Republic of the Philippines

COURT OF APPEALS
Cagayan de Oro City, Misamis Oriental

WILFREDO DIMAMAY, et al.,

Appelants-Petitioners,

-versus- CA-G.R. CV. NO. 06230-

MIN
CELSO G. REGENCIA
Appellee-Respondent.

X----------------------------------------------------/

COMMENT AND OPPOSITION

TO THE MOTION FOR RECONSIDERATION

RESPONDENT, represented by counsel, unto this Honorable Court of

Appeals most respectfully state that:

I. MANIFESTATION

A motion for reconsideration was received by Atty. John Michael D.

Badelles, former City Legal Officer, on the 8 th day of August 2023, from Atty.
Samson N. Dajao, counsel for Appellants-Petitioner. Atty. Badelles
forwarded said Motion counsel Atty. Dexter Rey T. Sumaoy for appropriate
action.

Considering that respondent was elected as the Representative of

the Lone District of Iligan City and no longer the Mayor, it is our respectful
manifestation that all pleadings, motions, and other legal processes be
addressed to the Local Congressional Office with official address located at
2nd Floor, Gerona Town Center (GTC), Barangay Hinaplanon, Iligan City.

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 II. ARGUMENTS AND DISCUSSIONS

A. CLASS SUIT IS NOT APPLICABLE

With utmost due respect, the Petition is not a class suit. Section 12,
Rule 3 discussed class suit as:

“Class suit. — When the subject matter of the controversy

is one of common or general interest to many persons so
numerous that it is impracticable to join all as parties, a number
of them which the court finds to be sufficiently numerous and
representative as to fully protect the interests of all concerned
may sue or defend for the benefit of all. Any party in interest
shall have the right to intervene to protect his individual
interest.”

Here, petitioners merely alleged the term class suit without proving
the necessary elements thereof or even discuss that they are representing
the rest of the unvaccinated individuals. This is not allowed under the Rules
for he who alleges his case must prove and not the other way around. Due
to its failure to prove commonality of interest, the petition must fall.

In Ibañes v. Roman Catholic Church, the Court ruled that where the
interests of the plaintiffs and the other members of the class they seek to
represent are diametrically opposed, the class suit will not prosper. There is
here an apparent conflict between petitioners’ interests and those of the
persons whom they claim to represent. Since it cannot be said that
petitioners sufficiently represent the interests of the entire class, the instant
case cannot be properly treated as a class suit.
An action does not become a class suit merely because it is
designated as such in the pleadings. Whether the suit is or is not a class suit

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depends upon the attending facts, and the complaint, or other pleading
initiating the class action should allege the existence of the necessary facts,
to wit, the existence of a subject matter of common interest, and the
existence of a class and the number of persons in the alleged class, in order
that the court might be enabled to determine whether the members of the
class are so numerous as to make it impracticable to bring them all before
the court, to contrast the number appearing on the record with the number
in the class and to determine whether claimants on record adequately
represent the class and the subject matter of general or common interest.
(Mathay v. The Consolidated Bank and Trust Company 157 Phil. 551, 563-
564. )

B. THE EVIDENCE IS NOT SUFFICIENT

For the record, counsel for the City Government of Iligan questioned
the presentation of the three (3) witnesses considering that the Petition
failed to attach the Judicial Affidavits. Under the new Rules:

Section 6. Contents. – Every pleading stating a party’s claims or

defenses shall, in addition to those mandated by Section 2, Rule 7, state the
following:

“(b) Summary of the witnesses’ intended testimonies,

provided that the judicial affidavits of said witnesses shall be
attached to the pleading and form an integral part thereof. Only
witnesses whose judicial affidavits are attached to the pleading
shall be presented by the parties during trial. Except if a party
presents meritorious reasons as basis for the admission of
additional witnesses, no other witness or affidavit shall be heard
or admitted by the court; (emphasis ours) “

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 Also assertion that “There were fifteen (15) witnesses, including two
medical doctors and one College Professor Holder of a PhD degree in
genetics and virology, waiting in the queue standing by willing, ready and
motivated to their testimonies“ is not material. We cannot allow the
presentation of these witnesses because they did not attach Judicial
Affidavits in the Petition.

