Municipal liability caes
the Court of First Instance of Manila, a complaint — which was,
G.R. No. L-23052           January 29, 1968
CITY OF MANILA, petitioner,
vs.
GENARO N. TEOTICO and COURT OF
APPEALS, respondents.
City Fiscal Manuel T. Reyes for petitioner.
Sevilla, Daza and Associates for respondents.
CONCEPCION, C.J.:
Appeal by certiorari from a decision of the Court of Appeals.
On January 27, 1958, at about 8:00 p.m., Genaro N. Teotico was
at the corner of the Old Luneta and P. Burgos Avenue, Manila,
within a "loading and unloading" zone, waiting for a jeepney to
take him down town. After waiting for about five minutes, he
managed to hail a jeepney that came along to a stop. As he
stepped down from the curb to board the jeepney, and took a few
steps, he fell inside an uncovered and unlighted catch basin or
manhole on P. Burgos Avenue. Due to the fall, his head hit the
rim of the manhole breaking his eyeglasses and causing broken
pieces thereof to pierce his left eyelid. As blood flowed therefrom,
impairing his vision, several persons came to his assistance and
pulled him out of the manhole. One of them brought Teotico to
the Philippine General Hospital, where his injuries were treated,
after which he was taken home. In addition to the lacerated
wound in his left upper eyelid, Teotico suffered contusions on the
left thigh, the left upper arm, the right leg and the upper lip apart
from an abrasion on the right infra-patella region. These injuries
and the allergic eruption caused by anti-tetanus injections
administered to him in the hospital, required further medical
treatment by a private practitioner who charged therefor
P1,400.00.
As a consequence of the foregoing occurrence, Teotico filed, with
subsequently, amended — for damages against the City of
Manila, its mayor, city engineer, city health officer, city treasurer
and chief of police. As stated in the decision of the trial court, and
quoted with approval by the Court of Appeals,
At the time of the incident, plaintiff was a practicing public
accountant, a businessman and a professor at the
University of the East. He held responsible positions in
various business firms like the Philippine Merchandising
Co., the A.U. Valencia and Co., the Silver Swan
Manufacturing Company and the Sincere Packing
Corporation. He was also associated with several civic
organizations such as the Wack Wack Golf Club, the
Chamber of Commerce of the Philippines, Y's Men Club
of Manila and the Knights of Rizal. As a result of the
incident, plaintiff was prevented from engaging in his
customary occupation for twenty days. Plaintiff has lost a
daily income of about P50.00 during his incapacity to
work. Because of the incident, he was subjected to
humiliation and ridicule by his business associates and
friends. During the period of his treatment, plaintiff was
under constant fear and anxiety for the welfare of his
minor children since he was their only support. Due to the
filing of this case, plaintiff has obligated himself to pay his
counsel the sum of P2,000.00.
On the other hand, the defense presented evidence, oral
and documentary, to prove that the Storm Drain Section,
Office of the City Engineer of Manila, received a report of
the uncovered condition of a catchbasin at the corner of
P. Burgos and Old Luneta Streets, Manila, on January 24,
1958, but the same was covered on the same day (Exhibit
4); that again the iron cover of the same catch basin was
reported missing on January 30, 1958, but the said cover
was replaced the next day (Exhibit 5); that the Office of
the City Engineer never received any report to the effect
 that the catchbasin in question was not covered between
January 25 and 29, 1968; that it has always been a policy
of the said office, which is charged with the duty of
installation, repair and care of storm drains in the City of
Manila, that whenever a report is received from whatever
source of the loss of a catchbasin cover, the matter is
immediately attended to, either by immediately replacing
the missing cover or covering the catchbasin with steel
matting that because of the lucrative scrap iron business
then prevailing, stealing of iron catchbasin covers was
rampant; that the Office of the City Engineer has filed
complaints in court resulting from theft of said iron covers;
that in order to prevent such thefts, the city government
has changed the position and layout of catchbasins in the
City by constructing them under the sidewalks with
concrete cement covers and openings on the side of the
gutter; and that these changes had been undertaken by
the city from time to time whenever funds were available.
After appropriate proceedings the Court of First Instance of
Manila rendered the aforementioned decision sustaining the
theory of the defendants and dismissing the amended complaint,
without costs.
On appeal taken by plaintiff, this decision was affirmed by the
Court of Appeals, except insofar as the City of Manila is
concerned, which was sentenced to pay damages in the
aggregate sum of P6,750.00.  1 Hence, this appeal by the City of
Manila.
The first issue raised by the latter is whether the present case is
governed by Section 4 of Republic Act No. 409 (Charter of the
City of Manila) reading:
The city shall not be liable or held for damages or injuries
to persons or property arising from the failure of the
Mayor, the Municipal Board, or any other city officer, to
enforce the provisions of this chapter, or any other law or
ordinance, or from negligence of said Mayor, Municipal
Board, or other officers while enforcing or attempting to
enforce said provisions.
or by Article 2189 of the Civil Code of the Philippines which
provides:
Provinces, cities and municipalities shall be liable for
damages for the death of, or injuries suffered by, any
person by reason of defective conditions of road, streets,
bridges, public buildings, and other public works under
their control or supervision.
Manila maintains that the former provision should prevail over the
latter, because Republic Act 409, is a special law, intended
exclusively for the City of Manila, whereas the Civil Code is a
general law, applicable to the entire Philippines.
The Court of Appeals, however, applied the Civil Code, and, we
think, correctly. It is true that, insofar as its territorial application is
concerned, Republic Act No. 409 is a special law and the Civil
Code a general legislation; but, as regards the subject-matter of
the provisions above quoted, Section 4 of Republic Act 409
establishes a general rule regulating the liability of the City of
Manila for: "damages or injury to persons or property arising from
the failure of" city officers "to enforce the provisions of" said Act
"or any other law or ordinance, or from negligence" of the city
"Mayor, Municipal Board, or other officers while enforcing or
attempting to enforce said provisions." Upon the other hand,
Article 2189 of the Civil Code constitutes a particular prescription
making "provinces, cities and municipalities . . . liable for
damages for the death of, or injury suffered by any person by
reason" — specifically — "of the defective condition of roads,
streets, bridges, public buildings, and other-public works under
their control or supervision." In other words, said section 4 refers
to liability arising from negligence, in general, regardless of the
object thereof, whereas Article 2189 governs liability due to
"defective streets," in particular. Since the present action is based
upon the alleged defective condition of a road, said Article 2189 is
decisive thereon.
It is urged that the City of Manila cannot be held liable to Teotico
for damages: 1) because the accident involving him took place in
a national highway; and 2) because the City of Manila has not
been negligent in connection therewith.
As regards the first issue, we note that it is based upon an
allegation of fact not made in the answer of the City. Moreover,
Teotico alleged in his complaint, as well as in his amended
complaint, that his injuries were due to the defective condition of
a street which is "under the supervision and control" of the City. In
its answer to the amended complaint, the City, in turn, alleged
that "the streets aforementioned were and have been constantly
kept in good condition and regularly inspected and the storm
drains and manholes thereof covered by the defendant City and
the officers concerned" who "have been ever vigilant and zealous
in the performance of their respective functions and duties as
imposed upon them by law." Thus, the City had, in effect,
admitted that P. Burgos Avenue was and is under its control and
supervision.
Moreover, the assertion to the effect that said Avenue is a
national highway was made, for the first time, in its motion for
reconsideration of the decision of the Court of Appeals. Such
assertion raised, therefore, a question of fact, which had not been
put in issue in the trial court, and cannot be set up, for the first
time, on appeal, much less after the rendition of the decision of
the appellate court, in a motion for the reconsideration thereof.
At any rate, under Article 2189 of the Civil Code, it is not
necessary for the liability therein established to attach that the
defective roads or streets belong to the province, city or
municipality from which responsibility is exacted. What said article
requires is that the province, city or municipality have either
"control or supervision" over said street or road. Even if P. Burgos
Avenue were, therefore, a national highway, this circumstance
would not necessarily detract from its "control or supervision" by
the City of Manila, under Republic Act 409. In fact Section 18(x)
thereof provides:
Sec. 18. Legislative powers. — The Municipal Board shall
have the following legislative powers:
xxx     xxx     xxx
(x) Subject to the provisions of existing law to provide for
the laying out, construction and improvement, and
to regulate the use of streets, avenues, alleys, sidewalks,
wharves, piers, parks, cemeteries, and other public
places; to provide for lighting, cleaning, and sprinkling of
streets and public places; . . . to provide for the inspection
of, fix the license fees for and regulate the openings in the
same for the laying of gas, water, sewer and other pipes,
the building and repair of tunnels, sewers, and drains, and
all structures in and under the same and the erecting of
poles and the stringing of wires therein; to provide for and
regulate cross-works, curbs, and gutters
therein, . . . to regulate traffic and sales upon the
streets and other public places; to provide for
the abatement of nuisances in the same and punish the
authors or owners thereof; to provide for the construction
and maintenance, and regulate the use, of bridges,
viaducts and culverts; to prohibit and regulate ball playing,
kite-flying, hoop rolling, and other amusements which
may annoy persons using the streets and public places,
or frighten horses or other animals; to regulate the
speed of horses and other animals, motor and other
vehicles, cars, and locomotives within the limits of the city;
to regulate the lights used on all vehicles, cars, and
locomotives; . . . to provide for and change the location,
grade, and crossing of railroads, and compel any such
railroad to raise or lower its tracks to conform to such
provisions or changes; and to require railroad companies
to fence their property, or any part thereof, to provide
 suitable protection against injury to persons or property,
and to construct and repair ditches, drains, sewers, and
culverts along and under their tracks, so that the natural
drainage of the streets and adjacent property shall not be
obstructed.
This authority has been neither withdrawn nor restricted by
Republic Act No. 917 and Executive Order No. 113, dated May 2,
1955, upon which the City relies. Said Act governs the disposition
or appropriation of the highway funds and the giving of aid to
provinces, chartered cities and municipalities in the construction
of roads and streets within their respective boundaries, and
Executive Order No. 113 merely implements the provisions of
said Republic Act No. 917, concerning the disposition and
appropriation of the highway funds. Moreover, it provides that "the
construction, maintenance and improvement of national primary,
national secondary and national aid provincial and city roads shall
be accomplished by the Highway District Engineers and
Highway City Engineers under the supervision of the
Commissioner of Public Highways and shall be financed from
such appropriations as may be authorized by the Republic of the
Philippines in annual or special appropriation Acts."
Then, again, the determination of whether or not P. Burgos
Avenue is under the control or supervision of the City of Manila
and whether the latter is guilty of negligence, in connection with
the maintenance of said road, which were decided by the Court of
Appeals in the affirmative, is one of fact, and the findings of said
Court thereon are not subject to our review.
WHEREFORE, the decision appealed from should be as it is
hereby affirmed, with costs against the City of Manila. It 
G.R. No. 71049 May 29, 1987
BERNARDINO JIMENEZ, petitioner,
vs.
CITY OF MANILA and INTERMEDIATE APPELLATE
COURT, respondents.
PARAS, J.:
This is a petition for review on certiorari of: (1) the decision * of the
Intermediate Appellate Court in AC-G.R. No. 013887-CV Bernardino Jimenez v. Asiatic
Integrated Corporation and City of Manila, reversing the decision ** of the Court of First
Instance of Manila, Branch XXII in Civil Case No. 96390 between the same parties, but only
insofar as holding Asiatic Integrated Corporation solely liable for damages and attorney's
fees instead of making the City of Manila jointly and solidarily liable with it as prayed for by
the petitioner and (2) the resolution of the same Appellate Court denying his Partial Motion
for Reconsideration (Rollo, p. 2).
The dispositive portion of the Intermediate Appellate Court's
decision is as follows:
WHEREFORE, the decision appealed from is
hereby REVERSED. A new one is hereby entered
ordering the defendant Asiatic Integrated
Corporation to pay the plaintiff P221.90 actual
medical expenses, P900.00 for the amount paid
for the operation and management of a school
bus, P20,000.00 as moral damages due to pains,
sufferings and sleepless nights and P l0,000.00 as
attorney's fees.
SO ORDERED. (p. 20, Rollo)
The findings of respondent Appellate Court are as follows:
The evidence of the plaintiff (petitioner herein) shows that in the
morning of August 15, 1974 he, together with his neighbors, went
to Sta. Ana public market to buy "bagoong" at the time when the
public market was flooded with ankle deep rainwater. After
purchasing the "bagoong" he turned around to return home but
he stepped on an uncovered opening which could not be seen
because of the dirty rainwater, causing a dirty and rusty four- inch
nail, stuck inside the uncovered opening, to pierce the left leg of
plaintiff-petitioner penetrating to a depth of about one and a half
inches. After administering first aid treatment at a nearby
drugstore, his companions helped him hobble home. He felt ill
and developed fever and he had to be carried to Dr. Juanita
Mascardo. Despite the medicine administered to him by the latter,
his left leg swelled with great pain. He was then rushed to the
Veterans Memorial Hospital where he had to be confined for
twenty (20) days due to high fever and severe pain.
Upon his discharge from the hospital, he had to walk around with
crutches for fifteen (15) days. His injury prevented him from
attending to the school buses he is operating. As a result, he had
to engage the services of one Bienvenido Valdez to supervise his
business for an aggregate compensation of nine hundred pesos
(P900.00). (Decision, AC-G.R. CV No. 01387, Rollo, pp. 13-20).
Petitioner sued for damages the City of Manila and the Asiatic
Integrated Corporation under whose administration the Sta. Ana
Public Market had been placed by virtue of a Management and
Operating Contract (Rollo, p. 47).
The lower court decided in favor of respondents, the dispositive
portion of the decision reading:
WHEREFORE, judgment is hereby rendered in
favor of the defendants and against the plaintiff
dismissing the complaint with costs against the
plaintiff. For lack of sufficient evidence, the
counterclaims of the defendants are likewise
dismissed. (Decision, Civil Case No. 96390, Rollo,
p. 42).
As above stated, on appeal, the Intermediate Appellate Court
held the Asiatic Integrated Corporation liable for damages but
absolved respondent City of Manila.
Hence this petition.
The lone assignment of error raised in this petition is on whether
or not the Intermediate Appellate Court erred in not ruling that
respondent City of Manila should be jointly and severally liable
with Asiatic Integrated Corporation for the injuries petitioner
suffered.
In compliance with the resolution of July 1, 1985 of the First
Division of this Court (Rollo, p. 29) respondent City of Manila filed
its comment on August 13, 1985 (Rollo, p. 34) while petitioner
filed its reply on August 21, 1985 (Reno, p. 51).
Thereafter, the Court in the resolution of September 11, 1985
(Rollo, p. 62) gave due course to the petition and required both
parties to submit simultaneous memoranda
Petitioner filed his memorandum on October 1, 1985 (Rollo, p.
65) while respondent filed its memorandum on October 24, 1985
(Rollo, p. 82).
In the resolution of October 13, 1986, this case was transferred to
the Second Division of this Court, the same having been
assigned to a member of said Division (Rollo, p. 92).
The petition is impressed with merit.
As correctly found by the Intermediate Appellate Court, there is
no doubt that the plaintiff suffered injuries when he fell into a
drainage opening without any cover in the Sta. Ana Public
Market. Defendants do not deny that plaintiff was in fact injured
although the Asiatic Integrated Corporation tries to minimize the
extent of the injuries, claiming that it was only a small puncture
and that as a war veteran, plaintiff's hospitalization at the War
Veteran's Hospital was free. (Decision, AC-G.R. CV No. 01387,
Rollo, p. 6).
Respondent City of Manila maintains that it cannot be held liable
for the injuries sustained by the petitioner because under the
Management and Operating Contract, Asiatic Integrated
Corporation assumed all responsibility for damages which may be
suffered by third persons for any cause attributable to it.
It has also been argued that the City of Manila cannot be held
liable under Article 1, Section 4 of Republic Act No. 409 as
amended (Revised Charter of Manila) which provides:
The City shall not be liable or held for damages or
injuries to persons or property arising from the
failure of the Mayor, the Municipal Board, or any
other City Officer, to enforce the provisions of this
chapter, or any other law or ordinance, or from
negligence of said Mayor, Municipal Board, or any
other officers while enforcing or attempting to
enforce said provisions.
This issue has been laid to rest in the case of City of Manila v.
Teotico (22 SCRA 269-272 [1968]) where the Supreme Court
squarely ruled that Republic Act No. 409 establishes a general
rule regulating the liability of the City of Manila for "damages or
injury to persons or property arising from the failure of city
officers" to enforce the provisions of said Act, "or any other law or
ordinance or from negligence" of the City "Mayor, Municipal
Board, or other officers while enforcing or attempting to enforce
said provisions."
Upon the other hand, Article 2189 of the Civil Code of the
Philippines which provides that:
Provinces, cities and municipalities shall be liable
for damages for the death of, or injuries suffered
by any person by reason of defective conditions of
roads, streets, bridges, public buildings and other
public works under their control or supervision.
constitutes a particular prescription making "provinces, cities and
municipalities ... liable for damages for the death of, or injury
suffered by any person by reason" — specifically — "of the
defective condition of roads, streets, bridges, public buildings,
and other public works under their control or supervision." In other
words, Art. 1, sec. 4, R.A. No. 409 refers to liability arising from
negligence, in general, regardless of the object, thereof, while
Article 2189 of the Civil Code governs liability due to "defective
streets, public buildings and other public works" in particular and
is therefore decisive on this specific case.
In the same suit, the Supreme Court clarified further that under
Article 2189 of the Civil Code, it is not necessary for the liability
therein established to attach, that the defective public works
belong to the province, city or municipality from which
responsibility is exacted. What said article requires is that the
province, city or municipality has either "control or supervision"
over the public building in question.
In the case at bar, there is no question that the Sta. Ana Public
Market, despite the Management and Operating Contract
between respondent City and Asiatic Integrated Corporation
remained under the control of the former.
For one thing, said contract is explicit in this regard, when it
provides:
II
That immediately after the execution of this
contract, the SECOND PARTY shall start the
 painting, cleaning, sanitizing and repair of the
public markets and talipapas and within ninety
(90) days thereof, the SECOND PARTY shall
submit a program of improvement, development,
rehabilitation and reconstruction of the city public
markets and talipapas subject to prior approval of
the FIRST PARTY. (Rollo, p. 44)
xxx xxx xxx
VI
That all present personnel of the City public
markets and talipapas shall be retained by the
SECOND PARTY as long as their services remain
satisfactory and they shall be extended the same
rights and privileges as heretofore enjoyed by
them. Provided, however, that the SECOND
PARTY shall have the right, subject to prior
approval of the FIRST PARTY to discharge any of
the present employees for cause. (Rollo, p. 45).
VII
That the SECOND PARTY may from time to time
be required by the FIRST PARTY, or his duly
authorized representative or representatives, to
report, on the activities and operation of the City
public markets and talipapas and the facilities and
conveniences installed therein, particularly as to
their cost of construction, operation and
maintenance in connection with the stipulations
contained in this Contract. (lbid)
The fact of supervision and control of the City over subject public
market was admitted by Mayor Ramon Bagatsing in his letter to
Secretary of Finance Cesar Virata which reads:
These cases arose from the controversy over the
Management and Operating Contract entered into
on December 28, 1972 by and between the City of
Manila and the Asiatic Integrated Corporation,
whereby in consideration of a fixed service fee,
the City hired the services of the said corporation
to undertake the physical management,
maintenance, rehabilitation and development of
the City's public markets and' Talipapas' subject to
the control and supervision of the City.
xxx xxx xxx
It is believed that there is nothing incongruous in
the exercise of these powers vis-a-vis the
existence of the contract, inasmuch as the City
retains the power of supervision and control over
its public markets and talipapas under the terms
of the contract. (Exhibit "7-A") (Emphasis
supplied.) (Rollo, p. 75).
In fact, the City of Manila employed a market master for the Sta.
Ana Public Market whose primary duty is to take direct
supervision and control of that particular market, more
specifically, to check the safety of the place for the public.
Thus the Asst. Chief of the Market Division and Deputy Market
Administrator of the City of Manila testified as follows:
Court This market master is an
employee of the City of Manila?
Mr. Ymson Yes, Your Honor.
Q What are his functions?
 A Direct supervision and control
over the market area assigned to
him."(T.s.n.,pp. 41-42, Hearing of
May 20, 1977.)
xxx xxx xxx
Court As far as you know there is
or is there any specific employee
assigned with the task of seeing to
it that the Sta. Ana Market is safe
for the public?
Mr. Ymson Actually, as I stated,
Your Honor, that the Sta. Ana has
its own market master. The
primary duty of that market master
is to make the direct supervision
and control of that particular
market, the check or verifying
whether the place is safe for public
safety is vested in the market
master. (T.s.n., pp. 2425, Hearing
of July 27, 1977.) (Emphasis
supplied.) (Rollo, p. 76).
Finally, Section 30 (g) of the Local Tax Code as amended,
provides:
The treasurer shall exercise direct and immediate
supervision administration and control over public
markets and the personnel thereof, including
those whose duties concern the maintenance and
upkeep of the market and ordinances and other
pertinent rules and regulations. (Emphasis
supplied.) (Rollo, p. 76)
The contention of respondent City of Manila that petitioner should
not have ventured to go to Sta. Ana Public Market during a
stormy weather is indeed untenable. As observed by respondent
Court of Appeals, it is an error for the trial court to attribute the
negligence to herein petitioner. More specifically stated, the
findings of appellate court are as follows:
... The trial court even chastised the plaintiff for
going to market on a rainy day just to buy
bagoong. A customer in a store has the right to
assume that the owner will comply with his duty to
keep the premises safe for customers. If he
ventures to the store on the basis of such
assumption and is injured because the owner did
not comply with his duty, no negligence can be
imputed to the customer. (Decision, AC-G. R. CV
No. 01387, Rollo, p. 19).
As a defense against liability on the basis of a quasi-delict, one
must have exercised the diligence of a good father of a family.
(Art. 1173 of the Civil Code).
There is no argument that it is the duty of the City of Manila to
exercise reasonable care to keep the public market reasonably
safe for people frequenting the place for their marketing needs.
While it may be conceded that the fulfillment of such duties is
extremely difficult during storms and floods, it must however, be
admitted that ordinary precautions could have been taken during
good weather to minimize the dangers to life and limb under
those difficult circumstances.
For instance, the drainage hole could have been placed under the
stalls instead of on the passage ways. Even more important is the
fact, that the City should have seen to it that the openings were
covered. Sadly, the evidence indicates that long before petitioner
fell into the opening, it was already uncovered, and five (5)
months after the incident happened, the opening was still
uncovered. (Rollo, pp. 57; 59). Moreover, while there are findings
that during floods the vendors remove the iron grills to hasten the G.R. No. 61516 March 21, 1989
flow of water (Decision, AC-G.R. CV No. 0 1387; Rollo, p. 17),
there is no showing that such practice has ever been prohibited, FLORENTINA A. GUILATCO, petitioner,
much less penalized by the City of Manila. Neither was it shown vs.
that any sign had been placed thereabouts to warn passersby of CITY OF DAGUPAN, and the HONORABLE COURT OF
the impending danger. APPEALS, respondents.

To recapitulate, it appears evident that the City of Manila is Nolan R. Evangelista for petitioner.
likewise liable for damages under Article 2189 of the Civil Code,
respondent City having retained control and supervision over the
The City Legal Officer for respondents.
Sta. Ana Public Market and as tort-feasor under Article 2176 of
the Civil Code on quasi-delicts

Petitioner had the right to assume that there were no openings in

the middle of the passageways and if any, that they were SARMIENTO, J.:
adequately covered. Had the opening been covered, petitioner
could not have fallen into it. Thus the negligence of the City of In a civil action 1 for recovery of damages filed by the petitioner Florentina A.
Guilatco, the following judgment was rendered against the respondent City of Dagupan:
Manila is the proximate cause of the injury suffered, the City is
therefore liable for the injury suffered by the peti- 4 petitioner.
xxx
Respondent City of Manila and Asiatic Integrated Corporation
being joint tort-feasors are solidarily liable under Article 2194 of (1) Ordering defendant City of Dagupan to pay
the Civil Code. plaintiff actual damages in the amount of P 15,924
(namely P8,054.00 as hospital, medical and other
expenses [Exhs. H to H-60], P 7,420.00 as lost
PREMISES CONSIDERED, the decision of the Court of Appeals
income for one (1) year [Exh. F] and P 450.00 as
is hereby MODIFIED, making the City of Manila and the Asiatic
bonus). P 150,000.00 as moral damages, P
Integrated Corporation solidarily liable to pay the plaintiff P221.90
50,000.00 as exemplary damages, and P
actual medical expenses, P900.00 for the amount paid for the
3,000.00 as attorney's fees, and litigation
operation and management of the school bus, P20,000.00 as
expenses, plus costs and to appropriate through
moral damages due to pain, sufferings and sleepless nights and
its Sangguniang Panglunsod (City Council) said
P10,000.00 as attorney's fees.
amounts for said purpose;
SO ORDERED.
(2) Dismissing plaintiffs complaint as against
defendant City Engr. Alfredo G. Tangco; and
 (3) Dismissing the counterclaims of defendant City
of Dagupan and defendant City Engr. Alfredo G.
Tangco, for lack of merit. 2
The facts found by the trial court are as follows: 3
It would appear from the evidences that on July
25, 1978, herein plaintiff, a Court Interpreter of
Branch III, CFI--Dagupan City, while she was
about to board a motorized tricycle at a sidewalk
located at Perez Blvd. (a National Road, under the
control and supervision of the City of Dagupan)
accidentally fell into a manhole located on said
sidewalk, thereby causing her right leg to be
fractured. As a result thereof, she had to be
hospitalized, operated on, confined, at first at the
Pangasinan Provincial Hospital, from July 25 to
August 3, 1978 (or for a period of 16 days). She
also incurred hospitalization, medication and other
expenses to the tune of P 8,053.65 (Exh. H to H-
60) or a total of P 10,000.00 in all, as other
receipts were either lost or misplaced; during the
period of her confinement in said two hospitals,
plaintiff suffered severe or excruciating pain not
only on her right leg which was fractured but also
on all parts of her body; the pain has persisted
even after her discharge from the Medical City
General Hospital on October 9, 1978, to the
present. Despite her discharge from the Hospital
plaintiff is presently still wearing crutches and the
Court has actually observed that she has difficulty
in locomotion. From the time of the mishap on
July 25, 1978 up to the present, plaintiff has not
yet reported for duty as court interpreter, as she
has difficulty of locomotion in going up the stairs
of her office, located near the city hall in Dagupan
City. She earns at least P 720.00 a month
consisting of her monthly salary and other means
of income, but since July 25, 1978 up to the
present she has been deprived of said income as
she has already consumed her accrued leaves in
the government service. She has lost several
pounds as a result of the accident and she is no
longer her former jovial self, she has been unable
to perform her religious, social, and other activities
which she used to do prior to the incident.
Dr. Norberto Felix and Dr. Dominado Manzano of
the Provincial Hospital, as well as Dr. Antonio
Sison of the Medical City General Hospital in
Mandaluyong Rizal (Exh. I; see also Exhs. F, G,
G-1 to G-19) have confirmed beyond shadow of
any doubt the extent of the fracture and injuries
sustained by the plaintiff as a result of the mishap.
On the other hand, Patrolman Claveria, De Asis
and Cerezo corroborated the testimony of the
plaintiff regarding the mishap and they have
confirmed the existence of the manhole (Exhs. A,
B, C and sub-exhibits) on the sidewalk along
Perez Blvd., at the time of the incident on July 25,
1978 which was partially covered by a concrete
flower pot by leaving gaping hole about 2 ft. long
by 1 1/2 feet wide or 42 cms. wide by 75 cms.
long by 150 cms. deep (see Exhs. D and D-1).
Defendant Alfredo Tangco, City Engineer of
Dagupan City and admittedly ex-officio Highway
Engineer, City Engineer of the Public Works and
Building Official for Dagupan City, admitted the
existence of said manhole along the sidewalk in
Perez Blvd., admittedly a National Road in front of
the Luzon Colleges. He also admitted that said
manhole (there are at least 11 in all in Perez
Blvd.) is owned by the National Government and
the sidewalk on which they are found along Perez
Blvd. are also owned by the National Government.
 But as City Engineer of Dagupan City, he
supervises the maintenance of said manholes or
drainage system and sees to it that they are
properly covered, and the job is specifically done
by his subordinates, Mr. Santiago de Vera
(Maintenance Foreman) and Engr. Ernesto
Solermo also a maintenance Engineer. In his
answer defendant Tangco expressly admitted in
par. 7-1 thereof, that in his capacity as ex-officio
Highway Engineer for Dagupan City he exercises
supervision and control over National roads,
including the Perez Blvd. where the incident
happened.
On appeal by the respondent City of Dagupan, the appellate
court 4 reversed the lower court findings on the ground that no evidence was presented
by the plaintiff- appellee to prove that the City of Dagupan had "control or supervision" over
Perez Boulevard. 5
The city contends that Perez Boulevard, where the fatal drainage hole is located, is a
national road that is not under the control or supervision of the City of Dagupan. Hence, no
liability should attach to the city. It submits that it is actually the Ministry of Public Highways
that has control or supervision through the Highway Engineer which, by mere coincidence,
is held concurrently by the same person who is also the City Engineer of Dagupan.
Article 2189. Provinces, cities and municipalities
shall be liable for damages for the death of, or
injuries suffered by, any person by reason of the
defective condition of roads, streets, bridges,
public buildings, and other public works under
their control or supervision.
It is not even necessary for the defective road or street to belong
to the province, city or municipality for liability to attach. The
article only requires that either control or supervision is exercised
over the defective road or street. 6
In the case at bar, this control or supervision is provided for in the
charter of Dagupan and is exercised through the City Engineer
who has the following duties:
Sec. 22. The City Engineer--His powers, duties
and compensation-There shall be a city engineer,
who shall be in charge of the department of
Engineering and Public Works. He shall receive a
salary of not exceeding three thousand pesos per
annum. He shall have the following duties:

After examination of the findings and conclusions of the trial court xxx
and those of the appellate court, as well as the arguments
presented by the parties, we agree with those of the trial court (j) He shall have the care and custody of the
and of the petitioner. Hence, we grant the petition. public system of waterworks and sewers, and all
sources of water supply, and shall control,
In this review on certiorari, we have simplified the errors assigned maintain and regulate the use of the same, in
by the petitioner to a single issue: whether or not control or accordance with the ordinance relating thereto;
supervision over a national road by the City of Dagupan exists, in shall inspect and regulate the use of all private
effect binding the city to answer for damages in accordance with systems for supplying water to the city and its
article 2189 of the Civil Code. inhabitants, and all private sewers, and their
connection with the public sewer system.
The liability of public corporations for damages arising from
injuries suffered by pedestrians from the defective condition of xxx
roads is expressed in the Civil Code as follows:
The same charter of Dagupan also provides that the laying out,
construction and improvement of streets, avenues and alleys and
sidewalks, and regulation of the use thereof, may be legislated by
the Municipal Board . 7 Thus the charter clearly indicates that the city indeed has
supervision and control over the sidewalk where the open drainage hole is located.
The express provision in the charter holding the city not liable for
damages or injuries sustained by persons or property due to the
failure of any city officer to enforce the provisions of the charter,
can not be used to exempt the city, as in the case at bar.8
The charter only lays down general rules regulating the liability of the city. On the other hand
article 2189 applies in particular to the liability arising from "defective streets, public
buildings and other public works." 9
The City Engineer, Mr. Alfredo G. Tangco, admits that he exercises control or supervision
over the said road. But the city can not be excused from liability by the argument that the
duty of the City Engineer to supervise or control the said provincial road belongs more to his
functions as an ex-officio Highway Engineer of the Ministry of Public Highway than as a city
officer. This is because while he is entitled to an honorarium from the Ministry of Public
Highways, his salary from the city government substantially exceeds the honorarium.
We do not agree.
Alfredo G. Tangco "(i)n his official capacity as City Engineer of
Dagupan, as Ex- Officio Highway Engineer, as Ex-Officio City
Engineer of the Bureau of Public Works, and, last but not the
least, as Building Official for Dagupan City, receives the following
monthly compensation: P 1,810.66 from Dagupan City; P 200.00
from the Ministry of Public Highways; P 100.00 from the Bureau
of Public Works and P 500.00 by virtue of P.D. 1096,
respectively." 10 This function of supervision over streets, public buildings, and other
public works pertaining to the City Engineer is coursed through a Maintenance Foreman and
a Maintenance Engineer.11 Although these last two officials are employees of the National
Government, they are detailed with the City of Dagupan and hence receive instruction and
supervision from the city through the City Engineer.
There is, therefore, no doubt that the City Engineer exercises
control or supervision over the public works in question. Hence,
the liability of the city to the petitioner under article 2198 of the
Civil Code is clear.
Be all that as it may, the actual damages awarded to the
petitioner in the amount of P 10,000.00 should be reduced to the
proven expenses of P 8,053.65 only. The trial court should not
have rounded off the amount. In determining actual damages, the
court can not rely on "speculation, conjecture or guess work" as
to the amount. Without the actual proof of loss, the award of
actual damages becomes erroneous. 12
On the other hand, moral damages may be awarded even without proof of pecuniary loss,
inasmuch as the determination of the amount is discretionary on the court.13 Though
incapable of pecuniary estimation, moral damages are in the nature of an award to
compensate the claimant for actual injury suffered but which for some reason can not be
proven. However, in awarding moral damages, the following should be taken into
consideration:
(1) First, the proximate cause of the injury must be
the claimee's acts.14
(2) Second, there must be compensatory or actual damages as
satisfactory proof of the factual basis for damages.15
(3) Third, the award of moral damages must be predicated on any of
the cases enumerated in the Civil Code. 16
In the case at bar, the physical suffering and mental anguish suffered by the petitioner were
proven. Witnesses from the petitioner's place of work testified to the degeneration in her
disposition-from being jovial to depressed. She refrained from attending social and civic
activities.17
Nevertheless the award of moral damages at P 150,000.00 is
excessive. Her handicap was not permanent and disabled her
only during her treatment which lasted for one year. Though
evidence of moral loss and anguish existed to warrant the award
of damages,18 the moderating hand of the law is called for. The Court has time and
again called attention to the reprehensible propensity of trial judges to award damages
without basis,19 resulting in exhorbitant amounts.20
Although the assessment of the amount is better left to the discretion of the trial
court 21 under preceding jurisprudence, the amount of moral damages should be reduced
to P 20,000.00.
As for the award of exemplary damages, the trial court correctly
pointed out the basis:
To serve as an example for the public good, it is
high time that the Court, through this case, should
serve warning to the city or cities concerned to be
more conscious of their duty and responsibility to
their constituents, especially when they are
engaged in construction work or when there are
manholes on their sidewalks or streets which are
uncovered, to immediately cover the same, in
order to minimize or prevent accidents to the poor
pedestrians.22
(1) Ordering the defendant City of Dagupan to pay
the plaintiff actual damages in the amount of P
15,924 (namely P 8,054.00 as hospital, medical
and other expenses; P 7,420.00 as lost income for
one (1) year and P 450.00 as bonus); P 20,000.00
as moral damages and P 10,000.00 as exemplary
damages.
The attorney's fees of P 3,000.00 remain the same.
SO ORDERED.

Too often in the zeal to put up "public impact" projects such as beautification drives, the end
is more important than the manner in which the work is carried out. Because of this
obsession for showing off, such trivial details as misplaced flower pots betray the careless
execution of the projects, causing public inconvenience and inviting accidents.

