DICANG, VAN OLIVER M.

Baguio City

ATTY. VICENTE E. SALUMBIDES, JR., and GLENDA ARAA, Petitioners, vs. OFFICE OF
THE OMBUDSMAN, RICARDO AGON, RAMON VILLASANTA, ELMER DIZON, SALVADOR
ADUL, and AGNES FABIAN, Respondents,
GR No. 180917

April 20, 2010

FACTS OF THE CASE:

Vicente Jr. (Salumbides) and Glenda (Arana), Municipal Legal Officer/Administrator and
Municipal Budget Officer, respectively, of Tagkaywayan, Quezon, along with Mayor Vicente III
(Salumbides) were charged administratively in connection with the construction of a twoclassroom building for the Tagkawayan Municipal High School, without the required
appropriation of the Sangguniang Bayan, and without public bidding, the funds for which they
sourced from the Maintenance and Other Operating Expenses/Repair and Maintenance of
Facilities (MOOE/RMF) for the year 2002, as was allegedly done by the previous administration.
Construction proceeded, and even after the project was included in the list of projects to be
bidder, no bidders participated. The other members of the Sangguniang Bayan then filed with
the Office of the Ombudsman an administrative case for Dishonesty, Grave Misconduct, Gross
Neglect of Duty, Conduct Prejudicial to the Best Interest of the Service, and violation of the
Commission on Audit (COA) Rules and the Local Government Code. By order of June 14, 2002,
the OMB denied the prayer for issuance of preventive suspension order, and on February 1,
2005, approved on April 11, 2005, denied the motion for reconsideration but dropped Mayor
Vicente and Councilor Coleta from the charges in view of their reelection in the 2004 elections.
The OMB later found Vicente Jr. And Glenda liable for Simple Neglect of Duty and imposed a
six-month suspension upon them. Their motion for reconsideration denied, they elevated their
case to the Supreme Court after their petition for certiorari was denied by the CA. They argue
that the principle of condonation should be expanded to cover coterminous appointive officials
who were administratively charged along with the reelected official/appointing authority with
infractions allegedly committed during their preceding term.
RESOLUTION OF THE CASE:
For non-compliance with the rule on certification against forum shopping, the petition
merits outright dismissal. The verification portion of the petition does not carry a certification
against forum shopping[1].
The Court has distinguished the effects of non-compliance with the requirement of
verification and that of certification against forum shopping. A defective verification shall be
treated as an unsigned pleading and thus produces no legal effect, subject to the discretion of
the court to allow the deficiency to be remedied, while the failure to certify against forum
shopping shall be cause for dismissal without prejudice, unless otherwise provided, and is not
curable by amendment of the initiatory pleading[2].
Petitioners disregard of the rules was not the first. Their motion for extension of time to
file petition was previously denied by Resolution of January 15, 2008[3] for non-compliance with
the required showing of competent proof of identity in the Affidavit of Service. The Court, by
Resolution of March 4, 2008,[4] later granted their motion for reconsideration with motion to
admit appeal (Motion with Appeal) that was filed on February 18, 2008 or the last day of filing
within the extended period.

DICANG, VAN OLIVER M.

Baguio City

Moreover, in their Manifestation/Motion[5] filed a day later, petitioners prayed only for the
admission of nine additional copies of the Motion with Appeal due to honest inadvertence in
earlier filing an insufficient number of copies. Petitioners were less than candid when they
surreptitiously submitted a Motion with Appeal which is different from the first set they had
submitted. The second set of Appeal includes specific Assignment of Errors[6] and already
contains a certification against forum shoppin[7] embedded in the Verification. The two different
Verifications were notarized by the same notary public and bear the same date and document
number[8]. The rectified verification with certification, however, was filed beyond the
reglementary period.
Its lapses aside, the petition just the same merits denial.
Petitioners urge this Court to expand the settled doctrine of condonation[9] to cover
coterminous appointive officials who were administratively charged along with the reelected
official/appointing authority with infractions allegedly committed during their preceding term.
The Court rejects petitioners thesis.
More than 60 years ago, the Court in Pascual v. Hon. Provincial Board of Nueva
Ecija[10] issued the landmark ruling that prohibits the disciplining of an elective official for a
wrongful act committed during his immediately preceding term of office. The Court explained
that [t]he underlying theory is that each term is separate from other terms, and that the
reelection to office operates as a condonation of the officers previous misconduct to the extent
of cutting off the right to remove him therefor[11].
The Court should never remove a public officer for acts done prior to his present term of
office. To do otherwise would be to deprive the people of their right to elect their officers. When
the people elect[e]d a man to office, it must be assumed that they did this with knowledge of his
life and character, and that they disregarded or forgave his faults or misconduct, if he had been
guilty of any. It is not for the court, by reason of such faults or misconduct[,] to practically
overrule the will of the people[12]. (underscoring supplied)
Lizares v. Hechanova, et al[13]l. replicated the doctrine. The Court dismissed the petition
in that case for being moot, the therein petitioner having been duly reelected, is no longer
amenable to administrative sanctions[14].
Ingco v. Sanchez, et al[15]. clarified that the condonation doctrine does not apply to a
criminal case[16]. Luciano v. The Provincial Governor, et al[17]., Olivarez v. Judge Villaluz,[18]
and Aguinaldo v. Santos[19] echoed the qualified rule that reelection of a public official does not
bar prosecution for crimes committed by him prior thereto.
Consistently, the Court has reiterated the doctrine in a string of recent jurisprudence
including two cases involving a Senator and a Member of the House of Representatives[20].
Salalima v. Guingona, Jr[21]. and Mayor Garcia v. Hon. Mojica[22]a reinforced the
doctrine. The condonation rule was applied even if the administrative complaint was not filed
before the reelection of the public official, and even if the alleged misconduct occurred four days
before the elections, respectively. Salalima did not distinguish as to the date of filing of the
administrative complaint, as long as the alleged misconduct was committed during the prior
term, the precise timing or period of which Garcia did not further distinguish, as long as the
wrongdoing that gave rise to the public officials culpability was committed prior to the date of
reelection.

DICANG, VAN OLIVER M.

Baguio City

Petitioners theory is not novel.

