G.R. No.

L-62050 November 25, 1983

JOSE "PEPITO" TIMONER, petitioner,
vs.
THE PEOPLE OF THE PHILIPPINES AND THE HONORABLE COURT OF APPEALS, IV
DIVISION, respondents.
Marciano C. Dating, Jr. and Jose & Fuentebella for petitioner.
The Solicitor General for respondents.

ESCOLIN, J .:+.wph!1
Petition for review of the affirmance in toto by the Court of Appeals, now the Intermediate Appellate
Court, of the judgment of conviction handed down by the then Municipal Court of Daet, Camarines
Norte, in Criminal Case No. 4281, entitled People of the Philippines vs. Jose Timoner, finding
petitioner guilty of the crime of grave coercion, as follows: t. hqw
WHEREFORE this Court finds the accused JOSE 'PEPITO' TIMONER guilty beyond
reasonable doubt of the crime of Grave Coercion as penalized under Art. 286 in the
Revised Penal Code, and hereby sentences the said accused pursuant to the
provision of Rule 64, Par. 3, to suffer SIX MONTHS OF IMPRISONMENT OF
ARRESTO MAYOR IN ITS MAXIMUM PERIOD, to pay a fine of P300.00 and to pay
the offended party in the amount of P5,000.00 as damages, without subsidiary
liability in case of insolvency. The other accused SAMUEL MORENA and ERNESTO
QUIBRAL are hereby ordered ACQUITTED.
The salient facts are not disputed. At about 10:00 in the evening of December 13, 1971, petitioner,
then Mayor of Daet, Camarines Norte, accompanied by two uniformed policemen, Samuel Morena
and Ernesto Quibral, and six laborers, arrived in front of the stalls along Maharlika highway, the main
thoroughfare of the same town. Upon orders of petitioner, these laborers proceeded to nail together
rough lumber slabs to fence off the stalls which protruded into the sidewalk of the Maharlika
highway. Among the structures thus barricaded were the barbershop of Pascual Dayaon, the
complaining witness and the store belonging to one Lourdes Pia-Rebustillos. These establishments
had been recommended for closure by the Municipal Health Officer, Dra. Alegre, for non-compliance
with certain health and sanitation requirements.
Thereafter, petitioner filed a complaint in the Court of First Instance of Camarines Norte against
Lourdes Pia-Rebustillos and others for judicial abatement of their stalls. The complaint, docketed as
Civil Case No. 2257, alleged that these stalls constituted public nuisances as well as nuisances per
se. Dayaon was never able to reopen his barbershop business.
Subsequently, petitioner and the two policemen, Morena and Quibral, were charged with the offense
of grave coercion before the Municipal Court of Daet. As already noted, the said court exonerated
the two policemen, but convicted petitioner of the crime charged as principal by inducement.
On appeal, the Court of Appeals affirmed in full the judgment of the trial court. Hence, the present
recourse.
Petitioner contends that the sealing off of complainant Dayaon's barbershop was done in abatement
of a public nuisance and, therefore, under lawful authority.
We find merit in this contention. Unquestionably, the barbershop in question did constitute a public
nuisance as defined under Article Nos. 694 and 695 of the Civil Code, to wit: t .hqw
ART. 694. A nuisance is any act, omission, establishment, business, condition of
property, or anything else which:
(1) Injures or endangers the health or safety of others; or
(2) Annoys or offends the senses; or
(3) Shocks, defies or disregards decency or morality; or
(4) Obstructs or interferes with the free passage of any public highway or street, or
any body of water; or
(5) Hinders or impairs the use of property.
ART. 695. Nuisance is either public or private. A public nuisance affects a community
or neighborhood or any considerable number of persons, although the extent of the
annoyance, danger or damage upon individuals may be unequal A private nuisance
is one that is not included in the foregoing definition.
The barbershop occupied a portion of the sidewalk of the poblacion's main thoroughfare and had
been recommended for closure by the Municipal Health Officer. In fact, the Court of First Instance of
Camarines Norte, in its decision in Civil Case No. 2257, declared said barbershop as a
nuisance per-se. Thus: t. hqw
Under the facts of the case, as well as the law in point, there is no semblance of any
legality or right that exists in favor of the defendants to build a stall and conduct their
business in a sidewalk, especially in a highway where it does not only constitute a
menace to the health of the general public passing through the street and also of the
unsanitary condition that is bred therein as well as the unsightly and ugly structures
in the said place. Moreover, even if it is claimed and pretended that there was a
license, permit or toleration of the defendants' makeshift store and living quarters for
a number of years does not lend legality to an act which is a nuisance per se. Such
nuisance affects the community or neighborhood or any considerable number of
persons and the general public which posed a danger to the people in general
passing and using that place, for in addition, this is an annoyance to the public by the
invasion of its rights the fact that it is in a public place and annoying to all who
come within its sphere [Baltazar vs. Carolina Midland, Ry, Co., 54 S.C. 242, 32 SB
258, cited in 11 Tolentino's Civil Code of the Philippines, p. 375; Kapisanan Lingkod
ng Bayan, Inc. vs. Lacson, CA-G.R. No. 27260R, March 25, 1964; 61 O.G. 2487].
xxx xxx xxx
... IN VIEW OF THE FOREGOING, the Court hereby declares that the structures
subject of this complaint as well as those occupied by the impleaded defendants are
nuisances per se and therefore orders the defendants to demolish the stall and
vacate the premises immediately ...
But even without this judicial pronouncement, petitioner could not have been faulted for having
fenced off said barbershop. Paragraph 3, Article 699 of the Civil Code authorizes the abatement of a
public nuisance without judicial proceedings. t. hqw
ART. 699. The remedies against a public nuisance are:
[l] A prosecution under the Penal Code or any local ordinance; or
[2] A civil action; or
[3] Abatement, without judicial proceedings.
In the case at bar, petitioner, as mayor of the town, merely implemented the aforesaid
recommendation of the Municipal Health Officer. Having then acted in good faith in the performance
of his duty, petitioner incurred no criminal liability.
Grave coercion is committed when "a person who, without authority of law, shall by means of
violence, prevent another from doing something not prohibited by law or compel to do something
against his will, either it be right or wrong."
1
The three elements of grave coercion are: [1] that any
person be prevented by another from doing something not prohibited by law, or compelled to do
something against his will, be it right or wrong; [2] that the prevention or compulsion be effected by
violence, either by material force or such display of it as would produce intimidation and control the will of
the offended party, and [3] that the person who restrained the will and liberty of another had no right to do
so, or, in other words, that the restraint was not made under authority of law or in the exercise of a lawful
right.
2

The third element being absent in the case at bar, petitioner cannot be held guilty of grave coercion.
WHEREFORE, the decision of the Court of Appeals in CA G.R. No. 19534-CR, is hereby set aside
and petitioner is acquitted of the crime charged. Costs de oficio.
SO ORDERED.1wph1. t

[G.R. No. 137862. November 11, 2004]
ALFREDO ESTRADA, RENATO T. CANILANG and MANUEL C.
LIM, petitioners, vs. COURT OF APPEALS AND BACNOTAN
CEMENT CORPORATION (BCC), respondents.
D E C I S I O N
AUSTRIA-MARTINEZ, J .:
Before this Court is a petition for review on certiorari of the decision
[1]
of
the Court of Appeals in CA-G.R. SP No. 44324, promulgated on April 6, 1998,
and the resolution
[2]
dated February 24, 1999 denying petitioners motion for
reconsideration.
The facts are as follows:
Alfredo Estrada, Renato T. Canilang and Manuel C. Lim, as concerned
citizens and taxpayers, filed on July 31, 1996, before the Regional Trial Court
(RTC) of Olongapo City, a complaint for Injunction and Damages with Prayer
for Preliminary Injunction and Temporary Restraining Order against Bacnotan
Cement Corp. (BCC), Wawandue Fishing Port, Inc. (WFPI), Jeffrey Khong
Hun as President of WFPI, Manuel Molina as Mayor of Subic, Zambales, and
Ricardo Serrano as Regional Director of the Department of Environment and
Natural Resources (DENR).
The complaint alleges that: WFPI and the Municipality of Subic entered
into an illegal lease contract, which in turn became the basis of a sub-lease in
favor of BCC; the sub-lease between WFPI and BCC is a violation of the first
lease because the cement plant, which BCC intended to operate in
Wawandue, Subic, Zambales, is not related to the fish port business of WFPI;
and BCCs cement plant is a nuisance because it will cause pollution,
endanger the health, life and limb of the residents and deprive them of the full
use and enjoyment of their properties. The plaintiffs prayed that an order be
issued: to restrain and prohibit BCC from opening, commissioning, or
otherwise operating its cement plant; and to require the defendants to jointly
and solidarily pay the plaintiffs P205,000.00 by way of actual, moral and
exemplary damages and attorneys fees.
[3]

Defendants WFPI/Khong Hun and BCC filed separate motions to dismiss,
both alleging that the complaint states no cause of action. BCC, in its motion,
added that: the plaintiffs failed to exhaust administrative remedies before
going to court; that the complaint was premature; and that the RTC has no
jurisdiction on the matter. Respondent Serrano of the DENR also filed a
motion to dismiss stating that there was no cause of action insofar as he is
concerned since there was nothing in the complaint that shows any dereliction
of duty on his part.
[4]

On December 6, 1996, Judge Eliodoro G. Ubiadas of RTC Olongapo City,
Branch 72, issued an order denying respondents motions to dismiss and
granting the prayer for a writ of preliminary injunction.
[5]
Pertinent portions of
the order read as follows:
The Court notes that the powers vested by law under Executive Order 192, Republic
Act 3931 and Presidential Decree 984 are regulatory merely and for the purpose of
determining whether pollution exists.
However, under the laws above-mentioned, the powers granted to the DENR thru the
Pollution Adjudication Board did not expressly exclude the Courts which under the
law are empowered to try both questions of facts and law to determine whether
pollution which maybe nuisance per se or by accidents (sic) exist or likely to
exist. Under the Constitution, the courts are imbued the inherent power of general
jurisdiction to resolve these issues. While it maybe (sic) true that petitioners might
have first to seek relief thru the DENRs Pollution Adjudication Board a resort to the
remedy provided under the Pollution Adjudication Board is rendered useless and
ineffective in the light of the urgency that the said pollution be restrained outright in
lieu of the impending risk described in the petition. It will be noted that the DENR
did not have the power either in Executive Order 192, Republic Act 3931 and
Presidential Decree 984 to issue a writ of injunction. The argument therefore for the
exhaustion of administrative remedy and lack of jurisdiction does not warrant the
dismissal of this petition against Bacnotan Cement Corporation.
[6]

Respondents motions for reconsideration were likewise denied by the trial
court in an order dated May 13, 1997.
[7]

Respondent BCC then went to the Court of Appeals on a petition
for certiorari and prohibition with preliminary injunction and/or temporary
restraining order seeking to reverse and set aside the orders dated December
6, 1996 and May 13, 1997 as well as to lift the writ of preliminary injunction
dated December 11, 1996.
On April 6, 1998, the Court of Appeals rendered its decision, granting
BCCs petition, thus:
WHEREFORE, in the light of the foregoing disquisitions, the instant petition for
certiorari is GRANTED. The assailed Orders dated December 6, 1996 and May 13,
1997 are hereby SET ASIDE. The writ of injunction issued by the public respondent
under date of December 11, 1996 is forthwith, LIFTED and the Complaint insofar as
petitioner BCC is concerned is ordered forthwith DISMISSED. No costs.
SO ORDERED.
[8]

It reasoned that:
FIRSTLY. We find that the denial of said Motion to Dismiss by the Court a quo,
was a grave abuse of discretion because of the doctrine of Administrative Remedy
which requires that where an administrative remedy is provided by statute, relief must
be sought administratively first before the Court will take action thereon. As ruled by
the Supreme Court in the case of Abe Abe, et al. vs. Manta (90 SCRA 524). When
an adequate remedy may be had within the Executive Department of the government
but nevertheless a litigant fails or refuses to avail himself of the same, the Judiciary
shall decline to interfere. This traditional attitude of the Court is based not only on
respect for party litigants but also on respect for a co-equal office in the
government. In fine, our Supreme Court has categorically explained in Aquino vs.
Mariano (129 SCRA 209) that whenever, there is an available Administrative Remedy
provided by law, no judicial recourse can be made until such remedy has been availed
of and exhausted for three (3) reasons that: (1) Resort to court maybe unnecessary if
administrative remedy is available; (2) Administrative Agency may be given a chance
to correct itself; and (3) The principle of Amity and Convenience requires that no
court can act until administrative processes are completed. Commissioner of Customs
vs. Navarro (77 SCRA 264).
SECONDLY, it is a well-settled rule that the jurisdiction of the Regional Trial Court is
general in character, referring to the existence of nuisance under the provision of
Article 694 of the New Civil Code. On the other hand, the Department of
Environment and Natural Resources, through the Pollution Adjudication Board (PAB)
under R.A. 3931 as amended by P.D. 984, prescribes the Abatement of Pollution. In
fine, when it comes to nuisance, the Court has general jurisdiction under the New
Civil Code. But when it comes to pollution which is specific, the administrative body
like the DENR has jurisdiction. Clearly, nuisance is general or broader in concept
while pollution is specific. Following the rule that the specific issue of pollution,
which is under the jurisdiction of DENR prevails over the general issue of nuisance
which is under the jurisdiction of the RTC (Lagman vs. City of Manila, 17 SCRA
579), there is no doubt that the DENR and not the Court should have
jurisdiction. Hence, the motion to dismiss filed by petitioner should have been
GRANTED by the Court a quo. Since it has no jurisdiction over the subject
matter. Its denial by public respondent was therefore a grave abuse of discretion,
which is correctible by certiorari.
THIRDLY. We should not lose sight of the fact that the authority to construct in this
case is necessarily required prior to the actual construction of petitioners cement
bulk terminal while the permit to operate likewise is required before the petitioners
cement bulk terminal commences its operation. In this case, the petitioner, at the
time, had only the authority to construct, pursuant to a valid contract between the
WFPI and the petitioner BCC, approved by the Sangguniang Bayan of Subic and
Sangguniang Panlalawigan of Zambales and pursuant to the requisite of
DENR. Again, it should be remembered that, at the time, petitioner did not yet have
the permit to operate (which should properly be made only after a factual
determination of the levels of pollution by the DENR). Hence, the injunction issued in
this case is premature and should not have been issued at all by public respondent.
FOURTHLY. The effect of the writ of injunction enjoining petitioner from operating
the cement bulk terminal (Order of December 6, 1996) and the public respondents
refusal to defer the proceedings below, virtually preempt the DENR from making
such determination, nay even the authority to issue the permit to operate is likewise
preempted. How can we therefore enjoin operation before the issuance of the permit
to operate? It is also a settled rule that the remedy of injunction is not proper where
an administrative remedy is available. The permit to operate may not even be issued,
at all, by the DENR (Buayan Cattle Co. Inc., vs. Quintillan, 128 SCRA 276).
Evidently, the writ of injunction issued in this case, as We view it, is premature. In
fact, by issuing the Order of Dec. 6, 1996, the public respondent wrestled the
authority from the DENR to determine whether the cement bulk terminal will cause
pollution or not, or whether the pollution may only be on acceptable level as to justify
the issuance of the permit to operate.
While conceding that prior resort should be made to the DENR, the respondent Judge
proceeded to take the contrary stand, following the private respondents contention
that the doctrine of exhaustion of administrative remedies are [sic] inapplicable, since
it would cause irreparable injury if private respondents should avail of administrative
step before taking Court action.
We do not agree.
The respondents contention is clearly baseless and highly speculative because how
can it possibly produce irreparable injury before the actual operation since petitioner
has not yet been issued permit to operate. Besides, We find no evidence shown in the
complaint or alleged therein that will support the presence of pollution and which
could properly be the subject of injunction.
Finally, it is interesting to note that the complaint filed by the private respondents has
no prayer for preliminary injunction (it was not asked, why then should it be
given?). Furthermore, the Sublease Agreement having been partly executed, it could
no longer be enjoined.
By and large, the lower courts denial of petitioners motion to dismiss is undoubtedly
a grave abuse of discretion amounting to lack of jurisdiction.
[9]

The Court of Appeals denied petitioners motion for reconsideration on
February 24, 1999.
[10]
Hence the present petition alleging that:
I
. . . THE HONORABLE COURT OF APPEALS HAD CLEARLY DEPARTED
FROM THE ESTABLISHED JURISPRUDENCE ENUNCIATED BY THIS
HONORABLE COURT WHEN IT RULED THAT THE HEREIN PETITIONERS
FAILED TO EXHAUST ADMINISTRATIVE REMEDIES AVAILABLE TO
THEM BEFORE THE DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOURCES (DENR) POLLUTION ADJUDICATION BOARD (PAB); and that
II
THE COURT OF APPEALS ALSO GROSSLY ERRED IN RULING THAT THE
REGIONAL TRIAL COURT OF OLONGAPO CITY, BRANCH 72 HAS NO
JURISDICTION OVER THE ISSUE OF POLLUTION.
[11]

Petitioners argue that: prior resort to an administrative agency is futile and
unnecessary since great and irreparable injury would ensue if the cement
repacking plant is allowed to operate in Wawandue, Subic, Zambales; only the
court can grant them speedy, effective and immediate relief since the DENR-
Pollution Adjudication Board (PAB) has no authority to issue the needed writ
of injunction prayed for by petitioners; E.O. No. 192,
[12]
R.A. No. 3931
[13]
or
P.D. No. 984
[14]
does not expressly exclude the power and authority of the
RTC to try both questions of fact and of law relative to the determination of the
existence of pollution arising from the operation of respondents cement
repacking plant either as a nuisance per se or anuisance per accidens; and
the lower court under the Constitution is imbued with the inherent power and
jurisdiction to resolve the issue of pollution.
[15]

In its Comment, BCC contends that: the instant petition should be
dismissed because it is not accompanied by a copy of the petition in CA G.R.
SP No. 44324, which violates Rule 45, Sec. 4 of the Rules of Court requiring
that the petition be accompanied by relevant pleadings;
[16]
the Court of
Appeals correctly held that the jurisdiction to determine the issue of pollution
is lodged primarily with the DENR and not with the RTC; under P.D. No. 984,
the task of determining the existence of pollution was bestowed on the
National Pollution Control Commission (NPCC), the powers of which were
assumed by the DENR under E.O. No. 192; the jurisdiction of the trial courts
anent abatement of nuisance in general cannot prevail over the specific,
specialized and technical jurisdiction of the DENR-PAB; under the doctrine of
exhaustion of administrative remedies, where competence to determine the
same issue is placed in the trial court and an administrative body and the
issue involves a specialized and technical matter, relief should first be sought
before the administrative body prior to instituting suit before the regular courts;
the relief sought by the petitioners to prevent the supposedly injurious
operation of BCCs cement bulk terminal can be effectively obtained from the
DENR, which, under P.D. No. 984, has the authority to grant, modify and
revoke permits, and to issue orders for the abatement of pollution and impose
mandatory pollution control measures for compliance;
[17]
since the BCC only
has an authority to construct and not yet permit to operate at the time of
the filing of the complaint, the writ of injunction issued by the trial court
preempted the DENR from making the determination of whether or not BCC
should be allowed to operate; the complaint was properly dismissed since
petitioners have no legal capacity to bring a suit for abatement of nuisance;
and the right invoked by petitioners is abstract and is not sufficient to confer
locus standi.
[18]

In their Reply, petitioners reiterated their arguments and added that they
have fully complied with the requirements of Rule 45.
[19]

The principal issue that needs to be resolved is whether or not the instant
case falls under the exceptional cases where prior resort to administrative
agencies need not be made before going to court.
We answer in the negative.
The doctrine of exhaustion of administrative remedies requires that resort
be first made with the administrative authorities in the resolution of a
controversy falling under their jurisdiction before the same may be elevated to
a court of justice for review.
[20]
If a remedy within the administrative machinery
is still available, with a procedure pursuant to law for an administrative officer
to decide the controversy, a party should first exhaust such remedy before
going to court. A premature invocation of a courts intervention renders the
complaint without cause of action and dismissible on such ground.
[21]

The reason for this is that prior availment of administrative remedy entails
lesser expenses and provides for a speedier disposition of
controversies. Comity and convenience also impel courts of justice to shy
away from a dispute until the system of administrative redress has been
completed and complied with.
[22]

As we explained in Gonzales vs. Court of Appeals,
[23]

The thrust of the rule on exhaustion of administrative remedies is that the courts must
allow the administrative agencies to carry out their functions and discharge their
responsibilities within the specialized areas of their respective competence. It is
presumed that an administrative agency, if afforded an opportunity to pass upon a
matter, will decide the same correctly, or correct any previous error committed in its
forum. Furthermore, reasons of law, comity and convenience prevent the courts from
entertaining cases proper for determination by administrative agencies. Hence,
premature resort to the courts necessarily becomes fatal to the cause of action of the
petitioner.
[24]

While the doctrine of exhaustion of administrative remedies is flexible and
may be disregarded in certain instances, such as:
(1) when there is a violation of due process,
(2) when the issue involved is purely a legal question,
(3) when the administrative action is patently illegal amounting to lack or excess of
jurisdiction,
(4) when there is estoppel on the part of the administrative agency concerned,
(5) when there is irreparable injury,
(6) when the respondent is a department secretary whose acts as an alter ego of
the President bears [sic] the implied and assumed approval of the latter,
(7) when to require exhaustion of administrative remedies would be unreasonable,
(8) when it would amount to a nullification of a claim,
(9) when the subject matter is a private land in land case proceedings,
(10) when the rule does not provide a plain, speedy and adequate remedy,
(11) when there are circumstances indicating the urgency of judicial intervention,
(12) when no administrative review is provided by law,
(13) where the rule of qualified political agency applies, and
(14) when the issue of non-exhaustion of administrative remedies has been
rendered moot.
[25]

we find, however, that the instant case does not fall under any of the
recognized exceptional circumstances.
Petitioners claim that their action before the trial court, without going to the
DENR first, is justified because they are in danger of suffering grave and
irreparable injury from the operation of respondents cement repacking plant
and the DENR does not have the power to grant them the relief they are
praying for.
We do not agree.
Republic Act No. 3931, An Act Creating the National Water and Air
Pollution Control Commission, was passed on June 18, 1964 to maintain
reasonable standards of purity for the waters and air of the country with their
utilization for domestic, agricultural, industrial and other legitimate
purposes. It created the NPCC which had the power, to issue, renew, or deny
permits, for the prevention and abatement of pollution.
[26]

In 1976, Presidential Decree No. 984 was enacted to strengthen the
NPCC giving it, among others, the following:
Sec. 6. Powers and Functions . . .
. . .
(e) Issue orders or decisions to compel compliance with the provisions of this
Decree and its implementing rules and regulations only after proper notice and
hearing.
(f) Make, alter or modify orders requiring the discontinuance of pollution
specifying the conditions and the time within which such discontinuance must
be accomplished.
(g) Issue, renew, or deny permits, under such conditions as it may determine to
be reasonable, for the prevention and abatement of pollution, for the discharge
of sewage, industrial waste, or for the installation or operation of sewage works
and industrial disposal system or parts thereof

(j) serve as arbitrator for the determination of reparations, or restitution of the
damages and losses resulting from pollution.
P.D. No. 984 also empowered the commission to issue ex parte orders
directing the discontinuance or temporary suspension or cessation of
operation of an establishment or person generating sewage or wastes without
the necessity of prior public hearing whenever it finds a prima facie evidence
that the discharged sewage or wastes are of immediate threat to life, public
health, safety or welfare, or to animal or plant life, or exceed the allowable
standards set by the commission.
[27]

In 1987, Executive Order No. 192 was passed, reorganizing the DENR. It
transferred the power of the NPCC to the Environmental Management
Bureau
[28]
and created the PAB, under the Office of the Secretary, which
assumed the powers and functions of the NPCC with respect to the
adjudication of pollution cases under R.A. No. 3931 and P.D. No. 984.
[29]

In Pollution Adjudication Board vs. Court of Appeals,
[30]
we stated that the
PAB is the very agency of the government with the task of determining
whether the effluents of a particular industrial establishment comply with or
violate applicable anti-pollution statutory and regulatory provisions.
[31]
We also
recognized its power to issue, ex parte, cease and desist orders, thus:
. . . under . . . Section 7(a) of P.D. No. 984, an ex parte cease and desist order may be
issued by the (PAB) (a) whenever the wastes discharged by an establishment pose an
immediate threat to life, public health, safety or welfare, or to animal or plant life,
or (b) whenever such discharges or wastes exceed the allowable standards set by the
[NPCC]. . . . [I]t is not essential that the Board prove that an immediate threat to
life, public health, safety or welfare, or to animal or plant life exists before an ex
parte cease and desist order may be issued. It is enough if the Board finds that the
wastes discharged do exceed the allowable standards set by the [NPCC]. In respect
of discharges of wastes as to which allowable standards have been set by the
Commission, the Board may issue an ex parte cease and desist order when there
is prima-facie evidence of an establishment exceeding such allowable
standards. Where, however, the effluents or discharges have not yet been the subject
matter of allowable standards set by the Commission, then the Board may act on an ex
parte basis when it finds at least prima facie proof that the wastewater or material
involved presents an immediate threat to life, public health, safety or welfare or to
animal or plant life. . . .
. . .
Ex parte cease and desist orders are permitted by law and regulations in situations like
that here presented precisely because stopping continuous discharge of pollutive and
untreated effluents into the rivers and other inland waters of the Philippines cannot be
made to wait until protracted litigation over the ultimate correctness or propriety of
such orders has run its full course, including multiple and sequential appeals such as
those which Solar has taken, which of course may take several years. The relevant
pollution control statute and implementing regulations were enacted and promulgated
in the exercise of that pervasive, sovereign power to protect the safety, health, and
general welfare and comfort of the public, as well as the protection of plant and
animal life, commonly designated as the police power. It is a constitutional
commonplace that the ordinary requirements of procedural due process yield to the
necessities of protecting vital public interests like those here involved, through the
exercise of police power. . . .
[32]

In Laguna Lake Development Authority vs. Court of Appeals,
[33]
we also pronounced
that:
The matter of determining whether there ispollution of the environment that
requires control, if not prohibition, of the operation of a business establishment is
essentially addressed to the Environmental Management Bureau (EMB) of the DENR
which, by virtue of Section 16 of Executive Order No. 192, series of 1987 has
assumed the powers and functions of the defunct National Pollution Control
Commission created under Republic Act No. 3931. Under said Executive Order, a
Pollution Adjudication Board (PAB) under the Office of the DENR Secretary now
assumes the powers and functions of the National Pollution Control Commission with
respect to adjudication of pollution cases.
As a general rule, the adjudication of pollution cases generally pertains to the
Pollution Adjudication Board (PAB), except in cases where the special law provides
for another forum.
[34]

Clearly, the claim of petitioners that their immediate recourse to the
regular courts is justified because the DENR is powerless to grant them
proper relief is without basis.
The Court of Appeals correctly found that the petitioners failed to exhaust
administrative remedies before going to court which renders their complaint
dismissible on the ground of lack of cause of action.
WHEREFORE, the petition is denied for lack of merit.
SO ORDERED.

G.R. No. 95279 July 25, 1991
ESTATE OF GREGORIA FRANCISCO, herein represented by SILVESTRE F. TAN,
Administrator, petitioner,
vs.
HON. COURT OF APPEALS, HON. SALVADOR A. MEMORACION, in his capacity as Presiding
Judge of the Regional Trial Court of Isabela, Basilan Province, Branch 2, MUNICIPALITY OF
ISABELA, Basilan Province, herein represented by BENJAMIN VALENCIA, in his capacity as
Municipal Mayor, Isabela, Basilan Province, ROGELIO L. IGOT, FELICISIMO PIOQUINTO,
DANIEL PADINAS, ANTONIO CABANGON, FELIX ROXAS, BENJAMIN FERRER, GREGORIO
TABADA, EFREN DELOS REYES, FLORENCIO HUGO, JESUS FRANCISCO, ALFREDO
TUBILAG, PABLO ANDRES, respondents.
Bienvenido G. Martin for petitioner.
Laurencio Saavedra for private respondents.

MELENCIO-HERRERA, J .:p
Litigated herein is a quonset building situated in Port Area, Strong Boulevard, Isabela, Basilan,
which was ordered demolished by respondent Municipal Mayor, Benjamin Valencia. Respondent
municipal employees implemented the demolition, for which reason they are also impleaded.
The quonset was constructed by the American Liberation Forces in 1944. It was purchased in 1946
by Gregoria Francisco, who died in 1976. It stands on a lot owned by the Philippine Ports Authority
and faces the municipal wharf. By virtue of Proclamation No. 83 issued by President Elpidio Quirino,
said land was declared for the exclusive use of port facilities.
On 10 January 1989, the Philippine Ports Authority (Port of Zamboanga) issued to Tan Gin San,
surviving spouse of Gregoria Francisco, a permit to occupy the lot where the building stands for a
period of one (1) year, to expire on 31 December 1989. The permittee was using the quonset for the
storage of copra.
On 8 May 1989, Respondent Mayor, through respondent Municipal Action Officer, notified Tan Gin
San by mail to remove or relocate its quonset building, citing Zoning Ordinance No. 147 of the
municipality; noting its antiquated and dilapidated structure; and. stressing the "clean-up campaign
on illegal squatters and unsanitary surroundings along Strong Boulevard." This was followed by
another letter of 19 May 1989 of the same tenor.
Since the notifications remained unheeded by petitioner, Respondent Mayor ordered the demolition
on 24 May 1989.
Aggrieved, petitioner sought a Writ of Prohibition with Injunction and Damages before the Regional
Trial Court of Basilan, Branch 2 (docketed as S.P. No. 4).
On 7 August 1989, the Trial Court
1
denied the Writ of Prohibition and upheld the power of respondent
Mayor to order the demolition without judicial authority, adverting to Zoning Ordinance No. 147 of the
Municipality of Isabela, Basilan. Petitioner duly interposed an appeal.
On 6 September 1989, petitioner's quonset building was completely demolished (Rollo, p. 49). In its
place sprang shanties and nipa huts, photographs of which have been attached to petitioner's
Memorandum.
On 25 January 1990, the Court of Appeals (in CA-G.R. SP No. 18822)
2
initially reversed the Trial
Court and issued a Writ of Prohibition. It ruled that Respondent Mayor was not vested with power to order
summarily, and without any judicial proceeding, the demolition of the quonset building, which was not a
nuisance per se and that petitioner is in legal possession of the land on which the building stands by
virtue of the permit issued by the Philippine Ports Authority (Zamboanga Province). The restoration to
petitioner of the building materials removed upon demolition, and the payment to it of attorney's fees of
P10,000.00, were also ordered.
However, upon reconsideration sought by reswever, upon reconsideration sought by respondent
officials, Respondent Court
3
reversed itself on 13 June 1990 stating that "although Municipal Mayor
Valencia initially issued an order demolition without judicial process, the deficiency was remedied when
appellant (petitioners herein) filed a petition for prohibition and injunction and was heard on oral argument
after appellees (respondent officials) filed their answer." Respondent Court then quashed the Writ of
Prohibition and set aside the order of restitution and payment of attorney's fees.
Petitioner's plea for reconsideration having been denied, it is now before us seeking a reversal.
The focal issue for determination is whether or not Respondent Mayor could summarily, without
judicial process, order the demolition of petitioner's quonset building.
Respondent justify the demolition in the exercise of police power and for reasons of health, safety
and general welfare. It also relies on Ordinance No. 147 (CA Records, pp. 85-104) of the
Municipality of Isabela. For its part petitioner consistently denies to the Mayor, such power, invoking
provisions of the Local Government Code.
Ordinance No. 147, enacted on 27 December 1977, and relied upon by respondents, is entitled "An
Ordinance Establishing Comprehensive Zoning Regulations for the Municipality of Isabela . . ." It is
not disputed that the quonset building, which is being used for the storage of copra, is located
outside the zone for warehouses. It is referred to in Ordinance as a non-conforming structure, which
should be relocated. And in the event that an immediate relocation of the building can not be
accomplished, Section 16 of the Ordinance provides:
A certificate of non-conformance for all non-conforming uses shall be applied for by
the owner or agent of the property involved within twelve (12) months from the
approval of this Ordinance, otherwise the non-conforming use may be condemned or
removed at the owner's expense.
Even granting that petitioner failed to apply for a Certificate of Non-conformance, the foregoing
provision should not be interpreted as authorizing the summary removal of a non-conforming
building by the municipal government. For if it does, it must be struck down for being in
contravention of the requirements of due process, as originally held by the respondent Court.
Moreover, the enforcement and administration of the provisions of the Ordinance resides with the
Zoning Administrator (Article VII, Secs. 1 and 2, Ordinance No. 147). It is said official who may call
upon the City Fiscal to institute the necessary legal proceedings to enforce the provisions of the
Ordinance (id., Sec. 2, Ibid.). And any person aggrieved by the decision of the Zoning Administrator
regarding the enforcement of the Ordinance may appeal to the Board of Zoning Appeals (id., Sec.
7, Ibid.).
That a summary remedy can not be resorted to is further evident from the penal provisions of said
Ordinance, reading:
Any person who violates any of the provisions of this ordinance shall, upon
conviction, be punished by a fine of not less than fifty pesos (P50.00) but not more
than two hundred pesos (P200.00) or by imprisonment of not less than one (1) month
but not exceeding six (6) months, or both, at the discretion of the Court . . . (ibid.,
Sec. 11). [Emphasis ours].
Violation of a municipal ordinance neither empowers the Municipal Mayor to avail of extra-judicial
remedies. On the contrary, the Local Government Code imposes upon him the duty "to cause to be
instituted judicial proceedings in connection with the violation of ordinances" (Local Government
Code, Sec. 141 [2] [t]).
Respondents can not seek cover under the general welfare clause authorizing the abatement of
nuisances without judicial proceedings. That tenet applies to a nuisance per se or one which affects
the immediate safety of persons and property and may be summarily abated under the undefined
law of necessity (Monteverde v. Generoso, 52 Phil. 123 [1982]). The storage of copra in the quonset
building is a legitimate business. By its nature, it can not be said to be injurious to rights of property,
of health or of comfort of the community. If it be a nuisance per accidens it may be so proven in a
hearing conducted for that purpose. It is not per se a nuisance warranting its summary abatement
without judicial intervention.
The provincial governor, district engineer or district health officer is not authorized to
destroy private property consisting of dams and fishponds summarily and without any
judicial proceedings whatever under the pretense that such private property
constitutes a nuisance. A dam or a fishery constructed in navigable rivers is not a
nuisance per se. A dam or fishpond may be a nuisance per accidens where it
endangers or impairs the health or depreciates property by causing water to become
stagnant. (Monteverde v. Generoso, supra).
While the Sangguniang Bayan may provide for the abatement of a nuisance (Local Government
Code, Sec. 149 [ee]), it can not declare a particular thing as a nuisance per se and order its
condemnation. The nuisance can only be so adjudged by judicial determination.
[Municipal councils] do not have the power to find as a fact that a particular thing is a
nuisance when such thing is not a nuisance per se nor can they authorize the extra
judicial condemnation and destruction of that as a nuisance which, in its nature,
situation or use is not such. These things must be determined in the ordinary courts
of law. In the present case, . . . the ice factory of the plaintiff is not a nuisance per se.
It is a legitimate industry . . . . If it be in fact a nuisance due to the manner of its
operation, that question cannot be determined by a mere resolution of the board. The
petitioner is entitled to a fair and impartial heating before a judicial tribunal. (Iloilo
Cold Storage v. Municipal Council, 24 Phil. 47 [1913]).
Petitioner was in lawful possession of the lot and quonset building by virtue of a permit from the
Philippine Ports Authority (Port of Zamboanga) when demolition was effected. It was not squatting
on public land. Its property was not of trifling value. It was entitled to an impartial hearing before a
tribunal authorized to decide whether the quonset building did constitute a nuisance in law. There
was no compelling necessity for precipitate action. It follows then that respondent public officials of
the Municipality of Isabela, Basilan, transcended their authority in abating summarily petitioner's
quonset building. They had deprived petitioner of its property without due process of law. The fact
that petitioner filed a suit for prohibition and was subsequently heard thereon will not cure the defect,
as opined by the Court of Appeals, the demolition having been a fait accompli prior to hearing and
the authority to demolish without a judicial order being a prejudicial issue.
For the precipitate demolition, therefore, petitioner should be entitled to just compensation, the
amount of which is for the Trial Court to determine. We are not inclined to grant petitioner damages,
however, as it simply ignored the demand to remove or relocate its quonset building.
WHEREFORE, the judgment under review of respondent Court of Appeals, dated 13 June 1990, is
SET ASIDE; its original Decision, promulgated on 25 January 1990, is REINSTATED; and this case
is ordered REMANDED to the Regional Trial Court of Basilan, Branch 2, for the determination of the
just compensation due petitioner for the demolition of its quonset building.
SO ORDERED.