Pending appeal by the respondent City of Dagupan from the trial

court to the appellate court, the petitioner was able to secure an
order for garnishment of the funds of the City deposited with the
Philippine National Bank, from the then presiding judge, Hon. g.R. No. L-11154            March 21, 1916
Willelmo Fortun. This order for garnishment was revoked
subsequently by the succeeding presiding judge, Hon. Romeo D. E. MERRITT, plaintiff-appellant,
Magat, and became the basis for the petitioner's motion for vs.
reconsideration which was also denied. 23 GOVERNMENT OF THE PHILIPPINE ISLANDS, defendant-
appellant.
We rule that the execution of the judgment of the trial court
pending appeal was premature. We do not find any good reason Crossfield and O'Brien for plaintiff.
to justify the issuance of an order of execution even before the Attorney-General Avanceña for defendant..
expiration of the time to appeal .24
TRENT, J.:
WHEREFORE, the petition is GRANTED. The assailed decision
and resolution of the respondent Court of Appeals are hereby This is an appeal by both parties from a judgment of the Court of
REVERSED and SET ASIDE and the decision of the trial court, First Instance of the city of Manila in favor of the plaintiff for the
dated March 12, 1979 and amended on March 13, 1979, is sum of P14,741, together with the costs of the cause.
hereby REINSTATED with the indicated modifications as regards
the amounts awarded:
Counsel for the plaintiff insist that the trial court erred (1) "in
limiting the general damages which the plaintiff suffered to
P5,000, instead of P25,000 as claimed in the complaint," and (2)
"in limiting the time when plaintiff was entirely disabled to two
months and twenty-one days and fixing the damage accordingly
in the sum of P2,666, instead of P6,000 as claimed by plaintiff in
his complaint."
The Attorney-General on behalf of the defendant urges that the
trial court erred: (a) in finding that the collision between the
plaintiff's motorcycle and the ambulance of the General Hospital
was due to the negligence of the chauffeur; (b) in holding that the
Government of the Philippine Islands is liable for the damages
sustained by the plaintiff as a result of the collision, even if it be
true that the collision was due to the negligence of the chauffeur;
and (c) in rendering judgment against the defendant for the sum
of P14,741.
The trial court's findings of fact, which are fully supported by the
record, are as follows:
It is a fact not disputed by counsel for the defendant that
when the plaintiff, riding on a motorcycle, was going
toward the western part of Calle Padre Faura, passing
along the west side thereof at a speed of ten to twelve
miles an hour, upon crossing Taft Avenue and when he
was ten feet from the southwestern intersection of said
streets, the General Hospital ambulance, upon reaching
said avenue, instead of turning toward the south, after
passing the center thereof, so that it would be on the left
side of said avenue, as is prescribed by the ordinance
and the Motor Vehicle Act, turned suddenly and
unexpectedly and long before reaching the center of the
street, into the right side of Taft Avenue, without having
sounded any whistle or horn, by which movement it struck
the plaintiff, who was already six feet from the
southwestern point or from the post place there.
By reason of the resulting collision, the plaintiff was so
severely injured that, according to Dr. Saleeby, who
examined him on the very same day that he was taken to
the General Hospital, he was suffering from a depression
in the left parietal region, a would in the same place and
in the back part of his head, while blood issued from his
nose and he was entirely unconscious.
The marks revealed that he had one or more fractures of
the skull and that the grey matter and brain was had
suffered material injury. At ten o'clock of the night in
question, which was the time set for performing the
operation, his pulse was so weak and so irregular that, in
his opinion, there was little hope that he would live. His
right leg was broken in such a way that the fracture
extended to the outer skin in such manner that it might be
regarded as double and the would be exposed to
infection, for which reason it was of the most serious
nature.
At another examination six days before the day of the
trial, Dr. Saleeby noticed that the plaintiff's leg showed a
contraction of an inch and a half and a curvature that
made his leg very weak and painful at the point of the
fracture. Examination of his head revealed a notable
readjustment of the functions of the brain and nerves. The
patient apparently was slightly deaf, had a light weakness
in his eyes and in his mental condition. This latter
weakness was always noticed when the plaintiff had to do
any difficult mental labor, especially when he attempted to
use his money for mathematical calculations.
According to the various merchants who testified as
witnesses, the plaintiff's mental and physical condition
prior to the accident was excellent, and that after having
received the injuries that have been discussed, his
physical condition had undergone a noticeable
depreciation, for he had lost the agility, energy, and ability
 that he had constantly displayed before the accident as
one of the best constructors of wooden buildings and he
could not now earn even a half of the income that he had
secured for his work because he had lost 50 per cent of
his efficiency. As a contractor, he could no longer, as he
had before done, climb up ladders and scaffoldings to
reach the highest parts of the building.
As a consequence of the loss the plaintiff suffered in the
efficiency of his work as a contractor, he had to dissolved
the partnership he had formed with the engineer. Wilson,
because he was incapacitated from making mathematical
calculations on account of the condition of his leg and of
his mental faculties, and he had to give up a contract he
had for the construction of the Uy Chaco building."
We may say at the outset that we are in full accord with the trial
court to the effect that the collision between the plaintiff's
motorcycle and the ambulance of the General Hospital was due
solely to the negligence of the chauffeur.
The two items which constitute a part of the P14,741 and which
are drawn in question by the plaintiff are (a) P5,000, the award
awarded for permanent injuries, and (b) the P2,666, the amount
allowed for the loss of wages during the time the plaintiff was
incapacitated from pursuing his occupation. We find nothing in
the record which would justify us in increasing the amount of the
first. As to the second, the record shows, and the trial court so
found, that the plaintiff's services as a contractor were worth
P1,000 per month. The court, however, limited the time to two
months and twenty-one days, which the plaintiff was actually
confined in the hospital. In this we think there was error, because
it was clearly established that the plaintiff was wholly
incapacitated for a period of six months. The mere fact that he
remained in the hospital only two months and twenty-one days
while the remainder of the six months was spent in his home,
would not prevent recovery for the whole time. We, therefore, find
that the amount of damages sustained by the plaintiff, without any
fault on his part, is P18,075.
As the negligence which caused the collision is a tort committed
by an agent or employee of the Government, the inquiry at once
arises whether the Government is legally-liable for the damages
resulting therefrom.
Act No. 2457, effective February 3, 1915, reads:
An Act authorizing E. Merritt to bring suit against the
Government of the Philippine Islands and authorizing the
Attorney-General of said Islands to appear in said suit.
Whereas a claim has been filed against the Government
of the Philippine Islands by Mr. E. Merritt, of Manila, for
damages resulting from a collision between his
motorcycle and the ambulance of the General Hospital on
March twenty-fifth, nineteen hundred and thirteen;
Whereas it is not known who is responsible for the
accident nor is it possible to determine the amount of
damages, if any, to which the claimant is entitled; and
Whereas the Director of Public Works and the Attorney-
General recommended that an Act be passed by the
Legislature authorizing Mr. E. Merritt to bring suit in the
courts against the Government, in order that said
questions may be decided: Now, therefore,
By authority of the United States, be it enacted by the
Philippine Legislature, that:
SECTION 1. E. Merritt is hereby authorized to bring suit in
the Court of First Instance of the city of Manila against the
Government of the Philippine Islands in order to fix the
responsibility for the collision between his motorcycle and
 the ambulance of the General Hospital, and to determine
the amount of the damages, if any, to which Mr. E. Merritt
is entitled on account of said collision, and the Attorney-
General of the Philippine Islands is hereby authorized and
directed to appear at the trial on the behalf of the
Government of said Islands, to defendant said
Government at the same.
SEC. 2. This Act shall take effect on its passage.
Enacted, February 3, 1915.
Did the defendant, in enacting the above quoted Act, simply
waive its immunity from suit or did it also concede its liability to
the plaintiff? If only the former, then it cannot be held that the Act
created any new cause of action in favor of the plaintiff or
extended the defendant's liability to any case not previously
recognized.
All admit that the Insular Government (the defendant) cannot be
sued by an individual without its consent. It is also admitted that
the instant case is one against the Government. As the consent
of the Government to be sued by the plaintiff was entirely
voluntary on its part, it is our duty to look carefully into the terms
of the consent, and render judgment accordingly.
The plaintiff was authorized to bring this action against the
Government "in order to fix the responsibility for the collision
between his motorcycle and the ambulance of the General
Hospital and to determine the amount of the damages, if any, to
which Mr. E. Merritt is entitled on account of said collision, . . . ."
These were the two questions submitted to the court for
determination. The Act was passed "in order that said questions
may be decided." We have "decided" that the accident was due
solely to the negligence of the chauffeur, who was at the time an
employee of the defendant, and we have also fixed the amount of
damages sustained by the plaintiff as a result of the collision.
Does the Act authorize us to hold that the Government is legally
liable for that amount? If not, we must look elsewhere for such
authority, if it exists.
The Government of the Philippine Islands having been "modeled
after the Federal and State Governments in the United States,"
we may look to the decisions of the high courts of that country for
aid in determining the purpose and scope of Act No. 2457.
In the United States the rule that the state is not liable for the torts
committed by its officers or agents whom it employs, except when
expressly made so by legislative enactment, is well settled. "The
Government," says Justice Story, "does not undertake to
guarantee to any person the fidelity of the officers or agents
whom it employs, since that would involve it in all its operations in
endless embarrassments, difficulties and losses, which would be
subversive of the public interest." (Claussen vs. City of Luverne,
103 Minn., 491, citing U. S. vs. Kirkpatrick, 9 Wheat, 720; 6 L.
Ed., 199; and Beers vs. States, 20 How., 527; 15 L. Ed., 991.)
In the case of Melvin vs. State (121 Cal., 16), the plaintiff sought
to recover damages from the state for personal injuries received
on account of the negligence of the state officers at the state fair,
a state institution created by the legislature for the purpose of
improving agricultural and kindred industries; to disseminate
information calculated to educate and benefit the industrial
classes; and to advance by such means the material interests of
the state, being objects similar to those sought by the public
school system. In passing upon the question of the state's liability
for the negligent acts of its officers or agents, the court said:
No claim arises against any government is favor of an
individual, by reason of the misfeasance, laches, or
unauthorized exercise of powers by its officers or agents.
(Citing Gibbons vs. U. S., 8 Wall., 269; Clodfelter vs.
State, 86 N. C., 51, 53; 41 Am. Rep., 440; Chapman vs.
State, 104 Cal., 690; 43 Am. St. Rep., 158; Green vs.
 State, 73 Cal., 29; Bourn vs. Hart, 93 Cal., 321; 27 Am.
St. Rep., 203; Story on Agency, sec. 319.)
As to the scope of legislative enactments permitting individuals to
sue the state where the cause of action arises out of either fort or
contract, the rule is stated in 36 Cyc., 915, thus:
By consenting to be sued a state simply waives its
immunity from suit. It does not thereby concede its liability
to plaintiff, or create any cause of action in his favor, or
extend its liability to any cause not previously recognized.
It merely gives a remedy to enforce a preexisting liability
and submits itself to the jurisdiction of the court, subject to
its right to interpose any lawful defense.
In Apfelbacher vs. State (152 N. W., 144, advanced sheets),
decided April 16, 1915, the Act of 1913, which authorized the
bringing of this suit, read:
SECTION 1. Authority is hereby given to George
In Denning vs. State (123 Cal., 316), the provisions of the Act of
Apfelbacher, of the town of Summit, Waukesha County,
1893, relied upon and considered, are as follows:
Wisconsin, to bring suit in such court or courts and in
such form or forms as he may be advised for the purpose
of settling and determining all controversies which he may
now have with the State of Wisconsin, or its duly
authorized officers and agents, relative to the mill property
of said George Apfelbacher, the fish hatchery of the State
of Wisconsin on the Bark River, and the mill property of
Evan Humphrey at the lower end of Nagawicka Lake, and
relative to the use of the waters of said Bark River and
Nagawicka Lake, all in the county of Waukesha,
Wisconsin.
And the court said:
In determining the scope of this act, the court said:
Plaintiff claims that by the enactment of this law the
legislature admitted liability on the part of the state for the
acts of its officers, and that the suit now stands just as it
would stand between private parties. It is difficult to see
how the act does, or was intended to do, more than
remove the state's immunity from suit. It simply gives
authority to commence suit for the purpose of settling
plaintiff's controversies with the estate. Nowhere in the act
is there a whisper or suggestion that the court or courts in
the disposition of the suit shall depart from well
established principles of law, or that the amount of
damages is the only question to be settled. The act
opened the door of the court to the plaintiff. It did not pass
upon the question of liability, but left the suit just where it
would be in the absence of the state's immunity from suit.
If the Legislature had intended to change the rule that
obtained in this state so long and to declare liability on the
part of the state, it would not have left so important a
matter to mere inference, but would have done so in
express terms. (Murdock Grate Co. vs. Commonwealth,
152 Mass., 28; 24 N.E., 854; 8 L. R. A., 399.)
All persons who have, or shall hereafter have, claims on
contract or for negligence against the state not allowed by
the state board of examiners, are hereby authorized, on
the terms and conditions herein contained, to bring suit
thereon against the state in any of the courts of this state
of competent jurisdiction, and prosecute the same to final
judgment. The rules of practice in civil cases shall apply to
such suits, except as herein otherwise provided.
This statute has been considered by this court in at least
two cases, arising under different facts, and in both it was
held that said statute did not create any liability or cause
of action against the state where none existed before, but
 merely gave an additional remedy to enforce such liability
as would have existed if the statute had not been
enacted. (Chapman vs. State, 104 Cal., 690; 43 Am. St.
Rep., 158; Melvin vs. State, 121 Cal., 16.)
A statute of Massachusetts enacted in 1887 gave to the superior
court "jurisdiction of all claims against the commonwealth,
whether at law or in equity," with an exception not necessary to
be here mentioned. In construing this statute the court,
in Murdock Grate Co. vs. Commonwealth (152 Mass., 28), said:
The statute we are discussing disclose no intention to
create against the state a new and heretofore
unrecognized class of liabilities, but only an intention to
provide a judicial tribunal where well recognized existing
liabilities can be adjudicated.
In Sipple vs. State (99 N. Y., 284), where the board of the canal
claims had, by the terms of the statute of New York, jurisdiction of
claims for damages for injuries in the management of the canals
such as the plaintiff had sustained, Chief Justice Ruger remarks:
"It must be conceded that the state can be made liable for injuries
arising from the negligence of its agents or servants, only by force
of some positive statute assuming such liability."
It being quite clear that Act No. 2457 does not operate to extend
the Government's liability to any cause not previously recognized,
we will now examine the substantive law touching the defendant's
liability for the negligent acts of its officers, agents, and
employees. Paragraph 5 of article 1903 of the Civil Code reads:
The state is liable in this sense when it acts through a
special agent, but not when the damage should have
been caused by the official to whom properly it pertained
to do the act performed, in which case the provisions of
the preceding article shall be applicable.
The supreme court of Spain in defining the scope of this
paragraph said:
That the obligation to indemnify for damages which a third
person causes to another by his fault or negligence is
based, as is evidenced by the same Law 3, Title 15,
Partida 7, on that the person obligated, by his own fault or
negligence, takes part in the act or omission of the third
party who caused the damage. It follows therefrom that
the state, by virtue of such provisions of law, is not
responsible for the damages suffered by private
individuals in consequence of acts performed by its
employees in the discharge of the functions pertaining to
their office, because neither fault nor even negligence can
be presumed on the part of the state in the organization of
branches of public service and in the appointment of its
agents; on the contrary, we must presuppose all foresight
humanly possible on its part in order that each branch of
service serves the general weal an that of private persons
interested in its operation. Between these latter and the
state, therefore, no relations of a private nature governed
by the civil law can arise except in a case where the state
acts as a judicial person capable of acquiring rights and
contracting obligations. (Supreme Court of Spain, January
7, 1898; 83 Jur. Civ., 24.)
That the Civil Code in chapter 2, title 16, book 4, regulates
the obligations which arise out of fault or negligence; and
whereas in the first article thereof. No. 1902, where the
general principle is laid down that where a person who by
an act or omission causes damage to another through
fault or negligence, shall be obliged to repair the damage
so done, reference is made to acts or omissions of the
persons who directly or indirectly cause the damage, the
following articles refers to this persons and imposes an
identical obligation upon those who maintain fixed
relations of authority and superiority over the authors of
the damage, because the law presumes that in
consequence of such relations the evil caused by their
own fault or negligence is imputable to them. This legal
presumption gives way to proof, however, because, as
held in the last paragraph of article 1903, responsibility for
acts of third persons ceases when the persons mentioned
in said article prove that they employed all the diligence of
a good father of a family to avoid the damage, and among
these persons, called upon to answer in a direct and not a
subsidiary manner, are found, in addition to the mother or
the father in a proper case, guardians and owners or
directors of an establishment or enterprise, the state, but
not always, except when it acts through the agency of a
special agent, doubtless because and only in this case,
the fault or negligence, which is the original basis of this
kind of objections, must be presumed to lie with the state.
That although in some cases the state might by virtue of
the general principle set forth in article 1902 respond for
all the damage that is occasioned to private parties by
orders or resolutions which by fault or negligence are
made by branches of the central administration acting in
the name and representation of the state itself and as an
external expression of its sovereignty in the exercise of its
executive powers, yet said article is not applicable in the
case of damages said to have been occasioned to the
petitioners by an executive official, acting in the exercise
of his powers, in proceedings to enforce the collections of
certain property taxes owing by the owner of the property
which they hold in sublease.
That the responsibility of the state is limited by article
1903 to the case wherein it acts through a special
agent (and a special agent, in the sense in which these
words are employed, is one who receives a definite and
fixed order or commission, foreign to the exercise of the
duties of his office if he is a special official) so that in
representation of the state and being bound to act as an
agent thereof, he executes the trust confided to him. This
concept does not apply to any executive agent who is an
employee of the acting administration and who on his own
responsibility performs the functions which are inherent in
and naturally pertain to his office and which are regulated
by law and the regulations." (Supreme Court of Spain,
May 18, 1904; 98 Jur. Civ., 389, 390.)
That according to paragraph 5 of article 1903 of the Civil
Code and the principle laid down in a decision, among
others, of the 18th of May, 1904, in a damage case, the
responsibility of the state is limited to that which it
contracts through a special agent, duly empowered by
a definite order or commission to perform some act or
charged with some definite purpose which gives rise to
the claim, and not where the claim is based on acts or
omissions imputable to a public official charged with some
administrative or technical office who can be held to the
proper responsibility in the manner laid down by the law of
civil responsibility. Consequently, the trial court in not so
deciding and in sentencing the said entity to the payment
of damages, caused by an official of the second class
referred to, has by erroneous interpretation infringed the
provisions of articles 1902 and 1903 of the Civil Code.
(Supreme Court of Spain, July 30, 1911; 122 Jur. Civ.,
146.)
It is, therefore, evidence that the State (the Government of the
Philippine Islands) is only liable, according to the above quoted
decisions of the Supreme Court of Spain, for the acts of its
agents, officers and employees when they act as special agents
within the meaning of paragraph 5 of article 1903, supra, and that
the chauffeur of the ambulance of the General Hospital was not
such an agent.
For the foregoing reasons, the judgment appealed from must be
reversed, without costs in this instance. Whether the Government
intends to make itself legally liable for the amount of damages
above set forth, which the plaintiff has sustained by reason of the
negligent acts of one of its employees, by legislative enactment
and by appropriating sufficient funds therefor, we are not called
upon to determine. This matter rests solely with the Legislature
and not with the courts.
G.R. No. L-52179             April 8, 1991
MUNICIPALITY OF SAN FERNANDO, LA UNION, petitioner
vs.
HON. JUDGE ROMEO N. FIRME, JUANA RIMANDO-BANIÑA,
IAUREANO BANIÑA, JR., SOR MARIETA BANIÑA, MONTANO
BANIÑA, ORJA BANIÑA, AND LYDIA R.
BANIÑA, respondents.
Mauro C. Cabading, Jr. for petitioner.
Simeon G. Hipol for private respondent.
MEDIALDEA, J.:
This is a petition for certiorari with prayer for the issuance of a writ
of preliminary mandatory injunction seeking the nullification or
modification of the proceedings and the orders issued by the
respondent Judge Romeo N. Firme, in his capacity as the
presiding judge of the Court of First Instance of La Union, Second
Judicial District, Branch IV, Bauang, La Union in Civil Case No.
107-BG, entitled "Juana Rimando Baniña, et al. vs. Macario
Nieveras, et al." dated November 4, 1975; July 13, 1976; August
23,1976; February 23, 1977; March 16, 1977; July 26, 1979;
September 7, 1979; November 7, 1979 and December 3, 1979
and the decision dated October 10, 1979 ordering defendants
Municipality of San Fernando, La Union and Alfredo Bislig to pay,
jointly and severally, the plaintiffs for funeral expenses, actual
damages consisting of the loss of earning capacity of the
deceased, attorney's fees and costs of suit and dismissing the
complaint against the Estate of Macario Nieveras and Bernardo
Balagot.
The antecedent facts are as follows:
Petitioner Municipality of San Fernando, La Union is a municipal
corporation existing under and in accordance with the laws of the
Republic of the Philippines. Respondent Honorable Judge Romeo
N. Firme is impleaded in his official capacity as the presiding
judge of the Court of First Instance of La Union, Branch IV,
Bauang, La Union. While private respondents Juana Rimando-
Baniña, Laureano Baniña, Jr., Sor Marietta Baniña, Montano
Baniña, Orja Baniña and Lydia R. Baniña are heirs of the
deceased Laureano Baniña Sr. and plaintiffs in Civil Case No.
107-Bg before the aforesaid court.
At about 7 o'clock in the morning of December 16, 1965, a
collision occurred involving a passenger jeepney driven by
Bernardo Balagot and owned by the Estate of Macario Nieveras,
a gravel and sand truck driven by Jose Manandeg and owned by
Tanquilino Velasquez and a dump truck of the Municipality of San
Fernando, La Union and driven by Alfredo Bislig. Due to the
impact, several passengers of the jeepney including Laureano
Baniña Sr. died as a result of the injuries they sustained and four
(4) others suffered varying degrees of physical injuries.
On December 11, 1966, the private respondents instituted a
compliant for damages against the Estate of Macario Nieveras
and Bernardo Balagot, owner and driver, respectively, of the
passenger jeepney, which was docketed Civil Case No. 2183 in
the Court of First Instance of La Union, Branch I, San Fernando,
La Union. However, the aforesaid defendants filed a Third Party
Complaint against the petitioner and the driver of a dump truck of
petitioner.
Thereafter, the case was subsequently transferred to Branch IV,
presided over by respondent judge and was subsequently
docketed as Civil Case No. 107-Bg. By virtue of a court order
dated May 7, 1975, the private respondents amended the
complaint wherein the petitioner and its regular employee, Alfredo
Bislig were impleaded for the first time as defendants. Petitioner
filed its answer and raised affirmative defenses such as lack of
cause of action, non-suability of the State, prescription of cause
of action and the negligence of the owner and driver of the
passenger jeepney as the proximate cause of the collision.
In the course of the proceedings, the respondent judge issued the
following questioned orders, to wit:
(1) Order dated November 4, 1975 dismissing the cross-
claim against Bernardo Balagot;
(2) Order dated July 13, 1976 admitting the Amended
Answer of the Municipality of San Fernando, La Union
and Bislig and setting the hearing on the affirmative
defenses only with respect to the supposed lack of
jurisdiction;
(3) Order dated August 23, 1976 deferring there
resolution of the grounds for the Motion to Dismiss until
the trial;
(4) Order dated February 23, 1977 denying the motion for
reconsideration of the order of July 13, 1976 filed by the
Municipality and Bislig for having been filed out of time;
(5) Order dated March 16, 1977 reiterating the denial of
the motion for reconsideration of the order of July 13,
1976;
(6) Order dated July 26, 1979 declaring the case deemed
submitted for decision it appearing that parties have not
yet submitted their respective memoranda despite the
court's direction; and
(7) Order dated September 7, 1979 denying the
petitioner's motion for reconsideration and/or order to
recall prosecution witnesses for cross examination.
On October 10, 1979 the trial court rendered a decision, the
dispositive portion is hereunder quoted as follows:
IN VIEW OF ALL OF (sic) THE FOREGOING, judgment is
hereby rendered for the plaintiffs, and defendants
Municipality of San Fernando, La Union and Alfredo Bislig
are ordered to pay jointly and severally, plaintiffs Juana
Rimando-Baniña, Mrs. Priscilla B. Surell, Laureano
Baniña Jr., Sor Marietta Baniña, Mrs. Fe B. Soriano,
Montano Baniña, Orja Baniña and Lydia B. Baniña the
sums of P1,500.00 as funeral expenses and P24,744.24
as the lost expected earnings of the late Laureano Baniña
Sr., P30,000.00 as moral damages, and P2,500.00 as
attorney's fees. Costs against said defendants.
The Complaint is dismissed as to defendants Estate of
Macario Nieveras and Bernardo Balagot.
SO ORDERED. (Rollo, p. 30)
Petitioner filed a motion for reconsideration and for a new trial
without prejudice to another motion which was then pending.
However, respondent judge issued another order dated
November 7, 1979 denying the motion for reconsideration of the
order of September 7, 1979 for having been filed out of time.
Finally, the respondent judge issued an order dated December 3,
1979 providing that if defendants municipality and Bislig further
wish to pursue the matter disposed of in the order of July 26,
1979, such should be elevated to a higher court in accordance
with the Rules of Court. Hence, this petition.
Petitioner maintains that the respondent judge committed grave
abuse of discretion amounting to excess of jurisdiction in issuing
the aforesaid orders and in rendering a decision. Furthermore,
petitioner asserts that while appeal of the decision maybe
available, the same is not the speedy and adequate remedy in
the ordinary course of law.
On the other hand, private respondents controvert the position of
the petitioner and allege that the petition is devoid of merit, utterly
lacking the good faith which is indispensable in a petition
for certiorari and prohibition. (Rollo, p. 42.) In addition, the private
respondents stress that petitioner has not considered that every
court, including respondent court, has the inherent power to
amend and control its process and orders so as to make them
conformable to law and justice. (Rollo, p. 43.)
The controversy boils down to the main issue of whether or not
the respondent court committed grave abuse of discretion when it
deferred and failed to resolve the defense of non-suability of the
State amounting to lack of jurisdiction in a motion to dismiss.
In the case at bar, the respondent judge deferred the resolution of
the defense of non-suability of the State amounting to lack of
jurisdiction until trial. However, said respondent judge failed to
resolve such defense, proceeded with the trial and thereafter
rendered a decision against the municipality and its driver.
The respondent judge did not commit grave abuse of discretion
when in the exercise of its judgment it arbitrarily failed to resolve
the vital issue of non-suability of the State in the guise of the
municipality. However, said judge acted in excess of his
jurisdiction when in his decision dated October 10, 1979 he held
the municipality liable for the quasi-delict committed by its regular
employee.
The doctrine of non-suability of the State is expressly provided for
in Article XVI, Section 3 of the Constitution, to wit: "the State may
not be sued without its consent."
Stated in simple parlance, the general rule is that the State may
not be sued except when it gives consent to be sued. Consent
takes the form of express or implied consent.
Express consent may be embodied in a general law or a special
law. The standing consent of the State to be sued in case of
money claims involving liability arising from contracts is found in
Act No. 3083. A special law may be passed to enable a person to
sue the government for an alleged quasi-delict, as in Merritt v.
Government of the Philippine Islands (34 Phil 311). (see United
States of America v. Guinto, G.R. No. 76607, February 26, 1990,
182 SCRA 644, 654.)
Consent is implied when the government enters into business
contracts, thereby descending to the level of the other contracting
party, and also when the State files a complaint, thus opening
itself to a counterclaim. (Ibid)
Municipal corporations, for example, like provinces and cities, are
agencies of the State when they are engaged in governmental
functions and therefore should enjoy the sovereign immunity from
suit. Nevertheless, they are subject to suit even in the
performance of such functions because their charter provided that
they can sue and be sued. (Cruz, Philippine Political Law, 1987
Edition, p. 39)
A distinction should first be made between suability and liability.
"Suability depends on the consent of the state to be sued, liability
on the applicable law and the established facts. The circumstance
that a state is suable does not necessarily mean that it is liable;
on the other hand, it can never be held liable if it does not first
consent to be sued. Liability is not conceded by the mere fact that
the state has allowed itself to be sued. When the state does
waive its sovereign immunity, it is only giving the plaintiff the
chance to prove, if it can, that the defendant is liable." (United
States of America vs. Guinto, supra, p. 659-660)
Anent the issue of whether or not the municipality is liable for the
torts committed by its employee, the test of liability of the
municipality depends on whether or not the driver, acting in behalf
of the municipality, is performing governmental or proprietary
functions. As emphasized in the case of Torio vs. Fontanilla (G.
R. No. L-29993, October 23, 1978. 85 SCRA 599, 606), the
distinction of powers becomes important for purposes of
determining the liability of the municipality for the acts of its
agents which result in an injury to third persons.
Another statement of the test is given in City of Kokomo vs. Loy,
decided by the Supreme Court of Indiana in 1916, thus:
Municipal corporations exist in a dual capacity, and their
functions are twofold. In one they exercise the right
springing from sovereignty, and while in the performance
of the duties pertaining thereto, their acts are political and
governmental. Their officers and agents in such capacity,
though elected or appointed by them, are nevertheless
public functionaries performing a public service, and as
such they are officers, agents, and servants of the state.
In the other capacity the municipalities exercise a private,
proprietary or corporate right, arising from their existence
as legal persons and not as public agencies. Their officers
and agents in the performance of such functions act in
behalf of the municipalities in their corporate or individual
capacity, and not for the state or sovereign power." (112
N.E., 994-995) (Ibid, pp. 605-606.)
It has already been remarked that municipal corporations are
suable because their charters grant them the competence to sue
and be sued. Nevertheless, they are generally not liable for torts
committed by them in the discharge of governmental functions
and can be held answerable only if it can be shown that they
were acting in a proprietary capacity. In permitting such entities to
be sued, the State merely gives the claimant the right to show
that the defendant was not acting in its governmental capacity
when the injury was committed or that the case comes under the
exceptions recognized by law. Failing this, the claimant cannot
recover. (Cruz, supra, p. 44.)
In the case at bar, the driver of the dump truck of the municipality
insists that "he was on his way to the Naguilian river to get a load
of sand and gravel for the repair of San Fernando's municipal
streets." (Rollo, p. 29.)
In the absence of any evidence to the contrary, the regularity of
the performance of official duty is presumed pursuant to Section
3(m) of Rule 131 of the Revised Rules of Court. Hence, We rule
that the driver of the dump truck was performing duties or tasks
pertaining to his office.
We already stressed in the case of Palafox, et. al. vs. Province of
Ilocos Norte, the District Engineer, and the Provincial Treasurer
(102 Phil 1186) that "the construction or maintenance of roads in
which the truck and the driver worked at the time of the accident
are admittedly governmental activities."
After a careful examination of existing laws and jurisprudence,
We arrive at the conclusion that the municipality cannot be held
liable for the torts committed by its regular employee, who was
then engaged in the discharge of governmental functions. Hence,
the death of the passenger –– tragic and deplorable though it
may be –– imposed on the municipality no duty to pay monetary
compensation.
All premises considered, the Court is convinced that the
respondent judge's dereliction in failing to resolve the issue of
non-suability did not amount to grave abuse of discretion. But
said judge exceeded his jurisdiction when it ruled on the issue of
liability.
ACCORDINGLY, the petition is GRANTED and the decision of Pursuant to Section 2282 of the Revised Administrative
the respondent court is hereby modified, absolving the petitioner Code, the Municipal Council of Malasiqui, Pangasinan,
municipality of any liability in favor of private respondents. resolved to celebrate the town fiesta and created a
"Town Fiesta Executive Committee" to undertake,
SO ORDERED manage and supervise the festivities. The Executive
Committee created a sub-committee on "Entertainment
[G.R. No. L-29993. October 23, 1978.] and Stage", which constructed two stages, one for the
"zarzuela" and another for "cancionan." During the
LAUDENCIO TORIO, GUILLERMO EVANGELISTA, program people went up the "zarzuela" stage and before
MANUEL DE GUZMAN, ALFONSO R. MAGSANOC, the play was over the stage collapsed, pinning
JESUS MACARANAS, MAXIMO MANANGAN, FIDEL underneath one of the performers, resulting in his death.
MONTEMAYOR, MELCHOR VIRAY, RAMON TULAGAN,
all Members of the Municipal Council of Malasiqui in The heirs of the deceased sued the municipality and the
1959, Malasiqui, Pangasinan, Petitioners, v. councilors for damages. The municipality invoked inter
ROSALINA, ANGELINA, LEONARDO, EDUARDO, alia the principal defense that the holding of a town fiesta
ARTEMIO, ANGELITA, ANITA, ERNESTO, NORMA, was an exercise of its governmental function from which
VIRGINIA, REMEDIOS and ROBERTO, all surnamed no liability can arise to answer for the negligence of any
FONTANILLA, and THE HONORABLE COURT OF of its agents. The councilors maintained that they merely
APPEALS, Respondents. acted as agents of the municipality in carrying out the
municipal ordinance.
[G.R. No. L-30183. October 23, 1978.]
The trial court dismissed the complaint of a finding that
MUNICIPALITY OF MALASIQUI, Petitioner, v. the petitioners exercised due diligence and care of a good
ROSALINA, ANGELINA, LEONARDO, EDUARDO, father of a family in selecting a competent man to
ARTEMIO, ANGELITA, ANITA, ERNESTO, NORMA, construct the stage and if it collapsed it was due to forces
VIRGINIA, REMEDIOS and ROBERTO, all surnamed beyond the control of the committee on entertainment
FONTANILLA, and the Honorable COURT OF and stage.
APPEALS, Respondents.
The Court of Appeals reversed the decision stating that
Julian M. Armas, Assistant Provincial Fiscal, petitioners were guilty of negligence when they failed to
for Petitioners. take the necessary measures to prevent the mounting of
onlookers on the stage resulting in the collapse thereof.
Isidoro L. Padilla for Respondents.
The Supreme Court held that the holding of a town fiesta
SYNOPSIS though not for profit is a proprietary function for which a
municipality is liable for damages to third persons ex
contractu or ex delicto; that under the principle of
respondeat superior the principal is liable for the
negligence of its agents acting within the scope of their
assigned tasks; and that the municipal councilors have a
personally distinct and separate from the municipality,
hence, as a rule they are not co-responsible in an action
for damages for tort or negligence unless they acted in
bad faith or have directly participated in the commission
of the wrongful act.
Appealed decision affirmed with modification.
SYLLABUS
1. POLITICAL LAW; MUNICIPAL CORPORATIONS;
MUNICIPALITIES MAY SUE AND BE SUED. — Under
Philippine laws municipalities are political bodies
corporate and as such are endowed with the faculties of
municipal corporations to be exercised by and through
their respective municipal governments in conformity
with law, and in their proper corporate name, they may
inter alia, sue and be sued, and contract and be
contracted with.
2. ID.; ID.; dual CHARACTER OF MUNICIPALITIES. —
Municipal corporations exist in a dual capacity and their
powers are twofold in character — public, governmental
or political on the one hand, corporate private, or
proprietary on the other hand. Governmental powers are
those exercised by the corporation in administering the
powers of the state and promoting the public welfare and
they include the legislative, judicial, public, and political.
Municipal powers on the other hand are exercised for the
special benefit and advantage of the community and
include those which are ministerial, private and
corporate.
3. ID.; ID.; ID.; TEST; RULE IN DETERMINING NATURE
OF FUNCTION PERFORMED. — A municipal corporation
proper has a public character as regards the state at
large insofar as it is its agent in government, and private
insofar as it is to promote local necessities and
conveniences for its own community (McQuillin on
Municipal Corporations). Stated differently, "Municipal
corporations exist in a dual capacity and their functions
are twofold. In one way they exercise the right springing
from sovereignty, and while in the performance of the
duties pertaining thereto, their acts are political and
governmental. Their officers and agents in such capacity,
though elected or appointed by them, are nevertheless
public functionaries performing a public service, and as
such they are officers, agents, and servants of the state.
In the other capacity the municipalities exercise a
private, proprietary or corporate right, arising from their
existence as legal persons and not as public agencies.
Their officers and agents in the performance of such
functions act in behalf of the municipalities in their
corporate or individual capacity, and not for the state or
sovereign power." (City of Kokomo v. Boy, 112 NE 994).
4. ID.; ID.; ID.; LIABILITY; RULE ON LIABILITY OF
MUNICIPAL CORPORATIONS. — If the injury is caused in
the course of the performance of a governmental
function or duty no recovery, as a rule, can be had from
the municipality unless there is an existing statute on the
matter, nor from its officers, so long as they performed
their duties honestly and in good faith or that they did
not act wantonly and maliciously. With respect to
proprietary functions, the settled rule is that a municipal
corporation can be held liable to third persons ex
contractu or ex delicto. The rule of law is a general one,
that the superior or employer must answer civilly for the
negligence or want of skill of his agent or servant in the
course or line of his employment, by which another, who
is free from contributory fault, is injured. Municipal
corporations under the conditions herein stated, fall
within the operation of this rule of law, and are liable,
accordingly, to civil actions for damages when the
requisite elements of liability coexist (Dillion on Municipal
Corporations). There can be no hard and fast rule for
purposes of determining the true nature of an
undertaking or function of a municipality; the
surrounding circumstances of a particular case are to be
considered and will be decisive. The basic element,
however beneficial to the public the undertaking may be,
is that it is governmental in essence, otherwise the
function becomes private or proprietary in character.
5. ID.; ID.; ID.; SECTION 2282, REVISED
ADMINISTRATIVE CODE MERELY AUTHORITATIVE;
HOLDING FIESTAS, PROPRIETARY IN CHARACTER. —
Section 2282 of the Revised Administrative Code simply
gives authority to the municipality to celebrate a yearly
fiesta but it does not impose upon it a duty to observe
one. Holding a fiesta even if the purpose is to
commemorate a religious or historical event of the town
is in essence an act for the special benefit of the
community and not for the general welfare of the public
performed in pursuance of a policy of the state. It is an
exercise of a private proprietary function. The mere fact
that the celebration was not to secure profit or gain but
merely to provide entertainment to the town inhabitants
is not a conclusive test that the same is governmental in
character.
6. ID.; ID.; RESPONDEAT SUPERIOR; MUNICIPALITY
LIABLE FOR DAMAGES COMMITTED BY ITS AGENTS. —
The municipality cannot evade responsibility for the
death of a stage performer arising from faulty
construction of the stage by the chairman of the
entertainment and stage committee appointed by the
municipal council, in connection with a town fiesta,
because under the doctrine of respondeat superior, a
municipality is responsible or liable for the negligence of
its agent acting within his assigned tasks.
7. ID.; ID.; ID.; LIABILITY RESTS ON NEGLIGENCE. —
The failure of the municipality or its agents despite the
necessary means within its command, to prevent the
onlookers from mounting on the stage resulting in its
collapse and death of one of the performers constitutes
negligence from which liability arises. Liability rests on
negligence which is "the want of such care as a person of
ordinary prudence would exercise under the
circumstances of the case."cralaw virtua1aw library
8. ID.; ID.; ID.; LIABILITY OF MUNICIPALITY TO
"INVITEE." — Where a municipality, in connection with
the celebration of a town fiesta, accepted the donation of
the services of an "extravaganza troupe" and constructed
precisely a "zarzuela stage" for the purpose, the
participants in the stage show had the right to expect
that the municipality would build or put up a stage or
platform strong enough to sustain the weight or burden
of the performance and take the necessary measures to
insure the personal safety of the participants.
9. ID.; ID.; ID.; ARTICLE 27 OF THE NEW CIVIL CODE,
NOT APPLICABLE. — Article 27 of the New Civil Code
which allows action for damages against a public servant
or employee who refuses or neglect without just cause to
perform his duties covers a case of non-feasance or non-
performance by a public officer of his official duty; it does
not apply to a case of negligence or misfeasance in
carrying out an official duty.
10. ID.; ID.; ID.; MUNICIPAL COUNCILORS NOT LIABLE
FOR DAMAGES ARISING FROM THE WRONGFUL ACT OF
THE MUNICIPAL OFFICIALS UNLESS THEY PARTICIPATED
IN THE COMMISSION THEREOF. — The celebration of a
town fiesta by a municipality is not a governmental
function. The legal consequence is that the municipality
stands on the same footing as an ordinary private
corporation with the municipal council acting as its board
of directors. It is an elementary principle that a
corporation has a personality separate and distinct from
its officers, directors, or persons composing it and the
latter are not as a rule co-responsible in an action for
damages for tort or negligence (culpa acquiliana)
committed by the corporation’s employees or agents
unless there is a showing of bad faith or gross or wanton
negligence on their part.
DECISION
MUÑOZ PALMA, J.:
These Petitions for review present the issue of whether or
not the celebration of a town fiesta authorized by a
municipal council under Sec. 2282 of the Municipal Law
as embodied in the Revised Administrative Code is a
governmental or a corporate or proprietary function of
the municipality.
A resolution of that issue will lead to another, viz: the
civil liability for damages of the Municipality of Malasiqui,
and the members of the Municipal Council of Malasiqui,
province of Pangasinan, for a death which occurred
during the celebration of the town fiesta on January 22,
1959, and which was attributed to the negligence of the
municipality and its council members. cralawnad
The following facts are not in dispute: chanrob1es virtual 1aw library
On October 21, 1958, the Municipal Council of Malasiqui,
Pangasinan, passed Resolution No. 159 whereby "it
resolved to manage the 1959 Malasiqui town fiesta
celebration on January 21, 22, and 23, 1959." Resolution
No. 182 was also passed creating the "1959 Malasiqui
Town Fiesta Executive Committee" which in turn
organized a subcommittee on entertainment and stage,
with Jose Macaraeg as Chairman. The council
appropriated the amount of P100.00 for the construction
of 2 stages, one for the "zarzuela" and another for the
"cancionan." Jose Macaraeg supervised the construction
of the stage and as constructed the stage for the
"zarzuela" was "5-1/2 meters by 8 meters in size, had a
wooden floor high at the rear and was supported by 24
bamboo posts — 4 in a row in front, 4 in the rear and 5
on each side — with bamboo braces." 1
The "zarzuela" entitled "Midas Extravanganza" was
donated by an association of Malasiqui employees of the
Manila Railroad Company in Caloocan, Rizal. The troupe
arrived in the evening of January 22 for the performance
and one of the members of the group was Vicente
Fontanilla. The program started at about 10:15 o’clock
that evening with some speeches, and many persons
went up the stage. The "zarzuela" then began but before
the dramatic part of the play was reached, the stage
collapsed and Vicente Fontanilla who was at the rear of
the stage was pinned underneath. Fontanilla was taken
to the San Carlos General Hospital where he died in the
afternoon of the following day.
The heirs of Vicente Fontanilla filed a complaint with the
Court of First Instance of Manila on September 11, 1959
to recover damages. Named party-defendants were the
Municipality of Malasiqui, the Municipal Council of
Malasiqui and all the individual members of the Municipal
Council in 1959.
Answering the complaint defendant municipality invoked
inter alia the principal defense that as a legally and duly
organized public corporation it performs sovereign
functions and the holding of a town fiesta was an
exercise of its governmental functions from which no
liability can arise to answer for the negligence of any of
its agents.
The defendant councilors in turn maintained that they
merely acted as agents of the municipality in carrying out
the municipal ordinance providing for the management of
the town fiesta celebration and as such they are likewise
not liable for damages as the undertaking was not one
for profit; furthermore. they had exercised due care and
diligence in implementing the municipal ordinance. 2
After trial, the Presiding Judge, Hon. Gregorio T. Lantin,
narrowed the issue to whether or not the defendants
exercised due diligence in the construction of the stage.
From his findings he arrived at the conclusion that the
Executive Committee appointed by the municipal council
had exercised due diligence and care like a good father of
the family in selecting a competent man to construct a
stage strong enough for the occasion and that if it
collapsed that was due to forces beyond the control of
the committee on entertainment, consequently, the
defendants were not liable for damages for the death of
Vicente Fontanilla. The complaint was accordingly
dismissed in a decision dated July 10, 1962. 3
The Fontanillas appealed to the Court of Appeals. In a
decision promulgated on October 31, 1968, the Court of
Appeals through its Fourth Division composed at the time
of Justices Salvador V. Esguerra, Nicasio A. Yatco and
Eulogio S. Serrano reversed the trial court’s decision and
ordered all the defendants-appellees to pay jointly and
severally the heirs of Vicente Fontanilla the sums of
P12,000.00 by way of moral and actual damages:
P1,200.00 as attorney’s fees; and the costs. 4
The case is now before Us on various assignments of
errors all of which center on the proposition stated at the
opening sentence of this Opinion and which We repeat:
lawlibrary
chanrobles virtual
Is the celebration of a town fiesta an undertaking in the
exercise of a municipality’s governmental or public
function or is it of a private or proprietary character?
1. Under Philippine laws municipalities are political bodies
corporate and as such as endowed with the faculties of
municipal corporations to be exercised by and through
their respective municipal governments in conformity
with law, and in their proper corporate name, they may,
inter alia, sue and be sued, and contract and be
contracted with. 5
The powers of a municipality are twofold in character —
public, governmental, or political on the one hand, and
corporate, private, or proprietary on the other.
Governmental powers are those exercised by the
corporation in administering the powers of the state and
promoting the public welfare and they include the
legislative, judicial, public, and political, Municipal powers
on the other hand are exercised for the special benefit
and advantage of the community and include those which
are ministerial, private and corporate.
As to when a certain activity is governmental and when
proprietary or private, that is generally a difficult matter
to determine. The evolution of the municipal law in
American Jurisprudence, for instance, has shown that
none of the tests which have evolved and are stated in
textbooks have set down a conclusive principle or rule,
so that each case will have to be determined on the basis
of attending circumstances.
In McQuillin on Municipal Corporations, the rule is stated
thus: "A municipal corporation proper has . . . a public
character as regards the state at large insofar as it is its
agent in government, and private (so-cases) insofar as it
is to promote local necessities and conveniences for its
own community." 7
Another statement of the test is given in City of Kokomo
v. Loy, decided by the Supreme Court of Indiana in 1916,
thus:jgc:chanrobles.com.ph
"Municipal corporations exist in a dual capacity, and their
functions are twofold. In one they exercise the right
springing from sovereignty, and while in the performance
of the duties pertaining thereto, their acts are political
and governmental. Their officers and agents in such
capacity, though elected or appointed by them, are
nevertheless public functionaries performing a public
service, and as such they are officers, agents, and
servants of the state. In the other capacity the
municipalities exercise a private, proprietary or corporate
right, arising from their existence as legal persons and
not as public agencies. Their officers and agents in the
performance of such functions act in behalf of the
municipalities in their corporate or individual capacity,
6 and not for the state or sovereign power." (112 N.E.,
994-995) chanrobles law library
In the early Philippine case of Mendoza v. de Leon, 1916,
the Supreme Court, through Justice Grant T. Trent,
relying mainly on American Jurisprudence classified
certain activities of the municipality as governmental,
e.g.: regulations against fire, disease, preservation of
public peace, maintenance of municipal prisons,
establishment of schools, post-offices, etc. while the
following are corporate or proprietary in character, viz:
municipal waterwork, slaughterhouses, markets, stables,
bathing establishments, wharves, ferries, and fisheries. 8
Maintenance of parks, golf courses, cemeteries and
airports among others, are also recognized as municipal
or city activities of a proprietary character. 9
2. This distinction of powers becomes important for
purposes of determining the liability of the municipality
for the acts of its agents which result in an injury to third
persons.
If the injury is caused in the course of the performance
of a governmental function or duty no recovery, as a
rule, can be had from the municipality unless there is an
existing statute on the matter, 10 nor from its officers,
so long as they performed their duties honestly and in
good faith or that they did not act wantonly and
maliciously. 11 In Palafox, Et. Al. v. Province of Ilocos
Norte, Et Al., 1958, a truck driver employed by the
provincial government of Ilocos Norte ran over Proceto
Palafox in the course of his work at the construction of a
road. The Supreme Court in affirming the trial court’s
dismissal of the complaint for damages held that the
province could not be made liable because its employee
was in the performance of a governmental function — the
construction and maintenance of roads — and however
tragic and deplorable it may be, the death of Palafox
imposed on the province no duty to pay monetary
consideration. 12
With respect to proprietary functions, the settled rule is
that a municipal corporation can be held liable to third
persons ex contractu 13 or ex delicto. 14
"Municipal corporations are subject to be sued upon
contracts and in tort. . . .
x           x          x
"The rule of law is a general one, that the superior or
employer must answer civilly for the negligence or want
of skill of its agent or servant in the course or line of his
employment, by which another, who is free from
contributory fault, is injured. Municipal corporations
under the conditions herein stated, fall within the
operation of this rule of law, and are liable, accordingly,
to civil actions for damages when the requisite elements
of liability coexist . . ." (Dillon on Municipal Corporations,
5th ed. Secs, 1610, 1647, cited in Mendoza v. de Leon,
supra, 514)
3. Coming to the case before Us, and applying the
general tests given above, We hold that the holding of
the town fiesta in 1959 by the municipality of Malasiqui
Pangasinan, was an exercise of a private or proprietary
function of the municipality.
Section 2282 of the Chapter on Municipal Law of the
Revised Administrative Code provides: jgc:chanrobles.com.ph
"Section 2282. Celebration of fiesta. — A fiesta may be
held in each municipality not oftener than once a year
upon a date fixed by the municipal council. A fiesta shall
not be held upon any other date than that lawfully fixed
therefor, except when, for weighty reasons, such as
typhoons, inundations, earthquakes, epidemics, or other
public calamities, the fiesta cannot be held in the date
fixed, in which case it may be held at a later date in the
same year, by resolution of the council." cralaw virtua1aw library
This provision simply gives authority to the municipality
to a celebrate a yearly fiesta but it does not impose upon
it a duty to observe one. Holding a fiesta even if the
purpose is to commemorate a religious or historical event
of the town is in essence an act for the special benefit of
the community and not for the general welfare of the
public performed in pursuance of a policy of the state.
The mere fact that the celebration, as claimed, was not
to secure profit or gain but merely to provide
entertainment to the town inhabitants is not a conclusive
test. For instance, the maintenance of parks is not a
source of income for the town, nonetheless it is private
undertaking as distinguished from the maintenance of
public schools, jails, and the like which are for public
service.
chanrobles.com.ph : virtual law library
As stated earlier, there can be no hard and fast rule for
purposes of determining the true nature of an
undertaking or function of a municipality; the
surrounding circumstances of a particular case are to be
considered and will be decisive. The basic element,
however beneficial to the public the undertaking may be,
is that it is governmental in essence, otherwise, the
function becomes private or proprietary in character.
Easily, no governmental or public policy of the state is
involved in the celebration of a town fiesta. 15
4. It follows that under the doctrine of respondent
superior, petitioner-municipality is to be held liable for
damages for the death of Vicente Fontanilla if that was
attributable to the negligence of the municipality’s
officers, employees, or agents.
"Art. 2176, Civil Code: Whoever by act or omission
causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. . . ."
library
cralaw virtua1aw
"Art. 2180. Civil Code: The obligation imposed by article
2176 is demandable not only for one’s own acts or
omission, but also for those of persons for whom one is
responsible . . ."cralaw virtua1aw
On this point, the Court of Appeals found and held that
there was negligence.
The trial court gave credence to the testimony of Angel
Novado, a witness of the defendants (now petitioners),
that a member of the "extravaganza troupe" removed
two principal braces located on the front portion of the
stage and used them to hang the screen or "telon", and
that when many people went up the stage the latter
collapsed. This testimony was not believed however by
respondent appellate court, and rightly so. According to
said defendants, those two braces were "mother" or
"principal" braces located semi-diagonally from the front
ends of the stage to the front posts of the ticket booth
located at the rear of the stage and were fastened with a
bamboo twine. 16 That being the case, it becomes
incredible that any person in his right mind would
remove those principal braces and leave the front portion
of the stage practically unsupported. Moreover, if that did
happen, there was indeed negligence as there was lack
of supervision over the use of the stage to prevent such
an occurrence.
At any rate, the guitarist who was pointed to by Novado
as the person who removed the two bamboo braces
denied having done so. The Court of Appeals said. "Amor
by himself alone could not have removed the two braces
which must be about ten meters long and fastened them
on top of the stage for the curtain. The stage was only
five and a half meters wide Surely, it would be
impractical and unwieldy to use a ten meter bamboo
pole, much more two poles, for the stage curtain." 17
The appellate court also found that the stage was not
library
strong enough considering that only P100.00 was
appropriate for the construction of two stages and while
the floor of the "zarzuela" stage was of wooden planks,
the posts and braces used were of bamboo material. We
likewise observe that although the stage was described
by the petitioners as being supported by "24" posts,
nevertheless there were only 4 in front, 4 at the rear,
and 5 on each side. Where were the rest? chanrobles.com:cralaw:red
The Court of Appeals thus concluded: jgc:chanrobles.com.ph
"The court a quo itself attributed the collapse of the
stage to the great number of onlookers who mounted the
stage. The municipality and/or its agents had the
necessary means within its command to prevent such an
occurrence. Having failed to take the necessary steps to
maintain the safety of the stage for the use of the
participants in the stage presentation prepared in
connection with the celebration of the town fiesta,
particularly, in preventing nonparticipants or spectators
from mounting and accumulating on the stage which was
not constructed to meet the additional weight, the
defendants-appellees were negligent and are liable for
the death of Vicente Fontanilla." (pp. 30-31, rollo, L-
29993)
The findings of the respondent appellate court that the
facts as presented to it establish negligence as a matter
of law and that the Municipality failed to exercise the due
diligence of a good father of the family, will not disturbed
by Us in the absence of a clear showing of an abuse of
discretion or a gross misapprehension of facts. 18
Liability rests on negligence which is "the want of such
care as a person of ordinary prudence would exercise
under the circumstances of the case." 19
Thus, private respondents argue that the "Midas
Extravaganza" which was to be performed during the
town fiesta was a "donation" offered by an association of
Malasiqui employees of the Manila Railroad Co. in
Caloocan, and that when the Municipality of Malasiqui
accepted the donation of services and constructed
precisely a "zarzuela stage" for the purpose, the
participants in the stage show had the right to expect
that the Municipality through its "Committee on
entertainment and stage" would build or put up a stage
or platform strong enough to sustain the weight or
burden of the performance and take the necessary
measures to insure the personal safety of the
participants. 20 We agree.
Quite relevant to that argument is the American case of
Sanders v. City of Long Beach, 1942, which was an
action against the city for injuries sustained from a fall
when plaintiff was descending the steps of the city
auditorium. The city was conducting a "Know your City
Week" and one of the features was the showing of a
motion picture in the city auditorium to which the general
public was invited and plaintiff Sanders was one of those
who attended. In sustaining the award for damages in
favor of plaintiff, the District Court of Appeal, Second
district, California, held inter alia that the "Know your
City Week" was a "proprietary activity" and not a
"governmental one" of the city, that defendant owed to
plaintiff, an "invitee", the duty of exercising ordinary care
for her safety, and plaintiff was entitled to assume that
she would not be exposed to a danger (which in this case
consisted of lack of sufficient illumination of the
premises) that would come to her through a violation of
defendant’s duty. 21
We can say that the deceased Vicente Fontanilla was
similarly situated as Sanders. The Municipality of
Malasiqui resolved to celebrate the town fiesta in January
of 1959; it created a committee in charge of the
entertainment and stage; an association of Malasiqui
residents responded to the call for the festivities and
volunteered to present a stage show; Vicente Fontanilla
was one of the participants who like Sanders had the
right to expect that he would be exposed to danger on
that occasion. chanrobles virtual lawlibrary
Lastly, petitioner or appellant Municipality cannot evade
responsibility and/or liability under the claim that it was
Jose Macaraeg who constructed the stage. The
municipality acting through its municipal council
appointed Macaraeg as chairman of the sub-committee
on entertainment and in charge of the construction of the
"zarzuela" stage. Macaraeg acted merely as an agent of
the Municipality. Under the doctrine of respondent
superior mentioned earlier, petitioner is responsible or
liable for the negligence of its agent acting within his
assigned tasks. 22
". . . when it is sought to render a municipal corporation
liable for the act of servants or agents, a cardinal inquiry
is, whether they are the servants or agents of the
corporation. If the corporation appoints or elects them,
can control them in the discharge of their duties, can
continue or remove them, can hold them responsible for
the manner in which they discharge their trust, and if
those duties relate to the exercise of corporate powers,
and are for the peculiar benefit of the corporation in its
local or special interest, they may justly be regarded as
its agents or servants, and the maxim of respondent
superior applies.." . . (Dillon on Municipal Corporations,
5th Ed., Vol. IV, p. 2879)
5. The remaining question to be resolved centers on the
liability of the municipal councilors who enacted the
ordinance and created the fiesta committee.
The Court of Appeals held the councilors jointly and
solidarily liable with the municipality for damages under
Article 27 of the Civil Code which provides that "any
person suffering material or moral loss because a public
servant or employee refuses or neglects, without just
cause, to perform his official duty may file an action for
damages and other relief against the latter." 23
In their Petition for review the municipal councilors allege
that the Court of Appeals erred in ruling that the holding
of a town fiesta is not a governmental function and that
there was negligence on their part for not maintaining
and supervising the safe use of the stage, in applying
Article 27 of the Civil Code against them, and in not
holding Jose Macaraeg liable for the collapse of the stage
and the consequent death of Vicente Fontanilla. 24
We agree with petitioners that the Court of Appeals erred
in applying Article 27 of the Civil Code against them, for
this particular article covers a case of non-feasance or
non-performance by a public officer of his official duty; it
does not apply to a case of negligence or misfeasance in
carrying out an official duty.
If We are led to set aside the decision of the Court of
Appeals insofar as these petitioners are concerned, it is
because of plain error committed by respondent court
which however is not invoked in petitioners’ brief.
In Miguel v. The Court of Appeals, Et Al., the Court,
through Justice, now Chief Justice, Fred Ruiz Castro, held
that the Supreme Court is vested with ample authority to
review matters not assigned as errors in an appeal if it
finds that their consideration and resolution are
indispensable or necessary in arriving at a just decision
in a given case, and that this is authorized under Sec. 7,
Rule 51 of the Rules of Court. 25 We believe that this
pronouncement can well be applied in the instant case. chanrobles virtual
lawlibrary
The Court of Appeals in its decision now under review
held that the celebration of a town fiesta by the
Municipality of Malasiqui was not a governmental
function. We upheld that ruling. The legal consequence
thereof is that the Municipality stands on the same
footing as an ordinary private corporation with the
municipal council acting as its board of directors. It is an
elementary principle that a corporation has a personality,
separate and distinct from its officers, directors, or
persons composing it 26 and the latter are not as a rule
co-responsible in an action for damages for tort or
negligence (culpa aquiliana) committed by the
corporation’s employees or agents unless there is a
showing of bad faith or gross or wanton negligence on
their part. 27
x           x          x
"The ordinary doctrine is that a Director, merely by
reason of his office, is not personally liable for the torts
of his corporation; he must be shown to have personally
voted for or otherwise participated in them.." . . (Fletcher
Cyclopedia Corporations, Vol. 3A, Chapt. 11, p. 207)
"Officers of a corporation ‘are not held liable for the
negligence of the corporation merely because of their
official relation to it, but because of some wrongful or
negligent act by such officer amounting to a breach of
duty which resulted in an injury . . . To make an officer
of a corporation liable for the negligence of the
corporation there must have been upon his part such a
breach of duty as contributed to, or helped to bring
about, the injury; that is to say, he must be a participant
in the wrongful act.." . . (pp. 207-208, ibid.)
x           x          x
"Directors who merely employ one to give n fireworks
exhibition on the corporate grounds are not personally
liable for the negligent acts of the exhibitor." (p. 211,
ibid.)
On these principles We absolve the municipal councilors
from any liability for the death of Vicente Fontanilla. The
records do not show that said petitioners directly
participated in the defective construction of the
"zarzuela" stage or that they personally permitted
spectators to go up the platform.
6. One last point We have to resolve is on the award of
attorney’s fees by respondent court. Petitioner-
municipality assails the award.
Under paragraph 11, Art. 2208 of the Civil Code
attorney’s fees and expenses of litigation may be granted
when the court deems it just and equitable. In this case
of Vicente Fontanilla, although respondent appellate
court failed to state the grounds for awarding attorney’s
fees, the records show however that attempts were
made by plaintiffs, now private respondents, to secure an
extrajudicial compensation from the municipality; that
the latter gave promises and assurances of assistance
but failed to comply; and it was only eight months after
the incident that the bereaved family of Vicente
Fontanilla was compelled to seek relief from the courts to
ventilate what was believed to be a just cause. 28
We hold, therefore, that there is no error committed in
the grant of attorney’s fees which after all is a matter of
judicial discretion. The amount of P1,200.00 is fair and
reasonable.
PREMISES CONSIDERED, We AFFIRM in toto the decision
of the Court of Appeals insofar as the Municipality of
Malasiqui is concerned (L-30183), and We absolve the
municipal councilors from liability and SET ASIDE the
judgment against them (L-29993).
Without pronouncement as to costs.
 The Antecedents
SO ORDERED.
In a Deed of Donation dated March 9, 1984, subsequently
G.R. No. 97882 August 28, 1996 superseded by a Deed of Donation dated September 27, 1984,
which in turn was superseded by an Amended Deed of Donation
THE CITY OF ANGELES, Hon. ANTONIO ABAD SANTOS, in dated November 26, 1984, private respondent donated to the City
his capacity as MAYOR of Angeles City, and the of Angeles, 51 parcels of land situated in Barrio Pampang, City of
SANGGUNIANG PANLUNGSOD OF THE CITY OF Angeles, with an aggregate area of 50,676 square meters, more
ANGELES, petitioners, or less, part of a bigger area also belonging to private
vs. respondent. The amended deed   provided, among others, that:
5