A parallel question was involved in Civil Service Commission v. Sojor[23] where the
Court found no basis to broaden the scope of the doctrine of condonation:
Lastly, We do not agree with respondents contention that his appointment to the position
of president of NORSU, despite the pending administrative cases against him, served as a
condonation by the BOR of the alleged acts imputed to him. The doctrine this Court laid down in
Salalima v. Guingona, Jr. and Aguinaldo v. Santos are inapplicable to the present
circumstances. Respondents in the mentioned cases are elective officials, unlike respondent
here who is an appointed official. Indeed, election expresses the sovereign will of the people.
Under the principle of vox populi est suprema lex, the re-election of a public official may, indeed,
supersede a pending administrative case. The same cannot be said of a re-appointment to a
non-career position. There is no sovereign will of the people to speak of when the BOR reappointed respondent Sojor to the post of university president[24]. (emphasis and underscoring
supplied)lawph!l
Contrary to petitioners asseveration, the non-application of the condonation doctrine to
appointive officials does not violate the right to equal protection of the law.
In the recent case of Quinto v. Commission on Elections[25], the Court applied the fourfold test in an equal protection challenge[26] against the resign-to-run provision, wherein it
discussed the material and substantive distinctions between elective and appointive officials that
could well apply to the doctrine of condonation:
The equal protection of the law clause is against undue favor and individual or class
privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to
prohibit legislation which is limited either in the object to which it is directed or by territory within
which it is to operate. It does not demand absolute equality among residents; it merely requires
that all persons shall be treated alike, under like circumstances and conditions both as to
privileges conferred and liabilities enforced. The equal protection clause is not infringed by
legislation which applies only to those persons falling within a specified class, if it applies alike
to all persons within such class, and reasonable grounds exist for making a distinction between
those who fall within such class and those who do not.
Substantial distinctions clearly exist between elective officials and appointive officials.
The former occupy their office by virtue of the mandate of the electorate. They are elected to an
office for a definite term and may be removed therefrom only upon stringent conditions. On the
other hand, appointive officials hold their office by virtue of their designation thereto by an
appointing authority. Some appointive officials hold their office in a permanent capacity and are
entitled to security of tenure while others serve at the pleasure of the appointing authority.
xxxx
An election is the embodiment of the popular will, perhaps the purest expression of the
sovereign power of the people. It involves the choice or selection of candidates to public office
by popular vote. Considering that elected officials are put in office by their constituents for a
definite term, x x x complete deference is accorded to the will of the electorate that they be
served by such officials until the end of the term for which they were elected. In contrast, there

DICANG, VAN OLIVER M.

Baguio City

is no such expectation insofar as appointed officials are concerned. (emphasis and

underscoring supplied)
The electorates condonation of the previous administrative infractions of the reelected
official cannot be extended to that of the reappointed coterminous employees, the underlying
basis of the rule being to uphold the will of the people expressed through the ballot. In other
words, there is neither subversion of the sovereign will nor disenfranchisement of the electorate
to speak of, in the case of reappointed coterminous employees.
It is the will of the populace, not the whim of one person who happens to be the
appointing authority, that could extinguish an administrative liability. Since petitioners hold
appointive positions, they cannot claim the mandate of the electorate. The people cannot be
charged with the presumption of full knowledge of the life and character of each and every
probable appointee of the elective official ahead of the latters actual reelection.
Moreover, the unwarranted expansion of the Pascual doctrine would set a dangerous
precedent as it would, as respondents posit, provide civil servants, particularly local government
employees, with blanket immunity from administrative liability that would spawn and breed
abuse in the bureaucracy.
Asserting want of conspiracy, petitioners implore this Court to sift through the evidence
and re-assess the factual findings. This the Court cannot do, for being improper and immaterial.
Under Rule 45 of the Rules of Court, only questions of law may be raised, since the
Court is not a trier of facts[27]. As a rule, the Court is not to review evidence on record and
assess the probative weight thereof. In the present case, the appellate court affirmed the factual
findings of the Office of the Ombudsman, which rendered the factual questions beyond the
province of the Court.
Moreover, as correctly observed by respondents, the lack of conspiracy cannot be
appreciated in favor of petitioners who were found guilty of simple neglect of duty, for if they
conspired to act negligently, their infraction becomes intentiona[28]l. There can hardly be
conspiracy to commit negligence[29].
Simple neglect of duty is defined as the failure to give proper attention to a task
expected from an employee resulting from either carelessness or indifference[30]. In the present
case, petitioners fell short of the reasonable diligence required of them, for failing to exercise
due care and prudence in ascertaining the legal requirements and fiscal soundness of the
projects before stamping their imprimatur and giving their advice to their superior.
The appellate court correctly ruled that as municipal legal officer, petitioner Salumbides
failed to uphold the law and provide a sound legal assistance and support to the mayor in
carrying out the delivery of basic services and provisions of adequate facilities when he advised
[the mayor] to proceed with the construction of the subject projects without prior competitive
bidding[31]. As pointed out by the Office of the Solicitor General, to absolve Salumbides is
tantamount to allowing with impunity the giving of erroneous or illegal advice, when by law he is
precisely tasked to advise the mayor on matters related to upholding the rule of law.[32]
Indeed, a legal officer who renders a legal opinion on a course of action without any legal basis
becomes no different from a lay person who may approve the same because it appears
justified.

DICANG, VAN OLIVER M.

