Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-9069 March 31, 1915
THE MUNICIPALITY OF CAVITE, plaintiff-appellant,
vs.
HILARIA ROJAS and her husband TIUNG SIUKO, alias
SIWA, defendants-appellees.
Attorney-General Villamor for appellant.
J. Y. Pinzon for appellees.
TORRES, J.:
Appeal filed through bill of exceptions by the Attorney-General,
representing the plaintiff municipality of Cavite, from the judgment of
March 27, 1913, whereby the Honorable Herbert D. Gale, judge, dismissed
the complaint with costs against the plaintiff party, declaring that the said
municipality had no right to require that the defendants vacate the land in
question.
By an instrument dated December 5, 1911, afterwards amended on March
14, 1912, the provincial fiscal of Cavite, representing the municipality of
that name, filed a complaint in the Court of First Instance of said province
alleging that the plaintiff municipal corporation, duly organized and
constituted in accordance with Act No. 82, and as the successor to the
rights s aid entity had under the late Spanish government, and by virtue of
Act No. 1039, had exclusive right, control and administration over the
streets, lanes, plazas, and public places of the municipality of Cavite; that
the defendants, by virtue of a lease secured from the plaintiff municipality,
occupy a parcel of land 93 square meters in area that forms part o the
public plaza known under the name of Soledad, belonging to the
municipality of Cavite, the defendants having constructed thereon a house,
through payment to the plaintiff for occupation thereof of a rental of P5,58
a quarter in advance, said defendants being furthermore obligated to
vacate the leased land within sixty days subsequent to plaintiff's demand
to that effect; that the defendants have been required by the municipality
to vacate and deliver possession of the said land, but more than the sixty
days within which they having done so to date; that the lease secured
from the municipality of Cavite, by virtue whereof the defendants occupy
the land that is the subject matter of the complaint, is ultra vires and
therefore ipso facto null and void and of no force or effect, for the said
land is an integral portion of a public plaza of public domain and use, and
the municipal council of Cavite has never at any time had any power or
authority to withdraw it from public use, and to lease it to a private party
for his own use, and so the defendants have never had any right or occupy
or to retain the said land under leasehold, or in any other way, their
occupation of the parcel being furthermore illegal; and therefore prayed
that judgment be rendered declaring that possession of the sad land lies
with the plaintiff and ordering the defendants to vacate the land and
deliver possession thereof to said plaintiff, with the costs against the
defendants.
The demurrer filed to the foregoing complaint having been overruled, with
exception on the part of the defendants, in their answer of April 10, 1912,
they admitted some of the allegations contained in the complaint but
denied that the parcel of land which they occupy and to which the
complaint refers forms and integral part of Plaza Soledad, or that the lease
secured by them from the municipality of Cavite was null and void
and ultra vires, stating if they refused to vacate said land it was because
they had acquired the right of possession thereof. As a special defense
they alleged that, according to the lease, they could only be ordered to
vacate the land leased when the plaintiff municipality might need it for
decoration or other public use, which does not apply in the present case;
and in a cross-complaint they alleged that on the land which is the subject
matter of the complaint the defendants have erected a house of strong
materials, assessed at P3,000, which was constructed under a license
secured from the plaintiff municipality; that if they should be ordered to
vacate the said land they would suffer damages to the extent of P3,000,
wherefore they prayed that they be absolved from the complaint, or in the
contrary case that the plaintiff be sentenced to indemnify them in the sum
of P3,000 as damages, and to pay the costs.
After hearing of the case, wherein both parties submitted parol and
documentary evidence, the court rendered the judgment that he been
mentioned, whereto counsel for the municipality excepted and in writing
asked for a reopening of the case and the holding of a new trial. This
motion was denied, with exception on the part of the appellant, and the
forwarded to the clerk of this court.
It is duly proven in the record that, upon presentation of an application by
Hilaria Rojas, he municipal council of Cavite by resolution No. 10, dated
July 3, 107, Exhibit C, leased to the said Rojas some 70 or 80 square
meters of Plaza Soledad, on condition that she pay rent quarterly in
advance according to the schedule fixed in Ordinance No. 43, land within
sixty days subsequent to notification to that effect. The record shows
(receipts, Exhibit 1) that she has paid the land tax on the house erected
on the lot.
The boundary line between the properties of the municipality of Cavite and
the naval reservation, as fixed in Act No. 1039 of the Philippine
Commission, appears in the plan prepared by a naval engineer and
submitted as evidence by the plaintiff, Exhibit C of civil case No. 274 of the
Cavite court and registered in this court as No. 9071. According to said
plan, defendant's house is erected on a plat of ground that forms part of
the promenade called Plaza Soledad, and this was also so proven by the
testimony of the plaintiff's witnesses.
By section 3 of the said Act No. 1039, passed January 12, 1904, the
Philippine Commission granted to the municipality of Cavite all the land
included in the tract called Plaza Soledad. In the case of Nicolas vs. Jose (6
Phil. Rep., 589), wherein the municipality of Cavite, represented by its
president Catalino Nicolas, sought inscription in its name of the land
comprised in the said Palza Soledad, with objection on the part of Maria
Jose et al. who is sought that inscription be decreed in their name of the
parcels of land in this plaza occupied by them, this court decided that
neither the municipality nor the objectors were entitled to inscription, for
with respect to the objectors said plaza belonged to the municipality of
Cavite and with respect to the latter the said Plaza Soledad was not
transferable property of that municipality to be inscribed in its name,
because he intention of Act No. 1039 was that the said plaza and other
places therein enumerated should be kept open for public transit; herefore
there can be no doubt that the defendant has no right to continue to
occupy the land of the municipality leased by her, for it is an integral
portion of Plaza Soledad, which if for public use and is reserved for the
common benefit.
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, articles 1271, prescribes that everything which is not
outside he 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, 195, which says: "Communal
things that cannot be soud 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 he
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. On the hyphotesis
that the said lease is null and void in accordance with the provisions of
article 1303 of the Civil Code, the defendant must restore and deliver
possession of the land described in the complaint to the municipality of
Cavite, which in its turn must restore to the said defendant all the sums it
may have received from her in the nature of rentals just as soon as she
restores the land improperly leased. For the same reasons as have been
set forth, and as said contract is null and void in its origin, it can produce
no effect and consequently the defendant is not entitled to claim that the
plaintiff municipality indemnity her for the damages she may suffer by the
removal of her house from the said land.
For all the foregoing reasons we must reverse the judgment appealed from
and declare, as we do declare, that the land occupied by Hilaria Rojas
forms part of the public plaza called Soledad, and as the lease of said
parcel of land is null and void, we order the defendant to vacate it and
release the land in question within thirty days, leaving it cleared as it was
before hr occupation. There is no ground for the indemnity sought in the
nature of damages, but the municipality must in its turn to the defendant
the rentals collected; without finding as to the costs. So ordered.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 170757 November 28, 2011
PACIFICO M. VALIAO, for himself and in behalf of his co-heirs
LODOVICO, RICARDO, BIENVENIDO, all Surnamed VALIAO and
NEMESIO M. GRANDEA, Petitioners,
vs.
REPUBLIC OF THE PHILIPPINES, MACARIO ZAFRA, and MANUEL
YUSAY, Respondents,
DECISION
PERALTA, J.:
Before this Court is a petition for review on certiorari under Rule 45 of the
Rules of Court seeking to set aside the Decision 1 and Resolution2 of the
Court of Appeals (CA) in CA-G.R. CV No. 54811, which reversed the
Decision3 of the Regional Trial Court (RTC) of Kabankalan, Negros
Occidental, Branch 61, in Land Registration Case No. 03, granting
petitioners' application for registration of title over a parcel of land located
in Ilog, Negros Occidental.
The factual milieu of this case is as follows:
On August 11, 1987, petitioners4 Pacifico, Lodovico, Ricardo, Bienvenido,
all surnamed Valiao, and Nemesio Grandea filed with the RTC of
Kabankalan, Negros Occidental an application for registration of a parcel of
land with an area of 504,535 square meters, more or less, situated in
Barrio Galicia, Municipality of Ilog, Negros Occidental.
On June 20, 1988, private oppositors Macario Zafra and Manuel Yusay filed
their Motion to Dismiss the application on the following grounds: (1) the
land applied for has not been declared alienable and disposable; (2) res
judicata has set in to bar the application for registration; and (3) the
application has no factual or legal basis.
On August 24, 1988, the Republic of the Philippines (Republic), through
the Office of the Solicitor General (OSG), opposed the application for
registration on the following grounds, among others: that neither the
applicants nor their predecessors-in-interest had been in open, continuous,
exclusive and notorious possession and occupation of the land in question
since June 12, 1945 or prior thereto; that the muniment/s of title and/or
the tax declaration/s and tax payments/receipts of applicants, if any,
attached to or alleged in the application, do/es not constitute competent
and sufficient evidence of a bona fide acquisition of the land applied for or
of their open, continuous, exclusive and notorious possession and
occupation in the concept of owner, since June 12, 1945 or prior thereto;
that the parcel of land applied for is a portion of public domain belonging
to the Republic, which is not subject to private appropriation; and that the
present action is barred by a previous final judgment in a cadastral case
prosecuted between the same parties and involving the same parcel of
land.
On July 3, 1989, the RTC denied private oppositors' Motion to Dismiss.
Trial thereafter ensued.
In support of their application for registration, petitioners alleged that they
acquired the subject property in 1947, upon the death of their uncle Basilio
Millarez (Basilio), who purchased the land from a certain Fermin Payogao,
pursuant to a Deed of Sale5 dated May 19, 1916 entirely handwritten in
Spanish language. Basilio possessed the land in question from May 19,
1916 until his death in 1947. Basilio's possession was open, continuous,
peaceful, adverse, notorious, uninterrupted and in the concept of an
owner. Upon Basilio's death, the applicants as co-heirs possessed the said
land until 1966, when oppositor Zafra unlawfully and violently
dispossessed them of their property, which compelled them to file
complaints of Grave Coercion and Qualified Theft against Zafra. In support
of their claim of possession over the subject property, petitioners
submitted in evidence Tax Declaration No. 9562 6 dated September 29,
1976 under the names of the heirs of Basilio Millarez.
The RTC, in its Decision dated December 15, 1995, granted petitioners'
application for registration of the subject property, the dispositive portion
of which states:
WHEREFORE, in view of the foregoing, this Court hereby orders and
decrees registration of Lot No. 2372 subject of the present proceedings
and the registration of title thereto, in favor of the applicants, who are
declared the true and lawful owners of said Lot No. 2372, except applicant
Lodovico Valiao, who sold his right to Macario Zafra.
Upon the finality of this decision, let the corresponding decree of
registration and Certificate of Title be issued in the name of the applicants,
Heirs of Basilio Millarez, namely: Pacifico Valiao, Ricardo Valiao,
Bienvenido Valiao and Nemesio Grandea, subject to the rights of private
oppositors, Macario Zafra and Manuel Yusay over said lot whose fishpond
permits are declared VALID and will expire on December 31, 2003.
No costs.
SO ORDERED.7
Aggrieved by the Decision, the private oppositors and the Republic,
through Assistant Prosecutor Josue A. Gatin, filed an appeal with the CA,
which reversed the trial court's findings in its Decision dated June 23,
2005. The CA ruled that the classification of lands of the public domain is
an exclusive prerogative of the executive department of the government
and in the absence of such classification, the lands remain as unclassified
until it is released therefrom and rendered open to disposition. Further,
there exists a prior cadastral case involving the same parties herein and
the same Lot No. 2372, which ruled that Lot No. 2372 belongs to the
Republic. The CA held that such judgment constitutes res judicata that
bars a subsequent action for land registration. It also ruled that the
subject property is part of the inalienable land of the public domain and
petitioners failed to prove that they and their predecessors-in-interest had
been in open, continuous, exclusive and notorious possession of the land
in question since June 12, 1945 or earlier. The dispositive portion of the
decision reads:
WHEREFORE, premises considered, the instant appeal is GRANTED.
Accordingly, We REVERSE the Decision dated December 15, 1995 of the
Regional Trial Court, DENY the application for registration of title filed by
petitioners-appellees, DECLARE as moot and academic any and all claims
of private oppositors-appellants over Lot No. 2372, and DECLARE the
subject parcel of land to be inalienable and indisposable land belonging to
the public domain.
SO ORDERED.8
Petitioners filed a motion for reconsideration, which was denied by the CA
in a Resolution dated November 17, 2005. Hence, the present petition with
the following issues:
I possession over the subject lot applied for had been open, peaceful,
WHETHER OR NOT LOT NO. 2372 OF THE ILOG CADASTRE IS
ALIENABLE AND DISPOSABLE LAND OF THE PUBLIC DOMAIN.
II
WHETHER OR NOT THE CLAIM OF PRESCRIPTION BY THE
APPLICANT WILL LIE ON LOT NO. 2372.
III
WHETHER OR NOT THE DECISION OF THE COURT OF APPEALS IN
CAD. CASE NO. 23, ENTITLED LODOVICO VALIAO, ET, AL., VS.
MACARIO ZAFRA, ET, AL., AC G.R. NO. CV-68873, CONSTITUTES
RES JUDICATA AS FAR AS THIS APPLICATION FOR REGISTRATION
IS CONCERNED.
IV
WHETHER OR NOT THE ALLEGED POSSESSION OF THE
APPLICANTS THROUGH THEIR PREDECESSORS-IN-INTEREST IS
SUFFICIENT TO SUSTAIN THEIR CLAIM FOR PRESCRIPTION.9
Petitioners claim that Lot No. 2372 is an alienable and disposable portion
of the public domain. The possession of applicants' predecessors-in
interest since 1916 until 1966 had been open, continuous and
uninterrupted; thus, converting the said land into a private land. The
subject lot had already become private in character in view of the length of
time the applicants and their predecessors-in-interest had possessed the
subject lot, which entitles them to the confirmation of their title.
Petitioners further claim that prior dismissal in a cadastral proceeding does
not constitute res judicata in a subsequent application for registration of a
parcel of land.
In its Comment, the OSG submits that the issues to be resolved in the
present petition, i.e., whether Lot No. 2372 is alienable and disposable
land of the public domain and whether petitioners have the right to have
the said property registered in their name through prescription of time are
questions of fact, which were already passed upon by the CA and no
longer reviewable by the Court, since findings of fact of the CA, when
supported by sufficient evidence, are conclusive and binding on the
parties. The OSG further claims that petitioners failed to prove that the
subject lot is part of the alienable and disposable portion of the public
domain and that petitioners' application for land registration is already
barred by a prior decision in a cadastral case. Lastly, the OSG asserts that
petitioners did not present sufficient evidence to prove that their
exclusive, continuous and adverse.
Anent the propriety of filing a petition for review under Rule 45 of the
Rules of Court, the principle is well-established that this Court is not a trier
of facts and that only questions of law may be raised. The resolution of
factual issues is the function of the lower courts whose findings on these
matters are received with respect and are, as a rule, binding on this Court.
This rule, however, is subject to certain exceptions. One of these is when
the findings of the appellate court are contrary to those of the trial
court.10 Due to the divergence of the findings of the CA and the RTC, the
Court will now re-examine the facts and evidence adduced before the
lower courts.
Section 14 (1) of Presidential Decree No. (PD) 1529, otherwise known as
the Property Registration Decree provides:
SEC. 14. Who may apply. - The following persons may file in the proper
Court of First Instance an application for registration of title to land,
whether personally or through their duly-authorized representatives:
(1) Those who by themselves or through their predecessors-in-interest
have been in open, continuous, exclusive and notorious possession and
occupation of alienable and disposable lands of the public domain under a
bona fide claim of ownership since June 12, 1945, or earlier.
From the foregoing, petitioners need to prove that: (1) the land forms part
of the alienable and disposable land of the public domain; and (2) they, by
themselves or through their predecessors-in-interest, have been in open,
continuous, exclusive, and notorious possession and occupation of the
subject land under a bona fide claim of ownership from June 12, 1945 or
earlier.11 These the petitioners must prove by no less than clear, positive
and convincing evidence.12
Under the Regalian doctrine, which is embodied in our Constitution, all
lands of the public domain belong to the State, which is the source of any
asserted right to any ownership of land. All lands not appearing to be
clearly within private ownership are presumed to belong to the State.
Accordingly, public lands not shown to have been reclassified or released
as alienable agricultural land or alienated to a private person by the State
remain part of the inalienable public domain. 13 Unless public land is shown
to have been reclassified as alienable or disposable to a private person by
the State, it remains part of the inalienable public domain. Property of the
public domain is beyond the commerce of man and not susceptible of
private appropriation and acquisitive prescription. Occupation thereof in
the concept of owner no matter how long cannot ripen into ownership and
be registered as a title.14 The burden of proof in overcoming the
presumption of State ownership of the lands of the public domain is on the
person applying for registration (or claiming ownership), who must prove
that the land subject of the application is alienable or disposable. To
overcome this presumption, incontrovertible evidence must be established
that the land subject of the application (or claim) is alienable or
disposable.15
There must be a positive act declaring land of the public domain as
alienable and disposable. To prove that the land subject of an application
for registration is alienable, the applicant must establish the existence of a
positive act of the government, such as a presidential proclamation or an
executive order; an administrative action; investigation reports of Bureau
of Lands investigators; and a legislative act or a statute. The applicant
may also secure a certification from the government that the land claimed
to have been possessed for the required number of years is alienable and
disposable.16
No such evidence was offered by the petitioners to show that the land in
question has been classified as alienable and disposable land of the public
domain. In the absence of incontrovertible evidence to prove that the
subject property is already classified as alienable and disposable, we must
consider the same as still inalienable public domain. 17 Verily, the rules on
the confirmation of imperfect title do not apply unless and until the land
subject thereof is released in an official proclamation to that effect so that
it may form part of the disposable agricultural lands of the public
domain.1âwphi1
With respect to the existence of a prior cadastral case, it appears that on
July 11, 1966, the petitioners filed in Cadastral Case No. 23 of the then
CFI of Negros Occidental a petition to reopen the proceedings relative to
three lots, one of which is Lot No. 2372. The lower court, in its
Order18 dated October 20, 1980, held that Lot No. 2372 belongs to the
Republic. It found that after the subject lot was declared public land, it was
found to be inside the communal forest. On appeal, the CA, in its
Decision19 dated August 7, 1984, found no reversible error and affirmed
the decision of the cadastral court. Thereafter, a petition elevating the
case to this Court was dismissed for lack of merit. 20 In the present case,
the CA, in its Decision dated June 23, 2005, ruled that such judgment
constitutes res judicata that will bar a subsequent action for land
registration on the same land.
In Director of Lands v. Court of Appeals,21 the Court held that a judicial
declaration that a parcel of land is public, does not preclude even the same
applicant from subsequently seeking a judicial confirmation of his title to
the same land, provided he thereafter complies with the provisions of
Section 4822 of Commonwealth Act No. 141, as amended, and as long as
said public lands remain alienable and disposable. In the case at bar, not
only did the petitioners fail to prove that the subject land is part of the
alienable and disposable portion of the public domain, they failed to
demonstrate that they by themselves or through their predecessors-in-
interest have possessed and occupied the subject land since June 12, 1945
or earlier as mandated by the law.
It is settled that the applicant must present proof of specific acts of
ownership to substantiate the claim and cannot just offer general
statements which are mere conclusions of law than factual evidence of
possession.23 Actual possession consists in the manifestation of acts of
dominion over it of such a nature as a party would actually exercise over
his own property. 24
The testimonies of Nemesio and Pacifico as to their own and their
predecessors-in-interest's possession and ownership over the subject lot
fail to convince Us. Petitioners claim that Basilio was in possession of the
land way back in 1916. Yet no tax declaration covering the subject
property, during the period Basilio allegedly occupied the subject property,
i.e., 1916 to 1947, was presented in evidence. Other than the bare
allegations of Nemesio and Pacifico that Basilio allegedly introduced
improvements on the subject property, there is nothing in the records
which would substantiate petitioners' claim that Basilio was in possession
of Lot No. 2372 since June 12, 1945 or earlier, the period of possession
required by law. Hence, petitioners' assertion that Basilio possessed the
property in question from 1916 to 1947 is, at best, conjectural and self-
serving.
As regards petitioners' possession of the land in question from 1947 to
1966, petitioners could only support the same with a tax declaration dated
September 29, 1976. At best, petitioners can only prove possession since
said date. What is required is open, exclusive, continuous and notorious
possession by petitioners and their predecessors-in-interest, under a bona
fide claim of ownership, since June 12, 1945 or earlier.25 Petitioners failed
to explain why, despite their claim that their predecessors-in-interest have
possessed the subject properties in the concept of an owner even before
June 12, 1945, it was only in 1976 that they started to declare the same
for purposes of taxation. Moreover, tax declarations and receipts are not Corleto R. Castro for respondents.
conclusive evidence of ownership or of the right to possess land when not
supported by any other evidence. The disputed property may have been
declared for taxation purposes in the names of the applicants for
registration, or of their predecessors-in-interest, but it does not
FERNAN, J.:
necessarily prove ownership. They are merely indicia of a claim of
ownership.26
Petitioners Adriano Maneclang, et. al. filed before the then Court of First
Instance of Pangasinan, Branch XI a complaint for quieting of title over a
Evidently, since the petitioners failed to prove that (1) the subject property
certain fishpond located within the four [41 parcels of land belonging to
was classified as part of the disposable and alienable land of the public
them situated in Barrio Salomague, Bugallon, Pangasinan, and the
domain; and (2) they and their predecessors-in-interest had been in open,
annulment of Resolutions Nos. 38 and 95 of the Municipal Council of
continuous, exclusive, and notorious possession and occupation thereof
Bugallon Pangasinan. The trial court dismissed the complaint in a decision
under a bona fide claim of ownership since June 12, 1945 or earlier, their
dated August 15, 1975 upon a finding that the body of water traversing
application for confirmation and registration of the subject property under
the titled properties of petitioners is a creek constituting a tributary of the
PD 1529 should be denied.
Agno River; therefore public in nature and not subject to private
appropriation. The lower court likewise held that Resolution No. 38,
WHEREFORE, the Decision and Resolution of the Court of Appeals in CA- ordering an ocular inspection of the Cayangan Creek situated between
G.R. CV No. 54811, which reversed the Decision of the Regional Trial Court Barrios Salomague Sur and Salomague Norte, and Resolution No. 95
of Kabankalan, Negros Occidental, Branch 61, in Land Registration Case authorizing public bidding for the lease of all municipal ferries and
No. 03, is AFFIRMED. The application for registration of title filed by the fisheries, including the fishpond under consideration, were passed by
petitioners Pacifico Valiao, Lodovico Valiao, Ricardo Valiao, Bienvenido respondents herein as members of the Municipal Council of Bugallon,
Valiao, and Nemesio Grandea, over Lot No. 2372, with a total area of Pangasinan in the exercise of their legislative powers.
504,535 square meters, more or less, situated in Barrio Galicia,
Municipality of Ilog, Negros Occidental, is DENIED.
Petitioners appealed said decision to the Intermediate Appellate Court,
which affirmed the same on April 29, 1983. Hence, this petition for review
SO ORDERED. on certiorari.