MARTIN PEOSO and G.R. No. 154018
ELIZABETHPEOSO,
Petitioners, Present:

YNARES-
SANTIAGO, J.,
Chairperson,
- versus - AUSTRIA-MARTINEZ,
CALLEJO, SR.,
CHICO-
NAZARIO, and
NACHURA, JJ.

MACROSMAN DONA, Promulgated:
Respondent. April 3, 2007
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x


D E C I S I O N


AUSTRIA-MARTINEZ, J .:


Before the Court is a Petition for Review on Certiorari under
Rule 45 of the Rules of Court assailing the Resolution
[ 1]
dated March
22, 2002promulgated by the Court of Appeals (CA) in CA-G.R. SP No.
69472, which dismissed the appeal before it because
Martin Peoso and his mother Elizabeth Peoso (petitioners) failed to
submit a written explanation why service of pleading was not done
personally as required under Section 11 of Rule 13 of the Rules of
Court and to pay the requisite docket fees; and, the CA
Resolution
[ 2]
dated June 3, 2002 which denied petitioners Motion for
Reconsideration.

This case originat ed from a Complaint for Abatement of
Nuisance filed with the Municipal Trial Court (MTC), Branch No.
001, San Jose, Occidental Mindoro, by Macrosman Dona (respondent)
against the petitioners, which was tried and decided under the Rule on
Summary Procedure. Respondent alleged that he is the owner of a
house and lot located at San Jose, Occidental Mindoro; that in front of
the house and lot is a barangayroad where the petitioners constructed
their house against the objections of the respondent; and that the
house of the petitioners constituted a public nuisance.

The petitioners, in their defense, contended that their house was
constructed by the late Praxido Peoso, Martins father and
Elizabeths husband, way ahead before the respondent arrived; that
their house constitutes no public nuisance; that the respondent cannot
demand a right of way; that the continued existence of their house
brings no harm to the respondent; and that the respondent is not
authorized to file the instant Complaint.

On October 1, 1997, the MTC rendered its Decision, in favor of
the petitioners and against the respondent on the ground that
respondent has no cause of action against the petitioners. It ordered
the dismissal of the complaint on the ground that the house in ques tion
was constructed on a public property which may be abated only by
the Municipal Mayor, unless it is specially injurious to a private
person; and the respondent to pay petitionersP10,000.00 by way of
attorneys fee.
[ 3]


Respondent appealed the Decision of the MTC to the RTC,
docketed as Civil Case No. R-1061.

On January 2, 2002, the RTC rendered its Decision reversing the
MTC. The RTC declared the house erected by the petitioners on a
portion of the road fronting the house of the respondent as a nuisance;
ordered the petitioners to immediately remove the said house at their
own expense; ordered the petitioners to jointly and severally pay
plaintiff-appellant the amount of P20,000.00, as and for reasonable
attorneys fees; and, ordered the petitioners to pay
respondent P5,000.00 as litigation expenses and to pay the costs of
this suit.
[ 4]


On January 21, 2002, the RTC denied the petitioners Motion for
Reconsideration.

Petitioners filed a Petition for Review with the CA. On March
22, 2002, the CA issued a Resolution dismissing the Petition, to wit:

For failure of the petitioners to include in their
petition the required explanation on why personal service
upon the respondent was not resorted to pursuant to Sec. 11,
Rule 13 of the 1997 Rules of Civil Procedure, as amended,
the herein petition is hereby DISMISSED OUTRIGHT. Strict
compliance with this rule is mandated. (Solar Team
Entertainment, Inc. v. Hon. Helen Bautista-Ricafort, et al.,
293 SCRA 661).

Moreover, payment of the required docketing and
other legal fees is short by P530.00.

SO ORDERED.
[ 5]
(emphasis in the original)


On May 16, 2002, a Motion for Reconsideration was filed by
the petitioners attaching a Certification dated April 15, 2002 from the
Postmaster that the pleading in question had been actually received by
the respondent as well as a Letter dated February 12, 2002 to the CA
Clerk of Court stating that if the docket fee is insufficient, counsel for
the petitioners shall remit the balance immediately, if any. But
on June 3, 2002, the CA issued another Resolution which states:

Petitioners motion for reconsideration is
hereby DENIED, for lack of merit. Petitioners subsequent
compliance with the RULES does not cleanse the petition of
its infirmity.

Atty. Ma. Conchita Lucero-De Mesa is hereby ordered
to RETURN the two (2) Postal Money Orders for P530.00 to
the petitioners.

SO ORDERED.
[ 6]
(emphasis in the original)

Hence, the instant Petition averring that the CA erred in
dismissing the petition on the following grounds:

A.

FAILURE OF THE PETITIONERS TO INCLUDE IN THEIR
PETITION THE REQUIRED EXPLANATION ON WHY
PERSONAL SERVICE UPON THE RESPONDENT WAS
NOT RESORTED TO PURSUANT TO SECTION 11, RULE
13, OF THE 1997 RULES OF CIVIL PROCEDURE;

B.

PAYMENT OF THE REQUIRED DOCKETING AND OTHER
LEGAL FEES IS SHORT BY P520.00.
[ 7]


The petition has merit.

Section 11, Rule 13 of the Rules of Court provides:

Sec. 11. Priorities in modes of service and filing.
Whenever practicable, the service and filing of pleadings and
other papers shall be done personally. Except with respect to
papers emanating from the court, a resort to other modes
must be accompanied by a written explanat ion why the
service or filing was not done personally. A violation of this
Rule may be cause to consider the paper as not filed.


Jurisprudence holds that the rule that a pleading must be
accompanied by a written explanation why the service or filing was
not done personally is mandatory.
[ 8]


However, in Ello v. Court of Appeals,
[ 9]
the Court defined the
circumstances when the court may exercise its discretionary power
under Section 11 of Rule 13, viz:

However, such discretionary power of the court must be
exercised properly and reasonably, taking into account the
following factors: (1) the practicability of personal service;
(2) the importance of the subject matter of the case or the
issues involved therein; and (3) the prima facie merit of the
pleading sought to be expunged for violation of Section
11. x x x
[ 10]



Considering the prima facie merit of the pleading involving the
issues whether the petitioners house is a public nuisance; whether the
subject house is constructed on an abandoned road; and whether the
alleged nuisance is specially injurious to respondent; and, considering
further the fact that the MTC and the RTC decisions are conflicting,
the CA had valid grounds to refrain from dismissing the appeal solely
on technical grounds.
[ 11]

As the Court has expounded in Aguam vs. Court of Appeals:
[ 12]


The court has the discretion to dismiss or not to dismiss an
appellant' s appeal. It is a power conferred on the court, not a
duty. The "discretion must be a sound one, to be exercised in
accordance with the tenets of justice and fair play, having in
mind the circumstances obtaining in each
case. " Technicalities, however, must be avoided. The law
abhors technicalities that impede the cause of justice. The
court' s primary duty is to render or dispense justice. "A
litigation is not a game of technicalities." "Lawsuits unlike
duels are not to be won by a rapier' s thrust. Technicality,
when it deserts its proper office as an aid to justice and
becomes its great hindrance and chief enemy, deserves scant
consideration from courts." Litigations must be decided on
their merits and not on technicality. Every party litigant must
be afforded the amplest opportunity for the pr oper and just
determination of his cause, free from the unacceptable plea of
technicalities. Thus, dismissal of appeals purely on
technical grounds is frowned upon where the policy of the
court is to encourage hearings of appeals on their merits
and the rules of procedure ought not to be applied in a
very rigid, technical sense; rules of procedure are used
only to help secure, not override substantial justice. It is
a far better and more prudent course of action for the
court to excuse a technical lapse and afford the parties a
review of the case on appeal to attain the ends of justice
rather than dispose of the case on technicality and cause a
grave injustice to the parties, giving a false impression of
speedy disposal of cases while actually resulting in more
delay, if not a miscarriage of justice.
[ 13]
(Emphasis
supplied)


In Ginete v. Court of Appeals,
[ 14]
the Court further held:

Let it be emphasized that the rules of procedure should
be viewed as mere tools designed to facilitate the attainment
of justice. Their strict and rigid application, which would
result in technicalities that tend to frustrate rather than
promote substant ial justice, must always be eschewed. Even
the Rules of Court reflect this principle. The power to
suspend or even disregard rules can be so pervasive and
compelling as to alter even that which this Court itself has
already declared to be final, as we are now constrained to do
in the instant case.

x x x x

The emerging trend in the rulings of this Court is to
afford every party litigant the amplest opportunity for the
proper and just determination of his cause, free from the
constraints of technicalities. Time and again, this Court
has consistently held that rules must not be applied rigidly
so as not to override substantial justice.
[ 15]
(Emphasis
supplied)


Rules of procedure being designed to facilitate the attainment of
justice, their rigid application resulting in technicalities that tend to
delay or frustrate rather than promote substantial justice, must always
be avoided.
[ 16]


In Philippine Amusement and Gaming Corporation
v. Angara,
[ 17]
this Court held:

While it is true that rules of procedure are intended to
promote rather than frustrate the ends of justice, and the
swift unclogging of court dockets is a laudable objective, it
nevertheless must not be met at the expense of substantial
justice. Time and again, this Court has reiterated the doctrine
that the rules of procedure are mere tools intended to
facilitate the attainment of justice, rather than frustrate it. A
strict and rigid application of the rules must always be
eschewed when it would subvert t he primary objective of the
rules, that is, to enhance fair trials and expedite
justice. Technicalities should never be used to defeat the
substantive rights of the other party. Every party-litigant
must be afforded the amplest opportunity for the proper and
just determination of his cause, free from the constraints of
technicalities. Thus, the CA should have refrained from
hastily dismissing the petition on procedural flaws.

In similar cases, the Court ordinarily remands the case
to the CA for proper disposition on the merits. However, in
the present case, considering the issues raised and the fact
that the records of the case are before us, the Court deems it
more appropriate and practical to resolve the present
controversy in order to avoid further delay.
[ 18]



Thus, in view of the foregoing jurisprudential trend to afford
every party litigant the amplest opportunity for a just determination of
his case, free from the severities of technicalities; the prima
facie merit of the pleading; and, especially considering the
conflicting rulings of the MTC and the RTC, the CA erred in
dismissing the appeal on mere technical grounds.

Furthermore, considering the peculiar circumstances of the case,
the shortage of the payment of the docketing fee cannot be used as a
ground for dismissing petitioners appeal before the CA. It is
undisputed that they and their counsel are living in a remote town and
are not aware of the exact amount of the lawful fees for petitions for
review. Hence, it is understandable why they place sheer reliance on
the Rules of Court, notably, Section 1 of Rule 42, which only specifies
the amount of P500.00 for the appeal cost i n question. Petitioners
sent P500.00 with a request from the Clerk of Court for notification of
any insufficiency which will be sent immediately if there is any. The
deficiency in payment was not at all intentional. There was a
willingness to comply should any deficiency occur, as stated in their
Letter to the CA Clerk of Court: Please acknowledge receipt of the
amount and if the amount is insufficient pursuant to Sec. 1, Rule 42 of
the Revised Rules of Court, kindly notify the undersigned and the
balance if any will be immediately sent. Thank you very much. This
clearly shows that the petitioners acted in good faith and substantially
complied with the Rules.



In Heirs of Bertuldo Hinog v. Melicor,
[ 19]
the Court held:

Time and again, the Court has held that
the Manchester rule has been modified in Sun Insurance
Office, Ltd. (SIOL) vs. Asuncion which defined the following
guidelines involving the payment of docket fees:

x x x x

Plainly, while the payment of the prescribed docket fee
is a jurisdictional requirement, even its non-payment at the
time of filing does not automatically cause the dismissal of
the case, as long as the fee is paid within the applicable
prescriptive or reglementary period, more so when the party
involved demonstrates a willingness to abide by the rules
prescribing such payment. Thus, when insufficient filing
fees were initially paid by the plaintiffs and there was no
intention to defraud the government, the Manchester rule
does not apply.
[ 20]



In fine, the CA erred in dismissing the petition for review
outright.

In light of Philippine Amusement and Gaming Corporation
v. Angara,
[ 21]
since the records of the case are not before this Court, a
remand of the case to the CA for proper disposition on the merits is
necessary, bearing in mind the judicial policy to resolve the present
controversy with all dispatch in order to avoid further delay.

WHEREFORE, the instant petition is GRANTED and the
assailed Resolutions of the Court of Appeals
are REVERSED and SET ASIDE. The Court of Appeals
is directed to REINSTATE the petition for review, docketed as CA-
G.R. SP No. 69472, for further proceedings.


No costs.

SO ORDERED.


GUILLERMO M. TELMO,
Petitioner,




- versus -




LUCIANO M. BUSTAMANTE,
Respondent.

G.R. No. 182567

Present:

YNARES-SANTIAGO, J.,
Chairperson,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA, and
PERALTA, JJ.

Promulgated:

July 13, 2009

x------------------------------------------------------------------------------------x


DECISION

NACHURA, J .:




For our consideration is a Petition
[1]
for Review on Certiorari under Rule 45
of the Rules of Court in relation to Section 27, paragraph 3 of the Ombudsman Act
of 1989 (Republic Act No. 6770). Subject of the Petition is the Decision
[2]
dated
October 13, 2005 and the Order
[3]
dated March 17, 2006 of the Office of the
Deputy Ombudsman forLuzon.

This case arose from the Verified Complaint
[4]
filed by respondent Luciano
M. Bustamante before the Office of the Deputy Ombudsman for Luzon against
petitioner Guillermo Telmo, Municipal Engineer of Naic, Cavite, Danilo Consumo,
Barangay (Brgy.) Chairman, Brgy. Halang, Naic, Cavite, and Elizalde Telmo, a
private individual.

The complaint alleged that respondent is a co-owner of a real property of
616 square meters in Brgy. Halang, Naic, Cavite, known as Lot 952-A and covered
by Transfer Certificate of Title No. T-957643 of the Register of Deeds
of Cavite. Petitioner and Elizalde Telmo (Telmos) are the owners of the two (2)
parcels of land denominated as Lot 952-B and 952-C, respectively, located at the
back of respondents lot. When his lot was transgressed by the construction of
the Noveleta-Naic-Tagaytay Road, respondent offered for sale the remaining lot to
the Telmos. The latter refused because they said they would have no use for it, the
remaining portion being covered by the roads 10-meter easement.

The complaint further alleged that, on May 8, 2005, respondent caused the
resurvey of Lot 952-A in the presence of the Telmos. The resurvey showed that
the Telmos encroached upon respondents lot. Petitioner then uttered, Hanggat
ako ang municipal engineer ng Naic, Cavite, hindi kayo makakapagtayo ng
anuman sa lupa nyo; hindi ko kayo bibigyan ng building permit.

On May 10, 2005, respondent put up concrete poles on his lot. However,
around 7:00 p.m. of the same day, the Telmos and their men allegedly destroyed
the concrete poles. The following day, respondents relatives went to Brgy.
Chairman Consumo to report the destruction of the concrete poles. Consumo told
them that he would not record the same, because he was present when the incident
occurred. Consumo never recorded the incident in the barangay blotter.

Respondent complained that he and his co-owners did not receive any
just compensation from the government when it took a portion of their
property for the construction of the Noveleta-Naic-Tagaytay Road. Worse, they
could not enjoy the use of the remaining part of their lot due to the abusive, Illegal,
and unjust acts of the Telmos and Consumo. Respondent charged the latter
criminallyfor violation of Article 312
[5]
of the Revised Penal Code and
Section 3(e)
[6]
of Republic Act No. 3019
[7]
and administratively
for violation of Section 4 (a)
[8]
, (b)
[9]
, (c)
[10]
, and (e)
[11]
of Republic Act
No. 6713.
[12]


In his Counter-Affidavit,
[13]
petitioner denied having uttered the words
attributed to him by respondent, and claimed that he only performed his official
duties in requiring an application for a building permit before any structure can be
erected on government property. He said that respondent insisted on enclosing
with barbed wire and concrete posts the lot that already belonged to the national
government, which had now been converted into a national road. He also alleged
that if he allowed the enclosures erected by the respondent, other residents would
be denied ingress to and egress from their own properties.

In his own counter-affidavit, Consumo denied collusion with petitioner in
not recording in the barangay blotter the subject incident. He explained that on
May 10, 2005 at around 5:00 p.m., he was summoned by petitioner to intercede,
because the respondent and his men were fencing the subject property. Consumo
obliged, personally saw the fence being built, and observed that even the trucks
owned by petitioner were enclosed therein. When he asked respondent if he had
the necessary permit and the properbarangay clearance to do so, respondents
lawyer, Atty. San Gaspar, replied that there was no need for the permit and
clearance since respondent was just fencing his own property. Thus, Consumo
could not prevent the ongoing fencing, but told respondent and company to wait
for petitioner to decide the matter.

Consumo further alleged that after putting up the fence, respondent and his
companions left without waiting for the arrival of petitioner. When petitioner
arrived, he explained to the people present that the property enclosed by
respondent is owned by the government and that no one is allowed to construct any
fence without a permit from him, as the Municipal Engineer, or from any building
official of the local government of Naic, Cavite. Consumo said that the residents
affected by the fence constructed by respondent were the ones who pulled out the
concrete posts in order to provide access to the national road. These residents
included the petitioner, whose trucks used for delivering sand and hollow blocks
were enclosed and also denied access.

In his Counter-Affidavit,
[14]
Elizalde Telmo denied having encroached,
occupied or taken possession of respondents property. He claimed that, on May
10, 2005, he was merely an onlooker to the altercation between petitioner and
respondent. He said that petitioner, his brother, insisted that respondent could not
enclose the property in question unless the latter obtains a building permit from the
Office of the Municipal Engineer/Building Official, since it appeared that the
subject property was no longer a property of respondent but was converted into
government property by virtue of the 30-meter road set-back imposed by the
Zoning Ordinance of the Municipality of Naic, Cavite. Elizalde Telmo stated that
he did not offer any resistance to the fencing of the property in question. He
observed, though, that when they learned that petitioner was arriving at the place,
respondent and his companions just left the vicinity.

Later, petitioner and respondent filed their respective position
papers
[15]
upon the directive of the Graft Investigating and Prosecuting
Officer. Their position papers reiterated the allegations made in their respective
affidavits earlier submitted.

In the Decision
[16]
dated October 13, 2005, the Office of the Deputy
Ombudsman for Luzon found petitioner and Danilo Consumo administratively
liable, but dismissed the charge against Elizalde Telmo for lack of jurisdiction over
his person, he being a private individual. The dispositive portion of the Decision
states

WHEREFORE, premises considered, the undersigned
investigator respectfully recommends the following, to wit:

(1) That the administrative complaint against respondent Elizalde
Telmo be DISMISSED for lack of jurisdiction;

(2) That respondent Guillermo Telmo be meted the PENALTY OF
FINE EQUIVALENT TO SIX (6) MONTHS SALARY for
violation of Section 4 of Republic Act No. 6713; and

(3) That respondent Danilo Consumo be meted the PENALTY OF
FINE EQUIVALENT TO THREE (3) MONTHS
HONORARIA for violation of Section 4 of Republic Act No.
6713.

SO DECIDED.
[17]



Petitioner filed a Motion for Reconsideration,
[18]
wherein he elaborated that
he just performed his official duties when he summarily removed the concrete
posts erected by respondent to enclose the property.

In the Order
[19]
dated March 17, 2006, the Office of the Deputy Ombudsman
for Luzon denied the Motion for Reconsideration for lack of merit.

Hence, this petition anchored on the following grounds:

A. THE HONORABLE DEPUTY OMBUDSMAN FOR
LUZON SERIOUSLY ERRED WHEN HE DECLARED THAT
THERE WAS NO VALID TAKING OF RESPONDENTSLOT BY
MEANS OF EXPROPRIATION.

B. THE HONORABLE DEPUTY OMBUDSMAN FOR
LUZON SERIOUSLY ERRED WHEN HE DECLARED THAT
PETITIONER SHOULD BE AUTHORIZED BY THE MUNICIPAL
MAYOR OR BY THE COURT TO ABATE PUBLIC NUISANCE OR
NUISANCE PER SE.

C. THE HONORABLE DEPUTY OMBUDSMAN FOR
LUZON ERRED WHEN HE METED THE PENALTY OF FINE
EQUIVALENT TO SIX (6) MONTHS SALARY FOR VIOLATION
OF SECTION 4 OF REPUBLIC ACT NO. 6713.
[20]


In essence, petitioner contends that the property claimed and enclosed with
concrete posts by respondent was validly taken by the National Government
through its power of eminent domain, pursuant to Executive Order No. 113, as
amended by Executive Order No. 253, creating the Noveleta-Naic-Tagaytay
Road. In this context, petitioner contends that the concrete posts erected by
respondent were a public nuisance under Article 694 (4)
[21]
of the Civil Code, more
particularly a nuisance per se, which may be summarily abated under Article 699
(3)
[22]
of the same Code. Petitioner says that as the Municipal Engineer, he is also
the Building Official of Naic, Cavite; and thus, it was well within his authority,
pursuant to Section 214, paragraph two (2) of the National Building Code, to order
the removal of the concrete posts. Petitioner likewise claims that Section 23 of
Revised Philippine Highway Act (Presidential Decree No. 17)
[23]
mandated him to
remove respondents concrete posts. Petitioner concludes that since he merely
performed his official duties in removing the concrete posts erected by petitioner
from the property, which is already owned by the government, he must be absolved
of any administrative liability.

Instead of filing his comment on the petition, respondent manifested through
counsel that he is no longer interested in pursuing this case, submitting therewith
his Affidavit of Desistance
[24]
dated December 5, 2007. Respondent alleged in the
affidavit that the administrative charges he lodged against petitioner were brought
about by a misunderstanding between them, which differences have already been
settled. Consequently, this case should now be dismissed.

We disagree.

The desistance of the complainant does not necessarily result in the
dismissal of the administrative complaint because the Court attaches no persuasive
value to a desistance, especially when executed as an afterthought.
[25]
It should be
remembered that the issue in an administrative case is not whether the complaint
states a cause of action against the respondent, but whether the public officials
have breached the norms and standards of the public service.
[26]
Considering that
petitioner admitted in his pleadings that he summarily removed the concrete posts
erected by respondent, allegedly within the parameters of his authority as
Municipal Engineer of Naic, Cavite, it is only proper that this case be decided on
its merits rather than on the basis of the desistance of respondent.

It cannot be denied that respondents property was taken by the National
Government thru the Department of Public Works and Highways when it
constructed theNoveleta-Naic-Tagaytay Road. What is not clear from the records
of this case is whether respondents property was taken as part of the national road
itself or only as part of the right-of-way easement therefor. We observe that the re-
survey plan
[27]
of his property attached by respondent to his complaint and the
survey plan
[28]
of the Noveleta-Naic-Tagaytay Road submitted by petitioner appear
to be different. Nevertheless, it is evident from the sketch plans that respondent
could not enclose his property because it is now being used by the National
Government. Therefore, whatever cause of action respondent may have in his
claim for just compensation for the taking of his property, the same should be
lodged against the National Government.

While it is settled that respondent does not have the legal right to enclose the
property, we should now determine whether petitioner indeed performed his
official functions properly.

First. Petitioner claims that his act of summarily removing respondents
concrete posts was authorized under the National Building Code (Presidential
Decree No. 1096). The provision he cites correctly pertains to Section 215, which
reads

Sec. 215. Abatement of Dangerous Buildings.When any
building or structure is found or declared to be dangerous or ruinous, the
Building Official shall order its repair, vacation or demolition depending
upon the decree of danger to life, health, or safety. This is without
prejudice to further action that may be taken under the provisions of
Articles 482 and 694 to 707 of the Civil Code of the Philippines.

To better understand this provision, we refer to Section 214 of the same law,
which defines what are dangerous and ruinous buildings or structures susceptible
of abatement. It provides

Sec. 214. Dangerous and Ruinous Buildings or
Structures. Dangerous buildings are those which are herein declared as
such or are structurally unsafe or not provided with safe egress, or which
constitute a fire hazard, or are otherwise dangerous to human life, or
which in relation to existing use, constitute a hazard to safety or health or
public welfare because of inadequate maintenance, dilapidation,
obsolescence, or abandonment, or which otherwise contribute to the
pollution of the site or the community to an intolerable degree.


A careful reading of the foregoing provisions would readily show that they
do not apply to the respondents situation. Nowhere was it shown that the concrete
posts put up by respondent in what he believed was his and his co-owners
property were ever declared dangerous or ruinous, such that they can be summarily
demolished by petitioner.

What is more, it appears that the concrete posts do not even fall within the
scope of the provisions of the National Building Code. The Code does not
expressly define the word building. However, we find helpful the dictionary
definition of the word building, viz:

[A] constructed edifice designed usually covered by a roof and
more or less completely enclosed by walls, and serving as a dwelling,
storehouse, factory, shelter for animals, or other useful structure
distinguished from structures not designed for occupancy (as fences or
monuments) and from structures not intended for use in one place (as
boats or trailers) even though subject to occupancy.
[29]



The provisions of the National Building Code would confirm that building
as used therein conforms to this definition. Thus, applying the statutory
construction principle of ejusdem generic,
[30]
the word structure should be
construed in the context of the definition of the word building. The concrete
posts put up by respondent on the property are not properly covered by the
definition of the word building nor is it embraced in the corresponding
interpretation of the word structure.

Second. Petitioner contends that respondents concrete posts were in the
nature of a nuisance per se, which may be the subject of summary
abatement sans any judicial proceedings. Again, we disagree.

A nuisance per se is that which affects the immediate safety of persons and
property and may be summarily abated under the undefined law of
necessity.
[31]
Evidently, the concrete posts summarily removed by petitioner did
not at all pose a hazard to the safety of persons and properties, which would have
necessitated immediate and summary abatement. What they did, at most, was to
pose an inconvenience to the public by blocking the free passage of people to and
from the national road.

Third. Petitioner likewise maintains that his authority to perform the
assailed official act sprang from Section 23 of the Revised Philippine Highway
Act. He posits that this provision is particularly implemented by Department
Order No. 52,
[32]
Series of 2003 of the Department of Public Works and Highways
for the Removal of Obstructions and Prohibited Uses within the Right-of-Way of
National Roads.

Department Order No. 52 directs all District Engineers to immediately
remove or cause the removal of all obstructions and prohibited uses within the
right-of-way of all national roads in their respective jurisdictions. These
obstructions and prohibited uses include, among others, all kinds of private,
temporary and permanent structures, such as buildings, houses, shanties, stores,
shops, stalls, sheds, posts, canopies, billboards, signages, advertisements, fences,
walls, railings, basketball courts, garbage receptacles, and the like. The
Department Order requires the District Engineers to issue notices to the concerned
persons to remove the obstructions and prohibited uses within the right-of-way,
and shall follow through prompt compliance with these notices and full
implementation of the Order. It further provides that appropriate sanctions will be
taken against those who fail to comply with its provisions.

Gauging the action of petitioner based on the guidelines set by Department
Order No. 52, from which he claims his authority, we cannot but conclude that
petitioner went beyond the scope of his official power because it is the concerned
District Engineer of the Department of Public Works and Highways who should
have ordered respondent to remove the concrete posts. The petitioner failed to
show that he was duly authorized by the District Engineer to implement the
Department Order in Naic, Cavite. More importantly, even assuming that
petitioner had been duly authorized to order the removal of the concrete posts of
respondent, he failed to prove that he issued the required notice to respondent to
remove the said structures before he did the removal himself. Note that petitioner,
in fact, admitted in his pleadings that he summarily removed the said posts.

The Revised Philippine Highway Act and Department Order No. 52 do not
expressly provide for the administrative sanction to be taken against public
officials violating their provisions. Hence, we must refer to the Uniform Rules on
Administrative Cases in the Civil Service. We believe that the administrative
offense committed by petitioner through the questioned act was only Discourtesy
in the Course of Official Duties, which is a light offense under Rule IV, Section 52
of the said Rules. The penalties imposable for such an offense are a reprimand for
the first offense, a suspension from 1 day to 30 days for the second offense, and
dismissal from public service for the third offense. Since this appears to be
petitioners first offense, his action warrants only a REPRIMAND.

WHEREFORE, the Decision dated October 13, 2005 and the Order dated
March 17, 2006 of the Office of the Deputy Ombudsman for Luzon finding
petitioner Guillermo M. Telmo, Municipal Engineer of Naic, Cavite,
administratively culpable for violation of Section 4 of Republic Act No. 6713,
imposing upon him the penalty of fine equivalent to his six 6-month salary, must
be MODIFIED. Guillermo M. Telmo is instead found administratively guilty
of DISCOURTESY IN THE COURSE OF OFFICIAL DUTIESand is
hereby REPRIMANDED. Costs against petitioner.

SO ORDERED.

G.R. Nos. 159017-18 March 9, 2011
PAULINO S. ASILO, JR., Petitioner,
vs.
THE PEOPLE OF THE PHILIPPINES and Spouses VISITACION AND CESAR C.
BOMBASI, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 159059
VICTORIA BUETA VDA. DE COMENDADOR, IN REPRESENTATION OF DEMETRIO T.
COMENDADOR,Petitioner,
vs.
VISITACION C. BOMBASI AND CESAR C. BOMBASI, Respondents.
D E C I S I O N
PEREZ, J .:
At bench are appeals by certiorari
1
from the Decision
2
of the Fourth Division of the Sandiganbayan;
(1) finding Demetrio T. Comendador
3
(Mayor Comendador) and Paulino S. Asilo, Jr.
4
guilty beyond
reasonable doubt of violation of Sec. 3(e) of Republic Act No. 3019; (2) dismissing the cases against
accused Alberto S. Angeles;
5
(3) ordering the defendants Municipality of Nagcarlan, Laguna,
Demetrio T. Comendador and Paulino S. Asilo, Jr. to pay the plaintiffs now respondents Visitacion C.
Bombasi (Visitacion) and Cesar C. Bombasi damages; and (4) dismissing the cases against the
spouses Alida and Teddy Coroza
6
and Benita and Isagani Coronado.
7

The factual antecedents of the case are:
On 15 March 1978, Private Respondent Visitacions late mother Marciana Vda. De Coronado (Vda.
De Coronado) and the Municipality of Nagcarlan, Laguna (represented by the then Municipal Mayor
Crisostomo P. Manalang) entered into a lease contract whereby the Municipality allowed the use
and enjoyment of property comprising of a lot and a store located at the corner of Coronado and E.
Fernandez Sts. at Poblacion, Nagcarlan, Laguna, in favor of the respondents mother for a period of
twenty (20) years beginning on 15 March 1978 until 15 March 1998, extendible for another 20
years.
8

The lease contract provided that the late Vda. De Coronado could build a firewall on her rented
property which must be at least as high as the store; and in case of modification of the public market,
she or her heir/s would be given preferential rights.
Visitacion took over the store when her mother died sometime in 1984.
9
From then on up to January
1993, Visitacion secured the yearly Mayors permits.
10

Sometime in 1986, a fire razed the public market of Nagcarlan. Upon Visitacions request for
inspection on 15 May 1986, District Engineer Marcelino B. Gorospe (Engineer Gorospe) of the then
Ministry of Public Works and Highways,
11
Regional Office No. IV-A, found that the store of Visitacion
remained intact and stood strong. This finding of Engineer Gorospe was contested by the
Municipality of Nagcarlan.
The store of Visitacion continued to operate after the fire until 15 October 1993.
On 1 September 1993, Visitacion received a letter
12
from Mayor Comendador directing her to
demolish her store within five (5) days from notice. Attached to the letter were copies of
Sangguniang Bayan Resolution No. 156
13
dated 30 August 1993 and a Memorandum issued by Asst.
Provincial Prosecutor Marianito Sasondoncillo of Laguna.
The relevant provisos of the Resolution No. 156 states that:
NOW THEREFORE, be it RESOLVED, as it hereby resolved to authorize Hon. Demetrio T.
Comendador to enforce and order the Coronados to demolish the building constructed on the space
previously rented to them in order to give way for the construction of a new municipal market
building.
RESOLVED FURTHER, to authorize Demetrio T. Comendador, Honorable Mayor of Nagcarlan to
file an Unlawful Detainer Case with damages for the expenses incurred due to the delay in the
completion of the project if the Coronados continuously resists the order.
On 3 September 1993, Visitacion wrote a reply letter to Mayor Comendador saying that: (1) the
lease contract was still existing and legally binding; (2) she was willing to vacate the store as long as
same place and area would be given to her in the new public market; and (3) in case her proposals
are not acceptable to Mayor Comendador, for the latter to just file an unlawful detainer case against
her pursuant to Sangguniang Bayan Resolution No. 156. Pertinent portions of the letter read:
x x x With all due respect to the resolution of the Municipal Council and the opinion rendered by the
Laguna Asst. Provincial Prosecutor, it is my considered view, however, arrived at after consultation
with my legal counsel, that our existing lease contract is still legally binding and in full force and
effect. Lest I appear to be defiant, let me reiterate to you and the council that we are willing to vacate
the said building provided that a new contract is executed granting to us the same space or lot and
the same area. I believe that our proposal is most reasonable and fair under the circumstance. If you
are not amenable to the said proposal, I concur with the position taken by the Council for you to file
the appropriate action in court for unlawful detainer to enable our court to finally thresh out our
differences.
14
1avvphi1
On 15 September 1993, Asst. Provincial Prosecutor Florencio Buyser sent a letter to Visitacion
ordering her to vacate the portion of the public market she was occupying within 15 days from her
receipt of the letter; else, a court action will be filed against her.
On 11 October 1993, the Sangguniang Bayan of Nagcarlan, Laguna issued Resolution No. 183
authorizing Mayor Comendador to demolish the store being occupied by Visitacion using legal
means. The significant portion of the Resolution reads:
Kung kaya ang Sangguniang Bayan ay buong pagkakaisang IPINASIYA: Ang pagbibigay
kapangyarihan kay Kgg. Demetrio T. Comendador na ipagiba ang anumang istrakturang nagiging
sagabal sa mabilis at maayos na pagbabangon ng pamilihang bayan.
15

On 14 October 1993, Municipal Administrator Paulino S. Asilo, Jr. (Asilo) also sent a letter
16
to
Visitacion informing her of the impending demolition of her store the next day. Within the same day,
Visitacion wrote a reply letter
17
to Asilo, alleging that there is no legal right to demolish the store in
the absence of a court order and that the Resolutions did not sanction the demolition of her store but
only the filing of an appropriate unlawful detainer case against her. She further replied that if the
demolition will take place, appropriate administrative, criminal and civil actions will be filed against
Mayor Comendador, Asilo and all persons who will take part in the demolition.
On 15 October 1993, Mayor Comendador relying on the strength of Sangguniang Bayan Resolution
Nos. 183 and 156 authorized the demolition of the store with Asilo and Angeles supervising the
work.
Engineer Winston Cabrega (Engineer Cabrega), a licensed civil engineer, estimated the cost of the
demolished property as amounting to P437,900.00
18

