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Power to open and close roads

1. Who controls and regulates the use of roads
G.R. No. 155688, November 28, 2007, THIRD DIVISION (Austria-Martinez, J.)
Galileo Figuracion was the owner of Lot No. 899-D-2 situated in Cebu City. Cebu City
expropriated Lot No. 899-D-2, consisting of 474 sq. m. and turned the same into a portion of N. Escario
Street, connecting the Capitol Building to Gorordo Avenue and U.P. Junior College. Cebu City paid and
was issued TCT No. 49454. In Resolution No. 330, the Cebu City Sangguniang Panlungsod approved the
reconveyance to Isagani Figuracion, successor-in-interest of Galileo Figuracion, of an unused portion of
Lot No. 899-D-2, designated as Lot No. 899-D-2-A. Cebu City Mayor Tomas Osmena executed in favor of
Isagani a deed of sale over the subject lot. A TCT was issued in the name of Isagani for the said lot.
It appearing that Sps. Libi had been using the subject lot, and refused to vacate it despite
demand. Figuracion et al., as successors-in-interest of Isagani Figuracion, filed against respondents a
complaint for unlawful detainer. The MTC declared petitioners entitled to possession of the subject lot and
was affirmed by the RTC. Sps. Libi filed a complaint for easement, be granted a right of way over the
subject lot and later shifted to a different cause of action which is the annulment of the said resolutions,
the deed of sale in favor of Isagani, and the TCT. Cebu City defended the reconveyance to Isagani
Figuracion of the subject lot considering that it was not utilized in the construction of N. Escario Street and
had long been vacant.
When private land is expropriated for a particular public use, and that particular public use is
abandoned, does the land so expropriated return to its former owner?
NO. As a general rule, local roads used for public service are considered public property under
the absolute control of Congress; hence, local governments have no authority to control or regulate their
use. However, under Section 10, Chapter II of the Local Government Code, Congress delegated to
political subdivisions some control of local roads. Moreover, through the Revised Charter of Cebu City
(Republic Act No. 3857), Congress specifically delegated to said political subdivision the following
authority to regulate its city streets.
It depends upon the character of the title acquired by the expropriator, whether it be the State, a
province, a municipality, or a corporation which has the right to acquire property under the power of
eminent domain. If, for example, land is expropriated for a particular purpose, with the condition
that when that purpose is ended or abandoned the property shall return to its former owner, then,
of course, when the purpose is terminated or abandoned the former owner reacquires the
property so expropriated. If, for example, land is expropriated for a public street and the expropriation is
granted upon condition that the city can only use it for a public street, then, of course, when the city
abandons its use as a public street, it returns to the former owner, unless there is some statutory
provisions to the contrary. Many other similar examples might be given. If, upon the contrary, however,
the decree of expropriation gives to the entity a fee simple title, then, of course, the land becomes
the absolute property of the expropriator, whether it be the State, a province, or municipality, and
in that case the non-user does not have the effect of defeating the title acquired by the
expropriation proceedings.
In the present case, there exists no doubt that Cebu City repudiated its right to use the subject lot
for other public purpose; and instead, recognized the right of the former owner or his successor-in-interest
to repurchase the same. In exercise of its discretion to declare a city street or part thereof abandoned, the
Cebu City council unanimously issued Resolutions No. 330 and No. 2345, declaring the subject lot vacant
and available for conveyance. Sps. Libi acknowledge that the subject lot was not included in the
construction of Escario Street.
2. Factors to consider in vacating a street


Antonio Favis owned a lot. His means of egress and ingress from his residence to a public street
was donated by Assumption Convent Inc. to the City of Baguio for road purposes. Adjacent there to is lot
25 which is leased to Shell by the City where a service station is constructed. By virtue of a City
Resolution, Lot B consisting of 100sqm was also leased to Shell, whereby a bigger gasoline station be
constructed by the latter.
Favis protested the lease because it reduced the width of Lapu-lapu Street, thus (1) his entrance
and exit to and from his property has become very difficult; (2) it became impossible for his big trucks and
trailers to turn around; (3) it made the area around it very dangerous in case of fire; and (4) it has caused
perpetual danger, annoyance, irreparable loss and damage not only to the public in general but especially
to Favis himself. In response, the City approved Resolution 215-61, converting the remaining 5 m.-width
portion of Lapu-lapu street into an alley.
Unsatisfied with the City's response, Favis commenced suit to annul the lease contract for the
reasons mentioned above and also because of the following: 1) the power to close streets should be
effected thru an ordinance and not thru a resolution; 2) the City failed to give notice to owners of
contiguous properties whose rights might be affected; and 3) the city council of Baguio and municipal
bodies in general, have no inherent right to vacate or withdraw a street from public use, either in whole or
in part, thus there must be a specific grant by the legislative body to the city or municipality concerned.
WON a municipal corporation such as the City of Baguio has the right to a street for public use.
YES. The court ruled that the city is empowered to close a city street as embodied in Section
2558 of the Baguio Charter, thus: To provide for laying out, opening, extending, widening, straightening,
closing up in whole or in part... upon public or private property. The circumstances in some cases may
be such as to give a right to damages to a property owner, even though his property does not abut on the
closed section. But to warrant recovery in any such case the property owner must show that the situation
is such that he has sustained special damages differing in from those sustained by kind and not merely in
degree, the public generally. There was not private right that has been invaded. No special damage or
damages will incur by reason of the closing of a portion of Lapu-lapu street at its dead-end. His property
does not about that street. Costs against plaintiff-appellant.
***Ulep Notes
Favis contentions are unmeritorious. Reasons:
1) The embattled resolutions are just as good as ordinances. The objection is only of forms, not of
2) Notice is not needed because the City Charter requires notice only when the ordinance in question
also calls for an assessment regarding a project to be implemented. In this case, no assessment was
called for and was in fact, not necessary.
3) While Favis is correct that municipal bodies have no inherent right to close a public street, still the City
Charter does authorize Baguio City to close public roads in its discretion absent a plain case of abuse, or
fraud or collision. Faithfulness in public trust is presumed. Public interest is served thru 1) savings from
cost of road maintenance; and 2) gaining by the City of some income thru leasing.
4) Favis' private rights were not invaded. Lapu-lapu street does not abut his parcel of land. The general
rule is that one whose property does not abut on the closed section of a street has no right to
compensation for the closing or vacation of the street, if he still has reasonable access to the general
system of streets. The circumstances in some cases may be such as to give a right to damages to a
property owner, even though his property does not abut on the closed section. But to warrant recovery in
any such case the property owner must show that the situation is such that he has sustained special
damages differing in from those sustained by kind, and not merely in degree, the public generally.

3. Other illustrative cases

G.R. No. 78673, March 18, 1991, FIRST DIVISION, CRUZ, J.

On September 19, 1969, the Provincial Board of Catanduanes adopted Resolution No. 158 .
Petitioner filed on December 29, 1978, a complaint with the CFI of Catanduanes for "Restoration of Public
Road and/or Abatement of Nuisance, Annulment of Resolutions and Documents with Damages." He
alleged that the land fronting his house was a public road owned by the Province of Catanduanes in its
governmental capacity and therefore beyond the commerce of man. He contended that Resolution No.
158 and the deeds of exchange were invalid, as so too was the closure of the northern portion of the said
The CFI held that the land in question was not a declared public road but a mere "passageway"
or "short-cut," nevertheless sustained the authority of the provincial board to enact Resolution No. 158
under existing law. Appeal was taken to the respondent court, which found that the road was a public
road and not a trail but just the same also upheld Resolution 158. It declared:
Pursuant to Republic Act No. 5185, municipal authorities can close, subject to the
approval or direction of the Provincial Board, thoroughfares under Section 2246 of the
Revised Administrative Code. Although in this case the road was not closed by the
municipality of Catanduanes but by the provincial board of Catanduanes, the closure,
nevertheless, is valid since it was ordered by the approving authority itself. However,
while it could do so, the provincial government of Catanduanes could close the road only
if the persons prejudiced thereby were indemnified, Section 2246 of the Revised
Administrative Code being very explicit on this.
Petitioner insists that Sec. 2246 is not applicable because Resolution No. 158 is not an order for
the closure of the road in question but an authority to barter or exchange it with private properties. He
maintains that the public road was owned by the province in its governmental capacity and, without a
prior order of closure, could not be the subject of barter. Control over public roads, he insists, is with
Congress and not with the provincial board. CA found the closure valid but the petitioners should be
compensated due to the prejudice caused by the closure of the road.
WON the provincial board can validly close the road and if so, the petitioner be
compensated for being prejudiced by such closure
Yes, the closure is as plain as day except that the petitioner, with the blindness of those who will
not see, refuses to acknowledge it, the Court has little patience with such puerile arguments. The
authority of the provincial board to close that road and use or convey it for other purposes is derived from
the following provisions of Republic Act No. 5185 in relation to Section 2246 of the Revised Administrative
Code2. Property thus withdrawn from public servitude may be used or conveyed for any purpose for which
other real property belonging to the municipality might be lawfully used or conveyed.
Such power to vacate a street or alley is discretionary and the discretion will not ordinarily be
controlled or interfered with by the courts, absent a plain case of abuse or fraud or collusion. Faithfulness
Providing as follows: RESOLVED, as it is hereby resolved, to close the old road leading to the new Capitol Building of this
province to traffic effective October 31, 1969, and to give to the owners of the properties traversed by the new road equal area as per
survey by the Highway District Engineer's office from the old road adjacent to the respective remaining portion of their properties.

RESOLVED FURTHER, that the Honorable Provincial Governor be, as he is hereby authorized to sign for and in behalf of the
province of Catanduanes, the pertinent Deed of Exchange and or other documents pertaining thereto
Section 2246. Authority to close thoroughfare. - With the prior authorization of the Department Head, a municipal council may
close any municipal road, street, alley, park, or square; but no such way or place aforesaid or any part thereof, shall be closed without
indemnifying any person prejudiced thereby.

