April 18, 2017 On 2 April 2012, DMCI-PDI secured its
Barangay Clearance to start the construction
G.R. No. 213948
KNIGHTS OF RIZAL, Petitioner.
vs.
DMCI HOMES, INC., DMCI PROJECT
DEVELOPERS, INC., CITY OF MANILA,
NATIONAL COMMISSION FOR CULTURE
AND THE ARTS, NATIONAL HISTORICAL
COMMISSION OF THE
PHILIPPINES, Respondents.
DECISION
CARPIO, J.:
Bury me in the ground, place a stone and a
cross over it.
My name, the date of my birth, and of my
death. Nothing more.
If you later wish to surround my grave with a
fence, you may do so.
No anniversaries. I prefer Paang Bundok.
- Jose Rizal
The Case
Before this Court is a Petition for Injunction,
with Applications for Temporary Restraining
Order, Writ of Preliminary Injunction, and
Others 1 filed by the Knights of Rizal (KOR)
seeking, among others, for an order to stop
the construction of respondent DMCI Homes,
Inc. 's condominium development project
known as the Torre de Manila. In its
Resolution dated 25 November 2014, the
Court resolved to treat the petition as one for
mandamus. 2
The Facts
On 1 September 2011, DMCI Project
Developers, Inc. (DMCI-PDI) 3 acquired a
7,716.60-square meter lot in the City of
Manila, located near Taft Avenue, Ermita,
beside the former Manila Jai-Alai Building
and Adamson University.4 The lot was
earmarked for the construction of DMCI-PDI's
Torre de Manila condominium project.
of its project. It then obtained a Zoning Permit
from the City of Manila's City Planning and
Development Office (CPDO) on 19 June
2012.5
Then, on 5 July 2012, the City of Manila's
Office of the Building Official granted DMCI-
PDI a Building Permit, allowing it to build a
"Forty Nine (49) Storey w/ Basement & 2
penthouse Level Res'l./Condominium" on the
property. 6
On 24 July 2012, the City Council of Manila
issued Resolution No. 121 enjoining the
Office of the Building Official to temporarily
suspend the Building Permit of DMCI-PDI,
citing among others, that "the Torre de Manila
Condominium, based on their development
plans, upon completion, will rise up high
above the back of the national monument, to
clearly dwarf the statue of our hero, and with
such towering heights, would certainly ruin
the line of sight of the Rizal Shrine from the
frontal Roxas Boulevard vantage point[.]"7
Building Official Melvin Q. Balagot then
sought the opinion of the City of Manila's City
Legal Officer on whether he is bound to
comply with Resolution No. 121.8 In his letter
dated 12 September 2012, City Legal Officer
Renato G. Dela Cruz stated that there is "no
legal justification for the temporary
suspension of the Building Permit issued in
favor of [DMCI-PDI]" since the construction
"lies outside the Luneta Park" and is "simply
too far to I be a repulsive distraction or have
an objectionable effect on the artistic and
historical significance" of the Rizal
Monument. 9 He also pointed out that "there
is no showing that the [area of subject
property has been officially declared as an
anthropological or archeological area. Neither
has it ' been categorically designated by the
National Historical Institute as a heritage
zone, a cultural property, a historical
landmark or even a national treasure."
Subsequently, both the City of Manila and
DMCI-PDI sought the opinion or the National
Historical Commission of the Philippines
(NHCP) on the matter. In the letter10 dated 6
November 2012 from NHCP I Chairperson
Dr. Maria Serena I. Diokno addressed to
DMCI-PDI and the letter 11 dated 7 November
2012 from NHCP Executive Director III
Ludovico D. Bado)f addressed to then Manila
Mayor Alfredo S. Lim, the NHCP maintained
that the Torre de Manila project site is outside
the boundaries of the Rizal f.ark and well to
the rear of the Rizal Monument, and thus,
cannot possibly obstruct the frontal view of
the National Monument.
On 26 November 2013, following an online
petition against the Torre de Manila project
that garnered about 7,800 signatures, the
City Council of Manila issued Resolution No.
146, reiterating its directive in Resolution No.
121 1 enjoining the City of Manila's building
officials to temporarily suspend ~MCI-PDI's
Building Permit. 12
In a letter to Mayor Joseph Ejercito Estrada
dated 18 December 2013, DMCI-PIDI
President Alfredo R. Austria sought
clarification on the controversy surrounding
its Zoning Permit. He stated that since the
CPDO granted its Zoning Permit, DMCI-PDI
continued with the application for the Building
Permit, which was granted, and did not deem
it necessary to go through the process of
appealing to the local zoning board. He then
expressed DMCI-PDI's willingness to comply
with the process if the City of Manila deemed
it necessary. 13
On 23 December 2013, the Manila Zoning
Board of Adjustments and Appeals (MZBAA)
issued Zoning Board Resolution No. 06,
Series of 2013, 14 recommending the
approval of DMCI-PDI's application for
variance. ;The MZBAA noted that the Torre
de Manila project "exceeds the prescribed
maximum Percentage of Land Occupancy
(PLO) and exceeds the prescribeµ Floor Area
Ratio (FAR) as stipulated in Article V, Section
17 of City Ordinance No. 8119[.]" However,
the MZBAA still recommended the approval
of the variance subject to the five conditions
set under the same resolution.
After some clarification sought by DMCI-PDI,
the MZBAA issued Zoning Board Resolution
No. 06-A, Series of 2013, 15 on 8 January
2014, amending condition (c) in the earlier
resolution. 16
On 16 January 2014, the City Council of
Manila issued Resolution No. 5, Series of
2014, 17 adopting Zoning Board Resolution
Nos. 06 and 06- A. The City Council
resolution states that "the City Council of
Manila find[ s] no cogent reason to deny
and/or reverse the aforesaid recommendation
of the [MZBAA] and hereby ratif[ies] and
confirm[s] all previously issued permits,
licenses and approvals issued by the City
[Council] of Manila for Torre de Manila[.]"
Arguments of the KOR
On 12 September 2014, the KOR, a "civic,
patriotic, cultural, nonpartisan, non-sectarian
and non-profit organization" 18 created under
Republic Act No. 646, 19 filed a Petition for
Injunction seeking a temporary restraining I
order, and later a permanent injunction,
against the construction of DMCIPDI's Torre
de Manila condominium project. The KOR
argues that the subject matter of the present
suit is one of "transcendental importance,
paramount public interest, of overarching
significance to society, or with far-reaching
implication" involving the desecration of the
Rizal Monument.
The KOR asserts that the completed Torre de
Manila structure will "[stick] out like a sore
thumb, [dwarf] all surrounding buildings within
a radius of two kilometer/s" and "forever ruin
the sightline of the Rizal Monument in Luneta
Park: Torre de Manila building would loom at
the back I and overshadow the entire
monument, whether up close or viewed from
a distance. ''20
Further, the KOR argues that the Rizal
Monument, as a National Treasure, is entitled
to "full protection of the law"21 and the
national government must abate the act or
activity that endangers the nation's cultural
heritage "even against the wishes of the local
government hosting it." 22
Next, the KOR contends that the project is a
nuisance per se23 because "[t]he despoliation
of the sight view of the Rizal Monument is a
situation that annoy's or offends the senses'
of every Filipino who honors the memory of
the National Hero Jose Rizal. It is a present,
continuing, worsening and aggravating status
or condition. Hence, the PROJECT is a
nuisance per se. It deserves I to be abated
summarily, even without need of judicial
proceeding. "24
The KOR also claims that the Torre de Manila
project violates the NHCP's Guidelines on
Monuments Honoring National Heroes,
Illustrious Filipinos and Other
Personages, which state that historic
monuments should assert a visual
"dominance" over its surroundings,25 as well
as the country's commitment under
the International Charter for the Conservation
and Restoration of Monuments and
Sites, otherwise known as the Venice
Charter. 26
Lastly, the KOR claims that the DMCI-PDI's
construction was commenced and continues
in bad faith, and is in violation of the City of
Manila's zoning ordinance. 27
Arguments of DMCI-PDI
In its Comment, DMCI-PDI argues that the
KOR's petition should be dismissed on the
following grounds:
I.
THXS HONORABLE COURT HAS NO
JURISDICTION OVER THIS ACTION.
II.
KOR HAS NO LEGAL RIGHT OR INTEREST
TO FILE OR PR0SECUTE THIS ACTION.
III.
TORRE DE MANILA IS NOT A NUISANCE
PER SE.
IV.
DMCI-PDI ACTED IN GOOD FAITH IN
CONSTRUCTING TORRE DE MANILA; AND
V.
KOR IS NOT ENTITLED TO A TEMPORARY
RESTRAINING ORPER AND/OR A WRIT OF
PRELIMINARY INJUNCTION. 28
First, DMCI-PDI asserts that the Court has no
original jurisdiction over actions for
injunction.29 Even assuming that the Court
has concurrent jurisdiction, DMCI-PDI
maintains that the petition should still have
been filed with the Regional Trial Court under
the doctrine of hierarchy of courts and
because the petition involves questions of
fact. 30
DMCI-PDI also contends that the KOR's
petition is in actuality an opposition' or appeal
from the exemption granted by the City of
Manila's MZBAA, a matter which is also not
within the jurisdiction of the Court. 31 DMCI-
PDI claims that the proper forum should be
the MZBAA, and should the KOR fail there, it
should appeal the same to the Housing and
Land Use Regulatory Board (HLURB). 32
DMCI-PDI further argues that since the Rizal
Monument has been declared a National
Treasure, the power to issue a cease and
desist order is lodged with the "appropriate
cultural agency" under Section 25 of Republic
Act No. li0066 or the National Cultural
Heritage Act of 2009. 33 Moreover, DMCI-PDI
asserts that the KOR availed of the wrong
remedy since an action for injunction is not
the proper remedy for abatement of a
nuisance. 34
Second, DMCI-PDI maintains that the KOR
has no standing to institute this proceeding
because it is not a real party in interest in this
case. The purposes of the KOR as a public
corporation do not include the preservation of
the Rizal Monument as a cultural or historical
heritage site.35 The KOR has also not shown
that it suffered an actual or threatened injury
as a result of the alleged illegal conduct of the
City of Manila. If there is any injury to the
KOR at all, the same was caused by the
private conduct of a private entity and not the
City of Manila. 36
Third, DMCI-PDI argues that the Torre de
Manila is not a nuisance per se. DMCI-PDI
reiterates that it obtained all the necessary
permits, licenses, clearances, and certificates
for its construction. 37 It also refutes the
KOR's claim that the Torre de Manila would
dwarf all other structures around it;
considering that there are other tall buildings
even closer to the Rizal Monument itself,
namely, the Eton Baypark Tower at the
corner of Roxas Boulevard and T.M. Kalaw
Street (29 storeys; 235 meters from the Rizal
Monument) and Sunview Palace at the corner
of M.H. Del Pilar and T.M. Kalaw Streets (42
storeys; 250 meters from the Rizal
Monument). 38
Fourth, DMCI-PDI next argues that it did not
act in bad faith when it started construction of
its Torre de Manila project. Bad faith cannot
be attributed to it since it was within the
"lawful exercise of [its] rights." 39 The KOR
failed to present any proof that DMCI-PDI did
not follow the proper procedure and zoning
restrictions of the City of Manila. Aside from
obtaining all the necessary permits from the
appropriate government agencies,40 DMCI-
PDI also sought clarification on its right to
build on its site from the Office of the City
Legal Officer of Manila, the Manila CPDO,
and the NHCP.41 Moreover, even if the KOR
proffered such proof, the Court would be 1 in
no position to declare DMCI-PDI's acts as
illegal since the Court is not a trier of facts. 42
Finally, DMCI-PDI opposes the KOR's
application for a Temporary Restraining
Order (TRO) and writ of preliminary
injunction. DMCI-PDI asserts that the KOR
has failed to establish "a clear and
unmistakable right to enjoin I the construction
of Torre de Manila, much less request its
demolitior."43 DMCI-PDI further argues that it
"has complied with all the legal requirements
for the construction of Torre de Manila x x x
[and] has violated o right of KOR that must be
protected. Further, KOR stands to suffer o
damage because of its lack of direct
pecuniary interest in this petiti1 on. To grant
the KOR's application for injunctive relief
would constitute an unjust taking of property
without due process of law. "44
Arguments of the City of Manila
In its Comment, the City of Manila argues that
the writ of mandamus cannot issue
"considering that no property or substantive
rights whatsoever in favor of [the KOR] is
being affected or x x x entitled to judicial
protection[.]"45
The City of Manila also asserts that the
"issuance and revocation of a Building Permit
undoubtedly fall under the category of a
discretionary act or duty performed by the
proper officer in light of his meticulous
appraisal and evaluation of the pertinent
supporting documents of the application in
accordance with the rules laid out under the
National Building Code [and] Presidential
Decree No. 1096,"46 while the remedy of
mandamus is available only to compel the
performance of a ministerial duty. 47
Further, the City of Manila maintains that the
construction of the Torre de Manila did not
violate any existing law, since the "edifice [is]
well behind (some 789 meters away) the line
of sight of the Rizal Monument."48 It adds that
the City of Manila's "prevailing Land Use and
Zoning Ordinance [Ordinance No. 8119] x xx
allows an adjustment in Floor Area Ratios
thru the [MZBAA] subject to further final
approval of the City Council."49 The City
Council adopted the MZBAA's favorable:
recommendation in its Resolution No. 5,
ratifying all the licenses and permits issued to
DMCI-PDI for its Torre de Manila project.
In its Position Paper dated 15 July 2015, the
City of Manila admitted that the Zoning Permit
issued to DMCI-PDI was "in breach of certain
provisions of City Ordinance No. 8119."50 It
maintained, however, 1 that the deficiency is
"procedural in nature and pertains mostly td
the failure of [DMCI-PDI] to comply with the
stipulations that allow an excess in the [FAR]
provisions." 51 Further, the City of Manila
argued that the MZBAA, when it
recommended the allowance of the project's
variance, imposed certain conditions upon
the Torre de Manila project in order to
mitigate the possible adverse effects of an
excess FAR. 52
The Issue
The issues raised by the parties can be
summed up into one main point: Can the
Court issue a writ of mandamus against the
officials of the City of Manila to stop the
construction of DMCI-PDI's Torre de Manila
project?
The Court's Ruling
The petition for mandamus lacks merit and
must be dismissed.