Baguio City

As regards petitioner Glenda, the appellate court held that the improper use of
government funds upon the direction of the mayor and prior advice by the municipal legal officer
did not relieve her of liability for willingly cooperating rather than registering her written
objection[33] as municipal budget officer.
Aside from the lack of competitive bidding, the appellate court, pointing to the improper
itemization of the expense, held that the funding for the projects should have been taken from
the capital outlays that refer to the appropriations for the purchase of goods and services, the
benefits of which extend beyond the fiscal year and which add to the assets of the local
government unit. It added that current operating expenditures like MOOE/RMF refer to
appropriations for the purchase of goods and services for the conduct of normal local
government operations within the fiscal year.[34]
In Office of the Ombudsman v. Tongson[35], the Court reminded the therein
respondents, who were guilty of simple neglect of duty, that government funds must be
disbursed only upon compliance with the requirements provided by law and pertinent rules.
Simple neglect of duty is classified as a less grave offense punishable by suspension without
pay for one month and one day to six months. Finding no alleged or established circumstance to
warrant the imposition of the maximum penalty of six months, the Court finds the imposition of
suspension without pay for three months justified.
When a public officer takes an oath of office, he or she binds himself or herself to
faithfully perform the duties of the office and use reasonable skill and diligence, and to act
primarily for the benefit of the public. Thus, in the discharge of duties, a public officer is to use
that prudence, caution, and attention which careful persons use in the management of their
affairs[36].
Public service requires integrity and discipline. For this reason, public servants must
exhibit at all times the highest sense of honesty and dedication to duty. By the very nature of
their duties and responsibilities, public officers and employees must faithfully adhere to hold
sacred and render inviolate the constitutional principle that a public office is a public trust; and
must at all times be accountable to the people, serve them with utmost responsibility, integrity,
loyalty and efficiency[37].
WHEREFORE, the assailed Decision and Resolution of the Court of Appeals in CA-G.R.
SP No. 96889 are AFFIRMED with MODIFICATION, in that petitioners, Vicente Salumbides, Jr.
and Glenda Araa, are suspended from office for three (3) months without pay.

DICANG, VAN OLIVER M.

Baguio City

CRISOSTOMO B. AQUINO, PETITIONER, VS. MUNICIPALITY OF MALAY, AKLAN,

REPRESENTED BY HON. MAYOR JOHN P. YAP, SANGGUNIANG BAYAN OF MALAY,
AKLAN, REPRESENTED BY HON. EZEL FLORES, DANTE PASUGUIRON, ROWEN
AGUIRRE, WILBEC GELITO, JUPITER GALLENERO, OFFICE OF THE MUNICIPAL
ENGINEER, OFFICE OF THE MUNICIPAL TREASURER, BORACAY PNP CHIEF, BORACAY
FOUNDATION, INC., REPRESENTED BY NENETTE GRAF, MUNICIPAL AUXILIARY
POLICE, AND JOHN AND JANE DOES, RESPONDENTS.
GR NO. 211356

September 29, 2014

FACTS OF THE CASE:

The Municipal Mayor of Aklan issued Executive Order 10, to close and demolish the
Boracay West Cove Hotel. The antecedents of the case reveal that Crisostomo, the president
and CEO of Boracay Island West Cove Management Philippines, Inc applied for a zoning
compliance to build a three-storey hotel with the municipal government, which the Municipal
Zoning Administrator denied because the construction violates the no-build zone of Municipal
Ordinance No. 2000-131, which prohibits constructions 25 meters from the edge of the mean
high water mark. Crisostomo filed an appeal with the Municipal Mayor, but no action was taken
thereon. On April 5, 2011, a Notice of Assessment was sent to Crisostomo demanding payment
for unpaid real estate estate taxes and other liabilities under pain of closure because of its
continuos operation without the required building permit, zoning permit, and business and
mayors permit. Crisostomo expressed willingness to pay the companys obligation but the
municipal treasurer refused to accept his tender of payment. After a Cease and Desist Order
was issued to the hotel, the Municipal Mayor then issued EO 10 which ordered the closure and
demolition of the hotel. EO 10 was partially implemented. Crisostomo thus filed a petition for
certiorari with the Court of Appeals, alleging that the order was issued with grave abuse of
discretion; that judicial proceedings are first necessary before the hotel may be closed and
demolished; that the hotel is a grantee of FLAGt., that the area is a forestland thus the DENR
had jurisdiction over it. In its comment, the municipality argued that the FLAGt does not excuse
the company from compliance with the Ordinance and the National Building Code, and that the
mayor is granted express powers under the Local Government Code to demolish illegally built
structures.
The CA dismissed the petition for certiorari, holding that the exercise of the power of the
mayor was not done as a quasi-judicial function, hence not correctible by certiorari; the proper
remedy for Crisostomo was to file a petition for declaratory relief with the Regional Trial Court.
Crisostomo elevated his case to the Supreme Court, alleging that the demolition of the hotel
was beyond the municipal mayors powers.
RESOLUTION OF THE COURT:
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

DICANG, VAN OLIVER M.

Baguio City

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.
In establishing a no build zone through local legislation, the LGU effectively made a
determination that constructions therein, without first securing exemptions from the local council,
qualify as nuisances for they pose a threat to public safety. No build zones are intended for the
protection of the public because the stability of the grounds foundation is adversely affected by
the nearby body of water. The ever present threat of high rising storm surges also justifies the
ban on permanent constructions near the shoreline. Indeed, the areas exposure to potential
geo-hazards cannot be ignored and ample protection to the residents of Malay, Aklan should be
afforded.
Challenging the validity of the public respondents actuations, petitioner posits that the
hotel cannot summarily be abated because it is not a nuisance per se, given the hundred million
peso-worth of capital infused in the venture. Citing Asilo, Jr. v. People, petitioner also argues
that respondents should have first secured a court order before proceeding with the demolition.
Preliminarily, We agree with petitioners posture that the property involved cannot be
classified as a nuisance per se, but not for the reason he so offers. Property valuation, after all,
is not the litmus test for such a determination. More controlling is the propertys nature and
conditions, which should be evaluated to see if it qualifies as a nuisance as defined under the
law.
As jurisprudence elucidates, nuisances are of two kinds: nuisance per se and nuisance
per accidens. The first is recognized as a nuisance under any and all circumstances, because it
constitutes a direct menace to public health or safety, and, for that reason, may be abated
summarily under the undefined law of necessity. The second is that which depends upon certain
conditions and circumstances, and its existence being a question of fact, it cannot be abated
without due hearing thereon in a tribunal authorized to decide whether such a thing does in law
constitute a nuisance.
In the case at bar, the hotel, in itself, cannot be considered as a nuisance per se since
this type of nuisance is generally defined as an act, occupation, or structure, which is a
nuisance at all times and under any circumstances, regardless of location or surrounding. Here,
it is merely the hotels particular incidentits locationand not its inherent qualities that
rendered it a nuisance. Otherwise stated, had it not been constructed in the no build zone,
Boracay West Cove could have secured the necessary permits without issue. As such,
petitioner is correct that the hotel is not a nuisance per se, but to Our mind, it is still a nuisance
per accidens.
xxx
Generally, LGUs have no power to declare a particular thing as a nuisance unless such
a thing is a nuisance per se. So it was held in AC Enterprises v. Frabelle Properties Corp:
We agree with petitioners 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 nuisance
per 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

DICANG, VAN OLIVER M.

