Thursday, June 30, 2005
Motion to dismiss averts Tomas show in court case
For another day, Cebu City Mayor Tomas Osmeña missed the chance to take the witness stand and explain why he closed the South Coastal Road.
Through Assistant City Attorney Joseph Bernaldez, defendants Osmeña, Nigel Paul Villarete and Francisco Fernandez filed motions to dismiss the case and defer yesterday’s hearing. They cited a lack of cause of action.
They also questioned complainant Alfredo Sipalay’s contention that he filed the suit in his capacity as a taxpayer, as well as the Integrated Bar of the Philippines (IBP) Cebu City Chapter’s intervention in the case.
Sipalay filed an injunction case with a prayer for a writ of preliminary injunction against the three officials last April 15, in relation to what he said was the illegal closure of the coastal road last April 8.
The IBP, on the other hand, stepped into the case last June 6, by filing a motion for intervention.
But according to the defendants’ nine-page motion, Sipalay’s complaint cannot be a taxpayer’s suit, since it failed to meet two requisites.
These are: “That public funds are disbursed by a political subdivision or instrumentality and, in doing so, a law is violated or some irregularity is committed; and that the petitioner is directly affected by the ultra vires act.”
Avoidance?
“Clearly, the present suit does not involve a disbursement of public funds involving the defendants. Therefore, Atty. Sipalay’s complaint as a taxpayer’s suit cannot be given due course,” the motion read.
Sipalay, however, asked the defendants why they filed the motion to dismiss just yesterday, when the case has been heard for two and a half months.
The mayor was supposed to be presented yesterday as the IBP’s hostile witness, the third time a schedule was set to accommodate Osmeña.
“This is clearly a dilatory tactic. They don’t want Osmeña to testify. Hadlok sila kay (They are afraid because) there was no legal basis for the closure of the coastal road,” Sipalay said.
“I filed the case because I believe in the rules of the court, so the court can rectify the issue. But the mayor has no respect for the legal processes. He closed the coastal road without the court’s permission. Now, he should face the case head on,” he added.
Osmeña failed to attend the first schedule of his presentation last June 20, with his lawyers explaining that he had to attend the burial of his friend Col. Zosimo Angan.
‘Judge them’
Sipalay obtained a certification from Cosmopolitan Memorial Chapels that Angan’s burial was at 10 a.m., while the hearing was scheduled at 3 p.m.
Osmeña, for his part, told reporters on Monday that he failed to attend the burial since the information he got was that the ceremony would start at noon.
The June 22 schedule was also moved, since President Arroyo was in town.
At City Hall, Osmeña threatened yesterday to divulge the income taxes that IBP Cebu City officials paid, “so the public could judge them.”
He gave this comment when reporters asked about his failure last Monday to attend the hearing.
Last year, Osmeña likewise tangled with the past IBP officials, over their threat to sue the City for failing to comply with all provisions of the Solid Waste Management Act.
He said Sipalay, “claiming moral ascendancy as a taxpayer,” showed some nerve in filing a complaint over the road’s closure, when he, as mayor, was just trying to protect the City’s interest.
Asked to clarify if his intention was to show that IBP officials underpaid their income tax obligations, the mayor did not give a categorical answer.
“That is for the public to decide,” he said, adding that the IBP officers may have even “paid more.” (JGA/With RHM)
(June 30, 2005 issue)
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