Republic of the Philippines

Court of Appeals
Cagayan de Oro City

X-----------------------------------------X
Motion For
Reconsideration
[OF THE DECISION DATED 09 JANUARY 2009]
OMES NOW respondent-appellee City of Davao, by the undersigned
counsel, and to this Honorable Court, most respectfully avers that:

,
On 16 January 2009, respondent-appellee City of Davao, through the
undersigned counsel received by registered mail a copy of this honorable Courts
Decision dated 09 January 2009 (Decision), the dispositive portion of which
reads:
C
1
PILIPINO BANANA GROWERS AND
EXPORTERS ASSOCIATION, INC., DAVAO
FRUITS CORPORATION AND LAPANDAY
AGRICULTURAL AND DEVELOPMENT
CORPORATION,
Petitioners-Appellants,

- Versus -
CITY OF DAVAO, ET AL,
Respondents-
Appellees.
CA G.R. CV No. 01389-MIN

WHEREFORE, premises considered, the appeal is
GRANTED. The assailed September 22, 2007 Decision of the
Regional Trial Court (RTC), 11
th
Judicial Region, Branch 17, Davao
City, upholding the validity and constitutionality of Davao City
Ordinance No. 0309-07, Series of 2007, is hereby REVERSED
and SET ASIDE.
FURTHER, the Writ of Preliminary Injunction dated 28
January 2008 enjoining the City Government of Davao, and any
other person or entity acting in its behalf, from enforcing and
implementing City Ordinance No. 0309-07, is hereby made
permanent.
The foregoing verdict, which strikes down Ordinance No, 0309-07, Series
of 2007, better known as the ordinance banning aerial spraying as an agricultural
practice in all agricultural entities in Davao City as unconstitutional in its entirety
is purportedly based on the following grounds, to wit:
1. That Ordinance No. 0309-07 is an unreasonable exercise by the City
of Davao of its delegated police power for the reason that the three (3)
month transition period provided under Section 5 thereof is
unreasonable for being impossible to comply with;
2. That the total ban on aerial spraying runs afoul with the equal
protection clause because it does not classify which substances are
prohibited from being applied aerially even as reasonable distinctions
should be made in terms of the hazards, safety or beneficial effects of
liquid substances to the public health, livelihood and the environment;
and
3. That the buffer zone requirement in the ordinance violates the due
process clause of the constitution because it unreasonably deprives
plantation owners of the lawful and beneficial use of such areas to be
ceded, without just compensation;
With all due respect, respondent-appellee City of Davao is of the view that
the said decision is erroneous in that it utterly disregards prevailing constitutional
norms and statutory provisions, and in patent direct collision with the evidences
at hand and the attendant circumstances surrounding the case.
Hence, this motion for reconsideration.
2
Arguments/Discussion
WITH ALL DUE RESPECT, THE
HONORABLE COURT OF APPEALS
ERRED IN HOLDING THAT SECTION
5 OF ORDINANCE NO. 0309-07,
SERIES OF 2007 IS
UNREASONABLE, MAKING DAVAO
CITY ORDINANCE BANNING AERIAL
SPRAYING AN UNREASONABLE
EXERCISE OF DELEGATED POLICE
POWER
In nullifying Ordinance No. 0309-07, Series of 2007, this Honorable Court
stresses that its enactment is an unreasonable exercise by the City of Davao of
its delegated police power; hence, void and unconstitutional (page 12, Decision).
In particular, this Honorable Appellate Court reasoned that the means employed
by the said ordinance to accomplish its lawful purpose is oppressive.
To be more specific, respondent-appellee recounts that first, this
Honorable Court leaned to petitioner-appellants cry that it would not be
physically possible for them to be able to configure their banana
plantations for ground spraying within such an insufficient period of three
(3) months (at page 14, Decision), per Section 5 of the subject ordinance. In so
holding, this honorable Appellate Court took the side of petitioner-appellants by
giving more credence to, among others, the testimony of their witnesses, Dr.
Maria Emilia Rita C. Fabregar, Ph. D. and Engr. Magno. P. Porticos. Apparently,
this Honorable Court is convinced that it would really take three (3) years for
petitioner-appellants to completely reconfigure their banana plantations to
accommodate ground spraying vehicles and other equipment. With all due
respect, respondent-appellee City of Davao submits that the honorable Court of
Appeals erred in this regard.
Foremost, the ordinance banning aerial spraying in Davao City does not
mandatorily require or impose upon petitioners-appellants the obligation to the
shift to truck-mounted boom spraying method only. As a matter of fact, this
honorable Court even noted that there are at least three (3) modes of ground
spraying available for petitioners-appellants, namely: (1) truck-mounted boom
spraying; (2) manual or backpack spraying; and (3) sprinkler spraying. Yet,
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for reasons known only to them, petitioners-appellants insist on shifting to the
truck-mounted boom spraying system.
What is patent is that such a choice is only a ploy resorted to by
petitioners-appellants in order to have a reason for not complying with the three
(3) month transition period mandated by the ordinance. Their insistence to shift
to truck-mounted boom spraying alone is capricious, whimsical and wayward
because a couple of other methods are available to them in the meantime that
they are reconfiguring their banana plantations to accommodate truck-mounted
boom sprayer as their prime choice.
In the testimony of petitioners-appellants witness cited by the honorable
Court of Appeals in its Decision (at page 15), the former maintained that they
need at least three (3) years to shift to truck-mounted boom spraying. Breaking
the shift into stages, they claim that six (6) months is needed for the planning
stage alone; two (2) months to secure the necessary government permits;
eighteen (18) months for the clearing of banana plants and dismantling or
reconstructing fixed infrastructures, such as roads, drains, cable ways, and
irrigation facilities; six (6) months for the importation and purchase of trucks
mounted with spray booms, nurse trucks and protective gears, including the
training of the personnel who shall man the same; and six (6) months to one (1)
year is needed to secure the needed capitalization to finance the said
undertaking.
Petitioners-appellants arrive at the three-year period requirement simply
because they added the months allegedly needed for each of the stages
mentioned in the immediately preceding paragraph. Such a claim deserves
outright rejection considering that by the use of simple common sense and plain
logic, most of the said predetermined stages can be undertaken simultaneously.
For instance, after a year of planning and securing the needed capitalization,
petitioner-appellants can actually commence SIMULTANEOUSLY in securing
the needed government permits, clearing the banana plants, etc, and in the
importation of trucks to be used for spraying. Hence, in this instance, the
three (3) year period is an exaggeration clearly calculated to draw the sympathy
of this Honorable Tribunal.
Thus, their highly exaggerated claim of three (3)-year shift time
requirement, and the alleged impossibility of complying with the herein subject
ordinance deserve outright rejection.
4
What is more, no evidence was offered by petitioners-appellants to prove
the truthfulness of each of the supposed needed period for each of the
undertakings as identified above. At the very least, petitioners-appellants
interposition of the same, aside from being self-serving, generates nothing but
disbelief. The records of the instant case is bereft of any showing that
petitioners-appellants included in their voluminous bundles of documentary
evidence the supposed studies or reports made on each of the proposed
undertaking for them to correctly arrive at each of the periods. In short, such a
claim is self-serving and purely speculative, and thus, not worthy of even scant
consideration.
The honorable Court of Appeals cites the testimony of petitioners-
appellants witness Dr. Anacleto M. Pedrosa, in upholding petitioners-appellants
stand that manual or backpack spraying would imperil not only the banana
production but also the health of the workers because the same are the least
safe and least efficient among the methods of spraying (at page 16, Decision).
This Honorable Court took notice of Pedrosas declaration that More water and
more fungicides, vitamins and mineral and fertilizers will have to be used in
manual spraying to compensate for the weaker pressure generated by the
backpack pumps to project the water solution to the top of the banana canopies.
Also, since the water solutions will have to be manually ferried by the workers,
multiple handling of the water solution results in spillage and waste (italics and
underscoring supplied) (at page 17, Decision).
