Tomawis v. Caudang

THIRD DIVISION

[A.C. No. 6874. July 24, 2019.]

UMBRA M. TOMAWIS, complainant, vs.ATTY. NORA TABAO CAUDANG, respondent.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, Third Division, issued a Resolution datedJuly 24, 2019, which reads as follows:

"A.C. No. 6874 (Umbra M. Tomawis v. Atty. Nora Tabao Caudang). — For resolution is a Complaint for Disbarment 1 filed by complainant Umbra M. Tomawis against respondent Atty. Nora Tabao Caudang, before the Integrated Bar of the Philippines (IBP), for dishonesty, misrepresentation and grave misconduct.

The Report and Recommendation 2 of Commissioner Pedro A. Magpayo, Jr. (Investigating Commissioner) of the IBP, Commission on Bar Discipline, dated April 8, 2005, is as follows:

REPORT AND RECOMMENDATION

Complainant Umbra M. Tomawis is in a petition filed with this Commission seeks the disbarment and perpetual disqualification from holding public office of respondent Atty. Nora Tabao Caudang.

Pursuant to Section 6, Rule 139-B of the Rules of Court, an order was issued on January 6, 2003 directing the respondent to submit her Answer, copy served the complainant, within fifteen (15) days from notice.

In compliance thereto, the respondent submitted her verified Answer on March 13, 2003.

Issues having been joined, the parties were notified to appear before the Commission on June 3, 2003.

However, it appearing that the respondent was not properly notified, the scheduled hearing was reset to July 9, 2003.

On this latter date, only the respondent and her counsel appeared. The complainant was absent. In a letter dated June 16, 2003, however, complainant explained the reason that prevented his appearance in person. In the same communication, the complainant advised that Atty. Dalidig Sumdad was authorized by him to appear in his behalf and that he is willing to submit the case for resolution on the basis of documentary evidence on record. aScITE

On July 9, 2003, when this manifestation of complainant was conveyed to the respondent, the latter interposed no opposition thereto. Wherefore, an order was issued directing the parties to submit their respective verified position papers with affidavits of witnesses and authenticated copies of documents and evidence within thirty (30) days in lieu of a full blown hearing. A party may file a reply if he so desires, after which the case may be deemed submitted for resolution, save in the event of need for clarificatory examination.

The complainant submitted his Position Paper on August 4, 2003 while the respondent filed hers on August 18, 2003.

In a letter received by the Commission on November 6, 2003, the complainant furnished this office a copy of the decision dated September 15, 2003 of the Regional Trial Court of Marawi City in Spl. Civil Action No. 820-02 entitled "Umbra Tomawis (petitioner) versus Hon[.] Habib Masjahad A. Hashim, [et al.] (Respondents)." SCA No. 820-02 was decided in favor of herein complainant and ordered the respondent in our case to cease and desist from further assuming the powers and functions of OMA Regional Director. This letter, more particularly, the decision of RTC Branch 8[,] Marawi City elicited a "Manifestation" from respondent.

An order was issued on December 19, 2003 directing the parties to inform this Commission if they are filing a reply. Complainant Tomawis advised that he will no longer submit a reply to respondent's position paper.

No response was however received from respondent despite service upon her of the order dated December 19, 2003. Complainant on the other hand advised that he is waiving his right to submit a reply position paper (letter dated Jan. 15, 2004).

The antecedent facts based on the documents and pleadings submitted are the following:

Herein respondent was appointed as Regional Director of Region XII-B on September 1, 1987 by then Office on Muslim Affairs Executive Director, Jiamil Dianalan pursuant to Section 8 of Executive Order No. 122-A, as amended by E.O[.] No. 295. At the time of respondent's appointment, the OMA Bureau, staff and Regional Directors were not yet classified as Career Executive Service positions. Respondent Caudang's appointment was thus approved by the CSC as a permanent one.

On February 18, 1991, the directorship positions in the Office of the Muslim Affairs, including the position of Regional Director, were reclassified as CES positions. It was only then that CES eligibility has started to be required for permanent appointment to the positions. The date and effect of such reclassification is embodied in CSC Resolution No. 94-2925 dated May 13, 1994 and CSC Memorandum Circular No. 21 dated May 13, 1994 which provided that "incumbents of positions which are declared to be Career Executive Service positions for the first time pursuant to this Resolution who hold permanent appointment thereto shall remain under permanent status in their respective positions."

Then President Fidel V. Ramos terminated respondent's services. On February 3, 1993, herein respondent was notified of her replacement as OMA Regional Director of Regional Office XII-B by herein complainant Umbra Tomawis. Respondent then requested for a ruling from the Civil Service Commission on the status of her appointment. Pending such request, respondent filed a petition denominated as quo warranto against the complainant before the Supreme Court on April 29, 1993. The petition (which was really for declaratory relief) was however dismissed due to technicalities of lack of a certification of non-forum shopping and verified statement of material dates.