 There is no law prohibiting the
construction of the Torre de Manila.
In Manila Electric Company v. Public Service
Commission,53 the Court held that "what is
not expressly or impliedly prohibited by
law may be done, except when the act is
contrary to morals, customs and I public
order." This principle is fundamental in a
democratic society, to protect the weak
against the strong, the minority against the
majority, and the individual citizen against the
government. In essence, this principle, which
is the foundation of a civilized society under
the rule of law, prescribes that the freedom to
act can be curtailed only through law. Without
this principle, the rights, freedoms, and civil
liberties of citizens can be arbitrarily and
whimsically trampled upon by the shifting
passions of those who can spout the loudest,
or those who can gather the biggest crowd or
the most number of Internet trolls. In other
instances,54 the Court has allowed or upheld
actions that were not expressly prohibited by
statutes when it determined that these acts
were not contrary to morals, customs, and
public order, or that upholding the same
would lead to a more equitable solution to the
controversy. However, it is the law itself -
Articles 130655 and 1409(1)56 of the Civil
Code - which prescribes that acts not
contrary to morals, good customs, public
order, or public policy are allowed if also not
contrary to law.
In this case, there is no allegation or proof
that the Torre de Manila project is "contrary to
morals, customs, and public order" or that it
brings harm, danger, or hazard to the
community. On the contrary, the City of
Manila has determined that DMCI-PDI
complied with the standards set under the
pertinent laws and local ordinances to
construct its Torre de Manila project.
There is one fact that is crystal clear in this
case. There is no law prohibiting the
construction of the Torre de Manila due to its
effect on the background "view, vista,
sightline, or setting" of the Rizal Monument.
Specifically, Section 47 reads:
SEC. 47. Historical Preservation and
Conservation Standards. - Historic site and
facilities shall be conserved and preserved.
These shall, to the extent possible, be made
accessible for the educational and cultural
enrichment of the general public.
The following shall guide the development
of historic sites and facilities:
1. Sites with historic buildings or places shall
be developed to conserve and enhance their
heritage values.
2. Historic sites and facilities shall be
adaptively re-used.
3. Any person who proposes to add, to alter,
or partially demolish a designated heritage
property will require the approval of the City
Planning and Development Office (CPDO)
and shall be required to prepare a heritage
impact statement that will demonstrate to the
satisfaction of CPDO that the proposal will
not adversely impact the heritage significance
of the property and shall submit plans for
review by the CPDO in coordination with the
National Historical Institute (NHI).
4. Any proposed alteration and/or re-use of
designated heritage properties shall be
evaluated based on criteria established by
the heritage significance of the particular
property or site.
5. Where an owner of a heritage property
applies for approval to demolish a designated
heritage property or properties, the owner
shall be required to provide evidence to
satisfaction that demonstrates that
rehabilitation and re-use of the property is not
viable.
6. Any designated heritage property which is
to be demolished or significantly altered shall
be thoroughly documented for archival
purposes with! a history, photographic
records, and measured drawings, in
accordance with accepted heritage recording
guidelines, prior to demolition or alteration.
7. Residential and commercial infill in
heritage areas will be sensitive to the existing
scale and pattern of those areas, which
maintains the existing landscape and
streetscape qualities of those areas, and
which does not result in the loss of any
heritage resources.
8. Development plans shall ensure that
parking facilities (surface lots residential
garages, stand-alone parking garages and
parking components as parts of larger
developments) are compatibly integrated into
heritage areas, and/or are compatible with
adjacent heritage resources.
9. Local utility companies (hydro, gas,
telephone, cable) shall be required to place
metering equipment, transformer boxes,
power lines, conduit, equipment boxes,
piping, wireless telecommunication towers
and other utility equipment and devices in
locations which do not detract from the visual
character of heritage resources, and which do
not have a negative impact on its
architectural integrity.
10. Design review approval shall be secured
from the CPDO for any alteration of the
heritage property to ensure that design
guidelines and standards are met and shall
promote preservation and conservation of the
heritage property. (Emphasis supplied)
It is clear that the standards laid down in
Section 47 of Ordinance No. 8119 only serve
as guides, as it expressly states that "the
following shall guide the :development of
historic sites and facilities." A guide simply
sets a direction 'or gives an instruction to be
followed by prope1iy owners and developers
in order to conserve and enhance a
property's heritage values.
On the other hand, Section 48 states:
SEC. 48. Site Performance Standards. - The
City considers it in the public interest that all
projects are designed and developed in a
safe, efficient and aesthetically pleasing
manner. Site development shall consider the
environmental character and limitations of the
site and its adjacent properties. All project
elements shall be in complete harmony
according to good design principles and the
subsequent development must be visually
pleasing as well as efficiently functioning
especially in relation to the adjacent
properties and bordering streets.
The design, construction, operation and
maintenance of every facility shall be in
harmony with the existing and intended
character of its neighborhood. It shall not
change the essential character of the said
area but will be a substantial improvement to
the value of the properties in the
neighborhood in particular and the community
in general.
Furthermore, designs should consider the
following:
1. Sites, buildings and facilities shall be
designed and developed with1 regard to
safety, efficiency and high standards of
design. The natural environmental character
of the site and its adjacent properties shall be
considered in the site development of each
building and facility.
2. The height and bulk of buildings and
structures shall be so designed that it does
not impair the entry of light and ventilation,
cause the loss I of privacy and/or create
nuisances, hazards or inconveniences to
adjacent developments.
3. Abutments to adjacent properties shall not
be allowed without the neighbor's prior written
consent which shall be required by the City
Planning and Development Office (CPDO)
prior to the granting of a Zoning Permit
(Locational Clearance).
4. The capacity of parking areas/lots shall be
per the minimum requirements of the National
Building Code. These shall be located,
developed and landscaped in order to
enhance the aesthetic quality of the facility. In
no case, shall parking areas/lots encroach
into street rights-of-way and shall follow the
Traffic Code as set by the City.
5. Developments that attract a significant
volume of public modes of transportation,
such as tricycles, jeepneys, buses, etc., shall
provide on-site parking for the same. These
shall also provide vehicular loading and
unloading bays so as street traffic flow will not
be impeded.
6. Buffers, silencers, mufflers, enclosures and
other noise-absorbing I materials shall be
provided to all noise and vibration-producing
machinery. Noise levels shall be maintained
according to levels specified in DENR DA9
No. 30 - Abatement of Noise and Other
Forms of Nuisance as Defined by Law.
7. Glare and heat from any operation or
activity shall not be radiated, seen or felt from
any point beyond the limits of the property.
8. No large commercial signage and/or
pylon, which will be detrimental to the
skyline, shall be allowed.
9. Design guidelines, deeds of restriction,
property management plans and other
regulatory tools that will ensure high quality
developments shall be required from
developers of commercial subdivisions and
condominiums. These shall be submitted to
the City Planning and Development Office
(CPDO) for review and approval. (Emphasis
supplied)
Se9tion 4 7 of Ordinance No. 8119
specifically regulates the "development of
historic sites and facilities." Section 48
regulates "large commercial signage
and/or pylon." There is nothing in Sections
47 and 48 of Ordinance No. 8119 that
disallows the construction of a building
outside the boundaries of a historic site or
facility, where such building may affect the1
background of a historic site. In this case, the
Torre de Manila stands 870 meters outside
and to the rear of the Rizal Monument and
"cannot possibly obstruct the front view of the
[Rizal] Monument." 57 Likewise, ;the Torre de
Manila is not in an area that has been
declared as an "anthropological or
archeological area" or in an area designated
as a heritage zone, cultural property,
historical landmark, or a national treasure by
the NHCP. 58
Section 15, Article XIV of the Constitution,
which deals with the subject of arts and
culture, provides that "[t]he State shall
conserve, promote and popularize the
nation's historical and cultural heritage and
resources x x x." Since this provision is not
self-executory, Congress passed laws
dealing with the preservation and
conservation of our cultural heritage.
One such law is Republic Act No. 10066,59 or
the National Cultural Heritage Act of
2009, which empowers the National
Commission for Culture and the Arts and
other cultural agencies to issue a cease and
desist order "when the physical integrity of
the national cultural treasures or important
cultural properties [is] found to be in danger
of destruction or significant alteration
from its original state."60 This law declares
that the State should protect the "physical
integrity" of the heritage property or building if
there is "danger of destruction or significant
alteration from its original state." Physical
integrity refers to the structure itself - how
strong and sound the structure is. The
same law does not mention
that another project, building, or property, not
itself a heritage property or building, may be
the subject of a cease and desist order when
it adversely affects the background view,
vista, or sightline of a heritage property or
building. Thus, Republic Act No. 10066
cannot apply to the Torre de Manila
condominium project.
Mandamus does not lie against the City of
Manila.
The Constitution states that "[n]o person shall
be deprived of life, liberty or 1property without
due process of law x x x." 61 It is a
fundamental principle that no property shall
be taken away from an individual without due
process, whether substantive or procedural.
The dispossession of property, or in this case
the stoppage of the construction of a building
in one's own property would violate
substantive due process.
The Rules on Civil Procedure are clear that
mandamus only issues when there is a clear
legal duty imposed upon the office or the
officer sought to be compelled to perform an
act, and when the party seeking mandamus
has a clear legal right to the performance of
such act.
In the present case, nowhere is it found in
Ordinance No. 8119 or in any law, ordinance,
or rule for that matter, that the construction of
a building outside the Rizal Park is prohibited
if the building is within the background
sightline or view of the Rizal Monument.
Thus, there is no legal duty on the part of the
City of Manila "to consider," in the words of
the Dissenting Opinion, "the standards set
under Ordinance No. 8119" in relation to the
applications of DMCI-PDI for the Torre de
Manila since under the ordinance these
standards can never be applied outside
the boundaries of Rizal Park. While the
Rizal Park has been declared a National
Historical Site, the area where Torre de
Manila is being built is a privately-owned
property that is "not pap: of the Rizal Park
that has been declared as a National
Heritage Site in 1095," and the Torre de
Manila area is in fact "well-beyond" the Rizal
Park, according to NHCP Chairperson Dr.
Maria Serena I. Diokno. 62 Neither has the
area of the Torre de Manila been designated
as a "heritage zone, a cultural property, a
historical landmark or even a national
treasure."63
Also, to declare that the City of Manila failed
to consider the standards under Ordinance
No. 8119 would involve making a finding of
fact. A finding lot fact requires notice, hearing,
and the submission of evidence to ascertain
compliance with the law or regulation. In such
a case, it is the Regional Trial Court which
has the jurisdiction to hear the case, receive
evidence, make a proper finding of fact, and
determine whether the Torre de Manila
project properly complied with the standards
set by the ordinance. In Meralco v. Public
Service Commission, 64 we held that it is the
cardinal right of a party in trials and
administrative proceedings to be heard,
which includes the right of the party
interested or affected to present his own case
and submit evidence in support thereof and to
have such evidence presented considered by
the proper court or tribunal.
To compel the City of Manila to consider the
standards under Ordinance No. 8119 to the
Torre de Manila project will be an empty
exercise since these standards cannot apply
outside of the Rizal Park - and the Torre de
Manila is outside the Rizal Park. Mandamus
will lie only if the officials
The KOR also invokes this Court's exercise of
its extraordinary certiorari power of review
under Section 1, Article VIII65 of the
Constitution. However, this Court can only
exercise its extraordinary certiorari power if
the City of Manila, in issuing the required
permits and licenses, gravely abused its
discretion amounting to lack or excess of
jurisdiction. Tellingly, neither the majority
nor minority opinion in this case has found
that the City of Manila committed grave
abuse of discretion in issuing the permits and
licenses to DMCI-PDI. Thus, there is no
justification at all for this Court to exercise its
extraordinary certiorari power.
Moreover, the exercise of this Court's
extraordinary certiorari power is limited to
actual cases and controversies that
necessarily involve a violation of the
Constitution or the determination of the
constitutionality or validity of a governmental
act or issuance. Specific violation of a statute
that does not raise the issue of
constitutionality or validity of the statute
cannot, as a rule, be the subject of the
Court's direct exercise of its
expanded certiorari power. Thus, the KOR's
recourse lies with other judicial remedies or
proceedings allowed under the Rules of
Court.
In Association of Medical Clinics for
Overseas Workers, Inc. v. GCC Approved
Medical Centers Association, Inc., 66 we held
that in cases where the question of
constitutionality of a governmental action is
raised, the judicial power that the courts
exercise is likewise identified as the power of
judicial review - the power to review the
constitutionality of the actions of other
branches of government. As a rule, as
required by the hierarchy of courts
principle, these cases are filed with the lowest
court with jurisdiction over the 1subject
matter. The judicial review that the courts
undertake requires:
1) there be an actual case or controversy
calling for the exercise of judicial power;
2) the person challenging the act must have
"standing" to challenge; he must have a
personal and substantial interest in the case
such that he has sustained, or will sustain,
direct injury as a result of its enforcement;
3) the question of constitutionality must be
raised at the earliest possible opportunity;
and
4) the issue of constitutionality must be the
very lismota of the case.
The lower court's decision under the
constitutional scheme reaches the Supreme
Court through the appeal process, through a
petition for review on certiorari under Rule 45
of the Rules of Court.
In the present case, the KOR elevated this
case immediately to this Court in an original
petition for injunction which we later on
treated as one for mandamus under Rule 65.
There is, however, no clear legal duty on the
City of Manila to consider the provisions of
Ordinance No. 8119 for applications for
permits to build outside the protected areas
of the Rizal Park. Even if there were such
legal duty, the determination of whether the
City of .Manila failed to abide by this legal
duty would involve factual matters which have
not been admitted or established in this case.
Establishing factual matters is not within the
realm of this Court. Findings of fact are the
province of the trial courts.
There is no standard in Ordinance No. 8119
for defining or determining the background
sightline that is supposed to be protected or
that is part of the "physical integrity" of the
Rizal Monument. How far should a building
like the Torre de Manila be from the Rizal
Monument - one, two, three, four, or five
kilometers? Even the Solicitor General,
during the Oral Arguments, conceded that the
ordinance does not prescribe how sightline is
determined, neither is there any way to
measure by metes and bounds whether al
construction that is not part of the historic
monument itself or is outside the
protected area can be said to violate the
Rizal Monument's physicalintegrity, except
only to say "when you stand in front of the
Rizal Monument, there can be no doubt that
your view is marred and impaired." This kind
of a standard has no parameters and can
include a sightline or a construction as far as
the human eyes can see when standing in
front of the Rizal Monument. Obviously, this
Court cannot apply such a subjective and
non-uniform standard that adversely affects
property rights several kilometers away from
a historical sight or facility.