On 19 August 1994, Visitacion, together with her husband Cesar Bombasi (Spouses Bombasi) filed
with the Regional Trial Court of San Pablo City, Laguna a Civil Case
19
for damages with preliminary
injunction against the Municipality of Nagcarlan, Laguna, Mayor Demetrio T. Comendador, Paulino
S. Asilo, Jr., and Alberto S. Angeles. The complaint was soon after amended to include the Spouses
Benita and Isagani Coronado and Spouses Alida and Teddy Coroza as formal defendants because
they were then the occupants of the contested area.
The spouses prayed for the following disposition:
1. RESTRAINING or ENJOINING defendant Municipality and defendant Municipal Mayor
from leasing the premises subject of lease Annex "A" hereof, part of which is now occupied
by PNP Outpost and by the Municipal Collectors Office, and the equivalent adjacent area
thereof, and to cause the removal of said stalls;
2. UPHOLDING the right of plaintiffs to occupy the equivalent corner area of the leased
areas being now assigned to other persons by defendants Municipality and/or by defendant
Municipal Mayor, and to allow plaintiffs to construct their stalls thereon;
3. MAKING the injunction permanent, after trial;
4. ORDERING defendants to pay plaintiffs, jointly and severally, the following
(a) P437,900.00 for loss of building/store and other items therein;
(b) P200,000.00 for exemplary damages;
(c) P200,000.00 for moral damages;
(d) P30,.00 for attorneys fees and P700.00 for every attendance of counsel in court.
5. GRANTING further reliefs upon plaintiffs as justice and equity may warrant in the
premises.
20

Spouses Bombasi, thereafter, filed a criminal complaint
21
against Mayor Comendador, Asilo and
Angeles for violation of Sec. 3(e) of Republic Act No. 3019 otherwise known as the "Anti-Graft and
Corrupt Practices Act" before the Office of the Ombudsman. On 22 February 1996, an
Information
22
against Mayor Comendador, Asilo and Angeles was filed, which reads:
That on or about October 15, 1993, at Nagcarlan, Laguna, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, all public officers, accused Demetrio T.
Comendador, being then the Municipal Mayor, accused Paulino S. Asilo, Jr. being then the
Municipal Administrator and accused Alberto S. Angeles being then the Municipal Planning and
Development Coordinator, all of the Municipality of Nagcarlan, Laguna, committing the crime herein
charged in relation to, while in the performance and taking advantage of their official functions,
conspiring and confederating with each other, and with evident bad faith, manifest partiality or
through gross inexcusable negligence, did then and there willfully, unlawfully, criminally cause the
demolition of a public market stall leased by the municipal government in favor of one Visitacion
Coronado-Bombasi without legal or justifiable ground therefor, thus, causing undue injury to the
latter in the amount of PESOS: FOUR HUNDRED THIRTY SEVEN THOUSAND AND NINE
HUNDRED ONLY (P437,900.00).
Upon their arraignments, all the accused entered their separate pleas of "Not Guilty."
On 4 March 1997, the Sandiganbayan promulgated a Resolution ordering the consolidation of Civil
Case No. SP-4064 (94)
23
with Criminal Case No. 23267 pending before the Third Division pursuant
to Section 4, Presidential Decree No. 1606, which pertinently reads:
Any provision of law or Rules of Court to the contrary notwithstanding, the criminal action and the
corresponding civil action for the recovery of civil liability arising from the offense charged shall at all
times be simultaneously instituted with, and jointly determined in the same proceeding by the
Sandiganbayan or the appropriate courts, the filing of the criminal action being deemed to
necessarily carry with it the filing of the civil action, and no right to reserve the filing of such civil
action separately from the criminal action shall be recognized; Provided, however, that where the
civil action had heretofore been filed separately but judgment therein has not yet been rendered, and
the criminal case is hereafter filed with the Sandiganbayan or the appropriate court, said civil action
shall be transferred to the Sandiganbayan or the appropriate court as the case may be, for
consolidation and joint determination with the criminal action, otherwise the separate civil action shall
be deemed abandoned.
24

During the pendency of the case, Alberto S. Angeles died on 16 November 1997. Accordingly, the
counsel of Angeles filed a motion to drop accused Angeles. On 22 September 1999, the Third
Division of Sandiganbayan issued an Order
25
DISMISSING the case against Angeles. The germane
portion of the Order reads:
In view of the submission of the death certificate of accused/defendant Alberto S. Angeles, and there
being no objection on the part of the Public Prosecutor, cases against deceased accused/defendant
Angeles only, are hereby DISMISSED.
The death of Mayor Comendador followed on 17 September 2002. As a result, the counsel of the
late Mayor filed on 3 March 2003 a Manifestation before the Sandiganbayan informing the court of
the fact of Mayor Comendadors death.
On 28 April 2003, the Sandiganbayan rendered a decision, the dispositive portion of which reads as
follows:
WHEREFORE, premises considered, judgment is hereby rendered as follows:
In Criminal Case No. 23267, the court finds accused Demetrio T. Comendador and Paulino S. Asilo,
Jr. guilty beyond reasonable doubt of violation of Sec. 3(e) of Republic Act. No. 3019 as amended,
and in the absence of aggravating and mitigating circumstances, applying the Indeterminate
Sentence Law, said accused are sentenced to suffer the indeterminate penalty of 6 years and 2
months imprisonment as minimum to 10 years and 1 day as maximum.
The order of the court dated September 22, 1999 dismissing the cases against the accused Alberto
S. Angeles, who died on November 16, 1997 is hereby reiterated.
In Civil Case No. 4064, defendants Municipality of Nagcarlan, Laguna, Demetrio T. Comendador
and Paulino S. Asilo, Jr. are hereby ordered jointly and severally to pay plaintiff P437,900.00 as
actual damages for the destruction of the store; P100,000.00 as moral damages; P30,000.00 as
attorneys fees, and to pay the cost of the suit. The prayer for exemplary damages is denied as the
court found no aggravating circumstances in the commission of the crime.
In view of this courts finding that the defendant spouses Alida and Teddy Coroza are lawful
occupants of the subject market stalls from which they cannot be validly ejected without just cause,
the complaint against them is dismissed. The complaint against defendant spouses Benita and
Isagani Coronado is likewise dismissed, it appearing that they are similarly situated as the spouses
Coroza. Meanwhile, plaintiff Visitacion Bombasi is given the option to accept market space being
given to her by the municipality, subject to her payment of the appropriate rental and permit fees.
The prayer for injunctive relief is denied, the same having become moot and academic.
The compulsory counterclaim of defendant Comendador is likewise denied for lack of merit.
26

Within the same day, Asilo, through his counsel, filed a Motion for Reconsideration
27
of the Decision
alleging that there was only an error of judgment when he complied with and implemented the order
of his superior, Mayor Comendador. He likewise alleged that there is no liability when a public officer
commits in good faith an error of judgment. The Sandiganbayan, on its Resolution
28
dated 21 July
2003 denied the Motion for Reconsideration on the ground that good faith cannot be argued to
support his cause in the face of the courts finding that bad faith attended the commission of the
offense charged. The Court further explained that the invocation of compliance with an order of a
superior is of no moment for the "demolition [order] cannot be described as having the semblance of
legality inasmuch as it was issued without the authority and therefore the same was patently
illegal."
29

The counsel for the late Mayor also filed its Motion for Reconsideration
30
on 12 May 2003 alleging
that the death of the late Mayor had totally extinguished both his criminal and civil liability. The
Sandiganbayan on its Resolution
31
granted the Motion insofar as the extinction of the criminal liability
is concerned and denied the extinction of the civil liability holding that the civil action is an
independent civil action.
Hence, these Petitions for Review on Certiorari.
32

Petitioner Asilo argues that in order to sustain conviction under Sec. 3(e) of Republic Act No. 3019
or "The Anti-Graft and Corrupt Practices Act," the public officer must have acted with manifest
partiality, evident bad faith or gross negligence. He also contended that he and his co-accused acted
in good faith in the demolition of the market and, thereby, no liability was incurred.
On the other hand, Petitioner Victoria argues that the death of Mayor Comendador prior to the
promulgation of the decision extinguished NOT ONLY Mayor Comendadors criminal liability but also
his civil liability. She also asserted good faith on the part of the accused public officials when they
performed the demolition of the market stall. Lastly, she contended that assuming arguendo that
there was indeed liability on the part of the accused public officials, the actual amount of damages
being claimed by the Spouses Bombasi has no basis and was not duly substantiated.
Liability of the accused public officials
under Republic Act No. 3019
Section 3(e) of Republic Act No. 3019 provides:
In addition to acts or omissions of public officers already penalized by existing law, the following
shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:
x x x x
(e) Causing any undue injury to any party, including the Government, or giving any private party any
unwarranted benefits, advantage or preference in the discharge of his official, administrative or
judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This
provision shall apply to officers and employees of offices or government corporations charged with
the grant of licenses or permits or other concessions.
The elements of the offense are as follows: (1) that the accused are public officers or private
persons charged in conspiracy with them; (2) that said public officers commit the prohibited acts
during the performance of their official duties or in relation to their public positions; (3) that they
caused undue injury to any party, whether the Government or a private party; (4) OR that such injury
is caused by giving unwarranted benefits, advantage or preference to the other party; and (5) that
the public officers have acted with manifest partiality, evident bad faith or gross inexcusable
negligence.
33

We sustain the Sandiganbayan in its finding of criminal and civil liabilities against petitioner Asilo and
petitioner Mayor Comendador as here represented by his widow Victoria Bueta.
We agree with the Sandiganbayan that it is undisputable that the first two requisites of the criminal
offense were present at the time of the commission of the complained acts and that, as to the
remaining elements, there is sufficient amount of evidence to establish that there was an undue
injury suffered on the part of the Spouses Bombasi and that the public officials concerned acted with
evident bad faith when they performed the demolition of the market stall.
Causing undue injury to any party, including the government, could only mean actual injury or
damage which must be established by evidence.
34

In jurisprudence, "undue injury" is consistently interpreted as "actual." Undue has been defined as
"more than necessary, not proper, [or] illegal;" and injury as "any wrong or damage done to another,
either in his person, rights, reputation or property [that is, the] invasion of any legally protected
interest of another." Actual damage, in the context of these definitions, is akin to that in civil law.
35

It is evident from the records, as correctly observed by the Sandiganbayan, that Asilo and Mayor
Comendador as accused below did not deny that there was indeed damage caused the Spouses
Bombasi on account of the demolition. We affirm the finding that:
xxx. Clearly, the demolition of plaintiffs store was carried out without a court order, and
notwithstanding a restraining order which the plaintiff was able to obtain. The demolition was done in
the exercise of official duties which apparently was attended by evident bad faith, manifest partiality
or gross inexcusable negligence as there is nothing in the two (2) resolutions which gave the herein
accused the authority to demolish plaintiffs store.
"Evident bad faith" connotes not only bad judgment but also palpably and patently fraudulent and
dishonest purpose to do moral obliquity or conscious wrongdoing for some perverse motive or ill
will.
36
[It] contemplates a state of mind affirmatively operating with furtive design or with some motive
or self-interest or ill will or for ulterior purposes.
37

It is quite evident in the case at bar that the accused public officials committed bad faith in
performing the demolition.
First, there can be no merit in the contention that respondents structure is a public nuisance. The
abatement of a nuisance without judicial proceedings is possible if it is nuisance per se.
38
Nuisance
per se is that which is nuisance at all times and under any circumstance, regardless of location and
surroundings.
39
In this case, the market stall cannot be considered as a nuisance per se because as
found out by the Court, the buildings had not been affected by the 1986 fire. This finding was
certified to by Supervising Civil Engineer Wilfredo A. Sambrano of the Laguna District Engineer
Office.
40
To quote:
An inspection has been made on the building (a commercial establishment) cited above and found
out the following:
1. It is a two-storey building, sketch of which is attached.
2. It is located within the market site.
3. The building has not been affected by the recent fire.
4. The concrete wall[s] does not even show signs of being exposed to fire.
41

Second, the Sangguniang Bayan resolutions are not enough to justify demolition. Unlike its
predecessor law,
42
the present Local Government Code
43
does not expressly provide for the
abatement of nuisance.
44
And even assuming that the power to abate nuisance is provided for by the
present code, the accused public officials were under the facts of this case, still devoid of any power
to demolish the store. A closer look at the contested resolutions reveals that Mayor Comendador
was only authorized to file an unlawful detainer case in case of resistance to obey the order or to
demolish the building using legal means. Clearly, the act of demolition without legal order in this
case was not among those provided by the resolutions, as indeed, it is a legally impossible
provision.
Furthermore, the Municipality of Nagcarlan, Laguna, as represented by the then Mayor
Comendador, was placed in estoppel after it granted yearly business permits
45
in favor of the
Spouses Bombasi. Art. 1431 of the New Civil Code provides that, through estoppel, an admission or
representation is rendered conclusive upon the person making it, and cannot be denied or disproved
as against the person relying thereon. The representation made by the municipality that the Spouses
Bombasi had the right to continuously operate its store binds the municipality. It is utterly unjust for
the Municipality to receive the benefits of the store operation and later on claim the illegality of the
business.
The bad faith of the petitioners completes the elements of the criminal offense of violation of Sec.
3(e) of Republic Act No. 3019. The same bad faith serves as the source of the civil liability of Asilo,
Angeles, and Mayor Comendador.
It must be noted that when Angeles died on 16 November 1997, a motion to drop him as an accused
was filed by his counsel with no objection on the part of the prosecution. The Sandiganbayan acted
favorably on the motion and issued an Order dismissing all the cases filed against Angeles. On the
other hand, when Mayor Comendador died and an adverse decision was rendered against him
which resulted in the filing of a motion for reconsideration by Mayor Comendadors counsel, the
prosecution opposed the Motion specifying the ground that the civil liability did not arise from delict,
hence, survived the death of the accused. The Sandiganbayan upheld the opposition of the
prosecution which disposition was not appealed.
We note, first off, that the death of Angeles and of Mayor Comendador during the pendency of the
case extinguished their criminal liabilities.
We now hold, as did the Sandiganbayan that the civil liability of Mayor Comendador survived his
death; and that of Angeles could have likewise survived had it not been for the fact that the
resolution of the Sandiganbayan that his death extinguished the civil liability was not questioned and
lapsed into finality.
We laid down the following guidelines in People v. Bayotas:
46

Death of the accused pending appeal of his conviction extinguishes his criminal liability as well as
the civil liability based solely thereon. As opined by Justice Regalado, in this regard, "the death of
the accused prior to final judgment terminates his criminal liability and only the civil liability directly
arising from and based solely on the offense committed, i.e., civil liability ex delicto in senso
strictiore."
Corollarily, the claim for civil liability survives notwithstanding the death of (the) accused, if the same
may also be predicated on a source of obligation other than delict. Article 1157 of the Civil Code
enumerates these other sources of obligation from which the civil liability may arise as a result of the
same act or omission:
a) Law
b) Contracts
c) Quasi-contracts
d) Acts or omissions punished by law; and
e) Quasi-delicts. (Emphasis ours)
Where the civil liability survives, as explained [above], an action for recovery therefore may be
pursued but only by way of filing a separate civil action
47
and subject to Section 1, Rule 111 of the
1985 Rules on Criminal Procedure as amended. This separate civil action may be enforced either
against the executor/administrator or the estate of the accused, depending on the source of
obligation upon which the same is based as explained above.
Finally, the private offended party need not fear a forfeiture of his right to file this separate civil action
by prescription, in cases where during the prosecution of the criminal action and prior to its
extinction, the private-offended party instituted together therewith the civil action. In such case, the
statute of limitations on the civil liability is deemed interrupted during the pendency of the criminal
case, conformably with provisions of Article 1155 of the New Civil Code, which should thereby avoid
any apprehension on a possible privation of right by prescription.
Upon death of the accused pending appeal of his conviction, the criminal action is extinguished
inasmuch as there is no longer a defendant to stand as the accused; the civil action instituted therein
for recovery of civil liability ex delicto is ipso facto extinguished, grounded as it is on the criminal.
48

The New Civil Code provisions under the Chapter, Human Relations, were cited by the prosecution
to substantiate its argument that the civil action based therein is an independent one, thus, will stand
despite the death of the accused during the pendency of the case.
On the other hand, the defense invoked Section 4 of Presidential Decree No. 1606, as amended by
Republic Act No. 8249, in support of its argument that the civil action was dependent upon the
criminal action, thus, was extinguished upon the death of the accused. The law provides that:
Any provision of law or the Rules of Court to the contrary notwithstanding, the criminal action and the
corresponding civil action for the recovery of civil liability arising from the offense charged shall at all
times be simultaneously instituted with, and jointly determined in the same proceeding by, the
Sandiganbayan, the filing of the criminal action being deemed to necessarily carry with it the filing of
the civil action, and no right to reserve the filing of such action shall be recognized. (Emphasis ours)
We agree with the prosecution.
Death of Mayor Comendador during the pendency of the case could have extinguished the civil
liability if the same arose directly from the crime committed. However, in this case, the civil liability is
based on another source of obligation, the law on human relations.
49
The pertinent articles follow:
Art. 31 of the Civil Code states:
When the civil action is based on an obligation not arising from the act or omission complained of as
a felony, such civil action may proceed independently of the criminal proceedings and regardless of
the result of the latter.
And, Art. 32(6) states:
Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats,
violates or in any manner impedes or impairs any of the following rights and liberties of another
person shall be liable to the latter for damages:
(6) The right against deprivation of property without due process of law;
x x x x
In any of the cases referred to in this article, whether or not the defendant's act or omission
constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and
distinct civil action for damages, and for other relief. Such civil action shall proceed independently of
any criminal prosecution (if the latter be instituted), and may be proved by a preponderance of
evidence.
As held in Aberca v. Ver:
It is obvious that the purpose of the above codal provision [Art. 32 of the New Civil Code] is to
provide a sanction to the deeply cherished rights and freedoms enshrined in the Constitution. Its
message is clear; no man may seek to violate those sacred rights with impunity. x x x.
50

Indeed, the basic facts of this case point squarely to the applicability of the law on human relations.
First, the complaint for civil liability was filed way AHEAD of the information on the Anti-Graft Law.
And, the complaint for damages specifically invoked defendant Mayor Comendadors violation of
plaintiffs right to due process. Thus:
x x x x
In causing or doing the forcible demolition of the store in question, the individual natural defendants
did not only act with grave abuse of authority but usurped a power which belongs to our courts of
justice; such actuations were done with malice or in bad faith and constitute an invasion of the
property rights of plaintiff(s) without due process of law.
x x x x
The Court is in one with the prosecution that there was a violation of the right to private property of
the Spouses Bombasi. The accused public officials should have accorded the spouses the due
process of law guaranteed by the Constitution and New Civil Code. The Sangguniang Bayan
Resolutions as asserted by the defense will not, as already shown, justify demolition of the store
without court order. This Court in a number of decisions
51
held that even if there is already a writ of
execution, there must still be a need for a special order for the purpose of demolition issued by the
court before the officer in charge can destroy, demolish or remove improvements over the contested
property.
52
The pertinent provisions are the following:
Before the removal of an improvement must take place, there must be a special order, hearing and
reasonable notice to remove. Section 10(d), Rule 39 of the Rules of Court provides:
(d) Removal of improvements on property subject of execution. When the property subject of
execution contains improvements constructed or planted by the judgment obligor or his agent, the
officer shall not destroy, demolish or remove said improvements except upon special order of the
court, issued upon motion of the judgment obligee after due hearing and after the former has failed
to remove the same within a reasonable time fixed by the court.
The above-stated rule is clear and needs no interpretation. If demolition is necessary, there must be
a hearing on the motion filed and with due notices to the parties for the issuance of a special order of
demolition.
53

This special need for a court order even if an ejectment case has successfully been litigated,
underscores the independent basis for civil liability, in this case, where no case was even filed by the
municipality.
The requirement of a special order of demolition is based on the rudiments of justice and fair play. It
frowns upon arbitrariness and oppressive conduct in the execution of an otherwise legitimate act. It
is an amplification of the provision of the Civil Code that every person must, in the exercise of his
rights and in the performance of his duties, act with justice, give everyone his due, and observe
honesty and good faith.
54

Notably, the fact that a separate civil action precisely based on due process violations was filed even
ahead of the criminal case, is complemented by the fact that the deceased plaintiff Comendador was
substituted by his widow, herein petitioner Victoria who specified in her petition that she has
"substituted him as petitioner in the above captioned case." Section 1, Rule III of the 1985 Rules in
Criminal Procedure mentioned in Bayotas is, therefore, not applicable. Truly, the Sandiganbayan
was correct when it maintained the separate docketing of the civil and criminal cases before it
although their consolidation was erroneously based on Section 4 of Presidential Decree No. 1606
which deals with civil liability "arising from the offense charged."
We must, however, correct the amount of damages awarded to the Spouses Bombasi.
To seek recovery of actual damages, it is necessary to prove the actual amount of loss with a
reasonable degree of certainty, premised upon competent proof and on the best evidence
obtainable.
55
In this case, the Court finds that the only evidence presented to prove the actual
damages incurred was the itemized list of damaged and lost items
56
prepared by Engineer Cabrega,
an engineer commissioned by the Spouses Bombasi to estimate the costs.
As held by this Court in Marikina Auto Line Transport Corporation v. People of the Philippines,
57

x x x [W]e agree with the contention of petitioners that respondents failed to prove that the damages
to the terrace caused by the incident amounted to P100,000.00. The only evidence adduced by
respondents to prove actual damages claimed by private respondent were the summary
computation of damage made by Engr. Jesus R. Regal, Jr. amounting to P171,088.46 and the
receipt issued by the BB Construction and Steel Fabricator to private respondent for P35,000.00
representing cost for carpentry works, masonry, welding, and electrical works. Respondents failed to
present Regal to testify on his estimation. In its five-page decision, the trial court
awardedP150,000.00 as actual damages to private respondent but failed to state the factual basis
for such award. Indeed, the trial court merely declared in the decretal portion of its decision that the
"sum of P150,000.00 as reasonable compensation sustained by plaintiff for her damaged
apartment." The appellate court, for its part, failed to explain how it arrived at the amount
of P100,000.00 in its three-page decision. Thus, the appellate court merely declared:
With respect to the civil liability of the appellants, they contend that there was no urgent necessity to
completely demolish the apartment in question considering the nature of the damages sustained as
a result of the accident. Consequently, appellants continue, the award of P150,000.00 as
compensation sustained by the plaintiff-appellee for her damaged apartment is an unconscionable
amount.
Further, in one case,
58
this Court held that the amount claimed by the respondent-claimants witness
as to the actual amount of damages "should be admitted with extreme caution considering that,
because it was a bare assertion, it should be supported by independent evidence." The Court further
said that whatever claim the respondent witness would allege must be appreciated in consideration
of his particular self-interest.
59
There must still be a need for the examination of the documentary
evidence presented by the claimants to support its claim with regard to the actual amount of
damages.
The price quotation made by Engineer Cabrega presented as an exhibit
60
partakes of the nature of
hearsay evidence considering that the person who issued them was not presented as a
witness.
61
Any evidence, whether oral or documentary, is hearsay if its probative value is not based
on the personal knowledge of the witness but on the knowledge of another person who is not on the
witness stand. Hearsay evidence, whether objected to or not, has no probative value unless the
proponent can show that the evidence falls within the exceptions to the hearsay evidence
rule.
62
Further, exhibits do not fall under any of the exceptions provided under Sections 37 to 47 of
Rule 130 of the Rules of Court.
Though there is no sufficient evidence to award the actual damages claimed, this Court grants
temperate damages for P200,000.00 in view of the loss suffered by the Spouses Bombasi.
Temperate damages are awarded in accordance with Art. 2224 of the New Civil Code when the
court finds that some pecuniary loss has been suffered but its amount cannot, from the nature of the
case, be proven with certainty. The amount of temperate or moderated damages is usually left to the
discretion of the courts but the same should be reasonable, bearing in mind that the temperate
damages should be more than nominal but less than compensatory.
63
Without a doubt, the Spouses
Bombasi suffered some form of pecuniary loss in the impairment of their store. Based on the record
of the case,
64
the demolished store was housed on a two-story building located at the markets
commercial area and its concrete walls remained strong and not affected by the fire. However, due
to the failure of the Spouses Bombasi to prove the exact amount of damage in accordance with the
Rules of Evidence,
65
this court finds that P200,000.00 is the amount just and reasonable under the
circumstances.
WHEREFORE, the instant appeal is DENIED. Accordingly, the Decision of the Sandiganbayan
dated 28 April 2003 is hereby AFFIRMED WITH MODIFICATION. The Court affirms the decision
finding the accused Paulino S. Asilo, Jr. and Demetrio T. Comendador guilty of violating Section 3(e)
of Republic Act No. 3019. We declare the finality of the dismissal of both the criminal and civil cases
against Alberto S. Angeles as the same was not appealed. In view of the death of Demetrio T.
Comendador pending trial, his criminal liability is extinguished; but his civil liability survives. The
Municipality of Nagcarlan, Paulino Asilo and Demetrio T. Comendador, as substituted by Victoria
Bueta Vda. De Comendador, are hereby declared solidarily liable to the Spouses Bombasi for
temperate damages in the amount of P200,000.00 and moral damages in the amount
of P100,000.00.
Costs against the petitioners-appellants.
SO ORDERED.

G.R. No. 40243 March 11, 1992
CELESTINO TATEL, petitioner,
vs.
MUNICIPALITY OF VIRAC, SALVADOR A. SURTIDA, in his capacity as Mayor of Virac,
Catanduanes; GAVINO V. GUERRERO, in his capacity as Vice-Mayor of Virac, Catanduanes;
JOSE T. BUEBOS, in his capacity as Councilor of Virac, Catanduanes; ANGELES TABLIZO, in
his capacity as Councilor of Virac, Catanduanes; ELPIDIO T. ZAFE, in his capacity as
Councilor of Virac, Catanduanes; MARIANO ALBERTO, in his capacity as Councilor of Virac,
Catanduanes; JULIA A. GARCIA, in her capacity as Councilor of Virac, Catanduanes; and
PEDRO A. GUERRERO, in his capacity as Councilor of Virac, Catanduanes, respondents.

NOCON, J .:
This is a Petition for Prohibition with Preliminary Injunction with the Court of First Instance of
Catanduanes filed by appellant, Celestino Tatel, a businessman engaged in the import and export of
abaca and other products against the Municipal Council of Virac, Catanduanes and its municipal
officials enjoining them from enforcing Resolution No 29
1
of the Council, declaring the warehouse of
petitioner in barrio Sta. Elena of the said municipality a public nuisance within the purview of Article 694 of
the Civil Code of the Philippines and directing the petitioner to remove and transfer said warehouse to a
more suitable place within two (2) months from receipt of the said resolution.
It appears from the records that on the basis of complaints received from the residents of barrio Sta.
Elena on March 18, 1966 against the disturbance caused by the operation of the abaca bailing
machine inside the warehouse of petitioner which affected the peace and tranquility of the
neighborhood due to the smoke, obnoxious odor and dust emitted by the machine, a committee was
appointed by the municipal council of Virac to investigate the matter. The committee noted the
crowded nature of the neighborhood with narrow roads and the surrounding residential houses, so
much so that an accidental fire within the warehouse of the petitioner occasioned by the continuance
of the activity inside the warehouse and the storing of inflammable materials created a danger to the
lives and properties of the people within the neighborhood.
Resultantly, Resolution No. 29 was passed by the Municipal Council of Virac on April 22, 1966
declaring the warehouse owned and operated by petitioner a public nuisance within the purview of
Article 694 of the New Civil Code.
2

His motion for reconsideration having been denied by the Municipal Council of Virac, petitioner
instituted the present petition for prohibition with preliminary injunction.
Respondent municipal officials contend that petitioner's warehouse was constructed in violation of
Ordinance No. 13, series of 1952, prohibiting the construction of warehouses near a block of houses
either in the poblacion or barrios without maintaining the necessary distance of 200 meters from said
block of houses to avoid loss of lives and properties by accidental fire.
On the other hand, petitioner contends that said ordinance is unconstitutional, contrary to the due
process and equal protection clause of the Constitution and null and void for not having been passed
in accordance with law.
The issue then boils down on whether petitioner's warehouse is a nuisance within the meaning of
Article 694 of the Civil Code and whether Ordinance No. 13, S. 1952 of the Municipality of Virac is
unconstitutional and void.
In a decision dated September 18, 1969, the court a quo ruled as follows:
1. The warehouse in question was legally constructed under a valid permit issued by
the municipality of Virac in accordance with existing regulations and may not be
destroyed or removed from its present location;
2. Ordinance No. 13, series of 1952, is a legitimate and valid exercise of police
power by the Municipal Council of Virac is not (sic) unconstitutional and void as
claimed by the petitioner;
3. The storage by the petitioner of abaca and copra in the warehouse is not only in
violation of the provisions of the ordinance but poses a grave danger to the safety of
the lives and properties of the residents of the neighborhood due to accidental fire
and constitutes a public nuisance under the provisions of Article 694 of the New Civil
code of the Philippines and may be abated;
4. Accordingly, the petitioner is hereby directed to remove from the said warehouse
all abaca and copra and other inflammable articles stored therein which are
prohibited under the provisions of Ordinance No. 13, within a period of two (2)
months from the time this decision becomes final and that henceforth, the petitioner
is enjoined from storing such prohibited articles in the warehouse. With costs against
petitioner.
Seeking appellate review, petitioner raised as errors of the court a quo:
1. In holding that Ordinance No. 13, series of 1952, of the Municipality of Virac,
Catanduanes, is a legitimate and valid exercise of police power of the Municipal
Council, and therefore, constitutional;
2. In giving the ordinance a meaning other than and different from what it provided by
declaring that petitioner violated the same by using the warehouse for storage of
abaca and copra when what is prohibited and penalized by the ordinance is the
construction of warehouses.
3. In refusing to take judicial notice of the fact that in the municipality, there are
numerous establishments similarly situated as appellants' warehouses but which are
not prosecuted.
We find no merit in the Petition.
Ordinance No. 13, series of 1952, was passed by the Municipal Council of Virac in the exercise of its
police power. It is a settled principle of law that municipal corporations are agencies of the State for
the promotion and maintenance of local self-government and as such are endowed with the police
powers in order to effectively accomplish and carry out the declared objects of their creation.
3
Its
authority emanates from the general welfare clause under the Administrative Code, which reads:
The municipal council shall enact such ordinances and make such regulations, not
repugnant to law, as may be necessary to carry into effect and discharge the powers
and duties conferred upon it by law and such as shall seem necessary and proper to
provide for the health and safety, promote the prosperity, improve the morals, peace,
good order, comfort and convenience of the municipality and the inhabitants thereof,
and for the protection of property therein.
4

For an ordinance to be valid, it must not only be within the corporate powers of the municipality to
enact but must also be passed according to the procedure prescribed by law, and must be in
consonance with certain well established and basic principles of a substantive nature. These
principles require that a municipal ordinance (1) must not contravene the Constitution or any statute
(2) must not be unfair or oppressive (3) must not be partial or discriminatory (4) must not prohibit but
may regulate trade (5) must be general and consistent with public policy, and (6) must not be
unreasonable.
5
Ordinance No. 13, Series of 1952, meets these criteria.
As to the petitioner's second assignment of error, the trial court did not give the ordinance in
question a meaning other than what it says. Ordinance No. 13 passed by the Municipal Council of
Virac on December 29, 1952,
6
reads:
AN ORDINANCE STRICTLY PROHIBITING THE CONSTRUCTION OF
WAREHOUSE IN ANY FORM NEAR A BLOCK OF HOUSES EITHER IN
POBLACION OR BARRIO WITH NECESSARY DISTANCE TO AVOID GREAT
LOSSES OF PROPERTY AND LIVES BY FIRE ACCIDENT.
Section 1 provides:
It is strictly prohibited to construct warehouses in any form to any person, persons,
entity, corporation or merchants, wherein to keep or store copra, hemp, gasoline,
petroleum, alcohol, crude oil, oil of turpentine and the like products or materials if not
within the distance of 200 meters from a block of houses either in the poblacion or
barrios to avoid great losses of properties inclusive lives by fire accident.
Section 2 provides:
7

Owners of warehouses in any form, are hereby given advice to remove their said
warehouses this ordinance by the Municipal Council, provided however, that if those
warehouses now in existence should no longer be utilized as such warehouse for the
above-described products in Section 1 of this ordinance after a lapse of the time
given for the removal of the said warehouses now in existence, same warehouses
shall be exempted from the spirit of the provision of section 1 of this
ordinance,provided further, that these warehouses now in existence, shall in the
future be converted into non-inflammable products and materials warehouses.
In spite of its fractured syntax, basically, what is regulated by the ordinance is the construction of
warehouses wherein inflammable materials are stored where such warehouses are located at a
distance of 200 meters from a block of houses and not the construction per se of a warehouse. The
purpose is to avoid the loss of life and property in case of fire which is one of the primordial
obligation of the government.
This was also the observation of the trial court:
A casual glance of the ordinance at once reveals a manifest disregard of the
elemental rules of syntax. Experience, however, will show that this is not uncommon
in law making bodies in small towns where local authorities and in particular the
persons charged with the drafting and preparation of municipal resolutions and
ordinances lack sufficient education and training and are not well grounded even on
the basic and fundamental elements of the English language commonly used
throughout the country in such matters. Nevertheless, if one scrutinizes the terms of
the ordinance, it is clear that what is prohibited is the construction of warehouses by
any person, entity or corporation wherein copra, hemp, gasoline and other
inflammable products mentioned in Section 1 may be stored unless at a distance of
not less than 200 meters from a block of houses either in the poblacion or barrios in
order to avoid loss of property and life due to fire. Under Section 2, existing
warehouses for the storage of the prohibited articles were given one year after the
approval of the ordinance within which to remove them but were allowed to remain in
operation if they had ceased to store such prohibited articles.
The ambiguity therefore is more apparent than real and springs from simple error in
grammatical construction but otherwise, the meaning and intent is clear that what is
prohibited is the construction or maintenance of warehouses for the storage of
inflammable articles at a distance within 200 meters from a block of houses either in
the poblacion or in the barrios. And the purpose of the ordinance is to avoid loss of
life and property in case of accidental fire which is one of the primordial and basic
obligation of any government. 8
Clearly, the lower court did NOT add meaning other than or differrent from what was provided in the
ordinance in question. It merely stated the purpose of the ordinance and what it intends to prohibit to
accomplish its purpose.
As to the third assignment of error, that warehouses similarly situated as that of the petitioner were
not prosecuted, suffice it to say that the mere fact that the municipal authorities of Virac have not
proceeded against other warehouses in the municipality allegedly violating Ordinance No. 13 is no
reason to claim that the ordinance is discriminatory. A distinction must be made between the law
itself and the manner in which said law is implemented by the agencies in charge with its
administration and enforcement. There is no valid reason for the petitioner to complain, in the
absence of proof that the other bodegas mentioned by him are operating in violation of the ordinance
and that the complaints have been lodged against the bodegas concerned without the municipal
authorities doing anything about it.
The objections interposed by the petitioner to the validity of the ordinance have not been
substantiated. Its purpose is well within the objectives of sound government. No undue restraint is
placed upon the petitioner or for anybody to engage in trade but merely a prohibition from storing
inflammable products in the warehouse because of the danger of fire to the lives and properties of
the people residing in the vicinity. As far as public policy is concerned, there can be no better policy
than what has been conceived by the municipal government.
As to petitioner's contention of want of jurisdiction by the lower court we find no merit in the same.
The case is a simple civil suit for abatement of a nuisance, the original jurisdiction of which falls
under the then Court of First Instance.
WHEREFORE, for lack of merit, the petition is hereby DISMISSED. Costs against petitioner.
SO ORDERED

G.R. No. 148339 February 23, 2005
LUCENA GRAND CENTRAL TERMINAL, INC., petitioner,
vs.
JAC LINER, INC., Respondent.
D E C I S I O N
CARPIO MORALES, J .:
Respondent, JAC Liner, Inc., a common carrier operating buses which ply various routes to and from
Lucena City, assailed, via a petition for prohibition and injunction
1
against the City of Lucena, its
Mayor, and the Sangguniang Panlungsod of Lucena before the Regional Trial Court (RTC) of
Lucena City, City Ordinance Nos. 1631 and 1778 as unconstitutional on the ground that, inter alia,
the same constituted an invalid exercise of police power, an undue taking of private property, and a
violation of the constitutional prohibition against monopolies. The salient provisions of the ordinances
are:
Ordinance No. 1631
2

