(1) G.R. No.

95279             July 25, 1991

ESTATE OF GREGORIA FRANCISCO, herein represented by SILVESTRE F. TAN,

Administrator, petitioner,
vs.
HON. COURT OF APPEALS, HON. SALVADOR A. MEMORACION, in his capacity as
Presiding Judge of the Regional Trial Court of Isabela, Basilan Province, Branch 2,
MUNICIPALITY OF ISABELA, Basilan Province, herein represented by BENJAMIN
VALENCIA, in his capacity as Municipal Mayor, Isabela, Basilan Province, ROGELIO L.
IGOT, FELICISIMO PIOQUINTO, DANIEL PADINAS, ANTONIO CABANGON,
FELIX ROXAS, BENJAMIN FERRER, GREGORIO TABADA, EFREN DELOS REYES,
FLORENCIO HUGO, JESUS FRANCISCO, ALFREDO TUBILAG, PABLO
ANDRES, respondents.

Bienvenido G. Martin for petitioner.

Laurencio Saavedra for private respondents.

MELENCIO-HERRERA, J.:

Litigated herein is a quonset building situated in Port Area, Strong Boulevard, Isabela, Basilan,
which was ordered demolished by respondent Municipal Mayor, Benjamin Valencia. Respondent
municipal employees implemented the demolition, for which reason they are also impleaded.

The quonset was constructed by the American Liberation Forces in 1944. It was purchased in
1946 by Gregoria Francisco, who died in 1976. It stands on a lot owned by the Philippine Ports
Authority and faces the municipal wharf. By virtue of Proclamation No. 83 issued by President
Elpidio Quirino, said land was declared for the exclusive use of port facilities.

On 10 January 1989, the Philippine Ports Authority (Port of Zamboanga) issued to Tan Gin San,
surviving spouse of Gregoria Francisco, a permit to occupy the lot where the building stands for
a period of one (1) year, to expire on 31 December 1989. The permittee was using the quonset
for the storage of copra.

On 8 May 1989, Respondent Mayor, through respondent Municipal Action Officer, notified Tan
Gin San by mail to remove or relocate its quonset building, citing Zoning Ordinance No. 147 of
the municipality; noting its antiquated and dilapidated structure; and. stressing the "clean-up
campaign on illegal squatters and unsanitary surroundings along Strong Boulevard." This was
followed by another letter of 19 May 1989 of the same tenor.

Since the notifications remained unheeded by petitioner, Respondent Mayor ordered the
demolition on 24 May 1989.

Aggrieved, petitioner sought a Writ of Prohibition with Injunction and Damages before the
Regional Trial Court of Basilan, Branch 2 (docketed as S.P. No. 4).
On 7 August 1989, the Trial Court1 denied the Writ of Prohibition and upheld the power of
respondent Mayor to order the demolition without judicial authority, adverting to Zoning
Ordinance No. 147 of the Municipality of Isabela, Basilan. Petitioner duly interposed an appeal.

On 6 September 1989, petitioner's quonset building was completely demolished (Rollo, p. 49). In
its place sprang shanties and nipa huts, photographs of which have been attached to petitioner's
Memorandum.

On 25 January 1990, the Court of Appeals (in CA-G.R. SP No. 18822)2 initially reversed the
Trial Court and issued a Writ of Prohibition. It ruled that Respondent Mayor was not vested with
power to order summarily, and without any judicial proceeding, the demolition of the quonset
building, which was not a nuisance  per se and that petitioner is in legal possession of the land on
which the building stands by virtue of the permit issued by the Philippine Ports Authority
(Zamboanga Province). The restoration to petitioner of the building materials removed upon
demolition, and the payment to it of attorney's fees of P10,000.00, were also ordered.

However, upon reconsideration sought by reswever, upon reconsideration sought by respondent

officials, Respondent Court3 reversed itself on 13 June 1990 stating that "although Municipal
Mayor Valencia initially issued an order demolition without judicial process, the deficiency was
remedied when appellant (petitioners herein) filed a petition for prohibition and injunction and
was heard on oral argument after appellees (respondent officials) filed their answer." Respondent
Court then quashed the Writ of Prohibition and set aside the order of restitution and payment of
attorney's fees.

Petitioner's plea for reconsideration having been denied, it is now before us seeking a reversal.

The focal issue for determination is whether or not Respondent Mayor could summarily, without
judicial process, order the demolition of petitioner's quonset building.

Respondent justify the demolition in the exercise of police power and for reasons of health,
safety and general welfare. It also relies on Ordinance No. 147 (CA Records, pp. 85-104) of the
Municipality of Isabela. For its part petitioner consistently denies to the Mayor, such power,
invoking provisions of the Local Government Code.

Ordinance No. 147, enacted on 27 December 1977, and relied upon by respondents, is entitled
"An Ordinance Establishing Comprehensive Zoning Regulations for the Municipality of Isabela .
. ." It is not disputed that the quonset building, which is being used for the storage of copra, is
located outside the zone for warehouses. It is referred to in Ordinance as a non-conforming
structure, which should be relocated. And in the event that an immediate relocation of the
building can not be accomplished, Section 16 of the Ordinance provides:

A certificate of non-conformance for all non-conforming uses shall be applied for by the
owner or agent of the property involved within twelve (12) months from the approval of
this Ordinance, otherwise the non-conforming use may be condemned or removed at the
owner's expense.
Even granting that petitioner failed to apply for a Certificate of Non-conformance, the foregoing
provision should not be interpreted as authorizing the summary removal of a non-conforming
building by the municipal government. For if it does, it must be struck down for being in
contravention of the requirements of due process, as originally held by the respondent Court.

Moreover, the enforcement and administration of the provisions of the Ordinance resides with
the Zoning Administrator (Article VII, Secs. 1 and 2, Ordinance No. 147). It is said official who
may call upon the City Fiscal to institute the necessary legal proceedings to enforce the
provisions of the Ordinance (id., Sec. 2, Ibid.). And any person aggrieved by the decision of the
Zoning Administrator regarding the enforcement of the Ordinance may appeal to the Board of
Zoning Appeals (id., Sec. 7, Ibid.).

That a summary remedy cannot be resorted to is further evident from the penal provisions of said
Ordinance, reading:

Any person who violates any of the provisions of this ordinance shall, upon conviction,
be punished by a fine of not less than fifty pesos (P50.00) but not more than two hundred
pesos (P200.00) or by imprisonment of not less than one (1) month but not exceeding six
(6) months, or both, at the discretion of the Court . . . (ibid., Sec. 11). [Emphasis ours].

Violation of a municipal ordinance neither empowers the Municipal Mayor to avail of extra-
judicial remedies.1avvphi1 On the contrary, the Local Government Code imposes upon him the
duty "to cause to be instituted judicial proceedings in connection with the violation of
ordinances" (Local Government Code, Sec. 141 [2] [t]).

Respondents cannot seek cover under the general welfare clause authorizing the abatement of
nuisances without judicial proceedings. That tenet applies to a nuisance per se or one which
affects the immediate safety of persons and property and may be summarily abated under the
undefined law of necessity (Monteverde v. Generoso, 52 Phil. 123 [1982]). The storage of copra
in the quonset building is a legitimate business. By its nature, it cannot be said to be injurious to
rights of property, of health or of comfort of the community.If it be a nuisance per accidens it
may be so proven in a hearing conducted for that purpose. It is not per se a nuisance warranting
its summary abatement without judicial intervention.

The provincial governor, district engineer or district health officer is not authorized to
destroy private property consisting of dams and fishponds summarily and without any
judicial proceedings whatever under the pretense that such private property constitutes a
nuisance. A dam or a fishery constructed in navigable rivers is not a nuisance per se. A
dam or fishpond may be a nuisance per accidens where it endangers or impairs the health
or depreciates property by causing water to become stagnant. (Monteverde v.
Generoso, supra).

While the Sangguniang Bayan may provide for the abatement of a nuisance (Local Government
Code, Sec. 149 [ee]), it cannot declare a particular thing as a nuisance per se and order its
condemnation. The nuisance can only be so adjudged by judicial determination.
 [Municipal councils] do not have the power to find as a fact that a particular thing is a
nuisance when such thing is not a nuisance per se nor can they authorize the extra
judicial condemnation and destruction of that as a nuisance which, in its nature, situation
or use is not such. These things must be determined in the ordinary courts of law. In the
present case, . . . the ice factory of the plaintiff is not a nuisance per se. It is a legitimate
industry . . . . If it be in fact a nuisance due to the manner of its operation, that question
cannot be determined by a mere resolution of the board. The petitioner is entitled to a fair
and impartial heating before a judicial tribunal. (Iloilo Cold Storage v. Municipal
Council, 24 Phil. 47 [1913]).

Petitioner was in lawful possession of the lot and quonset building by virtue of a permit from the
Philippine Ports Authority (Port of Zamboanga) when demolition was effected. It was not
squatting on public land. Its property was not of trifling value. It was entitled to an impartial
hearing before a tribunal authorized to decide whether the quonset building did constitute a
nuisance in law. There was no compelling necessity for precipitate action. It follows then that
respondent public officials of the Municipality of Isabela, Basilan, transcended their authority in
abating summarily petitioner's quonset building. They had deprived petitioner of its property
without due process of law. The fact that petitioner filed a suit for prohibition and was
subsequently heard thereon will not cure the defect, as opined by the Court of Appeals, the
demolition having been a fait accompli prior to hearing and the authority to demolish without a
judicial order being a prejudicial issue.

For the precipitate demolition, therefore, petitioner should be entitled to just compensation, the
amount of which is for the Trial Court to determine. We are not inclined to grant petitioner
damages, however, as it simply ignored the demand to remove or relocate its quonset building.

WHEREFORE, the judgment under review of respondent Court of Appeals, dated 13 June 1990,
is SET ASIDE; its original Decision, promulgated on 25 January 1990, is REINSTATED; and
this case is ordered REMANDED to the Regional Trial Court of Basilan, Branch 2, for the
determination of the just compensation due petitioner for the demolition of its quonset building.

SO ORDERED.

(2) G.R. No. 192861               June 30, 2014

LINDA RANA, Petitioner,
vs.
TERESITA LEE WONG, SPS. SHIRLEY LEE ONG and RUBEN ANG ONG,
represented by their Attorney-in-fact WILSON UY, and SPS. ROSARIO and.WILSON
UY, Respondents.

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

G.R. No. 192862

SPS. ROSARIO and WILSON UY, WILSON UY as attorney-in-fact of TERESITA LEE
WONG, and SPS. SHIRLEY LEE ONG and RUBEN ANG ONG, Petitioners,
vs.
SPS. REYNALDO. and LINDA RANA, Respondents.

DECISION

PERLAS-BERNABE, J.:

Assailed in these consolidated petitions for review on certiorari1 are the Decision2 dated July 13,
2005 and the Resolution3 dated June 18, 2010 of the Court of Appeals (CA) in CA-G.R. CV No.
78463 which affirmed the Decision4 dated December 20, 2002 of the Regional Trial Court of
Cebu City, 7th Judicial Region, Branch 22 (RTC) in Civil Case Nos. CEB-20893 and CEB-
21296.

The Facts

Teresita Lee Wong (Wong) and Spouses Shirley and Ruben Ang Ong (Sps. Ong) are co-owners
pro-indiviso of a residential land situated in Peace Valley Subdivision, Lahug, Cebu City,
covered by Transfer Certificate of Title (TCT) No. 1391605 (Wong-Ong property), abutting6 a
10-meter7 wide subdivision road (subject road).

On the opposite side of the subject road, across the Wong-Ong property, are the adjacent lots of
Spouses Wilson and Rosario Uy (Sps. Uy) and Spouses Reynaldo and Linda Rana (Sps. Rana),
respectively covered by TCT Nos. 1240958 (Uy property) and T-1155699 (Rana property). The
said lots follow a rolling terrain10 with the Rana property standing about two (2) meters11 higher
than and overlooking the Uy property, while the Wong-Ong property is at the same level with
the subject road.12

Sometime in 1997, Sps. Rana elevated and cemented a portion of the subject road that runs
between the Rana and Wong-Ong properties (subject portion) in order to level the said portion
with their gate.13 Sps. Rana likewise backfilled a portion (subject backfilling) of the perimeter
fence separating the Rana and Uy properties without erecting a retaining wall that would hold the
weight of the added filling materials. The matter was referred to the Office of the Barangay
Captain of Lahug14 as well as the Office of the Building Official of Cebu City (OBO),15 but to no
avail.16

The RTC Proceedings

On September 19, 1997, Wong, Sps. Ong, and Sps. Uy (Wong, et al.) filed a Complaint17 for
Abatement of Nuisance with Damages against Sps. Rana before the RTC, docketed as Civil Case
No. CEB-20893, seeking to: (a) declare the subject portion as a nuisance which affected the
ingress and egress of Wong and Sps. Ong to their lot "in the usual and [normal] manner, such
that they now have to practically jump from the elevated road to gain access to their lot and scale
the same elevation in order to get out";18 (b) declare the subject backfilling as a nuisance
considering that it poses a clear and present danger to the life and limb of the Uy family arising
from the premature weakening of Sps. Uy’s perimeter fence due to the seeping of rain water
from the Rana property that could cause its sudden collapse;19 (c) compel Sps. Rana to restore the
subject portion to its original condition; (d) compel Sps. Rana to remove the backfilling materials
along Sps. Uy’s perimeter fence and repair the damage to the fence; and (e) pay moral and
exemplary damages, attorney’s fees, litigation expenses, and costs of suit.20

In their Answer dated October 23, 1997,21 Sps. Rana countered that prior to the construction of
their residence, there was no existing road and they merely developed the subject portion which
abuts their gate in view of the rolling terrain. They claimed that Wong and Sps. Ong do not have
any need for the subject portion because their property is facing an existing road, i.e., Justice
Street. They likewise denied having undertaken any backfilling along the boundary of the Uy
property considering the natural elevation of their own property, which renders backfilling
unnecessary.22

After the filing of Sps. Rana’s Answer, Wong, et al., in turn, filed a Motion for Leave to be
Allowed to Bring in Heavy Equipment23 for the intermediate development of the Wong-Ong
property with a view to the use of the subject road as access to their lot. Notwithstanding Sps.
Rana’s opposition, the RTC granted Wong,et al.’s motion in an Order24 dated November 27,
1997 (November 27, 1997 Order), the dispositive portion of which reads as follows:
WHEREFORE, as prayed for, the motion is hereby GRANTED. Consequently, the plaintiffs are
hereby allowed to use heavy equipments/machineries in order to develop the area and make use
of the right of way which is located between the [Wong-Ong and Rana properties]. (Emphasis
supplied)

Despite the limited tenor of the November 27, 1997 Order, Wong, et al., on May 23 and 24,
1998, proceeded to level the subject portion, which, in the process, hampered Sps. Rana’s ingress
and egress to their residence, resulting too to the entrapment of their vehicle inside their
garage.25 Feeling aggrieved, Sps. Rana, on June 19, 1998, filed a Supplemental
Answer,26 praying for: (a) the restoration of the soil, boulders, grade, contour, and level of the
subject portion; and (b) payment of moral damages, actual and consequential damages, and
exemplary damages.

Meanwhile, on December 8, 1997, Sps. Rana filed with another branch of the same trial court a
Complaint27 for Recovery of Property and Damages against Sps. Uy, docketed as Civil Case No.
CEB-21296. They alleged that in October 1997, theycaused a resurvey of their property which
purportedly showed that Sps. Uyencroached upon an11-square meter (sq. m.) portion along the
common boundary of their properties. Their demands for rectification as well as barangay
conciliation efforts were, however, ignored. Thus, they prayed that Sps. Uy be ordered to remove
their fence along the common boundary and return the encroached portion, as well as to pay
moral damages, attorney’s fees, and litigation expenses. After the filing of Sps. Rana’s
complaint, Civil Case No. CEB-21296 was consolidated with Civil Case No. CEB-20893.28

In response thereto, Sps. Uy filed an Answer with Counterclaim,29 averring that prior to putting
up their fence, they caused a relocation survey of their property and were, thus, confident that
their fence did not encroach upon the Rana property. In view of Sps.Rana’s complaint, they then
caused another relocation survey which allegedly showed, however, that while they encroached
around 3 sq. m. of the Rana property, Sps. Rana intruded into 7 sq. m. of their property. Hence,
they posited that they had "a bigger cause than that of [Sps. Rana] in [so] far as encroachment is
concerned."30 Accordingly, they prayed for the dismissal of Sps. Rana’s complaint with
counterclaim for damages, attorney’s fees, and litigation expenses.

In light of the foregoing, the RTC appointed three (3) commissioners to conduct a resurvey of
the Uy and Rana properties for the purpose of determining if any encroachment occurred
whatsoever.31

The RTC Ruling

On December 20, 2002, the RTC rendered a Decision32 in the consolidated cases.

In Civil Case No. CEB-20893, the RTC found that: (a) Sps. Rana, without prior consultation
with the subdivision owner or their neighbors, developed to their sole advantage the subject
portion consisting of one-half of the width of the 10-meter subject road by introducing filling
materials, and rip rapping the side of the road; (b) the said act denied Wong and Sps. Ong the use
of the subject portion and affected the market value of their property; (c) Sps. Uy have no
intention of using the subject portion for ingress or egress considering that they built a wall
fronting the same; and (d) Wong, et al.’s manner of enforcing the November 27, 1997 Order
caused damage and injury to Sps. Rana and amounted to bad faith. In view of these findings, the
RTC declared that the parties all acted in bad faith, and, therefore, no relief can be granted to
them against each other.33

Separately, however, the RTC found that the backfilling done by Sps. Rana on their property
exerted pressure on the perimeter fence of the Uy property, thereby constituting a nuisance. As
such, the former were directed to construct a retaining wall at their own expense.34 Meanwhile, in
Civil Case No. CEB-21296, the RTC, despite having adopted the findings of Atty. Reuel T.
Pintor (Atty. Pintor) – a court-appointed commissioner who determined that Sps. Uy encroached
the Rana property by 2 sq. m35 – dismissed both the complaint and counterclaim for damages
because of the failure ofboth parties to substantiate their respective claims of bad faith against
each other.36

Dissatisfied with the RTC’s verdict, the parties filed separate appeals with the CA.

The CA Ruling

On July 13, 2005, the CA rendered a Decision37 affirming the RTC.

With respect to Civil Case No. CEB-20893, the CA found that (a) Sps. Rana’s act of elevating
and cementing the subject portion curtailed the use and enjoyment by Wong and Sps. Ong of
their properties; (b) the undue demolition of the subject portion by Wong, et al. hampered Sps.
Rana’s ingress and egress to their residence and deprived them of the use of their vehicle which
was entrapped in their garage; and (c) both parties were equally at fault in causing damage and
injury to each other and, thus, are not entitled to the reliefs sought for.38
On the other hand, the CA found that the backfilling done by Sps. Rana on their property
requires necessary works to prevent it from jeopardizing someone’s life or limb.39

As for Civil Case No. CEB-21296, the CA sustained the dismissal of the complaint as well as the
parties’ respective claims for damages for lack of legal and factual bases.40

The parties filed separate motions for reconsideration41 which were, however, denied in the
Resolution42 dated June 18, 2010, hence, the instant petitions.

The Issues Before the Court

In G.R. No. 192861, petitioner Linda Rana (Linda Rana)43 faults the RTC in (a) not finding
Wong and Sps. Uy guilty of malice and bad faith both in instituting Civil Case No. CEB-20893
and in erroneously implementing the November 27, 1997 Order, and (b) failing or refusing to
grant the reliefs initially prayed for, among others, the reconveyance of the encroached
property.44

On the other hand, in G.R. No. 192862, petitioners Wong, et al. fault the RTC in (a) applying the
in pari delicto doctrine against them and failing to abate the nuisance45 which still continues and
actually exists as Sps. Rana caused the same to be reconstructed and restored to their
prejudice,46 and (b) not finding Sps. Rana guilty of bad faith in instituting Civil Case No. CEB-
21296 and ordering them to pay damages to petitioners Wong, et al.47

The Court’s Ruling

The petitions are partly meritorious.

As both petitions traverse the issues intersectingly, the Court deems it apt to proceed with its
disquisition according to the subject matters of the cases as originally filed before the RTC.

A. Civil Case No. CEB-20893

For Abatement of Nuisance and Damages.

Under Article 694 of the Civil Code, a nuisance is defined as "any act, omission, establishment,
business, condition of property, or anything else which: (1) Injures or endangers the health or
safety of others; or (2) Annoys or offends the senses; or(3) Shocks, defies or disregards decency
or morality; or (4) Obstructs or interferes with the free passage of any public highway or street,
or any body of water; or (5) Hinders or impairs the use of property." Based on case law,
however, the term "nuisance" is deemed to be "so comprehensive that it has been applied to
almost all ways which have interfered with the rights of the citizens, either in person, property,
the enjoyment of his property, or his comfort."48

Article 695 of the Civil Code classifies nuisances with respect to the object or objects that they
affect. In this regard, a nuisance may either be: (a) a public nuisance (or one which "affects a
community or neighborhood or any considerable number of persons, although the extent of the
annoyance, danger or damage upon individuals may be unequal"); or (b) a private nuisance (or
one "that is not included in the foregoing definition" [or, as case law puts it, one which "violates
only private rights and produces damages to but one or a few persons"]).49

Jurisprudence further classifies nuisances in relation to their legal susceptibility to summary

abatement (that is, corrective action without prior judicial permission). In this regard, a nuisance
may either be: (a) a nuisance per se(or one which "affects the immediate safety of persons and
property and may be summarily abated under the undefined law of necessity");50 or (b) a
nuisance per accidens(or 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.")51

It is a standing jurisprudential rule that unless a nuisance is a nuisance per se, it may not be
summarily abated. In Lucena Grand Central Terminal, Inc. v. Jac Liner, Inc.,52 the Court, citing
other cases on the matter, emphasized the need for judicial intervention when the nuisance is not
a nuisance per se, to wit:

In Estate of Gregoria Francisco v. Court of Appeals, this Court held:

Respondents cannot seek cover under the general welfare clause authorizing the abatement of
nuisances without judicial proceedings. That tenet applies to a nuisance per se, or one which
affects the immediate safety of persons and property and may be summarily abated under the
undefined law of necessity. The storage of copra in the quonset building is a legitimate business.
By its nature, it cannot be said to be injurious to rights of property, of health or of comfort of the
community. If it be a nuisance per accidens it may be so proven in a hearing conducted for that
purpose. It is not per se a nuisance warranting its summary abatement without judicial
intervention.

In Pampanga Bus Co., Inc. v. Municipality of Tarlac where the appellant-municipality similarly
argued that the terminal involved therein is a nuisance that may be abated by the Municipal
Council via an ordinance, this Court held: "Suffice it to say that in the abatement of nuisances
the provisions of the Civil Code (Articles 694-707) must be observed and followed. This
appellant failed to do."53 (Emphases supplied; citations omitted)

Aside from the remedy of summary abatement which should be taken under the parameters
stated in Articles 70454 (for public nuisances) and 70655 (for private nuisances) of the Civil Code,
a private person whose property right was invaded or unreasonably interfered with by the act,
omission, establishment, business or condition of the property of another may file a civil action
to recover personal damages.56 Abatement may be judicially sought through a civil action
therefor57 if the pertinent requirements under the Civil Code for summary abatement, or the
requisite that the nuisance is a nuisance per se, do not concur. To note, the remedies of abatement
and damages are cumulative; hence, both may be demanded.58

In the present cases, Wong, et al. availed of the remedy of judicial abatement and damages
against Sps.Rana, claiming that both the elevated and cemented subject portion and the subject
backfilling are "nuisances" caused/created by the latter which curtailed their use and enjoyment
of their properties.