to the public trust will be presumed. So the fact that some private interests may be served incidentally will
not invalidate the vacation ordinance.
Furthermore, the petitioner should not be compensated for there was no prejudice caused. The
lower court found the petitioner's allegation of injury and prejudice to be without basis because he had
"easy access anyway to the national road, for in fact the vehicles used by the Court and the parties during
the ocular inspection easily passed and used it, reaching beyond plaintiff's house." However, the Court of
Appeals ruled that he "was prejudiced by the closure of the road which formerly fronted his house. He and
his family were undoubtedly inconvenienced by the loss of access to their place of residence for which we
believe they should be compensated."
As held in the case of Favis the general rule is that one whose property does not abut on the
closed section of a street has no right to compensation for the closing or vacation of the street, if he still
has reasonable access to the general system of streets. The circumstances in some cases may be such
as to give a right to damages to a property owner, even though his property does not abut on the closed
section. But to warrant recovery in any such case the property owner must show that the situation is such
that he has sustained special damages differing in kind, and not merely in degree, from those sustained
by the public generally. Following the doctrine, the petitioner is not entitled to damages because the injury
he has incurred, such as it is, is the price he and others like him must pay for the welfare of the entire
community (Damnum absque injuria).
Way back in January 5, 1979, the Metropolitan Manila Commission (MMC) enacted MMC
Ordinance 79-02, which allowed a certain city and municipal public streets and roads to be sites for many
vendors applied for licenses to conduct such activities in said streets.
On December 20, 1987, the RTC of Caloocan City ruled that the streets were of public dominion
and ordered the demolition of said stalls. But Mayor Martinez, who had advocated the demolition of the
said stalls, has been replaced by Mayor Asistio. Mayor Asistio did not carry out the order of the RTC, for
humanitarian reasons. Francisco Dacanay, a concerned citizen and a resident along Heroes del 96
street, filed a petition for mandamus to compel the Mayor, thru the City Engineer, to remove the stalls.
WON properties for public use may be leased for private individuals
There is no doubt that the disputed areas from which the private respondents market stalls are
sought to be evicted are public streets. A public street is property for public use hence outside the
commerce of man (Arts. 420, 424, Civil Code). Being outside the commerce of man, it may not be
the subject of lease or other contract.
As the stallholders pay fees to the City Government for the right to occupy portions of the public
street, the City Government, contrary to law, has been leasing portions of the streets to them. Such
leases or licenses are null and void for being contrary to law. The right of the public to use the city
streets may not be bargained away through contract. The interests of a few should not prevail over
the good of the greater number in the community whose health, peace, safety, good order and general
welfare, the respondent city officials are under legal obligation to protect.
The Executive Order issued by Acting Mayor Robles authorizing the use of Heroes del '96 Street
as a vending area for stallholders who were granted licenses by the city government contravenes the
general law that reserves city streets and roads for public use. Mayor Robles' Executive Order may not
infringe upon the vested right of the public to use city streets for the purpose they were intended to serve:
i.e., as arteries of travel for vehicles and pedestrians. As early as 1989, the public respondents had
started to look for feasible alternative sites for flea markets. They have had more than ample time to
relocate the street vendors.

Macasiano vs. Diokno

Respondent Municipality passed Ordinance No. 86 which authorized the closure of J.Gabriel,
G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena Streets and the establishment of a flea market
thereon. This was passed pursuant to MMC Ordinance No.2 and was approved by the Metropolitan
Manila Authority on July 20, 1990. On August 8, 1990, respondent municipality and Palanyag entered into
a contract agreement whereby the latter shall operate, maintain & manage the flea markets and/or
vending areas in the aforementioned streets with the obligation to remit dues to the treasury of the
municipal government of Paraaque. On September 13, 1990 Brig. Gen. Macasiano ordered the
destruction and confiscation of stalls along G.G. Cruz & Gabriel Street in Baclaran. He also wrote a letter
to Palanyag ordering the destruction of the flea market. Hence, respondent filed a joint petition praying for
preliminary injunction. The trial court upheld the assailed Ordinance and enjoined petitioner from
enforcing his letter-order against Palanyag.
WON the ordinance issued by the municipal council of Paraaque authorizing the lease & use of
public streets/thoroughfares as sites for the flea market is valid.
The ordinance or resolution authorizing the lease and use of public streets or thoroughfares as
sites for a flea market is invalid. Property for public use, in the provinces, cities and municipalities,
consists of the provincial roads, city streets, the squares, fountains, public waters, promenades, and
public works for public service paid for by said provinces, cities or municipalities. All other property
possessed by any of them is patrimonial and shall be governed by this Code, without prejudice to the
provisions of special laws. Based on the foregoing, J. Gabriel G.G. Cruz, Bayanihan, Lt. Garcia Extension
and Opena streets are local roads used for public service and are therefore considered public properties
of respondent municipality. Properties of the local government which are devoted to public service are
deemed public and are under the absolute control of Congress.
Hence, local governments have no authority whatsoever to control or regulate the use of public
properties unless specific authority is vested upon them by Congress. Even assuming, in gratia
argumenti, that respondent municipality has the authority to pass the disputed ordinance, the same
cannot be validly implemented because it cannot be considered approved by the Metropolitan Manila
Authority due to non-compliance by respondent municipality of the conditions imposed by the former for
the approval of the ordinance.
Further, it is of public notice that the streets along Baclaran area are congested with people,
houses and traffic brought about by the proliferation of vendors occupying the streets. To license and
allow the establishment of a flea market along J. Gabriel, G.G. Cruz, Bayanihan, Lt. Garcia Extension and
Opena streets in Baclaran would not help in solving the problem of congestion. Verily, the powers of a
local government unit are not absolute. They are subject to limitations laid down by toe Constitution and
the laws such as our Civil Code.
Moreover, the exercise of such powers should be subservient to paramount considerations of
health and well-being of the members of the community. Every local government unit has the sworn
obligation to enact measures that will enhance the public health, safety and convenience, maintain peace
and order, and promote the general prosperity of the inhabitants of the local units. Based on this
objective, the local government should refrain from acting towards that which might prejudice or adversely
affect the general welfare.
The parcel of land sought to be registered was originally a portion of M. Borces Street, Mabolo,
Cebu City. The City Council of Cebu, through a resolution, declared the terminal portion of M. Borces
Street, Mabolo, Cebu City, as an abandoned road, the same not being included in the City Development

Plan. Subsequently, the City Council of Cebu passed a resolution authorizing the Acting City Mayor to
sell the land through a public bidding. Pursuant thereto, the lot was awarded to the herein petitioner being
the highest bidder and through the Acting City Mayor, he executed a deed of absolute sale to the herein
Assistant Provincial Fiscal of Cebu filed a motion to dismiss the application on the ground that
the property sought to be registered being a public road intended for public use is considered part of the
public domain and therefore outside the commerce of man.
Does the City Charter of Cebu City (Republic Act No. 3857) under Section 31, paragraph 34, give
the City of Cebu the valid right to declare a road as abandoned?
Held: Yes.
The pertinent portions of the Revised Charter of Cebu City provides:
"Section 31. Legislative Powers. Any provision. of law and executive order to the contrary
notwithstanding, the City Council shall have the following legislative powers:
(34) x x x; to close any city road, street or alley, boulevard, avenue, park or square. Property thus
withdrawn from public servitude may be used or conveyed for any purpose for which other real
property belonging to the City may be lawfully used or conveyed."
From the foregoing, it is undoubtedly clear that the City of Cebu is empowered to close a city road
or street. In the case of Favis vs. City of Baguio, where the power of the City Council of Baguio City to
close city streets and to vacate or withdraw the same from public use was similarly assailed, this Court
"5. So it is, that appellant may not challenge the city council's act of withdrawing a strip of LapuLapu Street at its dead end from public use and converting the remainder thereof into an alley. These are
acts well within the ambit of the power to close a city street. The city council, it would seem to us, is the
authority competent to determine whether or not a certain property is still necessary for public use. "
Such power to vacate a street or alley is discretionary. And the discretion will not ordinarily be
controlled or interfered with by the courts, absent a plain case of abuse or fraud or collusion. Faithfulness
to the public trust will be presumed. So the fact that some private interests may be served incidentally will
not invalidate the vacation ordinance."
G.R. NO. 148357, June 30, 2006, SECOND DIVISION, (CORONA, J.)
Petitioner Aniano A. Albon filed with the Regional Trial Court assailed the constitutionality of
Ordinance No. 59. He claimed that it was unconstitutional and unlawful for respondents to use
government equipment and property, and to disburse public funds, of the City of Marikina for the grading,
widening, clearing, repair and maintenance of the existing sidewalks of Marikina Greenheights
Subdivision. He alleged that the sidewalks were private property because Marikina Greenheights
Subdivision was owned by V.V. Soliven, Inc. Hence, the city government could not use public resources
on them. In undertaking the project, therefore, respondents allegedly violated the constitutional
proscription against the use of public funds for private purposes as well as Sections 335 and 336 of RA
7160[5] and the Anti-Graft and Corrupt Practices Act. Petitioner further alleged that there was no
appropriation for the project.
Trial court denied petitioner's application for a temporary restraining order (TRO) and writ of
preliminary injunction because of PD 1818 and Supreme Court Circular No. 68-94 which prohibited courts
from issuing a TRO or injunction in any case, dispute or controversy involving an infrastructure project of
the government. It ruled that the City of Marikina was authorized to carry out the contested undertaking

pursuant to its inherent police power. Petitioner moved for MR but was denied. CA affirmed the RTC and
MR was denied. Hence, this petition on certiorari.
May a local government unit (LGU) validly use public funds to undertake the widening, repair and
improvement of the sidewalks of a privately-owned subdivision?
Like all LGUs, the City of Marikina is empowered to enact ordinances for the purposes set forth in
the Local Government Code (RA 7160). It is expressly vested with police powers delegated to LGUs
under the general welfare clause of RA 7160.[8] With this power, LGUs may prescribe reasonable
regulations to protect the lives, health, and property of their constituents and maintain peace and order
within their respective territorial jurisdictions.
Section 335 of RA 7160 is clear and specific that no public money or property shall be
appropriated or applied for private purposes. This is in consonance with the fundamental principle in local
fiscal administration that local government funds and monies shall be spent solely for public purposes.[25]
In Pascual v. Secretary of Public Works,[26] the Court laid down the test of validity of a public
expenditure: it is the essential character of the direct object of the expenditure which must determine its
validity and not the magnitude of the interests to be affected nor the degree to which the general
advantage of the community, and thus the public welfare, may be ultimately benefited by their
promotion.[27]Incidental advantage to the public or to the State resulting from the promotion of private
interests and the prosperity of private enterprises or business does not justify their aid by the use of public
Moreover, the implementing rules of PD 957, as amended by PD 1216, provide that it is the
registered owner or developer of a subdivision who has the responsibility for the maintenance, repair and
improvement of road lots and open spaces of the subdivision prior to their donation to the concerned
LGU. The owner or developer shall be deemed relieved of the responsibility of maintaining the road lots
and open space only upon securing a certificate of completion and executing a deed of donation of these
road lots and open spaces to the LGU.[31] Therefore, the use of LGU funds for the widening and
improvement of privately-owned sidewalks is unlawful as it directly contravenes Section 335 of RA 7160.
This conclusion finds further support from the language of Section 17 of RA 7160 which mandates LGUs
to efficiently and effectively provide basic services and facilities. The law speaks of infrastructure facilities
intended primarily to service the needs of the residents of the LGU and "which are funded out of
municipal funds." It particularly refers to "municipal roads and bridges" and "similar facilities."
Applying the rules of ejusdem generis, the phrase "similar facilities" refers to or includes
infrastructure facilities like sidewalks owned by the LGU. Thus, RA 7160 contemplates that only the
construction, improvement, repair and maintenance of infrastructure facilities owned by the LGU may be
bankrolled with local government funds.
Clearly, the question of ownership of the open spaces (including the sidewalks) in Marikina
Greenheights Subdivision is material to the determination of the validity of the challenged appropriation
and disbursement made by the City of Marikina. Similarly significant is the character of the direct object of
the expenditure, that is, the sidewalks.
Whether V.V. Soliven, Inc. has retained ownership of the open spaces and sidewalks or has
already donated them to the City of Marikina, and whether the public has full and unimpeded access to
the roads and sidewalks of Marikina Greenheights Subdivision, are factual matters. There is a need for
the prior resolution of these issues before the validity of the challenged appropriation and expenditure can
be determined.
WHEREFORE, this case is hereby ordered REMANDED to the Regional Trial Court of Marikina
City for the reception of evidence to determine (1) whether V.V. Soliven, Inc. has retained ownership of
the open spaces and sidewalks of Marikina Greenheights Subdivision or has donated them to the City of
Marikina and (2) whether the public has full and unimpeded access to, and use of, the roads and
sidewalks of the subdivision. The Marikina City Regional Trial Court is directed to decide the case with


