1.

SPOUSES RICARDO HIPOLITO, JR. and LIZA HIPOLITO, Petitioners,

vs.
TERESITA CINCO, CARLOTA BALDE CINCO and ATTY. CARLOS CINCO, Respondents.

DECISION

DEL CASTILLO, J.:

Findings of fact by administrative agencies are generally accorded great respect, if not finality, by the courts1 by
reason of the special knowledge and expertise of said administrative agencies over matters falling under their
jurisdiction.

Challenged in this Petition for Review on Certiorari2 are the May 19, 2006 Decision3 and August 15, 2006
Resolution4 of the Court of Appeals (CA) in CA-G.R. SP No. 89783 which dismissed petitioners’ Petition for
Review and denied their Motion for Reconsideration respectively. Said assailed CA Decision which affirmed the
February 28, 2005 Resolution5 of the Office of the President (OP), in O.P. Case No. 04-F-262, states, viz:

In fine, we hold that public respondent Office of the President, in affirming the resolution of the Secretary of the
DPWH which sustained the resolution and the demolition order of the OBO, committed no grave abuse of
discretion, the same being supported by evidence and having been issued in accordance with law and jurisprudence.

WHEREFORE, the petition is DISMISSED. The assailed Resolution dated February 28, 2005 of the Office of the
President of the Philippines, issued through the Deputy Executive Secretary for Legal Affairs in O.P. Case No. 04-F-
262, is AFFIRMED.

SO ORDERED.6

Petitioners beseech this Court to reverse and set aside said Decision and consequently, to alter a string of consistent
Resolutions issued by the OP in the said O.P. Case No. F-262, the Secretary of the Department of Public Works and
Highways (DPWH) in NBC Case No. 17-03-I-MLA,7 and the Office of the Building Official (OBO) of the City of
Manila in NBC Case No. NG-2002-06.8

Factual Antecedents

Petitioner-spouses Ricardo Hipolito, Jr. and Liza Hipolito (petitioners) allege that on June 15, 1989, Edeltrudis
Hipolito y Mariano (Edeltrudis)9 entered into an agreement 10 with Francisco Villena11 (now deceased) to rent a
portion of the property located at 2176 Nakar Street, San Andres Bukid, Manila and to construct an apartment-style
building adjacent to the existing house thereon. The contract was for a period of 20 years. Pursuant to the agreement,
Edeltrudis built a three-storey apartment building without securing a building permit. Petitioners inherited the
apartment building upon the death of Edeltrudis.

In 2002 or 13 years after the execution of the agreement, petitioners and the heirs of Francisco Villena, all residing
in the property, were informed that respondent Atty. Carlos D. Cinco (Atty. Cinco) acquired the subject property
through a deed of sale sometime in 1976.

On June 17, 2002, herein respondents Atty. Cinco, Teresita Cinco and Dr. Carlota Balde Cinco (respondents) filed
with the OBO a verified request 12 for structural inspection of an old structure located at 2176 Nakar Street, San
Andres Bukid, Manila.

Acting on the request, Building Inspector Engineer Leonardo B. Rico (Engr. Rico) conducted an initial inspection.
In his memorandum Engr. Rico reported that two old and dilapidated buildings made of wooden materials were
found in the premises and recommended that the matter be referred to the Committee on Buildings (Committee) for
further appropriate action and disposition.

Deemed as a petition for condemnation/abatement pursuant to the National Building Code (NBC) and its
Implementing Rules and Regulations, the verified request of the respondents was referred to the Committee for
Hearing/ Investigation.

With prior notices to the parties and the tenants, three hearings were subsequently held from August 12, 2002 to
September 20, 2002 for purposes of resolving the focal issue of "the structural stability, architectural presentability,
electrical and fire safety aspect to determine [whether] or not the subject buildings are still safe for continued
occupancy."13 On September 20, 2002, Victoria Villena, wife and heir of Francisco Villena and owner of one of the
two buildings, filed a counter manifestation questioning respondents’ personality to file the petition for
condemnation, and refuting the technical evaluation reports of Engr. Rico and respondents’ commissioned engineer.
Whereupon, the Committee was constrained to schedule an ocular inspection of the subject buildings on October 7,
2002. A report on the ocular inspection conducted was thereafter submitted through a Memorandum14 dated October
8, 2002, which states:

x x x The subject structure is a 3-storey at the rear portion and Two (2)[-] storey at the front made up of wooden
materials with G.I. sheet roofings.

II. Findings:

1. Corrugated G.I. sheet roofings and its accessories incurred extensive deterioration/[dilapidation] due to
weathering.

2. Ceiling boards [bulging] attributed to water leaks from defective roofing.

3. Exterior and interior wooden boards deteriorated.

4. Doors/windows including its jambs deteriorated/[dilapidated].

5. No provisions of firewall on the sides abutting private lot.

6. Rafters, purlins, and girts deteriorated due to neglect of maintenance.

7. Vibrations were felt on the wooden flooring when exerting wt. An indication that its support suffered
[material] fatigue due to wear and tear and termite infestation.

8. Wooden columns incurred deterioration/[dilapidation] due to weathering and termite infestation.

9. Open wiring installation/fire hazard.

10. With notices of condemned installation No. 2K3-62042 EPM issued by OIC, City Electrical Division,
DEPW.

11. Inadequate water supply and drainage system.

12. Outmoded T & G due to neglect of maintenance.

13. Inadequate sanitary/plumbing installation.

III. RECOMMENDATION:
From the foregoing, the subject buildings [appear] to have incurred extensive deterioration/[dilapidation] [attributed]
mainly to long weather exposure, poor maintenance and termite infestation on its architectural and structural
components by 60-80% which constitutes an Architectural eyesore, structurally unsafe as well as fire and electrical
hazard thereby endangering the life, safety, health and welfare [of] the general public specifically the tenants thereat,
hence, it is strongly recommended that the subject building be declared dangerous and ruinous in pursuance of Sec.
214 and 215 and Rules VII and Rule VIII of the Implementing Rules and Regulations of P.D. 1096.

Ruling of the Office of the Building Official

In a Resolution15 dated March 26, 2003, the OBO declared the buildings dangerous and ruinous, and recommended
their demolition, to wit:

xxxx

On the basis of the ocular inspection report submitted by the Committee on Buildings and the findings of the OIC,
City Electrical Division DEPW which form part of this resolution, it appearing that the subject structures incurred an
extensive degree of [dilapidation]/deterioration by 60-80% attributed mainly to long weather exposure, termite
infestation and neglect of maintenance on its architectural and structural component which constitute architectural
eyesore, structurally unsafe as well as electrical hazards thereby endangering the life, health property and welfare of
the general public particularly the tenants thereat [sic].

Such sorry condition of said structures exist to the extent that remedial/ rehabilitation which is no longer practical
and economical as it would entail/ necessitate a total overdone thereof [sic].

WHEREFORE, premises considered the Committee on Buildings and in consonance with the findings of the OIC,
City Electrical Division DEPW the subject buildings are hereby found and declared Dangerous and Ruinous and
strongly recommending the issuance of the corresponding Demolition Order in pursuance of Section[s] 214 and 215
of the National Building Code and Rule VII and VIII of its Implementing Rules and Regulations further directing
the tenants/ occupants thereat to vacate the premises within fifteen (15) days from receipt hereof to pave the way for
its peaceful and orderly [d]emolition activity.

SO ORDERED.

A Demolition Order16 addressed to the respondents was accordingly issued on even date with petitioners and their
tenants duly furnished with a copy thereof.

Petitioners thus appealed17 to the DPWH.

Ruling of the Department of Public Works and Highways

In their appeal, petitioners prayed for the reversal of the Resolution of the OBO and for the setting aside of the
Demolition Order on the ground that same were anomalously issued. They likewise contended that respondents’
petition for condemnation was actually an attempt to circumvent their rights as builders in good faith. Petitioners
prayed for a separate inspection of the two buildings by an impartial body.

Thus, another ocular inspection was conducted by the Inspectorate Team of the DPWH to determine the actual
physical condition of the subject buildings. The Inspectorate Team reported thus:

There are two (2) Buildings/Structures subject of this appeal. For proper identification of the two (2) Storey
Residential Building located at front No. 2176 Nakar Street, San Andres Bukid, is designated as Building I while the
Three (3) Storey Residential Building located at the rear portion is designated as [B]uilding 2.

Building 1
Building I is pre-war vintage (t)wo (2)[-](s)torey structure generally made of wooden materials. Corrugated G.I.
roofing sheets and its accessories are extensively corroded and deteriorated due to long existence, weather exposure
and improper maintenance. Gutters and [down spouts] are already missing. Interior and exterior wooden board
partitions are deteriorated by about eighty percent (80%). Roof eaves and media agues are deteriorated and some
wooden members are ready to collapse. Doors and windows including [their] jambs are deteriorated by about eighty
percent (80%). Wooden stair[s] leading to second floor is rotten and deteriorated due to long existence and termite
infestation. Wooden board floorings are sagging and vibration can be felt when walking on it. Plywood ceiling
boards are deteriorated by about eighty percent (80%).

The wooden roof framing parts such as rafters, purlins, and girts are rotten. Majority of the wooden posts are termite
infested and deteriorated. The wooden beams and floor joists are noted to have incurred deterioration. Vibration is
felt at the second floor wooden flooring when walked upon, an indication that its wooden structural supports show
signs of material fatigue due to wear and tear and termite infestation. Structural components of the structure were
observed to have deteriorated by about seventy five percent (75%).

Sanitary/Plumbing fixtures and systems within the building are noted outmoded, inadequate and not properly
maintained. Inadequate water supply and drainage system within the building is noted. The comfort room is useable
and functioning but is not properly ventilated and unsanitary.

The electrical wiring insulation shows sign of brittleness due to excessive exposure to ambient heat, moisture and
time element. Excessive octopus connections and dangling of wires/extensions [sic] cords are observed. Some
switches and convenience outlets are detached and defective. Junction/pullboxes are not properly covered thus
exposing electrical wiring connections. Some electrical wiring installations are attached to deteriorated parts of the
building. The electrical wiring installations are already old, not properly maintained and inadequate to conform to
the rules and regulations of the Philippine Electrical Code (PEC).

Building 2

Building 2 is a three (3)[-](s)torey structure located at the back of the Building I, and the usage is purely for
residential purposes. The building is constructed [out] of wooden materials, corrugated G.I. roofing sheets and plain
G.I. sheets for its accessories. The said building was constructed sometime in 1989, however, the construction is not
in accordance with the standard and the requirements of the National Building Code (PD 1096). Corrugated G.I.
roofing sheets are corroded and deterioration is about seventy percent (70%). [Down spouts] and gutters are no
longer in place. Interior and exterior wooden board sidings have incurred about sixty percent (60%) deterioration.
Some rooms have no proper ventilation due to excessive partitioning. Eaves [have] no ceiling. Wooden board
floorings are sagging and vibration is felt when walked upon due to undersized wooden framing. Substandard
ceiling height. Plywood ceiling boards are bulging. No fire resistive wall provided between the two buildings.

As to the Structural, Sanitary/Plumbing and Electrical aspects, Building 2 has the same findings as in Building I.

From the foregoing, it appears that the subject building attained a degree of dilapidation that repair works are no
longer practical and economical to undertake.

Therefore, it is recommended that the Demolition Order issued by the OBO, Manila be sustained. 18

On May 19, 2004, the Secretary of the DPWH rendered a Resolution19 dismissing the appeal of the petitioners for
lack of merit and affirming the Resolution of the OBO and the issuance of the Demolition Order.

In the same Resolution, the Secretary of the DPWH opined:

xxxx
In condemnation proceedings of dangerous and ruinous building pursuant to the National Building Code (NBC) and
its Implementing Rules and Regulations (IRR), the authority of the Building Official is confined to the assessment
of the physical condition of the building sought to be condemned and abated, and depending on the degree of its
deterioration and dilapidation, to issue appropriate order, taking into consideration the welfare and safety not only of
its occupants, but the public in general as well. Corollary thereto, said official is mandated under the Code, even in
the absence of a petitioner or complainant, to motu propio initiate condemnation proceedings of reported dangerous
and ruinous buildings. The inclusion thereof of the 3-storey building which appellant claims to have been built by
Ediltrudis Villena on the subject property in the hearing/investigation of the case was within the bounds of the duties
and responsibilities of the OBO. In the said proceedings, the Building Official shall not delve on issues affecting
contract involving the property or of the building subject of the case or of lessee-lessor relationship, since those are
matters within the competence of the court to pass upon.

Appellants’ allegation that inspection of the premises was done without their participation and [that they were] not
given the chance to engage the services of an engineer deserves scant consideration. Records revealed that
appellants who actively participated in the proceedings of the case were duly furnished with copies of appellees’
petition for condemnation and the technical evaluation report of their (appellees) commissioned engineer, and were
enjoined to submit their counter technical report. They however failed to comply. Appellants who at the same time
are residents of the building subject of the proceedings could have easily participated or hire[d] an engineer to
represent them in the inspection conducted by the Committee on Buildings on the premises as they were duly
notified about it and of which they signified their conformity during the hearing on September 20, 2002. x x x 20

Undaunted, petitioners filed an appeal21 with the OP.

Ruling of the Office of the President

Before the OP, the petitioners asserted that the findings of the DPWH Inspectorate Team is erroneous and that they
are builders in good faith. However, the OP found no reversible error to justify the reversal or modification of the
DPWH Resolution, and thus resolved to dismiss the appeal in a Resolution22 dated February 28, 2005.

The OP likewise subsequently denied with finality petitioners’ Motion for Reconsideration23 in an Order24 dated
April 25, 2005.

Aggrieved, petitioners filed a Petition for Review25 with the CA.

Ruling of the Court of Appeals

Before the CA, petitioners again raised the issues they advanced before the administrative bodies, particularly the
issue regarding the ownership of the lot vis-à-vis their right as builders in good faith.

However, the CA dismissed the petition for review and affirmed the OP Resolution without addressing the issue of
ownership. Petitioners filed a Motion for Reconsideration26 but same was denied in a Resolution27 dated August 15,
2006 for being a mere rehash or repetition of the issues raised in the petition.

Unwilling to concede, petitioners now come before this Court by way of Petition for Review on Certiorari under
Rule 45 of the Rules of Court.

Issues

Petitioners raise the following issues:

A.
 WHETHER x x x THE COURT OF APPEALS ERRED IN AFFIRMING THE RESOLUTION OF THE
ADMINISTRATIVE AUTHORITIES SUSTAINING THE RECOMMENDATIONS OF THE OFFICE
OF THE BUILDING OFFICIAL OF MANILA.

B.

WHETHER x x x THE OFFICE OF THE BUILDING OFFICIAL GRAVELY ERRED IN NOT

OBSERVING THE CARDINAL PRIMARY RIGHTS/DUE PROCESS REQUIREMENTS IN THE
CONDUCT OF THE HEARING AND IN THE CONTENTS OF THE INSPECTION REPORT
SUBMITTED BY THE INSPECTION TEAM INCLUDING THE RESOLUTION OF THE OBO.

C.

WHETHER x x x [THE] OFFICE OF THE BUILDING OFFICIAL (OBO) OF MANILA

OVERSTEPPED THE BOUNDS OF ITS AUTHORITY IN NOT APPLYING ARTICLE 482 AND
ARTICLES 694 TO 707 OF THE NEW CIVIL CODE IN IMPLEMENTING THE PROVISIONS OF
SECTION 215 OF THE BUILDING CODE P.D. 1096 IN THIS CASE.

D.

WHETHER x x x THE PETITIONER[S] OR THEIR PREDECESSOR IN INTEREST [ARE]/IS A

BUILDER IN GOOD FAITH OF THE 3[-]STOREY APARTMENT BUILDING LOCATED AT THE
REAR PORTION OF THE PROPERTY AND REFERRED TO AS BLDG. 2.

E.

WHETHER x x x THE ACTION FOR EXTRAJUDICIAL ABATEMENT OF NUISANCE IS PROPER

IN THIS CASE.28

Our Ruling

The petition lacks merit.

At the outset, "[i]t bears stressing that in a petition for review on certiorari [under Rule 45 of the Rules of Court], the
scope of this Court’s judicial review of decisions of the [CA] is generally confined only to errors of law, and
questions of fact are not entertained."29 The Supreme Court is not a trier of facts and it is not duty-bound to analyze
and weigh again the evidence considered in the proceedings below. 30 More so, this Court is not duty-bound to
analyze and weigh evidence pertaining to factual issues which have not been subject of any proper proceedings
below. "Well-entrenched and settled is the rule that points of law, theories, issues and arguments not brought to the
attention of the trial court adequately and on time need not be, and ordinarily will not be, considered by a reviewing
court as they cannot be raised for the first time on appeal."31 The determination of who owns the subject property,
the authenticity of the evidence of both parties, and whether petitioners are builders in good faith are questions of
fact, the resolution of which requires the examination of evidence that should be ventilated in a separate action
brought before a proper forum.

As correctly stated by the Secretary of the DPWH in its Resolution, 32 the administrative agencies’ jurisdiction in this
case is confined to the assessment of the physical condition of the building sought to be condemned and the issuance
of the appropriate order relative thereto. Issues affecting contract involving the property or of the buildings subject
of the case are not within their competence to rule upon. Lest this Court becomes a court of first instance instead of a
court of last resort, we decline to act on matters that have not run the proper legal course.

Nevertheless, we note that petitioners’ purported right to occupy the property has already ended two years ago when
the 20-year period of the lease agreement expired in year 2009. There being no provision in the contract, tacit or
otherwise, for renewal or extension of the lease, petitioners no longer have basis to keep hold of Building 2. Hence,
the determination of whether petitioners are builders in good faith is no longer necessary.

As to the other issues, suffice it to say that they boil down to the question of whether the issuance of the OBO
Resolution and Demolition Order was proper, and whether the CA erred when it affirmed the Resolutions of the OP
and the Secretary of the DPWH, which in turn, likewise affirmed the said OBO Resolution.

A Building Official has the authority to order the condemnation and demolition of buildings which are found to be
in a dangerous or ruinous condition.

"[I]t is unquestionable that the Building Official has the authority to order the condemnation and demolition of
buildings which are found to be in a dangerous or ruinous condition."33 This authority emanates from Sections 214
and 215 of the National Building Code (Presidential Decree [P.D.] No. 1096) which provides:

Section 214. Dangerous and Ruinous Buildings or Structures

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

Section 215. Abatement of Dangerous Buildings

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

There is, therefore, no question as to the authority of the OBO to render the challenged issuances. Here, the Building
Official was authorized to issue the questioned Demolition Order in view of his finding that the disputed structures
are dangerous and ruinous buildings within the purview of P.D. No. 1096, in relation to its Implementing Rules and
Regulations. Correspondingly, no irregularity in the process in which the resolution and demolition order were
issued is evident. As found by the CA, the records show that the OBO issued the resolution and Demolition Order
only after ocular inspections and hearings were conducted. Notably, the Inspectorate Team of the DPWH came up
with the same conclusion as the OBO when it conducted its own ocular inspection of the premises, that is both
Buildings 1 and 2 had structural, sanitary, plumbing and electrical defects of up to 80%.34

What is more, contrary to the position of the petitioners that the provisions of the Civil Code on abatement of
nuisances should have been applied in their case, the fact that the buildings in question could also constitute
nuisances under the Civil Code does not preclude the Building Official from issuing the assailed Demolition Order.
As provided by P.D. No. 1096, the authority of the Building Official to order the repair, vacation or demolition, as
the case may be, is without prejudice to further action that may be undertaken under the relevant provisions of the
Civil Code.35

The position taken by petitioners that the OBO is duty-bound to first order the repair of ruinous and dangerous
buildings is erroneous. Petitioners, in their Memorandum, 36 quoted Section 215 of the National Building Code, thus:

Section 215. Abatement of Dangerous Buildings

When any building or structure is found or declared to be dangerous or ruinous, the Building Official shall order its
repair, vacation or demolition depending upon the degree of danger to life, health, or safety. This is without
prejudice to further action that may be taken under the provisions of Articles 482 and 694 to 707 of the Civil Code
of the Philippines.37

A careful reading of the provision shows that it does not require the OBO to take actions in the same order or
sequence that Section 215 enumerates them. Instead, it authorizes the Building Official to order either the repair,
vacation, or demolition of the building depending on the circumstances presented before it, particularly on the
degree of danger to life, health and safety. In the case at bench, the OBO, based on its assessment of the buildings,
deemed it necessary to recommend and order the demolition of the said buildings, having found them dilapidated
and deteriorated by up to 80%.

The Court of Appeals correctly affirmed the resolution issued by the Office of the President

Petitioners find error in the CA’s reliance on the report of the OBO in affirming the resolution of the OP. Petitioners
contend that the initiation of the proceedings in the OBO was calculated to oust them from the property and to
circumvent their rights as builders in good faith thereby making the findings and issuances of the OBO unreliable.
Petitioners thus beseech this Court to ascertain facts that have already been determined by the administrative
agencies involved and thereafter reviewed and affirmed by the CA.

We find the contention without merit.

The mandate of the OBO is to act motu proprio, or upon petition validly received, on reported dangerous and
ruinous buildings and structures that pose a threat to the life, health and well-being of the inhabitants, and the
general public. Hence, the OBO, based on its findings, can still act on the matter pursuant to such mandate,
notwithstanding petitioners’ claim that respondents initiated the proceedings to circumvent their rights under the law
as builders in good faith. Otherwise stated, respondents’ motive in initiating the proceedings which led to the
issuance of the challenged OBO Resolution and Demolition Order is immaterial as far as the OBO is concerned, so
long as it is satisfied that a building or structure is dangerous and ruinous.

Remarkably, both the DPWH and the OP found no irregularities in the manner that officials of the OBO performed
their duties and in coming up with its Resolution and Demolition Order. This conclusion was affirmed by the CA
when it resolved the petition before it.

We find no error on the part of the CA when it relied on the findings of fact of the OBO and the other administrative
bodies. As correctly stated by the CA in its Decision:

The powers granted by law, particularly the National Building Code to the Building Official regarding demolition of
buildings are executive and administrative in nature. It is a well-recognized principle that purely administrative and
discretionary functions may not be interfered with by the courts. In general, courts have no supervising power over
the proceedings and actions of the administrative departments of the government. This is generally true with respect
to acts involving the exercise of judgment or discretion and findings of fact. The established exception to the rule is
where the issuing authority has gone beyond its statutory authority, exercised unconstitutional powers or clearly
acted arbitrarily and without regard to his duty or with grave abuse of discretion. None of these obtains in the case at
bar. (Citations omitted.)38

"By reason of the special knowledge and expertise of said administrative agencies over matters falling under their
jurisdiction, they are in a better position to pass judgment thereon; thus, their findings of fact in that regard are
generally accorded great respect, if not finality, by the courts."39 Such findings must be respected as long as they are
supported by substantial evidence, even if such evidence is not overwhelming or even preponderant. 40 It is not the
task of the appellate court to once again weigh the evidence submitted before and passed upon by the administrative
body and to substitute its own judgment regarding sufficiency of evidence. 41

Similarly, this Court will not disturb these factual findings absent compelling reasons to do so.1âwphi1 This Court,
in numerous occasions, has cited exceptions to the general rule that it is not a trier of facts. None of the said
exceptions is present in this case. The conclusion reached by the administrative agencies involved after thoroughly
conducting their ocular inspections and hearings and considering all pieces of evidence presented before them,
which finding was affirmed by the CA, must now be regarded with great respect and finality by this Court.

