals, hence, We opted to uphold the same. After a careful examination of the records of the present case taking note also of the disputants' arguments in their respective pleadings, as well as the pieces of evidence submitted by the parties, We found that the assertions of the petitioners appeared to have no legal leg to stand on. We can synthesize the issues raised by the petitioners in this wise: Whether or not the Court of Tax Appeals may allow the herein petitioners to intervene pro interesse suo to protect a maritime lien? According to pertinent jurisprudence, the term intervention "refers to the proceeding by which one not originally a party to an action is permitted, on his own application, to appear therein and join one of the original parties maintaining the action or defense, or to assert a claim or defense against some or all of the parties to the proceeding as originally instituted. Such a third party may, upon the discretion of the court, become a party to a pending proceedings between others for the protection of some rights or interest alleged by him to be effected by such proceedings." (59 Am. Jur. 2d, 553). Intervention is "not a matter of right but may be permitted by the Courts when the applicant shows facts which satisfy the requirements of the law authorizing intervention." (59 Am. Jur. 2d, 565). Under Rule 19, Section 1 of the 1997 Rules of Civil Procedure, what qualifies a person to intervene is his possession "of a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof. . . . The court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenor's rights may be fully protected in a separate proceeding. As regards the legal interest as qualifying factor, the Supreme Court has ruled that "such interest must be of direct and immediate character not merely contingent or expectant so that the intervenor will either gain or lose by the direct operation of the judgment" ( Firestone Ceramics, Inc. vs. Court of Appeals , 313 SCRA 522). Too. The "interest must be actual and material, a concern which is more than mere curiosity, or academic or sentimental desire; it must not be indirect and contingent, indirect and remote, conjectural, consequential or collateral" ( Gibson vs. Revilla , 92 SCRA 219). To allow a movant not parties of the action to intervene, proceedings will become unnecessarily complicated, expensive and interminable. And this is not the policy of the law. Be it noted that, both requirements to allow intervention i.e., (a) it must be shown that the movant has legal interest in the matter in litigation, or otherwise qualified; and (b) consideration must be given as to whether the adjudication of the rights of the original parties may be delayed or prejudiced, or whether the intervenor's rights may be protected in a separate proceeding or not, "must concur as the first is not more important than the second." ( Saw vs. Court of Appeals , 180 SCRA 266 and Batama Farmers' Cooperative Marketing Association, Inc. vs. Rosal , 42 SCRA 408). We cannot invest nor render primary or secondary importance to either of these requirements for the law does not make any distinction. Each case must be decided according to its facts and merits, subject to the discretion of the Court. Accordingly, withal the presence of a legal interest, permission to intervene is subject to the sound discretion of the court, the exercise of which is limited by considering "whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties and whether or not the intervenor's rights may be fully protected in a separate proceeding" ( Big Country Ranch Corp. vs. Court of Appeals , 227 SCRA 161). Applying the preceding principles to this case, it is not at all difficult to rule against the intervention by the herein petitioners, because they do not possess actual and material, direct and immediate legal interest in the manner in litigation or in the success of either of the parties. Their interest is exclusively personal to them and would not be affected by the proceedings. In fact, such interest could be completely ventilated and fully protected in a separate suit. Viewed from the foregoing, We hold that there is a good and sufficient basis for the Court of Tax Appeals in disallowing the petitioners' motion to intervene on the ground that the "movants interest may be protected in a separate proceeding. . . It appearing . . . that . . . a claim for demurrage has already been filed with the proper Regional Trial Court (CTA Records, p. 280), thus giving the intervenor all the protections/remedies available in the said Court trying on the merits of its claim, . . ." (page 3-4 of the September 7, 1999 Resolution; pages 29-30 of the Rollo ). In other words, the Court of Tax Appeal's discretion is justified and reasonable. To sustain the position of the herein petitioners would be to run counter to the principle underlying "forum shopping" (page 123 of the Rollo ). Such absurdity can never be envisioned as permissible under the rules of intervention. It may be wise to add that, it is firmly settled in this jurisdiction that intervention will not be allowed when it will unduly delay or prejudice the adjudication of the rights of the principal parties, especially if intervenors rights may be fully protected in a separate proceeding. ( Banco Filipino Savings and Mortgage bank vs. The Monetary Board, et al ., G.R. 70054, Resolution En Banc, March 3, 1990). Intervention is not intended to change the nature and character of the action itself, or to stop or delay the placid operation of intervention is not proper where it will have the effect of retarding the principal suit or delaying the trial of the action. (67A C.J.S., Parties, 805). Also, in general, an independent controversy cannot be injected into a suit by intervention, (Ibid., 823), hence, such intervention will not be allowed where it would enlarge the issues in the action and expand the scope of the remedies. ( Fireman's Fund Ins . Co . vs . Gerlach , 128 Cal. Rptr. 39656 C.A. 3d 299). It is proper where there are certain facts giving intervenor's case an aspect peculiar to himself and differentiating it clearly from that of the original parties; the proper course is for the would-be intervenor to litigate his claim in a separate suit which was squarely done by the herein petitioners when they filed a complaint with the Regional Trial Court-Manila (pages 36-42 of the Rollo ), where their interests are no doubt amply be best adjudicated. Besides, inasmuch as the Court of Tax Appeals has already rendered a Decision on September 22, 2000, affirming in toto the December 4, 1998 decision of Deputy Commissioner Emma M. Rosqueta forfeiting the subject cargo in favor of the Philippine Government (pages 139-156 of the Rollo ), and hence, the life from which the petitioners intended to derive sustenance having been proceeded uninterrupted, it follows then that there is nothing more to aid or fight for since the right of intervention has ceased. Needless to state that We agree with the public Respondents' declaration that, and We quote" "xxx xxx xxx "2. On October 16, 2000, the public respondents filed another manifestation stating that the petition is already moot and academic because the Court of Tax Appeals which was sought to be enjoined from acting on CTA Case No. 5712 . . . had already rendered a decision dated September 22, 2000. "3. Hence, public respondents are of the view that there is nothing further to be discussed. ". . ." (pages 283-284 of the Rollo ) Petitioners herein would do well to reflect on the doctrinal rule that an intervention is merely collateral or accessory or ancillary to the principal action, and not an independent proceeding; it is an interlocutory proceeding dependent on or subsidiary to the case between the original parties. ( Ordoez vs. Gustilo , 192 SCRA 469). Since the records of the present case is bereft of any showing that there is an appeal from the Court of Tax Appeals' September 22, 2000 decision, We can therefore safety conclude that there would be no pending proceeding wherein the intervention may be based. It is significant and revealing that the petitioners themselves admitted in their Manifestation with Urgent Motion for the Issuance of Writ of Preliminary Injunction that, if the Court of Tax Appeals is allowed to proceed uninterrupted, a great injustice may result in that they would have been deprived of a lawful right without due process (page 2 of the Manifestation with Urgent Motion for the Issuance of Writ of Preliminary Injunction: page 128 of the Rollo ). Suffice it to say that such a procedural problem is no legal ground to compel allowance of and insist on their intervention. WHEREFORE, premises considered, the Petition for Certiorari with Preliminary Injunction and Urgent Prayer for a Restraining (dated January 5, 2000) is hereby DENIED. No pronouncement as to costs. SO ORDERED. Austria-Martinez and Aquino, JJ ., concur.