G.R. No. 156686, July 27, 2011, FIRST DIVISION (Leonardo-De Castro, J.)
The Sangguniang Barangay of Barangay Sun Valley (the "BSV Sangguniang Barangay") issued
BSV Resolution No. 98-096 entitled "Directing the New Sun Valley Homeowners Association to Open
Rosemallow and Aster Streets to Vehicular and Pedestrian Traffic." The New Sun Valley Homeowners
Association, Inc. (NSVHAI), filed a petition claiming that the implementation of the resolution would
"cause grave injustice and irreparable injury" as "[the] affected homeowners acquired their properties for
strictly residential purposes"; that the subdivision is a place that the homeowners envisioned would
provide them privacy and "a peaceful neighborhood, free from the hassles of public places"; and that the
passage of the Resolution would destroy the character of the subdivision. NSVHAI averred that the
opening of the gates of the subdivision would not in any manner ease the traffic congestion in the area,
and that there were alternative routes available. NSVHAI submitted an amended petition, wherein it
claimed that the BSV Sangguniang Barangay had no jurisdiction over the opening of Rosemallow and
Aster Streets (the "subject roads"). NSVHAI likewise argued that a Barangay Resolution cannot validly
cause the opening of the subject roads because under the law, an ordinance is required to effect such an
Should the Sangguniang Barangay pass an ordinance instead of a resolution to open the subject
NO. NSVHAI dared to question the barangay's ownership over the subject roads when it
should have been the one to adduce evidence to support its broad claims of exclusivity and privacy.
NSVHAI did not submit an iota of proof to support its acts of ownership, which, as pointed out by
respondents, consisted of closing the subject roads that belonged to the Municipality of Paraaque and
were already being used by the public, limiting their use exclusively to the subdivision's homeowners, and
collecting fees from delivery vans that would pass through the gates that they themselves had built. It is
NSVHAI's authority to put up the road blocks in the first place that becomes highly questionable absent
any proof of ownership.
The LGU's power to close and open roads within its jurisdiction is clear under the LGC, Section
21 which states An LGU may, pursuant to an ordinance, permanently or temporarily close or open any
local road, alley, park, or square falling within its jurisdiction: Provided, however, That in case of
permanent closure, such ordinance must be approved by at least two-thirds (2/3) of all the members of
the sanggunian, and when necessary, an adequate substitute for the public facility that is subject to
closure is provided."
As stated in the CAs ruling Contrary, however, to NSVHAI's position, the above-quoted
provision, which requires the passage of an ordinance by an LGU to effect the opening of a local road,
can have no applicability to the instant case since the subdivision road lots sought to be opened to
decongest traffic in the area - namely Rosemallow and Aster Streets - have already been donated by the
Sun Valley Subdivision to, and the titles already issued in the name of, the City Government of
Paraaque since the year 1964. This fact has not even been denied by NSVHAI in the proceedings below
nor in the present recourse. Having been already donated or turned over to Paraaque, the road lots in
question have since then taken the nature of public roads which are withdrawn from the commerce of
man, and hence placed beyond the private rights or claims of NSVHAI. Accordingly, the NSVHAI was not
in the lawful exercise of its predicated rights when it built obstructing structures closing the road lots in
question to vehicular traffic for the use of the general public. Consequently, BSV Sangguniang
Barangay's act of passing the disputed barangay resolution, the implementation of which is sought to be
restrained by NSVHAI, had for its purpose not the opening of a private road but may be considered
merely as a directive or reminder to the NSVHAI to cause the opening of a public road which should
rightfully be open for use to the general public.
E. Corporate Powers
1. A sprovided by law

A. Art. 2189 NCC

In January 1958, at about 8pm, Genaro Teotico was about to board a jeepney in P. Burgos, Manila when
he fell into an uncovered manhole. This caused injuries upon him. Thereafter he sued for damages under
Article 2189 of the Civil Code the City of Manila, the mayor, the city engineer, the city health officer, the
city treasurer, and the chief of police. CFI Manila ruled against Teotico. The CA, on appeal, ruled that the
City of Manila should pay damages to Teotico. The City of Manila assailed the decision of the CA on the
ground that the charter of Manila states that it shall not be liable for damages caused by the negligence of
the city officers in enforcing the charter; that the charter is a special law and shall prevail over the Civil
Code which is a general law; and that the accident happened in national highway.
WON the City of Manila is liable in the case at bar.
Yes. It is true that in case of conflict, a special law prevails over a general law; that the charter of
Manila is a special law and that the Civil Code is a general law. However, looking at the particular
provisions of each law concerned, the provision of the Manila Charter exempting it from liability caused by
the negligence of its officers is a general law in the sense that it exempts the city from negligence of its
officers in general. There is no particular exemption but merely a general exemption. On the other hand,
Article 2189 of the Civil Code provides a particular prescription to the effect that it makes provinces, cities,
and municipalities liable for the damages caused to a certain person by reason of the defective
condition of roads, streets, bridges, public buildings, and other-public works under their control or
The allegation that the incident happened in a national highway was only raised for the first time
in the Citys motion for reconsideration in the Court of Appeals, hence it cannot be given due weight. At
any rate, even though it is a national highway, the law contemplates that regardless of whether or not the
road is national, provincial, city, or municipal, so long as it is under the Citys control and supervision, it
shall be responsible for damages by reason of the defective conditions thereof. In the case at bar, the
City admitted they have control and supervision over the road where Teotico fell when the City alleged
that it has been doing constant and regular inspection of the citys roads, P. Burgos included.
G.R. No. 71049, May 29, 1987, SECOND DIVISION, PARAS, J.
On August 15, 1974 petitioner together with his neighbors, went to Sta. Ana public market to buy
"bagoong" at the time when the public market was flooded with ankle deep rainwater. After purchasing
the "bagoong" he turned around to return home but he stepped on an uncovered opening which could not
be seen because of the dirty rainwater, causing a dirty and rusty four-inch nail, stuck inside the uncovered
opening, to pierce the left leg of plaintiff-petitioner penetrating to a depth of about one and a half inches.
He was hospitalized for 20 days in the Veterans Memorial Hospital3 for 20 days and had to with crutches
for 15 days. Due to his condition he was not able to attend to his school bus business and had to engage
the services of one Bienvenido Valdez to supervise his business for an aggregate compensation of nine
hundred pesos (P900.00).
Petitioner sued for damages the City of Manila and the Asiatic Integrated Corporation under
whose administration the Sta. Ana Public Market had been placed by virtue of a Management and
Operating Contract. The lower court ruled in favor of respondents. However on appeal, the IAC reversed
the decision and held that Asiatic Integrated Corporation should be held liable for damages.

In trying to minimize their liability, respondents claimed that the damages sought should be reduced since as a war veteran, the
petitioners hospital expenses were free of charge.

Petitioner now prays that the City of Manila should be held solidarily liable with AIC. On its
defense the City of Manila claims that by virtue of Article I, Section 4 of Republic Act No. 409 as
amended (Revised Charter of Manila) it cannot be held liable.
WON the City of Manila should be held liable for damages
Yes, this issue has been laid to rest in the case of City of Manila v. Teotico where the Supreme
Court squarely ruled that Republic Act No. 409 establishes a general rule regulating the liability of the City
of Manila for "damages or injury to persons or property arising from the failure of city officers" to enforce
the provisions of said Act, "or any other law or ordinance or from negligence" of the City "Mayor,
Municipal Board, or other officers while enforcing or attempting to enforce said provisions. Upon the
other hand, Article 2189 of the Civil Code of the Philippines which provides that: "Provinces, cities and
municipalities shall be liable for damages for the death of, or injuries suffered by any person by reason of
defective conditions of roads, streets, bridges, public buildings and other public works under their control
or supervision."
Such provision constitutes a particular prescription making "provinces, cities and municipalities x
x x liable for damages for the death of, or injury suffered by any person by reason" -- specifically --"of the
defective condition of roads, streets, bridges, public buildings, and other public works under their control
or supervision." In other words, Art. 1, sec. 4, R.A. No. 409 refers to liability arising from negligence, in
general, regardless of the object, thereof, while Article 2189 of the Civil Code governs liability due to
"defective streets, public buildings and other public works in particular and is therefore decisive on this
specific case.
Further, under Article 2189 of the Civil Code, it is not necessary for the liability therein established
to attach, that the defective public works belong to the province, city or municipality from which
responsibility is exacted. What said article requires is that the province, city or municipality has either
"control or supervision" over the public building in question. In the case at bar, there is no question that
the Sta. Ana Public Market, despite the Management and Operating Contract between respondent City
and Asiatic Integrated Corporation remained under the control of the former.
The City of Manila is likewise liable for damages under Article 2189 of the Civil Code, respondent
City having retained control and supervision over the Sta. Ana Public Market and as tort-feasor under
Article 2176 of the Civil Code on quasi-delicts. Petitioner had the right to assume that there were no
openings in the middle of the passageways and if any, that they were adequately covered. Had the
opening been covered, petitioner could not have fallen into it. Thus the negligence of the City of Manila is
the proximate cause of the injury suffered; the City is therefore liable for the injury suffered by the
Respondent City of Manila and Asiatic Integrated Corporation being joint tort-feasors, are
solidarily liable under Article 2194 of the Civil Code.
Petition Granted
------QC government v. Dacara------------Municipality of San Juan v. CA-----SAMUEL DUMLAO v. COURT OF APPEALS, et al.
G.R. No. L-39172, 31 May 1982, SECOND DIVISION, (De Castro, J.)
About 11:30 pm, Isauro Elizalde with his wife Hanidena Elizalde, while driving jeep southwards
from Davao City, thru Talomo Bridge, suddenly and unexpectedly came upon a hole on the south end of
said bridge right on his way, about 1 m in diameter and 8 ft. deep, surrounded by boulders, thus blocking
his lane. To avoid it, he swerved his jeep abruptly to the left side of the road where he was confronted by
"The City shall not be liable or held for damages or injuries to persons or property arising from the failure of the Mayor, the
Municipal Board, or any other City Officer, to enforce the provisions of this chapter, or any other law or ordinance, or from
negligence of said Mayor, Municipal Board, or any other officers while enforcing or attempting to enforce said provisions."