With respect to the elevated and cemented subject portion, the Court finds that the same is not a
nuisance per se. By its nature, it is not injurious to the health or comfort of the community. It was
built primarily to facilitate the ingress and egress of Sps. Rana from their house which was
admittedly located on a higher elevation than the subject road and the adjoining Uy and Wong-
Ong properties. Since the subject portion is not a nuisance per se(but actually a nuisance per
accidens as will be later discussed) it cannot be summarily abated. As such, Wong, et al.’s
demolition of Sps. Rana’s subject portion, which was not sanctioned under the RTC’s November
27, 1997 Order, remains unwarranted. Resultantly, damages ought to be awarded in favor of Sps.
Rana particularly that of (a) nominal damages59 – for the vindication and recognition of Sps.
Rana’s right to be heard before the court prior to Wong, et al.’s abatement of the subject portion
(erroneously perceived as a nuisance per se) – and (b) temperate damages60 – for the pecuniary
loss owing to the demolition of the subject portion, which had been established albeit uncertain
as to the actual amount of loss.

Sps. Rana’s entitlement to the above-mentioned damages, however, only stands in theory. This is
because the actual award thereof is precluded by the damage they themselves have caused Wong,
et al. in view of their construction of the subject portion. As the records establish, Sps. Rana,
without prior consultation with Wong, et al. and to their sole advantage, elevated and cemented
almost half61 of the 10-meter wide subject road. As homeowners of Peace Valley Subdivision,
Wong, et al. maintain the rights to the unobstructed use of and free passage over the subject road.
By constructing the subject portion, Sps. Rana introduced a nuisance per accidens that
particularly transgressed the aforesaid rights. Thus, for the vindication and recognition of Wong,
et al.’s rights, Sps. Rana should be similarly held liable for nominal damages. Under Article
2216 of the Civil Code,62 courts have the discretion to determine awards of nominal and
temperate damages without actual proof of pecuniary loss, as in this case. Assessing the
respective infractions of the parties herein, the Court finds it prudent to sustain the CA’s verdict
offsetting the damage caused by said parties against each other. The Court can, however, only
concur with the CA in result since the latter inaccurately applied,63 as basis for its ruling, the in
pari delicto principle enunciated in the case of Yu Bun Guan v. Ong64 (Yu Guan).In said case,
the Court discussed the in pari delicto principle with respect to the subject matter of inexistent
and void contracts, viz.:

Inapplicability of the in Pari Delicto Principle

The principle of in pari delicto provides that when two parties are equally at fault, the law leaves
them as they are and denies recovery by either one of them. However, this principle does not
apply with respect to inexistent and void contracts. Said this Court in Modina v. Court of
Appeals:

"The principle of in pari delicto non oritur actio denies all recovery to the guilty parties inter se.
It applies to cases where the nullity arises from the illegality of the consideration orthe purpose
of the contract. When two persons are equally at fault, the law does not relieve them. The
exception to this general rule is when the principle is invoked with respect to inexistent
contracts."65 (emphasis supplied; citations omitted)

Clearly, no void or inexistent contract is hereinat issue, hence, the Court’s disagreement with the
CA’s invocation of Yu Guanin this respect.

As for the subject backfilling touching the perimeter fence of the Uy property, records show that
the said fence was not designed to act as a retaining wall66 but merely to withhold windload and
its own load.67 Both the RTC and the CA found the subject backfilling to have added pressure on
the fence,68 consequently endangering the safety of the occupants of the Uy property, especially
considering the higher elevation of the Rana property. With these findings, the Court thus agrees
with the courts a quothat there is a need for Linda Rana to construct a retaining wall69 which
would bear the weight and pressure of the filling materials introduced on their property. The
Court, however, observed that neither the RTC nor the CA specified in their respective decisions
the backfilled areas which would require the retaining wall. Due to the technicality of the matter,
and considering that the due authenticity and genuineness of the findings/recommendation70 of
the OBO and the accompanying sketch71 thereto were not specifically denied by Sps. Rana,72 the
required retaining wall shall beconstructed in accordance with the said sketch which showed the
area backfilled.

B. Civil Case No. CEB-21296

For Recovery of Property.

Now, with respect to Civil Case No. CEB-21296, the Court finds that the CA erred in affirming
the RTC’s dismissal thereof considering that it was determined that Sps. Uy had actually
encroached upon the Rana property to the extent of 2 sq. m.

Settled is the rule that in order that an action for the recovery of property may prosper, the party
prosecuting the same need only prove the identity of the thing and his ownership thereof.73 In the
present cases, the Report74 of the court-appointed commissioner, Atty. Pintor, who conducted a
relocation survey75 of the Rana and Uy properties identified and delineated the boundaries of the
two properties and showed that Sps. Uy’s perimeter fence intruded on 2 sq. m.of the Rana
property.76 Both the RTC and the CA relied upon the said report; thus, absent any competent
showing that the said finding was erroneous, the Court sees no reason to deviate from the
conclusions reached by the courts a quo. Having sufficiently proven their claim, Sps. Rana are,
therefore entitled to the return of the 2 sq.m. encroached portion. Corollary thereto, compliance
by Linda Rana with the directive in Civil Case No. CEB-20893to build a retaining wall on their
property shall be held in abeyance pending return of the encroached portion.

C. Claims Common to Both Civil Case No. CEB-20893 and Civil Case No. CEB-21296:
Malicious Prosecution of Both Cases, Moral and Exemplary Damages, Attorney’s Fees, and
Litigation

Expenses.
As a final matter, the Court resolvesthe claims common to both Civil Case No. CEB-20893 and
Civil Case No. CEB-21296, particularly those on malicious prosecution, as well asmoral and
exemplary damages, attorney’s fees, and litigation expenses.

As the Court sees it, the filing bythe parties of their respective complaints against each other was
notclearly and convincingly shown to have been precipitated by any maliceor bad faith,
sufficient enough to warrant the payment of damages in favor of either party. As correctly
pointed out by the CA, malicious prosecution, both in criminal and civil cases, requires the
presence oftwo (2) elements, namely: (a) malice; and (b) absence of probable cause. Moreover,
there must be proof that the prosecution was prompted by a sinister design to vex and humiliate a
person; and that it was initiated deliberately knowing that the charge was false and
baseless.77 Hence, the mere filing of a suitwhich subsequently turns out to be unsuccessful does
not render a person liable for malicious prosecution, for the law could not have meant toimpose a
penalty on the right to litigate.78 As the aforementioned elements were not duly proven, the
claims for malicious prosecution are hereby denied.

With respect to the claims for moral damages, although the Court found the parties to have
sustained nominal damages as a result of the other parties’ acts, an award of moral damages
would nonetheless be improper in this case. Article 2217 of the Civil Code states that "[m]oral
damages include physical suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though
incapable of pecuniary computation, moral damages may be recovered if they are the proximate
result of the defendant's wrongful act for omission." Corollary thereto, Article 2219 of the same
code (Article 2219) states that "[m]oral damages may be recovered in the following and
analogous cases: (1) A criminal offense resulting in physical injuries; (2) Quasi-delicts causing
physical injuries; (3) Seduction, abduction, rape, or other lascivious acts; (4) Adultery or
concubinage; (5) Illegal or arbitrary detention or arrest; (6) Illegal search; (7) Libel, slander or
any other form of defamation; (8) Malicious prosecution; (9) Acts mentioned in Article 309;
[and] (10) Actsand actions referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34, and 35."

Here, it was not proven thatthe damage caused by (a) Sps. Rana against Wong, et al., arising
from the elevation and cementing of the subject portion and the subject backfilling, and (b) Sps.
Uy against Sps. Rana, by virtue of their 2 sq. m. encroachment, could be characterized as a form
of or had resulted in physical suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social humiliation, or any other similar injury.
Neitherwas it convincingly shown that the present controversies fall within the class of cases
enumerated under Article 2219. Therefore, no moral damages should be awarded.

Similarly, the Court deems that an award of exemplary damages would be inappropriate since
these damages are imposed only "by way of example or correction for the publicgood, in
addition to the moral, temperate, liquidated or compensatory damages."79 Bluntly placed, the
Court does not view the present matters of such caliber. Hence, there is no reason to grant the
parties’ claims for the same.

Lastly, considering that neither of the parties was able to successfully prove (a) their claims for
malicious prosecution,80 (b) their entitlement to moral and exemplary damages,81 and (c) the
attendance of any of the circumstances under Article 220882 of the Civil Code, their respective
claims for attorney’s fees and litigation expensesagainst each other are also denied.
WHEREFORE, the Decision dated July 13, 2005 and the Resolution dated June 18, 2010 in CA-
G.R. CV No. 78463 are SET ASIDE and a new one is entered as follows:

In Civil Case No. CEB-20893:

(a) The awards of damages in favor of each party are OFFSETagainst each other as
herein discussed;

(b) Linda Rana is hereby ORDEREDto build, at her own expense, a retaining wall on the
property covered by TCT No. 124095 in accordance with the sketch of the Office of the
Building Official of Cebu City attached to the records of the case, subject to the condition
as shall be hereunder set; and

(c) All other claims and counterclaims are DISMISSED for lack of legal and factual
bases.

In Civil Case No. CEB-21296:

(a) Spouses Rosario and Wilson Uy are DIRECTED to return to Linda Rana the 2-square
meter encroached portion as reflected in the relocation survey conducted by court-
appointed commissioner Atty. Reuel T. Pintor, after which Linda Rana shall be
OBLIGED to build the retaining wall as directed by the Court; and

(b) All other claims and counterclaims are DISMISSED for lack of merit.

SO ORDERED.

(3) G.R. No. L-62050 November 25, 1983

JOSE "PEPITO" TIMONER, petitioner,

vs.
THE PEOPLE OF THE PHILIPPINES AND THE HONORABLE COURT OF
APPEALS, IV DIVISION, respondents.

Marciano C. Dating, Jr. and Jose & Fuentebella for petitioner.

The Solicitor General for respondents.

ESCOLIN, J.:ñé+.£ªwph!1

Petition for review of the affirmance in toto by the Court of Appeals, now the Intermediate
Appellate Court, of the judgment of conviction handed down by the then Municipal Court of
Daet, Camarines Norte, in Criminal Case No. 4281, entitled People of the Philippines vs. Jose
Timoner, finding petitioner guilty of the crime of grave coercion, as follows: têñ.£îhqwâ£

WHEREFORE this Court finds the accused JOSE 'PEPITO' TIMONER guilty
beyond reasonable doubt of the crime of Grave Coercion as penalized under Art.
286 in the Revised Penal Code, and hereby sentences the said accused pursuant to
the provision of Rule 64, Par. 3, to suffer SIX MONTHS OF IMPRISONMENT
OF ARRESTO MAYOR IN ITS MAXIMUM PERIOD, to pay a fine of P300.00
and to pay the offended party in the amount of P5,000.00 as damages, without
subsidiary liability in case of insolvency. The other accused SAMUEL MORENA
and ERNESTO QUIBRAL are hereby ordered ACQUITTED.

The salient facts are not disputed. At about 10:00 in the evening of December 13, 1971,
petitioner, then Mayor of Daet, Camarines Norte, accompanied by two uniformed policemen,
Samuel Morena and Ernesto Quibral, and six laborers, arrived in front of the stalls along
Maharlika highway, the main thoroughfare of the same town. Upon orders of petitioner, these
laborers proceeded to nail together rough lumber slabs to fence off the stalls which protruded
into the sidewalk of the Maharlika highway. Among the structures thus barricaded were the
barbershop of Pascual Dayaon, the complaining witness and the store belonging to one Lourdes
Pia-Rebustillos. These establishments had been recommended for closure by the Municipal
Health Officer, Dra. Alegre, for non-compliance with certain health and sanitation requirements.

Thereafter, petitioner filed a complaint in the Court of First Instance of Camarines Norte against
Lourdes Pia-Rebustillos and others for judicial abatement of their stalls. The complaint, docketed
as Civil Case No. 2257, alleged that these stalls constituted public nuisances as well as
nuisances per se. Dayaon was never able to reopen his barbershop business.

Subsequently, petitioner and the two policemen, Morena and Quibral, were charged with the
offense of grave coercion before the Municipal Court of Daet. As already noted, the said court
exonerated the two policemen, but convicted petitioner of the crime charged as principal by
inducement.

On appeal, the Court of Appeals affirmed in full the judgment of the trial court. Hence, the
present recourse.

Petitioner contends that the sealing off of complainant Dayaon's barbershop was done in
abatement of a public nuisance and, therefore, under lawful authority.
We find merit in this contention. Unquestionably, the barbershop in question did constitute a
public nuisance as defined under Article Nos. 694 and 695 of the Civil Code, to wit: têñ.£îhqwâ£

ART. 694. A nuisance is any act, omission, establishment, business, condition of

property, or anything else which:

(1) Injures or endangers the health or safety of others; or

(2) Annoys or offends the senses; or

(3) Shocks, defies or disregards decency or morality; or

(4) Obstructs or interferes with the free passage of any public highway or street,
or any body of water; or

(5) Hinders or impairs the use of property.

ART. 695. Nuisance is either public or private. A public nuisance affects a

community or neighborhood or any considerable number of persons, although the
extent of the annoyance, danger or damage upon individuals may be unequal A
private nuisance is one that is not included in the foregoing definition.

The barbershop occupied a portion of the sidewalk of the poblacion's main thoroughfare and had
been recommended for closure by the Municipal Health Officer. In fact, the Court of First
Instance of Camarines Norte, in its decision in Civil Case No. 2257, declared said barbershop as
a nuisance per-se. Thus: têñ.£îhqwâ£

Under the facts of the case, as well as the law in point, there is no semblance of
any legality or right that exists in favor of the defendants to build a stall and
conduct their business in a sidewalk, especially in a highway where it does not
only constitute a menace to the health of the general public passing through the
street and also of the unsanitary condition that is bred therein as well as the
unsightly and ugly structures in the said place. Moreover, even if it is claimed and
pretended that there was a license, permit or toleration of the defendants'
makeshift store and living quarters for a number of years does not lend legality to
an act which is a nuisance per se. Such nuisance affects the community or
neighborhood or any considerable number of persons and the general public
which posed a danger to the people in general passing and using that place, for in
addition, this is an annoyance to the public by the invasion of its rights — the fact
that it is in a public place and annoying to all who come within its sphere
[Baltazar vs. Carolina Midland, Ry, Co., 54 S.C. 242, 32 SB 258, cited in 11
Tolentino's Civil Code of the Philippines, p. 375; Kapisanan Lingkod ng Bayan,
Inc. vs. Lacson, CA-G.R. No. 27260R, March 25, 1964; 61 O.G. 2487].

xxx xxx xxx

 ... IN VIEW OF THE FOREGOING, the Court hereby declares that the structures
subject of this complaint as well as those occupied by the impleaded defendants
are nuisances per se and therefore orders the defendants to demolish the stall and
vacate the premises immediately ...

But even without this judicial pronouncement, petitioner could not have been faulted for having
fenced off said barbershop. Paragraph 3, Article 699 of the Civil Code authorizes the abatement
of a public nuisance without judicial proceedings. têñ.£îhqwâ£

ART. 699. The remedies against a public nuisance are:

[l] A prosecution under the Penal Code or any local ordinance; or

[2] A civil action; or

[3] Abatement, without judicial proceedings.

In the case at bar, petitioner, as mayor of the town, merely implemented the aforesaid
recommendation of the Municipal Health Officer. Having then acted in good faith in the
performance of his duty, petitioner incurred no criminal liability.

Grave coercion is committed when "a person who, without authority of law, shall by means of
violence, prevent another from doing something not prohibited by law or compel to do
something against his will, either it be right or wrong." 1 The three elements of grave coercion
are: [1] that any person be prevented by another from doing something not prohibited by law, or
compelled to do something against his will, be it right or wrong; [2] that the prevention or
compulsion be effected by violence, either by material force or such display of it as would
produce intimidation and control the will of the offended party, and [3] that the person who
restrained the will and liberty of another had no right to do so, or, in other words, that the
restraint was not made under authority of law or in the exercise of a lawful right. 2

The third element being absent in the case at bar, petitioner cannot be held guilty of grave
coercion.

WHEREFORE, the decision of the Court of Appeals in CA G.R. No. 19534-CR, is hereby set
aside and petitioner is acquitted of the crime charged. Costs de oficio.

SO ORDERED.1äwphï1.ñët

(4) G.R. No. 184478               March 21, 2012

JAIME S. PEREZ, both in his personal and official capacity as Chief, Marikina Demolition
Office, Petitioner,
vs.
SPOUSES FORTUNITO L. MADRONA and YOLANDA B. PANTE, Respondents.

DECISION

VILLARAMA, JR., J.:

Before this Court is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil
Procedure, as amended, seeking to set aside the March 31, 2008 Decision1 and September 10,
2008 Resolution2 of the Court of Appeals (CA) in CA-G.R. CV. No. 83675. The CA affirmed in
toto the Decision3 of the Regional Trial Court (RTC) of Marikina City, Branch 192 granting
respondents’ prayer for injunction against petitioner.

The antecedents follow:

Respondent-spouses Fortunito Madrona and Yolanda B. Pante are registered owners of a

residential property located in Lot 22, Block 5, France Street corner Italy Street, Greenheights
Subdivision, Phase II, Marikina City and covered by Transfer Certificate of Title No. 1693654 of
the Registry of Deeds of Marikina. In 1989, respondents built their house thereon and enclosed it
with a concrete fence and steel gate.

In 1999, respondents received the following letter dated May 25, 1999 from petitioner Jaime S.
Perez, Chief of the Marikina Demolition Office:

Owner Judge F.L. Madrona

Lot 22 B. 5 Phase II
Green Heights[, Concepcion,] Marikina City

G./ Gng. F.L. Madrona[:]

Ito po ay may kinalaman sa bahay/istruktura na inyong itinayo sa (naturang lugar), Marikina,

Kalakhang Maynila.

Bakod umusli sa Bangketa

Ang naturang pagtatayo ng bahay/istruktura ay isang paglabag sa umiiral na batas/programa na

ipatutupad ng Pamahalaang Bayan ng Marikina na nauukol sa:

[ü] PD 1096
(National Building Code of the Philippines)

[ ] PD 772
(Anti-Squatting Law)
[ü] Programa sa Kalinisan at Disiplina sa Bangketa

[ ] RA 7279
(Urban Development and Housing Act of 1992)

[ ] PD 296
(Encroachment on rivers, esteros, drainage channels and other waterways)

[ü] RA 917 as amended by Section 23, PD. No. 17, DO No. 4 Series of 1987

(Illegally occupied/constructed improvements within the road right-of-way)

Dahil po dito, kayo ay binibigyan ng taning na Pitong (7) araw simula sa pagkatanggap ng sulat
na ito para kusang alisin ang inyong istruktura. Ang hindi ninyo pagsunod sa ipinag-uutos na ito
ay magbubunsod sa amin upang gumawa ng kaukulang hakbang na naa[a]yon sa itinatadhana ng
Batas.

Sa inyong kaalaman, panuntuan at pagtalima.

Lubos na gumagalang,

(Sgd.)
JAIME S. PEREZ
Tagapamahala
Marikina Demolition Office5

As response, respondent Madrona sent petitioner a three-page letter6 dated June 8, 1999 stating
that the May 25, 1999 letter (1) contained an accusation libelous in nature as it is condemning
him and his property without due process; (2) has no basis and authority since there is no court
order authorizing him to demolish their structure; (3) cited legal bases which do not expressly
give petitioner authority to demolish; and (4) contained a false accusation since their fence did
not in fact extend to the sidewalk.

On June 9, 1999, respondents received a letter7 from petitioner requesting them to provide his
office a copy of the relocation survey on the subject property. Respondents, however, did not
oblige because it was as if petitioner was fishing evidence from them.

More than a year later or on February 28, 2001, petitioner sent another letter8 with the same
contents as the May 25, 1999 letter but this time giving respondents ten days from receipt thereof
to remove the structure allegedly protruding to the sidewalk. This prompted respondents to file a
complaint9 for injunction before the Marikina City RTC on March 12, 2001.

In respondents’ injunction complaint, they alleged that (1) petitioner’s letters made it appear that
their fence was encroaching on the sidewalk and directed them to remove it, otherwise he would
take the corresponding action; (2) petitioner’s threat of action would be damaging and adverse to
respondents and appears real, earnest and imminent; (3) the removal of their fence, which would
include the main gate, would certainly expose the premises and its occupants to intruders or third
persons; (4) petitioner has no legal authority to demolish structures in private properties and the
laws he cited in his letters do not give him any authority to do so; (5) respondents enjoy the legal
presumption of rightful possession of every inch of their property; (6) if petitioner accuses them
of erroneous possession, he should so prove only through the proper forum which is the courts;
(7) their fence is beside the sidewalk and the land on which it stands has never been the subject
of acquisition either by negotiation or expropriation from the government; (8) petitioner’s
intended act of demolition even in the guise of a road right of way has no factual or legal basis
since there is no existing infrastructure project of the national government or Marikina City
government; and (9) petitioner’s letter and his intended act of demolition are malicious,
unfounded, meant only to harass respondents in gross violation of their rights and in excess and
outside the scope of his authority, thereby rendering him accountable both in his personal and
official capacity.

Respondents likewise sought the issuance of a temporary restraining order (TRO) and a writ of
preliminary injunction to enjoin petitioner and all persons acting under him from doing any act
of demolition on their property and that after trial, the injunction be made permanent. They also
prayed for moral and exemplary damages and attorney’s fees.

On March 14, 2001, petitioner was served the corresponding summons.10

On March 16, 2001, the RTC issued a TRO against petitioner.11

On March 29, 2001, petitioner filed an Urgent Ex Parte Motion for Extension to File
Answer12 until April 13, 2001. It appears however that petitioner’s counsel failed to file an
Answer within the extended period requested. Thus, on motion13 of respondents, petitioner was
declared in default on July 13, 2001.14

On July 25, 2001, petitioner filed a Motion to Lift Order of Default (with Ex-Parte Motion to
Admit Answer and Notice Entry of Appearance).15 According to petitioner’s new counsel, an
answer was not filed due to the former counsel’s voluminous work load as lone lawyer in the
City Legal Office.

On December 10, 2001, the RTC issued an Order16 denying the motion to lift the order of default.
Aside from finding that the motion failed to include a notice of hearing, the RTC also held that
the alleged cause of delay is not excusable as voluminous work load of the counsel cannot justify
the disregard of court processes or failure to abide by the period fixed by the rules and since the
delay consisted not only a few days but over a hundred and three days. Petitioner moved to
reconsider the order but the same was denied by the RTC in its March 6, 2002 Order.17

Petitioner thereafter filed a petition for certiorari18 before the CA assailing the default order.
Thus, on April 18, 2002, the RTC issued an order suspending the proceedings of the injunction
case "until such time when the Petition for Certiorari shall have been disposed of with finality."19
On August 20, 2002, the CA rendered a decision20 dismissing the petition for certiorari for lack
of merit. Petitioner moved to reconsider the appellate court’s decision, but the motion was denied
by Resolution21 dated January 30, 2003.

On September 15, 2003, the RTC issued an Order22 dismissing the injunction complaint without
prejudice. It held that respondents "have not instituted any action before th[e] Court showing that
they are still interested in further prosecuting th[e] case" and "[i]n accordance with Section 3,
Rule 17 of the Rules of Court, the Court is constrained to dismiss the complaint for failure of
[respondents] to prosecute their complaint for an unreasonable length of time." However, upon
motion of respondents, the dismissal order was set aside and the complaint was reinstated by
Order23 dated December 3, 2003. The RTC agreed with the observation of respondents that it was
the court which suspended the proceedings in the injunction case pending final disposition of the
petition for certiorari before the CA, and when the RTC issued the dismissal order, there was yet
no entry of judgment from the CA and so it cannot be said that the petition was already
"disposed of with finality." Respondents were then allowed to present their evidence ex parte
before the branch clerk of court.

