ALFREDO PATALINGHUG, petitioner,

vs.
HON. COURT OF APPEALS, et al, respondents.
On November 17, 1982, the Sangguniang Panlungsod of Davao City enacted Ordinance No. 363, series
of 1982 otherwise known as the "Expanded Zoning Ordinance of Davao City," Section 8 of which states:
Sec. 8. USE REGULATIONS IN C-2 DISTRICTS (Shaded light red in the
Expanded Zoning Map) AC-2 District shall be dominantly for commercial and
compatible industrial uses as provided hereunder:
xxx xxx xxx
xxx xxx xxx
3.1 Funeral Parlors/Memorial Homes with adequate off street parking space (see
parking standards of P.D. 1096) and provided that they shall be established not
less than 50 meters from any residential structures, churches and other
institutional buildings. (Emphasis provided)
Upon prior approval and certification of zoning compliance by Zoning Administrator issued on February
10, 1987 Building Permit No. 870254 in favor of petitioner for the construction of a funeral parlor in the
name and style of Metropolitan Funeral Parlor at Cabaguio Avenue, Agdao, Davao City.
Thereafter, petitioner commenced the construction of his funeral parlor.
Acting on the complaint of several residents of Barangay Agdao, Davao City that the construction of
petitioner's funeral parlor violated Ordinance No. 363, since it was allegedly situated within a 50-meter
radius from the Iglesia ni Kristo Chapel and several residential structures, the Sangguniang Panlungsod
conducted an investigation and found that "the nearest residential structure, owned by Wilfred G. Tepoot
is only 8 inches to the south. . . . ." 1
Notwithstanding the findings of the Sangguniang Panlungsod, petitioner continued to construct his funeral
parlor which was finished on November 3, 1987.
Consequently, private respondents filed on September 6, 1988 a case for the declaration of nullity of a
building permit with preliminary prohibitory and mandatory injunction and/or restraining order with the trial
court. 2
After conducting its own ocular inspection on March 30, 1989, the lower court, in its order dated July 6,
1989, dismissed the complaint based on the following findings: 3
1. that the residential building owned by Cribillo and Iglesia ni Kristo chapel are
63.25 meters and 55.95 meters away, respectively from the funeral parlor.
2. Although the residential building owned by certain
Mr. Tepoot is adjacent to the funeral parlor, and is only separated therefrom by a
concrete fence, said residential building is being rented by a certain Mr. Asiaten
who actually devotes it to his laundry business with machinery thereon.
Hence, this appeal based on the following grounds:

The Respondent Court of Appeals erred in concluding that the Tepoot building
adjacent to petitioner's funeral parlor is residential simply because it was
allegedly declared as such for taxation purposes, in complete disregard of
Ordinance No. 363 (The Expanded Zoning Ordinance of Davao City) declaring
the subject area as dominantly for commercial and compatible industrial uses.
In the case at bar, the testimony of City Councilor Vergara shows that Mr. Tepoot's building was used for a
dual purpose both as a dwelling and as a place where a laundry business was conducted. 8 But while its
commercial aspect has been established by the presence of machineries and laundry paraphernalia, its
use as a residence, other than being declared for taxation purposes as such, was not fully substantiated.
The reversal by the Court of Appeals of the trial court's decision was based on Tepoot's building being
declared for taxation purposes as residential. It is our considered view, however, that a tax declaration is
not conclusive of the nature of the property for zoning purposes. A property may have been declared by
its owner as residential for real estate taxation purposes but it may well be within a commercial zone. A
discrepancy may thus exist in the determination of the nature of property for real estate taxation
purposes vis-a-vis the determination of a property for zoning purposes.
Needless to say, even if we are to examine the evidentiary value of a tax declaration under the Real
Property Tax Code, a tax declaration only enables the assessor to identify the same for assessment
levels. In fact, a tax declaration does not bind a provincial/city assessor, for under Sec. 22 of the Real
Estate Tax Code, 9 appraisal and assessment are based on the actual use irrespective of "any previous
assessment or taxpayer's valuation thereon," which is based on a taxpayer's declaration. In fact, a piece
of land declared by a taxpayer as residential may be assessed by the provincial or city assessor as
commercial because its actual use is commercial.
The trial court's determination that Mr. Tepoot's building is commercial and, therefore, Sec. 8 is
inapplicable, is strengthened by the fact that the Sangguniang Panlungsod has declared the questioned
area as commercial or C-2. Consequently, even if Tepoot's building was declared for taxation purposes as
residential, once a local government has reclassified an area as commercial, that determination for zoning
purposes must prevail. While the commercial character of the questioned vicinity has been declared thru
the ordinance, private respondents have failed to present convincing arguments to substantiate their
claim that Cabaguio Avenue, where the funeral parlor was constructed, was still a residential zone.
Unquestionably, the operation of a funeral parlor constitutes a "commercial purpose," as gleaned from
Ordinance No. 363.
The declaration of the said area as a commercial zone thru a municipal ordinance is an exercise of police
power to promote the good order and general welfare of the people in the locality. Corollary thereto, the
state, in order to promote the general welfare, may interfere with personal liberty, with property, and with
business and occupations. 10Thus, persons may be subjected to certain kinds of restraints and burdens in
order to secure the general welfare of the state and to this fundamental aim of government, the rights of
the individual may be subordinated. The ordinance which regulates the location of funeral homes has
been adopted as part of comprehensive zoning plans for the orderly development of the area covered
thereunder.
HON. CARLOS O. FORTICH, PROVINCIAL GOVERNOR OF BUKIDNON, et al, respondent,
vs.
HON. RENATO C. CORONA, DEPUTY EXECUTIVE SECRETARY, et al, respondent.
Most specifically, movants are presenting the issue of whether or not the power of the local government
units to reclassify lands is subject to the approval of the Department of Agrarian Reform (DAR).
Regrettably, the issues presented before us by the movants are matters of no extraordinary import to
merit the attention of the Court en banc. Specifically, the issue of whether or not the power of the local

government units to reclassify lands is subject to the approval of the DAR is no longer novel, this having
been decided by this Court in the case of Province of Camarines Sur, et al. vs. Court of Appeals 5 wherein
we held that local government units need not obtain the approval of the DAR to convert or reclassify lands
from agricultural to non-agricuultural use. The dispositive portion of the Decision in the aforecited case
states:
WHEREFORE, the petition is GRANTED and the questioned decision of the
Court of Appeals is set aside insofar as it (a) nullifies the trial court's order
allowing the Province of Camarines Sur to take possession of private
respondents' property; (b) orders the trial court to suspend the expropriation
proceedings; and (c) requires the Province of Camarines Sur to obtain the
approval of the Department of Agrarian Reform to convert or reclassify private
respondents' property from agricultural to non-agricultural use.
But even if we tackle the other issues which the movants describe as "substantial," namely: (1) whether
the subject land is considered a prime agricultural land with irrigation facility; (2) whether the land has
long been covered by a Notice of Compulsory Acquisition (NCA); (3) whether the land is tenanted, and if
not, whether the applicants for intervention are qualified to become beneficiaries thereof; and (4) whether
the Sangguniang Bayan of Sumilao has the legal authority to reclassify the land into industrial/institutional
use, to our mind, the March 29, 1996 OP Decision has thoroughly and properly disposed of the
aforementioned issues. We quote the pertinent portions of the said Decision:
After a careful evaluation of the petition vis-a-vis the grounds upon which the
denial thereof by Secretary Garilao was based, we find that the instant
application for conversion by the Municipality of Sumilao, Bukidnon is impressed
with merit. To be sure, converting the land in question from agricultural to agroindustrial would open great opportunities for employment and bring about real
development in the area towards a sustained economic growth of the
municipality. On the other hand, distributing the land to would-be beneficiaries
(who are not even tenants, as there are none) does not guarantee such benefits.
Nevertheless, on the issue that the land is considered a prime agricultural land
with irrigation facility it may be appropriate to mention that, as claimed by
petitioner, while it is true that there is indeed, an irrigation facility in the area, the
same merely passes thru the property (as a right of way) to provide water to the
ricelands located on the lower portion thereof. The land itself, subject of the
instant petition, is not irrigated as the same was, for several years, planted with
pineapple by the Philippine Packing Corporation.
On the issue that the land has long been covered by a Notice of Compulsory
Acquisition (NCA) and that the existing policy on withdrawal or lifting on areas
covered by NCA is not applicable, suffice it to state that the said NCA was
declared null and void by the Department of Agrarian Reform Adjudication Board
(DARAB) as early as March 1, 1992. Deciding in favor of NQSRMDC, the
DARAB correctly pointed out that under Section 8 of R.A. No. 6657, the subject
property could not validly be the subject of compulsory acquisition until after the
expiration of the lease contract with Del Monte Philippines, a multi-National
Company, or until April 1994, and ordered the DAR Regional Office and the Land
Bank of the Philippines, both in Butuan City, to desist from pursuing any activity
or activities covering petitioner's land.
On this score, we take special notice of the fact that the Quisumbing family has
already contributed substantially to the land reform of the government, as follows:
300 hectares of rice land in Nueva Ecija in the 70's and another 100 hectares in

the nearby Municipality of Impasugong, Bukidnon, ten (10) years ago, for which
they have not received "just compensation" up to this time.
Neither can the assertion that "there is no clear and tangible compensation
package arrangements for the beneficiaries" hold water as, in the first place,
there are no beneficiaries to speak about, for the land is not tenanted as already
stated.
Nor can procedural lapses in the manner of identifying/reclassifying the subject
property for agro-industrial purposes be allowed to defeat the very purpose of the
law granting autonomy to local government units in the management of their local
affairs. Stated more simply, the language of Section 20 of R.A. No. 7160, supra,
is clear and affords no room for any other interpretation. By unequivocal legal
mandate, it grants local governments units autonomy in their local affairs
including the power to convert portions of their agricultural lands and provide for
the manner of their utilization and disposition to enable them to attain their fullest
development as self-reliant communities.
WHEREFORE, in pursuance of the spirit and intent of the said legal mandate
and in view of the favorable recommendations of the various government
agencies abovementioned, the subject Order, dated November 14, 1994 of the
Hon. Secretary, Department of Agrarian Reform, is hereby SET ASIDE and the
instant application of NQSRMDC/BAIDA is hereby APPROVED. 23 (Emphasis
supplied)
The interest of justice is invoked by movants. We are aware of that famous adage of the late. President
Ramon Magsaysay that "those who have less in life should have more in law." Our affirmation of the
finality of the March 29, 1996 OP Decision is precisely pro-poor considering that more of the impoverised
members of society will be benefited by the agro-economic development of the disputed land which the
province of Bukidnon and the municipality of Sumilao, Bukidnon intend to undertake. To our mind, the OP
Decision of March 29, 1996 was for the eventual benefit of the many, no just of the few. This is clearly
shown from the development plan on the subject land as conceived by the petitioners. The said plan is
supposed to have the following components as indicated in the OP Decision of March 29, 1996:
1. The Development Academy of Mindanao which constitutes the following:
Institute for Continuing Higher Education; Institute for Livelihood Science
(Vocational and Technical School); Institute for Agribusiness Research; Museum,
Library, Cultural Center, and Mindanao Sports Development Complex which
covers an area of 24 hectares;
2. Bukidnon Agro-Industrial Park which consists of corn processing for corn oil,
corn starch, various corn products; rice processing for wine, rice-based snacks,
exportable rice; cassava processing for starch, alcohol and food delicacies;
processing plants, fruits and fruit products such as juices; processing plants for
vegetables processed and prepared for market; cold storage and ice plant;
cannery system; commercial stores; public market; and abattoir needing about
67 hectares;
3. Forest development which includes open spaces and parks for recreation,
horse-back riding, memorial and mini-zoo estimated to cover 33 hectares; and
4. Support facilities which comprise the construction of a 360-room hotel,
restaurants, dormitories and a housing project covering an area of 20 hectares. 25

Expressing full support for the proposed project, the Sangguniang Bayan of Sumilao, Bukidnon, on March
4, 1993, enacted Ordinance No. 24 converting or re-classifying the subject 114-hectare land from
agricultural to industrial/institutional use with a view of providing an opportunity to attrack investors who
can inject new economic vitality, provide more jobs and raise the income of its people. The said project
was also supported by the Bukidnon Provincial Board which, on the basis of a Joint Committee Report
submitted by its Committee on Laws, Committee on Agrarian Reform and Socio-Economic Committee,
approved the said ordinance on February 1, 1994, now docketed as Resolution No. 94-95.
Impressed with the proposed project, several government agencies and a private cooperative, including
the people of the affected barangay, recommended the same.
In this regard, the petitioners gave this assurance: "The proposed project is petitioners' way of helping
insure food, shelter and lifetime security of the greater majority of Sumilao's 22,000 people. It is capable
of employing thousands of residents, enabling them to earn good income ranging about P40,000.00 to
P50,000.00 for each. 27
NICOLAS LAYNESA and SANTOS LAYNESA, petitioners,
vs.
PAQUITO and PACITA UY, respondents.
In 1938, Robert Morley was the owner of a four (4)-hectare parcel of land in Barrio Tagbong, Pili,
Camarines Sur. Petitioner Santos Laynesa was his tenant over two and a half (2 ) hectares of the land.
In 1947, Morley sold the 4 has. to Sixto Cuba, Sr. He maintained Santos as the tenant over the 2 hectare portion while instituting petitioner Nicolas Laynesa, son of Santos, as his tenant over the
remainder of the property. On May 20, 1974, Original Certificate of Title No. 1660 on the property was
issued to Cuba, Sr.1
On October 25, 1979, Cuba, Sr. died intestate, survived by his children, Sixto Cuba, Jr., Carmelita Cuba
Sunga, and Bienvenido Cuba. Santos and Nicolas continued as tenants, and delivered the owner's share
of the produce to Cuba, Jr. and Bienvenido.2
On January 13, 1993, Cuba, Jr. executed a Deed of Absolute Sale of Unregistered Land, transferring the
property to respondent Pacita Uy, married to respondent Paquito Uy, in consideration of PhP 80,000.
Cuba, Jr. was named owner of the land. Notably, the Deed was not registered with the Register of Deeds.
Later, Cuba, Jr. executed a Deed of Assignment or Transfer of Rights of the undelivered owner's share of
the produce in favor of Pacita.
On July 13, 1993, Pacita demanded that the Laynesas vacate the land. She claimed that she had
purchased the land. The Laynesas asked for proof of Pacita's acquisition, but she could not produce any.
Subsequently, Pacita returned and again demanded that the Laynesas vacate the property, this time
exhibiting the Deed of Absolute Sale of Unregistrered Land signed by Cuba, Jr. Consequently, the
Laynesas filed on October 13, 1993 a petition against Pacita with the Department of Agrarian Reform
Adjudication Board (DARAB), docketed as DARAB Case No. 730 for Legal Redemption entitled Santos
Laynesa, et al. v. Paquito Uy. The Laynesas primarily sought that they be allowed to redeem the land
from Pacita.3
Thereafter, on November 25, 1993, Pacita filed a complaint docketed as DARAB Case No. 745 entitled
Pacita Uy v. Santos Laynesa, et al. for Collection of Rentals and Ejectment against the Laynesas with the
DARAB.
The pivotal issue in this case is whether the reclassification of a lot by a municipal ordinance, without the
Department of Agrarian Reform's (DAR's) approval, suffices to oust the jurisdiction of the DARAB over a
petition for legal redemption filed by the tenants.

There is no question that petitioners-Laynesas are the tenants of the previous owner of the land. As such,
disputes pertaining to the land tenancy were within the jurisdiction of the DAR. However, respondentsspouses Uy posit that after the issuance of Municipal Council Resolution No. 67, reclassifying the land on
May 29, 1995, the land ceased to be agricultural and is therefore beyond the jurisdiction of the DARAB.
Previously, under Republic Act No. (RA) 3844, all agrarian disputes fell within the exclusive jurisdiction of
the Court of Agrarian Relations. Later, the jurisdiction over such disputes went to the RTCs. 11 When RA
6657, otherwise known as the Comprehensive Agrarian Reform Law, took effect on June 15, 1988, the
adjudication of agrarian reform disputes was placed under the jurisdiction of the DAR.
However, Section 56 of RA 6657 vested original and exclusive jurisdiction over controversies involving the
determination of just compensation and prosecution of all criminal offenses arising from violations of RA
6657 to RTCs designated as Special Agrarian Courts.
From the cited legal provisions, it cannot be disputed that the DAR, through the DARAB, shall exercise
quasi-judicial functions and has exclusive original jurisdiction over all disputes involving the enforcement
and implementation of all agrarian reform laws.
Sec. 4 of RA 6657 tells us which lands are covered by the Comprehensive Agrarian Reform Program,
thus:
Section 4. Scope.-The Comprehensive Agrarian Reform Law of 1988 shall cover;
regardless of tenurial arrangement and commodity produced, all public and private
agricultural lands as provided in Proclamation No. 131 and Executive Order No.
229, including other lands of the public domain suitable for agriculture. (Emphasis
supplied.)
However, in 1991, RA 7160 or the Local Government Code was passed into law, granting local
government units the power to reclassify land. Being a later law, RA 7160 shall govern in case of conflict
between it and RA 6657, as to the issue of reclassification.
Pursuant to RA 7160, then President Fidel Ramos issued Memorandum Circular No. (MC) 54 on June 8,
1993, providing the guidelines in the implementation of the above Sec. 20 of the Local Government Code.
Prior to the enactment of an ordinance reclassifying agricultural lands as provided under
Sec. 1 hereof, the sanggunian concerned must first secure the following certificates
[from] the concerned national government agencies (NGAs):
(1) A certification from DA indicating (i) the total area of existing agricultural lands in the LGU concerned;
(ii) that which lands are not classified as non-negotiable for conversion or
reclassification under AO 20 (1992); and
(iii) that the land ceases to be economically feasible and sound for agricultural
purposes in the case of Sec. 1 (b-1).
(2) A certification from DAR indicating that such lands are not distributed or not covered
by a notice of coverage or not voluntarily offered for coverage under CARP.
(c) The HLRB shall serve as the coordinating agency for the issuance of the certificates
as required under the preceding paragraph. All applications for reclassification shall,

therefore, be submitted by the concerned LGUs to the HLRB, upon receipt of such
application, the HLRB shall conduct initial review to determine if:
(1) the city or municipality concerned has an existing comprehensive land use plan
reviewed and approved in accordance with EO 72 (1993); and
(2) the proposed reclassification complies with the limitations prescribed in SECTION 1
(d) hereof.
Upon determination that the above conditions have been satisfied, the HLRB shall then
consult with the concerned agencies on the required certifications. The HLRB shall inform
the concerned agencies, city or municipality of the result of their review and consultation.
If the land being reclassified is in excess of the limit, the application shall be submitted to
NEDA.
Failure of the HLRB and the NGAs to act on a proper and complete application within
three months from receipt of the same shall be deemed as approved thereof.
(d) Reclassification of agricultural lands may be authorized through an ordinance enacted
by the sangguniang panlungsod or sangguniang bayan, as the case may be, after
conducting public hearings for the purpose. Such ordinance shall be enacted and
approved in accordance with Articles 107 and 108 of the IRR of the LGC.
(e) Provisions of Sec. 1 (b-2) hereof to the contrary notwithstanding, the sanggunian
concerned shall seek the advice of DA prior to the enactment of an ordinance
reclassifying agricultural lands. If the DA has failed to act on such request within thirty
(30) days from receipt thereof, the same shall be deemed to have been complied with.
Should the land subject to reclassification is found to be still economically feasible for
agriculture, the DA shall recommend to the LGU concerned alternative areas for
development purposes.
(f) Upon issuance of the certifications enumerated in Section 2 (b) hereof, the
sanggunian concerned may now enact an ordinance authorizing the
reclassification of agricultural lands and providing for the manner of their
utilization or disposition. Such ordinance shall likewise update the comprehensive
land use plans of the LGU concerned. (Emphasis supplied.)
It is because of the authority granted to a city or municipality by Sec. 20 of RA 7160 coupled with the
implementing guidelines laid down in MC 54 dated June 8, 1993 that the CA was convinced to rule that
the disputed lot is no longer agricultural but industrial land and, hence, the DARAB does not have or has
lost jurisdiction over the subject matter of DARAB Case No. V-RC-028.
This position is incorrect.
Despite the reclassification of an agricultural land to non-agricultural land by a local government unit
under Sec. 20 of RA 7160, the DARAB still retains jurisdiction over a complaint filed by a tenant of the
land in question for threatened ejectment and redemption for the following reasons:
(1) Jurisdiction is determined by the statute in force at the time of the commencement of the
action.12 Likewise settled is the rule that jurisdiction over the subject matter is determined by the
allegations of the complaint.13 DARAB Case No. V-RC-028 was filed by the tenants of an agricultural land
for threatened ejectment and its redemption from respondents. It cannot be questioned that the

averments of the DARAB case clearly pertain to an agrarian reform matter and involve the
implementation of the agrarian reform laws. Such being the case, the complaint falls within the jurisdiction
of the DARAB under Sec. 50 of RA 6657 on the quasi-judicial powers of the DAR. It bears stressing that
the DAR has primary jurisdiction to determine and adjudicate agrarian reform matters and shall have
exclusive original jurisdiction over all matters involving the implementation of the agrarian reform except
those falling under the exclusive jurisdiction of the Department of Agriculture (DA) and the Department of
Environment and Natural Resources (DENR). Primary jurisdiction means in case of seeming conflict
between the jurisdictions of the DAR and regular courts, preference is vested with the DAR because of its
expertise and experience in agrarian reform matters. Sec. 50 is also explicit that except for the DA and
DENR, all agrarian reform matters are within the exclusive original jurisdiction of the DAR.
(2) Sec. 20(e) of RA 7160 is unequivocal that nothing in said section shall be construed "as repealing,
amending or modifying in any manner the provisions of [RA] 6657." As such, Sec. 50 of RA 6657 on
quasi-judicial powers of the DAR has not been repealed by RA 7160.
In view of the foregoing reasons, we rule that the DARAB retains jurisdiction over disputes arising from
agrarian reform matters even though the landowner or respondent interposes the defense of
reclassification of the subject lot from agricultural to non-agricultural use.
On the issue of whether there has been a valid reclassification of the subject lot to industrial land, we rule
that respondents failed to adduce substantial evidence to buttress their assertion that all the conditions
and requirements set by RA 7160 and MC 54 have been satisfied.
Respondent Pacita only procured a MARO certification that the property was not prime agricultural
property. The MARO certified that the land was not covered by the OLT under PD 27. These two
certifications will not suffice for the following reasons:
(1) Sec. 20 of RA 7160 requires submission of the recommendation or certification from the DA that the
land ceases to be economically feasible or sound for agricultural purposes. In this case, the MAO
certification attests only that the lot is no longer "prime agricultural property."
(2) Sec. 20 requires a certification from the DAR that the land has not yet been distributed to beneficiaries
under RA 6657 which took effect on June 15, 1988 nor covered by a notice of coverage. In the case at
bar, the MARO certification which pertains only to PD 27 does not suffice.
(3) Respondents have not shown any compliance with Sec. 2 of MC 54 on the additional requirements
and procedures for reclassification such as the Housing and Land Use Regulatory Board's report and
recommendation, the requisite public hearings, and the DA's report and recommendation.
Based on the foregoing reasons, respondents have failed to satisfy the requirements prescribed in Sec.
20 of RA 7160 and MC 54 and, hence, relief must be granted to petitioners.
Landowners must understand that while RA 7160, the Local Government Code, granted local government
units the power to reclassify agricultural land, the stringent requirements set forth in Sec. 30 of said Code
must be strictly complied with. Such adherence to the legal prescriptions is found wanting in the case at
bar.
AYALA LAND, INC. and CAPITOL CITIFARMS, INC., Petitioners,
vs.
SIMEONA CASTILLO, et al, Respondents.
CCFI owned two parcels of land with a total area of 221.3048 hectares located at Barangay Tibig in
Silang, Cavite hereon referred to as the subject land. The subject land was mortgaged in favor of one of

CCFIs creditors, MBC. Pursuant to Resolution No. 505 of the Monetary Board of the Bangko Sentral ng
Pilipinas (BSP), MBC was placed under receivership on 22 May 1987, in accordance with Section 29 of
the Central Bank Act (Republic Act 265). Pursuant to this law, the assets of MBC were placed in the
hands of its receiver under custodia legis.3 On 29 September 1989, the DAR issued a Notice of Coverage
placing the property under compulsory acquisition under the Comprehensive Agrarian Reform Law of
1988.4
In the meantime, CCFI was unable to comply with its mortgage obligations to MBC. The latter foreclosed
on the lien, and the land was awarded to it in an auction sale held on 4 January 1991. The sale was duly
annotated on the titles as Entry No. 5324-44. Subsequently, the Supreme Court in G.R. No. 85960
ordered MBCs partial liquidation and allowed the receiver-designate of the BSP to sell the banks assets,
including the subject landholding, "at their fair market value, under the best terms and condition and for
the highest price under current real estate appraisals..." 5 In a Deed of Partial Redemption,6 CCFI was
authorized to partially redeem the two parcels of land and sell them to a third party, pending full payment
of the redemption price. Under the Deed, the downpayment, which was 30% of the purchase price, would
be payable to the bank only upon approval of the exemption of the two parcels of land from the coverage
of CARL or upon their conversion to non-agricultural use.
On the same date as the execution of the Deed of Partial Redemption, 29 December 1995, the property
was sold to petitioner ALI in a Deed of Sale over the properties covered by TCT Nos. 128672 and
144245. The sale was not absolute but conditional, i.e. subject to terms and conditions other than the
payment of the price and the delivery of the titles. The Deed stated that MBC was to continue to have
custody of the corresponding titles for as long as any obligation remained due it.
Prompted by the numerous proceedings for compulsory acquisition initiated by the DAR against MBC,
Governor Reyes requested then DAR Secretary Ernesto Garilao to issue an order exempting the
landholdings of MBC from CARL and to declare a moratorium on the compulsory acquisition of MBCs
landholdings. On 14 February 1995, Secretary Garilao denied the request. On 1 August 1995, MBC and
Governor Reyes filed with the OP a Petition for Review of Secretary Garilaos Decision. The OP issued a
Stay Order of the appealed Decision. Thereafter, MBC filed with the OP a motion for the issuance of an
order granting the former a period of five years within which to seek the conversion of its landholdings to
non-agricultural use.
Instead of ruling on the motion alone, however, the OP, through Executive Secretary Ruben D. Torres,
decided to rule on the merits of the petition, as "what is involved in this case is the susceptibility of a bank
to undergo rehabilitation which will be jeopardized by the distribution of its assets" 7 Secretary Torres
remanded the case to the DAR and ordered the agency to determine which parcels of land were exempt
from the coverage of the CARL. He stated that the ends of justice would be better served if BSP were
given the fullest opportunity to monetize the banks assets that were outside the coverage of CARL or
could be converted into non-agricultural uses. He then ordered the DAR to respect the BSPs temporary
custody of the landholdings, as well as to cease and desist from subjecting MBCs properties to the CARL
or from otherwise distributing to farmer-beneficiaries those parcels of land already covered. 8
Secretary Torres denied the Motion for Reconsideration filed by the DAR. He reiterated the need to
balance the goal of the agrarian reform program vis--vis the interest of the bank (under receivership by
the BSP), and the banks creditors (85% of whose credit, or a total of P8,771,893,000, was payable to
BSP).9
Secretary Garilao issued a Resolution dated 3 October 1997, granting MBCs "Request for Clearance to
Sell," with the sale to be undertaken by CCFI. He applied Section 73-A of Republic Act No. (R.A.) 6657,
as amended by R.A. 7881, that allows the sale of agricultural land where such sale or transfer is
necessitated by a banks foreclosure of a mortgage. DAR Memorandum Circular No. 05, Series of 1996
further clarified the above provision, stating that foreclosed assets are subject to existing laws on their
compulsory transfer under Section 16 of the General Banking Act. CCFI thereafter filed an application for

conversion and/or exemption pursuant to its prerogative as a landowner under Part IV of DAR A.O. 12-94
and the procedure outlined therein.
On 31 October 1997, Secretary Garilao issued Conversion Order No. 4-97-1029-051, approving the
conversion and/or exemption of the 221-hectare property in Silang, based on the findings of the DARs
Center for Land Use Policy, Planning and Implementation (CLUPPI) and of the Municipal Agrarian Reform
Officer (MARO). These agencies found that the property was exempt from agrarian reform coverage, as it
was beyond eighteen (18) degrees in slope. They recommended conversion, subject to the submission of
several documentary requirements. On 1 December 1997, CCFI complied by submitting the following
groups of documents:
1. A Certification and a copy of Resolution No. 295-S-96 by the Sangguniang
Panlalawigan of Cavite, adopted in its 4th Special Session, approving the conversion/
reclassification of the said parcels of land from agricultural to residential, commercial, and
industrial uses;
2. A copy of Resolution No. ML-08-S-96 adopted by the Sangguniang Bayan of Silang,
recommending conversion based on the favorable findings by the Committee on Housing
and Land Use;10
3. Statement of Justification of economic/social benefits of the proposed subdivision
project; development plan, work and financial plan and proof of financial and
organizational capability;
4. Proof of settlement of claims: a table of the list of tenant-petitioners, the area tilled and
the amount of compensation received by each tenant, the Kasunduan, 11 and a
compilation of the agreements signed by the one hundred and eighteen (118) tenants
waiving all claims over the property.12
The Morales Order Revoking the Grant of Conversion
On 19 May 2000, almost three years after the Conversion Order had been in force and effect, the farmers
tilling the subject land (hereinafter known as farmers) filed a Petition for Revocation of Conversion Order
No. 4-97-1029-051. They alleged (1) that the sale in 1995 by CCFI to ALI was invalid; and (2) that CCFI
and ALI were guilty of misrepresentation in claiming that the property had been reclassified through a
mere Resolution, when the law required an ordinance of the Sanggunian. 13 The issue of the alleged
Notice of Acquisition was never raised. Neither was there any mention of the issuance of a Notice of
Coverage.
Secretary Morales never passed upon or even mentioned any matter related to the Notice of Acquisition.
The gist of both the Petition for Revocation and the Morales Decision revolved exclusively around the
illicit intent behind the sale of the land to ALI:
The gravamen of respondents acts lies not upon the sale by respondent Capitol of the land to ALI, and
upon ALI having bought the land from Capitol. It lies somewhere deeper: that the sale was done as early
as 1995 prior to the lands conversion, and was concealed in the application until it was registered in
1999.

At the time of the registration of the deed on 29 September 1999, the subject land had ceased to be an
agricultural land since it has already been converted to other uses by virtue of an approved conversion

application. As such, the requirement of reporting by the Register of Deeds of any transaction involving
agricultural lands beyond five (5) hectares, was not made as it is no longer necessary.14
It is important to note, however, that Secretary Morales declared that CCFI and ALI had completed the
payment of disturbance compensation to the farmers, as shown by the Kasunduan, which was a waiver of
all the farmers rights over the landholding, and by the Katunayan ng Pagbabayad, which expressly
acknowledged the amounts paid as the full and final settlement of their claims against CCFI and ALI.
The Braganza Order Reversing the Revocation
On 26 September 2002, acting on the Motion for Reconsideration filed by ALI, DAR Secretary Hernani
Braganza reversed15 the Revocation of Conversion Order 4-97-1029-051. He resolved three issues to
arrive at his Decision, namely: 1) whether the Petition for Revocation had prescribed; 2) whether ALI was
the owner of the subject landholding at the time of the application; and 3) whether there was complete
payment of the disturbance compensation. Again, Secretary Braganza was not afforded an opportunity to
discuss any evidence related to the existence or effect of any Notice of Acquisition, as the joinder of
issues was limited to those already summarized above.
Secretary Braganza found that the Deed of Partial Redemption was conditional, and that there was no
transfer of ownership to CCFI or its successor-in-interest, ALI. Hence, there could be no violation of the
CARL arising from an unauthorized transfer of the land to ALI. In fact, the obligation of ALI to pay the
purchase price did not arise until the DARs issuance of an order of exemption or conversion.
The Pagdanganan Order Declaring FINALITY
Secretary Roberto Pagdanganan issued an Order on 13 August 2003, denying the farmers Motion for
Reconsideration and affirming the finality of the Braganza Order.
Petitioners Appeal before the Office of the President
The farmers then went to the OP and raised only two issues:
The Secretary of Agrarian Reform erred in declaring herein counsel to have no more locus standi to
represent the farmer-petitioners.
The Secretary of Agrarian Reform erred in affirming the Order of 26 September 2002 issued by then
Secretary Hernani Braganza.20
I. Respondents raised a new issue for the first time on appeal.
The CA found the Conversion Order valid on all points, with the sole exception of the effect of the alleged
issuance of a Notice of Acquisition. In its eight-page Decision, the CA merely asserted in two lines: "no
less than the cited DAR Administrative Order No. 12 enjoins the conversion of lands directly under a
notice of acquisition."24
After perusing the records of the DAR and the OP, however, we find no admissible proof presented to
support this claim. What was attached to the Petition for Review25 to the CA was not a Notice of
Acquisition, but a mere photocopy of the Notice of Coverage. A Notice of Acquisition was never offered in
evidence before the DAR and never became part of the records even at the trial court level. Thus, its
existence is not a fully established fact for the purpose of serving as the sole basis the entire history of the
policy decisions made by the DAR and the OP were to be overturned. The CA committed reversible error
when it gave credence to a mere assertion by the tenant-farmers, rather than to the policy evaluation
made by the OP.

Assuming arguendo however, that the farmers had submitted the proper document to the appellate court,
the latter could not have reversed the OP Decision on nothing more than this submission, as the issue of
the Notice of Acquisition had never been raised before the administrative agency concerned.
Considering that these issues involve an evaluation of the DARs findings of facts, this Court is
constrained to accord respect to such findings. It is settled that factual findings of administrative agencies
are generally accorded respect and even finality by this Court, if such findings are supported by
substantial evidence. The factual findings of the Secretary of DAR who, by reason of his official position,
has acquired expertise in specific matters within his jurisdiction, deserve full respect and, without
justifiable reason, ought not to be altered, modified or reversed. 30
Provision in DAR A.O. 12-94 is only a guiding principle.
Assuming for a moment that the notice of acquisition exists, it is not an absolute, perpetual ban on
conversion. The provision invoked in AO 12-94, paragraph E, disallows applications for conversion of
lands for which the DAR has issued a notice of acquisition. But paragraph E falls under heading VI,
"Policies and Guiding Principles." By no stretch of the imagination can a mere "principle" be interpreted as
an absolute proscription on conversion. Secretary Garilao thus acted within his authority in issuing the
Conversion Order, precisely because the law grants him the sole power to make this policy judgment,
despite the "guiding principle" regarding the notice of acquisition. The CA committed grave error by
favoring a principle over the DARs own factual determination of the propriety of conversion. The CA
agreed with the OP that land use conversion may be allowed when it is by reason of changes in the
predominant use brought about by urban development, but the appellate court invalidated the OP
Decision anyway for the following reason:
The argument is valid if the agricultural land is still not subjected to compulsory acquisition under CARP.
But as we saw, there has already been a notice of coverage and notice of acquisition issued for the
property...Verily, no less than the cited DAR Administrative Order No. 12 enjoins conversions of lands
already under a notice of acquisition. The objectives and ends of economic progress must always be
sought after within the framework of the law, not against it, or in spite of it. 31
However, under the same heading VI, on Guiding Principles, is paragraph B (3), which reads:
If at the time of the application, the land still falls within the agricultural zone, conversion shall be allowed
only on the following instances:
a) When the land has ceased to be economically feasible and sound for agricultural
purposes, as certified by the Regional Director of the Department of Agriculture (DA) or
b) When the locality has become highly urbanized and the land will have a greater
economic value for residential, commercial and industrial purposes, as certified by the
local government unit.
The thrust of this provision, which DAR Secretary Garilao rightly took into account in issuing the
Conversion Order, is that even if the land has not yet been reclassified, if its use has changed towards the
modernization of the community, conversion is still allowed.
As DAR Secretary, Garilao had full authority to balance the guiding principle in paragraph E against that
in paragraph B (3) and to find for conversion. Note that the same guiding principle which includes the
general proscription against conversion was scrapped from the new rules on conversion, DAR A.O. 1,
Series of 2002, or the "Comprehensive Rules on Land Use Conversion." It must be emphasized that the
policy allowing conversion, on the other hand, was retained. This is a complex case in which there can be
no simplistic or mechanical solution. The Comprehensive Agrarian Reform Law is not intractable, nor
does it condemn a piece of land to a single use forever. With the same conviction that the state promotes

rural development,32 it also "recognizes the indispensable role of the private sector, encourages private
enterprise, and provides incentives to needed investments." 33
Respondents herein muddle the issue in contending that a Sangguniang Bayan Resolution was not a
sufficient compliance with the requirement of the Local Government Code that an ordinance must be
enacted for a valid reclassification. Yet there was already a Conversion Order. To correct a situation in
which lands redeemed from the MBC would remain idle, petitioners took the route of applying for
conversion. Conversion and reclassification are separate procedures. 34 CCFI and ALI submitted the two
Resolutions to the DAR (one issued by the Sangguniang Bayan of Silang, the other by the Sangguniang
Panlalawigan of Cavite) only as supporting documents in their application.
Again, paragraph B (3), Part VI of DAR AO 12-94, cited above, allows conversion when the land will have
greater economic value for residential, commercial or industrial purposes "as certified by the Local
Government Unit." It is clear that the thrust of the community and the local government is the conversion
of the lands. To this end, the two Resolutions, one issued by the Sangguniang Bayan of Silang, the other
by the Sangguniang Panlalawigan of Cavite, while not strictly for purposes of reclassification, are
sufficient compliance with the requirement of the Conversion Order.
Paragraph E and paragraph B (3) were thus set merely as guidelines in issues of conversion. CARL is to
be solely implemented by the DAR, taking into account current land use as governed by the needs and
political will of the local government and its people. The palpable intent of the Administrative Order is to
make the DAR the principal agency in deciding questions on conversion. A.O. 12-94 clearly states:
A. The Department of Agrarian Reform is mandated to "approve or disapprove
applications for conversion, restructuring, or readjustment of agricultural lands into nonagricultural uses," pursuant to Section 4 (j) of Executive Order No. 129-A, Series of
1987."
B. Section 5 (1) of E.O. No. 129-A, Series of 1987, vests in the DAR, exclusive authority
to approve or disapprove applications for conversion of agricultural lands for residential,
commercial, industrial, and other land uses.35
Section 21. Closure and Opening of Roads. (a) A local government unit may, pursuant to an ordinance, permanently or temporarily
close or open any local road, alley, park, or square falling within its jurisdiction: Provided,
however, That in case of permanent closure, such ordinance must be approved by at
least two-thirds (2/3) of all the members of the sanggunian, and when necessary, an
adequate substitute for the public facility that is subject to closure is provided.
(b) No such way or place or any part thereof shall be permanently closed without making
provisions for the maintenance of public safety therein. A property thus permanently
withdrawn from public use may be used or conveyed for any purpose for which other real
property belonging to the local government unit concerned may be lawfully used or
conveyed: Provided, however, That no freedom park shall be closed permanently without
provision for its transfer or relocation to a new site.
(c) Any national or local road, alley, park, or square may be temporarily closed during an
actual emergency, or fiesta celebrations, public rallies, agricultural or industrial fairs, or an
undertaking of public works and highways, telecommunications, and waterworks projects,
the duration of which shall be specified by the local chief executive concerned in a written
order: Provided, however, That no national or local road, alley, park, or square shall be
temporarily closed for athletic, cultural, or civic activities not officially sponsored,
recognized, or approved by the local government unit concerned.

(d) Any city, municipality, or barangay may, by a duly enacted ordinance, temporarily
close and regulate the use of any local street, road, thoroughfare, or any other public
place where shopping malls, Sunday, flea or night markets, or shopping areas may be
established and where goods, merchandise, foodstuffs, commodities, or articles of
commerce may be sold and dispensed to the general public.
RULE VIII
Closure and Opening of Roads or Parks
ARTICLE 43. Authority to Close or Open. An LGU may, through an ordinance, permanently or
temporarily close or open any road, alley, park, or square within its jurisdiction.
ARTICLE 44. Permanent Closure. (a) No permanent closure of any local road, street, alley, park, or
square shall be affected unless there exists a compelling reason or sufficient justification therefor such as,
but not limited to, change in land use, establishment of infrastructure facilities, projects, or such other
justifiable reasons as public welfare may require.
(b) When necessary, an adequate substitute for the public facility that is subject to closure shall be
provided. No freedom park shall be closed permanently without provision for its transfer or relocation to a
new site.
(c) No such way or place or any part thereof shall be permanently closed without making provisions for
the maintenance of public safety therein.
(d) A property permanently withdrawn from public use may be used or conveyed for any purpose for
which other real property belonging to LGU may be lawfully used or conveyed.
(e) The ordinance authorizing permanent closure must be approved by at least two-thirds (2/3) of all
members of the sanggunian. Public hearings shall first be conducted before any ordinance authorizing
permanent closure of any local roads, alley, park, or square is enacted. Notices of such hearings and
copies of the proposed ordinance shall be posted for a minimum period of three (3) consecutive weeks in
conspicuous places in the provincial capitol, or in the city, municipal, or barangay hall of LGU and within
the vicinity of the street or park proposed to be
closed.
ARTICLE 45. Temporary closure. (a) Any national or local road, alley, park, or square may be
temporarily closed during actual emergency or fiesta celebrations, public rallies, agricultural or industrial
fairs, or undertaking of public works and highways, telecommunications, and waterworks projects, the
duration of which shall be specified by the local chief executive concerned in a written order, as follows:
(1) During fiesta celebrations for a period not exceeding nine (9) days;
(2) During agricultural or industrial fairs or expositions for a period as may be determined to be
necessary and reasonable;
(3) When public works projects or activities are being undertaken for a period as may be determined
necessary for the safety, security, health, or welfare of the public or when such closure is necessary to
facilitate completion of the projects or activities.
(b) An LGU may temporarily close and regulate the use of any local street, road, thoroughfare, or public
place where shopping malls, Sunday markets, flea or night markets, or shopping areas may be
established and where goods, merchandise, foodstuff, commodities, or articles of commerce may be sold
and dispensed to the general public.

(c) No national or local road, alley, park, or square shall be temporarily closed for athletic, cultural, or civic
activities not officially sponsored, recognized, or approved by the LGU.
LEVY D. MACASIANO, Brigadier General/PNP Superintendent, Metropolitan Traffic
Command, petitioner,
vs.
HONORABLE ROBERTO C. DIOKNO, et al, respondents.
On June 13, 1990, the respondent municipality passed Ordinance No. 86, Series of 1990 which
authorized the closure of J. Gabriel, G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena Streets
located at Baclaran, Paraaque, Metro Manila and the establishment of a flea market thereon. The said
ordinance was approved by the municipal council pursuant to MMC Ordinance No. 2, Series of 1979,
authorizing and regulating the use of certain city and/or municipal streets, roads and open spaces within
Metropolitan Manila as sites for flea market and/or vending areas, under certain terms and conditions.
On July 20, 1990, the Metropolitan Manila Authority approved Ordinance No. 86, s. 1990 of the municipal
council of respondent municipality subject to the following conditions:
1. That the aforenamed streets are not used for vehicular traffic, and that the
majority of the residents do not oppose the establishment of the flea
market/vending areas thereon;
2. That the 2-meter middle road to be used as flea market/vending area shall be
marked distinctly, and that the 2 meters on both sides of the road shall be used
by pedestrians;
3. That the time during which the vending area is to be used shall be clearly
designated;
4. That the use of the vending areas shall be temporary and shall be closed once
the reclaimed areas are developed and donated by the Public Estate Authority.
On June 20, 1990, the municipal council of Paraaque issued a resolution authorizing Paraaque Mayor
Walfrido N. Ferrer to enter into contract with any service cooperative for the establishment, operation,
maintenance and management of flea markets and/or vending areas.
On August 8, 1990, respondent municipality and respondent Palanyag, a service cooperative, entered
into an agreement whereby the latter shall operate, maintain and manage the flea market in the
aforementioned streets with the obligation to remit dues to the treasury of the municipal government of
Paraaque. Consequently, market stalls were put up by respondent Palanyag on the said streets.
On September 13, 1990, petitioner Brig. Gen. Macasiano, PNP Superintendent of the Metropolitan Traffic
Command, ordered the destruction and confiscation of stalls along G.G. Cruz and J. Gabriel St. in
Baclaran. These stalls were later returned to respondent Palanyag.
On October 16, 1990, petitioner Brig. General Macasiano wrote a letter to respondent Palanyag giving the
latter ten (10) days to discontinue the flea market; otherwise, the market stalls shall be dismantled.
Hence, on October 23, 1990, respondents municipality and Palanyag filed with the trial court a joint
petition for prohibition and mandamus with damages and prayer for preliminary injunction, to which the
petitioner filed his memorandum/opposition to the issuance of the writ of preliminary injunction.

The sole issue to be resolved in this case is whether or not an ordinance or resolution issued by the
municipal council of Paraaque authorizing the lease and use of public streets or thoroughfares as sites
for flea markets is valid.
We find the petition meritorious. In resolving the question of whether the disputed municipal ordinance
authorizing the flea market on the public streets is valid, it is necessary to examine the laws in force
during the time the said ordinance was enacted, namely, Batas Pambansa Blg. 337, otherwise known as
Local Government Code, in connection with established principles embodied in the Civil Code an property
and settled jurisprudence on the matter.
The property of provinces, cities and municipalities is divided into property for public use and patrimonial
property (Art. 423, Civil Code). As to what consists of property for public use, Article 424 of Civil Code
states:
Art. 424. Property for public use, in the provinces, cities and municipalities,
consists of the provincial roads, city streets, the squares, fountains, public
waters, promenades, and public works for public service paid for by said
provinces, cities or municipalities.
All other property possessed by any of them is patrimonial and shall be governed
by this Code, without prejudice to the provisions of special laws.
Based on the foregoing, J. Gabriel G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena streets are
local roads used for public service and are therefore considered public properties of respondent
municipality. Properties of the local government which are devoted to public service are deemed public
and are under the absolute control of Congress (Province of Zamboanga del Norte v. City of Zamboanga,
L-24440, March 28, 1968, 22 SCRA 1334). Hence, local governments have no authority whatsoever to
control or regulate the use of public properties unless specific authority is vested upon them by Congress.
One such example of this authority given by Congress to the local governments is the power to close
roads as provided in Section 10, Chapter II of the Local Government Code, which states:
Sec. 10. Closure of roads. A local government unit may likewise, through its
head acting pursuant to a resolution of its sangguniang and in accordance with
existing law and the provisions of this Code, close any barangay, municipal, city
or provincial road, street, alley, park or square. No such way or place or any part
of thereof shall be closed without indemnifying any person prejudiced thereby. A
property thus withdrawn from public use may be used or conveyed for any
purpose for which other real property belonging to the local unit concerned might
be lawfully used or conveyed. (Emphasis ours).
However, the aforestated legal provision which gives authority to local government units to close roads
and other similar public places should be read and interpreted in accordance with basic principles already
established by law. These basic principles have the effect of limiting such authority of the province, city or
municipality to close a public street or thoroughfare. Article 424 of the Civil Code lays down the basic
principle that properties of public dominion devoted to public use and made available to the public in
general are outside the commerce of man and cannot be disposed of or leased by the local government
unit to private persons. Aside from the requirement of due process which should be complied with before
closing a road, street or park, the closure should be for the sole purpose of withdrawing the road or other
public property from public use when circumstances show that such property is no longer intended or
necessary for public use or public service. When it is already withdrawn from public use, the property then
becomes patrimonial property of the local government unit concerned.

However, those roads and streets which are available to the public in general and ordinarily used for
vehicular traffic are still considered public property devoted to public use. In such case, the local
government has no power to use it for another purpose or to dispose of or lease it to private persons.
Even assuming, in gratia argumenti, that respondent municipality has the authority to pass the disputed
ordinance, the same cannot be validly implemented because it cannot be considered approved by the
Metropolitan Manila Authority due to non-compliance by respondent municipality of the conditions
imposed by the former for the approval of the ordinance, to wit:
1. That the aforenamed streets are not used for vehicular traffic, and that the
majority of the residents do(es) not oppose the establishment of the flea
market/vending areas thereon;
2. That the 2-meter middle road to be used as flea market/vending area shall be
marked distinctly, and that the 2 meters on both sides of the road shall be used
by pedestrians;
3. That the time during which the vending area is to be used shall be clearly
designated;
4. That the use of the vending areas shall be temporary and shall be closed once
the reclaimed areas are developed and donated by the Public Estate Authority.
(p. 38, Rollo)
Respondent municipality has not shown any iota of proof that it has complied with the foregoing
conditions precedent to the approval of the ordinance. The allegations of respondent municipality that the
closed streets were not used for vehicular traffic and that the majority of the residents do not oppose the
establishment of a flea market on said streets are unsupported by any evidence that will show that this
first condition has been met. Likewise, the designation by respondents of a time schedule during which
the flea market shall operate is absent.
Further, it is of public notice that the streets along Baclaran area are congested with people, houses and
traffic brought about by the proliferation of vendors occupying the streets. To license and allow the
establishment of a flea market along J. Gabriel, G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena
streets in Baclaran would not help in solving the problem of congestion.
BRUNO S. CABRERA, petitioner,
vs.
HON. COURT OF APPEALS AND THE PROVINCE OF CATANDUANES, et al, respondents.
On September 19, 1969, the Provincial Board of Catanduanes adopted Resolution No. 158, providing as
follows:
RESOLVED, as it is hereby resolved, to close the old road leading to the new
Capitol Building of this province to traffic effective October 31, 1969, and to give
to the owners of the properties traversed by the new road equal area as per
survey by the Highway District Engineer's office from the old road adjacent to the
respective remaining portion of their properties.
RESOLVED FURTHER, that the Honorable Provincial Governor be, as he is
hereby authorized to sign for and in behalf of the province of Catanduanes, the
pertinent Deed of Exchange and or other documents pertaining thereto;

Pursuant thereto, Deeds of Exchange were executed under which the Province of Catanduanes
conveyed to Remedios R. Bagadiong, Fredeswindo F. Alcala, Elena S. Latorre, Baldomero Tolentino,
Eulogia T. Alejandro, Angeles S. Vargas, and Juan S. Reyes portions of the closed road in exchange for
their own respective properties, on which was subsequently laid a new concrete road leading to the
Capitol Building.
In 1978, part of the northern end of the old road fronting the petitioner's house was planted to vegetables
in 1977 by Eulogia Alejandro. Anselmo Pea, who had bought Angeles Vargas's share, also in the same
part of the road, converted it into a piggery farm.
Learning about Resolution 158, the petitioner filed on December 29, 1978, a complaint with the Court of
First Instance of Catanduanes for "Restoration of Public Road and/or Abatement of Nuisance, Annulment
of Resolutions and Documents with Damages." He alleged that the land fronting his house was a public
road owned by the Province of Catanduanes in its governmental capacity and therefore beyond the
commerce of man. He contended that Resolution No. 158 and the deeds of exchange were invalid, as so
too was the closure of the northern portion of the said road.
In a decision dated November 21, 1980, Judge Graciano P. Gayapa, Jr., while holding that the land in
question was not a declared public road but a mere "passageway" or "short-cut," nevertheless sustained
the authority of the provincial board to enact Resolution No. 158 under existing law. 1 Appeal was taken to
the respondent court, 2 which found that the road was a public road and not a trail but just the same also
upheld Resolution 158. It declared:
Pursuant to Republic Act No. 5185, municipal authorities can close, subject to the
approval or direction of the Provincial Board, thoroughfares under Section 2246
of the Revised Administrative Code. Although in this case the road was not
closed by the municipality of Catanduanes but by the provincial board of
Catanduanes, the closure, nevertheless, is valid since it was ordered by the
approving authority itself. However, while it could do so, the provincial
government of Catanduanes could close the road only if the persons prejudiced
thereby were indemnified, Section 2246 of the Revised Administrative Code
being very explicit on this.
Before us now, the petitioner insists that Sec. 2246 is not applicable because Resolution No. 158 is not an
order for the closure of the road in question but an authority to barter or exchange it with private
properties. He maintains that the public road was owned by the province in its governmental capacity and,
without a prior order of closure, could not be the subject of a barter. Control over public roads, he insists,
is with Congress and not with the provincial board.
The petitioner alleges that the closure of the road has especially injured him and his family as they can no
longer use it in going to the national road leading to the old capitol building but must instead pass through
a small passageway. For such inconvenience, he is entitled to damages in accordance with law.
The petition has no merit.
The Court cannot understand how the petitioner can seriously argue that there is no order of closure
when it is there in the resolution, in black and white. Resolution 158 clearly says that it is "hereby resolved
to close the old road." The closure is as plain as day except that the petitioner, with the blindness of those
who will not see, refuses to acknowledge it. The Court has little patience with such puerile arguments.
They border dangerously on a trifling with the administration of justice and can only prejudice the
pleader's cause.

The authority of the provincial board to close that road and use or convey it for other purposes is derived
from the following provisions of Republic Act No. 5185 in relation to Section 2246 of the Revised
Administrative Code.
In the case of Cebu Oxygen and Acetylene Co., Inc. v. Bercilles, 3 the Court held the closure of a city
street as within the powers of the city council under the Revised Charter of Cebu City.
It sustained the subsequent sale of the land as being in accordance not only with the charter but also with
Article 422 of the Civil Code, which provides: "Property of public dominion, when no longer intended for
public use or for public service, shall form part of the patrimonial property of the State."
While it is true that the above cases dealt with city councils and not the provincial board, there is no
reason for not applying the doctrine announced therein to the provincial board in connection with the
closure of provincial roads. The provincial board has, after all, the duty of maintaining such roads for the
comfort and convenience of the inhabitants of the province.
The lower court found the petitioner's allegation of injury and prejudice to be without basis because he
had "easy access anyway to the national road, for in fact the vehicles used by the Court and the parties
during the ocular inspection easily passed and used it, reaching beyond plaintiff's house." However, the
Court of Appeals ruled that the he "was prejudiced by the closure of the road which formerly fronted his
house. He and his family were undoubtedly inconvenienced by the loss of access to their place of
residence for which we believe they should be compensated."
. The general rule is that one whose property does not abut on the closed section
of a street has no right to compensation for the closing or vacation of the street, if
he still has reasonable access to the general system of streets. The
circumstances in some cases may be such as to give a right to damages to a
property owner, even though his property does not abut on the closed section.
But to warrant recovery in any such case the property owner must show that the
situation is such that he has sustained special damages differing in kind, and not
merely in degree, from those sustained by the public generally.
The Constitution does not undertake to guarantee to a property owner the public
maintenance of the most convenient route to his door. The law will not permit him
to be cut off from the public thoroughfares, but he must content himself with such
route for outlet as the regularly constituted public authority may deem most
compatible with the public welfare. When he acquires city property, he does so in
tacit recognition of these principles. If, subsequent to his acquisition, the city
authorities abandon a portion of the street to which his property is not
immediately adjacent, he may suffer loss because of the inconvenience imposed,
but the public treasury cannot be required to recompense him. Such case
is damnum absque injuria.
Following the above doctrine, we hold that the petitioner is not entitled to damages because the injury he
has incurred, such as it is, is the price he and others like him must pay for the welfare of the entire
community. This is not a case where his property has been expropriated and he is entitled to just
compensation. The construction of the new road was undertaken under the general welfare clause. As the
trial judge acutely observed, whatever inconvenience the petitioner has suffered "pales in significance
compared to the greater convenience the new road, which is wide and concrete, straight to the veterans
fountain and down to the pier, has been giving to the public, plus the fact that the new road adds beauty
and color not only to the town of Virac but also to the whole province of Catanduanes." For the enjoyment
of those benefits, every individual in the province, including the petitioner, must be prepared to give his
share.

CEBU OXYGEN & ACETYLENE CO., INC., petitioner,

vs.
HON. PASCUAL A. BERCILLES et al, respondents.
The parcel of land sought to be registered was only a portion of M. Borces Street, Mabolo, Cebu City. On
September 23, 1968, the City Council of Cebu, through Resolution No. 2193, approved on October 3,
1968, declared the terminal portion of M. Borces Street, Mabolo, Cebu City, as an abandoned road, the
same not being included in the City Development Plan. 1 Subsequently, on December 19, 1968, the City
Council of Cebu passed Resolution No. 2755, authorizing the Acting City Mayor to sell the land through a
public bidding. 2 Pursuant thereto, the lot was awarded to the herein petitioner being the highest bidder
and on March 3, 1969, the City of Cebu, through the Acting City Mayor, executed a deed of absolute sale
to the herein petitioner for a total consideration of P10,800.00. 3 By virtue of the aforesaid deed of
absolute sale, the petitioner filed an application with the Court of First instance of Cebu to have its title to
the land registered. 4
On June 26, 1974, the Assistant Provincial Fiscal of Cebu filed a motion to dismiss the application on the
ground that the property sought to be registered being a public road intended for public use is considered
part of the public domain and therefore outside the commerce of man. Consequently, it cannot be subject
to registration by any private individual. 5
For the resolution of this case, the petitioner poses the following questions:
(1) Does the City Charter of Cebu City (Republic Act No. 3857) under Section 31,
paragraph 34, give the City of Cebu the valid right to declare a road as
abandoned? and
(2) Does the declaration of the road, as abandoned, make it the patrimonial
property of the City of Cebu which may be the object of a common contract?
(1) The pertinent portions of the Revised Charter of Cebu City provides:
Section 31. Legislative Powers. Any provision of law and executive order to the
contrary notwithstanding, the City Council shall have the following legislative
powers:
xxx xxx xxx
(34) ...; to close any city road, street or alley, boulevard, avenue, park or square.
Property thus withdrawn from public servitude may be used or conveyed for any
purpose for which other real property belonging to the City may be lawfully used
or conveyed.
From the foregoing, it is undoubtedly clear that the City of Cebu is empowered to close a city road or
street. In the case of Favis vs. City of Baguio, 7 where the power of the city Council of Baguio City to close
city streets and to vacate or withdraw the same from public use was similarly assailed, this court said:
5. So it is, that appellant may not challenge the city council's act of withdrawing a
strip of Lapu-Lapu Street at its dead end from public use and converting the
remainder thereof into an alley. These are acts well within the ambit of the power
to close a city street. The city council, it would seem to us, is the authority
competent to determine whether or not a certain property is still necessary for
public use.

Such power to vacate a street or alley is discretionary. And the discretion will not
ordinarily be controlled or interfered with by the courts, absent a plain case of
abuse or fraud or collusion. Faithfulness to the public trust will be presumed. So
the fact that some private interests may be served incidentally will not invalidate
the vacation ordinance.
(2) Since that portion of the city street subject of petitioner's application for registration of title was
withdrawn from public use, it follows that such withdrawn portion becomes patrimonial property which can
be the object of an ordinary contract.
Article 422 of the Civil Code expressly provides that "Property of public dominion, when no longer
intended for public use or for public service, shall form part of the patrimonial property of the State."
Besides, the Revised Charter of the City of Cebu heretofore quoted, in very clear and unequivocal terms,
states that: "Property thus withdrawn from public servitude may be used or conveyed for any purpose for
which other real property belonging to the City may be lawfully used or conveyed."
Accordingly, the withdrawal of the property in question from public use and its subsequent sale to the
petitioner is valid. Hence, the petitioner has a registerable title over the lot in question.
ANTONIO C. FAVIS, plaintiff-appellant,
vs.
THE CITY OF BAGUIO and THE SHELL COMPANY OF THE PHILIPPINES, defendants-appellees.
On April 30, 1957, Antonio Favis bought a parcel of land of about 1,000 square meters Lot 2-E-3-B-3B-2 of the subdivision plan (LRC) Psd-2179 from the Assumption Convent, Inc. Said lot is bounded on
the southwest by Lot 2-E-3-B-3-B-1 (proposed road), owned by Assumption Convent, Inc. and part of
subdivision plan Psd-2179.
Simultaneous with the sale, Assumption donated to the City "for road purposes" the lot
indicated in its subdivision plan as the proposed road Lot 2-E-3-B-3-B-1 aforesaid. This donated road
is used by Favis as his means of egress and ingress from his residence to a public street called LapuLapu Street.
Lapu-Lapu Street is actually Lot 27 in the amendatory plan (Bcs-56-Amd 2, Residence Section "B")
And is a portion of a big tract of land registered in the name of the City, known as Baguio Market
Subdivision, for all of which the City holds Transfer Certificate of Title No. 2209. It branches out to various
parts of the market subdivision. From its intersecting point with Dagohoy Street and going northward,
Lapu-Lapu Street is eight (8) meters wide; 1 it abruptly ends as it meets portions of two lots the
donated road aforementioned and the lot owned by Olmina Fernandez (Lot 2-E-3-B-1-A, Bsd-26963).
Fernandez' lot is fenced, with buildings; and there is a sharp depression of at least 2 meters at the precise
point it meets Lapu-Lapu Street. Ocular inspection conducted by the trial court disclosed that at the exact
connecting point of Lapu-Lapu Street and the donated road (which leads to appellant's land), the road
opening is only 2.5 meters wide.
Lot 25 of the Baguio Market Subdivision is northernmost in said subdivision and contains an area of
approximately 400 square meters. Immediately next to it, to the north, is the lot of Olmina Fernandez
aforesaid. As far back as June, 1947, the City, by virtue of Resolution No. 115, Series of 1947, of the City
Council of Baguio leased this Lot 25 to Shell for a ten-year period renewable for another ten years. Shell
constructed thereon a service station of about 335 square meters.
On May 10, 1961, the City Council of Baguio passed Resolution No. 132 authorizing the City thru
its Mayor to lease to Shell two parcels of land described as follows:

A parcel of land, known as Lot No. 25 of the Market Subdivision and shown as "Lot A" on Sketch
Plan ... marked "Exhibit A" and made a part hereof, situated in the City of Baguio, containing an area of
335 sq. m....
and
Also a parcel of land containing an area of 100 sq. m. more or less, marked as "Lot B" on Sketch
Plan...
Lot 25 (Lot A), it is to be noted, is the same lot leased to Shell way back in June, 1947 and the
lease of Lot B is merely an addition thereto. This additional area taken from Lapu-Lapu Street is five (5)
meters wide and twenty (20) meters long and abuts Lot 25.
About three weeks later, the City, thru its Mayor entered into a formal contract of lease with Shell. 2
Shell filed an application with the Office of the City Engineer of Baguio for a building permit for the
construction of a new and bigger gasoline station on the leased premises. Said office, in a letter to the
City Council thru the City Mayor dated June 30, 1961, noted that the leased "[1] to 'B' which consists of
100 square meters is exactly within the road right-of-way of Lapu-Lapu Street," is for public use, and may
not be leased.
On July 5, 1961, appellant Antonio C. Favis lodged a letter-protest against the additional lease
made in favor of Shell. He claimed that it would diminish the width of Lapu-Lapu Street to five meters
only; that it would destroy the symmetry of the said street thus making it look very ugly; and that the City
was bereft of authority to lease any portion of its public streets in favor of anyone.
Apparently to obviate any and all objections to the lease of the additional area to Shell, the City
Council of Baguio, on July 19, 1961, passed Resolution No. 215, amending Resolution No. 132, Series of
1961, by converting that "portion of Lapu-Lapu Street lying southeast from Lot B of the sketch plan
prepared March 10, 1961 by Private Land Surveyor Perfecto B. Espiritu, beginning at this portion's
intersection with Dagohoy Street, into an alley 5.00 meters wide (4 m. now in actual use); declaring for
this purpose, that said Lot B shall not be a part of this alley."
On November 29, 1961, Favis commenced suit for the annulment of the lease contract with
damages in the Court of First Instance of Baguio. 3 He prayed that (1) defendants be ordered to stop,
remove and/or demolish whatever constructions had been introduced at the additional leased area on
Lapu-Lapu Street; (2) the building permit and contract of lease entered into by and between the
defendants be cancelled and revoked for being null and void; and (3) defendants be directed to pay,
jointly and severally, actual, compensatory, corrective and consequential damages totalling P50,000,
attorneys' fees in the sum of P2,000, and the costs.
After hearing, the lower court, on May 21, 1962, rendered judgment uphelding the two questioned
resolutions and dismissing the complaint, with costs.
We first address ourselves to the preliminary questions raised in the appeal.lawphi1.nt
1. Amongst these is appellant's charge that the resolutions directing the partial closing of LapuLapu Street and the lease thereof are invalid. Because, so appellant avers, those resolutions contravene
the City Charter. He relies on subsection (L) of Section 2553 of the Revised Administrative Code. It
provides that the powers granted to the City including the power to close streets shall be carried
"into effect by ordinance."

This objection is directed at form, not at substance. It has been held that "even where the statute or
municipal charter requires the municipality to act by ordinance, if a resolution is passed in the manner and
with the statutory formality required in the enactment of an ordinance, it will be binding and effective as an
ordinance." 4 Such resolution may operate regardless of the name by which it is called. 5
Resolutions No. 132 and 215, Series of 1961, were unanimously approved with all the councilors
present and voting, carried the seal of the city council, were signed by the City Vice-Mayor, the Presiding
Officer, approved by the City Mayor, and attested by the City Secretary. With the presumption of validity of
the resolution and the other presumption that official duty has been regularly performed, the embattled
resolutions are just as good as ordinances and have the same force.
2. Appellant cites lack of advertisement or direct notice to owners of contiguous properties whose
rights might be affected, as another ground to show invalidity of the resolutions.
The requirement of notice specified in the aforequoted provision of the city charter is not applicable to the
case at bar. It will be observed that the notice is to be given "to any, and all persons interested", to be
placed in a securely sealed postpaid wrapper addressed "to each person affected thereby and assessed
thereunder." The accent is on the word and. The person "affected" must also be "assessed". And then,
"such notice shall set forth the nature of the proposed improvement, the estimated cost therefor, the total
amount of the assessment to be levied therefor, and the amount to be levied upon each parcel of the
property or possession of the addressee." In turn, the council, after hearing objections, may "alter, modify,
or increase the area of [the] district, the total assessment thereof, or any individual area or assessment
objected to therein."
Clearly then, this method of giving notice applies only when an ordinance calls for an assessment.
So that where no assessment has been made or is to be made, such notice need not be given.
In the case at bar, the resolutions in question do not at all call for any kind of assessment against
appellant or his land. Hence, the notice that appellant would want to have, need not be given.
Besides, appellant did actually protest Resolution 132 authorizing the lease to Shell. Such protest
was, however, overruled. And the council passed Resolution 215, in effect, confirming the lease. The
purpose of notice on the assumption that appellant is entitled thereto is subserved. Appellant has no
cause for complaint.
3. We now direct attention to appellant's complaint that the questioned resolutions narrowed down,
much to his prejudice, the width of Lapu-Lapu Street at its connecting point with the donated road which,
in turn, leads to his land. The reduction of the usable width from 8 meters to 4 meters cannot be done, so
he argues, because said resolutions violate Executive Order No. 113, Series of 1955, issued by President
Ramon Magsaysay, particularly the following:
IV. MUNICIPAL ROADS:
All highways not included in the above classifications, Municipal and city roads shall have a right-ofway of not less than ten (10) meters; provided that the principal streets of town sites located on public
lands shall have a width of sixty (60) meters and all other streets a width of not less than fifteen (15)
meters.7
We do not go along with appellant. First, because the 2.5 meter opening connecting the donated
road and Lapu-Lapu Street has always been that wide since the donated road was opened. The fact that
this opening is 2.5 meters, is confirmed by the ocular inspection personally made by the trial judge
himself. The occupancy by Shell of a portion of the road right-of-way did not in any way put appellant to
any more inconvenience than he already had. His outlet to Lapu-Lapu Street of 2.5 meters still remains
the same.

In the second place, the resolutions in question do not have the effect of decreasing the width of
the opening because said opening is far from the leased portion of Lapu-Lapu Street. The said leased
portion is on the left side of Lapu-Lapu Street, whereas the opening lies on the right uppermost part of
Lapu-Lapu Street. That leased strip does not reach said opening. In fact, while the lease contract
authorized Shell to take 5 meters wide of Lapu-Lapu Street, Shell occupied only 4 meters wide. 8
Thirdly, the executive order could not have been violated because even before its promulgation,
Lapu-Lapu Street was only 8 meters wide, and the said executive order did not demand widening to 10
meters of existing streets. For it to have so ordered would have entailed huge expenditure not only on the
part of Baguio City but many other municipal corporations as well which have streets less than 10 meters
wide. For, compensation for the expropriation of private property would have to be given.
4. The main thrust of appellant's arguments is that the city council does not have the power to close
city streets like Lapu-Lapu Street. He asserts that since municipal bodies have no inherent power to
vacate or withdraw a street from public use, there must be a specific grant by the legislative body to the
city or municipality concerned.
Considering that "municipal corporations in the Philippines are mere creatures of Congress; that, as
such, said corporations possessed, and may exercise, only such power as Congress may deem fit to
grant thereto", 9 a reference to the organic act of the City of Baguio appears to be in order. In subsection
(L) of Section 2558 of the Review Administrative Code (Baguio Charter), the language of the grant of
authority runs thus
(L) To provide for laying out, opening, extending, widening, straightening, closing up, constructing, or
regulating,in whole or in part, any public plaza, square, street, sidewalk, trail, park, waterworks, or water
remains, or any cemetery, sewer, sewer connection or connections, either on, in, or upon public or private
property; .... 10
Undoubtedly, the City is explicitly empowered to close a city street.
So it is, that appellant may not challenge the city council's act of withdrawing a strip of Lapu-Lapu Street
at its dead end from public use and converting the remainder thereof into an alley. These are acts well
within the ambit of the power to close a city street. The city council, it would seem to us, is the authority
competent to determine whether or not a certain property is still necessary for public use. 12
Deemed as material factors which a municipality must consider in deliberating upon the advisability
of closing a street are: "the topography of the property surrounding the street in the light of ingress and
egress to other streets; the relationship of the street in the road system throughout the subdivision; the
problem posed by the 'dead end' of the street; the width of the street; the cost of rebuilding and
maintaining the street as contrasted to its ultimate value to all of the property in the vicinity; the
inconvenience of those visiting the subdivision; and whether the closing of the street would cut off any
property owners from access to a street." 14
We now take a look at the factors Considered by the City Council of Baguio in vacating a portion of
Lapu-Lapu Street. These appear in the resolution (Resolution 215) itself, thus:
WHEREAS, that portion of the road right-of-way of Lapu-Lapu Street, Baguio, beginning with its
intersection, with Dagohoy Street does not have much traffic, being in fact a dead end street;
AND WHEREAS, the conversion of this portion of Lapu-Lapu Street into a five-meter alley would
neither prejudice nor damage any person or property;

AND WHEREAS, in the subdivision scheme of the burned area of the City Market Subdivision,
already approved by the City Council, provision was made for another road behind Lapu-Lapu Street
interesting Dagohoy Street.
Besides, there are the specific findings by the trial court that the "2.5 opening is sufficient for
Plaintiff to enter and exit from the lot he purchased from Assumption Convent, Inc."; that the "present road
right of way was rendered narrow by surrounding properties and is sufficient for the needs of the Plaintiff";
and that the "portion leased to Shell Company was not necessary for public use." We are bound by these
findings of fact.
By the embattled resolutions, no right of the public is overwhelmed, none defeated. Public interest
was not at all disregarded. On the contrary, some benefit did flow from the withdrawal of a portion of the
street and the lease thereof. The City saves from the cost of maintenance, yet gets some income.
Given the precept that the discretion of a municipal corporation is broad in scope and should thus
be accorded great deference in the spirit of the Local Autonomy Law (R.A. 2264), and absent a clear
abuse of discretion, we hold that the withdrawal for lease of the disputed portion of Lapu-Lapu Street and
the conversion of the remainder of the dead-end part thereof into an alley, does not call for, and is beyond
the reach of, judicial interference.
6. From the fact that the leased strip of 100 square meters was withdrawn from public use, it
necessarily follows that such leased portion becomes patrimonial property. Article 422 of the Civil Code
indeed provides that property of public domain, "when no longer intended for public use or public service,
shall form part of the patrimonial property of the State." Authority is not wanting for the proposition that
property for public use of provinces and towns are governed by the same principles as property of public
dominion of the same character." 15 There is no doubt that the strip withdrawn from public use and held in
private ownership may be given in lease. For amongst the charter powers given the City of Baguio
(Section 2541, Revised Administrative Code [Charter of the City of Baguio] ) is to "lease ... real ...
property, for the benefit of the city...."
7. We now look into appellant's averment that by reducing the original width of Lapu-Lapu Street,
his entrance and exit to and from his property has become very difficult; that it is now impossible for his
big trucks and trailers to turn around; that it made the area around it very dangerous in case of fire; and
that it has caused perpetual danger, annoyance, irreparable loss and damage not only to the public in
general but especially to heroin plaintiff in particular. For all these, he asks for damages.
First to the governing principle: "The general rule is that one whose property does not abut on the
closed section of a street has no right to compensation for the closing or vacation of the street, if he still
has reasonable access to the general system of streets. The circumstances in some cases may be such
as to give a right to damages to a property owner, even though his property does not abut on the closed
section. But to warrant recovery in any such case the property owner must show that the situation is such
that he has sustained special damages differing in from those sustained by kind, and not merely in
degree, the public generally." 16
In the case at bar, no private right of appellant has been invaded. No special damage or damages
he will incur by reason of the closing of a portion of Lapu-Lapu Street at its dead-end. His property does
not abut that street. In fact, the court has found that the remaining portion of Lapu-Lapu Street, which
actually is 4 meters in width, is sufficient for the needs of appellant and that the leased portion subject
of this suit "was not necessary for public use." Furthermore, it is physically impossible to connect LapuLapu Street in its entire width 8 meters with the area donated to the City or Assumption Convent, for
the reason that the only outlet between them is 2.5 meters wide. Even appellant's allegation that by
reducing the width of Lapu-Lapu Street it is now impossible for his big trucks to turn around is of dubious
veracity on the face of his testimony that turning around at the original Lapu-Lapu Street or at the junction
of Lapu-Lapu Street and the donated road has not been tried before and that his trucks actually do their

maneuvering at the intersection of Dagohoy Street and Lapu-Lapu Street. 17 Further, as stated in the
resolution, provision has been "made for another road behind Lapu-Lapu Street and intersecting Dagohoy
Street." It has been said that
The Constitution does not undertake to guarantee to a property owner the public maintenance of
the most convenient route to his door. The law will not permit him to be cut off from the public
thoroughfares, but he must content himself route for outlet as the regularly constituted public with such
authority may deem most compatible with the public welfare. When he acquires city property, he does so
in tacit recognition of these principles. If, subsequent to his appreciation, the city authorities abandon a
portion of the street to which his property is not immediately adjacent, he may suffer loss because of the
inconvenience imposed, but the public treasury cannot be required to recompense him. Such case is
damnum absque injuria.18
JOSE D. SANGALANG and LUTGARDA D. SANGALANG, petitioners,
vs.
INTERMEDIATE APPELLATE COURT and AYALA CORPORATION, respondents.
In brief, G.R. Nos. 74376, 76394, 78182, and 82281 are efforts to enforce the "deed restrictions" in
question against specific residents (private respondents in the petitions) of Jupiter Street and with respect
to G.R. No. 78182, Reposo Street. The private respondents are alleged to have converted their
residences into commercial establishments (a restaurant in G.R. No. 74376, a bakery and coffee shop in
G.R. No. 76394, an advertising firm in G.R. No. 78182; and a construction company, apparently, in G.R.
No. 82281) in violation of the said restrictions. 24
Their mother case, G. R. No. 71169 is, on the other hand, a petition to hold the vendor itself, Ayala
Corporation (formerly Makati Development Corporation), liable for tearing down the perimeter wall along
Jupiter Street that had therefore closed its commercial section from the residences of Bel-Air Village and
ushering in, as a consequence, the full "commercialization" of Jupiter Street, in violation of the very
restrictions it had authored.
Among other things, there is a recognition under both Ordinances Nos. 81 and 8 1-01 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 Extrella St., to Pedestrian Lane by E. De los Santos Ave., on the SW., from
Pedestrian Lane to Reposo St., by Jupiter Street
. . . . 40 Hence, it cannot be said to have been "for the exclusive benefit" of Bel-Air Village residents.
We come to the perimeter wall then standing on the commercial side of Jupiter Street the destruction of
which opened the street to the public. The petitioners contend that the opening of the thoroughfare had
opened, in turn, the floodgates to the commercialization of Bel-Air Village. The wall, so they allege, was
designed precisely to protect the peace and privacy of Bel-Air Village residents from the din and uproar of
mercantile pursuits, and that the Ayala Corporation had committed itself to maintain it. It was the opinion
of the Court of Appeals, as we said, that Ayala's liability therefor, if one existed, had been overtaken by
the passage of Ordinances Nos. 81 and 82-01, opening Jupiter Street to commerce.
It is our ruling, we reiterate, that Jupiter Street lies as a mere boundary, a fact acknowledged by the
authorities of Makati and the National Government and, as a scrutiny of the records themselves reveals,
by the petitioners themselves, as the articles of incorporation of Bel-Air Village Association itself would
confirm. As a consequence, Jupiter Street was intended for the use by both -the commercial and

residential blocks. It was not originally constructed, therefore, for the exclusive use of either block, least of
all the residents of Bel-Air Village, but, we repeat, in favor of both, as distinguished from the general
public.
When the wall was erected in 1966 and rebuilt twice, in 1970 and 1972, it was not for the purpose of
physically separating the two blocks. According to Ayala Corporation, it was put up to enable the Bel-Air
Village Association "better control of the security in the area, 41 and as the Ayala Corporation's "show of
goodwill " 42 a view we find acceptable in the premises. For it cannot be denied that at that time, the
commercial area was vacant, "open for [sic] animals and people to have access to Bel-Air Village." 43
There was hence a necessity for a wall.
In any case, we find the petitioners' theory, that maintaining the wall was a matter of a contractual
obligation on the part of Ayala, to be pure conjecture. The records do not establish the existence of such a
purported commitment. For one, the subdivision plans submitted did not mention anything about it. For
another, there is nothing in the "deed restrictions" that would point to any covenant regarding the
construction of a wall. There is no representation or promise whatsoever therein to that effect.
With the construction of the commercial buildings in 1974, the reason for which the wall was built- to
secure Bel-Air Village from interlopers had naturally ceased to exist. The buildings themselves had
provided formidable curtains of security for the residents. It should be noted that the commercial lot
buyers themselves were forced to demolish parts of the wall to gain access to Jupiter Street, which they
had after all equal right to use.
In fine, we cannot hold the Ayala Corporation liable for damages for a commitment it did not make, much
less for alleged resort to machinations in evading it. The records, on the contrary, will show that the BelAir Village Association had been informed, at the very outset, about the impending use of Jupiter Street
by commercial lot buyers.
The petitioners cannot simply assume that the wall was there for the purpose with which they now give it,
by the bare coincidence that it had divided the residential block from the commercial section of Bel-Air.
The burden of proof rests with them to show that it had indeed been built precisely for that objective, a
proof that must satisfy the requirements of our rules of evidence. It cannot be made to stand on the
strength of plain inferences.
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:
xxxxxxxxx
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) 55
xxxxxxxxx
The donation, on the contrary, gave the general public equal right to it.