a steep embankment. He swerved his jeep back to the right to get into his lane after passing the boulders
and the destroyed portion of the road but he collided with the truck of Hermanos de Yap driven by
Dulcesimo Dacoy who came from the opposite direction. As a result of the collision, Isauro Elizalde died
on the spot in his jeep while his wife who was found on the road, severely injured but was still alive, died
soon after in the hospital.
The plaintiffs as heirs of both deceased sued the Hermanos de Yap but the suit was dismissed
for failure of plaintiffs to prosecute. However, same plaintiffs filed the present complaint, which now
includes the City of Davao and City Engineer Samuel Dumlao alleging that while Hermanos de Yap was
negligent not only because its driver operated their truck carelessly, recklessly, and negligently, but also
because it was itself negligent in the selection and supervision of its employees, the City of Davao and
City Engineer Samuel Dumlao were also negligent in not repairing the road where the accident took place
and in not taking the necessary precautions to warn the public of the hazards on said road, thereby
causing the collision.
Did Dumlao act with malice and in bad faith, or beyond the scope of his authority or jurisdiction
and in his personal private capacity for whatever damage he may have caused by his act done?
Dumlao first cites the provision of Article 2189 of the Civil Code as properly serving the basis of
the liability of the City of Davao, which does not include that of any of city officials. This proposition is
quite clear from the language of the cited provision and needs no further elaboration to show its validity.
The aforecited provision reads:
Art. 2189. Provinces, cities and municipalities shall be liable for damages for the death of,
or injuries suffered by any person by reason of the defective condition of the roads,
streets, bridges, public buildings and other public works under their control or
Examining the allegations of the complaint and reviewing the evidence it would indeed be correct
to say that petitioner was sued in his official capacity, and that the most that was imputed to him is act of
culpable neglect, inefficiency and gross indifference in the performance of his official duties. Verily, this is
not imputation of bad faith or malice, and what is more was not convincingly proven.
The Court is, therefore, constrained to hold that from the complaint itself, no sufficient cause of
action was alleged, and the evidence utterly fails to provide a basis for imposing on petitioner the liability
as has been declared against him jointly with his co-defendants, the City of Davao and Hermanos de
Yap, by the trial court. The latter defendants must have already satisfied the judgment against them, for
they no longer took appeal from the decision of the respondent Court of Appeals, and the private
respondents did not bother to file their brief in this instant proceedings, for they did not even ask for
extension of time to do so if they had any desire to file the appellees' brief.
This case had its inception in an action for damages by private respondent spouses against
petitioner Philippine Long Distance Telephone Company (PLDT) for the injuries they sustained when their
jeep ran over a mound of earth and fell into an open trench, an excavation allegedly undertaken by PLDT
for the installation of its underground conduit system. The complaint alleged that respondent Antonio
Esteban failed to notice the open trench which was left uncovered because of the creeping darkness and
the lack of any warning light or signs. As a result of the accident, respondent Gloria Esteban allegedly
sustained injuries on her arms, legs and face, leaving a permanent scar on her cheek, while the
respondent husband suffered cut lips. In addition, the windshield of the jeep was shattered.

PLDT, in its answer, denies liability on the contention that the injuries sustained by respondent
spouses were the result of their own negligence and that the entity which should be held responsible, if at

all, is L.R. Barte and Company (Barte, for short), an independent contractor which undertook the
construction of the manhole and the conduit system. Accordingly, PLDT filed a third-party complaint
against Barte alleging that, under the terms of their agreement, PLDT should in no manner be answerable
for any accident or injuries arising from the negligence or carelessness of Barte or any of its employees.
In answer thereto, Barte claimed that it was not aware nor was it notified of the accident involving
respondent spouses and that it had complied with the terms of its contract with PLDT by installing the
necessary and appropriate standard signs in the vicinity of the work site, with barricades at both ends of
the excavation and with red lights at night along the excavated area to warn the traveling public of the
presence of excavations.
Whether PLDT is liable to respondent Esteban spouses?
Held: No.
The perils of the road were known to, hence appreciated and assumed by, private respondents.
By exercising reasonable care and prudence, respondent Antonio Esteban could have avoided the
injurious consequences of his act, even assuming arguendo that there was some alleged negligence on
the part of petitioner.
The presence of warning signs could not have completely prevented the accident; the only
purpose of said signs was to inform and warn the public of the presence of excavations on the site. The
private respondents already knew of the presence of said excavations. It was not the lack of knowledge of
these excavations which caused the jeep of respondents to fall into the excavation but the unexplained
sudden swerving of the jeep from the inside lane towards the accident mound. As opined in some
quarters, the omission to perform a duty, such as the placing of warning signs on the site of the
excavation, constitutes the proximate cause only when the doing of the said omitted act would have
prevented the injury. It is basic that private respondents cannot charge PLDT for their injuries where their
own failure to exercise due and reasonable care was the cause thereof. It is both a societal norm and
necessity that one should exercise a reasonable degree of caution for his own protection. Furthermore,
respondent Antonio Esteban had the last clear chance or opportunity to avoid the accident,
notwithstanding the negligence he imputes to petitioner PLDT. As a resident of Lacson Street, he passed
on that street almost everyday and had knowledge of the presence and location of the excavations there.
It was his negligence that exposed him and his wife to danger, hence he is solely responsible for the
consequences of his imprudence.
A person claiming damages for the negligence of another has the burden of proving the existence
of such fault or negligence causative thereof. The facts constitutive of negligence must be affirmatively
established by competent evidence. Whosoever relies on negligence for his cause of action has the
burden in the first instance of proving the existence of the same if contested, otherwise his action must
CA decision was SET ASIDE.
B. Art. 2180 NCC
------Palafox v. Province of Ilocos Norte-----2. Liability for torts, if engaged in proprietary functions
LAUDENCIO TORIO et al. v. ROSALINA FONTANILLA et al. G.R. L- 29993, October 23, 1978, FIRST
Municipal Council of Malasiqui, Pangasinan, passed resolution No. 159 for the Malasiqui town
fiesta celebration. Resolution No. 182 was also passed creating the "1959 Malasiqui Town Fiesta
Executive Committee" which in turn organized a subcommittee on entertainment and stage, with Jose
Macaraeg as Chairman. There was a construction of 2 stages, one for the "zarzuela" and another for the
"cancionan". Jose Macaraeg supervised the construction of the stage. The program started at about
10:15 o'clock that evening with some speeches, and many persons went up the stage. The "zarzuela"
then began but before the dramatic part of the play was reached, the stage collapsed and Vicente
Fontanilla who was at the rear of the stage was pinned underneath. Fontanilla was taken to the San
Carlos General Hospital where he died in the afternoon of the following day.

The heirs of Vicente Fontanilla filed a complaint with the Court of First Instance of Manila on
September 11, 1959 to recover damages. Named party-defendants were the Municipality of Malasiqui,
the Municipal Council of Malasiqui and all the individual members of the Municipal Council in 1959.
Answering the complaint defendant municipality invoked inter alia the principal defense that as a legally
and duly organized public corporation it performs sovereign functions and the holding of a town fiesta was
an exercise of its governmental functions from which no liability can arise to answer for the negligence of
any of its agents. The trial court dismissed the case. On appeal in the CA, it reversed the trial court's
decision and ordered all the defendants-appellees to pay jointly and severally.
Is the celebration of a town fiesta an undertaking in the exercise of a municipality's governmental
or public function or is it of a private or proprietary character?
YES. We hold that the holding of the town fiesta in 1959 by the Municipality of Malasiqui,
Pangasinan, was an exercise of a private or proprietary function of the municipality.
Section 2282 of the Chapter on Municipal Law of the Revised Administrative Code provides:
"Section 2282. Celebration of fiestas. - A fiesta may be held in each municipality not oftener than
once a year upon a date fixed by the municipal council. A fiesta shall not be held upon any other date
than that lawfully fixed therefor, except when, for weighty reasons, such as typhoons, inundations,
earthquakes, epidemics, or other public calamities, the fiesta cannot be held in the date fixed, in which
case it may be held at a later date in the same year, by resolution of the council."
This provision simply gives authority to the municipality to celebrate a yearly fiesta but it does not
impose upon it a duty to observe one. Holding a fiesta even if the purpose is to commemorate a religious
or historical event of the town is in essence an act for the special benefit of the community and not for
the general welfare of the public performed in pursuance of a policy of the state. The mere fact that the
celebration, as claimed, was not to secure profit or gain but merely to provide entertainment to the town
inhabitants is not a conclusive test. For instance, the maintenance of parks is not a source of income for
the town, nonetheless it is a private undertaking as distinguished from the maintenance of public schools,
jails, and the like which are for public service.
As stated earlier, there can be no hard and fast rule for purposes of determining the true nature of
an undertaking or function of a municipality; the surrounding circumstances of a particular case are to be
considered and will be decisive. The basic element, however beneficial to the public the undertaking may
be, is that it is governmental in essence, otherwise, the function becomes private or proprietary in
character. Easily, no governmental or public policy of the state is involved in the celebration of a
town fiesta.
It follows that under the doctrine of respondeat superior, petitioner municipality is to be held liable
for damages for the death of Vicente Fontanilla if that was attributable to the negligence of the
municipality's officers, employees, or agents.
Lastly, petitioner or appellant Municipality cannot evade responsibility and/or liability under the claim that
it was Jose Macaraeg who constructed the stage. The Municipality acting through its municipal council
appointed Macaraeg as chairman of the sub-committee on entertainment and in charge of the
construction of the "zarzuela" stage. Macaraeg acted merely as an agent of the Municipality. Under
the doctrine of respondeat superior mentioned earlier, petitioner is responsible or liable for the negligence
of its agent acting within his assigned tasks.
The ordinary doctrine is that a director, merely by reason of his office, is not personally liable for
the torts of his corporation; he must be shown to have personally voted for or otherwise participated in
On these principles We absolve the municipal councilors from any liability for the death of Vicente
Fontanilla. The records do not show that said petitioners directly participated in the defective construction
of the "zarzuela" stage or that they personally permitted spectators to go up the platform.

PREMISES CONSIDERED, We AFFIRM in toto the decision of the Court of Appeals insofar as the
Municipality of Malasiqui is concerned (L-30183), and We absolve the municipal councilors from liability
and SET ASIDE the judgment against them (L-29993).
G.R. No. 156686, July 27, 2011, FIRST DIVISION (Medialdea, J.)
A collision occurred involving a passenger jeepney driven by Bernardo Balagot and owned by the
Estate of Macario Nieveras, a gravel and sand truck driven by Jose Manandeg and owned by Tanquilino
Velasquez and a dump truck of the Mun. of San Fernando, La Union and driven by Alfredo Bislig. Due to
the impact, several passengers of the jeepney including Laureano Bania Sr. died as a result of the
injuries they sustained and 4 others suffered varying degrees of physical injuries. Private respondents
instituted a complaint for damages against the Estate of Nieveras and Balagot. However, the defendants
filed a Third Party Complaint against the Mun. of San Fernando and the driver of the dump truck. The
Mun. of San Fernando filed its answer and raised affirmative defenses such as lack of cause of action,
non-suability of the State, prescription of cause of action and the negligence of the owner and driver of
the passenger jeepney as the proximate cause of the collision. The RTC held the Mun. of San Fernando
and Bislig liable.
Is the Mun. of San Fernando liable for torts committed by its employee?
NO. The test of liability of the
municipality depends on whether or not the driver, acting
in behalf of the municipality, is performing governmental or proprietary functions. As emphasized in the
case of Torio v. Fontanilla, the distinction of powers becomes important for purposes of determining the
liability of the municipality for the acts of its agents which result in an injury to third persons.
It has already been remarked that municipal corporations are suable because their charters grant
them the competence to sue and be sued. Nevertheless, they are generally not liable for torts committed
by them in the discharge of governmental functions and can be held answerable only if it can be shown
that they were acting in a proprietary capacity. In permitting such entities to be sued, the State merely
gives the claimant the right to show that the defendant was not acting in its governmental capacity when
the injury was committed or that the case comes under the exceptions recognized by law. Failing this, the
claimant cannot recover.
In the case at bar, the driver of the dump truck of the municipality insists that "he was on his way
to the Naguilian river to get a load of sand and gravel for the repair of San Fernandos municipal streets."
In the absence of any evidence to the contrary, the regularity of the performance of official duty is
presumed pursuant to Section 3(m) of Rule 131 of the Revised Rules of Court. Hence, the Court rules
that the driver of the dump truck was performing duties or tasks
pertaining to his office.
The Court already stressed in the case of Palafox, v. Province of Ilocos Norte, the District
Engineer, and the Provincial Treasurer that "the construction or maintenance of roads in which the truck
and the driver worked at the time of the accident are admittedly governmental activities."
After a careful examination of existing laws and jurisprudence, the Court arrives at the conclusion
that the municipality cannot be held liable for the torts committed by its regular employee, who was then
engaged in the discharge of governmental functions. Hence, the death of the passenger tragic and
deplorable though it may be imposed on the municipality no duty to pay monetary compensation.
Ruling reiterated in JAYME v. APOSTOL
Mayor Miguel of Koronadal, South Cotabato was on board the Isuzu pick-up truck driven by Fidel
Lozano, an employee of the Municipality of Koronadal. The pick-up truck was registered under the name
of Rodrigo Apostol, but it was then in the possession of Ernesto Simbulan. Lozano borrowed the pick-up
truck from Simbulan to bring Miguel to Buayan Airport at General Santos City to catch his Manila flight.
The pick-up truck accidentally hit Marvin Jayme, a minor, who was then crossing the National

