THE Court of Appeals (CA) on Thursday questioned the sincerity of the state-run Bases Conversion and Development Authority (BCDA) to fully comply with the decision of the arbitration panel, compelling it to pay the developer of Camp John Hay P1.42 billion in exchange for vacating its leased premises.
This developed as the CA’s Special Fifth Division, chaired by Associate Justice Noel Tijam, announced that it has ruled to allow a large group of investors at the former US military to intervene in the petition filed by Camp John Hay Development Corp. (CJHDevCo), seeking to stop the BCDA from using the arbitration panel’s decision to evict third-party investors at the 247-hectare former American recreational facility in Baguio City.
Tijam added that the appellate court will decide on the other motions to intervene filed by other investors in due time.
Lawyer Joel Bodegon, who represents intervener Camp John Hay Golf Club, which occupies 20 percent, or 48.43 hectares, of the leased area at Camp John Hay with more than 800 members, immediately welcomed the ruling.
Bodegon also represents CAP John Hay Trade and Cultural Center (JHTCC), a copetitioner in the main petition filed by CJHDevCo.
During Thursday’s continuation of the summary hearing on the writ of injunction being sought by CJHDevCo to protect third-party investors from being evicted by the BCDA, Tijam questioned the BCDA on its ability to fully comply wih the arbitral award.
Tijam noted that, while the BCDA is pushing CJHDevCo and the third-party investors to immediately vacate its premises, the agency had reasoned out that its compliance with the arbitration award is still subject to regulations of the Commission on Audit (COA).
“The arbitration award does not make any distinction or qualification. The award does not say it is subject to COA regulations,” he said.
“Why should it be necessary to enforce the notice to vacate if there is no actual payment yet,” Tijam added.
Despite the arbitral tribunal award, Tijam said the hands of the COA are not tied, as they can conduct audit and even disallowances, which may lead to the “dimunition” of the award.
He added that, based on the language of the arbitral award, its implementation is “reciprocal” to the payment of award, or should be kaliwaan.
BCDA lawyer Demetrio Custodio said the agency must follow COA rules, as it is a government institution. “We have no recourse, we are a government institution,” Custodio said.
“We do not accede to the idea that it’s kaliwaan,” he added.
Arguing for his client CAP-JHTCC, Bodegon told the CA that the arbitral award is not a judgment of eviction but a judgment of rescission of contract, thus, cannot be used as basis to justify their removal from the leased property.
“What applies in this situation is not the law on lease but the law on rescission,” he said.
He said third-party investors, like CAP-JHTCC, stand to suffer “irreparable damage” if the writ of execution is not granted.
Bodegon noted that its client spent more than P150 million for the construction of the trade center.
“Losing it would mean the demise of CAP trade and the deprivation of ownership without just compensation,” the lawyer said.
Bodegon added that their eviction from the leased property will also be tantamount “to unjust enrichment” on the part of the BCDA.
The lawyer, however, clarified that there is nothing wrong with the arbitral award, but the problem lies with the way the BCDA would want to implement it.
“The BCDA considered the third parties covered by the arbitral award when it does not say about third parties,” he added.
He insisted that the contracts of the third parties with CJHDevCo were not invalidated by the arbitral award. “The writ of execution and the notice to vacate went beyond the arbitral decision,” Bodegon added.
Earlier, the CJHDevCo asked the CA to grant its prayer for a writ of injunction in order to protect the interest of the more than 1,600 third-party investors inside Camp John Hay.
The CJHDevCo said their tenants have valid contracts that should be respected by the BCDA.
The CA earlier issued a 60-day temporary restraining order (TRO), enjoining the Regional Trial Court in Baguio City from evicting CJHDevCo from the former American recreational facility.
The TRO will expire on July 19, thus, the need for CJHDevCo for a writ of injunction to indefinitely enjoin the BCDA from evicting its tenants, pending the resolution of its petition seeking to exclude third parties from being covered by the arbitral award.