AN ORDINANCE GRANTING THE LUCENA GRAND CENTRAL TERMINAL, INC., A
FRANCHISE TO CONSTRUCT, FINANCE, ESTABLISH, OPERATE AND MAINTAIN A COMMON
BUS-JEEPNEY TERMINAL FACILITY IN THE CITY OF LUCENA
x x x
SECTION 1. There is hereby granted to the Lucena Grand Central Terminal, Inc., its successors or
assigns, hereinafter referred to as the "grantee", a franchise to construct, finance, establish, operate,
and maintain a common bus-jeepney terminal facility in the City of Lucena.
SECTION 2. This franchise shall continue for a period of twenty-five years, counted from the
approval of this Ordinance, and renewable at the option of the grantee for another period of twenty-
five (25) years upon such expiration.
x x x
SECTION 4. Responsibilities and Obligations of the City Government of Lucena. During the
existence of the franchise, the City Government of Lucena shall have the following responsibilities
and obligations:
x x x
(c) It shall not grant any third party any privilege and/or concession to operate a bus, mini-bus and/or
jeepney terminal.
x x x
Ordinance No. 1778
3

AN ORDINANCE REGULATING THE ENTRANCE TO THE CITY OF LUCENA OF ALL BUSES,
MINI-BUSES AND OUT-OF-TOWN PASSENGER JEEPNEYS AND FOR THIS PURPOSE,
AMENDING ORDINACE NO. 1420, SERIES OF 1993, AND ORDINANCE NO. 1557, SERIES OF
1995
x x x
SECTION 1. The entrance to the City of Lucena of all buses, mini-buses and out-of-town
passenger jeepneys is hereby regulated as follows:
(a) All buses, mini-buses and out-of-town passenger jeepneys shall be prohibited from
entering the cityand are hereby directed to proceed to the common terminal, for picking-up
and/or dropping of their passengers.
(b) All temporary terminals in the City of Lucena are hereby declared inoperable starting
from the effectivity of this ordinance.
x x x
SECTION 3. a) Section 1 of Ordinance No. 1557, Series of 1995, is hereby amended to read as
follows:
Buses, mini-buses, and jeepney type mini-buses from other municipalities and/or local government
units going to Lucena City are directed to proceed to the Common Terminal located at Diversion
Road, Brgy. Ilayang Dupay, to unload and load passengers.
x x x
c) Section 3 of Ordinance No. 1557, Series of 1995, is hereby amended to read as follows:
Passenger buses, mini-buses, and jeepney type mini-buses coming from other municipalities
and/or local government units shall utilize the facilities of the Lucena Grand Central Terminal
at Diversion Road, Brgy. Ilayang Dupay, this City, and no other terminals shall be situated
inside or within the City of Lucena;
d) Section 4 of Ordinance No. 1557, Series of 1995, is hereby amended to read as follows:
Passenger buses, mini-buses, and jeepney type mini-buses coming from other municipalities
and/or local government units shall avail of the facilities of the Lucena Grand Central
Terminal which is hereby designated as the officially sanctioned common terminal for the
City of Lucena;
e) Section 5 of Ordinance No. 1557, Series of 1995, is hereby amended to read as follows:
The Lucena Grand Central Terminal is the permanent common terminal as this is the entity w
hich was giventhe exclusive franchise by the Sangguniang Panglungsod under Ordinance No
. 1631; (Emphasis and underscoring supplied)
These ordinances, by granting an exclusive franchise for twenty five years, renewable for another
twenty five years, to one entity for the construction and operation of one common bus and jeepney
terminal facility in Lucena City, to be located outside the city proper, were professedly aimed towards
alleviating the traffic congestion alleged to have been caused by the existence of various bus and
jeepney terminals within the city, as the "Explanatory Note"-Whereas Clause adopting Ordinance
No. 1778 states:
WHEREAS, in line with the worsening traffic condition of the City of Lucena, and with the purpose of
easing and regulating the flow of the same, it is imperative that the Buses, Mini-Buses and out-of-
town jeepneys be prohibited from maintaining terminals within the City, but instead directing to
proceed to the Lucena Grand Central Terminal for purposes of picking-up and/or dropping off their
passengers;
4

Respondent, who had maintained a terminal within the city, was one of those affected by the
ordinances.
Petitioner, Lucena Grand Central Terminal, Inc., claiming legal interest as the grantee of the
exclusive franchise for the operation of the common terminal,
5
was allowed to intervene in the
petition before the trial court.
In the hearing conducted on November 25, 1998, all the parties agreed to dispense with the
presentation of evidence and to submit the case for resolution solely on the basis of the pleadings
filed.
6

By Order of March 31, 1999,
7
Branch 54 of the Lucena RTC rendered judgment, the dispositive
portion of which reads:
WHEREFORE, in view of the foregoing premises, judgment is hereby rendered, as follows:
1. Declaring City Ordinance No. 1631 as valid, having been issued in the exercise of the
police power of the City Government of Lucena insofar as the grant of franchise to the
Lucena Grand Central Terminal, Inc., to construct, finance, establish, operate and maintain
common bus-jeepney terminal facility in the City of Lucena;
2. But however, declaring the provision of Sec. 4(c) of Ordinance No. 1631 to the effect that
the City Government shall not grant any third party any privilege and/or concession to
operate a bus, mini-bus and/or jeepney terminal, as illegal and ultra vires because it
contravenes the provisions of Republic Act No. 7160, otherwise known as "The Local
Government Code";
3. Declaring City Ordinance No. 1778 as null and void, the same being also an ultra vires act
of the City Government of Lucena arising from an invalid, oppressive and unreasonable
exercise of the police power, more specifically, declaring illegal [sections 1(b), 3(c) and 3(e)];
4. Ordering the issuance of a Writ of Prohibition and/or Injunction directing the respondents
public officials, the City Mayor and the Sangguniang Panglungsod of Lucena, to cease and
desist from implementing Ordinance No. 1778 insofar as said ordinance prohibits or
curtails petitioner from maintaining and operating its own bus terminal subject to the
conditions provided for in Ordinance No. 1557, Sec. 3, which authorizes the construction of
terminal outside the poblacion of Lucena City; and likewise, insofar as said ordinance
directs and compels the petitioner to use the Lucena Grand Central Terminal Inc., and
furthermore, insofar as it declares that no other terminals shall be situated,
constructed, maintained or established inside or within the City of Lucena; and
furthermore,
5. The Motion to Dismiss filed by the Intervenor, Lucena Grand Central Terminal Inc., dated
October 19, 1998, is hereby DENIED for lack of merit.
SO ORDERED. (Emphasis and underscoring supplied)
8

Petitioners Motion for Reconsideration
9
of the trial courts order having been denied by Order of
August 6, 1999,
10
it elevated it via petition for review under Rule 45 before this Court.
11
This Court, by
Resolution of November 24, 1999,
12
referred the petition to the Court of Appeals with which it has
concurrent jurisdiction, no special and important reason having been cited for it to take cognizance
thereof in the first instance.
By Decision of December 15, 2000,
13
the appellate court dismissed the petition and affirmed the
challenged orders of the trial court. Its motion for reconsideration
14
having been denied by the
appellate court by Resolution dated June 5, 2001,
15
petitioner once again comes to this Court via
petition for review,
16
this time assailing the Decision and Resolution of the Court of Appeals.
Decision on the petition hinges on two issues, to wit: (1) whether the trial court has jurisdiction over
the case, it not having furnished the Office of the Solicitor General copy of the orders it issued
therein, and (2) whether the City of Lucena properly exercised its police power when it enacted the
subject ordinances.
Petitioner argues that since the trial court failed to serve a copy of its assailed orders upon the Office
of the Solicitor General, it never acquired jurisdiction over the case, it citing Section 22, Rule 3 of
the Rules which provides:
SEC. 22. Notice to the Solicitor General.In any action involving the validity of any treaty,
law, ordinance, executive order, presidential decree, rules or regulations, the court in its discretion,
may require the appearance of the Solicitor General who may be heard in person or through
representative duly designated by him. (Emphasis and underscoring supplied)
Furthermore, petitioner invokes Sections 3 and 4 of Rule 63 which respectively provide:
SEC. 3. Notice on Solicitor General. In any action which involves the validity of a statute, executive
order or regulation, or any other governmental regulation, the Solicitor General shall be notified by
the party assailing the same and shall be entitled to be heard upon such question.
SEC. 4. Local government ordinances. In any action involving the validity of a local government
ordinance, the corresponding prosecutor or attorney of the local government unit involved shall be
similarly notified and entitled to be heard. If such ordinance is alleged to be unconstitutional, the
Solicitor General shall also be notified and entitled to be heard. (Emphasis and underscoring
supplied)
Nowhere, however, is it stated in the above-quoted rules that failure to notify the Solicitor General
about the action is a jurisdictional defect.
In fact, Rule 3, Section 22 gives the courts in any action involving the "validity" of
any ordinance, inter alia, "discretion" to notify the Solicitor General.
Section 4 of Rule 63, which more specifically deals with cases assailing the constitutionality, not just
the validity, of alocal government ordinance, directs that the Solicitor General "shall also be notified
and entitled to be heard." Who will notify him, Sec. 3 of the same rule provides it is the party
which is assailing the local governments ordinance.
More importantly, however, this Court finds that no procedural defect, fatal or otherwise, attended
the disposition of the case. For respondent actually served a copy of its petition upon the Office of
the Solicitor General on October 1, 1998, two days after it was filed. The Solicitor General has
issued a Certification to that effect.
17
There was thus compliance with above-quoted rules.
Respecting the issue of whether police power was properly exercised when the subject ordinances
were enacted: As with the State, the local government may be considered as having properly
exercised its police power only if the following requisites are met: (1) the interests of the public
generally, as distinguished from those of a particular class, require the interference of the State, and
(2) the means employed are reasonably necessary for the attainment of the object sought to be
accomplished and not unduly oppressive upon individuals. Otherwise stated, there must be a
concurrence of a lawful subject and lawful method.
18

That traffic congestion is a public, not merely a private, concern, cannot be gainsaid. In Calalang v.
Williams
19
which involved a statute authorizing the Director of Public Works to promulgate rules and
regulations to regulate and control traffic on national roads, this Court held:
In enacting said law, therefore, the National Assembly was prompted by considerations of public
convenience and welfare. It was inspired by a desire to relieve congestion of traffic, which is, to
say the least, a menace to public safety. Public welfare, then, lies at the bottom of the enactment of
said law, and the state in order to promote the general welfare may interfere with personal liberty,
with property, and with business and occupations.
20
(Emphasis supplied)
The questioned ordinances having been enacted with the objective of relieving traffic congestion in
the City of Lucena, they involve public interest warranting the interference of the State. The first
requisite for the proper exercise of police power is thus present.
Respondents suggestion to have this Court look behind the explicit objective of the ordinances
which, to it, was actually to benefit the private interest of petitioner by coercing all bus operators to
patronize its terminal does not lie.
21
Lim v. Pacquing
22
instructs:
. . . [T]his Court cannot look into allegations that PD No. 771 was enacted to benefit a select group
which was later given authority to operate the jai-alai under PD No. 810. The examination of
legislative motivation is generally prohibited. (Palmer v. Thompson, 403 U.S. 217, 29 L. Ed. 2d 438
[1971] per Black, J.) There is, in the first place, absolute lack of evidence to support ADCs allegation
of improper motivation in the issuance of PD No. 771. In the second place, as already averred, this
Court cannot go behind the expressed and proclaimed purposes of PD No. 771, which are
reasonable and even laudable. (Underscoring supplied)
23

This leaves for determination the issue of whether the means employed by the Lucena Sangguniang
Panlungsod to attain its professed objective were reasonably necessary and not unduly oppressive
upon individuals.
With the aim of localizing the source of traffic congestion in the city to a single location,
24
the subject
ordinances prohibit the operation of all bus and jeepney terminals within Lucena, including those
already existing, and allow the operation of only one common terminal located outside the city
proper, the franchise for which was granted to petitioner. The common carriers plying routes to and
from Lucena City are thus compelled to close down their existing terminals and use the facilities of
petitioner.
In De la Cruz v. Paras,
25
this Court declared unconstitutional an ordinance characterized by
overbreadth. In that case, the Municipality of Bocaue, Bulacan prohibited the operation of all night
clubs, cabarets and dance halls within its jurisdiction for the protection of public morals. Held the
Court:
It cannot be said that such a sweeping exercise of a lawmaking power by Bocaue could qualify unde
r the termreasonable. The objective of fostering public morals, a worthy and desirable end can be att
ained by a measure thatdoes not encompass too wide a field. Certainly the ordinance on its face is c
haracterized by overbreadth. Thepurpose sought to be achieved could have been attained by reason
able restrictions rather than by an absoluteprohibition. The admonition in Salaveria should be
heeded: "The Judiciary should not lightly set aside legislative action when there is not a clear
invasion of personal or property rights under the guise of police regulation." It is clear that in the
guise of a police regulation, there was in this instance a clear invasion of personal or property rights,
personal in the case of those individuals desirous of patronizing those night clubs and property in
terms of the investments made and salaries to be earned by those therein employed. (Underscoring
supplied)
26

In Lupangco v. Court of Appeals,
27
this Court, in declaring unconstitutional the resolution subject
thereof, advanced a similar consideration. That case involved a resolution issued by the Professional
Regulation Commission which prohibited examinees from attending review classes and receiving
handout materials, tips, and the like three days before the date of examination in order to preserve
the integrity and purity of the licensure examinations in accountancy. Besides being unreasonable
on its face and violative of academic freedom, the measure was found to be more sweeping than
what was necessary, viz:
Needless to say, the enforcement of Resolution No. 105 is not a guarantee that the alleged leakages
in the licensure examinations will be eradicated or at least minimized. Making the examinees suffer
by depriving them of legitimate means of review or preparation on those last three precious days
when they should be refreshing themselves with all that they have learned in the review classes and
preparing their mental and psychological make-up for the examination day itself would be like
uprooting the tree to get rid of a rotten branch. What is needed to be done by the respondent
is to find out the source of such leakages and stop it right there. If corrupt officials or personnel
should be terminated from their loss, then so be it. Fixers or swindlers should be flushed out. Strict
guidelines to be observed by examiners should be set up and if violations are committed, then
licenses should be suspended or revoked. x x x (Emphasis and underscoring supplied)
28

As in De la Cruz
29
and Lupangco,
30
the ordinances assailed herein are characterized by overbreadth.
They go beyond what is reasonably necessary to solve the traffic problem. Additionally, since the
compulsory use of the terminal operated by petitioner would subject the users thereof to fees, rentals
and charges, such measure is unduly oppressive, as correctly found by the appellate court.
31
What
should have been done was to determine exactly where the problem lies and then to stop it right
there.
The true role of Constitutional Law is to effect an equilibrium between authority and liberty so that
rights are exercised within the framework of the law and the laws are enacted with due deference to
rights. (Underscoring supplied)
32

A due deference to the rights of the individual thus requires a more careful formulation of solutions to
societal problems.
From the memorandum
33
filed before this Court by petitioner, it is gathered that the Sangguniang
Panlungsod had identified the cause of traffic congestion to be the indiscriminate loading and
unloading of passengers by buses on the streets of the city proper, hence, the conclusion that the
terminals contributed to the proliferation of buses obstructing traffic on the city streets.
Bus terminals per se do not, however, impede or help impede the flow of traffic. How the outright
proscription against the existence of all terminals, apart from that franchised to petitioner, can be
considered as reasonably necessary to solve the traffic problem, this Court has not been
enlightened. If terminals lack adequate space such that bus drivers are compelled to load and
unload passengers on the streets instead of inside the terminals, then reasonable specifications for
the size of terminals could be instituted, with permits to operate the same denied those which are
unable to meet the specifications.
In the subject ordinances, however, the scope of the proscription against the maintenance of
terminals is so broad that even entities which might be able to provide facilities better than the
franchised terminal are barred from operating at all.
Petitioner argues, however, that other solutions for the traffic problem have already been tried but
proven ineffective. But the grant of an exclusive franchise to petitioner has not been shown to be the
only solution to the problem.
While the Sangguniang Panlungsod, via Ordinance No. 1557,
34
previously directed bus owners and
operators to put up their terminals "outside the poblacion of Lucena City," petitioner informs that said
ordinance only resulted in the relocation of terminals to other well-populated barangays, thereby
giving rise to traffic congestion in those areas.
35
Assuming that information to be true, the
Sangguniang Panlungsod was not without remedy. It could have defined, among other
considerations, in a more precise manner, the area of relocation to avoid such consequences.
As for petitioners argument that the challenged ordinances were enacted pursuant to the power of
the Sangguniang Panlungsod to "[r]egulate traffic on all streets and bridges; prohibit encroachments
or obstacles thereon and, when necessary in the interest of public welfare, authorize the removal of
encroachments and illegal constructions in public places":
36
Absent any showing, nay allegation, that
the terminals are encroaching upon public roads, they are not obstacles. The buses which
indiscriminately load and unload passengers on the city streets are. The power then of the
Sangguniang Panlungsod to prohibit encroachments and obstacles does not extend to terminals.1a\^/ phi1.net
Neither are terminals public nuisances as petitioner argues. For their operation is a legitimate
business which, by itself, cannot be said to be injurious to the rights of property, health, or comfort of
the community.
But even assuming that terminals are nuisances due to their alleged indirect effects upon the flow of
traffic, at most they are nuisance per accidens, not per se.
Unless a thing is nuisance per se, however, it may not be abated via an ordinance, without judicial
proceedings, as was done in the case at bar.
In Estate of Gregoria Francisco v. Court of Appeals,
37
this Court held:
Respondents can not seek cover under the general welfare clause authorizing the abatement of
nuisances without judicial proceedings. That tenet applies to a nuisance per se, or one which affects
the immediate safety of persons and property and may be summarily abated under the undefined
law of necessity (Monteverde v. Generoso, 52 Phil. 123 [1982]). The storage of copra in the quonset
building is a legitimate business. By its nature, it can not be said to be injurious to rights of property,
of health or of comfort of the community. If it be a nuisance per accidens it may be so proven in a
hearing conducted for that purpose. It is not per se a nuisance warranting its summary abatement
without judicial intervention.l^vvphi 1. net (Underscoring supplied)
38
1awphi1.nt
In Pampanga Bus Co., Inc. v. Municipality of Tarlac
39
where the appellant-municipality similarly
argued that the terminal involved therein is a nuisance that may be abated by the Municipal Council
via an ordinance, this Court held: "Suffice it to say that in the abatement of nuisances the provisions
of the Civil Code (Articles 694-707) must be observed and followed. This appellant failed to do."
As for petitioners claim that the challenged ordinances have actually been proven effective in easing
traffic congestion: Whether an ordinance is effective is an issue different from whether it is
reasonably necessary. It is itsreasonableness, not its effectiveness, which bears upon its
constitutionality. If the constitutionality of a law were measured by its effectiveness, then even
tyrannical laws may be justified whenever they happen to be effective.
The Court is not unaware of the resolutions of various barangays in Lucena City supporting the
establishment of a common terminal, and similar expressions of support from the private sector,
copies of which were submitted to this Court by petitioner. The weight of popular opinion, however,
must be balanced with that of an individuals rights.
There is no question that not even the strongest moral conviction or the most urgent public need,
subject only to a few notable exceptions, will excuse the bypassing of an individual's rights. It is no
exaggeration to say that a person invoking a right guaranteed under Article III of the Constitution is a
majority of one even as against the rest of the nation who would deny him that right.
40

WHEREFORE, the petition is hereby DENIED.
SO ORDERED.

G.R. No. 97477 May 8, 1992
RTC JUDGE CAMILO E. TAMIN, Presiding Judge, Regional Trial Court, Branch 23, Molave,
Zamboanga del Sur and the MUNICIPALITY OF DUMINGAG, ZAMBOANGA DEL SUR;
represented by MAYOR DOMICIANO E. REAL, petitioners,
vs.
COURT OF APPEALS, VICENTE MEDINA and FORTUNATA ROSELLON, respondents.

GUTIERREZ, JR., J .:
The present petition seeks to annul and set aside the decision and resolution dated January 21,
1991 and February 20, 1991, respectively of the Court of Appeals which declared as null and void
the October 10, 1991 order of the petitioner Judge in a civil case "for ejectment with preliminary
injunction and damages" filed by petitioner municipality against the private respondents granting the
petitioner municipality's motion for a writ of possession and the writ issued pursuant to it.
On September 24, 1990, petitioner municipality represented by its mayor Domiciano E. Real filed
with the Regional Trial Court of Zamboanga del Sur, Branch 23, Molave, presided by the petitioner
Judge, a complaint denominated as "Ejectment with Preliminary Injunction and Damages" against
respondents Vicente Medina and Fortunata Rosellon.
The complaint alleged that the plaintiff (petitioner municipality herein) is the owner of a parcel of
residential land located at Poblacion, Dumingag, Zamboanga del Sur with an area of 5,894 square
meters more or less; that the parcel of land was reserved for public plaza under Presidential
Proclamation No. 365 dated March 15, 1968; that during the incumbency of the late Mayor Isidoro E.
Real, Sr. or in 1958, the municipality leased an Area of 1,350 square meters to the defendants
(respondents herein) subject to the condition that they should vacate the place in case it is needed
for public purposes; that the defendants religiously paid the rentals until 1967; that thereafter, the
defendants refused to pay the rentals; that the incumbent mayor discovered that the defendants filed
a "Cadastral Answer" over said lot; that the defendants refused to vacate the place despite efforts of
the municipality; that the national government had alloted an appropriation for the construction of a
municipal gymnasium within the public plaza but the said construction which was already started
could not continue because of the presence of the buildings constructed by the defendants; that the
appropriation for the construction of the gymnasium might be reverted back to the national
government which would result to "irreparable damage, injury and prejudice" to the municipality and
its people who are expected to derive benefit from the accomplishment of the project.
The complaint prayed:
1. That a restraining order shall be issued immediately after the filing of this case;
2. That after due notice and hearing, a writ of preliminary mandatory injunction shall
be issued against the herein defendants for them (sic) form further occupying the
leased portion to them (sic), and/or that a Writ of Possession be immediately issued
to preserve the rights of the herein plaintiff;
3. That judgment should be entered against the herein defendants to vacate the
premises of the leased portion given to them. (CA Rollo, pp. 11-12)
On the same day, September 24, 1990, the petitioner Judge issued an order setting the preliminary
hearing for the issuance of a writ of preliminary mandatory injunction and/or writ of possession on
October 10, 1990.
Instead of filing an answer, the respondents filed a motion to dismiss alleging the lack of jurisdiction
of the trial court, since the complaint is for illegal detainer which is within the original jurisdiction of
the municipal court and the pendency of a cadastral case (Cadastral Case No. N-10, LRC Cad. Rec.
No. N-108, Lot 9481 [Pls-61] TS-218) between the parties over the ownership of the same parcel of
land.
On October 10, 1990, the petitioner Judge issued two (2) orders. The first order denied the motion to
dismiss. The second order granted the petitioner municipality's motion for a writ of possession "with
the ancillary writ of demolition to place in possession the plaintiff on the land subject of this case, to
the end that the public construction thereon will not be jeopardized." (CA Rollo, p. 22)
In denying the motion to dismiss, the petitioner Judge said:
xxx xxx xxx
2. In the complaint, the plaintiff alleges that the defendant is claiming ownership over
the land which was previously rented to defendant by the plaintiff municipality. This
action is, therefore, clearly anaccion de reivindicacion, a real action within the
jurisdiction of this court.
3. As the complaint is for recovery of ownership of the land not to enforce the
contract, the Statute of Fraud does not apply.
4. The land subject of this case is covered by P.D. No. 365, withdrawing this land
from sale of settlement and reserving the same for school site purposes under the
administration of the Director of Public School and public plaza under the
administration of the Municipality of Dumingag, therefore the Cadastral court has no
jurisdiction over the land involved in this case. (CA Rollo, p. 20)
The petitioner Judge justified his granting the motion for a writ of possession with the ancillary writ of
demolition by applying the rule an eminent domain (Rule 67 of the Revised Rules of Court,
erroneously referred to as Rule 68) in analogy in that under this Rule the complainant is given the
right to the writ of possession in order that public construction and projects will not be delayed.
According to the petitioner Judge, the necessity of a writ of possession is greater in the instant case
considering that the parcel of land is covered by a Presidential Proclamation and the on-going
construction thereon is being endangered to be left unfinished on account of the buildings standing
on the parcel of land because the appropriation for the construction might be reverted back to the
national treasury.
The private respondents filed an omnibus motion for reconsideration with motion to set aside order
and to quash writ of possession and demolition but this was denied in an order dated October 19,
1990.
On October 19, 1990, the petitioner municipality implemented the writ of possession and ancillary
writ of demolition issued by the petitioner Judge resulting in the dispossession of the private
respondents from the parcel of land and the demolition of structures and buildings thereon owned by
the respondents.
On October 23, 1990, the private respondents filed their answer to the complaint alleging therein that
the subject parcel of land has been owned, occupied and possess by respondent Vicente Medina
since 1947 when he bought the subject parcel from a Subanan native; that the other respondent
Fortunata Rosellon leased from Medina a portion of the parcel of land; that the respondents were
never lessees of the petitioner municipality; that Proclamation No-365 issued on March 15, 1968
recognized "private rights"; and, that a case is pending before the Cadastral court between
respondent Medina and petitioner municipality as regards the ownership of the subject parcel of
land.
Before the petitioner Judge could further act on the case, the private respondents filed a petition
for certiorari with the Court of Appeals questioning the October 10 and October 19, 1990 orders of
the petitioner Judge.
In a resolution dated November 14, 1990, the petition was given due course and a temporary
restraining order was issued enjoining the petitioner Judge from proceeding with the hearing of the
case and from enforcing the October 10, and 19, 1990 orders.
On January 21, 1990, the appellate court rendered the questioned decision. A motion for
reconsideration was denied in a resolution dated February 20, 1991.
Hence, this petition.
In a resolution dated November 26, 1991, we gave due course to the petition.
The appellate court rightfully upheld the jurisdiction of the Regional Trial Court over the case based
on the allegations in the complaint. The allegations and not the title control the cause of action of the
complaint. (Andamo v. Intermediate Appellate Court, 191 SCRA 195 [1990]).
The Court said:
First, Does the Regional Trial Court have jurisdiction over the case brought by the
Municipality of Dimangag? As already noted, the gist of the complaint below is that
the land in question is part of the public domain which the President of the
Philippines, under Proclamation No. 365, dated March 25, (should be 15) 1968,
reserved for school site and public plaza in the Municipality of Dumingag and that the
petitioners, to whom the former town mayor had leased a part of the land, refused to
vacate and to pay rents. If this is the theory on which the complaint is based, then the
action may really be considered one for recovery of possession. For though a lease
is alleged, the lease would be void and the municipality could recover the possession
of the land. This is the teaching of the leading case ofMunicipality of Cavite v. Rojas,
30 Phil. 602 [1915] in which it was held that the lease by a municipal corporation of a
public plaza is null and void because land for public use is outside the commerce of
man and, therefore, the lessee must restore possession of the land by vacating it. As
in this case, in the Rojas case the action was for recovery of possession instituted in
the Court of First Instance, the counterpart of which at present is the Regional Trial
Court. We, therefore, hold that the respondent judge has jurisdiction of the case
brought against petitioners for recovery of possession of what is alleged to be land
for public use of the respondent municipality. (CA Rollo, pp. 53-54)
Prescinding from the finding that the complaint is for recovery of possession the appellate court
concluded that the trial court did not have authority to issue a writ of possession and a writ of
demolition citing the case of Mabale v.Apalisok (88 SCRA 234 [1979]), to wit:
In that connection, it should be borne in mind that the law specifies when a writ of
possession may be issued. That writ is available (1) in a land registration proceeding,
which is a proceeding in rem (Sec. 17, Act No. 496; Estipona v. Navarro, 69 SCRA
285, 291); (2) in an extra-judicial foreclosure of a realty mortgage (Sec. 7, Act No.
3135); (3) in a judicial foreclosure of mortgage, a quasi in rem proceeding,provided
that the mortgagor is in possession of the mortgaged realty and no third person, not
party to the foreclosure suit, had intervened (Rivera v. Court of First Instance of
Nueva Ecija and Rupac, 61 Phil. 201; Ramos v. Maalac and Lopez, 89 Phil. 270,
275) and (4) in execution sales (last par. of sec. 35, Rule 39, Rules of Court).
The appellate court also ruled that the trial court committed an error when it applied by analogy the
rule on eminent domain (Rule 67, Revised Rules of Court) to justify the issuance of the writ of
possession and writ of demolition. The appellate court pointed out that under this rule:
xxx xxx xxx
. . . (i) There is clear statutory authority for the taking of possession by the
government and (ii) The authority is premised on the government depositing the
value of the land to be taken. For unless the taking of the land is done under these
conditions, the taking would constitute deprivation of property without due process of
law which the Constitution prohibits. (See Manila Railroad Co. v. Paredes, 31 Phil.
118 [1915]) (CA Rollo, p. 55)
The appellate court then stated:
In the case at bar, there is neither statutory authority for the trial court's action nor
bond given to compensate the petitioners for the deprivation of their possession and
the destruction of their houses if it turns out that the land belongs to them. For this
reason, we think the trial courts order is arbitrary and void. For the fact is that
petitioners claim ownership of the land in question and until that question is resolved
either in the case pending before the respondent judge or in the cadastral
proceeding, it would be unjust to deprive petitioners of its possession. (CA Rollo, pp.
55-56)
The petitioners now contend that the allegations in the complaint constitute a cause of action for
abatement of public nuisance under Article 694 of the Civil Code. On the basis of this proposition,
the petitioners assert that petitioner municipality is entitled to the writ of possession and writ of
demolition.
Article 694 of the Civil Code defines nuisance as follows:
Art. 694. A nuisance is any act, omission, establishment, business, condition of
property or anything else which:
xxx xxx xxx
(5) Hinders or impairs the use of property.
while Article 695 provides:
Art. 695 Nuisance is either public or private. A public nuisance affects a community
or neighborhood or any considerable number of persons, although the extent of the
annoyance, danger or damage upon individuals may be unequal. . . .
Applying these criteria, we agree with the petitioners that the complaint alleges factual
circumstances of a complaint for abatement of public nuisance. Thus, the complaint states: that
petitioner municipality is the owner of a parcel of land covered by Presidential Proclamation No 365
which is reserved for a public plaza; that the private respondents by virtue of a contract of lease
entered into by the former mayor occupied a portion of the parcel of land constructing buildings
thereon; that the private respondents refused to vacate the premises despite demands; that the
municipality is constructing a municipal gymnasium in the area financed by
appropriations provided by the national government; and that the appropriations are in danger of
being reverted to the national treasury because the construction had to be stopped in view of the
refusal of the private respondents to vacate the area.
The issue, however, is not the nature of the cause of action alleged in the complaint. The more
important question is whether or not the petitioner municipality is entitled to a writ of possession and
a writ of demolition even before the trial of the case starts.
Article 699 of the Civil Code provides for the following remedies against a public nuisance:
(1) A prosecution under the Penal Code or any local ordinance; or
(2) A civil action; or
(3) Abatement, without judicial proceedings.
The petitioner municipality had three remedies from which to select its cause of action. It chose to
file a civil action for the recovery of possession of the parcel of land occupied by the private
respondents. Obviously, petitioner municipality was aware that under the then Local Government
Code (B.P. Blg. 337) the Sangguniang Bayan has to first pass an ordinance before the municipality
may summarily abate a public nuisance. (Sec. 149(z) (ee).
On the premise that the parcel of land forms part of a public plaza, the petitioners now contend that
the Judge was justified in issuing the writ of possession and writ of demolition.
A public plaza is outside the commerce of man and constructions thereon can be abated summarily
by the municipality. We ruled in the case of Villanueva v. Castaeda, Jr. (154 SCRA 142 [1987]):
Exactly in point is Espiritu v. Municipal Council of Pozorrubio, (102 Phil. 869-870)
where the Supreme Court declared:
There is absolutely no question that the town plaza cannot be used
for the construction of market stalls, specially of residences, and that
such structures constitute a nuisance subject to abatement according
to law. Town plazas are properties of public dominion, to be devoted
to public use and to be made available to the public in general. They
are outside the commerce of man and cannot be disposed of or even
leased by the municipality to private parties.
Applying this well-settled doctrine, we rule that petitioners had no right in the first
place to occupy the disputed premises and cannot insist in remaining there now on
the strength of their alleged lease contracts. They should have realized and accepted
this earlier, considering that even before Civil Case No. 2040 was decided, the
municipal council of San Fernando had already adopted Resolution No. 29, series of
1964, declaring this area as the parking place and public plaza of the municipality.
It is the decision in Civil Case No. 2040 and the said resolution of the municipal
council of San Fernando that respondent Macalino was seeking to enforce when he
ordered the demolition of the stalls constructed in the disputed area. As officer-in-
charge of the office of the mayor, he had the duty to clear the area and restore it to
its intended use as a parking place and public plaza of the municipality of San
Fernando, conformably to the aforementioned orders from the court and the council.
It is, therefore, not correct to say that he had acted without authority or taken the law
into his hands in issuing his order.
xxx xxx xxx
The Court observes that even without such investigatiom and recommendation, the
respondent mayor was justified in ordering the area cleared on the strength alone of
its status as a public plaza as declared by the judicial and legislative authorities. . . .
If, therefore, the allegations in the complaint are true and that the parcel of land being occupied by
the private respondents is indeed a public plaza, then the writ of possession and writ of demolition
would have been justified. In fact, under such circumstances, there would have been no need for a
writ of possession in favor of the petitioner municipality since the private respondents' occupation
over the subject parcel of land can not be recognized by any law. A writ of demolition would have
been sufficient to eject the private respondents.
However, not only did the municipality avoid the use of abatement without judicial proceedings, but
the status of the subject parcel of land has yet to be decided.
We have to consider the fact that Proclamation No. 365 dated March 15, 1968 recognizes private
rights which may have been vested on other persons, to wit:
BY THE PRESIDENT OF THE PHILIPPINES
PROCLAMATION NO. 365
RESERVING FOR SCHOOL SITE, PUBLIC PLAZA AND PLAYGROUND
PURPOSES CERTAIN PARCELS OF LAND OF THE PUBLIC DOMAIN SITUATED
IN THE MUNICIPALITY OF DUMINGAG, PROVINCE OF ZAMBOANGA DEL SUR,
ISLAND OF MINDANAO.
Upon recommendation of the Secretary of Agriculture and Natural Resources and
pursuant to the authority vested in me by law, I FERDINAND E. MARCOS,
PRESIDENT OF THE PHILIPPINES, do hereby withdraw from sale or settlement
and under the administration of the Director of Public Schools administration of the
Municipal Government of Dumingag, subject to private rights, if any there be, certain
parcels of land of the public domain situated in the Municipality of Dumingag,
Province of Zamboanga del Sur, Island of Mindanao, . . . (CA Rollo, pp. 41-A 42)
(Emphasis supplied).
It is to be noted that even before the Proclamation, the parcel of land was the subject of cadastral
proceedings before another branch of the Regional Trial Court of Zamboanga del Sur. At the time of
the filing of the instant case, the cadastral proceedings intended to settle the ownership over the
questioned portion of the parcel of land under Proclamation No. 365 were still pending. One of the
claimants in the cadastral proceedings is private respondent Vicente Medina who traced his
ownership over the subject parcel of land as far back as 1947 when he allegedly bought the same
from a Subanan native.
Under the cadastral system, the government through the Director of Lands initiates the proceedings
by filing a petition in court after which all owners or claimants are compelled to act and present their
answers otherwise they lose their right to their own property. The purpose is to serve the public
interests by requiring that the titles to any lands "be settled and adjudicated." (Section 1 Cadastral
Act [No. 22593] Government of the Philippine Islands v. Abural, 39 Phil. 996 [1919]. It is a
proceeding in rem somewhat akin to a judicial inquiry and investigation leading to a judicial decree.
(Director of Lands v. Roman Archbishop of Manila, 41 Phil. 120 [1920])
Considering therefore, the nature and purpose of the Cadastral proceedings, the outcome of said
proceedings becomes a prejudicial question which must be addressed in the resolution of the instant
case. We apply by analogy the ruling in the case of Quiambao v. Osorio (158 SCRA 674 [1988]), to
wit:
The instant controversy boils down to the sole question of whether or not the
administrative case between the private parties involving the lot subject matter of the
ejectment case constitutes a prejudicial question which would operate as a bar to
said ejectment case.
A prejudicial question is understood in law to be that which arises in a case the
resolution of which is a logical antecedent of the issue involved in said case and the
cognizance of which pertains to another tribunal. (Zapanta v. Montesa, 4 SCRA 510
[1962]; People v. Aragon, 50 O.G. No. 10, 4863) The doctrine of prejudicial question
comes as in to play generally in a situation where civil and criminal actions are
pending and the issues involved in bath cases are similar or so closely-related that
an issue must be pre-emptively resolved in the civil case before the criminal action
can proceed. Thus, the existence it a prejudicial question in a civil case is alleged in
the criminal case to cause the suspension of the latter pending final determination of
the former.
The essential elements of a prejudicial question as provided under Section 5, Rule
111 of the Revised Rules of Court area: [a] the civil action involves an issue similar
or intimately related to the issue in the criminal action; and [b] the resolution of such
issue determines whether or not the criminal action may proceed.
The actions involved in the case at bar being respectively civil and administrative in
character, it is obvious that technically, there is no prejudicial question to speak of.
Equally apparent, however, is the intimate correlation between said two [2]
proceedings, stemming from the fact that the right of private respondents to eject
petitioner from the disputed portion depends primarily on the resolution of the
pending administrative case. For while it may be true that private respondents had
prior possession of the lot in question, at the time of the institution of the ejectment
case, such right of possession had been terminated, or at the very least, suspended
by the cancellation by the Land Authority of the Agreement to Sell executed in their
favor. Whether or not private respondents can continue to exercise their right of
possession is but a necessary, logical consequence of the issue involved in the
pending administrative case assailing the validity of the cancellation of the
Agreement to Sell and the subsequent award of the disputed portion to petitioner. If
the cancellation of the agreement, to Sell and the subsequent award to petitioner are
voided, then private respondent's right of possession is lost and so would their right
to eject petitioner from said portion.
Faced with these distinct possibilities, the more prudent course for the trial court to
have taken is to hold the ejectment proceedings in abeyance until after a
determination of the administrative case. Indeed, logic and pragmatism, if not
jurisprudence, dictate such move. To allow the parties to undergo trial
notwithstanding the possibility of petitioner's right of possession being upheld in the
pending administrative case is to needlessly require not only the parties but the court
as well to expend time, effort in what may turn out to be a sheer exercise in futility.
Thus, 1 Am Jur 2d
tells us:
The court in which an action is pending may, in the exercise of a
sound discretion, upon proper application for a stay of that action,
hold the action in abeyance to abide the outcome of another pending
in another court, especially where the parties and the issues are the
same, for there is power inherent in every court to control the
disposition of causes an its dockets with economy of time and effort
for itself, for counsel, and for litigants. Where the rights of parties in
the record action cannot be properly determined until the questions
raised in the first action are settled the second action should be
stayed.
While this rule is properly applicable to instances involving two [2] court actions, the
existence in the instant case of the same considerations of identity of parties and
issues, economy of time and effort for the court, the counsels and the parties as well
as the need to resolve the parties' right of possession before the ejectment case may
be properly determined, justifies the rule's analogous application to the case at bar.
Technically, a prejudicial question shall not rise in the instant case since the two actions involved are
both civil in nature. However, we have to consider the fact that the cadastral proceedings will
ultimately settle the real owner/s of the disputed parcel of land. In case respondent Vicente Medina
is adjudged the real owner of the parcel of land, then the writ of possession and writ of demolition
would necessarily be null and void. Not only that. The demolition of the constructions in the parcel of
land would prove truly unjust to the private respondents.
Parenthetically, the issuance of the writ of possession and writ of demolition by the petitioner Judge
in the ejectment proceedings was premature. What the petitioner should have done was to stop the
proceedings in the instant case and wait for the final outcome of the cadastral proceedings.
At any rate, affirmative relief based an the above discussions is no longer possible. The demolition
of the buildings owned by the private respondents is now a fait accompli.
In the case of Estate of Gregoria Francisco v. Court of Appeals (199 SCRA 595 [1991] we awarded
just compensation the amount of which was for the trial court to determine in favor of the petitioner
whose building was demolished by the municipality even before a proper tribunal could decide
whether or not the building constituted a nuisance in law. Our ruling was premised on the ground
that the owner of the building was in lawful possession of the lot and the building by virtue of the
permit from the authorized government agency when the demolition was effected.
We cannot, however, apply this ruling to the present case. The legality of the occupation by the
private respondents of the subject parcel of land is still to be resolved in the cadastral proceedings.
In the event that respondent Vicente Medina is declared owner of the subject parcel of land,
necessarily, the private respondents would be entitled to just compensation for the precipitate
demolition of their buildings. On the other hand, if private respondent Medina is declared to have no
rights over the subject parcel of land then, the private respondents would not be entitle to any
compensation for the demolition of their buildings. In such a case the private respondents are
considered squatters and therefore, the demolition of their buildings would turnout to have been
justified.
Faced with these alternative possibilities, and in the interest of justice, we rule that the petitioner
municipality must put up a bond to be determined by the trial court to answer for just
compensation to which the private respondents may be entitled in case the demolition of their
buildings is adjudged to be illegal.
Moreover, the appellate court correctly ruled this Rule 67 of the Revised Rules of Court on eminent
domain can not be made a subterfuge to justify the petitioner Judge's issuance of a writ of
possession in favor of petitioner municipality. In the recent case of National Power Corporation
v. Hon. Enrique T. Jocson, et al. (G.R. No. 94193-99, February 25, 1992) we said:
In Municipality of Bian v. Hon. Jose Mar Garcia, et al. (180 SCRA 576 [1989]) this
Court ruled that there are two (2) stages in every action of expropriation:
The first is concerned with the determination of the authority of the
plaintiff to exercise the power of eminent domain and the propriety of
its exercise in the content of the facts involved in the suit. (Citing
Sections 1, 2 and 3, Rule 67 of the Rules of Court.) It ends with an
order, if not of dismissal of the action, "of condemnation declaring
that the plaintiff has a lawful right to take the property sought to be
condemned, for the public use or purpose described in the complaint,
upon the payment of just compensation to be determined as of the
date of the filing of the complaint." (Citing Section 4, Rule 67; Nieto v.
Isip, 97 Phil. 31; Benguet Consolidated v. Republic, 143 SCRA
466.)An order of dismissal, if this be ordained, would be a final one,
of course, since it finally disposes of the action and leaves nothing
more to be done by the Court on the merits. (Citing Investments, Inc.
v. Court of Appeals, et al., 147 SCRA 334) So, too, would an order of
condemnation on be a final one, for thereafter as the rules expressly
state, in the proceedings before the Trial Court, "no objection to the
exercise of the right of condemnation (or the propriety thereof) shall
be filed or heard.
The second phase of the eminent domain action is concerned with
the determination to the Court of "the just compensation in for the
property sought to be taken." This is done by the Court with the
assistance of not more than three (3) commissioners (Citing Sections
5 to 8, Rule 67 of the Rules of Court) The order fixing the just
compensation on the basis of the evidence before, and findings of,
the commissioners would be final, too. It would finally dispose of the
second stage of the suit, and leave nothing more to be done by the
Court regarding the issue. . . .
However, upon the filing of the complaint or at any time thereafter, the petitioner has
the right to take enter upon the possession of the property involved upon compliance
with P.D. No. 42 which requires the petitioner, after due notice to the defendant, to
deposit with the Philippine National Bank in its main office or any of its branches or
agencies, "an amount equivalent to the assessed value of the property for purposes
of taxation." This assessed value is that indicated in the tax declaration.
Hence, even if we concede that Rule 67 is applicable to the instant case and that petitioner
municipality had the lawful right to eject the private respondents from the subject parcel of land the
issuance of a writ of possession in favor of petitioner municipality would still not be legal if the
petitioner municipality really owns the land. The Judge did not require petitioner municipality to
deposit an amount equivalent to the just compensation due the private respondents as provided for
under Presidential Decree 42. It is only after the deposit of the just compensation that petitioner
municipality would be entitled to a writ of possession.
Another point raised by the petitioners questions the alleged ruling of the appellate court "that the
petitioners are personally liable for damages to the private respondents for the abatement of public
nuisance." (Rollo, p. 50)
The petitioners misread the appellate court's decision. The records show Chat the private
respondents prayed for, in their petition for certiorari filed with the appellate court, among others:
It is likewise, prayed that respondents be ordered to pay jointly and severally the
value of the house illegally demolished in the amount of P1,000.00 00, attorney's
fees in the amount of P50,000.00, moral damages in the amount of P100,000.00 and
exemplary damages in the amount of P50,000.00, to pay the costs, . . .
xxx xxx xxx
(CA Rollo, p. 6)
In response to this prayer, however, the appellate court stated:
We do not, however, have jurisdiction over petitioners' claim for damages. This must
be pursued in an appropriate action instituted in the Regional Trial Court. (Rollo, p.
26)
Moreover, the dispositive portion of the decision does not mention any personal liability for damages
against the petitioners. The apprehension of the petitioners lacks factual basis.
WHEREFORE, the instant petition is DISMISSED. The questioned decision and resolution of the
Court of Appeals are AFFIRMED. The trial court is ordered to require the petitioner municipality to
put up a bond to be determined by the court after hearing to answer, for just compensation due the
private respondents in case the demolition of their buildings is adjudged to be illegal. The "Motion to
Declare in Contempt" filed by petitioner Judge is referred to the Regional Trial Court of Pagadian
City, Branch 18 in Civil Case No. 3156 for appropriate action.
SO ORDERED.
HRS. OF SPS. LUCIANO and G.R. No. 157972
CONSOLACION VENTURILLO,
Represented by ROWENA B. Present:
VENTURILLO-SUCALDITO,
Petitioners, QUISUMBING, J.,
Chairperson,
CARPIO,
CARPIO MORALES,
- versus - TINGA, and
VELASCO, JR., JJ.