On January 4, 1994, the Civil Service Commission promulgated Resolution No. 94-0014 declaring herein respondent to be the lawful incumbent to the office of OMA Regional Director of Regional Office XII-B. The resolution specifically noted that respondent's appointment by then Executive Director of OMA Jamil Dianalan was under permanent status as approved by the CSC and hence she cannot be removed from office except for cause and after due process, the Executive Director's appointive power being derived from Section 8 of Executive Order No. 122-A, Section 8 of which reads: HEITAD

Section 8. Administrative supervision and control. — x x x Except presidential appointees, the appointment of and the imposition of disciplinary measures on the same personnel shall likewise be vested in the Executive Director[.]

On February 4, 1994, herein respondent filed a petition for quo warranto before the Court of Appeals invoking its original jurisdiction under Rule 66 of the Rules of Court docketed as CA-G.R. SP No. 33246. On June 20, 1994, the Court of Appeals promulgated a decision granting respondent's petition. However, in an Amended Decision promulgated on October 17, 1994, the Court of Appeals ruled that respondent's petition should not have been entertained in the first place for being violative of procedural rules on non-forum shopping. The Court of Appeals took note that there was a similar petition filed before the Supreme Court which had earlier been dismissed with finality.

Respondent then moved for the issuance of a writ of execution by the Civil Service Commission of CSC Resolution No. 94-0014 cited above. But in Resolution No. 96-6231 dated September 23, 1996, the CSC dismissed respondent's motion on the ground that since respondent's services were terminated by former [P]resident Fidel Ramos on 8 February 1993 (and replaced by herein complainant) prior to the filing of the quo warranto petition in the Supreme Court, it can no longer rule on the legality of respondent's separation for the reason that the President's action [may be] reviewed only by the High Court.

Respondent filed a motion for reconsideration. Acting on respondent's motion for reconsideration, the CSC ruled:

As pointed out in its Resolution No. 96-6231, a material fact transpired which renders execution of said CSC Resolution unjust or impossible. This material fact was not made known to the Commission. Moreover, a Director who does not meet all the qualifications for the position, including third level eligibility, does not enjoy security of tenure[.]

The material fact referred to by the CSC was [President]Ramos['] termination of respondent's services. Respondent thus filed a petition for review of the resolution of the Civil Service Commission before the Court of Appeals (CA G.R.-SP No. 46923). The petition was denied on December 24, 1999.

On July 3, 1998, complainant was relieved from the position of Regional Director of Region XII-B, OMA. However, he was re-appointed on July 31, 2000 on a temporary appointment by then OMA Executive Director Naga. On December 18, 2001, then OMA Executive Director Habib Masjahad n A[.] Hashim issued a Memorandum to complainant calling his attention to the temporary status of his appointment, and therefore he did not hold any security of tenure.

On March 8, 2002, Director Hashim issued Office Order No. 0079, Series of 2002 ordering respondent's reinstatement based on CSC Resolution No. 94-0014. However, the CSC denied respondent's request for the CSC to issue an order affirming the continuity of her service from the time she was dismissed up to the time she was reinstated. The Civil Service Commission denied such request holding that respondent's reinstatement has no legal basis as "CSC Resolution No. 94-0014 was, in effect, reversed by the Court of Appeals" in its October 17, 1994 Amended Decision in CA-G.R. SP No. 33246. In its Opinion No. 324, Series of 2002, the CSC sent a letter to Director Hashim suggesting that an investigation be conducted in view of its stand that respondent cannot be reinstated to the position.

Meantime, complainant filed an action for injunction and prohibition against respondent and Director Hashim before the Regional Trial Court, Branch 8, Marawi City docketed as Special Civil Action No. 820-02, as well as a verified complaint dated March 25, 2002 against Director Hashim for alleged violation of the Anti-Graft Law for issuing the assailed office order. The Presidential Anti-Graft Commission (PAGC) conducted a fact-finding inquiry on the charges against Hashim. The Office of the President, through Executive Secretary Alberto Romulo dismissed the charges, stating: ATICcS

A perusal of the decisions of the Court of Appeals, the Supreme Court and the CSC Resolutions alluded to by the complainant in his reply will clearly reveal that none of them has ever abrogated CSC Resolution No. 94-0014. x x x Civil Service Commission Resolution No. 94-0014 being final and executory already ruled on the questioned position that indeed Atty. Nora Caudang is the lawful incumbent. As such, the reinstatement of Atty. Nora Tabao Caudang to her rightful position as Regional Director of OMA Regional Office No. XII-B is just and lawful. Complainant has no vested right over the position and his right has never been transgressed and/or violated in the process of such reinstatement.