In fine, petitioners-appellants are saying that in manual or backpack
spraying, the solution must be more concentrated as there will be more
fungicide, vitamins, minerals and fertilizers that will have to be used. Yet, it is a
simple natural phenomenon that the more concentrated the solution is, the more
sticky it becomes. And the stickier the solution, the harder it would be to pump
the same manually. And of course, that becomes more expensive for petitioners.
Again, we go back to the same issue: economics vs. health and environmental
preservation.
There is likewise no logic in petitioners-appellants contention that the
application of fungicide is uneven when manual or backpack spraying is used.
They maintain that the long booms in manual spraying are unwieldy (as cited by
the honorable Court of Appeals at page 17, Decision). Yet, they forgot to
consider that spray planes and manual or backpack sprayers alike are controlled
5
by only one person: by a pilot in case of the former, and the manual sprayer
applicator in the case of the latter. Here, it need not be stressed that a spray
plane is bulkier and heavy compared to a manual sprayer boom. Hence, it
necessarily follows that the former is harder to control by a single person than
the latter. Such being the case, there would essentially be more accuracy in the
application of fungicide in manual spraying and ostensibly less in the aerial
method of application. Therefore, rationally, drift can be more controlled and
non-wastage of chemicals is also assured if fungicide is sprayed manually. Thus,
Dr. Pedrosas statement that manual or backpack spraying results in uneven
application of fungicides is totally misplaced.
Also, the last sentence of the above-quoted portion of Dr. Perdrosas
testimony is, by far, preposterous. Respondent-appellee can not just see the
logic why petitioners-appellants insist that to ferry the fungicide solutions
manually can result to spillage and waste. Neither can it be correctly said that
multiple handling (if petitioners-appellants are trying to impress that aside from
the manual sprayer applicator, another person has to aid him in carrying filler
solutions) of these solutions can result in the same too. Perhaps the same could
be possible if petitioners-appellants does not or will not exercise due diligence by
training and monitoring the workers on the safe and proper handling of the same,
or when they require the workers to carry fungicide solutions in volume far
beyond their physical capacity.
For sure, aerial spraying, too, involves multiple handling of fungicide
solutions. Respondent-appellee City of Davao needs not stress this particular
concern, as it is too obvious that several persons are needed in the preparation
of fungicide solution and the delivery of the same from the place or preparation
to the spray planes themselves.
What is more, the honorable Court of Appeals also considered Dr.
Perdrosas claim that petitioners-appellants find the sprinkler system to be
unfeasibile. In his judicial affidavit, Dr. Pedrosa mentioned (as reproduced by the
honorable ponente in page 17 of the Decision) alleged studies and experiments
upon which such finding (that sprinkler system is not feasible) is based. Yet, it is
worth stressing too that the alleged hard copies of the supposed studies or
experiment were not offered by petitioners-appellants in evidence to prove the
existence of the same. At the very least, Dr. Pedrosas declaration is mere
hearsay which precludes proper judicial consideration.
6
Moreover, as aptly observed by the Honorable Justice Romulo V. Borja in
his 34-page Dissenting Opinion (at page 7, Dissenting Opinion) as regards the
rest of his testimony, Dr. Pedrosas and appellants solicitousness for the
workers of the banana plantation is commendable x x x, yet, the erudite Justice
did not x x x find it matched by an equal concern for those who, not being
connected in any manner to the business of the plantations, are nonetheless
subject to spray drift. While there may be such drift even in manual spraying ,
in the case of aerial spraying, this drift is most pronounced (emphasis and
underscoring ours).
Mr. Justice Borja went further by saying that:
A further scrutiny of Dr. Pedrosas testimony discloses that
he did not dwell on whether there are available sufficient protective
gears or devices or clothing that can insulate the manual sprayer
from the toxic chemicals he is spraying or on the cost thereof. This
is a serious gap in his testimony and in the evidence of
appellants. It was incumbent upon them to establish by at least
clear and convincing evidence that all forms of ground spraying
was unreasonable, oppressive and impossible to comply with. By
their relative reticence on the feasibility of manual or backpack
spraying, appellants have failed to establish their claim of the
unreasonableness of the transition period. There is no reason to
conclude that the manual sprayer cannot be protected from the
toxic spray. It is possible that appellants merely do not want to
expend the amounts necessary to protect their workers (emphasis
and underscoring ours) (at page 7, Dissenting Opinion).
It would not, therefore, be surprising that on the foregoing note, the
Honorable Justice differed from his colleagues that appellants have established
the unreasonableness of the transition period (Dissenting Opinion, supra).
Neither can the testimony of CPA Maria Victoria E. Cembrano be given
merit for this honorable Court to find the instant case squarely for the herein
petitioners-appellants. It must be noted that at the court below, and as
recognized by this Honorable Appellate Court, she already admitted that manual
spraying can be done any time (at page 19, Decision). Nonetheless, respondent-
appellee City of Davao humbly differs with this honorable Courts pronouncement
that Ms. Sembranos testimony was limited only to the financial impact of the
conversion, thus, her admission, as this honorable Court puts it, cannot
overthrow justified objections for adopting such a method of application because
she lacked the competence to discuss the technical or engineering aspect of the
conversion.
7
With all due respect, this esteemed Courts consideration of Ms.
Sembranos admission to be non-fatal to their case is plainly incongruous to the
established rules of procedure. When the said admission was made by Ms.
Sembrano at the lower court, appellants were too quick to say that the same is
beyond her competence to testify on, thus, does not operate against them.
Unfortunately, the same stand is apparently taken by this honorable Appellate
Court.
Respondent-appellee City of Davao reiterates that such finding is
offensive to the existing procedural behests considering that Ms. Sembranos
admission stands tall in the records of the instant case and which has not been
satisfactorily caused to be stricken off therefrom by the petitioners-appellants
when she took the witness stand.
As decreed by the Rules of Court, it is elementary that a party cannot
impeach his own witness.
X x x. Section 12, Rule 132 of the Rules on Evidence,
provides as follows: "SEC. 12. Party may not impeach his own
witness. Except with respect to witnesses referred to in
paragraphs (d) and (e) of Section 10, the party producing a
witness is not allowed to impeach his credibility. A witness
may be considered as unwilling or hostile only if so declared by the
court upon adequate showing of his adverse interest, unjustified
reluctance to testify, or his having misled the party into calling him
to the witness stand. The unwilling or hostile witness so declared,
or, the witness who is an adverse party, may be impeached by the
party presenting him in all respects as if he had been called by the
adverse party, except by evidence of his bad character. He may
also be impeached and cross-examined by the adverse party, but
such cross-examination must only be on the subject matter of his
examination-in-chief. X x x (People vs. Teresita D. Aranda, GR.
No. 100985, September 17, 1993).
In this particular instance, Ms. Sembrano is not a witness hostile to
petitioners-appellants. She was not likewise declared by the court a quo as such.
She was neither shown to be an unwilling witness. Thus, her testimony cannot
be impeached by petitioners-appellants, much less, by this honorable Appellate
Court.

Thus, Ms. Sembranos declaration that they can shift to manual spraying
at any time, even today, is binding upon them. And, for this court to strip off the
binding effect of Miss Sembranos judicial admission would be wholly erroneous.
As a matter of fact, the Rules of Court ordains that matters of such nature need
8
not be proved. By itself, Ms. Sembranos declaration to that effect made in open
court is already a declaration that they can shift to manual spraying at any time.
For this Honorable Court to rule otherwise, instead of taking judicial notice of the
same, would be to go far beyond what is allowed by the rules.
Once and for all, respondent-appellee City of Davao deems it proper to
reproduce here once more the pertinent portion of Ms. Sembranos testimony,
for this honorable Court to take a second look:
x x x
ATTY. QUITAIN:
May I proceed your, your Honor.
COURT:
Proceed.
ATTY. QUITAIN:
Q - You caused to be prepared this Exh. H-3, cost
of ground truck-mounted spraying?
A - That is right, sir.
Q - Am I correct in saying, that there are other
modes of ground spraying, other than truck
mounted spraying?
A - That is right.
Q - You have this manual spraying to be done by
a person?
A - That is right, sir.
Q - And the manual spray to be done by a
person can be done anytime?
A - That is right.
