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:
1 1944 A quonset
building
was
constructed by the
American Liberation
Forces
2 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.
3 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.
4 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

RACHELLE ANNE GUTIERREZ

Ordinance
No.
147.
o May 19,
1989

another
letter of the
same tenor.
o
Both
letters were
unheeded.
5 May 24, 1989
Mayor
Valencia
ordered demolition.

6 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.

PROPERTY DIGESTS (2013 2014) ATTY. VIVENCIO ABANO

respondent Court.

1
2

MAJOR POINT 1: It is not

disputed that the quonset
September 6, 1989 Petitioners quonset building was building being used for the
completely demolished. In its place sprang shanties storage of copra was
located outside the zone
and huts.
January 25, 1990 Court of Appeals reversed the for warehouses, but this
ruling saying that the Mayor was not vested with does not empower the
power to order summarily, and without any judicial Mayor to avail of a
proceeding, the demolition of the quonset building, summary remedy.
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.

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 Nonconformance, the foregoing provision should not be
interpreted as authorizing the summary removal of a nonconforming 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

1 Section 16 of the

Ordinance
provides:
A certificate of
non-conformance
for
all
nonconforming
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.
2 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.
3 The penal provision
of
the
ordinance
requires that the
Court be the one to
impose the penalty.
4 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]).
MAJOR POINT 2: Respondents cannot seek cover under the
general welfare clause authorizing the abatement of
nuisances without judicial proceedings.
1 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.
2 While the Sangguniang Bayan may provide for the
abatement of a nuisance, it cannot declare a particular

RACHELLE ANNE GUTIERREZ

thing as a nuisance
per se and order its
condemnation. The
nuisance can only be
so
adjudged
by
judicial
determination.
3 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.

PROPERTY DIGESTS (2013 2014) ATTY. VIVENCIO ABANO

MAJOR POINT 3: The government had deprived

petitioner of her property without due process of law.
1 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.
2 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