As previously stated, the Civil Service Commission issued on July 29, 2002 Resolution No. 021000 denying herein respondent's request for the said commission to issue an Order affirming the continuity of her service from the time she was first terminated on February 8, 1993 by former President Fidel V. Ramos up to her reinstatement by Executive Director Hashim.

On September 15, 2003 herein complainant obtained a favorable decision in Spl. Civil Action No. 820-02. Respondent was enjoined by the RTC, Branch 8, Marawi City from further assuming the powers and functions of OMA Regional Director, Region XII-B, Marawi City.

Subsequently, however, the same RTC, Branch 8, Marawi City issued an order dated January 7, 2004 upholding respondent's right to the office and thus setting aside complainant's petition for injunction and prohibition. The dispositive portion of said Order provides:

WHEREFORE, on the basis of the foregoing documents, the legal authority of respondent Caudang as Regional Director of the Office on Muslim Affairs, Region XII-B, Marawi City, is administratively upheld by the Office on Muslim Affairs (OMA) and the Office of the President of the Philippines. Consequently, the decision dated September 15, 2003 and the subsequent order affirming the said decision in the instant petition for injunction and prohibition are hereby SET ASIDE and the same is DISMISSED for being moot and academic.

Complainant, on January 16, 2004, moved for the execution of the RTC's earlier decision enjoining respondent from holding office on the ground that the same had attained finality, not having been appealed by herein respondent. The RTC, acting on complainant's motion for issuance of a writ of execution, issued an order on April 23, 2004 granting the writ. Judge Santos Adiong then issued the writ on the same day.

On May 7, 2004, respondent moved to quash the writ. But, said motion was denied in an order dated May 19, 2004 by Judge Adiong. Respondent filed a motion for reconsideration which was heard without the presence of Tomawis' lawyer in the morning of June 3, 2004.

In the afternoon of June 3, 2004[,] however, Provincial Sheriff Cairoding Maruhom proceeded to the office of the OMA Region XII-B to implement the writ of execution. A commotion ensued between relatives of the herein parties for which reason the City Prosecutor intervened and came back with a handwritten note from Judge Adiong which states that the decision granting the injunction and prohibition did not include herein complainant's reinstatement to the office which note was followed by a formal order affirming that the decision dated September 15, 2003 does not include the reinstatement of Tomawis. On the same day, current OMA Executive Director Datu Zamzamin Ampatuan issued Office Order No. 04-270 installing herein complainant to the contested position. In a Memorandum dated June 24, 2004, Director Ampatuan however clarified his office order that complainant's stay is primarily in a hold-over capacity and he is to perform his duties until a new appointment is issued. TIADCc

Herein respondent filed a petition in the Court of Appeals docketed as CA-G.R. SP No. 84424 questioning the RTC's decision granting complainant's petition for injunction and prohibition. The Court of Appeals, in a Decision dated September 8, 2004, declared null and void the writ of execution issued by Judge Adiong in Special Civil Action No. 820-02 on the premise that herein respondent did not receive a copy of the order dated December 15, 2003 denying her motion for reconsideration. The Court ruled that while it is true that the Order denying her motion for reconsideration was served by registered mail on December 23, 2003, it is likewise true that no proof of actual receipt of the first notice was presented in court, thus no constructive notice of the said order can be said to have been effected. Moreover, the Court of Appeals ruled that complainant had no legal personality to file a Special Civil Action No. 820-02 in the RTC as he was merely holding the contested office in a hold-over capacity. Complainant's status was temporary as he does not possess the requisite CES eligibility for the position and therefore could not possibly acquire security of tenure. Granting however that respondent was a de facto officer as complainant argued, respondent's position cannot be attacked collaterally as her ouster can only be effected through a direct proceeding, particularly a quo warranto instituted only by the person who claims to be entitled to the office or by the Republic of the Philippines represented by the Solicitor General or a public prosecutor. Pertinent portions of the decisions of the Court of Appeals are quoted hereunder:

Tomawis himself acknowledges that he cannot claim legal entitlement to said position. His last appointment dated 31 July 2000 extended to him by then OMA Executive Director Naga, Jr. is admittedly temporary for his lack of the required CES eligibility. It is well-settled that an appointment which is temporary in nature can be terminated at the pleasure of the appointing power, without notice, and regardless of grounds or reasons. A temporary appointee has no tenure of office and another person may be appointed in his place and stead without notice to him or any form of hearing.

The present complaint was lodged by complainant averring that respondent persuaded then Executive Director Hashim to place her in office by presenting only CSC Resolution No. 94-0014, but hiding from Director Hashim the fact that there were adverse decisions dismissing respondent's quo warranto petition. Complainant also contends that respondent's claim for back salary before the Department of Budget Management for the period covering the time she was ousted from office until her reinstatement to the contested position has no legal basis.