The Dissenting Opinion claims that "the City,
by reason of a mistaken or erroneous
construction of its own Ordinance, had failed
to consider its duties under [Ordinance No.
8119] when it issued permits in DMCI-PDI's
favor." However, MZBAA Zoning Board
Resolution Nos. 06 and 06-A67 easily dispel
this claim. According to the resolutions, the
City of Manila, through the MZBAA, acted on
DMCI-PDI's application for variance under the
powers and standards set forth in Ordinance
No. 8119.
Without further proof that the MZBAA acted
whimsically, capriciously, or arbitrarily in
issuing said resolution, the Court should
respect MZBAA's exercise of discretion. The
Court cannot "substitute its I judgment :for
that of said officials who are in a better
position to consider and weigh the same in
the light of the authority specifically vested in
them by law." 68 Since the Court has "no
supervisory power over the proceedings I and
actions of the administrative departments of
the government," it "should not generally
interfere with purely administrative and
discretionary functions.; 69 The power of the
Court in mandamus petitions does not
extend "to direct the exercise of judgment
or discretion in a particular way or the
retraction or reversal of an action already
taken in the exercise of either."70
Still, the Dissenting Opinion insists on
directing the re-evaluation by the City of
Manila, through the CPDO, of the permits
previously issued in favor of the Torre de
Manila project to determine compliance with
the standards ]under Ordinance No. 8119. It
also declares that the circumstances in this
case warrant the prohacvice conversion of
the proceedings in the issuance of the
permits into a "contested case" necessitating
notice and hearing with all the parties
involved.
Prohac vice means a specific decision does
not constitute a precedent because the
decision is for the specific case only, not to
be followed in other cases. A prohac vice
decision violates statutory law - Article 8 of
the Civil Code - which states that "judicial
decisions applying or interpreting the laws or
the Constitution shall form part of the legal
system of the Philippines." The decision of
the Court in this case cannot be prohac vice
because by mandate bf the
law everydecision of the Court forms part of
the legal system of the Philippines. If another
case comes up with the same facts as the
present case, that case must be decided in
the same way as this case to comply with the
constitutional mandate of equal protection of
the law. Thus, a prohac vice decision also
violates the equal protection clause of the
Constitution.
It is the policy of the courts not to interfere
with the discretionary executive acts of the
executive branch unless there is a clear
showing of grave abuse of discretion
amounting to lack or excess of jurisdiction.
Mandamus does not lie against the legislative
and executive branches or their members
acting in the exercise of their official
discretionary functions. This emanates from
the respect accorded by the judiciary to said
branches as co-equal entities under the
principle of separation of powers.
71
In De Castro v. Salas, we held that no rule
of law is better established than the one that
provides that mandamus will not issue to
control the discretion of an officer or a court
when honestly exercised and when such
power and authority is not abused.
In exceptional cases, the Court has granted a
prayer for mandamus to compel action in
matters involving judgment and discretion,
only "to act, but not to act lone way or the
other," 72 and only in cases where there has
been a clear showing of grave abuse of
discretion, manifest injustice, or palpable
excess of authority.73
In this case, there can be no determination by
this Court that the City of Manila had been
negligent or remiss in its duty under
Ordinance No. 8119 considering that this
determination will involve questions of fact.
DMCI- PDI had been issued the proper
permits and had secured all approvals and
licenses months before the actual
construction began. Even the KOR could not
point to any law that respondent City of
Manila had violated and could only point to
declarations of policies by the NHCP and the
Venice Charter which do not constitute clear
legal bases for the issuance of a writ of
mandam1s.
The Venice Charter is merely a codification of
guiding principles for the preservation and
restoration of ancient monuments, sites, and
buildings. It brings I together principles in the
field of historical conservation and restoration
that have been developed, agreed upon, and
and laid down by experts over the years.
Each country, however, remains "responsible
for applying the plan within the framework of
its own culture and traditions."74
The Venice Charter is not a treaty and
therefore does not become enforceable as
law. The Philippines is not legally bound to
follow its directive, as in fact, these are not
directives but mere guidelines - a set of the
best practices and techniques that have been
proven over the years to be the most effective
in preserving and restoring historical
monuments, sites and buildings.
The City of Manila concedes that DMCI-PDI's
Zoning Permit was granted without going
through the process under Ordinance No.
8119. However, the same was properly
rectified when, faced with mounting
opposition, DMCI-PDI itself sought
clarification from the City of Manila and
immediately began complying with the
procedure for applying for a variance. The
MZBAA did subsequently recommend the
approval of the variance and the City Council
of Manila approved the same, ratifying the
licenses and permits already given to DMCI-
PDI. Such ratification was well within the right
of the City Council of Manila. The City
Council of Manila could have denied the
application had it seen any reason to do so.
Again, the ratification is a function of the City
Council of Manila, an exercise of its
discretion1 and well within the authority
granted it by law and the City's own
Ordinance No. 8119.
The main purpose of zoning is the protection
of public safety, health, convenience, and
welfare. There is no indication that the Torre
de Manila project brings any harm, danger, or
hazard to the people in the surrounding areas
except that the building allegedly poses an
unsightly view on the taking of photos or the
visual appreciation of the Rizal Monument by
locals and tourists. In fact, the Court must
take the approval of the MZBAA, and its
subsequent ratification by the City Council of
Manila, as the duly authorized exercise of
discretion by the city officials. Great care
must be taken that the Court does not unduly
tread upon the local government's
performance of its duties. It is not for this
Court to dictate upon the other branches bf
the government how their discretion must be
exercised so long as these branches do not
commit grave abuse of discretion amounting
to lack or excess of jurisdiction.
Likewise, any violation of Ordinance No. 8119
must be determined in the proper case and
before the proper forum. It is not within the
power of this Court in this case to make such
determination. Without such determination,
this Court cannot simply declare that the City
of Manila had failed to consider its duties
under Ordinance No. 8119 when it issued the
permits in DMCI-PDI's favor without making a
finding of fact how the City of Manila failed "to
consider" its duties with respect to areas
outside the boundaries of the Rizal Park. In
the first place, this Court has no jurisdiction to
make findings of fact in an original action like
this before this Court. Moreover the City of
Manila could not legally apply standards to
sites outside the area covered by the
ordinance that prescribed the standards. With
this, I taken in light of the lack of finding that
there was grave abuse of discretion I on the
part of the City of Manila, there is no basis to
issue the writ of mandamus against the City
of Manila.
During the Oral Arguments, it was
established that the granting of a variance
neither uncommon nor irregular. On the
contrary, current practice has made granting
of a variance the rule rather than the
exception:
JUSTICE CARPIO: Let's go to Ordinance
8119. For residential condominium that stand
alone, in other words not part of a commercial
complex or an industrial complex ...
ATTY. FLAMINIANO: Yes, Your Honor.
JUSTICE CARPIO: The [Floor Area Ratio
(FAR)] is uniform for the entire City of Manila,
the FAR 4, correct? ATTY. FLAMINIANO: I
believe so, Your Honor, it's FAR 4.
JUSTICE CARPIO: So it's FAR 4 for all
residential condominium complex or industrial
projects.
ATTY. FLAMINIANO: There might be, the
FAR might be different when it comes to
condominiums in commercial areas, Your
Honor.
JUSTICE CARPIO: Yes, I'm talking of stand-
alone ...
ATTY. FLAMINIANO: Yes, Your Honor.
JUITICE CARPIO: ... residential
condominiums...
ATTY. FLAMINIANO: Uniform at FAR 4, Your
Honor.
JUSTICE CARPIO: And the percentage of
land occupancy is always 60 percent.
ATTY. FLAMINIANO: 60 percent correct,
Your Honor.
JUSTICE CARPIO: Okay ... how many
square meters is this Torre de Manila?
xxx
ATTY. FLAMINIANO: The land area, Your
Honor, it's almost 5,000 ... 5,556.
JUSTICE CARPIO: So, it's almost half a
hectare.
ATTY. FLAMINIANO: Yes, Your Honor.
JUSTICE CARPIO: And at FAR 4, it can only
build up to 18 storeys, I mean at FAR 4, is
that correct?
ATTY. FLAMINIANO: If the 60 percent of the
lot...
JUSTICE CARPIO: Yes, but that is a rule.
ATTY. FLAMINIANO: That is a rule, that's the
rule, Your Honor.
JUSTICE CARPIO: 60 percent of...
ATTY. FLAMINIANO: Of the land area.
JUSTICE CARPIO: ... buildable, the rest not
buildable.
ATTY. FLAMINIANO: Yes, Your Honor.
JUSTICE CARPIO: Okay, so if you look
around here in the City of Manila anywhere
you go, you look at stand alone residential
condominium buildings...
ATTY. FLAMINIANO: There's a lot of them,
Your Honor.
JUSTICE CARPIO: It's always not FAR 4, it's
more than FAR 4.
ATTY. FLAMINIANO: Yes, Your Honor.
JUSTICE CARPIO: And the buildable area is
to the edge of the property ...it's not 60
percent, correct?
ATTY. FLAMINIANO: Yes, Your Honor.
JUSTICE CARPIO: So, if you look at all the
... residential buildings in the last ten
years, they [have] all variances. They did
not follow the original FAR 4 or the 60
percent (of land occupancy). Every
residential building that stand alone was a
variance. ATTY. FLAMINIANO: That's
correct, Your Honor.
JUSTICE CARPIO: So the rule really in the
City of Manila is variance, and the
exception which is never followed is FAR
4.
ATTY. FLAMINIANO: FAR 4, it appears to
be that way, Your Honor.
xxxx
JUSTICE CARPIO: Every developer will
have to get a variance because it doesn't
make sense to follow FAR 4 because the
land is so expensive and if you can build
only two storeys on a 1,000-square meter
lot, you will surely lose money, correct?
ATTY. FLAMINIANO: Exactly, Your
Honor. 75 (Emphasis supplied)
This, the MZBAA's grant of the variance
cannot be used as a basis to grant the
mandamus petition absent any clear
finding that said act amo'1nted to "grave
abuse of discretion, manifest injustice, or
palpable excess of authority."
The KOR is Estopped from Questioning
the
Torre de Manila Construction.
The KOR is now estopped from questioning
the construction of the Torre de Manila
project. The KOR itself came up with the idea
to build a structure right behind the Rizal
Monument that would dwarf the Rizal
Monument.
In the mid-1950s, the Jose Rizal National
Centennial Commission (JRNCC) l
formulated a plan to build an Educational
Center within the Rizal Park. In July 1955, the
KOR proposed the inclusion of a national
theater on the site of the Educational Center.
The JRNCC adopted the proposal. The
following[ year, a law - Republic Act No.
142776 - authorized the establishment of the
Jose Rizal National Cultural Shrine consisting
of a national theater, a national museum, and
a national library on a single site. 77
To be built on the open space right behind
the 12.7 meter high Rizal Monument were:
the KOR's proposed nationaltheater, standing
29.25 meters high and 286 meters in distance
from the Rizal Monument; the nationallibrary,
standing 25 .6 meters high and 180 meters in
distance from the Rizal ;Monument, with its
rear along San Luis Street (now T.M. Kalaw
Street); and facing it, the nationalmuseum, at
19.5 meters high and 190 meters in I distance
from the Rizal Monument, with its back along
P. Burgos Street. 78
However, several sectors voiced their
objections to the construction for various
reasons. Among them, the need to preserve
the open space of the park, the high cost of
construction, the desecration of the park's
hallowed grounds, and the fact that the
proposed cultural center including the
129.25 meter high national theater
proposed by the KOR would dwarf the
12.7 meter high Rizal Monument. 79 The
JRNCC revised the plan and only the
National Library - which still stands today -
was built. 80
According to the NHCP, the KOR even
proposed to build a Rizal Center on the park
as recently as 2013.81 The proposal was
disapproved by the NHCR and the
Department of Tourism.
Surely, as noble as the KOR's intentions
were, its proposed center would have
dwarfed the Rizal Monument with its size and
proximity.
In contrast, the Torre de Manila is located
well outside the Rizal Park, and to the rear of
the Rizal Monument - approximately 870
meters from the Rizal Monument and 3 0
meters from the edge of Rizal Park. 82
It is a basic principle that "one who seeks
equity and justice must come to court with
clean hands. "83 In Jenosa v. Delariarte, 84 the
Court reiterated ,that he who seeks equity
must do equity, and he who comes into equity
must come with clean hands. This "signifies
that a litigant may be denied relief by a court
of equity on the ground that his conduct has
been inequitable, unfair and dishonest, or
fraudulent, or deceitful as to the controversy
in issue. " 85 Thus, the KOR, having earlier
proposed a national theater a mere
286meters in distance from the back of the
Rizal Monument that would have dwarfed the
Rizal Monument, comes to this I Court with
unclean hands. It is now precluded from
"seeking any equitable refuge" 86 from the
Court. The KOR's petition should be
dismissed on this ground alone.
Torre de Manila is Not a Nuisance Per Se.
In its petition, the KOR claims that the Torre
de Manila is a nuisance perse that deserves
to be summarily abated even without judicial
proceedings. 87 However, during the Oral
Arguments, counsel for the KOR argued that
the KOR now believes that the Torre de
Manila is a nuisance per accidens and not a
nuisance perse. 88
Article 694 of the Civil Code defines
a nuisance as any act, omission,
establishment, business, condition of
property, or anything else which: (1) injures or
endangers the health or safety of others; (2)
annoys or offends the senses; (3) shocks,
defies or disregards decency or morality; (4)
obstructs or interferes with the free passage
of any public highway or street, or any body
of water; or (5) hinders or impairs the use of
property.
Thy Court recognizes two kinds of nuisances.
The first, nuisance perse, is on "recognized
as a nuisance under any and all
circumstances, because it constitutes a direct
menace to public health or safety, and, for
that reason, may be abated summarily under
the undefined law of necessity." 89 The
second, nuisance peraccidens, is that which
"depends upon certain conditions and
circumstances, and its existence being a
question of fact, it cannot be abated without
due hearing thereon in a tribunal authorized
to decide whether such a thing in law
constitutes a nuisance. "90
It can easily be gleaned that the Torre de
Manila is not a nuisance per se. The Torre de
Manila project cannot be considered as a
"direct menace to I public health or safety."