What Ayala submits as the real cause was the opening of Jupiter Street to vehicular traffic in 1977., 58
But this was upon orders of the Mayor, and for which the homeowners' association had precisely filed suit
(Civil Case No. 34998)59 to contest the act of the Mayor.
Our decision also resolves, quite anticlimactically, these companion cases. But we do so for various other
reasons. In the Sangalang case, we absolve the Ayala Corporation primarily owing to our finding that it is
not liable for the opening of Jupiter Street to the general public. Insofar as these petitions are concerned,
we likewise exculpate the private respondents, not only because of the fact that Jupiter Street is not
covered by the restrictive easements based on the "deed restrictions" but chiefly because the National
Government itself, through the Metro Manila Commission (MMC), had reclassified Jupiter Street into high
density commercial (C-3) zone, 64 pursuant to its Ordinance No. 81-01. Hence, the petitioners have no
cause of action on the strength alone of the said "deed restrictions.
It is not that we are saying that restrictive easements, especially the easements herein in question, are
invalid or ineffective. As far as the Bel-Air subdivision itself is concerned, certainly, they are valid and
enforceable. But they are, like all contracts, subject to the overriding demands, needs, and interests of the
greater number as the State may determine in the legitimate exercise of police power. Our jurisdiction
guarantees sanctity of contract and is said to be the "law between the contracting parties, 65 but while it
is so, it cannot contravene 'law, morals, good customs, public order, or public policy. 66 Above all, it
cannot be raised as a deterrent to police power, designed precisely to promote health, safety, peace, and
enhance the common good, at the expense of contractual rights, whenever necessary.
Undoubtedly, the MMC Ordinance represents a legitimate exercise of police power. The petitioners have
not shown why we should hold otherwise other than for the supposed "non-impairment" guaranty of the
Constitution, which, as we have declared, is secondary to the more compelling interests of general
welfare. The Ordinance has not been shown to be capricious or arbitrary or unreasonable to warrant the
reversal of the judgments so appealed. In that connection, we find no reversible error to have been
committed by the Court of Appeals.
SPOUSES SOCRATES PILAPIL and ROSARIO PILAPIL, petitioners,
vs.
THE COURT OF APPEALS, SPOUSES GORGONIO and GLORIA COLOMIDA, et al, respondents.
The petitioners-spouses (hereinafter, Pilapils) own a 6,598 square meter 3 parcel of land situated in
Bahak, Poblacion, Liloan, Cebu and covered by Tax Declaration No. 15067. 4 The said parcel
corresponds to Lot No. 320 and Lot 323 5and that portion covered by Plan Psu-07-005007, 6 duly
approved by the Regional Director of Region VII of the Bureau of Lands. The land formerly belonged to
Marcelo Pilapil, the grandfather of petitioner Socrates Pilapil.
Private respondents (hereinafter, Colomidas), who are residents of Mandaue City, purchased on 4 June
1981 from Esteria vda. de Ceniza and the heirs of Leoncio Ceniza a parcel of land, also located at Bahak,
Poblacion, Liloan, Cebu, covered by Tax Declaration No. 19764 and described as follows:
. . . Boundaries: N-Gregorio Longakit; S-Gregorio Longakit; E-Manglar; W-Gregorio Longkit; Area: 10,910
sq. meters; Kind of land: Pasture cocal and wood; Improvements: 20 cocos prod.; Assessed Value:
P1,360.00; Present Possessors: The herein petitioners. 7
This parcel of land, per Plan Psu-07-002763, 8 was found to contain only 6,448 square meters. It is now
covered by Free Patent No. (VII-1)-15448, issued on 23 March 1982, and Original Certificate of Title No.
P-20588 9 of the Register of Deeds of the Province of Cebu issued in the name of the Colomidas and is
located around 70 meters from the National Road. The Colomidas claim that they had acquired from
Sesenando Longkit a road right of way which leads towards the National Road; this road right of way,

however, ends at that portion of the property of the Pilapils where acamino vecinal exists all the way to
the said National Road. 10
In the early part of July of 1981, the Colomidas "tried to improve the road of "camino vecinal", for the
convenience of the public," but the Pilapils harassed and threatened them with "bodily harm from making
said improvement." The Pilapils also threatened to fence off the camino vecinal. 11
Thus, on 16 July 1981, the Colomidas filed against the Pilapils a petition 12 for injunction and damages
with a prayer for a writ of preliminary mandatory and/or prohibitory injunction with the Regional Trial Court
of Cebu.
During trial on the merits in Civil Case No. R-20732, the Colomidas presented the following witnesses:
Gorgonio Colomida, Jr. himself, Sesenado Longakit and Florentino Pepito. They also offered in evidence
documentary exhibits. the more relevant and material of which are (1) Resolution No. 106 of the Municipal
Council of Liloan passed on 18 August 1973 and entitled "Authorizing the Residents of Bahak, Poblacion,
Liloan to Repair and Improve a Camino Vecinal in their Sitio" 17 and (2) a sketch 18 prepared by witness
Sesenando Longakit purportedly showing that thecamino vecinal traverses the property of the Pilapils.
Both Longakit and Pepito testified on the said camino vecinal, insisting that it traverses the property of the
Pilapils.
Upon the other hand, the Pilapils presented the following as their witnesses: Roman Sungahid, Engineer
Epifanio Jordan (the Municipal Planning and Development Coordinator of the Municipality of Liloan) and
petitioner Socrates Pilapil. Engineer Jordan testified on Liloan's Urban Land Use Plan 19 or zoning map
which he prepared upon the instruction of then Municipal Mayor Cesar Butai and which was approved by
the Sangguniang Bayan of Liloan. Per the said plan, the camino vecinal in sitio Bahak does not traverse,
but runs along the side 20 of the Pilapil property. 21
The core issue in this case, as already stated, is whether or not the Municipality of Liloan has a camino
vecinal in sitio Bahak of barangay Poblacion, and if it does, whether such road traverses the property of
the Pilapils or only passes along its side. While both parties agree that a camino vecinal actually exists,
the Colomidas assert that the same traverses the property of the Pilapils. The latter, on the other hand,
vigorously maintain that it does not. By any standard, the issue is quite simple and could have been easily
resolved without much procedural fanfare if the trial court either took full advantage of the rule on pre-trial,
35 or conducted an ocular inspection of the premises. Such inspection would have been a wise course of
action 36 to take in view of the divergent versions of the parties as to the location of the camino vecinal.
Even the Colomidas, as petitioners below, could have expedited the resolution of the controversy by
moving for the appointment of a commissioner who could determine the exact location of the camimo
vecinal and submit a vicinity map or plan indicating the same; and, if the parties cannot agree on its
location, the latter could indicate its relative locations on the basis of the parties' respective versions. The
trial court's decision does not even make any reference to a pre-trial conference being held. Neither does
it appear that the appointment of a commissioner, allowed by the Rules of Court, 37 was sought. As a
consequence thereof, it took the trial court more than six (6) long years to decide the case. And even
then, it had to contend with conflicting testimonial evidence and draw conclusions from a sketch prepared
by witness Sesenando Longakit, the zoning map prepared by Engineer Jordan and various tax
declarations.
The above issue has been further obscured by the unnecessary quibbling on whether or not the
testimonies of Sesenando Longakit and Florentino Pepito should be accorded full faith and credit. To this
Court's mind, the issue of their credibility has been rendered moot by the unrebutted evidence which
shows that the Municipality of Liloan, through its Sangguniang Bayan, had approved a zoning plan,
otherwise called an Urban Land Use Plan. 38 This plan indicates the relative location of the camino
vecinal in sitio Bahak, 39 Poblacion, Liloan, Cebu.

It is beyond dispute that the establishment, closure or abandonment of the camino vecinal is the sole
prerogative of the Municipality of Liloan. No private party can interfere with such a right. Thus, even if We
are to agree with both the trial court and public respondent that Longakit and Pepito were telling the truth,
the decision of the Municipality of Liloan with respect to the said camino vecinal in sitio Bahak must
prevail. It is thus pointless to concentrate on the testimonies of both witnesses since the same have, for
all intents and purposes, become irrelevant.
The property of provinces, cities and municipalities is divided into property for public use and patrimonial
property. 40The first consists of the provincial roads, city streets, municipal streets, squares, fountains,
public waters, promenades, and public works for public service paid for by the said provinces, cities or
municipalities. 41 They are governed by the same principles as property of public dominion of the same
character. 42 Under the applicable law in this case, Batas Pambansa Blg. 337 (The Local Government
Code), the Sangguniang Bayan, the legislative body of the municipality, 43had the power to adopt zoning
and subdivision ordinances or regulations subject to the provisions of existing laws, and to provide for the
construction, improvement, repair and maintenance of municipal streets, avenues, alleys, sidewalks,
bridges, parks and other public places, regulate the use thereof and prohibit the construction or placing of
obstacles or encroachments on them. 44 Section 10, Chapter 2, Title One, Book I of said Code provided:
45
Sec. 10. Closure of roads. A local government unit may likewise, through its head acting
pursuant to a resolution of its Sangguniang and in accordance with existing law and the provisions of this
Code, close any barangay, municipal, city or provincial road, street, alley, park or square. No such way or
place or any part thereof shall be closed without indemnifying any person prejudiced thereby. A property
thus withdrawn from public use may be used or conveyed for any purpose for which other real property
belonging to the local unit concerned might be lawfully used or conveyed.
A camino vecinal is a municipal road. It is also property for public use. Pursuant, therefore, to the above
powers of a local government unit, the Municipality of Liloan had the unassailable authority to (a) prepare
and adopt a land use map, (b) promulgate a zoning ordinance which may consider, among other things,
the municipal roads to be constructed, maintained, improved or repaired and (c) close any municipal road.
In the instant case, the Municipality of Liloan, through the Sangguniang Bayan, approved the Urban Land
Use Plan; this plan was duly signed by the Municipal Mayor (Exhibit "1"). By doing so, the said legislative
body determined, among others, the location of the camino vecinal in sitio Bahak.
The reluctance of the trial court and public respondent to give due weight to the testimony of Engineer
Jordan stemmed from a doubt as to his authority to prepare the plan. There is also some confusion
regarding the party who directed him to do so. Both courts observed that while on direct examination, he
testified that the Sangguniang Bayan instructed him to prepare the zoning map, 47 during crossexamination, he stated that he prepared it upon the Mayor's oral order. 48Such inconsistency is quite trivial
and hence, did not affect the preparation and subsequent approval of the zoning map. In the first place,
under the applicable law, the mayor was both a member and the presiding officer of the Sangguniang
Bayan. 49 Secondly, what invested the zoning map with legal effect was neither the authority of the person
who ordered its preparation nor the authority of the person who actually prepared it, but its approval by
the Sangguniang Bayan. Furthermore, with or without the order of the Mayor or Sangguniang Bayan,
Engineer Jordan, as the then Municipal Planning and Development Coordinator, had the authority to
prepare the plan and admit it to the Sangguniang Bayan for approval. Among his functions under the
governing law at the time was to formulate an integrated economic, social, physical and other
development objectives and policies for the consideration and approval of the sangguniang bayan and the
municipal mayor, and prepare municipal comprehensive plans and other development planning
document. 50 Thus, even if he had not been instructed by anyone to prepare the map, he could
nevertheless, on his own initiative and by virtue of his functions, make one. The trial court and public
respondent then failed to appreciate the role and function of a Municipal Planning and Development
Coordinator.

As further declared by Engineer Jordan, this camino vecinal in sitio Bahak "passes the side of the land of
Socrates Pilapil. This is the proposed road leading to the national highway." 51 The Colomidas presented
no rebuttal witness to show that by the approval of the zoning map by the Sangguniang Bayan, they were
effectively deprived of access to the national highway from their property. Of course, they may argue that
the zoning map was prepared for and approved by the Sangguniang Bayan after the filing of their petition
in Civil Case No. R-20732. Be that as it may, this preparation and approval, clearly a supervening event,
was relied upon, introduced in evidence without objection on the part of the Colomidas and evaluated by
the trial court. In short, the latter allowed the issue raised by the supervening event to be tried. There was
nothing procedurally objectionable to this; on the contrary, Section 5, Rule 10 of the Rules of Court allows
it.
Such supervening fact, duly proved to be an official act of the Municipality of Liloan, binds not only the
Pilapils and the Colomidas, but also the general public. The solemn declarations of old people like
Sesenando Longakit and Florentino Pepito cannot overturn the decision of the Municipality of Liloan.
Section 22. Corporate Powers. (a) Every local government unit, as a corporation, shall have the following powers:
(1) To have continuous succession in its corporate name;
(2) To sue and be sued;
(3) To have and use a corporate seal;
(4) To acquire and convey real or personal property;
(5) To enter into contracts; and
(6) To exercise such other powers as are granted to corporations, subject to the
limitations provided in this Code and other laws.
(b) Local government units may continue using, modify, or change their existing corporate
seals: Provided, That newly established local government units or those without
corporate seals may create their own corporate seals which shall be registered with the
Department of the Interior and Local Government: Provided, further, That any change of
corporate seal shall also be registered as provided hereon.
(c) Unless otherwise provided in this Code, no contract may be entered into by the local
chief executive in behalf of the local government unit without prior authorization by the
sanggunian concerned. A legible copy of such contract shall be posted at a conspicuous
place in the provincial capitol or the city, municipal or barangay hall.
(d) Local government units shall enjoy full autonomy in the exercise of their proprietary
functions and in the limitations provided in this Code and other applicable laws.
CITY COUNCIL OF CEBU CITY et al, plaintiffs-appellants,
vs.
CARLOS J. CUIZON, Mayor of the City of Cebu, et al, defendants-appellees.
The seven above-named plaintiffs-appellants "by themselves and representing the City Council of Cebu,
as majority members thereof" 1 filed on May 31, 1966 their complaint in the court of first instance of Cebu
against defendants-appellees Carlos J. Cuizon, as mayor of Cebu City, Jesus E. Zabate, as acting Cebu

City treasurer, Philippine National Bank (hereinafter referred to as the bank) and Tropical Commercial
Company, Inc. (hereinafter referred to as Tropical), praying inter alia that the contract entered into on
February 5, 1966 by and between defendant Mayor Cuizon on behalf of the city for the purchase of road
construction equipment from Tropical (for $520,912.00 on a cash basis or $687,767.30 on a deferred
payment basis) be declared as null and void ab initio. (The contract, as eventually annexed by defendant
Tropical with its answer, shows that its total was for $685,767.30 on a five-year deferred payment plan.) 2
Among the grounds invoked by plaintiffs-appellants for the nullity of the said contract and the
complementary transactions with the bank arising therefrom such as the corresponding letters of credit
opened therefor, were that the same were entered into without the necessary authority and approval of
the city council, and that the city treasurer had not certified to the city mayor, as required by section 607 of
the Revised Administrative Code that funds have been duly appropriated for the said contract and that the
amount necessary to cover the contract was available for expenditure on account thereof, and that
accordingly, the purported contract entered into by the city mayor was "wholly void" under the provisions
of section 608 of the same code, which make "the officer assuming to make such contract ... liable to the
government or other contracting party for any consequent damage to the same extent as if the transaction
had been wholly between private parties." As summarized by plaintiffs-appellants, the background facts
that led to their filing of their complaint were as follows:
a) On November 20, 1965, the City Council approved Resolution No. 1648,
quoted as follows:
RESOLVED, to authorize His Honor, the City Mayor, for and in
behalf of the City of Cebu, to negotiate and to contract for, by
public bidding, on deferred payment plan and by lot bid, U.S. or
European made road construction equipments for the City of
Cebu and authorizing him for this purposes, to sign the
corresponding contract and other pertinent papers.
RESOLVED FURTHER, to request the City Mayor to call soon a
public bidding for the early acquisition of said equipments.
b) On December 23, 1965, the City Council of Cebu approved Resolution No.
1831, which also reads as follows:
RESOLVED, to authorize the City Mayor, in connection with the
authority granted him under Resolution No. 1648, current series,
to utilize the Time Deposit of the City of Cebu with the Philippine
National Bank, as Bond guarantee in the opening of a Letter of
Credit in connection with the City of Cebu's application to directly
purchase road construction equipments from abroad, to the
extent of the amount that the Letter of Credit may require.
c) By reason of the fact that the call to bid by the defendant City Mayor Carlos J.
Cuizon were for bidders who should be exclusive distributors of the equipments
being bidded and the said supplier must have a sales and service outlet in the
City of Cebu, the other bidders then became disqualified and the bid was
awarded to the only bidder, the defendant Tropical Commercial Co., Inc. Hence,
on January 20, 1966, the City Council approved Resolution No. 122, which we
quote as follows:
RESOLVED, to request the Award Committee to forward to this
Body the pertinent papers in connection with the bidding for two

(2) complements of light and heavy equipments to be used by

the City Engineering Department for ratification by this Body.
d) Notwithstanding the request contained in Resolution No. 122, the defendant
City Mayor, Carlos J. Cuizon, without having been duly authorized thru proper
resolution of the City Council, and without compliance with Resolution No. 122,
signed a contract with the Tropical Commercial Co., Inc. for the acquisition of the
heavy equipments on February 5, 1966. 3
e) On February 14, 1966, the City Council, without knowledge that the contract
had already been signed by defendant City Mayor Carlos J. Cuizon and the
Tropical Commercial Co., Inc. since the same was signed in the City of Manila
approved Resolution No. 292, which we quote as follows:
RESOLVED, to reiterate this City Council's request embodied in
its Resolution No. 122, current series, addressed to the Award
Committee to forward to this body the pertinent papers in
connection with the bidding for two (2) complements of light and
heavy equipments to be used by the City Engineering
Department for ratification by this Body.
f) On March 10, 1966, in view of the fact that the defendant City Mayor ignored the requests of the City
Council, the said City Council approved Resolution No. 473
RESOLVED, to revoke Resolution No. 1648 dated November 29,
1965 and Resolution No. 1831, dated December 23, 1965,
authorizing His Honor, the City Mayor, to negotiate and to
contract for, by public bidding, on deferred payment plan and by
lot bid, U.S. or European made road construction equipments for
the City of Cebu and authorizing him for this purpose, to sign the
corresponding contract and other pertinent papers and
authorizing the City Mayor to utilize the Time Deposit of the City
of Cebu with the Philippine National Bank, as bond guarantee in
the opening of a Letter of Credit in connection with the City of
Cebu's application to directly purchase road construction
equipments from abroad, to the extent of the amount that the
Letter of Credit may require, respectively.
On March 18, 1966, the presiding officer of the City Council, City Councilor Florencio S. Urot, sent a
telegram to the Manager of the Philippine National Bank
BEEN INFORMED BY MANAGER DIKITANAN CEBU BRANCH
THAT MAYOR CUIZON CEBU CITY OPENED LETTER OF
CREDIT FOR PURCHASE OF HEAVY EQUIPMENT STOP
PLEASE BE INFORMED THAT CEBU CITY COUNCIL HAS
REVOKED MAYOR'S AUTHORITY ON THIS PARTICULAR
MATTER LAST MARCH TEN THEREBY SUSPENDING
FURTHER NEGOTIATIONS ON THIS TRANSACTION END.
) On March 18, 1966, the defendant Acting City Treasurer, Jesus E. Zabate, sent
a reply to the Asst. Vice-President of the defendant Philippine National Bank in
Cebu City refusing the request of the Philippine National Bank (to withhold
P3,000,000.00 from the time deposit of the City of Cebu) on the ground that no

appropriation for the purchase of heavy equipments was made by the City
Council.
i) That notwithstanding the knowledge of the revocation by Resolution No. 473 of
Resolution No. 1648 and Resolution No. 1831, series of 1965 of the City Council
of Cebu City, the said City Mayor, Carlos J. Cuizon, continued with the
transaction by placing the order with the Equipment Division of the Continental
Ore Corporation of New York U.S.A. for the purchase of the said heavy
equipments. 4
It seems clearly self-evident from the foregoing recitation of the undisputed antecedents and factual
background that the lower court gravely erred in issuing its dismissal order on the ground of plaintiffs'
alleged lack of interest or legal standing as city councilors or as taxpayers to maintain the case at bar.
The lower court founded its erroneous conclusion on the equally erroneous premise of citing and applying
Article 1397 of the Civil Code that "the action for the annulment of contracts may be instituted (only) by all
who are thereby obliged principally or subsidiarily." 15
The lower court's fundamental error was in treating plaintiffs' complaint as a personal suit on their own
behalf and applying the test in such cases that plaintiffs should show personal interest as parties who
would be benefited or injured by the judgment sought. Plaintiffs' suit is patently not a personal suit.
Plaintiffs clearly and by the express terms of their complaint filed the suit as a representative suit on
behalf and for the benefit of the city of Cebu.
Without passing upon or prejudging the merits of the complaint, it is not disputed that taken by
themselves without considering the contrary evidence or defenses that might properly be set up by
defendants at the trial, the allegations of the complaint state a sufficient cause of action on the basis of
which judgment could be validly rendered by the lower court declaring the nullity of the questioned
contract and letters of credit and declaring the City of Cebu exempt and free from any and all liability on
account thereof, as prayed for by plaintiffs. Defendant bank in its brief concedes that "we find no ruling
that the complaint was dismissed for lack of cause of action against the appellee Philippine National
Bank." 16
The appeal at bar must therefore be granted and the case ordered remanded to the lower court where the
parties may be properly given the opportunity at the trial to present evidence in support of their respective
contentions for disposition and judgment on the merits.
2. The lower court entirely missed the point that the action filed by plaintiffs-appellants as city councilors
(composing practically the entire city council, at that) and as city taxpayers is to declare null and void the
P3-million contract executed by defendant city mayor for the purchase of road construction equipment
purportedly on behalf of the city from its co-defendant Tropical and to declare equally null and void the
corresponding letters of credit opened with the bank by defendant mayor and to prevent the disbursement
of any city funds therefor and to exempt the City of Cebuand hold it not liable for any obligation arising
from such contract and letters of credit specifically and precisely questioned in the complaint filed by
plaintiffs on behalf of the City as having been executed without authority and contrary to law.
Plaintiffs' suit is clearly not one brought by them in their personal capacity for the annulment of a particular
contract entered into between two other contracting parties, in which situation Article 1397 of the Civil
Code may rightfully be invoked to question their legal capacity or interest to file the action, since they are
not in such case in anyway obliged thereby principally or subsidiarily.
On the contrary, plaintiffs' suit is one filed on behalf of the City of Cebu, instituted by them in pursuance of
their prerogative and duty as city councilors and taxpayers, in order to question and declare null and void
a contract which according to their complaint was executed by defendant city mayor purportedly on behalf
of the city without valid authority and which had been expressly declared by the Auditor-General to be null

and void ab initio and therefore could not give rise to any valid or allowable monetary claims against the
city.
Even defendant Tropical so understood that plaintiffs' suit was a representative suit in behalf of the City of
Cebu, hence their counterclaim in their answer, should the lower court uphold plaintiffs' "capacity or
interest to bring this suit in behalf of the City of Cebu," for judgment against the City of Cebu for the
repayment with legal interest of bank charges in the total sum of P242,939.90 which it had advanced on
the letters of credit opened by the defendant bank at the mayor's instance in favor of its U.S.
supplier, supra." 18
Parenthetically, it may be noted with reference to said letters of credit opened by the bank at the mayor's
instance, that the same were caused by the mayor to be established, according to the allegations of the
complaint, notwithstanding the mayor's knowledge and notice of the city council having revoked by its
resolution No. 473 on March 10, 1966 its previous resolutions authorizing him to enter into the
transaction, supra. 19
4. Plaintiffs' right and legal interest as city councilors to file the suit below and to prevent what they believe
to be unlawful disbursements of city funds by virtue of the questioned contracts and commitments entered
into by the defendant city mayor notwithstanding the city council's revocation of his authority with due
notice thereof to defendant bank must likewise be recognized.
The lower court's narrow construction of the city charter, Republic Act No. 3857, that under section 20 (c)
thereof, it is only the city mayor who is empowered "to cause to be instituted judicial proceedings to
recover properties and funds of the city wherever found and cause to be defended all suits against the
city," and that plaintiffs' suit must therefore fail since "there is no provision in the said charter which
authorizes expressly or impliedly the city council or its members to bring an action in behalf of the city"
cannot receive the Court's sanction.
The case at bar shows the manifest untenability of such a narrow construction. Here where the defendant
city mayor's acts and contracts purportedly entered into on behalf of the city are precisely questioned as
unlawful, ultra vires and beyond the scope of his authority, and the city should therefore not be bound
thereby nor incur any liability on account thereof, the city mayor would be the last person to file such a
suit on behalf of the city, since he precisely maintains the contrary position that his acts have been lawful
and duly bind the city.
To adhere to the lower court's narrow and unrealistic interpretation would mean that no action against a
city mayor's actuations and contract in the name and on behalf of the city could ever be questioned in
court and subjected to judicial action for a declaration of nullity and invalidity, since no city mayor would
file such an action on behalf of the city to question, much less nullify, contracts executed by him on behalf
of the city and which he naturally believes to be valid and within his authority.
Under such circumstances, in the same manner that a stockholder of a corporation is permitted to
institute derivative or representative suits as nominal party plaintiff for the benefit of the corporation which
is the real party in interest, 20more so may plaintiffs as city councilors exclusively empowered by the city
charter to "make all appropriations for the expenses of the government of the city" 21 and who were the
very source of the authority granted to the city mayor to enter into the questioned transactions which
authority was later revoked by them, as per the allegations of the complaint at bar, be deemed to possess
the necessary authority, and interest, if not duty, to file the present suit on behalf of the City and to prevent
the disbursement of city funds under contracts impugned by them to have been entered into by the city
mayor without lawful authority and in violation of law.
ANTONIO C. RAMOS, et al, petitioners,
vs.
COURT OF APPEALS, MUNICIPALITY OF BALIUAG, et al, respondents.

On April 18, 1990, petitioners Antonio C. Ramos, Rosalinda M. Perez, Norma C.

Castillo, and the Baliuag Market Vendors Association, Inc. filed a petition before
the court a quo docketed as Civil Case No. 264-M-9 for the Declaration of Nullity
of Municipal Ordinances No. 91 (1976) and No. 7 (1990) and the contract of
lease over a commercial arcade to be constructed in the municipality of Baliuag,
Bulacan.
On April 27, 1980, during the hearing on the petitioners' motion for the issuance
of preliminary injunction, was issued by the court a quo on May 9, 1990.
Meanwhile, on May 3, 1990, the provincial Fiscal and the Provincial Attorney,
Oliviano D. Regalado, filed an Answer in (sic) behalf of respondent municipality.
At the pre-trial conference scheduled on May 28, 1990, Atty. Roberto B.
Romanillos appeared, manifesting that he was counsel for respondent
municipality. On the same date, and on June 15, 1990, respectively, Atty.
Romanillos filed a motion to dissolve injunction and a motion to admit an
Amended Answer with motion to dismiss.
On June 18, 1990, Provincial Attorney Oliviano D. Regalado appeared as
collaborating counsel of Atty. Romanillos. The Provincial Fiscal did not appear. It
was Atty. Romanillos who submitted the Reply to petitioners' Opposition to
respondents' motion to dissolve injunction. It was also Atty. Romanillos who
submitted a written formal offer of evidence on July 17, 1990 for respondent
municipality.
During the hearing on August 10, 1990, petitioners questioned the personality of
Atty. Romanillos to appear as counsel of (sic) the respondent municipality, which
opposition was reiterated on August 15, 1990, and was put in writing in
petitioners' motion of August 20, 1990 to disqualify Atty. Romanillos from
appearing as counsel for respondent municipality and to declare null and void the
proceedings participated in and undertaken by Atty. Romanillos.
Meanwhile, Atty. Romanillos and Atty. Regalado filed a joint motion dated August
22, 1990 stating, among others, that Atty. Romanillos was withdrawing as
counsel for respondent municipality and that Atty. Regalado, as his collaborating
counsel for respondent municipality, is adopting the entire proceedings
participated in/undertaken by Atty. Romanillos.
On September 19, 1990 respondent Judge issued the Order now being assailed which, as already stated,
denied petitioners' motion to disqualify Atty. Romanillos as counsel for respondent municipality and to
declare null and void the proceeding participated in by Atty. Romanillos; and on the other hand, granted
Atty. Regalado's motion "to formally adopt the entire proceedings including the formal offer of evidence".
The different allegations boil down to three main issues: (1) Who is authorized to represent a municipality
in a civil suit against it? (2) What is the effect on the proceedings when a private counsel represents a
municipality? Elsewise stated, may be the proceedings be validated by a provincial attorney's adoption of
the actions made by a private counsel? (3) Does a motion of withdrawal of such unauthorized
appearance, and adoption of proceedings participated in by such counsel have to comply with Sections 4
and 5 12 of Rule 15 of the Rules of Court?
First Issue: Who is Authorized to Represent
a Municipality in its Lawsuits?

In the recent case of Municipality of Pililla, Rizal vs. Court of Appeals, 13 this Court, through Mr. Justice
Florenz D. Regalado, set in clear-cut terms the answer to the question of who may legally represent a
municipality in a suit for or against it, thus: 14
. . . The matter of representation of a municipality by a private attorney has been
settled in Ramos vs. Court of Appeals, et al., 15 and reiterated in Province of
Cebu vs. Intermediate Appellate Court, et al., 16 where we ruled that private
attorneys cannot represent a province or municipality in lawsuits.
Section 1683 of the Revised Administrative Code provides:
Sec. 1683. Duty of fiscal to represent provinces and provincial
subdivisions in litigation. The provincial fiscal shall represent
the province and any municipality or municipal district thereof in
any court, except in cases whereof (sic) original jurisdiction is
vested in the Supreme Court or in cases where the municipality
or municipal district in question is a party adverse to the
provincial government or to some other municipality or municipal
district in the same province. When the interests of a provincial
government and of any political division thereof are opposed, the
provincial fiscal shall act on behalf of the province.
When the provincial fiscal is disqualified to serve any
municipality or other political subdivision of a province a special
attorney may be employed by its council. 17
Under the above provision, complemented by Section 3, Republic Act No. 2264,
the Local Autonomy Law, 18only provincial fiscal and the municipal attorney can
represent a province or municipality in their lawsuits. The provision is mandatory.
The municipality's authority to employ a private lawyer is expressly limited only to
situations where the provincial fiscal is disqualified to represent it. 19
For the aforementioned exception to apply, the fact that the provincial fiscal was
disqualified to handle the municipality's case must appear on record. 20 In the
instant case, there is nothing in the records to show that the provincial fiscal is
disqualified to act as counsel for the Municipality of Pililla on appeal, hence the
appearance of herein private counsel is without authority of law.
The provincial fiscal's functions as legal officer and adviser for the civil cases of a province and corollarily,
of the municipalities thereof, were subsequently transferred to the provincial attorney. 21
The foregoing provisions of law and jurisprudence show that only the provincial fiscal, provincial attorney,
and municipal attorney should represent a municipality in its lawsuits. Only in exceptional instances may a
private attorney be hired by a municipality to represent it in lawsuits. These exceptions are enumerated in
the case of Alinsug vs. RTC Br. 58, San Carlos City, Negros Occidental, 22 to wit: 23
Indeed, it appears that the law allows a private counsel to be hired by a municipality only when the
municipality is an adverse party in a case involving the provincial government or another municipality or
city within the province.
This strict coherence to the letter of the law appears to have been dictated by the
fact that "the municipality should not be burdened with expenses of hiring a
private lawyer" and that the interests of the municipality would be best protected
if a government lawyer handles its litigations. (Emphasis supplied.)

None of the foregoing exceptions is present in this case. It may be said that Atty. Romanillos appeared for
respondent municipality inasmuch as he was already counsel of Kristi Corporation which was sued with
respondent municipality in this same case. The order of the trial court dated September 19, 1990, stated
that Atty. Romanillos "entered his appearance as collaborating counsel of the provincial prosecutor and
the provincial attorney." 24 This collaboration is contrary to law and hence should not have been
recognized as legal. It has already been ruled in this wise:
The fact that the municipal attorney and the fiscal are supposed to collaborate
with a private law firm does not legalize the latter's representation of the
municipality of Hagonoy in Civil Case No. 5095-M. While a private prosecutor is
allowed in criminal cases, an analogous arrangement is not allowed in civil cases
wherein a municipality is the plaintiff. 25
As already stated, private lawyers may not represent municipalities on their own. Neither
may they do so even in collaboration with authorized government lawyers. This is
anchored on the principle that only accountable public officers may act for and in behalf
of public entities and that public funds should not be expanded to hire private lawyers.
Petitioners cannot be held in estoppel for questioning the legality of the appearance of Atty. Romanillos,
notwithstanding that they questioned the witnesses of respondent municipality during the hearing of its
motion to dissolve the preliminary injunction. Municipality of Pililla, Rizal vs. Court of Appeals 26 held that
the legality of the representation of an unauthorized counsel may be raised at any stage of the
proceedings.
Elementary fairness dictates that parties unaware of the unauthorized representation should not be held
in estoppel just because they did not question on the spot the authority of the counsel for the municipality.
The rule on appearances of a lawyers is that
(u)ntil the contrary is clearly shown, an attorney is presumed to be acting under authority of the litigant
whom he purports to represent.
Second Issue: Effect on Proceedings by Adoption
of Unauthorized Representation
Would the adoption by Atty. Regalado of the proceedings participated in by Atty. Romanillos validate such
proceedings? We agree with public respondent that such adoption produces validity. Public respondent
stated the reasons 29 to which we agree:
Moreover, it does not appear that the adoption of proceedings participated in or
undertaken by Atty. Romanillos when he was private counsel for the respondent
municipality of Baliuag such as the proceedings on the motion to dissolve the
injunction, wherein petitioners had even cross-examined the witnesses presented
by Atty. Romanillos in support of said motion and had even started to present
their witnesses to sustain their objection to the motion would have resulted in
any substantial prejudice to petitioners' interest. As Wee see it, to declare the
said proceedings null and void notwithstanding the formal adoption thereof by
Atty. Regalado as Provincial Attorney of Bulacan in court and to require trial
anew to cover the same subject matter, to hear the same witnesses and to admit
the same evidence adduced by the same parties cannot enhance the promotion
of justice.
This Court believes that conferring legitimacy to the appearance of Atty. Romanillos would not cause
substantial prejudice on petitioners. Requiring new trial on the mere legal technicality that the municipality
was not represented by a legally authorized counsel would not serve the interest of justice. After all, this

Court does not see any injustice committed against petitioners by the adoptions of the work of private
counsel nor any interest of justice being served by requiring retrial of the case by the duly authorized legal
representative of the town.
In sum, although a municipality may not hire a private lawyer to represent it in litigations, in the interest of
substantial justice however, we hold that a municipality may adopt the work already performed in good
faith by such private lawyer, which work is beneficial to it (1) provided that no injustice is thereby heaped
on the adverse party and (2) provided further that no compensation in any guise is paid therefor by said
municipality to the private lawyer. Unless so expressly adopted, the private lawyers work cannot bind the
municipality.
Third Issue: "Joint Motion" Need Not Comply with Rule 15
We also agree with the justification of public respondent that a motion to withdraw the appearance of an
unauthorized lawyer is a non-adversarial motion that need not comply with Section 4 Rule 15 as to notice
to the adverse party. The disqualification of Atty. Romanillos was what petitioners were really praying for
when they questioned his authority to appear for the municipality. The disqualification was granted,
thereby serving the relief prayed for by petitioners. such being the case, no "notice directed to the parties
concerned and served at least 3 days before the hearing thereof" 30need be given petitioners, the
questioned motion not being contentious. Besides, what petitioners were questioning as to lack of
authority was remedied by the adoption of proceedings by an authorized counsel, Atty. Regalado. The
action of the trial court allowing the motion of respondent municipality effectively granted petitioners
motion to disqualify Atty. Romanillos.
Section 481. Qualifications, Terms, Powers and Duties.
XXX
(3) In addition to the foregoing duties and functions, the legal officer shall:
(i) Represent the local government unit in all civil actions and special
proceedings wherein the local government unit or any official thereof, in
his official capacity, is a party: Provided, That, in actions or proceedings
where a component city or municipality is a party adverse to the
provincial government or to another component city or municipality, a
special legal officer may be employed to represent the adverse party;
PEOPLE OF THE PHILIPPINES, Petitioner,
vs.
SANDIGANBAYAN (1st Division), et al, Respondents.
Private respondents then Calamba Mayor Severino J. Lajara and his fellow local public officials Dennis
Lanzanas, Apolonio A. Elasigue, Senador C. Alcalde, Emilio C. Rodriguez, Efren M. Garcia, Frisco L.
Ona, Renato A. Bunyi, Diosdado M. Lajara, Crispin M. Contreras, Jorge M. Javier were, together with
Jesus V. Garcia, President of Australian Professional Realty (APRI), charged before the Sandiganbayan
under three separate informations for violation of Sections 3(e), (g) and (j) of Republic Act No. 3019 (the
Anti-Graft and Corrupt Practices Act).
The charges arose from private respondents public officials entering, pursuant to Municipal Ordinance
No. 497, into a Memorandum of Agreement4 (MOA) dated December 5, 1994 with APRI represented by
respondent Garcia for the construction of the Calamba Shopping Center under the "Build-OperateTransfer" scheme in Republic Act 6957,5 as amended by R.A. 7718.

On February 6, 1996, private respondents filed a Petition for Reinvestigation 9 and a Motion to Suspend
Proceedings and to Hold in Abeyance the Issuance of Warrant of Arrest 10 due to the pendency of two civil
actions for the nullification of the MOA, Civil Case No. 2180-95-C, "Merlinda Paner, for herself and for the
vendors of the Calamba Public Market v. Mayor Severino Lajara & Australian Professional Realty,
Inc.," 11 and Civil Case No. 2186-95-C,"Calamba Vendors Credit Cooperative and its Members v. The
Municipality of Calamba, Laguna, Mayor Sereriano Lajara and Australian Professional Realty, Inc.," 12 at
Branch 92 of the Regional Trial Court of Calamba City (the trial court), they alleging that the said civil
cases raised prejudicial questions which must first be resolved as they are determinative of their
innocence or guilt.
By Order13 of February 16, 1996, the Sandiganbayan held in abeyance the issuance of orders of arrest
pending further study by the prosecution on whether the informations, as worded, can "reasonably
produce conviction."
After reinvestigation, the Office of the Special Prosecutor submitted to the Ombudsman a
Memorandum14recommending the dismissal of the criminal cases upon finding that the Calamba
Shopping Center was not listed as a priority project, hence, no bidding was required; APRI was a project
initiator and not a contractor, hence, it did not have to register and be accredited by the Philippine
Contractors Accreditation Board (PCAB); and for the purpose of constructing the shopping center, APRI
has, aside from its paid-up capital stock, credit line facilities of 150 million pesos. 15
But even gratuitously resolving the petition on the issue of grave abuse of discretion, 35 the petition just the
same fails as no grave abuse of discretion can be appreciated from the Sandiganbayans quashal of the
informations.
While the filing of Criminal Case Nos. 23153-23155 was premised on the alleged violation by private
respondents of Sections 3 (j), (g), and (e) of RA No. 3019 for entering, in behalf of the municipality, into a
MOA with APRI, and the filing of Civil Case No. 2180-95-C was instituted to invalidate the MOA, the
following issues, identified by the trial court in the said civil case as necessary to determine the validity or
nullity of the MOA:
1. Whether or not SB Resolution No. 497 of the Municipality of Calamba is valid in that it
was ratified or not ratified by the Sangguniang Panlalawigan;
2. Whether or not the questioned MOA is valid when APRI is not accredited with the
Philippine Contractors Accredita[tion] Board (PCAB) and has an authorized capital stock
of only 2 Million Pesos and a paid up capital stock of only P125,000.00;
3. Whether or not the questioned MOA is valid without public bidding of the project;
4. Whether or not the execution of the questioned MOA complies with the mandatory
requirement of the Buil[d] [sic] Operate and Transfer (BOT) RA 6957 as amended by RA
7718 and its implementing rules and regulations (IRR);
5. Whether or not the questioned MOA is grossly disadvantageous to the Municipality of
Calamba.,36
are logical antecedents of the following issues raised in the criminal cases, the resolution of which logical
antecedents belongs to the trial court in the civil case: (1) whether private respondents granted in favor of
APRI the privilege of constructing the Calamba Shopping Center despite knowledge that APRI was not
qualified - not having been accredited by the PBAC as Class AAA contractor because its paid up capital
only amounts to P125,000 [Information in Criminal Case No. 23153]; (2) whether the terms and conditions
of the MOA entered into by private respondents for and in behalf of the municipality were manifestly and
grossly disadvantageous to the municipality [Information in Criminal Case No. 23154]; and (3) whether

private respondents through evident bad faith caused undue injury to the complainants and to the
government for entering into a MOA, knowing that (a) Municipal Ordinance No. 497 which gave authority
to the Mayor to enter into said agreement was still under study by the Sangguniang Panlalawigan of
Laguna, (b) APRI was not an accredited contractor, and (c) no pre-qualification, bidding and awarding of
the project was conducted.
Indeed, there would be no reason to proceed with the criminal cases in light of the trial courts findings,
which had become final and executory after the appellate court considered the appeal therefrom
abandoned and dismissed, that the MOA was valid as APRI was qualified to enter into the same; APRI
and the municipality through private respondents complied with all the procedural requirements necessary
for entering into the MOA; and the terms and conditions of the MOA were not grossly disadvantageous to
the municipality.
. . . The fact that APRI is not accredited with the P[hilippine C[ontractors] A[djudication] B[oard] or has
only a capital stock of only 2 Million Pesos and a paid-up capital of only P125,000.00 will not by itself
nullify the MOA. A contractor may or may not be the project proponent (Sec. 2 (e) RA 7718). A project
proponent is the private sector entity which shall have contractual responsibility for the project which shall
have an adequate financial base to implement said project consisting of equity and firm commitments
from reputable financial institutions to provide sufficient credit lines to cover the total estimate cost of the
project (Sec. 2(k) RA 7718). APRI is a BOT project proponent and not a contractor to undertake actual
construction for the project and thus, APRI need not register with and be accredited by the PCAB (p. 9,
TSN of November 11, 1999). . . .
xxxx
The Court is convinced by the defendants evidence that APRI has sufficient financial base or capability to
implement the project with a[n] estimated project cost of 150 Million Pesos (Exh. "16-A"). The initial
authorized capital stock of APRI of 2 Million Pesos is supplemented by Brilliant Star Capital Lending in the
amount of 150 Million Pesos (p. 10 TSN September 5, 1999 and Exh. "11"). On top of this, the initial
authorized capital stock of 2 Million Pesos is in the process of being increased (pages 3 to 6 TSN of
November 11, 1999).
xxxx
. . . The requirement of public bidding, as well as the process and procedures thereof, mandated by the
BOT law do not apply to unsolicited proposals for projects.
Projects to be implemented under unsolicited proposals need not comply with the requirements, process
and procedures of public bidding.
. . . Atty. Marciano likewise testified that the proposal for the construction of the Calamba Shopping Center
is under the Unsolicited Proposal and that there is no need for bidding based on the letter dated August
17, 1995 to APRI by NEDA Regional Director Mr. Catalino Boquiren to the effect that the Calamba
Shopping Center is not covered by ICC/NEDA review and approval (p. 9, TSN of September 2, 1999).
NEDA Regional Director Mr. Catalino Boquiren was presented by the plaintiffs as their witness and he
identified his August 17, 1995 letter to APRI marked as Exhs. "10" and "10-A" (pages 7 to 8, TSN of
March 20, 1997). . . .39 (Underscoring supplied)
The qualification of APRI to enter into the MOA with the municipality having been duly established, private
respondents could no longer be held accountable under Section 3 (j) which punishes the act of public
officers of knowingly granting a license, permit, privilege or advantage to a person not qualified or legally
entitled thereto.

The absence of the element under Section 3 (g) that the MOA was grossly or manifestly disadvantageous
to the municipality reflected in the following findings of the trial court bears noting:
. . . The Calamba Shopping Center Project, as an Unsolicited Proposal, does not require government
guarantee, subsidy or equity. Indeed the very provisions of the questioned MOA in its whereas show in
unmistakable terms that no cost or expenses [sic] [o]n the part of the Municipality of Calamba shall be
required in the construction of the project in this wise: WHEREAS, the first party (The Municipality of
Calamba) desires to have a shopping center for the residents of Calamba, Laguna and the nearby towns
and cities that would serve as one of the major trading point[s] in the Province of Laguna; WHEREAS, the
second party (APRI) is willing and able to help the FIRST PARTY in achieving its aforementioned
objectives by constructing and operating a shopping center with modern and sleek design without cost or
expense on the part of the first party pursuant to Buil[d]-Operate-Transfer Scheme" under RA 6957, as
amended by RA 7718;
This very clear and unmistakable terms of the questioned MOA belie the claim of the plaintiffs that said
MOA is grossly disadvantageous to the municipality. On the contrary, the Court sees the construction of
the Calamba Shipping Center under the MOA [as] a rare happening with tremendous benefits to the
citizenry not only of Calamba but also of the neighboring towns of the province, and this without any cost
or expense on the coffers of the municipality. The Court takes judicial notice of the fact that at present, the
Calamba Shopping Center, which is just about a stone-throw away from this Court, has been already in
operation, albeit still incomplete, with buildings and infrastructures in modern design constructed without
cost to the municipality to be enjoyed by the constituents now and in the years to come.
As matters stand now, the Municipality of Calamba is the beneficiary of all the improvements constructed
by APRI on its former market site. The parties may differ as to how to recompense APRI for such
improvements and what will guide them in view of the re[s]cission of the BOT Contract. Certainly, the
parties did not sustain damage by such re[s]cission and they cannot be heard to complain about it.
To the mind of the Court, the BOT Contract did not work any damage to the municipality, much more
placed the municipality in any kind of disadvantageous position. It did not either place the APRI in any
disadvantageous situation, now that the contract [wa]s rescinded by the municipal
council.40 (Underscoring supplied)
For the charge of Section 3 (e) to prosper, the following elements must be present: (1) the accused is a
public officer or private person charged in conspiracy with the former; (2) the public officer commits the
prohibited acts during the performance of his official duties or his relation to his public positions; (3) he
causes undue injury to any party, whether the Government or a private party; (4) such injury is caused by
giving unwarranted benefits, advantage or preference to such parties; and (5) the public officer has acted
with manifest partiality, evident bad faith or gross inexcusable negligence.
Assuming arguendo that an ordinance awarding a contract to an unqualified entity not having been
ratified by the Sangguniang Panlalawigan could result to prejudice to the government, the findings of the
trial court that (1) the ordinance was indeed ratified, (2) no public bidding was required, (3) the MOA
complied with the mandatory requirements under RA 6957, as amended by RA No.7718 (Build, Operate
and Transfer Law), and (4) there was no evident bad faith on the part of the parties in executing the MOA
negate the existence of probable cause to justify haling private respondents into court for violation of
above-said Section 3 (e).
CC, Article 423. The property of provinces, cities, and municipalities is divided into property for public use
and patrimonial property. (343)
Article 424. Property for public use, in the provinces, cities, and municipalities, consist of the provincial
roads, city streets, municipal streets, the squares, fountains, public waters, promenades, and public works
for public service paid for by said provinces, cities, or municipalities.

All other property possessed by any of them is patrimonial and shall be governed by this Code, without
prejudice to the provisions of special laws. (344a)
BENJAMIN RABUCO, et al, petitioners,
vs.
HON. ANTONIO J. VILLEGAS et al, respondent.
The origin and background of the cases at bar which deal with the decisive issue of constitutionality of
Republic Act 3120 enacted on June 17, 1961, as raised by respondent mayor of Manila in resisting
petitioners' pleas that respondent mayor not only lacks the authority to demolish their houses or eject
them as tenants and bona fide occupants of a parcel of land in San Andres, Malate 2 but is also expressly
prohibited from doing so by section 2 of the Act, may be summarized from the Court of
Appeals' 3 certification of resolution of May 31, 1965 as follows:
It is significant to note, however, that what is sought by the respondent City
Mayor and City Engineer of Manila is not only the demolition of the petitioners'
houses in the premises in controversy, but their ejectment as well. Moreover,
Republic Act 3120 does intend not only the dismissal of the ejectment
proceedings against the petitioners from the land in controversy upon their
motion, but as well that any demolition order issued against them shall also have
to be dismissed. The law says:
Upon approval of this Act no ejectment proceedings against any
tenants or bona fide occupant shall be instituted and any
proceedings against any such tenant or bona fide occupant shall
be dismissed upon motion of the defendant. Provided, That any
demolition order directed against any tenant or bona
fide occupant thereof, shall be dismissed. (Sec. 2, R. A. 3120).
Indeed, the petitioners-appellants, who contended in the court below that it was not necessary to decide
on the validity or constitutionality of the law, now asseverate that 'Republic Act No. 3120 expressly
prohibits ejectment and demolition of petitioners' home.'
In the early morning of April 19, 1970, a large fire of undetermined origin gutted the Malate area including
the lot on which petitioners had built their homes and dwellings. Respondents city officials then took over
the lot and kept petitioners from reconstructing or repairing their burned dwellings. At petitioners' instance,
the Court issued on June 17, 1970 a temporary restraining order enjoining respondents city officials "from
performing any act constituting an interference in or disturbance of herein petitioners' possession of Lot
No. 21-B, Block No. 610, of the Cadastral Survey of the City of Manila" as safeguarded them under the
Court's subsisting preliminary injunction of August 17, 1965.
The "dominant and inextricable issue" at bar, as correctly perceived by the appellate court is the
constitutionality of Republic Act 3120 whereby Congress converted the lot in question together with
another lot in San Andres, Malate "which are reserved as communal property" into "disposable or
alienable lands of the State to be placed under the administration and disposal of the Land Tenure
Administration" for subdivision into small lots not exceeding 120 square meters per lot for sale on
installment basis to the tenants or bona fide occupants thereof 6 and expressly prohibited ejectment and
demolition of petitioners' homes under section 2 of the Act as quoted in the appellate court's certification
resolution, supra.
If the Act is invalid and unconstitutional for constituting deprivation of property without due process of law
and without just compensation as contended by respondents city officials, then the trial court's refusal to
enjoin ejectment and demolition of petitioners' houses may be upheld. Otherwise, petitioners' right under

the Act to continue possession and occupation of the premises and to the lifting and dismissal of the order
of demolition issued against them must be enforced and the trial court's judgment must be set aside.
Respondents city officials' contention that the Act must be stricken down as unconstitutional for depriving
the city of Manila of the lots in question and providing for their sale in subdivided small lots to bona fide
occupants or tenants without payment of just compensation is untenable and without basis, since the lots
in question are manifestly owned by the city in its public and governmental capacity and are therefore
public property over which Congress had absolute control as distinguished from patrimonial property
owned by it in its private or proprietary capacity of which it could not be deprived without due process and
without just compensation. 7
Here, Republic Act 3120 expressly declared that the properties were "reserved as communal property"
and ordered their conversion into "disposable and alienable lands of the State" for sale in small lots to the
bona fide occupants thereof. It is established doctrine that the act of classifying State property calls for the
exercise of wide discretionary legislative power which will not be interfered with by the courts.
The Court therein reaffirmed the established general rule that "regardless of the source or classification of
land in the possession of a municipality, excepting those acquired with its own funds in its private or
corporate capacity, such property is held in trust for the State for the benefit of its inhabitants, whether it
be for governmental or proprietary purposes. It holds such lands subject to the paramount power of the
legislature to dispose of the same, for after all it owes its creation to it as an agent for the performance of
a part of its public work, the municipality being but a subdivision or instrumentality thereof for purposes of
local administration. Accordingly, the legal situation is the same as if the State itself holds the property
and puts it to a different use" 9 and stressed that "the property, as has been previously shown, was not
acquired by the City of Manila with its own funds in its private or proprietary capacity. That it has in its
name a registered title is not questioned, but this title should be deemed to be held in trust for the
State as the land covered thereby was part of the territory of the City of Manila granted by the sovereign
upon its creation." 10
There as here, the Court holds that the Acts in question (Republic Acts 4118 in Salas and Republic Act
3120 in the case at bar) were intended to implement the social justice policy of the Constitution and the
government program of land for the landless and that they were not "intended to expropriate the property
involved but merely to confirm its character as communal land of the State and to make it available for
disposition by the National Government: ... The subdivision of the land and conveyane of the resulting
subdivision lots to the occupants by Congressional authorization does not operate as an exercise of the
power of eminent domain without just compensation in violation of Section 1, subsection (2), Article III of
the Constitution, 11 but simply as a manifestation of its right and power to deal with state property." 12
Since the challenge of respondents city officials against the constitutionality of Republic Act 3120 must fail
as the City was not deprived thereby of anything it owns by acquisition with its private or corporate funds
either under the due process clause or under the eminent domain provisions of the Constitution, the
provisions of said Act must be enforced and petitioners are entitled to the injunction as prayed for
implementing the Act's prohibition against their ejectment and demolition of their houses.
FELICIDAD VILLANUEVA, et al, petitioners,
vs.
HON. MARIANO CASTAEDA, JR., Presiding Judge of the Court of First Instance of Pampanga,
Branch III, et al, respondents.
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. 10The 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
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.
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, 23decided 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.
Applying this well-settled doctrine, we rule that the petitioners had no right in the first place to occupy the
disputed premises and cannot insist in remaining there now on the strength of their alleged lease
contracts. They should have realized and accepted this earlier, considering that even before Civil Case
No. 2040 was decided, the municipal council of San Fernando had already adopted Resolution No. 29,
series of 1964, declaring the area as the parking place and public plaza of the municipality.
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.

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
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
FRANCISCO U. DACANAY, petitioner,
vs.
MAYOR MACARIO ASISTIO, JR., et al, respondents.
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.
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. Castaeda

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.
THE CITY OF ANGELES, et al, petitioners,
vs.
COURT OF APPEALS et al, respondents.
In resolving this petition, the Court addressed the questions of whether a donor of open spaces in a
residential subdivision can validly impose conditions on the said donation; whether the city government as
donee can build and operate a drug rehabilitation center on the donated land intended for open space;
and whether the said donation may be validly rescinded by the donor.
Petitioners claim they have the right to construct and operate a drug rehabilitation center on the donated
land in question, contrary to the provisions stated in the amended Deed of Donation.
On the other hand, private respondent, owner/developer of the Timog Park residential subdivision in
Angeles City, opposed the construction and now, the operation of the said center on the donated land,
which is located within said residential subdivision.
In a Deed of Donation dated March 9, 1984, subsequently superseded by a Deed of Donation dated
September 27, 1984, which in turn was superseded by an Amended Deed of Donation dated November
26, 1984, private respondent donated to the City of Angeles, 51 parcels of land situated in Barrio
Pampang, City of Angeles, with an aggregate area of 50,676 square meters, more or less, part of a bigger
area also belonging to private respondent. The amended deed 5 provided, among others, that:
2. The properties donated shall be devoted and utilized solely for the site of the
Angeles City Sports Center (which excludes cockfighting) pursuant to the plans
to be submitted within six (6) months by the DONEE to the DONOR for the
latter's approval, which approval shall not be unreasonably withheld as long as
entire properties donated are developed as a Sports Complex. Any change or
modification in the basic design or concept of said Sports Center must have the
prior written consent of the DONOR.
On July 19, 1988, petitioners started the construction of a drug rehabilitation center on a portion of the
donated land. Upon learning thereof, private respondent protested such action for being violative of the
terms and conditions of the amended deed and prejudicial to its interest and to those of its clients and
residents.
First Issue: Developer Legally Bound to Donate Open Space

The law involved in the instant case is Presidential Decree No. 1216, dated October 14, 1977, 9 which
reads:
PRESIDENTIAL DECREE NO. 1216
Defining "Open Space" In Residential Subdivisions And Amending Section 31 Of
Presidential Decree No. 957 Requiring Subdivision Owners To Provide Roads,
Alleys, Sidewalks And Reserve Open Space For Parks Or Recreational Use.
Sec. 31. Roads, Alleys, Sidewalks and Open Spaces The
owner as developer of a subdivision shall provide adequate
roads, alleys and sidewalks. For subdivision projects one (1)
hectare or more, the owner or developer shall reserve thirty
percent (30%) of the gross area for open space. Such open
space shall have the following standards allocated exclusively for
parks, playgrounds and recreational use:
a. 9% of gross area for high density or social housing (66 to 100
family lots per gross hectare).
b. 7% of gross area for medium-density or economic housing (21
to 65 family lots per gross hectare).
c. 3.5% of gross area for low-density or open market housing (20
family lots and below per gross hectare).
These areas reserved for parks, playgrounds and recreational use shall be non-alienable public lands,
and non-buildable.
Upon their completion certified to by the Authority, the roads, alleys, sidewalks
and playgrounds shall be donated by the owner or developer to the city or
municipality and it shall be mandatory for the local governments to
accept provided, however, that the parks and playgrounds maybe donated to the
Homeowners Association of the project with the consent of the city or
municipality concerned. No portion of the parks and playgrounds donated
thereafter shall be converted to any other purpose or purposes.
Pursuant to the wording of Sec. 31 of P.D. 957 as above amended by the aforequoted P.D. No. 1216,
private respondent is under legal obligation to donate the open space exclusively allocated for parks,
playgrounds and recreational use to the petitioner.
This can be clearly established by referring to the original provision of Sec. 31 of P.D. 957, which reads as
follows:
Sec. 31. Donation of roads and open spaces to local government The
registered owner developer of the subdivision or condominium project, upon
completion of the development of said project may, at his option, convey by way
of donation the roads and open spaces found within the project to the city or
municipality wherein the project is located. Upon acceptance of he donation by
the city or municipality concerned, no portion of the area donated shall thereafter
be converted to any other purpose or purposes unless after hearing, the
proposed conversion is approved by the Authority. (Emphasis supplied)

It will be noted that under the aforequoted original provision, it was optional on the part of the owner or
developer to donate the roads and spaces found within the project to the city or municipality where the
project is located. Elsewise stated, there was no legal obligation to make the donation.
However, said Sec. 31 as amended now states in its last paragraph:
Upon their completion . . ., the roads, alleys, sidewalks and playgrounds shall be
donated by the owner or developer to the city or municipality and it shall be
mandatory for the local government to accept;provided, however, that the parks
and playgrounds may be donated to the Homeowners Association of the project
with the consent of the city or must concerned. . . .
Third Issue: Imposition of Conditions in Donation of Open Space
Petitioners argue that since the private respondent is required by law to donate the parks and
playgrounds, it has no right to impose the condition in the Amended Deed of Donation that "the properties
donated shall be devoted and utilized solely for the site of the Angeles City Sports Center." It cannot
prescribe any condition as to the use of the area donated because the use of the open spaces already
governed by P.D. 1216. In other words, the donation should be absolute. Consequently, the conditions in
the amended deed which were allegedly violated are deemed not written. Such being the case,
petitioners cannot be considered to have committed any violation of the terms and conditions of the said
amended deed, as the donation is deemed unconditional, and it follows that there is no basis for
revocation of the donation.
However, the general law on donations does not prohibit the imposition of conditions on a donation so
long as the conditions are not illegal or impossible. 11
In regard to donations of open spaces, P.D. 1216 itself requires among other things that the recreational
areas to be donated be based, as aforementioned, on a percentage (3.5% 7%, or 9%) of the total area of
the subdivision depending on whether the division is low , medium , or high-density. It further
declares that such open space devoted to parks, playgrounds and recreational areas are non-alienable
public land and non-buildable. However, there is no prohibition in either P.D. 957 or P.D. 1216 against
imposing conditions on such donation.
We hold that any condition may be imposed in the donation, so long as the same is not contrary to law,
morals, good customs, public order or public policy. The contention of petitioners that the donation should
be unconditional because it is mandatory has no basis in law. P.D. 1216 does not provide that the
donation the open space for parks and playgrounds should be unconditional. To rule that it should be so is
tantamount to unlawfully expanding, the provisions of the decree. 12
In the case at bar, one of the conditions imposed in the Amended Deed of Donation is that the donee
should build a sports complex on the donated land. Since P.D. 1216 clearly requires that the 3.5% to 9%
of the gross area alloted for parks and playgrounds is "non-buildable", then the obvious question arises
whether or not such condition was validly imposed and is binding on the donee. It is clear that the "nonbuildable" character applies only to the 3.5% to 9% area set by law. If there is any excess land over and
above the 3.5% to 9% required by the decree, which is also used or allocated for parks, playgrounds and
recreational purposes, it is obvious that such excess area is not covered by the non-buildability restriction.
In the instant case, if there be an excess, then the donee would not be barred from developing and
operating a sports complex thereon, and the condition in the amended deed would then be considered
valid and binding.
To determine if the over 50,000 square meter area donated pursuant to the amended deed would yield an
excess over the area required by the decree, it is necessary to determine under which density category
the Timog Park subdivision falls.

