WHO CONTROLS AND REGULATES THE USE OF ROADS?

G.R. NO. 155688, November 28, 2007, NATIVIDAD FIGURACION, FILMA F.

RABOR
and
CATHERINE
MANALASTAS, Petitioners, vs.
SPOUSES
CRESENCIANO, and AMELITA LIBI, Respondents. AUSTRIA-MARTINEZ, J.:
FACTS:
Galileo Figuracion was the owner of Lot No. 899-D-2 in Cebu City. The Cebu City
government expropriated said lot, 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 P23,700.00 for Lot No. 899-D-2 and was issued TCT No. 49454.
In Resolution, 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 (subject lot), consisting of 84 sq.
m.
On the basis thereof, Cebu City Mayor Osmena executed in favor of Isagani
Figuracion a deed of sale over the subject lot for the price of P40,000.00. TCT in the
name of Cebu City was canceled, and in lieu thereof, TCT was issued in the name of
Isagani Figuracion, and TCT No. 113747, in the name of Cebu City,12 over the
remaining portion of Lot No. 899-D-2.
Upon resurvey over two years later, it was ascertained that the subject lot actually
measures 130 sq. m. Accordingly, the Sangguniang Panlungsod of Cebu City
amended Resolution No. 330 by issuing Resolution No. 2345,14 approving the
reconveyance of 130 sq. m. of Lot No. 899-D-2, and Mayor Osmena executed in
favor of Isagani Figuracion an amended deed of sale dated January 24, 1992 over
said portion for P65,000.00.15 TCT No. 113746 and TCT No. 113747 were canceled,
and in lieu thereof, TCT No. 122369 16 was issued on September 30, 1992 to Isagani
Figuracion.
It appearing that herein respondents had been using the subject lot, and refused to
vacate it despite demand, petitioners, as successors-in-interest of Isagani Figuracion,
filed against respondents a complaint for unlawful detainer, in the Municipal Trial
Court, which declared that petitioners are entitled to possession of the subject lot and
ordering respondents to remove the fence they had constructed. MTC was affirmed
by RTC, which, then, was upheld by CA.
Undaunted, respondents filed against petitioners a complaint for easement in the
RTC praying that they be granted a right of way over the subject lot. However,

respondents twice amended their complaint to implead Cebu City, and shifted to a
different cause of action -- that is, from one for the establishment of an easement of
right of way over the subject lot to one for the annulment of a) Resolutions No. 330
and No. 2345, b) the January 24, 1992 deed of sale in favor of Isagani Figuracion,
and c) TCT No. 122309, and the payment of damages.
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.
Petitioners filed their own Answer,23 pointing out that the complaint in Civil Case No.
CEB-21193 is barred by the June 26, 1995 MTC decision in Civil Case No. R-34287,
as affirmed by the RTC and CA. They also challenged respondents legal standing to
question the Sangguniang Panlungsod resolutions. RTC decided in favor of
respondents and declared Resolution, deed of sale and TCT as null and void.
Only petitioners appealed to the CA which affirmed the RTC decision. The CA also
denied petitioners motion for reconsideration.
ISSUE: Whether or not private land is expropriated for a particular public use, and
subesuently the purpowe was abanded, can be returned to the former owner.
HELD: Yes. The Second Amended Complaint in Civil Case No. CEB-21193 should
have been dismissed by the trial court.
The third issue on the legal standing of respondents to institute Civil Case No. CEB21193 is primordial.
Both courts are mistaken. They approached the issue from the wrong perspective, in
the process losing sight of three important facts:
First, based on their second amended complaint, what respondents seek is the
annulment of TCT No. 122309, Resolutions No. 330 and 2345, as well as the deed of
sale and amended deed of sale of the subject lot between Cebu City and petitioners.
Second, while respondents are seeking the cancellation of TCT No. 122309, they are
not themselves claiming title to or right of possession of the subject lot. It must be
emphasized that in their second amended complaint, they even abandoned their
demand for a right of way over the property.
Finally, the subject lot was part of Lot No. 899-D-2 which Cebu City expropriated for
the construction of a city street.

Clearly, respondents have no interest in the title or possession of Lot No. 899-D-2-A.
The situation would have been different had respondents maintained their demand for
a right of way over the property. But as the records disclose, they abandoned this
demand. Respondents, therefore, are not at all the proper parties to file for annulment
of petitioners' title.
Moreover, in essence and effect, Civil Case is actually for reversion of the subject lot,
as a portion of Lot to the public domain.
Reversion is a proceeding by which the State seeks the return of lands of the public
domain or the improvements thereon through the cancellation of private title
erroneously or fraudulently issued over it.32 The one crucial element which sets it
apart from all other actions involving possession or title to property is the positive
averment in the complaint of state ownership of the property in dispute.33
Herein respondents are not even lessees of the subject lot. Their sole interest is in
the use of the property as access to Escario Street. Such interest is merely tangential
to any issue regarding the ownership and possession of the property; hence, it is not
sufficient to vest in respondents legal standing to sue for reversion of the property.
Unfortunately, they abandoned their initial cause of action (right of way) when they
failed to allege the same in their Second Amended Complaint.
Section 101 of the Public Land Act is categorical: All actions for the reversion to the
government of lands of the public domain or improvements thereon shall be instituted
by the Solicitor General or the officer acting in his stead, in the proper courts, in the
name of the Commonwealth [now Republic] of the Philippines.
Lot No. 899-D-2-A, being part of Lot No. 899-D, which was expropriated by Cebu City
for the construction of N. Escario Street, is property of the public domain, the
reconveyance of which is subject to strict legal requirements.
Foremost among the requirements is that the public property sought to be
reconveyed be alienable.
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. 41 However, under Section 10,
Chapter II of the Local Government Code,42 Congress delegated to political
subdivisions some control of local roads, viz.:
Section 21. Closure and Opening of Roads. (a) A local government unit may,
pursuant to an ordinance, permanently or temporarily close or open any local
road, alley, park, or square falling within its jurisdiction: Provided, however,
That in case of permanent closure, such ordinance must be approved by at
least two-thirds (2/3) of all the members of the Sanggunian, and when

necessary, an adequate substitute for the public facility that is subject to

closure is provided.
(b) No such way or place or any part thereof shall be permanently closed
without making provisions for the maintenance of public safety therein. A
property thus permanently withdrawn from public use may be used or
conveyed for any purpose for which other real property belonging to the local
government unit concerned may be lawfully used or conveyed: Provided,
however, That no freedom park shall be closed permanently without provision
for its transfer or relocation to a new site.
Moreover, through the Revised Charter of Cebu City (Republic Act No.
3857),43 Congress specifically delegated to said political subdivision the
following authority to regulate its city streets:
Section 31. Legislative powers. Any provision of law and executive orders to the
contrary notwithstanding, the City Council shall have the following legislative powers:
(34) To provide for the laying out, construction, improvement and maintenance,
including lighting, cleaning, and sprinkling of streets, avenues, boulevards, alleys,
sidewalks, wharves, piers, parks, cemeteries, and other public places, and to
regulate the use thereof; to provide for the construction and maintenance and
regulate the use of bridges, viaducts and culverts; to close any city road, street,
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.(Emphasis
supplied).
The other requirement for a valid reconveyance is that it be established that the
former owner or his successors-in-interest, petitioners in this case, have the right to
repurchase said property.
The question presented by the petitioner and demurrer is this: 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?
The answer to that question 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 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 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.
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. Respondents themselves
acknowledge that the subject lot was not included in the construction of Escario
Street. Through the Resolutions, Cebu City ineluctably recognized the right of
petitioners, as successors-in-interest of the former owner, to repurchase the subject
lot. The Resolutions, issued by the city government in exercise of its regular and
official functions, constitute clear and positive evidence of the intention of Cebu City
to return or reconvey to the former owner or his successor-in-interest, by way of sale,
the portion of the expropriated property that is no longer needed for the purpose for
which it was intended.

FACTORS TO CONSIDER IN VACATING A STREET

G.R. No. L-29910, April 25, 1969, ANTONIO C. FAVIS, plaintiff-appellant, vs. THE
CITY OF BAGUIO and THE SHELL COMPANY OF THE PHILIPPINES,
LIMITED, defendants-appellees.

A parcel of land, known as Lot No. 25 of the Market Subdivision and shown
as "Lot A" on Sketch Plan ... marked "Exhibit A" and made a part hereof,
situated in the City of Baguio, containing an area of 335 sq. m....n and
Also a parcel of land containing an area of 100 sq. m. more or less, marked
as "Lot B" on Sketch Plan...

SANCHEZ, J.:
The facts are as follows:
On April 30, 1957, Antonio Favis bought a parcel of land of about 1,000 square
meters Lot 2-E-3-B-3-B-2 of the subdivision plan (LRC) Psd-2179 from the
Assumption Convent, Inc. Said lot is bounded on the southwest by Lot 2-E-3-B-3-B-1
(proposed road), owned by Assumption Convent, Inc. and part of subdivision plan
Psd-2179.
Simultaneous with the sale, Assumption donated to the City "for road purposes"
the lot indicated in its subdivision plan as the proposed road Lot 2-E-3-B-3-B-1
aforesaid. This donated road is used by Favis as his means of egress and ingress
from his residence to a public street called Lapu-Lapu Street.
Lapu-Lapu Street is actually Lot 27 in the amendatory plan (Bcs-56-Amd 2,
Residence Section "B") And is a portion of a big tract of land registered in the name of
the City, known as Baguio Market Subdivision, for all of which the City holds Transfer
Certificate of Title No. 2209. branches out to various parts of the market subdivision.
From its intersecting point with Dagohoy Street and going northward, Lapu-Lapu
Street is eight (8) meters wide; 1 it abruptly ends as it meets portions of two lots the
donated road aforementioned and the lot owned by Olmina Fernandez (Lot 2-E-3-B1-A, Bsd-26963). Fernandez' lot is fenced, with buildings; and there is a sharp
depression of at least 2 meters at the precise point it meets Lapu-Lapu Street. Ocular
inspection conducted by the trial court disclosed that at the exact connecting point of
Lapu-Lapu Street and the donated road (which leads to appellant's land), the road
opening is only 2.5 meters wide.
Lot 25 of the Baguio Market Subdivision is northernmost in said subdivision and
contains an area of approximately 400 square meters. Immediately next to it, to the
north, is the lot of Olmina Fernandez aforesaid. As far back as June, 1947, the City,
by virtue of Resolution No. 115, Series of 1947, of the City Council of Baguio leased
this Lot 25 to Shell for a ten-year period renewable for another ten years. Shell
constructed thereon a service station of about 335 square meters.
On May 10, 1961, the City Council of Baguio passed Resolution No. 132 authorizing
the City thru its Mayor to lease to Shell two parcels of land described as follows:

Lot 25 (Lot A), it is to be noted, is the same lot leased to Shell way back in June, 1947
and the lease of Lot B is merely an addition thereto. This additional area taken from
Lapu-Lapu Street is five (5) meters wide and twenty (20) meters long and abuts Lot
25.
About three weeks later, the City, thru its Mayor entered into a formal contract of
lease with Shell. 2
Shell filed an application with the Office of the City Engineer of Baguio for a building
permit for the construction of a new and bigger gasoline station on the leased
premises. Said office, in a letter to the City Council thru the City Mayor dated June 30,
1961, noted that the leased "[1] to 'B' which consists of 100 square meters is exactly
within the road right-of-way of Lapu-Lapu Street," is for public use, and may not be
leased.
On July 5, 1961, appellant Antonio C. Favis lodged a letter-protest against the
additional lease made in favor of Shell. He claimed that it would diminish the width of
Lapu-Lapu Street to five meters only; that it would destroy the symmetry of the said
street thus making it look very ugly; and that the City was bereft of authority to lease
any portion of its public streets in favor of anyone.
Apparently to obviate any and all objections to the lease of the additional area to
Shell, the City Council of Baguio, on July 19, 1961, passed Resolution No. 215,
amending Resolution No. 132, Series of 1961, by converting that "portion of LapuLapu Street lying southeast from Lot B of the sketch plan prepared March 10, 1961 by
Private Land Surveyor Perfecto B. Espiritu, beginning at this portion's intersection
with Dagohoy Street, into an alley 5.00 meters wide (4 m. now in actual use);
declaring for this purpose, that said Lot B shall not be a part of this alley."
On November 29, 1961, Favis commenced suit for the annulment of the lease
contract with damages in the Court of First Instance of Baguio. 3 He prayed that (1)
defendants be ordered to stop, remove and/or demolish whatever constructions had
been introduced at the additional leased area on Lapu-Lapu Street; (2) the building
permit and contract of lease entered into by and between the defendants be
cancelled and revoked for being null and void; and (3) defendants be directed to pay,
jointly and severally, actual, compensatory, corrective and consequential damages
totalling P50,000, attorneys' fees in the sum of P2,000, and the costs.

After hearing, the lower court, on May 21, 1962, rendered judgment uphelding the two
questioned resolutions and dismissing the complaint, with costs.
We first address
appeal.lawphi1.nt

ourselves

to

the

preliminary

questions

raised

in

the

1. Amongst these is appellant's charge that the resolutions directing the partial closing
of Lapu-Lapu Street and the lease thereof are invalid. Because, so appellant avers,
those resolutions contravene the City Charter. He relies on subsection (L) of Section
2553 of the Revised Administrative Code. It provides that the powers granted to the
City including the power to close streets shall be carried "into effect by
ordinance."
This objection is directed at form, not at substance. It has been held that "even where
the statute or municipal charter requires the municipality to act by ordinance, if a
resolution is passed in the manner and with the statutory formality required in the
enactment of an ordinance, it will be binding and effective as an ordinance." 4 Such
resolution may operate regardless of the name by which it is called. 5
Resolutions No. 132 and 215, Series of 1961, were unanimously approved with all the
councilors present and voting, carried the seal of the city council, were signed by the
City Vice-Mayor, the Presiding Officer, approved by the City Mayor, and attested by
the City Secretary. With the presumption of validity of the resolution and the other
presumption that official duty has been regularly performed, the embattled resolutions
are just as good as ordinances and have the same force.
2. Appellant cites lack of advertisement or direct notice to owners of contiguous
properties whose rights might be affected, as another ground to show invalidity of the
resolutions. The pertinent provision of the charter reads, thus: .
... to carry into effect by ordinance the powers hereinbefore granted in this
subsection, but no ordinance shall provide for more than one project of any
of the kinds named herein, nor create more than one district, assessment,
and fund necessary and appropriate therefor, and in each and every such
ordinance provision shall be made for notice to any and all persons
interested, giving them and each of them not less than two weeks from and
after the date of depositing a notice in the post-office at Baguio in a securely
sealed postpaid wrapper addressed to each person affected thereby and
assessed thereunder at his last known place of residence, or at Baguio if no
place of residence is known, or to an agent who may be or may have been
appointed by such person in writing, in which to appear and file objection to
either the work itself, the method or manner of assessment, the time or times
and method of payment therefor, or to all thereof and such other and further
objection or objections as may seem to any such person or persons
reasonable and proper in the premises: such notice shall set forth the nature
of the proposed improvement, the estimated cost therefor, the total amount

of the assessment to be levied therefor, and the amount to be levied upon

each parcel of the property or possession of the addressee; any and every
such appearance and objection shall be made and heard only before the city
council, and council may, at any such hearing alter, modify, or increase the
area of such district, the total assessment thereof, or any individual area or
assessment objected to therein, and shall decide any and every such
objection within ten days after the filing thereof and give notice of such
decision to the person or persons interested in the manner hereinbefore
provided for notice of such assessment within five days thereafter....6
The requirement of notice specified in the aforequoted provision of the city charter is
not applicable to the case at bar. It will be observed that the notice is to be given "to
any, and all persons interested", to be placed in a securely sealed postpaid wrapper
addressed "to each person affected thereby and assessed thereunder." The accent is
on the word and. The person "affected" must also be "assessed". And then, "such
notice shall set forth the nature of the proposed improvement, the estimated cost
therefor, the total amount of the assessment to be levied therefor, and the amount to
be levied upon each parcel of the property or possession of the addressee." In turn,
the council, after hearing objections, may "alter, modify, or increase the area of [the]
district, the total assessment thereof, or any individual area or assessment objected
to therein."
Clearly then, this method of giving notice applies only when an ordinance calls for an
assessment. So that where no assessment has been made or is to be made, such
notice need not be given.
In the case at bar, the resolutions in question do not at all call for any kind of
assessment against appellant or his land. Hence, the notice that appellant would want
to have, need not be given.
Besides, appellant did actually protest Resolution 132 authorizing the lease to Shell.
Such protest was, however, overruled. And the council passed Resolution 215, in
effect, confirming the lease. The purpose of notice on the assumption that
appellant is entitled thereto is subserved. Appellant has no cause for complaint.
3. We now direct attention to appellant's plaint that the questioned resolutions
narrowed down, much to his prejudice, the width of Lapu-Lapu Street at its
connecting point with the donated road which, in turn, leads to his land. The reduction
of the usable width from 8 meters to 4 meters cannot be done, so he argues, because
said resolutions violate Executive Order No. 113, Series of 1955, issued by President
Ramon Magsaysay, particularly the following:
IV. MUNICIPAL ROADS:
All highways not included in the above classifications, Municipal and city
roads shall have a right-of-way of not less than ten (10) meters; provided

that the principal streets of town sites located on public lands shall have a
width of sixty (60) meters and all other streets a width of not less than fifteen
(15) meters.7
We do not go along with appellant. First, because the 2.5 meter opening connecting
the donated road and Lapu-Lapu Street has always been that wide since the donated
road was opened. The fact that this opening is 2.5 meters, is confirmed by the ocular
inspection personally made by the trial judge himself. The occupancy by Shell of a
portion of the road right-of-way did not in any way put appellant to any more
inconvenience than he already had.His outlet to Lapu-Lapu Street of 2.5 meters still
remains the same.
In the second place, the resolutions in question do not have the effect of decreasing
the width of the opening because said opening is far from the leased portion of LapuLapu Street. The said leased portion is on the left side of Lapu-Lapu Street, whereas
the opening lies on the right uppermost part of Lapu-Lapu Street. That leased strip
does not reach said opening. In fact, while the lease contract authorized Shell to take
5 meters wide of Lapu-Lapu Street, Shell occupied only 4 meters wide. 8
Thirdly, the executive order could not have been violated because even before its
promulgation, Lapu-Lapu Street was only 8 meters wide, and the said executive order
did not demand widening to 10 meters of existing streets. For it to have so ordered
would have entailed huge expenditure not only on the part of Baguio City but many
other municipal corporations as well which have streets less than 10 meters wide.
For, compensation for the expropriation of private property would have to be given.
4. The main thrust of appellant's arguments is that the city council does not have the
power to close city streets like Lapu-Lapu Street. He asserts that since municipal
bodies have no inherent power to vacate or withdraw a street from public use, there
must be a specific grant by the legislative body to the city or municipality concerned.
Considering that "municipal corporations in the Philippines are mere creatures of
Congress; that, as such, said corporations possessed, and may exercise, only such
power as Congress may deem fit to grant thereto", 9 a reference to the organic act of
the City of Baguio appears to be in order. In subsection (L) of Section 2558 of the
Review Administrative Code (Baguio Charter), the language of the grant of authority
runs thus
(L) To provide for laying out, opening, extending, widening,
straightening, closing up, constructing, or regulating, in whole or in part, any
public plaza, square, street, sidewalk, trail, park, waterworks, or water
remains, or any cemetery, sewer, sewer connection or connections, either
on, in, or upon public or private property; .... 10
Undoubtedly, the City is explicitly empowered to close a city street.

We may drive home the point by presenting here the converse of the rule as set forth
in Unson vs. Lacson, supra. There, as here, the municipal board passed an ordinance
(No. 3470) withdrawing the northern portion of Callejon del Carmen from public use,
declaring it patrimonia property of the City of Manila and authorizing its lease to
Genato Commercial Corporation. Unson had a lot bordering Callejon del Carmen on
which several buildings stood. One of such buildings was known as "Commerce
Building". Prior to the construction of Genato's building on the leased premises,
Unson's lot had on its southern boundary two exits on Callejon del Carmen which had
to be closed upon the construction of said building. Unson went to court alleging that
the ordinance and the contract of lease with Genato were illegal. The trial court
upheld the city's authority to withdraw such alley for public use and to convert it into
patrimonial property. But, on appeal, we held:
In this connection, respondents have been unable to cite any legal provision
specifically vesting in the City of Manila the power to close Callejon del
Carmen. Indeed, section 18(x) of Republic Act No. 409 upon which
appellees rely authorizes the Municipal Board of Manila "subject to the
provisions of existing laws, to provide for the laying out, construction and
improvement ... of streets, avenues, alleys ... and other public places," but it
says nothing about the closing of any such places. The significance of this
silence becomes apparent when contrasted with section 2246 of the Revised
Administrative Code, explicitly vesting in municipal councils of regularly
organized municipalities the power to close any municipal road, street, alley,
park or square, provided that persons prejudiced thereby are duly
indemnified, and that the previous approval of the Department Head shall
have been secured. The express grant of such power to the aforementioned
municipalities and the absence of said grant to the City of Manila lead to no
other conclusion than that the power was intended to be withheld from the
latter.11
5. So it is, that appellant may not challenge the city council's act of withdrawing a strip
of Lapu-Lapu Street at its dead end from public use and converting the remainder
thereof into an alley. These are acts well within the ambit of the power to close a city
street. The city council, it would seem to us, is the authority competent to determine
whether or not a certain property is still necessary for public use. 12
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. 13
Deemed as material factors which a municipality must consider in deliberating upon
the advisability of closing a street are: "the topography of the property surrounding the
street in the light of ingress and egress to other streets; the relationship of the street
in the road system throughout the subdivision; the problem posed by the 'dead end' of
the street; the width of the street; the cost of rebuilding and maintaining the street as

contrasted to its ultimate value to all of the property in the vicinity; the inconvenience
of those visiting the subdivision; and whether the closing of the street would cut off
any property owners from access to a street." 14

charter powers given the City of Baguio (Section 2541, Revised Administrative Code
[Charter of the City of Baguio] ) is to "lease ... real ... property, for the benefit of the
city...."

We now take a look at the factors Considered by the City Council of Baguio in
vacating a portion of Lapu-Lapu Street. These appear in the resolution (Resolution
215) itself, thus:

7. We now look into appellant's averment that by reducing the original width of LapuLapu Street, his entrance and exit to and from his property has become very difficult;
that it is now impossible for his big trucks and trailers to turn around; that it made the
area around it very dangerous in case of fire; and that it has caused perpetual danger,
annoyance, irreparable loss and damage not only to the public in general but
especially to heroin plaintiff in particular. For all these, he asks for damages.

