Cases Digests on Local Government Code

DICANG, VAN OLIVER M.Baguio City

ATTY. VICENTE E. SALUMBIDES, JR., and GLENDA ARAÑA, Petitioners, vs. OFFICE OF THE OMBUDSMAN, RICARDO AGON, RAMON VILLASANTA, ELMER DIZON, SALVADOR ADUL, and AGNES FABIAN, Respondents,

GR No. 180917 April 20, 2010

FACTS OF THE CASE:

Vicente Jr. (Salumbides) and Glenda (Arana), Municipal Legal Officer/Administrator and Municipal Budget Officer, respectively, of Tagkaywayan, Quezon, along with Mayor Vicente III (Salumbides) were charged administratively in connection with the construction of a two-classroom building for the Tagkawayan Municipal High School, without the required appropriation of the Sangguniang Bayan, and without public bidding, the funds for which they sourced from the Maintenance and Other Operating Expenses/Repair and Maintenance of Facilities (MOOE/RMF) for the year 2002, as was allegedly done by the previous administration. Construction proceeded, and even after the project was included in the list of projects to be bidder, no bidders participated. The other members of the Sangguniang Bayan then filed with the Office of the Ombudsman an administrative case for Dishonesty, Grave Misconduct, Gross Neglect of Duty, Conduct Prejudicial to the Best Interest of the Service, and violation of the Commission on Audit (COA) Rules and the Local Government Code. By order of June 14, 2002, the OMB denied the prayer for issuance of preventive suspension order, and on February 1, 2005, approved on April 11, 2005, denied the motion for reconsideration but dropped Mayor Vicente and Councilor Coleta from the charges in view of their reelection in the 2004 elections. The OMB later found Vicente Jr. And Glenda liable for Simple Neglect of Duty and imposed a six-month suspension upon them. Their motion for reconsideration denied, they elevated their case to the Supreme Court after their petition for certiorari was denied by the CA. They argue that the principle of condonation should be expanded to cover coterminous appointive officials who were administratively charged along with the reelected official/appointing authority with infractions allegedly committed during their preceding term.

RESOLUTION OF THE CASE:

For non-compliance with the rule on certification against forum shopping, the petition merits outright dismissal. The verification portion of the petition does not carry a certification against forum shopping[1].

The Court has distinguished the effects of non-compliance with the requirement of verification and that of certification against forum shopping. A defective verification shall be treated as an unsigned pleading and thus produces no legal effect, subject to the discretion of the court to allow the deficiency to be remedied, while the failure to certify against forum shopping shall be cause for dismissal without prejudice, unless otherwise provided, and is not curable by amendment of the initiatory pleading[2].

Petitioners’ disregard of the rules was not the first. Their motion for extension of time to file petition was previously denied by Resolution of January 15, 2008[3] for non-compliance with the required showing of competent proof of identity in the Affidavit of Service. The Court, by Resolution of March 4, 2008,[4] later granted their motion for reconsideration with motion to admit appeal (Motion with Appeal) that was filed on February 18, 2008 or the last day of filing within the extended period.


Moreover, in their Manifestation/Motion[5] filed a day later, petitioners prayed only for the admission of nine additional copies of the Motion with Appeal “due to honest inadvertence” in earlier filing an insufficient number of copies. Petitioners were less than candid when they surreptitiously submitted a Motion with Appeal which is different from the first set they had submitted. The second set of Appeal includes specific Assignment of Errors[6] and already contains a certification against forum shoppin[7] embedded in the Verification. The two different Verifications were notarized by the same notary public and bear the same date and document number[8]. The rectified verification with certification, however, was filed beyond the reglementary period.Its lapses aside, the petition just the same merits denial.

Petitioners urge this Court to expand the settled doctrine of condonation[9] to cover coterminous appointive officials who were administratively charged along with the reelected official/appointing authority with infractions allegedly committed during their preceding term.

The Court rejects petitioners’ thesis.

More than 60 years ago, the Court in Pascual v. Hon. Provincial Board of Nueva Ecija[10] issued the landmark ruling that prohibits the disciplining of an elective official for a wrongful act committed during his immediately preceding term of office. The Court explained that “[t]he underlying theory is that each term is separate from other terms, and that the reelection to office operates as a condonation of the officer’s previous misconduct to the extent of cutting off the right to remove him therefor[11].

The Court should never remove a public officer for acts done prior to his present term of office. To do otherwise would be to deprive the people of their right to elect their officers. When the people elect[e]d a man to office, it must be assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his faults or misconduct, if he had been guilty of any. It is not for the court, by reason of such faults or misconduct[,] to practically overrule the will of the people[12]. (underscoring supplied)

Lizares v. Hechanova, et al[13]l. replicated the doctrine. The Court dismissed the petition in that case for being moot, the therein petitioner “having been duly reelected, is no longer amenable to administrative sanctions[14].”

Ingco v. Sanchez, et al[15]. clarified that the condonation doctrine does not apply to a criminal case[16]. Luciano v. The Provincial Governor, et al[17]., Olivarez v. Judge Villaluz,[18] and Aguinaldo v. Santos[19] echoed the qualified rule that reelection of a public official does not bar prosecution for crimes committed by him prior thereto.

Consistently, the Court has reiterated the doctrine in a string of recent jurisprudence including two cases involving a Senator and a Member of the House of Representatives[20].

Salalima v. Guingona, Jr[21]. and Mayor Garcia v. Hon. Mojica[22]a reinforced the doctrine. The condonation rule was applied even if the administrative complaint was not filed before the reelection of the public official, and even if the alleged misconduct occurred four days before the elections, respectively. Salalima did not distinguish as to the date of filing of the administrative complaint, as long as the alleged misconduct was committed during the prior term, the precise timing or period of which Garcia did not further distinguish, as long as the wrongdoing that gave rise to the public official’s culpability was committed prior to the date of reelection.