Highway. The intensity of the collision sent Marvin 50m away from the point of impact, a clear indication
that Lozano was driving at a very high speed at the time of the accident.
The parents of Marvin, filed a complaint for damages with and prayed that all respondents be
held solidarily liable for their loss. They pointed out that that proximate cause of Marvin's death was
Lozano's negligent and reckless operation of the vehicle. Apostol and Simbulan averred that Lozano took
the pick-up truck without their consent. Likewise, Miguel and Lozano pointed out that Marvin's sudden
sprint across the highway made it impossible to avoid the accident. Yet, Miguel denied being on board the
vehicle when it hit Marvin. The Municipality of Koronadal adopted the answer of Lozano and Miguel. As
for First Integrated Bonding and Insurance Company, Inc., the vehicle insurer, it insisted that its liability is
contributory and is only conditioned on the right of the insured. Since the insured did not file a claim within
the prescribed period, any cause of action against it had prescribed.
As correctly held by the RTC, the true and lawful employer of Lozano is the Municipality of
Koronadal. Unfortunately for Spouses Jayme, the municipality may not be sued because it is an agency
of the State engaged in governmental functions and, hence, immune from suit. This immunity is illustrated
in Municipality of San Fernando, La Union v. Firme, where this Court held:
It has already been remarked that municipal corporations are suable because their
charters grant them the competence to sue and be sued. Nevertheless, they are
generally not liable for torts committed by them in the discharge of governmental
functions and can only be held answerable only if it can be shown that they were acting in
proprietary capacity. In permitting such entities to be sued, the State merely gives the
claimant the right to show that the defendant was not acting in governmental capacity
when the injury was committed or that the case comes under the exceptions recognized
by law. Failing this, the claimant cannot recover.
Verily, liability attaches to the registered owner, the negligent driver and his direct employer. The
accidental death of Marvin Jayme is a tragic loss for his parents. However, justice demands that only
those liable under our laws be held accountable for Marvin's demise. Justice can not sway in favor of
petitioners simply to assuage their pain and loss. The law on the matter is clear: only the negligent driver,
the driver's employer, and the registered owner of the vehicle are liable for the death of a third person
resulting from the negligent operation of the vehicle. Mayor Miguel could not thus be held liable for the
damages caused by the former. Mayor Miguel was a mere passenger in the Isuzu pick-up at the time of
the accident.
Liability for contract
G.R. No. 175527, December 08, 2008, EN BANC, TINGA, J.
The Commission on Audit (COA) conducted a financial audit on the Province of Cebu for the
period ending December 2004. It discovered that several contracts amounting to P102,092,841.47 were
not supported with a Sangguniang Panlalawigan resolution authorizing the Provincial Governor to enter
into a contract, as required under Section 22 of RA 7160 5. The audit team then recommended that the
Governor secure such sanggunian resolution to which the latter filed a motion for reconsideration.
However, without waiting for the resolution of the reconsideration sought, she instituted an action for
Declaratory Relief before the RTC of Cebu City where it was impleaded as respondents several officials
Sec. 22. Corporate Powers Every local government unit, as a corporation, shall have the following powers: x x x (c) Unless
otherwise provided in this Code, no contract may be entered into by the local chief executive in behalf of the local government unit
without prior authorization by the sanggunian concerned. A legible copy of such contract shall be posted at a conspicuous place in the
provincial capitol or the city, municipal or barangay hall

of COA and the Sanggunian Panlalawigan. Alleging that the infrastructure contracts subject of the audit
report complied with the bidding procedures provided under RA 9184 (Government Procurement Reform
Act) and were entered into pursuant to the general and/or supplemental appropriation ordinances passed
by the Sangguniang Panlalawigan, Gov. Garcia alleged that a separate authority to enter into such
contracts was no longer necessary.
RTC ruled pursuant to Sections 22(c) in relation to Sections 306 and 346 of the LGC and Section
37 of the Government Procurement Reform Act, the Governor need not secure prior authorization by way
of a resolution from the Sangguniang Panlalawigan of the Province of Cebu before she enters into a
contract involving monetary obligations on the part of the Province of Cebu when there is a prior
appropriation ordinance enacted. The trial court also declared that the Sangguniang Panlalawigan does
not have juridical personality nor is it vested by R.A. No. 7160 with authority to sue and be sued. On the
question of the remedy of declaratory relief being improper because a breach had already been
committed, the trial court held that the case would ripen into and be treated as an ordinary civil action.
WON the governor needed a prior authorization of the sanggunian to enter into such contracts
To determine WON such prior authorization is required; the case should be remanded to the
lower court to determine the facts of the case. Section 22 of the LGC requires prior authorization by the
sanggunian concerned before the local chief executive may enter into contracts on behalf of the local
government unit. Sec. 306 of R.A. No. 7160 merely contains a definition of terms. Read in conjunction
with Sec. 346, Sec. 306 authorizes the local chief executive to make disbursements of funds in
accordance with the ordinance authorizing the annual or supplemental appropriations. The "ordinance"
referred to in Sec. 346 pertains to that which enacts the local government units budget, for which reason
no further authorization from the local council is required, the ordinance functioning, as it does, as the
legislative authorization of the budget. To construe Sections 306 and 346 of R.A. No. 7160 as exceptions
to Sec. 22(c) would render the requirement of prior Sanggunian authorization superfluous, useless and
irrelevant. The requirement was deliberately added as a measure of check and balance, to temper the
authority of the local chief executive, and in recognition of the fact that the corporate powers of the local
government unit are wielded as much by its chief executive as by its council.
However, the sanggunian authorization may be in the form of an appropriation ordinance passed
for the year which specifically covers the project, cost or contract to be entered into by the local
government unit as provided by Sec 323 6. It should be observed that, as indicated by the word "only" in
Sec. 323, the items for which disbursements may be made under a reenacted budget are exclusive.
Clearly, contractual obligations which were not included in the previous years annual and supplemental
budgets cannot be disbursed by the local government unit. It follows, too, that new contracts entered into
by the local chief executive require the prior approval of the sanggunian.
The words "disbursement" and "contract" separately referred to in Sec. 346 and 22(c) of R.A. No.
7160 should be understood in their common signification. Disbursement is defined as "To pay out,
commonly from a fund. To make payment in settlement of a debt or account payable." Contract, on the
other hand, is defined by our Civil Code as "a meeting of minds between two persons whereby one binds
himself, with respect to the other, to give something or to render some service." And so, to give life to the
obvious intendment of the law and to avoid a construction which would render Sec. 22(c) of R.A. No.
7160 meaningless, disbursement, as used in Sec. 346, should be understood to pertain to payments for
statutory and contractual obligations which the sanggunian has already authorized thru ordinances
enacting the annual budget and are therefore already subsisting obligations of the local government unit.
Contracts, as used in Sec. 22(c) on the other hand, are those which bind the local government unit to
new obligations, with their corresponding terms and conditions, for which the local chief executive needs
prior authority from the sanggunian.

In case of a reenacted budget, "only the annual appropriations for salaries and wages of existing positions, statutory and contractual
obligations, and essential operating expenses authorized in the annual and supplemental budgets for the preceding year shall be
deemed reenacted and disbursement of funds shall be in accordance therewith."

R.A. No. 9184 establishes the law and procedure for public procurement. Sec. 375 thereof
explicitly makes the approval of the appropriate authority which, in the case of local government units, is
the sanggunian, the point of reference for the notice to proceed to be issued to the winning bidder. This
provision, rather than being in conflict with or providing an exception to Sec. 22(c) of R.A. No. 7160,
blends seamlessly with the latter and even acknowledges that in the exercise of the local government
units corporate powers, the chief executive acts merely as an instrumentality of the local council. Read
together, the cited provisions mandate the local chief executive to secure the sanggunians approval
before entering into procurement contracts and to transmit the notice to proceed to the winning bidder not
later than seven (7) calendar days therefrom.
Parenthetically, Gov. Garcias petition for declaratory relief should have been dismissed because
it was instituted after the COA had already found her in violation of Sec. 22(c) of R.A. No. 7160. One of
the important requirements for a petition for declaratory relief under Sec. 1, Rule 63 of the Rules of Court
is that it be filed before breach or violation of a deed, will, contract, other written instrument, statute,
executive order, regulation, ordinance or any other governmental regulation. Thus, the trial court erred in
assuming jurisdiction over the action despite the fact that the subject thereof had already been breached
by Gov. Garcia prior to the filing of the action. Nonetheless, the conversion of the petition into an ordinary
civil action is warranted under Sec. 6, Rule 63 of the Rules of Court. Erroneously, however, the trial court
did not treat the COA report as a breach of the law and proceeded to resolve the issues as it would have
in a declaratory relief action. Thus, it ruled that prior authorization is not required if there exist ordinances
which authorize the local chief executive to enter into contracts.
The problem with this ruling is that it fails to take heed of the incongruent facts presented by the
parties. What the trial court should have done, instead of deciding the case based merely on the
memoranda submitted by the parties, was to conduct a full-blown trial to thresh out the facts and make an
informed and complete decision. The question which should have been answered by the trial court, and
which it failed to do was whether, during the period in question, there did exist ordinances (authorizing
Gov. Garcia to enter into the questioned contracts) which rendered the obtention of another authorization
from the Sangguniang Panlalawigan superfluous. It should also have determined the character of the
questioned contracts, i.e., whether they were, as Gov. Garcia claims, mere disbursements pursuant to the
ordinances supposedly passed by the sanggunian or, as COA officials claim, new contracts which
obligate the province without the provincial boards authority. It cannot be overemphasized that the
paramount consideration in the present controversy is the fact that the Province of Cebu was operating
under a re-enacted budget in 2004, resulting in an altogether different set of rules as directed by Sec. 323
of R.A. 7160. This Decision, however, should not be so construed as to proscribe any and all contracts
entered into by the local chief executive without formal sanggunian authorization. In cases, for instance,
where the local government unit operates under an annual as opposed to a re-enacted budget, it should
be acknowledged that the appropriation passed by the sanggunian may validly serve as the authorization
required under Sec. 22(c) of R.A. No. 7160. After all, an appropriation is an authorization made by
ordinance, directing the payment of goods and services from local government funds under specified
conditions or for specific purposes.