Not only is a condominium project
commonplace in the City of Manila, DMCI-
PDI has, according to the proper government
agencies, complied with health and safety
standards set by law. DMCI-PDI has been
granted the following permits and clearances
prior to starting the project: (1) Height
Clearance Permit from the Civil Aviation
Authority of the Philippines;91 (2)
Development Permit from the HLURB;92 (3)
Zoning Certification from the HLURB;93 (4)
Certificate of Environmental Compliance
Commitment from the Environment
Management Bureau of the Department of
Environment and Natural Resources;94 (5)
Barangay Clearance95 (6) Zoning Permit;96 (7)
Building Permit;97 (8) and Electrical and
Mechanical Permit.98
Later, DMCI-PDI also obtained the right to
build under a variance recommended by the
MZBAA and granted by the City Council of
Manila. Thus, there can be no doubt that the
Torre de Manila project is not a
nuisance perse.
On the other hand, the KOR now claims that
the Torre de Manila is a
nuisance peraccidens.
By definition, a nuisance peraccidens is
determined based on its surrounding
conditions and circumstances. These
conditions and circumstances must be well
established, not merely alleged. The Court
cannot simply accept these conditions and
circumstances as established facts as the
KOR would have us do in this case. 99 The
KOR itself concedes that the question of
whether the Torre de Manila is a
nuisance peraccidens is a question of fact. 100
The authority to decide when a nuisance
exists is an authority to find facts, to estimate
their force, and to apply rules of law to the
case thus made. 101 1lhis Court is no such
authority. It is not a trier of facts. It cannot
simply take the allegations in the petition and
accept these as facts, more so in this case
where these allegations are contested by the
respondents.
The task to receive and evaluate evidence is
lodged with the trial courts. The question,
then, of whether the Torre de Manila project
is a nuisance peraccidens must be settled
after due proceedings brought before the
proper Regional Trial Court. The KOR cannot
circumvent the process in the guise be
protecting national culture and heritage.
The TRO must be lifted.
Injunctive reliefs are meant to preserve
substantive rights and prevent further
injury102 until final adjudication on the merits
of the case. In the present case, since the
legal rights of the KOR are not well-defined,
clear, and certain, the petition for mandamus
must be dismissed and the TRO lifted.
The general rule is that courts will not disturb
the findings of I administrative agencies when
they are supported by substantial evidence.
In this case, DMCI-PDI already acquired
vested rights in the various permits, licenses,
or even variances it had applied for in order
to build a 49-storey building which is, and had
been, allowed by the City of Manila's zoning
ordinance.
As we have time and again held, courts
generally hesitate to review discretionary
decisions or actions of administrative
agencies in the absence of proof that such
decisions or actions were arrived at with
grave abuse of discretion amounting to lack
or excess of jurisdiction.
In JRS Business Corp. v. Montesa, 103 we
held that mandamus is the proper remedy if it
could be shown that there was neglect on the
part of a tribunal in the performance of an act
which the law specifically enjoins as a duty,
or there was an unlawful exclusion of a party
from the use and enjoyment be a right to
which he is clearly entitled. Only specific legal
rights may be enforced by mandamus if they
are clear and certain. If the legal rights of th6
petitioner are not well-defined, definite, clear,
and certain, 104 the petition must be
dismissed. Stated otherwise, the writ never
issues in doubtful cases. It neither confers
powers nor imposes duties. It is simply a
command to exercise a power already
possessed and to perform a duty already
imposed. 105
In sum, bearing in mind the Court does not
intervene in discretionary acts of the
executive department in the absence of grave
abuse of discretion, 106 and considering that
mandamus may only be issued to enforce a
clear and certain legal right, 107 the present
special civil action for mandamus must be
dismissed and the TRO issued earlier must
be lifted.
A FINAL WORD
It had been Rizal’s wish to die facing the
rising sun. In his Mi Ultimo Adios, the poem
he left for his family the night before he was
executed, Rizal wrote:
Yo muero cuando veo que el cielo se colora
Y al fin anuncia el dia tras lobrego capuz 108
[Ako’y mamamatay, ngayong namamalas
na sa Silanganan ay namamanaag
yaong maligayang araw na sisikat
sa likod ng luksang nagtabing na ulap.] 109
[I die just when I see the dawn break,
Through the gloom of night, to herald the
day] 110
Yet at the point of his execution, he was WHEREFORE, the petition for mandamus
made to stand facing West towards Manila is DISMISSED for lack of merit. The
Bay, with his back to the firing squad, like the Temporary Restraining Order issued by the
traitor the colonial government wished to Court on 16 June 2015 is LIFTED effective
portray him. He asked to face his immediately.
executioners, facing the East where the sun
would be rising since it was early morning, SO ORDERED.
but the Spanish captain did not allow it. As he
was shot and a single bullet struck his frail ANTONIO T. CARPIO
body, Rizal forced himself, with his last Associate Justice
remaining strength, to turn around to face the
East and thus he fell on his back with] his WE CONCUR:
face to the sky and the rising sun. Then, the
Spanish captain approached Rizal and MARIA LOURDES P. A. SERENO
finished him off with one pistol shot to his Chief Justice
head.

Before his death, Rizal wrote a letter to his (please see I join the dissent
family. He asked for a simple tomb, marked concurring of Justice
with a cross and a stone with only his name opinion) Jardeleza
and the date of his birth and death; no PRESBITERO TERESITA J.
anniversary celebrations; and interment J. VELASCO, LEONARDO-DE
at Paang Bundok (now, the Manila North JR. CASTRO
Cemetery). Rizal never wanted his grave to Associate Associate
be a burden to future generations. Justice Justice

The letter never made it to his family and his I join the dissent
wishes were not carried out. The letter was of Justice
discovered many years later, in 1953. By LUCAS P.
Jardeleza
then, his remains had been entombed at the BERSAMIN
DIOSDADO M.
Rizal Monument, countless anniversaries had Associate
PERALTA
been . celebrated, with memorials and Justice
Associate
monuments built throughout the world. Justice

Rizal's wish was unmistakable: to be buried

without pomp or pageantry; to the point of I join separate of
reaching oblivion or obscurity in the Justice
MARIANO C.
future. 111 For Rizal's life was never about Jardeleza
DEL CASTILLO
fame or vainglory, but for the country he JOSE CATRAL
Associate
loved dearly and for which he gave up his life. MENDOZA
Justice
Associate
The Rizal Monument is expressly against Justice
Rizal' s own wishes. That Rizal's statue now
stands facing West towards Manila Bay, with Please see
Rizal's back to the East, adds salt to the separate
wound. If we continue the present orientation concurring
of Rizal's statue, with Rizal facing West, we BIENVENIDO L.
opinion
would be like the Spanish captain who REYES
ESTELA M.
refused Rizal's request to die facing the rising Associate
PERLAS-
sun in the East. On the other hand, if Rizal' s Justice
BERNABE
statue is made to face East, as Rizal had Associate
desired when he was about to be shot, the Justice
background - the blue sky above Manila Bay -
would forever be clear of obstruction, and we
I concur, see Please see
would be faithful to Rizal's dying wish.
 8
Id. at 1374.
dissenting
separate opinion
opinion 9
Id. at 1375-1376.
MARVIC M.V.F.
FRANCIS H.
LEONEN
JARDELEZA 10
Rollo, Vol. I, pp. 404-405.
Associate
Associate
Justice
Justice 11
Rollo, Vol. III, p. 1377.
12
I join the dissent Id. at 1381-1383.
I join the dissent
of J. Jardeleza
of J. Jardeleza 13
Id. at 1384-1385.
ALFREDO
SAMUEL R.
BENJAMIN S.
MARTIRES 14
Id. at 1386-1387.
CAGUIOA
Associate
Associate
Justice 15
Id. at 1388-1389.
Justice
16
Condition (c) in the 23 December
Please see separate concurring opinion 2013 resolution reads:
NOEL G. TIJAM
Associate Justice (c) The Project shall
continuously be socially
CERTIFICATION acceptable to the Barangay
Council and nearby residents by
Pursuant to Section 13, Article VIII of the assuring that its operations shall
Constitution, I certify that the conclusions in not adversely affect the
the above Decision had been reached in community heritage, traffic
consultation before the case was assigned to condition, public health, safety
the writer of the opinion of the Court. and welfare x x x. Id. at 1387.

MARIA LOURDES P. A. SERENO It was amended in the 8

Chief Justice January 2014 resolution to
read:
1
1Rollo, Vol. I, pp. 3-28.
(c) The proponent shall ensure
2
Id. at 418-C-418-D. that its operations shall not
adversely affect community
3
In a Manifestation dated 14 October heritage, traffic condition, public
2014, DMCI-PDI informed the Court health, safety and welfare x x
that it is the owner and developer of x. Id. at 1389.
the Torre de Manila project and
requested to substitute for DMCI 17
Rollo, Vol. III, pp. 1390-1392.
Homes, Inc. as respondent in this
case. Id. at 240-242. The Court, in its 18
Rollo, Vol. I, p. 5.
11 November 2014 Resolution,
resolved to implead DMCI-PDI as 19
Id. at 4.
respondent in this case. Id. at 281-282.
20
Id. at 13.
4
Id. at 300.
21
Id. at 16.
5
Id. at 301.
22
Id. at 17.
6
Id. at 376.
23
During the Oral Arguments on 21
7
Rollo, Vol. III, pp. 1371-1373. July 2015, the counsel for the KOR
asserted that the KOR has changed its
 49
position on the matter and now Id. at 436.
considers the Torre de Manila project
50
a nuisance peraccidens. TSN, Rollo. Vol. III, p. 1363.
21July2015, p. 106.
51
Id.
24
Rollo, Vol. I, p. 18.
52
Id. at 1365.
25
Id.at19.
53
Phil. 658, 661 (1934).
26
Id. at 20.
54
See in the Matter of the Adoption of
27
Id. at 21. Stephanie Nathy Astroga Garcia, 494
Phil. 515 (2005); Summerville General
28
Id. at 307. Merchandising Co. v. Court of
Appeals, 552 Phil. 668 (2007).
29
Id. at 308.
55
Art 306. The contracting parties may
30
Id. at 311-312. establish such stipulations, clauses,
terms and conditions as they may
31
Id. at 314. deem convenient, provided they are
not contrary to law, morals, good
32
Id. at 315. customs, public order, or public policy.
56
33
Id.at317. Art. 409. The following contracts are
inexistent and void from the beginning:
34
Id. at 318.
(1) Those whose cause, object
35
Id. at 320. or purpose is contrary to law,
morals, good customs, public
36
Id. at 321. order or public policy;
57
37
Id. at 329. Rollo, Vol. III, p. 1377.
58
38
Id. Id. at 1376.
59
39
Id. at 338. An Act Providing for the Protection
and Conservation of the National
40
Id. at 336 Cultural Heritage, Strengthening the
National Commission for Culture and
41
Id. at 337. the Arts (NCCA) and its Affiliated
Cultural Agencies, and for Other
42
Id. at 339. Purposes. Approved on 26 March
2010.
43
Id. at 346.
60
Section 25, Republic Act No. 10066.
44
Id. at 346-347.
61
Section 1, Article III, Constitution.
45
Id. at 434.
62
TSN1September 2015, p. 34.
46
Id.
63
Rollo, Vol. III, p. 1376.
47
Id. at 433.
64
120 Phil. 321, 337 (1964).
48
Id. at 434.
65
Section 1. The judicial power shall
be vested in one Supreme Court and
in such lower courts as may be
established by law.
Judicial power includes the duty
of the courts of justice to settle
actual controversies involving
rights which are legally
demandable and enforceable,
and to determine whether or not
there has been a grave abuse
of discretion amounting to lack
or excess of jurisdiction on the
part of any branch or
instrumentality of the
Government.
66
G.R .. No. 207132, 6 December
2016.
67
Rollo, Vol. III, pp. 1386-1389.
Zoning Board Resolution No.
06, Series of 2013, 23
December 2013.
WHEREAS, Section 78 of the
Ordinance No. 8119, otherwise
known as the Manila
Comprehensive Land Use Plan
and Zoning Ordinance of 2006,
mandates the Manila Zoning
Board of Adjustments and
Appeals (MZBAA) to act on the
applications for zoning appeals
on the following nature:
variances, exceptions, non-
conforming uses, complaints
and oppositions;
WHEREAS, the City Planning
and Development Office
(CPDO) elevated the
application for Zoning Appeal
regarding the Special Use
Permit of the above-captioned
Project to the MZBAA in its
Fourth Meeting held on
December 23, 2013;
WHEREAS, the CPDO
Evaluation Worksheet for
Zoning Permit Processing
reveals that the Project exceeds
the prescribed maximum
Percentage of Land Occupancy
(PLO) and exceeds the
prescribed Floor Area Ratio
(FAR) as stipulated in Article V,
Section 17 of City 1 ordinance
No. 8119;
WHEREAS, the Owner
requested for favorable
endorsement to the City
Council; x x x
xxx
WHEREAS, through Barangay
Resolutions and an Affidavit,
the Barangay Council together
with the owners and residents
of the adjacent surrounding
properties interpose no
objection; x x x
WHEREAS, through
Certifications from respective
utility companies, the supplies
of water, power and
communications are assured to
be continuous and sufficient to
the community vis-a-vis
supplying the utility demands of
the proposed Project; x x x
NOW, THEREFORE, the
MZBAA, by virtue of the powers
vested in us by law hereby
RECOMMENDSAPPROVALFO
RVARIANCE to the City Council
of Manila, the herein Proposed
Project, TORRE DE MANILA:
49-Storey High-Rise Residential
Condominium located at TAFT
AVENUE, ERMITA x x x.
xxxx
68
lianga Bay Logging Co., Inc. v.
Enage, 236 Phil. 84, 95 (1987).
69
Board of Medical Education v.
Alfonso, 257 Phil. 311, 321 (1989).
Citations omitted.
70
Angchangco, Jr. v.
Ombudsman, 335 Phil. 766, 771-772
(1997). Emphasis supplied.
71
34 Phil. 818, 823 (1916).
72
M.A. Jimenez Enterprises, Inc. v.
Ombudsman, 665 Phil. 523, 540-541
(2011), citing Albay Accredited
Constructors Association, Inc. v.
Desierto, 516 Phil. 308, 326 (2006).
