1

[G.R. No. 120961. October 2, 1997]

DISTILLERIA WASHINGTON, INC. or WASHINGTON DISTILLERY, INC., petitioner
vs LA TONDEA DISTILLERS, INC. and THE HONORABLE COURT OF APPEALS,
respondents.
R E S O L U T I O N
KAPUNAN, J.:

On October 17, 1996, this court rendered a decision in the above-entitled case, the
dispositive portion of which reads, as follows:

WHEREFORE, the decision of the appellate court is MODIFIED by ordering LTDI to
pay petitioner just compensation for the seized bottles. Instead, however, of
remanding the case to the Court of Appeals to receive evidence on, and thereafter
resolve, the assessment thereof, this Court accepts and accordingly adopts the
quantification of P18,157.00 made the the trial court. No costs.

With the deanial of the Motion for Reconsideration ,petitioner sought a second
reconsideration with leave of court of our decision raising new issues, to wit:

1.01.d. The Supreme Court, in its Decision of October 17, 1996, modified the
decision of the Court of Appeals. It held that ownership of the bottles has passed to
the consumer, ultimately, to Washington Distillery, Inc., thereby upholding the finding
of the Regional Trial Court and reversing the ruling or the Court of Appeals;
nonetheless, while ruling that the ownership over the bottles had passed to
Washington Distillery, Inc.,it held that Washington Distillery, Inc. may not use the
bottles because of the trademark protection to the registrant (La Tondea Distillers,
Inc.). Instead of directing the return to the bottles to Washington Distillery, Inc., the
Court ordered La Tondea Distillers, Inc. to pay Washington Distillery, Inc. the
amount of P18,157.00.

2.00. The decision of the Supreme Court itself therefore raises new issues. As owner
of the bottles, should not Washington Distillery, Inc. be given possession of the
bottles? Would its use of the bottles violate the trademark protection of the
registrant, La Tondea Distillers, Inc. afforded by R.A. 623, as amended?

3.00. The Motion for Reconsideration of the petitioner Washington Distillery, Inc. is
addressed to these new issues. They had not been previously addressed by the
parties. They could not have been previously passed upon. It could hardly be said
that no substantial argument, not previously raised, is made in the Motion for
Reconsideration to warrant a modification of the Courts decision.

On May 21, 1997, the Court resolved to set for hearing the motion for reconsideration
on May 28, 1997 for its judicious disposition. Thereafter, the parties as required by
the Court filed their simultaneous memoranda to expound and lay particular
emphasis on the provision of Section 5 of R.A. 623 which proscribes the filing of an
action against any person to whom registered manufacturer, bottler or seller has
transferred by way of sale, any to the containers. The parties complied.

A reexamination of the arguments raised by petitioner in its Second Motion for
Reconsideration filed on February 13, 1997, in the hearing on May 28, 1997 and in
the subsequent memorandum filed thereafter, convinces us the merits of its position.

To recall, La Tondea Distillers, Inc. (La Tondea, for short) filed before the Regional
Trial Court for the recovery, under its claim of ownership, of possession or replevin
against Distilleria Washington, Inc. or Washington Distillery, Inc. (Distilleria
Washington) of 18,157 empty 350 c.c. white flint bottles bearing the blown-in marks
of La Tondea Inc. and Ginebra San Miguel, averring that Distilleria Washington
was using the bottles for its own Gin Seven products without the consent of
Distilleria Washington in violation of Republic Act 623.

The trial court in its decision dismissed the complaint, upholding Distilleria
Washingtons contention that a purchaser of liquor pays only a single price for the
liquor and the bottle and is not required to return the bottle at any time.

The Court of Appeals reversed the trial courts decision, ruling that under Republic
Act 623, the use of marked bottles by any person other than the manufacturer, bottler
or seller, without the latters written consent, is unlawful. It emphasized that the
marks of La Tondea s ownership stamped or blown-in to the bottles are sufficient
notice to the public that the bottles are La Tondeas property; hence, Distilleria
Washington cannot be considered a purchaser on good faith.

While our decision of October 17, 1996 affirmed with modification the Court of
Appeals decision, we at least implicitly acknowledge that there was a valid transfer of
the bottles to Distilleria Washington, except that its possession of the bottles without
the written consent of La Tondea gives rise to a prima facie presumption of illegal
use under R.A. 623.

2

In seeking reconsideration of the decision of this Court, petitioner advances, among
others, the following arguments:

(1) If, as the Court found in its decision of October 17, 1996, Distilleria Washington
had acquired ownership of the bottles, La Tondeas suit for replevin, where the sole
issue is possession, should be denied.

(2) Since the right of ownership over the bottles gives rise, accordiing to the Courts
own language, to its own elements of jus posidendi, jus utendi, jus fruendi, jus
disponendi, and jus abutendi, along with the applicable jus lex, to allow La Tondea
to keep the bottles is to deny Distilleria Washington, the very attributes or elements of
its ownership.

(3) There is no showing--and it cannot be assumed--that if Distilleria Washington
would have possession of the bottles, it will exercise the other attributes of
ownership, along with the applicable jus lex, over the marks of ownership stamped
or marked on the bottles.

(4) The provision in Sec. 3 of Republic Act 623 to the effect that the use by any
person other than the registered manufacturer, bottler or seller without the written
permission of the latter of any such bottle, etc. shall give rise to a prima facie
presumption that such use or possession is unlawful, does not arise in the instant
case because the Court has itself found Section 5 of the same law applicable.

Additionally, petitioner argues with persuasion the following points in its
memorandum:

(5) It is absurd to hold the buyer such as Distilleria Washington, liable for the
possession and use of its own bottles without the written consent of La Tondea who
is no longer the owner thereof and for which it has received payment in full.

(6) To hold the buyer liable under Sections 2 and 3 would grant La Tondea the
extraordinary right not only of possession and use of the bottles which it has sold and
no longer owns, but also to sell said bottles ad infinitum, thus enriching itself unjustly.

(7) It is manifestly unjust and unconscionable that millions of buyers of Ginebra
San Miguel, who pay not only for gin but also for the bottles containing it should run
the risk of criminal prosecution by the mere fact of possession of the empty bottles
after consuming the liquor.

Distilleria Washingtons motion raises the novel issue that if, as we ruled in our
decision of October 17, 1996, petitioner became the owner over the bottles seized
from it by replevin, then it has the right to their possession and use as attributes of
ownership, unless their use violates the trademark or incorporeal rights accorded
private respondent by R.A 623 which has not really been established in this case.

As pointed out in our decision,

Parenthetically, petitioner is not here being charged with violation of Sec. 2 of R.A.
623 or the Trademark Law. The instant case is one for replevin (manual delivery)
where the claimant must be able to show convincingly that he is either the owner or
clearly entitled to the possession of the object sought to be recovered. Replevin is a
possessory action. The gist of which focuses on the right of possession that in turn,
is dependent on a legal basis that, not infrequently, looks to the ownership of the
object sought to be replevied.

Since replevin as a possessory action is dependent upon ownership, it is relevant to
ask: Did La Tondea Distillers, Inc. transfer ownership of its marked bottles or
containers when it sold its products in the market? Were the marked bottles or
containers part of the products sold to the public?

In our decision sought to be reconsidered, we categorically answered the question in
the affirmative in this wise:

R.A. No. 623 does not disallow the sale or transfer of ownership of the marked
bottles or containers. In fact, the contrary is implicit in the law thus:

SEC. 5. x x x.

SEC. 6. x x x

Scarcely disputed are certain and specific industry practices in the sale of gin. The
manufacturer sells the product in marked containers, through dealers, to the public in
supermarkets, grocery shops, retail stores and other sales outlets. The buyer takes
the item; he is neither required to return the bottle nor required to make a deposit to
assure its return to the seller. He could return the bottle and get a refund. A number
of bottles at times find their way to commercial users. It cannot be gainsaid that
ownership of the containers does pass on the consumer albeit subject to the statutory
limitations on the use of the registered containers and to the trademark rights of the
registrant. The statement in Section 5 of R.A. 623 to the effect that the sale of
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beverage contained the said containers shall not include the sale of the containers
unless specifically so provided is not a rule of proscription. It is a rule of construction
that, in keeping with the spirit and intent of the law, establishes at best a presumption
(of non-conveyance of the container) and which by no means can be taken to be
either interdictive or conclusive in character. Upon the other hand, LTDIs sales
invoice, stipulating that the sale does not include the bottles with the blown-in marks
of ownership of La Tondea Distillers, cannot affect those who are not privies
thereto.

In plain terms, therefore, La Tondea not only sold its gin products but also the
marked bottles or containers, as well. And when these products were transferred by
way of sale, then ownership over the bottles and all its attributes (jus utendi, jus
abutendi, just fruendi, jus disponendi) passed to the buyer. It necessarily follows that
the transferee has the right to possession of the bottles unless he uses them in
violation of the original owners registered or incorporeal rights.

After practically saying that La Tondea has surrendered ownership and
consequently, possession of the marked bottles or container, it is incongrous and,
certainly, it does not seem fair and just to still allow La Tondea, citing the prima facie
presumption of illegal use under Sec. 3 of R.A. 623., to retain possession of the
seized bottles by simply requiring payment of just compensation to petitioner.

The pertinent provisions of R.A. 623 are as follows:

SEC. 2. It shall be unlawful for any person, without the written consent of the
manufacturer, bottler, or seller (underscoring supplied) who has successfully
registered the marks of ownership in accordance with the provisions of the next
preceding section, to fill such bottles, boxes, kegs, barrels, steel cylinders, tanks,
flasks, accumulators, or other similar containers so marked or stamped, for the
purpose of sale, or to sell, dispose of, buy or traffic in, or wantonly destroy the same,
whether filled or not to use the same for drinking vessels or glasses or drain pipes,
foundation pipers, for any other purpose than that registered by the manufacturer,
bottler or seller. Any violation of this section shall be punished by a fine of not more
than one thousand pesos or imprisonment of not more than one year or both.

SEC. 3. The use by any person other than the registered manufacturer, bottler or
seller, without written permission of the latter (underscoring supplied) of any such
bottle, cask, barrel, keg, box, steel cylinders, tanks, flask, accumulators, or other
similar containers, or the possession thereof without written permission of the
manufacturer, by any junk dealer or dealer in casks, barrels, keg, boxes, steel
cylinders, tanks, flask, accumulators or other similar containers, the same being duly
marked or stamped and registered as herein provided, shall give rise to a prima facie
presumption that such use or possession is unlawful.

x x x

SEC. 5. No action shall be brought under this Act (underscoring supplied) against
any person to whom the registered manufacturer, bottler or seller, has transferred by
way of sale, (underscoring supplied) any of the containers herein referred to, but the
sale of the beverage contained in the said containers shall not include the sale of the
containers unless specifically so provided.

In resolving that petitioner is the owner of the bottles, this Court applied Section 5 of
R.A. 623; and in withholding possession of the bottles from the petitioner and in
concluding that use or possession thereof without the written permission of the
registered owner would constitute prima facie presumption of illegal use, this Court
invoked Sections 2 and 3 of the same law.

A careful reading of Sections 2, 3 and 5 of R.A. 623 would lead to the conclusion that
they contemplate situations separate and distinct from each other. Section 2
prohibits any person from using, selling or otherwise disposing of registered
containers without the written consent of the registrant. Such rights belong
exclusively to the registrant. Under Section 3, mere possession of such registered
containers without the written consent of the registrant is prima facie presumed
unlawful.

It appears - and this is the critical point - that Sections 2 and 3 apply only when the
filling up of the bottle or the use of the bottle is without the written permission of
the registered manufacturer, bottler, or seller, who has registered the marks of
ownership of the bottles. It is thus implicit that Sections 2 and 3 apply only when
the registered manufacturer, bottler, or seller retain ownership of the bottles.

Upon the other hand, when the bottles have been transferred by way of sale,
Section 5 applies, thereby precluding the institution of any action under this Act,
meaning to say, including any action under Sections 2 and 3.

The general rule on ownership, therefore, must apply and petitioner be allowed to
enjoy all the rights of an owner in regard the bottles in question, to wit: the jus utendi
or the right to receive from the thing what it produces; the jus abutendi or the right to
consume the thing by its use; the jus disponendi or the power of the owner to
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alienate, encumber, transform and even destroy the thing owned; and the jus
vindicandi or the right to exclude from the possession of the thing owned any other
person to whom the owner has not transmitted such thing. What is proscribed is the
use of the bottles in infringement of anothers trademark or incorporeal rights.

Since the Court has found that the bottles have been transferred by way of sale then,
La Tondea has relinquished all its proprietary rights over the bottles in favor of
Distilleria Washington who has obtained them in due course. Now as owner, it can
exercise all attributes of ownership over the bottles. This is the import of the decision
that La Tondea had transferred ownership over its marked bottles or containers
when it sold its gin products to the public. While others may argue that Section 5 is
applicable only to the immediate transferee of the marked bottles or container, this
matter is best discussed where the applicability of Sec. 5, R.A. 623 is squarely
raised. It must be recalled, however, that this is a case of replevin, not a violation of
the "trademark protection of the registrant" under R.A. 623 or of the Trademark Law.

A query may be posed: Would use of the bottles constitute a violation of the
incorporeal rights of La Tondea Distillers, Inc. over its marks of ownership
embossed on the bottles? While apparently relevant, it would be improper and
premature for this Court to rule on the point because:

First, because violation of the marks of ownership of La Tondea Distillers, Inc, on
the bottles has not been put in issue, the parties did not have the opportunity to
ventilate their respective positions on the matter. Thus, a ruling would be violative of
due process.

Second, the question calls for a factual investigation which this Court has generally
not taken upon itself to undertake because it is not a trier of facts; and

Third, disregarding the above, the facts before this Court do not provide a sufficient
basis for a fair and intelligent resolution of the question.

Moreover, our decision added that the Court sees no other insistence to keep the
bottles, except for such continued use. This, to our mind, is rather speculative at this
point; something which was never touched upon in the proceedings below.

We cannot also be oblivious of the fact that if La Tondeas thesis that every
possession of the bottles without the requisite written consent is illegal, thousands
upon thousands of buyers of Ginebra San Miguel would be exposed to criminal
prosecution by the mere fact of possession of the empty bottles after consuming the
content.

One last point. It may not be amiss to state that La Tondea is a big and established
distillery which already has captured a big share of the gin market, estimated to be
90%. Distilleria Washington, on the other hand, together with other small distillers -
around 40 in number; admittedly concedes that it cannot fight this giant but only asks
a share of the market. It cannot afford to manufacture its own bottles and just have
to rely on recycled bottles to sell its products. To disallow the use of these recycled
products would necessarily deprive it a share of the market which La Tondea seeks
to monopolize.

We recognize the role of large industry in the growth of our nascent economy.
However, small industries likewise play a vital role in economic growth, playing a
significant part in the success of such tiger economies as Korea, Taiwan and
Thailand. Industries, big and small, should adopt symbiotic relationship, not the
animosity of Goliath and David. Our holding today merely recognizes that in the
countrys march toward economic development and independence, it is essential that
a balance protecting small industries and large scale businesses be maintained.

IN VIEW OF THE FOREGOING, the Court RESOLVED to RECONSIDER its
Decision promulgated on October 17, 1996 and render another judgment
REVERSING in toto the Decision of the Court of Appeals promulgated on January
11, 1995 and its Resolution of June 23, 1995. The decision of the Regional Trial
Court of December 3, 1991 is REINSTATED. SO ORDERED















5

[G.R. No. 146815. April 9, 2003]

HEIRS OF PEDRO LAURORA and LEONORA LAURORA, petitioners, vs.
STERLING TECHNOPARK III and S.P. PROPERTIES, INC., respondents.
D E C I S I O N
PANGANIBAN, J.:

The owners of a property have no authority to use force and violence to eject alleged
usurpers who were in prior physical possession of it. They must file the appropriate
action in court and should not take the law into their own hands.

The Case

Before us is a Petition for Review[1] under Rule 45 of the Rules of Court, seeking to
set aside the June 27, 2000 Decision[2] and the January 22, 2001 Resolution[3] of
the Court of Appeals[4] (CA) in CA-GR SP No. 54667. The dispositive part of the
Decision reads:

WHEREFORE, the [P]etition is GRANTED and the RTC [D]ecision dated 06 May
1999 and the RTC [O]rder dated 03 August 1999 are hereby REVERSED and SET
ASIDE, and corollarily, the MCTC [D]ecision is AFFIRMED. [5]

The assailed Resolution denied petitoners Motion for Reconsideration.

The Facts

The factual antecedents are summarized by the CA as follows:

In a [C]omplaint for Forcible Entry with Damages filed on 27 September 1997 before
the Fifth Municipal Circuit Trial Court of Carmona and Gen. Mariano Alvarez, plaintiffs
therein, x x x Pedro Laurora and Leonora Laurora [herein petitioners] alleged that
they [were] the owners of Lot 1315-G, SWD-40763 of the Yaptinchay Estate with an
area of 39,771 sq. meters and located in Carmona, Cavite. Pedro Laurora planted
trees and has possessed the land up to the present. On 15 September 1997,
[respondents] Sterling Technopark III and S.P. Properties, Inc. x x x through their
Engr. Bernie Gatchalian bulldozed and uprooted the trees and plants, and with the
use of armed men and by means of threats and intimidation, succeeded in forcibly
ejecting [petitioners]. As a result of their dispossession, [petitioners] suffered actual
damages in the amount of P3,000,000.00 and P10,000.00 as attorneys fees.

In their [A]nswer to the [C]omplaint, [respondents] averred that [petitioners were] not
the owners of the land because they disposed of it sometime in 1976 as shown by
legal documents. On 02 April 1969, the Land Authority issued an order of award in
favor of [petitioners], approving the application of Pedro Laurora to buy the subject
Lot 1315-G from the government. On 01 March 1974, [petitioners] requested the
Department of Agrarian Reform for the transfer of the lot to Juan Manaig. Favorably
acted upon, the DAR issued a permit to transfer dated 03 June 1975 through its
Regional Director Benjamin R. Estrellado. On 03 July 1975, Juan Manaig, as
transferee and buyer, paid the required amount of P10,643.65 under Official Receipt
No. 8304707 to the government as full payment for the transfer of said lot to him. On
26 March 1976, the [petitioners] as sellers and witnessed by their sons, Efren
Laurora and Dominador Laurora, executed a Kasulatan ng Paglilipatan ng Lupa
transferring the land to Juan Manaig as buyer. On 11 June 1976, the [petitioners]
again witnessed by their sons, Efren and Dominador, executed a Kasulatan ng
Bilihang Tuluyan or Deed of Sale wherein they sold Lot 1315-G including all
improvements therein, in favor of Juan Manaig. The Deed of Absolute Sale was
approved by the Department of Agrarian Reform on 14 June 1976 in DAR Approval
of Transfer of Rights signed by DAR Regional Director, Benjamin R. Estrellado.
After the approval of the sale from the [petitioners] to Juan Manaig, the latter paid its
real estate taxes. The tax declarations of the land in the name of its previous
owners, Yaptinchays, were cancelled and transferred in the name of [petitioner]
Pedro Laurora as owner-transferee. Thereupon, the heirs of the late JUAN
MANAIG sold the land to Golden Mile Resources Development Corporation which
likewise sold it to [respondent] S. P. Properties, Inc.

After summary proceedings in the MCTC, x x x, a judgment was rendered
dismissing the complaint. The case was elevated to the Regional Trial Court. In due
course, the said court rendered a decision reversing the MCTC judgment. x x x[6]

Ruling of the Court of Appeals

The CA reversed the Regional Trial Court (RTC) and reinstated the Order of
dismissal issued by the Municipal Circuit Trial Court (MCTC). It held that there was
no evidence to support the claim of petitioners to the prior physical possession of the
property. The evidence allegedly showed that they had already sold the land with the
approval of the Department of Agrarian Reform (DAR). Accordingly, their
subsequent entry into and possession of the land constituted plain usurpation, which
could not be the source of any right to occupy it. Being planters in bad faith, they had
no right to be reimbursed for improvements on the land, in accordance with Article
449 of the New Civil Code.
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Hence, this Petition.[7]

The Issue

In their Memorandum,[8] petitioners raise this sole issue for our consideration:

x x x [W]hether [p]rivate [r]espondent[s] ha[ve] a valid and legal right to forcibly eject
petitioners from the premises despite their resistance and objection, through the use
of arm[ed] men and by bulldozing, cutting, and destroying trees and plants planted by
petitioners, without court order, to the damage and prejudice of the latter.[9]

The Courts Ruling

The Petition is meritorious.

Main Issue:
Physical Possession of the Land

The only issue in forcible entry cases is the physical or material possession of real
property -- possession de facto, not possession de jure.[10] Only prior physical
possession, not title, is the issue.[11] If ownership is raised in the pleadings, the court
may pass upon such question, but only to determine the question of possession.[12]

The ownership claim of respondents upon the land is based on the evidence they
presented. Their evidence, however, did not squarely address the issue of prior
possession. Even if they succeed in proving that they are the owners of the land,[13]
the fact remains that they have not alleged or proved that they physically possess it
by virtue of such ownership. On the other hand, petitioners prior possession of the
land was not disputed by the CA, which merely described it as usurpation.[14]

We stress that the issue of ownership in ejectment cases is to be resolved only when
it is intimately intertwined with the issue of possession,[15] to such an extent that the
question of who had prior possession cannot be determined without ruling on the
question of who the owner of the land is.[16] No such intertwinement has been
shown in the case before us. Since respondents claim of ownership is not being
made in order to prove prior possession, the ejectment court cannot intrude or dwell
upon the issue of ownership.[17]

Notwithstanding the actual condition of the title to the property, a person in
possession cannot be ejected by force, violence or terror -- not even by the
owners.[18] If such illegal manner of ejectment is employed, as it was in the present
case, the party who proves prior possession -- in this case, petitioners -- can recover
possession even from the owners themselves. [19]

Granting arguendo that petitioners illegally entered into and occupied the property in
question, respondents had no right to take the law into their own hands and
summarily or forcibly eject the occupants therefrom.

Verily, even if petitioners were mere usurpers of the land owned by respondents, still
they are entitled to remain on it until they are lawfully ejected therefrom. Under
appropriate circumstances, respondents may file, other than an ejectment suit, an
accion publiciana -- a plenary action intended to recover the better right to
possess;[20] or an accion reivindicatoria -- an action to recover ownership of real
property.[21]
The availment of the aforementioned remedies is the legal alternative to prevent
breaches of peace and criminal disorder resulting from the use of force by claimants
out to gain possession.[22] The rule of law does not allow the mighty and the
privileged to take the law into their own hands to enforce their alleged rights. They
should go to court and seek judicial vindication.

WHEREFORE, the Petition is GRANTED and the assailed Decision REVERSED and
SET ASIDE. No costs.

SO ORDERED.

Puno, (Chairman), Sandoval-Gutierrez, Corona, and Carpio-Morales, JJ., concur.












7


[G.R. No. 158554. May 26, 2005]

SPS. RONALD HUTCHISON and VALENTINE NAVALLE-HUTCHISON, petitioners,
vs. ENRIQUE M. BUSCAS, respondent.
D E C I S I O N
PUNO, J.:

The case at bar concerns a boundary dispute involving 6,471 square meters of land
in San Juan, Lubao, Pampanga. Petitioner spouses RONALD and VALENTINE
HUTCHISON seek the reversal of the Decision of the Court of Appeals in CA-G.R.
CV No. 66077, dated February 19, 2003, holding that respondent ENRIQUE M.
BUSCAS is entitled to the possession of the disputed area.

The records show that on October 1, 1987, petitioner spouses purchased from V.A.
Development Enterprises, Inc. a 76,207-sq. m. land (designated as Lot No. 7216) in
San Juan, Lubao, Pampanga. They occupied the land after a title was issued in their
names.


On August 22, 1989, one Juanita Arrastia, the owner of a lot adjacent to that of
petitioner spouses, sold a portion of her land to respondent. The transaction,
covering 7,581 sq. m. (designated as Lot No. 7047-A), was evidenced by a Quitclaim
Deed in favor of respondent. Respondent occupied 1,100 sq. m. of his land.
However, he failed to register the portion of the lot in his name and title to the
property remained in Arrastias name.

On January 10, 1995, respondent commissioned geodetic engineer Narciso
Manansala to survey his property. Manansala prepared a sketch/subdivision plan of
respondents lot. His survey revealed that 6,471 sq. m. thereof was occupied by
petitioner spouses.

Respondent sent a demand letter to petitioner spouses to vacate the encroached
area. Petitioner spouses refused and insisted that it was part of their land. Thus,
respondent filed a complaint for unlawful detainer (Civil Case No. 1329) against
petitioner spouses before the Municipal Trial Court (MTC) of Lubao, Pampanga. After
trial, the MTC ruled in favor of respondent. However, on appeal, the Regional Trial
Court (RTC) dismissed the case. It ruled that MTC had no jurisdiction over the
subject matter as it is a boundary dispute and the proper action should have been an
accion reinvindicatoria before the RTC.