If the subdivision falls under the low density or open market housing category, with 20 family lots or below
per gross hectare, the developer will need to allot only 3.5% of gross area for parks and playgrounds, and
since the donated land constitutes "more than five (5) percent of the total land area of the
subdivision 13 there would therefore be an excess of over 1.5% of gross area which would not be nonbuildable. Petitioners, on the other hand, alleged (and private respondent did not controvert) that the
subdivision in question is a "medium-density or economic housing" subdivision based on the sizes of the
family lots donated in the amended deed, 14 for which category the decree mandates that not less than
7% of gross area be set aside. Since the donated land constitutes only a little more than 5% of the gross
area of the subdivision, which is less than the area required to be allocated for non-buildable open space,
therefore there is no "excess land" to speak of. This then means that the condition to build a sports
complex on the donated land is contrary to law and should be considered as not imposed.
Fourth Issue: Injunction vs. Construction of the Drug
Rehabilitation Center
Petitioners argue that the court cannot enjoin the construction of the drug rehabilitation center because
the decision of the court came only after the construction of the center was completed and, based on
jurisprudence, there can be no injunction unction of events that have already transpired. 15
In light of Sec. 31 of P.D. 957, as amended, declaring the open space for parks, playgrounds and
recreational area as non-buildable, it appears indubitable that the construction and operation of a drug
rehabilitation center on the land in question is a continuing violation of the law and thus should be
enjoined.
This Court finds no cogent reason to reverse the above mentioned findings of the respondent court. The
allegation of the petitioners that the construction of the center was finished before the judgment of the trial
court was rendered deserves scant consideration because it is self-serving and is completely
unsupported by other evidence.
The fact remains that the trial court rendered judgment enjoining the construction of the drug rehabilitation
center, revoking the donation and ordering the return of the donated land. In spite of such injunction,
petitioners publicly flaunted their disregard thereof with the subsequent inauguration of the center on
August 15, 1989. The operation of the center, after inauguration, is even more censurable.
Fifth Issue: Revocation of a Mandatory Donation Because of Noncompliance With an Illegal Condition
The private respondent contends that the building of said drug rehabilitation center is violative of the
Amended Deed of Donation. Therefore, under Article 764 of the New Civil Code and stipulation no. 8 of
the amended deed, private respondent is empowered to revoke the donation when the donee has failed
to comply with any of the conditions imposed in the deed.
We disagree. Article 1412 of the Civil Code which provides that:
If the act in which the unlawful or forbidden cause consists does not constitute a
criminal offense, the following rules shall be observed:
(1) When the fault is on the part of both contracting parties, neither may recover
what he has given by virtue of the contract, or demand the performance of the
other's undertaking;
comes into play here. Both petitioners and private respondents are in violation of P.D. 957
as amended, for donating and accepting a donation of open space less than that required

by law, and for agreeing to build and operate a sports complex on the non-buildable open
space so donated; and petitioners, for constructing a drug rehabilitation center on the
same non-buildable area.
Moreover, since the condition to construct a sport complex on the donated land has previously been
shown to be contrary to law, therefore, stipulation no. 8 of the amended deed cannot be implemented
because (1) no valid stipulation of the amended deed had been breached, and (2) it is highly improbable
that the decree would have allowed the return of the donated land for open space under any
circumstance, considering the non-alienable character of such open space, in the light of the second
Whereas clause of P.D. 1216 which declares that . . . such open spaces, roads, alleys and sidewalks in
residential subdivisions are for public use and are, therefore, beyond the commerce of men.
Further, as a matter of public policy, private respondent cannot be allowed to evade its statutory obligation
to donate the required open space through the expediency of invoking petitioners breach of the aforesaid
condition. It is a familiar principle that the courts will not aid either party to enforce an illegal contract, but
will leave them both where they find them. Neither party can recover damages from the other arising from
the act contrary to law, or plead the same as a cause of action or as a defense. Each must bear the
consequences of his own acts. 19
There is therefore no legal basis whatsoever to revoke the donation of the subject open space and to
return the donated land to private respondent. The donated land should remain with the donee as the law
clearly intended such open spaces to be perpetually part of the public domain, non-alienable and
permanently devoted to public use as such parks, playgrounds or recreation areas.
Removal/Demolition of Drug Rehabilitation Center
Inasmuch as the construction and operation of the drug rehabilitation center has been established to law,
the said center should be removed or demolished.
After due consideration of the circumstances, we believe that the fairest and most equitable solution is to
have the City of Angeles, donee of the subject open space and, ostensibly, the main beneficiary of the
construction and operation of the proposed drug rehabilitation center, undertake the demolition and
removal of said center, and if feasible, recover the cost thereof from the city officials concerned.
WHEREFORE, the assailed Decision of the Court of appeals hereby MODIFIED as follows:
(1) Petitioners are hereby ENJOINED perpetually from operating the drug rehabilitation center or any
other such facility on the donated open space.
(2) Petitioner City of Angeles is ORDERED to undertake and removal of said drug rehabilitation center
within a period of three (3) months from finality of this Decision, and thereafter, to devote public use as a
park, playground or other recreational use.
(3) The Amended Deed of Donation dated November 26, 1984 is hereby declared valid and subsisting,
except that the stipulations or conditions therein concerning the construction of the Sports Center or
Complex are hereby declared void and as if not imposed, and therefore of no force and effect.
FRANCISCO I. CHAVEZ, petitioner,
vs.
PUBLIC ESTATES AUTHORITY and AMARI COASTAL BAY DEVELOPMENT
CORPORATION, respondents.
However, the Supplement to "Separate Opinion, Concurring and Dissenting" of Justice Josue N. Bellosillo
brings to the Courts attention the Resolutions of this Court on 3 February 1965 and 24 June 1966 in L-

21870 entitled "Manuel O. Ponce, et al. v. Hon. Amador Gomez, et al." and No. L-22669 entitled "Manuel
O. Ponce, et al. v. The City of Cebu, et al." ("Ponce Cases"). In effect, the Supplement to the
Dissenting Opinion claims that these two Resolutions serve as authority that a single private
corporation like Amari may acquire hundreds of hectares of submerged lands, as well as
reclaimed submerged lands, within Manila Bay under the Amended Joint Venture Agreement
("Amended JVA").
We find the cited Ponce Cases inapplicable to the instant case.
First, as Justice Bellosillo himself states in his supplement to his dissent, the Ponce Cases admit
that "submerged lands still belong to the National Government."9 The correct formulation, however, is
that submerged lands are owned by the State and are inalienable. Section 2, Article XII of the 1987
Constitution provides:
All lands of the public domain, waters, minerals, coal, petroleum, and other mineral
oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and
other natural resources are owned by the State. With the exception of agricultural
lands, all other natural resources shall not be alienated. x x x. (Emphasis supplied)
Submerged lands, like the waters (sea or bay) above them, are part of the States inalienable natural
resources. Submerged lands are property of public dominion, absolutely inalienable and outside the
commerce of man.10 This is also true with respect to foreshore lands. Any sale of submerged or foreshore
lands is void being contrary to the Constitution. 11
This is why the Cebu City ordinance merely granted Essel, Inc. an "irrevocable option" to purchase the
foreshore lands after the reclamation and did not actually sell to Essel, Inc. the still to be reclaimed
foreshore lands. Clearly, in the Ponce Cases the option to purchase referred to reclaimed lands, and not
to foreshore lands which are inalienable. Reclaimed lands are no longer foreshore or submerged lands,
and thus may qualify as alienable agricultural lands of the public domain provided the requirements of
public land laws are met.
In the instant case, the bulk of the lands subject of the Amended JVA are still submerged lands even to
this very day, and therefore inalienable and outside the commerce of man. Of the 750 hectares subject of
the Amended JVA, 592.15 hectares or 78% of the total area are still submerged, permanently under
the waters of Manila Bay. Under the Amended JVA, the PEA conveyed to Amari the submerged lands
even before their actual reclamation, although the documentation of the deed of transfer and issuance of
the certificates of title would be made only after actual reclamation.
In the Ponce Cases, the City of Cebu retained ownership of the reclaimed foreshore lands and Essel, Inc.
only had an "irrevocable option" to purchase portions of the foreshore lands once actually reclaimed. In
sharp contrast, in the instant case ownership of the reclamation area, including the submerged lands, was
immediately transferred to the joint venture. Amari immediately acquired the absolute right to own 70%
percent of the reclamation area, with the deeds of transfer to be documented and the certificates of title to
be issued upon actual reclamation. Amaris right to own the submerged lands is immediately effective
upon the approval of the Amended JVA and not merely an option to be exercised in the future if and when
the reclamation is actually realized. The submerged lands, being inalienable and outside the commerce of
man, could not be the subject of the commercial transactions specified in the Amended JVA.
Second, in the Ponce Cases the Cebu City ordinance granted Essel, Inc. an "irrevocable option" to
purchase from Cebu City not more than 70% of the reclaimed lands. The ownership of the reclaimed
lands remained with Cebu City until Essel, Inc. exercised its option to purchase. With the subsequent
enactment of the Government Auditing Code (Presidential Decree No. 1445) on 11 June 1978, any sale of
government land must be made only through public bidding. Thus, such an "irrevocable option" to
purchase government land would now be void being contrary to the requirement of public bidding

expressly required in Section 7917 of PD No. 1445. This requirement of public bidding is reiterated in
Section 37918 of the 1991 Local Government Code.19 Obviously, the ingenious reclamation scheme
adopted in the Cebu City ordinance can no longer be followed in view of the requirement of public bidding
in the sale of government lands. In the instant case, the Amended JVA is a negotiated contract which
clearly contravenes Section 79 of PD No. 1445.
Third, Republic Act No. 1899 authorized municipalities and chartered cities to reclaim foreshore lands.
The two Resolutions in the Ponce Cases upheld the Cebu City ordinance only with respect to foreshore
areas, and nullified the same with respect to submerged areas. Thus, the 27 June 1965 Resolution made
the injunction of the trial court against the City of Cebu "permanent insofar x x x as the area outside or
beyond the foreshore land proper is concerned."
Fourth, the Ponce Cases involve the authority of the City of Cebu to reclaim foreshore areas pursuant to a
general law, RA No. 1899. The City of Cebu is a public corporation and is qualified, under the 1935, 1973,
and 1987 Constitutions, to hold alienable or even inalienable lands of the public domain. There is no
dispute that a public corporation is not covered by the constitutional ban on acquisition of alienable public
lands. Both the 9 July 2002 Decision and the 6 May 2003 Resolution of this Court in the instant case
expressly recognize this.
Cebu City is an end user government agency, just like the Bases Conversion and Development Authority
or the Department of Foreign Affairs.21 Thus, Congress may by law transfer public lands to the City of
Cebu to be used for municipal purposes, which may be public or patrimonial. Lands thus acquired by the
City of Cebu for a public purpose may not be sold to private parties. However, lands so acquired by the
City of Cebu for a patrimonial purpose may be sold to private parties, including private corporations.
However, in the instant case the PEA is not an end user agency with respect to the reclaimed lands under
the Amended JVA. As we explained in the 6 May 2003 Resolution:
PEA is the central implementing agency tasked to undertake reclamation
projects nationwide. PEA took the place of the Department of Environment and Natural
Resources ("DENR" for brevity) as the government agency charged with leasing or
selling all reclaimed lands of the public domain. In the hands of PEA, which took over
the leasing and selling functions of DENR, reclaimed foreshore (or submerged
lands) lands are public lands in the same manner that these same lands would
have been public lands in the hands of DENR.(Emphasis supplied)
Our 9 July 2002 Decision explained the rationale for treating the PEA in the same manner as the DENR
with respect to reclaimed foreshore or submerged lands in this wise:
To allow vast areas of reclaimed lands of the public domain to be transferred to PEA as
private lands will sanction a gross violation of the constitutional ban on private
corporations from acquiring any kind of alienable land of the public domain. PEA will
simply turn around, as PEA has now done under the Amended JVA, and transfer
several hundreds of hectares of these reclaimed and still to be reclaimed lands to a
single private corporation in only one transaction. This scheme will effectively nullify the
constitutional ban in Section 3, Article XII of the 1987 Constitution which was intended to
diffuse equitably the ownership of alienable lands of the public domain among Filipinos,
now numbering over 80 million strong. (Emphasis supplied)
Finally, the Ponce Cases were decided under the 1935 Constitution which allowed private corporations to
acquire alienable lands of the public domain. However, the 1973 Constitution prohibited private
corporations from acquiring alienable lands of the public domain, and the 1987 Constitution reiterated this
prohibition. Obviously, the Ponce Cases cannot serve as authority for a private corporation to acquire

alienable public lands, much less submerged lands, since under the present Constitution a private
corporation like Amari is barred from acquiring alienable lands of the public domain.
Clearly, the facts in the Ponce Cases are different from the facts in the instant case. Moreover, the
governing constitutional and statutory provisions have changed since the Ponce Cases were disposed of
in 1965 and 1966 through minute Resolutions of a divided (6 to 5) Court.
PHILIPPINE FISHERIES DEVELOPMENT AUTHORITY, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, et al, respondent.
The controversy arose when respondent Municipality of Navotas assessed the real estate taxes allegedly
due from petitioner Philippine Fisheries Development Authority (PFDA) for the period 1981-1990 on
properties under its jurisdiction, management and operation located inside the Navotas Fishing Port
Complex (NFPC).
The assessed taxes had remained unpaid despite the demands made by the municipality which prompted
it, through Municipal Treasurer Florante M. Barredo, to give notice to petitioner on October 29, 1990 that
the NFPC will be sold at public auction on November 30, 1990 in order that the municipality will be able to
collect on petitioners delinquent realty taxes which, as of June 30, 1990, amounted to P23,128,304.51,
inclusive of penalties.
Petitioner sought the deferment of the auction sale claiming that the NFPC is owned by the Republic of
the Philippines, and pursuant to Presidential Decree (P.D.) No. 977, it (PFDA) is not a taxable entity.
Notwithstanding the DOFs instruction, respondent Municipality proceeded to publish the notice of sale of
NFPC in the November 2, 1990 issue of Balita, a local newspaper.
On November 19, 1990, petitioner instituted Civil Case No. 1524 in the Regional Trial Court (RTC) of
Malabon, Metro Manila against respondent Municipality, its Municipal Treasurer and the Chairman of the
Public Auction Sale Committee. Petitioner asked the RTC to enjoin the auction of the NFPC on the
ground that the properties comprising the NFPC are owned by the Republic of the Philippines and are,
thus, exempt from taxation. According to petitioner, only a small portion of NFPC which had been leased
to private parties may be subjected to real property tax which should be paid by the latter.
The issue is whether petitioner is liable to pay real property tax.
Local government units, pursuant to the fiscal autonomy granted by the provisions of Republic Act No.
7160 or the 1991 Local Government Code, can impose realty taxes on juridical persons 19 subject to the
limitations enumerated in Section 133 of the Code:
SEC. 133. Common Limitations on the Taxing Power of Local Government Units.
Unless otherwise provided herein, the exercise of the taxing powers of provinces, cities,
municipalities, and barangays shall not extend to the levy of the following:
...
(o) taxes, fees, charges of any kind on the national government, its agencies and
instrumentalities, and local government units.
Nonetheless, the above exemption does not apply when the beneficial use of the government property
has been granted to a taxable person. Section 234 (a) of the Code states that real property owned by the
Republic of the Philippines or any of its political subdivisions is exempted from payment of the real

property tax "except when the beneficial use thereof has been granted, for consideration or otherwise, to
a taxable person."
Thus, as a rule, petitioner PFDA, being an instrumentality 20 of the national government, is exempt from
real property tax but the exemption does not extend to the portions of the NFPC that were leased to
taxable or private persons and entities for their beneficial use.
This is in consonance with the ruling in Philippine Fisheries Development Authority v. Court of
Appeals21 where this Court held that:
On the basis of the parameters set in the MIAA [Manila International Airport Authority v.
Court of Appeals]22case, the Authority should be classified as an instrumentality of the
national government. As such, it is generally exempt from payment of real property tax,
except those portions which have been leased to private entities.
In the MIAA case, petitioner Philippine Fisheries Development Authority was cited as
among the instrumentalities of the national government 23
Indeed, the Authority is not a GOCC24 but an instrumentality of the government. The
Authority has a capital stock but it is not divided into shares of stocks. 25 Also, it has no
stockholders or voting shares. Hence, it is not a stock corporation. Neither it is a nonstock corporation because it has no members.
The port built by the State in the Iloilo fishing complex is a property of public dominion
and cannot therefore be sold at public auction. Article 420 of the Civil Code provides:
ARTICLE 420. The following things are property of public dominion:
(1) Those intended for public use, such as roads, canals, rivers,
torrents, ports and bridgesconstructed by the State, banks, shores,
roadsteads, and others of similar character;
(2) Those which belong to the State, without being for public use, and
are intended for some public service or for the development of national wealth.
The Iloilo [F]ishing [P]ort [Complex/IFPC] which was constructed by the State for public
use and/or public service falls within the term "port" in the aforecited provision. Being a
property of public dominion the same cannot be subject to execution or foreclosure
sale.26 Whether there are improvements in the fishing port complex that should not be
construed to be embraced within the term port involves evidentiary matters that cannot
be addressed in the present case. As for now, considering that the Authority is a national
government instrumentality, any doubt on whether the entire IFPC may be levied upon to
satisfy the tax delinquency should be resolved against the City of Iloilo.
Similarly, for the same reason, the NFPC cannot be sold at public auction in satisfaction of the tax
delinquency assessments made by the Municipality of Navotas on the entire complex.
Additionally, the land on which the NFPC property sits is a reclaimed land, which belongs to the State.
In Chavez v. Public Estates Authority,27 the Court declared that reclaimed lands are lands of the public
domain and cannot, without Congressional fiat, be subject of a sale, public or private. 28

THE MUNICIPALITY OF HAGONOY, BULACAN, et al, Petitioners,

vs.
HON. SIMEON P. DUMDUM, JR., et al, Respondents.
The case stems from a Complaint5 filed by herein private respondent Emily Rose Go Ko Lim Chao
against herein petitioners, the Municipality of Hagonoy, Bulacan and its chief executive, Felix V. Ople
(Ople) for collection of a sum of money and damages. It was alleged that sometime in the middle of the
year 2000, respondent, doing business as KD Surplus and as such engaged in buying and selling surplus
trucks, heavy equipment, machinery, spare parts and related supplies, was contacted by petitioner Ople.
Respondent had entered into an agreement with petitioner municipality through Ople for the delivery of
motor vehicles, which supposedly were needed to carry out certain developmental undertakings in the
municipality. Respondent claimed that because of Oples earnest representation that funds had already
been allocated for the project, she agreed to deliver from her principal place of business in Cebu City
twenty-one motor vehicles whose value totaled P5,820,000.00. To prove this, she attached to the
complaint copies of the bills of lading showing that the items were consigned, delivered to and received
by petitioner municipality on different dates.6 However, despite having made several deliveries, Ople
allegedly did not heed respondents claim for payment. As of the filing of the complaint, the total obligation
of petitioner had already totaled P10,026,060.13 exclusive of penalties and damages. Thus, respondent
prayed for full payment of the said amount, with interest at not less than 2% per month, plus P500,000.00
as damages for business losses, P500,000.00 as exemplary damages, attorneys fees of P100,000.00
and the costs of the suit.
It is interesting to note at this point that in their bid to have the case dismissed, petitioners theorize that
there could not have been a contract by which the municipality agreed to be bound, because it was not
shown that there had been compliance with the required bidding or that the municipal council had
approved the contract. The argument is flawed. By invoking unenforceability under the Statute of Frauds,
petitioners are in effect acknowledging the existence of a contract between them and private respondent
only, the said contract cannot be enforced by action for being non-compliant with the legal requisite
that it be reduced into writing. Suffice it to say that while this assertion might be a viable defense against
respondents claim, it is principally a matter of evidence that may be properly ventilated at the trial of the
case on the merits.
Verily, no grave abuse of discretion has been committed by the trial court in denying petitioners motion to
dismiss this case. The Court of Appeals is thus correct in affirming the same.
We now address the question of whether there is a valid reason to deny petitioners motion to discharge
the writ of preliminary attachment.
The general rule spelled out in Section 3, Article XVI of the Constitution is that the state and its political
subdivisions may not be sued without their consent. Otherwise put, they are open to suit but only when
they consent to it. Consent is implied when the government enters into a business contract, as it then
descends to the level of the other contracting party; or it may be embodied in a general or special
law34 such as that found in Book I, Title I, Chapter 2, Section 22 of the Local Government Code of 1991,
which vests local government units with certain corporate powers one of them is the power to sue and
be sued.
Be that as it may, a difference lies between suability and liability. As held in City of Caloocan v.
Allarde,35 where the suability of the state is conceded and by which liability is ascertained judicially, the
state is at liberty to determine for itself whether to satisfy the judgment or not. Execution may not issue
upon such judgment, because statutes waiving non-suability do not authorize the seizure of property to
satisfy judgments recovered from the action. These statutes only convey an implication that the
legislature will recognize such judgment as final and make provisions for its full satisfaction. Thus, where
consent to be sued is given by general or special law, the implication thereof is limited only to the
resultant verdict on the action before execution of the judgment. 36

The universal rule that where the State gives its consent to be sued by private parties either by general or
special law, it may limit claimants action "only up to the completion of proceedings anterior to the stage of
execution" and that the power of the Courts ends when the judgment is rendered, since government
funds and properties may not be seized under writs of execution or garnishment to satisfy such
judgments, is based on obvious considerations of public policy. Disbursements of public funds must be
covered by the corresponding appropriations as required by law. The functions and public services
rendered by the State cannot be allowed to be paralyzed or disrupted by the diversion of public funds
from their legitimate and specific objects. x x x39
With this in mind, the Court holds that the writ of preliminary attachment must be dissolved and, indeed, it
must not have been issued in the very first place. While there is merit in private respondents position that
she, by affidavit, was able to substantiate the allegation of fraud in the same way that the fraud
attributable to petitioners was sufficiently alleged in the complaint and, hence, the issuance of the writ
would have been justified. Still, the writ of attachment in this case would only prove to be useless and
unnecessary under the premises, since the property of the municipality may not, in the event that
respondents claim is validated, be subjected to writs of execution and garnishment unless, of course,
there has been a corresponding appropriation provided by law.401avvphi1
CITY OF QUEZON, petitioner,
vs.
LEXBER INCORPORATED, respondent.
On August 27, 1990, a Tri-Partite Memorandum of Agreement 3 was drawn between petitioner City of
Quezon, represented by its then Mayor Brigido R. Simon, Jr., respondent Lexber, Inc. and the then
Municipality of Antipolo, whereby a 26,010 square meter parcel of land located in Antipolo 4 was to be
used as a garbage dumping site by petitioner and other Metro Manila cities or municipalities authorized by
the latter, for a 5-year period commencing in January 1991 to December 1995. Part of the agreement was
that the landowner, represented by respondent Lexber, shall be hired as the exclusive supplier of
manpower, heavy equipment and engineering services for the dumpsite and shall also have the right of
first refusal for contracting such services.
This led to the drawing of the first negotiated contract 5 between petitioner, represented by Mayor Simon,
and respondent Lexber on September 10, 1990, whereby the latter was engaged to construct the
necessary infrastructure at the dumpsite, designated as the Quezon City Sanitary Landfill, for the contract
price of P4,381,069.00. Construction of said infrastructure was completed by respondent Lexber on
November 25, 1991, and the contract price agreed upon was accordingly paid to it by petitioner.
Meanwhile, on November 8, 1990, a second negotiated contract 6 was entered into by respondent Lexber
with petitioner, again represented by Mayor Simon, whereby it was agreed that respondent Lexber shall
provide maintenance services in the form of manpower, equipment and engineering operations for the
dumpsite for the contract price of P1,536,796.00 monthly. It was further agreed that petitioner shall pay
respondent Lexber a reduced fee of fifty percent (50%) of the monthly contract price, or P768,493.00, in
the event petitioner fails to dump the agreed volume of 54,000 cubic meters of garbage for any given
month. On December 11, 1991, respondent was notified by petitioner, through the City Engineer, Alfredo
Macapugay, Project Manager, Rene Lazaro and Mayor Simon to commence maintenance and dumping
operations at the site starting on December 15, 1991. 7
Respondent Lexber alleged that petitioner immediately commenced dumping garbage on the landfill site
continuously from December 1991 until May 1992. Thereafter, petitioner ceased to dump garbage on the
said site for reasons not made known to respondent Lexber. Consequently, even while the dumpsite
remained unused, respondent Lexber claimed it was entitled to payment for its services as stipulated in
the second negotiated contract.

On December 12, 1992, respondent's counsel sent a demand letter to petitioner demanding the payment
of at least 50% of its service fee under the said contract, in the total amount of P9,989,174.00. In view of
the idle state of the dumpsite for more than a year, respondent also sought a clarification from petitioner
regarding its intention on the dumpsite project, considering the waste of equipment and manpower in the
meantime, as well as its loss of opportunity for the property.
Petitioner, this time acting through Mayor Ismael A. Mathay, Jr. who succeeded Mayor Simon in the
interim, denied any liability under the contract on the ground that the same was invalid and
unenforceable. According to Mayor Mathay, the subject contract was signed only by Mayor Simon and
had neither the approval nor ratification of the City Council, and it lacked the required budget
appropriation.1wphi1.nt
Thus, a complaint for Breach of Contract, Specific Performance or Rescission of Contract and Damages
was filed by respondent Lexber against petitioner on February 21, 1994 before the Regional Trial Court of
Quezon City.
The issue of whether or not the subject negotiated contract is null and void ab initio will be discussed first.
Petitioner insists that the subject contract failed to comply with the mandatory requirements of
Presidential Decree No. 1445, otherwise known as the Auditing Code of the Philippines.
Section 85 thereof provides:
Section 85. Appropriation before entering into contract. - (1) No contract involving the
expenditure of public funds shall be entered into unless there is an appropriation therefor,
the unexpected balance of which, free of other obligations, is sufficient to cover the
proposed expenditure; (2) Notwithstanding this provision, contracts for the procurement
of supplies and materials to be carried in stock may be entered into under regulations of
the Commission provided that when issued, the supplies and materials shall be charged
to the proper appropriation account. (Underscoring ours)
Section 86 of PD 1445 also provides as follows:
Section 86. Certificate showing appropriation to meet contract. - Except in a case of a
contract for personal service, for supplies for current consumption or to be carried in
stock not exceeding the estimated consumption for three months, or banking transactions
of government-owned or controlled banks, no contract involving the expenditure of public
funds by any government agency shall be entered into or authorized unless the proper
accounting official or the agency concerned shall have certified to the officer entering into
obligation that funds have been duly appropriated for the purpose and that the amount
necessary to cover the proposed contract for the current fiscal year is available for
expenditure on account thereof, subject to verification by the auditor concerned. The
certification signed by the proper accounting official and the auditor who verified it, shall
be attached to and become an integral part of the proposed contract, and the sum so
certified shall not thereafter be available for expenditure for any other purpose until the
obligation of the government agency concerned under the contract is fully extinguished,
(Underscoring ours)
Petitioner stresses that failure to comply with the requirements underlined in Sections 85 and 86 of PD
1445 rendered the subject contract void, invoking Section 87 of PD 1445 which provides:
Section 87. Void contract and liability of officer. - Any contract entered into contrary to the
requirements of the two immediately preceding sections shall be void, and the officer or
officers entering into the contract shall be liable to the government or other contracting

party for any consequent damage to the same extent as if the transaction had been
wholly between private parties.
If we are to limit our disquisition to the cited provisions of Presidential Decree No. 1445, or the Auditing
Code of the Philippines, in conjunction with Section 177 (b) of Batas Pambansa Blg. 337, or the Local
Government Code of 1983, which empowered the Sangguniang Panlungsod to "appropriate funds for
expenses of the city government, and fix the salaries of its officers and employees according to law,"
there would be no debate that prior appropriation by the city council and a certification that funds are
available therefor is indeed mandatorily required.
There is no denying that Sections 85 and 86 of P.D. 1445 (Auditing Code of the Philippines) provide that
contracts involving expenditure of public funds:
1) can be entered into only when there is an appropriation therefor; and
2) must be certified by the proper accounting official/agency that funds have been duly
appropriated for the purpose, which certification shall be attached to and become an
integral part of the proposed contact.
However, the very same Presidential Decree No. 1445, which is the cornerstone of petitioner's
arguments, does not provide that the absence of an appropriation law ipso facto makes a contract
entered into by a local government unit null and void. Section 84 of the statute specifically provides:
Revenue funds shall not be paid out of any public treasury or depository except in
pursuance of an appropriation law or other specific statutory authority. (Underscoring
ours)
Consequently, public funds may be disbursed not only pursuant to an appropriation law, but also in
pursuance of other specific statutory authority, i.e., Section 84 of PD 1445. Thus, when a contract is
entered into by a city mayor pursuant to specific statutory authority, the law, i.e., PD 1445 allows the
disbursement of funds from any public treasury or depository therefor. It can thus be plainly seen that the
law invoked by petitioner Quezon City itself provides that an appropriation law is not the only authority
upon which public funds shall be disbursed.
Furthermore, then Mayor Brigido Simon, Jr. did not enter into the subject contract without legal authority.
The Local Government Code of 1983, or B.P. Blg. 337, which was then in force, specifically and
exclusively empowered the city mayor to "represent the city in its business transactions, and sign all
warrants drawn on the city treasury and all bonds, contracts and obligations of the city." 10 Such power
granted to the city mayor by B.P. Blg. 337 was not qualified nor restricted by any prior action or authority
of the city council. We note that while the subsequent Local Government Code of 1991, 11 which took
effect after the execution of the subject contracts, provides that the mayor's representation must be "upon
authority of the sangguniang panlungsod or pursuant to law or ordinance," 12 there was no such
qualification under the old code.
We must differentiate the provisions of the old Local Government Code of 1983, B.P. Blg. 337, which was
then in force, from that of the Local Government Code of 1991, R.A. No.7160, which now requires that the
mayor's representation of the city in its business transactions must be "upon authority of the sangguniang
panlungsod or pursuant to law or ordinance" (Section 455 [vi]). No such prior authority was required
under B.P. Blg. 337. This restriction, therefore, cannot be imposed on the city mayor then since the two
contracts were entered into before R.A. No.7160 was even enacted.
Under B.P. Blg. 337, while the city mayor has no power to appropriate funds to support the contracts,
neither does said law prohibit him from entering into contracts unless and until funds are appropriated
therefor. In fact, it is his bounden duty to so represent the city in all its business transactions. On the other

hand, the city council must provide for the "depositing, leaving or throwing of garbage" 13 and to
appropriate funds for such expenses.14 {Section 177 [b]). It cannot refuse to so provide and appropriate
public funds for such services which are very vital to the maintenance of cleanliness of the city and the
good health of its inhabitants.
By entering into the two contracts, Mayor Simon did not usurp the city council's power to provide for the
proper disposal of garbage and to appropriate funds therefor. The execution of contracts to address such
a need is his statutory duty, just as it is the city council's duty to provide for said services. There is no
provision in B.P. Blg. 337, however, that prohibits the city mayor from entering into contracts for the public
welfare, unless and until there is prior authority from the city council. This requirement was imposed much
later by R.A. No. 7160, long after the contracts had already been executed and implemented.
Even the very Charter of Quezon City,15 more particularly Section 9(f), Section 12(a) and Section 12(m)
thereof, simply provide that the mayor shall exercise general powers and duties, such as signing "all
warrants drawn on the city treasurer and all bonds, contracts, and obligations of the city," 16 even as it
grants the City Council the power, by ordinance or resolution, "to make all appropriations for the expenses
of the government of the city,"17 as well as "to prohibit the throwing or depositing of offal, garbage, refuse,
or other offensive matter in the same, and to provide for its collection and disposition x x x." 18
While the powers and duties of the Mayor and the City Council are clearly delineated, there is nothing in
the cited provisions, nor even in the statute itself, that requires "prior authorization by the city council by
proper enactment of an ordinance" before the City Mayor can enter into contracts.
Contrary to petitioner's arguments, the facts in the Osmea case are not parallel to the facts in the instant
case. While in the former the construction of an abattoir entailed the payment in full of a fixed amount, the
case at bar involved a contract for services still to be rendered which was payable on a monthly basis,
just as in the Imus case. In the latter case, the Supreme Court did not declare the contract null and
void ab initio for the reason that appropriation for the project can be made subsequent to the execution of
the contract. Consequently, the ruling in the Imus case is germane to the instant case. Furthermore, the
trial court noted that while herein petitioner would attack the subject contract for being fatally defective,
the Commission on Audit did not declare the said contract as null and void, unlike in the Osmea case
where the questioned contract was declared invalid by the COA. Hence, the ruling in the Osmea case
finds no application in the instant controversy.
JULIAN SEGUNDO MANANTAN, et al, petitioners-appellants,
vs.
THE MUNICIPALITY OF LUNA, LA UNION, et al, respondents-appellees.
On December 15, 1945, the municipal council of Luna, Province of La Union, passed its Resolution No.
32, series of 1945, the purpose of offering at public auction on January 15, 1946, a lease of the privilege
to catch "bagus" fry within certain section of the municipal waters.
Acting on the authority granted in said resolution the municipal treasurer issued the necessary notices for
the auction wherein it was stated, among other things that the fishing privilege in question would be
leased to the highest bidder ranging from P1,000 and up together with a deposit of 10 per cent of the
amount so offered for the period of one year from January 1, 1946, to December 31, 1946." with the
further statement that "Bids for more than one year but not more than four years can be offered.
Prospective bidders may see the Municipal Secretary about the conditions of the lease for more than one
year.
The auction was held on the date specified, and of the five bids submitted that of Julian Segundo
Manantan and his associates was declared to the best and highest. In official confirmation of this
declaration the municipal council passed Resolution No. 37, series of 1946, granting to Julian Segundo
Manantan and his associates the fishing privilege in question and authorizing the municipal mayor to

execute the corresponding contract of lease. In due time the contract was signed by the parties, and
conformably to the bid, the lease was to be four years (from 1946 to 1949, inclusive)at the agreed price of
P1,000 fro the first year payable immediately, and P2,400 for the succeeding three years, payable in a
lump sum at the beginning of 1947 or in installments at the discretion of the municipal council.
After paying the P1,000 corresponding to the first year of the lease, the lessees began catching "bangus"
fry within the fishery zone in question. But on July 20, 1946, the municipal council, now composed of a
new set councilors headed by a new mayor, passed, Resolution No. 2, series of 1946, requesting the
Provincial Board of La Union to annul Resolution No. 32, series of 1945, and the fishing privilege granted
thereunder to Julian Segundo Manantan and his partners, and the request having been granted, the said
council, on December 22, 1946, approved Resolution No. 23 fishing privilege for the year 1947 at the
minimum auction, Julian Segundo Manantan, later joined by his partners, commenced the present suit in
the Court of First Instance of La Union to have the last-mentioned resolution declared void and the
municipal council enjoined from carrying out the auction. The municipal council, however, went ahead
with the auction and awarded the lease for the fishing privileges in question to Timoteo Santaromana,
whose bid was declared to be the better of the two that were submitted. But the petitioners succeeded in
having a writ of preliminary injunction issued on April 11, 1947, against the municipality, the municipal
mayor, the municipal councilors, and Timoteo Santaromana, enjoining them and their agents from
preventing the petitioners form enjoining their privilege under the lease.
From this decision, petitioners have appealed to this Court, contending that the lower court erred in
holding Resolution No. 37 to be null and void, and in not declaring Resolution No. 23 null and void as
violative of the constitutional provision prohibiting the passage of any law impairing the obligation of
contracts. It is obvious that the case hinges on the validity of Resolution No. 37 granting the fishing
privileges to the petitioners. The learned trial judge rightly held that Resolution No. 32 (the one authorizing
the first auction) was not invalidated by the fact that it was disapproved by the provincial board, since "the
only ground upon which a provincial board may declare any municipal resolution . . . invalid is when such
resolution . . . is beyond the powers conferred upon the council . . . making the same" (Gabriel vs.
Provincial Board of Pampanga, 50 Phil., 686, 692), and there is no question that Resolution No. 32 is
within the powers granted to municipal councils by the Fishery Law (section 67, Act No. 4003 as amended
by Com. Act. No. 471). His Honor, however, was in error in taking the view that Resolution No. 37 and the
lease contract granted under it were null and void on the ground that when the municipal council by said
resolution "accepted the four-year if proposal of petitioners and declared them to be the best and highest
bidders for the 1946-1947-1948-1949 fishing privilege, the municipal council in effect awarded to the
petitioners the four fishing privilege without the intended benefits of public auction, in violation of section
69 of Act No. 4003, the Fishery Law, as amended by Commonwealth Act No. 471." The trial judge thus
proceeds on the assumptions that Resolution No. 32, which authorized the first auction, did not authorize
a lease for more than one year, so that the notice of public auction calling for bids for a longer period was
unauthorized and therefore void.
We don't think this assumption is justified by the terms of the resolution. It is true that the resolution fixes
the minimum price for the lease at P1,000 for one year "beginning January 1, 1946, up to and including
December 31, 1949." But nowhere does it say that the lease was to be for one year only. On the contrary,
it expressly provides that the lease "can be extended for a period of from one to four years," thus
indicating an intention not to limit the duration of the lease to one year. In accord with that intention, the
municipal treasurer, in announcing the public auction, inserted in the notice a provision that "bids for more
than one year but not more than four years can be offered," and the same municipal council which passed
the resolution (No. 32) confirmed that intention by entertaining and accepting in its Resolution No. 37 the
petitioners' bid for four years. It is a rule repeatedly followed by this Court that "the construction place
upon a law at the time by the official in charge of enforcing it should be respected." (In re Allen, 2 Phil.,
630; Government of the Philippine Islands vs. Municipality of Binalonan, 32 Phil., 634; Molina vs. Rafferty,
37 Phil., 545; Madrigal and Paterno vs. Rafferty and Concepcion, 38 Phil., 414.)' (Guanio vs. Fernandez,
55 Phil., 814, 819).

As that part of the notice issued by the municipal treasurer which calls for bids for a longer period than
one year but not more than four years is in accord with the real intent of Resolution No. 32, as that
intention was subsequently confirmed in Resolution No. 37 of the same municipal council, the said notice
can not be deemed to be unauthorized and void, so that it is erro to hold that he grant of the fishing
privilege to the petitioners was null and void for lack of a valid notice of the public auction.
It results that the contract of lease entered into under the authority of Resolution No. 37 between the
petitioners and the municipal government of Luna is a valid and binding contract and as such it is
protected by the Constitution and can not, therefore, be impaired by a subsequent resolution which sets in
it aside and grants the fishing privilege to another party.
JOSE D. SANGALANG and LUTGARDA D. SANGALANG, petitioners,
vs.
INTERMEDIATE APPELLATE COURT and AYALA CORPORATION, respondents.
In brief, G.R. Nos. 74376, 76394, 78182, and 82281 are efforts to enforce the "deed restrictions" in
question against specific residents (private respondents in the petitions) of Jupiter Street and with respect
to G.R. No. 78182, Reposo Street. The private respondents are alleged to have converted their
residences into commercial establishments (a restaurant in G.R. No. 74376, a bakery and coffee shop in
G.R. No. 76394, an advertising firm in G.R. No. 78182; and a construction company, apparently, in G.R.
No. 82281) in violation of the said restrictions. 24
Their mother case, G. R. No. 71169 is, on the other hand, a petition to hold the vendor itself, Ayala
Corporation (formerly Makati Development Corporation), liable for tearing down the perimeter wall along
Jupiter Street that had therefore closed its commercial section from the residences of Bel-Air Village and
ushering in, as a consequence, the full "commercialization" of Jupiter Street, in violation of the very
restrictions it had authored.
Among other things, there is a recognition under both Ordinances Nos. 81 and 8 1-01 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 Extrella St., to Pedestrian Lane by E. De los Santos Ave., on the SW., from
Pedestrian Lane to Reposo St., by Jupiter Street
. . . . 40 Hence, it cannot be said to have been "for the exclusive benefit" of Bel-Air Village residents.
We come to the perimeter wall then standing on the commercial side of Jupiter Street the destruction of
which opened the street to the public. The petitioners contend that the opening of the thoroughfare had
opened, in turn, the floodgates to the commercialization of Bel-Air Village. The wall, so they allege, was
designed precisely to protect the peace and privacy of Bel-Air Village residents from the din and uproar of
mercantile pursuits, and that the Ayala Corporation had committed itself to maintain it. It was the opinion
of the Court of Appeals, as we said, that Ayala's liability therefor, if one existed, had been overtaken by
the passage of Ordinances Nos. 81 and 82-01, opening Jupiter Street to commerce.
It is our ruling, we reiterate, that Jupiter Street lies as a mere boundary, a fact acknowledged by the
authorities of Makati and the National Government and, as a scrutiny of the records themselves reveals,
by the petitioners themselves, as the articles of incorporation of Bel-Air Village Association itself would
confirm. As a consequence, Jupiter Street was intended for the use by both -the commercial and
residential blocks. It was not originally constructed, therefore, for the exclusive use of either block, least of

all the residents of Bel-Air Village, but, we repeat, in favor of both, as distinguished from the general
public.
When the wall was erected in 1966 and rebuilt twice, in 1970 and 1972, it was not for the purpose of
physically separating the two blocks. According to Ayala Corporation, it was put up to enable the Bel-Air
Village Association "better control of the security in the area, 41 and as the Ayala Corporation's "show of
goodwill " 42 a view we find acceptable in the premises. For it cannot be denied that at that time, the
commercial area was vacant, "open for [sic] animals and people to have access to Bel-Air Village." 43
There was hence a necessity for a wall.
In any case, we find the petitioners' theory, that maintaining the wall was a matter of a contractual
obligation on the part of Ayala, to be pure conjecture. The records do not establish the existence of such a
purported commitment. For one, the subdivision plans submitted did not mention anything about it. For
another, there is nothing in the "deed restrictions" that would point to any covenant regarding the
construction of a wall. There is no representation or promise whatsoever therein to that effect.
With the construction of the commercial buildings in 1974, the reason for which the wall was built- to
secure Bel-Air Village from interlopers had naturally ceased to exist. The buildings themselves had
provided formidable curtains of security for the residents. It should be noted that the commercial lot
buyers themselves were forced to demolish parts of the wall to gain access to Jupiter Street, which they
had after all equal right to use.
In fine, we cannot hold the Ayala Corporation liable for damages for a commitment it did not make, much
less for alleged resort to machinations in evading it. The records, on the contrary, will show that the BelAir Village Association had been informed, at the very outset, about the impending use of Jupiter Street
by commercial lot buyers.
The petitioners cannot simply assume that the wall was there for the purpose with which they now give it,
by the bare coincidence that it had divided the residential block from the commercial section of Bel-Air.
The burden of proof rests with them to show that it had indeed been built precisely for that objective, a
proof that must satisfy the requirements of our rules of evidence. It cannot be made to stand on the
strength of plain inferences.
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:
xxxxxxxxx
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) 55
xxxxxxxxx
The donation, on the contrary, gave the general public equal right to it.

What Ayala submits as the real cause was the opening of Jupiter Street to vehicular traffic in 1977., 58
But this was upon orders of the Mayor, and for which the homeowners' association had precisely filed suit
(Civil Case No. 34998)59 to contest the act of the Mayor.
Our decision also resolves, quite anticlimactically, these companion cases. But we do so for various other
reasons. In the Sangalang case, we absolve the Ayala Corporation primarily owing to our finding that it is
not liable for the opening of Jupiter Street to the general public. Insofar as these petitions are concerned,
we likewise exculpate the private respondents, not only because of the fact that Jupiter Street is not
covered by the restrictive easements based on the "deed restrictions" but chiefly because the National
Government itself, through the Metro Manila Commission (MMC), had reclassified Jupiter Street into high
density commercial (C-3) zone, 64 pursuant to its Ordinance No. 81-01. Hence, the petitioners have no
cause of action on the strength alone of the said "deed restrictions.
It is not that we are saying that restrictive easements, especially the easements herein in question, are
invalid or ineffective. As far as the Bel-Air subdivision itself is concerned, certainly, they are valid and
enforceable. But they are, like all contracts, subject to the overriding demands, needs, and interests of the
greater number as the State may determine in the legitimate exercise of police power. Our jurisdiction
guarantees sanctity of contract and is said to be the "law between the contracting parties, 65 but while it
is so, it cannot contravene 'law, morals, good customs, public order, or public policy. 66 Above all, it
cannot be raised as a deterrent to police power, designed precisely to promote health, safety, peace, and
enhance the common good, at the expense of contractual rights, whenever necessary.
Undoubtedly, the MMC Ordinance represents a legitimate exercise of police power. The petitioners have
not shown why we should hold otherwise other than for the supposed "non-impairment" guaranty of the
Constitution, which, as we have declared, is secondary to the more compelling interests of general
welfare. The Ordinance has not been shown to be capricious or arbitrary or unreasonable to warrant the
reversal of the judgments so appealed. In that connection, we find no reversible error to have been
committed by the Court of Appeals.
CITY OF MANILA, and EVANGELINE SUVA, petitioners,
vs.
HON. INTERMEDIATE APPELLATE COURT, et al, respondents.
Brought on February 22, 1979 by the widow and children of the late Vivencio Sto. Domingo, Sr. was this
action for damages against the City of Manila; Evangeline Suva of the City Health Office; Sergio Mallari,
officer-in-charge of the North Cemetery; and Joseph Helmuth, the latter's predecessor as officer-in-charge
of the said burial grounds owned and operated by the City Government of Manila.
Vivencio Sto. Domingo, Sr. deceased husband of plaintiff Irene Sto. Domingo and father of the litigating
minors, died on June 4,1971 and buried on June 6,1971 in Lot No. 159, Block No. 194 of the North
Cemetery which lot was leased by the city to Irene Sto. Domingo for the period from June 6, 1971 to June
6, 2021 per Official Receipt No. 61307 dated June 6, 1971 (see Exh. A) with an expiry date of June 6,
2021 (see Exh. A-1). Full payment of the rental therefor of P50.00 is evidenced by the said receipt which
appears to be regular on its face. Apart from the aforementioned receipt, no other document was
executed to embody such lease over the burial lot in question. In fact, the burial record for Block No. 194
of Manila North Cemetery (see Exh. 2) in which subject Lot No. 159 is situated does not reflect the term of
duration of the lease thereover in favor of the Sto. Domingos.
Believing in good faith that, in accordance with Administrative Order No. 5, Series of 1975, dated March 6,
1975, of the City Mayor of Manila (See Exh. 1) prescribing uniform procedure and guidelines in the
processing of documents pertaining to and for the use and disposition of burial lots and plots within the
North Cemetery, etc., subject Lot No. 159 of Block 194 in which the mortal remains of the late Vivencio
Sto. Domingo were laid to rest, was leased to the bereaved family for five (5) years only, subject lot was
certified on January 25, 1978 as ready for exhumation.

On the basis of such certification, the authorities of the North Cemetery then headed by defendant Joseph
Helmuth authorized the exhumation and removal from subject burial lot the remains of the late Vivencio
Sto. Domingo, Sr., placed the bones and skull in a bag or sack and kept the same in the depository or
bodega of the cemetery y Subsequently, the same lot in question was rented out to another lessee so that
when the plaintiffs herein went to said lot on All Souls Day in their shock, consternation and dismay, that
the resting place of their dear departed did not anymore bear the stone marker which they lovingly placed
on the tomb. Indignant and disgusted over such a sorrowful finding, Irene Sto. Domingo lost no time in
inquiring from the officer-in-charge of the North Cemetery, defendant Sergio Mallari, and was told that the
remains of her late husband had been taken from the burial lot in question which was given to another
lessee.
Irene Sto. Domingo was also informed that she can look for the bones of her deceased husband in the
warehouse of the cemetery where the exhumed remains from the different burial lots of the North
Cemetery are being kept until they are retrieved by interested parties. But to the bereaved widow, what
she was advised to do was simply unacceptable. According to her, it was just impossible to locate the
remains of her late husband in a depository containing thousands upon thousands of sacks of human
bones. She did not want to run the risk of claiming for the wrong set of bones. She was even offered
another lot but was never appeased. She was too aggrieved that she came to court for relief even before
she could formally present her claims and demands to the city government and to the other defendants
named in the present complaint. (Decision, Court of Appeals, pp. 2-3; Rollo, pp. 34-55)
The pivotal issue of this case is whether or not the operations and functions of a public cemetery are a
governmental, or a corporate or proprietary function of the City of Manila. The resolution of this issue is
essential to the determination of the liability for damages of the petitioner city.
Under Philippine laws, the City of Manila is a political body corporate and as such endowed with the
faculties of municipal corporations to be exercised by and through its city government in conformity with
law, and in its proper corporate name. It may sue and be sued, and contract and be contracted with. Its
powers are twofold in character-public, governmental or political on the one hand, and corporate, private
and proprietary on the other. Governmental powers are those exercised in administering the powers of
the state and promoting the public welfare and they include the legislative, judicial, public and political.
Municipal powers on the one hand are exercised for the special benefit and advantage of the community
and include those which are ministerial, private and corporate. In McQuillin on Municipal Corporation, the
rule is stated thus: "A municipal corporation proper has ... a public character as regards the state at large
insofar as it is its agent in government, and private (so called) insofar as it is to promote local necessities
and conveniences for its own community (Torio v. Fontanilla, 85 SCRA 599 [1978]). In connection with the
powers of a municipal corporation, it may acquire property in its public or governmental capacity, and
private or proprietary capacity. The New Civil Code divides such properties into property for public use
and patrimonial properties (Article 423), and further enumerates the properties for public use as provincial
roads, city streets, municipal streets, the squares, fountains, public waters, promenades, and public works
for public service paid for by said provisions, cities or municipalities, all other property is patrimonial
without prejudice to the provisions of special laws (Article 424; Province of Zamboanga del Norte v. City of
Zamboanga, et al., 22 SCRA 1334 [1968]).
Thus in Torio v. Fontanilla, supra, the Court declared that with respect to proprietary functions the settled
rule is that a municipal corporation can be held liable to third persons ex contractu (Municipality of
Moncada v. Cajuigan, et al., 21 Phil. 184 (1912) or ex delicto (Mendoza v. de Leon, 33 Phil. 508 (1916).
The Court further stressed:
Municipal corporations are subject to be sued upon contracts and in tort....
xxx xxx xxx

The rule of law is a general one, that the superior or employer must answer civilly
for the negligence or want of skill of its agent or servant in the course or line of
his employment, by which another who is free from contributory fault, is injured.
Municipal corporations under the conditions herein stated, fall within tile
operation of this rule of law, and are liable accordingly, to civil actions for
damages when the requisite elements of liability co-exist. ... (Emphasis supplied)
The Court added:
... while the following are corporate or proprietary in character, viz: municipal
waterworks, slaughter houses, markets, stables, bathing establishments,
wharves, ferries and fisheries. Maintenance of parks, golf courses, cemeteries
and airports among others, are also recognized as municipal or city activities of a
proprietary character. (Dept. of Treasury v. City of Evansvulle, Sup. Ct. of
Indiana, 60 N.E. 2nd 952, 954 cited in Torio v. Fontanilla, supra) (Emphasis
supplied)
Under the foregoing considerations and in the absence of a special law, the North Cemetery is a
patrimonial property of the City of Manila which was created by resolution of the Municipal Board of
August 27, 1903 and January 7, 1904 (Petition, Rollo pp. 20-21 Compilation of the Ordinances of the City
of Manila). The administration and government of the cemetery are under the City Health Officer (Ibid.,
Sec. 3189), the order and police of the cemetery (Ibid., See. 319), the opening of graves, niches, or
tombs, the exhuming of remains, and the purification of the same (Ibid., Sec. 327) are under the charge
and responsibility of the superintendent of the cemetery. The City of Manila furthermore prescribes the
procedure and guidelines for the use and dispositions of burial lots and plots within the North Cemetery
through Administrative Order No. 5, s. 1975 (Rollo, p. 44). With the acts of dominion, there is, therefore no
doubt that the North Cemetery is within the class of property which the City of Manila owns in its
proprietary or private character. Furthermore, there is no dispute that the burial lot was leased in favor of
the private respondents. Hence, obligations arising from contracts have the force of law between the
contracting parties. Thus a lease contract executed by the lessor and lessee remains as the law between
them. (Henson v. Intermediate Appellate Court, 148 SCRA 11 [1 987]). Therefore, a breach of contractual
provision entitles the other party to damages even if no penalty for such breach is prescribed in the
contract. (Boysaw v. Interphil Promotions, Inc., 148 SCRA 635 [1987]).
Noteworthy are the findings of the Court of Appeals as to the harrowing experience of private respondents
and their wounded feelings upon discovery that the remains of their loved one were exhumed without
their knowledge and consent, as said Court declared:
It has been fully established that the appellants, in spite or perhaps because, of
their lowly station in life have found great consolation in their bereavement from
the loss of their family head, by visiting his grave on special or even ordinary
occasions, but particularly on All Saints Day, in keeping with the deep, beautiful
and Catholic Filipino tradition of revering the memory of their dead. It would have
been but fair and equitable that they were notified of the intention of the city
government to transfer the skeletal remains of the late Vivencio Sto. Domingo to
give them an opportunity to demand the faithful fulfillment of their contract, or at
least to prepare and make provisions for said transfer in order that they would not
lose track of the remains of their beloved dead, as what has actually happened
on this case. We understand fully what the family of the deceased must have felt
when on All Saints Day of 1978, they found a new marker on the grave they were
to visit, only to be told to locate their beloved dead among thousands of skeletal
remains which to them was desecration and an impossible task. Even the lower
court recognized this when it stated in its decision thus:

All things considered, even as the Court commiserates with

plaintiffs for the unfortunate happening complained of and
untimely desecration of the resting place and remains of their
deceased dearly beloved, it finds the reliefs prayed for by them
lacking in legal and factual basis. Under the aforementioned
facts and circumstances, the most that plaintiffs ran ask for is the
replacement of subject lot with another lot of equal size and
similar location in the North Cemetery which substitute lot
plaintiffs can make use of without paying any rental to the city
government for a period of forty-three (43) years, four (4) months
and eleven (11) days corresponding to the unexpired portion of
the term of the lease sued upon as of January 25, 1978 when
the remains of the late Vivencio Sto. Domingo, Sr. were
prematurely removed from the disputed lot; and to require the
defendants to look in earnest for the bones and skull of the late
Vivencio Sto. Domingo Sr. and to bury the same in the substitute
lot adjudged in favor of plaintiffs hereunder. (Decision,
Intermediate Appellate Court, p. 7, Rollo, p. 39)
As regards the issue of the validity of the contract of lease of grave lot No. 159, Block No. 195 of the
North Cemetery for 50 years beginning from June 6, 1971 to June 6, 2021 as clearly stated in the receipt
duly signed by the deputy treasurer of the City of Manila and sealed by the city government, there is
nothing in the record that justifies the reversal of the conclusion of both the trial court and the Intermediate
Appellate Court to the effect that the receipt is in itself a contract of lease. (Decision, Intermediate
Appellate Court, p. 3, Rollo, pp. 5-6).
Under the doctrine of respondent superior, (Torio v. Fontanilla, supra), petitioner City of Manila is liable for
the tortious act committed by its agents who failed to verify and check the duration of the contract of
lease. The contention of the petitioner-city that the lease is covered by Administrative Order No. 5, series
of 1975 dated March 6, 1975 of the City of Manila for five (5) years only beginning from June 6, 1971 is
not meritorious for the said administrative order covers new leases. When subject lot was certified on
January 25, 1978 as ready for exhumation, the lease contract for fifty (50) years was still in full force and
effect.
HON. GABRIEL LUIS QUISUMBING, et al, petitioners,
vs.
HON. GWENDOLYN F. GARCIA et al, respondents.
The Commission on Audit (COA) conducted a financial audit on the Province of Cebu for the period
ending December 2004. Its audit team rendered a report, Part II of which states: "Several contracts in the
total amount ofP102,092,841.47 were not supported with a Sangguniang Panlalawigan resolution
authorizing the Provincial Governor to enter into a contract, as required under Section 22 of R.A. No.
7160."2 The audit team then recommended that, "Henceforth, the local chief executive must secure
a sanggunian resolution authorizing the former to enter into a contract as provided under Section 22 of
R.A. No. 7160."3
Gov. Garcia, in her capacity as the Provincial Governor of Cebu, sought the reconsideration of the
findings and recommendation of the COA. However, without waiting for the resolution of the
reconsideration sought, she instituted an action for Declaratory Relief before the RTC of Cebu City,
Branch 9. Impleaded as respondents were Delfin P. Aguilar, Helen S. Hilayo and Roy L. Ursal in their
official capacities as Cluster Director IV, Regional Cluster Director and Regional Legal and Adjudication
Director of the COA, respectively. The Sangguniang Panlalawigan of the Province of Cebu, represented
by Vice-Governor Gregorio Sanchez, Jr., was also impleaded as respondent.

Alleging that the infrastructure contracts4 subject of the audit report complied with the bidding procedures
provided under R.A. No. 9184 and were entered into pursuant to the general and/or supplemental
appropriation ordinances passed by the Sangguniang Panlalawigan, Gov. Garcia alleged that a separate
authority to enter into such contracts was no longer necessary.
Respondent Governor insists that at the time of the filing of the petition for declaratory relief, there was
not yet any breach of R.A. No. 7160. She further argues that the questioned contracts were executed
after a public bidding in implementation of specific items in the regular or supplemental appropriation
ordinances passed by the Sangguniang Panlalawigan. These ordinances allegedly serve as the
authorization required under R.A. No. 7160, such that the obtention of another authorization becomes not
only redundant but also detrimental to the speedy delivery of basic services.
The question that must be resolved by the Court should allegedly be whether the appropriation ordinance
referred to in Sec. 346 in relation to Sec. 306 of R.A. No. 7160 is the same prior authorization required
under Sec. 22(c) of the same law. To uphold the assailed Decision would allegedly give the local chief
executive unbridled authority to enter into any contract as long as an appropriation ordinance or budget
has been passed by the sanggunian concerned.
The trial courts pronouncement that "the parties in this case all agree that the contracts referred to in the
above findings are contracts entered into pursuant to the bidding procedures allowed in Republic Act No.
9184 or the Government Procurement Reform Acti.e., public bidding, and negotiated bid. The biddings
were made pursuant to the general and/or supplemental appropriation ordinances passed by
the Sangguniang Panlalawigan of Cebu x x x"14 is clearly belied by the Answer15 filed by petitioners
herein. Petitioners herein actually argue in their Answer that the contracts subject of the COAs findings
did not proceed from a public bidding. Further, there was no budget passed in 2004. What was allegedly
in force was the reenacted 2003 budget.16
Gov. Garcias contention that the questioned contracts complied with the bidding procedure in R.A. No.
9184 and were entered into pursuant to the general and supplemental appropriation ordinances allowing
these expenditures is diametrically at odds with the facts as presented by petitioners in this case. It is
notable, however, that while Gov. Garcia insists on the existence of appropriation ordinances which
allegedly authorized her to enter into the questioned contracts, she does not squarely deny that these
ordinances pertain to the previous years budget which was reenacted in 2004.
Thus, contrary to the trial courts finding, there was no agreement among the parties with regard to the
operative facts under which the case was to be resolved. Nonetheless, we can gather from Gov. Garcias
silence on the matter and the OSGs own discussion on the effect of a reenacted budget on the local chief
executives ability to enter into contracts, that during the year in question, the Province of Cebu was
indeed operating under a reenacted budget.
Note should be taken of the fact that Gov. Garcia, both in her petition for declaratory relief and in her
Comment on the instant petition, has failed to point out the specific provisions in the general and
supplemental appropriation ordinances copiously mentioned in her pleadings which supposedly
authorized her to enter into the questioned contracts.
Based on the foregoing discussion, there appear two basic premises from which the Court can proceed to
discuss the question of whether prior approval by the Sangguniang Panlalawigan was required before
Gov. Garcia could have validly entered into the questioned contracts. First, the Province of Cebu was
operating under a reenacted budget in 2004. Second, Gov. Garcia entered into contracts on behalf
of the province while this reenacted budget was in force.
Sec. 22(c) of R.A. No. 7160 provides:

Sec. 22. Corporate Powers.(a) Every local government unit, as a corporation, shall have
the following powers:
xxx
(c) Unless otherwise provided in this Code, no contract may be entered into by the local
chief executive in behalf of the local government unit without prior authorization by
the sanggunian concerned. A legible copy of such contract shall be posted at a
conspicuous place in the provincial capitol or the city, municipal or barangay hall.
As it clearly appears from the foregoing provision, prior authorization by the sanggunian concerned is
required before the local chief executive may enter into contracts on behalf of the local government unit.
Gov. Garcia posits that Sections 306 and 346 of R.A. No. 7160 are the exceptions to Sec. 22(c) and
operate to allow her to enter into contracts on behalf of the Province of Cebu without further authority from
the Sangguniang Panlalawigan other than that already granted in the appropriation ordinance for 2003
and the supplemental ordinances which, however, she did not care to elucidate on.
Sec. 346. Disbursements of Local Funds and Statement of Accounts.Disbursements
shall be made in accordance with the ordinance authorizing the annual or supplemental
appropriations without the prior approval of the sanggunian concerned. Within thirty (3)
days after the close of each month, the local accountant shall furnish the sanggunian with
such financial statements as may be prescribed by the COA. In the case of the year-end
statement of accounts, the period shall be sixty (60) days after the thirty-first (31 st) of
December.
Sec. 306 of R.A. No. 7160 merely contains a definition of terms. Read in conjunction with Sec. 346, Sec.
306 authorizes the local chief executive to make disbursements of funds in accordance with the ordinance
authorizing the annual or supplemental appropriations. The "ordinance" referred to in Sec. 346 pertains to
that which enacts the local government units budget, for which reason no further authorization from the
local council is required, the ordinance functioning, as it does, as the legislative authorization of the
budget.17
To construe Sections 306 and 346 of R.A. No. 7160 as exceptions to Sec. 22(c) would render the
requirement of priorsanggunian authorization superfluous, useless and irrelevant. There would be no
instance when such prior authorization would be required, as in contracts involving the disbursement of
appropriated funds. Yet, this is obviously not the effect Congress had in mind when it required, as a
condition to the local chief executives representation of the local government unit in business
transactions, the prior authorization of the sanggunian concerned. The requirement was deliberately
added as a measure of check and balance, to temper the authority of the local chief executive, and in
recognition of the fact that the corporate powers of the local government unit are wielded as much by its
chief executive as by its council.18 However, as will be discussed later, the sanggunian authorization may
be in the form of an appropriation ordinance passed for the year which specifically covers the project, cost
or contract to be entered into by the local government unit.
The fact that the Province of Cebu operated under a reenacted budget in 2004 lent a complexion to this
case which the trial court did not apprehend. Sec. 323 of R.A. No. 7160 provides that in case of a
reenacted budget, "only the annual appropriations for salaries and wages of existing positions, statutory
and contractual obligations, and essential operating expenses authorized in the annual and supplemental
budgets for the preceding year shall be deemed reenacted and disbursement of funds shall be in
accordance therewith."19
It should be observed that, as indicated by the word "only" preceding the above enumeration in Sec. 323,
the items for which disbursements may be made under a reenacted budget are exclusive. Clearly,

contractual obligations which were not included in the previous years annual and supplemental budgets
cannot be disbursed by the local government unit. It follows, too, that new contracts entered into by the
local chief executive require the prior approval of the sanggunian.
And so, to give life to the obvious intendment of the law and to avoid a construction which would render
Sec. 22(c) of R.A. No. 7160 meaningless,22 disbursement, as used in Sec. 346, should be understood to
pertain to payments for statutory and contractual obligations which the sanggunian has already
authorized thru ordinances enacting the annual budget and are therefore already subsisting obligations of
the local government unit. Contracts, as used in Sec. 22(c) on the other hand, are those which bind the
local government unit to new obligations, with their corresponding terms and conditions, for which the
local chief executive needs prior authority from the sanggunian.
The foregoing inexorably confirms the indispensability of the sanggunians authorization in the execution
of contracts which bind the local government unit to new obligations. Note should be taken of the fact that
R.A. No. 7160 does not expressly state the form that the authorization by the sanggunian has to take.
Such authorization may be done by resolution enacted in the same manner prescribed by ordinances,
except that the resolution need not go through a third reading for final consideration unless the majority of
all the members of the sanggunian decides otherwise.23
As regards the trial courts pronouncement that R.A. No. 9184 does not require the head of the procuring
entity to secure a resolution from the sanggunian concerned before entering into a contract, attention
should be drawn to the very same provision upon which the trial court based its conclusion. Sec. 37
provides: "The Procuring Entity shall issue the Notice to Proceed to the winning bidder not later than
seven (7) calendar days from the date of approval of the contract by the appropriate authority x x
x."
R.A. No. 9184 establishes the law and procedure for public procurement. Sec. 37 thereof explicitly makes
the approval of the appropriate authority which, in the case of local government units, is the sanggunian,
the point of reference for the notice to proceed to be issued to the winning bidder. This provision, rather
than being in conflict with or providing an exception to Sec. 22(c) of R.A. No. 7160, blends seamlessly
with the latter and even acknowledges that in the exercise of the local government units corporate
powers, the chief executive acts merely as an instrumentality of the local council. Read together, the cited
provisions mandate the local chief executive to secure the sanggunians approval before entering into
procurement contracts and to transmit the notice to proceed to the winning bidder not later than seven (7)
calendar days therefrom.
It cannot be overemphasized that the paramount consideration in the present controversy is the fact that
the Province of Cebu was operating under a re-enacted budget in 2004, resulting in an altogether
different set of rules as directed by Sec. 323 of R.A. 7160. This Decision, however, should not be so
construed as to proscribe any and all contracts entered into by the local chief executive without
formal sanggunian authorization. In cases, for instance, where the local government unit operates under
an annual as opposed to a re-enacted budget, it should be acknowledged that the appropriation passed
by the sanggunian may validly serve as the authorization required under Sec. 22(c) of R.A. No. 7160.
After all, an appropriation is an authorization made by ordinance, directing the payment of goods and
services from local government funds under specified conditions or for specific purposes. The
appropriation covers the expenditures which are to be made by the local government unit, such as current
operating expenditures26 and capital outlays.27
The question of whether a sanggunian authorization separate from the appropriation ordinance is
required should be resolved depending on the particular circumstances of the case. Resort to the
appropriation ordinance is necessary in order to determine if there is a provision therein which specifically
covers the expense to be incurred or the contract to be entered into. Should the appropriation ordinance,
for instance, already contain in sufficient detail the project and cost of a capital outlay such that all that the
local chief executive needs to do after undergoing the requisite public bidding is to execute the contract,
no further authorization is required, the appropriation ordinance already being sufficient.

On the other hand, should the appropriation ordinance describe the projects in generic terms such as
"infrastructure projects," "inter-municipal waterworks, drainage and sewerage, flood control, and irrigation
systems projects," "reclamation projects" or "roads and bridges," there is an obvious need for a covering
contract for every specific project that in turn requires approval by the sanggunian.
Specific sanggunian approval may also be required for the purchase of goods and services which are
neither specified in the appropriation ordinance nor encompassed within the regular personal services
and maintenance operating expenses.
SEVERINO B. VERGARA, Petitioner,
vs.
THE HON. OMBUDSMAN, SEVERINO J. LAJARA, and VIRGINIA G. BARORO, Respondents.
On 25 June 2001, the City Council of Calamba (City Council), where petitioner was a member, issued
Resolution No. 115, Series of 2001. The resolution authorized Mayor Lajara to negotiate with landowners
within the vicinity of Barangays Real, Halang, and Uno, for a new city hall site. 5 During the public hearing
on 3 October 2001, the choice for the new city hall site was limited to properties owned by Pamana and a
lot in Barangay Saimsin, Calamba.6
On 29 October 2001, the City Council passed Resolution No. 280, Series of 2001, authorizing Mayor
Lajara to purchase several lots owned by Pamana with a total area of 55,190 square meters for the price
of P129,017,600.7Mayor Lajara was also authorized to execute, sign and deliver the required documents. 8
On 13 November 2001, the City Government of Calamba (Calamba City), through Mayor Lajara, entered
into the following agreements:
1. Memorandum of Agreement (MOA)
The MOA with Pamana and Prudential Bank discussed the terms and conditions of the
sale of 15 lots with a total area of 55,190 square meters. The total purchase price
of P129,017,600 would be payable in installment as follows: P10,000,000 on or before 15
November 2001, P19,017,600 on or before 31 January 2002, and the balance
of P100,000,000 in four equal installments payable on or before 31 April 2002, 31 July
2002, 31 October 2002, and 31 January 2003.9
2. Deed of Sale
Under the Deed of Sale, Calamba City purchased from Pamana and Prudential Bank 15
lots with a total area of 55,190 square meters, more or less, located in Brgy.
Lecheria/Real, Calamba, Laguna with Transfer Certificate of Title (TCT) Numbers
159893, 159894, 159895, 159896, 159897, 158598, 162412, 162413, 204488, 66140,
61703, 66141, 66142, 66143, and 61705.
3. Deed of Real Estate Mortgage
Calamba City mortgaged to Pamana and Prudential Bank the same properties subject of
the Deed of Sale as security for the balance of the purchase price.
4. Deed of Assignment of Internal Revenue Allotment (IRA)
Calamba Citys IRAs from January 2002 to 31 January 2003 were assigned to Pamana
and Prudential Bank in the amount of P119,017,600.

On 19 November 2001, the above documents were endorsed to the City Council. Petitioner alleged that
all these documents were not ratified by the City Council, a fact duly noted in an Audit Observation
Memorandum dated 9 August 2002 and issued by State Auditor Ruben C. Pagaspas of the Commission
on Audit.
On the ratification by the City Council of all
documents pertaining to the purchase of the lots
Petitioner contends that all the documents, like the Memorandum of Agreement, Deed of Sale, Deed of
Mortgage, and Deed of Assignment, do not bear the ratification by the City Council.
In the assailed Order, the Ombudsman held that the various actions performed by Mayor Lajara in
connection with the purchase of the lots were all authorized by the Sangguniang Panlungsod as
manifested in numerous resolutions. The lack of ratification alone does not characterize the purchase of
the properties as one that gave unwarranted benefits.
In its Memorandum submitted before this Court, the Ombudsman, through the Office of the Solicitor
General, pointed out that the ratification by the City Council is not a condition sine qua non for the local
chief executive to enter into contracts on behalf of the city. The law requires prior authorization from the
City Council and in this case, Resolution No. 280 is the City Councils stamp of approval and authority for
Mayor Lajara to purchase the subject lots.
Section 22. Corporate Powers. - x x x
(c) Unless otherwise provided in this Code, no contract may be entered into by the local chief
executive in behalf of the local government unit without prior authorization by the sanggunian
concerned. A legible copy of such contract shall be posted at a conspicuous place in the provincial
capitol or the city, municipal or barangay hall. (Boldfacing and underscoring supplied)
As aptly pointed out by the Ombudsman, ratification by the City Council is not a condition sine qua non for
Mayor Lajara to enter into contracts. With the resolution issued by the Sangguniang Panlungsod, it cannot
be said that there was evident bad faith in purchasing the subject lots. The lack of ratification alone does
not characterize the purchase of the properties as one that gave unwarranted benefits to Pamana or
Prudential Bank or one that caused undue injury to Calamba City.
ROLANDO E. SISON, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
Petitioner Rolando E. Sison was the municipal mayor of Calintaan, Occidental Mindoro, a fourth-class
municipality,1from July 1, 1992 to June2 30, 1995, while Rigoberto de Jesus was the municipal treasurer.
On July 18, 1994, state auditor Elsa E. Pajayon conducted a post-audit investigation which revealed that
during petitioners incumbency, no public bidding was conducted for the purchase of a Toyota Land
Cruiser, 119 bags of Fortune cement, an electric generator set, certain construction materials, two Desert
Dueler tires, and a computer and its accessories. Pajayon also found out that there were irregularities in
the documents supporting the acquisitions.
Thus, on June 4, 1998, petitioner and de Jesus were indicted before the Sandiganbayan in seven
separate Informations3 for seven counts of violation of Section 3(e) of Republic Act (RA) 3019. 4
Petitioner appealed6 to this Court, praying for an acquittal because his guilt was allegedly not proven
beyond reasonable doubt.

We dismiss the appeal.

Non-Compliance with the Requirements of Personal Canvass
RA 71607 explicitly provides that, as a rule, "acquisitions of supplies by local government units shall be
through competitive bidding."8 By way of exception, no bidding is required in the following instances:
(1) personal canvass of responsible merchants;
(2) emergency purchase;
(3) negotiated purchase;
(4) direct purchase from manufacturers or exclusive distributors and
(5) purchase from other government entities.9
Since personal canvass (the method availed of by petitioner) is an exception to the rule requiring public
bidding, Section 367 of RA 7160 provides for limitations on the resort to this mode of procurement:
Sec. 367. Procurement through Personal Canvass.Upon approval by the Committee on Awards,
procurement of supplies may be affected after personal canvass of at least three (3) responsible suppliers
in the locality by a committee of three (3) composed of the local general services officer or the municipal
or barangay treasurer, as the case may be, the local accountant, and the head of office or department for
whose use the supplies are being procured. The award shall be decided by the Committee on Awards.
Purchases under this Section shall not exceed the amounts specified hereunder for all items in any one
(1) month for each local government unit:
xxx
Municipalities:
First Class
Second and

One hundred fifty thousand pesos (P150,000.00)

Third Class

Fourth Class and Below

Forty thousand pesos (P40,000.00)

Twenty thousand pesos (P20,000.00) (emphasis supplied)

In relation thereto, Section 364 of RA 7160 mandates:

Section 364. The Committee on Awards.There shall be in every province, city or municipality a
Committee on Awards to decide the winning bids and questions of awards on procurement and disposal
of property.
The Committee on Awards shall be composed of the local chief executive as chairman, the local
treasurer, the local accountant, the local budget officer, the local general services officer, and the head of
office or department for whose use the supplies are being procured, as members. In case a head of
office or department would sit in a dual capacity a member of the sanggunian elected from among
its members shall sit as a member. The Committee on Awards at the barangay level shall be
the sangguniang barangay. No national official shall sit as member of the Committee on Awards.
(emphasis supplied)

Note that the law repeatedly uses the word "shall" to emphasize the mandatory nature of its provisions.
Insofar as the purchase of the Toyota Land Cruiser11 is concerned, the Sandiganbayan found that the
personal canvass was effected solely by petitioner, without the participation of the municipal accountant
and petitioners co-accused de Jesus, the municipal treasurer. Worse, there was no showing that that the
award was decided by the Committee on Awards. Only an abstract of canvass supported the award,
signed by petitioner and de Jesus, without the required signatures of the municipal accountant and
budget officer.
To reiterate, RA 7160 requires that where the head of the office or department requesting the requisition
sits in a dual capacity, the participation of a Sanggunian member (elected from among the members of
the Sanggunian) is necessary. Petitioner clearly disregarded this requirement because, in all the
purchases made, he signed in a dual capacityas chairman and member (representing the head of office
for whose use the supplies were being procured). That is strictly prohibited. None of the regular members
of the Committee on Awards may sit in a dual capacity. Where any of the regular members is the
requisitioning party, a special member from the Sanggunian is required. The prohibition is meant to check
or prevent conflict of interest as well as to protect the use of the procurement process and the public
funds for irregular or unlawful purchases.
The same flaws attended the procurement of 119 bags of Fortune cement, 12 electric power generator
set,13 various construction materials,14 two Desert Dueler tires15 and a computer and its accessories.16
With the kind of items purchased by petitioner, he also clearly spent more than P20,000or beyond the
threshold amount per month allowed by Section 367 of RA 7160 as far as purchases through personal
canvass by fourth-class municipalities (like Calintaan) are concerned.
FELICITAS P. ONG, Petitioner,
vs.
THE PEOPLE OF THE PHILIPPINES, Respondent.
On August 12, 1996 petitioner in her capacity as Mayor of Angadanan, Isabela, bought 3 an Isuzu dump
truck4 for P750,000.00 from Josephine Ching for the use of the municipality.
On March 26, 1997, a letter-complaint5 was filed against petitioner by her successor, Mayor Diosdado
Siquian6 and several other Sangguniang Bayan members7 before the Office of the Ombudsman, accusing
her of malversation of public funds and property in connection with several alleged irregularities
committed during her term as Mayor of Angadanan, including the purchase of the dump truck for being
grossly overpriced.
On August 14, 1997, Graft Investigation Officer I Germain G. Lim found no probable cause to hold
petitioner liable for the charges. Upon reconsideration however, she was indicted for violation of Sec. 3 (e)
of RA No. 3019, as amended, with respect to the acquisition of the dump truck.
Hence, this appeal where petitioner contends that the Sandiganbayan erred in finding her guilty of
violation of Section 3 (e) of RA No. 3019. In particular, petitioner denies causing injury or giving anybody
any unwarranted benefits, advantage or preference in the discharge of her official or administrative
functions, or that she is guilty of any manifest partiality, evident bad faith or gross negligence.
We are not persuaded.
Section 3. Corrupt practices of public officers.- In addition to acts or omissions of public officers already
penalized by existing law, the following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful

xxxx
(e) Causing any undue injury to any party, including the Government, or giving any private party any
unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial
functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision
shall apply to officers and employees of offices or government corporations charged with the grant of
licenses or permits or other concessions.
The following essential elements must be present:
1. The accused must be a public officer discharging administrative, judicial or official
functions;
2. He must have acted with manifest partiality, evident bad faith or gross inexcusable
negligence; and
3. His action caused any undue injury to any party, including the government, or gave any
private party unwarranted benefits, advantage or preference in the discharge of his
functions.21
We find that all the elements of the offense charged have been duly established beyond reasonable
doubt. Petitioner, being then the Mayor of Angadanan, Isabela is a public officer discharging
administrative and official functions. The act of purchasing the subject truck without the requisite public
bidding and authority from the Sangguniang Bayan displays gross and inexcusable negligence. Undue
injury was caused to the Government because said truck could have been purchased at a much lower
price.
The contention that the acquisition through a negotiated purchase was valid the same being pursuant to
COA Resolution Nos. 95-244 and 95-244-A, is untenable. Petitioners reliance on said COA Resolutions
is misplaced. COA Resolution No. 95-244 as amended by Resolution No. 95-244-A states that there is no
necessity of prescribing the limit of purchases not subject to public bidding since Executive Order No.
30122 authorizes the heads of an agency with the approval of the Department Heads to enter into
a negotiated purchase as long as the same is advantageous to the government.
Both resolutions are implementing guidelines which must be read and applied in conjunction with Title
VI,23 Book II, of Republic Act No. 7160 otherwise known as the Local Government Code of 1991. Section
356 thereof states the general rule that the acquisition of supplies by the local government units shall be
through competitive bidding. The only instances when public bidding requirements can be dispensed with
are provided under Section 366, to wit:
Section 366. Procurement without Public Bidding. - Procurement of supplies may be made without the
benefit of public bidding under any of the following modes:
Negotiated purchase;
negotiated purchase is further qualified by Section 369 thereof which states:
Section 369. Negotiated Purchase.- (a) In cases where public biddings have failed for two (2)
consecutive times and no suppliers have qualified to participate or win in the biddings, local government
units may, through the local chief executive concerned, undertake the procurement of supplies by
negotiated purchase, regardless of amount, without public bidding: provided, however, that the contract
covering the negotiated purchase shall be approved by the Sanggunian concerned x x x.