Petitioners’ theory is not novel.

A parallel question was involved in Civil Service Commission v. Sojor[23] where the Court found no basis to broaden the scope of the doctrine of condonation:

Lastly, We do not agree with respondent’s contention that his appointment to the position of president of NORSU, despite the pending administrative cases against him, served as a condonation by the BOR of the alleged acts imputed to him. The doctrine this Court laid down in Salalima v. Guingona, Jr. and Aguinaldo v. Santos are inapplicable to the present circumstances. Respondents in the mentioned cases are elective officials, unlike respondent here who is an appointed official. Indeed, election expresses the sovereign will of the people. Under the principle of vox populi est suprema lex, the re-election of a public official may, indeed, supersede a pending administrative case. The same cannot be said of a re-appointment to a non-career position. There is no sovereign will of the people to speak of when the BOR re-appointed respondent Sojor to the post of university president[24]. (emphasis and underscoring supplied)lawph!l

Contrary to petitioners’ asseveration, the non-application of the condonation doctrine to appointive officials does not violate the right to equal protection of the law.

In the recent case of Quinto v. Commission on Elections[25], the Court applied the four-fold test in an equal protection challenge[26] against the resign-to-run provision, wherein it discussed the material and substantive distinctions between elective and appointive officials that could well apply to the doctrine of condonation:

The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not.

Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority.

x x x x

An election is the embodiment of the popular will, perhaps the purest expression of the sovereign power of the people. It involves the choice or selection of candidates to public office by popular vote. Considering that elected officials are put in office by their constituents for a definite term, x x x complete deference is accorded to the will of the electorate that they be served by such officials until the end of the term for which they were elected. In contrast, there


is no such expectation insofar as appointed officials are concerned. (emphasis and underscoring supplied)

The electorate’s condonation of the previous administrative infractions of the reelected official cannot be extended to that of the reappointed coterminous employees, the underlying basis of the rule being to uphold the will of the people expressed through the ballot. In other words, there is neither subversion of the sovereign will nor disenfranchisement of the electorate to speak of, in the case of reappointed coterminous employees.

It is the will of the populace, not the whim of one person who happens to be the appointing authority, that could extinguish an administrative liability. Since petitioners hold appointive positions, they cannot claim the mandate of the electorate. The people cannot be charged with the presumption of full knowledge of the life and character of each and every probable appointee of the elective official ahead of the latter’s actual reelection.

Moreover, the unwarranted expansion of the Pascual doctrine would set a dangerous precedent as it would, as respondents posit, provide civil servants, particularly local government employees, with blanket immunity from administrative liability that would spawn and breed abuse in the bureaucracy.

Asserting want of conspiracy, petitioners implore this Court to sift through the evidence and re-assess the factual findings. This the Court cannot do, for being improper and immaterial.

Under Rule 45 of the Rules of Court, only questions of law may be raised, since the Court is not a trier of facts[27]. As a rule, the Court is not to review evidence on record and assess the probative weight thereof. In the present case, the appellate court affirmed the factual findings of the Office of the Ombudsman, which rendered the factual questions beyond the province of the Court.

Moreover, as correctly observed by respondents, the lack of conspiracy cannot be appreciated in favor of petitioners who were found guilty of simple neglect of duty, for if they conspired to act negligently, their infraction becomes intentiona[28]l. There can hardly be conspiracy to commit negligence[29].

Simple neglect of duty is defined as the failure to give proper attention to a task expected from an employee resulting from either carelessness or indifference[30]. In the present case, petitioners fell short of the reasonable diligence required of them, for failing to exercise due care and prudence in ascertaining the legal requirements and fiscal soundness of the projects before stamping their imprimatur and giving their advice to their superior.

The appellate court correctly ruled that as municipal legal officer, petitioner Salumbides “failed to uphold the law and provide a sound legal assistance and support to the mayor in carrying out the delivery of basic services and provisions of adequate facilities when he advised [the mayor] to proceed with the construction of the subject projects without prior competitive bidding[31].” As pointed out by the Office of the Solicitor General, to absolve Salumbides is tantamount to allowing with impunity the giving of erroneous or illegal advice, when by law he is precisely tasked to advise the mayor on “matters related to upholding the rule of law.”[32] Indeed, a legal officer who renders a legal opinion on a course of action without any legal basis becomes no different from a lay person who may approve the same because it appears justified.


As regards petitioner Glenda, the appellate court held that the improper use of government funds upon the direction of the mayor and prior advice by the municipal legal officer did not relieve her of liability for willingly cooperating rather than registering her written objection[33] as municipal budget officer.

Aside from the lack of competitive bidding, the appellate court, pointing to the improper itemization of the expense, held that the funding for the projects should have been taken from the “capital outlays” that refer to the appropriations for the purchase of goods and services, the benefits of which extend beyond the fiscal year and which add to the assets of the local government unit. It added that current operating expenditures like MOOE/RMF refer to appropriations for the purchase of goods and services for the conduct of normal local government operations within the fiscal year.[34]

In Office of the Ombudsman v. Tongson[35], the Court reminded the therein respondents, who were guilty of simple neglect of duty, that government funds must be disbursed only upon compliance with the requirements provided by law and pertinent rules.Simple neglect of duty is classified as a less grave offense punishable by suspension without pay for one month and one day to six months. Finding no alleged or established circumstance to warrant the imposition of the maximum penalty of six months, the Court finds the imposition of suspension without pay for three months justified.

When a public officer takes an oath of office, he or she binds himself or herself to faithfully perform the duties of the office and use reasonable skill and diligence, and to act primarily for the benefit of the public. Thus, in the discharge of duties, a public officer is to use that prudence, caution, and attention which careful persons use in the management of their affairs[36].

Public service requires integrity and discipline. For this reason, public servants must exhibit at all times the highest sense of honesty and dedication to duty. By the very nature of their duties and responsibilities, public officers and employees must faithfully adhere to hold sacred and render inviolate the constitutional principle that a public office is a public trust; and must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency[37].

WHEREFORE, the assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 96889 are AFFIRMED with MODIFICATION, in that petitioners, Vicente Salumbides, Jr. and Glenda Araña, are suspended from office for three (3) months without pay.


CRISOSTOMO B. AQUINO, PETITIONER, VS. MUNICIPALITY OF MALAY, AKLAN, REPRESENTED BY HON. MAYOR JOHN P. YAP, SANGGUNIANG BAYAN OF MALAY, AKLAN, REPRESENTED BY HON. EZEL FLORES, DANTE PASUGUIRON, ROWEN AGUIRRE, WILBEC GELITO, JUPITER GALLENERO, OFFICE OF THE MUNICIPAL ENGINEER, OFFICE OF THE MUNICIPAL TREASURER, BORACAY PNP CHIEF, BORACAY FOUNDATION, INC., REPRESENTED BY NENETTE GRAF, MUNICIPAL AUXILIARY POLICE, AND JOHN AND JANE DOES, RESPONDENTS.

GR NO. 211356 September 29, 2014

FACTS OF THE CASE:

The Municipal Mayor of Aklan issued Executive Order 10, to close and demolish the Boracay West Cove Hotel. The antecedents of the case reveal that Crisostomo, the president and CEO of Boracay Island West Cove Management Philippines, Inc applied for a zoning compliance to build a three-storey hotel with the municipal government, which the Municipal Zoning Administrator denied because the construction violates the “no-build zone” of Municipal Ordinance No. 2000-131, which prohibits constructions 25 meters from the edge of the mean high water mark. Crisostomo filed an appeal with the Municipal Mayor, but no action was taken thereon. On April 5, 2011, a Notice of Assessment was sent to Crisostomo demanding payment for unpaid real estate estate taxes and other liabilities under pain of closure because of its continuos operation without the required building permit, zoning permit, and business and mayor’s permit. Crisostomo expressed willingness to pay the company’s obligation but the municipal treasurer refused to accept his tender of payment. After a Cease and Desist Order was issued to the hotel, the Municipal Mayor then issued EO 10 which ordered the closure and demolition of the hotel. EO 10 was partially implemented. Crisostomo thus filed a petition for certiorari with the Court of Appeals, alleging that the order was issued with grave abuse of discretion; that judicial proceedings are first necessary before the hotel may be closed and demolished; that the hotel is a grantee of FLAGt., that the area is a forestland thus the DENR had jurisdiction over it. In its comment, the municipality argued that the FLAGt does not excuse the company from compliance with the Ordinance and the National Building Code, and that the mayor is granted express powers under the Local Government Code to demolish illegally built structures.

The CA dismissed the petition for certiorari, holding that the exercise of the power of the mayor was not done as a quasi-judicial function, hence not correctible by certiorari; the proper remedy for Crisostomo was to file a petition for declaratory relief with the Regional Trial Court. Crisostomo elevated his case to the Supreme Court, alleging that the demolition of the hotel was beyond the municipal mayor’s powers.

RESOLUTION OF THE COURT:

“Article 694 of the Civil Code defines “nuisance” as any act, omission, establishment, business, condition or property, or anything else that (1) injures or endangers the health or safety of others; (2) annoys or offends the senses; (3) shocks, defies or disregards decency or


morality; (4) obstructs or interferes with the free passage of any public highway or street, or any body of water; or (5) hinders or impairs the use of property.

In establishing a no build zone through local legislation, the LGU effectively made a determination that constructions therein, without first securing exemptions from the local council, qualify as nuisances for they pose a threat to public safety. No build zones are intended for the protection of the public because the stability of the ground’s foundation is adversely affected by the nearby body of water. The ever present threat of high rising storm surges also justifies the ban on permanent constructions near the shoreline. Indeed, the area’s exposure to potential geo-hazards cannot be ignored and ample protection to the residents of Malay, Aklan should be afforded.

Challenging the validity of the public respondents’ actuations, petitioner posits that the hotel cannot summarily be abated because it is not a nuisance per se, given the hundred million peso-worth of capital infused in the venture. Citing Asilo, Jr. v. People, petitioner also argues that respondents should have first secured a court order before proceeding with the demolition.

Preliminarily, We agree with petitioner’s posture that the property involved cannot be classified as a nuisance per se, but not for the reason he so offers. Property valuation, after all, is not the litmus test for such a determination. More controlling is the property’s nature and conditions, which should be evaluated to see if it qualifies as a nuisance as defined under the law.

As jurisprudence elucidates, nuisances are of two kinds: nuisance per se and nuisance per accidens. The first is recognized as a nuisance under any and all circumstances, because it constitutes a direct menace to public health or safety, and, for that reason, may be abated summarily under the undefined law of necessity. The second is that which depends upon certain conditions and circumstances, and its existence being a question of fact, it cannot be abated without due hearing thereon in a tribunal authorized to decide whether such a thing does in law constitute a nuisance.

In the case at bar, the hotel, in itself, cannot be considered as a nuisance per se since this type of nuisance is generally defined as an act, occupation, or structure, which is a nuisance at all times and under any circumstances, regardless of location or surrounding. Here, it is merely the hotel’s particular incident––its location––and not its inherent qualities that rendered it a nuisance. Otherwise stated, had it not been constructed in the no build zone, Boracay West Cove could have secured the necessary permits without issue. As such, petitioner is correct that the hotel is not a nuisance per se, but to Our mind, it is still a nuisance per accidens.

x x x

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

We agree with petitioner’s contention that, under Section 447(a)(3)(i) of R.A. No. 7160, otherwise known as the Local Government Code, the Sangguniang Panglungsod is empowered to enact ordinances declaring, preventing or abating noise and other forms of nuisance. It bears stressing, however, that the Sangguniang Bayan cannot declare a particular thing as a nuisance per se and order its condemnation. It does not have the power to find, as a fact, that a particular thing is a nuisance when such thing is not a nuisance per se; nor can it authorize the


extrajudicial condemnation and destruction of that as a nuisance which in its nature, situation or use is not such. Those things must be determined and resolved in the ordinary courts of law. If a thing, be in fact, a nuisance due to the manner of its operation, that question cannot be determined by a mere resolution of the Sangguniang Bayan. (emphasis supplied)

Despite the hotel’s classification as a nuisance per accidens, however, We still find in this case that the LGU may nevertheless properly order the hotel’s demolition. This is because, in the exercise of police power and the general welfare clause, property rights of individuals may be subjected to restraints and burdens in order to fulfill the objectives of the government. Otherwise stated, the government may enact legislation that may interfere with personal liberty, property, lawful businesses and occupations to promote the general welfare.

One such piece of legislation is the LGC, which authorizes city and municipal governments, acting through their local chief executives, to issue demolition orders. Under existing laws, the office of the mayor is given powers not only relative to its function as the executive official of the town; it has also been endowed with authority to hear issues involving property rights of individuals and to come out with an effective order or resolution thereon. Pertinent herein is Sec. 444 (b)(3)(vi) of the LGC, which empowered the mayor to order the closure and removal of illegally constructed establishments for failing to secure the necessary permits, to wit:

Section 444. The Chief Executive: Powers, Duties, Functions and Compensation. –

x x x x

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

(3) Initiate and maximize the generation of resources and revenues, and apply the same to the implementation of development plans, program objectives and priorities as provided for under Section 18 of this Code, particularly those resources and revenues programmed for agro-industrial development and country-wide growth and progress, and relative thereto, shall:x x x x

(vi) Require owners of illegally constructed houses, buildings or other structures to obtain the necessary permit, subject to such fines and penalties as may be imposed by law or ordinance, or to make necessary changes in the construction of the same when said construction violates any law or ordinance, or to order the demolition or removal of said house, building or structure within the period prescribed by law or ordinance. (emphasis supplied)”

x x x

“In the case at bar, petitioner admittedly failed to secure the necessary permits, clearances, and exemptions before the construction, expansion, and operation of Boracay Wet Cove’s hotel in Malay, Aklan. To recall, petitioner declared that the application for zoning compliance was still pending with the office of the mayor even though construction and operation were already ongoing at the same time. As such, it could no longer be denied that petitioner openly violated Municipal Ordinance 2000-131, which provides:


XXXXX

Petitioner cannot justify his position by passing the blame onto the respondent mayor and the latter’s failure to act on his appeal for this does not, in any way, imply that petitioner can proceed with his infrastructure projects. On the contrary, this only means that the decision of the zoning administrator denying the application still stands and that petitioner acquired no right to construct on the no build zone. The illegality of the construction cannot be cured by merely tendering payment for the necessary fees and permits since the LGU’s refusal rests on valid grounds.

Instead of taking the law into his own hands, petitioner could have filed, as an alternative, a petition for mandamus to compel the respondent mayor to exercise discretion and resolve the controversy pending before his office. There is indeed an exception to the rule that matters involving judgment and discretion are beyond the reach of a writ of mandamus, for such writ may be issued to compel action in those matters, when refused. Whether or not the decision would be for or against petitioner would be for the respondent mayor to decide, for while mandamus may be invoked to compel the exercise of discretion, it cannot compel such discretion to be exercised in a particular way. What would have been important was for the respondent mayor to immediately resolve the case for petitioner to be able to go through the motions that the zoning clearance application process entailed.”

x x x

“In the case at bench, the due process requirement is deemed to have been sufficiently complied with. First, basic is the rule that public officers enjoy the presumption of regularity in the performance of their duties. The burden is on the petitioner herein to prove that Boracay West Cove was deprived of the opportunity to be heard before EO 10 was issued. Regrettably, copies of the Cease and Desist Order issued by the LGU and of the assailed EO 10 itself were never attached to the petition before this Court, which documents could have readily shed light on whether or not petitioner has been accorded the 10-day grace period provided in Section 10 of the Ordinance. In view of this fact, the presumption of regularity must be sustained. Second, as quoted by petitioner in his petition before the CA, the assailed EO 10 states that petitioner received notices from the municipality government on March 7 and 28, 2011, requiring Boracay West Cove to comply with the zoning ordinance and yet it failed to do so. If such was the case, the grace period can be deemed observed and the establishment was already ripe for closure and demolition by the time EO 10 was issued in June. Third, the observance of the 10-day allowance for the owner to demolish the hotel was never questioned by petitioner so there is no need to discuss the same. Verily, the only grounds invoked by petitioner in crying due process violation are (1) the absence of a court order prior to demolition and (2) the municipal government’s exercise of jurisdiction over the controversy instead of the DENR. Therefore, it can no longer be belatedly argued that the 10-day grace period was not observed because to entertain the same would result in the violation of the respondents’ own due process rights.

Given the presence of the requirements under Sec. 444 (b)(3)(vi) of the LGC, whether the building constituted a nuisance per se or a nuisance per accidens becomes immaterial. The hotel was demolished not exactly because it is a nuisance but because it failed to comply with the legal requirements prior to construction. It just so happened that, in the case at bar, the hotel’s incident that qualified it as a nuisance per accidens––its being constructed within the no build zone––further resulted in the non-issuance of the necessary permits and clearances, which is a ground for demolition under the LGC. Under the premises, a court order that is required under normal circumstances is hereby dispensed with.”


ABRAHAM RIMANDO, PETITIONER, VS. NAGUILIAN EMISSION TESTING CENTER, INC., REPRESENTED BY ITS PRESIDENT, ROSEMARIE LLARENAS AND HON. COURT OF APPEALS, RESPONDENTS.

GR NO. 198860 July 23, 2012

FACTS OF THE CASE:

Naguillian Emission Testing Center Inc., filed a petition for mandamus and damages against Abraham Rimando (petitioner), the municipal mayor of Naguilian, La Union. In its complaint, the company alleged that from 2005 to 2007 its business is located on a land formerly belonging to the national government which was later certified as an alienable and disposable land of the public domain by the DENR. On January 18, 2008, it applied for a renewal of its business permit and paid the corresponding fees, but the petitioner refused to issue a business permit, until such time that the company executes a contract of lease with the municipality; the respondent is amenable to signing the contract but with some revisions, which the petitioner did not accept; no common ground was reached among the parties, hence the company filed the petition. The RTC ruled in favour of the petitioner; ratiocinating that: (a) the Municipality of Naguiian is the declared owner of the subject parcel of land by virtue of Tax Declaration No. 002-01197; (b) under Section 6A.01 of the Revenue Code of the Municipality of Naguilian, the municipality has the right to require the petitioner to sign a contract of lease because its business operation is being conducted on a real property owned by the municipality; and (c) a mayor’s duty to issue business permits is discretionary in nature which may not be enforced by a mandamus writ.

On appeal, the CA proceeded to discuss the merits of the case even though the petition itself is dismissible on the ground of mootness. It held that the factual milieu of the case justifies issuance of the writ; the tax declaration in the name of the municipality was insufficient basis to require the execution of a contract of lease as a condition sine qua non for the renewal of a business permit. The CA further observed that Sangguniang Bayan Resolution No. 2007-81, upon which the municipality anchored its imposition of rental fees, was void because it failed to comply with the requirements of the Local Government Code and its Implementing Rules and Regulations. It held the mayor not liable for damages since he acted in the performance of his duties which are legally protected by the presumption of regularity in the performance of official duty; the case against the mayor also was moot and academic since his term as mayor expired. Nevertheless, the CA reversed and set aside the RTC decision.

The petitioner elevated the matter to the Supreme Court.

ISSUE:

Whether or not the issue had become moot and academic;


Whether or not the issuance of a business permit maybe compelled thru a petition for mandamus.

RULING OF THE COURT:

The court agrees with the CA that the petition for mandamus has already become moot and academic owing to the expiration of the period intended to be covered by the business permit.

An issue or a case becomes moot and academic when it ceases to present a justiciable controversy so that a determination thereof would be without practical use and value1 or in the nature of things, cannot be enforced.2 In such cases, there is no actual substantial relief to which the applicant would be entitled to and which would be negated by the dismissal of the petition.3 As a rule, courts decline jurisdiction over such case, or dismiss it on ground of mootness.4

The objective of the petition for mandamus to compel the petitioner to grant a business permit in favor of respondent corporation for the period 2008 to 2009 has already been superseded by the passage of time and the expiration of the petitioner’s term as mayor. Verily then, the issue as to whether or not the petitioner, in his capacity as mayor, may be compelled by a writ of mandamus to release the respondent’s business permit ceased to present a justiciable controversy such that any ruling thereon would serve no practical value. Should the writ be issued, the petitioner can no longer abide thereby; also, the effectivity date of the business permit no longer subsists.

While the CA is not precluded from proceeding to resolve the otherwise moot appeal of the respondent, we find that the decretal portion of its decision was erroneously couched.

The CA’s conclusions on the issue of ownership over the subject land and the invalidity of Sangguniang Bayan Resolution No. 2007-81, aside from being unsubstantiated by convincing evidence, can no longer be practically utilized in favor of the petitioner. Thus, the overriding and decisive factor in the final disposition of the appeal was its mootness and the CA should have dismissed the same along with the petition for mandamus that spawned it.

More importantly, a mayor cannot be compelled by mandamus to issue a business permit since the exercise of the same is a delegated police power hence, discretionary in nature. This was the pronouncement of this Court in Roble Arrastre, Inc. v. Hon. Villaflor5 where a determination was made on the nature of the power of a mayor to grant business permits under the Local Government Code6, viz:

Central to the resolution of the case at bar is a reading of Section 444(b)(3)(iv) of the Local Government Code of 1991, which provides, thus:

SEC. 444. The Chief Executive: Powers, Duties, Functions and Compensation.

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


3) Initiate and maximize the generation of resources and revenues, and apply the same to the implementation of development plans, program objectives and priorities as provided for under Section 18 of this Code, particularly those resources and revenues programmed for agroindustrial development and country-wide growth and progress, and relative thereto, shall:

x x x x

(iv) Issue licenses and permits and suspend or revoke the same for any violation of the conditions upon which said licenses or permits had been issued, pursuant to law or ordinance.

As Section 444(b)(3)(iv) so states, the power of the municipal mayor to issue licenses is pursuant to Section 16 of the Local Government Code of 1991, which declares:

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

Section 16, known as the general welfare clause, encapsulates the delegated police power to local governments. Local government units exercise police power through their respective legislative bodies. Evidently, the Local Government Code of 1991 is unequivocal that the municipal mayor has the power to issue licenses and permits and suspend or revoke the same for any violation of the conditions upon which said licenses or permits had been issued, pursuant to law or ordinance. x x x

x x x x

Section 444(b)(3)(iv) of the Local Government Code of 1991, whereby the power of the respondent mayor to issue license and permits is circumscribed, is a manifestation of the delegated police power of a municipal corporation. Necessarily, the exercise thereof cannot be deemed ministerial. As to the question of whether the power is validly exercised, the matter is within the province of a writ of certiorari, but certainly, not of mandamus.7 (Citations omitted)

Indeed, as correctly ruled by the RTC, the petition for mandamus filed by the respondent is incompetent to compel the exercise of a mayor’s discretionary duty to issue business permits.

WHEREFORE, premises considered, the Decision dated March 30, 2011 of the Court of Appeals in CA-G.R. SP No. 112152 is hereby SET ASIDE. The Decision dated May 26, 2009 of the Regional Trial Court of Bauang, La Union is REINSTATED.


RAMONITO O. ACAAC, PETAL FOUNDATION, INC., APOLINARIO M. ELORDE, HECTOR ACAAC, AND ROMEO BULAWIN, PETITIONERS, VS. MELQUIADES D. AZCUNA, JR., IN HIS CAPACITY AS MAYOR, AND MARIETES B. BONALOS, IN HER CAPACITY AS MUNICIPAL ENGINEER AND BUILDING OFFICIAL-DESIGNATE, BOTH OF LOPEZ JAENA MUNICIPALITY, MISAMIS OCCIDENTAL, RESPONDENTS.

GR NO. 187378 September 30, 2013

FACTS OF THE CASE:

People’s Eco-Tourism and Livelihood foundation Inc. (PETAL), an NGO engaged in the protection and conservation of ecology, tourism, and livelihood, and founded by petitioner Ramonito Acaac built some cottages made of indigenous materials and a seminar cottage on Capayas Island, Lopez Jaena municipality which it rented out to the public. On April 11 and May 20, 2002, however, Mayor Melquiades Azcuna and Building Official Marietes Bantos issued Notices of Illegal Construction against PETAL and the petitioners allegedly for failure to apply for a building permit prior to the construction of the cottages. PETAL refused to comply, hence the respondents issued Third and Final Notices of Illegal Construction. On July 8, 2002, the Sangguniang Bayan adopted Municipal Ordinance No. 02 Series of 2002, prohibiting the entry of any entity, organisation, association or corporation, and the construction of structures, permanent or temporary on the premises of Capayas Island, except if authorised by the government. Azcuna approved the ordinance, hence it was forwarded to the Sangguniang Panlalawigan which conducted public hearings on the matter. Notices were also posted at Capayas Island prohibiting the ingress and egress thereto. A Notice of Voluntary Demoliton was served on PETAL forts is alleged numerous violations of the ordinance. Thus, PETAL and the individual petitioners filed an action for the issuance of a preliminary injunction and damages against the respondents, claiming tat stye hav prior physical possession of the property. Morevoer, Municipal Ordinance No, 02 Series of 2002 was void since it was adopted without a prior public consultation, not published in a newspaper of general publication in the provide as required under RA 7160, and it was not approved by the Sangguniang Panlalawigan. On the other hand, the respondents averred that the petitioners have no cause of action against them, Capayas Island not being owned by them since it is a timberland property belonging to the public domain. The ordinance was deemed approved by operation of law for failure of the SP to act on it within 30 days; and they have complied with the publication and posting requirements.

After trial, the RTC rendered judgment in favour of the petitioners. It ruled that the ordinance was not approved by the SP; neither was it published in a newspaper of general publication as required and/or posted; the authority and control over the timberland belong to the national government through the DENR. It therefore enjoined the respondents to desist from closing Capayas Island.


The Court of Appeals, however reversed the RTC ruling. The ordinance was deemed approved by the SP upon failure of the latter to act on it within 30 days; under Section 447 of the Local Government Code, the municipality of Lopez Jaena was clothed with sufficient power to pass and adopt the ordinance, thus it is not only the DENR that could administer the sanctuaries. It also grave credence to the claim by the municipality that it conducted public consultations before passing the municipality as well as complied with the publication and posting requirement.

The petitioners interposed their appeal to the Supreme Court.

ISSUE:

Whether or not the ordinance in question was valid.


The petition lacks merit.

Section 56 of the LGC provides:

SEC. 56. Review of Component City and Municipal Ordinances or Resolutions by the Sangguniang Panlalawigan. – (a) Within three (3) days after approval, the secretary to the Sangguniang Panlungsod or Sangguniang Bayan shall forward to the Sangguniang Panlalawigan for review, copies of approved ordinances and the resolutions approving the local development plans and public investment programs formulated by the local development councils.

(b) Within thirty (30) days after receipt of copies of such ordinances and resolutions, the Sangguniang Panlalawigan shall examine the documents or transmit them to the provincial attorney, or if there be none, to the provincial prosecutor for prompt examination. The provincial attorney or provincial prosecutor shall, within a period of ten (10) days from receipt of the documents, inform the Sangguniang Panlalawigan in writing his comments or recommendations, which may be considered by the Sangguniang Panlalawigan in making its decision.

(c) If the Sangguniang Panlalawigan finds that such an ordinance or resolution is beyond the power conferred upon the Sangguniang Panlungsod or Sangguniang Bayan concerned, it shall declare such ordinance or resolution invalid in whole or in part. The Sangguniang Panlalawigan shall enter its action in the minutes and shall advise the corresponding city or municipal authorities of the action it has taken.

(d) If no action has been taken by the Sangguniang Panlalawigan within thirty (30) days after submission of such an ordinance or resolution, the same shall be presumed consistent with law and therefore valid.

In this case, petitioners maintain that the subject ordinance cannot be deemed approved through the mere passage of time considering that the same is still pending with the Committee on Fisheries and Aquatic Resources of the SP.1 It, however, bears to note that more than 30 days have already elapsed from the time the said ordinance was submitted to the latter for


review by the SB;2 hence, it should be deemed approved and valid pursuant to Section 56 (d) above. As properly observed by the CA:

Par. (d) should be read in conjunction with par. (c), in order to arrive at the meaning of the disputed word, “action.” It is clear, based on the foregoing provision, that the action that must be entered in the minutes of the sangguniang panlalawigan is the declaration of the sangguniang panlalawigan that the ordinance is invalid in whole or in part. x x x.

This construction would be more in consonance with the rule of statutory construction that the parts of a statute must be read together in such a manner as to give effect to all of them and that such parts shall not be construed as contradicting each other. x x x laws are given a reasonable construction such that apparently conflicting provisions are allowed to stand and given effect by reconciling them, reference being had to the moving spirit behind the enactment of the statute.3

Neither can the Court give credence to petitioners’ contentions that the subject ordinance was not published nor posted in accordance with the provisions of the LGC.4 It is noteworthy that petitioners’ own evidence reveals that a public hearing5 was conducted prior to the promulgation of the subject ordinance. Moreover, other than their bare allegations, petitioners failed to present any evidence to show that no publication or posting of the subject ordinance was made. In contrast, Azcuna had testified that they have complied with the publication and posting requirements.6 While it is true that he likewise failed to submit any other evidence thereon, still, in accordance with the presumption of validity in favor of an ordinance, its constitutionality or legality should be upheld in the absence of any controverting evidence that the procedure prescribed by law was not observed in its enactment. Likewise, petitioners had the burden of proving their own allegation, which they, however, failed to do. In the similar case of Figuerres v. CA,7 citing United States v. Cristobal,8 the Court upheld the presumptive validity of the ordinance therein despite the lack of controverting evidence on the part of the local government to show that public hearings were conducted in light of: (a) the oppositor’s equal lack of controverting evidence to demonstrate the local government’s non-compliance with the said public hearing; and (b) the fact that the local government’s non-compliance was a negative allegation essential to the oppositor’s cause of action:

However, it is noteworthy that apart from her bare assertions, petitioner Figuerres has not presented any evidence to show that no public hearings were conducted prior to the enactment of the ordinances in question. On the other hand, the Municipality of Mandaluyong claims that public hearings were indeed conducted before the subject ordinances were adopted, although it likewise failed to submit any evidence to establish this allegation. However, in accordance with the presumption of validity in favor of an ordinance, their constitutionality or legality should be upheld in the absence of evidence showing that the procedure prescribed by law was not observed in their enactment. In an analogous case, United States v. Cristobal, it was alleged that the ordinance making it a crime for anyone to obstruct waterways had not been submitted by the provincial board as required by §§2232-2233 of the Administrative Code. In rejecting this contention, the Court held:

From the judgment of the Court of First Instance the defendant appealed to this court upon the theory that the ordinance in question was adopted without authority on the part of the municipality and was therefore unconstitutional. The appellant argues that there was no proof adduced during the trial of the cause showing that said ordinance had been approved by the provincial board. Considering the provisions of law that it is the duty of the provincial board to approve or disapprove ordinances adopted by the municipal councils of the different


municipalities, we will assume, in the absence of proof to the contrary, that the law has been complied with. We have a right to assume that officials have done that which the law requires them to do, in the absence of positive proof to the contrary.

Furthermore, the lack of a public hearing is a negative allegation essential to petitioner’s cause of action in the present case. Hence, as petitioner is the party asserting it, she has the burden of proof. Since petitioner failed to rebut the presumption of validity in favor of the subject ordinances and to discharge the burden of proving that no public hearings were conducted prior to the enactment thereof, we are constrained to uphold their constitutionality or legality.9 (Emphases supplied, citation omitted)

All told, the Court finds no reversible error committed by the CA in upholding the validity of the subject ordinance.

In any event, petitioners have not shown any valid title10 to the property in dispute to be entitled to its possession. Besides, the RTC’s order directing the removal of the structures built by petitioners on Capayas Island without building permits was not appealed. As such, the same should now be deemed as final and conclusive upon them.

WHEREFORE, the petition is DENIED. The Decision dated September 30, 2008 and Resolution dated March 9, 2009 of the Court of Appeals in CA-G.R. CV No. 00284-MIN are hereby AFFIRMED.


MICHAEL SEBASTIAN, PETITIONER, VS. ANNABEL LAGMAY NG, REPRESENTED BY HER ATTORNEY-IN-FACT, ANGELITA LAGMAY, RESPONDENT

GR NO. 164594 April 22, 2015

FACTS OF THE CASE:

When Michael (Sebastian) and Annable (Lagmay) were still sweethearts, Annabel sent the amount of P350,000.00 as her share in their joint investment for the purchase of a truck. After their relationship ended, however, Michael refused to return the money, hence Angelita, Annable’s mother, filed a complaint belore the Bangay Justice of Siclong, Laur, Nueva Ecija. The parties entered into an agreement, evidenced by a document identified as “kasunduan”, whereby Michael agreed to pay the amount of P250,000.00 on different dates. When the “kasunduan” was not honored by Michael, and alleging that the “kasunduan” was not repudiated within 10 days, Angelita brought the matter back to the barangay, which failed to enforce the judgment but issued a Certificate To File Action. One and a half year after the execution of the Kasunduan, Angelita filed before the MCTC a Motion for Execution of the Kasunduan. Alleging violation of Sec. 15, Rule 13 of the Rules of Court, Michael moved for dismissal of the action, but the MCTC decided against him, and rendered a decision in favour of Angelita. Michael appealed to the Regional Trial Court, but the RTC initially affirmed the MCTC decision. In his motion for reconsideration, Michael argued that an amicable settlement before the barangay can be enforced by the Lupon within six months, but after the lapse of six months it should be thru an ordinary civi action before the MTC or MCTC, not a mere motion for execution; he assails the lack of jurisdiction of the MCTC over the case as the amount of the claim (P250,000.00) exceeded the MCTC’s jurisdiction (P200,000.00. The RTC granted his motion for reconsideration and set aside the MCTC decision for lack of jurisdiction. Aggrieved, Angelita filed a petition for review with the CA, which granted it, holding that the MCTC/MTC is the “appropriate trial court” referred to in Section 2, Rule VII of the Implementing Rules of R.A. No. 7160 hence it has jurisdiction to enforce the judgment, regardless of the amount. Michael’s failure to repudiate the “kasunduan” in accordance with the Implementing Rules of RA 7160 rendered it final. Michael thus elevated the case to the Supreme Court.

ISSUE:

Whether or not the MCTC has the authority and jurisdiction to execute the compromise agreement, regardless of the amount.



We deny the petition.

A perusal of the body of the motion for execution shows that it is actually in the nature of an action for execution; hence, it was a proper remedy;

We note at the outset that Michael raised – in his brief before the C A – the issue of wrong remedy. He alleged that Angelita’s recourse should have been to file a civil action, not a mere motion for execution, in a regular court. However, the CA failed to address this issue and only ruled on the issues of the kasunduan‘s irregularities and the MCTC’s jurisdiction.

A simple reading of Section 417 of the Local Government Code readily discloses the two-tiered mode of enforcement of an amicable settlement. The provision reads:

Section 417. Execution. – The amicable settlement or arbitration award may be enforced by execution by the lupon within six (6) months from the date of the settlement. After the lapse of such time, the settlement may be enforced by action in the appropriate city or municipal court. [Emphasis ours.]

Under this provision, an amicable settlement or arbitration award that is not repudiated within a period often (10) days from the settlement may be enforced by: first, execution by the Lupon within six (6) months from the date of the settlement; or second, by an action in the appropriate city or municipal trial court if more than six (6) months from the date of settlement has already elapsed.

Under the first mode of enforcement, the execution of an amicable settlement could be done on mere motion of the party entitled thereto before the Punong Barangay.1 The proceedings in this case are summary in nature and are governed by the Local Government Code and the Katarungang Pambarangay Implementing Rules and Regulations.

The second mode of enforcement, on the other hand, is judicial in nature and could only be resorted to through the institution of an action in a regular form before the proper City/Municipal Trial Court. The proceedings shall be governed by the provisions of the Rules of Court.

Indisputably, Angelita chose to enforce the kasunduan under the second mode and filed a motion for execution, which was docketed as Special Proceedings No. 45-99. The question for our resolution is: Whether the MCTC, through Angelita’s motion for execution, is expressly authorized to enforce the kasunduan under Section 417 of the Local Government Code?

The Court rules in the affirmative.

It is undisputed that what Angelita filed before the MCTC was captioned “motion for execution,” rather than a petition/complaint for execution.

A perusal of the motion for execution, however, shows that it contains the material requirements of an initiatory action.

First, the motion is sufficient in form3 and substance.4 It is complete with allegations of the ultimate facts constituting the cause of action; the names and residences of the plaintiff and


the defendant; it contains the prayer for the MCTC to order the execution of the kasunduan; and there was also a verification and certification against forum shopping.

Furthermore, attached to the motion are: 1) the authenticated special power of attorney of Annabel, authorizing Angelita to file the present action on her behalf; and 2) the copy of the kasunduan whose contents were quoted in the body of the motion for execution.

It is well-settled that what are controlling in determining the nature of the pleading are the allegations in the body and not the caption.

Thus, the motion for execution that Angelita filed was intended to be an initiatory pleading or an original action that is compliant with the requirement under Section 3, Rule 6 of the Rules of Court that the complaint should allege the plaintiffs cause of action and the names and residences of the plaintiff and the defendant.

Angelita’s motion could therefore be treated as an original action, and not merely as a motion/special proceeding. For this reason, Annabel has filed the proper remedy prescribed under Section 417 of the Local Government Code.

However, Angelita should pay the proper docket fees corresponding to the filing of an action for execution. The docket fees shall be computed by the Clerk of Court of the MCTC, with due consideration, of course, of what Angelita had already paid when her motion for execution was docketed as a special proceeding.

The kasunduan has the force and effect of a final judgment.

Under Section 416 of the Local Government Code, the amicable settlement and arbitration award shall have the force and effect of a final judgment of a court upon the expiration often (10) days from the date of its execution, unless the settlement or award has been repudiated or a petition to nullify the award has been filed before the proper city or municipal court.

Moreover, Section 14, Rule VI of the Katarungang Pambarangay Implementing Rules states that the party’s failure to repudiate the settlement within the period often (10) days shall be deemed a waiver of the right to challenge the settlement on the ground that his/her consent was vitiated by fraud, violence or intimidation.

In the present case, the records reveal that Michael never repudiated the kasunduan within the period prescribed by the law. Hence, the CA correctly ruled that the kasunduan has the force and effect of a final judgment that is ripe for execution.

Furthermore, the irregularities in the kasunduan’s execution, and the claim of forgery are deemed waived since Michael never raised these defenses in accordance with the procedure prescribed under the Local Government Code. Thus, we see no reason to discuss these issues in the present case.

The MCTC has the authority and jurisdiction to enforce the kasunduan regardless of the amount involved.

The Court also finds that the CA correctly upheld the MCTC’s jurisdiction to enforce any settlement or arbitration award issued by the Lupon.


We again draw attention to the provision of Section 417 of the Local Government Code that after the lapse of the six (6) month period from the date of the settlement, the agreement may be enforced by action in the appropriate city or municipal court.

The law, as written, unequivocally speaks of the “appropriate city or municipal court” as the forum for the execution of the settlement or arbitration award issued by the Lupon. Notably, in expressly conferring authority over these courts, Section 417 made no distinction with respect to the amount involved or the nature of the issue involved. Thus, there can be no question that the law’s intendment was to grant jurisdiction over the enforcement of settlement/arbitration awards to the city or municipal courts regardless of the amount. A basic principle of interpretation is that words must be given their literal meaning and applied without attempted interpretation where the words of a statute are clear,’ plain and free from ambiguity.6

WHEREFORE, premises considered, we hereby DENY the petitioner’s petition for review on certiorari, and AFFIRM the March 31, 2004 Decision of the Court of Appeals in CA-G.R. SP No. 65450.

Angelita Lagmay is ORDERED to pay the proper docket fees to be computed by the Clerk of Court of the Municipal Circuit Trial Court of Laur and Gabaldon, Nueva Ecija, with due consideration of what she had paid when her motion for execution was docketed as a special proceeding.

Documents

Cases Digests on Local Government Code