HON. JESUS V. QUITAIN, Promulgated:
Presiding Judge, RTC-Br. 15,
11
th
Judicial Region, Davao City and October 30, 2006
ENGR. MEINRADO R. METRAN,
City Engineer and Building Official of
The City of Davao,
Respondents.

x----------------------------------------------------------------------------x


D E C I S I O N

TINGA, J.:


The Heirs of Spouses Luciano and Consolacion Venturillo (Heirs
of Venturillo), represented by Rowena B. Venturillo-Sucaldito, assail for having
been issued with grave abuse of discretion the Order
[1]
dated April 22, 2003 of the
Regional Trial Court of Davao City, Branch 15, which dismissed their petition for
mandamus and denied their prayer for injunctive relief.

The following statement of facts is taken from the Courts
Resolution
[2]
dated May 15, 2003:

Sometime in 1942, the
Spouses Luciano and Consolacion Venturillo occupied a 678-square
meter lot in Poblacion, Davao City, said lot being public
land. The Venturillo couple erected a house on the said property and
begot 11 children, the petitioners herein, during their lifetime.

In 1974, the Davao City Assessors Office directed
the Venturillos to file a Tax Declaration. They complied with the said
directive and paid the required taxes. The petitioners then continued the
renewal of the tax declarations and paying of taxes.

Sometime in 2000, Rowena Venturillo-Sucaldito filed a sales
application with the Department of Environment and Natural Resources
(DENR) and the DENR wrote the City Government for its comments
regarding her application. In response, respondent City Engineer sent an
inspection team to check out the property.

On June 8, 2000, the inspectors submitted a report recommending
the approval of Sucalditos application. No immediate action, however,
was taken by respondent City Engineer on the report.

On October 4, 2001, respondent City Engineer asked the
petitioners to secure a building permit for the house erected on the lot,
after it was shown that said structure had no building permit.

The petitioners then hired an engineer who prepared the necessary
plans and other documents, which were submitted to the respondent City
Engineer.

On October 27, 2002, the Sanggunian Barangay of Barangay 4-
A, Poblacion, Davao City passed a resolution requesting
the Sanggunian Panglungsud of Davao City to declare the portion of the
proposed extension of Mayon St., as suppressed road.



On January 8, 2003, respondent City Engineer sent petitioners a
Notice of Order of Removal.

On February 13, 2003, the Zoning Administrator wrote petitioners
that the area they were occupying is a road right-of-way.

On March 20, 2003, the petitioners herein filed a petition for
mandamus with urgent prayer for temporary restraining order (TRO) and
preliminary injunction against respondent City Engineer with the RTC
of Davao City, docketed as SP Civil Case No. 29597-2003. The trial
court granted the temporary restraining order prayed for.

On March 25, 2003, the trial court ordered the parties in a hearing
set for March 27, 2003 to determine whether the TRO should be
extended for 17 days. Said hearing, however, was cancelled at the
manifestation of the respondent City Engineer.

On March 31, 2003, the hearing for the writ of preliminary
injunction was set for April 14-15, 2003.

On April 8, 2003, respondent City Engineer moved for an
extension of time to file his answer to the petition.

On April 15, 2003, the respondent City Engineer manifested in
open court that he was not opposing the application for a writ of
preliminary injunction. The trial court then ordered the petitioners to
submit their formal offer of exhibits to support their application on April
21, 2003 and the City Engineer to comment upon the same within five
days from receipt, after which the trial court would rule upon the
application for injunction.

On April 22, 2003, petitioner moved to have their tardily filed
formal exhibits admitted and submitted their formal offer of
exhibits. That same day, the trial court denied the issuance of the writ of
preliminary injunction and dismissed the SP Civil Case No. 29597-2003.


The Heirs of Venturillo allege that the trial court gravely abused its
discretion when it dismissed their petition for mandamus and denied their prayer
for injunction without: (1) ruling on the admissibility of their admittedly tardy
formal offer of exhibits; (2) waiting for respondent City Engineers comment or
objection to said formal offer; and (3) without waiting for the answer of the City
Engineer in the mandamus case.

In the afore-cited Resolution dated May 15, 2003, the Court, ruling that there
is a need to maintain the last, actual, peaceable, and uncontested state of things
which preceded the present controversy, directed the parties to maintain the status
quo.

The Office of the City Legal Officer filed a Comment
[3]
dated July 31,
2003 on behalf of respondent City Engineer Meinrado R. Metran, contending that
the trial courts dismissal of the petition for mandamus and denial of the prayer for
injunction do not constitute grave abuse of discretion. According to respondent,
the Heirs of Venturillo were not able to establish any legal right to demand the
issuance of a building permit because the lot on which their structure was
constructed remains to be public land delineated as a road right-of-way. Although
the Heirs of Venturillo filed a sales application with the DENR, their application
was not processed.

Moreover, the Heirs of Venturillo allegedly failed to comply with the
indispensable requirement of filing a motion for reconsideration before they sought
recourse to this Court via a petition for certiorari. Neither did they file an appeal of
the trial courts final Order.

The Heirs of Venturillo filed a Reply
[4]
dated December 15, 2003 reiterating
their arguments.

In the Resolution
[5]
dated May 19, 2004, the parties were required to file
their respective memoranda. Thus, respondent filed a Memorandum
[6]
dated July
15, 2004, while the Heirs of Venturillo filed their Memorandum
[7]
on September
21, 2004.

The general rule is that the remedy to obtain reversal or modification of a
judgment on the merits is appeal. This is true even if the error ascribed to the court
which rendered judgment is its lack of jurisdiction over the subject matter, or the
exercise of power in excess thereof, or grave abuse of discretion in the findings of
fact or of law set out in the decision.
[8]


In this case, the Heirs of Venturillo received the assailed Order of the trial
court on April 25, 2003. They therefore had 15 days from this date, or until May
10, 2003, within which to file an appeal to the Court of Appeals under Rule 41 of
the 1997 Rules of Civil Procedure (Rules of Court) or a petition for review on
certiorari to this Court under Rule 45 of the same rules. However, in the guise of
availing of a petition for certiorari under Rule 65 of the Rules of Court, the Heirs
of Venturillo filed their petition only on May 12, 2003. It is axiomatic that the
special civil action of certiorari cannot be used as a substitute for the lost or lapsed
remedy of appeal.
[9]


Even assuming that the Heirs of Venturillo have a cause of action ripe for
the extraordinary writ of certiorari, they clearly disregarded the hierarchy of courts
when they directly filed their petition with this Court without adducing any special
and important reason or exceptional or compelling circumstance for such a
recourse. Considering that the special civil action of certiorari under Rule 65 of
the Rules of Court is within the concurrent original jurisdiction of the Supreme
Court and the Court of Appeals, the petition should have been initially filed in the
Court of Appeals in strict observance of the doctrine on the hierarchy of courts.
[10]


Moreover, the Heirs of Venturillo failed to file a motion for reconsideration
of the trial courts Order, depriving the latter of the opportunity to correct whatever
error it may have committed. Rule 65 of the Rules of Court requires that petitioner
be left with no appeal, nor any plain, speedy, and adequate remedy in the ordinary
course of law.
[11]


A motion for reconsideration is a plain, speedy, and adequate remedy. The
filing thereof is a condition precedent in order that a petition for certiorari may be
given due course.
[12]
Although there are certain recognized exceptions to this rule,
such as where the order is a patent nullity for lack of jurisdiction on the part of the
court which rendered it, or where the questions raised in the certiorari proceeding
have been duly raised and passed upon in the lower court,
[13]
we find no such
exception in this case which would warrant a departure from the rule.

Regional Trial Courts are fully clothed with jurisdiction to issue writs of
certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction
which may be enforced in any part of their respective regions. Moreover, the
question of whether it should have first ruled on the admissibility of the tardy
formal offer of exhibits filed by the Heirs of Venturillo, and waited for
respondents comment or objection to said formal offer and answer in the
mandamus case, were not raised and passed upon by the trial court precisely
because the Heirs of Venturillo failed to file a motion for reconsideration. Had
they done so, the trial court would have been given the opportunity to correct any
factual or fancied error attributed to it by way of re-examination of the legal and
factual aspects of the case.

These procedural errors, notwithstanding, and in the interest of finally
disposing of this case, we reviewed its merits and found that indeed grave abuse of
discretion attended the issuance of the assailed Order of the trial court.

The remedy of mandamus lies to compel the performance of a ministerial
duty.
[14]
A purely ministerial act or duty, in contradistinction to a discretionary act,
is one which an officer or tribunal performs in a given state of facts, in a prescribed
manner, in obedience to the mandate of legal authority, without regard to or the
exercise of his own judgment, upon the propriety or impropriety of the act done. If
the law imposes a duty upon a public officer, and gives him the right to decide how
or when the duty shall be performed, such duty is discretionary and not
ministerial.
[15]


The issuance of a building permit may be considered a ministerial duty only
when the application and the plans are in conformity with the requirements of
zoning and land use, lines and grades, structural design, sanitary and sewerage,
environmental health, electrical and mechanical safety as well as with other rules
and regulations promulgated in accordance with the provisions of the National
Building Code.
[16]


In this case, the Heirs of Venturillo complied with all the requirements for
the procurement of a building permit enumerated under the National Building
Code, such as the description of the work to be covered by the permit applied for;
description and ownership of the lot on which the proposed work is to be done; the
use or occupancy for which the proposed work is intended; estimated cost of the
proposed work; and the plans and specifications prepared, signed and sealed by a
duly licensed engineer.
[17]
They also paid the requisite fees for the application.
[18]


Having done so, it became incumbent upon respondent City Engineer to
issue the building permit applied for. His refusal to perform an act which the law
enjoins him to do, upon the full compliance by the Heirs of Venturillo of the
conditions provided under the law, entitles the latter to the writ of mandamus
prayed for.

By the same token, the Heirs of Venturillo are entitled to a writ of injunction
to prevent the threatened summary demolition of their residence. The requisites
for an injunctive writ to issue are that: (1) the petitioner/applicant must have a clear
and unmistakable right; (2) there is a material and substantial invasion of such
right; and (3) there is an urgent and permanent necessity for the writ to prevent
serious damage.
[19]


Respondent City Engineers refusal to issue the building permit and
concomitant order for the Heirs of Venturillo to cause the demolition of their house
or else the same shall be summarily demolished
[20]
are premised on the fact that the
house which the Heirs of Venturillo intended to refurbish stands in the middle of
the proposed extension of Mt. Mayon Street, an area which had been declared as a
road right-of-way by the City Government.

It should be emphasized, however, that the Heirs of Venturillo, through their
parents, have continuously possessed and occupied the land on which the house
sought to be refurbished stands since 1942. This possession was with the tacit
consent and authorization of the City Government. In fact, the City Assessors
Office directed the Venturillosto file tax declarations and pay real property taxes
thereon which they have consistently complied with.

In Estate of Gregoria Francisco v. Court of Appeals,
[21]
the municipal mayor
of Isabela, Basilan ordered the summary demolition, without judicial authority, of
a quonsetbuilding which stood on a lot owned by the Philippine Ports
Authority. The municipal mayor justified the demolition as an exercise of police
power and for reasons of health, safety and general welfare.

The Court awarded just compensation the amount of which was for the trial
court to determine in favor of the petitioner whose building was demolished by the
municipality even before a proper tribunal could decide whether or not the building
constituted a nuisance in law. The ruling was premised on the ground that the
owner of the building was in lawful possession of the lot and the building by virtue
of the permit from the authorized government agency when the demolition was
affected.

In the same vein, by virtue of the City Governments tacit consent, the Heirs
of Venturillo are not squatters on public land but are in lawful possession thereof,
including the house subject of the summary demolition order of respondent City
Engineer. The Heirs of Venturillo have a clear and unmistakable legal right not to
be disturbed in their lawful possession of the property unless the proper judicial
tribunal has determined that the same constitutes a nuisance in law.

The trial court should have issued an injunctive writ to prevent the imminent
threat of summary demolition of the Heirs of Venturillos residence without
judicial proceedings. That it failed to safeguard petitioners right to due process
constitutes grave abuse of discretion.

WHEREFORE, the instant petition is GRANTED. The Order dated April
22, 2003 of the Regional Trial Court of Davao City, Branch 15, is ANNULLED
and SET ASIDE. The public respondent City Engineer of Davao City is
DIRECTED to issue in favor of petitioners the building permit applied for. He is
further ORDERED to CEASE and DESIST from enforcing the Order of Removal
dated January 8, 2003. No pronouncement as to costs.

SO ORDERED.

AMELIA CABRERA, G.R. No. 129098
Petitioner,
Present:

QUISUMBING, J.,
- versus - Chairperson,
CARPIO,
CARPIO MORALES,
TINGA, and
MANUEL LAPID, FERNANDO VELASCO, JR., JJ.
BALTAZAR, REYNALDO F.
CABRERA and DIONY VENTURA,
Respondents. Promulgated:

December 6, 2006

x-------------------------------------------------------------------x


D E C I S I O N

TINGA, J.:


The instant petition for review on certiorari seeks the reversal of the
Resolution
[1]
dated 13 May 1996 and the Order
[2]
dated 21 March 1997, both issued
by the Office of the Ombudsman. The Resolution dismissed the complaint-
affidavit filed by petitioner against respondents and the Order denied her motion
for reconsideration.


The instant petition originated from a Complaint-Affidavit
[3]
filed in
November 1995 by petitioner Amelia M. Cabrera with the Office of the
Ombudsman (Ombudsman). Named respondents were Manuel Lapid, Fernando
Baltazar, Reynaldo F. Cabrera and Superintendent Diony Ventura, respectively, in
their capacities as Governor of Pampanga, Mayor of Sasmuan, Pampanga, Vice-
Mayor of Sasmuan, Pampanga and Superintendent of the Philippine National
Police (PNP)-Region 3, Pampanga. In her three(3)-page affidavit, petitioner
accused respondents of violating Section 3(e) of the Anti-Graft and Corrupt
Practices Act and Article 324 of the Revised Penal Code.

In her Complaint-Affidavit, petitioner stated that she entered into a lease
agreement with the Municipality of Sasmuan over a tract of land for the purpose of
devoting it to fishpond operations. According to petitioner, she had spent
approximately P5,000,000.00 for its construction before the fishpond operations
commenced in August 1995. A month later, petitioner learned from newspaper
reports of the impending demolition of her fishpond as it was purportedly illegal
and blocked the flow of the Pasak River. Thus, petitioner sent the fishpond
administrator to dissuade respondents from destroying her property.
[4]


Despite pleas from petitioner, respondents ordered the destruction of
petitioners fishpond. The property was demolished on 10 October 1995 by
dynamite blasting. Petitioner alleged that the demolition was purposely carried out
in the presence of media representatives and other government officials to gain
media mileage. Petitioner imputed evident bad faith on respondents Mayor
Baltazar and Vice-Mayor Cabrera in allowing the destruction of the fishpond
despite their prior knowledge of the existence of the lease agreement. She also
charged respondents Governor Lapid and Senior Superintendent Ventura with
gross inexcusable negligence for ordering the destruction of the fishpond without
first verifying its legality.
[5]


At the preliminary investigation, respondents, except Senior Superintendent
Ventura, submitted counter-affidavits, denying the accusations against them. In the
counter-affidavit jointly filed by Mayor Baltazar and Vice-Mayor Cabrera, they
insisted that contrary to petitioners claim, the fishpond was an illegal structure
because it was erected on the seashore, at the mouth of the Pasak River, and sat on
an inalienable land. They claimed that the demolition was done by the Task
Force Bilis Daloy upon the directive of then President Fidel V. Ramos.
[6]


In his Counter-Affidavit,
[7]
Governor Lapid averred that the contract of lease
between petitioner and the Municipality of Sasmuan, represented by then Mayor
Abelardo Panlaqui, was executed two weeks before respondent Mayor Baltazar
took his oath of office in 1995. Governor Lapid also argued that under the law, the
Department of Agriculture (DA) is the government agency authorized to enter into
licensing agreements for fishpond operations, and as per certification by the DA
Regional Director, petitioners fishpond operation was not covered by a fishpond
lease agreement or application. Governor Lapid also referred to the certification by
the Municipal Health Officer of Sasmuan issued before the actual demolition of the
fishpond, describing it as a nuisance per se and recommending its abatement.
[8]


On 13 May 1996, the Ombudsman issued the assailed Resolution,
dismissing petitioners complaint. The dismissal was based on the declaration that
the fishpond was a nuisance per se and, thus, may be abated by respondents in the
exercise of the police power of the State.
[9]


Petitioner sought reconsideration of the Resolution, arguing that under Sec.
149 of Republic Act (R.A.) No. 7160, otherwise known as the Local Government
Code of 1991, the exclusive authority to grant fishery privileges is vested in the
municipalities. Petitioner also questioned the certification by the Municipal Health
Officer, alleging that the same was issued before the ocular inspection of the
property which took place only on the day of the demolition. Petitioner also
contended that a judicial proceeding was necessary to determine whether the
property indeed had caused the flooding.
[10]
Respondents filed separate oppositions
to petitioners motion for reconsideration.
[11]
Petitioner filed a reply to the
opposition
[12]
and respondent Governor Lapid filed a rejoinder to the reply.
[13]


In the Order dated 21 March 1997, the Ombudsman affirmed its 13 May
1996 Resolution. It ruled that the repealing clause of R.A. No. 7160 expressly
repealed only Sec. 2, 6 and 29 of Presidential Decree (P.D.) No. 704 so that in
harmonizing the remaining provisions of P.D. No. 704 and the provisions of R.A.
No. 7160 applicable to the grant of fishery privileges, the Bureau of Fisheries and
Aquatic Resources (BFAR) is the government agency authorized to grant fishpond
license or permit in areas not identified as municipal waters or not declared as
alienable or disposable by the Department of Environment and Natural Resources
(DENR). Since it appears from DENR records that the subject property has not
been declared disposable or included in areas devoted for fishpond development,
the Ombudsman concluded that the lease agreement entered into by petitioner was
void ab initio. In view of the illegality of the lease agreement, the Ombudsman
ruled that its demolition was justified. The Ombudsman described the demolition
as a valid exercise of police power and in accordance with the provision of Sec. 28
of P.D. No. 704 directing the removal of any fishpen or fishpond that obstructed
the free navigation of a stream or lake. It also upheld the authority of the district
health officer to determine the abatement of a nuisance without need of judicial
proceedings.
[14]


Petitioner elevated the matter to this Court via a petition for review on
certiorari under Rule 45 of the Rules of Court to assail the 13 May 1996 Resolution
and 21 March 1997 Order of the Ombudsman. Petitioner subsequently filed an
amended petition for review on certiorari to implead the Ombudsman as
respondent, although in a petition for review on certiorari, the tribunal whose
issuance is assailed need not be impleaded as respondent.

The petition imputes the following errors on the Ombudsman:

I.

THE OFFICE OF THE OMBUDSMAN ERRED AND EXCEEDED ITS
AUTHORITY IN RULING THAT THE LEASE CONTRACT BETWEEN
THE MUNICIPALITY OFSASMUAN AND PETITIONER IS NULL AND
VOID.

II.

THE OFFICE OF THE OMBUDSMAN ERRED IN RULING THAT
THE DEMOLITION OF THE FISHPOND WAS VALIDLY MADE BY
VIRTUE OF THE DECLARATION BY THE HEALTH OFFICER THAT IT
WAS A NUISANCE PER SE.

III.

THE OFFICE OF THE OMBUDSMAN ERRED IN RULING THAT
THE DEMOLITION IS PART OF THE PROPER EXERCISE OF THE POLICE
POWER OF THE STATE.

IV.

THE OFFICE OF THE OMBUDSMAN ERRED IN RULING THAT
PETITIONER WAS GIVEN DUE NOTICE AND HEARING BEFORE THE
FISHPOND WAS BLASTED.


V.

THE OFFICE OF THE OMBUDSMAN ERRED IN RULING THAT
PROBABLE CAUSE DOES NOT EXIST TO INDICT RESPONDENTS FOR
VIOLATION OF THE SUBJECT OFFENSES.
[15]


Clearly, this is an appeal from the questioned issuances of the Ombudsman.
However, such direct resort to this Court from a resolution or order of the
Ombudsman is not sanctioned by any rule of procedure.

Neither can petitioner avail of Sec. 27
[16]
of R.A. No. 6770, otherwise known
as The Ombudsman Act of 1989. The provision allowed direct appeals in
administrative disciplinary cases from the Office of the Ombudsman to the
Supreme Court. The right to appeal is granted only in respect to orders or decisions
of the Ombudsman in administrative cases.
[17]
The provision does not cover
resolutions of the Ombudsman in criminal cases. More importantly, Sec. 27 of
R.A. No. 6770 insofar as it allowed a direct appeal to this Court was declared
unconstitutional in Fabian v. Hon. Desierto.
[18]


However, an aggrieved party in criminal actions is not without any
recourse. Where grave abuse of discretion amounting to lack or excess of
jurisdiction taints the findings of the Ombudsman on the existence of probable
cause, the aggrieved party may file a petition for certiorari under Rule 65.
[19]
The
remedy from resolutions of the Ombudsman in preliminary investigations of
criminal cases is a petition for certiorari under Rule 65, not a petition for review on
certiorari under Rule 45.
[20]


But in this case, petitioner has taken the position that the Ombudsman has
decided questions of substance contrary to law and the applicable decisions of the
Supreme Court. That is a ground under a Rule 45 petition. Indeed, from a reading
of the assignment of errors, it is clear that petitioner does not impute grave abuse
of discretion to the Ombudsman in issuing the assailed Resolution and Order.
Rather, she merely questions his findings and conclusions. As stated earlier, direct
appeal to the Supreme Court via a petition for review on certiorari is not
sanctioned by any rule of procedure. By availing of a wrong remedy, the petition
should be dismissed outright.





Even if the Court treats the instant appeal as a petition for certiorari under
Rule 65, its dismissal is nevertheless warranted because petitioner failed to present,
much more substantiate, any grave abuse of discretion on the part of the
Ombudsman.

A careful reading of the questioned Resolution reveals that the Ombudsman
dismissed petitioners criminal complaint because respondents had validly resorted
to the police power of the State when they effected the demolition of the illegal
fishpond in question following the declaration thereof as a nuisance per se. Thus,
the Ombudsman was of the opinion that no violation of Section 3(e)
[21]
of the Anti-
Graft and Corrupt Practices Act or of Article 324
[22]
of the Revised Penal Code was
committed by respondents. In the words of the Ombudsman, those who
participated in the blasting of the subject fishpond were only impelled by their
desire to serve the best interest of the general public; for the good and the highest
good.
[23]




By grave abuse of discretion is meant capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction. Mere abuse of discretion is not
enough. It must be grave abuse of discretion as when the power is exercised in an
arbitrary or despotic manner by reason of passion or personal hostility, and must be
so patent and so gross as to amount to an evasion of a positive duty or to a virtual
refusal to perform the duty enjoined or to act at all in contemplation of law.
[24]


Grave abuse of discretion should be differentiated from an error in
judgment. An error of judgment is one which the court may commit in the exercise
of its jurisdiction, and which error is reversible only by an appeal. As long as the
court acts within its jurisdiction, any alleged errors committed in the exercise of its
discretion will amount to nothing more than mere errors of judgment, correctible
by an appeal or a petition for review under Rule 45 of the Rules of Court. An error
of jurisdiction is one where the act complained of was issued by the court without
or in excess of jurisdiction and which error is correctible only by the extraordinary
writ of certiorari.
[25]


The other errors raised by petitioner pertain to the Ombudsmans opinion on
the lack of probable cause to indict respondents. These are purported errors in
judgment which can be corrected by an appeal, although not via a direct appeal to
this Court. Direct resort to this Court may be had only through the extraordinary
writ of certiorari and upon showing that the Ombudsman committed grave abuse of
discretion, which petitioner failed to demonstrate.


Absent any grave abuse of discretion tainting it, the courts will not interfere
with the Ombudsmans supervision and control over the preliminary investigation
conducted by him.
[26]
It is beyond the ambit of this Court to review the exercise of
discretion of the Ombudsman in prosecuting or dismissing a complaint filed before
it.
[27]
The rule is based not only upon respect for the investigatory and prosecutory
powers granted by the Constitution to the Office of the Ombudsman but upon
practicality as well. Otherwise, the functions of the courts will be grievously
hampered by innumerable petitions assailing the dismissal of investigatory
proceedings conducted by the Office of the Ombudsman with regard to complaints
filed before it, in much the same way that the courts would be extremely swamped
if they would be compelled to review the exercise of discretion on the part of the
fiscals or prosecuting attorneys each time they decide to file an information in
court or dismiss a complaint by a private complainant.
[28]





WHEREFORE, the instant petition for review on certiorari is DENIED. No
costs.

SO ORDERED.

EMILIO
GANCAYCO,
Petitioner,

- versus -

CITY GOVERNMENT OF QUEZON
CITY AND
METRO MANILADEVELOPMENT
AUTHORITY,
Respondents.

x-----------------------------------------------x
METRO MANILA DEVELOPMENT
AUTHORITY,
Petitioner,





-versus-






JUSTICE EMILIO A. GANCAYCO
(Retired),
Respondent,

x-----------------------------------------x

G.R. No. 177807










G.R. No. 177933

Present:

CORONA, C.J.,
CARPIO,
VELASCO, JR.,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,

DEL CASTILLO,

ABAD,
VILLARAMA, JR.,
PEREZ,

MENDOZA,
SERENO,
REYES, and
PERLAS-BERNABE, JJ.