Thus, a local chief executive could only resort to a negotiated purchase under Section 366 of RA No.
7160 and COA Resolution Nos. 95-244 and 95-244-A, if the following two requisites are present: (1)
public biddings have failed for at least two consecutive times and; (2) no suppliers have qualified to
participate or win in the biddings.
The Sandiganbayan correctly ruled that by procuring the subject truck through a negotiated
purchase without public bidding, petitioner failed to comply with the above stated procedure. Indeed, as
the local chief executive, petitioner is not only expected to know the proper procedure in the procurement
of supplies, she is also duty bound to follow the same and her failure to discharge this duty constitutes
gross and inexcusable negligence.
Price quotations obtained from several suppliers24 as well as the testimonies of Ramon de Guzman
Sevilla, Ruben Lappay and Mirasol Lappay proved that the dump truck purchased by petitioner was overpriced. Hence, had petitioner observed the proper procurement procedure, the municipality of Angadanan
could have acquired a dump truck similar to, if not better than the one originally bought, at a much lower
price of not more than P500,000.00. Without doubt, petitioners negligence caused undue injury to the
government while at the same time gave unwarranted benefits to Josephine Ching.
Section 23. Authority to Negotiate and Secure Grants. - Local chief executives may, upon authority of the
sanggunian, negotiate and secure financial grants or donations in kind, in support of the basic services or
facilities enumerated under Section 17 hereof, from local and foreign assistance agencies without
necessity of securing clearance or approval therefor from any department, agency, or office of the
national government of from any higher local government unit: Provided, That projects financed by such
grants or assistance with national security implications shall be approved by the national agency
concerned: Provided, further, That when such national agency fails to act on the request for approval
within thirty (30) days from receipt thereof, the same shall be deemed approved.
The local chief executive shall, within thirty (30) days upon signing of such grant agreement or deed of
donation, report the nature, amount, and terms of such assistance to both Houses of Congress and the
President.
CC, Article 2189. Provinces, cities and municipalities shall be liable for damages for the death of, or
injuries suffered by, any person by reason of the defective condition of roads, streets, bridges, public
buildings, and other public works under their control or supervision. (n)
ARTICLE 471. Liability for Damages. As provided in Article 2189 of RA 386,
otherwise known as the Civil Code of the Philippines, as amended, provinces, cities,
and municipalities shall be liable for damages for the death of, or injuries suffered
by, any person by reason of the defective condition of roads, streets, bridges, public
buildings, and other public works under their control or supervision. The extent of liability for damages
shall be governed by the provisions of the Civil Code on quasidelicts.
CITY OF MANILA, petitioner,
vs.
GENARO N. TEOTICO and COURT OF APPEALS, respondents.
On January 27, 1958, at about 8:00 p.m., Genaro N. Teotico was at the corner of the Old Luneta and P.
Burgos Avenue, Manila, within a "loading and unloading" zone, waiting for a jeepney to take him down
town. After waiting for about five minutes, he managed to hail a jeepney that came along to a stop. As he
stepped down from the curb to board the jeepney, and took a few steps, he fell inside an uncovered and
unlighted catch basin or manhole on P. Burgos Avenue. Due to the fall, his head hit the rim of the
manhole breaking his eyeglasses and causing broken pieces thereof to pierce his left eyelid. As blood
flowed therefrom, impairing his vision, several persons came to his assistance and pulled him out of the
manhole. One of them brought Teotico to the Philippine General Hospital, where his injuries were treated,
after which he was taken home. In addition to the lacerated wound in his left upper eyelid, Teotico

suffered contusions on the left thigh, the left upper arm, the right leg and the upper lip apart from an
abrasion on the right infra-patella region. These injuries and the allergic eruption caused by anti-tetanus
injections administered to him in the hospital, required further medical treatment by a private practitioner
who charged therefor P1,400.00.
As a consequence of the foregoing occurrence, Teotico filed, with the Court of First Instance of
Manila, a complaint which was, subsequently, amended for damages against the City of Manila, its
mayor, city engineer, city health officer, city treasurer and chief of police.
The first issue raised by the latter is whether the present case is governed by Section 4 of Republic Act
No. 409 (Charter of the City of Manila) reading:
The city shall not be liable or held for damages or injuries to persons or property
arising from the failure of the Mayor, the Municipal Board, or any other city officer, to
enforce the provisions of this chapter, or any other law or ordinance, or from negligence
of said Mayor, Municipal Board, or other officers while enforcing or attempting to enforce
said provisions.
or by Article 2189 of the Civil Code of the Philippines which provides:
Provinces, cities and municipalities shall be liable for damages for the death of, or
injuries suffered by, any person by reason of defective conditions of road, streets,
bridges, public buildings, and other public works under their control or supervision.
Manila maintains that the former provision should prevail over the latter, because Republic Act 409,
is a special law, intended exclusively for the City of Manila, whereas the Civil Code is a general law,
applicable to the entire Philippines.
The Court of Appeals, however, applied the Civil Code, and, we think, correctly. It is true that,
insofar as its territorial application is concerned, Republic Act No. 409 is a special law and the Civil Code
a general legislation; but, as regards the subject-matter of the provisions above quoted, Section 4 of
Republic Act 409 establishes a general rule regulating the liability of the City of Manila for: "damages or
injury to persons or property arising from the failure of" city officers "to enforce the provisions of" said Act
"or any other law or ordinance, or from negligence" of the city "Mayor, Municipal Board, or other officers
while enforcing or attempting to enforce said provisions." Upon the other hand, Article 2189 of the Civil
Code constitutes a particular prescription making "provinces, cities and municipalities . . . liable for
damages for the death of, or injury suffered by any person by reason" specifically "of the defective
condition of roads, streets, bridges, public buildings, and other-public works under their control or
supervision." In other words, said section 4 refers to liability arising from negligence, in general,
regardless of the object thereof, whereas Article 2189 governs liability due to "defective streets," in
particular. Since the present action is based upon the alleged defective condition of a road, said Article
2189 is decisive thereon.
It is urged that the City of Manila cannot be held liable to Teotico for damages: 1) because the
accident involving him took place in a national highway; and 2) because the City of Manila has not been
negligent in connection therewith.
As regards the first issue, we note that it is based upon an allegation of fact not made in the answer
of the City. Moreover, Teotico alleged in his complaint, as well as in his amended complaint, that his
injuries were due to the defective condition of a street which is "under the supervision and control" of the
City. In its answer to the amended complaint, the City, in turn, alleged that "the streets aforementioned
were and have been constantly kept in good condition and regularly inspected and the storm drains and
manholes thereof covered by the defendant City and the officers concerned" who "have been ever
vigilant and zealous in the performance of their respective functions and duties as imposed upon them by

law." Thus, the City had, in effect, admitted that P. Burgos Avenue was and is under its control and
supervision.
Moreover, the assertion to the effect that said Avenue is a national highway was made, for
the first time, in its motion for reconsideration of the decision of the Court of Appeals. Such assertion
raised, therefore, a question of fact, which had not been put in issue in the trial court, and cannot be set
up, for the first time, on appeal, much less after the rendition of the decision of the appellate court, in a
motion for the reconsideration thereof.
At any rate, under Article 2189 of the Civil Code, it is not necessary for the liability therein
established to attach that the defective roads or streets belong to the province, city or municipality from
which responsibility is exacted. What said article requires is that the province, city or municipality have
either "control or supervision" over said street or road. Even if P. Burgos Avenue were, therefore, a
national highway, this circumstance would not necessarily detract from its "control or supervision" by the
City of Manila, under Republic Act 409.
BERNARDINO JIMENEZ, petitioner,
vs.
CITY OF MANILA and INTERMEDIATE APPELLATE COURT, respondents.
The evidence of the plaintiff (petitioner herein) shows that in the morning of August 15, 1974 he, together
with his neighbors, went to Sta. Ana public market to buy "bagoong" at the time when the public market
was flooded with ankle deep rainwater. After purchasing the "bagoong" he turned around to return home
but he stepped on an uncovered opening which could not be seen because of the dirty rainwater, causing
a dirty and rusty four- inch nail, stuck inside the uncovered opening, to pierce the left leg of plaintiffpetitioner penetrating to a depth of about one and a half inches. After administering first aid treatment at a
nearby drugstore, his companions helped him hobble home. He felt ill and developed fever and he had to
be carried to Dr. Juanita Mascardo. Despite the medicine administered to him by the latter, his left leg
swelled with great pain. He was then rushed to the Veterans Memorial Hospital where he had to be
confined for twenty (20) days due to high fever and severe pain.
Upon his discharge from the hospital, he had to walk around with crutches for fifteen (15) days. His injury
prevented him from attending to the school buses he is operating. As a result, he had to engage the
services of one Bienvenido Valdez to supervise his business for an aggregate compensation of nine
hundred pesos (P900.00). (Decision, AC-G.R. CV No. 01387, Rollo, pp. 13-20).
Petitioner sued for damages the City of Manila and the Asiatic Integrated Corporation under whose
administration the Sta. Ana Public Market had been placed by virtue of a Management and Operating
Contract (Rollo, p. 47).
The lone assignment of error raised in this petition is on whether or not the Intermediate Appellate Court
erred in not ruling that respondent City of Manila should be jointly and severally liable with Asiatic
Integrated Corporation for the injuries petitioner suffered.
As correctly found by the Intermediate Appellate Court, there is no doubt that the plaintiff suffered injuries
when he fell into a drainage opening without any cover in the Sta. Ana Public Market. Defendants do not
deny that plaintiff was in fact injured although the Asiatic Integrated Corporation tries to minimize the
extent of the injuries, claiming that it was only a small puncture and that as a war veteran, plaintiff's
hospitalization at the War Veteran's Hospital was free. (Decision, AC-G.R. CV No. 01387, Rollo, p. 6).
Respondent City of Manila maintains that it cannot be held liable for the injuries sustained by the
petitioner because under the Management and Operating Contract, Asiatic Integrated Corporation
assumed all responsibility for damages which may be suffered by third persons for any cause attributable
to it.

It has also been argued that the City of Manila cannot be held liable under Article 1, Section 4 of Republic
Act No. 409 as amended (Revised Charter of Manila) which provides:
The City shall not be liable or held for damages or injuries to persons or property
arising from the failure of the Mayor, the Municipal Board, or any other City
Officer, to enforce the provisions of this chapter, or any other law or ordinance, or
from negligence of said Mayor, Municipal Board, or any other officers while
enforcing or attempting to enforce said provisions.
This issue has been laid to rest in the case of City of Manila v. Teotico (22 SCRA 269-272 [1968]) where
the Supreme Court squarely ruled that Republic Act No. 409 establishes a general rule regulating the
liability of the City of Manila for "damages or injury to persons or property arising from the failure of city
officers" to enforce the provisions of said Act, "or any other law or ordinance or from negligence" of the
City "Mayor, Municipal Board, or other officers while enforcing or attempting to enforce said provisions."
Upon the other hand, Article 2189 of the Civil Code of the Philippines which provides that:
Provinces, cities and municipalities shall be liable for damages for the death of,
or injuries suffered by any person by reason of defective conditions of roads,
streets, bridges, public buildings and other public works under their control or
supervision.
constitutes a particular prescription making "provinces, cities and municipalities ... liable for damages for
the death of, or injury suffered by any person by reason" specifically "of the defective condition of
roads, streets, bridges, public buildings, and other public works under their control or supervision." In
other words, Art. 1, sec. 4, R.A. No. 409 refers to liability arising from negligence, in general, regardless of
the object, thereof, while Article 2189 of the Civil Code governs liability due to "defective streets, public
buildings and other public works" in particular and is therefore decisive on this specific case.
In the same suit, the Supreme Court clarified further that under Article 2189 of the Civil Code, it is not
necessary for the liability therein established to attach, that the defective public works belong to the
province, city or municipality from which responsibility is exacted. What said article requires is that the
province, city or municipality has either "control or supervision" over the public building in question.
In the case at bar, there is no question that the Sta. Ana Public Market, despite the Management and
Operating Contract between respondent City and Asiatic Integrated Corporation remained under the
control of the former.
For one thing, said contract is explicit in this regard, when it provides:
II
That immediately after the execution of this contract, the SECOND PARTY shall
start the painting, cleaning, sanitizing and repair of the public markets and
talipapas and within ninety (90) days thereof, the SECOND PARTY shall submit a
program of improvement, development, rehabilitation and reconstruction of the
city public markets and talipapas subject to prior approval of the FIRST PARTY.
(Rollo, p. 44)
xxx xxx xxx
VI

That all present personnel of the City public markets and talipapas shall be
retained by the SECOND PARTY as long as their services remain satisfactory
and they shall be extended the same rights and privileges as heretofore enjoyed
by them. Provided, however, that the SECOND PARTY shall have the right,
subject to prior approval of the FIRST PARTY to discharge any of the present
employees for cause. (Rollo, p. 45).
VII
That the SECOND PARTY may from time to time be required by the FIRST
PARTY, or his duly authorized representative or representatives, to report, on the
activities and operation of the City public markets and talipapas and the facilities
and conveniences installed therein, particularly as to their cost of construction,
operation and maintenance in connection with the stipulations contained in this
Contract. (lbid)
The fact of supervision and control of the City over subject public market was admitted by Mayor Ramon
Bagatsing in his letter to Secretary of Finance Cesar Virata which reads:
These cases arose from the controversy over the Management and Operating
Contract entered into on December 28, 1972 by and between the City of Manila
and the Asiatic Integrated Corporation, whereby in consideration of a fixed
service fee, the City hired the services of the said corporation to undertake the
physical management, maintenance, rehabilitation and development of the City's
public markets and' Talipapas' subject to the control and supervision of the City.
xxx xxx xxx
It is believed that there is nothing incongruous in the exercise of these powers
vis-a-vis the existence of the contract, inasmuch as the City retains the power of
supervision and control over its public markets and talipapas under the terms of
the contract. (Exhibit "7-A") (Emphasis supplied.) (Rollo, p. 75).
In fact, the City of Manila employed a market master for the Sta. Ana Public Market whose primary duty is
to take direct supervision and control of that particular market, more specifically, to check the safety of the
place for the public.
Finally, Section 30 (g) of the Local Tax Code as amended, provides:
The treasurer shall exercise direct and immediate supervision administration and
control over public markets and the personnel thereof, including those whose
duties concern the maintenance and upkeep of the market and ordinances and
other pertinent rules and regulations. (Emphasis supplied.) (Rollo, p. 76)
The contention of respondent City of Manila that petitioner should not have ventured to go to Sta. Ana
Public Market during a stormy weather is indeed untenable. As observed by respondent Court of Appeals,
it is an error for the trial court to attribute the negligence to herein petitioner. More specifically stated, the
findings of appellate court are as follows:
... The trial court even chastised the plaintiff for going to market on a rainy day
just to buy bagoong. A customer in a store has the right to assume that the owner
will comply with his duty to keep the premises safe for customers. If he ventures
to the store on the basis of such assumption and is injured because the owner

did not comply with his duty, no negligence can be imputed to the customer.
(Decision, AC-G. R. CV No. 01387, Rollo, p. 19).
As a defense against liability on the basis of a quasi-delict, one must have exercised the diligence of a
good father of a family. (Art. 1173 of the Civil Code).
There is no argument that it is the duty of the City of Manila to exercise reasonable care to keep the
public market reasonably safe for people frequenting the place for their marketing needs.
While it may be conceded that the fulfillment of such duties is extremely difficult during storms and floods,
it must however, be admitted that ordinary precautions could have been taken during good weather to
minimize the dangers to life and limb under those difficult circumstances.
For instance, the drainage hole could have been placed under the stalls instead of on the passage ways.
Even more important is the fact, that the City should have seen to it that the openings were covered.
Sadly, the evidence indicates that long before petitioner fell into the opening, it was already uncovered,
and five (5) months after the incident happened, the opening was still uncovered. (Rollo, pp. 57; 59).
Moreover, while there are findings that during floods the vendors remove the iron grills to hasten the flow
of water (Decision, AC-G.R. CV No. 0 1387; Rollo, p. 17), there is no showing that such practice has ever
been prohibited, much less penalized by the City of Manila. Neither was it shown that any sign had been
placed thereabouts to warn passersby of the impending danger.
To recapitulate, it appears evident that the City of Manila is likewise liable for damages under Article 2189
of the Civil Code, respondent City having retained control and supervision over the Sta. Ana Public
Market and as tort-feasor under Article 2176 of the Civil Code on quasi-delicts.
Petitioner had the right to assume that there were no openings in the middle of the passageways and if
any, that they were adequately covered. Had the opening been covered, petitioner could not have fallen
into it. Thus the negligence of the City of Manila is the proximate cause of the injury suffered, the City is
therefore liable for the injury suffered by the petitioner.
FLORENTINA A. GUILATCO, petitioner,
vs.
CITY OF DAGUPAN, and the HONORABLE COURT OF APPEALS, respondents.
It would appear from the evidences that on July 25, 1978, herein plaintiff, a Court
Interpreter of Branch III, CFI--Dagupan City, while she was about to board a
motorized tricycle at a sidewalk located at Perez Blvd. (a National Road, under
the control and supervision of the City of Dagupan) accidentally fell into a
manhole located on said sidewalk, thereby causing her right leg to be fractured.
As a result thereof, she had to be hospitalized, operated on, confined, at first at
the Pangasinan Provincial Hospital, from July 25 to August 3, 1978 (or for a
period of 16 days). She also incurred hospitalization, medication and other
expenses to the tune of P 8,053.65 (Exh. H to H-60) or a total of P 10,000.00 in
all, as other receipts were either lost or misplaced; during the period of her
confinement in said two hospitals, plaintiff suffered severe or excruciating pain
not only on her right leg which was fractured but also on all parts of her body; the
pain has persisted even after her discharge from the Medical City General
Hospital on October 9, 1978, to the present. Despite her discharge from the
Hospital plaintiff is presently still wearing crutches and the Court has actually
observed that she has difficulty in locomotion. From the time of the mishap on
July 25, 1978 up to the present, plaintiff has not yet reported for duty as court
interpreter, as she has difficulty of locomotion in going up the stairs of her office,
located near the city hall in Dagupan City. She earns at least P 720.00 a month

consisting of her monthly salary and other means of income, but since July 25,
1978 up to the present she has been deprived of said income as she has already
consumed her accrued leaves in the government service. She has lost several
pounds as a result of the accident and she is no longer her former jovial self, she
has been unable to perform her religious, social, and other activities which she
used to do prior to the incident.
Dr. Norberto Felix and Dr. Dominado Manzano of the Provincial Hospital, as well
as Dr. Antonio Sison of the Medical City General Hospital in Mandaluyong Rizal
(Exh. I; see also Exhs. F, G, G-1 to G-19) have confirmed beyond shadow of any
doubt the extent of the fracture and injuries sustained by the plaintiff as a result of
the mishap. On the other hand, Patrolman Claveria, De Asis and Cerezo
corroborated the testimony of the plaintiff regarding the mishap and they have
confirmed the existence of the manhole (Exhs. A, B, C and sub-exhibits) on the
sidewalk along Perez Blvd., at the time of the incident on July 25, 1978 which
was partially covered by a concrete flower pot by leaving gaping hole about 2 ft.
long by 1 1/2 feet wide or 42 cms. wide by 75 cms. long by 150 cms. deep (see
Exhs. D and D-1).
Defendant Alfredo Tangco, City Engineer of Dagupan City and admittedly exofficio Highway Engineer, City Engineer of the Public Works and Building Official
for Dagupan City, admitted the existence of said manhole along the sidewalk in
Perez Blvd., admittedly a National Road in front of the Luzon Colleges. He also
admitted that said manhole (there are at least 11 in all in Perez Blvd.) is owned
by the National Government and the sidewalk on which they are found along
Perez Blvd. are also owned by the National Government. But as City Engineer of
Dagupan City, he supervises the maintenance of said manholes or drainage
system and sees to it that they are properly covered, and the job is specifically
done by his subordinates, Mr. Santiago de Vera (Maintenance Foreman) and
Engr. Ernesto Solermo also a maintenance Engineer. In his answer defendant
Tangco expressly admitted in par. 7-1 thereof, that in his capacity as ex-officio
Highway Engineer for Dagupan City he exercises supervision and control over
National roads, including the Perez Blvd. where the incident happened.
In this review on certiorari, we have simplified the errors assigned by the petitioner to a single issue:
whether or not control or supervision over a national road by the City of Dagupan exists, in effect binding
the city to answer for damages in accordance with article 2189 of the Civil Code.
The liability of public corporations for damages arising from injuries suffered by pedestrians from the
defective condition of roads is expressed in the Civil Code as follows:
Article 2189. Provinces, cities and municipalities shall be liable for damages for
the death of, or injuries suffered by, any person by reason of the defective
condition of roads, streets, bridges, public buildings, and other public works
under their control or supervision.
It is not even necessary for the defective road or street to belong to the province, city or municipality for
liability to attach. The article only requires that either control or supervision is exercised over the defective
road or street. 6
In the case at bar, this control or supervision is provided for in the charter of Dagupan and is exercised
through the City Engineer who has the following duties:

Sec. 22. The City Engineer--His powers, duties and compensation-There shall be
a city engineer, who shall be in charge of the department of Engineering and
Public Works. He shall receive a salary of not exceeding three thousand pesos
per annum. He shall have the following duties:
xxx
(j) He shall have the care and custody of the public system of waterworks and
sewers, and all sources of water supply, and shall control, maintain and regulate
the use of the same, in accordance with the ordinance relating thereto; shall
inspect and regulate the use of all private systems for supplying water to the city
and its inhabitants, and all private sewers, and their connection with the public
sewer system.
xxx
The same charter of Dagupan also provides that the laying out, construction and improvement of streets,
avenues and alleys and sidewalks, and regulation of the use thereof, may be legislated by the Municipal
Board . 7 Thus the charter clearly indicates that the city indeed has supervision and control over the
sidewalk where the open drainage hole is located.
The express provision in the charter holding the city not liable for damages or injuries sustained by
persons or property due to the failure of any city officer to enforce the provisions of the charter, can not be
used to exempt the city, as in the case at bar.8
The charter only lays down general rules regulating the liability of the city. On the other hand article 2189
applies in particular to the liability arising from "defective streets, public buildings and other public
works." 9
The City Engineer, Mr. Alfredo G. Tangco, admits that he exercises control or supervision over the said
road. But the city can not be excused from liability by the argument that the duty of the City Engineer to
supervise or control the said provincial road belongs more to his functions as an ex-officio Highway
Engineer of the Ministry of Public Highway than as a city officer. This is because while he is entitled to an
honorarium from the Ministry of Public Highways, his salary from the city government substantially
exceeds the honorarium.
Alfredo G. Tangco "(i)n his official capacity as City Engineer of Dagupan, as Ex- Officio Highway
Engineer, as Ex-Officio City Engineer of the Bureau of Public Works, and, last but not the least, as
Building Official for Dagupan City, receives the following monthly compensation: P 1,810.66 from
Dagupan City; P 200.00 from the Ministry of Public Highways; P 100.00 from the Bureau of Public Works
and P 500.00 by virtue of P.D. 1096, respectively." 10 This function of supervision over streets, public
buildings, and other public works pertaining to the City Engineer is coursed through a Maintenance
Foreman and a Maintenance Engineer.11 Although these last two officials are employees of the National
Government, they are detailed with the City of Dagupan and hence receive instruction and supervision
from the city through the City Engineer.
There is, therefore, no doubt that the City Engineer exercises control or supervision over the public works
in question. Hence, the liability of the city to the petitioner under article 2198 of the Civil Code is clear.
THE MUNICIPALITY OF SAN JUAN, METRO MANILA, Petitioners,
vs.
THE HON. COURT OF APPEALS, et al, Respondent.

Under a "Contract For Water Service Connections"2 entered into by and between the Metropolitan
Waterworks and Sewerage System (MWSS) and Kwok Cheung as sole proprietor of K.C. Waterworks
System Construction (KC, for short), the former engaged the services of the latter to install water service
connections. Article 11 (Scope of Work), paragraph 2.01 of the agreement provides:
2.01 The CONTRACTOR agrees to install water service connections, transfer location of tapping to the
nearest main, undertake separation of service connection, change rusted connections, within the service
area of the MWSS specified in each job order covered by this Contract, from the water main up to the
installation of the verticals. Tapping of the service pipe connection and mounting of water meter shall be
undertaken exclusively or solely by the MWSS;
On 20 May 1988, KC was given a Job Order by the South Sector Office of MWSS to conduct and effect
excavations at the corner of M. Paterno and Santolan Road, San Juan, Metro Manila, a national road, for
the laying of water pipes and tapping of water to the respective houses of water concessionaires.
That same day, KC dispatched five (5) of its workers under Project Engineer Ernesto Battad, Jr. to
conduct the digging operations in the specified place. The workers installed four (4) barricades made up
of two-inch thick GI pipes welded together, 1.3 meters wide and 1.2 meters high, at the area where the
digging is to take place. The digging operations started at 9 oclock in the morning and ended at about 3
oclock in the afternoon. The workers dug a hole one (1) meter wide and 1.5 meters deep, after which
they refilled the excavated portion of the road with the same gravel and stone excavated from the area. At
that time, only of the job was finished in view of the fact that the workers were still required to reexcavate that particular portion for the tapping of pipes for the water connections to the concessionaires.
Meanwhile, between 10 oclock and 11 oclock in the evening of 31 May 1988, Priscilla Chan was driving
her Toyota Crown car with Plate No. PDK 991 at a speed of thirty (30) kilometers per hour on the right
side of Santolan Road towards the direction of Pinaglabanan, San Juan, Metro Manila. With her on board
the car and seated on the right front seat was Assistant City Prosecutor Laura Biglang-awa. The road was
flooded as it was then raining hard. Suddenly, the left front wheel of the car fell on a manhole where the
workers of KC had earlier made excavations. As a result, the humerus on the right arm of Prosecutor
Biglang-awa was fractured. Thereupon, Priscilla Chan contacted Biglang-awas husband who immediately
arrived at the scene and brought his wife to the Cardinal Santos Hospital.
Dispatched to the scene of the accident to conduct an investigation thereof, Pfc. Felix Ramos of the
Traffic Division of the San Juan Police Station, upon arriving thereat, saw Priscilla Chans car already
extracted from the manhole and placed beside the excavated portion of the road. According to this police
officer, he did not see any barricades at the scene when he arrived less than an hour later. A Traffic
Accident Investigation Report3 was thereafter prepared and signed by Pfc. Ramos.
At the hospital, the attending physician, after having performed a close reduction and application of
abduction splint on Biglang-awa, placed a plastic cast on her right arm. Barring complications, the injury
she suffered was expected to heal in four (4) to six (6) weeks, although she must revisit her doctor from
time to time for check-up and rehabilitation. After some time, the plastic cast was removed. Biglang-awa
sustained no deformity and no tenderness of the area of the injury but she could not sleep on her right
side because she still felt pain in that portion of her body. A Medical Certificate4 on her injuries was issued
by Dr. Antonio Rivera.
Consequent to the foregoing incident, Biglang-awa filed before the Regional Trial Court at Pasig, Metro
Manila a complaint for damages against MWSS, the Municipality of San Juan and a number of San Juan
municipal officials.
Later, Biglang-awa amended her complaint twice. In her second amended complaint, she included KC as
one of the defendants.

With no similar recourse having been taken by the other parties, the Court shall limit itself to the liability or
non-liability of petitioner municipality for the injury sustained by Biglang-awa.
In denying liability for the subject accident, petitioner essentially anchored its defense on two provisions of
laws, namely: (1) Section 149, [1][z] of Batas Pambansa Blg. 337, otherwise known as the Local
Government Code of 1983; and (2) Section 8, Ordinance 82-01, of the Metropolitan Manila Commission.
Petitioner maintains that under Section 149, [1][z] of the Local Government Code, 6 it is obliged to provide
for the construction, improvement, repair and maintenance of only municipal streets, avenues, alleys,
sidewalks, bridges, parks and other public places. Ergo, since Santolan Road is concededly a national
and not a municipal road, it cannot be held liable for the injuries suffered by Biglang-awa on account of
the accident that occurred on said road.
Additionally, petitioner contends that under Section 8, Ordinance No. 82-01, of the Metropolitan Manila
Commission, which reads:
In the event of death, injury and/or damages caused by the non-completion of such works and/or failure of
one undertaking the work to adopt the required precautionary measures for the protection of the general
public or violation of any of the terms or conditions of the permit, the permittee/excavator shall assume
fully all liabilities for such death, injury or damage arising therefrom. For this purpose, the
excavator/permittee shall purchase insurance coverage to answer for third party liability, only the Project
Engineer of KC and MWSS can be held liable for the same accident.
The petition must have to be denied.
Jurisprudence7 teaches that for liability to arise under Article 21898 of the Civil Code, ownership of the
roads, streets, bridges, public buildings and other public works, is not a controlling factor, it being
sufficient that a province, city or municipality has control or supervision thereof. This, we made clear
in City of Manila vs. Teotico, et al9:
At any rate, under Article 2189 of the Civil Code, it is not necessary for the liability therein established to
attach that the defective roads or streets belong to the province, city or municipality from which
responsibility is exacted. What said article requires is that the province, city or municipality have either
"control or supervision" over said street or road. x x x
It is argued, however, that under Section 149, [1][z] of the Local Government Code, petitioner has control
or supervision only over municipal and not national roads, like Santolan Road.
Sadly, petitioner failed to take note of the other provisions of Section 149 of the same Code, more
particularly the following:
Section 149. Powers and Duties. (1) The sangguniang bayan shall:
(bb) Regulate the drilling and excavation of the ground for the laying of gas, water, sewer, and other
pipes; the building and repair of tunnels, sewers, drains and other similar structures; erecting of poles and
the use of crosswalks, curbs and gutters therein, and adopt measures to ensure public safety against
open canals, manholes, live wires and other similar hazards to life and property, and provide just
compensation or relief for persons suffering from them; (Underscoring supplied)
Clear it is from the above that the Municipality of San Juan can "regulate" the drilling and excavation of
the ground for the laying of gas, water, sewer, and other pipes within its territorial jurisdiction.

Doubtless, the term "regulate" found in the aforequoted provision of Section 149 can only mean that
petitioner municipality exercises the power of control, or, at the very least, supervision over all
excavations for the laying of gas, water, sewer and other pipes within its territory.
We must emphasize that under paragraph [1][bb] of Section 149, supra, of the Local Government Code,
the phrases "regulate the drilling and excavation of the ground for the laying of gas, water, sewer, and
other pipes", and "adopt measures to ensure public safety against open canals, manholes, live wires and
other similar hazards to life and property", are not modified by the term "municipal road". And neither can
it be fairly inferred from the same provision of Section 149 that petitioners power of regulation vis-vis the activities therein mentioned applies only in cases where such activities are to be performed
in municipal roads. To our mind, the municipalitys liability for injuries caused by its failure to regulate the
drilling and excavation of the ground for the laying of gas, water, sewer, and other pipes, attaches
regardless of whether the drilling or excavation is made on a national or municipal road, for as long as the
same is within its territorial jurisdiction.
We are thus in full accord with the following pronouncements of the appellate court in the decision under
review:
While it may be true that the Department of Public Works and Highways may have issued the requisite
permit to the Appellee KC and/or concessionaires for the excavation on said road, the Appellant San Juan
is not thereby relieved of its liability to [Biglang-awa] for its own gross negligence. Indeed, Evangeline
Alfonso, the witness for the Appellant San Juan unabashedly [sic] admitted, when she testified in the
Court a quo, that even if the Department of Public Works and Highways failed to effect the requisite
refilling, the Appellant San Juan was mandated to undertake the necessary precautionary measures to
avert accidents and insure the safety of pedestrians and commuters:
xxx
The [petitioner] cannot validly shirk from its obligation to maintain and insure the safe condition of the road
merely because the permit for the excavation may have been issued by a government entity or unit other
than the Appellant San Juan or that the excavation may have been done by a contractor under contract
with a public entity like the Appellee MWSS.
Neither is the [petitioner] relieved of liability based on its purported lack of knowledge of the excavation
and the condition of the road during the period from May 20, 1988 up to May 30, 1988 when the accident
occurred. It must be borne in mind that the obligation of the [petitioner] to maintain the safe condition of
the road within its territory is a continuing one which is not suspended while a street is being repaired
(Corpus Juris Secundum, MunicipalCorporations, page 120). Knowledge of the condition of the road and
the defects and/or obstructions on the road may be actual or constructive. It is enough that the authorities
should have known of the aforesaid circumstances in the exercise of ordinary care
(City of Louiseville versus Harris, 180 Southwestern Reporter. page 65). In the present recourse,
Santolan Road and the Greenhills area coming from Ortigas Avenue going to Pinaglabanan, San Juan,
Metro Manila is a busy thoroughfare. The gaping hole in the middle of the road of Santolan Road could
not have been missed by the authorities concerned. After all, the [petitioner] San Juan is mandated to
effect a constant and unabated monitoring of the conditions of the roads to insure the safety of motorists.
Persuasive authority has it that:
It is the duty of the municipal authorities to exercise an active vigilance over the streets; to see that they
are kept in a reasonably safe condition for public travel. They cannot fold their arms and shut their eyes
and say they have no notice.
Nor can petitioner seek shelter on Section 8 of Ordinance 82-01 of the Metropolitan Manila Commission.

Concededly, Section 8 of the Ordinance makes the permittee/excavator liable for death, injury and/or
damages caused by the non-completion of works and/or failure of the one undertaking the works to adopt
the required precautionary measures for the protection of the general public. Significantly, however,
nowhere can it be found in said Ordinance any provision exempting municipalities in Metro Manila from
liabilities caused by their own negligent acts. Afortiori, nothing prevents this Court from applying other
relevant laws concerning petitioners liability for the injuries sustained by Biglang-awa on that fateful rainy
evening of 31 May 1988.
THE MUNICIPALITY OF PAOAY, ILOCOS NORTE, petitioner,
vs.
TEODORO MANAOIS and EULOGIO F. DE GUZMAN, respondents.
Teodoro Manaois having obtained a judgment against the municipality of Paoay, Ilocos Norte in civil case
No. 8026 of the Court of First Instance of Pangasinan, Judge De Guzman of said province issued a writ of
execution against the defendant municipality. In compliance with said writ the Provincial Sheriff of Ilocos
Norte levied upon and attached the following properties:
(1) The amount of One thousand seven hundred twelve pesos and one centavo
(P1,712.01) in the Municipal Treasury of Paoay, Ilocos Norte, representing the rental paid
by Mr. Demetrio Tabije of a fishery lot belonging to the defendant municipality;
(2) About forty fishery lots leased to thirty-five different persons by the Municipality.
On July 26, 1949, the Provincial Fiscal of Ilocos Norte in representation of the municipality of Paoay, filed
a petition in the Court of First Instance of Pangasinan asking for the dissolution of that attachment of levy
of the properties above-mentioned.
The petitioner goes on the theory that the properties attached by the sheriff for purposes of execution are
not subject to levy because they are properties for public use. It is therefore necessary to ascertain the
nature and status back a few years, specifically, to the year 1937.
It seems that the municipality of Paoay is and for many years has been operating or rather leasing fishery
lots on municipal waters. These waters have been parceled out in lots, either singly or in groups and let
out or rented after public bidding to the highest bidders, ordinarily, for a year, but sometimes, for a longer
period of time. On April 4, 1937, the municipality of Paoay entered into a contract with one Francisco V.
Duque for the lease of fishery lots 3, 4, 5, 6, 7, and 8 at a rental of P1,218.79 per annum, for a period of
four years from January 1, 1937 to December 31, 1940. In 1938, the municipal council of Paoay approved
a resolution confiscating said fishery lots on the ground that Duque had failed to comply with the terms of
the lease contract. Thereafter, the municipality advertised the lease of its fishery lots for public bidding,
including the lots above mentioned. Teodoro Manaois being the highest bidder for said lots 3 to 8, was
awarded the lease thereof as per resolution of the municipality council of Paoay of December 1, 1938. On
January 1, 1939, Manaois paid P2,025 as rental for the said lots for the year 1939. However, when
Manaois and his men tried to enter the property in order to exercise his rights as lessee and to catch fish,
particularly bagos fry, he found therein Duque and his men who claimed that he (Duque) was still the
lessee, and despite the appeal of Manaois to the Municipality of Paoay to put him in possession and the
efforts of the municipality to oust Duque, the latter succeeded in continuing in his possession and keeping
Manaois and his men out. Manaois brought an action against the Municipality of Paoay to recover not
only the sum paid by him for the lease of the fishery lots but also damages. He obtained judgment in his
favor in June, 1940 in the Court of First Instance of Pangasinan, civil case No. 8026, which decision has
long become final. The writ of execution and the attachment and levy mentioned at the beginning of this
decision were issued and effected to enforce the judgment just mentioned.
There can be no question that properties for public use held by municipal corporation are not subject to
levy and execution. The authorities are unanimous on this point. This Court in the case of Viuda de

Tantoco vs. Municipal Council of Iloilo (49 Phil., 52) after citing Manresa, the works of McQuillin and Dillon
on Municipal Corporations, and Corpus Juris, held that properties for public use like trucks used for
sprinkling the streets, police patrol wagons, police stations, public markets, together with the land on
which they stand are exempt from execution. Even public revenues of municipal corporations destined for
the expenses of the municipality are also exempt from the execution. The reason behind this exemption
extended to properties for public use, and public municipal revenues is that they are held in trust for the
people, intended and used for the accomplishment of the purposes for which municipal corporations are
created, and that to subject said properties and public funds to execution would materially impede, even
defeat and in some instances destroy said purpose.
Property however, which is patrimonial and which is held by municipality in its proprietary capacity is
treated by great weight of authority as the private asset of the town and may be levied upon and sold
under an ordinary execution. The same rule applies to municipal funds derived from patrimonial
properties, for instance, it has been held that shares of stocks held by municipal corporations are subject
to execution. If this is true, with more reason should income or revenue coming from these shares of
stock, in the form of interest or dividends, be subject to execution. (McQuillin on Municipal Corporations,
Vol. 3, par. 1160.)
The fishery or municipal waters of the town of Paoay, Ilocos Norte, which had been parceled out or
divided into lots and later let out to private persons for fishing purposes at an annual rental are clearly not
subject to execution. In the first place, they do not belong to the municipality. They may well be regarded
as property of State. What the municipality of Paoay hold is merely what may be considered the usufruct
or the right to use said municipal waters, granted to it by section 2321 of the Revised Administrative Code
which reads as follows:
1. SEC. 2321. Grant of fishery. A municipal council shall have authority, for purposes
of profit, to grant the exclusive privileges of fishery or right to conduct a fish-breeding
ground within any definite portion, or area, of the municipal waters.
"Municipal waters", as herein used, include not only streams, lakes, and tidal waters,
include within the municipality, not being the subject of private ownership, but also marine
waters include between two lines drawn perpendicular to the general coast line from
points where the boundary lines of the municipality touch the sea at high tide, and third
line parallel with the general coast line and distant from it three marine leagues.
Where two municipalities are so situated on opposite shores that there is less than six
marine leagues of marine waters between them the third line shall be a line equally
distant from the opposite shores of the respective municipalities.
Now, is this particular usufruct of the municipality of Paoay over its municipal waters, subject to execution
to enforce a judgment against the town? We are not prepared to answer this question in the affirmative
because there are powerful reasons against its propriety and legality. In the first place, it is not a usufruct
based on or derived from an inherent right of the town. It is based merely on a grant, more or less
temporary, made by the Legislature. Take the right of fishery over the sea or marine waters bordering a
certain municipality. These marine waters are ordinarily for public use, open to navigation and fishing by
the people. The Legislature thru section 2321 of the Administrative Code, as already stated, saw fit to
grant the usufruct of said marine waters for fishery purpose, to the towns bordering said waters. Said
towns have no visited right over said marine waters. The Legislature, for reasons it may deem valid or as
a matter of public policy, may at any time, repeal or modify said section 2321 and revoke this grant to
coastal towns and open these marine waters to the public. Or the Legislature may grant the usufruct or
right of fishery to the provinces concerned so that said provinces may operate or administer them by
leasing them to private parties.

All this only goes to prove that the municipality of Paoay is not holding this usufruct or right of fishery in a
permanent or absolute manner so as to enable it to dispose of it or to allow it to be taken away from it as
its property through execution.
Another reason against subjecting this usufruct or right of fishery over municipal waters, to execution, is
that, if this were to be allowed and this right sold on execution, the buyer would immediately step into the
shoes of the judgment-debtor municipality. Such buyer presumably buys only the right of the municipality.
He does not buy the fishery itself nor the municipal waters because that belongs to the State. All that the
buyer might do would be to let out or rent to private individuals the fishery rights over the lots into which
the municipal waters had been parceled out or divided, and that is, after public bidding. This, he must do
because that is the only right granted to the municipality by the Legislature, a right to be exercised in the
manner provided by law, namely, to rent said fishery lots after public bidding. (See sec. 2323 of the
Administrative Code in connection with sec. 2319 of the same Code.) Then, we shall have a situation
rather anomalous to be sure, of a private individual conducting public bidding, renting to the highest
bidders fishery lots over municipal waters which are property of the State, and appropriating the results to
his own private use. The impropriety, if not illegality, of such a contingency is readily apparent. But that is
not all. The situation imagined implies the deprivation of the municipal corporation of a source of a
substantial income, expressly provided by law. Because of all this, we hold that the right or usufruct of the
town of Paoay over its municipal waters, particularly, the forty odd fishery lots included in the attachment
by the Sheriff, is not subject to execution.
But we hold that the revenue or income coming from the renting of these fishery lots is certainly subject to
execution. It may be profitable, if not necessary, to distinguish this kind of revenue from that derived from
taxes, municipal licenses and market fees are provided for and imposed by the law, they are intended
primarily and exclusively for the purpose of financing the governmental activities and functions of
municipal corporations. In fact, the real estate taxes collected by a municipality do not all go to it. A portion
thereof goes to the province, in the proportion provided for by law. For the same reason, municipal
markets are established not only to provide a place where the people may sell and buy commodities but
also to provide public revenues for the municipality. To many towns, market fees constitute the bulk of
their assets and incomes. These revenues are fixed and definite, so much so that the annual
appropriations for the expenses of the municipalities are based on these revenues. Not so with the
income derived from fisheries. In the first place, the usufruct over municipal waters was granted by the
Legislature merely to help or bolster up the economy of municipal government. There are many towns in
the Philippines, specially in the interior, which do not have municipal waters for fishery purpose and yet
without much source of revenue, they can function, which goes to prove that this kind of revenue is not
indispensable for the performance of governmental functions. In the second place, the amount of this
income is far from definite or fixed. It depends upon the amounts which prospective bidders or lessees
are willing to pay. If fishing on these marine water, lakes and rivers in the municipality is good, the bids
would be high and the income would be substantial. If the fish in these waters is depleted or, if for some
reasons or another, fishing is not profitable, then the income would be greatly reduced. In other words, to
many municipalities engaged in this business of letting out municipal waters for fishing purposes, it is a
sort of sideline, so that even without it the municipality may still continue functioning and perform its
essential duties as such municipal corporations.
We call this activity of municipalities in renting municipal waters for fishing purposes as a business for the
reasons that the law itself (Sec. 2321, Administrative Code already mentioned and quoted) allowed said
municipalities to engage in it for profit. And it is but just that a town so engaged should pay and liquidate
obligations contracted in connection with said fishing business, with the income derived therefrom.
In conclusion, we hold that the fishery lots numbering about forty in the municipality of Paoay, mentioned
at the beginning of this decision are not subject to execution. For this reason, the levy and attachment
made by the Provincial Sheriff of Ilocos Norte of theses fishery lots is void and the order of the Court of
First Instance of Pangasinan insofar as it failed to dissolve the attachment made on these lots is reversed.
However, the amount of P1,712.01 in the municipal treasury of Paoay representing the rental paid by
Demetrio Tabije on fishery lots let out by the municipality of Paoay is a proper subject of levy, and the

attachment made thereon by the Sheriff is valid. We may add that other amounts coming or due from
lessees of the forty odd fishery lots leased by the municipality to different persons may also be attached
or garnished to satisfy the judgement against the municipality of Paoay.
MUNICIPALITY OF MAKATI, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, et al, respondents.
The present petition for review is an off-shoot of expropriation proceedings initiated by petitioner
Municipality of Makati against private respondent Admiral Finance Creditors Consortium, Inc., Home
Building System & Realty Corporation and one Arceli P. Jo, involving a parcel of land and improvements
thereon located at Mayapis St., San Antonio Village, Makati and registered in the name of Arceli P. Jo
under TCT No. S-5499.
It appears that the action for eminent domain was filed on May 20, 1986, docketed as Civil Case No.
13699. Attached to petitioner's complaint was a certification that a bank account (Account No. S/A 265537154-3) had been opened with the PNB Buendia Branch under petitioner's name containing the sum of
P417,510.00, made pursuant to the provisions of Pres. Decree No. 42. After due hearing where the
parties presented their respective appraisal reports regarding the value of the property, respondent RTC
judge rendered a decision on June 4, 1987, fixing the appraised value of the property at P5,291,666.00,
and ordering petitioner to pay this amount minus the advanced payment of P338,160.00 which was earlier
released to private respondent.
After this decision became final and executory, private respondent moved for the issuance of a writ of
execution. This motion was granted by respondent RTC judge. After issuance of the writ of execution, a
Notice of Garnishment dated January 14, 1988 was served by respondent sheriff Silvino R. Pastrana
upon the manager of the PNB Buendia Branch. However, respondent sheriff was informed that a "hold
code" was placed on the account of petitioner. As a result of this, private respondent filed a motion dated
January 27, 1988 praying that an order be issued directing the bank to deliver to respondent sheriff the
amount equivalent to the unpaid balance due under the RTC decision dated June 4, 1987.
Petitioner filed a motion to lift the garnishment, on the ground that the manner of payment of the
expropriation amount should be done in installments which the respondent RTC judge failed to state in his
decision. Private respondent filed its opposition to the motion.
Pending resolution of the above motions, petitioner filed on July 20, 1988 a "Manifestation" informing the
court that private respondent was no longer the true and lawful owner of the subject property because a
new title over the property had been registered in the name of Philippine Savings Bank, Inc. (PSB)
Respondent RTC judge issued an order requiring PSB to make available the documents pertaining to its
transactions over the subject property, and the PNB Buendia Branch to reveal the amount in petitioner's
account which was garnished by respondent sheriff. In compliance with this order, PSB filed a
manifestation informing the court that it had consolidated its ownership over the property as
mortgagee/purchaser at an extrajudicial foreclosure sale held on April 20, 1987. After several
conferences, PSB and private respondent entered into a compromise agreement whereby they agreed to
divide between themselves the compensation due from the expropriation proceedings.
Petitioner not only reiterates the arguments adduced in its petition before the Court of Appeals, but also
alleges for the first time that it has actually two accounts with the PNB Buendia Branch, to wit:
xxx xxx xxx
(1) Account No. S/A 265-537154-3 exclusively for the expropriation of the
subject property, with an outstanding balance of P99,743.94.

(2) Account No. S/A 263-530850-7 for statutory obligations and other
purposes of the municipal government, with a balance of P170,098,421.72, as of
July 12, 1989.
Because the petitioner has belatedly alleged only in this Court the existence of two bank accounts, it may
fairly be asked whether the second account was opened only for the purpose of undermining the legal
basis of the assailed orders of respondent RTC judge and the decision of the Court of Appeals, and
strengthening its reliance on the doctrine that public funds are exempted from garnishment or execution
as enunciated in Republic v. Palacio [supra.] At any rate, the Court will give petitioner the benefit of the
doubt, and proceed to resolve the principal issues presented based on the factual circumstances thus
alleged by petitioner.
Admitting that its PNB Account No. S/A 265-537154-3 was specifically opened for expropriation
proceedings it had initiated over the subject property, petitioner poses no objection to the garnishment or
the levy under execution of the funds deposited therein amounting to P99,743.94. However, it is
petitioner's main contention that inasmuch as the assailed orders of respondent RTC judge involved the
net amount of P4,965,506.45, the funds garnished by respondent sheriff in excess of P99,743.94, which
are public funds earmarked for the municipal government's other statutory obligations, are exempted from
execution without the proper appropriation required under the law.
There is merit in this contention. The funds deposited in the second PNB Account No. S/A 263-530850-7
are public funds of the municipal government. In this jurisdiction, well-settled is the rule that public funds
are not subject to levy and execution, unless otherwise provided for by statute. More particularly, the
properties of a municipality, whether real or personal, which are necessary for public use cannot be
attached and sold at execution sale to satisfy a money judgment against the municipality. Municipal
revenues derived from taxes, licenses and market fees, and which are intended primarily and exclusively
for the purpose of financing the governmental activities and functions of the municipality, are exempt from
execution. The foregoing rule finds application in the case at bar. Absent a showing that the municipal
council of Makati has passed an ordinance appropriating from its public funds an amount corresponding
to the balance due under the RTC decision dated June 4, 1987, less the sum of P99,743.94 deposited in
Account No. S/A 265-537154-3, no levy under execution may be validly effected on the public funds of
petitioner deposited in Account No. S/A 263-530850-7.
Nevertheless, this is not to say that private respondent and PSB are left with no legal recourse. Where a
municipality fails or refuses, without justifiable reason, to effect payment of a final money judgment
rendered against it, the claimant may avail of the remedy of mandamus in order to compel the enactment
and approval of the necessary appropriation ordinance, and the corresponding disbursement of municipal
funds therefor.
In the case at bar, the validity of the RTC decision dated June 4, 1987 is not disputed by petitioner. No
appeal was taken therefrom. For three years now, petitioner has enjoyed possession and use of the
subject property notwithstanding its inexcusable failure to comply with its legal obligation to pay just
compensation. Petitioner has benefited from its possession of the property since the same has been the
site of Makati West High School since the school year 1986-1987. This Court will not condone petitioner's
blatant refusal to settle its legal obligation arising from expropriation proceedings it had in fact initiated. It
cannot be over-emphasized that, within the context of the State's inherent power of eminent domain,
. . . [j]ust compensation means not only the correct determination of the amount
to be paid to the owner of the land but also the payment of the land within a
reasonable time from its taking. Without prompt payment, compensation cannot
be considered "just" for the property owner is made to suffer the consequence of
being immediately deprived of his land while being made to wait for a decade or
more before actually receiving the amount necessary to cope with his loss.

The State's power of eminent domain should be exercised within the bounds of fair play and justice. In the
case at bar, considering that valuable property has been taken, the compensation to be paid fixed and the
municipality is in full possession and utilizing the property for public purpose, for three (3) years, the Court
finds that the municipality has had more than reasonable time to pay full compensation.
WHEREFORE, the Court Resolved to ORDER petitioner Municipality of Makati to immediately pay
Philippine Savings Bank, Inc. and private respondent the amount of P4,953,506.45. Petitioner is hereby
required to submit to this Court a report of its compliance with the foregoing order within a non-extendible
period of SIXTY (60) DAYS from the date of receipt of this resolution.
Section 24. Liability for Damages. - Local government units and their officials are not exempt from liability
for death or injury to persons or damage to property.
Article 2180. The obligation imposed by article 2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom one is responsible.
The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by
the minor children who live in their company.
Guardians are liable for damages caused by the minors or incapacitated persons who are under their
authority and live in their company.
The owners and managers of an establishment or enterprise are likewise responsible for damages
caused by their employees in the service of the branches in which the latter are employed or on the
occasion of their functions.
Employers shall be liable for the damages caused by their employees and household helpers acting
within the scope of their assigned tasks, even though the former are not engaged in any business or
industry.
The State is responsible in like manner when it acts through a special agent; but not when the damage
has been caused by the official to whom the task done properly pertains, in which case what is provided
in article 2176 shall be applicable.
Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their
pupils and students or apprentices, so long as they remain in their custody.
The responsibility treated of in this article shall cease when the persons herein mentioned prove that they
observed all the diligence of a good father of a family to prevent damage. (1903a)
E. MERRITT, plaintiff-appellant,
vs.
GOVERNMENT OF THE PHILIPPINE ISLANDS, defendant-appellant.
It is a fact not disputed by counsel for the defendant that when the plaintiff, riding on a
motorcycle, was going toward the western part of Calle Padre Faura, passing along the
west side thereof at a speed of ten to twelve miles an hour, upon crossing Taft Avenue
and when he was ten feet from the southwestern intersection of said streets, the General
Hospital ambulance, upon reaching said avenue, instead of turning toward the south,
after passing the center thereof, so that it would be on the left side of said avenue, as is
prescribed by the ordinance and the Motor Vehicle Act, turned suddenly and
unexpectedly and long before reaching the center of the street, into the right side of Taft
Avenue, without having sounded any whistle or horn, by which movement it struck the

plaintiff, who was already six feet from the southwestern point or from the post place
there.
By reason of the resulting collision, the plaintiff was so severely injured that, according to
Dr. Saleeby, who examined him on the very same day that he was taken to the General
Hospital, he was suffering from a depression in the left parietal region, a would in the
same place and in the back part of his head, while blood issued from his nose and he
was entirely unconscious.
As a consequence of the loss the plaintiff suffered in the efficiency of his work as a
contractor, he had to dissolved the partnership he had formed with the engineer. Wilson,
because he was incapacitated from making mathematical calculations on account of the
condition of his leg and of his mental faculties, and he had to give up a contract he had
for the construction of the Uy Chaco building."
We may say at the outset that we are in full accord with the trial court to the effect that the collision
between the plaintiff's motorcycle and the ambulance of the General Hospital was due solely to the
negligence of the chauffeur.
As the negligence which caused the collision is a tort committed by an agent or employee of the
Government, the inquiry at once arises whether the Government is legally-liable for the damages resulting
therefrom.
Act No. 2457, effective February 3, 1915, reads:
An Act authorizing E. Merritt to bring suit against the Government of the Philippine
Islands and authorizing the Attorney-General of said Islands to appear in said suit.
Whereas a claim has been filed against the Government of the Philippine Islands by Mr.
E. Merritt, of Manila, for damages resulting from a collision between his motorcycle and
the ambulance of the General Hospital on March twenty-fifth, nineteen hundred and
thirteen;
Whereas it is not known who is responsible for the accident nor is it possible to determine
the amount of damages, if any, to which the claimant is entitled; and
Whereas the Director of Public Works and the Attorney-General recommended that an
Act be passed by the Legislature authorizing Mr. E. Merritt to bring suit in the courts
against the Government, in order that said questions may be decided: Now, therefore,
By authority of the United States, be it enacted by the Philippine Legislature, that:
SECTION 1. E. Merritt is hereby authorized to bring suit in the Court of First Instance of
the city of Manila against the Government of the Philippine Islands in order to fix the
responsibility for the collision between his motorcycle and the ambulance of the General
Hospital, and to determine the amount of the damages, if any, to which Mr. E. Merritt is
entitled on account of said collision, and the Attorney-General of the Philippine Islands is
hereby authorized and directed to appear at the trial on the behalf of the Government of
said Islands, to defendant said Government at the same.
SEC. 2. This Act shall take effect on its passage.
Enacted, February 3, 1915.

Did the defendant, in enacting the above quoted Act, simply waive its immunity from suit or did it also
concede its liability to the plaintiff? If only the former, then it cannot be held that the Act created any new
cause of action in favor of the plaintiff or extended the defendant's liability to any case not previously
recognized.
All admit that the Insular Government (the defendant) cannot be sued by an individual without its consent.
It is also admitted that the instant case is one against the Government. As the consent of the Government
to be sued by the plaintiff was entirely voluntary on its part, it is our duty to look carefully into the terms of
the consent, and render judgment accordingly.
The plaintiff was authorized to bring this action against the Government "in order to fix the responsibility
for the collision between his motorcycle and the ambulance of the General Hospital and to determine the
amount of the damages, if any, to which Mr. E. Merritt is entitled on account of said collision, . . . ." These
were the two questions submitted to the court for determination. The Act was passed "in order that said
questions may be decided." We have "decided" that the accident was due solely to the negligence of the
chauffeur, who was at the time an employee of the defendant, and we have also fixed the amount of
damages sustained by the plaintiff as a result of the collision. Does the Act authorize us to hold that the
Government is legally liable for that amount? If not, we must look elsewhere for such authority, if it exists.
It being quite clear that Act No. 2457 does not operate to extend the Government's liability to any cause
not previously recognized, we will now examine the substantive law touching the defendant's liability for
the negligent acts of its officers, agents, and employees. Paragraph 5 of article 1903 of the Civil Code
reads:
The state is liable in this sense when it acts through a special agent, but not when the
damage should have been caused by the official to whom properly it pertained to do the
act performed, in which case the provisions of the preceding article shall be applicable.
That the responsibility of the state is limited by article 1903 to the case wherein it acts through a special
agent (and a special agent, in the sense in which these words are employed, is one who receives a
definite and fixed order or commission, foreign to the exercise of the duties of his office if he is a special
official) so that in representation of the state and being bound to act as an agent thereof, he executes the
trust confided to him. This concept does not apply to any executive agent who is an employee of the
acting administration and who on his own responsibility performs the functions which are inherent in and
naturally pertain to his office and which are regulated by law and the regulations."
It is, therefore, evidence that the State (the Government of the Philippine Islands) is only liable, according
to the above quoted decisions of the Supreme Court of Spain, for the acts of its agents, officers and
employees when they act as special agents within the meaning of paragraph 5 of article 1903, supra, and
that the chauffeur of the ambulance of the General Hospital was not such an agent.
MUNICIPALITY OF SAN FERNANDO, LA UNION, petitioner
vs.
HON. JUDGE ROMEO N. FIRME, et al, respondents.
Petitioner Municipality of San Fernando, La Union is a municipal corporation existing under and in
accordance with the laws of the Republic of the Philippines. Respondent Honorable Judge Romeo N.
Firme is impleaded in his official capacity as the presiding judge of the Court of First Instance of La Union,
Branch IV, Bauang, La Union. While private respondents Juana Rimando-Bania, Laureano Bania, Jr.,
Sor Marietta Bania, Montano Bania, Orja Bania and Lydia R. Bania are heirs of the deceased
Laureano Bania Sr. and plaintiffs in Civil Case No. 107-Bg before the aforesaid court.
At about 7 o'clock in the morning of December 16, 1965, a collision occurred involving a passenger
jeepney driven by Bernardo Balagot and owned by the Estate of Macario Nieveras, a gravel and sand

truck driven by Jose Manandeg and owned by Tanquilino Velasquez and a dump truck of the Municipality
of San Fernando, La Union and driven by Alfredo Bislig. Due to the impact, several passengers of the
jeepney including Laureano Bania Sr. died as a result of the injuries they sustained and four (4) others
suffered varying degrees of physical injuries.
On December 11, 1966, the private respondents instituted a compliant for damages against the Estate of
Macario Nieveras and Bernardo Balagot, owner and driver, respectively, of the passenger jeepney, which
was docketed Civil Case No. 2183 in the Court of First Instance of La Union, Branch I, San Fernando, La
Union. However, the aforesaid defendants filed a Third Party Complaint against the petitioner and the
driver of a dump truck of petitioner.
The controversy boils down to the main issue of whether or not the respondent court committed grave
abuse of discretion when it deferred and failed to resolve the defense of non-suability of the State
amounting to lack of jurisdiction in a motion to dismiss.
The respondent judge did not commit grave abuse of discretion when in the exercise of its judgment it
arbitrarily failed to resolve the vital issue of non-suability of the State in the guise of the municipality.
However, said judge acted in excess of his jurisdiction when in his decision dated October 10, 1979 he
held the municipality liable for the quasi-delict committed by its regular employee.
The doctrine of non-suability of the State is expressly provided for in Article XVI, Section 3 of the
Constitution, to wit: "the State may not be sued without its consent."
Stated in simple parlance, the general rule is that the State may not be sued except when it gives consent
to be sued. Consent takes the form of express or implied consent.
Express consent may be embodied in a general law or a special law. The standing consent of the State to
be sued in case of money claims involving liability arising from contracts is found in Act No. 3083. A
special law may be passed to enable a person to sue the government for an alleged quasi-delict, as in
Merritt v. Government of the Philippine Islands (34 Phil 311). (see United States of America v. Guinto,
G.R. No. 76607, February 26, 1990, 182 SCRA 644, 654.)
Consent is implied when the government enters into business contracts, thereby descending to the level
of the other contracting party, and also when the State files a complaint, thus opening itself to a
counterclaim. (Ibid)
Municipal corporations, for example, like provinces and cities, are agencies of the State when they are
engaged in governmental functions and therefore should enjoy the sovereign immunity from suit.
Nevertheless, they are subject to suit even in the performance of such functions because their charter
provided that they can sue and be sued. (Cruz,Philippine Political Law, 1987 Edition, p. 39)
A distinction should first be made between suability and liability. "Suability depends on the consent of the
state to be sued, liability on the applicable law and the established facts. The circumstance that a state is
suable does not necessarily mean that it is liable; on the other hand, it can never be held liable if it does
not first consent to be sued. Liability is not conceded by the mere fact that the state has allowed itself to
be sued. When the state does waive its sovereign immunity, it is only giving the plaintiff the chance to
prove, if it can, that the defendant is liable." (United States of America vs. Guinto, supra, p. 659-660)
Anent the issue of whether or not the municipality is liable for the torts committed by its employee, the test
of liability of the municipality depends on whether or not the driver, acting in behalf of the municipality, is
performing governmental or proprietary functions. As emphasized in the case of Torio vs. Fontanilla (G. R.
No. L-29993, October 23, 1978. 85 SCRA 599, 606), the distinction of powers becomes important for
purposes of determining the liability of the municipality for the acts of its agents which result in an injury to
third persons.

It has already been remarked that municipal corporations are suable because their charters grant them
the competence to sue and be sued. Nevertheless, they are generally not liable for torts committed by
them in the discharge of governmental functions and can be held answerable only if it can be shown that
they were acting in a proprietary capacity. In permitting such entities to be sued, the State merely gives
the claimant the right to show that the defendant was not acting in its governmental capacity when the
injury was committed or that the case comes under the exceptions recognized by law. Failing this, the
claimant cannot recover. (Cruz, supra, p. 44.)
In the case at bar, the driver of the dump truck of the municipality insists that "he was on his way to the
Naguilian river to get a load of sand and gravel for the repair of San Fernando's municipal streets." (Rollo,
p. 29.)
In the absence of any evidence to the contrary, the regularity of the performance of official duty is
presumed pursuant to Section 3(m) of Rule 131 of the Revised Rules of Court. Hence, We rule that the
driver of the dump truck was performing duties or tasks pertaining to his office.
We already stressed in the case of Palafox, et. al. vs. Province of Ilocos Norte, the District Engineer, and
the Provincial Treasurer (102 Phil 1186) that "the construction or maintenance of roads in which the truck
and the driver worked at the time of the accident are admittedly governmental activities."
After a careful examination of existing laws and jurisprudence, We arrive at the conclusion that the
municipality cannot be held liable for the torts committed by its regular employee, who was then engaged
in the discharge of governmental functions. Hence, the death of the passenger tragic and deplorable
though it may be imposed on the municipality no duty to pay monetary compensation.
MARCOS MENDOZA, plaintiff-appellee,
vs.
FRANCISCO DE LEON, ET AL., defendants-appellants.
This is an action for damages against the individual members of the municipal council of the municipality
of Villasis, Pangasinan, for the revocation of the lease of an exclusive ferry privilege duly awarded to the
plaintiff under the provisions of Act No. 1643 of the Philippine Commission. After use of a little more than
one year, the plaintiff was forcibly ejected under and pursuance of a resolution adopted by the herein
defendants, awarding a franchise for the same ferry to another person.
Municipalities of the Philippine Islands organized under the Municipal Code have both governmental and
corporate or business functions. Of the first class are the adoption of regulation against fire and disease,
preservation of the public peace, maintenance of municipal prisons, establishment of primary schools and
post-offices, etc. Of the latter class are the establishment of municipal waterworks for the use of the
inhabitants, the construction and maintenance of municipal slaughterhouses, markets, stables, bathing
establishments, wharves, ferries, and fisheries. Act No. 1643 provides that the use of each fishery, fishbreeding ground, ferry, stable, market, and slaughterhouse belonging to any municipality or township shall
be let to the highest bidder annually or for such longer period not exceeding five years as may have been
previously approved by the provincial board of the province in which the municipality or township is
located.
As is indicated in some of the above quoted cases, the municipality is not liable for the acts of its officers
or agents in the performance of its governmental functions. Governmental affairs do not lose their
governmental character by being delegated to the municipal governments. Nor of the municipality which,
for convenience the state allows the municipality to select, change their character. To preserve the peace,
protect the morals and health of the community and so on to administer government, whether it be done
by the central government itself or is shifted to a local organization. And the state being immune for
injuries suffered by private individuals in the administration of strictly governmental functions, like

immunity is enjoyed by the municipality in the performance of the same duties, unless it is expressly
made liable by statute.
From what has already been said, it should be clear that a municipality is not exempt from liability for the
negligent performance of its corporate or proprietary or business functions. In the administration of its
patrimonial property, it is to be regarded as a private corporation or individual so far as its liability to third
persons on contract or in tort is concerned. Its contracts, validly entered into, may be enforced and
damages may be collected from it for the torts of its officers or agents within the scope of their
employment in precisely the same manner and to the same extent as those of private corporations or
individuals.
It often happens that the same agent or agency has both a governmental and a corporate character.
Such, for instance, are a municipal water system designed both for protection against fire (a
governmental function) and to supply water to the inhabitants for profit (a corporate function); a municipal
light plant both for lighting the streets (a governmental function) and for furnishing light to the inhabitants
at a profit (a corporate function); an agent who is at the same time a police officer and a caretaker of a
municipal toll bridge. It is, also, sometimes the case that considerable difficulty is experienced in
determining whether a particular municipal duty is governmental or corporate.
But questions such as these do not arise in the case at bar. Here is it clear that the leasing of a municipal
ferry to the highest bidder for a specified period of time is not a governmental but a corporate function.
Such a lease, when validly entered into, constitutes a contract with the lessee which the municipality is
bound to respect.
It seems clear, therefore, that under the provisions of Municipal Code and Act No. 1634, above referred
to, the plaintiff had a vested right to the exclusive operation of the ferry in question for the period of his
lease. Were the municipality a party to this action, it would be patent that a judgment for damages against
it for the rescission of the contract would be proper. This, be it said, is the usual method of exacting
damages, either ex contractu or ex delicto arising from the exercise of corporate powers of municipalities.
But the present action is against the members of the municipal council personally, and the question
arises: Are they liable? In administering the patrimonial property of municipalities, the municipal council
occupies, for most purposes, the position of a board of directors of a private corporation. In disposing of
the local public utilities, if the term may be used, such as the fishing and ferry rights, etc., they must
exercise considerable judgment. It required some considerable amount of business acumen to compel
performance on the part of lessees of these privileges in accordance with the terms of their leases and in
a manner which will not cause the property to deteriorate. Questions must continually arise which are not
expressly provided for in contracts and which must be settled, if possible, in a manner that will preserve
the just claims of the municipality. Indeed, it is not at all improbable that on occasion the councilors may
have reason to believe that a particular contract has been rescinded by the other party or has never been
legally entered into, in both of which cases, decisive steps must be taken to safeguard the interest of the
municipality. Thus, in Municipality of Moncada vs. Cajuigan (21 Phil. Rep., 184), the lessee of a municipal
fishery was evicted for failing to pay his quarterly rents. The municipal authorities rightly held that the
contract was rescinded but forcibly evicted the lessee instead of resorting to the courts. Hence, in an
action by the municipality against the lessee and his bondsmen to recover rent arrears, damages were
allowed the lessee on his counterclaim for the loss caused by the forcible eviction. Nevertheless, we do
not think the councilors could have been held personally liable for their error in resorting to forcible
eviction of the lessee. Theirs was an error of judgment, and honest mistake on their part as to the rights of
the municipality in the premises. We think the rule of personal liability should be with municipal councilors
in such matters as it is with the directors or managers of an ordinary private corporation.
In the case at bar, there is not a scintilla of evidence that there was any justifiable reason for forcibly
evicting the plaintiff from the ferry which he had leased. On the contrary, the defendant councilors
attempted to justify their action on the ground that the ferry which he was operating was not the one
leased to him; this, in spite of the fact that the vice-president had personally placed him in possession of it
more than a year before, and the fact that he had operated this ferry for over year, evidently with the

knowledge of the defendants. The evidence is so clear that the ferry of which the plaintiff was
dispossessed was the one which he leased that no reasonable man would entertain any doubt whatever
upon the question. Hence, we cannot say that in rescinding the contract with the plaintiff, thereby making
the municipality liable to an action for damages for no valid reason at all, the defendant councilors were
honestly acting for the interests of the municipality. We are, therefore, of the opinion that the defendants
are liable jointly and severally for the damages sustained by the plaintiff from the rescission of his contract
of lease of the ferry privilege in question.
LAUDENCIO TORIO, et al, petitioners,
vs.
ROSALINA FONTANILLA, et al, and THE HONORABLE COURT OF APPEALS,respondents.
On October 21, 1958, the Municipal Council of Malasiqui, Pangasinan, passed Resolution No. 159
whereby "it resolved to manage the 1959 Malasiqui town fiesta celebration on January 21, 22, and 23,
1959." Resolution No. 182 was also passed creating the "1959 Malasiqui 'Town Fiesta Executive
Committee" which in turn organized a sub-committee on entertainment and stage, with Jose Macaraeg as
Chairman. the council appropriated the amount of P100.00 for the construction of 2 stages, one for the
"zarzuela" and another for the cancionan. Jose Macaraeg supervised the construction of the stage and as
constructed the stage for the "zarzuela" was "5- meters by 8 meters in size, had a wooden floor high at
the rear and was supported by 24 bamboo posts 4 in a row in front, 4 in the rear and 5 on each side
with bamboo braces." 1
The "zarzuela" entitled "Midas Extravaganza" was donated by an association of Malasiqui employees of
the Manila Railroad Company in Caloocan, Rizal. The troupe arrived in the evening of January 22 for the
performance and one of the members of the group was Vicente Fontanilla. The program started at about
10:15 o'clock that evening with some speeches, and many persons went up the stage. The "zarzuela"
then began but before the dramatic part of the play was reached, the stage collapsed and Vicente
Fontanilla who was at the rear of the stage was pinned underneath. Fontanilia was taken to tile San
Carlos General Hospital where he died in the afternoon of the following day.
The heirs of Vicente Fontanilia filed a complaint with the Court of First Instance of Manila on September
11, 1959 to recover damages. Named party-defendants were the Municipality of Malasiqui, the Municipal
Council of Malasiqui and all the individual members of the Municipal Council in 1959.
Is the celebration of a town fiesta an undertaking in the excercise of a municipality's governmental or
public function or is it or a private or proprietary character?
2. This distinction of powers becomes important for purposes of determining the liability of the municipality
for the acts of its agents which result in an injury to third persons.
If the injury is caused in the course of the performance of a governmental function or duty no recovery, as
a rule, can be. had from the municipality unless there is an existing statute on the matter, 10 nor from its
officers, so long as they performed their duties honestly and in good faith or that they did not act wantonly
and maliciously. 11 In Palafox, et al., v. Province of Ilocos Norte, et al., 1958, a truck driver employed by
the provincial government of Ilocos Norte ran over Proceto Palafox in the course of his work at the
construction of a road. The Supreme Court in affirming the trial court's dismissal of the complaint for
damages held that the province could not be made liable because its employee was in the performance of
a governmental function the construction and maintenance of roads and however tragic and
deplorable it may be, the death of Palafox imposed on the province no duty to pay monetary
consideration. 12
With respect to proprietary functions, the settled rule is that a municipal corporation can be held liable to
third persons ex contractu 13 or ex delicto. 14

3. Coming to the case before Us, and applying the general tests given above, We hold that the holding of
the town fiesta in 1959 by the municipality of Malsiqui Pangasinan was an exercise of a private or
proprietary function of the municipality.
Section 2282 of the Chatter on Municipal Law of the Revised Administrative Code provides:
Section 2282. Celebration of fiesta. fiesta may be held in each municipality not
oftener than once a year upon a date fixed by the municipal council A fiesta s not
be held upon any other date than that lawfully fixed therefor, except when, for
weighty reasons, such as typhoons, foundations, earthquakes, epidemics, or
other public ties, the fiesta cannot be hold in the date fixed in which case it may
be held at a later date in the same year, by resolution of the council.
This provision simply gives authority to the municipality to celebrate a yearly fiesta but it does not impose
upon it a duty to observe one. Holding a fiesta even if the purpose is to commemorate a religious or
historical event of the town is in essence an act for the special benefit of the community and not for the
general welfare of the public performed in pursuance of a policy of the state. The mere fact that the
celebration, as claimed was not to secure profit or gain but merely to provide entertainment to the town
inhabitants is not a conclusive test. For instance, the maintenance of parks is not a source of income for
the nonetheless it is private undertaking as distinguished from the maintenance of public schools, jails,
and the like which are for public service.
As stated earlier, there can be no hard and fast rule for purposes of determining the true nature of an
undertaking or function of a municipality; the surrounding circumstances of a particular case are to be
considered and will be decisive. The basic element, however beneficial to the public the undertaking may
be, is that it is governmental in essence, otherwise. the function becomes private or proprietary in
character. Easily, no governmental or public policy of the state is involved in the celebration of a town
fiesta. 15
4. It follows that under the doctrine of respondent superior, petitioner-municipality is to be held liable for
damages for the death of Vicente Fontanilia if that was attributable to the negligence of the municipality's
officers, employees, or agents.
Art. 2176, Civil Code: Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage done. . .
Art. 2180, Civil Code: The obligation imposed by article 2176 is demandable not
only for one's own acts or omission, but also for those of persons for whom one
is responsible. . .
On this point, the Court of Appeals found and held that there was negligence.
The trial court gave credence to the testimony of Angel Novado, a witness of the defendants (now
petitioners), that a member of the "extravaganza troupe removed two principal braces located on the front
portion of the stage and used them to hang the screen or "telon", and that when many people went up the
stage the latter collapsed. This testimony was not believed however by respondent appellate court, and
rightly so. According to said defendants, those two braces were "mother" or "principal" braces located
semi-diagonally from the front ends of the stage to the front posts of the ticket booth located at the rear of
the stage and were fastened with a bamboo twine. 16 That being the case, it becomes incredible that any
person in his right mind would remove those principal braces and leave the front portion of the stage
practically unsupported. Moreover, if that did happen, there was indeed negligence as there was lack of
suspension over the use of the stage to prevent such an occurrence.

