THIRD DIVISION

[G.R. No. 107916. March 31, 1995.]

PERCIVAL MODAY, ZOTICO MODAY (deceased)
and LEONARA MODAY, petitioners, vs. COURT OF
APPEALS, JUDGE EVANGELINE S. YUIPCO OF
BRANCH 6, REGIONAL TRIAL COURT, AGUSAN
DEL SUR AND MUNICIPALITY OF BUNAWAN,
respondents.
SYLLABUS
REMEDIAL LAW; PROVISIONAL REMEDIES;
TEMPORARY RESTRAINING ORDER; WILLFUL
REFUSAL TO COMPLY WITH THE TERMS
THEREOF CONSTITUTES CONTEMPT OF COURT.
Respondent Municipality of Bunawan, acting
through its mayor, clearly disobeyed the restraining
order issued by the Court on December 8, 1993.
Respondent admits having constructed temporary
booths on the subject land as well as having used the
buildings thereon for public service-oriented activities.
The explanation given by respondent municipality is
unacceptable. The purpose for which the buildings
were used is immaterial. Respondent was duty bound
to obey the injunction issued by this Court. The TRO
was explicit in its language. Violating its purpose and
language is patently contemptuous and merits the
corresponding punishment. We reiterate the
restraining order issued by the Court on December 8,
1993. WHEREFORE, the respondent Municipality of
Bunawan, Agusan Del Sur, through its incumbent
Municipal Mayor, is cited for contempt and is hereby
FINED in the amount of one thousand pesos
(P1,000.00) with the WARNING that a repetition or
continuation of the acts herein found to constitute
contempt of court will be dealt with more severely.
The mayor is hereby ordered to DEMOLISH the
structures subject of the restraining order.
DECISION
ROMERO, J p:
Petitioner seeks the resolution of his Omnibus Motion
for the Enforcement of Restraining Order and
Contempt.
In connection with the petition for review involving the
expropriation of petitioners' land by respondent
Municipality of Bunawan, Agusan Del Sur, the Court

on December 8, 1993 resolved to issue a temporary

restraining order enjoining and restraining:
"a) Judge Evangeline S. Yuipco of the Regional Trial
Court of Prosperidad, Agusan Del Sur, Branch 6, from
further enforcing her decision, dated July 2, 1991 in
Special Civil Case No. 719, for "Eminent Domain",
and
"b) the respondent Municipality of Bunawan, through
its incumbent Mayor from using and occupying all
buildings constructed within and from further
constructing any building on the land subject of the
herein petition, effective immediately and until further
orders from this Court."

We reiterate the restraining order issued by the Court

on December 8, 1993.
WHEREFORE, the respondent Municipality of
Bunawan, Agusan Del Sur, through its incumbent
Municipal Mayor, is cited for contempt and is hereby
FINED in the amount of one thousand pesos
(P1,000.00) with the WARNING that a repetition or
continuation of the acts herein found to constitute
contempt of court will be dealt with more severely.
The mayor is hereby ordered to DEMOLISH the
structures subject of the restraining order. prcd
SO ORDERED.
Feliciano, Melo, Vitug and Francisco, JJ., concur.

In his aforesaid Omnibus Motion, petitioner alleges

that the municipal mayor continues to use the
buildings on the subject land and even constructed
new "blocktiendas" thereon in October 1994.
Photographs, affidavits and an invitation to an affair
held there attached to the motion show such
continuing use of the subject land. He prays that the
municipal mayor and municipal officials be cited for
contempt. prLL
Petitioner also alleges that the sheriff has refused to
enforce the TRO enjoining his regional trial court from
proceeding with the case. Accordingly, he prays that a
law enforcement agency be designated to enforce the
restraining order by padlocking the buildings and
demolishing the blocktiendas on the land.
In their opposition to the motion, respondent
municipal mayor admits the construction of temporary
booths for a certain municipal project which was due
to be demolished after October 29, 1994. However,
no photos or other proofs were submitted to show that
the booths had indeed been demolished. Respondent
also alleges that the buildings and the land were
indeed used, not for Mayor Bustillo's personal
purposes, but for public service and public interest.
Respondent Municipality of Bunawan, acting through
its mayor, clearly disobeyed the restraining order
issued by the Court on December 8, 1993.
Respondent admits having constructed temporary
booths on the subject land as well as having used the
buildings thereon for public service-oriented activities.
The explanation given by respondent municipality is
unacceptable. The purpose for which the buildings
were used is immaterial. Respondent was duty bound
to obey the injunction issued by this Court. The TRO
was explicit in its language. Violating its purpose and
language is patently contemptuous and merits the
corresponding punishment.

SECOND DIVISION
[G.R. No. 6690. March 29, 1912.]
SILVESTRA TENORIO Y VILLAMIL, plaintiffappellee, vs. THE MANILA RAILROAD COMPANY,
defendant-appellant.
Jose Robles Lahesa and O'Brien & DeWitt, for
appellant
A. B. Ritchey, for appellee.
SYLLABUS
1.
RAILROAD
CORPORATIONS;
EMINENT
DOMAIN; STATUTORY CONSTRUCTION. A
statute authorizing a railroad company to exercise the
power of eminent domain being in derogation of
general right, and conferring upon it exceptional
privileges with regard to the property of others of
which it may have need, should be construed strictly
in favor of land owners whose property is affected by
its terms; and before any right to take possession of
land under such a statute can be lawfully exercised its
provisions must be "fully and fairly" complied with.
2. ID.; ID.; ACTION FOR DAMAGES. The seizure
and occupation of property by such a railroad
company without first serving process on the owners
or occupants in the manner and form prescribed by
the statute authorizing condemnation proceedings, is
so gross a violation of one of the most essential
conditions precedent prescribed by the statute, that
no claim by the company that it is acting or desires to
act under the authority of its charter in taking
possession of this property, can be heard by way of
defense to an action for damages for the unlawful
trespass.
3. ID.; ID.; ID.; ERROR. Judgment for damages
against the defendant railroad company sustained,
notwithstanding the fact that there was error in
excluding certain evidence offered by the defendant, it
appearing from a review of the whole record that the
result would not have been otherwise had this
evidence been admitted.
4. ID.; ID.; ID.; MARKET VALUE OF LAND. While
evidence touching the assessed valuation of land is
by no means conclusive as to its actual market value,
and is in general of but little value, nevertheless
evidence of this nature is competent and admissible
for what it is worth, where the question of damages
for the unlawful taking of such land is at issue.

5. ID.; ID.; ID.; UNLAWFUL POSSESSION. A

railroad company having unlawfully taken possession
of a part of a tract of land, and by its operations
thereon rendered the whole tract worthless to the
owner, the latter is entitled to abandon the entire tract
and recover damages for its full value.
DECISION
CARSON, J p:
This is an action to recover damages for the alleged
unlawful detention and occupation by defendant of a
small parcel of land, the property of the plaintiff,
situated near the railroad station in Dagupan in the
Province of Pangasinan.
Plaintiff alleges that the land in question, some 1,219
square meters in extent, is worth P7,314.40; that
before it was entered upon by defendant, two small
houses erected thereon brought her a rental at the
rate of P280 per annum of which she has been
deprived by defendant since the month of March,
1907; that the defendant company compelled her to
move three buildings from the land taken by it,
whereby she had suffered damages in the sum of
P400 and that as a result of the unlawful occupation
of this tract of land by the defendant company she
had suffered further damages to the extent of P250
from the accumulation of water on an adjoining parcel
of land of which she is the owner.
Defendant company answering, admits that it has
taken and is now occupying a small part of the land in
question, 314 meters in extent; but alleges that it is
now and always has been ready and willing to pay the
plaintiff a fair price for the land thus taken and all
damages to the remainder of her land resulting
therefrom.
In explanation of the fact that it took possession of
and continues to occupy this part of the land in
question with out the express consent of the plaintiff
and without having made payment therefor, defendant
company alleges that the land taken is a part of
certain lands described in condemnation proceedings
instituted in the Court of First Instance of the Province
of Pangasinan, whereby, by virtue of the authority
lawfully conferred upon defendant company, it sought
to have the land in question, and other lands in that
province, condemned for use as a roadbed; and while
the facts are not fully developed in the record, it does
appear that condemnation proceedings were regularly
instituted for the purposes indicated, and there are
indications in the record that the land in question was
included in the lands sought to be condemned

therein, but that in those proceedings it was described

as the property of one Silvino Tenorio, although the
name of the true owner, the plaintiff in this action, is,
as she alleges, Silvestra Tenorio.
The defendant company both by demurrer and
answer, undertook in the court below to question
plaintiff s right to maintain this action (which is an
ordinary action for damages for trespass on plaintiff's
land) on the ground that under the statutory
provisions for the condemnation of lands by virtue of
which defendant company had already instituted
proceedings looking to the condemnation of the land
in question, it was the duty of the plaintiff to seek
redress in those proceedings. But while we agree with
counsel for defendant company that, had the
defendant company before entering upon and taking
possession of the land in question, proceeded in
accordance with the provisions of law touching
condemnation proceedings, by virtue of which it
claims to have been acting, in that event the plaintiff
would not be entitled to bring a separate action; we
are of opinion that in the absence of proof of a
substantial compliance with the provisions of law
touching such proceedings the plaintiff was clearly
entitled to institute any appropriate action to recover
the damages which she may have suffered as a result
of an unauthorized and unlawful seizure and
occupation of her property.
"The mode in which land may be condemned and the
steps to be taken for that purpose are prescribed
either by the statute or charter conferring the right of
eminent domain or by a general law. The remedy so
provided is exclusive, and as a general rule the steps
prescribed by the statute must be followed or the
proceedings will be void. Since these statutes are in
derogation of general right and of common-law modes
of procedure, they must be strictly construed in favor
of the landowner, and must be at least substantially or
as sometimes said, 'fully and fairly' complied with.
Indeed the general rule in the absence of statutory
provision to the contrary, is that they must be strictly
complied with. . . . Thus the statutes must be
complied with as to filing and contents of petition or
application, . . . notice to the landowner and other
persons interested in the property, . . . and all other
conditions precedent prescribed by the statute."
(Cyclopedia of Law and Procedure, vol. 15, pp. 815817, and cases cited. See also American and English
Encyclopedia of Law, vol. 10, p. 1054, and cases
cited.)
The mode in which the defendant company was
authorized to exercise the power of eminent domain is

to be found in various Acts of the Commission of

which the following are pertinent citations:
"The Government of the Philippine Islands, or of any
province or department thereof, or of any municipality,
and any person, or public or private corporation
having by law the right to condemn private property
for public use, shall exercise that right in the manner
hereinafter prescribed." (Act No. 190 of the Philippine
Commission, sec. 241.)
"The complaint in condemnation proceedings shall
state with certainty the right of condemnation, and
describe the property sought to be condemned,
showing the interest of each defendant separately."
(Act No. 190, sec. 242.)
"In addition to the method of procedure authorized for
the exercise of the power of eminent domain by
sections two hundred and forty-one to two hundred
and fifty-three, inclusive, of Act Numbered One
hundred and ninety, entitled 'An Act providing a Code
of Procedure in civil actions and special proceedings
in the Philippine Islands,' the procedure in this Act
provided may be adopted whenever a railroad
corporation seeks to appropriate land for the
construction, extension, or operation of its railroad
line." (Act No. 1258, sec. 1.)
"Whenever a railroad corporation is authorized by its
charter, or by general law, to exercise the power of
eminent domain in the city of Manila or in any
province, and has not obtained by agreement with the
owners thereof the lands necessary for its purposes
as authorized by law, it may in its complaint, . . . in the
Court of First Instance of the province where the land
is situated, Join as defendants all persons owning or
claiming to own, or occupying, any of the lands
sought to be condemned, or any interest therein,
within the city or province, respectively, showing, so
far as practicable, the interest of each defendant and
stating with certainty the right of condemnation, and
describing the property sought to be condemned.
Process requiring the defendants to appear in answer
to the complaint shall be served upon all occupants of
the land sought to be condemned, and upon the
owners and all persons claiming interest therein, so
far as known. If the title to any lands sought to be
condemned appears to be in the Insular Government,
although the lands are occupied by private
individuals, or if it is uncertain whether the title is in
the Insular Government or in private individuals, or if
the title is otherwise so obscure or doubtful that the
company can not with accuracy or certainty specify
who are the real owners, averment may be made by
the company in its complaint to that effect. Process

shall be served upon residents and nonresidents in

the same manner as provided therefor in Act
Numbered One hundred and ninety, . . .." (Act No.
1258, sec. 3.)
". . . The provisions . . . as to persons not notified of
the condemnation proceedings, shall be such as are
defined in sections 248 to 253, inclusive, of Act No.
190." (Act No. 1258, sec. 5, last five lines )
"Nothing herein contained shall be construed so as to
injure, prejudice, defeat, or destroy the estate, right,
or title of any person claiming land or any part thereof,
or any interest therein, who was not made a party
defendant to the condemnation proceeding and did
not have actual or constructive notice of the
proceeding in such manner as the law requires." (Act
No. 190, sec. 253.)
The record wholly fails to disclose that process
requiring the plaintiff to appear and answer the
complaint filed in the condemnation proceedings was
served upon her, or upon any of the occupants of the
land; and this, notwithstanding the fact, as found by
the trial court and practically conceded by counsel for
defendant, that she was the known owner of the land
in question.
The statute authorizing the defendant company to
exercise the power of eminent domain, being in
derogation of general right and conferring upon it
exceptional privileges with regard to the property of
others of which it may have need, should be
construed strictly in favor of landowners whose
property is affected by its terms. Hence before any
right to take possession of land under this statute
could have been lawfully exercised by the company,
the provisions of the statute must have been "fully and
fairly" complied with. Manifestly, the seizure and
occupation of property without first serving process on
the owners or occupants is so gross a violation of one
of the most essential conditions precedent prescribed
by the statute, that no claim by the company that it is
acting or desires to act under the authority of its
charter in taking possession of this property can be
heard by way of defense to an action for damages for
the unlawful trespass. The right to take such land,
over the objection of the owner, and to have a fair
valuation placed thereon in special proceedings
prescribed by law for that purpose is made to depend
upon the compliance by the company with certain
conditions precedent, and of course no rights can or
do arise unless such conditions are fully and fairly
complied with. Not only did the defendant company

fail to prove in the lower court that it had served

process on the owner and the occupants of the land,
but it did not even claim to have done so when its
counsel undertook to introduce in evidence the record
in the pending condemnation proceedings. And,
indeed, no such claim has at any time been made on
its behalf.
Plaintiff's evidence as to the value of the land
appropriated is not wholly satisfactory but in the
absence of any evidence whatever, worthy of the
name, to put in doubt the testimony of her witnesses,
we do not think that we would be justified in reversing
the findings of fact by the trial judge who arrived at his
conclusions after seeing and hearing these witnesses
testify.
Counsel for defendant company assigns among other
errors the action of the trial judge in excluding certain
testimony and insists that the exclusion of these
witnesses justifies and requires the reversal of the
judgment of the court below and the return of the
record for a new trial. But while we agree with counsel
that the trial judge erred in excluding certain evidence
offered by the defendant, we are satisfied upon a
review of the whole record that the result would not
have been otherwise had this evidence been
admitted, and we do not think that a reversal should
be granted for error of this character.
We think that the evidence of defendant, including the
map, whereby counsel undertook to show the exact
amount of the land of the plaintiff occupied by the
roadbed of the railroad; as also the evidence offered
touching the assessed valuation of the land of the
plaintiff should have been admitted for what it was
worth. But we do not think that had this evidence
been admitted, and granting that it would have been
to the effect claimed for it by counsel for the
defendant, that the result would have been different.
The conclusion of the trial judge from the evidence
before him was that the entire tract mentioned in his
judgment had been rendered substantially worthless
to the plaintiff by the unauthorized occupation of a
part of it by the defendant company, and we do not
think that the evidence on which he based this
conclusion would be affected by proof that only a part
of the tract was actually occupied and retained in
possession. The theory on which the trial judge
correctly proceeded was that defendant company
having unlawfully taken possession of a part of the
tract of land in question, and- by its operations
thereon rendered the whole tract worthless to the
plaintiff, plaintiff is entitled to abandon the entire tract,
and recover damages for its full value. So also proof

of the assessed valuation of the land in question,

while proper and competent evidence in a case of this
character, is at best of but very little value in a judicial
inquiry as to its actual market value. We do not
believe that the weight to be given the practically
undisputed testimony of the witnesses for the plaintiff
as to the actual market value of the land in question
would have been materially affected by proof that this
land was assessed at a valuation greatly less than
that placed upon it by the trial judge.
The judgment appealed from should be and is hereby
affirmed with the costs of this instance against the
appellant.
Torres, Mapa, Johnson, and Moreland, JJ., concur.

THIRD DIVISION
[G.R. No. 125218. January 23, 1998.]
FILSTREAM INTERNATIONAL INCORPORATED,
petitioner, vs. COURT OF APPEALS, JUDGE FELIPE
S. TONGCO and THE CITY OF MANILA,
respondents.

appeal, the Court of Appeals likewise finds for the

condemnation of the property and further issuing a
TRO and Writ of Preliminary Injunction against the
order issued by the trial court for the imposition of its
ruling in the ejectment case which has became final
and executory.
Petitioner Filstream went to the Supreme Court
objecting to the issuance of the TRO and the
preliminary injunction enjoining the execution of the
writ of demolition issued in the ejectment suit.

[G.R. No. 128077. January 23, 1998.]

FILSTREAM INTERNATIONAL INCORPORATED,
petitioner, vs. COURT OF APPEALS, ORLANDO
MALIT, ANTONIO CAGUIAT, ALICIA CABRERA,
ARMANDO
LACHICA,
JACINTO
CAGUIAT,
GLORIA
ANTONIO,
ELIZALDE
NAVARRA,
DOLORES FUENTES, SUSANA ROY, ANTONIO
IBAEZ,
BENIGNO
BASILIO,
LUCERIA
DEMATULAC, FLORENCIA GOMEZ, LAZARO
GOMEZ, JOSE GOMEZ, VENANCIO MANALOTO,
CRISTINO UMALI, DEMETRIA GATUS, PRISCILLA
MALONG, DOMINGO AGUILA, RAMON SAN
AGUSTIN, JULIAN FERRER, JR., FRANCISCO
GALANG, FLORENTINO MALIWAT, SEVERINA
VILLAR, TRINIDAD NAGUIT, JOSE NAGUIT,
FORTUNATO AGUSTIN CABRERA, GAUDENCIO
INTAL, DANILO DAVID, ENRIQUE DAVID, VICENTE
DE GUZMAN, POLICARPIO LUMBA, BELEN
PALMA, ELEN SOMVILLO, LEONARDO MANICAD,
OPRENG MICLAT, BENITA MATA, GREGORIO
LOPEZ, MARCELINA SAPNO, JESUS MERCADO
and CALIXTO GOMEZ, respondents.
Siruelo, Muyco & Associates Law Office for petitioner
in G.R. Nos. 125218 & 128077.
Lucky M. Damasen for private respondent in G.R. No.
128077.
SYNOPSIS
Petitioner, Filstream International, Inc., obtained a
favorable judgment in an ejectment case it filed before
the Metropolitan Trial Court of Manila. Said judgment
became final and executory. However, during the
pendency of the ejectment proceedings, the City of
Manila passed an ordinance authorizing Mayor Lim to
expropriate the subject properties of petitioner then
occupied by private respondents. Pursuant to the
complaint for eminent domain filed by the City of
Manila, the trial court issued a Writ of Possession. On

There is no dispute as to the existence of a final and

executory judgment in favor of petitioner Filstream
ordering the ejectment of private respondents from
the properties subject of the dispute. However, it must
also be conceded that the City of Manila has an
undeniable right to exercise its power of eminent
domain within its jurisdiction. More specifically, the
City of Manila has the power to expropriate private
property in the pursuit of its urban land reform and
housing program as explicitly laid out in the Revised
Charter of the City of Manila.
In fact, the City of Manila's right to exercise these
prerogatives notwithstanding the existence of a final
and executory judgment over the property to be
expropriated has been upheld by this Court in the
case of Philippine Columbian Association vs. Panis.
Nevertheless, despite the existence of a serious
dilemma, local government units are not given an
unbridled authority when exercising their power of
eminent domain in pursuit of solutions to these
problems. The basic rules shall have to be followed.
The exercise by local government units of the power
of eminent domain is not without limitations.
Private lands rank last in the order of priority for
purposes of socialized housing. In the same vein,
expropriation proceedings are to be resorted to only
when the other modes of acquisition have been
exhausted. Compliance with these conditions must be
deemed mandatory because these are the only
safeguards in securing the right of owners of private
property to due process when their property is
expropriated for public use.
Petitioner Filstream's properties were expropriated
and ordered condemned in favor of the City of Manila
sans any showing that resort to the acquisition of
other lands listed under Sec. 9 of RA 7279 have
proved futile. Evidently, there was a violation of

petitioner Filstream's right to due process which must

accordingly be rectified. EDaHAT
SYLLABUS
1.
ADMINISTRATIVE
LAW;
1991
LOCAL
GOVERNMENT CODE; LOCAL GOVERNMENT;
CITY OF MANILA HAS THE RIGHT TO EXERCISE
ITS POWER OF EMINENT DOMAIN. The City of
Manila has an undeniable right to exercise its power
of eminent domain within its jurisdiction. The right to
expropriate private property for public use is expressly
granted to it under Section 19 of the 1991 Local
Government Code. More specifically, the City of
Manila has the power to expropriate private property
in the pursuit of its urban land reform and housing
program as explicitly laid out in the Revised Charter of
the City of Manila (R A. No. 409). In fact, the City of
Manila's right to exercise these prerogatives
notwithstanding the existence of a final and executory
judgment over the property to be expropriated has
been upheld by this Court in the case of Philippine
Columbian Association vs. Panis, G.R. No. 106528,
December 21, 1993.
2. ID.; ID.; ID.; EXERCISE OF POWER OF EMINENT
DOMAIN IS SUBJECT TO LIMITATIONS. Local
government units are not given an unbridled authority
when exercising their power of eminent domain in
pursuit of solutions to these problems. The basic rules
still have to be followed, which are as follows: "no
person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be
denied the equal protection of the laws (Art. 3, Sec. 1,
1987 Constitution); private property shall not be taken
for public use without just compensation (Art. 3,
Section 9, 1987 Constitution)." Thus, the exercise by
local government units of the power of eminent
domain is not without limitations. Even Section 19 of
the 1991 Local Government Code is very explicit that
it must comply with the provisions of the Constitution
and pertinent laws. The governing law that deals with
the subject of expropriation for purposes of urban land
reform and housing is Sections 9 and 10, Republic
Act 7279 (Urban Development and Housing Act of
1992). Very clear from the abovequoted provisions
are the limitations with respect to the order of priority
in acquiring private lands and in resorting to
expropriation proceedings as a means to acquire the
same. Private lands rank last in the order of priority
for purposes of socialized housing. In the same vein,
expropriation proceedings are to be resorted to only

when the other modes of acquisition have been

exhausted. Compliance with these conditions must be
deemed mandatory because these are the only
safeguards in securing the right of owners of private
property to due process when their property is
expropriated for public use.
3. ID.; ID.; ID.; ID.; VIOLATION OF RIGHT TO DUE
PROCESS MANIFEST IN CASE AT BAR. We have
carefully scrutinized the records of this case and
found nothing that would indicate that respondent City
of Manila complied with Sec. 9 and Sec. 10 of R.A.
7279. Petitioner Filstream's properties were
expropriated and ordered condemned in favor of the
City of Manila sans any showing that resort to the
acquisition of other lands listed under Sec. 9 of R.A.
7279 have proved futile. Evidently, there was a
violation of petitioner Filstream's right to due process
which must accordingly be rectified. Indeed, it must
be emphasized that the State has a paramount
interest in exercising its power of eminent domain for
the general good considering that the right of the
State to expropriate private property as long as it is
for public use always takes precedence over the
interest of private property owners. However we must
not lose sight of the fact that the individual rights
affected by the exercise of such right are also entitled
to protection, bearing in mind that the exercise of this
superior right cannot override the guarantee of due
process extended by the law to owners of the
property to be expropriated. In this regard, vigilance
over compliance with the due process requirements is
in order.
DECISION
FRANCISCO, J p:
In resolving the instant petitions, the Court is tasked
to strike a balance between the contending interests
when the state exercises its power of eminent
domain. On one side, we have the owners of the
property to be expropriated who must be duly
compensated for the loss of their property, while on
the other is the State which must take the property for
public use. prLL
Petitioner, Filstream International, Inc., is the
registered owner of the properties subject of this
dispute consisting of adjacent parcels of land situated
in Antonio Rivera Street, Tondo II, Manila, with a total
area of 3,571.10 square meters and covered by T.C.T.

Nos. 203937, 203936, 169198, 169199, 169200 and

169202 of the Register of Deeds of Manila.
On January 7, 1993, petitioner filed an ejectment suit
before the Metropolitan Trial Court of Manila (Branch
15) docketed as Civil Case No. 140817-CV against
the occupants of the above mentioned parcels of land
(herein private respondents in G. R. No. 128077) on
the grounds of termination of the lease contract and
non-payment of rentals. Judgment was rendered by
the MTC on September 14, 1993 ordering private
respondents to vacate the premises and pay back
rentals to petitioner. 1
Not satisfied, private respondents appealed the
decision to the Regional Trial Court of Manila, Branch
4 (Civil Case No. 93-68130) which in turn affirmed the
decision of the MTC in its decision dated February 22,
1994. Still not content, private respondents proceeded
to the Court of Appeals via a petition for review (CAG. R. SP No. 33714). The result however remained
the same as the CA affirmed the decision of the RTC
in its decision dated August 25, 1994. 2 Thereafter, no
further action was taken by the private respondents,
as a result of which the decision in the ejectment suit
became final and executory.
However, it appeared that during the pendency of the
ejectment proceedings private respondents filed on
May 25, 1993, a complaint for Annulment of Deed of
Exchange against petitioner Filstream which was
docketed in Civil Case No. 93-66059 before the RTC
of Manila, Branch 43. It was at this stage that
respondent City of Manila came into the picture when
the city government approved Ordinance No. 7813 3
on November 5, 1993, authorizing Mayor Alfredo S.
Lim to initiate the acquisition by negotiation,
expropriation, purchase, or other legal means certain
parcels of land registered under T.C.T. Nos. 169193,
169198, 169190, 169200, 169202 and 169192 of the
Registry of Deeds of Manila which formed part of the
properties of petitioner then occupied by private
respondents. Subsequently, the City of Manila
approved Ordinance No. 7855 4 declaring the
expropriation of certain parcels of land situated along
Antonio Rivera and Fernando Ma. Guerrero streets in
Tondo, Manila which were owned by Mr. Enrique
Quijano Gutierrez, petitioner's predecessor-in-interest.
The said properties were to be sold and distributed to
qualified tenants of the area pursuant to the Land Use
Development Program of the City of Manila.

On May 23, 1994, respondent City of Manila filed a

complaint for eminent domain (Civil Case No. 9470560) before the RTC of Manila, Branch 42, 5
seeking to expropriate the aforecited parcels of land
owned by petitioner Filstream which are situated at
Antonio Rivera Street, Tondo II, Manila. 6
Pursuant to the complaint filed by respondent City of
Manila, the trial court issued a Writ of Possession 7 in
favor of the former which ordered the transfer of
possession over the disputed premises to the City of
Manila.
At this juncture, petitioner Filstream filed a motion to
dismiss the complaint for eminent domain as well as a
motion to quash the writ of possession. The motion to
dismiss was premised on the following grounds: no
valid cause of action; the petition does not satisfy the
requirements of public use and a mere clandestine
maneuver to circumvent the writ of execution issued
by the RTC of Manila, Branch 4 in the ejectment suit;
violation of the constitutional guarantee against nonimpairment of obligations and contracts; price offered
was too low hence violative of the just compensation
provision of the constitution and the said amount is
without the certification of the City Treasurer for
availability of funds. 8 With respect to the motion to
quash the writ of possession, petitioner raised the
following objections: failure to comply with Section 2
of Rule 67 of the Rules of Court, Ordinance No. 7813
is a void enactment for it was approved without a
public hearing and violative of the constitutional
guarantee against impairment of obligations and
contracts; the price is too low and unconscionable
violating the just compensation provision of the
constitution, and the said writ is tainted with infirmity
considering the absence of a certification from the
City of Manila that there is an immediately available
fund for the subject expropriation. 9
Respondent City of Manila filed its opposition 10 to
petitioner Filstream's two motions and to which
petitioner accordingly filed a reply. 11 On September
30, 1994, the RTC of Manila, Branch 42, issued an
order denying petitioner Filstream's motion to dismiss
and the motion to quash the Writ of Possession and
declared as follows:

"IN FINE, the defendant's motion to dismiss and

motion to quash writ of possession are both without
merit and are hereby DENIED and the subject parcels
of lands covered by TCT Nos. 203937, 203936,
169198, 169199, 169200 and 169202 (of the Register
of Deeds of Manila) located at Antonio Rivera Street,
Tondo II, Manila with a total area of 3,571.10 square
meters are hereby declared CONDEMNED in favor of
the City of Manila for distribution and resale to all poor
and landless qualified residents/tenants in the said
area under the city's 'land-for-the landless' program
upon payment of just compensation which is yet to be
determined by this Court." 12
Petitioner filed a motion for reconsideration 13 as well
as a supplemental motion for reconsideration 14
seeking the reversal of the above-quoted order but
the same were denied. 15 Still, petitioner filed a
subsequent motion to be allowed to file a second
motion for reconsideration but it was also denied.
Aggrieved, petitioner filed on March 31, 1996, a
Petition for Certiorari with the Court of Appeals (CAG.R. SP No. 36904) seeking to set aside the
September 30, 1994 order of the RTC of Manila,
Branch 42. However, on March 18, 1996, respondent
CA issued a resolution dismissing the petition in this
wise:
"It appearing that the above-entitled petition is
insufficient in form and substance it does not
comply with Section 2(a), Rule 6 of the Revised
Internal Rules of the Court of Appeals which requires
that the 'petition shall be . . . accompanied by . . .
other pertinent documents and papers,' aside from the
fact that copies of the pleadings attached to the
petition are blurred and unreadable this Court
resolved to summarily DISMISS the same (petition).
16
Petitioner filed a motion for reconsideration and
attached clearer copies of the pertinent documents
and papers pursuant to Section 2(a), Rule 6 of the
Revised Internal Rules of the Court of Appeals. But on
May 20, 1996 respondent CA issued a resolution
denying the motion as petitioner failed to submit
clearer and readable copies of the pleadings. 17 This
prompted petitioner to proceed to this Court giving
rise to the instant petition for review on certiorari
under Rule 45 and docketed herein as G.R. No.
125218, assailing the dismissal of its petition by the
CA in its resolution dated March 18, 1996 as well as

that of its motion for reconsideration in the resolution

dated May 20, 1996.
Meanwhile, owing to the finality of the decision in the
ejectment suit (Civil Case No. 140817-CV), the MTC
of Manila, Branch 15, upon motion of petitioner
Filstream, issued a Writ of Execution as well as a
Notice to Vacate the disputed premises. 18 Private
respondents filed a Motion to Recall/Quash the Writ of
Execution and Notice to Vacate 19 alleging the
existence of a supervening event in that the
properties subject of the dispute have already been
ordered condemned in an expropriation proceeding in
favor of the City of Manila for the benefit of the
qualified occupants thereof, thus execution shall be
stayed. Petitioner opposed the motion, reiterating that
the decision in the ejectment case is already final and
executory and disputed private respondents' right to
interpose the expropriation proceedings as a defense
because the latter were not parties to the same.
For its part, the City of Manila filed on March 13,
1996, a motion for intervention with prayer to
stay/quash the writ of execution on the ground that it
is the present possessor of the property subject of
execution.
In its order dated March 14, 1996, the MTC of Manila,
Branch 14, denied private respondents' motion as it
found the allegations therein bereft of merit and
upheld the issuance of the Writ of Execution and
Notice to Vacate in petitioner's favor. 20
Subsequently, the trial court also denied the motion
filed by the City of Manila.
On April 22, 1996, the trial court issued an order
commanding the demolition of the structure erected
on the disputed premises. To avert the demolition,
private respondents filed before the RTC of Manila,
Branch 14, a Petition for Certiorari and Prohibition
with prayer for the issuance of a temporary restraining
order and preliminary injunction (docketed as Civil
Case No. 96-78098). On April 29, 1996, the RTC of
Manila, Branch 33, issued a TRO enjoining the
execution of the writ issued in Civil Case No. 140817CV by the MTC of Manila, Branch 14. 21
Subsequently the RTC issued a writ of preliminary
injunction on May 14, 1996. 22
On May 15, 1996, the City of Manila filed its Petition
for Certiorari and Prohibition with prayer for the
issuance of a temporary restraining order and

preliminary injunction which was raffled to Branch 23

of the RTC of Manila (docketed as Civil Case No. 9678382), seeking the reversal of the orders issued by
the MTC of Manila, Branch 14, which denied its
motion to intervene and quash the writ of execution in
Civil Case No. 140817-CV.
Thereafter, upon motion filed by the City of Manila, an
order was issued by the RTC of Manila, Branch 10,
ordering the consolidation of Civil Case No. 96-78382
with Civil Case No. 96-78098 pending before Branch
14 of the RTC of Manila. 23 On May 21, 1996, the
RTC of Manila, Branch 14, issued an injunction in
Civil Case No. 96-78098 enjoining the implementation
of the writ of execution until further orders from the
court. 24 Petitioner Filstream filed a Motion to
Dissolve the Writ of Preliminary Injunction and to be
allowed to post a counter-bond but the trial court
denied the same. Filstream then filed a motion for
reconsideration from the order of denial but pending
resolution of this motion, it filed a motion for voluntary
inhibition of the presiding judge of the RTC of Manila,
Branch 14. The motion for inhibition was granted 25
and as a result, the consolidated cases (Civil Case
No. 96-78382 and 96-78098) were re-raffled to the
RTC of Manila, Branch 33. cdasia
During the proceedings before the RTC of Manila,
Branch 33, petitioner Filstream moved for the
dismissal of the consolidated cases (Civil Case No.
96-78382 and No. 96-78098) for violation of Supreme
Court Circular No. 04-94 (forum shopping) because
the same parties, causes of action and subject matter
involved therein have already been disposed of in the
decision in the ejectment case (Civil Case No.
140817) which has already become final and
executory prior to the filing of these consolidated
cases.
On December 9, 1996, an order was issued by the
RTC of Manila, Branch 33, ordering the dismissal of
Civil Case Nos. 96-78382 and 96-78098 for violation
of Supreme Court Circular No. 04-94. 26 Immediately
thereafter, petitioner Filstream filed an Ex-parte
Motion for Issuance of an Alias Writ of Demolition and
Ejectment and a supplemental motion to the same
dated January 10 and 13, 1997, respectively, 27
before the MTC of Manila, Branch 15, which
promulgated the decision in the ejectment suit (Civil
Case No. 140817-CV). On January 23, 1997, the
court granted the motion and issued the
corresponding writ of demolition.

As a consequence of the dismissal of the

consolidated cases, herein private respondents filed a
Petition for Certiorari and Prohibition with prayer for
the issuance of a temporary restraining order and
preliminary injunction before the Court of Appeals
(docketed as CA-G.R. SP No. 43101) 28 assailing the
above-mentioned order of dismissal by the RTC of
Manila, Branch 33, as having been issued with grave
abuse of discretion tantamount to lack or in excess of
jurisdiction.
In a resolution dated January 28, 1997, the Court of
Appeals granted herein private respondents prayer for
the issuance of a temporary restraining order and
directed the MTC of Manila, Branch 15, to desist from
implementing the order of demolition dated January
23, 1997, unless otherwise directed. 29

At the conclusion of the hearing for the issuance of a

writ of preliminary injunction, the Court of Appeals, in
its resolution dated February 18, 1997, found merit in
private respondents' allegations in support of their
application of the issuance of the writ and granted the
same, to wit:
"Finding that the enforcement or implementation of
the writ of execution and notice to vacate issued in
Civil Case No. 140817-CV, the ejectment case before
respondent Judge Jiro, during the pendency of the
instant petition, would probably be in violation of
petitioners' right, and would tend to render the
judgment in the instant case ineffectual, and probably
work injustice to the petitioners, the application for the
issuance of a writ of preliminary injunction is hereby
GRANTED.
"WHEREFORE, upon the filing of a bond in the
amount of P150,000.00, let a writ of preliminary
injunction be issued enjoining respondents, their
employees, agents, representatives and anyone
acting in their behalf from enforcing or executing the
writ of execution and notice to vacate issued in Civil
Case No. 140817-CV of the court of respondent
Judge Jiro, or otherwise disturbing the status quo,
until further orders of this Court." 30
In turn, petitioner Filstream is now before this Court
via a Petition for Certiorari under Rule 65 (G.R. No.

128077), seeking to nullify the Resolutions of the

Court of Appeals dated January 28, 1997 and
February 18, 1997 which granted herein private
respondents' prayer for a TRO and Writ of Preliminary
Injunction, the same being null and void for having
been issued in grave abuse of discretion.

rules, respondent CA should have instead entertained

petitioner Filstream's petition for review on certiorari,
and ordered petitioner to submit the corresponding
pleadings which it deems relevant and replace those
which are unreadable. This leniency could not have
caused any prejudice to the rights of the other parties.

Upon motion filed by petitioner Filstream, in order to

avoid any conflicting decisions on the legal issues
raised in the petitions, the Court ordered that the later
petition, G.R. No. 128077 be consolidated with G.R.
No. 128077 in the resolution of March 5, 1997. 31

With regard to the other petition, G.R. No. 128077,

petitioner Filstream objects to the issuance by
respondent CA of the restraining order and the
preliminary injunction enjoining the execution of the
writ of demolition issued in the ejectment suit (Civil
Case No. 140817-CV) as an incident to private
respondents' pending petition assailing the dismissal
by the RTC of Manila, Branch 33, of the consolidated
petitions for certiorari filed by private respondents and
the City of Manila on the ground of forum shopping.

The issue raised in G.R. No. 125218 is purely a

procedural and technical matter. Petitioner takes
exception to the resolutions of respondent CA dated
March 18, 1996 and May 20, 1996 which ordered the
dismissal of its Petition for Certiorari for noncompliance with Sec. 2(a) of Rule 6 of the Revised
Internal Rules of the Court of Appeals by failing to
attach to its petition other pertinent documents and
papers and for attaching copies of pleadings which
are blurred and unreadable. Petitioner argues that
respondent appellate court seriously erred in giving
more premium to form rather than substance.
We agree with the petitioner. A strict adherence to the
technical and procedural rules in this case would
defeat rather than meet the ends of justice as it would
result in the violation of the substantial rights of
petitioner. At stake in the appeal filed by petitioner
before the CA is the exercise of their property rights
over the disputed premises which have been
expropriated and have in fact been ordered
condemned in favor of the City of Manila. In effect, the
dismissal of their appeal in the expropriation
proceedings based on the aforementioned grounds is
tantamount to a deprivation of property without due
process of law as it would automatically validate the
expropriation proceedings which the petitioner is still
disputing. It must be emphasized that where
substantial rights are affected, as in this case, the
stringent application of procedural rules may be
relaxed if only to meet the ends of substantial justice.
In these instances, respondent CA can exercise its
discretion to suspend its internal rules and allow the
parties to present and litigate their causes of action so
that the Court can make an actual and complete
disposition of the issues presented in the case.
Rather than simply dismissing the petition summarily
for non-compliance with respondent court's internal

The propriety of the issuance of the restraining order

and the writ of preliminary injunction is but a mere
incident to the actual controversy which is rooted in
the assertion of the conflicting rights of the parties in
this case over the disputed premises. In order to
determine whether private respondents are entitled to
the injunctive reliefs granted by respondent CA, we
deemed it proper to extract the source of discord.
Petitioner Filstream anchors its claim by virtue of its
ownership over the properties and the existence of a
final and executory judgment against private
respondents ordering the latter's ejectment from the
premises (Civil Case No. 140817-CV).
Private respondents' claim on the other hand hinges
on an alleged supervening event which has rendered
the enforcement of petitioner's rights moot, that is, the
expropriation proceedings (Civil Case No. 94-70560)
undertaken by the City of Manila over the disputed
premises for the benefit of herein private respondents.
For its part, the City of Manila is merely exercising its
power of eminent domain within its jurisdiction by
expropriating petitioner's properties for public use.
There is no dispute as to the existence of a final and
executory judgment in favor of petitioner Filstream
ordering the ejectment of private respondents from
the properties subject of this dispute. The judgment in
the ejectment suit became final and executory after
private respondents failed to interpose any appeal
from the adverse decision of the Court of Appeals
dated August 25, 1994 in CA-G.R. SP No. 33714.
Thus, petitioner has every right to assert the

execution of this decision as it had already become

final and executory.
However, it must also be conceded that the City of
Manila has an undeniable right to exercise its power
of eminent domain within its jurisdiction. The right to
expropriate private property for public use is expressly
granted to it under Section 19 of the 1991 Local
Government Code, to wit:
"SEC. 19. Eminent Domain. A local government
unit may, through its chief executive and acting
pursuant to an ordinance, exercise the power of
eminent domain for public use, or purpose, or welfare
for the benefit of the poor and the landless, upon
payment of just compensation, pursuant to the
provisions of the Constitution and pertinent laws:
Provided, however, That the power of eminent domain
may not be exercised unless a valid and definite offer
has been previously made to the owner, and such
offer was not accepted; Provided, further, That the
local government unit may immediately take
possession of the property upon the filing of the
expropriation proceedings and upon making a deposit
with the proper court of at least fifteen (15%) of the
fair market value of the property based on the current
tax declaration of the property to be expropriated:
Provided, finally, That, the amount to be paid for the
expropriated property shall be determined by the
proper court, based on the fair market value at the
time of the taking of the property." (Emphasis
supplied)
More specifically, the City of Manila has the power to
expropriate private property in the pursuit of its urban
land reform and housing program as explicitly laid out
in the Revised Charter of the City of Manila (R.A. No.
409) as follows:
"General powers. The city may have a common
seal and alter the same at pleasure, and may take,
purchase, receive, hold, lease, convey, and dispose
of real and personal property for the general interest
of the city, condemn private property for public use,
contract and be contracted with, sue and be sued,
and prosecute and defend to final judgment and
execution, and exercise all the powers hereinafter
conferred." (R.A. 409, Sec. 3; Emphasis supplied).
xxx xxx xxx

"Sec. 100. The City of Manila is authorized to acquire

private lands in the city and to subdivide the same
into home lots for sale on easy terms to city residents,
giving first priority to the bona fide tenants or
occupants of said lands, and second priority to
laborers and low-salaried employees. For the purpose
of this section, the city may raise the necessary funds
by appropriations of general funds, by securing loans
or by issuing bonds, and, if necessary, may acquire
the lands through expropriation proceedings in
accordance with law, with the approval of the
President . . .". (Emphasis supplied).
In fact, the City of Manila's right to exercise these
prerogatives notwithstanding the existence of a final
and executory judgment aver the property to be
expropriated has been upheld by this Court in the
case of Philippine Columbian Association vs. Panis,
G.R. No. 106528, December 21, 1993. 32 Relying on
the aforementioned provisions of the Revised Charter
of the City of Manila, the Court declared that:
"The City of Manila, acting through its legislative
branch, has the express power to acquire private
lands in the city and subdivide these lands into home
lots for sale to bona fide tenants or occupants thereof,
and to laborers and low-salaried employees of the
city. llcd
That only a few could actually benefit from the
expropriation of the property does not diminish its
public use character. It is simply not possible to
provide all at once land and shelter for all who need
them (Sumulong v. Guerrero, 154 SCRA 461 [1987]).
Corollary to the expanded notion of public use,
expropriation is not anymore confined to vast tracts of
land and landed estates (Province of Camarines Sur
v. Court of Appeals, G. R. No. 103125, May 17, 1993;
J. M. Tuason and Co., Inc. v. Land Tenure
Administration, 31 SCRA 413 [1970]). It is therefore of
no moment that the land sought to be expropriated in
this case is less than half a hectare only (Pulido v.
Court of Appeals, 122 SCRA 63 [1983]).

Through the years, the public use requirement in

eminent domain has evolved into a flexible concept,
influenced by changing conditions (Sumulong v.
Guerrero, supra; Manotok v. National Housing

Authority, 150 SCRA 89 [1987]; Heirs of Juancho

Ardona v. Reyes, 125 SCRA 220 [1983]). Public use
now includes the broader notion of indirect public
benefit or advantage, including in particular, urban
land reform and housing." 33
We take judicial notice of the fact that urban land
reform has become a paramount task in view of the
acute shortage of decent housing in urban areas
particularly in Metro Manila. Nevertheless, despite the
existence of a serious dilemma, local government
units are not given an unbridled authority when
exercising their power of eminent domain in pursuit of
solutions to these problems. The basic rules still have
to be followed, which are as follows: "no person shall
be deprived of life, liberty, or property without due
process of law, nor shall any person be denied the
equal protection of the laws (Art. 3, Sec. 1, 1987
Constitution); private property shall not be taken for
public use without just compensation (Art. 3, Section
9, 1987 Constitution)". Thus, the exercise by local
government units of the power of eminent domain is
not without limitations. Even Section 19 of the 1991
Local Government Code is very explicit that it must
comply with the provisions of the Constitution and
pertinent laws, to wit:
"SEC. 19. Eminent Domain. A local government
unit may, through its chief executive and acting
pursuant to an ordinance, exercise the power of
eminent domain for public use, or purpose, or welfare
for the benefit of the poor and the landless, upon
payment of just compensation, pursuant to the
provisions of the Constitution and pertinent laws: . . .
(Emphasis supplied).
The governing law that deals with the subject of
expropriation for purposes of urban land reform and
housing is Republic Act No. 7279 (Urban
Development and Housing Act of 1992) and Sections
9 and 10 of which specifically provide as follows:
"Sec. 9. Priorities in the acquisition of Land. Lands
for socialized housing shall be acquired in the
following order:
(a) Those owned by the Government or any of its subdivisions, instrumentalities, or agencies, including
government-owned or -controlled corporations and
their subsidiaries;
(b) Alienable lands of the public domain;

(c) Unregistered or abandoned and idle lands;

(d) Those within the declared Areas for Priority
Development, Zonal Improvement sites, and Slum
Improvement and Resettlement Program sites which
have not yet been acquired;
(e) Bagong Lipunan Improvement of Sites and
Services or BLISS sites which have not yet been
acquired; and
(f) Privately-owned lands.
Where on-site development is found more practicable
and advantageous to the beneficiaries, the priorities
mentioned in this section shall not apply. The local
government units shall give budgetary priority to onsite development of government lands.
"Sec. 10. Modes of Land Acquisition. The modes of
acquiring lands for purposes of this Act shall include,
among others, community mortgage, land swapping,
land assembly or consolidation, land banking,
donation to the Government, joint-venture agreement,
negotiated purchase, and expropriation: Provided,
however, That expropriation shall be resorted to only
when other modes of acquisition have been
exhausted: Provided further, That where expropriation
is resorted to, parcels of land owned by small property
owners shall be exempted for purposes of this Act:
Provided, finally, That abandoned property, as herein
defined, shall be reverted and escheated to the State
in a proceeding analogous to the procedure laid down
in Rule 91 of the Rules of Court.
For the purpose of socialized housing, governmentowned and foreclosed properties shall be acquired by
the local government units, or by the National
Housing Authority primarily through negotiated
purchase: Provided, That qualified beneficiaries who
are actual occupants of the land shall be given the
right of first refusal." (Emphasis supplied).
Very clear from the abovequoted provisions are the
limitations with respect to the order of priority in
acquiring private lands and in resorting to
expropriation proceedings as a means to acquire the
same. Private lands rank last in the order of priority
for purposes of socialized housing. In the same vein,
expropriation proceedings are to be resorted to only
when the other modes of acquisition have been

exhausted. Compliance with these conditions must be

deemed mandatory because these are the only
safeguards in securing the right of owners of private
property to due process when their property is
expropriated for public use.
Proceeding from the parameters laid out in the above
disquisitions, we now pose the crucial question: Did
the City of Manila comply with the above mentioned
conditions when it expropriated petitioner Filstream's
properties? We have carefully scrutinized the records
of this case and found nothing that would indicate that
respondent City of Manila complied with Sec. 9 and
Sec. 10 of R.A. 7279. Petitioner Filstream's properties
were expropriated and ordered condemned in favor of
the City of Manila sans any showing that resort to the
acquisition of other lands listed under Sec. 9 of RA
7279 have proved futile. Evidently, there was a
violation of petitioner Filstream's right to due process
which must accordingly be rectified.
Indeed, it must be emphasized that the State has a
paramount interest in exercising its power of eminent
domain for the general good considering that the right
of the State to expropriate private property as long as
it is for public use always takes precedence over the
interest of private property owners. However we must
not lose sight of the fact that the individual rights
affected by the exercise of such right are also entitled
to protection, bearing in mind that the exercise of this
superior right cannot override the guarantee of due
process extended by the law to owners of the
property to be expropriated. In this regard, vigilance
over compliance with the due process requirements is
in order.
WHEREFORE, the petitions are hereby GRANTED.
In G.R. 125218, the resolutions of the Court of
Appeals in CA-G.R. SP NO. 36904 dated March 18,
1996 and May 20, 1996 are hereby REVERSED and
SET ASIDE. In G.R. No. 128077, the resolution of the
Court of Appeals in CA-G.R. SP No. 43101 dated
January 28, 1997 and February 18, 1997 are
REVERSED and SET ASIDE.
SO ORDERED.