Promulgated:

October 11, 2011
x - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x


DECISION

SERENO, J .:
Before us are consolidated Petitions for Review under Rule 45 of the Rules
of Court assailing the Decision
[1]
promulgated on 18 July 2006 and the
Resolution
[2]
dated 10 May 2007 of the Court of Appeals in CA-G.R. SP No.
84648.
The Facts
In the early 1950s, retired Justice Emilio A. Gancayco bought a parcel of
land located at 746 Epifanio delos Santos Avenue (EDSA),
[3]
Quezon City with an
area of 375 square meters and covered by Transfer Certificate of Title (TCT) No.
RT114558.
On 27 March 1956, the Quezon City Council issued Ordinance No. 2904,
entitled An Ordinance Requiring the Construction of Arcades, for Commercial
Buildings to be Constructed in Zones Designated as Business Zones in the Zoning
Plan of Quezon City, and Providing Penalties in Violation Thereof.
[4]

An arcade is defined as any portion of a building above the first floor
projecting over the sidewalk beyond the first storey wall used as protection for
pedestrians against rain or sun.
[5]

Ordinance No. 2904 required the relevant property owner to construct an
arcade with a width of 4.50 meters and height of 5.00 meters along EDSA, from
the north side ofSantolan Road to one lot after Liberty Avenue, and from one lot
before Central Boulevard to the Botocan transmission line.
At the outset, it bears emphasis that at the time Ordinance No. 2904 was
passed by the city council, there was yet no building code passed by the national
legislature. Thus, the regulation of the construction of buildings was left to the
discretion of local government units. Under this particular ordinance, the city
council required that the arcade is to be created by constructing the wall of the
ground floor facing the sidewalk a few meters away from the property line. Thus,
the building owner is not allowed to construct his wall up to the edge of the
property line, thereby creating a space or shelter under the first floor. In effect,
property owners relinquish the use of the space for use as an arcade for pedestrians,
instead of using it for their own purposes.
The ordinance was amended several times. On 8 August 1960, properties
located at the Quezon City-San Juan boundary were exempted by Ordinance No.
60-4477 from the construction of arcades. This ordinance was further amended by
Ordinance No. 60-4513, extending the exemption to commercial buildings
from Balete Street to Seattle Street. Ordinance No. 6603 dated 1 March
1966 meanwhile reduced the width of the arcades to three meters for buildings
along V. Luna Road, Central District, Quezon City.
The ordinance covered the property of Justice Gancayco. Subsequently,
sometime in 1965, Justice Gancayco sought the exemption of a two-storey building
being constructed on his property from the application of Ordinance No. 2904 that
he be exempted from constructing an arcade on his property.
On 2 February 1966, the City Council acted favorably on Justice Gancaycos
request and issued Resolution No. 7161, S-66, subject to the condition that upon
notice by the City Engineer, the owner shall, within reasonable time, demolish the
enclosure of said arcade at his own expense when public interest so demands.
[6]

Decades after, in March 2003, the Metropolitan Manila Development
Authority (MMDA) conducted operations to clear obstructions along the sidewalk
of EDSA in Quezon City pursuant to Metro Manila Councils (MMC) Resolution
No. 02-28, Series of 2002.
[7]
The resolution authorized the MMDA and local
government units to clear the sidewalks, streets, avenues, alleys, bridges, parks
and other public places in Metro Manila of all illegal structures and
obstructions.
[8]

On 28 April 2003, the MMDA sent a notice of demolition to Justice
Gancayco alleging that a portion of his building violated the National Building
Code of the Philippines(Building Code)
[9]
in relation to Ordinance No. 2904. The
MMDA gave Justice Gancayco fifteen (15) days to clear the portion of the building
that was supposed to be an arcade along EDSA.
[10]

Justice Gancayco did not comply with the notice. Soon after the lapse of the
fifteen (15) days, the MMDA proceeded to demolish the party wall, or what was
referred to as the wing walls, of the ground floor structure. The records of the
present case are not entirely clear on the extent of the demolition; nevertheless, the
fact of demolition was not disputed. At the time of the demolition, the affected
portion of the building was being used as a restaurant.
On 29 May 2003, Justice Gancayco filed a Petition
[11]
with prayer for a
temporary restraining order and/or writ of preliminary injunction before the
Regional Trial Court (RTC) of Quezon City, docketed as Civil Case No. Q03-
49693, seeking to prohibit the MMDA and the City Government of Quezon City
from demolishing his property. In his Petition,
[12]
he alleged that the ordinance
authorized the taking of private property without due process of law and just
compensation, because the construction of an arcade will require 67.5 square
meters from the 375 square meter property. In addition, he claimed that the
ordinance was selective and discriminatory in its scope and application when it
allowed the owners of the buildings located in the Quezon City-San Juan boundary
to Cubao Rotonda, and Balete to Seattle Streets to construct arcades at their option.
He thus sought the declaration of nullity of Ordinance No. 2904 and the payment
of damages. Alternately, he prayed for the payment of just compensation should
the court hold the ordinance valid.
The City Government of Quezon City claimed that the ordinance was a valid
exercise of police power, regulating the use of property in a business zone. In
addition, it pointed out that Justice Gancayco was already barred by estoppel,
laches and prescription.
Similarly, the MMDA alleged that Justice Gancayco could not seek the
nullification of an ordinance that he had already violated, and that the ordinance
enjoyed the presumption of constitutionality. It further stated that the questioned
property was a public nuisance impeding the safe passage of pedestrians. Finally,
the MMDA claimed that it was merely implementing the legal easement
established by Ordinance No. 2904.
[13]

The RTC rendered its Decision on 30 September 2003 in favor of Justice
Gancayco.
[14]
It held that the questioned ordinance was unconstitutional, ruling that
it allowed the taking of private property for public use without just compensation.
The RTC said that because 67.5 square meters out of Justice Gancaycos 375
square meters of property were being taken without compensation for the publics
benefit, the ordinance was confiscatory and oppressive. It likewise held that the
ordinance violated owners right to equal protection of laws. The dispositive
portion thus states:
WHEREFORE, the petition is hereby granted and the Court hereby
declares Quezon City Ordinance No. 2094,
[15]
Series of 1956 to be
unconstitutional, invalid and void ab initio. The respondents are hereby
permanently enjoined from enforcing and implementing the said ordinance, and
the respondent MMDA is hereby directed to immediately restore the portion of
the party wall or wing wall of the building of the petitioner it destroyed to its
original condition.

IT IS SO ORDERED.
The MMDA thereafter appealed from the Decision of the trial court. On 18
July 2006, the Court of Appeals (CA) partly granted the appeal.
[16]
The CA upheld
the validity of Ordinance No. 2904 and lifted the injunction against the
enforcement and implementation of the ordinance. In so doing, it held that the
ordinance was a valid exercise of the right of the local government unit to promote
the general welfare of its constituents pursuant to its police powers. The CA also
ruled that the ordinance established a valid classification of property owners with
regard to the construction of arcades in their respective properties depending on the
location. The CA further stated that there was no taking of private property, since
the owner still enjoyed the beneficial ownership of the property, to wit:
Even with the requirement of the construction of arcaded sidewalks within
his commercial lot, appellee still retains the beneficial ownership of the said
property. Thus, there is no taking for public use which must be subject to just
compensation. While the arcaded sidewalks contribute to the public good, for
providing safety and comfort to passersby, the ultimate benefit from the same still
redounds to appellee, his commercial establishment being at the forefront of a
busy thoroughfare like EDSA. The arcaded sidewalks, by their nature, assure
clients of the commercial establishments thereat some kind of protection from
accidents and other hazards. Without doubt, this sense of protection can be a boon
to the business activity therein engaged.
[17]


Nevertheless, the CA held that the MMDA went beyond its powers when it
demolished the subject property. It further found that Resolution No. 02-28 only
refers to sidewalks, streets, avenues, alleys, bridges, parks and other public places
in Metro Manila, thus excluding Justice Gancaycos private property. Lastly, the
CA stated that the MMDA is not clothed with the authority to declare, prevent or
abate nuisances. Thus, the dispositive portion stated:
WHEREFORE, the appeals are PARTLY GRANTED.
The Decision dated September 30, 2003 of the Regional Trial Court, Branch
224, Quezon City, is MODIFIED, as follows:
1) The validity and constitutionality of Ordinance No. 2094,
[18]
Series of 1956,
issued by the City Council of Quezon City, is UPHELD; and
2) The injunction against the enforcement and implementation of the said Ordinance
is LIFTED.
SO ORDERED.

This ruling prompted the MMDA and Justice Gancayco to file their
respective Motions for Partial Reconsideration.
[19]

On 10 May 2007, the CA denied the motions stating that the parties did not
present new issues nor offer grounds that would merit the reconsideration of the
Court.
[20]

Dissatisfied with the ruling of the CA, Justice Gancayco and the MMDA
filed their respective Petitions for Review before this Court. The issues raised by
the parties are summarized as follows:
I. WHETHER OR NOT JUSTICE GANCAYCO WAS ESTOPPED FROM
ASSAILING THE VALIDITY OF ORDINANCE NO. 2904.
II. WHETHER OR NOT ORDINANCE NO. 2904 IS CONSTITUTIONAL.
III. WHETHER OR NOT THE WING WALL OF JUSTICE GANCAYCOS
BUILDING IS A PUBLIC NUISANCE.
IV. WHETHER OR NOT THE MMDA LEGALLY DEMOLISHED THE
PROPERTY OF JUSTICE GANCAYCO.

The Courts Ruling
Estoppel

The MMDA and the City Government of Quezon City both claim that
Justice Gancayco was estopped from challenging the ordinance, because, in 1965,
he asked for an exemption from the application of the ordinance. According to
them, Justice Gancayco thereby recognized the power of the city government to
regulate the construction of buildings.
To recall, Justice Gancayco questioned the constitutionality of the ordinance
on two grounds: (1) whether the ordinance takes private property without due
process of law and just compensation; and (2) whether the ordinance violates the
equal protection of rights because it allowed exemptions from its application.
On the first ground, we find that Justice Gancayco may still question the
constitutionality of the ordinance to determine whether or not the ordinance
constitutes a taking of private property without due process of law and just
compensation. It was only in 2003 when he was allegedly deprived of his property
when the MMDA demolished a portion of the building. Because he was granted an
exemption in 1966, there was no taking yet to speak of.
Moreover, in Acebedo Optical Company, Inc. v. Court of Appeals,
[21]
we
held:
It is therefore decisively clear that estoppel cannot apply in this case. The
fact that petitioner acquiesced in the special conditions imposed by the City
Mayor in subject business permit does not preclude it from challenging the said
imposition, which is ultra vires or beyond the ambit of authority of respondent
City Mayor. Ultra vires acts or acts which are clearly beyond the scope of
one's authority are null and void and cannot be given any effect. The
doctrine of estoppel cannot operate to give effect to an act which is otherwise
null and void or ultra vires. (Emphasis supplied.)
Recently, in British American Tobacco v. Camacho,
[22]
we likewise held:
We find that petitioner was not guilty of estoppel. When it made the
undertaking to comply with all issuances of the BIR, which at that time it
considered as valid, petitioner did not commit any false misrepresentation or
misleading act. Indeed, petitioner cannot be faulted for initially undertaking to
comply with, and subjecting itself to the operation of Section 145(C), and only
later on filing the subject case praying for the declaration of its unconstitutionality
when the circumstances change and the law results in what it perceives to be
unlawful discrimination.The mere fact that a law has been relied upon in the
past and all that time has not been attacked as unconstitutional is not a
ground for considering petitioner estopped from assailing its validity. For
courts will pass upon a constitutional question only when presented before it
in bona fidecases for determination, and the fact that the question has not
been raised before is not a valid reason for refusing to allow it to be raised
later. (Emphasis supplied.)


Anent the second ground, we find that Justice Gancayco may not question
the ordinance on the ground of equal protection when he also benefited from the
exemption. It bears emphasis that Justice Gancayco himself requested for an
exemption from the application of the ordinance in 1965 and was eventually
granted one. Moreover, he was still enjoying the exemption at the time of the
demolition as there was yet no valid notice from the city engineer. Thus, while the
ordinance may be attacked with regard to its different treatment of properties that
appears to be similarly situated, Justice Gancayco is not the proper person to do
so.
Zoning and the regulation of the
construction of buildings are valid
exercises of police power .
In MMDA v. Bel-Air Village Association,
[23]
we discussed the nature of
police powers exercised by local government units, to wit:
Police power is an inherent attribute of sovereignty. It has been defined as
the power vested by the Constitution in the legislature to make, ordain, and
establish all manner of wholesome and reasonable laws, statutes and ordinances,
either with penalties or without, not repugnant to the Constitution, as they shall
judge to be for the good and welfare of the commonwealth, and for the subjects of
the same. The power is plenary and its scope is vast and pervasive, reaching and
justifying measures for public health, public safety, public morals, and the general
welfare.

It bears stressing that police power is lodged primarily in the National
Legislature. It cannot be exercised by any group or body of individuals not
possessing legislative power. The National Legislature, however, may delegate
this power to the President and administrative boards as well as the lawmaking
bodies of municipal corporations or local government units. Once delegated, the
agents can exercise only such legislative powers as are conferred on them by the
national lawmaking body.
To resolve the issue on the constitutionality of the ordinance, we must first
determine whether there was a valid delegation of police power. Then we can
determine whether the City Government of Quezon City acted within the limits of
the delegation.
It is clear that Congress expressly granted the city government, through the
city council, police power by virtue of Section 12(oo) of Republic Act No. 537, or
the Revised Charter of Quezon City,
[24]
which states:
To make such further ordinances and regulations not repugnant to law as
may be necessary to carry into effect and discharge the powers and duties
conferred by this Act and such as it shall deem necessary and proper to provide
for the health and safety, promote the prosperity, improve the morals, peace, good
order, comfort, and convenience of the city and the inhabitants thereof, and for the
protection of property therein; and enforce obedience thereto with such lawful
fines or penalties as the City Council may prescribe under the provisions of
subsection (jj) of this section.

Specifically, on the powers of the city government to regulate the
construction of buildings, the Charter also expressly provided that the city
government had the power to regulate the kinds of buildings and structures that
may be erected within fire limits and the manner of constructing and repairing
them.
[25]

With regard meanwhile to the power of the local government units to issue
zoning ordinances, we apply Social Justice Society v. Atienza.
[26]
In that case,
the Sangguniang Panlungsod of Manila City enacted an ordinance on 28
November 2001 reclassifying certain areas of the city from industrial to
commercial. As a result of the zoning ordinance, the oil terminals located in those
areas were no longer allowed. Though the oil companies contended that they stood
to lose billions of pesos, this Court upheld the power of the city government to
pass the assailed ordinance, stating:
In the exercise of police power, property rights of individuals may be
subjected to restraints and burdens in order to fulfil the objectives of the
government. Otherwise stated, the government may enact legislation that may
interfere with personal liberty, property, lawful businesses and occupations
to promote the general welfare.

However, the interference must be
reasonable and not arbitrary. And to forestall arbitrariness, the methods or
means used to protect public health, morals, safety or welfare must have a
reasonable relation to the end in view.
The means adopted by the Sanggunian was the enactment of a zoning
ordinance which reclassified the area where the depot is situated from industrial to
commercial. A zoning ordinance is defined as a local city or municipal
legislation which logically arranges, prescribes, defines and apportions a
given political subdivision into specific land uses as present and future
projection of needs. As a result of the zoning, the continued operation of the
businesses of the oil companies in their present location will no longer be
permitted. The power to establish zones for industrial, commercial and
residential uses is derived from the police power itself and is exercised for the
protection and benefit of the residents of a locality.Consequently, the
enactment of Ordinance No. 8027 is within the power of the Sangguniang
Panlungsod of the City of Manila and any resulting burden on those affected
cannot be said to be unjust... (Emphasis supplied)

In Carlos Superdrug v. Department of Social Welfare and
Development,
[27]
we also held:
For this reason, when the conditions so demand as determined by the
legislature, property rights must bow to the primacy of police power because
property rights, though sheltered by due process, must yield to general
welfare.
Police power as an attribute to promote the common good would be
diluted considerably if on the mere plea of petitioners that they will suffer
loss of earnings and capital, the questioned provision is invalidated.
Moreover, in the absence of evidence demonstrating the alleged confiscatory
effect of the provision in question, there is no basis for its nullification in view
of the presumption of validity which every law has in its favor. (Emphasis
supplied.)

In the case at bar, it is clear that the primary objectives of the city council of
Quezon City when it issued the questioned ordinance ordering the construction of
arcades were the health and safety of the city and its inhabitants; the promotion of
their prosperity; and the improvement of their morals, peace, good order, comfort,
and the convenience. These arcades provide safe and convenient passage along the
sidewalk for commuters and pedestrians, not just the residents of Quezon City.
More especially so because the contested portion of the building is located on a
busy segment of the city, in a business zone along EDSA.
Corollarily, the policy of the Building Code,
[28]
which was passed after the
Quezon City Ordinance, supports the purpose for the enactment of Ordinance No.
2904. The Building Code states:

Section 102. Declaration of Policy. It is hereby declared to be the policy of the
State to safeguard life, health, property, and public welfare, consistent with the
principles of sound environmental management and control; and to this end, make
it the purpose of this Code to provide for all buildings and structures, a framework
of minimum standards and requirements to regulate and control their location,
site, design quality of materials, construction, occupancy, and maintenance.

Section 1004 likewise requires the construction of arcades whenever existing
or zoning ordinances require it. Apparently, the law allows the local government
units to determine whether arcades are necessary within their respective
jurisdictions.
Justice Gancayco argues that there is a three-meter sidewalk in front of his
property line, and the arcade should be constructed above that sidewalk rather than
within his property line. We do not need to address this argument inasmuch as it
raises the issue of the wisdom of the city ordinance, a matter we will not and need
not delve into.
To reiterate, at the time that the ordinance was passed, there was no national
building code enforced to guide the city council; thus, there was no law of national
application that prohibited the city council from regulating the construction of
buildings, arcades and sidewalks in their jurisdiction.
The wing walls of the building are not
nuisances per se.

The MMDA claims that the portion of the building in question is a
nuisance per se.
We disagree.
The fact that in 1966 the City Council gave Justice Gancayco an exemption
from constructing an arcade is an indication that the wing walls of the building are
not nuisances per se. The wing walls do not per se immediately and adversely
affect the safety of persons and property. The fact that an ordinance may declare a
structure illegal does not necessarily make that structure a nuisance.

Article 694 of the Civil Code defines nuisance as any act, omission,
establishment, business, condition or property, or anything else that (1) injures or
endangers the health or safety of others; (2) annoys or offends the senses; (3)
shocks, defies or disregards decency or morality; (4) obstructs or interferes with
the free passage of any public highway or street, or any body of water; or, (5)
hinders or impairs the use of property. A nuisance may be per se or per
accidens. A nuisance per se is that which affects the immediate safety of persons
and property and may summarily be abated under the undefined law of
necessity.
[29]

Clearly, when Justice Gancayco was given a permit to construct the
building, the city council or the city engineer did not consider the building, or its
demolished portion, to be a threat to the safety of persons and property. This fact
alone should have warned the MMDA against summarily demolishing the
structure.
Neither does the MMDA have the power to declare a thing a nuisance. Only
courts of law have the power to determine whether a thing is a nuisance. In AC
Enterprises v. Frabelle Properties Corp.,
[30]
we held:
We agree with petitioner's contention that, under Section 447(a)(3)(i) of
R.A. No. 7160, otherwise known as the Local Government Code,
the Sangguniang Panglungsod is empowered to enact ordinances declaring,
preventing or abating noise and other forms of nuisance. It bears stressing,
however, that the Sangguniang Bayan cannot declare a particular thing as a
nuisanceper se and order its condemnation. It does not have the power to find,
as a fact, that a particular thing is a nuisance when such thing is not a
nuisance per se; nor can it authorize the extrajudicial condemnation and
destruction of that as a nuisance which in its nature, situation or use is not
such. Those things must be determined and resolved in the ordinary courts of
law. If a thing be in fact, a nuisance due to the manner of its operation, that
question cannot be determined by a mere resolution of the Sangguniang Bayan.
(Emphasis supplied.)



MMDA illegally demolished
the property of J ustice Gancayco.

MMDA alleges that by virtue of MMDA Resolution No. 02-28, Series of
2002, it is empowered to demolish Justice Gancaycos property. It insists that the
Metro Manila Council authorized the MMDA and the local government units to
clear the sidewalks, streets, avenues, alleys, bridges, parks and other public places
in Metro Manila of all illegal structures and obstructions. It further alleges that it
demolished the property pursuant to the Building Code in relation to Ordinance
No. 2904 as amended.
However, the Building Code clearly provides the process by which a
building may be demolished. The authority to order the demolition of any
structure lies with the Building Official. The pertinent provisions of the Building
Code provide:
SECTION 205. Building Officials. Except as otherwise provided herein,
the Building Official shall be responsible for carrying out the provisions of this
Code in the field as well as the enforcement of orders and decisions made
pursuant thereto.

Due to the exigencies of the service, the Secretary may designate incumbent
Public Works District Engineers, City Engineers and Municipal Engineers act as
Building Officials in their respective areas of jurisdiction.
The designation made by the Secretary under this Section shall continue until
regular positions of Building Official are provided or unless sooner terminated for
causes provided by law or decree.

xxx xxx xxx

SECTION 207. Duties of a Building Official. In his respective territorial
jurisdiction, the Building Official shall be primarily responsible for the
enforcement of the provisions of this Code as well as of the implementing rules
and regulations issued therefor. He is the official charged with the duties of
issuing building permits.

In the performance of his duties, a Building Official may enter any building or its
premises at all reasonable times to inspect and determine compliance with the
requirements of this Code, and the terms and conditions provided for in the
building permit as issued.

When any building work is found to be contrary to the provisions of this
Code, the Building Official may order the work stopped and prescribe the
terms and/or conditions when the work will be allowed to resume. Likewise,
the Building Official is authorized to order the discontinuance of the
occupancy or use of any building or structure or portion thereof found to be
occupied or used contrary to the provisions of this Code.

xxx xxx xxx

SECTION 215. Abatement of Dangerous Buildings. When any
building or structure is found or declared to be dangerous or ruinous, the
Building Official shall order its repair, vacation or demolition depending
upon the degree of danger to life, health, or safety. This is without prejudice
to further action that may be taken under the provisions of Articles 482 and
694 to 707 of the Civil Code of the Philippines. (Emphasis supplied.)

MMDA v. Trackworks Rail Transit Advertising, Vending and Promotions,
Inc.
[31]
is applicable to the case at bar. In that case, MMDA, invoking its charter
and the Building Code, summarily dismantled the advertising media installed on
the Metro Rail Transit (MRT) 3. This Court held:
It is futile for MMDA to simply invoke its legal mandate to justify the
dismantling of Trackworks' billboards, signages and other advertising media.
MMDA simply had no power on its own to dismantle, remove, or destroy the
billboards, signages and other advertising media installed on the MRT3 structure
by Trackworks. In Metropolitan Manila Development Authority v. Bel-Air Village
Association, Inc., Metropolitan Manila Development Authority v. Viron
Transportation Co., Inc., and Metropolitan Manila Development Authority v.
Garin, the Court had the occasion to rule that MMDA's powers were limited
to the formulation, coordination, regulation, implementation, preparation,
management, monitoring, setting of policies, installing a system, and
administration. Nothing in Republic Act No. 7924 granted MMDA police
power, let alone legislative power.

Clarifying the real nature of MMDA, the Court held:

...The MMDA is, as termed in the charter itself, a "development
authority". It is an agency created for the purpose of laying down policies
and coordinating with the various national government agencies, people's
organizations, non-governmental organizations and the private sector for the
efficient and expeditious delivery of basic services in the vast metropolitan
area. All its functions are administrative in nature and these are actually
summed up in the charter itself, viz:

Sec.2. Creation of the Metropolitan Manila Development Authority.- xxx.
The MMDA shall perform planning, monitoring and coordinative
functions, and in the process exercise regulatory and supervisory authority
over the delivery of metro-wide services within Metro Manila, without
diminution of the autonomy of local government units concerning purely
local matters.

The Court also agrees with the CA's ruling that MMDA Regulation No.
96-009 and MMC Memorandum Circular No. 88-09 did not apply to Trackworks'
billboards, signages and other advertising media. The prohibition against posting,
installation and display of billboards, signages and other advertising media
applied only to public areas, but MRT3, being private property pursuant to the
BLT agreement between the Government and MRTC, was not one of the
areas as to which the prohibition applied. Moreover, MMC Memorandum
Circular No. 88-09 did not apply to Trackworks' billboards, signages and other
advertising media in MRT3, because it did not specifically cover MRT3, and
because it was issued a year prior to the construction of MRT3 on the center
island of EDSA. Clearly, MMC Memorandum Circular No. 88-09 could not have
included MRT3 in its prohibition.

MMDA's insistence that it was only implementing Presidential Decree No.
1096 (Building Code) and its implementing rules and regulations is not
persuasive. The power to enforce the provisions of the Building Codewas
lodged in the Department of Public Works and Highways (DPWH), not in
MMDA, considering the law's following provision, thus:

Sec. 201. Responsibility for Administration and Enforcement. -
The administration and enforcement of the provisions of this Code
including the imposition of penalties for administrative violations thereof
is hereby vested in the Secretary of Public Works, Transportation and
Communications, hereinafter referred to as the "Secretary."

There is also no evidence showing that MMDA had been delegated by
DPWH to implement the Building Code. (Emphasis supplied.)

Additionally, the penalty prescribed by Ordinance No. 2904 itself does not
include the demolition of illegally constructed buildings in case of violations.
Instead, it merely prescribes a punishment of a fine of not more than two hundred
pesos (P200.00) or by imprisonment of not more than thirty (30) days, or by both
such fine and imprisonment at the discretion of the Court, Provided, that if the
violation is committed by a corporation, partnership, or any juridical entity, the
Manager, managing partner, or any person charged with the management thereof
shall be held responsible therefor. The ordinance itself also clearly states that it is
the regular courts that will determine whether there was a violation of the
ordinance.

As pointed out in Trackworks, the MMDA does not have the power to enact
ordinances. Thus, it cannot supplement the provisions of Quezon City Ordinance
No. 2904 merely through its Resolution No. 02-28.
Lastly, the MMDA claims that the City Government of Quezon City may be
considered to have approved the demolition of the structure, simply because
then Quezon City Mayor Feliciano R. Belmonte signed MMDA Resolution No.
02-28. In effect, the city government delegated these powers to the MMDA. The
powers referred to are those that include the power to declare, prevent and abate a
nuisance
[32]
and to further impose the penalty of removal or demolition of the
building or structure by the owner or by the city at the expense of the owner.
[33]

MMDAs argument does not hold water. There was no valid delegation of
powers to the MMDA. Contrary to the claim of the MMDA, the City Government
of Quezon City washed its hands off the acts of the former. In its Answer,
[34]
the
city government stated that the demolition was undertaken by the MMDA only,
without the participation and/or consent of Quezon City. Therefore, the MMDA
acted on its own and should be held solely liable for the destruction of the portion
of Justice Gancaycos building.
WHEREFORE, in view of the foregoing, the Decision of the Court of
Appeals in CA-G.R. SP No. 84648 is AFFIRMED.

SO ORDERED.

G.R. No. 118127 April 12, 2005
CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the City of Manila, HON. JOSELITO
L. ATIENZA, in his capacity as Vice-Mayor of the City of Manila and Presiding Officer of the
City Council of Manila, HON. ERNESTO A. NIEVA, HON. GONZALO P. GONZALES, HON.
AVELINO S. CAILIAN, HON. ROBERTO C. OCAMPO, HON. ALBERTO DOMINGO, HON.
HONORIO U. LOPEZ, HON. FRANCISCO G. VARONA, JR., HON. ROMUALDO S. MARANAN,
HON. NESTOR C. PONCE, JR., HON. HUMBERTO B. BASCO, HON. FLAVIANO F.
CONCEPCION, JR., HON. ROMEO G. RIVERA, HON. MANUEL M. ZARCAL, HON. PEDRO S. DE
JESUS, HON. BERNARDITO C. ANG, HON. MANUEL L. QUIN, HON. JHOSEP Y. LOPEZ, HON.
CHIKA G. GO, HON. VICTORIANO A. MELENDEZ, HON. ERNESTO V.P. MACEDA, JR., HON.
ROLANDO P. NIETO, HON. DANILO V. ROLEDA, HON. GERINO A. TOLENTINO, JR., HON. MA.
PAZ E. HERRERA, HON. JOEY D. HIZON, HON. FELIXBERTO D. ESPIRITU, HON. KARLO Q.
BUTIONG, HON. ROGELIO P. DELA PAZ, HON. BERNARDO D. RAGAZA, HON. MA. CORAZON
R. CABALLES, HON. CASIMIRO C. SISON, HON. BIENVINIDO M. ABANTE, JR., HON. MA.
LOURDES M. ISIP, HON. ALEXANDER S. RICAFORT, HON. ERNESTO F. RIVERA, HON.
LEONARDO L. ANGAT, and HON. JOCELYN B. DAWIS, in their capacity as councilors of the
City of Manila,Petitioner,
vs.
HON. PERFECTO A.S. LAGUIO, JR., as Presiding Judge, RTC, Manila and MALATE TOURIST
DEVELOPMENT CORPORATION, Respondents.
D E C I S I O N
TINGA, J .:
I know only that what is moral is what you feel good after and what is immoral is what you
feel bad after.
Ernest Hermingway
Death in the Afternoon, Ch. 1
It is a moral and political axiom that any dishonorable act, if performed by oneself, is less
immoral than if performed by someone else, who would be well-intentioned in his dishonesty.
J. Christopher Gerald
Bonaparte in Egypt, Ch. I
The Court's commitment to the protection of morals is secondary to its fealty to the fundamental law
of the land. It is foremost a guardian of the Constitution but not the conscience of individuals. And if it
need be, the Court will not hesitate to "make the hammer fall, and heavily" in the words of Justice
Laurel, and uphold the constitutional guarantees when faced with laws that, though not lacking in
zeal to promote morality, nevertheless fail to pass the test of constitutionality.
The pivotal issue in this Petition
1
under Rule 45 (then Rule 42) of the Revised Rules on Civil
Procedure seeking the reversal of the Decision
2
in Civil Case No. 93-66511 of the Regional Trial
Court (RTC) of Manila, Branch 18 (lower court),
3
is the validity of Ordinance No. 7783
(the Ordinance) of the City of Manila.
4

The antecedents are as follows:
Private respondent Malate Tourist Development Corporation (MTDC) is a corporation engaged in the
business of operating hotels, motels, hostels and lodging houses.
5
It built and opened Victoria Court
in Malate which was licensed as a motel although duly accredited with the Department of Tourism as
a hotel.
6
On 28 June 1993, MTDC filed a Petition for Declaratory Relief with Prayer for a Writ of
Preliminary Injunction and/or Temporary Restraining Order
7
(RTC Petition) with the lower court
impleading as defendants, herein petitioners City of Manila, Hon. Alfredo S. Lim (Lim), Hon. Joselito
L. Atienza, and the members of the City Council of Manila (City Council). MTDC prayed that
the Ordinance, insofar as it includes motels and inns as among its prohibited establishments, be
declared invalid and unconstitutional.
8

Enacted by the City Council
9
on 9 March 1993 and approved by petitioner City Mayor on 30 March
1993, the saidOrdinance is entitled
AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR OPERATION OF
BUSINESSES PROVIDING CERTAIN FORMS OF AMUSEMENT, ENTERTAINMENT,
SERVICES AND FACILITIES IN THE ERMITA-MALATE AREA, PRESCRIBING
PENALTIES FOR VIOLATION THEREOF, AND FOR OTHER PURPOSES.
10

The Ordinance is reproduced in full, hereunder:
SECTION 1. Any provision of existing laws and ordinances to the contrary
notwithstanding, no person, partnership, corporation or entity shall, in the Ermita-
Malate area bounded by Teodoro M. Kalaw Sr. Street in the North, Taft Avenue in the East,
Vito Cruz Street in the South and Roxas Boulevard in the West, pursuant to P.D. 499 be
allowed or authorized to contract and engage in, any business providing certain forms
of amusement, entertainment, services and facilities where women are used as tools
in entertainment and which tend to disturb the community, annoy the inhabitants, and
adversely affect the social and moral welfare of the community, such as but not limited
to:
1. Sauna Parlors
2. Massage Parlors
3. Karaoke Bars
4. Beerhouses
5. Night Clubs
6. Day Clubs
7. Super Clubs
8. Discotheques
9. Cabarets
10. Dance Halls
11. Motels
12. Inns
SEC. 2 The City Mayor, the City Treasurer or any person acting in behalf of the said
officials are prohibited from issuing permits, temporary or otherwise, or from granting
licenses and accepting payments for the operation of business enumerated in the
preceding section.
SEC. 3. Owners and/or operator of establishments engaged in, or devoted to, the
businesses enumerated in Section 1 hereof are hereby given three (3) months from the
date of approval of this ordinance within which to wind up business operations or to
transfer to any place outside of the Ermita-Malate area or convert said businesses to
other kinds of business allowable within the area, such as but not limited to:
1. Curio or antique shop
2. Souvenir Shops
3. Handicrafts display centers
4. Art galleries
5. Records and music shops
6. Restaurants
7. Coffee shops
8. Flower shops
9. Music lounge and sing-along restaurants, with well-defined activities for
wholesome family entertainment that cater to both local and foreign clientele.
10. Theaters engaged in the exhibition, not only of motion pictures but also of cultural
shows, stage and theatrical plays, art exhibitions, concerts and the like.
11. Businesses allowable within the law and medium intensity districts as provided
for in the zoning ordinances for Metropolitan Manila, except new warehouse or open-
storage depot, dock or yard, motor repair shop, gasoline service station, light industry
with any machinery, or funeral establishments.
SEC. 4. Any person violating any provisions of this ordinance, shall upon conviction,
be punished by imprisonment of one (1) year or fine of FIVE THOUSAND (P5,000.00)
PESOS, or both, at the discretion of the Court, PROVIDED, that in case of juridical person,
the President, the General Manager, or person-in-charge of operation shall be liable thereof;
PROVIDED FURTHER, that in case of subsequent violation and conviction, the
premises of the erring establishment shall be closed and padlocked permanently.
SEC. 5. This ordinance shall take effect upon approval.
Enacted by the City Council of Manila at its regular session today, March 9, 1993.
Approved by His Honor, the Mayor on March 30, 1993. (Emphasis supplied)
In the RTC Petition, MTDC argued that the Ordinance erroneously and improperly included in its
enumeration of prohibited establishments, motels and inns such as MTDC's Victoria Court
considering that these were not establishments for "amusement" or "entertainment" and they were
not "services or facilities for entertainment," nor did they use women as "tools for entertainment," and
neither did they "disturb the community," "annoy the inhabitants" or "adversely affect the social and
moral welfare of the community."
11

MTDC further advanced that the Ordinance was invalid and unconstitutional for the following
reasons: (1) The City Council has no power to prohibit the operation of motels as Section 458 (a) 4
(iv)
12
of the Local Government Code of 1991 (the Code) grants to the City Council only the power to
regulate the establishment, operation and maintenance of hotels, motels, inns, pension houses,
lodging houses and other similar establishments; (2) The Ordinance is void as it is violative of
Presidential Decree (P.D.) No. 499
13
which specifically declared portions of the Ermita-Malate area
as a commercial zone with certain restrictions; (3) The Ordinance does not constitute a proper
exercise of police power as the compulsory closure of the motel business has no reasonable relation
to the legitimate municipal interests sought to be protected; (4) The Ordinance constitutes an ex post
facto law by punishing the operation of Victoria Court which was a legitimate business prior to its
enactment; (5) The Ordinanceviolates MTDC's constitutional rights in that: (a) it is confiscatory and
constitutes an invasion of plaintiff's property rights; (b) the City Council has no power to find as a fact
that a particular thing is a nuisance per se nor does it have the power to extrajudicially destroy it; and
(6) The Ordinance constitutes a denial of equal protection under the law as no reasonable basis
exists for prohibiting the operation of motels and inns, but not pension houses, hotels, lodging
houses or other similar establishments, and for prohibiting said business in the Ermita-Malate area
but not outside of this area.
14

In their Answer
15
dated 23 July 1993, petitioners City of Manila and Lim maintained that the City
Council had the power to "prohibit certain forms of entertainment in order to protect the social and
moral welfare of the community" as provided for in Section 458 (a) 4 (vii) of the Local Government
Code,
16
which reads, thus:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions
and appropriate funds for the general welfare of the city and its inhabitants pursuant to
Section 16 of this Code and in the proper exercise of the corporate powers of the city as
provided for under Section 22 of this Code, and shall:
. . . .
(4) Regulate activities relative to the use of land, buildings and structures within the city in
order to promote the general welfare and for said purpose shall:
. . . .
(vii) Regulate the establishment, operation, and maintenance of any entertainment or
amusement facilities, including theatrical performances, circuses, billiard pools,
public dancing schools, public dance halls, sauna baths, massage parlors, and other
places for entertainment or amusement; regulate such other events or activities for
amusement or entertainment, particularly those which tend to disturb the community
or annoy the inhabitants, or require the suspension or suppression of the same; or,
prohibit certain forms of amusement or entertainment in order to protect the social
and moral welfare of the community.
Citing Kwong Sing v. City of Manila,
17
petitioners insisted that the power of regulation spoken of in
the above-quoted provision included the power to control, to govern and to restrain places of
exhibition and amusement.
18

