Republic of the Philippines

REGIONAL TRIAL COURT OF BASILAN

9th Judicial Region
Branch ____
Isabela City, Basilan
LINO A. VENTULERO,
Petitioner,
-versus-

Special Civil Action No. 814-227

FOR: Mandamus with Damages

DR. DOMINGO REMUS A. DAYRIT and

EDUARD D. SUMERGIDO, in their
Capacities as Chief of the Hospital II and
Accountant II, respectively of Basilan
General Hospital, Isabela City, Basilan,
Respondents.
x----------------------------------------------x

ANSWER
COME NOW, herein respondents, DR. DOMINGO REMUS A.
DAYRIT and EDUARD D. SUMERGIDO, thru counsel and unto this
Honorable Court in response to the petition for mandamus with
damages in the above-captioned case most respectfully avers:
PREFATORY STATEMENT
This is a special civil action of mandamus with damages filed by
petitioner LINO A. VENTULERO, Administrative Officer III of Basilan
General Hospital against respondents, Dr. Domingo Remus A. Dayrit
and Eduard D. Sumergido in their capacities as Chief of Hospital II and
Accountant II respectively of Basilan General Hospital alleging in his
first cause of action that respondents continuously and unlawfully
withheld payment of petitioners back salaries and other monetary
benefits for the period January 4, 2004 to September 5, 2004
amounting to Two Hundred Eighteen Thousand Three Hundred Ninety
Two Pesos and 19/100 (P 218, 392.19) inclusive of Hazard Pay for June
2003 to December 2003 despite the OMNIBUS ORDER dated December
19, 2003 from the Civil Service Commission Regional Office IX and an
authority to pay from the Department of Budget and Management and
a directive from the Undersecretary of the Department of Health, Hon.

Milagros L. Fernandez wherein the respondents on the other hand,

insisted and rationalized that there is an appeal to the Civil Service
Commission Collegial body in Manila which remains to be resolved.
Petitioners second cause of action pertains to the claim for monetary
damages as a result of respondents alleged unlawful acts of refusing to
allow him to report for work and delaying payment of monetary benefit
despite the directive of proper authorities.
THE ANTECEDENT FACTS
In an ORDER dated October 1, 2004, Director Rogelio C. Limare
of the Civil Service Commission Regional Office IX briefly outline the
events that transpired in the instant case, to wit:
19 February 2003

Ventulero requested the opinion of this

Office

relative to the validity of his

detail at DOH-IX;
27 March 2003

This Office requested the comment of

Director

Brenda

B.A.

Lopez,

DOH-IX,

anent Ventuleros query;

06 June 2003

Director Lopez submitted the comment of

Ventuleros detail;

06 June 2003

Director Lopez issued an order dropping

Ventulero from the rolls of service due to
excessive absences;

18 July 2003

Ventulero filed a complaint relative to his

dropping from the rolls including his
detail at DOH-IX, which is treated it as an
appeal;

28 July 2003

This Office requested Director Lopez to

submit

her

comment

on

Ventuleros

dropping;
18 August 2003

Director Lopez submitted her comment

on Ventuleros dropping;

23 October 2003

Ventulero, together with Mr. Wilfredo S.

Paoatang and Alicia R. Santiago, DOH-IX
Administrative
Resource

Officer

Management

and

Human

Officer

III,

respectively, were called to a conference

in this Office;
19 December 2003 -

This Office rendered a decision embodied

in

an

Omnibus

Ventuleros

Order,

dropping

declaring

from

the

rolls

invalid and at the same time nullifying

the latters detail and thereby ordered
Ventuleros reinstatement to the BGH;
09 February 2004

DOH-IX

filed

motion

for

reconsideration;
15 June 2004

This Office rendered a decision denying

the motion for reconsideration;

22 June 2004

This Office furnished with a copy of a

letter of Dr. Domingo Remus A. Dayrit
BGH

Chief of

Hospital

addressed to

Ventuleros directing the latter to refrain

from reporting to duty in the absence of
an order from DOH-IX;
28 July 2004

This Office wrote Dr. Dayrit informing the

latter

that

Decision

the

Omnibus

rendered

constitute

by

sufficient

Order
this

and
Office

directive

for

Ventulero to be reinstated;
31 August 2004

Director

Lopez

requested

clarification

from this Office whether or not Ventulero

is entitled to back wages in as much as
the same is not stated in the decisions;
07 September 2004 -

This

Office

rendered

requested.
ARGUMENTS/DISCUSSION
Party petitioner, should have a clear
legal right to the thing demanded in
mandamus and it must be the
imperative duty of respondents to
perform the act required;
mandamus will not lie in doubtful ones.