SECOND DIVISION
[G.R. No. 185091. August 9, 2010.]
2:45 P.M.
REPUBLIC OF THE PHILIPPINES, REPRESENTED
BY THE DEPARTMENT OF EDUCATION DIVISION
OF LIPA CITY (FOR PANINSINGIN PRIMARY
SCHOOL), petitioner, vs. PRIMO MENDOZA and
MARIA LUCERO, respondents.
DECISION
ABAD, J p:
This case is about the propriety of filing an ejectment
suit against the Government for its failure to acquire
ownership of a privately owned property that it had
long used as a school site and to pay just
compensation for it.
The Facts and the Case
Paninsingin Primary School (PPS) is a public school
operated by petitioner Republic of the Philippines (the
Republic) through the Department of Education. PPS
has been using 1,149 square meters of land in Lipa
City, Batangas since 1957 for its school. But the
property, a portion of Lots 1923 and 1925, were
registered in the name of respondents Primo and
Maria Mendoza (the Mendozas) under Transfer
Certificate of Title (TCT) T-11410. 1
On March 27, 1962 the Mendozas caused Lots 1923
and 1925 to be consolidated and subdivided into four
lots, as follows:
Lot 1 292 square meters in favor of Claudia
Dimayuga;
Lot 2 292 square meters in favor of the Mendozas;
Lot 3 543 square meters in favor of Gervacio
Ronquillo; and
Lot 4 1,149 square meters in favor of the City
Government of Lipa. 2
As a result of subdivision, the Register of Deeds
partially cancelled TCT T-11410 and issued new titles
for Lots 1 and 3 in favor of Dimayuga and Ronquillo,
respectively. Lot 2 remained in the name of the

Mendozas but no new title was issued in the name of

the City Government of Lipa for Lot 4. 3 Meantime,
PPS remained in possession of the property. IaESCH
The Republic claimed that, while no title was issued in
the name of the City Government of Lipa, the
Mendozas had relinquished to it their right over the
school lot as evidenced by the consolidation and
subdivision plan. Further, the property had long been
tax-declared in the name of the City Government and
PPS built significant, permanent improvements on the
same. These improvements had also been taxdeclared. 4
The Mendozas claim, on the other hand, that although
PPS sought permission from them to use the property
as a school site, they never relinquished their right to
it. They allowed PPS to occupy the property since
they had no need for it at that time. Thus, it has
remained registered in their name under the original
title, TCT T-11410, which had only been partially
cancelled.
On November 6, 1998 the Mendozas wrote PPS,
demanding that it vacate the disputed property. 5
When PPS declined to do so, on January 12, 1999
the Mendozas filed a complaint with the Municipal
Trial Court in Cities (MTCC) of Lipa City in Civil Case
0002-99 against PPS for unlawful detainer with
application for temporary restraining order and writ of
preliminary injunction. 6
On July 13, 1999 the MTCC rendered a decision,
dismissing the complaint on ground of the Republic's
immunity from suit. 7 The Mendozas appealed to the
Regional Trial Court (RTC) of Lipa City which ruled
that the Republic's consent was not necessary since
the action before the MTCC was not against it. 8
In light of the RTC's decision, the Mendozas filed with
the MTCC a motion to render judgment in the case
before it. 9 The MTCC denied the motion, however,
saying that jurisdiction over the case had passed to
the RTC upon appeal. 10 Later, the RTC remanded
the case back to the MTCC, 11 which then dismissed
the case for insufficiency of evidence. 12
Consequently, the Mendozas once again appealed to
the RTC in Civil Case 2001-0236.
On June 27, 2006 the RTC found in favor of the
Mendozas and ordered PPS to vacate the property. It
held that the Mendozas had the better right of

possession since they were its registered owners.

PPS, on the other hand, could not produce any
document to prove the transfer of ownership of the
land in its favor. 13 PPS moved for reconsideration,
but the RTC denied it.
The Republic, through the Office of the Solicitor
General (OSG), appealed the RTC decision to the
Court of Appeals (CA) in CA-G.R. SP 96604 on the
grounds that: (1) the Mendozas were barred by
laches from recovering possession of the school lot;
(2) sufficient evidence showed that the Mendozas
relinquished ownership of the subject lot to the City
Government of Lipa City for use as school; and (3)
Lot 4, Pcs-5019 has long been declared in the name
of the City Government since 1957 for taxation
purposes. 14
In a decision dated February 26, 2008, the CA
affirmed the RTC decision. 15 Upholding the Torrens
system, it emphasized the indefeasibility of the
Mendozas' registered title and the imprescriptible
nature of their right to eject any person occupying the
property. The CA held that, this being the case, the
Republic's possession of the property through PPS
should be deemed merely a tolerated one that could
not ripen into ownership. DIEcHa
The CA also rejected the Republic's claim of
ownership since it presented no documentary
evidence to prove the transfer of the property in favor
of the government. Moreover, even assuming that the
Mendozas relinquished their right to the property in
1957 in the government's favor, the latter never took
steps to have the title to the property issued in its
name or have its right as owner annotated on the
Mendozas' title. The CA held that, by its omissions,
the Republic may be held in estoppel to claim that the
Mendozas were barred by laches from bringing its
action.
With the denial of its motion for reconsideration, the
Republic has taken recourse to this Court via petition
for review on certiorari under Rule 45.
The Issue Presented
The issue in this case is whether or not the CA erred
in holding that the Mendozas were entitled to evict the
Republic from the subject property that it had used for
a public school.
The Court's Ruling

A decree of registration is conclusive upon all

persons, including the Government of the Republic
and all its branches, whether or not mentioned by
name in the application for registration or its notice.
16 Indeed, title to the land, once registered, is
imprescriptible. 17 No one may acquire it from the
registered owner by adverse, open, and notorious
possession. 18 Thus, to a registered owner under the
Torrens system, the right to recover possession of the
registered property is equally imprescriptible since
possession is a mere consequence of ownership.
Here, the existence and genuineness of the
Mendozas' title over the property has not been
disputed. While the consolidation and subdivision plan
of Lots 1923 and 1925 shows that a 1,149 square
meter lot had been designated to the City
Government, the Republic itself admits that no new
title was issued to it or to any of its subdivisions for
the portion that PPS had been occupying since 1957.
19
That the City Government of Lipa tax-declared the
property and its improvements in its name cannot
defeat the Mendozas' title. This Court has allowed tax
declarations to stand as proof of ownership only in the
absence of a certificate of title. 20 Otherwise, they
have little evidentiary weight as proof of ownership.
21
The CA erred, however, in ordering the eviction of
PPS from the property that it had held as government
school site for more than 50 years. The evidence on
record shows that the Mendozas intended to cede the
property to the City Government of Lipa permanently.
In fact, they allowed the city to declare the property in
its name for tax purposes. And when they sought in
1962 to have the bigger lot subdivided into four, the
Mendozas earmarked Lot 4, containing 1,149 square
meters, for the City Government of Lipa. Under the
circumstances, it may be assumed that the Mendozas
agreed to transfer ownership of the land to the
government, whether to the City Government of Lipa
or to the Republic, way back but never got around to
do so and the Republic itself altogether forgot about it.
Consequently, the Republic should be deemed
entitled to possession pending the Mendozas' formal
transfer of ownership to it upon payment of just
compensation. aHICDc
The Court holds that, where the owner agrees
voluntarily to the taking of his property by the

government for public use, he thereby waives his right

to the institution of a formal expropriation proceeding
covering such property. Further, as the Court also
held in Eusebio v. Luis, 22 the failure for a long time
of the owner to question the lack of expropriation
proceedings covering a property that the government
had taken constitutes a waiver of his right to gain
back possession. The Mendozas' remedy is an action
for the payment of just compensation, not ejectment.
In Republic of the Philippines v. Court of Appeals, 23
the Court affirmed the RTC's power to award just
compensation even in the absence of a proper
expropriation proceeding. It held that the RTC can
determine just compensation based on the evidence
presented before it in an ordinary civil action for
recovery of possession of property or its value and
damages. As to the time when just compensation
should be fixed, it is settled that where property was
taken without the benefit of expropriation proceedings
and its owner filed an action for recovery of
possession
before
the
commencement
of
expropriation proceedings, it is the value of the
property at the time of taking that is controlling. 24
Since the MTCC did not have jurisdiction either to
evict the Republic from the land it had taken for public
use or to hear and adjudicate the Mendozas' right to
just compensation for it, the CA should have ordered
the complaint for unlawful detainer dismissed without
prejudice to their filing a proper action for recovery of
such compensation.
WHEREFORE, the Court partially GRANTS the
petition, REVERSES the February 26, 2008 decision
and the October 20, 2008 resolution of the Court of
Appeals in CA-G.R. 96604, and ORDERS the
dismissal of respondents Primo and Maria Mendoza's
action for eviction before the Municipal Trial Court in
Cities of Lipa City in Civil Case 0002-99 without
prejudice to their filing an action for payment of just
compensation against the Republic of the Philippines
or, when appropriate, against the City of Lipa.
SO ORDERED.
Carpio, Villarama, Jr., * Perez ** and Mendoza, JJ.,
concur.
||| (Republic v. Mendoza, G.R. No. 185091, August
09, 2010)

FIRST DIVISION
[G.R. No. 15870. December 3, 1919.]
VISAYAN REFINING COMPANY, DEAN C.
WORCESTER, and FRED A. LEAS, petitioners, vs.
HON. MANUEL CAMUS, Judge of the Court of
First Instance of the Province of Rizal and HON.
QUINTIN PAREDES, Attorney-General of the
Philippine Islands, respondents.
Kincaid & Perkins for petitioner
Assistant Attorney-General Reyes for respondents.
SYLLABUS
1. EMINENT DOMAIN; PUBLIC USE; MILITARY AND
AVIATION PURPOSES. The use of land by the
Government for military and aviation purposes is a
public use within the meaning of the provisions of law
authorizing the Government of the Philippine Islands
to acquire real estate for public uses by the exercise
of the right of eminent domain.
2. ID.; JUDICIAL PROCEEDINGS; AUTHORITY OF
GOVERNOR-GENERAL TO DIRECT INSTITUTION
OF PROCEEDINGS. Judicial proceedings for the
condemnation of land for public use can be
maintained in the name of the Government of the
Philippine Islands pursuant to the directions of the
Governor-General, without any other special
legislative authority than that expressed in subsection
(h) of section 64 of the Administrative Code, in
relation with section 3 of the Jones Act.
3. ID.; ID.; LEGISLATIVE APPROPRIATION. The
existence of a legislative appropriation especially
destined to pay for land to be acquired by the
Government through the exercise of the power of
eminent domain is not an essential prerequisite to the
institution and maintenance of judicial proceedings for
the expropriation of such land. All that can be required
of the Government is that it should comply with the
conditions laid down by law as and when those
conditions arise.
4. ID.; RIGHT TO EXERCISE POWER; INHERENT IN
SOVEREIGNTY. The power of eminent domain is
inseparable from sovereignty, being essential to the
existence of the State and inherent in government
even in its most primitive forms. No law, therefore, is
ever necessary to confer this right upon sovereignty
or upon any Government exercising sovereign or
quasi-sovereign powers.

5. ID.; ID.; DUE PROCESS OF LAW JUST

COMPENSATION. The power of eminent domain,
with respect to the conditions under which the
property is taken, must be exercised in subjection to
the restraints imposed by constitutional or organic
law, and in these Islands especially with reference to
section 3 of the Jones Act which declares that no law
shall be enacted which shall deprive any person of
property without due process of law and that private
property shall not be taken for public use without just
compensation.
6. ID.; ID.; METHOD OF EXPROPRIATION. If the
Legislature prescribes a method of expropriation
which provides for the payment of just compensation
and such method is so conceived and adapted as to
fulfill the constitutional requisite of due process of law,
any expropriation accomplished in conformity with
that method is valid.
7. ID.; ID.; ID.; PAYMENT OF COMPENSATION.
There is no organic or constitutional provision in force
in these Islands requiring that compensation shall
actually be paid prior to the judgment of
condemnation.
8. ID.; ID.; ID.; PAYMENT OF COMPENSATION AS
PREREQUISITE TO ACQUISITION OF PROPERTY.
The system of expropriation prescribed by laws in
force in these Islands affords absolute assurance that
no piece of land can be finally and irrevocably taken
from an unwilling owner until compensation is paid. In
this connection our courts are directed to make such
final order and judgment as shall secure just
compensation for the land taken, and the right of the
expropriator is finally made absolutely dependent
upon the payment of compensation by him.
9. ID.; ID.; GIVING OF PROVISIONAL POSSESSION
TO GOVERNMENT; OFFICE OF PRELIMINARY
DEPOSIT. Where provisional possession is given
to the Government in an expropriation proceeding,
upon the making of the deposit required by Act No.
2826 of the Philippine Legislature, the owner of the
land is fully protected from any loss that might result
from the temporary occupation of the land by the
Government in the event that the Legislature should
finally fail to appropriate any additional amount
necessary to satisfy the award of the court; for such
preliminary deposit serves the double purpose of
prepayment upon the value of the property, if finally
expropriated, and as an indemnity against damage in
the eventuality that the proceeding should fail of
consummation.
DECISION

STREET, J p:
This is an original petition, directed to the Supreme
Court, containing an alternative prayer for a writ of
certiorari or prohibition, as the facts may warrant, to
stop certain condemnation proceedings instituted by
the Government of the Philippine Islands, and now
pending in the Court of First Instance of the Province
of Rizal. The respondents have interposed what is
called an answer, but which is in legal effect merely a
demurrer, challenging the sufficiency of the
allegations of the petition. The matter having been
submitted upon oral argument, the cause is now
before us for the decision of the question thus
presented.
It appears that upon September 13, 1919, the
Governor-General directed the Attorney-General to
cause condemnation proceedings to be begun for the
purpose of expropriating a tract of land of an area of
about 1,100,463 square meters, commonly known as
the site of Camp Tomas Claudio. Said land is located
in the municipality of Paraaque, Province of Rizal,
and lies along the water front of Manila Bay, a few
miles south of the city of Manila. It is stated in
communication of the Governor-General that the
property in question is desired by the Government of
the Philippine Islands for military and aviation
purposes.
In conformity with the instructions of the GovernorGeneral, condemnation proceedings were begun by
the Attorney-General on September 15, 1919, by filing
a complaint in the name of the Government of the
Philippine Islands in the Court of First Instance of the
Province of Rizal. Numerous persons are named in
the complaint as defendants because of their
supposed ownership of portions of the property
intended to be expropriated. In the list of persons thus
impleaded appear the names of the three petitioners
herein, namely, the Visayan Refining Co., Dean C.
Worcester, and Fred A. Leas, who are severally
owners of different portions of the property in
question.
In the communication of the Governor-General, the
Attorney-General was directed immediately upon filing
the complaint to ask the court to give the Government
the possession of the land to be expropriated, after
the necessary deposit should be made as provided by
law. Accordingly in the complaint itself the AttorneyGeneral prayed the court promptly and provisionally
to fix the sum of P600,000 as the total value of the
property and to put the Government in immediate
possession when said sum should be placed at the

disposition of the court. An order was accordingly

made on September 15, 1919, by the Honorable
Judge Manuel Camus, of the Court of First Instance
of the Province of Rizal, fixing the value of the
property provisionally at the amount stated and
ordering that the plaintiff be placed in possession, it
being made to appear that a certificate of deposit for
the amount stated had been delivered to the
provincial treasurer.
At this stage of the proceedings in the Court of First
Instance the three respondents already mentioned, to
wit, the Visayan Refining Co., Dean C. Worcester, and
Fred A. Leas, interposed a demurrer, questioning the
validity of the proceedings on the ground that there is
no Act of the Philippine Legislature authorizing the
exercise of the power of eminent domain to acquire
land for military or aviation purposes.
Contemporaneously with the filing of their demurrer,
the same parties moved the Court of First Instance to
revoke its order of September 15, giving the plaintiff
provisional possession. This motion is based
substantially on the same ground as the demurrer,
that is, the lack of legislative authority for the
proposed expropriation, but it contains one additional
allegation to the effect that the deposit in court of the
sum of P600,000, had been made without authority of
law. In support of this contention it was shown, by
means of an informal communication from the Insular
Auditor, that the money in question had been taken
from the unexpended balance of the funds
appropriated by Acts Nos. 2784 and 2785 of the
Philippine Legislature for the use of the Militia
Commission. This appropriation showed, upon the
date said deposit of P600,000 was made, an
unexpended balance of P1,144,672.83
On October 3, 1919, the Judge of the Court of First
Instance overruled the demurrer interposed by the
three parties mentioned and denied their motion to
vacate the order granting possession to the
Government. The present proceeding was thereupon
instituted in this Court in the manner and for the
purpose already stated.
General authority to exercise the power of eminent
domain is expressly conferred on the Government of
the Philippine Islands, as now constituted, by section
63 of the Philippine Bill, which reads as follows:
"That the Government of the Philippine Islands is
hereby authorized, subject to the limitation and
conditions prescribed in this Act to acquire, receive,
hold, maintain, and convey title to real and personal
property, and may acquire real estate for public uses

by the exercise of the right of eminent domain." (Act

of Congress of July 1, 1902.)
Section 3 of the Jones Act contains the further
provision that "private property shall not be taken for
public use without just compensation." In addition to
this there is found in the same section the familiar
provision, already expressed in section 5 of the
Philippine Bill, that no law shall be enacted which
shall deprive any person of property without due
process of law, or deny any person the equal
protection of the laws. (Act of Congress of August 29,
1916, sec. 3.)
Section 64 of the Administrative Code of the
Philippine Islands (Act No. 2711) expressly confers on
the Governor-General the power, among others:
"To determine when it is necessary or advantageous
to exercise the right of eminent domain in behalf of
the Government of the Philippine Islands; and to
direct the Attorney-General, where such act is
deemed advisable, to cause the condemnation
proceedings to be begun in the court having proper
jurisdiction."
The procedural provisions relative to the conduct of
expropriation proceedings are contained in sections
241 to 253, inclusive, of the Code of Civil Procedure,
supplemented as they are by various later Acts of the
Legislature. Among the salient features of the scheme
of expropriation thus created are these: (1) If the court
is of the opinion that the right of expropriation exists,
three commissioners are appointed to hear the
parties, view the premises, and assess the damages
to be paid for the condemnation (sec. 243 Code Civ.
Proc.); (2) after hearing the evidence submitted by the
parties and assessing the damages in the manner
prescribed by law (sec. 244), the commissioners
make their report to the court, setting forth all their
proceedings; and it is expressly declared that "none of
their proceedings shall be effectual to bind the
property or the parties until the court shall have
accepted their report and rendered judgment in
accordance with its recommendations" (sec. 245); (3)
the court then acts upon the report, accepting the
same in whole or in part, or rejecting, recommitting, or
setting aside the same, as it sees fit (sec. 246). It is
further declared in section 246 that
"The court . . . may make such final order and
judgment as shall secure to the plaintiff the property
essential to the exercise of his rights under the law,
and to the defendant just compensation for the land
so taken; and the judgment shall require payment of

the sum awarded as provided in the next section (i. e.,

sec. 247) before the plaintiff can enter upon the
ground and appropriate it to the public use."
Sections 247 and 251 of the same Code are of
sufficient importance in this connection to warrant
quotation in their entirety. They are as follows:
"SEC. 247. Rights of Plaintiff After the Judgment.
Upon payment by the plaintiff to the defendant of
compensation as fixed by the judgment, or after
tender to him of the amount so fixed and payment of
the costs, the plaintiff shall have the right to enter in
and upon the land so condemned, to appropriate the
same to the public use defined in the judgment. In
case the defendant and his attorney absent
themselves from the court or decline to receive the
same, payment may be made to the clerk of the court
for him, and such officer shall be responsible on his
bond therefor and shall be compelled to receive it."
"SEC. 251. Final Judgment, Its Record and Effect.
The record of the final judgment in such action shall
state definitely by metes and bounds and adequate
description. the particular land or interest in land
condemned to the public use, and the nature of the
public use. A certified copy of the record of the
judgment shall be recorded in the office of the
registrar of deeds for the province in which the estate
is situated, and its effect shall be to vest in the plaintiff
for the public use stated the land and estate so
described."
The provisions which deal with the giving of
immediate possession when the Government of the
Philippine Islands is the plaintiff are found in Act No.
2826, which is in part as follows:
"SEC. 2. When condemnation proceedings are
instituted by or in favor of the Insular Government . . .
in any competent court of the Philippines, the plaintiff
shall be entitled to enter immediately upon the land
covered by such proceedings, after depositing with
the provincial treasurer the value of said land in cash,
as previously and promptly determined and fixed by
the competent court, which money the provincial
treasurer shall retain subject to the order and final
decision of the court: Provided, however, That the
court may permit that in lieu of cash, there may be
deposited with the provincial treasurer a certificate of
deposit of any depository of the Government of the
Philippine Islands, payable to the provincial treasurer
on sight, for the sum ordered deposited by the court.
The certificate and the sums represented by it shall
be subject to the order and final decision of the court,
and the court shall have authority to place said
plaintiff in possession of the land, upon such deposit

being made, by the proper orders and a mandate, if

necessary.
"SEC. 3. . . . Upon the payment by the plaintiff to the
defendants of the compensation awarded by the
sentence, or after the tender of said sum to the
defendants, and the payment of the costs, or in case
the court orders the price to be paid into court, the
plaintiff shall be entitled to appropriate the land so
condemned to the public use specified in the
sentence. In case payment is made to the court, the
clerk of the same shall be liable on his bond for the
sum so paid and shall be obliged to receive the
same."
In connection with the foregoing provisions found in
laws enacted under the American regime is to be
considered the following provision of the Civil Code:
"ART. 349 No one may be deprived of his property
unless it be by competent authority for some purpose
of proven public utility and after payment of the proper
compensation.
"Unless this requisite has been complied with, it shall
be the duty of the court to protect the owner of such
property in its possession or to restore its possession
to him, as the case may be."
Taken together the laws mentioned supply a very
complete scheme of judicial expropriation, deducing
the authority from its ultimate source in sovereignty,
providing in detail for the manner of its exercise, and
making the right of the expropriator finally dependent
upon payment of the amount awarded by the court.
As has already been indicated the petition before us
proceeds on the idea that the expropriation
proceedings in question cannot be maintained by the
Philippine Government in the absence of a statute
authorizing the exercise of the power of eminent
domain for military and aviation purposes; and while it
is not urged that a special legislative Act must be
passed every time any particular parcel of property is
to be expropriated, it is claimed and this really
amounts to the same thing that the Government
cannot institute and prosecute expropriation
proceedings unless there is already in existence a
legislative appropriation especially destined to pay for
the land to be taken.
We are of the opinion that the contentions of the
petitioners, in whatever way they may be understood
or expressed, are not well founded. There is one point
at least on which all must agree, namely, that if land
can be taken by the Government for a public use at
all, the use intended to be made of the land now in
question, that is, for military and aviation purposes, is
a public use. It is undeniable that a military

establishment is essential to the maintenance of

organized society, and the courts will take judicial
notice of the recent progress of the military and naval
arts resulting from the development of aeronautics.
The question as to the abstract authority of the
Government to maintain expropriation proceedings
upon the initiative of the Governor-General should not
be confused with that which has reference to the
necessity for a legislative appropriation. They really
involve different problems and will be separately
considered.
Upon the first, we are of the opinion that in this
jurisdiction at least expropriation proceedings may be
maintained upon the exclusive initiative of the
Governor-General, without the aid of any special
legislative authority other than that already on the
statute books. Furthermore if the Government
complies with the requirements of law relative to the
making of a deposit in court, provisional possession of
the property may be at once given to it, just as is
permitted in the case of any other person or entity
authorized by law to exercise the power of eminent
domain Special legislative authority for the buying of a
piece of land by the Government is no more
necessary than for buying a paper of pins; and in the
case of a forced taking of property against the will of
the owner, all that can be required of the government
is that it should be able to comply with the conditions
laid down by law as and when those conditions arise.
The contention that the authority to maintain such a
proceeding cannot be delegated by the Legislature to
the Chief Executive, is in our opinion wholly
erroneous and apparently has its basis in a
misconception of fundamentals It is recognized by all
writers that the power of eminent domain is
inseparable from sovereignty being essential to the
existence of the State and inherent in government
even in its most primitive forms. Philosophers and
legists may differ as to the grounds upon which the
exercise of this high power is to be justified, but no
one can question its existence. No law, therefore, is
ever necessary to confer this right upon sovereignty
or upon any government exercising sovereign or
quasi-sovereign powers.
As is well said by the author of the article on Eminent
Domain in the encyclopaedic treatise Ruling Case
Law.
"The power of eminent domain does not depend for
its existence on a specific grant in the constitution. It
is inherent in sovereignty and exists in a sovereign
state without any recognition of it in the constitution.
The provisions found in most of the state constitutions

relating to the taking of property for the public use do

not by implication grant the power to the government
of the state, but limit a power which would otherwise
be without limit." (10, R. C. L., pp. 11, 12.)
In other words, the provisions now generally found in
the modern laws or constitutions of civilized countries
to the effect that private property shall not be taken for
public use without compensation have their origin in
the recognition of a necessity for restraining the
sovereign and protecting the individual. Moreover, as
will be at once apparent, the performance of the
administrative acts necessary to the exercise of the
power of eminent domain in behalf of the state is
lodged by tradition in the Sovereign or other Chief
Executive. Therefore, when the Philippine Legislature
declared in section 64 of the Administrative Code, that
the Governor-General, who exercises supreme
executive power in these Islands (sec. 21, Jones Act),
should be the person to direct the initiation of
expropriation proceedings, it placed the authority
exactly where one would expect to find it, and we can
conceive of no ground upon which the efficacy of the
statute can reasonably be questioned.
We would not of course pretend that, under our
modern system of Government, in which the
Legislature plays so important a role, the executive
department could, without the authority of some
statute, proceed to condemn property for its own
uses; because the traditional prerogatives of the
sovereign are not often recognized nowadays as a
valid source of power, at least in countries organized
under republican forms of government. Nevertheless
it may be observed that the real check which the
modern Legislature exerts over the Executive
Department, in such a matter as this, lies not so much
in the extinction of the prerogative as in the fact that
the hands of the Executive can always be paralyzed
by lack of money something which is ordinarily
supplied only by the Legislature.
At any rate the conclusion is irresistible that where the
Legislature has expressly conferred the authority to
maintain expropriation proceedings upon the Chief
Executive, the right of the latter to proceed therein is
clear. As is said by the author of the article from which
we have already quoted, "Once authority is given to
exercise the power of eminent domain, the matter
ceases to be wholly legislative. The executive
authorities may then decide whether the power will be
invoked and to what extent." (10 R. C. L., p. 14.)

The power of eminent domain, with respect to the

conditions under which the property is taken, must of
course be exercised in subjection to all the restraints
imposed by constitutional or organic law. The two
provisions by which the exercise of this power is
chiefly limited in this jurisdiction are found in the third
section of the Jones Act, already mentioned, which
among other things declares (1) that no law shall be
enacted which shall deprive any person of property
without due process of law and (2) that private
property shall not be taken for public use without just
compensation. The latter of these provisions is
directly aimed at the taking of property under the
exercise of the power of eminent domain; and as this
requirement, in connection with the statutes enacted
to make sure the payment of compensation, usually
affords all the protection that the owner of property
can claim, it results that the due process clause is
rarely invoked by the owner in expropriation
proceedings.
Nevertheless it should be noted that the whole
problem of expropriation is resolvable in its ultimate
analysis into a constitutional question of due process
of law. The specific provisions that just compensation
shall be made is merely in the nature of a superadded
requirement to be taken into account by the
Legislature in prescribing the method of expropriation.
Even were there no organic or constitutional provision
in force requiring compensation to be paid, the
seizure of one's property without payment, even
though intended for a public use, would undoubtedly
be held to be a taking without due process of law and
a denial of the equal protection of the laws.
This point is not merely an academic one, as might
superficially seem. On the contrary it has a practical
bearing on the problem before us, which may be
expressed by saying that, if the Legislature has
prescribed a method of expropriation which provides
for the payment of just compensation, and such
method is so conceived and adapted as to fulfill the
constitutional requisite of due process of law, any
proceeding conducted in conformity with that method
must be valid.
These considerations are especially important to be
borne in mind in connection with the second
contention made by counsel for the petitioners,
namely, that land cannot be expropriated by the
Government in the absence of a legislative
appropriation especially destined to pay for the land to
be taken. To this question we now address ourselves;
and while we bear in mind the cardinal fact that just
compensation must be made, the further fact must not

be overlooked that there is no organic or

constitutional provision in force in these Islands
requiring that compensation shall actually be paid
prior to the judgment of condemnation.
If the laws which we have exhibited or cited in the
preceding discussion are attentively examined it will
be apparent that the method of expropriation adopted
in this jurisdiction is such as to afford absolute
assurance that no piece of land can be finally and
irrevocably taken from an unwilling owner until
compensation is paid. It is true that in rare instances
the proceedings may be voluntarily abandoned before
the expropriation is complete or the proceedings may
fail because the expropriator becomes insolvent, in
either of which cases the owner retains the property;
and if possession has been prematurely obtained by
the plaintiff in the proceedings, it must be restored. It
will be noted that the title does not actually pass to the
expropriator until a certified copy of the record of the
judgment is recorded in the office of the register of
deeds (sec. 251, Code Civ. Proc.). Before this stage
of the proceedings is reached the compensation is
supposed to have been paid; and the court is plainly
directed to make such final order and judgment as
shall secure to the defendant just compensation for
the land taken. (Sec. 246, Code Civ. Proc.) .
Furthermore, the right of the expropriator is finally
made dependent absolutely upon the payment of
compensation by him. (Sec. 3, Act No. 2826; sec.
247, Code Civ. Proc.).
It will be observed that the scheme of expropriation
exemplified in our statutes does not primarily
contemplate the giving of a personal judgment for the
amount of the award against the expropriator: the
idea is rather to protect the owner by requiring
payment as a condition precedent to the acquisition of
the property by the other party. The power of the court
to enter a judgment for the money and to issue
execution thereon against the plaintiff is, however,
unquestioned; and the court can without doubt
proceed in either way. But whatever course be
pursued the owner is completely protected from the
possibility
of
losing
his
property
without
compensation.
When the Government is plaintiff the judgment will
naturally take the form of an order merely requiring
the payment of the award as a condition precedent to
the transfer of the title, as a personal judgment
against the Government could not be realized upon
execution. It is presumed that by appearing as plaintiff
in condemnation proceedings, the Government
submits itself to the jurisdiction of the court and

thereby waives its immunity from suit. As a

consequence it would be theoretically subject to the
same liability as any other expropriator. Nevertheless,
the entering of a personal judgment against it would
be an unnecessary, as well as profitless formality.
In the face of the elaborate safeguards provided in
our procedure, it is frivolous to speculate upon the
possibility that the Legislature may finally refuse to
appropriate any additional amount, over and above
the provisional deposit, that may be necessary to pay
the award. That it may do. But the Government can
not keep the land and dishonor the judgment.
Moreover, in the eventuality that the expropriation
shall not be consummated, the owners will be
protected by the deposit from any danger of loss
resulting from the temporary occupation of the land by
the Government; for it is obvious that this preliminary
deposit serves the double purpose of a prepayment
upon the value of the property, if finally expropriated,
and as an indemnity against damage in the
eventuality that the proceedings should fail of
consummation.
It appears that the money represented by the
certificate of deposit which was placed at the disposal
of the lower court, pursuant to the requirements of
section 2 of Act No. 2826, was taken from certain
appropriations under the control of the Militia
Commission, a body created by section 29 of Act No.
2715, for the purpose, among others, of advising the
Governor-General upon measures relative to the
organization, equipment, and government of the
National Guard and reserve militia. Counsel for the
petitioners say that money appropriated for the
purposes of the Militia Commission cannot be lawfully
used to acquire the land which is now the subject of
expropriation, because no authority for the exercise of
the power of eminent domain is to be found in any of
the Acts appropriating money for said Commission;
from whence it is argued that the certificate of deposit
affords no protection to the owners of property.
The point appears to be one of little general
importance, and we will not multiply words over it.
Suffice it to say that in our opinion the Insular Auditor
was acting within his authority when he let this money
out of the Insular Treasury; and being now within the
control of the lower court, it will doubtless in due time
be applied to the purpose for which the deposit was
made.
From the foregoing discussion it is apparent that the
action taken by the lower court in the condemnation
proceedings aforesaid was in all respects regular and
within the jurisdiction of the court. The writ prayed for

in the petition before us, therefore, can not be issued.

The application is accordingly denied, with costs
against ,the petitioners.
Arellano, C. J., Torres, Araullo and Avancea, JJ.,
concur.
Johnson, J., reserves the right to prepare a separate
opinion.
Separate Opinions
MALCOLM, J., concurring:
I agree with the conclusion arrived at in the majority
decision. I am clearly of the opinion that the
alternative application for a writ of certiorari or
prohibition should not be granted. An analysis into
their simplest elements of the various questions
presented may easily be made as follows: 1. The
power of the Philippine Government in eminent
domain; 2. The constitutional prohibition that (A)
private property (E) shall not be taken for public use
(C) without just compensation; and 3. The
constitutional prohibition that no money shall be paid
out of the treasury except in pursuance of an
appropriation by law.
1. The power of eminent domain is expressly vested
in the Government of the Philippine Islands by section
63 of the Act of Congress of July 1, 1902, commonly
known as the Philippine Bill. The Philippine
Legislature has, in turn by section 64 (h) of the
Administrative Code of 1917, expressly delegated to
the Governor-General the specific power and duty to
determine when it is necessary or advantageous to
exercise the right of eminent domain in behalf of the
Government of the Philippine Islands. This delegation
of legislative power to the Governor-General was
authorized in view of the nature of eminent domain,
which necessitates administrative agents for its
execution, in view of the previous attitude assumed by
the Judiciary with relation to similar delegations of
power, and in view of the undeniable fact that the
Governor-General is a part of the same Government
of the Philippine Islands to which was transferred the
right of eminent domain by the Congress of the United
States. (See Government of the Philippine Islands vs.
Municipality of Binangonan [1916], 34 Phil. 518.)
When; therefore, the Governor-General directed the
Attorney-General to cause condemnation proceedings
to be begun in the Court of First Instance of Rizal with
the object of having the Government obtain title to the
site commonly known as "Camp Tomas Claudio," the

Governor-General was merely acting as a mouthpiece

of American sovereignty, pursuant to a delegated
power transmitted by the Congress of the United
States to the Government of the Philippine Islands
and lodged by this latter Government in the Chief
Executive. Any other holding would mean that section
64 (h) of the Administrative Code is invalid, a result to
be avoided.
2. In the existing Philippine Bill of Rights (last
sentence, paragraph 1, section 3, Act of Congress of
August 29, 1916) is a provision that "private property
shall not be taken for public use without just
compensation." It seems undeniable (A) that Camp
Claudio was "private property," and (B) that it was
being "taken for public use," namely, for military and
aviation purposes. The only remaining point concerns
"just compensation," which can better be discussed
under our division 3.
3. Another provision of the Philippine Bill of Rights
(paragraph 15, section 3, Act of Congress of August
29, 1916) is, "that no money shall be paid out of the
treasury except in pursuance of an appropriation by
law." The same Organic Act provides (paragraph 1,
section 24) for an Auditor who shall "audit, in
accordance with law and administrative regulations,
all expenditure of funds or property pertaining to, or
hela in trust, by the Government." His administrative
jurisdiction is made "exclusive." The Philippine
Legislature could, of course, have specifically
appropriated an amount for the purchase of the Camp
Claudio site just as it could have specifically enacted
a law for the condemnation of such site, but instead it
preferred to include in the general Appropriation Acts,
under the heads of The Philippine National Guard or
Philippine Militia, a large amount to be expended in
the discretion of the Militia Commission, which may
"use the funds appropriated for other purposes, as the
efficiency of the service may require." This transfer of
power to the Militia Commission, like the delegation of
some of the general legislative power to the
Governor-General, raises no constitutional bar. The
Insular Auditor has stated that there is in the treasury
over a million pesos available for the condemnation of
Camp Claudio, and this decision for present purposes
must be taken as final and conclusive. The six
hundred thousand pesos deposit is merely the
provisional determination of the value of the land by
the competent court, and in no way jeopardizes the
financial interests of the owners of the property. No
additional security is required since the sovereign
power has waived its right to be sued, has pledged
the public faith, and cannot obtain title until the

owners receive just compensation for their property.

(See Sweet vs. Rechel [1895], 159 U. S., 380.)
In resume, therefore, the Governor-General of the
Philippine Islands had the right to authorize the
condemnation of this land for military and aviation
purposes, and no constitutional provision has been
violated. The Court of First Instance of Rizal has
merely acted in strict accord with law, and its action
should, consequently, be sustained.
||| (Visayan Refining Co. v. Camus, G.R. No. 15870,
December 03, 1919)

FIRST DIVISION

[G.R. No. 14355. October 31, 1919.]

THE CITY OF MANILA, plaintiff-appellant, vs.

CHINESE COMMUNITY OF MANILA ET AL.,
defendants-appellees.

City Fiscal Diaz for appellant.

Crossfield & O'Brien, Williams, Ferrier & Sycip,

Delgado & Delgado, Filemon Sotto, and Ramon
Salinas for appellees.

SYLLABUS

1. EMINENT DOMAIN; EXPROPRIATION OF

PRIVATE PROPERTY, RIGHT OF COURTS TO
INQUIRE INTO NECESSITY OF. When a
municipal corporation attempts to expropriate private
property and an objection is made thereto by the
owner, the courts have ample authority, in this
jurisdiction, to make inquiry, and to hear proof upon
an-issue properly presented, concerning the question
whether or not the purpose of the appropriation is, in
fact, for some public use. The right of expropriation is
not inherent power in a municipal corporation and
before it can exercise the right some law must exist
conferring the power upon it. A municipal corporation
in this jurisdiction cannot expropriate public property.
The land to be expropriated must be private, and the
purpose of the expropriation must be public. If the
court. upon trial, finds that neither of said condition
exists, or that either one of them fails, the right to
expropriate does not exist. If the property is taken in
the ostensible behalf of a public improvement which it
can never by any possibility serve, it is being taken for
a use not public, and the owner's constitutional rights
call for protection by the courts.
2. ID.; ID. Upon the other hand, the Legislature
may directly determine the necessity for appropriating
private property for a particular improvement for

public use, and it may select the exact location of the

improvement. In such a case, it is well settled that the
utility of the proposed improvement, the existence of
the public necessity for its construction, the
expediency of constructing it, the suitableness of the
location selected, and the consequent necessity of
taking the lands selected, are all questions exclusively
for the legislature to determine, and the courts have
no power to interfere or to substitute their own views
for those of the representatives of the people.
3. ID.; ID. But when the law does not designate the
property to be taken, nor how much may be taken,
then the necessity of taking private property is a
question for the courts.
4. ID.; ID. There is a wide distinction between a
legislative declaration that a municipality is given
authority to exercise the right of eminent domain and
a decision by the municipality that there exists a
necessity for the exercise of that right in a particular
case.
5. ID.; ID. Whether or not it was wise, advisable, or
necessary to confer upon a municipality the power to
exercise the right of eminent domain, is a question
with which the courts are not concerned. But
whenever that right or authority is exercised for the
purpose of depriving citizens of their property, the
courts are authorized, in this jurisdiction, to make
inquiry and to hear proof upon the necessity in a
particular case, and not the general authority.
6. ID.; ID. In the absence of some constitutional or
statutory provision to the contrary, the necessity and
expediency of exercising the right of eminent domain
are questions essentially political and not judicial in
their character.
7. ID.; ID. The taking of private property for any use
which is not required by the necessities or
convenience of the inhabitants of a state, is an
unreasonable exercise of the right of eminent domain
8. ID.; ID. That government can scarcely be
deemed free where the rights of property are left
solely dependent on the legislative body without
restraint. The fundamental maxims of free
government seem to require that the rights of
personal liberty and private property should be held
sacred. At least no court of justice would be warranted
in assuming that the power to violate and disregard
them lurks in any general grant of legislative authority
or ought to be implied from any general expression of

the people. The people ought not to be presumed to

part with rights so vital to their security and well-being
without a very strong and direct expression of such
intention.
9. ID.; ID. The exercise of the right of eminent
domain is necessarily in derogation of private rights,
and the rule in that case is that the authority must be
strictly construed. No species of property is held by
individuals with greater tenacity and none is guarded
by the constitution and laws more sedulously, than the
right to the freehold of inhabitants. When the
legislature interferes with that right, the plain meaning
of the law should not be enlarged by doubtful
interpretation.
10. ID.; ID. The very foundation of the right to
exercise eminent domain is a genuine necessity, and
that necessity must be of a public character. The
ascertainment of the necessity must precede, and not
follow, the taking of the property. The general power
to exercise the right of eminent domain must not be
confused with the right to exercise it in a particular
case.
11. ID.; CEMETERIES, EXPROPRIATION OF.
Where a cemetery is open to the public, it is a public
use and no part of the ground can be taken for other
public uses under a general authority.
12. ID.; ID. The city of Manila is not authorized to
expropriate public property.
Per MALCOLM, J., concurring:
13. EMINENT DOMAIN; POWER OF THE
GOVERNMENT OF THE PHILIPPINE ISLANDS.
The Government of the Philippine Islands is
authorized by the Philippine Bill to acquire real estate
for public use by the exercise of the right of eminent
domain.
14. ID.; ID.; CITY OF MANILA. The city of Manila is
authorized by the Philippine Legislature to condemn
private property for public use.
16. ID.; ID.; ID.; PRIVATE PROPERTY; PUBLIC USE.
The Legislature has the power to authorize the
taking of land already applied to one public use and
devote it to another.
16. ID.; ID.; ID., ID.; ID. When the power to take
land already applied to one public use and devote it to
another is granted to municipal or private corporations
in express words, no question can arise.

17. ID.; ID.; ID.; ID.; ID. Land already devoted to a

public use cannot be taken by the public for another
use which is inconsistent with the first without special
authority from the Legislature or authority granted by
necessary and reasonable implication.
18. ID.; ID.; ID.; ID.; ID. Land applied to one use
should not be taken for another except in cases of
necessity.
19. ID.; ID.; ID.; ID.; ID.; CEMETERIES; CLASSES.
Cemeteries are of two classes: public and private.
20. ID.; ID.; ID.; ID.; ID.; ID.; ID.; PUBLIC
CEMETERY. A public cemetery is one used by the
general community, or neighborhood, or church .
21. ID.; ID.; ID.; ID.; ID.; ID.; ID.; PRIVATE
CEMETERY. A private cemetery is one used only
by a family, or a small portion of a community.
22. ID.; ID.; ID.; ID.; ID.; ID.; ID.; CHINESE
CEMETERY, CITY OF MANILA. The Chinese
Cemetery in the city of Manila is a public cemetery.
23. ID.; ID.; ID.; ID.; ID.; ID.; ID.; ID. Cemeteries,
while still devoted to pious uses, are sacred, and it
cannot be supposed that the Legislature has intended
that they should be violated in the absence of special
provisions on the subject authorizing such invasion.
24. ID.; ID.; ID.; ID.; ID.; ID.; ID.; ID. Held: That
since the city of Manila is only permitted to condemn
private property for public use and since the Chinese
Cemetery in the city of Manila is a public cemetery
already devoted to a public use, the city of Manila
cannot condemn a portion of the cemetery for a public
street.
DECISION

JOHNSON, J p:

The important question presented by this appeal is: In

expropriation proceedings by the city of Manila, may
the courts inquire into, and hear proof upon, the
necessity of the expropriation?
That question arose in the following manner:
On the 11th day of December, 1916, the city of Manila
presented a petition in the Court of First Instance of
said city, praying that certain lands, therein
particularly described, be expropriated for the purpose

of constructing a public improvement. The petitioner,

in the second paragraph of the petition, alleged:
"That for the purpose of constructing a public
improvement, namely, the extension of Rizal Avenue,
Manila, it is necessary for the plaintiff to acquire
ownership in fee simple of certain parcels of land
situated in the district of Binondo of said city within
Block 83 of said district, and within the jurisdiction of
this court."
The defendant, the Comunidad de Chinos de Manila
[Chinese Community of Manila], answering the
petition of the plaintiff, alleged that it was a
corporation organized and existing under and by
virtue of the laws of the Philippine Islands, having for
its purpose the benefit and general welfare of the
Chinese Community of the City of Manila; that it was
the owner of parcels one and two of the land
described in paragraph 2 of the complaint; that it
denied that it was either necessary or expedient that
the said parcels be expropriated for street purposes;
that existing street and roads furnished ample means
of communication for the public in the district covered
by such proposed expropriation; that if the
construction of the street or road should be
considered a public necessity, other routes were
available, which would fully satisfy the plaintiff's
purposes, at much less expense and without
disturbing the resting places of the dead; that it had a
Torrens title for the lands in question; that the lands in
question had been used by the defendant for
cemetery purposes; that a great number of Chinese
were buried in said cemetery; that if said expropriation
be carried into effect, it would disturb the resting
places of the dead, would require the expenditure of a
large sum of money in the transfer or removal of the
bodies to some other place or site and in the
purchase of such new sites, would involve the
destruction of existing monuments and the erection of
new monuments in their stead, and would create
irreparable loss and injury to the defendant and to all
those persons owning and interested in the graves
and monuments which would have to be destroyed;
that the plaintiff was without right or authority to
expropriate said cemetery or any part or portion
thereof for street purposes; and that the expropriation,
in fact, was not necessary as a public improvement.