We take this opportunity to inform petitioners that the appellate court cannot be expected to actually perform the
inspection itself for purposes of validating the findings of the administrative bodies. Reliance on findings of fact of
the lower courts or, in this case, administrative bodies, does not mean that the appellate court does not conduct its
own review. In fact, the appellate court painstakingly studies every piece of document that comes into its hands,
putting together every piece of the puzzle to come up with the whole picture of the controversy brought before it.
That is no easy task.

WHEREFORE, the petition is DENIED. The Decision dated May 19, 2006 and the Resolution dated August 15,
2006 of the Court of Appeals in CA-G.R. SP No. 89783 are AFFIRMED.

2.

LINDA RANA, Petitioner,

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

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

G.R. No. 192862

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

DECISION

PERLAS-BERNABE, J.:

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

The Facts

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

On the opposite side of the subject road, across the Wong-Ong property, are the adjacent lots of Spouses Wilson and
Rosario Uy (Sps. Uy) and Spouses Reynaldo and Linda Rana (Sps. Rana), respectively covered by TCT Nos.
1240958 (Uy property) and T-1155699 (Rana property). The said lots follow a rolling terrain10 with the Rana
property standing about two (2) meters11 higher than and overlooking the Uy property, while the Wong-Ong
property is at the same level with the subject road.12
Sometime in 1997, Sps. Rana elevated and cemented a portion of the subject road that runs between the Rana and
Wong-Ong properties (subject portion) in order to level the said portion with their gate.13 Sps. Rana likewise
backfilled a portion (subject backfilling) of the perimeter fence separating the Rana and Uyproperties without
erecting a retaining wall that would hold the weight of the added filling materials. The matter was referred to the
Office of the Barangay Captain of Lahug14 as well as the Office of the Building Official of Cebu City (OBO),15 but
to no avail.16

The RTC Proceedings

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

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

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

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

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

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

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

The RTC Ruling

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

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

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

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

The CA Ruling

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

With respect to Civil Case No. CEB-20893, the CA found that (a) Sps. Rana’s act of elevating and cementing the
subject portion curtailed the use and enjoyment by Wong and Sps. Ong of their properties; (b) the undue demolition
of the subject portion by Wong, et al.hampered Sps. Rana’s ingress and egress to their residence and deprived them
of the use of their vehicle which was entrapped in their garage; and (c) both parties were equally at fault in
causingdamage and injury to each other and, thus, are not entitled to the reliefs sought for.38

On the other hand, the CA found that the backfilling done by Sps. Rana on their property requires necessary works
to prevent it from jeopardizing someone’s life or limb.39

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

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

The Issues Before the Court

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

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

The Court’s Ruling

The petitions are partly meritorious.

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

A. Civil Case No. CEB-20893

For Abatement of Nuisance and Damages.

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

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

Jurisprudence further classifies nuisances in relation to their legal susceptibility to summary abatement (that is,
corrective action without prior judicial permission). In this regard, a nuisance may either be: (a) a nuisance per se(or
one which "affects the immediate safety of persons and property and may be summarily abated under the undefined
law of necessity");50 or (b) a nuisance per accidens(or that which "depends upon certain conditions and
circumstances, and its existence being a question of fact, it cannot be abated without due hearing thereon ina tribunal
authorized to decide whether such a thing does in law constitute a nuisance.")51

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

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

Respondents can not seek cover under the general welfare clause authorizing the abatement of nuisances without
judicial proceedings. That tenet applies to a nuisance per se, or one which affects the immediate safety of persons
and property and may be summarily abated under the undefined law of necessity. The storage of copra in the
quonset building is a legitimate business. By its nature, it can not be said to be injurious to rights of property, of
health or of comfort of the community. If it be a nuisance per accidensit may be so proven in a hearing conducted
for thatpurpose. It is not per sea nuisance warranting its summary abatement without judicial intervention.
In Pampanga Bus Co., Inc. v. Municipality of Tarlacwhere the appellant-municipality similarly argued that the
terminal involved therein is a nuisance that may be abated by the Municipal Council viaan ordinance, this Court
held: "Suffice it to say that in the abatement of nuisances the provisions of the Civil Code (Articles 694-707) must
be observed and followed. This appellant failed to do."53 (Emphases supplied; citations omitted)

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

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

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

Sps. Rana’s entitlement to the above-mentioned damages, however, only stands in theory.1âwphi1 This is because
the actual award thereof is precluded by the damage they themselves have caused Wong, et al. in view of their
construction of the subject portion. As the records establish, Sps. Rana, without prior consultation with Wong, et al.
and to their sole advantage, elevated and cemented almost half61 of the 10-meter wide subject road. As homeowners
of Peace Valley Subdivision, Wong, et al. maintain the rights to the unobstructed use of and free passage over the
subject road. By constructing the subject portion, Sps. Rana introduced a nuisance per accidensthat particularly
transgressed the aforesaid rights. Thus, for the vindication and recognition of Wong, et al.’srights, Sps. Rana should
be similarly held liable for nominal damages. Under Article 2216 of the Civil Code,62 courts have the discretion to
determine awards of nominal and temperate damages without actual proof of pecuniary loss, as in this case.
Assessing the respective infractions of the parties herein, the Court finds it prudent to sustain the CA’s verdict
offsetting the damage caused by said parties against each other. The Court can, however, only concur with the CA in
result since the latter inaccurately applied,63 as basis for its ruling, the in pari delictoprinciple enunciated in the case
of Yu Bun Guan v. Ong64 (Yu Guan).In said case, the Court discussed the in pari delicto principle with respect to
the subject matter ofinexistent and void contracts, viz.:

Inapplicability of the in Pari Delicto Principle

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

"The principle of in pari delicto non oritur actio denies all recovery to the guilty parties inter se. It applies to cases
where the nullity arises from the illegality of the consideration orthe purpose of the contract. When two persons are
equally at fault, the law does not relieve them. The exception to this general rule is when the principle is invoked
with respect to inexistent contracts."65 (emphasis supplied; citations omitted)
Clearly, no void or inexistent contract is hereinat issue, hence, the Court’s disagreement with the CA’s invocation of
Yu Guanin this respect.

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

B. Civil Case No. CEB-21296

For Recovery of Property.

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

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

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

Expenses.

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

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

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

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

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

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

In Civil Case No. CEB-20893:

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

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

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

In Civil Case No. CEB-21296:

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

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

SO ORDERED.

3.

G.R. No. 182567 July 13, 2009

GUILLERMO M. TELMO, Petitioner,
vs.
LUCIANO M. BUSTAMANTE, Respondent.

DECISION

NACHURA, J.:

For our consideration is a Petition1 for Review on Certiorari under Rule 45 of the Rules of Court in relation to
Section 27, paragraph 3 of the Ombudsman Act of 1989 (Republic Act No. 6770). Subject of the Petition is the
Decision2 dated October 13, 2005 and the Order3 dated March 17, 2006 of the Office of the Deputy Ombudsman for
Luzon.

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

The complaint alleged that respondent is a co-owner of a real property of 616 square meters in Brgy. Halang, Naic,
Cavite, known as Lot 952-A and covered by Transfer Certificate of Title No. T-957643 of the Register of Deeds of
Cavite. Petitioner and Elizalde Telmo (Telmos) are the owners of the two (2) parcels of land denominated as Lot
952-B and 952-C, respectively, located at the back of respondent’s lot. When his lot was transgressed by the
construction of the Noveleta-Naic-Tagaytay Road, respondent offered for sale the remaining lot to the Telmos. The
latter refused because they said they would have no use for it, the remaining portion being covered by the road’s 10-
meter easement.

The complaint further alleged that, on May 8, 2005, respondent caused the resurvey of Lot 952-A in the presence of
the Telmos. The resurvey showed that the Telmos encroached upon respondent’s lot. Petitioner then uttered,
"Hangga’t ako ang municipal engineer ng Naic, Cavite, hindi kayo makakapagtayo ng anuman sa lupa n’yo; hindi
ko kayo bibigyan ng building permit."

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

Respondent complained that he and his co-owners did not receive any just compensation from the government when
it took a portion of their property for the construction of the Noveleta-Naic-Tagaytay Road. Worse, they could not
enjoy the use of the remaining part of their lot due to the abusive, Illegal, and unjust acts of the Telmos and
Consumo. Respondent charged the latter criminally—for violation of Article 3125 of the Revised Penal Code and
Section 3(e)6 of Republic Act No. 30197— and administratively—for violation of Section 4 (a)8, (b)9, (c)10, and (e)11
of Republic Act No. 6713.12

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

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

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

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

Later, petitioner and respondent filed their respective position papers15 upon the directive of the Graft Investigating
and Prosecuting Officer. Their position papers reiterated the allegations made in their respective affidavits earlier
submitted.

In the Decision16 dated October 13, 2005, the Office of the Deputy Ombudsman for Luzon found petitioner and
Danilo Consumo administratively liable, but dismissed the charge against Elizalde Telmo for lack of jurisdiction
over his person, he being a private individual. The dispositive portion of the Decision states—

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

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

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

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

SO DECIDED.17

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

In the Order19 dated March 17, 2006, the Office of the Deputy Ombudsman for Luzon denied the Motion for
Reconsideration for lack of merit.

Hence, this petition anchored on the following grounds:

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

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

C. THE HONORABLE DEPUTY OMBUDSMAN FOR LUZON ERRED WHEN HE METED THE PENALTY
OF FINE EQUIVALENT TO SIX (6) MONTHS SALARY FOR VIOLATION OF SECTION 4 OF REPUBLIC
ACT NO. 6713.20

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

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

We disagree.

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

It cannot be denied that respondent’s property was taken by the National Government thru the Department of Public
Works and Highways when it constructed the Noveleta-Naic-Tagaytay Road. What is not clear from the records of
this case is whether respondent’s property was taken as part of the national road itself or only as part of the right-of-
way easement therefor. We observe that the re-survey plan27 of his property attached by respondent to his complaint
and the survey plan28 of the Noveleta-Naic-Tagaytay Road submitted by petitioner appear to be different.
Nevertheless, it is evident from the sketch plans that respondent could not enclose his property because it is now
being used by the National Government. Therefore, whatever cause of action respondent may have in his claim for
just compensation for the taking of his property, the same should be lodged against the National Government.

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

First. Petitioner claims that his act of summarily removing respondent’s concrete posts was authorized under the
National Building Code (Presidential Decree No. 1096). The provision he cites correctly pertains to Section 215,
which reads—
Sec. 215. Abatement of Dangerous Buildings.—When any building or structure is found or declared to be dangerous
or ruinous, the Building Official shall order its repair, vacation or demolition depending upon the decree of danger
to life, health, or safety. This is without prejudice to further action that may be taken under the provisions of Articles
482 and 694 to 707 of the Civil Code of the Philippines.1avvphi1

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

Sec. 214. Dangerous and Ruinous Buildings or Structures. Dangerous buildings are those which are herein declared
as such or are structurally unsafe or not provided with safe egress, or which constitute a fire hazard, or are otherwise
dangerous to human life, or which in relation to existing use, constitute a hazard to safety or health or public welfare
because of inadequate maintenance, dilapidation, obsolescence, or abandonment, or which otherwise contribute to
the pollution of the site or the community to an intolerable degree.1avvphi1

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

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

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

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

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

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

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

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

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

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

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

SO ORDERED.

4.

JOSE "PEPITO" TIMONER, petitioner,

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

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

The Solicitor General for respondents.

ESCOLIN, J.:ñé+.£ªwph!1

Petition for review of the affirmance in toto by the Court of Appeals, now the Intermediate Appellate Court, of the
judgment of conviction handed down by the then Municipal Court of Daet, Camarines Norte, in Criminal Case No.
4281, entitled People of the Philippines vs. Jose Timoner, finding petitioner guilty of the crime of grave coercion, as
follows: têñ.£îhqwâ£
 WHEREFORE this Court finds the accused JOSE 'PEPITO' TIMONER guilty beyond reasonable
doubt of the crime of Grave Coercion as penalized under Art. 286 in the Revised Penal Code, and
hereby sentences the said accused pursuant to the provision of Rule 64, Par. 3, to suffer SIX
MONTHS OF IMPRISONMENT OF ARRESTO MAYOR IN ITS MAXIMUM PERIOD, to pay
a fine of P300.00 and to pay the offended party in the amount of P5,000.00 as damages, without
subsidiary liability in case of insolvency. The other accused SAMUEL MORENA and ERNESTO
QUIBRAL are hereby ordered ACQUITTED.

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

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

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

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

Petitioner contends that the sealing off of complainant Dayaon's barbershop was done in abatement of a public
nuisance and, therefore, under lawful authority.

We find merit in this contention. Unquestionably, the barbershop in question did constitute a public nuisance as
defined under Article Nos. 694 and 695 of the Civil Code, to wit: têñ.£îhqwâ£

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

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

(2) Annoys or offends the senses; or

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

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

(5) Hinders or impairs the use of property.

ART. 695. Nuisance is either public or private. A public nuisance affects a community or
neighborhood or any considerable number of persons, although the extent of the annoyance,
danger or damage upon individuals may be unequal A private nuisance is one that is not included
in the foregoing definition.
The barbershop occupied a portion of the sidewalk of the poblacion's main thoroughfare and had been recommended
for closure by the Municipal Health Officer. In fact, the Court of First Instance of Camarines Norte, in its decision in
Civil Case No. 2257, declared said barbershop as a nuisance per-se. Thus: têñ.£îhqwâ£

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

xxx xxx xxx

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

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

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

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

[2] A civil action; or

[3] Abatement, without judicial proceedings.

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

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

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

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

5.

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

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

Bienvenido G. Martin for petitioner.

Laurencio Saavedra for private respondents.

MELENCIO-HERRERA, J.:

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

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

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

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

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

Aggrieved, petitioner sought a Writ of Prohibition with Injunction and Damages before the Regional Trial Court of
Basilan, Branch 2 (docketed as S.P. No. 4).

On 7 August 1989, the Trial Court1 denied the Writ of Prohibition and upheld the power of respondent Mayor to
order the demolition without judicial authority, adverting to Zoning Ordinance No. 147 of the Municipality of
Isabela, Basilan. Petitioner duly interposed an appeal.

On 6 September 1989, petitioner's quonset building was completely demolished (Rollo, p. 49). In its place sprang
shanties and nipa huts, photographs of which have been attached to petitioner's Memorandum.
On 25 January 1990, the Court of Appeals (in CA-G.R. SP No. 18822)2 initially reversed the Trial Court and issued
a Writ of Prohibition. It ruled that Respondent Mayor was not vested with power to order summarily, and without
any judicial proceeding, the demolition of the quonset building, which was not a nuisance per se and that petitioner
is in legal possession of the land on which the building stands by virtue of the permit issued by the Philippine Ports
Authority (Zamboanga Province). The restoration to petitioner of the building materials removed upon demolition,
and the payment to it of attorney's fees of P10,000.00, were also ordered.

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

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

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

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

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

A certificate of non-conformance for all non-conforming uses shall be applied for by the owner or agent of
the property involved within twelve (12) months from the approval of this Ordinance, otherwise the non-
conforming use may be condemned or removed at the owner's expense.

Even granting that petitioner failed to apply for a Certificate of Non-conformance, the foregoing provision should
not be interpreted as authorizing the summary removal of a non-conforming building by the municipal government.
For if it does, it must be struck down for being in contravention of the requirements of due process, as originally
held by the respondent Court.

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

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

Any person who violates any of the provisions of this ordinance shall, upon conviction, be punished by a
fine of not less than fifty pesos (P50.00) but not more than two hundred pesos (P200.00) or by
imprisonment of not less than one (1) month but not exceeding six (6) months, or both, at the discretion of
the Court . . . (ibid., Sec. 11). [Emphasis ours].
Violation of a municipal ordinance neither empowers the Municipal Mayor to avail of extra-judicial
remedies.1avvphi1 On the contrary, the Local Government Code imposes upon him the duty "to cause to be
instituted judicial proceedings in connection with the violation of ordinances" (Local Government Code, Sec. 141
[2] [t]).

Respondents can not seek cover under the general welfare clause authorizing the abatement of nuisances without
judicial proceedings. That tenet applies to a nuisance per se or one which affects the immediate safety of persons
and property and may be summarily abated under the undefined law of necessity (Monteverde v. Generoso, 52 Phil.
123 [1982]). The storage of copra in the quonset building is a legitimate business. By its nature, it can not be said to
be injurious to rights of property, of health or of comfort of the community.1âwphi1 If it be a nuisance per accidens
it may be so proven in a hearing conducted for that purpose. It is not per se a nuisance warranting its summary
abatement without judicial intervention.

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

While the Sangguniang Bayan may provide for the abatement of a nuisance (Local Government Code, Sec. 149
[ee]), it can not declare a particular thing as a nuisance per se and order its condemnation. The nuisance can only be
so adjudged by judicial determination.

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

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

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

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

SO ORDERED.

6.
CELESTINO TATEL, petitioner,
vs.
MUNICIPALITY OF VIRAC, SALVADOR A. SURTIDA, in his capacity as Mayor of Virac, Catanduanes;
GAVINO V. GUERRERO, in his capacity as Vice-Mayor of Virac, Catanduanes; JOSE T. BUEBOS, in his
capacity as Councilor of Virac, Catanduanes; ANGELES TABLIZO, in his capacity as Councilor of Virac,
Catanduanes; ELPIDIO T. ZAFE, in his capacity as Councilor of Virac, Catanduanes; MARIANO
ALBERTO, in his capacity as Councilor of Virac, Catanduanes; JULIA A. GARCIA, in her capacity as
Councilor of Virac, Catanduanes; and PEDRO A. GUERRERO, in his capacity as Councilor of Virac,
Catanduanes, respondents.

NOCON, J.:

This is a Petition for Prohibition with Preliminary Injunction with the Court of First Instance of Catanduanes filed
by appellant, Celestino Tatel, a businessman engaged in the import and export of abaca and other products against
the Municipal Council of Virac, Catanduanes and its municipal officials enjoining them from enforcing Resolution
No 29 1 of the Council, declaring the warehouse of petitioner in barrio Sta. Elena of the said municipality a public
nuisance within the purview of Article 694 of the Civil Code of the Philippines and directing the petitioner to
remove and transfer said warehouse to a more suitable place within two (2) months from receipt of the said
resolution.

It appears from the records that on the basis of complaints received from the residents of barrio Sta. Elena on March
18, 1966 against the disturbance caused by the operation of the abaca bailing machine inside the warehouse of
petitioner which affected the peace and tranquility of the neighborhood due to the smoke, obnoxious odor and dust
emitted by the machine, a committee was appointed by the municipal council of Virac to investigate the matter. The
committee noted the crowded nature of the neighborhood with narrow roads and the surrounding residential houses,
so much so that an accidental fire within the warehouse of the petitioner occasioned by the continuance of the
activity inside the warehouse and the storing of inflammable materials created a danger to the lives and properties of
the people within the neighborhood.

Resultantly, Resolution No. 29 was passed by the Municipal Council of Virac on April 22, 1966 declaring the
warehouse owned and operated by petitioner a public nuisance within the purview of Article 694 of the New Civil
Code. 2

His motion for reconsideration having been denied by the Municipal Council of Virac, petitioner instituted the
present petition for prohibition with preliminary injunction.

Respondent municipal officials contend that petitioner's warehouse was constructed in violation of Ordinance No.
13, series of 1952, prohibiting the construction of warehouses near a block of houses either in the poblacion or
barrios without maintaining the necessary distance of 200 meters from said block of houses to avoid loss of lives and
properties by accidental fire.

On the other hand, petitioner contends that said ordinance is unconstitutional, contrary to the due process and equal
protection clause of the Constitution and null and void for not having been passed in accordance with law.

The issue then boils down on whether petitioner's warehouse is a nuisance within the meaning of Article 694 of the
Civil Code and whether Ordinance No. 13, S. 1952 of the Municipality of Virac is unconstitutional and void.

In a decision dated September 18, 1969, the court a quo ruled as follows:
 1. The warehouse in question was legally constructed under a valid permit issued by the
municipality of Virac in accordance with existing regulations and may not be destroyed or
removed from its present location;

2. Ordinance No. 13, series of 1952, is a legitimate and valid exercise of police power by the
Municipal Council of Virac is not (sic) unconstitutional and void as claimed by the petitioner;

3. The storage by the petitioner of abaca and copra in the warehouse is not only in violation of the
provisions of the ordinance but poses a grave danger to the safety of the lives and properties of the
residents of the neighborhood due to accidental fire and constitutes a public nuisance under the
provisions of Article 694 of the New Civil code of the Philippines and may be abated;

4. Accordingly, the petitioner is hereby directed to remove from the said warehouse all abaca and
copra and other inflammable articles stored therein which are prohibited under the provisions of
Ordinance No. 13, within a period of two (2) months from the time this decision becomes final
and that henceforth, the petitioner is enjoined from storing such prohibited articles in the
warehouse. With costs against petitioner.

Seeking appellate review, petitioner raised as errors of the court a quo:

1. In holding that Ordinance No. 13, series of 1952, of the Municipality of Virac, Catanduanes, is
a legitimate and valid exercise of police power of the Municipal Council, and therefore,
constitutional;

2. In giving the ordinance a meaning other than and different from what it provided by declaring
that petitioner violated the same by using the warehouse for storage of abaca and copra when what
is prohibited and penalized by the ordinance is the construction of warehouses.

3. In refusing to take judicial notice of the fact that in the municipality, there are numerous
establishments similarly situated as appellants' warehouses but which are not prosecuted.

We find no merit in the Petition.

Ordinance No. 13, series of 1952, was passed by the Municipal Council of Virac in the exercise of its police power.
It is a settled principle of law that municipal corporations are agencies of the State for the promotion and
maintenance of local self-government and as such are endowed with the police powers in order to effectively
accomplish and carry out the declared objects of their creation. 3 Its authority emanates from the general welfare
clause under the Administrative Code, which reads:

The municipal council shall enact such ordinances and make such regulations, not repugnant to
law, as may be necessary to carry into effect and discharge the powers and duties conferred upon it
by law and such as shall seem necessary and proper to provide for the health and safety, promote
the prosperity, improve the morals, peace, good order, comfort and convenience of the
municipality and the inhabitants thereof, and for the protection of property therein. 4

For an ordinance to be valid, it must not only be within the corporate powers of the municipality to enact but must
also be passed according to the procedure prescribed by law, and must be in consonance with certain well
established and basic principles of a substantive nature. These principles require that a municipal ordinance (1) must
not contravene the Constitution or any statute (2) must not be unfair or oppressive (3) must not be partial or
discriminatory (4) must not prohibit but may regulate trade (5) must be general and consistent with public policy,
and (6) must not be unreasonable. 5 Ordinance No. 13, Series of 1952, meets these criteria.
As to the petitioner's second assignment of error, the trial court did not give the ordinance in question a meaning
other than what it says. Ordinance No. 13 passed by the Municipal Council of Virac on December 29, 1952, 6 reads:

AN ORDINANCE STRICTLY PROHIBITING THE CONSTRUCTION OF WAREHOUSE IN

ANY FORM NEAR A BLOCK OF HOUSES EITHER IN POBLACION OR BARRIO WITH
NECESSARY DISTANCE TO AVOID GREAT LOSSES OF PROPERTY AND LIVES BY
FIRE ACCIDENT.

