BCDA: CA decision on John Hay row irregular, abuse of discretion

By Melody Brawner

The state-owned Bases Conversion and Development Authority (BCDA) said it found the decision of the Court of Appeals’ (CA) Special Fifth Division highly irregular and in grave abuse of discretion, and vowed to  contest the decision as part of its rights under the judicial process and its mandate to protect the interest of government and the public.

“We are studying our legal options on whether to file a motion for reconsideration or go straight to the Supreme Court. But if there is one thing we are sure of, we will contest the patently erroneous decision of the CA,” BCDA head for legal services lawyer Peter Paul Andrew T. Flores said.

According to Flores, it is highly irregular for a court to modify the Final Award of an Arbitral Tribunal.

He noted that the final award has already been confirmed by the Regional Trial Court (RTC) of Baguio based on BCDA’s and CJH Development Corporation’s (CJHDevCo) respective petitions to confirm the said award. “The Final Award became executory after all the parties accepted the judicial confirmation by the RTC,” he said.

Flores said the 67-page decision as ordered by Associate Justice Noel G. Tijam and concurred by Associate Justice Myra V. Garcia-Fernandez and Associate Justice Victoria Isabel A. Paredes led to a modified and different interpretation of the Final Award.

He said through its petition before the CA and the resulting decision, CJHDevCo has circumvented the law by doing what under the Special ADP Rules, it is proscribed or prohibited from doing.

“CJHDevCo, through its petition before the CA, in effect modified and amended the Final Award and Judicial Confirmation,” Flores said.

Flores said the suit filed by CJHDevCo before the CA, supposedly in behalf of its sublessees, was self-serving and made to perpetuate its operations despite the ruling evicting it from Camp John Hay as CJHDevCo, its affiliates and officials held interest in about 20 percent of all sublessees.

The intervenors are mostly affiliates such as the College Assurance Plan, subsidiaries such as the CJH Golf Club, and various associates. The CA is very much aware that the intervenors are the same parties related to CJHDevCo and were never innocent sublessees.

He said CJHDevCo was a sublessor in bad faith. “Knowing that their [CJHDevCo] lease with BCDA was only for 25 years, subject to renewal for another 25 years and not  an automatic 50 years. CJHDevCo nonetheless gave a 50-year straight lease to its sublessees,” Flores said.

He said the CA’s decision and interpretation of the Arbitral Award has also obstructed and delayed the implementation of the said award.

According to Flores the Final Award of the Arbitral Tribunal is very clear. It orders “CJHDevCo “to vacate the leased premises and promptly deliver the leased property, inclusive of all new constructions and permanent improvements introduced during the term of the Lease as reckoned from the execution of the Original Lease Agreement to Respondent [BCDA] in good and tenantable condition in all respects, reasonable wear and tear excepted.”

The Final Award also ordered BCDA “to return to  Claimant [CJHDevCo] the total amount of rentals Claimant  has paid in the total amount of P1,421,096,052.00 [P1.42 billion].

He said consistent with the Final Award directing rescission and mutual restitution, CJHDevCo once having been refunded by BCDA all the lease payments it paid to BCDA and being released from obligation for the unpaid lease payments due BCDA to the tune of P3.4 billion, CJHDevCo has the reciprocal obligation to refund its sublessees  all that were paid so that the sublessees may themselves be restored.

“Otherwise, CJHDevCo will have been unjustly enriched as the sublessees would have been deprived of both their sublease and their lease payments,” Flores said.

He noted the decision of the CA’s Former Special Fifth Division is grossly disadvantageous to government as it absolves CJHDevCo from the responsibility of refunding its sublessees and imposes upon the government the obligation to honor sublease contracts until 2046 without compensation.

The Baguio RTC   had issued a writ of rxecution that gives the green light for the   Baguio sheriff to implement the said award. However, before the Baguio Sheriff could implement the “Notice to Vacate” CJHDevCo secured a Temporary Restraining Order (TRO) from the CA that has since expired.  “With the issuance of the CA’s Former Fifth Division of the decision, the implementation of the final award will be delayed.”

For his part, BCDA President and CEO ArnelPaciano D. Casanova said the Sobrepeña-led CJHDevCo is using the courts to delay the government to develop government property and infrastructure and provide better facilities and services for the public.

Casanova said by misleading the Court of Appeals to issue a highly irregular decision, Sobrepeña has denied the people in Camp John Hay and Baguio City better services and facilities.

He said this is not a new tactic of Sobrepeña.  “The Sobrepeña group has also evaded liabilities in the College Assurance Plan (CAP) denying thousands of children the right to education by doing the same squid tactics through misinterpretation and corporate-layering,” Casanova said.

“BCDA remains firm in its resolve to defend and protect public interest. We shall continue the fight to recover government property that has been exploited by the few who are rich and powerful at the expense of the many who are poor and powerless,” Casanova added.