Republic of the Philippines Acting on the petition, the Court required the respondents to comment
SUPREME COURT thereon. However, before respondents could do so, petitioners manifested
Manila that for lack of interest on the part of respondent Alfredo Maza, the
awardee in the public bidding of the fishpond, the parties desire to
SECOND DIVISION amicably settle the case by submitting to the Court a Compromise
Agreement praying that judgment be rendered recognizing the ownership
G.R. No. L-66575 September 30, 1986 of petitioners over the land the body of water found within their titled
properties, stating therein, among other things, that "to pursue the case,
the same will not amount to any benefit of the parties, on the other hand
ADRIANO MANECLANG, JULIETA, RAMONA, VICTOR, ANTONINA,
it is to the advantage and benefit of the municipality if the ownership of
LOURDES, TEODORO and MYRNA, all surnamed
the land and the water found therein belonging to petitioners be
MANECLANG, petitioners,
recognized in their favor as it is now clear that after the National Irrigation
vs.
Administration [NIA] had built the dike around the land, no water gets in
THE INTERMEDIATE APPELLATE COURT and ALFREDO MAZA,
or out of the land. 1
CORLETO CASTRO, SALOME RODRIGUEZ, EDUCARDO CUISON,
FERNANDO ZARCILLA, MARIANO GABRIEL, NICOMEDES CORDERO,
CLETO PEDROZO, FELIX SALARY and JOSE PANLILIO, respondents. The stipulations contained in the Compromise Agreement partake of the
nature of an adjudication of ownership in favor of herein petitioners of the
fishpond in dispute, which, as clearly found by the lower and appellate
Loreto Novisteros for petitioners.
courts, was originally a creek forming a tributary of the Agno River.
Considering that as held in the case of Mercado vs. Municipal President of
Macabebe, 59 Phil. 592 [1934], a creek, defined as a recess or arm
extending from a river and participating in the ebb and flow of the sea, is a
property belonging to the public domain which is not susceptible to private
appropriation and acquisitive prescription, and as a public water, it cannot
be registered under the Torrens System in the name of any individual
[Diego v. Court of Appeals, 102 Phil. 494; Mangaldan v. Manaoag, 38 Phil.
4551; and considering further that neither the mere construction of
irrigation dikes by the National Irrigation Administration which prevented
the water from flowing in and out of the subject fishpond, nor its
conversion into a fishpond, alter or change the nature of the creek as a
property of the public domain, the Court finds the Compromise
Agreement null and void and of no legal effect, the same being contrary to
law and public policy.
The finding that the subject body of water is a creek belonging to the
public domain is a factual determination binding upon this Court. The
Municipality of Bugallon, acting thru its duly-constituted municipal council
is clothed with authority to pass, as it did the two resolutions dealing with
its municipal waters, and it cannot be said that petitioners were deprived
of their right to due process as mere publication of the notice of the public
bidding suffices as a constructive notice to the whole world.
IN VIEW OF THE FOREGOING, the Court Resolved to set aside the
Compromise Agreement and declare the same null and void for being
contrary to law and public policy. The Court further resolved to DISMISS
the instant petition for lack of merit.
SO ORDERED.
FIRST DIVISION
[G.R. No. L-29788. August 30, 1972.]
RAFAEL S. SALAS, in his capacity as Executive Secretary; CONRADO
F. ESTRELLA, in his capacity as Governor of the Land Authority; and
LORENZO GELLA, in his capacity as Register of Deeds of
Manila, Petitioners-Appellants, v. HON. HILARION U. JARENCIO, as
Presiding Judge of Branch XXIII, Court of First Instance of Manila;
ANTONIO J. VILLEGAS, in his capacity as Mayor of the City of
Manila; and the CITY OF MANILA, Respondents-Appellees.
Solicitor General Felix V. Makasiar, Assistant Solicitor General
Antonio A. Torres, Solicitor Raul I. Goco and Magno B. Pablo &
Cipriano A. Tan, Legal Staff, Land Authority for Petitioners-
Appellants.
Gregorio A. Ejercito and Felix C. Chavez for Respondents-
Appellees.
SYLLABUS
1. POLITICAL LAW; MUNICIPAL CORPORATIONS; POWER OF THE CITY OF
MANILA AS A MUNICIPAL CORPORATION; ACQUISITION OF PROPERTY IN
PRIVATE CAPACITY. — The City of Manila could validly acquire property in
its corporate or private capacity, following the accepted doctrine on the
dual character — public and private — of a municipal corporation. And
when it acquires property in its private capacity, it acts like an ordinary
person capable of entering into contracts or making transactions for the
transmission of title or other real rights. When it comes to acquisition of
land, it must have done so under any of the modes established by law for
the acquisition of ownership and other real rights.
2. ID.; ID.; ID.; ID.; IF THERE IS NO SHOWING THAT LAND WAS
ACQUIRED WITH PRIVATE FUNDS, PRESUMPTION IS THAT STATE IS
SOURCE. — In the absence of a title deed to any land claimed by the City
of Manila as its own, showing that it was acquired with its private or
corporate funds, the presumption is that such land came from the State
upon the creation of the municipality.
3. ID.; ID.; CLASSIFICATION OF PROPERTY IN ITS POSSESSION. —
Originally the municipality owned no patrimonial property except those
that were granted by the State not for its public but for private use. Other
properties it owns are acquired in the course of the exercise of its
corporate powers as a juridical entity to which category a municipal
corporation pertains.
4. ID.; ID.; ID.; CONCEPT OF LEGUA COMUNAL EXPLAINED. — Comunal
lands or "legua comunal" came into existence when a town or pueblo was
established in this country under the laws of Spain. The municipalities of
the Philippines were not entitled, as a matter of right, to any part of the
public domain for use as communal lands. The Spanish law provided that
the usufruct of a portion of the public domain adjoining municipal territory
might be granted by the Government for communal purposes, upon proper
petition, but, until granted, no right therein passed to the municipalities,
and. in any event, the ultimate title remained in the Sovereign.
5. ID.; ID.; ID.; GENERAL RULE ON THE NATURE OF THE POSSESSION OF
LAND BY THE MUNICIPAL CORPORATION. — It may be laid down as a
general rule that regardless of the source or classification of land in the
possession of a municipality, excepting those acquired with its own funds
in its private or corporate capacity, such property is held in trust for the
State for the benefit of its inhabitants, whether it be for governmental or
proprietary purposes. It holds such lands subject to the paramount power
of the legislature to dispose of the same, for after all it owes its creation to
it as an agent for the performance of a part of its public work, the
municipality being but a subdivision or instrumentality thereof for purposes
of local administration. Accordingly, the legal situation is the same as if the
State itself holds the property and puts it to a different use.
6. ID.; ID.; ID.; LEGISLATIVE CONTROL OVER PROPERTY OF MUNICIPAL
CORPORATION; POWER OF LEGISLATURE OVER LANDS HELD BY
MUNICIPALITY IN TRUST FOR THE STATE. — Legislative control over a
municipal corporation is not absolute even when it comes to its property
devoted to public use, for such control must not be exercised to the extent
of depriving persons of their property or rights without due process of law,
or in a manner impairing the obligations of contracts. Nevertheless, when
it comes to property of the municipality which it did not acquire in its
private or corporate capacity with its own funds, the legislature can
transfer its administration and disposition to an agency of the National
Government to be disposed of according to its discretion. Here it did so in
obedience to the constitutional mandate of promoting social justice to
insure the well-being and economic security of the people.
7. ID.; ID.; ID.; LEGISLATIVE HAS WIDE DISCRETIONARY POWERS IN
CLASSIFYING STATE PROPERTY. — The act of classifying State property
calls for the exercise of wide discretionary legislative power and it should
not be interfered with by the courts.
8. ID.; ID.; ID.; PROPERTY IN CASE AT BAR IS HELD IN TRUST FOR THE
STATE. — The property subject of the litigation in the case at bar was
shown not to have been acquired by the City of Manila with its own funds
in its private or proprietary capacity. That it has in its name a registered
title is not questioned, but this title should be deemed to be held in trust
for the State as the land covered thereby was part of the territory of the
City of Manila granted by the sovereign upon its creation. That the
National Government, through the Director of Lands, represented by the
Solicitor General, in the cadastral proceedings did not contest the claim of
the City of Manila that the land is its property, does not detract from its
character as State property and in no way divests the legislature of its
power to deal with it as such, the State not being bound by the mistakes
and/or negligence of its officers.
9. ID.; ID.; ID.; ALLEGED PATRIMONIAL CHARACTER OF LAND IN
INSTANT CASE DISPROVED BY CITY’S OFFICIAL ACT. — The alleged
patrimonial character of the land under the ownership of the City of Manila
is totally belied by the City’s own official act, which is fatal to its claim
since the Congress did not do as bidden. If it were its patrimonial property
why should the City of Manila be requesting the President to make
representation to the legislature to declare it as such so it can be disposed
of in favor of the actual occupants? There could be no more blatant
recognition of the fact that said land belongs to the State and was simply
granted in usufruct to the City of Manila for municipal purposes.
10. STATUTES; PRESUMPTION IS ALWAYS IN FAVOR OF
CONSTITUTIONALITY OF A STATUTE. — It is now well established that the
presumption is always in favor of the constitutionality of a law. To declare
a law unconstitutional, the repugnancy of that law to the Constitution must
be clear and unequivocal for even if a law is aimed at the attainment of
some public good, no infringement of constitutional rights is allowed. To
strike down a law there must be a clear showing that what the
fundamental law condemns or prohibits, the statute allows it to be done.
11. ID., REPUBLIC ACT 4118 DOES NOT OPERATE AS AN EXERCISE OF
THE POWER OF EMINENT DOMAIN WITHOUT JUST COMPENSATION. —
Republic Act 4118 which "seeks to convert one parcel of land in the district
of Malate, Manila, which is reserved as communal property into disposable
or alienable property of the State and to provide its subdivision and sale to
bona fide occupants or tenants," was never intended to expropriate the
property involved but merely to confirm its character as communal land of
the State and to make it available for disposition by the National
Government: And this was done at the instance or upon the request of the
City of Manila itself. The subdivision of the land and conveyance of the
resulting subdivision lots to the occupants by Congressional authorization
does not operate as an exercise of the power of eminent domain without
just compensation in violation of Section 1, subsection (2), Article 111 of
the Constitution, but simply as a manifestation of its right and power to
deal with state property.
12. ID.; ID.; NO VIOLATION OF DUE PROCESS CLAUSE IN THE
ENACTMENT OF THE STATUTE. — It should be emphasized that the law
assailed was enacted upon formal written petition of the Municipal Board of
Manila in the form of a legally approved resolution. The certificate of title
over the property in the name of the City of Manila was accordingly
cancelled and another issued to the Land Tenure Administration after the
voluntary surrender of the City’s duplicate certificate of title by the City
Treasurer with the knowledge and consent of the City Mayor. To
implement the provisions of Republic Act No. 4118, the then Deputy
Governor of the Land Authority sent a letter, dated February 18, 1965, to
the City Mayor furnishing him with a copy of the "proposed subdivision
plan of the said lot as prepared for the Republic of the Philippines for
subdivision and resale by the Land Authority to bona fide applicants." On
March 2, 1965, the Mayor of Manila through his Executive and Technical
Adviser, acknowledged receipt of the subdivision plan and informed the
Land Authority that his Office "will interpose no objection to the
implementation of said law provided that its provisions are strictly
complied with." The foregoing sequence of events clearly indicates a
pattern of regularity and observance of due process in the reversion of the
property to the National Government. All such acts were done in
recognition by the City of Manila of the right and power of the Congress to
dispose of the land involved.
 DECISION
ESGUERRA, J.:
This is a petition for review of the decision of the Court of First Instance of
Manila, Branch XXIII, in Civil Case No. 67946, dated September 23, 1968,
the dispositive portion of which is as follows:jgc:chanrobles.com.ph
"WHEREFORE, the Court renders judgment declaring Republic Act No.
4118 unconstitutional and invalid in that it deprived the City of Manila of
its property without due process and payment of just compensation.
Respondent Executive Secretary and Governor of the Land Authority are
hereby restrained and enjoined from implementing the provisions of said
law. Respondent Register of Deeds of the City of Manila is ordered to
cancel Transfer Certificate of Title No. 80876 which he had issued in the
name of the Land Tenure Administration and reinstate Transfer Certificate
of Title No. 22547 in the name of the City of Manila which he cancelled, if
that is feasible, or issue a new certificate of title for the same parcel of
land in the name of the City of Manila." 1
The facts necessary for a clear understanding of this case are as
follows:chanrob1es virtual 1aw library
On February 24, 1919, the 4th Branch of the Court of First Instance of
Manila, acting as a land registration court, rendered judgment in Case No.
18, G.L.R.O. Record No. 111, declaring the City of Manila the owner in fee
simple of a parcel of land known as Lot No. 1, Block 557 of the Cadastral
Survey of the City of Manila, containing an area of 9,689.8 square meters,
more or less. Pursuant to said judgment the Register of Deeds of Manila on
August 21, 1920, issued in favor of the City of Manila, Original Certificate
of Title No. 4329 covering the aforementioned parcel of land. On various
dates in 1924, the City of Manila sold portions of the aforementioned
parcel of land in favor of Pura Villanueva. As a consequence of the
transactions Original Certificate of Title No. 4329 was cancelled and
transfer certificates of title were issued in favor of Pura Villanueva for the
portions purchased by her. When the last sale to Pura Villanueva was
effected on August 22, 1924, Transfer Certificate of Title No. 21974 in the
name of the City of Manila was cancelled and in lieu thereof Transfer
Certificate of Title (T.C.T.) No. 22547 covering the residue thereof known
as Lot 1-B-2-B of Block 557, with an area of 7,490.10 square meters, was
issued in the name of the City of Manila.
On September 21, 1960, the Municipal Board of Manila, presided by then
Vice-Mayor Antonio J. Villegas, adopted a resolution requesting His
Excellency, the President of the Philippines to consider the feasibility of
declaring the City property bounded by Florida, San Andres, and Nebraska
Streets, under Transfer Certificate of Title Nos. 25545 and 22547,
containing a total area of 7,450 square meters as a patrimonial property of
the City of Manila for the purpose of reselling these lots to the actual
occupants thereof. 2
The said resolution of the Municipal Board of the City of Manila was
officially transmitted to the President of the Philippines by then Vice-Mayor
Antonio J. Villegas on September 21, 1960, with the information that the
same resolution was, on the same date, transmitted to the Senate and
House of Representatives of the Congress of the Philippines. 3
During the First Session of the Fifth Congress of the Philippines, House Bill
No. 191 was filed in the House of Representatives by then Congressman
Bartolome Cabangbang seeking to declare the property in question as
patrimonial property of the City of Manila, and for other purposes. The
explanatory note of the Bill gave the grounds for its enactment, to
wit:jgc:chanrobles.com.ph
"In the particular case of the property subject of this bill, the City of Manila
does not seem to have use thereof as a public communal property. As a
matter of fact, a resolution was adopted by the Municipal Board of Manila
at its regular session held on September 21, 1960, to request the
feasibility of declaring the city property bounded by Florida, San Andres
and Nebraska Streets as a patrimonial property of the City of Manila for
the purpose of reselling these lots to the actual occupants thereof.
Therefore, it will be to the best interest of society that the said property be
used in one way or another. Since this property has been occupied for a
long time by the present occupants thereof and since said occupants have
expressed their willingness to buy the said property, it is but proper that
the same be sold to them." 4
Subsequently, a revised version of the Bill was introduced in the House of
Representatives by Congressmen Manuel Cases, Antonio Raquiza and
Nicanor Yñiguez as House Bill No. 1453, with the following explanatory
note:jgc:chanrobles.com.ph
"The accompanying bill seeks to convert one (1) parcel of land in the
district of Malate, which is reserved as communal property into a
disposable or alienable property of the State and to provide its subdivision
and sale to bona fide occupants or tenants.
"This parcel of land in question was originally an aggregate part of a piece
of land with an area of 9,689.8 square meters, more or less. . . . On
September 21, 1960, the Municipal Board of Manila in its regular session
unanimously adopted a resolution requesting the President of the
Philippines and Congress of the Philippines the feasibility of declaring this
property into disposable or alienable property of the State. There is
therefore a precedent that this parcel of land could be subdivided and sold
to bona fide occupants. This parcel of land will not serve any useful public
project because it is bounded on all sides by private properties which were
formerly parts of this lot in question.
"Approval of this bill will implement the policy of the Administration of land
for the landless and the Fifth Declaration of Principles of the Constitution,
which states that the promotion of Social Justice to insure the well-being
and economic security of all people should be the concern of the State. We
are ready and willing to enact legislation promoting the social and
economic well-being of the people whenever an opportunity for enacting
such kind of legislation arises.
In view of the foregoing consideration and to insure fairness and justice to
the present bona fide occupants thereof, approval of this Bill is strongly
urged." 5
The Bill having been passed by the House of Representatives, the same
was thereafter sent to the Senate where it was thoroughly discussed, as
evidenced by the Congressional Records for May 20, 1964, pertinent
portion of which is as follows:jgc:chanrobles.com.ph
"SENATOR FERNANDEZ: Mr. President, it will be recalled that when the
late Mayor Lacson was still alive, we approved a similar bill. But
afterwards, the late Mayor Lacson came here and protested against the
approval, and the approval was reconsidered. May I know whether the
defect in the bill which we approved, has already been eliminated in this
present bill?
"SENATOR TOLENTINO: I understand Mr. President, that has already been
eliminated, and that is why the City of Manila has no more objection to this
bill.
"SENATOR FERNANDEZ: Mr. President, in view of that manifestation and
considering that Mayor Villegas and Congressman Albert of the Fourth
District of Manila are in favor of the bill. I would not want to pretend to
know more what is good for the City of Manila.
"SENATOR TOLENTINO: Mr. President, there being no objection, I move
that we approve this bill on second reading.
"PRESIDENT PRO-TEMPORE: The bill is approved on second reading after
several Senators said aye and nobody said nay."cralaw virtua1aw library
The bill was passed by the Senate, approved by the President on June 20,
1964, and became Republic Act No. 4118. It reads as follows:chanrob1es
virtual 1aw library
Lot 1-B-2-B op Block 557 of the cadastral survey of the City of Manila,
situated in the District of Malate. City of Manila, which is reserved as
communal property, is hereby converted into disposal or alienable land of
the State, to be placed under the disposal of the Land Tenure
Administration. The Land Tenure Administration shall subdivide the
property into small lots, none of which shall exceed one hundred and
twenty square meters in area and sell the same on installment basis to the
tenants or bona fide occupants thereof and to individuals, in the order
mentioned: Provided, That no down payment shall be required of tenants
or bona fide occupants who cannot afford to pay such down payment:
Provided, further, That no person can purchase more than one lot:
Provided, furthermore, That if the tenant or bona fide occupant of any
given lot is not able to purchase the same, he shall be given a lease from
month to month until such time that he is able to purchase the lot:
Provided, still further, That in the event of lease the rentals which may be
charged shall not exceed eight per cent per annum of the assessed value
of the property leased: And provided, finally, That in fixing the price of
each lot, which shall not exceed twenty pesos per square meter, the cost
of subdivision and survey shall not be included.
"Sec. 2. Upon approval of this Act no ejectment proceedings against any
tenant or bona fide occupant of the above lots shall be instituted and any
ejectment proceedings pending in court against any such tenant or bona
fide occupant shall be dismissed upon motion of the defendant: Provided,
That any demolition order directed against any tenant or bona fide
occupant shall be lifted.
"Sec. 3. Upon approval of this Act, if the tenant or bona fide occupant is in
arrears in the payment of any rentals, the amount legally due shall be
liquidated and shall be payable in twenty-four equal monthly installments
from the date of liquidation.
"Sec. 4. No property acquired by virtue of this Act shall be transferred,
sold, mortgaged, or otherwise disposed of within a period of five years
from the date full ownership thereof has been vested in the purchaser
without the consent of the Land Tenure Administration.
"Sec. 5. In the event of the death of the purchaser prior to the complete
payment of the price of the lot purchased by him, his widow and children
shall succeed in all his rights and obligations with respect to his lot.
"Sec. 6. The Chairman of the Land Tenure Administration shall implement
and issue such rules and regulations as may be necessary to carry out the
provisions of this Act.
"Sec. 7. The sum of one hundred fifty thousand pesos is appropriated out
of any funds in the National Treasury not otherwise appropriated, to carry
out the purposes of this Act.
"Sec. 8. All laws or parts of laws inconsistent with this Act are repealed or
modified accordingly.
"Sec. 9. This Act shall take effect upon its approval.

