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[G.R. No. 147465.April 10, 2002] MMDA vs. JANCOM ENV'L. CORP., et al.

THIRD DIVISION Gentlemen: Quoted hereunder, for your information, is a resolution of this Court dated APR 10 2002. G.R. No. 147465(Metropolitan Manila Development Authority, petitioner, vs. Jancom Environmental Corporation and Jancom International Development Projects Pty. Limited of Australia, respondents.) Before us is a motion for reconsideration of our decision dated January 30, 2002 affirming the judgment of the Court of Appeals, which in turn affirmed that of the regional trial court, declaring that there is a valid and perfected waste management contract between the Republic of the Philippines and JANCOM Environmental Corporation, and dismissing the petition filed by petitioner Metropolitan Manila Development Authority for lack of merit.Petitioner has likewise filed a motion that the case at bar be heard and resolved by the Court en banc. In its motion for reconsideration, petitioner reiterates its arguments that (1) resort to a petition forcertiorari was proper; (2) that the waste management contract never got through the negotiation stage; (3) that the signature of the President is necessary for the perfection of the contract in question; and (4) that the contract could be unilaterally cancelled by the Government since incineration is prohibited by the Clean Air Act. A cursory look at petitioner's arguments readily discloses that the same are a mere rehash of the issues and arguments raised in the original petition.The first procedural issue raised, which parenthetically, was resolved by us in our January 30, 2002 decision, is whether or not it was proper for petitioner to resort to a petition for certiorari, instead of appealing the decision of the trial court. In justifying its resort to certiorari, petitioner claims that a garbage crisis was imminent due to the trial court's decision to prohibit and enjoin MMDA from conducting a bidding for the establishment and operation of a new sanitary landfill.Petitioner contends that this prohibition - and the specter of garbage lying open in the streets - impelled it to file a petition for certiorari rather than a regular appeal.As we stated in our decision, "[t]he existence and availability of the right of appeal proscribes a resort to certiorari, because one of the requirements for availment of the latter remedy is precisely that 'there should be no appeal' (Mercado vs. CA, 162 SCRA 75 [1988])." The special civil action for certiorari is available only when there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law (Sec. 1, Rule 65, id.).Well-settled is the rule that the special civil action for certiorari may not be invoked as a substitute for the remedy of appeal (BF Corporation vs. Court of Appeals, 288 SCRA 267 [1998]). Petitioner claims, however, that while appeal was available, the same was an inadequate remedy under the circumstances, stating that "the availability of appeal is not sufficient to preclude a petition for certiorari where appeal is not an adequate, equally beneficial, speedy and efficient remedy.For it is the inadequacy and not the mere absence of other legal remedies which determines the propriety ofcertiorari."This argument was previously confuted by the Court of Appeals in the following disquisition, which we quote with approval: [T]he RTC decision is not immediately executory.Only judgments in actions for injunction, receivership, accounting and support and such other judgments as are now or may hereafter be declared to be immediately executory shall be enforced after their rendition and shall not be stayed by an appeal therefrom, unless otherwise ordered by the trial court (Sec. 4, Rule 39, id.) Since the RTC decision is not immediately executory, appeal would have stayed its execution.Consequently, the adverse effects of said decision will not visit upon petitioners during the appeal.In other words, appeal is a plain, speedy and adequate remedy in the ordinary course of law.