COURT OF APPEALS and TIMOG SILANGAN

DEVELOPMENT CORPORATION, respondents. 2. The properties donated shall be devoted and
utilized solely for the site of the Angeles City
  Sports Center (which excludes cockfighting)
pursuant to the plans to be submitted within six (6)
PANGANIBAN, J.:p months by the DONEE to the DONOR for the
latter's approval, which approval shall not be
In resolving this petition, the Court addressed the questions of whether a donor of open
unreasonably withheld as long as entire properties
spaces in a residential subdivision can validly impose conditions on the said donation; donated are developed as a Sports Complex. Any
whether the city government as donee can build and operate a drug rehabilitation center on change or modification in the basic design or
the donated land intended for open space; and whether the said donation may be validly
rescinded by the donor. concept of said Sports Center must have the prior
written consent of the DONOR.
Petitioners claim they have the right to construct and operate a
drug rehabilitation center on the donated land in question, 3. No commercial building, commercial complex,
contrary to the provisions stated in the amended Deed of market or any other similar complex, mass or
Donation. tenament (sic) housing/building(s) shall be
constructed in the properties donated nor shall
On the other hand, private respondent, owner/developer of the cockfighting, be allowed in the premises.
Timog Park residential subdivision in Angeles City, opposed the
construction and now, the operation of the said center on the 4. The construction of the Sports Center shall
donated land, which is located within said residential subdivision. commence within a period of one (1) year from
March 9, 1984 and shall be completed within a
Before us is a petition for review on certiorari assailing the period of five (5) years from March 9, 1984.
Decision  of the Court of Appeals   dated October 31, 1990, which
1 2