The dismissal of the appeal due to lack of evidence is proper. As

pointed out in our Position Paper:

“Petitioner applicants’ transparent attempts to solicit

witnesses even during the hearing itself fails. No witnesses
came forward alleging direct injury caused by the violation of
their rights: a) no commuter or member of the riding public
testifiedbeing refused entry into a jeepney or PUV; b) no public
vendor nor member of the market-going public testified being
barred from public markets, as no such policy exists in the
markets to date. Petitioners themselves have not even taken the
stand to narrate and prove their injury and legal standing. Their
claim of a “class suit” is inappropriate as it is clearly done as a
guise to continue the solicitation of non-existent witnesses. “
(quoted from the Position Paper)

“ The Petition similarly claims that “contractual and job

order employees at the City Hall of LGU of Iligan City (sic) are
told that their employment with the City would not be renewed
unless and until they can present a vaccine card at the time of
the processing of the renewal of their employment contracts
xxx” Again, petitioner applicants were not able to present a
single contractual or job order employee of the City to testify to

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this alleged mishap. They attempted to present their first
witness, a certain Ricarte, who relayed the above claim merely
because his offspring allegedly worked for the City Government.
This type of anecdotal evidence is hearsay and should not be
allowed to waste the Court’s time” (quoted from the Position
Paper)

“The Petition next states that “Unvaccinated persons,

homeowners, store owners and operators of businesses in the
City are refused processing and issuance of new Business
Permits, Building Permits and all the other important business
documents that the City issues unless and until the applicant
can present a vaccine card.”Not one of the petitioners nor any
of the witnesses presented are business owners testifying to the
denial or refusal to process their business permit, upon
transacting at the City Hall. Needless to say, absent any
testimony to this effect, this remains mere hearsay and should
not be allowed to waste the Court’s time.” (quoted from the
Position Paper)

Despite the objections by lawyers from the LGU, the

witnesses were presented but still not enough to prove that the
Executive Order violated the Constitutional rights of the
residents of Iligan City, hence the dismissal by the Regional Trial
Court.

When the Petitioner’s thru counsel stated that:

“ The court a quo allowed herein petitioners to present

only three witnesses. The testimony of the third witness,
however, on motion of the counsel for the LGU of Iligan City,

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 and despite appellants opposition thereto, was ordered to be
stipulated, which effectively prevented the witness from
elucidating on it and giving more factual details in support of
the petition.”

Our comment is that, stipulation by the counsel for the LGU was
allowed by the Court because counsel for the Petitioners did not object
thereto. The trial proceeded in accordance with the rules. Besides, if the
petitioners really objected in the stipulation, they should have stated it in
their Position Paper and attach the Transcript of Stenographic Notes (TSN
for brevity) prepared by the Court. Absent any statement in the Position
Paper including the TSN, the pronouncement is not true.

C. THE MOTION FOR RECONSIDERATION IS PRO FORMA

Under Section 2, Rule 37, the grounds for motion for reconsideration
are as follows:

(a) Fraud, accident, mistake or excusable negligence which

ordinary prudence could not have guarded against and by
reason of which such aggrieved party has probably been
impaired in his rights;

or (b) Newly discovered evidence, which he could not, with

reasonable diligence, have discovered and produced at the trial,
and which if presented would probably alter the result.

A motion for reconsideration shall point out specifically

the findings or conclusions of the judgment or final order which
are not supported by the evidence or which are contrary to law,
making express reference to the testimonial or documentary
evidence or to the provisions of law alleged to be contrary to

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 such findings or conclusions. A pro forma motion for new trial
or reconsideration shall not toll the reglementary period of
appeal. (2a) (Emphasis ours)

Again, Petitioners failed to comply with the requirement of the Rules.

Generally, the application of the rules must be upheld, and the suspension
or even mere relaxation of its application, is the exception. For the
exception to come into play, first and foremost should be the party
litigant's plausible explanation for non-compliance with the rules he
proposes to be exempted from. Absent any acceptable explanation, the
party's plain violation of the rules will not be countenanced.

The news clipping marked as Exhibit C will not qualify as newly

discovered evidence as to warrant the filing of a Motion for
Reconsideration. Perusal of said clipping alleged that the “’ SC Junk
Petitions Questioning COVID 19 Issuances, an article by Benjamin Pulta.
Said clipping is a printed copy only, taken from unknown origin, therefore
unreliable and is not equivalent to proof.

This Court previously explained: The Court is not impervious to the

frustration that litigants and lawyers alike would at times encounter in
procedural bureaucracy but imperative justice requires correct observance
of indispensable technicalities precisely designed to ensure its proper
dispensation. It has long been recognized that strict compliance with the
Rules of Court is indispensable for the prevention of needless delays and
for the orderly and expeditious dispatch of judicial business. Procedural
rules are not to be disdained as mere technicalities that may be ignored at
will to suit the convenience of a party. Adjective law is important in
ensuring the effective enforcement of substantive rights through the
orderly and speedy administration of justice. These rules are not intended

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to hamper litigants or complicate litigation but, indeed to provide for a
system under which a suitor may be heard in the correct form and manner
and at the prescribed time in a peaceful confrontation before a judge
whose authority they acknowledge. It cannot be overemphasized that
procedural rules have their own wholesome rationale in the orderly
administration of justice. Justice has to be administered according to the
Rules in order to obviate arbitrariness, caprice, or whimsicality. (Tible and
Tible Company, et al vs Royal Savings and Loan Association, G.R. No.
155806, April 8, 2008)