Baguio City

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)
Despite the hotels classification as a nuisance per accidens, however, We still find in
this case that the LGU may nevertheless properly order the hotels demolition. This is because,
in the exercise of police power and the general welfare clause, property rights of individuals may
be subjected to restraints and burdens in order to fulfill 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.
One such piece of legislation is the LGC, which authorizes city and municipal
governments, acting through their local chief executives, to issue demolition orders. Under
existing laws, the office of the mayor is given powers not only relative to its function as the
executive official of the town; it has also been endowed with authority to hear issues involving
property rights of individuals and to come out with an effective order or resolution thereon.
Pertinent herein is Sec. 444 (b)(3)(vi) of the LGC, which empowered the mayor to order the
closure and removal of illegally constructed establishments for failing to secure the necessary
permits, to wit:
Section 444. The Chief Executive: Powers, Duties, Functions and Compensation.
xxxx
(b) For efficient, effective and economical governance the purpose of which is the
general welfare of the municipality and its inhabitants pursuant to Section 16 of this Code, the
municipal mayor shall:
xxxx
(3) Initiate and maximize the generation of resources and revenues, and apply the same
to the implementation of development plans, program objectives and priorities as provided for
under Section 18 of this Code, particularly those resources and revenues programmed for agroindustrial development and country-wide growth and progress, and relative thereto, shall:
xxxx
(vi) Require owners of illegally constructed houses, buildings or other structures to
obtain the necessary permit, subject to such fines and penalties as may be imposed by law or
ordinance, or to make necessary changes in the construction of the same when said
construction violates any law or ordinance, or to order the demolition or removal of said house,
building or structure within the period prescribed by law or ordinance. (emphasis supplied)
xxx
In the case at bar, petitioner admittedly failed to secure the necessary permits,
clearances, and exemptions before the construction, expansion, and operation of Boracay Wet
Coves hotel in Malay, Aklan. To recall, petitioner declared that the application for zoning
compliance was still pending with the office of the mayor even though construction and
operation were already ongoing at the same time. As such, it could no longer be denied that
petitioner openly violated Municipal Ordinance 2000-131, which provides:

DICANG, VAN OLIVER M.

Baguio City

XXXXX
Petitioner cannot justify his position by passing the blame onto the respondent mayor
and the latters failure to act on his appeal for this does not, in any way, imply that petitioner can
proceed with his infrastructure projects. On the contrary, this only means that the decision of the
zoning administrator denying the application still stands and that petitioner acquired no right to
construct on the no build zone. The illegality of the construction cannot be cured by merely
tendering payment for the necessary fees and permits since the LGUs refusal rests on valid
grounds.
Instead of taking the law into his own hands, petitioner could have filed, as an
alternative, a petition for mandamus to compel the respondent mayor to exercise discretion and
resolve the controversy pending before his office. There is indeed an exception to the rule that
matters involving judgment and discretion are beyond the reach of a writ of mandamus, for such
writ may be issued to compel action in those matters, when refused. Whether or not the
decision would be for or against petitioner would be for the respondent mayor to decide, for
while mandamus may be invoked to compel the exercise of discretion, it cannot compel such
discretion to be exercised in a particular way. What would have been important was for the
respondent mayor to immediately resolve the case for petitioner to be able to go through the
motions that the zoning clearance application process entailed.
xxx
In the case at bench, the due process requirement is deemed to have been sufficiently
complied with. First, basic is the rule that public officers enjoy the presumption of regularity in
the performance of their duties. The burden is on the petitioner herein to prove that Boracay
West Cove was deprived of the opportunity to be heard before EO 10 was issued. Regrettably,
copies of the Cease and Desist Order issued by the LGU and of the assailed EO 10 itself were
never attached to the petition before this Court, which documents could have readily shed light
on whether or not petitioner has been accorded the 10-day grace period provided in Section 10
of the Ordinance. In view of this fact, the presumption of regularity must be sustained. Second,
as quoted by petitioner in his petition before the CA, the assailed EO 10 states that petitioner
received notices from the municipality government on March 7 and 28, 2011, requiring Boracay
West Cove to comply with the zoning ordinance and yet it failed to do so. If such was the case,
the grace period can be deemed observed and the establishment was already ripe for closure
and demolition by the time EO 10 was issued in June. Third, the observance of the 10-day
allowance for the owner to demolish the hotel was never questioned by petitioner so there is no
need to discuss the same. Verily, the only grounds invoked by petitioner in crying due process
violation are (1) the absence of a court order prior to demolition and (2) the municipal
governments exercise of jurisdiction over the controversy instead of the DENR. Therefore, it
can no longer be belatedly argued that the 10-day grace period was not observed because to
entertain the same would result in the violation of the respondents own due process rights.
Given the presence of the requirements under Sec. 444 (b)(3)(vi) of the LGC, whether
the building constituted a nuisance per se or a nuisance per accidens becomes immaterial. The
hotel was demolished not exactly because it is a nuisance but because it failed to comply with
the legal requirements prior to construction. It just so happened that, in the case at bar, the
hotels incident that qualified it as a nuisance per accidensits being constructed within the no
build zonefurther resulted in the non-issuance of the necessary permits and clearances,
which is a ground for demolition under the LGC. Under the premises, a court order that is
required under normal circumstances is hereby dispensed with.

DICANG, VAN OLIVER M.