At any rate, the guitarist who was pointed to by Novado as the person who removed the two bamboo
braces denied having done so. The Court of Appeals said "Amor by himself alone could not have
removed the two braces which must be about ten meters long and fastened them on top of the stags for
the curtain. The stage was only five and a half meters wide. Surely, it, would be impractical and unwieldy
to use a ten meter bamboo pole, much more two poles for the stage curtain. 17
The appellate court also found that the stage was not strong enough considering that only P100.00 was
appropriate for the construction of two stages and while the floor of the "zarzuela" stage was of wooden
planks, the Post and braces used were of bamboo material We likewise observe that although the stage
was described by the Petitioners as being supported by "24" posts, nevertheless there were only 4 in
front, 4 at the rear, and 5 on each side. Where were the rest?
The Court of Appeals thus concluded
The court a quo itself attributed the collapse of the stage to the great number of
onlookers who mounted the stage. The municipality and/or its agents had the
necessary means within its command to prevent such an occurrence. Having
failed to take the necessary steps to maintain the safety of the stage for the use
of the participants in the stage presentation prepared in connection with the
celebration of the town fiesta, particularly, in preventing non participants or
spectators from mounting and accumulating on the stage which was not
constructed to meet the additional weight- the defendant-appellees were
negligent and are liable for the death of Vicente Fontanilla . (pp. 30-31, rollo, L29993)
The findings of the respondent appellate court that the facts as presented to it establish negligence as a
matter of law and that the Municipality failed to exercise the due diligence of a good father of the family,
will not disturbed by Us in the absence of a clear showing of an abuse of discretion or a gross
misapprehension of facts." 18
Liability rests on negligence which is "the want of such care as a person of ordinary prudence would
exercise under the circumstances of the case." 19
Thus, private respondents argue that the "Midas Extravaganza" which was to be performed during the
town fiesta was a "donation" offered by an association of Malasiqui employees of the Manila Railroad Co.
in Caloocan, and that when the Municipality of Malasiqui accepted the donation of services and
constructed precisely a "zarzuela stage" for the purpose, the participants in the stage show had the right
to expect that the Municipality through its "Committee on entertainment and stage" would build or put up a
stage or platform strong enough to sustain the weight or burden of the performance and take the
necessary measures to insure the personal safety of the participants. 20 We agree.
Quite relevant to that argument is the American case of Sanders v. City of Long Beach, 1942, which was
an action against the city for injuries sustained from a fall when plaintiff was descending the steps of the
city auditorium. The city was conducting a "Know your City Week" and one of the features was the
showing of a motion picture in the city auditorium to which the general public was invited and plaintiff
Sanders was one of those who attended. In sustaining the award for Damages in favor of plaintiff, the
District Court of Appeal, Second district, California, held inter alia that the "Know your City Week" was a
"proprietary activity" and not a "governmental one" of the city, that defendant owed to plaintiff, an invitee
the duty of exercising ordinary care for her safety, and plaintiff was entitled to assume that she would not
be exposed to a danger (which in this case consisted of lack of sufficient illumination of the premises) that
would come to her through a violation of defendant duty. 21
We can say that the deceased Vicente Fontanilla was similarly situated as Sanders. The Municipality of
Malasiqui resolved to celebrate the town fiesta in January of 1959; it created a committee in charge of the

entertainment and stage; an association of Malasiqui residents responded to the call for the festivities and
volunteered to present a stage show; Vicente Fontanilla was one of the participants who like Sanders had
the right to expect that he would not be exposed to danger on that occasion.
Lastly, petitioner or appellant Municipality cannot evade ability and/or liability under the c that it was Jose
Macaraeg who constructed the stage. The municipality acting through its municipal council appointed
Macaraeg as chairman of the sub-committee on entertainment and in charge of the construction of the
"zarzuela" stage. Macaraeg acted merely as an agent of the Municipality. Under the doctrine of
respondeat superior mentioned earlier, petitioner is responsible or liable for the negligence of its agent
acting within his assigned tasks. 22
... when it is sought to render a municipal corporation liable for the act of servants or agents, a cardinal
inquiry is, whether they are the servants or agents of the corporation. If the corporation appoints or elects
them, can control them in the discharge of their duties, can continue or remove the can hold them
responsible for the manner in which they discharge their trust, and if those duties relate to the exercise of
corporate powers, and are for the benefit of the corporation in its local or special interest, they may justly
be regarded as its agents or servants, and the maxim of respondent superior applies." ...
5. The remaining question to be resolved centers on the liability of the municipal councilors who enacted
the ordinance and created the fiesta committee.
The Court of Appeals in its decision now under review held that the celebration of a town fiesta by the
Municipality of Malasiqui was not a governmental function. We upheld that ruling. The legal consequence
thereof is that the Municipality stands on the same footing as an ordinary private corporation with the
municipal council acting as its board of directors. It is an elementary principle that a corporation has a
personality, separate and distinct from its officers, directors, or persons composing it 26 and the latter are
not as a rule co-responsible in an action for damages for tort or negligence culpa aquilla committed by the
corporation's employees or agents unless there is a showing of bad faith or gross or wanton negligence
on their part. 27
On these people We absolve Use municipal councilors from any liability for the death of Vicente
Fontanilla. The records do not show that said petitioners directly participated in the defective construction
of the "zarzuela" stage or that they personally permitted spectators to go up the platform.
CITY OF MANILA, and EVANGELINE SUVA, petitioners,
vs.
HON. INTERMEDIATE APPELLATE COURT, et al, respondents.
Brought on February 22, 1979 by the widow and children of the late Vivencio Sto. Domingo, Sr. was this
action for damages against the City of Manila; Evangeline Suva of the City Health Office; Sergio Mallari,
officer-in-charge of the North Cemetery; and Joseph Helmuth, the latter's predecessor as officer-in-charge
of the said burial grounds owned and operated by the City Government of Manila.
Vivencio Sto. Domingo, Sr. deceased husband of plaintiff Irene Sto. Domingo and father of the litigating
minors, died on June 4,1971 and buried on June 6,1971 in Lot No. 159, Block No. 194 of the North
Cemetery which lot was leased by the city to Irene Sto. Domingo for the period from June 6, 1971 to June
6, 2021 per Official Receipt No. 61307 dated June 6, 1971 (see Exh. A) with an expiry date of June 6,
2021 (see Exh. A-1). Full payment of the rental therefor of P50.00 is evidenced by the said receipt which
appears to be regular on its face. Apart from the aforementioned receipt, no other document was
executed to embody such lease over the burial lot in question. In fact, the burial record for Block No. 194
of Manila North Cemetery (see Exh. 2) in which subject Lot No. 159 is situated does not reflect the term of
duration of the lease thereover in favor of the Sto. Domingos.

Believing in good faith that, in accordance with Administrative Order No. 5, Series of 1975, dated March 6,
1975, of the City Mayor of Manila (See Exh. 1) prescribing uniform procedure and guidelines in the
processing of documents pertaining to and for the use and disposition of burial lots and plots within the
North Cemetery, etc., subject Lot No. 159 of Block 194 in which the mortal remains of the late Vivencio
Sto. Domingo were laid to rest, was leased to the bereaved family for five (5) years only, subject lot was
certified on January 25, 1978 as ready for exhumation.
On the basis of such certification, the authorities of the North Cemetery then headed by defendant Joseph
Helmuth authorized the exhumation and removal from subject burial lot the remains of the late Vivencio
Sto. Domingo, Sr., placed the bones and skull in a bag or sack and kept the same in the depository or
bodega of the cemetery y Subsequently, the same lot in question was rented out to another lessee so that
when the plaintiffs herein went to said lot on All Souls Day in their shock, consternation and dismay, that
the resting place of their dear departed did not anymore bear the stone marker which they lovingly placed
on the tomb. Indignant and disgusted over such a sorrowful finding, Irene Sto. Domingo lost no time in
inquiring from the officer-in-charge of the North Cemetery, defendant Sergio Mallari, and was told that the
remains of her late husband had been taken from the burial lot in question which was given to another
lessee.
Irene Sto. Domingo was also informed that she can look for the bones of her deceased husband in the
warehouse of the cemetery where the exhumed remains from the different burial lots of the North
Cemetery are being kept until they are retrieved by interested parties. But to the bereaved widow, what
she was advised to do was simply unacceptable. According to her, it was just impossible to locate the
remains of her late husband in a depository containing thousands upon thousands of sacks of human
bones. She did not want to run the risk of claiming for the wrong set of bones. She was even offered
another lot but was never appeased. She was too aggrieved that she came to court for relief even before
she could formally present her claims and demands to the city government and to the other defendants
named in the present complaint. (Decision, Court of Appeals, pp. 2-3; Rollo, pp. 34-55)
The pivotal issue of this case is whether or not the operations and functions of a public cemetery are a
governmental, or a corporate or proprietary function of the City of Manila. The resolution of this issue is
essential to the determination of the liability for damages of the petitioner city.
Under Philippine laws, the City of Manila is a political body corporate and as such endowed with the
faculties of municipal corporations to be exercised by and through its city government in conformity with
law, and in its proper corporate name. It may sue and be sued, and contract and be contracted with. Its
powers are twofold in character-public, governmental or political on the one hand, and corporate, private
and proprietary on the other. Governmental powers are those exercised in administering the powers of
the state and promoting the public welfare and they include the legislative, judicial, public and political.
Municipal powers on the one hand are exercised for the special benefit and advantage of the community
and include those which are ministerial, private and corporate. In McQuillin on Municipal Corporation, the
rule is stated thus: "A municipal corporation proper has ... a public character as regards the state at large
insofar as it is its agent in government, and private (so called) insofar as it is to promote local necessities
and conveniences for its own community (Torio v. Fontanilla, 85 SCRA 599 [1978]). In connection with the
powers of a municipal corporation, it may acquire property in its public or governmental capacity, and
private or proprietary capacity. The New Civil Code divides such properties into property for public use
and patrimonial properties (Article 423), and further enumerates the properties for public use as provincial
roads, city streets, municipal streets, the squares, fountains, public waters, promenades, and public works
for public service paid for by said provisions, cities or municipalities, all other property is patrimonial
without prejudice to the provisions of special laws (Article 424; Province of Zamboanga del Norte v. City of
Zamboanga, et al., 22 SCRA 1334 [1968]).
Thus in Torio v. Fontanilla, supra, the Court declared that with respect to proprietary functions the settled
rule is that a municipal corporation can be held liable to third persons ex contractu (Municipality of
Moncada v. Cajuigan, et al., 21 Phil. 184 (1912) or ex delicto (Mendoza v. de Leon, 33 Phil. 508 (1916).

The Court further stressed:

Municipal corporations are subject to be sued upon contracts and in tort....
xxx xxx xxx
The rule of law is a general one, that the superior or employer must answer civilly
for the negligence or want of skill of its agent or servant in the course or line of
his employment, by which another who is free from contributory fault, is injured.
Municipal corporations under the conditions herein stated, fall within tile
operation of this rule of law, and are liable accordingly, to civil actions for
damages when the requisite elements of liability co-exist. ... (Emphasis supplied)
The Court added:
... while the following are corporate or proprietary in character, viz: municipal
waterworks, slaughter houses, markets, stables, bathing establishments,
wharves, ferries and fisheries. Maintenance of parks, golf courses, cemeteries
and airports among others, are also recognized as municipal or city activities of a
proprietary character. (Dept. of Treasury v. City of Evansvulle, Sup. Ct. of
Indiana, 60 N.E. 2nd 952, 954 cited in Torio v. Fontanilla, supra) (Emphasis
supplied)
Under the foregoing considerations and in the absence of a special law, the North Cemetery is a
patrimonial property of the City of Manila which was created by resolution of the Municipal Board of
August 27, 1903 and January 7, 1904. The administration and government of the cemetery are under the
City Health Officer, the order and police of the cemetery, the opening of graves, niches, or tombs, the
exhuming of remains, and the purification of the same are under the charge and responsibility of the
superintendent of the cemetery. The City of Manila furthermore prescribes the procedure and guidelines
for the use and dispositions of burial lots and plots within the North Cemetery through Administrative
Order No. 5, s. 1975. With the acts of dominion, there is, therefore no doubt that the North Cemetery is
within the class of property which the City of Manila owns in its proprietary or private character.
Furthermore, there is no dispute that the burial lot was leased in favor of the private respondents. Hence,
obligations arising from contracts have the force of law between the contracting parties. Thus a lease
contract executed by the lessor and lessee remains as the law between them. Therefore, a breach of
contractual provision entitles the other party to damages even if no penalty for such breach is prescribed
in the contract.
Noteworthy are the findings of the Court of Appeals as to the harrowing experience of private respondents
and their wounded feelings upon discovery that the remains of their loved one were exhumed without
their knowledge and consent, as said Court declared:
It has been fully established that the appellants, in spite or perhaps because, of
their lowly station in life have found great consolation in their bereavement from
the loss of their family head, by visiting his grave on special or even ordinary
occasions, but particularly on All Saints Day, in keeping with the deep, beautiful
and Catholic Filipino tradition of revering the memory of their dead. It would have
been but fair and equitable that they were notified of the intention of the city
government to transfer the skeletal remains of the late Vivencio Sto. Domingo to
give them an opportunity to demand the faithful fulfillment of their contract, or at
least to prepare and make provisions for said transfer in order that they would not
lose track of the remains of their beloved dead, as what has actually happened
on this case. We understand fully what the family of the deceased must have felt
when on All Saints Day of 1978, they found a new marker on the grave they were

to visit, only to be told to locate their beloved dead among thousands of skeletal
remains which to them was desecration and an impossible task. Even the lower
court recognized this when it stated in its decision thus:
All things considered, even as the Court commiserates with
plaintiffs for the unfortunate happening complained of and
untimely desecration of the resting place and remains of their
deceased dearly beloved, it finds the reliefs prayed for by them
lacking in legal and factual basis. Under the aforementioned
facts and circumstances, the most that plaintiffs ran ask for is the
replacement of subject lot with another lot of equal size and
similar location in the North Cemetery which substitute lot
plaintiffs can make use of without paying any rental to the city
government for a period of forty-three (43) years, four (4) months
and eleven (11) days corresponding to the unexpired portion of
the term of the lease sued upon as of January 25, 1978 when
the remains of the late Vivencio Sto. Domingo, Sr. were
prematurely removed from the disputed lot; and to require the
defendants to look in earnest for the bones and skull of the late
Vivencio Sto. Domingo Sr. and to bury the same in the substitute
lot adjudged in favor of plaintiffs hereunder.
As regards the issue of the validity of the contract of lease of grave lot No. 159, Block No. 195 of the
North Cemetery for 50 years beginning from June 6, 1971 to June 6, 2021 as clearly stated in the receipt
duly signed by the deputy treasurer of the City of Manila and sealed by the city government, there is
nothing in the record that justifies the reversal of the conclusion of both the trial court and the Intermediate
Appellate Court to the effect that the receipt is in itself a contract of lease.
Under the doctrine of respondent superior, (Torio v. Fontanilla, supra), petitioner City of Manila is liable for
the tortious act committed by its agents who failed to verify and check the duration of the contract of
lease. The contention of the petitioner-city that the lease is covered by Administrative Order No. 5, series
of 1975 dated March 6, 1975 of the City of Manila for five (5) years only beginning from June 6, 1971 is
not meritorious for the said administrative order covers new leases. When subject lot was certified on
January 25, 1978 as ready for exhumation, the lease contract for fifty (50) years was still in full force and
effect.
Article 2180.
The State is responsible in like manner when it acts through a special agent; but not when the damage
has been caused by the official to whom the task done properly pertains, in which case what is provided
in article 2176 shall be applicable.
CITY OF QUEZON, petitioner,
vs.
LEXBER INCORPORATED, respondent.
On August 27, 1990, a Tri-Partite Memorandum of Agreement 3 was drawn between petitioner City of
Quezon, represented by its then Mayor Brigido R. Simon, Jr., respondent Lexber, Inc. and the then
Municipality of Antipolo, whereby a 26,010 square meter parcel of land located in Antipolo 4 was to be
used as a garbage dumping site by petitioner and other Metro Manila cities or municipalities authorized by
the latter, for a 5-year period commencing in January 1991 to December 1995. Part of the agreement was
that the landowner, represented by respondent Lexber, shall be hired as the exclusive supplier of
manpower, heavy equipment and engineering services for the dumpsite and shall also have the right of
first refusal for contracting such services.

This led to the drawing of the first negotiated contract 5 between petitioner, represented by Mayor Simon,
and respondent Lexber on September 10, 1990, whereby the latter was engaged to construct the
necessary infrastructure at the dumpsite, designated as the Quezon City Sanitary Landfill, for the contract
price of P4,381,069.00. Construction of said infrastructure was completed by respondent Lexber on
November 25, 1991, and the contract price agreed upon was accordingly paid to it by petitioner.
Meanwhile, on November 8, 1990, a second negotiated contract 6 was entered into by respondent Lexber
with petitioner, again represented by Mayor Simon, whereby it was agreed that respondent Lexber shall
provide maintenance services in the form of manpower, equipment and engineering operations for the
dumpsite for the contract price of P1,536,796.00 monthly. It was further agreed that petitioner shall pay
respondent Lexber a reduced fee of fifty percent (50%) of the monthly contract price, or P768,493.00, in
the event petitioner fails to dump the agreed volume of 54,000 cubic meters of garbage for any given
month. On December 11, 1991, respondent was notified by petitioner, through the City Engineer, Alfredo
Macapugay, Project Manager, Rene Lazaro and Mayor Simon to commence maintenance and dumping
operations at the site starting on December 15, 1991. 7
Respondent Lexber alleged that petitioner immediately commenced dumping garbage on the landfill site
continuously from December 1991 until May 1992. Thereafter, petitioner ceased to dump garbage on the
said site for reasons not made known to respondent Lexber. Consequently, even while the dumpsite
remained unused, respondent Lexber claimed it was entitled to payment for its services as stipulated in
the second negotiated contract.
On December 12, 1992, respondent's counsel sent a demand letter to petitioner demanding the payment
of at least 50% of its service fee under the said contract, in the total amount of P9,989,174.00. In view of
the idle state of the dumpsite for more than a year, respondent also sought a clarification from petitioner
regarding its intention on the dumpsite project, considering the waste of equipment and manpower in the
meantime, as well as its loss of opportunity for the property.
Petitioner, this time acting through Mayor Ismael A. Mathay, Jr. who succeeded Mayor Simon in the
interim, denied any liability under the contract on the ground that the same was invalid and
unenforceable. According to Mayor Mathay, the subject contract was signed only by Mayor Simon and
had neither the approval nor ratification of the City Council, and it lacked the required budget
appropriation.
Thus, a complaint for Breach of Contract, Specific Performance or Rescission of Contract and Damages
was filed by respondent Lexber against petitioner on February 21, 1994 before the Regional Trial Court of
Quezon City.
The issue of whether or not the subject negotiated contract is null and void ab initio will be discussed first.
Petitioner insists that the subject contract failed to comply with the mandatory requirements of
Presidential Decree No. 1445, otherwise known as the Auditing Code of the Philippines.
Section 85 thereof provides:
Section 85. Appropriation before entering into contract. - (1) No contract involving the
expenditure of public funds shall be entered into unless there is an appropriation therefor,
the unexpected balance of which, free of other obligations, is sufficient to cover the
proposed expenditure; (2) Notwithstanding this provision, contracts for the procurement
of supplies and materials to be carried in stock may be entered into under regulations of
the Commission provided that when issued, the supplies and materials shall be charged
to the proper appropriation account. (Underscoring ours)
Section 86 of PD 1445 also provides as follows:

Section 86. Certificate showing appropriation to meet contract. - Except in a case of a

contract for personal service, for supplies for current consumption or to be carried in
stock not exceeding the estimated consumption for three months, or banking transactions
of government-owned or controlled banks, no contract involving the expenditure of public
funds by any government agency shall be entered into or authorized unless the proper
accounting official or the agency concerned shall have certified to the officer entering into
obligation that funds have been duly appropriated for the purpose and that the amount
necessary to cover the proposed contract for the current fiscal year is available for
expenditure on account thereof, subject to verification by the auditor concerned. The
certification signed by the proper accounting official and the auditor who verified it, shall
be attached to and become an integral part of the proposed contract, and the sum so
certified shall not thereafter be available for expenditure for any other purpose until the
obligation of the government agency concerned under the contract is fully extinguished,
(Underscoring ours)
Petitioner stresses that failure to comply with the requirements underlined in Sections 85 and 86 of PD
1445 rendered the subject contract void, invoking Section 87 of PD 1445 which provides:
Section 87. Void contract and liability of officer. - Any contract entered into contrary to the
requirements of the two immediately preceding sections shall be void, and the officer or
officers entering into the contract shall be liable to the government or other contracting
party for any consequent damage to the same extent as if the transaction had been
wholly between private parties.
If we are to limit our disquisition to the cited provisions of Presidential Decree No. 1445, or the Auditing
Code of the Philippines, in conjunction with Section 177 (b) of Batas Pambansa Blg. 337, or the Local
Government Code of 1983, which empowered the Sangguniang Panlungsod to "appropriate funds for
expenses of the city government, and fix the salaries of its officers and employees according to law,"
there would be no debate that prior appropriation by the city council and a certification that funds are
available therefor is indeed mandatorily required.
There is no denying that Sections 85 and 86 of P.D. 1445 (Auditing Code of the Philippines) provide that
contracts involving expenditure of public funds:
1) can be entered into only when there is an appropriation therefor; and
2) must be certified by the proper accounting official/agency that funds have been duly
appropriated for the purpose, which certification shall be attached to and become an
integral part of the proposed contact.
However, the very same Presidential Decree No. 1445, which is the cornerstone of petitioner's
arguments, does not provide that the absence of an appropriation law ipso facto makes a contract
entered into by a local government unit null and void. Section 84 of the statute specifically provides:
Revenue funds shall not be paid out of any public treasury or depository except in
pursuance of an appropriation law or other specific statutory authority. (Underscoring
ours)
Consequently, public funds may be disbursed not only pursuant to an appropriation law, but also in
pursuance of other specific statutory authority, i.e., Section 84 of PD 1445. Thus, when a contract is
entered into by a city mayor pursuant to specific statutory authority, the law, i.e., PD 1445 allows the
disbursement of funds from any public treasury or depository therefor. It can thus be plainly seen that the
law invoked by petitioner Quezon City itself provides that an appropriation law is not the only authority
upon which public funds shall be disbursed.

Furthermore, then Mayor Brigido Simon, Jr. did not enter into the subject contract without legal authority.
The Local Government Code of 1983, or B.P. Blg. 337, which was then in force, specifically and
exclusively empowered the city mayor to "represent the city in its business transactions, and sign all
warrants drawn on the city treasury and all bonds, contracts and obligations of the city." 10 Such power
granted to the city mayor by B.P. Blg. 337 was not qualified nor restricted by any prior action or authority
of the city council. We note that while the subsequent Local Government Code of 1991, 11 which took
effect after the execution of the subject contracts, provides that the mayor's representation must be "upon
authority of the sangguniang panlungsod or pursuant to law or ordinance," 12 there was no such
qualification under the old code.
We must differentiate the provisions of the old Local Government Code of 1983, B.P. Blg. 337, which was
then in force, from that of the Local Government Code of 1991, R.A. No.7160, which now requires that the
mayor's representation of the city in its business transactions must be "upon authority of the sangguniang
panlungsod or pursuant to law or ordinance" (Section 455 [vi]). No such prior authority was required
under B.P. Blg. 337. This restriction, therefore, cannot be imposed on the city mayor then since the two
contracts were entered into before R.A. No.7160 was even enacted.
Under B.P. Blg. 337, while the city mayor has no power to appropriate funds to support the contracts,
neither does said law prohibit him from entering into contracts unless and until funds are appropriated
therefor. In fact, it is his bounden duty to so represent the city in all its business transactions. On the other
hand, the city council must provide for the "depositing, leaving or throwing of garbage" 13 and to
appropriate funds for such expenses.14 {Section 177 [b]). It cannot refuse to so provide and appropriate
public funds for such services which are very vital to the maintenance of cleanliness of the city and the
good health of its inhabitants.
By entering into the two contracts, Mayor Simon did not usurp the city council's power to provide for the
proper disposal of garbage and to appropriate funds therefor. The execution of contracts to address such
a need is his statutory duty, just as it is the city council's duty to provide for said services. There is no
provision in B.P. Blg. 337, however, that prohibits the city mayor from entering into contracts for the public
welfare, unless and until there is prior authority from the city council. This requirement was imposed much
later by R.A. No. 7160, long after the contracts had already been executed and implemented.
Even the very Charter of Quezon City,15 more particularly Section 9(f), Section 12(a) and Section 12(m)
thereof, simply provide that the mayor shall exercise general powers and duties, such as signing "all
warrants drawn on the city treasurer and all bonds, contracts, and obligations of the city," 16 even as it
grants the City Council the power, by ordinance or resolution, "to make all appropriations for the expenses
of the government of the city,"17 as well as "to prohibit the throwing or depositing of offal, garbage, refuse,
or other offensive matter in the same, and to provide for its collection and disposition x x x." 18
While the powers and duties of the Mayor and the City Council are clearly delineated, there is nothing in
the cited provisions, nor even in the statute itself, that requires "prior authorization by the city council by
proper enactment of an ordinance" before the City Mayor can enter into contracts.
Contrary to petitioner's arguments, the facts in the Osmea case are not parallel to the facts in the instant
case. While in the former the construction of an abattoir entailed the payment in full of a fixed amount, the
case at bar involved a contract for services still to be rendered which was payable on a monthly basis,
just as in the Imus case. In the latter case, the Supreme Court did not declare the contract null and
void ab initio for the reason that appropriation for the project can be made subsequent to the execution of
the contract. Consequently, the ruling in the Imus case is germane to the instant case. Furthermore, the
trial court noted that while herein petitioner would attack the subject contract for being fatally defective,
the Commission on Audit did not declare the said contract as null and void, unlike in the Osmea case
where the questioned contract was declared invalid by the COA. Hence, the ruling in the Osmea case
finds no application in the instant controversy.

Finally, petitioner's refusal to honor the contract is not only contrary to law, but also grossly unfair to
respondent Lexber. It was petitioner that first offered and later persuaded respondent Lexber to convert
the latter's property into a sanitary landfill for petitioner's exclusive use. While the property could have
been used for other more lucrative and pleasant purposes, petitioner convinced respondent Lexber by its
assurances and stipulations in the contract. In turn, respondent Lexber relied on petitioner to abide by
their contract, only to be rebuffed after petitioner had already taken initial advantage of the facilities. By
virtue of the infrastructure intended for the sanitary landfill that was erected thereon, respondent Lexber
could not divert its use to other purposes. It is but fair that respondent Lexber be compensated for the
financial losses it has incurred in accordance with the obligation of petitioner as stipulated in the second
negotiated contract.
CITY OF MANILA, and EVANGELINE SUVA, petitioners,
vs.
HON. INTERMEDIATE APPELLATE COURT, et al, respondents.
Brought on February 22, 1979 by the widow and children of the late Vivencio Sto. Domingo, Sr. was this
action for damages against the City of Manila; Evangeline Suva of the City Health Office; Sergio Mallari,
officer-in-charge of the North Cemetery; and Joseph Helmuth, the latter's predecessor as officer-in-charge
of the said burial grounds owned and operated by the City Government of Manila.
Vivencio Sto. Domingo, Sr. deceased husband of plaintiff Irene Sto. Domingo and father of the litigating
minors, died on June 4,1971 and buried on June 6,1971 in Lot No. 159, Block No. 194 of the North
Cemetery which lot was leased by the city to Irene Sto. Domingo for the period from June 6, 1971 to June
6, 2021 per Official Receipt No. 61307 dated June 6, 1971 (see Exh. A) with an expiry date of June 6,
2021 (see Exh. A-1). Full payment of the rental therefor of P50.00 is evidenced by the said receipt which
appears to be regular on its face. Apart from the aforementioned receipt, no other document was
executed to embody such lease over the burial lot in question. In fact, the burial record for Block No. 194
of Manila North Cemetery (see Exh. 2) in which subject Lot No. 159 is situated does not reflect the term of
duration of the lease thereover in favor of the Sto. Domingos.
Believing in good faith that, in accordance with Administrative Order No. 5, Series of 1975, dated March 6,
1975, of the City Mayor of Manila (See Exh. 1) prescribing uniform procedure and guidelines in the
processing of documents pertaining to and for the use and disposition of burial lots and plots within the
North Cemetery, etc., subject Lot No. 159 of Block 194 in which the mortal remains of the late Vivencio
Sto. Domingo were laid to rest, was leased to the bereaved family for five (5) years only, subject lot was
certified on January 25, 1978 as ready for exhumation.
On the basis of such certification, the authorities of the North Cemetery then headed by defendant Joseph
Helmuth authorized the exhumation and removal from subject burial lot the remains of the late Vivencio
Sto. Domingo, Sr., placed the bones and skull in a bag or sack and kept the same in the depository or
bodega of the cemetery y Subsequently, the same lot in question was rented out to another lessee so that
when the plaintiffs herein went to said lot on All Souls Day in their shock, consternation and dismay, that
the resting place of their dear departed did not anymore bear the stone marker which they lovingly placed
on the tomb. Indignant and disgusted over such a sorrowful finding, Irene Sto. Domingo lost no time in
inquiring from the officer-in-charge of the North Cemetery, defendant Sergio Mallari, and was told that the
remains of her late husband had been taken from the burial lot in question which was given to another
lessee.
Irene Sto. Domingo was also informed that she can look for the bones of her deceased husband in the
warehouse of the cemetery where the exhumed remains from the different burial lots of the North
Cemetery are being kept until they are retrieved by interested parties. But to the bereaved widow, what
she was advised to do was simply unacceptable. According to her, it was just impossible to locate the
remains of her late husband in a depository containing thousands upon thousands of sacks of human
bones. She did not want to run the risk of claiming for the wrong set of bones. She was even offered
another lot but was never appeased. She was too aggrieved that she came to court for relief even before

she could formally present her claims and demands to the city government and to the other defendants
named in the present complaint. (Decision, Court of Appeals, pp. 2-3; Rollo, pp. 34-55)
The pivotal issue of this case is whether or not the operations and functions of a public cemetery are a
governmental, or a corporate or proprietary function of the City of Manila. The resolution of this issue is
essential to the determination of the liability for damages of the petitioner city.
Thus in Torio v. Fontanilla, supra, the Court declared that with respect to proprietary functions the settled
rule is that a municipal corporation can be held liable to third persons ex contractu (Municipality of
Moncada v. Cajuigan, et al., 21 Phil. 184 (1912) or ex delicto (Mendoza v. de Leon, 33 Phil. 508 (1916).
The Court further stressed:
Municipal corporations are subject to be sued upon contracts and in tort....
xxx xxx xxx
The rule of law is a general one, that the superior or employer must answer civilly
for the negligence or want of skill of its agent or servant in the course or line of
his employment, by which another who is free from contributory fault, is injured.
Municipal corporations under the conditions herein stated, fall within tile
operation of this rule of law, and are liable accordingly, to civil actions for
damages when the requisite elements of liability co-exist. ... (Emphasis supplied)
The Court added:
... while the following are corporate or proprietary in character, viz: municipal
waterworks, slaughter houses, markets, stables, bathing establishments,
wharves, ferries and fisheries. Maintenance of parks, golf courses, cemeteries
and airports among others, are also recognized as municipal or city activities of a
proprietary character. (Dept. of Treasury v. City of Evansvulle, Sup. Ct. of
Indiana, 60 N.E. 2nd 952, 954 cited in Torio v. Fontanilla, supra) (Emphasis
supplied)
Under the foregoing considerations and in the absence of a special law, the North Cemetery is a
patrimonial property of the City of Manila which was created by resolution of the Municipal Board of
August 27, 1903 and January 7, 1904. The administration and government of the cemetery are under the
City Health Officer, the order and police of the cemetery, the opening of graves, niches, or tombs, the
exhuming of remains, and the purification of the same are under the charge and responsibility of the
superintendent of the cemetery. The City of Manila furthermore prescribes the procedure and guidelines
for the use and dispositions of burial lots and plots within the North Cemetery through Administrative
Order No. 5, s. 1975. With the acts of dominion, there is, therefore no doubt that the North Cemetery is
within the class of property which the City of Manila owns in its proprietary or private character.
Furthermore, there is no dispute that the burial lot was leased in favor of the private respondents. Hence,
obligations arising from contracts have the force of law between the contracting parties. Thus a lease
contract executed by the lessor and lessee remains as the law between them. Therefore, a breach of
contractual provision entitles the other party to damages even if no penalty for such breach is prescribed
in the contract.
As regards the issue of the validity of the contract of lease of grave lot No. 159, Block No. 195 of the
North Cemetery for 50 years beginning from June 6, 1971 to June 6, 2021 as clearly stated in the receipt
duly signed by the deputy treasurer of the City of Manila and sealed by the city government, there is
nothing in the record that justifies the reversal of the conclusion of both the trial court and the Intermediate
Appellate Court to the effect that the receipt is in itself a contract of lease.

Under the doctrine of respondent superior, (Torio v. Fontanilla, supra), petitioner City of Manila is liable for
the tortious act committed by its agents who failed to verify and check the duration of the contract of
lease. The contention of the petitioner-city that the lease is covered by Administrative Order No. 5, series
of 1975 dated March 6, 1975 of the City of Manila for five (5) years only beginning from June 6, 1971 is
not meritorious for the said administrative order covers new leases. When subject lot was certified on
January 25, 1978 as ready for exhumation, the lease contract for fifty (50) years was still in full force and
effect.
PROVINCE OF CEBU, petitioner,
vs.
HONORABLE INTERMEDIATE APPELLATE COURT and ATTY. PABLO P. GARCIA, respondents.
The facts of the case are not in dispute. On February 4, 1964, while then incumbent Governor Rene
Espina was on official business in Manila, the Vice-Governor, Priscillano Almendras and three (3)
members of the Provincial Board enacted Resolution No. 188, donating to the City of Cebu 210 provinceowned lots all located in the City of Cebu, with an aggregate area of over 380 hectares, and authorizing
the Vice-Governor to sign the deed of donation on behalf of the province. The deed of donation was
immediately executed in behalf of the Province of Cebu by Vice-Governor Almendras and accepted in
behalf of the City of Cebu by Mayor Sergio Osmea, Jr. The document of donation was prepared and
notarized by a private lawyer. The donation was later approved by the Office of the President through
Executive Secretary Juan Cancio.
According to the questioned deed of donation the lots donated were to be sold by the City of Cebu to
raise funds that would be used to finance its public improvement projects. The City of Cebu was given a
period of one (1) year from August 15, 1964 within which to dispose of the donated lots.
Upon his return from Manila, Governor Espina denounced as Legal and immoral the action of his
colleagues in donating practically all the patrimonial property of the province of Cebu, considering that the
latter's income was less than one fourth (1/4) of that of the City of Cebu.
To prevent the sale or disposition of the lots, the officers and members of the Cebu Mayor's League (in
behalf of their respective municipalities) along with some taxpayers, including Atty. Garcia, filed a case
seeking to have the donation declared illegal, null and void.
The matter of representation of a municipality by a private attorney has been settled in Ramos v. Court of
Appeals(108 SCRA 728). Collaboration of a private law firm with the fiscal and the municipal attorney is
not allowed.
The above provision, complemented by Section 3 of the Local Autonomy Law, is clear in providing that
only the provincial fiscal and the municipal attorney can represent a province or municipality in its
lawsuits. The provision is mandatory. The municipality's authority to employ a private lawyer is expressly
limited only to situations where the provincial fiscal is disqualified to represent it (De Guia v. The Auditor
General 44 SCRA 169; Municipality of Bocaue, et. al. v. Manotok, 93 Phil. 173; Enriquez, Sr., v. Honorable
Gimenez, 107 Phil. 932) as when he represents the province against a municipality.
The lawmaker, in requiring that the local government should be represented in its court cases by a
government lawyer, like its municipal attorney and the provincial fiscal intended that the local government
should not be burdened with the expenses of hiring a private lawyer. The lawmaker also assumed that the
interests of the municipal corporation would be best protected if a government lawyer handles its
litigations. It is to be expected that the municipal attorney and the fiscal would be faithful and dedicated to
the corporation's interests, and that, as civil service employees, they could be held accountable for any
misconduct or dereliction of duty (See Ramos v. Court of Appeals, supra).

However, every rule is not without an exception, Ibi quid generaliter conceditur; inest haec exceptio, si
non aliquid sit contra jus fasque (Where anything is granted generally, this exception is implied; that
nothing shall be contrary to law and right). Indeed, equity, as well as the exceptional situation facing us in
the case at bar, require a departure from the established rule.
It is argued that Governor Espina was not authorized by the Provincial Board, through a board resolution,
to employ Atty. Pablo P. Garcia as counsel of the Province of Cebu.
Admittedly, this is so.
However, the circumstances obtaining in the case at bar are such that the rule cannot be applied. The
Provincial Board would never have given such authorization. The decision of the respondent court
elucidates the matter thus:
... The provisions of Sections 1681 to 1683 of the Revised Administrative Code
contemplate a normal situation where the adverse party of the province is a third
person as in the case of Enriquez v. Auditor General, 107 Phil 932. In the present
case, the controversy involved an intramural fight between the Provincial
Governor on one hand and the members of the Provincial Board on the other
hand. Obviously it is unthinkable for the Provincial Board to adopt a resolution
authorizing the Governor to employ Atty. Garcia to act as counsel for the
Province of Cebu for the purpose of filing and prosecuting a case against the
members to the same Provincial Board According to the claimant Atty. Garcia,
how can Governor Espina be expected to secure authority from the Provincial
Board to employ claimant as counsel for the Province of Cebu when the very
officials from whom authority is to be sought are the same officials to be sued, It
is simply impossible that the Vice-Governor and the members of the Provincial
Board would pass a resolution authorizing Governor Espina to hire a lawyer to
file a suit against themselves.
Respondent counsel's representation of the Province of Cebu became necessary because of the
Provincial Board's failure or refusal to direct the bringing of the action to recover the properties it had
donated to the City of Cebu. The Board more effectively disqualified the Provincial Fiscal from
representing the Province of Cebu when it directed the Fiscal to appear for its members in Civil Case No.
R-8669 filed by Atty. Garcia, and others, to defend its actuation in passing and approving Provincial Board
Resolution No. 186. The answer of the Provincial Fiscal on behalf of the Vice-Governor and the Provincial
Board members filed in Civil Case No. R-8669; (Exhibit "K") upholds the validity and legality of the
donation. How then could the Provincial Fiscal represent the Province of Cebu in the suit to recover the
properties in question? How could Governor Espina be represented by the Provincial Fiscal or seek
authorization from the Provincial Board to employ special counsel? Nemo tenetur ad impossibile (The law
obliges no one to perform an impossibility). Neither could a prosecutor be designated by the Department
of Justice. Malacaang had already approved the questioned donation.
Anent the question of liability for respondent counsel's services, the general rule that an attorney cannot
recover his fees from one who did not employ him or authorize his employment, is subject to its own
exception.
Until the contrary is clearly shown an attorney is presumed to be acting under authority of the litigant
whom he purports to represent. His authority to appear for and represent petitioner in litigation, not having
been questioned in the lower court, it will be presumed on appeal that counsel was properly authorized to
file the complaint and appear for his client.

The act of the successor provincial board and provincial officials in allowing respondent Atty. Pablo P.
Garcia to continue as counsel and in joining him in the suit led the counsel to believe his services were
still necessary.
We apply a rule in the law of municipal corporations: "that a municipality may become obligated upon an
implied contract to pay the reasonable value of the benefits accepted or appropriated by it as to which it
has the general power to contract. The doctrine of implied municipal liability has been said to apply to all
cases where money or other property of a party is received under such circumstances that the general
law, independent of express contract implies an obligation upon the municipality to do justice with respect
to the same."
The petitioner can not set up the plea that the contract was ultra vires and still retain benefits thereunder.
Having regarded the contract as valid for purposes of reaping some benefits, the petitioner is estopped to
question its validity for the purposes of denying answerability.
Actually it was Governor Espina who filed the case against Cebu City and Mayor Osmea. Garcia just
happened to be the lawyer, Still Atty. Garcia is entitled to compensation. To deny private respondent
compensation for his professional services would amount to a deprivation of property without due process
of law (Cristobal v. Employees' Compensation Commission, 103 SCRA 329).
BARTOLOME E. SAN DIEGO, plaintiff-appellee,
vs.
THE MUNICIPALITY OF NAUJAN, PROVINCE OF ORIENTAL MINDORO, defendant-appellant.
Following a public bidding conducted by the municipality of Naujan, Oriental Mindoro for the lease of its
municipal waters, Resolution 46, series of 1947 was passed by the municipal council thereof awarding the
concession of the Butas River and the Naujan Lake to the highest bidder Bartolome San Diego.
Consequently, a contract was entered into between the said San Diego and the municipality, stipulating
that for a period of five (5) years, from January 1, 1948 to December 31, 1952, the former was to be the
lessee of "the exclusive privilege of erecting fish corrals along the Butas River beginning from its junction
with the San Agustin River up to the Naujan Lake itself," for annual rental of P26,300.00, or a total of
P131,500.00 for five years. Upon petition by the lessee, however, the said council reduced the annual
rental by 20% by virtue of Resolution 59, series of 1949.
On September 5, 1950, the lessee requested for a five-year extension of the original lease period. The
request was, for some time, left pending before the municipal council, but on December 1, 1951, after the
lessee had reiterated his petition for extension, for the reason that the typhoon "Wanda", which took place
that month, destroyed most of his fish corrals, the council adopted Resolution 222, series of 1951
extending the lease for another five (5) years beginning January 1, 1952, with the express condition that
the plaintiff would waive the privilege to seek for reduction of the amount of rent which was to be based
on the original contract. After the resolution had been approved by the Provincial Board of Oriental
Mindoro, the lessor and the lessee, on December 23, 1951, contracted for the extension of the period of
the lease. The contract was approved and confirmed on December 29, 1951 by Resolution 229, series of
1951, of the municipal council of Naujan whose term was then about to expire. Pursuant to the said
contract, the lessee filed a surety bond of P52,000.00 and then reconstructed his fish corrals and stocked
the Naujan Lake with bagus fingerlings.
On January 2, 1952, the municipal council of Naujan, this time composed of a new set of members,
adopted Resolution 3, series of 1952, revoking Resolution 222, series of 1951. On the same date, the
new council also passed Resolution 11, revoking Resolution 229 of the old council which confirmed the
extension of the lease period. The lessee requested for reconsideration and recall of Resolution 3, on the
ground, among others, that it violated the contract executed between him and the municipality on
December 23, 1951, and, therefore, contrary to Article III, section 1, clause 10 of the Constitution. The
request, however, was not granted.

On September 4, 1952, the lessee instituted this proceedings in the court below seeking to have
Resolution 3, series of 1952, of the municipal council of Naujan, declared null and void, for being
unconstitutional, and praying for an order enjoining the defendant municipality from conducting a public
bidding for the leasing of the Naujan fisheries to any person other than the plaintiff during the period from
January 1, 1953 to December 31, 1957.
The main question to be decided is whether or not Resolution No. 3, series of 1952, revoking Resolution
222, series of 1951, of the municipal council of Naujan is valid.
For clarity, we have to reiterate that Resolution 222, series of 1951, is an approval of plaintiff-appellee's
petition for extension for another five years, effective January 1, 1953, of his five-year lease concession
granted under Resolution 46, series of 1947. Said Resolution 222, however, was revoked by the
municipal council under a new set of members in its Resolution 3, series of 1952, for the reason, among
others, that the extension was illegal, it having been granted without competitive public bidding. It is this
last mentioned resolution that has been declared null and void by the trial court.
The law (Sec. 2323 of the Revised Administrative Code) requires that when the exclusive privilege of
fishery or the right to conduct a fish-breeding ground is granted to a private party, the same shall be let to
the highest bidder in the same manner as is being done in exploiting a ferry, a market or a slaughterhouse
belonging to the municipality (See Municipality of San Luis vs. Ventura, et al., 56 Phil., 329). The
requirement of competitive bidding is for the purpose of inviting competition and to guard against
favoritism, fraud and corruption in the letting of fishery privileges.
There is no doubt that the original lease contract in this case was awarded to the highest bidder, but the
reduction of the rental and the extension of the term of the lease appear to have been granted without
previous public bidding. In the case of Caltex (Phil.), Inc., et al. vs. Delgado Bros., Inc., et al., 96 Phil.,
368, the amendment to an arrastre contract was declared null and void on the ground that it was made
without previous public bidding.
While in that case we ruled that although the "arrastre contract" therein questioned authorized the parties
to alter or amend any of the terms thereof, such authority must be considered as being subject to the
requirement of previous public bidding, a formality observed before the original contract was awarded,
with more reason should the rule requiring such public bidding be strictly applied in the instant case where
no such authority to alter or amend the terms of the contract was reserved.
Furthermore, it has been ruled that statutes requiring public bidding apply to amendments of any contract
already executed in compliance with the law where such amendments alter the original contract in some
vital and essential particular (See Morse vs. Boston, 148 N.E. 813253 Mass. 247.) Inasmuch as the
period in a lease is a vital and essential particular to the contract, we believe that the extension of the
lease period in this case, which was granted without the essential requisite of public bidding, is not in
accordance with law. And it follows the Resolution 222, series of 1951, and the contract authorized
thereby, extending the original five-year lease to another five years are null and void as contrary to law
and public policy.
We agree with the defendant-appellant in that the question Resolution 3 is not an impairment of the
obligation of contract, because the constitutional provision on impairment refers only to contract legally
executed. While, apparently, Resolution 3 tended to abrogate the contract extending the lease, legally
speaking, there was no contract abrogated because, as we have said, the extension contract is void and
inexistent.
The lower court, in holding that the defendant-appellant municipality has been estopped from assailing
the validity of the contract into which it entered on December 23, 1951, seems to have overlooked the
general rule that

. . . the doctrine of estoppel cannot be applied as against a municipal corporation to validate a contract
which it has no power to make or which it is authorized to make only under prescribed conditions, within
prescribed limitations, or in a prescribed mode or manner, although the corporation has accepted the
benefits thereof and the other party has fully performed his part of the agreement, or has expended large
sums in preparation for performance. A reason frequently assigned for this rule is that to apply the
doctrine of estoppel against a municipality in such case would be to enable it to do indirectly what it
cannot do directly. Also, where a contract is violative of public policy, the municipality executing it cannot
be estopped to assert the invalidity of a contract which has ceded away, controlled, or embarrassed its
legislative or government powers.
In consonance with the principles enunciated above, Resolution 59, series of 1947, reducing the rentals
by 20% of the original price, which was also passed without public bidding, should likewise be held void,
since a reduction of the rental to be paid by the lessee is a substantial alternation in the contract, making
it a distinct and different lease contract which requires the prescribed formality of public bidding.
THE MUNICIPALITY OF JASAAN, petitioner,
vs.
JOCELYN S. GENTALLAN, respondent.
On December 14, 1994, then Mayor Jose Salcedo appointed Jocelyn Gentallan as local civil registrar of
the Municipality of Jasaan, Misamis Oriental. Commissioner Thelma Gaminde of the CSC, when queried
about Gentallans qualifications, confirmed that Gentallans work experience was more than enough to
meet the minimum requirement of three (3) years experience for the position of local civil registrar. After
the lapse of fifteen (15) days without any action rendered by the Sangguniang Bayan of Jasaan, the
appointment was eventually deemed approved. On January 5, 1995, the Civil Service Commission
Regional Office No. 10 (CSCRO-10) approved her appointment as permanent.
However, Rosalina Asis, a research aide in the Office of the Local Civil Registrar, filed a protest. It was
dismissed by the CSC in CSC Resolution No. 95-5317 dated August 31, 1995, because the protestant
was not a qualified next-in-rank.
In the same resolution, however, the CSC reviewed the appointment of respondent Jocelyn Gentallan. It
held that Gentallan was not qualified as she failed to fulfill the required three-year experience relevant to
the position of local civil registrar. Her motion for reconsideration was denied in CSC Resolution No. 960582, dated January 25, 1996. She then filed a petition for review docketed as CA G.R. SP No. 40482
before the Court of Appeals.
Meanwhile, Mayor Paurom, pursuant to the CSC resolutions, ordered respondent to vacate the post as
Local Civil Registrar and directed her to assume her former position as Assistant Registration Officer.
In its Decision2 dated October 22, 1997, the Court of Appeals set aside the questioned resolutions and
found respondent qualified to the position. The decision became final and executory on November 15,
1997.3
On September 2, 1998,4 Regional Director Jose T. Soria of CSCRO-10 informed the Mayor of the
appellate courts decision and advised him to implement the same and reinstate respondent to the
position of Local Civil Registrar. However, the mayor did not. Respondent, through her counsel, wrote the
CSCRO-10 requesting for an order directing the municipality to reinstate her and pay her
backwages.5 Still, respondent was not reinstated.
Thus, respondent was constrained to file a case for mandamus with damages, and indirect contempt
before the Regional Trial Court of Misamis Oriental. Consequently, the parties reached an agreement. On
December 21, 1998, the mayor issued a memorandum,6 directing respondent to assume office as the
local civil registrar, and a notice7 of respondents salary adjustment was issued.

Thereafter, respondent asked the CSCRO-10 if she was entitled to back salaries, RATA and bonuses. The
CSCRO-10 through Regional Director Annabelle B. Rosell, in an Order 8 dated June 14, 1999, granted the
entitlements. When consulted by the mayor, the provincial attorney agreed that respondent was indeed
entitled pursuant to the Court of Appeals decision that had already become final.
However, the mayor still did not give respondent her back salaries, RATA and bonuses. The Sangguniang
Bayan of Jasaan in Resolution No. 302-99 deleted the items of appropriations for her salaries and
instead, appropriated the same for the operation of the Active Night Assistance Center
(ANAC).9 Respondent requested the CSC for the execution of the CSCRO-10 Order but the CSC
reversed it in CSC Resolution No. 001264 dated May 24, 2000. 10 It said that respondent was not entitled
to back salaries and other emoluments as she was not illegally dismissed from the service. Said the CSC:
As culled from the records, Mayor Paurom issued the Memorandum dated March 8,
1996, reverting Gentallan to her former position, Assistant Registration Officer, to execute
the CSC Resolution Nos. 95-5317 and 96-0582. Hence, Gentallan cannot be considered
to have been illegally dismissed from the service since her reversion to her former
position was a result of a lawful order of the Commission. 11
Simply put, the basic issue in the instant petitions is whether or not respondent Jocelyn Gentallan is
entitled to back salaries, RATA and bonuses.
After a careful review of the circumstances in these consolidated petitions, we are in agreement with the
Court of Appeals that respondent was qualified and eligible for the position of local civil registrar, and
there was no factual nor legal basis for her removal from said position. The CA order to reinstate her had
become final and executory. The CA decision ought to be upheld.
As a permanent appointee to the position, she enjoys security of tenure. She is likewise entitled to all
benefits, rights and privileges attached to the position. She cannot be removed or dismissed from the
service without just cause and without observing the requirements of due process. 21
An illegally dismissed government employee who is later ordered reinstated is entitled to backwages and
other monetary benefits from the time of her illegal dismissal up to her reinstatement. This is only fair and
just because an employee who is reinstated after having been illegally dismissed is considered as not
having left her office and should be given the corresponding compensation at the time of her
reinstatement.22
In the instant case, we note that there is no finding that malice or bad faith attended the illegal dismissal
and refusal to reinstate Gentallan by her superior officers. Thus, they cannot be held personally
accountable for her back salaries. The municipal government, therefore, should disburse funds to answer
for her claims resulting from dismissal.23
SOLANO LAGANAPAN, petitioner,
vs.
Mayor ELPIDIO ASEDILLO, MUNICIPALITY OF KALAYAAN, LAGUNA, et al, respondents.
The petitioner Solano Laganapan was appointed chief of police of the municipality of Kalayaan, Laguna
on 4 January 1960, with a compensation of P660.00 per annum, by the respondent Mayor Asedillo. On 1
July 1960, his salary was increased to P720.00 per annum, and he was extended an appointment which
was approved as provisional under Sec. 24(c) of Republic Act No. 2260 by the Commissioner of Civil
Service. 1
On 1 April 1962, the petitioner was given another increase in salary and a corresponding appointment
was made which the Commissioner of Civil Service "approved under Sec. 24(c) of Republic Act No. 2260,

to continue until replaced by an eligible but not beyond thirty (30) days from receipt of certification of
eligibles by the Provincial Treasurer of Laguna." 2
Then, on 1 July 1963, 1 July 1964, and 1 July 1965, he was again given salary increases, and new
appointments were extended to him, which appointments were also approved under Section 24(c) of
Republic Act No. 2260 by the Commissioner ofCivil Service. 3
However, on 16 February 1967, the petitioner was summarily dismissed from his position by respondent
Mayor Elpidio Asedillo, on the ground that his appointment was provisional and that he has no civil
service eligibility. The petitioner was told to surrender his firearm and other office equipment to the
Municipal Treasurer of Kalayaan, Laguna 4 who was also informed of petitioner's dismissal on the same
day. 5 Respondent Epifanio Ragotero was appointed acting chief of police of Kalayaan, Laguna on the
same day, in place of the petitioner. 6
Subsequently, or on 21 February 1967, the Municipal Council of Kalayaan, Laguna abolished the
appropriation for the salary of the chief of police of Kalayaan, Laguna. 7 In view thereof, the petitioner
complained to the Police Commission which advised him to file an injunction suit against Mayor Asedillo.

Hence, on 16 March 1967, the petitioner filed a petition for mandamus, quo warranto with preliminary
mandatory injunction against respondents Mayor Elpidio Asedillo, the Municipality of Kalayaan, Laguna,
and Epifanio Ragotero, before the Court of First Instance of Laguna, docketed therein as Civil Case No.
SC-719, seeking his reinstatement to the position of chief of police of Kalayaan, Laguna, with back
salaries and damages. 9
WHEREFORE, the Court hereby renders judgment
(a) Declaring the summary dismissal of the petitioner on February 16,1967,
illegal;
We have carefully examined the records of the case and find no cogent reason to disturb the findings of
the trial court, which are supported by the evidence and law.
In the instant case, there is no doubt that, in terminating the services of the appellee, the appellant Mayor
Elpidio Asedillo acted summarily without any semblance of compliance or even an attempt to comply with
the elementary rules of due process. No charges were filed; nor was a hearing conducted in order to give
the appellee an opportunity to defend himself, despite the provisions of Sec. 14 of Republic Act No. 4864,
otherwise known as the Police Act of 1966, which took effect on 8 September 1966, that "Members of the
local police agency shall not be suspended or removed except upon written complaint filed under oath
with the Board of Investigators herein provided for misconduct or incompetence, dishonesty, disloyalty to
the Government, serious irregularities in the performance of their duties, and violation of law." Following
the rule, there was no need for exhaustion of administrative remedies before appellee could come to court
for the protection of his rights.
Besides, it appears that the order was immediately executed and the appellee was immediately removed
from office and replaced by the appellant Epifanio Ragotero on the same day, so that appeal to the
Commissioner of Civil Service, even if available to the appellee, was not an adequate remedy in the
ordinary course of law.
We also find no merit in the appellants' contention that, since the appointments extended to the appellee
as chief of police of Kalayaan, Laguna were all provisional in nature, and not permanent, his services
could be terminated with or without cause, at the pleasure of the appointing officer. While it may be true
that the appellee was holding a provisional appointment at the time of his dismissal, he was not a
temporary official who could be dismissed at any time. His provisional appointment could only be
terminated thirty (30) days after receipt by the appointing officer of a list of eligibles from the Civil Service

Commission. 16 Here, no such certification was received by Mayor Elpidio Asedillo thirty (30) days prior to
his dismissal of the appellee.
We, likewise, find no merit in the contention of the respondent Municipality of Kalayaan, Laguna that
Mayor Elpidio Asedillo alone should be held liable for the back salaries of the petitioner, because the
records show that the action was instituted against Mayor Asedillo, not personally, but in his capacity as
Municipal Mayor of Kalayaan, Laguna, and he appeared and defended the action in such capacity.
Furthermore, it is of record that, after the summary dismissal of the petitioner by respondent Mayor
Asedillo on 16 February 1967, the Municipal Council of Kalayaan instead of opposing or at least
protesting the petitioner's summary dismissal from his position, even abolished the appropriation for the
salary of the Chief of Police of Kalayaan, Laguna, We consider this act of the Municipal Council of
Kalayaan as an approval or confirmation of the act of respondent Mayor in summarily dismissing the
petitioner, as to make said municipality equally liable, as held by the trial court, as respondent Mayor for
the reinstatement of petitioner and for the payment of his back salaries.
The trial court, therefore, did not commit error in finding that the summary dismissal of the petitioner was
illegal and in ordering the respondent Mayor and respondent Municipality to reinstate him with back
salaries from the time of his dismissal.
The appealed judgment, however, needs some modification in the light of supervening events. It would
appear that the reinstatement of the petitioner-appellee to his former position of chief of police of
Kalayaan, Laguna, as ordered in the appealed judgment, is no longer feasible and hence, it cannot be
enforced, in view of the appointment of a permanent chief of police (now called Station Commander) in
accordance with PD 482, issued on 13 June 1974, which provides for the integration of police and fire
departments and jails in certain provinces, including the province of Laguna.
Such being the case, the petitioner-appellee is entitled only to backsalaries which, however, should be
limited to a period of five (5) years. 23
In addition, respondent Mayor Asedillo who was sued in his official capacity as municipal mayor, having
passed away, the liability to pay petitioner his back salaries must now devolve upon the respondent
municipality alone.
FRANCISCO I. CHAVEZ, in his capacity as Solicitor General, petitioner
vs.
THE HON. SANDIGANBAYAN (First Division) and JUAN PONCE ENRILE, respondents.
The petitioner challenges the resolutions dated June 8, 1989 and November 2, 1989 of the
Sandiganbayan issued in Civil Case No. 0033 which granted the motion of private respondent Juan
Ponce Enrile, one of the defendants in the civil case, to implead the petitioner as additional party
defendant in Enrile's counterclaim in the same civil case and denied the petitioner's motion for
reconsideration.
On July 31, 1987, the Republic of the Philippines, through the Presidential Commission on Good
Government (PCGG) with the assistance of Solicitor General Francisco Chavez filed with the respondent
Sandiganbayan a complaint docketed as Civil Case No. 0033 against Eduardo Cojuangco, Jr. and Juan
Ponce Enrile, among others, for reconveyance, reversion and accounting, restitution and damages.
After the denial of his motion to dismiss, respondent Enrile filed his answer with compulsory counterclaim
and cross-claim with damages.

The Republic filed its reply to the answer and motion to dismiss the counterclaim. The motion was
opposed by respondent Enrile.
On January 30, 1989, respondent Sandiganbayan issued a resolution, to wit:
The resolution of the Motion to Dismiss the Counterclaim against the Plaintiff
government is deferred until after trial, the grounds relied upon not appearing to
be indubitable.
On the matter of the additional parties (Solicitor General Chavez, Ex-PCGG
Chairman Diaz, former Commissioners Doromal, Rodrigo, Romero and Bautista),
the propriety of impleading them either under Sec. 14, Rule 6 or even under Sec.
12 as third-party defendant requires leave of Court to determine the propriety
thereof. No such leave has been sought. Consideration thereof cannot be
entertained at this time nor may therefore, the Motion to Dismiss the same be
considered. (Rollo, p. 329; Annex "H", Petition)
Respondent Enrile then requested leave from the Sandiganbayan to implead the petitioner and the PCGG
officials as party defendants for lodging this alleged "harassment suit" against him.
The motion was granted.
The lone issue in this petition is the propriety of impleading the petitioner as additional party defendant in
the counterclaim filed by respondent Enrile in Civil Case No. 0033.
It may be noted that the private respondent did not limit himself to general averments of malice,
recklessness, and bad faith but filed specific charges that then PCGG Chairman Jovito Salonga had
already cleared the respondent and yet, knowing the allegations to be false, the petitioner still filed the
complaint.
On the other hand, the petitioner submits that no counter-claim can be filed against him in his capacity as
Solicitor General since he is only acting as counsel for the Republic.
Thus, the petitioner argues that since he is simply the lawyer in the case, exercising his duty under the
law to assist the Government in the filing and prosecution of all cases pursuant to Section 1, Executive
Order No. 14, he cannot be sued in a counterclaim in the same case.
Presiding Justice Francis Garchitorena correctly observed that there is no general immunity arising solely
from occupying a public office.
The general rule is that public officials can be held personally accountable for acts claimed to have been
performed in connection with official duties where they have acted ultra vires or where there is a showing
of bad faith.
Moreover, the petitioner's argument that the immunity proviso under Section 4(a) of Executive Order No.
1 also extends to him is not well-taken. A mere invocation of the immunity clause does not ipso
facto result in the charges being automatically dropped.
Immunity from suit cannot institutionalize irresponsibility and non-accountability nor grant a privileged
status not claimed by any other official of the Republic. (id., at page 586)
Where the petitioner exceeds his authority as Solicitor General acts in bad faith, or, as contended by the
private respondent, "maliciously conspir(es) with the PCGG commissioners in persecuting respondent

Enrile by filing against him an evidently baseless suit in derogation of the latter's constitutional rights and
liberties" (Rollo, p. 417), there can be no question that a complaint for damages may be filed against him.
High position in government does not confer a license to persecute or recklessly injure another. The
actions governed by Articles 19, 20, 21, and 32 of the Civil Code on Human Relations may be taken
against public officers or private citizens alike. The issue is not the right of respondent Enrile to file an
action for damages. He has the right. The issue is whether or not that action must be filed as a
compulsory counterclaim in the case filed against him.
In the case of Tiu Po v. Bautista, (103 SCRA 388 [1981]), we ruled that damages claimed to have been
suffered as a consequence of an action filed against the petitioner must be pleaded in the same action as
a compulsory counterclaim. We were referring, however, to a case filed by the private respondent against
the petitioners or parties in the litigation. In the present case, the counterclaim was filed against the
lawyer, not against the party plaintiff itself.
To allow a counterclaim against a lawyer who files a complaint for his clients, who is merely their
representative in court and not a plaintiff or complainant in the case would lead to mischievous
consequences.
A lawyer owes his client entire devotion to his genuine interest, warm zeal in the maintenance and
defense of his rights and the exertion of his utmost learning and ability. A lawyer cannot properly attend to
his duties towards his client if, in the same case, he is kept busy defending himself.
The problem is particularly perplexing for the Solicitor General. As counsel of the Republic, the Solicitor
General has to appear in controversial and politically charged cases. It is not unusual for high officials of
the Government to unwittingly use shortcuts in the zealous desire to expedite executive programs or
reforms. The Solicitor General cannot look at these cases with indifferent neutrality. His perception of
national interest and obedience to instructions from above may compel him to take a stance which to a
respondent may appear too personal and biased. It is likewise unreasonable to require Government
Prosecutors to defend themselves against counterclaims in the very same cases they are prosecuting.
As earlier stated, we do not suggest that a lawyer enjoys a special immunity from damage suits. However,
when he acts in the name of a client, he should not be sued on a counterclaim in the very same case he
has filed only as counsel and not as a party. Any claim for alleged damages or other causes of action
should be filed in an entirely separate and distinct civil action.
OSMUNDO G. RAMA, petitioner,
vs.
COURT OF APPEALS, et al, respondents.
During the incumbency of Rene Espina as provincial governor of Cebu, Osmundo G. Rama as vicegovernor and Pablo P. Garcia, Reynaldo M. Mendiola and Valerians S. Carillo as members of the
Sangguniang Panlalawigan, said officials adopted Resolution No. 990 which appropriated funds "for the
maintenance and repair of provincial roads and bridges and for the operation and maintenance of the
office of the provincial engineer and for other purposes." (L-44591, Rollo, pp. 34-37).
In said resolution, the provincial government of Cebu under the aforementioned officials, declared its
policy "to mechanize the maintenance and repair of all roads and bridges of the province (including
provincial roads and bridges receiving national aid "JJ"), to economize in the expenditure of its Road and
Bridge Fund for the maintenance and repair of provincial roads and bridges receiving national aid "JJ"
and to adopt a more comprehensive, systematic, efficient, progressive and orderly operation and
maintenance of the Office of the Provincial Engineer."
To implement said policy, the provincial board resolved to abolish around thirty positions * the salaries of
which were paid from the "JJ" Road and Bridge Fund thus doing away with the caminero (pick-shovel-

wheelbarrow) system. Consequently around 200 employees of the province were eased out of their
respective jobs and, to implement the mechanization program in the maintenance of roads and bridges,
the provincial government purchased heavy equipment worth P4,000,000.00. However, contrary to its
declared policy to economize the provincial administration later on hired around one thousand new
employees, renovated the office of the provincial engineer and provided the latter with a Mercedes-Benz
car (Decision in CA-G.R. No. 49328-R, L-44591, Rollo, p. 37).
Aggrieved by these turn of events, the employees whose positions were abolished filed separate petitions
for mandamus, damages and attorneys fees aimed at the annulment of Resolution No. 990, their
reinstatement and the recovery of damages The aforementioned provincial officials who, together with the
provincial auditor, provincial treasurer, provincial engineer and the province of Cebu, were named
respondents in said action, were sued "both in their official and personal" capacities as a result of their
alleged "unjust, oppressive, illegal and malicious' acts.
Proceeding now to resolve the issue, common to L-44484, L-44591 and L-44842, which is whether or not
Espina, Rama, Garcia, Mendiola and Carillo are personally liable for damages for adopting a resolution
which abolished positions to the detriment of the occupants thereof, this Court has held that, at least, in
principle, a public officer by virtue of his office alone, is not immune from damages in his personal
capacity arising from illegal acts done in bad faith. A different rule would sanction the use of public office
as a tool of oppression (Tabuena vs. Court of Appeals, L-16290, October 31, 1961, 3 SCRA 413).
We hold that the petitioners in the instant three cases are personally liable for damages because of their
precipitate dismissal of provincial employees through an ostensibly legal means.
The Court of Appeals, whose factual findings are binding on this Court, found that the provincial
employees concerned were "eased out because of their party affiliation." i.e., they belonged to the Liberal
Party whose presidential candidate then was Sergio Osmena Jr. (CA Decision in G.R. No. 49328-R, p. 6,
L-44591, Rollo, p. 38). Such act of the petitioners reflected their malicious intent to do away with the
followers of the rival political party so as to accommodate their own proteges who, it turned out, even
outnumbered the dismissed employees.
Indeed, municipal officers are liable for damages if they act maliciously or wantonly and if the work which
they perform is done rather to injure an individual than to discharge a public duty (56 Am. Jur. 2d 334,
citing Yearly V. Fink 43 Pa 212). As we have held in Vda de Laig vs. Court of Appeals, L-26882, April 5,
1978, 82 SCRA 294, 307-308, a public officer is civilly liable for failure to observe honesty and good faith
in the performance of their duties as public officers or for wilfully or negligently causing damage to another
(Article 20, Civil Code) or for wilfully causing loss or injury to another in a manner that is contrary to
morals, good customs and/or public policy (Article 21, New Civil Code).
Neither can petitioners shield themselves from liability by invoking the ruling in the cases of Carino vs.
Agricultural Credit and Cooperative Financing Administration L-23966, May 22, 1969, 28 SCRA 268. In
those cases, the erring public officials were sued in their official capacities whereas in the instant cases,
petitioners were specifically sued in their personal capacities.
For their part, the dismissed employees are entitled to damages because they have suffered a special
and peculiar injury from the wrongful act of which they complain (Mechem, A Treatise on the Law of Public
Offices and Officers, p. 391). It is an undeniable fact that the dismissed employees who were holding
such positions as foremen, watchmen and drivers, suffered the uncertainties of the unemployed when
they were plucked out of their positions. That not all of them testified as to the extent of damages they
sustained on account of their separation from their government jobs, cannot be used as a defense by the
petitioners. Suffice it to state that considering the positions they were holding, the dismissed employees
concerned belong to a low-salaried group, who, if deprived of wages would generally incur considerable
economic hardships.

Justice demands that they be recompensed for the predicament they were placed in, apart from the back
salaries which they are entitled to as a matter of right. We are inclined to agree that the amount of
P1,000.00 damages granted to each of them by the Court of Appeals was fixed by that court judiciously
and is a reasonable sum (Article 2216, Civil Code).
Petitioner Rama's protestations that when he eventually became the governor of Cebu, he reinstated
most of the dismissed employees through provincial board Resolution No. 392 (L-44484 Rollo, p. 16)
cannot erase the fact that he had a hand in the adoption of Resolution No. 990. His subsequent
benevolent act cannot sufficiently make up for the damage suffered by the dismissed employees during
their period of unemployment.
EUFEMIO T. CORREA, petitioner,
vs.
COURT OF FIRST INSTANCE OF BULACAN (BRANCH 11), et al, respondents.
On December 13, 1968, respondent Court rendered judgment in Civil Case No. 3621-M in favor of therein
plaintiffs (private respondents herein) and adversely against therein defendants Eufemio T. Correa
(petitioner herein) and Virgilio Sarmiento. The pertinent portions of the decision read as follows:
This Court finds that defendants Eufemio T. Correa and Virgilio Sarmiento,
municipal mayor and municipal treasurer of Norzagaray, Bulacan respectively,
should be ordered personally to pay the salaries which the plaintiffs failed to
receive by reason of their illegal removal from office until they are actually
reinstated.
xxx xxx xxx
WHEREFORE, judgment is hereby rendered:
1. Permanently enjoining the defendants from enforcing and/or implementing the
Administrative Order No. 1, Series of 1968;
2. Declaring the termination of the services of the plaintiffs illegal and of no legal
effect;
3. Ordering the defendant Eufemio T. Correa to reinstate the plaintiffs to their
former position as policemen in the Police Force of Norzagaray, Bulacan;
4. Ordering the defendants Eufemio T. Correa and Virgilio Sarmiento to pay,
jointly and severally to the plaintiff Juanito Sarmiento his salary for the period
beginning January 15, 1968, plaintiff Melanio Esteban his said for the period
beginning February 1, 1968; and plaintiffs Candido Cruz, Isabelo Saplala, Tomas
Palad; Antonio Ancheta, Antonio Silverio, Eligio Punzal and Celedonio Principe
their salaries for the period beginning January 23, 1968, until they are actually
reinstated to their former positions;
5. Ordering defendant Eufemio T. Correa and Virgilio Sarmiento to pay, jointly
and severally, the costs of this suit.
The aforesaid decision was affirmed by the Court of Appeals on March 22, 1976, and the motion for
reconsideration of the Appellate Court's decision was denied on May 11, 1976. On August 24, 1976, the
decision of the Court of Appeals became final and executory. 1

It is in connection with the efforts of the petitioner to quash the writ of execution issued to enforce the
aforestated final judgment that the present proceedings arose. Thus, on March 8, 1977, petitioner filed a
Motion to Quash the Writ of Execution and to Direct Execution to the Municipality of Norzagaray, Bulacan,
alleging that at the time the writ was served on him, he was no longer mayor of Norzagaray, Bulacan.
Petitioner invoked the principle that when judgment is rendered against an officer of the municipal
corporation who is sued in his official capacity for the payment of back salaries of officers illegally
removed, the judgment is binding upon the corporation, whether or not the same is included as party to
the action. 2
On April 22, 1977, respondent Court issued the Order denying the Motion to Quash Writ of Execution.
Petitioner thus came to this Court, maintaining that he could no longer be required to pay the back
salaries of the private respondents because payment on his part presupposes his continuance in office,
which is not the case.
The issue is whether or not respondent Court in denying the Motion to Quash the Writ of Execution acted
with grave abuse of discretion or with lack or excess of jurisdiction.
It cannot be denied that both the judgments of the Court of First Instance of Bulacan and of the Court of
Appeals categorically state that the liability of herein petitioner is personal. Thus, according to the trial
court, "Eufemio T. Correa and Virgilio Sarmiento, municipal mayor and municipal treasurer of Norzagaray,
Bulacan, respectively, should be ordered personally to pay the salaries which the plaintiffs failed to
receive by reason of their illegal removal from office until they are actually reinstated." (Emphasis
supplied).
In affirming the decision of the trial court, the Court of Appeals 5 ruled that "The defendants
are personally liable jointly and severally because they acted without justifiable cause (Nemenzo vs.
Sabillano, Sept. 7, 1968, 25 SCRA 1)." 6
In the discharge of governmental functions, "municipal corporations are responsible for the acts of its
officers, except if and when and only to the extent that, they have acted by authority of the law, and in
conformity with the requirements thereof." 8
A Public officer who commits a tort or other wrongful act, done in excess or beyond the scope of his duty,
is not protected by his office and is personally liable therefor lie any private individual. 9 This principle of
personal liability has been applied to cases where a public officer removes another officer or discharges
an employee wrongfully, the reported cases saying that by reason of non-compliance with the
requirements of law in respect to removal from office, the officials were acting outside their official
authority." 10
Respondent Court, therefore, did not commit grave abuse of discretion in denying petitioner's motion to
quash writ of execution. The writ was strictly in accordance with the terms of the judgment.
Section 39. Qualifications. (a) An elective local official must be a citizen of the Philippines; a registered voter in the
barangay, municipality, city, or province or, in the case of a member of the sangguniang
panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district where he
intends to be elected; a resident therein for at least one (1) year immediately preceding
the day of the election; and able to read and write Filipino or any other local language or
dialect.
(b) Candidates for the position of governor, vice-governor, or member of the sangguniang
panlalawigan, or mayor, vice-mayor or member of the sangguniang panlungsod of highly
urbanized cities must be at least twenty-one (21) years of age on election day.

