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Thursday, March 13, 2003
Council allies agree on freezing of P32M for lot
By Jasmin G. Suma-oy
Of Sun.Star Cebu
THE Cebu City Council yesterday authorized Mayor Tomas Osmeña “to exhaust all legal remedies to protect the rights and interest of the Cebu City Government,” instead of immediately paying P32 million to the Ortegas for a private lot.
Osmeña joined yesterday’s caucus of the Bando Osmeña-Pundok Kauswagan councilors to persuade them why the City should challenge the writ of execution of the Supreme Court, which ordered the payment.
In a letter to the council, the mayor sought the legislative body’s authority to withdraw the expropriation case.
Councilor Gerardo Carillo sponsored the resolution to authorize Osmeña “to exhaust all remedies.”
Officer-in-Charge (OIC) City Attorney Ralph Sevilla told Sun.Star they asked for the council’s authority “to exhaust all remedies” instead of directly withdrawing the expropriation case so that the action of the lawyers will not be limited.
The council was nearly called to a vote following several objections raised by the opposition bloc.
Damages
The opposition councilors raised apprehensions they might also be held liable for damages if they support Osmeña’s position.
During the discussion, Councilor Vicente Kintanar, of the opposition Kugi Uswag Sugbu, clarified with Carillo whether “all legal remedies” meant the approval or disapproval of Osmeña’s request to the council to be given authority to withdraw the expropriation case.
Kintanar is more inclined to believe City Attorney Ramiro Madarang, who said “a judgment that has become final and executory, as in the Ortega case, is no longer within the scope of the power or review of court.”
But Vice Mayor Michael Rama, presiding officer, said they don’t have to agree with Madarang’s legal opinion as they are only tackling the role of the legislature.
According to Rama, the councilors can approve Carillo’s resolution without necessarily saying whether they agree with the opinion of Madarang or with the mayor’s legal consultant, who found jurisprudence for contesting the writ of execution.
“But we have responsibilities to protect the interest of the City, so we have to do our share in good faith,” Rama said.
“Will that shield us from any damage claim if we withdraw because we’re depriving the lot owners the use of their property?” Councilor Danilo Fernan said.
Legal precedents
Vice Mayor Rama shares Osmeña’s view that there is no harm in trying legal remedies before making the payment.
Rama, a lawyer, pointed out SC jurisprudence that an execution of stay may be issued if there’s valid reason.
But like Councilor Jocelyn Pesquera, he said the councilors need more time to study the case to determine whether the SC decisions Osmeña is banking on in contesting the writ of execution can be applied in the Ortega case.
“We should not (beat) around the bush. We should not play games with the mayor.
We should tell him: you can’t file a withdrawal,” Kintanar said during the discussion.
Carillo assured Kintanar the resolution doesn’t mean they are granting the mayor’s request for an authority to withdraw the expropriation case.
Still, Kintanar registered his opposition.
Councilor Eugenio Gabuya Jr. also objected, saying if this is the case, then there is no need for the council to authorize the mayor to defend the case.
“Why are we giving him authority when he already has it?” Gabuya said.
Councilors Carmen Piramide and Manuel Legaspi abstained.
Legaspi earlier informed the council that before he became a councilor, he was the lawyer of the Ortegas in the case.
Backing out
Before Carillo’s resolution was approved, OIC City Attorney Sevilla filed last Monday before the RTC an omnibus motion to stay execution, modification of judgment or withdrawal of the case.
On Sept. 26, 1994, during Osmeña’s previous term, the City filed with the Regional Trial Court a petition for eminent domain seeking to expropriate the 2,856-square-meter lot in Barangay Hipodromo owned by the Ortega spouses.
On March 13, 1998, the RTC upheld the legal power of the City to expropriate the land.
On May 21, 1999, the RTC fixed the just compensation of the property at P11,000 per sq.m.
No appeal was taken, so the twin decisions became final and executory in 1999.
On Oct. 28, 1999, apparently convinced the expropriated property was not viable—and if only to back out from the case—the City filed with the RTC a petition seeking to set aside the twin decisions on the grounds of fraud, accident, mistake or excusable negligence.
The petition was denied by the RTC.
The Court of Appeals also denied the appeal, prompting the city attorney to elevate the case to the Supreme Court by way of appeal on certiorari.
For withdrawal
On Oct. 22, 2001, the Supreme Court decided against the City. The motion for reconsideration filed by the City was also denied.
A writ of execution was issued for the payment of the P32 million to the Ortega spouses.
City Attorney Ramiro Madarang had asked City officials to pay the Ortegas, saying there is no other option but to comply with the court order, which he said is “final and executory.”
Mayor Osmeña, however, is banking on the opinion of his lawyer-consultants—Raul Bitoon, Alan Gaviola and Sevilla—who have found SC jurisprudence to back the City’s move in withdrawing the expropriation case.
Osmeña is unwilling to pay for the property that, at P11,000 per square meter, is priced out of the range of potential socialized housing beneficiaries.
He relieved Madarang from handling the case and assigned an assistant, now OIC City Attorney Sevilla, to handle the case along with Bitoon.
Their conflicting opinions on the case have prompted Madarang to submit his irrevocable resignation to Osmeña.
(March 13, 2003 issue)
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