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[G.R. No. 140335.January 16, 2001]

GAMINDE vs. COA, et al.

EN BANC

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JAN 16 2001.

G.R. No. 140335(Thelma P. Gaminde, Petitionervs. Commission on Audit and/or Hon. Celso Gangan, Hon. Raul C. Flores and Emmanuel M. Dalman, Respondents; Julio F. Desamito, Intervenor .)

We deny the petition for intervention filed on December 28, 2000, by Commissioner Julio F Desamito, Commission on Elections.

We find no merit in the petition for intervention and the motion for reconsideration.

First, the intervention is filed out of time. Rule 19, 1997 Rules of Civil Procedure on intervention prescribes the requisites for intervention of a non-party, to wit:

"(1) legal interest in the mater in controversy; or

"(2) legal interest in the success of either of the parties; or

"(3) legal interest against both; or

"(4) so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof;

"(5) intervention will not unduly delay or prejudice the adjudication of rights of original parties;

"(6) intervenor's rights may not be fully protected in a separate proceeding. ¹ Ortega v. Court of Appeals, 298 SCRA 597, 608 [1998].

Section 2 of the Rule further provides that the motion for intervention must be filed at "any time before rendition of judgment" by the court. ² Pascual v. Court of Appeals, 300 SCRA 214, 235 [1998].Intervention can no longer be allowed in a case already terminated by final judgment. ³ Chavez v. Presidential Commission on Good Government, 307 SCRA 394, 398 [1999].

Second, Commissioner Desamito's intervention, if granted, would prejudice the rights of the original parties to the case. The salaries and emoluments of Commissioner Thelma P. Gaminde and her co-terminous staff during her tenure as de facto officer from February 02, 1999, until February 02, 2000, would stay disallowed and her retirement benefits would be affected unless the disallowances are reversed. The COA decision disallowed petitioner's salaries and allowances beyond February 02, 1999.

Third, Commissioner Desamito's right to office may be the proper subject of separate proceedings. He is not an indispensable party with an interest in the subject matter of the instant case that a final adjudication can not be made in his absence without affecting such interest. In fact, the factual milieu of the first appointees to the Commission on Elections under the 1987 Constitution may not necessarily be the same as in the case at bar. However, in his case, Commissioner Desamito was appointed on December 21, 1994, to a seven year term, commencing on February 02, 1994, and expiring on February 2, 2001. He could not have been legally appointed on December 21, 1994, and made effective February 02, 1995, for that would exceed seven-year tenure Commissioner Desamito assumed office on January 03, 1995. His predecessor was Commissioner Vicente B. de Lima, who was appointed on February 07, 1992, to serve the unexpired term of Commissioner Alfredo Abueg, Jr., expiring on November 04, 1994 (should be February 02, 1994). If his term commenced on February 02 1988, until February 02, 1995, but retired on November 04, 1994, Commissioner Desamito could serve only the unexpired term from November 04, 1994 to February 02, 1995. ⁴ See Republic v. Imperial, 96 Phil. 770 [1955]. Hence, he is illegally serving to date.On the other hand, if his term were still good up to February 2, 2002, he would be serving more than seven years.This would violate the Constitution.No person may serve more than seven years as Commissioner, Commission on Elections, no matter how competent or indispensable he may be. ⁵ Article IX (C) , Section 1 (2), in relation to Article XVIII, Sec. 15, 1987 Constitution.

WHEREFORE, the petition for intervention of ^* July changed to Julio Commissioner Julio F. Desamito of the Commission on Elections is DENIED.The denial is final.Justices Mendoza and de Leon, Jr. maintain their dissent as set forth in the original decision.

Very truly yours,

LUZVIMINDA D. PUNO
Clerk of Court

(Sgd.) MA. LUISA D. VILLARAMA

Asst. Clerk of Court

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