On July 27, 2004, the RTC rendered a Decision24 in favor of respondents. The fallo of the RTC
decision reads:

WHEREFORE, Judgment is hereby rendered in favor of the plaintiffs. As prayed for, defendant
Jaime S. Perez, Chief of the Demolition Office of Marikina City, or any person acting for and in
his behalf as well as the successors to his office, is permanently enjoined from performing any
act which would tend to destroy or demolish the perimeter fence and steel gate of the plaintiffs’
property situated at Lot 22, Block 5, France Street corner Italy Street, Phase II, Greenheights
Subdivision, Concepcion, Marikina City.

Defendant is further ordered to pay the amount of Twenty Thousand (P20,000.00) Pesos as
attorney’s fees and Five Thousand (P5,000.00) Pesos for the costs of suit.25

The RTC held that respondents, being lawful owners of the subject property, are entitled to the
peaceful and open possession of every inch of their property and petitioner’s threat to demolish
the concrete fence around their property is tantamount to a violation of their rights as property
owners who are entitled to protection under the Constitution and laws. The RTC also ruled that
there is no showing that respondents’ fence is a nuisance per se and presents an immediate
danger to the community’s welfare, nor is there basis for petitioner’s claim that the fence has
encroached on the sidewalk as to justify its summary demolition.

Petitioner appealed the RTC decision to the CA. On March 31, 2008, the appellate court
rendered the assailed decision affirming the RTC decision.

Hence this petition based on the following grounds:

I.
 THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN AFFIRMING
THE ACTION OF THE LOWER COURT IN REINSTATING/REVIVING THE
COMPLAINT FILED BY THE RESPONDENTS.

II.

THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN AFFIRMING

THE RULING OF THE LOWER COURT THAT THE RESPONDENTS ARE
ENTITLED TO PERMANENT INJUNCTION, THEREBY RESTRAINING THE
PETITIONER OR ANYONE ACTING FOR AND ON HIS BEHALF FROM
CARRYING OUT THE THREATENED DEMOLITION OF THEIR PERIMETER
FENCE AND STEEL GATE.

III.

THE COURT OF APPEALS COMMITTED A REVERSIBLE [ERROR] IN

AFFIRMING THE RULING OF THE LOWER COURT ORDERING THE
PETITIONER TO PAY THE RESPONDENTS THE AMOUNTS OF TWENTY
THOUSAND PESOS (P20,000.00) AS ATTORNEY’S FEES AND FIVE THOUSAND
PESOS (P5,000.00) AS COSTS OF SUIT.26

Essentially, the issues to be resolved in the instant case are: (1) Did the trial court err in
reinstating the complaint of respondents? (2) Are the requisites for the issuance of a writ of
injunction present? and (3) Is petitioner liable to pay attorney’s fees and costs of suit?

Petitioner argues that there was express admission of negligence by respondents and therefore,
reinstatement of their dismissed complaint was not justified.

We disagree.

A perusal of the respondents’ motion for reconsideration27 of the order of dismissal reveals that
there was no admission of negligence by respondents, either express or implied. Respondents
only contended that (1) they were under the impression that it would be the RTC which would
issue the order to continue the proceedings once it considers that the petition before the CA had
already been disposed of with finality, and (2) their counsel’s records do not show that the CA
had already issued an entry of judgment at the time the dismissal order was issued. They also
only stated that they followed up with the CA the issuance of the entry of judgment but they
were just told to wait for its delivery by mail. Petitioner’s imputation that respondents expressly
admitted negligence is therefore clearly unfounded.

Additionally, as correctly found by both the RTC and the CA, it did not appear that respondent
lost interest in prosecuting their case nor was their counsel negligent in handling it. Accordingly,
there was no basis for the dismissal order and reinstatement of respondents’ complaint was
justified.
As to the propriety of the issuance of the writ of injunction, petitioner claims that the requisites
therefor are not present in the instant case. Petitioner contends that service of a mere notice
cannot be construed as an invasion of a right and only presupposes the giving of an opportunity
to be heard before any action could be taken. He also claims that it is clear from the records of
the case that respondents’ concrete fence was constructed on a part of the sidewalk in gross
violation of existing laws and ordinance and thus, they do not have absolute right over the same.
According to petitioner, the encroachment is clearly apparent in the Sketch Plan of the
government geodetic engineer as compared to the Location Plan attached to respondents’
complaint. He likewise contends that the clearing of the sidewalks is an infrastructure project of
the Marikina City Government and cannot be restrained by the courts as provided in Presidential
Decree No. 1818.28 Lastly, petitioner points out that the trial court should not have merely relied
on the testimonies of respondents alleging that his men were already in the subdivision and
destroying properties on other streets to prove that there was urgent necessity for the issuance of
the writ.

We disagree.

For injunction to issue, two requisites must concur: first, there must be a right to be protected and
second, the acts against which the injunction is to be directed are violative of said right.29 Here,
the two requisites are clearly present: there is a right to be protected, that is, respondents’ right
over their concrete fence which cannot be removed without due process; and the act, the
summary demolition of the concrete fence, against which the injunction is directed, would
violate said right.

If petitioner indeed found respondents’ fence to have encroached on the sidewalk, his remedy is
not to demolish the same summarily after respondents failed to heed his request to remove it.
Instead, he should go to court and prove respondents’ supposed violations in the construction of
the concrete fence. Indeed, unless a thing is a nuisance per se, it may not be abated summarily
without judicial intervention.30 Our ruling in Lucena Grand Central Terminal, Inc. v. JAC Liner,
Inc., on the need for judicial intervention when the nuisance is not a nuisance per se, is well
worth mentioning. In said case, we ruled:

Respondents cannot seek cover under the general welfare clause authorizing the abatement of
nuisances without judicial proceedings. That tenet applies to a nuisance per se, or one which
affects the immediate safety of persons and property and may be summarily abated under the
undefined law of necessity (Monteverde v. Generoso, 52 Phil. 123 [1982]). The storage of copra
in the quonset building is a legitimate business. By its nature, it can not be said to be injurious to
rights of property, of health or of comfort of the community. If it be a nuisance per accidens it
may be so proven in a hearing conducted for that purpose. It is not per se a nuisance warranting
its summary abatement without judicial intervention. [Underscoring supplied.]

In Pampanga Bus Co., Inc. v. Municipality of Tarlac where the appellant-municipality similarly

argued that the terminal involved therein is a nuisance that may be abated by the Municipal
Council via an ordinance, this Court held: "Suffice it to say that in the abatement of nuisances
the provisions of the Civil Code (Articles 694-707) must be observed and followed. This
appellant failed to do."31
Respondents’ fence is not a nuisance per se. By its nature, it is not injurious to the health or
comfort of the community. It was built primarily to secure the property of respondents and
prevent intruders from entering it. And as correctly pointed out by respondents, the sidewalk still
exists. If petitioner believes that respondents’ fence indeed encroaches on the sidewalk, it may be
so proven in a hearing conducted for that purpose. Not being a nuisance per se, but at most a
nuisance per accidens, its summary abatement without judicial intervention is unwarranted.

Regarding the third issue, petitioner argues that he was just performing his duties and as public
officer, he is entitled to the presumption of regularity in the performance of his official functions.
Unless there is clear proof that he acted beyond his authority or in evident malice or bad faith, he
contends that he cannot be held liable for attorney’s fees and costs of suit.

Respondents, for their part, counter that the presumption of regularity has been negated by the
fact that despite their reply to the first notice, which put petitioner on notice that what he was
doing was ultra vires, he still reiterated his earlier demand and threat of demolition. Having been
warned by respondents that his acts were in fact violations of law, petitioner should have been
more circumspect in his actions and should have pursued the proper remedies that were more in
consonance with the dictates of due process. Respondents further pray for moral damages for the
serious anxieties and sleepless nights they suffered and exemplary damages to serve as an
example to other public officials that they should be more circumspect in the performance of
their duties.

We agree with respondents.

As respondents were forced to file a case against petitioner to enjoin the impending demolition
of their property, the award of attorney’s fees and costs of suit is justified. Clearly, respondents
wanted to settle the problem on their alleged encroachment without resorting to court processes
when they replied by letter after receiving petitioner’s first notice. Petitioner, however, instead of
considering the points raised in respondents’ reply-letter, required them to submit the relocation
plan as if he wants respondents to prove that they are not encroaching on the sidewalk even if it
was he who made the accusation of violation in the first place. And when he did not get the
"proof" he was requiring from respondents, he again sent a notice with a threat of summary
demolition. This gave respondents no other choice but to file an injunction complaint against
petitioner to protect their rights.

With regard to respondents’ claim for moral damages, this Court rules that they are entitled
thereto in the amount of ₱10,000.00 pursuant to Article 221732 of the Civil Code. As testified to
by respondents, they suffered anxiety and sleepless nights since they were worried what would
happen to their children who were left by themselves in their Marikina residence while they were
in Ormoc City if petitioner would make real his threat of demolition on their fence.1âwphi1

We likewise hold that respondents are entitled to exemplary damages in the amount of ₱5,000.00
to serve as an example to other public officials that they should be more circumspect in the
performance of their duties.
WHEREFORE, the March 31, 2008 Decision and September 10, 2008 Resolution of the Court of
Appeals in CA-G.R. CV. No. 83675 are AFFIRMED with MODIFICATION. Petitioner Jaime S.
Perez, Chief of the Demolition Office of Marikina City is ORDERED to pay respondent
Spouses Fortunito L. Madrona and Yolanda B. Pante moral damages in the amount of
₱10,000.00 and exemplary damages in the amount of ₱5,000.00.

SO ORDERED.

(5) G.R. No. 223862

HON. MYLYN P. CAYABYAB, in her capacity as the Municipal Mayor of Lubao,

Pampanga, and ANGELITO L. DAVID, in his capacity as the Barangay Chairman of
Prado Siongco, Lubao, Pampanga, represented by their Attorney-in-Fact, EMMANUEL
SANTOS, Petitioners
vs.
JAIME C. DIMSON, represented by his Attorneys-in-Fact, CARMELA R. DIMSON and
IRENE R. DIMSON, Respondent

DECISION

PERLAS-BERNABE, J.:

Before the Court is a petition for review on certiorari1 assailing the Decision2 dated December
18, 2015 and the Resolution3 dated March 21, 2016 of the Court of Appeals (CA) in CA-G.R. SP
No. 138699, which directed the Regional Trial Court (RTC) of Guagua, Pampanga, Branch 51 to
issue a temporary restraining order (TRO) against the Cease and Desist Order4 (CDO) and the
Closure Order5 of petitioner Mayor Mylyn P. Cayabyab (Mayor Cayabyab) upon posting of a
bond to be determined by the RTC.

The Facts

Respondent Jaime C. Dimson (Dimson) is the owner of a poultry farm located in Barangay Prado
Siongco, Lubao, Pampanga (subject poultry farm) which had been operating for more than 30
years. In January 2014, he applied for a barangay clearance with the office of petitioner Prado
Siongco Barangay Chairman Angelito L. David (Chairman David), preparatory to his application
for a business permit, and was informed that the issuance thereof is conditioned on a prior ocular
inspection of the subject poultry farm by the Office of the Mayor of Lubao, Pampanga, Mayor
Cayabyab. However, despite the conduct of an ocular inspection, Chairman David refused to
issue the clearance; hence, no business permit was issued in favor ofDimson.6

On April 29, 2014, Dimson received7 a CDO8 dated April 28, 2014 from the Office of Mayor
Cayabyab, directing him to desist from further conducting any poultry farming on the grounds
of: (a) lack of a Barangay Business Permit and a Mayor's Permit; (b) lack of a pollution control
officer; (c) foul odor being emitted by the subject poultry farm that offended passing motorists,
and for which complaints were filed by those affected; and (d) the said poultry farm being
situated only five (5) meters away from the national road, in violation of the 500-meter minimum
distance requirement under the Code of Sanitation of the Philippines (Sanitation Code).9

In his motion for reconsideration,10 Dimson denied that there was foul odor coming from his
poultry farm, at the same time, manifesting that he had already employed a pollution control
officer.11 Said motion was denied by Lubao Acting Mayor Robertito V. Diaz in a letter12 dated
May 20, 2014. Dissatisfied, Dimson filed another motion for reconsideration,13 contending that
the subject poultry farm is not a nuisance per se that can be abated by the local government
without the intervention of the courts.14 The motion was denied by Mayor Cayabyab in a
letter15 dated June 13, 2014, which clarified that the CDO was primarily issued on the lack of the
requisite Barangay Business Permit and Mayor's Permit. Thereafter, a Closure Order16 dated June
20, 2014 was issued by Mayor Cayabyab effectively shutting down the subject poultry farm.17

The RTC Proceedings

Aggrieved, Dimson filed a Petition for Certiorari, Mandamus, Prohibition (With Application for

Preliminary Mandatory Injunction)18 and prayed for the issuance of a TRO against Mayor
Cayabyab and Chairman David (petitioners) before the RTC of Guagua, Pampanga, docketed as
Sp. Civil Case No. G-14-685, which was raffled to Branch 52. He maintained that his poultry
farm is not a nuisance per se that can be summarily abated; hence, respondents grossly abused
their discretion when they withheld his permits, and issued the CDO and Closure Order.19

In their defense,20 respondents averred that: (a) the non-issuance of the Barangay Business
Permit was based on valid grounds as there were written complaints against the operation of the
poultry farm, and a public hearing was conducted thereon; (b) the non-issuance of the Mayor's
Permit was justified considering the lack of a Barangay Business Permit; (c) the issuance of the
CDO and Closure Order was justified and in accordance with due process; and (d) the poultry
farm violated not only the Sanitation Code but also the Comprehensive Land Use Plan and
Zoning Ordinance requiring poultry farms to be 500 meters away from the major roads and/or
highways.21

In an Order22 dated October 2, 2014, the RTC denied Dimson's application for TRO for failure to
establish a clear and unmistakable right to the said issuance and to show that he will suffer
irreparable injury. Moreover, the RTC opined that the issue of whether or not petitioners have
the right to order the closure of the subject farm is best threshed out in the main case. It likewise
ruled that the TRO can no longer serve its purpose as the act sought to be restrained was
already fait accompli, since a notice of closure was already posted on the concrete wall of the
subject poultry farm effective September 29, 2014.23

Due to the Presiding Judge's voluntary inhibition in the case, the same was re-raffled to Branch
51 of the same RTC.24

Dimson filed a motion for reconsideration which was, however, denied in an Order25 dated
December 22, 2014. Unperturbed, Dimson filed a petition for certiorari26 before the CA, seeking
to set aside the Orders dated October 2, 2014 and December 22, 2014, docketed as CA-G.R. SP
No. 138699.27

The CA Ruling

In a Decision28 dated December 18, 2015, the CA granted the petition, and directed the RTC to
issue a TRO against the implementation of the CDO and the Closure Order of Mayor
Cayabyab.29

The CA ruled that the RTC gravely abused its discretion in denying Dimson's application for a
TRO which was essentially rooted on a determination of whether the subject poultry farm is a
nuisance per se  or a nuisance per accidens. Considering that poultry farming is a legitimate
business, by its nature alone, the same can only be a nuisance per accidens if in the course of its
operations, it should become objectionable to such extent that it offends some laws, public
policy, or should become a danger to public health and welfare. It may only be abated on the
strength of judicial fiat.30

Consequently, the CA held that Dimson was able to establish the concurrence of the requisites
for the issuance of injunctive relief, to wit: (a) he has the right to engage in poultry farming; (b)
the issuance of the CDO and the closure order would work injustice to him; and (c) the issuance
of the said orders which amounted to an abatement of his poultry enterprise without the required
judicial intervention violates his rights, which cannot be justified under the general welfare
clause.31

The CA likewise held that the issuance of a TRO cannot be denied on the ground of fait
accompli  since the acts complained of is a continuing prohibition on an otherwise legitimate
business. Hence, Dimson could still resume his operations in the meantime, or until a final
decision on the merits of the main case is rendered by the RTC, and the status quo ante may still
be attained, and, thereafter, preserved.32

Dissatisfied, petitioners filed a motion for reconsideration,33 which was, however, denied in a

Resolution34 dated March 21, 2016; hence, the instant petition.1âwphi1

The Issue Before the Court

The essential issue for the Court's resolution is whether or not the CA committed reversible error
in directing the issuance of a TRO against the implementation of the CDO and the Closure Order
of Mayor Cayabyab.
 The Court's Ruling

The Court grants the petition.

"A writ of preliminary injunction and a TRO are injunctive reliefs and preservative remedies for
the protection of substantive rights and interests."35 To be entitled to the injunctive writ, the
applicant must show that: (a) there exists a clear and unmistakable right to be protected; (b) this
right is directly threatened by an act sought to be enjoined; (c) the invasion of the right is
material and substantial; and (d)  there is an urgent and paramount necessity for the writ to
prevent serious and irreparable damage. The grant or denial of an injunctive relief in a pending
case rests on the sound discretion of the court since the assessment and evaluation of evidence
towards that end involve findings of fact left for the conclusive determination of the said
court.36 "Hence, the exercise of judicial discretion by a court in injunctive matters must not be
interfered with, except when there is grave abuse of discretion."37 The burden is, thus, on the
applicant to show that there is meritorious ground for the issuance of a TRO in his favor,38 since
an application for injunctive relief is construed strictly against him.39 Here, Dimson failed to
sufficiently show the presence of the requisites to warrant the issuance of a TRO against the
CDO and the Closure Order of Mayor Cayabyab.

Preliminarily, it must be clarified that contrary to the CA's ruling,40 the grant or denial of
Dimson's application for TRO was not essentially rooted on a determination of whether the
subject poultry farm is a nuisance per se or a nuisance per accidens, but rather on whether or not
there was an ostensible showing of a sufficient justification for the issuance of the CDO and the
Closure Order. Corollary is the issue of whether or not there were prima facie valid reasons for
the withholding of the barangay clearance, which is a prerequisite to the renewal of Dimson's
business permit to operate.

A business permit must be secured from the municipal business permits and licensing office in
order for the business to legally operate in the locality.41 While poultry farming is admittedly a
legitimate business, it cannot operate without a business permit, which expires on the 31st of
December of every year and must be renewed before the end of January of the following year.

In the present case, there is no showing that Dimson filed any application for renewal of his
business permit to operate the subject poultry farm in 2014, apparently due to his failure to
secure the necessary barangay clearance which was not issued based on complaints of foul odor
being emitted by the said farm. Records show that complaints from neighboring barangays were
received by the office of Mayor Cayabyab bewailing the foul odor coming from the said
farm,42 which was confirmed upon ocular inspection conducted by the Health and Sanitation
Office of the Municipality of Lubao, Pampanga.43 Settled is the rule that acts of public officers
are presumed to be regular and valid, unless sufficiently shown to be otherwise.44 In this case,
Dimson was unable to refute the finding that foul odor is being emitted by his farm, having failed
to present the inspection report of the sanitary officer who purportedly did not note any such foul
smell in the fann.45 Not having passed the necessary sanitation standard, there was, therefore,
a prima facie valid reason for the withholding of the required barangay clearance, which is a
prerequisite to the renewal of Dimson's business permit to operate.
Having failed to apply for and secure the necessary business pennit to operate in 2014 on account
of his inability to obtain the required barangay clearance due to non-compliance with a
requirement standard,46 Dimson may not legally operate in the Municipality of Lubao,
Pampanga, thereby, warranting the issuance by Mayor Cayabyab of the CDO and the Closure
Order. Accordingly, no error, much less grave abuse of discretion can be ascribed on the RTC in
denying Dimson's application for the issuance of a TRO against the said orders. In the absence of
a business permit, Dimson has no clear legal right to resume his operations pending final
determination by the RTC of the merits of the main case for certiorari, mandamus, and
prohibition. A clear legal right means one clearly founded in or granted by law or is enforceable
as a matter of law, which is not extant in the present case. It is settled that the possibility of
irreparable damage without proof of an actual existing right is not a ground for the issuance of an
injunctive relief.47

In fine, it was grave error for the CA to order the issuance of a TRO against the implementation
of the CDO and the Closure Order of Mayor Cayabyab. A court may issue injunctive relief
against acts of public officers only when the applicant has made out a case of invalidity or
irregularity strong enough to overcome the presumption of validity or regularity, and has
established a clear legal right to the remedy sought,48 which was not shown here.

WHEREFORE, the petition is GRANTED. The Decision dated December 18, 2015 and the
Resolution dated March 21, 2016 of the Court of Appeals in CA-G.R. SP No. 138699 are
hereby SET ASIDE.

SO ORDERED.

(6) G.R. No. 166330               September 11, 2013

SMART COMMUNICATIONS, INC., Petitioner,

vs.
ARSENIO ALDECOA, JOSE B. TORRE, CONRADO U. PUA, GREGORIO V.
MANSANO, JERRY CORPUZ and ESTELITAACOSTA, Respondents.

DECISION

LEONARDO-DE CASTRO, J.:

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court filed
by petitioner Smart Communications, Inc., seeking the reversal of the Decision1 dated July 16,
2004 and Resolution2 dated December 9, 2004 of the Court of Appeals in CA-G.R. CV No.
71337. The appellate court (I) reversed and set aside the Order3 dated January 16, 2001 of the
Regional Trial Court (RTC), Branch 23, of Roxas, Isabela, in Civil Case No. Br. 23-632-2000
dismissing the complaint for abatement of nuisance and injunction against petitioner, and (2)
entered a new judgment declaring petitioner's cellular base station located in Barangay Vira,
Municipality of Roxas, Province of Isabela, a nuisance and ordering petitioner to cease and desist
from operating the said cellular base station.

The instant Petition arose from the following facts:

Petitioner is a domestic corporation engaged in the telecommunications business. On March 9,

2000, petitioner entered into a contract of lease4 with Florentino Sebastian in which the latter
agreed to lease to the former a piece of vacant lot, measuring around 300 square meters, located
in Barangay Vira, Roxas, Isabela (leased property).Petitioner, through its contractor, Allarilla
Construction, immediately constructed and installed a cellular base station on the leased
property. Inside the cellular base station is a communications tower, rising as high as150 feet,
with antennas and transmitters; as well as a power house open on three sides containing a
25KVA diesel power generator. Around and close to the cellular base station are houses,
hospitals, clinics, and establishments, including the properties of respondents Arsenio Aldecoa,
Jose B. Torre, Conrado U. Pua, Gregorio V. Mansano, Jerry Corpuz, and Estelita Acosta.