"Approved, June 20, 1964."cralaw virtua1aw library
To implement the provisions of Republic Act No. 4118, and pursuant to the
request of the occupants of the property involved, then Deputy Governor
Jose V. Yap of the Land Authority (which succeeded the Land Tenure
Administration) addressed a letter, dated February 18, 1965, to Mayor
Antonio Villegas, furnishing him with a copy of the proposed subdivision
plan of said lot as prepared for the Republic of the Philippines for resale of
the subdivision lots by the Land Authority to bona fide applicants. 6
On March 2, 1965, the City Mayor of Manila, through his Executive and
Technical Adviser, acknowledged receipt of the proposed subdivision plan
of the property in question and informed the Land Authority that his office
would interpose no objection to the implementation of said law, provided
that its provisions be strictly complied with. 7
With the above-mentioned written conformity of the City of Manila for the
implementation of Republic Act No. 4118, the Laud Authority, thru then
Deputy Governor Jose V. Yap, requested the City Treasurer of Manila, thru
the City Mayor, for the surrender and delivery to the former of the owner’s
duplicate of Transfer Certificate of Title No. 22547 in order to obtain title
thereto in the name of the Land Authority. The request was duly granted
with the knowledge and consent of the Office of the City Mayor. 8
With the presentation of Transfer Certificate of Title No. 22547, which had
been yielded as above stated by the City authorities to the Land Authority,
Transfer Certificate of Title (T.C.T. No. 22547) was cancelled by the
Register of Deeds of Manila and in lieu thereof Transfer Certificate of Title
No. 80876 was issued in the name of the Land Tenure Administration (now
Land Authority) pursuant to the provisions of Republic Act No. 4118. 9
But due to reasons which do not appear in the record, the City of Manila
made a complete turn-about, for on December 20, 1966, Antonio J.
Villegas, in his capacity as the City Mayor of Manila and the City of Manila
as a duly organized public corporation, brought an action for injunction
and/or prohibition with preliminary injunction to restrain, prohibit and
enjoin the herein appellants, particularly the Governor of the Land
Authority and the Register of Deeds of Manila, from further implementing
Republic Act No. 4118, and praying for the declaration of Republic Act No.
4118 as unconstitutional.
With the foregoing antecedent facts, which are all contained in the partial
stipulation of facts submitted to the trial court and approved by
respondent Judge, the parties waived the presentation of further evidence
and submitted the case for decision. On September 23, 1968, judgment
was rendered by the trial court declaring Republic Act No. 4118
unconstitutional and invalid on the ground that it deprived the City of
Manila of its property without due process of law and payment of just
compensation. The respondents were ordered to undo all that had been
done to carry out the provisions of said Act and were restrained from
further implementing the same.
Two issues are presented for determination, on the resolution of which the
decision in this case hinges, to wit:chanrob1es virtual 1aw library
I. Is the property involved private or patrimonial property of the City of
Manila?
II. Is Republic Act No. 4118 valid and not repugnant to the Constitution?
I
As regards the first issue, appellants maintain that the land involved is a
communal land or "legua comunal" which is a portion of the public domain
owned by the State; that it came into existence as such when the City of
Manila, or any pueblo or town in the Philippines for that matter, was
founded under the laws of Spain, the former sovereign; that upon the
establishment of a pueblo, the administrative authority was required to
allot and set aside portions of the public domain for a public plaza, a
church site, a site for public buildings, lands to serve as common pastures
and for streets and roads; that in assigning these lands some lots were
earmarked for strictly public purposes, and ownership of these lots (for
public purposes) immediately passed to the new municipality; that in the
case of common lands or "legua comunal", there was no such immediate
acquisition of ownership by the pueblo, and the land though administered
thereby, did not automatically become its property in the absence of an
express grant from the Central Government, and that the reason for this
arrangement is that this class of land was not absolutely needed for the
discharge of the municipality’s governmental functions.
It is argued that the parcel of land involved herein has not been used by
the City of Manila for any public purpose and had not been officially
earmarked as a site for the erection of some public buildings; that this
circumstance confirms the fact that it was originally "communal" land
alloted to the City of Manila by the Central Government not because it was
needed in connection with its organization as a municipality but simply for
the common use of its inhabitants; that the present City of Manila as
successor of the Ayuntamiento de Manila under the former Spanish
sovereign merely enjoys the usufruct over said land, and its exercise of
acts of ownership by selling parts thereof did not necessarily convert the
land into a patrimonial property of the City of Manila nor divest the State
of its paramount title.
Appellants further argue that a municipal corporation, like a city is a
governmental agent of the State with authority to govern a limited portion
of its territory or to administer purely local affairs in a given political
subdivision, and the extent of its authority is strictly delimited by the grant
of power conferred by the State; that Congress has the exclusive power to
create, change or destroy municipal corporations; that even if We admit
that legislative control over municipal corporations is not absolute and
even if it is true that the City of Manila has a registered title over the
property in question, the mere transfer of such land by an act of the
legislature from one class of public land to another, without compensation,
does not invade the vested rights of the City.
Appellants finally argue that Republic Act No. 4118 has treated the land
involved as one reserved for communal use, and this classification is
conclusive upon the courts; that if the City of Manila feels that this is
wrong and its interests have been thereby prejudiced, the matter should
be brought to the attention of Congress for correction; and that since
Congress, in the exercise of its wide discretionary powers has seen fit to
classify the land in question as communal, the Courts certainly owe it to
coordinate branch of the Government to respect such determination and
should not interfere with the enforcement of the law.
Upon the other hand, appellees argue by simply quoting portions of the
appealed decision of the trial court, which read
thus:jgc:chanrobles.com.ph
"The respondents (petitioners-appellants herein) contend, among other
defenses, that the property in question is communal property. This
contention is, however, disproved by Original Certificate of Title No. 4329
issued on August 21, 1920 in favor of the City of Manila after the land in
question was registered in the City’s favor. The Torrens Title expressly
states that the City of Manila was the owner in ‘fee simple’ of the said
land. Under Sec. 38 of the Land Registration Act, as amended, the decree
of confirmation and registration in favor of the City of Manila . . . shall be
conclusive upon and against all persons including the Insular Government
and all the branches there . . . is nothing in the said certificate of title
indicating that the land was ‘communal’ land as contended by the
respondents. The erroneous assumption by the Municipal Board of Manila
that the land in question was communal land did not make it so. The
Municipal Board had no authority to do that.
"The respondents, however, contend that Congress had the power and
authority to declare that the land in question was ‘communal’ land and the
courts have no power or authority to make a contrary finding. This
contention is not entirely correct or accurate. Congress has the power to
classify ‘land of the public domain’, transfer them from one classification to
another and declare them disposable or not. Such power does not,
however, extend to properties which are owned by cities, provinces and
municipalities in their ‘patrimonial’ capacity.
"Art. 324 of the Civil Code provides that properties of provinces, cities and
municipalities are divided into properties for public use and patrimonial
property Art. 424 of the same code provides that properties for public use
consist of provincial roads, city streets, municipal streets, the squares,
fountains, public waters, promenades and public works for public service
paid for by said province, cities or municipalities. All other property
possessed by any of them is patrimonial. Tested by this criterion the Court
finds and holds that the land in question is patrimonial property of the City
of Manila.
"Respondents contend that Congress has declared the land in question to
be ‘communal’ and, therefore, such designation is conclusive upon the
courts. The Courts holds otherwise. When a statute is assailed as
unconstitutional the Courts have the power and authority to inquire into
the question and pass upon it. This has long ago been settled in Marbury
v. Madison, 2 L. ed. 60, when the United States Supreme Court speaking
thru Chief Justice Marshall held:chanrob1es virtual 1aw library
‘. . . If an act of the legislature, repugnant to the constitution, is void, does
it, notwithstanding its validity, bind the courts, and oblige them to give
effect? It is emphatically the province and duty of the judicial department
to say what the law is . . . So if a law be in opposition to the constitution;
if both the law and the constitution apply to a particular case, so that the
court must either decide that case conformable to the constitution,
disregarding the law, the court must determine which of these conflicting
rules governs the case. This is of the very essence of unconstitutional
judicial duty.’"
Appellees finally concluded that when the courts declare a law
unconstitutional it does not mean that the judicial power is superior to the
legislative power. It simply means that the power of the people is superior
to both and that when the will of the legislature, declared in statutes,
stands in opposition to that of the people, declared in the Constitution, the
judges ought to be governed by the Constitution rather than by the
statutes.
There is one outstanding factor that should be borne in mind in resolving
the character of the land involved, and it is that the City of Manila,
although declared by the Cadastral Court as owner in fee simple, has not
shown by any shred of evidence in what manner it acquired said land as its
private or patrimonial property. It is true that the City of Manila as well as
its predecessor, the Ayuntamiento de Manila, could validly acquire
property in its corporate or private capacity, following the accepted
doctrine on the dual character — public and private — of a municipal
corporation. And when it acquires property in its private capacity, it acts
like an ordinary person capable of entering into contracts or making
transactions for the transmission of title or other real rights. When it
comes to acquisition of land, it must have done so under any of the modes
established by law for the acquisition of ownership and other real rights. In
the absence of a title deed to any land claimed by the City of Manila as its
own, showing that it was acquired with its private or corporate funds, the
presumption is that such land came from the State upon the creation of
the municipality (Unson v. Lacson, Et Al., 100 Phil. 695). Originally the
municipality owned no patrimonial property except those that were
granted by the State not for its public but for private use. Other properties
it owns are acquired in the course of the exercise of its corporate powers
as a juridical entity to which category a municipal corporation pertains.
Communal lands or "legua comunal" came into existence when a town or
pueblo was established in this country under the laws of Spain (Law VII,
Title III, Book VI, Recopilacion de las Leyes de Indios). The municipalities
of the Philippines were not entitled, as a matter of right, to any part of the
public domain for use as communal lands. The Spanish law provided that
the usufruct of a portion of the public domain adjoining municipal territory
might be granted by the Government for communal purposes, upon proper
petition, but, until granted, no rights therein passed to the municipalities,
and, in any event, the ultimate title remained in the sovereign (City of
Manila v. Insular Government, 10 Phil. 327).
"For the establishment, then, of new pueblos the administrative authority
of the province, in representation of the Governor General, designated the
territory for their location and extension and the metes and bounds of the
same; and before alloting the lands among the new settlers, a special
demarcation was made of the places which were to serve as the public
square of the pueblo, for the erection of the church, and as cites for the
public buildings, among others, the municipal building or the case real, as
well as of the lands which were to constitute the common pastures, and
propios of the municipality and the streets and roads which were to
intersect the new town were laid out, . . ." (Municipality of Catbalogan v.
Director of Lands, 17 Phil. 216, 220) (Emphasis supplied)
It may, therefore, be laid down as a general rule that regardless of the
source or classification of land in the possession of a municipality,
excepting those acquired with its own funds in its private or corporate
capacity, such property is held in trust for the State for the benefit of its
inhabitants, whether it be for governmental or proprietary purposes. It
holds such lands subject to the paramount power of the legislature to
dispose of the same, for after all it owes its creation to it as an agent for
the performance of a part of its public work, the municipality being but a
subdivision or instrumentality thereof for purposes of local administration.
Accordingly, the legal situation is the same as if the State itself holds the
property and puts it to a different use (2 Mc Quilin, Municipal Corporations,
3rd Ed., p. 197, citing Monagham v. Armatage, 218 Minn. 27, 15 N.W. 2nd
241).
True it is that the legislative control over a municipal corporation is not
absolute even when it comes to its property devoted to public use, for
such control must not be exercised to the extent of depriving persons of
their property or lights without due process of law, or in a manner
impairing the obligations of contracts. Nevertheless, when it comes to
property of the municipality which it did not acquire in its private or
corporate capacity with its own funds, the legislature can transfer its
administration and disposition to an agency of the National Government to
be disposed of according to its discretion. Here it did so in obedience to the
constitutional mandate of promoting social justice to insure the well-being
and economic security of the people.
It has been held that a statute authorizing the transfer of a Municipal
airport to an Airport Commission created by the legislature, even without
compensation to the city, was not violative of the due process clause of
the American Federal Constitution. The Supreme Court of Minnessota in
Monagham v. Armatage, supra, said:jgc:chanrobles.com.ph
". . . The case is controlled by the further rule that the legislature, having
plenary control of the local municipality, of its creation and of all its affairs,
has the right to authorize or direct the expenditures of money in its
treasury, though raised, for a particular purpose, for any legitimate
municipal purpose, or to order and direct a distribution thereof upon a
division of the territory into separate municipalities . . . The local
municipality has no such vested right in or to its public funds, like that
which the Constitution protects in the individual as precludes legislative
interferences. People v. Power, 25 Ill. 187; State Board (of Education) v.
City, 56 Miss. 518. As remarked by the supreme court of Maryland in
Mayor v. Sehner, 37 Md. 180: ‘It is of the essence of such a corporation,
that the government has the sole right as trustee of the public interest, at
its own good will and pleasure, to inspect, regulate, control, and direct the
corporation, its funds, and franchises.’
"We therefore hold that c.500, in authorizing the transfer of the use and
possession of the municipal airport to the commission without
compensation to the city or to the park board, does not violate the
Fourteenth Amendment to the Constitution of the United States."cralaw
virtua1aw library
The Congress has dealt with the land involved as one reserved for
communal use (terreno comunal). The act of classifying State property
calls for the exercise of wide discretionary legislative power and it should
not be interfered with by the courts.
This brings Us to the second question as regards the validity of Republic
Act No. 4118, viewed in the light of Article III, Sections 1, subsection (1)
and (2) of the Constitution which ordain that no person shall be deprived
of his property without due process of law and that no private property
shall be taken for public use without just compensation.
II
The trial court declared Republic Act No. 4118 unconstitutional for
allegedly depriving the City of Manila of its property without due process of
law and without payment of just compensation. It is now well established
that the presumption is always in favor of the constitutionality of a law (U.
S. v. Ten Yu, 24 Phil, 1; Go Ching, Et. Al. v. Dinglasan, Et Al., 45 O.G. No.
2, pp. 703, 705). To declare a law unconstitutional, the repugnancy of that
law to the Constitution must be clear and unequivocal, for even if a law is
aimed at the attainment of some public good, no infringement of
constitutional rights is allowed. To strike down a law there must be a clear
showing that what the fundamental law condemns or prohibits, the statute
allows it to be done (Morfe v. Mutuc, Et Al., G.R. No. L-20387, Jan. 31,
1968; 22 SCRA 424). That situation does not obtain in this case as the law
assailed does not in any manner trench upon the constitution as will
hereafter be shown.
Republic Act No. 4118 was intended to implement the social justice policy
of the Constitution and the Government program of "Land for the
Landless." The explanatory note of House Bill No. 1453 which became
Republic Act No. 4118, reads in part as follows:jgc:chanrobles.com.ph
"Approval of this bill will implement the policy of the administration of ‘land
for the landless’ and the Fifth Declaration of Principles of the Constitution
which states that ‘the promotion of social justice to insure the well-being
and economic security of all people should be the concern of the State.’
We are ready and willing to enact legislation promoting the social and
economic well-being of the people whenever an opportunity for enacting
such kind of legislation arises.’"
The respondent Court held that Republic Act No. 4118, "by converting the
land in question — which is the patrimonial property of the City of Manila
into disposable alienable land of the State and placing it under the disposal
of the Land Tenure Administration — violates the provisions of Article III
(Secs. 1 and 2) of the Constitution which ordain that "private property
shall not be taken for public use without just compensation, and that no
person shall be deprived of life, liberty or property without due process of
law." In support thereof reliance is placed on the ruling in Province of
Zamboanga del Norte v. City of Zamboanga, G.R. No. 2440, March 28,
1968; 22 SCRA 1334, which holds that Congress cannot deprive a
municipality of its private or patrimonial property without due process of
law and without payment of just compensation since it has no absolute
control thereof. There is no quarrel over this rule if it is undisputed that
the property sought to be taken is in reality a private or patrimonial
property of the municipality or city. But it would be simply begging the
question to classify the land in question as such. The property, as has
been previously shown, was not acquired by the City of Manila with its own
funds in its private or proprietary capacity. That it has in its name a
registered time is not questioned, but this title should be deemed to be
held in trust for the State as the land covered thereby was part of the
territory of the City of Manila granted by the sovereign upon its creation.
That the National Government, through the Director of Lands, represented
by the Solicitor General, in the cadastral proceedings did not contest the
claim of the City of Manila that the land is its property does not detract
from its character as State property and in no way divests the legislature
of its power to deal with it as such, the state not being bound by the
mistakes and/or negligence of its officers.
One decisive fact that should be noted is that the City of Manila expressly
recognized the paramount title of the State over said land when by its
resolution of September 20, 1960, the Municipal Board, presided by then
Vice-Mayor Antonio Villegas, requested "His Excellency the President of the
Philippines to consider the feasibility of declaring the city property bounded
by Florida, San Andres and Nebraska Streets, under Transfer Certificate of
Title Nos. 25545 and 25547, containing an area of 7,450 square meters,
as patrimonial property of the City of Manila for the purpose of reselling
these lots to the actual occupants thereof ." (See Annex E, Partial
Stipulation of Facts, Civil Case No. 67945, CFI, Manila, p. 121, Record of
the Case) [Emphasis Supplied]
The alleged patrimonial character of the land under the ownership of the
City of Manila is totally belied by the City’s own official act, which is fatal to
its claim since the Congress did not do as bidden. If it were its patrimonial
property why should the City of Manila be requesting the President to
make representation to the legislature to declare it as such so it can be
disposed of in favor of the actual occupants? There could be no more
blatant recognition of the fact that said land belongs to the State and was
simply granted in usufruct to the City of Manila for municipal purposes. But
since the City did not actually use said land for any recognized public
purpose and allowed it to remain idle and unoccupied for a long time until
it was overrun by squatters, no presumption of State grant of ownership in
favor of the City of Manila may be acquiesced in to justify the claim that it
is its own private or patrimonial property (Municipality of Tigbauan v.
Director of Lands, 35 Phil. 798; City of Manila v. Insular Government, 10
Phil. 327; Municipality of Luzuriaga v. Director of Lands, 24 Phil. 193). The
conclusion of the respondent court that Republic Act No. 4118 converted a
patrimonial property of the City of Manila into a parcel of disposable land
of the State and took it away from the City without compensation is,
therefore, unfounded. In the last analysis the land in question pertains to
the State and the City of Manila merely acted as trustee for the benefit of
the people therein for whom the State can legislate in the exercise of its
legitimate powers.
Republic Act No. 4118 was never intended to expropriate the property
involved but merely to confirm its character as communal land of the State
and to make it available for disposition by the National Government: And
this was done at the instance or upon the request of the City of Manila
itself. The subdivision of the land and conveyance of the resulting
subdivision lots to the occupants by Congressional authorization does not
operate as an exercise of the power of eminent domain without just
compensation in violation of Section 1, subsection (2), Article III of the
Constitution, but simply as a manifestation of its right and power to deal
with state property.
It should be emphasized that the law assailed was enacted upon formal
written petition of the Municipal Board of Manila in the form of a legally
approved resolution. The certificate of title over the property in the name
of the City of Manila was accordingly cancelled and another issued to the
Land Tenure Administration after the voluntary surrender of the City’s
duplicate certificate of title by the City Treasurer with the knowledge and
consent of the City Mayor. To implement the provisions of Republic Act No.
4118, the then Deputy Governor of the Land Authority sent a letter, dated
February 18, 1965, to the City Mayor furnishing him with a copy of the
"proposed subdivision plan of the said lot as prepared for the Republic of
the Philippines for subdivision and resale by the Land Authority to bona
fide applicants." On March 2, 1965, the Mayor of Manila, through his
Executive and Technical Adviser, acknowledged receipt of the subdivision
plan and informed the Land Authority that his Office "will interpose no
objection to the implementation of said law provided that its provisions are
strictly complied with." The foregoing sequence of events, clearly indicate
a pattern of regularity and observance of due process in the reversion of
the property to the National Government. All such acts were done in
recognition by the City of Manila of the right and power of the Congress to
dispose of the land involved.
Consequently, the City of Manila was not deprived of anything it owns,
either under the due process clause or under the eminent domain
provisions of the Constitution. If it failed to get from the Congress the
concession it sought of having the land involved given to it as its
patrimonial property, the Courts possess no power to grant that relief.
Republic Act No. 4118 does not, therefore, suffer from any constitutional
infirmity.
WHEREFORE, the appealed decision is hereby reversed and petitioners
shall proceed with the free and untrammeled implementation of Republic
Act No. 4118 without any obstacle from the respondents. Without costs.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-26053 February 21, 1967
CITY OF MANILA, plaintiff-appellee,
vs.
GERARDO GARCIA — CARMENCITA VILLANUEVA, MODESTA
PARAYNO — NARCISO PARAYNO, JUAN ASPERAS, MARIA TABIA —
SIMEON DILIMAN, AQUILINO BARRIOS — LEONORA RUIZ,
LAUREANO DIZO, BERNABE AYUDA — LEOGARDA DE LOS SANTOS,
ISABELO OBAOB — ANDREA RIPARIP, JOSE BARRIENTOS, URBANO
RAMOS,1 ELENA RAMOS, ESTEFANIA NEPACINA, MODESTA
SANCHEZ, MARCIAL LAZARO, MARCIANA ALANO, HONORIO
BERIÑO — SEDORA ORAYLE, GLORIA VELASCO, WILARICO
RICAMATA, BENEDICTO DIAZ, ANA DEQUIZ — (MRS.) ALUNAN,
LORENZO CARANDANG, JUAN PECAYO, FELICIDAD MIRANDA —
EMIGDIO EGIPTO, defendants-appellants.
Mauricio Z. Alunan for defendants-appellants.
City Fiscal's Office for plaintiff-appellee.
SANCHEZ, J.:
Plaintiff City of Manila is owner of parcels of land, forming one compact
area, bordering Kansas, Vermont and Singalong streets in Malate, Manila,
and covered by Torrens Titles Nos. 49763, 37082 and 37558. Shortly after
liberation from 1945 to 1947, defendants entered upon these premises
without plaintiff's knowledge and consent. They built houses of second-
class materials, again without plaintiff's knowledge and consent, and
without the necessary building permits from the city. There they lived thru
the years to the present.
In November, 1947, the presence of defendants having previously been
discovered, defendants Felicidad Miranda (Emigdio Egipto), Modesta C.
Parayno, Benedicto Diaz, Laureano Dizo, Jose Barrientos, Elena Ramos,
Estefania Nepacina, Modesta Sanchez, Honorio Beriño, Gloria Velasco, Ana
Dequis Alunan and Benedicto Ofiaza (predecessor of defendant Carandang)
were given by Mayor Valeriano E. Fugoso written permits — each labeled
"lease contract" — to occupy specific areas in the property upon conditions
therein set forth. Defendants Isabelo Obaob and Gerardo Garcia (in the
name of Marta A. Villanueva) received their permits from Mayor Manuel de
la Fuente on January 29 and March 18, respectively, both of 1948. The
rest of the 23 defendants exhibited none.
For their occupancy, defendants were charged nominal
rentals.1äwphï1.ñët
Following are the rentals due as of February, 1962:
Amt. due from
Area
Monthly date of
NAME in
Rental delinquency
sq.m.
to Feb. 1962
 Epifanio de los Santos Elementary School is close, though not contiguous,
1. Gerardo Garcia 66.00 P7.92 P1,628.97
to the property. Came the need for this school's expansion; it became
2. Modesta C. Parayno 87.75 10.53 379.08 pressing. On September 14, 1961, plaintiff's City Engineer, pursuant to the
Mayor's directive to clear squatters' houses on city property, gave each of
3. Juan Asperas 39.00 4.68 9.36 defendants thirty (30) days to vacate and remove his construction or
improvement on the premises. This was followed by the City Treasurer's
4. Maria Tabia 35.20 5.76 570.24 demand on each defendant, made in February and March, 1962, for the
payment of the amount due by reason of the occupancy and to vacate in
5. Aquilino Barrios fifteen (15) days. Defendants refused. Hence, this suit to recover
54.00 4.32 99.36
(Leonora Ruiz) possession.2
6. Laureano Dizo 35.00 2.80 22.40
The judgment below directed defendants to vacate the premises; to pay
7. Bernabe Ayuda 39.60 3.17 323.34 the amounts heretofore indicated opposite their respective names; and to
pay their monthly rentals from March, 1962, until they vacate the said
8. Isabelo Obaob 75.52 9.06 208.38 premises, and the costs. Defendants appealed.

9. Jose Barrientos 39.53 4.74 744.18

1. We are called upon to rule on the forefront question of whether
10. Cecilia Manzano in the trial court properly found that the city needs the premises for
lieu of Urbano Ramos Paid up to school purposes.
(deceased) 46.65 5.60 Feb. 1962.
The city's evidence on this point is Exhibit E, the certification of the
11. Elena Ramos 34.80 2.78 186.26 Chairman, Committee on Appropriations of the Municipal Board.
That document recites that the amount of P100,000.00 had been
12. Estefania Nepacina 41.80 3.34 504.34 set aside in Ordinance 4566, the 1962-1963 Manila City Budget,
for the construction of an additional building of the Epifanio de los
13. Modesta Sanchez 33.48 2.68 444.88
Santos Elementary School. It is indeed correct to say that the
14. Marcial Lazaro 22.40 1.79 688.32 court below, at the hearing, ruled out the admissibility of said
document. But then, in the decision under review, the trial judge
15. Marciana Alano 25.80 2.06 255.44 obviously revised his views. He there declared that there was need
for defendants to vacate the premises for school expansion; he
16. Honorio Beriño 24.00 1.92 188.16 cited the very document, Exhibit E, aforesaid.

17. Gloria Velasco 32.40 2.59 56.98

It is beyond debate that a court of justice may alter its ruling while
18. Wilarico Ricamata 45.83 3.67 739.68 the case is within its power, to make it conformable to law and
justice.3 Such was done here. Defendants' remedy was to bring to
Paid up to the attention of the court its contradictory stance. Not having done
19. Benedicto Diaz 40.20 4.82
March 1962. so, this Court will not reopen the case solely for this purpose. 4