(c) Candidates for the position of mayor or vice-mayor of independent component cities,
component cities, or municipalities must be at least twenty-one (21) years of age on
election day.
(d) Candidates for the position of member of the sangguniang panlungsod or
sangguniang bayan must be at least eighteen (18) years of age on election day.
(e) Candidates for the position of punong barangay or member of the sangguniang
barangay must be at least eighteen (18) years of age on election day.
(f) Candidates for the sangguniang kabataan must be at least fifteen (15) years of age
but not more than twenty-one (21) years of age on election day.
PEDRO GALLEGO, petitioner,
vs.
VICENTE VERRA, respondent.
Pedro Gallego is a native of Abuyog, Leyte. After studying in the Catarman Agricultural School in the
province of Samar, he was employed as a school teacher in the municipality of Catarman, Samar, as well
as in the municipalities of Burawen, Dulag, and Abuyog, province of Leyte, and school teacher of Abuyog,
Leyte, and presented his candidacy for municipal mayor of his home town, but was defeated. After his
defeat in that election, finding himself in debt and unemployed, he went to Mindanao in search of a job.
He first went to Oriental Misamis, but finding no work there he proceeded to the sitio of Kaato-an,
municipality of Malaybalay, Bukidnon, whereat he arrived on June 20, 1938, and immediately found
employment as nurseryman in the chichona plantation of the Bureau of Forestry. On July 30 of the same
year he returned to Abuyog because he had been offered an employment as teacher in the public school
of the barrio of Union, municipality of Sogod, Leyte; but as he did not accept the offer he returned to
Kaato-an on August 23, 1938, and resumed his employment there as nurseryman of the Bureau of
Forestry. He stayed in the chinchona plantation until he resigned in September 1940. But during the
period of his stay, there, his wife and children remained in Abuyog, and he visited them in the month of
August of the years 1938, and 1940. Altho the Government offered him a free house in the chinchona
plantation, he never took his family there. Neither did he avail himself of the offer of the Government of a
parcel of the hectares of land within the reservation of the chinchona plantation. He and his wife own real
property in Abuyog, part of which he acquired during his stay in Malaybalay.
Nevertheless, On October 1, 1938 he registered himself as an elector in precinct No. 14 of Lantapan,
municipality of Malaybalay, Bukidnon, and voted there in the election for assemblymen held in December,
1938. The trial court noted that in his voter's affidavit (exhibit B) he did not fill the blank space
corresponding to the length of time he had resided in Malaybalay. On January 20, 1940, he obtained and
paid for his residence certificate from the municipal treasurer of Malaybalay, in which certificate it was
stated that he had resided in said municipality for one year and a half.
Based upon the facts stated in the next preceding paragraph, namely, (1) registration as a voter, (2) his
having actually voted in Malaybalay in the 1938 election for assemblymen, and (3) his residence
certificate for 1940, the trial Court of Appeals declared that the herein petitioner Pedro Gallego had
acquired a residence or domicile of origin in the municipality of Malaybalay, Bukidnon, and had lost his
domicile of origin in the municipality of Abuyog, Leyte, at the time he was elected mayor of the latter
municipality, and, that, therefore, his election was void, following the decisions of this Court in the cases
of Tanseco vs. Arteche, 57 Phil., 227, and Nuval vs. Gutay, 52 Phil., 645.
The only question presented is whether or not Pedro Gallego had been resident of Abuyog for at one year
prior to December 10, 1940. That question may be approached from either of two angles: Did he lose his
domicile in Abuyog by the mere fact that he worked in Malaybalay as a government employee, registered
himself as a voter and voted there in the election for assemblymen in December, 1938, and secured his

residence certificate there for the year 1940; and assuming that he did, had he reacquired his domicile of
origin at least one year prior to his election as mayor of Abuyog on December 10, 1040?
The term "residence" as used in the election law is synonymous with "domicile" which imports not only
intention to reside in a fixed place but also personal presence in that place, coupled with conduct
indicative of such intention (Nuval vs. Guray, 52 Phil., 645). In order to acquire a domicile by choice, there
must concur (1) residence or bodily presence in the new locality, (2) an intention to remain there, and (3)
an intention to abandon the old domicile. In other words, there must be an animus non revertendi and
an animus manendi. The purpose to remain in or at the domicile of choice must be for an indefinite period
of time. The acts of the person must conform with his purpose. The change of residence must be
voluntary; the residence at the place chosen for the domicile must be actual; and to the fact of residence
there must be added the animus manendi. (17 am. Jur., section 16, pages 599-601.)
In the light of these principles, we are persuaded that the facts of this case weigh heavily against the
theory that the petitioner had lost his residence or domicile in Abuyog. We believe he did not reside in
Malaybalay with the intention of remaining there indefinitely and of not returning to Abuyog. He is a native
of Abuyog. Notwithstanding his periodic absences from there previous to 1937, when he was employed
as teacher in Samar, Agusan, and other municipalities of Leyte, he always returned there. In the year
1937 he resigned as a school teacher and presented his candidacy for the office of mayor of said
municipality. His departure therefrom after his defeat in that election was temporary and only for purpose
of looking for employment to make up for the financial drawback he had suffered as a result of his defeat
at the polls. After he had found employment in Malaybalay, he did take his wife and children thereto. He
bought the offer of a free house by the government. He bought a piece of land in Abuyog and did not avail
himself of the offer of the Government of ten hectares of land within the chichona reservation in
Malaybalay, where he worked as a nurseryman. During the short period of about two years he stayed in
Malaybalay as a government employee, he visited his home town and his family no less than three times
notwithstanding the great distance between the two places.
Applying the foregoing pronouncements to the facts of present case, we find sufficient ground for the
revocation of the judgment appealed from. Petitioner also contends that even assuming that he had lost
his residence or domicile in Abuyog, he reacquired it more than one year prior to December 10, 1940. In
support of that contention he invokes his letter or note, exhibit 9, addressed to "Varel"(Valeriano Tupa),
vice-president of the political faction to which petitioner belongs, in which note he announced his intention
to launch his candidacy again for municipal mayor of Abuyog as early as the month of May, 1939. But we
do not deem it necessary to pass upon said contention in view of the conclusion we have reached that the
petitioner did not lose his domicile of origin.
We might add that the manifest intent of the law in fixing a residence qualification is to exclude a stranger
or newcomer, unacquainted with the conditions and needs of a community and not identified with the
latter, from an elective office to serve that community; and when the evidence on the alleged lack of
residence qualification is weak or inconclusive and it clearly appears, as in the instant case, that the
purpose of the law would not be thwarted by upholding the right to the office, the will of the electorate
should be respected. Petitioner is a native of Abuyog, had run for the same office of municipal mayor of
said town in the election preceding the one in question, had only been absent therefrom for about two
years without losing contact with his townspeople and without intention of remaining and residing
indefinitely in the place of his employment; and he was elected with an overwhelming majority of nearly
800 votes in a third-class municipality. These considerations we cannot disregard without doing violence
to the will of the people of said town.
FORTUNATO R. PAMIL, petitioner-appellant,
vs.
HONORABLE VICTORINO C. TELERON, et al, respondents-appellees.
The novel question raised in this certiorari proceeding concerns the eligibility of an ecclesiastic to an
elective municipal position. Private respondent, Father Margarito R. Gonzaga, was, in 1971, elected to

the position of municipal mayor of Alburquerque, Bohol. 1 Therefore, he was duly proclaimed. A suit
for quo warranto was then filed by petitioner, himself an aspirant for the office, for his
disqualification 2 based on this Administrative Code provision: "In no case shall there be elected or
appointed to a municipal office ecclesiastics, soldiers in active service, persons receiving salaries or
compensation from provincial or national funds, or contractors for public works of the municipality." 3 The
suit did not prosper, respondent Judge sustaining the right of Father Gonzaga to the office of municipal
mayor. He ruled that such statutory ineligibility was impliedly repealed by the Election Code of 1971. The
matter was then elevated to this Tribunal by petitioner. It is his contention that there was no such implied
repeal, that it is still in full force and effect. Thus was the specific question raised.
There is no clear-cut answer from this Tribunal. After a lengthy and protracted deliberation, the Court is
divided on the issue. Seven members of the Court are of the view that the judgment should be affirmed as
the challenged provision is no longer operative either because it was superseded by the 1935
Constitution or repealed. Outside of the writer of this opinion, six other Justices are of this mind They are
Justices Teehankee, Muoz Palma Concepcion Jr., Santos, Fernandez, and Guerrero. For them, the
overriding principle of the supremacy of the Constitution or, at the very least, the repeal of such provision
bars a reversal. 4 The remaining five members of this Court, Chief Justice Castro, Justices Barredo,
Makasiar, Antonio, and Aquino, on the other hand, hold the position that such a prohibition against an
ecclesiastic running for elective office is not tainted with any constitutional infirmity.
The vote is thus indecisive. While five members of the Court constitute a minority, the vote of the
remaining seven does not suffice to render the challenged provision ineffective. Section 2175 of the
Revised Administrative Code, as far as ecclesiastics are concerned, must be accorded respect. The
presumption of validity calls for its application. Under the circumstances, certiorari lies. That is the
conclusion arrived at by the writer of this opinion, joined by Justice Concepcion Jr., Santos, Fernandez,
and Guerrero. They have no choice then but to vote for the reversal of the lower court decision and
declare ineligible respondent Father Margarito R. Gonzaga for the office of municipal mayor. With the
aforesaid five other members, led by the Chief Justice, entertaining no doubt as to his lack of eligibility,
this petition for certiorari must be granted.
Except for the dispositive part announcing the judgment of the Court, the remainder of this opinion sets
forth the reasons why there are constitutional objections to the continuing force and effectivity of Section
2175 as far as ecclesiastics are concerned.
1. The Revised Administrative Code was enacted in 1917. In the 1935 Constitution, as it is now under the
present Charter, it is explicitly declared: "No religious test shall be required for the exercise of civil or
political rights." 5 The principle of the paramount character of the fundamental law thus comes into play.
There are previous rulings to that effect. 6 The ban imposed by the Administrative Code cannot survive.
So the writer of this opinion would hold.
It would be an unjustified departure from a settled principle of the applicable construction of the provision
on what laws remain operative after 1935 if the plea of petitioner in this case were to be heeded. The
challenged Administrative Code provision, certainly insofar as it declares ineligible ecclesiastics to any
elective or appointive office, is, on its face, inconsistent with the religious freedom guaranteed by the
Constitution. To so exclude them is to impose a religious test.
As set forth at the outset, it is not even necessary to annul the challenged Administrative Code provision.
It is merely declared inoperative by virtue of the mandate of the 1935 Constitution, similarly found in the
present Charter.
5. Nonetheless, tie above view failed to obtain the necessary eight votes needed to give it binding force.
The attack on the continuing effectivity of Section 2175 having failed, it must be, as noted at the outset,
given full force and application.

WHEREFORE, the petition for certiorari is granted. The judgment a quo is reversed and set aside.
Respondent Gonzaga is hereby ordered immediately to vacate the mayoralty of the municipality of
Albuquerque, Bohol, there being a failure to elect.
PERFECTO FAYPON, petitioner,
vs.
ELISEO QUIRINO, respondent.
The ground for the quo warranto petition is the respondent's ineligibility for the office of Provincial
Governor of Ilocos Sur to which he was proclaimed elected by the provincial board of canvassers in the
elections held on 13 November 1951. It is alleged that he lacks the residence in the province, as required
in section 2071 of the Revised Administrative Code.
. That respondent-appellee was born in Caoayan, Ilocos Sur, in June, 1895; that he went
to the United States in 1919 to study and returned to the Philippines in 1923; that on his
return, he taught as professor in the University of the Philippines for four years. He
became owner and editor of the Intelligence, a newspaper publish in Manila. He went to
Iloilo as editor of the Iloilo Times. He became executive secretary and general manager
of the NEPA (National Economic Protectionism Association) from 1936 until December
31, 1951 (Exhibits G, G-1 to G-3). He was editor of Commerce, an official organ of the
Chamber of Commerce in Manila (Exhibits F, F-1 to F-11). He registered as a voter in
Pasay City in 1946-1947 (Exhibit A). He owns a house and resides at 55-11th Street,
Quezon City (Exhibits H-H-1).
There is no question then that he was born in the municipality of Caoayan, Ilocos Sur, in June, 1895;
came to Manila to pursue his studies; went to the United States for the same purpose; returned to the
Philippines; and engaged in the newspaper work in Manila, Iloilo and later on again in Manila. There is
also no question that the respondent was proclaimed by the provincial board of canvassers elected to the
office of Provincial Governor of Ilocos Sur with 49,017 votes cast for him as against 19,466 votes cast for
the petitioner.
The crucial and pivotal fact upon which the petitioner relies to have judgment of the respondent as voter
in Pasay City in 1946 and 1947. In several cases we have ruled that mere absence from one's residence
or origin domicile to pursue studies engage in business, or practice his avocation, is not sufficient to
constitute abandonment or loss of such residence. It is contended, however, that the respondent's
registration as voter in Pasay City in 1946 and 1947 in accordance with the provisions of the Constitution
and the laws on the subject, implies and means that he was a resident thereof during the six months
immediately preceding such registration and of the Philippines for one year; 1and that such being the case
he was ineligible for the office to which he was elected, because
No person shall be eligible to a provincial office unless at the time of the election he is
qualified voter of the province, has been a bona fide resident therein for at least one year
prior to the election and is not less than thirty years of age. 2
Did the respondent's registration as voter in Pasay City in 1946 and 1947 constitute abandonment or loss
of his residence of origin? The determination of a person's legal residence or domicile largely depends
upon intention which may be inferred from his acts, activities and utterances. The party who claims that a
person has abandoned or lost his residence of origin must show and prove preponderantly such
abandonment or loss. If we are to take literally the meaning of the voter's oath which he files with the
board of inspectors for his registration as such, there is no doubt that the respondent having registered in
1946 and 1947 as voter in Pasay City must have acquired residence in that city and must be deemed to
have abandoned his residence of origin. But in several decisions we have laid down the rule that in which
he is elected is not sufficient to constitute abandonment or loss of his residence of origin. In
Yra vs.Abano, 52 Phil., 380, the election of the protestee to the office of the municipal president of

Meycauayan, Bulacan, was upheld, notwithstanding the fact that he had registered as voter in Manila. In
Vivero vs. Murillo, 52 Phil., 694, where the protestee had registered as voter in the Municipality of
Buraruen, Leyte, we held that such registration had not caused the loss of his residence of origin (La Paz,
same province), where he has elected municipal president.
The rule laid down in the foregoing cases is not devoid of reason and justification. A citizen may leave the
place of his birth to look for "greener pastures," as the saying goes, to improve his lot, and that, of course,
includes study in other places, practice of his avocation, or engaging in business. When election is to be
held, the citizen who left his birthplace to improve his lot may desire to return to his native town to cast his
ballot but for professional or business reasons, or for any other reason, he may not be absent himself
from the place of his professional or business activities; so there he registers as voter as he has the
qualifications to be one and is not willing to give up or lose the opportunity to choose the officials who are
to run the government especially in national elections. Despite such registration, the animus revertendi to
his home, to his domicile or residence of origin, he has not forsaken him. This may be the explanation
why the registration of a voter in a place other than his residence of origin has not been deemed sufficient
to constitute abandonment or loss of such residence. It finds justification in the natural desire and longing
of every person to return to the place of birth. This strong feeling of attachment to the place of one's birth
must be overcome by positive proof of abandonment for another.
Counsel for the petitioner argues that in addition to other qualifications residence for at least one year in
the municipality were the municipal officer is elected, as provided for in section 2174 of the Revised
Administrative Code, is sufficient; whereas the residence requirement for a provincial officer such as that
of the provincial governor must be a bona fide residence in the province for at least one prior to his
election, and concludes that the rule laid down in the cases cited and invoked is not applicable to and
does not and cannot benefit the respondent. We fail to see the difference between the requirement of not
less than one year bona fide residence for provincial officers. If any inference is to be drawn from the
words "bona fide," it is that in the case of a municipal office in addition to other qualifications an actual
residence in the municipality for at least one year of a candidate for municipal office would be sufficient to
make him eligible for such office; whereas in the case of a provincial office in addition to other
qualifications a residence in good faith in the province for not less than one year of a candidate for
provincial office, although he may not actually be present therein, would be enough to make him eligible
for such office. But this would be a hair-splitting differentiation. The residence requirement for elective
provincial and municipal officials is the same; and the rule that a previous registration as voter of a
municipal mayor-elect in a municipality other than the one in which he is elected is no ground for
disqualifying him because of alleged loss or abandonment of his residence of origin in the municipality
where he is elected, applies with equal force to elective provincial officials.
JUAN G. FRIVALDO, petitioner,
vs.
COMMISSION ON ELECTIONS, and RAUL R. LEE, respondents.
Facts: Frivaldo filed his Certificate of Candidacy for Governor of Sorsogon on March 20, 1995. Three
days later, Lee filed a petition for cancellation of Frivaldos Certificate of Candidacy on the ground that
Frivaldo is not a Filipino citizen. The COMELEC 2nd division granted Lees petition. Frivaldo filed a Motion
for Reconsideration but was not acted upon by the COMELEC until after the May 8, 1995 elections so he
continued campaigning and was voted for on the said date. It was only on May 11, 1995 that the
COMELEC en banc affirmed the decision of the 2nd division. The results of the elections were that
Frivaldo got the highest number of votes while Lee, the second highest. Lee filed a supplemental petition
praying that he be declared Governor of Sorsogon. The COMELEC en banc indeed proclaimed Lee as
the winner on June 30, 1995 at 8:30 p.m. Frivaldo filed a petition for the annulment of Lees proclamation
as winner because he alleged that on June 30, 1995 at 2 p.m., he took his oath of allegiance as a Filipino
citizen, thereby repatriating himself. Therefore, there was no more legal impediment for him to be
governor. The COMELEC 1st division granted Frivaldos petition. Lees Motion for Reconsideration was
denied by the COMELEC en banc. Thus, the case went to the Supreme Court for a special action for

certiorari and preliminary injunction, reviewing the COMELEC 1 st divisions decision and the COMELEC
en bancs denial of the motion for reconsideration.
Issue: Whether or not Frivaldos repatriation was valid and legal, and if in the affirmative, whether or not it
may be given retroactive effect and from when the retroactivity took effect
Ruling: Frivaldos repatriation was valid and legal. He filed his application for repatriation on August 17,
1994, but the Special Committee on Naturalization was reactivated only on June 8, 1995. Rebutting Lees
allegation that the sudden reconstitution of the Special Committee was only for Frivaldos benefit, the
Solicitor General himself certified that ten other persons were repatriated aside from Frivaldo. As to when
a candidate for office has to be a citizen of the Philippines, the Supreme Court consulted Section 39 of
the Local Government Code, which states that an elective local official must be a citizen of the
Philippines and only that. It did not specify as to when the official must be a citizen. Giving the provision a
liberal as well as a literal interpretation (Section 39 of the Local Government Code speaks of
"Qualifications" of "ELECTIVE OFFICIALS", not of candidates), the Supreme Court took it to mean that an
official must be a citizen of the Philippines as of the time of his proclamation and on the day the law
mandates his term of office to begin. Since Frivaldo reacquired his Philippine citizenship on June 30,
1995, the day the term of office of governor began, he was already qualified to be Governor of Sorsogon.
But to remove all doubts on the issue, the Supreme Court ruled that his repatriation retroacted to the date
he filed his application for repatriation, that is, August 17, 1994. This is because P.D. 725, the law on
repatriation, is curative in nature.
Dissent: Justice Hilario Davide, Jr., does not agree with the ruling of the case for the following reasons: a)
Frivaldos repatriation was void because when the President reactivated the Special Committee on
Naturalization, he had already lost his authority to exercise legislative power, hence, only the Congress
can revive said Committee; b) assuming Frivaldos repatriation was valid, the words elective and
elected when describing an official mean two different things, the former being the nature of the office,
which requires the process of voting, and the latter refers to a victorious candidate for such an office,
therefore, it doesnt mean that the candidate must be a citizen of the Philippines on the day he assumes
office; c) still assuming Frivaldos repatriation is valid, P.D. 725 expressly provides that repatriation takes
effect only after taking the oath of allegiance of the Republic of the Philippines, hence, there should be no
retroactive effect; d) assuming that Frivaldos repatriation retroacted to the day of filing of the petition for
repatriation, the same could not be said insofar as the U.S. is concerned, of which he was a citizen,
because the Nationality Act of America provides that a person loses his U.S. citizenship by taking an oath
of allegiance to the foreign state, hence, it was only after Frivaldo took the oath of allegiance to the
Republic of the Philippines that he lost his American citizenship; e) the assertion that Frivaldo was
stateless is untenable because it is based on Frivaldos unproven, self-serving allegation, and that
informal renunciation is not a ground to lose U.S. citizenship; and f) just because the voters of Sorsogon
expressed their sovereign will for Frivaldo to be their governor doesnt mean that the Court must yield to
that will, setting aside not just the laws on qualifications of candidates and elective officials and
reacquisition of Philippine citizenship, but also the final and binding decisions of the Court affecting
Frivaldo.
ROGELIO M. TORAYNO SR., GENEROSO ELIGAN and JACQUELINE M. SERIO, petitioners,
vs.
COMMISSION ON ELECTIONS and VICENTE Y. EMANO, respondents.
During the 1995 elections, Vicente Y. Emano ran for, was elected, and proclaimed provincial
governor of Misamis Oriental. It was his third consecutive term as governor of the province. In his
Certificate of Candidacy dated March 12, 1995, his residence was declared to be in Tagoloan, Misamis
Oriental.
On June 14, 1997, while still the governor of Misamis Oriental, Emano executed a Voter Registration
Record in Cagayan de Oro City (geographically located in the Province of Misamis Oriental), a highly

urbanized city, in which he claimed 20 years of residence. On March 25, 1998, he filed his Certificate of
Candidacy for mayor of the city, stating therein that his residence for the preceding two years and five
months was at 1409 San Jose Street, Capistrano Subdivision, Gusa, Cagayan de Oro City.
Among those who ran for the mayorship of the city in 1998, along with Emano, was Erasmo B. Damasing,
counsel of herein petitioners. On May 15, 1998, Petitioners Rogelio M. Torayno Sr., Generoso Q. Eligan
and Jacqueline M. Serio, all residents of Cagayan de Oro City, filed a Petition before the Comelec,
docketed as SPA No. 98-298, in which they sought the disqualification of Emano as mayoral candidate,
on the ground that he had allegedly failed to meet the one-year residence requirement.
The pertinent provision sought to be enforced is Section 39 of the Local Government Code (LGC) of
1991,[18] which provides for the qualifications of local elective officials, as follows:
"SEC. 39. Qualifications. - (a) An elective local official must be a citizen of the Philippines; a registered
voter in the barangay, municipality, city, or province x x x where he intends to be elected; a resident
therein for at least one (1) year immediately preceding the day of the election; and able to read and write
Filipino or any other local language or dialect."
Generally, in requiring candidates to have a minimum period of residence in the area in which they
seek to be elected, the Constitution or the law intends to prevent the possibility of a "stranger or
newcomer unacquainted with the conditions and needs of a community and not identified with the latter
from [seeking] an elective office to serve that community." [19] Such provision is aimed at excluding
outsiders "from taking advantage of favorable circumstances existing in that community for electoral
gain."[20] Establishing residence in a community merely to meet an election law requirement defeats the
purpose of representation: to elect through the assent of voters those most cognizant and sensitive to the
needs of the community. This purpose is "best met by individuals who have either had actual residence in
the area for a given period or who have been domiciled in the same area either by origin or by choice." [21]
In the case at bar, the Comelec found that private respondent and his family had actually been
residing in Capistrano Subdivision, Gusa, Cagayan de Oro City, in a house he had bought in
1973. Furthermore, during the three terms (1988-1998) that he was governor of Misamis Oriental, he
physically lived in that city, where the seat of the provincial government was located. In June 1997, he
also registered as voter of the same city. Based on our ruling in Mamba-Perez, these facts indubitably
prove that Vicente Y. Emano was a resident of Cagayan de Oro City for a period of time sufficient to
qualify him to run for public office therein. Moreover, the Comelec did not find any bad faith on the part of
Emano in his choice of residence.
Petitioners put much emphasis on the fact that Cagayan de Oro City is a highly urbanized city whose
voters cannot participate in the provincial elections. Such political subdivisions and voting restrictions,
however, are simply for the purpose of parity in representation. The classification of an area as a highly
urbanized or independent component city, for that matter, does not completely isolate its residents,
politics, commerce and other businesses from the entire province -- and vice versa -- especially when the
city is located at the very heart of the province itself, as in this case.
Undeniably, Cagayan de Oro City was once an integral part of Misamis Oriental and remains a
geographical part of the province. Not only is it at the center of the province; more important, it is itself
the seat of the provincial government. As a consequence, the provincial officials who carry out their
functions in the city cannot avoid residing therein; much less, getting acquainted with its concerns and
interests. Vicente Y. Emano, having been the governor of Misamis Oriental for three terms and
consequently residing in Cagayan de Oro City within that period, could not be said to be a stranger or
newcomer to the city in the last year of his third term, when he decided to adopt it as his permanent place
of residence.
Similarly in the instant case, private respondent was actually and physically residing in Cagayan de
Oro City while discharging his duties as governor of Misamis Oriental. He owned a house in the city and
resided there together with his family. He even paid his 1998 community tax and registered as a voter
therein. To all intents and purposes of the Constitution and the law, he is a resident of Cagayan de Oro
City and eligible to run for mayor thereof.

To petitioners' argument that Emano could not have continued to qualify as provincial governor if he
was indeed a resident of Cagayan de Oro City, we respond that the issue before this Court is whether
Emano's residence in the city qualifies him to run for and be elected as mayor, not whether he could have
continued sitting as governor of the province. There was no challenge to his eligibility to continue running
the province; hence, this Court cannot make any pronouncement on such issue. Considerations of due
process prevent us from adjudging matters not properly brought to us. On the basis, however, of the facts
proven before the Comelec, we hold that he has satisfied the residence qualification required by law for
the mayorship of the city.
We stress that the residence requirement is rooted in the desire that officials of districts or localities
be acquainted not only with the metes and bounds of their constituencies but, more important, with the
constituents themselves -- their needs, difficulties, aspirations, potentials for growth and development,
and all matters vital to their common welfare. The requisite period would give candidates the opportunity
to be familiar with their desired constituencies, and likewise for the electorate to evaluate the former's
qualifications and fitness for the offices they seek.
In other words, the actual, physical and personal presence of herein private respondent in Cagayan
de Oro City is substantial enough to show his intention to fulfill the duties of mayor and for the voters to
evaluate his qualifications for the mayorship. Petitioners' very legalistic, academic and technical
approach to the residence requirement does not satisfy this simple, practical and common-sense
rationale for the residence requirement.
There is no question that private respondent was the overwhelming choice of the people of Cagayan de
Oro City. He won by a margin of about 30,000 votes.[24] Thus, we find it apt to reiterate the principle that
the manifest will of the people as expressed through the ballot must be given fullest effect. In case of
doubt, political laws must be interpreted to give life and spirit to the popular mandate. [25]
TEODULO M. COQUILLA, petitioner,
vs.
THE HON. COMMISSION ON ELECTIONS and MR. NEIL M. ALVAREZ, respondents.
Petitioner Coquilla was born on February 17, 1938 of Filipino parents in Oras, Eastern Samar. He grew up
and resided there until 1965, when he joined the United States Navy. He was subsequently naturalized as
a U.S. citizen.2 From 1970 to 1973, petitioner thrice visited the Philippines while on leave from the U.S.
Navy.3 Otherwise, even after his retirement from the U.S. Navy in 1985, he remained in the United States.
On October 15, 1998, petitioner came to the Philippines and took out a residence certificate, although he
continued making several trips to the United States, the last of which took place on July 6, 2000 and
lasted until August 5, 2000.4Subsequently, petitioner applied for repatriation under R.A. No. 8171 5 to the
Special Committee on Naturalization. His application was approved on November 7, 2000, and, on
November 10, 2000, he took his oath as a citizen of the Philippines. Petitioner was issued Certificate of
Repatriation No. 000737 on November 10, 2000 and Bureau of Immigration Identification Certificate No.
115123 on November 13, 2000.
On November 21, 2000, petitioner applied for registration as a voter of Butnga, Oras, Eastern Samar. His
application was approved by the Election Registration Board on January 12, 2001. 6 On February 27,
2001, he filed his certificate of candidacy stating therein that he had been a resident of Oras, Eastern
Samar for "two (2) years."7
On March 5, 2001, respondent Neil M. Alvarez, who was the incumbent mayor of Oras and who was
running for reelection, sought the cancellation of petitioners certificate of candidacy on the ground that
the latter had made a material misrepresentation in his certificate of candidacy by stating that he had
been a resident of Oras for two years when in truth he had resided therein for only about six months since
November 10, 2000, when he took his oath as a citizen of the Philippines.

On the merits, the question is whether petitioner had been a resident of Oras, Eastern Samar at least one
(1) year before the elections held on May 14, 2001 as he represented in his certificate of candidacy. We
find that he had not.
First, 39(a) of the Local Government Code (R.A No. 7160) provides:
Qualifications. - (a) An elective local official must be a citizen of the Philippines; a
registered voter in the barangay, municipality, city, or province or, in the case of a
member of the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang
bayan, the district where he intends to be elected; a resident therein for at least one (1)
year immediately preceding the day of the election; and able to read and write Filipino or
any other local language or dialect. (Emphasis added)
The term "residence" is to be understood not in its common acceptation as referring to "dwelling" or
"habitation,"21 but rather to "domicile" or legal residence,22 that is, "the place where a party actually or
constructively has his permanent home, where he, no matter where he may be found at any given time,
eventually intends to return and remain (animus manendi)."23 A domicile of origin is acquired by every
person at birth. It is usually the place where the childs parents reside and continues until the same is
abandoned by acquisition of new domicile (domicile of choice). 24
In the case at bar, petitioner lost his domicile of origin in Oras by becoming a U.S. citizen after enlisting in
the U.S. Navy in 1965. From then on and until November 10, 2000, when he reacquired Philippine
citizenship, petitioner was an alien without any right to reside in the Philippines save as our immigration
laws may have allowed him to stay as a visitor or as a resident alien.
Indeed, residence in the United States is a requirement for naturalization as a U.S. citizen.
In Caasi v. Court of Appeals,25 this Court ruled that immigration to the United States by virtue of a
"greencard," which entitles one to reside permanently in that country, constitutes abandonment of
domicile in the Philippines. With more reason then does naturalization in a foreign country result in an
abandonment of domicile in the Philippines.
ABRAHAM KAHLIL B. MITRA, Petitioner,
vs.
COMMISSION ON ELECTIONS, et al, Respondents.
When his COC for the position of Governor of Palawan was declared cancelled, Mitra was the incumbent
Representative of the Second District of Palawan. This district then included, among other territories, the
Municipality of Aborlan and Puerto Princesa City. He was elected Representative as a domiciliary of
Puerto Princesa City, and represented the legislative district for three (3) terms immediately before the
elections of 2010.7
On March 26, 2007 (or before the end of Mitras second term as Representative), Puerto Princesa City
was reclassified as a "highly urbanized city" and thus ceased to be a component city of the Province of
Palawan. The direct legal consequence of this new status was the ineligibility of Puerto Princesa City
residents from voting for candidates for elective provincial officials. 8
On March 20, 2009, with the intention of running for the position of Governor, Mitra applied for the transfer
of his Voters Registration Record from Precinct No. 03720 of Brgy. Sta. Monica, Puerto Princesa City, to
Sitio Maligaya,Brgy. Isaub, Municipality of Aborlan, Province of Palawan. He subsequently filed his COC
for the position of Governor of Palawan as a resident of Aborlan. 9

Soon thereafter, respondents Antonio V. Gonzales and Orlando R. Balbon, Jr. (the respondents) filed a
petition to deny due course or to cancel Mitras COC.10 They essentially argued that Mitra remains a
resident of Puerto Princesa City who has not yet established residence in Aborlan, and is therefore not
qualified to run for Governor of Palawan. Mitra insisted in his Answer that he has successfully abandoned
Puerto Princesa City as his domicile of origin, and has established a new domicile in Aborlan since
2008.11
Under the evidentiary situation of the case, there is clearly no basis for the conclusion that Mitra
deliberately attempted to mislead the Palawan electorate.
From the start, Mitra never hid his intention to transfer his residence from Puerto Princesa City to Aborlan
to comply with the residence requirement of a candidate for an elective provincial office. Republic Act No.
7160, otherwise known as the Local Government Code, does not abhor this intended transfer of
residence, as its Section 39 merely requires an elective local official to be a resident of the local
government unit where he intends to run for at least one (1) year immediately preceding the day of the
election. In other words, the law itself recognizes implicitly that there can be a change of domicile or
residence, but imposes only the condition that residence at the new place should at least be for a year. Of
course, as a continuing requirement or qualification, the elected official must remain a resident there for
the rest of his term.
Mitras domicile of origin is undisputedly Puerto Princesa City. For him to qualify as Governor in light of
the relatively recent change of status of Puerto Princesa City from a component city to a highly urbanized
city whose residents can no longer vote for provincial officials he had to abandon his domicile of origin
and acquire a new one within the local government unit where he intended to run; this would be his
domicile of choice. To acquire a domicile of choice, jurisprudence, which the COMELEC correctly invoked,
requires the following:
(1) residence or bodily presence in a new locality;
(2) an intention to remain there; and
(3) an intention to abandon the old domicile.63
Mitra has established business interests in Aborlan, a fact which the respondents have never disputed.
He was then the incumbent three-term Representative who, as early as 2008, already entertained
thoughts of running for Governor in 2010. It is not disputed, too, that Mitra has started the construction of
a house on a lot he bought from Rexter Temple; the site is very near the Maligaya Feedmill that he leased
from its owner, Carme Caspe.
While Mitra might not have stayed in Aborlan nor in Palawan for most of 2008 and 2009 because his
office and activities as a Representative were in Manila, it is hardly credible that he would not be seen in
Aborlan. In this regard, the sworn statement of the Punong Barangay of Isaub, Aborlan should carry a lot
more weight than the statements of punong barangay officials elsewhere since it is the business of a
punong barangay to know who the residents are in his own barangay. The COMELEC apparently missed
all these because it was fixated on the perceived coldness and impersonality of Mitras dwelling.
In considering the residency issue, the COMELEC practically focused solely on its consideration of Mitras
residence at Maligaya Feedmill, on the basis of mere photographs of the premises. In the COMELECs
view (expressly voiced out by the Division and fully concurred in by the En Banc), the Maligaya Feedmill
building could not have been Mitras residence because it is cold and utterly devoid of any indication of
Mitras personality and that it lacks loving attention and details inherent in every home to make it ones
residence.75 This was the main reason that the COMELEC relied upon for its conclusion.

Such assessment, in our view, based on the interior design and furnishings of a dwelling as shown by and
examined only through photographs, is far from reasonable; the COMELEC thereby determined the
fitness of a dwelling as a persons residence based solely on very personal and subjective assessment
standards when the law is replete with standards that can be used. Where a dwelling qualifies as a
residence i.e., the dwelling where a person permanently intends to return to and to remain 76 his or her
capacity or inclination to decorate the place, or the lack of it, is immaterial.
With this analysis and conclusion in mind, we come to the critical question of whether Mitra deliberately
misrepresented that his residence is in Aborlan to deceive and mislead the people of the Province of
Palawan.
We do not believe that he committed any deliberate misrepresentation given what he knew of his transfer,
as shown by the moves he had made to carry it out. From the evidentiary perspective, we hold that the
evidence confirming residence in Aborlan decidedly tilts in Mitras favor; even assuming the worst for
Mitra, the evidence in his favor cannot go below the level of an equipoise, i.e., when weighed, Mitras
evidence of transfer and residence in Aborlan cannot be overcome by the respondents evidence that he
remained a Puerto Princesa City resident. Under the situation prevailing when Mitra filed his COC, we
cannot conclude that Mitra committed any misrepresentation, much less a deliberate one, about his
residence.
The respondents significantly ask us in this case to adopt the same faulty approach of using subjective
norms, as they now argue that given his stature as a member of the prominent Mitra clan of Palawan, and
as a three term congressman, it is highly incredible that a small room in a feed mill has served as his
residence since 2008.77
We reject this suggested approach outright for the same reason we condemned the COMELECs use of
subjective non-legal standards. Mitras feed mill dwelling cannot be considered in isolation and separately
from the circumstances of his transfer of residence, specifically, his expressed intent to transfer to a
residence outside of Puerto Princesa City to make him eligible to run for a provincial position; his
preparatory moves starting in early 2008; his initial transfer through a leased dwelling; the purchase of a
lot for his permanent home; and the construction of a house in this lot that, parenthetically, is adjacent to
the premises he leased pending the completion of his house. These incremental moves do not offend
reason at all, in the way that the COMELECs highly subjective non-legal standards do.
Citing jurisprudence, we began this ponencia with a discussion of the purpose of the residency
requirement under the law. By law, this residency can be anywhere within the Province of Palawan,
except for Puerto Princesa City because of its reclassification as a highly urbanized city. Thus, residency
in Aborlan is completely consistent with the purpose of the law, as Mitra thereby declared and proved his
required physical presence in the Province of Palawan.
We also consider that even before his transfer of residence, he already had intimate knowledge of the
Province of Palawan, particularly of the whole 2nd legislative district that he represented for three terms.
For that matter, even the respondents themselves impliedly acknowledged that the Mitras, as a family,
have been identified with elective public service and politics in the Province of Palawan. 78 This means to
us that Mitra grew up in the politics of Palawan.
We can reasonably conclude from all these that Mitra is not oblivious to the needs, difficulties, aspirations,
potential for growth and development, and all matters vital to the common welfare of the constituency he
intends to serve. Mitra who is no stranger to Palawan has merely been compelled after serving three
terms as representative of the congressional district that includes Puerto Princesa City and Aborlan by
legal developments to transfer his residence to Aborlan to qualify as a Province of Palawan voter. To put it
differently, were it not for the reclassification of Puerto Princesa City from a component city to a highly
urbanized city, Mitra would not have encountered any legal obstacle to his intended gubernatorial bid
based on his knowledge of and sensitivity to the needs of the Palawan electorate.

This case, incidentally, is not the first that we have encountered where a former elective official had to
transfer residence in order to continue his public service in another political unit that he could not legally
access, as a candidate, without a change of residence.
Mitra has been proclaimed winner in the electoral contest and has therefore the mandate of the electorate
to serve
We have applied in past cases the principle that the manifest will of the people as expressed through the
ballot must be given fullest effect; in case of doubt, political laws must be interpreted to give life and spirit
to the popular mandate.83Thus, we have held that while provisions relating to certificates of candidacy are
in mandatory terms, it is an established rule of interpretation as regards election laws, that mandatory
provisions, requiring certain steps before elections, will be construed as directory after the elections, to
give effect to the will of the people.84
With the conclusion that Mitra did not commit any material misrepresentation in his COC, we see no
reason in this case to appeal to the primacy of the electorates will. We cannot deny, however, that the
people of Palawan have spoken in an election where residency qualification had been squarely raised
and their voice has erased any doubt about their verdict on Mitras qualifications.
Section 40. Disqualifications. - The following persons are disqualified from running for any elective local
position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an
offense punishable by one (1) year or more of imprisonment, within two (2) years after
serving sentence;
(b) Those removed from office as a result of an administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or non-political cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired the right to
reside abroad and continue to avail of the same right after the effectivity of this Code; and
(g) The insane or feeble-minded.
RA 8295, Section 4. Disqualification. In addition to the disqualifications mentioned in Secs. 12 and 68
of the Omnibus Election Code and Sec. 40 of Republic Act No. 7160, otherwise known as the Local
Government Code, whenever the evidence of guilt is strong, the following persons are disqualified to run
in a special election called to fill the vacancy in an elective office, to wit:
a) Any elective official who has resigned from his office by accepting an appointive office
or for whatever reason which he previously occupied but has caused to become vacant
due to his resignation; and
b) Any person who, directly or indirectly, coerces, bribes, threatens, harasses, intimidates
or actually causes, inflicts or produces any violence, injury, punishment, torture, damage,
loss or disadvantage to any person or persons aspiring to become a candidate or that of
the immediate member of his family, his honor or property that is meant to eliminate all
other potential candidates.

VIRGINIA C. HANRIEDER, Complainant,

vs.
CELIA A. DE RIVERA, Court Interpreter, Respondent.
This is an administrative complaint against Celia A. de Rivera, Interpreter of the Regional Trial Court of
Quezon City, Branch 100, for Serious Misconduct, Willful Refusal to Pay Just Debt, and Conviction for an
Offense Involving Moral Turpitude, relative to Criminal Cases Nos. 043676 to 043690 for fifteen (15)
counts of violation of Batas Pambansa Blg. 22 (B.P. 22), entitled "People of the Philippines vs. Celia De
Rivera."
In a Complaint-Affidavit1 dated 31 August 2004, complainant Virginia Hanrieder alleged that in a decision
dated 27 November 2002 of the Metropolitan Trial Court (MeTC) of Quezon City, Branch 40 in the criminal
cases, respondent had been found guilty beyond reasonable doubt of fourteen (14) counts of B.P. 22
violation and adjudged civilly liable for the fifteen (15) checks subject of the charges. It appeared that in
1997, respondent had issued the following Banco Filipino checks payable to the order of complainant, all
of which were dishonored for lack of sufficient funds or credits.
A fine had also been imposed on respondent without any provision for subsidiary imprisonment in case of
insolvency. Despite the finality of the decision, according to complainant she had not been able to collect
any amount from respondent, except the cash bail bond in the amount of P10,000.00. In addition,
respondent did not pay the fine and even opposed the release of the cash bond into complainants
custody as partial satisfaction of the adjudged civil liability.2
Complainant further alleged that the writ of execution issued by the trial court could not be enforced as
the sheriff could not levy upon any cash or property of respondent. Consequently, the sheriff had made an
arrangement with respondent for the latter to pay the amount of P500.00 monthly. Notwithstanding, this
respondent failed to comply.3
Complainant thus prayed that respondent be dismissed from service and that all of her retirement,
termination, and unused leave benefits in the amount sufficient to repay her debts plus interest be
released to complainant.4
In her Comment5 dated 26 October 2004, respondent asserted that her failure to pay her civil obligation
was not prompted by bad faith or willful intention to evade a responsibility. She pointed out that her takehome pay wasP1,500.00 every pay day as her salary was saddled with deductions for loans that she had
obtained to support her family. Purportedly, she was hard-pressed to make both ends meet. Her monthly
income as court personnel allegedly was not sufficient to cover the daily expenses of her family
composed of her husband, four children, and an ailing mother who were all dependent on her.6
In addition, she asserted that her conviction for violation of B.P. 22 cannot be characterized as
misconduct so gross in character as to render her morally unfit to hold her position since the same was
not committed in her professional capacity.7
It appears that the OCA failed to take into account respondents having been adjudged guilty of several
counts of B.P. 22 violation when it recommended that she be merely suspended. It might seem that the
issuance of the bouncing checks is but a component of respondents general failure to pay her just debts
to complainant. But since issuing a bouncing check for whatever purpose is in itself a criminal offense,
such act should be considered and appreciated separately from the failure to pay just debts.
Finally, anent the second charge, the Administrative Code of 1987 provides that conviction for a crime
involving moral turpitude is a ground for disciplinary action. 19 The Uniform Rules on Administrative Cases
in the Civil Service states that conviction for a crime involving moral turpitude is a grave offense and upon
the first offense, the penalty of dismissal must be meted out. 20 In the case of Re: Conviction of Imelda B.
Fortus, Clerk III, RTC Br. 40, Calapan City for the Crime of Violation of B.P. 22, the Court characterized

the violation of B.P. 22 as a crime involving moral turpitude. 21 It is clear therefore that respondent should
be dismissed from service for having been convicted by final judgment 22 of B.P. 22 violations. As in the
previously cited case, however, respondent may reenter the government service if she can prove that she
is fit to serve once again.23
Indeed, it is worthy of note that respondent violated B.P. 22 not once or twice, but at least 14 times. The
individual amount for each check may have been relatively small, ranging from P833.00 to P4,400.00, yet
the sheer number of instances that respondent violated B.P. 22 cannot simply be ignored, especially
considering the moral turpitude dimension of her acts.
EDGAR Y. TEVES, Petitioner,
vs.
THE COMMISSION ON ELECTIONS and HERMINIO G. TEVES, Respondents.
Petitioner was a candidate for the position of Representative of the 3rd legislative district of Negros
Oriental during the May 14, 2007 elections. On March 30, 2007, respondent Herminio G. Teves filed a
petition to disqualify2 petitioner on the ground that in Teves v. Sandiganbayan, 3 he was convicted of
violating Section 3(h), Republic Act (R.A.) No. 3019, or the Anti-Graft and Corrupt Practices Act, for
possessing pecuniary or financial interest in a cockpit, which is prohibited under Section 89(2) of the
Local Government Code (LGC) of 1991, and was sentenced to pay a fine of P10,000.00. Respondent
alleged that petitioner is disqualified from running for public office because he was convicted of a crime
involving moral turpitude which carries the accessory penalty of perpetual disqualification from public
office.4 The case was docketed as SPA No. 07-242 and assigned to the COMELECs First Division.
On May 11, 2007, the COMELEC First Division disqualified petitioner from running for the position of
member of House of Representatives and ordered the cancellation of his Certificate of Candidacy.5
The fact that petitioner lost in the congressional race in the May 14, 2007 elections did not effectively
moot the issue of whether he was disqualified from running for public office on the ground that the crime
he was convicted of involved moral turpitude. It is still a justiciable issue which the COMELEC should
have resolved instead of merely declaring that the disqualification case has become moot in view of
petitioners defeat.
Further, there is no basis in the COMELECs findings that petitioner is eligible to run again in the 2010
elections because his disqualification shall be deemed removed after the expiration of a period of five
years from service of the sentence. Assuming that the elections would be held on May 14, 2010, the
records show that it was only on May 24, 2005 when petitioner paid the fine of P10,000.00 he was
sentenced to pay in Teves v. Sandignbayan.8 Such being the reckoning point, thus, the five-year
disqualification period will end only on May 25, 2010. Therefore he would still be ineligible to run for public
office during the May 14, 2010 elections.
Hence, it behooves the Court to resolve the issue of whether or not petitioners violation of Section 3(h),
R.A. No. 3019 involves moral turpitude.1avvphi1
Section 12 of the Omnibus Election Code reads:
Sec. 12. Disqualifications. - Any person who has been declared by competent authority insane or
incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion, or for any
offense for which he has been sentenced to a penalty of more than eighteen months, or for a crime
involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has
been given plenary pardon or granted amnesty.lawphil.net
The disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by
competent authority that said insanity or incompetence had been removed or after the expiration of a

period of five years from his service of sentence, unless within the same period he again becomes
disqualified. (Emphasis supplied)
Moral turpitude has been defined as everything which is done contrary to justice, modesty, or good
morals; an act of baseness, vileness or depravity in the private and social duties which a man owes his
fellowmen, or to society in general.9
Section 3(h) of R.A. 3019 of which petitioner was convicted, reads:
Sec. 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already
penalized by existing law, the following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful:
xxxx
(h) Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in
connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the
Constitution or by any law from having any interest.
The essential elements of the violation of said provision are as follows: 1) The accused is a public officer;
2) he has a direct or indirect financial or pecuniary interest in any business, contract or transaction; 3) he
either: a) intervenes or takes part in his official capacity in connection with such interest, or b) is prohibited
from having such interest by the Constitution or by law.10
Thus, there are two modes by which a public officer who has a direct or indirect financial or pecuniary
interest in any business, contract, or transaction may violate Section 3(h) of R.A. 3019. The first mode is
when the public officer intervenes or takes part in his official capacity in connection with his financial or
pecuniary interest in any business, contract, or transaction. The second mode is when he is prohibited
from having such an interest by the Constitution or by law.11
In Teves v. Sandiganbayan,12 petitioner was convicted under the second mode for having pecuniary or
financial interest in a cockpit which is prohibited under Sec. 89(2) of the Local Government Code of 1991.
However, conviction under the second mode does not automatically mean that the same involved moral
turpitude. A determination of all surrounding circumstances of the violation of the statute must be
considered. Besides, moral turpitude does not include such acts as are not of themselves immoral but
whose illegality lies in their being positively prohibited, as in the instant case.
This guideline nonetheless proved short of providing a clear-cut solution, for in "International Rice
Research Institute v. NLRC, the Court admitted that it cannot always be ascertained whether moral
turpitude does or does not exist by merely classifying a crime as malum in se or as malum prohibitum.
There are crimes which are mala in se and yet but rarely involve moral turpitude and there are crimes
which involve moral turpitude and are mala prohibita only. In the final analysis, whether or not a crime
involves moral turpitude is ultimately a question of fact and frequently depends on all the circumstances
surrounding the violation of the statute. (Emphasis supplied)1awphi1
Applying the foregoing guidelines, we examined all the circumstances surrounding petitioners conviction
and found that the same does not involve moral turpitude.
First, there is neither merit nor factual basis in COMELECs finding that petitioner used his official capacity
in connection with his interest in the cockpit and that he hid the same by transferring the management to
his wife, in violation of the trust reposed on him by the people.

Second, while possession of business and pecuniary interest in a cockpit licensed by the local
government unit is expressly prohibited by the present LGC, however, its illegality does not mean that
violation thereof necessarily involves moral turpitude or makes such possession of interest inherently
immoral. Under the old LGC, mere possession by a public officer of pecuniary interest in a cockpit was
not among the prohibitions.
Lastly, it may be argued that having an interest in a cockpit is detrimental to public morality as it tends to
bring forth idlers and gamblers, hence, violation of Section 89(2) of the LGC involves moral turpitude.
Suffice it to state that cockfighting, or sabong in the local parlance, has a long and storied tradition in our
culture and was prevalent even during the Spanish occupation. 19 While it is a form of gambling, the
morality thereof or the wisdom in legalizing it is not a justiciable issue.
WILMER GREGO, petitioner,
vs.
COMMISSION ON ELECTIONS and HUMBERTO BASCO, respondents.
On October 31, 1981, Basco was removed from his position as Deputy Sheriff by no less than this Court
upon a finding of serious misconduct in an administrative complaint lodged by a certain Nena Tordesillas.
Subsequently, Basco ran as a candidate for Councilor in the Second District of the City of Manila during
the January 18, 1988, local elections. He won and, accordingly, assumed office.
After his term, Basco sought re-election in the May 11, 1992 synchronized national elections. Again, he
succeeded in his bid and he was elected as one of the six (6) City Councilors. However, his victory this
time did not remain unchallenged. In the midst of his successful re-election, he found himself besieged by
lawsuits of his opponents in the polls who wanted to dislodge him from his position.
One such case was a petition for quo warranto 3 filed before the COMELEC by Cenon Ronquillo, another
candidate for councilor in the same district, who alleged Basco's ineligibility to be elected councilor on the
basis of theTordesillas ruling. At about the same time, two more cases were also commenced by Honorio
Lopez II in the Office of the Ombudsman and in the Department of Interior and Local Government. 4 All
these challenges were, however, dismissed, thus, paving the way for Basco's continued stay in office.
Despite the odds previously encountered, Basco remained undaunted and ran again for councilor in the
May 8, 1995, local elections seeking a third and final term. Once again, he beat the odds by emerging
sixth in a battle for six councilor seats. As in the past, however, his right to office was again contested. On
May 13, 1995, petitioner Grego, claiming to be a registered voter of Precinct No. 966, District II, City of
Manila, filed with the COMELEC a petition for disqualification, praying for Basco's disqualification, for the
suspension of his proclamation, and for the declaration of Romualdo S. Maranan as the sixth duly elected
Councilor of Manila's Second District.
On the same day, the Chairman of the Manila City Board of Canvassers (BOC) was duly furnished with a
copy of the petition. The other members of the BOC learned about this petition only two days later.
The COMELEC conducted a hearing of the case on May 14, 1995, where it ordered the parties to submit
simultaneously their respective memoranda.
Before the parties could comply with this directive, however, the Manila City BOC proclaimed Basco on
May 17, 1995, as a duly elected councilor for the Second District of Manila, placing sixth among several
candidates who vied for the seats. 5 Basco immediately took his oath of office before the Honorable Ma.
Ruby Bithao-Camarista, Presiding Judge, Metropolitan Trial Court, Branch I, Manila.

In view of such proclamation, petitioner lost no time in filing an Urgent Motion seeking to annul what he
considered to be an illegal and hasty proclamation made on May 17, 1995, by the Manila City BOC. He
reiterated Basco's disqualification and prayed anew that candidate Romualdo S. Maranan be declared the
winner. As expected, Basco countered said motion by filing his Urgent Opposition to: Urgent Motion (with
Reservation to Submit Answer and/or Motion to Dismiss Against Instant Petition for Disqualification with
Temporary Restraining Order).
I. Does Section 40 (b) of Republic Act No. 7160 apply retroactively to those removed
from office before it took effect on January 1, 1992?
Section 40 (b) of the Local Government Code under which petitioner anchors Basco's alleged
disqualification to run as City Councilor states:
Sec. 40. Disqualifications. The following persons are disqualified from running
for any elective local position:
xxx xxx xxx
(b) Those removed from office as a result of an administrative case;
Our refusal to give retroactive application to the provision of Section 40 (b) is already a settled issue and
there exist no compelling reasons for us to depart therefrom.
II. Did private respondent's election to office as City Councilor of Manila in the 1988,
1992 and 1995 elections wipe away and condone the administrative penalty against him,
thus restoring his eligibility for public office?
At first glance, there seems to be a prima facie semblance of merit to petitioner's argument. However, the
issue of whether or not Basco's triple election to office cured his alleged ineligibility is actually beside the
point because the argument proceeds on the assumption that he was in the first place disqualified when
he ran in the three previous elections. This assumption, of course, is untenable considering that Basco
was NOT subject to any disqualification at all under Section 40 (b) of the Local Government Code which,
as we said earlier, applies only to those removed from office on or after January 1, 1992. In view of the
irrelevance of the issue posed by petitioner, there is no more reason for the Court to still dwell on the
matter at length.
Anent Basco's alleged circumvention of the prohibition in Tordesillas against reinstatement to any position
in the national or local government, including its agencies and instrumentalities, as well as governmentowned or controlled corporations, we are of the view that petitioner's contention is baseless. Neither does
petitioner's argument that the term "any position" is broad enough to cover without distinction both
appointive and local positions merit any consideration.
Contrary to petitioner's assertion, the Tordesillas decision did not bar Basco from running for any elective
position. As can be gleaned from the decretal portion of the said decision, the Court couched the
prohibition in this wise:
. . . AND WITH PREJUDICE TO REINSTATEMENT TO ANY POSITION IN THE
NATIONAL OR LOCAL GOVERNMENT, INCLUDING ITS AGENCIES AND
INSTRUMENTALITIES, OR GOVERNMENT-OWNED OR CONTROLLED
CORPORATIONS.

In this regard, particular attention is directed to the use of the term "reinstatement." Under the former Civil
Service Decree, 16 the law applicable at the time Basco, a public officer, was administratively dismissed
from office, the term "reinstatement" had a technical meaning, referring only to an appointive position.
In light of these definitions, there is, therefore, no basis for holding that Basco is likewise barred from
running for an elective position inasmuch as what is contemplated by the prohibition in Tordesillas is
reinstatement to an appointive position.
IV. May Romualdo S. Maranan, a seventh placer, be legally declared a winning
candidate?
Obviously, he may not be declared a winner. In the first place, Basco was a duly qualified candidate
pursuant to our disquisition above. Furthermore, he clearly received the winning number of votes which
put him in sixth place. Thus, petitioner's emphatic reference to Labo v. COMELEC, 29 where we laid down
a possible exception to the rule that a second placer may not be declared the winning candidate, finds no
application in this case. The exception is predicated on the concurrence of two assumptions, namely: (1)
the one who obtained the highest number of votes is disqualified; and (2) the electorate is fully aware in
fact and in law of a candidate's disqualification so as to bring such awareness within the realm of notoriety
but would nonetheless cast their votes in favor of the ineligible candidate. Both assumptions, however,
are absent in this case.
BIENVENIDO O. MARQUEZ, JR., petitioner,
vs.
COMMISSION ON ELECTIONS and EDUARDO T. RODRIGUEZ, respondents.
The Court is called upon, in this petition for certiorari, to resolve the conflicting claims of the parties on the
meaning of the term "fugitive from justice as that phrase is so used under the provisions of Section 40(e)
of the Local Government Code (Republic Act No. 7160). That law states:
Sec. 40. Disqualifications. The following persons are disqualified from running for
any elective local position:
xxx xxx xxx
(e) Fugitive from justice in criminal or non-political cases here or abroad(.)
Bienvenido Marquez, a defeated candidate for the elective position for the elective position in the
Province of Quezon in the 11th May 1992 elections filed this petition for certiorari praying for the reversal
of the resolution of the Commission on Elections ("COMELEC") which dismissed his petition for quo
warranto against the winning candidate, herein private respondent Eduardo Rodriguez, for being allegedly
a fugitive from justice.
It is averred that at the time private respondent filed his certificate of candidacy, a criminal charge against
him for ten (10) counts of insurance fraud or grand theft of personal property was still pending before the
Municipal Court of Los Angeles Judicial District, County of Los Angeles, State of California, U.S.A. A
warrant issued by said court for his arrest, it is claimed, has yet to be served on private respondent on
account of his alleged "flight" from that country.
Hence, this petition for certiorari, the core issue of which, such as to be expected, focuses on whether
private respondent who, at the time of the filing of his certificate of candidacy (and to date), is said to be
facing a criminal charge before a foreign court and evading a warrant for his arrest comes within the term
"fugitive from justice" contemplated by Section 40(e) of the Local Government Code and, therefore,
disqualified from being a candidate for, and thereby ineligible from holding on to, an elective local office.

The Oversight Committee finally came out with Article 73 of the Rules and Regulations Implementing the
Local Government Code of 1991. It provided:
Art. 73. Disqualifications. The following persons shall be disqualified from
running for any elective local position:
(a) . . .
(e) Fugitives from justice in criminal or non-political cases here or
abroad. Fugitive from justice refers to a person who has been convicted by final
judgment. 5 (Emphasis supplied)
Private respondent reminds us that the construction placed upon law by the officials in charge of its
enforcement deserves great and considerable weight (Atlas Consolidated Mining and Development Corp.
vs. CA, 182 SCRA 166, 181). The Court certainly agrees; however, when there clearly is no obscurity and
ambiguity in an enabling law, it must merely be made to apply as it is so written. An administrative rule or
regulation can neither expand nor constrict the law but must remain congruent to it. The Court believes
and thus holds, albeit with some personal reservations of the ponente (expressed during the Court's en
banc deliberations), that Article 73 of the Rules and Regulations Implementing the Local Government
Code of 1991, to the extent that it confines the term "fugitive from justice" to refer only to a person (the
fugitive) "who has been convicted by final judgment." is an inordinate and undue circumscription of the
law.
EDUARDO T. RODRIGUEZ, petitioner,
vs.
COMMISSION ON ELECTIONS, BIENVENIDO O. MARQUEZ, JR., respondents.
Petitioner Eduardo T. Rodriguez and private respondent Bienvenido O. Marquez Jr. (Rodriguez and
Marquez, for brevity) were protagonists for the gubernatorial post of Quezon Province in the May 1992
elections. Rodriguez won and was proclaimed duly-elected governor.
Marquez challenged Rodriguez' victory via petition for quo warranto before the COMELEC (EPC No. 9228). Marquez revealed that Rodriguez left the United States where a charge, filed on November 12, 1985,
is pending against the latter before the Los Angeles Municipal Court for fraudulent insurance claims,
grand theft and attempted grand theft of personal property. Rodriguez is therefore a "fugitive from
justice" which is a ground for his disqualification/ineligibility under Section 40(e) of the Local Government
Code (R.A. 7160), so argued Marquez.
The instant petition dwells on that nagging issue of whether Rodriguez is a "fugitive from justice", the
determination of which, as we have directed the COMELEC on two (2) occasions (in the MARQUEZ
Decision and in the Court's October 24, 1995 Resolution), must conform to how such term has been
defined by the Court in the MARQUEZ Decision. To reiterate, a "fugitive from justice":
. . . includes not only those who flee after conviction to avoid punishment but likewise who, after being
charged, flee to avoid prosecution.
The definition thus indicates that the intent to evade is the compelling factor that animates one's flight
from a particular jurisdiction. And obviously, there can only be an intent to evade prosecution or
punishment when there is knowledge by the fleeing subject of an already instituted indictment, or of a
promulgated judgment of conviction.
Rodriguez' case just cannot fit in this concept. There is no dispute that his arrival in the Philippines from
the US on June 25, 1985, as per certifications issued by the Bureau of Immigrations dated April 27 3 and

June 26 of 1995, 4 preceded the filing of the felony complaint in the Los Angeles Court on November 12,
1985 and of the issuance on even date of the arrest warrant by the same foreign court, by almost five (5)
months. It was clearly impossible for Rodriguez to have known about such felony complaint and arrest
warrant at the time he left the US, as there was in fact no complaint and arrest warrant much less
conviction to speak of yet at such time. What prosecution or punishment then was Rodriguez
deliberately running away from with his departure from the US? The very essence of being a "fugitive
from justice" under the MARQUEZ Decision definition, is just nowhere to be found in the circumstances of
Rodriguez.
Having established petitioner's lack of knowledge of the charges to be filed against him at the time he left
the United States, it becomes immaterial under such construction to determine the exact time when he
was made aware thereof. While the law, as interpreted by the Supreme Court, does not countenance
flight from justice in the instance that a person flees the jurisdiction of another state after charges against
him or a warrant for his arrest was issued or even in view of the imminent filing and issuance of the same,
petitioner's plight is altogether a different situation. When, in good faith, a person leaves the territory of a
state not his own, homeward bound, and learns subsequently of charges filed against him while in the
relative peace and service of his own country, the fact that he does not subject himself to the jurisdiction
of the former state does not qualify him outright as a fugitive from justice.
To summarize, the term "fugitive from justice" as a ground for the disqualification or ineligibility of a person
seeking to run for any elective local petition under Section 40(e) of the Local Government Code, should
be understood according to the definition given in the MARQUEZ Decision, to wit:
A "fugitive from justice" includes not only those who flee after conviction to avoid punishment but likewise
those who, after being charged, flee to avoid prosecution. (Emphasis ours.)
Intent to evade on the part of a candidate must therefore be established by proof that there has already
been a conviction or at least, a charge has already been filed, at the time of flight. Not being a "fugitive
from justice"under this definition, Rodriguez cannot be denied the Quezon Province gubernatorial post.
ERNESTO S. MERCADO, petitioner,
vs.
EDUARDO BARRIOS MANZANO and the COMMISSION ON ELECTIONS, respondents.
Dual citizenship disqualification in the Local Government Code really meant dual allegiance
Dual citizenship versus dual allegiance
To begin with, dual citizenship is different from dual allegiance. The former arises when, as a result of the
concurrent application of the different laws of two or more states, a person is simultaneously considered a
national by the said states. 9 For instance, such a situation may arise when a person whose parents are
citizens of a state which adheres to the principle of jus sanguinis is born in a state which follows the
doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his part, is concurrently
considered a citizen of both states.
Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by
some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is
the result of an individual's volition.
For candidates for office with dual citizenship, it is enough that they elect Philippine citizenship upon the
filing of their certificate of candidacy to terminate their status as persons with dual citizenship.

GAUDENCIO M. CORDORA, Petitioner,

vs.
COMMISSION ON ELECTIONS and GUSTAVO S. TAMBUNTING, Respondents.
In his complaint affidavit filed before the COMELEC Law Department, Cordora asserted that Tambunting
made false assertions in the following items:
That Annex A [Tambuntings Certificate of Candidacy for the 2001 elections] and Annex B [Tambuntings
Certificate of Candidacy for the 2004 elections] state, among others, as follows, particularly Nos. 6, 9 and
12 thereof:
1. No. 6 I am a Natural Born/Filipino Citizen
2. No. 9 No. of years of Residence before May 14, 2001.
36 in the Philippines and 25 in the Constituency where I seek to be elected;
3. No. 12 I am ELIGIBLE for the office I seek to be elected. 3 (Boldface and
capitalization in the original)
Cordora stated that Tambunting was not eligible to run for local public office because Tambunting lacked
the required citizenship and residency requirements.
To disprove Tambuntings claim of being a natural-born Filipino citizen, Cordora presented a certification
from the Bureau of Immigration which stated that, in two instances, Tambunting claimed that he is an
American: upon arrival in the Philippines on 16 December 2000 and upon departure from the Philippines
on 17 June 2001. According to Cordora, these travel dates confirmed that Tambunting acquired American
citizenship through naturalization in Honolulu, Hawaii on 2 December 2000. Cordora concluded:
That Councilor Gustavo S. Tambunting contrary to the provision of Sec 74 (OEC): [sic] Re: CONTENTS
OF CERTIFICATE OF CANDIDACY: which requires the declarant/affiant to state, among others, under
oath, that he is a Filipino (No. 6), No. 9- residence requirement which he lost when [he was]
naturalized as an American Citizen on December 2, 2000 at [sic] Honolulu, Hawaii, knowingly and
willfully affirmed and reiterated that he possesses the above basic requirements under No. 12 that
he is indeed eligible for the office to which he seeks to be elected, when in truth and in fact, the
contrary is indubitably established by his own statements before the Philippine Bureau of Immigration x
x x.4 (Emphases in the original)
Tambunting, on the other hand, maintained that he did not make any misrepresentation in his certificates
of candidacy. To refute Cordoras claim that Tambunting is not a natural-born Filipino, Tambunting
presented a copy of his birth certificate which showed that he was born of a Filipino mother and an
American father. Tambunting further denied that he was naturalized as an American citizen. The
certificate of citizenship conferred by the US government after Tambuntings father petitioned him through
INS Form I-130 (Petition for Relative) merely confirmed Tambuntings citizenship which he acquired at
birth. Tambuntings possession of an American passport did not mean that Tambunting is not a Filipino
citizen. Tambunting also took an oath of allegiance on 18 November 2003 pursuant to Republic Act No.
9225 (R.A. No. 9225), or the Citizenship Retention and Reacquisition Act of 2003.
Tambunting further stated that he has resided in the Philippines since birth. Tambunting has imbibed the
Filipino culture, has spoken the Filipino language, and has been educated in Filipino schools. Tambunting
maintained that proof of his loyalty and devotion to the Philippines was shown by his service as councilor
of Paraaque.

To refute Cordoras claim that the number of years of residency stated in Tambuntings certificates of
candidacy is false because Tambunting lost his residency because of his naturalization as an American
citizen, Tambunting contended that the residency requirement is not the same as citizenship.
Cordora submits that the COMELEC acted with grave abuse of discretion amounting to lack or excess of
jurisdiction when it declared that there is no sufficient evidence to support probable cause that may
warrant the prosecution of Tambunting for an election offense.
Cordoras petition is not an action to disqualify Tambunting because of Tambuntings failure to meet
citizenship and residency requirements. Neither is the present petition an action to declare Tambunting a
non-Filipino and a non-resident. The present petition seeks to prosecute Tambunting for knowingly
making untruthful statements in his certificates of candidacy.
The Ruling of the Court
The petition has no merit. We affirm the ruling of the COMELEC En Banc.
Tambunting does not deny that he is born of a Filipino mother and an American father. Neither does he
deny that he underwent the process involved in INS Form I-130 (Petition for Relative) because of his
fathers citizenship. Tambunting claims that because of his parents differing citizenships, he is both
Filipino and American by birth. Cordora, on the other hand, insists that Tambunting is a naturalized
American citizen.
We agree with Commissioner Sarmientos observation that Tambunting possesses dual citizenship.
Because of the circumstances of his birth, it was no longer necessary for Tambunting to undergo the
naturalization process to acquire American citizenship. The process involved in INS Form I-130 only
served to confirm the American citizenship which Tambunting acquired at birth. The certification from the
Bureau of Immigration which Cordora presented contained two trips where Tambunting claimed that he is
an American. However, the same certification showed nine other trips where Tambunting claimed that he
is Filipino. Clearly, Tambunting possessed dual citizenship prior to the filing of his certificate of candidacy
before the 2001 elections. The fact that Tambunting had dual citizenship did not disqualify him from
running for public office.7
To begin with, dual citizenship is different from dual allegiance. The former arises when, as a result of the
concurrent application of the different laws of two or more states, a person is simultaneously considered a
national by the said states. For instance, such a situation may arise when a person whose parents are
citizens of a state which adheres to the principle of jus sanguinis is born in a state which follows the
doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his part, is concurrently
considered a citizen of both states. Considering the citizenship clause (Art. IV) of our Constitution, it is
possible for the following classes of citizens of the Philippines to possess dual citizenship:
(1) Those born of Filipino fathers and/or mothers in foreign countries which follow the
principle of jus soli;
(2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of
their fathers country such children are citizens of that country;
(3) Those who marry aliens if by the laws of the latters country the former are considered
citizens, unless by their act or omission they are deemed to have renounced Philippine
citizenship.

There may be other situations in which a citizen of the Philippines may, without performing any act, be
also a citizen of another state; but the above cases are clearly possible given the constitutional provisions
on citizenship.
Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by
some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is
the result of an individuals volition.
xxx
[I]n including 5 in Article IV on citizenship, the concern of the Constitutional Commission was not with
dual citizens per se but with naturalized citizens who maintain their allegiance to their countries of origin
even after their naturalization. Hence, the phrase "dual citizenship" in R.A. No. 7160, 40(d) and in R.A.
No. 7854, 20 must be understood as referring to "dual allegiance." Consequently, persons with mere
dual citizenship do not fall under this disqualification. Unlike those with dual allegiance, who
must, therefore, be subject to strict process with respect to the termination of their status, for
candidates with dual citizenship, it should suffice if, upon the filing of their certificates of
candidacy, they elect Philippine citizenship to terminate their status as persons with dual
citizenship considering that their condition is the unavoidable consequence of conflicting laws of
different states. As Joaquin G. Bernas, one of the most perceptive members of the Constitutional
Commission, pointed out: "[D]ual citizenship is just a reality imposed on us because we have no control of
the laws on citizenship of other countries. We recognize a child of a Filipino mother. But whether or not
she is considered a citizen of another country is something completely beyond our control."
Under R.A. No. 9225, a Filipino who becomes a naturalized citizen of another country is allowed to retain
his Filipino citizenship by swearing to the supreme authority of the Republic of the Philippines. The act of
taking an oath of allegiance is an implicit renunciation of a naturalized citizens foreign citizenship.
The twin requirements of swearing to an Oath of Allegiance and executing a Renunciation of Foreign
Citizenship served as the bases for our recent rulings in Jacot v. Dal and COMELEC,13 Velasco v.
COMELEC,14 and Japzon v. COMELEC,15 all of which involve natural-born Filipinos who later became
naturalized citizens of another country and thereafter ran for elective office in the Philippines. In the
present case, Tambunting, a natural-born Filipino, did not subsequently become a naturalized citizen of
another country. Hence, the twin requirements in R.A. No. 9225 do not apply to him.
Cordora concluded that Tambunting failed to meet the residency requirement because of Tambuntings
naturalization as an American. Cordoras reasoning fails because Tambunting is not a naturalized
American. Moreover, residency, for the purpose of election laws, includes the twin elements of the fact of
residing in a fixed place and the intention to return there permanently,16 and is not dependent upon
citizenship.
In view of the above, we hold that Cordora failed to establish that Tambunting indeed willfully made false
entries in his certificates of candidacy. On the contrary, Tambunting sufficiently proved his innocence of
the charge filed against him. Tambunting is eligible for the office which he sought to be elected and
fulfilled the citizenship and residency requirements prescribed by law.
PAUL CLEMENTINO V. OSORIO, petitioner,
VS.
COMMISSION ON ELECTIONS AND ANGELINO V. LAURETA, respondents.
Petitioner and private respondents were both candidates for the position of Barangay Chairman in
the 2002 barangay elections.

Private respondent filed a disqualification case against petitioner on the ground that the latter was
found guilty of dishonesty by the Civil Service Commission (CSC) while holding public office. Said CSC
decision was final and executory.
Petitioner won the barangay election by 21 votes. However, on August 23, 2002, the COMELEC First
Division released its resolution declaring petitioner disqualified to run.
Petitioner insists that the word "office" in Section 40(b) of the 1991 Local Government Code refers
exclusively to an elective office.
We disagree.
Petitioner's cause for disqualification is provided in Section 3(b) of COMELEC resolution 4801
promulgated on May 23, 2002:
Section 3. Disqualifications. - The following are disqualified from running for any
elective barangay and sangguniang kabataan positions:
xxx

xxx

xxx

(b) Those removed from office as a result of an administrative case.

xxx

xxx

xxx

in relation to Section 40(b) of the Local Government Code:

(b) Those removed from office as a result of an administrative case.
xxx

xxx

xxx

The above-stated provisions state "removed from office" without any qualification. It is a cardinal rule
in statutory construction that when the law does not distinguish, we must not distinguish, in accordance
with the maxim ubi lex non distinguit nec nos distinguere debemus.
URBANO M. MORENO, Petitioner,
vs.
COMMISSION ON ELECTIONS and NORMA L. MEJES, CHICO-NAZARIO, Respondents.
Norma L. Mejes (Mejes) filed a petition to disqualify Moreno from running for Punong Barangay on the
ground that the latter was convicted by final judgment of the crime of Arbitrary Detention and was
sentenced to suffer imprisonment of Four (4) Months and One (1) Day to Two (2) Years and Four (4)
Months by the Regional Trial Court, Branch 28 of Catbalogan, Samar on August 27, 1998.
Moreno filed an answer averring that the petition states no cause of action because he was already
granted probation. Allegedly, following the case of Baclayon v. Mutia, 4 the imposition of the sentence of
imprisonment, as well as the accessory penalties, was thereby suspended. Moreno also argued that
under Sec. 16 of the Probation Law of 1976 (Probation Law), the final discharge of the probation shall
operate to restore to him all civil rights lost or suspended as a result of his conviction and to fully
discharge his liability for any fine imposed. The order of the trial court dated December 18, 2000 allegedly
terminated his probation and restored to him all the civil rights he lost as a result of his conviction,
including the right to vote and be voted for in the July 15, 2002 elections.
The resolution of the present controversy depends on the application of the phrase "within two (2) years
after serving sentence" found in Sec. 40(a) of the Local Government Code, which reads:

Sec. 40. Disqualifications. The following persons are disqualified from running for any elective local
position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense
punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence;
[Emphasis supplied.]
....
We should mention at this juncture that there is no need to rule on whether Arbitrary Detention, the crime
of which Moreno was convicted by final judgment, involves moral turpitude falling under the first part of
the above-quoted provision. The question of whether Arbitrary Detention is a crime involving moral
turpitude was never raised in the petition for disqualification because the ground relied upon by Mejes,
and which the Comelec used in its assailed resolutions, is his alleged disqualification from running for a
local elective office within two (2) years from his discharge from probation after having been convicted by
final judgment for an offense punishable by Four (4) Months and One (1) Day to Two (2) Years and Four
(4) Months. Besides, a determination that the crime of Arbitrary Detention involves moral turpitude is not
decisive of this case, the crucial issue being whether Morenos sentence was in fact served.
In this sense, Dela Torre v. Comelec is not squarely applicable. Our pronouncement therein that the grant
of probation does not affect the disqualification under Sec. 40(a) of the Local Government Code was
based primarily on the finding that the crime of fencing of which petitioner was convicted involves moral
turpitude, a circumstance which does not obtain in this case. At any rate, the phrase "within two (2) years
after serving sentence" should have been interpreted and understood to apply both to those who have
been sentenced by final judgment for an offense involving moral turpitude and to those who have been
sentenced by final judgment for an offense punishable by one (1) year or more of imprisonment. The
placing of the comma (,) in the provision means that the phrase modifies both parts of Sec. 40(a) of the
Local Government Code.
Sec. 40(a) of the Local Government Code appears innocuous enough at first glance. The phrase "service
of sentence," understood in its general and common sense, means the confinement of a convicted person
in a penal facility for the period adjudged by the court. 10 This seemingly clear and unambiguous
provision, however, has spawned a controversy worthy of this Courts attention because the Comelec, in
the assailed resolutions, is alleged to have broadened the coverage of the law to include even those who
did not serve a day of their sentence because they were granted probation.
Moreno argues, quite persuasively, that he should not have been disqualified because he did not serve
the adjudged sentence having been granted probation and finally discharged by the trial court.
In Baclayon v. Mutia, the Court declared that an order placing defendant on probation is not a sentence
but is rather, in effect, a suspension of the imposition of sentence. We held that the grant of probation to
petitioner suspended the imposition of the principal penalty of imprisonment, as well as the accessory
penalties of suspension from public office and from the right to follow a profession or calling, and that of
perpetual special disqualification from the right of suffrage. We thus deleted from the order granting
probation the paragraph which required that petitioner refrain from continuing with her teaching
profession.
Applying this doctrine to the instant case, the accessory penalties of suspension from public office, from
the right to follow a profession or calling, and that of perpetual special disqualification from the right of
suffrage, attendant to the penalty of arresto mayor in its maximum period to prision correccional in its
minimum period 11 imposed upon Moreno were similarly suspended upon the grant of probation.