But no appeal was taken within the reglementary period, the RTC decision had become final and executory. (CA Decision, p. 9.) Thus, it cannot be gainsaid that petitioner's failure to appeal the decision of the trial court is a fatal defect which, standing by itself, already fully justifies the dismissal of its petition. Petitioner also moves to have the instant case referred to the Court en banc on the ground that novel questions of law have been raised which merit review by the Court en banc.The motion is not meritorious. Firstly, Circular No. 2-89 governing referral of cases to the Court en banc states that "[t]he Court en banc is not an Appellate Court to which decisions or resolutions of a Division may be appealed."A decision of a Division of the Court is a decision of the Supreme Court.That much is clear.Secondly, the question as to whether or not a perfected contract exists between the parties can hardly be characterized as novel.Thirdly, when this case was passed on to Mr. Justice Antonio T. Carpio upon the retirement of Mme. Justice Minerva Gonzaga-Reyes to whom the case had been initially assigned, the Division thought it wise to refer the case en consulta to the Court en banc, suggesting or inquiring if the Court en banc should take over and whether the case should be re-raffled courtwide due to the inhibition of Justice Carpio.The Court en banc, however, declined to take over the case and returned it to the Third Division with instructions that it be reraffled among the other members of the Division.Fourthly, Circular 2-89 further pertinently provides that "[n]o motion for reconsideration of the action of the Court en banc declining to take cognizance of a referral by a Division, shall be entertained."Verily, to refer the instant case to the Court en banc anew would be equivalent to allowing a motion for reconsideration of the previous denial of the referral.This notwithstanding, the Third Division acting on petitioner's motion for referral of the motion for reconsideration to the Court en banc, once again consulted the Court en banc, inquiring if the banc desired to take over the resolution of petitioner's motion for reconsideration.The Court en banc declined, and again instructed the Third Division to accordingly act on the motion for reconsideration.Withal, the Court en banc has denied petitioner's motion that its motion for reconsideration be resolved by the Court en banc. Incidentally, it ahs been claimed that the Third Division violated SC Administrative Circular No. 1294-A when it did not re-raffle the case to the two other divisions of the Court, given the circumstance that Mr. Justice Carpio, a member of the Division, was formerly counsel of Vivendi, JANCOM's partner, and was Chief Presidential Legal counsel when the contract was finalized. The claim is without basis.Circular 12-94-A provides: 2.Whenever a Member of a Division was counsel or member of a law firmwhich was counsel in a case before the Division... or a former official of a government agency or private entity which is a party to a case before the Division, said member shall inhibit himself from the case, and the same shall be raffled among members of the two other Divisions of the Court. A painstaking scrutiny of the record would show that Mr. Justice Carpio and his former law firm have never been counsel for any party in the case, whether in the Third Division, the Court of Appeals, or the regional trial court where the case originated.Moreover, Mr. Justice Carpio resigned as Chief Presidential Legal counsel on February 15, 1996, while the bidding for the waste management project was held almost a year later, on February 12, 1997.The contract itself was signed only on December 19, 1997.Clearly, Circular 1294-A finds no application in the case at bar. Having disposed of the procedural issues, we again consider the substantive issues raised by petitioner, not only to put petitioner's mind to rest, but to expose the speciousness of its arguments. Petitioner claims that the waste management contract never got through the negotiation stage since the notice sent by then MMDA Chairman Prospero Oreta informing JANCOM that it was the winning bidder specifically provided that the same was "subject to negotiation and mutual approval of the terms and conditions of the contract of award."The argument is misleading since it deceivingly overlooks the fact that after said letter was sent, a contract was prepared and signed by JANCOM and the Philippine Government.The signing and execution of the contract by the parties clearly show that, as between the

parties, there was a concurrence of offer and acceptance with respect to the material details of the contract, thereby giving rise to the perfection of the contract.The execution and signing of the contract are not disputed by the parties. Next, petitioner reiterates its claim that the signature of the President is necessary for the validity of the contract.It points out that Memorandum Order No. 202 (Memorandum Order Creating an Executive Committee to Oversee the BOT Implementation of Solid Waste Management Projects for Waste Disposal Sites in Carmona and San Mateo) only gives the Executive Committee recommendatory authority, not the authority to approve or disapprove a waste management contract.Petitioner argues that the Secretary of Environment and Natural Resources signed the contract in his capacity as member of the Executive Committee and that, therefore, the same is not valid since the Executive Committee has no power to approve or disapprove the contract.Again, the argument is specious as it glosses over the fact - stated in the contract itself - that the Secretary of Environment and Natural Resources signed, not as a member of the Executive Committee, but in representation of the Presidential Task Force on Solid Waste of which he was the Chairman (Contract, p. 1).Nor can it be gainsaid that the Department of Environment and Natural Resources, of which the Secretary is the head, is the primary government agency responsible for the conservation, management, development, and proper use of the country's environment and natural resources (Whereas clause, Memorandum Circular No 88 - Circular Reconstituting the Presidential Task force on Waste Management). As to the contention that the contract is worth billions of pesos, thereby requiring Presidential approval for validity, this is a mere rehash of the issues already answered in our January 30, 2002 decision.Again, we quote the Court of Appeals: As regards the President's approval of infrastructure projects required under Section 59 of Executive Order No. 292, said section does not apply to the BOT contract in question.Sec. 59 should be correlated with Sec. 58 of Exec. Order No. 292.Said sections read: SECTION 58.Ceiling for Infrastructure Contracts.-The following shall be the ceilings for all civil works, construction and other contracts for infrastructure projects, including supply contracts for said projects, awarded through public bidding or through negotiation, which may be approved by the Secretaries of Public Works and Highways, Transportation and Communications, Local Government with respect to Rural road improvement Project and governing boards of government-owned or controlled corporations: xxx xxx xxx

Save as provided for above, the approval ceilings assigned to the departments/agencies involved in national infrastructure and construction projects shall remain at the levels provided in existing laws, rules and regulations. Contrary to petitioner's claim that all infrastructure contracts require the President's approval (Petition, p. 16), Sec. 59 provides that such approval is required only in infrastructure contracts involving amounts exceeding the ceilings set in Sec. 58.Significantly, the infrastructure contracts treated in Sec. 58 pertain only to those which may be approved by the Secretaries of Public Works and Highways, Transportation and communications, Local Government (with respect to Rural Road Improvement Project) and the governing boards of certain government-owned or controlled corporations.Consequently, the BOT contract in question, which was approved by the DENR Secretary and the EXCOM Chairman and Co-Chairman, is not covered by Exec. Order No. 292. (Rollo, p. 51-52.) Petitioner also claims that even if the Secretary of Environment and Natural Resources had the authority to enter into the contract, the approval of the National Economic and Development Authority must first be secured for the contract to be valid, citing the second paragraph of Section 4 of Republic Act No. 6957 (the Build-Operate-Transfer Law), as amended by Republic Act No. 7718.Said Section provides:

The list of all such national projects must be part of the development programs of the agencies concerned.The list of projects costing up to Three hundred million pesos (P300,000,000) shall be submitted to the ICC of the NEDA for its approval and to the NEDA Board for projects costing more than Three hundred million pesos (P300,000,000).The list of projects submitted to the ICC of the NEDA Board shall be acted upon within thirty (30) working days. x x x

Petitioner's argument is not in point.A perusal of Republic Act No. 6957, as amended, readily shows that the required approval of NEDA refers to the list of priority projects which must be included in the development program of the agencies concerned.In other words, under Section 4, what NEDA must approve is the proposal by an agency that a certain project be considered for financing, construction, operation, or maintenance by the private sector, not the contract itself.This conclusion is bolstered by Section 5 of the same law which provides that after NEDA approval, the head of the agency concerned shall then publish a notice inviting prospective bidders to bid for the project so approved. Lastly, petitioner argues that the incineration technology provided in the contract is prohibited by law, citing the Clean Air Act in support thereof.This matter was hardly treated by the two courts below, rendering it almost a non-issue.The Court of Appeals, in its 20-page decision, devoted two short paragraphs comprising all of three sentences to this matter (Rollo, p. 54).The regional trial court, for its part, said that the issues "which should be addressed are the following: (1) Is there a perfected contract between the parties? and (2) Does certiorari and/or prohibition lie in the case at bar?" (Rollo, p. 157).We need but repeat now that, as pointed out by the appellate court, Section 20, which provides: SECTION 20.Ban on Incineration.- Incinertion, hereby defined aas the burning of municipal, bio-chemical and hazardous wastes, which process emits poisonous and toxic fumes, is hereby prohibited: xxx." does not absolutely prohibit incineration as a mode of waste disposal; rather, only those burning processes which emit poisonous and toxic fumes are banned. The rule that a statute should be given effect as a whole requires that the statute be so construed as to make no part or provision thereof a surplusage.Each and every part of the statute should be given its due effect and meaning in relationto the rest.It is well settled that, whenever possible, a legal provision must not beso construed as to be a useless surplusage and, accordingly, meaningless in the sense of adding nothing to the law or having no effect whatsoever therein(Uytengsu vs. Republic, 95 Phil 890 [1954]).To consider Section 20 of the Clean Air Act as prohibiting all forms of incineration would render the phrase "which process emits poisonous and toxic fumes" a useless surplusage, which could not have been the intention of legislature, seeing that our learned legislators even took pains to define, in Section 5, Article II of the Clean Air Act what poisonous andtoxic fumes are, viz: Section 5. Definitions.- As used in this Act: t) "Poisonous and toxic fumes" means any emissions and fumes which are beyond internationally-accepted standards, including but not limited to World Health Organization (WHO) guideline values; It may not, thus, be argued that the Clean Air Act prohibits all forms of incineration as to make the contract in question violative of the Clean Air Act.This is not to say, of course, that the contract involved does not in fact run afoul with the Clean Air Act.That issue may still be raised by the proper party in a proper action. Prescinding from the issues at hand, several motions for leave to intervene, with the corresponding petitions-in-intervention, were filed in this case.These motions for intervention were not granted by the Court.Moreover, the issues raised by these would-be petitions-in-intervention - such as the claim that the contract was not a publicly bidded contract but a negotiated one, that the signatories therein committed violations of the Anti-Graft and Corrupt Practices act, that the decision contravenes public policy to promote the constitutional rights to health and healthful ecology - were not raised during the trial.The rule is well-

settled that points of law, theories, issues and arguments not adequately brought to the attention of the trial court need not be, and ordinarily will not be considered by a reviewing court as they cannot be raised for the first time on appeal because this would be offensive to the basic rules of fair play, justice, and due process (PAL vs. NLRC, 259 SCRA 459 [1996]). We, therefore, hold that petitioner has failed to bring out any matter which could justify a reversal.It bears emphasizing, however, that the Court, in deciding the instant case, is not making any pronouncement as to whether or not the contract in question is advantageous or disadvantageous to the government.The only question before the Court is whether or not there is a valid and perfected contract between the parties.As to the necessity, expediency, and wisdom of the contract, these are outside the realm of judicial adjudication.These considerations are primarily and exclusively a matter for the President to decide.While the Court recognizes that the garbage problem is a matter of grave public concern, it can only declare that the contract in question is a valid and perfected one between the parties, but the same is still ineffective or unimplementable until and unless it is approved by the President, the contract itself providing that such approval by the President is necessary for its effectivity. ACCORDINGLY, petitioner's Motion for Reconsideration is hereby DENIED and this denial is FINAL. SO ORDERED.(Carpio, J. - No part.)