PROPERTY

DIGESTS (2013 2014)

ATTY. VIVENCIO ABANO

G.R. No. 95279 July 25, 1991 ESTATE OF GREGORIO FRANCISCO v. COURT OF APPEALS Plaintiffs: ESTATE OF GREGORIA FRANCISCO Defendant: HON. COURT OF APPEALS, HON. SALVADOR A. MEMORACION, in his capacity as Presiding Judge of the Regional Trial Court of Isabela, Basilan Province, Branch 2, MUNICIPALITY OF ISABELA, Basilan Province, herein represented by BENJAMIN VALENCIA, in his capacity as Municipal Mayor, Isabela, Basilan Province, ROGELIO L. IGOT, FELICISIMO PIOQUINTO, DANIEL PADINAS, ANTONIO CABANGON, FELIX ROXAS, BENJAMIN FERRER, GREGORIO TABADA, EFREN DELOS REYES, FLORENCIO HUGO, JESUS FRANCISCO, ALFREDO TUBILAG, PABLO ANDRES CASE: Petitioner uses a Quonset building (purchased by her late husband) as a storage for copra. She was allowed so by the Philippine Ports Authority (who owned the land on which the building stands), and therefore was in lawful possession of it. The Mayor, in two separate letters, ordered petitioner to relocate her building because it was not in conformity to the zoning ordinance passed by the Sangguniang Bayan which prohibited warehouses in that area. Such letters however went unheeded. When the Mayor ordered the demolition of the Quonset building, petitioner sought relief from the Trial Court who denied her Petition for Writ of Prohibition. This was initially reversed by the Court of Appeals, but the CA reversed itself and upheld the Trial Court. The Supreme Court ruled that the demolition was done without judicial process and thus, denied petitioner her right to due process of law. The Court notes that the Ordinance itself requires judicial determination before the structure is said to violative of its provisions and therefore should be demolished. The Court denied respondents argument that the demolition was in accordance with their exercise of police power (general welfare clause), because petitioners structure is not a nuisance

per se. Furthermore, a nuisance can only be so adjudged by judicial determination. As such, the Mayor had no right to demolish the property summarily without judicial process. DOCTRINE: Abatement (reduction or removal of a nuisance) under the general welfare clause applies only to a nuisance per se, or one which affects the immediate safety of persons and property and may be summarily abated under the undefined law of necessity. BACKGROUND: 1944 A quonset building was constructed by the American Liberation Forces 1946 The building was purchased by Gregoria Francisco who died in 1976 o The building stands on a lot owned by the Philippine Ports Authority which, by virtue of Proclamation No. 83 by President Elpidio Quirino, was declared for the exclusive use of port facilities. January 10, 1989 The Philippine Ports Authority issued to Tan Gin San (surviving spouse of Gregoria Francisco) a permit to occupy the lot where the building stands for a period of one (1) year, to expire on 31 December 1989. The permittee was using the quonset for the storage of copra. May 8, 1989 Municipal Mayor, Benjamin Valencia, notified Tan Gin San by mail to remove or relocate because the city was conducting a "clean-up campaign on illegal squatters and unsanitary surroundings along Strong Boulevard" under Zoning Ordinance No. 147. o May 19, 1989 another letter of the same tenor. o Both letters were unheeded. May 24, 1989 Mayor Valencia ordered demolition. August 7, 1989 The Trial Court denied petitioners Writ of Prohibition with Injunction and Damages and upheld the power of respondent Mayor to order the demolition under the ordinance, even without judicial authority.

RACHELLE ANNE GUTIERREZ

PROPERTY DIGESTS (2013 2014)

ATTY. VIVENCIO ABANO

September 6, 1989 Petitioners quonset building was completely demolished. In its place sprang shanties and huts. January 25, 1990 Court of Appeals reversed the ruling saying that the Mayor was not vested with power to order summarily, and without any judicial proceeding, the demolition of the quonset building, which was not a nuisance per se, and that petitioner is in legal possession of the land on which the building stands by virtue of the permit issued by the Philippine Ports Authority (Zamboanga Province). June 13, 1990 The CA reversed itself saying that the Mayor initial order of demolition which was defective as being without judicial process was cured when herein petitioner filed a petition for prohibition and injunction and was heard on oral argument. Respondents justify the demolition in the exercise of police power and for reasons of health, safety and general welfare.

Section 16 of the Ordinance provides: A certificate of non-conformance for all non-conforming uses shall be applied for by the owner or agent of the property involved within twelve (12) months from the approval of this Ordinance, otherwise the non-conforming use may be condemned or removed at the owners expense. Penal Provision of the Ordinance: Any person who violates any of the provisions of this ordinance shall, upon conviction, be punished x x x at the discretion of the Court x x x. The penal provision of the ordinance requires that the Court be the one to impose the penalty. Furthermore, the Local Government Code imposes upon the Mayor the duty to cause to be instituted judicial proceedings in connection with the violation of ordinances (Local Government Code, Sec. 141 [2] [t]).

ISSUES TO BE RESOLVED: 1. Whether or not Respondent Mayor could summarily, without judicial process, order the demolition of petitioners quonset building. RESOLUTIONS AND ARGUMENTS ISSUE 1 Whether or not Respondent Mayor could summarily, without judicial process, order the demolition of petitioners quonset building. NO. Even granting that petitioner failed to apply for a Certificate of Non-conformance, the foregoing provision should not be interpreted as authorizing the summary removal of a non-conforming building by the municipal government. For if it does, it must be struck down for being in contravention of the requirements of due process, as originally held by the respondent Court. MAJOR POINT 1: It is not disputed that the quonset building being used for the storage of copra was located outside the zone for warehouses, but this does not empower the Mayor to avail of a summary remedy.

MAJOR POINT 2: Respondents cannot seek cover under the general welfare clause authorizing the abatement of nuisances without judicial proceedings. That tenet applies to a nuisance per se, or one which affects the immediate safety of persons and property and may be summarily abated under the undefined law of necessity. While the Sangguniang Bayan may provide for the abatement of a nuisance, it cannot declare a particular thing as a nuisance per se and order its condemnation. The nuisance can only be so adjudged by judicial determination. The storage of copra in the quonset building is a legitimate business. By its nature, it cannot be said to be injurious to rights of property, of health or of comfort of the community. If it be a nuisance per accidens it may be so proven in a hearing conducted for that purpose. It is not per se a nuisance warranting its summary abatement without judicial intervention.

RACHELLE ANNE GUTIERREZ

PROPERTY DIGESTS (2013 2014)

ATTY. VIVENCIO ABANO

MAJOR POINT 3: The government had deprived petitioner of her property without due process of law. Petitioner was in lawful possession of the lot and quonset building by virtue of a permit from the Philippine Ports Authority (Port of Zamboanga) when demolition was effected. It was not squatting on public land. Its property was not of trifling value. It was entitled to an impartial hearing before a tribunal authorized to decide whether the quonset building did constitute a nuisance in law. The fact that petitioner filed a suit for prohibition and was subsequently heard thereon will not cure the defect. FINAL VERDICT: For the precipitate demolition, therefore, petitioner should be entitled to just compensation, the amount of which is for the Trial Court to determine. We are not inclined to grant petitioner damages, however, as it simply ignored the demand to remove or relocate its quonset building. NO SEPARATE OPINIONS

RACHELLE ANNE GUTIERREZ