affirmed the decision   of the Regional Trial Court of Angeles City
3 xxx xxx xxx
Branch 56,   dated February 15, 1989.
4
 6. The properties donated (which is more than five
(5) percent of the total land area of the DONOR's
subdivision) shall constitute the entire open space
for DONOR's subdivision and all other lands or
areas previously reserved or designated, including
Lot 1 and Lot 2A of Block 72 and the whole Block
29 are dispensed with, and rendered free, as
open spaces, and the DONEE hereby agrees to
execute and deliver all necessary consents,
approvals, endorsements, and authorizations to
effect the foregoing.
7. The properties donated are devoted and
described as "open spaces" of the DONOR's
subdivision, and to this effect, the DONEE, upon
acceptance of this donation, releases the DONOR
and/or assumes any and all obligations and
liabilities appertaining to the properties donated.
8. Any substantial breach of the foregoing
provisos shall entitle the DONOR to revoke or
rescind this Deed of Donation, and in such
eventuality, the DONEE agrees to vacate and
return the premises, together with all
improvements, to the DONOR peacefully without
necessity of judicial action.
On July 19, 1988, petitioners started the construction of a drug
rehabilitation center on a portion of the donated land. Upon
learning thereof, private respondent protested such action for
being violative of the terms and conditions of the amended deed
and prejudicial to its interest and to those of its clients and
residents. Private respondent also offered another site for the
rehabilitation center. However, petitioners ignored the protest,
maintaining that the construction was not violative of the terms of
the donation. The alternative site was rejected because,
according to petitioners, the site was too isolated and had no
electric and water facilities.
On August 8, 1988, private respondent filed a complaint with the
Regional Trial Court, Branch 56, in Angeles City against the
petitioners, alleging breach of the conditions imposed in the
amended deed of donation and seeking the revocation of the
donation and damages, with preliminary injunction and/or
temporary restraining order to halt the construction of the said
center.
On August 10, 1988, the trial court issued a temporary restraining
order to enjoin the petitioners from further proceeding with the
construction of the center, which at that time was already 40%
complete.
However, the trial court denied the prayer for preliminary
injunction based on the prohibition in Presidential Decree No.
1818.
In their Answer with counterclaim, petitioners admitted the
commencement of the construction but alleged inter alia that the
conditions imposed in the amended deed were contrary to
Municipal Ordinance No. 1, Series of 1962, otherwise known as
the Subdivision Ordinance of the Municipality of Angeles. 6
On October 15, 1988, private respondent filed a Motion for Partial
Summary Judgment on the ground that the main defense of the
petitioners was anchored on a pure question of law and that their
legal position was untenable.
The petitioners opposed, contending that they had a meritorious
defense as (1) private respondents had no right to dictate upon
petitioners what to do with the donated land and how to do it so
long as the purpose remains for public use; and (2) the cause of
action of the private respondent became moot and academic
when the Angeles City Council repealed the resolution providing
for the construction of said drug rehabilitation center and adopted
a new resolution changing the purpose and usage of said center
to a "sports development and youth center" in order to conform
with the sports complex project constructed on the donated land.
On February 15, 1989, the trial court rendered its decision, in
relevant part reading as follows:
. . . the Court finds no inconsistency between the
conditions imposed in the Deeds of Donation and
the provision of the Subdivision Ordinance of the
City of Angeles requiring subdivisions in Angeles
City to reserve at least one (1) hectare in the
subdivision as suitable sites known as open
spaces for parks, playgrounds, playlots and/or
other areas to be rededicated to public use. On
the contrary, the condition requiring the defendant
city of Angeles to devote and utilize the properties
donated to it by the plaintiff for the site of the
Angeles City Sports Center conforms with the
requirement in the Subdivision Ordinance that the
subdivision of the plaintiff shall be provided with a
playground or playlot, among others.
On the other hand the term "public use'" in the
Subdivision Ordinance should not be construed to
include a Drug Rehabilitation Center as that would
be contrary to the primary purpose of the
Subdivision Ordinance requiring the setting aside
of a portion known as "Open Space" for park,
playground and playlots, since these are intended
primarily for the benefit of the residents of the
subdivision. While laudable to the general public,
a Drug Rehabilitation Center in a subdivision will
be a cause of concern and constant worry to its
residents.
As to the third issue in paragraph (3), the passage
of the Ordinance changing the purpose of the
building constructed in the donated properties
from a Drug Rehabilitation Center to a Sports
Center comes too late. It should have been
passed upon the demand of the plaintiff to the
defendant City of Angeles to stop the construction
of the Drug Rehabilitation Center, not after the
complaint was filed.
Besides, in seeking the revocation of the
Amended Deed of Donation, plaintiff also relies on
the failure of the defendant City of Angeles to
submit the plan of the proposed Sports Center
within six (6) months and construction of the same
within five years from March 9, 1984, which are
substantial violations of the conditions imposed in
the Amended Deed of Donation.
The dispositive portion of the RTC decision reads:
WHEREFORE, judgment is hereby rendered:
(1) Enjoining defendants, its officers, employees
and all persons acting on their behalf to
perpetually cease and desist from constructing a
Drug Rehabilitation Center or any other building or
improvement on the Donated Land.
(2) Declaring the amended Deed of Donation
revoked and rescinded and ordering defendants
to peacefully vacate and return the Donated Land
to plaintiff, together with all the improvements
existing thereon. And,
(3) Denying the award of compensatory or actual
and exemplary damages including attorney's fees.
NO PRONOUNCEMENT AS TO COST.
In March 1989, petitioners fried their Notice of Appeal. On April
15, 1989 while the appeal was pending, petitioners inaugurated
the Drug Rehabilitation Center. 7
On April 26, 1991, the respondent Court rendered the assailed
Decision affirming the ruling of the trial court. Subsequently, the
petitioners motion for re-consideration was also denied for lack of
merit.
Consequently, this Petition for Review.
The Issues
The key issues   raised by petitioners may be restated as follows:
8 1216, dated October 14, 1977,   which reads:
I. Whether a subdivision owner/developer is
legally bound under Presidential Decree No. 1216
to donate to the city or municipality the "open
space" allocated exclusively for parks, playground
and recreational use.
II. Whether the percentage of the "open space"
allocated exclusively for parks, playgrounds and
recreational use is to be based on the "gross
area" of the subdivision or on the total area
reserved for "open space".
III. Whether private respondent as subdivision
owner/developer may validly impose conditions in
the Amended Deed of Donation regarding the use
of the "open space" allocated exclusively for parks
and playgrounds..
IV. Whether or not the construction of the Drug
Rehabilitation Center on the donated "open
space" may be enjoined.
V. Whether the donation by respondents
subdivision owner/developer of the "open space"
of its subdivision in favor of petitioner City of
Angeles may be revoked for alleged violation of
the Amended Deed of Donation.
Central to this entire controversy is the question of whether the
donation of the open space may be revoked at all.
First Issue: Developer Legally Bound to Donate Open
Space
The law involved in the instant case is Presidential Decree No.
9
PRESIDENTIAL DECREE NO. 1216
Defining "Open Space" In Residential
Subdivisions And Amending Section 31 Of
Presidential Decree No. 957 Requiring
Subdivision Owners To Provide Roads, Alleys,
Sidewalks And Reserve Open Space For Parks
Or Recreational Use.
WHEREAS, there is a compelling need to create
and maintain a healthy environment in human
settlements by providing open spaces, roads,
alleys and sidewalks as may be deemed suitable
to enhance the quality of life of the residents
therein;
WHEREAS, such open spaces, roads, alleys and
sidewalks in residential subdivisions are for public
use and are, therefore, beyond the commerce of
men;
WHEREAS, pursuant to Presidential Decree No.
953 at least thirty percent (30%) of the total area
of a subdivision must be reserved, developed and
maintained as open space for parks and
recreational areas, the cost of which will ultimately
be borne by the lot buyers which thereby increase
the acquisition price of subdivision lots beyond the
reach of the common mass;
WHEREAS, thirty percent (30%) required open
space can be reduced to a level that will make the
subdivision industry viable and the price of
residential lots within the means of the low income
group at the same time preserve the
environmental and ecological balance through
rational control of land use and proper design of
space and facilities;
WHEREAS, pursuant to Presidential Decree No.
757, government efforts in housing, including
resources, functions and activities to maximize
results have been concentrated into one single
agency, namely, the National Housing Authority;
NOW, THEREFORE, I, FERDINAND E.
MARCOS, President of the Philippines, by virtue
of the powers vested in me by the Constitution, do
hereby order and decree:
Sec. 1. For purposes of this Decree, the term
"open apace" shall mean an area reserved
exclusively for parks, playgrounds, recreational
uses, schools, roads, places of worship, hospitals,
health centers, barangay centers and other similar
facilities and amenities.
Sec. 2. Section 31 of Presidential Decree No. 957
is hereby amended to read as follows:
Sec. 31. Roads, Alleys, Sidewalks
and Open Spaces — The owner
as developer of a subdivision shall
provide adequate roads, alleys
and sidewalks. For subdivision
projects one (1) hectare or more,
the owner or developer shall
reserve thirty percent (30%) of the
gross area for open space. Such
open space shall have the
following standards allocated
exclusively for parks, playgrounds
and recreational use:
a. 9% of gross area for high
density or social housing (66 to
100 family lots per gross hectare).
b. 7% of gross area for medium-
density or economic housing (21
to 65 family lots per gross
hectare).
c. 3.5% of gross area for low-
density or open market housing
(20 family lots and below per gross
hectare).
These areas reserved for parks, playgrounds and
recreational use shall be non-alienable public
lands, and non-buildable. The plans of the
subdivision project shall include tree planting on
such parts of the subdivision as may be
designated by the Authority.
 Upon their completion certified to by the Authority,
the roads, alleys, sidewalks and playgrounds shall
be donated by the owner or developer to the city
or municipality and it shall be mandatory for the
local governments to accept provided, however,
that the parks and playgrounds maybe donated to
the Homeowners Association of the project with
the consent of the city or municipality concerned.
No portion of the parks and playgrounds donated
thereafter shall be converted to any other purpose
or purposes.
Sec. Sections 2 and 5 of Presidential Decree No.
953 are hereby repealed and other laws, decrees,
executive orders, institutions, rules and
regulations or parts thereof inconsistent with these
provisions are also repealed or amended
accordingly.
Sec. 4. This Decree shall take effect immediately.
Pursuant to the wording of Sec. 31 of P.D. 957 as above
amended by the aforequoted P.D. No. 1216, private respondent
is under legal obligation to donate the open space exclusively
allocated for parks, playgrounds and recreational use to the
petitioner.
This can be clearly established by referring to the original
provision of Sec. 31 of P.D. 957, which reads as follows:
Sec. 31. Donation of roads and open spaces to
local government — The registered owner
developer of the subdivision or condominium
project, upon completion of the development of
said project may, at his option, convey by way of
donation the roads and open spaces found within
the project to the city or municipality wherein the
project is located. Upon acceptance of he
donation by the city or municipality concerned, no
portion of the area donated shall thereafter be
converted to any other purpose or purposes
unless after hearing, the proposed conversion is
approved by the Authority. (Emphasis supplied)
It will be noted that under the aforequoted original provision, it
was optional on the part of the owner or developer to donate the
roads and spaces found within the project to the city or
municipality where the project is located. Elsewise stated, there
was no legal obligation to make the donation.
However, said Sec. 31 as amended now states in its last
paragraph:
Upon their completion . . ., the roads, alleys,
sidewalks and playgrounds shall be donated by
the owner or developer to the city or municipality
and it shall be mandatory for the local government
to accept; provided, however, that the parks and
playgrounds may be donated to the Homeowners
Association of the project with the consent of the
city or must concerned. . . .
It is clear from the aforequoted amendment that it is no
longer optional on the part of the subdivision
owner/developer to donate the grounds; rather there is
now a legal obligation to donate the same. Although there
is a proviso a proviso that the donation of the parks and
playgrounds may be made to the homeowners
association of the project with the consent of the city of
municipality, concerned, nonetheless, the
owner/developer is still obligated under the law to donate.
Such option does not change the mandatory hectare of
the provision. The donation has to be made regardless of
which donee is picked by the owner/developer. The
 consent requirement before the same can be donated to
the homeowners" association emphasizes this point.
Second Issue: Percentage of Area for Parks and Playgrounds
Petitioners contend that the 3.5% to 9% allotted by Sec. 31 for
parks, playgrounds and recreational uses should be based on the
gross area of the entire subdivision, and not merely on the area of
the open space alone, as contended by private respondent and
as decided by the respondent Court.  10
The petitioners are correct. The language of Section 31 of P.D.
957 as amended by Section 2 of P.D. 1216 is wanting in clarity
and exactitude, but it can be easily inferred that the phrase "gross
area" refers to the entire subdivision area. The said phrase was
used four times in the same section in two sentences, the first of
which reads:
. . . For subdivision projects one (1) hectare or
more, the owner or more, the owner or developer
shall reserve thirty percent (30%) of the gross
area for open space, . . .
Here, the phrase "30% of the gross area" refers to the total area
of the subdivision, not of the open space. Otherwise, the
definition of "open space" would be circular. Thus, logic dictates
that the same basis be applied in the succeeding instances where
the phrase "open space" is used, i.e., "9% of gross area... 7% of
gross area... 3.5% of gross area..." Moreover, we agree with
petitioners that construing the 3.5% to 9% as applying to the
totality of the open space would result in far too small an area
being devoted for parks, playgrounds, etc., thus rendering
meaningless and defeating the purpose of the statute. This
becomes clear when viewed in the light of the original
requirement of P.D. 953 ("Requiring the Planting of Trees in
Certain Places, etc."), section 2 of which reads:
Sec. 2. Every owner of land subdivided into
commerce/residential/industrial lots after the
effectivity of this Decree shall reserve, develop
and maintain not less than thirty percent (30%) of
the total area of the subdivision, exclusive of
roads, service streets and alleys, as open space
for parks and recreational areas.
No plan for a subdivision shall be approved by the
Land Registration Commission or any office or
agency of the government unless at least thirty
percent (30%) of the total area of the subdivision,
exclusive, of roads, service streets and alleys, is
reserved as open space for parks and recreational
areas . . .
To our mind, it is clear that P.D. 1216 was an attempt to achieve
a happy compromise and a realistic balance between the
imperatives of environmental planning and the need to maintain
economic feasibility in subdivision and housing development, by
reducing the required area for parks, playgrounds and
recreational uses from thirty percent (30%) to only 3.5% — 9% of
the entire area of the subdivision.
Third Issue: Imposition of Conditions in Donation of Open
Space
Petitioners argue that since the private respondent is required by
law to donate the parks and playgrounds, it has no right to
impose the condition in the Amended Deed of Donation that "the
properties donated shall be devoted and utilized solely for the site
of the Angeles City Sports Center." It cannot prescribe any
condition as to the use of the area donated because the use of
the open spaces already governed by P.D. 1216. In other words,
the donation should be absolute. Consequently, the conditions in
the amended deed which were allegedly violated are deemed not
written. Such being the case, petitioners cannot be considered to
have committed any violation of the terms and conditions of the
said amended deed, as the donation is deemed unconditional,
and it follows that there is no basis for revocation of the donation.
However, the general law on donations does not prohibit the
imposition of conditions on a donation so long as the conditions
are not illegal or
impossible. 11
In regard to donations of open spaces, P.D. 1216 itself requires
among other things that the recreational areas to be donated be
based, as aforementioned, on a percentage (3.5% 7%, or 9%) of
the total area of the subdivision depending on whether the
division is low —, medium —, or high-density. It further declares
that such open space devoted to parks, playgrounds and
recreational areas are non-alienable public land and non-
buildable. However, there is no prohibition in either P.D. 957 or
P.D. 1216 against imposing conditions on such donation.
We hold that any condition may be imposed in the donation, so
long as the same is not contrary to law, morals, good customs,
public order or public policy. The contention of petitioners that the
donation should be unconditional because it is mandatory has no
basis in law. P.D. 1216 does not provide that the donation the
open space for parks and playgrounds should be unconditional.
To rule that it should be so is tantamount to unlawfully expanding,
the provisions of the decree. 12
In the case at bar, one of the conditions imposed in the Amended
Deed of Donation is that the donee should build a sports complex
on the donated land. Since P.D. 1216 clearly requires that the
3.5% to 9% of the gross area alloted for parks and playgrounds is
"non-buildable", then the obvious question arises whether or not
such condition was validly imposed and is binding on the donee.
It is clear that the "non-buildable" character applies only to the
3.5% to 9% area set by law. If there is any excess land over and
above the 3.5% to 9% required by the decree, which is also used
or allocated for parks, playgrounds and recreational purposes, it
is obvious that such excess area is not covered by the non-
buildability restriction. In the instant case, if there be an excess,
then the donee would not be barred from developing and
operating a sports complex thereon, and the condition in the
amended deed would then be considered valid and binding.
To determine if the over 50,000 square meter area donated
pursuant to the amended deed would yield an excess over the
area required by the decree, it is necessary to determine under
which density category the Timog Park subdivision falls.
If the subdivision falls under the low density or open market
housing category, with 20 family lots or below per gross hectare,
the developer will need to allot only 3.5% of gross area for parks
and playgrounds, and since the donated land constitutes "more
than five (5) percent of the total land area of the
subdivision   there would therefore be an excess of over 1.5% of
13
gross area which would not be non-buildable. Petitioners, on the
other hand, alleged (and private respondent did not controvert)
that the subdivision in question is a "medium-density or economic
housing" subdivision based on the sizes of the family lots donated
in the amended deed,   for which category the decree mandates
14
that not less than 7% of gross area be set aside. Since the
donated land constitutes only a little more than 5% of the gross
area of the subdivision, which is less than the area required to be
allocated for non-buildable open space, therefore there is no
"excess land" to speak of. This then means that the condition to
build a sports complex on the donated land is contrary to law and
should be considered as not imposed.
Fourth Issue: Injunction vs. Construction of the Drug
Rehabilitation Center
Petitioners argue that the court cannot enjoin the construction of
the drug rehabilitation center because the decision of the court
came only after the construction of the center was completed
and, based on jurisprudence, there can be no injunction unction
of events that have already transpired. 15
Private respondent, on the other hand, counters that the
operation of the center is a continuing act which would clearly
cause injury to private respondent, its clients, and residents of the
subdivision, and thus, a proper subject of injunction.   Equity
16
should move in to granting of the injunctive relief if persistent
repetition of the wrong is threatened.
In light of Sec. 31 of P.D. 957, as amended, declaring the open
space for parks, playgrounds and recreational area as non-
buildable, it appears indubitable that the construction and
operation of a drug rehabilitation center on the land in question is
a continuing violation of the law and thus should be enjoined.
Furthermore, the factual background of this case warrants that
this Court rule against petitioners on this issue. We agree with
and affirm the Court's finding that petitioners committed acts
mocking the judicial system.  18
. . . When a writ of preliminary injunction was
sought for by the appellee (private respondent) to
enjoin the appellants [petitioners herein] from
further continuing with the construction of the
appellants the said center, the latter resisted and
took refuge under the provisions of Presidential
Decree No. 1818 (which prohibits writs of
preliminary injunction) to continue with the
construction of the building. Yet, the appellants
also presented "City Council Resolution No. 227
which allegedly repealed the previous Resolution
authorizing the City Government to construct a
Drug Rehabilitation Center on the donated
property, by "changing the purpose and usage of
the Drug Rehabilitation Center to Sports
Development and Youth Center to make it
conform to the Sports Complex Project therein".
Under this Resolution No. 227, the appellants
claimed that they have abandoned all plans for
the construction of the Drug Rehabilitation
Nonetheless, when judgment was finally rendered
on February 15, 1989, the appellants were quick
to state that they have not after all abandoned
their plans for the center as they have in fact
inaugurated the same April 15, 1989. In plain and
simple terms, this act is a mockery of our judicial
system perpetrated by the appellants. For them to
argue that the court deal on their Drug
Rehabilitation Center is not only preposterous but
also ridiculous.
It is interesting to observe that under the appealed
decision the appellants and their officers,
employees and all other persons acting on their
behalf were perpetually enjoined to cease and
desist from constructing a Drug Rehabilitation
Center on the donated property. Under Section 4
of Rule 39 of the Rules of Court, it is provided
that:
Sec. 4 A judgment in an action for injunction shall
not be stayed after its rendition and before an
appeal is taken or during the tendency of an
appeal .
Accordingly, a judgment restraining a party from
doing a certain act is enforceable and shall remain
in full force and effect appeal. In the case at bar,
the cease and desist order therefore still stands.
Appellants persistence and continued construction
and, subsequent, operation of the Drug
Rehabilitation Center violate the express terms of
the writ of injunction lawfully issued by the lower
court.
This Court finds no cogent reason to reverse the above
mentioned findings of the respondent court. The allegation of the
petitioners that the construction of the center was finished before
the judgment of the trial court was rendered deserves scant
consideration because it is self-serving and is completely
unsupported by other evidence.
The fact remains that the trial court rendered judgment enjoining
the construction of the drug rehabilitation center, revoking the
donation and ordering the return of the donated land. In spite of
such injunction, petitioners publicly flaunted their disregard
thereof with the subsequent inauguration of the center on August
15, 1989. The operation o the center, after inauguration, is even
more censurable
Fifth Issue: Revocation of a Mandatory Donation Because
of Non-
compliance With an Illegal Condition
The private respondent contends that the building of said drug
rehabilitation center is violative of the Amended Deed of
Donation. Therefore, under Article 764 of the New Civil Code and
stipulation no. 8 of the amended deed, private respondent is
empowered to revoke the donation when the donee has failed to
comply with any of the conditions imposed in the deed.
We disagree. Article 1412 of the Civil Code which provides that:
If the act in which the unlawful or forbidden cause
consists does not constitute a criminal offense,
the following rules shall be observed:
(1) When the fault is on the part of both
contracting parties, neither may recover what he
has given by virtue of the contract, or demand the
performance of the other's undertaking;
comes into play here. Both petitioners and private
respondents are in violation of P.D. 957 as amended, for
donating and accepting a donation of open space less
than that required by law, and for agreeing to build and
operate a sports complex on the non-buildable open
space so donated; and petitioners, for constructing a drug
rehabilitation center on the same non-buildable area.
Moreover, since the condition to construct a sport complex on the
donated land has previously been shown to be contrary to law,
therefore, stipulation no. 8 of the amended deed cannot be
implemented because (1) no valid stipulation of the amended
deed had been breached, and (2) it is highly improbable that the
decree would have allowed the return of the donated land for
open space under any circumstance, considering the non-
alienable character of such open space, in the light of the second
Whereas clause of P.D. 1216 which declares that . . . such open
spaces, roads, alleys and sidewalks in residential subdivisions
are for public use and are, therefore, beyond the commerce of
men.
Further, as a matter of public policy, private respondent cannot be
allowed to evade its statutory obligation to donate the required
open space through the expediency of invoking petitioners breach
of the aforesaid condition. It is a familiar principle that the courts
will not aid either party to enforce an illegal contract, but will leave
them both where they find them. Neither party can recover
damages from the other arising from the act contrary to law, or
plead the same as a cause of action or as a defense. Each must
bear the consequences of his own acts.  19
There is therefore no legal basis whatsoever to revoke the
donation of the subject open space and to return the donated
land to private respondent. The donated land should remain with
the donee as the law clearly intended such open spaces to be
perpetually part of the public domain, non-alienable and
permanently devoted to public use as such parks, playgrounds or
recreation areas.
Removal/Demolition of Drug Rehabilitation Center
Inasmuch as the construction and operation of the drug
rehabilitation center has been established to law, the said center
should be removed or demolished. At this juncture, we hasten to
add that this Court is and has always been four-square behind
the government's efforts to eradicate the drug scourge in this
country. But the end never justifies the means, and however
laudable the purpose of the construction in question, this Court
cannot and will not countenance an outright and continuing
violation of the laws of the land, especially when committed by
public officials.
In theory, the cost of such demolition, and the reimbursement of
the public funds expended in the construction thereof, should be
borne by the officials of the City Angeles who ordered and
directed such construction. This Court has time and again ruled
that public officials are not immune from damages in their
personal capacities arising from acts done in bad faith. Otherwise
stated, a public official may be liable in his personal capacity for
whatever damage he may have caused by his act done with
malice and in bad faith or beyond the scope of his authority or
jurisdiction.   In the instant case, the public officials concerned
20
deliberately violated the law and persisted in their violations,
going so far as attempting to deceive the courts by their
pretended change of purpose and usage for the enter, and
"making a mockery of the judicial system". Indisputably, said
public officials acted beyond the scope of their authority and
jurisdiction and with evident bad faith. However, as noted by the
trial court  , the petitioners mayor and members of the
21
Sangguniang Panlungsod of Angeles City were sued only in
their official capacities, hence, they could not be held personally
liable without first giving them their day in court. Prevailing
jurisprudence   holding that public officials are personally liable
22
for damages arising from illegal acts done in bad faith are
premised on said officials having been sued both in their official
and personal capacities.
After due consideration of the circumstances, we believe that the
fairest and most equitable solution is to have the City of Angeles,
donee of the subject open space and, ostensibly, the main
beneficiary of the construction and operation of the proposed
drug rehabilitation center, undertake the demolition and removal
of said center, and if feasible, recover the cost thereof from the
city officials concerned.
WHEREFORE, the assailed Decision of the Court of appeals
hereby MODIFIED as follows:
(1) Petitioners are hereby ENJOINED perpetually from operating
the drug rehabilitation center or any other such facility on the
donated open space.
(2) Petitioner City of Angeles is ORDERED to undertake and
removal of said drug rehabilitation center within a period of three
(3) months from finality of this Decision, and thereafter, to devote
public use as a park, playground or other recreational use.
(3) The Amended Deed of Donation dated November 26, 1984 is
hereby declared valid and subsisting, except that the stipulations
or conditions therein concerning the construction of the Sports
Center or Complex are hereby declared void and as if not
imposed, and therefore of no force and effect.
No Costs.
SO ORDERED.
G.R. No. L-44484 March 16, 1987
OSMUNDO G. RAMA, petitioner,
vs.
COURT OF APPEALS, JOSE ABALA, MELCHOR ABANGAN,
EUTIQUIO ALEGRADO, EMIGDIO BLANCO, ISABELO
CABUENAS, CESAR CAMILLO, JOSE CENIZA, ANDRES
CAMPANA, FIDEL CORONEL, MARCIANO CUESTAS,
IGNACIO DACLIZON, ROLAND ENRIQUEZ, DIONISIO
FLORES, PATERNO FLORES, MODESTO GERALDE, CENON
GESIN, LEONCIO GUMBOC, CLAUDIO LEGASPI, INOCENCIO
LLANOS, HIPOLITO MANUBAG, MAURICIO MANACAP,
CONSTANCIO MAMAYAGA, BIENVENIDO MATIS, MODESTO
NAMONG, CATALINO OCHIA, CECILIO QUIJANO, HILARIO
DE LOS SANTOS, FELICIANO SACARES, ENRIQUE
SAROMINES, ALFONSO TABAY, ANGEL TEVES, SR., JAIME
TRANI, RODULFO VERANO, VICENTE VILLARCA, DOROTEO
ARMAS, ISABELO ABAPO, GREGORIO ABASTILLAS,
RAFAEL ABASTILLAS, LORETO ALICAWAY, CIRIACO
BARILLO, MIGUEL BINOLINAO, CELERINO BUTAY, IGNACIO
BELLEZA, ANATOLIO BINOYA, ZACARIAS BUCARIZA,
FERNANDO CASTRO, MARCIANO DE LA CERNA, VERANO
BADANA, DONATO CABANERO, ANECITO DE LA CERNA,
DIOSDADO CAÑETE, GABRIEL CAÑETE, ERIBERTO
DACALOS, NONILO DE CASTILLA, SERGIO DAYANAN,
FLAVIANO DEIPARINE, BERNARDO GAMBOA, ISMAEL
GANTUANGCO, CESAR HERNANDEZ, JORGE JACA,
GORGONIO JACALAN, SEVERIANO LANGBID, TOMAS
LANGBID, DIOSDADO LASTIMADO, PABLO LUNA, MAXIMO
LARIOSA, VICENTE LAPAZ, RICARDO MAGALLON,
EMILIANO MATARIO, RAMON PADRIGA, NICANOR OPURA,
ALBERTO MINTILLOSA, RUFINO REPONTE, BLAS
PARDILLO, ESMAEL REGUDUS, MARCELIANO DELOS
SANTOS, CANDIDO RUFLO, LUIS SALAPA, PEDRO SACEL,
FRISCO SACEL, MIGUEL SARAMOSING, JULIAN VELOSO,
BERNARDO TALLO, ARQUIPO YRAY, PATRICIO VILLARMIA,
VICENTE VILLAMORA and LEONCIO ZABALA, respondents.
No. L-44842 March 16, 1987
RENE ESPINA, PABLO P, GARCIA, REYNALDO M.
MENDIOLA and VALERIANO S. CARILLO, petitioners,
vs.
COURT OF APPEALS, FROILAN FRONDOSO and JEREMIAS
LUNA, respondents.
No. L-44591 March 16, 1987
RENE ESPINA, PABLO P. GARCIA, REYNALDO M.
MENDIOLA and VALERIANO S. CARILLO, petitioners,
vs.
COURT OF APPEALS and (same respondents as in L-
44484), respondents.
No. L-44894 March 16, 1987
PROVINCE OF CEBU and its SANGGUNIANG
PANLALAWIGAN, petitioner,
vs.
COURT OF APPEALS, FROILAN FRONDOSO and JEREMIAS
LUNA, respondents.
Cecilio V. Guaren for private respondents in L-44894.
Justino Hermosisima for Province of Cebu in L-44894.
Pablo P. Garcia & Valeriano S. Carillo for petitioners in L-46668 &
44842.
Gabriel Cañete for private respondents.
ALAMPAY, J.:
During the incumbency of Rene Espina as provincial governor of
Cebu, Osmundo G. Rama as vice-governor and Pablo P. Garcia,
Reynaldo M. Mendiola and Valerians S. Carillo as members of
the Sangguniang Panlalawigan, said officials adopted Resolution
No. 990 which appropriated funds "for the maintenance and
repair of provincial roads and bridges and for the operation and
maintenance of the office of the provincial engineer and for other
purposes." (L-44591, Rollo, pp. 34-37).
In said resolution, the provincial government of Cebu under the
aforementioned officials, declared its policy "to mechanize the
maintenance and repair of all roads and bridges of the province
(including provincial roads and bridges receiving national aid
"JJ"), to economize in the expenditure of its Road and Bridge
Fund for the maintenance and repair of provincial roads and
bridges receiving national aid "JJ" and to adopt a more
comprehensive, systematic, efficient, progressive and orderly
operation and maintenance of the Office of the Provincial
Engineer."
To implement said policy, the provincial board resolved to abolish
around thirty positions * the salaries of which were paid from the "JJ" Road and
Bridge Fund thus doing away with the caminero (pick-shovel-wheelbarrow) system
Consequently around 200 employees of the province were eased out of their respective jobs
and, to implement the mechanization program in the maintenance of roads and bridges, the
provincial government purchased heavy equipment worth P4,000,000.00. However, contrary
to its declared policy to economize the provincial administration later on hired around one
thousand new employees, renovated the office of the provincial engineer and provided the
latter with a Mercedes-Benz car (Decision in CA-G.R. No. 49328-R, L-44591, Rollo, p. 37).
Aggrieved by these turn of events, the employees whose
positions were abolished filed separate petitions for mandamus,
damages and attorneys fees aimed at the annulment of
Resolution No. 990, their reinstatement and the recovery of
damages The aforementioned provincial officials who, together
with the provincial auditor, provincial treasurer, provincial
engineer and the province of Cebu, were named respondents in
said action, were sued "both in their official and personal"
capacities as a result of their alleged "unjust, oppressive, illegal
and malicious' acts (Petition, Record in Civil Case No. R-10704,
p. 3).
In Civil Case No. R-10704, the Court of First Instance of Cebu
declared Resolution No. 990 nun and void and ordered the
respondent officials to re-create the positions abolished, to
provide funds therefore, to reinstate the 56 petitioners headed by
Jose Abala, and to pay them back salaries. For "lack of legal and
factual basis," no damages were awarded to petitioners and no
pronouncement as to attorney's fees were made as the
petitioners had agreed to pay their lawyers 30% of whatever
amount they would receive as back salaries (L-44591, Rollo, pp.
33-34).
All the parties appealed to the Court of Appeals (CA-G.R. No.
49328-R). Eventually, said appellate court, through its First
Division, affirmed the lower court's decision with the modification
that respondents were ordered to pay jointly and severally in their
"individual and personal capacity" P1,000.00 moral damages to
each of the petitioners considering that the case involved a quasi-
delict (L-44591 Rollo, p. 54).
From that decision, Osmundo G. Rama, interposed an appeal' to
this Court (G.R. No. L-44484). Espina, Garcia,' Mendiola and
Carillo then filed their own petition for review (G.R. No. L-44591).
But before Espina, et al. could file said petition, the province of
Cebu and its Sangguniang Panlalawigan filed their own petition
for review questioning that portion of the appellate court's
decision which ordered the reinstatement with back salaries of
the dismissed employees. Said petition, which was docketed as
G.R. No. L-44572, was dismissed by this Court for lack of merit in
the resolution of October 25, 1976. Entry of judgment was made
on November 24, 1976.
Meanwhile, dismissed employees Froilan Frondoso and Jeremias
Luna, who also had filed their own petition for mandamus in the
Court of First Instance of Cebu, elevated their case to the Court
of Appeals (CA-G.R. No. SP-04649). In its decision, the Court of
Appeals' Ninth Division followed the ruling of its First Division in
CA-G. R. No. 48328-R, held that the wrong committed by the
respondent Public officials was a quasi-delict and ordered the
reinstatement with back salaries of Frondoso and Luna and the
payment in solidum by respondent public officials of P1,000.00
each to Frondoso and Luna as moral damages plus P1,000.00 as
attorney's fees. With the exception of Rama, the respondent
public officials appealed to the Court (G.R. No. L-44842).
Subsequently, the Cebu Assistant Provincial Attorney,
representing the Province of Cebu and its Sangguniang
Panlalawigan, also appealed to this Court from that decision
(G.R. No. L-44894).
On March 28, 1977, this Court resolved to consolidate G.R. Nos.
L- 44484, L-44842, L-44591 and L-44894 considering that said
cases involve the same issues and factual background (L44591,
Rollo, p. 344).
Thereafter, Frondoso and Luna filed a motion to dismiss L-44894
and L-44842. They alleged that as the petition in L44572 had
been dismissed on October 25, 1976; said two cases should
likewise be dismissed because they, together with the private
respondents in L-44572 who, like them, were also permanent
appointees to their respective positions, "were separated from the
service on the same date by the same petitioners" L-44894 Rollo,
p. 140) and therefore, the petitions in L-44894 and L-44842 were
barred by the rule of stare decision
The motion to dismiss, however, was noted in the resolution of
February 17, 1978, it appearing that said two cases had already
been submitted for decision (L-44894 Rollo, p. 148; L-44842
Rollo, p. 139). Frondoso and Luna filed another motion to dismiss
L-44894 but after the petitioners had filed their comment thereon,
said motion to dismiss was also noted in the resolution of
February 22, 1981 (L-44894 Rollo, p. 186).
We find, however, that Frondoso's and Luna's contention that L-
44894 should be dismissed is meritorious. The issues raised in L-
44894 and L- 44572 are the same. In fact, the prayer in the
petition in L-44894 is virtually a verbatim reiteration of that in L-
44572. The allegation of petitioner province of Cebu and its
Sangguniang Panlalawigan that the question of jurisdiction was
not raised in L-44572 (L-44894 Rollo, p. 150) cannot successfully
save L-44894 from dismissal. In their petition, the province of
Cebu and its Sangguniang Panlalawigan merely argued that the
Court of Appeals did not acquire jurisdiction over the case,
considering that Frondoso and Luna's appeal was perfected after
the expiration of the reglementary period and that their brief was
filed one month too late.
However, the trend of the rulings of this Court in matters
pertaining to the timeliness of the perfection of an appeal is to
afford every party-litigant amplest opportunity to present their
case "for the proper and just determination of his cause, freed
from the constraints of technicalities." (Rodriguez vs. Court of
Appeals, L-37522, November 28, 1975, 68 SCRA 262). Applying
the above ruling to this case, the Court of Appeals may not,
therefore, be faulted for assuming jurisdiction over the appeal of
Frondoso and Luna.
Hence, with respect to L-44894, this Court is bound by the
dismissal of L- 44572 and so L-44894 should likewise be
dismissed, as it is hereby dismissed.
Proceeding now to resolve the issue, common to L-44484, L-
44591 and L-44842, which is whether or not Espina, Rama,
Garcia, Mendiola and Carillo are personally liable for damages for
adopting a resolution which abolished positions to the detriment
of the occupants thereof, this Court has held that, at least, in
principle, a public officer by virtue of his office alone, is not
immune from damages in his personal capacity arising from
illegal acts done in bad faith. A different rule would sanction the
use of public office as a tool of oppression (Tabuena vs. Court of
Appeals, L-16290, October 31, 1961, 3 SCRA 413).
Thus, in Correa vs. CFI of Bulacan, L-46096, July 30, 1979, 92
SCRA 312, We held personally liable a mayor who illegally
dismissed policemen even if he had relinquished his position.
Therein, We held that:
A public officer who commits a tort or other
wrongful act, done in excess or beyond the scope
of his duty, is not protected by Ms office and is
personally liable therefor like any private individual
 (Palma vs. Graciano, 99 Phil. 72, 74; Carreon vs.
Province of Pampanga, 99 Phil. 808). This
principle of personal liability has been applied to
cases where a public officer removes another
officer or discharges an employee wrongfully, the
reported cases saying that by reason of non-
compliance with the requirements of law in
respect to removal from office, the officials were
acting outside of their official authority (Stiles vs.
Lowell 233 Mass. 174, 123 NE 615, 4 ALR 1365,
cited in 63 Am. Jur. 2d. 770).
We hold that the petitioners in the instant three cases are
personally liable for damages because of their precipitate
dismissal of provincial employees through an ostensibly legal
means.
The Court of Appeals, whose factual findings are binding on this
Court, found that the provincial employees concerned were
"eased out because of their party affiliation." i.e., they belonged to
the Liberal Party whose presidential candidate then was Sergio
Osmena Jr. (CA Decision in G.R. No. 49328-R, p. 6, L-44591,
Rollo, p. 38). Such act of the petitioners reflected their malicious
intent to do away with the followers of the rival political party so
as to accommodate their own proteges who, it turned out, even
outnumbered the dismissed employees.
Indeed, municipal officers are liable for damages if they act
maliciously or wantonly and if the work which they perform is
done rather to injure an individual than to discharge a public duty
(56 Am. Jur. 2d 334, citing Yearly V. Fink 43 Pa 212). As we have
held in Vda de Laig vs. Court of Appeals, L-26882, April 5, 1978,
82 SCRA 294, 307-308, a public officer is civilly liable for failure
to observe honesty and good faith in the performance of their
duties as public officers or for wilfully or negligently causing
damage to another (Article 20, Civil Code) or for wilfully causing
loss or injury to another in a manner that is contrary to morals,
good customs and/or public policy (Article 21, New Civil Code).
Neither can petitioners shield themselves from liability by invoking
the ruling in the cases of Carino vs. Agricultural Credit and
Cooperative Financing Administration L-23966, May 22, 1969, 28
SCRA 268. In those cases, the erring public officials were sued in
their official capacities whereas in the instant cases, petitioners
were specifically sued in their personal capacities.
For their part, the dismissed employees are entitled to damages
because they have suffered a special and peculiar injury from the
wrongful act of which they complain Mechem, A Treatise on the
Law of Public Offices and Officers, p. 391). It is an undeniable
fact that the dismissed employees who were holding such
positions as foremen, watchmen and drivers, suffered the
uncertainties of the unemployed when they were plucked out of
their positions. That not all of them testified as to the extent of
damages they sustained on account of their separation from their
government jobs, cannot be used as a defense by the petitioners.
Suffice it to state that considering the positions they were holding,
the dismissed employees concerned belong to a low-salaried
group, who, if deprived of wages would generally incur
considerable economic hardships.
Justice demands that they be recompensed for the predicament
they were placed in, apart from the back salaries which they are
entitled to as a matter of right. We are inclined to agree that the
amount of P1,000.00 damages granted to each of them by the
Court of Appeals was fixed by that court judiciously and is a
reasonable sum (Article 2216, Civil Code).
Petitioner Rama's protestations that when he eventually became
the governor of Cebu, he reinstated most of the dismissed
employees through provincial board Resolution No. 392 (L-44484
Rollo, p. 16) cannot erase the fact that he had a hand in the
adoption of Resolution No. 990. His subsequent benevolent act
cannot sufficiently make up for the damage suffered by the
dismissed employees during their period of unemployment.
Apropos the practice of victorious politicians to remove
government employees who did not support them in their
campaign for office, this Court has said: "There are altogether too
many cases of this nature, wherein local elective officials, upon
assumption to office, wield their new-found power indiscriminately
by replacing employees with their own proteges regardless of the
laws and regulations governing the civil service. Victory at the
polls should not be taken as authority for the commission of such
illegal acts." (Nemenzo vs. Sabillano, L-20977, September 7,
1968, 25 SCRA 1.)
WHEREFORE, in L-44894, the petition for review on certiorari is
hereby dismissed for lack of merit. In L-44484, L-44591 and L-
44842, the decision of the First and Ninth Divisions of the Court of
Appeals are hereby AFFIRMED with costs against the petitioners.
The main issue presented in this case is
whether a municipality may expropriate
private property by virtue of a municipal
resolution which was disapproved by the
Sangguniang Panlalawigan. Petitioner seeks
the reversal of the Court of Appeals decision
and resolution, promulgated on July 15,
1992 and October 22, 1992 respectively1,
and a declaration that Municipal Resolution
No. 43-89 of the Bunawan Sangguniang
Bayan is null and void.

SO ORDERED. On July 23, 1989, the Sangguniang Bayan of

the Municipality of Bunawan in Agusan del
G.R. No. 107916. February 20, 1997] Sur passed Resolution No. 43-89,
"Authorizing the Municipal Mayor to Initiate
PERCIVAL MODAY, ZOTICO MODAY the Petition for Expropriation of a One (1)
(deceased) and LEONORA Hectare Portion of Lot No. 6138-Pls-4 along
MODAY, Petitioners, vs. COURT OF the National Highway Owned by Percival
APPEALS, JUDGE EVANGELINE S. Moday for the Site of Bunawan Farmers
YUIPCO OF BRANCH 6, REGIONAL Center and Other Government Sports
TRIAL COURT, AGUSAN DEL SUR AND Facilities."2
MUNICIPALITY OF
BUNAWAN, respondents. In due time, Resolution No. 43-89 was
approved by then Municipal Mayor Anuncio
DECISION C. Bustillo and transmitted to the
Sangguniang Panlalawigan for its approval.
ROMERO, J.:
On September 11, 1989, the Sangguniang
Panlalawigan disapproved said Resolution
and returned it with the comment that
"expropriation is unnecessary considering
that there are still available lots in Bunawan
for the establishment of the government
center."3
chanroblesvirtuallawlibrary
The Municipality of Bunawan, herein public
respondent, subsequently filed a Petition for
Eminent Domain against petitioner Percival
Moday before the Regional Trial Court at
Prosperidad, Agusan del Sur.4 The complaint
was later amended to include the registered
owners, Percival Moday's parents, Zotico
and Leonora Moday, as party defendants.
On March 6, 1991, public respondent
municipality filed a Motion to Take or Enter
Upon the Possession of Subject Matter of
This Case stating that it had already
deposited with the municipal treasurer the
necessary amount in accordance with
Section 2, Rule 67 of the Revised Rules of
Court and that it would be in the
government's best interest for public
respondent to be allowed to take possession
of the property.
Despite petitioners' opposition and after a
hearing on the merits, the Regional Trial
Court granted respondent municipality's
motion to take possession of the land. The
lower court held that the Sangguniang
Panlalawigan's failure to declare the
resolution invalid leaves it effective. It
added that the duty of the Sangguniang
Panlalawigan is merely to review the
ordinances and resolutions passed by the
Sangguniang Bayan under Section 208 (l) of
B.P. Blg. 337, old Local Government Code
and that the exercise of eminent domain is
not one of the two acts enumerated in
Section 19 thereof requiring the approval of
the Sangguniang Panlalawigan.5 The
dispositive portion of the lower court's Order
dated July 2, 1991 reads:
"WHEREFORE, it appearing that the amount
of P632.39 had been deposited as per
Official Receipt No. 5379647 on December
12, 1989 which this Court now determines
as the provisional value of the land, the
Motion to Take or Enter Upon the Possession
of the Property filed by petitioner through
counsel is hereby GRANTED. The Sheriff of
this Court is ordered to forthwith place the
plaintiff in possession
involved.
Let the hearing be set on August 9, 1991 at
8:30 o'clock in the morning for the purpose
of ascertaining the just compensation or fair
market value of the property sought to be
taken, with notice to all the parties
concerned.
SO ORDERED."6 chanroblesvirtuallawlibrary
Petitioners' motion for reconsideration was
denied by the trial court on October 31,
1991.
Petitioners elevated the case in a petition
for certiorari alleging grave abuse of
discretion on the part of the trial court, but
the same was dismissed by respondent
appellate court on July 15, 1992.7 The Court
of Appeals held that the public purpose for
the expropriation is clear from Resolution
No. 43-89 and that since the Sangguniang
Panlalawigan of Agusan del Sur did not
declare Resolution No. 43-89 invalid,
expropriation of petitioners' property could
proceed.
of the property Respondent appellate court also denied
petitioners' motion for reconsideration on
October 22, 1992.8 chanroblesvirtuallawlibrary
Meanwhile, the Municipality of Bunawan had
erected three buildings on the subject
property: the Association of Barangay
Councils (ABC) Hall, the Municipal
Motorpool, both wooden structures, and the
Bunawan Municipal Gymnasium, which is
made of concrete.
In the instant petition for review filed on
November 23, 1992, petitioner seeks the
reversal of the decision and resolution of the
Court of Appeals and a declaration that
Resolution No. 43-89 of the Municipality of
Bunawan is null and void.
On December 8, 1993, the Court issued a
temporary restraining order enjoining and
restraining public respondent Judge
Evangeline Yuipco from enforcing her July 2,
1991 Order and respondent municipality
from using and occupying all the buildings
constructed and from further constructing
any building on the land subject of this
petition.9
chanroblesvirtuallawlibrary
Acting on petitioners' Omnibus Motion for
Enforcement of Restraining Order and for
Contempt, the Court issued a Resolution on
March 15, 1995, citing incumbent municipal
mayor Anuncio C. Bustillo for contempt,
ordering him to pay the fine and to demolish
the "blocktiendas" which were built in
violation of the restraining order.10 chanroblesvirtuallawlibrary
Former Mayor Anuncio C. Bustillo paid the
fine and manifested that he lost in the May
8, 1995 election.11 The incumbent Mayor
Leonardo Barrios, filed a Manifestation,
Motion to Resolve "Urgent Motion for
Immediate Dissolution of the Temporary
Restraining Order" and Memorandum on
June 11, 1996 for the Municipality of
Bunawan.12 chanroblesvirtuallawlibrary
Petitioners contend that the Court of
Appeals erred in upholding the legality of
the condemnation proceedings initiated by
the municipality. According to petitioners,
the expropriation was politically motivated
and Resolution No. 43-89 was correctly
disapproved by the Sangguniang
Panlalawigan, there being other municipal
properties available for the purpose.
Petitioners also pray that the former Mayor
Anuncio C. Bustillo be ordered to pay
damages for insisting on the enforcement of
a void municipal resolution.
The Court of Appeals declared that the
Sangguniang Panlalawigan's reason for
disapproving the resolution "could be
baseless, because it failed to point out which
and where are 'those available lots.'
Respondent court also concluded that since
the Sangguniang Panlalawigan did not
declare the municipal board's resolution as
invalid, expropriation of petitioners' property
could proceed.13
The Court finds no merit in the petition and
affirms the decision of the Court of Appeals.
Eminent domain, the power which the
Municipality of Bunawan exercised in the
instant case, is a fundamental State power
that is inseparable from sovereignty.14 It is
government's right to appropriate, in the
nature of a compulsory sale to the State,
private property for public use or
15
purpose.  Inherently possessed by the
national legislature, the power of eminent
domain may be validly delegated to local
governments, other public entities and
public utilities.16 For the taking of private
property by the government to be valid, the
taking must be for public use and there
must be just compensation.17 chanroblesvirtuallawlibrary
The Municipality of Bunawan's power to
exercise the right of eminent domain is not
disputed as it is expressly provided for in
Batas Pambansa Blg. 337, the Local
Government Code18 in force at the time
expropriation proceedings were initiated.
Section 9 of said law states:
"Section 9. Eminent Domain. A local
government unit may, through its head and
acting pursuant to a resolution of its
sanggunian, exercise the right of eminent
domain and institute condemnation
proceedings for public use or purpose."
What petitioners question is the lack of
authority of the municipality to exercise this
right since the Sangguniang Panlalawigan
disapproved Resolution No. 43-89.
Section 153 of B.P. Blg. 337 provides:
"Sec. 153. Sangguniang Panlalawigan
Review. (1) Within thirty days after
receiving copies of approved ordinances,
resolutions and executive orders
promulgated by the municipal mayor, the
sangguniang panlalawigan shall examine the
documents or transmit them to the
provincial attorney, or if there be none, to
the provincial fiscal, who shall examine them
promptly and inform the sangguniang
panlalawigan in writing of any defect or
impropriety which he may discover therein
and make such comments or
recommendations as shall appear to him
proper.
(2) If the sangguniang panlalawigan shall
find that any municipal ordinance, resolution
or executive order is beyond the power
conferred upon the sangguniang bayan
or the mayor, it shall declare such
ordinance, resolution or executive order
invalid in whole or in part, entering its
actions upon the minutes and advising the
proper municipal authorities thereof. The
effect of such an action shall be to annul the
ordinance, resolution or executive order in
question in whole or in part. The action of
the sangguniang panlalawigan shall be final.
xxx xxx xxx." (Emphasis supplied.)
The Sangguniang Panlalawigan's disapproval
of Municipal Resolution No. 43-89 is an
infirm action which does not render said
resolution null and void. The law, as
expressed in Section 153 of B.P. Blg. 337,
grants the Sangguniang Panlalawigan the
power to declare a municipal resolution
invalid on the sole ground that it is beyond
the power of the Sangguniang Bayan or the
Mayor to issue. Although pertaining to a
similar provision of law but different factual
milieu then obtaining, the Court's
19
pronouncements in Velazco v. Blas,  where
we cited significant early jurisprudence, are
applicable to the case at bar.
"The only ground upon which a provincial
board may declare any municipal resolution,
ordinance, or order invalid is when such
resolution, ordinance, or order is 'beyond
the powers conferred upon the council or
president making the same.' Absolutely no
other ground is recognized by the law. A
strictly legal question is before the provincial
board in its consideration of a municipal
resolution, ordinance, or order. The
provincial (board's) disapproval of any
resolution, ordinance, or order must be
premised specifically upon the fact that such
resolution, ordinance, or order is outside the
scope of the legal powers conferred by law.
If a provincial board passes these limits, it
usurps the legislative functions of the
municipal council or president. Such has
been the consistent course of executive
authority."20
Thus, the Sangguniang Panlalawigan was
without the authority to disapprove
Municipal Resolution No. 43-89 for the
Municipality of Bunawan clearly has the
power to exercise the right of eminent
domain and its Sangguniang Bayan the
capacity to promulgate said resolution,
pursuant to the earlier-quoted Section 9 of
B.P. Blg. 337. Perforce, it follows that
Resolution No. 43-89 is valid and binding
and could be used as lawful authority to
petition for the condemnation of petitioners'
property.
As regards the accusation of political
oppression, it is alleged that Percival Moday
incurred the ire of then Mayor Anuncio C.
Bustillo when he refused to support the
latter's candidacy for mayor in previous
elections. Petitioners claim that then
incumbent Mayor C. Bustillo used the
expropriation to retaliate by expropriating
their land even if there were other
properties belonging to the municipality and
available for the purpose. Specifically, they
allege that the municipality owns a vacant
seven-hectare property adjacent to
petitioners' land, evidenced by a sketch
plan.21
chanroblesvirtuallawlibrary
The limitations on the power of eminent
domain are that the use must be public,
compensation must be made and due
process of law must be observed.22 The
Supreme Court, taking cognizance of such
issues as the adequacy of compensation,
necessity of the taking and the public use
character or the purpose of the taking 23, has
ruled that the necessity of exercising
eminent domain must be genuine and of a
public character.24 Government may not
capriciously choose what private property
should be taken.
After a careful study of the records of the
case, however, we find no evidentiary
support for petitioners' allegations. The
uncertified photocopy of the sketch plan
does not conclusively prove that the
municipality does own vacant land adjacent
to petitioners' property suited to the
purpose of the expropriation. In the
questioned decision, respondent appellate
court similarly held that the pleadings and
documents on record have not pointed out
any of respondent municipality's "other
available properties available for the same
purpose.25 " The accusations of political
reprisal are likewise unsupported by
competent evidence. Consequently, the
Court holds that petitioners' demand that
the former municipal mayor be personally
liable for damages is without basis.
WHEREFORE, the instant petition is hereby
DENIED. The questioned Decision and
Resolution of the Court of Appeals in the
case of "Percival Moday, et al. v.
Municipality of Bunawan, et al." (CA G.R. SP
No. 26712) are AFFIRMED. The Temporary
Restraining Order issued by the Court on
December 8, 1993 is LIFTED.
SO ORDERED.
Sarangani Province, seeks invalidation of the
Resolution of the Ombudsman dated
October 22, 1996, finding him guilty of
grave misconduct prejudicial to the best
interest of the service, and/or gross neglect
of duty, and on that account dismissing him
from the service.

