Refusal or neglect to perform official duty (Article 27, Civil Code)

Any person suffering material or moral loss because a public servant or employee refuses or neglects, without just cause, to perform his official duty may file an action for damages and other relief against the latter, without prejudice to any disciplinary administrative action that may be taken. (Article 27, Civil Code) According to Bocobo, Article 27 of the Philippine Civil Code was taken from Article 839 of the German Civil Code. The purpose of this provision is to remedy the culture of bribery in which a public officials or employees, for some flimsy excuse, delay or refuse the performance of duty until they get a bribe money. (Bocobo, Study of Proposed Civil Code Changes, 16 Lawyers Journal, p. 97)

The Supreme Court confirms this purpose in the case of Tuazon v. Court of Appeals (G.R. No. 90107, August 21, 1992) which held:

It has been remarked that one purpose of Article 27 is to end the “bribery system, where the public official, for some flimsy excuse, delays or refuses the performance of his duty until he gets some kind of pabagsak.’’ (E. Paras, Civil Code of the Philippines [Annotated], 1989, pp. 145146). Official inaction may also be due to plain indolence or a cynical indifference to the responsibilities of public service.

According to Phil. Match Co., Ltd. v. City of Cebu (81 SCRA 99), the provision (Art. 27) presupposes that the refusal or omission of a public official to perform his official duty is attributable to malice or inexcusable negligence. In any event, the erring public functionary is justly punishable under this Article for whatever loss or damage the complainant [may] sustain.

The official duty referred to in the law must be a ministerial duty, not a discretionary function. For example, the duty of a prosecutor to file a case after preliminary investigation is discretionary. Hence, his refusal to prosecute a case after preliminary investigation because he finds no sufficient evidence to establish a prima facie case is not a refusal without just cause to perform an official duty. (Zulueta vs. Nicolas, G.R. No. L-8252, January 31, 1958)

Refusal of the fiscal to prosecute when after an investigation he finds no sufficient evidence to establish a prima facie case is not a refusal, without just cause, to perform an official duty. The fiscal has for sure the legal duty to prosecute crimes where there is enough evidence to justify such action. But it is equally his duty not to prosecute when after an investigation he has become convinced that the evidence available is not enough to establish a prima facie case. The fiscal is not bound to accept the opinion of the complainant in a criminal case as to whether or not a prima facie case exists. Vested with authority and discretion to determine whether there is sufficient evidence to justify the filing of the corresponding information and, having control of the prosecution of a criminal case, the fiscal cannot be subjected to dictation from the offended party (People vs. Liggayu, et al., 97 Phil., 865, 51 Off. Gaz., 5644; People vs. Natoza, 100 Phil., 533, 53 Off. Gaz., 8099). Having legal cause to refrain from filing an information against the persons whom the herein plaintiff wants him to charge with libel, the defendant fiscal cannot be said to have refused or neglected without just cause to perform his official duty. On the contrary, it would appear that he performed it. (G.R. No. L-8252, January 31, 1958)

According to Albano, if the duty of the officer is essentially discretionary, like the power to appoint, there is no liability for non-feasance since discretion may involve the non-performance of an act. Article 27 presupposes that a person actually suffers a material or a moral loss on account of the unreasonable refusal or neglect of a public servant or employee to perform his official duty without a just cause therefor. In other words, there must be a willful or illegal act or omission by a public servant in the performance of his official duty, by reason of which a person suffers thereby either a material or a moral loss.

Paras gives this example. A goes to a government office where B, an administrative clerk. Instead of attending to A (upon A’s request) just reads the newspaper. If A suffers material or moral loss, B will be liable. Also, if B refuses to perform his duty unless given a bribe, damages may be asked of him in addition to the proper criminal and administrative liabilities.

In the case of Amaro v. Sumangit, a Chief of Police, instead of giving legal assistance to the victim of an assault, intimidated and harassed said victim, his father, and his witnesses. He was held liable for damages under Article 27. This is so even if other remedies are also available to the victim. (Amaro v. Sumangit, G.R. No. L-14986, July 31, 1962)

In Ledesma v. Court of Appeals (G.R. No. 54598, April 15, 1988), a college student was scheduled to graduate with magna cum laude honors. However, this was deprived of her because her lending of money to members of an organization of which she was a member, purportedly in violation of existing school rules and regulations, according to the President of the State College. This was done although the Bureau of Public Schools already intervened and instructed give her said honors. Despite this, she was made to graduate as a plain student. The Supreme Court held the President liable for damages.

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