The defendant Ildefonso Tambunting, answering the

petition, denied each and every allegation of the

complaint, and alleged that said expropriation was not

a public improvement; that it was not necessary for
the plaintiff to acquire the parcels of land in question;
that a portion of the lands in question was used as a
cemetery in which were the graves of his ancestors;
that monuments and tomb-stones of great value were
found thereon; that the land had become quasi-public
property of a benevolent association, dedicated and
used for the burial of the dead and that many dead
were buried there; that if the plaintiff deemed it
necessary to extend Rizal Avenue, he had offered and
still offers to grant a right of way for the said extension
over other land, without cost to the plaintiff, in order
that the sepulchers, chapels and graves of his
ancestors may not be disturbed; that the land so
ordered, free of charge, would answer every public
necessity on the part of the plaintiff.
The defendant Feliza Concepcion de Delgado, with
her husband, Jose Maria Delgado, and each of the
other defendants, answering separately, presented
substantially the same defense as that presented by
the Comunidad de Chinos de Manila and Ildefonso
Tambunting above referred to.
The foregoing parts of the defense presented by the
defendants have been inserted in order to show the
general character of the defenses presented by each
of the defendants. The plaintiff alleged that the
expropriation was necessary. The defendants each
alleged (a) that no necessity existed for said
expropriation and (b) that the land in question was a
cemetery, which had been used as such for many
years, and was covered with sepulchers and
monuments, and that the same should not be
converted into a street for public purposes.
Upon the issue thus presented by the petition and the
various answers, the Honorable Simplicio del Rosario,
judge, in a very elucidated opinion, with very clear
and explicit reasons, supported by abundance of
authorities, decided that there was no necessity for
the expropriation of the particular-strip of land in
question, and absolved each and all of the defendants
from all liability under the complaint, without any
finding as to costs.
From that judgment the plaintiff appealed and
presented the above question as its principal ground
of appeal.
The theory of the plaintiff is, that once it has
established the fact, under the law, that it has
authority to expropriate land, it may expropriate any

land it may desire; that the only function of the court in

such proceedings is to ascertain the value of the land
in question; that neither the court nor the owners of
the land can inquire into the advisable purpose of the
expropriation or ask any questions concerning the
necessities therefor; that the courts are mere
appraisers of the land involved in expropriation
proceedings, and, when the value of the land is fixed
by the method adopted by the law, to render a
judgment in favor of the defendant for its value.
That the city of Manila has authority to expropriate
private lands for public purposes, is not denied.
Section 2429 of Act No. 2711 (Charter of the city of
Manila) provides that "the city (Manila) . . . may
condemn private property for public use."
The Charter of the city of Manila contains no
procedure by which the said authority may be carried
into effect. We are driven, therefore, to the procedure
marked out by Act No. 190 to ascertain how the said
authority may be exercised. From an examination of
Act No. 190, in its section 241, we find how the right
of eminent domain may be exercised. Said section
241 provides that, "The Government of the Philippine
Islands, or of any province or department thereof, or
of any municipality, and any person, or public or
private corporation having, by law, the right to
condemn private property for public use, shall
exercise that right in the manner hereinafter
prescribed."
Section 242 provides that a complaint in expropriation
proceeding shall be presented; that the complaint
shall state with certainty the right of condemnation,
with a description of the property sought to be
condemned together with the interest of each
defendant separately
Section 243 provides that if the court shall find upon
trial that the right to expropriate the land in question
exists, it shall then appoint commissioners.
Sections 244, 245 and 246 provide the method of
procedure and duty of the commissioners. Section
248 provides for an appeal from the judgment of the
Court of First Instance to the Supreme Court. Said
section 248 gives the Supreme Court authority to
inquire into the right of expropriation on the part of the
plaintiff. If the Supreme Court on appeal shall
determine that no right of expropriation existed, it
shall remand the cause to the Court of First Instance
with a mandate that the defendant be replaced in the
possession of the property and that he recover

whatever damages he may have sustained by reason

of the possession of the plaintiff.
It is contended on the part of the plaintiff that the
phrase in said section, "and if the court shall find that
the right to expropriate exists," means simply that, if
the court finds that there is some law authorizing the
plaintiff to expropriate, then the courts have no other
function than to authorize the expropriation and to
proceed to ascertain the value of the land involved;
that the necessity for the expropriation is a legislative
and not a judicial question.
Upon the question whether expropriation is a
legislative function exclusively, and that the courts
cannot intervene except for the purpose of
determining the value of the land in question, there is
much legal literature. Much has been written upon
both sides of that question. A careful examination of
the discussions pro and con will disclose the fact that
the decisions depend largely upon particular
constitutional or statutory provisions. It cannot be
denied, if the legislature under proper authority should
grant the expropriation of a certain or particular parcel
of land for some specified public purpose, that the
courts would be without jurisdiction to inquire into the
purpose of that legislation.
If, upon the other hand, however, the Legislature
should grant general authority to a municipal
corporation to expropriate private land for public
purposes, we think the courts have ample authority in
this jurisdiction, under the provisions above quoted, to
make inquiry and to hear proof, upon an issue
properly presented, concerning whether or not the
lands were private and whether the purpose was, in
fact, public. In other words, have not the courts in this
jurisdiction the right, inasmuch as the questions
relating to expropriation must be referred to them
(sec. 241, Act No. 190) for final decision, to ask
whether or not the law has been complied with ?
Suppose, in a particular case, it should be denied that
the property is not private property but public, may not
the courts hear proof upon that question? Or, suppose
the defense is, that the purpose of the expropriation is
not public but private, or that there exists no public
purpose at all, may not the courts make inquiry and
hear proof upon that question?
The city of Manila is given authority to expropriate
private lands for public purposes. Can it be possible
that said authority confers the right to determine for
itself that the land is private and that the purpose is

public, and that the people of the city of Manila who

pay the taxes for its support, especially those who are
directly affected, may not question one or the other, or
both, of these questions? Can it be successfully
contended that the phrase used in Act No. 190, "and if
the court upon trial shall find that such right exists,"
means simply that the court shall examine the
statutes simply for the purpose of ascertaining
whether a law exists authorizing the petitioner to
exercise the right of eminent domain ? Or, when the
case arrives in the Supreme Court, can it be possible
that the phrase, "if the Supreme Court shall determine
that no right of expropriation exists," that that simply
means that the Supreme Court shall also examine the
enactments of the legislature for the purpose of
determining whether or not a law exists permitting the
plaintiff to expropriate?
We are of the opinion that the power of the court is
not limited to that question. The right of expropriation
is not an inherent power in a municipal corporation,
and before it can exercise the right some law must
exist conferring the power upon it. When the courts
come to determine the question, they must not only
find (a) that a law or authority exists for the exercise
of the right of eminent domain, but (b) also that the
right or authority is being exercised in accordance
with the law. In the present case there are two
conditions imposed upon the authority conceded to
the City of Manila: First, the land must be private; and,
second, the purpose must be public. If the court, upon
trial, finds that neither of these conditions exists or
that either one of them fails, certainly it cannot be
contended that the right is being exercised in
accordance with law
Whether the purpose for the exercise of the right of
eminent domain is public, is a question of fact.
Whether the land is public or private is also a question
of fact; and, in our opinion, when the legislature
conferred upon the courts of the Philippine Islands the
right to ascertain upon trial whether the right exists for
the exercise of eminent domain, it intended that the
courts should inquire into, and hear proof upon, those
questions. Is it possible that the owner of valuable
land in this jurisdiction is compelled to stand mute
while his land is being expropriated for a use not
public, with the right simply to beg the city of Manila to
pay him the value of his land? Does the law in this
jurisdiction permit municipalities to expropriate lands,
without question, simply for the purpose of satisfying
the aesthetic sense of those who happen for the time
being to be in authority ? Expropriation of lands

usually calls for public expense. The taxpayers are

called upon to pay the costs. Cannot the owners of
land question the public use or the public necessity?

As was said above, there is a wide divergence of

opinion upon the authority of the court to question the
necessity or advisability of the exercise of the right of
eminent domain. The divergence is usually found to
depend upon particular statutory or constitutional
provisions.
It has been contended and many cases are cited in
support of that contention, and section 158 of volume
10 of Ruling Case Law is cited as conclusive that
the necessity for taking property under the right of
eminent domain is not a judicial question. But those
who cited said section evidently overlooked the
section immediately following (sec. 159), which adds:
"But it is obvious that if the property is taken in the
ostensible behalf of a public improvement which it can
never by any possibility serve, it is being taken for a
use not public, and the owner's constitutional rights
call for protection by the courts. While many courts
have used sweeping expression in the decisions in
which they have disclaimed the power of supervising
the selection of the sites of public improvements, it
may be safely said that the courts of the various
states would feel bound to interfere to prevent an
abuse of the discretion delegated by the legislature,
by an attempted appropriation of land in utter
disregard of the possible necessity of its use, or when
the alleged purpose was a cloak to some sinister
scheme." Norwich City vs. Johnson, 86 Conn., 151;
Bell vs. Mattoon Waterworks, etc. Co., 245 Ill., 544;
Wheeling, etc. R. R. Co. vs. Toledo Ry. etc. Co., 72
Ohio St., 368; State vs. Stewart, 74 Wis., 620.)
Said section 158 (10 R. C. L., 183) which is cited as
conclusive authority in support of the contention of the
appellant, says:
"The legislature, in providing for the exercise of the
power of eminent domain, may directly determine the
necessity for appropriating private property for a
particular improvement for public use, and it may
select the exact location of the improvement. In such
a case, it is well settled that the utility of the proposed
improvement, the extent of the public necessity for its
construction, the expediency of constructing it, the
suitableness of the location selected and the
consequent necessity of taking the land selected for
its site, are all questions exclusively for the legislature

to determine and the courts have no power to

interfere, or to substitute their own views for those of
the representatives of the people."

was not within the territorial jurisdiction of the

municipality at the time the legislative authority was
granted.

Practically every case cited in support of the above

doctrine has been examined, and we are justified in
making the statement that in each case the legislature
directly determined the necessity for the exercise of
the right of eminent domain in the particular case. It is
not denied that if the necessity for the exercise of the
right of eminent domain is presented to the legislative
department of the government and that department
decides that there exists a necessity for the exercise
of the right in a particular case, that then and in that
case, the courts will not go behind the action of the
legislature and make inquiry concerning the necessity.
But in the case of Wheeling, etc. R. R. Co. vs. Toledo,
Ry., etc. Co. (72 Ohio St., 368 [106 Am. St. Rep., 622,
628] ), which is cited in support of the doctrine laid
down in section 158 above quoted, the court said:

Whether it was wise, advisable, or necessary to

confer upon a municipality the power to exercise the
right of eminent domain, is a question with which the
courts are not concerned. But when that right or
authority is exercised for the purpose of depriving
citizens of their property, the courts are authorized, in
this jurisdiction, to make inquiry and to hear proof
upon the necessity in the particular case, and not the
general authority.

"But when the statute does not designate the property

to be taken nor how much may be taken, then the
necessity of taking particular property is a question for
the courts Where the application to condemn or
appropriate is made directly to the court, the question
(of necessity) should be raised and decided in limine."

"In the absence of some constitutional or statutory

provision to the contrary, the necessity and
expediency of exercising the right of eminent domain
are questions essentially political and not judicial in
their character. The determination of those questions
(the necessity and the expediency) belongs to the
sovereign power; the legislative department is final
and conclusive, and the courts have no power to
review it (the necessity and the expediency) . . . . It
(the legislature) may designate the particular property
to be condemned, and its determination in this
respect cannot be reviewed by the courts."

The legislative department of the government very

rarely undertakes to designate the precise property
which should be taken for public use. It has generally,
like in the present case, merely conferred general
authority to take land for public use when a necessity
exists therefor. We believe that it can be confidently
asserted that, under such statute, the allegation of the
necessity for the appropriation is an issuable
allegation which it is competent for the courts to
decide. (Lynch vs. Forbes, 161 Mass., 302 [42 Am. St.
Rep., 402, 407].)
There is a wide distinction between a legislative
declaration that a municipality is given authority to
exercise the right of eminent domain, and a decision
by the municipality that there exists a necessity for the
exercise of that right in a particular case. The first is a
declaration simply that there exist reasons why the
right should be conferred upon municipal corporation,
while the second is the application of the right to a
particular case. Certainly, the legislative declaration
relating to the advisability of granting the power
cannot be converted into a declaration that a
necessity exists for its exercise in a particular case,
and especially so when, perhaps, the land in question

Volume 15 of the Cyclopedia of Law and Procedure

(Cyc.), page 629, is cited as a further conclusive
authority upon the question that the necessity for the
exercise of the right of eminent domain is a legislative
and not a judicial question. Cyclopedia, at the page
stated, says:

The volume of Cyclopedia, above referred to, cites

many cases in support of the doctrine quoted. While
time has not permitted an examination of all of said
citations, many of them have been examined, and it
can be confidently asserted that said cases which are
cited in support of the assertion that, "the necessity
and expediency of exercising the right of eminent
domain are questions essentially political and not
judicial," show clearly and invariably that in each case
the legislature itself usually, by a special law,
designated the particular case in which the right of
eminent domain might be exercised by the particular
municipal corporation or entity within the state.
(Eastern R. Co. vs. Boston, etc., R. Co., 11 Mass.,
125 [15 Am. Rep., 13]; Brooklyn Park Com'rs. vs.
Armstrong, 45 N. Y., 234 [6 Am. Rep., 70]; Hairston
vs. Danville, etc. Ry. Co., 208 U. S. 598; Cincinnati vs.
Louisville, etc. Ry. Co., 223 U. S. 390; U. S. vs.
Chandler-Dunbar Water Power Co., 229 U. S., 53; U.

S. vs. Gettysburg, etc. Co., 160 U. S., 668; Traction

Co. vs. Mining Co., 196 U. S., 239; Sears vs. City of
Akron, 246 U. S., 351 [erroneously cited as 242 U.
S.].)
In the case of Traction Co. vs. Mining Co. (196 U. S.,
239), the Supreme Court of the United States said: "It
is erroneous to suppose that the legislature is beyond
the control of the courts in exercising the power of
eminent domain, either as to the nature of the use or
the necessity to the use of any particular property. For
if the use be not public or no necessity for the taking
exists, the legislature cannot authorize the taking of
private property against the will of the owner,
notwithstanding compensation may be required."
In the case of School Board of Carolina vs. Saldaa
(14 Porto Rico, 339, 356), we find the Supreme Court
of Porto Rico, speaking through Justice MacLeary,
quoting approvingly the following, upon the question
which we are discussing: "It is well settled that
although the legislature must necessarily determine in
the first instance whether the use for which they
(municipalities, etc.) attempt to exercise the power is
a public one or not, their (municipalities, etc.)
determination is not final, but is subject to correction
by the courts, who may undoubtedly declare the
statute unconstitutional, if it shall clearly appear that
the use for which it is proposed to authorize the taking
of private property is in reality not public but private."
Many cases are cited in support of that doctrine.
Later, in the same decision, we find the Supreme
Court of Porto Rico says: "At any rate, the rule is quite
well settled that in the cases under consideration the
determination of the necessity of taking a particular
piece or a certain amount of land rests ultimately with
the courts." (Spring Valley etc. Co. vs. San Mateo,
etc. Co., 64 Cal., 123.) In the case of Board of Water
Com'rs., etc. vs. Johnson (86 Conn., 571 [41 L. R. A.,
N. S., 1024] ), the Supreme Court of Connecticut
approvingly quoted the following doctrine from Lewis
on Eminent Domain (3d ed.), section 599: "In all such
cases the necessity of public utility of the proposed
work or improvement is a judicial question. In all such
cases, where the authority is to take property
necessary for the purpose, the necessity of taking
particular property for a particular purpose is a judicial
one, upon which the owner is entitled to be heard."
Riley vs. Charleston, etc. Co., 71 S. C., 457, 489 [110
Am. St. Rep., 579]; Henderson vs. Lexington 132 Ky.,
390, 403.)

The taking of private property for any use which is not

required by the necessities or convenience of the
inhabitants of the state, is an unreasonable exercise
of the right of eminent domain, and beyond the power
of the legislature to delegate. (Bennett vs. Marion,
106 Iowa, 628, 633; Wilson vs. Pittsburg, etc. Co.,
222 Pa. St., 541, 545; Greasy, etc. Co. vs. Ely, etc.
Co., 132 Ky., 692, 697.)

In the case of New Central Coal Co. vs. George's, etc.

Co. (37 Md., 537, 564), the Supreme Court of the
State of Maryland, discussing the question before us,
said: "To justify the exercise of this extreme power ,
(eminent domain) where the legislature has left it to
depend upon the necessity that may be found to exist,
in order to accomplish the purposes of the
incorporation, as in this case, the party claiming the
right to the exercise of the power should be required
to show at least a reasonable degree of necessity for
its exercise. Any rule less strict than this, with the
large and almost indiscriminate delegation of the right
to corporations, would likely lead to oppression and
the sacrifice of private right to corporate power."
In the case of Dewey vs. Chicago, etc. Co. (184 Ill.,
426, 433), the court said: "Its right to condemn
property is not a general power of condemnation, but
is limited to cases where a necessity for resort to
private property is shown to exist. Such necessity
must appear upon the face of the petition to condemn.
If the necessity is denied the burden is upon the
company (municipality) to establish it." (Highland, etc.
Co. vs. Strickley, 116 Fed., 852, 856; Kiney vs.
Citizens' Water & Light Co., 173 Ind., 252, 257; Bell
vs Mattoon Waterworks, etc. Co., 245 Ill., 544 [137
Am St. Rep., 388].)
It is true that many decisions may be found asserting
that what is a public use is a legislative question, and
many other decisions declaring with equal emphasis
that it is a judicial question. But, as long as there is a
constitutional or statutory provision denying the right
to take land for any use other than a public use, it
occurs to us that the question whether any particular
use is a public one or not is ultimately, at least, a
judicial question. The legislature may, it is true, in
effect declare certain uses to be public, and, under
the operation of the well-known rule that a statute will
not be declared to be unconstitutional except in a
case free, or comparatively free, from doubt, the
courts will certainly sustain the action of the

legislature, unless it appears that the particular use is

clearly not of a public nature. The decisions must be
understood with this limitation; for, certainly, no court
of last resort will be willing to declare that any and
every purpose which the legislature might happen to
designate as a public use shall be conclusively held to
be so, irrespective of the purpose in question and of
its manifestly private character. Blackstone in his
Commentaries on the English Law remarks that, so
great is the regard of the law for private property that
it will not authorize the least violation of it, even for the
public good, unless there exists a very great necessity
therefor.
In the case of Wilkinson vs. Leland (2 Fet. [U. S.],
657), the Supreme Court of the United States said:
"That government can scarcely be deemed free
where the rights of property are left solely dependent
on the legislative body, without restraint. The
fundamental maxims of free government seem to
require that the rights of personal liberty and private
property should be held sacred. At least no court of
justice in this country would be warranted in assuming
that the power to violate and disregard them a
power so repugnant to the common principles of
justice and civil liberty lurked in any general grant
of legislative authority, or ought to be implied from any
general expression of the people. The people ought
not to be presumed to part with rights so vital to their
security and well-being without very strong and direct
expression of such intention." (Lewis on Eminent
Domain, sec. 603; Lecoul vs. Police Jury, 20 La. Ann.,
308; Jefferson vs. Jazem, 7 La. Ann., 182.)
Blackstone, in his Commentaries on the English Law,
said that the right to own and possess land a place
to live separate and apart from others to retain it as
a home for the family in a way not to be molested by
others is one of the most sacred rights that men
are heirs to. That right has been written into the
organic law of every civilized nation. The Acts of
Congress of July 1, 1902, and of August 29, 1916,
which provide that "no law shall be enacted in the
Philippine Islands which shall deprive any person of
his property without due process of law," are but a
restatement of the time-honored protection of the
absolute right of the individual to his property. Neither
did said Acts of Congress add anything to the law
already existing in the Philippine Islands. The
Spaniard fully recognized the principle and
adequately protected the inhabitants of the Philippine
Islands against the encroachment upon the private
property of the individual. Article 349 of the Civil Code

provides that: "No one may be deprived of his

property unless it be by competent authority, for some
purpose of proven public utility, and after payment of
the proper compensation. Unless this requisite
(proven public utility and payment) has been complied
with, it shall be the duty of the courts to protect the
owner of such property in its possession or to restore
its possession to him, as the case may be."
The exercise of the right of eminent domain, whether
directly by the State, or by its authorized agents, is
necessarily in derogation of private rights, and the
rule in that case is that the authority must be strictly
construed. No species of property is held by
individuals with greater tenacity, and none is guarded
by the constitution and laws more sedulously, than the
right to the freehold of inhabitants. When the
legislature interferes with that right, and, for greater
public purposes, appropriates the land of an individual
without his consent, the plain meaning of the law
should not be enlarged by doubtly interpretation.
(Bensley vs. Mountain lake Water Co., 13 Cal., 306
and cases cited [73 Am. Dec., 576].)
The statutory power of taking property from the owner
without his consent is one of the most delicate
exercise of governmental authority. It is to be watched
with jealous scrutiny. Important as the power may be
to the government, the inviolable sanctity which all
free constitutions attach to the right of property of the
citizens, constrains the strict observance of the
substantial provisions of the law which are prescribed
as modes of the exercise of the power, and to protect
it from abuse. Not only must the authority of municipal
corporations to take property be expressly conferred
and the use for which it is taken specified, but the
power, with all constitutional limitation and directions
for its exercise, must be strictly pursued. (Dillon on
Municipal Corporations [5th Ed.], sec. 1040, and
cases cited; Tenorio vs. Manila Railroad Co., 22 Phil.,
411.)
It can scarcely be contended that a municipality would
be permitted to take property for some public use
unless some public necessity existed therefor. The
right to take private property for public use originates
in the necessity, and the taking must be limited by
such necessity. The appellant contends that inasmuch
as the legislature has given it general authority to take
private property for public use, that the legislature
has, therefore, settled the question of the necessity in
every case and that the courts are closed to the
owners of the property upon that question. Can it be

imagined, when the legislature adopted section 2429

of Act No. 2711, that it thereby declared that it was
necessary to appropriate the property of Juan de la
Cruz, whose property, perhaps, was not within the city
limits at the time the law was adopted ? The
legislature, then, not having declared the necessity,
can it be contemplated that it intended that a
municipality should be the sole judge of the necessity
in every case, and that the courts, in the face of the
provision that "if upon trial they shall find that a right
exists," cannot in that trial inquire into and hear proof
upon the necessity for the appropriation in a particular
case ?
The Charter of the city of Manila authorizes the taking
of private property for public use. Suppose the owner
of the property denies and successfully proves that
the taking of his property serves no public use: Would
the courts not be justified in inquiring into that
question and in finally denying the petition if no public
purpose was proved ? Can it be denied that the
courts have a right to inquire into that question? If the
courts can ask questions and decide, upon an issue
properly presented, whether the use is public or not,
is not that tantamount to permitting the courts to
inquire into the necessity of the appropriation? If there
is no public use, then there is no necessity, and if
there is no necessity, it is difficult to understand how a
public use can necessarily exist. If the courts can
inquire into the question whether a public use exists
or not, then it seems that it must follow that they can
examine into the question of the necessity.
The very foundation of the right to exercise eminent
domain is a genuine necessity, and that necessity
must be of a public character. The ascertainment of
the necessity must precede or accompany, and not
follow, the taking of the land. (Morrison vs.
Indianapolis, etc. Ry. Co., 166 Ind., 611; Stearns vs.
Barre, 73 Vt., 281; Wheeling, etc. R. R. Co. vs.
Toledo, Ry. etc. Co., 72 Ohio St., 368.)
The general power to exercise the right of eminent
domain must not be confused with the right to
exercise it in a particular case. The power of the
legislature to confer, upon municipal corporations and
other entities within the State, general authority to
exercise the right of eminent domain cannot be
questioned by the courts, but that general authority of
municipalities or entities must not be confused with
the right to exercise it in particular instances. The
moment the municipal corporation or entity attempts
to exercise the authority conferred, it must comply

with the conditions accompanying the authority. The

necessity for conferring the authority upon a municipal
corporation to exercise the right of eminent domain is
admittedly within the power of the legislature. But
whether or not the municipal corporation or entity is
exercising the right in a particular case under the
conditions imposed by the general authority, is a
question which the courts have the right to inquire
into.

The conflict in the authorities upon the question

whether the necessity for the exercise of the right of
eminent domain is purely legislative and not judicial,
arises generally in the wisdom and propriety of the
legislature in authorizing the exercise of the right of
eminent domain instead of in the question of the right
to exercise it in a particular case. (Creston
Waterworks Co. vs. McGrath, 89 Iowa, 502.)
By the weight of authorities, the courts have the
power of restricting the exercise of eminent domain to
the actual reasonable necessities of the case and for
the purposes designated by the law. (Fairchild vs. City
of St. Paul. 48 Minn.. 540.)
And, moreover, the record does not show conclusively
that the plaintiff has definitely decided that their exists
a necessity for the appropriation of the particular land
described in the complaint. Exhibits 4, 5, 7, and E
clearly indicate that the municipal board believed at
one time that other land might be used for the
proposed improvement, thereby avoiding the
necessity of disturbing the quiet resting place of the
dead.
Aside from insisting that there exists no necessity for
the alleged improvement, the defendants further
contend that the street in question should not be
opened through the cemetery. One of the defendants
alleges that said cemetery is public property. If that
allegations is true, then, of course, the city of Manila
cannot appropriate it for public use. The city of Manila
can only expropriate private property.
It is a well known fact that cemeteries may be public
or private. The former is a cemetery used by the
general community, or neighborhood, or church, while
the latter is used only by a family, or a small portion of
the community or neighborhood. (11 C. J., 50.)
Where a cemetery is open to the public, it is a public
use and no part of the ground can be taken for other

public uses under a general authority. And this

immunity extends to the unimproved and unoccupied
parts which are held in good faith for future use.
(Lewis on Eminent Domain, sec. 434, and cases
cited.)
The cemetery in question seems to have been
established under governmental authority. The
Spanish Governor-General, in an order creating the
same, used the following language:
"The cemetery and general hospital for indigent
Chinese having been founded and maintained by the
spontaneous and fraternal contribution of their
protector, merchants and industrials, benefactors of
mankind, in consideration of their services to the
Government of the Islands its internal administration,
government and regime must necessarily be adjusted
to the taste and traditional practices of those born and
educated in China in order that the sentiments which
animated the founders may be perpetually
effectuated."
It is alleged, and not denied, that the cemetery in
question may be used by the general community of
Chinese, which fact, in the general acceptation of the
definition of a public cemetery, would make the
cemetery in question public property. If that is true,
then, of course, the petition of the plaintiff must be
denied, for the reason that the city of Manila has no
authority or right under the law to expropriate public
property.
But, whether or not the cemetery is public or private
property, its appropriation for the uses of a public
street, especially during the lifetime of those specially
interested in its maintenance as a cemetery, should
be a question of great concern, and its appropriation
should not be made for such purposes until it is fully
established that the greatest necessity exists therefor.
While we do not contend that the dead must not give
place to the living, and while it is a matter of public
knowledge that in the process of time sepulchers may
become the seat of cities and cemeteries traversed by
streets and daily trod by the feet o millions of men,
yet, nevertheless such sacrifices and such uses of the
places of the dead should not be made unless and
until it is fully established that there exists an eminent
necessity therefor. While cemeteries and sepulchers
and the places of the burial of the dead are still within
the memory and command of the active care of the
living; while they are still devoted to pious uses and
sacred regard, it is difficult to believe that even the

legislature would adopt a law expressly providing that

such places, under such circumstances, should be
violated.
In such an appropriation, what, we may ask, would be
the measure of damages at law, for the wounded
sensibilities of the living, in having the graves of
kindred and loved ones blotted out and desecrated by
a common highway or street for public travel ? The
impossibility of measuring the damage and
inadequacy of a remedy at law is too apparent to
admit of argument. To disturb the mortal remains of
those endeared to us in life sometimes becomes the
sad duty of the living; but, except in cases of
necessity, or for laudable purposes, the sanctity of the
grave, the last resting place of our friends, should be
maintained, and the preventative aid of the courts
should be invoked for that object. (Railroad Company
vs. Cemetery Co., 116 Tenn., 400; Evergreen
Cemetery Association vs. The City of New Haven, 43
Conn., 234; Anderson vs. Acheson, 132 Iowa, 744;
Beatty vs. Kurtz, 2 Peters, 566.)
In the present case, even granting that a necessity
exists for the opening of the street in question, the
record contains no proof of the necessity of opening
the same through the cemetery. The record shows
that adjoining and adjacent lands have been offered
to the city free of charge, which will answer every
purpose of the plaintiff.
For all of the foregoing, we are fully persuaded that
the judgment of the lower court should be and is
hereby affirmed, with costs against the appellant. So
ordered.
Arellano, C. J., Torres, Araullo and Avancea, JJ.,
concur.
||| (City of Manila v. Chinese Community of Manila,
G.R. No. 14355, October 31, 1919)

THIRD DIVISION
[G.R. No. 135087. March 14, 2000.]
HEIRS OF ALBERTO SUGUITAN, petitioner, vs.
CITY OF MANDALUYONG, respondent.
Marious Corpus for petitioner.
Robert L. Lim for private respondent.
SYNOPSIS
On October 13, 1994, the Sangguniang Panglungsod
of Mandaluyong City issued a resolution authorizing
Mayor Benjamin S. Abalos to institute expropriation
proceeding over the property of Alberto Suguitan
located at Boni Avenue and Sto. Rosario Streets in
Mandaluyong City for the expansion of Mandaluyong
Medical Center. On January 20, 1995, Mayor Abalos
wrote Alberto Suguitan offering to buy his property,
but Suguitan refused to sell. Consequently, the City of
Mandaluyong filed a complaint for expropriation with
the Regional Trial Court of Pasig. Suguitan filed a
motion to dismiss. The trial court denied the said
motion and subsequently, it allowed the expropriation
of the subject property. Aggrieved by the said order,
the heirs of Suguitan asserted that the City of
Mandaluyong may only exercise its delegated power
of eminent domain by means of an ordinance as
required by Section 19 of Republic Act No. 7160, and
not by means of a mere resolution.
The Court ruled that the basis for the exercise of the
power of eminent domain by local government units is
Section 19 of RA 7160 which provides that: "A local
government unit may, through its chief executive and
acting pursuant to an ordinance, exercise the power
of eminent domain for public use, purpose, or welfare
for the benefits of the poor and the landless, upon
payment of just compensation, pursuant to the
provisions of the Constitution and pertinent laws;
Provided, however, That the power of eminent domain
may not be exercised unless a valid and definite offer
has been previously made to the owner, and such
offer was not accepted; Provided, further, That the

local government unit may immediately take

possession of the property upon the filing of the
expropriation proceedings and upon making a deposit
with the proper court of at least fifteen percent (15%)
of the fair market value of the property based on the
current tax declaration of the property to be
expropriated; Provided, finally, That the amount to be
paid for the expropriated property shall be determined
by the proper court, based on the fair market value at
the time of the taking of the property. In the present
case, the City of Mandaluyong sought to exercise the
power of eminent domain over petitioners' property by
means of a resolution, in contravention of the first
requisite. The law in this case is clear and free from
ambiguity. Section 19 of the Code requires an
ordinance, not a resolution, for the exercise of the
power of eminent domain. Therefore, while the Court
remains conscious of the constitutional policy of
promoting local autonomy, it cannot grant judicial
sanction to a local government unit's exercise of its
delegated power of eminent domain in contravention
of the very law giving it such power. SECATH
SYLLABUS
1. POLITICAL LAW; POWER OF EMINENT DOMAIN;
ELUCIDATED. Eminent domain is the right or
power of a sovereign state to appropriate private
property to particular uses to promote public welfare.
It is an indispensable attribute of sovereignty; a power
grounded in the primary duty of government to serve
the common need and advance the general welfare.
Thus, the right of eminent domain appertains to every
independent government without the necessity for
constitutional recognition. The provisions found in
modern constitutions of civilized countries relating to
the taking of property for the public use do not by
implication grant the power to the government, but
limit a power which would otherwise be without limit.
Thus, our own Constitution provides that "[p]rivate
property shall not be taken for public use without just
compensation." Furthermore, the due process and
equal protection clauses act as additional safeguards
against the arbitrary exercise of this governmental
power.
2. ID.; ID.; AUTHORITY FOR THE EXERCISE
THEREOF MUST BE STRICTLY CONSTRUED.
Since the exercise of the power of eminent domain
affects an individual's right to private property, a
constitutionally-protected right necessary for the
preservation and enhancement of personal dignity

and intimately connected with the rights to life and

liberty, the need for its circumspect operation cannot
be overemphasized. In City of Manila vs. Chinese
Community of Manila we said: The exercise of the
right of eminent domain, whether directly by the State,
or by its authorized agents, is necessarily in
derogation of private rights, and the rule in that case
is that the authority must be strictly construed. No
species of property is held by individuals with greater
tenacity, and none is guarded by the constitution and
the laws more sedulously, than the right to the
freehold of inhabitants. When the legislature interferes
with that right, and, for greater public purposes,
appropriates the land of an individual without his
consent, the plain meaning of the law should not be
enlarged by doubt[ful] interpretation. (Bensley vs.
Mountainlake Water Co., 13 Cal., 306 and cases cited
[73 Am. Dec., 576].) The statutory power of taking
from the owner without his consent is one of the most
delicate exercise of governmental authority. It is to be
watched with jealous scrutiny. Important as the power
may be to the government, the inviolable sanctity
which all free constitutions attach to the right of
property of the citizens, constrains the strict
observance of the substantial provisions of the law
which are prescribed as modes of the exercise of the
power, and to protect it from abuse. . . . (Dillon on
Municipal Corporations [5th Ed.], Sec. 1040, and
cases cited; Tenorio vs. Manila Railroad Co., 22 Phil.,
411.)
3. ID.; ID.; LEGISLATIVE IN NATURE; MAY BE
VALIDLY DELEGATED TO LOCAL GOVERNMENT
UNITS. The power of eminent domain is essentially
legislative in nature. It is firmly settled, however, that
such power may be validly delegated to local
government units, other public entities and public
utilities, although the scope of this delegated
legislative power is necessarily narrower than that of
the delegating authority and may only be exercised in
strict compliance with the terms of the delegating law.
4. ID.; ID.; BASIS OF LOCAL GOVERNMENT UNITS
FOR THE EXERCISE THEREOF. The basis for the
exercise of the power of eminent domain by local
government units is Section 19 of RA 7160 which
provides that: A local government unit may, through its
chief executive and acting pursuant to an ordinance,
exercise the power of eminent domain for public use,
purpose, or welfare for the benefits of the poor and
the landless, upon payment of just compensation,
pursuant to the provisions of the Constitution and

pertinent laws; Provided, however, That the power of

eminent domain may not be exercised unless a valid
and definite offer has been previously made to the
owner, and such offer was not accepted; Provided,
further, That the local government unit may
immediately take possession of the property upon the
filing of the expropriation proceedings and upon
making a deposit with the proper court of at least
fifteen percent (15%) of the fair market value of the
property based on the current tax declaration of the
property to be expropriated; Provided, finally, That the
amount to be paid for the expropriated property shall
be determined by the proper court, based on the fair
market value at the time of the taking of the property.
5. ID.; ID.; COURTS SHOULD DETERMINE
WHETHER THE POWER OF EMINENT DOMAIN IS
BEING EXERCISED BY LOCAL GOVERNMENTS IN
ACCORDANCE WITH THE DELEGATING LAW.
Despite the existence of this legislative grant in favor
of local governments, it is still the duty of the courts to
determine whether the power of eminent domain is
being exercised in accordance with the delegating
law. In fact, the courts have adopted a more
censorious attitude in resolving questions involving
the proper exercise of this delegated power by local
bodies, as compared to instances when it is directly
exercised by the national legislature.
6. ID.; ID.; REQUISITES TO BE COMPLIED BY
LOCAL GOVERNMENT UNITS. The courts have
the obligation to determine whether the following
requisites have been complied with by the local
government unit concerned: 1. An ordinance is
enacted by the local legislative council authorizing the
local chief executive, in behalf of the local government
unit, to exercise the power of eminent domain or
pursue expropriation proceedings over a particular
private property. 2. The power of eminent domain is
exercised for public use, purpose or welfare, or for the
benefit of the poor and the landless. 3. There is
payment of just compensation, as required under
Section 9, Article III of the Constitution, and other
pertinent laws. 4. A valid and definite offer has been
previously made to the owner of the property sought
to be expropriated, but said offer was not accepted.
7. ID.; ID.; SECTION 19 OF Republic Act No. 7160
REQUIRES AN ORDINANCE, NOT A RESOLUTION
FOR EXERCISE THEREOF. The law in this case is
clear and free from ambiguity. Section 19 of the Code
requires an ordinance, not a resolution, for the

exercise of the power of eminent domain. . . . We

cannot uphold respondent's contention that an
ordinance is needed only to appropriate funds after
the court has determined the amount of just
compensation. An examination of the applicable law
will show that an ordinance is necessary to authorize
the filing of a complaint with the proper court since,
beginning at this point, the power of eminent domain
is already being exercised.
8.
ID.;
ORDINANCE
AND
RESOLUTION;
DIFFERENTIATED. We reiterate our ruling in
Municipality of Paraaque v. V.M. Realty Corporation
regarding the distinction between an ordinance and a
resolution. In that 1998 case we held that: We are not
convinced by petitioner's insistence that the terms
"resolution" and "ordinance" are synonymous. A
municipal ordinance is different from a resolution. An
ordinance is a law, but a resolution is merely a
declaration of the sentiment or opinion of a lawmaking
body on a specific matter. An ordinance possesses a
general and permanent character, but a resolution is
temporary in nature. Additionally, the two are enacted
differently a third reading is necessary for an
ordinance, but not for a resolution, unless decided
otherwise by a majority of all the Sanggunian
members.

9. REMEDIAL LAW; SPECIAL CIVIL ACTION;

EXPROPRIATION; STAGES OF PROCEEDINGS.
Rule 67 of the 1997 Revised Rules of Court reveals
that expropriation proceedings are comprised of two
stages: (1) the first is concerned with the
determination of the authority of the plaintiff to
exercise the power of eminent domain and the
propriety of its exercise in the context of the facts
involved in the suit; it ends with an order, if not in a
dismissal of the action, of condemnation declaring
that the plaintiff has a lawful right to take the property
sought to be condemned, for the public use or
purpose described in the complaint, upon the
payment of just compensation to be determined as of
the date of the filing of the complaint; (2) the second
phase is concerned with the determination by the
court of the just compensation for the property sought
to be taken; this is done by the court with the
assistance of not more than three (3) commissioners.

10. ID.; ID.; ID.; ID.; DETERMINATION AND AWARD

OF JUST COMPENSATION IS IN LAST STAGE.
Clearly, although the determination and award of just
compensation to the defendant is indispensable to the
transfer of ownership in favor of the plaintiff, it is but
the last stage of the expropriation proceedings, which
cannot be arrived at without an initial finding by the
court that the plaintiff has a lawful right to take the
property sought to be expropriated, for the public use
or purpose described in the complaint. An order of
condemnation or dismissal at this stage would be
final, resolving the question of whether or not the
plaintiff has properly and legally exercised its power of
eminent domain.
11. POLITICAL LAW; EMINENT DOMAIN; LOCAL
GOVERNMENT
UNITS;
ORDINANCE
AUTHORIZING LOCAL CHIEF EXECUTIVE TO
EXERCISE POWER OF EMINENT DOMAIN IS
NECESSARY PRIOR TO THE FILING OF
COMPLAINT. Also, it is noted that as soon as the
complaint is filed the plaintiff shall already have the
right to enter upon the possession of the real property
involved upon depositing with the court at least fifteen
percent (15%) of the fair market value of the property
based on the current tax declaration of the property to
be
expropriated.
Therefore,
an
ordinance
promulgated by the local legislative body authorizing
its local chief executive to exercise the power of
eminent domain is necessary prior to the filing by the
latter of the complaint with the proper court, and not
only after the court has determined the amount of just
compensation to which the defendant is entitled.
12. ID.; ID.; ID.; SECTION 19 OF Republic Act No.
7160 PREVAILS OVER IMPLEMENTING RULES
AND REGULATIONS. Neither is respondent's
position improved by its reliance upon Article 36 (a),
Rule VI of the IRR which provides that: "If the LGU
fails to acquire a private property for public use,
purpose, or welfare through purchase, LGU may
expropriate said property through a resolution of the
sanggunian authorizing its chief executive to initiate
expropriation proceedings." The Court has already
discussed this inconsistency between the Code and
the IRR, which is more apparent than real, in
Municipality of Paraaque vs. V.M. Realty
Corporation, which we quote hereunder: "Petitioner
relies on Article 36, Rule VI of the Implementing
Rules, which requires only a resolution to authorize
an LGU to exercise eminent domain. This is clearly
misplaced, because Section 19 of RA 7160, the law

itself, surely prevails over said rule which merely

seeks to implement it. It is axiomatic that the clear
letter of the law is controlling and cannot be amended
by a mere administrative rule issued for its
implementation. Besides, what the discrepancy
seems to indicate is a mere oversight in the wording
of the implementing rules, since Article 32, Rule VI
thereof, also requires that, in exercising the power of
eminent domain, the chief executive of the LGU must
act pursuant to an ordinance." IDASHa
13. ID.; ID.; CANNOT BE EXERCISED BY LOCAL
GOVERNMENT UNITS IN CONTRAVENTION OF
THE VERY LAW GIVING IT. While we remain
conscious of the constitutional policy of promoting
local autonomy, we cannot grant judicial sanction to a
local government unit's exercise of its delegated
power of eminent domain in contravention of the very
law giving it such power.
14. REMEDIAL LAW; SPECIAL CIVIL ACTION;
EXPROPRIATION; DISMISSED PETITION CAN BE
REINSTATED BY LOCAL GOVERNMENT UNITS
AFTER IT COMPLIED WITH ALL THE LEGAL
REQUIREMENTS. It should be noted, however,
that our ruling in this case will not preclude the City of
Mandaluyong from enacting the necessary ordinance
and thereafter reinstituting expropriation proceedings,
for so long as it has complied with all other legal
requirements.

Accordingly, in order to ascertain the just

compensation, the parties are hereby directed to
submit to the Court within fifteen (15) days from notice
hereof, a list of independent appraisers from which
the Court will select three (3) to be appointed as
Commissioners, pursuant to Section 5, Rule 67,
Rules of Court. prcd
SO ORDERED. 2
It is undisputed by the parties that on October 13,
1994, the Sangguniang Panlungsod of Mandaluyong
City issued Resolution No. 396, S-1994 3 authorizing
then Mayor Benjamin S. Abalos to institute
expropriation proceedings over the property of Alberto
Suguitan located at Boni Avenue and Sto. Rosario
streets in Mandaluyong City with an area of 414
square meters and more particularly described under
Transfer Certificate of Title No. 56264 of the Registry
of Deeds of Metro Manila District II. The intended
purpose of the expropriation was the expansion of the
Mandaluyong Medical Center.
Mayor Benjamin Abalos wrote Alberto Suguitan a
letter dated January 20, 1995 offering to buy his
property, but Suguitan refused to sell. 4 Consequently,
on March 13, 1995, the city of Mandaluyong filed a
complaint 5 for expropriation with the Regional Trial
Court of Pasig. The case was docketed as SCA No.
875.

DECISION
GONZAGA-REYES, J p:
In this petition for review on certiorari under Rule 45,
petitioners 1 pray for the reversal of the Order dated
July 28, 1998 issued by Branch 155 of the Regional
Trial Court of Pasig in SCA No. 875 entitled "City of
Mandaluyong v. Alberto S. Suguitan, the dispositive
portion of which reads as follows:
WHEREFORE, in view of the foregoing, the instant
Motion to Dismiss is hereby DENIED and an ORDER
OF CONDEMNATION is hereby issued declaring that
the plaintiff, City of Mandaluyong, has a lawful right to
take the subject parcel of land together with existing
improvements thereon more specifically covered by
Transfer Certificate Of Title No. 56264 of the Registry
of Deeds for Metro Manila District II for the public use
or purpose as stated in the Complaint, upon payment
of just compensation.

Suguitan filed a motion to dismiss 6 the complaint

based on the following grounds (1) the power of
eminent domain is not being exercised in accordance
with law; (2) there is no public necessity to warrant
expropriation of subject property; (3) the City of
Mandaluyong seeks to expropriate the said property
without payment of just compensation; (4) the City of
Mandaluyong has no budget and appropriation for the
payment of the property being expropriated; and (5)
expropriation of Suguitan's property is but a ploy of
Mayor Benjamin Abalos to acquire the same for his
personal use. Respondent filed its comment and
opposition to the motion. On October 24, 1995, the
trial court denied Suguitan's motion to dismiss. 7
On November 14, 1995, acting upon a motion filed by
the respondent, the trial court issued an order
allowing the City of Mandaluyong to take immediate
possession of Suguitan's property upon the deposit of
P621,000 representing 15% of the fair market value of

the subject property based upon the current tax

declaration of such property. On December 15, 1995,
the City of Mandaluyong assumed possession of the
subject property by virtue of a writ of possession
issued by the trial court on December 14, 1995. 8 On
July 28, 1998, the court granted the assailed order of
expropriation.
Petitioners assert that the city of Mandaluyong may
only exercise its delegated power of eminent domain
by means of an ordinance as required by Section 19
of Republic Act (RA) No. 7160, 9 and not by means of
a mere resolution. 10 Respondent contends, however,
that it validly and legally exercised its power of
eminent domain; that pursuant to Article 36, Rule VI of
the Implementing Rules and Regulations (IRR) of RA
7160, a resolution is a sufficient antecedent for the
filing of expropriation proceedings with the Regional
Trial Court. Respondent's position, which was upheld
by the trial court, was explained, thus: 11
. . . in the exercise of the respondent City of
Mandaluyong's power of eminent domain, a
"resolution" empowering the City Mayor to initiate
such expropriation proceedings and thereafter when
the court has already determine[d] with certainty the
amount of just compensation to be paid for the
property expropriated, then follows an Ordinance of
the Sanggunian Panlungsod appropriating funds for
the payment of the expropriated property. Admittedly,
title to the property expropriated shall pass from the
owner to the expropriator only upon full payment of
the just compensation. 12
Petitioners refute respondent's contention that only a
resolution is necessary upon the initiation of
expropriation proceedings and that an ordinance is
required only in order to appropriate the funds for the
payment of just compensation, explaining that the
resolution mentioned in Article 36 of the IRR is for
purposes of granting administrative authority to the
local chief executive to file the expropriation case in
court and to represent the local government unit in
such case, but does not dispense with the necessity
of an ordinance for the exercise of the power of
eminent domain under Section 19 of the Code. 13
The petition is imbued with merit. LexLib

Eminent domain is the right or power of a sovereign

state to appropriate private property to particular uses
to promote public welfare. 14 It is an indispensable
attribute of sovereignty; a power grounded in the
primary duty of government to serve the common
need and advance the general welfare. 15 Thus, the
right of eminent domain appertains to every
independent government without the necessity for
constitutional recognition. 16 The provisions found in
modern constitutions of civilized countries relating to
the taking of property for the public use do not by
implication grant the power to the government, but
limit a power which would otherwise be without limit.
17 Thus, our own Constitution provides that "[p]rivate
property shall not be taken for public use without just
compensation." 18 Furthermore, the due process and
equal protection clauses 19 act as additional
safeguards against the arbitrary exercise of this
governmental power.
Since the exercise of the power of eminent domain
affects an individual's right to private property, a
constitutionally-protected right necessary for the
preservation and enhancement of personal dignity
and intimately connected with the rights to life and
liberty, 20 the need for its circumspect operation
cannot be overemphasized. In City of Manila vs.
Chinese Community of Manila we said: 21
The exercise of the right of eminent domain, whether
directly by the State, or by its authorized agents, is
necessarily in derogation of private rights, and the
rule in that case is that the authority must be strictly
construed. No species of property is held by
individuals with greater tenacity, and none is guarded
by the constitution and the laws more sedulously, than
the right to the freehold of inhabitants. When the
legislature interferes with that right, and, for greater
public purposes, appropriates the land of an individual
without his consent, the plain meaning of the law
should not be enlarged by doubt[ful] interpretation.
(Bensley vs. Mountainlake Water Co., 13 Cal., 306
and cases cited [73 Am. Dec., 576].)
The statutory power of taking property from the owner
without his consent is one of the most delicate
exercise of governmental authority. It is to be watched
with jealous scrutiny. Important as the power may be
to the government, the inviolable sanctity which all
free constitutions attach to the right of property of the
citizens, constrains the strict observance of the
substantial provisions of the law which are prescribed

as modes of the exercise of the power, and to protect

it from abuse. . . . (Dillon on Municipal Corporations
[5th Ed.], Sec. 1040, and cases cited; Tenorio vs.
Manila Railroad Co., 22 Phil., 411.)
The power of eminent domain is essentially legislative
in nature. It is firmly settled, however, that such power
may be validly delegated to local government units,
other public entities and public utilities, although the
scope of this delegated legislative power is
necessarily narrower than that of the delegating
authority and may only be exercised in strict
compliance with the terms of the delegating law. 22

The courts have the obligation to determine whether

the following requisites have been complied with by
the local government unit concerned:
1. An ordinance is enacted by the local legislative
council authorizing the local chief executive, in behalf
of the local government unit, to exercise the power of
eminent domain or pursue expropriation proceedings
over a particular private property.
2. The power of eminent domain is exercised for
public use, purpose or welfare, or for the benefit of the
poor and the landless.

