Republic of the Philippines

COURT OF APPEALS
Cagayan de Oro City
22nd DIVISION
RUDERIC C. MARZO, CA-G.R. SP No. 07906-MIN
Petitioner,
-vs-

OFFICE OF THE OMBUDSMAN

and DEXTER REY T. SUMAOY,
Respondents,
x-----------------------------------x
FREDERIC W. SIAO, ET. AL., CA-G.R. SP No. 07925-MIN
Petitioners,
-vs-

Atty. DEXTER REY T. SUMAOY,

Respondent,
x-----------------------------------x
EULALIO G. GAITE, CA-G.R. SP No. 07932-MIN
Petitioner,
-vs-

Atty. DEXTER REY T. SUMAOY, ET. AL,

Respondents,
x---------------------------------------x
PROVIDENCIO A.ABRAGAN, JR., CA-G.R. SP No. 07952-MIN
Petitioner,
-vs-

Atty. DEXTER REY T. SUMAOY,

Respondent,
x--------------------------------------x

MEMORANDUM

PRIVATE RESPONDENT, in compliance with the June 27, 2017 Resolution

received on July 18, 2017 directing the contending parties to file their respective
memoranda within fifteen (15) days from receipt hence Private Respondent has
on or before August 2, 2017 within which to file his memorandum. This
Memorandum is filed on August 1, 2017 hence within the period required by
above-cited resolution, and respectfully avers:
 1. Instant Memorandum seeks to support the findings and the
resolution of the Office Ombudsman that the above-named Petitioners including
then City Mayor Lawrence Ll. Cruz of Iligan City, who was unfortunately dropped
by the Office of the Ombudsman because of a mere “technicality”, committed
grave misconduct and conduct prejudicial to the best interest of the service when:

I. ARGUMENTS

A. PETITIONERS, with manifest partiality, evident bad faith

and/or inexcusable negligence, conspired and confederated in
crafting, approving and implementing the Contract of Lease of a
parcel of land for its then Integrated Bus and Jeepney Terminal (IBJT)-
Southbound Project unjustifiably setting aside the requirements of
R.A. 9184 otherwise known as Government Procurement Reform Act
particularly on the provision on competitive public bidding;

B. The illegal conspiracy and confederation of the above-

mentioned PETITIONERS in crafting and concluding the above-cited
Contract of Lease without regard of due process required by law
resulted to undue injury to the City Government of Iligan City and
some private persons, and worst, the conspiracy resulted to
unwarranted benefits, undue advantage and preference to some
personalities in Iligan City;

C. On Petitioner Ruderic C. Marzo's contention, through his

counsel, Atty. Tomas O. Cabili, with all due respect, the Honorable
Investigator did not commit grave error of law and serious
irregularity prejudicial to the interest of respondent Marzo when she
did not dismiss the complaint outright pursuant to Sec. 20, RA 6770;

D. The condonation doctrine enunciated in the case

“Aguinaldo vs. Santos” (G.R. 94115) has been abandoned by the
Supreme Court hence inapplicable in the instant case; and

E. Last but not the least, the Joey Marquez case where the
Supreme Court ruled that, "absence of public bidding does not
necessarily mean that a contract is disadvantageous to the
government (Joey P. Marquez vs. Sandiganbayan-4th Division, G.R.
Nos. 182020-24, September 2, 2009) is not applicable in the instant
case.

II. PERTINENT FACTS AND CIRCUMSTANCES

2. During the time of then Iligan City Mayor FRANKLIN M. QUIJANO, the
Iligan Bus and Jeepney Terminal (IBJT) was constructed taking into consideration
of the volume of the traffic and the future needs hence said terminal was large
enough to accommodate the riding passengers, buses and jeepneys plying from
and to Iligan City;

3. However, before the construction of said terminal was finally

completed as some details of which remain to be completed albeit some of the
major areas can be utilized, the same was opened to the public and has been
operational ever since;