opinion

as

Petitioners case is that of mandamus, the first issue or cause of

action is to compel respondents to release the back salaries and other
monetary benefits of petitioner for a given period of time and that is
from January 4 to September 5, 2004 inclusive of Hazard pay for June
to December 2003 as directed by the proper authorities. Under Rule
65, Section 3 of the Rules of Court, mandamus lies under any of the
following cases: 1) against any tribunal which unlawfully neglect the
performance of an act which the law specifically enjoins as a duty; 2)
in case any corporation, board or person unlawfully neglects the
performance of an act which the law enjoins as a duty resulting from
an office, trust or station; and 3) in case any tribunal, corporation,
board or person unlawfully excludes another from the use and
enjoyment of a right or office to which such other is legally entitled;
and there is no other plain, speedy and adequate remedy in the
ordinary course of law. As a rule, mandamus lies against an officer who
unlawfully neglects the performance of an act, which the law
specifically enjoins as a duty resulting from an office, trust or station.
The duties to be enforced by such extraordinary legal remedy must be
such as are clearly and peremptorily enjoined by law or by reason of
official station. If for any reason, the duty to be performed is doubtful,
the obligation is not regarded, as imperative and the applicant will be
left to his other remedies. It is equally necessary that the respondents
have the power to perform the act concerning which the application for
mandamus is made. If the respondents have not performed the act,
mandamus will not issue, however, clear his duty to perform may be.
Stated, otherwise, the writ never issued in doubtful cases. It neither
confers powers nor imposes duties. It is simply a command to exercise
a power already possessed and to perform a duty already imposed
(Alzate vs. Aldana, 8 SCRA 219, Tangonan vs. Pano, 137 SCRA 245).
In the case at bar, the petitioner has miserably failed to show a
clear legal right to compel respondents to released his back salary and
other monetary benefits covering the period of January 4, 2004 up to
September 5, 2004 inclusive of Hazard pay from June 2003 to
December 2003. Records, will bear out that petitioner was able to
received payment of his back salaries and other monetary benefits for
the period June 6, 2003 to December 31, 2003 amounting to One
Hundred

Forty

Thousand

Twenty

Three

Pesos

and

15/100

(P 142, 023.15) as evidenced by the letter dated December 28, 2004

prepared by respondent, Dr. Domingo Remus A. Dayrit which was
addressed to Undersecretary Milagros Fernandez of the Department of
Health (A photocopy of which is hereto attached and its supporting
attachment consisting of the Disbursement Voucher, a photocopy of
Check No. 051045 dated December 7, 2004 and Allotment and
Obligation Slip (ALOBS) No. 04-11-452 dated November 30, 2004 are
correspondingly marked as Annex 1, 1-A, 1-B, 1-C, 1-D respectively).
However, petitioner wanted the best of both worlds. He now insisted
that he be paid again for his back salary and other monetary benefits
for the period January 4, 2004 to September 5, 2004. It cannot be
denied and supported by hard documentary evidence that petitioner
Ventulero filed his Certificate of Candidacy on January 4, 2004 for the
position of Vice Mayor in the Municipality of Lamitan, Province of
Basilan for the May 10, 2004 election but unfortunately he lost. His
Certificate of Candidacy and Comelec Certification dated July 23, 2004
are hereto attached and marked as Annex 2 and 3 respectively. From
January 4, 2004 until Election Day of May 10, 2004, petitioner is on
AWOL (absence without leave) and vigorously campaigned for his
candidacy and for this unholy and unlawful action he wanted to compel
respondents to pay his back salary and other monetary benefits for
being on a campaign trail during the aforesaid period. From May 10,
2004

until

September

5,

2004

he

continuously

remained

on

AWOL(absence without leave) hence an OMNIBUS ORDER dated June 6,

2003 was issued dropping him from the rolls as directed by Director
Brenda Lopez of the Department of Health Regional Office IX (A copy of
aforesaid document is hereto attached and marked as Annex 4) and he
voluntarily reported back for work only in September 6, 2004. Clearly
petitioner have not shown any clear legal right to recovered any back
salaries and other monetary benefits during the time he was
campaigning for his candidacy and remains on AWOL (absence without
leave) for the duration of the period starting from January 4, 2004 until
September 5, 2004 wherein he was eventually dropped from his rolls.
Moreover, it bears to emphasized that the OMNIBUS ORDER issued by
the Civil Service Commission Regional Office IX dated December 19,
2004 resolving petitioners assailing of his detail service and his illegal
dismissal complaint was silent with respect to the payment of his back
salary and other monetary benefits and made mentioned only of his

reinstatement with a caveat stating that this is without prejudice to

commencement

of

proper

disciplinary

proceeding

against

him.