Consequently, respondent filed a case for accion reinvindicatoria against petitioner
spouses with the RTC of Guagua, Pampanga.[1] At the trial, respondent adduced in
evidence the Quitclaim Deed to prove his title over the disputed area. He likewise
testified on the survey conducted by Manansala. Another geodetic engineer,
Angelito H. Nicdao, testified that in the unlawful detainer case earlier filed by the
respondent, he was directed by the MTC judge hearing the case to conduct a
verification survey of the parties lots. In compliance with the order, he surveyed the
two (2) lots using the title of petitioner spouses and the records of the Bureau of
Lands.[2] His survey revealed that petitioner spouses encroached on 6,471 sq. m. of
the adjacent land claimed by respondent. Respondent offered in evidence the
verification plan and report of Nicdao relative to his survey.

On the part of petitioner spouses, petitioner Valentine Hutchison testified that she
purchased Lot No. 7216 in Lubao, Pampanga, covering an area of 76,207 sq. m.,
and title thereto was duly issued in her name and that of her spouse.

After trial, the RTC dismissed[3] the complaint for lack of merit. It ruled that
respondents Quitclaim Deed was not sufficient proof of ownership; that respondent
failed to clearly identify the property claimed as it was only marked with an X sign,
and; that petitioner spouses, as registered owners, are entitled to possession of the
disputed lot.

On appeal, the Court of Appeals reversed the decision of the trial court. [4] It ruled
that respondent is entitled to possession of the disputed area as he was able to
prove his claim of ownership and the identity of the subject land.

Hence, this appeal where petitioner spouses assign the following errors:

I

THE COURT OF APPEALS ERRED IN ITS CONCLUSION THAT THE
RESPONDENT SUFFICIENTLY IDENTIFIED THE PROPERTY HE SEEKS TO
RECOVER.

II

THE COURT OF APPEALS ERRED IN ITS LEGAL CONCLUSION OF LAW THAT
THE TITLE OF THE RESPONDENT TO THE SUBJECT PROPERTY IS THE
QUITCLAIM DEED OVER A PORTION OF LAND.
8


III

THE COURT OF APPEALS ERRED IN ITS LEGAL CONCLUSION THAT THE
RESPONDENT STRENGTHENED HIS TITLE BY THE SURVEY HE CAUSED TO
BE PREPARED.

IV

THE COURT OF APPEALS ERRED IN ITS CONCLUSION OF LAW THAT THE
RESPONDENT PROVED BY A PREPONDERANCE OF EVIDENCE THAT HIS
PROPERTY WAS ENCROACHED UPON BY THE PETITIONERS.

V

THE COURT OF APPEALS ERRED IN ITS CONCLUSION OF LAW THAT THE
RESPONDENT IS DECLARED OWNER OF THE 6,471 SQUARE-METERS
DISPUTED LOT, AND THE PETITIONERS ARE THUS ORDERED TO VACATE
THE SAME.

Petitioner spouses contend that there was a gross misapprehension of facts by the
Court of Appeals and its legal conclusions were contrary to law and jurisprudence.
They assert that respondent failed to identify the portion of land he was claiming and
prove his ownership thereof. They allege that: (a) respondents identification of his
7,581 sq. m. property with a mere X mark on the Annex A of the Quirclaim Deed is
insufficient as the attached Annex A was not presented at the trial, and; (b) the
surveys conducted by the geodetic engineers cannot be used to identify respondents
lot as they were based on the records of the Bureau of Lands and not on the
document of title of respondent.

We find for the petitioner spouses.

In civil cases, the law requires that the party who alleges a fact and substantially
asserts the affirmative of the issue has the burden of proving it.[5] This evidentiary
rule is based on the principle that the suitor who relies upon the existence of a fact
should be called upon to prove it.[6]

Article 434 of the New Civil Code[7] provides that to successfully maintain an action
to recover the ownership of a real property, the person who claims a better right to it
must prove two (2) things: first, the identity of the land claimed, and; second, his title
thereto. In the case at bar, we find that respondent failed to establish these two (2)
legal requirements.

The first requisite: the identity of the land. In an accion reinvindicatoria, the person
who claims that he has a better right to the property must first fix the identity of the
land he is claiming by describing the location, area and boundaries thereof.[8] Anent
the second requisite, i.e., the claimants title over the disputed area, the rule is that a
party can claim a right of ownership only over the parcel of land that was the object of
the deed.[9] Respondent sought to prove these legal requisites by anchoring his
claim on the Quitclaim Deed over a portion of land which was executed by Arrastia in
his favor. However, a cursory reading of the Quitclaim Deed shows that the subject
land was described, thus:

x x x a portion of that property situated at San Juan, Lubao, Pampanga which
portion subject of this sale consists of 7,581 square meters more or less, as indicated
particularly in the herein attached plan marked as Annex A and made an integral
part hereof, and the subject property with an X sign.

Thus, the Quitclaim Deed specified only the extent of the area sold, i.e., 7,581 sq. m.
of Arrastias land. Annex A of the Deed, where the entire lot of Arrastia was
particularly described and where the specific portion of the property sold to
respondent was marked, was not presented by respondent at the trial. As the Deed
itself failed to mention the metes and bounds of the land subject of the sale, it cannot
be successfully used by respondent to identify the area he was claiming and prove
his ownership thereof. Indeed, the presentation of the Annex A is essential as what
defines a piece of land is not the size mentioned in the instrument but the boundaries
thereof which enclose the land and indicate its exact limits.[10]

Neither can the surveys of the lots of petitioner spouses and respondent prove the
identity of the contested area and respondents ownership thereof. The records show
that when geodetic engineers Manansala and Nicdao surveyed the lands, they
merely relied on the self-serving statement of respondent that he owns the portion of
the lot adjacent to petitioner spouses. They were not shown the Deed of Quitclaim
and its Annex A or any other document of title which described the specific portion
of the land allegedly conveyed to respondent.[11] Thus, the surveys cannot be given
evidentiary weight to prove the identity of the land sold to respondent and his
ownership thereof.

Moreover, the rules on evidence provide that where the contents of the document are
the facts in issue, the best evidence is the instrument itself.[12] In the case at bar, the
9

identity of the land claimed and respondents ownership thereof are the very facts in
issue. The best evidence to prove these facts is the Quitclaim Deed and its Annex
A where respondent derives his title and where the land from which he purchased a
part was described with particularity, indicating the metes and bounds thereof.
Respondents failure to adduce in evidence Annex A of the Quitclaim Deed or
produce secondary evidence, after proof of its loss, destruction or unavailability,[13]
is fatal to his cause.

Finally, it bears stress that in an action to recover real property, the settled rule is that
the plaintiff must rely on the strength of his title, not on the weakness of the
defendants title.[14] This requirement is based on two (2) reasons: first, it is possible
that neither the plaintiff nor the defendant is the true owner of the property in
dispute,[15] and second, the burden of proof lies on the party who substantially
asserts the affirmative of an issue for he who relies upon the existence of a fact
should be called upon to prove that fact.[16] In the case at bar, as respondent failed
to prove his title to and identity of the contested land, there exists no legal ground
upon which to turn over the possession of the disputed area to him.

IN VIEW WHEREOF, the petition is GRANTED. The Decision of the Court of
Appeals in CA-G.R. CV No. 66077, dated February 19, 2003, is hereby reversed and
set aside. The Decision of the Regional Trial Court of Guagua, Pampanga,
dismissing the complaint for accion reinvindicatoria in Civil Case No. G-3183, is
reinstated. No pronouncement as to costs.

SO ORDERED.

Austria-Martinez, Callejo, Sr., and Chico-Nazario, JJ., concur.
Tinga, J., out of the country.
























G.R. No. 76217 September 14, 1989

GERMAN MANAGEMENT & SERVICES, INC., petitioner,
vs.
HON. COURT OF APPEALS and ERNESTO VILLEZA, respondents.

G.R. No. L-76216 September 14, 1989

GERMAN MANAGEMENT & SERVICES, INC., petitioner,
vs.
HON. COURT OF APPEALS and ORLANDO GERNALE, respondents.

Alam, Verano & Associates for petitioner.

Francisco D. Lozano for private respondents.



FERNAN, C.J.:

Spouses Cynthia Cuyegkeng Jose and Manuel Rene Jose, residents of
Pennsylvania, Philadelphia, USA are the owners of a parcel of land situated in Sitio
Inarawan, San Isidro, Antipolo, Rizal, with an area of 232,942 square meters and
covered by TCT No. 50023 of the Register of Deeds of the province of Rizal issued
on September 11, 1980 which canceled TCT No. 56762/ T-560. The land was
originally registered on August 5, 1948 in the Office of the Register of Deeds of Rizal
as OCT No. 19, pursuant to a Homestead Patent granted by the President of the
Philippines on July 27, 1948, under Act No. 141.
10


On February 26, 1982, the spouses Jose executed a special power of attorney
authorizing petitioner German Management Services to develop their property
covered by TCT No. 50023 into a residential subdivision. Consequently, petitioner on
February 9,1983 obtained Development Permit No. 00424 from the Human
Settlements Regulatory Commission for said development. Finding that part of the
property was occupied by private respondents and twenty other persons, petitioner
advised the occupants to vacate the premises but the latter refused. Nevertheless,
petitioner proceeded with the development of the subject property which included the
portions occupied and cultivated by private respondents.

Private respondents filed an action for forcible entry against petitioner before the
Municipal Trial Court of Antipolo, Rizal, alleging that they are mountainside farmers of
Sitio Inarawan, San Isidro, Antipolo, Rizal and members of the Concerned Citizens of
Farmer's Association; that they have occupied and tilled their farmholdings some
twelve to fifteen years prior to the promulgation of P.D. No. 27; that during the first
week of August 1983, petitioner, under a permit from the Office of the Provincial
Governor of Rizal, was allowed to improve the Barangay Road at Sitio Inarawan, San
Isidro, Antipolo, Rizal at its expense, subject to the condition that it shag secure the
needed right of way from the owners of the lot to be affected; that on August 15,
1983 and thereafter, petitioner deprived private respondents of their property without
due process of law by: (1) forcibly removing and destroying the barbed wire fence
enclosing their farmholdings without notice; (2) bulldozing the rice, corn fruit bearing
trees and other crops of private respondents by means of force, violence and
intimidation, in violation of P.D. 1038 and (3) trespassing, coercing and threatening to
harass, remove and eject private respondents from their respective farmholdings in
violation of P.D. Nos. 316, 583, 815, and 1028. 1

On January 7,1985, the Municipal Trial Court dismissed private respondents'
complaint for forcible entry. 2 On appeal, the Regional Trial Court of Antipolo, Rizal,
Branch LXXI sustained the dismissal by the Municipal Trial Court. 3

Private respondents then filed a petition for review with the Court of Appeals. On July
24,1986, said court gave due course to their petition and reversed the decisions of
the Municipal Trial Court and the Regional Trial Court. 4

The Appellate Court held that since private respondents were in actual possession of
the property at the time they were forcibly ejected by petitioner, private respondents
have a right to commence an action for forcible entry regardless of the legality or
illegality of possession. 5 Petitioner moved to reconsider but the same was denied by
the Appellate Court in its resolution dated September 26, 1986. 6

Hence, this recourse.

The issue in this case is whether or not the Court of Appeals denied due process to
petitioner when it reversed the decision of the court a quo without giving petitioner
the opportunity to file its answer and whether or not private respondents are entitled
to file a forcible entry case against petitioner. 7

We affirm. The Court of Appeals need not require petitioner to file an answer for due
process to exist. The comment filed by petitioner on February 26, 1986 has
sufficiently addressed the issues presented in the petition for review filed by private
respondents before the Court of Appeals. Having heard both parties, the Appellate
Court need not await or require any other additional pleading. Moreover, the fact that
petitioner was heard by the Court of Appeals on its motion for reconsideration
negates any violation of due process.

Notwithstanding petitioner's claim that it was duly authorized by the owners to
develop the subject property, private respondents, as actual possessors, can
commence a forcible entry case against petitioner because ownership is not in issue.
Forcible entry is merely a quieting process and never determines the actual title to an
estate. Title is not involved. 8

In the case at bar, it is undisputed that at the time petitioner entered the property,
private respondents were already in possession thereof . There is no evidence that
the spouses Jose were ever in possession of the subject property. On the contrary,
private respondents' peaceable possession was manifested by the fact that they
even planted rice, corn and fruit bearing trees twelve to fifteen years prior to
petitioner's act of destroying their crops.

Although admittedly petitioner may validly claim ownership based on the muniments
of title it presented, such evidence does not responsively address the issue of prior
actual possession raised in a forcible entry case. It must be stated that regardless of
the actual condition of the title to the property, the party in peaceable quiet
possession shall not be turned out by a strong hand, violence or terror. 9 Thus, a
party who can prove prior possession can recover such possession even against the
owner himself. Whatever may be the character of his prior possession, if he has in
his favor priority in time, he has the security that entitles him to remain on the
11

property until he is lawfully ejected by a person having a better right by accion
publiciana or accion reivindicatoria. 10

Both the Municipal Trial Court and the Regional Trial Court have rationalized
petitioner's drastic action of bulldozing and destroying the crops of private
respondents on the basis of the doctrine of self-help enunciated in Article 429 of the
New Civil Code. 11 Such justification is unavailing because the doctrine of self-help
can only be exercised at the time of actual or threatened dispossession which is
absent in the case at bar. When possession has already been lost, the owner must
resort to judicial process for the recovery of property. This is clear from Article 536 of
the Civil Code which states, "(I)n no case may possession be acquired through force
or intimidation as long as there is a possessor who objects thereto. He who believes
that he has an action or right to deprive another of the holding of a thing, must invoke
the aid of the competent court, if the holder should refuse to deliver the thing."

WHEREFORE, the Court resolved to DENY the instant petition. The decision of the
Court of Appeals dated July 24,1986 is hereby AFFIRMED. Costs against petitioner.

SO ORDERED.

Bidin and Cortes, JJ., concur.

Gutierrez, Jr., J., concurs in the result.

Feliciano, J., is on leave.























































12















G.R. Nos. L-33466-67 April 20, 1983

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MAMERTO NARVAEZ, defendant-appellant.

The Solicitor General for plaintiff-appellee.

Gonzalo B. Callanta (counsel de oficio) for defendant-appellant.



MAKASIAR, J.:

This is an appeal from the decision of the Court of First Instance of South Cotabato,
Branch I, in Criminal Cases Nos. 1815 and 1816 for murder which, after a joint trial,
resulted in the conviction of the accused in a decision rendered on September 8,
1970, with the following pronouncement:

Thus, we have a crime of MURDER qualified by treachery with the aggravating
circumstance of evident premeditation offset by the mitigating circumstance of
voluntary surrender. The proper penalty imposable, therefore, is RECLUSION
PERPETUA (Arts. 248 and 64, Revised Penal Code).

Accordingly, finding Mamerto Narvaez guilty beyond reasonable doubt of the crime of
murder,

(a) In Criminal Case No. 1815, he is hereby sentenced to RECLUSION
PERPETUA, to indemnify the heirs of the deceased Davis Q. Fleischer in the sum of
P 12,000.00 as compensatory damages, P 10,000.00 as moral damages, P 2,000.00
as attorney's fees, the offended party having been represented by a private
prosecutor, and to pay the costs;

(b) In Criminal Case No. 1816, he is hereby sentenced to RECLUSION
PERPETUA, to indemnify the heirs of the deceased Flaviano Rubia in the sum of
P12,000.00 as compensatory damages, P10,000.00 as moral damages, P2,000.00
as attorney's fees, the offended party having been represent by a private prosecutor,
and to pay the costs (p. 48, rec.).

The facts are summarized in the People's brief, as follows:

At about 2:30 in the afternoon of August 22, 1968, Graciano Juan, Jesus Verano and
Cesar Ibanez together with the two deceased Davis Fleischer and Flaviano Rubia,
were fencing the land of George Fleischer, father of deceased Davis Fleischer. The
place was in the boundary of the highway and the hacienda owned by George
Fleischer. This is located in the municipality of Maitum, South Cotabato. At the place
of the fencing is the house and rice drier of appellant Mamerto Narvaez (pp. 179-182,
t.s.n., Pieza II). At that time, appellant was taking his rest, but when he heard that the
walls of his house were being chiselled, he arose and there he saw the fencing going
on. If the fencing would go on, appellant would be prevented from getting into his
house and the bodega of his ricemill. So he addressed the group, saying 'Pare, if
possible you stop destroying my house and if possible we will talk it over what is
good,' addressing the deceased Rubia, who is appellant's compadre. The deceased
Fleischer, however, answered: 'No, gademit, proceed, go ahead.' Appellant
apparently lost his equilibrium and he got his gun and shot Fleischer, hitting him. As
Fleischer fell down, Rubia ran towards the jeep, and knowing there is a gun on the
jeep, appellant fired at Rubia, likewise hitting him (pp. 127-133, t.s.n., Defense
transcript). Both Fleischer and Rubia died as a result of the shotting' (pp. 9-14, t.s.n.,
Pieza I, pp. 8-9, Appellant's Brief, p.161, rec.).

It appears, however, that this incident is intertwined with the long drawn out legal
battle between the Fleischer and Co., Inc. of which deceased Fleischer was the
secretary-treasurer and deceased Rubia the assistant manager, on the one hand,
and the land settlers of Cotabato, among whom was appellant.

13

From the available records of the related cases which had been brought to the Court
of Appeals (CA-G.R. Nos. 28858-R and 50583-R) and to this Court on certiorari (G.R.
No. L-26757 and L-45504), WE take judicial notice of the following antecedent facts:

Appellant was among those persons from northern and central Luzon who went to
Mindanao in 1937 and settled in Maitum, a former sitio of Kiamba and now a
separate municipality of South Cotabato. He established his residence therein, built
his house, cultivated the area, and was among those who petitioned then President
Manuel L. Quezon to order the subdivision of the defunct Celebes Plantation and
nearby Kalaong Plantation totalling about 2,000 hectares, for distribution among the
settlers.

Shortly thereafter, Fleischer and Company, headed by George W. Fleischer, an
American landowner in Negros Oriental, filed sales application No. 21983 on June 3,
1937 over the same area formerly leased and later abandoned by Celebes Plantation
Company, covering 1,017.2234 hectares.

Meanwhile, the subdivision was ordered and a public land surveyor did the actual
survey in 1941 but the survey report was not submitted until 1946 because of the
outbreak of the second world war. According to the survey, only 300 hectares
Identified as Lots Nos. 22, 26 and 38, Ps. 176 Kiamba, were set aside for Sales
Application No. 21983, while the rest were subdivided into sublots of 5 to 6 hectares
each to be distributed among the settlers (pp. 32-33, G.R. No. L-45504).

The 300 hectares set aside for the sales application of Fleischer and Company was
declared open for disposition, appraised and advertised for public auction. At the
public auction held in Manila on August 14, 1948, Fleischer and Company was the
only bidder for P6,000.00. But because of protests from the settlers the
corresponding award in its favor was held in abeyance, while an investigator was
sent by the Director of Lands to Kiamba in the person of Atty. Jose T. Gozon Atty.
Gozon came back after ten days with an amicable settlement signed by the
representative of the settlers. This amicable settlement was later repudiated by the
settlers, but the Director of Lands, acting upon the report of Atty. Gozon, approved
the same and ordered the formal award of the land in question to Fleischer and
Company. The settlers appealed to the Secretary of Agriculture and Natural
Resources, who, however, affirmed the decision in favor of the company.

On May 29, 1950, the settlers filed Civil Case No. 240 in the Court of First Instance of
Cotabato which then consisted only of one sala, for the purpose of annulling the
order of the Secretary of Agriculture and Natural Resources which affirmed the order
of the Director of Lands awarding the contested land to the company. The settlers as
plaintiffs, lost that case in view of the amicable settlement which they had repudiated
as resulting from threats and intimidation, deceit, misrepresentation and fraudulent
machination on the part of the company. They appealed to the Court of Appeals (CA-
G.R. No. 28858-R) which likewise affirmed on August 16, 1965 the decision of the
Court of First Instance in favor of the company.

This resulted in the ouster of the settlers by an order of the Court of First Instance
dated September 24, 1966, from the land which they had been occupying for about
30 years. Among those ejected was the appellant who, to avoid trouble, voluntarily
dismantled his house, built in 1947 at a cost of around P20,000.00, and transferred to
his other house which he built in 1962 or 1963 near the highway. The second house
is not far from the site of the dismantled house. Its ground floor has a store operated
by Mrs. June Talens who was renting a portion thereof. He also transferred his store
from his former residence to the house near the highway. Aside from the store, he
also had a rice mill located about 15 meters east of the house and a concrete
pavement between the rice mill and the house, which is used for drying grains and
copra.

On November 14, 1966, appellant was among the settlers on whose behalf Jose V.
Gamboa and other leaders filed Civil Case No. 755 in the Court of First Instance of
Cotabato, Branch I. to obtain an injunction or annulment of the order of award with
prayer for preliminary injunction. During the pendency of this case, appellant on
February 21, 1967 entered into a contract of lease with the company whereby he
agreed to lease an area of approximately 100 to 140 square meters of Lot No. 38
from the company (Exh. 9, p. 1, Folder of Exhibits for Defense) for a consideration of
P16.00 monthly. According to him, he signed the contract although the ownership of
the land was still uncertain, in order to avoid trouble, until the question of ownership
could be decided. He never paid the agreed rental, although he alleges that the
milling job they did for Rubia was considered payment. On June 25, 1968, deceased
Fleischer wrote him a letter with the following tenor:

You have not paid six months rental to Fleischers & Co., Inc. for that portion of land
in which your house and ricemill are located as per agreement executed on February
21, 1967. You have not paid as as even after repeated attempts of collection made
by Mr. Flaviano Rubia and myself.

In view of the obvious fact that you do not comply with the agreement, I have no
alternative but to terminate our agreement on this date.

14

I am giving you six months to remove your house, ricemill, bodega, and water pitcher
pumps from the land of Fleischers & Co., Inc. This six- month period shall expire on
December 31, 1966.

In the event the above constructions have not been removed within the six- month
period, the company shall cause their immediate demolition (Exhibit 10, p. 2, supra).

On August 21, 1968, both deceased, together with their laborers, commenced
fencing Lot 38 by putting bamboo posts along the property line parallel to the
highway. Some posts were planted right on the concrete drier of appellant, thereby
cutting diagonally across its center (pp. 227-228, t.s.n., Vol. 2), with the last post just
adjacent to appellant's house (p. 231, t.s.n., supra). The fence, when finished, would
have the effect of shutting off the accessibility to appellant's house and rice mill from
the highway, since the door of the same opens to the Fleischers' side. The fencing
continued on that fateful day of August 22, 1968, with the installation of four strands
of barbed wire to the posts.

At about 2:30 p.m. on the said day, appellant who was taking a nap after working on
his farm all morning, was awakened by some noise as if the wall of his house was
being chiselled. Getting up and looking out of the window, he found that one of the
laborers of Fleischer was indeed chiselling the wall of his house with a crowbar (p.
129, t.s.n., Vol. 6), while deceased Rubia was nailing the barbed wire and deceased
Fleischer was commanding his laborers. The jeep used by the deceased was parked
on the highway. The rest of the incident is narrated in the People's Brief as above-
quoted. Appellant surrendered to the police thereafter, bringing with him shotgun No.
1119576 and claiming he shot two persons (Exh. Pp. 31, Defense Exhibits).

Appellant now questions the propriety of his conviction, assigning the following
errors:

First Assignment of Error: That the lower court erred in convicting defendant-
appellant despite the fact that he acted in defense of his person; and

Second Assignment of Error: That the court a quo also erred in convicting
defendant-appellant although he acted in defense of his rights (p. 20 of Appellant's
Brief, p. 145, rec.).

The act of killing of the two deceased by appellant is not disputed. Appellant admitted
having shot them from the window of his house with the shotgun which he
surrendered to the police authorities. He claims, however, that he did so in defense of
his person and of his rights, and therefore he should be exempt from criminal liability.

Defense of one's person or rights is treated as a justifying circumstance under Art.
11, par. 1 of the Revised Penal Code, but in order for it to be appreciated, the
following requisites must occur:

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending himself
(Art. 11, par. 1, Revised Penal Code, as amended).