Rules of procedure are intended to ensure the orderly administration

of justice and the protection of substantive rights in judicial and
extrajudicial proceedings. It is a mistake to propose that substantive law
and adjective law are contradictory to each other or, as often suggested,
that enforcement of procedural rules should never be permitted if it will
result in prejudice to the substantive rights of the litigants. This is not
exactly true; the concept is much misunderstood. As a matter of fact, the
policy of the courts is to give both kinds of law, as complementing each
other, in the just and speedy resolution of the dispute between the parties.
Observance of both substantive rights is equally guaranteed by due
process, whatever the source of such rights, be it the Constitution itself or
only a statute or a rule of court. They are required to be followed except
only when for the most persuasive of reasons them may be relaxed to
relieve a litigant of an injustice not commensurate with the degree of his
thoughtlessness in not complying with the procedure prescribed. While it is
true that a litigation is not a game of technicalities, this does not mean that
the Rules of Court may be ignored at will and at random to the prejudice of
the orderly presentation and assessment of the issues and their just

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resolution. Justice eschews anarchy. (Republic v. Hernandez, G.R. No.
117209, February 9, 1996, 253 SCRA 509, 529-531.)

In the RTC, Petitioners by Counsel deliberately failed to include or

attach the Judicial Affidavits of the Witness, as well as the Object and all
Documentary Evidence. Now in this Motion for Reconsideration, no fraud,
accident, mistake, excusable negligence, or newly discovered evidence
exist.Denial of the Motion is therefore proper.

D. EXECUTIVE ORDER NO. 288 AND 291 IS CONSTITUTIONAL

The alleged “right to make choices, right to religious worship, right to

travel and to due process” have in no way been prejudiced by respondents,
as in fact Executive Order Nos. 288 and 291 cover a different subject
matter.The EO delves only into limited movement due to the recent IATF
quarantine classification handed down by the national government.
Movement is allowed provided that the proper Minimum Public Health
Standards are followed. Neither does it restrict movement on the one and
only requirement of avaccination card. Limitation in this context does not
mean refusal, as alleged by the Petitioners.

It bears stressing that RA 11525 is an offshoot of Proclamation No.

929 declaring a state of calamity throughout the country due to COVID-19,
which was extended by Proclamation No. 1021. Various measures were
employed to curb the health crisis. The vaccines developed and their roll-
out is envisioned to complement these measures. In simple terms, the main
objective of vaccination is the protection of public health. In like manner,
the only objective of the LGU is to align itself with the health policy
directives of the national government, as it should.

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 Petitioner applicants have not shown with a whit of evidence that
respondents herein acted with willful misconduct or gross negligence. They
are in fact, to be greatly lauded for doing their bounden duty and
complying with their mandates despite the public backlash. Given the
foregoing, it is clear that the EO does not contravene RA 11525, but was
rather issued as compliance with the latter.Therefore, based on the
foregoing allegations, there exists no immediate or threatened injury to
Petitioners.

A part of the Decision issued by the Honorable Court of Appeals is

stated, and we quote:

“All prayers before the Court, however impassioned or believed,

must still be held up by the fibers of evidence, and it is the court’s
duty to make the earliest determination if the evidence are mere
gossamer threads. “
In the same Decision, the Honorable Court of Appeals correctly stated
that the dismissal of the case is not based on Lack of Jurisdiction but on
another grounds, particularly for lack of evidence because the witnesses
failed to substantiate the allegation.

III. PRAYER

WHEREFORE PREMISES SERIOUSLY CONSIDERED, appellee-

respondent represented by undersigned counsel respectfully prays to the
Honorable Court of Appeals to dismiss the appeal because it is not
meritorious.

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 Other reliefs just and equitable under the circumstances are likewise
prayed for.
Done this ___ day of August 2023, at City of Iligan, for Cagayan de Oro
City, Philippines.

DEXTER REY T. SUMAOY

Counsel
Rovira Law Office, Brgy. Poblacion, Iligan City
IBP Lifetime Membership No. 012465
Roll No. 62036-April 25, 2013
MCLE Compliance No. VII-0002051

COPY FURNISHED:

SAMSON N. DAJAO
Counsel for the Appellants-Petitioners
2ND Floor, Gonzales-Gimeno Building,
Roxas Avenue, Iligan City

EXPLANATION OF SERVICE BY MAIL

Copies of the Comment and Opposition were served thru registered

mail due to lack of manpower and geographical distance to effect personal
service.

DEXTER REY T. SUMAOY

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