Baguio City

ABRAHAM RIMANDO, PETITIONER, VS. NAGUILIAN EMISSION TESTING CENTER, INC.,

REPRESENTED BY ITS PRESIDENT, ROSEMARIE LLARENAS AND HON. COURT OF
APPEALS, RESPONDENTS.
GR NO. 198860

July 23, 2012

FACTS OF THE CASE:

Naguillian Emission Testing Center Inc., filed a petition for mandamus and damages
against Abraham Rimando (petitioner), the municipal mayor of Naguilian, La Union. In its
complaint, the company alleged that from 2005 to 2007 its business is located on a land
formerly belonging to the national government which was later certified as an alienable and
disposable land of the public domain by the DENR. On January 18, 2008, it applied for a
renewal of its business permit and paid the corresponding fees, but the petitioner refused to
issue a business permit, until such time that the company executes a contract of lease with the
municipality; the respondent is amenable to signing the contract but with some revisions, which
the petitioner did not accept; no common ground was reached among the parties, hence the
company filed the petition. The RTC ruled in favour of the petitioner; ratiocinating that: (a) the
Municipality of Naguiian is the declared owner of the subject parcel of land by virtue of Tax
Declaration No. 002-01197; (b) under Section 6A.01 of the Revenue Code of the Municipality of
Naguilian, the municipality has the right to require the petitioner to sign a contract of lease
because its business operation is being conducted on a real property owned by the municipality;
and (c) a mayors duty to issue business permits is discretionary in nature which may not be
enforced by a mandamus writ.
On appeal, the CA proceeded to discuss the merits of the case even though the petition
itself is dismissible on the ground of mootness. It held that the factual milieu of the case justifies
issuance of the writ; the tax declaration in the name of the municipality was insufficient basis to
require the execution of a contract of lease as a condition sine qua non for the renewal of a
business permit. The CA further observed that Sangguniang Bayan Resolution No. 2007-81,
upon which the municipality anchored its imposition of rental fees, was void because it failed to
comply with the requirements of the Local Government Code and its Implementing Rules and
Regulations. It held the mayor not liable for damages since he acted in the performance of his
duties which are legally protected by the presumption of regularity in the performance of official
duty; the case against the mayor also was moot and academic since his term as mayor expired.
Nevertheless, the CA reversed and set aside the RTC decision.
The petitioner elevated the matter to the Supreme Court.
ISSUE:
Whether or not the issue had become moot and academic;

DICANG, VAN OLIVER M.

Baguio City

Whether or not the issuance of a business permit maybe compelled thru a petition for
mandamus.
RULING OF THE COURT:
The court agrees with the CA that the petition for mandamus has already become moot
and academic owing to the expiration of the period intended to be covered by the business
permit.
An issue or a case becomes moot and academic when it ceases to present a justiciable
controversy so that a determination thereof would be without practical use and value1 or in the
nature of things, cannot be enforced.2 In such cases, there is no actual substantial relief to
which the applicant would be entitled to and which would be negated by the dismissal of the
petition.3 As a rule, courts decline jurisdiction over such case, or dismiss it on ground of
mootness.4
The objective of the petition for mandamus to compel the petitioner to grant a business
permit in favor of respondent corporation for the period 2008 to 2009 has already been
superseded by the passage of time and the expiration of the petitioners term as mayor. Verily
then, the issue as to whether or not the petitioner, in his capacity as mayor, may be compelled
by a writ of mandamus to release the respondents business permit ceased to present a
justiciable controversy such that any ruling thereon would serve no practical value. Should the
writ be issued, the petitioner can no longer abide thereby; also, the effectivity date of the
business permit no longer subsists.
While the CA is not precluded from proceeding to resolve the otherwise moot appeal of
the respondent, we find that the decretal portion of its decision was erroneously couched.
The CAs conclusions on the issue of ownership over the subject land and the invalidity
of Sangguniang Bayan Resolution No. 2007-81, aside from being unsubstantiated by convincing
evidence, can no longer be practically utilized in favor of the petitioner. Thus, the overriding and
decisive factor in the final disposition of the appeal was its mootness and the CA should have
dismissed the same along with the petition for mandamus that spawned it.
More importantly, a mayor cannot be compelled by mandamus to issue a business
permit since the exercise of the same is a delegated police power hence, discretionary in
nature. This was the pronouncement of this Court in Roble Arrastre, Inc. v. Hon. Villaflor5 where
a determination was made on the nature of the power of a mayor to grant business permits
under the Local Government Code6, viz:
Central to the resolution of the case at bar is a reading of Section 444(b)(3)(iv) of the
Local Government Code of 1991, which provides, thus:
SEC. 444. The Chief Executive: Powers, Duties, Functions and Compensation.
(b) For efficient, effective and economical governance the purpose of which is the general
welfare of the municipality and its inhabitants pursuant to Section 16 of this Code, the municipal
mayor shall: x x x x

DICANG, VAN OLIVER M.

Baguio City

3) Initiate and maximize the generation of resources and revenues, and apply the same to the
implementation of development plans, program objectives and priorities as provided for under
Section 18 of this Code, particularly those resources and revenues programmed for
agroindustrial development and country-wide growth and progress, and relative thereto, shall:
xxxx
(iv) Issue licenses and permits and suspend or revoke the same for any violation of the
conditions upon which said licenses or permits had been issued, pursuant to law or ordinance.
As Section 444(b)(3)(iv) so states, the power of the municipal mayor to issue licenses is
pursuant to Section 16 of the Local Government Code of 1991, which declares:
SEC. 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.
Section 16, known as the general welfare clause, encapsulates the delegated police power to
local governments. Local government units exercise police power through their respective
legislative bodies. Evidently, the Local Government Code of 1991 is unequivocal that the
municipal mayor has the power to issue licenses and permits and suspend or revoke the same
for any violation of the conditions upon which said licenses or permits had been issued,
pursuant to law or ordinance. x x x
xxxx
Section 444(b)(3)(iv) of the Local Government Code of 1991, whereby the power of the
respondent mayor to issue license and permits is circumscribed, is a manifestation of the
delegated police power of a municipal corporation. Necessarily, the exercise thereof cannot be
deemed ministerial. As to the question of whether the power is validly exercised, the matter is
within the province of a writ of certiorari, but certainly, not of mandamus.7 (Citations omitted)
Indeed, as correctly ruled by the RTC, the petition for mandamus filed by the respondent
is incompetent to compel the exercise of a mayors discretionary duty to issue business permits.
WHEREFORE, premises considered, the Decision dated March 30, 2011 of the Court of
Appeals in CA-G.R. SP No. 112152 is hereby SET ASIDE. The Decision dated May 26, 2009 of
the Regional Trial Court of Bauang, La Union is REINSTATED.