Furthermore a gray area arose with respect to the payment of hazard

pay to petitioner due to contradicting and conflicting opinion rendered
officially by Director Gerardo Concepcion of the Department of Budget
and Management wherein respondent Dr. Domingo Remus A. Dayrit
queried the concern official with respect to the propriety of payment of
hazard pay to petitioner wherein on November 9, 2004, it opined, to
wit:
xxx

xxx

xxx

With respect to issue No. 2 above, may we refer you to the

Revised Implementing Rules and Regulations of RA No.
7305 (Magna Carta of Public Health Workers) which
provides that all public health workers covered under said
RA are eligible to receive hazard pay when the nature of
their work exposes them to high/low risk hazards for at
least 50% of their working hours as determined and
approved by the Secretary of Health or his authorized
representatives. Since he was dropped from the rolls
of service, he was not exposed to risk hazards.
Thus, he is not entitled to receive such pay.
(Emphasis supplied)
(A photocopy of aforesaid document is hereto attached and marked as
Annex 5)
However, petitioner Ventulero, not to be outwitted sought a
second opinion from the same official who ruled otherwise in an
opinion rendered dated December 8, 2004 (A photocopy of aforesaid
document is hereto attached and marked as Annex 6) respondent Dr.
Domingo Remus A. Dayrit, puzzled and doubtful of the issues involved
re:

payment

of

hazard

pay

to

petitioner

wrote

an

official

communication letter dated January 10, 2005 addressed to the same

official of the Department of Budget and Management to clarify the
conflicting opinion concerning the same issue (A photocopy of
aforesaid document is hereto attached and marked as Annex 7). In
short, the payments of hazard pay to petitioner was not clear and well
define yet and remains doubtful. With respect to petitioners claim of
back salaries and other monetary benefit for the period January 4,
2004 to September 5, 2004, these matter was likewise doubtful
because of the discussion mentioned above as well as the pending
appeal of respondents to the collegial body of the Civil Service
Commission in Manila questioning the reinstatement of petitioner from

his work as directed by the regional official of the Civil Service

Commission.
It appears that respondent Dr. Domingo Remus A. Dayrit was
perfectly justified in withholding the payment of back salaries and
other monetary benefits to petitioner inclusive of hazard pay for the
covered period. The fact of refusal was sanctioned by law, and existing
pertinent jurisprudence on the matter as exemplified by a phletora of
cases wherein the High Tribunal consistently held on several occasion
the denial of issuance of writ of mandamus because the petitioner,
failed to established his legal right to the thing demanded in a clear,
well defined and certain manner.
While

admittedly

the

writ

of

mandamus

lie

to

compel

appropriation for salary differential (Rivera vs. Velasco, 1 SCRA 531;

Agudo, Jr. vs. Villanueva; 12 SCRA 5; Canonigo vs. Ramiro, 31 SCRA
278) and salary payment, such payment being ministerial duty
enjoined by law (Pilar vs. Sangguniang Bayan of Dasol, Pangasinan,
128 SCRA 173). However, mandamus to compel payment of back
salary does not lie unless right of petitioner to back pay is well defined,
clear and certain. (Sales vs. Mathay, Sr. 129 SCRA 180) The legal right
of the plaintiff to the thing demanded must be well defined, clear and
certain. (Ramos vs. Diaz, 21 SCRA 1243) Mandamus applies as a
remedy only where petitioners right is founded clearly in law and not
when it is doubtful. (J.G. Summit Holdings, Inc. vs. Court of Appeals,
345 SCRA 143) Mandamus never issues in doubtful cases, and while it
may not be necessary that the duty be absolutely expressed, it must
nevertheless be clear. (Pefranco vs. Moral, 322 SCRA 439).
It bears stressing that respondent Dr. Domingo Remus A. Dayrit
as head of the agency (Basilan General Hospital) was likewise task by
law to protect the public funds appropriated to his office by seeing to it
that its funds are properly disbursed and spend in accordance with the
existing rules and regulations of the agency. By holding in abeyance
the release of money claims of petitioner, respondent Dr. Domingo
Remus A. Dayrit was not acting in clear violation of any existing law
nor he was negligence in the performance of his assign duty as a
public officer. His actuation and disposition in the instant case is in

accordance with law, rules and regulations of the agency and the
disposition he rendered in the case at bar was based purely on honest
judgment in his capacity as head of the agency, hence mandamus will
not lie in the absence of a showing that respondents arbitrarily,
capriciously and whimsically disposed the case of petitioner in the
instant case. Petitioner Ventulero having failed miserably to establish
his cause of action against respondent, the special civil action of
mandamus with damages must likewise fail and dismiss for utter lack
of merit.
Petitioner has no cause of action
to claim damages against respondents
in the absence of concrete and hard
evidence to support the same.
Petitioner, under paragraph 15 of his second cause of action is
claiming monetary damages in the amount of Two Hundred Thousand
Pesos