Q - It can even be done tomorrow?
A - Yes, sir.
Q - It can be done today?
A - Yes, sir.
Q - And you can avail of this if you want to?
A - That is right.
x x x
(emphasis supplied)
(Please see pages 16 17, TSN, dated May 29, 2007)
9

In confirmation and affirmation of the afore-quoted testimony of Miss
Sembrano, the unrebutted attestations of respondents witness Rebecca Royo
Mercado is instructive and enlightening:
x x x
2. Q: You said you are a farmer, do you own any farm?
A: Yes, I own a six (6) hectare parcel of land fully planted to
Cavendish bananas located at Abiod, Pag-asa,
Kapalong, Davao.
3. Q: Are you familiar with Sigatoka disease?
A: Yes, it is a disease which, if not controlled, can devastate
or destroy a banana plantation;
4. Q: Do you know how it is controlled?
A: By the use of spray containing, among others, fungicide.
5. Q: How is the spray done in so far as your banana
plantation is concerned?
A: It is done manually by laborers wearing protective
gear and using a back-packed Mist Blower.
6. Q: How long has this manual spraying with the use of back-
packed Mist Blower, been used in this plantation?
A: I have been using this manual method of spraying since
2003.
7. Q: Will it take long to make use of this method?
A: No. As a matter of fact, you can do it even today if
you want to.
8. Q: Is this an effective way of controlling Sigatoka?
A: Yes, it is otherwise I would have shifted to another
method a long time ago. If it was not effective, my
banana plantation, including those owned by my
brothers and sisters which are contiguous to my
property, which also use the manual spraying would
have been destroyed or devastated a long time ago.
9. Q: Including those owned by your brothers and sisters and
your own, how big is the area?
A: 30 hectares, more or less, fully planted to bananas.
10. Q: Is it profitable to avail of this method of spraying?
A: Yes, our operation of the 30-hectare banana
plantation is profitable.
10
x x x
(emphasis supplied)
(Pls. see 2
nd
page, Exh. 19 for Respondents)
Between the opinion of Dr. Pedrosa that back-pack or manual spraying is
the least safe and least efficient among the methods of spraying which are
based on speculations and theories, and the testimonies of their very own
employee and witness, Maria Victoria E. Sembrano, and Rebecca Royo
Mercado who testified in a straightforward manner, that her EXPERIENCE with
the use of back-pack manual spraying since 2003 have proven the said method
to be safe and efficient thus contributing to the profitability of her banana
business, it is not difficult to choose the more credible and acceptable testimony.
Between opinions and speculations on one hand, and experience on the
other, it is the latter that prevails over the former.
In addition to that, Mr. Justice Borjas words in his observation of the
testimony of Ms. Sembrano is more than explicatory. In his Dissenting Opinion
(at page 5) he correctly discerned that:
If Cembrano, a mere CPA, was incompetent to testify on
the technical feasibility of an immediate shift to manual spraying, a
matter for engineers, neither was she competent to testify on the
efficiency and safety of truck-mounted spraying relative manual
spraying, likewise am engineering matter. Appellants cherry-picked
their evidence.
Cembranos expertise lies in the field of finance. And she
clearly invoked a fundamental truth in any economic undertaking:
that the bottom line is money. Temporal and logistical constraints
are overcome if sufficient resources are committed to the
undertaking. He ultimate constraint, therefore, is finances.
In other words, the shift to manual spraying within the
three-month period transition id feasible.
(italics and emphasis supplied)
By no stretch of the imagination can it be said or regarded that the aerial
spraying ban is a manifestation of the Citys indifference to the corporeal rights of
petitioner-appellants. It is simply that the appellee as a local government unit
which is obligated to protect the rights of its constituents, in enacting the herein
assailed ordinance, merely gives truth to the principle that property rights must
at all times bow to general welfare. To stress, respondent-appellee City of
Davao cannot just countenance the use of aerial spraying especially of
11
pesticides which though good for companies in terms of profitability, wreck havoc
on the health and general welfare of its constituents, and damage the
environment.
Respondent-appellee City of Davao begs to disagree with the honorable
Courts conclusion that to compel petitioners-appellants to abandon aerial
spraying in favor of manual or back-pack spraying or sprinkler spraying within 3
months puts petitioners-appellants in a vicious dilemma between protecting its
investments and the health of its workers on one hand, and the threat of
prosecution if they refuse comply with the imposition, on the other. What is clear
in this case is that petitioners-appellants merely do not want and are
unreasonably resisting the ban. Of course, petitioners-appellants cannot deny
that they charge their growers more when they use aerial spraying than when
they use ground spraying in controlling Sigatoka.
In like manner, the Honorable Court of Appeals erred in finding the
applicability of the Laguio doctrine in this case. To reiterate, Ordinance No.
0309-07, Series of 2007 does not operate to close petitioners-appellants lawful
enterprise. The inference it has arrived at that the limitation imposed by the
herein questioned ordinance upon petitioners-appellants prejudice the operation
of the plantations, and the economic repercussions thereof would just be akin to
shutting down the venture is highly speculative and baseless.
Respondent-appellee City of Davao stresses and re-stresses that the
business of the petitioners-appellants is not dependent on aerial spraying. This is
so because not all their plantations use aerial spraying. It is a fact admitted by
the petitioners-appellants that of the entire 5,200 hectare banana plantation
they are operating in Davao City, aerial spraying is used in only about
1,800 hectares (LESS THAN FORTY PERCENT (40%)). Clearly therefore, to
say that the existence and survival of the appellants banana industry is wholly or
largely dependent upon the continued use of the usage of aerial application of
fungicides is far from truth. Thus, for the honorable Court of Appeals to equate
the banning of aerial spraying to the closure of petitioners-appellants business
would not be in keeping with the existing facts and truth.
In fact, some banana plantation areas owned by petitioners-appellants
themselves, particularly Highland Banana Corporation in Sirib, Calinan District,
Davao City, has stopped using aerial spraying of fungicides since the later part of
the year 2006. Furthermore, since the instant case was disposed of by the lower
12
court in September 22, 2007 until the present, petitioners-appellants have not
been conducting aerial spraying in their banana plantations in Brgy. Dacudao,
Calinan District, Davao City. Yet, in both cases, petitioners-appellants banana
business venture continues to operate at a profit. To say that the banning of
aerial spraying would mean the closure of petitioners-appellants lawful
enterprise is to totally ignore the evidence and facts extant in the records.

One compelling reason for the enactment of the ordinance banning
aerial spraying is the INHERENT TOXICITY of fungicides used by petitioners-
appellants. All fungicides being toxic, can cause the deterioration not only of
ones physical health but also the environment. Worse, it kills. Petitioner-
appellants cannot successfully deny such reality. They have, in fact, admitted
that fungicides being toxic are dangerous to human health. Such an admission
was duly noted by this honorable Appellate Court when it declared that:
We are skeptical of the foregoing claims on the seemingly
fool-proof safety of pesticides or fungicides, both as chemical
substances and in terms of human exposure to the same, since
petitioners-appellants already admitted that the pesticides they
use would prejudice the health of their workers if manually
sprayed. The admission would sensibly mean that exposure to
such substances, even in its diluted form, poses danger to the
human health (Decision, at pages 26-27).
This finding by the Honorable Tribunal is confirmation of the fact that
fungicides can harm human health and environmental stability.
As correctly pointed out by Honorable Justice Borja, X x x the inherent
toxicity of pesticides is recognized by statute (Dissenting Opinion, at page 9). He
precisely and squarely cited a pertinent provision of P.D. 1144 by virtue of which
the Fertilizer and Pesticides Authority (FPA) was created, and which law has
been repeatedly leaned upon by no less than the petitioner-appellants in arguing
their case. The said legal provision reads:
WHEREAS, improper pesticide usage presents serious
risks to users, handlers, and the public in general because of the
inherent toxicity of these compounds which are, moreover,
potential environmental contaminants x x x (italics and
emphasis supplied).
Thus, petitioners-appellants claim that the fungicide they are using,
inasmuch as it belongs to Category IV, is of the mildest toxicity and therefore
safe for human beings and the environment, is totally offensive not only to the
13
principles of logic and medicine, but also to the teachings of the law as well.