DICANG, VAN OLIVER M.

Baguio City

RAMONITO O. ACAAC, PETAL FOUNDATION, INC., APOLINARIO M. ELORDE, HECTOR

ACAAC, AND ROMEO BULAWIN, PETITIONERS, VS. MELQUIADES D. AZCUNA, JR., IN
HIS CAPACITY AS MAYOR, AND MARIETES B. BONALOS, IN HER CAPACITY AS
MUNICIPAL ENGINEER AND BUILDING OFFICIAL-DESIGNATE, BOTH OF LOPEZ JAENA
MUNICIPALITY, MISAMIS OCCIDENTAL, RESPONDENTS.
GR NO. 187378

September 30, 2013

FACTS OF THE CASE:

Peoples Eco-Tourism and Livelihood foundation Inc. (PETAL), an NGO engaged in the
protection and conservation of ecology, tourism, and livelihood, and founded by petitioner
Ramonito Acaac built some cottages made of indigenous materials and a seminar cottage on
Capayas Island, Lopez Jaena municipality which it rented out to the public. On April 11 and
May 20, 2002, however, Mayor Melquiades Azcuna and Building Official Marietes Bantos issued
Notices of Illegal Construction against PETAL and the petitioners allegedly for failure to apply for
a building permit prior to the construction of the cottages. PETAL refused to comply, hence the
respondents issued Third and Final Notices of Illegal Construction. On July 8, 2002, the
Sangguniang Bayan adopted Municipal Ordinance No. 02 Series of 2002, prohibiting the entry
of any entity, organisation, association or corporation, and the construction of structures,
permanent or temporary on the premises of Capayas Island, except if authorised by the
government. Azcuna approved the ordinance, hence it was forwarded to the Sangguniang
Panlalawigan which conducted public hearings on the matter. Notices were also posted at
Capayas Island prohibiting the ingress and egress thereto. A Notice of Voluntary Demoliton was
served on PETAL forts is alleged numerous violations of the ordinance. Thus, PETAL and the
individual petitioners filed an action for the issuance of a preliminary injunction and damages
against the respondents, claiming tat stye hav prior physical possession of the property.
Morevoer, Municipal Ordinance No, 02 Series of 2002 was void since it was adopted without a
prior public consultation, not published in a newspaper of general publication in the provide as
required under RA 7160, and it was not approved by the Sangguniang Panlalawigan. On the
other hand, the respondents averred that the petitioners have no cause of action against them,
Capayas Island not being owned by them since it is a timberland property belonging to the
public domain. The ordinance was deemed approved by operation of law for failure of the SP to
act on it within 30 days; and they have complied with the publication and posting requirements.
After trial, the RTC rendered judgment in favour of the petitioners. It ruled that the
ordinance was not approved by the SP; neither was it published in a newspaper of general
publication as required and/or posted; the authority and control over the timberland belong to
the national government through the DENR. It therefore enjoined the respondents to desist
from closing Capayas Island.

DICANG, VAN OLIVER M.

Baguio City

The Court of Appeals, however reversed the RTC ruling. The ordinance was deemed
approved by the SP upon failure of the latter to act on it within 30 days; under Section 447 of the
Local Government Code, the municipality of Lopez Jaena was clothed with sufficient power to
pass and adopt the ordinance, thus it is not only the DENR that could administer the
sanctuaries. It also grave credence to the claim by the municipality that it conducted public
consultations before passing the municipality as well as complied with the publication and
posting requirement.
The petitioners interposed their appeal to the Supreme Court.
ISSUE:
Whether or not the ordinance in question was valid.
RULING OF THE COURT:
The petition lacks merit.
Section 56 of the LGC provides:
SEC. 56. Review of Component City and Municipal Ordinances or Resolutions by the
Sangguniang Panlalawigan. (a) Within three (3) days after approval, the secretary to the
Sangguniang Panlungsod or Sangguniang Bayan shall forward to the Sangguniang
Panlalawigan for review, copies of approved ordinances and the resolutions approving the local
development plans and public investment programs formulated by the local development
councils.
(b) Within thirty (30) days after receipt of copies of such ordinances and resolutions, the
Sangguniang Panlalawigan shall examine the documents or transmit them to the provincial
attorney, or if there be none, to the provincial prosecutor for prompt examination. The provincial
attorney or provincial prosecutor shall, within a period of ten (10) days from receipt of the
documents, inform the Sangguniang Panlalawigan in writing his comments or
recommendations, which may be considered by the Sangguniang Panlalawigan in making its
decision.
(c) If the Sangguniang Panlalawigan finds that such an ordinance or resolution is beyond the
power conferred upon the Sangguniang Panlungsod or Sangguniang Bayan concerned, it shall
declare such ordinance or resolution invalid in whole or in part. The Sangguniang Panlalawigan
shall enter its action in the minutes and shall advise the corresponding city or municipal
authorities of the action it has taken.
(d) If no action has been taken by the Sangguniang Panlalawigan within thirty (30) days after
submission of such an ordinance or resolution, the same shall be presumed consistent with law
and therefore valid.
In this case, petitioners maintain that the subject ordinance cannot be deemed approved
through the mere passage of time considering that the same is still pending with the Committee
on Fisheries and Aquatic Resources of the SP.1 It, however, bears to note that more than 30
days have already elapsed from the time the said ordinance was submitted to the latter for

DICANG, VAN OLIVER M.