The basis for the exercise of the power of eminent

domain by local government units is Section 19 of RA
7160 which provides that:

3. There is payment of just compensation, as required

under Section 9, Article III of the Constitution, and
other pertinent laws.

A local government unit may, through its chief

executive and acting pursuant to an ordinance,
exercise the power of eminent domain for public use,
purpose, or welfare for the benefits of the poor and
the landless, upon payment of just compensation,
pursuant to the provisions of the Constitution and
pertinent laws; Provided, however, That the power of
eminent domain may not be exercised unless a valid
and definite offer has been previously made to the
owner, and such offer was not accepted; Provided,
further, That the local government unit may
immediately take possession of the property upon the
filing of the expropriation proceedings and upon
making a deposit with the proper court of at least
fifteen percent (15%) of the fair market value of the
property based on the current tax declaration of the
property to be expropriated; Provided, finally, That the
amount to be paid for the expropriated property shall
be determined by the proper court, based on the fair
market value at the time of the taking of the property.
cda

4. A valid and definite offer has been previously made

to the owner of the property sought to be
expropriated, but said offer was not accepted. 25

Despite the existence of this legislative grant in favor

of local governments, it is still the duty of the courts to
determine whether the power of eminent domain is
being exercised in accordance with the delegating
law. 23 In fact, the courts have adopted a more
censorious attitude in resolving questions involving
the proper exercise of this delegated power by local
bodies, as compared to instances when it is directly
exercised by the national legislature. 24

In the present case, the City of Mandaluyong seeks to

exercise the power of eminent domain over
petitioners' property by means of a resolution, in
contravention of the first requisite. The law in this
case is clear and free from ambiguity. Section 19 of
the Code requires an ordinance, not a resolution, for
the exercise of the power of eminent domain. We
reiterate our ruling in Municipality of Paraaque v.
V.M. Realty Corporation 26 regarding the distinction
between an ordinance and a resolution. In that 1998
case we held that:
We are not convinced by petitioner's insistence that
the terms "resolution" and "ordinance" are
synonymous. A municipal ordinance is different from a
resolution. An ordinance is a law, but a resolution is
merely a declaration of the sentiment or opinion of a
lawmaking body on a specific matter. An ordinance
possesses a general and permanent character, but a
resolution is temporary in nature. Additionally, the two
are enacted differently a third reading is necessary
for an ordinance, but not for a resolution, unless
decided otherwise by a majority of all the Sanggunian
members.
We cannot uphold respondent's contention that an
ordinance is needed only to appropriate funds after
the court has determined the amount of just
compensation. An examination of the applicable law
will show that an ordinance is necessary to authorize

the filing of a complaint with the proper court since,

beginning at this point, the power of eminent domain
is already being exercised.
Rule 67 of the 1997 Revised Rules of Court reveals
that expropriation proceedings are comprised of two
stages: llcd
(1) the first is concerned with the determination of the
authority of the plaintiff to exercise the power of
eminent domain and the propriety of its exercise in
the context of the facts involved in the suit; it ends
with an order, if not in a dismissal of the action, of
condemnation declaring that the plaintiff has a lawful
right to take the property sought to be condemned, for
the public use or purpose described in the complaint,
upon the payment of just compensation to be
determined as of the date of the filing of the
complaint;
(2) the second phase is concerned with the
determination by the court of the just compensation
for the property sought to be taken; this is done by the
court with the assistance of not more than three (3)
commissioners. 27
Clearly, although the determination and award of just
compensation to the defendant is indispensable to the
transfer of ownership in favor of the plaintiff, it is but
the last stage of the expropriation proceedings, which
cannot be arrived at without an initial finding by the
court that the plaintiff has a lawful right to take the
property sought to be expropriated, for the public use
or purpose described in the complaint. An order of
condemnation or dismissal at this stage would be
final, resolving the question of whether or not the
plaintiff has properly and legally exercised its power of
eminent domain.
Also, it is noted that as soon as the complaint is filed
the plaintiff shall already have the right to enter upon
the possession of the real property involved upon
depositing with the court at least fifteen percent (15%)
of the fair market value of the property based on the
current tax declaration of the property to be
expropriated.
28
Therefore,
an
ordinance
promulgated by the local legislative body authorizing
its local chief executive to exercise the power of
eminent domain is necessary prior to the filing by the
latter of the complaint with the proper court, and not
only after the court has determined the amount of just
compensation to which the defendant is entitled.

Melo, Vitug, Panganiban and Purisima, JJ., concur.

Neither is respondent's position improved by its
reliance upon Article 36 (a), Rule VI of the IRR which
provides that:
If the LGU fails to acquire a private property for public
use, purpose, or welfare through purchase, LGU may
expropriate said property through a resolution of the
sanggunian authorizing its chief executive to initiate
expropriation proceedings.
The Court has already discussed this inconsistency
between the Code and the IRR, which is more
apparent than real, in Municipality of Paraaque vs.
V.M. Realty Corporation, 29 which we quote
hereunder:
Petitioner relies on Article 36, Rule VI of the
Implementing Rules, which requires only a resolution
to authorize an LGU to exercise eminent domain. This
is clearly misplaced, because Section 19 of RA 7160,
the law itself, surely prevails over said rule which
merely seeks to implement it. It is axiomatic that the
clear letter of the law is controlling and cannot be
amended by a mere administrative rule issued for its
implementation. Besides, what the discrepancy
seems to indicate is a mere oversight in the wording
of the implementing rules, since Article 32, Rule VI
thereof, also requires that, in exercising the power of
eminent domain, the chief executive of the LGU must
act pursuant to an ordinance.
Therefore, while we remain conscious of the
constitutional policy of promoting local autonomy, we
cannot grant judicial sanction to a local government
unit's exercise of its delegated power of eminent
domain in contravention of the very law giving it such
power.
It should be noted, however, that our ruling in this
case will not preclude the City of Mandaluyong from
enacting the necessary ordinance and thereafter
reinstituting expropriation proceedings, for so long as
it has complied with all other legal requirements. 30
WHEREFORE, the petition is hereby GRANTED. The
July 28, 1998 decision of Branch 155 of the Regional
Trial Court of Pasig in SCA No. 875 is hereby
REVERSED and SET ASIDE. LLpr
SO ORDERED.

||| (Heirs of Suguitan v. City of Mandaluyong, G.R. No.

135087, March 14, 2000)

government unit may therefore exercise the power to

expropriate private property only when authorized by
Congress and subject to the latter's control and
restraints, imposed through the law conferring the
power or in other legislations. AIDTHC
FIRST DIVISION
[G.R. No. 127820. July 20, 1998.]
MUNICIPALITY OF PARAAQUE, petitioner, vs.
V.M. REALTY CORPORATION, respondent.
Leo Luis P. Mendoza for petitioner.
Robiso & Reyes for respondent.
SYNOPSIS
Pursuant to Sangguniang Bayan Resolution No. 9395, Series of 1993, the Municipality of Paraaque filed
with the Regional Trial Court of Makati, Branch 134,
on September 20, 1993 a complaint for expropriation
against private respondent over two parcels of land
with a combined area of about 10,000 square meters
located at Wakas, San Dionisio, Paraaque, Metro
Manila and covered by Torrens Certificate of Title No.
48700. Allegedly, the complaint was filed for the
purpose of alleviating the living conditions of the
underprivileged by providing homes for the homeless
through a socialized housing project.
In an Order dated February 4, 1994, the trial court
authorized petitioner to take possession of the subject
property upon deposit with its clerk of court of an
amount equivalent to 15 percent of its fair market
value based on its current tax declaration. Private
respondent filed its answer alleging in the main that
the complaint failed to state a cause of action
because it was filed pursuant to a resolution and not
to an ordinance as required by the Local Government
Code. The trial court then nullified its February 4,
1994 order and dismissed the case. On appeal, the
Court of Appeals affirmed the trial court's resolution.
Hence, this petition.
The Supreme Court held that the petition is not
meritorious. The power of eminent domain is lodged
in the legislative branch of government which may
delegate the exercise thereof to local government
units, other public entities and public utilities. A local

A local government unit, like the Municipality of

Paraaque, cannot authorize an expropriation of
private property through a mere resolution of its
lawmaking body. The Local Government Code
expressly and clearly requires an ordinance or a law
for the purpose. A municipal ordinance is different
from a resolution. An ordinance is a law, but a
resolution is merely a declaration of the sentiment or
opinion of a lawmaking body on a specific matter. The
fact that there is no cause of action is evident from the
face of the complaint for expropriation which was
based on a mere resolution. The absence of an
ordinance authorizing the same is equivalent to lack
of cause of action. On the other hand, the principle of
res judicata does not bar subsequent proceedings for
the expropriation of the same property when all the
legal requirements for its valid exercise are complied
with.
SYLLABUS
1. CONSTITUTIONAL LAW; EMINENT DOMAIN;
EXERCISE OF THE POWER OF EMINENT DOMAIN
BY AN LGU; A MUNICIPALITY MAY EXERCISE THE
POWER OF EMINENT DOMAIN PURSUANT ONLY
TO AN ORDINANCE AND NOT A MERE
RESOLUTION. Section 19 of RA 7160, which
delegates to LGUs the power of eminent domain, also
lays down the parameters for its exercise. It provides
as follows: "Section 19. Eminent Domain. A local
government unit may, through its chief executive and
acting pursuant to an ordinance, exercise the power
of eminent domain for public use, or purpose, or
welfare for the benefit of the poor and the landless,
upon payment of just compensation, pursuant to the
provisions of the Constitution and pertinent laws: . . .
In the case at bar, the local chief executive sought to
exercise the power of eminent domain pursuant to a
resolution of the municipal council. Thus, there was
no compliance with the first requisite that the mayor
be authorized through an ordinance. If Congress
intended to allow LGUs to exercise eminent domain
through a mere resolution, it would have simply
adopted the language of the previous Local
Government Code. But Congress did not. In a clear
divergence from the previous Local Government

Code, Section 19 of RA 7160 categorically requires

that the local chief executive act pursuant to an
ordinance.
2. REMEDIAL LAW; CIVIL PROCEDURE; CAUSE OF
ACTION; PETITIONER'S COMPLAINT DOES NOT
STATE A CAUSE OF ACTION; REASON. It is
hornbook doctrine that ". . . in a motion to dismiss
based on the ground that the complaint fails to state a
cause of action, the question submitted before the
court for determination is the sufficiency of the
allegations in the complaint itself. Whether those
allegations are true or not is beside the point, for their
truth is hypothetically admitted by the motion. The
issue rather is: admitting them to be true, may the
court render a valid judgment in accordance with the
prayer of the complaint?" The fact that there is no
cause of action is evident from the face of the
Complaint for expropriation which was based on a
mere resolution. The absence of an ordinance
authorizing the same is equivalent to lack of cause of
action. Consequently, the Court of Appeals committed
no reversible error in affirming the trial court's
Decision which dismissed the expropriation suit.
3. ID.; EMINENT DOMAIN NOT BARRED BY RES
JUDICATA. The Court holds that the principle of
res judicata, which finds application in generally all
cases and proceedings, cannot bar the right of the
State or its agent to expropriate private property. The
very nature of eminent domain, as an inherent power
of the State, dictates that the right to exercise the
power be absolute and unfettered even by a prior
judgment or res judicata. The scope of eminent
domain is plenary and, like police power, can "reach
every form of property which the State might need for
public use." All separate interests of individuals in
property are held by the government under this tacit
agreement or implied reservation. Notwithstanding the
grant to individuals, the eminent domain, the highest
and most exact idea of property, remains in the
government, or in the aggregate body of the people in
their sovereign capacity; and they have the right to
resume the possession of the property whenever the
public interest requires it." Thus, the State or its
authorized agent cannot be forever barred from
exercising said right by reason alone of previous noncompliance with any legal requirement.
DECISION
PANGANIBAN, J p:

A local government unit (LGU), like the Municipality of

Paraaque cannot authorize an expropriation of
private property through a mere resolution of its
lawmaking body. The Local Government Code
expressly and clearly requires an ordinance or a local
law for the purpose. A resolution that merely
expresses the sentiment or opinion of the Municipal
Council will not suffice. On the other hand, the
principle of res judicata does not bar subsequent
proceedings for the expropriation of the same
property when all the legal requirements for its valid
exercise are complied with. LLphil
Statement of the Case
These principles are applied by this Court in resolving
this petition for review on certiorari of the July 22,
1996 Decision 1 of the Court of Appeals 2 in CA GR
CV No. 48048, which affirmed in toto 3 the Regional
Trial Court's August 9, 1994 Resolution. 4 The trial
court dismissed the expropriation suit as follows:
"The right of the plaintiff to exercise the power of
eminent domain is not disputed. However, such right
may be exercised only pursuant to an Ordinance
(Sec. 19, R.A. No. 7160). In the instant case, there is
no such ordinance passed by the Municipal Council of
Paraaque enabling the Municipality, thru its Chief
Executive, to exercise the power of eminent domain.
The complaint, therefore, states no cause of action.
Assuming that plaintiff has a cause of action, the
same is barred by a prior judgment. On September
29, 1987, the plaintiff filed a complaint for
expropriation involving the same parcels of land which
was docketed as Civil Case No. 17939 of this Court
(page 26, record). Said case was dismissed with
prejudice on May 18, 1988 (page 39, record). The
order of dismissal was not appealed, hence, the same
became final. The plaintiff can not be allowed to
pursue the present action without violating the
principle of [r]es [j]udicata. While defendant in Civil
Case No. 17939 was Limpan Investment Corporation,
the doctrine of res judicata still applies because the
judgment in said case (C.C. No. 17939) is conclusive
between the parties and their successors-in-interest
(Vda. de Buncio vs. Estate of the late Anita de Leon).
The herein defendant is the successor-in-interest of
Limpan Investment Corporation as shown by the
'Deed of Assignment Exchange' executed on June 13,
1990.

WHEREFORE,
defendant's
motion
for
reconsideration is hereby granted. The order dated
February 4, 1994 is vacated and set aside.
This case is hereby dismissed. No pronouncement as
to costs.
SO ORDERED." 5
Factual Antecedents
Pursuant to Sangguniang Bayan Resolution No. 9395, Series of 1993, 6 the Municipality of Paraaque
filed on September 20, 1993, a Complaint for
expropriation 7 against Private Respondent V.M.
Realty Corporation, over two parcels of land (Lots 2A-2 and 2-B-1 of Subdivision Plan Psd-17917), with a
combined area of about 10,000 square meters,
located at Wakas, San Dionisio, Paraaque, Metro
Manila, and covered by Torrens Certificate of Title No.
48700. Allegedly, the complaint was filed "for the
purpose of alleviating the living conditions of the
underprivileged by providing homes for the homeless
through
a
socialized
housing
project."
8
Parenthetically, it was also for this stated purpose that
petitioner, pursuant to its Sangguniang Bayan
Resolution No. 577, Series of 1991, 9 previously
made an offer to enter into a negotiated sale of the
property with private respondent, which the latter did
not accept. 10
Finding the Complaint sufficient in form and
substance, the Regional Trial Court of Makati, Branch
134, issued an Order dated January 10, 1994, 11
giving it due course. Acting on petitioner's motion said
court issued an Order dated February 4, 1994, 12
authorizing petitioner to take possession of the
subject property upon deposit with its clerk of court of
an amount equivalent to 15 percent of its fair market
value based on its current tax declaration.
On February 21, 1994, private respondent filed its
Answer containing affirmative defenses and a
counterclaim, 13 alleging in the main that (a) the
complaint failed to state a cause of action because it
was filed pursuant to a resolution and not to an
ordinance as required by RA 7160 (the Local
Government Code); and (b) the cause of action, if
any, was barred by a prior judgment or res judicata.
On private respondent's motion, its Answer was
treated as a motion to dismiss. 14 On March 24,
1994, 15 petitioner filed its opposition, stressing that
the trial court's Order dated February 4, 1994 was in

accord with Section 19 of RA 7160, and that the

principle of res judicata was not applicable.
Thereafter, the trial court issued its August 9, 1994
Resolution 16 nullifying its February 4, 1994 Order
and dismissing the case. Petitioner's motions for
reconsideration and transfer of venue were denied by
the trial court in a Resolution dated December 2,
1994. 17 Petitioner then appealed to Respondent
Court, raising the following issues:
"1. Whether or not the Resolution of the Paraaque
Municipal Council No. 93-95, Series of 1993 is a
substantial compliance of the statutory requirement of
Section 19, R.A. 7180 [sic] in the exercise of the
power of eminent domain by the plaintiff-appellant.
2. Whether or not the complaint in this case states no
cause of action.
3. Whether or not the strict adherence to the literal
observance to the rule of procedure resulted in
technicality standing in the way of substantial justice.
4. Whether or not the principle of res judicata is
applicable to the present case." 18
As previously mentioned, the Court of Appeals
affirmed in toto the trial court's Decision. Respondent
Court, in its assailed Resolution promulgated on
January 8, 1997, 19 denied petitioner's Motion for
Reconsideration for lack of merit.
Hence, this appeal. 20
The Issues
Before this Court, petitioner posits two issues, viz.:
"1. A resolution duly approved by the municipal
council has the same force and effect of an ordinance
and will not deprive an expropriation case of a valid
cause of action.
2. The principle of res judicata as a ground for
dismissal of case is not applicable when public
interest is primarily involved." 21
The Court's Ruling
The petition is not meritorious.
First Issue:
Resolution Different from an Ordinance

Petitioner contends that a resolution approved by the

municipal council for the purpose of initiating an
expropriation case "substantially complies with the
requirements of the law" 22 because the terms
"ordinance" and "resolution" are synonymous for "the
purpose of bestowing authority [on] the local
government unit through its chief executive to initiate
the expropriation proceedings in court in the exercise
of the power of eminent domain." 23 Petitioner seeks
to bolster this contention by citing Article 36, Rule VI
of the Rules and Regulations Implementing the Local
Government Code, which provides: "If the LGU fails to
acquire a private property for public use, purpose, or
welfare through purchase, the LGU may expropriate
said property through a resolution of the Sanggunian
authorizing its chief executive to initiate expropriation
proceedings." 24 (Emphasis supplied.)
The Court disagrees. The power of eminent domain is
lodged in the legislative branch of government, which
may delegate the exercise thereof to LGUs, other
public entities and public utilities. 25 An LGU may
therefore exercise the power to expropriate private
property only when authorized by Congress and
subject to the latter's control and restraints imposed
"through the law conferring the power or in other
legislations." 26 In this case, Section 19 of RA 7160,
which delegates to LGUs the power of eminent
domain, also lays down the parameters for its
exercise. It provides as follows:
"Section 19. Eminent Domain. A local government
unit may, through its chief executive and acting
pursuant to an ordinance, exercise the power of
eminent domain for public use, or purpose, or welfare
for the benefit of the poor and the landless, upon
payment of just compensation, pursuant to the
provisions of the Constitution and pertinent laws.
Provided, however, That the power of eminent domain
may not be exercised unless a valid and definite offer
has been previously made to the owner, and such
offer was not accepted: Provided, further, That the
local government unit may immediately take
possession of the property upon the filing of the
expropriation proceedings and upon making a deposit
with the proper court of at least fifteen percent (15%)
of the fair market value of the property based on the
current tax declaration of the property to be
expropriated: Provided, finally, That, the amount to be
paid for the expropriated .property shall be
determined by the proper court, based on the fair

market value at the time of the taking of the property."

(Emphasis supplied)

decided otherwise by a majority of all the Sanggunian

members. 33

Thus, the following essential requisites must concur

before an LGU can exercise the power of eminent
domain:

If Congress intended to allow LGUs to exercise

eminent domain through a mere resolution, it would
have simply adopted the language of the previous
Local Government Code. But Congress did not. In a
clear divergence from the previous Local Government
Code, Section 19 of RA 7160 categorically requires
that the local chief executive act pursuant to an
ordinance. Indeed, "[l]egislative intent is determined
principally from the language of a statute. Where the
language of a statute is clear and unambiguous, the
law is applied according to its express terms, and
interpretation would be resorted to only where a literal
interpretation would be either impossible or absurd or
would lead to an injustice." 34 In the instant case,
there is no reason to depart from this rule, since the
law requiring an ordinance is not at all impossible,
absurd, or unjust.

1. An ordinance is enacted by the local legislative

council authorizing the local chief executive, in behalf
of the LGU, to exercise the power of eminent domain
or pursue expropriation proceedings over a particular
private property. LexLib
2. The power of eminent domain is exercised for
public use, purpose or welfare, or for the benefit of the
poor and the landless.
3. There is payment of just compensation, as required
under Section 9, Article III of the Constitution, and
other pertinent laws.
4. A valid and definite offer has been previously made
to the owner of the property sought to be
expropriated, but said offer was not accepted. 27
In the case at bar, the local chief executive sought to
exercise the power of eminent domain pursuant to a
resolution of the municipal council. Thus, there was
no compliance with the first requisite that the mayor
be authorized through an ordinance. Petitioner cites
Camarines Sur vs. Court of Appeals 28 to show that a
resolution may suffice to support the exercise of
eminent domain by an LGU. 29 This case, however, is
not in point because the applicable law at that time
was BP 337, 30 the previous Local Government
Code, which had provided that a mere resolution
would enable an LGU to exercise eminent domain. In
contrast, RA 7160, 31 the present Local Government
Code which was already in force when the Complaint
for expropriation was filed, explicitly required an
ordinance for this purpose.
We are not convinced by petitioner's insistence that
the terms "resolution" and "ordinance" are
synonymous. A municipal ordinance is different from a
resolution. An ordinance is a law, but a resolution is
merely a declaration of the sentiment or opinion of a
lawmaking body on a specific matter. 32 An ordinance
possesses a general and permanent character, but a
resolution is temporary in nature. Additionally, the two
are enacted differently a third reading is necessary
for an ordinance, but not for a resolution, unless

Moreover, the power of eminent domain necessarily

involves a derogation of a fundamental or private right
of the people. 35 Accordingly, the manifest change in
the legislative language from "resolution" under the
BP 337 to "ordinance" under RA 7160 demands a
strict construction. "No species of property is held by
individuals with greater tenacity, and is guarded by
the Constitution and laws more sedulously, than the
right to the freehold of inhabitants. When the
legislature interferes with that right and, for greater
public purposes, appropriates the land of an individual
without his consent, the plain meaning of the law
should not be enlarged by doubtful interpretation." 36
Petitioner relies on Article 36, Rule VI of the
Implementing Rules, which requires only a resolution
to authorize an LGU to exercise eminent domain. This
is clearly misplaced, because Section 19 of RA 7160,
the law itself, surely prevails over said rule which
merely seeks to implement it. 37 It is axiomatic that
the clear letter of the law is controlling and cannot be
amended by a mere administrative rule issued for its
implementation. Besides, what the discrepancy
seems to indicate is a mere oversight in the wording
of the implementing rules, since Article 32, Rule VI
thereof, also requires that, in exercising the power of
eminent domain, the chief executive of the LGU must
act pursuant to an ordinance.
In this ruling, the Court does not diminish the policy
embodied in Section 2, Article X of the Constitution,

which provides that "territorial and political

subdivisions shall enjoy local autonomy." It merely
upholds the law as worded in RA 7160. We stress that
an LGU is created by law and all its powers and rights
are sourced therefrom. It has therefore no power to
amend or act beyond the authority given and the
limitations imposed on it by law. Strictly speaking, the
power of eminent domain delegated to an LGU is in
reality not eminent but "inferior" domain, since it must
conform to the limits imposed by the delegation, and
thus partakes only of a share in eminent domain. 38
Indeed, "the national legislature is still the principal of
the local government units, which cannot defy its will
or modify or violate it." 39

was based on a mere resolution. The absence of an

ordinance authorizing the same is equivalent to lack
of cause of action. Consequently, the Court of
Appeals committed no reversible error in affirming the
trial court's Decision which dismissed the
expropriation suit.

Complaint Does Not

Be that as it may, the Court holds that the principle of

res judicata, which finds application in generally all
cases and proceedings, 45 cannot bar the right of the
State or its agent to expropriate private property. The
very nature of eminent domain, as an inherent power
of the State, dictates that the right to exercise the
power be absolute and unfettered even by a prior
judgment or res judicata. The scope of eminent
domain is plenary and, like police power, can "reach
every form of property which the State might need for
public use." 46 "All separate interests of individuals in
property are held of the government under this tacit
agreement or implied reservation. Notwithstanding the
grant to individuals, the eminent domain, the highest
and most exact idea of property, remains in the
government, or in the aggregate body of the people in
their sovereign capacity; and they have the right to
resume the possession of the property whenever the
public interest requires it." 47 Thus, the State or its
authorized agent cannot be forever barred from
exercising said right by reason alone of previous noncompliance with any legal requirement.

State a Cause of Action

In its Brief filed before Respondent Court, petitioner
argues that its Sanggunian Bayan passed an
ordinance on October 11, 1994 which reiterated its
Resolution No. 93-35, Series of 1993, and ratified all
the acts of its mayor regarding the subject
expropriation. 40
This argument is bereft of merit. In the first place,
petitioner merely alleged the existence of such an
ordinance, but it did not present any certified true
copy thereof. In the second place, petitioner did not
raise this point before this Court. In fact, it was
mentioned by private respondent, and only in passing.
41 In any event, this allegation does not cure the
inherent defect of petitioner's Complaint for
expropriation filed on September 23, 1993. It is
hornbook doctrine that
". . . in a motion to dismiss based on the ground that
the complaint fails to state a cause of action, the
question submitted before the court for determination
is the sufficiency of the allegations in the complaint
itself. Whether those allegations are true or not is
beside the point, for their truth is hypothetically
admitted by the motion. The issue rather is: admitting
them to be true, may the court render a valid
judgment in accordance with the prayer of the
complaint?" 42
The fact that there is no cause of action is evident
from the face of the Complaint for expropriation which

Second Issue:
Eminent Domain Not Barred by Res Judicata
As correctly found by the Court of Appeals 43 and the
trial court, 44 all the requisites for the application of
res judicata are present in this case. There is a
previous final judgment on the merits in a prior
expropriation case involving identical interests,
subject matter and cause of action, which has been
rendered by a court having jurisdiction over it.

While the principle of res judicata does not denigrate

the right of the State to exercise eminent domain, it
does apply to specific issues decided in a previous
case. For example, a final judgment dismissing an
expropriation suit on the ground that there was no
prior offer precludes another suit raising the same
issue; it cannot, however, bar the State or its agent
from thereafter complying with this requirement, as
prescribed by law, and subsequently exercising its
power of eminent domain over the same property. 48
By the same token, our ruling that petitioner cannot
exercise its delegated power of eminent domain

through a mere resolution will not bar it from

reinstituting similar proceedings, once the said legal
requirement and, for that matter, all others are
properly complied with. Parenthetically and by parity
of reasoning, the same is also true of the principle of
"law of the case." In Republic vs De Knecht, 49 the
Court ruled that the power of the State or its agent to
exercise eminent domain is not diminished by the
mere fact that a prior final judgment over the property
to be expropriated has become the law of the case as
to the parties. The State or its authorized agent may
still subsequently exercise its right to expropriate the
same property, once all legal requirements are
complied with. To rule otherwise will not only
improperly diminish the power of eminent domain, but
also clearly defeat social justice.
WHEREFORE, the petition is hereby DENIED without
prejudice to petitioner's proper exercise of its power of
eminent domain over subject property. Costs against
petitioner.
SO ORDERED. cdrep
Davide, Jr., Bellosillo, Vitug and Quisumbing, JJ .,
concur.
||| (Municipality of Paraaque v. V.M. Realty Corp.,
G.R. No. 127820, July 20, 1998)

asking for the property but their signatures were

forged or they were misled into signing the same. 6
On July 31, 1997, the trial court denied petitioners'
Motion to Dismiss and declared that the expropriation
in this case is for "public use" and the respondent has
the lawful right to take the property upon payment of
just compensation. 7 cHCIDE
FIRST DIVISION
[G.R. No. 153974. August 7, 2006.]
MIGUEL BELUSO, NATIVIDAD BELUSO, PEDRO
BELUSO, ANGELITA BELUSO, RAMON BELUSO,
and AMADA DANIEL, substituted by her heirs
represented by TERESITA ARROBANG, petitioner,
vs. THE MUNICIPALITY OF PANAY (CAPIZ),
represented by its Mayor, VICENTE B. BERMEJO,
respondent.
DECISION
AUSTRIA-MARTINEZ, J p:
Before this Court is a petition for review questioning
the Decision 1 of the Court of Appeals (CA) dated
March 20, 2002 in CA-G.R. SP No. 47052, as well the
Resolution 2 dated June 11, 2002 denying petitioners'
Motion for Reconsideration thereof.
The facts are as follows:
Petitioners are owners of parcels of land with a total
area of about 20,424 square meters, covered by Free
Patent Nos. 7265, 7266, 7267, 7268, 7269, and 7270.
3 On November 8, 1995, the Sangguniang Bayan of
the Municipality of Panay issued Resolution No. 95-29
authorizing the municipal government through the
mayor to initiate expropriation proceedings. 4 A
petition for expropriation was thereafter filed on April
14, 1997 by the Municipality of Panay (respondent)
before the Regional Trial Court (RTC), Branch 18 of
Roxas City, docketed as Civil Case No. V-6958. 5
Petitioners filed a Motion to Dismiss alleging that the
taking is not for public use but only for the benefit of
certain individuals; that it is politically motivated
because petitioners voted against the incumbent
mayor and vice-mayor; and that some of the
supposed beneficiaries of the land sought to be
expropriated have not actually signed a petition

Petitioners filed an Answer on August 12, 1997

reasserting the issues they raised in their Motion to
Dismiss. 8
On October 1, 1997, the trial court issued an Order
appointing three persons as Commissioners to
ascertain the amount of just compensation for the
property. 9 Petitioners filed a "Motion to Hold in
Abeyance the Hearing of the Court Appointed
Commissioners to Determine Just Compensation and
for Clarification of the Court's Order dated October 1,
1997" which was denied by the trial court on
November 3, 1997. 10 Petitioners' Motion for
Reconsideration was also denied on December 9,
1997. 11
Petitioners then filed on March 2, 1998 a Petition for
Certiorari before the CA claiming that they were
denied due process when the trial court declared that
the taking was for public purpose without receiving
evidence on petitioners' claim that the Mayor of Panay
was motivated by politics in expropriating their
property and in denying their Motion to Hold in
Abeyance the Hearing of the Court Appointed
Commissioners; and that the trial court also
committed grave abuse of discretion when it
disregarded the affidavits of persons denying that
they signed a petition addressed to the municipal
government of Panay. 12 On January 17, 2001,
petitioners filed a Motion to Admit Attached
Memorandum and the Memorandum itself where they
argued that based on the Petition for Expropriation
filed by respondent, such expropriation was based
only on a resolution and not on an ordinance contrary
to Sec. 19 of Republic Act (R.A.) No. 7160; there was
also no valid and definite offer to buy the property as
the price offered by respondent to the petitioners was
very low. 13
On March 20, 2002, the CA rendered its Decision
dismissing the Petition for Certiorari. It held that the
petitioners were not denied due process as they were
able to file an answer to the complaint and were able

to adduce their defenses therein; and that the

purpose of the taking in this case constitutes "public
use". 14 Petitioners filed a Motion for Reconsideration
which was denied on June 11, 2002. 15
Thus, the present petition claiming that:
A. RESPONDENT IS WITHOUT, LACKS AND DOES
NOT HAVE THE LAWFUL POWER TO ACQUIRE
ANY OR ALL OF THE SUBJECT PROPERTIES
THROUGH
EMINENT
DOMAIN,
IT
BEING
EXERCISED BY MEANS OF A MERE RESOLUTION,
AND NOT THROUGH AN ORDINANCE AS
REQUIRED
BY
LAW
AND
APPLICABLE
JURISPRUDENCE;
B. RESPONDENT IS LIKEWISE WITHOUT, LACKS
AND DOES NOT HAVE THE LAWFUL POWER TO
ACQUIRE ANY OR ALL OF THE SUBJECT
PROPERTIES THROUGH EMINENT DOMAIN, ITS
PREVIOUS OFFER TO BUY THEM BEING NOT
VALID; and aSACED
C. IT WAS A SERIOUS ERROR ON THE PART OF
THE HONORABLE COURT OF APPEALS NOT TO
DISCUSS, MUCH LESS RULE ON, BOTH IN ITS
QUESTIONED DECISION AND ITS RESOLUTION
PROMULGATED ON 11 JUNE 2002 PETITIONERS'
ARGUMENTS THAT RESPONDENT IS WITHOUT,
LACKS AND DOES NOT HAVE THE LAWFUL
POWER TO ACQUIRE ANY OR ALL OF THE
SUBJECT PROPERTIES THROUGH EMINENT
DOMAIN, IT BEING EXERCISED BY MEANS OF A
MERE RESOLUTION, AND NOT THROUGH AN
ORDINANCE AS REQUIRED BY LAW AND
APPLICABLE
JURISPRUDENCE,
AND
ITS
PREVIOUS OFFER TO BUY THEM BEING NOT
VALID, DESPITE THE FACT THAT THESE
OBJECTIONS WERE PROPERLY PLEADED IN
PETITIONERS' MEMORANDUM WHICH WAS DULY
ADMITTED IN ITS RESOLUTION PROMULGATED
ON 29 JANUARY 2001; and
D. PETITIONERS WERE UTTERLY DENIED
PROCEDURAL DUE PROCESS OF LAW BY THE
COURT A QUO, WHEN IT SIMPLY DECLARED IN
ITS ORDER DATED 31 JULY 1997 THAT THE
TAKING BY RESPONDENT OF PETITIONERS'
PROPERTIES IS PURPORTEDLY FOR PUBLIC
PURPOSE WITHOUT RECEIVING EVIDENCE ON
THEIR ASSERTED CLAIM THAT RESPONDENT'S
MUNICIPAL
MAYOR
WAS
POLITICALLY

MOTIVATED IN SEEKING THE EXPROPRIATION

OF THEIR PROPERTIES AND NOT FOR PUBLIC
PURPOSE. 16

have been passed upon by both the trial court and the
CA and were all denied for lack of substantial merit.
18

Petitioners argue that: contrary to Sec. 19 of R.A. No.

7160 of the Local Government Code, which provides
that a local government may exercise the power of
eminent domain only by "ordinance," respondent's
expropriation in this case is based merely on a
"resolution"; while objection on this ground was
neither raised by petitioners in their Motion to Dismiss
nor in their Answer, such objection may still be
considered by this Court since the fact upon which it
is based is apparent from the petition for expropriation
itself; a defense may be favorably considered even if
not raised in an appropriate pleading so long as the
facts upon which it is based are undisputed; courts
have also adopted a more censorious attitude in
resolving questions involving the proper exercise of
local bodies of the delegated power of expropriation,
as compared to instances when it is directly exercised
by the national legislature; respondent failed to give,
prior to the petition for expropriation, a previous valid
and definite offer to petitioners as the amount offered
in this case was only P10.00 per square meter, when
the properties are residential in nature and command
a much higher price; the CA failed to discuss and rule
upon the arguments raised by petitioners in their
Memorandum; attached to the Motion to Dismiss were
affidavits and death certificates showing that there
were people whose names were in the supposed
petition asking respondent for land, but who did not
actually sign the same, thus showing that the present
expropriation was not for a public purpose but was
merely politically motivated; considering the
conflicting claims regarding the purpose for which the
properties are being expropriated and inasmuch as
said issue may not be rightfully ruled upon merely on
the basis of petitioners' Motion to Dismiss and Answer
as well as respondent's Petition for Expropriation,
what should have been done was for the RTC to
conduct hearing where each party is given ample
opportunity to prove its claim. 17

Respondent filed a Memorandum quoting at length

the decision of the CA to support its position. 19
Petitioners meanwhile opted to have the case
resolved based on the pleadings already filed. 20

Respondent for its part contends that its power to

acquire private property for public use upon payment
of just compensation was correctly upheld by the trial
court; that the CA was correct in finding that the
petitioners were not denied due process, even though
no hearing was conducted in the trial court, as
petitioners were still able to adduce their objections
and defenses therein; and that petitioners' arguments

We find the petition to be impressed with merit.

CTaIHE
Eminent domain, which is the power of a sovereign
state to appropriate private property to particular uses
to promote public welfare, is essentially lodged in the
legislature. 21 While such power may be validly
delegated to local government units (LGUs), other
public entities and public utilities the exercise of such
power by the delegated entities is not absolute. 22 In
fact, the scope of delegated legislative power is
narrower than that of the delegating authority and
such entities may exercise the power to expropriate
private property only when authorized by Congress
and subject to its control and restraints imposed
through the law conferring the power or in other
legislations. 23 Indeed, LGUs by themselves have no
inherent power of eminent domain. 24 Thus, strictly
speaking, the power of eminent domain delegated to
an LGU is in reality not eminent but "inferior" since it
must conform to the limits imposed by the delegation
and thus partakes only of a share in eminent domain.
25 The national legislature is still the principal of the
LGUs and the latter cannot go against the principal's
will or modify the same. 26
The exercise of the power of eminent domain
necessarily involves a derogation of a fundamental
right. 27 It greatly affects a landowner's right to private
property which is a constitutionally protected right
necessary for the preservation and enhancement of
personal dignity and is intimately connected with the
rights to life and liberty. 28 Thus, whether such power
is exercised directly by the State or by its authorized
agents, the exercise of such power must undergo
painstaking scrutiny. 29

Indeed, despite the existence of legislative grant in

favor of local governments, it is still the duty of the
courts to determine whether the power of eminent

domain is being exercised in accordance with the

delegating law.
Sec. 19 of R.A. No. 7160, which delegates to LGUs
the power of eminent domain expressly provides:
SEC. 19. Eminent Domain. A local government unit
may, through its chief executive and acting pursuant
to an ordinance, exercise the power of eminent
domain for public use, or purpose, or welfare for the
benefit of the poor and the landless, upon payment of
just compensation, pursuant to the provisions of the
Constitution and pertinent laws: Provided, however,
That the power of eminent domain may not be
exercised unless a valid and definite offer has been
previously made to the owner, and such offer was not
accepted: Provided, further, That the local
government unit may immediately take possession of
the property upon the filing of the expropriation
proceedings and upon making a deposit with the
proper court of at least fifteen percent (15%) of the
fair market value of the property based on the current
tax declaration of the property to be expropriated:
Provided, finally, That, the amount to be paid for the
expropriated property shall be determined by the
proper court, based on the fair market value at the
time of the taking of the property. ATSIED
It is clear therefore that several requisites must
concur before an LGU can exercise the power of
eminent domain, to wit:
1. An ordinance is enacted by the local legislative
council authorizing the local chief executive, in behalf
of the local government unit, to exercise the power of
eminent domain or pursue expropriation proceedings
over a particular private property.
2. The power of eminent domain is exercised for
public use, purpose or welfare, or for the benefit of the
poor and the landless.
3. There is payment of just compensation, as required
under Section 9, Article III of the Constitution, and
other pertinent laws.
4. A valid and definite offer has been previously made
to the owner of the property sought to be
expropriated, but said offer was not accepted. 30
The Court in no uncertain terms have pronounced
that a local government unit cannot authorize an

expropriation of private property through a mere

resolution of its lawmaking body. 31 R.A. No. 7160
otherwise known as the Local Government Code
expressly requires an ordinance for the purpose and a
resolution that merely expresses the sentiment of the
municipal council will not suffice. 32
A resolution will not suffice for an LGU to be able to
expropriate private property; and the reason for this is
settled:
. . . A municipal ordinance is different from a
resolution. An ordinance is a law, but a resolution is
merely a declaration of the sentiment or opinion of a
lawmaking body on a specific matter. An ordinance
possesses a general and permanent character, but a
resolution is temporary in nature. Additionally, the two
are enacted differently a third reading is necessary
for an ordinance, but not for a resolution, unless
decided otherwise by a majority of all the Sanggunian
members.
If Congress intended to allow LGUs to exercise
eminent domain through a mere resolution, it would
have simply adopted the language of the previous
Local Government Code. But Congress did not. In a
clear divergence from the previous Local Government
Code, Sec. 19 of R.A. [No.] 7160 categorically
requires that the local chief executive act pursuant to
an ordinance. . . . 33
As respondent's expropriation in this case was based
merely on a resolution, such expropriation is clearly
defective. While the Court is aware of the
constitutional policy promoting local autonomy, the
court cannot grant judicial sanction to an LGU's
exercise of its delegated power of eminent domain in
contravention of the very law giving it such power. 34
The Court notes that petitioners failed to raise this
point at the earliest opportunity. Still, we are not
precluded from considering the same. This Court will
not hesitate to consider matters even those raised for
the first time on appeal in clearly meritorious
situations, 35 such as in this case. aESIDH
Thus, the Court finds it unnecessary to resolve the
other issues raised by petitioners.
It is well to mention however that despite our ruling in
this case respondent is not barred from instituting

similar proceedings in the future, provided that it

complies with all legal requirements. 36
WHEREFORE, the petition is GRANTED. The
decision of the Court of Appeals in CA-G.R. SP No.
47052 is REVERSED and SET ASIDE. The Complaint
in Civil Action No. V-6958 is DISMISSED without
prejudice.
No costs.
SO ORDERED.
Panganiban, C.J., Ynares-Santiago, Callejo, Sr. and
Chico-Nazario, JJ., concur.
||| (Beluso v. Municipality of Panay (Capiz), G.R. No.
153974, August 07, 2006)

EN BANC
[G.R. No. L-20620. August 15, 1974.]
REPUBLIC OF THE PHILIPPINES, plaintiffappellant, vs. CARMEN M. VDA. DE CASTELLVI,
ET AL., defendants-appellees.
Office of the Solicitor General for plaintiff-appellant.
C .A. Mendoza & A.V . Raquiza and Alberto Cacnio &
Associates for defendant-appellees.
DECISION
ZALDIVAR, J p:
Appeal from the decision of the Court of First Instance
of Pampanga in its Civil Case No. 1623, an
expropriation proceeding.
Plaintiff-appellant, the Republic of the Philippines,
(hereinafter referred to as the Republic) filed, on June
26, 1959, a complaint for eminent domain against
defendant-appellee, Carmen M. vda. de Castellvi,
judicial administratrix of the estate of the late Alfonso
de Castellvi hereinafter referred to as Castellvi), over
a parcel of land situated in the barrio of San Jose,
Floridablanca, Pampanga, described as follows:
"A parcel of land, Lot No. 199-B Bureau of Lands Plan
Swo-23666. Bounded on the NE by Maria Nieves
Toledo-Gozun; on the SE by national road; on the SW
by AFP reservation, and on the NW by AFP
reservation. Containing an area of 759,299 square
meters, more or less, and registered in the name of
Alfonso Castellvi under TCT No. 13631 of the
Register of Deeds of Pampanga . . .";

and against defendant-appellee Maria Nieves Toledo

Gozun (hereinafter referred to as Toledo-Gozun), over
two parcels of land described as follows:
"A parcel of land (Portion of Lot 1-B, Blk-1, Bureau of
Lands Plan Psd, 26254. Bounded on the NE by Lot 3,
on the SE by Lot 3; on the SW by Lot 1-B, Blk. 2
(equivalent to Lot 199-B Swo 23666; on the NW by
AFP military reservation. Containing an area of
450,273 square meters, more or less, and registered
in the name of Maria Nieves Toledo-Gozun under TCT
No. 8708 of the Register of Deeds of Pampanga. . . .",
and
"A parcel of land (Portion of Lot 3, Blk-1, Bureau of
Lands Plan Psd 26254. Bounded on the NE by Lot
No. 3, on the SE by school lot and national road, on
the SW by Lot 1-B Blk 2 (equivalent to Lot 199-B Swo
23666), on the NW by Lot 1-B, Blk-1. Containing an
area of 88,772 square meters, more or less, and
registered in the name of Maria Nieves Toledo Gozun
under TCT No. 8708 of the Register of Deeds of
Pampanga, . . ."
In its complaint, the Republic alleged, among other
things, that the fair market value of the abovementioned lands, according to the Committee on
Appraisal for the Province of Pampanga, was not
more than P2,000 per hectare, or a total market value
of P259,669.10; and prayed, that the provisional value
of the lands be fixed at P259,669.10, that the court
authorizes plaintiff to take immediate possession of
the lands upon deposit of that amount with the
Provincial Treasurer of Pampanga; that the court
appoints three commissioners to ascertain and report
to the court the just compensation for the property
sought to be expropriated, and that the court issues
thereafter a final order of condemnation.
On June 29, 1959 the trial court issued an order fixing
the provisional value of the lands at P259,669.10.
In her "motion to dismiss" filed on July 14, 1959,
Castellvi alleged, among other things, that the land
under her administration, being a residential land, had
a fair market value of P15.00 per square meter, so it
had a total market value of P11,389,485.00; that the
Republic, through the Armed Forces of the
Philippines, particularly the Philippine Air Force, had
been, despite repeated demands, illegally occupying
her property since July 1, 1956, thereby preventing
her from using and disposing of it, thus causing her
damages by way of unrealized profits. This defendant

prayed that the complaint be dismissed, or that the

Republic be ordered to pay her P15.00 per square
meter, or a total of P11,389,485.00, plus interest
thereon at 6% per annum from July 1, 1956; that the
Republic be ordered to pay her P5,000,000.00 as
unrealized profits, and the costs of the suit.
By order of the trial court, dated August, 1959,
Amparo C. Diaz, Dolores G. viuda de Gil, Paloma
Castellvi, Carmen Castellvi, Rafael Castellvi, Luis
Castellvi, Natividad Castellvi de Raquiza, Jose
Castellvi and Consuelo Castellvi were allowed to
intervene as parties defendants. Subsequently,
Joaquin V. Gozun, Jr., husband of defendant Nieves
Toledo Gozun, was also allowed by the court to
intervene as a party defendant.
After the Republic had deposited with the Provincial
Treasurer of Pampanga the amount of P259,669.10,
the trial court ordered that the Republic be placed in
possession of the lands. The Republic was actually
placed in possession of the lands on August 10, 1959.
1
In her "motion to dismiss", dated October 22, 1959,
Toledo-Gozun alleged, among other things, that her
two parcels of land were residential lands, in fact a
portion with an area of 343,303 square meters had
already been subdivided into different lots for sale to
the general public, and the remaining portion had
already been set aside for expansion sites of the
already completed subdivisions; that the fair market
value of said lands was P15.00 per square meter, so
they had a total market value of P8,085,675.00; and
she prayed that the complaint be dismissed, or that
she be paid the amount of P8,085,675.00, plus
interest thereon at the rate of 6% per annum from
October 13, 1959, and attorney's fees in the amount
of P50,000.00.
Intervenors Jose Castellvi and Consuelo Castellvi in
their answer, filed on February 11, 1960, and also
intervenor Joaquin Gozun, Jr., husband of defendant
Maria Nieves Toledo-Gozun, in his motion to dismiss,
dated May 27, 1960, all alleged that the value of the
lands sought to be expropriated was at the rate of
P15.00 per square meter.
On November 4, 1959, the trial court authorized the
Provincial Treasurer of Pampanga to pay defendant
Toledo-Gozun the sum of P107,609.00 as provisional
value of her lands. 2 On May 16, 1960 the trial Court

authorized the Provincial Treasurer of Pampanga to

pay defendant Castellvi the amount of P151,859.80
as provisional value of the land under her
administration, and ordered said defendant to deposit
the amount with the Philippine National Bank under
the supervision of the Deputy Clerk of Court. In
another order of May 16, 1960 the trial Court entered
an order of condemnation. 3
The trial Court appointed three commissioners: Atty.
Amadeo Yuzon, Clerk of Court, as commissioner for
the court; Atty. Felicisimo G. Pamandanan, counsel of
the Philippine National Bank Branch at Floridablanca,
for the plaintiff; and Atty. Leonardo F. Lansangan,
Filipino legal counsel at Clark Air Base, for the
defendants. The Commissioners, after having
qualified themselves, proceeded to the performance
of their duties.
On March 15, 1961 the Commissioners submitted
their report and recommendation, wherein, after
having determined that the lands sought to be
expropriated
were
residential
lands,
they
recommended unanimously that the lowest price that
should be paid was P10.00 per square meter, for both
the lands of Castellvi and Toledo-Gozun; that an
additional P5,000.00 be paid to Toledo-Gozun for
improvements found on her land; that legal interest on
the compensation, computed from August 10, 1959,
be paid after deducting the amounts already paid to
the owners, and that no consequential damages be
awarded. 4 The Commissioners' report was objected
to by all the parties in the case by defendants
Castellvi and Toledo-Gozun, who insisted that the fair
market value of their lands should be fixed at P15.00
per square meter; and by the Republic, which insisted
that the price to be paid for the lands should be fixed
at P0.20 per square meter. 5
After the parties-defendants and intervenors had filed
their respective memoranda, and the Republic, after
several extensions of time, had adopted as its
memorandum its objections to the report of the
Commissioners, the trial court, on May 26, 1961,
rendered its decision 6 the dispositive portion of which
reads as follows:
"WHEREFORE, taking into account all the foregoing
circumstances, and that the lands are titled, . . . the
rising trend of land values,. . . and the lowered
purchasing power of the Philippine peso, the court
finds that the unanimous recommendation of the

commissioners of ten (P10.00) pesos per square

meter for the three lots of the defendants subject of
this action is fair and just."
xxx xxx xxx
"The plaintiff will pay 6% interest per annum on the
total value of the lands of defendant Toledo-Gozun
since (sic) the amount deposited as provisional value
from August 10, 1959 until full payment is made to
said defendant or deposit therefor is made in court.
"In respect to the defendant Castellvi, interest at 6%
per annum will also be paid by the plaintiff to
defendant Castellvi from July 1, 1956 when plaintiff
commenced its illegal possession of the Castellvi land
when the instant action had not yet been commenced
to July 10, 1959 when the provisional value thereof
was actually deposited in court, on the total value of
the said (Castellvi) land as herein adjudged. The
same rate of interest shall be paid from July 11, 1959
on the total value of the land herein adjudged minus
the amount deposited as provisional value, or
P151,859.80, such interest to run until full payment is
made to said defendant or deposit therefor is made in
court. All the Intervenors having failed to produce
evidence in support of their respective interventions,
said interventions are ordered dismissed.
"The costs shall be charged to the plaintiff."
On June 21, 1961 the Republic filed a motion for a
new trial and/or reconsideration, upon the grounds of
newly-discovered evidence, that the decision was not
supported by the evidence, and that the decision was
against the law, against which motion defendants
Castellvi and Toledo-Gozun filed their respective
oppositions. On July 8, 1961 when the motion of the
Republic for new trial and/or reconsideration was
called for hearing, the Republic filed a supplemental
motion for new trial upon the ground of additional
newly-discovered evidence. This motion for new trial
and/or reconsideration was denied by the court on
July 12, 1961.