20. Ana Dequis Alunan 64.26 7.71 30.84 Anyway, elimination of the certification, Exhibit E, as evidence,
would not profit defendants. For, in reversing his stand, the trial
21. Lorenzo Carandang 45.03 5.40 437.40
judge could well have taken — because the was duty bound to
22. Juan N. Pecayo 25.52 3.06 30.60 take — judicial notice5 of Ordinance 4566. The reason being that
the city charter of Manila requires all courts sitting therein to take
23. Felicidad Miranda 48.02 5.76 132.48 judicial notice of all ordinances passed by the municipal board of
Manila.6 And, Ordinance 4566 itself confirms the certification
aforesaid that an appropriation of P100,000.00 was set aside for
P7,580.69
the "construction of additional building" of the Epifanio de los
Santos Elementary School.
Furthermore, defendants' position is vulnerable to assault from a
third direction. Defendants have absolutely no right to remain in
the premises. The excuse that they have permits from the mayor
is at best flimsy. The permits to occupy are recoverable on thirty
days' notice. They have been asked to leave; they refused to heed.
It is in this factual background that we say that the city's need for
the premises is unimportant. The city's right to throw defendants
out of the area cannot be gainsaid. The city's dominical right to
possession is paramount. If error there was in the finding that the
city needs the land, such error is harmless and will not justify
reversal of the judgment below.7
2. But defendants insist that they have acquired the legal status of
tenants. They are wrong.
They entered the land, built houses of second-class materials
thereon without the knowledge and consent of the city. Their
homes were erected without city permits.
These constructions are illegal. In a language familiar to all,
defendants are squatters:
Since the last global war, squatting on another's property in this
country has become a widespread vice. It was and is a blight.
Squatters' areas pose problems of health, sanitation. They are
breeding places for crime. They constitute proof that respect for
the law and the rights of others, even those of the government,
are being flouted. Knowingly, squatters have embarked on the
pernicious act of occupying property whenever and wherever
convenient to their interests — without as much as leave, and
even against the will, of the owner. They are emboldened
seemingly because of their belief that they could violate the law
with impunity. The pugnaciousness of some of them has tied up
the hands of legitimate owners. The latter are thus prevented from
recovering possession by peaceful means. Government lands have
not been spared by them. They know, of course, that intrusion into
property, government or private, is wrong. But, then, the mills of
justice grind slow, mainly because of lawyers who, by means, fair
or foul, are quite often successful in procuring delay of the day of
reckoning. Rampancy of forcible entry into government lands
particularly, is abetted by the apathy of some public officials to
enforce the government's rights. Obstinacy of these squatters is
difficult to explain unless it is spawned by official tolerance, if not
outright encouragement or protection. Said squatters have become
insensible to the difference between right and wrong. To them,
violation of law means nothing. With the result that squatting still
exists, much to the detriment of public interest. It is high time
that, in this aspect, sanity and the rule of law be restored. It is in
this environment that we look into the validity of the permits
granted defendants herein.
These permits, erroneously labeled "lease" contracts, were issued
by the mayors in 1947 and 1948 when the effects of the war had
simmered down and when these defendants could have very well
adjusted themselves. Two decades have now elapsed since the
unlawful entry. Defendants could have, if they wanted to, located
permanent premises for their abode. And yet, usurpers that they
are, they preferred to remain on city property.
Defendants' entry as aforesaid was illegal. Their constructions are
as illegal, without permits.8 The city charter enjoins the mayor to
"safeguard all the lands" of the City of Manila. 9
Surely enough, the permits granted did not "safeguard" the city's
land in question. It is our considered view that the Mayor of the
City of Manila cannot legalize forcible entry into public property by
the simple expedient of giving permits, or, for that matter,
executing leases.
Squatting is unlawful and no amount of acquiescence on the part
of the city officials will elevate it into a lawful act. In principle, a
compound of illegal entry and official permit to stay is obnoxious to
our concept of proper official norm of conduct. Because, such
permit does not serve social justice; it fosters moral decadence. It
does not promote public welfare; it abets disrespect for the law. It
has its roots in vice; so it is an infected bargain. Official approval
of squatting should not, therefore, be permitted to obtain in this
country where there is an orderly form of government.
We, accordingly, rule that the Manila mayors did not have
authority to give permits, written or oral, to defendants, and that
the permits herein granted are null and void.
3. Let us look into the houses and constructions planted by
defendants on the premises. They clearly hinder and impair the
use of that property for school purposes. The courts may well take
judicial notice of the fact that housing school children in the
elementary grades has been and still is a perennial problem in the
city. The selfish interests of defendants must have to yield to the
general good. The public purpose of constructing the school
building annex is paramount.10
 In the situation thus obtaining, the houses and constructions
aforesaid constitute public nuisance per se. And this, for the
reason that they hinder and impair the use of the property for a
badly needed school building, to the prejudice of the education of
the youth of the land.11 They shackle the hands of the government
and thus obstruct performance of its constitutionally ordained
obligation to establish and maintain a complete and adequate
system of public education, and more, to "provide at least free
public primary instruction".12
Reason dictates that no further delay should be countenanced. The
public nuisance could well have been summarily abated by the city
authorities themselves, even without the aid of the courts.13
4. Defendants challenge the jurisdiction of the Court of First
Instance of Manila. They say that the case should have been
started in the municipal court. They prop up their position by the
averment that notice for them to vacate was only served in
September, 1961, and suit was started in July, 1962. Their legal
ground is Section 1, Rule 70 of the Rules of Court. We have
reached the conclusion that their forcible entry dates back to the
period from 1945 to 1947. That entry was not legalized by the
permits. Their possession continued to remain illegal from
incipiency. Suit was filed long after the one-year limitation set
forth in Section 1 of Rule 70. And the Manila Court of First
Instance has jurisdiction.14
Upon the premises, we vote to affirm the judgment under review. Costs
against defendants-appellants. So ordered.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 92013 July 25, 1990
SALVADOR H. LAUREL, petitioner,
vs.
RAMON GARCIA, as head of the Asset Privatization Trust, RAUL
MANGLAPUS, as Secretary of Foreign Affairs, and CATALINO
MACARAIG, as Executive Secretary, respondents.
G.R. No. 92047 July 25, 1990
DIONISIO S. OJEDA, petitioner,
vs.
EXECUTIVE SECRETARY MACARAIG, JR., ASSETS PRIVATIZATION
TRUST CHAIRMAN RAMON T. GARCIA, AMBASSADOR RAMON DEL
ROSARIO, et al., as members of the PRINCIPAL AND BIDDING
COMMITTEES ON THE UTILIZATION/DISPOSITION PETITION OF
PHILIPPINE GOVERNMENT PROPERTIES IN JAPAN, respondents.
Arturo M. Tolentino for petitioner in 92013.
GUTIERREZ, JR., J.:
These are two petitions for prohibition seeking to enjoin
respondents, their representatives and agents from proceeding
with the bidding for the sale of the 3,179 square meters of land at
306 Roppongi, 5-Chome Minato-ku Tokyo, Japan scheduled on
February 21, 1990. We granted the prayer for a temporary
restraining order effective February 20, 1990. One of the
petitioners (in G.R. No. 92047) likewise prayes for a writ of
mandamus to compel the respondents to fully disclose to the
public the basis of their decision to push through with the sale of
the Roppongi property inspire of strong public opposition and to
explain the proceedings which effectively prevent the participation
of Filipino citizens and entities in the bidding process.
The oral arguments in G.R. No. 92013, Laurel v. Garcia, et al. were
heard by the Court on March 13, 1990. After G.R. No. 92047, Ojeda
v. Secretary Macaraig, et al. was filed, the respondents were
required to file a comment by the Court's resolution dated
February 22, 1990. The two petitions were consolidated on March
27, 1990 when the memoranda of the parties in the Laurel case
were deliberated upon.
The Court could not act on these cases immediately because the
respondents filed a motion for an extension of thirty (30) days to
file comment in G.R. No. 92047, followed by a second motion for an
extension of another thirty (30) days which we granted on May 8,
1990, a third motion for extension of time granted on May 24,
1990 and a fourth motion for extension of time which we granted
on June 5, 1990 but calling the attention of the respondents to the
length of time the petitions have been pending. After the comment
was filed, the petitioner in G.R. No. 92047 asked for thirty (30)
days to file a reply. We noted his motion and resolved to decide the
two (2) cases.
I government to provide necessary funds, the Roppongi property has
The subject property in this case is one of the four (4) properties
in Japan acquired by the Philippine government under the
Reparations Agreement entered into with Japan on May 9, 1956,
the other lots being:
(1) The Nampeidai Property at 11-24 Nampeidai-machi, Shibuya-
ku, Tokyo which has an area of approximately 2,489.96 square
meters, and is at present the site of the Philippine Embassy
Chancery;
(2) The Kobe Commercial Property at 63 Naniwa-cho, Kobe, with
an area of around 764.72 square meters and categorized as a
commercial lot now being used as a warehouse and parking lot for
the consulate staff; and
(3) The Kobe Residential Property at 1-980-2 Obanoyama-cho,
Shinohara, Nada-ku, Kobe, a residential lot which is now vacant.
The properties and the capital goods and services procured from
the Japanese government for national development projects are
part of the indemnification to the Filipino people for their losses in
life and property and their suffering during World War II.
The Reparations Agreement provides that reparations valued at
$550 million would be payable in twenty (20) years in accordance
with annual schedules of procurements to be fixed by the
Philippine and Japanese governments (Article 2, Reparations
Agreement). Rep. Act No. 1789, the Reparations Law, prescribes
the national policy on procurement and utilization of reparations
and development loans. The procurements are divided into those
for use by the government sector and those for private parties in
projects as the then National Economic Council shall determine.
Those intended for the private sector shall be made available by
sale to Filipino citizens or to one hundred (100%) percent Filipino-
owned entities in national development projects.
The Roppongi property was acquired from the Japanese
government under the Second Year Schedule and listed under the
heading "Government Sector", through Reparations Contract No.
300 dated June 27, 1958. The Roppongi property consists of the
land and building "for the Chancery of the Philippine Embassy"
(Annex M-D to Memorandum for Petitioner, p. 503). As intended, it
became the site of the Philippine Embassy until the latter was
transferred to Nampeidai on July 22, 1976 when the Roppongi
building needed major repairs. Due to the failure of our
remained undeveloped since that time.
A proposal was presented to President Corazon C. Aquino by
former Philippine Ambassador to Japan, Carlos J. Valdez, to make
the property the subject of a lease agreement with a Japanese firm
- Kajima Corporation — which shall construct two (2) buildings in
Roppongi and one (1) building in Nampeidai and renovate the
present Philippine Chancery in Nampeidai. The consideration of the
construction would be the lease to the foreign corporation of one
(1) of the buildings to be constructed in Roppongi and the two (2)
buildings in Nampeidai. The other building in Roppongi shall then
be used as the Philippine Embassy Chancery. At the end of the
lease period, all the three leased buildings shall be occupied and
used by the Philippine government. No change of ownership or title
shall occur. (See Annex "B" to Reply to Comment) The Philippine
government retains the title all throughout the lease period and
thereafter. However, the government has not acted favorably on
this proposal which is pending approval and ratification between
the parties. Instead, on August 11, 1986, President Aquino created
a committee to study the disposition/utilization of Philippine
government properties in Tokyo and Kobe, Japan through
Administrative Order No. 3, followed by Administrative Orders
Numbered 3-A, B, C and D.
On July 25, 1987, the President issued Executive Order No. 296
entitling non-Filipino citizens or entities to avail of separations'
capital goods and services in the event of sale, lease or disposition.
The four properties in Japan including the Roppongi were
specifically mentioned in the first "Whereas" clause.
Amidst opposition by various sectors, the Executive branch of the
government has been pushing, with great vigor, its decision to sell
the reparations properties starting with the Roppongi lot. The
property has twice been set for bidding at a minimum floor price of
$225 million. The first bidding was a failure since only one bidder
qualified. The second one, after postponements, has not yet
materialized. The last scheduled bidding on February 21, 1990 was
restrained by his Court. Later, the rules on bidding were changed
such that the $225 million floor price became merely a suggested
floor price.
The Court finds that each of the herein petitions raises distinct
issues. The petitioner in G.R. No. 92013 objects to the alienation of
the Roppongi property to anyone while the petitioner in G.R. No.
92047 adds as a principal objection the alleged unjustified bias of
the Philippine government in favor of selling the property to non-
Filipino citizens and entities. These petitions have been
consolidated and are resolved at the same time for the objective is
the same - to stop the sale of the Roppongi property.
The petitioner in G.R. No. 92013 raises the following issues:
(1) Can the Roppongi property and others of its kind be alienated
by the Philippine Government?; and
(2) Does the Chief Executive, her officers and agents, have the
authority and jurisdiction, to sell the Roppongi property?
Petitioner Dionisio Ojeda in G.R. No. 92047, apart from questioning
the authority of the government to alienate the Roppongi property
assails the constitutionality of Executive Order No. 296 in making
the property available for sale to non-Filipino citizens and entities.
He also questions the bidding procedures of the Committee on the
Utilization or Disposition of Philippine Government Properties in
Japan for being discriminatory against Filipino citizens and
Filipino-owned entities by denying them the right to be informed
about the bidding requirements.
II
In G.R. No. 92013, petitioner Laurel asserts that the Roppongi
property and the related lots were acquired as part of the
reparations from the Japanese government for diplomatic and
consular use by the Philippine government. Vice-President Laurel
states that the Roppongi property is classified as one of public
dominion, and not of private ownership under Article 420 of the
Civil Code (See infra).
The petitioner submits that the Roppongi property comes under
"property intended for public service" in paragraph 2 of the above
provision. He states that being one of public dominion, no
ownership by any one can attach to it, not even by the State. The
Roppongi and related properties were acquired for "sites for
chancery, diplomatic, and consular quarters, buildings and other
improvements" (Second Year Reparations Schedule). The
petitioner states that they continue to be intended for a necessary
service. They are held by the State in anticipation of an opportune
use. (Citing 3 Manresa 65-66). Hence, it cannot be appropriated, is
outside the commerce of man, or to put it in more simple terms, it
cannot be alienated nor be the subject matter of contracts (Citing
Municipality of Cavite v. Rojas, 30 Phil. 20 [1915]). Noting the non-
use of the Roppongi property at the moment, the petitioner avers
that the same remains property of public dominion so long as the
government has not used it for other purposes nor adopted any
measure constituting a removal of its original purpose or use.
The respondents, for their part, refute the petitioner's contention
by saying that the subject property is not governed by our Civil
Code but by the laws of Japan where the property is located. They
rely upon the rule of lex situs which is used in determining the
applicable law regarding the acquisition, transfer and devolution of
the title to a property. They also invoke Opinion No. 21, Series of
1988, dated January 27, 1988 of the Secretary of Justice which
used the lex situs in explaining the inapplicability of Philippine law
regarding a property situated in Japan.
The respondents add that even assuming for the sake of argument
that the Civil Code is applicable, the Roppongi property has ceased
to become property of public dominion. It has become patrimonial
property because it has not been used for public service or for
diplomatic purposes for over thirteen (13) years now (Citing
Article 422, Civil Code) and because the intention by the Executive
Department and the Congress to convert it to private use has been
manifested by overt acts, such as, among others: (1) the transfer
of the Philippine Embassy to Nampeidai (2) the issuance of
administrative orders for the possibility of alienating the four
government properties in Japan; (3) the issuance of Executive
Order No. 296; (4) the enactment by the Congress of Rep. Act No.
6657 [the Comprehensive Agrarian Reform Law] on June 10, 1988
which contains a provision stating that funds may be taken from
the sale of Philippine properties in foreign countries; (5) the
holding of the public bidding of the Roppongi property but which
failed; (6) the deferment by the Senate in Resolution No. 55 of the
bidding to a future date; thus an acknowledgment by the Senate of
the government's intention to remove the Roppongi property from
the public service purpose; and (7) the resolution of this Court
dismissing the petition in Ojeda v. Bidding Committee, et al., G.R.
No. 87478 which sought to enjoin the second bidding of the
Roppongi property scheduled on March 30, 1989.
III
In G.R. No. 94047, petitioner Ojeda once more asks this Court to
rule on the constitutionality of Executive Order No. 296. He had
earlier filed a petition in G.R. No. 87478 which the Court dismissed
on August 1, 1989. He now avers that the executive order
contravenes the constitutional mandate to conserve and develop
the national patrimony stated in the Preamble of the 1987
Constitution. It also allegedly violates:
(1) The reservation of the ownership and acquisition of alienable
lands of the public domain to Filipino citizens. (Sections 2 and 3,
Article XII, Constitution; Sections 22 and 23 of Commonwealth Act
141).i•t•c-aüsl
(2) The preference for Filipino citizens in the grant of rights,
privileges and concessions covering the national economy and
patrimony (Section 10, Article VI, Constitution);
(3) The protection given to Filipino enterprises against unfair
competition and trade practices;
(4) The guarantee of the right of the people to information on all
matters of public concern (Section 7, Article III, Constitution);
(5) The prohibition against the sale to non-Filipino citizens or
entities not wholly owned by Filipino citizens of capital goods
received by the Philippines under the Reparations Act (Sections 2
and 12 of Rep. Act No. 1789); and
(6) The declaration of the state policy of full public disclosure of all
transactions involving public interest (Section 28, Article III,
Constitution).
Petitioner Ojeda warns that the use of public funds in the
execution of an unconstitutional executive order is a
misapplication of public funds He states that since the details of
the bidding for the Roppongi property were never publicly
disclosed until February 15, 1990 (or a few days before the
scheduled bidding), the bidding guidelines are available only in
Tokyo, and the accomplishment of requirements and the selection
of qualified bidders should be done in Tokyo, interested Filipino
citizens or entities owned by them did not have the chance to
comply with Purchase Offer Requirements on the Roppongi. Worse,
the Roppongi shall be sold for a minimum price of $225 million
from which price capital gains tax under Japanese law of about 50
to 70% of the floor price would still be deducted.
IV
The petitioners and respondents in both cases do not dispute the
fact that the Roppongi site and the three related properties were
through reparations agreements, that these were assigned to the
government sector and that the Roppongi property itself was
specifically designated under the Reparations Agreement to house
the Philippine Embassy.
The nature of the Roppongi lot as property for public service is
expressly spelled out. It is dictated by the terms of the Reparations
Agreement and the corresponding contract of procurement which
bind both the Philippine government and the Japanese
government.
There can be no doubt that it is of public dominion unless it is
convincingly shown that the property has become patrimonial.
This, the respondents have failed to do.
As property of public dominion, the Roppongi lot is outside the
commerce of man. It cannot be alienated. Its ownership is a
special collective ownership for general use and enjoyment, an
application to the satisfaction of collective needs, and resides in
the social group. The purpose is not to serve the State as a
juridical person, but the citizens; it is intended for the common and
public welfare and cannot be the object of appropration. (Taken
from 3 Manresa, 66-69; cited in Tolentino, Commentaries on the
Civil Code of the Philippines, 1963 Edition, Vol. II, p. 26).
The applicable provisions of the Civil Code are:
ART. 419. Property is either of public dominion or of
private ownership.
ART. 420. The following things are property of public
dominion
(1) Those intended for public use, such as roads,
canals, rivers, torrents, ports and bridges
constructed by the State, banks shores roadsteads,
and others of similar character;
(2) Those which belong to the State, without being
for public use, and are intended for some public
service or for the development of the national
wealth.
ART. 421. All other property of the State, which is
not of the character stated in the preceding article,
is patrimonial property.
The Roppongi property is correctly classified under paragraph 2 of
Article 420 of the Civil Code as property belonging to the State and
intended for some public service.
Has the intention of the government regarding the use of the
property been changed because the lot has been Idle for some
years? Has it become patrimonial?
The fact that the Roppongi site has not been used for a long time
for actual Embassy service does not automatically convert it to
patrimonial property. Any such conversion happens only if the
property is withdrawn from public use (Cebu Oxygen and
Acetylene Co. v. Bercilles, 66 SCRA 481 [1975]). A property
continues to be part of the public domain, not available for private
appropriation or ownership until there is a formal declaration on
the part of the government to withdraw it from being such
(Ignacio v. Director of Lands, 108 Phil. 335 [1960]).
The respondents enumerate various pronouncements by concerned
public officials insinuating a change of intention. We emphasize,
however, that an abandonment of the intention to use the
Roppongi property for public service and to make it patrimonial
property under Article 422 of the Civil Code must be
definite Abandonment cannot be inferred from the non-use alone
specially if the non-use was attributable not to the government's
own deliberate and indubitable will but to a lack of financial
support to repair and improve the property (See Heirs of Felino
Santiago v. Lazaro, 166 SCRA 368 [1988]). Abandonment must be
a certain and positive act based on correct legal premises.
A mere transfer of the Philippine Embassy to Nampeidai in 1976 is
not relinquishment of the Roppongi property's original purpose.
Even the failure by the government to repair the building in
Roppongi is not abandonment since as earlier stated, there simply
was a shortage of government funds. The recent Administrative
Orders authorizing a study of the status and conditions of
government properties in Japan were merely directives for
investigation but did not in any way signify a clear intention to
dispose of the properties.
Executive Order No. 296, though its title declares an "authority to
sell", does not have a provision in its text expressly authorizing
the sale of the four properties procured from Japan for the
government sector. The executive order does not declare that the
properties lost their public character. It merely intends to make
the properties available to foreigners and not to Filipinos alone in
case of a sale, lease or other disposition. It merely eliminates the
restriction under Rep. Act No. 1789 that reparations goods may be
sold only to Filipino citizens and one hundred (100%) percent
Filipino-owned entities. The text of Executive Order No. 296
provides:
Section 1. The provisions of Republic Act No. 1789,
as amended, and of other laws to the contrary
notwithstanding, the above-mentioned properties
can be made available for sale, lease or any other
manner of disposition to non-Filipino citizens or to
entities owned by non-Filipino citizens.
Executive Order No. 296 is based on the wrong premise or
assumption that the Roppongi and the three other properties were
earlier converted into alienable real properties. As earlier stated,
Rep. Act No. 1789 differentiates the procurements for the
government sector and the private sector (Sections 2 and 12, Rep.
Act No. 1789). Only the private sector properties can be sold to
end-users who must be Filipinos or entities owned by Filipinos. It
is this nationality provision which was amended by Executive
Order No. 296.
Section 63 (c) of Rep. Act No. 6657 (the CARP Law) which provides
as one of the sources of funds for its implementation, the proceeds
of the disposition of the properties of the Government in foreign
countries, did not withdraw the Roppongi property from being
classified as one of public dominion when it mentions Philippine
properties abroad. Section 63 (c) refers to properties which are
alienable and not to those reserved for public use or service. Rep
Act No. 6657, therefore, does not authorize the Executive
Department to sell the Roppongi property. It merely enumerates
possible sources of future funding to augment (as and when
needed) the Agrarian Reform Fund created under Executive Order
No. 299. Obviously any property outside of the commerce of man
cannot be tapped as a source of funds.
The respondents try to get around the public dominion character of
the Roppongi property by insisting that Japanese law and not our
Civil Code should apply.
It is exceedingly strange why our top government officials, of all
people, should be the ones to insist that in the sale of extremely
valuable government property, Japanese law and not Philippine
law should prevail. The Japanese law - its coverage and effects,
when enacted, and exceptions to its provision — is not presented
to the Court It is simply asserted that the lex loci rei sitae or
Japanese law should apply without stating what that law provides.
It is a ed on faith that Japanese law would allow the sale.
We see no reason why a conflict of law rule should apply when no
conflict of law situation exists. A conflict of law situation arises
only when: (1) There is a dispute over the title or ownership of an
immovable, such that the capacity to take and transfer
immovables, the formalities of conveyance, the essential validity
and effect of the transfer, or the interpretation and effect of a
conveyance, are to be determined (See Salonga, Private
International Law, 1981 ed., pp. 377-383); and (2) A foreign law
on land ownership and its conveyance is asserted to conflict with a
domestic law on the same matters. Hence, the need to determine
which law should apply.
In the instant case, none of the above elements exists.
The issues are not concerned with validity of ownership or title.
There is no question that the property belongs to the Philippines.
The issue is the authority of the respondent officials to validly
dispose of property belonging to the State. And the validity of the
procedures adopted to effect its sale. This is governed by
Philippine Law. The rule of lex situs does not apply.
The assertion that the opinion of the Secretary of Justice sheds
light on the relevance of the lex situs rule is misplaced. The
opinion does not tackle the alienability of the real properties
procured through reparations nor the existence in what body of
the authority to sell them. In discussing who are capable of
acquiring the lots, the Secretary merely explains that it is the
foreign law which should determine who can acquire the
properties so that the constitutional limitation on acquisition of
lands of the public domain to Filipino citizens and entities wholly
owned by Filipinos is inapplicable. We see no point in belaboring
whether or not this opinion is correct. Why should we discuss who
can acquire the Roppongi lot when there is no showing that it can
be sold?
The subsequent approval on October 4, 1988 by President Aquino
of the recommendation by the investigating committee to sell the
Roppongi property was premature or, at the very least, conditioned
on a valid change in the public character of the Roppongi property.
Moreover, the approval does not have the force and effect of law
since the President already lost her legislative powers. The
Congress had already convened for more than a year.
Assuming for the sake of argument, however, that the Roppongi
property is no longer of public dominion, there is another obstacle
to its sale by the respondents.
There is no law authorizing its conveyance.
Section 79 (f) of the Revised Administrative Code of 1917 provides
Section 79 (f ) Conveyances and contracts to which
the Government is a party. — In cases in which the
Government of the Republic of the Philippines is a
party to any deed or other instrument conveying the
title to real estate or to any other property the value
of which is in excess of one hundred thousand pesos,
the respective Department Secretary shall prepare
the necessary papers which, together with the
proper recommendations, shall be submitted to the
Congress of the Philippines for approval by the
same. Such deed, instrument, or contract shall be
executed and signed by the President of the
Philippines on behalf of the Government of the
Philippines unless the Government of the Philippines
unless the authority therefor be expressly vested by
law in another officer. (Emphasis supplied)
The requirement has been retained in Section 48, Book I of the
Administrative Code of 1987 (Executive Order No. 292).
SEC. 48. Official Authorized to Convey Real Property.
— Whenever real property of the Government
is authorized by law to be conveyed, the deed of
conveyance shall be executed in behalf of the
government by the following:
(1) For property belonging to and titled in the name
of the Republic of the Philippines, by the President,
unless the authority therefor is expressly vested by
law in another officer.
(2) For property belonging to the Republic of the
Philippines but titled in the name of any political
subdivision or of any corporate agency or
instrumentality, by the executive head of the agency
or instrumentality. (Emphasis supplied)
It is not for the President to convey valuable real property of the
government on his or her own sole will. Any such conveyance must
be authorized and approved by a law enacted by the Congress. It
requires executive and legislative concurrence.
Resolution No. 55 of the Senate dated June 8, 1989, asking for the
deferment of the sale of the Roppongi property does not withdraw
the property from public domain much less authorize its sale. It is
a mere resolution; it is not a formal declaration abandoning the
public character of the Roppongi property. In fact, the Senate
Committee on Foreign Relations is conducting hearings on Senate
Resolution No. 734 which raises serious policy considerations and
calls for a fact-finding investigation of the circumstances behind
the decision to sell the Philippine government properties in Japan.
The resolution of this Court in Ojeda v. Bidding Committee, et al.,
supra, did not pass upon the constitutionality of Executive Order
No. 296. Contrary to respondents' assertion, we did not uphold the
authority of the President to sell the Roppongi property. The Court
stated that the constitutionality of the executive order was not the
real issue and that resolving the constitutional question was
"neither necessary nor finally determinative of the case." The
Court noted that "[W]hat petitioner ultimately questions is the use
of the proceeds of the disposition of the Roppongi property." In
emphasizing that "the decision of the Executive to dispose of the
Roppongi property to finance the CARP ... cannot be questioned" in
view of Section 63 (c) of Rep. Act No. 6657, the Court did not
acknowledge the fact that the property became alienable nor did it
indicate that the President was authorized to dispose of the
Roppongi property. The resolution should be read to mean that in
case the Roppongi property is re-classified to be patrimonial and
alienable by authority of law, the proceeds of a sale may be used
for national economic development projects including the CARP.
Moreover, the sale in 1989 did not materialize. The petitions before
us question the proposed 1990 sale of the Roppongi property. We
are resolving the issues raised in these petitions, not the issues
raised in 1989.
Having declared a need for a law or formal declaration to withdraw
the Roppongi property from public domain to make it alienable and
a need for legislative authority to allow the sale of the property,
we see no compelling reason to tackle the constitutional issues
raised by petitioner Ojeda.
The Court does not ordinarily pass upon constitutional questions
unless these questions are properly raised in appropriate cases
and their resolution is necessary for the determination of the case
(People v. Vera, 65 Phil. 56 [1937]). The Court will not pass upon a
constitutional question although properly presented by the record
if the case can be disposed of on some other ground such as the
application of a statute or general law (Siler v. Louisville and
Nashville R. Co., 213 U.S. 175, [1909], Railroad Commission v.
Pullman Co., 312 U.S. 496 [1941]).
The petitioner in G.R. No. 92013 states why the Roppongi property
should not be sold:
The Roppongi property is not just like any piece of
property. It was given to the Filipino people in
reparation for the lives and blood of Filipinos who
died and suffered during the Japanese military
occupation, for the suffering of widows and orphans
who lost their loved ones and kindred, for the homes
and other properties lost by countless Filipinos
during the war. The Tokyo properties are a
monument to the bravery and sacrifice of the Filipino
people in the face of an invader; like the monuments
of Rizal, Quezon, and other Filipino heroes, we do
not expect economic or financial benefits from them.
But who would think of selling these monuments?
Filipino honor and national dignity dictate that we
keep our properties in Japan as memorials to the
countless Filipinos who died and suffered. Even if we
should become paupers we should not think of
selling them. For it would be as if we sold the lives
and blood and tears of our countrymen. (Rollo- G.R.
No. 92013, p.147)
The petitioner in G.R. No. 92047 also states:
Roppongi is no ordinary property. It is one ceded by
the Japanese government in atonement for its past
belligerence for the valiant sacrifice of life and limb
and for deaths, physical dislocation and economic
devastation the whole Filipino people endured in
World War II.
It is for what it stands for, and for what it could
never bring back to life, that its significance today
remains undimmed, inspire of the lapse of 45 years
since the war ended, inspire of the passage of 32
years since the property passed on to the Philippine
government.
Roppongi is a reminder that cannot — should not —
be dissipated ... (Rollo-92047, p. 9)
It is indeed true that the Roppongi property is valuable not so
much because of the inflated prices fetched by real property in
Tokyo but more so because of its symbolic value to all Filipinos —
veterans and civilians alike. Whether or not the Roppongi and
related properties will eventually be sold is a policy determination
where both the President and Congress must concur. Considering
the properties' importance and value, the laws on conversion and
disposition of property of public dominion must be faithfully
followed.
WHEREFORE, IN VIEW OF THE FOREGOING, the petitions are
GRANTED. A writ of prohibition is issued enjoining the respondents
from proceeding with the sale of the Roppongi property in Tokyo,
Japan. The February 20, 1990 Temporary Restraining Order is
made PERMANENT.
SO ORDERED.
Melencio-Herrera, Paras, Bidin, Griño-Aquino and Regalado, JJ.,
concur.
Separate Opinions
CRUZ, J., concurring:
I concur completely with the excellent ponencia of Mr. Justice
Gutierrez and will add the following observations only for
emphasis.
It is clear that the respondents have failed to show the President's
legal authority to sell the Roppongi property. When asked to do so
at the hearing on these petitions, the Solicitor General was at best
ambiguous, although I must add in fairness that this was not his
fault. The fact is that there is -no such authority. Legal expertise
alone cannot conjure that statutory permission out of thin air.
Exec. Order No. 296, which reads like so much legislative, double
talk, does not contain such authority. Neither does Rep. Act No.
6657, which simply allows the proceeds of the sale of our
properties abroad to be used for the comprehensive agrarian
reform program. Senate Res. No. 55 was a mere request for the
deferment of the scheduled sale of tile Roppongi property, possibly
to stop the transaction altogether; and ill any case it is not a law.
The sale of the said property may be authorized only by Congress
through a duly enacted statute, and there is no such law.
Once again, we have affirmed the principle that ours is a
government of laws and not of men, where every public official,
from the lowest to the highest, can act only by virtue of a valid
authorization. I am happy to note that in the several cases where
this Court has ruled against her, the President of the Philippines
has submitted to this principle with becoming grace.
PADILLA, J., concurring:
I concur in the decision penned by Mr. Justice Gutierrez, Jr., I only
wish to make a few observations which could help in further
clarifying the issues.
Under our tripartite system of government ordained by the
Constitution, it is Congress that lays down or determines policies.
The President executes such policies. The policies determined by
Congress are embodied in legislative enactments that have to be
approved by the President to become law. The President, of
course, recommends to Congress the approval of policies but, in
the final analysis, it is Congress that is the policy - determining
branch of government.
The judiciary interprets the laws and, in appropriate cases,
determines whether the laws enacted by Congress and approved
by the President, and presidential acts implementing such laws,
are in accordance with the Constitution.
The Roppongi property was acquired by the Philippine government
pursuant to the reparations agreement between the Philippine and
Japanese governments. Under such agreement, this property was
acquired by the Philippine government for a specific purpose,
namely, to serve as the site of the Philippine Embassy in Tokyo,
Japan. Consequently, Roppongi is a property of public dominion
and intended for public service, squarely falling within that class of
property under Art. 420 of the Civil Code, which provides:
Art. 420. The following things are property of public
dominion :
(1) ...
(2) Those which belong to the State, without being
for public use, and are intended for some public
 service or for the development of the national
wealth. (339a)
Public dominion property intended for public service cannot be
alienated unless the property is first transformed into private
property of the state otherwise known as patrimonial property of
the state. 1 The transformation of public dominion property to state
patrimonial property involves, to my mind, a policy decision. It is a
policy decision because the treatment of the property varies
according to its classification. Consequently, it is Congress which
can decide and declare the conversion of Roppongi from a public
dominion property to a state patrimonial property. Congress has
made no such decision or declaration.
Moreover, the sale of public property (once converted from public
dominion to state patrimonial property) must be approved by
Congress, for this again is a matter of policy (i.e. to keep or
dispose of the property). Sec. 48, Book 1 of the Administrative
Code of 1987 provides:
SEC. 48. Official Authorized to Convey Real Property.
— Whenever real property of the Government is
authorized by law to be conveyed, the deed of
conveyance shall be executed in behalf of the
government by the following:
(1) For property belonging to and
titled in the name of the Republic of
the Philippines, by the President,
unless the authority therefor is
expressly vested by law in another
officer.
(2) For property belonging to the
Republic of the Philippines but titled in
the name of any political subdivision
or of any corporate agency or
instrumentality, by the executive head
of the agency or instrumentality.
(Emphasis supplied)
But the record is bare of any congressional decision or approval to
sell Roppongi. The record is likewise bare of any congressional
authority extended to the President to sell Roppongi thru public
bidding or otherwise.
It is therefore, clear that the President cannot sell or order the sale
of Roppongi thru public bidding or otherwise without a prior
congressional approval, first, converting Roppongi from a public
dominion property to a state patrimonial property, and, second,
authorizing the President to sell the same.
ACCORDINGLY, my vote is to GRANT the petition and to make
PERMANENT the temporary restraining order earlier issued by this
Court.
SARMIENTO, J., concurring:
The central question, as I see it, is whether or not the so-called
"Roppongi property' has lost its nature as property of public
dominion, and hence, has become patrimonial property of the
State. I understand that the parties are agreed that it was property
intended for "public service" within the contemplation of
paragraph (2), of Article 430, of the Civil Code, and accordingly,
land of State dominion, and beyond human commerce. The lone
issue is, in the light of supervening developments, that is non-user
thereof by the National Government (for diplomatic purposes) for
the last thirteen years; the issuance of Executive Order No. 296
making it available for sale to any interested buyer; the
promulgation of Republic Act No. 6657, the Comprehensive
Agrarian Reform Law, making available for the program's
financing, State assets sold; the approval by the President of the
recommendation of the investigating committee formed to study
the property's utilization; and the issuance of Resolution No. 55 of
the Philippine Senate requesting for the deferment of its
disposition it, "Roppongi", is still property of the public dominion,
and if it is not, how it lost that character.
When land of the public dominion ceases to be one, or when the
change takes place, is a question our courts have debated early. In
a 1906 decision, 1 it was held that property of the public dominion,
a public plaza in this instance, becomes patrimonial upon use
thereof for purposes other than a plaza. In a later case, 2 this
ruling was reiterated. Likewise, it has been held that land,
originally private property, has become of public dominion upon its
donation to the town and its conversion and use as a public
plaza. 3 It is notable that under these three cases, the character of the
property, and any change occurring therein, depends on the actual use to
which it is dedicated. 4
Much later, however, the Court held that "until a formal declaration on the
part of the Government, through the executive department or the
Legislative, to the effect that the land . . . is no longer needed for [public]
service- for public use or for special industries, [it] continue[s] to be part
of the public [dominion], not available for private expropriation or
ownership." 5 So also, it was ruled that a political subdivision (the City of
Cebu in this case) alone may declare (under its charter) a city road
abandoned and thereafter, to dispose of it. 6
In holding that there is "a need for a law or formal declaration to withdraw
the Roppongi property from public domain to make it alienable and a land
for legislative authority to allow the sale of the property" 7 the majority
lays stress to the fact that: (1) An affirmative act — executive or
legislative — is necessary to reclassify property of the public dominion, and
(2) a legislative decree is required to make it alienable. It also clears the
uncertainties brought about by earlier interpretations that the nature of
property-whether public or patrimonial is predicated on the manner it is
actually used, or not used, and in the same breath, repudiates the
Government's position that the continuous non-use of "Roppongi", among
other arguments, for "diplomatic purposes", has turned it into State
patrimonial property.
I feel that this view corresponds to existing pronouncements of this Court,
among other things, that: (1) Property is presumed to be State property in
the absence of any showing to the contrary; 8 (2) With respect to forest
lands, the same continue to be lands of the public dominion unless and
until reclassified by the Executive Branch of the Government; 9 and (3) All
natural resources, under the Constitution, and subject to exceptional
cases, belong to the State. 10
I am elated that the Court has banished previous uncertainties.
FELICIANO, J., dissenting
With regret, I find myself unable to share the conclusions reached by Mr.
Justice Hugo E. Gutierrez, Jr.
For purposes of this separate opinion, I assume that the piece of land
located in 306 Roppongi, 5-Chome, Minato-ku Tokyo, Japan (hereinafter
referred to as the "Roppongi property") may be characterized as property
of public dominion, within the meaning of Article 420 (2) of the Civil Code:
[Property] which belong[s] to the State, without being for
public use, and are intended for some public service -.
It might not be amiss however, to note that the appropriateness of trying
to bring within the confines of the simple threefold classification found in
Article 420 of the Civil Code ("property for public use property "intended
for some public service" and property intended "for the development of the
national wealth") all property owned by the Republic of the Philippines
whether found within the territorial boundaries of the Republic or located
within the territory of another sovereign State, is not self-evident. The first
item of the classification property intended for public use — can scarcely
be properly applied to property belonging to the Republic but found within
the territory of another State. The third item of the classification property
intended for the development of the national wealth is illustrated, in Article
339 of the Spanish Civil Code of 1889, by mines or mineral properties.
Again, mineral lands owned by a sovereign State are rarely, if ever, found
within the territorial base of another sovereign State. The task of
examining in detail the applicability of the classification set out in Article
420 of our Civil Code to property that the Philippines happens to own
outside its own boundaries must, however, be left to academicians.
For present purposes, too, I agree that there is no question of conflict of
laws that is, at the present time, before this Court. The issues before us
relate essentially to authority to sell the Roppongi property so far as
Philippine law is concerned.
The majority opinion raises two (2) issues: (a) whether or not the
Roppongi property has been converted into patrimonial property or
property of the private domain of the State; and (b) assuming an
affirmative answer to (a), whether or not there is legal authority to dispose
of the Roppongi property.
I
Addressing the first issue of conversion of property of public dominion
intended for some public service, into property of the private domain of
the Republic, it should be noted that the Civil Code does not address the
question of who has authority to effect such conversion. Neither does the
Civil Code set out or refer to any procedure for such conversion.
Our case law, however, contains some fairly explicit pronouncements on
this point, as Justice Sarmiento has pointed out in his concurring opinion.
In Ignacio v. Director of Lands (108 Phils. 335 [1960]), petitioner Ignacio
argued that if the land in question formed part of the public domain, the
trial court should have declared the same no longer necessary for public
use or public purposes and which would, therefore, have become
disposable and available for private ownership. Mr. Justice Montemayor,
speaking for the Court, said:
 Article 4 of the Law of Waters of 1866 provides that when
a portion of the shore is no longer washed by the waters of
the sea and is not necessary for purposes of public utility,
or for the establishment of special industries, or for coast-
guard service, the government shall declare it to be the
property of the owners of the estates adjacent thereto and
as an increment thereof. We believe that only the
executive and possibly the legislative departments have
the authority and the power to make the declaration that
any land so gained by the sea, is not necessary for
purposes of public utility, or for the establishment of
special industries, or for coast-guard service. If no such
declaration has been made by said departments, the lot in
question forms part of the public domain. (Natividad v.
Director of Lands, supra.)
The reason for this pronouncement, according to this
Tribunal in the case of Vicente Joven y Monteverde v.
Director of Lands, 93 Phil., 134 (cited in Velayo's Digest,
Vol. 1, p. 52).
... is undoubtedly that the courts are neither primarily
called upon, nor indeed in a position to determine whether
any public land are to be used for the purposes specified in
Article 4 of the Law of Waters. Consequently, until a formal
declaration on the part of the Government, through the
executive department or the Legislature, to the effect that
the land in question is no longer needed for coast-guard
service, for public use or for special industries, they
continue to be part of the public domain not available for
private appropriation or ownership. (108 Phil. at 338-339;
emphasis supplied)
Thus, under Ignacio, either the Executive Department or the Legislative
Department may convert property of the State of public dominion into
patrimonial property of the State. No particular formula or procedure of
conversion is specified either in statute law or in case law. Article 422 of
the Civil Code simply states that: "Property of public dominion, when no
longer intended for public use or for public service, shall form part of the
patrimonial property of the State". I respectfully submit, therefore, that
the only requirement which is legitimately imposable is that the intent to
convert must be reasonably clear from a consideration of the acts or acts
of the Executive Department or of the Legislative Department which are
said to have effected such conversion.
The same legal situation exists in respect of conversion of property of