Baguio City

review by the SB;2 hence, it should be deemed approved and valid pursuant to Section 56 (d)
above. As properly observed by the CA:
Par. (d) should be read in conjunction with par. (c), in order to arrive at the meaning of
the disputed word, action. It is clear, based on the foregoing provision, that the action that
must be entered in the minutes of the sangguniang panlalawigan is the declaration of the
sangguniang panlalawigan that the ordinance is invalid in whole or in part. x x x.
This construction would be more in consonance with the rule of statutory construction
that the parts of a statute must be read together in such a manner as to give effect to all of them
and that such parts shall not be construed as contradicting each other. x x x laws are given a
reasonable construction such that apparently conflicting provisions are allowed to stand and
given effect by reconciling them, reference being had to the moving spirit behind the enactment
of the statute.3
Neither can the Court give credence to petitioners contentions that the subject
ordinance was not published nor posted in accordance with the provisions of the LGC.4 It is
noteworthy that petitioners own evidence reveals that a public hearing5 was conducted prior to
the promulgation of the subject ordinance. Moreover, other than their bare allegations,
petitioners failed to present any evidence to show that no publication or posting of the subject
ordinance was made. In contrast, Azcuna had testified that they have complied with the
publication and posting requirements.6 While it is true that he likewise failed to submit any other
evidence thereon, still, in accordance with the presumption of validity in favor of an ordinance,
its constitutionality or legality should be upheld in the absence of any controverting evidence
that the procedure prescribed by law was not observed in its enactment. Likewise, petitioners
had the burden of proving their own allegation, which they, however, failed to do. In the similar
case of Figuerres v. CA,7 citing United States v. Cristobal,8 the Court upheld the presumptive
validity of the ordinance therein despite the lack of controverting evidence on the part of the
local government to show that public hearings were conducted in light of: (a) the oppositors
equal lack of controverting evidence to demonstrate the local governments non-compliance
with the said public hearing; and (b) the fact that the local governments non-compliance was a
negative allegation essential to the oppositors cause of action:
However, it is noteworthy that apart from her bare assertions, petitioner Figuerres has
not presented any evidence to show that no public hearings were conducted prior to the
enactment of the ordinances in question. On the other hand, the Municipality of Mandaluyong
claims that public hearings were indeed conducted before the subject ordinances were adopted,
although it likewise failed to submit any evidence to establish this allegation. However, in
accordance with the presumption of validity in favor of an ordinance, their constitutionality or
legality should be upheld in the absence of evidence showing that the procedure prescribed by
law was not observed in their enactment. In an analogous case, United States v. Cristobal, it
was alleged that the ordinance making it a crime for anyone to obstruct waterways had not been
submitted by the provincial board as required by 2232-2233 of the Administrative Code. In
rejecting this contention, the Court held:
From the judgment of the Court of First Instance the defendant appealed to this court
upon the theory that the ordinance in question was adopted without authority on the part of the
municipality and was therefore unconstitutional. The appellant argues that there was no proof
adduced during the trial of the cause showing that said ordinance had been approved by the
provincial board. Considering the provisions of law that it is the duty of the provincial board to
approve or disapprove ordinances adopted by the municipal councils of the different

DICANG, VAN OLIVER M.

Baguio City

municipalities, we will assume, in the absence of proof to the contrary, that the law has been
complied with. We have a right to assume that officials have done that which the law requires
them to do, in the absence of positive proof to the contrary.
Furthermore, the lack of a public hearing is a negative allegation essential to petitioners
cause of action in the present case. Hence, as petitioner is the party asserting it, she has the
burden of proof. Since petitioner failed to rebut the presumption of validity in favor of the subject
ordinances and to discharge the burden of proving that no public hearings were conducted prior
to the enactment thereof, we are constrained to uphold their constitutionality or legality.9
(Emphases supplied, citation omitted)
All told, the Court finds no reversible error committed by the CA in upholding the validity
of the subject ordinance.
In any event, petitioners have not shown any valid title10 to the property in dispute to be
entitled to its possession. Besides, the RTCs order directing the removal of the structures built
by petitioners on Capayas Island without building permits was not appealed. As such, the same
should now be deemed as final and conclusive upon them.
WHEREFORE, the petition is DENIED. The Decision dated September 30, 2008 and
Resolution dated March 9, 2009 of the Court of Appeals in CA-G.R. CV No. 00284-MIN are
hereby AFFIRMED.

DICANG, VAN OLIVER M.

Baguio City

MICHAEL SEBASTIAN, PETITIONER, VS. ANNABEL LAGMAY NG, REPRESENTED BY

HER ATTORNEY-IN-FACT, ANGELITA LAGMAY, RESPONDENT
GR NO. 164594

April 22, 2015

FACTS OF THE CASE:

When Michael (Sebastian) and Annable (Lagmay) were still sweethearts, Annabel sent
the amount of P350,000.00 as her share in their joint investment for the purchase of a truck.
After their relationship ended, however, Michael refused to return the money, hence Angelita,
Annables mother, filed a complaint belore the Bangay Justice of Siclong, Laur, Nueva Ecija.
The parties entered into an agreement, evidenced by a document identified as kasunduan,
whereby Michael agreed to pay the amount of P250,000.00 on different dates. When the
kasunduan was not honored by Michael, and alleging that the kasunduan was not repudiated
within 10 days, Angelita brought the matter back to the barangay, which failed to enforce the
judgment but issued a Certificate To File Action. One and a half year after the execution of the
Kasunduan, Angelita filed before the MCTC a Motion for Execution of the Kasunduan. Alleging
violation of Sec. 15, Rule 13 of the Rules of Court, Michael moved for dismissal of the action,
but the MCTC decided against him, and rendered a decision in favour of Angelita. Michael
appealed to the Regional Trial Court, but the RTC initially affirmed the MCTC decision. In his
motion for reconsideration, Michael argued that an amicable settlement before the barangay
can be enforced by the Lupon within six months, but after the lapse of six months it should be
thru an ordinary civi action before the MTC or MCTC, not a mere motion for execution; he
assails the lack of jurisdiction of the MCTC over the case as the amount of the claim
(P250,000.00) exceeded the MCTCs jurisdiction (P200,000.00. The RTC granted his motion
for reconsideration and set aside the MCTC decision for lack of jurisdiction. Aggrieved, Angelita
filed a petition for review with the CA, which granted it, holding that the MCTC/MTC is the
appropriate trial court referred to in Section 2, Rule VII of the Implementing Rules of R.A. No.
7160 hence it has jurisdiction to enforce the judgment, regardless of the amount. Michaels
failure to repudiate the kasunduan in accordance with the Implementing Rules of RA 7160
rendered it final. Michael thus elevated the case to the Supreme Court.
ISSUE:
Whether or not the MCTC has the authority and jurisdiction to execute the compromise
agreement, regardless of the amount.
RULING OF THE COURT:

DICANG, VAN OLIVER M.

