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FIRST DIVISION

G.R. No. L-55151 March 17, 1981

DAVID AGUILA, EDITA BUENO, EVELITO ELENTO, RESURRECTION INTING, ANTONIO LIM and WILFREDO CABARDO, Petitioners, vs. HON. MELECIO A. GENATO and DOMINADOR B. BORJE, respondents.

MELENCIO-HERRERA, J.:

The principal issue raised in this certiorari petition with a prayer for a Writ of Preliminary Injunction is whether or not respondent Judge committed grave abuse of discretion in issuing a Restraining Order, which had the effect of allowing private respondent, Dominador B. Borje, to retain his position as member of the Board of Directors of the Misamis Occidental Electric Cooperative, Inc ., (MOELCI II)chanrobles virtual law library

Succintly stated, the pertinent facts follow: chanrobles virtual law library

Petitioners David Aguila and Edita Bueno are the Deputy Administrator and Director for Cooperative Development, respectively, of the National Electrification Administration (NEA).chanroblesvirtualawlibrary chanrobles virtual law library

Petitioner Evelito Elento is the Acting General Manager of MOELCI II, while petitioners Ressurrection Inting, Antonio Lim and Wilfredo Cabardo, are members of its Board of Directors.chanroblesvirtualawlibrary chanrobles virtual law library

Private respondent Dominador B. Borje, representing the North District of Ozamiz City, was elected Director of MOELCI II, to hold office as such for three years starting March 25, 1979.chanroblesvirtualawlibrary chanrobles virtual law library

Section 21 of Presidential Decree No. 269 (second paragraph) provides: chanrobles virtual law library

The provision of any law or regulation to the contrary notwithstanding, an officer or employee of the government shag be eligible for membership in any cooperative if he meets the qualifications therefor and he shall not be precluded from being elected to or holding any Position therein, or from receiving such compensation or fee in relation thereto as may be authorized by the by-laws; Provided That elective officers of the government, except barrio captains and councilors, shall be ineligible to become officers and/or directors of any cooperative, ... (emphasis supplied)

Section 3, Article IV of the By-laws of MOELCI II also explicitly states: chanrobles virtual law library

Section 3. Qualifications. ... No person shall be eligible to become or to remain a Board member of the Cooperative who chanrobles virtual law library

xxx xxx xxxchanrobles virtual law library

(c) holds an elective office in the government above the level of a Barangay Captain chanrobles virtual law library

xxx xxx xxxchanrobles virtual law library

(emphasis supplied)

On 4 January 1980, private respondent filed his certificate of candidacy for the position of member of the Sangguniang Panglunsod of Ozamiz City in the 30 January 1980 local elections.chanroblesvirtualawlibrarychanrobles virtual law library

On 7 January 1980, the NEA, through Administrator Pedro G. Dumol, issued Memorandum No. 18 to the effect that all officials and employees of electric cooperatives who run for public office, win and assume office, shall be considered The Memorandum was issued pursuant to the authority granted under PD No. 1645, amending PD No. 269, reading.chanroblesvirtualawlibrarychanrobles virtual law library

10. ... the NEA is empowered to issue orders, rules and regulations ... in the exercise of its power of supervision and control over electric cooperatives and other borrower, supervised or control entities (Sec. 5, amending Sec. 10 of P.D. No. 269). ¹chanrobles virtual law library

On January 1980, the NEA Deputy Administrator sent a telegram to the Acting General Manager of MOELCI II stating that should private respondent Borje be elected to the Sangguniang Bayan, he shall be considered resigned from his position as Director for the North District of Ozamiz City, Private respondent moved reconsideration and requested that he be allowed to serve the unexpired term of his office in accordance with PD No. 269. Reconsideration was denied by NEA on 7 February 1980.chanroblesvirtualawlibrary chanrobles virtual law library

On 3 March 1980, private respondent filed a Petition for "Prohibition, mandamus & Construction of Legal Provisions with Preliminary Injunction and Damages" against petitioners before the Court of First Instance of Misamis Occidental, Branch II (Spec. Case No. 0511), seeking a declaration of entitlement to remain and to serve his unexpired term as Director of MOELCI II until March, 1982.chanroblesvirtualawlibrary chanrobles virtual law library

On 3 March 1980, having won the election, private respondent assumed office and began discharging his functions.chanroblesvirtualawlibrary chanrobles virtual law library

On the same date, 3 March 1980, respondent Judge issued, ex- parte, a temporary restraining Order commanding petitioners considering private respondent as resigned, and, instead, to snow him to retain his position as member of the Board of Directors of MOELCI IIpending hearing. ²chanrobles virtual law library

Petitioners moved to dismiss and to dissolve the Restraining Order alleging lack of cause of action and invoking section 21 of PD No. 269 (supra), section 3, Article IV of the by laws OF MOELCI II(supra), as well as section 24 of PD No. 269 providing that: chanrobles virtual law library

... The by-laws shall prescribe the number of directors their qualifications other than those prescribed in this Decree, the manner of holding meetings of the board and of electing successors to directors who shall resign, die or otherwise be incapable of acting. The bylaws may also provide for the removal of directors from office and for the election of their successors ...