WHEREAS, that portion of the road right-of-way of Lapu-Lapu Street,

Baguio, beginning with its intersection, with Dagohoy Street does not have
much traffic, being in fact a dead end street;
AND WHEREAS, the conversion of this portion of Lapu-Lapu Street into a
five-meter alley would neither prejudice nor damage any person or property;
AND WHEREAS, in the subdivision scheme of the burned area of the City
Market Subdivision, already approved by the City Council, provision was
made for another road behind Lapu-Lapu Street interesting Dagohoy Street.
Besides, there are the specific findings by the trial court that the "2.5 opening is
sufficient for Plaintiff to enter and exit from the lot he purchased from Assumption
Convent, Inc."; that the "present road right of way was rendered narrow by
surrounding properties and is sufficient for the needs of the Plaintiff"; and that the
"portion leased to Shell Company was not necessary for public use." We are bound
by these findings of fact.
By the embattled resolutions, no right of the public is overwhelmed, none defeated.
Public interest was not at all disregarded. On the contrary, some benefit did flow from
the withdrawal of a portion of the street and the lease thereof. The City saves from
the cost of maintenance, gets some income yet.
Given the precept that the discretion of a municipal corporation is broad in scope and
should thus be accorded great deference in the spirit of the Local Autonomy Law
(R.A. 2264), and absent a clear abuse of discretion, we hold that the withdrawal for
lease of the disputed portion of Lapu-Lapu Street and the conversion of the remainder
of the dead-end part thereof into an alley, does not call for, and is beyond the reach
of, judicial interference.
6. From the fact that the leased strip of 100 square meters was withdrawn from public
use, it necessarily follows that such leased portion becomes patrimonial property.
Article 422 of the Civil Code indeed provides that property of public domain, "when no
longer intended for public use or public service, shall form part of the patrimonial
property of the State." Authority is not wanting for the proposition that property for
public use of provinces and towns are governed by the same principles as property of
public dominion of the same character." 15 There is no doubt that the strip withdrawn
from public use and held in private ownership may be given in lease. For amongst the

First to the governing principle: "The general rule is that one whose property does not
abut on the closed section of a street has no right to compensation for the closing or
vacation of the street, if he still has reasonable access to the general system of
streets. The circumstances in some cases may be such as to give a right to damages
to a property owner, even though his property does not abut on the closed
section. But to warrant recovery in any such case the property owner must show that
the situation is such that he has sustained special damages differing in from those
sustained by kind, and not merely in degree, the public generally." 16
In the case at bar, no private right of appellant has been invaded. No special damage
or damages he will incur by reason of the closing of a portion of Lapu-Lapu Street at
its dead-end. His property does not abut that street. In fact, the court has found that
the remaining portion of Lapu-Lapu Street, which actually is 4 meters in width, is
sufficient for the needs of appellant and that the leased portion subject of this suit
"was not necessary for public use." Furthermore, it is physically impossible to
connect Lapu-Lapu Street in its entire width 8 meters with the area donated to
the City or Assumption Convent, for the reason that the only outlet between them is
2.5 meters wide. Even appellant's allegation that by reducing the width of Lapu-Lapu
Street it is now impossible for his big trucks to turn around is of dubious veracity on
the face of his testimony that turning around at the original Lapu-Lapu Street or at the
junction of Lapu-Lapu Street and the donated road has not been tried before and that
his trucks actually do their maneuvering at the intersection of Dagohoy Street and
Lapu-Lapu Street. 17 Further, as stated in the resolution, provision has been "made for
another road behind Lapu-Lapu Street and intersecting Dagohoy Street." It has been
said that
The Constitution does not undertake to guarantee to a property owner the
public maintenance of the most convenient route to his door. The law will not
permit him to be cut off from the public thoroughfares, but he must content
himself route for outlet as the regularly constituted public with such authority
may deem most compatible with the public welfare. When he acquires city
property, he does so in tacit recognition of these principles. If, subsequent to
his appreciation, the city authorities abandon a portion of the street to which
his property is not immediately adjacent, he may suffer loss because of the
inconvenience imposed, but the public treasury cannot be required to
recompense him. Such case is damnum absque injuria.18

For the reasons given, the appealed judgment of the Court of First Instance of Baguio
declaring valid Resolution No. 132, Series of 1961, and Resolution No. 215, Series of
1961, both of the City Council of Baguio, and ordering the dismissal of the complaint
as well as the counterclaim, is hereby affirmed.
Costs against plaintiff-appellant.

WHO CONTROLS PARKING IN LOCAL STREETS

On January 3, 1969, the parties, through their respective counsel, filed the following:

G.R. No. L-30727 July 15, 1975, THE CITY OF OZAMIZ, Represented by THE
CITY MAYOR, MUNICIPAL BOARD, CITY TREASURER, and CITY
AUDITOR, petitioner-appellant, vs. SERAPIO S. LUMAPAS and HONORABLE
GERONIMO R. MARAVE, respondents-appellees. ANTONIO, J.:

STIPULATION OF FACTS
COME NOW the plaintiff and the defendants, through their respective counsel,
and unto this Honorable Court respectfully submit this stipulation of facts, to
wit:

FACTS:
Respondent Serapio S. Lumapas is an operator of transportation buses for
passengers and cargoes, under the name of Romar Line, with Ozamiz City and
Pagadian, Zamboanga del Sur, as terminal points, by virtue of a certificate of public
convenience issued to him by the Public Service Commission. On September 15,
1964, the Municipal Board of Ozamiz City enacted ORDINANCE NO. 466 AN
ORDINANCE IMPOSING PARKING FEES FOR EVERY MOTOR VEHICLE PARKED
ON ANY PORTION OF THE EXISTING PARKING SPACE IN THE CITY OF OZAMIZ.
SECTION 3. The word "Parking" as used in this ordinance shall be
construed to mean, when a motor vehicle of whatever kind is stopped on any
portion of the existing parking areas for the purpose of loading and unloading
passengers or cargoes;
SECTION 5. That the City Treasurer or his authorized representative is
hereby empowered to collect the herein parking fees using any form of official
receipt he may devise, from the conductor, driver, operator and/or owner of the
motor vehicles parked in said designated parking areas;
After approval of the above-quoted ordinance, the City of Ozamiz began collecting the
prescribed parking' fees and collected from respondent-appellee Serapio S.
Lumapas, who had paid under protest, the parking fees at One Peso (P1.00) for each
of his buses, from October 1964 to January 1967, or an aggregate amount of
P1,259.00 2 for which official receipts were issued by petitioner.
About four (4) years later, or on January 11, 1968, respondent Serapio S. Lumapas
filed a complaint, dated August 3, 1967 3 against the City of Ozamiz, represented by
the City Mayor, Municipal Board, City Treasurer, and City Auditor, with the Court of
First instance of Misamis Occidental, Branch II (Civil Case No. OZ-159), for recovery
of parking fees, alleging, among others, that said Ordinance No. 466 is ulta vires, and
praying that judgment be issued (1) nullifying Ordinance No. 466, series of 1964, and
(2) ordering the Municipal Board to appropriate the amount of P1,459.00 for the
reimbursement of P1,259.00 he had paid as parking fees, plus P200.00 as attorney's
fees.
On January 25, 1968, petitioner filed its answer, with affirmative defenses 4 to which
respondent-appellee Serapio S. Lumapas filed his reply, dated January 30, 1968. 5

(1) That the area enclosed in red pencil in the sketch is a market site of the
City of Ozamiz which holds the same in its proprietary character as evidenced
by Tax Declaration No. 51234. This area is for public use.
(2) That the Zulueta Street is now extended up to the end of the market site
passing a row of tiendas up to the end marked "toilet" in the sketch plan of
market site when the market building was constructed in 1969;
(3) That on the right side near the row of tiendas and near the toilet and
marked with series of x's and where the buses of plaintiff were parking waiting
for passengers going to the south;
(4) That this space marked "rig parking" in the sketch plan marked "x" has
been designated by City Ordinance No. 233 as a parking place marked Exhibit
"2";
(5) That the defendant City Government has been collecting parking fees and
issued corresponding official receipts to the plaintiff for each unit belonging to
the plaintiff every time it left Ozamiz City from said parking place but once a
day at one peso per unit;
(6) That the total amount of parking fees collected from the plaintiff by the
defendant is P1,243.00 as per official receipts actually counted in the presence
of both parties;
(7) That the plaintiff made a demand for the reimbursement of the total amount
collected from 1964 to 1967 and this demand was received on September 1,
1967, by the City Treasurer and that the City Treasurer replied by first
indorsement dated September 11, 1967, asking for reference and verification;
and
(8) That in reply to said first indorsement, the plaintiff sent a letter to the City
Treasurer dated January 18, 1967, citing cases in support of the demand, and
in answer to that letter, the City Treasurer in his communication dated January
11, 1968, flatly denied payment of the demand.

(9) That the parties will file their respective memoranda within twenty days
from today.
WHEREFORE, it is respectfully prayed of this Honorable Court that judgment
be rendered based upon this stipulation of facts after the parties shall have
submitted their respective memoranda or after the lapse of twenty days from
today.
On the basis of the foregoing Stipulation of Facts, and of the court's finding, after an
ocular inspection of the parking area designated by Ordinance No. 286, series of
1956, 7 superseding Ordinance No. 234, series of 1953, that it is a municipal street,
although part of the public market, said court rendered judgment on March 18, 1969
declaring that such parking fee is in the nature of toll fees for the use of public road
and made in violation of Section 59[b] of Republic Act No. 4136 (Land Transportation
and Traffic Code), there being no prior approval therefor by the President of the
Philippines upon recommendation of the Secretary of Public Works and
Communications (now Public Works). Hence, the present appeal by certiorari.
Petitioner now contends that the lower court erred: (1) in declaring Ordinance No.
466, series of 1964, of Ozamiz City, null and void; (2) in considering parking fees as
road tolls under Section 59[b] of Republic Act No. 4136; (3) in declaring the parking
area as a public street and not the patrimonial property of the city; and (4) in ordering
the reimbursement of parking fees paid by respondent-appellee.
ISSUE: Whether the Municipal Board of the City of Ozamiz, herein petitionerappellant, had the power to enact said Ordinance No. 466.
HELD: YES.
The rule is well-settled that municipal corporations, being mere creatures of the
law, have only such powers as are expressly granted to them and those which
are necessarily implied or incidental to the exercise thereof, and the power to
tax is inherent upon the State and it can only be exercised by Congress, unless
delegated or conferred by it to a municipal corporation. As such, said corporation
has only such powers as the legislative department may have deemed fit to grant. By
reason of the limited powers of local governments and the nature thereof, said
powers are to be construed strictissimi juris and any doubt or ambiguity arising out of
the terms used in granting said powers must be construed against the municipality. 11
The implied powers which a municipal corporation possesses and can exercise
are only those necessarily incident to the powers expressly conferred.
Inasmuch as a city has no power, except by delegation from Congress, in order
to enable it to impose a tax or license fee, the power must be expressly granted
or be necessarily implied in, or incident to, the powers expressly conferred
upon the city.

Under Sec. 15[Y] of the Ozamiz City Charter (Rep. Act No. 321), the municipal board
has the power "... to regulate the use of streets, avenues, alleys, sidewalks, wharves,
piers, parks, cemeteries and other public places; ...", and in subsection [nn] of the
same section 15, the authority "To enact all ordinances it may deem necessary and
proper for the sanitation and safety, the furtherance of prosperity and the promotion of
the morality, peace, good order, comfort, convenience, and general welfare of the city
and its inhabitants, and such others as may be necessary to carry into effect and
discharge the powers and duties conferred by this Charter ..." By this express
legislative grant of authority, police power is delegated to the municipal corporation to
be exercised as a governmental function for municipal purposes.
It is, therefore, patent that the City of Ozamiz has been clothed with full power to
control and regulate its streets for the purpose of promoting the public health, safety
and welfare. Indeed, municipal power to regulate the use of streets is a delegation of
the police power of the national government, and in the exercise of such power, a
municipal corporation can make all necessary and desirable regulations which are
reasonable and manifestly in the interest of public safety and convenience.
In the case at bar, the TPU buses of respondent-appellee Sergio S. Lumapas stopped
on the extended portion of Zulueta Street beside the public market (Exhibit "X-1" of
Exhibit "X", Development Plan for Ozamiz Market Site),and that as soon as the buses
were loaded, they proceeded to the station, about one hundred (100) feet away from
the parking area, where a toll clerk of the City collected the "Parking" fee of P1.00 per
bus once a day, before said buses were allowed to proceed to their destination.
Section 3 of the questioned Ordinance No. 466 defines the word "'parking' to mean
the stoppage of a motor vehicle of whatever kind on any portion of the
existing parking areas for the purpose of loading and unloading passengers or
cargoes." 13 (Emphasis supplied.)
The word "toll" when used in connection with highways has been defined as a duty
imposed on goods and passengers travelling public roads. 14 The toll for use of a toll
road is for its use in travelling thereon, not for its use as a parking place for
vehicles. 15
It is not pretended, however, that the public utility vehicles are subject to the payment,
if they pass without stopping thru the aforesaid sections of Zulueta Street.
Considering that the public utility vehicles are only charged the fee when said
vehicles stop on "any portion of the existing parking areas for the purpose of loading
or unloading passengers or cargoes", the fees collected are actually in the nature of
parking fees and not toll fees for the use of Zulueta Street.
As adverted to above, the Municipal Board of Ozamiz City is expressly granted by its
Charter the power to regulate the use of its streets. The ordinance in question
appears to have been enacted in pursuance of this grant. The parking fee imposed is
minimal in amount, the maximum being only P1.00 a day for each passenger bus and

P1.00 for each cargo truck, the rates being lower for smaller types of vehicles. This
indicates that its purpose is not for revenue but for regulation. Moreover, it is
undeniable that by designating a specific place wherein passenger and freight
vehicles may load and unload passengers and cargoes, benefits are accorded to the
city's residents in the form of increased safety and convenience arising from the
decongestion of traffic.
Undoubtedly the city may impose a fee sufficient in amount to include the
expense of issuing the license and the cost of necessary inspection or police
surveillance connected with the business or calling licensed.
The fees charged in the case at bar are undeniably to cover the expenses for
supervision, inspection and control, to ensure the smooth flow of traffic in the
environs of the public market, and for the safety and convenience of the public.

G.R. No. 78673

March 18, 1991

BRUNO
S.
CABRERA, petitioner,
vs.
HON. COURT OF APPEALS AND THE PROVINCE OF CATANDUANES, VICENTE
M. ALBERTO, ENCARNACION TORRES, SANTIAGO VALDERAMA, JEREMIAS
TRINIDAD, ALFREDO DAYAWON, ZACARIAS TATAD, FELIXBERTO CAMACHO,
RUBEN GONZALES, FELIX RUBIO, RENE ALCANTARA, ARISTEO ARCILLA,
PAMFILO DAYAWON, REMEDIOS BAGADIONG, FREDESWINDO ALCALA,
ELENA S. LATORRE, BALDOMERO TOLENTINO, EULOGIA ALEJANDRO,
ANGELES S. VARGAS, ISIDRO REYES, ANSELMO PEA, and CATALINA
VELA, respondents.
Dominador B. Medroso, Jr. for petitioner.
CRUZ, J.:
On September 19, 1969, the Provincial Board of Catanduanes adopted Resolution
No. 158, providing as follows:
RESOLVED, as it is hereby resolved, to close the old road leading to the
new Capitol Building of this province to traffic effective October 31, 1969,
and to give to the owners of the properties traversed by the new road equal
area as per survey by the Highway District Engineer's office from the old
road adjacent to the respective remaining portion of their properties.
RESOLVED FURTHER, that the Honorable Provincial Governor be, as he is
hereby authorized to sign for and in behalf of the province of Catanduanes,
the pertinent Deed of Exchange and or other documents pertaining thereto;
Pursuant thereto, Deeds of Exchange were executed under which the Province of
Catanduanes conveyed to Remedios R. Bagadiong, Fredeswindo F. Alcala, Elena S.
Latorre, Baldomero Tolentino, Eulogia T. Alejandro, Angeles S. Vargas, and Juan S.
Reyes portions of the closed road in exchange for their own respective properties, on
which was subsequently laid a new concrete road leading to the Capitol Building.
In 1978, part of the northern end of the old road fronting the petitioner's house was
planted to vegetables in 1977 by Eulogia Alejandro. Anselmo Pea, who had bought
Angeles Vargas's share, also in the same part of the road, converted it into a piggery
farm.
Learning about Resolution 158, the petitioner filed on December 29, 1978, a
complaint with the Court of First Instance of Catanduanes for "Restoration of Public
Road and/or Abatement of Nuisance, Annulment of Resolutions and Documents with
Damages." He alleged that the land fronting his house was a public road owned by
the Province of Catanduanes in its governmental capacity and therefore beyond the

commerce of man. He contended that Resolution No. 158 and the deeds of exchange
were invalid, as so too was the closure of the northern portion of the said road.
In a decision dated November 21, 1980, Judge Graciano P. Gayapa, Jr., while holding
that the land in question was not a declared public road but a mere "passageway" or
"short-cut," nevertheless sustained the authority of the provincial board to enact
Resolution No. 158 under existing law. 1 Appeal was taken to the respondent
court, 2which found that the road was a public road and not a trail but just the same
also upheld Resolution 158. It declared:
Pursuant to Republic Act No. 5185, municipal authorities can close, subject
to the approval or direction of the Provincial Board, thoroughfares under
Section 2246 of the Revised Administrative Code. Although in this case the
road was not closed by the municipality of Catanduanes but by the provincial
board of Catanduanes, the closure, nevertheless, is valid since it was
ordered by the approving authority itself. However, while it could do so, the
provincial government of Catanduanes could close the road only if the
persons prejudiced thereby were indemnified, Section 2246 of the Revised
Administrative Code being very explicit on this.
Before us now, the petitioner insists that Sec. 2246 is not applicable because
Resolution No. 158 is not an order for the closure of the road in question but an
authority to barter or exchange it with private properties. He maintains that the public
road was owned by the province in its governmental capacity and, without a prior
order of closure, could not be the subject of a barter. Control over public roads, he
insists, is with Congress and not with the provincial board.
The petitioner alleges that the closure of the road has especially injured him and his
family as they can no longer use it in going to the national road leading to the old
capitol building but must instead pass through a small passageway. For such
inconvenience, he is entitled to damages in accordance with law.
The petition has no merit.
The Court cannot understand how the petitioner can seriously argue that there is no
order of closure when it is there in the resolution, in black and white. Resolution 158
clearly says that it is "hereby resolved to close the old road." The closure is as plain
as day except that the petitioner, with the blindness of those who will not see, refuses
to acknowledge it. The Court has little patience with such puerile arguments. They
border dangerously on a trifling with the administration of justice and can only
prejudice the pleader's cause.
The authority of the provincial board to close that road and use or convey it for other
purposes is derived from the following provisions of Republic Act No. 5185 in relation
to Section 2246 of the Revised Administrative Code:

R.A. No. 5185, Section 11 (II) (a):

II. The following actions by municipal officials or municipal councils, as
provided for in the pertinent sections of the Revised Administrative Code
shall take effect without the need of approval or direction from any official of
the national government: Provided, That such actions shall be subject to
approval or direction by the Provincial Board:
(a) Authority to close thoroughfare under Section 2246;
xxx

xxx

xxx

Sec. 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.
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.
In the case of Cebu Oxygen and Acetylene Co., Inc. v. Bercilles,3 the Court held the
closure of a city street as within the powers of the city council under the Revised
Charter of Cebu City, which provided:
Sec. 31. Legislative Powers. Any provision of law and executive order to
the contrary notwithstanding, the City Council shall have the following
legislative powers:
xxx

xxx

xxx

(34) . . .; to close any city road, street or alley, boulevard, avenue, park or
square. Property thus withdrawn from public servitude may be used or
conveyed for any purpose for which other real property belonging to the City
may be lawfully used or conveyed;
It sustained the subsequent sale of the land as being in accordance not only with the
charter but also with Article 422 of the Civil Code, which provides: "Property of public
dominion, when no longer intended for public use or for public service, shall form part
of the patrimonial property of the State."
In the case of Favis vs. City of Baguio, 4 the power of the City Council of Baguio City
to close city streets and withdraw them from public use was also assailed. This Court
said:

5. So it is, that appellant may not challenge the city council's act of
withdrawing a strip of Lapu-Lapu Street at its dead end from public use and
converting the remainder thereof into an alley. These are acts well within the
ambit of the power to close a city street. The city council, it would seem to
us, is the authority competent to determine whether or not a certain property
is still necessary for public use.
Such power to vacate a street or alley is discretionary. And the discretion will
not ordinarily be controlled or interfered with by the courts, absent a plain
case of abuse or fraud or collusion. Faithfulness to the public trust will be
presumed. So the fact that some private interests may be served incidentally
will not invalidate the vacation ordinance.
While it is true that the above cases dealt with city councils and not the provincial
board, there is no reason for not applying the doctrine announced therein to the
provincial board in connection with the closure of provincial roads. The provincial
board has, after all, the duty of maintaining such roads for the comfort and
convenience of the inhabitants of the province. Moreover, this authority is inferable
from the grant by the national legislature of the funds to the Province of Catanduanes
for the construction of provincial roads. On this matter, Governor Vicente Alberto of
Catanduanes testified as follows:
. . . when the Province was given funds to construct a road that will be more
convenient to the public, more solid and wider and to have a better town
planning whereby the Capitol would be reached directly from the pier for
purposes of improving services to the public, it was recommended by the
District Highway Engineer that a new road would be constructed connecting
the Capitol with the veterans fountain, and believing this recommendation
was for the good of the community, it was carried out. The original
passageway was already unnecessary and since there was a problem of
compensation the land owners where the new road was going to pass, so
they decided to close this passageway and instead of paying the owners of
the property where the new road was to be constructed, they exchanged
some portions of this passageway with properties where the proposed road
would pass.5
The lower court found the petitioner's allegation of injury and prejudice to be without
basis because he had "easy access anyway to the national road, for in fact the
vehicles used by the Court and the parties during the ocular inspection easily passed
and used it, reaching beyond plaintiff's house." However, the Court of Appeals ruled
that the he "was prejudiced by the closure of the road which formerly fronted his
house. He and his family were undoubtedly inconvenienced by the loss of access to
their place of residence for which we believe they should be compensated."
On this issue, the governing principle was laid down in Favis thus:

. . . 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.
This rule was based on the following observations made in Richmond v. City of
Hinton 6 which were quoted with approval by this Court:
The Constitution does not undertake to guarantee to a property owner the
public maintenance of the most convenient route to his door. The law will not
permit him to be cut off from the public thoroughfares, but he must content
himself with such route for outlet as the regularly constituted public authority
may deem most compatible with the public welfare. When he acquires city
property, he does so in tacit recognition of these principles. If, subsequent to
his acquisition, the city authorities abandon a portion of the street to which
his property is not immediately adjacent, he may suffer loss because of the
inconvenience imposed, but the public treasury cannot be required to
recompense him. Such case is damnum absque injuria.
Following the above doctrine, we hold that the petitioner is not entitled to damages
because the injury he has incurred, such as it is, is the price he and others like him
must pay for the welfare of the entire community. This is not a case where his
property has been expropriated and he is entitled to just compensation. The
construction of the new road was undertaken under the general welfare clause. As
the trial judge acutely observed, whatever inconvenience the petitioner has suffered
"pales in significance compared to the greater convenience the new road, which is
wide and concrete, straight to the veterans fountain and down to the pier, has been
giving to the public, plus the fact that the new road adds beauty and color not only to
the town of Virac but also to the whole province of Catanduanes." For the enjoyment
of those benefits, every individual in the province, including the petitioner, must be
prepared to give his share.
The dispositive portion of the challenged decision awarded the petitioner the sum of
P5,000.00 as nominal and/or temperate damages, and the sum of P2,000.00 as and
for attorney's fees. For the reasons stated above, these awards should all be deleted.
The petitioner must content himself with the altruistic feeling that for the prejudice he
has suffered, the price he can expect is the improvement of the comfort and
convenience of the inhabitants of Catanduanes, of whom he is one. That is not a
paltry recompense.
WHEREFORE, the decision of the Court of Appeals dated February 17, 1987, is
AFFIRMED as above modified, with costs against the petitioner.