The aggression referred to by appellant is the angry utterance by deceased Fleischer
of the following words: "Hindi, sigue, gademit, avante", in answer to his request
addressed to his compadre, the deceased Rubia, when he said, "Pare, hinto mona
ninyo at pag-usapan natin kung ano ang mabuti" (pp. 227-229, t.s.n., Vol. 6). This
was in reaction to his having been awakened to see the wall of his house being
chiselled. The verbal exchange took place while the two deceased were on the
ground doing the fencing and the appellant was up in his house looking out of his
window (pp. 225-227, supra). According to appellant, Fleischer's remarks caused this
reaction in him: "As if, I lost my senses and unknowingly I took the gun on the bed
and unknowingly also I shot Mr. Fleischer, without realizing it, I shot Mr. Fleischer" (p.
132, supra). As for the shooting of Rubia, appellant testified:

When I shot Davis Fleischer, Flaviano Rubia was nailing and upon hearing the shot,
Mr. Rubia looked at Mr. Fleischer and when Mr. Fleischer fell down, Mr. Rubia ran
towards the jeep and knowing that there was a firearm in the jeep and thinking that if
he will take that firearm he will kill me, I shot at him (p. 132, supra, Emphasis
supplied).

The foregoing statements of appellant were never controverted by the prosecution.
They claim, however, that the deceased were in lawful exercise of their rights of
ownership over the land in question, when they did the fencing that sealed off
appellant's access to the highway.

A review of the circumstances prior to the shooting as borne by the evidence reveals
that five persons, consisting of the deceased and their three laborers, were doing the
fencing and chiselling of the walls of appellant's house. The fence they were putting
15

up was made of bamboo posts to which were being nailed strands of barbed wire in
several layers. Obviously, they were using tools which could be lethal weapons, such
as nail and hammer, bolo or bamboo cutter, pliers, crowbar, and other necessary
gadgets. Besides, it was not disputed that the jeep which they used in going to the
place was parked just a few steps away, and in it there was a gun leaning near the
steering wheel. When the appellant woke up to the sound of the chiselling on his
walls, his first reaction was to look out of the window. Then he saw the damage being
done to his house, compounded by the fact that his house and rice mill will be shut
off from the highway by the fence once it is finished. He therefore appealed to his
compadre, the deceased Rubia, to stop what they were doing and to talk things over
with him. But deceased Fleischer answered angrily with 'gademit' and directed his
men to proceed with what they were doing.

The actuation of deceased Fleischer in angrily ordering the continuance of the
fencing would have resulted in the further chiselling of the walls of appellant's house
as well as the closure of the access to and from his house and rice mill-which were
not only imminent but were actually in progress. There is no question, therefore, that
there was aggression on the part of the victims: Fleischer was ordering, and Rubia
was actually participating in the fencing. This was indeed aggression, not on the
person of appellant, but on his property rights.

The question is, was the aggression unlawful or lawful? Did the victims have a right
to fence off the contested property, to destroy appellant's house and to shut off his
ingress and egress to his residence and the highway?

Article 30 of the Civil Code recognizes the right of every owner to enclose or fence
his land or tenements.

However, at the time of the incident on August 22, 1968, Civil Case no. 755 for
annulment of the order of award to Fleischer and Company was still pending in the
Court of First Instance of Cotabato. The parties could not have known that the case
would be dismissed over a year after the incident on August 22, 1968, as it was
dismissed on January 23, 1970 on ground of res judicata, in view of the dismissal in
1965 (by the Court of Appeals) of Civil Case No. 240 filed in 1950 for the annulment
of the award to the company, between the same parties, which the company won by
virtue of the compromise agreement in spite of the subsequent repudiation by the
settlers of said compromise agreement; and that such 1970 dismissal also carried the
dismissal of the supplemental petition filed by the Republic of the Philippines on
November 28, 1968 to annul the sales patent and to cancel the corresponding
certificate of title issued to the company, on the ground that the Director of Lands had
no authority to conduct the sale due to his failure to comply with the mandatory
requirements for publication. The dismissal of the government's supplemental petition
was premised on the ground that after its filing on November 28, 1968, nothing more
was done by the petitioner Republic of the Philippines except to adopt all the
evidence and arguments of plaintiffs with whom it joined as parties-plaintiffs.

Hence, it is reasonable to believe that appellant was indeed hoping for a favorable
judgment in Civil Case No. 755 filed on November 14, 1966 and his execution of the
contract of lease on February 21, 1967 was just to avoid trouble. This was explained
by him during cross-examination on January 21, 1970, thus:

It happened this way: we talked it over with my Mrs. that we better rent the place
because even though we do not know who really owns this portion to avoid trouble.
To avoid trouble we better pay while waiting for the case because at that time, it was
not known who is the right owner of the place. So we decided until things will clear up
and determine who is really the owner, we decided to pay rentals (p. 169, t.s.n.,
Vol.6).

In any case, Fleischer had given him up to December 31, 1968 (Exh.10, p. 2,
Defense Exhibits) within which to vacate the land. He should have allowed appellant
the peaceful enjoyment of his properties up to that time, instead of chiselling the walls
of his house and closing appellant's entrance and exit to the highway.

The following provisions of the Civil Code of the Philippines are in point:

Art. 536. In no case may possession be acquired through force or intimidation
as long as there is a possessor who objects thereto. He who believes that he has an
action or a right to deprive another of the holding of a thing must invoke the aid of the
competent court, if the holder should refuse to deliver the thing.

Art. 539. Every possessor has a right to be respected in his possession; and
should he be disturbed therein he shall be protected in or restored to said possession
by the means established by the laws and the Rules of Court (Articles 536 and 539,
Civil Code of the Philippines).

Conformably to the foregoing provisions, the deceased had no right to destroy or
cause damage to appellant's house, nor to close his accessibility to the highway
while he was pleading with them to stop and talk things over with him. The assault on
appellant's property, therefore, amounts to unlawful aggression as contemplated by
law.
16


Illegal aggression is equivalent to assault or at least threatened assault of immediate
and imminent kind (People vs. Encomiendas, 46 SCRA 522).

In the case at bar, there was an actual physical invasion of appellant's property which
he had the right to resist, pursuant to Art. 429 of the Civil Code of the Philippines
which provides:

Art. 429. The owner or lawful possessor of a thing has the right to exclude any
person from the enjoyment and disposal thereof. For this purpose, he may use such
force as may be reasonably necessary to repel or prevent an actual or threatened
unlawful physical invasion or usurpation of his property (Emphasis supplied).

The reasonableness of the resistance is also a requirement of the justifying
circumstance of self-defense or defense of one's rights under paragraph 1 of Article
11, Revised Penal Code. When the appellant fired his shotgun from his window,
killing his two victims, his resistance was disproportionate to the attack.

WE find, however, that the third element of defense of property is present, i.e., lack of
sufficient provocation on the part of appellant who was defending his property. As a
matter of fact, there was no provocation at all on his part, since he was asleep at first
and was only awakened by the noise produced by the victims and their laborers. His
plea for the deceased and their men to stop and talk things over with him was no
provocation at all.

Be that as it may, appellant's act in killing the deceased was not justifiable, since not
all the elements for justification are present. He should therefore be held responsible
for the death of his victims, but he could be credited with the special mitigating
circumstance of incomplete defense, pursuant to paragraph 6, Article 13 of the
Revised Penal Code.

The crime committed is homicide on two counts. The qualifying circumstance of
treachery cannot be appreciated in this case because of the presence of provocation
on the part of the deceased. As WE held earlier in People vs. Manlapaz (55 SCRA
598), the element of a sudden unprovoked attack is therefore lacking.

Moreover, in order to appreciate alevosia, "it must clearly appear that the method of
assault adopted by the aggressor was deliberately chosen with a special view to the
accomplishment of the act without risk to the assailant from any defense that the
party assailed might have made. This cannot be said of a situation where the slayer
acted instantaneously ..." (People vs. Caete, 44 Phil. 481).

WE likewise find the aggravating (qualifying) circumstance of evident premeditation
not sufficiently established. The only evidence presented to prove this circumstance
was the testimony of Crisanto Ibaez, 37 years old, married, resident of Maitum,
South Cotabato, and a laborer of Fleischer and Company, which may be summarized
as follows:

On August 20, 1968 (two days before the incident) at about 7:00 A.M., he was drying
corn near the house of Mr. and Mrs. Mamerto Narvaez at the crossing, Maitum,
South Cotabato, when the accused and his wife talked to him. Mrs. Narvaez asked
him to help them, as he was working in the hacienda. She further told him that if they
fenced their house, there is a head that will be broken. Mamerto Narvaez added
'Noy, it is better that you will tell Mr. Fleischer because there will be nobody who will
break his head but I will be the one.' He relayed this to Mr. Flaviano Rubia, but the
latter told him not to believe as they were only Idle threats designed to get him out of
the hacienda (pp. 297-303, t.s.n., Vol. 2).

This single evidence is not sufficient to warrant appreciation of the aggravating
circumstance of evident premeditation. As WE have consistently held, there must be
"direct evidence of the planning or preparation to kill the victim, .... it is not enough
that premeditation be suspected or surmised, but the criminal intent must be
evidenced by notorious outward acts evincing the determination to commit the crime"
(People vs. Ordioles, 42 SCRA 238). Besides, there must be a "showing" that the
accused premeditated the killing; that the culprit clung to their (his) premeditated act;
and that there was sufficient interval between the premeditation and the execution of
the crime to allow them (him) to reflect upon the consequences of the act" (People
vs. Gida, 102 SCRA 70).

Moreover, the obvious bias of witness Crisanto Ibaez, as a laborer of the deceased
Davis Fleischer, neutralizes his credibility.

Since in the case at bar, there was no direct evidence of the planning or preparation
to kill the victims nor that the accused premeditated the killing, and clung to his
premeditated act, the trial court's conclusion as to the presence of such circumstance
may not be endorsed.

Evident premeditation is further negated by appellant pleading with the victims to stop
the fencing and destroying his house and to talk things over just before the shooting.
17


But the trial court has properly appreciated the presence of the mitigating
circumstance of voluntary surrender, it appearing that appellant surrendered to the
authorities soon after the shooting.

Likewise, We find that passion and obfuscation attended the commission of the
crime. The appellant awoke to find his house being damaged and its accessibility to
the highway as well as of his rice mill bodega being closed. Not only was his house
being unlawfully violated; his business was also in danger of closing down for lack of
access to the highway. These circumstances, coming so near to the time when his
first house was dismantled, thus forcing him to transfer to his only remaining house,
must have so aggravated his obfuscation that he lost momentarily all reason causing
him to reach for his shotgun and fire at the victims in defense of his rights.
Considering the antecedent facts of this case, where appellant had thirty years earlier
migrated to this so-called "land of promise" with dreams and hopes of relative
prosperity and tranquility, only to find his castle crumbling at the hands of the
deceased, his dispassionate plea going unheeded-all these could be too much for
any man-he should be credited with this mitigating circumstance.

Consequently, appellant is guilty of two crimes of homicide only, the killing not being
attended by any qualifying nor aggravating circumstance, but extenuated by the
privileged mitigating circumstance of incomplete defense-in view of the presence of
unlawful aggression on the part of the victims and lack of sufficient provocation on
the part of the appellant-and by two generic mitigating circumstance of voluntary
surrender and passion and obfuscation.

Article 249 of the Revised Penal Code prescribes the penalty for homicide as
reclusion temporal. Pursuant to Article 69, supra, the penalty lower by one or two
degrees shall be imposed if the deed is not wholly excusable by reason of the lack of
some of the conditions required to justify the same. Considering that the majority of
the requirements for defense of property are present, the penalty may be lowered by
two degrees, i.e., to prision correccional And under paragraph 5 of Article 64, the
same may further be reduced by one degree, i.e., arresto mayor, because of the
presence of two mitigating circumstances and no aggravating circumstance.

The civil liability of the appellant should be modified. In the case of Zulueta vs. Pan
American World Airways (43 SCRA 397), the award for moral damages was reduced
because the plaintiff contributed to the gravity of defendant's reaction. In the case at
bar, the victims not only contributed but they actually provoked the attack by
damaging appellant's properties and business. Considering appellant's standing in
the community, being married to a municipal councilor, the victims' actuations were
apparently designed to humiliate him and destroy his reputation. The records
disclose that his wife, councilor Feliza Narvaez, was also charged in these two cases
and detained without bail despite the absence of evidence linking her to the killings.
She was dropped as a defendant only upon motion of the prosecution dated October
31, 1968. (p. 14, CFI rec. of Crim. Case No. 1816), but acted upon on November 4,
1968 (p. 58, CFI rec. of Criminal Case No. 1815).

Moreover, these cases arose out of an inordinate desire on the part of Fleischer and
Company, despite its extensive landholdings in a Central Visayan province, to extend
its accumulation of public lands to the resettlement areas of Cotabato. Since it had
the capability-financial and otherwise-to carry out its land accumulation scheme, the
lowly settlers, who uprooted their families from their native soil in Luzon to take
advantage of the government's resettlement program, but had no sufficient means to
fight the big landowners, were the ones prejudiced. Thus, the moral and material
suffering of appellant and his family deserves leniency as to his civil liability.

Furthermore, Article 39 of the Revised Penal Code requires a person convicted of
prision correccional or arrests mayor and fine who has no property with which to
meet his civil liabilities to serve a subsidiary imprisonment at the rate of one (1) day
for each P 2.50. However, the amendment introduced by Republic Act No. 5465 on
April 21, 1969 made the provisions of Art. 39 applicable to fines only and not to
reparation of the damage caused, indemnification of consequential damages and
costs of proceedings. Considering that Republic Act 5465 is favorable to the accused
who is not a habitual delinquent, it may be given retroactive effect pursuant to Article
22 of the Revised Penal Code.

WHEREFORE, FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT
OF ONLY TWO (2) HOMICIDES, MITIGATED BY THE PRIVILEGED
EXTENUATING CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE AS WELL
AS BY TWO (2) GENERIC MITIGATING CIRCUMSTANCES OF VOLUNTARY
SURRENDER AND OBFUSCATION, WITHOUT ANY AGGRAVATING
CIRCUMSTANCE, APPELLANT IS HEREBY SENTENCED TO SUFFER AN
IMPRISONMENT OF FOUR (4) MONTHS OF ARRESTO MAYOR, TO INDEMNIFY
EACH GROUP OF HEIRS OF DAVIS FLEISCHER AND OF FLAVIANO RUBIA IN
THE SUM OF FOUR THOUSAND (P 4,000.00) PESOS, WITHOUT SUBSIDIARY
IMPRISONMENT AND WITHOUT ANY AWARD FOR MORAL DAMAGES AND
ATTORNEY'S FEES.

18

CONSIDERING THAT APPELLANT HAS BEEN UNDER DETENTION FOR
ALMOST FOURTEEN (14) YEARS NOW SINCE HIS VOLUNTARY SURRENDER
ON AUGUST 22,1968, HIS IMMEDIATE RELEASE IS HEREBY ORDERED. NO
COSTS.

SO ORDERED.

Fernando, C.J., Teehankee, Concepcion Jr., Guerrero, De Castro, Melencio-Herrera,
Escolin Vasquez and Relova, JJ., concur.

Aquino, J., is on leave.

Plana, J., in the result.





Separate Opinions



ABAD SANTOS, J., dissenting:

I dissent. The self-defense of the Revised Penal Code refers to unlawful aggression
on persons, not property Plana, J., in the result.



GUTIERREZ, JR., J., dissenting:

While I agree with the order to release the appellant, I am constrained to dissent in
part. It is true that Art. 429, Civil Code of the Philippines, provides that the owner or
legal possessor of a thing may use such force as may be reasonably necessary to
repel or prevent an actual or threatened unlawful physical invasion or usurpation of
his property. It seems to me, however, that an attack on the person defending his
property is an indispensable element where an accused pleads self-defense but what
is basically defended is only property.

Defense of property is not of such importance as the right to life and defense of
property can only be invoked when it is coupled with some form of attack on the
person of one entrusted with said property. The defense of property, whether
complete or incomplete, to be available in prosecutions for murder or homicide must
be coupled with an attack by the one getting the property on the person defending it.

In the case now before Us, there is absolutely no evidence that an attack was
attempted, much less made upon the person of appellant. The mere utterance "No,
gademit proceed, go ahead" is not the unlawful aggression which entitles appellant to
the pela of self-defense. I agree with the majority opinion that the crime is homicide
but without any privileged mitigating circumstance.

Therefore, since the appellant is guilty beyond reasonable doubt of two (2)
homicides, mitigated by the two generic mitigating circumstances of voluntary
surrender and obfuscation, without any aggravating circumstance, maximum the
sentence the appellant should have served was prision mayor plus the
indemnification to each group of heirs of Davis Fleischer and of Flamiano Rubia of
the sum of Four Thousand (P4,000.00) Pesos, without subsidiary imprisonment, but
without any award for moral damages and attorney's fees.

Considering that appellant has been under detention for almost fourteen (14) years
now since August 22, 1968, he has served the penalty and should be released.



Separate Opinions

ABAD SANTOS, J., dissenting:

I dissent. The self-defense of the Revised Penal Code refers to unlawful aggression
on persons, not property Plana, J., in the result.



GUTIERREZ, JR., J., dissenting:

While I agree with the order to release the appellant, I am constrained to dissent in
part. It is true that Art. 429, Civil Code of the Philippines, provides that the owner or
legal possessor of a thing may use such force as may be reasonably necessary to
repel or prevent an actual or threatened unlawful physical invasion or usurpation of
19

his property. It seems to me, however, that an attack on the person defending his
property is an indispensable element where an accused pleads self-defense but what
is basically defended is only property.

Defense of property is not of such importance as the right to life and defense of
property can only be invoked when it is coupled with some form of attack on the
person of one entrusted with said property. The defense of property, whether
complete or incomplete, to be available in prosecutions for murder or homicide must
be coupled with an attack by the one getting the property on the person defending it.

In the case now before Us, there is absolutely no evidence that an attack was
attempted, much less made upon the person of appellant. The mere utterance "No,
gademit proceed, go ahead" is not the unlawful aggression which entitles appellant to
the pela of self-defense. I agree with the majority opinion that the crime is homicide
but without any privileged mitigating circumstance.

Therefore, since the appellant is guilty beyond reasonable doubt of two (2)
homicides, mitigated by the two generic mitigating circumstances of voluntary
surrender and obfuscation, without any aggravating circumstance, maximum the
sentence the appellant should have served was prision mayor plus the
indemnification to each group of heirs of Davis Fleischer and of Flamiano Rubia of
the sum of Four Thousand (P4,000.00) Pesos, without subsidiary imprisonment, but
without any award for moral damages and attorney's fees.

Considering that appellant has been under detention for almost fourteen (14) years
now since August 22, 1968, he has served the penalty and should be released.





































[G.R. No. 124058. December 10, 2003]

PEOPLE OF THE PHILIPPINES, appellee, vs. JESUS G. RETUBADO alias
JESSIE, appellant.
D E C I S I O N
CALLEJO, SR., J.:

This is an appeal from the Decision[1] of the Regional Trial Court, Toledo City,
Branch 29, in Criminal Case No. TCS-2153 convicting the appellant Jesus G.
Retubado of murder, sentencing him to reclusion perpetua, and directing him to
indemnify the heirs of the victim Emmanuel Caon the sum of P50,000.00.

The appellant was indicted for murder in an Information, the accusatory portion of
which reads:

That on the 5th day of November, 1993 at 9:30 oclock in the evening, more or less,
at Barangay I Poblacion, Municipality of Tuburan, Province of Cebu, Philippines, and
20

within the jurisdiction of this Honorable Court, the above-named accused, with
deliberate intent to kill, by means of treachery, evident premeditation and taking
advantage of superior strength, did then and there willfully, unlawfully and feloniously
attack, assault and shoot Emmanuel Caon with the use of unlicensed revolver of
unknown caliber, thereby hitting the latter on his forehead, resulting to the
instantaneous death of the said victim.

CONTRARY TO LAW.[2]

Shortly before November 5, 1993, someone played a joke on Edwin Retubado, the
appellants younger brother who was mentally ill. Someone inserted a lighted
firecracker in a cigarette pack and gave it to Edwin. He brought the cigarette home
and placed it on the dining table as he was having dinner with his father.
Momentarily, the firecracker exploded. The suspect was Emmanuel Caon, Jr., The
Caons and the appellant were neighbors. The matter was brought to the attention
of the barangay captain who conducted an investigation. It turned out that
Emmanuel Caon, Jr. was not the culprit. The barangay captain considered the
matter closed. The appellant, however, was bent on confronting Emmanuel Caon,
Jr.

On November 5, 1993, at about 9:00 p.m., 50-year-old Emmanuel Caon, Sr., a
pedicab driver called it a day and decided to go home after a days work. He drove
his pedicab and stopped at the junction of Rizal and Gallardo Streets, at the
poblacion of Tuburan. The appellant, who was conversing with Marcial Lucio saw
him. Noy, why is [it] your son did something to my brother? Emmanuel ignored the
appellant. The appellant was incensed and ran after Emmanuel. He overtook
Emmanuel, grabbed and pushed the pedicab which nearly fell into a canal.
Emmanuel again ignored the appellant and pedaled on until he reached his house.
His wife, Norberta Caon was in the balcony of their house, above the porch waiting
for him to arrive. Emmanuel, Jr., meanwhile, was already asleep. Undeterred, the
appellant continued following Emmanuel.

Shortly after Emmanuel had entered his house, the appellant arrived and tarried at
the porch. Emmanuel suddenly opened the door and demanded to know why he was
being followed. The appellant told Emmanuel that he just wanted to talk to
Emmanuel, Jr., but Emmanuel told the appellant that his son was already asleep.
Norberta went down from the balcony and placed her hand on her husbands
shoulder to pacify him.

The appellant forthwith pulled out a handgun from under his T-shirt and shot
Emmanuel on the forehead. The latter fell to the floor as the appellant walked away
from the scene. Norberta shouted for help. The neighbors, her daughter, and her
son-in-law arrived. They brought Emmanuel to the Tuburan District Hospital, but the
victim died shortly thereafter. Dr. Ivar G. Arellano, the Municipal Health Officer,
performed an autopsy on the cadaver of Emmanuel and prepared a report thereon
with the following findings:

Examination in Detail:

On detailed examination, a gunshot wound was found at the left side of the forehead,
measuring 1 cm. in diameter. At the skin surrounding this wound was found powder
burns which measured 3 cms. in diameter as the skin had been blackened and
burned by powder of the bullet. The underlying frontal bone was fractured and
depressed. The underlying meninges of the brain as well as the frontal area of the
brain was traumatized and injured. Blood and cerebrospinal fluid were leaking from
this wound. The edges of this bullet wound was inverted thus this was the gunshot
entry wound. The wound was found to be circular in shape. The exit wound was
found at the left parietal bone measuring 1.2 cm. in size or diameter for this wound
communicated with the entry wound of the left side of the forehead. The connection
from the wound of entry to the exit wound measured 8 cms. The parietal bone was
fractured and was depressed and the parietal part of the brain and meninges was
traumatized. Blood and cerebrospinal fluid as well as brain tissues leaked out from
this wound.

Possible cause of death:
1. Gunshot wound at the head (left side) with injury to brain and meninges
2. Hypovolemic shock secondary to loss of blood (Severe loss of blood)

(Sgd.) Ivar G. Arellano
MUN. Health Officer[3]

Dr. Charity Patalinghug and the victims daughter Loreta C. Claro signed Emmanuels
Certificate of Death.[4] The appellant surrendered to the police authorities but failed
to surrender the firearm he used to kill the victim. Forensic Officer Myrna P. Areola of
the PNP Regional Office subjected the appellant to paraffin tests. The Chemical
Analysis of the paraffin casts gave the following results:

FINDINGS:

21

...

1. POSITIVE for the presence of gunpowder residue on his left hand cast.

2. NEGATIVE for the presence of gunpowder residue on his right hand cast.[5]

Norberta also testified on the expenses incurred by her family due to her husbands
death. No documentary evidence was, however, offered to support the same. She
declared that she felt sad and lonely as a result of her husband's death.

The Case for the Appellant

The appellant admitted shooting the victim but claimed that he was merely
performing a lawful act with due care; hence, cannot be held criminally liable for the
victims death. He testified that when he insisted that Emmanuel wake up his son,
Emmanuel went to his room and emerged therefrom holding a handgun with his right
hand. Emmanuels trigger finger was outside the trigger guard, and he held the
firearm with the muzzle facing downward. Fearing that he would be shot, the
appellant took hold of Emmanuels right hand with his left, and pulled the gun
towards Emmanuels stomach. The appellant grabbed Emmanuels free hand with
his right hand, and the old man almost fell on his knees to the ground. Emmanuel
still resisted. The appellant pulled the gun to the level of Emmanuels forehead, and
the gun suddenly went off. The bullet hit Emmanuels forehead. Norberta fled from
the house. For his part, the appellant rushed to his house to change clothes. He
placed the gun on the dining table before entering his bedroom. When he went back
to the dining room to get the gun, his younger sister, Enrica told him that their brother
Edwin had taken the gun. He found Edwin outside their house near the church, and
the latter told the appellant that he threw the gun into the sea. When the appellant
asked his brother to show him where he threw the gun, Edwin refused to do so.