(P 200,000.00) for the unlawful act of respondents of

refusing to allow him to report for work and delaying payment of his
monetary benefits thus, causing him to suffer mental torture, sleepless
nights, wounded feelings and besmirched reputation. It bears to
emphasized in the case at bar that the issue/s raised by petitioner
against respondents has become MOOT and ACADEMIC already since
proper and immediate action has been taken by respondents with
respect to his desire to report for work and immediate payment of his
back salaries and other monetary benefits covering the period June
2003 to December 2003 had been received by him as evidenced by an
ORDER dated November 8, 2004 issued by Director Rogelio C. Limare
of the Civil Service Commission of Regional Office IX which is hereto
attached and marked as Annex 8). It is well settled under the law that
the provisional remedy of mandamus will not lie if the issue/cause of
action raised by petitioner has become moot and academic or fait
accompli already hence the prayer for monetary moral damages must
likewise fail. Moreover, the actuation and disposition of respondents in
the instant case was based purely on honest judgment which could not
be the legal basis of awarding petitioner moral damages. There is no
basis for the grant of moral damages in the absence of unlawful act,
fraud and bad faith since respondents in the instant case rendered an
honest judgment based in the surrounding circumstances in the case

at bar. The law specifically enumerated the basis for the award of
moral damages.
Wrongful act, fraud and bad faith. In order that a
person may be made liable to the payment of moral
damages, the law requires that his act be wrongful. The
adverse result of an action does not per se make the act
wrongful and subject the actor to the payment of moral
damages. The law could not have meant to impose a
penalty on the right to litigate. Such right is so precious
that moral damages may not be charged on those who
may exercise it erroneously. In the absence of malice and
bad faith, the mental anguish suffered by a person for
having been made defendant in a civil case is not that kind
of anxiety, which would warrant the award of moral
damages. The worries and anxieties suffered by him were
only such as are usually caused to a party haled into Court
as a defendant in a litigation. Therefore, there is no
sufficient justification for the award of moral damages,
more so, exemplary damages.
In short, moral damages cannot be awarded in the
absence of wrongful act or omission or fraud or bad faith.
When the action is filed in good faith there should be no
penalty in the right to litigate. One may have erred, but
error alone is not a ground for moral damages.
(Notes on Torts and Damages, Alicia Gonzales-Decano, 1992 pp.
162-163)
Likewise, the prayer of petitioner for exemplary damages against
respondents have no basis in law in the absence of a showing that
petitioner is entitled to moral damages. Thus, the High Court ruled that
in the absence of moral, temperate, liquidated or compensatory
damages, no exemplary damages can be granted for exemplary
damages are allowed only in ADDITION to any of the four kinds of
damages mentioned. (Fores vs. Miranda 165 Phil, 266) Similarly, the
prayer of petitioner for the award of litigation expenses and attorneys
fees charge against respondents has no basis in fact and in law. The
aforesaid expenses were incurred by petitioner as a result of his
initiative hence necessating the payment of aforesaid expenses based
on an honest judgment rendered by respondents against petitioner.
PRAYER
WHEREFORE, premises considered, it is respectfully prayed of
this Honorable Court that after due hearing and consideration the

special civil action of Mandamus with Damages filed by petitioner be

DISMISSED for utter lack of merit and the prayer seeking for the award
of moral and exemplary and litigation expenses including attorneys
fees be likewise DISMISSED for lack of merit and evidence to support
the same.
Respondents likewise prayed for other reliefs and remedies,
which the Honorable Court may deem just and equitable in the
premises.
March 3, 2005, Isabela City, Basilan.

ATTY. ____________________
Counsel for Respondents

Copy furnished:
ATTY. ARNULFO H. MANIGAS
Counsel for Petitioner
Isabela City, Basilan

REPUBLIC OF THE PHILIPPINES

ISABELA, BASILAN

)
) S.S.

JOINT VERIFICATION
WE, DR. DOMINGO REMUS A. DAYRIT and EDUARD D.
SUMERGIDO, both of legal age, Filipino, and after having been duly
sworn to before the law, do hereby depose and say, THAT:
1. We are the respondents in the above-mentioned case;
2. We have caused the preparation of the foregoing Answer; and

3. The contents thereof are true and correct of our own

knowledge and belief.

DR. DOMINGO REMUS A. DAYRIT

SUMERGIDO
Affiant

EDUARD D.
Affiant

SUBSCRIBED AND SWORN to before me this ____ day of March

2005 in Isabela City, Basilan.

Doc. No.________;
Page No. _______;
Book No. _______;
Series of 2005.