They can neither logically nor legally claim that the fungicides they use in aerial
spraying cannot harm humans and the environment because that is a fact
confirmed by this tribunal and recognized by law.
Another important point raised by Honorable Justice Borja in his
Dissenting Opinion (at page 12) which all the more warrants the reversal of the
decision sought to be reconsidered herein is the fact that the herein subject
ordinance is not actually a measure on the application of pesticides but a
measure against air pollution. He perfectly pointed out that When these
chemicals are sprayed aerially, they become a form of air or atmospheric
pollution.
Justice Borjas view as cited in the immediately preceding paragraph
clearly deserves recognition. The fungicide used by petitioners-appellants, as
soon as they are released in the air by the nozzles of the spray planes, become
air pollutants as defined by Section 5 of Republic Act 8749 otherwise known as
the Philippine Clean Air Act. Exactly as quoted by Mr. Justice Borja, it says:
a) Air pollutant means any matter found in the atmosphere
other than oxygen, nitrogen, water vapor, carbon dioxide and the
inert gases in their natural or normal concentrations, that is
detrimental to health or the environment, which includes but not
limited to smoke, dust, soot, cinders, fly ash, solid particles of any
kind, gases, fumes, chemical mists, steam and radio-active
substances.
(italics and emphasis supplied)
Necessarily, when air pollutants such as sprayed fungicide, a chemical
mist by itself, mixes with the air, then the result is air pollution.
The Philippine Clean Air act further proclaims that:
b) Air Pollution means any alteration of the physical, chemical
and biological properties of the atmospheric air, or any discharge
thereto of any liquid, gaseous or solid substances that will or is
likely to create or to render the air resources of the country harmful,
detrimental, or injurious to public health, safety or welfare or which
will adversely affect their utilization for domestic, commercial,
industrial, agricultural, recreational, or other legitimate purposes x x
x.
(italics and emphasis supplied)
14
(Section 5, R.A. 8749)
Aerial spraying of fungicides essentially alters the physical and natural
form of the atmospheric air as the chemical mists entirely foreign to it, mix with it,
thus, results to air pollution.
In line with this honorable Courts pronouncement, Honorable Justice
Borja made it clear once and for all that the banning of aerial spraying is within
the authority of local government units to ban pursuant to Section 2 of the
Philippine Clean Air Act (Dissenting Opinion, at page 13). In view of the same,
Justice Borja correctly held that Davao City Ordinance No. 0309-07 is valid in
that contrary to appellants claims, it has reasonable relation to the purpose
sought to be achieved as the same is not an absolute ban on the use of
pesticides but a ban on aerial spraying which is a form of air pollution. He further
perfectly articulated that X x x under the Clean Air Act, the City of Davao has
every right and authority to regulate, and even to ban, the use of these
chemicals in its atmospheric air,
In striking down Davao City ordinance banning aerial spraying as invalid,
this honorable Appellate Court discredited the testimony of Dagohoy P.
Magaway, Cecilia O. Moran, Virginia Cataag, Rosita T. Bacalso and Elisa de
Jesus Amba. This honorable Court held that the testimony of the said persons
did not prove that aerial spraying of substances is the proximate cause of the
various ailments such as itchiness and irritation of skin, contraction and
tightening of the chest, minimal tuberculosis, recurring stomach aches, nausea
and lost of appetite they suffer (Decision, at page 27). Yet, no reason was
given and no explanation was offered by this honorable Court in so holding
the same.
The common denominator for the herein subject aerial spray ban
ordinances three (3) month transition period is the URGENCY of the matter.
Aside from the fact that it is within its power to regulate and that to shift to other
modes of spraying is feasible within the said period, respondent-appellee City of
Davao cannot and will not ignore and play deaf to the cry of the lowly people
severely and adversely affected by the aerial spraying of fungicides.
Granting ex gratia argumenti that the alleged illnesses (in its strict medical
sense) cannot as yet be fully attributed to aerial spraying, the ordeal they suffer
every time they are exposed to the fungicide mists, such as skin itchiness,
15
contraction and/or tightening in the chest, nausea, lost in appetite, and
difficulty in breathing sufficiently justifies the outlawing of the said mode of
applying fungicide. In short, the declarations of these living witness in
accordance with their personal experience and suffering is more than enough to
prove that aerial spraying brings uncomfortable and tormenting experiences to
human beings.

To emphasize, no amount of medical evidence is needed or required by
the rules to prove that ordinary witnesses for the respondent-appellees have
experienced unbearable severe contraction of or tightening in the chest,
difficulty in breathing, skin itchiness, nausea and loss of appetite. The said
personal experiences, which were all based on personal knowledge of Magaway,
Moran, Cataag, Bacalso and de Jesus Amba, do not partake of a testimony
requiring medical expertise as they are mere feelings and/or experiences, and
are more than enough to establish that aerial spraying brings hell to them.
Those unpleasant and offensive experiences were told by no less than
the witnesses for the respondent-appellee, by their own respective direct
personal knowledge and experiences for a considerable length of time. Thus, no
other degree of proof is needed to conclude that aerial spraying had been a
menace for the said lowly members of the community.
For sure, petitioners-appellants as well as the majority of the membership
of this Courts division who voted for the scrapping of Ordinance No. 0309-07,
Series of 2007, would not allow the same to happen to themselves, and would
surely cry violation of their rights when the air they are breathing is no longer the
usual odorless, soothing and body-nourishing oxygen containing other beneficial
natural elements, but one which is exceedingly purulent and putrid because it is
blended with toxic particles.
It is everyones right not be breathe air with impurities and not to be
drenched by any substance or even water when the same is wholly unsolicited
and when the people is constrained to be exposed to it at the wrong place and
time.
With all due respect, respondent-appellee City of Davao disagrees with
this Honorable Tribunals pronouncement that the testimony of respondent-
appellee City of Davaos expert witness, Dr. Lynn Crisanta R. Panganiban, failed
to establish that aerial application of fungicides or pesticides poses greater risk
16
to the health of the people and the ecology (Decision, at page 29). A closer on
the judicial affidavit of Dr. Panganiban, an expert in pharmacology and
toxicology, reveals that her testimony merely covers the inherent toxicity of all
kinds of fungicides. To be sure, respondent-appellees purpose of using her
testimony in the instant case is only to stress that fungicides, once inhaled or
ingested, can cause debilitating effects on human body; that no matter how
classified these fungicides are, still, it is injurious to human health.
However, it is worthy to note that respondent-appellee City of Davao did
not solely rely on her expert testimony. Her expertise was sought solely for
purposes of proving that fungicides are inherently toxic no matter what its
classification may be. Thus, in corroboration with her erudite medical
pronouncements that fungicides pose great danger to human health when
sniffed or orally taken, the averments of the residents who stand seriously
affected by the aerial method of spraying agricultural chemicals concretizes the
undisputable reality that aerial spraying should be banned.
Why aerial spraying? It is simply because the said method produces more
spray drift than the ground methods of spraying. That is why it is not surprising
that the complaining residents only abhor the aerial method of spraying in their
respective community. They have nothing to say against the other modes, such
as the manual or backpack spraying method, or even the truck mounted boom
spray method. Though both methods emit nothing but fungicide, yet they can still
endure it as the drift produced thereby is not that much compared to that which
is produced by the aerial method. In the ground methods of spraying, the drift is
tolerable and CONTROLLABLE. However, the City of Davao shall await the day
when other modes of controlling or eradicating Sigatoka without the use of
chemicals, inorganic fungicides and pesticides, comes and it shall act
accordingly and appropriately.
Ergo, contrary to the claims of petitioners-appellants and as opposed to
the current ruling of this honorable Court, Davao City ordinance banning aerial
spraying is NOT UNREASONABLE.
