In Estate of Gregoria Francisco v. CA, et al.

[G.R. No. 95279, July 25, 1991]

Quick facts: Quonset used for copra storage demolished by virtue of Ordinance No. 147 which
states that structures that do not conform to the Zoning regulations should be relocated and
failure to do so would entail condemnation or removal at owner’s expense.

FACTS:
A Quonset in Basilan – constructed in 1944 by the American Liberation Forces;
purchased by Gregoria Francisco (died in 1976) in 1946; stands on land owned by the
Philippine Ports Authority (PPA) – was ordered demolished by the Municipal Mayor,
Valencia in view of Proc. No. 83 issued by Pres. Quirino declared land for the exclusive
use of port facilities.

On January 10, 1989: PPA issued to Tan Gin San, the husband of deceased Francisco, a
permit to occupy the building for a year, until December 31, 1989. On 8 May 1989,
Respondent Mayor, through respondent Municipal Action Officer, notified Tan Gin San
by mail to remove or relocate its quonset building, citing Zoning Ordinance No. 147 of
the municipality; noting its antiquated and dilapidated structure; and. stressing the
"clean-up campaign on illegal squatters and unsanitary surroundings along Strong
Boulevard." Since the notifications remained unheeded by petitioner, Respondent
Mayor ordered the demolition on 24 May 1989.

Aggrieved, petitioner sought a Writ of Prohibition with Injunction and Damages.

RTC: denied the writ and upheld power of Mayor to order demolition without judicial
authority. Subsequently, Quonset was completely demolished.

CA (1st decision): reversed RTC; Quonset not a nuisance per se; Mayor needed judicial
decision. CA (2nd decision): reversed itself; deficiency (lack of judicial declaration) cured
when petitioner filed the petition for prohibition and was heard on oral argument.

ISSUE:
Whether the Mayor could summarily, without judicial process, order the demolition of
petitioner’s Quonset building.
RULING:
NO.
Firstly, Respondent justify the demolition in the exercise of police power. It also relies
on Ordinance No. 147 of the Municipality of Isabela. For its part petitioner consistently
denies to the Mayor, such power, invoking provisions of the Local Government Code.

Ordinance No. 147, and relied upon by respondents, is entitled "An Ordinance
Establishing Comprehensive Zoning Regulations for the Municipality of Isabela" It is not
disputed that the quonset building, which is being used for the storage of copra, is
located outside the zone for warehouses. It is referred to in Ordinance as a non-
conforming structure, which should be relocated. And in the event that an immediate
relocation of the building can not be accomplished, Section 16 of the Ordinance
provides: “A certificate of non-conformance for all non-conforming uses shall be applied for by the
owner or agent of the property involved within twelve (12) months from the approval of this
Ordinance, otherwise the non-conforming use may be condemned or removed at the owner's
expense.”

Even granting that petitioner failed to apply for a Certificate of Non-conformance, the
foregoing provision should not be interpreted as authorizing the summary removal of a
non-conforming building by the municipal government. For if it does, it must be struck
down for being in contravention of the requirements of due process.

Moreover, the COURT RULED that respondents can not seek cover under the general
welfare clause authorizing the abatement of nuisances without judicial proceedings.
That tenet applies to a nuisance per se or one which affects the immediate
safety of persons and property and may be summarily abated under the
undefined law of necessity. The storage of copra in the quonset building is a
legitimate business. By its nature, it can not be said to be injurious to rights of property,
of health or of comfort of the community. If it be a nuisance per accidens it may be so
proven in a hearing conducted for that purpose. It is not per se a nuisance warranting its
summary abatement without judicial intervention.

To summarize the ratio: Municipal Mayor is not empowered to order a summary

removal of the structure; Violation of the ordinance neither empowers the Municipal
Mayor to avail of extra-judicial remedies. The latter remedies only apply to nuisance per
se – affects the immediate safety of persons and property and may be summarily abated
under the undefined law of necessity. While the Sangguniang Bayan may provide for the
abatement of a nuisance (Local Government Code), it can not declare a particular thing
as a nuisance per se and order its condemnation. The nuisance can only be so adjudged
by judicial determination

WHEREFORE, the judgment under review of respondent Court of Appeals, dated 13 June 1990, is SET
ASIDE; its original Decision, promulgated on 25 January 1990, is REINSTATED; and this case is ordered
 REMANDED to the Regional Trial Court of Basilan, Branch 2, for the determination of the just
compensation due petitioner for the demolition of its quonset building.