It appears then that during the period of probation, the probationer is not even disqualified from running
for a public office because the accessory penalty of suspension from public office is put on hold for the
duration of the probation.
Clearly, the period within which a person is under probation cannot be equated with service of the
sentence adjudged. Sec. 4 of the Probation Law specifically provides that the grant of probation suspends
the execution of the sentence. During the period of probation, 12 the probationer does not serve the
penalty imposed upon him by the court but is merely required to comply with all the conditions prescribed
in the probation order. 13
It is regrettable that the Comelec and the OSG have misapprehended the real issue in this case. They
focused on the fact that Morenos judgment of conviction attained finality upon his application for
probation instead of the question of whether his sentence had been served.
The Comelec could have correctly resolved this case by simply applying the law to the letter. Sec. 40(a) of
the Local Government Code unequivocally disqualifies only those who have been sentenced by final
judgment for an offense punishable by imprisonment of one (1) year or more, within two (2) years after
serving sentence.
This is as good a time as any to clarify that those who have not served their sentence by reason of the
grant of probation which, we reiterate, should not be equated with service of sentence, should not likewise
be disqualified from running for a local elective office because the two (2)-year period of ineligibility under
Sec. 40(a) of the Local Government Code does not even begin to run.
The fact that the trial court already issued an order finally discharging Moreno fortifies his position. Sec.
16 of the Probation Law provides that "[t]he final discharge of the probationer shall operate to restore to
him all civil rights lost or suspended as a result of his conviction and to fully discharge his liability for any
fine imposed as to the offense for which probation was granted." Thus, when Moreno was finally
discharged upon the courts finding that he has fulfilled the terms and conditions of his probation, his case
was deemed terminated and all civil rights lost or suspended as a result of his conviction were restored to
him, including the right to run for public office.
It is important to note that the disqualification under Sec. 40(a) of the Local Government Code covers
offenses punishable by one (1) year or more of imprisonment, a penalty which also covers probationable
offenses. In spite of this, the provision does not specifically disqualify probationers from running for a local
elective office. This omission is significant because it offers a glimpse into the legislative intent to treat
probationers as a distinct class of offenders not covered by the disqualification.
On this score, we agree with Moreno that the Probation Law should be construed as an exception to the
Local Government Code. While the Local Government Code is a later law which sets forth the
qualifications and disqualifications of local elective officials, the Probation Law is a special legislation
which applies only to probationers. It is a canon of statutory construction that a later statute, general in its
terms and not expressly repealing a prior special statute, will ordinarily not affect the special provisions of
such earlier statute. 17
Section 41. Manner of Election. (a) The governor, vice-governor, city mayor, city vice-mayor, municipal mayor, municipal
vice-mayor, and punong barangay shall be elected at large in their respective units by the
qualified voters therein. However, the sangguniang kabataan chairman for each barangay
shall be elected by the registered voters of the katipunan ng kabataan, as provided in this
Code.

"(b) The regular members of the sangguniang panlalawigan, sangguniang panlungsod,

and sangguniang bayan shall be elected by district as follows:
"First and second-class provinces shall have ten (10) regular members; third and fourthclass provinces, eight (8); and fifth and sixth-class provinces, six (6): Provided, That in
provinces having more than five (5) legislative districts, each district shall have two (2)
sangguniang panlalawigan members, without prejudice to the provisions of Sec. 2 of
Republic Act No. 6637. Sangguniang barangay members shall be elected at large. The
presidents of the leagues of sanggunian members of component cities and municipalities
shall serve as ex officio members of the sangguniang panlalawigan concerned. The
presidents of the liga ng mga barangay and the pederasyon ng mga sangguniang
kabataan elected by their respective chapters, as provided in this Code, shall serve as ex
officio members of the sangguniang panlalawigan, sangguniang panlungsod, and
sangguniang bayan.
(c) In addition thereto, there shall be one (1) sectoral representative from the women, one
(1) from the workers, and one (1) from any of the following sectors: the urban poor,
indigenous cultural communities, disabled persons, or any other sector as may be
determined by the sanggunian concerned within ninety (90) days prior to the holding of
the next local elections as may be provided for by law. The COMELEC shall promulgate
the rules and regulations to effectively provide for the election of such sectoral
representatives.
BENJAMIN P. ABELLA, petitioner,
vs.
COMMISSION ON ELECTIONS and ADELINA Y. LARRAZABAL, respondents.
The main issue in these consolidated petitions centers on who is the rightful governor of the province of
Leyte 1) petitioner Adelina Larrazabal (G.R. No. 100739) who obtained the highest number of votes in the
local elections of February 1, 1988 and was proclaimed as the duly elected governor but who was later
declared by the Commission on Elections (COMELEC) "... to lack both residence and registration
qualifications for the position of Governor of Leyte as provided by Art. X, Section 12, Philippine
Constitution in relation to Title II, Chapter I, Sec. 42, B.P. Blg. 137 and Sec. 89, R.A. No. 179 and is
hereby disqualified as such Governor"; 2) petitioner Benjamin Abella (G.R. No. 100710), who obtained the
second highest number of votes for the position of governor but was not allowed by the COMELEC to be
proclaimed as governor after the disqualification of Larrazabal; or 3) Leopoldo E. Petilla, the vicegovernor of the province of Leyte.
It appearing that despite the filing of this petition before this Court and during its
pendency, the incumbent Vice-Governor of Leyte Hon. Leopoldo E. Petilla, took
his oath as Provincial Governor of Leyte and assumed the governorship as
contained in his telegraphic message, pursuant to COMELEC resolution SPC
No. 88-546, promulgated on July 18, 1991, the Court further Resolved to ORDER
Hon. Leopoldo E. Petilla to MAINTAIN the status quo ante then prevailing and/or
existing before the filing of this petition and to DESIST from assuming the office
of the Governor and from discharging the duties and functions thereof. (Rollo100739, p. 204)
Sec. 42. Qualification. (1) An elective local official must be a citizen of the
Philippines, at least twenty-three years of age on election day, a qualified voter
registered as such in the barangay, municipality, city or province where he
proposes to be elected, a resident therein for at least one year at the time of the
filing of his certificate of candidacy, and able to read and write English, Pilipino, or
any other local language or dialect.

xxx xxx xxx

Sec. 12. Cities that are highly urbanized, as determined by law, and component
cities whose charters prohibit their voters from voting for provincial elective
officials, shall be independent of the province. The voters of component cities
within a province, whose charters contain no such prohibition, shall not be
deprived of their right to vote for elective provincial officials.
The position of petitioners De la Cruz and Abena was that respondent Larrazabal is neither a resident nor
a registered voter of Kananga, Leyte as she claimed but a resident and registered voter of Ormoc City, a
component city of the province of Leyte but independent of the province pursuant to Section 12, Article X
of the Constitution thereby disqualifying her for the position of governor of Leyte. They presented
testimonial as well as documentary evidence to prove their stance.
In the instant case, there is no evidence to prove that the petitioner temporarily left her residence in
Kananga, Leyte in 1975 to pursue any calling, profession or business. What is clear is that she
established her residence in Ormoc City with her husband and considers herself a resident therein. The
intention of animus revertendi not to abandon her residence in Kananga, Leyte therefor, is not present.
The fact that she occasionally visits Kananga, Leyte through the years does not signify an intention to
continue her residence therein. It is common among us Filipinos to often visit places where we formerly
resided specially so when we have left friends and relatives therein although for intents and purposes we
have already transferred our residence to other places.
Section 12, Article X of the Constitution provides:
Cities that are highly urbanized, as determined by law, and component cities
whose charters prohibit their voters from voting for provincial elective officials,
shall be independent of the province. The voters of component cities within a
province, whose charters contain no such prohibition, shall not be deprived of
their right to vote for elective provincial officials.
Section 89 of Republic Act No. 179 creating the City of Ormoc provides:
Election of provincial governor and members of the Provincial Board of the
members of the Provincial Board of the Province of Leyte The qualified voters
of Ormoc City shall not be qualified and entitled to vote in the election of the
provincial governor and the members of the provincial board of the Province of
Leyte.
Relating therefore, section 89 of R.A. 179 to section 12, Article X of the Constitution one comes up with
the following conclusion: that Ormoc City when organized was not yet a highly-urbanized city but is,
nevertheless, considered independent of the province of Leyte to which it is geographically attached
because its charter prohibits its voters from voting for the provincial elective officials. The question now is
whether or not the prohibition against the 'city's registered voters' electing the provincial officials
necessarily mean, a prohibition of the registered voters to be elected as provincial officials.
Section 12, Article X of the Constitution is explicit in that aside from highly-urbanized cities, component
cities whose charters prohibit their voters from voting for provincial elective officials are independent of
the province. In the same provision, it provides for other component cities within a province whose
charters do not provide a similar prohibition. Necessarily, component cities like Ormoc City whose
charters prohibit their voters from voting for provincial elective officials are treated like highly urbanized
cities which are outside the supervisory power of the province to which they are geographically attached.
This independence from the province carries with it the prohibition or mandate directed to their registered
voters not to vote and be voted for the provincial elective offices.

Moreover, Section 89 of Republic Act 179, independent of the constitutional provision, prohibits registered
voters of Ormoc City from voting and being voted for elective offices in the province of Leyte. We agree
with the COMELEC en banc that "the phrase 'shall not be qualified and entitled to vote in the election of
the provincial governor and the members of the provincial board of the Province of Leyte' connotes two
prohibitions one, from running for and the second, from voting for any provincial elective official."
(Resolution En Banc, p. 6)
Finally, there is the question of whether or not the private respondent, who filed the quo warranto petition,
can replace the petitioner as mayor. He cannot. The simple reason is that as he obtained only the second
highest number of votes in the election, he was obviously not the choice of the people of Baguio City.
WHEREFORE, the instant petitions are DISMISSED. The questioned decision of the second division of
the Commission on Elections dated February 14, 1991 and the questioned Resolution en banc of the
Commission dated July 18, 1991 are hereby AFFIRMED. The temporary restraining order issued on
August 1, 1991 is LIFTED. Costs against the petitioners.
RAMON B. CENIZA, et al, petitioners,
vs.
COMMISSION ON ELECTIONS, et al, respondents.
On December 22. 1979, the Interim Batasang Pambansa enacted Batas Blg. 51 providing for local
elections on January 30, 1980. Section of the statute provides:
SEC. 3. Cities. There shall be in each city such elective local officials as
provided in their respective charters, including the city mayor, the city vice-mayor,
and the elective members of the sangguniang panglungsod, all of whom shall' be
elected by the qualified voters in the city. In addition thereto, there shall be
appointive sangguniang panglungsod members consisting of the of the city
association of barangay councils, the President of the city federation of the
kabataang barangay, and one representative each from the agricultural and
industrial labor sectors who shall be appointed by the President (Prime Minister)
whenever, as de by the sangguniang panglungsod, said sectors are of sufficient
number in the city to warrant representation.
Until cities are reclassified into highly urbanized and component cities in
accordance with the standards established in the Local Government Code as
provided for in Article XI, Section 4(1) of the Constitution. any city now existing
with an annual regular derived from infrastructure and general funds of not less
than forty million pesos (P40,000,000.00) at the time of the approval of this Act
shag be classified as a highly urbanized city. All other cities shall be considered
components of the provinces where they are geographically located.
The City of Baguio, because of its special functions as the summer capital of the
Philippines, shall be classified as a highly urbanized city irrespective of its
income.
The registered voters of a component city may be entitled to vote in the election
of the officials of the province of which that city is a component, if its charter so
provides. However, voters registered in a highly urbanized city, as hereinabove
defined shall not participate nor vote in the election of the officials of the province
in which the highly urbanized city is geographically located.
Because the City of Cebu has an income of P51,603,147,64, it is classified as a highly urbanized city and
the voters thereof cannot take part in the election of the elective provincial officials of the province of

Cebu, although the Charter of Cebu City 1 allows the qualified voters of the city to vote in the election of
the provincial officials of the Province of Cebu.
The City of Mandaue, not having an annual regular income of not less than ?40 million, is classified as a
component city. But the registered voters of the city cannot vote for the provincial elective officials
because its Charter 2 expressly provides that the registered voters of the city cannot participate in the
election of the provincial officials of the Province of Cebu, except to be a candidate therefor.
The petitioners filed the instant suit as taxpayers and registered voters in the Cities of Cebu and
Mandaue. They are members of a civic and non-partisan group known as D-O-E-R-S (an accronym for
"DEMOCRACY OR EXTINCTION: RESOLVED TO SUCCEED) which counts lawyers among its
members, and extends free legal assistance to citizens regardless of economic and social status in
meritorious cases involving violation of civil liberties and basic human rights. They vigorously assail
Section 3 of Batas Pambansa Blg. 51, which uses the annual income of a given city as the basis for
classification of whether or not a particular city is a highly urbanized city whose voters may not participate
in the election of provincial officials of the province where the city is geographically located; and Republic
Act No. 5519, otherwise known as the Charter of Mandaue City, which went into effect without the benefit
of ratification by the residents of Mandaue in a plebiscite or referendum. They pray that upon filing of the
instant petition, a restraining order be issued "temporarily prohibiting the holding of election for Provincial
Governor and other elective provincial officials in the province where the 18 cities listed by the respondent
COMELEC are located, particularly Cebu City and Mandaue City, and temporarily prohibiting the National
Treasurer to release public funds and the COA to pass in audit said funds in connection with and for the
purpose of holding local elections in said provinces; and after hearing, to make the injunction permanent
declaring unconstitutional and therefore void Section 96, Art. XVIII of the Charter of Mandaue, otherwise
known as RA 5519," and should the stopping of the provincial elections in the provinces concerned be not
possible, the respondent COMELEC be directed "to allow the qualified registered voters in the cities listed
by said respondent, particularly Cebu City and Mandaue City, to participate in the election of, and vote for,
the Provincial Governor and other elective provincial officials and preparing the corresponding official
ballots for this purpose which shall provide spaces therein for Provincial Governor and other elective
provincial officials of the provinces concerned, particularly the province of Cebu."
The petitioners contend that "Section 3 of Batas Blg. 885 3 insofar as it classifies cities including Cebu city
as highly urbanized as the only basis for not allowing its electorate to vote for the provincial officials is
inherently and palpably unconstitutional in that such classification is not based on substantial distinctions
germane to the purpose of the law which in effect provides for and regulates the exercise of the right of
suffrage, and therefore such unreasonable classification amounts to a denial of equal protection."
We find no merit in the petition. The thrust of the 1973 Constitution is towards the fullest autonomy of
local government units. In the Declaration of Principles and State Policies, it is stated that "The state shall
guarantee and promote the autonomy of local government units, especially the barrio, to ensure their
fullest development as self-reliant communities." 4 To this end, the Constitution directs the National
Assembly to "enact a local government code which may not thereafter be amended except by the majority
vote of all its members, defining a more responsive and accountable local government structure with an
effective system of recall, allocating among the different local governments their powers, responsibilities,
and resources, and providing for the qualifications, election and removal, term, salaries, powers,
functions, and duties of local officials, and all other matters relating to the organization and operation of
local government units," 5 and empowered local government units "to create its own sources of revenue
and to levy taxes, subject to limitations as may be provided by law." 6 Art. XI, Section 4(1) of the said
Constitution places highly urbanized cities outside the supervisory power of the province where they are
geographically located. This is as it should be because of the complex and varied problems in a highly
urbanized city due to a bigger population and greater economic activity which require greater autonomy.
Corollary to independence however, is the concomitant loss of the right to participate in provincial affairs,
more particularly the selection of elective provincial officials since these provincial officials have ceased to
exercise any governmental jurisdiction and authority over said city. Thus, in the case of Teves vs.

Commission on Election 7 this Court, in holding that the registered voters of the City of Dumaguete cannot
vote for the provincial officials of Negros Oriental because the charter of the city does not expressly allow
the voters in the city to do so.
The classification of cities into highly urbanized cities and component cities on the basis of their regular
annual income is based upon substantial distinction. The revenue of a city would show whether or not it is
capable of existence and development as a relatively independent social, economic, and political unit. It
would also show whether the city has sufficient economic or industrial activity as to warrant its
independence from the province where it is geographically situated. Cities with smaller income need the
continued support of the provincial government thus justifying the continued participation of the voters in
the election of provincial officials in some instances.
The petitioners also contend that the voters in Mandaue City are denied equal protection of the law since
the voters in other component cities are allowed to vote for provincial officials. The contention is without
merit. The practice of allowing voters in one component city to vote for provincial officials and denying the
same privilege to voters in another component city is a matter of legislative discretion which violates
neither the Constitution nor the voter's right of suffrage.
Neither can it be considered an infringement upon the petitioners' rights of suffrage since the Constitution
confers no right to a voter in a city to vote for the provincial officials of the province where the city is
located. Their right is limited to the right to vote for elective city officials in local elections which the
questioned statues neither withdraw nor restrict.
Section 42. Date of Election. - Unless otherwise provided by law, the elections for local officials shall be
held every three (3) years on the second Monday of May.
DATU MICHAEL ABAS KIDA, et al, Petitioners,
vs.
SENATE OF THE PHILIPPINES, et al, Respondents.
On June 30, 2011, Republic Act (RA) No. 10153, entitled "An Act Providing for the Synchronization of the
Elections in the Autonomous Region in Muslim Mindanao (ARMM) with the National and Local Elections
and for Other Purposes" was enacted. The law reset the ARMM elections from the 8th of August 2011, to
the second Monday of May 2013 and every three (3) years thereafter, to coincide with the countrys
regular national and local elections. The law as well granted the President the power to "appoint officersin-charge (OICs) for the Office of the Regional Governor, the Regional Vice-Governor, and the Members
of the Regional Legislative Assembly, who shall perform the functions pertaining to the said offices until
the officials duly elected in the May 2013 elections shall have qualified and assumed office."
RA No. 93332 was subsequently passed by Congress to reset the ARMM regional elections to the 2nd
Monday of August 2005, and on the same date every 3 years thereafter. Unlike RA No. 6734 and RA No.
9054, RA No. 9333 was not ratified in a plebiscite.
Pursuant to RA No. 9333, the next ARMM regional elections should have been held on August 8, 2011.
COMELEC had begun preparations for these elections and had accepted certificates of candidacies for
the various regional offices to be elected. But on June 30, 2011, RA No. 10153 was enacted, resetting the
ARMM elections to May 2013, to coincide with the regular national and local elections of the country.
The petitioners assailing RA No. 9140, RA No. 9333 and RA No. 10153 assert that these laws amend RA
No. 9054 and thus, have to comply with the supermajority vote and plebiscite requirements prescribed
under Sections 1 and 3, Article XVII of RA No. 9094 in order to become effective.
The petitions assailing RA No. 10153 further maintain that it is unconstitutional for its failure to comply
with the three-reading requirement of Section 26(2), Article VI of the Constitution. Also cited as grounds

are the alleged violations of the right of suffrage of the people of ARMM, as well as the failure to adhere to
the "elective and representative" character of the executive and legislative departments of the ARMM.
Lastly, the petitioners challenged the grant to the President of the power to appoint OICs to undertake the
functions of the elective ARMM officials until the officials elected under the May 2013 regular elections
shall have assumed office. Corrolarily, they also argue that the power of appointment also gave the
President the power of control over the ARMM, in complete violation of Section 16, Article X of the
Constitution.
A. Synchronization as a recognized constitutional mandate
The respondent Office of the Solicitor General (OSG) argues that the Constitution mandates
synchronization, and in support of this position, cites Sections 1, 2 and 5, Article XVIII (Transitory
Provisions) of the 1987 Constitution, which provides:
Section 1. The first elections of Members of the Congress under this Constitution shall be held on the
second Monday of May, 1987.
The first local elections shall be held on a date to be determined by the President, which may be
simultaneous with the election of the Members of the Congress. It shall include the election of all
Members of the city or municipal councils in the Metropolitan Manila area.
Section 2. The Senators, Members of the House of Representatives and the local officials first elected
under this Constitution shall serve until noon of June 30, 1992.
Of the Senators elected in the election in 1992, the first twelve obtaining the highest number of votes shall
serve for six year and the remaining twelve for three years.
xxx
Section 5. The six-year term of the incumbent President and Vice President elected in the February 7,
1986 election is, for purposes of synchronization of elections, hereby extended to noon of June 30, 1992.
The first regular elections for President and Vice-President under this Constitution shall be held on the
second Monday of May, 1992.
We agree with this position.
While the Constitution does not expressly state that Congress has to synchronize national and local
elections, the clear intent towards this objective can be gleaned from the Transitory Provisions (Article
XVIII) of the Constitution,10 which show the extent to which the Constitutional Commission, by deliberately
making adjustments to the terms of the incumbent officials, sought to attain synchronization of elections. 11
The objective behind setting a common termination date for all elective officials, done among others
through the shortening the terms of the twelve winning senators with the least number of votes, is to
synchronize the holding of all future elections whether national or local to once every three
years.12 This intention finds full support in the discussions during the Constitutional Commission
deliberations.13
These Constitutional Commission exchanges, read with the provisions of the Transitory Provisions of the
Constitution, all serve as patent indicators of the constitutional mandate to hold synchronized national and
local elections, starting the second Monday of May, 1992 and for all the following elections.

Although called regional elections, the ARMM elections should be included among the elections to be
synchronized as it is a "local" election based on the wording and structure of the Constitution.1avvphil
III. A. RA No. 9333 and RA No. 10153 are not amendments to RA No. 9054
The effectivity of RA No. 9333 and RA No. 10153 has also been challenged because they did not comply
with Sections 1 and 3, Article XVII of RA No. 9054 in amending this law. These provisions require:
Section 1. Consistent with the provisions of the Constitution, this Organic Act may be reamended or
revised by the Congress of the Philippines upon a vote of two-thirds (2/3) of the Members of the House of
Representatives and of the Senate voting separately.
Section 3. Any amendment to or revision of this Organic Act shall become effective only when approved
by a majority of the vote cast in a plebiscite called for the purpose, which shall be held not earlier than
sixty (60) days or later than ninety (90) days after the approval of such amendment or revision.
We find no merit in this contention.
In the first place, neither RA No. 9333 nor RA No. 10153 amends RA No. 9054. As an examination of
these laws will show, RA No. 9054 only provides for the schedule of the first ARMM elections and does
not fix the date of the regular elections. A need therefore existed for the Congress to fix the date of the
subsequent ARMM regular elections, which it did by enacting RA No. 9333 and thereafter, RA No. 10153.
Obviously, these subsequent laws RA No. 9333 and RA No. 10153 cannot be considered
amendments to RA No. 9054 as they did not change or revise any provision in the latter law; they merely
filled in a gap in RA No. 9054 or supplemented the law by providing the date of the subsequent regular
elections.
This view that Congress thought it best to leave the determination of the date of succeeding ARMM
elections to legislative discretion finds support in ARMMs recent history.
To recall, RA No. 10153 is not the first law passed that rescheduled the ARMM elections. The First
Organic Act RA No. 6734 not only did not fix the date of the subsequent elections; it did not even fix
the specific date of the first ARMM elections,24 leaving the date to be fixed in another legislative
enactment. Consequently, RA No. 7647,25 RA No. 8176,26 RA No. 8746,27 RA No. 8753,28 and RA No.
901229 were all enacted by Congress to fix the dates of the ARMM elections. Since these laws did not
change or modify any part or provision of RA No. 6734, they were not amendments to this latter law.
Consequently, there was no need to submit them to any plebiscite for ratification.
The Second Organic Act RA No. 9054 which lapsed into law on March 31, 2001, provided that the first
elections would be held on the second Monday of September 2001. Thereafter, Congress passed RA No.
914030 to reset the date of the ARMM elections. Significantly, while RA No. 9140 also scheduled the
plebiscite for the ratification of the Second Organic Act (RA No. 9054), the new date of the ARMM regional
elections fixed in RA No. 9140 was not among the provisions ratified in the plebiscite held to approve RA
No. 9054. Thereafter, Congress passed RA No. 9333,31which further reset the date of the ARMM regional
elections. Again, this law was not ratified through a plebiscite.
From these legislative actions, we see the clear intention of Congress to treat the laws which fix the date
of the subsequent ARMM elections as separate and distinct from the Organic Acts. Congress only acted
consistently with this intent when it passed RA No. 10153 without requiring compliance with the
amendment prerequisites embodied in Section 1 and Section 3, Article XVII of RA No. 9054.
III. B. Supermajority voting requirement unconstitutional for giving RA No. 9054 the character of an
irrepealable law

Even assuming that RA No. 9333 and RA No. 10153 did in fact amend RA No. 9054, the supermajority
(2/3) voting requirement required under Section 1, Article XVII of RA No. 9054 32 has to be struck down for
giving RA No. 9054 the character of an irrepealable law by requiring more than what the Constitution
demands.
Section 16(2), Article VI of the Constitution provides that a "majority of each House shall constitute a
quorum to do business." In other words, as long as majority of the members of the House of
Representatives or the Senate are present, these bodies have the quorum needed to conduct business
and hold session. Within a quorum, a vote of majority is generally sufficient to enact laws or approve acts.
In contrast, Section 1, Article XVII of RA No. 9054 requires a vote of no less than two-thirds (2/3) of the
Members of the House of Representatives and of the Senate, voting separately, in order to effectively
amend RA No. 9054. Clearly, this 2/3 voting requirement is higher than what the Constitution requires for
the passage of bills, and served to restrain the plenary powers of Congress to amend, revise or repeal the
laws it had passed.
Thus, while a supermajority is not a total ban against a repeal, it is a limitation in excess of what the
Constitution requires on the passage of bills and is constitutionally obnoxious because it significantly
constricts the future legislators room for action and flexibility.
III. C. Section 3, Article XVII of RA No. 9054 excessively enlarged the plebiscite requirement found in
Section 18, Article X of the Constitution
The requirements of RA No. 9054 not only required an unwarranted supermajority, but enlarged as well
the plebiscite requirement, as embodied in its Section 3, Article XVII of that Act. As we did on the
supermajority requirement, we find the enlargement of the plebiscite requirement required under Section
18, Article X of the Constitution to be excessive to point of absurdity and, hence, a violation of the
Constitution.
Section 18, Article X of the Constitution states that the plebiscite is required only for the creation of
autonomous regions and for determining which provinces, cities and geographic areas will be included in
the autonomous regions. While the settled rule is that amendments to the Organic Act have to comply
with the plebiscite requirement in order to become effective, 35 questions on the extent of the matters
requiring ratification may unavoidably arise because of the seemingly general terms of the Constitution
and the obvious absurdity that would result if a plebiscite were to be required for every statutory
amendment.
Section 18, Article X of the Constitution plainly states that "The creation of the autonomous region shall
be effective when approved by the majority of the votes cast by the constituent units in a plebiscite called
for the purpose." With these wordings as standard, we interpret the requirement to mean that only
amendments to, or revisions of, the Organic Act constitutionally-essential to the creation of autonomous
regions i.e., those aspects specifically mentioned in the Constitution which Congress must provide for in
the Organic Act require ratification through a plebiscite. These amendments to the Organic Act are
those that relate to: (a) the basic structure of the regional government; (b) the regions judicial system,
i.e., the special courts with personal, family, and property law jurisdiction; and, (c) the grant and extent of
the legislative powers constitutionally conceded to the regional government under Section 20, Article X of
the Constitution.36
IV. The synchronization issue
As we discussed above, synchronization of national and local elections is a constitutional mandate that
Congress must provide for and this synchronization must include the ARMM elections. On this point, an
existing law in fact already exists RA No. 7166 as the forerunner of the current RA No. 10153. RA No.
7166 already provides for the synchronization of local elections with the national and congressional

elections. Thus, what RA No. 10153 provides is an old matter for local governments (with the exception of
barangay and Sanggunian Kabataan elections where the terms are not constitutionally provided) and is
technically a reiteration of what is already reflected in the law, given that regional elections are in reality
local elections by express constitutional recognition.37
To achieve synchronization, Congress necessarily has to reconcile the schedule of the ARMMs regular
elections (which should have been held in August 2011 based on RA No. 9333) with the fixed schedule of
the national and local elections (fixed by RA No. 7166 to be held in May 2013).
During the oral arguments, the Court identified the three options open to Congress in order to resolve this
problem. These options are: (1) to allow the elective officials in the ARMM to remain in office in a hold
over capacity, pursuant to Section 7(1), Article VII of RA No. 9054, until those elected in the synchronized
elections assume office;38 (2) to hold special elections in the ARMM, with the terms of those elected to
expire when those elected in the synchronized elections assume office; or (3) to authorize the President
to appoint OICs, pursuant to Section 3 of RA No. 10153, also until those elected in the synchronized
elections assume office.
As will be abundantly clear in the discussion below, Congress, in choosing to grant the President the
power to appoint OICs, chose the correct option and passed RA No. 10153 as a completely valid law.
We rule out the first option holdover for those who were elected in executive and legislative positions in
the ARMM during the 2008-2011 term as an option that Congress could have chosen because a
holdover violates Section 8, Article X of the Constitution. This provision states:
Section 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three consecutive
terms. [emphases ours]
Since elective ARMM officials are local officials, they are covered and bound by the three-year term limit
prescribed by the Constitution; they cannot extend their term through a holdover.
C. The COMELEC has no authority to order special elections
Another option proposed by the petitioner in G.R. No. 197282 is for this Court to compel COMELEC to
immediately conduct special elections pursuant to Section 5 and 6 of Batas Pambansa Bilang (BP) 881.
The power to fix the date of elections is essentially legislative in nature, as evident from, and exemplified
by, the following provisions of the Constitution:
Section 8, Article VI, applicable to the legislature, provides:
Section 8. Unless otherwise provided by law, the regular election of the Senators and the Members of the
House of Representatives shall be held on the second Monday of May. [Emphasis ours]
Section 4(3), Article VII, with the same tenor but applicable solely to the President and Vice-President,
states:
xxxx
Section 4. xxx Unless otherwise provided by law, the regular election for President and Vice-President
shall be held on the second Monday of May. [Emphasis ours]
while Section 3, Article X, on local government, provides:

Section 3. The Congress shall enact a local government code which shall provide for xxx the
qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local
officials[.] [Emphases ours]
These provisions support the conclusion that no elections may be held on any other date for the positions
of President, Vice President, Members of Congress and local officials, except when so provided by
another Act of Congress, or upon orders of a body or officer to whom Congress may have delegated
either the power or the authority to ascertain or fill in the details in the execution of that power. 63
Notably, Congress has acted on the ARMM elections by postponing the scheduled August 2011 elections
and setting another date May 13, 2011 for regional elections synchronized with the presidential,
congressional and other local elections. By so doing, Congress itself has made a policy decision in the
exercise of its legislative wisdom that it shall not call special elections as an adjustment measure in
synchronizing the ARMM elections with the other elections.
D. The Court has no power to shorten the terms of elective officials
Even assuming that it is legally permissible for the Court to compel the COMELEC to hold special
elections, no legal basis likewise exists to rule that the newly elected ARMM officials shall hold office only
until the ARMM officials elected in the synchronized elections shall have assumed office.
In the first place, the Court is not empowered to adjust the terms of elective officials. Based on the
Constitution, the power to fix the term of office of elective officials, which can be exercised only in the
case of barangay officials,67 is specifically given to Congress.
E. The Presidents Power to Appoint OICs
The above considerations leave only Congress chosen interim measure RA No. 10153 and the
appointment by the President of OICs to govern the ARMM during the pre-synchronization period
pursuant to Sections 3, 4 and 5 of this law as the only measure that Congress can make. This choice
itself, however, should be examined for any attendant constitutional infirmity.
At the outset, the power to appoint is essentially executive in nature, and the limitations on or
qualifications to the exercise of this power should be strictly construed; these limitations or qualifications
must be clearly stated in order to be recognized.73 The appointing power is embodied in Section 16,
Article VII of the Constitution, which states:
Section 16. The President shall nominate and, with the consent of the Commission on Appointments,
appoint the heads of the executive departments, ambassadors, other public ministers and consuls or
officers of the armed forces from the rank of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution. He shall also appoint all other officers of the
Government whose appointments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in
rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or
boards. [emphasis ours]
This provision classifies into four groups the officers that the President can appoint. These are:
First, the heads of the executive departments; ambassadors; other public ministers and consuls; officers
of the Armed Forces of the Philippines, from the rank of colonel or naval captain; and other officers whose
appointments are vested in the President in this Constitution;
Second, all other officers of the government whose appointments are not otherwise provided for by law;

Third, those whom the President may be authorized by law to appoint; and
Fourth, officers lower in rank whose appointments the Congress may by law vest in the President alone. 74
Since the Presidents authority to appoint OICs emanates from RA No. 10153, it falls under the third
group of officials that the President can appoint pursuant to Section 16, Article VII of the Constitution.
Thus, the assailed law facially rests on clear constitutional basis.
As we have already established in our discussion of the supermajority and plebiscite requirements, the
legal reality is that RA No. 10153 did not amend RA No. 9054. RA No. 10153, in fact, provides only for
synchronization of elections and for the interim measures that must in the meanwhile prevail. And this is
how RA No. 10153 should be read in the manner it was written and based on its unambiguous facial
terms.75 Aside from its order for synchronization, it is purely and simply an interim measure responding to
the adjustments that the synchronization requires.
B. Autonomy in the ARMM
It is further argued that while synchronization may be constitutionally mandated, it cannot be used to
defeat or to impede the autonomy that the Constitution granted to the ARMM. Phrased in this manner,
one would presume that there exists a conflict between two recognized Constitutional mandates
synchronization and regional autonomy such that it is necessary to choose one over the other.
We find this to be an erroneous approach that violates a basic principle in constitutional construction ut
magis valeat quam pereat: that the Constitution is to be interpreted as a whole, 81 and one mandate should
not be given importance over the other except where the primacy of one over the other is clear.
In other words, the autonomy granted to the ARMM cannot be invoked to defeat national policies and
concerns. Since the synchronization of elections is not just a regional concern but a national one, the
ARMM is subject to it; the regional autonomy granted to the ARMM cannot be used to exempt the region
from having to act in accordance with a national policy mandated by no less than the Constitution.
Consti, Art. X, Section 8. The term of office of elective local officials, except barangay officials, which shall
be determined by law, shall be three years and no such official shall serve for more than three consecutive
terms. Voluntary renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of his service for the full term for which he was elected.
Sec. 43. Term of office. (a) The term of office of all elective officials elected after the effectivity of this
Code shall be three (3) years, starting from noon of June 30, 1992 or such date as may be provided for by
law, except that of elective barangay officials and members of the sangguniang kabataan: Provided, That
all local officials first elected during the local elections immediately following the ratification of the 1987
Constitution shall serve until noon of June 30, 1992.
"(b) No local elective official shall serve for more than three (3) consecutive terms in the same position.
Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the
continuity of service for the full term for which the elective official concerned was elected.
"(c) The term of barangay officials and members of the sangguniang kabataan shall be for five (5) years,
which shall begin after the regular election of barangay officials on the second Monday of May
1997: Provided, That the sangguniang kabataan members who were elected in the May 1996 elections
shall serve until the next regular election of barangay officials."
REPUBLIC ACT NO. 9164

AN ACT PROVIDING FOR SYNCHRONIZED BARANGAY AND SANGGUNIANG KABATAAN

ELECTIONS, AMENDING REPUBLIC ACT NO. 7160, AS AMENDED, OTHERWISE KNOWN AS THE
"LOCAL GOVERNMENT CODE OF 1991", AND FOR OTHER PURPOSES
SECTION 1. Date of Election. - There shall be synchronized barangay and sangguniang kabataan
elections which shall be held on July 15, 2002. Subsequent synchronized barangay and sangguniang
kabataan elections shall be held on the last Monday of October 2007 and every three (3) years thereafter.
Section 2. Term of Office. The term of office of all barangay and sangguniang kabataan officials after
the effectivity of this Act shall be three (3) years.
No barangay elective official shall serve for more than three (3) consecutive terms in the same position:
Provided, however, That the term of office shall be reckoned from the 1994 barangay elections. Voluntary
renunciation of office for any length of time shall not be considered as an interruption in the continuity of
service for the full term for which the elective official was elected.
Section 3. Registration. For purposes of the July 15, 2002 synchronized barangay and sangguniang
kabataan elections provided under this Act, a special registration of voters for the sangguniang kabataan
shall be fixed by the Commission on Elections (COMELEC). Subsequent registration of barangay and
sangguniang kabataan voters shall be governed by Republic Act No. 8189.
SEC. 4. Assumption of Office. - The term of office of the barangay and sangguniang kabataan officials
elected under this Act shall commence on August 15, 2002, next following their elections. The term of
office of the barangay and sangguniang kabataan officials elected in the October 2007 election and
subsequent elections shall commence at noon of November 30 next following their election."
SEC. 5. Hold Over. - All incumbent barangay and all sangguniang kabataan officials shall remain in office
unless sooner removed or suspended for cause until their successors shall have been elected and
qualified Provided, however, That barangay and all sangguniang kabataan officials who are ex
officio members of the sangguniang bayan, sangguniang panlungsod or sangguniang panlalawigan as
the case may be shall continue to serve as such members in the sanggunian concerned until the next
barangay election. The Liga ng mga Barangay at the municipal, city, and provincial levels shall, within
thirty (30) days after the next barangay election, conduct elections for ex officio positions in the
sanggunians under the supervision of the Department of the Interior and Local Government."
Section 6. Section 424 of Republic Act No. 7160, otherwise known as the Local Government Code of
1991, is hereby amended to read as follows:
"Sec. 424. Katipunan ng Kabataan. The katipunan ng kabataan shall be composed of
Filipino citizens actually residing in the barangay for at least six (6) months, who are
fifteen (15) but less than eighteen (18) years of age on the day of the election, and who
are duly registered in the list of the sangguniang kabataan or in the official barangay list
in the custody of the barangay secretary."
Section 7. Section 428 of Republic Act No. 7160, otherwise known as the Local Government Code of
1991, is hereby amended to read as follows:
"Sec. 428. Qualifications. An elective official of the sangguniang kabataan must be a
Filipino citizen, a qualified voter of the katipunan ng kabataan, a resident of
the barangay for at least one (1) year immediately prior to election, at least fifteen (15)
years but less than eighteen (18) years of age on the day of the election, able to read and
write Filipino, English, or the local dialect, and must not have been convicted of any crime
involving moral turpitude."

BENJAMIN U. BORJA, JR., petitioner,

vs.
COMMISSION ON ELECTIONS and JOSE T. CAPCO, JR., respondents.
This case presents for determination the scope of the constitutional provision barring elective local
officials, with the exception of barangay officials, from serving more than three consecutive terms. In
particular, the question is whether a vice-mayor who succeeds to the office of mayor by operation of law
and serves the remainder of the term is considered to have served a term in that office for the purpose of
the three-term limit.
Private respondent Jose T. Capco, Jr. was elected vice-mayor of Pateros on January 18, 1988 for a term
ending June 30, 1992. On September 2, 1989, he became mayor, by operation of law, upon the death of
the incumbent, Cesar Borja. On May 11, 1992, he ran and was elected mayor for a term of three years
which ended on June 30, 1995. On May 8, 1995, he was reelected mayor for another term of three years
ending June 30, 1998. 1
On March 27, 1998, private respondent Capco filed a certificate of candidacy for mayor of Pateros relative
to the May 11, 1998 elections. Petitioner Benjamin U. Borja Jr., who was also a candidate for mayor,
sought Capco's disqualification on the theory that the latter would have already served as mayor for three
consecutive terms by June 30, 1998 and would therefore be ineligible to serve for another term after that.
Article X, 8 of the Constitution provides:
Sec. 8. The term of office of elective local officials, except barangay officials,
which shall be determined by law, shall be three years and no such official shall
serve for more than three consecutive terms. Voluntary renunciation of the office
for any length of time shall not be considered as an interruption in the continuity
of his service for the full term for which he was elected.
This provision is restated in 43(b) of the Local Government Code (R.A. No. 7160):
Sec. 43. Term of Office. . . .
(b) No local elective official shall serve for more than three (3) consecutive terms
in the same position. Voluntary renunciation of the office for any length of time
shall not be considered as an interruption in the continuity of service for the full
term for which the elective official concerned was elected. . . .
First, to prevent the establishment of political dynasties is not the only policy embodied in the
constitutional provision in question. The other policy is that of enhancing the freedom of choice of the
people. To consider, therefore, only stay in office regardless of how the official concerned came to that
office whether by election or by succession by operation of law would be to disregard one of the
purposes of the constitutional provision in question.
Two ideas thus emerge from a consideration of the proceedings of the Constitutional Commission. The
first is the notion of service of term, derived from the concern about the accumulation of power as a result
of a prolonged stay in office. The second is the idea of election, derived from the concern that the right of
the people to choose those whom they wish to govern them be preserved.
Indeed a fundamental tenet of representative democracy is that the people should be allowed to choose
those whom they please to govern them. 11 To bar the election of a local official because he has already
served three terms, although the first as a result of succession by operation of law rather than election,
would therefore be to violate this principle.

Second, not only historical examination but textual analysis as well supports the ruling of the COMELEC
that Art. X, 8 contemplates service by local officials for three consecutive terms as a result of election.
The first sentence speaks of "the term of office of elective local officials" and bars "such official[s]" from
serving for more than three consecutive terms. The second sentence, in explaining when an elective local
official may be deemed to have served his full term of office, states that "voluntary renunciation of the
office for any length of time shall not be considered as an interruption in the continuity of his service for
the full term for which he was elected." The term served must therefore be one "for which [the official
concerned] was elected." The purpose of this provision is to prevent a circumvention of the limitation on
the number of terms an elective local official may serve. Conversely, if he is not serving a term for which
he was elected because he is simply continuing the service of the official he succeeds, such official
cannot be considered to have fully served the term notwithstanding his voluntary renunciation of office
prior to its expiration.
There is a difference, however, between the case of a vice-mayor and that of a member of the House of
Representatives who succeeds another who dies, resigns, becomes incapacitated, or is removed from
office. The vice-mayor succeeds to the mayorship by operation of law. 14 On the other hand, the
Representative is elected to fill the vacancy. 15 In a real sense, therefore, such Representative serves a
term for which he was elected. As the purpose of the constitutional provision is to limit the right to be
elected and to serve in Congress, his service of the unexpired term is rightly counted as his first term.
Rather than refute what we believe to be the intendment of Art. X, 8 with regard to elective local officials,
the case of a Representative who succeeds another confirms the theory.
To recapitulate, the term limit for elective local officials must be taken to refer to the right to be elected as
well as the right to serve in the same elective position. Consequently, it is not enough that an individual
has served three consecutive terms in an elective local office, he must also have been elected to the
same position for the same number of times before the disqualification can apply. This point can be made
clearer by considering the following cases or situations:
Case No. 1. Suppose A is a vice-mayor who becomes mayor by reason of the
death of the incumbent. Six months before the next election, he resigns and is
twice elected thereafter. Can he run again for mayor in the next election?
Yes, because although he has already first served as mayor by succession and
subsequently resigned from office before the full term expired, he has not actually
served three full terms in all for the purpose of applying the term limit. Under Art.
X, 8, voluntary renunciation of the office is not considered as an interruption in
the continuity of his service for the full term only if the term is one "for which he
was elected." Since A is only completing the service of the term for which the
deceased and not he was elected, A cannot be considered to have completed
one term. His resignation constitutes an interruption of the full term.
Case No. 2. Suppose B is elected mayor and, during his first term, he is twice
suspended for misconduct for a total of 1 year. If he is twice reelected after that,
can he run for one more term in the next election?
Yes, because he has served only two full terms successively.
In both cases, the mayor is entitled to run for reelection because the two conditions for the application of
the disqualification provisions have not concurred, namely, that the local official concerned has been
elected three consecutive times and that he has fully served three consecutive terms. In the first case,
even if the local official is considered to have served three full terms notwithstanding his resignation
before the end of the first term, the fact remains that he has not been elected three times. In the second
case, the local official has been elected three consecutive times, but he has not fully served three
consecutive terms.

Case No. 3. The case of vice-mayor C who becomes mayor by succession

involves a total failure of the two conditions to concur for the purpose of applying
Art. X, 8. Suppose he is twice elected after that term, is he qualified to run again
in the next election?
Yes, because he was not elected to the office of mayor in the first term but simply
found himself thrust into it by operation of law. Neither had he served the full term
because he only continued the service, interrupted by the death, of the deceased
mayor.
To consider C in the third case to have served the first term in full and therefore ineligible to run a third
time for reelection would be not only to falsify reality but also to unduly restrict the right of the people to
choose whom they wish to govern them. If the vice-mayor turns out to be a bad mayor, the people can
remedy the situation by simply not reelecting him for another term. But if, on the other hand, he proves to
be a good mayor, there will be no way the people can return him to office (even if it is just the third time he
is standing for reelection) if his service of the first term is counted as one for the purpose of applying the
term limit.
To consider C as eligible for reelection would be in accord with the understanding of the Constitutional
Commission that while the people should be protected from the evils that a monopoly of political power
may bring about, care should be taken that their freedom of choice is not unduly curtailed.
ROMEO LONZANIDA, petitioner,
vs.
THE HONORABLE COMMISSION ON ELECTION and EUFEMIO MULI, respondents.
Petitioner Romeo Lonzanida was duly elected and served two consecutive terms as municipal mayor of
San Antonio, Zambales prior to the May 8, 1995 elections. In the May 1995 elections Lonzanida ran for
mayor of San Antonio, Zambales and was again proclaimed winner. He assumed office and discharged
the duties thereof. His proclamation in 1995 was however contested by his then opponent Juan Alvez who
filed an election protest before the Regional Trial Court of Zambales, which in a decision dated January 9,
1997 declared a failure of elections. The court ruled:
PREMISES CONSIDERED, this court hereby renders judgment declaring the
results of the election for the office of the mayor in San Antonio, Zambales last
May 8, 1995 as null and void on the ground that there was a failure of election.
Accordingly, the office of the mayor of the Municipality of San Antonio, Zambales
is hereby declared vacant.
The issue before us is whether petitioner Lonzanida's assumption of office as mayor of San Antonio
Zambales from May 1995 to March 1998 may be considered as service of one full term for the purpose of
applying the three-term limit for elective local government officials.
It is not disputed that the petitioner was previously elected and served two consecutive terms as mayor of
San Antonio Zambales prior to the May 1995 mayoral elections. In the May 1995 elections he again ran
for mayor of San Antonio, Zambales and was proclaimed winner. He assumed office and discharged the
rights and duties of mayor until March 1998 when he was ordered to vacate the post by reason of the
COMELEC decision dated November 13, 1997 on the election protest against the petitioner which
declared his opponent Juan Alvez, the duly elected mayor of San Antonio. Alvez served the remaining
portion of the 1995-1998 mayoral term.
The two requisites for the application of the three term rule are absent. First, the petitioner cannot be
considered as having been duly elected to the post in the May 1995 elections, and second, the petitioner

did not fully serve the 1995-1998 mayoral term by reason of involuntary relinquishment of office. After a
re-appreciation and revision of the contested ballots the COMELEC itself declared by final judgment that
petitioner Lonzanida lost in the May 1995 mayoral elections and his previous proclamation as winner was
declared null and void. His assumption of office as mayor cannot be deemed to have been by reason of a
valid election but by reason of a void proclamation. It has been repeatedly held by this court that a
proclamation subsequently declared void is no proclamation at all 5 and while a proclaimed candidate may
assume office on the strength of the proclamation of the Board of Canvassers he is only a presumptive
winner who assumes office subject to the final outcome of the election protest. 6 Petitioner Lonzanida did
not serve a term as mayor of San Antonio, Zambales from May 1995 to March 1998 because he was not
duly elected to the post; he merely assumed office as presumptive winner, which presumption was later
overturned by the COMELEC when it decided with finality that Lonzanida lost in the May 1995 mayoral
elections.
Second, the petitioner cannot be deemed to have served the May 1995 to 1998 term because he was
ordered to vacate his post before the expiration of the term. The respondents' contention that the
petitioner should be deemed to have served one full term from May 1995-1998 because he served the
greater portion of that term has no legal basis to support it; it disregards the second requisite for the
application of the disqualification, i.e., that he has fully served three consecutive terms. The second
sentence of the constitutional provision under scrutiny states, "Voluntary renunciation of office for
any length of time shall not be considered as an interruption in the continuity of service for the full term for
which he was elected. "The clear intent of the framers of the constitution to bar any attempt to circumvent
the three-term limit by a voluntary renunciation of office and at the same time respect the people's choice
and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a
term does not cancel the renounced term in the computation of the three term limit; conversely,
involuntary severance from office for any length of time short of the full term provided by law amounts to
an interruption of continuity of service. The petitioner vacated his post a few months before the next
mayoral elections, not by voluntary renunciation but in compliance with the legal process of writ of
execution issued by the COMELEC to that effect. Such involuntary severance from office is an
interruption of continuity of service and thus, the petitioner did not fully serve the 1995-1998 mayoral term.
In sum, the petitioner was not the duly elected mayor and that he did not hold office for the full term;
hence, his assumption of office from 1995 to March 1998 cannot be counted as a term for purposes of
computing the three term limit. The Resolution of the COMELEC finding him disqualified on this ground to
run in the May 1998 mayoral elections should therefore be set aside.
The respondents harp on the delay in resolving the election protest between petitioner and his then
opponent Alvez which took roughly about three years and resultantly extended the petitioners incumbency
in an office to which he was not lawfully elected. We note that such delay cannot be imputed to the
petitioner. There is no specific allegation nor proof that the delay was due to any political maneuvering on
his part to prolong his stay in office. Moreover, protestant Alvez, was not without legal recourse to move
for the early resolution of the election protest while it was pending before the regional trial court or to file a
motion for the execution of the regional trial court's decision declaring the position of mayor vacant and
ordering the vice-mayor to assume office while the appeal was pending with the COMELEC. Such delay
which is not here shown to have intentionally sought by the petitioner to prolong his stay in office cannot
serve as basis to bar his right to be elected and to serve his chosen local government post in the
succeeding mayoral election.
RAYMUNDO M. ADORMEO, petitioner,
vs.
COMMISSION ON ELECTIONS and RAMON Y. TALAGA, JR., respondents.
Petitioner and private respondent were the only candidates who filed their certificates of candidacy
for mayor of Lucena City in the May 14, 2001 elections. Private respondent was then the incumbent
mayor.

Private respondent Talaga, Jr. was elected mayor in May 1992. He served the full term. Again, he
was re-elected in 1995-1998. In the election of 1998, he lost to Bernard G. Tagarao. In the recall election
of May 12, 2000, he again won and served the unexpired term of Tagarao until June 30, 2001.
On March 2, 2001, petitioner filed with the Office of the Provincial Election Supervisor, Lucena City a
Petition to Deny Due Course to or Cancel Certificate of Candidacy and/or Disqualification of Ramon Y.
Talaga, Jr., on the ground that the latter was elected and had served as city mayor for three (3)
consecutive terms as follows: (1) in the election of May 1992, where he served the full term; (2) in the
election of May 1995, where he again served the full term; and, (3) in the recall election of May 12, 2000,
where he served only the unexpired term of Tagarao after having lost to Tagarao in the 1998 election.
To recapitulate, the term limit for elective local officials must be taken to refer to the right to be elected as
well as the right to serve in the same elective position. Consequently, it is not enough that an individual
has served three consecutive terms in an elective local office, he must also have been elected to the
same position for the same number of times before the disqualification can apply. This point can be made
clearer by considering the following case or situation:
xxx
Case No. 2. Suppose B is elected mayor and, during his first term, he is twice suspended for misconduct
for a total of 1 year. If he is twice reelected after that, can he run for one more term in the next election?
Yes, because he has served only two full terms successively.
xxx
To consider C as eligible for reelection would be in accord with the understanding of the Constitutional
Commission that while the people should be protected from the evils that a monopoly of political power
may bring about, care should be taken that their freedom of choice is not unduly curtailed.
Likewise, in the case of Lonzanida vs. COMELEC, 311 SCRA 602, 611 (1999), we said,
This Court held that the two conditions for the application of the disqualification must concur: a) that the
official concerned has been elected for three consecutive terms in the same local government post and 2)
that he has fully served three consecutive terms.
Accordingly, COMELECs ruling that private respondent was not elected for three (3) consecutive
terms should be upheld. For nearly two years he was a private citizen. The continuity of his mayorship
was disrupted by his defeat in the 1998 elections.
Neither can respondents victory in the recall election be deemed a violation of Section 8, Article X of the
Constitution as voluntary renunciation for clearly it is not.
VICTORINO DENNIS M. SOCRATES, Mayor of Puerto Princesa City, petitioner,
vs.
THE COMMISSION ON ELECTIONS, et al, respondents.
On July 2, 2002, 312 out of 528 members of the then incumbent barangay officials of the Puerto Princesa
convened themselves into a Preparatory Recall Assembly ("PRA" for brevity) at the Gymnasium of
Barangay San Jose from 9:00 a.m. to 12:00 noon. The PRA was convened to initiate the recall 2 of
Victorino Dennis M. Socrates ("Socrates" for brevity) who assumed office as Puerto Princesa's mayor on
June 30, 2001. The members of the PRA designated Mark David M. Hagedorn, president of the
Association of Barangay Captains, as interim chair of the PRA.

On the same date, the PRA passed Resolution No. 01-02 ("Recall Resolution" for brevity) which declared
its loss of confidence in Socrates and called for his recall. The PRA requested the COMELEC to schedule
the recall election for mayor within 30 days from receipt of the Recall Resolution.
On August 23, 2002, Edward M. Hagedorn ("Hagedorn" for brevity) filed his certificate of candidacy for
mayor in the recall election.
On August 17, 2002, Ma. Flores F. Adovo ("Adovo" for brevity) and Merly E. Gilo ("Gilo" for brevity) filed a
petition before the COMELEC, docketed as SPA No. 02-492, to disqualify Hagedorn from running in the
recall election and to cancel his certificate of candidacy. On August 30, 2002, a certain Bienvenido Ollave,
Sr. ("Ollave" for brevity) filed a petition-in-intervention in SPA No. 02-492 also seeking to disqualify
Hagedorn. On the same date, a certain Genaro V. Manaay filed another petition, docketed as SPA No. 02539, against Hagedorn alleging substantially the same facts and involving the same issues. The petitions
were all anchored on the ground that "Hagedorn is disqualified from running for a fourth consecutive term,
having been elected and having served as mayor of the city for three (3) consecutive full terms
immediately prior to the instant recall election for the same post." Subsequently, SPA Nos. 02-492 and 02539 were consolidated.
Second Issue: Hagedorn's qualification to run for mayor
in the recall election of September 24, 2002.
The three-term limit rule for elective local officials is found in Section 8, Article X of the Constitution, which
states:
"Section 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three consecutive
terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption
in the continuity of his service for the full term for which he was elected."
This three-term limit rule is reiterated in Section 43 (b) of RA No. 7160, otherwise known as the Local
Government Code, which provides:
"Section 43. Term of Office. (a) x x x
(b) No local elective official shall serve for more than three (3) consecutive terms in the
same position. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of service for the full term for which the
elective official was elected."
These constitutional and statutory provisions have two parts. The first part provides that an elective local
official cannot serve for more than three consecutive terms. The clear intent is that only consecutive terms
count in determining the three-term limit rule. The second part states that voluntary renunciation of office
for any length of time does not interrupt the continuity of service. The clear intent is that involuntary
severance from office for any length of time interrupts continuity of service and prevents the service
before and after the interruption from being joined together to form a continuous service or consecutive
terms.
After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth term.
The prohibited election refers to the next regular election for the same office following the end of the third
consecutive term. Any subsequent election, like a recall election, is no longer covered by the prohibition
for two reasons. First, a subsequent election like a recall election is no longer an immediate reelection

after three consecutive terms. Second, the intervening period constitutes an involuntary interruption in the
continuity of service.
The framers of the Constitution used the same "no immediate reelection" question in voting for the term
limits of Senators9 and Representatives of the House.10
Clearly, what the Constitution prohibits is an immediate reelection for a fourth term following three
consecutive terms. The Constitution, however, does not prohibit a subsequent reelection for a fourth term
as long as the reelection is not immediately after the end of the third consecutive term. A recall election
mid-way in the term following the third consecutive term is a subsequent election but not an immediate
reelection after the third term.
Neither does the Constitution prohibit one barred from seeking immediate reelection to run in any other
subsequent election involving the same term of office. What the Constitution prohibits is a consecutive
fourth term. The debates in the Constitutional Commission evidently show that the prohibited election
referred to by the framers of the Constitution is the immediate reelection after the third term, not any other
subsequent election.
In the case of Hagedorn, his candidacy in the recall election on September 24, 2002 is not an immediate
reelection after his third consecutive term which ended on June 30, 2001. The immediate reelection that
the Constitution barred Hagedorn from seeking referred to the regular elections in 2001. Hagedorn did not
seek reelection in the 2001 elections.
Hagedorn was elected for three consecutive terms in the 1992, 1995 and 1998 elections and served in full
his three consecutive terms as mayor of Puerto Princesa. Under the Constitution and the Local
Government Code, Hagedorn could no longer run for mayor in the 2001 elections. The Constitution and
the Local Government Code disqualified Hagedorn, who had reached the maximum three-term limit, from
running for a fourth consecutive term as mayor. Thus, Hagedorn did not run for mayor in the 2001
elections.16 Socrates ran and won as mayor of Puerto Princesa in the 2001 elections. After Hagedorn
ceased to be mayor on June 30, 2001, he became a private citizen until the recall election of September
24, 2002 when he won by 3,018 votes over his closest opponent, Socrates.
From June 30, 2001 until the recall election on September 24, 2002, the mayor of Puerto Princesa was
Socrates. During the same period, Hagedorn was simply a private citizen. This period is clearly an
interruption in the continuity of Hagedorn's service as mayor, not because of his voluntary renunciation,
but because of a legal prohibition. Hagedorn's three consecutive terms ended on June 30, 2001.
Hagedorn's new recall term from September 24, 2002 to June 30, 2004 is not a seamless continuation of
his previous three consecutive terms as mayor. One cannot stitch together Hagedorn's previous threeterms with his new recall term to make the recall term a fourth consecutive term because factually it is
not. An involuntary interruption occurred from June 30, 2001 to September 24, 2002 which broke the
continuity or consecutive character of Hagedorn's service as mayor.
In Hagedorn's case, the nearly 15-month period he was out of office, although short of a full term of three
years, constituted an interruption in the continuity of his service as mayor. The Constitution does not
require the interruption or hiatus to be a full term of three years. The clear intent is that interruption "for
any length of time," as long as the cause is involuntary, is sufficient to break an elective local official's
continuity of service.
We held in Adormeo that the period an elective local official is out of office interrupts the continuity of his
service and prevents his recall term from being stitched together as a seamless continuation of his
previous two consecutive terms. In the instant case, we likewise hold that the nearly 15 months Hagedorn
was out of office interrupted his continuity of service and prevents his recall term from being stitched
together as a seamless continuation of his previous three consecutive terms. The only difference between
Adormeo and the instant case is the time of the interruption. In Adormeo, the interruption occurred after

the first two consecutive terms. In the instant case, the interruption happened after the first three
consecutive terms. In both cases, the respondents were seeking election for a fourth term.
In summary, we hold that Hagedorn is qualified to run in the September 24, 2002 recall election for mayor
of Puerto Princesa because:
1. Hagedorn is not running for immediate reelection following his three consecutive terms
as mayor which ended on June 30, 2001;
2. Hagedorn's continuity of service as mayor was involuntarily interrupted from June 30,
2001 to September 24, 2002 during which time he was a private citizen;
3. Hagedorn's recall term from September 24, 2002 to June 30, 2004 cannot be made to
retroact to June 30, 2001 to make a fourth consecutive term because factually the recall
term is not a fourth consecutive term; and
4. Term limits should be construed strictly to give the fullest possible effect to the right of
the electorate to choose their leaders.
ARSENIO A. LATASA, Petitioner,
vs.
COMMISSION ON ELECTIONS, and ROMEO SUNGA, Respondents.
Petitioner Arsenio A. Latasa, was elected mayor of the Municipality of Digos, Davao del Sur in the
elections of 1992, 1995, and 1998. During petitioners third term, theMunicipality of Digos was declared a
component city, to be known as the City of Digos. A plebiscite conducted on September 8, 2000 ratified
Republic Act No. 8798 entitled, An Act Converting the Municipality of Digos, Davao del Sur Province into
a Component City to be known as the City of Digos or the Charter of the City of Digos. This event also
marked the end of petitioners tenure as mayor of the Municipality of Digos. However, under Section 53,
Article IX of the Charter, petitioner was mandated to serve in a hold-over capacity as mayor of the new
City of Digos. Hence, he took his oath as the city mayor.
On February 28, 2001, petitioner filed his certificate of candidacy for city mayor for theMay 14,
2001 elections. He stated therein that he is eligible therefor, and likewise disclosed that he had already
served for three consecutive terms as mayor of the Municipality of Digos and is now running for the first
time for the position of city mayor.
The present case raises a novel issue with respect to an explicit Constitutional mandate: whether or not
petitioner Latasa is eligible to run as candidate for the position of mayor of the newly-created City
of Digos immediately after he served for three consecutive terms as mayor of the Municipality of Digos.
As a rule, in a representative democracy, the people should be allowed freely to choose those who will
govern them. Article X, Section 8 of the Constitution is an exception to this rule, in that it limits the range
of choice of the people.
Section 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three consecutive
terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption
in the continuity of his service for the full term for which he was elected.

An elective local official, therefore, is not barred from running again in for same local government post,
unless two conditions concur: 1.) that the official concerned has been elected for three consecutive terms
to the same local government post, and 2.) that he has fully served three consecutive terms. 14
On the other hand, Section 2 of the Charter of the City of Digos provides:
Section 2. The City of Digos --- The Municipality of Digos shall be converted into a component city to be
known as the City of Digos, hereinafter referred to as the City, which shall comprise the present territory
of the Municipality of Digos, Davao del Sur Province. The territorial jurisdiction of the City shall be within
the present metes and bounds of the Municipality of Digos. x x x
Moreover, Section 53 of the said Charter further states:
Section 53. Officials of the City of Digos. --- The present elective officials of theMunicipality of Digos shall
continue to exercise their powers and functions until such a time that a new election is held and the dulyelected officials shall have already qualified and assumed their offices. x x x.
As seen in the aforementioned provisions, this Court notes that the delineation of the metes and bounds
of the City of Digos did not change even by an inch the land area previously covered by
the Municipality of Digos. This Court also notes that the elective officials of
the Municipality of Digos continued to exercise their powers and functions until elections were held for
the new city officials.
True, the new city acquired a new corporate existence separate and distinct from that of the municipality.
This does not mean, however, that for the purpose of applying the subject Constitutional provision, the
office of the municipal mayor would now be construed as a different local government post as that of the
office of the city mayor. As stated earlier, the territorial jurisdiction of the City of Digos is the same as that
of the municipality. Consequently, the inhabitants of the municipality are the same as those in the city.
These inhabitants are the same group of voters who elected petitioner Latasa to be their municipal mayor
for three consecutive terms. These are also the same inhabitants over whom he held power and authority
as their chief executive for nine years.
In the present case, petitioner Latasa was, without a doubt, duly elected as mayor in the May 1998
elections. Can he then be construed as having involuntarily relinquished his office by reason of the
conversion of Digos from municipality to city? This Court believes that he did involuntarily relinquish his
office as municipal mayor since the said office has been deemed abolished due to the conversion.
However, the very instant he vacated his office as municipal mayor, he also assumed office as city mayor.
Unlike in Lonzanida, where petitioner therein, for even just a short period of time, stepped down from
office, petitioner Latasa never ceased from acting as chief executive of the local government unit. He
never ceased from discharging his duties and responsibilities as chief executive of Digos.
This Court has consistently ruled that the fact that a plurality or a majority of the votes are cast for an
ineligible candidate at a popular election, or that a candidate is later declared to be disqualified to hold
office, does not entitle the candidate who garnered the second highest number of votes to be declared
elected. The same merely results in making the winning candidates election a nullity.23 In the present
case, moreover, 13,650 votes were cast for private respondent Sunga as against the 25,335 votes cast
for petitioner Latasa.24 The second placer is obviously not the choice of the people in that particular
election. In any event, a permanent vacancy in the contested office is thereby created which should be
filled by succession.25
FRANCIS G. ONG, Petitioner,
vs.
JOSEPH STANLEY ALEGRE and COMMISSION ON ELECTIONS, Respondents.

Private respondent Joseph Stanley Alegre (Alegre) and petitioner Francis Ong (Francis) were candidates
who filed certificates of candidacy for mayor of San Vicente, Camarines Norte in the May 10, 2004
elections. Francis was then the incumbent mayor.
On January 9, 2004, Alegre filed with the COMELEC Provincial Office a Petition to Disqualify, Deny Due
Course and Cancel Certificate of Candidacy3 of Francis. Docketed as SPA Case No. 04-048, the petition
to disqualify was predicated on the three-consecutive term rule, Francis having, according to Alegre, ran
in the May 1995, May 1998, and May 2001 mayoralty elections and have assumed office as mayor and
discharged the duties thereof for three (3) consecutive full terms corresponding to those elections.
To digress a bit, the May 1998 elections saw both Alegre and Francis opposing each other for the office of
mayor of San Vicente, Camarines Norte, with the latter being subsequently proclaimed by COMELEC
winner in that contest. Alegre subsequently filed an election protest, docketed as Election Case No.
6850 before the Regional Trial Court (RTC) at Daet, Camarines Norte. In it, the RTC declared Alegre as
the duly elected mayor in that 1998 mayoralty contest, 4 albeit the decision came out only on July 4, 2001,
when Francis had fully served the 1998-2001 mayoralty term and was in fact already starting to serve the
2001-2004 term as mayor-elect of the municipality of San Vicente.
A resolution of the issues thus formulated hinges on the question of whether or not petitioner Franciss
assumption of office as Mayor of San Vicente, Camarines Norte for the mayoralty term 1998 to 2001
should be considered as full service for the purpose of the three-term limit rule.
Respondent COMELEC resolved the question in the affirmative. Petitioner Francis, on the other hand,
disagrees. He argues that, while he indeed assumed office and discharged the duties as Mayor of San
Vicente for three consecutive terms, his proclamation as mayor-elect in the May 1998 election was
contested and eventually nullified per the decision of the RTC of Daet, Camarines Norte dated July 4,
2001. Pressing the point, petitioner argues, citing Lonzanida vs. Comelec15, that a proclamation
subsequently declared void is no proclamation at all and one assuming office on the strength of a
protested proclamation does so as a presumptive winner and subject to the final outcome of the election
protest.
With the view we take of the case, the disqualifying requisites are present herein, thus effectively barring
petitioner Francis from running for mayor of San Vicente, Camarines Norte in the May 10, 2004 elections.
There can be no dispute about petitioner Francis Ong having been duly elected mayor of that municipality
in the May 1995 and again in the May 2001 elections and serving the July 1, 1995- June 30, 1998 and the
July 1, 2001-June 30, 2004 terms in full. The herein controversy revolves around the 1998-2001 mayoral
term, albeit there can also be no quibbling that Francis ran for mayor of the same municipality in the May
1998 elections and actually served the 1998-2001 mayoral term by virtue of a proclamation initially
declaring him mayor-elect of the municipality of San Vicente. The question that begs to be addressed,
therefore, is whether or not Franciss assumption of office as Mayor of San Vicente, Camarines Norte
from July 1, 1998 to June 30, 2001, may be considered as one full term service in the context of the
consecutive three-term limit rule.
We hold that such assumption of office constitutes, for Francis, "service for the full term", and should be
counted as a full term served in contemplation of the three-term limit prescribed by the constitutional and
statutory provisions, supra, barring local elective officials from being elected and serving for more than
three consecutive term for the same position.
It is true that the RTC-Daet, Camarines Norte ruled in Election Protest Case No. 6850, 17 that it was
Francis opponent (Alegre) who "won" in the 1998 mayoralty race and, therefore, was the legally elected
mayor of San Vicente. However, that disposition, it must be stressed, was without practical and legal use
and value, having been promulgated after the term of the contested office has expired. Petitioner Francis
contention that he was only a presumptive winner in the 1998 mayoralty derby as his proclamation was
under protest did not make him less than a duly elected mayor. His proclamation by the Municipal Board

of Canvassers of San Vicente as the duly elected mayor in the 1998 mayoralty election coupled by his
assumption of office and his continuous exercise of the functions thereof from start to finish of the term,
should legally be taken as service for a full term in contemplation of the three-term rule.
The absurdity and the deleterious effect of a contrary view is not hard to discern. Such contrary view
would mean that Alegre would under the three-term rule - be considered as having served a term by
virtue of a veritably meaningless electoral protest ruling, when another actually served such term pursuant
to a proclamation made in due course after an election.
The difference between the case at bench and Lonzanida is at once apparent. For one, in Lonzanida, the
result of the mayoralty election was declared a nullity for the stated reason of "failure of election", and, as
a consequence thereof, the proclamation of Lonzanida as mayor-elect was nullified, followed by an order
for him to vacate the office of mayor. For another, Lonzanida did not fully serve the 1995-1998 mayoral
term, there being an involuntary severance from office as a result of legal processes. In fine, there was an
effective interruption of the continuity of service.
On the other hand, the failure-of-election factor does not obtain in the present case. But more importantly,
here, there was actually no interruption or break in the continuity of Francis service respecting the 19982001 term. Unlike Lonzanida, Francis was never unseated during the term in question; he never ceased
discharging his duties and responsibilities as mayor of San Vicente, Camarines Norte for the entire period
covering the 1998-2001 term.
ATTY. VENANCIO Q. RIVERA III and ATTY. NORMANDICK DE GUZMAN, Petitioners,
vs.
COMELEC and MARINO "BOKING" MORALES, Respondents.
In the May 2004 Synchronized National and Local Elections, respondent Marino "Boking" Morales ran as
candidate for mayor of Mabalacat, Pampanga for the term commencing July 1, 2004 to June 30, 2007.
Prior thereto or on January 5, 2004, he filed his Certificate of Candidacy.
On January 10, 2004, Attys. Venancio Q. Rivera and Normandick De Guzman, petitioners, filed with the
Second Division of the Commission on Elections (COMELEC) a petition to cancel respondent Morales
Certificate of Candidacy on the ground that he was elected and had served three previous consecutive
terms as mayor of Mabalacat. They alleged that his candidacy violated Section 8, Article X of the
Constitution and Section 43 (b) of Republic Act (R.A.) No. 7160, also known as the Local Government
Code.
In his answer to the petition, respondent Morales admitted that he was elected mayor of Mabalacat for the
term commencing July 1, 1995 to June 30, 1998 (first term) and July 1, 2001 to June 30, 2004 (third
term), but he served the second term from July 1, 1998 to June 30, 2001 only as a "caretaker of the
office" or as a "de facto officer" because of the following reasons:
a. He was not validly elected for the second term 1998 to 2001 since his proclamation as
mayor was declared void by the Regional Trial Court (RTC), Branch 57, Angeles City in
its Decision dated April 2, 2001 in Election Protest Case (EPC) No. 98-131. The Decision
became final and executory on August 6, 2001; and
b. He was preventively suspended by the Ombudsman in an anti-graft case from January
16, 1999 to July 15, 1999.
It is undisputed that respondent Morales was elected to the position of mayor of Mabalacat for the
following consecutive terms:

a) July 1, 1995 to June 30, 1998

b) July 1, 1998 to June 30, 2001
c) July 1, 2001 to June 30, 2004
d) July 1, 2004 to June 30, 2007
THE PRINCIPAL ISSUE.
Respondent Morales argued and the Comelec held that the July 1, 2003 to June 30, 2007 term is not his
fourth because his second term, July 1, 1998 to June 30, 2001 to which he was elected and which he
served, may not be counted since his proclamation was declared void by the RTC, Branch 57 of Angeles
City.
Respondent Morales is wrong. This Court, through Mr. Justice Cancio C. Garcia, resolved the same issue
in Ong v. Alegre2 with identical facts.
It bears stressing that in Ong v. Alegre cited above, Francis Ong was elected and assumed the duties of
the mayor of San Vicente, Camarines Norte for three consecutive terms. But his proclamation as mayor in
the May 1998 election was declared void by the RTC of Daet, Camarines Norte in its Decision dated July
4, 2001. As ruled by this Court, his service for the term 1998 to 2001 is for the full term. Clearly, the threeterm limit rule applies to him. Indeed, there is no reason why this ruling should not also apply to
respondent Morales who is similarly situated.
Respondent Morales is now serving his fourth term. He has been mayor of Mabalacat continuously
without any break since July 1, 1995. In just over a month, by June 30, 2007, he will have been mayor of
Mabalacat for twelve (12) continuous years.
This is the very situation in the instant case. Respondent Morales maintains that he served his second
term (1998 to 2001) only as a "caretaker of the office" or as a "de facto officer." Section 8, Article X of the
Constitution is violated and its purpose defeated when an official serves in the same position for three
consecutive terms. Whether as "caretaker" or "de facto" officer, he exercises the powers and enjoys the
prerequisites of the office which enables him "to stay on indefinitely".
Respondent Morales should be promptly ousted from the position of mayor of Mabalacat.
Having found respondent Morales ineligible, his Certificate of Candidacy dated December 30, 2003
should be cancelled.
In the light of the foregoing, respondent Morales can not be considered a candidate in the May 2004
elections. Not being a candidate, the votes cast for him SHOULD NOT BE COUNTED and must be
considered stray votes.
Since respondent Morales is DISQUALIFIED from continuing to serve as mayor of Mabalacat, the instant
petition forquo warranto has become moot.
Going back to G.R. No. 167591, the question now is whether it is the vice-mayor or petitioner Dee who
shall serve for the remaining portion of the 2004 to 2007 term.
In Labo v. Comelec,8 this Court has ruled that a second place candidate cannot be proclaimed as a
substitute winner.