On July 17, 1961 the Republic gave notice of its

intention to appeal from the decision of May 26, 1961
and the order of July 12, 1961. Defendant Castellvi

also filed, on July 17, 1961, her notice of appeal from

the decision of the trial court.
The Republic filed various ex-parte motions for
extension of time within which to file its record on
appeal. The Republic's record on appeal was finally
submitted on December 6, 1961.
Defendants Castellvi and Toledo-Gozun filed not only
a joint opposition to the approval of the Republic's
record on appeal, but also a joint memorandum in
support of their opposition. The Republic also filed a
memorandum in support of its prayer for the approval
of its record on appeal. On December 27, 1961 the
trial court issued an order declaring both the record
on appeal filed by the Republic, and the record on
appeal filed by defendant Castellvi as having been
filed out of time, thereby dismissing both appeals.
On January 11, 1962 the Republic filed a "motion to
strike out the order of December 27, 1961 and for
reconsideration", and subsequently an amended
record oil appeal, against which motion the
defendants Castellvi and Toledo-Gozun filed their
opposition. On July 26, 1962 the trial court issued an
order, stating that "in the interest of expediency, the
questions raised may be properly and finally
determined by the Supreme Court," and at the same
time it ordered the Solicitor General to submit a
record on appeal containing copies of orders and
pleadings specified therein. In an order dated
November 19, 1962, the trial court approved the
Republic's record on appeal as amended.
Defendant Castellvi did not insist on her appeal.
Defendant Toledo-Gozun did not appeal.
The motion to dismiss the Republic's appeal was
reiterated by appellees Castellvi and Toledo-Gozun
before this Court, but this Court denied the motion.
In her motion of August 11, 1964, appellee Castellvi
sought to increase the provisional value of her land.
The Republic, in its comment on Castellvi's motion,
opposed the same. This Court denied Castellvi's
motion in a resolution dated October 2, 1964.
The motion of appellees, Castellvi and Toledo-Gozun,
dated October 6, 1969, praying that they be
authorized to mortgage the lands subject of
expropriation, was denied by this Court or October 14,
1969.

On February 14, 1972, Attys. Alberto Cacnio, and

Associates, counsel for the estate of the late Don
Alfonso de Castellvi in the expropriation proceedings,
filed a notice of attorney's lien, stating that as per
agreement with the administrator of the estate of Don
Alfonso de Castellvi they shall receive by way of
attorney's fees, "the sum equivalent to ten per centum
of whatever the court may finally decide as the
expropriated price of the property subject matter of
the case."
Before this Court, the Republic contends that the
lower court erred:
1. In finding the price of P10 per square meter of the
lands subject of the instant proceedings as just
compensation;
2. In holding that the "taking" of the properties under
expropriation commenced with the filing of this action;
3. In ordering plaintiff-appellant to pay 6% interest on
the adjudged value of the Castellvi property to start
from July of 1956;
4. In denying plaintiff-appellant's motion for new trial
based on newly discovered evidence.
In its brief, the Republic discusses the second error
assigned as the first issue to be considered. We shall
follow the sequence of the Republic's discussion.
1. In support of the assigned error that the lower court
erred in holding that the "taking" of the properties
under expropriation commenced with the filing of the
complaint in this case, the Republic argues that the
"taking" should be reckoned from the year 1947 when
by virtue of a special lease agreement between the
Republic and appellee Castellvi, the former was
granted the "right and privilege" to buy the property
should the lessor wish to terminate the lease, and that
in the event of such sale, it was stipulated that the fair
market value should be as of the time of occupancy;
and that the permanent improvements amounting to
more than half a million pesos constructed during a
period of twelve years on the land, subject of
expropriation, were indicative of an agreed pattern of
permanency and stability of occupancy by the
Philippine Air Force in the interest of national security.
7

Appellee Castellvi, on the other hand, maintains that

the "taking" of property under the power of eminent
domain requires two essential elements, to wit: (1)
entrance and occupation by condemnor upon the
private property for more than a momentary or limited
period, and (2) devoting it to a public use in such a
way as to oust the owner and deprive him of all
beneficial enjoyment of the property. This appellee
argues that in the instant case the first element is
wanting, for the contract of lease relied upon provides
for a lease from year to year; that the second element
is also wanting, because the Republic was paying the
lessor Castellvi a monthly rental of P445.58; and that
the contract of lease does not grant the Republic the
"right and privilege" to buy the premises "at the value
at the time of occupancy." 8
Appellee Toledo-Gozun did not comment on the
Republic's argument in support of the second error
assigned, because as far as she was concerned the
Republic had not taken possession of her lands prior
to August 10, 1959. 9
In order to better comprehend the issues raised in the
appeal, in so far as the Castellvi property is
concerned, it should be noted that the Castellvi
property had been occupied by the Philippine Air
Force since 1947 under a contract of lease, typified
by the contract marked Exh. 4-Castellvi, the pertinent
portions of which read:
"CONTRACT OF LEASE
"This AGREEMENT OF LEASE MADE AND
ENTERED into by and between INTESTATE ESTATE
OF ALFONSO DE CASTELLVI, represented by
CARMEN M. DE CASTELLVI Judicial Administratrix x
x x hereinafter called the LESSOR and THE
REPUBLIC OF THE PHILIPPINES represented by
MAJ. GEN. CALIXTO DUQUE, Chief of Staff of the
ARMED FORCES OF THE PHILIPPINES, hereinafter
called the LESSEE,
"WITNESSETH:
"1. For and in consideration of the rentals hereinafter
reserved and the mutual terms, covenants and
conditions of the parties, the LESSOR has, and by
these presents does, lease and let unto the LESSEE
the following described land together with the
improvements thereon and appurtenances thereof,
viz:

'Un Terreno, Lote No. 27 del Plano de subdivision Psu

34752, parte de la hacienda de Campauit, situado en
el Barrio de San Jose, Municipio de Floridablanca,
Pampanga . . . midiendo una extension superficial de
cuatro milliones once mil cuatro cientos trienta y cinco
(4,001,435) [sic] metros cuadrados, mas o menos.
'Out of the above described property, 75.93 hectares
thereof are actually occupied and covered by this
contract.
'Above lot is more particularly described in TCT No.
1016, province of Pampanga . . .
of which premises, the LESSOR warrants that
he/she/they/is/are the registered owner(s) and with
full authority to execute a contract of this nature.
"2. The term of this lease shall be for the period
beginning July 1, 1952 the date the premises were
occupied by the PHILIPPINE AIR FORCE, AFP until
June 30, 1953, subject to renewal for another year at
the option of the LESSEE or unless sooner
terminated by the LESSEE as hereinafter provided.
"3. The LESSOR hereby warrants that the LESSEE
shall have quiet, peaceful and undisturbed
possession of the demised premises throughout the
full term or period of this lease and the LESSOR
undertakes without cost to the LESSEE to eject all
trespassers, but should the LESSOR fail to do so, the
LESSEE at its option may proceed to do so at the
expense of the LESSOR. The LESSOR further agrees
that should he/she/they sell or encumber all or any
part of the herein described premises during the
period of this lease, any conveyance will be
conditioned on the right of the LESSEE hereunder.
"4. The LESSEE shall pay to the LESSOR as monthly
rentals under this lease the sum of FOUR HUNDRED
FIFTY-FIVE PESOS & 58/100(P455.58) . . .
"5. The LESSEE may, at anytime prior to the
termination of this lease, use the property for any
purpose or purposes and, at its own costs and
expense make alteration, install facilities and fixtures
and erect additions . . . which facilities or fixtures . . .
so placed in, upon or attached to the said premises
shall be and remain property of the LESSEE and may
be removed therefrom by the LESSEE prior to the
termination of this lease. The LESSEE shall surrender

possession of the premises upon the expiration or

termination of this lease and if so required by the
LESSOR, shall return the premises in substantially
the same condition as that existing at the time same
were first occupied by the AFP, reasonable and
ordinary wear and tear and damages by the elements
or by circumstances over which the LESSEE has no
control excepted: PROVIDED, that if the LESSOR so
requires the return of the premises in such condition,
the LESSOR shall give written notice thereof to the
LESSEE at least twenty (20) days before the
termination of the lease and provided, further, that
should the LESSOR give notice within the time
specified above, the LESSEE shall have the right and
privilege to compensate the LESSOR at the fair value
or the equivalent, in lieu of performance of its
obligation, if any, to restore the premises. Fair value is
to be determined as the value at the time of
occupancy less fair wear and tear and depreciation
during the period of this lease.
"6. The LESSEE may terminate this lease at any time
during the term hereof by giving written notice to the
LESSOR at least thirty (30) days in advance . . ."
"7. The LESSEE should not be responsible, except
under special legislation for any damages to the
premises by reason of combat operations, acts of
GOD, the elements or other acts and deeds not due
to the negligence on the part of the LESSEE.

"8. This LEASE AGREEMENT supersedes and voids

any and all agreements and undertakings, oral or
written, previously entered into between the parties
covering the property herein leased, the same having
been merged herein. This AGREEMENT may not be
modified or altered except by instrument in writing
only duly signed by the parties." 10
It was stipulated by the parties, that "the foregoing
contract of lease (Exh. 4, Castellvi) is 'similar in terms
and conditions, including the date', with the annual
contracts entered into from year to year between
defendant Castellvi and the Republic of the
Philippines (p. 17, t.s.n., Vol. III)". 11 It is undisputed,
therefore, that the Republic occupied Castellvi's land
from July 1, 1947, by virtue of the above-mentioned
contract, on a year to year basis (from July 1 of each

year to June 30 of the succeeding year) under the

terms and conditions therein stated.
Before the expiration of the contract of lease on June
30, 1956 the Republic sought to renew the same but
Castellvi refused. When the AFP refused to vacate
the leased premises after the termination of the
contract, on July 11, 1956, Castellvi wrote to the Chief
of Staff, AFP, informing the latter that the heirs of the
property had decided not to continue leasing the
property in question because they had decided to
subdivide the land for sale to the general public,
demanding that the property be vacated within 30
days from receipt of the letter, and that the premises
be returned in substantially the same condition as
before occupancy (Exh. 5 Castellvi). A follow-up
letter was sent on January 12, 1957, demanding the
delivery and return of the property within one month
from said date (Exh. 6 Castellvi). On January 30,
1957, Lieutenant General Alfonso Arellano, Chief of
Staff, answered the letter of Castellvi, saying that it
was difficult for the army to vacate the premises in
view of the permanent installations and other facilities
worth almost P500,000.00 that were erected and
already established on the property, and that, there
being no other recourse, the acquisition of the
property by means of expropriation proceedings
would be recommended to the President (Exhibit "7"
Castellvi).
Defendant Castellvi then brought suit in the Court of
First Instance of Pampanga, in Civil Case No. 1458,
to eject the Philippine Air Force from the land. While
this ejectment case was pending, the Republic
instituted these expropriation proceedings, and, as
stated earlier in this opinion, the Republic was placed
in possession of the lands on August 10, 1959. On
November 21, 1959, the Court of First Instance of
Pampanga, dismissed Civil Case No. 1458, upon
petition of the parties, in an order which, in part, reads
as follows:
"1. Plaintiff has agreed, as a matter of fact has
already signed an agreement with defendants,
whereby she has agreed to receive the rent of the
lands, subject matter of the instant case from June
30, 1966 up to 1959 when the Philippine Air Force
was placed in possession by virtue of an order of the
Court upon depositing the provisional amount as fixed
by the Provincial Appraisal Committee with the
Provincial Treasurer of Pampanga;

"2. That because of the above-cited agreement

wherein the administratrix decided to get the rent
corresponding to the rent from 1956 up to 1959 and
considering that this action is one of illegal detainer
and/or to recover the possession of said land by virtue
of nonpayment of rents, the instant case now has
become moot and academic and/or by virtue of the
agreement signed by plaintiff, she has waived her
cause of action in the above-entitled case." 12
The Republic urges that the "taking " of Castellvi's
property should be deemed as of the year 1947 by
virtue of afore-quoted lease agreement. In American
Jurisprudence, Vol. 26, 2nd edition, Section 157, on
the subject of "Eminent Domain, we read the
definition of "taking" (in eminent domain) as follows:
"'Taking' under the power of eminent domain may be
defined generally as entering upon private property
for more than a momentary period, and, under the
warrant or color of legal authority, devoting it to a
public use, or otherwise informally appropriating or
injuriously affecting it in such a way as substantially to
oust the owner and deprive him of all beneficial
enjoyment thereof." 13
Pursuant to the aforecited authority, a number of
circumstances must be present in the "taking" of
property for purposes of eminent domain.
First, the expropriator must enter a private property.
This circumstance is present in the instant case, when
by virtue of the lease agreement the Republic,
through the AFP, took possession of the property of
Castellvi.
Second, the entrance into private property must be for
more than a momentary period. "Momentary" means,
"lasting but a moment; of but a moment's duration"
(The Oxford English Dictionary, Volume VI, page 596);
"lasting a very short time; transitory; having a very
brief life; operative or recurring at every moment"
(Webster's Third International Dictionary, 1963
edition.) The word "momentary" when applied to
possession or occupancy of (real) property should be
construed to mean "a limited period" not indefinite
or permanent. The aforecited lease contract was for a
period of one year, renewable from year to year. The
entry on the property, under the lease, is temporary,
and considered transitory. The fact that the Republic,
through the AFP, constructed some installations of a
permanent nature does not alter the fact that the entry

into the land was transitory, or intended to last a year,

although renewable from year to year by consent of
the owner of the land. By express provision of the
lease agreement the Republic, as lessee, undertook
to return the premises in substantially the same
condition as at the time the property was first
occupied by the AFP. It is claimed that the intention of
the lessee was to occupy the land permanently, as
may be inferred from the construction of permanent
improvements. But this "intention" cannot prevail over
the clear and express terms of the lease contract.
Intent is to be deduced from the language employed
by the parties, and the terms of the contract, when
unambiguous, as in the instant case, are conclusive in
the absence of averment and proof of mistake or
fraud the question being not what the intention
was, but what is expressed in the language used.
(City of Manila v. Rizal Park Co., Inc., 53 Phil. 515,
525); Magdalena Estate, Inc. v. Myrick, 71 Phil. 344,
348). Moreover, in order to judge the intention of the
contracting parties, their contemporaneous and
subsequent acts shall be principally considered (Art.
1371, Civil Code). If the intention of the lessee
(Republic) in 1947 was really to occupy permanently
Castellvi's property, why was the contract of lease
entered into on year to year basis? Why was the
lease agreement renewed from year to year? Why did
not the Republic expropriate this land of Castellvi in
1949 when, according to the Republic itself, it
expropriated the other parcels of land that it occupied
at the same time as the Castellvi land, for the purpose
of converting them into a jet air base?" 14 It might
really have been the intention of the Republic to
expropriate the lands in question at some future time,
but certainly mere notice much less an implied
notice of such intention on the part of the Republic
to expropriate the lands in the future did not, and
could not, bind the landowner, nor bind the land itself.
The expropriation must be actually commenced in
court (Republic vs. Baylosis, et al., 96 Phil. 461, 484).
Third, the entry into the property should be under
warrant or color of legal authority. This circumstance
in the "taking" may be considered as present in the
instant case, because the Republic entered the
Castellvi property as lessee.
Fourth, the property must be devoted to a public use
or otherwise informally appropriated or injuriously
affected. It may be conceded that the circumstance of
the property being devoted to public use is present

because the property was used by the air force of the

AFP.
Fifth, the utilization of the property for public use must
be in such a way as to oust the owner and deprive
him of all beneficial enjoyment of the property. In the
instant case, the entry of the Republic into the
property and its utilization of the same for public use
did not oust Castellvi and deprive her of all beneficial
enjoyment of the property. Castellvi remained as
owner, and was continuously recognized as owner by
the Republic, as shown by the renewal of the lease
contract from year to year, and by the provision in the
lease contract whereby the Republic undertook to
return the property to Castellvi when the lease was
terminated. Neither was Castellvi deprived of all the
beneficial enjoyment of the property, because the
Republic was bound to pay, and had been paying,
Castellvi the agreed monthly rentals until the time
when it filed the complaint for eminent domain on
June 26, 1959.
It is clear, therefore, that the "taking" of Castellvi's
property for purposes of eminent domain cannot be
considered to have taken place in 1947 when the
Republic commenced to occupy the property as
lessee thereof. We find merit in the contention of
Castellvi that two essential elements in the "taking" of
property under the power of eminent domain, namely:
(1) that the entrance and occupation by the
condemnor must be for a permanent, or indefinite
period, and (2) that in devoting the property to public
use the owner was ousted from the property and
deprived of its beneficial use, were not present when
the Republic entered and occupied the Castellvi
property in 1947.
Untenable also is the Republic's contention that
although the contract between the parties was one of
lease on a year to year basis, it was "in reality a more
or less permanent right to occupy the premises under
the guise of lease with the 'right and privilege' to buy
the property should the lessor wish to terminate the
lease," and "the right to buy the property is merged as
an integral part of the lease relationship . . . so much
so that the fair market value has been agreed upon,
not as of the time of purchase, but as of the time of
occupancy". 15 We cannot accept the Republic's
contention that a lease on a year to year basis can
give rise to a permanent right to occupy, since by
express legal provision a lease made for a
determinate time, as was the lease of Castellvi's land

in the instant case, ceases upon the day fixed, without

need of a demand (Article 1669, Civil Code). Neither
can it be said that the right of eminent domain may be
exercised by simply leasing the premises to be
expropriated (Rule 67, Section 1, Rules of Court). Nor
can it be accepted that the Republic would enter into
a contract of lease where its real intention was to buy,
or why the Republic should enter into a simulated
contract of lease ("under the guise of lease", as
expressed by counsel for the Republic) when all the
time the Republic had the right of eminent domain,
and could expropriate Castellvi's land if it wanted to
without resorting to any guise whatsoever. Neither
can we see how a right to buy could be merged in a
contract of lease in the absence of any agreement
between the parties to that effect. To sustain the
contention of the Republic is to sanction a practice
whereby in order to secure a low price for a land
which the government intends to expropriate (or
would eventually expropriate) it would first negotiate
with the owner of the land to lease the land (for say
ten or twenty years) then expropriate the same when
the lease is about to terminate, then claim that the
"taking" of the property for the purposes of the
expropriation be reckoned as of the date when the
Government started to occupy the property under the
lease, and then assert that the value of the property
being expropriated be reckoned as of the start of the
lease, in spite of the fact that the value of the
property, for many good reasons, had in the
meantime increased during the period of the lease.
This would be sanctioning what obviously is a
deceptive scheme, which would have the effect of
depriving the owner of the property of its true and fair
market value at the time when the expropriation
proceedings were actually instituted in court. The
Republic's claim that it had the "right and privilege" to
buy the property at the value that it had at the time
when it first occupied the property as lessee nowhere
appears in the lease contract. What was agreed
expressly in paragraph No. 5 of the lease agreement
was that, should the lessor require the lessee to
return the premises in the same condition as at the
time the same was first occupied by the AFP, the
lessee would have the "right and privilege" (or option)
of paying the lessor what it would fairly cost to put the
premises in the same condition as it was at the
commencement of the lease, in lieu of the lessee's
performance of the undertaking to put the land in said
condition. The "fair value" at the time of occupancy,
mentioned in the lease agreement, does not refer to
the value of the property if bought by the lessee, but

refers to the cost of restoring the property in the same

condition as of the time when the lessee took
possession of the property. Such fair value cannot
refer to the purchase price, for purchase was never
intended by the parties to the lease contract. It is a
rule in the interpretation of contracts that "However
general the terms of a contract may be, they shall not
be understood to comprehend things that are distinct
and cases that are different from those upon which
the parties intended to agree" (Art. 1372, Civil Code)

We hold, therefore, that the "taking' of the Castellvi

property should not be reckoned as of the year 1947
when the Republic first occupied the same pursuant
to the contract of lease, and that the just
compensation to be paid for the Castellvi property
should not be determined on the basis of the value of
the property as of that year. The lower court did not
commit an error when it held that the "taking" of the
property under expropriation commenced with the
filing of the complaint in this case.
Under Section 4 of Rule 67 of the Rules of Court, 16
the "just compensation" is to be determined as of the
date of the filing of the complaint. This Court has ruled
that when the taking of the property sought to be
expropriated coincides with the commencement of the
expropriation proceedings, or takes place subsequent
to the filing of the complaint for eminent domain, the
just compensation should be determined as of the
date of the filing of the complaint. (Republic vs.
Philippine National Bank, L-14158, April 12, 1961, 1
SCRA 957, 961-962). In the instant case, it is
undisputed that the Republic was placed in
possession of the Castellvi property, by authority of
the court, on August 10, 1959. The "taking" of the
Castellvi property for the purposes of determining the
just compensation to be paid must, therefore, be
reckoned as of June 26, 1959 when the complaint for
eminent domain was filed.
Regarding the two parcels of land of Toledo-Gozun,
also sought to be expropriated, which had never been
under lease to the Republic, the Republic was placed
in possession of said lands, also by authority of the
court, on August 10, 1959. The taking of those lands,
therefore, must also be reckoned as of June 26, 1959,
the date of the filing of the complaint for eminent
domain.

2. Regarding the first assigned error discussed as

the second issue the Republic maintains that, even
assuming that the value of the expropriated lands is to
be determined as of June 26, 1959, the price of
P10.00 per square meter fixed by the lower court "is
not only exorbitant but also unconscionable, and
almost fantastic". On the other hand, both Castellvi
and Toledo-Gozun maintain that their lands are
residential lands with a fair market value of not less
than P15.00 per square meter.
The lower court found, and declared, that the lands of
Castellvi and Toledo-Gozun are residential lands. The
finding of the lower court is in consonance with the
unanimous opinion of the three commissioners who,
in their report to the court, declared that the lands are
residential lands.
The Republic assails the finding that the lands are
residential, contending that the plans of the appellees
to convert the lands into subdivision for residential
purposes were only on paper, there being no overt
acts on the part of the appellees which indicated that
the subdivision project had been commenced, so that
any compensation to be awarded on the basis of the
plans would be speculative. The Republic's contention
is not well taken. We find evidence showing that the
lands in question had ceased to be devoted to the
production of agricultural crops, that they had become
adaptable for residential purposes, and that the
appellees had actually taken steps to convert their
lands into residential subdivisions even before the
Republic filed the complaint for eminent domain.
In the case of City of Manila vs. Corrales (Phil. 82, 98)
this Court laid down basic guidelines in determining
the value of the property expropriated for public
purposes. This Court said:
"In determining the value of land appropriated for
public purposes, the same consideration are to be
regarded as in a sale of property between private
parties. The inquiry, in such cases, must be what is
the property worth in the market, viewed not merely
with reference to the uses to which it is at the time
applied, but with reference to the uses to which it is
plainly adapted, that is to say, What is it worth from its
availability for valuable uses?
"So many and varied are the circumstances to be
taken into account in determining the value of

property condemned for public purposes, that it is

practically impossible to formulate a rule to govern its
appraisement in all cases. Exceptional circumstances
will modify the most carefully guarded rule, but, as a
general thing, we should say that the compensation of
the owner is to be estimated by reference to the use
for which the property is suitable, having regard to the
existing business or wants of the community, or such
as may be reasonably expected in the immediate
future. (Miss. and Rum River Boom Co. vs. Patterson,
98 U.S., 403)."
In expropriation proceedings, therefore, the owner of
the land has the right to its value for the use for which
it would bring the most in the market. 17 The owner
may thus show every advantage that his property
possesses, present and prospective, in order that the
price it could be sold for in the market may be
satisfactorily determined. 18 The owner may also
show that the property is suitable for division into
village or town lots. 19
The trial court, therefore, correctly considered, among
other circumstances, the proposed subdivision plans
of the lands sought to be expropriated in finding that
those lands are residential lots. This finding of the
lower court is supported not only by the unanimous
opinion of the commissioners, as embodied in their
report, but also by the Provincial Appraisal Committee
of the province of Pampanga composed of the
Provincial Treasurer, the Provincial Auditor and the
District Engineer. In the minutes of the meeting of the
Provincial Appraisal Committee, held on May 14,
1959 (Exh. 13-Castellvi) We read in its Resolution No.
10 the following:
"3. Since 1957 the land has been classified as
residential in view of its proximity to the air base and
due to the fact that it was not being devoted to
agriculture. In fact, there is a plan to convert it into a
subdivision for residential purposes. The taxes due on
the property have been paid based on its
classification as residential land;"
The evidence shows that Castellvi broached the idea
of subdividing her land into residential lots as early as
July 11, 1956 in her letter to the Chief of Staff of the
Armed Forces of the Philippines. (Exh. 5-Castellvi) As
a matter of fact, the layout of the subdivision plan was
tentatively approved by the National Planning
Commission on September 7, 1956. (Exh. 8Castellvi). The land of Castellvi had not been devoted

to agriculture since 1947 when it was leased to the

Philippine Army. In 1957 said land was classified as
residential, and taxes based on its classification as
residential had been paid since then (Exh. 13Castellvi). The location of the Castellvi land justifies its
suitability for a residential subdivision. As found by the
trial court, "It is at the left side of the entrance of the
Basa Air Base and bounded on two sides by roads
(Exh. 13-Castellvi), paragraphs 1 and 2, Exh. 12Castellvi), the poblacion, (of Floridablanca) the
municipal building, and the Pampanga Sugar Mills are
closed by. The barrio schoolhouse and chapel are
also near (T.S.N. November 23, 1960, p. 68)". 20
The lands of Toledo-Gozun (Lot 1-B and Lot 3) are
practically of the same condition as the land of
Castellvi. The lands of Toledo-Gozun adjoin the land
of Castellvi. They are also contiguous to the Basa Air
Base, and are along the road. These lands are near
the barrio schoolhouse, the barrio chapel, the
Pampanga Sugar Mills, and the poblacion of
Floridablanca (Exhs. 1, 3 and 4-Toledo-Gozun). As a
matter of fact, regarding lot 1-B it had already been
surveyed and subdivided, and its conversion into a
residential subdivision was tentatively approved by
the National Planning Commission on July 8, 1959
(Exhs. 5 and 6 Toledo-Gozun). As early as June,
1958, no less than 32 man connected with the
Philippine Air Force among them commissioned
officers, non-commission officers, and enlisted men
had requested Mr. and Mrs. Joaquin D. Gozun to
open a subdivision on their lands in question (Exhs. 8,
8-A to 8-ZZ-Toledo-Gozun). 21
We agree with the findings, and the conclusions, of
the lower court that the lands that are the subject of
expropriation in the present case, as of August 10,
1959 when the same were taken possession of by the
Republic, were residential lands and were adaptable
for use as residential subdivisions. Indeed, the
owners of these lands have the right to their value for
the use for which they would bring the most in the
market at the time the same were taken from them.
The most important issue to be resolved in the
present case relates to the question of what is the just
compensation that should be paid to the appellees.
The Republic asserts that the fair market value of the
lands of the appellees is P.20 per square meter. The
Republic cites the case of Republic vs. Narciso, et al.,
L-6594, which this Court decided on May 18, 1956.
The Narciso case involved lands that belonged to

Castellvi and Toledo-Gozun, and to one Donata

Montemayor, which were expropriated by the
Republic in 1949 and which are now the site of the
Basa Air Base. In the Narciso case this Court fixed
the fair market value at P.20 per square meter. The
lands that are sought to be expropriated in the
present case being contiguous to the lands involved
in the Narciso case, it is the stand of the Republic that
the price that should be fixed for the lands now in
question should also be at P.20 per square meter.
We can not sustain the stand of the Republic. We find
that the price of P.20 per square meter, as fixed by
this Court in the Narciso case, was based on the
allegation of the defendants (owners) in their answer
to the complaint for eminent domain in that case that
the price of their lands was P2,000.00 per hectare
and that was the price that they asked the court to
pay them. This Court said, then, that the owners of
the land could not be given more than what they had
asked, notwithstanding the recommendation of the
majority of the Commission on Appraisal which
was adopted by the trial court that the fair market
value of the lands was P3,000.00 per hectare. We
also find that the price of P.20 per square meter in the
Narciso case was considered the fair market value of
the lands as of the year 1949 when the expropriation
proceedings were instituted, and at that time the lands
were classified as sugar lands, and assessed for
taxation purposes at around P400.00 per hectare, or
P.04 per square meter. 22 While the lands involved in
the present case, like the lands involved in the
Narciso case, might have a fair market value of P.20
per square meter in 1949, it can not be denied that
ten years later, in 1959, when the present
proceedings were instituted, the value of those lands
had increased considerably. The evidence shows that
since 1949 those lands were no longer cultivated as
sugar lands, and in 1959 those lands were already
classified, and assessed for taxation purposes, as
residential lands. In 1959 the land of Castellvi was
assessed at P1.00 per square meter. 23

The Republic also points out that the Provincial

Appraisal Committee of Pampanga, in its resolution
No. 5 of February 15, 1957 (Exhibit D), recommended
the sum of P.20 per square meter as the fair valuation
of the Castellvi property. We find that this resolution
was made by the Republic the basis in asking the

court to fix the provisional value of the lands sought to

be expropriated at P259,669.10, which was approved
by the court. 24 It must be considered, however, that
the amount fixed as the provisional value of the lands
that are being expropriated does not necessarily
represent the true and correct value of the land. The
value is only "provisional" or "tentative", to serve as
the basis for the immediate occupancy of the property
being expropriated by the condemnor. The records
show that this resolution No. 5 was repealed by the
same Provincial Committee on Appraisal in its
resolution No. 10 of May 14, 1959 (Exhibit 13Castellvi). In that resolution No. 10, the appraisal
committee stated that "The Committee has observed
that the value of the land in this locality has increased
since 1957 . . .", and recommended the price of P1.50
per square meter. It follows, therefore, that, contrary
to the stand of the Republic, that resolution No. 5 of
the Provincial Appraisal Committee can not be made
the basis for fixing the fair market value of the lands of
Castellvi and Toledo-Gozun.
The Republic further relied on the certification of the
Acting Assistant Provincial Assessor of Pampanga,
dated February 8, 1961 (Exhibit K), to the effect that
in 1950 the lands of Toledo-Gozun were classified
partly as sugar land and partly as urban land, and that
the sugar land was assessed at P.40 per square
meter, while part of the urban land was assessed at
P.40 per square meter and part at P.20 per square
meter; and that in 1956 the Castellvi land was
classified as sugar land and was assessed at
P450.00 per hectare, or P.045 per square meter. We
can not also consider this certification of the Acting
Assistant Provincial Assessor as a basis for fixing the
fair market value of the lands of Castellvi and ToledoGozun because, as the evidence shows, the lands in
question, in 1957, were already classified and
assessed for taxation purposes as residential lands.
The certification of the assessor refers to the year
1950 as far as the lands of Toledo-Gozun are
concerned, and to the year 1956 as far as the land of
Castellvi is concerned. Moreover, this Court has held
that the valuation fixed for the purposes of the
assessment of the land for taxation purposes can not
bind the landowner where the latter did not intervene
in fixing it. 25
On the other hand, the Commissioners, appointed by
the court to appraise the lands that were being
expropriated, recommended to the court that the price
of P10.00 per square meter would be the fair market

value of the lands. The commissioners made their

recommendation on the basis of their observation
after several ocular inspections of the lands, of their
own personal knowledge of land values in the
province of Pampanga, of the testimonies of the
owners of the land, and other witnesses, and of
documentary evidence presented by the appellees.
Both Castellvi and Toledo-Gozun testified that the fair
market value of their respective land was at P15.00
per square meter. The documentary evidence
considered by the commissioners consisted of deeds
of sale of residential lands in the town of San
Fernando and in Angeles City, in the province of
Pampanga, which were sold at prices ranging from
P8.00 to P20.00 per square meter (Exhibits 15, 16,
17, 18, 19, 20, 21, 22, 23-Castellvi). The
commissioners also considered the decision in Civil
Case No. 1531 of the Court of First Instance of
Pampanga, entitled Republic vs. Sabina Tablante,
which was an expropriation case filed on January 13,
1959, involving a parcel of land adjacent to the Clark
Air Base in Angeles City, where the court fixed the
price at P18.00 per square meter (Exhibit 14Castellvi). In their report, the commissioners, among
other things, said:
". . . This expropriation case is specially pointed out,
because the circumstances and factors involved
therein are similar in many respects to the defendants'
lands in this case. The land in Civil Case No. 1531 of
this Court and the lands in the present case (Civil
Case No. 1623) are both near the air bases, the Clark
Air Base and the Basa Air Base respectively. There is
a national road fronting them and are situated in a
first-class municipality. As added advantage it may be
said that the Basa Air Base land is very near the
sugar mill at Del Carmen, Floridablanca, Pampanga,
owned by the Pampanga Sugar Mills. Also just stone's
throw away from the same lands is a beautiful
vacation spot at Palacol, a sitio of the town of
Floridablanca, which counts with a natural swimming
pool for vacationists on weekends. These advantages
are not found in the case of the Clark Air Base. The
defendants' lands are nearer to the poblacion of
Floridablanca then Clark Air Base is nearer (sic) to the
poblacion of Angeles, Pampanga.
"The deeds of absolute sale, according to the
undersigned commissioners, as well as the land in
Civil Case No. 1531 are competent evidence,
because they were executed during the year 1959
and before August 10 of the same year. More

specifically so the land at Clark Air Base which

coincidentally is the subject matter in the complaint in
said Civil Case No. 1531, it having been filed on
January 13, 1959 and the taking of the land involved
therein was ordered by the Court of First Instance of
Pampanga on January 15, 1959, several months
before the lands in this case were taken by the
plaintiffs. . .
"From the above and considering further that the
lowest as well as the highest price per square meter
obtainable in the market of Pampanga relative to
subdivision lots within its jurisdiction in the year 1959
is very well known by the Commissioners, the
Commission finds that the lowest price that can be
awarded to the lands in question is P10.00 per square
meter." 26
The lower court did not altogether accept the findings
of the Commissioners based on the documentary
evidence, but it considered the documentary evidence
as basis for comparison in determining land values.
The lower court arrived at the conclusion that "the
unanimous recommendation of the commissioners of
ten (P10.00) pesos per square meter for the three lots
of the defendants subject of this action is fair and
just". 27 In arriving at its conclusion, the lower court
took into consideration, among other circumstances,
that the lands are titled, that there is a rising trend of
land values, and the lowered purchasing power of the
Philippine peso.
In the case of Manila Railroad Co. vs. Caligsihan, 40
Phil. 326, 328, this Court said:
"A court of first instance or, on appeal, the Supreme
Court, may change or modify the report of the
commissioners by increasing or reducing the amount
of the award if the facts of the case so justify. While
great weight is attached to the report of the
commissioners, yet a court may substitute therefor its
estimate of the value of the property as gathered from
the record in certain cases, as, where the
commissioners have applied illegal principles to the
evidence submitted to them, or where they have
disregarded a clear preponderance of evidence, or
where the amount allowed is either palpably
inadequate or excessive." 28
The report of the commissioners of appraisal in
condemnation proceedings are not binding, but
merely advisory in character, as far as the court is

concerned. 29 In our analysis of the report of the

commissioners, We find points that merit serious
consideration in the determination of the just
compensation that should be paid to Castellvi and
Toledo-Gozun for their lands. It should be noted that
the commissioners had made ocular inspections of
the lands and had considered the nature and
similarities of said lands in relation to the lands in
other places in the province of Pampanga, like San
Fernando and Angeles City. We cannot disregard the
observations of the commissioners regarding the
circumstances that make the lands in question suited
for residential purposes their location near the
Basa Air Base, just like the lands in Angeles City that
are near the Clark Air Base, and the facilities that
obtain because of their nearness to the big sugar
central of the Pampanga Sugar mills, and to the
flourishing first class town of Floridablanca. It is true
that the lands in question are not in the territory of
San Fernando and Angeles City, but, considering the
facilities of modern communications, the town of
Floridablanca may be considered practically adjacent
to San Fernando and Angeles City. It is not out of
place, therefore, to compare the land values in
Floridablanca to the land values in San Fernando and
Angeles City, and form an idea of the value of the
lands in Floridablanca with reference to the land
values in those two other communities.
The important factor in expropriation proceeding is
that the owner is awarded the just compensation for
his property. We have carefully studied the record,
and the evidence, in this case, and after considering
the circumstances attending the lands in question. We
have arrived at the conclusion that the price of P10.00
per square meter, as recommended by the
commissioners and adopted by the lower court, is
quite high. It is Our considered view that the price of
P5.00 per square meter would be a fair valuation of
the lands in question and would constitute a just
compensation to the owners thereof. In arriving at this
conclusion We have particularly taken into
consideration the resolution of the Provincial
Committee on Appraisal of the province of Pampanga
informing, among others, that in the year 1959 the
land of Castellvi could he sold for from P3.00 to P4.00
per square meter, while the land of Toledo-Gozun
could be sold for from P2.50 to P3.00 per square
meter. The Court has weighed all the circumstances
relating to this expropriations proceedings, and in
fixing the price of the lands that are being
expropriated the Court arrived at a happy medium

between the price as recommended by the

commissioners and approved by the court, and the
price advocated by the Republic. This Court has also
taken judicial notice of the fact that the value of the
Philippine peso has considerably gone down since
the year 1959. 30 Considering that the lands of
Castellvi and Toledo-Gozun are adjoining each other,
and are of the same nature, the Court has deemed it
proper to fix the same price for all these lands.

3. The third issue raised by the Republic relates to the

payment of interest. The Republic maintains that the
lower court erred when it ordered the Republic to pay
Castellvi interest at the rate of 6% per annum on the
total amount adjudged as the value of the land of
Castellvi, from July 1, 1956 to July 10, 1959. We find
merit in this assignment of error.
In ordering the Republic to pay 6% interest on the
total value of the land of Castellvi from July 1, 1956 to
July 10, 1959, the lower court held that the Republic
had illegally possessed the land of Castellvi from July
1, 1956, after its lease of the land had expired on
June 30, 1956, until August 10, 1959 when the
Republic was placed in possession of the land
pursuant to the writ of possession issued by the court.
What really happened was that the Republic
continued to occupy the land of Castellvi after the
expiration of its lease on June 30, 1956, so much so
that Castellvi filed an ejectment case against the
Republic in the Court of First Instance of Pampanga.
31 However, while that ejectment case was pending,
the Republic filed the complaint for eminent domain in
the present case and was placed in possession of the
land on August 10, 1959, and because of the
institution of the expropriation proceedings the
ejectment case was later dismissed. In the order
dismissing the ejectment case, the Court of First
Instance of Pampanga said:
"Plaintiff has agreed, as a matter of fact has already
signed an agreement with defendants, whereby she
had agreed to receive the rent of the lands, subject
matter of the instant case from June 30, 1956 up to
1959 when the Philippine Air Force was placed in
possession by virtue of an order of the Court upon
depositing the provisional amount as fixed by the
Provincial Appraisal Committee with the Provincial
Treasurer of Pampanga; . . ."

If Castellvi had agreed to receive the rentals from

June 30, 1956 to August 10, 1959, she should be
considered as having allowed her land to be leased to
the Republic until August 10, 1959, and she could not
at the same time be entitled to the payment of interest
during the same period on the amount awarded her
as the just compensation of her land. The Republic,
therefore, should pay Castellvi interest at the rate of
6% per annum on the value of her land, minus the
provisional value that was deposited, only from July
10, 1959 when it deposited in court the provisional
value of the land.
4. The fourth error assigned by the Republic relates to
the denial by the lower court of its motion for a new
trial based on nearly discovered evidence. We do not
find merit in this assignment of error.
After the lower court had decided this case on May
26, 1961, the Republic filed a motion for a new trial,
supplemented by another motion, both based upon
the ground of newly discovered evidence. The alleged
newly discovered evidence in the motion filed on June
21, 1961 was a deed of absolute sale executed on
January 25, 1961, showing that a certain Serafin
Francisco had sold to Pablo L. Narciso a parcel of
sugar land having an area of 100,000 square meters
with a sugar quota of 100 piculs, covered by P.A. No.
1701, situated in Barrio Fortuna, Floridablanca, for
P14,000, or P.14 per square meter.
In the supplemental motion, the alleged newly
discovered evidence were: (1) a deed of sale of some
35,000 square meters of land situated at
Floridablanca for P7,500.00 (or about P.21 per square
meter) executed in July, 1959, by the spouses Evelyn
D. Laird and Cornelio G. Laird in favor of spouses
Bienvenido S. Aguas and Josefina Q. Aguas; and (2)
a deed of absolute sale of a parcel of land having an
area of 4,120,101 square meters, including the sugar
quota covered by Plantation Audit No. 16-1345,
situated at Floridablanca, Pampanga, for P860.00 per
hectare (a little less than P.09 per square meter)
executed on October 22, 1957 by Jesus Toledo y
Mendoza in favor of the Land Tenure Administration.
We find that the lower court acted correctly when it
denied the motions for a new trial.
To warrant the granting of a new trial based on the
ground of newly discovered evidence, it must appear

that the evidence was discovered after the trial; that

even with the exercise of due diligence, the evidence
could not have been discovered and produced at the
trial; and that the evidence is of such a nature as to
alter the result of the case if admitted. 32 The lower
court correctly ruled that these requisites were not
complied with.
The lower court, in a well-reasoned order, found that
the sales made by Serafin Francisco to Pablo Narciso
and that made by Jesus Toledo to the Land Tenure
Administration were immaterial and irrelevant,
because those sales covered sugarlands with sugar
quotas, while the lands sought to be expropriated in
the instant case are residential lands. The lower court
also concluded that the land sold by the spouses
Laird to the spouses Aguas was a sugar land.
We agree with the trial court. In eminent domain
proceedings, in order that evidence as to the sale
price of other lands may be admitted in evidence to
prove the fair market value of the land sought to be
expropriated, the lands must, among other things, be
shown to be similar.
But even assuming, gratia argumenti, that the lands
mentioned in those deeds of sale were residential, the
evidence would still not warrant the grant of a new
trial, for said evidence could have been discovered
and produced at the trial, and they cannot be
considered
newly
discovered
evidence
as
contemplated in Section 1(b) of Rule 37 of the Rules
of Court. Regarding this point, the trial court said:
"The Court will now show that there was no
reasonable diligence employed.
"The land described in the deed of sale executed by
Serafin Francisco, copy of which is attached to the
original motion, is covered by a Certificate of Title
issued by the Office of the Register of Deeds of
Pampanga. There is no question in the mind of the
court but this document passed through the Office of
the Register of Deeds for the purpose of transferring
the title or annotating the sale on the certificate of title.
It is true that Fiscal Lagman went to the Office of the
Register of Deeds to check conveyances which may
be presented in the evidence in this case as it is now
sought to be done by virtue of the motions at bar,
Fiscal Lagman, one of the lawyers of the plaintiff, did
not exercise reasonable diligence as required by the
rules. The assertion that he only went to the office of

the Register of Deeds 'now and then' to check the

records in that office only shows the half-hazard [sic]
manner by which the plaintiff looked for evidence to
be presented during the hearing before the
Commissioners, if it is at all true that Fiscal Lagman
did what he is supposed to have done according to
Solicitor Padua. It would have been the easiest matter
for plaintiff to move for the issuance of a subpoena
duces tecum directing the Register of Deeds of
Pampanga to come to testify and to bring with him all
documents found in his office pertaining to sales of
land in Floridablanca adjacent to or near the lands in
question executed or recorded from 1958 to the
present. Even this elementary precaution was not
done by plaintiff's numerous attorneys.
"The same can be said of the deeds of sale attached
to the supplementary motion. They refer to lands
covered by certificate of title issued by the Register of
Deeds of Pampanga. For the same reason they could
have been easily discovered if reasonable diligence
has been exerted by the numerous lawyers of the
plaintiff in this case. It is noteworthy that all these
deeds of sale could be found in several government
offices, namely, in the Office of the Register of Deeds
of Pampanga, the Office of the Provincial Assessor of
Pampanga, the Office of the Clerk of Court as a part
of notarial reports of notaries public that
acknowledged these documents, or in the archives of
the National Library. In respect to Annex 'B' of the
supplementary motion copy of the document could
also be found in the Office of the Land Tenure
Administration, another government entity. Any lawyer
with a modicum of ability handling this expropriation
case would have right away though [sic] of digging up
documents diligently showing conveyances of lands
near or around the parcels of land sought to be
expropriated in this case in the offices that would
have naturally come to his mind such as the offices
mentioned above, and had counsel for the movant
really exercised the reasonable diligence required by
the Rule' undoubtedly they would have been able to
find these documents and/or caused the issuance of
subpoena duces tecum. . . .
"It is also recalled that during the hearing before the
Court of the Report and Recommendation of the
Commissioners and objection thereto, Solicitor Padua
made the observation:
'I understand, Your Honor, that there was a sale that
took place in this place of land recently where the

land was sold for P0.20 which is contiguous to this

land.'
"The Court gave him permission to submit said
document subject to the approval of the Court. . . This
was before the decision was rendered, and later
promulgated on May 26, 1961 or more than one
month after Solicitor Padua made the above
observation. He could have, therefore, checked up
the alleged sale and moved for a reopening to adduce
further evidence. He did not do so. He forgot to
present the evidence at a more propitious time. Now,
he seeks to introduce said evidence under the guise
of newly-discovered evidence. Unfortunately, the
Court cannot classify it as newly-discovered evidence,
because under the circumstances, the correct
qualification that can be given is 'forgotten evidence'.
Forgotten evidence, however, is not newly-discovered
evidence." 33
The granting or denial of a motion for new trial is, as a
general rule, discretionary with the trial court, whose
judgment should not be disturbed unless there is a
clear showing of abuse of discretion. 34 We do not
see any abuse of discretion on the part of the lower
court when it denied the motions for a new trial.