73
See angchangco, Jr. v.
Ombudsman, supra note 70; Kant
Kwong v. PCGG, 240 Phil. 219, 230
(1987).
74
The preamble of the International
Charter for the Conservation and
Restoration of Monuments and
sites (1964), otherwise known as the
Venice Charter, reads:
Imbued with a message from
the past, the historic
monuments of generations of
people remain to the present
day as living witnesses of their
age-old traditions. People are
becoming more and more
conscious of the unity of human
values and regard ancient
monuments as a common
heritage. The common
responsibility to safeguard them
for future generations is
recognized. It is our duty to
hand them on in the full
richness of their authenticity.
It is essential that the principles
guiding the preservation and
restoration of ancient buildings
should be agreed and be laid
down on an international basis,
with each country being
responsible for applying the
plan within the framework of its
own culture and traditions.
By defining these basic
principles for the first time, the
Athens Charter of 1931
contributed towards the
development of an extensive
international movement which
has assumed concrete form in
national documents, in the work
of ICOM and UNESCO and in
the establishment by the latter
of the International Centre for
the Study of the Preservation
and the Restoration of Cultural
Property. Increasing awareness
and critical study have been
brought to bear on problems
which have continually become
more complex and varied; now
the time has come to examine
the Charter afresh in order to
make a thorough study of the
principles involved and to
enlarge its score in a new
document.
xxxx
75
TSN, 25 August 2015, pp. 18-22, 24.
76
An Act Appropriating Funds to Carry
Out the Purposes of Jose Rizal
National Centennial Commission
Created by Executive Order No. Fifty-
two, dated August Ten, Nineteen
Hundred and Fifty four, Approved on
14 June 1956.
77
Rollo, Vol. V, p. 2497.
78
Id. at 2500.
79
Id. at 2493.
80
Id. at 2500.
81
Id. at 2502.
82
Rollo, Vol. III, p. 1283.
83
Bank of the Philippine Islands v.
Fernandez, G.R. No. 173134, 2
September 2015, 768 SCRA 563, 582,
:citing Roque v. Lapuz, 185 Phil. 525
(1980).
84
644 Phil. 565 (2010).
85
Id. at 573, citing University of the
Philippines v. Hon. Catungal, Jr., 338
Phil. 728, 744 (1997); In re: Petition for
 106
Separation of Property Elena Case v. Board of Health, 24 Phil.
Buenaventura Muller v. Helmut 250, 277 (1913).
Muller, 531 Phil. 460, 468 (2006).
107
Pascua v. Tuason, 108 Phil. 69, 73
86
Beumer v. Amores, 700 Phil. 90, 98 (1960), citing Zamora v. Wright, supra
(2012). note 104; Sanson v. Barrios, supra
note 105; Pabico v. Jaranilla, 60 Phil.
87
Rollo Vol. I, p. 18. 247 (1934).
88 108
TSN 21 July 2015, p. 105. From the untitled poem written by
Jose Rizal given to his family the night
89
Aquino v. Municipality of Malay, before his execution in 1896
Aklan, G.R. No. 211356, 29 <http://en.wikipedia.org/org/wiki/mi_
September 2014, 737 SCRA 145, %C3%BAltimo_adi%C3%B3s >
163;Salao v. Santos, 67 Phil. 547, 550 (accessed on 16 February 2017).
(1939). Citations omitted.
The poem was later given the
90
Id. title Mi Ultimo Adios by Mariano
Ponce. http://www.joserizal.ph/p
91
Rollo; Vol. I, p. 371. m03.html (accessed on 16
February 2017).
92
Id. at 1382.
109
From Pahimakas ni Dr. Jose
93
Id. at 1372. Rizal, Tagalog translation of Rizal's Mi
Ultimo Adios by Andres Bonifacio
94
Id. at 1385-392. <http://en.wikipedia.org/org/wiki/mi_
%C3%BAltimo_adi%C3%B3s >
95
Id. at 373. (accessed on 16 Febr4ary 2017).
110
96
Rollo Vol. III, p. 1369. English translation by Charles
Derbyshire
97
Id. at 1 1370. <http://en.wikipilipinas.org/index.php/M
i_UltiMo_Adios > (accessed on 24
98
Id. at 1366. April 2017).
111
99
TSN, 21 July2015, p. 107. Were: Rizal's Burial Wishes
Honored?, Dr. Pablo S. Trillana,
100
Id. at 106. <http://newsinfo.inquirer.net/554367/w
ere-rizals-burial-wishes-honored >(acc
101
Iloilo Ice and Cold Storage Co. v. essed on 16 February 2017).
Municipal Council of iloilo, 24 Phil.
471, 475 (1913). Citations omitted.
102
See Garcia, Jr. v. Court of Appeals,
604 Phil. 677 (2009).
103
131 Phil. 719, 725 (1968).
104
Zamora, v. Wright, 53 Phil. 613, 629
(1929).
105
Sanson v. Barrios, 63 Phil. 198, 201 FIRST DIVISION
(1936).
G.R. No. 223862, July 10, 2017
 HON. MYLYN P. CAYABYAB, IN HER
CAPACITY AS THE MUNICIPAL MAYOR
OF LUBAO, PAMPANGA, AND ANGELITO
L. DAVID, IN HIS CAPACITY AS THE
BARANGAY CHAIRMAN OF PRADO
SIONGCO, LUBAO, PAMPANGA,
REPRESENTED BY THEIR ATTORNEY-IN-
FACT, EMMANUEL
SANTOS, Petitioners, v. JAIME C. DIMSON,
REPRESENTED BY HIS ATTORNEYS-IN-
FACT, CARMELA R. DIMSON AND IRENE
R. DIMSON, Respondent.
DECISION
PERLAS-BERNABE, J.:
Before the Court is a petition for review
on certiorari1 assailing the Decision2 dated
December 18, 2015 and the
Resolution3 dated March 21, 2016 of the
Court of Appeals (CA) in CA-G.R. SP No.
138699, which directed the Regional Trial
Court (RTC) of Guagua, Pampanga, Branch
51 to issue a temporary restraining order
(TRO) against the Cease and Desist
Order4 (CDO) and the Closure Order5 of
petitioner Mayor Mylyn P. Cayabyab (Mayor
Cayabyab) upon posting of a bond to be
determined by the RTC.
The Facts
Respondent Jaime C. Dimson (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 Angelita 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 of Lubao,
Pampanga, Mayor Cayabyab. However,
despite the conduct of an ocular inspection,
Chairman David refused to issue the
clearance; hence, no business permit was
issued in favor of Dimson.6
On April 29, 2014, Dimson received7 a
CDO8 dated April 28, 2014 from the Office of
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 (Sanitation
Code).9
In his motion for reconsideration,10 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 officer.11 Said motion was
denied by Lubao Acting Mayor Robertito V.
Diaz in a letter12 dated May 20, 2014.
Dissatisfied, Dimson filed another motion for
reconsideration,13 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.14 The motion
was denied by Mayor Cayabyab in a
letter15 dated June 13, 2014, which clarified
that the CDO was primarily issued on the lack
of the requisite Barangay Business Permit
and Mayor's Permit. Thereafter, a Closure
Order16 dated June 20, 2014 was issued by
Mayor Cayabyab effectively shutting down
the subject poultry farm.17
The RTC Proceedings
Aggrieved, 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, docketed as Sp. Civil
Case No. G-14-685, which was raffled to
Branch 52. He maintained that his poultry
farm is not a nuisance per se that can be
summarily abated; hence, respondents
grossly abused their discretion when they
withheld his permits, and issued the CDO and
Closure Order.19
In their defense,20 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.21
In an Order22 dated October 2, 2014, the 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. It likewise ruled that the TRO can
no longer serve its purpose as the act sought
to be restrained was already fait accompli,
since a notice of closure was already posted
on the concrete wall of the subject poultry
farm effective September 29, 2014.23
Due to the Presiding Judge's voluntary
inhibition in the case, the same was re-raffied
to Branch 51 of the same RTC.24
Dimson filed a motion for reconsideration
which was, however, denied in an
Order25 dated December 22, 2014.
Unperturbed, Dimson filed a petition
for certiorari26 before the CA, seeking to set
aside the Orders dated October 2, 2014 and
December 22, 2014, docketed as CA-G.R.
SP No. 138699.27
The CA Ruling
In a Decision28 dated December 18, 2015, the
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.29
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. Considering that poultry farming is
a legitimate business, by its nature alone, the
same can only be a nuisance per accidens if
in the course of its operations, it should
become objectionable to such extent that it
offends some laws, public policy, or should
become a danger to public health and
welfare. It may only be abated on the strength
of judicial fiat.30
Consequently, the CA held that Dimson was
able to establish the concurrence of the
requisites for the issuance of injunctive relief,
to wit: (a) he has the right to engage in
poultry farming; (b) the issuance of the CDO
and the closure order would work injustice to
him; and (c) the issuance of the said orders
which amounted to an abatement of his
poultry enterprise without the required judicial
intervention violates his rights, which cannot
be justified under the general welfare
clause.31
The CA likewise held that the issuance of a
TRO cannot be denied on the ground of fait
accompli since the acts complained of is a
continuing prohibition on an otherwise
legitimate business. Hence, Dimson could still
resume his operations in the meantime, or
until a final decision on the merits of the main
case is rendered by the RTC, and the
status quo ante may still be attained, and,
thereafter, preserved.32
Dissatisfied, petitioners filed a motion for
reconsideration,33 which was, however,
denied in a Resolution34 dated March 21,
2016; hence, the instant petition.
The Issue Before the Court
The essential issue for the Court's resolution
is 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.
The Court's Ruling
The Court grants the petition.
"A writ of preliminary injunction and a TRO
are injunctive reliefs and preservative
remedies for the protection of substantive
rights and interests."35 To be entitled to the
injunctive writ, the applicant must show that:
(a) there exists a clear and unmistakable right
to be protected; (b) this right is directly
threatened by an act sought to be enjoined;
(c) the invasion of the right is material and
substantial; and (d) there is an urgent and
paramount necessity for the writ to prevent
serious and irreparable damage. The grant or
denial of an injunctive relief in a pending case
rests on the sound discretion of the court
since the assessment and evaluation of
evidence towards that end involve findings of
fact left for the conclusive determination of
the said court.36 "Hence, the exercise of
judicial discretion by a court in injunctive
matters must not be interfered with, except
when there is grave abuse of
discretion."37 The burden is, thus, on the
applicant to show that there is meritorious
ground for the issuance of a TRO in his
favor,38 since an application for injunctive
relief is construed strictly against him.39 Here,
Dimson failed to sufficiently show the
presence of the requisites to warrant the
issuance of a TRO against the CDO and the
Closure Order of Mayor Cayabyab.
Preliminarily, it must be clarified that contrary
to the CA's ruling,40 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 bewailing the foul
odor coming from the said farm,42 which was
confirmed upon ocular inspection conducted
by the Health and Sanitation Office of the
Municipality of Lubao, Pampanga.43 Settled is
the rule that acts of public officers are
presumed to be regular and valid, unless
sufficiently shown to be otherwise.44 In this
case, Dimson was unable to refute the finding
that foul odor is being emitted by his farm,
having failed to present the inspection report
of the sanitary officer who purportedly did not
note any such foul smell in the fann.45 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.
Having failed to apply for and secure the
necessary business pennit to operate in 2014
on account of his inability to obtain the
required barangay clearance due to non-
compliance with a requirement
standard,46 Dimson may not legally operate in
the Municipality of Lubao, Pampanga,
thereby, warranting the issuance by Mayor
Cayabyab of the CDO and the Closure Order.
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.47
In fine, it was grave error for the CA to order
the issuance of a TRO against the
implementation of the CDO and the Closure
Order of Mayor Cayabyab. A court may issue
injunctive relief against acts of public officers
14
only when the applicant has made out a case See id. at 55. See also rollo, p. 27.
of invalidity or irregularity strong enough to
15
overcome the presumption of validity or Records, Vol. I, p. 59.
regularity, and has established a clear legal
right to the remedy sought,48 which was not 16
Id. at 60.
shown here.
17
See rollo, p. 27.
WHEREFORE, the petltlon is GRANTED.
18
The Decision dated December 18, 2015 and Dated June 27, 2014. Records, Vol. I, pp.
the Resolution dated March 21, 2016 of the 16-39.
Court of Appeals in CA-G.R. SP No. 138699
19
are hereby SET ASIDE. See id. at 35-36.
20
SO ORDERED. See Answer with Special Affirmative
Defense and Counterclaim with Opposition to
Sereno, C.J., (Chairperson), Leonardo-De Issuance of Provisional Remedies dated
Castro, and Caguioa, JJ., concur. September 11, 2014; records, Vol. II, pp. 358-
Del Castillo, J., on official leave. 365.
21
Endnotes: See id. at 362.
22
Rollo, pp. 17-21. Issued by Judge Jonel S.
1
Rollo, pp. 3-14. Mercado.
23
2
Id. at 25-36. Penned by Associate Justice See id. at 20-21.
Ricardo R. Rosario with Associate Justices
24
Edwin D. Sorongon and Henri Jean Paul B. Id. at 28. See also Order dated October 7,
Inting concurring. 2014; records, Vol. II, pp. 620-625.
25
3
Id. at 43. Rollo, pp. 22-23. Penned by Presiding
Judge Merideth D. Delos Santos-Mailig.
4
Records, Vol. I, p. 42.
26
Not attached to the rollo.
5
Id. at 60.
27
See rollo, p. 25.
6
Rollo, p. 26.
28
Id. at 25-36.
7
Id. at 27.
29
Id. at 35.
8
Records, Vol. I, p. 42.
30
See id. at 32-33.
9
Id.
31
Id. at 34.
10
See Motion for Reconsideration with Motion
32
to Lift Cease and Desist Order dated May 5, See id. at 34-35.
2014; id. at 43-48.
33
Dated January 5, 2016; id. at 37-40.
11
See id. at 44-46. See also rollo, p. 27.
34
Id. at 43.
12
Records, Vol. I, pp. 49-52.
35
Australian Professional Realty, Inc. v.
13
See Manifestation with Second Motion for Municipality of Padre Garcia, Batangas, 684
Reconsideration dated June 2, 2014; id. at Phil. 283, 291-292 (2012).
53-58.
36
Id. at 292-293. Alpuerto of the Naval Base Camillo Osias,
Port San Vicente, Sta. Ana,
37
Id. at 293. Cagayan, Petitioner,
vs.