The Province of Cebu was operating under a reenacted budget in 2004.

Gov. Garcia entered into contracts on behalf of the province while this reenacted budget was in

Vivencio Sto. Domingo, Sr. died and was buried in North Cemetery which lot was leased by the
city to Irene Sto. Domingo for the period from June 6, 1971 to June 6, 2021. The wife paid the full amount
of the lease. Apart, however from the receipt, no other document embodied such lease over the lot.
Believing that the lease was only for five years, the city certified the lot as ready for exhumation. On the
basis of the certification, Joseph Helmuth authorized the exhumation and removal of the remains of
Vicencio. His bones were placed in a bag and kept in the bodega of the cemetery. The lot was also
leased to another lessee. During the next all souls day, the private respondents were shocked to find out
that Vicencios remains were removed. The cemetery told Irene to look for the bones of the husband in

the bodega. Aggrieved, the widow and the children brought an action for damages against the City of
Manila and others including Joseph Helmuth, the officer-in-charge of the said burial grounds owned and
operated by the City Government of Manila. The court ordered defendants to give plaintiffs the right to
make use of another lot. The CA affirmed and included the award of damages in favor of the private
respondents. Hence, this petition.
Petitioners alleged in their petition that the North Cemetery is exclusively devoted for public use
or purpose as stated in Sec. 316 of the Compilation of the Ordinances of the City of Manila. They
conclude that since the City is a political subdivision in the performance of its governmental function, it is
immune from tort liability which may be caused by its public officers and subordinate employees. Private
respondents maintain that the City of Manila entered into a contract of lease which involves the exercise
of proprietary functions with Irene Sto. Domingo. The city and its officers therefore can be sued for anyviolation of the contract of lease.
WON the operations and functions of a public cemetery are a governmental, or a corporate or
proprietary function of the City of Manila.
The City of Manila is a political body corporate and as such endowed with the faculties of
municipal corporations to be exercised by and through its city government in conformity with law, and in
its proper corporate name. It may sue and be sued, and contract and be contracted with. Its powers
are twofold in character-public, governmental or political on the one hand, and corporate, private and
proprietary on the other. Governmental powers are those exercised in administering the powers of the
state and promoting the public welfare and they include the legislative, judicial, public and political.
Municipal powers on the one hand are exercised for the special benefit and advantage of the community
and include those which are ministerial, private and corporate. In connection with the powers of a
municipal corporation, it may acquire property in its public or governmental capacity, and private or
proprietary capacity. The New Civil Code divides such properties into property for public use and
patrimonial properties (Article 423), and further enumerates the properties for public use as provincial
roads, city streets, municipal streets, the squares, fountains, public waters, promenades, and public
works for public service paid for by said provisions, cities or municipalities, all other property is patrimonial
without prejudice to the provisions of special laws. Thus in Torio v. Fontanilla, the Court declared that
with respect to proprietary functions the settled rule is that a municipal corporation can be held
liable to third persons ex contractu. The Court further stressed that Municipal corporations are subject
to be sued upon contracts and in tort.... The rule of law is a general one, that the superior or employer
must answer civilly for the negligence or want of skill of its agent or servant in the course or line of his
employment, by which another who is free from contributory fault, is injured. Municipal corporations
under the conditions herein stated, fall within tile operation of this rule of law, and are liable
accordingly, to civil actions for damages when the requisite elements of liability co-exist. ...
Under the foregoing considerations and in the absence of a special law, the North Cemetery is a
patrimonial property of the City of Manila. The administration and government of the cemetery are under
the City Health Officer, the order and police of the cemetery, the opening of graves, niches, or tombs, the
exhuming of remains, and the purification of the same are under the charge and responsibility of the
superintendent of the cemetery. With the acts of dominion, there is no doubt that the North Cemetery is
within the class of property which the City of Manila owns in its proprietary or private character.
Furthermore, there is no dispute that the burial lot was leased in favor of the private respondents.
Hence, obligations arising from contracts have the force of law between the contracting parties.
Thus a lease contract executed by the lessor and lessee remains as the law between them.
Therefore, a breach of contractual provision entitles the other party to damages even if no penalty
for such breach is prescribed in the contract.
Doctrine of Implied Municipal Liability and Contra personal Liability
G.R. No. 96628, 3 July 1992, EN BANC, (Paras, J.)

When Philippine Sugar Commission (PHILSUCOM) failed to pay real estate taxes due on its
sugar refinery situated at Barangay Caloocan, Balayan, Batangas, the Provincial Treasurer of Batangas
scheduled the sale of said refinery at public auction. To restrain the sale, PHILSUCOM filed a petition for
prohibition in the CA against the Provincial Treasurer and Provincial Assessor of. The CA issued a status
quo ante order.
Meanwhile, Barangay Caloocan thru Atty. Ceferino Inciong filed a Motion for Intervention alleging
that Barangay Caloocan is an indispensable party in the case as it has a 10% share of the property tax
sought to be collected from PHILSUCOM. Barangay Caloocan filed an Answer to PHILSUCOM's Petition
and a motion for reconsideration of the restraining.
On December 24, 1986, PHILSUCOM and the Municipal Treasurer of Balayan, Batangas entered
into an Amnesty Compromise Agreement. PHILSUCOM paid the amount of P7,199,887.51 to the
Municipal Treasurer where Barangay Caloocan was allocated a share of 10% or a total of P719,988.75.
Consequently, Atty. Ceferino Inciong filed a case for payment of attorney's fees against the
Province of Batangas, Municipality of Balayan and Barangay Caloocan, before the RTC. The RTC ruled
in favor of Inciong. When the case became final and when it was referred to the COA, Chairman Eufemio
Domingo stated that the hiring of Inciong by the Punong Barangay did not carry with it the approval of the
Sangguniang Barangay nor was there any appropriation therefor; the hiring was not approved by the
Solicitor General and concurred in by COA, thus, Inciong not entitled to attorneys fees.
Is Atty. Ceferino Inciong entitled to attoryneys fees?
1. The employment by Barangay Caloocan of petitioner as its counsel, even if allegedly
unauthorized by the Sangguniang Barangay, is binding on Barangay Caloocan as it took no
prompt measure to repudiate petitioner's employment.
2. The Decision directing Barangay Caloocan to pay attorney's fees to petitioner, has become final
and executory and is binding upon Barangay Caloocan.
3. COA Circular No. 86-255 cannot diminish the substantive right of Inciong to recover attorney's
fees under the final and executory Decision dated August 9, 1989 of the Regional Trial Court.
The 10% allocation is erroneous because pursuant to Republic Act No. 5447, Barangay Caloocan
should only share from the basic tax which is 50% of what PHILSUCOM paid because the other half
should go to the Special Education Fund. Under the said Republic Act No. 5447, the rightful share of
Barangay Caloocan should be P359,994.38 only. Thus, respondent prays that in the event the Court
orders the payment of attorney's fees to Inciong this amount of P359,994.38 should be made as the basis
PROVINCE OF CEBU, petitioner, vs.
On 1964, while then incumbent Governor Espina was on official business in Manila, the ViceGov, Almendras and 3 members of the Provincial Board enacted A Resolution donating to the City of
Cebu an area of over 380 hectares. The deed of donation was immediately executed in behalf of the
Province of Cebu by Vice-Governor Almendras and accepted in behalf of the City of Cebu by Mayor
Sergio Osmea,Jr. The document of donation was prepared and notarized by a private lawyer.
After the city announced the sale of the lots, Governor Espina, engaged the services of
respondent Garcia, for the annulment of the deed of donation.
The Provincial Board passed a resolution authorizing the Provincial Attorney, Baguia, to enter his
appearance for the Province of Cebu and for the incumbent Governor, Vice-Governor and members
of the Provincial Board in this case.
A compromise agreement was reached between the province of Cebu and the city of Cebu.

For services rendered atty, Garcia filed a Notice of Attorney's Lien, praying that his statement of
claim of attorney's lien in said case be entered upon the records. To said notice, petitioner Province of
Cebu opposed: the payment of attorney's fees are not allowed by law.
Can a province be held liable for attorneys fees?
Anent the question of liability for respondent counsel's services, the general rule that an attorney
cannot recover his fees from one who did not employ him or authorize his employment, is subject to its
own exception.
We apply a rule in the law of municipal corporations: "that a municipality may become obligated upon an
implied contract to pay the reasonable value of the benefits accepted or appropriated by it as to which it
has the general power to contract. The doctrine of implied municipal liability has been said to apply to all
cases where money or other property of a party is received under such circumstances that the general
law, independent of express contract implies an obligation upon the municipality to do justice with respect
to the same." (38 Am Jur. Sec. 515, p. 193):
The obligation of a municipal corporation upon the doctrine of an implied contract does not
connote an enforceable obligation. Some specific principle or situation of which equity takes
cognizance must be the foundation of the claim. The principle of liability rests upon the theory
that the obligation implied by law to pay does not originate in the unlawful contract, but arises
from considerations outside it. The measure of recovery is the benefit received by the municipal
corporation. The amount of the loan, the value of the property or services, or the compensation
specified in the contract, is not the measure. If the price named in the invalid contract is shown
to be entirely fair and reasonable not only in view of the labor done, but also in reference to the
benefits conferred, it may be taken as the true measure of recovery.
The petitioner can not set up the plea that the contract was ultra vires and still retain benefits thereunder.
Having regarded the contract as valid for purposes of reaping some benefits, the petitioner is estopped to
question its validity for the purposes of denying answerability.
THE HON. EXPEDITO B. PILAR, in his capacity as Vice-Mayor and concurrently presiding officer
protempore of the Sanguniang Bayan of Dasol, Pangasinan, Petitioner, v. THE SANGUNIANG
Petitioner was elected vice mayor of Dasol, Pangasinan in 1980 local elections. March 4, 1980,
the Sanguniang Bayan adopted Resolution No. 1 which increased the salaries of the mayor and
municipal treasurer to P18,636.00 and P16,044.00 per annum respectively. The said resolution did not
provide for an increase in salary of the vice mayor despite the fact that such position is entitled to an
annual salary of P16,044.00. Petitioner questioned the failure of the Sanguniang Bayan to appropriate an
amount for the payment of his salary.
On December 12, 1980, the Sanguniang Bayan enacted a resolution appropriating the amount of
P500.00 per month as the salary of the petitioner. This amount was increased to P774.00 per month in
December, 1981. On October 26, 1982, the Sanguniang Bayan enacted a resolution appropriating the
amount of P15,144.00 as payment of the unpaid salaries of the petitioner from January 1, 1981 to
December 31, 1982. The resolution was vetoed by the respondent mayor resulting into the filing by the
petitioner of this petition for a writ of mandamus.
Can petitioner avail of damages due to the failure of the respondents to pay him his lawful salary?
Held: Yes.
That respondent Hon. Mayor Lodovico Espinosa alone should be held liable and responsible for
the miserable plight of the petitioner is clear. Respondent Mayor vetoed without just cause on October 26,
1982 the Resolution of the Sanguniang Bayan appropriating the salary of the petitioner. While "to veto or