Respondents filed before the RTC on May 23, 2000 a Complaint against petitioner for abatement
of nuisance and injunction with prayer for temporary restraining order and writ of preliminary
injunction, docketed as Civil Case No. Br. 23-632-2000. Respondents alleged in their Complaint
that:

5. Petitioner’s communications tower is 150 feet in height equivalent to a 15-storey

building. It is a tripod-type tower made of tubular steel sections and the last section, to
which the huge and heavy antenna/transponder array will be attached, about to be bolted
on. Weight of the antenna mast is estimated at one (1) to three (3) tons, more or less. As
designed, the antenna/transponder array are held only by steel bolts without support of
guy wires;

6. This SMART tower is no different from the Mobiline tower constructed at Reina
Mercedes, Isabela which collapsed during a typhoon that hit Isabela in October 1998, an
incident which is of public knowledge;

7. With its structural design, SMART’s tower being constructed at Vira, Roxas, Isabela,
is weak, unstable, and infirm, susceptible to collapse like the Mobiline tower which fell
during a typhoon as earlier alleged, and its structural integrity being doubtful, and not
earthquake proof, this tower poses great danger to life and limb of persons as well as their
property, particularly, the respondents whose houses a but, or are near or within the
periphery of the communications tower;

8. This tower is powered by a standby generator that emitsnoxious and deleterious fumes,
not to mention the constant noise it produces, hence, a hazard to the health, not only of
the respondents, but the residents in the area as well;

9. When in operation, the tower would also pose danger to the life and health of
respondents and residents of the barangay, especially children, because of the ultra high
frequency (UHF) radio wave emissions it radiates. Only recently, Cable News Network
(CNN) reported that cell phones, with minimal radiated power, are dangerous to children,
so more it is for this communications tower, whose radiated power is thousands of times
more than that of a cellphone;

10. Worse, and in violation of law, petitioner constructed the tower without the necessary
public hearing, permit of the barangay, as well as that of the municipality, the
Environmental Compliance Certificate of the [Department of Environment and Natural
Resources (DENR)],construction permit, and other requirements of the National
Telecommunications Commission (NTC), and in fact committed fraud in its application
by forging an undated certification " that Barangay Vira does not interpose any objection
to the proposed construction of a 150 ft. tower & site development, " as this certification
was never issued byrespondent Jose Torre, the Barangay Captain of Vira, Roxas, Isabela,
and without the official barangay seal, attached as Annex "A" and Certification of the
Barangay Officer of the Day that no public hearing was held, attached as Annex "B"
made integral part hereof;

11. Not being armed with the requisite permits/authority as above mentioned, the
construction of the tower is illegal and should be abated;

12. Respondents and petitioner should not wait for the occurrence of death, injuries and
damage on account of this structure and judicial intervention is needed to ensure that such
event will not happen.5

Respondents thus prayed for the RTC to:

1. Issue a temporary restraining order and after due hearing to issue a writ of
preliminary mandatory injunction;

2. Render judgment:

- Making the writ of preliminary mandatory injunction permanent;

- Declaring the construction of the SMART tower as a nuisance per se or

per accidens;

- Ordering the abatement of this nuisance by ordering the removal and/or

demolition of petitioner’s communication tower;

- Condemning petitioner to pay respondents moral damages in the sum of

₱150,000.00 and exemplary damages in the sum of ₱30,000.00;

- Ordering petitioner to pay attorney’s fees in the amount of ₱20,000.00

plus trial honoraria of ₱1,000.00 for every appearance in Court;
 - Ordering petitioner to refund to respondents litigation expenses in the
amount of not less than ₱10,000.00;

3. And for such other reliefs as are just and equitable in the premises.6

In its Answer/Motion to Oppose Temporary Restraining Order with Compulsory

Counterclaim, petitioner raised the following special and affirmative defenses:

13. Petitioner through its contractor, Allarilla Construction(hereafter Allarilla),

applied for a Building Permit through the office of Municipal engineer Virgilio A.
Batucal on 13 April 2000 and subsequently received its approval 17 April 2000.
(a copy of the Official receipt and the Building Permit is hereto attached
respectively as Annex "A" and "B" and made an integral part hereof)

14. Petitioner, again through Allarilla applied for an Environmental Compliance

Certificate (ECC) the approval of which, at present, remains pending with the
DENR-[Environment Management Bureau (EMB)].

15. Petitioner should not in anyway be liable for fraud or bad faith as it had
painstakingly secured the consent of majority of the residents surrounding the
location of the Tower in order to seek their approval therewith. (a copy of the list
of residents who consented there to is attached herewith as Annex "C" and made
an integral part hereof)

16. Among the residents who signed the consent list secured by petitioner include
the respondent Jose B. Torre and a certain Linaflor Aldecoa, who is related to
respondent Arsenio Aldecoa.

17. Petitioner did not forge the Barangay Certification but actually secured the
consent of Barangay Captain Jose Torre through the efforts of Sangguniang
Bayan (SB) Board Member Florentino Sebastian.(a copy of the Barangay
Certification is attached herewith as Annex "D" and made an integral part hereof)

18. Petitioner Tower’s safety has been pre-cleared and is unlikely to cause harm
in exposing the members of the public to levels exceeding health limits
considering that the antenna height of the Tower is 45.73 meters or equivalent to
150 feet as stated in a Radio Frequency Evaluation report by Elizabeth H.
Mendoza health Physicist II, of the Department of Health Radiation Health
Service dated 9 May 2000. (a copy is hereto attached as Annex "E" and made an
integral part hereof)

19. The structural stability and soundness of the Tower has been certified by
Engr. Melanio A. Guillen Jr. of the Engineering Consulting firm Microflect as
contained in their Stress Analysis Report (a copy is hereto attached as Annex "F"
and made an integral part hereof)
 20. petitioner’s impetus to push through with the construction of the Tower is
spurred by the Telecommunications Act of 1995 or Republic Act 7925 which
states that the "expansion of the telecommunications network shall give priority to
improving and extending basic services to areas not yet served." Article II, Sec. 4
par. B.(a copy of RA 7925 is hereto attached as Annex "G" and made an integral
part hereof)7

In the end, petitioner sought the dismissal of respondents’ Complaint; the denial of respondents’
prayer for the issuance of a temporary restraining order and writ of preliminary mandatory
injunction; the award of moral, nominal, and exemplary damages in the amounts which the court
deem just and reasonable; and the award of attorney’s fees in the sum of ₱500,000.00 and
litigation expenses as may be proven at the trial.

Respondents then contested petitioner’s allegations and averred in their Reply and Answer to
Counterclaim that:

- Petitioner’s cell site relay antenna operates on the ultra high frequency (UHF) band, or
gigabyte band, that is much higher than that of TV and radio broadcasts which operates
only on the Very High Frequency (VHF) band, hence, petitioner’s equipment generates
dangerously high radiation and emission that is hazardous to the people exposed to it like
respondents, whose houses are clustered around petitioner’s cell site
antenna/communications tower;

- As admitted, petitioner has not secured the required Environmental Compliance

Certificate (ECC). It has not even obtained the initial compliance certificate (ICC). In
short,petitioner should have waited for these documents before constructing its tower,
hence, it violated the law and such construction is illegal and all the more sustains the
assertions of respondents;

- The alleged building permit issued to petitioner is illegal because of the lack of an ECC
and that petitioner’s application for a building permit covered only a building and not a
cell site antenna tower. Moreover, the petitioner failed to obtain a National
Telecommunications Commission (NTC) Clearance to construct the communications
tower. As will be seen in the application and permit, the documents are dated April, 2000
while the construction begun in March, 2000;

- The technical data that served as the basis of the Radio Frequency Radiation Evaluation
of petitioner’s mobile telephone base station was provided solely by the petitioner and in
fact misled the DOH Radiation Health Service. It states an absurdly low transmitted
power of twenty (20) watts for a dual band mobile phone service such as petitioner
Smart’s GSM 900/1800 Dual Band which is the standard service it offers to the public;

- The Stress Analysis Report is self-serving and tested against the communications tower,
the structural integrity is flawed;
 - While respondents may yield to the mandate of Republic Act No.7925, otherwise
known as the Telecommunications Act of 1995,extending and improving or upgrading of
basic services to are as not yet served, this should not be taken as a license to gamble
and/or destroy the health and well-being of the people;

- Petitioner’s alleged certification (Annex "D", should be Annex "4") is the very same
certification appended to respondents’ complaint which they have assailed as a forgery
and which respondent Jose Torre, the Barangay Captain of Vira, Roxas, Isabela,
emphatically denies having signed and/or issued the same. Moreover, the certification
gives petitioner away because respondent Jose Torre has no technical education using the
telecommunications term "SMART GSM & ETACS project," in said falsified
certification;

- Petitioner’s claim that it is not liable for fraud or bad faith, proudly stating that it has
painstakingly secured the consent of the majority of the residents surrounding the tower
site, is belied by the alleged Conformity of Host Community (Residential) – Annex "C" –
should be Annex "3" – where only a handful of residents signed the document prepared
by petitioner and the contents of which were misrepresented by a Sangguniang Bayan
Member in the person of Nick Sebastian who is an interested party being the owner of the
land where the tower is constructed. It was misrepresented to Linaflor Aldecoa, wife of
respondent Arsenio Aldecoa that it was already anyway approved and signed by
Barangay Captain Jose Torre when in truth his signature was again forged by the
petitioner and/or its employees or agents or person working for said company. Also, there
are persons who are not residents of Vira, Roxas, Isabela who signed the document such
as Melanio C. Gapultos of Rizal, Roxas, Isabela, Carlito Castillo of Nuesa, Roxas,
Isabela, and another, Gennie Feliciano from San Antonio, Roxas, Isabela. Certainly six
(6) persons do not constitute the conformity of the majority of the residents of Vira,
Roxas, Isabela, and those immediately affected by the cellsite tower like respondents.
This document is likewise flawed and cannot help petitioner’s cause. Besides,
respondents and other residents, sixty-two (62) of them, communicated their protest
against the erection of the cell tower specifying their reasons therefor and expressing
their sentiments and fears about petitioner’s communications tower, xerox copy attached
as Annex "A" and made integral part hereof;

- Respondents likewise specifically deny the truth of the allegation in paragraph 12 of the
answer, the truth being that the lot leased to petitioner is owned by SB Member Nick
Sebastian and that Florentino Sebastian is dummying for the former in avoidance of
possible anti-graft charges against his son concerning this project. It is also further denied
for lack of knowledge or information sufficient to form a belief as to the truth thereof.
Moreover, the lease contract, copy not annexed to petitioner’s answer, would
automatically be terminated or ended in the event of complaints and/or protests from the
residents.8

Civil Case No. Br. 23-632-2000 was set for pre-trial on September 28, 2000.9
On September 11, 2000, petitioner filed its Pre-Trial Brief in which it identified the following
issues:

4.1. Whether respondents have a cause of action against the petitioner SMART for this
Honorable Court to issue a Preliminary Mandatory Injunction over the SMART tower in
Roxas, Isabela as it allegedly poses a threat to the lives and safety of the residents within
the area and if respondents are entitled to moral and exemplary damages as well as
attorney’s fees and expenses of litigation.

4.2 Whether the complaint should be dismissed in that the claim or demand set forth in
the Complaint is fictitious, imaginary, sham and without any real basis.

4.3. What petitioner SMART is entitled under its compulsory counterclaim against
respondents for moral and exemplary damages, attorney’s fees, and other expenses of
litigation.10

On even date, petitioner filed a Motion for Summary Judgment that reads:

Petitioner SMART Communications Inc., thru counsel, respectfully manifests that:

1. There is no need for a full-blown trial as the causes of action and issues have already
been identified in all the pleadings submitted to this Honorable court by both respondents
and petitioner

2. There is clearly no genuine issue as to any material fact or cause in the action.

3. There is no extreme urgency to issue a Preliminary Mandatory Injunction as stated in

an affidavit executed by SMART Senior Supervisor Andres V. Romero in an affidavit
hereto attached as Annex "A"

4. Petitioner seeks immediate declaratory relief from respondents’ contrived allegations

as set forth in their complaint;

Wherefore, it is most respectfully prayed of this Honorable Court that summary judgment be
rendered pursuant to Rule 35 of the Revised Rules of Court.11

Respondents filed their Pre-Trial Brief on September 21, 2000, proposing to limit the issues,

viz:

- Whether petitioner’s communications tower is a nuisance per se/per accidens and

together with its standby generator maybe abated for posing danger to the property and
life and limb of the residents of Vira, Roxas, Isabela more particularly the respondents
and those whose houses are clustered around or in the periphery of the cell site.

- Damages, attorney’s fees, litigation expenses and other claims.12

Respondents likewise filed on September 21, 2000 their Opposition to petitioner’s Motion for
Summary Judgment, maintaining that there were several genuine issues relating to the cause of
action and material facts of their Complaint. They asserted that there was a need for a full blown
trial to prove the allegations in their Complaint, as well as the defenses put up by petitioner.13

In its Order14 dated September 28, 2000, the RTC indefinitely postponed the pre-trial until it has
resolved petitioner’s Motion for Summary Judgment. In the same Order, the RTC directed the
counsels of both parties to submit their memoranda, including supporting affidavits and other
documents within 30 days.

Petitioner submitted its Memorandum15 on October 26, 2000; while respondents, following
several motions for extension of time, filed their Memorandum16 on November 22, 2000. In their
Memorandum, respondents additionally alleged that:

The cellsite base station is powered by a roaring 25 KVA power generator. Operated 24 hours
since it started more than a month ago, it has sent "jackhammers into the brains" of all the
inhabitants nearby. Everyone is going crazy. A resident just recently operated for breast cancer is
complaining that the noise emanating from the generator is fast tracking her appointment with
death. She can no longer bear the unceasing and irritating roar of the power generator.

For this, the residents, led by the respondents, sought a noise emission test of the power
generator of petitioner SMART Communications with the DENR. The test was conducted on
November 14 and 15, 2000 and the result shows that the petitioner’s power generator failed the
noise emission test, day and night time. Result of this test was furnished the Municipal Mayor of
Roxas, Isabela (See Communication of DENR Regional Director Lorenzo C. Aguiluz to Mayor
Benedicto Calderon dated November 16, 2000 and the Inspection Monitoring Report).

With these findings, the power generator is also a nuisance. It must also be abated.17

On January 16, 2001, the RTC issued its Order granting petitioner’s Motion for Summary
Judgment and dismissing respondents’ Complaint. The RTC ruled as follows:

What is of prime importance is the fact that contrary to the respondents’ speculation, the radio
frequency radiation as found out by the Department of Health is much lower compared to that of
TV and radio broadcast. The respondents’ counter to this claim is that the Department of Health
was misled. This is a mere conclusion of the respondents.

The respondents in opposing the Smart’s construction of their cellsite is anchored on the
supposition that the operation of said cellsite tower would pose a great hazard to the health of the
alleged cluster of residents nearby and the perceived danger that the said tower might also
collapse in case of a strong typhoon that fell the Mobiline Cellsite tower of Mobiline (sic). The
structured built of the Smart’s Cellsite tower is similar to that of the Mobiline.

Now, as to the Court’s assessment of the circumstances obtaining, we find the claim of the
respondents to be highly speculative, if not an isolated one. Elsewhere, we find several cellsite
towers scattered (sic) allover, both of the Smart, Globe, and others, nay even in thickly populated
areas like in Metro Manila and also in key cities nationwide, yet they have not been outlawed or
declared nuisance as the respondents now want this Court to heed. To the thinking of the Court,
the respondents are harping imagined perils to their health for reason only known to them
perhaps especially were we to consider that the Brgy. Captain of Vira earlier gave its imprimatur
to this project. Noteworthy is the fact that the alleged cluster of residential houses that abut the
cellsite tower in question might be endangered thereby, the respondents are but a few of those
residents. If indeed, all those residents in Vira were adversely affected for the perceived hazards
posed by the tower in question, they should also have been joined in as respondents in a class
suit. The sinister motive is perhaps obvious.

All the foregoing reasons impel this Court to grant the petitioner’s motion for the dismissal of the
complaint, the perceived dangers being highly speculative without any bases in fact. Allegations
in the complaint being more imaginary than real, do not constitute factual bases to require further
proceeding or a trial. As to the claim that there is no certification or clearance from the DENR
for the petitioner to lay in wait before the construction, suffice it to say that no action as yet has
been taken by said office to stop the ongoing operation of said cellsite now in operation. There
has been no hue and cry from among the greater majority of the people of Roxas, Isabela, against
it. Al contrario, it is most welcome to them as this is another landmark towards the progress of
this town.18

The dispositive portion of the RTC Order reads:

WHEREFORE, in view of the foregoing considerations, the Court hereby renders judgment
dismissing the complaint as the allegations therein are purely speculative and hence no basis in
fact to warrant further proceedings of this case.

The Court finds no compelling grounds to award damages.

Without costs.19

In another Order20 dated February 27, 2001, the RTC denied respondents’ Motion for
Reconsideration.

Respondents filed an appeal with the Court of Appeals, docketed as CA-G.R. CV No. 71337.

The Court of Appeals rendered its Decision on July 16, 2004. The appellate court declared the
cellular base station of petitioner a nuisance that endangered the health and safety of the
residents of Barangay Vira, Roxas, Isabela because: (1) the locational clearance granted to
petitioner was a nullity due to the lack of approval by majority of the actual residents of the

barangay and a barangay resolution endorsing the construction of the cellular base station; and
(2) the sound emission of the generator at the cellular base station exceeded the Department of
Environment and Natural Resources (DENR) standards. Consequently, the Court of Appeals
decreed:
WHEREFORE, the appealed decision is hereby REVERSED and SET ASIDE. A new one is
entered declaring the communications tower or base station of petitioner Smart Communications,
Inc. located at Brigido Pascual Street in Vira, Municipality of Roxas, Province of Isabela, a
nuisance. Petitioner is ordered to cease and desist from operating the said tower or station.21

Petitioner filed its Motion for Reconsideration arguing that: (1) the basis for the judgment of the
appellate court that the cellular base station was a nuisance had been extinguished as the
generator subject of the Complaint was already removed; and (2) there had been substantial
compliance in securing all required permits for the cellular base station.22

The Court of Appeals, in a Resolution dated December 9, 2004,refused to reconsider its earlier
Decision, reasoning that:

Petitioner principally anchors its pleas for reconsideration on the Certification issued by Roxas,
Isabela Municipal Engineer Virgilio Batucal, declaring that upon actual inspection, no Denyo
Generator Set has been found in the company’s cell site in Roxas, Isabela. We hold, however,
that the certification dated August 12, 2004, taken on its own, does not prove Smart’s allegation
that it has abandoned using diesel- powered generators since January 2002. Respondents’ current
photographs of the cell site clearly shows (sic) that Smart continues to use a mobile generator
emitting high level of noise and fumes.

We have gone over [petitioner’s] other arguments and observed that they are merely repetitive of
previous contentions which we have judiciously ruled upon.23 (Citations omitted.)

Petitioner seeks recourse from the Court through the instant Petition, assigning the following
errors on the part of the Court of Appeals:

21.0 The Court of Appeals erred when it encroached upon an executive function of
determining the validity of a locational clearance when it declared, contrary to the
administrative findings of the Housing Land Use and Regulatory Board ("HLURB"), that
the locational clearance of Petitioner was void.

22.0 The Court of Appeals erred when it resolved an issue that was not submitted to it for
resolution and in the process had usurped a purely executive function.

23.0 The Court of Appeals erred in declaring Petitioner’s entire base station a nuisance
considering that it was only a small part of the base station, a generator that initially
powered the base station, that was reportedly producing unacceptable levels of noise.

24.0 The Court of Appeals erred in not considering that the supervening event of shut
down and pull out of the generator in the base station, the source of the perceived
nuisance, made the complaint for abatement of nuisance academic.24

The Petition is partly meritorious. While the Court agrees that the Court of Appeals should not
have taken cognizance of the issue of whether the locational clearance for petitioner’s cellular
base station is valid, the Court will still not reinstate the RTC Order dated January 16, 2001
granting petitioner’s Motion for Summary Judgment and entirely dismissing Civil Case No. Br.
23-632-2000. The issues of (1) whether petitioner’s cellular base station is a nuisance, and (2)
whether the generator at petitioner’s cellular base station is, by itself, also a nuisance, ultimately
involve disputed or contested factual matters that call for the presentation of evidence at a full-
blown trial.

On the finding of the Court of

Appeals that petitioner’s locational
clearance for its cellular base station
is a nullity

Based on the principle of exhaustion of administrative remedies and its corollary doctrine of
primary jurisdiction, it was premature for the Court of Appeals to take cognizance of and rule
upon the issue of the validity or nullity of petitioner’s locational clearance for its cellular base
station.

The principle of exhaustion of administrative remedies and the doctrine of primary jurisdiction
were explained at length by the Court in Province of Zamboanga del Norte v. Court of
Appeals,25 as follows:

The Court in a long line of cases has held that before a party is allowed to seek the intervention
of the courts, it is a pre-condition that he avail himself of all administrative processes afforded
him. Hence, if a remedy within the administrative machinery can be resorted to by giving the
administrative officer every opportunity to decide on a matter that comes within his jurisdiction,
then such remedy must be exhausted first before the court's power of judicial review can be
sought. The premature resort to the court is fatal to one's cause of action. Accordingly, absent
any finding of waiver or estoppel, the case may be dismissed for lack of cause of action.

The doctrine of exhaustion of administrative remedies is not without its practical and legal
reasons. Indeed, resort to administrative remedies entails lesser expenses and provides for
speedier disposition of controversies. Our courts of justice for reason of comity and convenience
will shy away from a dispute until the system of administrative redress has been completed and
complied with so as to give the administrative agency every opportunity to correct its error and
to dispose of the case.

xxxx

The doctrine of primary jurisdiction does not warrant a court to arrogate unto itself the authority
to resolve a controversy the jurisdiction over which is initially lodged with an administrative
body of special competence.

We have held that while the administration grapples with the complex and multifarious problems
caused by unbridled exploitation of our resources, the judiciary will stand clear. A long line of
cases establishes the basic rule that the court will not interfere in matters which are addressed to
the sound discretion of government agencies entrusted with the regulation of activities coming
under the special technical knowledge and training of such agencies.
In fact, a party with an administrative remedy must not merely initiate the prescribed
administrative procedure to obtain relief, but also pursue it to its appropriate conclusion before
seeking judicial intervention. The underlying principle of the rule on exhaustion of
administrative remedies rests on the presumption that when the administrative body, or grievance
machinery, is afforded a chance to pass upon the matter, it will decide the same correctly.
(Citations omitted.)

The Court again discussed the said principle and doctrine in Addition Hills Mandaluyong Civic
& Social Organization, Inc. v. Megaworld Properties & Holdings, Inc., et al.,26 citing Republic v.
Lacap,27 to wit:

We have consistently declared that the doctrine of exhaustion of administrative remedies is a

cornerstone of our judicial system. The thrust of the rule is that courts must allow administrative
agencies to carry out their functions and discharge their responsibilities within the specialized
areas of their respective competence. The rationale for this doctrine is obvious. It entails lesser
expenses and provides for the speedier resolution of controversies. Comity and convenience also
impel courts of justice to shy away from a dispute until the system of administrative redress has
been completed.

In the case of Republic v. Lacap, we expounded on the doctrine of exhaustion of administrative

remedies and the related doctrine of primary jurisdiction in this wise:

The general rule is that before a party may seek the intervention of the court, he should first avail
of all the means afforded him by administrative processes. The issues which administrative
agencies are authorized to decide should not be summarily taken from them and submitted to a
court without first giving such administrative agency the opportunity to dispose of the same after
due deliberation.

Corollary to the doctrine of exhaustion of administrative remedies is the doctrine of primary

jurisdiction; that is, courts cannot or will not determine a controversy involving a question which
is within the jurisdiction of the administrative tribunal prior to the resolution of that question by
the administrative tribunal, where the question demands the exercise of sound administrative
discretion requiring the special knowledge, experience and services of the administrative tribunal
to determine technical and intricate matters of fact. (Citations omitted.)

The Housing and Land Use Regulatory Board (HLURB)28 is the planning, regulatory, and quasi-
judicial instrumentality of government for land use development.29 In the exercise of its mandate
to ensure rational land use by regulating land development, it issued HLURB Resolution No.R-
626, series of 1998, Approving the Locational Guidelines for Base Stations of Cellular Mobile
Telephone Service, Paging Service, Trunking Service, Wireless Loop Service and Other
Wireless Communication Services (HLURB Guidelines). Said HLURB Guidelines aim to
protect" providers and users, as well as the public in general while ensuring efficient and
responsive communication services."

Indeed, the HLURB Guidelines require the submission of several documents for the issuance of
a locational clearance for a cellular base station, including:
IV. Requirements and Procedures in Securing Locational Clearance

A. The following documents shall be submitted in duplicate:

xxxx

g. Written Consent:

g.1 Subdivisions

xxxx

g. 1.2 In the absence of an established Homeowners Association, consent/affidavit of non-

objection from majority of actual occupants and owners of properties within a radial distance
equivalent to the height of the proposed base station measured from its base, including all those
whose properties is adjoining the proposed site of the base station.(Refer to Figure 2)

xxxx

h. Barangay Council Resolution endorsing the base station.

Correlatively, the HLURB provides administrative remedies for non-compliance with its
requirements.