4. On September 21, 2004, despite the situation that above-described

terminal was not fully utilized, the members of the Sanggunian Panlungsod
passed Resolution No. 04-628, entitled, “RESOLUTION CONFIRMING AND
RECTIFYING THE LEASE AGREEMENT ENTERED INTO BY AND BETWEEN THE
KIWALAN LUMBER COMPANY (KILUMCO) REPRESENTED BY ITS ADMINISTRATOR
MR. AMADOR A. LLUCH AND THE CITY GOVERNMENT, REPRESENTED BY THE
HONORABLE CITY MAYOR LAWRENCE LL. CRUZ, AS SITE OF THE TEMPORARY
SOUTH-BOUND TERMINAL OF ILIGAN CITY” a nine (9) year period contract
commencing on July 1, 2004;

5. Without conducting any competitive public bidding said lease

agreement was executed and implemented. Said contract was later on amended
and supplemented with SP Resolution No. 08-963, the pertinent subject of which
is the annual ten percent (10%) increased of the rental of the leased property, the
Amended/Supplemental Lease Agreement was executed on December 23, 2008;

6. On March 4, 2013, on the eve of the 3rd and last term of then City
Mayor Lawrence Ll. Cruz, the Sanggunian Panlungsod deliberated and passed SP
Resolution No. 13-191, entitled, “AUTHORIZING HIS HONOR, CITY MAYOR
LAWRENCE LL. CRUZ, TO ENTER INTO AND SIGN THE RENEWAL OF THE CONTRACT
OF LEASE WITH SALVATORI DEVELOPMENT CORPORATION, REPRESENTED BY MR.
AMADOR LLUCH, FOR THE LEASE OF THAT PARCEL OF LAND OWNED BY THE
LATTER LOCATED AT CAMAGUE, ILIGAN, WHICH IS BEING UTILIZED FOR THE
ILIGAN BUS AND JEEPNEY TERMINAL (IBJT) SOUTHBOUND, FOR A TERM OF FIVE
(5) YEARS STARTING FROM JULY 1, 2013 TO JUNE 30, 2018”;

7. Said resolution was approved despite the knowledge that then

Mayor Cruz’ term will end on June 30, 2013 and the contract will actually starts on
July 1, 2013, the day when then City Mayor Cruz will not anymore have the
authority to approve said contract of lease, and despite the non-constitution of
the Appraisal Committee which will determine the value of the parcel of land
subject of the lease;

8. Then City Mayor Cruz signed and approved the Contract of Lease for
the period July 1, 2013 to June 30, 2018 and implemented the same without
conducting competitive public bidding as required by RA 9184 otherwise known
as the Government Procurement Reform Act; and
 9. It was later on found out that for nine (9) long years, some major
provisions of said contract were not complied with, despite the non-compliance,
the Petitioners continues to approve the contract of lease;

10. It was also discovered that the Petitioners had been surreptitiously
allowing SDC to rent out a portion of the location and/or area subject of the
Contract of Lease to several business establishments including a gasoline station,
the monthly rental of which went to the pocket of SDC rather than to the City of
Iligan;

III. DISCUSSION

PETITIONERS, with manifest partiality, evident bad

faith and/or inexcusable negligence, conspired
and confederated in crafting, approving and
implementing the Contract of Lease of a parcel of
land for its then Integrated Bus and Jeepney
Terminal (IBJT)- Southbound Project unjustifiably
setting aside the requirements of R.A. 9184
otherwise known as Government Procurement
Reform Act particularly on the provision on
competitive public bidding;

1. The Supreme Court, in the case of Sonia V. Seville vs. Commission on

Audit (G.R. No. 177657 November 20, 2012), in the pertinent portion, provides:

“In grave misconduct, the elements of corruption, clear intent

to violate the law, or flagrant disregard of an established rule must
be evident.4 Misconduct, in the administrative sense, is a
transgression of some established and definite rule of
action…considered grave offenses for which the penalty of dismissal
is meted even for first time offenders.6

2. On the other hand, in the Office of the Ombudsman-Visayas and

Emily Rose Ko Lim Chao vs. Mary Ann T. Castro (G.R. No. 172637 April 22, 2015),
the Supreme Court, in the pertinent portion, ruled:

“we explained that acts may constitute conduct prejudicial to the best
interest of the service as long as they tarnish the image and integrity
of his/her public office. Additionally and contrary to the CA’s ruling,
conduct grossly prejudicial to the best interest of the service may or
may not be characterized by corruption or a willful intent to violate
the law or to disregard established rules.2”

3. In the instant case, there is clear intent to violate the law when the
Petitioners summarily set aside the requirements of Republic Act (R.A.) 9184
otherwise known as the Government Procurement Reform Act particularly the
need for a public competitive bidding to develop and procure a private property
owned by a Lluch, a relative of the then City Mayor Lawrence Ll. Cruz, albeit not
within the 4th degree of consanguinity, for their Integrated Bus and Jeepney
Terminal – Southbound at Camague, Brgy. Tomas Cabili, Iligan City. Such illegal
acts of the Petitioners constitute conduct prejudicial to the best interest of the
service as the same tarnished the image and/or integrity of their respective
offices.

4. Petitioners, who are all public officers when they committed the
illegal and improper act, contended that they do not need to observe to the
generally required competitive public bidding to lease an area of for the
Southbound Integrated Bus and Jeepney Terminal on the ground that "time is of
the essence", a substantial modification from its earlier stance that it is a "waste
of time" to conduct a competitive public bidding for the lease of a space for a
southbound jeepney and bus terminal citing the exception of the rule provided in
section 53.2 of the IRR of R.A. 9184 which provides:

“Emergency cases. In case of imminent danger to life or

property during a state of calamity, or when time is of the essence
arising from natural or man-made calamities or other causes where
immediate action is necessary to prevent damage to or loss of life or
property, or to restore vital public services, infrastructure facilities
and other public utilities. In the case of infrastructure projects, the
procuring entity has the option to undertake the project through
negotiated procurement or by administration or, in high security risk
areas, through the AFP” (emphasis supplied)

Petitioner Gaite’s
Damning Admission

5. Petitioners’ defense of “failure-to-abide-with-requirements-of-the-

law-because-of-emergency-situation” is obviously a mere afterthought, a
desperate attempt to justify the mess they are in. In assailing the decision of the
Office of the Ombudsman, Petitioner Gaite, through his Motion for
Reconsideration, gave a contrary view or admission on how the graft-riddled
contract, as the Office of Ombudsman would like to describe the contract of lease
subject of the controversy, was crafted and then implemented.

6. Perhaps his being a former priest got the better of him because
Petitioner Gaite, a lawyer by profession, instead of insisting their innocence of the
impropriety leveled against them, gave a contrary account of what had happened
before the implementation of subject Contract of Lease. Whatever the reason of
his revelation, it would appear that it will not help his cause and that of the other
Petitioners of the instant case.
 7. In the particular portion of Petitioner Gaite’s pleading which the
Office of the Ombudsman considered as damning admission, among others,
states:

Xxx It was at this point that some of the city’s officials made
the suggestion that perhaps the Lluch family (an old and respected
family in the city known for their philantrophy) could be asked to
help solve the city’s problem. At that time, it was already well-
known in Iligan City that the Lluch family had already made many
donations of land to the city, among which are present site of the
Iligan City Public Hospital, sites of several public schools – one of
which is the Dona Juana Elementary school which is situated just
across the City Public Hospital, and the Iligan City Public Market at
the heart of the city. At that time, the estate of the patriarchs of the
Lluch family was still undergoing settlement and the same had not
been partitioned by the heirs. At the request of the city
administration, however, and because of the pressing need therefor,
the Lluch heirs agreed to let the city use a portion of the estate
consisting of about (2) hectares of the estate even before the a
formal agreement could be entered into, and in addition, the same
heirs agreed to donate a portion consisting of almost half a hectare
to the city so that the same could be used as access roads”;

8. Such revelation of Petitioner Gaite would confirm that the other

Petitioners did not intend to submit to the procurement process required by R.A.
9184 as it is already fixed in their minds that they will develop and leased a
portion of the Lluch estate as location for their Southbound Integrated Bus and
Jeepney Terminal (IBJT) Project.