public dominion belonging to municipal corporations, i.e., local
governmental units, into patrimonial property of such entities.
In Cebu Oxygen Acetylene v. Bercilles (66 SCRA 481 [1975]), the City
Council of Cebu by resolution declared a certain portion of an existing
street as an abandoned road, "the same not being included in the city
development plan". Subsequently, by another resolution, the City Council
of Cebu authorized the acting City Mayor to sell the land through public
bidding. Although there was no formal and explicit declaration of
conversion of property for public use into patrimonial property, the
Supreme Court said:
xxx xxx xxx
(2) Since that portion of the city street subject of
petitioner's application for registration of title was
withdrawn from public use, it follows that such withdrawn
portion becomes patrimonial property which can be the
object of an ordinary contract.
Article 422 of the Civil Code expressly provides that
"Property of public dominion, when no longer intended for
public use of for public service, shall form part of the
patrimonial property of the State."
Besides, the Revised Charter of the City of Cebu heretofore
quoted, in very clear and unequivocal terms, states that
"Property thus withdrawn from public servitude may be
used or conveyed for any purpose for which other real
property belonging to the City may be lawfully used or
conveyed."
Accordingly, the withdrawal of the property in question
from public use and its subsequent sale to the petitioner is
valid. Hence, the petitioner has a registrable title over the
lot in question. (66 SCRA at 484-; emphasis supplied)
Thus, again as pointed out by Sarmiento J., in his separate opinion, in the
case of property owned by municipal corporations simple non-use or the
actual dedication of public property to some use other than "public use" or
some "public service", was sufficient legally to convert such property into
patrimonial property (Municipality of Oas v. Roa, 7 Phil. 20 [1906]-
Municipality of Hinunganan v. Director of Lands 24 Phil. 124 [1913];
Province of Zamboanga del Norte v. City of Zamboanga, 22 SCRA 1334
(1968).
I would also add that such was the case not only in respect of' property of
municipal corporations but also in respect of property of the State itself.
Manresa in commenting on Article 341 of the 1889 Spanish Civil Code
which has been carried over verbatim into our Civil Code by Article 422
thereof, wrote:
La dificultad mayor en todo esto estriba, naturalmente, en
fijar el momento en que los bienes de dominio publico
dejan de serlo. Si la Administracion o la autoridad
competente legislative realizan qun acto en virtud del cual
cesa el destino o uso publico de los bienes de que se trata
naturalmente la dificultad queda desde el primer momento
resuelta. Hay un punto de partida cierto para iniciar las
relaciones juridicas a que pudiera haber lugar Pero puede
ocurrir que no haya taldeclaracion expresa, legislativa or
administrativa, y, sin embargo, cesar de hecho el destino
publico de los bienes; ahora bien, en este caso, y para los
efectos juridicos que resultan de entrar la cosa en el
comercio de los hombres,' se entedera que se ha verificado
la conversion de los bienes patrimoniales?
El citado tratadista Ricci opina, respecto del antiguo Codigo
italiano, por la afirmativa, y por nuestra parte creemos que
tal debe ser la soluciion. El destino de las cosas no
depende tanto de una declaracion expresa como del uso
publico de las mismas, y cuanda el uso publico cese con
respecto de determinados bienes, cesa tambien su
situacion en el dominio publico. Si una fortaleza en ruina
se abandona y no se repara, si un trozo de la via publica
se abandona tambien por constituir otro nuevo an mejores
condiciones....ambos bienes cesan de estar Codigo, y leyes
especiales mas o memos administrativas. (3 Manresa,
Comentarios al Codigo Civil Espanol, p. 128 [7a ed.; 1952)
(Emphasis supplied)
The majority opinion says that none of the executive acts pointed to by the
Government purported, expressly or definitely, to convert the Roppongi
property into patrimonial property — of the Republic. Assuming that to be
the case, it is respectfully submitted that cumulative effect of the
executive acts here involved was to convert property originally intended
for and devoted to public service into patrimonial property of the State,
that is, property susceptible of disposition to and appropration by private
persons. These executive acts, in their totality if not each individual act,
make crystal clear the intent of the Executive Department to effect such
conversion. These executive acts include:
(a) Administrative Order No. 3 dated 11 August 1985, which created a
Committee to study the disposition/utilization of the Government's
property in Japan, The Committee was composed of officials of the
Executive Department: the Executive Secretary; the Philippine
Ambassador to Japan; and representatives of the Department of Foreign
Affairs and the Asset Privatization Trust. On 19 September 1988, the
Committee recommended to the President the sale of one of the lots (the
lot specifically in Roppongi) through public bidding. On 4 October 1988,
the President approved the recommendation of the Committee.
On 14 December 1988, the Philippine Government by diplomatic note
informed the Japanese Ministry of Foreign Affairs of the Republic's
intention to dispose of the property in Roppongi. The Japanese
Government through its Ministry of Foreign Affairs replied that it
interposed no objection to such disposition by the Republic. Subsequently,
the President and the Committee informed the leaders of the House of
Representatives and of the Senate of the Philippines of the proposed
disposition of the Roppongi property.
(b) Executive Order No. 296, which was issued by the President on 25 July
1987. Assuming that the majority opinion is right in saying that Executive
Order No. 296 is insufficient to authorize the sale of the Roppongi
property, it is here submitted with respect that Executive Order No. 296 is
more than sufficient to indicate an intention to convert the
property previously devoted to public service into patrimonial property that
is capable of being sold or otherwise disposed of
(c) Non-use of the Roppongi lot for fourteen (14) years for diplomatic or
for any other public purposes. Assuming (but only arguendo) that non-use
does not, by itself, automatically convert the property into patrimonial
property. I respectfully urge that prolonged non-use, conjoined with the
other factors here listed, was legally effective to convert the lot in
Roppongi into patrimonial property of the State. Actually, as already
pointed out, case law involving property of municipal corporations is to the
effect that simple non-use or the actual dedication of public property to
some use other than public use or public service, was sufficient to convert
such property into patrimonial property of the local governmental entity
concerned. Also as pointed out above, Manresa reached the same
conclusion in respect of conversion of property of the public domain of the
State into property of the private domain of the State.
The majority opinion states that "abandonment cannot be inferred from
the non-use alone especially if the non-use was attributable not to the
Government's own deliberate and indubitable will but to lack of financial
support to repair and improve the property" (Majority Opinion, p. 13).
With respect, it may be stressed that there is no abandonment involved
here, certainly no abandonment of property or of property rights. What is
involved is the charge of the classification of the property from property of
the public domain into property of the private domain of the State.
Moreover, if for fourteen (14) years, the Government did not see fit to
appropriate whatever funds were necessary to maintain the property in
Roppongi in a condition suitable for diplomatic representation purposes,
such circumstance may, with equal logic, be construed as a manifestation
of the crystalizing intent to change the character of the property.
(d) On 30 March 1989, a public bidding was in fact held by the Executive
Department for the sale of the lot in Roppongi. The circumstance that this
bidding was not successful certainly does not argue against an intent to
convert the property involved into property that is disposable by bidding.
The above set of events and circumstances makes no sense at all if it does
not, as a whole, show at least the intent on the part of the Executive
Department (with the knowledge of the Legislative Department) to convert
the property involved into patrimonial property that is susceptible of being
sold.
II
Having reached an affirmative answer in respect of the first issue, it is
necessary to address the second issue of whether or not there exists legal
authority for the sale or disposition of the Roppongi property.
The majority opinion refers to Section 79(f) of the Revised Administrative
Code of 1917 which reads as follows:
SEC. 79 (f). Conveyances and contracts to which the
Government is a party. — In cases in which the
Government of the Republic of the Philippines is a party to
any deed or other instrument conveying the title to real
estate or to any other property the value of which is in
excess of one hundred thousand pesos, the respective
Department Secretary shall prepare the necessary papers
which, together with the proper recommendations, shall
be submitted to the Congress of the Philippines for
approval by the same. Such deed, instrument, or contract
shall be executed and signed by the President of the
Philippines on behalf of the Government of the Philippines
unless the authority therefor be expressly vested by law in
another officer. (Emphasis supplied)
The majority opinion then goes on to state that: "[T]he requirement has
been retained in Section 4, Book I of the Administrative Code of 1987
(Executive Order No. 292)" which reads:
SEC. 48. Official Authorized to Convey Real Property. —
Whenever real property of the Government is authorized
by law to be conveyed, the deed of conveyance shall be
executed in behalf of the government by the following:
(1) For property belonging to and titled in the name of the
Republic of the Philippines, by the President, unless the
authority therefor is expressly vested by law in another
officer.
(2) For property belonging to the Republic of the
Philippines but titled in the name of any political
subdivision or of any corporate agency or instrumentality,
by the executive head of the agency or instrumentality.
(Emphasis supplied)
Two points need to be made in this connection. Firstly, the requirement of
obtaining specific approval of Congress when the price of the real
property being disposed of is in excess of One Hundred Thousand Pesos
(P100,000.00) under the Revised Administrative Code of 1917, has
been deleted from Section 48 of the 1987 Administrative Code. What
Section 48 of the present Administrative Code refers to is authorization by
law for the conveyance. Section 48 does not purport to be itself a source
of legal authority for conveyance of real property of the Government. For
Section 48 merely specifies the official authorized to execute and sign on
behalf of the Government the deed of conveyance in case of such a
conveyance.
Secondly, examination of our statute books shows that authorization by
law for disposition of real property of the private domain of the
Government, has been granted by Congress both in the form of (a) a
general, standing authorization for disposition of patrimonial property of
the Government; and (b) specific legislation authorizing the disposition of
particular pieces of the Government's patrimonial property.
Standing legislative authority for the disposition of land of the private
domain of the Philippines is provided by Act No. 3038, entitled "An Act
Authorizing the Secretary of Agriculture and Natural Resources to Sell or
Lease Land of the Private Domain of the Government of the Philippine
Islands (now Republic of the Philippines)", enacted on 9 March 1922. The
full text of this statute is as follows:
Be it enacted by the Senate and House of Representatives
of the Philippines in Legislature assembled and by the
authority of the same:
SECTION 1. The Secretary of Agriculture and Natural
Resources (now Secretary of the Environment and Natural
Resources) is hereby authorized to sell or lease land of the
private domain of the Government of the Philippine
Islands, or any part thereof, to such persons, corporations
or associations as are, under the provisions of Act
 Numbered Twenty-eight hundred and seventy-four, (now
Commonwealth Act No. 141, as amended) known as the
Public Land Act, entitled to apply for the purchase or lease
or agricultural public land.
SECTION 2. The sale of the land referred to in the
preceding section shall, if such land is agricultural, be
made in the manner and subject to the limitations
prescribed in chapters five and six, respectively, of said
Public Land Act, and if it be classified differently, in
conformity with the provisions of chapter nine of said Act:
Provided, however, That the land necessary for the public
service shall be exempt from the provisions of this Act.
SECTION 3. This Act shall take effect on its approval.
Approved, March 9, 1922. (Emphasis supplied)
Lest it be assumed that Act No. 3038 refers only to agricultural lands of
the private domain of the State, it must be noted that Chapter 9 of the old
Public Land Act (Act No. 2874) is now Chapter 9 of the present Public Land
Act (Commonwealth Act No. 141, as amended) and that both statutes
refer to: "any tract of land of the public domain which being neither timber
nor mineral land, is intended to be used for residential purposes or
for commercial or industrial purposes other than agricultural" (Emphasis
supplied).i•t•c-aüsl In other words, the statute covers the sale or lease or
residential, commercial or industrial land of the private domain of the
State.
Implementing regulations have been issued for the carrying out of the
provisions of Act No. 3038. On 21 December 1954, the then Secretary of
Agriculture and Natural Resources promulgated Lands Administrative
Orders Nos. 7-6 and 7-7 which were entitled, respectively:
"Supplementary Regulations Governing the Sale of the Lands of the Private
Domain of the Republic of the Philippines"; and "Supplementary
Regulations Governing the Lease of Lands of Private Domain of the
Republic of the Philippines" (text in 51 O.G. 28-29 [1955]).
It is perhaps well to add that Act No. 3038, although now sixty-eight (68)
years old, is still in effect and has not been repealed. 1
Specific legislative authorization for disposition of particular patrimonial
properties of the State is illustrated by certain earlier statutes. The first of
these was Act No. 1120, enacted on 26 April 1904, which provided for the
disposition of the friar lands, purchased by the Government from the
Roman Catholic Church, to bona fide settlers and occupants thereof or to
other persons. In Jacinto v. Director of Lands (49 Phil. 853 [1926]), these
friar lands were held to be private and patrimonial properties of the State.
Act No. 2360, enacted on -28 February 1914, authorized the sale of
the San Lazaro Estate located in the City of Manila, which had also been
purchased by the Government from the Roman Catholic Church. In
January 1916, Act No. 2555 amended Act No. 2360 by including therein all
lands and buildings owned by the Hospital and the Foundation of San
Lazaro theretofor leased by private persons, and which were also acquired
by the Philippine Government.
After the enactment in 1922 of Act No. 3038, there appears, to my
knowledge, to be only one statute authorizing the President to dispose of a
specific piece of property. This statute is Republic Act No. 905, enacted on
20 June 1953, which authorized the
President to sell an Identified parcel of land of the private domain of the
National Government to the National Press Club of the Philippines, and to
other recognized national associations of professionals with academic
standing, for the nominal price of P1.00. It appears relevant to note that
Republic Act No. 905 was not an outright disposition in perpetuity of the
property involved- it provided for reversion of the property to the National
Government in case the National Press Club stopped using it for its
headquarters. What Republic Act No. 905 authorized was really
a donation, and not a sale.
The basic submission here made is that Act No. 3038 provides standing
legislative authorization for disposition of the Roppongi property which, in
my view, has been converted into patrimonial property of the Republic. 2
To some, the submission that Act No. 3038 applies not only to lands of the
private domain of the State located in the Philippines but also to
patrimonial property found outside the Philippines, may appear strange or
unusual. I respectfully submit that such position is not any more unusual
or strange than the assumption that Article 420 of the Civil Code applies
not only to property of the Republic located within Philippine territory but
also to property found outside the boundaries of the Republic.
It remains to note that under the well-settled doctrine that heads of
Executive Departments are alter egos of the President (Villena v. Secretary
of the Interior, 67 Phil. 451 [1939]), and in view of the constitutional
power of control exercised by the President over department heads (Article
VII, Section 17,1987 Constitution), the President herself may carry out the
function or duty that is specifically lodged in the Secretary of the
Department of Environment and Natural Resources (Araneta v.
Gatmaitan 101 Phil. 328 [1957]). At the very least, the President retains
the power to approve or disapprove the exercise of that function or duty
when done by the Secretary of Environment and Natural Resources.
It is hardly necessary to add that the foregoing analyses and submissions
relate only to the austere question of existence of legal power or authority.
They have nothing to do with much debated questions of wisdom or
propriety or relative desirability either of the proposed disposition itself or
of the proposed utilization of the anticipated proceeds of the property
involved. These latter types of considerations He within the sphere of
responsibility of the political departments of government the Executive and
the Legislative authorities.
For all the foregoing, I vote to dismiss the Petitions for Prohibition in both
G.R. Nos. 92013 and 92047.
Fernan, C.J., Narvasa, Gancayco, Cortes and Medialdea, JJ., concurring.
Separate Opinions
CRUZ, J., concurring:
I concur completely with the excellent ponencia of Mr. Justice Gutierrez
and will add the following observations only for emphasis.
It is clear that the respondents have failed to show the President's legal
authority to sell the Roppongi property. When asked to do so at the
hearing on these petitions, the Solicitor General was at best ambiguous,
although I must add in fairness that this was not his fault. The fact is that
there is -no such authority. Legal expertise alone cannot conjure that
statutory permission out of thin air.
Exec. Order No. 296, which reads like so much legislative, double talk,
does not contain such authority. Neither does Rep. Act No. 6657, which
simply allows the proceeds of the sale of our properties abroad to be used
for the comprehensive agrarian reform program. Senate Res. No. 55 was a
mere request for the deferment of the scheduled sale of tile Roppongi
property, possibly to stop the transaction altogether; and ill any case it is
not a law. The sale of the said property may be authorized only by
Congress through a duly enacted statute, and there is no such law.
Once again, we have affirmed the principle that ours is a government of
laws and not of men, where every public official, from the lowest to the
highest, can act only by virtue of a valid authorization. I am happy to note
that in the several cases where this Court has ruled against her, the
President of the Philippines has submitted to this principle with becoming
grace.
PADILLA, J., concurring:
I concur in the decision penned by Mr. Justice Gutierrez, Jr., I only wish to
make a few observations which could help in further clarifying the issues.
Under our tripartite system of government ordained by the Constitution, it
is Congress that lays down or determines policies. The President executes
such policies. The policies determined by Congress are embodied in
legislative enactments that have to be approved by the President to
become law. The President, of course, recommends to Congress the
approval of policies but, in the final analysis, it is Congress that is the
policy - determining branch of government.
The judiciary interprets the laws and, in appropriate cases, determines
whether the laws enacted by Congress and approved by the President, and
presidential acts implementing such laws, are in accordance with the
Constitution.
The Roppongi property was acquired by the Philippine government
pursuant to the reparations agreement between the Philippine and
Japanese governments. Under such agreement, this property was acquired
by the Philippine government for a specific purpose, namely, to serve as
the site of the Philippine Embassy in Tokyo, Japan. Consequently,
Roppongi is a property of public dominion and intended for public service,
squarely falling within that class of property under Art. 420 of the Civil
Code, which provides:
Art. 420. The following things are property of public
dominion :
(1) ...
(2) Those which belong to the State, without being for
public use, and are intended for some public service or for
the development of the national wealth. (339a)
Public dominion property intended for public service cannot be alienated
unless the property is first transformed into private property of the state
otherwise known as patrimonial property of the state. 1 The transformation
of public dominion property to state patrimonial property involves, to my
mind, a policy decision. It is a policy decision because the treatment of the
property varies according to its classification. Consequently, it is Congress
which can decide and declare the conversion of Roppongi from a public
dominion property to a state patrimonial property. Congress has made no
such decision or declaration.
Moreover, the sale of public property (once converted from public
dominion to state patrimonial property) must be approved by Congress,
for this again is a matter of policy (i.e. to keep or dispose of the property).
Sec. 48, Book 1 of the Administrative Code of 1987 provides:
SEC. 48. Official Authorized to Convey Real Property. —
Whenever real property of the Government is authorized
by law to be conveyed, the deed of conveyance shall be
executed in behalf of the government by the following:
(1) For property belonging to and titled in
the name of the Republic of the Philippines,
by the President, unless the authority
therefor is expressly vested by law in
another officer.
(2) For property belonging to the Republic
of the Philippines but titled in the name of
any political subdivision or of any corporate
agency or instrumentality, by the executive
head of the agency or instrumentality.
(Emphasis supplied)
But the record is bare of any congressional decision or approval to sell
Roppongi. The record is likewise bare of any congressional authority
extended to the President to sell Roppongi thru public bidding or
otherwise.
It is therefore, clear that the President cannot sell or order the sale of
Roppongi thru public bidding or otherwise without a prior congressional
approval, first, converting Roppongi from a public dominion property to a
state patrimonial property, and, second, authorizing the President to sell
the same.
ACCORDINGLY, my vote is to GRANT the petition and to make PERMANENT
the temporary restraining order earlier issued by this Court.
SARMIENTO, J., concurring:
The central question, as I see it, is whether or not the so-called "Roppongi
property' has lost its nature as property of public dominion, and hence,
has become patrimonial property of the State. I understand that the
parties are agreed that it was property intended for "public service" within
the contemplation of paragraph (2), of Article 430, of the Civil Code, and
accordingly, land of State dominion, and beyond human commerce. The
lone issue is, in the light of supervening developments, that is non-user
thereof by the National Government (for diplomatic purposes) for the last
thirteen years; the issuance of Executive Order No. 296 making it available
for sale to any interested buyer; the promulgation of Republic Act No.
6657, the Comprehensive Agrarian Reform Law, making available for the
program's financing, State assets sold; the approval by the President of
the recommendation of the investigating committee formed to study the
property's utilization; and the issuance of Resolution No. 55 of the
Philippine Senate requesting for the deferment of its disposition it,
"Roppongi", is still property of the public dominion, and if it is not, how it
lost that character.
When land of the public dominion ceases to be one, or when the change
takes place, is a question our courts have debated early. In a 1906
decision, 1 it was held that property of the public dominion, a public plaza
in this instance, becomes patrimonial upon use thereof for purposes other
than a plaza. In a later case, 2 this ruling was reiterated. Likewise, it has
been held that land, originally private property, has become of public
dominion upon its donation to the town and its conversion and use as a
public plaza. 3 It is notable that under these three cases, the character of
the property, and any change occurring therein, depends on the actual use
to which it is dedicated. 4
Much later, however, the Court held that "until a formal declaration on the
part of the Government, through the executive department or the
Legislative, to the effect that the land . . . is no longer needed for [public]
service- for public use or for special industries, [it] continue[s] to be part
of the public [dominion], not available for private expropriation or
ownership." 5 So also, it was ruled that a political subdivision (the City of
Cebu in this case) alone may declare (under its charter) a city road
abandoned and thereafter, to dispose of it. 6
In holding that there is "a need for a law or formal declaration to withdraw
the Roppongi property from public domain to make it alienable and a land
for legislative authority to allow the sale of the property" 7 the majority
lays stress to the fact that: (1) An affirmative act — executive or
legislative — is necessary to reclassify property of the public dominion, and
(2) a legislative decree is required to make it alienable. It also clears the
uncertainties brought about by earlier interpretations that the nature of
property-whether public or patrimonial is predicated on the manner it is
actually used, or not used, and in the same breath, repudiates the
Government's position that the continuous non-use of "Roppongi", among
other arguments, for "diplomatic purposes", has turned it into State
patrimonial property.
I feel that this view corresponds to existing pronouncements of this Court,
among other things, that: (1) Property is presumed to be State property in
the absence of any showing to the contrary; 8 (2) With respect to forest
lands, the same continue to be lands of the public dominion unless and
until reclassified by the Executive Branch of the Government; 9 and (3) All
natural resources, under the Constitution, and subject to exceptional
cases, belong to the State. 10
I am elated that the Court has banished previous uncertainties.
FELICIANO, J., dissenting
With regret, I find myself unable to share the conclusions reached by Mr.
Justice Hugo E. Gutierrez, Jr.
For purposes of this separate opinion, I assume that the piece of land
located in 306 Roppongi, 5-Chome, Minato-ku Tokyo, Japan (hereinafter
referred to as the "Roppongi property") may be characterized as property
of public dominion, within the meaning of Article 420 (2) of the Civil Code:
[Property] which belong[s] to the State, without being for
public use, and are intended for some public service -.
It might not be amiss however, to note that the appropriateness of trying
to bring within the confines of the simple threefold classification found in
Article 420 of the Civil Code ("property for public use property "intended
for some public service" and property intended "for the development of the
national wealth") all property owned by the Republic of the Philippines
whether found within the territorial boundaries of the Republic or located
within the territory of another sovereign State, is not self-evident. The first
item of the classification property intended for public use — can scarcely
be properly applied to property belonging to the Republic but found within
the territory of another State. The third item of the classification property
intended for the development of the national wealth is illustrated, in Article
339 of the Spanish Civil Code of 1889, by mines or mineral properties.
Again, mineral lands owned by a sovereign State are rarely, if ever, found
within the territorial base of another sovereign State. The task of
examining in detail the applicability of the classification set out in Article
420 of our Civil Code to property that the Philippines happens to own
outside its own boundaries must, however, be left to academicians.
For present purposes, too, I agree that there is no question of conflict of
laws that is, at the present time, before this Court. The issues before us
relate essentially to authority to sell the Roppongi property so far as
Philippine law is concerned.
The majority opinion raises two (2) issues: (a) whether or not the
Roppongi property has been converted into patrimonial property or
property of the private domain of the State; and (b) assuming an
affirmative answer to (a), whether or not there is legal authority to dispose
of the Roppongi property.
I
Addressing the first issue of conversion of property of public dominion
intended for some public service, into property of the private domain of
the Republic, it should be noted that the Civil Code does not address the
question of who has authority to effect such conversion. Neither does the
Civil Code set out or refer to any procedure for such conversion.
Our case law, however, contains some fairly explicit pronouncements on
this point, as Justice Sarmiento has pointed out in his concurring opinion.
In Ignacio v. Director of Lands (108 Phils. 335 [1960]), petitioner Ignacio
argued that if the land in question formed part of the public domain, the
trial court should have declared the same no longer necessary for public
use or public purposes and which would, therefore, have become
disposable and available for private ownership. Mr. Justice Montemayor,
speaking for the Court, said:
Article 4 of the Law of Waters of 1866 provides that when
a portion of the shore is no longer washed by the waters of
the sea and is not necessary for purposes of public utility,
or for the establishment of special industries, or for coast-
guard service, the government shall declare it to be the
property of the owners of the estates adjacent thereto and
as an increment thereof. We believe that only the
executive and possibly the legislative departments have
the authority and the power to make the declaration that
any land so gained by the sea, is not necessary for
purposes of public utility, or for the establishment of
special industries, or for coast-guard service. If no such
declaration has been made by said departments, the lot in
question forms part of the public domain. (Natividad v.
Director of Lands, supra.)
The reason for this pronouncement, according to this
Tribunal in the case of Vicente Joven y Monteverde v.
 Director of Lands, 93 Phil., 134 (cited in Velayo's Digest,
Vol. 1, p. 52).
... is undoubtedly that the courts are neither primarily
called upon, nor indeed in a position to determine whether
any public land are to be used for the purposes specified in
Article 4 of the Law of Waters. Consequently, until a formal
declaration on the part of the Government, through the
executive department or the Legislature, to the effect that
the land in question is no longer needed for coast-guard
service, for public use or for special industries, they
continue to be part of the public domain not available for
private appropriation or ownership. (108 Phil. at 338-339;
emphasis supplied)
Thus, under Ignacio, either the Executive Department or the Legislative
Department may convert property of the State of public dominion into
patrimonial property of the State. No particular formula or procedure of
conversion is specified either in statute law or in case law. Article 422 of
the Civil Code simply states that: "Property of public dominion, when no
longer intended for public use or for public service, shall form part of the
patrimonial property of the State". I respectfully submit, therefore, that
the only requirement which is legitimately imposable is that the intent to
convert must be reasonably clear from a consideration of the acts or acts
of the Executive Department or of the Legislative Department which are
said to have effected such conversion.
The same legal situation exists in respect of conversion of property of
public dominion belonging to municipal corporations, i.e., local
governmental units, into patrimonial property of such entities.
In Cebu Oxygen Acetylene v. Bercilles (66 SCRA 481 [1975]), the City
Council of Cebu by resolution declared a certain portion of an existing
street as an abandoned road, "the same not being included in the city
development plan". Subsequently, by another resolution, the City Council
of Cebu authorized the acting City Mayor to sell the land through public
bidding. Although there was no formal and explicit declaration of
conversion of property for public use into patrimonial property, the
Supreme Court said:
xxx xxx xxx
(2) Since that portion of the city street subject of
petitioner's application for registration of title was
withdrawn from public use, it follows that such withdrawn
portion becomes patrimonial property which can be the
object of an ordinary contract.
Article 422 of the Civil Code expressly provides that
"Property of public dominion, when no longer intended for
public use of for public service, shall form part of the
patrimonial property of the State."
Besides, the Revised Charter of the City of Cebu heretofore
quoted, in very clear and unequivocal terms, states that
"Property thus withdrawn from public servitude may be
used or conveyed for any purpose for which other real
property belonging to the City may be lawfully used or
conveyed."
Accordingly, the withdrawal of the property in question
from public use and its subsequent sale to the petitioner is
valid. Hence, the petitioner has a registrable title over the
lot in question. (66 SCRA at 484-; emphasis supplied)
Thus, again as pointed out by Sarmiento J., in his separate opinion, in the
case of property owned by municipal corporations simple non-use or the
actual dedication of public property to some use other than "public use" or
some "public service", was sufficient legally to convert such property into
patrimonial property (Municipality of Oas v. Roa, 7 Phil. 20 [1906]-
Municipality of Hinunganan v. Director of Lands 24 Phil. 124 [1913];
Province of Zamboanga del Norte v. City of Zamboanga, 22 SCRA 1334
(1968).
I would also add that such was the case not only in respect of' property of
municipal corporations but also in respect of property of the State itself.
Manresa in commenting on Article 341 of the 1889 Spanish Civil Code
which has been carried over verbatim into our Civil Code by Article 422
thereof, wrote:
La dificultad mayor en todo esto estriba, naturalmente, en
fijar el momento en que los bienes de dominio publico
dejan de serlo. Si la Administracion o la autoridad
competente legislative realizan qun acto en virtud del cual
cesa el destino o uso publico de los bienes de que se trata
naturalmente la dificultad queda desde el primer momento
resuelta. Hay un punto de partida cierto para iniciar las
relaciones juridicas a que pudiera haber lugar Pero puede
ocurrir que no haya taldeclaracion expresa, legislativa or
administrativa, y, sin embargo, cesar de hecho el destino
publico de los bienes; ahora bien, en este caso, y para los
efectos juridicos que resultan de entrar la cosa en el
comercio de los hombres,' se entedera que se ha verificado
la conversion de los bienes patrimoniales?
 El citado tratadista Ricci opina, respecto del antiguo Codigo
italiano, por la afirmativa, y por nuestra parte creemos que
tal debe ser la soluciion. El destino de las cosas no
depende tanto de una declaracion expresa como del uso
publico de las mismas, y cuanda el uso publico cese con
respecto de determinados bienes, cesa tambien su
situacion en el dominio publico. Si una fortaleza en ruina
se abandona y no se repara, si un trozo de la via publica
se abandona tambien por constituir otro nuevo an mejores
condiciones....ambos bienes cesan de estar Codigo, y leyes
especiales mas o memos administrativas. (3 Manresa,
Comentarios al Codigo Civil Espanol, p. 128 [7a ed.; 1952)
(Emphasis supplied)
The majority opinion says that none of the executive acts pointed to by the
Government purported, expressly or definitely, to convert the Roppongi
property into patrimonial property — of the Republic. Assuming that to be
the case, it is respectfully submitted that cumulative effect of the
executive acts here involved was to convert property originally intended
for and devoted to public service into patrimonial property of the State,
that is, property susceptible of disposition to and appropration by private
persons. These executive acts, in their totality if not each individual act,
make crystal clear the intent of the Executive Department to effect such
conversion. These executive acts include:
(a) Administrative Order No. 3 dated 11 August 1985, which created a
Committee to study the disposition/utilization of the Government's
property in Japan, The Committee was composed of officials of the
Executive Department: the Executive Secretary; the Philippine
Ambassador to Japan; and representatives of the Department of Foreign
Affairs and the Asset Privatization Trust. On 19 September 1988, the
Committee recommended to the President the sale of one of the lots (the
lot specifically in Roppongi) through public bidding. On 4 October 1988,
the President approved the recommendation of the Committee.
On 14 December 1988, the Philippine Government by diplomatic note
informed the Japanese Ministry of Foreign Affairs of the Republic's
intention to dispose of the property in Roppongi. The Japanese
Government through its Ministry of Foreign Affairs replied that it
interposed no objection to such disposition by the Republic. Subsequently,
the President and the Committee informed the leaders of the House of
Representatives and of the Senate of the Philippines of the proposed
disposition of the Roppongi property.
(b) Executive Order No. 296, which was issued by the President on 25 July
1987. Assuming that the majority opinion is right in saying that Executive
Order No. 296 is insufficient to authorize the sale of the Roppongi
property, it is here submitted with respect that Executive Order No. 296 is
more than sufficient to indicate an intention to convert the
property previously devoted to public service into patrimonial property that
is capable of being sold or otherwise disposed of
(c) Non-use of the Roppongi lot for fourteen (14) years for diplomatic or
for any other public purposes. Assuming (but only arguendo) that non-use
does not, by itself, automatically convert the property into patrimonial
property. I respectfully urge that prolonged non-use, conjoined with the
other factors here listed, was legally effective to convert the lot in
Roppongi into patrimonial property of the State. Actually, as already
pointed out, case law involving property of municipal corporations is to the
effect that simple non-use or the actual dedication of public property to
some use other than public use or public service, was sufficient to convert
such property into patrimonial property of the local governmental entity
concerned. Also as pointed out above, Manresa reached the same
conclusion in respect of conversion of property of the public domain of the
State into property of the private domain of the State.
The majority opinion states that "abandonment cannot be inferred from
the non-use alone especially if the non-use was attributable not to the
Government's own deliberate and indubitable will but to lack of financial
support to repair and improve the property" (Majority Opinion, p. 13).
With respect, it may be stressed that there is no abandonment involved
here, certainly no abandonment of property or of property rights. What is
involved is the charge of the classification of the property from property of
the public domain into property of the private domain of the State.
Moreover, if for fourteen (14) years, the Government did not see fit to
appropriate whatever funds were necessary to maintain the property in
Roppongi in a condition suitable for diplomatic representation purposes,
such circumstance may, with equal logic, be construed as a manifestation
of the crystalizing intent to change the character of the property.
(d) On 30 March 1989, a public bidding was in fact held by the Executive
Department for the sale of the lot in Roppongi. The circumstance that this
bidding was not successful certainly does not argue against an intent to
convert the property involved into property that is disposable by bidding.
The above set of events and circumstances makes no sense at all if it does
not, as a whole, show at least the intent on the part of the Executive
Department (with the knowledge of the Legislative Department) to convert
the property involved into patrimonial property that is susceptible of being
sold.
II
Having reached an affirmative answer in respect of the first issue, it is
necessary to address the second issue of whether or not there exists legal
authority for the sale or disposition of the Roppongi property.
The majority opinion refers to Section 79(f) of the Revised Administrative
Code of 1917 which reads as follows:
SEC. 79 (f). Conveyances and contracts to which the
Government is a party. — In cases in which the
Government of the Republic of the Philippines is a party to
any deed or other instrument conveying the title to real
estate or to any other property the value of which is in
excess of one hundred thousand pesos, the respective
Department Secretary shall prepare the necessary papers
which, together with the proper recommendations, shall
be submitted to the Congress of the Philippines for
approval by the same. Such deed, instrument, or contract
shall be executed and signed by the President of the
Philippines on behalf of the Government of the Philippines
unless the authority therefor be expressly vested by law in
another officer. (Emphasis supplied)
The majority opinion then goes on to state that: "[T]he requirement has
been retained in Section 4, Book I of the Administrative Code of 1987
(Executive Order No. 292)" which reads:
SEC. 48. Official Authorized to Convey Real Property. —
Whenever real property of the Government is authorized
by law to be conveyed, the deed of conveyance shall be
executed in behalf of the government by the following:
(1) For property belonging to and titled in the name of the
Republic of the Philippines, by the President, unless the
authority therefor is expressly vested by law in another
officer.
(2) For property belonging to the Republic of the
Philippines but titled in the name of any political
subdivision or of any corporate agency or instrumentality,
by the executive head of the agency or instrumentality.
(Emphasis supplied)
Two points need to be made in this connection. Firstly, the requirement of
obtaining specific approval of Congress when the price of the real
property being disposed of is in excess of One Hundred Thousand Pesos
(P100,000.00) under the Revised Administrative Code of 1917, has
been deleted from Section 48 of the 1987 Administrative Code. What
Section 48 of the present Administrative Code refers to is authorization by
law for the conveyance. Section 48 does not purport to be itself a source
of legal authority for conveyance of real property of the Government. For
Section 48 merely specifies the official authorized to execute and sign on
behalf of the Government the deed of conveyance in case of such a
conveyance.
Secondly, examination of our statute books shows that authorization by
law for disposition of real property of the private domain of the
Government, has been granted by Congress both in the form of (a) a
general, standing authorization for disposition of patrimonial property of
the Government; and (b) specific legislation authorizing the disposition of
particular pieces of the Government's patrimonial property.
Standing legislative authority for the disposition of land of the private
domain of the Philippines is provided by Act No. 3038, entitled "An Act
Authorizing the Secretary of Agriculture and Natural Resources to Sell or
Lease Land of the Private Domain of the Government of the Philippine
Islands (now Republic of the Philippines)", enacted on 9 March 1922. The
full text of this statute is as follows:
Be it enacted by the Senate and House of Representatives
of the Philippines in Legislature assembled and by the
authority of the same:
SECTION 1. The Secretary of Agriculture and Natural
Resources (now Secretary of the Environment and Natural
Resources) is hereby authorized to sell or lease land of the
private domain of the Government of the Philippine
Islands, or any part thereof, to such persons, corporations
or associations as are, under the provisions of Act
Numbered Twenty-eight hundred and seventy-four, (now
Commonwealth Act No. 141, as amended) known as the
Public Land Act, entitled to apply for the purchase or lease
or agricultural public land.
SECTION 2. The sale of the land referred to in the
preceding section shall, if such land is agricultural, be
made in the manner and subject to the limitations
prescribed in chapters five and six, respectively, of said
Public Land Act, and if it be classified differently, in
conformity with the provisions of chapter nine of said Act:
Provided, however, That the land necessary for the public
service shall be exempt from the provisions of this Act.
SECTION 3. This Act shall take effect on its approval.
 Approved, March 9, 1922. (Emphasis supplied)
Lest it be assumed that Act No. 3038 refers only to agricultural lands of
the private domain of the State, it must be noted that Chapter 9 of the old
Public Land Act (Act No. 2874) is now Chapter 9 of the present Public Land
Act (Commonwealth Act No. 141, as amended) and that both statutes
refer to: "any tract of land of the public domain which being neither timber
nor mineral land, is intended to be used for residential purposes or
for commercial or industrial purposes other than agricultural" (Emphasis
supplied). In other words, the statute covers the sale or lease or
residential, commercial or industrial land of the private domain of the
State.
Implementing regulations have been issued for the carrying out of the
provisions of Act No. 3038. On 21 December 1954, the then Secretary of
Agriculture and Natural Resources promulgated Lands Administrative
Orders Nos. 7-6 and 7-7 which were entitled, respectively:
"Supplementary Regulations Governing the Sale of the Lands of the Private
Domain of the Republic of the Philippines"; and "Supplementary
Regulations Governing the Lease of Lands of Private Domain of the
Republic of the Philippines" (text in 51 O.G. 28-29 [1955]).
It is perhaps well to add that Act No. 3038, although now sixty-eight (68)
years old, is still in effect and has not been repealed. 1
Specific legislative authorization for disposition of particular patrimonial
properties of the State is illustrated by certain earlier statutes. The first of
these was Act No. 1120, enacted on 26 April 1904, which provided for the
disposition of the friar lands, purchased by the Government from the
Roman Catholic Church, to bona fide settlers and occupants thereof or to
other persons. In Jacinto v. Director of Lands (49 Phil. 853 [1926]), these
friar lands were held to be private and patrimonial properties of the State.
Act No. 2360, enacted on -28 February 1914, authorized the sale of
the San Lazaro Estate located in the City of Manila, which had also been
purchased by the Government from the Roman Catholic Church. In
January 1916, Act No. 2555 amended Act No. 2360 by including therein all
lands and buildings owned by the Hospital and the Foundation of San
Lazaro theretofor leased by private persons, and which were also acquired
by the Philippine Government.
After the enactment in 1922 of Act No. 3038, there appears, to my
knowledge, to be only one statute authorizing the President to dispose of a
specific piece of property. This statute is Republic Act No. 905, enacted on
20 June 1953, which authorized the
President to sell an Identified parcel of land of the private domain of the
National Government to the National Press Club of the Philippines, and to
other recognized national associations of professionals with academic
standing, for the nominal price of P1.00. It appears relevant to note that
Republic Act No. 905 was not an outright disposition in perpetuity of the
property involved- it provided for reversion of the property to the National
Government in case the National Press Club stopped using it for its
headquarters. What Republic Act No. 905 authorized was really
a donation, and not a sale.
The basic submission here made is that Act No. 3038 provides standing
legislative authorization for disposition of the Roppongi property which, in
my view, has been converted into patrimonial property of the Republic. 2
To some, the submission that Act No. 3038 applies not only to lands of the
private domain of the State located in the Philippines but also to
patrimonial property found outside the Philippines, may appear strange or
unusual. I respectfully submit that such position is not any more unusual
or strange than the assumption that Article 420 of the Civil Code applies
not only to property of the Republic located within Philippine territory but
also to property found outside the boundaries of the Republic.
It remains to note that under the well-settled doctrine that heads of
Executive Departments are alter egos of the President (Villena v. Secretary
of the Interior, 67 Phil. 451 [1939]), and in view of the constitutional
power of control exercised by the President over department heads (Article
VII, Section 17,1987 Constitution), the President herself may carry out the
function or duty that is specifically lodged in the Secretary of the
Department of Environment and Natural Resources (Araneta v.
Gatmaitan 101 Phil. 328 [1957]). At the very least, the President retains
the power to approve or disapprove the exercise of that function or duty
when done by the Secretary of Environment and Natural Resources.
It is hardly necessary to add that the foregoing analyses and submissions
relate only to the austere question of existence of legal power or authority.
They have nothing to do with much debated questions of wisdom or
propriety or relative desirability either of the proposed disposition itself or
of the proposed utilization of the anticipated proceeds of the property
involved. These latter types of considerations He within the sphere of
responsibility of the political departments of government the Executive and
the Legislative authorities.
For all the foregoing, I vote to dismiss the Petitions for Prohibition in both
G.R. Nos. 92013 and 92047.
Republic of the Philippines
SUPREME COURT
Manila
 EN BANC
following decision: .
G.R. No. L-17240 January 31, 1962
CLEMENCIA B. VDA. DE VILLONGCO, ET AL., petitioners-appellees,
vs.
HON. FLORENCIO MORENO, in his capacity as Secretary,
Department of Public Works and Communications
and BENIGNO MUSNI, respondents-appellants.
E. Voltaire Garcia for petitioners-appellees.
Office of the Solicitor General for respondents-appellants.
LABRADOR, J.:
under the authority of the Secretary, who thereafter rendered the
Complainants allege that the conversion of this area into a
fishpond by the respondents deprived them of the uses of the area
as a fishing ground and for navigation. On the other hand, the
respondents contend that this area is owned by them as shown by
the title above-adverted to.
A relocation survey, based on the title, was made on the area in
question to determine whether the fishpond constructions and/or
works of the respondents are within the titled property. Said
survey shows that a portion of Manila Bay covering an area of
approximately 24,860 square meters was included as part of the
fishpond by the respondents.