On 24 March 1980, respondent Judge lifted and dissolved the Restraining Order, ³only to restore it the next day, 25 March 1980. ⁴chanrobles virtual law library

In their Motion seeking reconsideration of the Order of 25 March 1980, petitioners stressed that NEA possessed the power and authority to promulgate Memorandum No 18, and that, similarly, the Board of Directors of MOELCI IIhad the power to implement the same under PD No. 269, as amended by PD 1645.chanroblesvirtualawlibrary chanrobles virtual law library

Petitioners filed their Answer on 6 April 1980 reiterating the grounds in their Motion to Dismiss.chanroblesvirtualawlibrary chanrobles virtual law library

On 8 May 1980, vacation Judge Celso Largo reconsidered the Order of respondent Judge, dated 25 March 1980, and dissolved the Restraining Order. ⁵chanrobles virtual law library

On 10 May 1980, the Board of Directors of MOELCI II held a special meeting and passed Resolution No. 121, S-80, implementing NEA Circular No. 18 and declaring private respondent's position as member of the Board of Directors of MOELCI II vacant.chanroblesvirtualawlibrary chanrobles virtual law library

On 6 June 1980, upon a Motion for Reconsideration, respondent Judge set aside the Order of the vacation Judge, dated 8 May 1980, in effect reviving the Restraining Order, on the ground that, as "councilor" of Ozamiz City, section 21 of PD No. 269 itself exempts private respondent from the prohibition imposed on elective officials to become Directors of electric cooperatives. ⁶chanrobles virtual law library

Hence, this Petition filed on 29 September 1980 by petitioners, through the Solicitor General, advancing the view that Courts of First Instance have no jurisdiction to issue a Restraining Order and that respondent Judge had committed grave abuse of discretion in issuing the same.chanroblesvirtualawlibrary chanrobles virtual law library

On 10 October 1980 we required respondents to submit an Answer and issued a Restraining Order enjoining respondents from enforcing the Order of the Court a quo dated 6 June 1980 and from conducting further proceedings in the case below. Private respondent Borje has filed his Answer, petitioners have submitted their Reply, and on 2 February 1981, we resolved to give due course to the Petition and to consider the case submitted for decision.chanroblesvirtualawlibrary chanrobles virtual law library

We find that respondent Judge gravely abused his discretion, amounting to lack of jurisdiction, in issuing the various Restraining Orders, the last of which was dated 6 June 1980. Private respondent has shown no clear and explicit right to the position of Director of MOELCI IIand is, therefore, not entitled to a Restraining Order, which partook of the nature of a mandatory Injunction, commanding as it did that private respondent be retained in his position as such Director. By having been elected member of the Sangguniang Panglunsod of Ozamiz City, private respondent rendered himself ineligible to continue serving as a Director of MOELCI IIby virtue of the clear mandate of PD No. 269 providing that except for "barrio captains and councilors", elective officials are ineligible to become officers and/or directors of any cooperative. It is clear to us that the term barrio modifies both captains and councilors. Further, the MOELCI II, by-laws explicitly state that no person can remain a member of the Board if he "holds an elective office above the level of barrio captain.chanroblesvirtualawlibrary chanrobles virtual law library

Private respondent's argument that PD 269 (sec. 21) does not prohibit Board members of a cooperatives from continuing in their position prior to their election, and that pursuant to section 24 of PD No. 269 he is entitled, as Director, to hold office for the term for which he is erected and until his successor is elected and qualified," is untenable. Eligibility to an office should be construed as of a continuing nature and must exist at the commencement of the term and during occupancy of the office. The fact that private respondent may have been qualified at the time he assumed the Directorship is not sufficient to entitle him to continue holding office, if during the continuance of his incumbency he ceases to be qualified. Private respondent was qualified to become a director of MOELCI II at the time of the commencement of his term, but his election as member of the Sangguniang Panglunsod of Ozamiz City, and his subsequent assumption of office, disqualified him to continue as such.chanroblesvirtualawlibrary chanrobles virtual law library

Moreover, it should be recalled that when respondent Judge issued the Restraining Order of 6 June 1980. NEA Memorandum Circular No. 18 had already been implemented by the MOELCI Board in the latter's Resolution No. 121, passed on 10 May 1980, declaring the position of private respondent, as Director, vacant. Strictly speaking, therefore, there was no longer any position which private respondent could retain.chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, finding that respondent Judge acted with grave abuse of discretion tantamount to lack of jurisdiction in issuing the Restraining Order, dated 6 June 1980, the said Order is hereby annulled and set aside, and the Petition in Special Civil Case No. 05IIof the Court below hereby ordered dismissed. The temporary Restraining Order heretofore issued by this Court is hereby made permanent. No pronouncement as to costs.chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED.