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Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. L-64818 May 13, 1991 REPUBLIC OF THE PHILIPPINES, petitioner, vs. MARIA P. LEE and INTERMEDIATE APPELLATE COURT, respondents. Pedro M. Surdilla for private respondent.

FERNAN, C.J.:p In a land registration case, does the bare statement of the applicant that the land applied for has been in the possession of her predecessors-in- interest for more than 20 years constitute the "well-nigh incontrovertible" and "conclusive" evidence required in proceedings of this nature? This is the issue to be resolved in the instant petition for review. On June 29, 1976, respondent Maria P. Lee filed before the then Court of First Instance (now Regional Trial Court) of Pangasinan, an application 1 for registration in her favor of a parcel of land consisting of 6,843 square meters, more or less, located at Mangaldan, Pangasinan. The Director of Lands, in representation of the Republic of the Philippines, filed an opposition, alleging that neither the applicant nor her predecessors-in-interest have acquired the land under any of the Spanish titles or any other recognized mode for the acquisition of title; that neither she nor her predecessors-in-interest have been in open, continuous, exclusive and notorious possession of the land in concept of owner at least thirty (30) years immediately preceding the filing of the application; and that the land is a portion of the public domain belonging to the Republic of the Philippines. 2 After trial, the Court of First Instance 3 rendered judgment on December 29, 1976, disposing as follows: WHEREFORE, pursuant to the Land Registration Law, Act No. 496, as amended by Republic Acts Nos. 1942 and 6236, the Court hereby confirms the title of the applicants over the parcel of land described in Plan Psu-251940 and hereby adjudicates the same in the name of the herein applicants, spouses Stephen Lee and Maria P. Lee, both of legal age, Filipino citizens and residents of Dagupan City, Philippines, as their conjugal property. Once this decision becomes final, let the corresponding decree and title issue therefor.

SO ORDERED. 4
The Republic of the Philippines appealed to the then Intermediate Appellate Court (now Court of Appeals), which however affirmed the lower court's decision in toto on July 29, 1983. 5 Hence, this petition based on the following grounds: 6 The Intermediate Appellate Court erred:

A. IN NOT FINDING THAT THE RESPONDENT MARIA P. LEE HAS FAILED TO ESTABLISH BY CONCLUSIVE EVIDENCE HER FEE SIMPLE TITLE OR IMPERFECT TITLE WHICH ENTITLES HER TO REGISTRATION EITHER UNDER ACT NO. 496, AS AMENDED (LAND REGISTRATION ACT) OR SECTION 48 (B), C. A. NO. 141, AS AMENDED (PUBLIC LAND ACT); B. IN GIVING WEIGHT AND CREDENCE TO THE CLEARLY INCOMPETENT, SELFSERVING AND UNRESPONSIVE TESTIMONY OF RESPONDENT THAT THE SPOUSES URBANO DIAZ AND BERNARDA VINLUAN HAD BEEN IN POSSESSION OF THE PROPERTY FOR MORE THAN 20 YEARS LEADING TO REGISTRATION, THEREBY DEPRIVING THE STATE OF ITS PROPERTY WITHOUT DUE PROCESS; C. IN ORDERING REGISTRATION SIMPLY BECAUSE PETITIONER FAILED TO ADDUCE EVIDENCE TO REBUT RESPONDENT'S EVIDENCE, WHICH, HOWEVER, STANDING ALONE, DOES NOT MEET THE QUANTUM OF PROOFWHICH MUST BE CONCLUSIVEREQUIRED FOR REGISTRATION; D. IN NOT FINDING THAT RESPONDENT HAS MISERABLY FAILED TO OVERTHROW THE PRESCRIPTION THAT THE LAND IS PUBLIC LAND BELONGING TO THE STATE. Private respondent, on the other hand, contends that she was able to prove her title to the land in question through documentary evidence consisting of Deeds of Sale and tax declarations and receipts as well as her testimony that her predecessors-in-interest had been in possession of the land in question for more than 20 years; that said testimony, which petitioner characterizes as superfluous and uncalled for, deserves weight and credence considering its spontaneity; that in any event, the attending fiscal should have cross-examined her on that point to test her credibility; and that, the reason said fiscal failed to do so is that the latter is personally aware of facts showing that the land being applied for is a private land. 7 We find for petitioner Republic of the Philippines. The evidence adduced in the trial court showed that the land in question was owned by the spouses Urbano Diaz and Bernarda Vinluan, who on August 11, 1960, sold separate half portions thereof to Mrs. Laureana Mataban and Mr. Sixto Espiritu. On March 18, 1963, and July 30, 1963, respectively, Mrs. Mataban and Mr. Espiritu sold their half portions to private respondent Maria P. Lee. Private respondent had the property recorded for taxation purposes in her name and that of her husband Stephen Lee, paying taxes thereon on March 25, 1975 and March 9, 1976 for the same years. At the time of the filing of the application for registration on June 29, 1976, private respondent had been in possession of the subject area for about thirteen (13) years. She, however, sought to tack to her possession that of her predecessors-in-interest in order to comply with the requirement of Section 48 (b) of commonwealth Act No. 141, as amended, to wit: (b) Those who by themselves or through their predecessors in interest have been in open, continuous, exclusive and notorious possession and occupation of agricultural lands of the public domain. under a bona fide claim of acquisition of ownership, since June 12, 1945, or earlier, immediately preceding the filing of the applications for confirmation of title ," except when prevented by war or force majeure. These shall be conclusively presumed to have performed all the conditions essential to a Government grant and shall be entitled to a certificate of title under the provisions of this Chapter. Private respondent's testimony on her predecessors-in-interest's possession is contained in a one-page declaration given before a commissioner on December 22, 1976. It reads in full as follows: 8 Commissioner: Atty. Surdilla, you can now present your evidence. Atty. Surdilla: I am presenting the applicant, your Honor.

Commissioner: Swearing under oath the applicant. Atty. Surdilla: Q Please state your name and other personal circumstances. A Maria P. Lee, of legal age, Filipino citizen, married to Stephen Lee, proprietor, and resident of Dagupan City. Q Are you the applicant in this case now? A Yes, sir, including that of my husband, Stephen Lee. Q From whom did you acquire said property, subject of registration now? A From Mr. Sixto Espiritu and Mrs. Laureana T. Mataban, sir. Q Do you have evidence of such acquisition of yours over said property? A Yes, sir. Q Showing to you these documents styled as Deed of Absolute Sale dated March 18, 1963 and also Deed of Absolute Sale dated July 30, 1963, what can you say to them? A The deed of sale dated March 18, 1963 is the conveyance to us by Mrs. Laureana T. Mataban over the 1/2 portion of the property and the deed of sale dated July 30, 1963 likewise refers to sale of the 1/2 portion of the property by Sixto Espiritu to us, sir. Atty. Surdilla: At this juncture, may I pray that said Deeds of Absolute Sale adverted to above be marked as Exhibits "I" and "J", your Honor. Commissioner: Please mark them accordingly. Q Do you know from whom did Mr. Sixto Espiritu and Mrs. Laureana Mataban (your vendors) acquired likewise the property sought by you to be registered? A Yes, sir. They purchased it from the spouses Urbano Diaz and Bernarda Vinluan who possessed the same for more than 20 years. Q Showing to you this document styled as Deed of Absolute Sale, dated August 11, 1970, is this the sale adverted or referred by you? A Yes, sir. Atty. Surdilla: At this juncture, may I pray that said deed be marked as Exhibit "H", your Honor. Commissioner: Please mark it. Q Who is in possession of the property now? What is the nature thereof?

A I and my husband are in possession of the property, which possession tacked to that of our predecessors-in-interest is adverse, continuous, open, public, peaceful and in concept of owner, your Honor. Q Whose name/names is the property declared for taxation purposes? A We spouses Stephen Lee and Maria P. Lee, sir. Atty. Surdilla: At this juncture, may I pray, sir, that Tax Declaration Nos. 22253 and 24126, be marked as Exhibits "K" and "K-1", respectively. Commissioner: Please mark them accordingly. Q Who has been paying taxes over the property? A We the spouses Stephen Lee and myself, sir. Atty. Surdilla: At this juncture, may I pray that Official Receipts Nos. H6048922 and G-9581024, dated March 9, 1976 and March 25, 1975 be marked as Exhibits "L" and 'L-1",' respectively. Commissioner: Please mark them accordingly. Q Is the property ever mortgaged or encumbered in the bank or private person/persons? A No sir. It is free from liens and encumbrances. That's all, your Honor. The most basic rule in land registration cases is that "no person is entitled to have land registered under the Cadastral or Torrens system unless he is the owner in fee simple of the same, even though there is no opposition presented against such registration by third persons. . . . In order that the petitioner for the registration of his land shag be permitted to have the same registered, and to have the benefit resulting from the certificate of title, finally, issued, the burden is upon him to show that he is the real and absolute owner, in fee simple." 9 Equally basic is the rule that no public land can be acquired by private persons without any grant, express or implied, from government. A grant is conclusively presumed by law when the claimant, by himself or through his predecessors-in-interest, has occupied the land openly, continuously, exclusively, and under a claim of title since July 26, 1894 10 or prior thereto. 11 The doctrine upon which these rules are based is that all lands that were not acquired from the government, either by purchase or by grant, belong to the public domain. As enunciated in the case of Santiago vs. de los Santos: 12 . . . Both under the 1935 and the present Constitutions, the conservation no less than the utilization of the natural resources is ordained. There would be a failure to abide by its command if the judiciary does not scrutinize with care applications to private ownership of real estate. To be granted, they must be grounded in well-nigh incontrovertible evidence. Where, as in this case, no such proof would be forthcoming, there is no justification for viewing such claim with favor. It is a basic assumption of our polity that lands of whatever classification belong to the state. Unless alienated in accordance with law, it retains its rights over the same as dominus . . .

Based on the foregoing, it is incumbent upon private respondent to prove that the alleged twenty year or more possession of the spouses Urbano Diaz and Bernarda Vinluan which supposedly formed part of the thirty (30) year period prior to the filing of the application, was open, continuous, exclusive, notorious and in concept of owners. This burden, private respondent failed to discharge to the satisfaction of the Court. The bare assertion that the spouses Urbano Diaz and Bernarda Vinluan had been in possession of the property for more than twenty (20) years found in private respondent's declaration is hardly the "well-nigh incontrovertible" evidence required in cases of this nature. Private respondent should have presented specific facts that would have shown the nature of such possession. The phrase "adverse, continuous, open, public, peaceful and in concept of owner" by which she described her own possession in relation to that of her predecessors-in-interest are mere conclusions of law which require factual support and substantiation. That the representing fiscal did not cross-examine her on this point does not help her cause because the burden is upon her to prove by clear, positive and absolute evidence that her predecessors' possession was indeed adverse, continuous, open, public, peaceful and in concept of owner. Her bare allegation, without more, did not constitute such preponderant evidence that would shift the burden of proof to the oppositor. Neither does the supposition that the fiscal had knowledge of facts showing that the land applied for is private land helpful to private respondent. Suffice it to say that it is not the fiscal, but the court which should be convinced, by competent proof, of private respondent's registerable right over the subject parcel of land. Private respondent having failed to prove by convincing, positive proof that she has complied with the requirements of the law for confirmation of her title to the land applied for, it was grave error on the part of the lower court to have granted her application. WHEREFORE, the instant petition is hereby GRANTED. The decision appealed from is SET ASIDE. No pronouncement as to costs. SO ORDERED. Gutierrez, Jr., Feliciano and Davide, Jr., JJ., concur. Bidin, J., took no part.

Footnotes 1 Annex "A", Petition, pp. 46-49, Rollo. 2 Annex "B", Petition, pp. 50- 51, Rollo. 3 Per Judge Modesto S. Bascos. 4 p. 55, Rollo. 5 The decision was penned by Associate Justice Porfirio V. Sison, and concurred in by then IAC now Supreme Court Associate Justice Abdulwahid A. Bidin, Associate Justices Marcelino R. Veloso and Desiderio P. Jurado, pp. 56-59, Rollo. 6 pp. 102-103, Rollo. 7 pp. 144-149, Rollo. 8 pp. 25-28, Rollo.

9 Director of Lands vs. Agustin, 42 Phil. 227, citing Maloles and Malvar vs. Director of Lands, 25 Phil. 548; De los Reyes vs. Paterno, 34 Phil. 420, 424; Roman Catholic Bishop of Lipa vs. Municipality of Taal, 38 Phil. 367, 376. 10 Now June 12, 1945, as amended by P.D. 1073. 11 Padilla vs. Reyes & Director of Lands, 60 Phil. 967, citing Ongsiaco vs. Magsilang, 50 Phil. 380. 12 G.R. No. L-20241, November 22, 1974, 61 SCRA 146.

The underlying principle is that all lands that were not acquired from the government, either by purchase or by grant, belong to the state as part of the public domain. As enunciated inRepublic vs. Lee:"
[17]

"x x x Both under the 1935 and the present Constitutions, the conservation no less than the utilization of the natural resources is ordained. There would be a failure to abide by its command if the judiciary does not scrutinize with care applications to private ownership of real estate. To be granted, they must be grounded in well-nigh incontrovertible evidence. Where, as in this case, no such proof would be forthcoming, there is no justification for viewing such claim with favor. It is a basic assumption of our polity that lands of whatever classification belong to the state. Unless alienated in accordance with law, it retains its right over the same as dominus. x x x"
[18]

EN BANC

[G.R. No. 110249. August 21, 1997]

ALFREDO TANO, BALDOMERO TANO, DANILO TANO, ROMUALDO TANO, TEOCENES MIDELLO, ANGEL DE MESA, EULOGIO TREMOCHA, FELIPE ONGONION, JR., ANDRES LINIJAN, ROBERT LIM, VIRGINIA LIM, FELIMON DE MESA, GENEROSO ARAGON, TEODORICO ANDRE, ROMULO DEL ROSARIO,

CHOLITO ANDRE, ERICK MONTANO, ANDRES OLIVA, VITTORIO SALVADOR, LEOPOLDO ARAGON, RAFAEL RIBA, ALEJANDRO LEONILA, JOSE DAMACINTO, RAMIRO MANAEG, RUBEN MARGATE, ROBERTO REYES, DANILO PANGARUTAN, NOE GOLPAN,ESTANISLAO ROMERO, NICANOR DOMINGO, ROLDAN TABANG, PANGANIBAN, ADRIANO TABANG, FREDDIE SACAMAY, MIGUEL TRIMOCHA, PACENCIO LABABIT, PABLO H. OMPAD, CELESTINO A. ABANO, ALLAN ALMODAL, BILLY D. BARTOLAY, ALBINO D. LIQUE, MELCHOR J. LAYSON, MELANI AMANTE, CLARO E. YATOC, MERGELDO B. BALDEO, EDGAR M. ALMASET A., JOSELITO MANAEG, LIBERATO ANDRADA, JR., ROBERTO BERRY, RONALD VILLANUEVA, EDUARDO VALMORIA, WILDREDO MENDOZA, NAPOLEON BABANGA, ROBERTO TADEPA, RUBEN ASINGUA, SILVERIO GABO, JERRY ROMERO, DAVID PANGAGARUTAN, DANIEL PANGGARUTAN, ROMEO AGAWIN, FERNANDO EQUIZ, DITO LEQUIZ, RONILO ODERABLE, BENEDICTO TORRES, ROSITO A. VALDEZ, CRESENCIO A. SAYANG, NICOMEDES S. ACOSTA, ERENEO A. SEGARINO, JR., WILDREDO A. RAUTO, DIOSDADO A. ACOSTA, BONIFACIO G. SISMO, TACIO ALUBA, DANIEL B. BATERZAL, ELISEO YBAEZ, DIOSDADO E. HANCHIC, EDDIE ESCALICAS, ELEAZAR B. BATERZAL, DOMINADOR HALICHIC, ROOSEVELT RISMOAN, ROBERT C. MERCADER, TIRSO ARESGADO, DANIEL CHAVEZ, DANILO CHAVEZ, VICTOR VILLAROEL, ERNESTO C. YABANEZ, ARMANDO T. SANTILLAN, RUDY S. SANTILLAN, JODJEN ILUSTRISIMO, NESTOR SALANGRON, ALBERTO SALANGRON, ROGER L. ROXAS, FRANCISCO T. ANTICANO, PASTOR SALANGRON, BIENVENIDO SANTILLAN, GILBUENA LADDY, FIDEL BENJAMIN JOVELITO BELGANO, HONEY PARIOL, ANTONIO SALANGRON, NICASIO SALANGRON, & AIRLINE SHIPPERS ASSOCIATION OF PALAWAN, petitioners, vs. GOV. SALVADOR P. SOCRATES, MEMBERS OF SANGGUNIAN PANLALAWIGAN OF PALAWAN, namely, VICEGOVERNOR JOEL T. REYES, JOSE D. ZABALA, ROSALINO R. ACOSTA, JOSELITO A. CADLAON, ANDRES R. BAACO, NELSON P. PENEYRA, CIPRIANO C. BARROMA, CLARO E. ORDINARIO, ERNESTO A. LLACUN, RODOLFO C. FLORDELIZA, GILBERT S. BAACO, WINSTON G. ARZAGA, NAPOLEON F. ORDONEZ and GIL P. ACOSTA, CITY MAYOR EDWARD

HAGEDORN, MEMBERS OF SANGGUNIANG PANLUNGSOD NG PUERTO PRINCESA, ALL MEMBERS OF BANTAY DAGAT, MEMBERS OF PHILIPPINE NATIONAL POLICE OF PALAWAN, PROVINCIAL AND CITY PROSECUTORS OF PALAWAN and PUERTO PRINCESA CITY, and ALL JUDGES OF PALAWAN, REGIONAL, MUNICIPAL AND METROPOLITAN, respondents. DECISION
DAVIDE, JR., J.:

Petitioners caption their petition as one for Certiorari, Injunction With Preliminary Mandatory Injunction,with Prayer for Temporary Restraining Order and pray that this Court: (1) declare as unconstitutional: (a) Ordinance No. 15-92, dated 15 December 1992, of the Sangguniang Panlungsod of Puerto Princesa; (b) Office Order No. 23, Series of 1993, dated 22 January 1993, issued by Acting City Mayor Amado L. Lucero of Puerto Princesa City; and (c) Resolution No. 33, Ordinance No. 2, Series of 1993, dated 19 February 1993, of theSangguniang Panlalawigan of Palawan; (2) enjoin the enforcement thereof; and (3) restrain respondents Provincial and City Prosecutors of Palawan and Puerto Princesa City and Judges of Regional Trial Courts, Metropolitan Trial Courts and Municipal Circuit Trial Courts in Palawan from assuming jurisdiction over and hearing cases concerning the violation of the Ordinances and of the Office Order.
[1]

More appropriately, the petition is, and shall be treated as, a special civil action for certiorari and prohibition. The following is petitioners summary of the factual antecedents giving rise to the petition: 1. On December 15, 1992, the Sangguniang Panlungsod ng Puerto Princesa City enacted Ordinance No. 15-92 which took effect on January 1, 1993 entitled: AN ORDINANCE BANNING THE SHIPMENT OF ALL LIVE FISH AND LOBSTER OUTSIDE PUERTO PRINCESA CITY FROM JANUARY 1, 1993 TO JANUARY 1, 1998 AND PROVIDING EXEMPTIONS, PENALTIES AND FOR OTHER PURPOSES THEREOF, the full text of which reads as follows: Section 1. Title of the Ordinance. - This Ordinance is entitled: AN ORDINANCE BANNING THE SHIPMENT OF ALL LIVE FISH AND LOBSTER OUTSIDE PUERTO PRINCESA CITY FROM JANUARY 1, 1993 TO JANUARY 1, 1998 AND PROVIDING EXEMPTIONS, PENALTIES AND FOR OTHER PURPOSES THEREOF.

Section 2. Purpose, Scope and Coverage. - To effectively free our City Sea Waters from Cyanide and other Obnoxious substance, and shall cover all persons and/or entities operating within and outside the City of Puerto Princesa who is are [sic] directly or indirectly in the business or shipment of live fish and lobster outside the City. Section 3. Definition of terms. - For purpose of this Ordinance the following are hereby defined: A. SEA BASS - A kind of fish under the family of Centropomidae, better known as APAHAP; B. CATFISH - A kind of fish under the family of Plotosidae, better known as HITOHITO; C. MUDFISH - A kind of fish under the family of Orphicaphalisae better known as DALAG D. ALL LIVE FISH - All alive, breathing not necessarily moving of all specie[s] use for food and for aquarium purposes. E. LIVE LOBSTER - Several relatively, large marine crustaceans of the genus Homarus that are alive and breathing not necessarily moving. Section 4. It shall be unlawful [for] any person or any business enterprise or company to ship out from Puerto Princesa City to any point of destination either via aircraft or seacraft of any live fish and lobster except SEA BASS, CATFISH, MUDFISH, AND MILKFISH FRIES. Section 5. Penalty Clause. - Any person/s and or business entity violating this Ordinance shall be penalized with a fine of not more than P5,000.00 or imprisonment of not more than twelve (12) months, cancellation of their permit to do business in the City of Puerto Princesa or all of the herein stated penalties, upon the discretion of the court. Section 6. If the owner and/or operator of the establishment found vilating the provisions of this ordinance is a corporation or a partnership, the penalty prescribed in Section 5 hereof shall be imposed upon its president and/or General Manager or Managing Partner and/or Manager, as the case maybe [sic]. Section 7. Any existing ordinance or any provision of any ordinance inconsistent to [sic] this ordinance is deemed repealed.

Section 8. This Ordinance shall take effect on January 1, 1993. SO ORDAINED. xxx 2. To implement said city ordinance, then Acting City Mayor Amado L. Lucero issued Office Order No. 23, Series of 1993 dated January 22, 1993 which reads as follows: In the interest of public service and for purposes of City Ordinance No. PD426-1474, otherwise known as AN ORDINANCE REQUIRING ANY PERSON ENGAGED OR INTENDING TO ENGAGE IN ANY BUSINESS, TRADE, OCCUPATION, CALLING OR PROFESSION OR HAVING IN HIS POSSESSION ANY OF THE ARTICLES FOR WHICH A PERMIT IS REQUIRED TO BE HAD, TO OBTAIN FIRST A MAYORS PERMIT and City Ordinance No. 15-92, AN ORDINANCE BANNING THE SHIPMENT OF ALL LIVE FISH AND LOBSTER OUTSIDE PUERTO PRINCESA CITY FROM JANUARY 1, 1993 TO JANUARY 1, 1998, you are hereby authorized and directed to check or conduct necessary inspections on cargoes containing live fish and lobster being shipped out from the Puerto Princesa Airport, Puerto Princesa Wharf or at any port within the jurisdiction of the City to any point of destinations [sic] either via aircraft or seacraft. The purpose of the inspection is to ascertain whether the shipper possessed the required Mayors Permit issued by this Office and the shipment is covered by invoice or clearance issued by the local office of the Bureau of Fisheries and Aquatic Resources and as to compliance with all other existing rules and regulations on the matter. Any cargo containing live fish and lobster without the required documents as stated herein must be held for proper disposition. In the pursuit of this Order, you are hereby authorized to coordinate with the PAL Manager, the PPA Manager, the local PNP Station and other offices concerned for the needed support and cooperation. Further, that the usual courtesy and diplomacy must be observed at all times in the conduct of the inspection. Please be guided accordingly. xxx

3. On February 19, 1993, the Sangguniang Panlalawigan, Provincial Government of Palawan enacted Resolution No. 33 entitled: A RESOLUTION PROHIBITING THE CATCHING, GATHERING, POSSESSING, BUYING, SELLING AND SHIPMENT OF LIVE MARINE CORAL DWELLING AQUATIC ORGANISMS, TO WIT: FAMILY: SCARIDAE (MAMENG), EPINE PHELUS FASCIATUS (SUNO). CROMILEPTES ALTIVELIS (PANTHER OR SENORITA), LOBSTER BELOW 200 GRAMS AND SPAWNING, TRADACNA GIGAS (TAKLOBO), PINCTADA MARGARITEFERA (MOTHER PEARL, OYSTERS, GIANT CLAMS AND OTHER SPECIES), PENAEUS MONODON (TIGER PRAWN-BREEDER SIZE OR MOTHER), EPINEPHELUS SUILLUS (LOBA OR GREEN GROUPER) AND FAMILY: BALISTIDAE (TROPICAL AQUARIUM FISHES) FOR A PERIOD FIVE (5) YEARS IN AND COMING FROM PALAWAN WATERS, the full text of which reads as follows: WHEREAS, scientific and factual researches [sic] and studies disclose that only five (5) percent of the corals of our province remain to be in excellent condition as [a] habitat of marine coral dwelling aquatic organisms; WHEREAS, it cannot be gainsaid that the destruction and devastation of the corals of our province were principally due to illegal fishing activities like dynamite fishing, sodium cyanide fishing, use of other obnoxious substances and other related activities; WHEREAS, there is an imperative and urgent need to protect and preserve the existence of the remaining excellent corals and allow the devastated ones to reinvigorate and regenerate themselves into vitality within the span of five (5) years; WHEREAS, Sec. 468, Par. 1, Sub-Par. VI of the [sic] R.A. 7160 otherwise known as the Local Government Code of 1991 empowers the Sangguniang Panlalawigan to protect the environment and impose appropriate penalties [upon] acts which endanger the environment such as dynamite fishing and other forms of destructive fishing, among others. NOW, THEREFORE, on motion by Kagawad Nelson P. Peneyra and upon unanimous decision of all the members present; Be it resolved as it is hereby resolved, to approve Resolution No. 33, Series of 1993 of the Sangguniang Panlalawigan and to enact Ordinance No. 2 for the purpose, to wit: ORDINANCE NO. 2 Series of 1993

BE IT ORDAINED BY THE SANGGUNIANG PANLALAWIGAN IN SESSION ASSEMBLED: Section 1. TITLE - This Ordinance shall be known as an Ordinance Prohibiting the catching, gathering, possessing, buying, selling and shipment of live marine coral dwelling aquatic organisms, to wit: 1. Family: Scaridae (Mameng), 2. Epinephelus Fasciatus (Suno), 3. Cromileptes altivelis (Panther or Senorita), lobster below 200 grams and spawning), 4. Tridacna Gigas (Taklobo), 5. Pinctada Margaretefera (Mother Pearl, Oysters, Giant Clams and other species), 6. Penaeus Monodon (Tiger Prawn-breeder size or mother), 7. Epinephelus Suillus (Loba or Green Grouper) and 8. Family: Balistidae (Topical Aquarium Fishes) for a period of five (5) years in and coming from Palawan Waters. Section II. PRELIMINARY CONSIDERATIONS 1. Sec. 2-A (Rep. Act 7160). It is hereby declared, the policy of the state that the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self reliant communities and make them more effective partners in the attainment of national goals. Toward this end, the State shall provide for [a] more responsive and accountable local government structure instituted through a system of decentralization whereby local government units shall be given more powers, authority, responsibilities and resources. 2. Sec. 5-A (R.A. 7160). Any provision on a power of [a] local Government Unit shall be liberaly interpreted in its favor, and in case of doubt, any question thereon shall be resolved in favor of devolution of powers and of the lower government units. Any fair and reasonable doubts as to the existence of the power shall be interpreted in favor of the Local Government Unit concerned. 3. Sec. 5-C (R.A. 7160). The general welfare provisions in this Code shall be liberally interpreted to give more powers to local government units in accelerating economic development and upgrading the quality of life for the people in the community. 4. Sec. 16 (R.A. 7160). 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. Section III. DECLARATION OF POLICY. - It is hereby declared to be the policy of the Province of Palawan to protect and conserve the marine resources of Palawan not

only for the greatest good of the majority of the present generation but with [the] proper perspective and consideration of [sic] their prosperity, and to attain this end, the Sangguniang Panlalawigan henceforth declares that is [sic] shall be unlawful for any person or any business entity to engage in catching, gathering, possessing, buying, selling and shipment of live marine coral dwelling aquatic organisms as enumerated in Section 1 hereof in and coming out of Palawan Waters for a period of five (5) years; Section IV. PENALTY CLAUSE. - Any person and/or business entity violating this Ordinance shall be penalized with a fine of not more than Five Thousand Pesos (P5,000.00), Philippine Currency, and/or imprisonment of six (6) months to twelve (12) months and confiscation and forfeiture of paraphernalias [sic] and equipment in favor of the government at the discretion of the Court; Section V. SEPARABILITY CLAUSE. - If for any reason, a Section or provision of this Ordinance shall be held as unconditional [sic] or invalid, it shall not affect the other provisions hereof. Section VI. REPEALING CLAUSE. - Any existing Ordinance or a provision of any ordinance inconsistent herewith is deemed modified, amended or repealed. Section VII. EFFECTIVITY. - This Ordinance shall take effect ten (10) days after its publication. SO ORDAINED. xxx 4. The respondents implemented the said ordinances, Annexes A and C hereof thereby depriving all the fishermen of the whole province of Palawan and the City of Puerto Princesa of their only means of livelihood and the petitioners Airline Shippers Association of Palawan and other marine merchants from performing their lawful occupation and trade; 5. Petitioners Alfredo Tano, Baldomero Tano, Teocenes Midello, Angel de Mesa, Eulogio Tremocha, and Felipe Ongonion, Jr. were even charged criminally under criminal case no. 93-05-C in the 1st Municipal Circuit Trial Court of Cuyo-AgutayaMagsaysay, an original carbon copy of the criminal complaint dated April 12, 1993 is hereto attached as Annex D; while xerox copies are attached as Annex D to the copies of the petition;

6. Petitioners Robert Lim and Virginia Lim, on the other hand, were charged by the respondent PNP with the respondent City Prosecutor of Puerto Princesa City, a xerox copy of the complaint is hereto attached as Annex E; Without seeking redress from the concerned local government units, prosecutors office and courts, petitioners directly invoked our original jurisdiction by filing this petition on 4 June 1993. In sum, petitioners contend that: First, the Ordinances deprived them of due process of law, their livelihood, and unduly restricted them from the practice of their trade, in violation of Section 2, Article XII and Sections 2 and 7 of Article XIII of the 1987 Constitution. Second, Office Order No. 23 contained no regulation nor condition under which the Mayors permit could be granted or denied; in other words, the Mayor had the absolute authority to determine whether or not to issue permit. Third, as Ordinance No. 2 of the Province of Palawan altogether prohibited the catching, gathering, possession, buying, selling and shipping of live marine coral dwelling organisms, without any distinction whether it was caught or gathered through lawful fishing method, the Ordinance took away the right of petitioners-fishermen to earn their livelihood in lawful ways; and insofar as petitioners-members of Airline Shippers Association are concerned, they were unduly prevented from pursuing their vocation and entering into contracts which are proper, necessary, and essential to carry out their business endeavors to a successful conclusion. Finally, as Ordinance No. 2 of the Sangguniang Panlalawigan is null and void, the criminal cases based thereon against petitioners Tano and the others have to be dismissed. In the Resolution of 15 June 1993 we required respondents to comment on the petition, and furnished the Office of the Solicitor General with a copy thereof. In their comment filed on 13 August 1993, public respondents Governor Socrates and Members of the Sangguniang Panlalawigan of Palawan defended the validity of Ordinance No.2, Series of 1993, as a valid exercise of the Provincial Governments power under the general welfare clause (Section 16 of the Local Government Code of 1991 [hereafter, LGC]), and its specific power to protect the environment and impose appropriate penalties for acts which endanger the environment, such as dynamite fishing and other forms of destructive fishing under Section 447 (a) (1) (vi), Section 458 (a) (1) (vi), and Section 468 (a) (1) (vi), of the LGC. They claimed that in the exercise of such

powers, the Province of Palawan had the right and responsibilty to insure that the remaining coral reefs, where fish dwells [sic], within its territory remain healthy for the future generation. The Ordinance, they further asserted, covered only live marine coral dwelling aquatic organisms which were enumerated in the ordinance and excluded other kinds of live marine aquatic organisms not dwelling in coral reefs; besides the prohibition was for only five (5) years to protect and preserve the pristine coral and allow those damaged to regenerate. Aforementioned respondents likewise maintained that there was no violation of due process and equal protection clauses of the Constitution. As to the former, public hearings were conducted before the enactment of the Ordinance which, undoubtedly, had a lawful purpose and employed reasonable means; while as to the latter, a substantial distinction existed between a fisherman who catches live fish with the intention of selling it live, and a fisherman who catches live fish with no intention at all of selling it live, i.e., the former uses sodium cyanide while the latter does not. Further, the Ordinance applied equally to all those belonging to one class. On 25 October 1993 petitioners filed an Urgent Plea for the Immediate Issuance of a Temporary Restraining Order claiming that despite the pendency of this case, Branch 50 of the Regional Trial Court of Palawan was bent on proceeding with Criminal Case No. 11223 against petitioners Danilo Tano, Alfredo Tano, Eulogio Tremocha, Romualdo Tano, Baldomero Tano, Andres Lemihan and Angel de Mesa for violation of Ordinance No. 2 of the Sangguniang Panlalawigan of Palawan. Acting on said plea, we issued on 11 November 1993 a temporary restraining order directing Judge Angel Miclat of said court to cease and desist from proceeding with the arraignment and pretrial of Criminal Case No. 11223. On 12 July 1994, we excused the Office of the Solicitor General from filing a comment, considering that as claimed by said office in its Manifestation of 28 June 1994, respondents were already represented by counsel. The rest of the respondents did not file any comment on the petition. In the resolution of 15 September 1994, we resolved to consider the comment on the petition as the Answer, gave due course to the petition and required the parties to submit their respective memoranda.
[2]

On 22 April 1997 we ordered impleaded as party respondents the Department of Agriculture and the Bureau of Fisheries and Aquatic Resources and required the Office of the Solicitor General to comment on their behalf. But in light of the latters motion of 9 July 1997 for an extension of time to file

the comment which would only result in further delay, we dispensed with said comment. After due deliberation on the pleadings filed, we resolved to dismiss this petition for want of merit, on 22 July 1997, and assigned it to the ponente for the writing of the opinion of the Court.
I

There are actually two sets of petitioners in this case. The first is composed of Alfredo Tano, Baldomero Tano, Danilo Tano, Romualdo Tano, Teocenes Midello, Angel de Mesa, Eulogio Tremocha, Felipe Ongonion, Jr., Andres Linijan, and Felimon de Mesa, who were criminally charged with violating Sangguniang Panlalawigan Resolution No. 33 and Ordinance No. 2, Series of 1993, of the Province of Palawan, in Criminal Case No. 93-05-C of the 1 Municipal Circuit Trial Court (MCTC) of Palawan; and Robert Lim and Virginia Lim who were charged with violating City Ordinance No. 15-92 of Puerto Princesa City and Ordinance No. 2, Series of 1993, of the Province of Palawan before the Office of the City Prosecutor of Puerto Princesa. All of them, with the exception of Teocenes Midello, Felipe Ongonion, Jr., Felimon de Mesa, Robert Lim and Virginia Lim, are likewise the accused in Criminal Case No. 11223 for the violation of Ordinance No. 2 of the Sangguniang Panlalawigan of Palawan, pending before Branch 50 of the Regional Trial Court of Palawan.
st [3] [4] [5]

The second set of petitioners is composed of the rest of the petitioners numbering seventy-seven (77), all of whom, except the Airline Shippers Association of Palawan -- an alleged private association of several marine merchants -- are natural persons who claim to be fishermen. The primary interest of the first set of petitioners is, of course, to prevent the prosecution, trial and determination of the criminal cases until the constitutionality or legality of the Ordinances they allegedly violated shall have been resolved. The second set of petitioners merely claim that they being fishermen or marine merchants, they would be adversely affected by the ordinances. As to the first set of petitioners, this special civil for certiorari must fail on the ground of prematurity amounting to a lack of cause of action. There is no showing that the said petitioners, as the accused in the criminal cases, have filed motions to quash the informations therein and that the same were denied. The ground available for such motions is that the facts charged therein do not constitute an offense because the ordinances in question are unconstitutional. It cannot then be said that the lower courts acted without or in excess of jurisdiction or with grave abuse of discretion to justify recourse to
[6]

the extraordinary remedy of certiorari or prohibition. It must further be stressed that even if the petitioners did file motions to quash, the denial thereof would not forthwith give rise to a cause of action under Rule 65 of the Rules of Court. The general rule is that where a motion to quash is denied, the remedy therefrom is not certiorari, but for the party aggrieved thereby to go to trial without prejudice to reiterating special defenses involved in said motion, and if, after trial on the merits of adverse decision is rendered, to appeal therefrom in the manner authorized by law. And , even where in an exceptional circumstance such denial may be the subject of a special civil action for certiorari, a motion for reconsideration must have to be filed to allow the court concerned an opportunity to correct its errors, unless such motion may be dispensed with because of existing exceptional circumstances. Finally, even if a motion for reconsideration has been filed and denied, the remedy under Rule 65 is still unavailable absent any showing of the grounds provided for in Section 1 thereof. For obvious reasons, the petition at bar does not, and could not have , alleged any of such grounds.
[7] [8] [9]

As to the second set of petitioners, the instant petition is obviously one for DECLARATORY RELIEF, i.e., for a declaration that the Ordinances in question are a nullity ... for being unconstitutional. As such, their petition must likewise fail, as this Court is not possessed of original jurisdiction over petitions for declaratory relief even if only questions of law are involved, it being settled that the Court merely exercises appellate jurisdiction over such petitions.
[10] [11] [12]

II

Even granting arguendo that the first set of petitioners have a cause of action ripe for the extraordinary writ of certiorari, there is here a clear disregard of the hierarchy of courts, and no special and important reason or exceptional or compelling circumstance has been adduced why direct recourse to us should be allowed. While we have concurrent jurisdiction with Regional Trial courts and with the Court of Appeals to issue writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction, such concurrence gives petitioners no unrestricted freedom of choice of court forum, so we held in People v. Cuaresma:
[13]

This concurrence of jurisdiction is not to be taken as according to parties seeking any of the writs an absolute unrestrained freedom of choice of the court to which application therefor will be directed. There is after all hierarchy of courts. That hierarchy is determinative of the venue of appeals, and should also serve as a general determinant of the appropriate forum for petitions for the extraordinary writs. A becoming regard for that judicial hierarchy most certainly indicates that petitions for

the issuance of extraordinary writs against first level (inferior) courts shou ld be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct invocation of the Supreme Courts original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. This is established policy. It is a policy necessary to prevent inordinate demands upon the Courts time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further over-crowding of the Courts docket. The Court feels the need to reaffirm that policy at this time, and to enjoin strict adherence thereto in the light of what it perceives to be a growing tendency on the part of litigants and lawyers to have their applications for the so-called extraordinary writs, and sometimes even their appeals, passed upon and adjudicated directly and immediately by the highest tribunal of the land. In Santiago v. Vasquez, this Court forcefully expressed that the propensity of litigants and lawyers to disregard the hierarchy of courts must be put to a halt, not only because of the imposition upon the precious time of this Court, but also because of the inevitable and resultant delay, intended or otherwise, in the adjudication of the case which often has to be remanded or referred to the lower court, the proper forum under the rules of procedure, or as better equipped to resolve the issues since this Court is not a trier of facts. We reiterated the judicial policy that this Court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts or where exceptional and compelling circumstances justify availment of a remedy within and calling for the exercise of [its] primary jurisdiction.
[14]

III

Notwithstanding the foregoing procedural obstacles against the first set of petitioners, we opt to resolve this case on its merits considering that the lifetime of the challenged Ordinances is about to end. Ordinance No. 15-92 of the City of Puerto Princesa is effective only up to 1 January 1998, while Ordinance No. 2 of the Province of Palawan, enacted on 19 February 1993, is effective for only five (5) years. Besides, these Ordinances were undoubtedly enacted in the exercise of powers under the new LGC relative to the protection and preservation of the environment and are thus novel and of paramount importance. No further delay then may be allowed in the resolution of the issues raised. It is of course settled that laws (including ordinances enacted by local government units) enjoy the presumption of constitutionality. To overthrow this presumption, there must be a clear and unequivocal breach of the
[15]

Constitution, not merely a doubtful or argumentative contradiction. In short, the conflict with the Constitution must be shown beyond reasonable doubt. Where doubt exists, even if well founded, there can be no finding of unconstitutionality. To doubt is to sustain.
[16] [17]

After a scrunity of the challenged Ordinances and the provisions of the Constitution petitioners claim to have been violated, we find petitioners contentions baseless and so hold that the former do not suffer from any infirmity, both under the Constitution and applicable laws. Petitioners specifically point to Section 2, Article XII and Sections 2 and 7, Article XIII of the Constitution as having been transgressed by the Ordinances. The pertinent portion of Section 2 of Article XII reads: SEC. 2. x x x

The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens. The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons. Sections 2 and 7 of Article XIII provide: Sec. 2. The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance. xxx SEC. 7. The State shall protect the rights of subsistence fishermen, especially of local communities, to the preferential use of the communal marine and fishing resources, both inland and offshore. It shall provide support to such fishermen through appropriate technology and research, adequate financial, production, and marketing assistance, and other services. The State shall also protect, develop, and conserve such resources. The protection shall extend to offshore fishing grounds of subsistence fishermen against foreign intrusion. Fishworkers shall receive a just share from their labor in the utilization of marine and fishing resources. There is absolutely no showing that any of the petitioners qualifies as a subsistence or marginal fisherman. In their petition, petitioner Airline Shippers

Association of Palawan is described as a private association composed of Marine Merchants; petitioners Robert Lim and Virginia Lim, as merchants; while the rest of the petitioners claim to be fishermen, without any qualification, however, as to their status. Since the Constitution does not specifically provide a definition of the terms subsistence or marginal fishermen, they should be construed in their general and ordinary sense. A marginal fisherman is an individual engaged in fishing whose margin of return or reward in his harvest of fish as measured by existing price levels is barely sufficient to yield a profit or cover the cost of gathering the fish, while a subsistence fisherman is one whose catch yields but the irreducible minimum for his livelihood. Section 131(p) of the LGC (R.A. No. 7160) defines a marginal farmer or fisherman as an individual engaged in subsistence farming or fishing which shall be limited to the sale, barter or exchange of agricultural or marine products produced by himself and his immediate family. It bears repeating that nothing in the record supports a finding that any petitioner falls within these definitions.
[18] [19] [20]

Besides, Section 2 of Article XII aims primarily not to bestow any right to subsistence fishermen, but to lay stress on the duty of the State to protect the nations marine wealth. What the provision merely recognizes is that the State may allow, by law, cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons. Our survey of the statute books reveals that the only provision of law which speaks of the preferential right of marginal fishermen is Section 149 of the LGC of 1991 which pertinently provides: SEC. 149. Fishery Rentals, Fees and Charges. -- x x x (b) The sangguniang bayan may: (1) Grant fishery privileges to erect fish corrals, oyster, mussels or other aquatic beds or bangus fry areas, within a definite zone of the municipal waters, as determined by it: Provided, however, That duly registered organizations and cooperatives of marginal fishermen shall have preferential right to such fishery privileges .... In a Joint Administrative Order No. 3, dated 25 April 1996, the Secretary of the Department of Agriculture and the Secretary of the Department of Interior and Local Government prescribed the guidelines on the preferential treatment of small fisherfolk relative to the fishery right mentioned in Section 149. This case, however, does not involve such fishery right.

Anent Section 7 of Article XIII, it speaks not only of the use of communal marine and fishing resources, but of their protection, development, and conservation. As hereafter shown, the ordinances in question are meant precisely to protect and conserve our marine resources to the end that their enjoyment by the people may be guaranteed not only for the present generation, but also for the generations to come. The so-called preferential right of subsistence or marginal fishermen to the use of marine resources is not at all absolute. In accordance with the Regalian Doctrine, marine resources belong to the State, and, pursuant to the first paragraph of Section 2, Article XII of the Constitution, their exploration, development and utilization ... shall be under the full control and supervision of the State. Moreover, their mandated protection, development, and conservation as necessarily recognized by the framers of the Constitution, imply certain restrictions on whatever right of enjoyment there may be in favor of anyone. Thus, as to the curtailment of the preferential treatment of marginal fisherman, the following exchange between Commissioner Francisco Rodrigo and Commissioner Jose F.S. Bengzon, Jr., took place at the plenary session of the Constitutional Commission: MR. RODRIGO: Let us discuss the implementation of this because I would not raise the hopes of our people, and afterwards fail in the implementation. How will this be implemented? Will there be a licensing or giving of permits so that government officials will know that one is really a marginal fisherman? Or if policeman say that a person is not a marginal fisherman, he can show his permit, to prove that indeed he is one. MR. BENGZON: Certainly, there will be some mode of licensing insofar as this is concerned and this particular question could be tackled when we discuss the Article on Local Governments -- whether we will leave to the local governments or to Congress on how these things will be implemented. But certainly, I think our Congressmen and our local officials will not be bereft of ideas on how to implement this mandate. x x x MR. RODRIGO:

So, once one is licensed as a marginal fisherman, he can go anywhere in the Philippines and fish in any fishing grounds. MR. BENGZON: Subject to whatever rules and regulations and local laws that may be passed, may be existing or will be passed. (underscoring supplied for emphasis).
[21]

What must likewise be borne in mind is the state policy enshrined in the Constitution regarding the duty of the State to protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. On this score, in Oposa v. Factoran, this Court declared:
[22] [23]

While the right to balanced and healthful ecology is to be found under the Declaration of Principles the State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns nothing less than self-preservation and self-perpetuation - aptly and fittingly stressed by the petitioners - the advancement of which may even be said to predate all governments and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself, thereby highlighting their continuing importance and imposing upon the state a solemn obligation to preserve the first and protect and advance the second , the day would not be too far when all else would be lost not only for the present generation, but also for those to come - generations which stand to inherit nothing but parched earth incapable of sustaining life. The right to a balanced and healthful ecology carries with it a correlative duty to refrain from impairing the environment ... The LGC provisions invoked by private respondents merely seek to give flesh and blood to the right of the people to a balanced and healthful ecology. In fact, the General Welfare Clause, expressly mentions this right: 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. (underscoring supplied). Moreover, Section 5(c) of the LGC explicitly mandates that the general welfare provisions of the LGC shall be liberally interpreted to give more powers to the local government units in accelerating economic development and upgrading the quality of life for the people of the community. The LGC vests municipalities with the power to grant fishery privileges in municipal waters and to impose rentals, fees or charges therefor; to penalize, by appropriate ordinances, the use of explosives, noxious or poisonous substances, electricity, muro-ami, and other deleterious methods of fishing; and to prosecute any violation of the provisions of applicable fishery laws. Further, the sangguniang bayan, the sangguniang panlungsod and the sangguniang panlalawigan are directed to enact ordinances for the general welfare of the municipality and its inhabitants, which shall include, inter alia, ordinances that [p]rotect the environment and impose appropriate penalties for acts which endanger the environment such as dynamite fishing and other forms of destructive fishing ... and such other activities which result in pollution, acceleration of eutrophication of rivers and lakes or of ecological imbalance.
[24] [25]

Finally, the centerpiece of LGC is the system of decentralization as expressly mandated by the Constitution. Indispensable thereto is devolution and the LGC expressly provides that [a]ny provision on a power of a local government unit shall be liberally interpreted in its favor, and in case of doubt, any question thereon shall be resolved in favor of devolution of powers and of the lower local government unit. Any fair and reasonable doubt as to the existence of the power shall be interpreted in favor of the local government unit concerned, Devolution refers to the act by which the National Government confers power and authority upon the various local government units to perform specific functions and responsibilities.
[26] [27] [28] [29]

One of the devolved powers enumerated in the section of the LGC on devolution is the enforcement of fishery laws in municipal waters including the conservation of mangroves. This necessarily includes enactment of
[30]

ordinances to effectively carry out such fishery laws within the municipal waters. The term municipal waters, in turn, include not only streams, lakes, and tidal waters within the municipality, not being the subject of private ownership and not comprised within the national parks, public forest, timber lands, forest reserves, or fishery reserves, but also marine waters included between two lines drawn perpendicularly to the general coastline from points where the boundary lines of the municipality or city touch the sea at low tide and a third line parallel with the general coastline and fifteen kilometers from it. Under P.D. No. 704, the marine waters included in municipal waters is limited to three nautical miles from the general coastline using the above perpendicular lines and a third parallel line.
[31]

These fishery laws which local government units may enforce under Section 17(b), (2), (i) in municipal waters include: (1) P.D. No. 704; (2) P.D. No. 1015 which, inter alia, authorizes the establishment of a closed season in any Philippine water if necessary for conservation or ecological purposes; (3) P.D. No. 1219 which provides for the exploration, exploitation, utilization, and conservation of coral resources; (4) R.A. No. 5474, as amended by B.P. Blg. 58, which makes it unlawful for any person, association, or corporation to catch or cause to be caught, sell, offer to sell, purchase, or have in possession any of the fish specie called gobiidae or ipon during closed season; and (5) R.A. No. 6451 which prohibits and punishes electrofishing, as well as various issuances of the BFAR. To those specifically devolved insofar as the control and regulation of fishing in municipal waters and the protection of its marine environment are concerned, must be added the following:
1. 2. 3. 4. 5. 6. 7. 8. Issuance of permits to construct fish cages within municipal waters; Issuance of permits to gather aquarium fishes within municipal waters; Issuance of permits to gather kapis shells within municipal waters; Issuance of permits to gather/culture shelled mollusks within municipal waters; Issuance of licenses to establish seaweed farms within municipal waters; Issuance of licenses to establish culture pearls within municipal waters; Issuance of auxiliary invoice to transport fish and fishery products; and Establishment of closed season in municipal waters.

These functions are covered in the Memorandum of Agreement of 5 April 1994 between the Department of Agriculture and the Department of Interior and Local Government. In light then of the principles of decentralization and devolution enshrined in the LGC and the powers granted to local government units under Section 16 (the General Welfare Clause), and under Sections 149, 447 (a) (1) (vi), 458

(a) (1) (vi) and 468 (a) (1) (vi), which unquestionably involve the exercise of police power, the validity of the questioned Ordinances cannot be doubted. Parenthetically, we wish to add that these Ordinances find full support under R.A. No. 7611, otherwise known as the Strategic Environmental Plan (SEP) for Palawan Act, approved on 19 July 1992. This statute adopts a comprehensive framework for the sustainable development of Palawan compatible with protecting and enhancing the natural resources and endangered environment of the province, which shall serve to guide the local government of Palawan and the government agencies concerned in the formulation and implementation of plans, programs and projects affecting said province.
[32]

At this time then, it would be appropriate to determine the relation between the assailed Ordinances and the aforesaid powers of the Sangguniang Panlungsod of the City of Puerto Princesa and the Sangguniang Panlalawigan of the Province of Palawan to protect the environment. To begin, we ascertain the purpose of the Ordinances as set forth in the statement of purposes or declaration of policies quoted earlier. It is clear to the Court that both Ordinances have two principal objectives or purposes: (1) to establish a closed season for the species of fish or aquatic animals covered therein for a period of five years, and (2) to protect the corals of the marine waters of the City of Puerto Princesa and the Province of Palawan from further destruction due to illegal fishing activities. The accomplishment of the first objective is well within the devolved power to enforce fishery laws in municipal waters, such as P.D. No. 1015, which allows the establishment of closed seasons. The devolution of such power has been expressly confirmed in the Memorandum of Agreement of 5 April 1994 between the Department of Agriculture and the Department of Interior and Local Government. The realization of the second objective falls within both the general welfare clause of the LGC and the express mandate thereunder to cities and provinces to protect the environment and impose appropriate penalties for acts which endanger the environment.
[33]

The destruction of the coral reefs results in serious, if not irreparable, ecological imbalance, for coral reefs are among the natures life-support systems. They collect, retain, and recycle nutrients for adjacent nearshore areas such as mangroves, seagrass beds, and reef flats; provide food for marine plants and animals; and serve as a protective shelter for aquatic organisms. It is said that [e]cologically, the reefs are to the oceans what
[34] [35]

forests are to continents: they are shelter and breeding grounds for fish and plant species that will disappear without them.
[36]

The prohibition against catching live fish stems, in part, from the modern phenomenon of live-fish trade which entails the catching of so-called exotic tropical species of fish not only for aquarium use in the West, but also for the market for live banquet fish [which] is virtually insatiable in ever more affluent Asia. These exotic species are coral-dwellers, and fishermen catch them by diving in shallow water with corraline habitats and squirting sodium cyanide poison at passing fish directly or onto coral crevices; once affected the fish are immobilized [merely stunned] and then scooped by hand. The diver then surfaces and dumps his catch into a submerged net attached to the skiff . Twenty minutes later, the fish can swim normally. Back on shore, they are placed in holding pens, and within a few weeks, they expel the cyanide from their system and are ready to be hauled. Then they are placed in saltwater tanks or packaged in plastic bags filled with seawater for shipment by air freight to major markets for live food fish. While the fish are meant to survive, the opposite holds true for their former home as [a]fter the fisherman squirts the cyanide, the first thing to perish is the reef algae, on which fish feed. Days later, the living coral starts to expire. Soon the reef loses its function as habitat for the fish, which eat both the algae and invertebrates that cling to the coral. The reef becomes an underwater graveyard, its skeletal remains brittle, bleached of all color and vulnerable to erosion from the pounding of the waves. It has been found that cyanide fishing kills most hard and soft corals within three months of repeated application.
[37] [38] [39] [40] [41]

The nexus then between the activities barred by Ordinance No. 15-92 of the City of Puerto Princesa and the prohibited acts provided in Ordinance No. 2, Series of 1993 of the Province of Palawan, on one hand, and the use of sodium cyanide, on the other, is painfully obvious. In sum, the public purpose and reasonableness of the Ordinances may not then be controverted. As to Office Order No. 23, Series of 1993, issued by Acting City Mayor Amado L. Lucero of the City of Puerto Princesa, we find nothing therein violative of any constitutional or statutory provision. The Order refers to the implementation of the challenged ordinance and is not the Mayors Permit. The dissenting opinion of Mr. Justice Josue N. Bellosillo relies upon the lack of authority on the part of the Sangguniang Panlungsod of Puerto Princesa to enact Ordinance No. 15, Series of 1992, on the theory that the subject thereof is within the jurisdiction and responsibility of the Bureau of Fisheries and Aquatic Resources (BFAR) under P.D. No. 704, otherwise known as the Fisheries Decree of 1975; and that, in any event, the Ordinance

is unenforceable for lack of approval by the Secretary of the Department of Natural Resources (DNR), likewise in accordance with P.D. No. 704. The majority is unable to accommodate this view. The jurisdiction and responsibility of the BFAR under P. D. no. 704, over the management, conservation, development, protection, utilization and disposition of all fishery and aquatic resources of the country is not all-encompassing. First, Section 4 thereof excludes from such jurisdiction and responsibility municipal waters, which shall be under the municipal or city government concerned, except insofar as fishpens and seaweed culture in municipal in municipal centers are concerned. This section provides, however, that all municipal or city ordinances and resolutions affecting fishing and fisheries and any disposition thereunder shall be submitted to the Secretary of the Department of Natural Resources for appropriate action and shall have full force and effect only upon his approval.
[42]

Second, it must at once be pointed out that the BFAR is no longer under the Department of Natural Resources (now Department of Environment and Natural Resources). Executive Order No. 967 of 30 June 1984 transferred the BFAR from the control and supervision of the Minister (formerly Secretary) of Natural Resources to the Ministry of Agriculture and Food (MAF) and converted it into a mere staff agency thereof, integrating its functions with the regional offices of the MAF. In Executive Order No. 116 of 30 January 1987, which reorganized the MAF, the BFAR was retained as an attached agency of the MAF. And under the Administrative Code of 1987, the BFAR is placed under the Title concerning the Department of Agriculture.
[43] [44]

Therefore, it is incorrect to say that the challenged Ordinance of the City of Puerto Princesa is invalid or unenforceable because it was not approved by the Secretary of the DENR. If at all, the approval that should be sought would be that of the Secretary of the Department of Agriculture (not DENR) of municipal ordinances affecting fishing and fisheries in municipal waters has been dispensed with in view of the following reasons: (1) Section 534 (Repealing Clause) of the LGC expressly repeals or amends Section 16 and 29 of P.D. No. 704 insofar that they are inconsistent with the provisions of the LGC.
[45]

(2) As discussed earlier, under the general welfare clause of the LGC, local government units have the power, inter alia, to enact ordinances to enhance the right of the people to a balanced ecology. It likewise specifically vests municipalities with the power to grant fishery privileges in municipal

waters, and impose rentals, fees or charges therefor; to penalize, by appropriate ordinances, the use of explosives, noxious or poisonous substances, electricity, muro-ami, and other deleterious methods of fishing; and to prosecute other methods of fishing; and to prosecute any violation of the provisions of applicable fishing laws. Finally, it imposes upon the sangguniang bayan, the sangguniang panlungsod, and the sangguniang panlalawigan the duty to enact ordinances to [p]rotect the environment and impose appropriate penalties for acts which endanger the environment such as dynamite fishing and other forms of destructive fishing and such other activities which result in pollution, acceleration of eutrophication of rivers and lakes or of ecological imbalance.
[46] [47]

In closing, we commend the Sangguniang Panlungsod of the City of Puerto Princesa and Sangguniang Panlalawigan of the Province of Palawan for exercising the requisite political will to enact urgently needed legislation to protect and enhance the marine environment, thereby sharing in the herculean task of arresting the tide of ecological destruction. We hope that other local government units shall now be roused from their lethargy and adopt a more vigilant stand in the battle against the decimation of our legacy to future generations. At this time, the repercussions of any further delay in their response may prove disastrous, if not, irreversible. WHEREFORE, the instant petition is DISMISSED for lack of merit and the temporary restraining order issued on 11 November 1993 is LIFTED. No pronouncement as to costs. SO ORDERED. Narvasa, C.J., Padilla, Vitug, Panganiban, and Torres, Jr., JJ., concur. Romero, Melo, Puno, and Francisco, JJ., joined the ponencias of Justices Davide and Mendoza. Bellosillo, J., see dissenting opinion. Kapunan and Hermosisima, Jr., JJ., join Justice Bellosillo in his dissenting opinion. Mendoza, see concurring opinion. Regalado, J., on official leave.
Rationale

RA 7160 clearly provides for the management by LGUs of municipal waters and other water resources within its territory. The emphasis given by RA 7160 on the extent of powers exercised

by the LGUs is highlighted in several cases, most notable of which is that of Tano vs. Socrates21 , thus: Section 5(c) of the LGC explicitly mandates that the general welfare provisions of the LGC "shall be liberally interpreted to give more powers to the local government units in accelerating economic development and upgrading the quality of life for the people of the community

THE PREFERENTIAL RIGHT OF MARGINAL AND SUBSISTENCE FISHERMEN Sec. 7, Art. XIII, 1987 Constitution SECTION 7. The State shall protect the rights of subsistence fishermen, especially of local communities, to the preferential use of local marine and fishing resources, both inland and offshore. It shall provide support to such fishermen through appropriate technology and research, adequate financial, production, and marketing assistance, and other services. The State shall also protect, develop, and conserve such resources. The protection shall extend to offshore fishing grounds of subsistence fishermen against foreign intrusion. Fishworkers shall receive a just share from their labor in the utilization of marine and fishing resources. Tano v. Socrates, G.R. No. 110249, Aug. 21, 1997 The preferential right of subsistence or marginal fishermen to the use of marine resources is not absolute. In accordance with the Regalian Doctrine, marine resources belong to the State, and, pursuant to the first paragraph of Section 2, Article XII of the Constitution, their exploration, development and utilization x x x shall be under the full control and supervision of the State. Moreover, their mandated protection, development and conservation x x x imply certain restrictions on whatever right of enjoyment there may be in favor of anyone. What must be borne in mind is the State policy enshrined in the Constitution regarding the duty of the State to protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature(Section 16, Article II).

DIGEST
Republic vs. Maria Lee and IAC, G.R. No. 64818, May 13, 1991 (197 SCRA)
Posted by Evelyn failure to prove bonafide claim to land through tacking possession from predecessor-in interest to meet requirements provided by law Facts: Respondent filed before the RTC a registration of a parcel of land in her favor which was opposed by the Dir. Of Lands on grounds that respondent or her predecessor-in-interest acquired the land under any recognized mode for acquisition of title; they have not been in open, continuous, exclusive, notorious possession of the land in the concept of an owner for at least 30 years prior to the filing of application and the land in dispute is a public domain belonging to Republic of the Philippines. The court rendered judgment in favor of respondents. Upon appeal by RP, it affirmed the lower court decision thus this appeal to the Supreme Court. Republic of the Phil. contends that respondent failed to prove by conclusive evidence that she has ownership of the land by fee simple title and her testimony as to the ownership of her predecessor-in-interest is self serving after claiming that she obtained her Deed of Sale of the property from Laureana Mataban and Sixto Espiritu who obtained their title from the previous owners of the land, Urbano Diaz and Bernarda Vinluan. From the time of filing the application of registration, the respondent was in possession of the land for 13 years but she sought to tack her possession on the said land from her predecessor-in-interests who were in possession of the land for 20 years. Conditions provided by Sec. 48 (b) of Commonwealth Act No. 141 where one is under a bonafide claim of acquisition of ownership through their predecessor-in-interest or by themselves have been in open, continuous, exclusive and notorious possession and occupation of the agricultural land in public domain for 30 years shall be entitled to a certificate of title.

Issue: Whether or not the respondent is able to provide sufficient and substantial evidence as complying with the requirement of law for confirmation of her ownership of the land in dispute? Ruling: In is held that it is incumbent upon the respondent to prove that her predecessor-in-interest is the persons of Urbano Diaz and Bernarda Vinluan have been in adverse, continuous, open, public, peaceful possession in the concept of an owner for 20 years which she failed to provide a clear and convincing evidence to prove. Her bare allegations do not constitute substantial proof. Respondent failed to comply with the requirements of the law to confirm her title on the land applied for registration. Lower court decision was set aside. Underlying Principle: All lands not acquired from the government belong to the state as part of public domain.

Tano vs Socrates 278 SCRA 154


Posted by Evelyn

Facts

The Sangguniang Panlungsod of Puerto Princessa enacted ordinance no. 15-92 banning the shipment of live fish and lobster outside Puerto Princessa City for a period of 5 years. In the same light, the Sangguniang Panlalawigan of Palawan also enacted a resolution that prohibits the catching, gathering, buying, selling and possessing and shipment of live marine coral dwelling aquatic organisms for a period of 5 years within the Palawan waters. The petitiones Airline Shippers Association of Palawan together with marine merchants were charged for violating the above ordinance and resolution by the city and provincial governments. The petitioners now allege that they have the preferential rights as marginal fishermen granted with privileges provided in Section 149 of the Local Government Code, invoking the invalidity of the above-stated enactments as violative of their preferential rights. Issue Whether or not the enacted resolutions and ordinances by the local government units violative of the preferential rights of the marginal fishermen ?

Held No, the enacted resolution and ordinance of the LGU were not violative of their preferential rights. The enactment of these laws was a valid exercise of the police power of the LGU to protect public interests and the public right to a balanced and healthier ecology. The rights and privileges invoked by the petitioners are not absolute. The general welfare clause of the local government code mandates for the liberal interpretation in giving the LGUs more power to accelerate economic development and to upgrade the life of the people in the community. The LGUs are endowed with the power to enact fishery laws in its municipal waters which necessarily includes the enactment of ordinances in order to effectively carry out the enforcement of fishery laws in their local community.

TANO v. SOCRATES Facts: The petitioners filed a petition for certiorari and prohibition assailing the constitutionality of: (1) Ordinance No. 15-92 entitled: "AN ORDINANCE BANNING THE SHIPMENT OF ALL LIVE FISH AND LOBSTER OUTSIDE PUERTO PRINCESA CITY FROM JANUARY 1, 1993 TO JANUARY 1, 1998 AND PROVIDING EXEMPTIONS, PENALTIES AND FOR OTHER PURPOSES THEREOF" (2) Office Order No. 23, requiring any person engaged or intending to engage in any business, trade, occupation, calling or profession or having in his possession any of the articles for which a permit is required to be had, to obtain first a Mayors and authorizing and directing to check or conduct necessary inspections on cargoes containing live fish and lobster being shipped out from Puerto Princesa and, (3) Resolution No. 33, Ordinance No. 2 entitled: "A RESOLUTION PROHIBITING THE CATCHING, GATHERING, POSSESSING, BUYING, SELLING AND SHIPMENT OF LIVE MARINE CORAL DWELLING AQUATIC ORGANISMS The petitioners contend that the said Ordinances deprived them of due process of law, their livelihood, and unduly restricted them from the practice of their trade, in violation of Section 2, Article XII and Sections 2 and 7 of Article XIII of the 1987 Constitution and that the Mayor had the absolute authority to determine whether or not to issue the permit. They also claim that it took away their right to earn their livelihood in lawful ways; and insofar as the Airline Shippers Association are concerned, they were unduly prevented from pursuing their vocation

and entering "into contracts which are proper, necessary, and essential to carry out their business endeavors to a successful conclusion Public respondents Governor Socrates and Members of the Sangguniang Panlalawigan of Palawan defended the validity of Ordinance No. 2, Series of 1993, as a valid exercise of the Provincial Government's power under the general welfare clause; they likewise maintained that there was no violation of the due process and equal protection clauses of the Constitution. Issue: Whether or not the Ordinances in question are unconstitutional Held: NO Ratio: In light then of the principles of decentralization and devolution enshrined in the LGC and the powers granted therein to local government units under Section 16 (the General Welfare Clause), and under Sections 149, 447(a) (1) (vi), 458 (a) (1) (vi) and 468 (a) (1) (vi), which unquestionably involve the exercise of police power, the validity of the questioned Ordinances cannot be doubted. ***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. (emphasis supplied). It is clear to the Court that both Ordinances have two principal objectives or purposes: (1) to establish a "closed season" for the species of fish or aquatic animals covered therein for a period of five years; and (2) to protect the coral in the marine waters of the City of Puerto Princesa and the Province of Palawan from further destruction due to illegal fishing activities. It imposes upon the sangguniang bayan, the sangguniang panlungsod, and the sangguniang panlalawigan the duty to enact ordinances to "[p]rotect the environment and impose appropriate penalties for acts which endanger the environment such as dynamite fishing and other forms of destructive fishing . . . and such other activities which result in pollution, acceleration of eutrophication of rivers and lakes or of ecological imbalance." The petition is dismissed.

Sections 2 and 7 of Article XIII provide: Sec. 2. The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance. xxx xxx xxx Sec. 7. The State shall protect the rights of subsistence fishermen, especially of local communities, to the preferential use of the communal marine and fishing resources, both inland and offshore. It shall provide support to such fishermen through appropriate technology and research, adequate financial, production, and marketing assistance, and other services. The State shall also protect, develop, and conserve such resources. The protection shall extend to offshore fishing grounds of subsistence fishermen against foreign intrusion. Fishworkers shall receive a just share from their labor in the utilization of marine and fishing resources.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-48321 August 31, 1946

OH CHO, applicant-appellee, vs. THE DIRECTOR OF LANDS, oppositor-appellant. Office of the Solicitor General Roman Ozaeta and Assistant Solicitor General Rafael Amparo for appellant. Vicente Constantino for appellee. Ferrier, Gomez and Sotelo and J. T. Chuidian as amici curiae. PADILLA, J.: This is an appeal from a judgment decreeing the registration of a residential lot located in the municipality of Guinayangan, Province of Tayabas in the name of the applicant. The opposition of the Director of Lands is based on the applicant's lack of title to the lot, and on his disqualification, as alien, from acquiring lands of the public domain. The applicant, who is an alien, and his predecessors in interest have been in open, continuous, exclusive and notorious possession of the lot from 1880 to filing of the application for registration on January 17, 1940. The Solicitor General reiterates the second objection of the opponent and adds that the lower court, committed an error in not declaring null and void the sale of the lot to the applicant. The applicant invokes the Land Registration Act (Act No. 496), or should it not be applicable to the case, then he would apply for the benefits of the Public Land Act (C.A. No. 141). The applicant failed to show that he has title to the lot that may be confirmed under the Land Registration Act. He failed to show that he or any of his predecessors in interest had acquired the lot from the Government, either by purchase or by grant, under the laws, orders and decrease promulgated by the Spanish Government in the Philippines, or by possessory information under the Mortgaged Law (section 19, Act 496). All lands that were not acquired from the Government, either by purchase or by grant below to the public domain. An exception to the rule would be any land that should have been in the possession of an occupant and of his predecessors in interest since time immemorial, for such possession would justify the presumption that the land had never been part of the public domain or that it had been a private property even before the Spanish conquest. (Cario vs. InsularGovernment, 212 U.S., 449; 53 Law. Ed., 594.) The applicant does not come under the exception, for the earliest possession of the lot by his first predecessors in interest begun in 1880. As the applicant failed to show title to the lot, the next question is whether he is entitled to decree or registration of the lot, because he is alien disqualified from acquiring lands of the public domain (sections 48, 49, C.A. No. 141). As the applicant failed to show the title to the lot, and has invoked the provisions of the Public Land Act, it seems unnecessary to make pronouncement in this case on the nature or classifications of the sought to be registered. It may be argued that under the provisions of the Public Land Act the applicant immediate predecessor in interest would have been entitled to a decree of registration of the lot had they applied for its registration; and that he having purchased or acquired it, the right of his immediate predecessor in interest to a decree of

registration must be deemed also to have been acquired by him. The benefits provided in the Public Land Act for applicant's immediate predecessors in interest should comply with the condition precedent for the grant of such benefits. The condition precedent is to apply for the registration of the land of which they had been in possession at least since July 26, 1894. This the applicant's immediate predecessors in interest failed to do. They did not have any vested right in the lot amounting to the title which was transmissible to the applicant. The only right, if it may thus be called, is their possession of the lot which, tacked to that of their predecessors in interest, may be availed of by a qualified person to apply for its registration but not by a person as the applicant who is disqualified. It is urged that the sale of the lot to the applicant should have been declared null and void. In a suit between vendor and vendee for the annulment of the sale, such pronouncement would be necessary, if the court were of the opinion that it is void. It is not necessary in this case where the vendors do not even object to the application filed by the vendee. Accordingly, judgment is reversed and the application for registration dismissed, without costs. Moran, C.J., Feria, Pablo, Hilado and Bengzon, JJ., concur.

Separate Opinions PERFECTO, J., concurring: Oh Cho, a citizen of the Republic of China, purchased in 1938 from Antonio, Luis and Rafael Lagdameo a parcel of land located in the residential district of Guinayangan, Tayabas, which has been in the continuous, public, and adverse possession of their predecessors in interest as far back as 1880. on June 17, 1940, Oh Cho applied for the registration of said parcel of land. The Director of Lands opposed the application because, among other grounds, the Constitution prohibits aliens from acquiring public or private agricultural lands. One of the witnesses for the applicant, on cross-examination, expressly admitted that the land in question is susceptible of cultivation and may be converted into an orchard or garden. Rodolfo Tiquia, inspector of the Bureau of Lands, testifying as a witness for the government, stated that the land, notwithstanding the use to which it is actually devoted, is agricultural land in accordance with an opinion rendered in 1939 by the Secretary of Justice. The pertinent part of said opinion, penned by Secretary Jose Abad Santos, later Chief Justice of the Supreme Court, is as follows: 1. Whether or not the "public agricultural land" in section 1, Article XII, of the Constitution may be interpreted to include residential, commercial or industrial lots for purposes of their disposition. 1. Section 1, Article XII of the Constitution classifies lands of the public domain in the Philippines into agricultural, timber and mineral. This is the basic classification adopted since the enactment of the Act of Congress of July 1, 1902, known as the Philippine Bill. At the time of the adoption of the Constitution of the Philippines, the term "agricultural public lands" had, therefor, acquired a technical meaning in our public laws. The Supreme Court of the Philippines in the leading case of Mapa vs. Insular Government, 10 Phil., 175, held that the phrase "agricultural public lands" means those public lands acquired from Spain which are neither timber nor mineral lands. This definition has been followed by our Supreme Court in many subsequent cases. (Montano vs. Ins. Gov't 12 Phil., 572, 574; Santiago vs. Ins. Gov't., 12, Phil., 593; Ibaes de Aldecoa vs. Ins. Gov't., 13 Phil., 159; Ins. Gov't., vs. Aldecoa & Co., 19 Phil., 505, 516 Mercado vs.Collector of Internal Revenue, 32 Phil., 271, 276; Molina 175, 181; Jocson vs. Director of Forestry, 39 Phil., 560, 564; and Ankron vs. Government of the Philippines, 40 Phil., 10, 14.)

Residential, commercial or industrial lots forming part of the public domain must have to be included in one or more of these classes. Clearly, they are neither timber nor mineral, of necessity, therefore, they must be classified as agricultural. Viewed from the another angle, it has been held that in determining whether lands are agricultural or not, the character of the lands is the test (Odell vs. Durant 62 N. W., 524; Lerch vs. Missoula Brick & Tile Co., 123 p., 25). In other words, it is the susceptibility of the land to cultivation for agricultural or not (State vs.Stewart, 190, p.,129). Judge Pedro Magsalin, of the Court First Instance of Tayabas, rendered a decision on August 15, 1940, overruling the opposition without must explanation and decreeing the registration prayed for the applicant. The Director of Lands appealed from the decision, and the Solicitor General appearing for appellant, maintains that the applicant, not being a citizen of the Philippines, is disqualified to buy or acquire the parcel of land in question and that the purchase made in question and that the purchase made in 1938 is null and void. This is the question squarely reversing to us for decision. The majority, although reversing the lower court's decision and dismissing the application with we agree, abstained from the declaring null and void the purchase made by Oh Cho in 1938 as prayed for the appellant. We deem it necessary to state our opinion on the important question raised, it must be squarely decided. The Solicitor General argued in his brief as follows: I. The lower court erred decreeing the registration of the lot in question in favor of the applicant who, according to his own voluntary admission, is a citizen of the Chinese Republic . (a) The phrase "agricultural land" as used in the Act of the Congress of July 1, 1902, in the Public Land Act includes residential lots. In this jurisdiction lands of public domain suitable for residential purposes are considered agricultural lands under the Public Land Law. The phrase "agricultural public lands" has well settled judicial definition. It was used for the first time in the Act of Congress of July 1, 1902, known as the Philippine Bill. Its means those public lands acquired form Spain which are neither mineral nor timber lands (Mapa vs. Insular Government, 12 Phil., 572; Ibaes de Aldecoa vs. Insular Government 13 Phil., 159; Ramos vs. Director of Lands, 39 Phil., 175; Jocson vs. Director of Forestry, 39 Phil., 560; Ankron vs. Government of the Philippine Islands, 40 Phil., 10). In the case of Mapa vs. Insular Government, supra, the Supreme Court, in defining the meaning and scope of that phrase from the context of the sections 13 and 15 of that Act, said: The phrase "agricultural public lands" as defined by the Act of Congress of July 1, 1902, which phrase is also to be found in several sections of the Public Land Act (No. 926) means those public lands acquired from Spain which are neither mineral timber lands. xxx xxx xxx

"We hold that there is to be found in the act of Congress a definition of the phrase "agricultural public lands," and after careful consideration of the question we are satisfied that only definition which exists in said Act is the definition adopted by the court below. Section 13 say that the Government shall "make and rules and regulations for the lease, sale, or other dispositions of public lands other than timber or mineral lands," To our minds that is only definition that can be said to be given agricultural lands. In other words, that the phrase "agricultural lands" as used in Act No. 926 means those public lands acquired from Spain which are not timber or mineral lands. . . ." Mapa vs. Insular Government, 10 Phil., 175, 178, 182, emphasis added.) "This phrase "agricultural public lands" was subsequently used in Act No. 926, which is the first public land law of the Philippines. As therein used, the phrase was expressly given by the Philippine

Commission the same meaning intended for it by Congress as interpreted in the case of Mapa vs. Insular Government,supra. This is a self-evident from a reading of section 1, 10, 32, and 64 (subsection 6 of Act No. 926). Whenever the phrase "agricultural public lands" is used in any of said sections, it is invariably by the qualification "as defined by said Act of Congress of July first, nineteen hundred and two." "More specially, in the case of Ibaez de Aldecoa vs. Insular Government, supra, the Supreme Court held that a residential or building lot, forming part of the public domain, is agricultural land, irrespective of the fact that it is not actually used for purposes of agriculture for the simple reason that it is susceptible of cultivation and may be converted into a rural estate, and because when a land is not mineral or forestal in its nature it must necessarily be included within the classification of a agricultural land. Because of the special applicability of the doctrine laid down in said case, we quote at some length from the decision therein rendered: "The question set up in these proceedings by virtue of the appeal interposed by counsel for Juan Ibaez de Aldecoa, is whether or not a parcel of land that is susceptible of being cultivated, and ceasing to be agricultural land, was converted into a building lot, is subject to the legal provisions in force regarding Government public lands which may be alienated in favor of private individuals or corporations. . . . xxx xxx xxx

"Hence, any parcel of land or building lot is susceptible of cultivation, and may converted into a field, and planted with all kinds of vegetation ; for this reason, where land is not mining or forestal in its nature, it must necessarily be included within the classification of agriculture land, not because it is actually used for the purposes of agriculture, but because it was originally agricultural and may again become so under other circumstances; besides the Act of Congress (of July 1, 1902) contains only three classifications, and makes no special provision with respect to building lots or urban land that have ceased to be agricultural land. . . . xxx xxx xxx

"From the language of the foregoing provisions of the law, it is deduced that, with the exception of those comprised within the mineral and timber zone, all lands owned by State or by the sovereign nation are public in character, and per se alienable and, provided they are not destine to the use of public in general or reserved by the Government in accordance with law, they may be acquired by any private or juridical person; and considering their origin and primitive state and the general uses to which they are accorded, they are called agricultural lands, urbans lands and building lots being included in this classification for the purpose of distinguishing rural and urban estates from mineral and timber lands; the transformation they may have undergone is no obstacle to such classification as the possessors thereof may again convert them into rural estates." (Ibaez de Aldecoa vs. Insular Government 13 Phil., 161, 163 164, 165, 166; emphasis added.). (b) Under the Constitution and Commonwealth Act No. 141 (Public Land Act), the phrase (Public Land Act), the phrase "public agricultural land" includes lands of the public domain suitable for residential purposes. "Section 1, Article XII of the Constitution, reads as follows: "All agricultural timber, and mineral lands of the public domain waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy, and other natural resources of the Philippines belong to the State, and disposition, exploitation, development, or utilization shall be limited to citizens of the Philippines, or to corporations or associations at least sixty per centum of the capital of which is owned by such citizens, subject to any existing right,

grant lease, or concession at the time of the inauguration of the Government established under this Constitution. Natural resources, with the exception of public agricultural land, shall not be alienated . . ." (Emphasis added.). "Under the above-quote provision, the disposition exploitation, development or utilization of the natural resources, including agricultural lands of the public domain is limited to citizens of the Philippines or to the corporations or associations therein mentioned. It also clearly appears from said provision that natural resources, with the exception of public agricultural land, are not subject to alienation. "On November 7, 1936, or more than one year after the adoption of the Constitution, Commonwealth Act No. 141, known as the Public Land Act, was approved. Under this Act the lands of the public have been classified into three divisions: (a) alienable or disposable, (b) timber, and (c) mineral lands. The lands designated alienable or disposable correspond to lands designated in the Constitution as public agricultural lands, because under section 1, Article XII, public agricultural lands are the only natural resources of the country which are the only natural resources of the country which are subject to alienation or deposition. "Section 9 of Commonwealth Act No. 141 provide that the alienable or disposable public lands shall be classified, according to use or purposes to which they are destined, into a agricultural, residential, commercial, industrial, etc., lands. At first blush it would seem that under this classification residential land is different from agricultural land. The difference however, is more apparent than real. 'Public agricultural land ' as that phrase is used in the Constitution means alienable lands of the public domain and therefore this phrase is equivalent to the lands classified by the Commonwealth Act No. 141 as alienable or disposable. The classification provided in section 9 is only for purposes administration and disposition, according to the purposes to which said lands are especially adopted. But notwithstanding this of all said lands are essentially agricultural public lands because only agricultural public lands are subject to alienation or disposition under section 1, Article XII of the Constitution. A contrary view would necessarily create a conflict between Commonwealth Act No. 141 and section 1 of Article XII of the Constitution, and such conflict should be avoided , if possible, and said Act construed in the light of the fundamental provisions of the Constitution and in entire harmony therewith. "Another universal principles applied in considering constitutional question is, that an Act will be so construed, if possible, as to avoid conflict with the Constitution, although such a construction may not be the most obvious or natural one. "The Court may resort to an implication to sustain a statute, but not to destroy it." But the courts cannot go beyond the province of legitimate construction, in order to save a statute; and where the meaning is plain, words cannot to be read into it or out of it for that purpose." ( 1 Sutherland, Statutory Construction, pp. 135, 136.) "In view of the fact that more than one than one year after the adoption of the Constitution the National Assembly revised the Public Land Law and passed Commonwealth Act No. 141, which a compilation of the laws relative to the lands of the public domain and the amendments thereto, form to the Constitution. "Where the legislature has revised a statute after a Constitution has been adopted, such a revision is to be regarded as a legislative construction that the statute so revised conforms to the Constitution." (59 C.J., 1102; emphasis added.) "By the way of illustration, let us supposed that a piece or tract of public land has been classified pursuant to section 9 of Commonwealth Act No. 141 as residential land. If, by reason of this classification, it is maintained that said land has ceased to be agricultural public land, it will no longer be subject to alienation or disposition by reason of the constitutional provision that only agricultural lands are alienable; and yet such residential lot is alienable under section 58, 59, and 60 of Commonwealth Act No. 141 to citizens of the Philippines or to corporations or associations mentioned in section 1, Article XII of the Constitution. Therefore, the classification of public agricultural lands into various subdivisions is only for purposes of administration, alienation or disposition, but it does not destroy the inherent nature of all such lands as a public agricultural lands.

"(c) Judicial interpretation of doubtful clause or phrase use in the law, controlling. "The judicial interpretation given to the phrase "public agricultural land" is a sufficient authority for giving the same interpretation to the phrase as used in subsequent legislation, and this is especially so in view of the length of time during which this interpretation has been maintained by the courts. On this point Sutherland has the following to say: "When a judicial interpretation has once been put upon a clause, expressed in a vague manner by the legislature, and difficult to be understood, that ought of itself to be sufficient authority for adopting the same construction. Buller J., said: "We find solemn determination of these doubtful expressions in the statute, and as that now put another construction has since prevailed, there is no reason why we should now put another construction of the act on account of any suppose change of convenience." This rule of construction will hold good even if the court be opinion that the practical erroneous; so that if the matter were res integra the court would adopt a different construction. Lord Cairns said: "I think that with regard to statutes ... it is desirable not so much that the principle of the decision should be capable at all times of justification, as that the law should be settled, and should, when once settled, be maintained without any danger of vacillation or uncertainty. "Judicial usage and practice will have weight, and when continued for a long time will be sustained though carried beyond the pair purport of the statute."(II Lewis' Sutherland Statutory Construction, pp. 892, 893.) . "An important consideration affecting the weight of contemporary judicial construction is the length of time it has continued. It is adopted, and derives great force from being adopted, soon after the enactment of the law. It may be, and is presumed, that the legislative sense of its policy, and of its true scope and meaning, permeates the judiciary and controls its exposition. Having received at that time a construction which is for the time settled, accepted, and thereafter followed or acted upon, it has the sanction of the of the authority appointed to expound the law, just and correct conclusions, when reached, they are, moreover, within the strongest reasons on which founded the maxim of stare decisis. Such a construction is public given, and the subsequent silence of the legislature is strong evidence of acquiescence, though not conclusive. . . . (II Lewis Sutherland Statutory Construction, pp. 894, 895.) "Furthermore, when the phrase "public agricultural land" was used in section 1 of Article XII of the Constitution, it is presumed that it was so used with the same judicial meaning therefor given to it and therefor the meaning of the phrase, as used in the Constitution, includes residential lands and another lands of the public domain, but excludes mineral and timber lands. "Adoption of provisions previously construed ad. Previous construction by Courts. Where a statute that has been construed by the courts of the last resort has been reenacted in same, or substantially the same, terms, the legislature is presumed to have been familiar with its construction, and to have adopted it is part of the law, unless a contrary intent clearly appears, or a different construction is expressly provided for; and the same rule applies in the construction of a statute enacted after a similar or cognate statute has been judicially construed. So where words or phrases employed in a new statute have been construed by the court to have been used in a particular sense in a previous statute on the same subject, or one analogous to it, they are presumed, in the a absence of clearly expressed intent to the contrary, to be used in the same sense in the statute as in the previous statute." (59 C.J., 1061-1063.). "Legislative adoption of judicial construction. In the adoption of the code, the legislature is presumed to have known the judicial construction which have been placed on the former statutes; and therefore the reenactment in the code or general revision of provisions substantially the same as those contained in the former statutes is a legislative adoption of their known judicial constructions, unless a contrary intent is clearly manifest. So the fact that the revisers eliminated statutory language after it had been judicially construed shows that they had such construction in view." (59 C. J., 1102.)

"II. The lower court erred in not declaring null and void the sale of said land to the appellant (appellee). "Granting that the land in question has ceased to be a part of the lands of the public domain by reason of the long continuous,, public adverse possession of the applicant's predecessors in interest, and that the latter had performed all the conditions essential to a Government grant and were entitled to a certificate of title under section 48, subsection (b), of Commonwealth Act No. 141, still the sale of said land of December 8, 1938, to the applicant as evidenced by Exhibits B and C, was null and void for being contrary to section 5, Article XII of the Constitution, which reads as follows: "Save in cases of hereditary succession, no private agricultural land shall be transferred or assignedexcept to individuals, corporations, or associations qualified to acquire or hold lands of the public domain of the Philippines." "The applicant, being a Chinese citizen, is disqualified to acquire or hold lands of the public domain (section 1, Article XII of the Constitution; section 12, 22, 23, 33, 44, 48, Commonwealth Act No. 141 ), and consequently also disqualified to buy and acquire private agriculture land. "In view of the well settled judicial meaning of the phrase public agricultural land,' as hereinbefore demonstrated, the phrase 'private agricultural land,' as used in the above quoted provision, can only mean land of private ownership, whether agricultural, residential, commercial or industrial. And this necessarily so, because the phrase 'agricultural land used in the Constitution and in the Public Land Law must be given the same uniform meaning to wit, any land of the public domain or any land of private ownership, which is neither mineral or forestal. "A word or phrase repeated in a statute will bear the same meaning throughout the statute, unless a different intention appears. ... Where words have being long used in a technical sense and have been judicially construed to have a certain meaning, and have been adopted by the legislature as having a certain meaning prior to a particular statute in which they are used, the rule of construction requires that the words used in such statute should be construed according to the sense may vary from the strict literal meaning of the words." (II Sutherland, Statutory Construction., p. 758.) . "This interpretation is in harmony with the nationalistic policy, spirit and purpose of our Constitution and laws, to wit, `to conserve and develop the patrimony of the nation,' as solemnly enunciated in the preamble to the Constitution. "A narrow and literal interpretation of the phrase 'private agriculture land' would impair and defeat the nationalistic aim and general policy of our laws and would allow a gradual, steady, and unlimited accumulation in alien hands of a substantial portion of our patrimonial estates, to the detriment of our national solidarity, stability, and independence. Nothing could prevent the acquisition of a great portion or the whole of a city by subjects of a foreign power. And yet a city or urban area is more strategical than a farm or rural land. "The mere literal construction of section in a statute ought not to prevail if it is opposed to the intention of the legislature apparent by the statute; and if the words are sufficiently flexible to admit of some other construction it is to be adopted to effectuate that intention. The intent prevails over the letter, and the letter will, if possible be so read as to conform to the spirit of the act. While the intention of the legislature must be ascertained from the words used to express it, the manifest reason and the obvious purpose of the law should not be sacrificed to a liberal interpretation of such words." (II Sutherland, Stat. Construction, pp. 721, 722.) "We conclude, therefore, that the residential lot which the applicant seeks to register in his name falls within the meaning of private agricultural land as this phrase is used in our Constitution and, consequently, is not subject to acquisition by foreigners except by hereditary succession."

The argument hold water. It expresses a correct interpretation of the Constitution and the real intent of the Constitutional Convention. One of our fellow members therein, Delegate Montilla, said: The constitutional precepts that I believe will ultimately lead us to our desired goal are; (1) the complete nationalization of our lands and natural resources; (2) the nationalization of our commerce and industry compatible with good international practices. With the complete nationalization of our lands and natural resources it is to be understood that our God-given birthright should be one hundred per cent in Filipino hands. ... Lands and natural resources are immovable and as such can be compared to the vital organs of a person's body, the lack of possession of which may cause instant death or the shortening of life. If we do not completely nationalize these two of our most important belongings, I am afraid that the time will come when we shall be sorry for the time we were born. Our independence will be just a mockery, for what kind of independence are we going to have if a part of our country is not in our hands but in those of foreigner? (2 Aruego, The Framing of the Philippine Constitution, p. 592.). From the same book of Delegate Aruego, we quote: The nationalization of the natural resources of the country was intended (1) to insure their conservation for Filipino posterity; (2) to serve as an instrument of national defense, helping prevent the extension into the country of foreign control through peaceful economic penetration; and (3) to prevent making the Philippines a source of international conflict with the consequent danger to its internal security and independence. xxx xxx xxx

. . . In the preface to its report, the committee on nationalization and preservation of lands and other natural resources said; "International complications have often resulted from the existence of alien ownership of land and natural resources in a weak country. Because of this danger, it is best that aliens should be restricted in the acquisition of land and other natural resources. An example is afforded by the case of Texas. This state was originally province of Mexico. In order to secure its rapid settlements and development, the Mexican government offered free land to settlers in Texas. Americans responded more rapidly than the Mexicans, and soon they organized a revolt against Mexican rule, and then secured annexation to the United States. A new increase of alien landholding in Mexico has brought about the desire a prevent a repetition of the Texas affair. Accordingly the Mexican constitution of 1917 contains serious limitation on the right of aliens to hold lands and mines in Mexico. The Filipinos should profit from this example." xxx xxx xxx

It was primarily for these reasons that the Convention approved readily the proposed principle of prohibiting aliens to acquire, exploit, develop, or utilize agricultural, timber, and mineral lands of the public domain, waters minerals, coal, petroleum, and other mineral oils, all forces of potential energy, and other natural resources of the Philippines. For the same reasons the Convention approved equally readily the proposed principle of prohibiting the transfer of assignment to aliens of private agricultural land, save in the case of hereditary succession. (2 Aruego, Framing of the Philippine Constitution, pp. 604, 605, 606.). All the foregoing show why we, having been a member of the Constitutional Convention, agree with Solicitor General's position and concur in the result in this case, although we would go as far as the outright pronouncement that the purchase made by appelle is null and void. BRIONES, M., con quien estan conformes PARAS y TUASON, MM., disidente:

El solicitante en este expediente pide el registro del solar de que se trata como terreno de propiedad privada, y tan solo con caracter supletorio invoca las disposiciones del capitulo 8. de la Ley No. 2874 sobre terrenos publicos (Pieza de Excepciones, pag. 3.) Por su parte el Director de Terrenos se opone a la solicitud en virtud de tres fundamentos, a saber: (1) porque ni el solicitante ni sus predecesores en interes pueden demonstrar titulo suficiente sobre dicha parcela de terreno, no habiendose adquirido la misma ni por titulo de composicion con el Estado bajo la soberania de Espaa, ni por titulo de informacion posesoria bajo el Real Decreto de 13 de Febrero de 1894; (2) porque el citado solar es una porcion de los terrenos de dominio publico pertenecientes al Commonwealth de Filipinas; (3) porque siendo el solicitante un ciudadano chino, no esta capacitado bajo las disposiciones de la Constitucion de Filipinas para adquirir terrenos de caracter publico o privado (idem, pags. 5 y 6). Tanto el solicitante como el Director de Terrenos practicaron sus pruebas ante un arbitro nombrado por el Juzgado de Primera Instancia de Tayabas. Con vista de tales pruebas, el Juez Magsalin, del referido Juzgado, dicto sentencia a favor del solicitante, de la cual transcribimos las siguientes porciones pertinentes: La representacion del opositor Director de Terrenos trata de probar por medio del testimonio del Inspector del Buro de Terrenos que, el terreno objeto de la solicitud es parte del dominio publico y ademas el solicitante es ciudadano chino, pero dicho testigo afirmo que el terreno objeto de la presente solicitud es un solar situado dentro de la poblacion del municipio de Guinayanga, Tayabas, y en el mismo existe una casa de materiales fuertes y careciendo de merito esta oposicion debe desestimarse la misma. Por tanto, previa desestimacion de la oposicion del Director de Terrenos, se adjudica con sus mejoras la parcela de terreno objeto de la presente solicitud descrito en el plano Psu-109117, a favor del solicitante Oh Cho, ciudadano chino, mayor de edad, casado con Yee Shi, y residente en el municipio de Guinayanga, Tayabas, Islas Filipinas. (Decision, pag. 8, Record on Appeal.) De lo transcrito se infiere de una manera forzosa lo siguiente: (a) que el tribunal inferior desestimo de plano la oposicion del Director de Terrenos fundada en el supuesto de que el solar cuestionado es parte del dominio publico; (b) que el mismo tribunal rechazo el otro fundamento de la oposicion, esto es, que siendo el solicitante ciudadano chino esta incapacitado bajo nuestra Constitucion para adquirir terreno, ya publico, ya privado, aunque sea un solar de caracter urbano; (c) que, segun el fallo del Juez a quo, no siendo publico el terreno cuestionado, es necesariamente terreno privado. El Director de Terrenos, no estando conforme con la sentencia, apelo de ella para ante el Tribunal de Apelacion y hace en su alegato dos sealamientos de error, ninguno de los cuales pone en tela de juicio la calidad de privado del terreno cuestionado. El apelante no plantea ninguna cuestion de hecho; plantea solo una cuestion de derecho. Por eso que en la reconstitucion de este expediente el original se quemo durante la guerra no ha habido necesidad de incluir las notas taquigraficas ni las pruebas documentales, y de hecho hemos considerado y decidido este asunto sin dichas notas y pruebas. El abogado Constantino, del apelado, en la audiencia para la reconstitucion de los autos, hizo esta manifestacion; "In view also of the fact that the questions involved here are only questions of law, this representation waives the right to present the evidence presented in the trial court . . . ." Por su parte, el Procurador General, al explanar el caso en representacion del apelante Director de Terrenos, principia su alegato con la siguiente declaracion: This appeal is a test case. There are now several cases of exactly the same nature pending in the trial courts. Whether or not an alien can acquire a residential lot and register it in his name is the only question raised in this appeal from a decision of the Court of First Instance of Tayabas which sustained the affirmance and decreed the registration of the said property in favor of the applicant who, by his own voluntary admission, is a citizen of the Chinese Republic. This question is raised in connection with the constitutional provision that no private agricultural land shall be transferred or assigned to foreigners except in cases of hereditary succession. (Pags. 1, 2, alegato del apelante.)

Habiendose apelado de la sentencia para ante el Tribunal de Apelacion por que se elevo este asunto al Tribunal Supremo, ante el cual ya estaba pendiente aun antes de la guerra, y sin resolverse durante la ocupacion japonesa? La razon no consta especificamente en autos, pero como no se trata de una alzada del Tribunal de Apelacaion a la Corte Suprema, la unica explicacion que cabe es que aquel, la percatarse de que en la apelacion no se planteaba mas que una cuestion de derecho, ordeno, como era de rigor, el traslado del asunto a esta Corte por ser de su jurisdiccion y competencia. Hemos estimado necesario sentar las anteriores premisas porque las mismas sirven de base a la argumentacion que a seguida vamos a desenvolver para fundamentar esta disidencia. I. De lo expuesto resulta evidente que el Director de Terrenos se ha opuesto al registro solicitado, entre otros fundamentos, porque el terreno es publico; que el tribunal inferior ha desestimado este fundamento por "carecer de merito," fallando que el terreno es privado; que el Director de Terrenos, en su apelacion ante nosotros, no cuestiona esta conclusion del Juez a quo, sino que dando por admitido que el terreno es de propiedad privada, arguye, sin embargo, que bajo la seccion 5, Articulo XII de la Constitucion de Filipinas el solicitante, por ser extranjero, no puede adquirir terreno agricula privado, estando incluido en este concepto un solar urbano como el de que se trata en este expediente. Planteado el asunto en tales terminos puede esta Corte considerar y resolver un punto no contendido entre las partes un punto que esta firme y definitivamente resuelto y no es objeto de apelacion? Dicho de otra manera: puede esta Corte, como hace la mayoria en su opinion, revocar una conclusion del tribunal-inferior que no esta discutida en el alegato del apelante? Podemos, en buena ley procesal, declarar publico el terreno en cuestion por nuestra propia iniciativa, cuando el mismo Procurador General, que representa al Estado, admite en su alegato el caracter privado del solar, y solo suscita una cuestion, de derecho, a saber: que bajo nuestra Constitucion ningun acto traslativo de dominio a favor de un extranjero es valido, asi se trata de predio urbano, porque la frase "terreno agricola privado" qe se contiene en la Constitucion abarca no solo las fincas rusticas sino tambien las urbanas? Y, sobre todo, podemos, en equidad y justicia, considerar y revisar un punto que no solo no esta discutido por las partes, pues lo dan por admitido y establecido, sino que es de derecho y de hecho al propio tiempo? Que base tenemos para hacerlo cuando no tenemos delante las pruebas tanto testificales como documentales? Nuestra contestacion es, en absoluto, negativo. La competencia de esta Corte para revisar las sentencias de los tribunales inferiores, de las cuales se ha interpuesto apelacion, se basa en el principio de que dicha competencia, en su ejercicio, tiene que limitarse a las cuestiones controvertidas, y esto se determina mediante el sealamiento de errores que el apelante hace en su alegato. El articulo 19 del antiguo reglamento de los procedimientos en este Tribunal Supremo decia en su primer parrafo lo siguiente: Anexo al alegato del apelante y en pliego separado, se acompaara una relacion de los errores de derecho que han de discutirse. La especificacion de cada uno de estos errores se hara por parrafos separados, con toda claridad, de una manera concisa, y sin incurrir en repeticiones, y seran numerados por orden correlativo. El articulo 20 del mismo reglamento preceptuaba: Ningun error de derecho fuera del relativo a competencia sobre la materia de un litigio, sera tomado en consideracion como no se halle puntualizado en la relacion de los errores y presentado como uno de los fundamentos en el alegato. Interpretando estas disposiciones reglamentarias, la Corte hizo en el asunto de Santiago contra Felix (24 Jur. Fil., 391), los siguientes pronunciamientos doctrinales: 1. APELACION; EFECTO DE DEJAR DE PRESENTAR RELACION DE ERRORES; REGLA FIRMEMENTE ESTABLECIDA. Es regla establecida por la jurisprudencia de los Tribunales de estas Islas, en virtud de repetidas y uniformes sentencias de esta Corte, la de que si en una apelacione el recurrente dejare de hacer sealamiento de los errores en que haya incurrido el Tribunal inferior, y se limitare a discutir cuestiones de hecho en general, no es posible que este Tribunal pueda considerar ni revisar la resolucion adversa a la parte apelante, por el motivo de haberse dictado contra

la ley y el peso de las pruebas, sino que es necesario que se seale y se especifique el error o errores que determinaron la decision apelada que el apelante califica de ilegal e injusta. 2. Id.; Id.; Regla Igual a la Adoptada por los Tribunales de los Estados Unidos. Igual doctrina legal se halla en observancia en los Tribunales de los Estados Unidos de America del Norte, toda vez que una manifestacion general de que el Juzgado erro en dictar sentencia a favor de una de las partes, no es suficiente como base para que la Corte pueda revisar la sentencia apelada, pues que a no ser que la apreciacion hecha por un Juez de los hechos alegados y probados en juicio sea manifestamente contraria al resultado y peso de las pruebas, el Tribunal de alzada suela aceptar el juicio y criterio del Juez sobre las cuestiones de hecho, y no procede revocar sin motivo fundado la sentencia apelada. (Enriquez contraEnriquez, 8 Jur. Fil., 574; Capellania de Tambobong contra Antonio, 8 Jur. Fil., 693; Paterno contra la Ciudad de Manila, 17 Jur. Fil., 26)" (Santiago contra Felix, 24 Jur. Fil., 391.) Esta doctrina se reitero posteriormente en los siguientes asuntos: Tan Me Nio contra Administrador de Aduanas, 34 Jur. Fil., 995, 996; Hernaez contra Montelibano, 34 Jur. Fil., 1011. La regla 53, seccion 6, del actual reglamento de los tribunales, dispone lo siguiente: SEC. 5. Questions that may be decided. No error which does not affect the jurisdiction over the subject matter will be considered unless stated in the assignment of errors and properly argued in the brief, save as the court, at its option, may notice plain errors not specified, and also clerical errors. No se dira que la cuestion de si el terreno cuestionado es publico o privado, considerada y resuelta por la mayoria en su decision sin previo sealamiento de error ni apropiada argumentacion en el alegato del Procurador General, esta comprendida entre las salvedades de que habla la regla arriba transcrita porque ni afecta a la jurisdiccion sobre la materia del litigio, ni es un "plain error," o "clerical error." Se notara que en el antiguo reglamento no habia eso de "plain errors not specified" (errores patentes o manifiestos no especificados en el alegato). Pero cabe invocar esta reserva en el caso que nos ocupa Indudablemente que no, por las siguientes razones: (a) los autos no demuestran que el Juez a quo cometio un error patente y manifiesto al declarar en su sentencia que el terreno no es publico sino privado; no tenemos mas remedio que aceptar en su faz la conclusion del Juez sentenciador sobre este respecto por la sencilla razon de que no tenemos ante nosotros las pruebas ni testificales ni documentales, y, por tanto, no hay base para revisar, mucho menos para revocar dicha conclusion, habiendose interpretado esta reserva en el sentido de que solo se puede tomar "conocimiento judicial del error palpable con vista de los autos y procedimientos"; (b) aun admitiendo por un momento, a los efectos de la argumentacion, que Su Seoria el Juez padecio error palpable al sentar dicha conclusion, como quiera que el Procurador General no suscita la cuestion en su alegato debe entenderse que ha renunciado a su derecho de hacerlo, optando por fundamentar su caso en otros motivos y razones; por tanto, no estamos facultados para considerar motu proprio el supuesto error, pues evidentemente no se trata de un descuido u oversight del representante del Estado, sino de una renuncia deliberada, y la jurisprudencia sobre el particular nos dice que "el proposito subyacente, fundamental de la reserva en la regla es el de prevenir el extravio de la justicia en virtud de un descuido." He aqui algunas autoridades pertinentes: Purpose of exception as to plain errors. The proviso in the rule requiring assignments of error, permitting the court, at its option, to notice a plain error not assigned, "was and in intended, in the interest of justice, to reserve to the appellate court the right, resting in public duty, to take cognizance of palpable error on theface of the record and proceedings, especially such as clearly demonstrate that the suitor has no cause of action." Santaella vs. Otto F. Lange Co. (155 Fed., 719, 724; 84 C. C. A., 145). The rules does not intend that we are to sift the record and deal with questions which are of small importance, but only to notice errors which are obvious upon inspection and of a controlling character. The underlying purpose of this reservation in the rule is to prevent the miscarriage of justice from oversight. Mastvs. Superior Drill Co. (154 Fed., 45, 51; 83 C. C. A. 157).

II. Hasta aqui hemos desarrollado nuestra argumentacion bajo el supuesto de que la calidad de privado del terreno litigioso no es controversia justiciable en esta instancia por no estar suscitada la cuestion en el alegato del Procurador General ni ser materia de disputa entre las partes en la apelacion pendiente ante nosotros; por lo que, consiguientemente, no estamos facultados para revisar, mucho menos revocar motu proprio la conclusion del tribunal a quo sobre el particular. Ahora vamos a laborar bajo otro supuesto el de que el Procurador General haya hecho el correspondiente sealamiento de error y la cuestion este, por tanto, propiamente planteada ante esta Corte Suprema para los efectos de la revision. La pregunta naturalmente en orden es la siguiente: cometio error el Juez a quo al declarar y conceptuar como privado el terreno en cuestion, o es, por el contrario, acertada su conclusion a este respecto? Somos de opinion que el Juez no cometio error, que el terreno de que se trata reune las condiciones juridicas necesarias para calificarlo como privado y diferenciarlo de una propiedad de dominio publico, y que, por tanto, el solicitante tiene sobre la propiedad un titulo confirmable bajo las disposiciones de la Ley de Registro de Terrenos No. 496. Afirmase en la decision de la mayoria que el solicitante no ha podido demostrar que el o cualquiera de sus causantes en derecho adquirio el lote del Estado mediante compra o concesion bajo las leyes, ordenanzas y decretos promulgados por el Gobierno Espaol en Filipinas, o en virtud de los tramites relativos a informacion posesoria bajo la ley hipotecaria en tiempo de Espaa. De esto la mayoria saca la conclusion de que el terreno cuestionado no es privado porque, segun su criterio, "todos los terrenos que no fueron adquiridos del Gobierno (Gobierno Espaol, se quiere decir), ya mediante compra, ya por concesion, pertenecen al dominio publico"; y citando como autoridad el asunto clasico de Cario contra el Gobierno Insular la ponencia no admite mas excepcion a la regla que el caso en que un terreno ha estado en la posesion del ocupante y de sus predecesores en interes desde tiempo inmemorial, pues semejante posesion justificaria la presuncion de que el terreno nunca habia sido parte del dominio publico, o que habia sido propiedad privada aun antes de la conquista espaola." Lo que, en primer lugar, no parece correcto es la seguridad con que en la ponencia se afirma que el terreno no se adquirio bajo la soberania espaola en virtud de cualquiera de los modos conocidos en la legislacion de entonces, pues como no tenemos delante las pruebas, no hay naturalmente manera de comprobar la certeza de la proposicion. Si se tiene en cuenta que el Director deTerrenos se opuso a la solicitud de registro por el fundamento de que el terreno es de dominio publico, y que el tribunal inferior desestimo este fundamento, la presuncion es que la calidad de privado del terreno se probo satisfactoriamente, presuncion que queda robustecida si se considera que el Procurador General, al sostener la apelacion del Gobierno, no discute ni cuestiona en su alegato la conclusion de que el referido terreno es de propiedad particular. Por otro lado, la mayoria parece dar un caracter demasiado absoluto y rigido a la proposicion de que "todos los terrenos que no fueron adquiridos del Gobierno (en tiempo de Espaa), mediante compra o por concesion, pertenecen al dominio publico." Interpretando estrictamente la ley, esta Corte Suprema denego el registro solicitado en el celebre asunto de Cario contra el Gobierno Insular que cita la mayoria en su opinion, por eso mismo que se acentua en la ponencia por el fundamento de que Cario no pudo demostrar titulo de compra, concesion o informacion posesoria expedido por el Gobierno en tiempo de Espaa, siendo por consiguiente el terreno parte del dominio publico. Pero al elevarse el asunto en grado de apelacion a la Corte Suprema de los Estados Unidos, la misma revoco la sentencia de esta Corte, declarando el terreno como propiedad privada y decretando su registro a nombre del solicitante. En la luminosa ponencia del Magistrado Holmes se sientan conclusiones que proclama el espiritu liberal de aquel gran jurista y reafirman con vigor democratico los derechos de propiedad de los nativos de estas Islas sobre sus predios en contra del concepto y teoria feudales de que la Corona de Espaa era la duea absoluta hasta del ultimo palmo de tierra y de que ningun habitante podia ser dueo de nada, a menos que tuviese en sus manos un titulo o papel expedido por aquel Gobierno. He aqui lo que dice el Magistrado Holmes: We come, then, to the question on which the case was decided below namely, whether the plaintiff owns the land. The position of government, shortly stated, is that Spain assumed, asserted, and had title to all the land in the Philippines except so far it saw fit to permit private titles to be acquired; that there was no prescripcion against the Crown, and that, if there was, a decree of June 25, 1880, required registration within a limited time to make the title good; that the plaintiff's land was not registered, and therefore became, if it was not always, public land; that the United States succeeded to the title of Spain, and so that the plaintiff has no rights that the Philippine Government is bound to respect.

If we suppose for the moment that the government's contention is so far correct that the Crown of Spain in form asserted a title to this land at the date of the treaty of Paris, to which the United States succeeded, it is not to be assumed without argument that the plaintiff's case is at an end. It is true that Spain, in its earlier decrees,"embodied the universal feudal theory that all lands were held from the Crown, and perhaps the general attitude of conquering nations toward people not recognized as entitled to the treatment accorded to those in the same zone of civilization with themselves. It is true, also that, in legal theory, sovereignty is absolute, and that, as against foreign nations, the United States may assert, as Spain asserted, absolute power. But it does not follow that, as against the inhabitants of the Philippines, the United States asserts that Spain had such power. When theory is left on one side, sovereignty is a question of strength, and may vary in degree. How far a new sovereign shall insist upon the theoretical relation of the subjects to the head in the past, and how far it shall recognize actual facts, are matters for it to decide. (U. S. Supreme Court Reports, Vol. 212, p. 596.) Mas adelante se dice lo siguiente en la citada sentencia de la Corte Suprema Federal: It is true that, by section 14, the Government of the Philippines is empowered to enact rules and prescribe terms for perfecting titles to public lands were some, but not all, spanish conditions has been fulfilled, and to issue patents to natives for not more than 16 hectares of public lands actually occupied by the native or his ancestors before August 13, 1898. But this section perhaps might be satisfied if confined to cases where the occupation was of land admitted to be public land, and had not continued for such a length of time and under such circumstances as to give rise to the understanding that the occupants were owners at that date.We hesitate to suppose that it was intended to declare every native who had not a paper title a trespasser, and to set the claims of all the wilder tribes afloat. xxx xxx xxx

If the applicant's case is to be tried by the law of Spain, we do not discover such clear proof that it was bas by that law as to satisfy us that he does not own the land. To begin with, the older decrees and laws cited by the counsel for the plaintiff in error seem to indicate pretty clearly that the natives were recognized as owning some lands, irrespective of any royal grant. In other words, Spain did not assume to convert all the native inhabitants of the Philippines into trespassers or even into tenants at will. For instance, Book 4, title 12, Law 14 of the Recopilacion de Leyes de las Indias, cited for a contrary conclusion in Valenton vs.Murciano (3 Phil., 537), while it commands viceroys and others, when it seems proper, to call for the exhibition of grants, directs them to confirm those who hold by good grants or justa prescripcion. It is true that it begins by the characteristic assertion of feudal overlordship and the origin of all titles in the King or his predecessors. That was theory and discourse. The fact was that titles were admitted to exist that owed nothing to the powers of Spain beyond this recognition in their books. Prescription is mentioned again in the royal cedula of October 15, 1754, cited in (3 Phil., 546): "Where such possessors shall not be able to produce title deeds, it shall be sufficient if they shall show that ancient possession, as a valid title by prescription." It may be that this means possession from before 1700; but, at all events, the principle is admitted. As prescription, even against Crown lands, was recognized by the laws of Spain, we see no sufficient reason for hesitating to admit that it was recognized in the Philippines in regard to lands over which Spain had only a paper sovereignty. It is true that the language of articles 4 and 5 attributes title to those "who may prove" possession for the necessary time, and we do not overlook the argument that this means may prove in registration proceedings. It may be that an English conveyancer would have recommended an application under the foregoing decree, but certainly it was not calculated to convey to the mind of an Igorot chief the notion that ancient family possessions were in danger, if he had read every word of it. The words "may prove" (acrediten), as well, or better, in view of the other provisions, might be taken to mean when called upon to do so in any litigation. There are indications that registration was expected from all, but none sufficient to show that, for want of it, ownership actually gained would be lost. The effect of the proof, wherever made, as not to confer title, but simply to establish it, as already conferred by the decree, if not by earlier law. The royal decree of February 13, 1894, declaring forfeited titles that were capable of adjustment under the decree of 1880, for which adjustment had not been sought, should

not be construed as a confiscation, but as the withdrawal of a privilege. As a matter of fact, the applicant never was disturbed. This same decree is quoted by the court of land registration for another recognition of the common-law prescription of thirty years as still running against alienable Crown land. xxx xxx xxx

. . . Upon a consideration of the whole case we are of opinion that law and justice require that the applicant should be granted what he seeks, and should not be deprived of what, by the practice and belief of those among whom he lived, was his property, through a refined interpretation of an almost forgotten law of Spain. (U. S. Supreme Court Reports, Vol. 212, pp. 597-599.)

Land Titles And Deeds Case Digest: Oh Cho V. Director Of Lands (1946)
G.R. No. L-48321. August 31, 1946 Lessons Applicable: (Land Titles and Deeds) Sec. 2 Art. XII, 1987 Constitution FACTS:

Oh Cho is appealing from the rejection of his application based on disqualification as alien (Chinese) from acquiring lands of the public domain. He had open, continuous, exclusive and notorious possession of the lot from 1880 to filing of the application forregistration on January 17, 1940

ISSUE: W/N Oh Cho entitled to decree or registration of the lot.

HELD: NO.

GR: All lands that were not acquired from the Government, either by purchase or by grant below to the publicdomain Exception: in the possession of an occupant and of his predecessors in interest since time immemorial, for such possession would justify the presumption that the land had never been part of the public domain or that it had been a private property even before the Spanish conquest. (Cario v. Insular Government) - not applicable since only from 1880

His immediate possesor failed to comply with the condition precedent to apply for the registration of the land of which they had been in possession at least since July 26, 1894 so what was transferred to Oh Cho is merely possesory right which cannot ripen to ownership by prescription (aliens disqualified to own by prescription)