38
Id. REV. CLAUDIO R. CORTEZ,
SR., Respondent.
39
See St. James College of Para�aque v.
Equitable PCI Bank, 641 Phil. 452, 471 DECISION
(2010).
DEL CASTILLO, J.:
40
See rollo, p. 32.
An inalienable public land cannot be
41
See Item 3.3 of Department of Interior and appropriated and thus may not be the proper
Local Government-Department of Trade and object of possession. Hence, injunction
Industry (DILG-DTI) Joint Memorandum cannot be issued in order to protect ones
Circular No. 01, series of 2010, dated August alleged right of possession over the same.
6, 2010.
This Petition for Review on Certiorari1 assails
42
See records, Vol. II, pp. 384-387 and 390- the June 29, 2011 Decision2 of the Court of
411. Appeals (CA) in CA-GR. CV No. 89968,
which dismissed the appeal therewith and
43
See rollo, p. 9. affirmed the July 3, 2007 Decision3 of the
Regional Trial Court (RTC) of Aparri,
44
Secretary Boncodin v. National Power Corp. Cagayan, Branch 8 in Spl. Civil Action Case
Employees Consolidated Union (NECU), 534 No. II-2403.
Phil. 741, 759 (2006).
Factual Antecedents
45
See records, Volume I, p. 33.
Respondent Rev. Claudio R. Cortez, Sr.
46
Under Item 4.2.2 (l) of DILG-DTI Joint (Rev. Cortez), a missionary by vocation
Memorandum Circular No. 01, series of 2010, engaged in humanitarian and charitable
dated August 6, 2010, inspections to check activities, established an orphanage and
compliance with all the requirement school in Punta Verde, Palaui Island, San
standards, i.e., zoning and environment Vicente, Sta. Ana, Cagayan. He claimed that
ordinances, building and fire safety, health since 1962, he has been in peaceful
and sanitation regulations, will be undertaken possession of about 50 hectares of land
within the year after the issuance of the located in the western portion of Palaui Island
business permit. in Sitio Siwangag, Sta. Ana, Cagayan which
he, with the help of Aetas and other people
47
See Australian Professional Realty, Inc. v. under his care, cleared and developed for
Municipality of Padre Garcia, Batangas, agricultural purposes in order to support his
supra note 35, at 293. charitable, humanitarian and missionary
works.4
48
See Secretary Boncodin v. National Power
Corp. Employees Consolidated Union On May 22, 1967, President Ferdinand E.
(NECU), supra note 44, at 759-760. Marcos issued Proclamation No. 201
reserving for military purposes a parcel of the
public domain situated in Palaui Island.
Pursuant thereto, 2,000 hectares of the
September 7, 2015 southern half portion of the Palaui Island
were withdrawn from sale or settlement and
GR. No. 197472 reserved for the use of the Philippine Navy,
subject, however, to private rights if there be
REPUBLIC OF THE PHILIPPINES, any.
represented by Commander Raymond
More than two decades later or on August 16,
1994, President Fidel V. Ramos issued
Proclamation No. 447 declaring Palaui Island
and the surrounding waters situated in the
Municipality of Sta. Ana, Cagayan as marine
reserve. Again subject to any private rights,
the entire Palaui Island consisting of an
aggregate area of 7,415.48 hectares was
accordingly reserved as a marine protected
area.
On June 13, 2000, Rev. Cortez filed a
Petition for Injunction with Prayer for the
Issuance of a Writ of Preliminary Mandatory
Injunction5 against Rogelio C. Biñas (Biñas)
in his capacity as Commanding Officer of the
Philippine Naval Command in Port San
Vicente, Sta. Ana,
Cagayan.1âwphi1 According to him, some
members of the Philippine Navy, upon orders
of Biñas, disturbed his peaceful and lawful
possession of the said 50-hectare portion of
Palaui Island when on March 15, 2000, they
commanded him and his men, through the
use of force and intimidation, to vacate the
area. When he sought assistance from the
Office of the Philippine Naval Command, he
was met with sarcastic remarks and
threatened with drastic military action if they
do not vacate. Thus, Rev. Cortez and his
men were constrained to leave the area. In
view of these, Rev. Cortez filed the said
Petition with the RTC seeking preliminary
mandatory injunction ordering Biñas to
restore to him possession and to not disturb
the same, and further, for the said preliminary
writ, if issued, to be made permanent.
Proceedings before the Regional Trial
Court
After the conduct of hearing on the
application for preliminary mandatory
injunction6 and the parties’ submission of their
respective memoranda,7 the RTC issued an
Order8 dated February 21, 2002 granting the
application for a writ of preliminary mandatory
injunction. However, the same pertained to
five hectares (subject area) only, not to the
whole 50 hectares claimed to have been
occupied by Rev. Cortez, viz.:
It should be noted that the claim of [Rev.
Cortez] covers an area of 50 hectares more
or less located at the western portion of
Palaui Island which is within the Naval
reservation. [Rev. Cortez] presented what he
called as a survey map (Exh. "H") indicating
the location of the area claimed by the
Church of the Living God and/or Rev. Claudio
Cortez with an approximate area of 50
hectares identified as Exh. "H-4". However,
the Survey Map allegedly prepared by [a]
DENR personnel is only a sketch map[,] not a
survey map as claimed by [Rev. Cortez].
Likewise, the exact boundaries of the area
[are] not specifically indicated. The sketch
only shows some lines without indicating the
exact boundaries of the 50 hectares claimed
by [Rev. Cortez]. As such, the identification of
the area and its exact boundaries have not
been clearly defined and delineated in the
sketch map. Therefore, the area of 50
hectares that [Rev. Cortez] claimed to have
peacefully and lawfully possessed for the last
38 years cannot reasonably be determined or
accurately identified.
For this reason, there is merit to the
contention of [Biñas] that [Rev. Cortez]’ claim
to the 50 hectares of land identified as Exh.
["]H-4" is unclear and ambiguous. It is a
settled jurisprudence that mandatory
injunction is the strong arm of equity that
never ought to be extended unless to cases
of great injury, where courts of law cannot
afford an adequate and commensurate
remedy in damages. The right must be clear,
the injury impending or threatened, so as to
be averted only by the protecting preventive
process of injunction. The reason for this
doctrine is that before the issue of ownership
is determined in the light of the evidence
presented, justice and equity demand that the
[status quo be maintained] so that no
advantage may be given to one to the
prejudice of the other. And so it was ruled
that unless there is a clear pronouncement
regarding ownership and possession of the
land, or unless the land is covered by the
torrens title pointing to one of the parties as
the undisputed owner, a writ of preliminary
injunction should not issue to take the
property out of possession of one party to
place it in the hands of another x x x.
Admittedly, the documentary exhibits of [Rev.
Cortez] tended only to show that [he] has a
pending application of patent with the DENR.
Even so, [Rev. Cortez] failed to present in
evidence the application for patent allegedly
filed by [him] showing that he applied for
patent on the entire 50 hectares of land which
he possessed or occupied for a long period of
time. Under the circumstances, therefore, the
title of petitioner to the 50 hectares of land in
Palaui Island remains unclear and doubtful,
and [is] seriously disputed by the
government.
More significantly, at the time that Proc. No.
201 was issued on May 22, 1967, [Rev.
Cortez] has not perfected his right over the 50
hectares of land nor acquired any vested right
thereto considering that he only occupied the
land as alleged by him in 1962 or barely five
(5) years before the issuance of the
Presidential Proclamation. Proclamation No.
201 had the effect of removing Palaui Island
from the alienable or disposable portion of the
public domain and therefore the island, as of
the date of [the] issuance [of the
proclamation], has ceased to be disposable
public land.
However, the court is not unmindful that [Rev.
Cortez] has lawfully possessed and occupied
at least five (5) hectares of land situated at
the western portion of the Palaui Island
identified as Exh "H-4". During the hearing,
Cmdr.
Rogelio Biñas admitted that when he was
assigned as Commanding Officer in
December 1999, he went to Palaui Island and
[saw only] two (2) baluga families tilling the
land consisting of five (5) hectares.
Therefore, it cannot be seriously disputed that
[Rev. Cortez] and his baluga tribesmen
cleared five (5) hectares of land for planting
and cultivation since 1962 on the western
portion identified as Exhibit "H-4". The
Philippine Navy also admitted that they have
no objection to settlers of the land prior to the
Presidential Proclamation and [Rev. Cortez]
had been identified as one of the early
settlers of the area before the Presidential
Proclamation. The DENR also acknowledged
that [Rev. Cortez] has filed an application for
patent on the western area and that he must
be allowed to pursue his claim.
Although the court is not persuaded by the
argument of [Rev. Cortez] that he has already
acquired vested rights over the area claimed
by him, the court must recognize that [Rev.
Cortez] may have acquired some propriety
rights over the area considering the directive
of the DENR to allow [Rev. Cortez] to pursue
his application for patent. However, the court
wants to make clear that the application for
patent by [Rev. Cortez] should be limited to
an area not to exceed five (5) hectares
situated at the western portion of x x x Palaui
Island identified in the sketch map as Exh.
"H-4." This area appears to be the portion
where [Rev. Cortez] has clearly established
his right or title by reason of his long
possession and occupation of the land.9
In his Answer,10 Biñas countered that: (1)
Rev. Cortez has not proven that he has been
in exclusive, open, continuous and adverse
possession of the disputed land in the
concept of an owner; (2) Rev. Cortez has not
shown the exact boundaries and identification
of the entire lot claimed by him; (3) Rev.
Cortez has not substantiated his claim of
exemption from Proclamation No. 201; (4)
under Proclamation No. 447, the entire Palaui
Island, which includes the land allegedly
possessed and occupied by Rev. Cortez, was
reserved as a marine protected area; and, (4)
injunction is not a mode to wrest possession
of a property from one person by another.
Pre-trial and trial thereafter ensued.
On July 3, 2007, the RTC rendered its
Decision11 making the injunction final and
permanent. In so ruling, the said court made
reference to the Indigenous Peoples’ [Right]
Act (IPRA) as follows:
The Indigenous [Peoples’ Right] Act should
be given effect in this case. The affected
community belongs to the group of
indigenous people which are protected by the
State of their rights to continue in their
possession of the lands they have been tilling
since time immemorial. No subsequent
passage of law or presidential decrees can
alienate them from the land they are tilling.12
Ultimately, the RTC held, thus:
WHEREFORE, finding the petition to be
meritorious, the same is hereby GRANTED.
xxxx
SO DECIDED.13
Representing Biñas, the Office of the Solicitor
General (OSG) filed a Notice of
Appeal14 which was given due course by the
RTC in an Order15 dated August 6, 2007.
Ruling of the Court of Appeals
In its brief,16 the OSG pointed out that Rev.
Cortez admitted during trial that he filed the
Petition for injunction on behalf of the
indigenous cultural communities in Palaui
Island and not in his capacity as pastor or
missionary of the Church of the Living God.
He also claimed that he has no interest over
the land. Based on these admissions, the
OSG argued that the Petition should have
been dismissed outright on the grounds that it
did not include the name of the indigenous
cultural communities that Rev. Cortez is
supposedly representing and that the latter is
not the real party-in-interest. In any case, the
OSG averred that Rev. Cortez failed to show
that he is entitled to the issuance of the writ of
injunction. Moreover, the OSG questioned the
RTC’s reference to the IPRA and argued that
it is not applicable to the present case since
Rev. Cortez neither alleged in his Petition that
he is claiming rights under the said act nor
was there any showing that he is a member
of the Indigenous Cultural Communities
and/or the Indigenous Peoples as defined
under the IPRA.
In its Decision17 dated June 29, 2011, the CA
upheld the RTC’s issuance of a final
injunction based on the following
ratiocination:
The requisites necesary for the issuance of a
writ of preliminary injunction are: (1) the
existence of a clear and unmistakable right
that must be protected; and (2) an urgent and
paramount necessity for the writ to prevent
serious damage. Here, [Rev. Cortez] has
shown the existence of a clear and
unmistakable right that must be protected and
an urgent and paramount necessity for the
writ to prevent serious damage. Records
reveal that [Rev. Cortez] has been in peaceful
possession and occupation of the western
portion of Palaui Island, Sitio Siwangag, San
Vicente, Sta. Ana[,] Cagayan since 1962 or
prior to the issuance of Proclamation Nos.
201 and 447 in 1967 and 1994, respectively.
There he built an orphanage and a school for
the benefit of the members of the Dumagat
Tribe, in furtherance of his missionary and
charitable works. There exists a clear and
unmistakable right in favor [of Rev. Cortez]
since he has been in open, continuous and
notorious possession of a portion of Palaui
island. To deny the issuance of a writ of
injunction would cause grave and irreparable
injury to [Rev. Cortez] since he will be
displaced from the said area which he has
occupied since 1962. It must be emphasized
that Proclamation Nos. 201 and 447 stated
that the same are subject to private rights, if
there be [any]. Though Palaui Island has
been declared to be part of the naval
reservation and the whole [i]sland as a
marine protected area, both recognized the
existence of private rights prior to the
issuance of the same.
From the foregoing, we rule that the trial court
did not err when it made permanent the writ
of preliminary mandatory injunction. Section
9, Rule 58 of the Rules of Court provides that
if after the trial of the action it appears that
the applicant is entitled to have the act or acts
complained of permanently enjoined, the
court shall grant a final injunction perpetually
restraining the party or person enjoined from
the commission or continuance of the act or
acts or confirming the preliminary mandatory
injunction.18
Anent the issue of Rev. Cortez not being a
real party-in-interest, the CA noted that this
was not raised before the RTC and therefore
cannot be considered by it. Finally, with
respect to the RTC’s mention of the IPRA, the
CA found the same to be a mere obiter
dictum.
The dispositive portion of the CA Decision
reads:
WHEREFORE, premise[s] considered, the
instant Appeal is hereby DENIED. The
assailed 3 July 2007 Decision of the Regional
Trial Court of Aparri, Cagayan, Branch 8 in
Civil Case No. II-2403 is AFFIRMED.
SO ORDERED.19
Hence, this Petition brought by the OSG on
behalf of the Republic of the Philippines (the
Republic).
The Issue
The ultimate issue to be resolved in this case
is whether Rev. Cortez is entitled to a final
writ of mandatory injunction.