ROBERTO L. DIZON, Petitioner,

vs
COMMISSION ON ELECTIONS and MARINO P. MORALES, Respondents.
Roberto L. Dizon, hereinafter referred to as petitioner, is a resident and taxpayer of the Municipality of
Mabalacat, Pampanga. Marino P. Morales, hereinafter referred to as respondent, is the incumbent Mayor
of the Municipality of Mabalacat, Pampanga.
Petitioner alleges respondent was proclaimed as the municipal mayor of Mabalacat, Pampanga during
the 1995, 1998, 2001 and 2004 elections and has fully served the same. Respondent filed his Certificate
of Candidacy on March 28, 2007 again for the same position and same municipality.
Petitioner argues that respondent is no longer eligible and qualified to run for the same position for the
May 14, 2007 elections under Section 43 of the Local Government Code of 1991. Under the said
provision, no local elective official is allowed to serve for more than three (3) consecutive terms for the
same position.
Respondent, on the other hand, asserts that he is still eligible and qualified to run as Mayor of the
Municipality of Mabalacat, Pampanga because he was not elected for the said position in the 1998
elections. He avers that the Commission en banc in SPA Case No. A-04-058, entitled Atty. Venancio Q.
Rivera III and Normandick P. De Guzman vs. Mayor Marino P. Morales, affirmed the decision of the
Regional Trial Court of Angeles City declaring Anthony D. Dee as the duly elected Mayor of Mabalacat,
Pampanga in the 1998 elections.
Respondent alleges that his term should be reckoned from 2001 or when he was proclaimed as Mayor of
Mabalacat, Pampanga. Respondent further asserts that his election in 2004 is only for his second term.
Hence, the three term rule provided under the Local Government Code is not applicable to him.
The present case covers a situation wherein we have previously ruled that Morales had been elected to
the same office and had served three consecutive terms, and wherein we disqualified and removed
Morales during his fourth term. Dizon claims that Morales is currently serving his fifth term as mayor. Is
the 2007-2010 term really Morales fifth term?
In our decision promulgated on 9 May 2007, this Court unseated Morales during his fourth term. We
cancelled his Certificate of Candidacy dated 30 December 2003. This cancellation disqualified Morales
from being a candidate in the May 2004 elections. The votes cast for Morales were considered stray
votes. The dispositive portion in the Rivera case reads:
WHEREFORE, the petition in G.R. No. 167591 is GRANTED. Respondent Morales Certificate of
Candidacy dated December 30, 2003 is cancelled. In view of the vacancy in the Office of the Mayor of
Mabalacat, Pampanga, the vice-mayor elect of the said municipality in the May 10, 2004 Synchronized
National and Local Elections is hereby declared mayor and shall serve as such for the remaining duration
of the term July 1, 2004 to June 30, 2007. The petition in G.R. No. 170577 is DISMISSED for being moot.
For purposes of determining the resulting disqualification brought about by the three-term limit, it is not
enough that an individual has served three consecutive terms in an elective local office, he must also
have been elected to the same position for the same number of times. 6 There should be a concurrence of
two conditions for the application of the disqualification: (1) that the official concerned has been elected
for three consecutive terms in the same local government post and (2) that he has fully served three
consecutive terms.7l
In the Rivera case, we found that Morales was elected as mayor of Mabalacat for four consecutive terms:
1 July 1995 to 30 June 1998, 1 July 1998 to 30 June 2001, 1 July 2001 to 30 June 2004, and 1 July 2004
to 30 June 2007. We disqualified Morales from his candidacy in the May 2004 elections because of the

three-term limit. Although the trial court previously ruled that Morales proclamation for the 1998-2001
term was void, there was no interruption of the continuity of Morales service with respect to the 19982001 term because the trial courts ruling was promulgated only on 4 July 2001, or after the expiry of the
1998-2001 term.
Our ruling in the Rivera case served as Morales involuntary severance from office with respect to the
2004-2007 term. Involuntary severance from office for any length of time short of the full term provided by
law amounts to an interruption of continuity of service.8 Our decision in the Rivera case was promulgated
on 9 May 2007 and was effective immediately. The next day, Morales notified the vice mayors office of
our decision. The vice mayor assumed the office of the mayor from 17 May 2007 up to 30 June 2007. The
assumption by the vice mayor of the office of the mayor, no matter how short it may seem to Dizon,
interrupted Morales continuity of service. Thus, Morales did not hold office for the full term of 1 July 2004
to 30 June 2007.
2007-2010: Morales Fifth Term?
Dizon claims that the 2007-2010 term is Morales fifth term in office. Dizon asserts that even after receipt
of our decision on 10 May 2007, Morales "waited for the election to be held on 14 May 2007 to ensure his
victory for a fifth term."9
We concede that Morales occupied the position of mayor of Mabalacat for the following periods: 1 July
1995 to 30 June 1998, 1 July 1998 to 30 June 2001, 1 July 2001 to 30 June 2004, and 1 July 2004 to 16
May 2007. However, because of his disqualification, Morales was not the duly elected mayor for the 20042007 term. Neither did Morales hold the position of mayor of Mabalacat for the full term. Morales cannot
be deemed to have served the full term of 2004-2007 because he was ordered to vacate his post before
the expiration of the term. Morales occupancy of the position of mayor of Mabalacat from 1 July 2004 to
16 May 2007 cannot be counted as a term for purposes of computing the three-term limit. Indeed, the
period from 17 May 2007 to 30 June 2007 served as a gap for purposes of the three-term limit rule. Thus,
the present 1 July 2007 to 30 June 2010 term is effectively Morales first term for purposes of the threeterm limit rule.
Dizon alleges that Morales "was able to serve his fourth term as mayor through lengthy litigations. x x x In
other words, he was violating the rule on three-term limit with impunity by the sheer length of litigation and
profit from it even more by raising the technicalities arising therefrom." 10 To this, we quote our ruling
in Lonzanida v. COMELEC:
The respondents harp on the delay in resolving the election protest between petitioner and his then
opponent Alvez which took roughly about three years and resultantly extended the petitioners
incumbency in an office to which he was not lawfully elected. We note that such delay cannot be imputed
to the petitioner. There is no specific allegation nor proof that the delay was due to any political
maneuvering on his part to prolong his stay in office. Moreover, protestant Alvez, was not without legal
recourse to move for the early resolution of the election protest while it was pending before the regional
trial court or to file a motion for the execution of the regional trial courts decision declaring the position of
mayor vacant and ordering the vice-mayor to assume office while the appeal was pending with the
COMELEC. Such delay which is not here shown to have been intentionally sought by the petitioner to
prolong his stay in office cannot serve as basis to bar his right to be elected and to serve his chosen local
government post in the succeeding mayoral election. 11
NICASIO BOLOS, JR., Petitioner,
vs.
THE COMMISSION ON ELECTIONS and REY ANGELES CINCONIEGUE, Respondents.
For three consecutive terms, petitioner was elected to the position of Punong Barangay of Barangay
Biking, Dauis, Bohol in the Barangay Elections held in 1994, 1997 and 2002.

In May 2004, while sitting as the incumbent Punong Barangay of Barangay Biking, petitioner ran for
Municipal Councilor of Dauis, Bohol and won. He assumed office as Municipal Councilor on July 1, 2004,
leaving his post asPunong Barangay. He served the full term of the Sangguniang Bayan position, which
was until June 30, 2007.
Thereafter, petitioner filed his Certificate of Candidacy for Punong Barangay of Barangay Biking, Dauis,
Bohol in the October 29, 2007 Barangay and Sangguniang Kabataan Elections.
Respondent Rey Angeles Cinconiegue, the incumbent Punong Barangay and candidate for the same
office, filed before the COMELEC a petition for the disqualification of petitioner as candidate on the
ground that he had already served the three-term limit. Hence, petitioner is no longer allowed to run for
the same position in accordance with Section 8, Article X of the Constitution and Section 43 (b) of R.A.
No. 7160.
Cinconiegue contended that petitioners relinquishment of the position of Punong Barangay in July 2004
was voluntary on his part, as it could be presumed that it was his personal decision to run as municipal
councilor in the May 14, 2004 National and Local Elections. He added that petitioner knew that if he won
and assumed the position, there would be a voluntary renunciation of his post as Punong Barangay.
The main issue is whether or not there was voluntary renunciation of the Office of Punong Barangay by
petitioner when he assumed office as Municipal Councilor so that he is deemed to have fully served his
third term as Punong Barangay, warranting his disqualification from running for the same position in the
October 29, 2007 Barangay andSangguniang Kabataan Elections.
Petitioner contends that he is qualified to run for the position of Punong Barangay in the October 29,
2007 Barangay and Sangguniang Kabataan Elections since he did not serve continuously three
consecutive terms. He admits that in the 1994, 1997 and 2002 Barangay elections, he was elected
as Punong Barangay for three consecutive terms. Nonetheless, while serving his third term as Punong
Barangay, he ran as Municipal Councilor of Dauis, Bohol, and won. On July 1, 2004, he assumed office
and, consequently, left his post as Punong Barangay by operation of law. He averred that he served the
full term as member of the Sangguniang Bayan until June 30, 2007. On October 29, 2007, he filed his
Certificate of Candidacy for Punong Barangay and won. Hence, the COMELEC gravely abused its
discretion in disqualifying him as a candidate for Punong Barangay since he did not complete his third
term by operation of law.
The argument does not persuade.
In this case, it is undisputed that petitioner was elected as Punong Barangay for three consecutive terms,
satisfying the first condition for disqualification.
What is to be determined is whether petitioner is deemed to have voluntarily renounced his position
as Punong Barangay during his third term when he ran for and won as Sangguniang Bayan member and
assumed said office.
The Court agrees with the COMELEC that there was voluntary renunciation by petitioner of his position
as Punong Barangay.
The COMELEC correctly held:
It is our finding that Nicasio Bolos, Jr.s relinquishment of the office of Punong Barangay of Biking, Dauis,
Bohol, as a consequence of his assumption to office as Sangguniang Bayan member of Dauis, Bohol, on
July 1, 2004, is a voluntary renunciation.

As conceded even by him, respondent (petitioner herein) had already completed two consecutive terms of
office when he ran for a third term in the Barangay Elections of 2002. When he filed his certificate of
candidacy for the Office of Sangguniang Bayan of Dauis, Bohol, in the May 10, 2004 [elections], he was
not deemed resigned. Nonetheless, all the acts attending his pursuit of his election as municipal councilor
point out to an intent and readiness to give up his post as Punong Barangay once elected to the higher
elective office, for it was very unlikely that respondent had filed his Certificate of Candidacy for the
Sangguniang Bayan post, campaigned and exhorted the municipal electorate to vote for him as such and
then after being elected and proclaimed, return to his former position. He knew that his election as
municipal councilor would entail abandonment of the position he held, and he intended to forego of it.
Abandonment, like resignation, is voluntary.12
Indeed, petitioner was serving his third term as Punong Barangay when he ran for Sangguniang
Bayan member and, upon winning, assumed the position of Sangguniang Bayan member, thus,
voluntarily relinquishing his office asPunong Barangay which the Court deems as a voluntary renunciation
of said office.
Petitioner erroneously argues that when he assumed the position of Sangguniang Bayan member, he left
his post asPunong Barangay by operation of law; hence, he did not fully serve his third term as Punong
Barangay.
An interruption in the service of a term of office, by operation of law, is exemplified in Montebon v.
Commission on Elections.15 The respondent therein, Sesinando F. Potencioso, Jr., was elected and
served three consecutive terms as Municipal Councilor of Tuburan, Cebu in 1998-2001, 2001-2004, and
2004-2007. However, during his second term, he succeeded as Vice-Mayor of Tuburan due to the
retirement of the Vice-Mayor pursuant to Section 44 of R.A. No. 7160. 16 Potenciosos assumption of office
as Vice-Mayor was considered an involuntary severance from his office as Municipal Councilor, resulting
in an interruption in his second term of service.17 The Court held that it could not be deemed to have been
by reason of voluntary renunciation because it was by operation of law.18 Hence, Potencioso was qualified
to run as candidate for municipal councilor of the Municipality of Tuburan, Cebu in the May 14, 2007
Synchronized National and Local Elections.
Further, in Borja, Jr. v. Commission on Elections,19 respondent therein, Jose T. Capco, Jr., was elected as
Vice-Mayor of Pateros on January 18, 1988 for a term ending on June 30, 1992. On September 2, 1989,
Capco became Mayor, by operation of law, upon the death of the incumbent, Cesar Borja. Thereafter,
Capco was elected and served as Mayor for two more terms, from 1992 to 1998. On March 27, 1998,
Capco filed a Certificate of Candidacy for Mayor of Pateros in the May 11, 1998 election. Capcos
disqualification was sought on the ground that he would have already served as Mayor for three
consecutive terms by June 30, 1998; hence, he would be ineligible to serve for another term. The Court
declared that the term limit for elective local officials must be taken to refer to the right to be elected as
well as the right to serve the same elective position. 20 The Court held that Capco was qualified to run
again as mayor in the next election because he was not elected to the office of mayor in the first term but
simply found himself thrust into it by operation of law.21 Neither had he served the full term because he
only continued the service, interrupted by the death, of the deceased mayor.22 The vice-mayors
assumption of the mayorship in the event of the vacancy is more a matter of chance than of
design.23 Hence, his service in that office should not be counted in the application of any term limit. 24
SIMON B. ALDOVINO, JR., DANILO B. FALLER AND FERDINAND N. TALABONG, Petitioners,
vs.
COMMISSION ON ELECTIONS AND WILFREDO F. ASILO, Respondents.
Is the preventive suspension of an elected public official an interruption of his term of office for purposes
of the three-term limit rule under Section 8, Article X of the Constitution and Section 43(b) of Republic Act
No. 7160 (RA 7160, or the Local Government Code)?

The respondent Commission on Elections (COMELEC) ruled that preventive suspension is an effective
interruption because it renders the suspended public official unable to provide complete service for the full
term; thus, such term should not be counted for the purpose of the three-term limit rule.
The present petition1 seeks to annul and set aside this COMELEC ruling for having been issued with
grave abuse of discretion amounting to lack or excess of jurisdiction.
THE ANTECEDENTS
The respondent Wilfredo F. Asilo (Asilo) was elected councilor of Lucena City for three consecutive terms:
for the 1998-2001, 2001-2004, and 2004-2007 terms, respectively. In September 2005 or during his 20042007 term of office, the Sandiganbayan preventively suspended him for 90 days in relation with a criminal
case he then faced. This Court, however, subsequently lifted the Sandiganbayans suspension order;
hence, he resumed performing the functions of his office and finished his term.
In the 2007 election, Asilo filed his certificate of candidacy for the same position. The petitioners Simon B.
Aldovino, Jr., Danilo B. Faller, and Ferdinand N. Talabong (the petitioners) sought to deny due course to
Asilos certificate of candidacy or to cancel it on the ground that he had been elected and had served for
three terms; his candidacy for a fourth term therefore violated the three-term limit rule under Section 8,
Article X of the Constitution and Section 43(b) of RA 7160.
The COMELECs Second Division ruled against the petitioners and in Asilos favour in its Resolution of
November 28, 2007. It reasoned out that the three-term limit rule did not apply, as Asilo failed to render
complete service for the 2004-2007 term because of the suspension the Sandiganbayan had ordered.
Thus presented, the case raises the direct issue of whether Asilos preventive suspension constituted an
interruption that allowed him to run for a 4th term.
THE COURTS RULING
We find the petition meritorious.
General Considerations
The present case is not the first before this Court on the three-term limit provision of the Constitution, but
is the first on the effect of preventive suspension on the continuity of an elective officials term. To be sure,
preventive suspension, as an interruption in the term of an elective public official, has been mentioned as
an example in Borja v. Commission on Elections.2 Doctrinally, however, Borja is not a controlling ruling; it
did not deal with preventive suspension, but with the application of the three-term rule on the term that an
elective official acquired by succession.
Ong and Rivera are important rulings for purposes of the three-term limitation because of what they
directly imply. Although the election requisite was not actually present, the Court still gave full effect to the
three-term limitation because of the constitutional intent to strictly limit elective officials to service for three
terms. By so ruling, the Court signalled how zealously it guards the three-term limit rule. Effectively, these
cases teach us to strictly interpret the term limitation rule in favor of limitation rather than its exception.
From all the above, we conclude that the "interruption" of a term exempting an elective official from the
three-term limit rule is one that involves no less than the involuntary loss of title to office. The elective
official must have involuntarily left his office for a length of time, however short, for an effective
interruption to occur. This has to be the case if the thrust of Section 8, Article X and its strict intent are to
be faithfully served, i.e., to limit an elective officials continuous stay in office to no more than three

consecutive terms, using "voluntary renunciation" as an example and standard of what does not
constitute an interruption.
Thus, based on this standard, loss of office by operation of law, being involuntary, is an effective
interruption of service within a term, as we held in Montebon. On the other hand, temporary inability or
disqualification to exercise the functions of an elective post, even if involuntary, should not be considered
an effective interruption of a term because it does not involve the loss of title to office or at least an
effective break from holding office; the office holder, while retaining title, is simply barred from exercising
the functions of his office for a reason provided by law.
An interruption occurs when the term is broken because the office holder lost the right to hold on to his
office, and cannot be equated with the failure to render service. The latter occurs during an office holders
term when he retains title to the office but cannot exercise his functions for reasons established by law. Of
course, the term "failure to serve" cannot be used once the right to office is lost; without the right to hold
office or to serve, then no service can be rendered so that none is really lost.
To put it differently although at the risk of repetition, Section 8, Article X both by structure and substance
fixes an elective officials term of office and limits his stay in office to three consecutive terms as an
inflexible rule that is stressed, no less, by citing voluntary renunciation as an example of a circumvention.
The provision should be read in the context of interruption of term, not in the context of interrupting the full
continuity of the exercise of the powers of the elective position. The "voluntary renunciation" it speaks of
refers only to the elective officials voluntary relinquishment of office and loss of title to this office. It does
not speak of the temporary "cessation of the exercise of power or authority" that may occur for various
reasons, with preventive suspension being only one of them. To quoteLatasa v. Comelec:16
Indeed, [T]he law contemplates a rest period during which the local elective official steps down from office
and ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a particular
local government unit. [Emphasis supplied].
Preventive Suspension and the Three-Term Limit Rule
a. Nature of Preventive Suspension
Preventive suspension whether under the Local Government Code, 17 the Anti-Graft and Corrupt
Practices Act,18 or the Ombudsman Act19 is an interim remedial measure to address the situation of an
official who have been charged administratively or criminally, where the evidence preliminarily indicates
the likelihood of or potential for eventual guilt or liability.
Preventive suspension is imposed under the Local Government Code "when the evidence of guilt is
strong and given the gravity of the offense, there is a possibility that the continuance in office of the
respondent could influence the witnesses or pose a threat to the safety and integrity of the records and
other evidence." Under the Anti-Graft and Corrupt Practices Act, it is imposed after a valid information
(that requires a finding of probable cause) has been filed in court, while under the Ombudsman Act, it is
imposed when, in the judgment of the Ombudsman, the evidence of guilt is strong; and (a) the charge
involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; or (b) the
charges would warrant removal from the service; or (c) the respondents continued stay in office may
prejudice the case filed against him.
Notably in all cases of preventive suspension, the suspended official is barred from performing the
functions of his office and does not receive salary in the meanwhile, but does not vacate and lose title to
his office; loss of office is a consequence that only results upon an eventual finding of guilt or liability.
Term limitation and preventive suspension are two vastly different aspects of an elective officials service
in office and they do not overlap. As already mentioned above, preventive suspension involves protection

of the service and of the people being served, and prevents the office holder from temporarily exercising
the power of his office. Term limitation, on the other hand, is triggered after an elective official has served
his three terms in office without any break. Its companion concept interruption of a term on the other
hand, requires loss of title to office. If preventive suspension and term limitation or interruption have any
commonality at all, this common point may be with respect to the discontinuity of service that may occur
in both. But even on this point, they merely run parallel to each other and never intersect; preventive
suspension, by its nature, is a temporary incapacity to render service during an unbroken term; in the
context of term limitation, interruption of service occurs after there has been a break in the term.
b. Preventive Suspension and the Intent of the Three-Term Limit Rule
Strict adherence to the intent of the three-term limit rule demands that preventive suspension should not
be considered an interruption that allows an elective officials stay in office beyond three terms. A
preventive suspension cannot simply be a term interruption because the suspended official continues to
stay in office although he is barred from exercising the functions and prerogatives of the office within the
suspension period. The best indicator of the suspended officials continuity in office is the absence of a
permanent replacement and the lack of the authority to appoint one since no vacancy exists.
To allow a preventively suspended elective official to run for a fourth and prohibited term is to close our
eyes to this reality and to allow a constitutional violation through sophistry by equating the temporary
inability to discharge the functions of office with the interruption of term that the constitutional provision
contemplates. To be sure, many reasons exist, voluntary or involuntary some of them personal and
some of them by operation of law that may temporarily prevent an elective office holder from exercising
the functions of his office in the way that preventive suspension does. A serious extended illness, inability
through force majeure, or the enforcement of a suspension as a penalty, to cite some involuntary
examples, may prevent an office holder from exercising the functions of his office for a time without
forfeiting title to office. Preventive suspension is no different because it disrupts actual delivery of service
for a time within a term. Adopting such interruption of actual service as the standard to determine effective
interruption of term under the three-term rule raises at least the possibility of confusion in implementing
this rule, given the many modes and occasions when actual service may be interrupted in the course of
serving a term of office. The standard may reduce the enforcement of the three-term limit rule to a caseto-case and possibly see-sawing determination of what an effective interruption is.
c. Preventive Suspension and Voluntary Renunciation
Preventive suspension, because it is imposed by operation of law, does not involve a voluntary act on the
part of the suspended official, except in the indirect sense that he may have voluntarily committed the act
that became the basis of the charge against him. From this perspective, preventive suspension does not
have the element of voluntariness that voluntary renunciation embodies. Neither does it contain the
element of renunciation or loss of title to office as it merely involves the temporary incapacity to perform
the service that an elective office demands. Thus viewed, preventive suspension is by its very nature
the exact opposite of voluntary renunciation; it is involuntary and temporary, and involves only the actual
delivery of service, not the title to the office. The easy conclusion therefore is that they are, by nature,
different and non-comparable.
But beyond the obvious comparison of their respective natures is the more important consideration of how
they affect the three-term limit rule.
Voluntary renunciation, while involving loss of office and the total incapacity to render service, is
disallowed by the Constitution as an effective interruption of a term. It is therefore not allowed as a mode
of circumventing the three-term limit rule.
Preventive suspension, by its nature, does not involve an effective interruption of a term and should
therefore not be a reason to avoid the three-term limitation. It can pose as a threat, however, if we shall

disregard its nature and consider it an effective interruption of a term. Let it be noted that a preventive
suspension is easier to undertake than voluntary renunciation, as it does not require relinquishment or
loss of office even for the briefest time. It merely requires an easily fabricated administrative charge that
can be dismissed soon after a preventive suspension has been imposed. In this sense, recognizing
preventive suspension as an effective interruption of a term can serve as a circumvention more potent
than the voluntary renunciation that the Constitution expressly disallows as an interruption.
Conclusion
To recapitulate, Asilos 2004-2007 term was not interrupted by the Sandiganbayan-imposed preventive
suspension in 2005, as preventive suspension does not interrupt an elective officials term. Thus, the
COMELEC refused to apply the legal command of Section 8, Article X of the Constitution when it granted
due course to Asilos certificate of candidacy for a prohibited fourth term. By so refusing, the COMELEC
effectively committed grave abuse of discretion amounting to lack or excess of jurisdiction; its action was
a refusal to perform a positive duty required by no less than the Constitution and was one undertaken
outside the contemplation of law.21
WHEREFORE, premises considered, we GRANT the petition and accordingly NULLIFY the assailed
COMELEC rulings. The private respondent Wilfredo F. Asilo is declared DISQUALIFIED to run, and
perforce to serve, as Councilor of Lucena City for a prohibited fourth term. Costs against private
respondent Asilo.
CONSTANCIO F. MENDOZA, Petitioner,
vs.
SENEN C. FAMILARA and COMMISSION ON ELECTIONS, Respondents.
This petition raises a far from novel issue, i.e., the constitutionality of Section 2 1 of Republic Act No. 9164
(entitled "An Act Providing for Synchronized Barangay and Sangguniang Kabataan Elections, amending
RA No. 7160, as amended, otherwise known as the Local Government Code of 1991"). As other
barangay officials had done in previous cases,2 petitioner Constancio F. Mendoza (Mendoza) likewise
questions the retroactive application of the three-consecutive term limit imposed on barangay elective
officials beginning from the 1994 barangay elections.
Mendoza was a candidate for Barangay Captain of Barangay Balatasan, Oriental Mindoro in the 29
October 2007 Barangay Elections. As required by law, Mendoza filed a certificate of candidacy. Prior
thereto, Mendoza had been elected as Barangay Captain of Barangay Balatasan for three (3) consecutive
terms, on 9 May 1994, 12 May 1997 and 15 July 2002.
On 26 October 2007, respondent Senen C. Familara (Familara) filed a Petition to Disqualify Mendoza
averring that Mendoza, under Section 2 of RA No. 9164, is ineligible to run again for Barangay Captain of
Barangay Balatasan, having been elected and having served, in the same position for three (3)
consecutive terms immediately prior to the 2007 Barangay Elections.
The present petition is premature. It should be filed within ten (10) days from proclamation of election
results.
Further, [Senen] Familara is not a proper party to file the petition. It must be filed by a candidate who has
duly filed a certificate of candidacy and has been voted for the same office.
Finally, the petition was filed before the wrong forum. It must be filed before the Municipal Trial Court. The
COMELEC has the exclusive appellate jurisdiction over all contests x x x involving elective barangay
officials decided by trial courts of limited jurisdiction.

Unperturbed, Mendoza filed the instant petition alleging grave abuse of discretion in the 23 December
2009 Resolution of the COMELEC En Banc. Mendoza insists that the disqualification case should have
been dismissed, or, at the least, consolidated with the quo warranto case on appeal before the
COMELEC Second Division because the latter case stems from a judicial proceeding which "followed
strictly the requirements of law and the rules." Mendoza then blithely puts in issue the constitutionality of
the retroactive application to the 1994 Barangay Elections of the three-consecutive term limit rule. For
good measure, Mendoza asserts denial of due process as would invalidate the disqualification
proceedings against him and his resulting disqualification from the race for Barangay Captain of
Balatasan.
The jettisoning of the petition is inevitable: the holding of the October 2010 Barangay Elections makes the
issues posed by petitioner moot and academic.
Our decision in COMELEC v. Cruz18 settles, once and for all, the constitutionality of the three-consecutive
term limit rule reckoned from the 1994 Barangay Elections. We unequivocally declared, thus:
The Retroactive Application Issue
xxx
Our first point of disagreement with the respondents and with the RTC is on their position that a
retroactive application of the term limitation was made under RA No. 9164. Our own reading shows that
no retroactive application was made because the three-term limit has been there all along as early as the
second barangay law (RA No. 6679) after the 1987 Constitution took effect; it was continued under the
[Local Government Code] and can still be found in the current law. We find this obvious from a reading of
the historical development of the law.
The first law that provided a term limitation for barangay officials was RA No. 6653 (1988); it imposed a
two-consecutive term limit. After only six months, Congress, under RA No. 6679 (1988), changed the twoterm limit by providing for a three-consecutive term limit. This consistent imposition of the term limit gives
no hint of any equivocation in the congressional intent to provide a term limitation. Thereafter, RA No.
7160 - the LGC - followed, bringing with it the issue of whether it provided, as originally worded, for a
three-term limit for barangay officials. We differ with the RTC analysis of this issue.
Section 43 is a provision under Title II of the LGC on Elective Officials. Title II is divided into several
chapters dealing with a wide range of subject matters, all relating to local elective officials, as follows: a.
Qualifications and Election (Chapter I); b. Vacancies and Succession (Chapter II); c. Disciplinary Actions
(Chapter IV) and d. Recall (Chapter V). Title II likewise contains a chapter on Local Legislation (Chapter
III).
These Title II provisions are intended to apply to all local elective officials, unless the contrary is clearly
provided. A contrary application is provided with respect to the length of the term of office under Section
43(a); while it applies to all local elective officials, it does not apply to barangay officials whose length of
term is specifically provided by Section 43(c). In contrast to this clear case of an exception to a general
rule, the three-term limit under Section 43(b) does not contain any exception; it applies to all local elective
officials who must perforce include barangay officials.1wphi1
An alternative perspective is to view [Section] 43(a), (b) and (c) separately from one another as
independently standing and self-contained provisions, except to the extent that they expressly relate to
one another. Thus, [Section] 43(a) relates to the term of local elective officials, except barangay officials
whose term of office is separately provided under Sec. 43(c). [Section] 43(b), by its express terms, relates
to all local elective officials without any exception. Thus, the term limitation applies to all local elective
officials without any exclusion or qualification.

Either perspective, both of which speak of the same resulting interpretation, is the correct legal import of
Section 43 in the context in which it is found in Title II of the LGC.
xxx
All these inevitably lead to the conclusion that the challenged proviso has been there all along and does
not simply retroact the application of the three-term limit to the barangay elections of 1994. Congress
merely integrated the past statutory changes into a seamless whole by coming up with the challenged
proviso.
With this conclusion, the respondents constitutional challenge to the provisobased on retroactivity
must fail.19
RA 9164, Section 5. Hold Over. All incumbent barangay officials and sangguniang kabataan officials
shall remain in office unless sooner removed or suspended for cause until their successors shall have
been elected and qualified. The provisions of the Omnibus Election Code relative to the failure of
elections and special elections are hereby reiterated in this Act.
POLALA SAMBARANI, et al, petitioners,
vs.
COMMISSION ON ELECTIONS and EO ESMAEL MAULAY, respondents.
In the 15 July 2002 Synchronized Barangay and Sangguniang Kabataan Elections ("elections"), Polala
Sambarani ("Sambarani"), Jamal Miraato ("Miraato"), Samera Abubacar ("Abubacar"), Macabigung
Mascara ("Mascara") and Aliasgar Dayondong ("Dayondong") ran for re-election as punong barangay in
their respective barangays, namely: Occidental Linuk, Pindolonan Moriatao Sarip, Talub, New
Lumbacaingud, and Tatayawan South ("five barangays"), all in Tamparan, Lanao del Sur.
Due to a failure of elections in eleven barangays in Lanao del Sur, the COMELEC issued Resolution No.
5479 setting special elections on 13 August 2002 in the affected barangays in Lanao del Sur including the
five barangays. On 14 August 2002, Acting Election Officer Esmael Maulay ("EO Maulay") issued a
certification that there were no special elections held on 13 August 2002.
Consequently, Sambarani, Miraato, Abubacar, Mascara and Dayondong ("joint-petitioners") filed a Joint
Petition seeking to declare a failure of elections in the five barangays and the holding of another special
election. The Joint Petition attributed the failure of the special elections to EO Maulays non-compliance
with COMELEC Commissioner Mehol K. Sadains ("Commissioner Sadain") directive. Commissioner
Sadain had directed EO Maulay to use the Autonomous Region of Muslim Mindanao ("ARMM") 2001
computerized Voters List and the Voters Registration Records of the Provincial Election Officer during
the December 2001 registration of new voters.
The COMELEC agreed with petitioners that the special elections held on 13 August 2002 in the five
barangays failed. The COMELEC, however, ruled that to hold another special election in these barangays
as prayed for by petitioners is untenable. The COMELEC explained that it is no longer in a position to call
for another special election since Section 6 of the Omnibus Election Code provides that "special elections
shall be held on a date reasonably close to the date of the election not held, but not later than thirty days
after cessation of the cause of such postponement." The COMELEC noted that more than thirty days had
elapsed since the failed election.
The COMELEC also pointed out that to hold another special election in these barangays will not only be
tedious and cumbersome, but a waste of its precious resources. The COMELEC left to the Department of
Interior and Local Government ("DILG") the process of appointing the Barangay Captains and Barangay
Kagawads as well as the Sangguniang Kabataan ("SK") Chairmen and SK Kagawads in these barangays
"in accordance with the Local Government Code of 1991 and other related laws on the matter." 5

Petitioners contend that the COMELEC acted with grave abuse of discretion amounting to lack of
jurisdiction in
1. Denying the prayer to call for another special election in barangays Occidental Linuk,
Pindolonan Moriatao Sarip, Talub, New Lumbacaingud ("subject barangays");
2. Directing the DILG to proceed with the appointment of the barangay captains,
barangay kagawads, SK chairmen and SK kagawads in the subject barangays;
3. Not declaring the petitioners as the rightful incumbent barangay chairmen of their office
until their successors have been elected and qualified.
In this case, the cause of postponement after the second failure of elections was COMELECs refusal to
hold a special election because of (1) its erroneous interpretation of the law, and (2) its perceived
logistical, operational and financial problems. We rule that COMELECs reasons for refusing to hold
another special election are void.
Second and Third Issues: Whether the DILG may Appoint the Barangay and SK Officials
Petitioners contend that the COMELEC gravely abused its discretion in directing the DILG to proceed with
the appointment of Barangay Captains and Barangay Kagawads as well as SK chairmen and SK
Kagawads in the four barangays. Petitioners argue that as the incumbent elective punong barangays in
the four barangays,18 they should remain in office in a hold- over capacity until their successors have been
elected and qualified. Section 5 of Republic Act No. 9164 ("RA 9164") 19 provides:
Sec. 5. Hold Over. All incumbent barangay officials and sangguniang kabataan officials
shall remain in office unless sooner removed or suspended for cause until their
successors shall have been elected and qualified. The provisions of the Omnibus
Election Code relative to failure of elections and special elections are hereby reiterated in
this Act.
RA 9164 is now the law that fixes the date of barangay and SK elections, prescribes the term of office of
barangay and SK officials, and provides for the qualifications of candidates and voters for the SK
elections.
As the law now stands, the language of Section 5 of RA 9164 is clear. It is the duty of this Court to apply
the plain meaning of the language of Section 5. Since there was a failure of elections in the 15 July 2002
regular elections and in the 13 August 2002 special elections, petitioners can legally remain in office as
barangay chairmen of their respective barangays in a hold-over capacity. They shall continue to discharge
their powers and duties as punong barangay, and enjoy the rights and privileges pertaining to the office.
True, Section 43(c) of the Local Government Code limits the term of elective barangay officials to three
years. However, Section 5 of RA 9164 explicitly provides that incumbent barangay officials may continue
in office in a hold over capacity until their successors are elected and qualified.
Section 5 of RA 9164 reiterates Section 4 of RA 6679 which provides that "[A]ll incumbent barangay
officials xxx shall remain in office unless sooner removed or suspended for cause xxx until their
successors shall have been elected and qualified." Section 8 of the same RA 6679 also states that
incumbent elective barangay officials running for the same office "shall continue to hold office until their
successors shall have been elected and qualified."
The application of the hold-over principle preserves continuity in the transaction of official business and
prevents a hiatus in government pending the assumption of a successor into office. 20 As held in Topacio
Nueno v. Angeles,21cases of extreme necessity justify the application of the hold-over principle.

Section 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor, and ViceMayor. - If a permanent vacancy occurs in the office of the governor or mayor, the vice-governor or vicemayor concerned shall become the governor or mayor. If a permanent vacancy occurs in the offices of the
governor, vice-governor, mayor, or vice-mayor, the highest ranking sanggunian member or, in case of his
permanent inability, the second highest ranking sanggunian member, shall become the governor, vicegovernor, mayor or vice-mayor, as the case may be. Subsequent vacancies in the said office shall be
filled automatically by the other sanggunian members according to their ranking as defined herein.
(b) If a permanent vacancy occurs in the office of the punong barangay, the highest
ranking sanggunian barangay member or, in case of his permanent inability, the second
highest ranking sanggunian member, shall become the punong barangay.
(c) A tie between or among the highest ranking sanggunian members shall be resolved
by the drawing of lots.
(d) The successors as defined herein shall serve only the unexpired terms of their
predecessors.
For purposes of this Chapter, a permanent vacancy arises when an elective local official
fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from
office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the
functions of his office.
For purposes of succession as provided in the Chapter, ranking in the sanggunian shall be determined on
the basis of the proportion of votes obtained by each winning candidate to the total number of registered
voters in each district in the immediately preceding local election.
Section 45. Permanent Vacancies in the Sanggunian. (a) Permanent vacancies in the sanggunian where automatic succession provided above
do not apply shall be filled by appointment in the following manner:
(1) The President, through the Executive Secretary, in the case of the
sangguniang panlalawigan and the sangguniang panlungsod of highly urbanized
cities and independent component cities;
(2) The governor, in the case of the sangguniang panlungsod of component cities
and the sangguniang bayan;
(3) The city or municipal mayor, in the case of sangguniang barangay, upon
recommendation of the sangguniang barangay concerned.
(b) Except for the sangguniang barangay, only the nominee of the political party under
which the sanggunian member concerned had been elected and whose elevation to the
position next higher in rank created the last vacancy in the sanggunian shall be appointed
in the manner hereinabove provided. The appointee shall come from the same political
party as that of the sanggunian member who caused the vacancy and shall serve the
unexpired term of the vacant office. In the appointment herein mentioned, a nomination
and a certificate of membership of the appointee from the highest official of the political
party concerned are conditions sine qua non, and any appointment without such
nomination and certification shall be null and void ab initio and shall be a ground for
administrative action against the official responsible therefore.

(c) In case or permanent vacancy is caused by a sanggunian member who does not
belong to any political party, the local chief executive shall, upon recommendation of the
sanggunian concerned, appoint a qualified person to fill the vacancy.
(d) In case of vacancy in the representation of the youth and the barangay in the
sanggunian, said vacancy shall be filled automatically by the official next in rank of the
organization concerned.
JUAN D. VICTORIA, petitioner,
vs.
THE COMMISSION ON ELECTIONS and JESUS JAMES CALISIN, respondents.
The issue in the case at bench is the ranking of the members of the Sangguniang Panlalawigan of the
Province of Albay for purposes of succession.
In the May 11, 1992 Elections, the following candidates from the first, second and third districts of the
Province of Albay were elected and proclaimed as members of the Sangguniang Panlalawigan, to wit:

FIRST DISTRICT
Name No. of Votes Garnered
1. Jesus James Calisin 28,335 votes
2. Vicente Go, Sr. 17,937 votes
3. Clenio Cabredo 16,705 votes
SECOND DISTRICT
1. Juan D. Victoria 32,918 votes
2. Jesus Marcellana 26,030 votes
3. Lorenzo Reyeg 23,887 votes
THIRD DISTRICT
1. Ramon Fernandez, Jr. 19,315 votes
2. Masikap Fontanilla 19,241 votes
3. Arturo Osia 17,778 votes
4. Nemesio Baclao 17,545 votes

(Rollo, pp. 27-28)

Due to the suspension of Governor Romeo Salalima of the Province of Albay, Vice-Governor Danilo
Azana automatically assumed the powers and functions of the governor, leaving vacant his post as vicegovernor. Under the law, Azana's position as vice-governor should be occupied by the highest ranking
Sangguniang member, a post being contested by petitioner and private respondent.
In answer to private respondent's petition for his declaration as senior Sanggunian member for the
Province of Albay, the COMELEC issued a resolution dated January 22, 1993, certifying him as first in the
order of ranking with petitioner herein as second ranking member. The COMELEC based its certification

on the number of votes obtained by the Sanggunian members in relation to the number of registered
voters in the district.
Thus, on February 15, 1993, Secretary Rafael M. Alunan III of the Department of Interior and Local
Government designated private respondent as acting Vice-Governor of the province.
Petitioner filed a motion for reconsideration of the COMELEC resolution which was denied on February
22, 1993.
Hence, this petition.
Petitioner claims that the ranking of the Sanggunian members should not only be based on the number of
votes obtained in relation to the total number of registered voters, but also on the number of voters in the
district who actually voted therein. He further argues that a district may have a large number of registered
voters but only a few actually voted, in which case the winning candidate would register a low percentage
of the number of votes obtained. Conversely, a district may have a smaller number of registered voters
but may have a big voters' turn-out, in which case the winning candidate would get a higher percentage of
the votes. Applying his formula, petitioner would come out to be the highest ranking Sanggunian member.
Petitioner gives the following illustration:
1. for private respondent.
107,216 (actually voted)
x 28,335 (votes obtained) = 23.40%
129,793 (registered voters)
(Rollo, pp. 24, 25 and 30)
2. for petitioner
121,423 (actually voted)
x 32,918 (votes obtained) = 25.84%
154,665 (registered voters)
(Rollo, p. 9).
We are not persuaded.
The Local Government provides:
Sec. 44. Permanent Vacancies in the Office of the Governor, Vice-Governor,
Mayor, and Vice-Mayor. (a) If a permanent vacancy occurs in the office of the
governor or mayor, the vice-governor or
vice-mayor concerned shall become governor or mayor. If a permanent vacancy
occurs in the offices of the governor, vice-governor, mayor, or vice-mayor, the
highest ranking Sanggunian member or, in case of his permanent inability, the
second highest ranking Sanggunian member, shall become the governor, vicegovernor, mayor or vice-mayor, as the case may be. Subsequent vacancies in
the said office shall be filled automatically by the other Sanggunian members
according to their ranking as defined herein.
xxx xxx xxx

For purposes of succession as provided in this Chapter, ranking in the

Sanggunian shall be determined on the basis of the proportion of votes obtained
by each winning candidate to the total number of registered voters in each
district in the immediately preceding local election. (Emphasis ours)
The law is clear that the ranking in the Sanggunian shall be determined on the basis of the proportion of
the votes obtained by each winning candidate of the total number of registered voters who actually voted.
In such a case, the Court has no recourse but to merely apply the law. The courts may not speculate as to
the probable intent of the legislature apart from the words (Pascual v. Pascual-Bautista, 207 SCRA 561
[1992]).
Petitioner's contention is therefore untenable considering the clear mandate of the law, which leaves no
room for other interpretation but it must very well be addressed to the legislative branch and not to this
Court which has no power to change the law.
KAISER B. RECABO, JR., petitioner,
vs.
THE COMMISSION ON ELECTIONS and FRANCISCO R. REYES, JR., respondents.
It appears that on March 27, 1998, petitioner Francisco R. Reyes, Jr., filed his
certificate of candidacy (Annex A, Petition) as the official candidate (for vicemayor of the municipality of Mainit, Surigao Del Norte) of the political party
LAKAS NUCD-UMDP. His nomination by said political party is evidence by the
certificate of nomination and acceptance dated March 27, 1998 signed by Fidel
V. Ramos and Jose de Venecia, National Chairman and Secretary General,
respectively, of said political party. This certificate of nomination and acceptance
is petitioner's Annex A-1.
However, on April 2, 1998, another person, respondent Kaiser B. Recabo, Jr.,
claiming to be the official candidate of LAKAS NUCD-UMDP as vice-mayor of the
municipality of Mainit, Surigao del Norte also filed his certificate of candidacy
(Annex E, Petition). Petitioner submitted to this Commission a copy of the
certificate of nomination and acceptance in favor of Kaiser B. Recabo, Jr., dated
March 30, 1998 (Annex F) signed only by one representative of LAKAS NUCDUMDP. Francisco T. Matugas. The space of the other representative (Robert Z.
Barbers) is blank.
Petitioner in par. II-2 of the petition alleges:
II-2. The respondent KAISER B. RECABO, JR., is a
SUBSTITUTE candidate for the office of VICE-MAYOR of the
Municipality of Mainit, Surigao del Norte. He filed his Certificate
of Candidacy on April 02, 1998. He claims to be a substitute of
MRS. CANDELARIA B. RECABO who filed her Certificate of
Candidacy for the position of VICE-MAYOR of Mainit, Surigao
del Norte on March 25, 1998.

Petitioner submits the theory that since the certificate of nomination and
acceptance (Annex C) in favor of Candelaria B. Recabo is not signed by Robert
Barbers, there is no valid nomination by LAKAS NUCD-UMDP in favor of
Candelaria Recabo. Therefore, Candelaria B. Recabo not having been validly
nominated, should be deemed an independent candidate only. And since

Candelaria B. Recabo is an independent candidate, she cannot be validly

substituted because under Sec. 11 of Comelec Res. No. 2977 promulgated on
January 15, 1998, "no substitution shall be allowed for an independent
candidate."
On the other hand, respondent argues that the certificate of nomination and acceptance signed only by
representative Matugas (and without the joint signature of representative Barbers) substantially complied
with the party requirements and are, therefore, valid as far as the party is concerned. Respondent
maintains that his nomination is valid. Respondent further argues that the Commission has no jurisdiction
to rule on who between petitioner and respondent has a valid certificate of candidacy.
COMELEC Resolution No. 2977 which prescribed the rules and regulations governing the filing of
certificates of candidacy in connection with the May 11, 1998 election provides under Section 5 thereof:
Sec. 5. Certificate of nomination of official candidates by political party. . . .
The certificate of nomination by registered political parties, organizations or
coalitions of their official candidates shall be filed with the certificates of
candidacy not lather than the last day for filing of certificates of candidacy as
specified in Section 4 hereof, duly signed and attested under oath by the party
president, chairman, secretary-general or any other party officer duly authorized
in writing to do so.
xxx xxx xxx
Pursuant to said resolution, the political party of LAKAS NUCD-UMDP issued an "Authorization
designating two (2) Party officers to nominate, sign, attest under oath and issue the Official Certificates of
Nomination, namely, Francisco T. Matugas and Robert Ace S. Barbers. Consistent with the foregoing, the
certificate of nomination and acceptance, as pointed out by the respondent Commission, requires the joint
signing of the two party officers. The fact that only Francisco T. Matugas signed the certificate of
nomination of petitioner Recabo, Jr. leaves the same open to question. On the other hand, the certificate
of nomination of private respondent Reyes, Jr. was signed by no less than Fidel V. Ramos and Jose De
Venecia, Jr. as the National Chairman and Secretary General, respectively of the LAKAS NUCD-UMDP
party. By and large, the best authority to interpret a rule is the source itself of the rule, in this case the
COMELEC. 12
Moreover, the chronology of events would still call for the cancellation of petitioner's certificate of
candidacy to curb the evil that the respondent Commission sought to abate pursuant to its mandate to
hold free, orderly, honest, peaceful and credible elections. 13 As the respondent Commission stated, "to
allow respondent to run under the circumstances adverted to herein would put the election process in
mockery and disrepute for we would in effect be allowing an anomalous situation where a single political
party may field-in multiple candidates for a single position."
It will be recalled that the mother of herein petitioner filed her certificate of candidacy on March 25, 1998
and later withdrew the same on March 31, 1998. In the meantime, private respondent Reyes, Jr. filed his
certificate of candidacy on March 27, 1998. Thereafter, herein petitioner Recabo, Jr. filed his certificate of
candidacy of April 2, 1998, in substitution of his mother who had withdrawn earlier.
Assuming all three candidates were fielded-in by the same political party, at the time petitioner Recabo,
Jr. filed his certificate of candidacy there was no more void to fill in as respondent Reyes, Jr. has already
filed his certificate of candidacy as official candidate of LAKAS NUCD-UMDP. Verily, there was no more
vacancy to be substituted for. Disunity and discord amongst members of a political party should not be
allowed to create a mockery of our electoral process, which envisions one candidate from a political party
for each position.

This issue was not raised in this petition, nevertheless, we deem it necessary to clarify respondent
Commissioner's declaration that petitioner's mother is an independent candidate on account of the
invalidity of her certificate of nomination and acceptance to forestall any confusion that may arise on
account of the said declaration. For the same reason, that his certificate of nomination was invalid
because it was signed only by one authorized party officer, may petitioner be likewise deemed an
independent candidate and pave the way for his candidacy in the said elections? The answer still be in
the negative. Were we to treat him as an independent candidate, his certificate of candidacy would still be
cancelled and denied due course on the ground that it was filed out of time. It is well-settled that a
certified filed beyond the deadline is not valid. 14
Petitioner filed his certificate of candidacy on April 2, 1998, well within the prescriptive period for filing a
substitute certificate of candidacy, but way beyond the period for filing an independent certificate of
candidacy. Section 4 of COMELEC Resolution No. 2977 requires that "the certificate of candidacy for
municipal positions in areas other than the ARMM should be filed starting January 11, 1998 to midnight of
March 27, 1998. 15 On the other hand, Section 11 thereof provides that "the substitute candidate
nominated by the political party concerned may file his certificate of candidacy as herein provided for the
office affected not lather than mid-day of the day of the election. 16
In the sum, we find that the respondent Commission did not act without jurisdiction or with grave abuse of
discretion in cancelling and denying due course to petitioner Recabo, Jr.'s certificate of candidacy.
GOVERNOR RODOLFO C. FARIAS and AL NACINO, petitioners,
vs.
MAYOR ANGELO N. BARBA, et al, respondents.
Carlito B. Domingo was a member of the Sangguniang Bayan of San Nicolas, Ilocos Norte. On March 24,
1994, he resigned after going without leave to the United States.
To fill the vacancy created by his resignation, the mayor, respondent Angelo M. Barba, recommended to
the Governor of the province, respondent Rodolfo C. Farias, the appointment of respondent Edward
Palafox.
A similar recommendation for the appointment of Edward Palafox was made by the Sangguniang Bayan
of San Nicolas but the recommendation was made to Mayor Barba. The resolution, containing the
recommendation, was submitted to the Sangguniang Panlalawigan of Ilocos Norte purportedly in
compliance with 56 of the Local Government Code (R.A. No. 7160). 1
The Sangguniang Panlalawigan, purporting to act under this provision of the Local Government Code,
disapproved the resolution "for the reason that the authority and power to appoint Sangguniang Bayan
members are lodged in the Governor, and therefore, the Resolution should be addressed to the Provincial
Governor." Accordingly, the Sangguniang Panlalawigan recommended to the Governor the appointment
of petitioner Al Nacino, vice Carlito Domingo, as member of the Sangguniang Bayan of San Nicolas. On
June 8, 1994, petitioner Governor appointed petitioner Nacino and swore him in office that same day.
On the other hand, respondent Mayor Barba appointed respondent Edward Palafox to the same position
on June 8, 1994. The next day, June 9, 1994, respondent Palafox took his oath as member of the
Sangguniang Bayan.
On June 14, 1994, petitioners filed with the Regional Trial Court of Ilocos Norte a petition for quo
warranto and prohibition, entitled "Governor Rodolfo C. Farias and Al Nacino v. Mayor Angelo M. Barba,
Vice Mayor Manuel S. Hernando, Jr. and Edward D. Palafox."

Petitioners contend that the power to fill a vacancy in the Sangguniang Bayan, which is created as a
result of the cessation from office of a member who does not belong to a political party, is vested in the
provincial governor upon recommendation of the Sangguniang Panlalawigan.
The statutory provision in question is 45 of the Local Government Code of 1991 (R.A. No . 7160) which
reads:
45. Permanent Vacancies in the Sanggunian. (a) Permanent vacancies in the
sanggunian where automatic successions provided above do not apply shall be
filled by appointment in the following manner:
(1) The President, through the Executive Secretary, in the case
of the sangguniang panlalawigan and the sangguniang
panlungsod of highly urbanized cities and independent
component cities;
(2) The governor, in the case of the sangguniang panlungsod of
component cities and the sangguniang bayan;
[1] Since the vacancy in this case was created by a Sanggunian member who did not belong to any
political party, the specific provision involved is par. (c), to wit:
(c) In case the permanent vacancy is caused by a sanggunian member who does
not belong to any political party, the local chief executive shall, upon
recommendation of the sanggunian concerned, appoint a qualified person to fill
the vacancy.
But who is the "local chief executive" referred? And which is the "sanggunian concerned"? With respect to
the first ("local chief executive"), petitioners look to 45(a) for the answer and say that it is the governor,
with respect to vacancies in the Sangguniang Panlungsod of component cities and Sangguniang Bayan,
or the mayor with respect to vacancies in the Sangguniang Barangay.
Reference to these provisions is appropriate not for the reason advanced by petitioners, i.e., that the
power to appoint implies the power to remove, but because implicit in these provisions is a policy to vest
in the President, the governor and the mayor in descending order the exercise of an executive power
whether to appoint in order to fill vacancies in local councils or to suspend local officials. These provisions
are in pari materia with 45.
To be sure the President of the Philippines can not be referred to as "local chief executive" in 45(c) but it
is apparent that the phrase is a misnomer and that the choice of this phrase was simply dictated by the
need to avoid, for stylistic reasons, interminably repeating the officials on whom the power to appoint is
conferred. Perhaps "authorities concerned" would have been a more accurate generic phrase to use.
For that matter, to follow private respondents' interpretation would be to run into a similar, if not greater,
difficulty. For 45(a) (3) vests the power to fill vacancies in the Sangguniang Barangay in the mayor but
the local chief executive of a barangay is not the mayor. It is the punong barangay. Yet "local chief
executive" cannot be applied to the punong barangay without rendering 45(a) (3) meaningless. For then
there would never be any occasion when the mayor, under this provision, can appoint a replacement for a
member of the Sangguniang Bayan who for one reason or another ceases from office for reason other
than the expiration of his term. And why should a vacancy in the Sangguniang Panlalawigan be filled by a
different authority (the governor, according to this view) simply because the vacancy was created by a
member who does not belong to a political party when, according to 45(a) (1), a vacancy created by a
member who belongs to a political party must be filled by appointment by the President of the
Philippines?

We think that the phrase "sanggunian concerned" in 45(c) should more properly be understood as
referring to the Sanggunian in which the vacancy is created. This is in keeping with the policy implicit in
45(a) (3).
In other words, with the exception of the Sangguniang Barangay pars. (a) and (b) must be read as
providing for the filling of vacancies in the various Sanggunians when these vacancies are created as a
result of the cessation from office (other than expiration of term) of members who belong to political
parties. On the other hand, 45(c) must be understood as providing for the filling of vacancies created by
members who do not belong to any political party. Consequently, 45 must be construed to mean that
I. Where the Permanent Vacancy is Caused by a Sanggunian Member Belonging
to a Political Party
A. Sangguniang Panlalawigan and Sangguniang Panlungsod of
highly urbanized cities and independent component cities The
President, through the Executive Secretary, upon the nomination
and certification of the political party to which the member who
caused the vacancy belonged, as provided in 45 (b).
B. Sangguniang Panlungsod of component cities and
Sangguniang Bayan The Governor upon the nomination and
certification of the political party to which the member who
caused the vacancy belonged, as provided in 45 (b).
III. Where the Vacancy is Caused by a Sanggunian Member Not Belonging to a
Political Party
A. Sangguniang Panlalawigan and Sangguniang Panlungsod of
highly urbanized and independent component cites The
President, through the Executive Secretary, upon
recommendation of the Sangguniang Panlalawigan or
Sangguniang Panlungsod as the case may be
B. Sangguniang Panlungsod of component cities and
Sangguniang Bayan The Governor upon recommendation of
the Sangguniang Panlungsod or Sangguniang Bayan as the
case may be
III. Where the Vacancy is Caused by a Member of the Sangguniang Barangay
City or Municipal Mayor upon recommendation of the Sangguniang Barangay
There is only one rule governing appointments to the Sangguniang Barangay. Any vacancy therein
caused by the cessation from office of a member must be made by the mayor upon the recommendation
of that Sanggunian. The reason is that members of the Sangguniang Barangay are not allowed to have
party affiliations.
[2] Having determined that appointments in case of vacancies caused by Sanggunian members who do
not belong to any political party must be made in accordance with the "recommendation" of the
Sanggunians concerned where the vacancies occur, the next question is: Is the appointing authority
limited to the appointment of those "recommended" to him? We think an affirmative answer must be given
to the question. The appointing authority is not bound to appoint anyone recommended to him by the
Sanggunian concerned. The power of appointment is a discretionary power. On the other hand, neither is
the appointing power vested with so large a discretion that he can disregard the recommendation of the
Sanggunian concerned, Since the recommendation takes the place of nomination by political party, the

recommendation must likewise be considered a condition sine qua non for the validity of the appointment,
by analogy to the provision of 45(b).
[3] The upshot of this is that in the case at bar, since neither petitioner Al Nacino nor respondent Edward
Palafox was appointed in the manner indicated in the preceding discussion, neither is entitled to the seat
in the Sangguniang Bayan of San Nicolas, Ilocos Norte which was vacated by member Carlito B.
Domingo. For while petitioner Al Nacino was appointed by the provincial governor, he was not
recommended by the Sangguniang Bayan of San Nicolas. On the other hand, respondent Edward
Palafox was recommended by the Sangguniang Bayan but it was the mayor and not the provincial
governor who appointed him.
PURTO J. NAVARRO and DANNY B. TAMAYO, petitioners,
vs.
COURT OF APPEALS et al, respondents.
In the May 11, 1997 local elections, the following officials were elected to office in the Municipality of
Mapandan, Pangasinan:

Cesar M. Calimlim

Mayor

Lakas NUCD-KAMPI

Baltazar Aquino

Vice-Mayor

Lakas NUCD-KAMPI

Elected as members of the Sangguniang Bayan ranked according to the highest number of votes
obtained were the following councilors:

Political Party

1. Danny B. Tamayo

REFORMA-LM

2. Rolando S. Soriano

REFORMA-LM

3. Leopoldo C. Biagtan

REFORMA-LM

4. Florentino Z. Lalas

REFORMA-LM

5. Mamerto Eden, Jr.

REFORMA-LM

6. Victorio C. Lalangan

LAKAS-NUCD-KAMPI

7. Judy A. Pascual

REFORMA-LM

8. Rolando Lalas

LAKAS-NUCD-KAMPI

On March 25, 1999, Mayor Cesar Calimlim died. A vacancy was thus created in the Office of the Mayor
so by operation of law, Section 44 of Republic Act 7160, otherwise known as the Local Government Code
of 1991, then Vice-Mayor Baltazar Aquino succeeded him. Accordingly, the highest-ranking member of
the Sangguniang Bayan, i.e. the one who garnered the highest number of votes, was elevated to the
position of the Vice-Mayor, pursuant to the same law. This was petitioner Danny B. Tamayo who belonged
to the REFORMA-LM political party.
Since a vacancy occurred in the Sangguniang Bayan by the elevation of petitioner Tamayo to the office of
the Vice-Mayor, Governor Victor Agbayani of Pangasinan appointed herein petitioner Purto J. Navarro as
Member of the Sangguniang Bayan. Navarro belonged to the same political party as that of petitioner
Tamayo.
Private respondents filed Civil Case No. 99-12958-D to nullify the appointment of petitioner Navarro
before the Regional Trial Court of Dagupan City, Branch 44 presided by Judge Crispin Laron. Their
motions for the issuance of a temporary restraining order and for the inhibition of Judge Laron having
been denied, private respondents filed a Petition for Review on Certiorari with this Court.
Under Section 44, a permanent vacancy arises when an elective official fills a higher vacant office,
refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise
permanently incapacitated to discharge the functions of his office.
What is crucial is the interpretation of Section 45(b) providing that "xxx only the nominee of the political
party under which the Sanggunian member concerned has been elected and whose elevation to the
position next higher in rank created the last vacancy in the Sanggunian shall be appointed in the manner
hereinabove provided. The appointee shall come from the political party as that of the Sanggunian
member who caused the vacancy xxx."
The reason behind the right given to a political party to nominate a replacement where a permanent
vacancy occurs in the Sanggunian is to maintain the party representation as willed by the people in the
election.2
With the elevation of petitioner Tamayo, who belonged to REFORMA-LM, to the position of Vice-Mayor, a
vacancy occurred in the Sanggunian that should be filled up with someone who should belong to the
political party of petitioner Tamayo. Otherwise, REFORMA-LMs representation in the Sanggunian would
be diminished. To argue that the vacancy created was that formerly held by Rolando Lalas, a LAKASNUCD-Kampi member, would result in the increase of that partys representation in the Sanggunian at the
expense of the REFORMA-LM. This interpretation is contrary to the letter and spirit of the law and thus
violative of a fundamental rule in statutory construction which is to ascertain and give effect to the intent
and purpose of the law.3 As earlier pointed out, the reason behind par. (b), section 44 of the Local
Government Code is the maintenance party representation in the Sanggunian in accordance with the will
of the electorate.

The "last vacancy" in the Sanggunian refers to that created by the elevation of the member formerly
occupying the next higher in rank which in turn also had become vacant by any of the causes already
enumerated. The term "last vacancy" is thus used in Sec. 45 (b) to differentiate it from the other vacancy
previously created. The term by no means refers to the vacancy in the No. 8 position which occurred with
the election of Rolando Lalas to the seventh position in the Sanggunian. Such construction will result in
absurdity.
ATTY. LUCKY M. DAMASEN, Petitioner,
vs.
OSCAR G. TUMAMAO, Respondent.
On December 2, 2004, Nelia Tumamao, the Vice-Mayor of San Isidro, Isabela, died. 3 As a result, a
permanent vacancy was created in the Office of the Vice-Mayor.
Pursuant to Sec. 44 of Republic Act (RA) No. 7160,4 Ligaya C. Alonzo (Alonzo) was elevated to the
position of Vice-Mayor, she being the highest-ranking member of the Sangguniang Bayan, that is, the one
who garnered the highest number of votes for that office. 5 As a result, a permanent vacancy was created
in the Sangguniang Bayan.
To fill up the ensuing vacancy in the Sangguniang Bayan, San Isidro Mayor Abraham T. Lim (Mayor Lim)
recommended to Governor Maria Gracia Cielo M. Padaca (Governor Padaca), the appointment of
respondent Oscar G. Tumamao (Tumamao), a member of the Laban ng Demokratikong Pilipino (LDP),
the same political party to which Alonzo belonged.6
On April 15, 2005, Tumamao took his oath as a member of the Sangguninang Bayan before Mayor Lim. 7
On April 26, 2005 and May 3, 2006, Tumamao attended the regular sessions of the Sangguniang Bayan. 8
On May 5, 2005, petitioner Atty. Lucky Damasen (Damasen) became a member of the LDP after taking
his oath of affiliation before the LDP Provincial Chairman, Ms. Ana Benita Balauag (Provincial Chairman
Balauag).9 On even date, Damasen was able to secure from LDP Provincial Chairman Balauag a letter of
nomination addressed to Governor Padaca for his appointment to the Sangguniang Bayan. 10
On May 12, 2005, Damasen was appointed as Sangguniang Bayan member by Governor Padaca. 11
On May 16, 2005, Damasen took his oath as member of the Sangguniang Bayan before Governor
Padaca.12
On May 17, 2005, Damasen attended the Sangguniang Bayan session, but with Tumamao present
thereat, the former was not duly recognized.13 Hence, in the afternoon of the same day, Damasen filed
with the Regional Trial Court of Santiago City (RTC) a Petition for Quo Warranto with Prayer for the
Issuance of a Writ of Preliminary Injunction,14seeking to be declared the rightful member of the
Sangguniang Bayan, claiming that he had been nominated by LDP Provincial Chairman Balauag and had
been appointed thereto by Governor Padaca.15 The case was docketed as Special Civil Action Case No.
0234.
As can be gleaned from the above provision, the law provides for conditions for the rule of succession to
apply: First, the appointee shall come from the same political party as that of the Sanggunian member
who caused the vacancy. Second, the appointee must have a nomination and a Certificate of Membership
from the highest official of the political party concerned.

On June 14 2005, LDP Provincial Chairman Balauag sent a letter to Governor Padaca revoking the
nomination she issued in favor of Damasen, the text of which in hereunder reproduced in its entirety, to
wit:
This refers to the nomination which I issued in favor of Atty. Lucky M. Damasen to fill in the vacancy in the
Sangguniang Bayan of San Isidro, Isabela dated May 5, 2005.
When Judge Jose O. Ramos (Ret.) together with Atty. Damasen came to see me at my residence in
Quezon City sometime in the month of May, 2005, to request the nomination of Atty. Damasen, he did not
inform me that Atty. Damasen was a candidate for Mayor in the May 2004 elections affiliated with the
Lakas Party and who ran against our Partys candidate for Mayor in San Isidro. I was given the
impression that Atty. Damasen was not affiliated with any political party that is why I signed the
documents presented to me and endorsed his nomination. However, I later learned that Atty. Damasen
was actually a candidate for Mayor and a member of Lakas so that his joining our Party and his
nomination as such to the vacant position of Sanggunian member is not accordance with our Partys
principles pursuant to Sec. 2, Art. IV of our By-Laws.
In view of the foregoing, as the Provincial Chairman of LDP-LABAN, I am constrained to withdraw, cancel,
and/or revoke the nomination issued to Atty. Lucky M. Damasen dated May 5, 2005 for all legal intents
and purposes.38
It is not the province of this Court to decide if in fact LDP Provincial Chairman Balauag knew or should
have known that Damasen was a member of the Lakas-CMD party. However, as can be gleaned from the
Transcript of Stenographic Notes dated July 12, 2005, LDP Provincial Chairman Balauag repeatedly
denied knowing that Damasen ran for Mayor in San Isidro, Isabela. 42 The same notwithstanding, this
Court must take into consideration the fact that Damasen was previously a member of the Lakas-CMD
party. Likewise, while the revocation of Damasens nomination came after the fact of his appointment by
Governor Padaca, the same should not serve to bar any contest on said appointment as the primordial
issue to be determined is whether or not Damasen has complied with the requirements of Sec. 45 (b) of
RA 7160.
The reason behind the right given to a political party to nominate a replacement where a permanent
vacancy occurs in the Sanggunian is to maintain the party representation as willed by the people in the
election.
Since the permanent vacancy in the Sanggunian occurred because of the elevation of LDP member
Alonzo to vice-mayor, it follows that the person to succeed her should also belong to the LDP so as to
preserve party representation. Thus, this Court cannot countenance Damasens insistence in clinging to
an appointment when he is in fact not a bona fide member of the LDP. While the revocation of the
nomination given to Damasen came after the fact of his appointment, this Court cannot rule in his favor,
because the very first requirement of Sec. 45 (b) is that the appointee must come from the political party
as that of the Sanggunian member who caused the vacancy. To stress, Damasen is not a bona fide
member of the LDP.
In addition, appointing Damasen would not serve the will of the electorate. He himself admitts that he was
previously a member of the Lakas-CMD, and that he ran for the position of Mayor under the said party on
the May 2004 Elections. Likewise, he did not resign from the said party when he joined the LDP, and even
admitted that his joining the LDP was not because of party ideals, but because he just wanted to. 46 How
can the will of the electorate be best served, given the foregoing admissions of Damasen? If this Court
were to grant herein petition, it would effectively diminish the party representation of the LDP in the
Sanggunian, as Damasen would still be considered a member of the Lakas-CMD, not having resigned
therefrom, a scenario that defeats the purpose of the law, and that ultimately runs contrary the ratio of
Navarro.1avvphi1

Lastly, the records of the case reveal that Tumamao has the nomination 47 of Senator Edgardo J. Angara,
the Party Chairman and, therefore, the highest official of the LDP. In addition, he is a member in good
standing of the LDP.48Thus, given the foregoing, it is this Courts view that Tumamao has complied with
the requirements of law.
Section 46. Temporary Vacancy in the Office of the Local Chief Executive. (a) When the governor, city or municipal mayor, or punong barangay is temporarily
incapacitated to perform his duties for physical or legal reasons such as, but not limited
to, leave of absence, travel abroad, and suspension from office, the vice-governor, city or
municipal vice-mayor, or the highest ranking sangguniang barangay member shall
automatically exercise the powers and perform the duties and functions of the local chief
executive concerned, except the power to appoint, suspend, or dismiss employees which
can only be exercised if the period of temporary incapacity exceeds thirty (30) working
days.
(b) Said temporary incapacity shall terminate upon submission to the appropriate
sanggunian of a written declaration by the local chief executive concerned that he has
reported back to office. In cases where the temporary incapacity is due to legal causes,
the local chief executive concerned shall also submit necessary documents showing that
said legal causes no longer exist.
(c) When the incumbent local chief executive is traveling within the country but outside
his territorial jurisdiction for a period not exceeding three (3) consecutive days, he may
designate in writing the officer-in-charge of the said office. Such authorization shall
specify the powers and functions that the local official concerned shall exercise in the
absence of the local chief executive except the power to appoint, suspend, or dismiss
employees.
(d) In the event, however, that the local chief executive concerned fails or refuses to issue
such authorization, the vice-governor, the city or municipal vice-mayor, or the highest
ranking sangguniang barangay member, as the case may be, shall have the right to
assume the powers, duties, and functions of the said office on the fourth (4th) day of
absence of the said local chief executive, subject to the limitations provided in subsection
(c) hereof.
(e) Except as provided above, the local chief executive shall in no case authorize any
local official to assume the powers, duties, and functions of the office, other than the vicegovernor, the city or municipal vice-mayor, or the highest ranking sangguniang barangay
member, as the case may be.
THE PEOPLE OF THE PHILIPPINES, plaintiff-appelee,
vs.
FEDERIC BUSTAMANTE, defendant-appellant.
The records disclose that defendant-appellant Bustamante was united in wedlock to one Maria Perez on
August 9, 1954, before the Justice of the Peace of Binalonan, Pangasinan (Exh. "A", pp. 9-11, t.s.n.). A
little over a year later, or on September 16, 1955, he contracted a second marriage with Demetria
Tibayan, solemnized before Vice-Mayor Francisco B. Nato of Mapandan, Pangasinan, who was then
acting as Mayor of the said Municipality (Exh. "B"), while the first marriage was still subsisting. Defendant
dwelt with Demetria and her parents for about a month, after which a time he returned to Calasiao,
Pangasinan to live with the first wife, Maria Perez. In the course of her search for him, Demetria
discovered from the Binalonan municipal authorities the previous marriage of defendant Bustamante.
Hence, this accusation.

Defendant did not testify in his behalf during the trial. the main problem poised in this appeal concerns the
authority of Francisco Nato to solemnize the second marriage.
It appears that Enrique Aquino and Francisco Nato were the duly elected mayor and vice-mayor,
respectively, of the municipality of Mapandan, Pangasinan in the elections of 1951. On September 16,
1955, Aquino went on leave of absence for one month. In view of this, the vice-mayor was designed by
the mayor to take over the rein of municipal government during his absence; and Nato was acting in this
capacity when he performed the second marriage of Bustamante with Demetria Tibayan.
Appellant, relying upon article 56 of the Civil Code of the Philippines
Art. 56. Marriage may be solemnized by:
(1) The Chief Justice and Associate Justices of the Supreme Court;
(2) The Presiding Justice and the Justice of the Court of Appeals;
(3) Judges of the Courts of First Instance;
(4) Mayors of cities and municipalities;
(5) Municipal judges and justices of the Peace;
(6) Priests, rabbis, ministers of the gospel of any denominations, church, religion or sect,
duly registered, as provided in article 92; and
(7) Ship captains, airplanes chiefs, military commanders, and consuls and vice-consuls in
special cases provided in provided in articles 74 and 75.
contends that there could not have been a second marriage to speak of, as Nato was merely acting as
mayor when he celebrated the same, hence, without authority of law to do so. He lays stress on the
distinction made by this court in the case Salaysay vs. Hon. Fred Ruiz Castro, et al.* 52 Off. Gaz., No. 2,
809, between "Acting Mayor" and "Vice-Mayor acting as Mayor", urging that while the former may
solemnize marriages, the latter could not.
We find this connection untenable. When the issue involves the assumption of powers and duties of the
office of the mayor by the vice-mayor, when proper, it is immaterial whether it because the latter is the
Acting Mayor or merely acting as Mayor, for in both instances, he discharges all the duties and wields the
power appurtenant to said office (Laxamana vs. Baltazar,1 48 Off. Gaz., No. 9, 3869; Sec. 2195, Revised
Administrative Code). The case of Salaysay vs. Castro (supra) cited by the appellant, which revolves
upon the interpretation of section 27 of the Revised Election Code, is entirely distinct from the one at bar.
This instance does not involve a question of title to the office, but the performance of the functions
thereunto appertaining by one who is admitted to be temporarily vested with it. As correctly observed by
the lower court, that case even concedes and recognizes the powers and duties of the Mayor to devolve
upon the Vice-Mayor whenever the latter is in an acting capacity. The word "acting" as held in the case
ofAustria vs. Amante,2 45 Off. Gaz., 2809, when preceding the title of an office connotes merely the
temporary character or nature of the same.
Section 47. Approval of Leaves of Absence. (a) Leaves of absence of local elective officials shall be approved as follows:

(1) Leaves of absence of the governor and the mayor of a highly urbanized city
or an independent component city shall be approved by the President or his duly
authorized representative;
(2) Leaves of absence of vice-governor or a city or municipal vice-mayor shall be
approved by the local chief executive concerned: Provided, That the leaves of
absence of the members of the sanggunian and its employees shall be approved
by the vice-governor or city or municipal vice-mayor concerned;
(3) Leaves of absence of the component city or municipal mayor shall be
approved by the governor; and
(4) Leaves of absence of a punong barangay shall be approved by the city or
municipal mayor: Provided, That leaves of absence of sangguniang barangay
members shall be approved by the punong barangay.
(b) Whenever the application for leave of absence hereinabove specified is not acted
upon within five (5) working days after receipt thereof, the application for leave of
absence shall be deemed approved.