Rana v. Wong, et al.; Uy, et al. v. Rana

[G.R. No. 192861, June 30, 2014]

FACTS:
Teresita Lee Wong (Wong) and Sps. Ong are co-owners pro-indiviso of a residential land
situated in Peace Valley Subdivision, Lahug, Cebu City, abutting a 10-meter wide
subdivision road (subject road). On the opposite side of the subject road, across the
Wong-Ong property, are the adjacent lots of Sps Uy and Sps Rana.

Sps. Rana elevated and cemented a portion of the subject road that runs between the
Rana and Wong-Ong properties (subject portion) in order to level the said portion with
their gate. Sps. Rana likewise backfilled a portion (subject backfilling) of the perimeter
fence separating the Rana and Uy properties without erecting a retaining wall that
would hold the weight of the added filling materials.

Wong, Sps. Ong, and Sps. Uy (Wong, et al.) filed a Complaint for Abatement of
Nuisance with Damages against Sps. Rana before the RTC. RTC found that the backfilling
done by Sps. Rana on their property exerted pressure on the perimeter fence of the Uy
property, thereby constituting a nuisance. CA affirmed the decision of RTC.

ISSUE:
(1) Whether or not Sps. Rana’s act of elevating and cementing a portion of the subject
road and backfilling can be considered a nuisance; and (2) whether Sps. Uy should
remove their fence along the common boundary and return the encroached portion to
Sps. Rana

RULING:
(1) YES, but not a nuisance per se. With respect to the elevated and cemented subject
portion, the Court ruled that it is not a nuisance per se but a nuisance per accidens;
thus, it couldn’t be summarily abated. Wong et. al.’s demolition of said subject portion
is unwarranted so Sps. Rana is entitled to damages.

Furthermore, since Sps. Rana introduced a nuisance per accidens that transgressed
Wong et al.’s rights to the unobstructed use of free passage over the subject road, Sps.
Rana is ALSO liable for damages. As a result, the said parties offset each other’s liability
for damages.

(2) Yes. Based on the relocation survey conducted by the Court’s appointed
commissioner, Atty. Pintor, Uy’s perimeter fence encroached on 2 sq.m. of the Rana
property. Sps. Rana are therefore entitled to the return of the 2 sq.m. encroached
 portion. Building a retaining wall on their property shall be held in abeyance pending the
return of the encroached portion.

Timoner v. People of the Philippines

[G.R. No. 62050, November 25, 1983]

FACTS: Jose Timoner, the petitioner, was convicted by the Municipal Court of Daet with the
crime of Grave Coercion, as penalized under Art. 286 of the Revised Penal Code, because of the
complaint by Pascual Dayaon, Lourdes Rabustillos and others. Timoner, then Mayor of Daet,
together with two uniformed policemen, Samuel Morena and Ernesto Quibral, and six laborers,
was acting on the recommendation of Dra. Allegre, the Municipal Health Officer, to close
among other structures that were along the sidewalk, the barbershop of Dayaon and store of
Rabustillos. Timoner filed a complaint in the CFI of Camarines Norte against Rebustillos and
others for judicial abatement of their stalls, alleged that the stalls constituted public nuisances
as well as per se. The petitioner appealed to the Court of Appeals, which was the Intermediate
Appellate Court then, however, the CA affirmed in full the judgment of the trial court .
Petitioner claimed that their actions was done in abatement of a public nuisance and,
therefore, under lawful authority.

ISSUES: Whether or not Timoner committed Grave Coercion. Whether or not the structures
among the sidewalk are constituted as public nuisances, and nuisances per se. Whether or not
Timoner was within his authority to close the structures.

RULING: The petitioner was ACQUITTED of the crime charged. He did not commit Grave
Coercon as the elements of Grave Coercion required that he acted not under the authority of
the law. As the then Mayor of the City, Timoner had the authority to act on behalf of the
recommendation and his constituents’ right to public order and safety, and that such stalls
along the sidewalk affected the community and general public, as it is in a public place, and was
annoying to all who come within its sphere. The Supreme Court did contend that the
barbershop did constitute a public nuisance, as defined under Article 694 and 695 of the Civil
Code of the Philippines. Furthermore, it had been recommended for closure by the Municipal
Health Officer.