Section 1 provides:

It is strictly prohibited to construct warehouses in any form to any person, persons, entity,
corporation or merchants, wherein to keep or store copra, hemp, gasoline, petroleum, alcohol,
crude oil, oil of turpentine and the like products or materials if not within the distance of 200
meters from a block of houses either in the poblacion or barrios to avoid great losses of properties
inclusive lives by fire accident.

Section 2 provides: 7

Owners of warehouses in any form, are hereby given advice to remove their said warehouses this
ordinance by the Municipal Council, provided however, that if those warehouses now in existence
should no longer be utilized as such warehouse for the above-described products in Section 1 of
this ordinance after a lapse of the time given for the removal of the said warehouses now in
existence, same warehouses shall be exempted from the spirit of the provision of section 1 of this
ordinance, provided further, that these warehouses now in existence, shall in the future be
converted into non-inflammable products and materials warehouses.

In spite of its fractured syntax, basically, what is regulated by the ordinance is the construction of warehouses
wherein inflammable materials are stored where such warehouses are located at a distance of 200 meters from a
block of houses and not the construction per se of a warehouse. The purpose is to avoid the loss of life and property
in case of fire which is one of the primordial obligation of the government.

This was also the observation of the trial court:

A casual glance of the ordinance at once reveals a manifest disregard of the elemental rules of
syntax. Experience, however, will show that this is not uncommon in law making bodies in small
towns where local authorities and in particular the persons charged with the drafting and
preparation of municipal resolutions and ordinances lack sufficient education and training and are
not well grounded even on the basic and fundamental elements of the English language commonly
used throughout the country in such matters. Nevertheless, if one scrutinizes the terms of the
ordinance, it is clear that what is prohibited is the construction of warehouses by any person, entity
or corporation wherein copra, hemp, gasoline and other inflammable products mentioned in
Section 1 may be stored unless at a distance of not less than 200 meters from a block of houses
either in the poblacion or barrios in order to avoid loss of property and life due to fire. Under
Section 2, existing warehouses for the storage of the prohibited articles were given one year after
the approval of the ordinance within which to remove them but were allowed to remain in
operation if they had ceased to store such prohibited articles.

The ambiguity therefore is more apparent than real and springs from simple error in grammatical
construction but otherwise, the meaning and intent is clear that what is prohibited is the
construction or maintenance of warehouses for the storage of inflammable articles at a distance
within 200 meters from a block of houses either in the poblacion or in the barrios. And the purpose
of the ordinance is to avoid loss of life and property in case of accidental fire which is one of the
primordial and basic obligation of any government. 8
Clearly, the lower court did NOT add meaning other than or differrent from what was provided in the ordinance in
question. It merely stated the purpose of the ordinance and what it intends to prohibit to accomplish its purpose.

As to the third assignment of error, that warehouses similarly situated as that of the petitioner were not prosecuted,
suffice it to say that the mere fact that the municipal authorities of Virac have not proceeded against other
warehouses in the municipality allegedly violating Ordinance No. 13 is no reason to claim that the ordinance is
discriminatory. A distinction must be made between the law itself and the manner in which said law is implemented
by the agencies in charge with its administration and enforcement. There is no valid reason for the petitioner to
complain, in the absence of proof that the other bodegas mentioned by him are operating in violation of the
ordinance and that the complaints have been lodged against the bodegas concerned without the municipal authorities
doing anything about it.

The objections interposed by the petitioner to the validity of the ordinance have not been substantiated. Its purpose is
well within the objectives of sound government. No undue restraint is placed upon the petitioner or for anybody to
engage in trade but merely a prohibition from storing inflammable products in the warehouse because of the danger
of fire to the lives and properties of the people residing in the vicinity. As far as public policy is concerned, there can
be no better policy than what has been conceived by the municipal government.

As to petitioner's contention of want of jurisdiction by the lower court we find no merit in the same. The case is a
simple civil suit for abatement of a nuisance, the original jurisdiction of which falls under the then Court of First
Instance.

WHEREFORE, for lack of merit, the petition is hereby DISMISSED. Costs against petitioner.

SO ORDERED.

7.

SOFIA FERNANDO, in her behalf and as the legal guardian of her minor children, namely: ALBERTO &
ROBERTO, all surnamed FERNANDO, ANITA GARCIA, NICOLAS LIAGOSO, ROSALIA
BERTULANO, in her behalf and as the legal guardian of her minor children, namely: EDUARDO,
ROLANDO, DANIEL, AND JOCELYN, all surnamed BERTULANO, PRIMITIVA FAJARDO in her behalf
and as legal guardian of her minor children, namely: GILBERT, GLEN, JOCELYN AND JOSELITO, all
surnamed FAJARDO, and EMETERIA LIAGOSO, in her behalf and as guardian ad litem, of her minor
grandchildren, namely: NOEL, WILLIAM, GENEVIEVE and GERRY, all surnamed LIAGOSO, petitioners,
vs.
THE HONORABLE COURT OF APPEALS AND CITY OF DAVAO, respondents.

MEDIALDEA, J.:

This is a petition for review on certiorari praying that the amended decision of the Court of Appeals dated January
11, 1990 in CA-G.R. No. C.V. 04846, entitled "Sofia Fernando, etc., et al. v. The City of Davao," be reversed and
that its original decision dated January 31, 1986 be reinstated subject to the modification sought by the petitioners in
their motion for partial reconsideration dated March 6, 1986.

The antecedent facts are briefly narrated by the trial court, as follows:

From the evidence presented we see the following facts: On November 7, 1975, Bibiano Morta,
market master of the Agdao Public Market filed a requisition request with the Chief of Property of
 the City Treasurer's Office for the re-emptying of the septic tank in Agdao. An invitation to bid
was issued to Aurelio Bertulano, Lito Catarsa, Feliciano Bascon, Federico Bolo and Antonio
Suñer, Jr. Bascon won the bid. On November 26, 1975 Bascon was notified and he signed the
purchase order. However, before such date, specifically on November 22, 1975, bidder Bertulano
with four other companions namely Joselito Garcia, William Liagoso, Alberto Fernando and Jose
Fajardo, Jr. were found dead inside the septic tank. The bodies were removed by a fireman. One
body, that of Joselito Garcia, was taken out by his uncle, Danilo Garcia and taken to the Regional
Hospital but he expired there. The City Engineer's office investigated the case and learned that the
five victims entered the septic tank without clearance from it nor with the knowledge and consent
of the market master. In fact, the septic tank was found to be almost empty and the victims were
presumed to be the ones who did the re-emptying. Dr. Juan Abear of the City Health Office
autopsied the bodies and in his reports, put the cause of death of all five victims as "asphyxia"
caused by the diminution of oxygen supply in the body working below normal conditions. The
lungs of the five victims burst, swelled in hemmorrhagic areas and this was due to their intake of
toxic gas, which, in this case, was sulfide gas produced from the waste matter inside the septic
tank. (p. 177, Records)

On August 28, 1984, the trial court rendered a decision, the dispositive portion of which reads:

IN VIEW OF THE FOREGOING, this case is hereby DISMISSED without pronouncement as to

costs.

SO ORDERED. (Records, p. 181)

From the said decision, the petitioners appealed to the then Intermediate Appellate Court (now Court of Appeals).
On January 3, 1986, the appellate court issued a decision, the dispositive portion of which reads:

WHEREFORE, in view of the facts fully established and in the liberal interpretation of what the
Constitution and the law intended to protect the plight of the poor and the needy, the ignorant and
the
indigent –– more entitled to social justice for having, in the unforgettable words of Magsaysay,
"less in life," We hereby reverse and set aside the appealed judgment and render another one:

1. Ordering the defendant to pay to the plaintiffs Dionisio Fernando, Sofia Fernando and her minor
children the following sums of money:

a) Compensatory damages for his death P30,000.00

b) Moral damages P20,000.00

2. Ordering the defendant to pay to the plaintiffs David Garcia and Anita Garcia the following
sums of money:

a) Compensatory damages for his death P30,000.00

b) Moral damages P20,000.00

3. Ordering the defendant to pay to the plaintiff Rosalia Bertulano (sic) and her minor children the
following sums of money

a) Compensatory damages for his death P30,000.00

b) Moral damages P20,000.00

 4. Ordering the defendant to pay to the plaintiff Primitiva Fajardo and her minor children the
following sums of money:

a) Compensatory damages for his death P30,000.00

b) Moral damages P20,000.00

5. Ordering the defendant to pay to the plaintiffs Norma Liagoso, Nicolas Liagoso and Emeteria
Liagoso and her minor grandchildren the following sums of money:

a) Compensatory damages for his death P30,000.00

b) Moral damages P20,000.00

The death compensation is fixed at P30,000.00 in accordance with the rulings of the Supreme
Court starting with People vs. De la Fuente, Nos. L-63251-52, December 29, 1983, 126 SCRA
518 reiterated in the recent case of People vs. Nepomuceno, No. L-41412, May 27, 1985.
Attorney's fees in the amount of P10,000.00 for the handling of the case for the 5 victims is also
awarded.

No pronouncement as to costs.

SO ORDERED. (Rollo, pp. 33-34)

Both parties filed their separate motions for reconsideration. On January 11, 1990, the Court of Appeals rendered an
Amended Decision, the dispositive portion of which reads:

WHEREFORE, finding merit in the motion for reconsideration of the defendant-appellee Davao
City, the same is hereby GRANTED. The decision of this Court dated January 31, 1986 is
reversed and set aside and another one is hereby rendered dismissing the case. No pronouncement
as to costs.

SO ORDERED. (Rollo, p. 25)

Hence, this petition raising the following issues for resolution:

1. Is the respondent Davao City guilty of negligence in the case at bar?

2. If so, is such negligence the immediate and proximate cause of deaths of the victims hereof? (p.
72, Rollo)

Negligence has been defined as the failure to observe for the protection of the interests of another person that degree
of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury
(Corliss v. Manila Railroad Company, L-21291, March 28, 1969, 27 SCRA 674, 680). Under the law, a person who
by his omission causes damage to another, there being negligence, is obliged to pay for the damage done (Article
2176, New Civil Code). As to what would constitute a negligent act in a given situation, the case of Picart v. Smith
(37 Phil. 809, 813) provides Us the answer, to wit:

The test by which to determine the existence of negligence in a particular case may be stated as
follows: Did the defendant in doing the alleged negligent act use that reasonable care and caution
which an ordinarily prudent person would have used in the same situation? If not, then he is guilty
of negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary
 conduct of the discreet pater familias of the Roman law. The existence of negligence in a given
case is not determined by reference to the personal judgment of the actor in the situation before
him. The law considers what would be reckless, blameworthy, or negligent in the man of ordinary
intelligence and prudence and determines liability by that.

The question as to what would constitute the conduct of a prudent man in a given situation must of
course be always determined in the light of human experience and in view of the facts involved in
the particular case. Abstract speculation cannot here be of much value but this much can be
profitably said: Reasonable men govern their conduct by the circumstances which are before them
or known to them. They are not, and are not supposed to be, omniscient of the future. Hence they
can be expected to take care only when there is something before them to suggest or warn of
danger. Could a prudent man, in the case under consideration, foresee harm as a result of the
course actually pursued? If so, it was the duty of the actor to take precautions to guard against that
harm. Reasonable foresight of harm, followed by the ignoring of the suggestion born of this
provision, is always necessary before negligence can be held to exist. Stated in these terms, the
proper criterion for determining the existence of negligence in a given case is this: Conduct is said
to be negligent when a prudent man in the position of the tortfeasor would have foreseen that an
effect harmful to another was sufficiently probable warrant his foregoing the conduct or guarding
against its consequences. (emphasis supplied)

To be entitled to damages for an injury resulting from the negligence of another, a claimant must establish the
relation between the omission and the damage. He must prove under Article 2179 of the New Civil Code that the
defendant's negligence was the immediate and proximate cause of his injury. Proximate cause has been defined as
that cause, which, in natural and continuous sequence unbroken by any efficient intervening cause, produces the
injury, and without which the result would not have occurred (Vda. de Bataclan, et al. v. Medina, 102 Phil. 181,
186). Proof of such relation of cause and effect is not an arduous one if the claimant did not in any way contribute to
the negligence of the defendant. However, where the resulting injury was the product of the negligence of both
parties, there exists a difficulty to discern which acts shall be considered the proximate cause of the accident. In
Taylor v. Manila Electric Railroad and Light Co. (16 Phil. 8, 29-30), this Court set a guideline for a judicious
assessment of the situation:

Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered
immediate causes of the accident. The test is simple. Distinction must be made between the
accident and the injury, between the event itself, without which there could have been no accident,
and those acts of the victim not entering into it, independent of it, but contributing to his own
proper hurt. For instance, the cause of the accident under review was the displacement of the
crosspiece or the failure to replace it. This produced the event giving occasion for damages — that
is, the sinking of the track and the sliding of the iron rails. To this event, the act of the plaintiff in
walking by the side of the car did not contribute, although it was an element of the damage which
came to himself. Had the crosspiece been out of place wholly or partly through his act or omission
of duty, that would have been one of the determining causes of the event or accident, for which he
would have been responsible. Where he contributes to the principal occurrence, as one of its
determining factors, he can not recover. Where, in conjunction with the occurrence, he contributes
only to his own injury, he may recover the amount that the defendant responsible for the event
should pay for such injury, less a sum deemed a suitable equivalent for his own imprudence.
(emphasis Ours)

Applying all these established doctrines in the case at bar and after a careful scrutiny of the records, We find no
compelling reason to grant the petition. We affirm.

Petitioners fault the city government of Davao for failing to clean a septic tank for the period of 19 years resulting in
an accumulation of hydrogen sulfide gas which killed the laborers. They contend that such failure was compounded
by the fact that there was no warning sign of the existing danger and no efforts exerted by the public respondent to
neutralize or render harmless the effects of the toxic gas. They submit that the public respondent's gross negligence
was the proximate cause of the fatal incident.
We do not subscribe to this view. While it may be true that the public respondent has been remiss in its duty to re-
empty the septic tank annually, such negligence was not a continuing one. Upon learning from the report of the
market master about the need to clean the septic tank of the public toilet in Agdao Public Market, the public
respondent immediately responded by issuing invitations to bid for such service. Thereafter, it awarded the bid to the
lowest bidder, Mr. Feliciano Bascon (TSN, May 24, 1983, pp. 22-25). The public respondent, therefore, lost no time
in taking up remedial measures to meet the situation. It is likewise an undisputed fact that despite the public
respondent's failure to re-empty the septic tank since 1956, people in the market have been using the public toilet for
their personal necessities but have remained unscathed. The testimonies of Messrs. Danilo Garcia and David Secoja
(plaintiffs'-petitioners' witnesses) on this point are relevant, to wit:

Atty. Mojica, counsel for defendant Davao City:

xxx xxx xxx

The place where you live is right along the Agdao creek, is that correct?

DANILO GARCIA:

A Yes, sir.

Q And to be able to go to the market place, where you claim you have a stall,,
you have to pass on the septic tank?

A Yes, sir.

Q Day in and day out, you pass on top of the septic tank?

A Yes, sir.

Q Is it not a fact that everybody living along the creek passes on top of this
septic tank as they go out from the place and return to their place of residence, is
that correct?

And this septic tank, rather the whole of the septic tank, is covered by lead . . .?

A Yes, sir. there is cover.

Q And there were three (3) of these lead covering the septic tank?

A Yes, sir.

Q And this has always been closed?

A Yes, sir. (TSN, November 26, 1979, pp. 21-23, emphasis supplied)

ATTY. JOVER, counsel for the plaintiffs:

Q You said you are residing at Davao City, is it not?

DAVID SEJOYA:

A Yes, sir.
 Q How long have you been a resident of Agdao?

A Since 1953.

Q Where specifically in Agdao are you residing?

A At the Public Market.

Q Which part of the Agdao Public Market is your house located?

A Inside the market in front of the fish section.

Q Do you know where the Agdao septic tank is located?

A Yes, sir.

Q How far is that septic tank located from your house?

A Around thirty (30) meters.

Q Have you ever had a chance to use that septic tank (public toilet)?

A Yes, sir.

Q How many times, if you could remember?

A Many times, maybe more than 1,000 times.

Q Prior to November 22, 1975, have you ever used that septic tank (public
toilet)?

A Yes, sir.

Q How many times have you gone to that septic tank (public toilet) prior to that
date, November 22, 1975?

A Almost 1,000 times. (TSN, February 9, 1983, pp. 1-2)

The absence of any accident was due to the public respondent's compliance with the sanitary and plumbing
specifications in constructing the toilet and the septic tank (TSN, November 4, 1983, p. 51). Hence, the
toxic gas from the waste matter could not have leaked out because the septic tank was air-tight (TSN, ibid,
p. 49). The only indication that the septic tank in the case at bar was full and needed emptying was when
water came out from it (TSN, September 13, 1983, p. 41). Yet, even when the septic tank was full, there
was no report of any casualty of gas poisoning despite the presence of people living near it or passing on
top of it or using the public toilet for their personal necessities.

Petitioners made a lot of fuss over the lack of any ventilation pipe in the toilet to emphasize the negligence of the
city government and presented witnesses to attest on this lack. However, this strategy backfired on their faces. Their
witnesses were not expert witnesses. On the other hand, Engineer Demetrio Alindada of the city government
testified and demonstrated by drawings how the safety requirements like emission of gases in the construction of
both toilet and septic tank have been complied with. He stated that the ventilation pipe need not be constructed
outside the building as it could also be embodied in the hollow blocks as is usually done in residential buildings
(TSN, November 4, 1983, pp. 50-51). The petitioners submitted no competent evidence to corroborate their oral
testimonies or rebut the testimony given by Engr. Alindada.

We also do not agree with the petitioner's submission that warning signs of noxious gas should have been put up in
the toilet in addition to the signs of "MEN" and "WOMEN" already in place in that area. Toilets and septic tanks are
not nuisances per se as defined in Article 694 of the New Civil Code which would necessitate warning signs for the
protection of the public. While the construction of these public facilities demands utmost compliance with safety and
sanitary requirements, the putting up of warning signs is not one of those requirements. The testimony of Engr.
Alindada on this matter is elucidative:

ATTY. ALBAY:

Q Mr. Witness, you mentioned the several aspects of the approval of the
building permit which include the plans of an architect, senitary engineer and
electrical plans. All of these still pass your approval as building official, is that
correct?

DEMETRIO ALINDADA:

A Yes.

Q So there is the sanitary plan submitted to and will not be approved by you
unless the same is in conformance with the provisions of the building code or
sanitary requirements?

A Yes, for private building constructions.

Q How about public buildings?

A For public buildings, they are exempted for payment of building permits but
still they have to have a building permit.

Q But just the same, including the sanitary plans, it require your approval?

A Yes, it requires also.

Q Therefore, under the National Building Code, you are empowered not to
approve sanitary plans if they are not in conformity with the sanitary
requirements?

A Yes.

Q Now, in private or public buildings, do you see any warning signs in the
vicinity of septic tanks?

A There is no warning sign.

Q In residential buildings do you see any warning sign?

A There is none.

ATTY. AMPIG:
 We submit that the matter is irrelevant and immaterial, Your Honor.

ATTY. ALBAY:

But that is in consonance with their cross-examination, your Honor.

COURT:

Anyway it is already answered.

ATTY. ALBAY:

Q These warning signs, are these required under the preparation of the plans?

A It is not required.

Q I will just reiterate, Mr. Witness. In residences, for example like the residence
of Atty. Ampig or the residence of the honorable Judge, would you say that the
same principle of the septic tank, from the water closet to the vault, is being
followed?

A Yes.

ATTY. ALBAY:

That will be all, Your Honor. (TSN, December 6, 1983, pp. 62-63)

In view of this factual milieu, it would appear that an accident such as toxic gas leakage from the septic tank is
unlikely to happen unless one removes its covers. The accident in the case at bar occurred because the victims on
their own and without authority from the public respondent opened the septic tank. Considering the nature of the
task of emptying a septic tank especially one which has not been cleaned for years, an ordinarily prudent person
should undoubtedly be aware of the attendant risks. The victims are no exception; more so with Mr. Bertulano, an
old hand in this kind of service, who is presumed to know the hazards of the job. His failure, therefore, and that of
his men to take precautionary measures for their safety was the proximate cause of the accident. In Culion Ice, Fish
and Elect. Co., v. Phil. Motors Corporation (55 Phil. 129, 133), We held that when a person holds himself out as
being competent to do things requiring professional skill, he will be held liable for negligence if he fails to exhibit
the care and skill of one ordinarily skilled in the particular work which he attempts to do (emphasis Ours). The fatal
accident in this case would not have happened but for the victims' negligence. Thus, the appellate court was correct
to observe that:

. . . Could the victims have died if they did not open the septic tank which they were not in the first
place authorized to open? Who between the passive object (septic tank) and the active subject (the
victims herein) who, having no authority therefore, arrogated unto themselves, the task of opening
the septic tank which caused their own deaths should be responsible for such deaths. How could
the septic tank which has been in existence since the 1950's be the proximate cause of an accident
that occurred only on November 22, 1975? The stubborn fact remains that since 1956 up to
occurrence of the accident in 1975 no injury nor death was caused by the septic tank. The only
reasonable conclusion that could be drawn from the above is that the victims' death was caused by
their own negligence in opening the septic tank. . . . (Rollo, p. 23)

Petitioners further contend that the failure of the market master to supervise the area where the septic tank is located
is a reflection of the negligence of the public respondent.
We do not think so. The market master knew that work on the septic tank was still forthcoming. It must be
remembered that the bidding had just been conducted. Although the winning bidder was already known, the award
to him was still to be made by the Committee on Awards. Upon the other hand, the accident which befell the victims
who are not in any way connected with the winning bidder happened before the award could be given. Considering
that the case was yet no award to commence work on the septic tank, the duty of the market master or his security
guards to supervise the work could not have started (TSN, September 13, 1983, p. 40). Also, the victims could not
have been seen working in the area because the septic tank was hidden by a garbage storage which is more or less
ten (10) meters away from the comfort room itself (TSN, ibid, pp. 38-39). The surreptitious way in which the
victims did their job without clearance from the market master or any of the security guards goes against their good
faith. Even their relatives or family members did not know of their plan to clean the septic tank.

Finally, petitioners' insistence on the applicability of Article 24 of the New Civil Code cannot be sustained. Said law
states:

Art. 24. In all contractual, property or other relations, when one of the parties is at a disadvantage
on account of his moral dependence, ignorance, indigence, mental weakness, tender age or other
handicap, the courts must be vigilant for his protection.

We approve of the appellate court's ruling that "(w)hile one of the victims was invited to bid for said
project, he did not win the bid, therefore, there is a total absence of contractual relations between the
victims and the City Government of Davao City that could give rise to any contractual obligation, much
less, any liability on the part of Davao City." (Rollo, p. 24) The accident was indeed tragic and We
empathize with the petitioners. However, the herein circumstances lead Us to no other conclusion than that
the proximate and immediate cause of the death of the victims was due to their own negligence.
Consequently, the petitioners cannot demand damages from the public respondent.