In 2000, when factual precedents to the instant case began to take place, HLURB Resolution No.
R-586, series of 1996, otherwise known as the 1996 HLURB Rules of Procedure, as amended,
was in effect. The original 1996 HLURB Rules of Procedure was precisely amended by HLURB
Resolution No. R-655, series of 1999, "so as to afford oppositors with the proper channel and
expeditious means to ventilate their objections and oppositions to applications for permits,
clearances and licenses, as well as to protect the rights of applicants against frivolous oppositions
that may cause undue delay to their projects. "Under the 1996 HLURB Rules of Procedure, as
amended, an opposition to an application for a locational clearance for a cellular base station or a
complaint for the revocation of a locational clearance for a cellular base station already issued, is
within the original jurisdiction of the HLURB Executive Committee. Relevant provisions read:

RULE III

Commencement of Action, Summons and Answer

xxxx

SECTION 2. Opposition to Application for Permit/License/ Clearance. – When an opposition is

filed to an application for a license, permit or clearance with the Board or any of its Regional
Field Office, the Regional Officer shall make a preliminary evaluation and determination
whether the case is impressed with significant economic, social, environmental or national policy
implications. If he/she determines that the case is so impressed with significant economic, social,
environmental or national policy implications, such as, but not limited to:

1) Projects of national significance, for purposes of this rule, a project is of national

significance if it is one or falls under any of those enumerated in Rule III, Section 3 of
these Rules, as amended;

2) Those involving zoning variances and exceptions;

3) Those involving significant public interest or policy issues;

4) Those endorsed by the zoning administrators of local government units.

The Regional Officer shall cause the records of the case to be transmitted to the Executive
Committee which shall assume original jurisdiction over the case, otherwise, the Regional
Officer shall act on and resolve the Opposition.

SECTION 3. A project is of national significance if it involves any of the following:

a) Power generating plants (e.g., coal-fired thermal plants)and related facilities (e.g.,
transmission lines);

b) Airport/seaports; dumping sites/sanitary landfills; reclamation projects;

c) Large-scale piggery and poultry projects;

d) Mining/quarrying projects;

e) National government centers;

f) Golf courses;

g) Fish ponds and aqua culture projects;

h) Cell sites and telecommunication facilities;

i) Economic zones, regional industrial centers, regional agro-industrial centers, provincial

industrial centers;

j) All other industrial activities classified as high-intensity uses (1-3 Projects).

SECTION 4. Any party aggrieved, by reason of the elevation or non-elevation of any contested
application by the Regional Officer, may file a verified petition for review thereof within thirty
(30) days from receipt of the notice of elevation or non-elevation of the contested application
with the Executive Committee which shall resolve whether it shall assume jurisdiction thereon.
The contested application for clearance, permit or license shall be treated as a complaint and all
other provisions of these rules on complaints not inconsistent with the preceding section shall, as
far as practicable, be made applicable to oppositions except that the decision of the Board en
banc on such contested applications shall be final and executory as provided in Rule XIX,
Section 2 of these Rules, as amended.

The Rules pertaining to contested applications for license, permit or clearance shall, by analogy,
apply to cases filed primarily for the revocation thereof.

xxxx

RULE XVII
Proceedings Before the Board of Commissioners

xxxx

SECTION 15. The Executive Committee. – The Executive Committee shall be composed of the
four regular Commissioners and the Ex-Officio Commissioner from the Department of Justice.

xxxx

The Executive Committee shall act for the Board on policy matters, measures or proposals
concerning the management and substantive administrative operations of the Board subject to
ratification by the Board en banc, and shall assume original jurisdiction over cases involving
opposition to an application for license, permit or clearance for projects or cases impressed with
significant economic, social, environmental or national policy implications or issues in
accordance with Section 2, Rule II of these Rules, as amended. It shall also approve the proposed
agenda of the meetings of the Board en banc. (Emphases supplied.)

After the HLURB Executive Committee had rendered its Decision, the aggrieved party could
still avail itself of a system of administrative appeal, also provided in the 1996 HLURB Rules of
Procedure, as amended:

RULE XII
Petition for Review

SECTION 1. Petition for Review. – Any party aggrieved by the Decision of the Regional
Officer, on any legal ground and upon payment of the review fee may file with the Regional
Office a verified Petition for Review of such decision within thirty (30) calendar days from
receipt thereof.

In cases decided by the Executive Committee pursuant to Rule II, Section 2 of these Rules, as
amended, the verified Petition shall be filed with the Executive Committee within thirty (30)
calendar days from receipt of the Committee’s Decision. Copy of such petition shall be furnished
the other party and the Board of Commissioners. No motion for reconsideration or mere notice of
petition for review of the decision shall be entertained.
Within ten (10) calendar days from receipt of the petition, the Regional Officer, or the Executive
Committee, as the case may be, shall elevate the records to the Board of Commissioner together
with the summary of proceedings before the Regional Office. The Petition for Review of a
decision rendered by the Executive Committee shall betaken cognizance of by the Board en
banc.

RULE XVIII
Appeal from Board Decisions

SECTION 1.

Motion for Reconsideration. – Within the period for filing an appeal from a Board decision,
order or ruling of the Board of Commissioners, any aggrieved party may file a motion for
reconsideration with the Board only on the following grounds: (1) serious errors of law which
would result in grave injustice if not corrected; and (2) newly discovered evidence.

Only one (1) motion for reconsideration shall be entertained.

Motions for reconsideration shall be assigned to the division from which the decision, order or
ruling originated.

SECTION 2. Appeal. – Any party may upon notice to the Board and the other party appeal a
decision rendered by the Board of Commissioners en banc or by one of its divisions to the Office
of the President within fifteen (15) calendar days from receipt thereof, in accordance with P.D.
No. 1344 and A.O. No. 18 Series of 1987.

RULE XIX
Entry of Judgment

xxxx

SECTION 2. Rules on Finality. – For purposes of determining when a decision or order has
become final and executory for purposes of entry in the Book of Judgment, the following shall
be observed:

a. Unless otherwise provided in a decision or resolution rendered by the Regional Officer, the
Executive Committee, or the Board of Commissioners, as the case may be, the orders contained
therein shall become final as regards a party thirty (30) calendar days after the date of receipt
thereof and no petition for review or appeal therefrom has been filed within the said period.
(Emphases supplied.)

There is no showing that respondents availed themselves of the afore-mentioned administrative

remedies prior to instituting Civil Case No. Br. 23-632-2000 before the RTC. While there are
accepted exceptions to the principle of exhaustion of administrative remedies and the doctrine of
primary jurisdiction,30 respondents never asserted nor argued any of them. Thus, there is no
cogent reason for the Court to apply the exceptions instead of the general rule to this case.
Ordinarily, failure to comply with the principle of exhaustion of administrative remedies and the
doctrine of primary jurisdiction will result in the dismissal of the case for lack of cause of action.
However, the Court herein will not go to the extent of entirely dismissing Civil Case No. Br. 23-
632-2000. The Court does not lose sight of the fact that respondents’ Complaint in Civil Case
No. Br. 23-632-2000 is primarily for abatement of nuisance; and respondents alleged the lack of
HLURB requirements for the cellular base station, not to seek nullification of petitioner’s
locational clearance, but to support their chief argument that said cellular base station is a
nuisance which needs to be abated. The issue of whether or not the locational clearance for said
cellular base station is valid is actually separate and distinct from the issue of whether or not the
cellular base station is a nuisance; one is not necessarily determinative of the other. While the
first is within the primary jurisdiction of the HLURB and, therefore, premature for the courts to
rule upon in the present case, the latter is within the jurisdiction of the courts to determine but
only after trial proper.

On the declaration of the Court of

Appeals that petitioner’s cellular
base station is a nuisance that must
be abated

Article 694 of the Civil Code defines nuisance as:

ART. 694. A nuisance is any act, omission, establishment, business, condition of property, or
anything else which:

(1) Injures or endangers the health or safety of others; or

(2) Annoys or offends the senses; or

(3) Shocks, defies or disregards decency or morality; or

(4) Obstructs or interferes with the free passage of any public highway or street, or any
body of water; or

(5) Hinders or impairs the use of property.

The term "nuisance" is so comprehensive that it has been applied to almost all ways which have
interfered with the rights of the citizens, either in person, property, the enjoyment of his property,
or his comfort.31

The Court, in AC Enterprises, Inc. v. Frabelle Properties Corporation,32 settled that a simple suit
for abatement of nuisance, being incapable of pecuniary estimation, is within the exclusive
jurisdiction of the RTC. Although respondents also prayed for judgment for moral and
exemplary damages, attorney’s fees, and litigation expenses, such claims are merely incidental to
or as a consequence of, their principal relief.
Nonetheless, while jurisdiction over respondents’ Complaint for abatement of nuisance lies with
the courts, the respective judgments of the RTC and the Court of Appeals cannot be upheld.

At the outset, the RTC erred in granting petitioner’s Motion for Summary Judgment and ordering
the dismissal of respondents’ Complaint in Civil Case No. Br. 23-632-2000.

Summary judgments are governed by Rule 35 of the Rules of Court, pertinent provisions of
which state:

SEC. 2. Summary judgment for defending party. – A party against whom a claim, counterclaim,
or cross-claim is asserted or a declaratory relief is sought may, at any time, move with supporting
affidavits, depositions or admissions for a summary judgment in his favor as to all or any part
thereof.

SEC. 3. Motion and proceedings thereon. – The motion shall be served at least ten (10) days
before the time specified for the hearing. The adverse party may serve opposing affidavits,
depositions, or admissions at least three (3) days before the hearing. After the hearing, the
judgment sought shall be rendered forthwith if the pleadings, supporting affidavits, depositions,
and admissions on file, show that, except as to the amount of damages, there is no genuine issue
as to any material fact and that the moving party is entitled to a judgment as a matter of law.
(Emphases supplied.)

In Rivera v. Solidbank Corporation,33 the Court discussed extensively when a summary judgment

is proper:

For a summary judgment to be proper, the movant must establish two requisites: (a) there must
be no genuine issue as to any material fact, except for the amount of damages; and (b) the party
presenting the motion for summary judgment must be entitled to a judgment as a matter of law.
Where, on the basis of the pleadings of a moving party, including documents appended thereto,
no genuine issue as to a material fact exists, the burden to produce a genuine issue shifts to the
opposing party. If the opposing party fails, the moving party is entitled to a summary judgment.

A genuine issue is an issue of fact which requires the presentation of evidence as distinguished
from an issue which is a sham, fictitious, contrived or a false claim.

The trial court can determine a genuine issue on the basis of the pleadings, admissions,
documents, affidavits or counter affidavits submitted by the parties. When the facts as pleaded
appear uncontested or undisputed, then there is no real or genuine issue or question as to any fact
and summary judgment called for. On the other hand, where the facts pleaded by the parties are
disputed or contested, proceedings for a summary judgment cannot take the place of a trial. The
evidence on record must be viewed in light most favorable to the party opposing the motion who
must be given the benefit of all favorable inferences as can reasonably be drawn from the
evidence.

Courts must be critical of the papers presented by the moving party and not of the
papers/documents in opposition thereto. Conclusory assertions are insufficient to raise an issue
of material fact. A party cannot create a genuine dispute of material fact through mere
speculations or compilation of differences. He may not create an issue of fact through bald
assertions, unsupported contentions and conclusory statements. He must do more than rely upon
allegations but must come forward with specific facts in support of a claim. Where the factual
context makes his claim implausible, he must come forward with more persuasive evidence
demonstrating a genuine issue for trial. (Emphases supplied; citations omitted.)

Judging by the aforequoted standards, summary judgment cannot be rendered in this case as
there are clearly factual issues disputed or contested by the parties. As respondents correctly
argued in their Opposition to petitioner’s Motion for Summary Judgment:

1. Contrary to the claim of petitioner, there are several genuine issues as to the cause of action
and material facts related to the complaint. For one there is an issue on the structural integrity of
the tower, the ultra high frequency (UHF) radio wave emission radiated by the communications
tower affecting the life, health and well being of the[respondents] and the barangay residents,
especially their children. Also, the noxious/deleterious fumes and the noise produce[d] by the
standby generator and the danger posted by the tower if it collapses in regard to life and limb as
well as the property of the [respondents] particularly those whose houses abut, or are near/within
the periphery of the communications tower. x x x34

Likewise constituting real or genuine issues for trial, which arose from subsequent events, are the
following: whether the generator subject of respondents’ Complaint had been removed; whether
said generator had been replaced by another that produces as much or even more noise and
fumes; and whether the generator is a nuisance that can be abated separately from the rest of the
cellular base station.

Furthermore, the Court demonstrated in AC Enterprises, Inc. the extensive factual considerations
of a court before it can arrive at a judgment in an action for abatement of nuisance:

Whether or not noise emanating from a blower of the air conditioning units of the Feliza
Building is nuisance is to be resolved only by the court in due course of
proceedings.1âwphi1 The plaintiff must prove that the noise is a nuisance and the consequences
thereof. Noise is not a nuisance per se. It may be of such a character as to constitute a nuisance,
even though it arises from the operation of a lawful business, only if it affects injuriously the
health or comfort of ordinary people in the vicinity to an unreasonable extent. Injury to a
particular person in a peculiar position or of especially sensitive characteristics will not render
the noise an actionable nuisance. In the conditions of present living, noise seems inseparable
from the conduct of many necessary occupations. Its presence is a nuisance in the popular sense
in which that word is used, but in the absence of statute, noise becomes actionable only when it
passes the limits of reasonable adjustment to the conditions of the locality and of the needs of the
maker to the needs of the listener. What those limits are cannot be fixed by any definite measure
of quantity or quality; they depend upon the circumstances of the particular case. They may be
affected, but are not controlled, by zoning ordinances. The delimitation of designated areas to
use for manufacturing, industry or general business is not a license to emit every noise profitably
attending the conduct of any one of them.
The test is whether rights of property, of health or of comfort are so injuriously affected by the
noise in question that the sufferer is subjected to a loss which goes beyond the reasonable limit
imposed upon him by the condition of living, or of holding property, in a particular locality in
fact devoted to uses which involve the emission of noise although ordinary care is taken to
confine it within reasonable bounds; or in the vicinity of property of another owner who, though
creating a noise, is acting with reasonable regard for the rights of those affected by it.

Commercial and industrial activities which are lawful in themselves may become nuisances if
they are so offensive to the senses that they render the enjoyment of life and property
uncomfortable. The fact that the cause of the complaint must be substantial has often led to
expressions in the opinions that to be a nuisance the noise must be deafening or loud or excessive
and unreasonable. The determining factor when noise alone is the cause of complaint is not its
intensity or volume. It is that the noise is of such character as to produce actual physical
discomfort and annoyance to a person of ordinary sensibilities, rendering adjacent property less
comfortable and valuable. If the noise does that it can well be said to be substantial and
unreasonable in degree, and reasonableness is a question of fact dependent upon all the
circumstances and conditions. There can be no fixed standard as to what kind of noise constitutes
a nuisance.

The courts have made it clear that in every case the question is one of reasonableness. What is a
reasonable use of one’s property and whether a particular use is an unreasonable invasion of
another’s use and enjoyment of his property so as to constitute a nuisance cannot be determined
by exact rules, but must necessarily depend upon the circumstances of each case, such as locality
and the character of the surroundings, the nature, utility and social value of the use, the extent
and nature of the harm involved, the nature, utility and social value of the use or enjoyment
invaded, and the like.

Persons who live or work in thickly populated business districts must necessarily endure the
usual annoyances and of those trades and businesses which are properly located and carried on in
the neighborhood where they live or work. But these annoyances and discomforts must not be
more than those ordinarily to be expected in the community or district, and which are incident to
the lawful conduct of such trades and businesses. If they exceed what might be reasonably
expected and cause unnecessary harm, then the court will grant relief.

A finding by the LGU that the noise quality standards under the law have not been complied
with is not a prerequisite nor constitutes indispensable evidence to prove that the defendant is or
is not liable for a nuisance and for damages. Such finding is merely corroborative to the
testimonial and/or other evidence to be presented by the parties. The exercise of due care by the
owner of a business in its operation does not constitute a defense where, notwithstanding the
same, the business as conducted, seriously affects the rights of those in its vicinity.35 (Citations
omitted.)

A reading of the RTC Order dated January 16, 2001 readily shows that the trial court did not take
into account any of the foregoing considerations or tests before summarily dismissing Civil Case
No. Br. 23-632-2000. The reasoning of the RTC that similar cellular base stations are scattered in
heavily populated areas nationwide and are not declared nuisances is unacceptable. As to
whether or not this specific cellular base station of petitioner is a nuisance to respondents is
largely dependent on the particular factual circumstances involved in the instant case, which is
exactly why a trial for threshing out disputed or contested factual issues is indispensable.
Evidently, it was the RTC which engaged in speculations and unsubstantiated conclusions.

For the same reasons cited above, without presentation by the parties of evidence on the
contested or disputed facts, there was no factual basis for declaring petitioner's cellular base
station a nuisance and ordering petitioner to cease and desist from operating the same.

Given the equally important interests of the parties in this case, i.e., on one hand, respondents'
health, safety, and property, and on the other, petitioner's business interest and the public's need
for accessible and better cellular mobile telephone services, the wise and prudent course to take
is to remand the case to the RTC for trial and give the parties the opportunity to prove their
respective factual claims.

WHEREFORE, premises considered, the instant Petition is PARTIALLY GRANTED. The

Decision dated July 16, 2004 and Resolution dated December 9, 2004 of the Court of Appeals in
CA-G.R. CV No. 71337 are REVERSED and SET ASIDE. Let the records of the case be
REMANDED to the Regional Trial Court, Branch 23, of Roxas, Isabela, which is DIRECTED to
reinstate Civil Case No. Br. 23-632-2000 to its docket and proceed with the trial and adjudication
thereof with appropriate dispatch in accordance with this Decision.

SO ORDERED.

(7) G.R. No. 188213

NATIVIDAD C. CRUZ and BENJAMIN DELA CRUZ, Petitioners,

vs.
PANDACAN HIKER'S CLUB, INC., Represented by its President, PRISCILA
ILAO, Respondent.

DECISION

PERALTA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court
seeking to ahnul and set aside the Court of Appeals Decision1 dated March 31, 2008 in CA-G.R.
SP. No. 104474. The appellate court reversed and set aside the earlier decision of the Office of
the Ombudsman dismissing the complaint filed against petitioners.

Below are the facts of the case.

Petitioner Natividad C. Cruz (Cruz) was Punong Barangay or Chairperson of Barangay 848,

Zone 92, City of Manila.2 On November 10, 2006, around five o'clock in the afternoon, and
along Central Street, Pandacan, Manila, within the vicinity of her barangay, she allegedly
confronted persons playing basketball with the following statements:

Bakit nakabukas ang (basketball) court? Wala kayong karapatang maglaro sa court na 'to,
barangay namin ito! xxx xxx xxx Wala kayong magagawa. Ako ang chairman dito. Mga
walanghiya kayo, patay gutom! Hindi ako natatakot! Kaya kong panagutan lahat!3

Then, she allegedly gave an order to the other petitioner, Barangay Tanod Benjamin dela Cruz
(Dela Cruz), to destroy the basketball ring by cutting it up with a hacksaw which Dela Cruz
promptly complied with, thus, rendering the said basketball court unusable.4

The acts of petitioners prompted the filing of a Complaint (for Malicious Mischief, Grave
Misconduct, Conduct Prejudicial to the Best Interest of the Service and Abuse of
Authority)5 before the Prosecutor's Office and the Office of the Ombudsman by the group that
claims to be the basketball court's owners, herein respondents Pandacan Hiker's Club, Inc. (PHC)
and its president Priscila Ilao (Ilao). In the complaint, they alleged that PHC, a non-stock, non-
profit civic organization engaged in "health, infrastructure, sports and other so-called poverty
alleviation activities" in the Pandacan area of Manila, is the group that had donated, administered
and operated the subject basketball court for the Pandacan community until its alleged
destruction by petitioners.6

The complaint averred that the damage caused by petitioners was in the amount of around
P2,000.00. It was supported by the affidavits of ten (10) members of PHC who allegedly
witnessed the destruction. Meanwhile, respondent Ilao added that the acts of petitioner Cruz, the
Barangay Chairperson, of ordering the cutting up of the basketball ring and uttering abusive
language were "unwarranted and unbecoming of a public official."7

In answer to the complaint, Cruz alleged that the basketball court affected the peace in the
barangay and was the subject of many complaints from residents asking for its closure. She
alleged that the playing court blocked jeepneys from passing through and was the site of rampant
bettings and fights involving persons from within and outside the barangays. She claimed that
innocent persons have been hurt and property had been damaged by such armed confrontations,
which often involved the throwing of rocks and improvised "molotov" bombs. She also averred
that noise from the games caused lack of sleep among some residents and that the place's
frequent visitors used the community's fences as places to urinate. Cruz maintained that the
court's users never heeded the barangay officials' efforts to pacify them and when the basketball
ring was once padlocked, such was just removed at will while members of the complainants' club
continued playing. When Cruz asked for the PHC to return the steel bar and padlock, the request
was simply ignored, thus, prompting her to order Dela Cruz to destroy the basketball ring. The
destruction was allegedly also a response to the ongoing clamor of residents to stop the
basketball games.8 Cruz denied allegations that she shouted invectives at the PHC members. In
support of her answer, Cruz attached copies of the complaints, a "certification" and letters of
barangay residents asking for a solution to the problems arising from the disruptive activities on
the said playing venue.9
After the parties' submission of their respective Position Papers,10 the Office of the Ombudsman
rendered its Decision11 dated April 26, 2007dismissing the complaint filed by Ilao, et al. The
Ombudsman found that the act of destroying the basketball ring was only motivated by Cruz and
Dela Cruz performing their sworn duty, as defined in the Local Government Code.12 It found the
act to be a mere response to the clamor of constituents.13 The office found that though the cutting
of the ring was "drastic," it was done by the barangay officials within their lawful duties, as the
act was only the result of the unauthorized removal of and failure to return the steel bar and
padlock that were earlier placed thereon.14 Neither did the office give credence to the allegation
that Cruz uttered invectives against the complainants' witnesses, noting that the said witnesses
are tainted by their personal animosity against the barangay officials.15

After the Ombudsman's ruling dismissing the complaint filed against Cruz and Dela Cruz, the
complainants Ilao, et al. filed a petition for review before the Court of Appeals praying for the
latter court to nullify the Ombudsman's decision.16 The petition's thesis was that any actions in
furtherance of the community's welfare must be approved by ordinance and that unless a thing is
a nuisance per se, such a thing may not be abated via an ordinance and extrajudicially.17

Commenting on the petition for review, the Office of the Ombudsman, through the Office of the
Solicitor General, averred that Section 389 of the Local Government Code, which defines the
powers, duties and functions of the punong barangay, among which are the power to enforce all
laws and ordinances applicable within the barangay and the power to maintain public order in the
barangay and, in pursuance thereof, to assist the city or municipal mayor and
the sanggunian members in the performance of their duties and functions, does not require an
ordinance for the said official to perform said functions.18 The acts were also in pursuance of the
promotion of the general welfare of the community, as mentioned in Section 16 of the Code.19

In its assailed Decision dated March 31, 2008, the Court of Appeals reversed and set aside the
decision of the Office of the Ombudsman. The appellate court found petitioner Natividad C.
Cruz liable for conduct prejudicial to the best interest of the service and penalized her with a
suspension of six (6) months and one (1) day, while it reprimanded the other petitioner Benjamin
dela Cruz, and also warned both officials that a future repetition of the same or similar acts will
be dealt with more severely.

The appellate court sustained the contentions of Ilao, et al. that Cruz and Dela Cruz performed
an abatement of what they thought was a public nuisance but did the same without following the
proper legal procedure, thus making them liable for said acts.20 It held Cruz to be without the
power to declare a thing a nuisance unless it is a nuisance per se.21 It declared the subject
basketball ring as not such a nuisance and, thus, not subject to summary abatement. The court
added that even if the same was to be considered a nuisance per accidens, the only way to
establish it as such is after a hearing conducted for that purpose.22

A motion for reconsideration filed by Cruz and Dela Cruz was likewise denied by the appellate
court.23 Hence, they filed this petition.