For the same reasons stated above, respondent-appellee City of Davao
humbly disagrees with this honorable Courts declaration that the practice of
aerial spraying per se and the fungicides or pesticides aerially applied to banana
plantations are inimical to the public health. The City of Davao has
overwhelmingly established that aerial spraying produces more drift which goes
17
far beyond the plantation area exposing the people thereto by way of the
testimony of the affected residents, and that fungicides are inherently toxic and
are harmful to human health as testified by the Citys expert witness, Dr. Lynn
Crisanta R. Panganiban.
Incidentally, even the very witness of petitioners-appellants, Richard
Billington, an alleged expert and employee of the company which manufactures
the fungicide used by the appellants in their aerial spraying, himself testified that
these fungicides are toxic and are harmful to human beings.
WITH ALL DUE RESPECT, THE
HONORABLE COURT OF APPEALS
ERRED IN HOLDING THAT
ORDINANCE NO. 0309-07 IS
VIOLATIVE OF THE EQUAL
PROTECTION CLAUSE OF THE
CONSTITUTION ON GROUNDS OF
IMPROPER DISTINCTION.
The all-sweeping nature of the proscription decreed by the ordinance in
question does not justify its nullification. Petitioners-appellants worry about non-
allowance of aerial spraying of fertilizers, vitamins or even water does not even
buttress their case. As stated above, it is everyones right not to breathe air
contaminated with impurities and not to be drenched by any substance or even
water when the same is wholly unsolicited and when the people is constrained to
be exposed to it at the wrong place and time. Not even when the sprayed
substance consists of pure water. This is to give due high regard to the rights of
the unwilling public.
The ratiocination of the honorable Justice Borja in this regard is educating,
thus:
X x x. Nonetheless, the outright ban against aerial spraying
vitamins, minerals and organic fertilizers is still justifiable. These
materials, while not generally toxic, may prove to be threatening to
the health of certain individuals because of wind drift from aerial
spraying. Vitamins and minerals are generally non-toxic; it is less
clear if organic fertilizer is not hazardous when ingested or inhaled
by humans. But who is to say that they may not prove hazardous to
the health of some persons? The adage that one mans medicine
may be another mans poison applies here. Besides, there is no
technical reason why such vitamins, minerals and organic
fertilizers cannot be sprayed manually or by sprinklers. If they are
18
as harmless as appellants would make Us believe, then they are
entirely safe for manual spraying (Dissenting Opinion, at pages 16-
17).
X x x
X x x. It is true that water is natural, non-toxic compound.
When sprayed aerially, however, the mist drifts to the neighboring
areas and their population. The act of spraying aerially therefore
necessarily impinges upon the rights of others. Who is to say that
such spray would be welcomed by a neighbor who may have a
perfectly good reason to oppose it and the heightened
moisture it engenders. The situation is akin to that of a man
watering his own garden. His right to do so is unquestioned.
But if he employs hosing equipment so powerful that is sprays
water into the air and drenches his neighbors premises, he
impinges upon another persons rights. It is immaterial, as far
as this argument goes, whether the water is toxic or not. I take
notice that some asthmatics prefer arid climates which allow
them to breathe easier and which minimizes asthma attacks.
Aerial spraying, by generating drift beyond the confines of the
sprayers property, violates the right of his neighbor who has
a constitutional right to a clean and healthy environment, not
according to the will of another person, but in accordance with
the rhythm and harmony of nature (emphasis and italics
supplied) (Dissenting Opinion, at page 18-19).
Thus, it cannot be correctly held that Ordinance No. 0309-07, Series of
2007 is violative of the equal protection clause of the Constitution.
WITH ALL DUE RESPECT, THE
HONORABLE COURT OF APPEALS
ERRED IN HOLDING THAT DAVAO
CITY ORDINANCE NO. 0309-07
CONFISCATES PROPERTY WITHOUT
DUE PROCESS OF LAW
Again, respondent-appellant City of Davao disagrees with this honorable
Appellate Court when it found Davao City Ordinance banning aerial spraying to
be confiscatory. It held that the buffer zone requirement under Section 6 of the
herein subject ordinance makes no fair distinction as to the area or size of the
plantation over which it shall be established. According to this honorable Court, it
imposes a fixed-30 meter Buffer Zone without regard to the size of the
landholdings or plantations. Ultimately, this Honorable Court concludes that the
30-meter buffer zone requirement violates due process clause because it
unreasonably deprives plantation owners, especially those who own lesser land
19
areas, say, 1 or 2 hectares, of the lawful and beneficial use of such areas to be
ceded, without just compensation.
Respondent-appellee City of Davao begs to disagree. First, it is well to
note that the local legislative act subject of the instant case is a police power
measure, not an exercise of the power of eminent domain. Thus, just
compensation is out of the province of this controversy. As pronounced by this
Honorable Appellate Court itself citing Social Justice Society, et al vs. Atienza
(Decision, at page 35, In the exercise of police power, there is a limitation on or
restriction of property interests to promote public welfare which involves no
compensable taking. Compensation is necessary only when the States power
of eminent domain is exercised. In eminent domain, property is appropriated and
applied to some public purpose. Property condemned under the exercise of
police power, on the other hand is noxious or intended for a noxious or
forbidden purpose and, consequently, is not compensable.
Second, nothing in Section 6 of the herein subject ordinance with requires
petitioners-appellants to cede a portion of their landholdings. It must not be
forgotten that the term cede necessarily connotes the giving up or formal
surrender of ones right over a property. Furthermore, the term essentially means
transfer of title or ownership over the property. That is not in the case of the
instant legal suit considering that Ordinance No. 0309-07 does not say so.
What is mandated of petitioners-appellants by Section 6 of Ordinance No.
0309-07, Series of 2007 is merely to provide a 30-meter buffer zone around the
entire land area which must be planted with diversified plants such as trees for
the purpose of preventing the drift, which is inevitable too in the case of ground
spraying, from reaching areas outside the plantations. The drift which goes off-
target, as told by the witnesses, causes too much discomfort and ordeal upon
the people nearby, and can possibly contaminate the environment, poisons as
they are.
The herein subject ordinances Buffer Zone mandate does not in any
manner deprives petitioners-appellants, or any other plantation owners, of the
unlawful and beneficial use of their landholdings. Once these buffer zones are
already fixed around the area, its existence shall be for the purpose of screening
or if possible, debarring the toxic spray drifts from hitting areas other than the
banana plants. The subject local laws purpose is to spare the neighboring
communities, especially the people habiting around and within, and the
20
neighboring environmental spots such as bodies of water, from the highly
disturbing, irksome and intolerably rancid character of fungicide fumes brought
about by the toxic drift. Thus, the use of the property as buffer zone cannot
be said to be unlawful.
With all due respect, neither can this honorable Court rightly say that the
buffer zone requirement of the ordinance deprives petitioners-appellants of the
beneficial use of their property. The purpose of its inclusion in the ordinance
banning aerial spraying is, in itself, lawful, that is, to obviate spray drifts which
are equally toxic from hitting non targets such as human beings and the
environment. Corollary to it, as soon as the buffer zones are already established
and functioning, then that portion of the plantation owners property is being used
not without any benefit. The benefit of its use, though not on the part of the
petitioners-appellants, inures to the people habiting around and the ever
precious ecology.
Perhaps it would do well to be reminded that both the constitution and the
statutes recognize the rule that the use of a property bears a social function.
This legal dogma simply means that one is under legal obligation to use a
property he owns not only for his own good but also for the benefit of others.
Petitioners-appellants are not exempt from complying with the foregoing legal
precept. The said tenet is actually both a constitutional and statutory limitations
on the exercise of property and proprietary rights. Philippine jurisprudence is
abundant in teachings in this regard, thus;
X x x. The use of property bears a social function and is
subject to the state's duty to intervene for the common good. X x x
(emphasis supplied) (Telecom And Broadcast Attorneys of the
Phils. V. COMELEC, et al, GR No. 132922, April 21, 1998).