SO ORDERED.

G.R. No. 93654 May 6, 1992

FRANCISCO U. DACANAY, petitioner, vs. MAYOR MACARIO ASISTIO, JR., CITY
ENGR. LUCIANO SARNE, JR. of Kalookan City, Metro Manila, MILA PASTRANA
AND/OR RODOLFO TEOFE, STALLHOLDERS AND REPRESENTING COSTALLHOLDERS,respondents.

and/or vending areas, under certain terms and

conditions, subject to the approval of the
Metropolitan Manila Commission, and for other
purposes
which is further amplified in Section 2 of the said ordinance, quoted
hereunder:

GRIO-AQUINO, J.:
May public streets or thoroughfares be leased or licensed to market
stallholders by virtue of a city ordinance or resolution of the Metro Manila
Commission? This issue is posed by the petitioner, an aggrieved Caloocan City
resident who filed a special civil action of mandamus against the incumbent city
mayor and city engineer, to compel these city officials to remove the market stalls
from certain city streets which the aforementioned city officials have designated as
flea markets, and the private respondents (stallholders) to vacate the streets.
On January 5, 1979, MMC Ordinance No. 79-02 was enacted by the Metropolitan
Manila Commission, designating certain city and municipal streets, roads and open
spaces as sites for flea markets. Pursuant, thereto, the Caloocan City mayor opened
up seven (7) flea markets in that city. One of those streets was the "Heroes del '96"
where the petitioner lives. Upon application of vendors Rodolfo Teope, Mila Pastrana,
Carmen Barbosa, Merle Castillo, Bienvenido Menes, Nancy Bugarin, Jose Manuel,
Crisaldo Paguirigan, Alejandro Castron, Ruben Araneta, Juanita and Rafael
Malibaran, and others, the respondents city mayor and city engineer, issued them
licenses to conduct vending activities on said street.
In 1987, Antonio Martinez, as OIC city mayor of Caloocan City, caused the demolition
of the market stalls on Heroes del '96, V. Gozon and Gonzales streets. To stop Mayor
Martinez' efforts to clear the city streets, Rodolfo Teope, Mila Pastrana and other
stallowners filed an action for prohibition against the City of Caloocan, the OIC City
Mayor and the City Engineer and/or their deputies (Civil Case No. C-12921) in the
Regional Trial Court of Caloocan City, Branch 122, praying the court to issue a writ of
preliminary injunction ordering these city officials to discontinue the demolition of their
stalls during the pendency of the action.
The court issued the writ prayed for. However, on December 20, 1987, it dismissed
the petition and lifted the writ of preliminary injunction which it had earlier issued. The
trial court observed that:
A perusal of Ordinance 2, series of 1979 of the Metropolitan Manila
Commission will show on the title itself that it is an ordinance
Authorizing and regulating the use of certain city
and/or municipal streets, roads and open spaces
within Metropolitan Manila as sites for flea market

Sec. 2. The streets, roads and open spaces to be used as sites for
flea markets (tiangge) or vending areas; the design, measurement
or specification of the structures, equipment and apparatuses to be
used or put up; the allowable distances; the days and time allowed
for the conduct of the businesses and/or activities herein
authorized; the rates or fees or charges to be imposed, levied and
collected; the kinds of merchandise, goods and commodities sold
and services rendered; and other matters and activities related to
the establishment, maintenance and management and operation of
flea markets and vending areas, shall be determined and
prescribed by the mayors of the cities and municipalities in the
Metropolitan Manila where the same are located, subject to the
approval of the Metropolitan Manila Commission and consistent
with the guidelines hereby prescribed.
Further, it is so provided in the guidelines under the said Ordinance
No. 2 of the MMC that
Sec. 6. In the establishment, operation, maintenance and
management of flea markets and vending areas, the following
guidelines, among others, shall be observed:
xxx xxx xxx
(m) That the permittee shall remove the equipment, facilities and
other appurtenances used by him in the conduct of his
business after
the
close
or
termination
of
business
hours. (Emphasis ours; pp. 15-16, Rollo.)
The trial court found that Heroes del '96, Gozon and Gonzales streets are of public
dominion, hence, outside the commerce of man:
The Heroes del '96 street, V. Gozon street and Gonzales street, being of public
dominion must, therefore, be outside of the commerce of man. Considering the
nature of the subject premises, the following jurisprudence co/principles are
applicable on the matter:

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

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

is also among those required to comply with said Letter of

Instruction.

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

Government vs. Aldecoa, 19 Phil. 505). Even municipalities can not
acquire them for use as communal lands against the state (City of
Manila vs. Insular Government, 10 Phil. 327);

The occupation and use of private individuals of sidewalks and other

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

3) They are not subject to attachment and execution (Tan Toco vs.
Municipal Council of Iloilo, 49 Phil. 52);
4) They cannot be burdened by any voluntary easement (2-II Colin &
Capitant 520) (Tolentino, Civil Code of the Phils., Vol. II, 1983 Ed.
pp. 29-30).
In the aforecited case of Municipality of Cavite vs. Rojas, it was held
that properties for public use may not be leased to private
individuals. Such a lease is null and void for the reason that a
municipal council cannot withdraw part of the plaza from public use.
If possession has already been given, the lessee must restore
possession by vacating it and the municipality must thereupon
restore to him any sums it may have collected as rent.
In the case of City of Manila vs. Gerardo Garcia, 19 SCRA 413, the
Supreme Court held:

From the aforequoted jurisprudence/principles, the Court opines that defendants

have the right to demolish the subject stalls of the plaintiffs, more so when
Section 185, par. 4 of Batas Pambansa Blg. 337, otherwise known as the Local
Government Code provides that the City Engineer shall:
(4) . . .
(c) Prevent the encroachment of private buildings and fences on the streets
and public places;
xxx xxx xxx

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

(j) Inspect and supervise the construction, repair, removal and safety of
private buildings;

This doctrine was reiterated in the case of Baguio Citizens

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

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

An ordinance legalizing the occupancy by squatters of public

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

xxx xxx xxx

xxx xxx xxx

Further, the Charter of the City of Caloocan, Republic Act No. 5502, Art. VII, Sec.
27, par. g, 1 and m, grants the City Engineer similar powers. (Emphasis supplied;
pp. 17-20, Rollo.)
However, shortly after the decision came out, the city administration in Caloocan City
changed hands. City Mayor Macario Asistio, Jr., as successor of Mayor Martinez, did
not pursue the latter's policy of clearing and cleaning up the city streets.

Invoking the trial court's decision in Civil Case No. C-12921, Francisco U. Dacanay, a
concerned citizen, taxpayer and registered voter of Barangay 74, Zone 7, District II of
Caloocan City, who resides on Heroes del '96 Street, one of the affected streets,
wrote a letter dated March 7, 1988 to Mayor Asistio, Jr., calling his attention to the
illegally-constructed stalls on Heroes del '96 Street and asked for their demolition.
Dacanay followed up that letter with another one dated April 7, 1988 addressed to the
mayor and the city engineer, Luciano Sarne, Jr. (who replaced Engineer Arturo
Samonte), inviting their attention to the Regional Trial Court's decision in Civil Case
No. 12921. There was still no response.
Dacanay sought President Corazon C. Aquino's intervention by writing her a letter on
the matter. His letter was referred to the city mayor for appropriate action. The acting
Caloocan City secretary, Asuncion Manalo, in a letter dated August 1, 1988, informed
the Presidential Staff Director that the city officials were still studying the issue of
whether or not to proceed with the demolition of the market stalls.
Dacanay filed a complaint against Mayor Asistio and Engineer Sarne (OMB-0-890146) in the Office of the OMBUDSMAN. In their letter-comment dated April 3, 1989,
said city officials explained that in view of the huge number of stallholders involved,
not to mention their dependents, it would be harsh and inhuman to eject them from
the area in question, for their relocation would not be an easy task.
In reply, Dacanay maintained that respondents have been derelict in the performance
of their duties and through manifest partiality constituting a violation of Section 3(e) of
R.A. 3019, have caused undue injury to the Government and given unwarranted
benefits to the stallholders.
After conducting a preliminary investigation, the OMBUDSMAN rendered a final
evaluation and report on August 28, 1989, finding that the respondents' inaction is
purely motivated by their perceived moral and social responsibility toward their
constituents, but "the fact remains that there is an omission of an act which ought to
be performed, in clear violation of Sections 3(e) and (f) of Republic Act 3019." (pp. 8384, Rollo.) The OMBUDSMAN recommended the filing of the corresponding
information in court.
As the stallholders continued to occupy Heroes del '96 Street, through the tolerance
of the public respondents, and in clear violation of the decision it Civil Case No. C12921, Dacanay filed the present petition for mandamus on June 19, 1990, praying
that the public respondents be ordered to enforce the final decision in Civil Case No.
C-12921 which upheld the city mayor's authority to order the demolition of market
stalls on V. Gozon, Gonzales and Heroes del '96 Streets and to enforce P.D. No. 772
and other pertinent laws.
On August 16, 1990, the public respondents, through the City Legal Officer, filed their
Comment' on the petition. The Office of the Solicitor General asked to be excused

from filing a separate Comment in behalf of the public respondents. The City Legal
Officer alleged that the vending area was transferred to Heroes del '96 Street to
decongest Malonzo Street, which is comparatively a busier thoroughfare; that the
transfer was made by virtue of Barangay Resolution No. 30 s'78 dated January 15,
1978; that while the resolution was awaiting approval by the Metropolitan Manila
Commission, the latter passed Ordinance No. 79-2, authorizing the use of certain
streets and open spaces as sites for flea markets and/or vending areas; that pursuant
thereto, Acting MMC Mayor Virgilio P. Robles issued Executive Order No. 135 dated
January 10, 1979, ordering the establishment and operation of flea markets in
specified areas and created the Caloocan City Flea Market Authority as a regulatory
body; and that among the sites chosen and approved by the Metro Manila
Commission, Heroes del '96 Street has considered "most viable and progressive,
lessening unemployment in the city and servicing the residents with affordable basic
necessities."
The petition for mandamus is meritorious.
There is no doubt that the disputed areas from which the private respondents' market
stalls are sought to be evicted are public streets, as found by the trial court in Civil
Case No. C-12921. A public street is property for public use hence outside the
commerce of man (Arts. 420, 424, Civil Code). Being outside the commerce of man, it
may not be the subject of lease or other contract (Villanueva et al. vs. Castaeda and
Macalino, 15 SCRA 142, citing the Municipality of Cavite vs. Rojas, 30 SCRA 602;
Espiritu vs. Municipal Council of Pozorrubio, 102 Phil. 869; and Muyot vs. De la
Fuente, 48 O.G. 4860).
As the stallholders pay fees to the City Government for the right to occupy portions of
the public street, the City Government, contrary to law, has been leasing portions of
the streets to them. Such leases or licenses are null and void for being contrary to
law. The right of the public to use the city streets may not be bargained away through
contract. The interests of a few should not prevail over the good of the greater
number in the community whose health, peace, safety, good order and general
welfare, the respondent city officials are under legal obligation to protect.
The Executive Order issued by Acting Mayor Robles authorizing the use of Heroes
del '96 Street as a vending area for stallholders who were granted licenses by the city
government contravenes the general law that reserves city streets and roads for
public use. Mayor Robles' Executive Order may not infringe upon the vested right of
the public to use city streets for the purpose they were intended to serve: i.e., as
arteries of travel for vehicles and pedestrians. As early as 1989, the public
respondents bad started to look for feasible alternative sites for flea markets. They
have had more than ample time to relocate the street vendors.
WHEREFORE, it having been established that the petitioner and the general public
have a legal right to the relief demanded and that the public respondents have the
corresponding duty, arising from public office, to clear the city streets and restore
them to their specific public purpose (Enriquez vs. Bidin, 47 SCRA 183; City of Manila

vs. Garcia et al., 19 SCRA, 413 citing Unson vs. Lacson, 100 Phil. 695), the
respondents City Mayor and City Engineer of Caloocan City or their successors in
office are hereby ordered to immediately enforce and implement the decision in Civil
Case No. C-1292 declaring that Heroes del '96, V. Gozon, and Gonzales Streets are
public streets for public use, and they are ordered to remove or demolish, or cause to
be removed or demolished, the market stalls occupying said city streets with utmost
dispatch within thirty (30)days from notice of this decision. This decision is
immediately executory.
SO ORDERED.

G.R. No. 97764 August 10, 1992

LEVY D. MACASIANO, Brigadier General/PNP Superintendent, Metropolitan
Traffic Command, petitioner, vs. HONORABLE ROBERTO C. DIOKNO, Presiding
Judge, Branch 62, Regional Trial Court of Makati, Metro Manila, MUNICIPALITY
OF PARAAQUE, METRO MANILA, PALANYAG KILUSANG BAYAN FOR
SERVICE,respondents.
MEDIALDEA, J.:
The antecedent facts are as follows:
On June 13, 1990, the respondent municipality passed Ordinance No. 86, Series of
1990 which authorized the closure of J. Gabriel, G.G. Cruz, Bayanihan, Lt. Garcia
Extension and Opena Streets located at Baclaran, Paraaque, Metro Manila and the
establishment of a flea market thereon. The said ordinance was approved by the
municipal council pursuant to MMC Ordinance No. 2, Series of 1979, authorizing and
regulating the use of certain city and/or municipal streets, roads and open spaces
within Metropolitan Manila as sites for flea market and/or vending areas, under certain
terms and conditions.
On July 20, 1990, the Metropolitan Manila Authority approved Ordinance No. 86, s.
1990 of the municipal council of respondent municipality subject to the following
conditions:
1. That the aforenamed streets are not used for vehicular traffic, and that the
majority of the residents do not oppose the establishment of the flea
market/vending areas thereon;
2. That the 2-meter middle road to be used as flea market/vending area shall be
marked distinctly, and that the 2 meters on both sides of the road shall be used
by pedestrians;
3. That the time during which the vending area is to be used shall be clearly
designated;
4. That the use of the vending areas shall be temporary and shall be closed once
the reclaimed areas are developed and donated by the Public Estate Authority.
On June 20, 1990, the municipal council of Paraaque issued a resolution authorizing
Paraaque Mayor Walfrido N. Ferrer to enter into contract with any service
cooperative for the establishment, operation, maintenance and management of flea
markets and/or vending areas.

On August 8, 1990, respondent municipality and respondent Palanyag, a service

cooperative, entered into an agreement whereby the latter shall operate, maintain and
manage the flea market in the aforementioned streets with the obligation to remit
dues to the treasury of the municipal government of Paraaque. Consequently,
market stalls were put up by respondent Palanyag on the said streets.
On September 13, 1990, petitioner Brig. Gen. Macasiano, PNP Superintendent of the
Metropolitan Traffic Command, ordered the destruction and confiscation of stalls
along G.G. Cruz and J. Gabriel St. in Baclaran. These stalls were later returned to
respondent Palanyag.
On October 16, 1990, petitioner Brig. General Macasiano wrote a letter to respondent
Palanyag giving the latter ten (10) days to discontinue the flea market; otherwise, the
market stalls shall be dismantled.
Hence, on October 23, 1990, respondents municipality and Palanyag filed with the
trial court a joint petition for prohibition and mandamus with damages and prayer for
preliminary injunction, to which the petitioner filed his memorandum/opposition to the
issuance of the writ of preliminary injunction.
On October 24, 1990, the trial court issued a temporary restraining order to enjoin
petitioner from enforcing his letter-order of October 16, 1990 pending the hearing on
the motion for writ of preliminary injunction.
On December 17, 1990, the trial court issued an order upholding the validity of
Ordinance No. 86 s. 1990 of the Municipality' of Paraaque and enjoining petitioner
Brig. Gen. Macasiano from enforcing his letter-order against respondent Palanyag.
Hence, this petition was filed by the petitioner thru the Office of the Solicitor General
alleging grave abuse of discretion tantamount to lack or excess of jurisdiction on the
part of the trial judge in issuing the assailed order.
The sole issue to be resolved in this case is whether or not an ordinance or resolution
issued by the municipal council of Paraaque authorizing the lease and use of public
streets or thoroughfares as sites for flea markets is valid.
The Solicitor General, in behalf of petitioner, contends that municipal roads are used
for public service and are therefore public properties; that as such, they cannot be
subject to private appropriation or private contract by any person, even by the
respondent Municipality of Paraaque. Petitioner submits that a property already
dedicated to public use cannot be used for another public purpose and that absent a
clear showing that the Municipality of Paraaque has been granted by the legislature
specific authority to convert a property already in public use to another public use,
respondent municipality is, therefore, bereft of any authority to close municipal roads
for the establishment of a flea market. Petitioner also submits that assuming that the
respondent municipality is authorized to close streets, it failed to comply with the

conditions set forth by the Metropolitan Manila Authority for the approval of the
ordinance providing for the establishment of flea markets on public streets. Lastly,
petitioner contends that by allowing the municipal streets to be used by market
vendors the municipal council of respondent municipality violated its duty under the
Local Government Code to promote the general welfare of the residents of the
municipality.

are devoted to public service are deemed public and are under the absolute control of
Congress (Province of Zamboanga del Norte v. City of Zamboanga, L-24440, March
28, 1968, 22 SCRA 1334). Hence, local governments have no authority whatsoever to
control or regulate the use of public properties unless specific authority is vested upon
them by Congress. One such example of this authority given by Congress to the local
governments is the power to close roads as provided in Section 10, Chapter II of the
Local Government Code, which states:

In upholding the legality of the disputed ordinance, the trial court ruled:
. . . that Chanter II Section 10 of the Local Government Code is a statutory grant
of power given to local government units, the Municipality of Paraaque as such,
is empowered under that law to close its roads, streets or alley subject to
limitations stated therein (i.e., that it is in accordance with existing laws and the
provisions of this code).
xxx xxx xxx
The actuation of the respondent Brig. Gen. Levi Macasiano, though apparently
within its power is in fact an encroachment of power legally vested to the
municipality, precisely because when the municipality enacted the ordinance in
question the authority of the respondent as Police Superintendent ceases to
be operative on the ground that the streets covered by the ordinance ceases to
be a public thoroughfare. (pp. 33-34, Rollo)
We find the petition meritorious. In resolving the question of whether the disputed
municipal ordinance authorizing the flea market on the public streets is valid, it is
necessary to examine the laws in force during the time the said ordinance was
enacted, namely, Batas Pambansa Blg. 337, otherwise known as Local Government
Code, in connection with established principles embodied in the Civil Code an
property and settled jurisprudence on the matter.
The property of provinces, cities and municipalities is divided into property for public
use and patrimonial property (Art. 423, Civil Code). As to what consists of property for
public use, Article 424 of Civil Code states:
Art. 424. Property for public use, in the provinces, cities and municipalities,
consists of the provincial roads, city streets, the squares, fountains, public
waters, promenades, and public works for public service paid for by said
provinces, cities or municipalities.
All other property possessed by any of them is patrimonial and shall be
governed by this Code, without prejudice to the provisions of special laws.
Based on the foregoing, J. Gabriel G.G. Cruz, Bayanihan, Lt. Garcia Extension and
Opena streets are local roads used for public service and are therefore considered
public properties of respondent municipality. Properties of the local government which

Sec. 10. Closure of roads. A local government unit may likewise, through its
head acting pursuant to a resolution of its sangguniang and in accordance with
existing law and the provisions of this Code, close any barangay, municipal, city
or provincial road, street, alley, park or square. No such way or place or any part
of thereof shall be close without indemnifying any person prejudiced thereby. A
property thus withdrawn from public use may be used or conveyed for any
purpose for which other real property belonging to the local unit concerned might
be lawfully used or conveyed. (Emphasis ours).
However, the aforestated legal provision which gives authority to local government
units to close roads and other similar public places should be read and interpreted in
accordance with basic principles already established by law. These basic principles
have the effect of limiting such authority of the province, city or municipality to close a
public street or thoroughfare. Article 424 of the Civil Code lays down the basic
principle that properties of public dominion devoted to public use and made available
to the public in general are outside the commerce of man and cannot be disposed of
or leased by the local government unit to private persons. Aside from the requirement
of due process which should be complied with before closing a road, street or park,
the closure should be for the sole purpose of withdrawing the road or other public
property from public use when circumstances show that such property is no longer
intended or necessary for public use or public service. When it is already withdrawn
from public use, the property then becomes patrimonial property of the local
government unit concerned (Article 422, Civil Code; Cebu Oxygen, etc. et al. v.
Bercilles, et al., G.R. No. L-40474, August 29, 1975, 66 SCRA 481). It is only then
that the respondent municipality can "use or convey them for any purpose for which
other real property belonging to the local unit concerned might be lawfully used or
conveyed" in accordance with the last sentence of Section 10, Chapter II of Blg. 337,
known as Local Government Code. In one case, the City Council of Cebu, through a
resolution, declared the terminal road of M. Borces Street, Mabolo, Cebu City as an
abandoned road, the same not being included in the City Development Plan.
Thereafter, the City Council passes another resolution authorizing the sale of the said
abandoned road through public bidding. We held therein that the City of Cebu is
empowered to close a city street and to vacate or withdraw the same from public use.
Such withdrawn portion becomes patrimonial property which can be the object of an
ordinary contract (Cebu Oxygen and Acetylene Co., Inc. v. Bercilles, et al., G.R. No.
L-40474, August 29, 1975, 66 SCRA 481). However, those roads and streets which
are available to the public in general and ordinarily used for vehicular traffic are still
considered public property devoted to public use. In such case, the local government
has no power to use it for another purpose or to dispose of or lease it to private

persons. This limitation on the authority of the local government over public properties
has been discussed and settled by this Court en banc in "Francisco V. Dacanay,
petitioner v. Mayor Macaria Asistio, Jr., et al., respondents, G.R. No. 93654, May 6,
1992." This Court ruled:
There is no doubt that the disputed areas from which the private respondents'
market stalls are sought to be evicted are public streets, as found by the trial
court in Civil Case No. C-12921. A public street is property for public use hence
outside the commerce of man (Arts. 420, 424, Civil Code). Being outside the
commerce of man, it may not be the subject of lease or others contract
(Villanueva, et al. v. Castaeda and Macalino, 15 SCRA 142 citing the
Municipality of Cavite v. Rojas, 30 SCRA 602; Espiritu v. Municipal Council of
Pozorrubio, 102 Phil. 869; And Muyot v. De la Fuente, 48 O.G. 4860).
As the stallholders pay fees to the City Government for the right to occupy
portions of the public street, the City Government, contrary to law, has been
leasing portions of the streets to them. Such leases or licenses are null and void
for being contrary to law. The right of the public to use the city streets may not be
bargained away through contract. The interests of a few should not prevail over
the good of the greater number in the community whose health, peace, safety,
good order and general welfare, the respondent city officials are under legal
obligation to protect.
The Executive Order issued by acting Mayor Robles authorizing the use of
Heroes del '96 Street as a vending area for stallholders who were granted
licenses by the city government contravenes the general law that reserves city
streets and roads for public use. Mayor Robles' Executive Order may not infringe
upon the vested right of the public to use city streets for the purpose they were
intended to serve: i.e., as arteries of travel for vehicles and pedestrians.
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 noncompliance by respondent municipality of the conditions imposed by the former for
the approval of the ordinance, to wit:
1. That the aforenamed streets are not used for vehicular traffic, and that the
majority of the residents do(es) not oppose the establishment of the flea
market/vending areas thereon;
2. That the 2-meter middle road to be used as flea market/vending area shall be
marked distinctly, and that the 2 meters on both sides of the road shall be used
by pedestrians;
3. That the time during which the vending area is to be used shall be clearly
designated;