Petitioners maintain that they acted merely with the intention to regain free passage of people
and vehicles over the street and restore the peace, health and sanitation of those affected by the
basketball court. Cruz, in particular, asserts that she merely abated a public nuisance which she
claimed was within her power as barangay chief executive to perform and was part of her duty to
maintain peace and order.24

We deny the petition.

Under normal circumstances, this Court would not disturb the findings of fact of the Office of
the Ombudsman when they are supported by substantial evidence.25 However, We make an
exception of the case at bar because the findings of fact of the Ombudsman and the Court of
Appeals widely differ.26

It is held that the administrative offense of conduct prejudicial to the interest of the service is
committed when the questioned conduct tarnished the image and integrity of the officer's public
office; the conduct need not be related or connected to the public officer's official functions for
the said officer to be meted the corresponding penalty.27 The basis for such liability is Republic
Act No. 6713, or the Code of Conduct and Ethical Standards for Public Officials and
Employees,  particularly Section 4 (c) thereof, which ordains that public officials and employees
shall at all times respect the rights of others, and shall refrain from doing acts contrary to public
safety and public interest.28 In one case, this Court also stated that the Machiavellian principle
that "the end justifies the means" has no place in government service, which thrives on the rule
of law, consistency and stability.29

For these reasons, in the case at bar, We agree with the appellate court that the petitioners’
actions, though well-intentioned, were improper and done in excess of what was required by the
situation and fell short of the aforementioned standards of behavior for public officials.

It is clear from the records that petitioners indeed cut or sawed in half the subject basketball ring,
which resulted in the destruction of the said equipment and rendered it completely
unusable.30 Petitioners also moved instantaneously and did not deliberate nor consult with
the Sangguniang Barangay prior to committing the subject acts; neither did they involve any
police or law enforcement agent in their actions. They acted while tempers were running high as
petitioner Cruz, the Barangay Chairperson, became incensed at the removal of the steel bar and
padlock that was earlier used to close access to the ring and at the inability or refusal of
respondents' group to return the said steel bar and padlock to her as she had ordered.

The destructive acts of petitioners, however, find no legal sanction. This Court has ruled time
and again that no public official is above the law.31 The Court of Appeals correctly ruled that
although petitioners claim to have merely performed an abatement of a public nuisance, the same
was done summarily while failing to follow the proper procedure therefor and for which,
petitioners must be held administratively liable.

Prevailing jurisprudence holds that unless a nuisance is a nuisance per se, it may not be
summarily abated.32

There is a nuisance when there is "any act, omission, establishment, business, condition of
property, or anything else which: (1) injures or endangers the health or safety of others; or (2)
annoys or offends the senses; or (3) shocks, defies or disregards decency or morality; or (4)
obstructs or interferes with the free passage of any public highway or street, or any body of
water; or (5) hinders or impairs the use of property."33 But other than the statutory definition,
jurisprudence recognizes that the term "nuisance" is so comprehensive that it has been applied to
almost all ways which have interfered with the rights of the citizens, either in person, property,
the enjoyment of his property, or his comfort.34

A nuisance is classified in two ways: (1) according to the object it affects; or (2) according to its
susceptibility to summary abatement.1âwphi1

As for a nuisance classified according to the object or objects that it affects, a nuisance may
either be: (a) a public nuisance, i.e., one which "affects a community or neighborhood or any
considerable number of persons, although the extent of the annoyance, danger or damage upon
individuals may be unequal"; or (b) a private nuisance, or one "that is not included in the
foregoing definition" which, in jurisprudence, is one which "violates only private rights and
produces damages to but one or a few persons."35

A nuisance may also be classified as to whether it is susceptible to a legal summary abatement,

in which case, it may either be: (a) a nuisance per se, when it affects the immediate safety of
persons and property, which may be summarily abated under the undefined law of
necessity;36 or, (b) a nuisance per accidens, 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;"37 it may only be so proven in a hearing conducted for that purpose and may not be
summarily abated without judicial intervention.38

In the case at bar, none of the tribunals below made a factual finding that the basketball ring was
a nuisance per se that is susceptible to a summary abatement. And based on what appears in the
records, it can be held, at most, as a mere nuisance per accidens, for it does not pose
an immediate effect upon the safety of persons and property, the definition of a nuisance per se.
Culling from examples cited in jurisprudence, it is unlike a mad dog on the loose, which may be
killed on sight because of the immediate danger it poses to the safety and lives of the people; nor
is it like pornographic materials, contaminated meat and narcotic drugs which are inherently
pernicious and which may be summarily destroyed; nor is it similar to a filthy restaurant which
may be summarily padlocked in the interest of the public health.39 A basketball ring, by itself,
poses no immediate harm or danger to anyone but is merely an object of recreation. Neither is it,
by its nature, injurious to rights of property, of health or of comfort of the community and, thus,
it may not be abated as a nuisance without the benefit of a judicial hearing.40

But even if it is assumed, ex gratia argumenti, that the basketball ring was a nuisance per se, but
without posing any immediate harm or threat that required instantaneous action, the destruction
or abatement performed by petitioners failed to observe the proper procedure for such an action
which puts the said act into legal question.

Under Article 700 of the Civil Code, the abatement, including one without judicial proceedings,
of a public nuisance is the responsibility of the district health officer. Under Article 702 of the
Code, the district health officer is also the official who shall determine whether or not abatement,
without judicial proceedings, is the best remedy against a public nuisance. The two articles do
not mention that the chief executive of the local government, like the Punong Barangay, is
authorized as the official who can determine the propriety of a summary abatement.

Further, both petitioner Cruz, as Punong Barangay, and petitioner Dela Cruz, as Barangay
Tanod, claim to have acted in their official capacities in the exercise of their powers under the
general welfare clause of the Local Government Code. However, petitioners could cite no
barangay nor city ordinance that would have justified their summary abatement through the
exercise of police powers found in the said clause. No barangay nor city ordinance was violated;
neither was there one which specifically declared the said basketball ring as a nuisance per
se  that may be summarily abated. Though it has been held that a nuisance per se may be abated
via an ordinance, without judicial proceedings,41 We add that, in the case at bar, petitioners were
required to justify their abatement via such an ordinance because the power they claim to have
exercised – the police power under the general welfare clause – is a power exercised by the
government mainly through its legislative, and not the executive, branch. The prevailing
jurisprudence is that local government units such as the provinces, cities, municipalities and
barangays exercise police power through their respective legislative bodies.42

The general welfare clause provides for the exercise of police power for the attainment or
maintenance of the general welfare of the community. The power, however, is exercised by the
government through its legislative branch by the enactment of laws regulating those and other
constitutional and civil rights.43 Jurisprudence defines police power as the plenary power vested
in the legislature to make statutes and ordinances to promote the health, morals, peace,
education, good order or safety and general welfare of the people.44 The Latin maxim is salus
populi est suprema lex (the welfare of the people is the supreme law).45 Police power is vested
primarily with the national legislature, which may delegate the same to local governments
through the enactment of ordinances through their legislative bodies (the sanggunians).46 The so-
called general welfare clause, provided for in Section 16 of the Local Government Code,
provides for such delegation of police power, to wit:

Section 16. General Welfare. Every local government unit shall exercise the powers expressly
granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or
incidental for its efficient and effective governance, and those which are essential to the
promotion of the general welfare. Within their respective territorial jurisdictions, local
government units shall ensure and support, among other things, the preservation and enrichment
of culture, promote health and safety, enhance the right of the people to a balanced ecology,
encourage and support the development of appropriate and self-reliant scientific and
technological capabilities, improve public morals, enhance economic prosperity and social
justice, promote full employment among their residents, maintain peace and order, and preserve
the comfort and convenience of their inhabitants.

Flowing from this delegated police power of local governments, a local government unit like
Barangay 848, Zone 92 in which petitioners were public officials, exercises police power
through its legislative body, in this case, its Sangguniang Barangay.47 Particularly, the
ordinances passed by the sanggunian  partly relate to the general welfare of the barangay, as also
provided for by the Local Government Code as follows:

Section 391. Powers, Duties, and Functions.  –

(a) The sangguniang barangay, as the legislative body of the barangay, shall:

(1) Enact ordinances as may be necessary to discharge the responsibilities

conferred upon it by law or ordinance and to promote the general welfare of the
inhabitants therein; (emphasis supplied)

Even the powers granted to the punong barangay consist mainly of executing only those laws
and ordinances already enacted by the legislative bodies, including the said official's
own sangguniang barangay, to wit:

Section 389. Chief Executive: Powers, Duties, and Functions. –

(a) The punong barangay, as the chief executive of the barangay government, shall
exercise such powers and perform such duties and functions, as provided by this Code
and other laws.

(b) For efficient, effective and economical governance, the purpose of which is the
general welfare of the barangay and its inhabitants pursuant to Section 16 of this Code,
the punong barangay shall:

(1) Enforce all laws and ordinances which are applicable within the barangay;

xxxx

(3) Maintain public order in the barangay and, in pursuance thereof, assist the
city or municipal mayor and the sanggunian members in the performance of their
duties and functions;

xxxx

(14) Promote the general welfare of the barangay;

(15) Exercise such other powers and perform such other duties and functions as
may be prescribed by law or ordinance.48

Clearly, the complete destruction of the basketball ring by the petitioners is justified neither by
law or ordinance nor even by equity or necessity, which makes the act illegal and petitioners
liable. And even as an action to maintain public order, it was done excessively and was
unjustified. Where a less damaging action, such as the mere padlocking, removal or confiscation
of the ring would have sufficed, petitioners resorted to the drastic measure of completely
destroying and rendering as unusable the said ring, which was a private property, without due
process. Such an act went beyond what the law required and, in being so, it tarnished the image
and integrity of the offices held by petitioners and diminished the public's confidence in the legal
system. Petitioners who were public officials should not have been too earnest at what they
believed was an act of restoring peace and order in the community if in the process they would
end up disturbing it themselves. They cannot break the law that they were duty-bound to enforce.
Although the Court bestows sympathy to the numerous constituents who allegedly complained
against the basketball court to petitioners, it cannot legally agree with the methods employed by
the said officials. Their good intentions do not justify the destruction of private property without
a legal warrant, because the promotion of the general welfare is not antithetical to the
preservation of the rule of law.49 Unlike the examples cited earlier of a mad dog on the loose,
pornography on display or a filthy restaurant, which all pose immediate danger to the public and,
therefore, could be addressed by anyone on sight, a basketball ring as a nuisance poses no such
urgency that could have prevented petitioners from exercising any form of deliberation or
circumspection before acting on the same.

Petitioners do not claim to have acted in their private capacities but in their capacities as public
officials, thus, they are held administratively liable for their acts. And even in their capacities as
private individuals who may have abated a public nuisance, petitioners come up short of the legal
requirements. They do not claim to have complied with any of the requisites laid down in Article
704 of the Civil Code, to wit:

Art. 704. Any private person may abate a public nuisance which is specially injurious to him by
removing, or if necessary, by destroying the thing which constitutes the same, without
committing a breach of the peace, or doing unnecessary injury. But it is necessary:

(1) That demand be first made upon the owner or possessor of the property to abate the
nuisance;

(2) That such demand has been rejected;

(3) That the abatement be approved by the district health officer and executed with the
assistance of the local police; and

(4) That the value of the destruction does not exceed three thousand pesos.

WHEREFORE, premises considered, the petition is DENIED. The Court of Appeals Decision

dated March 31, 2008 in CA-G.R. SP. No. 104474 is AFFIRMED.

SO ORDERED.

(8) G.R. No. 211356               September 29, 2014

CRISOSTOMO B. AQUINO, Petitioner,
vs.
MUNICIPALITY OF MALAY, AKLAN, represented by HON. MAYOR JOHN P. YAP,
SANGGUNIANG BA YAN 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.

DECISION

VELASCO, JR., J.:

Nature of the Case

Before the Court is a Petition for Review on Certiorari challenging the Decision1 and the
Resolution of the Court of Appeals (CA) in CA-G.R. SP No. 120042 dated August 13, 2013 and
February 3, 2014, respectively. The assailed rulings denied Crisostomo Aquino's Petition for
Certiorari for not being the proper remedy to question the issuance and implementation of
Executive Order No. 10, Series of 2011 (EO 10), ordering the demolition of his hotel
establishment.

The Facts

Petitioner is the president and chief executive officer of Boracay Island West Cove Management
Philippines, Inc. (Boracay West Cove). On January 7, 2010, the company applied for a zoning
compliance with the municipal government of Malay, Aklan.2 While the company was already
operating a resort in the area, the application sought the issuance of a building permit covering
the construction of a three-storey hotel over a parcel of land measuring 998 sqm. located in Sitio
Diniwid, Barangay Balagab, Boracay Island, Malay, Aklan,which is covered by a Forest Land
Use Agreement for Tourism Purposes (FLAgT) issued by the Department of Environment and
Natural Resources (DENR) in favor of Boracay West Cove.

Through a Decision on Zoning dated January 20, 2010, the Municipal Zoning Administrator
denied petitioner’s application on the ground that the proposed construction site was withinthe
"no build zone" demarcated in Municipal Ordinance 2000-131 (Ordinance).3 As provided in the
Ordinance:

SECTION 2. – Definition of Terms. Asused in this Ordinance, the following words, terms and
phrases shall mean as follows:

xxxx

(b) No Build Zone – the space twenty-five (25) meters from the edge of the mean high water
mark measured inland;

xxxx
SECTION 3. – No building or structure of any kind whether temporary or permanent shall be
allowed to be set up, erected or constructed on the beaches around the Island of Boracay and in
its offshore waters. During the conduct of special activities or special events, the Sangguniang
Bayan may, through a Resolution, authorize the Office of the Mayor to issue Special Permits for
construction of temporary structures on the beach for the duration of the special activity as
embodied in the Resolution.

In due time, petitioner appealed the denial action to the Office of the Mayor on February 1, 2010.
On May 13, 2010, petitioner followed up his appeal through a letter but no action was ever taken
by the respondent mayor. On April 5, 2011, however, a Notice of Assessment was sent to
petitioner asking for the settlement of Boracay West Cove’s unpaid taxes and other liabilities
under pain of a recommendation for closure in view of its continuous commercial operation since
2009 sans the necessaryzoning clearance, building permit, and business and mayor’s permit. In
reply, petitioner expressed willingness to settle the company’s obligations, butthe municipal
treasurer refused to accept the tendered payment. Meanwhile, petitioner continued with the
construction, expansion, and operation of the resort hotel.

Subsequently, on March 28, 2011, a Cease and Desist Order was issued by the municipal
government, enjoining the expansion of the resort, and on June 7, 2011, the Office of the Mayor
of Malay, Aklan issued the assailed EO 10, ordering the closure and demolition of Boracay West
Cove’s hotel.

EO 10 was partially implemented on June 10, 2011. Thereafter, two more instances followed
wherein respondents demolished the improvements introduced by Boracay West Cove, the most
recent of which was made in February 2014.

Alleging that the order was issued and executed with grave abuse of discretion, petitioner filed a
Petition for Certiorari with prayer for injunctive relief with the CA. He argued that judicial
proceedings should first be conducted before the respondent mayor could order the demolition of
the company’s establishment; that Boracay West Cove was granted a FLAgT by the DENR,
which bestowed the company the right to construct permanent improvements on the area in
question; thatsince the area is a forestland, it is the DENR—and not the municipality of Malay,
or any other local government unit for that matter—that has primary jurisdiction over the area,
and that the Regional Executive Director of DENR-Region 6 had officially issued an opinion
regarding the legal issues involved in the present case; that the Ordinance admits of exceptions;
and lastly, that it is the mayor who should be blamed for not issuing the necessary clearances in
the company’s favor.

In rebuttal, respondents contended that the FLAgT does not excuse the company from complying
with the Ordinance and Presidential Decree No. 1096 (PD 1096), otherwise known as the
National Building Code of the Philippines. Respondents also argued that the demolition needed
no court order because the municipal mayor has the express power under the Local Government
Code (LGC) to order the removal of illegally constructed buildings.
 Ruling of the Court of Appeals

In its assailed Decision dated August 13, 2013, the CA dismissed the petition solely on
procedural ground, i.e., the special writ of certiorari can only be directed against a tribunal,
board, or officer exercising judicial or quasi-judicial functions and since the issuance of EO 10
was done in the exercise of executive functions, and not of judicial or quasi-judicial functions,
certiorari will not lie. Instead, the proper remedy for the petitioner, according to the CA, is to file
a petition for declaratory relief with the Regional Trial Court.

Petitioner sought reconsideration but this was denied by the CA on February 3, 2014 through the
challenged Resolution. Hence, the instant petition raising arguments on both procedure and
substance.

The Issues

Stripped to the essentials, the pivotal issues in the extant case are as follows:

1. The propriety under the premises ofthe filing of a petition for certiorari instead of a
petition for declaratory relief;

a. Whether or not declaratory reliefis still available to petitioner;

b. Whether or not the CA correctly ruled that the respondent mayor was
performing neither a judicial nor quasi-judicial function when he ordered the
closure and demolition of Boracay West Cove’s hotel;

2. Whether or not respondent mayor committed grave abuse of discretion when he issued
EO 10;

a. Whether or not petitioner’s right to due process was violated when the
respondent mayor ordered the closure and demolition of Boracay West Cove’s
hotel without first conducting judicial proceedings;

b. Whether or not the LGU’s refusal to issue petitioner the necessary building
permit and clearances was justified;

c. Whether or not petitioner’s rights under the FLAgT prevail over the municipal
ordinance providing for a no-build zone; and

d. Whether or not the DENR has primary jurisdiction over the controversy, not
the LGU.

The Court’s Ruling

We deny the petition.

Certiorari, not declaratory relief, is the proper remedy

a. Declaratory relief no longer viable

Resolving first the procedural aspect of the case, We find merit in petitioner’s contention that the
special writ of certiorari, and not declaratory relief, is the proper remedy for assailing EO 10. As
provided under Sec. 1, Rule 63 of the Rules of Court:

SECTION 1. Who may file petition. – Any person interested under a deed, will, contract or other
written instrument, whose rights are affected by a statute, executive order or regulation,
ordinance or any other governmental regulation may, before breach or violation thereof, bring an
action in the appropriate Regional Trial Court to determine any question of construction or
validity arising, and for a declaration of his rights or duties, thereunder. x x x (emphasis added)

An action for declaratory relief presupposes that there has been no actual breach of the
instruments involved or of the rights arising thereunder. Since the purpose of an action for
declaratory relief is to secure an authoritative statement of the rights and obligations of the
parties under a statute, deed, or contract for their guidance in the enforcement thereof, or
compliance therewith, and not to settle issues arising from an alleged breach thereof, it may be
entertained before the breach or violation of the statute, deed or contract to which it refers. A
petition for declaratory relief gives a practical remedy for ending controversies that have not
reached the state where another relief is immediately available; and supplies the need for a form
of action that will set controversies at rest before they lead to a repudiation of obligations, an
invasion of rights, and a commission of wrongs.4

In the case at bar, the petition for declaratory relief became unavailable by EO 10’s enforcement
and implementation. The closure and demolition of the hotel rendered futile any possible
guidelines that may be issued by the trial court for carrying outthe directives in the challenged
EO 10. Indubitably, the CA erred when it ruled that declaratory relief is the proper remedy given
such a situation.

b. Petitioner correctly resorted to certiorari

On the propriety of filing a petition for certiorari, Sec. 1, Rule 65 of the Rules of Court provides:

Section 1. Petition for certiorari. — When any tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any
plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby
may file a verified petition in the proper court, alleging the facts with certainty and praying that
judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer,
and granting such incidental reliefs as law and justice may require. x x x

For certiorari to prosper, the petitioner must establish the concurrence of the following requisites,
namely:
 1. The writ is directed against a tribunal, board, or officer exercising judicial or quasi-
judicial functions;

2. Such tribunal, board, or officer has acted without or in excess of jurisdiction, or with
grave abuse of discretion amounting to lack or excess of jurisdiction; and

3. There is no appeal or any plain speedy, and adequate remedy in the ordinary course of
law.5

Guilty of reiteration, the CA immediately dismissed the Petition for Certiorari upon determining
that the first element is wanting—that respondent mayor was allegedly not exercising judicial or
quasi-judicial functions when he issued EO 10.

We are not persuaded.

The CA fell into a trapwhen it ruled that a mayor, an officer from the executive department,
exercises an executive function whenever he issues an Executive Order. This is tad too
presumptive for it is the nature of the act to be performed, rather than of the office,board, or body
which performs it, that determines whether or not a particular act is a discharge of judicial or
quasijudicial functions. The first requirement for certiorari is satisfied if the officers act judicially
in making their decision, whatever may be their public character.6

It is not essential that the challenged proceedings should be strictly and technically judicial, in
the sense in which that word is used when applied to courts of justice, but it issufficient if they
are quasi-judicial.7 To contrast, a party is said to be exercising ajudicial function where he has
the power to determine what the law is and what legal rights of the parties are, and then
undertakes to determine these questions and adjudicate upon the rights of the parties, whereas
quasi-judicial functionis "a term which applies to the actions, discretion, etc., of public
administrative officers or bodies x x x required to investigate facts or ascertain the existence of
facts, hold hearings, and draw conclusions from themas a basis for their official action and to
exercise discretion of a judicial nature."8

In the case at bench, the assailed EO 10 was issued upon the respondent mayor’s finding that
Boracay West Cove’s construction, expansion, and operation of its hotel inMalay, Aklan is
illegal. Such a finding of illegality required the respondent mayor’s exercise of quasijudicial
functions, against which the special writ of certiorari may lie. Apropos hereto is Our ruling in
City Engineer of Baguio v. Baniqued:9

There is no gainsaying that a city mayor is an executive official nor is the matter of issuing
demolition notices or orders not a ministerial one. In determining whether or not a structure is
illegal or it should be demolished, property rights are involved thereby needing notices and
opportunity to be heard as provided for in the constitutionally guaranteed right of due process. In
pursuit of these functions, the city mayor has to exercise quasi-judicial powers.
With the foregoing discussion, the CA erred in ruling that the respondent mayor was merely
exercising his executive functions, for clearly, the first requisite for the special writ has been
satisfied.

Aside from the first requisite, We likewise hold that the third element, i.e., the unavailability of a
plain, speedy,or adequate remedy, is also present herein. While it may be argued that, under the
LGC, Executive Orders issued by mayors are subject to review by provincial governors,10 this
cannot be considered as an adequate remedy given the exigencies of petitioner’s predicament. In
a litany of cases, We have held that it is inadequacy, not the mere absence of all other legal
remedies and the danger of failure of justice without the writ, that must usually determine the
propriety of certiorari. A remedy is plain, speedy and adequate ifit will promptly relieve the
petitioner from the injurious effects of the judgment, order, or resolution of the lower court or
agency. It is understood, then, that a litigant need not mark time by resorting to the less speedy
remedy of appeal in order to have an order annulled and set aside for being patently void for
failureof the trial court to comply with the Rules of Court.11

Before applying this doctrine, it must first be borne in mind that respondents in this case have
already taken measures towards implementing EO 10. In fact, substantial segments of the hotel
have already been demolished pursuant to the mayor’s directive. It is then understandable why
petitioner prayed for the issuance ofan injunctive writ––a provisional remedy that would
otherwise have been unavailable had he sought a reversal from the office of the provincial
governor of Aklan. Evidently, petitioner correctly saw the urgent need for judicial intervention
via certiorari.

In light of the foregoing, the CA should have proceeded to grab the bull by its horns and
determine the existence of the second element of certiorari––whether or not there was grave
abuse of discretion on the part of respondents.