Other Ruling: The barbershop occupied a portion of the sidewalk of the poblacion's main
thoroughfare and had been recommended for closure by the Municipal Health Officer. In the
case at bar, petitioner, as mayor of the town, merely implemented the aforesaid
recommendation of the Municipal Health Officer. Having then acted in good faith in the
performance of his duty, petitioner incurred no criminal liability. Grave coercion is committed
when "a person who, without authority of law, shall by means of violence, prevent another
from doing something not prohibited by law or compel to do something against his will, either
it be right or wrong." The element of lack of authority is absent in the case at bar, petitioner
cannot be held guilty of grave coercion

Perez v. Madrona, et al.

[G.R. No. 184478, March 21, 2012]

FACTS: Respondent-spouses Fortunito Madrona and Yolanda B. Pante are registered owners
of a residential property located in Greenheights Subdivision in Marikina City where they built
their house and had it enclosed with a steel gate and concrete fence.

They received a letter from petitioner Jaime S. Perez, Chief of the Marikina Demolition Office
stating that the structure they built encroached on the sidewalk and is in violation of PD 1096
of the National Building Code and RA 917 on Illegally occupied/ constructed improvements
within the road right-of-way and ordered the respondents to have the said structure removed
within 7 days.

Respondent sent a letter to the petitioner stating that the letter sent by the latter contained a
libelous accusation as it is condemning him and his property without due process and has no
basis and authority because there is no court order authorizing him to demolish the structure,
the cited legal bases in the letter that do not expressly give petitioner the authority to demolish
and the letter contained a false accusation since their fence did not in fact extend to the
sidewalk

After more than a year, the petitioner sent the respondents the same letter giving them 10 days
from the receipt thereof to remove the said structure. Respondents filed a complaint for
injunction before the Marikina City RTC and sought the issuance of a TRO and a writ of
preliminary injunction to enjoin petitioner and all persons acting under him from doing any act
of demolition on their property and that after trial, the injunction be made permanent. The RTC
decision permanently enjoined defendant Perez from destroying or demolishing the
respondents’ property.

The RTC held that respondents, being lawful owners of the subject property, are entitled to the
peaceful and open possession of every inch of their property and petitioner’s threat to demolish
the concrete fence around their property is tantamount to a violation of their rights as property
owners who are entitled to protection under the Constitution and laws. The RTC also ruled that
there is no showing that respondents’ fence is a nuisance per se and presents an immediate
danger to the community’s welfare, nor is there basis for petitioner’s claim that the fence has
encroached on the sidewalk as to justify its summary demolition. CA affirmed.
ISSUE: Whether respondents’ structure is a nuisance per se that presents immediate danger to
the community’s welfare and can be removed without need of judicial intervention since the
clearing of the sidewalks is an infrastructure project of the Marikina City Government and
cannot be restrained by the courts as provided in PD No. 1818

RULING: NO. If petitioner found respondents’ fence to have encroached on the sidewalk, the
remedy is not to demolish the same after respondents failed to heed his request to remove it
but instead, he should go to court and prove respondents’ supposed violations in the
construction of the concrete fence. Unless a thing is a nuisance per se one which affects the
immediate safety of persons and property and may be summarily abated under the undefined
LAW OF NECESSITY, it may not be abated summarily without judicial intervention.

Respondents’ fence is not a nuisance per se because by its nature, it is not injurious to the
health or comfort of the community but was built primarily to secure the property of
respondents and prevent intruders from entering it. If petitioner believes that respondents’
fence indeed encroaches on the sidewalk, it may be so proven in a hearing conducted for that
purpose. Not being a nuisance per se, but at most a nuisance per accidens, its summary
abatement without judicial intervention is unwarranted.
 Cayabyab v. Dimson
[G.R. No. 223862, July 10, 2017]

FACTS: (Dimson) is the owner of a poultry farm located in Barangay Prado Siongco, Lubao,
Pampanga (subject poultry farm) which had been operating for more than 30 years. In January
2014, he applied for a barangay clearance with the office of petitioner Prado Siongco
Barangay Chairman Angelito L. David (Chairman David), preparatory to his application for a
business permit, and was informed that the issuance thereof is conditioned on a prior ocular
inspection of the subject poultry farm by the Office of the Mayor, Mayor Cayabyab.