The Parties’ Arguments
The bone of contention as the OSG sees it is
the injunctive writ since Rev. Cortez failed to
prove his clear and positive right over the 5-
hectare portion of Palaui Island covered by
the same. This is considering that by his own
admission, Rev. Cortez started to occupy the
said area only in 1962. Hence, when the
property was declared as a military reserve in
1967, he had been in possession of the 5-
hectare area only for five years or short of the
30-year possession requirement for a bona
fide claim of ownership under the law. The
OSG thus argues that the phrase "subject to
private rights" as contained in Proclamation
No. 201 and Proclamation No. 447 cannot
apply to him since it only pertains to those
who have already complied with the
requirements for perfection of title over the
land prior to the issuance of the said
proclamations.
Rev. Cortez, for his part, asserts that the
arguments of the OSG pertaining to
ownership are all immaterial as his Petition
for injunction does not involve the
right to possess based on ownership but on
the right of possession which is a right
independent from ownership. Rev. Cortez
avers that since he has been in peaceful and
continuous possession of the subject portion
of Palaui Island, he has the right of
possession over the same which is protected
by law. He asserts that based on this right,
the writ of injunction was correctly issued by
the RTC in his favor and aptly affirmed by the
CA. On the technical side, Rev. Cortez avers
that the Republic has no legal personality to
assail the CA Decision through the present
Petition since it was not a party in the appeal
before the CA.
The Court’s Ruling
We grant the Petition.
For starters, the Court shall distinguish a
preliminary injunction from a final injunction.
"Injunction is a judicial writ, process or
proceeding whereby a party is directed either
to do a particular act, in which case it is called
a mandatory injunction, [as in this case,] or to
refrain from doing a particular act, in which
case it is called a prohibitory injunction."20 "It
may be the main action or merely a
provisional remedy for and as an incident in
the main action."21
"The main action for injunction is distinct from
the provisional or ancillary remedy of
preliminary injunction."22 A preliminary
injunction does not determine the merits of a
case or decide controverted facts.23 Since it is
a mere preventive remedy, it only seeks to
prevent threatened wrong, further injury and
irreparable harm or injustice until the rights of
the parties are settled.24 "It is usually granted
when it is made to appear that there is a
substantial controversy between the parties
and one of them is committing an act or
threatening the immediate commission of an
act that will cause irreparable injury or
destroy the status quo of the controversy
before a full hearing can be had on the merits
of the case."25 A preliminary injunction is
granted at any stage of an action or
proceeding prior to judgment or final
order.26 For its issuance, the applicant is
required to show, at least tentatively, that he
has a right which is not vitiated by any
substantial challenge or
contradiction.27 Simply stated, the applicant
needs only to show that he has the ostensible
right to the final relief prayed for in his
complaint.28 On the other hand, the main
action for injunction seeks a judgment that
embodies a final injunction.29 A final injunction
is one which perpetually restrains the party or
person enjoined from the commission or
continuance of an act, or in case of
mandatory injunctive writ, one which confirms
the preliminary mandatory injuction.30 It is
issued when the court, after trial on the
merits, is convinced that the applicant is
entitled to have the act or acts complained of
permanently enjoined.31 Otherwise stated, it is
only after the court has come up with a
definite pronouncement respecting an
applicant’s right and of the act violative of
such right, based on its appreciation of the
evidence presented, that a final injunction is
issued. To be a basis for a final and
permanant injunction, the right and the act
violative thereof must be established by the
applicant with absolute certainty.32
What was before the trial court at the time of
the issuance of its July 3, 2007 Decision is
whether a final injunction should issue. While
the RTC seemed to realize this as it in fact
made the injunction permanent, the Court,
however, finds the same to be wanting in
basis.
Indeed, the RTC endeavored to provide a
narrow distinction between a preliminary
injunction and a final injunction. Despite this,
the RTC apparently confused itself. For one,
what it cited in its Decision were
jurisprudence relating to preliminary
injunction and/or mandatory injunction as an
ancillary writ and not as a final injunction. At
that point, the duty of the RTC was to
determine, based on the evidence presented
during trial, if Rev. Cortez
has conclusively established his claimed right
(as opposed to preliminary injunction where
an applicant only needs to at
least tentatively show that he has a right)
over the subject area. This is considering that
the existence of such right plays an important
part in determining whether the preliminary
writ of mandatory injunction should be
confirmed.
Surprisingly, however, the said Decision is
bereft of the trial court’s factual findings on
the matter as well as of its analysis of the
same vis-a-vis applicable jurisprudence. As it
is, the said Decision merely contains a
restatement of the parties’ respective
allegations in the Complaint and the Answer,
followed by a narration of the ensuing
proceedings, an enumeration of the evidence
submitted by Rev. Cortez, a recitation of
jurisprudence relating to preliminary
injunction and/or specifically, to mandatory
injunction as an ancillary writ, a short
reference to the IPRA which the Court finds
to be irrelevant and finally, a conclusion that a
final and permanent injunction should issue.
No discussion whatsoever was made with
respect to whether Rev. Cortez was able to
establish with absolute certainty hisclaimed
right over the subject area.
Section 14, Article VIII of the Constitution, as
well as Section 1 of Rule 36 and Section 1,
Rule 120 of the Rules on Civil Procedure,
similarly state that a decision, judgment or
final order determining the merits of the case
shall state, clearly and distinctly, the facts and
the law on which it is based. Pertinently, the
Court issued on January 28, 1988
Administrative Circular No. 1, which requires
judges to make complete findings of facts in
their decision, and scrutinize closely the legal
aspects of the case in the light of the
evidence presented, and avoid the tendency
to generalize and to form conclusion without
detailing the facts from which such
conclusions are deduced.33
Clearly, the Decision of the RTC in this case
failed to comply with the aforestated
guidelines.
In cases such as this, the Court would
normally remand the case to the court a
quo for compliance with the form and
substance of a Decision as required by the
Constitution. In order, however, to avoid
further delay, the Court deems it proper to
resolve the case based on the merits.34
"Two requisites must concur for injunction to
issue: (1) there must be a right to be
protected and (2) the acts against which the
injunction is to be directed are violative of
said right."35 Thus, it is necessary that the
Court initially determine whether the right
asserted by Rev. Cortez indeed exists. As
earlier stressed, it is necessary that such right
must have been established by him with
absolute certainty.
Rev. Cortez argues that he is entitled to the
injunctive writ based on the
right of possession (jus possesionis) by
reason of his peaceful and continuous
possession of the subject area since 1962.
He avers that as this right is protected by law,
he cannot be peremptorily dispossessed
therefrom, or if already dispossessed, is
entitled to be restored in possession. Hence,
the mandatory injunctive writ was correctly
issued in his favor.
Jus possessionis or possession in the
concept of an owner36 is one of the two
concepts of possession provided under
Article 52537 of the Civil Code. Also referred
to as adverse possession,38 this kind of
possesion is one which can ripen into
ownership by prescription.39 As correctly
asserted by Rev. Cortez, a possessor in the
concept of an owner has in his favor the legal
presumption that he possesses with a just
title and he cannot be obliged to show or
prove it.40 In the same manner, the law
endows every possessor with the right to be
respected in his possession.41
It must be emphasized, however, that only
things and rights which are susceptible of
being appropriated may be the object of
possession.42 The following cannot be
appropriated and hence, cannot be
possessed: property of the public dominion,
common things (res communes) such as
sunlight and air, and things specifically
prohibited by law.43
Here, the Court notes that while Rev. Cortez
relies heavily on his asserted right of
possession, he, nevertheless, failed to show
that the subject area over which he has a
claim is not part of the public domain and
therefore can be the proper object of
possession.
Pursuant to the Regalian Doctrine, all lands
of the public domain belong to the
State.44 Hence, "[a]ll lands not appearing to
be clearly under private ownership are
presumed to belong to the State. Also, public
lands remain part of the inalienable land of
the public domain unless the State is shown
to have reclassified or alienated them to
private persons."45 To prove that a land is
alienable, the existence of a positive act of
the government, such as presidential
proclamation or an executive order; an
administrative action; investigation reports of
Bureau of Lands investigators; and a
legislative act or a statute declaring the land
as alienable and disposable must be
established.46
In this case, there is no such proof showing
that the subject portion of Palaui Island has
been declared alienable and disposable when
Rev. Cortez started to occupy the same.
Hence, it must be considered as still
inalienable public domain. Being such, it
cannot be appropriated and therefore not a
proper subject of possession under Article
530 of the Civil Code. Viewed in this light,
Rev. Cortez’ claimed right of possession has
no leg to stand on. His possession of the
subject area, even if the same be in the
concept of an owner or no matter how long,
cannot produce any legal effect in his favor
since the property cannot be lawfully
possessed in the first place.
The same goes true even if Proclamation No.
201 and Proclamation No. 447 were made
subject to private rights. The Court stated
in Republic v. Bacas,47 viz.:
Regarding the subject lots, there was a
reservation respecting ‘private rights.’
In Republic v. Estonilo, where the Court
earlier declared that Lot No. 4319 was part of
the Camp Evangelista Military Reservation
and, therefore, not registrable, it noted
the proviso in Presidential Proclamation No.
265 requiring the reservation to be subject to
private rights as meaning that persons
claiming rights over the reserved land were
not precluded from proving their claims.
Stated differently, the said proviso did not
preclude the LRC from determining whether x
x x the respondents indeed had registrable
rights over the property.
As there has been no showing that the
subject parcels of land had been
segregated from the military reservation,
the respondents had to prove that the
subject properties were alienable or
disposable land of the public
domain prior to its withdrawal from sale
and settlement and reservation for military
purposes under Presidential Proclamation
No. 265. The question is primordial
importance because it is determinative if the
land can in fact be subject to acquisitive
prescription and, thus, registrable under the
Torrens system. Without first determining
the nature and character of the land, all
other requirements such as length and
nature of possession and occupation over
such land do not come into play. The
required length of possession does not
operate when the land is part of the public
domain.
In this case, however, the respondents MARIANO C. DEL CASTILLO
miserably failed to prove that, before the Associate Justice
proclamation, the subject lands were already
private lands. They merely relied on such WE CONCUR:
‘recognition’ of possible private rights. In their
application, they alleged that at the time of ANTONIO T. CARPIO
their application, they had been in open, Associate Justice
continuous, exclusive and notorious Chairperson
possession of the subject parcels of land for
at least thirty (30) years and became its ARTURO D. JOSE CATRAL
owners by prescription. There was, however, BRION MENDOZA
no allegation or showing that the government Associate Justice Associate Justice
had earlier declared it open for sale or
settlement, or that it was already pronounced MARIVIC M.V.F. LEONEN
as inalienable and disposable.48 Associate Justice

In view of the foregoing, the Court finds that ATTESTATION

Rev. Cortez failed to conclusively establish
his claimed right over the subject portion of
Palaui Island as would entitle him to the
issuance of a final injunction.
Anent the technical issue raised by Rev.
Cortez, i. e, that the Republic has no
personality to bring this Petition since it was
not a party before the CA, the Court deems it
prudent to set aside this procedural barrier.
After all, "a party's standing before [the] Court
is a [mere] procedural technicality which may,
in the exercise of [its] discretion, be set aside
in view of the importance of the issue
raised."49
We note that Rev. Cortez alleged that he
sought the injunction so that he could
continue his humanitarian works. However,
considering that inalienable public land was
involved, this Court is constrained to rule in
accordance with the aforementioned.
I attest that the conclusions in the above
Decision had been reached in consultation
before the case was assigned to the writer of
the opinion of the Court's Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution and the Division Chairperson's
Attestation, I certify that the conclusions in
the above Decision had been reached in
consultation before the case was assigned to
the writer of the opinion of the Court's
Division.
MARIA LOURDES P.A. SERENO
Chief Justice

WHEREFORE, the Petition

is GRANTED. The June 29, 2011 Decision of
the Court of Appeals in CA-GR. CV No.
89968 denying the appeal and affirming the Footnotes
July 3, 2007 Decision of the Regional Trial
Court of Aparri, Cagayan-Branch 08 in Spl.
Civil Action Case No. II-2403, is REVERSED
and SET ASIDE. Accordingly, the final
injunction issued in this case is
ordered DISSOLVED and the Petition for
Injunction in Spl. Civil Action Case No. II-
2403, DISMISSED.
SO ORDERED.
1
Rollo, pp. 8-48.
2
CA rol/o, pp. 204-211; penned by
Associate Justice Fiorito S. Macalino
and concurred in by Associate Justices
Juan Q. Enriquez, Jr. and Ramon M.
Bato, Jr.
3
Records, pp. 233-241; penned by
Presiding Judge Conrado F. Manauis.
4 23
Id. at 1-2. Bank of the Philippine
Islands v. Judge Hontanosas, Jr., G.R.
5
Id. at 1-4; docketed as Spl. Civil No. 157163, June 25, 2014.
Action Case No. 11-2403.
24
Id.
6
See RTC Order dated June 30, 2000,
25
id. at 9-11. Buyco v. Baraquia, 623 Phil. 596,
601 (2009).
7
Id. at 17-24 and 52-63.
26
Section 1, Rule 58, Rules of Court.
8
Id. at 66-72; penned by Judge Virgilio
27
M. Alameda of RTC, Aparri, Cagayan, Spouses Dela Rosa v. Heirs of Juan
Branch 7. This case was eventually Valdez, 670 Phil. 97, 110 (2011).
raffled off and transferred to Branch 8
28
upon the voluntary inhibition of Judge Bank of the Philippine
Andres Q. Cipriano. Islands v. Judge Hontanosas, Jr.,
supra note 23, citing Saulog v. Court
See April 18, 2006 Order, id. at 165. of Appeals, 330 Phil. 590 (1996).
9 29
Id. at 71-72. Bacolod City Water District v. Hon.
Labayen, supra note 21.
10
Id. at 101-104.
30
Sec. 9, Rule 58 of the Rules of
11
Id. at 233-241. Court.
12 31
Id. at 240. Id.
13 32
Id. at 240-241. City of Naga v. Hon. Asuncion, 579
Phil. 781, 799 (2008).
14
Id. at 242.
33
Ongson v. People, 504 Phil. 214,
15
Id. at 244. 224 (2005).
34
16
See Brief for Appellant, CA rollo, pp. Id. at 226.
110-145.
35
Philippine Economic Zone Authority
17
Id. at 204-211. v. Carantes, supra note 20.