WHEREFORE, the
modified, as follows:

decision

appealed

from

is

(a) the lands of appellees Carmen vda. de Castellvi

and Maria Nieves Toledo-Gozun, as described in the
complaint, are declared expropriated for public use;
(b) the fair market value of the lands of the appellees
is fixed at P5.00 per square meter;
(c) the Republic must pay appellee Castellvi the sum
of P3,796,495.00 as just compensation for her one
parcel of land that has an area of 759,299 square
meters, minus the sum of P151,859.80 that she
withdrew out of the amount that was deposited in
court as the provisional value of the land, with interest
at the rate of 6% per annum from July 10, 1959 until
the day full payment is made or deposited in court;
(d) the Republic must pay appellee Toledo-Gozun the
sum of P2,695,225.00 as the just compensation for
her two parcels of land that have a total area of

539,045 square meters, minus the sum of

P107,809.00 that she withdrew out of the amount that
was deposited in court as the provisional value of her
lands, with interest at the rate of 6%, per annum from
July 10, 1959 until the day full payment is made or
deposited in court;
(e) the attorney's lien of Atty. Alberto Cacnio is
enforced; and
(f) the costs should be paid by appellant Republic of
the Philippines, as provided in Section 12, Rule 67,
and in Section 13 Rule 141, of the Rules of Court.
IT IS SO ORDERED.
Makalintal, C . J ., Barredo, Antonio, Esguerra,
Fernandez, Muoz Palma and Aquino, JJ ., concur.
Castro, Fernando, Teehankee and Makasiar, J J ., did
not take part.
||| (Republic v. Vda. de Castellvi, G.R. No. L-20620,
August 15, 1974)

government to make due compensation which it could

and should have done years ago.
2. ID.; ID.; ID.; ID.; RIGHT TO DAMAGES. The
owner of the land is entitled to damages in the form of
legal interest on the price of the land from the time it
was taken up to the time that payment is made by the
government. In addition, the government should pay
for attorney's fees, the amount of which should be
fixed by the trial court after hearing.
3. ID.; ID.; BASIS FOR DUE COMPENSATION. To
determine the due compensation for the land
appropriated by the Government, the basis should be
the price or value thereof at the time of the taking.
DECISION
FIRST DIVISION

MAKALINTAL, J p:

[G.R. No. L-26400. February 29, 1972.]

This is an appeal from the decision of the Court of

First Instance of Cebu in its Civil Case No. R-5977,
dismissing the plaintiff's complaint.

VICTORIA AMIGABLE, plaintiff-appellant, vs.

NICOLAS CUENCA, as Commissioner of Public
Highways and REPUBLIC OF THE PHILIPPINES,
defendants-appellees.
Quirico del Mar, Domingo Antigua, Antonio Paulin and
N. Capangpangan for plaintiff and appellant.
Assistant Solicitor General Guillermo Torres and
Solicitor Dominador L. Quiroz for defendants and
appellees.
SYLLABUS
1. POLITICAL LAW; EMINENT DOMAIN; PROJECT
USED BY GOVERNMENT FOR ROAD PURPOSES;
RIGHTS OR REGISTERED OWNER TO DUE
COMPENSATION ANYTIME. Considering that no
annotation in favor of the government appears at the
back of her certificate of title and that she has not
executed any deed of conveyance of any portion of
her lot to the government, the appellant remains the
owner of the whole lot. As registered owner, she could
bring an action to recover possession of the portion of
land in question at anytime because possession is
one of the attributes of ownership. However, since
restoration of possession of said portion by the
government is neither convenient nor feasible at this
time because it has been and is now being used for
road purposes, the only relief available is for the

Victoria Amigable, the appellant herein, is the

registered owner of Lot No. 639 of the Banilad Estate
in Cebu City as shown by Transfer Certificate of Title
No. T-18060, which superseded Transfer Certificate of
Title No. RT-3272 (T-3435) issued to her by the
Register of Deeds of Cebu on February 1, 1924. No
annotation in favor of the government of any right or
interest in the property appears at the back of the
certificate. Without prior expropriation or negotiated
sale, the government used a portion of said lot, with
an area of 6,167 square meters, for the construction
of the Mango and Gorordo Avenues.
It appears that said avenues were already existing in
1921 although "they were in bad condition and very
narrow, unlike the wide and beautiful avenues that
they are now," and "that the tracing of said roads was
begun in 1924, and the formal construction in 1925." *
On March 27, 1958 Amigable's counsel wrote the
President of the Philippines, requesting payment of
the portion of her lot which had been appropriated by
the government. The claim was indorsed to the
Auditor General, who disallowed it in his 9th
Indorsement dated December 9, 1958. A copy of said
indorsement was transmitted to Amigable's counsel
by the Office of the President on January 7, 1959.

On February 6, 1959 Amigable filed in the court a quo

a complaint, which was later amended on April 17,
1959 upon motion of the defendants, against the
Republic of the Philippines and Nicolas Cuenca, in his
capacity as Commissioner of Public Highways for the
recovery of ownership and possession of the 6,167
square meters of land traversed by the Mango and
Gorordo Avenues. She also sought the payment of
compensatory damages in the sum of P50,000.00 for
the illegal occupation of her land, moral damages in
the sum of P25,000.00, attorney's fees in the sum of
P5,000.00 and the costs of the suit.
Within the reglementary period the defendants filed a
joint answer denying the material allegations of the
complaint and interposing the following affirmative
defenses, to wit: (1) that the action was premature,
the claim not having been filed first with the Office of
the Auditor General; (2) that the right of action for the
recovery of any amount which might be due the
plaintiff, if any, had already prescribed; (3) that the
action being a suit against the Government, the claim
for moral damages, attorney's fees and costs had no
valid basis since as to these items the Government
had not given its consent to be sued; and (4) that
inasmuch as it was the province of Cebu that
appropriated and used the area involved in the
construction of Mango Avenue, plaintiff had no cause
of action against the defendants.
During the scheduled hearings nobody appeared for
the defendants notwithstanding due notice, so the trial
court proceeded to receive the plaintiff's evidence ex
parte. On July 29, 1959 said court rendered its
decision holding that it had no jurisdiction over the
plaintiff's cause of action for the recovery of
possession and ownership of the portion of her lot in
question on the ground that the government cannot
be sued without its consent; that it had neither original
nor appellate jurisdiction to hear, try and decide
plaintiff's claim for compensatory damages in the sum
of P50,000.00, the same being a money claim against
the government; and that the claim for moral
damages had long prescribed, nor did it have
jurisdiction over said claim because the government
had not given its consent to be sued. Accordingly, the
complaint was dismissed. Unable to secure a
reconsideration, the plaintiff appealed to the Court of
Appeals, which subsequently certified the case to Us,
there being no question of fact involved.

The issue here is whether or not the appellant may

properly sue the government under the facts of the
case.
In the case of Ministerio vs. Court of First Instance of
Cebu, 1 involving a claim for payment of the value of
a portion of land used for the widening of the Gorordo
Avenue in Cebu City, this Court, through Mr. Justice
Enrique M. Fernando, held that where the
government takes away property from a private
landowner for public use without going through the
legal process of expropriation or negotiated sale, the
aggrieved party may properly maintain a suit against
the government without thereby violating the doctrine
of governmental immunity from suit without its
consent. We there said:
". . . If the constitutional mandate that the owner be
compensated for property taken for public use were to
be respected, as it should, then a suit of this character
should not be summarily dismissed. The doctrine of
governmental immunity from suit cannot serve as an
instrument for perpetrating an injustice on a citizen.
Had the government followed the procedure indicated
by the governing law at the time, a complaint would
have been filed by it, and only upon payment of the
compensation fixed by the judgment, or after tender to
the party entitled to such payment of the amount
fixed, may it have the right to enter in and upon the
land so condemned, to appropriate the same to the
public use defined in the judgment.' If there were an
observance of procedural regularity, petitioners would
not be in the sad plaint they are now. It is unthinkable
then that precisely because there was a failure to
abide by what the law requires, the government would
stand to benefit. It is just as important, if not more so,
that there be fidelity to legal norms on the part of
officialdom if the rule of law were to be maintained. It
is not too much to say that when the government
takes any property for public use, which is conditioned
upon the payment of just compensation, to be
judicially ascertained, it makes manifest that it
submits to the jurisdiction of a court. There is no
thought then that the doctrine of immunity from suit
could still be appropriately invoked."
Considering that no annotation in favor of the
government appears at the back of her certificate of
title and that she has not executed any deed of
conveyance of any portion of her lot to the
government, the appellant remains the owner of the
whole lot. As registered owner, she could bring an

action to recover possession of the portion of land in

question at anytime because possession is one of the
attributes of ownership. However, since restoration of
possession of said portion by the government is
neither convenient nor feasible at this time because it
is now and has been used for road purposes, the only
relief available is for the government to make due
compensation which it could and should have done
years ago. To determine the due compensation for the
land, the basis should be the price or value thereof at
the time of the taking. 2
As regards the claim for damages, the plaintiff is
entitled thereto in the form of legal interest on the
price of the land from the time it was taken up to the
time that payment is made by the government. 3 In
addition, the government should pay for attorney's
fees, the amount of which should be fixed by the trial
court after hearing.
WHEREFORE, the decision appealed from is hereby
set aside and the case remanded to the court a quo
for the determination of compensation, including
attorney's fees, to which the appellant is entitled as
above indicated. No pronouncement as to costs.
||| (Amigable v. Cuenca, G.R. No. L-26400, February
29, 1972)

THIRD DIVISION
[G.R. No. 113194. March 11, 1996.]
NATIONAL POWER CORPORATION, petitioner, vs.
COURT OF APPEALS and MACAPANTON
MANGONDATO, respondents.
Jose G. Bruno, Wilfredo J. Collado and Rolando
Gamalinda for petitioner.
Macapanton K. Mangondato in his own behalf.
SYLLABUS
1. POLITICAL LAW; EMINENT DOMAIN; JUST
COMPENSATION; DETERMINATION THEREOF;
GENERAL RULE IS DATE OF FILING OF THE
COMPLAINT. The general rule in determining "just
compensation" in eminent domain is the value of the
property as of the date of the filing of the complaint.
Normally, the time of the taking coincides with the
filing of the complaint for expropriation. Hence, many
rulings of this Court have equated just compensation
with the value of the property as of the time of filing of
the complaint consistent with the above provision of
Section 4, Rule 67 of the Revised Rules of Court. So
too, where the institution of the action precedes entry
into the property, the just compensation is to be
ascertained as of the time of the filing of the
complaint.

2. ID.; ID.; ID.; ID.; ID.; EXCEPTION IS WHERE THE

COURT FIXED THE VALUE OF THE PROPERTY AS
OF THE DATE OF TAKING; NOT APPLICABLE IN
CASE AT BAR. The general rule admits of an
exception; where this Court fixed the value of the
property as of the date it was taken and not at the
date of the commencement of the expropriation
proceedings. This exception finds application where
the owner would be given undue incremental
advantages arising from the use to which the
government devotes the property expropriated as
for instance, the extension of a main thoroughfare as
was the case in Caro de Araullo. In the instant case,
however, it is difficult to conceive of how there could
have been an extra-ordinary increase in the value of
the owner's land arising from the expropriation, as
indeed the records do not show any evidence that the
valuation of P1,000.00 reached in 1992 was due to
increments directly caused by petitioner's use of the
land. Since the petitioner is claiming an exception to
Rule 67, Section 4, it has the burden of proving its
claim that its occupancy and use not ordinary
inflation and increase in land values was the direct
cause of the increase in valuation from 1978 to 1992.
3. ID.; ID.; "TAKING" THEREIN; ELEMENTS; WHEN
SATISFIED IN CASE AT BAR. This Court has
defined the elements of "taking" as the main
ingredient in the exercise of power of eminent
domain, in the following words: "A number of
circumstances must be present in the 'taking' of
property for purposes of eminent domain: (1) the
expropriator must enter a private property; (2) the
entrance into private property must be for more than a
momentary period; (3) the entry into the property
should be under warrant or color of legal authority; (4)
the property must be devoted to a public use or
otherwise informally appropriated or injuriously
affected; and (5) the utilization of the property for
public use must be in such a way to oust the owner
and deprive him of all beneficial enjoyment of the
property." In this case, the petitioner's entrance in
1978 was without intent to expropriate or was not
made under warrant or color of legal authority, for it
believed the property was public land covered by
PROCLAMATION NO. 1354 and flatly refused the
claim for compensation. Only in 1990, did the
petitioner recognize private respondent's ownership
and negotiate for the voluntary purchase of the
property. A Deed of Sale with provisional payment and
subject to negotiations for the correct price was then
executed. This is not the intent nor the expropriation

contemplated by law. This is a simple attempt at a

voluntary purchase and sale. Petitioner neglected
and/or refused to exercise the power of eminent
domain. Only in 1992, did petitioner manifest its
intention to exercise the power of eminent domain.
4. ID.; ID.; JUST COMPENSATION; VALUATION OF
COMMISSIONERS; FINDINGS OF FACTS OF THE
COURT OF APPEALS, RESPECTED. In an
expropriation case where the principal issue is the
determination of just compensation, as is the case
here, a trial before Commissioners is indispensable to
allow the parties to present evidence on the issue of
just compensation. Inasmuch as the determination of
just compensation in eminent domain cases is a
judicial function and factual findings of the Court of
Appeals are conclusive on the parties and reviewable
only when the case falls within the recognized
exceptions, which is not the situation obtaining in this
petition, we see no reason to disturb the factual
findings as to valuation of the subject property. As can
be gleaned from the records, the court-and-theparties-appointed commissioners did not abuse their
authority in evaluating the evidence submitted to them
nor misappropriate the clear preponderance of
evidence. The amount fixed and agreed to by the
respondent appellate Court is not grossly exorbitant.
DECISION
PANGANIBAN, J p:
At what point in time should the value of the land
subject of expropriation be computed: at the date of
the "taking" or the date of the filing of the complaint
for eminent domain? This is the main question posed
by the parties in this petition for review on certiorari
assailing the Decision 1 of the Court of Appeals 2
which affirmed in toto the decision of the Regional
Trial Court of Marawi City. 3 The dispositive portion of
the decision of the trial court reads: 4
"WHEREFORE, the prayer in the recovery case for
Napocor's surrender of the property is denied but
Napocor is ordered to pay monthly rentals in the
amount of P15,000.00 from 1978 up to July 1992 with
12% interest per annum from which sum the amount
of P2,199,500.00 should be deducted; and the
property is condemned in favor of Napocor effective
July 1992 upon payment of the fair market value of
the property at One Thousand (P1,000.00) Pesos per
square meter or a total of Twenty-One Million Nine

Hundred Ninety-Five Thousand (P21,995,000.00)

Pesos.

specifying any particular land-owner. The City

Appraisal Committee in its Minutes dated March 8,
1990, fixed the fair market value as follows: 7

"SO ORDERED. Costs against NAPOCOR."

'Land Fair Market Value Per Sq. M.
The Facts
The facts are undisputed by both the petitioner and
the private respondent, 5 and are quoted from the
Decision of the respondent Court, 6 as follows:
"In 1978, National Power Corporation (NAPOCOR),
took possession of a 21,995 square meter land which
is a portion of Lot 1 of the subdivision plan (LRC) Psd116159 situated in Marawi City, owned by
Mangondato, and covered by Transfer Certificate of
Title No. T-378-A, under the mistaken belief that it
forms part of the public land reserved for use by
NAPOCOR for hydroelectric power purposes under
PROCLAMATION NO. 1354 of the President of the
Philippines dated December 3, 1974.
"NAPOCOR alleged that the subject land was until
then possessed and administered by Marawi City so
that in exchange for the city's waiver and quitclaim of
any right over the property, NAPOCOR had paid the
city a 'financial assistance' of P40.00 per square
meter.
"In 1979, when NAPOCOR started building its Agus I
HE (Hydroelectric Plant) Project, Mangondato
demanded
compensation
from
NAPOCOR.
NAPOCOR refused to compensate insisting that the
property is public land and that it had already paid
'financial assistance' to Marawi City in exchange for
the rights over the property.
"Mangondato claimed that the subject land is his duly
registered private property covered by Transfer
Certificate of Title No. T-378-A in his name, and that
he is not privy to any agreement between NAPOCOR
and Marawi City and that any payment made to said
city cannot be considered as payment to him.
"More than a decade later NAPOCOR acceded to the
fact that the property belongs to Mangondato.
"At the outset, in March, 1990, NAPOCOR's regional
legal counsel, pursuant to Executive Order No. 329
dated July 11, 1988 requested Marawi City's City
Appraisal Committee to appraise the market value of
the property in Saduc, Marawi City affected by the
infrastructure projects of NAPOCOR without

Price Per Sq. M Price per Sq. M.

Along the City Not in the City
National Highway National Highway
P150 Residential Lot P100

NAPOCOR has to pay not less than P300.00 per

square meter. NAPOCOR's general counsel
incorporated the foregoing findings in his report to the
board plus the data that the area possessed by
NAPOCOR is 21,995 square meters, and that the
legal rate of interest per annum from the time of the
taking of the property alleged to be in 1978, is 12%,
but recommended to the board that the fair market
value of the property is P100.00 per square meter;
NAPOCOR's board on May 17, 1991 passed
Resolution No. 91-247 resolving to pay Mangondato
P100.00 per square meter for the property excluding
12% interest per annum (id., pp. 50-52).

P250 Commercial Lot P180

P300 Industrial Lot P200
(Records, Civil Case No. 610-92, p. 20).
"On July 13, 1990, NAPOCOR's National Power
Board (hereafter NAPOCOR's board) passed
Resolution No. 90-225 resolving to pay Mangondato
P100.00 per square meter for only a 12,132 square
meter portion of the subject property plus 12%
interest per annum from 1978. However, in the August
7, 1990 board meeting, confirmation of said resolution
was deferred to allow NAPOCOR's regional legal
counsel to determine whether P100.00 per square
meter is the fair market value. (Records, Civil Case
No. 605-92, p. 45).
"On August 14, 1990, NAPOCOR's board passed
Resolution No. 90-316 resolving that Mangondato be
paid the base price of P40.00 per square meter for
the 12,132 square meter portion (P485,280.00) plus
12% interest per annum from 1978 (P698,808.00)
pending the determination whether P100.00 per
square meter is the fair market value of the property
(id.).
"Pursuant
to
the
aforementioned
resolution
Mangondato was paid P1,184,088.00 (id., p. 58).
NAPOCOR's regional legal counsel's findings
embodied in 2 memoranda to NAPOCOR's general
counsel (dated January 29, 1991 and February 19,
1991) state that Mangondato's property is classified
as industrial, that the market value of industrial lots in
Marawi City when NAPOCOR took possession is
P300.00 for those along the national highway and
P200.00 for those not along the highway and that on
the basis of recent Supreme Court decisions,

"In a letter dated December 17, 1991, Mangondato

disagreed with the NAPOCOR board's Resolution No.
91-247 pegging the compensation for his land at
P100.00 per square meter without interest from 1978.
Mangondato submitted that the fair market value of
his land is even more than the P300.00 (per) square
meter stated in the City Appraisal Report but that for
expediency, he is willing to settle for P300.00 per
square meter plus 12% interest per annum from 1978
(id., pp. 53-59).
"In another letter dated February 4, 1992,
Mangondato reiterated his disagreement to the
P100.00 per square meter compensation without
interest. At the same time, to get partial payment, he
asked that he be paid in the meantime, P100.00 per
square meter without prejudice to pursuing his claim
for the proper and just compensation plus interest
thereon (id., p. 60).
"On February 12, 1992, NAPOCOR's general counsel
filed a memorandum for its president finding no legal
impediment if they, in the meantime were to pay
Mangondato P100.00 per square meter without
prejudice to the final determination of the proper and
just compensation by the board inasmuch as the
regional counsel submitted to him (general counsel) 2
memoranda stating that the appraisal of industrial lots
in Marawi City when NAPOCOR took possession is
P300.00 per square meter for those along the national
highway and P200.00 per square meter for those not
along the highway, and that NAPOCOR has to pay
not less than P300.00 per square meter plus 12%
interest on the basis of recent Supreme Court
decisions. Further, the general counsel submitted that

since the board has already set the purchase price at

P100.00 per square meter (Resolution No. 91-247).
NAPOCOR would not be prejudiced thereby (id., pp.
60-62).

"The temporary restraining order was issued by the

lower court. Anent the prayer for the writ of
preliminary mandatory injunction, NAPOCOR filed its
Opposition thereto on July 23, 1992 (id., pp. 17-20).

"In March, 1992, the parties executed a Deed of Sale

Of A Registered Property where NAPOCOR acceded
to Mangondato's request of provisional payment of
P100.00 per square meter excluding interest and
without prejudice to Mangondato's pursuance of
claims for just compensation and interest.
Mangondato was paid P1,015,412.00 in addition to
the P1,184,088.00 earlier paid to him by NAPOCOR
which payments total P2,199,500.00 for the 12,995
square meter land (Records, Civil Case No. 610-92,
pp. 85-87).

"Before the lower court could resolve the pending

incident on the writ of preliminary mandatory
injunction, and instead of filing a motion to dismiss,
NAPOCOR, on July 27, 1992, filed also before the
lower court, Civil Case No. 610-92 which is a
Complaint for eminent domain against Mangondato
over the subject property (Records, Civil Case No.
610-92, pp. 1-3).

"In his letter to NAPOCOR's president dated April 20,

1992, Mangondato asked for the payment of P300.00
per square meter plus 12% interest per annum from
1978. NAPOCOR's president, in his memorandum to
the board dated April 24, 1992 recommended the
approval of Mangondato's request (Records, Civil
Case No. 605-92, pp. 63-69).
"On May 25, 1992, NAPOCOR's board passed
Resolution No. 92-121 granting its president the
authority to negotiate for the payment of P100.00 per
square meter for the land plus 12% interest per
annum from 1978 less the payments already made to
Mangondato and to Marawi City on the portion of his
land and with the provisos that said authorized
payment shall be effected only after Agus I HE Project
has been placed in operation and that said payment
shall be covered by a deed of absolute sale with a
quitclaim executed by Mangondato (id., pp. 70-71).
"On July 7, 1992, Mangondato filed before the lower
court Civil Case No. 605-92 against NAPOCOR
seeking to recover the possession of the property
described in the complaint as Lots 1 and 3 of the
subdivision plan (LRC) Psd-116159 against
NAPOCOR, the payment of a monthly rent of
P15,000.00 from 1978 until the surrender of the
property, attorney's fees and costs, and the issuance
of a temporary restraining order and a writ of
preliminary mandatory injunction to restrain
NAPOCOR from proceeding with any construction
and/or improvements on Mangondato's land or from
committing any act of dispossession (id., pp. 1-8).

"On the same date Mangondato filed his

Manifestation in Lieu of Answer contending that the
negotiations for payment made by NAPOCOR were
'virtual dictations' on a 'take it or leave it' basis; that he
was given the 'run-around' by NAPOCOR for 15
years; so that there was no agreement reached as to
payment because of NAPOCOR's insistence of its
own determination of the price; that he treats the
P2,199.500.00 so far received by him as partial
payment for the rent for the use of his property.
Mangondato prayed that he be compensated in
damages for the unauthorized taking and continued
possession of his land from 1978 until the filing of the
Complaiant (sic) in the expropriation case; that should
the lower court order the expropriation of the subject
property, that the just compensation for the land be
reckoned from the time of the filing of the
expropriation case; that the expropriation case be
consolidated with the recovery of possession case;
that the restraining order issued in the recovery of
possession case be maintained and a writ of
preliminary injunction be at once issued against
NAPOCOR; and that NAPOCOR be ordered to
deposit the value of the land as provisionally
determined by the lower court (id., pp. 4-5).
"Upon agreement of the parties, the 2 cases were
ordered consolidated and the lower court appointed
the following commissioners: Atty. Saipal Alawi,
representing the lower court; Atty. Connie Doromal,
representing NAPOCOR; and Mr. Alimbsar A. Ali, from
the City Assessor's Office to ascertain and report to
the court the just compensation (id., pp. 6-7).
"The lower court ordered NAPOCOR to deposit with
the Philippine National Bank the amount of
P10,997,500.00, provisionally fixing the value of the
land at P500.00 per square meter P100.00 lower than

the assessed value of the land appearing in Tax

Declaration No. 0873 for 1992 which was used as
basis by the lower court (id., p. 8).
"In its Motion for Reconsideration of the Order For
Provisional Deposit[,] NAPOCOR opposed the
provisional value quoted by the lower court saying
that the basis of the provisional value of the land
should be the assessed value of the property as of
the time of the taking which in this case is 1978 when
the assessed value of the land under Tax Declaration
No. 7394 was P100.00 per square meter (id., pp. 2832). In reply, Mangondato filed his Opposition To
Motion For Reconsideration Of the Order For
Provisional Deposit (id., pp. 44-46). However, the
lower court did not rule on the provisional value to be
deposited and chose to go right into the determination
of just compensation on the ground that the
'provisional valuation could not be decided without
going into the second phase of expropriation cases
which is the determination by the court of the just
compensation for the property soguht (sic) to be taken
(NPC vs. Jocson, supra)' (Decision, p. 5).
"On August 5, 1992, Mangondato filed a Motion To
Dismiss in the expropriation case alleging that
NAPOCOR filed its Complaint for eminent domain not
for the legitimate aim of pursuing NAPOCOR's
business and purpose but to legitimize a patently
illegal possession and at the same time continue
dictating its own valuation of the property. Said motion
was however, later withdrawn by Mangondato (id., pp.
37-39 and 47).
"In the meanwhile, the commissioners filed their
respective reports. On July 28, 1992, Commissioner
Doromal filed his report recommending a fair market
value of P300.00 per square meter as of November
23, 1978, (id., pp. 11-27). On August 6, 1992,
Commissioners Alawi and Ali filed their joint report
recommending a fair market value of P1,000.00 per
square meter as of 1992 (id., pp. 40-42).
"After the parties filed their respective comments to
the commissioners' reports, on August 21, 1992, the
lower court rendered its decision denying
Mangondato recovery of possession of the property
but ordering NAPOCOR to pay a monthly rent of
P15,000.00 from 1978 up to July 1992 with 12%
interest per annum and condemning the property in
favor of NAPOCOR effective July, 1992 upon the

payment of P1,000.00 per square meter or a total of

P21,995,000.00 as just compensation.

3 and declared that intervenors' Motion

Intervention has become moot (id., p. 82).

"Mangondato filed a Motion For Partial Execution

Pending Appeal which was granted by the lower court
in an Order dated September 15, 1992 (id., pp. 151152 and 157-160). However, on appeal by NAPOCOR
via a Petition For Certiorari in CA-G.R. SP No. 28971
to this Court, said Order was annulled and set aside
(Rollo, pp. 30-37).

"On October 13, 1992 the intervenors filed their

Motion To Reconsider The Order Of August 25, 1992
and The Decision Dated August 21, 1992 which was
however denied by the lower court in an Order dated
November 26, 1992 (id., pp. 162-184)."

"NAPOCOR filed a Motion For Reconsideration of the

decision alleging that the fair market value of the
property at the time it was taken allegedly in 1978 is
P40.00 per square meter. After Mangondato filed his
Opposition To Motion For Reconsideration the lower
court denied NAPOCOR's motion for reconsideration
in an Order dated September 15, 1992 (Records, Civil
Case No. 610-92, pp. 145-149).
"In the meanwhile, on August 7, 1992, Mangondato
filed an Ex-Parte Manifestation To Correct Clerical
Error of Description of Property submitting that Lot 3
which does not form part of the subject property was
included in the Complaint because of a clerical error
inadvertently committed by the typist who
continuously copied the description of the property
covered by Transfer Certificate of Title No. T-378-A,
and thus praying that the position of the Complaint
describing Lot 3 be deleted (Records, Civil Case No.
605-92, p. 22).
"On August 12, 1992, the intervenors filed their Motion
For Intervention and Intervention claiming interest
against each of the parties on the ground that Lot 3
which is included in the Complaint has since been
conveyed by Mangondato to their predecessors-ininterest and that they are entitled to just
compensation from NAPOCOR should the lower court
decide that NAPOCOR is entitled to expropriate the
entire area described in the Complaint (id., pp. 23-34).

"In an Order dated August 19, 1992 the lower court

granted intervenor's Motion For Intervention (id., p.
72).
"On August 25, 1992, the lower court ordered the
deletion of the portion in the Complaint describing Lot

For

The Issues
Two errors were raised before this Court by the
petitioner, thus: 8
"ASSIGNMENT OF ERRORS
THE RESPONDENT COURT ERRED IN AFFIRMING
THAT THE JUST COMPENSATION FOR THE
PROPERTY IS ITS VALUE IN 1992, WHEN THE
COMPLAINT WAS FILED, AND NOT ITS VALUE IN
1978, WHEN THE PROPERTY WAS TAKEN BY
PETITIONER.
THE COURT ERRED IN FIXING THE VALUE OF
JUST COMPENSATION AT P1,000.00 PER SQUARE
METER INSTEAD OF P40.00 PER SQUARE
METER."
The petitioner summarized the two issues it raised by
asking "whether or not the respondent court was
justified in deviating from the well-settled doctrine that
just compensation is the equivalent of the value of the
property taken for public use reckoned from the time
of taking." 9 In his Comment, private respondent
worded the issues as follows: 10
". . . As stated by the respondent court, Napocor, in its
appeal
'. . . avers that the taking of the proerty (sic) should
not be reckoned as of the year 1992 when
NAPOCOR filed its Complaint for eminent domain but
as of the year 1978 when it took possession of the
property, and that the just compensation, determined
as it should be, on the basis of the value of the
property as of 1978, as P40.00 per square meter.' "
The petitioner, after failing to persuade both lower
courts, reiterated before us its proposition (with cited
cases) "that when the taking of property precedes the
filing of the judicial proceeding, the value of the
property at the time it was taken shall be the basis for
the payment of just compensation." 11

The First Issue: Date of Taking or Date of Suit?

The general rule in determining "just compensation" in
eminent domain is the value of the property as of the
date of the filing of the complaint, as follows: 12
"Sec. 4. Order of Condemnation. When such a motion
is overruled or when any party fails to defend as
required by this rule, the court may enter an order of
condemnation declaring that the plaintiff has a lawful
right to take the property sought to be condemned, for
the public use or purpose described in the complaint,
upon the payment of just compensation to be
determined as of the date of the filing of the complaint
. . ." (Emphasis supplied).
Normally, the time of the taking coincides with the
filing of the complaint for expropriation. Hence, many
rulings of this Court have equated just compensation
with the value of the property as of the time of filing of
the complaint consistent with the above provision of
the Rules. So too, where the institution of the action
precedes entry into the property, the just
compensation is to be ascertained as of the time of
the filing of the complaint. 13
The general rule, however, admits of an exception:
where this Court fixed the value of the property as of
the date it was taken and not at the date of the
commencement of the expropriation proceedings.
In the old case of Provincial Government of Rizal vs.
Caro de Araullo, 14 the Court ruled that ". . . the
owners of the land have no right to recover damages
for this unearned increment resulting from the
construction of the public improvement (lengthening
of Taft Avenue from Manila to Pasay) for which the
land was taken. To permit them to do so would be to
allow them to recover more than the value of the land
at the time when it was taken, which is the true
measure of the damages, or just compensation, and
would discourage the construction of important public
improvements."
In subsequently cases, 15 the Court, following the
above doctrine, invariably held that the time of taking
is the critical date in determining lawful or just
compensation. Justifying this stance, Mr. Justice (later
Chief Justice) Enrique Fernando, speaking for the
Court in Municipality of La Carlota vs. The Spouses
Felicidad Baltazar and Vicente Gan, 16 said, ". . . the
owner as is the constitutional intent, is paid what he is

entitled to according to the value of the property so

devoted to public use as of the date of the taking.
From that time, he had been deprived thereof. He had
no choice but to submit. He is not, however, to be
despoiled of such a right. No less than the
fundamental law guarantees just compensation. It
would be an injustice to him certainly if from such a
period, he could not recover the value of what was
lost. There could be on the other hand, injustice to the
expropriator if by a delay in the collection, the
increment in price would accrue to the owner. The
doctrine to which this Court has been committed is
intended precisely to avoid either contingency fraught
with unfairness."
Simply stated, the exception finds application where
the owner would be given undue incremental
advantages arising from the use to which the
government devotes the property expropriated as
for instance, the extension of a main thoroughfare as
was the case in Caro de Araullo. In the instant case,
however, it is difficult to conceive of how there could
have been an extra-ordinary increase in the value of
the owner's land arising from the expropriation, as
indeed the records do not show any evidence that the
valuation of P1,000.00 reached in 1992 was due to
increments directly caused by petitioner's use of the
land. Since the petitioner is claiming an exception to
Rule 67, Section 4, 17 it has the burden of proving its
claim that its occupancy and use not ordinary
inflation and increase in land values was the direct
cause of the increase in valuation from 1978 to 1992.
Side Issue: When is There "Taking" of Property
But there is yet another cogent reason why this
petition should be denied and why the respondent
Court should be sustained. An examination of the
undisputed factual environment would show that the
"taking" was not really made in 1978.
This Court has defined the elements of "taking" as the
main ingredient in the exercise of power of eminent
domain, 18 in the following words:
"A number of circumstances must be present in the
'taking' of property for purposes of eminent domain:
(1) the expropriator must enter a private property; (2)
the entrance into private property must be for more
than a momentary period; (3) the entry into the
property should be under warrant or color of legal
authority; (4) the property must be devoted to a public
use or otherwise informally appropriated or injuriously

affected; and (5) the utilization of the property for

public use must be in such a way to oust the owner
and deprive him of all beneficial enjoyment of the
property." (Emphasis supplied)
In this case, the petitioner's entrance in 1978 was
without intent to expropriate or was not made under
warrant or color of legal authority, for it believed the
property
was
public
land
covered
by
PROCLAMATION NO. 1354. When the private
respondent raised his claim of ownership sometime in
1979, the petitioner flatly refused the claim for
compensation, nakedly insisted that the property was
public land and wrongly justified its possession by
alleging it had already paid "financial assistance" to
Marawi City in exchange for the rights over the
property. Only in 1990, after more than a decade of
beneficial use, did the petitioner recognize private
respondent's ownership and negotiate for the
voluntary purchase of the property. A Deed of Sale
with provisional payment and subject to negotiations
for the correct price was then executed. Clearly, this is
not the intent nor the expropriation contemplated by
law. This is a simple attempt at a voluntary purchase
and sale. Obviously, the petitioner neglected and/or
refused to exercise the power of eminent domain. cdll
Only in 1992, after the private respondent sued to
recover possession and petitioner filed its Complaint
to expropriate, did petitioner manifest its intention to
exercise the power of eminent domain. Thus, the
respondent Court correctly held: 19
"If We decree that the fair market value of the land be
determined as of 1978, then We would be sanctioning
a deceptive scheme whereby NAPOCOR, for any
reason other than for eminent domain would occupy
another's property and when later pressed for
payment, first negotiate for a low price and then
conveniently expropriate the property when the land
owner refuses to accept its offer claiming that the
taking of the property for the purpose of eminent
domain should be reckoned as of the date when it
started to occupy the property and that the value of
the property should be computed as of the date of the
taking despite the increase in the meantime in the
value of the property."
In Noble vs. City of Manila, 20 the City entered into a
lease-purchase agreement of a building constructed
by the petitioner's predecessor-in-interest in
accordance with the specifications of the former. The

Court held that being bound by the said contract, the

City could not expropriate the building. Expropriation
could be resorted to "only when it is made necessary
by the opposition of the owner to the sale or by the
lack of any agreement as to the price." Said the Court:
"The contract, therefore, in so far as it refers to the
purchase of the building, as we have interpreted it, is
in force, not having been revoked by the parties or by
judicial decision. This being the case, the city being
bound to buy the building at an agreed price, under a
valid and subsisting contract, and the plaintiff being
agreeable to its sale, the expropriation thereof, as
sought by the defendant, is baseless. Expropriation
lies only when it is made necessary by the opposition
of the owner to the sale or by the lack of any
agreement as to the price. There being in the present
case a valid and subsisting contract, between the
owner of the building and the city, for the purchase
thereof at an agreed price, there is no reason for the
expropriation." (Emphasis supplied)

In the instant case, petitioner effectively repudiated

the deed of sale it entered into with the private
respondent when it passed Resolution No. 92-121 on
May 25, 1992 authorizing its president to negotiate,
inter alia, that payment "shall be affected only after
Agus I HE project has been placed in operation." It
was only then that petitioner's intent to expropriate
became manifest as private respondent disagreed
and, barely a month after, filed suit.
The Second Issue: Valuation
We now come to the issue of valuation.
The fair market value as held by the respondent
Court, is the amount of P1,000.00 per square meter.
In an expropriation case where the principal issue in
the determination of just compensation, as is the case
here, a trial before Commissioners is indispensable to
allow the parties to present evidence on the issue of
just compensation. 21 Inasmuch as the determination
of just compensation in eminent domain cases is a
judicial function 22 and factual findings of the Court of
Appeals are conclusive on the parties and reviewable
only when the case falls within the recognized
exception, 23 which is not the situation obtaining in
this petition, we see no reason to disturb the factual
findings as to valuation of the subject property. As can

be gleaned from the records, the court-and-theparties-appointed commissioners did not abuse their
authority in evaluating the evidence submitted to them
nor misappreciate the clear preponderance of
evidence. The amount fixed and agreed to by the
respondent appellate Court is not grossly exorbitant.
24 To quote: 25
"Commissioner Ali comes from the Office of the
Register of Deeds who may well be considered an
expert, with a general knowledge of the appraisal of
real estate and the prevailing prices of land in the
vicinity of the land in question so that his opinion on
the valuation of the property cannot be lightly brushed
aside.
"The prevailing market value of the land is only one of
the determinants used by the commissioners' report
the others being as herein shown:
xxx xxx xxx
"Commissioner Doromal's report, recommending
P300.00 per square meter, differs from the 2
commissioners only because his report was based on
the valuation as of 1978 by the City Appraisal
Committee as clarified by the latter's chairman in
response to NAPOCOR's general counsel's query
(id., pp. 128-129)."
In sum, we agree with the Court of Appeals that
petitioner has failed to show why it should be granted
an exemption from the general rule in determining just
compensation provided under Section 4 of Rule 67.
On the contrary, private respondent has convinced us
that, indeed, such general rule should in fact be
observed in this case.
WHEREFORE, the petition is hereby DISMISSED
and the judgment appealed from AFFIRMED, except
as to the interest on the monthly rentals, which is
hereby reduced from twelve percent (12%) to the
legal rate of six percent (6%) per annum. Costs
against the petitioner.
SO ORDERED.
Narvasa, C.J., Davide, Jr., Melo and Francisco, JJ.,
concur.
||| (National Power Corp. v. Court of Appeals, G.R. No.
113194, March 11, 1996)

control of a municipality's waterworks system may be

vested in the NAWASA without destroying the integrity
of the said municipality's right of dominion. Ownership
is nothing without the inherent rights of possession,
control and enjoyment. Where the owner is deprived
of the ordinary and beneficial use of his property or of
its value by its being diverted to public use, there is
taking within the constitutional sense. (Taada &
Fernando, Constitution of the Philippines, 4th ed., Vol.
I, 215-216).
DECISION
MAKALINTAL, J p:
The municipality of La Carlota was the owner of the
waterworks system serving its inhabitants until the
enactment of Republic Act No. 1383 on June 28,
1955, when by virtue of its provisions the National
Waterworks and Sewerage Authority (NAWASA)
assumed ownership and took over the supervision,
administration and control of the said system,
including the collection of water rentals from the
consumers. On April 5, 1950 the municipality
commenced this action in the Court of First Instance
of Negros Occidental against the NAWASA for
recovery and accounting. On September 27, 1961
judgment was rendered as follows:

FIRST DIVISION
[G.R. No. L-20232. September 30, 1964.]
MUNICIPALITY OF LA CARLOTA, plaintiffappellee, vs. NATIONAL WATERWORKS and
SEWERAGE AUTHORITY (NAWASA), defendantappellant.
Rodolfo M. Uriarte, Rolando N. Medalla, Ernesto Ma.
Uriarte and Abundio B. Huelar for plaintiff-appellee.
Government
appellant.

Corporate

Counsel

for

defendant-

SYLLABUS
1. CONSTITUTIONAL LAW; TRANSFER TO
NAWASA OF JURISDICTION, SUPERVISION AND
CONTROL OF MUNICIPAL WATERWORKS IS
UNCONSTITUTIONAL. The contention of the
NAWASA that although ownership of municipal
waterworks may not be validly transferred to the
NAWASA under Republic Act No. 1383, yet said law
authorizes the NAWASA to "have jurisdiction,
supervision and control" over all government owned
Municipal Waterworks, is held untenable because it is
hard to conceive how the jurisdiction, supervision and

"EN VIRTUD DE LO EXPUESTO, el Juzgado falla

esta causa condenado a la demandada para que
restituya al demandante el dominio y titulo, asi como
la posesion, supervision, administracion y control del
sistema de traida de aguas del Municipio de la
Carlota.
"Se ordena, asimismo, a la demandada para que
dentro del plazo de 30 dias a contar desde le fecha
en que esta decision quede firme y ejecutoria, rinda
una cuenta detallada de todas las cantidades
cobradas por ella de los consumidores del sistema
durante el periodo de itempo desde que se hizo cargo
del sistema hasta la fecha en que actualmente haya
restituido al demandante dicho sistema.
"Por falta de pruebas, se sobresee la reconvencion
interpuesta por la demandada.
"Las costas del juicio se tasaran en contra de la
demandada."

In the present appeal by the defendant it assigns one

error in the judgment, namely, "in holding that the
possession,
administration,
supervision
and
maintenance of the La Carlota water system is vested
in the municipality of La Carlota . . . even on the
assumption that ownership of said system belongs to
the municipality."
The appellant concedes, on the authority of City of
Baguio vs. NAWASA, 57 O.G. No. 9, p. 1584, and
City of Cebu vs. NAWASA, G.R. No. L-12892, April
20, 1960, that in so far as Republic Act No. 1383
transfers ownership of the water system of the
appellee to the appellant the said Act is
unconstitutional because it does not provide for the
payment of just compensation as required by the
Constitution, the transfer being in the nature of
expropriation of private (patrimonial) property.
However, it is contended that although ownership may
not thus be transferred, the law (Sec. 1) also
authorizes the NAWASA to have jurisdiction,
supervision and control over . . . all areas now served
by existing government owned waterworks and
sewerage and drainage systems within the
boundaries of cities, municipalities, and municipal
districts in the Philippines . . . "On this ground the
appellant prays that the judgment appealed from be
reversed in part and that the return to it of the
"possession, supervision, administration and control
of the La Carlota waterworks system" be ordered.
In City of Cebu vs. NAWASA, supra, which was an
action for declaratory relief, this Court did not squarely
pass upon the question of whether, apart from
ownership, the defendant could exercise "jurisdiction,
supervision and control" over the Cebu waterworks
system without paying just compensation. It is true
that the trial court upheld the exercise of such right in
its decision, leaving for future determination and
question of what would constitute acts of ownership
and what would be considered as an exercise of
jurisdiction, supervision and control, but this Court on
appeal did not treat the particular matter as an issue
before it and neither passed upon it nor rendered a
ruling thereon. That case is therefore no authority for
the position of the appellant here as presented in its
lone assignment of error. Neither may it find support
in the statement in our decision in City of Baguio vs.
NAWASA, supra, that "unless this aspect of the law
(concerning payment of just compensation is clarified
and appellee is given its due compensation, appellee
cannot be deprived of its property even if appellant

desires to take over the administration in line with the

spirit of the law." This Court, in said decision, took
note of the authorities cited by the appellant therein to
sustain its contention that Congress has the power,
without impairing vested rights, to transfer property of
a municipal corporation from one government agency
to another as long as such property continues to be
devoted to its original purpose. But the decision
precisely pointed out that those authorities are not in
point, since the transfers involved therein were merely
for purposes of administration, the ownership of and
benefits from the property being retained by the
municipal corporations concerned, whereas the clear
intent of Republic Act No. 1383 'is to affect a real
transfer of the ownership of the waterworks . . . and
does not merely encompass a transfer of
administration."
It is hard to conceive how the jurisdiction, supervision
and control of the appellee's waterworks system may
be vested in the appellant without destroying the
integrity of the appellee's right of dominion.
Ownership is nothing without the inherent rights of
possession, control and enjoyment. Where the owner
is deprived of the ordinary and beneficial use of his
property or of its value by its being diverted to public
use, there is taking within the constitutional sense.
Taada & Fernando, Constitution of the Philippines,
4th ed., Vol. 1, 215-216. Such deprivation would be
the certain consequence if, as prayed for by the
appellant, it should be allowed to assume jurisdiction
supervision and control over the waterworks system
of the appellee. That would be little less than all
assumption of ownership itself and not of mere
administration.
The judgment appealed from is affirmed, with costs.
Bengzon, C.J., Bautista Angelo, Reyes, J.B.L.,
Paredes, Dizon, Regala, Bengzon, J.P. and Zaldivar,
JJ., concur.
Concepcion and Barrera, JJ., took no part.
||| (Municipality of La Carlota v. NAWASA, G.R. No. L20232, September 30, 1964)

subject to the payment of just compensation to be

determined by the court. Normally, of course, the
power of eminent domain results in the taking or
appropriation of title to, and possession of, the
expropriated property; but no cogent reason appears
why the said power may not be availed of to impose
only a burden upon the owner of condemned
property, without loss of title and possession. It is
unquestionable that the real property may, through
expropriation, be subjected to an easement of right of
way. The use of the PLDT's lines and services to
allow interservice connection between both telephone
systems is not much different. In either case private
property is subjected to a burden for public use and
benefit. If, under Section 6, Article XIII, of the
Constitution, the State may, in the interest of national
welfare, transfer utilities to public ownership upon
payment of just compensation, there is no reason why
the State may not require a public utility to render
services in the general interest, provided just
compensation is paid therefor.

EN BANC
[G.R. No. L-18841. January 27, 1969.]
REPUBLIC OF THE PHILIPPINES, plaintiffappellant, vs. PHILIPPINE LONG DISTANCE
TELEPHONE COMPANY, defendant-appellant.
Solicitor General Arturo A. Alafriz, Assistant Solicitor
General Antonio A. Torres and Solicitor Camilo D.
Quiason for plaintiff- appellant.
Ponce Enrile, Siguion Reyna, Montecillo & Belo for
defendant-appellant.
SYLLABUS
1.CONSTITUTIONAL LAW; EMINENT DOMAIN;
EXPROPRIATION OF PUBLIC SERVICE UTILITIES;
PAYMENT OF JUST COMPENSATION LIKE
EXPROPRIATION OF REAL PROPERTY. Where
the Republic may not compel the PLDT to celebrate a
contract with it, the Republic may, in the exercise of
the sovereign power of eminent domain, require the
telephone company to permit interconnection of the
government telephone system and that of the PLDT,
as the needs of the government service may require,

2.ID.; ID.; ID.; DISMISSAL OF PETITION BY COURT

A QUO NOT PROPER IN INSTANT CASE. The
Republic's cause of action to compel the PLDT to
execute a contract with the former, through the
Bureau, for the use of the facilities of defendant's
telephone system throughout the Philippines under
such terms and conditions as the court might consider
reasonable, is predicated upon the radio telephonic
isolation of Bureau's facilities from the outside World if
the severance of the interconnection were to be
carried out by the PLDT, thereby preventing the
Bureau of Telecommunications from properly
discharging its functions, to the prejudice of the
general public. Save for the prayer to compel the
PLDT to enter into a contract (and the prayer is no
essential part of the pleading), the averments make
out a case for compulsory rendering of interconnecting services by the telephone company upon
such terms and conditions as the court may
determine to be just. And since the lower court found
that both parties "are practically at one that defendant
(PLDT) is entitled to reasonable compensation from
plaintiff for the reasonable use of the former's
telephone facilities" the lower court should have
proceeded to treat the case as one of condemnation
of such services independently of contract and
proceeded to determine the just and reasonable
compensation for the same, instead of dismissing the
petition.