The Lluch Family of Iligan City

9. Who are these Lluch family and/or heirs referred to in petitioner

Gaite’s admission? Then City Mayor Lawrence Ll. Cruz, the former Mayor who
practically caused the execution of the subject Lease, is one of the illustrious
members of this clan like the owners of the Kilumco and later on the Salvatori
Development Corporation, the same corporation which engaged the City of Iligan
to provide the location of jeepney and terminal project, then headed by then City
Mayor Lawrence LL. Cruz who is closely related with contracting party albeit not
in a prohibited relationship required by law as later on discovered.

The Traffic Situation in Iligan City in 2004, 2008 and 2013

10. Was there an emergency situation in 2004, 2008 and 2013 in Iligan
City which compelled the respondents to set aside the requirements of the RA
9184 otherwise known as Government Procurement Reform Act? Can the alleged
traffic situation during above-cited years considered grave enough to be
considered as emergency situation which would justify their unilateral act of
negotiating and approving the contracts of lease subject of the controversy? In
other words, can the alleged traffic situation in Iligan City during those years
exception to the rule on the requirement of competitive public bidding? Without
any doubt, the answers of the above-enumerated questions are in the negative;

11. Contrary to the Petitioners’ contentions which are obviously another

afterthought, the traffic problem in Iligan City during those years is not an
emergency situation contemplated by law which could justify their decision to
resort to negotiated contract of lease. It is noteworthy that City of Iligan has
already a newly constructed integrated bus terminal then which has substantially
lost its utility after the respondents (party members opposing Atty. Franklin
Quijano, then City Mayor of Iligan City who caused the construction of the bus
terminal located at Tambo, Iligan City)resorted to having another bus and jeepney
terminal;

12. The exception to the rule on competitive public bidding

contemplates to a situation when there is an emergency situation hence the need
to resort to negotiated contract. In the instant case, the respondents and their
predecessors have enough and adequate time to conduct a competitive public
bidding;
13. With all due respect, the traffic situation in Iligan City during the
above-cited years is not a life and death situation as the respondents would like
to suggest which could justify resorting to a negotiated contract. Just like any
other growing cities, the traffic gridlock only occurs during “rush” hours or during
abnormal situations such as traffic accidents, city-wide activities and the like.
During nighttime and in-between the “rush” hours, traffic flow is perfectly normal
for a growing city. In other words, the traffic problem of Iligan City is not 24 hour
occurrence hence there is no emergency situation that would justify the non-
observance of law on competitive public bidding.

The Offer to Foot the Development Cost of the Location

14. In the pertinent portion of the “WHEREAS” clause of the 2004 lease
contract, it provides:

“WHEREAS, subsequent negotiation pursued by Kagawad

Providencio Abragan (the elder), however, citing that the entire
development cost is estimated to be at Two Million, more or less that
will be spend (sic) by the City to clear and backfill the area, including
the construction of a temporary terminal, convinced KILUMCO to
reciprocate and compensate the said cost, by reducing the rate of
rentals from P12.00 to a reasonable rate of P3.00 per square meters
(sic)”;
 15. The implication of said clause, which serves as one of the primary
premises/bases of the said contract of lease, would only confirm that there was
never an intention to conduct a competitive public bidding despite having enough
time to conduct one;

16. To allocate P2,000,000.00 taxpayers’ money in order to spend for the

development of a private property would confirm the respondents’ grim
determination to exclude other private individuals from offering their properties
as a possible site of the bus terminal. It would appear that said parcel of land of
the Lluch family is already earmarked as a site of the bus terminal at all cost to the
exclusion of other areas which could have been more suitable and could have
given the City of Iligan better deal if the owners of the same were given the
opportunity;