On February 22, 1996, the Sangguniang

Bayan of Malungon, Sarangani Province,
adopted and issued Resolution No. 211 which
G.R. No. 127457. April 13, 1998 -- after declaring in its Whereas
clauses inter alia  that --
MAYOR FELIPE K.
CONSTANTINO, Petitioner, v. Hon. 1) it was the intention of the ** Government
OMBUDSMAN ANIANO DESIERTO, of Malungon to lease/purchase  one (1) fleet
MARGARITO P. GERVACIO, JR., JAIME L. of heavy equipment2 composed of seven (7)
MADRIDANO, PRIMITIVIA L. ESPINOSA, specifically described units;
RAFAEL J. SUSON, SR., PABLO V.
OCTAVIO, LEO G. INGAY, BENJAMIN C. 2) due to the failure of two public biddings,
ASGAPO and WILFRED P. the Municipal Mayor would be authorized to
ESPINOSA, Respondents. enter into a negotiated contract (for said
lease/purchase) ** in behalf of the Municipal
DECISION Government ** ;
NARVASA, C.J.: 3) the lessor/seller should assure that the
heavy equipment is free from defects in
In the special civil action of certiorari at bar
workmanship within the specified warranty
Mayor Felipe K. Constantino of Malungon,
period under normal use, with obligation to
repair or replace any defective parts free of Accordingly, on February 28, 1996 in Davao
charge subject to the terms and conditions City, Mayor Constantino entered into an
stipulated in the contract; agreement with a firm called the
3
Norlovanian Corporation,  for the lease by
4) the contract "must be clear and explicit, the municipality from the latter of seven (7)
acceptable to both parties. and be concurred units of heavy equipment of the types
by the Sangguniang Bayan of ** Malungon specified in the aforesaid Resolution, to
** before implementation;" and wit:4
cräläwvirtualibräry

5) the heavy equipment shall, before (a) one (1) unit payloader;
delivery, be inspected and tested by a
special committee chosen by the Mayor (b) one (1) unit grader;
--authorized Mayor Constatino to enter into
a negotiated contract representing the (c) one (1) unit road roller;
Municipality ** (with) any company dealing
with heavy equipment, said contract to be (d) two (2) units six-wheeler dump trucks;
signed by PBAC members. The resolution, and
however, contained no parameters as to
(e) two (2) units ten-wheeler dump trucks.
rate of rental, period of lease, purchase
price. The Sangguniang Bayan Members
At the same time, and with the
who voted for the resolution were : Vice-
Mayors conforme, the corporation executed
Mayor Primitiva L. Espinosa, and Councilors
a deed of Undertaking binding itself to
Rafael J. Suson, Sr. (Presiding Officer),
convey ownership of the heavy equipment
Benjamin M. Guilley, Nemesio P. Liray,
under lease unto the Lessee at the end of
Nonito V. Nunez, Leo G. Ingay, Cesar B.
the term of said agreement after the Lessee
Nallus, Jr., Benjamin C. Asgapo, and
has faithfully complied with the terms and
Jannette S. Constatino.
conditions thereof, and to execute the
necessary documents to transfer the
ownership ** (thereof).5 The Lease
Agreement was a printed pre-prepared one,
the names of the parties and the notarial
acknowledgment having merely been typed
in additionally. Nothing was stated in the
signed contract about the term of the lease
or the amount of the rental. Neither did the
second document, the Undertaking, set forth
the term of the lease, the rental rate of the
equipment, or the value thereof.
Delivery of all the seven (7) pieces of heavy
equipment was made to the municipality on
March 4, 1996, at which time a document of
Delivery and Acceptance6 was executed over
the signatures of Mayor Constantino and the
President of the lessor company. The
instrument contained:
(a) a list of the equipment,
(b) an averment that the LESSEE (the town
of Malungon) had inspected and accepted
the same which had been found to be in
good condition in accordance with the terms
and conditions of the Lease Agreement, and
(c) an attestation -- reading EQUIPMENT
INSPECTED BY -- signed by four (4)
Municipal Kagawads: Banjamin M. Guilley,
Nonito V. Nunez, Ceasar B. Nallos and
Nemesio P. Liray, as well as by the Municipal
Engineer and the Municipal Treasurer.
Thereafter, and on the strength of another
resolution (No. 38) unanimously approved
on April 18, 1996 by the Sangguniang Bayan
of Malungon -- requesting the Honorable
Municipal Mayor, Felipe K. Constantino, to
operate the newly acquired heavily
equipment of the Municipality of
Malungon leased/purchased from the
7
Norlovanian Corporation  the mayor directed
that the heavy equipment be operated and
used in various projects. The Sangguniang
Bayan Members who voted for the resolution
were: Vice-Mayor Primitiva L. Espinosa, and
Councilors Rafael J. Suson, Sr., Benjamin M.
Guilley, Nemesio P. Liray, Pablo V. Octavio,
Nonito V. Nuez, Leo G. Ingay, Cesar B.
Nallos, Jr., Benjamin C. Asgapo, and
Wilfredo P. Espinosa, ABC.
However, operation of the equipment came
to a halt barely two months later; and this,
because of a third resolution (No. 47) of the
Sangguniang Bayan adopted on June 6,
1996,8 stopping all forms of unauthorized
payment/expenditures relative to the
illegally acquired pool of heavy equipment
by the Municipality of Malungon, Sarangani
Province. The Resolution was grounded on
the following stated premises:
1) a 1995 Resolution adopting Appropriation
Ordinance No. 11 approving General Budget
of 1996; MPC Resolution No. 2 series of
1995 in relation to SB Resolution No. 198,
series of 1995 provided the amount of TWO
MILLION TWO HUNDRED THOUSAND PESOS
(P2,200,00000) for the loan amortization of
the purchase of heavy equipment for five
(5) years but had not been realigned ** re-
programmed and appropriated for lease;
and
2) the pool of heavy equipment ** acquired
was inefficient and inoperative per ocular
inspection, investigation and survey
conducted by the Committee on
Infrastructure of the Sangguniang Bayan of
Malungon and there is no authorized rental
payment/expenditures and approved budget
by the Sangguniang Bayan intended for
lease of such heavy equipment.
The minutes of the Sangguniang Bayan of
Malungon of the Session of June 6, 1996
show that of the nine (9) Sangunian
members present, four (4) voted for the
passage of said resolution, namely
Councilors Octavio, Espinosa, Asgapo and
Ingay, and three abstain(ed:) namely
Councilor Guilley, Nollon, nunez **; (and)
Councilor Liray ** (was) not around during
the votation ** (being) on privilege motion
which was recognized by the Chair (sic).
Vice-Mayor Primitiva L. Espinosa, identified
as Acting Mayor, was recorded as ABSENT9 cräläwvirtualibräry
It appears that earlier -- on April 23, 1996,
five (5) days after Mayor Constantino was
requested by the Sangguniang Bayan to
start using the heavy equipment as above
stated -- there were filed with the Deputy
Ombudsman for Mindanao in Davao City,10 a
Letter-Complaint11 and a Joint
12
Affidavit,  accusing the Mayor and the
President of the Lessor company, Norberto
Lindong,13 of a Violation of Section 3 [e] and
[g] of R.A. No. 3019 otherwise known as the
Anti-Graft and Corrupt Practices Act  --
docketed as Case No. OMB-MIN-ADM-96-
0179 -- and of Grave Misconduct; Conduct
Prejudicial to the Interest of the Service;
and Gross Neglect of Duty --  docketed as
Case No. OMB-min-ADM-96-060. The letter-
complaint was signed by Vice-Mayor
Primitiva L. Espinosa, and to it was
appended a CERTIFICATION signed by Vice-
Mayor and three (3) of the Sangguniang
Bayan Members who, together with the
Vice-Mayor, had approved the first two (2)
Resolutions above mentioned, namely:
Councilors Rafael j. Suson, Sr., Leo G.
Ingay, and Benjamin C. Agaspo. Two other
councilors, Wilfredo P. Espinosa, Pablo V.
Octavio, who had approved the Resolution of
April 18, 1996 requesting Mayor Constantino
to put into operation the heavy equipment
delivered by Norlovanian Corporation also
signed the Certification.
The Joint Affidavit alleged that:
1) Resolution No. 21 authorized Mayor
Constantino to purchase and acquire for the
Municipality of Malungon heavy equipments
to be paid within five (5) years at the yearly
amortization of P2.2 million and for the
ownership thereof to be consolidated and
vested upon the municipality at the end of
fifth year;
2) the resolution also provided that the
Sangguniang Bayan shall concur in the
contract to purchase that shall be entered
into **;
3) contrary to the resolution, Mayor
Constantino entered into lease agreement
with the Norlovanian Corporation over
specific heavy equipment which stipulated a
term of six (6) years, rental at the rate
of P257,111.11 per month; and 20%
Guaranty Deposit of P1,780,000.00 to be
made by the Municipality;
4) the lease agreement contained no
Purchase Option in favor of the Municipality,
and required the property to be returned to
the lessor at the end of the lease;
5) pursuant to the agreement, the
Municipality had already paid to the
Norlovanian Corporation the total sum
of P2,177,070.91 for:
a) 20% Guaranty Deposit P1,780,000.00
b) Rental from March 5 - April 5, 1996 2) the agreement finally reached was (a)
257,111.11 Total cost of equipment is P8,900,000.00;
(b) Norlovanian will charge interest at 18%
c) partial rental covering April 5 to per annum on a diminishing balance, over a
6 year pay-period; and (c) on the first year,
May 6, 1996 162,888.89 the monthly amortization will
be P257,111.11 but starting on the second
Withholding Tax ___
year the amortization will decrease and **
progressively decrease every year;
22,909.
00
3) a Committee created by the Mayor
inspected and accepted the units and issued
TOTAL P2,177,070.91;
a certification attesting to the worthiness
6) Mayor Constantino had thus entered into thereof,16 after which Lindong drew up the
the agreement without authority and lease Agreement on his companys standard
thereby caused and inflicted undue injury to (printed) form, and an Undertaking to
the Municipality **. eventually transfer ownership of the
equipment to the Municipality;
The charges were traversed by His Honor in
a Counter - Affidavit14 filed by him on 4) both instruments were signed not only by
requirement of the Deputy the Mayor and Lindong but also by the
15
Ombudsman.  He asserted that: Members of the PBAC;

1) under authority of Resolution No.21, he
had indeed negotiated with Norberto
Lindong of the Norlovanian Corporation for
the lease and ultimate purchase of the
subject heavy equipment;
5) on February 29, 1996, the Mayor and
Lindong appeared before the Sangguniang
Bayan and explained the terms of the
agreements; present were all the Members
of the Sangunian except Vice-Mayor
Primitiva Espinosa and her spouse, Councilor
Wilfredo Espinosa;
6) the equipment was delivered four (4)
days afterwards after which it was inspected
by a representative of the Commission on
Audit who found the same to be in good
order;
7) the Mayor subsequently ordered the
equipment to be put into operation in
compliance with Resolution No. 38.
On May 31, 1996, respondent Deputy
Ombudsman Gervacio handed down an
Order placing Mayor Constantino under
preventive suspension for six (6) months
without pay effective June 14, 1996. This
order was not enforced, however, because
enjoined by orders17 promulgated by the
Regional Trial Court18 in Special Civil Case
No. 9368 instituted by the Mayor.
On July 22, 1996, Mayor Constantino and
Norberto Lindong filed a motion for the
inhibition of Deputy Ombudsman Gervacio,
alleging that by the issuance of the Order of
preventive Suspension on May 31, 1996
** without any due process of law and
in utter disregard of the provisions of Sec.
23 of RA 6770, the Honorable Deputy
Ombudsman ** had clearly shown his
prejudice against respondent Mayor
19
**.  The motion was however denied in an
Order issued by Graft Investigation Officer
Marco Anacleto P. Buena on July 24,
1996.20cräläwvirtualibräry
On July 26, 1996, Constantino and Lindong
filed a Notice of Appeal -- as regards the
rejection of the motion for inhibition 21 -- and
a Motion to Reset Hearing (after the
resolution of their appeal on the issue of
recusation).22 The latter motion was denied
for lack of merit by the Area Office on July
29, 1996. Said denial was sustained, and
Mayor Constantinos appeal dismissed, by
Order of Investigation Officer Buena, dated
September 10, 1996,23 approved by
Ombudsman Aniano Desierto on October 4,
1996.24cräläwvirtualibräry
Meanwhile, an information for Violation of
the Anti-Graft and Corrupt Practices Act
against both Mayor Constantino and
Norberto Lindong, was filed before the
Sandiganbayan on August 8, 1996, also with
due approval of Ombudsman Desierto.25
Under date of October 22, 1996, Graft
Investigation Officer Buena handed down a
Resolution finding the petitioner GUILTY of
grave misconduct, prejudicial to the best
interest of the service, and gross neglect of
duty, and ordering his dismissal from the
service.26 That Resolution was, on
recommendation of Deputy Ombudsman for
Mindanao Margarito P. Gervacio, Jr. (dated
October, 25, 1996), approved by
Ombudsman Desierto on December 16,
1996.27cräläwvirtualibräry
The Resolution of October 22,
adverted to
1) various dubious legal maneuvers set
off by the respondent (Mayor) in an effort to
stay the iimplementation of the order of
preventive suspension including the filing of
a motion for reconsideration of the
suspension order, the withdrawal of counsel,
the filing of a motion for inhibition of the
investigator and to reset hearings;28
2) what was considered (a) a
cräläwvirtualibräry strangeness of why the respondent (Mayor)
and Mr. Lindong went through all the trouble
to prepare and execute two separate
agreements when they could have
immediately executed the lease-purchase
agreement itself,29 (b) a doubt as to the
validity of the Undertaking **, it being a
unilateral contract as well as an ancillary
one, as opposed to the principal contract
which is the lease agreement, in addition to
not being supported by a
30
consideration;  and (c) the omission of the
assent of the Sangguniang Bayan to the
contract before its implementation.31 cräläwvirtualibräry
1996 On the basis thereof, DILG Regional Director
Jaime L. Madridano of Region XI based in
Davao City, sent a Memorandum Order
dated December 27, 1996 to Governor
Priscilla L. Chiongbian of Sarangani
Province, directing her to enforce the
directive for Mayor Constantinos dismissal
and to install the Vice Mayor in his
place.32 he also issued a Memorandum to
Mayor Constantino directing him to turn
over the functions of (his) office to the vice-
mayor (Primitiva L. Espinosa) pursuant to
Sec. 44 of RA 7160 **.33 However, this
resolution of dismissal has not been
implemented because, as Mayor Constantino
himself states,34 after DILG Director
Madridano was advised of the institution of
the action at bar in this Court, he did not
insist anymore on the execution of the
Resolution (of dismissal) in question.
Mayor Constantino has appealed the
Resolution approved by Ombudsman
Desierto on December 16, 1996 -- removing
him from his position as Municipal Mayor --
by filing the petition for certiorari  at
bar.35 He has impleaded as respondents the
Ombudsman, Deputy Ombudsman Gervacio,
Jr., and the complainants in the
administrative case: Vice-Mayor Espinosa,
and Councilors Madridano, Octavio, Ingay,
Asgapo, Espinosa and Suson, Sr. And he
cites the following as special and important
reasons to justify a review and nullification
of the Resolution issued by respondents
Desierto and Gervacio, to wit:
(1) Petitioner was denied his constitutional
right to due process of law when his Motion
for Inhibition, Notice of Appeal and Motion
to Reset Hearing were denied outright by
respondent Gervacio (or graft Investigation
Officer Buena) and not reviewed by
respondent Ombudsman Desierto; and
(2) Respondents Desierto and Gervacio
gravely abused their discretion when they
pointedly ignored or disregarded the fact
that petitioner merely acted in accordance
with Res. No. 21, Series of 1996 and Res.
no. 38, Series of 1996 of the Municipal
Council of Malungon, Sarangani, and that he
did not exceed his authority with respect to
the transaction and the use of the seven (7)
units of heavy equipment acquired by the
town.
Private respondents Primitiva Espinosa,
Rafael Suson, Pablo Octavio, Leo Ingay,
Benjamin Asgapo and Wilfredo Espinosa filed
a Motion to Dismiss, dated February 3,
1997, which this Court resolved on February
25, 1997, to consider as their comment on
the petition. Regional Director Jaime L.
Madridano submitted his comment on the
petition, dated February 21, 1997. The
Solicitor General filed a comment in behalf
of public respondents, dated April 2, 1997.
Mayor Constantino then presented a Reply, accordance with the rules or to a
dated June 21, 1997, to private respondents special instructions or directives of the
Motion to Dismiss, to which private Office of the Ombudsman. Pending
respondents submitted a Rejoinder dated investigation, the deputy or
July 2, 1997. investigator may issue orders and
provisional remedies which are
The first contention of Mayor Constantino -- immediately executory subject to
that it was error for his motions for review by the Ombudsman. Within three
inhibition and to reset hearing not (to be) (3) days after concluding the investigation,
reviewed by respondent Ombudsman the deputy or investigator shall transmit,
Desierto -- is unmeritorious, and is quickly together with the entire records of the case,
disposed of by reference to the terms of his report and conclusions to the Office of
Section 28 of Republic Act No. 6770, viz.:36
cräläwvirtualibräry