ACCORDINGLY, the amended decision of the Court of Appeals dated January 11, 1990 is AFFIRMED. No costs.

SO ORDERED.

8.

FELICIDAD VILLANUEVA, FERNANDO CAISIP, ANTONIO LIANG, FELINA MIRANDA, RICARDO

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

CRUZ, J.:

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

This dispute goes back to November 7, 1961, when the municipal council of San Fernando adopted Resolution No.
218 authorizing some 24 members of the Fernandino United Merchants and Traders Association to construct
permanent stags and sell in the above-mentioned place. 2 The action was protested on November 10, 1961, in Civil
Case No. 2040, where the Court of First Instance of Pampanga, Branch 2, issued a writ of preliminary injunction
that prevented the defendants from constructing the said stalls until final resolution of the controversy. 3 On January
18, 1964, while this case was pending, the municipal council of San Fernando adopted Resolution G.R. No. 29,
which declared the subject area as "the parking place and as the public plaza of the municipality, 4 thereby impliedly
revoking Resolution No. 218, series of 1961. Four years later, on November 2, 1968, Judge Andres C. Aguilar
decided the aforesaid case and held that the land occupied by the petitioners, being public in nature, was beyond the
commerce of man and therefore could not be the subject of private occupancy. 5 The writ of preliminary injunction
was made permanent. 6

The decision was apparently not enforced, for the petitioners were not evicted from the place; in fact, according to
then they and the 128 other persons were in 1971 assigned specific areas or space allotments therein for which they
paid daily fees to the municipal government. 7 The problem appears to have festered for some more years under a
presumably uneasy truce among the protagonists, none of whom made any move, for some reason that does not
appear in the record. Then, on January 12, 1982, the Association of Concerned Citizens and Consumers of San
Fernando filed a petition for the immediate implementation of Resolution No. 29, to restore the subject property "to
its original and customary use as a public plaza. 8

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

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

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

There is no question that the place occupied by the petitioners and from which they are sought to be evicted is a
public plaza, as found by the trial court in Civil Case No. 2040. This finding was made after consideration of the
antecedent facts as especially established by the testimony of former San Fernando Mayor Rodolfo Hizon, who later
became governor of Pampanga, that the National Planning Commission had reserved the area for a public plaza as
early as 1951. This intention was reiterated in 1964 through the adoption of Resolution No. 29. 19

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

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

The parties belabor this argument needlessly.

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

Justice Torres said in that case:

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

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

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

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

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

Echoing Rojas, the decision said:

Appellants claim that they had obtained permit from the present of the City of Manila, to connect
booths Nos. 1 and 2, along the premises in question, and for the use of spaces where the booths
were constructed, they had paid and continued paying the corresponding rentals. Granting this
claim to be true, one should not entertain any doubt that such permit was not legal, because the
City of Manila does not have any power or authority at all to lease a portion of a public sidewalk.
The sidewalk in question, forming part of the public plaza of Sta. Cruz, could not be a proper
subject matter of the contract, as it was not within the commerce of man (Article 1347, new Civil
Code, and article 1271, old Civil Code). Any contract entered into by the City of Manila in
connection with the sidewalk, is ipso facto null and ultra vires. (Municipality of Cavite vs. Roxas,
et a1, 30 Phil. 603.) The sidewalk in question was intended for and was used by the public, in
going from one place to another. "The streets and public places of the city shall be kept free and
clear for the use of the public, and the sidewalks and crossings for the pedestrians, and the same
shall only be used or occupied for other purpose as provided by ordinance or regulation; ..." (Sec.
1119, Revised Ordinances of the City of Manila.) The booths in question served as fruit stands for
their owners and often, if not always, blocked the fire passage of pedestrians who had to take the
plaza itself which used to be clogged with vehicular traffic.

Exactly in point is Espiritu vs. Municipal Council of Pozorrubio, 25 where the Supreme Court declared:
 There is absolutely no question that the town plaza cannot be used for the construction of market
stalls, specially of residences, and that such structures constitute a nuisance subject to abatement
according to law. Town plazas are properties of public dominion, to be devoted to public use and
to be made available to the public in general They are outside the common of man and cannot be
disposed of or even leased by the municipality to private parties.

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

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

Neither can it be said that he acted whimsically in exercising his authority for it has been established that he directed
the demolition of the stalls only after, upon his instructions, the municipal attorney had conducted an investigation,
to look into the complaint filed by the Association of Concerned Citizens and Consumers of San Fernando. 26 There
is evidence that the petitioners were notified of this hearing, 27which they chose to disregard. Photographs of the
disputed area, 28 which does look congested and ugly, show that the complaint was valid and that the area really
needed to be cleared, as recommended by the municipal attorney.

The Court observes that even without such investigation and recommendation, the respondent mayor was justified in
ordering the area cleared on the strength alone of its status as a public plaza as declared by the judicial and
legislative authorities. In calling first for the investigation (which the petitioner saw fit to boycott), he was just
scrupulously paying deference to the requirements of due process, to remove an taint of arbitrariness in the action he
was caged upon to take.

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

The problems caused by the usurpation of the place by the petitioners are covered by the police power as delegated
to the municipality under the general welfare clause. 29 This authorizes the municipal council "to enact such
ordinances and make such regulations, not repugnant to law, as may be necessary to carry into effect and discharge
the powers and duties conferred upon it by law and such as shall seem necessary and proper to provide for the health
and safety, promote the prosperity, improve the morals, peace, good order, comfort, and convenience of the
municipality and the inhabitants thereof, and for the protection of property therein." This authority was validly
exercised in this casethrough the adoption of Resolution No. 29, series of 1964, by the municipal council of San
Fernando.
Even assuming a valid lease of the property in dispute, the resolution could have effectively terminated the
agreement for it is settled that the police power cannot be surrendered or bargained away through the medium of a
contract. 30 In fact, every contract affecting the public interest suffers a congenital infirmity in that it contains an
implied reservation of the police power as a postulate of the existing legal order. 31 This power can be activated at
any time to change the provisions of the contract, or even abrogate it entirely, for the promotion or protection of the
general welfare. Such an act will not militate against the impairment clause, which is subject to and limited by the
paramount police power. 32

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

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

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

SO ORDERED.

9.

HEIRS OF SANTIAGO PASTORAL and AGUSTIN BATO, petitioners-appellants,

vs.
THE SECRETARY OF PUBLIC WORKS and COMMUNICATIONS, THE CITY ENGINEER OF
DAGUPAN CITY and LEONARDO ESPANOL, respondents-appellees.

Paulino S. Cabugao for petitioners-appellants.

GUTIERREZ, JR., J.:

This case was certified to us by the Court of Appeals pursuant to Sections 17 and 21 of the Judiciary Act, as
amended in relation to Section 3, Rule 50 of the Rules of Court on the ground that the issues raised are pure
questions of law. The main issue centers on the authority of the Secretary of Public Works and Communications
under Republic Act 2056 to declare the construction of dikes encroaching into public navigable waters as a public
nuisance and to order their removal.

Sometime in October 1958, residents of Bacayao Norte, Caranglaan, and Mayombo Districts of Dagupan City led by
Leonardo Espanol filed complaints with the Secretary of Public Works and Communications (hereinafter referred to
as Secretary) denouncing the heirs of Santiago Pastoral and Agustin Bato for "alleged encroachments into the Tulao
River ... to the prejudice of public interest." The complaints were docketed as Cases Nos. RA-2056-26 and RA-
2056-37 respectively.
The Secretary designated the City Engineer of Dagupan City to conduct hearings in the two cases. All the parties
were notified of the hearings set for both cases.

Based on the evidence submitted by the parties, the Secretary rendered two separate decisions ordering the removal
of the encroachments complained of within thirty (30) days from receipt of notice. Thus, in Case No. RA-2056-26,
the heirs of Santiago Pastoral were ordered to remove the fishpond dikes indicated as Encroachments Nos. 1, 2, 3
and 4 in Exhibit "A" while in Case No. RA-2056-37, Agustin Bato was ordered to remove the fishpond dikes
indicated as Encroachment No. 5 in Exhibit "A." The Secretary ruled that encroachments Nos. 1, 2, 3, 4 and 5 in
Exhibit "A" had been illegally constructed within the channel of Tulao River. The Secretary declared the
encouragement croachments as public nuisances under Republic Act 2056.

Their motion for reconsideration having been denied by the Secretary, the respondents filed in the Court of First
Instance of Pangasinan a petition for certiorari and prohibition with a prayer for a writ of preliminary injunction
against the Secretary, the City Engineer of Dagupan City and Leonardo Espanol. The case was docketed as Civil
Case No. D-833.

The petitioners (respondents in the administrative cases) alleged "... that respondent City Engineer informed
petitioners that the 30-day period given them to remove the fishpond dikes has expired and that his office will
proceed to demolish the dikes on orders from the Secretary of Public Works and Communications; that they have
title over the alleged encroachments and a fishpond permit issued by the Department of Agriculture and Natural
Resources, through the Bureau of Fisheries, authorizing them to construct a fishpond on an adjoining parcel of their
property not covered by title." The petitioners sought the annulment of the decision of the Secretary of Public Works
and Communications on the ground of lack of jurisdiction and the issuance of a writ of prohibition commanding the
respondents to desist absolutely and perpetually from further molesting in any manner the petitioners and interfering
with the exercise of their rights over the lands in question.

In his answer, the Secretary invoked his authority to remove the encroachments under Republic Act No. 2056 and
stated that he had acted lawfully and justly and within the sound limits of his authority and jurisdiction thereunder.

The parties agreed to submit the case for judgment on the pleadings and were allowed by the lower court to submit
their respective memoranda.

The trial court then rendered a decision in favor of the petitioners-appellants prompting the Secretary to interpose an
appeal to the Court of Appeals.

The Secretary assigned a single assignment of error, to wit:

THE TRIAL COURT COMMITTED ERROR IN HAVING ANNULLED THE DECISIONS

RENDERED BY THE SECRETARY OF PUBLIC WORKS AND COMMUNICATIONS, IN
CASES JURISDICTION, AND IN PERMANENTLY ENJOINING SAID SECRETARY FROM
IMPLEMENTING THE ORDER TO REMOVE THE ENCROACMENTS PLACED BY THE
APPEALLEES ON THE TULAO RIVER. (At p. 17, Rollo)

In support of this lone assignment of error, the petitioner raised the following arguments:

1) The Secretary was duly vested with jurisdiction both over the parties and subject matter of the
controversy.

2) The Secretary duly conformed to the requirements of due process in the exercise of his
authority under Republic Act No. 2056.

3) The Secretary did not, as concluded by the court a quo, rule on the validity of appellees' titles
over the lots in question.
 4) The issuance of fishpond permits by the Bureau of Fisheries did not preclude the Secretary
from conducting due investigation and in ruling upon the same.

5) The Secretary's findings of fact are entitled to respect from the courts. (At pp. 17-18, Rollo)

As stated earlier, the main issue hinges on the authority of the Secretary of Public Works and Communications
under Republic Act 2056 to declare that the construction or building of dams, dikes or any other works which
encroach into any public navigable river, stream, coastal waters and any other navigable public waters or waterways
as well as the construction or building of dams, dikes or any other works in areas declared as communal fishing
grounds is prohibited and to order their removal as "public nuisances or as prohibited constructions."

The lower court concluded that the Secretary abused his authority under Republic Act No. 2056 on the following
points: (1) The Secretary passed judgment on the validity of the titles of the petitioners over Encroachments 3, 4 and
5 when he declared such titles as null and void; and (2) the dikes denominated as Encroachments Nos. 1 and 2 were
constructed by virtue of a permit legally issued in favor of the late Santiago Pastoral by the Bureau of Fisheries on
July 19, 1948 because the area was deemed fit by said Office of fishpond purposes, and the construction of such
dikes would not impede the flow of the river. The lower court opined that in constructing the dikes, the petitioners
were only exercising a right legally granted to them and that "they shall remain to enjoy the privilege until such time
that their permit shall have been cancelled."

The petition is impressed with merit.

The records belie the lower court's finding that the Secretary passed judgment on the titles of the lots in question.

In connection with Encroachments Nos. 3 and 4, the Heirs of Santiago Pastoral presented a certified true copy of
Original Certificate of Title No. 9 issued by the Register of Deeds of Dagupan City to show that the encroachments
are within their titled lands. The Secretary, however, stated in his decision:

As regards the last two encroachments, the evidence shows that the southern boundary thereof is
the original bank of the Tulao River. The properties in question, titled as they are, are clearly
within the bed of the river. Even the testimony of Aniceto Luis, a representative of the Bureau of
Lands in the investigation, shows without doubt, that the encroachments are within the river bed as
may be gleaned from the following:

Q As it appears in the record, title was granted to Santiago Pastoral on this

alleged encroachment No. 3 and 4 which falls squarely on the Tulao River and
during the ocular inspection by the undersigned, the fact became evident that the
river is highly navigable. Now, what explanation can you make as to why title
was issued over a portion of a river, public river at that, which is highly
navigable?

A So far, our record does not show that it is a navigable river, but it is just stated
that "the area applied for is a part of the Tulao River and therefore it is covered
by water." (From the report of the Deputy Public Land Inspector E. Ventura
dated March, 1954 in connection with the Sales application of Santiago
Pastoral.)

Q So in the report, it was stated that the land applied for by Santiago Pastoral is
entirely covered by water and part of the river?

A Yes, sir,
 The propriety of the title over the last two encroachments is beyond the jurisdiction of this Office
to inquire into, much less question, although it seems worth looking into by the proper authorities.
Be that as it may, the fact remains that the dikes and other works therein are encroachments into
the Tulao River and, as such, are public nuisances within the contemplation of Republic Act No.
2056. (pp. 1-2, Decision in RA-2056-26)

Petitioner Agustin Bato also submitted a verified copy of the Original Certificate of Title No. 2 to show that
encroachment No. 5 was privately owned.

Anent this argument, the Secretary said:

xxx xxx xxx

... It has been found, however, that the land in question, although titled, is within the bed of the
Tulao River. Even the representative of the Bureau of Lands bolstered such finding as may be
gleaned from the following portion of his testimony:

Q But you stated that the technical description falls squarely to the Tulao River.
What I am after is the condition of the land when the application was made. Do
you have that in your records? "

A Yes sir.

Q Now, if I show the certificate of title that covered the portion of this land, will
you agree with me that the technical description is the same as that appearing in
your record?

A Yes, they are the same.

Q Mr. Luis, we have the technical description appearing in the certificate of title
which you admitted to be the same as appearing in your record plotted, and it
appears that the same land covered by the description falls squarely on the river?
Is it still on the side of the river or in the river itself? I am referring to the
encroachment No. 5 by Agustin Bato.

A No, if this encroachment made by Agustin Bato is the same land as described
in the technical description from the title, then it is within the river."

Moreover, Section 39 of Act No. 496, in defining the scope and efficacy of a certificate of title
under the Torrens System, established some exceptions which the force of said title does not reach
or affect. Among them are properties of the public domain. Since the portion appropriated is of
public dominion, registration under Act No. 496 did not make the possessor a true owner thereof.
(Celso Ledesma v. The Municipality of Iloilo, Concepcion Lopez, Maximo M. Kalaw and wife,
and Julia Ledesma, defendants, 49 Phil. 769). (pp. 1-2, Decision in RA-2056-37)

In effect, the Secretary passed judgment only to the extent that, although the encroachments were inside titled
properties, they are within the bed of a river. With this factual finding, he declared the encroachments, converted
into fishponds within the Tulao River, as prohibited and ordered their removal pursuant to his authority under
Republic Act 2056. He never declared that the titles of the petitioners over the lots in question were null and void.

The Secretary's authority to determine questions of fact such as the existence of a river even inside titled properties
was recognized in the cases of Lovina v. Moreno, (9 SCRA 557) and Taleon vs. Secretary of Public Works and
Communications (20 SCRA 69). We stated that the fact-finding power of the Secretary of Public Works and
Communications is merely "incidental to his duty to clear all navigable streams of unauthorized constructions and,
hence its grant did not constitute an unlawful delegation of judicial power. ... that although the titles were silent as to
the existence of any stream inside the property, that did not confer a right to the stream, it being of a public nature
and not subject to private appropriation, even by prescription." In the instant cases, the residents along the Tulao
River complained about obstructions on the river. From a width of 70 to 105 meters, the river had been reduced to a
width of only 10 to 15 meters. The river was navigable and even at low-tide was two to three meters deep.

As regards the lower court's finding that the dikes designated as Encroachments Nos. 1 and 2 were constructed
under the petitioners' Fishpond Permit issued by the Bureau of Fisheries in 1948 and, therefore, must be respected,
the Secretary counters that such issuance of fishpond permit did not preclude him from conducting due investigation
pursuant to his authority under Republic Act 2056.

We agree.

Section 1 of Republic Act 2056 is explicit in that "Any provision or provisions of law to the contrary
notwithstanding, the construction or building of dams, dikes ... which encroaches into any public navigable river,
stream, coastal waters and any other navigable public waters or waterways ... shall be ordered removed as public
nuisance or as prohibited construction as herein provided ... The record shows that the petitioners' fishpond permit
was issued in 1948 while the Act took effect on June 3, 1958. Therefore, the Secretary's more specific authority to
remove dikes constructed in fishponds whenever they obstruct or impede the free passage of any navigable river or
stream or would cause inundation of agricultural areas (Section 2, Republic Act 2056) takes precedence. Moreover,
the power of the Secretary of Public Works to investigate and clear public streams from unauthorized
encroachments and obstructions was granted as early as Act 3708 of the old Philippine Legislature and has been
upheld by this Court in the cases of Palanca v. Commonwealth (69 Phil. 449) and Meneses v. Commonwealth (69
Phil. 647). The same rule was applied in Lovina v. Moreno, (supra) Santos etc., et al. v. Secretary of Public Works
and Communications (19 SCRA 637).

All in all, we find no grave abuse of discretion or an illegal exercise of authority on the part of the Secretary of
Public Works and Communications in ordering the removal of the encroachments designated as Nos. 1, 2, 3, 4 and 5
of Exhibit "A".

The rules of due process were observed in the conduct of investigation in the two cases. The parties concerned were
all notified and hearings of the two cases were conducted by the Secretary through the City Engineer of Dagupan
City. All parties were given opportunity to present evidence to prove their claims after which the Secretary rendered
separate decisions pursuant to Republic Act 2056.

The factual findings of the Secretary are substantiated by evidence in the administrative records. In the absence of
any illegality, error of law, fraud or imposition, none of which were proved by the petitioners in the instant case,
said findings should be respected. (Lovina v. Moreno, supra; Santos, etc., et al. v. Secretary of Public Works and
Communications, supra; See also Borja v. Moreno, 11 SCRA 568; Taleon v. Secretary of Public Works and
Communications, 20 SCRA 69).

WHEREFORE, the instant appeal is GRANTED. The questioned decision of the Court of First Instance of
Pangasinan is REVERSED and SET ASIDE. The decisions of the then Secretary of Public Works and
Communications in Cases No. RA 2056-26 and No. RA-2056-37 are REINSTATED.

SO ORDERED.

10.

[G.R. No. 71169. August 25, 1989.]

 JOSE D. SANGALANG and LUTGARDA D. SANGALANG, Petitioners, FELIX C. GASTON and
DOLORES R. GASTON, JOSE V. BRIONES and ALICIA R. BRIONES, and BEL-AIR VILLAGE
ASSOCIATION, INC., intervenors-petitioners, v. INTERMEDIATE APPELLATE COURT and AYALA
CORPORATION, Respondents.

[G.R. No. 74376. August 25, 1989.]

BEL-AIR VILLAGE ASSOCIATION, INC., Petitioner, v. THE INTERMEDIATE APPELLATE COURT,

ROSARIO DE JESUS TENORIO, and CECILIA GONZALVES, Respondents.

[G.R. No. 76394. August 25, 1989.]

BEL-AIR VILLAGE ASSOCIATION, INC., Petitioner, v. THE COURT OF APPEALS, and EDUARDO and
BUENA ROMUALDEZ, Respondents.

[G.R. No. 78182. August 25, 1989.]

BEL-AIR VILLAGE ASSOCIATION, INC., Petitioner, v. COURT OF APPEALS, DOLORES FILLEY and
J. ROMERO & ASSOCIATES, Respondents.

[G.R. No. 82281. August 25, 1989.]

BEL-AIR VILLAGE ASSOCIATION, INC., Petitioner, v. COURT OF APPEALS, VIOLETA MONCAL,

and MAJAL DEVELOPMENT CORPORATION, Respondents.

[G.R. No. 60727. August 25, 1989.]

NEMESIO I. YABUT, Municipal Mayor of Makati, ARTURO R. GABUNA, Secretary to the Mayor for
Administration, Makati; JOSEFO S. LINGAD, Acting Municipal Engineer; NELSON ERASGA of the
Municipal Engineer’s Office, Makati; and RUPERTO ACLE; Station Commander, Southern Police District,
Makati, Petitioners, v. THE COURT OF APPEALS and BEL-AIR VILLAGE ASSOCIATION, INC.,
Respondents.

J. Cesar Sangco and Renato L. Dela Fuente for G.R. No. 71169.

Funk & Associates for G.R. Nos. 74376, 76394, 78182 & 82281.

Sergio L. Guadiz, Gruba, Tanlimco, Lamson & Apuhin Law Office; Tee Tomas & Associates and Castillo,
Laman, Tan & Associates for G.R. Nos. 74376, 76394, 78182 & 82281.

DECISION

SARMIENTO, J.:

Before the Court are: (1) two motions for reconsideration (G.R. No. 71169) of our Decision, promulgated on
December 22, 1988, the first one having been filed by Atty. J. Cezar Sangco on behalf of the spouses Jose and
Lutgarda Sangalang, and the second, by Atty. Raul Sison, counsel for Bel-Air Village Association (BAVA); and (2)
a motion for reconsideration and/or motion for clarification filed by Atty. Richard Funk (G.R. Nos. 74376, 76394,
78182, and 82281) of the said Decision.

The motion for reconsideration (G.R. No. 71169), filed by the Sangalangs, is anchored on two grounds: (1) that
contrary to our decision, Jupiter Street is for the exclusive use of Bel-Air Village residents; and (b) that the Ayala
Corporation did contrive to acquire membership at the Bel-Air Village Association (BAVA) purposely to bargain
for access to Jupiter Street by the general public. Subsequently, BAVA informed the Court that it was adopting the
Sangalangs’ motion for reconsideration. The motion for reconsideration (in G.R. Nos. 74376, 76394, 78182, and
82281) raises more or less the same questions and asks furthermore that we delete the award of damages granted by
the Court of Appeals.

The Court: (1) DENIES the motions filed by both the Sangalangs and BAVA with finality, no new arguments
having been presented to warrant reconsideration, and (2) DENIES Atty. Richard Funk’s own motion for the same
reason, with the further word that the grant of attorney’s fees has been deemed to be just and proper under Article
2208, par. II, of the Civil Code.