17. The respondents, particularly those who have participated in the

2008 and 2013 agreement of lease, could have corrected the anomalous 2004
agreement of lease, however, they merely nodded their heads in approval
without even asking and knowing if the provisions and/or conditions of the
original contract of lease are complied with. As discussed later on, the pertinent
provisions were not complied with to the great disadvantage of the government;

18. Granting but not conceding that there is an emergency situation in

2004 that needs to be addressed promptly, the 2004 agreement, as the
respondents would like to impress, would have the effect of eliminating the
emergency nature of the traffic situation in Iligan City thus there is no more
reason for some respondents, particularly those who are involved in 2008 and
2013 agreement, to resort to a negotiated contract with the Salvatori
Development Corporation (SDC);

19. As diligently explained, the involved respondents, instead of initiating

the conduct of a competitive public bidding as required by law, gave the City
Mayor then the authority to amend and then later on, renew the agreement of
lease;

Contrary to their contentions, respondents have

caused undue injury to the City Government of
Iligan as well as its constituents. They have given
unwarranted benefits, advantage or preference in
the discharge of his functions in favor to Kilumco
and then later on, to the Salvatorri Development
Corporation (SDC), a privately owned business
enterprise

The Consequence of the Failure to Conduct Competitive Public Bidding

 20. As relayed in the assailed decision, the absence of a competitive
public bidding has “effectively deprived the City Government of the chance to
obtain the best, if not, the most reasonable price”. Some prospective bidders
could have offered a better deal without the City spending a fortune to develop a
private property. These bidders were unjustifiably deprived of the chance or
opportunity to do business with the City Government.

21. Despite the blatant non-compliance of the pertinent provisions of the

2004 agreement, the involved respondents approved the 2008 and 2013
agreements to the extreme prejudice of the City Government and of Iligan and its
constituents;

The Failed Promise to Connect the

National Highway to the Bacayo Road

22. To ease the traffic in the said area, the contracting parties agreed
that “to further compensate the cost of the development of the area, KILUMCO
bind, promised, and further obligate to donate a road lot within the area,
consisting of 4,451 square meters, that will connect the National Highway to the
Bacayo Road, with a minimum appraised value of P2,500.00 per square meter...”.
While the City of Iligan has been diligently paying the rental as agreed upon, the
parties of the agreement has not done their part in connecting the National
Highway to Bacayo Road even until the present administration of the City has
decided to abrogate said anomalous contract of lease;

23. Unfortunately, despite the blatant non-compliance of the agreement,

the involved respondents still amended, renewed and/or approved the
agreement to the prejudice of the constituents of Iligan City; The unjustified
failure to connect to a secondary road thus resulting to traffic congestion in the
area has actually deprived the Iligan City of the benefits which they have already
actually paid for;

Agreement to Lease only Twenty Thousand Square Meters with a 79.3

wide opening along the National Highway

24. The August 21, 2004 agreement to lease between the City of Iligan
Lawrence Lluch Cruz, then City Mayor of Iligan and Mr. Amado A. Lluch provides
that, “the total area that will be lease by the SECOND PARTY is limited only to
Twenty Thousand Square Meters, more or less”;

25. Based on the agreement, a 79.3 meters wide opening along the
National Highway is available for use for the City of Iligan. However, in the said
location, a gasoline station was constructed and has been in operation before the
SP’s resolution extending the life of the contract from July 01, 2013 to July 01,
2018; Going with the petitioners’ contention that the rented location is in the
inner portion, the agreement of 79.3 meters wide opening along National
Highway would not be followed;

Petitioner Gaite’s Additional Telling and Confirming Revelation

26. It is also noteworthy to mention the admission of petitioner Eulalio

G. Gaite detailed in his Petition for Review. Perhaps this is the petitioner Gaite’s
way of telling that he is not in any way involved of the crime but he was
unfortunately in the place at a wrong time; or that he is the least most guilty
among the involved Petitioners;

27. Against his interest, petitioner Gaite actually confirms the existence
of the impropriety in the implementation of said MOA yet despite the knowledge,
he chose to recommend for renewal of said contract. Pertinent portion of
Paragraph 20 of his Petition for Review provides:

“But the herein petitioner even went a step further. Upon making
inquiries regarding the property subject of the lease contract,
petitioner found out that another portion of the leased property
just beside the City’s Integrated Bus and Jeepney Terminal was
also leased to a gasoline station for a rental rate of more than
double that that of the City’s rental under its lease agreement”;
and

28. The revelation of petitioner Gaite would prove that undue injury was
incurred in a very substantial amount. If not for the political will exhibited by the
the present administration in terminating the subject of contract of lease, the
Petitioners or their favored group/person could still be benefiting from its
operation;

29. Based on the records, said gasoline station has not paid any amount
as rental to the City of Iligan for using a significant and pricier portion of property
leased by the same being an area along the national highway;

30. After the gasoline station, even before the SP’s resolution renewing
the life of the lease contract between the City and the Salvatorri, several business
establishments had been established and operating inside the above-mentioned
area leased by the City of Iligan, however, had been renting to Salvatorri
Development Corporation;

31. Inside the 20,000 square meters leased by the City Government of
Iligan, who had been occupying the inner portion which is relatively far from the
national highway, are several business establishments which have not been
paying any lease to the City Government of Iligan, however, based on the
Contracts of Lease obtained by the City Government of Iligan, the business
establishments have been paying their lease to SDC and its representative;
 32. Unfortunately, despite the knowledge of the problem relating to the
Lease Contract with SDC, the respondents had not done anything to correct the
anomalous situation wherein the City Government of Iligan has been undoubtedly
prejudiced for a long period of time; Instead, respondents, in conspiracy with
each other, caused the preparation and execution, and the renewal of the subject
Lease Contract which is obviously disadvantageous to the City Government;

33. While the City Government of Iligan have been paying regularly its
lease to the Salvatorri Development Corporation (SDC) the 20,000 square meters
property, when it was only actually using a 10,000 square meters only, more or
less, the SDC and their representatives had been leasing, demanding and
receiving payment from the business establishments located within the premises
rented by the City Government of Iligan;

34. Because of the deliberate omission or even gross negligence of the

respondent public officials, the set-up continued and the anomalous transactions
with SDC also continued. SDC and its representative demanded and collected the
rents from the business establishments in the area rented at the same time
collected rent from the City Government of Iligan, the latest of which was in the
amount of P200,000.00 a month; and
35. As painstakingly explained, there is undue injury on the part of the
Iligan City Government and its constituent when the involved respondents
entered into, amended, renewed and/or extended the agreements to lease the
private property of SDC;

On Petitioner Ruderic C. Marzo's contention,

through his counsel, Atty. Tomas O. Cabili, with all
due respect, the Honorable Investigator did not
commit grave error of law and serious irregularity
prejudicial to the interest of respondent Marzo
when she did not dismiss the complaint outright
pursuant to Sec. 20, RA 6770.

36. The pertinent portion of Section 20 of RA 6770 provides:

"Section 20. Exceptions. - The Office of the Ombudsman MAY not

conduct the necessary investigation of any administrative act or
omission complained of if it believes that: ...(5) The complaint was
filed after one (1) year from the occurrence of the act or omission
complained of"; (emphasis supplied)

37. With all due respect, the contention is without merit. The Honorable
Investigator cannot be compelled to dismiss instant case because of said provision
of law. Stating differently, he cannot be charged of committing grave error of law
and serious irregularity if he chose to resolve instant case. The allegation
therefore against the Honorable Investigator has no legal basis;

38. The wordings of said law has actually given the Investigator the
discretion or option of whether or not to dismiss a case filed (1) year from the
occurrence of the act or omission complained. The word "MAY" in the said
provision has given the investigator the discretion and the legal basis to pursue
and to resolve instant case;

The condonation doctrine enunciated in the case

“Aguinaldo vs. Santos” (G.R. 94115) has been
abandoned by the Supreme Court hence
inapplicable in the instant case

39. On the application of condonation doctrine which some of the

Petitioners would like to be considered in their favour. Unfortunately for the
Petitioners, said doctrine is inapplicable in the instant case albeit it would appear
that there is misconception of the effect of the ruling of the Supreme Court in the
land mark case of Ombudsman Conchita Carpio Morales vs. Court of Appeals and
Jejomar Erwin S. Binay, Jr., (G.R. Nos. 217126-27, November 10, 2015).