the Ombudsman. Within five (5) days after

SEC 28. Investigation in Municipalities,
Cities and Provinces. --The Office of the
Ombudsman may establish offices in
municipalities, cities and province outside
Metropolitan Manila, under the immediate
supervision of the Deputies for Luzon,
Visayas and Mindanao, where necessary as
determined by the Ombudsman. The
investigation of complaints may be
assigned to the regional or sectoral
deputy concerned or to special
investigator who shall proceed in
accordance with the rules or special
investigator who shall proceed in
receipt of said report, the Ombudsman shall
render the appropriate order, directive or
decision.
The authority of the investigator (Buena) to
issue the challenged order. Pending
investigation of the administrative case
against Mayor Constantino, cannot thus be
gainsaid being specifically conferred by the
provision just quoted. Indeed, any such
order is, according to said provision,
immediately executory, subject only to
review by the Ombudsman
Prescinding therefrom, the fact is, as already The explicit terms of Resolution No. 21,
stated, that the impugned order was Series of 1996 clearly authorized Mayor
actually reviewed by a superior officer, Constantino to lease/purchase  one (1) fleet
Director Antonio E. Valenzuela (September of heavy equipment composed of seven (7)
13, 1996), then recommended for approval generally described units, through
38
by Deputy Ombudsman Gervacio, and a negotiated contract.  That resolution, as
ultimately approved by Ombudsman observed at the outset, contained no
37
Desierto on October 4, 1996.  The Mayors parameters as to rate of rental, period of
motions therefore received due attention lease, purchase price. Pursuant thereto,
and consideration although resolved Mayor Constantino, representing the
adversely to him. There is no occasion to Municipality of Malungon, and Norbeto
speak of a denial of due process. Lindong, representing the Norlivanian
Corporation, executed two written
More persuasive is the Mayors second instruments of the same date and
contention that no liability, whether criminal occasion, viz.:
or administrative, may be imputed to him
since he merely complied with the mandate One  -- an agreement(on a standard printed
of Resolution No. 21, series of 1996 and form) dated February 28, 1996 for
Resolution No. 38, series of 1996, of the the lease by the corporation to the
Municipal Council; and that the charges municipality of heavy equipment of the
leveled against him are politically motivated. number and description required by
A thorough examination of the records Resolution no. 21, and
convinces this Court that the evidence
against him is inadequate to warrant his Two  -- an undertaking for the subsequent
dismissal from the service on the specified conveyance and transfer of ownership of the
grounds of grave misconduct, conduct equipment to the municipality at the end of
prejudicial to the best interest of the service the term of the lease.
and gross neglect of duty.
That the Members of the Sangguniang
Bayan knew of this lease/purchase is
evident from Resolution No. 38, Series of
1996 unanimously enacted by them shortly
after delivery of the equipment. 39 In that
resolution they (1) declared that the
Municipal Government ** has just acquired
its fleet of heavy
equipment  leased/purchased  from the
Norlovanian Corporation, and (2) requested
Mayor Constantino to operate the newly
acquired heavy
equipment ** leased/purchased from the
Norlovanian Corporation. The Resolution is
consistent with the allegations of Mayor
Constantino -- which in any event are not
denied by the Councilors or Vice-Mayor
Espinosa -- that:
1) the equipment was delivered to the
Municipality by Norlovanian Corporation on
February 28, 1996 and duly inspected by
Councilors Guilley, Runez, Nollos and Liray,
as well as the Municipal Engineer and the
Municipal Treasurer;
2) prior to the delivery of the units, the Vice
Mayor and other Members of the
Sangguniang Bayan had opportunity to read
the Lease Agreement as well as the
Undertaking but then raised no objections
thereto;
3) neither did they raise any objections (a)
at the session of the Municipal Council on
February 29, 1996, when Norberto Lindong
explained the terms of the negotiated
contract of lease/purchase, or (b) at the
time that the units were delivered and
inspected by designated municipal officials.
Now, it is germane to advert to the
deplorable inaccuracies in the Joint Affidavit
of private respondents (P.L. Espinosa,
Suson, Sr., Ingay, W. P. Espinosa, Octavio,
Asgapo)40 submitted as part of their
complaint in the Ombudsmans Office. The
affidavit contains a clearly distorted version
of Resolution No. 21 of February 22, 1996.
In that document the affiants described
Resolution No. 21 as authorizing Mayor
Constantino to purchase and acquire **
heavy equipments (sic) to be paid within
five (5) years at the yearly amortization
of P2.2 million **. This is a misleading
reading of Resolution No. 21. As the most
cursory perusal of that resolution at once
discloses, what the Mayor was thereby
empowered to do was to enter into a
negotiated contract in the Municipalitys
behalf with interested parties, in line with
the expressed wish of the Municipality to
lease/purchase one (1) fleet of heavy
equipment ** -- not simply to purchase and
acquire said equipment (as complainant
Councilors aver). Neither does Resolution
No. 21 state (contrary to complainants
description of it) that the price shall be paid
within five (5) years at the yearly
amortization of P2.2 million **; indeed. as
already above stressed, the resolution is
completely silent as regards any terms and
conditions of the negotiated contract that
the Mayor was assigned to execute in the
towns behalf. Such obvious distortions
cannot but erode the complainant councilors
credibility and bona fides.
It is also relevant to draw attention to the
flagrantly inaccurate statements and
inferences about the Mayors negotiated
contract regarding the heavy equipment,
contained in Resolution No. 47 approved
only by four (4) Members of the Municipal
Council at its session of June 6, 1996 (the
four (4) being Councilors Octavio, Espinosa,
Asgapo and Ingay).41 That Resolution No.
47, it will be recalled, stopped all rental
payment/expenditures relative to the pool of
heavy equipment of the Norlovanian
Company. The stoppage was based on prior
resolutions of the Council -- allegedly setting
down the terms under which the heavy
equipment should be acquired, and which
terms were supposedly violated by the
Mayor. but -- unaccountably and gain
indicative of bad faith, if not malice, on the
part of private respondents -- Resolution No.
47 made absolutely no reference to the two
(2) resolution which on their face justify the
Mayors contract with Norlovanian
Corporation, to wit: (1) Resolution No. 21
which, having been enacted after  the cited
resolutions, must be deemed to have
superseded them, and which, to repeat,
motivated and constitutes the justification
for the lease-purchase agreement entered
into by the Mayor and Norlovanian
Corporation, and (2) Resolution No. 38 in
which the Councilors not only expressly
acknowledged that the municipal
government ** (had) just acquired its fleet
of heavy equipment leased/purchased from
the Norlovanian Corporation, but
also requested ** (the) Mayor ** to operate
the newly acquired heavy equipment of the
municipality  leased/purchased  from the
42
Norlovanian Corporation. cräläwvirtualibräry
In light of the foregoing facts, which appear
to the Court to be quite apparent on the
record, it is difficult to perceive how the
Office of the Ombudsman could have arrived
at a conclusion of any wrongdoing by the
Mayor in relation to the transaction in
question. It is difficult to see how the
transaction between the Mayor and
Norlovanian Corporation -- entered into
pursuant to Resolution No. 21 -- and tacitly
accepted and approved by the town Council
through its Resolution No. 38 -- could be
deemed an infringement of the same
Resolution No. 21. In truth, an examination
of the pertinent writings (the resolutions,
the two (2) instruments constituting the
negotiated contract, and the certificate of
delivery) unavoidably confirms their
integrity and congruity. It is, in fine, difficult
to see how those pertinent written
instruments, could establish a prima
facie case to warrant the preventive
suspension of Mayor Constantino. A person
with the most elementary grasp of the
English language would, from merely
scanning those material documents, at once
realize that the Mayor had done nothing but
carry out the expressed wishes of the
Sangguniang Bayan.
It would appear that Graft Investigator
Buena, who drew up the Resolution
(eventually approved by the Ombudsman) --
finding Mayor Constantino guilty of grave
misconduct or gross neglect of duty -- might
have been carried away by his disapproval
of what he thought to be various dubious
maneuvers to delay the early and expedient
disposition of ** (the) case resorted to by
the Mayor through his various counsels. How
those maneuvers (assuming their
description as dilatory to be correct) could
affect the intrinsic character of the evidence
submitted by the parties is, however, quite
beyond the Court.
The investigator also opined that Resolution
No. 21 should be interpreted in light of other
official documents, executed a year earlier.
He does not explain why he did not adopt
the more obvious construction of Resolution
No. 21 indicated by the elementary doctrine
that it is within the power and prerogative of
the town council to repeal its prior acts,
either expressly, or by the passage of
essentially inconsistent resolutions. When
the town council passed Resolution No. 21
without any mention whatever of those prior
official documents respecting the acquisition
to heavy equipment, the evident intention
was to supersede them and to have such
acquisition governed solely by Resolution
No. 21. This conclusion is strongly supported
by the fact that the Sangunian expressly
admitted -- in the Second Whereas Clause of
its Resolution No. 21 -- that there had been
a failure of bidders to submit bids despite of
two biddings ... public announcement (sic)
-- the two biddings being obviously related
to said earlier official acts of the town
council. The conclusion is further bolstered
by the fact that the Council, with full
awareness of said negotiated contract, and
of the delivery of equipment thereunder,
had requested the Mayor to put the
equipment into operation for the town
projects. The Court is thus satisfied that it
was in fact the Councils intention, which it
expressed in clear language, to confer on
the Mayor ample discretion to execute a
negotiated contract with any interested
party, without regard to any official acts of
the Council prior to Resolution No. 21.
It is also difficult to see why the patent
inaccuracies in the affidavit-complaint and
Resolution No. 4743 were ignored -- as
difficult to understand how the execution of
two writings to embody one contract of
lease/purchase could be regarded as fatally
defective, and even indicative of a criminal
conspiracy, or why said two writing should
be interpreted in such a way as to magnify
their seeming inconsistencies. the
fundamental and familiar legal principle --
which the Office of the Ombudsman ignored
-- is that it is perfectly legitimate for a
bilateral contract to be embodied in Two or
more separate writings, and that in such an
event the writings should be read and
interpreted together in such a way as to
eliminate seeming inconsistencies and
render the parties intention effectual.
The statement in the appealed Resolution --
as to the absence of prior consent of the
Council to the negotiated contract executed
by Mayor Constantino and Norlovanian
Corporation -- flies in the teeth of the
evidence; there is unrebutted proof that the
heavy equipment delivered to the
Municipality pursuant to the contract, was
inspected by designated councilors and
municipal officers; that shortly thereafter,
the negotiated contract -- composed of two
documents -- was explained and discussed
at the session of the town Council of
February 29, 1996; and that afterwards the
Council requested mayor Constantino to put
the equipment into operation.
The Court thus considers the ratiocinations
and conclusion in the challenged resolution
to be so gravely and egregiously in error as
to make necessary said issuances
invalidation by the extraordinary writ
of certiorari.
The private respondents amazing turn-about
is patent upon the record, and is branded by
Mayor Constantino as a cunning and
treacherous political maneuver -- an
attempted coup to oust him from his
position as Mayor otherwise than through
the normal process of election. Be this as it
may, the Court cannot and will not allow
itself to be made an instrument of politics,
nor be privy to any attempt at the
perpetration of injustice.
In view of all the foregoing, the assailed
Resolution of the respondent ombudsman
dated October 22, 1996 dismissing
petitioner from the service, as well as the
Order of preventive suspension dated May
31, 1996, are REVERSED and SET ASIDE
and petitioner is EXONERATED from the
administrative charges against him in CASE
NO. OMB-MIN-ADM-96-060.
SO ORDERED.
Cebu v. iac
GUTIERREZ, JR., J.:
This is a petition to review the decision of the respondent
Intermediate Appellate Court in A.C. G.R. CV No. 66502 entitled
"Governor Rene Espina, et. at v. Mayor Sergio Osmeña, Jr., et.
al, Atty. Pablo P. Garcia v. Province of Cebu" 1 affirming with modification
the order of the Court of First Instance of Cebu, Branch VII, granting respondent Pablo P.
Garcia's claim for compensation for services rendered as counsel in behalf of the
respondent Province of Cebu.
The facts of the case are not in dispute. On February 4, 1964,
while then incumbent Governor Rene Espina was on official
business in Manila, the Vice-Governor, Priscillano Almendras and
three (3) members of the Provincial Board enacted Resolution
No. 188, donating to the City of Cebu 210 province. owned lots all
located in the City of Cebu, with an aggregate area of over 380
hectares, and authorizing the Vice-Governor to sign the deed of
donation on behalf of the province. The deed of donation was
immediately executed in behalf of the Province of Cebu by Vice-
Governor Almendras and accepted in behalf of the City of Cebu
by Mayor Sergio Osmeña, Jr. The document of donation was
prepared and notarized by a private lawyer. The donation was
later approved by the Office of the President through Executive
Secretary Juan Cancio.
According to the questioned deed of donation the lots donated
were to be sold by the City of Cebu to raise funds that would be
used to finance its public improvement projects. The City of Cebu
was given a period of one (1) year from August 15, 1964 within
which to dispose of the donated lots.
Upon his return from Manila, Governor Espina denounced as
Legal and immoral the action of his colleagues in donating
practically all the patrimonial property of the province of Cebu,
considering that the latter's income was less than one. fourth (1/4)
of that of the City of Cebu.
To prevent the sale or disposition of the lots, the officers and
members of the Cebu Mayor's League (in behalf of their
respective municipalities) along with some taxpayers, including
Atty. Garcia, filed a case seeking to have the donation declared
illegal, null and void. It was alleged in the complaint that the
plaintiffs were filing it for and in behalf of the Province of Cebu in
the nature of a derivative suit. Named defendants in the suit were
the City of Cebu, City Mayor Sergio Osmeña, Jr. and the Cebu
provincial officials responsible for the donation of the province-
owned lots. The case was docketed as Civil Case No. R-8669 of
the Court of First Instance of Cebu and assigned to Branch VI
thereof.
Defendants City of Cebu and City Mayor Osmeña, Jr. filed a
motion to dismiss the case on the ground that plaintiffs did not
have the legal capacity to sue.
Subsequently, in an order, dated May, 1965, the court dismissed
Case No. R-8669 on the ground that plaintiffs were not the real
parties in interest in the case. Plaintiffs filed a motion for
reconsideration of the order of dismissal. This motion was denied
by the Court.
Meanwhile, Cebu City Mayor Sergio Osmeña, Jr. announced that
he would borrow funds from the Philippine National Bank (PNB)
and would use the donated lots as collaterals. In July, 1965, the
City of Cebu advertised the sale of an the lots remaining unsold.
Thereupon, Governor Espina, apprehensive that the lots would
be irretrievably lost by the Province of Cebu, decided to go to
court. He engaged the services of respondent Garcia in filing and
prosecuting the case in his behalf and in behalf of the Province of
Cebu.
Garcia filed the complaint for the annulment of the deed of
donation with an application for the issuance of a writ of
preliminary injunction, which application was granted on the same
day, August 6, 1965.
The complaint was later amended to implead Cebu City Mayor
Carlos P. Cuizon as additional defendant in view of Fiscal
Numeriano Capangpangan's manifestation stating that on
September 9, 1965, Sergio Osmeña, Jr. filed his certificate of
Candidacy for senator, his position/office having been assumed
by City Mayor Carlos P. Cuizon.
Sometime in 1972, the Provincial Board passed a resolution
authorizing the Provincial Attorney, Alfredo G. Baguia, to enter his
appearance for the Province of Cebu and for the incumbent
Governor, Vice-Governor and members of the Provincial Board in
this case.
On January 30, 1973, Alfredo G. Baguia, Provincial Attorney of
the Province of Cebu, entered his appearance as additional
counsel for the Province of Cebu and as counsel for Governor
Osmundo Rama, Vice-Governor Salutario Fernandez and Board
Members Leonardo Enad, Guillermo Legazpi, and Rizalina
Migallos.
On January 31, 1973, Atty. Baguia filed a complaint in
intervention stating that intervenors Province of Cebu and
Provincial Board of Cebu were joining or uniting with original
plaintiff, former Governor of Cebu, Rene Espina. They adopted
his causes of action, claims, and position stated in the original
complaint filed before the court on August 6, 1965.
On June 25, 1974, a compromise agreement was reached
between the province of Cebu and the city of Cebu. On July 15,
1974, the court approved the compromise agreement and a
decision was rendered on its basis.
On December 4, 1974, the court issued an order directing the
issuance of a writ of execution to implement the decision dated
July 15, 1974, to wit:
1. Ordering the City of Cebu to return and deliver
to the Province of Cebu all the lots enumerated in
the second paragraph hereof;
2. Ordering the Province of Cebu to pay the
amount of One Million Five Hundred Thousand
Pesos (P1,500,000.00) to the City of Cebu for and
in consideration of the return by the latter to the
former of the aforesaid lots;
3. Declaring the retention by the City of Cebu of
the eleven (11) lots mentioned in paragraph No. 1
of the compromise agreement, namely, Lot Nos.
1141, 1261, 1268, 1269, 1272, 1273, 917, 646-A,
646A-4-0 and 10107-C;
4. Ordering the City of Cebu or the City Treasurer
to turn over to the Province of Cebu the amount of
P187948.93 mentioned in Annex "A" of the
defendants manifestation dated October 21, 1974;
5. Declaring the City of Cebu and an its present
and past officers completely free from liabilities to
third persons in connection with the
aforementioned lots, which liabilities if any, shall
be assumed by the Province of Cebu;
6. Ordering the Register of Deeds of the City of
Cebu to cancel the certification of titles in the
name of the City of Cebu covering the lots
enumerated in the second paragraph of this order
and to issue new ones in lieu thereof in the name
of the Province of Cebu.
For services rendered in Civil Case no. 238-BC, CFI of Cebu,
respondent Pablo P. Garcia filed through counsel a Notice of
Attorney's Lien, dated April 14, 1975, praying that his statement
of claim of attorney's lien in said case be entered upon the
records thereof, pursuant to Section 37, Rule 138 of the Rules of
Court.
To said notice, petitioner Province of Cebu filed through counsel,
its opposition dated April 23, 1975, stating that the payment of
attorney's fees and reimbursement of incidental expenses are not
allowed by law and settled jurisprudence to be paid by the
Province. A rejoinder to this opposition was filed by private
respondent Garcia.
After hearing, the Court of First Instance of Cebu, then presided
over by Judge Alfredo Marigomen, rendered judgment dated May
30, 1979, in favor of private respondent and against petitioner
Province of Cebu, declaring that the former is entitled to recover
attorney's fees on the basis of quantum meruit and fixing the
amount thereof at P30,000.00.
Both parties appealed from the decision to the Court of Appeals.
In the case of private respondent, however, he appealed only
from that portion of the decision which fixed his attorney's fees at
P30,000.00 instead of at 30% of the value of the properties
involved in the litigation as stated in his original claim
On October 18, 1985, the Intermediate Appellate Court rendered
a decision affirming the findings and conclusions of the trial court
that the private respondent is entitled to recover attorney's fees
but fixing the amount of such fees at 5% of the market value of
the properties involved in the litigation as of the date of the filing
of the claim in 1975. The dispositive portion of the decision reads:
WHEREFORE, except for the aforementioned
modification that the compensation for the
services rendered by the Claimant Atty. Pablo P.
Garcia is fixed at five percent (5%) of the total fair
market value of the lots in question, the order
appealed from is hereby affirmed in all other
respects.
Both parties went to the Supreme Court with private respondent
questioning the fixing of his attorney's fees at 5% instead of 30%
of the value of the properties in litigations as prayed for in his
claims. However, the private respondent later withdrew his
petition in G.R. No. 72818 with the following explanation:
That after a long and serious reflection and
reassessment of his position and intended course
of action and, after seeking the views of his
friends, petitioner has come to the definite
conclusion that prosecuting his appeal would only
result in further delay in the final disposition of his
claim (it has been pending for the last 10 years 4
in the CFI and 6 in the Court of Appeals, later
Intermediate Appellate Court) and that it would be
more prudent and practicable to accept in full the
decision of the Intermediate Appellate Court.
Hence, only the petition of the Province of Cebu is pending before
this Court.
The matter of representation of a municipality by a private
attorney has been settled in Ramos v. Court of Appeals (108
SCRA 728). Collaboration of a private law firm with the fiscal and
the municipal attorney is not allowed. Section 1683 of the
Revised Administrative Code provides:
.Section 1683. Duty of fiscal to represent
provinces and provincial subdivisions in litigation.
— The provincial fiscal shall represent the
province and any municipality, or municipal district
thereof in any court, except in cases whereof
original jurisdiction is vested in the Supreme Court
or in cases where the municipality, or municipal
district in question is a party adverse to the
provincial government or to some other
municipality, or municipal district in the same
province. When the interests of a provincial
government and of any political division thereof
are opposed, the provincial fiscal shall act on
behalf of the province.
When the provincial fiscal is disqualified to serve
any municipality or other political subdivision of a
province, a special attorney may be employed by
its council
The above provision, complemented by Section 3 of the Local
Autonomy Law, is clear in providing that only the provincial fiscal
and the municipal attorney can represent a province or
municipality in its lawsuits. The provision is mandatory. The
municipality's authority to employ a private lawyer is expressly
limited only to situations where the provincial fiscal is disqualified
to represent it (De Guia v. The Auditor General 44 SCRA 169;
Municipality of Bocaue, et. al. v. Manotok, 93 Phil. 173; Enriquez,
Sr., v. Honorable Gimenez, 107 Phil. 932) as when he represents
the province against a municipality.
The lawmaker, in requiring that the local government should be
represented in its court cases by a government lawyer, like its
municipal attorney and the provincial fiscal intended that the local
government should not be burdened with the expenses of hiring a
private lawyer. The lawmaker also assumed that the interests of
the municipal corporation would be best protected if a
government lawyer handles its litigations. It is to be expected that
the municipal attorney and the fiscal would be faithful and
dedicated to the corporation's interests, and that, as civil service
employees, they could be held accountable for any misconduct or
dereliction of duty (See Ramos v. Court of Appeals, supra).
However, every rule is not without an exception, Ibi quid
generaliter conceditur; inest haec exceptio, si non aliquid sit
contra jus fasque (Where anything is granted generally, this
exception is implied; that nothing shall be contrary to law and
right). Indeed, equity, as well as the exceptional situation facing
us in the case at bar, require a departure from the established
rule.
The petitioner anchors its opposition to private respondent's claim
for compensation on the grounds that the employment of claimant
as counsel for the Province of Cebu by then Governor Rene
Espina was unauthorized and violative of Section 1681 to 1683 in
relation to Section 1679 of the Revised Administrative Code and
that the claim for attorney's fees is beyond the purview of Section
37, Rule 138 of the Rules of Court.
It is argued that Governor Espina was not authorized by the
Provincial Board, through a board resolution, to employ Atty.
Pablo P. Garcia as counsel of the Province of Cebu.
Admittedly, this is so.
However, the circumstances obtaining in the case at bar are such
that the rule cannot be applied. The Provincial Board would never
have given such authorization. The decision of the respondent
court elucidates the matter thus:
... The provisions of Sections 1681 to 1683 of the
Revised Administrative Code contemplate a
normal situation where the adverse party of the
province is a third person as in the case
of Enriquez v. Auditor General, 107 Phil 932. In
the present case, the controversy involved an
intramural fight between the Provincial Governor
on one hand and the members of the Provincial
Board on the other hand. Obviously it is
unthinkable for the Provincial Board to adopt a
resolution authorizing the Governor to employ
Atty. Garcia to act as counsel for the Province of
Cebu for the purpose of filing and prosecuting a
case against the members to the same Provincial
Board According to the claimant Atty. Garcia, how
can Governor Espina be expected to secure
authority from the Provincial Board to employ
claimant as counsel for the Province of Cebu
when the very officials from whom authority is to
be sought are the same officials to be sued, It is
simply impossible that the Vice-Governor and the
members of the Provincial Board would pass a
resolution authorizing Governor Espina to hire a
lawyer to file a suit against themselves.
xxx xxx xxx
 Under Section 2102 of the Revised Administrative
Code it is the Provincial Board upon whom is
vested the authority "to direct, in its discretion, the
bringing or defense of civil suits on behalf of the
Provincial Governor ___." Considering that the
members of the Provincial Board are the very
ones involved in this case, they cannot be
expected to directed the Provincial Fiscal the filing
of the suit on behalf of the provincial government
against themselves. Moreover, as argued by the
claimant, even if the Provincial Fiscal should side
with the Governor in the bringing of this suit, the
Provincial Board whose members are made
defendants in this case, can simply frustrate his
efforts by directing him to dismiss the case or by
refusing to appropriate funds for the expenses of
the litigation.
... Consequently, there could have been no
occasion for the exercise by the Provincial Fiscal
of his powers and duties since the members of the
Provincial Board would not have directed him to
file a suit against them.
A situation obtains, therefore, where the Provincial Governor, in
behalf of the Province of Cebu, seeks redress against the very
members of the body, that is, the Provincial Board, which, under
the law, is to provide it with legal assistance. A strict application of
the provisions of the Revise Administrative Code on the matter
would deprive the plaintiffs in the court below of redress for a
valid grievance. The provincial board authorization required by
law to secure the services of special counsel becomes an
impossibility. The decision of the respondent court is grounded in
equity — a correction applied to law, where on account of the
general comprehensiveness of the law, particular exceptions not
being provided against, something is wanting to render it perfect.
It is also argued that the employment of claimant was violative of
sections 1681 to 1683 of the Revised Administrative Code
because the Provincial Fiscal who was the only competent official
to file this case was not disqualified to act for the Province of
Cebu.
Respondent counsel's representation of the Province of Cebu
became necessary because of the Provincial Board's failure or
refusal to direct the bringing of the action to recover the
properties it had donated to the City of Cebu. The Board more
effectively disqualified the Provincial Fiscal from representing the
Province of Cebu when it directed the Fiscal to appear for its
members in Civil Case No. R-8669 filed by Atty. Garcia, and
others, to defend its actuation in passing and approving Provincial
Board Resolution No. 186. The answer of the Provincial Fiscal on
behalf of the Vice-Governor and the Provincial Board members
filed in Civil Case No. R-8669; (Exhibit "K") upholds the validity
and legality of the donation. How then could the Provincial Fiscal
represent the Province of Cebu in the suit to recover the
properties in question? How could Governor Espina be
represented by the Provincial Fiscal or seek authorization from
the Provincial Board to employ special counsel? Nemo tenetur ad
impossibile (The law obliges no one to perform an
impossibility). Neither could a prosecutor be designated by the
lwphl@itç  
Department of Justice. Malacañang had already approved the
questioned donation
Anent the question of liability for respondent counsel's services,
the general rule that an attorney cannot recover his fees from one
who did not employ him or authorize his employment, is subject
to its own exception.
Until the contrary is clearly shown an attorney is presumed to be
acting under authority of the litigant whom he purports to
represent (Azotes v. Blanco, 78 Phil. 739) His authority to appear
for and represent petitioner in litigation, not having been
questioned in the lower court, it will be presumed on appeal that
counsel was properly authorized to file the complaint and appear
for his client. (Republic v. Philippine Resources Development
Corporation, 102 Phil. 960) Even where an attorney is employed
by an unauthorized person to represent a client, the latter will be
bound where it has knowledge of the fact that it is being
represented by an attorney in a particular litigation and takes no
prompt measure to repudiate the assumed authority. Such
acquiescence in the employment of an attorney as occurred in
this case is tantamount to ratification (Tan Lua v. O' Brien, 55
Phil. 53). The act of the successor provincial board and provincial
officials in allowing respondent Atty. Pablo P. Garcia to continue
as counsel and in joining him in the suit led the counsel to believe
his services were still necessary.
We apply a rule in the law of municipal corporations: "that a
municipality may become obligated upon an implied contract to
pay the reasonable value of the benefits accepted or appropriated
by it as to which it has the general power to contract. The doctrine
of implied municipal liability has been said to apply to all cases
where money or other property of a party is received under such
circumstances that the general law, independent of express
contract implies an obligation upon the municipality to do justice
with respect to the same." (38 Am Jur. Sec. 515, p. 193):
The obligation of a municipal corporation upon the
doctrine of an implied contract does not connote
an enforceable obligation. Some specific principle
or situation of which equity takes cognizance must
be the foundation of the claim. The principle of
liability rests upon the theory that the obligation
implied by law to pay does not originate in the
unlawful contract, but arises from considerations
outside it. The measure of recovery is the benefit
received by the municipal corporation. The
amount of the loan, the value of the property or
services, or the compensation specified in the
contract, is not the measure. If the price named in
the invalid contract is shown to be entirely fair and
reasonable not only in view of the labor done, but
also in reference to the benefits conferred, it may
be taken as the true measure of recovery.
The petitioner can not set up the plea that the contract was ultra
vires and still retain benefits thereunder. Having regarded the
contract as valid for purposes of reaping some benefits, the
petitioner is estopped to question its validity for the purposes of
denying answerability.
The trial court discussed the services of respondent Garcia as
follows:
... Thus because of his effort in the filing of this
case and in securing the issuance of the
injunction preventing the City of Cebu and Sergio
Osmeña, Jr., from selling or disposing the lots to
third parties, on the part of the members of the
Provincial Board from extending the date of the
automatic reversion beyond August 15, 1965, on
the part of the Register of Deeds — from effecting
the transfer of title of any of the donated lots to
any vendee or transferee, the disposition of these
lots by the City of Cebu to third parties was
frustrated and thus: saved these lots for their
eventual recovery by the province of Cebu.
Actually it was Governor Espina who filed the case against Cebu
City and Mayor Osmeña. Garcia just happened to be the lawyer,
Still Atty. Garcia is entitled to compensation. To deny private
respondent compensation for his professional services would
amount to a deprivation of property without due process of law
(Cristobal v. Employees' Compensation Commission, 103 SCRA
329).
The petitioner alleges that although they do not deny Atty.
Garcia's services for Governor Espina (who ceased to be such
Governor of Cebu on September 13, 1969) and the original
plaintiffs in the case, "it cannot be said with candor and fairness
that were it not for his services the lots would have already been
lost to the province forever, because the donation itself he was
trying to enjoin and annul in said case was subject to a reversion
clause under which lots remaining undisposed of by the City as of
August 15, 1965 automatically reverted to the province and only
about 17 lots were disposed of by August 15, 1965." We quote
respondent counsel's comment with approval:
xxx xxx xxx
While it is true that the donation was subject to a
reversion clause, the same clause gave the
Provincial Board the discretion to extend the
period of reversion beyond August 15, 1965 (see
paragraph 3 of donation).
With the known predisposition of the majority of
the members of the Provincial Board, there would
have been no impediment to the extension of the
reversion date to beyond August 15, 1965. Once
the date of reversion is extended, the disposition
of an the donated lots would be only a matter of
course.
We have carefully reviewed the records of this case and conclude
that 30% or even 5% of properties already worth
(P120,000,000.00) in 1979 as compensation for the private
respondent's services is simply out of the question. The case
handled by Atty. Garcia was decided on the basis of a
compromise agreement where he no longer participated. The
decision was rendered after pre-trial and without any hearing on
the merits.
The factual findings and applicable law in this petition are
accurately discussed in the exhaustive and well-written Order of
then Trial Judge, now Court of Appeals Justice Alfredo
Marigomen We agree with his determination of reasonable fees
for the private lawyer on the basis of quantum meruit. The trial
court fixed the compensation at P30,000.00 and ordered
reimbursement of actual expenses in the amount of P289.43.
WHEREFORE, the questioned October 18, 1985 decision of the
Intermediate Appellate Court is set aside. The Order of the Trial
Court dated May 30, 1979 is REINSTATED.
SO ORDERED
G.R. No. 163609             November 27, 2008
SPS. BUENAVENTURA JAYME AND ROSARIO
JAYME, petitioners,
vs.
RODRIGO APOSTOL, FIDEL LOZANO, ERNESTO SIMBULAN,
MAYOR FERNANDO Q. MIGUEL, MUNICIPALITY OF
KORONADAL (NOW CITY OF KORONADAL), PROVINCE OF
SOUTH COTABATO, represented by the MUNICIPAL
TREASURER and/or MUNICIPAL MAYOR FERNANDO Q.
MIGUEL, and THE FIRST INTEGRATED BONDING AND
INSURANCE COMPANY, INC., respondents.
DECISION
REYES, R.T., J.:
MAY a municipal mayor be held solidarily liable for the negligent acts
of the driver assigned to him, which resulted in the death of a minor
pedestrian?
Challenged in this petition for review on certiorari is the Decision1 of
the Court of Appeals (CA) which reversed and set aside the decision
of the Regional Trial Court (RTC), Polomolok, Cotabato City, Branch
39, insofar as defendant Mayor Fernando Q. Miguel is concerned.
The CA absolved Mayor Miguel from any liability since it was not he,
but the Municipality of Koronadal, that was the employer of the
negligent driver.
The Facts
On February 5, 1989, Mayor Miguel of Koronadal, South Cotabato
was on board the Isuzu pick-up truck driven by Fidel Lozano, an
employee of the Municipality of Koronadal.2 The pick-up truck was
registered under the name of Rodrigo Apostol, but it was then in the
possession of Ernesto Simbulan.3 Lozano borrowed the pick-up truck
from Simbulan to bring Miguel to Buayan Airport at General Santos
City to catch his Manila flight.4
The pick-up truck accidentally hit Marvin C. Jayme, a minor, who was
then crossing the National Highway in Poblacion, Polomolok, South
Cotabato.5 The intensity of the collision sent Marvin some fifty (50)
meters away from the point of impact, a clear indication that Lozano
was driving at a very high speed at the time of the accident.6
Marvin sustained severe head injuries with subdural hematoma and
diffused cerebral contusion.7 He was initially treated at the Howard
Hubbard Memorial Hospital.8 Due to the seriousness of his injuries,
he was airlifted to the Ricardo Limso Medical Center in Davao City
for more intensive treatment.9 Despite medical attention, Marvin
expired six (6) days after the accident.10
Petitioners spouses Buenaventura and Rosario Jayme, the parents
of Marvin, filed a complaint for damages with the RTC against
respondents.11 In their complaint, they prayed that all respondents be
held solidarily liable for their loss. They pointed out that that
proximate cause of Marvin's death was Lozano's negligent and
reckless operation of the vehicle. They prayed for actual, moral, and
exemplary damages, attorney's fees, and litigation expenses.
In their respective Answers, all respondents denied liability for
Marvin's death. Apostol and Simbulan averred that Lozano took the
pick-up truck without their consent. Likewise, Miguel and Lozano
pointed out that Marvin's sudden sprint across the highway made it
impossible to avoid the accident. Yet, Miguel denied being on board
the vehicle when it hit Marvin. The Municipality of Koronadal adopted
the answer of Lozano and Miguel. As for First Integrated Bonding
and Insurance Company, Inc., the vehicle insurer, it insisted that its
liability is contributory and is only conditioned on the right of the
insured. Since the insured did not file a claim within the prescribed
period, any cause of action against it had prescribed.
RTC Disposition
On January 25, 1999, the RTC rendered judgment in favor of
spouses Jayme, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, the defendant
Municipality of Koronadal cannot be held liable for the
damages incurred by other defendant (sic) being an agency
of the State performing a (sic) governmental functions. The
same with defendant Hermogenes Simbulan, not being the
owner of the subject vehicle, he is absolved of any liability.
The complaint against defendant First Integrated Bonding
Insurance Company, Inc. is hereby ordered dismissed there
being no cause of action against said insurance company.
However, defendants Fidel Lozano, Rodrigo Apostol, and
Mayor Fernando Miguel of Koronadal, South Cotabato, are
hereby ordered jointly and severally to pay the plaintiff (sic)
the following sums:
1. One Hundred Seventy Three Thousand One
Hundred One and Forty Centavos (P173,101.40)
Pesos as actual damages with legal interest of 12%
per annum computed from February 11, 1989 until
fully paid;
 2. Fifty Thousand (P50,000.00) Pesos as moral Fernando Q. Miguel is concerned, and the complaint against
damages; him is DISMISSED.

3. Twenty Thousand (P20,000.00) Pesos as IT IS SO ORDERED.13

exemplary damages;
The CA held that Mayor Miguel should not be held liable for
4. Twenty Thousand (P20,000.00) Pesos as damages for the death of Marvin Jayme. Said the appellate court:
Attorney's fees;
Moreover, plaintiffs-appellees admitted that Mayor Miguel
5. Fifty Thousand (P50,000.00) Pesos for the death was not the employer of Lozano. Thus, paragraph 9 of the
of Marvin Jayme; complaint alleged that the Municipality of Koronadal was
the employer of both Mayor Miguel and Lozano. Not
6. Three Thousand (P3,000.00) as litigation being the employer of Lozano, Mayor Miguel could not thus
expenses; and be held liable for the damages caused by the former. Mayor
Miguel was a mere passenger in the Isuzu pick-up at the
time of the accident.14 (Emphasis supplied)
7. To pay the cost of this suit.