The above-entitled case involves the application and interpretation of

The defense of respondents that the area in question being a
Republic Act. No. 2056, entitled "An Act to prohibit, remove and/or
private property, is not subject to the provisions of Republic Act
demolish the construction of dams, dikes or any works in public navigable
2056, deserves consideration. The area being covered by a
waters or waterways and in communal fishing grounds, to regulate works
Torrens Certificate of Title, the respondent's title thereon is
in such waters or waterways and in communal fishing grounds, and to
indefeasible and imprescriptible. As sufficiently established, the
provide penalties for its violation, and for other purposes." The pertinent
area in question is a foreshore land and is disposable under
provisions thereof in issue are Section 1 and the first part of Section 2,
Section 59 of the Public Land Law. However, of the enclosed
which read as follows:
portion, the area of 24,860 square meters has been conclusively
shown by the relocation survey as not within the boundaries of the
Sec. 2. — When it is found by the secretary of Public Works and titled property. Be that as it may, this portion is still of public
Communications, after due notice and hearing, that any dam, dike ownership and the complainants should, therefore, not be deprived
or any other works now existing or may hereinafter be constructed of its uses as a fishing ground and passageway.
encroaches into any public navigable river, stream, coastal waters
and any other public navigable waters or waterways, or that they
PREMISES CONSIDERED, it is hereby ordered that the respondents
are contructed in areas declared as communal fishing grounds, he
remove their fishpond works and/or constructions insofar as it
shall have the authority to order the removal of any such works
encroaches upon that portion of Manila Bay covering the area of
and give the party concerned a period not to exceed thirty days for
approximately 24,860 square meters and restore the original
the removal of the same; Provide, That fishpond constructions or
condition of said coastal water within thirty (30) days from receipt
works on communal fishing grounds introduced in good faith
of this decision: otherwise, this Office or its duly authorized
before the areas were proclaimed as fishing grounds shall be
representative shall remove the same at the expense of the
exempted from the provisions of this Act, provided such
respondents within ten (10) days following the expiration of the
constructions or works do not obstruct or impede the free passage
thirty-day period, without prejudice to instituting judicial action
of any navigable river, stream, or would not cause inundations of
against them under the provisions of Section 3 of R. A. 2056."
agricultural areas....".
(Annex "C", pp. 20-21) .