X x x. The 1987 Constitution recognizes the existence of
that power when it provides: 'Sec. 6. The use of property bears a
social function, and all economic agents shall contribute to
the common good. Individuals and private groups, including
corporations. cooperatives, and similar collective organizations,
shall have the right to own, establish, and operate economic
enterprises, subject to the duty of the State to promote distributive
justice and to intervene when the common good so demands
(Article XII).' The interconnection which has been required of PLDT
is a form of "intervention" with property rights dictated by "the
objective of government to promote the rapid expansion of
telecommunications services in all areas of the Philippines, . . .to
maximize the use of telecommunications facilities available, . . .in
recognition of the vital role of communications in nation building . . .
and to ensure that all users of the public telecommunications
21
service have access to all other users of the service wherever they
may be within the Philippines at an acceptable standard of service
and at reasonable cost" (DOTC Circular No. 90-248). Undoubtedly,
the encompassing objective is the common good. The NTC, as the
regulatory agency of the State, merely exercised its delegated
authority to regulate the use of telecommunications networks when
it decreed interconnection. . . .X x x (emphasis supplied) (PLDT v.
NTC, et al. GR No. 94374, February 21, 1995).

The argument that petitioners-appellants offered for and in behalf of the
alleged small farm owners insofar as the buffer zone requirement is concerned is
off-tangent. No small farm owner is a party in this case. If any one of them is
aggrieved by the ban, they should have intervened. But no one did. That, by
itself, is indication enough that the buffer-zone requirement was acceptable to
them.
It is worth noting that this case involves large banana plantation
corporations. No one from among its members owns and/or operates a banana
plantation with an area as small as one (1) or two (2), or even ten (10) hectares.
Besides, no one from the small banana plantation owners, if any, joined
petitioners-appellants in instituting and prosecuting this instant suit. Neither is
there any showing that the said small farm owners, largely by themselves,
individually or collectively questioned Davao Citys ordinance banning aerial
spraying for being unconstitutional.
In short, petitioners-appellants cannot properly argue on the alleged
impropriety of the buffer zone requirement, neither can they speak for and in
behalf of, nor represent the alleged small farm owners who do not stand to be
adversely affected by the herein questioned ordinance, or who did not make
themselves parties to the instant suit, or who did not by themselves questioned
the aerial spraying ban ordinance.
Therefore, in line with the above discussion, Davao City ordinance
banning aerial spraying does not constitute unlawful taking of property.
The honorable Justice Borja has had the occasion to give a good lecture
in his Dissenting Opinion (at pages 19-20) on this particular concern. He
correctly held that:
I disagree with the majority on this point. I do not discern
any confiscatory taking under Section 6 of the Ordinance. The 30-
22
meter buffer zone is related to the issue of air pollution. The
Ordinance does not ban the ground spraying of pesticides. But it
will be noted that appellants own evidence establishes the
phenomenon of spray drift even in the case of manual spraying.
The buffer zone serves to insulate neighboring residents from
the drift from manual spraying. In this context, the size or area
of the plantation is of no moment. The width of the buffer zone
is dictated not by the size of the plantation but by the extent of
the drift.
It is not true, therefore, that there is no reasonable
relation between the purposes of the Ordinance and the
imposition of the buffer zone.
The citation of the Laguio case is particularly inapt. In that
case, the City Government of Manila sought the closure of
business which the said Government claimed to be offensive to
morality. In the instant case, the banana plantation businesses are
not being closed. What is prohibited is merely a particular mode of
delivering pesticides to the banana trees and the imposition of
buffer zones. The comparison between the two cases can hardly
be less apropos (italics and emphasis supplied).
By the same token, respondent-appellee begs to disagree with this
honorable Appellate Court in invoking the doctrine of Primus in tempore,
potior jure (first in time, stronger in right). In its Decision (at page 43), this
honorable Court said that it X x x appreciates that the banana plantations are
located in agricultural landholdings which have been occupied, appropriated and
devoted by the petitioners-appellants to their trade, engaging into the practice of
aerial spraying to curb the deleterious effects of virulent banana diseases, long
before dwellers, title holders, and even squatters, surfaced, acquired and
inhabited neighboring potions thereof. Petitioners-appellants who have acquired
a right of prior appropriation, as against these inhabitants, can invoke such right
and they cannot be unduly disturbed in their use of these landholdings and be
prohibited, among others, from practicing aerial spraying thereon, to the
detriment to their corporeal rights, as the assailed Ordinance intends to impose.
Nonetheless, such right may still be subject to reasonable legislation. X x
x. (italics and emphasis supplied).
First, the instant case involves NO issue of possession or the title
covering appellants banana plantations. Second, such was not raised by
petitioners-appellants during trial at the court below and even in their pleadings.
Thus, it is entirely a new and foreign matter. Third, on the assumption that there
is such an issue raised by petitioners-appellants, no evidence was offered by
petitioners-appellants to prove the same.
23
Most importantly, the ordinance sought to be nullified by petitioners-
appellants does not in any way operate to deprive, or evict petitioners-appellants
from their property. What is merely sought to be outlawed by the herein subject
ordinance is the use of aerial spraying as a mode of applying fungicides to
banana plants and other agricultural crops. There is nothing in the herein
assailed ordinance which mandates the banana plantation owners or other
persons or entities engaged in agricultural production to surrender possession of
their lands to, say, the City Government of Davao, or another person or entity.
To stress the point anew, Ordinance No. 0309-07, Series of 2007 of the
City of Davao merely proscribes the use of aerial spraying, considering the
offensiveness of, and danger brought about by, the spray drift which, as duly
established by respondents-appellee, have been known to hit non-target areas
and cause discomfort to the people habiting around. The banana plantations and
other agricultural entities are merely asked to cease in aerially spraying
fungicides and other chemicals, and not to vacate or surrender their
landholdings. The records of the instant case is wanting of any showing that
respondent-appellees City Government of Davao or the complaining individuals
questioned petitioners-appellants title to or possession over the land areas they
utilize in growing banana plants.
Surely, petitioners-appellants cessation of aerial spraying activities does
not amount to deprivation of their property. As stated above, they are not asked
to relinquish ownership or possession of their lands. They can continue to
nurture and grow their banana plants. Neither does the Ordinance prohibit the
use of their aero planes, other than broadcasting fungicides aerially. They can
still use the same for some other lawful purpose, such as transportation of goods
or personnel. In like manner, the fungicides they have purchased for aerial
spraying can still be used in ground spraying because precisely it is the same
chemical used in controlling banana plant diseases.
Besides, NOT ALL land areas used by petitioners-appellants in planting
and growing banana plants are owned by them or registered under its, or its
members, corporate name. Be it known to this honorable Court that a huge
portion of these banana plantations are owned by INDIVIDUAL GROWERS. Its
just that these growers whose landholdings are adjacent to each other leased
the same to the banana corporations for banana production. In fact, the said
growers subsequently entered into contract with the same banana companies
24
binding themselves to personally till the land they lease, particularly by planting
and growing the bananas, with the other technical support and other inputs being
supplied by petitioners-appellants for a fee of course.
Ergo, the doctrine Primus in tempore, potior jure as used by this
honorable Appellate Court in justifying its verdict of disposing of the instant case
in favor of the petitioners-appellants, is, to our view, inapplicable. A survey of
jurisprudential pronouncements on the matter reveals that such doctrine only
applies in sales of parcels of lands, thus:
In interpreting this provision, the Court declared that the
governing principle is primus tempore, potior jure (first in time,
stronger in right). Knowledge gained by the first buyer of the
second sale cannot defeat the first buyer's rights, except where the
second buyer registers in good faith the second sale ahead of the
first as provided by the aforequoted provision of the Civil Code.
Such knowledge of the first buyer does not bar him from availing of
his rights under the law, among them to register first his purchase
as against the second buyer. However, knowledge gained by the
second buyer of the first sale defeats his rights even if he is first to
register the second sale, since such knowledge taints his prior
registration with bad faith. 34 It is thus essential, to merit the
protection of Art. 1544, second paragraph, that the second realty
buyer must act in good faith in registering his deed of sale
(emphasis supplied) (Carmelita Fudot v. Cattleya Land, Inc., GR
No. 171008, September 13, 2007).
The law is clear that when the thing sold twice is an
immovable, the one who acquires it and first records it in the
Registry of Property shall be deemed the owner. Primus tempore,
potior jure. First in time, stronger in right. However, the act of
registration must be coupled with good faith. That is, the registrant
must have no knowledge of any defect in the title of the vendor or
must not have been aware of facts which should have put him
upon such inquiry and investigation as might be necessary to
acquaint him with any such defect (emphasis supplied) (Sps.