not to veto involves the exercise of discretion" as contended by respondents, respondent Mayor,
however, exceeded his authority in an arbitrary manner when he vetoed the resolution since there exists
sufficient municipal funds from which the salary of the petitioner could be paid. Respondent Mayors
refusal, neglect or omission in complying with the directives of the Provincial Budget Officer and the
Director of the Bureau of Local Government that the salary of the petitioner be provided for and paid the
prescribed salary rate, is reckless and oppressive, hence, by way of example or correction for the public
good, respondent Mayor is liable personally to the petitioner for exemplary or corrective damages.
Respondent Mayor was ordered to pay petitioner from his private and personal funds actual
damages and costs of litigation the amount of P5,000.00; moral damages in the amount of P5,000.00;
exemplary or corrective damages in the amount of P5,000.00; and attorneys fees in the amount of
G.R. NO. 165065, September 26, 2006, FIRST DIVISION, (CALLEJO, SR., J.)
Verutiao averred that Municipal Ordinance No. 2, Series of 1984, provides that, to facilitate the
development of the public market, in the absence of adequate government finance, construction by
private parties of buildings and other structures for commercial purposes may be allowed and the
expenses thereof shall be reimbursed to the builder by applying 50% to the monthly rentals when
occupied for business. She spent P24,267.00 for the construction of the market stall, as stated in the
itemized statement of expenses she submitted to then Municipal Treasurer Jose Lee on February 14,
1992. She was not, however, reimbursed by the Municipality of her expenses. After the construction, she
then opened the stall for business. She paid the rent for the whole year of 1992 but did not pay the rentals
in 1993.
Verutiao and the Municipality entered into a one-year lease contract, renewable every year with a
monthly rental of P400.00. It is also provided that, any violation of the conditions therein agreed shall be
sufficient cause for its cancellation, notwithstanding the fact that the contract has not yet expired. The
Municipality partially paid her P10,000.00 of her total expenses in the construction of the market stall.
She and her husband received a letter-order from Mayor Melchor Maderazo, directing her to vacate the
stall within twenty-four (24) hours because of her failure to pay the rentals for the stall. As of January
1997, Verutiao had an unpaid rental of P2,532.00, after deducting her expenses for the construction of
the stall. The Mayor declared in his letter that the lease contract had been cancelled. The spouses
Verutiao, through counsel, sent a letter to the Mayor, stating, among others, that under Section 38 of
Ordinance No. 2, Series of 1984, she did not have to pay rental until her expenses were reimbursed, as
the rentals due would be debited from 50% of the amount she advanced for the construction of the
market stall, and that she will vacate the stall only after the municipality shall have reimbursed her
expenses in the construction. However, Mayor Maderazo padlocked the leased premises. Thus,
petitioners filed a case of unjust vexation before the Sandiganbayan. The latter convicted Melchor G.
Maderazo, Seniforo Perido, and Victor Maderazo, Jr. of the crime of unjust vexation, but acquitted the
other accused.
Are Mayor Melchor Maderazo and Victor Maderazo, Jr. liable?
Petitioners Mayor Melchor Maderazo and Sangguniang Bayan member Victor Maderazo, Jr., had
no right, without judicial intervention, to oust Verutiao from the stall, and had her merchandise transported
to the police station, thereby preventing her from doing business therein and selling her merchandize.
Petitioner Mayor Maderazo had no right to take the law into his own hands and deprive Verutiao of her
possession of the stall and her means of livelihood.
Undeniably, petitioner Mayor is tasked to enforce all laws and ordinances relative to the
governance of the Municipality and to implement all approved programs, projects, services and activities

of the Municipality and to ensure that all taxes and other revenues of the Municipality are collected. He is
obliged to institute or cause to be instituted administrative or judicial proceedings for the recovery of funds
and property. However, in the performance of his duties, petitioner Mayor should act within the confines of
the law and not resort to the commission of a felony. A public officer is proscribed from resorting to
criminal acts in the enforcement of laws and ordinances. He must exercise his power and perform his
duties in accordance with law, with strict observance of the rights of the people, and never whimsically,
arbitrarily and despotically.
Even as we find petitioners Mayor Melchor Maderazo and Victor Maderazo, Jr. guilty of unjust
vexation, we find petitioner Seniforo Perido deserving of an acquittal. The Prosecution failed to prove that
he conspired with the other petitioners. He was at the situs of the stall merely to witness the inventory and
ensure peace and order. He agreed to have the contents of the stall of Verutiao stored in the police
station presumably to protect the property from the elements and asportation by thieves until after
Verutiao shall have claimed the same or the disposition thereof determined by the authorities concerned.
the Sandiganbayan is
Perido is ACQUITTED of the crime charged.
Legislative powers
1. Six requisites of a valid ordinance
------Sol. Gen. v. MMA-----2. Distinction between the enactment of ordinances and resolutions
Petitioner Roble Arrastre, Inc. is a cargo handling service operator, authorized by the Philippine
Ports Authority (PPA) to provide and render arrastre and stevedoring services at the Municipal Port of
Hilongos, Leyte, and on all vessels berthed thereat. For the years 1992 and 1993, petitioner was granted
Business Permits No. 349 and No. 276, respectively, by respondent Municipal Mayor Altagracia Villaflor.
On December 14, 1993, pending final consideration of petitioners application for renewal with the PPA
Office, the PPA through its Port Manager Salvador L. Reyna issued a 90-day hold-over authority to
petitioner. Stated therein was the proviso that notwithstanding the 90-day period aforementioned, the
authority shall be deemed ipso facto revoked if an earlier permit/contract for cargo handling services is
granted or sooner withdrawn or cancelled for cause pursuant to PPA Administrative Order No. 10-81. On
January 27, 1994, while the 90-day hold-over authority was in effect, petitioner filed with respondent
mayor an application for the renewal of its Business Permit No. 276. However, the same was denied. In
denying petitioners application, respondent mayor invoked Municipal Resolution No. 93-27, passed by
the Sangguniang Bayan of Hilongos, Leyte, which prohibits any party which likewise operates shipping
lines plying the route of Cebu to Hilongos and vice versa, from engaging in arrastre and stevedoring
services at the port of Hilongos.
Aggrieved by the denial, petitioner filed with the RTC, a Petition for Mandamus with Preliminary
Mandatory Injunction against respondent Mayor. According to petitioner, the source of the power of the
municipal mayor to issue licenses is Section 444(b)(3)(iv) of the LGC, which is merely for the purpose of
revenue generation and not regulation, hence, the municipal mayor has no discretion to refuse the
issuance of a business license following the applicants payment or satisfaction of the proper license fees.
Petitioner further alleged that it is the PPA which is vested with the discretion to determine whether a
party can render arrastre service in a particular port area.
The RTC opined that the PPA has the sole authority to grant permits in the operation of cargo
handling services in all Philippine ports, whether public or private. Proceeding therefrom, it ruled that the
refusal of respondent mayor to approve petitioners application for renewal of the business permit was not
based on law nor upon her discretion. CA reversed and set aside the ruling of the RTC and ruled that the
pursuit of the duty of the mayor under Section 444 necessarily entails exercise of discretion.

WON CA validly rendered its decision when it refused to apply the precedent in Symaco v.
Aquino wherein this Honorable Supreme Court held that even in the absence of any ordinance granting
the respondent Mayor such discretion, she cannot refuse issuance of the permit if there is prior
compliance by the petitioner with all documentary requirement and full payment of the required permit
Section 444(b)(3)(iv) provides that the power of the municipal mayor to issue licenses is pursuant to
Section 16 of the LGC known as the General Welfare Clause, which declares:
SEC. 16. General Welfare. - Every local government unit shall exercise the powers
expressly granted, those necessarily implied therefrom, as well as powers necessary,
appropriate, or incidental for its efficient and effective governance, and those which are
essential to the promotion of the general welfare. Within their respective territorial
jurisdictions, local government units shall ensure and support, among other things, the
preservation and enrichment of culture, promote health and safety, enhance the right of
the people to a balanced ecology, encourage and support the development of
appropriate and self-reliant scientific and technological capabilities, improve public
morals, enhance economic prosperity and social justice, promote full employment
among their residents, maintain peace and order, and preserve the comfort and
convenience of their inhabitants.
While we agree with petitioner that there is no ordinance conferring upon the respondent mayor
the power to refuse the issuance of the permit for the operation of an arrastre service, we are, as yet,
unprepared to declare that the power of the municipal mayor as enunciated under Section 444(b)(3)(iv) is
ministerial. What can be deduced from the aforesaid section is that the limits in the exercise of the power
of a municipal mayor to issue licenses, and permits and suspend or revoke the same can be contained in
a law or an ordinance. Otherwise stated, a law or an ordinance can provide the conditions upon which
the power of the municipal mayor under Section 444(b)(3)(iv) can be exercised. Section 444(b)(3)(iv) of
the LGC takes its cue from Section 16 thereof, which is largely an exercise of delegated police power.
Section 444(b)(3)(iv) of the Local Government Code of 1991, whereby the power of the
respondent mayor to issue license and permits is circumscribed, is a manifestation of the delegated
police power of a municipal corporation. Necessarily, the exercise thereof cannot be deemed
ministerial. As to the question of whether the power is validly exercised, the matter is within the province
of a writ of certiorari, but certainly, not of mandamus.
It may be true, as argued by petitioner, that Resolution No. 93-27, which was enacted by the
Sangguniang Bayan of Hilongos, is not an ordinance but merely a resolution. A municipal ordinance is
different from a resolution. An ordinance is a law, but a resolution is merely a declaration of the
sentiment or opinion of a lawmaking body on a specific matter. An ordinance possesses a general and
permanent character, but a resolution is temporary in nature. Additionally, the two are enacted differently
- a third reading is necessary for an ordinance, but not for a resolution, unless decided otherwise by a
majority of all the Sanggunian members.
However, the fact that Resolution No. 93-27 is a mere resolution can do nil to support
petitioners cause. As stated earlier, the proper action is certiorari to determine whether grave abuse of
discretion had been committed on the part of respondent mayor in the refusal to grant petitioners
application. Petitioners petition for mandamus is incompetent against respondent mayors discretionary
3. Meaning of Quorum
G.R. No. 147767, January 14, 2004, THIRD DIVISION, CARPIO MORALES, J.
Petitioner Manuel Zamora, a member of the Sangguniang Panlalawigan of Compostela Valley
(the Sanggunian), seeks to invalidate all acts executed and resolutions issued by the Sanggunian during
its sessions held on February 8 and 26, 2001 for lack of quorum. On February 8, 2001, the Sanggunian