Marcial Lucio corroborated the appellants testimony. He testified that he was
talking with the appellant at around 9:00 p.m. at the junction of Rizal and Gallardo
streets when the victim Emmanuel passed by in his pedicab. When the appellant
called the victim, the latter ignored the call, prompting the appellant to chase the
victim, and eventually push the pedicab into a canal.

The appellants father, Iigo Retubado, testified that on the evening of November 5,
1993, he was in their house with Edwin, his son who was mentally-ill. It was already
late when the appellant arrived. The appellant was disheveled, and laid down the
gun he was carrying on the table. The appellant told his father that he would
surrender to the police because he had shot somebody.[6] The appellant thereafter
went to his room to change clothes while Iigo went to the comfort room to answer
the call of nature. When he was done, he saw the appellant frantically looking for the
gun. As Edwin was also nowhere to be found, Iigo concluded that Edwin might
have taken the gun with him. He also testified on Edwins mental imbalance and on
the latters confinement at the Psychiatric Department of the Don Vicente Sotto
Memorial Medical Center in Cebu City sometime in 1991.[7]

On November 6, 1993, the appellant surrendered to the police authorities. Although
he was required by the municipal trial court to file his counter-affidavit, the appellant
refused to do so.

After due proceedings, the trial court rendered judgment in Criminal Case No. TCS-
2153, convicting the appellant of murder, and sentencing him to reclusion perpetua.
The decretal portion of the decision reads:

WHEREFORE, in view of the foregoing, this Court finds accused GUILTY beyond
reasonable doubt of the crime of Murder under Art. 248 R.P.C. and sentences the
accused to the penalty of Reclusion Perpetua and to indemnify the heirs of the
deceased the sum of P50,000.00.

However, accused is given full credit of his preventive imprisonment.

SO ORDERED.[8]

On appeal, the appellant assails the decision of the trial court contending that:

I

First Assignment of Error

THE LOWER COURT ERRED IN NOT FINDING THE DEATH OF THE DECEASED
AS CAUSED BY MERE ACCIDENT WITHOUT FAULT OR INTENTION OF
CAUSING IT WHILE THE ACCUSED WAS PERFORMING A LAWFUL ACT WITH
DUE CARE OR, IN THE ALTERNATIVE, IT ERRED IN NOT CONVICTING HIM
JUST MERELY OF HOMICIDE INSTEAD OF MURDER.

II

Second Assignment of Error
22


THE LOWER COURT ERRED IN DISREGARDING THE VERY RELEVANT AND
MATERIAL CONTENTS OF EXHIBIT B OF THE PROSECUTION --- CHEMISTRY
REPORT, PARAFFIN TEST -- WHICH ARE FAVORABLE TO THE ACCUSED.

III

Third Assignment of Error

THE LOWER COURT ERRED IN CONCLUDING THAT THE TESTIMONY OF THE
SOLE WITNESS OF THE PROSECUTION IS SATISFACTORY AND SUFFICIENT
TO CONVICT THE ACCUSED OF MURDER.

IV

Fourth Assignment of Error

THE LOWER COURT ERRED IN FAILING TO CONSIDER THAT THE ACCUSED
HAS EXPLAINED WHY HE FAILED TO SURRENDER THE GUN WHICH HE GOT
FROM THE DECEASED.[9]

The appellant asserts that he was merely performing a lawful act of defending himself
when he grabbed the victims hand which held the gun. The gun accidentally fired
and the bullet hit the victims forehead. The accident was not the appellants fault.
The appellant asserts that when he wrestled with the victim for the possession of the
gun, he was merely defending himself. He contends that he had no intention of
killing the victim, as he merely wanted to talk to his son. If he had wanted to kill the
victim, he could have easily done so when he met the latter for the first time that
fateful night of November 5, 1993. Moreover, the appellant submits, he did not
commit any felony; hence, under paragraph 4 of Article 12 of the Revised Penal
Code, he is not criminally liable for the death of the victim.[10] In the alternative, the
appellant asserts that he should be convicted only of the crime of homicide under
Article 249 of the Revised Penal Code, since the qualifying circumstance of treachery
is wanting. He and the victim had a heated exchange of words before they grappled
for the possession of the gun. Such heated discussion had already forewarned the
victim and placed him on guard; thus, treachery cannot be legally considered.

The contention of the appellant has no merit. Article 11, paragraph 4 of the Revised
Penal Code reads:

ART. 11. Justifying circumstances.

...

4) Any person who, in order to avoid an evil or injury, does an act which causes
damage to another provided that the following requisites are present:

First. That the evil sought to be avoided actually exists;

Second. That the injury feared be greater than that done to avoid it;

Third. That there be no other practical and less harmful means of preventing it.

The provision was taken from Article 8, paragraph 7 of the Spanish Penal Code,
which reads:

ARTICULO 8.

7. El que para evitar un mal ejecuta un hecho que produzca da en la propiedad
ajena, siempre que concurran las circumstancias siguientes:

Primera. Realidad del mal que se trata de evitar.
Segunda. Quesea mayor que el causado para evitarlo.
Tercera. Que no haya otro medio practicable y menos
perjudicial para impedirlo.

Article 11, paragraph 4 of the Revised Penal Code is not an accurate translation of
the Spanish Penal Code. The phrase an injury does not appear in the first
paragraph in the Spanish Penal Code. Neither does the word injury appear in the
second subparagraph of the Spanish Penal Code.

The justification is what is referred to in the Spanish Penal Code as el estado de
necessidad:

Es una situacion de peligro, actual o immediato para bienes, juridicamente
protegides que solo puede ser evitada mediante, la lesion de bienes, tambien
juridicamento protegidos, pertenecientes a otra personas.[11]

The phrase state of necessity is of German origin. Countries which have embraced
the classical theory of criminal law, like Italy, do not use the phrase. The justification
23

refers to a situation of grave peril (un mal), actual or imminent (actual o imminente).
The word propiedad covers diverse juridical rights (bienes juridicos) such as right to
life, honor, the integrity of ones body, and property (la vida, la integridad corporal, el
pudor, el honor, bienes patrimoniales) belonging to another.[12]

It is indispensable that the state of necessity must not be brought about by the
intentional provocation of the party invoking the same.[13]

A number of legal scholars in Europe are of the view that the act of the accused in a
state of necessity is justifying circumstance; hence, lawful. Under Article 12,
paragraph 4 of the Revised Penal Code, a state of necessity is a justifying
circumstance. The accused does not commit a crime in legal contemplation; hence,
is not criminally and civilly liable. Civil liability is borne by the person/persons
benefited by the act of the accused. Crimes cannot exist unless the will concurs with
the act, and when, says Blackstone, a man intending to do a lawful act, does that
which is unlawful, the deed and the will act separately and there is no conjunction
between them which is necessary to constitute a crime.[14] Others are of the view
that such act is a cause for exclusion from being meted a penalty; still others view
such act as a case of excluding the accused from culpability.

According to Groizard, rights may be prejudiced by three general classes of acts,
namely, (a) malicious and intentional acts; (b) negligent or reckless acts; (c) acts
which are neither malicious, imprudent nor negligent but nevertheless cause
damages.

Nuestra propiedad puede ser perjudicada, puede sufrir detrimentos por tres clases
de hechos. Por actos maliciosos, intencionales, encaminados directamente a
causarnos dao; por actos que, sin llevar ese malicioso fin y por falta de prudencia,
por culpa o temeridad del que los ejecuta, den ese mismo resultado, y por actos que,
sin concurrir en su ejecucion un proposito doloso, ni culpa, ni negligencia sin
embargo produzcan menocabo en nuestros bienes.[15]

The defense of a state of necessity is a justifying circumstance under Article 12,
paragraph 4 of the Revised Penal Code. It is an affirmative defense that must be
proved by the accused with clear and convincing evidence. By admitting causing the
injuries and killing the victim, the accused must rely on the strength of his own
evidence and not on the weakness of the evidence of the prosecution because if
such evidence is weak but the accused fails to prove his defense, the evidence of the
prosecution can no longer be disbelieved. Whether the accused acted under a state
of necessity is a question of fact, which is addressed to the sound discretion of the
trial court. The legal aphorism is that the findings of facts by the trial court, its
calibration of the testimony of the witnesses of the parties and of the probative weight
thereof as well as its conclusions based on its own findings are accorded by the
appellate court high respect, if not conclusive effect, unless the trial court ignored,
misconstrued or misapplied cogent facts and circumstances of substance which, if
considered, will change the outcome of the case. We have meticulously reviewed
the records and find no basis to deviate from the findings of the trial court that the
appellant was the provocateur, the unlawful aggressor and the author of a deliberate
and malicious act of shooting the victim at close range on the forehead.

First: When Norberta heard her husband and the appellant arguing with each other
in the porch of their house, she went down from the balcony towards her husband
and placed her hand on the latters shoulders. She was shocked when the appellant
pulled out his handgun and deliberately shot the victim on the forehead, thus:

Q Now, you said that when your husband was about to go out again in order to see
his trisicad and as he opened the door he saw Jesus Retubado near the door. What
happened after that?

A He asked Jesus Retubado why Jesus Retubado chased him when he was
driving his trisicad.

Q Now, as your husband was asking this question to the accused Jesus Retubado
what was the distance to your husband at the time?

A Just very near to him.

Q And you to the accused at that very moment what was more or less your
distance?

A About an armslength.

Q When your husband asked Jesus Retubado why the latter chased him while your
husband was driving his trisicad what was the answer of Jesus Retubado, if any?

A My husband asked the accused Jesus Retubado what is his grudge to him and
Jesus Retubado answered that it is not you who has a grudge to me but it is your
son.

Q When Jesus Retubado uttered that statement what transpired after that?
24


A He immediately pointed his firearm that he was bringing (sic) to my husband
Emmanuel Caon.

Q By the way considering that you were just near to both your husband and the
accused where did that firearm that you said was pointed by the accused to your
husband come (sic) from?

A While the accused was standing in front of our door his hands were placed
inside his T-shirt covered by his T-shirt.

Atty. Pepito:

We move to strike out the answer. It is not responsive, Your Honor. The
question was, where did it come from?

COURT:

Let the answer stay in the record but let the witness answer again.

A From the hands of accused Jessie.

Fiscal Pansoy:

Q Now, just a while ago you were making a motion using your hand placed inside
your T-shirt. Now, when you saw the firearm for the first time where did you saw (sic)
the firearm for the first time where did the firearm come from as you saw it from the
hands of the accused?

Atty. Pepito:

Already answered. It came from the hands of the accused.

Fiscal Pansoy:

I will reform.

Q Before you saw the firearm in the hands of the accused where did the firearm
come from?

Atty. Pepito:

She is incompetent. We object.

COURT:

Reform the question.

Fiscal Pansoy:

Q Now, Mrs. Witness, before this question was asked to you as to where the
firearm came from you were making a motion by placing your hands inside your shirt
when you were only asked as to where the firearm came from?

A That was what the position of the accused when he was standing in front of our
door and I do not know what was inside his T-shirt. I only know that he was carrying
a firearm when it fired.

Q Now, when the accused pointed the firearm to your husband and fired the same
more or less what was the distance between the accused and your husband at the
very precise time when the firing was made?

A It was just very near because his hand did not bend. (Witness demonstrating by
pointing to her forehead).

Q Now, more or less, describe to the Court the approximate distance between the
firearm that was pointed to your husband and the forehead of your husband at the
time when the firing was done?

A It touched the forehead of my husband.

Q That was the very time that you heard the gunburst?

A Yes.

Q When the accused fired the firearm that was carried by him, what happened to
your husband?

A My husband fell down backward to the ground inside the house.

25

Q By the way, what was the flooring of your house where your husband fell
backward to the ground?

A Cemented.

Q By the way considering that you were just very near to where the incident
occurred can you describe the length of the firearm that was used by the accused in
firing your husband?

A It was a short firearm about 6 inches.

Q Now, as your husband fell down to the floor where did the accused proceed and
what did the accused do?

A He was just casually walking away as if nothing had happened.

Q Now, what did you do to your husband, if any, after he fell down to the floor?

A I have done nothing because I was somewhat shocked. I could not move
because I was shocked.[16]

Second: After shooting the victim, the appellant fled from the situs criminis. He
surrendered to the police authorities only on November 6, 1993, but failed to
surrender the gun he used to kill the victim. The appellants claim that he placed the
gun on the dining table before entering his bedroom to change his clothes is
incredible. There is no evidence that the appellant informed the police authorities
that he killed the victim in a state of necessity and that his brother, Edwin, threw the
gun into the sea. The appellant never presented the police officer to whom he
confessed that he killed the victim in a state of necessity.

Third: The appellant had the motive to shoot and kill the victim. The victim ignored
the appellant as the latter talked to him at the junction of Rizal and Gallardo streets,
in the poblacion of Tuburan. The appellant was incensed at the effrontery of the
victim, a mere pedicab driver. The appellant followed the victim to his house where
the appellant again confronted him. The appellant insisted on talking with the victims
son but the victim refused to wake up the latter. The appellant, exasperated at the
victims intransigence, pulled out a gun from under his shirt and shot the victim on the
forehead. It was impossible for the victim to survive. With the appellants admission
that he shot the victim, the matter on whether he used his right or left hand to shoot
the latter is inconsequential.

We agree with the contention of the Solicitor General that there is no treachery in the
present case to qualify the crime to murder. To appreciate treachery, two (2)
conditions must be present, namely, (a) the employment of the means of execution
that give the person attacked no opportunity to defend himself or to retaliate, and (b)
the means of execution were deliberately or consciously adopted.[17] The
prosecution failed to adduce an iota of evidence to support the confluence of the
abovementioned conditions. Thus, the appellant is guilty only of homicide under
Article 249 of the Revised Penal Code. Although the Information alleges that the
appellant used an unlicensed firearm to shoot the victim, the prosecution failed to
prove that the appellant had no license to possess the same. Hence, the
aggravating circumstance of the use of an unlicensed firearm to commit homicide
should not be appreciated against the appellant.

The appellant is entitled to the mitigating circumstance of voluntary surrender. He
turned himself in to the police authorities prior to the issuance of any warrant for his
arrest.

The trial court awarded P50,000.00 as civil indemnity[18] to the heirs of the
deceased. In addition, the heirs are entitled to moral damages in the amount of
P50,000.00[19] and the temperate damages in the amount of P25,000.00 since no
sufficient proof of actual damages was offered.[20]

WHEREFORE, the appealed judgment is AFFIRMED with MODIFICATION. The
appellant Jesus G. Retubado alias Jessie is found GUILTY beyond reasonable
doubt of homicide defined in and penalized by Article 249 of the Revised Penal Code
and is hereby sentenced to suffer an indeterminate sentence of ten (10) years of
prision mayor, in its medium period, as minimum, to fifteen (15) years of reclusion
temporal, in its medium period, as maximum, and to pay the heirs of the victim,
Emmanuel Caon, P50,000.00 as civil indemnity; P50,000.00 as moral damages;
and P25,000.00 as temperate damages.

SO ORDERED.

Puno, (Chairman), Quisumbing, Austria-Martinez, and Tinga, JJ., concur.





26






NATIONAL POWER G.R. No. 168732
CORPORATION,
Petitioner,
Present:
-versus-

LUCMAN G. IBRAHIM, OMAR PUNO, C.J., Chairperson,
G. MARUHOM, ELIAS G. SANDOVAL-GUTIERREZ,*
MARUHOM, BUCAY G. CORONA,
MARUHOM, FAROUK G. AZCUNA, and
MARUHOM, HIDJARA G. GARCIA, JJ.
MARUHOM, ROCANIA G.
MARUHOM, POTRISAM G.
MARUHOM, LUMBA G. Promulgated:
MARUHOM, SINAB G.
MARUHOM, ACMAD G.
MARUHOM, SOLAYMAN G. June 29, 2007
MARUHOM, MOHAMAD M.
IBRAHIM, and CAIRONESA M.
IBRAHIM,
Respondents.

X----------------------------------------------------------------------------------------X

DECISION

AZCUNA, J.:


This is a petition for review on certiorari under Rule 45 of the Rules of Court seeking
to annul the Decision[1] dated June 8, 2005 rendered by the Court of Appeals (CA) in
C.A.-G.R. CV No. 57792.
The facts are as follows:


On November 23, 1994, respondent Lucman G. Ibrahim, in his personal capacity and
in behalf of 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 Caironesa M.
Ibrahim, instituted an action against petitioner National Power Corporation
(NAPOCOR) for recovery of possession of land and damages before the Regional
Trial Court (RTC) of Lanao del Sur.

In their complaint, Ibrahim and his co-heirs claimed that they were owners of several
parcels of land described in Survey Plan FP (VII-5) 2278 consisting of 70,000 square
meters, divided into three (3) lots, i.e. Lots 1, 2, and 3 consisting of 31,894, 14,915,
and 23,191 square meters each respectively. Sometime in 1978, NAPOCOR,
through alleged stealth and without respondents knowledge and prior consent, took
possession of the sub-terrain area of their lands and constructed therein
underground tunnels. The existence of the tunnels was only discovered sometime in
July 1992 by respondents and then later confirmed on November 13, 1992 by
NAPOCOR itself through a memorandum issued by the latters Acting Assistant
Project Manager. The tunnels were apparently being used by NAPOCOR in
siphoning the water of Lake Lanao and in the operation of NAPOCORs Agus II, III,
IV, V, VI, VII projects located in Saguiran, Lanao del Sur; Nangca and Balo-i in Lanao
del Norte; and Ditucalan and Fuentes in Iligan City.

On September 19, 1992, respondent Omar G. Maruhom requested the Marawi City
Water District for a permit to construct and/or install a motorized deep well in Lot 3
located in Saduc, Marawi City but his request was turned down because the
construction of the deep well would cause danger to lives and property. On October
7, 1992, respondents demanded that NAPOCOR pay damages and vacate the sub-
terrain portion of their lands but the latter refused to vacate much less pay damages.
Respondents further averred that the construction of the underground tunnels has
endangered their lives and properties as Marawi City lies in an area of local volcanic
and tectonic activity. Further, these illegally constructed tunnels caused them
sleepless nights, serious anxiety and shock thereby entitling them to recover moral
damages and that by way of example for the public good, NAPOCOR must be held
liable for exemplary damages.

Disputing respondents claim, NAPOCOR filed an answer with counterclaim
denying the material allegations of the complaint and interposing affirmative and
special defenses, namely that (1) there is a failure to state a cause of action since
respondents seek possession of the sub-terrain portion when they were never in
27

possession of the same, (2) respondents have no cause of action because they
failed to show proof that they were the owners of the property, and (3) the tunnels are
a government project for the benefit of all and all private lands are subject to such
easement as may be necessary for the same.[2]

On August 7, 1996, the RTC rendered a Decision, the decretal portion of which
reads as follows:

WHEREFORE, judgment is hereby rendered:

1. Denying plaintiffs [private respondents] prayer for defendant [petitioner]
National Power Corporation to dismantle the underground tunnels constructed
between the lands of plaintiffs in Lots 1, 2, and 3 of Survey Plan FP (VII-5) 2278;

2. Ordering defendant to pay to plaintiffs the fair market value of said
70,000 square meters of land covering Lots 1, 2, and 3 as described in Survey Plan
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 defendant to pay plaintiffs 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 defendant to pay plaintiffs the sum of P200,000.00 as moral
damages; and

5. Ordering defendant to pay the further sum of P200,000.00 as attorneys
fees and the costs.

SO ORDERED.[3]


On August 15, 1996, Ibrahim, joined by his co-heirs, filed an Urgent Motion for
Execution of Judgment Pending Appeal. On the other hand, NAPOCOR filed a
Notice of Appeal by registered mail on August 19, 1996. Thereafter, NAPOCOR filed
a vigorous opposition to the motion for execution of judgment pending appeal with a
motion for reconsideration of the Decision which it had received on August 9, 1996.

On August 26, 1996, NAPOCOR filed a Manifestation and Motion withdrawing its
Notice of Appeal purposely 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 NAPOCORs motion for reconsideration, which Order was received by
NAPOCOR on September 6, 1996.

On September 9, 1996, NAPOCOR filed its Notice of Appeal by registered mail which
was denied by the RTC on the ground of having been filed out of time. Meanwhile,
the Decision of the RTC was executed pending appeal and funds of NAPOCOR were
garnished by respondents Ibrahim and his co-heirs.

On October 4, 1996, a Petition for Relief from Judgment was filed by 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 asserting as follows:

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 attorneys
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 plaintiffs represented not only rentals, damages and attorneys fees
but the greatest portion of which was payment of just compensation which in effect
would make the defendant NPC the owner of the parcels of land involved in the case;

3) when they learned of the nature of the judgment, the period of appeal
has 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 in so far as the part of the decision decreeing just compensation for
petitioners 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.[4]
28



The RTC granted the petition and rendered a modified judgment dated September 8,
1997, thus:

WHEREFORE, a modified judgment is hereby rendered:


1) Reducing the judgment award of plaintiffs for the fair market value of
P48,005,000.00 by 9,526,000.00 or for a difference by P38,479,000.00 and by the
further sum of P33,603,500.00 subject of the execution pending appeal leaving a
difference of 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.

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

3) Ordering defendant embodied in the August 7, 1996 decision to pay
plaintiffs the sum of P200,000.00 as moral damages; and further sum of P200,000.00
as attorneys fees and costs.

SO ORDERED.[5]


Subsequently, both respondent Ibrahim and NAPOCOR appealed to the CA.

In the Decision dated June 8, 2005, the CA set aside the modified judgment and
reinstated the original Decision dated August 7, 1996, amending it further by deleting
the award of moral damages and reducing the amount of rentals and attorneys 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 attorneys fees are REDUCED to P6,888,757.40 and
P50,000.00, respectively.

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 Plaintiff-
Appellant 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 a lien on the judgment.

SO ORDERED.[6]


Hence, this petition ascribing the following errors to the CA:


(a) RESPONDENTS WERE NOT DENIED THE BENEFICIAL USE OF
THEIR SUBJECT PROPERTIES TO ENTITLE THEM TO JUST COMPENSATION
BY WAY OF DAMAGES;

(b) ASSUMING THAT RESPONDENTS ARE ENTITLED TO JUST
COMPENSATION BY WAY OF DAMAGES, NO EVIDENCE WAS PRESENTED
ANENT THE VALUATION OF RESPONDENTS PROPERTY AT THE TIME OF ITS
TAKING IN THE YEAR 1978 TO JUSTIFY THE AWARD OF ONE THOUSAND
SQUARE METERS (P1000.00/SQ. M.) EVEN AS PAYMENT OF BACK RENTALS IS
ITSELF IMPROPER.

This case revolves around the propriety of paying just compensation to
respondents, and, by extension, the basis for computing the same. The threshold
issue of whether respondents are entitled to just compensation hinges upon who
owns the sub-terrain area occupied by petitioner.

Petitioner maintains that the sub-terrain portion where the underground tunnels were
constructed does not belong to respondents because, even conceding the fact that
respondents owned the property, their right to the subsoil of the same does not
extend beyond what is necessary to enable them to obtain all the utility and
convenience that such property can normally give. In any case, petitioner asserts
that respondents were still able to use the subject property even with the existence of
the tunnels, citing as an example the fact that one of the respondents, Omar G.
Maruhom, had established his residence on a part of the property. Petitioner
concludes that the underground tunnels 115 meters below respondents property
29

could not have caused damage or prejudice to respondents and their claim to this
effect was, therefore, purely conjectural and speculative.[7]

The contention lacks merit.

Generally, in an appeal by certiorari under Rule 45 of the Rules of Court, the
Court does not pass upon questions of fact. Absent any showing that the trial and
appellate courts gravely abused their discretion, the Court will not examine the
evidence introduced by the parties below to determine if they correctly assessed and
evaluated the evidence on record.[8] The jurisdiction of the Court in cases brought to
it from the CA is limited to reviewing and revising the errors of law imputed to it, its
findings of fact being as a rule conclusive and binding on the Court.

In the present case, petitioner failed to point to any evidence demonstrating grave
abuse of discretion on the part of the CA or to any other circumstances which would
call for the application of the exceptions to the above rule. Consequently, the CAs
findings which upheld those of the trial court that respondents owned and possessed
the property and that its substrata was possessed by petitioner since 1978 for the
underground tunnels, cannot be disturbed. Moreover, the Court sustains the finding
of the lower courts that the sub-terrain portion of the property similarly belongs to
respondents. This conclusion is drawn from Article 437 of the Civil Code which
provides:

ART. 437. The owner of a parcel of land is the owner of its surface and of
everything under it, and he can construct thereon any works or make any plantations
and excavations which he may deem proper, without detriment to servitudes and
subject to special laws and ordinances. He cannot complain of the reasonable
requirements of aerial navigation.