4. That the use of the vending areas shall be temporary and shall be closed once
the reclaimed areas are developed and donated by the Public Estate Authority.
(p. 38, Rollo)
Respondent municipality has not shown any iota of proof that it has complied with the
foregoing conditions precedent to the approval of the ordinance. The allegations of
respondent municipality that the closed streets were not used for vehicular traffic and
that the majority of the residents do not oppose the establishment of a flea market on
said streets are unsupported by any evidence that will show that this first condition
has been met. Likewise, the designation by respondents of a time schedule during
which the flea market shall operate is absent.
Further, it is of public notice that the streets along Baclaran area are congested with
people, houses and traffic brought about by the proliferation of vendors occupying the
streets. To license and allow the establishment of a flea market along J. Gabriel, G.G.
Cruz, Bayanihan, Lt. Garcia Extension and Opena streets in Baclaran would not help
in solving the problem of congestion. We take note of the other observations of the
Solicitor General when he said:
. . . There have been many instances of emergencies and fires where
ambulances and fire engines, instead of using the roads for a more direct access
to the fire area, have to maneuver and look for other streets which are not
occupied by stalls and vendors thereby losing valuable time which could,
otherwise, have been spent in saving properties and lives.
Along G.G. Cruz Street is a hospital, the St. Rita Hospital. However, its
ambulances and the people rushing their patients to the hospital cannot pass
through G.G. Cruz because of the stalls and the vendors. One can only imagine
the tragedy of losing a life just because of a few seconds delay brought about by
the inaccessibility of the streets leading to the hospital.
The children, too, suffer. In view of the occupancy of the roads by stalls and
vendors, normal transportation flow is disrupted and school children have to get
off at a distance still far from their schools and walk, rain or shine.
Indeed one can only imagine the garbage and litter left by vendors on the streets
at the end of the day. Needless to say, these cause further pollution, sickness
and deterioration of health of the residents therein. (pp. 21-22, Rollo)
Respondents do not refute the truth of the foregoing findings and observations of
petitioners. Instead, respondents want this Court to focus its attention solely on the
argument that the use of public spaces for the establishment of a flea market is well
within the powers granted by law to a local government which should not be interfered
with by the courts.

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.
As what we have said in the Dacanay case, the general public have a legal right to
demand the demolition of the illegally constructed stalls in public roads and streets
and the officials of respondent municipality have the corresponding duty arising from
public office to clear the city streets and restore them to their specific public purpose.
The instant case as well as the Dacanay case, involves an ordinance which is void
and illegal for lack of basis and authority in laws applicable during its time. However,
at this point, We find it worthy to note that Batas Pambansa Blg. 337, known as Local
Government Lode, has already been repealed by Republic Act No. 7160 known as
Local Government Code of 1991 which took effect on January 1, 1992. Section 5(d)
of the new Code provides that rights and obligations existing on the date of effectivity
of the new Code and arising out of contracts or any other source of prestation
involving a local government unit shall be governed by the original terms and
conditions of the said contracts or the law in force at the time such rights were vested.
ACCORDINGLY, the petition is GRANTED and the decision of the respondent Regional Trial
Court dated December 17, 1990 which granted the writ of preliminary injunction enjoining
petitioner as PNP Superintendent, Metropolitan Traffic Command from enforcing the demolition
of market stalls along J. Gabriel, G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena streets
is hereby RESERVED and SET ASIDE. SO ORDERED.

G.R. No. 71169 December 22, 1988

JOSE D. SANGALANG and LUTGARDA D. SANGALANG, petitioners, FELIX C.
GASTON and DOLORES R. GASTON, JOSE V. BRIONES and ALICIA R.
BRIONES, and BEL-AIR VILLAGE ASSOCIATION, INC., intervenors-petitioners,
vs.
INTERMEDIATE APPELLATE COURT, and AYALA CORPORATION, respondents.
SARMIENTO, J.:
Before the Court are five consolidated petitions, 1 docketed as G.R. Nos. 71169,
74376, 76394, 78182, and 82281 hereof, in the nature of appeals (by certiorari under
Rule 45 of the Rules of Court) from five decisions of the Court of Appeals, denying
specific performance and damages.
The proceedings were commenced at the first instance by Jose Sangalang, joined by
his wife Lutgarda Sangalang, both residents of No. 110 Jupiter Street, Makati, Metro
Manila (G.R. No. 71169) to enforce by specific performance restrictive easement
upon property, specifically the Bel- Air Village subdivision in Makati, Metro Manila,
pursuant to stipulations embodied in the deeds of sale covering the subdivision, and
for damages. Later, the Sangalangs were joined by Felix Gaston, a resident of No. 64
Jupiter Street of the same municipality, and by Mr. and Mrs. Jose and Alicia Briones,
both of No. 66 Jupiter Street. Pending further proceedings, the Bel-Air Village
Association, Inc. (BAVA), an incorporated homeowners' association, entered its
appearance as plaintiff-in-intervention.
BAVA itself had brought its own complaints, four in number, likewise for specific
performance and damages to enforce the same 'deed restrictions.' (See G.R. Nos.
74376, 76394, 78182, and 82281.)
ANTECEDENTS FACTS
I. G.R. No. 71169
The facts are stated in the decision appealed from. We quote:

(2) Bel-Air Village was owned and developed into a residential

subdivision in the 1950s by Makati Development Corporation
(hereinafter referred to as MDC), which in 1968 was merged with
appellant Ayala Corporation.
(3) Appellees-spouses Sangalang reside at No. 11O Jupiter Street
between Makati Avenue and Reposo Street; appellees-spouses
Gaston reside at No. 64 Jupiter Street between Makati Avenue and
Zodiac Street; appellees-spouses Briones reside at No. 66 Jupiter
Street also between Makati Avenue and Zodiac Street; while
appellee Bel-Air Village Association, Inc. (hereinafter referred to as
BAVA) is the homeowners' association in Bel-Air Village which
takes care of the sanitation, security, traffic regulations and general
welfare of the village.
(4) The lots which were acquired by appellees Sangalang and
spouse Gaston and spouse and Briones and spouse in 1960, 1957
and 1958, respectively, were all sold by MDC subject to certain
conditions and easements contained in Deed Restrictions which
formed a part of each deed of sale. The pertinent provisions in said
Deed Restrictions, which are common to all lot owners in Bel-Air
Village, are as follows:
I-BEL-AIR ASSOCIATION
The owner of this lot/s or his successors in interest is required to be
and is automatically a member of the Bel-Air Association and must
abide by such rules and regulations laid down by the Association in
the interest of the sanitation, security and the general welfare of the
community.
The association will also provide for and collect assessments,
which will constitute as a lien on the property junior only to liens of
the government for taxes and to voluntary mortgages for sufficient
consideration entered into in good faith.
II-USE OF LOTS

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(1) Bel-Air Village is located north of Buendia Avenue extension
(now Sen. Gil J. Puyat Ave.) across a stretch of commercial block
from Reposo Street in the west up to Zodiac Street in the east,
When Bel-Air Village was planned, this block between Reposo and
Zodiac Streets adjoining Buendia Avenue in front of the village was
designated as a commercial block. (Copuyoc TSN, p. 10, Feb. 12,
1982).

Subject to such amendments and additional restrictions,

reservations, servitudes, etc., as the Bel- Air Association may from
time to time adopt and prescribe, this lot is subject to the following
restrictions:
a. This lot/s shall not be subdivided. However, three or more lots
may be consolidated and subdivided into a lesser number of lots
provided that none of the resulting lots be smaller in area than the

smallest lot before the consolidation and that the consolidation and
subdivision plan be duly approved by the governing body of the
Bel-Air Association.
b. This lot/s shall only be used for residential purposes.
c. Only one single family house may be constructed on a single lot,
although separate servants' quarters or garage may be built.
d. Commercial or advertising signs shall not be placed, constructed,
or erected on this lot. Name plates and professional signs of
homeowners are permitted so long as they do not exceed 80 x 40
centimeters in size.
e. No cattle, pigs, sheep, goats, ducks, geese, roosters or rabbits
shall be maintained in the lot, except that pets may be maintained
but must be controlled in accordance with the rulings of the
Association. The term "pets' includes chickens not in commercial
quantities.
f. The property is subject to an easement of two (2) meters within
the lot and adjacent to the rear and sides thereof not fronting a
street for the purpose of drainage, sewage, water and other public
facilities as may be necessary and desirable; and the owner, lessee
or his representative shall permit access thereto by authorized
representatives of the Bel-Air Association or public utility entities for
the purposes for which the easement is created.
g. This lot shall not be used for any immoral or illegal trade or
activity.
h. The owner and/or lessee of this lot/s shall at all times keep the
grass cut and trimmed to reduce the fire hazard of the property.

VII--ENFORCEMENT OF RESTRICTIONS
The foregoing restrictions may be enjoined and/or enforced by
court action by the Bel-Air Association, or by the Makati
Development Corporation or its assigns, or by any registered owner
of land within the boundaries of the Bel-Air Subdivision (Subdivision plan PSD-49226 and Lot 7-B, Psd-47848) or by any
member in good standing of the Bel-Air association." (Exh. 1 -b;
Exh. 22, Annex "B"). (Appellant's Brief, pp. 4- 6)
(5) When MDC sold the above-mentioned lots to appellees'
predecessors-in-interest, the whole stretch of the commercial block
between Buendia Avenue and Jupiter Street, from Reposo Street in
the west to Zodiac Street in the east, was still undeveloped.
Access, therefore, to Bel-Air Village was opened to all kinds of
people and even animals. So in 1966, although it was not part of
the original plan, MDC constructed a fence or wall on the
commercial block along Jupiter Street. In 1970, the fence or wall
was partly destroyed by typhoon "Yoling." The destroyed portions
were subsequently rebuilt by the appellant. (Copuyoc TSN, pp. 3134, Feb. 12, 1982). When Jupiter Street was widened in 1972 by
3.5 meters, the fence or wall had to be destroyed. Upon request of
BAVA, the wall was rebuilt inside the boundary of the commercial
block. (Copuyoc TSN, pp. 4447, Feb. 12,1982).
(6) When the appellant finally decided to subdivide and sell the lots
in the commercial block between Buendia and Jupiter, BAVA wrote
the appellant on May 9, 1972, requesting for confirmation on the
use of the commercial lots. The appellant replied on May 16, 1972,
informing BAVA of the restrictions intended to be imposed in the
sale and use of the lots. Among these restrictions are: that the
building shall have a set back of 19 meters; and that with respect to
vehicular traffic along Buendia Avenue, entrance only will be
allowed, and along Jupiter Street and side streets, both entrance
and exit will be allowed.

xxx xxx xxx

VI-TERM OF RESTRICTIONS
The foregoing restrictions shall remain in force for fifty years from
January 15, 1957, unless sooner cancelled in its entirety by two
thirds vote of members in good standing of the Bel-Air Association.
However, the Association may, from time to time, add new ones,
amend or abolish particular restrictions or parts thereof by majority
rule.

(7) On June 30, 1972, appellant informed BAVA that in a few

months it shall subdivide and sell the commercial lots bordering the
north side of Buendia Avenue Extension from Reposo Street up to
Zodiac Street. Appellant also informed BAVA that it had taken all
precautions and will impose upon the commercial lot owners deed
restrictions which will harmonize and blend with the development
and welfare of Bel-Air Village. Appellant further applied for special
membership in BAVA of the commercial lot owners. A copy of the
deed restrictions for the commercial lots was also enclosed. The
proposed deed restrictions shall include the 19 meter set back of
buildings from Jupiter Street, the requirement for parking space

within the lot of one (1) parking slot for every seventy five (75)
meters of office space in the building and the limitation of vehicular
traffic along Buendia to entrance only, but allowing both vehicular
entrance and vehicular exit through Jupiter Street and any side
street.
In its letter of July 10, 1972, BAVA acknowledged the above letter of
appellant and informed the latter that the application for special
membership of the commercial lot owners in BAVA would be
submitted to BAVA's board of governors for decision.
(8) On September 25, 1972, appellant notified BAVA that, after a
careful study, it was finally decided that the height limitation of
buildings on the commercial lots shall be increased from 12.5
meters to 15 meters. Appellant further informed BAVA that Jupiter
Street shall be widened by 3.5 meters to improve traffic flow in said
street. BAVA did not reply to said letter, but on January 22, 1973,
BAVA wrote a letter to the appellant informing the latter that the
Association had assessed the appellant, as special member of the
association, the amount of P40,795.00 (based on 81,590 square
meters at P.50 per square meter) representing the membership
dues to the commercial lot owners for the year 1973, and requested
the appellant to remit the amount which its board of governors had
already included in its current budget. In reply, appellant on January
31, 1973 informed BAVA that due to the widening of Jupiter Street,
the area of the lots which were accepted by the Association as
members was reduced to 76,726 square meters. Thus, the
corresponding dues at P.50 per square meter should be reduced to
P38,363.00. This amount, therefore, was remitted by the appellant
to BAVA. Since then, the latter has been collecting membership
dues from the owners of the commercial lots as special members of
the Association. As a matter of fact, the dues were increased
several times. In 1980, the commercial lot owners were already
being charged dues at the rate of P3.00 per square meter.
(Domingo, TSN, p. 36, March 19, 1980). At this rate, the total
membership dues of the commercial lot owners amount to
P230,178. 00 annually based on the total area of 76,726 square
meters of the commercial lots.

F. Bel-Air Village area, as bounded on the N by Polaris and

Mercedes streets and on the NE by Estrella Street; on the SE by
Epifanio de los Santos Avenue and on the SW by the center line of
Jupiter Street. Then bounded on the N by the abandoned MRR
Pasig Line; on the E by Makati Avenue; on the S by the center line
of Jupiter Street and on the W by the center line of Reposo Street."
(Exh. 18-A)
Similarly, the Buendia Avenue Extension area was classified as
Administrative Office Zone with its boundary in the North-North
East Extending also up to the center line of Jupiter Street (Exh.
18b).
Thus, Chapter III, Article I, Section 3.05, par. C. of the Ordinance provides:
C. The Buendia Avenue Extension areas, as bounded on the N-NE
by the center line of Jupiter Street, on the SE by Epifanio de los
Santos Avenue; on the SW by Buendia Avenue and on the NW by
the center line of Reposo Street, then on the NE by Malugay Street;
on the SE by Buendia Avenue and on the W by Ayala Avenue
Extension." (Exh. 18-B)
The Residential Zone and the Administrative Office Zone, therefore,
have a common boundary along the center line of Jupiter Street.
The above zoning under Ordinance No. 81 of Makati was later
followed under the Comprehensive Zoning Ordinance for the
National Capital Region adopted by the Metro Manila Commission
as Ordinance 81 -01 on March 14, 1981 (Exh. 19). However, under
this ordinance, Bel-Air Village is simply bounded in the SouthSoutheast by Jupiter Street-not anymore up to the center line of
Jupiter Street (Exh. B). Likewise, the blockdeep strip along the
northwest side of Buendia Avenue Extension from Reposo to EDSA
was classified as a High Intensity Commercial Zone (Exh. 19-c).
Thus, the Zoning District Boundaries -Makati, in Annex B of the Ordinance provides:
R-I-Low Intensity Residential

(9) Meantime, on April 4, 1975, the municipal council of Makati

enacted its ordinance No. 81, providing for the zonification of
Makati (Exh. 18). Under this Ordinance, Bel-Air Village was
classified as a Class A Residential Zone, with its boundary in the
south extending to the center line of Jupiter Street (Exh. 18-A).
Thus, Chapter III, Article 1, Section 3.03, par. F. of the Ordinance
provides:

xxxxxxxxx
4. Bel-Air 1, 3, 4
Bounded on the North -- J.P. Rizal and Amapola St.

South - Rockwell

Amapola Street -junction of Palma Street gate going to J. Villena

Street

Northwest - P. Burgos
Southeast - Jupiter

Mercedes Street -- from EDSA to Imelda Avenue and Amapola

junction

Southwest - Epifanio de los Santos Ave. (EDSA)

Zodiac Street - from Mercedes Street to Buendia Avenue

5. Bel-Air 2

Jupiter Street -- from Zodiac Street to Reposo Street connecting

Metropolitan Avenue to Pasong Tamo and V. Cruz Extension
intersection

Bounded on the Northwest - J.P. Rizal

Southwest - Makati Avenue
South --- Jupiter
Southeast -- Pasig Line
East - South Avenue" (Exh. 19-b)
xxxxxxxxx

Neptune Street - from Makati Avenue to Reposo Street Orbit Street

- from F. Zobel-Candelaria intersection to Jupiter Street
Paseo de Roxas - from Mercedes Street to Buendia Avenue (Exh.
17, Annex A, BAVA Petition)
On February 10, 1977, BAVA wrote the Mayor of Makati, expressing
the concern of the residents about the opening of the streets to the
general public, and requesting specifically the indefinite
postponement of the plan to open Jupiter Street to public vehicles.
(Exh. 17, Annex B, BAVA Petition).

C-3-High Intensity Commercial Zone

2. A block deep strip along the northwest side of Buendia Ave. Ext.
from Reposo to EDSA." (Exh, 19-c)
Under the above zoning classifications, Jupiter Street, therefore, is
a common boundary of Bel-Air Village and the commercial zone.
(10) Meanwhile, in 1972, BAVA had installed gates at strategic
locations across Jupiter Street which were manned and operated
by its own security guards who were employed to maintain,
supervise and enforce traffic regulations in the roads and streets of
the village. (Villavicencio, TSN, pp, 22-25, Oct. 30, 1980; BAVA
Petition, par. 11, Exh. 17).
Then, on January 17, 1977, the Office of the Mayor of Makati wrote
BAVA directing that, in the interest of public welfare and for the
purpose of easing traffic congestion, the following streets in Bel-Air
Village should be opened for public use:
Amapola Street - from Estrella Street to Mercedes Street

However, BAVA voluntarily opened to the public Amapola,

Mercedes, Zodiac, Neptune and Paseo de Roxas streets. (Exh. 17A, Answer of Makati par. 3-7).
Later, on June 17,1977, the Barangay Captain of Bel-Air Village
was advised by the Office of the Mayor that, in accordance with the
agreement entered into during the meeting on January 28, 1 977,
the Municipal Engineer and the Station Commander of the Makati
Police were ordered to open for public use Jupiter Street from
Makati Avenue to Reposo Street. Accordingly, he was requested to
advise the village residents of the necessity of the opening of the
street in the interest of public welfare. (Exh. 17, Annex E, BAVA
Petition).
Then, on June 10, 1977, the Municipal Engineer of Makati in a
letter addressed to BAVA advised the latter to open for vehicular
and pedestrian traffic the entire portion of Jupiter Street from Makati
Avenue to Reposo Street (Exh. 17, BAVA Petition, par. 14).
Finally, on August 12, 1977, the municipal officials of Makati
concerned allegedly opened, destroyed and removed the gates

constructed/located at the corner of Reposo Street and Jupiter

Street as well as the gates/fences located/constructed at Jupiter
Street and Makati Avenue forcibly, and then opened the entire
length of Jupiter Street to public traffic. (Exh. 17, BAVA Petition,
pars. 16 and 17).
(11) Before the gates were-removed, there was no parking problem
or traffic problem in Jupiter Street, because Jupiter Street was not
allowed to be used by the general public (Villavicencio, TSN, pp.
24-25, Oct. 30, 1980). However, with the opening of Zodiac Street
from Estrella Street to Jupiter Street and also the opening to the
public of the entire length of Jupiter Street, there was a tremendous
increase in the volume of traffic passing along Jupiter Street
coming from EDSA to Estrella Street, then to Zodiac Street to
Jupiter Street, and along the entire length of Jupiter Street to its
other end at Reposo Street. (Villavicencio, TSN, pp. 30-32, Oct. 30,
1980).
In the meantime, the purchasers of the commercial lots between
Jupiter Street and Buendia Avenue extension had started
constructing their respective buildings in 1974-1975. They
demolished the portions of the fence or wall standing within the
boundary of their lots. Many of the owners constructed their own
fences or walls in lieu of the wall and they employed their own
security guards. (TSN, p. 83, Feb. 20,1981; TSN, pp. 53-54; 72-74,
March 20,1981; TSN, pp. 54-55, July 23, 1981).
(12) Then, on January 27, 1978, appellant donated the entire
Jupiter Street from Metropolitan Avenue to Zodiac Street to BAVA
(Exh. 7)- However, even before 1978, the Makati Police and the
security force of BAVA were already the ones regulating the traffic
along Jupiter Street after the gates were opened in 1977.
Sancianco TSN, pp. 26-30, Oct. 2,1981).
In October, 1979, the fence at the corner of Orbit and Neptune
Streets was opened and removed (BAVA Petition, par. 22, Exh. 17).
The opening of the whole stretch of Orbit Street from J.P. Rizal
Avenue up to Imelda Avenue and later to Jupiter Street was agreed
to at the conference attended by the President of BAVA in the office
of the Station Commander of Makati, subject to certain conditions,
to wit:
That, maintenance of Orbit St. up to Jupiter St. shall be shouldered
by the Municipality of Makati.