held a special session to, allow the Governor to deliver his State of the Province Address. As only seven
members of the fourteen-member Sanggunian were present, no resolution was considered. On February
26, 2001, the Sanggunian held its 4 regular session during which it issued Resolution No. 05 declaring
the entire province of Compostela Valley under a state of calamity and Resolution No. 07 authorizing the
Governor to enter into a construction contract with Allado Construction Company, Inc. for the completion
of Phase II of the construction of the capitol building. During the same session, the Sanggunian accepted
the letter of irrevocable resignation submitted by Board Member Gemma Theresa M. Sotto.
While only eight members of the Sanggunian were present at the commencement of the session
on February 26, 2001, the Journal of the Proceedings and Resolution Nos. 05 and 07 showed that a total
of thirteen members attended it. Petitioner additionally alleged that when the vote respecting Resolution
No. 05 was taken, only the remaining six members voted for the adoption thereof, the then presiding
officer Board Member Rolando Osorio not having cast his vote; that when Resolution No. 07 was taken
up, however, then presiding officer Osorio, relinquished his seat to Board Member Graciano Arafol after
the six members present unanimously voted on the said resolution in the affirmative, following which
Osorio cast his vote as a member also in the affirmative, thereby authorizing the Governor to enter into
the Contract with Allado Company; and that Board Member Arafol thereafter relinquished his seat as
presiding officer to Board Member Osorio who once again assumed the duties of a presiding officer.
The petition was dismissed by the RTC on the ground that Gemma Theresa M. Sotto should not
be counted as member for the purpose of determining the number to constitute a quorum because she is
in the United States of America as raised as a defense of the respondents
WON the acts of the sanggunian pertaining to the questioned resolutions are valid
Resolutions no. 5 and 7 are invalid for lack of quorum. A majority of all members of the
sanggunian who have been elected and qualified shall constitute a quorum to transact official business.
Should a question of quorum be raised during a session, the presiding officer shall immediately proceed
to call the roll of the members and thereafter announce the results. Quorum is defined as that number
of members of a body which, when legally assembled in their proper places, will enable the body to
transact its proper business or that number which makes a lawful body and gives it power to pass upon a
law or ordinance or do any valid act. Majority, when required to constitute a quorum, means the number
greater than half or more than half of any total. In fine, the entire membership must be taken into account
in computing the quorum of the Sangguniang Panlalawigan, for while the constitution merely states that
majority of each House shall constitute a quorum, Section 53 of the LGC is more exacting as it requires
that the majority of all members of the sanggunian . . . elected and qualified shall constitute a
Thus the trial court should have based its determination of the existence of a quorum on the total
number of members of the Sanggunian without regard to the filing of a leave of absence by Board
Member Sotto . The fear that a majority may, for reasons of political affiliation, file leaves of absence in
order to cripple the functioning of the sanggunian is already addressed by the grant of coercive power to
a mere majority of sanggunian members present when there is no quorum. A sanggunian is a collegial
body. Legislation, which is the principal function and duty of the sanggunian, requires the participation of
all its members so that they may not only represent the interests of their respective constituents but also
help in the making of decisions by voting upon every question put upon the body. The acts of only a part
of the Sanggunian done outside the parameters of the legal provisions aforementioned are legally infirm,
highly questionable and are, more importantly, null and void.
Assuming arguendo that there was quorum the questioned resolutions are still null and void.
There is nothing on record, save for respondents allegation, to show that Board Member Sotto was out of the country and to
thereby conclude that she was outside the coercive power of the Sanggunian when the February 8 and 26, 2001 sessions were held. In
fact it is undisputed that the leave form filed by said Board Member before the Department of Interior and Local Government
(DILG) did not mention that she was going out of the country.

Resolution No. 05 declaring the entire province of Compostela Valley under state of calamity is
still null and void because the motion for its approval was approved by only six members. When
there are thirteen members present at a session, the vote of only six members cannot, at any
instance, be deemed to be in compliance with Section 107(g) of the Rules and Regulations
Implementing the LGC which requires the concurrence of the approval by the majority of the
members present and the existence of a quorum in order to validly enact a resolution.
The grant of authority to the governor to enter into the construction contract is also deemed not
approved in accordance with the law even if it received seven affirmative votes, which is already
the majority of thirteen, due to the defect in the seventh vote. For as priorly stated, as the Journal
confirms, after all six members voted in the affirmative, Board Member Osorio, as acting presiding
officer, relinquished his seat to Board Member Arafol and thereafter cast his vote as a member in
favor of granting authority to the Governor. A presiding officer shall only vote to break a tie. Such
act by Osorio is clearly intended to circumvent an express prohibition under the law.

4. Other Illustrative cases

Consunji Inc. acquired and became the owner of a residential lot situated in Matina Davao City.
On June 13, 1981, David Consunji Inc transferred said lot to its sister company, the DMC Urban Property
Developers, Inc (DMC) in whose favor TCT No. T-279042 was issued. Alleging that Louie Biraogo
forcibly entered said lot and built the Habagat Grill in December 1993, DMC filed on March 28, 1994 a
Complaint for Forcible Entry against Habagat Grill and/or Louie Biraogo. The Complaint alleged that as
owner DMC possessed the lot in question from June 11, 1981 until December 1, 1993, that on that day,
December 1, 1993, Louie Biraogo, by means of strategy and stealth, unlawfully entered into the lot in
question and constructed the Habagat Grill thereon, thus illegally depriving DMC of the possession of
said lot since then up to the present, that the reasonable rental value of said lot is P10,000 a month.
Louie Biraogo in his Answer denied illegally entering the lot in question.
After necessary proceedings, the MTCC rendered a decision dismissing the case on the ground
of lack of jurisdiction and lack of cause of action. Thereafter, the RTC affirmed the decision. On appeal,
the CA reversed the decision, ruling that the petitioner faulted for not presenting any other documentary
evidence to establish the date of Habagat Grills construction. The appellate court explained that the
lower court could take cognizance of Presidential Proclamation No. 20, but not of the situational relation
between the property covered by the Proclamation and the land in question.
Hence, this petition. Petitioner avers that no cause of action was alleged by respondent, as
shown by the following circumstances: (1) the latters property was not encroached upon by Habagat
Grill, which had allegedly been constructed on a portion of land owned by the City Government of Davao;
and (2) respondent failed to prove that its predecessor-in-interest had prior possession of the property.
On the other hand, respondent argues that the trial court indiscriminately ignored the Report of the survey
team that had been constituted to determine the exact location of Habagat Grill. Respondent further
contends that the trial court erred in taking judicial notice of the metes and bounds of the property
covered by Presidential Proclamation No. 20.
WON respondent alleged a sufficient cause of action in its complaint
Judicial notice is the cognizance of certain facts which judges may properly take and act on
without proof because they already know them. Its object is to save time, labor and expense in securing
and introducing evidence on matters that are not ordinarily capable of dispute or actually bona fide
disputed, and the tenor of which can safely be assumed from the tribunals general knowledge or from a
slight search on its part.

Indeed, municipal courts may take judicial notice of the municipal ordinances in force in the
municipality in which they sit. Such notice, however, is limited to what the law is and what it states. As can
be gleaned from its discussions, the trial court took judicial notice of the existence of Presidential
Proclamation No. 20, which declared Times Beach a recreation center. The MTC also took judicial notice
of the location of the beach, which was from the shoreline to the road towards the shoreline. On the
basis of these premises, the trial court resolved that the lot on which petitioners restaurant was located
should necessarily be inside Times Beach, which was owned by the City of Davao. Hence, it was the City
-- not respondent -- that had a cause of action against petitioner. To arrive at this conclusion, the MTC
made its own estimate of the location of the metes and bounds of the property mentioned by the law.
The location of Habagat Grill cannot be resolved by merely taking judicial notice of Presidential
Proclamation No. 20; such location is precisely at the core of the dispute in this case. Moreover,
considering respondents allegation that the supposed lot covered by the Ordinance has been lost due to
inundation by the sea, we cannot fathom how the trial court could have known of the actual location of the
metes and bounds of the subject lot. Neither may the MTC take discretionary judicial notice under Section
2 of Rule 129 of the Rules of Court, because the exact boundaries of the lot covered by that law are not a
matter of public knowledge capable of unquestionable demonstration. Neither may these be known to
judges because of their judicial functions.
Hence, the CA was correct in disregarding the findings of the trial courts, because they had erred
in taking judicial notice of the exact metes and bounds of the property. The appellate court aptly relied on
the Report submitted by the survey team that had been constituted by the trial court, precisely for the
purpose of determining the location of Habagat Grill in relation to respondents lot.
Petition denied.
* Petitioner also argued that the lower court did not acquire jurisdiction over the case, because mere
allegation of ownership did not, by itself, show that respondent had prior possession of the property. The
Court disagree. Jurisdiction in ejectment cases is determined by the allegations pleaded in the complaint.
As long as these allegations demonstrate a cause of action either for forcible entry or for unlawful
detainer, the court acquires jurisdiction over the subject matter. This principle holds, even if the facts
proved during the trial do not support the cause of action thus alleged, in which instance the court -- after
acquiring jurisdiction -- may resolve to dismiss the action for insufficiency of evidence.
* Finally, petitioner avers that respondent failed to prove that the latters predecessor-in-interest had prior
possession of the property. Conversely, respondent alleges that its predecessor was in prior physical
possession of the property as the registered owner thereof since June 11, 1981. Again, the Court rule for
respondent. The only issue in ejectment proceedings is possession de facto, not possession de jure. In
the present case, prior possession of the lot by respondents predecessor was sufficiently proven by
evidence of the execution and registration of public instruments and by the fact that the lot was subject to
its will from then until December 1, 1993, when petitioner unlawfully entered the premises and deprived
the former of possession thereof.
On July 28, 1986, respondent Sangguniang Panlungsod enacted Resolution No. 210 granting
petitioner a permit to construct, install, and operate a CATV system in Batangas City. Section 8 of the
Resolution provides that petitioner is authorized to charge its subscribers the maximum rates specified
therein, provided, however, that any increase of ratesshall be subject to the approval of the Sangguniang
Panlungsod. In November 1993, petitioner increased its subscriber rates from P88.00 to P180.00 per
month. As a result, respondent Mayor wrote petitioner a letter threatening to cancel its permit unless it
secures the approval of respondent Sangguniang Panlungsod, pursuant to Resolution No. 210. Petitioner
then filed with the RTC, Branch 7, Batangas City, a petition for injunction alleging that respondent
Sangguniang Panlungsod has no authority to regulate the subscriber rates charged by CATV operators
because under Executive Order No. 205, the National Telecommunications Commission (NTC) has the
sole authority to regulate the CATV operation in the Philippines.

May a local government unit regulate the subscriber rates charged by CATV operators within its territorial
The logical conclusion, therefore, is that in light of the above laws and E.O. No. 436, the NTC
exercises regulatory power over CATV operators to the exclusion of other bodies.
Like any other enterprise, CATV operation maybe regulated by LGUs under the general welfare
clause. This is primarily because the CATV system commits the indiscretion of crossing public properties.
(It uses public properties in order to reach subscribers.) The physical realities of constructing CATV
system the use of public streets, rights of ways, the founding of structures, and the parceling of large
regions allow an LGU a certain degree of regulation over CATV operators.
But, while we recognize the LGUs power under the general welfare clause, we cannot sustain
Resolution No. 210. We are convinced that respondents strayed from the well recognized limits of its
power. The flaws in Resolution No. 210 are: (1) it violates the mandate of existing laws and (2) it violates
LGUs must recognize that technical matters concerning CATV operation are within the exclusive
regulatory power of the NTC.