Upon Our finding that a petition for certiorari under Rule 65 is the appropriate remedy, We will
proceed to resolve the core issues in view of the urgency of the reliefs prayed for in the petition.
Respondents did not commit grave abuse of discretion

a. The hotel’s classification as a nuisance

Article 694 of the Civil Code defines "nuisance" as any act, omission, establishment, business,
condition or property, or anything else that (1) injures or endangers the health or safety of others;
(2) annoys or offends the senses; (3) shocks, defies or disregards decency or morality; (4)
obstructs or interferes with the free passage of any public highway or street, or any body of
water; or (5) hinders or impairs the use of property.12

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 buildzones are intended
for the protection of the public because the stability ofthe ground’s 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 area’s 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,13 petitioner also argues that
respondents should have first secured a court order before proceeding with the demolition.
Preliminarily, We agree with petitioner’s 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 property’s 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: nuisanceper se and nuisanceper

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 thatwhich 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.14

In the case at bar, the hotel, in itself, cannot be considered as a nuisance per sesince this type of
nuisance is generally defined as an act, occupation, or structure, which is a nuisance at all
timesand under any circumstances, regardless of locationor surrounding.15 Here, it is merely the
hotel’s particular incident––its location––and 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.

b. Respondent mayor has the power to order the demolition of

illegal constructions

Generally, LGUs have no power to declare a particular thing as a nuisance unless such a thing is
a nuisance per se.16 So it was held in AC Enterprises v. Frabelle Properties Corp:17

We agree with petitioner’s contention that, under Section 447(a)(3)(i) of R.A. No. 7160,
otherwise known as the Local Government Code, the Sangguniang Panglungsod is empowered
to enact ordinances declaring, preventing or abating noise and other forms of nuisance. It bears
stressing, however, that the Sangguniang Bayan cannot declare a particular thing as a 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 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 hotel’s classification as a nuisance per accidens, however, We still find in this case
that the LGU may nevertheless properly order the hotel’s demolition. This is because, in the
exercise of police power and the general welfare clause,18 property rights of individuals may be
subjected to restraints and burdens in order to fulfil the objectives of the government.

Otherwise stated, the government may enact legislation that may interfere with personal liberty,
property, lawful businesses and occupations to promote the general welfare.19

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 asthe 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.20 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 agro-
industrial 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)

c. Requirements for the exercise of the power are present

i. Illegality of structures

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 Cove’s 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:

SECTION 9. – Permits and Clearances.

(a) No building or structure shall beallowed to start construction unless a Building Permit
therefore has been duly issued by the Office of the Municipal Engineer.Once issued, the building
owner or any person in charge of the construction shall display on the lot or on the building
undergoing construction a placard containing the Building Permit Number and the date of its
issue. The office of the Municipal Engineer shall not issue any building permit unless:

1. The proposed construction has been duly issued a Zoning Clearance by the Office of
the Municipal Zoning Officer;

2. The proposed construction has been duly endorsed by the Sangguniang Bayan through
a Letter of Endorsement.

(b) Only buildings/structures which has complied with all the requirements for its
construction asverified to by the Building Inspector and the Sangguniang Bayan
shall be issued a Certificate of Occupancy by the Office of the Municipal
Engineer.

(c) No Business or Mayor’s Permit shall be issued to businesses being undertaken

on buildings or structures which were not issued a certificate of Occupancy
beginning January 2001 and thereafter.

xxxx

SECTION 10. – Penalties.

xxxx

(e) Any building, structure, or contraption erected in any public place within the
Municipality of Malay such as but not limited to streets, thoroughfares, sidewalks, plazas,
beachesor in any other public place are hereby declared as nuisance and illegal
structure.Such building structure or contraption shall be demolished by the owner thereof
or any of his authorized representative within ten (10) days from receipt of the notice to
demolish. Failure or refusal on the part of the owner or any of his authorized
representative to demolish the illegal structure within the period here inabove specified
shall automatically authorize the government of the Municipality of Malay to demolish
the same, gather and keep the construction materials of the demolished structure.
(emphasis supplied)

Petitioner cannot justify his position by passing the blame onto the respondent mayor and the
latter’s 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 theapplication 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 LGU’s 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.21 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.

Alas, petitioner opted to defy the zoning administrator’s ruling. He consciously chose to violate
not only the Ordinance but also Sec. 301 of PD 1096, laying down the requirement of building
permits, which provides:

Section 301. Building Permits. No person, firm or corporation, including any agency or
instrumentality of the government shall erect, construct, alter, repair, move, convert or demolish
any building or structure or cause the same to be done without first obtaining a building permit
therefor from the Building Official assigned in the place where the subject building is located or
the building work is to be done.

This twin violation of law and ordinance warranted the LGU’s invocation of Sec. 444 (b)(3)(vi)
of the LGC, which power is separate and distinct from the power to summarily abate nuisances
per se. Under the law, insofar as illegal constructions are concerned, the mayor can, after
satisfying the requirement of due notice and hearing, order their closure and demolition.

ii. Observance of procedural due process rights

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.22 The burden is on the petitioner herein to prove that Boracay West
Cove was deprived of the opportunity to beheard 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.23 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 government’s
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 seor a nuisance per accidensbecomes immaterial. The hotelwas demolished not
exactly because it is a nuisance but because it failed to comply with the legal requirements prior
to construction. It justso happened that, in the case at bar, the hotel’s incident that qualified it as
a nuisance per accidens––its being constructed within the no build zone––further 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.

d. The FLAgT cannot prevail over the municipal ordinance and PD 1096

Petitioner next directs our attention to the following FLAgT provision:

VII. The SECOND PARTY may construct permanent and/or temporary improvements or
infrastructure in the FLAgT Area necessary and appropriate for its development for tourism
purposes pursuant to the approved SMP. "Permanent Improvements" refer to access roads, and
buildings or structures which adhere to the ground in a fixed and permanent manner. On the
other hand, "Temporary Improvements" include those which are detachablefrom the foundation
or the ground introduced by the SECOND PARTY inthe FLAgT Area and which the SECOND
PARTY may remove or dismantle upon expiration or cancellation of this AGREEMENT x x x.24

Taken in conjunction with the exceptions laid down in Sections 6 and 8 of the Ordinance,
petitioner argues that Boracay West Cove is exempted from securing permits from the LGU.
Said exceptions read:

SECTION 6. – No building or structure shall be allowed to be constructed on a slope Twenty

Five Percent (25%) or higher unless provided with soil erosion protective structures and
authorized by the Department of Environment and Natural Resources.

xxxx

SECTION 8. – No building or structure shall be allowed to be constructed on a swamp or other

water-clogged areas unless authorized by the Department of Environment and Natural
Resources.

According to petitioner, the fact that it was issued a FLAgT constitutes sufficient authorization
from the DENR to proceed with the construction of the three-storey hotel.

The argument does not persuade.

The rights granted to petitioner under the FLAgT are not unbridled. Forestlands, although under
the management of the DENR, are not exempt from the territorial application of municipal laws,
for local government units legitimately exercise their powers of government over their defined
territorial jurisdiction.

Furthermore, the conditions set forth in the FLAgT and the limitations circumscribed in the
ordinance are not mutually exclusive and are, in fact, cumulative. As sourced from Sec. 447 (a)
(5)(i) of the LGC:

Section 447.Powers, Duties, Functions and Compensation. –

(a) The sangguniang bayan, as the legislative body of the municipality, shall enact
ordinances, approve resolutions and appropriate funds for the general welfare of the
municipalityand its inhabitants pursuant to Section 16 of this Code and in the proper
exercise of the corporate powers of the municipality as provided for under Section 22 of
this Code, and shall:

xxxx

(5) Approve ordinances which shall ensure the efficient and effective delivery of the
basic services and facilities as provided for under Section 17 of this Code, and in addition
to said services and facilities, shall:

(i) Provide for the establishment, maintenance, protection, and conservation of communal
forests and watersheds, tree parks,greenbelts, mangroves, and other similar forest
development projectsx x x. (emphasis added)

Thus, aside from complying with the provisions in the FLAgT granted by the DENR, it was
incumbent on petitioner to likewise comply with the no build zone restriction under Municipal
Ordinance 2000-131, which was already in force even before the FLAgT was entered into. On
this point, it is well to stress that Sections 6 and 8 of the Ordinance do not exempt petitioner from
complying with the restrictions since these provisions adverted to grant exemptions from the ban
on constructions on slopes and swamps, not on the no build zone.

Additionally, the FLAgT does not excuse petitioner from complying with PD 1096. As correctly
pointed out by respondents, the agreement cannot and will not amend or change the law because
a legislative act cannot be altered by mere contractual agreement. Hence, petitioner has no valid
reason for its failure to secure a building permit pursuant to Sec. 301 of the National Building
Code.

e. The DENR does not have primary jurisdiction over the controversy

Lastly, in ascribing grave abuse ofdiscretion on the part of the respondent mayor, petitioner
argued that the hotel site is a forestland under the primary jurisdiction of the DENR. Assuch, the
merits of the case should have been passed upon by the agency and not by the LGU. In the
alternative, petitioner explains that even if jurisdiction over the matter has been devolved in
favor of the LGU, the DENR still has the power of review and supervision over the former’s
rulings. As cited by the petitioner, the LGC reads:

Section 17.Basic Services and Facilities. –

xxxx

(b) Such basic services and facilities include, but are not limited to, the following:

xxxx

(2) For a Municipality:

xxxx

(ii) Pursuant to national policies and subject to supervision, control and review of the DENR,
implementation of community-based forestry projects which include integrated social forestry
programs and similar projects; management and control of communal forests with an area not
exceeding fifty (50) square kilometers; establishment of tree parks, greenbelts, and similar forest
development projects. (emphasis added)

Petitioner has made much of the fact that in line with this provision, the DENR Region 6 had
issued anopinion favourable to petitioner.25 To petitioner, the adverted opinion effectively
reversed the findings of the respondent mayor that the structure introduced was illegally
constructed.

We disagree.

In alleging that the case concernsthe development and the proper use of the country’s
environment and natural resources, petitioner is skirting the principal issue, which is Boracay
West Cove's non-compliance with the permit, clearance, and zoning requirements for building
constructions under national and municipal laws. He downplays Boracay West Cove's omission
in a bid to justify ousting the LGU of jurisdiction over the case and transferring the same to the
DENR. He attempts to blow the issue out of proportion when it all boils down to whether or not
the construction of the three-storey hotel was supported by the necessary documentary
requirements.

Based on law and jurisprudence, the office of the mayor has quasijudicial powers to order the
closing and demolition of establishments.1âwphi1 This power granted by the LGC, as earlier
explained, We believe, is not the same power devolved in favor of the LGU under Sec. 17 (b )(2)
(ii), as abovequoted, which is subject to review by the DENR. The fact that the building to be
demolished is located within a forestland under the administration of the DENR is of no moment,
for what is involved herein, strictly speaking, is not an issue on environmental protection,
conservation of natural resources, and the maintenance of ecological balance, but the legality or
illegality of the structure.1âwphi1 Rather than treating this as an environmental issue then, focus
should not be diverted from the root cause of this debacle-compliance.
Ultimately, the purported power of review by a regional office of the DENR over respondents'
actions exercised through an instrumentality of an ex-parte opinion, in this case, finds no
sufficient basis. At best, the legal opinion rendered, though perhaps informative, is not
conclusive on the courts and should be taken with a grain of salt.

WHEREFORE, in view of the foregoing, the petition is hereby DENIED for lack of merit. The
Decision and the Resolution of the Court of Appeals in CA-G.R. SP No. 120042 dated August
13, 2013 and February 3, 2014, respectively, are hereby AFFIRMED.

SO ORDERED.

(9) [G.R. No. L-61311. September 21, 1987.]

FELICIDAD VILLANUEVA, FERNANDO CAISIP, ANTONIO LIANG, FELINA

MIRANDA, RICARDO PUNO, FLORENCIO LAXA, and RENE OCAMPO, Petitioners,
v. HON. MARIANO CASTAÑEDA, JR., Presiding Judge of the Court of First Instance of
Pampanga, Branch III, VICENTE A. MACALINO, Officer-in-Charge, Office of the
Mayor, San Fernando, Pampanga, Respondents.

DECISION

CRUZ, J.:

There is in the vicinity of the public market of San Fernando, Pampanga, along Mercado Street, a
strip of land measuring 12 by 77 meters on which stands a conglomeration of vendors stalls
together forming what is commonly known as a talipapa. This is the subject of the herein
petition. The petitioners claim they have a right to remain in and conduct business in this area by
virtue of a previous authorization granted to them by the municipal government. The respondents
deny this and justify the demolition of their stalls as illegal constructions on public property. At
the petitioners’ behest, we have issued a temporary restraining order to preserve the status quo
between the parties pending our decision. 1 Now we shall rule on the merits.

This dispute goes back to November 7, 1961, when the municipal council of San Fernando
adopted Resolution No. 218 authorizing some 24 members of the Fernandino United Merchants
and Traders Association to construct permanent stalls and sell in the above-mentioned place. 2
The action was protested on November 10, 1961, in Civil Case No. 2040, where the Court of
First Instance of Pampanga, Branch 2, issued a writ of preliminary injunction that prevented the
defendants from constructing the said stalls until final resolution of the controversy. 3 On
January 18, 1964, while this case was pending, the municipal council of San Fernando adopted
Resolution No. 29, which declared the subject area as "the parking place and as the public plaza
of the municipality, "4 thereby impliedly revoking Resolution No. 218, series of 1961. Four
years later, on November 2, 1968, Judge Andres C. Aguilar decided the aforesaid case and held
that the land occupied by the petitioners, being public in nature, was beyond the commerce of
man and therefore could not be the subject of private occupancy. 5 The writ of preliminary
injunction was made permanent. 6
The decision was apparently not enforced, for the petitioners were not evicted from the place; in
fact, according to them, they and the 128 other persons were in 1971 assigned specific areas or
space allotments therein for which they paid daily fees to the municipal government. 7 The
problem appears to have festered for some more years under a presumably uneasy truce among
the protagonists, none of whom made any move, for some reason that does not appear in the
record. Then, on January 12, 1982, the Association of Concerned Citizens and Consumers of San
Fernando filed a petition for the immediate implementation of Resolution No. 29, to restore the
subject property "to its original and customary use as a public plaza." 8

Acting thereon after an investigation conducted by the municipal attorney,9 respondent Vicente
A. Macalino, as officer in-charge of the office of the mayor of San Fernando, issued on June 14,
1982, a resolution requiring the municipal treasurer and the municipal engineer to demolish the
stalls in the subject place beginning July 1, 1982. 10 The reaction of the petitioners was to file a
petition for prohibition with the Court of First Instance of Pampanga, docketed as Civil Case No.
6470, on June 26, 1982. The respondent judge denied the petition on July 19, 1982, 11 and the
motion for reconsideration on August 5, 1982, 12 prompting the petitioners to come to this Court
on certiorari to challenge his decision. 13

As required, respondent Macalino filed his comment 14 on the petition, and the petitioners
countered with their reply. 15 In compliance with our resolution of February 2, 1983, the
petitioners submitted their memorandum 16 and respondent Macalino, for his part, asked that his
comment be considered his memorandum. 17 On July 28, 1986, the new officer-in-charge of the
office of the mayor of San Fernando, Paterno S. Guevarra, was impleaded in lieu of Virgilio
Sanchez, who had himself earlier replaced the original respondent Macalino. 18

After considering the issues and the arguments raised by the parties in their respective pleadings,
we rule for the respondents. The petition must be dismissed.

There is no question that the place occupied by the petitioners and from which they are sought to
be evicted is a public plaza, as found by the trial court in Civil Case No. 2040. This finding was
made after consideration of the antecedent facts as especially established by the testimony of
former San Fernando Mayor Rodolfo Hizon, who later became governor of Pampanga, that the
National Planning Commission had reserved the area for a public plaza as early as 1951. This
intention was reiterated in 1964 through the adoption of Resolution No. 29.19

It does not appear that the decision in this case was appealed or has been reversed. In Civil Case
No. 6740, which is the subject of this petition, the respondent judge saw no reason to disturb the
finding in Civil Case No. 2040 and indeed used it as a basis for his own decision sustaining the
questioned order. 20

The basic contention of the petitioners is that the disputed area is under lease to them by virtue of
contracts they had entered into with the municipal government, first in 1961 insofar as the
original occupants were concerned, and later with them and the other petitioners by virtue of the
space allocations made in their favor in 1971 for which they saw they are paying daily fees. 21
The municipal government has denied making such agreements. In any case, they argue, since
the fees were collected daily, the leases, assuming their validity, could be terminated at will, or
any day, as the claimed rentals indicated that the period of the leases was from day to day. 22

The parties belabor this argument needlessly.

A public plaza is beyond the commerce of man and so cannot be the subject of lease or any other
contractual undertaking. This is elementary. Indeed, this point was settled as early as in
Municipality of Cavite v. Rojas, 23 decided in 1915, where the Court declared as null and void
the lease of a public plaza of the said municipality in favor of a private
person.chanroblesvirtualawlibrary

Justice Torres said in that case:jgc:chanrobles.com.ph

"According to article 344 of the Civil Code: `Property for public use in provinces and in towns
comprises the provincial and town roads, the squares, streets, fountains, and public waters, the
promenades, and public works of general service supported by said towns or provinces.

"The said Plaza Soledad being a promenade for public use, the municipal council of Cavite could
not in 1907 withdraw or exclude from public use a portion thereof in order to lease it for the sole
benefit of the defendant Hilaria Rojas. In leasing a portion of said plaza or public place to the
defendant for private use the plaintiff municipality exceeded its authority in the exercise of its
powers by executing a contract over a thing of which it could not dispose, nor is it empowered so
to do.

"The Civil Code, article 1271, prescribes that everything which is not outside the commerce of
man may be the object of a contract, and plazas and streets are outside of this commerce, as was
decided by the supreme court of Spain in its decision of February 12, 1895, which says:
‘Communal things that cannot be sold because they are by their very nature outside of commerce
are those for public use, such as the plazas, streets, common lands, rivers, fountains, etc.’

"Therefore, it must be concluded that the contract, Exhibit C, whereby the municipality of Cavite
leased to Hilaria Rojas a portion of the Plaza Soledad is null and void and of no force or effect,
because it is contrary to the law and the thing leased cannot be the object of a contract."cralaw
virtua1aw library

In Muyot v. de la Fuente, 24 it was held that the City of Manila could not lease a portion of a
public sidewalk on Plaza Sta. Cruz, being likewise beyond the commerce of
man.chanrobles.com:cralaw:red

Echoing Rojas, the decision said:jgc:chanrobles.com.ph

"Appellants claim that they had obtained permit from the government of the City of Manila, to
construct booths Nos. 1 and 2, along the premises in question, and for the use of spaces where
the booths were constructed, they had paid and continued paying the corresponding rentals.
Granting this claim to be true, one should not entertain any doubt that such permit was not legal,
because the City of Manila does not have any power or authority at all to lease a portion of a
public sidewalk. The sidewalk in question, forming part of the public plaza of Sta. Cruz, could
not be a proper subject matter of the contract, as it was not within the commerce of man (Article
1347, new Civil Code, and article 1271, old Civil Code). Any contract entered into by the City of
Manila in connection with the sidewalk, is ipso facto null and ultra vires. (Municipality of Cavite
v. Roxas, Et Al., 30 Phil. 603.) The sidewalk in question was intended for and was used by the
public, in going from one place to another. `The streets and public places of the city shall be kept
free and clear for the use of the public, and the sidewalks and crossings for the pedestrians, and
the same shall only be used or occupied for other purposes as provided by ordinance or
regulation; . . ..’ (Sec. 1119, Revised Ordinances of the City of Manila.) The booths in question
served as fruit stands for their owners and often, if not always, blocked the free passage of
pedestrians who had to take the plaza itself which used to be clogged with vehicular
traffic."cralaw virtua1aw library

Exactly in point is Espiritu v. Municipal Council of Pozorrubio, 25 where the Supreme Court
declared:jgc:chanrobles.com.ph

"There is absolutely no question that the town plaza cannot be used for the construction of
market stalls, specially of residences, and that such structures constitute a nuisance subject to
abatement according to law. Town plazas are properties of public dominion, to be devoted to
public use and to be made available to the public in general. They are outside the commerce of
man and cannot be disposed of or even leased by the municipality to private parties."cralaw
virtua1aw library

Applying this well-settled doctrine, we rule that the petitioners had no right in the first place to
occupy the disputed premises and cannot insist in remaining there now on the strength of their
alleged lease contracts. They should have realized and accepted this earlier, considering that
even before Civil Case No. 2040 was decided, the municipal council of San Fernando had
already adopted Resolution No. 29, series of 1964, declaring the area as the parking place and
public plaza of the municipality.chanrobles virtual lawlibrary

It is the decision in Civil Case No. 2040 and the said resolution of the municipal council of San
Fernando that respondent Macalino was seeking to enforce when he ordered the demolition of
the stalls constructed in the disputed area. As officer-in-charge of the office of the mayor, he had
the duty to clear the area and restore it to its intended use as a parking place and public plaza of
the municipality of San Fernando, conformably to the aforementioned orders from the court and
the council. It is, therefore, not correct to say that he had acted without authority or taken the law
into his hands in issuing his order.chanrobles law library

Neither can it be said that he acted whimsically in exercising his authority for it has been
established that he directed the demolition of the stalls only after, upon his instructions, the
municipal attorney had conducted an investigation, to look into the complaint filed by the
Association of Concerned Citizens and Consumers of San Fernando. 26 There is evidence that
the petitioners were notified of this hearing, 27 which they chose to disregard. Photographs of
the disputed area, 28 which does look congested and ugly, show that the complaint was valid and
that the area really needed to be cleared, as recommended by the municipal attorney.
The Court observes that even without such investigation and recommendation, the respondent
mayor was justified in ordering the area cleared on the strength alone of its status as a public
plaza as declared by the judicial and legislative authorities. In calling first for the investigation
(which the petitioner saw fit to boycott), he was just scrupulously paying deference to the
requirements of due process, to remove all taint of arbitrariness in the action he was called upon
to take.chanrobles law library

Since the occupation of the place in question in 1961 by the original 24 stallholders (whose
number later ballooned to almost 200), it has deteriorated increasingly to the great prejudice of
the community in general. The proliferation of stalls therein, most of them makeshift and of
flammable materials, has converted it into a veritable fire trap, which, added to the fact that it
obstructs access to and from the public market itself, has seriously endangered public safety. The
filthy condition of the talipapa, where fish and other wet items are sold, has aggravated health
and sanitation problems, besides pervading the place with a foul odor that has spread into the
surrounding areas. The entire place is unsightly, to the dismay and embarrassment of the
inhabitants, who want it converted into a showcase of the town of which they can all be proud.
The vendors in the talipapa have also spilled into the street and obstruct the flow of traffic,
thereby impairing the convenience of motorists and pedestrians alike. The regular stallholders in
the public market, who pay substantial rentals to the municipality, are deprived of a sizable
volume of business from prospective customers who are intercepted by the talipapa vendors
before they can reach the market proper. On top of all these, the people are denied the proper use
of the place as a public plaza, where they may spend their leisure in a relaxed and even beautiful
environment and civic and other communal activities of the town can be
held.chanroblesvirtualawlibrary

The problems caused by the usurpation of the place by the petitioners are covered by the police
power as delegated to the municipality under the general welfare clause. 29 This authorizes the
municipal council "to enact such ordinances and make such regulations, not repugnant to law, as
may be necessary to carry into effect and discharge the powers and duties conferred upon it by
law and such as shall seem necessary and proper to provide for the health and safety, promote the
prosperity, improve the morals, peace, good order, comfort, and convenience of the municipality
and the inhabitants thereof, and for the protection of property therein." This authority was validly
exercised in this case through the adoption of Resolution No. 29, series of 1964, by the
municipal council of San Fernando.chanrobles virtual lawlibrary

Even assuming a valid lease of the property in dispute, the resolution could have effectively
terminated the agreement for it is settled that the police power cannot be surrendered or
bargained away through the medium of a contract. 30 In fact, every contract affecting the public
interest suffers a congenital infirmity in that it contains an implied reservation of the police
power as a postulate of the existing legal order. 31 This power can be activated at any time to
change the provisions of the contract, or even abrogate it entirely, for the promotion or protection
of the general welfare. Such an act will not militate against the impairment clause, which is
subject to and limited by the paramount police power. 32

We hold that the respondent judge did not commit grave abuse of discretion in denying the
petition for prohibition. On the contrary, he acted correctly in sustaining the right and
responsibility of the mayor to evict the petitioners from the disputed area and clear it of all the
structures illegally constructed therein.