That, street lights will be installed and maintenance of the same

along Orbit St. from J.P. Rizal Ave. up to Jupiter St. shall be
undertaken by the Municipality.
That for the security of the residents of San Miguel Village and BelAir Village, as a result of the opening of Orbit Street, police
outposts shall be constructed by the Municipality of Makati to be
headed by personnel of Station No. 4, in close coordination with the
Security Guards of San Miguel Village and Bel-Air Village." (CF.
Exh. 3 to Counter-Affidavit, of Station Commander, Ruperto Acle p.
253, records)" (Order, Civil Case No. 34948, Exh. 17-c).
(13) Thus, with the opening of the entire length of Jupiter Street to
public traffic, the different residential lots located in the northern
side of Jupiter Street ceased to be used for purely residential
purposes. They became, for all purposes, commercial in character.
(14) Subsequently, on October 29, 1979, the plaintiffs-appellees
Jose D. Sangalang and Lutgarda D. Sangalang brought the present
action for damages against the defendant-appellant Ayala
Corporation predicated on both breach of contract and on tort or
quasi-delict A supplemental complaint was later filed by said
appellees seeking to augment the reliefs prayed for in the original
complaint because of alleged supervening events which occurred
during the trial of the case. Claiming to be similarly situated as the
plaintiffs-appellees, the spouses Felix C. Gaston and Dolores R.
Gaston, Jose V. Briones and Alicia R. Briones, and the
homeowners' association (BAVA) intervened in the case.
(15) After trial on the merits, the then Court of First Instance of
Rizal, Pasig, Metro Manila, rendered a decision in favor of the
appellees the dispositive portion of which is as follows:
WHEREFORE, judgment is hereby accordingly rendered as
follows:
ON PLAINTIFFS' COMPLAINT:
Defendant is ordered to pay to the plaintiffs-spouses Sangalang the
following damages:
1. The sum of P500,000.00 as actual and consequential damages;
2. The sum of P2,000,000.00 as moral damages;

3. The sum of P500,000.00 as exemplary damages;

2. The sum of P500,000.00 as exemplary damages;

4. The sum of P100,000.00 as attorney's fees; and

3. The sum of P50,000.00 as attorney's fees; and

5. The costs of suit.

4. The costs of suit.

ON INTERVENORS
COMPLAINT:

FELIX

and

DOLORES

GASTON'S

The above damages awarded to the plaintiffs and intervenors shall

bear legal interest from the filing of the complaint.

Defendant is ordered to pay to the spouses Felix and Dolores

Gaston, the following damages:
1 . The sum of P400,000.00 as consequential damages;

Defendant is further ordered to restore/reconstruct the perimeter

wall at its original position in 1966 from Reposo Street in the west
to Zodiac Street in the east, at its own expense, within SIX (6)
MONTHS from finality of judgment.

2 The sum of P500,000.00 as moral damages;

SO ORDERED.

3 The sum of P500,000.00 as exemplary damages:

(Record on Appeal, pp. 400-401) 2

4 The sum of P50,000.00 as attorney's fees; and

xxxxxxxxx

5 The costs of suit.

On appeal, the Court of Appeals 3 rendered a reversal, and

disposed as follows:

ON INTERVENORS JOSE and ALICIA BRIONES' COMPLAINT:

Defendant is ordered to pay to the spouses Jose and Alicia
Briones, the following damages:
1 . The sum of P400,000.00 as consequential damages;
2 The sum of P500,000.00 as moral damages;
3 The sum of P500,000.00 as exemplary damages;
4 The sum of P50,000.00 as attorney's fees; and
5 The costs of suit.
ON INTERVENOR BAVA'S COMPLAINT:
Defendant is ordered to pay intervenor BAVA, the following
damages:
1. The sum of P400,000.00 as consequential damages;

ACCORDINGLY, finding the decision appealed from as not

supported by the facts and the law on the matter, the same is
hereby SET ASIDE and another one entered dismissing the case
for lack of a cause of action. Without pronouncement as to costs.
SO ORDERED. 4
II. G.R. No. 74376
This petition was similarly brought by BAVA to enforce the aforesaid restrictions
stipulated in the deeds of sale executed by the Ayala Corporation. The petitioner
originally brought the complaint in the Regional Trial Court of Makati, 5 principally for
specific performance, plaintiff [now, petitioner] alleging that the defendant [now,
private respondent] Tenorio allowed defendant [Tenorio's co-private respondent]
Gonzalves to occupy and convert the house at 50 Jupiter Street, Bel-Air Village,
Makati, Metro Manila, into a restaurant, without its knowledge and consent, and in
violation of the deed restrictions which provide that the lot and building thereon must
be used only for residential purposes upon which the prayed for main relief was for
'the defendants to permanently refrain from using the premises as commercial and to
comply with the terms of the Deed Restrictions." 6 The trial court dismissed the
complaint on a procedural ground, i.e., pendency of an Identical action, Civil Case
No. 32346, entitled "Bel-Air Village Association, Inc. v. Jesus Tenorio." The Court of

Appeals 7affirmed, and held, in addition, that Jupiter Street "is classified as High
density commercial (C-3) zone as per Comprehensive Zoning Ordinance No. 81-01
for National Capital Region," 8 following its own ruling in AC-G.R. No. 66649, entitled
"Bel-Air Village Association, Inc. vs. Hy-Land Realty & Development Corporation, et
al."
III. G.R. No. 76394
xxxxxxxxx
Defendants-spouses Eduardo V. Romualdez, Jr. and Buena
Tioseco are the owners of a house and lot located at 108 Jupiter
St., Makati, Metro Manila as evidenced by Transfer Certificate of
Title No. 332394 of the Registry of Deeds of Rizal. The fact is
undisputed that at the time the defendants acquired the subject
house and lot, several restrictions were already annotated on the
reverse side of their title; however, for purposes of this appeal we
shall quote hereunder only the pertinent ones, to wit:
(b,) This lot/shall be used only for residential purposes.
xxxxxxxxx

using the premises in question for commercial purposes, they will

be sued for violations of the deed restrictions.
Despite the warning, the defendants
construction of their bake shop. 9

During the early part of 1979, plaintiff noted that certain renovations
and constructions were being made by the defendants on the
subject premises, for which reason the defendants were advised to
inform the plaintiff of the kind of construction that was going on.
Because the defendants failed to comply with the request of the
plaintiff, the latter's chief security officer visited the subject premises
on March 23, 1979 and found out that the defendants were putting
up a bake and coffee shop, which fact was confirmed by defendant
Mrs. Romualdez herself. Thereafter, the plaintiff reminded
defendants that they were violating the deed restriction. Despite
said reminder, the defendants proceeded with the construction of
the bake shop. Consequently, plaintiff sent defendants a letter
dated April 30, 1979 warning them that if they will not desist from

with

the

xxxxxxxxx
The trial court 10 adjudged in favor of BAVA. On appeal, the Court of
Appeals 11 reversed, on the strength of its holding in AC-G.R. No. 66649 earlier
referred to.
BAVA then elevated the matter to the Court by a petition for review on certiorari. The
Court 12 initially denied the petition "for lack of merit, it appearing that the conclusions
of the respondent Court of Appeals that private respondents' bake and coffee shop
lies within a commercial zone and that said private respondents are released from
their obligations to maintain the lot known as 108 Jupiter Street for residential
purposes by virtue of Ordinance No. 81 of the Municipality of Makati and
Comprehensive Zoning Ordinance No. 81-01 of the Metropolitan Manila Commission,
are in accord with law and jurisprudence," 13 for which BAVA sought a reconsideration.
Pending resolution, the case was referred to the Second Division of this Court, 14 and
thereafter, to the Court En Banc en consulta. 15 Per our Resolution, dated April 29,
1988, we consolidated this case with G.R. Nos. 74376 and 82281. 16

IV. Term of Restriction

The foregoing restriction(s) shall remain in force for fifty years from
January 15, 1957, unless sooner cancelled in its entirety by twothirds vote of the members in good standing of the Bel-Air
Association. However, the Association may from time to time, add
new ones, amend or abolish particular restrictions or parts thereof
by majority rule.

proceeded

IV. G.R. No. 78182.

xxxxxxxxx
The case stemmed from the leasing by defendant Dolores Filley of
her building and lot situated at No. 205 Reposo Street, Bel-Air
Village Makati, Metro Manila to her co-defendant, the advertising
firm J. Romero and Associates, in alleged violation of deed
restrictions which stipulated that Filley's lot could only be used for
residential purposes. Plaintiff sought judgment from the lower court
ordering the defendants to "permanently refrain" from using the
premises in question "as commercial" and to comply with the terms
of the deed restrictions.
After the proper proceedings, the court granted the plaintiff the
sought for relief with the additional imposition of exemplary
damages of P50,000.00 and attorney's fees of P10,000.00. The trial
court gave emphasis to the restrictive clauses contained in Filley's
deed of sale from the plaintiff, which made the conversion of the
building into a commercial one a violation.
Defendants now seek review and reversal on three (3) assignments of errors, namely:

I.
THE TRIAL COURT ERRED IN NOT FINDING THAT THE
REGULATIONS
PROMULGATED
BY
THE
MUNICIPAL
AUTHORITIES IN MAKATI AND THE MINISTRY OF HUMAN
SETTLEMENT'S CHANGING THE CHARACTER OF THE AREAS
IN QUESTION HAD RENDERED THE RESTRICTIVE EASEMENT
ON THE TITLE OF THE APPELLANTS VACATED.
II.
THE COURT ERRED IN NOT RULING THAT BECAUSE THE
APPELLEE(S) HAD ALLOWED THE USE OF THE PROPERTY
WITHIN THE VILLAGE FOR NON- RESIDENTIAL PURPOSES, IT
IS NOW ESTOPPED FROM ENFORCING THE RESTRICTIVE
PROHIBITIONS SUBJECT MATTER OF THIS CASE.
III.
THE COURT ERRED IN NOT FINDING THAT THERE EXISTED A
BILATERAL CONTRACT BETWEEN THE PARTIES AND THAT
SINCE APPELLEE HAD NOT PERFORMED ITS OBLIGATIONS
UNDER THIS ARRANGEMENT THE APPELLANT IN TURN WAS
UNDER NO OBLIGATION TO ANNOTATE THE RESTRICTIVE
PROHIBITIONS ON THE BACK OF THE TITLE.
Appellants anchor their appeal on the proposition that the Bel-Air
Village area, contrary to plaintiff- appellee's pretension of being a
strictly residential zone, is in fact commercial and characterize the
restrictions contained in appellant Filley's deed of sale from the
appellee as completely outmoded, which have lost all relevance to
the present-day realities in Makati, now the premier business hub of
the nation, where there is a proliferation of numerous commercial
enterprises established through the years, in fact even within the
heart of so-called "residential" villages. Thus, it may be said that
appellants base their position on the inexorable march of progress
which has rendered at naught the continued efficacy of the
restrictions. Appellant on the other hand, relies on a rigid
interpretation of the contractual stipulations agreed upon with
appellant Filley, in effect arguing that the restrictions are valid ad
infinitum.
The lower court quite properly found that other commercial
establishments exist in the same area (in fact, on the same street)
but ignored it just the same and said-

The fact that defendants were able to prove the existence of

several commercial establishments inside the village does not
exempt them from liability for violating some of the restrictions
evidently choosing to accord primacy to contractual stipulation. 17
xxxxxxxxx
The Court of Appeals 18 overturned the lower court, 19 likewise based on AC-G.R. No.
66649. The respondent Court observed also that J. Romero & Associates had been
given authority to open a commercial office by the Human Settlements Regulatory
Commission.
V. G.R. No. 82281
The facts of this case have been based on stipulation. We quote:
COMES NOW, the Parties, assisted by their respective counsel and
to this Honorable Court, respectfully enter into the following
stipulations of facts, to wit:
1. The parties admit the personal circumstances of each other as
well as their capacities to sue and be sued.
2. The parties admit that plaintiff BAVA for short) is the legally
constituted homeowners' association in Bel-Air Subdivision, Makati,
Metro Manila.
3. The parties admit that defendant Violets Moncal is the registered
owner of a parcel of land with a residential house constructed
thereon situated at No. 104 Jupiter Street, Bel-Air Village, Makati,
Metro Manila; that as such lot owner, she is a member of the
plaintiff association.
4. The parties admit that defendant Majal Development Corporation
(Majal for short) is the lessee of defendant Moncal's house and lot
located at No. 104 Jupiter Street.
5. The parties admit that a deed restrictions is annotated on the title
of defendant Moncal, which provides, among others, that the lot in
question must be used only for residential purposes;' that at time
Moncal purchased her aforesaid lot in 1959 said deed restrictions
was already annotated in the said title.

6. The parties admit that when Moncal leased her subject property
to Majal, she did not secure the consent of BAVA to lease the said
house and lot to the present lessee.

establishments (a restaurant in G.R. No. 74376, a bakery and coffee shop in G.R. No.
76394, an advertising firm in G.R. No. 78182; and a construction company,
apparently, in G.R. No. 82281) in violation of the said restrictions. 24

7. The parties admit that along Jupiter Street and on the same side
where Moncal's property is located, there are restaurants, clinics
placement or employment agencies and other commercial or
business establishments. These establishments, however, were
sued by BAVA in the proper court.

Their mother case, G. R. No. 71169 is, on the other hand, a petition to hold the
vendor itself, Ayala Corporation (formerly Makati Development Corporation), liable for
tearing down the perimeter wall along Jupiter Street that had therefore closed its
commercial section from the residences of Bel-Air Village and ushering in, as a
consequence, the full "commercialization" of Jupiter Street, in violation of the very
restrictions it had authored.

8. The parties admit that at the time Moncal purchased the subject
property from the Makati Development Corporation, there was a
perimeter wall, running along Jupiter Street, which wall was
constructed by the subdivision owner; that at that time the gates of
the entrances to Jupiter Street were closed to public traffic. In short,
the entire length of Jupiter which was inside the perimeter wall was
not then open to public traffic
9. The parties admit that subsequent thereto, Ayala tore down the
perimeter wall to give way to the commercial building fronting
Buendia Avenue (now Gil J. Puyat Avenue).
10. The parties admit that on August 12, 1977, the Mayor of Makati
forcibly opened and removed the street gates constructed on
Jupiter Street and Reposo Street, thereby opening said streets to
the public.
11. The parties admit plaintiffs letters of October 10, 23 and 31,
1984; as well as defendants' letters-reply dated October 17 and 29,
1984. 20
xxxxxxxxx
The trial court 21 dismissed the petitioner's complaint, a dismissal affirmed on
appeal, 22 According to the appellate court, the opening of Jupiter Street to human
and vehicular traffic, and the commercialization of the Municipality of Makati in
general, were circumstances that had made compliance by Moncal with the aforesaid
"deed restrictions" "extremely difficult and unreasonable," 23 a development that had
excused compliance altogether under Article 1267 of the Civil Code.
VI. The cases before the Court; the Court's decision.
In brief, G.R. Nos. 74376, 76394, 78182, and 82281 are efforts to enforce the "deed
restrictions" in question against specific residents (private respondents in the
petitions) of Jupiter Street and with respect to G.R. No. 78182, Reposo Street. The
private respondents are alleged to have converted their residences into commercial

As We indicated, the Court of Appeals dismissed all five appeals on the basis
primarily of its ruling in AC-G.R. No. 66649, "Bel-Air Village, Inc. v. Hy-Land Realty
Development Corporation, et al.," in which the appellate court explicitly rejected
claims under the same 'deed restrictions" as a result of Ordinance No. 81 enacted by
the Government of the Municipality of Makati, as well as Comprehensive Zoning
Ordinance No. 8101 promulgated by the Metropolitan Manila Commission, which two
ordinances allegedly allowed the use of Jupiter Street both for residential and
commercial purposes. It was likewise held that these twin measures were valid as a
legitimate exercise of police power.
The Court of Appeals' reliance on Ordinance Nos. 81. and 8101 is now assailed in
these petitions, particularly the Sangalang, et al. petition.
Aside from this fundamental issue, the petitioners likewise raise procedural questions.
G.R. No. 71169, the mother case, begins with one.
1. G.R. No. 71169
In this petition, the following questions are specifically put to the Court:
May the Honorable Intermediate Appellate Court reverse the
decision of the trial court on issues which were neither raised by
AYALA in its Answers either to the Complaint or Supplemental
Complaint nor specifically assigned as one of the alleged errors on
appeal? 25
May the Honorable Intermediate Appellate Court arbitrarily ignore
the decisive findings of fact of the trial court, even if uncontradicted
and/or documented, and premised mainly on its own unsupported
conclusions totally reverse the trial court's decision? 26
May the Honorable Intermediate Appellate Court disregard the trial
court's documented findings that respondent Ayala for its own selfinterest and commercial purposes contrived in bad faith to do away
with the Jupiter Street perimeter wall it put up three times which

wall was really intended to separate the residential from the

commercial areas and thereby insure the privacy and security of
Bel Air Village pursuant to respondent Ayala's express continuing
representation and/or covenant to do so?27
a.
The first question represents an attack on the appellate court's reliance on
Ordinances Nos. 81 and 81-01, a matter not supposedly taken up at the trial or
assigned as an error on appeal. As a rule, the Court of Appeals (then the Intermediate
Appellate Court) may determine only such questions as have been properly raised to
it, yet, this is not an inflexible rule of procedure. In Hernandez v. Andal, 28 it was stated
that "an unassigned error closely related to an error properly assigned, or upon which
the determination of the question raised by the error properly assigned is dependent,
will be considered by the appellate court notwithstanding the failure to assign it as
error." 29
In Baquiran v. Court of Appeals, 30 we referred to the " modern trend of procedure . . .
according] the courts broad discretionary power" 31 and in which we allowed
consideration of matters "having some bearing on the issue submitted which the
parties failed to raise or the lower court ignore[d]. 32 And in Vda. de Javellana v. Court
of Appeals, 33 we permitted the consideration of a 'patent error' of the trial court by the
Court of Appeals under Section 7, of Rule 51, of the Rules of Court, 34 although such
an error had not been raised in the brief. But what we note is the fact that the Ayala
Corporation did raise the zoning measures as affirmative defenses, first in its
answers 35 and second, in its brief, 36 and submitted at the trial as exhibits. 37 There is
accordingly no cause for complaint on the part of the petitioners for Ayala's violation
of the Rules. But while there was reason for the consideration, on appeal, of the said
zoning ordinances in question, this Court nevertheless finds as inaccurate the Court
of Appeals' holding that such measures, had "in effect, [made] Jupiter Street ... a
street which could be used not only for residential purposes," 38 and that "[It lost its
character as a street for the exclusive benefit of those residing in Bel-Air Village
completely." 39
Among other things, there is a recognition under both Ordinances Nos. 81 and 8 1-01
that Jupiter Street lies as the boundary between Bel-Air Village and Ayala
Corporation's commercial section. And since 1957, it had been considered as a
boundary not as a part of either the residential or commercial zones of Ayala
Corporation's real estate development projects. Thus, the Bel-Air Village Association's
articles of incorporation state that Bel-Air Village is 'bounded on the NE., from
Amapola St., to de los Santos Ave., by Estrella St., on the SE from Extrella St., to
Pedestrian Lane by E. De los Santos Ave., on the SW., from Pedestrian Lane to
Reposo St., by Jupiter Street
. . . . 40 Hence, it cannot be said to have been "for the exclusive benefit" of Bel-Air
Village residents.

We come to the perimeter wall then standing on the commercial side of Jupiter Street
the destruction of which opened the street to the public. The petitioners contend that
the opening of the thoroughfare had opened, in turn, the floodgates to the
commercialization of Bel-Air Village. The wall, so they allege, was designed precisely
to protect the peace and privacy of Bel-Air Village residents from the din and uproar
of mercantile pursuits, and that the Ayala Corporation had committed itself to maintain
it. It was the opinion of the Court of Appeals, as we said, that Ayala's liability therefor,
if one existed, had been overtaken by the passage of Ordinances Nos. 81 and 82-01,
opening Jupiter Street to commerce.
It is our ruling, we reiterate, that Jupiter Street lies as a mere boundary, a fact
acknowledged by the authorities of Makati and the National Government and, as a
scrutiny of the records themselves reveals, by the petitioners themselves, as the
articles of incorporation of Bel-Air Village Association itself would confirm. As a
consequence, Jupiter Street was intended for the use by both -the commercial and
residential blocks. It was not originally constructed, therefore, for the exclusive use of
either block, least of all the residents of Bel-Air Village, but, we repeat, in favor of
both, as distinguished from the general public.
When the wall was erected in 1966 and rebuilt twice, in 1970 and 1972, it was not for
the purpose of physically separating the two blocks. According to Ayala Corporation, it
was put up to enable the Bel-Air Village Association "better control of the security in
the area, 41 and as the Ayala Corporation's "show of goodwill " 42 a view we find
acceptable in the premises. For it cannot be denied that at that time, the commercial
area was vacant, "open for [sic] animals and people to have access to Bel-Air
Village." 43 There was hence a necessity for a wall.
In any case, we find the petitioners' theory, that maintaining the wall was a matter of a
contractual obligation on the part of Ayala, to be pure conjecture. The records do not
establish the existence of such a purported commitment. For one, the subdivision
plans submitted did not mention anything about it. For another, there is nothing in the
"deed restrictions" that would point to any covenant regarding the construction of a
wall. There is no representation or promise whatsoever therein to that effect.
With the construction of the commercial buildings in 1974, the reason for which the
wall was built- to secure Bel-Air Village from interlopers had naturally ceased to exist.
The buildings themselves had provided formidable curtains of security for the
residents. It should be noted that the commercial lot buyers themselves were forced
to demolish parts of the wall to gain access to Jupiter Street, which they had after all
equal right to use.
In fine, we cannot hold the Ayala Corporation liable for damages for a commitment it
did not make, much less for alleged resort to machinations in evading it. The records,
on the contrary, will show that the Bel-Air Village Association had been informed, at
the very outset, about the impending use of Jupiter Street by commercial lot buyers.
We quote:

xxxxxxxxx
1. Exh. I of appellee, the memorandum of Mr. Carmelo Caluag, President of
BAVA, dated May 10, 1972, informing the BAVA Board of Governors and Barrio
Council members about the future use of Jupiter Street by the lot owners fronting
Buendia Avenue. The use of Jupiter Street by the owners of the commercial lots
would necessarily require the demolition of the wall along the commercial block
adjoining Jupiter Street.
2. Exh. J of appellee, the minutes of the joint meeting of BAVA Board of
Governors and the Bel-Air Barrio Council where the matter that "Buendia lot
owners will have equal rights to use Jupiter Street," and that Ayala's "plans about
the sale of lots and use of Jupiter Street" were precisely taken up. This confirms
that from the start BAVA was informed that the commercial lot owners will use
Jupiter Street and that necessarily the wall along Jupiter Street would be
demolished.
3. Exh. 10, the letter of Mr. Demetrio Copuyoc to the President of BAVA, dated
May 16, 1972, expressly stating that vehicular entrance and exit to the
commercial lots would be allowed along Jupiter and side streets.
4. Exhs. 27, 27-A, 27-B, the letter of Atty. Salvador J. Lorayes dated June 30,
1972, with enclosed copy of proposed restriction for the commercial lots to BAVA.
He proposed restriction again expressly stated that "Vehicular entrances and
exits are allowed thru Jupiter and any side streets."
5. Exh. L of appellee, the minutes of the meeting of the members of BAVA, dated
August 26, 1972, where it is stated "Recently, Ayala Corporation informed the
Board that the lots fronting Buendia Avenue will soon be offered for sale, and that
future lot owners will be given equal rights to use Jupiter Street as well as
members of the Association."
6. Exh. 25, the letter of Atty. Lorayes dated September 25, 1972, informing BAVA
of the widening of Jupiter Street by 3.5 meters to improve traffic flow in said
street to benefit both the residents of Bel-Air and the future owners of the
commercial lots. 44
The petitioners cannot successfully rely on the alleged promise by Demetrio
Copuyoc, Ayala's manager, to build a "[f]ence along Jupiter with gate for entrance
and/or exit 45 as evidence of Ayala's alleged continuing obligation to maintain a wall
between the residential and commercial sections. It should be observed that the
fence referred to included a "gate for entrance and or exit" which would have
defeated the purpose of a wall, in the sense the petitioners would put in one, that is to
say, an impenetrable barrier. But as Ayala would point out subsequently, the proposed
fence was not constructed because it had become unnecessary when the commercial
lot owners commenced constructions thereon.