The facts involved in the case may be briefly stated as follows: On August
Clemencia B. Vda. de Villongco filed a motion to reconsider the decision,
15, 1958, Senator Rogelio de la Rosa complained with the Secretary of
but the same was denied by the Undersecretary in a resolution dated
Public Works and Communications against several fishpond owners in
August 5, 1959. Thereupon, on August 20, 1959, petitioner herein filed the
Macabebe, Pampanga, among whom is petitioner herein Clemencia B. Vda.
present suit in the Court of First Instance of Rizal, calling attention to the
de Villongco. The complaint charges that has appropriated a portion of the
above proceedings, especially the decision of the Secretary and the
coastal waters of Pampanga, locally known as "Pantion", converting
resolution of the Undersecretary denying the motion for reconsideration,
portions of the coastal areas into fishponds. Investigations were conducted
and arguing that Republic Act. No. 2056, under which the Secretary issued
the order above-quoted, is null and void as to conferring upon the
Secretary power to decide as to whether or not the dikes and other
constructions encroach upon coastal waters, public streams, communal
fishing grounds, etc.; that the Undersecretary acted without or in he
excess of jurisdiction in delegating reception of evidence, in causing
resurvey of the premises by a person who is not a duly licensed surveyor,
in violation of the agreement to that effect, in the absence of petitioner
Villongco; that the Secretary's order of demolition of the fishponds was
beyond the jurisdiction of said Secretary and is unconstitutional as an
encroachment upon the private rights of the petitioners, etc. Upon the
presentation of the petition, the court below issued a writ of preliminary
injunction against the enforcement of the Secretary's disputed order. Trial
of the case was had, with the submission of a stipulation of facts, with
exhibits, entered into between the parties, after which the court, through
Hon. Andres Reyes, rendered a decision declaring that the Secretary of
Public Works and Communications was in error in ordering the demolition
of the dikes and other constructions of the petitioner Vda. de Villongco, on
the ground that said dikes and other constructions fall under the exception
mentioned in Section 2 of Republic Act. No. 2056. We quote the order
herein:.
Without the necessity of resolving the various incidental issues
raised by the parties, the Court is of the opinion that the case at
bar hinges on only one vital issue-that is whether the petitioners
properly fall within the benefits of the exemption expressly
provided for under section 2 of Republic Act 2056, to wit:.
PROVIDED, That fishpond constructions on communal
fishing grounds introduced in good faith before the areas
were proclaimed as fishing grounds shall be exempted
from the provisions of this Act, provided such constructions
or works do not obstruct or impede the free passage of any
navigable river, stream, or would not cause inundations of
agricultural areas..
AND PROVIDED, FINALLY, that the removal of any such
works shall not impair fishponds completed or about to be
completed which do not encroach or obstruct any public
navigable river or stream and/or which would not cause
inundations of agricultural areas and which have been
constructed in good faith before the area was declared
communal fishing grounds.' .
A perusal of the above provisions reveals that the
petitioners herein would be entitled to the benefits of said
exemptions provided the following requisites are present:
first, that the constructions or works in question were
constructed in good faith before the areas were declared
communal fishing grounds; second, that said constructions
or works would not impede the free passage of any
navigable river or stream; and lastly, that the same would
not cause inundations of agricultural areas.
There is no question that the constructions of petitioners
would not cause inundations of agricultural areas. This was
admitted in the answer of respondent Secretary and later
included in the stipulation of facts. There is also no dispute
as to the fact that the same were constructed in good faith
before June 13, 1958 when Republic Act No. 2056 took
effect and therefore before any fishing ground could have
been declared communal." (pp. 2-3, of the decision).
The respondent Secretary has appealed from the above decision, alleging
the following errors: .
I
THE LOWER COURT ERRED IN GIVING DUE COURSE TO THE INSTANT
CASE FOR CERTIORARI AND PROHIBITION AND IN DECIDING THE SAME
WITHOUT CONSIDERING THE ISSUES INVOLVED THEREIN.
II
THE LOWER COURT ERRED IN INTERPRETING THE PROVISIONS OF
REPUBLIC ACT NO. 2056 WHICH, OTHERWISE, IS CLEAR AND
UNAMBIGUOUS, AND IN CONSTRUING THE EXEMPTING CLAUSE
PROVIDED IN SEC. 2 THEREOF TO INCLUDE FISHPOND CONSTRUCTIONS
OR WORK OUTSIDE THE AREAS DECLARED AS COMMUNAL FISHING
GROUNDS.
III
THE LOWER COURT ERRED IN HOLDING THAT THE APPELLEES FAIL
WITHIN SAID EXEMPTING PROVISION OF SECTION 2 OF REPUBLIC ACT
NO. 2056.
IV
THE LOWER COURT ERRED IN ISSUING EX-PARTE THE WRIT OF
PRELIMINARY INJUNCTION, AND LATER MAKING IT PERMANENT..
V
THE LOWER COURT ERRED IN GRANTING THE INSTANT PETITION
FOR CERTIORARI AND PROHIBITION.
An examination of the facts adduced at the trial shows that petitioner Vda.
de Villongco is the owner of a fishpond situated in Macabebe, Pampanga,
covered by Transfer Certificate of Title No. 7087 dated January 28, 1952,
containing an area of 90 hectares, 26 ares and 54 centares, bounded on
the SW and W by the Manila Bay and on the NW by the Manila Bay and the
Supang Maruginas (Annex B-Stipulation). A competent surveyor in the
person of the Dredge Operation Supervisor of the Department of Public
Works conducted an investigation and submitted a report (Annex E of the
Stipulation of Facts), with an accompanying sketch of the fishpond
showing the disputed portion, included within the dike of the petitioner.
The existing dike of the petitioner is a straight line from point A of Annex
E-1 to point D, and it includes a portion of public land indicated in red
(portion B-c in said Annex E-1, containing an area of 2 hectares, 48 ares
and 60 centares (24,860 square meters). The surveyor found the
following:
It seems that the average depth along the sea side of the dike A-D
as shown in the attached plan may be about one (1) foot M. L. L.
W.1äwphï1.ñët
That section B-C of the dike is along the prolongation of section A-
B towards point C and that no part of dike B-C protruding towards
the sea.
That navigation along dike A-D during low tide is limited to vessels
with a draft of about one foot.
That section B-C of the dike will obstruct navigation towards a
public domain (shaded red in the attached plan) with an indicated
area of about 24,880 square meters.
In my opinion, section B-C of the dike will not obstruct navigation
along or parallel to it." (Annex E - Stipulation) .
The court below held that said portion falls under the exception of Section
2 of Republic Act No. 2056, because it does not interfere with navigation
and does not produce inundation and the dikes were constructed before
the area was a fishing ground. (The parties have stipulated that there is
yet no order declaring the area as a fishing ground.)
A study of the provisions of Republic Act No. 2056, especially the sections
we quote above disclose that the authority granted the Secretary of Public
Works and Communications is to declare that the construction or building
of dams, dikes or any other works encroaching on navigable rivers,
streams, or any other navigable public waters or waterways is prohibited
and to order their removal or demolition. The area included in the dikes of
the petitioner, indicated in the red shaded portion in the Stipulation, Exh.
E-1, was not a part of the land titled in the name of the petitioner, as
shown by the fact that the titled land bounds on the W by a line from point
1 to point 19, point 19 to point 20 and point 20 to point 21 of Lot No. 2
indicated in the plan of the land. Said red shaded portion, which contains
an area of 24,860 square meters, is clearly, therefore, a portion of the
Manila Bay area or coastal area, which the petitioner has evidently
included within her dikes, perhaps to straighten the same. As the shaded
portion has a depth of 1 foot and low tide, it is evidently navigable at high
tide for vessels of deeper draft of 1 foot and at low tide navigable to those
of 1 foot draft. It is, therefore, a part of the water ways, taking into
account that the Manila Bay area, especially those bordering the fishponds
in the provinces of Pampanga, Bulacan and Rizal are waterways, especially
used by fishermen and fishpond owners to bring in their catch to market.
The shaded area, therefore, is a public property, not susceptible to
appropriation by any private individual, not only because it belongs to the
State but also because it belongs to the State but also because it is used
as a waterway..
Article 1. — The following are part of the National domain open to
public use:
xxx xxx xxx
2. The coast sea, that is, the maritime zone encircling the coasts,
to the full width recognized by international law. ...." (Art. 1,
paragraphs 1 and 2, Spanish Law of Waters; see also Insular
Government v. Aldecoa, 19 Phil. 505. 510.) .
The error of the court below lies in the fact that it considered the coast sea
as falling under the exception of Section 2. But an examination of Section
2 shows that coastal waters or public waterways are not included in the
exception. Only those works constructed on communal fishing grounds are
exempted; constructions on coastal waters or public waterways are not
subject to the exception. Aside from that fact, no inundation or free
passage of any navigable river can take place on the coastal waters or
waterways, so coastal waters are not subject to the exception. The
exception, apparently, applies only to constructions on navigable rivers,
when these constructions do not impede or obstruct the passage of the
river and when they do not cause inundation of agricultural areas. Coastal
waters are not within the contemplation of the exception because there is
no navigable river or stream in coastal waters and neither may there be an
inundation therein.
We, therefore, find that the court below erred in its decision that the
constructions of the petitioner, subject matter of the case at bar, fall
within the exception mentioned in Sec. 2 of the Act and its order in issuing
the prohibition is therefore, unwarranted.
The other error is the failure of the petitioner to avail of the administrative
remedy, which consists in appealing from the decision of the Secretary of
Public Works and Communications to the President of the Philippines. We
find this assignment of error also to be well taken. We have, however,
chosen to consider the merits of the issue involved for the more prompt
determination of the case and for a proper understanding of the provisions
of Republic Act 2056.
WHEREFORE, the decision and the injunction issued by the court below are
hereby set aside, and the petition against the Secretary of Public Works
and Communications, dismissed, with costs against the petitioner.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L40474 August 29, 1975
CEBU OXYGEN & ACETYLENE CO., INC., petitioner,
vs.
HON. PASCUAL A. BERCILLES Presiding Judge, Branch XV, 14th
Judicial District, and JOSE L. ESPELETA, Assistant Provincial Fiscal,
Province of Cebu, representing the Solicitor General's Office and
the Bureau of Lands, respondents.
Jose Antonio R Conde for petitioner.
Office of the Acting Solicitor General Hugo E. Gutierrez, Jr., Assistant
Solicitor General Octavio R. Ramirez and Trial Attorney David R. Hilario for
respondents. .
CONCEPCION, Jr., J.:
This is a petition for the review of the order of the Court of First Instance
of Cebu dismissing petitioner's application for registration of title over a
parcel of land situated in the City of Cebu.
The parcel of land sought to be registered was only a portion of M. Borces
Street, Mabolo, Cebu City. On September 23, 1968, the City Council of
Cebu, through Resolution No. 2193, approved on October 3, 1968,
declared the terminal portion of M. Borces Street, Mabolo, Cebu City, as an
abandoned road, the same not being included in the City Development
Plan.1 Subsequently, on December 19, 1968, the City Council of Cebu
passed Resolution No. 2755, authorizing the Acting City Mayor to sell the
land through a public bidding.2 Pursuant thereto, the lot was awarded to
the herein petitioner being the highest bidder and on March 3, 1969, the
City of Cebu, through the Acting City Mayor, executed a deed of absolute
sale to the herein petitioner for a total consideration of P10,800.00. 3 By
virtue of the aforesaid deed of absolute sale, the petitioner filed an
application with the Court of First instance of Cebu to have its title to the
land registered.4
On June 26, 1974, the Assistant Provincial Fiscal of Cebu filed a motion to
dismiss the application on the ground that the property sought to be
registered being a public road intended for public use is considered part of
the public domain and therefore outside the commerce of man.
Consequently, it cannot be subject to registration by any private
individual.5
After hearing the parties, on October 11, 1974 the trial court issued an
order dismissing the petitioner's application for registration of title.6 Hence,
the instant petition for review.
For the resolution of this case, the petitioner poses the following
questions:
(1) Does the City Charter of Cebu City (Republic Act No.
3857) under Section 31, paragraph 34, give the City of
Cebu the valid right to declare a road as abandoned? and
(2) Does the declaration of the road, as abandoned, make
it the patrimonial property of the City of Cebu which may
be the object of a common contract?
(1) The pertinent portions of the Revised Charter of Cebu City provides:
Section 31. Legislative Powers. Any provision of law and
executive order to the contrary notwithstanding, the City
Council shall have the following legislative powers:
 xxx xxx xxx
(34) ...; to close any city road, street or alley, boulevard,
avenue, park or square. Property thus withdrawn from
public servitude may be used or conveyed for any purpose
for which other real property belonging to the City may be
lawfully used or conveyed.
From the foregoing, it is undoubtedly clear that the City of Cebu is
empowered to close a city road or street. In the case of Favis vs. City of
Baguio,7 where the power of the city Council of Baguio City to close city
streets and to vacate or withdraw the same from public use was similarly
assailed, this court said:
5. So it is, that appellant may not challenge the city
council's act of withdrawing a strip of Lapu-Lapu Street at
its dead end from public use and converting the remainder
thereof into an alley. These are acts well within the ambit
of the power to close a city street. The city council, it
would seem to us, is the authority competent to determine
whether or not a certain property is still necessary for
public use.
Such power to vacate a street or alley is discretionary. And
the discretion will not ordinarily be controlled or interfered
with by the courts, absent a plain case of abuse or fraud or
collusion. Faithfulness to the public trust will be presumed.
So the fact that some private interests may be served
incidentally will not invalidate the vacation ordinance.
(2) Since that portion of the city street subject of petitioner's application
for registration of title was withdrawn from public use, it follows that such
withdrawn portion becomes patrimonial property which can be the object
of an ordinary contract.
Article 422 of the Civil Code expressly provides that "Property of public
dominion, when no longer intended for public use or for public service,
shall form part of the patrimonial property of the State."
Besides, the Revised Charter of the City of Cebu heretofore quoted, in very
clear and unequivocal terms, states that: "Property thus withdrawn from
public servitude may be used or conveyed for any purpose for which other
real property belonging to the City may be lawfully used or conveyed."
Accordingly, the withdrawal of the property in question from public use
and its subsequent sale to the petitioner is valid. Hence, the petitioner has
a registerable title over the lot in question.
WHEREFORE, the order dated October 11, 1974, rendered by the
respondent court in Land Reg. Case No. N-948, LRC Rec. No. N-44531 is
hereby set aside, and the respondent court is hereby ordered to proceed
with the hearing of the petitioner's application for registration of title.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 100709 November 14, 1997
REPUBLIC OF THE PHILIPPINES, represented by the DIRECTOR OF
LANDS, petitioner,
vs.
COURT OF APPEALS, JOSEFINA L. MORATO, SPOUSES NENITA CO
and ANTONIO QUILATAN AND THE REGISTER OF DEEDS OF
QUEZON PROVINCE, respondents.
PANGANIBAN, J.:
Will the lease and/or mortgage of a portion of a realty acquired through
free patent constitute sufficient ground for the nullification of such land
grant? Should such property revert to the State once it is invaded by the
sea and thus becomes foreshore land?
The Case
These are the two questions raised in the petition before us assailing the
Court of Appeals' 1 Decision in CA-G.R. CV No. 02667 promulgated on June
13, 1991 which answered the said questions in the negative. 2 Respondent
Court's dismissed 3 petitioner's appeal and affirmed in toto the decision of
the Regional Trial Court4 of Calauag, Quezon, dated December 28, 1983 in
Civil Case No. C-608. In turn, the Regional Trial Court's decision dismissed
petitioner's complaint for cancellation of the Torrens Certificate of Title of
Respondent Morato and for reversion of the parcel of land subject thereof
of the public domain.
The Facts
The petition of the solicitor general, representing the Republic of the
Philippines, recites the following facts: 5
Sometime in December, 1972, respondent Morato filed a
Free Patent Application No. III-3-8186-B on a parcel of
land with an area of 1,265 square meters situated at
Pinagtalleran, Calauag, Quezon. On January 16, 1974, the
patent was approved and the Register of Deeds of Quezon
at Lucena City issued on February 4, 1974 Original
Certificate of Title No. P-17789. Both the free paten and
the title specifically mandate that the land shall not
be alienated nor encumbered within five years from the
date of the issuance of the patent (Sections 118 and 124
of CA No. 141, as amended).
Subsequently, the District Land Officer in Lucena City,
acting upon reports that respondent Morato had
encumbered the land in violation of the condition of the
patent, conducted an investigation. Thereafter, it was
established that the subject land is a portion of the
Calauag Bay, five (5) to six (6) feet deep under water
during high tide and two (2) feet deep at low tide, and not
suitable to vegetation. Moreover, on October 24, 1974, a
portion of the land was mortgaged by respondent Morato
to respondents Nenita Co and Antonio Quilatan for
P10,000.00 (pp. 2, 25, Folder of Exhibits). The spouses
Quilatan constructed a house on the land. Another portion
of the land was leased to Perfecto Advincula on February 2,
1976 at P100.00 a month, where a warehouse was
constructed.
On November 5, 1978, petitioner filed an amended
complaint against respondents Morato, spouses Nenita Co
and Antonio Quilatan, and the Register of Deeds of Quezon
for the cancellation of title and reversion of a parcel of land
to the public domain, subject of a free patent in favor of
respondent Morato, on the grounds that the land is a
foreshore land and was mortgaged and leased within the
five-year prohibitory period (p. 46, Records).
After trial, the lower court, on December 28, 1983,
rendered a decision dismissing petitioner's complaint. In
finding for private respondents, the lower court ruled that
there was no violation of the 5-year period ban against
alienating or encumbering the land, because the land was
merely leased and not alienated. It also found that the
mortgage to Nenita Co and Antonio Quilatan covered only
the improvement and not the land itself.
On appeal, the Court of Appeals affirmed the decision of the trial court.
Thereafter, the Republic of the Philippines filed the present petition. 6
The Issues
Petitioner alleges that the following errors were committed by Respondent
Court: 7
I
Respondent court erred in holding that the patent granted
and certificate of title issued to Respondent Morato cannot
be cancelled and annulled since the certificate of title
becomes indefeasible after one year from the issuance of
the title.
II
Respondent Court erred in holding that the questioned land
is part of a disposable public land and not a foreshore land.
The Court's Ruling
The petition is meritorious.
First Issue: Indefeasibility of a Free Patent Title
In resolving the first issue against petitioner, Respondent Court held: 8
. . . As ruled in Heirs of Gregorio Tengco vs. Heirs of Jose
Alivalas, 168 SCRA 198. ". . . The rule is well-settled that
an original certificate of title issued on the strength of a
homestead patent partakes of the nature of a certificate of
title issued in a judicial proceeding, as long as the land
disposed of is really part of the disposable land of the
public domain, and becomes indefeasible and
incontrovertible upon the expiration of one year from the
date of promulgation of the order of the Director of Lands
for the issuance of the patent. (Republic v. Heirs of Carle,
105 Phil. 1227 (1959); Ingaran v. Ramelo, 107 Phil. 498
(1960); Lopez v. Padilla, (G.R. No. L-27559, May 18,
1972, 45 SCRA 44). A homestead patent, one registered
under the Land Registration Act, becomes as indefeasible
as a Torrens Title. (Pamintuan v. San Agustin, 43 Phil. 558
(1982); El Hogar Filipino v. Olviga, 60 Phil. 17 (1934);
Duran v. Oliva, 113 Phil. 144 (1961); Pajomayo v.
 Manipon, G.R. No. L-33676, June 30, 1971, 39 SCRA 676).
(p. 203).
Again, in Lopez vs. Court of Appeals, 169 SCRA 271,
citing Iglesia ni Cristo v. Hon. Judge, CFI of Nueva Ecija,
Branch I, (123 SCRA 516 (1983) and Pajomayo, et
al. v. Manipon, et al. (39 SCRA 676 (1971) held that once
a homestead patent granted in accordance with the Public
Land Act is registered pursuant to Section 122 of Act 496,
the certificate of title issued in virtue of said patent has the
force and effect of a Torrens Title issued under the Land
Registration Act.
Indefeasibility of the title, however, may not bar the State,
thru the Solicitor General, from filing an action for
reversion, as ruled in Heirs of Gregorio Tengco v. Heirs of
Jose Aliwalas, (supra), as follows:
But, as correctly pointed out by the respondent Court of
Appeals, Dr. Aliwalas' title to the property having become
incontrovertible, such may no longer be collaterally
attacked. If indeed there had been any fraud or
misrepresentation in obtaining the title, an action for
reversion instituted by the Solicitor General would be the
proper remedy (Sec. 101, C.A. No. 141; Director of Lands
v. Jugado, G.R. No. L-14702, May 21, 1961, 2 SCRA 32;
Lopez v. Padilla, supra). (p. 204).
Petitioner contends that the grant of Free Patent (IV-3) 275 and the
subsequent issuance of Original Certificate of Title No. P-17789 to
Respondent Josefina L. Morato were subject to the conditions provided for
in Commonwealth Act (CA) No. 141. It alleges that on October 24, 1974,
or nine (9) months and eight (8) days after the grant of the patent,
mortgaged a portion of the land" to Respondent Nenita Co, who thereafter
constructed a house thereon. Likewise, on February 2, 1976 and "within
the five-year prohibitory period," Respondent Morato "leased a portion of
the land to Perfecto Advincula at a monthly rent of P100.00 who, shortly
thereafter, constructed a house of concrete materials on the subject
land."9 Further, petitioner argues that the defense of indefeasibility of title
is "inaccurate." The original certificate of title issued to Respondent Morato
"contains the seeds of its own cancellation": such certificate specifically
states on its face that "it is subject to the provisions of Sections 118, 119,
121, 122, 124 of CA No. 141, as amended." 10
Respondent Morato counters by stating that although a "portion of the land
was previously leased," it resulted "from the fact that Perfecto Advincula
built a warehouse in the subject land without [her] prior consent." The
mortgage executed over the improvement "cannot be considered a
violation of the said grant since it can never affect the ownership." 11 She
states further:
. . . . the appeal of the petitioner was dismissed not
because of the principle of indefeasibility of title but mainly
due to failure of the latter to support and prove the alleged
violations of respondent Morato. The records of this case
will readily show that although petitioner was able to
establish that Morato committed some acts during the
prohibitory period of 5 years, a perusal thereof will also
show that what petitioner was able to prove never
constituted a violation of the grant. 12
Respondent-Spouses Quilatan, on the other hand, state that the mortgage
contract they entered into with Respondent Morato "can never be
considered as [an] 'alienation' inasmuch as the ownership over the
property remains with the owner." 13 Besides, it is the director of lands and
not the Republic of the Philippines who is the real party in interest in this
case, contrary to the provision of the Public Land Act which states that
actions for reversion should be instituted by the solicitor general in the
name of Republic of the Philippines. 14
We find for petitioner.
Quoted below are relevant sections of Commonwealth Act No. 141,
otherwise known as the Public Land Act:
Sec. 118. Except in favor of the Government or any of its
branches, units or institutions, or legally constituted
banking corporations, lands acquired under free patent or
homestead provisions shall not be subject to encumbrance
or alienation from the date of the approval of the
application and for a term of five years from and after the
date of issuance of the patent or grant nor shall they
become liable to the satisfaction of any debt contracted
prior to the expiration of said period; but the
improvements or crops on the land may be mortgaged or
pledged to qualified persons, associations, or corporations.
No alienation, transfer, or conveyance of any homestead
after five years and before twenty-five years after issuance
of title shall be valid without the approval of the Secretary
of Agriculture and Natural Resources, which approval shall
not be denied except on constitutional and legal grounds.
(As amended by Com. Act No. 456, approved June 8,
1939.)
 xxx xxx xxx
Sec. 121. Except with the consent of the grantee and the
approval of the Secretary of Agriculture and Natural
Resources, and solely for educational, religious, or
charitable purposes or for a right of way, no corporation,
association, or partnership may acquire or have any right,
title, interest, or property right whatsoever to any land
granted under the free patent, homestead, or individual
sale provisions of this Act or to any permanent
improvement on such land. (As amended by Com. Act No.
615, approved May 5, 1941)
Sec. 122. No land originally acquired in any manner under
the provisions of this Act, nor any permanent improvement
on such land, shall be encumbered, alienation or
transferred, except to persons, corporations, association,
or partnerships who may acquire lands of the public
domain under this Act or to corporations organized in the
Philippines authorized therefore by their charters.
Except in cases of hereditary successions, no land or any
portion thereof originally acquired under the free patent,
homestead, or individual sale provisions of this Act, or any
permanent improvement on such land, shall be transferred
or assigned to any individual, nor shall such land or any
permanent improvement thereon be leased to such
individual, when the area of said land, added to that of this
own, shall exceed one hundred and forty-four
hectares. Any transfer, assignment, or lease made in
violation hereto shall be null and void. (As amended by
Com Act No. 615, Id.).
xxx xxx xxx
Sec. 124. Any acquisition, conveyance, alienation, transfer,
or other contract made or executed in violation of any of
the provisions of sections one hundred and eighteen, one
hundred and twenty, one hundred and twenty-one, one
hundred and twenty-two, and one hundred and twenty-
three of this Act shall be unlawful and null and void from
its execution and shall produce the effect of annulling and
cancelling the grant, title, patent, or permit originally
issued, recognized or confirmed, actually or presumatively,
and cause the reversion of the property and its
improvements to the State. (Emphasis supplied)
The foregoing legal provisions clearly proscribe the encumbrance of a
parcel of land acquired under a free patent or homestead within five years
from the grant of such patent. Furthermore, such encumbrance results in
the cancellation of the grant and the reversion of the land to the public
domain. Encumbrance has been defined as "[a]nything that impairs the
use or transfer of property; anything which constitutes a burden on the
title; a burden or charge upon property; a claim or lien upon property." It
may be a "legal claim on an estate for the discharge of which the estate is
liable; and embarrassment of the estate or property so that it cannot be
disposed of without being subject to it; an estate, interest, or right in
lands, diminishing their value to the general owner; a liability resting upon
an estate." 15 Do the contracts of lease and mortgage executed within five
(5) years from the issuance of the patent constitute an "encumbrance" and
violate the terms and conditions of such patent? Respondent Court
answered in the negative: 16
From the evidence adduced by both parties, it has been
proved that the area of the portion of the land, subject
matter of the lease contract (Exh. "B") executed by and
between Perfecto Advincula and Josefina L. Morato is only
10 x 12 square meters, where the total area of the land
granted to Morato is 1,265 square meters. It is clear from
this that the portion of the land leased by Advincula does
not significantly affect Morato's ownership and possession.
Above all, the circumstances under which the lease was
executed do not reflect a voluntary and blatant intent to
violate the conditions provided for in the patent issued in
her favor. On the contrary, Morato was compelled to enter
into that contract of lease
out of sympathy and the goodness of her heart to
accommodate a fellow man. . . .
It is indisputable, however, that Respondent Morato cannot fully use or
enjoy the land during the duration of the lease contract. This restriction on
the enjoyment of her property sufficiently meets the definition of an
encumbrance under Section 118 of the Public Land Act, because such
contract "impairs the use of the property" by the grantee. In a contract of
lease which is consensual, bilateral, onerous and commutative, the owner
temporarily grants the use of his or her property to another who
undertakes to pay rent therefor. 17 During the term of the lease, the
grantee of the patent cannot enjoy the beneficial use of the land leased. As
already observed, the Public Land Act does not permit a grantee of a free
patent from encumbering any portion of such land. Such encumbrance is a
ground for the nullification of the award.
Morato's resort to equity, i.e. that the lease was executed allegedly out of
the goodness of her heart without any intention of violating the law,
cannot help her. Equity, which has been aptly described as "justice outside
legality," is applied only in the absence of, and never against, statutory
law or judicial rules of procedure. Positive rules prevail over all abstract
arguments based on equity contra legem. 18
Respondents failed to justify their position that the mortgage should not be
considered an encumbrance. Indeed, we do not find any support for such
contention. The questioned mortgage falls squarely within the term
"encumbrance" proscribed by Section 118 of the Public Land Act. 19 Verily,
a mortgage constitutes a legal limitation on the estate, and the foreclosure
of such mortgage would necessarily result in the auction of the property. 20
Even if only part of the property has been sold or alienated within the
prohibited period of five years from the issuance of the patent, such
alienation is a sufficient cause for the reversion of the whole estate to the
State. As a condition for the grant of a free patent to an applicant, the law
requires that the land should not be encumbered, sold or alienated within
five years from the issuance of
the patent. The sale or the alienation of part of the homestead violates
that condition. 21
The prohibition against the encumbrance — lease and mortgage included
— of a homestead which, by analogy applies to a free patent, is mandated
by the rationale for the grant, viz.: 22
It is well-known that the homestead laws were designed to
distribute disposable agricultural lots of the State to land-
destitute citizens for their home and cultivation. Pursuant
to such benevolent intention the State prohibits the sale or
incumbrance of the homestead (Section 116) within five
years after the grant of the patent. After that five-year
period the law impliedly permits alienation of the
homestead; but in line with the primordial purpose to favor
the homesteader and his family the statute provides that
such alienation or conveyance (Section 117) shall be
subject to the right of repurchase by the homesteader, his
widow or heirs within five years. This section 117 is
undoubtedly a complement of section 116. It aims to
preserve and keep in the family of the homesteader that
portion of public land which the State had gratuitously
given to him. It would, therefore, be in keeping with this
fundamental idea to hold, as we hold, that the right to
repurchase exists not only when the original homesteader
makes the conveyance, but also when it is made by his
widow or heirs. This construction is clearly deducible from
the terms of the statute.
By express provision of Section 118 of Commonwealth Act 141 and in
conformity with the policy of the law, any transfer or alienation of a free
patent or homestead within five years from the issuance of the patent is
proscribed. Such transfer nullifies said alienation and constitutes a cause
for the reversion of the property to the State.
The prohibition against any alienation or encumbrance of the land grant is
a proviso attached to the approval of every application. 23 Prior to the
fulfillment of the requirements of law, Respondent Morato had only an
inchoate right to the property; such property remained part of the public
domain and, therefore, not susceptible to alienation or encumbrance.
Conversely, when a "homesteader has complied with all the terms and
conditions which entitled him to a patent for [a] particular tract of public
land, he acquires a vested interest therein and has to be regarded an
equitable owner thereof." 24 However, for Respondent Morato's title of
ownership over the patented land to be perfected, she should have
complied with the requirements of the law, one of which was to keep the
property for herself and her family within the prescribed period of five (5)
years. Prior to the fulfillment of all requirements of the law, Respondent
Morato's title over the property was incomplete. Accordingly, if the
requirements are not complied with, the State as the grantor could petition
for the annulment of the patent and the cancellation of the title.
Respondent Morato cannot use the doctrine of the indefeasibility of her
Torrens title to bar the state from questioning its transfer or encumbrance.
The certificate of title issued to her clearly stipulated that its award was
"subject to the conditions provided for in Sections 118, 119, 121, 122 and
124 of Commonwealth Act (CA) No. 141." Because she violated Section
118, the reversion of the property to the public domain necessarily follows,
pursuant to Section 124.
Second Issue: Foreshore Land
Revert to the Public Domain
There is yet another reason for granting this petition.
Although Respondent Court found that the subject land was foreshore
land, it nevertheless sustained the award thereof to Respondent Morato: 25
First of all, the issue here is whether the land in question,
is really part of the foreshore lands. The Supreme Court
defines foreshore land in the case of Republic vs. Alagad,
169 SCRA 455, 464, as follows:
Otherwise, where the rise in water level is
due to, the "extraordinary" action of
nature, rainful, for instance, the portions
 inundated thereby are not considered part
of the bed or basin of the body of water in
question. It cannot therefore be said to be
foreshore land but land outside of the
public dominion, and land capable of
registration as private property.
A foreshore land, on the other hand has
been defined as follows:
. . . that part of (the land)
which is between high
and low water and left dry
by the flux and reflux of
the tides . . . . (Republic
vs. C.A., Nos. L-43105, L-
43190, August 31, 1984,
131 SCRA 532;
Government vs. Colegio de
San Jose, 53 Phil 423)
The strip of land that lies
between the high and low
water marks and that is
alternatively wet and dry
according to the flow of the
tide. (Rep. vs. CA, supra,
539).
The factual findings of the lower court regarding the nature of the parcel of
land in question reads:
Evidence disclose that the marginal area of
the land radically changed sometime in
1937 up to 1955 due to a strong
earthquake followed by frequent storms
eventually eroding the land. From 1955 to
1968, however, gradual reclamation was
undertaken by the lumber company owned
by the Moratos. Having thus restored the
land thru mostly human hands employed
by the lumber company, the area
continued to be utilized by the owner of
the sawmill up to the time of his death in
1965. On or about March 17, 1973, there
again was a strong earthquake
unfortunately causing destruction to
hundreds of residential houses fronting the
Calauag Bay including the Santiago
Building, a cinema house constructed of
concrete materials. The catastrophe totally
caused the sinking of a concrete bridge at
Sumulong river also in the municipality of
Calauag, Quezon.
On November 13, 1977 a typhoon code
named "Unding" wrought havoc as it
lashed the main land of Calauag, Quezon
causing again great erosion this time than
that which the area suffered in 1937. The
Court noted with the significance of the
newspaper clipping entitled "Baryo ng
Mangingisda Kinain ng Dagat" (Exh. "11").
xxx xxx xxx
Evidently this was the condition of the land
when on or about December 5, 1972
defendant Josefina L. Morato filed with the
Bureau of Lands her free patent
application. The defendant Josefina Morato
having taken possession of the land after
the demise of Don Tomas Morato, she
introduced improvement and continued
developing the area, planted it to coconut
tree. Having applied for a free patent,
defendant had the land area surveyed and
an approved plan (Exh. "9") based on the
cadastral survey as early as 1927 (Exh.
"10") was secured. The area was declared
for taxation purposes in the name of
defendant Josefina Morato denominated as
Tax Declaration No. 4115 (Exh. "8") and
the corresponding realty taxes religiously
paid as shown by Exh. "8-A"). (pp. 12-14,
DECISION).
Being supported by substantial evidence and for failure of
the appellant to show cause which would warrant
disturbance, the aforecited findings of the lower court,
must be respected.
Petitioner correctly contends, however, that Private Respondent Morato
cannot own foreshore land:
 Through the encroachment or erosion by the ebb and flow
of the tide, a portion of the subject land was invaded by
the waves and sea advances. During high tide, at least half
of the land (632.5 square meters) is 6 feet deep under
water and three (3) feet deep during low tide. The Calauag
Bay shore has extended up to a portion of the questioned
land.
While at the time of the grant of free patent to respondent
Morato, the land was not reached by the water, however,
due to gradual sinking of the land caused by natural
calamities, the sea advances had permanently invaded a
portion of subject land. As disclosed at the trial, through
the testimony of the court-appointed commissioner, Engr.
Abraham B. Pili, the land was under water during high tide
in the month of August 1978. The water margin covers half
of the property, but during low tide, the water is about a
kilometer (TSN, July 19, 1979, p. 12). Also, in 1974, after
the grant of the patent, the land was covered with
vegetation, but it disappeared in 1978 when the land was
reached by the tides (Exh. "E-1", "E-14"). In fact, in its
decision dated December 28, 1983, the lower court
observed that the erosion of the land was caused by
natural calamities that struck the place in 1977 (Cf.
Decision, pp. 17-18). 26
Respondent-Spouses Quilatan argue, however, that it is "unfair and unjust
if Josefina Morato will be deprived of the whole property just because a
portion thereof was immersed in water for reasons not her own doing." 27
As a general rule, findings of facts of the Court of Appeals are binding and
conclusive upon this Court, unless such factual findings are palpably
unsupported by the evidence on record or unless the judgment itself is
based on a misapprehension of facts. 28 The application for a free patent
was made in 1972. From the undisputed factual findings of the Court of
Appeals, however, the land has since become foreshore. Accordingly, it
can no longer be subject of a free patent under the Public Land
Act. Government of the Philippine Islands vs. Cabañgis 29 explained the
rationale for this proscription:
Article 339, subsection 1, of the Civil Code, reads:
Art. 339. Property of public ownership is —
1. That devoted to public use, such as roads, canals,
rivers, torrents, ports and bridges constructed by the
In comparison, Article 420 of the Civil Code provides:
State, riverbanks, shores, roadsteads, and that of a similar
character.
xxx xxx xxx
Article 1, case 3, of the law of Waters of August 3, 1866,
provides as follows:
Art. 1. The following are part of the national domain open
to public use.
xxx xxx xxx
3. The Shores. By the shore is understood that space
covered and uncovered by the movement of the tide. Its
interior or terrestrial limit is the line reached by the highest
equinoctal tides. Where the tides are not appreciable, the
shore begins on the land side at the line reached by the
sea during ordinary storms or tempests.
In the case of Aragon vs. Insular Government (19 Phil.
223), with reference to article 339 of the Civil Code just
quoted, this Court said:
We should not be understood, by this decision, to hold that
in a case of gradual encroachment or erosion by the ebb
and flow of the tide, private property may not become
"property of public ownership." as defined in article 339 of
the code, where it appear that the owner has to all intents
and purposes abandoned it and permitted it to be totally
destroyed, so as to become a part of the "playa" (shore of
the sea), "rada" (roadstead), or the like. . . .
In the Enciclopedia Juridica Española, volume XII, page
558, we read the following:
With relative frequency the opposite phenomenon occurs;
that is, the sea advances and private properties are
permanently invaded by the waves, and in this case they
become part of the shore or breach. The then pass to the
public domain, but the owner thus dispossessed does not
retain any right to the natural products resulting from their
new nature; it is a de facto case of eminent domain, and
not subject to indemnity.
 Art. 420. The following things are property of public
dominion:
(1) Those intended for public use, such as roads, canals,
rivers, torrents, ports and bridges constructed by the
State, banks, shores, roadsteads, and others of similar
character;
(2) Those which belong to the State, without being for
public use, and are intended for some public service or for
the development of the national wealth.
When the sea moved towards the estate and the tide invaded it, the
invaded property became foreshore land and passed to the realm of the
public domain. In fact, the Court in Government vs. Cabangis 30 annulled
the registration of land subject of cadastral proceedings when the parcel
subsequently became foreshore land. 31 In another case, the Court voided
the registration decree of a trial court and held that said court had no
jurisdiction to award foreshore land to any private person or entity. 32 The
subject land in this case, being foreshore land, should therefore be
returned to the public domain.
WHEREFORE, the petition is GRANTED. This Court hereby REVERSES and
SETS ASIDE the assailed Decision of Respondent Court and ORDERS the
CANCELLATION of Free Patent No. (IV-3) 275 issued to Respondent Morato
and the subsequent Original Certificate of Title No. P-17789. The subject
land therefore REVERTS to the State. No costs.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 97764 August 10, 1992
LEVY D. MACASIANO, Brigadier General/PNP Superintendent,
Metropolitan Traffic Command, petitioner,
vs.
HONORABLE ROBERTO C. DIOKNO, Presiding Judge, Branch 62,
Regional Trial Court of Makati, Metro Manila, MUNICIPALITY OF
PARAÑAQUE, METRO MANILA, PALANYAG KILUSANG BAYAN FOR
SERVICE, respondents.
Ceferino, Padua Law Office for Palanyag Kilusang Bayan for service.
Manuel de Guia for Municipality of Parañaque.
MEDIALDEA, J.:
This is a petition for certiorari under Rule 65 of the Rules of Court seeking
the annulment of the decision of the Regional Trial Court of Makati, Branch
62, which granted the writ of preliminary injunction applied for by
respondents Municipality of Parañaque and Palanyag Kilusang Bayan for
Service (Palanyag for brevity) against petitioner herein.
The antecedent facts are as follows:
On June 13, 1990, the respondent municipality passed Ordinance No. 86,
Series of 1990 which authorized the closure of J. Gabriel, G.G. Cruz,
Bayanihan, Lt. Garcia Extension and Opena Streets located at Baclaran,
Parañaque, Metro Manila and the establishment of a flea market thereon.
The said ordinance was approved by the municipal council pursuant to
MMC Ordinance No. 2, Series of 1979, authorizing and regulating the use
of certain city and/or municipal streets, roads and open spaces within
Metropolitan Manila as sites for flea market and/or vending areas, under
certain terms and conditions.
On July 20, 1990, the Metropolitan Manila Authority approved Ordinance
No. 86, s. 1990 of the municipal council of respondent municipality subject
to the following conditions:
1. That the aforenamed streets are not used for vehicular
traffic, and that the majority of the residents do not
oppose the establishment of the flea market/vending areas
thereon;
2. That the 2-meter middle road to be used as flea
market/vending area shall be marked distinctly, and that
the 2 meters on both sides of the road shall be used by
pedestrians;
3. That the time during which the vending area is to be
used shall be clearly designated;
 4. That the use of the vending areas shall be temporary
and shall be closed once the reclaimed areas are
developed and donated by the Public Estate Authority.
On June 20, 1990, the municipal council of Parañaque issued a resolution
authorizing Parañaque Mayor Walfrido N. Ferrer to enter into contract with
any service cooperative for the establishment, operation, maintenance and
management of flea markets and/or vending areas.
On August 8, 1990, respondent municipality and respondent Palanyag, a
service cooperative, entered into an agreement whereby the latter shall
operate, maintain and manage the flea market in the aforementioned
streets with the obligation to remit dues to the treasury of the municipal
government of Parañaque. Consequently, market stalls were put up by
respondent Palanyag on the said streets.
On September 13, 1990, petitioner Brig. Gen. Macasiano, PNP
Superintendent of the Metropolitan Traffic Command, ordered the
destruction and confiscation of stalls along G.G. Cruz and J. Gabriel St. in
Baclaran. These stalls were later returned to respondent Palanyag.
On October 16, 1990, petitioner Brig. General Macasiano wrote a letter to
respondent Palanyag giving the latter ten (10) days to discontinue the flea
market; otherwise, the market stalls shall be dismantled.
Hence, on October 23, 1990, respondents municipality and Palanyag filed
with the trial court a joint petition for prohibition and mandamus with
damages and prayer for preliminary injunction, to which the petitioner filed
his memorandum/opposition to the issuance of the writ of preliminary
injunction.
On October 24, 1990, the trial court issued a temporary restraining order
to enjoin petitioner from enforcing his letter-order of October 16, 1990
pending the hearing on the motion for writ of preliminary injunction.
On December 17, 1990, the trial court issued an order upholding the
validity of Ordinance No. 86 s. 1990 of the Municipality' of Parañaque and
enjoining petitioner Brig. Gen. Macasiano from enforcing his letter-order
against respondent Palanyag.
Hence, this petition was filed by the petitioner thru the Office of the
Solicitor General alleging grave abuse of discretion tantamount to lack or
excess of jurisdiction on the part of the trial judge in issuing the assailed
order.
The sole issue to be resolved in this case is whether or not an ordinance or
resolution issued by the municipal council of Parañaque authorizing the
lease and use of public streets or thoroughfares as sites for flea markets is
valid.
The Solicitor General, in behalf of petitioner, contends that municipal roads
are used for public service and are therefore public properties; that as
such, they cannot be subject to private appropriation or private contract
by any person, even by the respondent Municipality of Parañaque.
Petitioner submits that a property already dedicated to public use cannot
be used for another public purpose and that absent a clear showing that
the Municipality of Parañaque has been granted by the legislature specific
authority to convert a property already in public use to another public use,
respondent municipality is, therefore, bereft of any authority to close
municipal roads for the establishment of a flea market. Petitioner also
submits that assuming that the respondent municipality is authorized to
close streets, it failed to comply with the conditions set forth by the
Metropolitan Manila Authority for the approval of the ordinance providing
for the establishment of flea markets on public streets. Lastly, petitioner
contends that by allowing the municipal streets to be used by market
vendors the municipal council of respondent municipality violated its duty
under the Local Government Code to promote the general welfare of the
residents of the municipality.
In upholding the legality of the disputed ordinance, the trial court ruled:
. . . that Chanter II Section 10 of the Local Government
Code is a statutory grant of power given to local
government units, the Municipality of Parañaque as such,
is empowered under that law to close its roads, streets or
alley subject to limitations stated therein (i.e., that it is in
accordance with existing laws and the provisions of this
code).
xxx xxx xxx
The actuation of the respondent Brig. Gen. Levi Macasiano,
though apparently within its power is in fact an
encroachment of power legally vested to the municipality,
precisely because when the municipality enacted the
ordinance in question — the authority of the respondent as
Police Superintendent ceases to be operative on the
ground that the streets covered by the ordinance ceases to
be a public thoroughfare. (pp. 33-34, Rollo)
We find the petition meritorious. In resolving the question of whether the
disputed municipal ordinance authorizing the flea market on the public
streets is valid, it is necessary to examine the laws in force during the time
the said ordinance was enacted, namely, Batas Pambansa Blg. 337,
otherwise known as Local Government Code, in connection with
established principles embodied in the Civil Code an property and settled
jurisprudence on the matter.
The property of provinces, cities and municipalities is divided into property
for public use and patrimonial property (Art. 423, Civil Code). As to what
consists of property for public use, Article 424 of Civil Code states:
Art. 424. Property for public use, in the provinces, cities
and municipalities, consists of the provincial roads, city
streets, the squares, fountains, public waters,
promenades, and public works for public service paid for
by said provinces, cities or municipalities.
All other property possessed by any of them is patrimonial
and shall be governed by this Code, without prejudice to
the provisions of special laws.
Based on the foregoing, J. Gabriel G.G. Cruz, Bayanihan, Lt. Garcia
Extension and Opena streets are local roads used for public service and
are therefore considered public properties of respondent municipality.
Properties of the local government which are devoted to public service are
deemed public and are under the absolute control of Congress (Province of
Zamboanga del Norte v. City of Zamboanga, L-24440, March 28, 1968, 22
SCRA 1334). Hence, local governments have no authority whatsoever to
control or regulate the use of public properties unless specific authority is
vested upon them by Congress. One such example of this authority given
by Congress to the local governments is the power to close roads as
provided in Section 10, Chapter II of the Local Government Code, which
states:
Sec. 10. Closure of roads. — A local government unit may
likewise, through its head acting pursuant to a resolution
of its sangguniang and in accordance with existing law and
the provisions of this Code, close any barangay, municipal,
city or provincial road, street, alley, park or square. No
such way or place or any part of thereof shall be close
without indemnifying any person prejudiced thereby. A
property thus withdrawn from public use may be used or
conveyed for any purpose for which other real property
belonging to the local unit concerned might be lawfully
used or conveyed. (Emphasis ours).
However, the aforestated legal provision which gives authority to local
government units to close roads and other similar public places should be
read and interpreted in accordance with basic principles already
established by law. These basic principles have the effect of limiting such
authority of the province, city or municipality to close a public street or
thoroughfare. Article 424 of the Civil Code lays down the basic principle
that properties of public dominion devoted to public use and made
available to the public in general are outside the commerce of man and
cannot be disposed of or leased by the local government unit to private
persons. Aside from the requirement of due process which should be
complied with before closing a road, street or park, the closure should be
for the sole purpose of withdrawing the road or other public property from
public use when circumstances show that such property is no longer
intended or necessary for public use or public service. When it is already
withdrawn from public use, the property then becomes patrimonial
property of the local government unit concerned (Article 422, Civil Code;
Cebu Oxygen, etc. et al. v. Bercilles, et al., G.R. No. L-40474, August 29,
1975, 66 SCRA 481). It is only then that the respondent municipality can
"use or convey them for any purpose for which other real property
belonging to the local unit concerned might be lawfully used or conveyed"
in accordance with the last sentence of Section 10, Chapter II of Blg. 337,
known as Local Government Code. In one case, the City Council of Cebu,
through a resolution, declared the terminal road of M. Borces Street,
Mabolo, Cebu City as an abandoned road, the same not being included in
the City Development Plan. Thereafter, the City Council passes another
resolution authorizing the sale of the said abandoned road through public
bidding. We held therein that the City of Cebu is empowered to close a city
street and to vacate or withdraw the same from public use. Such
withdrawn portion becomes patrimonial property which can be the object
of an ordinary contract (Cebu Oxygen and Acetylene Co., Inc. v. Bercilles,
et al., G.R. No.
L-40474, August 29, 1975, 66 SCRA 481). However, those roads and
streets which are available to the public in general and ordinarily used for
vehicular traffic are still considered public property devoted to public use.
In such case, the local government has no power to use it for another
purpose or to dispose of or lease it to private persons. This limitation on
the authority of the local government over public properties has been
discussed and settled by this Court en banc in "Francisco V. Dacanay,
petitioner v. Mayor Macaria Asistio, Jr., et al., respondents, G.R. No.
93654, May 6, 1992." This Court ruled:
There is no doubt that the disputed areas from which the
private respondents' market stalls are sought to be evicted
are public streets, as found by the trial court in Civil Case
No. C-12921. A public street is property for public use
hence outside the commerce of man (Arts. 420, 424, Civil
Code). Being outside the commerce of man, it may not be
the subject of lease or others contract (Villanueva, et al. v.
Castañeda and Macalino, 15 SCRA 142 citing the
Municipality of Cavite v. Rojas, 30 SCRA 602; Espiritu v.
 Municipal Council of Pozorrubio, 102 Phil. 869; And Muyot
v. De la Fuente, 48 O.G. 4860).
As the stallholders pay fees to the City Government for the
right to occupy portions of the public street, the City
Government, contrary to law, has been leasing portions of
the streets to them. Such leases or licenses are null and
void for being contrary to law. The right of the public to
use the city streets may not be bargained away through
contract. The interests of a few should not prevail over the
good of the greater number in the community whose
health, peace, safety, good order and general welfare, the
respondent city officials are under legal obligation to
protect.
The Executive Order issued by acting Mayor Robles
authorizing the use of Heroes del '96 Street as a vending
area for stallholders who were granted licenses by the city
government contravenes the general law that reserves city
streets and roads for public use. Mayor Robles' Executive
Order may not infringe upon the vested right of the public
to use city streets for the purpose they were intended to
serve: i.e., as arteries of travel for vehicles and
pedestrians.
Even assuming, in gratia argumenti, that respondent municipality has the
authority to pass the disputed ordinance, the same cannot be validly
implemented because it cannot be considered approved by the
Metropolitan Manila Authority due to non-compliance by respondent
municipality of the conditions imposed by the former for the approval of
the ordinance, to wit:
1. That the aforenamed streets are not used for vehicular
traffic, and that the majority of the residents do(es) not
oppose the establishment of the flea market/vending areas
thereon;
2. That the 2-meter middle road to be used as flea
market/vending area shall be marked distinctly, and that
the 2 meters on both sides of the road shall be used by
pedestrians;
3. That the time during which the vending area is to be
used shall be clearly designated;
4. That the use of the vending areas shall be temporary
and shall be closed once the reclaimed areas are
developed and donated by the Public Estate Authority. (p.
38, Rollo)
Respondent municipality has not shown any iota of proof that it has
complied with the foregoing conditions precedent to the approval of the
ordinance. The allegations of respondent municipality that the closed
streets were not used for vehicular traffic and that the majority of the
residents do not oppose the establishment of a flea market on said streets
are unsupported by any evidence that will show that this first condition has
been met. Likewise, the designation by respondents of a time schedule
during which the flea market shall operate is absent.
Further, it is of public notice that the streets along Baclaran area are
congested with people, houses and traffic brought about by the
proliferation of vendors occupying the streets. To license and allow the
establishment of a flea market along J. Gabriel, G.G. Cruz, Bayanihan, Lt.
Garcia Extension and Opena streets in Baclaran would not help in solving
the problem of congestion. We take note of the other observations of the
Solicitor General when he said:
. . . There have been many instances of emergencies and
fires where ambulances and fire engines, instead of using
the roads for a more direct access to the fire area, have to
maneuver and look for other streets which are not
occupied by stalls and vendors thereby losing valuable
time which could, otherwise, have been spent in saving
properties and lives.
Along G.G. Cruz Street is a hospital, the St. Rita Hospital.
However, its ambulances and the people rushing their
patients to the hospital cannot pass through G.G. Cruz
because of the stalls and the vendors. One can only
imagine the tragedy of losing a life just because of a few
seconds delay brought about by the inaccessibility of the
streets leading to the hospital.
The children, too, suffer. In view of the occupancy of the
roads by stalls and vendors, normal transportation flow is
disrupted and school children have to get off at a distance
still far from their schools and walk, rain or shine.
Indeed one can only imagine the garbage and litter left by
vendors on the streets at the end of the day. Needless to
say, these cause further pollution, sickness and
deterioration of health of the residents therein. (pp. 21-
22, Rollo)
Respondents do not refute the truth of the foregoing findings and
observations of petitioners. Instead, respondents want this Court to focus
its attention solely on the argument that the use of public spaces for the
establishment of a flea market is well within the powers granted by law to
a local government which should not be interfered with by the courts.