Petitioners likewise asserted that the Ordinance was enacted by the City Council of Manila to protect
the social and moral welfare of the community in conjunction with its police power as found in Article
III, Section 18(kk) of Republic Act No. 409,
19
otherwise known as the Revised Charter of the City of
Manila (Revised Charter of Manila)
20
which reads, thus:
ARTICLE III
THE MUNICIPAL BOARD
. . .
Section 18. Legislative powers. The Municipal Board shall have the following legislative
powers:
. . .
(kk) To enact all ordinances it may deem necessary and proper for the sanitation and safety,
the furtherance of the prosperity, and the promotion of the morality, peace, good order,
comfort, convenience, and general welfare of the city and its inhabitants, and such others as
may be necessary to carry into effect and discharge the powers and duties conferred by this
chapter; and to fix penalties for the violation of ordinances which shall not exceed two
hundred pesos fine or six months' imprisonment, or both such fine and imprisonment, for a
single offense.
Further, the petitioners noted, the Ordinance had the presumption of validity; hence, private
respondent had the burden to prove its illegality or unconstitutionality.
21

Petitioners also maintained that there was no inconsistency between P.D. 499 and the Ordinance as
the latter simply disauthorized certain forms of businesses and allowed the Ermita-Malate area to
remain a commercial zone.
22
The Ordinance, the petitioners likewise claimed, cannot be assailed
as ex post facto as it was prospective in operation.
23
The Ordinance also did not infringe the equal
protection clause and cannot be denounced as class legislation as there existed substantial and real
differences between the Ermita-Malate area and other places in the City of Manila.
24

On 28 June 1993, respondent Judge Perfecto A.S. Laguio, Jr. (Judge Laguio) issued an ex-parte
temporary restraining order against the enforcement of the Ordinance.
25
And on 16 July 1993, again
in an intrepid gesture, he granted the writ of preliminary injunction prayed for by MTDC.
26

After trial, on 25 November 1994, Judge Laguio rendered the assailed Decision, enjoining the
petitioners from implementing the Ordinance. The dispositive portion of said Decision reads:
27

WHEREFORE, judgment is hereby rendered declaring Ordinance No. 778[3], Series of
1993, of the City of Manila null and void, and making permanent the writ of preliminary
injunction that had been issued by this Court against the defendant. No costs.
SO ORDERED.
28

Petitioners filed with the lower court a Notice of Appeal
29
on 12 December 1994, manifesting that
they are elevating the case to this Court under then Rule 42 on pure questions of law.
30

On 11 January 1995, petitioners filed the present Petition, alleging that the following errors were
committed by the lower court in its ruling: (1) It erred in concluding that the subject ordinance is ultra
vires, or otherwise, unfair, unreasonable and oppressive exercise of police power; (2) It erred in
holding that the questioned Ordinancecontravenes P.D. 499
31
which allows operators of all kinds of
commercial establishments, except those specified therein; and (3) It erred in declaring
the Ordinance void and unconstitutional.
32

In the Petition and in its Memorandum,
33
petitioners in essence repeat the assertions they made
before the lower court. They contend that the assailed Ordinance was enacted in the exercise of the
inherent and plenary power of the State and the general welfare clause exercised by local
government units provided for in Art. 3, Sec. 18 (kk) of the Revised Charter of Manila and
conjunctively, Section 458 (a) 4 (vii) of the Code.
34
They allege that theOrdinance is a valid exercise
of police power; it does not contravene P.D. 499; and that it enjoys the presumption of validity.
35

In its Memorandum
36
dated 27 May 1996, private respondent maintains that the Ordinance is ultra
vires and that it is void for being repugnant to the general law. It reiterates that the
questioned Ordinance is not a valid exercise of police power; that it is violative of due process,
confiscatory and amounts to an arbitrary interference with its lawful business; that it is violative of the
equal protection clause; and that it confers on petitioner City Mayor or any officer unregulated
discretion in the execution of the Ordinance absent rules to guide and control his actions.
This is an opportune time to express the Court's deep sentiment and tenderness for the Ermita-
Malate area being its home for several decades. A long-time resident, the Court witnessed the area's
many turn of events. It relished its glory days and endured its days of infamy. Much as the Court
harks back to the resplendent era of the Old Manila and yearns to restore its lost grandeur, it
believes that the Ordinance is not the fitting means to that end. The Court is of the opinion, and so
holds, that the lower court did not err in declaring the Ordinance, as it did, ultra vires and therefore
null and void.
The Ordinance is so replete with constitutional infirmities that almost every sentence thereof violates
a constitutional provision. The prohibitions and sanctions therein transgress the cardinal rights of
persons enshrined by the Constitution. The Court is called upon to shelter these rights from attempts
at rendering them worthless.
The tests of a valid ordinance are well established. A long line of decisions has held that for an
ordinance to be valid, it must not only be within the corporate powers of the local government unit to
enact and must be passed according to the procedure prescribed by law, it must also conform to the
following substantive requirements: (1) must not contravene the Constitution or any statute; (2) must
not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but may
regulate trade; (5) must be general and consistent with public policy; and (6) must not be
unreasonable.
37

Anent the first criterion, ordinances shall only be valid when they are not contrary to the Constitution
and to the laws.
38
The Ordinance must satisfy two requirements: it must pass muster under the test
of constitutionality and the test of consistency with the prevailing laws. That ordinances should be
constitutional uphold the principle of the supremacy of the Constitution. The requirement that the
enactment must not violate existing law gives stress to the precept that local government units are
able to legislate only by virtue of their derivative legislative power, a delegation of legislative power
from the national legislature. The delegate cannot be superior to the principal or exercise powers
higher than those of the latter.
39

This relationship between the national legislature and the local government units has not been
enfeebled by the new provisions in the Constitution strengthening the policy of local autonomy. The
national legislature is still the principal of the local government units, which cannot defy its will or
modify or violate it.
40

The Ordinance was passed by the City Council in the exercise of its police power, an enactment of
the City Council acting as agent of Congress. Local government units, as agencies of the State, are
endowed with police power in order to effectively accomplish and carry out the declared objects of
their creation.
41
This delegated police power is found in Section 16 of the Code, known as the
general welfare clause, viz:
SECTION 16. General Welfare.Every local government unit shall exercise the powers
expressly granted, those necessarily implied therefrom, as well as powers necessary,
appropriate, or incidental for its efficient and effective governance, and those which are
essential to the promotion of the general welfare. Within their respective territorial
jurisdictions, local government units shall ensure and support, among other things, the
preservation and enrichment of culture, promote health and safety, enhance the right of the
people to a balanced ecology, encourage and support the development of appropriate and
self-reliant scientific and technological capabilities, improve public morals, enhance
economic prosperity and social justice, promote full employment among their residents,
maintain peace and order, and preserve the comfort and convenience of their inhabitants.
Local government units exercise police power through their respective legislative bodies; in this
case, thesangguniang panlungsod or the city council. The Code empowers the legislative bodies to
"enact ordinances, approve resolutions and appropriate funds for the general welfare of the
province/city/municipality and its inhabitants pursuant to Section 16 of the Code and in the proper
exercise of the corporate powers of the province/city/ municipality provided under the Code.
42
The
inquiry in this Petition is concerned with the validity of the exercise of such delegated power.
The Ordinance contravenes
the Constitution
The police power of the City Council, however broad and far-reaching, is subordinate to the
constitutional limitations thereon; and is subject to the limitation that its exercise must be reasonable
and for the public good.
43
In the case at bar, the enactment of the Ordinance was an invalid exercise
of delegated power as it is unconstitutional and repugnant to general laws.
The relevant constitutional provisions are the following:
SEC. 5. The maintenance of peace and order, the protection of life, liberty, and property, and
the promotion of the general welfare are essential for the enjoyment by all the people of the
blessings of democracy.
44

SEC. 14. The State recognizes the role of women in nation-building, and shall ensure the
fundamental equality before the law of women and men.
45

SEC. 1. No person shall be deprived of life, liberty or property without due process of law,
nor shall any person be denied the equal protection of laws.
46

Sec. 9. Private property shall not be taken for public use without just compensation.
47

A. The Ordinance infringes
the Due Process Clause
The constitutional safeguard of due process is embodied in the fiat "(N)o person shall be deprived of
life, liberty or property without due process of law. . . ."
48

There is no controlling and precise definition of due process. It furnishes though a standard to which
governmental action should conform in order that deprivation of life, liberty or property, in each
appropriate case, be valid. This standard is aptly described as a responsiveness to the supremacy
of reason, obedience to the dictates of justice,
49
and as such it is a limitation upon the exercise of the
police power.
50

The purpose of the guaranty is to prevent governmental encroachment against the life, liberty and
property of individuals; to secure the individual from the arbitrary exercise of the powers of the
government, unrestrained by the established principles of private rights and distributive justice; to
protect property from confiscation by legislative enactments, from seizure, forfeiture, and destruction
without a trial and conviction by the ordinary mode of judicial procedure; and to secure to all persons
equal and impartial justice and the benefit of the general law.
51

The guaranty serves as a protection against arbitrary regulation, and private corporations and
partnerships are "persons" within the scope of the guaranty insofar as their property is concerned.
52

This clause has been interpreted as imposing two separate limits on government, usually called
"procedural due process" and "substantive due process."
Procedural due process, as the phrase implies, refers to the procedures that the government must
follow before it deprives a person of life, liberty, or property. Classic procedural due process issues
are concerned with what kind of notice and what form of hearing the government must provide when
it takes a particular action.
53

Substantive due process, as that phrase connotes, asks whether the government has an adequate
reason for taking away a person's life, liberty, or property. In other words, substantive due process
looks to whether there is a sufficient justification for the government's action.
54
Case law in the
United States (U.S.) tells us that whether there is such a justification depends very much on the level
of scrutiny used.
55
For example, if a law is in an area where only rational basis review is applied,
substantive due process is met so long as the law is rationally related to a legitimate government
purpose. But if it is an area where strict scrutiny is used, such as for protecting fundamental rights,
then the government will meet substantive due process only if it can prove that the law is necessary
to achieve a compelling government purpose.
56

The police power granted to local government units must always be exercised with utmost
observance of the rights of the people to due process and equal protection of the law. Such power
cannot be exercised whimsically, arbitrarily or despotically
57
as its exercise is subject to a
qualification, limitation or restriction demanded by the respect and regard due to the prescription of
the fundamental law, particularly those forming part of the Bill of Rights. Individual rights, it bears
emphasis, may be adversely affected only to the extent that may fairly be required by the legitimate
demands of public interest or public welfare.
58
Due process requires the intrinsic validity of the law in
interfering with the rights of the person to his life, liberty and property.
59

Requisites for the valid exercise
of Police Power are not met
To successfully invoke the exercise of police power as the rationale for the enactment of
the Ordinance, and to free it from the imputation of constitutional infirmity, not only must it appear
that the interests of the public generally, as distinguished from those of a particular class, require an
interference with private rights, but the means adopted must be reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon individuals.
60
It must be evident that
no other alternative for the accomplishment of the purpose less intrusive of private rights can
work. A reasonable relation must exist between the purposes of the police measure and the means
employed for its accomplishment, for even under the guise of protecting the public interest, personal
rights and those pertaining to private property will not be permitted to be arbitrarily invaded.
61

Lacking a concurrence of these two requisites, the police measure shall be struck down as an
arbitrary intrusion into private rights
62
a violation of the due process clause.
The Ordinance was enacted to address and arrest the social ills purportedly spawned by the
establishments in the Ermita-Malate area which are allegedly operated under the deceptive veneer
of legitimate, licensed and tax-paying nightclubs, bars, karaoke bars, girlie houses, cocktail lounges,
hotels and motels. Petitioners insist that even the Court in the case of Ermita-Malate Hotel and
Motel Operators Association, Inc. v. City Mayor of Manila
63
had already taken judicial notice of the
"alarming increase in the rate of prostitution, adultery and fornication in Manila traceable in great part
to existence of motels, which provide a necessary atmosphere for clandestine entry, presence and
exit and thus become the ideal haven for prostitutes and thrill-seekers."
64

The object of the Ordinance was, accordingly, the promotion and protection of the social and moral
values of the community. Granting for the sake of argument that the objectives of the Ordinance are
within the scope of the City Council's police powers, the means employed for the accomplishment
thereof were unreasonable and unduly oppressive.
It is undoubtedly one of the fundamental duties of the City of Manila to make all reasonable
regulations looking to the promotion of the moral and social values of the community. However, the
worthy aim of fostering public morals and the eradication of the community's social ills can be
achieved through means less restrictive of private rights; it can be attained by reasonable restrictions
rather than by an absolute prohibition. The closing down and transfer of businesses or their
conversion into businesses "allowed" under the Ordinance have no reasonable relation to the
accomplishment of its purposes. Otherwise stated, the prohibition of the enumerated establishments
will not per seprotect and promote the social and moral welfare of the community; it will not in itself
eradicate the alluded social ills of prostitution, adultery, fornication nor will it arrest the spread of
sexual disease in Manila.
Conceding for the nonce that the Ermita-Malate area teems with houses of ill-repute and
establishments of the like which the City Council may lawfully prohibit,
65
it is baseless and
insupportable to bring within that classification sauna parlors, massage parlors, karaoke bars, night
clubs, day clubs, super clubs, discotheques, cabarets, dance halls, motels and inns. This is not
warranted under the accepted definitions of these terms. The enumerated establishments are lawful
pursuits which are not per se offensive to the moral welfare of the community.
That these are used as arenas to consummate illicit sexual affairs and as venues to further the
illegal prostitution is of no moment. We lay stress on the acrid truth that sexual immorality, being a
human frailty, may take place in the most innocent of places that it may even take place in the
substitute establishments enumerated under Section 3 of the Ordinance. If the flawed logic of
the Ordinance were to be followed, in the remote instance that an immoral sexual act transpires in a
church cloister or a court chamber, we would behold the spectacle of the City of Manila ordering the
closure of the church or court concerned. Every house, building, park, curb, street or even vehicles
for that matter will not be exempt from the prohibition. Simply because there are no "pure" places
where there are impure men. Indeed, even the Scripture and the Tradition of Christians churches
continually recall the presence anduniversality of sin in man's history.
66

The problem, it needs to be pointed out, is not the establishment, which by its nature cannot be said
to be injurious to the health or comfort of the community and which in itself is amoral, but the
deplorable human activity that may occur within its premises. While a motel may be used as a venue
for immoral sexual activity, it cannot for that reason alone be punished. It cannot be classified as a
house of ill-repute or as a nuisance per se on a mere likelihood or a naked assumption. If that were
so and if that were allowed, then the Ermita-Malate area would not only be purged of its supposed
social ills, it would be extinguished of its soul as well as every human activity, reprehensible or not,
in its every nook and cranny would be laid bare to the estimation of the authorities.
The Ordinance seeks to legislate morality but fails to address the core issues of morality. Try as
the Ordinance may to shape morality, it should not foster the illusion that it can make a moral man
out of it because immorality is not a thing, a building or establishment; it is in the hearts of men. The
City Council instead should regulate human conduct that occurs inside the establishments, but not to
the detriment of liberty and privacy which are covenants, premiums and blessings of democracy.
While petitioners' earnestness at curbing clearly objectionable social ills is commendable, they
unwittingly punish even the proprietors and operators of "wholesome," "innocent" establishments. In
the instant case, there is a clear invasion of personal or property rights, personal in the case of those
individuals desirous of owning, operating and patronizing those motels and property in terms of the
investments made and the salaries to be paid to those therein employed. If the City of Manila so
desires to put an end to prostitution, fornication and other social ills, it can instead impose
reasonable regulations such as daily inspections of the establishments for any violation of the
conditions of their licenses or permits; it may exercise its authority to suspend or revoke their
licenses for these violations;
67
and it may even impose increased license fees. In other words, there
are other means to reasonably accomplish the desired end.
Means employed are
constitutionally infirm
The Ordinance disallows the operation of sauna parlors, massage parlors, karaoke bars,
beerhouses, night clubs, day clubs, super clubs, discotheques, cabarets, dance halls, motels and
inns in the Ermita-Malate area. In Section 3 thereof, owners and/or operators of the enumerated
establishments are given three (3) months from the date of approval of the Ordinance within which
"to wind up business operations or to transfer to any place outside the Ermita-Malate area or convert
said businesses to other kinds of business allowable within the area." Further, it states in Section 4
that in cases of subsequent violations of the provisions of the Ordinance, the "premises of the erring
establishment shall be closed and padlocked permanently."
It is readily apparent that the means employed by the Ordinance for the achievement of its purposes,
the governmental interference itself, infringes on the constitutional guarantees of a person's
fundamental right to liberty and property.
Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include "the right to
exist and the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed into
mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right
of man to enjoy the facilities with which he has been endowed by his Creator, subject only to such
restraint as are necessary for the common welfare."
68
In accordance with this case, the rights of the
citizen to be free to use his faculties in all lawful ways; to live and work where he will; to earn his
livelihood by any lawful calling; and to pursue any avocation are all deemed embraced in the
concept of liberty.
69

The U.S. Supreme Court in the case of Roth v. Board of Regents,
70
sought to clarify the meaning of
"liberty." It said:
While the Court has not attempted to define with exactness the liberty. . . guaranteed [by the
Fifth and Fourteenth Amendments], the term denotes not merely freedom from bodily
restraint but also the right of the individual to contract, to engage in any of the common
occupations of life, to acquire useful knowledge, to marry, establish a home and bring up
children, to worship God according to the dictates of his own conscience, and generally to
enjoy those privileges long recognizedas essential to the orderly pursuit of happiness by
free men. In a Constitution for a free people, there can be no doubt that the meaning of
"liberty" must be broad indeed.
In another case, it also confirmed that liberty protected by the due process clause includes personal
decisions relating to marriage, procreation, contraception, family relationships, child rearing, and
education. In explaining the respect the Constitution demands for the autonomy of the person in
making these choices, the U.S. Supreme Court explained:
These matters, involving the most intimate and personal choices a person may make in a
lifetime, choices central to personal dignity and autonomy, are central to the liberty protected
by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept
of existence, of meaning, of universe, and of the mystery of human life. Beliefs about these
matters could not define the attributes of personhood where they formed under compulsion
of the State.
71

Persons desirous to own, operate and patronize the enumerated establishments under Section 1 of
the Ordinancemay seek autonomy for these purposes.
Motel patrons who are single and unmarried may invoke this right to autonomy to consummate their
bonds in intimate sexual conduct within the motel's premisesbe it stressed that their consensual
sexual behavior does not contravene any fundamental state policy as contained in the
Constitution.
72
Adults have a right to choose to forge such relationships with others in the confines of
their own private lives and still retain their dignity as free persons. The liberty protected by the
Constitution allows persons the right to make this choice.
73
Their right to liberty under the due
process clause gives them the full right to engage in their conduct without intervention of the
government, as long as they do not run afoul of the law. Liberty should be the rule and restraint the
exception.
Liberty in the constitutional sense not only means freedom from unlawful government restraint; it
must include privacy as well, if it is to be a repository of freedom. The right to be let alone is the
beginning of all freedomit is the most comprehensive of rights and the right most valued by
civilized men.
74

The concept of liberty compels respect for the individual whose claim to privacy and interference
demands respect. As the case of Morfe v. Mutuc,
75
borrowing the words of Laski, so very aptly
stated:
Man is one among many, obstinately refusing reduction to unity. His separateness, his
isolation, are indefeasible; indeed, they are so fundamental that they are the basis on which
his civic obligations are built. He cannot abandon the consequences of his isolation, which
are, broadly speaking, that his experience is private, and the will built out of that experience
personal to himself. If he surrenders his will to others, he surrenders himself. If his will is set
by the will of others, he ceases to be a master of himself. I cannot believe that a man no
longer a master of himself is in any real sense free.
Indeed, the right to privacy as a constitutional right was recognized in Morfe, the invasion of which
should be justified by a compelling state interest. Morfe accorded recognition to the right to privacy
independently of its identification with liberty; in itself it is fully deserving of constitutional protection.
Governmental powers should stop short of certain intrusions into the personal life of the citizen.
76

There is a great temptation to have an extended discussion on these civil liberties but the Court
chooses to exercise restraint and restrict itself to the issues presented when it should. The previous
pronouncements of the Court are not to be interpreted as a license for adults to engage in criminal
conduct. The reprehensibility of such conduct is not diminished. The Court only reaffirms and
guarantees their right to make this choice. Should they be prosecuted for their illegal conduct, they
should suffer the consequences of the choice they have made. That, ultimately, is their choice.
Modality employed is
unlawful taking
In addition, the Ordinance is unreasonable and oppressive as it substantially divests the respondent
of the beneficial use of its property.
77
The Ordinance in Section 1 thereof forbids the running of the
enumerated businesses in the Ermita-Malate area and in Section 3 instructs its owners/operators to
wind up business operations or to transfer outside the area or convert said businesses into allowed
businesses. An ordinance which permanently restricts the use of property that it can not be used for
any reasonable purpose goes beyond regulation and must be recognized as a taking of the property
without just compensation.
78
It is intrusive and violative of the private property rights of individuals.
The Constitution expressly provides in Article III, Section 9, that "private property shall not be taken
for public use without just compensation." The provision is the most important protection of property
rights in the Constitution. This is a restriction on the general power of the government to take
property. The constitutional provision is about ensuring that the government does not confiscate the
property of some to give it to others. In part too, it is about loss spreading. If the government takes
away a person's property to benefit society, then society should pay. The principal purpose of the
guarantee is "to bar the Government from forcing some people alone to bear public burdens which,
in all fairness and justice, should be borne by the public as a whole.
79

There are two different types of taking that can be identified. A "possessory" taking occurs when the
government confiscates or physically occupies property. A "regulatory" taking occurs when the
government's regulation leaves no reasonable economically viable use of the property.
80

In the landmark case of Pennsylvania Coal v. Mahon,
81
it was held that a taking also could be found
if government regulation of the use of property went "too far." When regulation reaches a certain
magnitude, in most if not in all cases there must be an exercise of eminent domain and
compensation to support the act. While property may be regulated to a certain extent, if regulation
goes too far it will be recognized as a taking.
82

No formula or rule can be devised to answer the questions of what is too far and when regulation
becomes a taking. In Mahon, Justice Holmes recognized that it was "a question of degree and
therefore cannot be disposed of by general propositions." On many other occasions as well, the U.S.
Supreme Court has said that the issue of when regulation constitutes a taking is a matter of
considering the facts in each case. The Court asks whether justice and fairness require that the
economic loss caused by public action must be compensated by the government and thus borne by
the public as a whole, or whether the loss should remain concentrated on those few persons subject
to the public action.
83

What is crucial in judicial consideration of regulatory takings is that government regulation is a taking
if it leaves no reasonable economically viable use of property in a manner that interferes with
reasonable expectations for use.
84
A regulation that permanently denies all economically beneficial or
productive use of land is, from the owner's point of view, equivalent to a "taking" unless principles of
nuisance or property law that existed when the owner acquired the land make the use
prohibitable.
85
When the owner of real property has been called upon to sacrifice all economically
beneficial uses in the name of the common good, that is, to leave his property economically idle, he
has suffered a taking.
86

A regulation which denies all economically beneficial or productive use of land will require
compensation under the takings clause. Where a regulation places limitations on land that fall short
of eliminating all economically beneficial use, a taking nonetheless may have occurred, depending
on a complex of factors including the regulation's economic effect on the landowner, the extent to
which the regulation interferes with reasonable investment-backed expectations and the character of
government action. These inquiries are informed by the purpose of the takings clause which is to
prevent the government from forcing some people alone to bear public burdens which, in all fairness
and justice, should be borne by the public as a whole.
87

A restriction on use of property may also constitute a "taking" if not reasonably necessary to the
effectuation of a substantial public purpose or if it has an unduly harsh impact on the distinct
investment-backed expectations of the owner.
88

The Ordinance gives the owners and operators of the "prohibited" establishments three (3) months
from its approval within which to "wind up business operations or to transfer to any place outside of
the Ermita-Malate area or convert said businesses to other kinds of business allowable within the
area." The directive to "wind up business operations" amounts to a closure of the establishment, a
permanent deprivation of property, and is practically confiscatory. Unless the owner converts his
establishment to accommodate an "allowed" business, the structure which housed the previous
business will be left empty and gathering dust. Suppose he transfers it to another area, he will
likewise leave the entire establishment idle. Consideration must be given to the substantial amount
of money invested to build the edifices which the owner reasonably expects to be returned within a
period of time. It is apparent that theOrdinance leaves no reasonable economically viable use of
property in a manner that interferes with reasonable expectations for use.
The second and third options to transfer to any place outside of the Ermita-Malate area or to
convert into allowed businessesare confiscatory as well. The penalty of permanent closure in
cases of subsequent violations found in Section 4 of the Ordinance is also equivalent to a "taking" of
private property.
The second option instructs the owners to abandon their property and build another one outside the
Ermita-Malate area. In every sense, it qualifies as a taking without just compensation with an
additional burden imposed on the owner to build another establishment solely from his coffers. The
proffered solution does not put an end to the "problem," it merely relocates it. Not only is this
impractical, it is unreasonable, onerous and oppressive. The conversion into allowed enterprises is
just as ridiculous. How may the respondent convert a motel into a restaurant or a coffee shop, art
gallery or music lounge without essentially destroying its property? This is a taking of private
property without due process of law, nay, even without compensation.
The penalty of closure likewise constitutes unlawful taking that should be compensated by the
government. The burden on the owner to convert or transfer his business, otherwise it will be closed
permanently after a subsequent violation should be borne by the public as this end benefits them as
a whole.
Petitioners cannot take refuge in classifying the measure as a zoning ordinance. A zoning ordinance,
although a valid exercise of police power, which limits a "wholesome" property to a use which can
not reasonably be made of it constitutes the taking of such property without just
compensation. Private property which is not noxious nor intended for noxious purposes may not, by
zoning, be destroyed without compensation. Such principle finds no support in the principles of
justice as we know them. The police powers of local government units which have always received
broad and liberal interpretation cannot be stretched to cover this particular taking.
Distinction should be made between destruction from necessity and eminent domain. It needs
restating that the property taken in the exercise of police power is destroyed because it is noxious or
intended for a noxious purpose while the property taken under the power of eminent domain is
intended for a public use or purpose and is therefore "wholesome."
89
If it be of public benefit that a
"wholesome" property remain unused or relegated to a particular purpose, then certainly the public
should bear the cost of reasonable compensation for the condemnation of private property for public
use.
90

Further, the Ordinance fails to set up any standard to guide or limit the petitioners' actions. It in no
way controls or guides the discretion vested in them. It provides no definition of the establishments
covered by it and it fails to set forth the conditions when the establishments come within its ambit of
prohibition. The Ordinance confers upon the mayor arbitrary and unrestricted power to close down
establishments. Ordinances such as this, which make possible abuses in its execution, depending
upon no conditions or qualifications whatsoever other than the unregulated arbitrary will of the city
authorities as the touchstone by which its validity is to be tested, are unreasonable and invalid.
The Ordinance should have established a rule by which its impartial enforcement could be secured.
91

Ordinances placing restrictions upon the lawful use of property must, in order to be valid and
constitutional, specify the rules and conditions to be observed and conduct to avoid; and must not
admit of the exercise, or of an opportunity for the exercise, of unbridled discretion by the law
enforcers in carrying out its provisions.
92

Thus, in Coates v. City of Cincinnati,
93
as cited in People v. Nazario,
94
the U.S. Supreme Court
struck down an ordinance that had made it illegal for "three or more persons to assemble on any
sidewalk and there conduct themselves in a manner annoying to persons passing by." The
ordinance was nullified as it imposed no standard at all "because one may never know in advance
what 'annoys some people but does not annoy others.' "
Similarly, the Ordinance does not specify the standards to ascertain which establishments "tend to
disturb the community," "annoy the inhabitants," and "adversely affect the social and moral welfare
of the community." The cited case supports the nullification of the Ordinance for lack of
comprehensible standards to guide the law enforcers in carrying out its provisions.
Petitioners cannot therefore order the closure of the enumerated establishments without infringing
the due process clause. These lawful establishments may be regulated, but not prevented from
carrying on their business. This is a sweeping exercise of police power that is a result of a lack of
imagination on the part of the City Council and which amounts to an interference into personal and
private rights which the Court will not countenance. In this regard, we take a resolute stand to uphold
the constitutional guarantee of the right to liberty and property.
Worthy of note is an example derived from the U.S. of a reasonable regulation which is a far cry from
the ill-considered Ordinance enacted by the City Council.
In FW/PBS, INC. v. Dallas,
95
the city of Dallas adopted a comprehensive ordinance regulating
"sexually oriented businesses," which are defined to include adult arcades, bookstores, video stores,
cabarets, motels, and theaters as well as escort agencies, nude model studio and sexual encounter
centers. Among other things, the ordinance required that such businesses be licensed. A group of
motel owners were among the three groups of businesses that filed separate suits challenging the
ordinance. The motel owners asserted that the city violated the due process clause by failing to
produce adequate support for its supposition that renting room for fewer than ten (10) hours resulted
in increased crime and other secondary effects. They likewise argued than the ten (10)-hour
limitation on the rental of motel rooms placed an unconstitutional burden on the right to freedom of
association. Anent the first contention, the U.S. Supreme Court held that the reasonableness of the
legislative judgment combined with a study which the city considered, was adequate to support the
city's determination that motels permitting room rentals for fewer than ten (10 ) hours should be
included within the licensing scheme. As regards the second point, the Court held that limiting motel
room rentals to ten (10) hours will have no discernible effect on personal bonds as those bonds that
are formed from the use of a motel room for fewer than ten (10) hours are not those that have played
a critical role in the culture and traditions of the nation by cultivating and transmitting shared ideals
and beliefs.
The ordinance challenged in the above-cited case merely regulated the targeted businesses. It
imposed reasonable restrictions; hence, its validity was upheld.
The case of Ermita Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila,
96
it
needs pointing out, is also different from this case in that what was involved therein was a measure
which regulated the mode in which motels may conduct business in order to put an end to practices
which could encourage vice and immorality. Necessarily, there was no valid objection on due
process or equal protection grounds as the ordinance did not prohibit motels. The Ordinance in this
case however is not a regulatory measure but is an exercise of an assumed power to prohibit.
97

The foregoing premises show that the Ordinance is an unwarranted and unlawful curtailment of
property and personal rights of citizens. For being unreasonable and an undue restraint of trade, it
cannot, even under the guise of exercising police power, be upheld as valid.
B. The Ordinance violates Equal
Protection Clause
Equal protection requires that all persons or things similarly situated should be treated alike, both as
to rights conferred and responsibilities imposed. Similar subjects, in other words, should not be
treated differently, so as to give undue favor to some and unjustly discriminate against others.
98
The
guarantee means that no person or class of persons shall be denied the same protection of laws
which is enjoyed by other persons or other classes in like circumstances.
99
The "equal protection of
the laws is a pledge of the protection of equal laws."
100
It limits governmental discrimination. The
equal protection clause extends to artificial persons but only insofar as their property is concerned.
101

The Court has explained the scope of the equal protection clause in this wise:
What does it signify? To quote from J.M. Tuason & Co. v. Land Tenure Administration:
"The ideal situation is for the law's benefits to be available to all, that none be placed outside
the sphere of its coverage. Only thus could chance and favor be excluded and the affairs of
men governed by that serene and impartial uniformity, which is of the very essence of the
idea of law." There is recognition, however, in the opinion that what in fact exists "cannot
approximate the ideal. Nor is the law susceptible to the reproach that it does not take into
account the realities of the situation. The constitutional guarantee then is not to be given a
meaning that disregards what is, what does in fact exist. To assure that the general welfare
be promoted, which is the end of law, a regulatory measure may cut into the rights to liberty
and property. Those adversely affected may under such circumstances invoke the equal
protection clause only if they can show that the governmental act assailed, far from being
inspired by the attainment of the common weal was prompted by the spirit of hostility, or at
the very least, discrimination that finds no support in reason." Classification is thus not ruled
out, it being sufficient to quote from the Tuason decision anew "that the laws operate equally
and uniformly on all persons under similar circumstances or that all persons must be treated
in the same manner, the conditions not being different, both in the privileges conferred and
the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle
is that equal protection and security shall be given to every person under circumstances
which, if not identical, are analogous. If law be looked upon in terms of burden or charges,
those that fall within a class should be treated in the same fashion, whatever restrictions cast
on some in the group equally binding on the rest.
102

Legislative bodies are allowed to classify the subjects of legislation. If the classification is
reasonable, the law may operate only on some and not all of the people without violating the equal
protection clause.
103
The classification must, as an indispensable requisite, not be arbitrary. To be
valid, it must conform to the following requirements:
1) It must be based on substantial distinctions.
2) It must be germane to the purposes of the law.
3) It must not be limited to existing conditions only.
4) It must apply equally to all members of the class.
104

In the Court's view, there are no substantial distinctions between motels, inns, pension houses,
hotels, lodging houses or other similar establishments. By definition, all are commercial
establishments providing lodging and usually meals and other services for the public. No reason
exists for prohibiting motels and inns but not pension houses, hotels, lodging houses or other similar
establishments. The classification in the instant case is invalid as similar subjects are not similarly
treated, both as to rights conferred and obligations imposed. It is arbitrary as it does not rest on
substantial distinctions bearing a just and fair relation to the purpose of the Ordinance.
The Court likewise cannot see the logic for prohibiting the business and operation of motels in the
Ermita-Malate area but not outside of this area. A noxious establishment does not become any less
noxious if located outside the area.
The standard "where women are used as tools for entertainment" is also discriminatory as
prostitutionone of the hinted ills the Ordinance aims to banishis not a profession exclusive to
women. Both men and women have an equal propensity to engage in prostitution. It is not any less
grave a sin when men engage in it. And why would the assumption that there is an ongoing immoral
activity apply only when women are employed and be inapposite when men are in harness? This
discrimination based on gender violates equal protection as it is not substantially related to important
government objectives.
105
Thus, the discrimination is invalid.
Failing the test of constitutionality, the Ordinance likewise failed to pass the test of consistency with
prevailing laws.
C. The Ordinance is repugnant
to general laws; it is ultra vires
The Ordinance is in contravention of the Code as the latter merely empowers local government units
to regulate, and not prohibit, the establishments enumerated in Section 1 thereof.
The power of the City Council to regulate by ordinances the establishment, operation, and
maintenance of motels, hotels and other similar establishments is found in Section 458 (a) 4 (iv),
which provides that:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions
and appropriate funds for the general welfare of the city and its inhabitants pursuant to
Section 16 of this Code and in the proper exercise of the corporate powers of the city as
provided for under Section 22 of this Code, and shall:
. . .
(4) Regulate activities relative to the use of land, buildings and structures within the city in
order to promote the general welfare and for said purpose shall:
. . .
(iv) Regulate the establishment, operation and maintenance of cafes, restaurants,
beerhouses, hotels, motels, inns, pension houses, lodging houses, and other similar
establishments, including tourist guides and transports . . . .
While its power to regulate the establishment, operation and maintenance of any entertainment or
amusement facilities, and to prohibit certain forms of amusement or entertainment is provided under
Section 458 (a) 4 (vii) of the Code, which reads as follows:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions
and appropriate funds for the general welfare of the city and its inhabitants pursuant to
Section 16 of this Code and in the proper exercise of the corporate powers of the city as
provided for under Section 22 of this Code, and shall:
. . .
(4) Regulate activities relative to the use of land, buildings and structures within the city in
order to promote the general welfare and for said purpose shall:
. . .
(vii) Regulate the establishment, operation, and maintenance of any entertainment or
amusement facilities, including theatrical performances, circuses, billiard pools,
public dancing schools, public dance halls, sauna baths, massage parlors, and other
places for entertainment or amusement; regulate such other events or activities for
amusement or entertainment, particularly those which tend to disturb the community
or annoy the inhabitants, or require the suspension or suppression of the same; or,
prohibit certain forms of amusement or entertainment in order to protect the social
and moral welfare of the community.
Clearly, with respect to cafes, restaurants, beerhouses, hotels, motels, inns, pension houses,
lodging houses, and other similar establishments, the only power of the City Council to legislate
relative thereto is to regulate them to promote the general welfare. The Code still withholds from
cities the power to suppress and prohibit altogether the establishment, operation and maintenance of
such establishments. It is well to recall the rulings of the Court inKwong Sing v. City of Manila
106
that:
The word "regulate," as used in subsection (l), section 2444 of the Administrative Code,
means and includes the power to control, to govern, and to restrain; but "regulate" should not
be construed as synonymous with "suppress" or "prohibit." Consequently, under the power to
regulate laundries, the municipal authorities could make proper police regulations as to the
mode in which the employment or business shall be exercised.
107