Be that as it may, the Court cannot visualize any purported obligation by Ayala
Corporation to keep the wall on the strength of this supposed promise alone. If truly
Ayala promised anything assuming that Capuyoc was authorized to bind the
corporation with a promise it would have been with respect to the fence. It would not
have established the pre-existing obligation alleged with respect to the wall.
Obligations arise, among other things, from contract. 46 If Ayala, then, were bound by
an obligation, it would have been pursuant to a contract. A contract, however, is
characterized by a "meeting of minds between two persons . 47 As a consensual
relation, it must be shown to exist as a fact, clearly and convincingly. But it cannot be
inferred from a mishmash of circumstances alone disclosing some kind of an
"understanding," when especially, those disparate circumstances are not themselves
incompatible with contentions that no accord had existed or had been reached. 48
The petitioners cannot simply assume that the wall was there for the purpose with
which they now give it, by the bare coincidence that it had divided the residential
block from the commercial section of Bel-Air. The burden of proof rests with them to
show that it had indeed been built precisely for that objective, a proof that must satisfy
the requirements of our rules of evidence. It cannot be made to stand on the strength
of plain inferences.
b.
This likewise answers the petitioners' second query, whether or not the Court of
Appeals had "arbitrarily ignore(d) the decisive findings of the trial court." 49 i.e.,
findings pointing to alleged acts performed by the Ayala Corporation proving its
commitment to maintain the wall abovesaid. Specifically, the petitioners refer to,
among other things: (1) Ayala's alleged announcement to Bel- Air Village Association
members that "[the perimeter wall along Jupiter Street will not be demolished," 50 (2)
Ayala's alleged commitment "during the pendency of the case in the trial court" to
restore the wall; (3) alleged assurances by Copuyoc that the wall will not be removed;
(4) alleged contrivances by the corporation to make the association admit as
members the commercial lot buyers which provided them equal access to Jupiter
Street; and (5) Ayala's donation to the association of Jupiter Street for "private use" of
Bel-Air residents. 51
682 (1903), where it was held that "whether the plaintiffs services were solicited or
whether they were offered to the defendant for his assistance, inasmuch as these
services were accepted and made use of by the latter, we must consider that there
was a tacit and mutual consent as to the rendition of services." (At 686.) In that case,
the defendant had enormously benefitted from the services that entitled the plaintiff to
compensation on the theory that no one may unjustly enrich himself at the expense of
another (Solutio indebiti) The facts of this case differ.

As we stated, the Ayala Corporation's alleged conduct prior to or during the

proceedings below are not necessarily at war with claims that no commitment had
been in fact made.
With respect to Ayala's alleged announcement before the association, the Court does
not agree that Ayala had categorically assumed as an obligation to maintain the wall
"perpetually," i.e., until the year 2007 (the expiration date under the "deed
restrictions.") There is nothing in its statement that would bare any commitment. In
connection with the conference between the parties "during the pendency" of the trial,
it is to be noted that the Ayala Corporation denies having warranted the restoration of
the said wall therein. What, on the other hand, appears in the records is the fact that
Ayala did make that promise, but provided that the Mayor allowed it. It turned out,
however, that the Mayor balked at the Idea. 52 But assuming that Ayala did promise to
rebuild the wall (in that conference), it does not seem to us that it did consequently
promise to maintain it in perpetuity.

vehicular traffic along Buendia to entrance only, but allowing both vehicular
entrance and vehicular exit through Jupiter Street and any side street.
In its letter of July 10, 1972, BAVA acknowledged the above letter of appellant and
informed the latter that the application for special membership of the commercial lot
owners in BAVA would be submitted to BAVA's board of governors for decision.

The objective of making the commercial lot owners special members of the Bel-Air
Village Association was not to accord them equal access to Jupiter Street and
inferentially, to give them the right to knock down the perimeter wall. It was, rather, to
regulate the use of the street owing precisely to the "planned" nature of Ayala's
development project, and real estate development in general, and this could best be
done by placing the commercial lot owners under the association's jurisdiction.

(8) On September 25,1972, appellant notified BAVA that, after a careful study, it
was finally decided that the height limitation of buildings on the commercial lots
shall be increased from 12.5 meters to 15 meters. Appellant further informed
BAVA that Jupiter Street shall be widened by 3.5 meters to improve traffic flow in
said street. BAVA did not reply to said letter, but on January 22, 1973, BAVA
wrote a letter to the appellant informing the latter that the Association had
assessed the appellant, as special member of the association, the amount of
P40,795.00 (based on 81,590 square meters at P.50 per square meter)
representing the membership dues of the commercial lot owners for the year
1973, and requested the appellant to remit the amount which its board of
governors had already included in its current budget. In reply, appellant on
January 31, 1973 informed BAVA that due to the widening of Jupiter Street, the
area of the lots which were accepted by the Association as members was
reduced to 76,726 square meters. Thus, the corresponding due at P.50 per
square meter should be reduced to P38,363.00. This amount, therefore, was
remitted by the appellant to BAVA. Since then, the latter has been collecting
membership dues from the owners of the commercial lots as special members of
the Association. As a matter of fact, the dues were increased several times. In
1980, the commercial lot owners were already being charged dues at the rate of
P3.00 per square meter. (Domingo, TSN, p. 36, March 19, 1980). At this rate, the
total membership dues of the commercial lot owners amount to P230,178.00
annually based on the total area of 76,726 square meters of the commercial
lots. 54

Moreover, Ayala's overtures with the association concerning the membership of

commercial lot buyers therein have been shown to be neither perfidious nor unethical
nor devious (paraphrasing the lower court). We quote anew:

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

(7) On June 30, 1972, appellant informed BAVA that in a few months it shall
subdivide and sell the commercial lots bordering the north side of Buendia
Avenue Extension from Reposo Street up to Zodiac Street. Appellant also
informed BAVA that it had taken all precautions and will impose upon the
commercial lot owners deed restrictions which will harmonize and blend with the
development and welfare of Bel-Air Village. Appellant further applied for special
membership in BAVA of the commercial lot owners. A copy of the deed
restrictions for the commercial lots was also enclosed. The proposed deed
restrictions shall include the 19 meter set back of buildings from Jupiter Street,
the requirement for parking space within the lot of one (1) parking slot for every
seventy five (75) meters of office space in the building and the limitation of

IV. That the offer made by the DONOR had been accepted by the DONEE
subject to the condition that the property will be used as a street for the use of
the members of the DONEE, their families, personnel, guests, domestic help
and, under certain reasonable conditions and restrictions, by the general public,
and in the event that said lots or parts thereof cease to be used as such,
ownership thereof shall automatically revert to the DONOR. The DONEE shall
always have Reposo Street, Makati Avenue, and Paseo de Roxas open for the
use of the general public. It is also understood that the DONOR shall continue
the maintenance of the street at its expense for a period of three years from
date hereof." (Deed of Donation, p. 6, Exh. 7) 55

It is unfair to say, as the trial court did, that the Ayala had "contrived to make future
commercial lot owners special members of BAVA and thereby acquire equal right with
the regular members thereof to use Jupiter Street 53 since, as we stated, the
commercial lot buyers have the right, in any event, to make use of Jupiter Street,
whether or not they are members of the association. It is not their memberships that
give them the right to use it. They share that right with Bel-Air residents from the
outset.

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

The Court cannot then say, accepting the veracity of the petitioners' facts"
enumerated above, that the Ayala Corporation may be held liable for specific
performance of a demandable obligation, let alone damages.
The Court adds that Ayala can hardly be held responsible for the alleged deterioration
of "living and environmental conditions" 56 of the Bel-Air area, as a consequence of
"Ayala's authorized demolition of the Jupiter perimeter wall in 1974-1975. " 57 We
agree with Ayala that until 1976, "there was peace and quiet" at Jupiter Street, as the
petitioners' (Sangalang, Gaston, and Briones) complaints admit. Hence, the
degeneration of peace and order in Bel-Air cannot be ascribed to the destruction of
the wall in 1974 and 1975.
What Ayala submits as the real cause was the opening of Jupiter Street to vehicular
traffic in 1977., 58 But this was upon orders of the Mayor, and for which the
homeowners' association had precisely filed suit (Civil Case No. 34998) 59 to contest
the act of the Mayor.

zone, 64 pursuant to its Ordinance No. 81-01. Hence, the petitioners have no cause of
action on the strength alone of the said "deed restrictions.
In view thereof, we find no need in resolving the questions raised as to procedure,
since this disposition is sufficient to resolve these cases.
It is not that we are saying that restrictive easements, especially the easements
herein in question, are invalid or ineffective. As far as the Bel-Air subdivision itself is
concerned, certainly, they are valid and enforceable. But they are, like all contracts,
subject to the overriding demands, needs, and interests of the greater number as the
State may determine in the legitimate exercise of police power. Our jurisdiction
guarantees sanctity of contract and is said to be the "law between the contracting
parties, 65 but while it is so, it cannot contravene 'law, morals, good customs, public
order, or public policy. 66 Above all, it cannot be raised as a deterrent to police power,
designed precisely to promote health, safety, peace, and enhance the common good,
at the expense of contractual rights, whenever necessary. In Ortigas & Co., Limited
Partnership v. Feati Bank and Trust Co., 67 we are told:

c.
xxxxxxxxx
This likewise disposes of the third question presented. The petitioners' reliance on
Ayala's alleged conduct (proving its alleged commitment), so we have ruled, is not
well-taken. Ayala's alleged acts do not, by themselves, reflect a commitment to
maintain the wall in dispute. It cannot be therefore said that the Court of Appeals
"arbitrarily ignore(d]" 60 the lower court's findings. Precisely, it is the duty of the
appellate court to review the findings of the trial judge, be they of fact or law. 61 It is
not bound by the conclusions of the judge, for which reason it makes its own findings
and arrives at its own conclusions. Unless a grave abuse of discretion may be
imputed to it, it may accept or reject the lower tribunal's determinations and rely solely
on the records.
Accordingly, the Court affirms the Court of Appeals' holding that the Ayala
Corporation, in its dealings with the petitioners, the Bel-Air Village Association in
particular, had "acted with justice, gave the appellees [petitioners] their due and
observed honesty and good faith." 62 "Therefore, under both Articles 19 and 21 of the
Civil Code, the appellant [Ayala] cannot be held liable for damages." 63
2. G.R. Nos. 74376, 76394, 78182, & 82281
Our decision also resolves, quite anticlimactically, these companion cases. But we do
so for various other reasons. In the Sangalang case, we absolve the Ayala
Corporation primarily owing to our finding that it is not liable for the opening of Jupiter
Street to the general public. Insofar as these petitions are concerned, we likewise
exculpate the private respondents, not only because of the fact that Jupiter Street is
not covered by the restrictive easements based on the "deed restrictions" but chiefly
because the National Government itself, through the Metro Manila Commission
(MMC), had reclassified Jupiter Street into high density commercial (C-3)

2. With regard to the contention that said resolution cannot nullify the contractual
obligations assumed by the defendant-appellee referring to the restrictions
incorporated in the deeds of sale and later in the corresponding Transfer
Certificates of Title issued to defendant-appellee it should be stressed, that while
non-impairment of contracts is constitutionally guaranteed, the rule is not
absolute, since it has to be reconciled with the legitimate exercise of police
power, i.e., "the power to prescribe regulations to promote the health, morals,
peace, education, good order or safety and general welfare of the people.'
Invariably described as "the most essential, insistent, and illimitable of powers"
and "in a sense, the greatest and most powerful attribute of government," the
exercise of the power may be judicially inquired into and corrected only if it is
capricious, whimsical, unjust or unreasonable, there having been a denial of due
process or a violation of any other applicable constitutional guarantee. As this
Court held through Justice Jose P. Bengson in Philippine Long Distance
Company vs. City of Davao, et al. police power 'is elastic and must be responsive
to various social conditions; it is not confined within narrow circumscriptions of
precedents resting on past conditions; it must follow the legal progress of a
democratic way of life.' We were even more emphatic in Vda. de Genuino vs.
The Court of agrarian Relations, et al., when We declared: "We do not see why
public welfare when clashing with the individual right to property should not be
made to prevail through the state's exercise of its police power."
Resolution No. 27, 1960 declaring the western part of High way 54, now E. de los
Santos Avenue (EDSA, for short) from Shaw Boulevard to the Pasig River as an
industrial and commercial zone, was obviously passed by the Municipal Council
of Mandaluyong, Rizal in the exercise of police power to safeguard or promote
the health, safety, peace, good order and general welfare of the people in the

locality. Judicial notice may be taken of the conditions prevailing in the area,
especially where Lots Nos. 5 and 6 are located. The lots themselves not only
front the highway; industrial and commercial complexes have flourished about
the place. EDSA, a main traffic artery which runs through several cities and
municipalities in the Metro Manila area, supports an endless stream of traffic and
the resulting activity, noise and pollution are hardly conducive to the health,
safety or welfare of the residents in its route. Having been expressly granted the
power to adopt zoning and subdivision ordinances or regulations, the municipality
of Mandaluyong, through its Municipal Council, was reasonably, if not perfectly,
justified under the circumstances, in passing the subject resolution. 68
xxxxxxxxx
Undoubtedly, the MMC Ordinance represents a legitimate exercise of police power.
The petitioners have not shown why we should hold otherwise other than for the
supposed "non-impairment" guaranty of the Constitution, which, as we have declared,
is secondary to the more compelling interests of general welfare. The Ordinance has
not been shown to be capricious or arbitrary or unreasonable to warrant the reversal
of the judgments so appealed. In that connection, we find no reversible error to have
been committed by the Court of Appeals.
WHEREFORE, premises considered, these petitions are DENIED No pronouncement
as to costs.
IT IS SO ORDERED.

G.R. No. L40474 August 29, 1975

CEBU
OXYGEN
&
ACETYLENE
CO.,
INC., petitioner,
vs.
HON. PASCUAL A. BERCILLES Presiding Judge, Branch XV, 14th Judicial
District, and JOSE L. ESPELETA, Assistant Provincial Fiscal, Province of Cebu,
representing the Solicitor General's Office and the Bureau of
Lands, respondents.
CONCEPCION, Jr., J.:
The parcel of land sought to be registered was only a portion of M. Borces Street,
Mabolo, Cebu City. On September 23, 1968, the City Council of Cebu, through
Resolution No. 2193, approved on October 3, 1968, declared the terminal portion of
M. Borces Street, Mabolo, Cebu City, as an abandoned road, the same not being
included in the City Development Plan. 1 Subsequently, on December 19, 1968, the
City Council of Cebu passed Resolution No. 2755, authorizing the Acting City Mayor
to sell the land through a public bidding. 2 Pursuant thereto, the lot was awarded to
the herein petitioner being the highest bidder and on March 3, 1969, the City of Cebu,
through the Acting City Mayor, executed a deed of absolute sale to the herein
petitioner for a total consideration of P10,800.00. 3 By virtue of the aforesaid deed of
absolute sale, the petitioner filed an application with the Court of First instance of
Cebu to have its title to the land registered. 4
On June 26, 1974, the Assistant Provincial Fiscal of Cebu filed a motion to dismiss
the application on the ground that the property sought to be registered being a public
road intended for public use is considered part of the public domain and therefore
outside the commerce of man. Consequently, it cannot be subject to registration by
any private individual. 5
After hearing the parties, on October 11, 1974 the trial court issued an order
dismissing the petitioner's application for registration of title. 6 Hence, the instant
petition for review.
For the resolution of this case, the petitioner poses the following questions:
(1) Does the City Charter of Cebu City (Republic Act No. 3857) under Section 31,
paragraph 34, give the City of Cebu the valid right to declare a road as
abandoned? and
(2) Does the declaration of the road, as abandoned, make it the patrimonial
property of the City of Cebu which may be the object of a common contract?
(1) The pertinent portions of the Revised Charter of Cebu City provides:

Section 31. Legislative Powers. Any provision of law and executive order to the
contrary notwithstanding, the City Council shall have the following legislative
powers:
xxx xxx xxx
(34) ...; to close any city road, street or alley, boulevard, avenue, park or square.
Property thus withdrawn from public servitude may be used or conveyed for any
purpose for which other real property belonging to the City may be lawfully used
or conveyed.
From the foregoing, it is undoubtedly clear that the City of Cebu is empowered to
close a city road or street. In the case of Favis vs. City of Baguio, 7 where the power
of the city Council of Baguio City to close city streets and to vacate or withdraw the
same from public use was similarly assailed, this court said:
5. So it is, that appellant may not challenge the city council's act of withdrawing a
strip of Lapu-Lapu Street at its dead end from public use and converting the
remainder thereof into an alley. These are acts well within the ambit of the power
to close a city street. The city council, it would seem to us, is the authority
competent to determine whether or not a certain property is still necessary for
public use.
Such power to vacate a street or alley is discretionary. And the discretion will not
ordinarily be controlled or interfered with by the courts, absent a plain case of
abuse or fraud or collusion. Faithfulness to the public trust will be presumed. So
the fact that some private interests may be served incidentally will not invalidate
the vacation ordinance.
(2) Since that portion of the city street subject of petitioner's application for
registration of title was withdrawn from public use, it follows that such withdrawn
portion becomes patrimonial property which can be the object of an ordinary contract.
Article 422 of the Civil Code expressly provides that "Property of public dominion,
when no longer intended for public use or for public service, shall form part of the
patrimonial property of the State."
Besides, the Revised Charter of the City of Cebu heretofore quoted, in very clear and
unequivocal terms, states that: "Property thus withdrawn from public servitude may
be used or conveyed for any purpose for which other real property belonging to the
City may be lawfully used or conveyed."
Accordingly, the withdrawal of the property in question from public use and its
subsequent sale to the petitioner is valid. Hence, the petitioner has a registerable title
over the lot in question.

WHEREFORE, the order dated October 11, 1974, rendered by the respondent court in Land
Reg. Case No. N-948, LRC Rec. No. N-44531 is hereby set aside, and the respondent court is
hereby ordered to proceed with the hearing of the petitioner's application for registration of title.
SO ORDERED.

G.R. No. 52159 December 22, 1989

3. Ordering furthermore, defendant transportation

company to reimburse plaintiff the sum of P
300.00 for his medical expenses and attorney's
fees in the sum of P 1,000.00, Philippine
Currency; and

JOSE
PILAPIL, petitioner,
vs.
HON. COURT OF APPEALS and ALATCO TRANSPORTATION COMPANY,
INC., respondents.