The Court feels that it would have been far more amiable if the petitioners themselves,
recognizing their own civic duty, had at the outset desisted from their original stance and
withdrawn in good grace from the disputed area to permit its peaceful restoration as a public
plaza and parking place for the benefit of the whole municipality. They owned this little sacrifice
to the community in general, which has suffered all these many years because of their
intransigence. Regrettably, they have refused to recognize that in the truly democratic society,
the interests of the few should yield to those of the greater number in deference to the principles
that the welfare of the people is the supreme law and overriding purpose. We do not see any
altruism here. The traditional ties of sharing are absent here. What we find, sad to say, is a
cynical disdaining of the spirit of "bayanihan", a selfish rejection of the cordial virtues of
"pakikisama" and "pagbibigayan" which are the hallmarks of our people.chanrobles law library

WHEREFORE, the petition is DISMISSED. The decision dated July 19, 1982, and the order
dated August 5, 1982, are AFFIRMED. The temporary restraining order dated August 9, 1982, is
LIFTED. This decision is immediately executory. Costs against the petitioners.

SO ORDERED.

(10) G.R. No. L-79303 June 20, 1989

SPOUSES ARCANGEL GENOBLAZO and ELISA NANTES and ARELI DE

FIESTA, petitioners,
vs.
HONORABLE COURT OF APPEALS, JUDGE NATIVIDAD G. ADURRU-
SANTILLAN, as the Presiding Judge of Branch XXXVIII of the Regional Trial Court of
Manila, ROMULO M. DEL ROSARIO, as City Engineer and Building Official of Manila,
CARMEN VDA. DE REYES, JAIME DE LOS REYES, PATROLMAN DOMINGO
GUILLEN and PATROLMAN EDGAR VILLANUEVA, respondents.

Pedro A. Venida for petitioners.

Manuel M. Maramba for private respondents.

CORTES, J.:

Petitioners assail the decision of the Court of Appeals (1) dismissing their petition for certiorari
and prohibition with preliminary injunction and (2) upholding the order of the respondent Judge
Natividad G. Adurru-Santillan of the Regional Trial Court denying petitioners' motion for a writ
of preliminary injunction.

The antecedent facts, as found by the respondent court, are as follows:

xxx xxx xxx

Civil Case No. 84-26196 was filed by plaintiffs (petitioners herein) on a claim of
ownership by extraordinary acquisitive prescription of lots Nos. 2520 and 2512
located at Felix Huertas St., Sta. Cruz, Manila, and the improvements thereon.
The plaintiffs also sought to enjoin the defendants (private respondents herein)
from further demolishing or destroying the remnants of the structures built on the
land, and sought recovery of actual, moral and exemplary damages, and
determination of the issue of ownership over the land. The defendants claimed
absolute ownership of the lots in question as evidenced by Transfer Certificate of
Title No. 160694 of the Register of Deeds of Manila, and relied on the regularity
and lawful issuance of the Demolition Order No. 014 S-1984 dated June 11, 1984
issued by the City Engineers' Office, Lands and Building Official. Defendants
made a counter-claim for moral damages and attorney's fees.

Upon motion of the plaintiffs, the respondent Judge issued on December 1, 1984 a
restraining order to prevent defendants from the commission of acts that will
dispossess plaintiffs of their temporary shelter, and enjoining plaintiffs from
introducing additional improvements on the land and/or expanding the facilities
existing thereon.

On January 2, 1985, defendant Reyeses, manifesting that the aforesaid Order has
been violated by plaintiffs through expansion of the makeshift "barong-barong"
by about two (2) meters of its frontage, moved to cite plaintiffs in contempt of
court. Plaintiffs did not challenge the merit of the motion, but instead filed an
urgent motion on January 10, 1985 for immediate issuance of a writ of
preliminary injunction in reiteration of their prayer in the complaint. A hearing
was conducted, at which the parties orally argued their respective positions and
sought for the filing of respective memoranda after which the case shall be
deemed submitted for resolution. The respondent Judge in an Order dated July 1,
1985, found that the evidence submitted by plaintiffs to support the claim of
continuous and uninterrupted residence in the premises since 1947 could not be
given probative value, and upheld the claim of defendant on the basis of a Torrens
Certificate of Title in its favor.

On the issue of physical possession, the Court held that defendant City Engineer
and Building Official of the City of Manila had acted within the scope of his
authority under the National Building Code and the applicable ordinances of the
City of Manila in ordering the demolition of structures found to be dangerous or
ruinous and detrimental to the life, health and safety of the community and its
members.

The respondent Judge ruled that the ownership of the defendants over the lots in
question as proven by the Transfer Certificate of Title No. 160964 of the Registry
of Deeds for Manila "is hereby confirmed", the issuance of the writ of preliminary
injunction is denied, and the case set for pre-trial on the unresolved issues on the
 physical possession of the questioned lots, and the claim for damages and
attorney's fees.

Plaintiffs did not file any motion for reconsideration of the said order, but instead
filed on August 16, 1985 an urgent ex-parte motion for disqualification on the
ground of partiality, bias and prejudice, preference and pre-judgment against
plaintiffs. On September 15, 1985, plaintiffs filed a manifestation that until after
the question of disqualification shall have been finally determined, petitioners
shall not attend any hearing or trial.

On November 11, 1985, petitioners filed the instant petition, claiming that
respondent court acted arbitrarily and capriciously and with grave abuse of
discretion amounting to want or excess of jurisdiction when it (1) issued the Order
of July 1, 1985 "without any evidence, documentary or testimonial, formally
offered, had virtually decided the case leaving only the question of damages and
attorney's fees unresolved"; and (2) issued its subsequent orders setting the case
for pre-trial despite two motions for disqualification filed against her; and (3)
ignored the two motions for inhibition.

xxx xxx xxx

[CA Decision, pp. 1-3; Rollo, pp. 11-12-A.]

As earlier stated, the respondent Court of Appeals dismissed the special civil action filed by
petitioners and held that (1) any error committed by the trial court in its factual or legal findings
is correctible by appeal and not by certiorari; (2) the trial court committed no whimsical or
capricious error in arriving at the legal conclusion that the city engineer acted within the scope of
his authority in issuing the demolition order; and (3) the failure of the judge of the trial court to
resolve the motion for her disqualification did not deprive the trial court of jurisdiction to
continue hearing the case.

As petitioner's motion for reconsideration was denied, recourse was sought in this Court. The
instant petition for review specifically points out the following as errors allegedly committed by
the respondent court:

THE COURT OF APPEALS ERRED IN FAILING TO TAKE INTO ACCOUNT THE

CONSPIRACY BETWEEN THE MANILA CITY ENGINEER AND PRIVATE
RESPONDENTS TO DESTROY AND DEMOLISH PETITIONERS' HOUSES, CARRIED
OUT IN BAD FAITH, DECEIT, AND IN UTTER DEPRIVATION OF DUE PROCESS-ALL
THESE BY DOCUMENTARY EVIDENCE.

II
THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER OF DEMOLITION
AND ITS IMPLEMENTATION WERE LEGAL AND PROPER.

III

THE COURT OF APPEALS ERRED IN DETERMINING THAT certiorari IS NOT THE

PROPER REMEDY IN THIS CASE.

IV

THE COURT OF APPEALS ERRED IN HOLDING THAT THE INHIBITION OF

RESPONDENT JUDGE WAS NOT CALLED FOR UNDER THE CIRCUMSTANCES OF
THIS CASE. [Rollo, pp. 87-88.]

1. On the first assigned error, petitioners contend that there was a conspiracy
between the public respondents City Engineer and Building Official of Manila
and the private respondents Carmen Vda. de Reyes and Jaime de los Reyes, who
are mother and son, as shown by the alleged deceptions committed by the latter
in: 1) making it appear that private respondents Carmen Vda. de Reyes and Jaime
de los Reyes were the owners not only of the lots but also of the houses; 2)
sending the order of demolition not to the petitioners who claim to be the owners
of the houses but to "Jaime de los Reyes, et al." [Rollo, p. 4.1] and, 3) alleging in
their answer to the complaint for recovery of ownership and possession of the
disputed properties that petitioners were legally and validly given notices to
vacate the premises in view of the demolition order. Petitioners insist that because
of the failure of private respondents to notify them of the order of demolition,
they were rendered "helpless and unknowing of what was going on about them"
and they were not able to resort to the remedies accorded to them by the National
Building Code Rules and Regulations [Rollo, p. 5].

Petitioners' contention of a conspiracy between the private respondents and the Manila City
Engineer to demolish their houses involves a factual matter. The well-established rule is that
findings of facts of the trial court are entitled to great respect and will not be disturbed except for
strong and cogent reasons [Mendoza v. Court of Appeals, G.R. No. L-45898, December 18,
1987, 156 SCRA 597; Vda. de Roxas v. Intermediate Appellate Court, G.R. No. 64728, July 22,
1986, 143 SCRA 77; Republic v. Intermediate Appellate Court, G.R. No. 70594, October 10,
1986, 144 SCRA 705]. Here, the petitioners' claim that private respondents committed deception
in failing to notify them of the order of demolition was not given any credence by the trial court
which found that 'what happened was their houses had been demolished through their inaction"
[Rollo, p. 47]. This is borne out by the evidence on record. Hence, although the demolition order
was addressed to "Mr. Jaime de los Reyes, et al." as owner of the property, the affected tenants
including the petitioners were duly furnished With a copy of said order [See Original Records, p.
77). Since the demolition order which was dated June 11, 1984 was carried out only on July 9,
1984, petitioners therefore had ample time to contest the said order and resort to the remedies
available to them under the National Building Code (Presidential Decree No. 1096) but this they
failed to do. The Court therefore finds no compelling reason to warrant setting aside the trial
court's findings, which were affirmed by the appellate court.

II. The next issue revolves around the order of demolition dated June 11, 1984
issued by the respondent City Engineer and Building Official of Manila on the
subject buildings or structures standing on the lots now in dispute, which were
condemned as not fit for human habitation. According to petitioners, the
demolition order was illegal since the Building Official was not authorized to
issue the same. Petitioners' position is that since the houses were also considered
as nuisances, it is the district health officer, not the Building Official who decides
on the propriety of abatement or demolition in view of the provision of Article
702 of the Civil Code which states:

Article 702. The district health officer shall determine whether or not abatement,
without judicial proceedings, is the best remedy against a public nuisance.

This contention is untenable. The issue presented before the court a quo is not really whether the
structures can be considered a nuisance under the Civil Code but whether there has been a
violation of the National Building Code so as to warrant an order for the demolition of said
structure. Here, the Building Official was authorized to issue the questioned demolition order in
view of his finding that the disputed structures are dangerous buildings and -structures within the
meaning of the National Building Code [See Rule VII, Section 3, Implementing Rules and
Regulations of the National Building Code]. This factual finding will not be disturbed by the
court absent a showing of a clear, manifest and grave abuse of discretion amounting to want of
jurisdiction [Sagun et al. v. People's Homesite and Housing Corporation, G.R. No. 44738, June
22, 1988].

Contrary to petitioners' position, the fact that the buildings in question could also constitute
nuisances under the Civil Code does not preclude the Building Official from issuing the assailed
demolition order. Indeed, the National Building Code itself provides that:

When any building or structure is found or declared to be dangerous or ruinous,

the Building Official shall order its repair, vacation or demolition depending upon
the degree of danger to life, health or safety. This is without prejudice to further
action that may be taken under the Provisions of articles 482 and 484 to 707 of
the Civil Code of the Philippines [Second paragraph of Section 214].

III. The third issue deals with the propriety of certiorari as the remedy resorted to
by the petitioners from the questioned order of the trial judge. Petitioners brought
a special civil action for certiorari to the appellate court on the ground that the
respondent trial judge committed grave abuse of discretion in issuing the order
denying the writ of preliminary injunction prayed for.

It must be borne in mind that the action of the court a quo in denying the writ was premised on
the failure of the petitioners to show that they have a right to be protected and preserved during
the pendency of the case. The trial court found without any probative value the evidence adduced
by petitioners to support their claim of ownership by acquisitive prescription through continuous
and uninterrupted residence in the premises. On the other hand, the trial court found private
respondents' claim of ownership based on a deed of sale executed in their favor on February
22,1984 by Pilipinas Bank tenable [See Rollo, p. 15 et seq.] In the aforesaid contract of sale,
Pilipinas Bank conveyed to private respondents the ownership of the disputed lots, Lot Nos.
2520 and 2512, among other lots, and "all the buildings and improvements existing thereon and
belonging to the VENDOR" [Id. at p. 17]. Accordingly, the trial court held that:

Rather, it is defendants (private respondents herein) who have demonstrated the attribute of
ownership through the registration of the deed of conveyance over the lots and subsequent
issuance of transfer certificate of title in favor of defendants which could not have been made
without first paying the real estate taxes by them. The jus disponendi as an element of ownership
was never questioned by the plaintiffs. These negate the claim of plaintiffs that their possession
of the lots would ripen into ownership by prescription. The title of defendants obtained under the
Torrens System is indefeasible and no title to registered land in derogation to that of the
registered owner shall be acquired by prescription or adverse possession.

xxx xxx xxx

[Order of the RTC; Rollo, p. 46.]

Petitioners however insist that the following allegations in the answer (to the
complaint) dated September 26, 1984, prepared and filed by the same counsel for
the private respondents, Atty. Manuel M. Maramba, constitute "judicial
admissions" [Section 2, Rule 129 of the Revised Rules of Court] and therefore do
not require proof":

xxx xxx xxx

2. That defendants hereby specifically deny the allegations in paragraph III of the
complaint, the truth of the matter is that plaintiffs' structures are not of strong
materials as alleged .... (page 1, lines 31-34; Emphasis supplied).

xxx xxx xxx

[Brief for the Petitioners, p. 8; Rollo, p. 94.]

Petitioners' contention is untenable. The phraseology used by the respondents does not at all
connote that they are acknowledging the petitioners as owners of the demolished structures. On
the other hand, petitioners, as tenants of the former owner of the property which was Pilipinas
Bank, cannot deny the title of the private respondents which passed to the latter by virtue of the
deed of absolute sale dated February 22, 1984 [Rule 131, Section 3 (b), Revised Rules of Court].
Contrary to petitioners' stand, the negation and avoidance of warranty contained in said deed
does not refer to ownership but only to physical possession as can be gleaned from its clear
terms:
 The VENDOR does not warrant absolute and complete physical possession of the
premises. It is understood and agreed that the VENDEES accept the premises
subject to any and all lease contracts, verbal and otherwise, which may be
outstanding ... A list of tenants or persons staying on the premises is hereto
attached and marked Annex "A" and made part hereof,

xxx xxx xxx

[Rollo, p. 17; Emphasis supplied.]

Among the tenants listed in said annex to the deed are petitioners Elisa Nantes,
wife of Arcangel Genoblazo and Areli de Fiesta. A review of the records shows
that petitioners were formally notified by Pilipinas Bank of the change of
ownership of the subject premises in a letter which states:

xxx xxx xxx

We wish to inform you that the property which you are presently occupying is
now owned by Mr. Jaime de los Reyes and Carmen Vda. de Reyes in view of the
Deed of Absolute Sale which the Bank executed in favor of the new owners.

Your rentals on the premises due and/or to become due beginning February 1984
shall therefore now be paid directly to the new owners ...

xxx xxx xxx

[Record, p. 157.]

Clearly, petitioners' claim of ownership over the subject premises was totally
unfounded.

It is a settled rule that the issuance of the writ of preliminary injunction as an ancillary or
preventive remedy to secure the rights of a party in a pending case rests upon the sound
discretion of the court taking cognizance of the case. The exercise of sound judicial discretion by
the lower court in injunctive matters should not be interfered with except in case of manifest
abuse [Yaptinchay v. Torres, G.R. No. L-26462, June 9, 1969, 28 SCRA 489]. Consequently,
since the petitioners failed to make a clear showing that the trial judge gravely abused that
discretion in denying the writ on the basis of her findings, the appellate court correctly denied the
petition for certiorari before it [Rule 65, Section 1 of the Revised Rules of Court; Tabil v.Ong,
G.R. No. L-46773, July 16, 1979, 91 SCRA 451]

IV. Finally, petitioners' contention that the respondent trial judge was disqualified
from proceeding with the trial of case is not well taken. The sole ground for
disqualification of the respondent trial judge invoked by petitioners, i.e., the
alleged partiality and prejudgment of the merits of the complaint is not among the
 legal grounds for disqualification enumerated under Section 1 of Rule 137 of the
Revised Rules of Court which provides:

Section 1. Disqualification of judges.-No judge or judicial officer shall sit in any

case in which he, or his wife or child, is pecuniarily interested as heir, legatee,
creditor or otherwise, or in which he is related to either party within the sixth
degree of consanguinity of affinity, or to counsel within the fourth degree,
computed according to the rules of the civil law, or in which he has been an
executor, administrator, guardian, trustee or counsel, or in which he has presided
in any inferior court when his ruling or decision is the subject of review, without
the written consent of all parties in interest, signed by them and entered upon the
record.

A judge may, in the exercise of his sound discretion, disqualify himself from
sitting in a case, for just or valid reasons other than those mentioned above.

While it is true that partiality and prejudgment may constitute a just or valid reason for the trial
judge to voluntarily inhibit himself from hearing the case, it is not enough that the same be
merely alleged. It is now settled that mere suspicion that a judge is partial to one of the parties to
the case is not enough; there should be evidence to prove the charge [Beltran v. Garcia, G.R. No.
L-30868, September 30, 1971, 41 SCRA 158]. In this case, no such proof of partiality and
prejudgment has been adduced.

Moreover, the trial judge acted correctly in proceeding with the case by setting it for pre-trial
since it is within her sound discretion, after her decision in favor of her own competency, to
either proceed with the trial or refrain from acting on the case until determination of the issue of
her disqualification by the appellate court [Section 2 of Rule 137 of the Revised Rules of Court;
De la Paz v. Intermediate Appellate Court, supra. at 76].

WHEREFORE, the assailed decision of the respondent Court of Appeals being in conformity
with settled law and jurisprudence, is AFFIRMED and the instant petition for certiorari is
DISMISSED for lack of merit.

SO ORDERED.
(CASE DIGEST)

Case No. 8 CRISOSTOMO B. AQUINO vs. MUNICIPALITY OF MALAY AKLAN,

G.R. No. 211356; September 29, 2014

DOCTRINE: Based on law and jurisprudence, the office of the mayor has quasi-judicial powers
to order the closing and demolition of establishments. This power granted by the LGC, as earlier
explained, We believe, is not the same power devolved in favor of the LGU under Sec. 17 (b)(2)
(ii), as above-quoted, which is subject to review by the DENR. The fact that the building to be
demolished is located within a forestland under the administration of the DENR is of no moment,
for what is involved herein, strictly speaking, is not an issue on environmental protection,
conservation of natural resources, and the maintenance of ecological balance, but the legality or
illegality of the structure. Rather than treating this as an environmental issue then, focus should
not be diverted from the root cause of this debacle compliance.

FACTS

Petitioner is the president and chief executive officer of Boracay Island West Cove Management
Philippines, Inc. (Boracay West Cove). On January 7, 2010, the company applied for a zoning
compliance with the municipal government of Malay, Aklan.2 While the company was already
operating a resort in the area, and the application sought the issuance of a building permit
covering the construction of a three-storey hotel over a parcel of land measuring 998 sqm.
located in Sitio Diniwid, Barangay Balagab, Boracay Island, Malay, Aklan, which is covered by
a Forest Land Use Agreement for Tourism Purposes (FLAgT) issued by the Department of
Environment and Natural Resources (DENR) in favor of Boracay West Cove.

Through a Decision on Zoning dated January 20, 2010, the Municipal Zoning Administrator
denied petitioner’s application on the ground that the proposed construction site was within the
“no build zone” demarcated in Municipal Ordinance 2000-131 (Ordinance).

Petitioner appealed the denial action to the Office of the Mayor but despite follow up, no action
was ever taken by the respondent mayor. A Cease and Desist Order was issued by the municipal
government, enjoining the expansion of the resort, and on June 7, 2011, the Office of the Mayor
of Malay, Aklan issued the assailed EO 10, ordering the closure and demolition of Boracay West
Cove’s hotel.

Petitioner filed a Petition for Certiorari with prayer for injunctive relief with the CA Alleging
that the order was issued and executed with grave abuse of discretion.
PETITIONER CONTENTION: 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. And the
Municipality of Malay, Aklan should have first secured a court order before proceeding with the
demolition.

RESPONDENTS CONTENTION: The demolition needed no court order because the municipal
mayor has the express power under the Local Government Code (LGC) to order the removal of
illegally constructed buildings.

ISSUE:

Whether or not a judicial proceedings be conducted first before the LGU can order the closure
and demolition of the property in question.

RULING:

Generally, LGUs have no power to declare a particular thing as a nuisance unless such a thing is
a nuisance per se.

Despite the hotel’s classification as a nuisance per accidens, however, we still find in this case
that the LGU may nevertheless properly order the hotel’s 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.

Under the law, insofar as illegal constructions are concerned, the mayor can, after satisfying the
requirement of due notice and hearing, order their closure and demolition.

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.20 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.

Case No. 9 Villanueva vs. Castaneda G.R. No. L-61311, September 2l, 1987 154 SCRA 142
(1987)

Facts: There is in the vicinity of the public market of San Fernando, Pampanga which stands a
conglomeration of vendors stalls together forming what is commonly known as a talipapa. The
petitioners claim they have a right to remain in and conduct business in this area by virtue of a
previous authorization granted to them by the municipal government. The respondents deny this
and justify the demolition of their stalls as illegal constructions on public property. Acting
thereon after an investigation conducted by the municipal attorney, respondent Macalino, issued
a resolution requiring the municipal treasurer and the municipal engineer to demolish the stalls in
the subject place. The reaction of the petitioners was to file a petition for prohibition with the
Court of First Instance of Pampanga. The respondent judge denied the petition on and the motion
for reconsideration. The basic contention of the petitioners is that the disputed area is under lease
to them by virtue of contracts they had entered into with the municipal government, first in 1961
insofar as the original occupants were concerned, and later with them and the other petitioners by
virtue of the space allocations made in their favor in 1971 for which they saw they are paying
daily fees. 21 The municipal government has denied making such agreements. In any case, they
argue, since the fees were collected daily, the leases, assuming their validity, could be terminated
at will, or any day, as the claimed rentals indicated that the period of the leases was from day to
day.

Issue: Whether the demolition of their talipapa of the petitioners in the Plaza violates their right
to Non-Impairment Clause as they pay daily rent?

Held: No, A public plaza is beyond the commerce of man and so cannot be the subject of lease or
any other contractual undertaking. This is elementary, where the Court declared as null and void
the lease of a public plaza of the said municipality in favor of a private person. The Civil Code,
article 1271, prescribes that everything which is not outside the commerce of man may be the
object of a contract, and plazas and streets are outside of this commerce, as was decided by the
supreme court of Spain in its decision of February 12, 1895, which says: “communal things that
cannot be sold because they are by their very nature outside of commerce are those for public
use, such as the plazas, streets, common lands, rivers, fountains, etc.” Applying this well-settled
doctrine, the court rule that the petitioners had no right in the first place to occupy the disputed
premises and cannot insist in remaining there now on the strength of their alleged lease contracts
and that the respondent was seeking to enforce when he ordered the demolition of the stags
constructed in the disputed area. As officer-in-charge of the office of the mayor, he had the duty
to clear the area and restore it to its intended use as a parking place and public plaza of the
municipality of San Fernando, conformably to the aforementioned orders from the court and the
council. It is, therefore, not correct to say that he had acted without authority or taken the law
into his hands in issuing his order.