II

The lone issue in G.R. No. 67027 is whether or not the Mayor of Makati could have validly opened Jupiter and Orbit
Streets to vehicular traffic. The facts, as stated in the assailed decision of the respondent court, in CA-G.R. No.
11803-SP, entitled, "Bel-Air Village Association, Inc., Petitioner, v. Hon. Celso L. Magsino, Presiding Judge of the
Court of First Instance of Rizal, Branch XX, Pasig, Metro Manila; Mayor Nemesio Yabut, Municipal Mayor of
Makati, Metro Manila, Arturo R. Gabuna, Secretary to the Mayor for Administration, Makati, Josefo S. Lingad,
Acting Municipal Engineer, Nelson Erasga, of the Municipal Engineer’s Office, Makati; and Ruperto Acle, Station
Commander, Southern Police District, Makati, Respondents," are as follows:chanrob1es virtual 1aw library

In its chronological sequence, the petition avers as follows: On October 24, 1979, petitioner instituted a petition for
prohibition and damages with preliminary injunction with the respondent Court docketed as Civil Case No. 34948.
On October 25, 1979, the respondent court issued an order directing respondents to answer and denying the issuance
of a temporary restraining order. Petitioner filed an urgent motion for reconsideration of the denial of its prayer for
the issuance of a temporary restraining order, adding as new ground the continuation of the commission of acts of
dispossession by the respondents. The said urgent motion was denied.

On November 6, 1979, the parties were directed to submit their affidavits and counter-affidavits as well as
memoranda as basis for resolving the application for preliminary injunction. In due time, the parties complied. On
December 11, 1979, respondents filed their answer to the petition.

On March 4, 1980, the respondent Court denied the application for preliminary injunction. On November 14, 1980,
an order was issued denying the motion for reconsideration.

It is alleged by petitioner that by its orders of March 4, 1980 and November 14, 1980, the respondent Court has
unlawfully deprived the petitioner of its right to due process to which it is entitled under the Constitution, and that
respondents’ acts are tantamount to grave abuse of discretion and in excess of jurisdiction.

In their comment, respondents allege that prior to January, 1977, upon the instructions of respondent Mayor
Nemesio T. Yabut of Makati, Metro Manila, studies were made by the other respondents on the feasibility of
opening streets in Bel-Air Village calculated to alleviate traffic congestions along the public streets adjacent to Bel-
Air Village. The studies revealed that the subdivision plan of Bel-Air Village was approved by the Court of First
Instance of Rizal on condition, among others, that its major thoroughfares connecting to public streets and highways
shall be opened to public traffic. Accordingly, it was deemed necessary by the Municipality of Makati in the interest
of the general public to open to traffic Amapola, Mercedes, Zodiac, Jupiter, Neptune, Orbit and Paseo de Roxas
streets. On January 28, 1977, a meeting was held between representatives of the Municipality of Makati and
petitioner.

At this meeting, respondents claim that the representatives of petitioner, particularly Rufino R. Santos, president of
petitioner, had agreed to the opening of Bel-Air Village streets. Regarding Jupiter Street, the Municipality opened it
because public welfare demanded its opening which allegation the petitioner never questioned. With respect to Orbit
Street, whose opening was temporarily suspended until the flood control project from Buendia Extension up to the
mouth of the Pasig River, was about to be completed, it was opened only after another meeting attended by Rufino
R. Santos who agreed to the opening of the street from J.P. Rizal Avenue up to Imelda Avenue and later up to
Jupiter Street, subject to certain conditions.

To bolster their side, respondents cite: specifically, Section 44 of the Land Registration Act No. 496, as amended,
the deeds of donation of Jupiter and Orbit streets executed by and between the Ayala Corporation and the petitioner,
Presidential Decrees No. 957, Secs. 22 and 29 thereof, and No. 1216, Sec. 2 thereof, and Municipal Ordinance No.
17 of the Municipal Government of Makati, Metro Manila, as amended by Resolution No. 139, dated November 21,
1948, and contend that the opening of the two (2) streets was demanded by public necessity and in the exercise of its
police powers, and, ultimately on the argument that petitioner has not shown a clear legal right to the writ of
preliminary injunction.

With leave of court, petitioner filed a reply to the respondents’ comment. They assert that the streets mentioned in
the comment, other than Jupiter and Orbit streets, have always been kept open voluntarily by the Association, that
Rufino R. Santos, president of petitioner, has never agreed on the opening of Jupiter and Orbit streets, and that the
Torrens titles covering these streets do not contain similar conditions as those titles for the other street lots.

Petitioner relies on its ownership of the streets of which it should not (be) deprived without due process of law, and
without just compensation, Article 539 of the Civil Code, an existing Ordinance of the Metro Manila Commission
No. 2, Sec. 14 thereof, and the concurrence of all the requisites for the issuance of a writ of preliminary injunction. 1

The Court of Appeals found that the certificates of title (Transfer Certificates of Titles Nos. S-76020, S-76021, S-
76022, S-76024, and S-76055, for Jupiter Street, and 206824, for Orbit Street) do not contain the restrictions
imposed by Section 44 of Act No. 496, now, Section 50 of Presidential Decree No. 1529, for which reason, and so
the Appellate Court held, the Mayor of Makati did not have the legal right to open them up to traffic.

In Sangalang v. Intermediate Appellate Court, 2 we held that Ayala Corporation, the former owner of the Bel-Air
subdivision, can not be held responsible for the opening of Jupiter Street, among other things, because it was the
Mayor of Makati who ordered such an opening. 3 The issue herein, as we indicated, is whether or not the Mayor
could legally have done it. With respect, specifically, to Jupiter Street, Sangalang avers:chanrobles lawlibrary :
rednad

Among other things, there is a recognition under both Ordinances Nos. 81 and 81-01 that Jupiter Street lies as the
boundary between Bel-Air Village and Ayala Corporation’s commercial section. And since 1957, it had been
considered as a boundary — not as a part of either the residential or commercial zones of Ayala Corporation’s real
estate development projects. Thus, the Bel-Air Village Association’s articles of incorporation state that Bel-Air
Village is "bounded on the NE., from Amapola St., to de los Santos Ave., by Estrella St., on the SE., from Estrella
St., to Pedestrian Lane, by E. De los Santos Ave., on the SW., from Pedestrian Lane to Reposo St., by Jupiter
Street.." Hence, it cannot be said to have been "for the exclusive benefit" of Bel-Air Village residents. 4

Sangalang also had occasion to invoke Ortigas & Co., Limited Partnership v. Feati Bank and Trust Co. 5 We
reiterate Ortigas herein:chanrob1es virtual 1aw library

x x x

2. With regard to the contention that said resolution cannot nullify the contractual obligations assumed by the
defendant-appellee — referring to the restrictions incorporated in the deeds of sale and later in the corresponding
Transfer Certificates of Title issued to defendant-appellee — it should be stressed, that while non-impairment of
contracts is constitutionally guaranteed, the rule is not absolute, since it has to be reconciled with the legitimate
exercise of police power, i.e., "the power to prescribe regulations to promote the health, morals, peace, education,
good order or safety and general welfare of the people." Invariably described as "the most essential, insistent, and
illimitable of powers" and "in a sense, the greatest and most powerful attribute of government," the exercise of the
power may be judicially inquired into and corrected only if it is capricious, whimsical, unjust or unreasonable, there
having been a denial of due process or a violation of any other applicable constitutional guarantee. As this Court
held through Justice Jose P. Bengzon in Philippine Long Distance Company v. City of Davao, et. al., police power
"is elastic and must be responsive to various social conditions; it is not confined within narrow circumscriptions of
precedents resting on past condition; it must follow the legal progress of a democratic way of life." We were even
more emphatic in Vda. de Genuino v. The Court of Agrarian Relations, Et Al., when We declared: ‘We do not see
why public welfare when clashing with the individual right to property should not be made to prevail through the
state’s exercise of its police power."cralaw virtua1aw library

Resolution No. 27, s-1960 declaring the western part of Highway 54, now E. de los Santos Avenue (EDSA, for
short) from Shaw Boulevard to the Pasig River as an industrial and commercial zone, was obviously passed by the
Municipal Council of Mandaluyong, Rizal in the exercise of police power to safeguard or promote the health, safety,
peace, good order and general welfare of the people in the locality. Judicial notice may be taken of the conditions
prevailing in the area, especially where Lots Nos. 5 and 6 are located. The lots themselves not only front the
highway; industrial and commercial complexes have flourished about the place. EDSA, a main traffic artery which
runs through several cities and municipalities in the Metro Manila area, supports an endless stream of traffic and the
resulting activity, noise and pollution are hardly conducive to the health, safety or welfare of the residents in its
route. Having been expressly granted the power to adopt zoning and subdivision ordinances or regulations, the
municipality of Mandaluyong, through its Municipal Council, was reasonably, if not perfectly, justified under the
circumstances, in passing the subject resolution. 6

The Bel-Air Village Association can not therefore rightfully complain that His Honor, the Mayor of Makati, in
opening up Jupiter Street, had acted arbitrarily.

In connection with Orbit Street, the Court reaches the same conclusion. We repudiate, therefore, that part of the
assailed decision of the Court of Appeals insofar as it held that the condition imposed by Section 44, of Act No. 496,
now Section 50, of Presidential Decree No. 1529, 7 that "no portion of any street or passageway .. shall be closed or
otherwise disposed of by the registered owner without approval of the court of first instance (being first) had ." 8
does riot apply for lack of an annotation of such a condition on the certificate of title (Transfer Certificate of Title
No. 206824). To begin with, Transfer Certificate of Title No. 206824 does contain the annotation in
question:chanrob1es virtual 1aw library

. . . subject to such of the encumbrances mentioned in Section 39 of said Act as may be subsisting, and the condition
that the above lots are subject to the conditions imposed by Republic Act 440. 9

Furthermore, the very Deed of Donation executed by the Ayala Corporation 10 covering Jupiter and Orbit Streets,
amongst others, and so we found in Sangalang, effectively required both passageways open to the general public.
We quote:chanrob1es virtual 1aw library

The alleged undertaking, finally, by Ayala in the deed of donation (over Jupiter Street) to leave Jupiter Street for the
private use of Bel-Air residents is belied by the very provisions of the deed. We quote:chanrob1es virtual 1aw
library

x x x

"IV. That the offer made by the DONOR had been accepted by the DONEE subject to the condition that the
property will be used as a street for the use of the members of the DONEE, their families, personnel, guests,
domestic help and, under certain reasonable conditions and restrictions, by the general public, and in the event that
said lots or parts thereof cease to be used as such, ownership thereof shall automatically revert to the DONOR. The
DONEE shall always have Reposo Street, Makati Avenue, and Paseo de Roxas open for the use of the general
public. It is also understood that the DONOR SHALL continue the maintenance of the street at its expense for a
period of three years from date hereof. (Deed of Donation, p. 6, Exh. 7).

x x x

The donation on the contrary, gave the general public equal right to it. 11

As regards Orbit Street, it was stipulated:chanrob1es virtual 1aw library

1. That the property donated shall be used and maintained as "private roads or streets for the use of the members of
the Donee, their families, personnel, domestic helps and under certain reasonable conditions and restrictions, by the
general public;

2. In the event that the properties covered by this donation are no longer used as such, the same shall automatically
revert to the Donor; and

3. That the Donee shall always have Reposo Street open for the use of the general public and shall transfer its
present gate barrier located in the intersection of Orbit and Jupiter to the southern boundary of street Lot 8 of the
Plan (LRC) Psd-77820." 12

As we asserted in Sangalang, the opening of Jupiter Street was warranted by the demands of the common good, in
terms of traffic decongestion and public convenience. 13 We also uphold the opening of Orbit Street for the same
rationale.

There is no merit in BAVA’s claims that the demolition of the gates at Orbit and Jupiter Streets amounts to
deprivation of property without due process of law or expropriation without just compensation. 14 There is no
taking of property involved here. The act of the Mayor now challenged is, rather, in the concept of police power. In
the case of Philippine Association of Service Exporters, Inc. v. Drilon, 15 we said:cralawnad

The concept of police power is well-established in this jurisdiction. It has been defined as the "state authority to
enact legislation that may interfere with personal liberty or property in order to promote the general welfare." As
defined, it consists of (1) an imposition of restraint upon liberty or property, (2) in order to foster the common good.
It is not capable of an exact definition but has been, purposely, veiled in general terms to underscore its all-
comprehensive embrace.

"Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future where it could be done
provides enough room for an efficient and flexible response to conditions and circumstances thus assuring the
greatest benefits."cralaw virtua1aw library

It finds no specific Constitutional grant for the plain reason that it does not owe its origin to the Charter. Along with
the taxing power and eminent domain, it is inborn in the very fact of statehood and sovereignty. It is a fundamental
attribute of government that has enabled it to perform the most vital functions of governance. Marshall, to whom the
expression has been credited, refers to it succinctly as the plenary power of the State "to govern its citizens."cralaw
virtua1aw library

"The police power of the State . . . is a power coextensive with self-protection, and it is not inaptly termed the ‘law
of overwhelming necessity.’ It may be said to be that inherent and plenary power in the State which enables it to
prohibit all things hurtful to the comfort, safety, and welfare of society."cralaw virtua1aw library

It constitutes an implied limitation on the Bill of Rights. According to Fernando, it is "rooted in the conception that
men in organizing the state and imposing upon its government limitations to safeguard constitutional rights did not
intend thereby to enable an individual citizen or a group of citizens to obstruct unreasonably the enactment of such
salutary measures calculated to ensure communal peace, safety, good order, and welfare." Significantly, the Bill of
Rights itself does not purport to be an absolute guaranty of individual rights and liberties "Even liberty itself, the
greatest of all rights, is not unrestricted license to act accordingly to one’s will." It is subject to the far more
overriding demands and requirements of the greater number. 16

Unlike the power of eminent domain, police power is exercised without provision for just compensation:chanrob1es
virtual 1aw library

Art. 436. When any property is condemned or seized by competent authority in the interest of health, safety or
security, the owner thereof shall not be entitled to compensation, unless he can show that such condemnation or
seizure is unjustified. 17
However, it may not be done arbitrarily or unreasonably. 18 But the burden of showing that it is unjustified lies on
the aggrieved party. 19

Our considered opinion is that BAVA has failed to show that the opening up of Orbit Street was unjustified, or that
the Mayor acted unreasonably. The fact that it has led to the loss of privacy of BAVA residents is no argument
against the Municipality’s effort to ease vehicular traffic in Makati. Certainly, the duty of a local executive is to take
care of the needs of the greater number, in many cases, at the expense of the minority.

The next question is whether or not the Mayor, by himself, is vested with the power to order the demolition so
questioned, without the backing of a proper ordinance. On this score, the Mayor submitted in evidence Municipal
Ordinance No. 17, as amended by Resolution No. 139, dated November 21, 1948, 20 requiring a Mayor’s permit to
erect construction anywhere in Makati. The respondent court rejected, however, the Mayor’s reliance on the
Ordinance. We quote:chanrob1es virtual 1aw library

Respondents also invoke Municipal Ordinance No. 17, as amended by Resolution No. 139, dated November 21,
1948, requiring a Mayor’s permit before any construction of any kind shall be built, erected or constructed in any
place in the Municipality, and empowering the corresponding authorities especially the Mayor to remove and
demolish any such illegal construction. For a long time the gates and fences removed by agents of respondents have
been in the sites where they were removed. We fail to comprehend why the respondents did not invoke the
Ordinance much earlier. They cannot pretend ignorance of a condition or situation which was never concealed from
respondents and their agents. At any rate, the Torrens titles of these street lots which bore no restrictions whatsoever
was authority for its owner to close them. 21

Quite to the contrary, the Court is convinced that Ordinance No. 17 is a valid justification for the questioned act of
the Mayor. The fact that some time had elapsed before the Mayor acted, can not render the ordinance uneforceable
or void. At any rate, the gate, the destruction of which opened Orbit Street, has the character of a public nuisance, 22
in the sense that it "hinders or impairs the use of property," 23 which the Civil Code disposes of as
follows:chanrob1es virtual 1aw library

Art. 699. The remedies against a public nuisance are:chanrob1es virtual 1aw library

(1) A prosecution under the Penal Code or any local ordinance; or

(2) A civil action; or

(3) Abatement, without judicial proceedings. 24

In The Homeowners Associations of El Deposito, Barrio Corazon de Jesus, San Juan, Rizal v. Lood, 25 we
held:chanrob1es virtual 1aw library

At any rate, the decisive point is that independently of the said ordinance, petitioners’ constructions which have been
duly found to be public nuisances per se (without provision for accumulation or disposal of waste matters and
constructed without building permits contiguously to and therefore liable to pollute one of the main water pipelines
which supplies potable water to the Greater Manila area) may be abated without judicial proceedings under our Civil
Code. 26

In addition, under Article 701 of the Code, summary abatement may be carried out by the Mayor
himself.chanrobles.com : virtual law library

Although estoppel is a valid defense against abatement of nuisance, 27 judicially or summarily, the Mayor is not
being condemned for estoppel here, but, rather, for inaction. Under, however, the Civil Code:chanrob1es virtual 1aw
library

Art. 698. Lapse of time cannot legalize any nuisance, whether public or private. 28

Other than BAVA’s claims that the opening of Orbit Street led to the loss of privacy of BAVA residents, there is no
showing that the Mayor, in carrying out the demolition of the Orbit gate, had acted in disregard of due process or, as
the respondent court would put it, with a "show of arrogance." 29 As we said, the gate in question was a nuisance,
which could have been legally abated by summary means. The fact that it was accomplished summarily does not
lend to it a "show of arrogance" because, precisely, a summary method is allowed by law. In any event, there is a
showing that the Mayor notified BAVA that Orbit (and Jupiter) Streets would be opened up. 30 The Court finds that
such a notice is compliance enough with due process. 31

What has been left unsaid is that the nation today is witnessing profound changes occurring in its midst. A decade
ago, we were a people of forty or so million. Today, the number is knocking on sixty million. We are reaping the
cost that population explosion carries with it. Housing the homeless has been one of the first casualties. And so has
been the transport system. Giving the homeless homes and bringing them there safely is a formidable burden and the
task of the hour. Parochial concerns can not be an impediment to the greater needs of the greatest number.

WHEREFORE, the petition in G.R. No. 60727 is GRANTED; the motions for reconsiderations in G.R. Nos. 71169,
74376, 76394, 78182, and 82281 are DENIED with FINALITY.

IT IS SO ORDERED.

11.

FRANCISCO U. DACANAY, petitioner,

vs.
MAYOR MACARIO ASISTIO, JR., CITY ENGR. LUCIANO SARNE, JR. of Kalookan City, Metro Manila,
MILA PASTRANA AND/OR RODOLFO TEOFE, STALLHOLDERS AND REPRESENTING CO-
STALLHOLDERS, respondents.

David D. Advincula, Jr. for petitioner.

Juan P. Banaga for private respondents.

GRIÑO-AQUINO, J.:

May public streets or thoroughfares be leased or licensed to market stallholders by virtue of a city ordinance or
resolution of the Metro Manila Commission? This issue is posed by the petitioner, an aggrieved Caloocan City
resident who filed a special civil action of mandamus against the incumbent city mayor and city engineer, to compel
these city officials to remove the market stalls from certain city streets which the aforementioned city officials have
designated as flea markets, and the private respondents (stallholders) to vacate the streets.

On January 5, 1979, MMC Ordinance No. 79-02 was enacted by the Metropolitan Manila Commission, designating
certain city and municipal streets, roads and open spaces as sites for flea markets. Pursuant, thereto, the Caloocan
City mayor opened up seven (7) flea markets in that city. One of those streets was the "Heroes del '96" where the
petitioner lives. Upon application of vendors Rodolfo Teope, Mila Pastrana, Carmen Barbosa, Merle Castillo,
Bienvenido Menes, Nancy Bugarin, Jose Manuel, Crisaldo Paguirigan, Alejandro Castron, Ruben Araneta, Juanita
and Rafael Malibaran, and others, the respondents city mayor and city engineer, issued them licenses to conduct
vending activities on said street.

In 1987, Antonio Martinez, as OIC city mayor of Caloocan City, caused the demolition of the market stalls on
Heroes del '96, V. Gozon and Gonzales streets. To stop Mayor Martinez' efforts to clear the city streets, Rodolfo
Teope, Mila Pastrana and other stallowners filed an action for prohibition against the City of Caloocan, the OIC City
Mayor and the City Engineer and/or their deputies (Civil Case No. C-12921) in the Regional Trial Court of
Caloocan City, Branch 122, praying the court to issue a writ of preliminary injunction ordering these city officials to
discontinue the demolition of their stalls during the pendency of the action.

The court issued the writ prayed for. However, on December 20, 1987, it dismissed the petition and lifted the writ of
preliminary injunction which it had earlier issued. The trial court observed that:

A perusal of Ordinance 2, series of 1979 of the Metropolitan Manila Commission will show on the
title itself that it is an ordinance ––

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, subject to the approval of the
Metropolitan Manila Commission, and for other purposes

which is further amplified in Section 2 of the said ordinance, quoted hereunder:

Sec. 2. The streets, roads and open spaces to be used as sites for flea markets (tiangge) or vending
areas; the design, measurement or specification of the structures, equipment and apparatuses to be
used or put up; the allowable distances; the days and time allowed for the conduct of the
businesses and/or activities herein authorized; the rates or fees or charges to be imposed, levied
and collected; the kinds of merchandise, goods and commodities sold and services rendered; and
other matters and activities related to the establishment, maintenance and management and
operation of flea markets and vending areas, shall be determined and prescribed by the mayors of
the cities and municipalities in the Metropolitan Manila where the same are located, subject to the
approval of the Metropolitan Manila Commission and consistent with the guidelines hereby
prescribed.

Further, it is so provided in the guidelines under the said Ordinance No. 2 of the MMC that —

Sec. 6. In the establishment, operation, maintenance and management of flea markets and vending
areas, the following guidelines, among others, shall be observed:

xxx xxx xxx

(m) That the permittee shall remove the equipment, facilities and other appurtenances used by him
in the conduct of his business after the close or termination of business hours. (Emphasis ours; pp.
15-16, Rollo.)

The trial court found that Heroes del '96, Gozon and Gonzales streets are of public dominion, hence, outside the
commerce of man:

The Heroes del '96 street, V. Gozon street and Gonzales street, being of public dominion must,
therefore, be outside of the commerce of man. Considering the nature of the subject premises, the
following jurisprudence co/principles are applicable on the matter:

1) They cannot be alienated or leased or otherwise be the subject matter of

contracts. (Municipality of Cavite vs. Rojas, 30 Phil. 602);

2) They cannot be acquired by prescription against the state (Insular

Government vs. Aldecoa, 19 Phil. 505). Even municipalities can not acquire
them for use as communal lands against the state (City of Manila vs. Insular
Government, 10 Phil. 327);
 3) They are not subject to attachment and execution (Tan Toco vs. Municipal
Council of Iloilo, 49 Phil. 52);

4) They cannot be burdened by any voluntary easement (2-II Colin & Capitant
520) (Tolentino, Civil Code of the Phils., Vol. II, 1983 Ed. pp. 29-30).

In the aforecited case of Municipality of Cavite vs. Rojas, it was held that
properties for public use may not be leased to private individuals. Such a lease
is null and void for the reason that a municipal council cannot withdraw part of
the plaza from public use. If possession has already been given, the lessee must
restore possession by vacating it and the municipality must thereupon restore to
him any sums it may have collected as rent.