Thus, the ownership of land extends to the surface as well as to the subsoil
under it. In Republic of the Philippines v. Court of Appeals,[9] this principle was
applied to show that rights over lands are indivisible and, consequently, require a
definitive and categorical classification, thus:

The Court of Appeals justified this by saying there is no conflict of interest
between the owners of the surface rights and the owners of the sub-surface rights.
This is rather strange doctrine, for it is a well-known principle that the owner of a
piece of land has rights not only to its surface but also to everything underneath and
the airspace above it up to a reasonable height. Under the aforesaid ruling, the land
is classified as mineral underneath and agricultural on the surface, subject to
separate claims of title. This is also difficult to understand, especially in its practical
application.

Under the theory of the respondent court, the surface owner will be planting on the
land while the mining locator will be boring tunnels underneath. The farmer cannot
dig a well because he may interfere with the mining operations below and the miner
cannot blast a tunnel lest he destroy the crops above. How deep can the farmer, and
how high can the miner go without encroaching on each others rights? Where is the
dividing line between the surface and the sub-surface rights?

The Court feels that the rights over the land are indivisible and that the land itself
cannot be half agricultural and half mineral. The classification must be categorical;
the land must be either completely mineral or completely agricultural.


Registered landowners may even be ousted of ownership and possession of their
properties in the event the latter are reclassified as mineral lands because real
properties are characteristically indivisible. For the loss sustained by such owners,
they are entitled to just compensation under the Mining Laws or in appropriate
expropriation proceedings.[10]

Moreover, petitioners argument that the landowners right extends to the sub-soil
insofar as necessary for their practical interests serves only to further weaken its
case. The theory would limit the right to the sub-soil upon the economic utility which
such area offers to the surface owners. Presumably, the landowners right extends to
such height or depth where it is possible for them to obtain some benefit or
enjoyment, and it is extinguished beyond such limit as there would be no more
interest protected by law.[11]

In this regard, the trial court found that respondents could have dug upon their
property motorized deep wells but were prevented from doing so by the authorities
precisely because of the construction and existence of the tunnels underneath the
surface of their property. Respondents, therefore, still had a legal interest in the sub-
terrain portion insofar as they could have excavated the same for the construction of
the deep well. The fact that they could not was appreciated by the RTC as proof that
the tunnels interfered with respondents enjoyment of their property and deprived
them of its full use and enjoyment, thus:

Has it deprived the plaintiffs of the use of their lands when from the evidence they
have already existing residential houses over said tunnels and it was not shown that
30

the tunnels either destroyed said houses or disturb[ed] the possession thereof by
plaintiffs? From the evidence, an affirmative answer seems to be in order. The
plaintiffs and [their] co-heirs discovered [these] big underground tunnels in 1992. This
was confirmed by the defendant on November 13, 1992 by the Acting Assistant
Project Manager, Agus 1 Hydro Electric Project (Exh. K). On September 16, 1992,
Atty. Omar Maruhom (co-heir) requested the Marawi City Water District for permit to
construct a motorized deep well over Lot 3 for his residential house (Exh. Q). He was
refused the permit because the construction of the deep well as (sic) the parcels of
land will cause danger to lives and property. He was informed that beneath your
lands are constructed the Napocor underground tunnel in connection with Agua
Hydroelectric plant (Exh. Q-2). There in fact exists ample evidence that this
construction of the tunnel without the prior consent of plaintiffs beneath the latters
property endangered the lives and properties of said plaintiffs. It has been proved
indubitably that Marawi City lies in an area of local volcanic and tectonic activity. Lake
Lanao has been formed by extensive earth movements and is considered to be a
drowned basin of volcano/tectonic origin. In Marawi City, there are a number of
former volcanoes and an extensive amount of faulting. Some of these faults are still
moving. (Feasibility Report on Marawi City Water District by Kampsa-Kruger,
Consulting Engineers, Architects and Economists, Exh. R). Moreover, it has been
shown that the underground tunnels [have] deprived the plaintiffs of the lawful use of
the land and considerably reduced its value. On March 6, 1995, plaintiffs applied for
a two-million peso loan with the Amanah Islamic Bank for the expansion of the
operation of the Ameer Construction and Integrated Services to be secured by said
land (Exh. N), but the application was disapproved by the bank in its letter of April 25,
1995 (Exh. O) stating that:

Apropos to this, we regret to inform you that we cannot consider your loan
application due to the following reasons, to wit:

That per my actual ocular inspection and verification, subject property
offered as collateral has an existing underground tunnel by the NPC for the Agus I
Project, which tunnel is traversing underneath your property, hence, an
encumbrance. As a matter of bank policy, property with an existing encumbrance
cannot be considered neither accepted as collateral for a loan.

All the foregoing evidence and findings convince this Court that preponderantly
plaintiffs have established the condemnation of their land covering an area of 48,005
sq. meters located at Saduc, Marawi City by the defendant National Power
Corporation without even the benefit of expropriation proceedings or the payment of
any just compensation and/or reasonable monthly rental since 1978.[12]


In the past, the Court has held that if the government takes property without
expropriation and devotes the property to public use, after many years, the property
owner may demand payment of just compensation in the event restoration of
possession is neither convenient nor feasible.[13] This is in accordance with the
principle that persons shall not be deprived of their property except by competent
authority and for public use and always upon payment of just compensation.[14]

Petitioner contends that the underground tunnels in this case constitute an easement
upon the property of respondents which does not involve any loss of title or
possession. The manner in which the easement was created by petitioner, however,
violates the due process rights of respondents as it was without notice and indemnity
to them and did not go through proper expropriation proceedings. Petitioner could
have, at any time, validly exercised the power of eminent domain to acquire the
easement over respondents property as this power encompasses not only the taking
or appropriation of title to and possession of the expropriated property but likewise
covers even the imposition of a mere burden upon the owner of the condemned
property.[15] Significantly, though, landowners cannot be deprived of their right over
their land until expropriation proceedings are instituted in court. The court must then
see to it that the taking is for public use, that there is payment of just compensation
and that there is due process of law.[16]

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 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.[17] Notwithstanding the fact that petitioner only occupies the sub-
terrain portion, it is liable to pay not merely an easement fee 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.[18]

The entitlement of respondents to just compensation having been settled, the issue
now is on the manner of computing the same. In this regard, petitioner claims that the
basis for the computation of the just compensation should be the value of the
31

property at the time it was taken in 1978. Petitioner also impugns the reliance made
by the CA upon National Power Corporation v. Court of Appeals and Macapanton
Mangondato[19] as the basis for computing the amount of just compensation in this
action. The CA found that the award of damages is not excessive because the
P1000 per square meter as the fair market value was sustained in a case involving a
lot adjoining the property in question which case involved an expropriation by
[petitioner] of portion of Lot 1 of the subdivision plan (LRC) PSD 116159 which is
adjacent to Lots 2 and 3 of the same subdivision plan which is the subject of the
instant controversy.[20]

Just compensation has been understood to be the just and complete equivalent of
the loss[21] and is ordinarily determined by referring to the value of the land and its
character at the time it was taken by the expropriating authority.[22] There is a
taking in this sense when the owners are actually deprived or dispossessed of their
property, where there is a practical destruction or a material impairment of the value
of their property, or when they are deprived of the ordinary use thereof. There is a
taking in this context when the expropriator enters private property not only for a
momentary period but for more permanent duration, for the purpose of devoting the
property to a public use in such a manner as to oust the owner and deprive him of all
beneficial enjoyment thereof.[23] Moreover, taking of the property for purposes of
eminent domain entails that the entry into the property must be under warrant or color
of legal authority.[24]
Under the factual backdrop of this case, the last element of taking mentioned, i.e.,
that the entry into the property is under warrant or color of legal authority, is patently
lacking. Petitioner justified its nonpayment of the indemnity due respondents upon its
mistaken belief that the property formed part of the public dominion.

This situation is on all fours with that in the Mangondato case. NAPOCOR in that
case took the property of therein respondents in 1979, using it to build its Aqua I
Hydroelectric Plant Project, without paying any compensation, allegedly under the
mistaken belief that it was public land. It was only in 1990, after more than a decade
of beneficial use, that NAPOCOR recognized therein respondents ownership and
negotiated for the voluntary purchase of the property.

In Mangondato, this Court held:

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:

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. x x x (Italics supplied).

Normally, the time of the taking coincides with the filing of the complaint for
expropriation. Hence, many ruling 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 to the property, the just compensation is to be ascertained as of the time of
filing of the complaint.

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 the date of the
commencement of the expropriation proceedings.

In the old case of Provincial Government of Rizal vs. Caro de Araullo, the
Court ruled that x x x 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) from 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 it was taken, which is the true measure of the damages, or just
compensation, and would discourage the construction of important public
improvements.

In subsequent cases, 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, said, x x x 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 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 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
32

been committed is intended precisely to avoid either contingency fraught with
unfairness.

Simply stated, the exception finds the 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 in 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 owners 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 petitioners use of the land. Since the petitioner is
claiming an exception to Rule 67, Section 4, it has the burden in 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, in the following words:

A number of circumstances must be present in 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.(Italics supplied)

In this case, the petitioners 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 respondents 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.

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:

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 anothers 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 the 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, the City entered into a lease-purchase agreement
of a building constructed by the petitioners 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.
(Italics supplied)

33

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 effective
only after Agus I HE project has been placed in operation. It was only then that
petitioners intent to expropriate became manifest as private respondent disagreed
and, barely a month, filed suit.[25]


In the present case, to allow petitioner to use the date it constructed the tunnels as
the date of valuation would be grossly unfair. First, it did not enter the land under
warrant or color of legal authority or with intent to expropriate the same. In fact, it did
not bother to notify the owners and wrongly assumed it had the right to dig those
tunnels under their property. Secondly, the improvements introduced by petitioner,
namely, the tunnels, in no way contributed to an increase in the value of the land.
The trial court, therefore, as affirmed by the CA, rightly computed the valuation of the
property as of 1992, when respondents discovered the construction of the huge
underground tunnels beneath their lands and petitioner confirmed the same and
started negotiations for their purchase but no agreement could be reached.[26]

As to the amount of the valuation, the RTC and the CA both used as basis the value
of the adjacent property, Lot 1 (the property involved herein being Lots 2 and 3 of the
same subdivision plan), which was valued at P1,000 per sq. meter as of 1990, as
sustained by this Court in Mangondato, thus:
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 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-the-parties-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. To quote:

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 other being as herein shown:

x x x

x x x

Commissioner Doromals 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 latters chairman in
response to NAPOCORs general counsels query.

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.[27]

Petitioner has not shown any error on the part of the CA in reaching such a valuation.
Furthermore, these are factual matters that are not within the ambit of the present
review.

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.

SO ORDERED.



ADOLFO S. AZCUNA
Associate Justice

34



WE CONCUR:




REYNATO S. PUNO
Chairperson
Chief Justice



(On Leave)
ANGELINA SANDOVAL-GUTIERREZ RENATO C. CORONA
Associate Justice Associate Justice




CANCIO C. GARCIA
Associate Justice




CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that
the conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Courts Division.




REYNATO S. PUNO
Chief Justice






























G.R. No. L-34915 June 24, 1983

CITY GOVERNMENT OF QUEZON CITY and CITY COUNCIL OF QUEZON CITY,
petitioners,
vs.
HON. JUDGE VICENTE G. ERICTA as Judge of the Court of First Instance of Rizal,
Quezon City, Branch XVIII; HIMLAYANG PILIPINO, INC., respondents.

City Fiscal for petitioners.

Manuel Villaruel, Jr. and Feliciano Tumale for respondents.


35


GUTIERREZ, JR., J.:

This is a petition for review which seeks the reversal of the decision of the Court of
First Instance of Rizal, Branch XVIII declaring Section 9 of Ordinance No. 6118, S-
64, of the Quezon City Council null and void.

Section 9 of Ordinance No. 6118, S-64, entitled "ORDINANCE REGULATING THE
ESTABLISHMENT, MAINTENANCE AND OPERATION OF PRIVATE MEMORIAL
TYPE CEMETERY OR BURIAL GROUND WITHIN THE JURISDICTION OF
QUEZON CITY AND PROVIDING PENALTIES FOR THE VIOLATION THEREOF"
provides:

Sec. 9. At least six (6) percent of the total area of the memorial park cemetery shall
be set aside for charity burial of deceased persons who are paupers and have been
residents of Quezon City for at least 5 years prior to their death, to be determined by
competent City Authorities. The area so designated shall immediately be developed
and should be open for operation not later than six months from the date of approval
of the application.

For several years, the aforequoted section of the Ordinance was not enforced by city
authorities but seven years after the enactment of the ordinance, the Quezon City
Council passed the following resolution:

RESOLVED by the council of Quezon assembled, to request, as it does hereby
request the City Engineer, Quezon City, to stop any further selling and/or transaction
of memorial park lots in Quezon City where the owners thereof have failed to donate
the required 6% space intended for paupers burial.

Pursuant to this petition, the Quezon City Engineer notified respondent Himlayang
Pilipino, Inc. in writing that Section 9 of Ordinance No. 6118, S-64 would be enforced

Respondent Himlayang Pilipino reacted by filing with the Court of First Instance of
Rizal Branch XVIII at Quezon City, a petition for declaratory relief, prohibition and
mandamus with preliminary injunction (Sp. Proc. No. Q-16002) seeking to annul
Section 9 of the Ordinance in question The respondent alleged that the same is
contrary to the Constitution, the Quezon City Charter, the Local Autonomy Act, and
the Revised Administrative Code.

There being no issue of fact and the questions raised being purely legal both
petitioners and respondent agreed to the rendition of a judgment on the pleadings.
The respondent court, therefore, rendered the decision declaring Section 9 of
Ordinance No. 6118, S-64 null and void.

A motion for reconsideration having been denied, the City Government and City
Council filed the instant petition.

Petitioners argue that the taking of the respondent's property is a valid and
reasonable exercise of police power and that the land is taken for a public use as it is
intended for the burial ground of paupers. They further argue that the Quezon City
Council is authorized under its charter, in the exercise of local police power, " to
make such further ordinances and resolutions not repugnant to law as may be
necessary to carry into effect and discharge the powers and duties conferred by this
Act and such as it shall deem necessary and proper to provide for the health and
safety, promote the prosperity, improve the morals, peace, good order, comfort and
convenience of the city and the inhabitants thereof, and for the protection of property
therein."

On the other hand, respondent Himlayang Pilipino, Inc. contends that the taking or
confiscation of property is obvious because the questioned ordinance permanently
restricts the use of the property such that it cannot be used for any reasonable
purpose and deprives the owner of all beneficial use of his property.

The respondent also stresses that the general welfare clause is not available as a
source of power for the taking of the property in this case because it refers to "the
power of promoting the public welfare by restraining and regulating the use of liberty
and property." The respondent points out that if an owner is deprived of his property
outright under the State's police power, the property is generally not taken for public
use but is urgently and summarily destroyed in order to promote the general welfare.
The respondent cites the case of a nuisance per se or the destruction of a house to
prevent the spread of a conflagration.

We find the stand of the private respondent as well as the decision of the respondent
Judge to be well-founded. We quote with approval the lower court's ruling which
declared null and void Section 9 of the questioned city ordinance:

The issue is: Is Section 9 of the ordinance in question a valid exercise of the police
power?

36

An examination of the Charter of Quezon City (Rep. Act No. 537), does not reveal
any provision that would justify the ordinance in question except the provision
granting police power to the City. Section 9 cannot be justified under the power
granted to Quezon City to tax, fix the license fee, and regulate such other business,
trades, and occupation as may be established or practised in the City.' (Subsections
'C', Sec. 12, R.A. 537).

The power to regulate does not include the power to prohibit (People vs. Esguerra,
81 PhiL 33, Vega vs. Municipal Board of Iloilo, L-6765, May 12, 1954; 39 N.J. Law,
70, Mich. 396). A fortiori, the power to regulate does not include the power to
confiscate. The ordinance in question not only confiscates but also prohibits the
operation of a memorial park cemetery, because under Section 13 of said ordinance,
'Violation of the provision thereof is punishable with a fine and/or imprisonment and
that upon conviction thereof the permit to operate and maintain a private cemetery
shall be revoked or cancelled.' The confiscatory clause and the penal provision in
effect deter one from operating a memorial park cemetery. Neither can the ordinance
in question be justified under sub- section "t", Section 12 of Republic Act 537 which
authorizes the City Council to-

'prohibit the burial of the dead within the center of population of the city and provide
for their burial in such proper place and in such manner as the council may
determine, subject to the provisions of the general law regulating burial grounds and
cemeteries and governing funerals and disposal of the dead.' (Sub-sec. (t), Sec. 12,
Rep. Act No. 537).

There is nothing in the above provision which authorizes confiscation or as
euphemistically termed by the respondents, 'donation'

We now come to the question whether or not Section 9 of the ordinance in question
is a valid exercise of police power. The police power of Quezon City is defined in sub-
section 00, Sec. 12, Rep. Act 537 which reads as follows:

(00) To make such further ordinance and regulations not repugnant to law as may be
necessary to carry into effect and discharge the powers and duties conferred by this
act and such as it shall deem necessary and proper to provide for the health and
safety, promote, the prosperity, improve the morals, peace, good order, comfort and
convenience of the city and the inhabitants thereof, and for the protection of property
therein; and enforce obedience thereto with such lawful fines or penalties as the City
Council may prescribe under the provisions of subsection (jj) of this section.

We start the discussion with a restatement of certain basic principles. Occupying the
forefront in the bill of rights is the provision which states that 'no person shall be
deprived of life, liberty or property without due process of law' (Art. Ill, Section 1
subparagraph 1, Constitution).

On the other hand, there are three inherent powers of government by which the state
interferes with the property rights, namely-. (1) police power, (2) eminent domain, (3)
taxation. These are said to exist independently of the Constitution as necessary
attributes of sovereignty.

Police power is defined by Freund as 'the power of promoting the public welfare by
restraining and regulating the use of liberty and property' (Quoted in Political Law by
Tanada and Carreon, V-11, p. 50). It is usually exerted in order to merely regulate the
use and enjoyment of property of the owner. If he is deprived of his property outright,
it is not taken for public use but rather to destroy in order to promote the general
welfare. In police power, the owner does not recover from the government for injury
sustained in consequence thereof (12 C.J. 623). It has been said that police power is
the most essential of government powers, at times the most insistent, and always
one of the least limitable of the powers of government (Ruby vs. Provincial Board, 39
PhiL 660; Ichong vs. Hernandez, 1,7995, May 31, 1957). This power embraces the
whole system of public regulation (U.S. vs. Linsuya Fan, 10 PhiL 104). The Supreme
Court has said that police power is so far-reaching in scope that it has almost
become impossible to limit its sweep. As it derives its existence from the very
existence of the state itself, it does not need to be expressed or defined in its scope.
Being coextensive with self-preservation and survival itself, it is the most positive and
active of all governmental processes, the most essential insistent and illimitable
Especially it is so under the modern democratic framework where the demands of
society and nations have multiplied to almost unimaginable proportions. The field and
scope of police power have become almost boundless, just as the fields of public
interest and public welfare have become almost all embracing and have transcended
human foresight. Since the Courts cannot foresee the needs and demands of public
interest and welfare, they cannot delimit beforehand the extent or scope of the police
power by which and through which the state seeks to attain or achieve public interest
and welfare. (Ichong vs. Hernandez, L-7995, May 31, 1957).

The police power being the most active power of the government and the due
process clause being the broadest station on governmental power, the conflict
between this power of government and the due process clause of the Constitution is
oftentimes inevitable.

37

It will be seen from the foregoing authorities that police power is usually exercised in
the form of mere regulation or restriction in the use of liberty or property for the
promotion of the general welfare. It does not involve the taking or confiscation of
property with the exception of a few cases where there is a necessity to confiscate
private property in order to destroy it for the purpose of protecting the peace and
order and of promoting the general welfare as for instance, the confiscation of an
illegally possessed article, such as opium and firearms.

It seems to the court that Section 9 of Ordinance No. 6118, Series of 1964 of Quezon
City is not a mere police regulation but an outright confiscation. It deprives a person
of his private property without due process of law, nay, even without compensation.

In sustaining the decision of the respondent court, we are not unmindful of the heavy
burden shouldered by whoever challenges the validity of duly enacted legislation
whether national or local As early as 1913, this Court ruled in Case v. Board of
Health (24 PhiL 250) that the courts resolve every presumption in favor of validity
and, more so, where the ma corporation asserts that the ordinance was enacted to
promote the common good and general welfare.

In the leading case of Ermita-Malate Hotel and Motel Operators Association Inc. v.
City Mayor of Manila (20 SCRA 849) the Court speaking through the then Associate
Justice and now Chief Justice Enrique M. Fernando stated

Primarily what calls for a reversal of such a decision is the a of any evidence to offset
the presumption of validity that attaches to a statute or ordinance. As was expressed
categorically by Justice Malcolm 'The presumption is all in favor of validity. ... The
action of the elected representatives of the people cannot be lightly set aside. The
councilors must, in the very nature of things, be familiar with the necessities of their
particular ... municipality and with all the facts and lances which surround the subject
and necessitate action. The local legislative body, by enacting the ordinance, has in
effect given notice that the regulations are essential to the well-being of the people.
... The Judiciary should not lightly set aside legislative action when there is not a
clear invasion of personal or property rights under the guise of police regulation.
(U.S. v. Salaveria (1918], 39 Phil. 102, at p. 111. There was an affirmation of the
presumption of validity of municipal ordinance as announced in the leading Salaveria
decision in Ebona v. Daet, [1950]85 Phil. 369.)

We have likewise considered the principles earlier stated in Case v. Board of Health
supra :

... Under the provisions of municipal charters which are known as the general welfare
clauses, a city, by virtue of its police power, may adopt ordinances to the peace,
safety, health, morals and the best and highest interests of the municipality. It is a
well-settled principle, growing out of the nature of well-ordered and society, that every
holder of property, however absolute and 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. An property in the state is held subject to its general regulations, which
are necessary to the common good and general welfare. Rights of property, like all
other social and conventional rights, are subject to such 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. The state, under the police power, is possessed with plenary power to
deal with all matters relating to the general health, morals, and safety of the people,
so long as it does not contravene any positive inhibition of the organic law and
providing that such power is not exercised in such a manner as to justify the
interference of the courts to prevent positive wrong and oppression.

but find them not applicable to the facts of this case.

There is no reasonable relation between the setting aside of at least six (6) percent of
the total area of an private cemeteries for charity burial grounds of deceased paupers
and the promotion of health, morals, good order, safety, or the general welfare of the
people. The ordinance is actually a taking without compensation of a certain area
from a private cemetery to benefit paupers who are charges of the municipal
corporation. Instead of building or maintaining a public cemetery for this purpose, the
city passes the burden to private cemeteries.

The expropriation without compensation of a portion of private cemeteries is not
covered by Section 12(t) of Republic Act 537, the Revised Charter of Quezon City
which empowers the city council to prohibit the burial of the dead within the center of
population of the city and to provide for their burial in a proper place subject to the
provisions of general law regulating burial grounds and cemeteries. When the Local
Government Code, Batas Pambansa Blg. 337 provides in Section 177 (q) that a
Sangguniang panlungsod may "provide for the burial of the dead in such place and in
such manner as prescribed by law or ordinance" it simply authorizes the city to
provide its own city owned land or to buy or expropriate private properties to
construct public cemeteries. This has been the law and practise in the past. It
continues to the present. Expropriation, however, requires payment of just
38

compensation. The questioned ordinance is different from laws and regulations
requiring owners of subdivisions to set aside certain areas for streets, parks,
playgrounds, and other public facilities from the land they sell to buyers of subdivision
lots. The necessities of public safety, health, and convenience are very clear from
said requirements which are intended to insure the development of communities with
salubrious and wholesome environments. The beneficiaries of the regulation, in turn,
are made to pay by the subdivision developer when individual lots are sold to home-
owners.

As a matter of fact, the petitioners rely solely on the general welfare clause or on
implied powers of the municipal corporation, not on any express provision of law as
statutory basis of their exercise of power. The clause has always received broad and
liberal interpretation but we cannot stretch it to cover this particular taking. Moreover,
the questioned ordinance was passed after Himlayang Pilipino, Inc. had
incorporated. received necessary licenses and permits and commenced operating.
The sequestration of six percent of the cemetery cannot even be considered as
having been impliedly acknowledged by the private respondent when it accepted the
permits to commence operations.

WHEREFORE, the petition for review is hereby DISMISSED. The decision of the
respondent court is affirmed.

SO ORDERED.

Teehankee (Chairman), Melencio-Herrera, Plana, Vasquez and Relova, JJ., concur.

























G.R. No. L-24740 July 30, 1979

REPUBLIC OF THE PHILIPPINES, plaintiff-appellee,
vs.
CELESTINO C. JUAN and ANA TANSECO JUAN, defendants-appellants.