4. To pay the costs.

PADILLA, J.:
SO ORDERED 1
The record discloses the following facts:
Petitioner-plaintiff Jose Pilapil, a paying passenger, boarded respondent-defendant's
bus bearing No. 409 at San Nicolas, Iriga City on 16 September 1971 at about 6:00
P.M. While said bus No. 409 was in due course negotiating the distance between Iriga
City and Naga City, upon reaching the vicinity of the cemetery of the Municipality of
Baao, Camarines Sur, on the way to Naga City, an unidentified man, a bystander
along said national highway, hurled a stone at the left side of the bus, which hit
petitioner above his left eye. Private respondent's personnel lost no time in bringing
the petitioner to the provincial hospital in Naga City where he was confined and
treated.
Considering that the sight of his left eye was impaired, petitioner was taken to Dr.
Malabanan of Iriga City where he was treated for another week. Since there was no
improvement in his left eye's vision, petitioner went to V. Luna Hospital, Quezon City
where he was treated by Dr. Capulong. Despite the treatment accorded to him by Dr.
Capulong, petitioner lost partially his left eye's vision and sustained a permanent scar
above the left eye.
Thereupon, petitioner instituted before the Court of First Instance of Camarines Sur,
Branch I an action for recovery of damages sustained as a result of the stonethrowing incident. After trial, the court a quo rendered judgment with the following
dispositive part:
Wherefore, judgment is hereby entered:
1. Ordering defendant transportation company to
pay plaintiff Jose Pilapil the sum of P 10,000.00,
Philippine Currency, representing actual and
material damages for causing a permanent scar
on the face and injuring the eye-sight of the
plaintiff;
2. Ordering further defendant transportation
company to pay the sum of P 5,000.00,
Philippine Currency, to the plaintiff as moral and
exemplary damages;

From the judgment, private respondent appealed to the Court of Appeals where the
appeal was docketed as CA-G.R. No. 57354R. On 19 October 1979, the Court of
Appeals, in a Special Division of Five, rendered judgment reversing and setting aside
the judgment of the court a quo.
Hence the present petition.
In seeking a reversal of the decision of the Court of Appeals, petitioner contends that
said court has decided the issue not in accord with law. Specifically, petitioner argues
that the nature of the business of a transportation company requires the assumption
of certain risks, and the stoning of the bus by a stranger resulting in injury to
petitioner-passenger is one such risk from which the common carrier may not exempt
itself from liability.
We do not agree.
In consideration of the right granted to it by the public to engage in the business of
transporting passengers and goods, a common carrier does not give its consent to
become an insurer of any and all risks to passengers and goods. It merely undertakes
to perform certain duties to the public as the law imposes, and holds itself liable for
any breach thereof.
Under Article 1733 of the Civil Code, common carriers are required to observe
extraordinary diligence for the safety of the passenger transported by them, according
to all the circumstances of each case. The requirement of extraordinary diligence
imposed upon common carriers is restated in Article 1755: "A common carrier is
bound to carry the passengers safely as far as human care and foresight can provide,
using the utmost diligence of very cautious persons, with due regard for all the
circumstances." Further, in case of death of or injuries to passengers, the law
presumes said common carriers to be at fault or to have acted negligently. 2
While the law requires the highest degree of diligence from common carriers in the
safe transport of their passengers and creates a presumption of negligence against
them, it does not, however, make the carrier an insurer of the absolute safety of its
passengers. 3

Article 1755 of the Civil Code qualifies the duty of extraordinary care, vigilance and
precaution in the carriage of passengers by common carriers to only such as human
care and foresight can provide. what constitutes compliance with said duty is
adjudged with due regard to all the circumstances.
Article 1756 of the Civil Code, in creating a presumption of fault or negligence on the
part of the common carrier when its passenger is injured, merely relieves the latter,
for the time being, from introducing evidence to fasten the negligence on the former,
because the presumption stands in the place of evidence. Being a mere presumption,
however, the same is rebuttable by proof that the common carrier had exercised
extraordinary diligence as required by law in the performance of its contractual
obligation, or that the injury suffered by the passenger was solely due to a fortuitous
event. 4
In fine, we can only infer from the law the intention of the Code Commission and
Congress to curb the recklessness of drivers and operators of common carriers in the
conduct of their business.
Thus, it is clear that neither the law nor the nature of the business of a transportation
company makes it an insurer of the passenger's safety, but that its liability for
personal injuries sustained by its passenger rests upon its negligence, its failure to
exercise the degree of diligence that the law requires. 5
Petitioner contends that respondent common carrier failed to rebut the presumption of
negligence against it by proof on its part that it exercised extraordinary diligence for
the safety of its passengers.
We do not agree.
First, as stated earlier, the presumption of fault or negligence against the carrier is
only a disputable presumption. It gives in where contrary facts are established proving
either that the carrier had exercised the degree of diligence required by law or the
injury suffered by the passenger was due to a fortuitous event. Where, as in the
instant case, the injury sustained by the petitioner was in no way due to any defect in
the means of transport or in the method of transporting or to the negligent or willful
acts of private respondent's employees, and therefore involving no issue of
negligence in its duty to provide safe and suitable cars as well as competent
employees, with the injury arising wholly from causes created by strangers over which
the carrier had no control or even knowledge or could not have prevented, the
presumption is rebutted and the carrier is not and ought not to be held liable. To rule
otherwise would make the common carrier the insurer of the absolute safety of its
passengers which is not the intention of the lawmakers.
Second, while as a general rule, common carriers are bound to exercise extraordinary
diligence in the safe transport of their passengers, it would seem that this is not the
standard by which its liability is to be determined when intervening acts of strangers is

to be determined directly cause the injury, while the contract of carriage Article 1763
governs:
Article 1763. A common carrier is responsible for injuries suffered
by a passenger on account of the wilful acts or negligence of other
passengers or of strangers, if the common carrier's employees
through the exercise of the diligence of a good father of a family
could have prevented or stopped the act or omission.
Clearly under the above provision, a tort committed by a stranger which causes injury
to a passenger does not accord the latter a cause of action against the carrier. The
negligence for which a common carrier is held responsible is the negligent omission
by the carrier's employees to prevent the tort from being committed when the same
could have been foreseen and prevented by them. Further, under the same provision,
it is to be noted that when the violation of the contract is due to the willful acts of
strangers, as in the instant case, the degree of care essential to be exercised by the
common carrier for the protection of its passenger is only that of a good father of a
family.
Petitioner has charged respondent carrier of negligence on the ground that the injury
complained of could have been prevented by the common carrier if something like
mesh-work grills had covered the windows of its bus.
We do not agree.
Although the suggested precaution could have prevented the injury complained of,
the rule of ordinary care and prudence is not so exacting as to require one charged
with its exercise to take doubtful or unreasonable precautions to guard against
unlawful acts of strangers. The carrier is not charged with the duty of providing or
maintaining vehicles as to absolutely prevent any and all injuries to passengers.
Where the carrier uses cars of the most approved type, in general use by others
engaged in the same occupation, and exercises a high degree of care in maintaining
them in suitable condition, the carrier cannot be charged with negligence in this
respect. 6
Finally, petitioner contends that it is to the greater interest of the State if a carrier were
made liable for such stone-throwing incidents rather than have the bus riding public
lose confidence in the transportation system.
Sad to say, we are not in a position to so hold; such a policy would be better left to the
consideration of Congress which is empowered to enact laws to protect the public
from the increasing risks and dangers of lawlessness in society.
WHEREFORE, the judgment appealed from is hereby AFFIRMED.
SO ORDERED.

G.R. No. 148357

June 30, 2006

ANIANO A. ALBON, Petitioner, vs. BAYANI F. FERNANDO, City Mayor of

Marikina, ENGR. ALFONSO ESPIRITO, City Engineer of Marikina, ENGR. ANAKI
MADERAL, Assistant City Engineer of Marikina, and NATIVIDAD
CABALQUINTO, City Treasurer of Marikina, Respondents.
CORONA, J.:
The City of Marikina undertook a public works project to widen, clear and repair the
existing sidewalks of Marikina Greenheights Subdivision. It was undertaken by the
city government pursuant to Ordinance No. 59 like other infrastructure projects
relating to roads, streets and sidewalks previously undertaken by the city.

public in nature and ownership thereof belonged to the City of Marikina or the
Republic of the Philippines following the 1991 White Plains Association decision.
Thus, the improvement and widening of the sidewalks pursuant to Ordinance No. 59,
s. 1993 was well within the LGUs powers. On these grounds, the petition was
dismissed.
Petitioner moved for reconsideration of the appellate courts decision but it was
denied. Undaunted, he instituted this petition.
ISSUE: Whether or not a LGU may validly use public funds to undertake the
widening, repair and improvement of the sidewalks of a privately-owned
subdivision.
HELD: YES.

Petitioner Albon filed with the RTC of Marikina, a taxpayers suit for certiorari,
prohibition and injunction with damages against respondents, claiming 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 purposes4 as well as Sections 335 and 336 of RA 71605 and the Anti-Graft and
Corrupt Practices Act. Petitioner further alleged that there was no appropriation for
the project.
The trial court denied petitioners application for (TRO) and WPI because the
questioned undertaking was covered by 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.
Trial court dismissed the petition. It ruled that the City of Marikina was authorized to
carry out the contested undertaking pursuant to its inherent police power. Invoking
this Courts 1991 decision in White Plains Association v. Legaspi,7 the roads and
sidewalks inside the Marikina Greenheights Subdivision were deemed public
property.

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.9
Cities and municipalities also have the power to exercise such powers and discharge
such functions and responsibilities as may be necessary, appropriate or incidental to
efficient and effective provisions of the basic services and facilities, including
infrastructure facilities intended primarily to service the needs of their residents and
which are financed by their own funds. 10 These infrastructure facilities include
municipal or city roads and bridges and similar facilities.11
There is no question about the public nature and use of the sidewalks in the Marikina
Greenheights Subdivision. One of the "whereas clauses" of PD 1216 12 (which
amended PD 95713) declares that open spaces,14 roads, alleys and sidewalks in a
residential subdivision are for public use and beyond the commerce of man. In
conjunction herewith, PD 957, as amended by PD 1216, mandates subdivision
owners to set aside open spaces which shall be devoted exclusively for the use of the
general public.
Thus, the trial and appellate courts were correct in upholding the validity of Ordinance
No. 59, s. 1993. It was enacted in the exercise of the City of Marikinas police powers
to regulate the use of sidewalks.

Petitioner sought a reconsideration of the trial courts decision but it was denied.
Thereafter, petitioner elevated the case to the Court of Appeals via a petition for
certiorari, prohibition, injunction and damages. On December 22, 2000, the appellate
court sustained the ruling of the trial court and held that Ordinance No. 59, s. 1993,
was a valid enactment. The sidewalks of Marikina Greenheights Subdivision were

The word "street," in its correct and ordinary usage, includes not only the roadway
used for carriages and vehicular traffic generally but also the portion used for
pedestrian travel.21 The part of the street set aside for the use of pedestrians is known
as a sidewalk.22

Moreover, under subdivision laws,23 lots allotted by subdivision developers as road

lots include roads, sidewalks, alleys and planting strips.24 Thus, what is true for
subdivision roads or streets applies to subdivision sidewalks as well. Ownership of
the sidewalks in a private subdivision belongs to the subdivision owner/developer until
it is either transferred to the government by way of donation or acquired by the
government through expropriation.
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 money.28
In Pascual, the validity of RA 920 ("An Act Appropriating Funds for Public Works")
which appropriated P85,000 for the construction, repair, extension and improvement
of feeder roads within a privately-owned subdivision was questioned. The Court held
that where the land on which the projected feeder roads were to be constructed
belonged to a private person, an appropriation made by Congress for that purpose
was null and void.29
In Young v. City of Manila,30 the City of Manila undertook the filling of low-lying streets
of the Antipolo Subdivision, a privately-owned subdivision. The Court ruled that as
long as the private owner retained title and ownership of the subdivision, he was
under the obligation to reimburse to the city government the expenses incurred in
land-filling the streets.
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 privatelyowned 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."32 It particularly
refers to "municipal roads and bridges" and "similar facilities."33
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
Marikina Greenheights Subdivision
the challenged appropriation and
Similarly significant is the character
sidewalks.

of the open spaces (including the sidewalks) in

is material to the determination of the validity of
disbursement made by the City of Marikina.
of the direct object of the expenditure, that is, the

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 dispatch.
SO ORDERED.

G.R. No. 156686

July 27, 2011

NEW
SUN
VALLEY HOMEOWNERS' ASSOCIATION,
INC., Petitioner,
vs.
SANGGUNIANG BARANGAY, Barangay Sun Valley, Paraaque City, Roberto
Guevarra IN HIS CAPACITY AS Punong Barangay and MEMBERS OF THE
SANGGUNIANG BARANGAY, Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
This is a petition for review on certiorari under Rule 45 of the Rules of Court against
the Decision1 dated October 16, 2002 in CA-G.R. CV No. 65559 and the
Resolution2 dated January 17, 2003, both of the Court of Appeals.

purposes";6 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";7 and that the passage of the Resolution would
destroy the character of the subdivision. NSVHAI averred that contrary to
what was stated in the BSV Resolution, 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. According to NSVHAI, the
opening of the proposed route to all kinds of vehicles would result in
contributing to the traffic build-up on Doa Soledad Avenue, and that instead
of easing the traffic flow, it would generate a heavier volume of vehicles in an
already congested choke point. NSVHAI went on to state that a deterioration
of the peace and order condition inside the subdivision would be inevitable;
that the maintenance of peace and order in the residential area was one of
the reasons why entry and exit to the subdivision was regulated by the
Association and why the passing through of vehicles was controlled and
limited; and that criminal elements would take advantage of the opening to
public use of the roads in question.8

The facts are as follows:

The Sangguniang Barangay of Barangay Sun Valley (the "BSV Sangguniang
Barangay") issued BSV Resolution No. 98-0963 on October 13, 1998, entitled
"Directing the New Sun Valley Homeowners Association to Open Rosemallow and
Aster Streets to Vehicular and Pedestrian Traffic.
1. Pursuant to its power and authority under the Local Government Code of
1991 (Rep. Act No. 7160), the New Sun Valley Homeowners Association
(NSVHA) is hereby directed to open Rosemallow and Aster Sts. to vehicular
(private cars only) and pedestrian traffic at all hours daily except from 11
p.m. to 5 a.m. at which time the said streets may be closed for the sake of
the security of the residents therein.
2. The Barangay government take steps to address the security concerns of
the residents of the area concerned, including the possible assignment of a
barangay tanod or traffic enforcer therein, within the limits of the authority
and financial capability of the Barangay.
3. This Resolution shall become executory within 72 hours upon receipt
hereof by the Association or any of its members.4
The New Sun Valley Homeowners Association, Inc. (NSVHAI), represented
by its President, Marita Cortez, filed a Petition 5 for a "Writ of Preliminary
Injunction/Permanent Injunction with prayer for issuance of TRO" with the
Regional Trial Court (RTC) of Paraaque City. This was docketed as Civil
Case No. 98-0420. NSVHAI claimed therein that the implementation of BSV
Resolution No. 98-096 would "cause grave injustice and irreparable injury"
as "[the] affected homeowners acquired their properties for strictly residential

NSVHAI further contested the BSV Resolution by submitting the following

arguments to the RTC:
12. The road network inside the subdivision and drainage system is not
designed to withstand the entry of a heavy volume of vehicles especially
delivery vans and trucks. Thus, destruction of the roads and drainage
system will result. The safety, health and well-being of the residents will face
continuous danger to their detriment and prejudice;
13. When the residents bought their residential properties, they also paid
proportionately for the roads and the park in then subdivision. They have
therefore an existing equity on these roads. To open the roads to public use
is a violation of the rights and interests to a secure, peaceful and healthful
environment;
14. Aside from the availability of a better route to be opened, there are other
ways to ease traffic flow. The continuous presence of traffic enforcers on all
identified traffic choke points will prevent snarls which impede smooth travel.
The strict enforcement of traffic rules and regulations should be done;
15. There are a lot of undisciplined drivers of tricycles, jeepneys, trucks and
delivery [vans], which contribute to the traffic congestion. The barangay
should require these drivers to observe road courtesy and obedience to
traffic rules[.]9
Executive Judge Helen Bautista-Ricafort of the RTC issued a Temporary Restraining
Order10 (TRO) in Civil Case No. 98-0420 on October 30, 1998. Said Order provides:

Acting on the Application for WPI/ Permanent Injunction with Prayer for Issuance of a
TRO, filed by plaintiff and considering that there is extreme urgency, such that unless
the same is issued, plaintiff would suffer grave injustice and/or irreparable injury, let a
TRO issue directing the Sangguniang Barangay as represented by Punong Barangay
Roberto Guevarra to cease and desist from the implementation of Resolution No. 98096 or otherwise maintain the status quo until further Orders of this Court.

The BSV Sangguniang Barangay filed its Motion to Dismiss.

streets have long been part of the public domain and beyond the commerce of man.
In support of this, defendant cited the case of White Plains Association, Inc. vs.
Legaspi, 193 SCRA 765 wherein it was held that road lots of subdivisions constitute a
part of the mandatory open space reserved for public use; ownership of which is
automatically vested in the Republic of the Philippines although it is still registered in
the name of the developer/owner, its donation to the government is a mere formality."
The power or authority to close or open the said streets is vested in the local
government units and not on homeowners associations, pursuant to Section 21 of
the local Government Code (RA 7160) quoted as follows: "Section 21. Closure and
Opening of Roads. (a) A local government unit may, pursuant to an ordinance,
permanently or temporarily close or open any local road, alley, park, or square falling
within its jurisdiction x x x." In view thereof, Resolution No. 98-096 was passed by the
Sangguniang Barangay. Hence there is no right whatsoever on the part of Plaintiff
NSVHA entitled to the protection of the law. Further, defendant contends that
petitioner failed to exhaust administrative remedies as ordained in Sections 32 and 57
of the Local Government Code giving the city mayor the supervisory power, and the
power of review by the Sangguniang Panlungsod, respectively.

The RTC issued the following Order18:

No opposition to the motion to dismiss was filed by the Plaintiff.

Acting on the prayer for the issuance of a writ of preliminary injunction filed by
petitioner, it appearing that petitioner may suffer grave injustice or irreparable injury,
let a writ of preliminary injunction issue prohibiting the Sangguniang Barangay
represented by Punong Barangay Roberto Guevarra from implementing Resolution
no. 98-096 until further orders from this Court.

Same defendant seeks to reconsider the order granting the issuance of the writ of
preliminary injunction alleging that there is a pending motion to dismiss and Plaintiff
has not been able to establish an actually existing right.

NSVHAI submitted an Amended Petition, claiming that the BSV Sangguniang

Barangay had no jurisdiction over the opening of Rosemallow and Aster Streets (the
"subject roads"). NSVHAI likewise attached to its Amended Petition its Position
Paper13 dated July 21, 1998, which set forth its objection to the opening of the subject
roads for public use and 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 act.14

Petitioner is directed to file a bond in the amount of ONE HUNDRED THOUSAND

(P100,000.00) PESOS (sic) to answer for damages to defendants in the event the
Court finds petitioner is not entitled to said injunction.
The BSV Sangguniang Barangay filed on December 4, 1998 a Motion for
Reconsideration and to Dissolve Preliminary Injunction (with Memorandum of
Authorities).19
NSVHAI then filed an Urgent Ex-Parte Motion to Expunge on December 10, 1998,
moving to declare the above motion of the BSV Sangguniang Barangay as a mere
scrap of paper for being filed out of time and for failure to serve a copy thereof to the
counsel of petitioner.
The RTC subsequently dismissed the case in an Order20 dated August 17, 1999,
stating as follows:
Defendant Barangay Sun Valley moves to dismiss the instant case on the grounds
that the complaint states no cause of action and the court has no jurisdiction over the
subject matter. In summary, defendant alleges that the subject streets Aster and
Rosemallow inside Sun Valley Subdivision are owned by the local government. Such

Plaintiff has not filed an opposition thereto, instead it filed an urgent ex-parte motion
to expunge the motion for reconsideration on the ground that its counsel has not been
furnished with a copy of the motion for reconsideration, but the record shows that
Maria Cortez (plaintiffs representative) has received a copy of said motion.
After considering the arguments of the parties in their respective pleadings, this court
hereby resolves as follows:
1. The "Motion for Reconsideration" and the "Urgent Ex-parte Motion to
Expunge (motion for reconsideration)" are Denied being devoid of merit; and
2. The "Motion to Dismiss" is hereby Granted for failure of the plaintiff to
exhaust the administrative remedies under Sections 32 and 57 of the Local
Government Code.
WHEREFORE, let this case be as it is hereby ordered Dismissed. The writ of
preliminary injunction is hereby lifted.21
NSVHAI filed a Motion for Reconsideration 22 of the above-quoted Order but this was
denied by the RTC for lack of merit in an Order23 dated September 21, 1999.

NSVHAI raised the matter to the Court of Appeals, alleging that "despite the lack of
the required hearing" 24 and without any order requiring it to submit its
Comment/Opposition to the BSV Sangguniang Barangays Motion to Dismiss or that
of submitting said Motion for resolution, Judge Bautista-Ricafort issued an Order
which, to NSVHAIs complete surprise, granted the Motion. NSVHAI argued that the
RTC gravely erred in taking cognizance of, and thereafter ruling on, said Motion and
refusing to exercise jurisdiction over the subject matter of Civil Case No. 98-0420.

Considering that the Municipality of Paraaque is the registered owner of the road
lots of Sun Valley Subdivision, we are of the opinion that the roads become public in
use and ownership, and therefore, use of the roads by persons other than residents
of the Subdivision can no longer be curtailed. However, should the Municipal
Government decides to delegate its right to regulate the use of the said roads to the
Sun Valley Homeowners Association or Sun Valley Barangay Council, such right may
be exercise[d] by said association or council.

Respondents claimed that Barangay Resolution No. 98-096 was simply a directive to
petitioner, "a private aggrupation of some self-seeking homeowners,"27 and was just a
measure of internal policy among residents; that the opening of roads for traffic
reasons was "within the sole competence of the barangay to determine"; 28 and the
Mayor could have chosen, as it was within his power to do so, to cause the demolition
of the gates, which were illegally built by petitioner and therefore were obstructions on
the road, even without a Barangay resolution. Respondents likewise claimed that the
BSVs action could be considered a political question, which should be essentially
withdrawn from judicial cognizance, and constitutional law doctrine provides that the
courts would not interfere with political issues unless grave abuse of discretion is
shown, of which there was none on the part of the Barangay. Respondents argued
that petitioner did not have any actual legal right entitled to the protection of the law.29

3. Certification33 dated October 8, 1990 issued by Francisco B. Jose, Jr. under the
letterhead of the Office of the Municipal Attorney of Paraaque, which reads:

Respondents attached to their Appellees Brief six documents, labeled as Annexes "2"
to "7," all stamped "Certified True Copy" by a certain Roman E. Loreto, Legal Officer II
of Legal Department.30 The detailed information contained in each of the documents
that comprise respondents Annexes "2" to "7" is copied below:
1. 1st Indorsement31 from the Office of the Mayor of Paraaque dated May 20, 1988,
signed by Luzviminda A. Concepcion, Administrative Officer II, stating as follows:
Respectfully indorsed to Atty. Antonio G. Cruz, Municipal Attorney, of this municipality
the herein attached "Original Copies of Transfer Certificate of Title for Sun Valley
Open Space and Road Lots" with TCT Nos. 133552, 119836, and 122443 for your
appropriate actions.
2. Letter32 dated December 27, 1990 from Francisco B. Jose, Jr., Municipal Attorney
of Paraaque, addressed to the Municipal Council Secretary, which reads:
This has reference to your request dated December 18, 1990 relative to the letter of
inquiry of the Barangay Captain of Barangay Sun Valley dated December 13, 1990.
We wish to inform you that based on the available records of our office the open
space and road lots of Sun Valley Subdivision is already owned by the Municipal
Government of Paraaque as evidenced by TCT NOS. 133552, 119836, and 122443.
Copies of which are hereto attached for your ready reference.

This is to certify that based on the available records of this Office, the open space and
road lots of Sun Valley Subdivision has been donated and now owned by the
Municipality of Paranaque, as evidenced by TCT Nos. 133552, 119836, and 122443
copies of which are hereto attached.
This certification is being issued upon the request of Mr. Mario Cortez, President of
Sun Valley Homeowners Association.
4. Certification34 dated June 13, 1994, again signed by Francisco B. Jose, Jr., of the
Office of the Municipal Attorney, providing as follows:
This is to certify that based on the available records of this Office, the only road lots in
Sun Valley Subdivision titled in the name of the Municipality of Paraaque are those
covered by Transfer Certificates of Title Nos. 133552 and 122443.
This certification is being issued upon the request of Coun. Manuel T. De Guia.
5. Certification35 dated March 2, 1995 issued by Rodolfo O. Alora, OIC, Asst.
Municipal Legal Officer, which reads:
This is to certify that based on the available records of this Office, the open space
within Sun Valley Subdivision has already been donated to the Municipality as
evidenced by Transfer Certificate of Title No. 119836, copy of which is hereto
attached.
This certification is being issued upon the request of Atty. Rex G. Rico.
6. Certification36 dated October 26, 1998 issued by Ma. Riza Pureza Manalese, Legal
Researcher, Office of the Municipal Attorney, Paraaque City, which reads:
This is to certify that based on the available records of this Office, road lots of Sun
Valley Subdivision have already been donated to the Municipality of Paranaque as
evidenced by TCT NO. 133552, 119836, and 122443.