In the case of City of Manila vs. Gerardo Garcia, 19 SCRA 413, the Supreme
Court held:

The property being a public one, the Manila Mayors did not
have the authority to give permits, written or oral, to the
squatters, and that the permits granted are therefore considered
null and void.

This doctrine was reiterated in the case of Baguio Citizens

Action Inc. vs. The City Council, 121 SCRA 368, where it was
held that:

An ordinance legalizing the occupancy by squatters of public

land is null and void.

The authority of respondent Municipality of Makati to demolish the shanties of

the petitioner's members is mandated by
P.D. 772, and Sec. 1 of Letter of Instruction No. 19 orders certain public
officials, one of whom is the Municipal Mayor to remove all illegal
constructions including buildings on and along esteros and river banks, those
along railroad tracks and those built without permits on public or private
property (Zansibarian Residents Association vs. Mun. of Makati, 135 SCRA
235). The City Engineer is also among those required to comply with said Letter
of Instruction.

The occupation and use of private individuals of sidewalks and other public
places devoted for public use constitute both public and private nuisances and
nuisance per se, and this applies to even case involving the use or lease of public
places under permits and licenses issued by competent authority, upon the
theory that such holders could not take advantage of their unlawful permits and
license and claim that the land in question is a part of a public street or a public
place devoted to public use, hence, beyond the commerce of man. (Padilla, Civil
Code Annotated, Vol. II, p. 59, 6th Ed., citing Umali vs. Aquino, IC. A. Rep.
339.)

From the aforequoted jurisprudence/principles, the Court opines that defendants have the right to
demolish the subject stalls of the plaintiffs, more so when Section 185, par. 4 of Batas Pambansa
Blg. 337, otherwise known as the Local Government Code provides that the City Engineer shall:

(4) . . .
 (c) Prevent the encroachment of private buildings and fences
on the streets and public places;

xxx xxx xxx

(j) Inspect and supervise the construction, repair, removal and

safety of private buildings;

xxx xxx xxx

(k) With the previous approval of the City Mayor in each case,
order the removal of materials employed in the construction or
repair of any building or structures made in violation of law or
ordinance, and cause buildings and structures dangerous to the
public to made secure or torn down;

xxx xxx xxx

Further, the Charter of the City of Caloocan, Republic Act No. 5502, Art. VII, Sec. 27, par. g, 1
and m, grants the City Engineer similar powers. (Emphasis supplied; pp. 17-20, Rollo.)

However, shortly after the decision came out, the city administration in Caloocan City changed hands. City Mayor
Macario Asistio, Jr., as successor of Mayor Martinez, did not pursue the latter's policy of clearing and cleaning up
the city streets.

Invoking the trial court's decision in Civil Case No. C-12921, Francisco U. Dacanay, a concerned citizen, taxpayer
and registered voter of Barangay 74, Zone 7, District II of Caloocan City, who resides on Heroes del '96 Street, one
of the affected streets, wrote a letter dated March 7, 1988 to Mayor Asistio, Jr., calling his attention to the illegally-
constructed stalls on Heroes del '96 Street and asked for their demolition.

Dacanay followed up that letter with another one dated April 7, 1988 addressed to the mayor and the city engineer,
Luciano Sarne, Jr. (who replaced Engineer Arturo Samonte), inviting their attention to the Regional Trial Court's
decision in Civil Case No. 12921. There was still no response.

Dacanay sought President Corazon C. Aquino's intervention by writing her a letter on the matter. His letter was
referred to the city mayor for appropriate action. The acting Caloocan City secretary, Asuncion Manalo, in a letter
dated August 1, 1988, informed the Presidential Staff Director that the city officials were still studying the issue of
whether or not to proceed with the demolition of the market stalls.

Dacanay filed a complaint against Mayor Asistio and Engineer Sarne (OMB-0-89-0146) in the Office of the
OMBUDSMAN. In their letter-comment dated April 3, 1989, said city officials explained that in view of the huge
number of stallholders involved, not to mention their dependents, it would be harsh and inhuman to eject them from
the area in question, for their relocation would not be an easy task.

In reply, Dacanay maintained that respondents have been derelict in the performance of their duties and through
manifest partiality constituting a violation of Section 3(e) of R.A. 3019, have caused undue injury to the
Government and given unwarranted benefits to the stallholders.

After conducting a preliminary investigation, the OMBUDSMAN rendered a final evaluation and report on August
28, 1989, finding that the respondents' inaction is purely motivated by their perceived moral and social responsibility
toward their constituents, but "the fact remains that there is an omission of an act which ought to be performed, in
clear violation of Sections 3(e) and (f) of Republic Act 3019." (pp. 83-84, Rollo.) The OMBUDSMAN
recommended the filing of the corresponding information in court.
As the stallholders continued to occupy Heroes del '96 Street, through the tolerance of the public respondents, and in
clear violation of the decision it Civil Case No. C-12921, Dacanay filed the present petition for mandamus on June
19, 1990, praying that the public respondents be ordered to enforce the final decision in Civil Case No. C-12921
which upheld the city mayor's authority to order the demolition of market stalls on V. Gozon, Gonzales and Heroes
del '96 Streets and to enforce P.D. No. 772 and other pertinent laws.

On August 16, 1990, the public respondents, through the City Legal Officer, filed their Comment' on the petition.
The Office of the Solicitor General asked to be excused from filing a separate Comment in behalf of the public
respondents. The City Legal Officer alleged that the vending area was transferred to Heroes del '96 Street to
decongest Malonzo Street, which is comparatively a busier thoroughfare; that the transfer was made by virtue of
Barangay Resolution No. 30 s'78 dated January 15, 1978; that while the resolution was awaiting approval by the
Metropolitan Manila Commission, the latter passed Ordinance No. 79-2, authorizing the use of certain streets and
open spaces as sites for flea markets and/or vending areas; that pursuant thereto, Acting MMC Mayor Virgilio P.
Robles issued Executive Order No. 135 dated January 10, 1979, ordering the establishment and operation of flea
markets in specified areas and created the Caloocan City Flea Market Authority as a regulatory body; and that
among the sites chosen and approved by the Metro Manila Commission, Heroes del '96 Street has considered "most
viable and progressive, lessening unemployment in the city and servicing the residents with affordable basic
necessities."

The petition for mandamus is meritorious.

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 other contract (Villanueva et al. vs. Castañeda and Macalino, 15 SCRA 142, citing the
Municipality of Cavite vs. Rojas, 30 SCRA 602; Espiritu vs. Municipal Council of Pozorrubio, 102 Phil. 869; and
Muyot vs. 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.
As early as 1989, the public respondents bad started to look for feasible alternative sites for flea markets. They have
had more than ample time to relocate the street vendors.

WHEREFORE, it having been established that the petitioner and the general public have a legal right to the relief
demanded and that the public respondents have the corresponding duty, arising from public office, to clear the city
streets and restore them to their specific public purpose (Enriquez vs. Bidin, 47 SCRA 183; City of Manila vs.
Garcia et al., 19 SCRA, 413 citing Unson vs. Lacson, 100 Phil. 695), the respondents City Mayor and City Engineer
of Caloocan City or their successors in office are hereby ordered to immediately enforce and implement the decision
in Civil Case No. C-1292 declaring that Heroes del '96, V. Gozon, and Gonzales Streets are public streets for public
use, and they are ordered to remove or demolish, or cause to be removed or demolished, the market stalls occupying
said city streets with utmost dispatch within thirty (30)days from notice of this decision. This decision is
immediately executory.

SO ORDERED.
 12.

DONALD MEAD, petitioner,

vs.
HON. MANUEL A. ARGEL in his capacity as Presiding Judge in the Court of First Instance of Rizal,
Branch XXXV and the PEOPLE OF THE PHILIPPINES, respondents.

Ozaeta, Romulo, De Leon & Reyes & Associates for petitioner.

Solicitor General Estelito P. Mendoza, Acting Solicitor General Hugo Gutierrez, Jr., Asst. Solicitor General
Octavio R. Ramirez and Solicitor Mariano M. Martinez for respondents.

VASQUEZ, J.:

The issue posed for determination in this case is whether or not a Provincial Fiscal has the authority to file an
information for a violation of Republic Act No. 3931, entitled "An Act Creating a National Water and Air Pollution
Control Commission."

On March 11, 1975, petitioner Donald Mead and a certain Isaac Arivas were charged by the Provincial Fiscal of
Rizal with a violation of Section 9, in relation to Section 10 of Republic Act No. 3931, under an information reading
as follows:

That on or about the 23rd day of August, 1972, and for some time prior and subsequent thereto, in
the municipality of Malabon, province of Rizal, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, being then the president and the general manager,
respectively, of the Insular Oil Refinery Co. (INSOIL) a corporation duly organized in accordance
with existing laws, conspiring and confederating together and mutually helping and aiding one
another, did then and there willfully, unlawfully and feloniously drain or otherwise dispose into
the highway canal and/or cause, permit, suffer to be drained or allow to seep into such waterway
the industrial and other waste matters discharged due to the operation of the said Insular Oil
Refinery Co. so managed and operated by them, thereby causing pollution of such waterway with
the resulting damage and/or destruction to the living plants in the vicinity and providing hazard to
health and property in the same vicinity.

The case was docketed as Criminal Case No. C-5984-75 and it was subsequently assigned to Branch XXXV of the
Court of First Instance of Rizal (Caloocan City) presided over by the respondent Judge.

On August 11, 1975, petitioner Donald Mead, one of the accused in the criminal case, filed a motion to quash on the
grounds that the trial court has no jurisdiction and that the Provincial Fiscal of Rizal has no legal personality to file
the above-quoted information. The motion to quash was denied by the respondent Judge in an Order dated
September 5, 1975. A Motion For Reconsideration filed by the petitioner was also denied by the respondent Judge in
his Order of November 10, 1965. Hence, this petition for certiorari with preliminary injunction to annul the said
orders of the respondent Judge who allegedly acted in excess of or without jurisdiction in issuing the same.

In Our Resolution dated November 28, 1975, the respondents were required to comment on the petition and a
temporary restraining order was issued to enjoin the respondent Judge from enforcing his questioned orders until
otherwise directed by this Court.
It is the principal contention of the petitioner that the National Water and Air Pollution Control Commission
(hereinafter referred to as the "Commission") as created under Republic Act No. 3931 has the exclusive authority to
determine the existence of "pollution" before a criminal case can be filed for a violation of the said law; and that it
has the exclusive authority to prosecute violations of the same. Petitioner further avers that the Commission not
having finally ruled that the petitioner has violated Republic Act No. 3931, the Provincial Fiscal of Rizal lacks the
authority to prosecute the petitioner for a violation of said law.

The respondents, on the other hand, maintain that while Republic Act No. 3931 grants the power and duty to the
Commission to investigate and prosecute violations of Republic Act No. 3931, such grant of power and authority is
not exclusive, and does not deprive fiscals and other public prosecutors of their authority to investigate and
prosecute violations of the said law committed within their respective jurisdictions.

Before discussing the main issue on its merits, We deem it necessary to resolve a procedural question raised by the
respondents in support of their prayer that the instant petition should not be entertained. Respondents advert to the
rule that when a motion to quash filed by an accused in a criminal case shall be denied, the remedy of the accused-
movant is not to file a petition for certiorari or mandamus or prohibition, the proper recourse being to go to trial,
without prejudice to his right to reiterate the grounds invoked in his motion to quash if an adverse judgment is
rendered against him, in the appeal that he may take therefrom in the manner authorized by law. (Mill vs. People, et
al., 101 Phil. 599; Echarol us. Purisima, et al, 13 SCRA 309.)

There is no disputing the validity and wisdom of the rule invoked by the respondents. However, it is also recognized
that, under certain situations, recourse to the extraordinary legal remedies of certiorari, prohibition or mandamus to
question the denial of a motion to quash is considered proper in the interest of "more enlightened and substantial
justice", as was so declared in "Yap vs. Lutero", G.R. No. L-12669, April 30, 1969, 105 Phil. 3007:

However, were we to require adherence to this pretense, the case at bar would have to be
dismissed and petitioner required to go through the inconvenience, not to say the mental agony
and torture, of submitting himself to trial on the merits in Case No. 16443, apart from the expenses
incidental thereto, despite the fact that his trial and conviction therein would violate one of this
constitutional rights, and that, an appeal to this Court, we would, therefore, have to set aside the
judgment of conviction of the lower court. This would, obviously, be most unfair and unjust.
Under the circumstances obtaining in the present case, the flaw in the procedure followed by
petitioner herein may be overlooked, in the interest of a more enlightened and substantial justice.

To the same effect is the pronouncement in "Pineda and Ampil Manufacturing Co., vs. Bartolome, et al.," 95 Phil.,
930938, expressed as follows:

While a denial of a motion to dismiss for lack of jurisdiction was held not to be a proper basis for
a petition for certiorari [Nico vs. Blanco, 46 Off. Gaz., Supp. (1) 88; 81 Phil., 2131, or an appeal
not certiorari is the proper remedy for correcting an error which a lower court may commit in
denying a motion to set aside a judgment, or in setting aside an order of dismissal, [Rios vs. Ros et
al., 45 Off. Gaz. (No. 3), 1265; 79 Phil. 243; Santos vs. Pecson, 45 Off. Gaz. (No. 3), 1278; 79
Phil.754] however, in some instances, the Supreme Court has departed from the general rule and
has entertained the writ notwithstanding the existence of an appeal. Thus, in one case the Supreme
Court took cognizance of a petition for certiorari notwithstanding the fact that the accused could
have appealed in due time when it found that the action was necessary to promote public welfare
and public policy (People vs. Zulueta, 89 Phil. 880). In another case, a petition for certiorari to
annul an order of the trial judge admitting an amended information was entertained although the
accused had an adequate remedy by appeal "inasmuch as the Surplus Property cases have attracted
nationwide attention, making it essential to proceed with dispatch in the consideration thereof.
(People vs, Zulueta, supra. Citing Arevalo vs. Nepomuceno, 63 Phil., 627.) And still in another
case, the writ was entertained where the appeal was found not to be adequate remedy, as where the
order which is sought to be reviewed is merely of interlocutory or peremptory character, and the
appeal therefrom can be interposed only after final judgment and may therefore be of no avail.
 (Rocha vs. Crossfield, 6 Phil., 355; Leung Ben vs. O'Brien, 38 Phil., 182. See also Mendoza vs.
Parungao, 49 Phil., 271; Dais vs. Court of First Instance, 51 Phil., 36).

For analogous reasons it may be said that the petition for certiorari interposed by the accused
against the order of the court a quo denying the motion to quash may be entertained, not only
because it was rendered in a criminal case, but because it was rendered, as claimed, with grave
abuse of discretion, as found by the Court of Appeals, it would be indeed unfair and unjust, if not
derogatory of their constitutional right, to force the accused to go to trial under an information
which, in their opinion, as was found, accuses them of multiple offenses in contravention of law.
And so, in our opinion, the respondent court did not err in entertaining the petition for certiorari
instead of dismissing it, as claimed.

The motion to quash filed by the accused in Yap vs. Lutero was on the ground of double jeopardy. In Pineda vs.
Bartolome, the ground invoked was duplicity of offenses charged in the information. In the case at bar, the petitioner
assails the very jurisdiction of the court wherein the criminal case was filed, Certainly, there is a more compelling
reason that such issue be resolved soonest, in order to avoid the court's spending precious time and energy
unnecessarily in trying and deciding the case, and to spare the accused from the inconvenience, anxiety and
embarrassment, let alone the expenditure of effort and money, in undergoing trial for a case the proceedings in
which could possibly be annuled for want of jurisdiction. Even in civil actions, We have counselled that when the
court's jurisdiction is attacked in a motion to dismiss, it is the duty of the court to resolve the same as soon as
possible in order to avoid the unwholesome consequences mentioned above.

It is also advanced that the present petition is premature, since respondent court has not definitely
ruled on the motion to dismiss, nor held that it has jurisdiction, but only argument is untenable.
The motion to dismiss was predicated on the respondent court's lack of jurisdiction to entertain the
action, and the rulings of this Court are that writs of certiorari or prohibition, or both, may issue in
case of a denial or deferment of action on such a motion to dismiss for lack of jurisdiction.

If the question of jurisdiction were not the main ground for this petition for review by certiorari, it
would be premature because it seeks to have a review of an interlocutory order. But as it would be
useless and futile to go ahead with the proceedings if the court below had no jurisdiction this
petition was given due course.' (San Beda vs. CIA 51 O.G. 6636, 5638).

While it is true that action on a motion to dismiss may be deferred until the trial and an order to
that effect is interlocutory, still where it clearly appears that the trial judge or court is proceeding
in excess or outside of its jurisdiction, the remedy of prohibition would lie since it would be
useless and a waste of time to go ahead with the proceedings. (Philippine International Fair, Inc.,
et al., vs. Ibanez, et al, 50 Off. Gaz. 1036; Enrique vs. Macadaeg, et all 47 Off. Gaz. 1207; see also
San Beda College vs. CIR, 51 Off. Gaz. 5636.) (University of Sto. Tomas vs. Villanueva, L-13748,
30 October 1959.) (Time, Inc. vs. Reyes, 39 SCRA, pp. 315-316.)

An additional factor that induced Us to entertain the instant petition is the obvious merit We find in the same. Our
reading of the provisions of Republic Act No. 3931 has convinced Us that the clear legislative intention is to vest in
the Commission the exclusive authority to determine the existence of "pollution" penalized thereunder and to
prosecute violations of said law.

The information filed against the herein petitioner charges him with a violation of Section 9, in relation to Section
10 of Republic Act No. 3931. More specifically, it alleges that the petitioner, with his co-accused Isaac Arivas,
"willfully, unlawfully and feloniously drain or otherwise dispose into the highway canal and/or cause, permit, suffer
to be drained or allow to seep into such waterway the industrial and other waste matters discharged due to the
operation of the said Insular Oil Refinery Co. so managed and operated by them, thereby causing pollution of such
waterway with the resulting damage and/or destruction to the arriving plants in the vicinity and providing hazard to
health and property in the same vicinity."
Section 9 in its first paragraph, supposedly the criminal act being imputed to the petitioner, reads as follows:

SEC. 9. Prohibitions. — No person shall throw, run, drain, or otherwise dispose into any of the
water and/or atmospheric air of the Philippines, or cause, permit, suffer to be thrown, run, drain,
allow to see or otherwise dispose into such waters or atmospheric air, any organic or inorganic
matter or any substance in gaseous or liquid form that shall cause pollution of such waters or
atmospheric air.

It will be noted from the above-quoted provision that the prohibited act is to throw, run, drain or otherwise dispose
into any of the water and/or atmospheric air of the Philippines, any organic or inorganic matter or substance "that
shall cause pollution of such waters or atmospheric air." Stated in simpler terms, the offense allegedly committed by
the petitioner was the act of causing pollution of a waterway (highway canal).

The term "pollution" as used in the law is not to be taken in its ordinary signification. In Section 2, paragraph (a), of
Republic Act No. 3931, "pollution" is defined in these words:

(a) Pollution' means such alteration of the physical, chemical and/or biological properties of any
water and/or atmospheric air of the Philippines, or any such discharge of any liquid, gaseous or
solid substance into any of the waters and/or atmospheric air of the country as will or is likely to
create or render such waters and/or atmospheric air harmful or detrimental or injurious to public
health, safety or welfare, or to domestic, commercial, industrial, agricultural, recreational or other
legitimate uses, or to livestock, wild animals, birds, fish or of her aquatic life.

The power to determine the existence of pollution is vested by the law in the Commission. Section 6, among others,
gives the Commission the authority to "determine whether a pollution exists in any of the waters and/or atmospheric
air of the Philippines." (Section 6(a), No. 1); to "hold public hearings, ... make findings of facts and determinations
all with respect to the violations of this Act or orders issued by the Commission." (Ibid., No. 3); to "institute or cause
to be instituted in the court of competent jurisdiction legal proceedings to compel compliance with the provisions of
this Act" (Ibid, No. 5); and, "after due notice and hearing, revoke, suspend or modify any permit issued under this
Act whenever modifications are necessary to prevent or abate pollution of any water and/or atmospheric air of the
Philippines." (Ibid., No. 7.) Section 8 contains explicit provisions as to the authority of the Commission to determine
the existence of pollution and to take appropriate court actions to abate or prevent the same. It provides:

SEC. 8. Proceedings before the Commission . — The Commission may, on its own motion, or
upon the request of any person, investigate or may inquire, in a manner to be determined by it, as
to any alleged act of pollution or the omission or failure to comply with any provisions of this Act
or any order of this Commission.

Whenever it appears to the Commission, after investigation, that there has been a violation of any
of the provisions of this Act or any order of the Commission, it may order whoever causes such
violation to show cause before said Commission why such discharge of industrial wastes or any
waste should not be discontinued. A notice shall be served on the offending party directing him or
it to show cause before the Commission, on a date specified in such notice, why an order should
not be made directing the discontinuance of such violation. Such notice shall specify the time and
the place where a public hearing will be held by the Commission or its authorized representatives,
and notice of such hearing shall be served personally or by registered mail, at least ten days before
said hearing; and in the case of a municipality or corporation such notice shall be served upon the
major or president thereof. The Commission shall take evidence with reference to said matter and
may issue an order to the party responsible for such violation, directing that within a specified
period of time thereafter, such violation be discontinued unless adequate sewage works or
industrial wastes disposal system be properly operated to prevent further damage or pollution.

No investigation being conducted or ruling made by the Commission shall prejudice any action
which may be filed in court by any person in accordance with the provisions of the New Civil
 Code on nuisance. On matters, however, not related to nuisance, no court action shall be initiated
until the Commission shall have finally ruled thereon and no order of the Commission
discontinuing the discharge of waste shall be stayed by the filing of said court action, unless the
court issues an injunction as provided for in the Rules of Court.

The last paragraph of the above-quoted provision delineates the authority to be exercised by the Commission and by
the ordinary courts in respect of preventing or remedying the pollution of the waters or atmospheric air of the
Philippines. The provision excludes from the authority of the Commission only the determination of and the filing of
court actions involving violations of the New Civil Code on nuisance. It is expressly directed that on matters not
related to nuisance "no court action shall be initiated until the Commission shall have finally ruled thereon." This
provision leaves little room for doubt that a court action involving the determination of the existence of pollution
may not be initiated until and unless the Commission has so determined the existence of what in the law is
considered pollution.

It may not be argued that the above-cited provision refers only to the filing of civil actions, and not to criminal cases
as is the one herein involved, there being no basis either in the context in law nor from a consideration of the
purpose behind the enactment of the same upon which such a distinction may be made. Indeed, respondents do not
seriously question that the court action contemplated in the last paragraph of Section 8 includes criminal
proceedings. Respondents merely aver that the aforementioned grant of authority to the Commission is not exclusive
of the power of Fiscals to file criminal actions for a violation of the provisions of Republic Act No. 3931.