40. The Condonation Doctrine in administrative cases, a doctrine already

abandoned by the Supreme Court En Banc in November 2015, has no bearing in
the instant case hence inapplicable to the cause of the Petitioners as ruled in the
afore-cited case, the pertinent portion of which states:

“That being said, this Court simply finds no legal authority to sustain
condonation doctrine in this jurisdiction. As can be seen from this
discourse, it was a doctrine adopted from one class of US rulings way
back in 1959 and thus, out of touch from – and now rendered
obsolete – the current legal regime. In consequence, it is high time
for this Court to abandon the condonation doctrine that originated
from Pascual, and affirmed in the cases following the same, such as
Aguinaldo, Salalima, Mayor Garcia, and Governor Garcia, Jr., which
were all relied upon by the CA” (emphasis supplied);

41. On the other hand, In Ingco v. Sanchez, et al., 129 Phil. 553
(1967)(December 18, 1967) – wherein the Court clarified that the condonation
doctrine does not apply to a criminal case. It was explained that a criminal case is
different from an administrative case in that the former involves the People of the
Philippines as a community, and is a public wrong to the State at large; whereas,
in the latter, only the populace of the constituency he serves is affected. In
addition, the Court noted that it is only the President who may pardon a criminal
offense.
Last but not the least, the Joey Marquez case
where the Supreme Court ruled that, "absence of
public bidding does not necessarily mean that a
contract is disadvantageous to the government
(Joey P. Marquez vs. Sandiganbayan-4th Division,
G.R. Nos. 182020-24, September 2, 2009) is not
applicable in the instant case

42. As earlier discussed, instant case is a violation of a special law on

government procurement, the violation of which is malum prohibitum hence the
advantages, if any, or disadvantages of the contract is of no moment in the
instant case.Hence, whether or not the subject agreements are disadvantageous
to the City of Iligan is actually immaterial to the resolution of the case;

43. Instant case is not about the propriety or the

advantages/disadvantages of leasing the property of the SDC but the refusal of
the respondents to follow what is required by RA 9184, a special law. It is well
settled that in case of "failure to comply with a special law being malum
prohibitum, the defenses of good faith and lack of criminal intent are immaterial".
(Romarico J. Mendoza vs. People of the Philippines, G.R. No. 183891 October 19,
2011);

PRAYER

WHEREFORE PREMISES CONSIDERED, complainant most respectfully prays

that after considering the assertions and/or contentions of the contending
parties, a resolution shall be passed denying the petitions for bereft of merit and
affirming the decisions of the Office of the Ombudsman.

Other relief as are just and equitable under the law are also prayed for.

_____________, Iligan City, Philippines.

Atty. DEXTER REY SUMAOY

Complainant

SUBSCRIBED AND SWORN TO BEFORE ME, this _____ day of Iligan City,
Philippines.

Cc:

Atty. MOISES G. DALISAY, JR.

San Miguel Village, Pala-o, Iligan City
Atty. ROBERTO C. PADILLA
3/F, Padilla Bldg., A. Bonifacio Ave.
Tibanga, Iligan City

Atty. PROVIDENCIO A. ABRAGAN, JR.

Abragan and Abragan Law Office
51C, Aguinaldo St., Iligan City

Atty. TOMAS A. GARCILLANO

Atty. EULALIO G. GAITE
Garcillano Gaite Zalsos-Uychiat Law Offices
2/F Villanea-Zalsos Bldg., Quezon Ave.
Near Traffic Light, Poblacion, Iligan City

EXPLANATION

Due to distance between Iligan City and Cagayan de Oro City, copies of
these Memorandum are filed by way of registered mail.

Atty. Dexter Rey T. Sumaoy