On April 29, 2014, Dimson received a CDO dated April 28, 2014 from Mayor Cayabyab,
directing him to desist from further conducting any poultry farming on the grounds of: (a) lack
of a Barangay Business Permit and a Mayor's Permit; (b) lack of a pollution control officer; (c)
foul odor being emitted by the subject poultry farm that offended passing motorists, and for
which complaints were filed by those affected; and (d) the said poultry farm being situated only
five (5) meters away from the national road, in violation of the 500-meter minimum distance
requirement under the Code of Sanitation of the Philippines.

Dimson denied that there was foul odor coming from his poultry farm, at the same time,
manifesting that he had already employed a pollution control office. Dimson contended that
contending that the subject poultry farm is not a nuisance per se that can be abated by the
local government without the intervention of the courts. Eventually, the subject farm was
eventually shut down.

Dimson filed a Petition for Certiorari, Mandamus, Prohibition (With Application for Preliminary
Mandatory Injunction)18 and prayed for the issuance of a TRO against Mayor Cayabyab and
Chairman David (petitioners) before the RTC of Guagua, Pampanga

Petitioner maintained that his poultry farm is not a nuisance per se that can be summarily
abated; hence, respondents grossly abused their discretion

Respondents averred that: (a) the non-issuance of the Barangay Business Permit was based
on valid grounds as there were written complaints against the operation of the poultry farm,
and a public hearing was conducted thereon; (b) the non-issuance of the Mayor's Permit was
justified considering the lack of a Barangay Business Permit; (c) the issuance of the CDO and
Closure Order was justified and in accordance with due process; and (d) the poultry farm
violated not only the Sanitation Code but also the Comprehensive Land Use Plan and Zoning
Ordinance requiring poultry farms to be 500 meters away from the major roads and/or
highways.

RTC denied Dimson's application for TRO for failure to establish a clear and unmistakable right
to the said issuance and to show that he will suffer irreparable injury. Moreover, the RTC
opined that the issue of whether or not petitioners have the right to order the closure of the
subject farm is best threshed out in the main case.

CA granted the petition, and directed the RTC to issue a TRO against the implementation of the
CDO and the Closure Order of Mayor Cayabyab. The CA ruled that the RTC gravely abused its
discretion in denying Dimson's application for a TRO which was essentially rooted on a
determination of whether the subject poultry farm is a nuisance per se or a nuisance per
accidens.

ISSUE: Whether or not the CA committed reversible error in directing the issuance of a TRO
against the implementation of the CDO and the Closure Order of Mayor Cayabyab.

RULING:
Preliminarily, contrary to the CA's ruling, the grant or denial of Dimson's application for
TRO was not essentially rooted on a determination of whether the subject poultry farm
is a nuisance per se or a nuisance per accidens, but rather on whether or not there was
an ostensible showing of a sufficient justification for the issuance of the CDO and the
Closure Order. Corollary is the issue of whether or not there were prima facie valid
reasons for the withholding of the barangay clearance, which is a prerequisite to the
renewal of Dimson's business permit to operate.

A business permit must be secured from the municipal business permits and licensing
office in order for the business to legally operate in the locality.41 While poultry farming
is admittedly a legitimate business, it cannot operate without a business permit, which
expires on the 31st of December of every year and must be renewed before the end of
January of the following year.

In the present case, there is no showing that Dimson filed any application for renewal of
his business permit to operate the subject poultry farm in 2014, apparently due to his
failure to secure the necessary barangay clearance which was not issued based on
complaints of foul odor being emitted by the said farm. Records show that complaints
from neighboring barangays were received by the office of Mayor Cayabyab

In this case, Dimson was unable to refute the finding that foul odor is being emitted by
his farm. Not having passed the necessary sanitation standard, there was, therefore, a
prima facie valid reason for the withholding of the required barangay clearance, which
is a prerequisite to the renewal of Dimson's business permit to operate.
Accordingly, no error, much less grave abuse of discretion can be ascribed on the RTC in
denying Dimson's application for the issuance of a TRO against the said orders. In the
absence of a business permit, Dimson has no clear legal right to resume his operations
pending final determination by the RTC of the merits of the main case for certiorari,
mandamus, and prohibition. A clear legal right means one clearly founded in or granted
by law or is enforceable as a matter of law, which is not extant in the present case. It is
settled that the possibility of irreparable damage without proof of an actual existing
right is not a ground for the issuance of an injunctive relief