3.ID.; ID.; ID.; CFI AND NOT THE PSC HAS

AUTHORITY TO EXERCISE JURISDICTION IN
EXPROPRIATION OF PUBLIC UTILITIES. The
plea that the court of first instance had no jurisdiction
to entertain the petition and that the proper forum for
the action was the Public Service Commission, under
the law, the Public Service Commission has no
authority to pass upon actions for the taking of private
property under the sovereign right of eminent domain.
Furthermore, while the defendant telephone company
is a public utility corporation whose franchise,
equipment and other properties are under the
jurisdiction, supervision and control of the Public
Service
Commission,
yet
the
plaintiff's
telecommunications network is a public service
owned by the Republic and operated by an
instrumentality of the National Government, hence,
exempt under Section 14 of the Public Service Act,
from such jurisdiction, supervision and control. The
Bureau of Telecommunications was created in
pursuance of a state policy reorganizing the
government offices and the determination of state
policy is not vested in the Commission.
4.REMEDIAL LAW; ESTOPPEL; GOVERNMENT
NOT ESTOPPED BY THE MISTAKE OF ITS
AGENTS. Section 79, subsection (b), of Executive
Order No. 94, Series of 1947 does not limit the
Bureau of Telecommunications to non-commercial
activities or prevents it from serving the general
public. It may be that in its original prospectuses the
Bureau officials had stated that the service would be
limited to government offices; but such limitations
could not block future expansion of the system, as
authorized by the terms of the Executive Order, nor
could the officials of the Bureau bind the Government
not to engage in services that are authorized by law. It
is a well-known rule that erroneous application and
enforcement of the law by public officers do not block
subsequent correct application of the statute and that
the Government is never estopped by mistake or error
on the part of its agents.
5.CIVIL LAW; CONTRACTS; FREEDOM TO
STIPULATE TERMS AND CONDITIONS; PARTIES
CAN NOT BE COERCED. Parties can not be
coerced to enter into a contract where no agreement
is had between them as to the principal terms and
conditions of the contract. Freedom to stipulate such
terms and condition is of the essence of our
contractual system, and by express provision of the
statute, a contract may be annulled if tainted by

violence, intimidation or undue influence (Articles

1306, 1336, 1337, Civil Code of the Philippines).

certain powers and duties formerly vested in the

Director of Posts:

6.ID.; ID.; FRAUDULENT CONTRACT OR UNFAIR

COMPETITION NOT PRESENT IN CASE AT BAR.
The theses that the Bureau's commercial services
constituted unfair competition, and that the Bureau
was guilty of fraud and abuse under its contract, are
untenable: (1) the competition is merely hypothetical,
the demand for telephone service being very much
more than the supposed competitors can supply, (2)
the PLDT franchise is non-exclusive, that it is wellknown that defendant PLDT is unable to adequately
cope with the current demands for telephone service
and that its right to just compensation for the services
rendered to the Government telephone system and its
users is herein recognized and preserved, and (3)
when the Bureau of Telecommunications subscribed
to the trunk lines, defendant knew or should have
known that their use by the subscriber was more or
less public and all embracing in nature and the
acceptance by the defendant of the payment of
rentals, despite its knowledge that the plaintiff had
extended the use of the trunk lines to commercial
purposes, implies assent by the defendant to such
extended use. To uphold the PLDT's contention is to
subordinate the needs of the general public to the
right of the PLDT to derive profit from the future
expansion of its services under its non-exclusive
franchise.

"SEC. 79.The Bureau of Telecommunications shall

exercise the following powers and duties:

DECISION
REYES, J.B.L., J p:
Direct appeals, upon a joint record on appeal, by both
the plaintiff and the defendant from the dismissal,
after hearing, by the Court of First Instance of Manila,
in its Civil Case No. 35805, of their respective
complaint and counterclaims, but making permanent
a preliminary mandatory injunction therefore issued
against the defendant on the inter-connection of
telephone facilities owned and operated by said
parties.
The plaintiff, Republic of the Philippines, is a political
entity exercising governmental powers through its
branches and instrumentalities, one of which is the
Bureau of Telecommunications. That office was
created on 1 July 1947, under Executive Order No.
94, with the following powers and duties, in addition to

"(a)To operate and maintain existing wire-telegraph

and radio- telegraph offices, stations, and facilities,
and those to be established to restore the pre-war
telecommunication service under the Bureau of Posts,
as well as such additional offices or stations as may
hereafter
be
established
to
provide
telecommunication service in places requiring such
service;
"(b)To investigate, consolidate, negotiate for, operate
and maintain wire-telephone or radio telephone
communication service throughout the Philippines by
utilizing such existing facilities in cities, towns, and
provinces as may be found feasible and under such
terms and conditions or arrangements with the
present owners or operators thereof as may be
agreed upon to the satisfaction of all concerned;
"(c)To prescribe, subject to approval by the
Department Head, equitable rates of charges for
messages handled by the system and/or for timecalls
and other services that may be rendered by said
system;
"(d)To establish and maintain coastal stations to serve
ships at sea or aircrafts and, when public interest so
requires,
to
engage
in
the
international
telecommunication service in agreement with other
countries desiring to establish such service with the
Republic of the Philippines; and
"(e)To abide by all existing rules and regulations
prescribed by the International Telecommunication
Convention relative to the accounting, disposition and
exchange of messages handled in the international
service, and those that may hereafter be promulgated
by said convention and adhered to by the
Government of the Republic of the Philippines." 1
The defendant, Philippine Long Distance Telephone
Company (PLDT for short), is a public service
corporation holding a legislative franchise, Act 3426,
as amended by Commonwealth Act 407, to install,
operate and maintain a telephone system throughout
the Philippines and to carry on the business of
electrical transmission of messages within the

Philippines and between the Philippines and the

telephone systems of other countries. 2 The RCA
Communications, Inc., (which is not a party to the
present case, but has contractual relations with the
parties) is an American corporation authorized to
transact business in the Philippines and is the
grantee, by assignment, of a legislative franchise to
operate a domestic station for the reception and
transmission of long distance wireless messages (Act
2178) and to operate broadcasting and radiotelephone and radio-telegraphic communications
services (Act 3180) 3
Sometime in 1933, the defendant, PLDT, and the RCA
Communications, Inc., entered into an agreement
whereby telephone messages, coming from the
United States and received by RCA's domestic
station, could automatically be transferred to the lines
of PLDT; and vice-versa, for calls collected by the
PLDT for transmission from the Philippines to the
United States. The contracting parties agreed to
divide the tolls, as follows: 25% to PLDT and 75% to
RCA. The sharing was amended in 1941 to 30% for
PLDT and 70% for RCA, and again amended in 1947
to a 50-50 basis. The arrangement was later
extended to radio-telephone messages to and from
European and Asiatic countries. Their contract
contained a stipulation that either party could
terminate it on a 24-month notice to the other. 4 On 2
February 1956, PLDT gave notice to RCA to
terminate their contract on 2 February 1956. 5
Soon after its creation in 1947, the Bureau of
Telecommunications set up its own Government
Telephone System by utilizing its own appropriation
and equipment and by renting trunk lines of the PLDT
to enable government offices to call private parties. 6
Its application for the use of these trunk lines was in
the usual form of applications for telephone service,
containing a statement, above the signature of the
applicant, that the latter will abide by the rules and
regulations of the PLDT which are on file with the
Public Service Commission. 7 One of the many rules
prohibits the public use of the service furnished the
telephone subscriber for his private use. 8 The
Bureau has extended its services to the general
public since 1948, 9 using the same trunk lines owned
by, and rented from, the PLDT, and prescribing its (the
Bureau's) own schedule of rates. 10 Through these
trunk lines, a Government Telephone System (GTS)
subscriber could make a call to a PLDT subscriber in

the same way that the latter could make a call to the
former.
On 5 March 1958, the plaintiff, through the Director of
Telecommunications, entered into an agreement with
RCA Communications, Inc., for a joint overseas
telephone service whereby the Bureau would convey
radio-telephone overseas calls received by RCA's
station to and from local residents. 11 Actually, they
inaugurated this joint operation on 2 February 1958,
under a "provisional" agreement. 12
On 7 April 1958, the defendant, Philippine Long
Distance Telephone Company, complained to the
Bureau of Telecommunications that said bureau was
violating the conditions under which their Private
Branch Exchange (PBX) is interconnected with the
PLDT's facilities, referring to the rented trunk lines, for
the Bureau had used the trunk lines not only for the
use of government offices but even to serve private
persons or the general public, in competition with the
business of the PLDT; and gave notice that if said
violations were not stopped by midnight of 12 April
1958, the PLDT would sever the telephone
connections. 13 When the PLDT received no reply, it
disconnected the trunk lines being rented by the
Bureau at midnight on 12 April 1958. 14 The result
was the isolation of the Philippines, on telephone
services, from the rest of the world, except the United
States. 15
At that time, the Bureau was maintaining 5,000
telephones and had 5,000 pending applications for
telephone connection. 16 The PLDT was also
maintaining 60,000 telephones and had also 20,000
pending applications. 17 Through the years, neither of
them has been able to fill up the demand for
telephone service.
The Bureau of Telecommunications had proposed to
the PLDT on 8 January 1958 that both enter into an
interconnecting agreement, with the government
paying (on a call basis) for all calls passing through
the interconnecting facilities from the Government
Telephone System to the PLDT. 18 The PLDT replied
that it was willing to enter into an agreement on
overseas telephone service to Europe and Asian
countries provided that the Bureau would submit to
the jurisdiction and regulations of the Public Service
Commission and in consideration of 37 1/2% of the
gross revenues. 19 In its memorandum in lieu of oral
argument in this Court dated 9 February 1964, on

page 8, the defendant reduced its offer to 33 1/3%

(1/3) as its share in the overseas telephone service.
The proposals were not accepted by either party.
On 12 April 1958, plaintiff Republic commenced suit
against the defendant, Philippine Long Distance
Telephone Company, in the Court of First Instance of
Manila (Civil Case No. 35805), praying in its
complaint for judgment commanding the PLDT to
execute a contract with plaintiff, through the Bureau,
for the use of the facilities of defendant's telephone
system throughout the Philippines under such terms
and conditions as the court might consider
reasonable, and for a writ of preliminary injunction
against the defendant company to restrain the
severance of the existing telephone connections
and/or restore those severed.
Acting on the application of the plaintiff, and on the
ground that the severance of telephone connections
by the defendant company would isolate the
Philippines from other countries, the court a quo, on
14 April 1958, issued an order for the defendant:
"(1) to forthwith reconnect and restore the seventyeight (78) trunk lines that it has disconnected between
the facilities of the Government Telephone System,
including its overseas telephone services, and the
facilities of defendant; (2) to refrain from carrying into
effect its threat to sever the existing telephone
communication
between
the
Bureau
of
Telecommunications and defendant, and not to make
connection over its telephone system of telephone
calls coming to the Philippines from foreign countries
through the said Bureau's telephone facilities and the
radio facilities Of RCA Communications, Inc.; and (3)
to accept and connect through its telephone system
all such telephone calls coming to the Philippines
from foreign countries until further order of this
Court."
On 28 April 1958, the defendant company filed its
answer, with counterclaims.
It denied any obligation on its part to execute a
contract of services with the Bureau of
Telecommunications; contested the jurisdiction of the
Court of First Instance to compel it to enter into
interconnecting agreements, and averred that it was
justified to disconnect the trunk lines heretofore
leased to the Bureau of Telecommunications under
the existing agreement because its facilities were

being used in fraud of its rights. The PLDT further

claimed that the Bureau was engaging in commercial
telephone operations in excess of authority, in
competition with, and to the prejudice of, the PLDT,
using defendant's own telephone poles, without
proper accounting of revenues.
After trial, the lower court rendered judgment that it
could not compel the PLDT to enter into an
agreement with the Bureau because the parties were
not in agreement; that under Executive Order 94,
establishing the Bureau of Telecommunications, said
Bureau was not limited to servicing government
offices alone, nor was there any in the contract of
lease of the trunk lines, since the PLDT knew, or
ought to have known, at the time that their use by the
Bureau was to be public throughout the Islands,
hence the Bureau was neither guilty of fraud, abuse,
or misuse of the poles of the PLDT; and, in view of
serious public prejudice that would result from the
disconnection of the trunk lines, declared the
preliminary injunction permanent, although it
dismissed both the complaint and the counterclaims.
Both parties appealed.
Taking up first the appeal of the Republic, the latter
complains of the action of the trial court in dismissing
the part of its complaint seeking to compel the
defendant to enter into an interconnecting contract
with it, because the parties could not agree on the
terms and conditions of the interconnection, and of its
refusal to fix the terms and conditions therefor.
We agree with the court below that parties can not be
coerced to enter into a contract where no agreement
is had between them as to the principal terms and
conditions of the contract. Freedom to stipulate such
terms and conditions is of the essence of our
contractual system, and by express provision of the
statute, a contract may be annulled if tainted by
violence, intimidation or undue influence (Articles
1306, 1336, 1337, Civil Code of the Philippines). But
the court a quo has apparently overlooked that while
the Republic may not compel the PLDT to celebrate a
contract with it, the Republic may, in the exercise of
the sovereign power of eminent domain, require the
telephone company to permit interconnection of the
government telephone system and that of the PLDT,
as the needs of the government service may require,
subject to the payment of just compensation to be
determined by the court. Normally, of course, the

power of eminent domain results in the taking or

appropriation of title to, and possession of, the
expropriated property; but no cogent reason appears
why the said power may not be availed of to impose
only a burden upon the owner of condemned
property, without loss of title and possession. It is
unquestionable that real property may, through
expropriation, be subjected to an easement of right of
way. The use of the PLDT's lines and services to
allow interservice connection between both telephone
systems is not much different. In either case private
property is subjected to a burden for public use and
benefit. If under Section 6, Article XIII, of the
Constitution, the State may, in the interest of national
welfare, transfer utilities to public ownership upon
payment of just compensation, there is no reason why
the State may not require a public utility to render
services in the general interest, provided just
compensation is paid therefor. Ultimately, the
beneficiary of the interconnecting service would be
the users of both telephone systems, so that the
condemnation would be for public use.

The Bureau of Telecommunications, under Section

78(b) of Executive Order No. 94, may operate and
maintain wire telephone or radio telephone
communications throughout the Philippines by
utilizing existing facilities in cities, towns, and
provinces under such terms and conditions or
arrangement with present owners or operators as
may be agreed upon to the satisfaction of all
concerned; but there is nothing in this Section that
would exclude resort to condemnation proceedings
where unreasonable or unjust terms and conditions
are exacted, to the extent of crippling or seriously
hampering the operations of said Bureau.
A perusal of the complaint shows that the Republic's
cause of action is predicated upon the radio
telephonic isolation of the Bureau's facilities from the
outside world if the severance of interconnection were
to be carried out by the PLDT, thereby preventing the
Bureau of Telecommunications from properly
discharging its functions, to the prejudice of the
general public. Save for the prayer to compel the
PLDT to enter into a contract (and the prayer is no
essential part of the pleading), the averments make
out a case for compulsory rendering of interconnecting services by the telephone company upon

such terms and conditions as the court may

determine to be just. And since the lower court found
that both parties "are practically at one that defendant
(PLDT) is entitled to reasonable compensation from
plaintiff for the reasonable use of the former's
telephone facilities" (Decision, Record on Appeal,
page 224), the lower court should have proceeded to
treat the case as one of condemnation of such
services independently of contract and proceeded to
determine the just and reasonable compensation for
the same, instead of dismissing the petition.
This view we have taken of the true nature of the
Republic's petition necessarily results in overruling the
plea of defendant- appellant PLDT that the court of
first instance had no jurisdiction to entertain the
petition and that the proper forum for the action was
the Public Service Commission. That body, under the
law, has no authority to pass upon actions for the
taking of private property under the sovereign right of
eminent domain. Furthermore, while the defendant
telephone company is a public utility corporation
whose franchise, equipment and other properties are
under the jurisdiction, supervision and control of the
Public Service Commission (Sec. 13, Public Service
Act), yet the plaintiff's telecommunications network is
a public service owned by the Republic and operated
by an instrumentality of the National Government,
hence exempt, under Section 14 of the Public Service
Act, from such jurisdiction, supervision and control.
The Bureau of Telecommunications was created in
pursuance of a state policy reorganizing the
government offices
"to meet the exigencies attendant upon the
establishment of the free and independent
Government of the Republic of the Philippines, and
for the purpose of promoting simplicity, economy and
efficiency in its operation" (Section 1, Republic Act
No. 51)
and the determination of state policy is not vested in
the Commission (Utilities Com. vs. Bartonville Bus
Line, 290 Ill. 574; 124 N.E. 373)
Defendant PLDT, as appellant, contends that the
court below was in error in not holding that the Bureau
of Telecommunications was not empowered to
engage in commercial telephone business, and in
ruling that said defendant was not justified in
disconnecting the telephone trunk lines it had
previously leased to the Bureau. We find that the

court a quo ruled

assertions.

correctly in rejecting

both

Executive Order No. 94, Series of 1947, reorganizing

the Bureau of Telecommunications, expressly
empowered the latter in its Section 79, subsection (b),
to "negotiate for, operate and maintain wire telephone
or radio telephone communication service throughout
the Philippines," and, in subsection (c), "to prescribe
subject to approval by the Department Head,
equitable rates of charges for messages handled by
the system and/or for time calls and other services
that may be rendered by the system." Nothing in
these provisions limits the Bureau to non-commercial
activities or prevents it from serving the general
public. It may be that in its original prospectuses the
Bureau officials had stated that the service would be
limited to government offices: but such limitations
could not block future expansion of the system, as
authorized by the terms of the Executive Order, nor
could the officials of the Bureau bind the Government
not to engage in services that are authorized by law. It
is a well-known rule that erroneous application and
enforcement of the law by public officers do not block
subsequent correct application of the statute (PLDT
vs. Collector of Internal Revenue, 90 Phil. 676), and
that the Government is never estopped by mistake or
error on the part of its agents (Pineda vs. Court of
First Instance of Tayabas, 52 Phil. 803, 807; Benguet
Consolidated Mining Co. vs. Pineda, 98 Phil. 711,
724)
The theses that the Bureau's commercial services
constituted unfair competition, and that the Bureau
was guilty of fraud and abuse under its contract, are,
likewise, untenable.
First, the competition is merely hypothetical, the
demand for telephone service being very much more
than the supposed competitors can supply. As
previously noted, the PLDT had 20,000 pending
applications at the time, and the Bureau had another
5,000. The telephone company's inability to meet the
demands for service are notorious even now. Second,
the charter of the defendant expressly provides:
"Sec. 14.The rights herein granted shall not be
exclusive, and the rights and power to grant to any
corporation, association or person other than the
grantee franchise for the telephone or electrical
transmission of messages or signals shall not be

impaired or affected by the granting of this franchise:

" (Act 3436)
And third, as the trial court correctly stated, "when the
Bureau of Telecommunications subscribed to the
trunk lines, defendant knew or should have known
that their use by the subscriber was more or less
public and all embracing in nature, that is, throughout
the Philippines, if not abroad" (Decision, Record on
Appeal, page 216)
The acceptance by the defendant of the payment of
rentals, despite its knowledge that the plaintiff had
extended the use of the trunk lines to commercial
purposes, continuously since 1948, implies assent by
the defendant to such extended use. Since this
relationship has been maintained for a long time and
the public has patronized both telephone systems,
and their interconnection is to the public convenience,
it is too late for the defendant to claim misuse of its
facilities, and it is not now at liberty to unilaterally
sever the physical connection of the trunk lines.
". . ., but there is high authority for the position that,
when such physical connection has been voluntarily
made, under a fair and workable arrangement and
guaranteed by contract and the continuous line has
come to be patronized and established as a great
public convenience, such connection shall not in
breach of the agreement be severed by one of the
parties. In that case, the public is held to have such
an interest in the arrangement that its rights must
receive due consideration. This position finds
approval in State ex rel. vs. Cadwaller, 172 Ind. 619,
636, 87 N.E. 650, and is stated in the elaborate and
learned opinion of Chief Justice Myers as follows:
`Such physical connection cannot be required as of
right, but if such connection is voluntarily made by
contract, as is here alleged to be the case, so that the
public acquires an interest in its continuance, the act
of the parties in making such connection is equivalent
to a declaration of a purpose to waive the primary
right of independence, and it imposes upon the
property such a public status that it may not be
disregarded' citing Mohan v. Mich. Tel. Co., 132
Mich, 242, 93 N.W. 629, and the reasons upon which
it is in part made to rest are referred to in the same
opinion, as follows: `Where private property is by the
consent of the owner invested with a public interest or
privilege for the benefit of the public, the owner can
no longer deal with it as private property only, but
must hold it subject to the rights of the public in the
exercise of that public interest or privilege conferred

for their benefit.' Allnut v. Inglis (1810) 12 East, 527.

The doctrine of this early case is the acknowledged
law." (Clinton-Dunn Tel. Co. v. Carolina Tel. & Tel. Co.,
74 S.E. 636, 638)

favor of the telegraph wires of the government should

not be extended to its telephone line, any time that
the government decided to engage also in this kind of
communication.

It is clear that the main reason for the objection of the

PLDT lies in the fact that said appellant did not expect
that the Bureau's telephone system would expand
with such rapidity as it has done; but this expansion is
no ground for the discontinuance of the service
agreed upon.

In the ultimate analysis, the true objection of the

PLDT to continue the link between its network and
that of the Government is that the latter competes
"politically" (sic) with its own telephone services.
Considering, however, that the PLDT franchise is nonexclusive; that it is well-known that defendant PLDT is
unable to adequately cope with the current demands
for telephone service, as shown by the number of
pending applications therefor; and that the PLDT's
right to just compensation for the services rendered to
the Government telephone system and its users is
herein recognized and preserved, the objections of
defendant-appellant are without merit. To uphold the
PLDT's contention is to subordinate the needs of the
general public to the right of the PLDT to derive profit
from the future expansion of its services under its
non-exclusive franchise.

The last issue urged by the PLDT as appellant is its

right to compensation for the use of its poles for
bearing telephone wires of the Bureau of
Telecommunications. Admitting that Section 19 of the
PLDT charter reserves to the Government
"the privilege without compensation of using the poles
of the grantee to attach one ten-pin cross-arm, and to
install, maintain and operate wires of its telegraph
system thereon: Provided, however, That the Bureau
of Posts shall have the right to place additional crossarms and wires on the poles of the grantee by paying
a compensation, the rate of which is to be agreed
upon by the Director of Posts and the grantee; "
the defendant counterclaimed for P8,772.00 for the
use of its poles by the plaintiff, contending that what
was allowed free use, under the aforequoted
provision, was one ten-pin cross-arm attachment and
only for plaintiff's telegraph system, not for its
telephone system; that said Section could not refer to
the plaintiff's telephone system, because it did not
have such telephone system when defendant
acquired its franchise. The implication of the
argument is that plaintiff has to pay for the use of
defendant's poles if such use is for plaintiff's
telephone system and has to pay also if it attaches
more than one (1) ten-pin cross-arm for telegraphic
purposes.
As there is no proof that the telephone wires strain the
poles of the PLDT more than the telegraph wires, nor
that they cause more damage than the wires of the
telegraph system, or that the Government has
attached to the poles more than one ten-pin in crossarm as permitted by the PLDT charter, we see no
point in this assignment of error. So long as the
burden to be borne by the PLDT poles is not
increased, we see no reason why the reservation in

WHEREFORE, the decision of the Court of First

Instance, now under appeal, is affirmed, except in so
far as it dismisses the petition of the Republic of the
Philippines to compel the Philippine Long Distance
Telephone Company to continue servicing the
Government telephone system upon such terms, and
for a compensation, that the trial court may determine
to be just, including the period elapsed from the filing
of the original complaint or petition. And for this
purpose, the records are ordered returned to the court
of origin for further hearings and other proceedings
not inconsistent with this opinion. No costs.
Concepcion, C.J., Dizon, Makalintal, Zaldivar,
Sanchez, Ruiz Castro, Fernando, Capistrano,
Teehankee and Barredo, JJ., concur.
||| (Republic v. PLDT Co., G.R. No. L-18841, January
27, 1969)

Radio and television broadcasting companies do not

own the airwaves and frequencies through which they
transmit broadcast signals and images. They are
merely given the temporary privilege of using them or
franchise, the exercise of the which may reasonably
be burdened with the performance by the grantee of
some form of public service, such as providing print
space or air time to Comelec. Section 92 of B.P. Blg.
881 must be deemed incorporated in R.A. No. 7252
granting GMA Network, Inc. a franchise and does not
constitute denial of due process and that B.P. Blg.
881, 92 is not an invalid amendment of petitioner's
franchise but the enforcement of a duty voluntarily
assumed by petitioner in accepting a public grant of
privilege.
An administrative agency cannot, in the exercise of
lawmaking, amend a statute of Congress. Therefore
2 of Resolution No. 2983-A of the Comelec providing
for payment of just compensation is invalid.
B.P. Blg. 881, 92 does not single out radio and
television stations in providing free air time. There are
important differences in the characteristics of the
broadcast media and the print media, which justify
their differential treatment for free speech purposes.
EN BANC

The freedom of television and radio broadcasting is

somewhat lesser in scope than the freedom accorded
to newspaper and print media.

[G.R. No. 132922. April 21, 1998.]

TELECOMMUNICATIONS
AND
BROADCAST
ATTORNEYS OF THE PHILIPPINES, INC. and GMA
NETWORK,
INC.,
petitioners,
vs.
THE
COMMISSION ON ELECTIONS, respondent.
SYNOPSIS
Section 11 (b) of R.A. No. 6646 prohibits the sale or
donation of print space or air time for political ads,
except to the Commission on Elections. Petitioners
challenge the validity thereof on the ground (1) that it
takes property without due process of law and without
just compensation; (2) that it denies radio and
television broadcast companies the equal protection
of the laws; and (3) that it is in excess of the power
given to the COMELEC to supervise or regulate the
operation of media of communication or information
during the period of election. AICHaS

What the COMELEC is authorized to supervise or

regulate by Art. IX-C, 4 of the Constitution, among
other things, is the use by media of information of
their franchises or permits, while what Congress (not
the COMELEC) prohibits is the sale or donation of
print space or air time for political ads. In other words,
the object of supervision or regulation is different from
the object of the prohibition.
SYLLABUS
1. REMEDIAL LAW; ACTIONS; PARTIES; LOCUS
STANDI; LAWYERS OF RADIO AND TELEVISION
BROADCASTING
COMPANIES
WITHOUT
STANDING TO QUESTION OPERATION OF
SECTION 92 OF B. P. BLG. 881 PROVIDING FREE
COMELEC AIR TIME. At the threshold of this suit
is the question of standing of petitioner
Telecommunications and Broadcast Attorneys of the
Philippines, Inc. (TELEBAP). As already noted, its
members assert an interest as lawyers of radio and

television broadcasting companies and as citizens,

taxpayers, and registered voters. In those cases in
which citizens were authorized to sue, this Court
upheld their standing in view of the "transcendental
importance" of the constitutional question raised
which justified the granting of relief. In contrast, in the
case at bar, as will presently be shown, petitioners'
substantive claim is without merit. To the extent,
therefore, that a party's standing is determined by the
substantive merit of his case or a preliminary estimate
thereof, petitioner TELEBAP must be held to be
without standing. Indeed, a citizen will be allowed to
raise a constitutional question only when he can show
that he has personally suffered some actual or
threatened injury as a result of the allegedly illegal
conduct of the government; the injury is fairly
traceable to the challenged action; and the injury is
likely to be redressed by a favorable action. Members
of petitioner have not shown that they have suffered
harm as a result of the operation of 92 of B.P. Blg.
881. Nor do members of petitioner TELEBAP have an
interest as registered voters since this case does not
concern their right of suffrage. Their interest in 92 of
B.P. Blg. 881 should be precisely in upholding its
validity. Much less do they have an interest as
taxpayers since this case does not involve the
exercise by Congress of its taxing or spending power.
A party suing as a taxpayer must specifically show
that he has a sufficient interest in preventing the
illegal expenditure of money raised by taxation and
that he will sustain a direct injury as a result of the
enforcement of the questioned statute. Nor indeed as
a corporate entity does TELEBAP have standing to
assert the rights of radio and television broadcasting
companies. Standing jus tertii will be recognized only
if it can be shown that the party suing has some
substantial relation to the third party, or that the third
party cannot assert his constitutional right, or that the
right of the third party will be diluted unless the party
in court is allowed to espouse the third party's
constitutional claim. None of these circumstances is
here present. The mere fact that TELEBAP is
composed of lawyers in the broadcast industry does
not entitle them to bring this suit in their name as
representatives of the affected companies.
2. ID.; ID.; ID.; ID.; OPERATOR OF RADIO AND TV
BROADCAST STATIONS WITH STANDING TO
CHALLENGE
RESOLUTION
OF
COMELEC
PROVIDING FREE AIR TIME. Nevertheless, we
have decided to take this case since the other
petitioner, GMA Network, Inc., appears to have the

requisite standing to bring this constitutional

challenge. Petitioner operates radio and television
broadcast stations in the Philippines affected by the
enforcement of 92 of B.P. Blg. 881 requiring radio
and television broadcast companies to provide free air
time to the COMELEC for the use of candidates for
campaign and other political purposes.
3.
CONSTITUTIONAL
LAW;
LEGISLATIVE
DEPARTMENT; FRANCHISE OF RADIO AND TV
STATIONS;
SUBJECT
TO
AMENDMENT,
ALTERATION OR REPEAL. All broadcasting,
whether by radio or by television stations, is licensed
by the government. Airwave frequencies have to be
allocated as there are more individuals who want to
broadcast than there are frequencies to assign. A
franchise is thus a privilege subject, among other
things, to amendment by Congress in accordance
with the constitutional provision that "any such
franchise or right granted . . . shall be subject to
amendment, alteration or repeal by the Congress
when the common good so requires."
4. ID.; ID.; ID.; COMELEC RESOLUTION
PROVIDING
FREE
COMELEC
TIME,
AN
AMENDMENT THERETO; CASE AT BAR. The
idea that broadcast stations may be required to
provide COMELEC Time free of charge is not new. It
goes back to the Election Code of 1971 (R.A. No.
6388). This provision was carried over with slight
modification by the 1978 Election Code (P.D. No.
1296). Substantially the same provision is now
embodied in 92 of B.P. Blg. 881. Indeed, provisions
for COMELEC Time have been made by amendment
of the franchises of radio and television broadcast
stations and, until the present case was brought, such
provisions had not been thought of as taking property
without just compensation. Art. XII, 11 of the
Constitution authorizes the amendment of franchises
for "the common good." What better measure can be
conceived for the common good than one for free air
time for the benefit not only of candidates but even
more of the public, particularly the voters, so that they
will be fully informed of the issues in an election? "[I]t
is the right of the viewers and listeners, not the right of
the broadcasters which is paramount. Radio and
television broadcasting companies, which are given
franchises, do not own the airwaves and frequencies
through which they transmit broadcast signals and
images. They are merely given the temporary
privilege of using them. Since a franchise is a mere
privilege, the exercise of the privilege may reasonably

be burdened with the performance by the grantee of

some form of public service.
5. ID.; ID.; ID.; ID.; RADIO AND TV BROADCAST
STATIONS DO NOT OWN THE AIRWAVES; NO
PROPERTY TAKEN WHERE THEY WERE
REQUIRED TO PROVIDE FREE AIRTIME TO
COMELEC. As held in Red Lion Broadcasting Co.
v. F.C.C., which upheld the right of a party personally
attacked to reply, "licenses to broadcast do not confer
ownership of designated frequencies, but only the
temporary privilege of using them." Consequently, "a
license permits broadcasting, but the license has no
constitutional right to be the one who holds the
license or to monopolize a radio frequency to the
exclusion of his fellow citizens. There is nothing in the
First Amendment which prevents the Government
from requiring a licensee to share his frequency with
others and to conduct himself as a proxy or fiduciary
with obligations to present those views and voices
which are representative of his community and which
would otherwise, by necessity, be barred from the
airwaves." As radio and television broadcast stations
do not own the airwaves, no private property is taken
by the requirement that they provide air time to the
COMELEC.
6. ID.; ID.; ID.; SECTION 92 OF B.P. Blg. 881, A
VALID AMENDMENT OF GMA'S FRANCHISE. It is
noteworthy that 49 of R.A. No. 6388, from which 92
of B.P. Blg. 881 was taken, expressly provided that
the COMELEC Time should "be considered as part of
the public service time said stations are required to
furnish the Government for the dissemination of public
information and education under their respective
franchises or permits." There is no reason to suppose
that 92 of B.P. Blg. 881 considers the COMELEC
Time therein provided to be otherwise than as a public
service which petitioner is required to render under 4
of its charter (R.A. No. 7252). In sum, B.P. Blg. 881,
92 is not an invalid amendment of petitioner's
franchise but the enforcement of a duty voluntarily
assumed by petitioner in accepting a public grant of
privilege.

7. ADMINISTRATIVE LAW; ADMINISTRATIVE

AGENCY; CANNOT IN THE EXERCISE OF
LAWMAKING, AMEND A STATUTE OF CONGRESS.
Thus far, we have confined the discussion to the

provision of 92 of B.P. Blg. 881 for free air time

without taking into account COMELEC Resolution No.
2983-A, 2. This is because the amendment providing
for the payment of "just compensation" is invalid,
being in contravention of 92 of B.P. Blg. 881 that
radio and television time given during the period of
the campaign shall be "free of charge." Indeed,
Resolution No. 2983 originally provided that the time
allocated shall be "free of charge," just as 92
requires such time to be given "free of charge." The
amendment appears to be a reaction to petitioners'
claim in this case that the original provision was
unconstitutional because it allegedly authorized the
taking of property without just compensation. The
Solicitor General, relying on the amendment, claims
that there should be no more dispute because the
payment of compensation is now provided for. It is
basic, however, that an administrative agency cannot,
in the exercise of lawmaking, amend a statute of
Congress. Since 2 of Resolution No. 2983-A is
invalid, it cannot be invoked by the parties.
8. CONSTITUTIONAL LAW; BILL OF RIGHTS;
EQUAL PROTECTION OF THE LAWS; IMPORTANT
DIFFERENCES BETWEEN PRINT AND AIR MEDIA
JUSTIFY DIFFERENTIAL TREATMENT FOR FREE
SPEECH PURPOSES. Petitioners complain that
B.P. Blg. 881, 92 singles out radio and television
stations to provide free air time. They contend that
newspapers and magazines are not similarly required
as, in fact, in Philippine Press Institute v. COMELEC
we upheld their right to the payment of just
compensation for the print space they may provide
under 90. The argument will not bear analysis. It
rests on the fallacy that broadcast media are entitled
to the same treatment under the free speech
guarantee of the Constitution as the print media.
There are important differences in the characteristics
of the two media, however, which justify their
differential treatment for free speech purposes.
Because of the physical limitations of the broadcast
spectrum, the government must, of necessity allocate
broadcast frequencies to those wishing to use them.
There is no similar justification for government
allocation and regulation of the print media. In the
allocation of limited resources, relevant conditions
may validly be imposed on the grantees or licensees.
The reason for this is that, as already noted, the
government spends public funds for the allocation and
regulation of the broadcast industry, which it does not
do in the case of the print media. To require the radio
and television broadcast industry to provide free air

time for the COMELEC Time is a fair exchange for

what the industry gets. From another point of view,
this Court has also held that because of the unique
and pervasive influence of the broadcast media,
"[n]ecessarily . . . the freedom of television and radio
broadcasting is somewhat lesser in scope than the
freedom accorded to newspaper and print media."
Petitioners' assertion therefore that 92 of B.P. Blg
881 denies them the equal protection of the law has
no basis.
9. ID.; COMMISSION ON ELECTIONS; POWER TO
REGULATE; DIFFERENT FROM POWER OF
CONGRESS TO PROHIBIT. It is argued that the
power to supervise or regulate given to the
COMELEC under Art. IX-C, 4 of the Constitution
does not include the power to prohibit. In the first
place, what the COMELEC is authorized to supervise
or regulate by Art. IX-C, 4 of the Constitution, among
other things, is the use by media of information of
their franchises or permits, while what Congress (not
the COMELEC) prohibits is the sale or donation of
print space or air time for political ads. In other words,
the object of supervision or regulation is different from
the object of the prohibition. It is another fallacy for
petitioners to contend that the power to regulate does
not include the power to prohibit. This may have force
if the object of the power were the same.
10. ID.; LEGISLATIVE DEPARTMENT; SEC. 92 OF
B.P. Blg. 881 PROVIDING FREE COMELEC
AIRTIME, UPHOLDS THE PEOPLE'S RIGHT TO
INFORMATION ON MATTERS OF PUBLIC
CONCERN. To affirm the validity of 92 B.P. Blg.
881 is to hold public broadcasters to their obligation to
see to it that the variety and vigor of public debate on
issues in an election is maintained. For while
broadcast media are not mere common carriers but
entities with free speech rights, they are also public
trustees charged with the duty of ensuring that the
people have access to the diversity of views on
political issues. This right of the people is paramount
to the autonomy of broadcast media. To affirm the
validity of 92, therefore, is likewise to uphold the
people's right to information on matters of public
concern. The use of property bears a social function
and is subject to the state's duty to intervene for the
common good. Broadcast media can find their just
and highest reward in the fact that whatever altruistic
service they may render in connection with the
holding of elections is for that common good.

ROMERO, J., dissenting opinion:

1. CONSTITUTIONAL LAW; EMINENT DOMAIN;
CONSTRUED. The power of eminent domain is a
power inherent in sovereignty and requires no
constitutional provision to give it force. It is the rightful
authority which exists in every sovereignty, to control
and regulate those rights of a public nature which
pertain to its citizens in common, and to appropriate
and control individual property for the public benefit as
the public safety, necessity, convenience or welfare
demand. The right to appropriate private property to
public use, however, lies dormant in the state until
legislative action is had, pointing out the occasions,
the modes, the conditions and agencies for its
appropriation. AECacS
2.
ID.;
COMMISSION
ON
ELECTIONS;
RESOLUTION GRANTING FREE COMELEC AIR
TIME, AN EXERCISE OF EMINENT DOMAIN
WITHOUT PAYMENT OF JUST COMPENSATION.
Section 92 of BP 881, insofar as it requires radio and
television stations to provide Comelec with radio and
television time free of charge is a flagrant violation of
the constitutional mandate that private property shall
not be taken for public use without just compensation.
While it is inherent in the State, the sovereign right to
appropriate property has never been understood to
include taking property for public purposes without the
duty and responsibility of ordering compensation to
the individual whose property has been sacrificed for
the good of the community. There is, of course no
question that the taking of the property in the case at
bar is for public use, i.e., to ensure that air time is
allocated equally among the candidates, however,
there is no justification for the taking without payment
of just compensation. While Resolution No. 2983-A
has provided that just compensation shall be paid for
the 30 minutes of prime time granted by the television
stations to respondent Comelec, we note that the
resolution was passed pursuant to Section 92 of BP
881 which mandates that radio and television time be
provided to respondent Comelec free of charge. Since
the legislative intent is the controlling element in
determining the administrative powers rights,
privileges and immunities granted, respondent
Comelec may, at any time, despite the resolution
passed, compel television and radio stations to
provide it with airtime free of charge.
3. ID.; EMINENT DOMAIN; LIMITATIONS. Section
9, Article III of the 1987 Constitution which reads "No

private property shall be taken for public use without

just compensation," gives us two limitations on the
power of eminent domain: (1) the purpose of taking
must be for public use and (2) just compensation
must be given to the owner of the private property.
4. ID.; ID.; DIFFERENTIATED FROM POLICE
POWER. Police power must be distinguished from
the power of eminent domain. In the exercise of police
power, there is a restriction of property interest to
promote public welfare or interest which involves no
compensable taking. When the power of eminent
domain, however, is exercised, property interest is
appropriated and applied to some public purpose
necessitating compensation therefor. Traditional
distinctions between police power and the power of
eminent domain precluded application of both powers
at the same time on the same subject. Property
condemned under the exercise of police power, on
the other hand, is noxious or intended for noxious
purpose and, consequently, is not compensable.
Police power proceeds from the principle that every
holder of property, however absolute and unqualified
may be his title, holds it under the implied liability that
his use of it shall not be injurious to the equal
enjoyment of others having an equal right to the
enjoyment of their property, nor injurious to the rights
of the community. Rights of property, like all other
social and conventional rights, are subject to
reasonable limitations in their enjoyment as shall
prevent them from being injurious, and to such
reasonable restraints and regulations established by
law as the legislature, under the governing and
controlling power vested in them by the constitution,
may think necessary and expedient.
5. ID.; POLICE POWER; RESTRICTION OF SALE
OR DONATION OF AIRTIME DURING CAMPAIGN
PERIOD TO COMELEC, AN EXERCISE THEREOF;
EXERCISE EXCEEDS LIMITATION. The petition
before us is no different from the above-cited case.
Insofar as Sec. 92 of BP 881 read in conjunction with
Sec. 11(b) of RA 6646 restricts the sale or donation of
airtime by radio and television stations during the
campaign period to respondent Comelec, there is an
exercise of police power for the regulation of property
in accordance with the Constitution. To the extent
however that Sec. 92 of BP 881 mandates that airtime
be provided free of charge to respondent Comelec to
be allocated equally among all candidates, the
regulation exceeds the limits of police power and
should be recognized as a taking. In the case of

Pennsylvania Coal Co. v. Mahon, Justice Holmes laid

down the limits of police power in this wise, "The
general rule is that while property may be regulated to
a certain extent, if the regulation goes too far, will be
recognized as a taking."

6. ID.; EMINENT DOMAIN; ACQUISITION OF TITLE

OR
POSSESSION
OF
PROPERTY,
NOT
ESSENTIAL TO TAKING. While the power of
eminent domain often results in the appropriation of
title to or possession of property, it need not always
be the case. It is a settled rule that neither acquisition
nor total destruction of value is essential to taking and
it is equally in cases where title remains with the
private owner that inquiry should be made to
determine whether the impairment of a property is
merely regulated or amounts to a compensable
taking. A regulation which deprives any person
profitable use of his property constitutes a taking and
entitles him to compensation unless the invasion of
right is so slight as to permit the regulation to be
justified under the police power. Similarly, a police
regulation which unreasonably restricts the right to
use business property for business purposes,
amounts to taking of private property and the owner
may recover therefor. It is also settled jurisprudence
that acquisition of right of way easement falls within
the purview of eminent domain. aTcSID
7. ID.; ID.; COMPENSABLE TAKING; MANIFEST IN
LOSS OF EARNING. While there is no taking or
appropriation of title to, and possession of the
expropriated property in the case at bar, there is
compensable taking inasmuch as there is a loss of
the earnings for the airtime which the petitionerintervenors are compelled to donate. It is a loss
which, to paraphrase Philippine Press Institute v.
Comelec, could hardly be considered "de minimis" if
we are to take into account the monetary value of the
compulsory donation measured by the current
advertising rates of the radio and television stations.
8. ID.; ID.; PRINT MEDIA NOT COMPELLED TO
DONATE FREE SPACE. In the case of Philippine
Press Institute v. Comelec, we had occasion to state
that newspapers and other print media are not
compelled to donate free space to respondent
Comelec inasmuch as this would be in violation of the

constitutional provision that no private property shall

be taken for public use without just compensation.
9. ID.; ID.; ID.; RULE APPLICABLE TO RADIO AND
TV STATIONS; REASON. We find no cogent
reason why radio and television stations should be
treated any differently considering that their operating
expenses as compared to those of the newspaper
and other print media publishers involve; considerably
greater amount of financial resources. The fact that
one needs a franchise from government to establish a
radio and television station while no license is needed
to start newspaper should not be made a basis for
treating broadcast media any differently from the print
media in compelling the former to "donate" airtime to
respondent Comelec. While no franchises and rights
are granted except under the condition that it shall be
subject to amendment, alteration, or repeal by the
Congress when the common good so requires, this
provides no license for government to disregard the
cardinal rule that corporations with franchises are as
much entitled to due process and equal protection of
laws guaranteed under the Constitution. SHaATC
VITUG, J., separate opinion:
1.
CONSTITUTIONAL
LAW;
LEGISLATIVE
DEPARTMENT; Batas Pambansa Blg. 881; A
LEGITIMATE EXERCISE OF POLICE POWER. I
assent in most part to the well-considered opinion
written by Mr. Justice Vicente V. Mendoza in his
ponencia particularly, in holding that petitioner
TELEBAP lacks locus standi in filing the instant
petition and in declaring that Section 92 of Batas
Pambansa Blg. 881 is a legitimate exercise of police
power of the State.
2. ID.; STATE; POLICE POWER; STANDARDS FOR
LAWFUL EXERCISE. In this case, the assailed
law, in my view, has not failed in meeting the
standards set forth for its lawful exercise, i.e., (a) that
its utilization is demanded by the interests of the
public, and (b) that the means employed are
reasonably necessary, and not unduly oppressive, for
the accomplishment of the purpose and objectives of
the law.
3. ID.; LEGISLATIVE DEPARTMENT; FRANCHISE
TO BROADCAST MEDIA; A PRIVILEGE BURDENED
WITH RESPONSIBILITIES. The grant of franchise
to broadcast media is a privilege burdened with
responsibilities. While it is, primordially, a business

enterprise, it nevertheless, also addresses in many

ways certain imperatives of public service. In Stone
vs. Mississippi (101, U.S. 814, cited in Cruz,
Constitutional Law, 1995 ed., p. 40), a case involving
a franchise to sell lotteries which petitioner claims to
be a contract which may not be impaired, the United
States Supreme Court opined: ". . . (T)he Legislature
cannot bargain away the police power of a State.
Irrevocable grants of property and franchises may be
made if they do not impair the supreme authority to
make laws for the right government of the State; but
no Legislature can curtail the power of its successors
to make such laws as they may deem proper in
matters of police . . .
4. ID.; COMMISSION ON ELECTIONS; SECTION 2
OF RESOLUTION NO. 2983-A REQUIRING FREE
COMELEC AIR TIME, A VALID EXERCISE OF
POLICE POWER. I cannot consider COMELEC
Resolution No. 2983-A, particularly Section 2 thereof,
as being in contravention of B.P. No. 881. There is
nothing in the law that prohibits the COMELEC from
itself procuring airtime, perhaps longer than that
which can reasonably be allocated, if it believes that
in so opting, it does so for the public good. aHECST
PANGANIBAN, J., dissenting opinion:
1. POLITICAL LAW; EMINENT DOMAIN; PRINT
MEDIA CANNOT BE REQUIRED TO DONATE
ADVERTISING SPACE TO COMELEC WITHOUT
PAYMENT OF JUST COMPENSATION. In
Philippine Press Institute Inc. (PPI) vs. Commission
on Elections this Court ruled that print media
companies cannot be required to donate advertising
space, free of charge to the Comelec for equal
allocation among candidates, on the ground that such
compulsory seizure of print space is equivalent to a
proscribed taking of private property for public use
without payment of just compensation.
2.
CONSTITUTIONAL
LAW;
LEGISLATIVE
DEPARTMENT; FRANCHISE; ONCE GRANTED
BECOMES PROPERTY OF THE GRANTEE WHICH
CANNOT BE TAKEN WITHOUT PAYMENT OF JUST
COMPENSATION. In stamping unbridled
donations with its imprimatur, the majority overlooks
the twofold nature and purpose of a franchise: other
than serving the public benefit which is subject to
government regulation, it must also be to the
franchise holder's advantage. Once granted, a
franchise (not the air lanes) together with concomitant

private rights, becomes property of the grantee. It is

regarded by law precisely as other property, and, as
any other property, it is safeguarded by the
Constitution from arbitrary revocation or impairment.
The rights under a franchise can be neither taken nor
curtailed for public use or purpose, even by the
government as the grantor, without payment of just
compensation as guaranteed under our fundamental
law. The fact that the franchise relates to public use or
purpose does not entitle the state to abrogate or
impair its use without just compensation.

newspaper companies are not does not justify the

grand larceny of precious air time. This is a violation
not only of private property, but also of the
constitutional right to equal protection itself. The
proffered distinction between print and broadcast
media is too insignificant and too flimsy to be a valid
justification for the discrimination. The print and
broadcast media are equal in the sense that both
derive their revenues principally from paid ads. They
should thus be treated equally by the law in respect of
such ads. EHSAaD

regulate the operation of media of communication or

information during the period of election.