This Commissioner will render his opinion only on the charges of dishonesty, misrepresentation and grave misconduct against respondent, the power to resolve the issue of the propriety of granting back salaries to respondent being reposed elsewhere.

In her verified Answer, respondent averred that CSC Resolution No. 94-0014 attained finality and executory character there having been no appeal, or even a motion for reconsideration thereto filed by herein complainant. Moreover, respondent stated that she gave copies of the pertinent decisions of the Supreme Court, Court of Appeals and the Civil Service Commission to Director Hashim and it was only after being apprised of the facts that he issued Office Order No. 0079 series of 2002.

Upon the other hand, in his Position Paper, complainant contended that CSC Resolution No. 94-0014 cannot be a legal basis for herein respondent's reinstatement as a quo warranto proceeding need be successfully brought first by respondent before she can validly claim the contested position.

In her Position Paper, respondent pointed out moreover that the reclassification of the position of OMA directorship from a non-CES position to a CES position did not affect her right to hold the office because pursuant to CSC Resolution No. 94-2925 and CSC Memorandum Circular 21 OMA Regional Directors holding permanent positions before the reclassification retained their right to hold their positions in a permanent capacity. Moreover, respondent points out that the decision dated October 17, 1994 of the Court of Appeals in the quo warranto proceedings she filed docketed as CA-G.R. SP No. 33246, as well as the decision of the Supreme Court in G.R. No. 119084 contained no pronouncement voiding or abrogating CSC Resolution 940014 which declared her right to continue in office. AIDSTE

Judging from the events which have transpired in the course of the arduous legal battle between the herein parties, and for lack of substantial evidence to prove overt acts of misrepresentation or fraud on the part of herein respondent, this Commissioner rules respondent not guilty of the charges of dishonesty or misrepresentation.

Obviously, there are intricate questions of law involved in the contest herein parties have involved themselves. Those legal issues are better left for the proper court to resolve. The Commission is however prepared to rule that respondent's latest reinstatement to the position was not procured through fraud or misrepresentation. To begin with, complainant's appointment to the office was in a temporary capacity, which means that he did not enjoy security of tenure. Complainant may thus be replaced anytime by the appointing authority as what happened earlier in 1998 when then Executive Director Acmad Tomawis appointed Engr. Dardagan Maruhom in his stead. Moreover, the Office of the Ombudsman found that no irregularity, impartiality and bad faith attended respondent's reinstatement to the position.

As to which of the conflicting resolutions of the Civil Service Commission is correct is an issue this Commission has no authority to pass upon. Suffice it to state that among the issuances of the Civil Service Commission are Resolution 94-2925 and Memorandum Circular No. 21 both dated May 31, 1994 which provide that incumbents of positions which were declared Career Executive Service Positions for the first time and who hold permanent appointments thereto remain under permanent status in their respective positions. Respondent's claim to office being anchored on these issuances, to the mind of this Commissioner, it is a bona fide claim, and thus no dishonest motive can be imputed to respondent. Moreover, as observed by the Office of the Ombudsman, nothing in the resolutions issued by the Supreme Court and the Court of Appeals in the quo warranto proceedings respondent instituted had nullified CSC Resolution No. 94-0014. Respondent's petition for quo warranto was dismissed by the Supreme Court for lack of a certification of non-forum shopping. The Court of Appeals in its Amended Decision dismissed the quo warranto petition due to forum-shopping after taking cognizance of the dismissal of a similar petition by the Supreme Court. Thus, there were actually no rulings on the merits regarding the issues involved in the case.

In fine, therefore, the fierce determination exhibited by the respondent in pursuing reinstatement to the office of Regional Director Region XII-B, OMA was not tainted with malice or bad faith but anchored on a legal conviction that she has a perfect right to the position by virtue of having been extended a permanent appointment which was approved by the Civil Service Commission.

In view of all the foregoing, it is recommended that the complaint be dismissed for lack of merit.

RESPECTFULLY SUBMITTED. 3 (Citations omitted.)

In Resolution No. XVI-2005-163 4 dated June 25, 2005, the Board of Governors of the IBP adopted and approved the Report and Recommendation of the Investigating Commissioner, and likewise dismissed the complaint for lack of merit.

In view of the foregoing, finding the recommendation of the Integrated Bar of the Philippines to be fully supported by the evidence on record and applicable laws, the Court RESOLVES to DISMISS the case against Atty. Nora Tabao Caudang, and consider the same as CLOSED and TERMINATED. AaCTcI

SO ORDERED."

 

Very truly yours,

(SGD.) WILFREDO V. LAPITANDivision Clerk of Court

 

Footnotes

1.Rollo, pp. 1-2.

2.Id. at 204-217.

3.Id. at 204-217.

4.Id. at 203.

n Note from the Publisher: Written as "Mujahab" in the original document.