Verily, the powers of a local government unit are not absolute. They are
subject to limitations laid down by toe Constitution and the laws such as
our Civil Code. Moreover, the exercise of such powers should be
subservient to paramount considerations of health and well-being of the
members of the community. Every local government unit has the sworn
obligation to enact measures that will enhance the public health, safety
and convenience, maintain peace and order, and promote the general
prosperity of the inhabitants of the local units. Based on this objective, the
local government should refrain from acting towards that which might
prejudice or adversely affect the general welfare.

As what we have said in the Dacanay case, the general public have a legal
right to demand the demolition of the illegally constructed stalls in public
roads and streets and the officials of respondent municipality have the
corresponding duty arising from public office to clear the city streets and
restore them to their specific public purpose.

The instant case as well as the Dacanay case, involves an ordinance which
is void and illegal for lack of basis and authority in laws applicable during
its time. However, at this point, We find it worthy to note that Batas
Pambansa Blg. 337, known as Local Government Lode, has already been
repealed by Republic Act No. 7160 known as Local Government Code of
1991 which took effect on January 1, 1992. Section 5(d) of the new Code
provides that rights and obligations existing on the date of effectivity of
the new Code and arising out of contracts or any other source of prestation
involving a local government unit shall be governed by the original terms
and conditions of the said contracts or the law in force at the time such
rights were vested.

ACCORDINGLY, the petition is GRANTED and the decision of the

respondent Regional Trial Court dated December 17, 1990 which granted
the writ of preliminary injunction enjoining petitioner as PNP
Superintendent, Metropolitan Traffic Command from enforcing the
demolition of market stalls along J. Gabriel, G.G. Cruz, Bayanihan, Lt.
Garcia Extension and Opena streets is hereby RESERVED and SET ASIDE.

SO ORDERED.