The CA also reiterated the settled rule that it is the registered owner
SO ORDERED.12
of a vehicle who is jointly and severally liable with the driver for
damages incurred by passengers or third persons as a consequence
Dissatisfied with the RTC ruling, Mayor Miguel interposed an appeal of injuries or death sustained in the operation of the vehicle.
to the CA.
Issues
CA Disposition
The spouses Jayme have resorted to the present recourse and
In his appeal, Mayor Miguel contended that the RTC erred in ruling assign to the CA the following errors:
that he was Lozano's employer and, hence, solidarily liable for the
latter's negligent act. Records showed that the Municipality of
I.
Koronadal was the driver's true and lawful employer. Mayor Miguel
also denied that he did not exercise due care and diligence in the
supervision of Lozano. The incident, although unfortunate, was THE HONORABLE COURT OF APPEALS ERRED IN
unexpected and cannot be attributed to him. HOLDING THAT MAYOR FERNANDO MIGUEL CANNOT
BE HELD LIABLE FOR THE DEATH OF MARVIN JAYME
WHICH CONCLUSION IS CONTRARY TO LAW AND THE
On October 22, 2003, the CA granted the appeal, disposing as
SETTLED PRONOUNCEMENTS OF THIS HONORABLE
follows:
TRIBUNAL;
WHEREFORE, the Decision appealed from is REVERSED
II.
and SET ASIDE, insofar as defendant-appellant Mayor
 THE FINDINGS OF FACTS OF THE HONORABLE COURT
OF APPEALS ARE CONTRARY TO THE FINDINGS OF
THE TRIAL COURT AND ARE CONTRADICTED BY THE
EVIDENCE ON RECORD; MOREOVER, THE
CONCLUSIONS DRAWN BY THE HONORABLE COURT
OF APPEALS ARE ALL BASED ON CONJECTURES AND
SURMISES AND AGAINST ACCEPTED COURSE OF
JUDICIAL PROCEEDINGS WHICH URGENTLY CALL FOR
AN EXERCISE OF THIS HONORABLE COURT'S
SUPERVISION.15
Our Ruling
The doctrine of vicarious liability or imputed liability finds no
application in the present case.
Spouses Jayme contend, inter alia, that vicarious liability attaches to
Mayor Miguel. He was not a mere passenger, but instead one who
had direct control and supervision over Lozano during the time of the
accident. According to petitioners, the element of direct control is not
negated by the fact that Lozano's employer was the Municipality of
Koronadal. Mayor Miguel, being Lozano's superior, still had control
over the manner the vehicle was operated.
Article 218016 of the Civil Code provides that a person is not only
liable for one's own quasi-delictual acts, but also for those persons
for whom one is responsible for. This liability is popularly known as
vicarious or imputed liability. To sustain claims against employers for
the acts of their employees, the following requisites must be
established: (1) That the employee was chosen by the employer
personally or through another; (2) That the service to be rendered in
accordance with orders which the employer has the authority to give
at all times; and (3) That the illicit act of the employee was on the
occasion or by reason of the functions entrusted to him.17
Significantly, to make the employee liable under paragraphs 5 and 6
of Article 2180, it must be established that the injurious or tortuous
act was committed at the time the employee was performing his
functions.18
Furthermore, the employer-employee relationship cannot be
assumed. It is incumbent upon the plaintiff to prove the relationship
by preponderant evidence. In Belen v. Belen,19 this Court ruled that it
was enough for defendant to deny an alleged employment
relationship. The defendant is under no obligation to prove the
negative averment. This Court said:
It is an old and well-settled rule of the courts that the burden
of proving the action is upon the plaintiff, and that if he fails
satisfactorily to show the facts upon which he bases his
claim, the defendant is under no obligation to prove his
exceptions. This rue is in harmony with the provisions of
Section 297 of the Code of Civil Procedure holding that each
party must prove his own affirmative allegations, etc.20
In resolving the present controversy, it is imperative to find out if
Mayor Miguel is, indeed, the employer of Lozano and therefore liable
for the negligent acts of the latter. To determine the existence of an
employment relationship, We rely on the four-fold test. This involves:
(1) the employer's power of selection; (2) payment of wages or other
remuneration; (3) the employer's right to control the method of doing
the work; and (4) the employer's right of suspension or dismissal.21
Applying the foregoing test, the CA correctly held that it was the
Municipality of Koronadal which was the lawful employer of Lozano
at the time of the accident. It is uncontested that Lozano was
employed as a driver by the municipality. That he was subsequently
assigned to Mayor Miguel during the time of the accident is of no
moment. This Court has, on several occasions, held that an
employer-employee relationship still exists even if the employee was
loaned by the employer to another person or entity because control
over the employee subsists.22 In the case under review, the
Municipality of Koronadal remains to be Lozano's employer
notwithstanding Lozano's assignment to Mayor Miguel.
Spouses Jayme argued that Mayor Miguel had at least supervision
and control over Lozano and how the latter operated or drove the
Isuzu pick-up during the time of the accident. They, however, failed
to buttress this claim.
Even assuming arguendo that Mayor Miguel had authority to give
instructions or directions to Lozano, he still can not be held liable.
In Benson v. Sorrell,23 the New England Supreme Court ruled that
mere giving of directions to the driver does not establish that the
passenger has control over the vehicle. Neither does it render one
the employer of the driver. This Court, in Soliman, Jr. v.
Tuazon,24 ruled in a similar vein, to wit:
x x x The fact that a client company may give instructions or
directions to the security guards assigned to it, does not, by
itself, render the client responsible as an employer of the
security guards concerned and liable for their wrongful acts
and omissions. Those instructions or directions are ordinarily
no more than requests commonly envisaged in the contract
for services entered into with the security agency. x x
x25 (Emphasis supplied)
Significantly, no negligence may be imputed against a fellow
employee although the person may have the right to control the
manner of the vehicle's operation.26 In the absence of an employer-
employee relationship establishing vicarious liability, the driver's
negligence should not be attributed to a fellow employee who only
happens to be an occupant of the vehicle.27 Whatever right of control
the occupant may have over the driver is not sufficient by itself to
justify an application of the doctrine of vicarious liability. Handley v.
Lombardi28 is instructive on this exception to the rule on vicarious
liability:
Plaintiff was not the master or principal of the driver of the
truck, but only an intermediate and superior employee or
agent. This being so, the doctrine of respondeat superior or
qui facit per alium is not properly applicable to him.  His
power to direct and control the driver was not as master, but
only by virtue of the fact that they were both employed by
Kruse, and the further fact that as Kruse's agent he was
delegated Kruse's authority over the driver. x x x
In the case of actionable negligence, the rule is well settled
both in this state and elsewhere that the negligence of a
subordinate employee or subagent is not to be imputed to a
superior employee or agent, but only to the master or
principal. (Hilton v. Oliver, 204 Cal. 535 [61 A. L. R. 297, 269
Pac. 425; Guild v. Brown, 115 Cal. App. 374 [1 Pac. (2d)
528; Ellis v. Southern Ry. Co., 72 S. C. 464 [2 L. R. A. (N.
S.) 378, 52 S. E. 228; Thurman v. Pittsburg & M. Copper
Co., 41 Mont. 141 [108 Pac. 588]; 2 Cor. Jur., p. 829; and
see the elaborate note in 61 A. L. R. 277, and particularly
that part commencing at p. 290.) We can see no logical
reason for drawing any distinction in this regard between
actionable negligence and contributory negligence. x x x29
The rule was reiterated in Bryant v. Pacific Elec. Ry. Co.[30 and
again in Sichterman v. Hollingshead Co.31
In Swanson v. McQuown,32 a case involving a military officer who
happened to be riding in a car driven by a subordinate later involved
in an accident, the Colorado Supreme Court adhered to the general
rule that a public official is not liable for the wrongful acts of his
subordinates on a vicarious basis since the relationship is not a true
master-servant situation.33 The court went on to rule that the only
exception is when they cooperate in the act complained of, or direct
or encourage it.34
In the case at bar, Mayor Miguel was neither Lozano's employer nor
the vehicle's registered owner. There existed no causal relationship
between him and Lozano or the vehicle used that will make him
accountable for Marvin's death. Mayor Miguel was a mere passenger
at the time of the accident.
Parenthetically, it has been held that the failure of a passenger to
assist the driver, by providing him warnings or by serving as lookout
does not make the passenger liable for the latter's negligent
acts.35 The driver's duty is not one that may be delegated to others.36
As correctly held by the trial court, the true and lawful employer of
Lozano is the Municipality of Koronadal. Unfortunately for Spouses
Jayme, the municipality may not be sued because it is an agency of
the State engaged in governmental functions and, hence, immune
from suit. This immunity is illustrated in Municipality of San WHEREFORE, the petition is DENIED and the appealed
Fernando, La Union v. Firme,37 where this Court held: Decision AFFIRMED.

It has already been remarked that municipal corporations are SO ORDERED.

suable because their charters grant them the competence to
sue and be sued. Nevertheless, they are generally not liable  
for torts committed by them in the discharge of governmental
functions and can only be held answerable only if it can be
shown that they were acting in proprietary capacity. In
permitting such entities to be sued, the State merely gives
the claimant the right to show that the defendant was not
acting in governmental capacity when the injury was
committed or that the case comes under the exceptions G.R. No. 105909 June 28, 1994
recognized by law. Failing this, the claimant cannot
recover.38 MUNICIPALITY OF PILILLA, RIZAL, petitioner,
vs.
Verily, liability attaches to the registered owner, the negligent driver HON. COURT OF APPEALS, HON. ARTURO A. MARAVE, as
and his direct employer. The CA observation along this line are worth Presiding Judge, Regional Trial Court, Branch 78, Morong,
restating: Rizal, and PHILIPPINE PETROLEUM
CORPORATION, respondents.
Settled is the rule that the registered owner of a vehicle is
jointly and severally liable with the driver for damages Felix E. Mendiola for petitioner.
incurred by passengers and third persons as a consequence
of injuries or death sustained in the operation of said
vehicles. Regardless of who the actual owner of the vehicle Makalintal, Barot, Torres & Ibarra for respondent Philippine
is, the operator of record continues to be the operator of the Petroleum Corporation.
vehicle as regards the public and third persons, and as such
is directly and primarily responsible for the consequences
incident (sic) to its operation x x x.39
REGALADO, J.:
The accidental death of Marvin Jayme is a tragic loss for his parents.
However, justice demands that only those liable under our laws be Petitioner questions and seeks the nullification of the resolution of
held accountable for Marvin's demise. Justice can not sway in favor respondent Court of Appeals in CA-G.R. SP. No. 27504 dated
of petitioners simply to assuage their pain and loss. The law on the March 31, 1992, dismissing the petition for having been filed by a
matter is clear: only the negligent driver, the driver's employer, and
private counsel, as well as its succeeding resolution dated June
the registered owner of the vehicle are liable for the death of a third
9, 1992, denying petitioner's motion for reconsideration.  1

person resulting from the negligent operation of the vehicle.

The records show that on March 17, 1989, the Regional Trial
Court of Tanay, Rizal, Branch 80, rendered judgment in Civil
Case No. 057-T in favor of plaintiff, now herein petitioner
Municipality of Pililla, Rizal, against defendant, now herein private
respondent Philippine Petroleum Corporation (PPC, for short),
ordering therein defendant to pay said plaintiff (1) the amount of
P5,301,385.00 representing the tax on business due from the
defendant under Section 9(A) of Municipal Tax Ordinance No. 1
of said municipality for the period from 1979 to 1983, inclusive,
plus such amount of tax as may accrue until final determination of
the case; (2) storage permit fee in the amount of P3,321,730.00
due from the defendant under Section 10, paragraph Z(13)
(b-1-c) of the same municipal tax ordinance for the period from
1975 to 1986, inclusive, plus the amount of said fee that may
accrue until final determination of the case; (3) mayor's permit fee
due from the defendant under Section 10, paragraph (P) (2) of
said municipal tax ordinance from 1975 to 1984, inclusive, in the
amount of P12,120.00, plus such amount of the same fee as may
accrue until final determination of the case; (4) sanitary inspection
fee in the amount of P1,010.00 for the period from 1975 to 1984,
plus the amount of this fee that may accrue until final
determination of the case; and (5) the costs of suit. 
2
On June 3, 1991, in G.R. No. 90776 this Court affirmed the
aforesaid judgment, with the modification that business taxes
accruing prior to 1976 are not to be paid by PPC because the
same have prescribed, and that storage fees are not also to be
paid by PPC since the storage tanks are owned by PPC and not
by the municipality and, therefore, cannot be the bases of a
charge for service by the municipality.  This judgment became
3
final and executory on July 13, 1991 and the records were
remanded to the trial court for execution.
On October 14, 1991, in connection with the execution of said
judgment, Atty. Felix E. Mendiola filed a motion in behalf of
plaintiff municipality with the Regional Trial Court, Branch 78,
Morong, Rizal* for the examination of defendant corporation's
gross sales for the years 1976 to 1978 and 1984 to 1991 for the
purpose of computing the tax on business imposed under the
Local Tax Code, as amended. On October 21, 1991, defendant
corporation filed a manifestation to the effect that on October 18,
1991, Pililla Mayor Nicomedes Patenia received from it the sum
of P11,457,907.00 as full satisfaction of the above-mentioned
judgment of the Supreme Court, as evidence by the release and
quitclaim documents executed by said mayor. Accordingly, on
October 31, 1991 the court below issued an order denying
plaintiff municipality's motion for examination and execution of
judgment on the ground that the judgment in question had
already been satisfied. 4
Thereafter, on November 21, 1991 Atty. Mendiola filed a motion
for reconsideration of the court's aforesaid order of October 31,
1991, claiming that the total liability of defendant corporation to
plaintiff municipality amounted to P24,176,599.00, while the
amount involved in the release and quitclaim executed by Mayor
Patenia was only P12,718,692; and that the said mayor could not
waive the balance which represents the taxes due under the
judgment to the municipality and over which judgment the law
firm of Atty. Mendiola had registered two liens for alleged
consultancy services of 25% and attorneys' fees of 25% which,
when quantified and added, amount to more than P12 million.
On January 28,1992, the trial court denied the aforesaid motion
for reconsideration.5
On February 18, 1992, Atty. Mendiola, again ostensibly in behalf
of herein petitioner municipality, filed a petition for certiorari with
us, which petition we referred to the Court of Appeals for proper
disposition and was docketed therein as CA-G.R. SP No.
27504.  On March 2, 1992, respondent PPC filed a motion
6
questioning Atty. Mendiola's authority to represent petitioner
municipality.  Consequently, on March 31, 1992 respondent Court
7
of Appeals dismissed the petition for having been filed by a
private counsel in violation of law and jurisprudence, but without
prejudice to the filing of a similar petition by the Municipality of
Pililla through the proper provincial or municipal legal
officer.  Petitioner filed a motion for reconsideration which was
8
denied by the Court of Appeals in its resolution of June 9, 1992. 9
Petitioner is once again before us with the following assignment
of errors:
1. It is an error for the Court of Appeals to
consider private respondent's new issue raised for
the first time on appeal, as it could no longer be
considered on appeal, because it was never been
(sic) raised in the court below.
2. It is an error for the Court of Appeals in
dismissing (sic) the instant petition with alternative
remedy of filing similar petition as it is a departure
from established jurisprudence.
3. It is an error for the Court of Appeals to rule that
the filing of the instant petition by the private
counsel is in violation of law and jurisprudence. 10
We find the present petition devoid of merit.
The Court of Appeals is correct in holding that Atty. Mendiola has
no authority to file a petition in behalf of and in the name of the
Municipality of Pililla. The matter of representation of a
municipality by a private attorney has been settled in Ramos
vs. Court of Appeals, et al.,  and reiterated in Province of Cebu
11
vs. Intermediate Appellate Court, et al.,  where we ruled that
12
private attorneys cannot represent a province or municipality in
lawsuits.
Section 1683 of the Revised Administrative Code provides:
Section 1683. Duty of fiscal to represent
provinces and provincial subdivisions in litigation.
— The provincial fiscal shall represent the
province and any municipality or municipal district
thereof in any court, except in cases whereof
original jurisdiction is vested in the Supreme Court
or in cases where the municipality or municipal
district in question is a party adverse to the
provincial government or to some other
municipality or municipal district in the same
province. When the interests of a provincial
government and of any political division thereof
are opposed, the provincial fiscal shall act on
behalf of the province.
When the provincial fiscal is disqualified to serve
any municipality or other political subdivision of a
province, a special attorney may be employed by
its council.
13
Under the above provision, complemented by Section 3, Republic
Act No. 2264, the Local Autonomy Law,  only the provincial fiscal
14
and the municipal attorney can represent a province or
municipality in their lawsuits. The provision is mandatory. The
municipality's authority to employ a private lawyer is expressly
limited only to situations where the provincial fiscal is disqualified
to represent it.
15
For the aforementioned exception to apply, the fact that the
provincial fiscal was disqualified to handle the municipality's case
must appear on
record.  In the instant case, there is nothing in the records to
16
show that the provincial fiscal is disqualified to act as counsel for
the Municipality of Pililla on appeal, hence the appearance of
herein private counsel is without authority of law.
The submission of Atty. Mendiola that the exception is broad
enough to include situations wherein the provincial fiscal refuses
to handle the case cannot be sustained. The fiscal's refusal to
represent the municipality is not a legal justification for employing
the services of private counsel. Unlike a practicing lawyer who
has the right to decline employment, a fiscal cannot refuse to
perform his functions on grounds not provided for by law without
violating his oath of office. Instead of engaging the services of a
special attorney, the municipal council should request the
Secretary of Justice to appoint an acting provincial fiscal in place
of the provincial fiscal who has declined to handle and prosecute
its case in court, pursuant to Section 1679 of the Revised
Administrative Code. 17
It is also significant that the lack of authority of herein counsel,
Atty. Mendiola, was even raised by the municipality itself in its
comment and opposition to said counsel's motion for execution of
his lien, which was filed with the court a quo by the office of the
Provincial Prosecutor of Rizal in behalf of said municipality.
18
The contention of Atty. Mendiola that private respondent cannot
raise for the first time on appeal his lack of authority to represent
the municipality is untenable. The legality of his representation
can be questioned at any stage of the proceedings. In the cases
hereinbefore cited,  the issue of lack of authority of private
19
counsel to represent a municipality was only raised for the first
time in the proceedings for the collection of attorney's fees for
services rendered in the particular case, after the decision in that
case had become final and executory and/or had been duly
executed.
Furthermore, even assuming that the representation of the
municipality by Atty. Mendiola was duly authorized, said authority
is deemed to have been revoked by the municipality when the
latter, through the municipal mayor and without said counsel's
participation, entered into a compromise agreement with herein
private respondent with regard to the execution of the judgment in
its favor and thereafter filed personally with the court below two
pleadings
entitled and constitutive of a "Satisfaction of Judgment" and a
"Release and Quitclaim". 20
A client, by appearing personally and presenting a motion by
himself, is considered to have impliedly dismissed his lawyer.
Herein counsel cannot pretend to be authorized to continue
representing the municipality since the latter is entitled to
dispense with his services at any time. Both at common law and
under Section 26, Rule 138 of the Rules of Court, a client may
dismiss his lawyer at any time or at any stage of the proceedings,
and there is nothing
to prevent a litigant from appearing before the court to conduct
his own litigation.
21
The client has also an undoubted right to compromise a suit
without the intervention of his lawyer.  Even the lawyers' right to
22
fees from their clients may not be invoked by the lawyers
themselves as a ground for disapproving or holding in abeyance
the approval of a compromise agreement. The lawyers concerned
can enforce their rights in the proper court in an appropriate
proceeding in accordance with the Rules of Court, but said rights
may not be used to prevent the approval of the compromise
agreement. 23
The apprehension of herein counsel that it is impossible that the
municipality will file a similar petition, considering that the mayor
who controls its legislative body will not take the initiative, is not
only conjectural but without factual basis. Contrary to his
pretensions, there is presently a manifestation and motion
pending with the trial court filed by the aforesaid municipal mayor
for the withdrawal of the "Satisfaction of Judgment" and the
"Release and Quitclaim"  previously filed in the case therein as
24
earlier mentioned.
WHEREFORE, the petition at bar is DENIED for lack of merit and
the judgment of respondent Court of Appeals is hereby 
[G.R. No. 108232. August 23, 1993.]
ZONSAYDA L. ALINSUG, Petitioner, v. REGIONAL
TRIAL COURT, Branch 58, San Carlos City, Negros
Occidental, Presided by Hon. Rolindo D. Beldia, Jr.;
ROLANDO P. PONSICA as Municipal Mayor of
Escalante, Negros Occidental; MUNICIPALITY OF
ESCALANTE, NEGROS OCCIDENTAL, and PATRICIO
A. ALVAREZ as Municipal Treasurer of Escalante,
Negros Occidental, Respondents.
Alexander J. Cawit for Petitioner.
Daniel U. Villaflor and Samuel SM. Lezama for
respondent Mayor & Municipal Treasurer.
RESOLUTION
VITUG, J.:
The petitioner, Zonsayda L. Alinsug, had been a regular
employee of the municipal government of Escalante,
Negros Occidental, when she received a permanent
appointment as Clerk III in the Office of the Municipal
Planning and Development Coordinator of the same
municipality. On 10 June 1992, she received an order
from the newly proclaimed mayor, Rolando P. Ponsica,
detailing her to the Office of the Mayor. In compliance
with the order, she reported to said office the following
day.chanrobles virtualawlibrary
On 19 June 1992, Zonsayda absented herself from work
allegedly to attend to family matters. She had asked
permission from the personnel officer but not from the
mayor. On 23 June 1992, Mayor Ponsica issued Office
Order No. 31, suspending Zonsayda for one month and
one day commencing on 24 June 1992 for "a simple
misconduct . . . which can also be categorized as an act
of insubordination." The order also stated that the
suspension "carries with it forfeiture of . . . benefits such
as . . . salary and PERA and leave credits during the
duration of its effectivity."
cralaw virtua1aw library
Forthwith, Zonsayda filed with the Regional Trial Court of
Negros Occidental, in San Carlos City, a petition, dated
07 July 1992, for "injunction with damages and prayer
for temporary restraining order and preliminary
injunction" against Mayor Ponsica and the municipal
treasurer. 1 The petitioner alleged that since her family
supported Mayor Ponsica’s rival in the 11 May 1992
elections, her suspension was an act of "political
vendetta." Further alleging that said respondents’ acts
were "malicious, illegal, unwarranted, wrongful and
condemnable", petitioner prayed for the following
reliefs:
chanrobles .com:cralaw:red
"WHEREFORE, premises considered, it is respectfully
prayed to this Honorable Court —
4.1 That upon the filing of this petition a temporary
restraining order be immediately issued directing
respondents mayor and municipality to cease and desist
from continuing with the suspension, and indefinite detail
of petitioner at his office, and, including the respondent
treasurer to refrain from forfeiting and not paying her
chanrobles.com:chanrobles.com.ph
salary for the period from June 24 to July 23, 1992, and
in the meantime to return petitioner to her position as
Clerk III in the office of the Municipal Planning and
Development Coordinator; to restrain respondents mayor
and municipality also from persecuting, oppressing,
harassing and humiliating petitioner as civil service
employee of the municipality under the respondent
mayor, and also restraining them from doing acts and
things or employing tactics, schemes or maneuvers that
would make it hard or effect a difficulty in petitioner’s
doing of her works and/or in the performance of the
official function of her position entitled to the
emoluments thereof, until further orders from the
Honorable Court; and after notice and hearing to issue
the corresponding writ of preliminary injunction;
4.2 After trial on the merit, to render judgment declaring
petitioner’s detail at respondent’s office per Annex ‘C’
and suspension per Annex ‘D’, null and void, and making
the injunction permanent; and
4.3 Adjudging the respondents mayor and municipality
solidarily to pay petitioner the amount of P30,000.00 for
moral damages; P10,000.00 plus P500.00 per court
appearance of petitioner’s counsel for attorney’s fee, and
P3,000.00 for litigation expenses, all in concept of actual
and compensatory damages; P20,000.00 as exemplary
damages; and to pay the costs of this suit.
Further, petitioner respectfully prays for such other
proper reliefs and remedies just and appropriate in the
premises." 2 award of moral damages," on the strength of this Court’s
Mayor Ponsica and the municipal treasurer filed an
answer to the petition, through private practitioner
Samuel SM Lezama, alleging that the petitioner had not
exhausted administrative remedies and that her
suspension was in accordance with law. They filed a
counterclaim for moral damages in the amount of
P200,000.00, exemplary damages for P50,000.00, and
attorney’s fees of P30,000.00, plus appearance fee of
P500.00.
The foregoing elicited a motion from the petitioner,
praying that the answer be disregarded and expunged
from the record, and that the respondents be all declared
in default on the ground that since the respondents were
sued in their official capacities, "not including their
private capacities," they should have been represented
by either the municipal legal officer or the provincial legal
officer or prosecutor as provided for by Sec. 481 (b) [i]
and [3] of the Local Government Code. It also cited Sec.
1 of Rep. Act No. 10 and Art. 177 of the Revised Penal
Code which penalizes usurpation of public authority. chanrobles.com.ph : virtual law library
The respondents opposed the motion. Manifesting that
the municipality of Escalante has no legal officer, they
asserted that both the Local Government Code and the
Administrative Code of 1987 do not have any provision
"relative to the duty of any provincial legal officer or
prosecutor to represent a municipality or its officials in
suits filed against them by an employee or a private
individual." They contended that it was "unnecessary to
provide such a provision because there (exist)
administrative and judicial rulings sustaining the validity
of the employment of a private counsel by municipal
officials." Moreover, since the petitioner prayed for the
ruling in Albuera v. Torres, 3 their hiring of a private
counsel was justified.
On 28 August 1992, Assistant Provincial Prosecutor
Daniel M. Villaflor entered his appearance as "counsel for
Rolando P. Ponsica and Patricio A. Alvarez in their official
capacities."cralaw virtua1aw library
With the filing of said notice of appearance, on 08
September 1992, the lower court issued an Order,
denying petitioner’s motion to declare the respondents in
default and motion to expunge from the record
respondents’ answer.
Acting on the motion for reconsideration filed by the
petitioner, the lower court issued the Order of 16
November 1992, denying said motion on the thesis that
since the appointment of a legal officer was optional on
the part of the municipal government (Art. 481, third
paragraph, Local Government Code) and the municipality
of Escalante had not, in fact, designated any such legal
officer, petitioner’s move to declare respondents in
default "for having retained a private counsel" was not
thereby legally sustainable.
Hence, the instant petition, which, although called a
"petition for review on certiorari" in its first paragraph,
shall be treated as a special civil action of certiorari for
purposes of resolving the issues of: (a) whether or not a
private counsel may represent municipal officials sued in
their official capacities, and (b) whether or not
respondents had been in default on account of their
having filed their answer through a private counsel. chanroblesvirtual
‘;|awlibrary
Sec. 443 (b) of the Local Government Code (Republic Act
No. 7160), which took effect on 01 January 1992, 4
provides that, in addition to the officials enumerated in
the first paragraph thereof, the mayor may appoint,
among other officials enumerated therein, a municipal
legal officer. Section 481, Article 11 of Title V of the Code
which provides for the appointment of local officials
common to all municipalities, cities and provinces, states
that" (t)he appointment of a legal officer shall be
mandatory for the provincial and city governments and
optional for the municipal government." The same
section specifies the functions of the legal officer, and
one of them being that he shall: jgc:chanrobles.com.ph
"(i) Represent the local government unit in all civil
actions and special proceedings wherein the local
government unit or any official thereof, in his official
capacity, is a party: Provided, that in actions or
proceedings where a component city or municipality is a
party adverse to the provincial government or to another
component city or municipality, a special legal officer
may be employed to represent the adverse party;"  chanrobles law library
Indeed, it appears that the law allows a private counsel
to be hired by a municipality only when the municipality
is an adverse party in a case involving the provincial
government or another municipality or city within the
province. This provision has its apparent origin in the
ruling in De Guia v. The Auditor General 5 where the
Court held that the municipality’s authority to employ a
private attorney is expressly limited only to situations
where the provincial fiscal would be disqualified to serve
and represent it. With Sec. 1683 of the old
Administrative Code 6 as legal basis, the Court therein
cited Enriquez, Sr. v. Gimenez 7 which enumerated
instances when the provincial fiscal is disqualified to
represent in court a particular municipality: if and when
original jurisdiction of case involving the municipality is
vested in the Supreme Court, when the municipality is a
party adverse to the provincial government or to some
other municipality in the same province, and when, in a
case involving the municipality, he, or his wife, or child,
is pecuniarily involved, as heir legatee, creditor or
otherwise. 8
Thereafter, in Ramos v. Court of Appeals, 9 the Court
ruled that a municipality may not be represented by a
private law firm which had volunteered its services
gratis, in collaboration with the municipal attorney and
the fiscal, as such representation was violative of Sec.
1683 of the old Administrative Code. This strict
coherence to the letter of the law appears to have been
dictated by the fact that "the municipality should not be
burdened with expenses of hiring a private lawyer" and
that "the interests of the municipality would be best
protected if a government lawyer handles its litigations."
virtua1aw
But would these proscriptions include public officials? Not
necessarily. It can happen that a government official,
ostensibly acting in his official capacity and sued in that
capacity, is later held to have exceeded his authority. On
the one hand, his defense would have then been
underwritten by the people’s money which ordinarily
should have been his personal expense. On the other
hand, personal liability can attach to him without,
however, his having had the benefit of assistance of a
counsel of his own choice. In Correa v. CF1 of Bulacan,
10 the Court held that in the discharge of governmental
functions, "municipal corporations are responsible for the
acts of its officers, except if and when, and only to the
extent that, they have acted by authority of the law, and
in conformity with the requirements thereof." cralaw
In such instance, this Court has sanctioned the
representation by private counsel. In one case, We held
that where rigid adherence to the law on representation
of local officials in court actions could deprive a party of
his right to redress for a valid grievance, the hiring of a
private counsel would be proper 11 . And, in Albuera v.
Torres, 12 this Court also said that a provincial governor
sued in his official capacity may engage the services of
private counsel when "the complaint contains other
allegations and a prayer for moral damages, which, if
due from the defendants, must be satisfied by them in
their private capacity." cralaw virtua1aw library
We might also quote the pronouncement of the Court in
Urbano v. Chavez: 13
"There is likewise another reason . . . why the Office of
the Solicitor General cannot represent an accused in a
cralaw
library
criminal case. Inasmuch as the State can speak and act
only by law, whatever it does say and do must be lawful,
and that which is unlawful is not the word or deed of the
State, but is the mere wrong or trespass of those
individual persons who falsely speak and act in its name.
Therefore, the accused public official should not expect
the State, through the Office of the Solicitor General, to
defend him for a wrongful act which cannot be attributed
to the State itself. In the same light, a public official who
is sued in a criminal case is actually sued in his personal
capacity inasmuch as his principal, the State, can never
be the author of a wrongful act, much less commit a
crime." cralaw virtua1aw library
Urbano v. Chavez confronted the issue of whether the
Office of the Solicitor General may represent its own
virtua1aw library
Solicitor General in the preliminary investigation of a
criminal action, or in a civil action for damages, against
him.
The key then to resolving the issue of whether a local
government official may secure the services of private
counsel, in an action filed against him in his official
capacity, lies on the nature of the action and the relief
that is sought.
While the petition below was filed against respondents as
public officials, its allegations were also aimed at
questioning certain acts that can well bring the case
beyond the mere confines of official functions; thus — liability. chanrobles.com : virtual law library

"2.12 These actuations of the respondent mayor in All the foregoing considered, We hold that the
detailing petitioner to his office and eventually respondents were not improperly represented by a
suspending her from work, particularly the latter are no private counsel, whose legal fees shall be for their own
doubt respondent mayor’s political vendetta of petitioner, account.
a vengeance unleased on her for her children’s and
family’s not going with and voting for him in the May 11, ACCORDINGLY, the instant petition is hereby
1992 election and instead supporting the candidacy of DISMISSED. The lower court is directed to proceed with
their relative-candidate (Mr. Barcelona) in said election, dispatch in the resolution of Special Civil Action No. RTC-
who was his greated (sic) worry at that time. chanrobles virtual lawlibrary 371.

2.13 The aforesaid acts of respondent mayor are clearly, SO ORDERED.

apparently and obviously a political harassment and
persecution, appreasive (sic), acts of vindictiveness, a
grave abuse of executive discretion, despotic, unjust,
unwarranted, condemnable and actionable; the indefinite
detail order and, especially the suspension, were not
done in good faith, not for a valid cause, and done
without giving petitioner opportunity to be heard, hence,
null and void for being violative of petitioner’s legal and
constitutional right to due process . . ." 14

The petition then went on to claim moral and exemplary

damages, as well as litigation expenses, as shown by its
prayer.

Moral damages cannot generally be awarded unless they

are the proximate result of a wrongful act or omission.
Exemplary damages, on the other hand, are not awarded
if the defendant had not acted in a wanton, oppressive or
malevolent manner nor in the absence of gross or
reckless negligence. 15 A public official, who in the
performance of his duty acts in such fashion, does so in
excess of authority, and his actions would be ultra vires
16 that can thereby result in an incurrence of personal