We are likewise not in accord with the view that the law intended to give concurrent authority to the Commission
and Fiscals to prosecute violations of Republic Act No. 3931. It is true that there is no provision expressly declaring
that the authority vested in the Commission to prosecute violations of Republic Act No. 3931 is exclusive. Using the
same logic, there is neither a provision declaring such authority to be concurrent or may be exercised jointly with
Fiscals. The absence of an explicit declaration as to the exclusive authority of the Commission to prosecute
violations of the subject law does not detract from the clear intention to make it so, as gathered from the philosophy
of the law itself and as gleaned from several provisions of the same. It is clearly deducible from the provision of
Section 8 expressly declaring that no court action shall be initiated, except those related to nuisance, until the
Commission shall have finally ruled on the alleged act of pollution; and also from Section 6(a), No. 5, which
authorizes the Commission to "initiate or cause to be instituted in a court of competent jurisdiction legal proceedings
to compel compliance with the provisions of this Act."

As may be seen from the law, the determination of the existence of pollution requires investigation, public hearings
and the collection of various information relating to water and atmospheric pollution. (Sections 6, 7, and 8.) The
definition of the term "pollution" in itself connotes that the determination of its existence requires specialized
knowledge of technical and scientific matters which are not ordinarily within the competence of Fiscals or of those
sitting in a court of justice. It is undoubtedly in recognition of this fact that in Section 4 of the law, it is provided that
"the basic personnel necessary to carry out the provisions of this Act shall be engineers, chemists, biochemists,
physicists, and other technicians"; and required in Section 3 that the Chairman of the Commission shall be the
Chairman of the National Science Development Board, one of the part-time commissioners shall be a recommendee
of the Philippine Council of Science and Technology, and one of the two full-time commissioner shall be a sanitary
engineer.

The vesting of authority in an administrative body to determine when to institute a criminal action for a violation of
the law entrusted to it for administration or enforcement, to the exclusion of the regular prosecution service of the
government, is not new in this jurisdiction. It is recognized in Yao Lit vs. Geraldez et al., 106 Phil. 545 which
upheld the exclusive authority of the Commissioner of Immigration' to investigate and impose administrative fines
upon violators of the provisions of Republic Act No. 751 for the reason that said official "has better facilities than
the prosecuting officials to carry out the provisions of the said Act, the former official being the keeper of the
records pertaining to aliens." The same principle has been recognized with respect to the prosecutions of violations
of the Anti-Dummy Law (Republic Act No. 1131.) In holding that the City Fiscal of Manila has no authority to
prosecute such violations independently of the Anti-Dummy Board, it was said:
 Were the city fiscal or the provincial fiscals who have the power or right to prosecute violations of
all laws and ordinances allowed to prosecute violations of the Anti- Dummy Board, there would
be no order, concert, cooperation, and coordination between the said agencies of the government.
The function of coordination which is entrusted to the Anti-Dummy Board is evident from all the
above-quoted provisions of Republic Act No. 1130. There can be no coordination as envisioned in
the law unless the Anti-Dummy Board be given the power to direct and control the city fiscal in
the prosecutions of the violations of the Anti-Dummy Law. (Rollo, p. 118; 5 SCRA 428,433.)

In R. B. Industrial Development Co., Ltd. vs. Enage (24 SCRA 365) involving the authority of the Bureau of
Forestry over the management and use of public forests and the transfer of licenses for the taking of forest products,
this Court has made this pronouncement:

A doctrine long recognized is that where the law confines in an administrative office the power to
determine particular questions or matters, upon the facts to be presented, the jurisdiction of such
office shall prevail over the courts. (p. 124, Rollo.)

It is our considered view that the Provincial Fiscal of Rizal lacked the authority to file the information charging the
petitioner with a violation of the provisions of Republic Act No. 3931 there being no prior finding or determination
by the Commission that the act of the petitioner had caused pollution in any water or atmospheric air of the
Philippines. It is not to be understood, however, that a fiscal or public prosecutor may not file an information for a
violation of the said law at all. He may do so if the Commission had made a finding or determination that the law or
any of its orders had been violated. In the criminal case presently considered, there had been no prior determination
by the Commission that the supposed acts of the petitioner had caused pollution to any water of the Philippines. The
filing of the information for the violation of Section 9 of the law is, therefore, premature and unauthorized.
Concommittantly, the respondent Judge is without jurisdiction to take cognizance of the offense charged therein.

WHEREFORE, the petition is hereby granted and the questioned Orders of the respondent Judge are hereby annuled
and set aside. The respondent Judge is ordered to dismiss Criminal Case No. 5984-75 for lack of jurisdiction. No
costs.

SO ORDERED.

13.

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

Pedro A. Venida for petitioners.

Manuel M. Maramba for private respondents.

CORTES, J.:

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

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

xxx xxx xxx

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

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

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

On the issue of physical possession, the Court held that defendant City Engineer and Building
Official of the City of Manila had acted within the scope of his authority under the National
Building Code and the applicable ordinances of the City of Manila in ordering the demolition of
structures found to be dangerous or ruinous and detrimental to the life, health and safety of the
community and its members.
 The respondent Judge ruled that the ownership of the defendants over the lots in question as
proven by the Transfer Certificate of Title No. 160964 of the Registry of Deeds for Manila "is
hereby confirmed", the issuance of the writ of preliminary injunction is denied, and the case set for
pre-trial on the unresolved issues on the physical possession of the questioned lots, and the claim
for damages and attorney's fees.

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

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

xxx xxx xxx

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

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

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

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

II

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

III

THE COURT OF APPEALS ERRED IN DETERMINING THAT certiorari IS NOT THE PROPER REMEDY IN
THIS CASE.

IV
THE COURT OF APPEALS ERRED IN HOLDING THAT THE INHIBITION OF RESPONDENT JUDGE WAS
NOT CALLED FOR UNDER THE CIRCUMSTANCES OF THIS CASE. [Rollo, pp. 87-88.]

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

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

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

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

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

Contrary to petitioners' position, the fact that the buildings in question could also constitute nuisances under the
Civil Code does not preclude the Building Official from issuing the assailed demolition order. Indeed, the National
Building Code itself provides that:
 When any building or structure is found or declared to be dangerous or ruinous, the Building
Official shall order its repair, vacation or demolition depending upon the degree of danger to life,
health or safety. This is without prejudice to further action that may be taken under the Provisions
of articles 482 and 484 to 707 of the Civil Code of the Philippines [Second paragraph of Section
214].

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

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

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

xxx xxx xxx

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

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

xxx xxx xxx

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

xxx xxx xxx

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

Petitioners' contention is untenable. The phraseology used by the respondents does not at all connote that they are
acknowledging the petitioners as owners of the demolished structures. On the other hand, petitioners, as tenants of
the former owner of the property which was Pilipinas Bank, cannot deny the title of the private respondents which
passed to the latter by virtue of the deed of absolute sale dated February 22, 1984 [Rule 131, Section 3 (b), Revised
Rules of Court]. Contrary to petitioners' stand, the negation and avoidance of warranty contained in said deed does
not refer to ownership but only to physical possession as can be gleaned from its clear terms:

The VENDOR does not warrant absolute and complete physical possession of the premises. It is
understood and agreed that the VENDEES accept the premises subject to any and all lease
contracts, verbal and otherwise, which may be outstanding ... A list of tenants or persons staying
on the premises is hereto attached and marked Annex "A" and made part hereof,

xxx xxx xxx

[Rollo, p. 17; Emphasis supplied.]

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

xxx xxx xxx

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

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

xxx xxx xxx

[Record, p. 157.]

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

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

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

Section 1. Disqualification of judges.-No judge or judicial officer shall sit in any case in which he,
or his wife or child, is pecuniarily interested as heir, legatee, creditor or otherwise, or in which he
is related to either party within the sixth degree of consanguinity of affinity, or to counsel within
the fourth degree, computed according to the rules of the civil law, or in which he has been an
executor, administrator, guardian, trustee or counsel, or in which he has presided in any inferior
court when his ruling or decision is the subject of review, without the written consent of all parties
in interest, signed by them and entered upon the record.
 A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for
just or valid reasons other than those mentioned above.

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

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

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

SO ORDERED.

14.

RESTITUTO CALMA, petitioner,

vs.
THE HON. COURT OF APPEALS (FIFTH DIVISION) and PLEASANTVILLE DEVELOPMENT
CORPORATION, respondents.

Restituto S. Calma and Carlos S. Ayeng for petitioner.

William N. Mirano & Associates for respondents.

CORTES, J.:

Petitioner Restituto Calma, through this Petition for Review on certiorari, seeks to set aside the decision of the
Court of Appeals in CA-G.R. SP. No. 10684 dated 26 February 1987 declaring null and void an order of the Human
Settlements Regulatory Commission (hereinafter referred to as the COMMISSION) dated 30 September 1986
calling for the issuance of a writ of execution to enforce its decision of 22 May 1985.

The antecedents of this case are as follows:

Sometime in August 1975, the spouses Restituto and Pilar Calma purchased a lot in respondent Pleasantville
Development Corporation's (hereinafter referred to as PLEASANTVILLE) subdivision in Bacolod City, known as
City Heights Phase II. In 1976, they built a house on said lot and established residence therein. Fabian and Nenita
Ong also purchased from PLEASANTVILLE a lot fronting that of the Calma spouses sometime in the years 1979-
1980, and constructed their own buildings where they resided and conducted their business. On 25 April 1981,
petitioner Calma wrote the president of the Association of Residents of City Heights, Inc. (ARCHI) complaining
that the compound of the Ongs was being utilized as a lumber yard and that a "loathsome noise and nervous
developing sound" emanating therefrom disturbed him and his family and caused them and their son to suffer
nervous tension and illness [Rollo, p. 58]. The president of the association, in his reply, stated that the association's
board had referred the matter to Fabian Ong who had already taken immediate action on petitioner's complaint, i.e.,
by ordering the transfer of the lumber cutting machine and by instructing his laborers not to do any carpentry or
foundry works in the early morning or afternoon and in the evening. Finding the measures taken by the association
and Fabian Ong unsatisfactory, petitioner on 17 June 1981 wrote and asked PLEASANTVILLE, as its duty and
obligation, to abate the nuisance emanating from the compound of the Ong family. Failing to get an answer, the
Calma spouses filed a complaint for damages against the Ong spouses and PLEASANTVILLE on 28 July 1981
before the Court of First Instance of Negros Occidental docketed as Civil Case No. 16113, alleging inter alia that
were it not for PLEASANTVILLE's act of selling the lot to the Ongs and its failure to exercise its right to cause the
demolition of the alleged illegal constructions, the nuisance could not have existed and petitioner and his family
would not have sustained damage. Thus, the complaint prayed for actual, moral and exemplary damages and
attomey's fees and expenses of litigation.

Petitioner also filed with the National Housing Authority (NHA), on 31 August 1981, a complaint for "Violation of
the Provisions, Rules and Regulations of the Subdivision and Condominium Buyers Protective Decree under
Presidential Decree No. 957," claiming inter alia that were it not for the negligent acts of PLEASANTVILLE in
selling the parcel of land to the spouses Fabian and Nenita Ong and its refusal to exercise its right to cause the
demolition of the structures built by the Ongs in violation of the contractual provision that the land shall be used
only for residential purposes, the illness of petitioner and as soon would not have happened. Petitioner prayed that
PLEASANTVILLE be ordered to abate the nuisance and/or demolish the offending structures; to refund the
amortization payments made on petitioner's lot; and to provide petitioner and his son with medication until their
recovery. He also prayed that PLEASANTVILLE be penalized under Sec. 39 of P.D. No. 957 and that its license be
revoked.

After the answer to the complaint was filed, the issues joined and the respective position papers submitted, the
COMMISSION (which had in the meantime taken over the powers of the NHA,)*rendered its decision in HSRC No.
REM-92181-0547 on 22 May 1985 dismissing the complaint of the petitioner for lack of merit, finding that
PLEASANTVILLE did not violate Sections 9(b), 19 and 23 of P.D. No. 957, but included a portion holding
PLEASANTVILLE responsible for the abatement of the alleged nuisance on the ground that it was part of its
implied warranty that its subdivision lots would be used solely and primarily for residential purpose.

Thus, the dispositive portion of the COMMISSION's decision read:

In view of the foregoing, the complaint for violation of Sections 9(f) and 23 of P.D. 957 is hereby
DISMISSED. Respondent, however is hereby ordered to take appropriate measures for the
prevention and abatement of the activities/nuisance complained of so as to ensure complainant's
peaceful and pleasant living in the residential subdivision of respondent. In this regard,
respondent within 15 days from finality of this decision, shall submit a timetable of the action to
be taken in compliance with this directive and thereafter, a periodic status report of the progress
of compliance. [Rollo, p. 35; Emphasis supplied.]

On 27 August 1986, respondent COMMISSION issued the order granting the issuance of a writ of execution of its
decision. Aggrieved, PLEASANTVILLE filed a petition for prohibition with preliminary injunction with this Court
assailing the portion of the COMMISSION's decision ordering it to "take appropriate measures for the prevention
and abatement of the nuisance complained of," and its directive requiring PLEASANTVILLE to submit a timetable
of the action to be taken and a periodic status report of the progress of its compliance. PLEASANTVILLE asserted
that since the COMMISSION had found that it did not violate any provision of P.D. No. 957, the COMMISSION
exceeded its jurisdiction when it ordered PLEASANTVILLE to prevent/abate the alleged nuisance complained of.

The Court referred the petition to the Court of Appeals which rendered judgment holding that the COMMISSION
"acted capriciously and in excess of its jurisdiction in imposing an obligation upon the petitioner after absolving it of
the complaint filed against it" [Rollo, p. 38], the relevant portion of which decision is quoted below:

We find the petition impressed with merit. Presidential Decree No. 957 is a regulatory decree with
penal sanctions. While it absolved the petitioner of any penal liability by dismissing the complaint
against it because it has not violated the pertinent provisions of Sections 9(f), 19 and 23, P.D. 957,
yet it imposed an obligation to perform something that was not proven in the complaint—-that is
to abate the occurrence of nuisance and to submit a timetable of action and a periodic report of the
 progress of compliance. The order does not only appear overbearing and/or arbitrary, but it is
without any basis in fact. . . .

Thus, the Court of Appeals ruled:

WHEREFORE, in view of the foregoing, We find merit in the petition and the same is hereby
GRANTED, It is hereby ORDERED:

1) That order of respondent Commission dated 27 August 1986 for the issuance of a writ of
execution is SET ASIDE as null and void;

2) That should any writ relative thereto been (sic) issued, the same is DISSOLVED or
CANCELLED;

3) That portion of the dispositive portion of the decision of respondent Commission of May 22,
1985, ordering petitioner respondent to take appropriate measure for the prevention and abatement
of activities/nuisance complained of in said case and the submission of timetable of action and
periodic report is SET ASIDE as null and void.

No pronouncement as to costs.

SO ORDERED. [Rollo, pp. 38-39.]

Petitioner moved for reconsideration of the decision but the Court of Appeals denied his motion. Hence, petitioner
brought the instant petition for review on certiorari seeking the reversal of the decision of the Court of Appeals and
the reinstatement of the COMMISSION'S decision.

1. The power to abate a nuisance, is not one of those enumerated under P.D. No. 957, the
Subdivision and Condominium Buyers Protective Decree. However, as pointed out by the
Solicitor General before the Court of Appeals, the COMMISSION has been specifically
authorized by Executive Order No. 648 dated February 7, 1981 (otherwise known as the "Charter
of the Human Settlements Regulatory Commission"), to-

Issue orders after conducting the appropriate investigation for the cessation or closure of any use
or activity and to issue orders to vacate or demolish any building or structure that it determines to
have violated or failed to comply with any of the laws, presidential decrees, letter of instructions,
executive orders and other presidential issuances and directives being implemented by it, either on
its own motion or upon complaint of any interested party. [Sec, 5 (p).] **

At this point the Court finds it unnecessary to go into whether or not the COMMISSION's order to
PLEASANTVILLE to take measures for the prevention and abatement of the nuisance complained of finds solid
support in this provision because, as found by the Court of Appeals, the COMMISSION's conclusion that the
activities being conducted and the structures in the property of the Ongs constituted a nuisance was not supported by
any evidence. The Solicitor General himself, in his comment filed in the Court of Appeals, admits that the decision
of the COMMISSION did not make any finding of a nuisance [CA Rollo, p. 93]. Apparently, on the basis of
position papers, the COMMISSION assumed the existence of the nuisance, without receiving evidence on the
matter, to support its order for the prevention or abatement of the alleged nuisance.

Moreover, the spouses Ong, were not even party to the proceedings before the COMMISSION which culminated in
the order for the prevention or abatement of the alleged nuisance. The parties before the COMMISSION were
petitioner and PLEASANTVILLE only, although the persons who would be directly affected by a decision
favorable to petitioner would be the Ong spouses. Certainly, to declare their property or the activities being
conducted therein a nuisance, and to order prevention and abatement, without giving them an opportunity to be
heard would be in violation of their basic right to due process.

Thus, we find in this case a complete disregard of the cardinal primary rights in administrative proceedings, which
had been hornbook law since the leading case of Ang Tibay v. Court of Industrial Relations, 69 Phil. 635
(1940).lâwphî1.ñèt

Consequently, the COMMISSION gravely abused its discretion amounting to lack or excess of jurisdiction when it
ordered PLEASANTVILLE to "take appropriate measure for the prevention/abatement of the nuisance complained
of."

2. Petitioner insists that the Ong spouses were not indispensable parties in the case before the
COMMISSION, hence no violation of due process was committed, because the action was
primarily based on PLEASANTVILLE's violation of its contractual and statutory obligations to
petitioner. He advances the view that PLEASANTVILLE breached its warranty that the
subdivision shall be exclusively residential.

In testing the validity of this contention, the following provisions of the printed Contract to Sell on Installment
[Annex "E" of the Petition] between PLEASANTVILLE and petitioner, which petitioner claims to be uniform for all
lot-buyers in the subdivision (but which was not established by evidence in the proceedings before the
COMMISSION), are to be considered:

xxx xxx xxx

12. The Vendee agrees to constitute as permanent lien on the property subject-matter of this
agreement the following conditions and regulations:

a) That the land shall be used exclusively for commercial residential purposes;

xxx xxx xxx

22. That the lot or lots subject-matter of this contract shall be used exclusively for residential
purposes and only one single family residential building will be constructed on each lot provided
that the VENDEE may construct a separate servant's quarter;

xxx xxx xxx

[Rollo, p. 55; Emphasis supplied.]

These provisions of the contract do not unequivocally express a warranty that the subdivision lots shall be used
exclusively for residential purpose. On the contrary, the contract also explicitiy authorizes the use of the lots for
commercial or residential purposes.

Because of the confusing language of items 12 and 22 of the printed contract to sell, it is not possible to read from
the text alone a warranty that the subdivision shall be purely residential. Other evidence of such warranty, including
representations, if any, made by PLEASANTVILLE to petitioner, would be needed to establish its enforceability.

Petitioner also made reference to a "statutory" implied warranty, but failed to cite the provision of law imposing the
warranty. It could not be the Civil Code, as the title on sales provides for only two classes of implied warranties: in
case of eviction and against hidden defects of or encumbrances upon the thing sold [Arts. 1547; 1548-1560; 1561-
1581]. Neither is any warranty imposed by P.D. No. 957.
As the party suing on the basis of breach of warranty, petitioner would have to come up with something better than a
bare assertion that there was a breach. He would have to prove first and foremost that there is indeed a warranty that
had been breached, then establish how the breach was committed.

3. A final word. There is no denying that in instituting the complaint for damages before the trial
court and the complaint for violation of P.D. 957 before the COMMISSION petitioner was
motivated by the twin purposes of seeking the abatement of the alleged nuisance and recovering
damages for the medical problems purportedly caused by the nuisance. He certainly cannot be
faulted for seeking redress in all available venues for the alleged violation of his family home's
tranquility, for the defense of one's home and family is a natural instinct. However, redress for
petitioner's grievances will have to be tempered by the guiding hand of due process. Thus, the
nullification of the assailed portion of the COMMISSION's judgment becomes inevitable if we are
to adhere to the basic tenets of law. A wrong cannot be corrected by another wrong.

Hence, no reversible error was committed by the Court of Appeals when it nullified the assailed portion of the
COMMISSION's decision, the order granting the writ of execution, and any writ of execution issued pursuant
thereto.

But all is not lost for petitioner and his family. As mentioned earlier, there is a pending civil case (Civil Case No.
16113, Regional Trial Court of Negros Occidental), instituted by petitioner, where the alleged breach of warranty,
coupled with PLEASANTVILLE's inaction, is the primary basis for the complaint for abatement and damages. Here
he can prove the existence of the warranty and show how it was breached. It is also in this case where the
determination of whether or not the activities conducted in the property of the Ong spouses or the structures thereat
constitute a nuisance will have to be made. Also herein is the proper forum where, following another theory, it could
be determined whether the Contract to Sell (assuming that the contract between PLEASANTVILLE and the Ongs is
similar) establishes an enforceable obligation in favor of third parties, i.e., other lot-buyers in the subdivision. In said
proceeding the factual issues can be fully threshed out and the Ong spouses, the parties who shall be directly
affected by any adverse judgment, shall be afforded the opportunity to be heard as they had been impleaded as
defendants therein together with PLEASANTVILLE.

WHEREFORE, there being no cogent reasons to reverse the decision of the Court of Appeals, the same is hereby
AFFIRMED and the petition DENIED for lack of merit.

SO ORDERED.

15.

RTC JUDGE CAMILO E. TAMIN, Presiding Judge, Regional Trial Court, Branch 23, Molave, Zamboanga
del Sur and the MUNICIPALITY OF DUMINGAG, ZAMBOANGA DEL SUR; represented by MAYOR
DOMICIANO E. REAL, petitioners,
vs.
COURT OF APPEALS, VICENTE MEDINA and FORTUNATA ROSELLON, respondents.

GUTIERREZ, JR., J.:

The present petition seeks to annul and set aside the decision and resolution dated January 21, 1991 and February
20, 1991, respectively of the Court of Appeals which declared as null and void the October 10, 1991 order of the
petitioner Judge in a civil case "for ejectment with preliminary injunction and damages" filed by petitioner
municipality against the private respondents granting the petitioner municipality's motion for a writ of possession
and the writ issued pursuant to it.
On September 24, 1990, petitioner municipality represented by its mayor Domiciano E. Real filed with the Regional
Trial Court of Zamboanga del Sur, Branch 23, Molave, presided by the petitioner Judge, a complaint denominated as
"Ejectment with Preliminary Injunction and Damages" against respondents Vicente Medina and Fortunata Rosellon.

The complaint alleged that the plaintiff (petitioner municipality herein) is the owner of a parcel of residential land
located at Poblacion, Dumingag, Zamboanga del Sur with an area of 5,894 square meters more or less; that the
parcel of land was reserved for public plaza under Presidential Proclamation No. 365 dated March 15, 1968; that
during the incumbency of the late Mayor Isidoro E. Real, Sr. or in 1958, the municipality leased an Area of 1,350
square meters to the defendants (respondents herein) subject to the condition that they should vacate the place in
case it is needed for public purposes; that the defendants religiously paid the rentals until 1967; that thereafter, the
defendants refused to pay the rentals; that the incumbent mayor discovered that the defendants filed a "Cadastral
Answer" over said lot; that the defendants refused to vacate the place despite efforts of the municipality; that the
national government had alloted an appropriation for the construction of a municipal gymnasium within the public
plaza but the said construction which was already started could not continue because of the presence of the buildings
constructed by the defendants; that the appropriation for the construction of the gymnasium might be reverted back
to the national government which would result to "irreparable damage, injury and prejudice" to the municipality and
its people who are expected to derive benefit from the accomplishment of the project.