Celestino C. Juan &, Associates for appellants.

Solicitor General's Office for the appellee.



MAKASIAR, J.:1wph1.t

Appeal by defendants-appellants from the decision dated September 28, 1964 of the
Court of First Instance of La Union in Civil Case No. 1835 for the expropriation of
338.7480 hectares of land owned by spouses Celestino C. Juan and Ana Tanseco as
the site for the La Union Regional Agricultural School, directing the plaintiff Republic
of the Philippines tot.hqw

... pay the legal owners Celestino C. Juan and Ana Tanseco the amount of
P190,000.00 which is the just and reasonable compensation that the Court rules in
this case in favor of the defendants; and it appearing that on May 7, 1963,
P100,000.00 had already been paid, it is therefore ordered that upon this decision
becoming final the balance of P90,000.00 plus interest of 6% from May 4, 1963 shall
be paid to defendants Celestino C. Juan and Ana Tanseco," aside from the costs of
the suit.

Defendants-appellants are the registered owners of two (2) adjoining parcels of land
located at Barrio Sapilang, Bacnotan, La Union with an aggregate area of 3,387,480
39

square meters or 338.7480 hectares, more or less, and covered by Original
Certificate of Title No. 0-420 issued on April 14, 1959 (pp, 9-14, 46-47, ROA; Vol. 1,
rec.).

Pursuant to the authorization issued on March 15, 1963 by the President of the
Philippines through the Executive Secretary (p 15, ROA), the Solicitor General filed
on April 8, 1963 the complaint for expropriation of the aforesaid parcels of land to be
used as the site of the La Union Agricultural School, which was to be established by
authority of Republic Act 2692 (pp. 9-20, 43 ROA, Vol. I, rec.).

Before the institution of the expropriation proceedings Victor Luis, who was appointed
principal of the proposed school, recommended the property of defendants as the
school site. Thereafter, together with Mrs. Avelina L. Osias, he negotiated with the
defendants for the purchase of their property (pp. 85-87, ROA, Vol. 1, rec.). On
January 25, 1963, he wrote a letter to defendant Celestino Juan, thus:t.hqw

... Feelers have come to you to inquire about the price that you would be willing to
sell your land. Mrs, Pacita Gonzales and the undersigned came to you personally
and you informed us verbally your least price of P170,000.00 which you explained to
us is very reasonable.

May I request your kindness to confirm the above price in writing, as your offer as the
selling price of your above-mentioned land in order that there will be an official record
or basis in negotiating with authorities concerned in the purchase of your land as
school site. (pp. 43-44, ROA, Vol. I, rec.).

Defendant Celestino Juan replied on January 28, 1963.t.hqw

... that the selling price of my land is P170,000.00 net to me exclusive of the amount
of my obligation to the China Banking Corporation where the property is mortgaged.

The condition of the sale is at least P90,000.00 down and the balance within a period
of one (1) year. Title to the property will be transferred to you immediately provided
that an annotation of the remaining balance of the price be accordingly made in the
new title.

I wish, however, to tell you that presently there are no less than 23 tenants in the
land and they are harvesting or about to harvest their tobacco crops. In justice to
them, they should be allowed to finish harvesting their crops before they are finally
ejected.

It is with deep regret that I cannot part with the land at a lesser price. There are 3
parties at least aside from you who are interested to buy the land. One of them is
ready to sign the contract for a price of P200,000.00 payable in cash or at least a
period of ten (10) days. This party, through an understanding with a certain bank can
mortgage the property for P350,000.00. As you see, if the primary consideration is
money alone, then, if I am a smart, I should mortgage the land myself. It should be
noted, and I have all the records with me, that I have applied for a loan with the
Development Bank of the Philippines in the amount of P4,102,000.00 principally to
establish a dairy farm and mortgaging only as collateral the said land. From the
conversation with said bank, it seems to me that the same would be favorably
considered if not for P4,000,000.00 at least P1,000,000.00.

Kindly confirm your acceptance of the terms of this letter as I can hold the land for a
period of ten (10) days. (pp. 382-384, ROA).

After receipt of the aforequoted letter, Mr. Luis consulted his office in Manila (p. 86,
ROA, Vol. I, rec.) as well as the provincial officials of La Union and the municipal
officials of Bacnotan (pp. 86,174, ROA, Vol. I, rec.).

In an order dated April 15, 1963, the trial court authorized the Government to enter
and take immediate possession of the property after depositing the amount of
P90,793.70 with the provincial treasurer of La Union as provisional value (p. 20,
ROA, Vol. I, rec.),

Defendants on April 24, 1963 filed their "Urgent Motion for Reconsideration and/or to
Lift Writ of Possession" questioning among others, the propriety and correctness of
Resolution No. 13, series of 1962, of the Provincial Appraisal Committee and pointing
out that "the fair and reasonable market value ... should be at least fifty centavos
(P0.50) per square meter of P5,000.00 per hectare" and prayed that the complaint for
expropriation be dismissed for lack of jurisdiction; to set aside the order dated April
15, 1963 and instead order plaintiff to deposit the amount of P300,000.00 as
provisional value; and to set aside the writ of possession dated April 16, 1963 until
the court has decided the issue of jurisdiction and/or until plaintiff has deposited the
amount of P300,000.00 as provisional value of the property (pp. 22-32, ROA, Vol. I,
rec.). On the same date, the lower court lifted the writ of possession until further
orders.

Acting on the aforesaid motion on April 26, 1963, the lower court found the
expropriation proceedings in order and the provisional value made by the Provincial
40

Appraisal Committee inadequate and ordered the plaintiff Republic of the Philippines
to deposit the amount of P100,000.00 as provisional value until the true valuation of
the lots can be determined in accordance with law and further directed "that for the
best interest of the defendants whose improvements may be vandalized for lack of
protection, let the writ be effected without prejudice to the final determination of the
true value of the property to be determined in due course" and forthwith ordered the
issuance of the writ of possession after the deposit by plaintiff of the amount of
P100,000.00 is made (p. 45, ROA, Vol. I, rec.).

On May 4, 1963, plaintiff Republic of the Philippines took possession and occupied
the lots under expropriation (p. 86, ROA, Vol. I, rec.) and deposited on May 7, 1963
the amount of P100,000.00 which the appellants withdrew that same day.

On May 7, 1963, defendants filed two simultaneous pleadings: motion for
reconsideration of the provisional value on the ground that the value fixed by the
court is still inadequate; and a motion to dismiss which likewise embodied
defendants' answer to the complaint for expropriation (pp. 46-66, ROA, Vol. I, rec.).

In an order dated June 13, 1963, the court denied the motion to dismiss of
defendants for lack of merit (p. 66, ROA, Vol. I, rec.).

In order dated January 8, 1964, the trial court directed the condemnation of the
property,t.hqw

it appearing that the plaintiff has already deposited the amount of P100,000.00 the
provisional value of the property sought to be condemned, which amount has already
been withdrawn by the defendants and the property accordingly turned over to the
Republic of the Philippines for the use of the La Union Agricultural School, ..." (pp.
66-67, ROA, emphasis supplied).

and appointed as commissioners of appraisal (1) Atty. Rogelio Balagot, for the lower
court and as chairman; (2) Atty. Eufemio Molina, for the plaintiff; and (3) Atty. Pablito
M. Rojas, for the defendants (pp. 4, 67-68, ROA, Vol. I, rec.).

For a period of three days, these commissioners in the presence of the parties,
conducted an extensive ocular inspection and physical investigation of the property,
after which they held protracted hearings until June 2, 1964, wherein both parties
were given full opportunity to present their respective positions with voluminous
documentary and oral evidence (p. 4, ROA, Vol. I, rec.).

On June 29, 1964, Atty. Eufemio Molina, commissioner for plaintiff, filed his report
dated June 25, 1964 (pp. 69-78, ROA, Vol. I, rec.) recommendingt.hqw

... that the value of the land of defendants to be taken as the site of the La Union
Agricultural School at Sapilang, Bacnotan, La Union, be fixed at P135,000.00. which
amount is the meeting point between the government's offer of P100,000.00 and the
defendants' price of P170,000.00.

Atty. Pablito M. Rojas, commissioner for the defendants, in his report of July 13,
1964, recommendedt.hqw

... as the price of the land to be paid by the plaintiff to the defendants the amount of
P1,407,856.00 the same to bear interest at the legal rate from the date of possession
by the plaintiff to the date the amount is actually paid.

Commissioner Rogelio F. Balagot for the court and chairman
recommended:t.hqw

... that the just compensation to be paid the defendants landowners be the following:

Value of the Land......................................................................... P1,044,163.70
Value of Improvements.................................................................. 1,712.60

Total Amount................................................................ P1,045,876.30

That the balance of P945,876.30 (deducting P100,000.00, the amount paid as
provisional value) earn legal interest (6%) until fully paid.

Defendants-appellants filed their objection to the reports of Commissioners Rojas,
Balagot and Molina, claiming that the true value of the land is P1,736,208.32 or
P1,693,740.00 (pp. 284, 374, ROA, Vol. 1. rec.).

On September 4, 1964, defendants filed a petition entitled "Petition to Submit Case
for Decision" without any hearing on the reports (p. 378, ROA, Vol, I, rec.)

On September 28, 1964, the lower court rendered its decision (pp. 380- 426, ROA,
Vol. I, rec.).

41

A motion for reconsideration was filed by defendants on October 26, 1964 (pp. 426-
508, ROA. Vol. I, rec.), but the same was denied by the Court in an order dated May
10, 1965 (pp. 509-514, ROA. Vol. I, rec.).

I

Under their first assignment of error, appellants contend that the propriety of the
expropriation and the manner in which it was conducted were in dispute throughout
the proceedings in the trial court and that they never waived their objections thereto;
that the conditions precedent as provided for by Executive Order No. 132, series of
1937, as amended, were not complied with, for no proper and valid negotiation to
purchase the lots or to have it donated to the Government was undertaken by the
State before the institution of the expropriation case in court; and that the resolution
of the Appraisal Committee which was the basis of the amount alleged in the
complaint as the fair market value of the lots to be expropriated was null and void,
having been adopted contrary to legal requirements (pp. 24-46, Appellants' Brief: p.
11. Vol. II. rec.). The same points were raised by the appellants in their motion for
reconsideration of the lower court's main decision and the trial court in its order of
May 10, 1965 correctly overruled them, stating that:t.hqw

Movants start by bringing to the front the alleged lack of negotiations between plaintiff
and defendants for the acquisition of the 338 hectares belonging to the latter. Non-
compliance with Executive Order No. 132 is mentioned repeatedly by the defendants
as vitiating this case. It is even hinted that the best resolution for this case would be
to dismiss it because plaintiff failed to comply with said Executive Order dictated in
pre-war days. Plaintiff delivered to defendants through this Court P100,000.00 as
part of the fair and just compensation that the defendants are entitled. On May 7,
1963, such amount was received by defendants and plaintiff started developing the
area and constructing the buildings needed for the La Union Agricultural School. This
school is now in operation; and it would certainly be the most disturbing step for the
regularity of the functions of the Government to dismiss the case, compelling the
plaintiff to remove all buildings in the land that once belonged to the defendants and
return the property to them. Besides, interpreting with fair liberality the pre-war
Executive Order No. 132, the court shall now state that for the purpose of
negotiations with the land owners the letter of January 5, 1963 received by the
defendants and the latter's reply of January 28, 1963 are clear and sufficient
compliance with the tenor and spirit of said Executive Order. The court, therefore,
rejects any request that this case having been filed without sufficient compliance with
said administrative procedures the whole proceeding shall have to be dismissed. This
cannot be done." (pp. 511-512, ROA, Vol. I, rec.).

To begin with, it must be emphasized that plaintiff-appellee in this instant case is the
Republic of the Philippines which is exercising its right of eminent domain inherent in
it as a body sovereign. In the exercise of his sovereign right the state is not subject to
any limitation other than those imposed by the Constitution which are: first, the taking
must be for a public use; secondly, the payment of just compensation must be made;
and thirdly, due process must be observed in the taking. Beyond these conditions,
the exercise by the State of its right of eminent domain is subject to no restraint.
Section 64(h) of the Revised Administrative Code confers upon the Chief Executive
the power to determine when it is necessary or advantageous to exercise the power
of eminent domain in behalf of the Republic of the Philippines and to direct the
Solicitor General to cause the filing of the appropriate condemnation proceedings in
court. By this grant, the executive authorities may then decide whether the power will
be invoked and to what extent (see pp. 87-89, Political Law of the Philippines,
Ta;ada and Carreon, 1962 ed., citing Visayan Refining Co. v. Camus, 40 Phil. 550).

Appellants in making their first assignment of error are under the wrong impression
that the provisions of Executive Order No. 132 are conditions precedent to the valid
exercise of the State of its right of eminent domain. As a whole, Executive Order No.
132 is purely an administrative procedure confined within the executive department of
the government designed merely to govern and regulate the taking of private
properties for public use which may either be by voluntary sale or by donation in favor
of the government. Nothing is provided in said executive order expressly or impliedly
making the procedures therein enumerated as conditions precedent to the valid
exercise by the government of the right of eminent domain by filing the proper action
in court. As stated, Executive Order No. 132 was intended merely to govern the
taking of private property short of judicial action either by purchase or donation. Being
so, the same cannot limit or circumscribe the sovereign and inherent right of the
State to expropriate private property through the Courts.

Moreover, there has been substantial compliance with the requirements of Executive
Order No. 132; because negotiations for the purchase of the parcels were conducted
between Victor Luis, the principal of the proposed agricultural school, and Mrs.
Avelina L. Osias on one hand, and the defendants-appellants on the other, which did
not result in a voluntary sale by the defendants-appellants for lack of agreement on
the just compensation for the parcels.

Paragraph (a) of Executive Order No. 132 provides that negotiations shall be
conducted by the "Director of Public works, city or district engineer, or other officials
42

concerned ... The last term can comprehend the principal of the proposed agricultural
institution.

Furthermore, the unqualified withdrawal by appellant of the amount of P100,000.00
deposited in court by the plaintiff as provisional value of the lots subject of
expropriation, constituted recognition on their part of the right of the government to
expropriate the lots, (Republic v. Pasicolan, May 31, 1961, 2 SCRA 626).

If the unconditional withdrawal of the amount deposited as provisional value
precludes the defendants-appellants from questioning the right of the plaintiff to
expropriate, it must necessarily follow that said withdrawal also estops defendants-
appellants from raising any objection to the manner and propriety of the exercise by
the plaintiff of the right of expropriation (18 American Jurisprudence 634-635,
Francisco's The Revised Rules of Court in the Philippines, Vol. IV-B, pp. 411-412).

There can be no debate that due process was observed in the instant case. Likewise,
education is public use or public purpose. Republic Act No. 2692 expressly
authorizes the establishment of the La Union Regional Agricultural School within the
Province of La Union and the acquisition of a suitable site therefor. The inadvertent
omission of the term Regional in the complaint for expropriation could not nullify the
expropriation of the lands of defendants-appellants. Such error in the complaint does
not amend the law and can easily be corrected without affecting the validity of the
proceedings.

II

The valuation of the lots must be fair and just, not only to the owner but also to the
taxpayers who are to pay for it. Appellants are entitled to receive only the value of
what they have been deprived of, and no more; because to award them less, would
be unjust to them, and to award them more, would be unjust to the public (27 Am.
Jur., 2nd s 266, footnote 17 pp. 52- 53).

The three commissioners appointed by the trial court to determine the fair market
value of the lots did not reach a consensus as to the classification of the land, the
allocation of areas as to each class, and the fair market value of each class of land.

Commissioner Rogelio F. Balagot found and recommended as follows:

1. Irrigated Riceland

70

P8,500.00

P595,000.00

2. Upland Rice

66

3,500.00

231,000.00

3. Orchard Land

52.0785

1,200.00

50,494.20

4. Pasture Land

90.6695

1,000.00

90,669.50

5. Forestland

70

1,000.00

77,000.00

TOTAL

43

338.7480 has.



1,044,163.70

and, after adding to the above amount the sum of P1,712.00, representing
improvements, finally recommended the amount of P1,045,876.30 less P100,000.00
earlier withdrawn by appellants, to earn legal interest until fully paid (pp. 271-282,
ROA, Vol. I, rec.) Commissioner Pablito M. Rojas appraised the land as follows:

Commissioner Pablito M. Rojas appraised the land as follows:

Land Classification

Total

Market

Total



Hectares

Value sq. meter

Market Value

Irrigated Palay Land

65.0000

P1.00

P650,000.00

Upland Palay

66.0000

0.30

198,000.00

Orchard

38.0785

25

98,200.00

Pasture Land

95.6695

10

92,669.50

Forestry Compound

8.0000

30

95,000.00

Forest Land

65.0000

15

97,500.00

Barrio Compound

4.0000
44


.50

20,000.00

TOTAL

338.7480



1,171,369.50

and after considering some factors, like the fact that the lots are titled, said
commissioner finally recommended "the amount of P1,407,856.00, the same to bear
interest at the legal rate from the date of possession by the plaintiff to the date the
amount is actually paid" (pp. 160-166, ROA, Vol. I, rec.).

Commissioner Eufemio Molina adopted the following classification and
allocation:t.hqw

(a) With respect to Lot No. 1 (Exh. "B"), into t.hqw

1. Unirrigated riceland with an area of 120,000 sq. meters.

2. Upland rice with an area of 85,000 sq. meters.

3. Pasture land with area of 2,801,695 sq. meters.

(b) With respect to Lot No. 2 (Exh. 'B-l') , into-t.hqw

1. Unirrigated riceland with an area of 120,000 sq. meters,

2. Upland rice with an area of 85,000 sq. meters.

3. Pasture land with an area of 175,785 sq. meters.

and making a mass valuation of the entire two lots, recommended the amount of
P135,000.00 by taking into consideration the amount which to him is the price the
government is willing to pay: P100,000.00 (actually the provisional value deposited
by the government to take possession of the lots); P170,000.00 which according to
him is the amount for which the defendants are willing to part with their lots (actually
P190,000.00 including the bank mortgage liability of the land) and also the fact that
the lots in question were acquired by tile defendants in 1957 for the amount of only
P50,000.00 fro 'm Felipe Nebrija and his children (pp, 71- 78, ROA, Vol. 1, rec.).

Before the filing of the complaint, a Provincial Appraisal Committee composed of
Provincial Assessor Ramon Zandueta as chairman, and as members, Provincial
Highway District Engineer( Oscar Data and Provincial Auditor Gabino Ferrer, was
constituted. On November 16, 1962, this committee conducted an ocular inspection
of the property, and on the same day, submitted its Resolution No. 13, Exhibit A,
which classified defendant's property as follows:t.hqw

60 hectares riceland at P800.00 per hectare .I................. P48,000.00

278.7480 hectares pasture land at P150.00 per hectare ...41,812.20t.hqw

TOTAL................................................................ 189,812.20

(p. 135, ROA, Vol. I. rec.). The aforesaid resolution was rejected as having been
done in haste (pp. 135-136, ROA, Vol. I, rec.).

According to Provincial Assessor Zandueta, the amount of P89,812.20 is the
assessed value of the property, which assessed value is the appraised value in
expropriation cases (p. 141, ROA, Vol. I, rec.).

La Union Agriculturist Pio A. Tadina was requested by Provincial Assessor Ramon
Zandueta to appraise the property. Pursuant to said request, Mr. Tadina went to the
property thrice and thereafter submitted his classification and valuation, as follows:

1. 40 hectares riceland

P60,000.00

P200,000.00

2. 20 hectares riceland

20,000.00

45

60,000.00

3. 80 hectares pasture land

40,000.00

80,000.00

4. 120 hectares fruit trees

60,000.00

120,000.00

5. 72 hectares 2nd growth forest

78,000.00

156,000.00

TOTAL

P258,000.00

P616,000.00

(p. 145, ROA, Vol. I, rec.).

When the complaint was filed, the improvements on the property consisted of the
following:

20 mango (bearing) P30 ea.

P800.00

21 coconut (bearing) P5 ea.

105.00

4 coconut (non-bearing) P2 ea.

8.00

4 caimito (star apple) P8 ea.

32.00

2 Chesa P5 ea.

10.00

4 Kasuy P2 ea.

8.00

12 bamboos (heavy) P0.30 ea.

3.60

1 bamboo (light) P0.10 ea.

0.10

1 breadfruit P5 ea.

5.00

1 jackfruit P4 ea.

4.00

1 guayabano P1 ea.

1.00

6 orange (non-bearing) P1 ea.

6.00

TOTAL
46


P982.70

(pp. 16-17, ROA, Vol. I, rec.).

Mr. Luis Victor, principal of the La Union Regional Agricultural School, testified that
there were around 30 fruit-bearing mango trees, once coconut fruit-bearing trees and
banana plants (p. 139, ROA, Vol. I, rec.).

Both Attys. Pablito M. Rojas and Rogelio Balagot, commissioners representing
respectively the defendants-appellants and the trial court, agreed that the value of
the improvements on the property was then P1,712.60 (pp. 163, 280-281, ROA, Vol.
I, rec.).t.hqw

... Starting from the town proper of Bacnotan, one can reach the property by passing
through the barrios of Cabaroan, Sayoan, Salincob, Casiaman and finally Sapilang.
The place is about 2.5 kilometers north of the Poblacion along the National Highway
up to the so-called Cabaroan junction. From this junction is about a 2-kilometer
feeder road going eastward. And from this lateral road is an unsurfaced road of
approximately 1.5 kilometers leading to the site of the Agricutural School. However,
before the school took possession of the land on May 4, 1963, the place was not
accessible at all by any motor vehicles, and that the only means was to hike over rice
paddies, trails and creeks.

Topographically, the property of defendant is situated on a high elevation. It consists
of mountains and hills forming a semi-circle, and sloping on the sides towards an
elongated portion or valley like depression which is level and developed into
ridefields. Because of its high elevation or location, the climate of the place is
healthful, temperate and especially invigorating when one is near or within the vicinity
of the waterfall or spring. The climate is of the kind which the Weather Bureau would
call the Type I climate; that is, the place has two distinct seasons, a dry season from
December to June, when there are light rains or no rains at all and wet season, from
June to December, when rains are abundant, heavy and frequent. The soil to the
place is good. It has a luxurient vegetation.

The property as per Original Certificate of Title No. 0-420 (Exh. '9-f') is divided into 2
lots; Lot No. 1 has an area of 3,006,695 square meters and covered by Tax
Declaration No. 33043 (Exh. 'b'); and Lot No. 2 which is under Tax Declaration No.
33043 (Exh. 'B-l') has an area of 380,785 square meters, making a total land area of
338,7480 hectares, with an assessed value of P42,120.00.

Aside from the waterfall or spring within the property, there are also fruit trees,
scattered bamboo groves, banana trees in patches, forest area, upland and pasture
land. The bamboo and banana lands, however, cannot properly be considered as
such because the land upon which they grow is not planted principally for such
growth. The improvements on the forestry area have been introduced by the
government, notably the Reforestation Administration of the Department of
Agriculture and Natural Resources. (Exh "D" and Exh. "I"). The other improvements
on the land have been itemized in the complaint filed before the Court. (pp. 69-71,
ROA, Vol. I, rec.).

The foregoing findings do not appear to be disputed.

Defendant-appellant Celestino Juan himself, stated in his letter of January 28, 1963
that his property is worth P190,000.00 (including his bank loan), which he later
increased to P300,000.00 in his motion for reconsideration filed on April 24, 1963. It
should be recalled that over three months earlier, appellant Celestino Juan, in his
letter dated January 2, 1963 to the Provincial Appraisal Committee, evaluated his
property at approximately P329,374.00, stating that he spent P15,000.00 for survey
P5,000.00 for registration and P20,000.00 for bulldozing and levelling; that 60
hectares are first class which should be worth P3,000.00 per hectare; and that the
remaining portion of 278.748 hectares should command at least P500.00 per hectare
(pp. 35-37, ROA, Vol. I. rec.).

The last evaluation in the amount of P300,000.00 judicially given by the defendants-
appellants is a declaration and admission binding on them (Sec. 22, Rule 130,
Revised Rules of Court), there being no showing that they were laboring under an
error of fact. No compelling reason has been advanced to justify their being relieved
from the binding effects of such admission. As We ruled in the Republic of the
Philippines versus Narciso [99 Phil. 1031 (1956)], "the owners' valuation of the
property may not be binding on the Government or the Court, but it should at least
set a ceiling price for the compensation to be awarded. Moreover, the prices to be
considered are those at the beginning of the expropriation, not the increased values
brought about by the improvements and actuations of the Government after
occupying the premises" (Re-affirmed in R.P. v. PNB, April 12,1961, 1 SCRA 957-
963).