Brilly and Olivia Bernardez, et al v. Court of Appeals, et al, GR
No. 165888, September 14, 2007).
The principle of primus tempore, potior jure (first in time,
stronger in right) gains greater significance in case of double sale
of immovable property. When the thing sold twice is an immovable,
the one who acquires it and first records it in the Registry of
Property, both made in good faith, shall be deemed the owner. 38
Verily, the act of registration must be coupled with good faith
that is, the registrant must have no knowledge of the defect or lack
of title of his vendor or must not have been aware of facts which
should have put him upon such inquiry and investigation as might
be necessary to acquaint him with the defects in the title of his
vendor (emphasis supplied) (San Lorenzo Devt. Corp., vs.
Court of Appeals, GR No. 124242, January 21, 2005).
25
Jurisprudence teaches that the governing principle is
primus tempore, potior jure (first in time, stronger in right).
Knowledge gained by the first buyer of the second sale cannot
defeat the first buyer's rights except where the second buyer
registers in good faith the second sale ahead of the first, as
provided by the aforequoted provision of the Civil Code. Such
knowledge of the first buyer does not bar him from availing of his
rights under the law, among them to register first his purchase as
against the second buyer. In converso, knowledge gained by the
second buyer of the first sale defeats his rights even if he is first to
register the second sale, since such knowledge taints his prior
registration with bad faith. This is the price exacted by the same
provision of the Civil Code for the second buyer to be able to
displace the first buyer; before the second buyer can obtain priority
over the first, he must show that he acted in good faith throughout
(i.e. ignorance of the first sale and of the first buyer's rights) from
the time of acquisition until the title is transferred to him by
registration, or, failing registration, by delivery of possession
(emphasis supplied) (Sps. Samuel and Susana Ulep, et al, v.
Court of Appeals, et al, GR No. 125254, October 11, 2005).
From the foregoing jurisprudential declarations, it is very clear that the
first in time, stronger in right principle only applies to disputes regarding sale of
realties. By its essence, the said doctrine is entirely inapplicable in the instant
case. Thus, the ratiocination by this honorable Appellate Court in this particular
concern is not in keeping with the rules.
And finally, long before these plantations became such, people were
already residing thereat. These lands were not UNINHABITED before the
appellants arrived. They were peopled areas.

As what has been correctly pointed out by Honorable Justice Borja in his
Dissenting Opinion (at page 1), In any challenge against the constitutionality of
a statute or ordinance, the overarching principle is that the acts of the legislature
national or local enjoy the presumption of validity.
In this case, petitioners-appellants failed to overthrow the said
presumption. In answer to Mr. Justice Borjas query (at page 3, Dissenting
Opinion), respondent-appellee City of Davao humbly submits that petitioners-
appellants have marshaled no evidence to establish the unreasonableness of
26
the Ordinance banning aerial spraying. Thus, the presumptive validity of the
subject ordinance prevails.
In conclusion, it is stressed and re-stressed that the constitutionally and
statutorily guaranteed rights of the people to health and a healthful and balanced
ecology ranks ahead of the quest for dollars, dollars and more dollars. Under the
doctrine of Parens Patriae, the State, including local government units, must be
vigilant for the protection of the underprivileged, as against the economically
privileged. To reecho the honorable Supreme Courts most recent excursus on
the matter, appellee invokes the following jurisprudential teaching:
The Senior Citizens Act was enacted primarily to maximize
the contribution of senior citizens to nation-building, and to grant
benefits and privileges to them for their improvement and well-
being as the State considers them an integral part of our society.
x x x
The law is a legitimate exercise of police power which,
similar to the power of eminent domain, has general welfare for its
object. Police power is not capable of an exact definition, but has
been purposely veiled in general terms to underscore its
comprehensiveness to meet all exigencies and provide enough
room for an efficient and flexible response to conditions and
circumstances, thus assuring the greatest benefits.

Accordingly, it
has been described as the most essential, insistent and the least
limitable of powers, extending as it does to all the great public
needs. It is [t]he power vested in the legislature by the
constitution 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 of the subjects of the same.
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.
x x x
Moreover, the right to property has a social dimension.
While Article XIII of the Constitution provides the precept for the
protection of property, various laws and jurisprudence, particularly
on agrarian reform and the regulation of contracts and public
27
utilities, continuously serve as a reminder that the right to
property can be relinquished upon the command of the State
for the promotion of public good. (italics and emphasis
supplied) (Carlos Superdrug Corp., et al vs. DSWD, et al, G.R.
No. 166494, June 29, 2007).
Most importantly, the newest pronouncement of the Supreme Court is
very illustrative, highly enlightening, and worth pondering:
Essentially, the oil companies are fighting for their right to
property. They allege that they stand to lose billions of pesos if
forced to relocate. However, based on the hierarchy of
constitutionally protected rights, the right to life enjoys
precedence over the right to property. The reason is obvious,
life is irreplaceable, property is not. When the state or LGUs
exercise police power clashes with a few individuals right to
property, the former should prevail (SOCIAL JUSTICE
SOCIETY ET AL V. HON. JOSE L. ATIENZA, GR NO. 156052,
FEBRUARY 13, 2008).

In the same manner, to borrow the language of the Supreme Court in the
afore-cited case, any delay for the implementation of the herein questioned
ordinance is unfair to the inhabitants of the City of Davao and its leaders who
have categorically expressed their desire for the banning of aerial spraying.
This power to chart and control their own destiny and preserve their lives
and safety should not be curtailed by appellants warnings of doomsday
scenarios and threats of economic disorder if the ordinance is enforced
(SOCIAL JUSTICE SOCIETY ET AL V. HON. JOSE L. ATIENZA supra. )
(emphasis supplied).
As a matter of fact, the novelty of this case and the inappropriateness of the
decision sought to be reconsidered herein caught the attention of no less than
the renowned Philippine constitutionalist, Fr. Joaquin Bernas, S.J. In the
January 26, 2009 issue of the Philippine Daily Inquirer, the lawyer-priest has
the following points to say:
X x x
The case in essence is a conflict between the right to
property and the right to life. The accepted jurisprudence is that in
the hierarchy of rights life normally prevails over property. This
principle will certainly play a role in any review of the Court of
Appeals decision.
28
Strangely, while the challengers of the ordinance expressed
concern about the health of farm workers doing manual spraying,
no similar concern was expressed about the health of the other
people in the vicinity.
On the battle about the impossibility of carrying out the
switch from aerial spraying within the three-month period set by the
ordinance, the challengers set out a parade of experts. Contrary
assessments were also presented by the City of Davao, but the
Court of Appeals belittled the effort of the City saying that it
betrays its lack of technical understanding on the intricacies of the
engineering works required for the efficient operation of banana
plantations, and exposes its indifference to the corporeal rights
[sic] of banana planters to protect and enhance their investments.
X x x
It is also interesting that the Court of Appeals did not find
itself satisfied with the evidence on whether the sprays being used
were safe or not. It said: We are skeptical of the foregoing claims
on the seemingly fool proof safety of pesticides or fungicides, both
as chemical substances and in terms of human exposure to the
same, since petitioners-appellant already admitted that the
fungicides or pesticides the use would prejudice the health of their
workers if manually sprayed. The admission would sensibly mean
that exposure to such substances, even in the diluted form, poses
danger to human health, The CA continued Our opinion is not
necessarily a categorical indictment against the decree of safety in
the usage of these substances. However, without preponderant
and actual empirical proof of the testimonies of petitioners-
appellants witnesses, no conclusion can be reached as to whether
or not the use of pesticides or fungicide is safe.

On the other hand, the court also said that the respondents
did not prove that the aerial spraying of substances is the
proximate cause of the various ailments (itchiness and irritation of
skin, contraction and tightening of chest, minimal tuberculosis,
recurring stomachaches, nausea and lost of appetite) they
allegedly suffer.