Baguio City

We deny the petition.

A perusal of the body of the motion for execution shows that it is actually in the nature of
an action for execution; hence, it was a proper remedy;
We note at the outset that Michael raised in his brief before the C A the issue of
wrong remedy. He alleged that Angelitas recourse should have been to file a civil action, not a
mere motion for execution, in a regular court. However, the CA failed to address this issue and
only ruled on the issues of the kasunduans irregularities and the MCTCs jurisdiction.
A simple reading of Section 417 of the Local Government Code readily discloses the
two-tiered mode of enforcement of an amicable settlement. The provision reads:
Section 417. Execution. The amicable settlement or arbitration award may be enforced by
execution by the lupon within six (6) months from the date of the settlement. After the lapse of
such time, the settlement may be enforced by action in the appropriate city or municipal court.
[Emphasis ours.]
Under this provision, an amicable settlement or arbitration award that is not repudiated
within a period often (10) days from the settlement may be enforced by: first, execution by the
Lupon within six (6) months from the date of the settlement; or second, by an action in the
appropriate city or municipal trial court if more than six (6) months from the date of settlement
has already elapsed.
Under the first mode of enforcement, the execution of an amicable settlement could be
done on mere motion of the party entitled thereto before the Punong Barangay.1 The
proceedings in this case are summary in nature and are governed by the Local Government
Code and the Katarungang Pambarangay Implementing Rules and Regulations.
The second mode of enforcement, on the other hand, is judicial in nature and could only
be resorted to through the institution of an action in a regular form before the proper
City/Municipal Trial Court. The proceedings shall be governed by the provisions of the Rules of
Court.
Indisputably, Angelita chose to enforce the kasunduan under the second mode and filed
a motion for execution, which was docketed as Special Proceedings No. 45-99. The question for
our resolution is: Whether the MCTC, through Angelitas motion for execution, is expressly
authorized to enforce the kasunduan under Section 417 of the Local Government Code?
The Court rules in the affirmative.
It is undisputed that what Angelita filed before the MCTC was captioned motion for
execution, rather than a petition/complaint for execution.
A perusal of the motion for execution, however, shows that it contains the material
requirements of an initiatory action.
First, the motion is sufficient in form3 and substance.4 It is complete with allegations of
the ultimate facts constituting the cause of action; the names and residences of the plaintiff and

DICANG, VAN OLIVER M.

Baguio City

the defendant; it contains the prayer for the MCTC to order the execution of the kasunduan; and
there was also a verification and certification against forum shopping.
Furthermore, attached to the motion are: 1) the authenticated special power of attorney
of Annabel, authorizing Angelita to file the present action on her behalf; and 2) the copy of the
kasunduan whose contents were quoted in the body of the motion for execution.
It is well-settled that what are controlling in determining the nature of the pleading are
the allegations in the body and not the caption.
Thus, the motion for execution that Angelita filed was intended to be an initiatory
pleading or an original action that is compliant with the requirement under Section 3, Rule 6 of
the Rules of Court that the complaint should allege the plaintiffs cause of action and the names
and residences of the plaintiff and the defendant.
Angelitas motion could therefore be treated as an original action, and not merely as a
motion/special proceeding. For this reason, Annabel has filed the proper remedy prescribed
under Section 417 of the Local Government Code.
However, Angelita should pay the proper docket fees corresponding to the filing of an
action for execution. The docket fees shall be computed by the Clerk of Court of the MCTC, with
due consideration, of course, of what Angelita had already paid when her motion for execution
was docketed as a special proceeding.
The kasunduan has the force and effect of a final judgment.
Under Section 416 of the Local Government Code, the amicable settlement and
arbitration award shall have the force and effect of a final judgment of a court upon the
expiration often (10) days from the date of its execution, unless the settlement or award has
been repudiated or a petition to nullify the award has been filed before the proper city or
municipal court.
Moreover, Section 14, Rule VI of the Katarungang Pambarangay Implementing Rules
states that the partys failure to repudiate the settlement within the period often (10) days shall
be deemed a waiver of the right to challenge the settlement on the ground that his/her consent
was vitiated by fraud, violence or intimidation.
In the present case, the records reveal that Michael never repudiated the kasunduan
within the period prescribed by the law. Hence, the CA correctly ruled that the kasunduan has
the force and effect of a final judgment that is ripe for execution.
Furthermore, the irregularities in the kasunduans execution, and the claim of forgery are
deemed waived since Michael never raised these defenses in accordance with the procedure
prescribed under the Local Government Code. Thus, we see no reason to discuss these issues
in the present case.
The MCTC has the authority and jurisdiction to enforce the kasunduan regardless of the
amount involved.
The Court also finds that the CA correctly upheld the MCTCs jurisdiction to enforce any
settlement or arbitration award issued by the Lupon.

DICANG, VAN OLIVER M.

Baguio City

We again draw attention to the provision of Section 417 of the Local Government Code
that after the lapse of the six (6) month period from the date of the settlement, the agreement
may be enforced by action in the appropriate city or municipal court.
The law, as written, unequivocally speaks of the appropriate city or municipal court as
the forum for the execution of the settlement or arbitration award issued by the Lupon. Notably,
in expressly conferring authority over these courts, Section 417 made no distinction with respect
to the amount involved or the nature of the issue involved. Thus, there can be no question that
the laws intendment was to grant jurisdiction over the enforcement of settlement/arbitration
awards to the city or municipal courts regardless of the amount. A basic principle of
interpretation is that words must be given their literal meaning and applied without attempted
interpretation where the words of a statute are clear, plain and free from ambiguity.6
WHEREFORE, premises considered, we hereby DENY the petitioners petition for
review on certiorari, and AFFIRM the March 31, 2004 Decision of the Court of Appeals in CAG.R. SP No. 65450.
Angelita Lagmay is ORDERED to pay the proper docket fees to be computed by the
Clerk of Court of the Municipal Circuit Trial Court of Laur and Gabaldon, Nueva Ecija, with due
consideration of what she had paid when her motion for execution was docketed as a special
proceeding.