And in People v. Esguerra,
108
wherein the Court nullified an ordinance of the Municipality of Tacloban
which prohibited the selling, giving and dispensing of liquor ratiocinating that the municipality is
empowered only to regulate the same and not prohibit. The Court therein declared that:
(A)s a general rule when a municipal corporation is specifically given authority or power to
regulate or to license and regulate the liquor traffic, power to prohibit is impliedly withheld.
109

These doctrines still hold contrary to petitioners' assertion
110
that they were modified by the Code
vesting upon City Councils prohibitory powers.
Similarly, the City Council exercises regulatory powers over public dancing schools, public dance
halls, sauna baths, massage parlors, and other places for entertainment or amusement as found in
the first clause of Section 458 (a) 4 (vii). Its powers to regulate, suppress and suspend "such other
events or activities for amusement or entertainment, particularly those which tend to disturb the
community or annoy the inhabitants" and to "prohibit certain forms of amusement or entertainment in
order to protect the social and moral welfare of the community" are stated in the second and third
clauses, respectively of the same Section. The several powers of the City Council as provided in
Section 458 (a) 4 (vii) of the Code, it is pertinent to emphasize, are separated by semi-colons (;), the
use of which indicates that the clauses in which these powers are set forth are independent of each
other albeit closely related to justify being put together in a single enumeration or
paragraph.
111
These powers, therefore, should not be confused, commingled or consolidated as to
create a conglomerated and unified power of regulation, suppression and prohibition.
112

The Congress unequivocably specified the establishments and forms of amusement or
entertainment subject to regulation among which are beerhouses, hotels, motels, inns, pension
houses, lodging houses, and other similar establishments (Section 458 (a) 4 (iv)), public dancing
schools, public dance halls, sauna baths, massage parlors, and other places for entertainment or
amusement (Section 458 (a) 4 (vii)). This enumeration therefore cannot be included as among "other
events or activities for amusement or entertainment, particularly those which tend to disturb the
community or annoy the inhabitants" or "certain forms of amusement or entertainment" which the
City Council may suspend, suppress or prohibit.
The rule is that the City Council has only such powers as are expressly granted to it and those which
are necessarily implied or incidental to the exercise thereof. By reason of its limited powers and the
nature thereof, said powers are to be construed strictissimi juris and any doubt or ambiguity arising
out of the terms used in granting said powers must be construed against the City
Council.
113
Moreover, it is a general rule in statutory construction that the express mention of one
person, thing, or consequence is tantamount to an express exclusion of all others.Expressio unius
est exclusio alterium. This maxim is based upon the rules of logic and the natural workings of human
mind. It is particularly applicable in the construction of such statutes as create new rights or
remedies, impose penalties or punishments, or otherwise come under the rule of strict
construction.
114

The argument that the City Council is empowered to enact the Ordinance by virtue of the general
welfare clause of the Code and of Art. 3, Sec. 18 (kk) of the Revised Charter of Manila is likewise
without merit. On the first point, the ruling of the Court in People v. Esguerra,
115
is instructive. It held
that:
The powers conferred upon a municipal council in the general welfare clause, or section
2238 of the Revised Administrative Code, refers to matters not covered by the other
provisions of the same Code, and therefore it can not be applied to intoxicating liquors, for
the power to regulate the selling, giving away and dispensing thereof is granted specifically
by section 2242 (g) to municipal councils. To hold that, under the general power granted by
section 2238, a municipal council may enact the ordinance in question, notwithstanding the
provision of section 2242 (g), would be to make the latter superfluous and nugatory, because
the power to prohibit, includes the power to regulate, the selling, giving away and dispensing
of intoxicating liquors.
On the second point, it suffices to say that the Code being a later expression of the legislative will
must necessarily prevail and override the earlier law, the Revised Charter of Manila. Legis
posteriores priores contrarias abrogant, or later statute repeals prior ones which are repugnant
thereto. As between two laws on the same subject matter, which are irreconcilably inconsistent, that
which is passed later prevails, since it is the latest expression of legislative will.
116
If there is an
inconsistency or repugnance between two statutes, both relating to the same subject matter, which
cannot be removed by any fair and reasonable method of interpretation, it is the latest expression of
the legislative will which must prevail and override the earlier.
117

Implied repeals are those which take place when a subsequently enacted law contains provisions
contrary to those of an existing law but no provisions expressly repealing them. Such repeals have
been divided into two general classes: those which occur where an act is so inconsistent or
irreconcilable with an existing prior act that only one of the two can remain in force and those which
occur when an act covers the whole subject of an earlier act and is intended to be a substitute
therefor. The validity of such a repeal is sustained on the ground that the latest expression of the
legislative will should prevail.
118

In addition, Section 534(f) of the Code states that "All general and special laws, acts, city charters,
decrees, executive orders, proclamations and administrative regulations, or part or parts thereof
which are inconsistent with any of the provisions of this Code are hereby repealed or modified
accordingly." Thus, submitting to petitioners' interpretation that the Revised Charter of Manila
empowers the City Council to prohibit motels, that portion of the Charter stating such must be
considered repealed by the Code as it is at variance with the latter's provisions granting the City
Council mere regulatory powers.
It is well to point out that petitioners also cannot seek cover under the general welfare clause
authorizing the abatement of nuisances without judicial proceedings. That tenet applies to a
nuisance per se, or one which affects the immediate safety of persons and property and may be
summarily abated under the undefined law of necessity. It can not be said that motels are injurious
to the rights of property, health or comfort of the community. It is a legitimate business. If it be a
nuisance per accidens it may be so proven in a hearing conducted for that purpose. A motel is
not per se a nuisance warranting its summary abatement without judicial intervention.
119

Notably, the City Council was conferred powers to prevent and prohibit certain activities and
establishments in another section of the Code which is reproduced as follows:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions
and appropriate funds for the general welfare of the city and its inhabitants pursuant to
Section 16 of this Code and in the proper exercise of the corporate powers of the city as
provided for under Section 22 of this Code, and shall:
(1) Approve ordinances and pass resolutions necessary for an efficient and effective city
government, and in this connection, shall:
. . .
(v) Enact ordinances intended to prevent, suppress and impose appropriate penalties for
habitual drunkenness in public places, vagrancy, mendicancy, prostitution, establishment
and maintenance of houses of ill repute, gambling and other prohibited games of
chance, fraudulent devices and ways to obtain money or property, drug addiction,
maintenance of drug dens, drug pushing, juvenile delinquency, the printing, distribution or
exhibition of obscene or pornographic materials or publications, and such other activities
inimical to the welfare and morals of the inhabitants of the city;
. . .
If it were the intention of Congress to confer upon the City Council the power to prohibit the
establishments enumerated in Section 1 of the Ordinance, it would have so declared in uncertain
terms by adding them to the list of the matters it may prohibit under the above-quoted Section.
The Ordinance now vainly attempts to lump these establishments with houses of ill-repute and
expand the City Council's powers in the second and third clauses of Section 458 (a) 4 (vii) of the
Code in an effort to overreach its prohibitory powers. It is evident that these establishments may only
be regulated in their establishment, operation and maintenance.
It is important to distinguish the punishable activities from the establishments themselves. That these
establishments are recognized legitimate enterprises can be gleaned from another Section of the
Code. Section 131 under the Title on Local Government Taxation expressly mentioned proprietors or
operators of massage clinics, sauna, Turkish and Swedish baths, hotels, motels and lodging houses
as among the "contractors" defined in paragraph (h) thereof. The same Section also defined
"amusement" as a "pleasurable diversion and entertainment," "synonymous to relaxation, avocation,
pastime or fun;" and "amusement places" to include "theaters, cinemas, concert halls, circuses and
other places of amusement where one seeks admission to entertain oneself by seeing or viewing the
show or performances." Thus, it can be inferred that the Code considers these establishments as
legitimate enterprises and activities. It is well to recall the maxim reddendo singula singulis which
means that words in different parts of a statute must be referred to their appropriate connection,
giving to each in its place, its proper force and effect, and, if possible, rendering none of them
useless or superfluous, even if strict grammatical construction demands otherwise. Likewise, where
words under consideration appear in different sections or are widely dispersed throughout an act the
same principle applies.
120

Not only does the Ordinance contravene the Code, it likewise runs counter to the provisions of P.D.
499. As correctly argued by MTDC, the statute had already converted the residential Ermita-Malate
area into a commercial area. The decree allowed the establishment and operation of all kinds of
commercial establishments except warehouse or open storage depot, dump or yard, motor repair
shop, gasoline service station, light industry with any machinery or funeral establishment. The rule is
that for an ordinance to be valid and to have force and effect, it must not only be within the powers of
the council to enact but the same must not be in conflict with or repugnant to the general law.
121
As
succinctly illustrated in Solicitor General v. Metropolitan Manila Authority:
122

The requirement that the enactment must not violate existing law explains itself. Local
political subdivisions are able to legislate only by virtue of a valid delegation of legislative
power from the national legislature (except only that the power to create their own sources of
revenue and to levy taxes is conferred by the Constitution itself). They are mere agents
vested with what is called the power of subordinate legislation. As delegates of the
Congress, the local government units cannot contravene but must obey at all times the will of
their principal. In the case before us, the enactment in question, which are merely local in
origin cannot prevail against the decree, which has the force and effect of a statute.
123

Petitioners contend that the Ordinance enjoys the presumption of validity. While this may be the rule,
it has already been held that although the presumption is always in favor of the validity or
reasonableness of the ordinance, such presumption must nevertheless be set aside when the
invalidity or unreasonableness appears on the face of the ordinance itself or is established by proper
evidence. The exercise of police power by the local government is valid unless it contravenes the
fundamental law of the land, or an act of the legislature, or unless it is against public policy or is
unreasonable, oppressive, partial, discriminating or in derogation of a common right.
124

Conclusion
All considered, the Ordinance invades fundamental personal and property rights and impairs
personal privileges. It is constitutionally infirm. The Ordinance contravenes statutes; it is
discriminatory and unreasonable in its operation; it is not sufficiently detailed and explicit that abuses
may attend the enforcement of its sanctions. And not to be forgotten, the City Council under the
Code had no power to enact the Ordinance and is therefore ultra vires, null and void.
Concededly, the challenged Ordinance was enacted with the best of motives and shares the
concern of the public for the cleansing of the Ermita-Malate area of its social sins. Police power
legislation of such character deserves the full endorsement of the judiciary we reiterate our
support for it. But inspite of its virtuous aims, the enactment of theOrdinance has no statutory or
constitutional authority to stand on. Local legislative bodies, in this case, the City Council, cannot
prohibit the operation of the enumerated establishments under Section 1 thereof or order their
transfer or conversion without infringing the constitutional guarantees of due process and equal
protection of laws not even under the guise of police power.
WHEREFORE, the Petition is hereby DENIED and the decision of the Regional Trial Court declaring
the Ordinancevoid is AFFIRMED. Costs against petitioners.
SO ORDERED.
[G.R. No. 155478. April 29, 2005]
SPOUSES GUILLERMO and ANDYLYNN HIZO, petitioners, vs. COURT
OF APPEALS and SAMMIE BACORRO, represented by Attorney-
in-Fact BENILDA BACORRO, respondents.
D E C I S I O N
CALLEJO, SR., J .:
Before us is a petition for review on certiorari of the Decision
[1]
of the Court
of Appeals (CA) in CA-G.R. SP No. 64612 and its resolution denying the
motion for reconsideration thereof.
The Antecedents
Maria Tabayoyong acquired from the Peoples Homesite and Housing
Corporation (PHHC) (now the National Housing Authority), a parcel of
residential land located at Roxas District in Quezon City, with an area of 200
square meters, covered by Transfer Certificate of Title (TCT) No. RT-
120464. The property, identified as Lot 6, Block LCH-28, Subdivision Plan
No. Psd-10783, is bounded on the northeast by a road lot, Lot 16 (now Jasmin
Street), and by Lot 13 on the southwest. She then had her house constructed
on a portion of the property. In 1966, she also allowed her sister, the
grandmother of petitioner Andylynn Hizo, to build a house on a portion of the
property. There, Linda Noble resided together with her daughter Andylynn and
the latters husband, Guillermo Hizo. In time, Tabayoyong left the Philippines
and resided in the United States of America (U.S.A). The grandparents of
petitioner Andylynn Hizo also left for the U.S.A., leaving the house in the care
of the spouses Hizo, who, in turn, leased a portion of the house to tenants
from whom they received rentals.
On March 9, 1999, Tabayoyong sold the property to her nephew, private
respondent Sammie T. Bacorro, a Filipino citizen, who later became a
naturalized U.S. citizen. Based on the said sale, Bacorro was issued TCT No.
N-205447 over the property in his name on April 30, 1999.
[2]
He then prepared
a contract of lease over a portion occupied by the spouses Hizo for a monthly
rental of P2,000.00. The contract was then sent to them for their consideration
and approval, but the latter rejected the same. In a Letter dated August 30,
1999, Bacorro wrote to the spouses Hizo and demanded that they vacate the
property, but the latter refused to do so.
Bacorro filed a complaint for unlawful detainer against the spouses Hizo in
the Metropolitan Trial Court (MTC) of Quezon City. He prayed that, after due
proceedings, judgment be rendered in his favor, thus:
WHEREFORE,

it is respectfully prayed that this Honorable Court render judgment
ordering the defendants, including any and all persons claiming right under it, to
vacate the subject premises and to pay the plaintiff the rentals thereon from June 1999
up to and including those that may accrue hereafter, plus the sum of P75,000.00 as
attorneys fees.
The plaintiff also prays for such other measures of relief which are just and equitable
under the premises.
[3]

In their Answer to the complaint, the spouses Hizo alleged that Bacorro
had no cause of action against them because it was their parents who built
their house in 1966 on the property which was owned by the
PHHC.
[4]
Moreover, a criminal complaint was filed against Tabayoyong
and Bacorro for falsification of a public document based on the latters
allegation in the deed of absolute sale that he was a Filipino citizen (when in
fact he was a naturalized American citizen).
On March 6, 2000, the trial court rendered judgment in favor of Bacorro,
ordering the spouses Hizo and all persons claiming rights under them:
a) to immediately vacate the subject premises located at No. 92 Jasmin Street,
Roxas District, Quezon City, and restore peaceful possession thereof to herein
plaintiff;
b) to pay the plaintiff the amount of TWO THOUSAND PESOS (P2,000.00) as
monthly rental, to be computed from June 1999 and every month thereafter, until
subject premises shall have been finally vacated;
c) to pay the plaintiff the sum of TWENTY THOUSAND PESOS (P20,000.00) for
and as attorneys fees; and
d) to pay the costs of suit.
SO ORDERED.
[5]

The spouses Hizo received a copy of the decision on March 27, 2000 and
appealed the same on April 4, 2000. The case was docketed as Civil Case
No. 00-41612 in the Regional Trial Court (RTC). However, on March 31,
2000, Bacorro filed an Urgent Motion for a Writ of Execution Pending
Appeal. The trial court granted the motion in an Order dated April 12,
2000. Apparently unaware of the same, Bacorro filed another motion for the
issuance of a writ of execution on April 12, 2000 and set it for hearing on April
24, 2000. The spouses Hizo filed an Omnibus Motion for the recall of the April
12, 2000 Order, with an alternative plea for a stay thereof after the approval of
their supersedeas bond.
[6]
They also prayed for the elevation of the records of
the case to the RTC. On May 29, 2000, the MTC denied the Omnibus Motion
filed by the spouses Hizo and authorized the sheriff to enforce its decision.
[7]

The spouses Hizo filed a motion for the reconsideration
[8]
of the Order,
appending thereto the Sketch Plan of Geodetic Engineer Monico Macalindol.
It was indicated therein that a 2/3 portion of the house was located in Lot 13,
Blk. LCH-28, Psd-10783. Upon the denial of the motion, the spouses Hizo
filed a petition for certiorari with the RTC, assailing the April 12, 2000 and May
29, 2000 Orders of the MTC. The case was docketed as Civil Case No. 00-
41094. The spouses Hizo adduced in evidence a copy of a Relocation Survey
prepared and signed by Renato Obra and Rommel A. Perez, showing that 1/3
portion of their house occupied 18 square meters of Bacorros property, while
a 2/3 portion thereof occupied a portion of the lot between Lot 6 and Lot 13.
The petition was later dismissed.
In the meantime, the spouses Hizo filed their Memorandum on Appeal with
the RTC in Civil Case No. 00-41612, and appended a copy of the Relocation
Survey Plan of Obra and Perez. They maintained that the 2/3 portion of their
house, which was outside Bacorros property, should not be demolished; the
MTC should have dismissed the complaint on the ground that the bigger
portion of their house was outside the perimeter of Bacorros property.
For his part, Bacorro averred in his Memorandum on Appeal that the 2/3
portion of the spouses Hizos house occupied a portion of Lot 13 a public
alley and, as such, the same was a nuisance which should be demolished.
In the meantime, Bacorro filed an urgent motion to direct the sheriff to
enforce the writ of execution issued by the MTC. The spouses Hizo opposed
the motion, contending that the enforcement of the writ on the 2/3 portion of
their house located on Lot 13 was illegal. On October 10, 2000, the court
issued an Order
[9]
granting Bacorros motion, finding irrelevant the spouses
Hizos contention that only a 1/3 portion of their house occupied the property
owned by Bacorro.
On January 29, 2001, the RTC rendered judgment affirming the appealed
decision with modification. It ruled that Bacorros right of possession was
limited to only an 18-square-meter area where the house of the spouses Hizo
stood.
[10]
The RTC further declared that the 2/3 portion of the said house
located on a portion of Lot 13 was a public alley, as shown by the Report of
Land Registration Authority Surveyor Jonathan Limpiada, appended as Annex
H of Bacorros Memorandum.
[11]
The spouses Hizo received a copy of the
decision on February 7, 2001.
Upon Bacorros receipt of the decision on February 28, 2001, he filed a
Motion to Clarify the Decision on March 14, 2001
[12]
and prayed for the
demolition of the entire house owned by the spouses Hizo. The said motion
contained the following prayer:
WHEREFORE, plaintiff respectfully prays that the court clarifies to defendants that:
1. Defendants have no right whatsoever to re-occupy the house or any portion
thereof as the land on which the house is situated partly on plaintiffs property and on
a public alley; and
2. Defendants have no right-of-way over plaintiffs property that will enable them
to re-occupy wholly or partly the house in dispute;
3. Plaintiff further moves and prays that he be allowed to demolish the whole
house, it being an integral whole and by its very construction and location cannot be
partly demolished without causing the total destruction of the whole house.
Plaintiff further prays for such other relief as the Honorable Court may deem just and
equitable in the premises.
[13]

The spouses Hizo opposed the motion on the ground that the decision
was clear and unambiguous. They also manifested that they would file a
motion with the MTC for the execution of the decision as affirmed by the RTC
upon the remand of the case records. They also averred that a motion for
clarification of the decision was not a motion for reconsideration thereof;
hence, did not stop the period for appeal via a petition for review with the CA
under Rule 42 of the Rules of Court.
[14]
As such, they claimed that the decision
of the court had become final and executory.
On April 19, 2001, the RTC issued an Order
[15]
granting the motion filed by
Bacorro. The fallo of the Order reads:
WHEREFORE, premises considered, the Court finds plaintiffs motion to clarify the
decision and cause the demolition of the entire house in order and holds as follows:
(1) That defendants have no right whatsoever over the subject property, the
house and the adjoining public alley;
(2) That since defendants have no right over the subject property, the house and
the public alley, the court finds that there is no basis for them to move for the
execution of the decision in their favor; and
(3) That since defendants have no right over the house, the court will not direct
them to demolish any portion of the house that rests on plaintiffs property; and
(4) That plaintiff is authorized to demolish that portion of the house which rests
on his property as well as the part which rests on the public alley.
Further, let the records of this case be remanded to the lower court for the
implementation of the decision as modified and the order of demolition.
SO ORDERED.
[16]

The RTC declared that Bacorro had sought a partial reconsideration of its
decision when he prayed for the demolition of the spouses Hizos house on
the ground that it partly rested on both Bacorros property and a public alley
immediately adjoining the latters property. It is also declared that it was
established that the public alley was an alternative access through which
Bacorro could enter or exit from his property, and as such, the non-demolition
of the subject house would block the latters access; moreover, such structure
constituted a fire hazard which endangered the life and property of Bacorro.
The RTC went on to declare that Bacorros actual possession or right to
possession would not be fully and sufficiently protected and restored as long
as the house or any part of it remained where it was.
[17]

The spouses Hizo filed a petition for review of the April 19, 2001 Order of
the RTC before the CA. They alleged that for Bacorros failure to file a motion
for the reconsideration of the RTC decision or to appeal therefrom via a
petition for review, such decision had become final and executory under Rule
42 of the Rules of Court. They further averred that the respondents motion
for clarification of the said decision did not toll the period for appeal; hence,
the decision of the RTC could no longer be amended or modified. The
spouses Hizo claimed that, as such, the RTC erred in issuing the assailed
order modifying its decision. They further averred that even if the motion filed
by Bacorro is considered as a motion for reconsideration of the RTC decision,
the April 19, 2001 Order was, in effect, an Amended Decision. Moreover, the
2/3 portion of the house located in an alienable public land could not be
demolished at the instance of Bacorro.
On July 29, 2002, the CA rendered judgment dismissing the petition,
holding that the assailed order of the RTC was an interlocutory one, and that
the spouses Hizo should have filed a petition for certiorari under Rule 65 of
the Rules of Court for the nullification of said order. The CA also held that the
RTC treated Bacorros motion for clarification as a motion for the
reconsideration of its decision and, in fact, modified its decision and ordered
the spouses Hizo to vacate the subject property. The CA concluded that
Bacorros motion suspended the running of the period for him to appeal the
decision. Besides, even if its decision had become final and executory, the
RTC had the authority to clarify its decision.
The spouses Hizo filed a motion for a reconsideration of the decision,
insisting that:
I
THERE IS NO ANY (SIC) EVIDENCE TO SUPPORT RESPONDENTS
POSITION THAT THE 2/3 PORTION OF THE LAND UPON WHICH
PETITIONERS RESIDENTIAL HOUSE IS ERECTED IS A PUBLIC ALLEY; IF
AT ALL, WHAT WAS PRESENTED BY THE RESPONDENT IS A MERE
SKETCH PLAN, ALLEGEDLY PREPARED BY A PERSON WHO IS NOT AN
ENGINEER, NOR A COMPETENT PERSON; ON THE CONTRARY, SAID 2/3
PORTION IS AN OPEN SPACE IDENTIFIED AS LOT NO. 13, BLK. LCH. 28,
PSD. 10723 PER THE APPROVED SURVEY/VERIFICATION PLAN,
CONDUCTED BY THE LRA, AS COMMISSIONED BY THE COURT,
THROUGH ITS LICENSED GEODETIC ENGINEER.
II
GRANTING ARGUENDO (WITHOUT HOWEVER ADMITTING), SUBJECT 2/3
PORTION OF LAND IS A PUBLIC ALLEY (THE TRUTH [IS] IT WAS NOT),
HAS (sic) PRIVATE RESPONDENT SAMMIE BACORRO, THE REQUIRED
PERSONALITY TO FILE AN EJECTMENT SUIT AGAINST THE PETITIONER,
INSOFAR AS THE 2/3 PORTION OF THE LOT OCCUPIED BY THE PLAINTIFF
IS CONCERNED?
III
PRIVATE RESPONDENTS MOTION FOR DEMOLITION CANNOT TAKE THE
PLACE OF A MOTION FOR RECONSIDERATION, AND FOR FAILURE TO
[DO] SO FILE THE REQUIRED MOTION FOR RECONSIDERATION, THE
TRIAL COURT NOT ONLY SERIOUSLY ERRED BUT EVEN COMMITTED
GRAVE ABUSE OF DISCRETION WHEN IT SAID:
Anent plaintiffs motion to demolish the whole house, it is apparent that plaintiff is
seeking for a partial reconsideration of the decision which this court can entertain as
the same was filed within the reglementary period. (2
nd
to the last par. of the April 19,
2001 Order)
[18]

However, on September 30, 2002, the CA issued a Resolution denying the
motion for reconsideration filed by the spouses Hizo.
The spouses Hizo, now the petitioners, came to the Court for relief under
Rule 45 of the Rules of Court. They contend that their petition in the CA was,
in fact, a petition for review under Rule 42 of the Rules of Court, from the April
19, 2001 Order of the RTC, which was in fact and in effect an amended
decision of Civil Case No. 41612. The petitioners assert that the period to file
their petition for review of the said amended decision is to be reckoned from
their receipt of the April 19, 2001 Order (amended decision) on April 25,
2001. Since they filed their petition for review with the CA on May 8, 2001,
their petition was filed within the fifteen-day period therefor.
The petitioners further aver that Lot 13, the property on which a 2/3 portion
of their house is located, is an empty space and not a public alley. They
allege that the said house is not a nuisance, and could not be ordered
demolished by the RTC. The petitioners further argue that even if the finding
of the RTC that the property on which the 2/3 portion of their house is
constructed on a public alley were true, the respondent has no cause of action
against them for unlawful detainer and the demolition of said portion of their
house. The petitioners insist that, in its original decision, the RTC ruled that
the government (not the respondent) had the right to cause their eviction from
the property and the demolition of the said portion of their house, and in an
action for abatement of nuisance, not one for unlawful detainer. The
petitioners maintain that the Survey Plan Reports of Geodetic Engineers
Rommel Perez and Renato Obra stating that Lot 13 is an open space and not
a public alley should prevail over the Survey Report of Jonathan Limpiada
(which states that Lot 13 is a public alley).
In his comment on the petition, the respondent averred that since it is the
contention of the petitioners that the decision of the RTC had become final
and executory when he filed his motion for clarification thereof, then the April
19, 2001 Order of the RTC must be an interlocutory order. Hence, the
remedy of the petitioners was to file a petition for certiorari under Rule 65 of
the Rules of Court, and not a petition for review under Rule 42. He further
contends that an appeal under Rule 42 of the Rules is proper only if the order
or resolution subject of the appeal is a final order or resolution. The
respondent asserts that the April 19, 2001 Order of the RTC merely clarified
its decision, and did not make any substantive modification thereof. The
respondent asserts that, whether Lot 13 (the property on which the 2/3 portion
of the house of the petitioners stands) is a public alley or an open space is a
question of fact which cannot be raised in this Court in a petition for review
on certiorari under Rule 45; so is the issue of which survey plan should
prevail, whether that of Obra and Perez, or that of Limpiada. The respondent
posits that the petitioners have no right to stay in the public alley and are
obliged to vacate the same.
The issues for resolution are the following: (1) whether or not the petition
for review filed with the CA was the proper remedy of the petitioners, and
whether it was filed on time; (2) whether the Court may delve into and resolve
the factual issues raised by the petitioners; and (3) whether the CA erred in
affirming the April 19, 2001 Order of the RTC and dismissing the petition for
review filed by the petitioners.
The Ruling of the Court
On the first issue, the CA ruled that the petitioners appealed the Decision
of the RTC, dated January 29, 2001, via petition for review on May 8, 2001, a
copy of which was received by them on February 7, 2001; hence, the petition
was filed beyond the 15-day reglementary period. The ruling of the appellate
court is incorrect. Even a cursory reading of the petition for review filed by the
petitioners will readily show that they appealed the April 19, 2001 Order of the
RTC. Indeed, in their petition, the petitioners prayed that the court set aside
the said order, and that the Decision dated January 29, 2001 be reinstated,
thus:
WHEREFORE, it is most respectfully requested of this Honorable Court that this
petition be favorably GRANTED, and the assailed 19 April 2001 Order be SET
ASIDE, and the 29 January 2001 decision be REINSTATED it being already final,
and it be categorically pronounced that the 2/3 portion of the land, as well as the
house built thereon, which petitioners actually owned, occupied/possessed be declared
as free and/or excluded from the respondent courts order of
ejectment/demolition. And even on the 1/3 portion of the house which extend to
plaintiffs title, that the law on demolition such as Sec. 10(d), Rule 39 in relation to
Art. 546 Civil Code be OBSERVED. And finally, that petitioners be ordered
RESTORED/REINSTATED to their subject house/land at least up to the 2/3 portion
of the land/house they occupied being outside plaintiffs title.
Petitioner further respectfully requests for such other reliefs that may be just and
equitable under the premises.
[19]

However, the Court agrees with the appellate courts ruling that the so-
called motion for clarification filed by the respondent of the decision of the
RTC is, in fact, a motion for partial reconsideration of the same, and not
merely what it purported to be per its caption: Motion for Clarification. Even
the RTC itself considered the said motion as a motion for the partial
reconsideration of its decision.
[20]

The respondent was, thus, prompted to file his motion for reconsideration,
as in its decision, the MTC ordered the petitioners, as the defendants therein,
to immediately vacate the subject property located at No. 92 Jasmin Street,
Roxas District, Quezon City, and surrender possession thereof to the
respondent, the plaintiff therein.
[21]
The MTC was of the impression that the
entire house of the petitioners was constructed on the respondents
property. But on appeal, it appeared that the petitioners relocated their house,
and based on the Relocation Survey Plan of Obra and Perez, only 18 square
meters of the subject property was occupied by 1/3 portion of the petitioners
house, and that the 2/3 portion thereof is located on open space, beyond the
perimeter of the respondents property. The report of Obra and Perez was
confirmed by Jonathan Limpiada, a surveyor of the Land Registration
Authority except that, contrary to the first report, the property on which the 2/3
portion of the petitioners house stood on a public alley. Based on the said
reports, the RTC rendered judgment affirming the decision of the MTC with
the modification that the petitioners should vacate and return possession to
the respondent only that portion of his property with an area of 18 square
meters, occupied by 1/3 portion of the petitioners house, since the complaint
of the respondent for unlawful detainer did not allege factual circumstances of
a complaint for abatement of a nuisance. Moreover, the MTC held that it is the
local government that should act to clear the public alley and restore the same
to its intended use:
The technical description of plaintiffs title which appears in the deed of sale plaintiff
executed with Maria Tabayoyong sufficiently identify the property of the plaintiff and
based on separate geodetic surveys conducted by LRA surveyors Oba and Limpiada
commissioned by defendants and plaintiff, respectively, a portion of defendants
house encroached plaintiffs lot. Accordingly, defendants will be required to
demolish only whatever is constructed within the boundaries of plaintiffs property.
There is no question that the part of defendants house occupying the public alley is a
nuisance. However, the complaint does not allege factual circumstances of a
complaint for abatement of a nuisance, thus, this Court cannot make a pronouncement
on this matter. Moreover, it is the local government that should act to clear the public
alley and restore it to its intended use.
[22]

The respondent maintained that the entire house of the petitioners should
be demolished based on the findings of the MTC that the petitioners were not
the owners of the house; hence, had not established their right over the
same. Also to be considered is the fact that the house is partly built on his
property and partly on a public alley, which made the house a nuisance that
can be abated. The respondent also maintained that the lack of means of
ingress and egress of the petitioners, except through the gate to Jasmin
Street, is due to the petitioners act of constructing their house on his property
and on a public alley. Moreover, according to the respondent, the demolition
of a portion of the petitioners house which occupied his property would
necessarily result in the total demolition of the house.
In fine, the respondents motion was not merely for the clarification of the
decision of the RTC, but was, in effect, for the modification of some factual
findings of the RTC, and the consequent complete affirmation of the MTC
decision, including the demolition of the entire house of the petitioners.
The Order of the RTC dated April 19, 2001, granting the respondents
motion and affirming in toto the decision of the MTC and ordering the
demolition of the entire house of the petitioners, was, in fine, an amendment
of its January 29, 2001 Decision. As such, it was final, and appealable to the
CA via a petition for review under Rule 42 of the Rules of Court within the
period therefore to be reckoned from receipt, by the petitioner, of the April 19,
2001 Order of the court.
[23]
It must be stressed that the said Order finally
disposed of the case. Nothing more remained to be done by the court except
to await the parties next move.
[24]

We agree with the contention of the petitioners that the RTC erred in
issuing its April 19, 2001 Order declaring that the petitioners had no right over
their house, and authorizing the respondent to demolish the said structure,
including that portion which occupied Lot 13, a public alley.
It was obviously imprudent, if not capricious, on the part of the RTC to
authorize the respondent to demolish the house of the petitioners. The task of
enforcing the writ of execution issued by the court is lodged on the
sheriff.
[25]
Under Section 14, Rule 39 of the Rules of Court, the sheriff shall not
destroy, demolish or remove any improvements on the property except upon
special order of the court after due hearing and after the petitioners, as
defendants, have failed to remove the same within the reasonable time fixed
by the court. If the petitioners enter the property for the purpose of executing
acts of possession or in any manner disturbing the possession of the
respondent, the petitioners may be cited for contempt.
[26]

Undeniably, the action of the respondent against the petitioners in the
MTC is one for unlawful detainer. He sought to exercise his possessory rights
over his property, Lot 6, Block LCH-28 covered by TCT No. RT-120464. The
only issue in the said case is the physical and natural possession of the
property subject of his complaint
[27]
and not that of any other property, including
Lot 13. The respondent, as plaintiff, was burdened to prove prior physical
possession of the property before 1966 when the petitioners grandparents
occupied a portion of his property and constructed a house thereon.
[28]
The
respondent adduced evidence that, indeed, the petitioners occupied a portion
of his property with an area of 18 square meters where the 1/3 portion of their
house is located. Hence, as declared by the RTC in its January 29, 2001
Decision, the petitioners were obliged to vacate that portion of the property.
The respondent had no cause of action against the petitioners for unlawful
detainer over a portion of Lot 13 on which the 2/3 portion of the house was
constructed, for the reason that the respondent is not the owner, nor does he
have any possessory rights over the said lot which is a public alley. Indeed,
the respondent did not pray in his complaint for the eviction of the petitioners
from Lot 13.
While it is true that the petitioners had not claimed ownership nor
possessory rights over Lot 13, the RTC acted beyond its jurisdiction in
allowing the respondent to cause the demolition of that portion located in Lot
13, which is beyond the perimeter of his property. The jurisdiction of the RTC
is limited to evicting the petitioners from that portion of the respondents
property with an area of 18 square meters. That the demolition of 1/3 portion
of the house of the petitioners may cause the destruction of the rest of the
house does not constitute a justification for the court to order the demolition of
the entire structure.
In People v. Court of Appeals,
[29]
this Court held that if a court is authorized
by statute to entertain jurisdiction in a particular case only and undertakes to
exercise the jurisdiction in a case to which the statute has no application, the
judgment rendered is void. The lack of statutory authority to make a particular
judgment is akin to lack of subject-matter jurisdiction.
The jurisdiction of the RTC on appeal is confined to determining whether
the decision of the MTC ordering the eviction of the petitioners from the
respondents property is in accord with the evidence and the law. It does not
include the jurisdiction to order the eviction of the petitioners and the
demolition of their house located on Lot 13, which is a public alley. As the
RTC declared in its Decision dated January 29, 2001, if the respondent
believes that a portion of the petitioners house on Lot 13 is a nuisance, or that
the petitioners and their tenants should not be allowed to use his property
(including the gate to Jasmin Street as a means of ingress and egress) then
the remedy of the respondent is elsewhere, not in the MTC in an action for
unlawful detainer.
IN LIGHT OF ALL THE FOREGOING, the April 19, 2001 Order of the
Regional Trial Court in Civil Case No. 00-41612 is SET ASIDE. The March 6,
2000 Decision of the Municipal Trial Court, as affirmed by the Regional Trial
Court with modification, is REINSTATED. No costs.
SO ORDERED.