This certification is being issued upon the request of MR. WILLIAM UY.
The Court of Appeals issued a Decision dated October 16, 2002 denying the appeal
and affirming the Orders of the RTC dated August 17, 1999 and September 21, 1999.
The Court of Appeals likewise denied NSVHAIs Motion for Partial Reconsideration in
its Resolution promulgated on January 17, 2003, stating that after a thorough study of
the Motion for Reconsideration, it found no sufficient reason to deviate from its
findings and conclusion reached in its decision.

on the prayer for the issuance of a writ of preliminary injunction in view of the
expiration of the temporary restraining order (TRO).39
Petitioner quotes the transcript of stenographic notes (TSN) from the November 20,
1998 hearing before the RTC in the following manner:
Atty. Herrera:

Thus, NSVHAI (hereinafter, "petitioner") went to this Court.

Then, Your Honor, I files [sic] a motion petitioning to dismiss this instant case, which
should be resolved first before hearing this case.

Arguments of Petitioner

Atty. Nuez:

Petitioner alleges that the decision of the Court of Appeals was based on "facts that
[were] outside of the original Petition and Amended Petition and on supposed findings
of facts that are not even evidence offered before the court a quo." 37 Petitioner
likewise alleges that the facts used by the Court of Appeals in dismissing the case
were contrary to the records of Civil Case No. 98-0420.

Your Honor, please, with due respect to the opposing counsel, the hearing today is
supposed to be on the presentation of petitioners evidence in support of its prayer for
preliminary injunction. In connection with the amended complaint, I guess it is a
matter of right to amend its pleading. What happened here, the amended petition was
filed before this Honorable Court on November 13 at 11:10 a.m. but I think the motion
to dismiss was filed by the respondent on November 13 at 11:20 a.m.. Therefore, it is
the right of the petitioner insofar as the case is concerned.

Petitioner lists the following as its Questions of Law:

A
In sustaining the dismissal of Civil Case No. 98-0420, the Honorable Court of Appeals
sanctioned the departure of the Regional Trial Court from the accepted and usual
course of judicial proceedings
B
Whether or not the issuance of the Resolution promulgated January 17, 2003 and the
Decision promulgated October 16, 2002 by the Former 4th Division and the 4th
Division of the Court of Appeals sustaining the validity of dismissal of Civil Case No.
98-0420 is not in accord with law or with the applicable decisions of this Honorable
Supreme Court
C
Whether or not the Honorable Court of Appeals, with due respect, departed from the
accepted and usual course of judicial proceedings by making findings of fact not
supported by evidence of record38
Petitioner avers that the hearing for the respondents Motion to Dismiss was set on
November 20, 1998, without indication as to time and that during the hearing on such
date, counsel for respondents moved that their Motion to Dismiss be heard over the
objection of counsel for petitioner, who explained that there was an urgency in ruling

And therefore, this Court should proceed with the hearing on the preliminary
injunction instead of entertaining this matter. The temporary restraining order will
expire today and we have the right to be heard.
Court:
We will proceed first with the hearing (referring to the scheduled hearing of the prayer
for the issuance of the writ of preliminary injunction). (Transcript of Stenographic
Notes, November 20, 1998) (Underscoring and explanation petitioners.)40
Petitioner claims that the RTC proceeded to hear the prayer for the issuance of a
preliminary injunction and no hearing was conducted on the Motion to Dismiss.
Petitioner reiterates its earlier claim that it did not receive an order requiring it to
submit its Comment/Opposition to the Motion to Dismiss or informing it that said
Motion had been submitted for resolution.41
Petitioner alleges that the dismissal of Civil Case No. 98-0420 arose from the grant of
respondents Motion to Dismiss. Petitioner claims that it filed its Amended Petition on
November 13, 1998 at 11:10 a.m., or before respondents served any responsive
pleading, or before they had filed their Motion to Dismiss on the same date at about
11:20 a.m.42 Petitioner avers that the filing of said Amended Petition was a matter of
right under Section 2, Rule 10 of the 1997 Rules of Civil Procedure, and had the
effect of superseding the original petition dated October 28, 1998. Petitioner

concludes that the Motion to Dismiss was therefore directed against a non-existing
Petition.43
Petitioner argues that the RTCs ruling on the Motion to Dismiss is contrary to
procedural law because no hearing was conducted on said Motion to Dismiss; that
said motion violated Section 5, Rule 10 of the 1997 Rules of Civil Procedure for failing
to set the time of hearing thereof; and that instead of being resolved, said motion
should have been declared as a mere scrap of worthless paper.44
Petitioner claims that during the proceedings before the RTC on November 20, 1998,
both parties manifested that the Motion to Dismiss was never set for hearing, and that
when Judge Bautista-Ricafort said, "We will proceed first with the hearing,"45 she was
referring to the scheduled hearing of the prayer for the issuance of the writ of
preliminary injunction. Petitioner claims that it is crystal clear that it was deprived due
process when a ruling was had on the Motion to Dismiss despite the clear absence of
a hearing. Petitioner concludes that the Court of Appeals was manifestly mistaken
when it ruled that due process was observed in the issuance of the assailed Orders of
Judge Bautista-Ricafort, despite the lack of opportunity to submit a comment or
opposition to the Motion to Dismiss and the lack of issuance of an order submitting
said motion for resolution. Petitioner alleges that the Court of Appeals sanctioned the
ruling of the RTC that violated both substantial and procedural law. 46
Moreover, petitioner avers that contrary to the ruling of the Court of Appeals, the RTC
had jurisdiction to hear and decide the Amended Petition, and the doctrine of
exhaustion of administrative remedies was not applicable. This is because, according
to petitioner, such doctrine "requires that were a remedy before an administrative
agency is provided, relief must first be sought from the administrative agencies prior
to bringing an action before courts of justice."47 Petitioner claims that when it filed Civil
Case No. 98-08420, it did not have the luxury of time to elevate the matter to the
higher authorities under Sections 32 and 57 of the Local Government Code.
Petitioner alleges that the tenor of BSV Resolution No. 98-096 necessitated the
immediate filing of the injunction case on October 29, 1998, to forestall the prejudicial
effect of said resolution that was to take effect two days later. Thus, petitioner claims
that it had no other plain, speedy, and adequate remedy except to file the case.48
Anent the question of whether the Sangguniang Barangay should have passed an
ordinance instead of a resolution to open the subject roads, petitioner alleges that the
Court of Appeals should not have relied on respondents claim of ownership, as this
led to the erroneous conclusion that there was no need to pass an ordinance.
Petitioner insists that the supposed titles to the subject roads were never submitted to
the RTC, and the respondents merely attached certifications that the ownership of the
subject roads was already vested in the City Government of Paraaque City as
Annexes to their Appellees Brief before the Court of Appeals. Those annexes,
according to petitioner, were not formally offered as evidence.49
Petitioner avers that the records of Civil Case No. 98-0420 clearly show that there
was no proof or evidence on record to support the findings of the Court of Appeals.

This is because, allegedly, the dismissal of said case was due to the grant of a motion
to dismiss, and the case did not go to trial to receive evidence. 50 Petitioner avers that
a motion to dismiss hypothetically admits the truth of the facts alleged in the
complaint.51 In adopting the annexes as basis for its findings of fact, the Court of
Appeals allegedly disregarded the rules on Evidence.
Petitioner raises the following grounds for the issuance by this Court of a temporary
restraining order and/or writ of preliminary injunction:
Sangguniang Barangay Resolution No. 98-096 is repugnant to the proprietary rights
of the affected homeowners who are members of petitioner NSVHAI, such rights
undoubtedly protected by the Constitution.
As there is no proof otherwise (except the baseless findings of fact by the Honorable
Court of Appeals) that the streets encompassed by the concerned subdivision, Sun
Valley Subdivision, are all private properties. As such, the residents of Sun Valley
Subdivision have all the right to regulate the roads and open spaces within their
territorial jurisdiction.
This Honorable Supreme Court can take judicial knowledge that criminal activities
such as robbery and kidnappings are becoming daily fares in Philippine society.
Residents have invested their lifetimes savings in private subdivision since
subdivision living afford them privacy, exclusivity and foremost of all, safety. Living in
a subdivision has a premium and such premium translates into a comparatively more
expensive lot because of the safety, among others, that subdivision lifestyle offers.
But, with the enactment and intended implementation of Sangguniang Barangay
Resolution No. 98-096 to open Rosemallow and Aster Streets for public use, it is
indubitable that, instead of promoting the safety of resident of Sun Valley Subdivision,
respondents are endangering the life and property of the residents of the said
subdivision as they will now be exposed to criminal and lawless elements.
It is respectfully submitted that Sangguniang Barangay Resolution No. 98-096 has a
place only in an authoritarian government where proprietary rights and privacy are
alien concepts. Lest it be forgotten, ours is a democratic society and therefore, it
should not be ruled in a manner befitting of a despotic government.
Petitioner NSVHAI, in protection of the rights and interest of the residents of Sun
Valley Subdivision and in order to ensure that public officials will not abuse
governmental powers and use them in an oppressive and arbitrary manner, invokes
the judicial power of this Honorable Supreme Court and pray that a writ of preliminary
injunction be issued and, after hearing, be declared permanent. 52
A perusal of the documents attached by petitioner as Annexes revealed to the Court
the following, which were not discussed in the body of the petition:

1. A letter53 dated January 25, 2003 signed by Sonia G. Sison, President of NSVHAI,
to Mayor Joey P. Marquez, the pertinent portions of which provide:
We admit that we erred in not going to you directly because at that time, the NSVHA
received the letter-order of Brgy. Capt. Guevara two days before the effectivity of the
order. Aside from this, there was a long holiday (long weekend prior to November 1).
Thus, the Board of Governors had no other recourse but to seek a TRO and
thereafter a permanent injunction.
We now would like to seek your assistance concerning this urgent problem. For your
information there are already two (2) gates in and out of Sun Valley Subdivision.
Under P.D. 957, the Homeowners Association is mandated to protect the interest of
the homeowners and residents especially in so far as it affects the security, comfort
and the general welfare of the homeowners.
Thank you and because of the urgency of the matter, we anticipate your prompt and
favorable action. (Emphasis ours.)
2. A letter54 signed by Paraaque City Mayor Joey Marquez dated January 27, 2003,
addressed to Mr. Roberto Guevara, Office of the Barangay Captain, Barangay Sun
Valley, which reads in part:
This refers to your intended implementation of Barangay Sun Valley Resolution No.
98-096 entitled, "A RESOLUTION DIRECTING THE NEW SUN VALLEY
HOMEOWNERS ASSOCIATION TO OPEN ROSEMALLOW AND ASTER STREETS
TO VEHICULAR AND PEDESTRIAN TRAFFIC."
In this regard and pursuant to the provisions of Sec. 32 of the Local Government
Code of 1991 which vests upon the city mayor the right to exercise general
supervision over component barangays, to ensure that said barangays act within the
scope of their prescribed powers and functions, you are hereby directed to defer your
implementation of the subject ordinance based on the following grounds:
1. The roads subject of your resolution is a municipal road and not a
barangay road;
2. The opening or closure of any local road may be undertaken by a local
government unit pursuant to an ordinance and not through a mere resolution
as provided under Sec. 21 of the Local Government Code of 1991;
3. There is no more need to order the opening of the aforementioned roads
in view of the fact that Gelia and State Ave., have already been opened by
the subdivision to the general public to accommodate vehicular and
pedestrian traffic in the area;

4. There is a need to conduct public hearings, as in fact we shall be

conducting public hearings, on the matter to enable us to arrive at an
intelligent resolution of the issues involved.
3. A letter55 dated January 31, 2003 addressed to Mayor Joey Marquez,
signed by counsel for respondents, wherein the latter wrote:
We regret to observe that all the reasons that you have cited in your letter as grounds
for your order of non-implementation of the Barangay Resolution have been passed
upon and decided by the Court of Appeals, which lately denied the NSVHA Motion for
Reconsideration x x x.
xxxx
The Decision of the Court of Appeals is now the subject of an appeal taken by the
NSVHA to the Supreme Court. In deference to the high Court, you would do well to
reconsider your order to the Barangay and not pre-empt the high Court on its
decision. x x x.
Arguments of Respondents
Respondents filed their Comment56 on July 17, 2003. They manifest that the petition
is substantially a reproduction of petitioners brief filed with the Court of Appeals, and
consists of almost identical issues which have already been ventilated and decided
upon by the said court.
Respondents claim that the hearing held on November 20, 1998, as found by the
Court of Appeals, covered both the injunction and dismissal incidents, and that the
motion to dismiss on issues of jurisdiction was a prejudicial matter. Respondents
confirm that the RTC said it will proceed first with the hearing, but the lower court did
not specify if the hearing was going to take up the prayer for the issuance of
preliminary injunction or the motion to dismiss. Respondents further claim that by the
end of the hearing, after Atty. Florencio R. Herreras manifestation on the donated
public roads, counsels for both parties were asked by the court if they were
submitting, and both of them answered in the affirmative. 57 Respondents aver that
petitioners reply to its charge of misleading the Court was an admission that counsel
had tampered without authority with the TSN, and that the phrase "referring to the
scheduled hearing of the prayer for the issuance of the writ of preliminary
injunction"58 was said counsels own mere footnote.
Respondents allege that the issuance of the titles in favor of Paraaque over all the
roads in Sun Valley Subdivision was an official act by the land registration office of the
City of Paraaque, and was perfectly within the judicial notice of the Courts, pursuant
to Rule 129, Section 1 of the Rules of Court. 59 Respondents likewise allege that the
gates were earlier built illegally on the roads by the Association, and while petitioner
may lend a helping hand to the barangay, it cannot control the latters discretion as to

the wisdom of its traffic policies within the barangay. They maintain that petitioner had
no business putting up road blocks in the first place; that this matter is purely a local
government determination; and that it is even doubtful if courts would encroach upon
this autonomous determination for local constituents of the Barangay in deference to
the doctrine of separation of powers.
Respondents claim that since the subject matter of the case is a directive of the
Barangay to the petitioner, the requirement for an ordinance would not be necessary,
as there was no legislative determination in the Barangay resolution regarding what
class of roads to open or what to close by way of general policy. 60
Respondents contend that the Barangay Resolution was internal and temporary,
passed to solve a traffic problem. They propose a reason why petitioner allegedly
wants to control the subject roads, as follows:
The directive of the Barangay is certainly a declaration of an intention expressed by
resolution on complaints of residents for a convenient outlet of cars and pedestrians
during certain hours of the [day] or night. This need not be the subject of an
ordinance. It is addressed to a special group of residents, and not to the general
community. It refers to particular roads and at certain hours only, not to all the roads
and at all hours.
Hence, the Barangay Resolutions (sic) is but temporary in character, being a solution
to a momentary traffic problem then visualized by the Barangay and encouraged by
the MMDA. There is no legal question involved that is of any concern to the NSVHA.
The prevailing reason why the NSVHA desires to control the roads is the monetary
consideration it gains by its unilateral requirement of car stickers and of substantial
fees exacted from delivery vans and trucks for bringing in cargo into the subdivision.
And yet, the residents who, never gave their consent to this activities (sic), are busy
people and have merely tolerated this for a long time now. This tolerance did not of
course give legality to the illegal act. x x x.61

The Mayors act of interfering in Barangay Sun Valley affairs stemmed out of a longstanding political feud of the Mayor with the Punong Barangay. Its general supervision
did not extend to pure Barangay matters, which the Barangay would be x x x in a
better position to determine.
Furthermore, the general supervision of the Mayor is limited to the overseeing
authority that the Barangays act within the scope of their prescribed powers and
functions. Sadly, there is nothing in this Mayors letter x x x that would as much as
show a deviation by the Barangay Sun Valley from any prescribed powers or function.
The Mayors directive to the Barangay is of doubtful legality.
It was mainly the mounting traffic problem progressively experienced through the
years that prompted the Barangay to resolve to open Rosemallow and Aster Streets
in accordance with its power under Section 21 of R.A. 7160 to "temporarily open or
close any local road falling within its jurisdiction". This Resolution x x x was decided
upon after the Barangay Council made the necessary investigation and conducted
hearings in consultation with affected residents. In order to maintain some kind of
cordial relationship with the NSVHA, the Barangay by its resolution, opted to give the
NSVHA the chance to open the roads, which it earlier closed by means of arbitrarily
putting up steel gates without any apparent authority.63
Furthermore, respondents aver that the trial court and the appellate court have ruled
that only a local government unit (LGU), in this case the Barangay, can open or close
roads, whether they be public or private, in accordance with Section 21 of the Local
Government Code. Respondents contend that Metropolitan Manila Development
Authority v. Bel-Air Village Association, Inc., 64 wherein the Court discussed the power
of LGUs to open and close roads, is substantially in point.65
After the submission of the parties respective memoranda,66 this case was submitted
for decision.
The issues before us are:

As regards petitioners argument that the BSV Sangguniang Barangay should have
passed an ordinance instead of a resolution, respondents present their counterargument as follows:
Hence, even assuming for the sake of argument that a legal question exists on
whether it be a resolution or ordinance that should contain the Barangay directive,
such an issue is of no moment as plaintiff-appellant failed to exhaust the necessary
administrative remedies before resorting to court action, as found by the trial court
and the Court of Appeals. Section 32, R.A. 7160 (Local Government Code of 1991)
provides for a remedy from Barangay actions to the Mayor under the latters power of
general supervision.62
With regard to the Mayors involvement in this case, respondents have this to say:

1. Whether or not petitioner has a right to the protection of the law that would
entitle it to injunctive relief against the implementation of BSV Resolution No.
98-096; and
2. Whether or not petitioner failed to exhaust administrative remedies.
The Ruling of the Court
It bears stressing that due process simply means giving every contending party the
opportunity to be heard and the court to consider every piece of evidence presented
in their favor. In the instant case, Appellant cannot be said to have been denied of due
process. As borne by the records, while Appellees Motion to Dismiss did not set the
time for the hearing of the motion, the day set therefore was the same date set for the

hearing of Appellants prayer for the issuance of a writ of preliminary injunction that
is, November 20, 1998, with the precise purpose of presenting evidence in support of
the motion to dismiss on the same said scheduled hearing date and time when
Appellant and its counsel would be present. Moreover, Appellants predication of lack
of due hearing is belied by the fact that the hearing held on November 20, 1999 took
up not only the matter of whether or not to grant the injunction, but also tackled the
jurisdictional issue raised in Appellees Motion to Dismiss, which issues were
intertwined in both incidents. 67
We see no reason to depart from these findings by the Court of Appeals. Petitioners
recourse in questioning BSV Resolution No. 98-096 should have been with the Mayor
of Paraaque City, as clearly stated in Section 32 of the Local Government Code,
which provides:
Section 32. City and Municipal Supervision over Their Respective Barangays. The city or municipality, through the city or municipal mayor concerned, shall
exercise general supervision over component barangays to ensure that said
barangays act within the scope of their prescribed powers and functions.
We do not see how petitioners act could qualify as an exception to the doctrine of
exhaustion of administrative remedies.
It is the Mayor who can best review the Sangguniang Barangays actions to see if it
acted within the scope of its prescribed powers and functions. Indeed, this is a local
problem to be resolved within the local government. Thus, the Court of Appeals
correctly found that the trial court committed no reversible error in dismissing the case
for petitioners failure to exhaust administrative remedies, as the requirement under
the Local Government Code that the closure and opening of roads be made pursuant
to an ordinance, instead of a resolution, is not applicable in this case because the
subject roads belong to the City Government of Paraaque.
Moreover, being the party asking for injunctive relief, the burden of proof was on
petitioner to show ownership over the subject roads. This, petitioner failed to do.
In civil cases, it is a basic rule that the party making allegations has the burden of
proving them by a preponderance of evidence. Parties must rely on the strength of
their own evidence and not upon the weakness of the defense offered by their
opponent.69

Petitioner dared to question the barangays ownership over the subject roads when it
should have been the one to adduce evidence to support its broad claims of
exclusivity and privacy. Petitioner 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 then Municipality of Paraaque and were already being
used by the public, limiting their use exclusively to the subdivisions homeowners, and
collecting fees from delivery vans that would pass through the gates that they
themselves had built. It is petitioners authority to put up the road blocks in the first
place that becomes highly questionable absent any proof of ownership.
On the other hand, the local government units power to close and open roads within
its jurisdiction is clear under the Local Government Code, Section 21 of which
provides:
Section 21. Closure and Opening of Roads. (a) A local government unit
may, pursuant to an ordinance,permanently or temporarily close or open any
local road, alley, park, or square falling within its jurisdiction: Provided,
however, That in case of permanent closure, such ordinance must be approved
by at least two-thirds (2/3) of all the members of the sanggunian, and when
necessary, an adequate substitute for the public facility that is subject to
closure is provided.
We quote with approval the ruling of the Court of Appeals in this regard, as follows:
Contrary, however, to Appellants position, the above-quoted provision, which requires
the passage of an ordinance by a local government unit 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
thereto already issued in the name of, the City Government of Paraaque since the
year 1964 (Annexes "2" to "7" of Appellees Brief). This fact has not even been denied
by the Appellant in the proceedings below nor in the present recourse. Having been
already donated or turned over to the City Government of 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 herein
Appellant. Accordingly, the Appellant 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, Appellees act of passing the
disputed barangay resolution, the implementation of which is sought to be restrained
by Appellant, had for its purpose not the opening of a private road but may be
considered merely as a directive or reminder to the Appellant to cause the opening of
a public road which should rightfully be open for use to the general public.70
Petitioner wants this Court to recognize the rights and interests of the residents of
Sun Valley Subdivision but it miserably failed to establish the legal basis, such as its
ownership of the subject roads, which entitles petitioner to the remedy prayed for. It
even wants this Court to take "judicial knowledge that criminal activities such as

robbery and kidnappings are becoming daily fares in Philippine society." 71 This is
absurd. The Rules of Court provide which matters constitute judicial notice, to wit:

relief instead of going to the Mayor as provided by the Local Government Code, the
petition must be denied.

As petitioner has failed to establish that it has any right entitled to the protection of the
law, and it also failed to exhaust administrative remedies by applying for injunctive

WHEREFORE, premises considered, the petition is hereby DENIED. The Court of

Appeals DECISION dated October 16, 2002 and its RESOLUTION dated January 17,
2003 in CA-G.R. CV No. 65559 are both AFFIRMED. SO ORDERED.