3. STATUTORY CONSTRUCTION; STATUTES;

CONSIDERED VAGUE AND INVALID IF THEY
LEAVE
LAW
ENFORCERS
UNBRIDLED
DISCRETION
IN
CARRYING
OUT
THEIR
PROVISIONS. As a rule, a statute may be said to
be vague and invalid if "it leaves law enforcers (in this
case, the Comelec) unbridled discretion in carrying
out its provisions and becomes an arbitrary flexing of
the government muscle." (People vs. Nazario, 165
SCRA 186, 195, August 31, 1988) AScHCD

DECISION

In those cases 2 in which citizens were authorized to

sue, this Court upheld their standing in view of the
"transcendental importance" of the constitutional
question raised which justified the granting of relief. In
contrast, in the case at bar, as will presently be
shown, petitioners' substantive claim is without merit.
To the extent, therefore, that a party's standing is
determined by the substantive merit of his case or a
preliminary estimate thereof, petitioner TELEBAP
must be held to be without standing. Indeed, a citizen
will be allowed to raise a constitutional question only
when he can show that he has personally suffered
some actual or threatened injury as a result of the
allegedly illegal conduct of the government; the injury
is fairly traceable to the challenged action; and the
injury is likely to be redressed by a favorable action. 3
Members of petitioner have not shown that they have
suffered harm as a result of the operation of 92 of
B.P. Blg. 881.

4.
CONSTITUTIONAL
LAW;
LEGISLATIVE
DEPARTMENT; LIMITATIONS ON LEGISLATIVE
REGULATIONS OF PUBLIC UTILITIES.
"[L]egislative regulation of public utilities must not
have the effect of depriving an owner of his property
without due process of law, nor of confiscating or
appropriating private property without due process of
law, nor of confiscating or appropriating private
property without just compensation, nor of limiting or
prescribing irrevocably vested rights or privileges
lawfully acquired under a charter or franchise." The
power to regulate is subject to these constitutional
limits. Consequently, "rights under a franchise cannot
be taken or damaged for a public use without the
making of just compensation therefor." To do so is
clearly beyond the power of the legislature to
regulate.
5. ID.; BILL OF RIGHTS; EQUAL PROTECTION OF
LAWS; VIOLATION THEREOF MANIFEST WHERE
BROADCAST STATIONS WERE COMPELLED TO
DONATE FREE TIME WHILE MAKING PAYMENT TO
PRINT MEDIA ADS. Smacking of undisguised
discrimination is the fact that in PPI vs. Comelec, this
Court has required payment of print media ads but, in
this case, compels broadcast stations to donate their
end product on a massive scale. The simplistic
distinction given that radio and TV stations are
mere grantees of government franchises while

MENDOZA, J p:
In Osmea v. COMELEC , G.R. No. 132231, decided
March 31, 1998, 1 we upheld the validity of 11(b) of
R.A. No. 6646 which prohibits the sale or donation of
print space or air time for political ads, except to the
Commission on Elections under 90, of B.P. No. 881,
the Omnibus Election Code, with respect to print
media, and 92, with respect to broadcast media. In
the present case, we consider the validity of 92 of
B.P. Blg. No. 881 against claims that the requirement
that radio and television time be given free takes
property without due process of law; that it violates
the eminent domain clause of the Constitution which
provides for the payment of just compensation; that it
denies broadcast media the equal protection of the
laws; and that, in any event, it violates the terms of
the franchise of petitioner GMA Network, Inc. dctai

Petitioner
Telecommunications
and
Broadcast
Attorneys of the Philippines, Inc. is an organization of
lawyers of radio and television broadcasting
companies. They are suing as citizens, taxpayers,
and registered voters. The other petitioner, GMA
Network, Inc., operates radio and television
broadcasting stations throughout the Philippines
under a franchise granted by Congress.
Petitioners challenge the validity of 92 on the ground
(1) that it takes property without due process of law
and without just compensation; (2) that it denies radio
and television broadcast companies the equal
protection of the laws; and (3) that it is in excess of
the power given to the COMELEC to supervise or

The Question of Standing

At the threshold of this suit is the question of standing
of petitioner Telecommunications and Broadcast
Attorneys of the Philippines, Inc. (TELEBAP). As
already noted, its members assert an interest as
lawyers of radio and television broadcasting
companies and as citizens, taxpayers, and registered
voters.

Nor do members of petitioner TELEBAP have an

interest as registered voters since this case does not
concern their right of suffrage. Their interest in 92 of
B.P. Blg. 881 should be precisely in upholding its
validity.
Much less do they have an interest as taxpayers
since this case does not involve the exercise by
Congress of its taxing or spending power. 4 A party
suing as a taxpayer must specifically show that he
has a sufficient interest in preventing the illegal
expenditure of money raised by taxation and that he
will sustain a direct injury as a result of the
enforcement of the questioned statute.
Nor indeed as a corporate entity does TELEBAP have
standing to assert the rights of radio and television
broadcasting companies. Standing jus tertii will be
recognized only if it can be shown that the party suing
has some substantial relation to the third party, or that

the third party cannot assert his constitutional right, or

that the right of the third party will be diluted unless
the party in court is allowed to espouse the third
party's constitutional claim. None of these
circumstances is here present. The mere fact that
TELEBAP is composed of lawyers in the broadcast
industry does not entitle them to bring this suit in their
name as representatives of the affected companies.

charge print space or air time for campaign or other

political purposes except to the Commission as
provided under Section 90 and 92 of Batas
Pambansa Blg. 881. Any mass media columnist,
commentator, announcer or personality who is a
candidate for any elective public office shall take a
leave of absence from his work as such during the
campaign period.

Nevertheless, we have decided to take this case

since the other petitioner, GMA Network, Inc., appears
to have the requisite standing to bring this
constitutional challenge. Petitioner operates radio and
television broadcast stations in the Philippines
affected by the enforcement of 92 of B.P. Blg. 881
requiring radio and television broadcast companies to
provide free air time to the COMELEC for the use of
candidates for campaign and other political purposes.

B.P. Blg. 881 (Omnibus Election Code)

temporary limitation or restraint upon the use of

private property." According to petitioners, in 1992, the
GMA Network, Inc. lost P22,498,560.00 in providing
free air time of one (1) hour every morning from
Mondays to Fridays and one (1) hour on Tuesdays
and Thursdays from 7:00 to 8:00 p.m. (prime time)
and, in this year's elections, it stands to lose
P58,980,850.00 in view of COMELEC's requirement
that radio and television stations provide at least 30
minutes of prime time daily for the COMELEC Time. 8

SEC. 90. Comelec space. The Commission shall

procure space in at least one newspaper of general
circulation in every province or city: Provided,
however, That in the absence of said newspaper,
publication shall be done in any other magazine or
periodical in said province or city, which shall be
known as "Comelec Space" wherein candidates can
announce their candidacy. Said space shall be
allocated, free of charge, equally and impartially by
the Commission among all candidates within the area
in which the newspaper is circulated. (Sec. 45. 1978
EC).

Petitioners' argument is without merit. All

broadcasting, whether by radio or by television
stations, is licensed by the government. Airwave
frequencies have to be allocated as there are more
individuals who want to broadcast than there are
frequencies to assign. 9 A franchise is thus a privilege
subject, among other things, to amendment by
Congress in accordance with the constitutional
provision that "any such franchise or right granted . . .
shall be subject to amendment, alteration or repeal by
the Congress when the common good so requires."
10

SEC. 92. Comelec time. The Commission shall

procure radio and television time to be known as
"Comelec Time" which shall be allocated equally and
impartially among the candidates within the area of
coverage of all radio and television stations. For this
purpose, the franchise of all radio broadcasting and
television stations are hereby amended so as to
provide radio or television time, free of charge, during
the period of the campaign. (Sec. 46, 1978 EC)

The idea that broadcast stations may be required to

provide COMELEC Time free of charge is not new. It
goes back to the Election Code of 1971 (R.A. No.
6388), which provided:

Petitioner claims that it suffered losses running to

several million pesos in providing COMELEC Time in
connection with the 1992 presidential election and the
1995 senatorial election and that it stands to suffer
even more should it be required to do so again this
year. Petitioner's allegation that it will suffer losses
again because it is required to provide free air time is
sufficient to give it standing to question the validity of
92. 5
Airing of COMELEC Time, a Reasonable Condition
for Grant of Petitioner's Franchise
As pointed out in our decision in Osmea v.
COMELEC , 11(b) of R.A. No. 6646 and 90 and
92 of B.P. Blg. 881 are part and parcel of a
regulatory scheme designed to equalize the
opportunity of candidates in an election in regard to
the use of mass media for political campaigns. These
statutory provisions state in relevant parts:
R.A. No. 6646
SEC. 11. Prohibited Forms of Election Propaganda.
In addition to the forms of election propaganda
prohibited under Section 85 of Batas Pambansa Blg.
881, it shall be unlawful:
xxx xxx xxx
(b) for any newspapers, radio broadcasting or
television station, or other mass media, or any person
making use of the mass media to sell or to give free of

Thus, the law prohibits mass media from selling or

donating print space and air time to the candidates
and requires the COMELEC instead to procure print
space and air time for allocation to the candidates. It
will be noted that while 90 of B.P. Blg. 881 requires
the COMELEC to procure print space which, as we
have held, should be paid for, 92 states that air time
shall be procured by the COMELEC free of charge.
Petitioners contend that 92 of BP Blg. 881 violates
the due process clause 6 and the eminent domain
provision 7 of the Constitution by taking air time from
radio and television broadcasting stations without
payment of just compensation. Petitioners claim that
the primary source of revenue of the radio and
television stations is the sale of air time to advertisers
and that to require these stations to provide free air
time is to authorize a taking which is not "a de minimis

SEC. 49. Regulation of election propaganda through

mass media. (a) The franchises of all radio
broadcasting and television stations are hereby
amended so as to require each such station to furnish
free of charge, upon request of the Commission [on
Elections], during the period of sixty days before the
election not more than fifteen minutes of prime time
once a week which shall be known as "Comelec
Time" and which shall be used exclusively by the
Commission to disseminate vital election information.
Said "Comelec Time" shall be considered as part of
the public service time said stations are required to
furnish the Government for the dissemination of public
information and education under their respective
franchises or permits.
This provision was carried over with slight
modification by the 1978 Election Code (P.D. No.
1296), which provided:
SEC. 46. COMELEC Time. The Commission [on
Elections] shall procure radio and television time to be
known as "COMELEC Time" which shall be allocated

equally and impartially among the candidates within

the area of coverage of said radio and television
stations. For this purpose, the franchises of all radio
broadcasting and television stations are hereby
amended so as to require such stations to furnish the
Commission radio or television time, free of charge,
during the period of the campaign, at least once but
not oftener than every other day.

Substantially the same provision is now embodied in

92 of B.P. Blg. 881.
Indeed, provisions for COMELEC Time have been
made by amendment of the franchises of radio and
television broadcast stations and, until the present
case was brought, such provisions had not been
thought of as taking property without just
compensation. Art. XII, 11 of the Constitution
authorizes the amendment of franchises for "the
common good." What better measure can be
conceived for the common good than one for free air
time for the benefit not only of candidates but even
more of the public, particularly the voters, so that they
will be fully informed of the issues in an election? "[I]t
is the right of the viewers and listeners, not the right of
the broadcasters, which is paramount." 11
Nor indeed can there be any constitutional objection
to the requirement that broadcast stations give free air
time. Even in the United States, there are responsible
scholars who believe that government controls on
broadcast media can constitutionally be instituted to
ensure diversity of views and attention to public affairs
to further the system of free expression. For this
purpose, broadcast stations may be required to give
free air time to candidates in an election. 12 Thus,
Professor Cass R. Sunstein of the University of
Chicago Law School, in urging reforms in regulations
affecting the broadcast industry, writes:
Elections. We could do a lot to improve coverage of
electoral campaigns. Most important, government
should ensure free media time for candidates. Almost
all European nations make such provision; the United
States does not. Perhaps government should pay for
such time on its own. Perhaps broadcasters should
have to offer it as a condition for receiving a license.
Perhaps a commitment to provide free time would
count in favor of the grant of a license in the first
instance. Steps of this sort would simultaneously

promote attention to public affairs and greater

diversity of view. They would also help overcome the
distorting effects of "soundbites" and the corrosive
financial pressures faced by candidates in seeking
time on the media. 13
In truth, radio and television broadcasting companies,
which are given franchises, do not own the airwaves
and frequencies through which they transmit
broadcast signals and images. They are merely given
the temporary privilege of using them. Since a
franchise is a mere privilege, the exercise of the
privilege may reasonably be burdened with the
performance by the grantee of some form of public
service. Thus, in De Villata v. Stanley, 14 a regulation
requiring interisland vessels licensed to engage in the
interisland trade to carry mail and, for this purpose, to
give advance notice to postal authorities of date and
hour of sailings of vessels and of changes of sailing
hours to enable them to tender mail for transportation
at the last practicable hour prior to the vessel's
departure, was held to be a reasonable condition for
the state grant of license. Although the question of
compensation for the carriage of mail was not in
issue, the Court strongly implied that such service
could be without compensation, as in fact under
Spanish sovereignty the mail was carried free. 15
In Philippine Long Distance Telephone Company v.
NTC , 16 the Court ordered the PLDT to allow the
interconnection of its domestic telephone system with
the international gateway facility of Eastern Telecom.
The Court cited (1) the provisions of the legislative
franchise allowing such interconnection; (2) the
absence of any physical, technical, or economic basis
for restricting the linking up of two separate telephone
systems; and (3) the possibility of increase in the
volume of international traffic and more efficient
service, at more moderate cost, as a result of
interconnection.
Similarly, in the earlier case of PLDT v. NTC , 17 it
was held:
Such regulation of the use and ownership of
telecommunications systems is in the exercise of the
plenary police power of the State for the promotion of
the general welfare. The 1987 Constitution recognizes
the existence of that power when it provides:
"Sec. 6. The use of property bears a social function,
and all economic agents shall contribute to the

common good. Individuals and private groups,

including corporations, cooperatives, and similar
collective organizations, shall have the right to own,
establish, and operate economic enterprises, subject
to the duty of the State to promote distributive justice
and to intervene when the common good so
demands" (Article XII).
The interconnection which has been required of PLDT
is a form of "intervention" with property rights dictated
by "the objective of government to promote the rapid
expansion of telecommunications services in all areas
of the Philippines, . . . to maximize the use of
telecommunications facilities available, . . . in
recognition of the vital role of communications in
nation building . . . and to ensure that all users of the
public telecommunications service have access to all
other users of the service wherever they may be
within the Philippines at an acceptable standard of
service and at reasonable cost" (DOTC Circular No.
90-248). Undoubtedly, the encompassing objective is
the common good. The NTC, as the regulatory
agency of the State, merely exercised its delegated
authority to regulate the use of telecommunications
networks when it decreed interconnection.
In the granting of the privilege to operate broadcast
stations and thereafter supervising radio and
television stations, the state spends considerable
public funds in licensing and supervising such
stations. 18 It would be strange if it cannot even
require the licensees to render public service by
giving free air time.
Considerable effort is made in the dissent of Mr.
Justice Panganiban to show that the production of
television programs involves large expenditure and
requires the use of equipment for which huge
investments have to be made. The dissent cites the
claim of GMA Network that the grant of free air time to
the COMELEC for the duration of the 1998 campaign
period would cost the company P52,380,000,
representing revenue it would otherwise earn if the air
time were sold to advertisers, and the amount of
P6,600,850, representing the cost of producing a
program for the COMELEC Time, or the total amount
of P58,980,850.
The claim that petitioner would be losing P52,380,000
in unrealized revenue from advertising is based on
the assumption that air time is "finished product"
which, it is said, become the property of the company,

like oil produced from refining or similar natural

resources after undergoing a process for their
production. But air time is not owned by broadcast
companies. As held in Red Lion Broadcasting Co. v. F
.C .C ., 19 which upheld the right of a party personally
attacked to reply, "licenses to broadcast do not confer
ownership of designated frequencies, but only the
temporary privilege of using them." Consequently, "a
license permits broadcasting, but the licensee has no
constitutional right to be the one who holds the
license or to monopolize a radio frequency to the
exclusion of his fellow citizens. There is nothing in the
First Amendment which prevents the Government
from requiring a licensee to share his frequency with
others and to conduct himself as a proxy or fiduciary
with obligations to present those views and voices
which are representative of his community and which
would otherwise, by necessity, be barred from the
airwaves." 20 As radio and television broadcast
stations do not own the airwaves, no private property
is taken by the requirement that they provide air time
to the COMELEC.
Justice Panganiban's dissent quotes from Tolentino
on the Civil Code which says that "the air lanes
themselves 'are not property because they cannot be
appropriated for the benefit of any individual.'" (p. 5)
That means neither the State nor the stations own the
air lanes. Yet the dissent also says that "The franchise
holders can recover their huge investments only by
selling air time to advertisers." (p. 13) If air lanes
cannot be appropriated, how can they be used to
produce air time which the franchise holders can sell
to recover their investment? There is a contradiction
here.
As to the additional amount of P6,600,850, it is
claimed that this is the cost of producing a program
and it is for such items as "sets and props," "video
tapes," "miscellaneous (other rental, supplies,
transportation, etc.)," and "technical facilities
(technical crew such as director and cameraman as
well as 'on air plugs')." There is no basis for this claim.
Expenses for these items will be for the account of the
candidates. COMELEC Resolution No. 2983, 6(d)
specifically provides in this connection:
(d) Additional services such as tape-recording or
video-taping of programs, the preparation of visual
aids, terms and condition thereof, and the
consideration to be paid therefor may be arranged by
the candidates with the radio/television station

concerned. However, no radio/television station shall

make any discrimination among candidates relative to
charges, terms, practices or facilities for in connection
with the services rendered.
It is unfortunate that in the effort to show that there is
taking of private property worth millions of pesos, the
unsubstantiated charge is made that by its decision
the Court permits the "grand larceny of precious
time," and allows itself to become "the people's
unwitting oppressor." The charge is really unfortunate.
In Jackman v. Rosenbaum Co., 21 Justice Holmes
was so incensed by the resistance of property owners
to the erection of party walls that he was led to say in
his original draft, "a statute, which embodies the
community's understanding of the reciprocal rights
and duties of neighboring landowners, does not need
to invoke the petty larceny of the police power in its
justification." Holmes's brethren corrected his taste,
and Holmes had to amend the passage so that in the
end it spoke only of invoking "the police power." 22
Justice Holmes spoke of the "petty larceny" of the
police power. Now we are being told of the "grand
larceny [by means of the police power] of precious air
time."

Giving Free Air Time a Duty Assumed by Petitioner

Petitioners claim that 92 is an invalid amendment of
R.A. No. 7252 which granted GMA Network, Inc. a
franchise for the operation of radio and television
broadcasting stations. They argue that although 5 of
R.A. No. 7252 gives the government the power to
temporarily use and operate the stations of petitioner
GMA Network or to authorize such use and operation,
the exercise of this right must be compensated.
The cited provision of R.A. No. 7252 states:
SEC. 5. Right of Government. A special right is
hereby reserved to the President of the Philippines, in
times of rebellion, public peril, calamity, emergency,
disaster or disturbance of peace and order, to
temporarily take over and operate the stations of the
grantee, to temporarily suspend the operation of any
station in the interest of public safety, security and
public welfare, or to authorize the temporary use and
operation thereof by any agency of the Government,
upon due compensation to the grantee, for the use of

said stations during the period when they shall be so

operated.
The basic flaw in petitioner's argument is that it
assumes that the provision for COMELEC Time
constitutes the use and operation of the stations of
the GMA Network, Inc. This is not so. Under 92 of
B.P. Blg. 881, the COMELEC does not take over the
operation of radio and television stations but only the
allocation of air time to the candidates for the purpose
of ensuring, among other things, equal opportunity,
time, and the right to reply as mandated by the
Constitution. 23
Indeed, it is wrong to claim an amendment of
petitioner's franchise for the reason that B.P. Blg. 881,
which is said to have amended R.A. No. 7252,
actually antedated it. 24 The provision of 92 of B.P.
Blg. 881 must be deemed instead to be incorporated
in R.A. No. 7252. And, indeed, 4 of the latter statute
does.
For the fact is that the duty imposed on the GMA
Network, Inc. by its franchise to render "adequate
public service time" implements 92 of B.P. Blg. 881.
Undoubtedly, its purpose is to enable the government
to communicate with the people on matters of public
interest. Thus, R.A. No. 7252 provides:
SEC. 4. Responsibility to the Public. The grantee
shall provide adequate public service time to enable
the Government, through the said broadcasting
stations, to reach the population on important public
issues; provide at all times sound and balanced
programming; promote public participation such as in
community programming; assist in the functions of
public information and education; conform to the
ethics of honest enterprise; and not use its station for
the broadcasting of obscene and indecent language,
speech, act or scene, or for the dissemination of
deliberately
false
information
or
willful
misrepresentation, or to the detriment of the public
interest, or to incite, encourage, or assist in
subversive or treasonable acts. (Emphasis added)
It is noteworthy that 49 of R.A. No. 6388, from which
92 of B.P. Blg. 881 was taken, expressly provided
that the COMELEC Time should "be considered as
part of the public service time said stations are
required to furnish the Government for the
dissemination of public information and education
under their respective franchises or permits." There is

no reason to suppose that 92 of B.P. Blg. 881

considers the COMELEC Time therein provided to be
otherwise than as a public service which petitioner is
required to render under 4 of its charter (R.A. No.
7252). In sum, B.P. Blg. 881, 92 is not an invalid
amendment of petitioner's franchise but the
enforcement of a duty voluntarily assumed by
petitioner in accepting a public grant of privilege.
Thus far, we have confined the discussion to the
provision of 92 of B.P. Blg. 881 for free air time
without taking into account COMELEC Resolution No.
2983-A, 2 of which states:
SEC. 2. Grant of "Comelec Time". Every radio
broadcasting and television station operating under
franchise shall grant the Commission, upon payment
of just compensation, at least thirty (30) minutes of
prime time daily, to be known as "Comelec Time",
effective February 10, 1998 for candidates for
President, Vice-President and Senators, and effective
March 27, 1998, for candidates for local elective
offices, until May 9, 1998. (Emphasis added)
This is because the amendment providing for the
payment of "just compensation" is invalid, being in
contravention of 92 of B.P. Blg. 881 that radio and
television time given during the period of the
campaign shall be "free of charge." Indeed,
Resolution No. 2983 originally provided that the time
allocation shall be "free of charge," just as 92
requires such time to be given "free of charge." The
amendment appears to be a reaction to petitioners'
claim in this case that the original provision was
unconstitutional because it allegedly authorized the
taking of property without just compensation.
The Solicitor General, relying on the amendment,
claims that there should be no more dispute because
the payment of compensation is now provided for. It is
basic, however, that an administrative agency cannot,
in the exercise of lawmaking, amend a statute of
Congress. Since 2 of Resolution No. 2983-A is
invalid, it cannot be invoked by the parties.
Law Allows Flextime for Programming by Stations,
Not Confiscation of Air Time by COMELEC
It is claimed that there is no standard in the law to
guide the COMELEC in procuring free air time and
that "theoretically the COMELEC can demand all of
the air time of such stations." 25 Petitioners do not
claim that COMELEC Resolution No. 2983-A
arbitrarily sequesters radio and television time. What

they claim is that because of the breadth of the

statutory language, the provision in question is
susceptible of "unbridled, arbitrary and oppressive
exercise." 26
The contention has no basis. For one, the COMELEC
is required to procure free air time for candidates
"within the area of coverage" of a particular radio or
television broadcaster so that it cannot, for example,
procure such time for candidates outside that area. At
what time of the day and how much time the
COMELEC may procure will have to be determined
by it in relation to the overall objective of informing the
public about the candidates, their qualifications and
their programs of government. As stated in Osmea v.
COMELEC , the COMELEC Time provided for in 92,
as well as the COMELEC Space provided for in 90,
is in lieu of paid ads which candidates are prohibited
to have under 11(b) of R.A. No. 6646. Accordingly,
this objective must be kept in mind in determining the
details of the COMELEC Time as well as those of the
COMELEC Space.
There would indeed be objection to the grant of power
to the COMELEC if 92 were so detailed as to leave
no room for accommodation of the demands of radio
and television programming. For were that the case,
there could be an intrusion into the editorial
prerogatives of radio and television stations.
Differential Treatment of Broadcast Media Justified
Petitioners complain that B.P. Blg. 881, 92 singles
out radio and television stations to provide free air
time. They contend that newspapers and magazines
are not similarly required as, in fact, in Philippine
Press Institute v. COMELEC 27 we upheld their right
to the payment of just compensation for the print
space they may provide under 90.
The argument will not bear analysis. It rests on the
fallacy that broadcast media are entitled to the same
treatment under the free speech guarantee of the
Constitution as the print media. There are important
differences in the characteristics of the two media,
however, which justify their differential treatment for
free speech purposes. Because of the physical
limitations of the broadcast spectrum, the government
must, of necessity, allocate broadcast frequencies to
those wishing to use them. There is no similar
justification for government allocation and regulation
of the print media. 28

In the allocation of limited resources, relevant

conditions may validly be imposed on the grantees or
licensees. The reason for this is that, as already
noted, the government spends public funds for the
allocation and regulation of the broadcast industry,
which it does not do in the case of the print media. To
require the radio and television broadcast industry to
provide free air time for the COMELEC Time is a fair
exchange for what the industry gets.
From another point of view, this Court has also held
that because of the unique and pervasive influence of
the broadcast media, "[n]ecessarily . . . the freedom of
television and radio broadcasting is somewhat lesser
in scope than the freedom accorded to newspaper
and print media." 29
The broadcast media have also established a
uniquely pervasive presence in the lives of all
Filipinos. Newspapers and current books are found
only in metropolitan areas and in the poblaciones of
municipalities accessible to fast and regular
transportation. Even here, there are low income
masses who find the cost of books, newspapers, and
magazines beyond their humble means. Basic needs
like food and shelter perforce enjoy high priorities.
On the other hand, the transistor radio is found
everywhere. The television set is also becoming
universal. Their message may be simultaneously
received by a national or regional audience of
listeners including the indifferent or unwilling who
happen to be within reach of a blaring radio or
television set. The materials broadcast over the
airwaves reach every person of every age, persons of
varying susceptibilities to persuasion, persons of
different I.Q.s and mental capabilities, persons whose
reactions to inflammatory or offensive speech would
be difficult to monitor or predict. The impact of the
vibrant speech is forceful and immediate. Unlike
readers of the printed work, the radio audience has
lesser opportunity to cogitate, analyze, and reject the
utterance. 30

Petitioners' assertion therefore that 92 of B.P. Blg.

881 denies them the equal protection of the law has
no basis. In addition, their plea that 92 (free air time)
and 11(b) of R.A. No. 6646 (ban on paid political
ads) should be invalidated would pave the way for a

return to the old regime where moneyed candidates

could monopolize media advertising to the
disadvantage of candidates with less resources. That
is what Congress tried to reform in 1987 with the
enactment of R.A. No. 6646. We are not free to set
aside the judgment of Congress, especially in light of
the recent failure of interested parties to have the law
repealed or at least modified.
Requirement of COMELEC Time, a Reasonable
Exercise of the State's Power to Regulate Use of
Franchises
Finally, it is argued that the power to supervise or
regulate given to the COMELEC under Art. IX-C, 4 of
the Constitution does not include the power to
prohibit. In the first place, what the COMELEC is
authorized to supervise or regulate by Art. IX-C, 4 of
the Constitution, 31 among other things, is the use by
media of information of their franchises or permits,
while what Congress (not the COMELEC) prohibits is
the sale or donation of print space or air time for
political ads. In other words, the object of supervision
or regulation is different from the object of the
prohibition. It is another fallacy for petitioners to
contend that the power to regulate does not include
the power to prohibit. This may have force if the
object of the power were the same.
In the second place, the prohibition in 11(b) of R.A.
No. 6646 is only half of the regulatory provision in the
statute. The other half is the mandate to the
COMELEC to procure print space and air time for
allocation to candidates. As we said in Osmea v.
COMELEC .
The term political "ad ban," when used to describe
11(b) of R.A. No. 6646, is misleading, for even as
11(b) prohibits the sale or donation of print space
and air time to political candidates, it mandates the
COMELEC to procure and itself allocate to the
candidates space and time in the media. There is no
suppression of political ads but only a regulation of
the time and manner of advertising.
xxx xxx xxx
. . . What is involved here is simply regulation of this
nature. Instead of leaving candidates to advertise
freely in the mass media, the law provides for
allocation, by the COMELEC of print space and air
time to give all candidates equal time and space for

the purpose of ensuring "free, orderly, honest,

peaceful, and credible elections."
With the prohibition on media advertising by
candidates themselves, the COMELEC Time and
COMELEC Space are about the only means through
which candidates can advertise their qualifications
and program of government. More than merely
depriving candidates of time for their ads, the failure
of broadcast stations to provide air time unless paid
by the government would clearly deprive the people of
their right to know. Art. III, 7 of the Constitution
provides that "the right of the people to information on
matters of public concern shall be recognized," while
Art. XII, 6 states that "the use of property bears a
social function [and] the right to own, establish, and
operate economic enterprises [is] subject to the duty
of the State to promote distributive justice and to
intervene when the common good so demands."
To affirm the validity of 92 of B.P. Blg. 881 is to hold
public broadcasters to their obligation to see to it that
the variety and vigor of public debate on issues in an
election is maintained. For while broadcast media are
not mere common carriers but entities with free
speech rights, they are also public trustees charged
with the duty of ensuring that the people have access
to the diversity of views on political issues. This right
of the people is paramount to the autonomy of
broadcast media. To affirm the validity of 92,
therefore, is likewise to uphold the people's right to
information on matters of public concern. The use of
property bears a social function and is subject to the
state's duty to intervene for the common good.
Broadcast media can find their just and highest
reward in the fact that whatever altruistic service they
may render in connection with the holding of elections
is for that common good.
For the foregoing reasons, the petition is dismissed.
SO ORDERED.
||| (Telecommunications and Broadcast Attorneys of
the Philippines, Inc. v. COMELEC, G.R. No. 132922,
April 21, 1998)

Petitioner National Power Corporation (NPC) filed this

Petition for Review on Certiorari, seeking to nullify the
May 30, 2008 Decision 1 of the Court of Appeals (CA)
in CA-G.R. SP No. 02065-MIN, affirming the Order
dated November 13, 2007 issued by Hon. Amer R.
Ibrahim, which granted respondents' motion for
issuance of a writ of execution.
The antecedents.

THIRD DIVISION
[G.R. No. 183297. December 23, 2009.]
NATIONAL POWER CORPORATION, petitioner, vs.
OMAR G. MARUHOM, ELIAS G. MARUHOM,
BUCAY G. MARUHOM, MAMOD G. MARUHOM,
FAROUK G. MARUHOM, HIDJARA G. MARUHOM,
ROCANIA
G.
MARUHOM,
POTRISAM
G.
MARUHOM, LUMBA G. MARUHOM, SINAB G.
MARUHOM, ACMAD G. MARUHOM, SOLAYMAN
G.
MARUHOM,
MOHAMAD
M.
IBRAHIM,
CAIRORONESA M. IBRAHIM, and LUCMAN
IBRAHIM, represented by his heirs ADORA B.
IBRAHIM, NASSER B. IBRAHIM, JAMALODIN B.
IBRAHIM, RAJID NABBEL B. IBRAHIM, AMEER B.
IBRAHIM and SARAH AIZAH B. IBRAHIM, *
respondents.
DECISION
NACHURA, J p:

Lucman G. Ibrahim and his co-heirs Omar G.

Maruhom, Elias G. Maruhom, Bucay G. Maruhom,
Mamod G. Maruhom, Farouk G. Maruhom, Hidjara G.
Maruhom, Rocania G. Maruhom, Potrisam G.
Maruhom, Lumba G. Maruhom, Sinab G. Maruhom,
Acmad G. Maruhom, Solayman G. Maruhom,
Mohamad M. Ibrahim and Cairoronesa M. Ibrahim
(respondents) are owners of a 70,000-square meter
lot in Saduc, Marawi City. Sometime in 1978, NPC,
without respondents' knowledge and consent, took
possession of the subterranean area of the land and
constructed therein underground tunnels. The tunnels
were used by NPC in siphoning the water of Lake
Lanao and in the operation of NPC's Agus II, III, IV, V,
VI, and VII projects located in Saguiran, Lanao del
Sur; Nangca and Balo-i in Lanao del Norte; and
Ditucalan and Fuentes in Iligan City. Respondents
only discovered the existence of the tunnels
sometime in July 1992. Thus, on October 7, 1992,
respondents demanded that NPC pay damages and
vacate the subterranean portion of the land, but the
demand was not heeded.
Hence, on November 23, 1994, respondents instituted
an action for recovery of possession of land and
damages against NPC with the Regional Trial Court
(RTC) of Lanao del Sur, docketed as Civil Case No.
1298-94.
After trial, the RTC rendered a decision, 2 the decretal
portion of which reads: SEHaTC

FP (VII-5) 2278 less the area of 21,995 square meters

at P1,000.00 per square meter or a total of
P48,005,000.00 for the remaining unpaid portion of
48,005 square meters; with 6% interest per annum
from the filing of this case until paid;
3.Ordering [NPC] to pay [respondents] a reasonable
monthly rental of P0.68 per square meter of the total
area of 48,005 square meters effective from its
occupancy of the foregoing area in 1978 or a total of
P7,050,974.40.
4.Ordering [NPC] to pay [respondents] the sum of
P200,000.00 as moral damages; and
5.Ordering [NPC] to pay the further sum
P200,000.00 as attorney's fees and the costs.

of

SO ORDERED. 3
Respondents then filed an Urgent Motion for
Execution of Judgment Pending Appeal. On the other
hand, NPC filed a Notice of Appeal. Thereafter, it filed
a vigorous opposition to the motion for execution of
judgment pending appeal with a motion for
reconsideration of the RTC decision.
On August 26, 1996, NPC withdrew its Notice of
Appeal to give way to the hearing of its motion for
reconsideration. On August 28, 1996, the RTC issued
an Order granting execution pending appeal and
denying NPC's motion for reconsideration. The
Decision of the RTC was executed pending appeal
and the funds of NPC were garnished by
respondents.
On October 4, 1996, Lucman Ibrahim and
respondents Omar G. Maruhom, Elias G. Maruhom,
Bucay G. Maruhom, Mamod G. Maruhom, Farouk G.
Maruhom, Hidjara G. Maruhom, Potrisam G.
Maruhom and Lumba G. Maruhom filed a Petition for
Relief from Judgment, 4 asserting as follows:

WHEREFORE, judgment is hereby rendered:

1.Denying [respondents'] prayer for [NPC] to
dismantle the underground tunnels constructed
beneath the lands of [respondents] in Lots 1, 2, and 3
of Survey Plan FP (VII-5) 2278;
2.Ordering [NPC] to pay to [respondents] the fair
market value of said 70,000 square meters of land
covering Lots 1, 2, and 3 as described in Survey Plan

1.They did not file a motion to reconsider or appeal

the decision within the reglementary period of fifteen
(15) days from receipt of judgment because they
believed in good faith that the decision was for
damages and rentals and attorney's fees only as
prayed for in the complaint;
2.It was only on August 26, 1996 that they learned
that the amounts awarded to the respondents

represented not only rentals, damages and attorney's

fees but the greatest portion of which was payment of
just compensation which, in effect, would make the
petitioner NPC the owner of the parcels of land
involved in the case; CDScaT
3.When they learned of the nature of the judgment,
the period of appeal had already expired;
4.They were prevented by fraud, mistake, accident, or
excusable negligence from taking legal steps to
protect and preserve their rights over their parcels of
land insofar as the part of the decision decreeing just
compensation for respondents' properties;
5.They would never have agreed to the alienation of
their property in favor of anybody, considering the fact
that the parcels of land involved in this case were
among the valuable properties they inherited from
their dear father and they would rather see their land
crumble to dust than sell it to anybody. 5
After due proceedings, the RTC granted the petition
and rendered a modified judgment dated September
8, 1997, thus:
WHEREFORE, a modified judgment is hereby
rendered:

SO ORDERED. 6
Lucman Ibrahim and NPC then filed their separate
appeals with the CA, docketed as CA-G.R. CV No.
57792. On June 8, 2005, the CA rendered a Decision,
7 setting aside the modified judgment and reinstating
the original Decision, amending it further by deleting
the award of moral damages and reducing the
amount of rentals and attorney's fees, thus:
WHEREFORE, premises considered, herein Appeals
are hereby partially GRANTED, the Modified
Judgment is ordered SET ASIDE and rendered of no
force and effect and the original Decision of the court
a quo dated 7 August 1996 is hereby RESTORED
with the MODIFICATION that the award of moral
damages is DELETED and the amounts of rentals
and attorney's fees are REDUCED to P6,887,757.40
and P50,000.00, respectively. CETDHA
In this connection, the Clerk of Court of RTC Lanao
del Sur is hereby directed to reassess and determine
the additional filing fee that should be paid by PlaintiffAppellant IBRAHIM taking into consideration the total
amount of damages sought in the complaint vis- -vis
the actual amount of damages awarded by this Court.
Such additional filing fee shall constitute as a lien on
the judgment.

1.Reducing the judgment award of [respondents] for

the fair market value of P48,005,000.00 by
[P]9,526,000.00
or
for
a
difference
[of]
P38,479,000.00 and by the further sum of
P33,603,500.00 subject of the execution pending
appeal leaving a difference of [P]4,878,500.00 which
may be the subject of execution upon the finality of
this modified judgment with 6% interest per annum
from the filing of the case until paid.

SO ORDERED 8

2.Awarding the sum of P1,476,911.00 to herein

[respondents] Omar G. Maruhom, Elias G. Maruhom,
Bucay G. Maruhom, Mahmod G. Maruhom, Farouk G.
Maruhom, Hidjara G. Maruhom, Portrisam G.
Maruhom and Lumba G. Maruhom as reasonable
rental deductible from the awarded sum of
P7,050,974.40 pertaining to [respondents].

SO ORDERED. 9

3.Ordering [NPC] embodied in the August 7, 1996

decision to pay [respondents] the sum of P200,000.00
as moral damages; and further sum of P200,000.00
as attorney's fees and costs.

The above decision was affirmed by this Court on

June 29, 2007 in G.R. No. 168732, viz.:
WHEREFORE, the petition is DENIED and the
Decision of the Court of Appeals in C.A.-G.R. CV No.
57792 dated June 8, 2005 is AFFIRMED.
No costs.

NPC moved for reconsideration of the Decision, but

this Court denied it on August 29, 2007.
To satisfy the judgment, respondents filed with the
RTC a motion for execution of its August 7, 1996
decision, as modified by the CA. On November 13,
2007, the RTC granted the motion, and issued the
corresponding writ of execution. Subsequently, a
notice of garnishment was issued upon NPC's
depositary bank.

NPC then filed a Petition for Certiorari (with Urgent

Prayer for the Immediate Issuance of a Temporary
Restraining Order and/or Writ of Preliminary
Injunction) with the CA, docketed as CA-G.R. SP No.
02065-MIN. It argued that the RTC gravely abused its
discretion when it granted the motion for execution
without ordering respondents to transfer their title in
favor of NPC. By allowing the payment of just
compensation for a parcel of land without the
concomitant right of NPC to get title thereto, the RTC
clearly varied the terms of the judgment in G.R. No.
168732, justifying the issuance of a writ of certiorari.
NPC also prayed for the issuance of a temporary
restraining order (TRO) to enjoin the implementation
of the writ of execution and notice of garnishment. On
November 29, 2007, the CA granted NPC's prayer
and issued a TRO, enjoining the implementation of
the writ of execution and the notice of garnishment.
On May 30, 2008, the CA rendered the now assailed
Decision, 10 dismissing NPC's petition for certiorari.
Rejecting NPC's argument, the CA declared that this
Court's Decision in G.R. No. 168732 intended NPC to
pay the full value of the property as compensation
without ordering the transfer of respondents' title to
the land. According to the CA, in a plethora of cases
involving lands traversed by NPC's transmission lines,
it had been consistently ruled that an easement is
compensable by the full value of the property despite
the fact that NPC was only after a right-of-way
easement, if by such easement it perpetually or
indefinitely deprives the land owner of his proprietary
rights by imposing restrictions on the use of the
property. The CA, therefore, ordered NPC to pay its
admitted obligation to respondents amounting to
P36,219,887.20. 11 TEAICc
NPC is now before us faulting the CA for dismissing
the former's petition for certiorari. It also prayed for a
TRO to enjoin respondents and all persons acting
under their authority from implementing the May 30,
2008 Decision of the CA. In its July 9, 2008
Resolution, 12 this Court granted NPC's prayer, and
issued a TRO enjoining the execution of the assailed
CA Decision.
In the main, NPC insists that the payment of just
compensation for the land carries with it the
correlative right to obtain title or ownership of the land
taken. It stresses that this Court's Decision in G.R.
No. 168732 is replete with pronouncements that the
just
compensation
awarded
to
respondents

corresponds to compensation for the entire land and

not just for an easement or a burden on the property,
thereby necessitating a transfer of title and ownership
to NPC upon satisfaction of judgment. NPC added
that by granting respondents' motion for execution,
and consequently issuing the writ of execution and
notice of garnishment, the RTC and the CA allowed
respondents to retain title to the property even after
the payment of full compensation. This, according to
NPC, was a clear case of unjust enrichment.
The petition lacks merit.
It is a fundamental legal axiom that a writ of execution
must conform strictly to the dispositive portion of the
decision sought to be executed. A writ of execution
may not vary from, or go beyond, the terms of the
judgment it seeks to enforce. When a writ of
execution does not conform strictly to a decision's
dispositive portion, it is null and void. 13

emphasized that the acquisition of the easement is

not without expense. The underground tunnels
impose limitations on respondents' use of the property
for an indefinite period and deprive them of its
ordinary use. Based upon the foregoing, respondents
are clearly entitled to the payment of just
compensation. Notwithstanding the fact that [NPC]
only occupies the sub-terrain portion, it is liable to pay
not merely an easement but rather the full
compensation for land. This is so because in this
case, the nature of the easement practically deprives
the owners of its normal beneficial use. Respondents,
as the owners of the property thus expropriated, are
entitled to a just compensation which should be
neither more nor less, whenever it is possible to make
the assessment, than the money equivalent of said
property. 14 DcCHTa

Admittedly, the tenor of the dispositive portion of the

August 7, 1996 RTC decision, as modified by the CA
and affirmed by this Court, did not order the transfer
of ownership upon payment of the adjudged
compensation. Neither did such condition appear in
the text of the RTC decision, and of this Court's
Decision in G.R. No. 168732.

Clearly, the writ of execution issued by the RTC and

affirmed by the CA does not vary, but is, in fact,
consistent with the final decision in this case. The
assailed writ is, therefore, valid.
Indeed, expropriation is not limited to the acquisition
of real property with a corresponding transfer of title
or possession. The right-of-way easement resulting in
a restriction or limitation on property rights over the
land traversed by transmission lines also falls within
the ambit of the term expropriation. 15

As aptly pointed out by the CA in its assailed

Decision:

As we explained in Camarines Norte Electric

Cooperative, Inc. v. Court of Appeals: 16

[NPC], by its selective quotations from the Decision in

G.R. No. 168732, would have Us suppose that the
High Court, in decreeing that [NPC] pay the full value
of the property as just compensation, implied that
[NPC] was entitled to the entire land, including the
surface area and not just the subterranean portion.
No such inference can be drawn from [the] reading of
the entirety of the High Court's Decision. On the
contrary, a perusal of the subject Decision yields to
this Court the unmistakable sense that the High Court
intended [NPC] to pay the full value of the subject
property as just compensation without ordering the
transfer o[f] respondents' title to the land. This is
patent from the following language of the High Court
as quoted by [NPC] itself:

The acquisition of an easement of a right-of-way falls

within the purview of the power of eminent domain.
Such conclusion finds support in easements of rightof-way where the Supreme Court sustained the award
of just compensation for private property condemned
for public use. The Supreme Court, in Republic v.
PLDT thus held that:

In disregarding this procedure and failing to recognize

respondents' ownership of the sub-terrain portion,
petitioner took a risk and exposed itself to greater
liability with the passage of time. It must be

"Normally, of course, the power of eminent domain

results in the taking or appropriation of title to, and
possession of, the expropriated property; but no
cogent reason appears why said power may not be
availed of to impose only a burden upon the owner of
condemned property, without loss of title and
possession. It is unquestionable that real property
may, through expropriation, be subjected to an
easement of right-of-way."
However, a simple right-of-way easement transmits
no rights, except the easement. Vines Realty retains

full ownership and it is not totally deprived of the use

of the land. It can continue doing what it wants to do
with the land, except those that would result in contact
with the wires.
The acquisition of this easement, nevertheless, is not
gratis. Considering the nature and effect of the
installation power lines, the limitations on the use of
the land for an indefinite period deprives private
respondents of its ordinary use. For these reasons,
Vines Realty is entitled to payment of just
compensation, which must be neither more nor less
than the money equivalent of the property. 17
It is, therefore, clear that NPC's acquisition of an
easement of right-of-way on the lands of respondents
amounted to expropriation of the portions of the
latter's property for which they are entitled to a
reasonable and just compensation.
The term just compensation had been defined as the
full and fair equivalent of the property taken from its
owner by the expropriator. The measure is not the
taker's gain, but the owner's loss. The word just is
used to intensify the meaning of the word
compensation and to convey thereby the idea that the
equivalent to be rendered for the property to be taken
shall be real, substantial, full, and ample. 18 DTAIaH
In Camarines Norte Electric Cooperative, Inc. v. Court
of Appeals 19 and National Power Corporation v.
Manubay Agro-Industrial Development Corporation,
20 this Court sustained the award of just
compensation equivalent to the fair and full value of
the property even if petitioners only sought the
continuation of the exercise of their right-of-way
easement and not the ownership over the land. There
is simply no basis for NPC to claim that the payment
of fair market value without the concomitant transfer
of title constitutes an unjust enrichment.
In fine, the issuance by the RTC of a writ of execution
and the notice of garnishment to satisfy the judgment
in favor of respondents could not be considered grave
abuse of discretion. The term grave abuse of
discretion, in its juridical sense, connotes capricious,
despotic, oppressive, or whimsical exercise of
judgment as is equivalent to lack of jurisdiction. The
abuse must be of such degree as to amount to an
evasion of positive duty or a virtual refusal to perform
a duty enjoined by law, as where the power is
exercised in an arbitrary and capricious manner by
reason of passion and hostility. The word capricious,

usually used in tandem with the term arbitrary,

conveys the notion of willful and unreasoning action.
Thus, when seeking the corrective hand of certiorari,
a clear showing of caprice and arbitrariness in the
exercise of discretion is imperative. 21 In this case,
NPC utterly failed to demonstrate caprice or
arbitrariness on the part of the RTC in granting
respondents' motion for execution. Accordingly, the
CA committed no reversible error in dismissing NPC's
petition for certiorari.
It is almost trite to say that execution is the fruit and
the end of the suit and is the life of the law. A

judgment, if left unexecuted, would be nothing but an

empty victory for the prevailing party. Litigation must
end sometime and somewhere. An effective and
efficient administration of justice requires that once a
judgment has become final, the winning party be not
deprived of the fruits of the verdict. Courts must,
therefore, guard against any scheme calculated to
bring about that result. Constituted as they are to put
an end to controversies, courts should frown upon
any attempt to prolong them. 22 We, therefore, write
finis to this litigation.

WHEREFORE, the petition is DENIED. The assailed

Decision of the Court of Appeals in CA-G.R. SP No.
02065-MIN is AFFIRMED. The temporary restraining
order issued by this Court on July 9, 2008 is LIFTED.
SO ORDERED.
Corona, Velasco, Jr., Peralta and Del Castillo, ** JJ.,
concur.
||| (NPC v. Maruhom, G.R. No. 183297, December 23,
2009)