On the basis of these two uncertainties the court decided to
favor the planters. This raises the issue whether in a conflicting
situation like this where the court is uncertain as to who is wrong
and who is right a court should substitute its judgment for that of
the legislator. Apparently the legislator had made its judgment on
the basis of evidence it had found and on labels on the solutions
saying, as the editor of Sunstar Davao enumerates:
Harmful if absorbed through the skin, may cause
nose, throat, eyes and skin irritation.
Do not breathe dust of spray mist.
This pesticide is toxic to fish. Drift and runoff from
treated areas may be hazardous to aquatic
organisms in neighboring areas.
29
During aerial application, human flaggers must be in
enclosed cabs.
X x x
A photocopy of a clipping of the afore-quoted news writing is hereto
attached as Annex A, and forms part of this Motion for Reconsideration.
With all the ratiocinations cum citation of the prevailing attendant facts
and circumstances, and the applicable prevailing legal precepts as
comprehensively discussed above, Davao City Ordinance No. 0309-07, Series of
2007 is, therefore, NOT UNCONSTITUTIONAL.
,
HEREFORE, all the foregoing considered, it is hereby most
respectfully prayed of the honorable Court of Appeals that:
1. The Decision dated 09 January 2009 be REVERSED
AND SET ASIDE, and a new judgment be entered AFFIRMING
the Decision dated 22 September 2007 of the Regional Trial
Court of Davao City (Branch 17) upholding the validity of Davao
City Ordinance No. 0309-07, Series of 2007, otherwise known as
An Ordinance Banning Aerial Spraying As An Agricultural
Practice In All Agricultural Entities In Davao City;
2. The Writ of Preliminary Injunction dated 28 January 2008, which
has been made permanent by this honorable Court in its January
9, 2009 Decision, be DISSOLVED.
RESPECTFULLY SUBMITTED.
Davao City, (for Cagayan de Oro City), Philippines, _________________.
W
30
THE OFFICE OF THE CITY LEGAL OFFICER
City Hall, Davao City
Counsel for Respondent City of Davao
By:
Atty. J. MELCHOR V. QUITAIN
City Legal Officer
I.B.P. (2009) No.: 736179 (10-08-08, D.C.)
P.T.R. (2009) No.: 7112451 (10-08-08, D.C.)
MCLE Exemption No. 11-000334
Roll of Attorneys No.: 23249
Atty. JOSEPH DOMINIC S. FELIZARTA
Legal Officer IV
P.T.R. No.: 7310217 (1-05-09/D.C.)
I.B.P. No.: 762977 (1-06-09/D.C.)
Roll of Attorneys No. 48817
MCLE Compliance No. II-0011017
Atty. ENRIQUE J. A. BONOCAN
Legal Officer IV
PTR (2009) No. 7310219 (1-05-09/DC)
IBP (2009) No. 736238 (12-02-08/DC)
Roll of Attorneys No. 48825
REQUEST
The CLERK OF COURT
Court of Appeals
22
nd
Division
Cagayan de Oro City
Sir/Madam:
Greetings!
Please submit the foregoing Motion For Reconsideration for the kind
consideration and resolution of this Honorable Court immediately upon receipt
hereof, or the soonest thereafter, taking into account the nature of the same.
Atty. J. MELCHOR V. QUITAIN
Atty. JOSEPH DOMINIC S. FELIZARTA
31
Atty. ENRIQUE J. A. BONOCAN
NOTICE
Villaraza & Angangco Law Offices
Counsel for Petitioner PBGEA et al
5F, LTA Building 118 Perea Street,
Legaspi Village, Makati City
Sentro ng Alternatibong Lingap Panligal
(SALIGAN-Mindanao)
Door 1, 422 Champaca St.,
Juna Subdivision, Matina,
Davao City
Messieurs and Mesdames,
Greetings!
Please be informed that the foregoing Motion For Reconsideration shall
be submitted for the consideration and resolution of this Honorable Court,
immediately upon receipt hereof, or the soonest thereafter.
Atty. J. MELCHOR V. QUITAIN
Atty. JOSEPH DOMINIC S. FELIZARTA
Atty. ENRIQUE J. A. BONOCAN
EXPLANATION
A copy of this Motion For Reconsideration is served upon petitioners
counsel through registered mail due to impracticability of personal delivery on
account of distance constraints.
Atty. J. MELCHOR V. QUITAIN
Atty. JOSEPH DOMINIC S. FELIZARTA
32
Atty. ENRIQUE J. A. BONOCAN
Copies Served on:
COURT OF APPEALS
(CA G.R. CV No. 01389)
Mindanao Station
Cagayan de Oro City
THE OFFICE OF THE SOLICITOR GENERAL
134 Amorsolo St., Legaspi Village,
Makati City
VILLARAZA & ANGANGCO LAW OFFICES
Counsel For PBGEA et al
5
th
Flr., LTA Building,
118 Perea Street, Legaspi Village,
1229 Makati City, Metro Manila
SENTRO NG ALTERNATIBONG LINGAP
PANLIGAL (SALIGAN)
Counsel for Intervenors
Door 1, #422 Champaca St.,
Juna Subdivision, Matina,
Davao City
AFFIDAVIT OF PROOF OF FILING AND SERVICE
, I . ELISEO B CAPANGPANGAN, , , of legal age Filipino married and a resident of
, , , Davao City Philippines after having been duly sworn in accordance with law hereby
: depose and say
1. That I am the designated Process Server of the Office of the City Legal
, ; Officer Davao City
2. 30 2009, That on January I filed and served the original and duplicate copies
3 5 through registered mail in accordance with Sections and in relation to
10, 13 , : Section Rule of the Rules of Court to wit
MOTION FOR RECONSIDERATION
30 2009 Dated January
. . . . in CA G R CV No 01389-MIN, entitled Pilipino Banana Growers and
, ., . , Exporters Association Inc et al vs City of Davao et al, by depositing
, , , them at the Post Office in NCCC Mall Matina Davao City in sealed
, , ., , envelopes plainly addressed to the Supreme Court Padre Faura St Manila
, / Philippines and the parties and or attorneys for the parties at their
/ respective offices residence with postage fully prepaid hereto attached and
33
with instructions to the Postmaster to return the mail to the sender after
(10) ; ten days if undelivered
3. : That the addressees are as follows
COURT OF APPEALS .: _________ Registry Receipt No
( . . . 01389) CA G R CV No : 30 2009 Date January
Mindanao Station
Cagayan de Oro City
THE OFFICE OF THE SOLICITOR GENERAL .: _________ Registry Receipt No
134 ., , Amorsolo St Legaspi Village : 30 2009 Date January
Makati City
VILLARAZA & ANGANGCO LAW OFFICES Registry Receipt No.: ___________
Counsel For Petitioners : 30 2009 Date January
5
th
Flr., LTA Building,
118 Perea Street, Legaspi Village,
1229 Makati City, Metro Manila
SENTRO NG ALTERNATIBONG LINGAP Registry Receipt No.: ___________
PANLIGAL (SALIGAN) : 30 2009 Date January
Counsel for Intervenors
Door 1, #422 Champaca St.,
Juna Subdivision, Matina,
Davao City
4. That I filed and served the foregoing pleading by registered mail due to the distance
involved, lack of time and personnel rendering personal filing and service
impracticable.
5. That I am executing this Affidavit in order to attest to the truth of the foregoing facts
and for whatever legal intents and purposes it may serve.
IN WITNESS WHEREOF, I have hereunto set my hand this 30 2009 January , in the City
of Davao, Philippines.
ELISEO B. CAPANGPANGAN
Affiant
} Republic of the Philippines
} . CITY OF DAVAO s s
--------------------- x x
, , Before me a notary public for and in the City of Davao personally appeared
. ELISEO B CAPANGPANGAN, . ___________, __________, with CTC No issued on at
, , Davao City Philippines who is personally known to me to be the same person who
, presented the foregoing instrument and signed the same in my presence and who
took an oath before me as to such instrument
34
- . Witness my hand and seal on the date and place above written
. .: ____ Doc No
.: ____ Page No
.: ____ Book No
2009 Series of
35