36
18
Id. at 209-210. VITUG, JOSE, C., Compendium of
Civil Law and Jurisprudence, 1993
19
Id. at 211. Revised Edition, p. 303.
37
20
Philippine Economic Zone Authority Art. 525. The possession of things or
v. Carantes, 635 Phil. 541, 548 (2010). rights may be had in one of two
concepts: either in the concept of
21
BP Phils. Inc. (Formerly Burmah owner or in that of the holder of the
Castrol Philippines, Inc.) v. Clark thing or right to keep or enjoy it, the
Trading Corporation, G.R. No. 175284, ownership pertaining to another
September 19, 2012, 681 SCRA 365, person. (Emphasis supplied)
374-375, citing Bacolod City Water
38
District v. Labayen, 487 Phil. 335, 346 PARAS, EDGARDO, L., Civil Code
(2004). of the Philippines,
Annotated, Sixteenth Edition, 2008, p.
22
Id. 457.
 39
VITUG, JOSE, C., Compendium of
Civil Law and Jurisprudence, 1993
Revised Edition, p. 304.
40
CIVIL CODE, Article 541.
41
CIVIL CODE, Article 539.
42
CIVIL CODE, Article 530.
43
TOLENTINO, ARTURO,
M., Commentaries and Jurisprudence
on the Civil Code of the Philippines,
Vol. II, p. 228; PARAS, EDGARDO,
L., Civil Code of the Philippines,
Annotated, Sixteenth Edition, 2008,
pp. 474-475.
44
Heirs of Mario Malabanan v.
Republic of the Philippines, G.R. No.
179987, September 3, 2013, 704
SCRA 561, 575.
45
Id.
46
Valiao v. Republic of the
Philippines, 677 Phil. 318, 327 (2011).
47
G.R. No. 182913, November 20,
2013, 710 SCRA 411.
48
Id. at 436-437; emphasis supplied;
citations omitted.
49
Henares, Jr. v. Land Transportation
Franchising and Regulatory
Board, 535 Phil. 835, 845 (2006).
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 172138 September 8,
2010
NELSON JENOSA and his son NIÑO
CARLO JENOSA, SOCORRO CANTO and
her son PATRICK CANTO, CYNTHIA
APALISOK and her daughter CYNDY
APALISOK, EDUARDO VARGAS and his
son CLINT EDUARD VARGAS, and NELIA
DURO and her son NONELL GREGORY
DURO, Petitioners,
vs.
REV. FR. JOSE RENE C. DELARIARTE,
O.S.A., in his capacity as the incumbent
Principal of the High School Department
of the University of San Agustin, and the
UNIVERSITY OF SAN AGUSTIN, herein
represented by its incumbent President
REV. FR. MANUEL G. VERGARA,
O.S.A., Respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for review1 of the 16 June
2005 Decision2 and 22 March
20063 Resolution of the Court of Appeals in
CA-G.R. SP No. 78894. In its 16 June 2005
Decision, the Court of Appeals granted the
petition of respondents University of San
Augustin (University), represented by its
incumbent President Rev. Fr. Manuel G.
Vergara, O.S.A. (University President), and
Rev. Fr. Jose Rene C. Delariarte, O.S.A.
(Principal), in his capacity as the incumbent
Principal of the High School Department of
the University (respondents) and ordered the
dismissal of Civil Case Nos. 03-27460 and
03-27646 for lack of jurisdiction over the
subject matter. In its 22 March 2006
Resolution, the Court of Appeals denied the
motion for reconsideration of petitioners
Nelson Jenosa and his son Niño Carlo
Jenosa, Socorro Canto and her son Patrick
Canto, Cynthia Apalisok and her daughter
Cyndy Apalisok, Eduardo Vargas and his son
Clint Eduard Vargas, and Nelia Duro and her
son Nonell Gregory Duro (petitioners).
The Facts
On 22 November 2002, some students of the
University, among them petitioners Niño
Carlo Jenosa, Patrick Canto, Cyndy Apalisok,
Clint Eduard Vargas, and Nonell Gregory
Duro (petitioner students), were caught
engaging in hazing outside the school
premises.1awphi1 The hazing incident was
entered into the blotter of the Iloilo City
Police.4
Thereafter, dialogues and consultations were
conducted among the school authorities, the
apprehended students and their parents.
During the 28 November 2002 meeting, the
parties agreed that, instead of the possibility
of being charged and found guilty of hazing,
the students who participated in the hazing
incident as initiators, including petitioner
students, would just transfer to another
school, while those who participated as
neophytes would be suspended for one
month. The parents of the apprehended
students, including petitioners, affixed their
signatures to the minutes of the meeting to
signify their conformity.5 In view of the
agreement, the University did not anymore
convene the Committee on Student Discipline
(COSD) to investigate the hazing incident.
On 5 December 2002, the parents of
petitioner students (petitioner parents) sent a
letter to the University President urging him
not to implement the 28 November 2002
agreement.6 According to petitioner parents,
the Principal, without convening the COSD,
decided to order the immediate transfer of
petitioner students.
On 10 December 2002, petitioner parents
also wrote a letter to Mrs. Ida B. Endonila,
School Division Superintendent, Department
of Education (DepEd), Iloilo City, seeking her
intervention and prayed that petitioner
students be allowed to take the home study
program instead of transferring to another
school.7 The DepEd asked the University to
comment on the letter.8 The University replied
and attached the minutes of the 28 November
2002 meeting.9
On 3 January 2003, petitioners filed a
complaint for injunction and damages with
the Regional Trial Court, Branch 29, Iloilo City
(trial court) docketed as Civil Case No. 03-
27460.10 Petitioners assailed the Principal’s
decision to order the immediate transfer of
petitioner students as a violation of their right
to due process because the COSD was not
convened.
On 5 February 2003, the trial court issued a
writ of preliminary injunction and directed
respondents to admit petitioner students
during the pendency of the case.11 The 5
February 2003 Order reads:
WHEREFORE, let [a] Writ of Preliminary
Mandatory Injunction issue. The defendants
are hereby directed to allow the plaintiff’s
minor children to attend their classes during
the pendency of this case, without prejudice
to any disciplinary proceeding to which any or
all of them may be liable.
SO ORDERED.12
Respondents filed a motion for
reconsideration and asked for the dissolution
of the writ. The trial court denied respondents’
motion. Respondents complied but with
reservations.
On 25 March 2003, respondents filed a
motion to dismiss. Respondents alleged that
the trial court had no jurisdiction over the
subject matter of the case and that petitioners
were guilty of forum shopping. On 19 May
2003, the trial court denied respondents’
motion. Respondents filed a motion for
reconsideration.
On 21 April 2003, petitioners wrote the
DepEd and asked that it direct the University
to release the report cards and other
credentials of petitioner students.13 On 8 May
2003, the DepEd sent a letter to the
University advising it to release petitioner
students’ report cards and other credentials if
there was no valid reason to withhold the
same.14 On 14 May 2003, the DepEd sent
another letter to the University to follow-up
petitioners’ request.15 On 20 May 2003, the
University replied that it could not release
petitioner students’ report cards due to their
pending disciplinary case with the COSD.16
On 28 May 2003, petitioners filed another
complaint for mandatory injunction praying for
the release of petitioner students’ report
cards and other credentials docketed as Civil
Case No. 03-27646.17
The trial court consolidated the two cases.18
On 17 June 2003, the trial court issued a writ
of preliminary injunction and directed the
University to release petitioner students’
report cards and other
credentials.19 Respondents filed a motion for
reconsideration. Respondents alleged that
they could not comply with the writ because
of the on-going disciplinary case against
petitioner students.
On 26 June 2003, the COSD met with
petitioners for a preliminary conference on
the hazing incident. On 7 July 2003, the
University, through the COSD, issued its
report finding petitioner students guilty of
hazing. The COSD also recommended the
exclusion of petitioner students from its rolls
effective 28 November 2002.
On 14 July 2003, the trial court issued an
Order denying both motions for
reconsideration.20
On 1 September 2003, respondents filed a
special civil action for certiorari with the Court
of Appeals. Respondents insisted that the
trial court had no jurisdiction over the subject
matter of Civil Case Nos. 03-27460 and 03-
27646. Respondents also alleged that
petitioners were guilty of forum shopping.
The Ruling of the Court of Appeals
In its 16 June 2005 Decision, the Court of
Appeals granted respondents’ petition and
ordered the trial court to dismiss Civil Case
Nos. 03-27460 and 03-27646 for lack of
jurisdiction over the subject matter because
of petitioners’ failure to exhaust administrative
remedies or for being premature. According
to the Court of Appeals, petitioners should
have waited for the action of the DepEd or of
the University President before resorting to
judicial action. The Court of Appeals held:
From the foregoing, it is clear that the court a
quo committed grave [abuse] of discretion
amounting to LACK OF JURISDICTION in
INTERFERING, pre-maturely, with the
exclusive and inherent authority of
educational institutions to discipline.
In directing herein petitioners [respondents in
this case] to re-admit herein private
respondents [petitioners in this case] and
eventually, to release the report cards and
other school credentials, prior to the action of
the President of USA and of the
recommendation of the COSD, the court a
quo is guilty of improper judicial intrusion by
encroaching into the exclusive prerogative of
educational institutions.21
Petitioners filed a motion for
reconsideration.22 In its 22 March 2006
Resolution, the Court of Appeals denied
petitioners’ motion for lack of merit.
The Issues
Petitioners raise the following issues:
1. Was the Court of Appeals correct in
holding that Branch 29 of the Regional
Trial Court of Iloilo City in Civil Case
Nos. 03-27460 and 03-27646 did not
acquire jurisdiction over the subject
matter of this case for failure of
petitioners to exhaust administrative
remedies?
2. Was the
recommendation/report/order of the
Committee on Student Discipline dated
7 July 2003 valid, and did it justify the
order of exclusion of petitioner
students retroactive to 28 November
2002?23
The Ruling of the Court
The petition has no merit.
Discipline in education is specifically
mandated by the 1987 Constitution which
provides that all educational institutions shall
"teach the rights and duties of citizenship,
strengthen ethical and spiritual values,
develop moral character and personal
discipline."24 Schools and school
administrators have the authority to maintain
school discipline25 and the right to impose
appropriate and reasonable disciplinary
measures.26 On the other hand, students
have the duty and the responsibility to
promote and maintain the peace and
tranquility of the school by observing the rules
of discipline.27
In this case, we rule that the Principal had the
authority to order the immediate transfer of
petitioner students because of the 28
November 2002 agreement.28 Petitioner
parents affixed their signatures to the minutes
of the 28 November 2002 meeting and
signified their conformity to transfer their
children to another school. Petitioners
Socorro Canto and Nelia Duro even wrote a
letter to inform the University that they would ANTONIO T. CARPIO
transfer their children to another school and Associate Justice
requested for the pertinent papers needed for
the transfer.29 In turn, the University did not WE CONCUR:
anymore convene the COSD. The University
agreed that it would no longer conduct ANTONIO EDUARDO B. NACHURA
disciplinary proceedings and instead issue Associate Justice
the transfer credentials of petitioner students.
Then petitioners reneged on their agreement DIOSDADO M. ROBERTO A.
without any justifiable reason. Since PERALTA ABAD
petitioners’ present complaint is one for Associate Justice Associate Justice
injunction, and injunction is the strong arm of
equity, petitioners must come to court with JOSE C. MENDOZA
clean hands. In University of the Philippines Associate Justice
v. Hon. Catungal, Jr.,30 a case involving
student misconduct, this Court ruled: ATTESTATION

Since injunction is the strong arm of equity,
he who must apply for it must come with
equity or with clean hands. This is so
because among the maxims of equity are (1)
he who seeks equity must do equity, and (2)
he who comes into equity must come with
clean hands. The latter is a frequently stated
maxim which is also expressed in the
principle that he who has done inequity shall
not have equity. It signifies that a litigant may
be denied relief by a court of equity on the
ground that his conduct has been inequitable,
unfair and dishonest, or fraudulent, or
deceitful as to the controversy in issue.31
Here, petitioners, having reneged on their
agreement without any justifiable reason,
come to court with unclean hands. This Court
may deny a litigant relief if his conduct has
been inequitable, unfair and dishonest as to
the controversy in issue.1avvphi1
I attest that the conclusions in the above
Decision had been reached in consultation
before the case was assigned to the writer of
the opinion of the Court’s Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution, and the Division Chairperson’s
Attestation, I certify that the conclusions in
the above Decision had been reached in
consultation before the case was assigned to
the writer of the opinion of the Court’s
Division.
RENATO C. CORONA
Chief Justice

Since petitioners have come to court with

inequitable and unfair conduct, we deny them
relief. We uphold the validity of the 28
November 2002 agreement and rule that the
Principal had the authority to order the
immediate transfer of petitioner students
based on the 28 November 2002 agreement.
WHEREFORE, we DENY the petition.
We AFFIRM the 16 June 2005 Decision and
the 22 March 2006 Resolution of the Court of
Appeals.
SO ORDERED.
Footnotes
1
Under Rule 45 of the Rules of Civil
Procedure.
2
Rollo, pp. 24-34. Penned by
Associate Justice Arsenio J. Magpale,
with Associate Justices Sesinando E.
Villon and Enrico A. Lanzanas,
concurring.
3
Id. at 36-37. Penned by Associate
Justice Arsenio J. Magpale, with
 29
Associate Justices Vicente L. Yap and Id. at 246 and 248.
Enrico A. Lanzanas, concurring.
30
338 Phil. 728 (1997).
4
Id. at 62.
31
Id. at 743-744.
5
Id. at 93-94.
6
Id. at 63-64.
7
Id. at 65-68.
8
Id. at 69.
9
Id. at 92-94.
10
Id. at 55-61.
11
Id. at 95-96.
12
Id. at 96.
13
Id. at 76.
14
Id. at 75.
15
Id. at 77.
16
Id. at 78-79.
17
Id. at 98-105.
18
Id. at 388-389.
19
Id. at 141-142.
20
Id. at 151-152.
21
Id. at 32-33.
22
Id. at 39-46.
23
Id. at 852.
24
Constitution, Art. XIV, Sec. 3(2).
25
Manual of Regulations for Private
Schools (1992), Section 74.
26
Manual of Regulations for Private
Schools (1992), Section 75.
27
Batas Pambansa Blg. 232 (1982),
Section 15.3.
28
Rollo, pp. 92-94.