When the defendants-appellants withdrew in 1963 the P100,000.00 deposited by the
government, they already obtained a clear profit of P10,000.00 on their alleged
investment of P90,000.00 consisting of P50,000.00, the price they allegedly paid for
47

the property in 1957, and P40,000.00 allegedly representing expenses for levelling,
surveying and securing their Torrens title of the property from 1957 to 1959. The
balance of P392,000.00 consisting of P200,000.00 and interest of P192,000.00 at
6% annually for 16 years from May 4, 1963 to 1979 is all profit, even during times
of inflation. From 1957 until May 4, 1963, when the government took possession of
the property, the defendants-appellants paid realty taxes on the basis of their tax
assessment of only P42,120.00 (P89,812.20 according to Provincial Assessor
Zandueta [p. 141, ROA, Vol. I, rec.]). Atty. Pablito M. Roxas and Atty. Rogelio
Balago, appraisal commissioners respectively for appellants and the trial court,
conceded that the value of the improvements was only P1,712.00 in 1963. To give
them more than a million pesos about P1,111,360.00 on the basis of the
appraisal of P616,000.00 by provincial agriculturist Pio Tadina, including interest for
16 years at 6% per annum, would be to mulct the tax-paying public, as the said
amount is over ten times or over 1000% on their alleged original investment of
P90,000.00 from 1957, to 1959. Precisely, in their reply dated January 28, 1963, their
selling price was only P170,000.00 net to them, exclusive of their bank debt of
P20,000.00.

The appraisal of Provincial Agriculturist Pio Tadina, Chief Agricultural Appraiser
Rafael T. David of the DBP, Commissioner Balagot and Commissioner Rojas,
respectively, in the amount of P616,000.000, P1,006,400.00, P1,044,163.70, and
P1,171,369.50, is patently extravagant, considering that the property was bough in
1957 (1956 as claimed by appellants [pp. 112, 126, Appellants' Brie])) for P50,000.00
only and the value of the improvements did not exceed P1,712.60 as of May 4, 1963,
when the government took possession. It is doubtful that the property would increase
in value over 6 times or over 10 times or by over 600% or over 1,000% in six years,
from 1957 to 1963, with the expenses for surviving, securing the Torrens title over
and bulldozing said property amounting to not more than P40,000.00, already
included in the computation (p. 36, ROA, Vol.. I, rec.).

It should be emphasized that the property is about 6 kilometers from the poblaciosion
of Bacnotan; that on May 4, 1963, when the government took possession of the
same, it was not accessible at all by any motor vehicle and can only be reached by
hiking through rice paddies, trails; and creeks; that it was not fully developed: and
that it was then assessed at P42,120.00 (P89,812.20 according to Provincial
Assessor Zandueta), although it has a waterfall or- spring,

According to Commissioner Molina, the property has 24 hectares of Unirrigated rice
land and 17 hectares dedicated to upland rice with the greater portion of 297.748
hectares as pasture land (pp, 71-72, ROA, Vol. I, rec.). Pio Tadina reported that 60
hectares are riceland, 80 hectares pasture land 120 hectares with fruit trees and 78
hectares second growth forest (p. 146, ROA, Vol. I. rec.). According to Rafael 'I.
David,, who was requested by appellant Juan to make an appraisal (p. 145, ROA,
Vol. I. rec.), 70 hectares are riceland, 66 hectares for upland rice, 38.0785 hectares
for orchard, 90.6695 hectares pasture land, 5 hectares forestry compound, 65
hectares forest land and 4 hectares barrio compound (p. 150, ROA, Vol. I, rec.).

Even under the classification of Commissioners Balagot and Rojas, as aforestated,
about 50% of the property is not improved by man nor dedicated to agriculture, for
about 95 hectares are pasture land and 70 hectares are forest land.

The sales of farm lots in the vicinity of the property in question from April, 1959 to
May 14, 1962 (pp. 74-75, 152-153, 156-157, ROA, Vol. I, rec.), do not provide an
adequate basis for appraisal of the property of defendants-appellants; because such
sales involved very small developed areas of less than a hectare each, which small
lots usually command better prices within the reach f the ordinary buyer. The instant
case involves the condemnation of over 338 hectares.

III

It is argued that appellants judicial admission of P300,000.00 as the provisional value
of their lots, should not bind them, because said admission refers only to the
provisional value of the said lots and not as an admission of the actual - fair and just -
value of the lots. The provisional value fixed by the Court pursuant to Section 2 of
Rule 67 of the Rules of Court, is the provisional value that does not bind the land-
owners. But when the landowner himself fixes the provisional value, he should abide
thereby in obedience to the rule that admissions in pleadings bind the party making
them.

Section 2 of Rule 67, New Rules of Court reads:t.hqw

Entry of plaintiff upon depositing value with the National or Provincial Treasurer
Upon the filing of the complaint or at any time thereafter the plaintiff shall have the
right to take or enter upon the possession of the real or personal property involved if
he deposits with the National or Provincial Treasurer its value, as provisionality and
promptly ascertained and fixed by the Court having jurisdiction of the proceedings, to
be held by such treasurer subject to the orders and final disposition o)f the court...

48

Rule 69, Section 3 of the Old Rules of Court under which the present case was filed
contained a similar provision. (See also Visayan Refining Co. v. Camus. 40 Phil. 550-
556 [1919] and Manila Railroad Co. v. Paredes (31 Phil. 118-142 [1915]).

For emphasis, We repeat that the price of P300,000.00 was the provisional value
fixed not by the trial court, but by the defendants-appellants as owners in their motion
for reconsideration filed on April 24, 1963. The provisional value fixed by the trial
court in its order of April 15, 1963, was only P90,793.70, the reconsideration of which
the owners sought from the trial court. In its order of April 26, 1963, the trial court
fixed the provisional value of P100,000.00. The trial court, in its challenged decision
of September 28, 1964, finally fixed the value at P190,000.00, which is still more than
double the alleged capital investment of P90,000.00 allegedly paid by the owners for
the purchase of the property, levelling and expenses for survey and titling of the
property from 1957 to 1959. In his own letter of January 28, 1963, where he fixed his
selling price at P170,000.00 net to him (plus P20,000.00 bank mortgage on the
property), defendant-appellant Celestino, Juan stated that the best offer he had for
the property was only P200,000.00.

While it may be true that the value provisionally fixed by the trial court "... does not
necessarily represent the true and correct value of the land ..." it is equally true that
the said amount provisionally fixed may yet turn out to be the true and correct value
of the lots approximating the "just compensation" requirement of the Constitution. In
fact, the same may also turn out to be more than the true and correct value of the
property condemned by the government (see 27 AM JUR 2nd 111, footnote 16).

Furthermore, it can be justifiably inferred that when appellants themselves proposed
on April 24, 1963 the amount of P300,000.00 as the provisional value of their lots,
they were referring actually to the highest value their lots could command at that
time, notwithstanding their very speculative and extravagant claim in the same
pleading (where they made the P300,000.00 proposal) that the "fair market value of
(the) property should at least be fifty centavos . . per square meter or P5,000.00 per
hectare.

Consider the following circumstances: t.hqw

1. In his reply dated January 28,1963 to the letter of Mr. Victor Luis, appellant
Juan stated that the selling price of his land was "P170,000.00 net to me exclusive of
the amount of my obligation to the China Banking Corporation where the property is
mortgaged", or P190,000.00 including the mortgaged debt of P20,000.00 (pp. 382-
384, ROA).

2. Appellants-spouses acquired the lots in 1956 (as claimed by appellants) or
1957 (as stated in the decision of the trial court) from Felipe Nebrija and his children
for only P50,000.00.

3. The lots in question were taxed on the basis of an assessment of only
P42,120.00.

4. In his letter dated January 2, 1963 to the Provincial Appraisal Committee,
appellant Celestino Juan evaluated his lots at approximately P319,374.00.

As a matter of fact, appellant should be bound by his P190,000.00 admission. In the
light of the above-mentioned circumstances, the said amount of P190,000.00 is
already just and reasonable.

Appellants' claim that they were forced to make the P190,000.00 offer because they
were then under a pressing need for money to defray expenses in connection with
certain criminal case involving appellant Ana to settle said cases, can hardly invite
belief; because (1) appellant Celestino Juan did not aver this alleged urgent need for
money in his letter of January 28, 1963, and (2) notwithstanding appellant Juan's
claim in that same letter of January 28, 1963 that an interested buyer of the said lots
was "ready to sign the contract for a price of P200,000.00 payable in cash or at least
a period of ten (10) days," appellant did not dispose of the same to said interested
buyer, despite the lapse of ten days during which he could have had the money
from the receipt by Victor Luis of said letter. Moreover, the same letter belies his
alleged dire need for money to settle the alleged criminal cases against his wife for
he stated therein that he had then a pending DBP loan application for P4,102,000.00
for a dairy farm, and that by reason of his connection with DBP officials, his
application would be favorably considered for P1,000,000.00 with the expropriated
property as collateral together with the dairy farm equipment, facilities and stock.

Being a lawyer, appellant Celestino Juan knew that the reputation of his wife and for
that matter his family would be better protected and preserved by her acquittal after
trial than by settlement of the case (see pp. 107-108, Appellants' brief). Compromise
of a criminal case, other than a private offense, does not remove the criminal liability
and the concomitant stigma. Settlement of a criminal case, unlike acquittal, will not
stop the people from talking about the guilt of the accused therein.

Of course "judicial or non-judicial admissions made by condemnees as to the value
of their properties that are to be expropriated should not be deemed conclusive if
49

such admitted value be unjust, because the Constitution imperatively requires the
payment of 'just compensation'". But in the instant case, it could hardly be said that
the amount of P300,000.00 is unjust to the appellants. The delay in the payment is
compensated by the liability for 6% .interest per annum, covering sixteen (16) years
from 1963 to 1979 on the balance of P200,000.00 (on May 7, 1963, appellants
withdrew the P100,000.00 deposit) amounting to P192,000.00. The total balance due
appellants would be P392,000.00. The total payment to them then would be
P492,000.00. Beyond this price, the value would be excessive and unjust to the State
and the taxpayer (27 Am. Jur. 2d 52-53 266, footnote 17).

It must be pointed out that the most reliable pieces of evidence in the records relative
to the just compensation to be paid herein appellants are those hereinbefore
enumerated, namely, appellants' own evaluation in 1963, the acquisition cost the tax
assessment. This is so because the Committee failed to arrive at an acceptable
valuation, not to mention the fact that the individual reports of the commissioners of
the Appraisal Committee did not undergo the indispensable requirement of hearing
before the trial court. It must be herein stressed that almost all the evidence
enumerated earlier are in the nature of admissions by the owner, which kind of
evidence under existing jurisprudence occupies a preferred position in the realm of
proof of just compensation and valuation in eminent domain.

Even the purchase price of P50,000.00 paid in 1956 or 1957 by appellants for the
lots sought to be condemned in 1963 is generally held admissible as evidence of the
lots' fair market value, unless such purchase is too remote in point of time from the
condemnation proceedings or more special consideration induced the sale at less
than the true market value (29-A C.J.S. 1203-04).

Similarly, the assessed valuation of land made by tax assessors when required by
the law, and the owner's own valuation may be considered together with other proofs
in the determination of the just value of the lots condemned (29-A C.J.S. 1201-1202).

As aforestated, appellants paid realty taxes on the property on the basis of an
assessed valuation of only P42,120.00, with improvements worth only P1,712.00. On
January 28, 1963, appellants' offer was P190,000.00, then P300,000.00 on April 24,
1963, as provisional value, after extravagantly claiming that the property is worth the
fantabulous price of at least P5,000.00 per hectare or a total of P1,693,040.00. Not
even the irrigated rice lands along the national highway in Nueva Ecija, the home
province of appellants, could command that price to P5,000.00 per hectare in 1963.
And the lands in the case at bar are in La Union, hilly, and away from the national
highway without direct access to any feeder road.

In our jurisdiction, the statement of the value of his property by the owner in the tax
declaration shall, since 1940 under C.A. No. 530, constitute prima facie evidence of
the real value of the property in expropriation proceedings by the Government and its
instrumentalities.

In short, it could therefore be said taking into consideration the acquisition cost of
P50,000.00 in 1956 or 1957 of the lots subject matter of the case, the alleged cost of
P40,000.00 for levelling, surveying and titling thereof from 1957 to 1959, the
assessed value as well as the tax declarations of the appellants with respect to these
lots of only P42,120.00, the improvements worth P1,712.00 in 1963, and the several
admissions or estimates made by the appellants with respect to the value of the lots
ranging from P190,000.00 to P319.374.00 to P300,000.00 to P1,693,040.00
(P5,000.00 per hectare)that the amount of P300,000.00 is just to appellants, not to
mention that in addition to said amount a considerable interest of P192,000.00 for 16
years (1963-1979) would be paid on the unpaid balance of P200,000.00 from May 4,
1963 by the Government, or a grand total of P492.000.00, which is over five (5) times
or over 500% their capital investment of P90,000.00 from 1956 to 1959. Anything
beyond this amount is grossly excessive and patently unjust to the government and
the taxpaying public (29 Am. Jur.2d 52-53 266, footnote 17).

It cannot be seriously claimed by appellants that the declarations of value of the lots
in Exhibits B and B-1 were not made by them (pp. 346-347, ROA), considering that
said tax declarations were made only after the title over the lots was obtained by
appellants. Exhibits B and B-1 clearly indicate that appellants and no one else made
the said declarations (p. 182, ROA).

Likewise, the valuation of Agriculturist Tadina should not be accorded too much
weight for the following reasons: t.hqw

1. His valuation report is based purely on his own estimate and opinion: hence
in his letter to Atty. Ramon Zandueta which embodied his evaluation, he therein
stated that "... You will note hereunder the technical analysis of the undersigned with
regards to the area under consideration as a personal opinion ..."

2. The factors he considered in evaluating the lots in question could hardly
justify this valuation in the amount of P616,000.00. Hence: "The 80 hectares of
pasture land if properly grazed and managed is capable of maintaining no less than
400 heads of cattle. The 120 hectares of fruit trees is suitably adapted to cacao,
coffee, bananas, mangoes. pineapple, citrus, avocado, rambutan, lanzones, The 78
50

second growth forest if only planted to "alnos Mirando" a Japanese kind of forest tree
will also increase the volume of spring water for irrigation purposes ... The second
growth forest land has been evaluated higher than the pasture and fruit tree lands
because forest lands do not only conserve soil erosion and soil fertility but also
provide organic matter for the irrigated riceland. It will also conserve and promote the
development of spring besides the value of the, trees and other forest by-products
which are now available as sources of income (pp.39-42,ROA).

3. Tadina is not "an experienced and competent appraiser" in the field of
eminent domain or expropriation cases. When cross-examined by the Fiscal of the
Province of La Union, he declared that the appraisal he made for the property in
Damortis, La Union, and that in Aringay was only with respect to its adaptability and
suitability for agriculture and not for purposes of determining the fair and reasonable
value (tsn, pp. 505-506, pp. 201, 202, ROA; see also pp. 108-109. ROA). His
appointment as Chairman of the Appraisal Committee for public lands in La Union did
not qualify him as an "experienced and competent appraiser" in expropriation cases;
because lands involved therein are public lands and the appraisal or determination of
the fair market value of said lots are not for purposes of expropriation cases (p. 202,
ROA). Neither would his participation in the Poro Point expropriation add to his
qualifications as an appraiser in expropriation cases, because he was merely therein
consulted (p. 202. ROA).

4. His classifications were made by estimates and not by actual measurements
(tsn, p. 514; p. 204, ROA).

That the land "had potential for conversion into subdivision" should not be considered
in the valuation of the lots in question; because (1) the records of the case do not
show conclusive evidence as to the subdivision potentiality of the lots; and (2) as held
in Manila Electric Co. v. Tuason, "agricultural land should be appraised as such and
not as potential building site" (60 Phil. 663 [1934], reiterated in the case of The
Municipal Government of Sagay v. Jison, et al., 104 Phil. 1026, 1033 [1958]).

Republic vs. Castelvi lends no support to appellants' position; because in the Castelvi
case, there was a finding by this Court 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 (p. 355, 58 SCRA).

As already noted above, the individual valuations made by the three commissioners
are of little value, if at all; because the same were irregularly prepared, not to mention
the fact that the same were not subjected to the indispensable hearing requirement
before the trial court wherein the commissioners could have been cross-examined
on their respective reports, the bases thereof, how they reached their conclusions,
and their qualifications, and related matters-vital to the credibility, or lack of it, of their
valuations.

It is urged that, because the value of the peso at the time of the taking in 1963 by the
government of the lots of appellants and the value of the peso today when the just
compensation to be awarded to appellants is to be paid, are no longer the same, this
factor should be considered in the determination of the final award to be given; and
that even if WE consider appellants as having judicially admitted the amount of
P300,000.00 as the price of their property, the doubling of this sum at this time is
justified.

Actually, under this proposition, the amount to be doubled shou1d only be the
balance of P200,000.00, for appellants had ,withdrawn and made use of the
P100,000.00 deposited by the government at the inception of this case.

It is of course true that the value of the peso in 1963 and at present is no longer the
same. But this does not justify US in considering that factor nor in doubling the
amount judicially admitted by appellants; because such contingency is already well-
taken care of by the interest to be awarded to appellants. For that is the true role or
nature of interest in expropriation cases; because said interest is not contractual in
nature nor based on delict or quasi-delict, but one that "runs as a matter of law and
follows as a matter of course from the right of the landowner to be placed in as good
a position as money can accomplish, as of the date of the taking" (30 CJS 230).
Stated otherwise: "Where the payment of compensation does not accompany the
taking of property for public use but is postponed to a later date, the owner of the
property is ordinarily entitled to the award of an additional sum which will compensate
for delay (cases cited) or which will, in other words, produce the full equivalent of the
value of the property paid contemporaneously with the taking" (29-A CJS 762). Under
this view, the interest awarded is deemed part of the just compensation required to
be paid to the owner (27 Am. Jur, 112). This appears to be prevailing view in the
United States. As aptly and clearly explained in one American case:t.hqw

Article 1 18 of the Constitution of the State of Oregon, provides in part as follow:
'Private Property shall not be taken for public use ... without just cornpansation.' The
Fifth Amendment to the Constitution of the United States contains substantially the
51

same provision, 'nor shall private property be taken for public use, without just
compensation.' In construing this Identical language of the Federal Constitution the
Supreme Court of the United States holds as follows: lt is settled by the decision of
this court that just compensation is the value of the property taken at the time of the
taking (citing cases). And, if the taking precedes the payment of compensation, the
owner is entitled to such addition to the value at the time of the taking as will produce
the full equivalent of such value paid contemporaneously. Interest at a proper rate is
a good measure of the amount to be added' (numerous cases cited omitted). In these
cases and others, the proper rate of interest is held to be the legal rate of interest
prevailing in the jurisdiction where the land is located. The Supreme Court of West
Virginia holds on the authority of these decisions and also of Dohany vs. Rogers,
281, U.S. 362, 50 SGt. 299. 74 L.Ed 904, 68 ALR434, that denial of the right of
interest would be a violation of the fourteenth Amendment to the Federal
Constitution, Simons v. Dillon, 119 W. VA 284,193 S.E. 331, 113 A.L.R. 787. The
following texts are authority for the allowance of such interest as part of the damages
sustained by the owner of the land. Nichols on Eminent Domain 653, 216 (3d ed.);
Lewis, Eminent Domain (3d ed.) 1320, 742; 18 AM JUR., Eminent Domain, 272
[State vs. Deal, 233 P 2d 242, 251-252, emphasis supplied].

This view is also well-discussed by JAHR in his book, Eminent Domain Valuation
and Procedure (1953 ed.), Chapter XXVIII Payment of Compensation, pp. 286-
301; and by ORGEL in his book, Valuation Under Eminent Domain, Vol. I (1953 ed.)
on the subject of interest as part of just compensation and as a penalty for delay in
payment (Sec. 5, pp. 19-33).

In this jurisdiction, a study of the cases decided by this Court with respect to the
award of interest to the condemnee where there is a gap of time between the taking
and the payment, shows that We tend to follow the view just discussed. The first
case-it would appear-where the question of interest arose in this jurisdiction was the
Philippine Railway Co. vs. Solon, February 20, 1909, 13 Phil. 35-45. The two issues
taken there in connection with interest were: (1) From what time should interest be
reckoned, from time of the taking possession of the property by the government or
from judgment of the trial court; and (2) whether on appeal, appellant-condemnee is
entitled to interest during the pendency of the appeal. In disposing of the issues, the
Court, relving heavily on American jurisprudence, appears to treat interest as part of
just compensation and as an additional amount sufficient to place the owner "in as
good a position as money can accomplish, as of the date of the taking." Thus, the
Court declared: t.hqw

It remains to consider what interest the defendant is entitled to from named date. It
appears from the record that thecompany opposed the confirmation of the award. Its
objections were so far successful that the court reduced the amount awarded by the
commissioners. The owner was compelled to appeal and in his appeal has been so
far successful as to reverse the action of the the court below. Under these
circumstances we think he is entitled to interest on the award until the final
determination of this proceeding. What the result would be if he had failed in his
appeal, we do not decide. The interest thus allowed will be interest upon the amount
awarded by the commissioners from the 2nd day of February, 1907, until payment
(13 Phil. 40-44, emphasis supplied).

The Solon case thereafter became the basis of award of interest on expropriation
cases like Philippine Railway v. Duran, 33 Phil. 159 [1916]; Manila Railroad Co. v.
Alano, 36 Phil. 501 [1917]; Manila Railroad Co. v. Attorney General, 41 Phil. 177
[1920]; Alejo v. Provincial Government of Cavite, 54 Phil. 304 1930]; Tayabas v.
Perez, 66 Phil. 470 [1938]; Republic v. Gonzales, 94 Phil. 957 [1954]; Republic v.
Lara, 96 Phil. 172 [1954]; Phil. Executive Commission v. Estacio, 98 Phil. 219 [1956];
Republic of the Philippines v. Deleste, 46 al., 99 Phil. 1035 [1956] Republic v.
Garcellano, 103 Phil. 237 [1958]; Yaptinchay, 108 Phil. 1053 [1960]; Republic v.
Tayengco, 19 SCRA 900 [1967],and many others, until the matter of payment of
interest became an established part of every case where taking and payment were
not contemporaneously made.

And finally, We confirmed our adherence to the prevailing view in the United States
when in the case of Urtula vs. Republic, January 31, 1968, 222 SCRA 477, 480), We
declared, through Mr. Justice J.B.L. Reyes, that: t.hqw

... Said interest is not contractual, nor based on delict or quasi-delict, but one that
t.hqw

runs as a matter of law and follows as a matter of course from the right of the
landowner to be placed in as good a position as money can accomplish, as of the
date of the taking'" (C.J.S. 230; see also Castelvi case, supra, and Republic v. Nable-
Lichauco, 14 SCRA 682).

In this connection, it must be pointed out that the judicial notice taken by this Court in
the Castelvi case (supra, 363) "... of the fact that the value of the Philippine peso has
considerably gone down since the year 1959," was premised not on the par value of
the peso to the dollar, but on the dollarpeso exchange rates at the time of the taking
of the lots and at the time of the payment thereof.
52


In the case of Manuel & Co. vs. CB (38 SCRA. 533-542 [1971]), We distinguished
between par value of the peso and the dollar-peso exchange rate. The par value of
the peso to the dollar-two pesos to one dollar-is fixed by law and remains intact (see
48, R.A. 265, 1948; Sec. 6, CA No. 699, 1945). Hence, while there was a change of
the exchange rate, the par value of the peso as established by law remains
unchanged.

Such par value can only be altered by the President of the Philippines upon proposal
of the Monetary Board with five members concurring and approved by Congress
(Sec. 49[3] RA No. 265).

On the other hand, the rate of exchange or exchange rate is the "price, or the
indication of the price, at which one can sell or buy with one's own domestic currency
a foreign currency unit. Normally, the rate is deterniined by the law of supply and
demand for a particular currency" (38 SCRA 533-542).

It is submitted that the Castelvi doctrine on the value of our peso is of doubtful
legality, considered in the context of the Central Bank case, above discussed. In
effect, the Castelvi ruling has devalued our peso; a case of devaluation by judicial
fiat.


In the light of the foregoing, the de facto devaluation of our peso should not be taken
into account in the final determination of the value of the lots, subject matter of the
case.