The complaint prayed:

1. That a restraining order shall be issued immediately after the filing of this case;

2. That after due notice and hearing, a writ of preliminary mandatory injunction shall be issued
against the herein defendants for them (sic) form further occupying the leased portion to them
(sic), and/or that a Writ of Possession be immediately issued to preserve the rights of the herein
plaintiff;

3. That judgment should be entered against the herein defendants to vacate the premises of the
leased portion given to them. (CA Rollo, pp. 11-12)

On the same day, September 24, 1990, the petitioner Judge issued an order setting the preliminary hearing for the
issuance of a writ of preliminary mandatory injunction and/or writ of possession on October 10, 1990.

Instead of filing an answer, the respondents filed a motion to dismiss alleging the lack of jurisdiction of the trial
court, since the complaint is for illegal detainer which is within the original jurisdiction of the municipal court and
the pendency of a cadastral case (Cadastral Case No. N-10, LRC Cad. Rec. No. N-108, Lot 9481 [Pls-61] TS-218)
between the parties over the ownership of the same parcel of land.

On October 10, 1990, the petitioner Judge issued two (2) orders. The first order denied the motion to dismiss. The
second order granted the petitioner municipality's motion for a writ of possession "with the ancillary writ of
demolition to place in possession the plaintiff on the land subject of this case, to the end that the public construction
thereon will not be jeopardized." (CA Rollo, p. 22)

In denying the motion to dismiss, the petitioner Judge said:

xxx xxx xxx

2. In the complaint, the plaintiff alleges that the defendant is claiming ownership over the land
which was previously rented to defendant by the plaintiff municipality. This action is, therefore,
clearly an accion de reivindicacion, a real action within the jurisdiction of this court.

3. As the complaint is for recovery of ownership of the land not to enforce the contract, the Statute
of Fraud does not apply.
 4. The land subject of this case is covered by P.D. No. 365, withdrawing this land from sale of
settlement and reserving the same for school site purposes under the administration of the Director
of Public School and public plaza under the administration of the Municipality of Dumingag,
therefore the Cadastral court has no jurisdiction over the land involved in this case. (CA Rollo, p.
20)

The petitioner Judge justified his granting the motion for a writ of possession with the ancillary writ of demolition
by applying the rule an eminent domain (Rule 67 of the Revised Rules of Court, erroneously referred to as Rule 68)
in analogy in that under this Rule the complainant is given the right to the writ of possession in order that public
construction and projects will not be delayed. According to the petitioner Judge, the necessity of a writ of possession
is greater in the instant case considering that the parcel of land is covered by a Presidential Proclamation and the on-
going construction thereon is being endangered to be left unfinished on account of the buildings standing on the
parcel of land because the appropriation for the construction might be reverted back to the national treasury.

The private respondents filed an omnibus motion for reconsideration with motion to set aside order and to quash
writ of possession and demolition but this was denied in an order dated October 19, 1990.

On October 19, 1990, the petitioner municipality implemented the writ of possession and ancillary writ of
demolition issued by the petitioner Judge resulting in the dispossession of the private respondents from the parcel of
land and the demolition of structures and buildings thereon owned by the respondents.

On October 23, 1990, the private respondents filed their answer to the complaint alleging therein that the subject
parcel of land has been owned, occupied and possess by respondent Vicente Medina since 1947 when he bought the
subject parcel from a Subanan native; that the other respondent Fortunata Rosellon leased from Medina a portion of
the parcel of land; that the respondents were never lessees of the petitioner municipality; that Proclamation No-365
issued on March 15, 1968 recognized "private rights"; and, that a case is pending before the Cadastral court between
respondent Medina and petitioner municipality as regards the ownership of the subject parcel of land.

Before the petitioner Judge could further act on the case, the private respondents filed a petition for certiorari with
the Court of Appeals questioning the October 10 and October 19, 1990 orders of the petitioner Judge.

In a resolution dated November 14, 1990, the petition was given due course and a temporary restraining order was
issued enjoining the petitioner Judge from proceeding with the hearing of the case and from enforcing the October
10, and 19, 1990 orders.

On January 21, 1990, the appellate court rendered the questioned decision. A motion for reconsideration was denied
in a resolution dated February 20, 1991.

Hence, this petition.

In a resolution dated November 26, 1991, we gave due course to the petition.

The appellate court rightfully upheld the jurisdiction of the Regional Trial Court over the case based on the
allegations in the complaint. The allegations and not the title control the cause of action of the complaint. (Andamo
v. Intermediate Appellate Court, 191 SCRA 195 [1990]).

The Court said:

First, Does the Regional Trial Court have jurisdiction over the case brought by the Municipality of
Dimangag? As already noted, the gist of the complaint below is that the land in question is part of
the public domain which the President of the Philippines, under Proclamation No. 365, dated
March 25, (should be 15) 1968, reserved for school site and public plaza in the Municipality of
Dumingag and that the petitioners, to whom the former town mayor had leased a part of the land,
 refused to vacate and to pay rents. If this is the theory on which the complaint is based, then the
action may really be considered one for recovery of possession. For though a lease is alleged, the
lease would be void and the municipality could recover the possession of the land. This is the
teaching of the leading case of Municipality of Cavite v. Rojas, 30 Phil. 602 [1915] in which it was
held that the lease by a municipal corporation of a public plaza is null and void because land for
public use is outside the commerce of man and, therefore, the lessee must restore possession of the
land by vacating it. As in this case, in the Rojas case the action was for recovery of possession
instituted in the Court of First Instance, the counterpart of which at present is the Regional Trial
Court. We, therefore, hold that the respondent judge has jurisdiction of the case brought against
petitioners for recovery of possession of what is alleged to be land for public use of the respondent
municipality. (CA Rollo, pp. 53-54)

Prescinding from the finding that the complaint is for recovery of possession the appellate court concluded that the
trial court did not have authority to issue a writ of possession and a writ of demolition citing the case of Mabale v.
Apalisok (88 SCRA 234 [1979]), to wit:

In that connection, it should be borne in mind that the law specifies when a writ of possession may
be issued. That writ is available (1) in a land registration proceeding, which is a proceeding in rem
(Sec. 17, Act No. 496; Estipona v. Navarro, 69 SCRA 285, 291); (2) in an extra-judicial
foreclosure of a realty mortgage (Sec. 7, Act No. 3135); (3) in a judicial foreclosure of mortgage, a
quasi in rem proceeding, provided that the mortgagor is in possession of the mortgaged realty and
no third person, not party to the foreclosure suit, had intervened (Rivera v. Court of First Instance
of Nueva Ecija and Rupac, 61 Phil. 201; Ramos v. Mañalac and Lopez, 89 Phil. 270, 275) and (4)
in execution sales (last par. of sec. 35, Rule 39, Rules of Court).

The appellate court also ruled that the trial court committed an error when it applied by analogy the rule on eminent
domain (Rule 67, Revised Rules of Court) to justify the issuance of the writ of possession and writ of demolition.
The appellate court pointed out that under this rule:

xxx xxx xxx

. . . (i) There is clear statutory authority for the taking of possession by the government and (ii)
The authority is premised on the government depositing the value of the land to be taken. For
unless the taking of the land is done under these conditions, the taking would constitute
deprivation of property without due process of law which the Constitution prohibits. (See Manila
Railroad Co. v. Paredes, 31 Phil. 118 [1915]) (CA Rollo, p. 55)

The appellate court then stated:

In the case at bar, there is neither statutory authority for the trial court's action nor bond given to
compensate the petitioners for the deprivation of their possession and the destruction of their
houses if it turns out that the land belongs to them. For this reason, we think the trial courts order
is arbitrary and void. For the fact is that petitioners claim ownership of the land in question and
until that question is resolved either in the case pending before the respondent judge or in the
cadastral proceeding, it would be unjust to deprive petitioners of its possession. (CA Rollo, pp.
55-56)

The petitioners now contend that the allegations in the complaint constitute a cause of action for abatement of public
nuisance under Article 694 of the Civil Code. On the basis of this proposition, the petitioners assert that petitioner
municipality is entitled to the writ of possession and writ of demolition.

Article 694 of the Civil Code defines nuisance as follows:

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

xxx xxx xxx

(5) Hinders or impairs the use of property.

while Article 695 provides:

Art. 695 Nuisance is either public or private. A public nuisance affects a community or
neighborhood or any considerable number of persons, although the extent of the annoyance,
danger or damage upon individuals may be unequal. . . .

Applying these criteria, we agree with the petitioners that the complaint alleges factual circumstances of a complaint
for abatement of public nuisance. Thus, the complaint states: that petitioner municipality is the owner of a parcel of
land covered by Presidential Proclamation No 365 which is reserved for a public plaza; that the private respondents
by virtue of a contract of lease entered into by the former mayor occupied a portion of the parcel of land
constructing buildings thereon; that the private respondents refused to vacate the premises despite demands; that the
municipality is constructing a municipal gymnasium in the area financed by appropriations provided by the national
government; and that the appropriations are in danger of being reverted to the national treasury because the
construction had to be stopped in view of the refusal of the private respondents to vacate the area.

The issue, however, is not the nature of the cause of action alleged in the complaint. The more important question is
whether or not the petitioner municipality is entitled to a writ of possession and a writ of demolition even before the
trial of the case starts.

Article 699 of the Civil Code provides for the following remedies against a public nuisance:

(1) A prosecution under the Penal Code or any local ordinance; or

(2) A civil action; or

(3) Abatement, without judicial proceedings.

The petitioner municipality had three remedies from which to select its cause of action. It chose to file a civil action
for the recovery of possession of the parcel of land occupied by the private respondents. Obviously, petitioner
municipality was aware that under the then Local Government Code (B.P. Blg. 337) the Sangguniang Bayan has to
first pass an ordinance before the municipality may summarily abate a public nuisance. (Sec. 149(z) (ee).

On the premise that the parcel of land forms part of a public plaza, the petitioners now contend that the Judge was
justified in issuing the writ of possession and writ of demolition.

A public plaza is outside the commerce of man and constructions thereon can be abated summarily by the
municipality. We ruled in the case of Villanueva v. Castañeda, Jr. (154 SCRA 142 [1987]):

Exactly in point is Espiritu v. Municipal Council of Pozorrubio, (102 Phil. 869-870) where the
Supreme Court declared:

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

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

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

xxx xxx xxx

The Court observes that even without such investigatiom and recommendation, the respondent
mayor was justified in ordering the area cleared on the strength alone of its status as a public plaza
as declared by the judicial and legislative authorities. . . .

If, therefore, the allegations in the complaint are true and that the parcel of land being occupied by the private
respondents is indeed a public plaza, then the writ of possession and writ of demolition would have been justified. In
fact, under such circumstances, there would have been no need for a writ of possession in favor of the petitioner
municipality since the private respondents' occupation over the subject parcel of land can not be recognized by any
law. A writ of demolition would have been sufficient to eject the private respondents.

However, not only did the municipality avoid the use of abatement without judicial proceedings, but the status of the
subject parcel of land has yet to be decided.

We have to consider the fact that Proclamation No. 365 dated March 15, 1968 recognizes private rights which may
have been vested on other persons, to wit:

BY THE PRESIDENT OF THE PHILIPPINES

PROCLAMATION NO. 365

RESERVING FOR SCHOOL SITE, PUBLIC PLAZA AND PLAYGROUND PURPOSES

CERTAIN PARCELS OF LAND OF THE PUBLIC DOMAIN SITUATED IN THE
MUNICIPALITY OF DUMINGAG, PROVINCE OF ZAMBOANGA DEL SUR, ISLAND OF
MINDANAO.

Upon recommendation of the Secretary of Agriculture and Natural Resources and pursuant to the
authority vested in me by law, I FERDINAND E. MARCOS, PRESIDENT OF THE
PHILIPPINES, do hereby withdraw from sale or settlement and under the administration of the
Director of Public Schools administration of the Municipal Government of Dumingag, subject to
private rights, if any there be, certain parcels of land of the public domain situated in the
Municipality of Dumingag, Province of Zamboanga del Sur, Island of Mindanao, . . . (CA Rollo,
pp. 41-A — 42) (Emphasis supplied).
It is to be noted that even before the Proclamation, the parcel of land was the subject of cadastral proceedings before
another branch of the Regional Trial Court of Zamboanga del Sur. At the time of the filing of the instant case, the
cadastral proceedings intended to settle the ownership over the questioned portion of the parcel of land under
Proclamation No. 365 were still pending. One of the claimants in the cadastral proceedings is private respondent
Vicente Medina who traced his ownership over the subject parcel of land as far back as 1947 when he allegedly
bought the same from a Subanan native.

Under the cadastral system, the government through the Director of Lands initiates the proceedings by filing a
petition in court after which all owners or claimants are compelled to act and present their answers otherwise they
lose their right to their own property. The purpose is to serve the public interests by requiring that the titles to any
lands "be settled and adjudicated." (Section 1 Cadastral Act [No. 22593] Government of the Philippine Islands v.
Abural, 39 Phil. 996 [1919]. It is a proceeding in rem somewhat akin to a judicial inquiry and investigation leading
to a judicial decree. (Director of Lands v. Roman Archbishop of Manila, 41 Phil. 120 [1920])

Considering therefore, the nature and purpose of the Cadastral proceedings, the outcome of said proceedings
becomes a prejudicial question which must be addressed in the resolution of the instant case. We apply by analogy
the ruling in the case of Quiambao v. Osorio (158 SCRA 674 [1988]), to wit:

The instant controversy boils down to the sole question of whether or not the administrative case
between the private parties involving the lot subject matter of the ejectment case constitutes a
prejudicial question which would operate as a bar to said ejectment case.

A prejudicial question is understood in law to be that which arises in a case the resolution of
which is a logical antecedent of the issue involved in said case and the cognizance of which
pertains to another tribunal. (Zapanta v. Montesa, 4 SCRA 510 [1962]; People v. Aragon, 50 O.G.
No. 10, 4863) The doctrine of prejudicial question comes as in to play generally in a situation
where civil and criminal actions are pending and the issues involved in bath cases are similar or so
closely-related that an issue must be pre-emptively resolved in the civil case before the criminal
action can proceed. Thus, the existence it a prejudicial question in a civil case is alleged in the
criminal case to cause the suspension of the latter pending final determination of the former.

The essential elements of a prejudicial question as provided under Section 5, Rule 111 of the
Revised Rules of Court area: [a] the civil action involves an issue similar or intimately related to
the issue in the criminal action; and [b] the resolution of such issue determines whether or not the
criminal action may proceed.

The actions involved in the case at bar being respectively civil and administrative in character, it is
obvious that technically, there is no prejudicial question to speak of. Equally apparent, however, is
the intimate correlation between said two [2] proceedings, stemming from the fact that the right of
private respondents to eject petitioner from the disputed portion depends primarily on the
resolution of the pending administrative case. For while it may be true that private respondents
had prior possession of the lot in question, at the time of the institution of the ejectment case, such
right of possession had been terminated, or at the very least, suspended by the cancellation by the
Land Authority of the Agreement to Sell executed in their favor. Whether or not private
respondents can continue to exercise their right of possession is but a necessary, logical
consequence of the issue involved in the pending administrative case assailing the validity of the
cancellation of the Agreement to Sell and the subsequent award of the disputed portion to
petitioner. If the cancellation of the agreement, to Sell and the subsequent award to petitioner are
voided, then private respondent's right of possession is lost and so would their right to eject
petitioner from said portion.

Faced with these distinct possibilities, the more prudent course for the trial court to have taken is
to hold the ejectment proceedings in abeyance until after a determination of the administrative
case. Indeed, logic and pragmatism, if not jurisprudence, dictate such move. To allow the parties
 to undergo trial notwithstanding the possibility of petitioner's right of possession being upheld in
the pending administrative case is to needlessly require not only the parties but the court as well to
expend time, effort in what may turn out to be a sheer exercise in futility. Thus, 1 Am Jur 2d
tells us:

The court in which an action is pending may, in the exercise of a sound

discretion, upon proper application for a stay of that action, hold the action in
abeyance to abide the outcome of another pending in another court, especially
where the parties and the issues are the same, for there is power inherent in
every court to control the disposition of causes an its dockets with economy of
time and effort for itself, for counsel, and for litigants. Where the rights of
parties in the record action cannot be properly determined until the questions
raised in the first action are settled the second action should be stayed.

While this rule is properly applicable to instances involving two [2] court actions, the existence in
the instant case of the same considerations of identity of parties and issues, economy of time and
effort for the court, the counsels and the parties as well as the need to resolve the parties' right of
possession before the ejectment case may be properly determined, justifies the rule's analogous
application to the case at bar.

Technically, a prejudicial question shall not rise in the instant case since the two actions involved are both civil in
nature. However, we have to consider the fact that the cadastral proceedings will ultimately settle the real owner/s of
the disputed parcel of land. In case respondent Vicente Medina is adjudged the real owner of the parcel of land, then
the writ of possession and writ of demolition would necessarily be null and void. Not only that. The demolition of
the constructions in the parcel of land would prove truly unjust to the private respondents.

Parenthetically, the issuance of the writ of possession and writ of demolition by the petitioner Judge in the ejectment
proceedings was premature. What the petitioner should have done was to stop the proceedings in the instant case and
wait for the final outcome of the cadastral proceedings.

At any rate, affirmative relief based an the above discussions is no longer possible. The demolition of the buildings
owned by the private respondents is now a fait accompli.

In the case of Estate of Gregoria Francisco v. Court of Appeals (199 SCRA 595 [1991] we awarded just
compensation the amount of which was for the trial court to determine in favor of the petitioner whose building was
demolished by the municipality even before a proper tribunal could decide whether or not the building constituted a
nuisance in law. Our ruling was premised on the ground that the owner of the building was in lawful possession of
the lot and the building by virtue of the permit from the authorized government agency when the demolition was
effected.

We cannot, however, apply this ruling to the present case. The legality of the occupation by the private respondents
of the subject parcel of land is still to be resolved in the cadastral proceedings. In the event that respondent Vicente
Medina is declared owner of the subject parcel of land, necessarily, the private respondents would be entitled to just
compensation for the precipitate demolition of their buildings. On the other hand, if private respondent Medina is
declared to have no rights over the subject parcel of land then, the private respondents would not be entitle to any
compensation for the demolition of their buildings. In such a case the private respondents are considered squatters
and therefore, the demolition of their buildings would turnout to have been justified.

Faced with these alternative possibilities, and in the interest of justice, we rule that the petitioner municipality must
put up a bond to be determined by the trial court to answer for just compensation to which the private respondents
may be entitled in case the demolition of their buildings is adjudged to be illegal.

Moreover, the appellate court correctly ruled this Rule 67 of the Revised Rules of Court on eminent domain can not
be made a subterfuge to justify the petitioner Judge's issuance of a writ of possession in favor of petitioner
municipality. In the recent case of National Power Corporation v. Hon. Enrique T. Jocson, et al. (G.R. No. 94193-
99, February 25, 1992) we said:

In Municipality of Biñan v. Hon. Jose Mar Garcia, et al. (180 SCRA 576 [1989]) this Court ruled
that there are two (2) stages in every action of expropriation: —

The first is concerned with the determination of the authority of the plaintiff to
exercise the power of eminent domain and the propriety of its exercise in the
content of the facts involved in the suit. (Citing Sections 1, 2 and 3, Rule 67 of
the Rules of Court.) It ends with an order, if not of dismissal of the action, "of
condemnation declaring that the plaintiff has a lawful right to take the property
sought to be condemned, for the public use or purpose described in the
complaint, upon the payment of just compensation to be determined as of the
date of the filing of the complaint." (Citing Section 4, Rule 67; Nieto v. Isip, 97
Phil. 31; Benguet Consolidated v. Republic, 143 SCRA 466.)An order of
dismissal, if this be ordained, would be a final one, of course, since it finally
disposes of the action and leaves nothing more to be done by the Court on the
merits. (Citing Investments, Inc. v. Court of Appeals, et al., 147 SCRA 334) So,
too, would an order of condemnation on be a final one, for thereafter as the rules
expressly state, in the proceedings before the Trial Court, "no objection to the
exercise of the right of condemnation (or the propriety thereof) shall be filed or
heard.

The second phase of the eminent domain action is concerned with the
determination to the Court of "the just compensation in for the property sought
to be taken." This is done by the Court with the assistance of not more than three
(3) commissioners (Citing Sections 5 to 8, Rule 67 of the Rules of Court) The
order fixing the just compensation on the basis of the evidence before, and
findings of, the commissioners would be final, too. It would finally dispose of
the second stage of the suit, and leave nothing more to be done by the Court
regarding the issue. . . .

However, upon the filing of the complaint or at any time thereafter, the petitioner has the right to
take enter upon the possession of the property involved upon compliance with P.D. No. 42 which
requires the petitioner, after due notice to the defendant, to deposit with the Philippine National
Bank in its main office or any of its branches or agencies, "an amount equivalent to the assessed
value of the property for purposes of taxation." This assessed value is that indicated in the tax
declaration.

Hence, even if we concede that Rule 67 is applicable to the instant case and that petitioner municipality had the
lawful right to eject the private respondents from the subject parcel of land the issuance of a writ of possession in
favor of petitioner municipality would still not be legal if the petitioner municipality really owns the land. The Judge
did not require petitioner municipality to deposit an amount equivalent to the just compensation due the private
respondents as provided for under Presidential Decree 42. It is only after the deposit of the just compensation that
petitioner municipality would be entitled to a writ of possession.

Another point raised by the petitioners questions the alleged ruling of the appellate court "that the petitioners are
personally liable for damages to the private respondents for the abatement of public nuisance." (Rollo, p. 50)

The petitioners misread the appellate court's decision. The records show Chat the private respondents prayed for, in
their petition for certiorari filed with the appellate court, among others:

It is likewise, prayed that respondents be ordered to pay jointly and severally the value of the
house illegally demolished in the amount of P1,000.00 00, attorney's fees in the amount of
 P50,000.00, moral damages in the amount of P100,000.00 and exemplary damages in the amount
of P50,000.00, to pay the costs, . . .

xxx xxx xxx

(CA Rollo, p. 6)

In response to this prayer, however, the appellate court stated:

We do not, however, have jurisdiction over petitioners' claim for damages. This must be pursued
in an appropriate action instituted in the Regional Trial Court. (Rollo, p. 26)

Moreover, the dispositive portion of the decision does not mention any personal liability for damages against the
petitioners. The apprehension of the petitioners lacks factual basis.

WHEREFORE, the instant petition is DISMISSED. The questioned decision and resolution of the Court of Appeals
are AFFIRMED. The trial court is ordered to require the petitioner municipality to put up a bond to be determined
by the court after hearing to answer, for just compensation due the private respondents in case the demolition of
their buildings is adjudged to be illegal. The "Motion to Declare in Contempt" filed by petitioner Judge is referred to
the Regional Trial Court of Pagadian City, Branch 18 in Civil Case No. 3156 for appropriate action.

SO ORDERED.