In the 1970 case of Dizon-Rivera v. Dizon (33 SCRA 554-557 [1970]), WE ruled
against appellants and held that the decrease in the purchasing value of the
Philippine peso provides no legal basis or justification for completing their legitime
with real properties of the estate instead of being paid in cash, reasoning thus:
t.hqw

Neither may the appellants legally insist on their legitime being completed with real
properties of the estate instead of being paid in cash, per the approved project of
partition. The properties are not available for the purpose, as the testatrix had
specifically partitioned and distributed them to her heirs, and the heirs are called
upon, as far as feasible to comply with and give effect to the intention of the testatrix
as solemnized in her will, by implementing her manifest wish of transmitting the real
properties intact to her named beneficiaries, principally the executrix-appellee. The
appraisal report of the properties of the estate as filed by the commissioner appointed
by the lower court was approved in toto upon joint petition of the parties, and hence,
there cannot be said to be any question-and none is presented-as to fairness of the
valuation thereof or that the legitimate of the heirs in terms of cash has been
understated. The plaint of oppositors that the purchasing value of the Philippine peso
has greatly declined since the testatrix death in January, 1961 provides no legal
basis of justification for overturning the wishes and intent of the testatrix. The
transmission of rights to the succession are transmitted from the moment of death of
the decedent (Article 777, and accordingly, the value thereof must be reckoned as of
then, as otherwise, estates would never be settled if there were to be a revaluation
with every subsequent flucluation in the values of the currency and properties of the
estate. There is evidence in the record that prior to November 25, 1964, one of the
oppositors, Bernardita, accepted the suin of P50,000.00 on account of her
inheritance, which, per the parties' manifestation, "does not in any way affect the
adjudication made to her in the projects of partition." The payment in cash by way of
making the proper adjustments in order to meet the requirements of the law on non-
impairment of legitimes as well as to give effect to the last will of the testatrix has
invariably been availed of and sanctioned see Articles 955, 1080 and 1104, Civil
Code). That her co-oppositors would receive their cash differentials only now when
the value of the currency has declined further, whereas they could have received
them earlier, like Bernardita, at the time of approval of the project of partition and
when the peso's purchasing value was higher, is due to their own decision of
pursuing the present appeal (emphasis supplied).

Additional distinction between the present case and the Castelvi case:

The proceedings before the commissioners and before the trial court in the Castelvi
case were all in accordance with the provisions of the rules, while this is not so in the
present case; because the commissioner's herein did not turn out a valid report, as
the commissioners made their own and separate reports and no consensus was
reached by them on the classification of the lots, allocation of areas to each class,
and the fair market value of each class and the lots as a whole. Furtherinore, no
hearing on the reports of the commissioners was made by the trial court in the case
at bar, because of the motion of the herein appellants to submit the same without any
(hearing).

The finding of the trial court, which was sustained by this Court, that the lots involved
in the Castelvi case were residential, was supported by and based on the factual
findings of the commissioners, who were unanimous thereon, and the Provincial
Appraisal Committee of Pampanga (58 SCRA 356-359): while in the present case no
53

one among the commissioners classified the lots or any portion thereof as residential
or one with residential/subdivision potentiality. With respect to Provincial Board
Resolution No. 13 on the report of the Provincial Appraisal Committee of La Union,
the same was disregarded tor having been passed in haste.

In the present case, commissioner Balagot classified the two lots into irrigated
riceland, upland riceland, orchard land, pasture land and forest land, Commissioner
Rojas similarly classified the lands as above, but adding thereto forestry compound
and barrio compound; while Commissioner Molina classified the lots into unirrigated
riceland, upland riceland and pasture land. It cannot be seriously claimed that the lots
involved in the present case is suitable as, or have potentials tor conversion into, a
residential subdivision simply because a 4-hectare area of the same was considered
by a member of the provincial appraisal committee as residential. In fact, said 4-
hectare area was reflected in the Provincial Appraisal Committee Report, Resolution
13 (Exh. A) as grazing land, not as a residential one (see pp. 138, 173, ROA; pp. 67,
143, Appellants' Brief). Furthermore, none among the commissioners believed the
testimony of the said member on that point as no one among them classified the lots
or any portion thereof as residential. The fact that the tenants of appellants previously
occupied the said area and constructed houses thereon, does not convert the whole
area or the portion thus occupied into a residential one. The residential nature of the
lot is not determined alone by the presence or absence of houses thereon (Republic
v. Garcia, 91 Phil. 46 [1952]). The determination of the true nature of a lot must take
into consideration, among other things, the location topography, kind of soil fertility or
productivity, and surroundings of the lot (Manila Railroad Co. Caligsihan, 40 Phil. 326
[1919]; Republic v. Garcia, supra: Republic v. Lara, 50 O.G. 5778 [1954]). Indeed,
the evidence relied upon by this Court in concluding that the lots involved in the
Castelvi case are residential and not agricultural, shows that: t.hqw

... Castelvi broached the Idea of subdividing her land into residential lots as early as
July 11, 1965 in her letter to the Chief of Staff of the Armed Forces of the Philippines
(Exh. 5-Castelvi). As a matter of fact, the layout of the subdivision plan was
tentatively approved by the National Planning Commission on September 7, 1956.
(Exh. 8-Castelvi). The land of Castelvi had not been devoted to agriculture since
1974 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. 13-Castelvi). The location of the Castelvi land justifies its suitability fora
residential subdivision. As found by the trial court, "It is at the left side and the
entrance of the Basa Air Base and bounded on two sides by roads (Exh. 13-Castelvi;
paragraphs 1 and 2, Exh. 12-Castelvi), the poblacion (of Floridablanca,) the
municipal building, and the Pampanga Sugar Mills are close by. The barrio
schoolhouse and chapel are also near (Tsn., Nov. 23, 1960, p. 68).

The land of Toledo-Gozun (Lot 1-B and Lot 3) are practically of the same condition as
the land of Castelvi. They are also contiguous to the Basa Air Base, and are along
the road. These lands are near the barrio school house, 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 by the
National Planning Commission on July 8, 1959 Exhs. 5 and 6-Toledo-Gozun). As
early as June, 1958, no less than 32 men connected with the Philippine Air Force
among them commissioned, officers, non-commissioned 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)" (58 SCRA 357, emphasis supplied).

In the present case, there is no evidence in the record warranting a conclusion that
the parcels involved have potentials for conversion into a residential subdivision. On
the contrary, the location, topography and the use to which the lots involved were,
devoted at the time of the filing of expropriation proceedings in the lower court,
indicate that they have none. In his report, Commissioner Molina described the
location and topography of the lots as follows: t.hqw

... Starting from the town propwer of Bacnotan, one can reach the property by
passing through the barrios of Cabaroan, Sayoan, Salincob, Casianan and finally
Sapilang. The place is about 2.5 kilometers north of the the Poblacion along the
National Highway up to the so-called Cabaroan junction. From this junction is about a
2-kilometer feeder road going eastward. And from this lateral road is an unsurfaced
road of approximately 1.5 kilometers leading to the site of the Agricultural School.
However, before the school took possession of the land on May 4, 1963, the place
was not accessible at all by any motor vehicles, and that the only means was to hike
over paddies, trails and creeks.

Topographically, the property of defendants is situated on a high elevation. It consists
of mountains and hills forming a semi-circle, and sloping on the sides towards an
elongated portion of valley-like depression which is level and developed into
ricefields. Because of its high elevation or location, the climate of the place
ishealthful, temperate and especially invigorating when one is near or within the
vicinity of the waterfall or spring. The climate is of the kind which the Weather Bureau
would call the Type I climate; that is, the place has two distinct reasons, a dry season
from December to June, when there are light rains or no raisn at all, and wet season,
54

from June to December, when rains are abundant, heavy and frequent. The soil of
the place is good. It has a luxuriant vegetation (pp. 69-70, ROA, emphasis supplied).

The presence of the houses of twenty-three (23) tenants in a 4-hectare area at the
time the government took possession of the lots herein involved, is not sufficient
proof of that portion's potentialitv for conversion into a residential subdivision, much
less of the whole parcel of about 338 hectares. There was no evidence that the
houses of the tenants were there constructed because of its residential nature. In all
likelihood, the tenants were forced by necessity to construct their Rouses therein to
be close to their respective tobacco farms. The fact that under the leasehold system
of land tenure, a tenant is allotted a portion for his dwelling does not render the entire
landholding no longer agricultural and thereby convert the same into a residential
land.

WHEREFORE, THE JUDGMENT APPEALED FROM IS HEREBY MODIFIED AND
THE PLAINTIFFAPPELLEE REPUBLIC OF THE PHILIPPINES IS HEREBY
DIRECTED TO PAY THE DEFENDANTSAPPELLANTS CELESTINO C. JUAN AND
ANA TANSECO THE SUM OF TWO HUNDRED THOUSAND (P200,000.00)
PESOS, WITH INTEREST AT THE LEGAL RATE OF SIX PERCENT (6%) PER
ANNUM FROM MAY 1, 1963. NO COSTS.

Fernandez, Guerrero, Abad Santos, De Castro and Melencio-Herrera, JJ.,
concur.1wph1.t

Concepcion Jr. and Santos, JJ., took no part.







Separate Opinions



FERNANDO, C.J., concurring:

Concurs in the opinion of Justice Makasiar as to the legal parts involved and in the
opinion of Justice Teehankee as to the accounts due appellants.



BARREDO, J., dissenting:

I cannot find sufficient evidence to "lorm a clear picture of the classification the
anocation of areas as to each class and the fair market value of each class of land.
The reports of the comnmissioners are so disparate, no conclusion can be deduced
from them. In other words, We do not have enough basis for a fair judgment.



AQUINO, J., dissenting:

I vote for the affirmance of the lower court's judgment.

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr. Justice Makasiar which rejects the appraisal of
defendants-appellants' expropriated property by provincial agriculturist Pio Tadina
(who was not even appointed by the lower court) in the sum of P616,000.00 as urged
by defendants-appellants, whereby plaintiff-appellee Republic of the Philippines
would have to pay defendants- appellants (after crediting the sum of P100,000.00
deposited by plaintiff and received by defendants) the further balance of P516,000.00
with 6% interest per annum from May 4, 1963 the date when plaintiff took possession
of rhe expropriated property and would amount to a total of well over One Million
Pesos (P1,000,000.00).

I maintain that defendants-appellants' own valuation of property given in the
expropriation proceeding itself is binding on them and sets the limit of the
compensation to be awarded them regardless of the patently extravagant and
exssive appraisals of some of the court-appointed commissioners.

Here defendant-appellant Celestino C. Juan himself in the negotiations for the sale of
his property to the State for use as a school site offered it for the price of
P190,000.00 (P170,000.00 plus bank loan of P20,000.00), with a down payment of
P90,000.00 and the balance of P100,000.00 payable within one year, as per his letter
of January 28, 1963. He increased this -aluation further to P300,000.00 in his motion
for reconsideration of April 24, 1963. This last evaluation judicially given by
defendants-owners is a declaration and admission binding on them, 1 unless they
55

can show that they were laboring under an error of fact. No such error has been
shown by defendantsappellants. Nor has any compelling reason been given to justify
their being relieved from the binding effects of such admission.

The P616,000.valuation urged by defendants-appellants amounts therefore to
double the very valuation of P300,000.00 given by and binding on themselves,
exceeding the same by P316,000.00, excluding 90%, interest at 6% per annum for
16 vears since 1963 that would have to be paid.

There is no justification for awarding to the owners double the amount of their own
valuation of their property. On the contrary the facts of record bear out that awarding
to the owners the compensation set by themselves in the amount of P300,000.00
(Pl10,000.00 more than the original amount asked by them and awarded by the lower
court) is a just and reasonable compensation, to wit, the property was bought in 1957
by defendants for P50,000.00 only and the value of their improvements thereon
amounted to only Pl,712.60 as of 1963, it is certainly doubtful and contrary to
experience that the property would increase in value over 12 times to P616,000.00
whereas the increase in 6 years to P300,000.00 as per the owners' own valuation
withou their having done anything to improve the property is quite an optimistic
valuation); the property is about six (6) kilometers away from the poblacion of
Bacnotan and when the government took possession of the same on May, 4, 1963, it
was not accessible at all by motor vehicle and could be reached only by hiking
through rice paddies, trails and creek; that it was not fully developed with 95 hectares
of pasture land and 70 hectares of forest land and an assessed valuation of
P42,120.00.

The only justification cited for granting an amount double the owners' own valuation
of the property is that the value of the peso has gone down and continues to decline.

Such decline provides no valid basis or justification for doubling the fair and just price
of P300,000.00 representing defendants-appellants' own judicially admitted valuation
of their property (increased in four [4] months by P110,000.00 compared to their
original offer to sell the same to the government for only P190,000.00, supra at page
1 hereof). It is settled law that the expropriation price to be considered is that at the
beginning of the expropriation and taking of possession. That defendants should now
receive the balance of P200,000.00 with legal interest when the value of the peso
has declined is due to their own decision of pursuing the present appeal. (See
DizonRivera vs. Dizon, 33 SCRA 554, 568). There is no claim of extraordinary,
inflation such as to make applicable Article 1250 of the Civil Code providing that "the
value of the currency at the time of the establishment of the obligation shall be the
basis of payment." Aside from the fact that this article is applicable only to contractual
obligations, neither the competent Executive and monetary authorities nor this Court
have ever admitted or declared that the factual assumption of said article
(extraordinary inflation) has come into existence. (Velasco vs. Meralco, 42 SCRA
556). The onerous and adverse consequences of such a declaration on the national
economy and stability of its finance and currency and on the great majority of
average and fixed wage-earners in relation to their contractual debts and obligations
are too staggering to contemplate.

Finally, there is no reason to disregard the general rule enunciadated in Republic of
the Philippines vs. Narciso, 2 that "the owners' valuation of the property may not be
binding on the Government or the court, but is should at least set a ceiling price for
the compensation to be awarded. Moreover, the prices to be considered are those at
the beginning of the expropriation not the increased values brought about by the
improvements and actuations of the Government after occupying the premises.

ACCORDINGLY, I vote for limiting the increase in compensation to be awarded to
defendant appellants to the valuation set by themselves as owner in the amount of
P300,000.00 with 6% interest per annum on the balance of P200,000.00 from May 4,
1963, which would bring the total exproprriation value to close to Five Hundred
Thousand Pesos (500,000.00) or ten times the original price paid therefor by
defendants-appellants.

ANTONIO, J., dissenting:

I dissent from the main opinion of my distinguished colleagues for the following
reasons:

(1) Celestino Juan, in making the admission of P300,000.00 as the value of the
property, was referring, not to a fair or just, but to a provisional value of his property.
The sum was stated four (4) times in his "Urgent Motion for Reconsideration And Or
to Lift Writ of Possession, 1 but there is no mistaking that he was referring merely to
a provisional value so that the Republic could obtain immediate possession of the
property. t.hqw

... It must be considered, however, that the amount fixed as the provisional value of
the lands that are being expropriated does .iot 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... (Republic v. Castellvi, L-20629, Aug. 15, 1974, 58 SCRA 336. 359.)
56


Celestino Juan should thus be considered as having judicially admitted P300,000.00
merely as the provisional value of his property and should not be bound by such
,value as the true value.

Nor may Juan be bound to his proposal to the principal of the agricultural school in
the sum of P190,000.00 as the selling price of his land because when he tendered
the proposal he was in urgent need of money to defray expenses in connection with
certain criminal cases involving his wife. 2

(2) Judicial or non-judicial admissions made by condemnees as to the value of
their properties that are to be expropriated should not be deemed conclusive if such
admitted value be unjust, because the Constitution imperatively requires the payment
of "just compensation." t.hqw

Sec. 2. Private property shall not be taken for public use without just compensation.
(Constitution, Article IV, Bill of rights.)

(3) There is, moreover, the circumstance that a portion of the land had potential
for conversion into a subdivision. In fact, a 4-hectare area was considered by a
member of the Provincial Appraisal Committee as residential; it was occupied by
tenants who built their houses thereon. 3 t.hqw

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 he most in the market at
the time the same. were taken from them... (Republic v.Castellvi, supra, at p. 358.)


(4) The appraisal by Provincial Agriculturist Tadina in the sum of P616,000
appears to be the most realistic and reliable. He was an experienced and competent
appraiser, and he undertook the appraisal impartially, as he did so in an official
capacity and without the knowledge of Celestino Juan. 4

(5) The mean value of the individual evaluations made by the three (3)
Commissioners substantially accords with, or even surpasses, the amount
recommended by Tadina, to wite:t.hqw

Atty. Rogelio Balagot, Chairman and Representative of the
Court......................................................................................................P1,045,876.30

Atty. Eufemio Molina, for the Plaintiff...................................135,000.00

Atty. Pablito Rojas, for the Defendants.............................1 ,407,856.00 t.hqw

P2,588,732.30

P2,588,732.30 divided by 3 = P862,910.77

(6) Finally, it cannot be denied that the purchasing power of the peso has, in the
meantime, depreciated. t.hqw

... 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... (Republic v. Castellvi,
supra, at p. 363.)

The ceiling conversion rate of the peso to the dollar in 1963 when the Republic took
possession of the property was P3.20 to $1.00; 5 the inter-bank guiding rate for
January 20, 1975 was P7.0705, 6 more than double that in 1963; on January 20,
1975, the foreign exchange rate was $1,00 for P7.32; 7 so that even if Celestino
Juan is to be considered as having judicially admitted the price of his property in the
sum of P300,000.00 (which admission is, as previously stated, qualified or non-
categorical), the doubling of this sum at this time is justified.

In contrast to the foregoing, land values have considerably appreciated anc continue
to increase.



# Separate Opinions

FERNANDO, C.J., concurring:

concurs in the opinion of Justice Makasiar as to the legal parts involved and in the
opinion of Justice Teehankee as to the accounts due appellants.

BARREDO, J., dissenting:

57

I cannot find sufficient evidence to "lorm a clear picture of the classification the
anocation of areas as to each class and the fair market value of each class of land.
The reports of the comnmissioners are so disparate, no conclusion can be deduced
from them. In other words, We do not have enough basis for a fair judgment.

AQUINO, J., dissenting:

I vote for the affirmance of the lower court's judgment.

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr. Justice Makasiar which rejects the appraisal of
defendants-appellants' expropriated property by provincial agriculturist Pio Tadina
(who was not even appointed by the lower court) in the sum of P616,000.00 as urged
by defendants-appellants, whereby plaintiff-appellee Republic of the Philippines
would have to pay defendants- appellants (after crediting the sum of P100,000.00
deposited by plaintiff and received by defendants) the further balance of P516,000.00
with 6% interest per annum from May 4, 1963 the date when plaintiff took possession
of rhe expropriated property and would amount to a total of well over One Million
Pesos (P1,000,000.00).

I maintain that defendants-appellants' own valuation of property given in the
expropriation proceeding itself is binding on them and sets the limit of the
compensation to be awarded them regardless of the patently extravagant and
exssive appraisals of some of the court-appointed commissioners.

Here defendant-appellant Celestino C. Juan himself in the negotiations for the sale of
his property to the State for use as a school site offered it for the price of
P190,000.00 (P170,000.00 plus bank loan of P20,000.00), with a down payment of
P90,000.00 and the balance of P100,000.00 payable within one year, as per his letter
of January 28, 1963. He increased this -aluation further to P300,000.00 in his motion
for reconsideration of April 24, 1963. This last evaluation judicially given by
defendants-owners is a declaration and admission binding on them, 1 unless they
can show that they were laboring under an error of fact. No such error has been
shown by defendantsappellants. Nor has any compelling reason been given to justify
their being relieved from the binding effects of such admission.

The P616,000. valuation urged by defendants-appellants amounts therefore to
double the very valuation of P300,000.00 given by and binding on themselves,
exceeding the same by P316,000.00, excluding 90%, interest at 6% per annum for
16 vears since 1963 that would have to be paid.

There is no justification for awarding to the owners double the amount of their own
valuation of their property. On the contrary the facts of record bear out that awarding
to the owners the compensation set by themselves in the amount of P300,000.00
(P110,000.00 more than the original amount asked by them and awarded by the
lower court) is a just and reasonable compensation, to wit, the property was bought in
1957 by defendants for P50,000.00 only and the value of their improvements thereon
amounted to only P1,712.60 as of 1963, it is certainly doubtful and contrary to
experience that the property would increase in value over 12 times to P616,000.00
whereas the increase in 6 years to P300,000.00 as per the owners' own valuation
withou their having done anything to improve the property is quite an optimistic
valuation); the property is about six (6) kilometers away from the poblacion of
Bacnotan and when the government took possession of the same on May, 4, 1963, it
was not accessible at all by motor vehicle and could be reached only by hiking
through rice paddies, trails and creek; that it was not fully developed with 95 hectares
of pasture land and 70 hectares of forest land and an assessed valuation of
P42,120.00.

The only justification cited for granting an amount double the owners' own valuation
of the property is that the value of the peso has gone down and continues to decline.

Such decline provides no valid basis or justification for doubling the fair and just price
of P300,000.00 representing defendants-appellants' own judicially admitted valuation
of their property (increased in four [4] months by P110,000.00 compared to their
original offer to sell the same to the government for only P190,000.00, supra at page
1 hereof). It is settled law that the expropriation price to be considered is that at the
beginning of the expropriation and taking of possession. That defendants should now
receive the balance of P200,000.00 with legal interest when the value of the peso
has declined is due to their own decision of pursuing the present appeal. (See
DizonRivera vs. Dizon, 33 SCRA 554, 568). There is no claim of extraordinary,
inflation such as to make applicable Article 1250 of the Civil Code providing that "the
value of the currency at the time of the establishment of the obligation shall be the
basis of payment." Aside from the fact that this article is applicable only to contractual
obligations, neither the competent Executive and monetary authorities nor this Court
have ever admitted or declared that the factual assumption of said article
(extraordinary inflation) has come into existence. (Velasco vs. Meralco, 42 SCRA
556). The onerous and adverse consequences of such a declaration on the national
economy and stability of its finance and currency and on the great majority of
58

average and fixed wage-earners in relation to their contractual debts and obligations
are too staggering to contemplate.

Finally, there is no reason to disregard the general rule enunciadated in Republic of
the Philippines vs. Narciso, 2 that "the owners' valuation of the property may not be
binding on the Government or the court, but is should at least set a ceiling price for
the compensation to be awarded. Moreover, the prices to be considered are those at
the beginning of the expropriation not the increased values brought about by the
improvements and actuations of the Government after occupying the premises.

ACCORDINGLY, I vote for limiting the increase in compensation to be awarded to
defendant appellants to the valuation set by themselves as owner in the amount of
P300,000.00 with 6% interest per annum on the balance of P200,000.00 from May 4,
1963, which would bring the total exproprriation value to close to Five Hundred
Thousand Pesos (500,000.00) or ten times the original price paid therefor by
defendantsappellants.

ANTONIO, J., dissenting:

I dissent from the main opinion of my distinguished colleagues for the following
reasons:

(1) Celestino Juan, in making the admission of P300,000.00 as the value of the
property, was referring, not to a fair or just, but to a provisional value of his property.
The sum was stated four (4) times in his "Urgent Motion for Reconsideration And Or
to Lift Writ of Possession, 1 but there is no mistaking that he was referring merely to
a provisional value so that the Republic could obtain immediate possession of the
property. t.hqw

... It must be considered, however, that the amount fixed as the provisional value of
the lands that are being expropriated does .iot 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... (Republic v. Castellvi, L-20629, Aug. 15, 1974, 58 SCRA 336. 359.)

Celestino Juan should thus be considered as having judicially admitted P300,000.00
merely as the provisional value of his property and should not be bound by such
,value as the true value.

Nor may Juan be bound to his proposal to the principal of the agricultural school in
the sum of P190,000.00 as the selling price of his land because when he tendered
the proposal he was in urgent need of money to defray expenses in connection with
certain criminal cases involving his wife. 2

(2) Judicial or non-judicial admissions made by condemnees as to the value of
their properties that are to be expropriated should not be deemed conclusive if such
admitted value be unjust, because the Constitution imperatively requires the payment
of "just compensation." t.hqw

Sec. 2. Private property shall not be taken for public use without just compensation.
(Constitution, Article IV, Bill of rights.)

(3) There is, moreover, the circumstance that a portion of the land had potential
for conversion into a subdivision. In fact, a 4-hectare area was considered by a
member of the Provincial Appraisal Committee as residential; it was occupied by
tenants who built their houses thereon. 3 t.hqw

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 he most in the market at
the time the same. were taken from them... (Republic v.Castellvi, supra, at p. 358.)


(4) The appraisal by Provincial Agriculturist Tadina in the sum of P616,000
appears to be the most realistic and reliable. He was an experienced and competent
appraiser, and he undertook the appraisal impartially, as he did so in an official
capacity and without the knowledge of Celestino Juan. 4

(5) The mean value of the individual evaluations made by the three (3)
Commissioners substantially accords with, or even surpasses, the amount
recommended by Tadina, to wite:t.hqw

Atty. Rogelio Balagot, Chairman and Representative of the
Court......................................................................................................P1,045,876.30

Atty. Eufemio Molina, for the Plaintiff...................................135,000.00

59

Atty. Pablito Rojas, for the Defendants.............................1 ,407,856.00 t.hqw

P2,588,732.30

P2,588,732.30 divided by 3 = P862,910.77

(6) Finally, it cannot be denied that the purchasing power of the peso has, in the
meantime, depreciated. t.hqw

... 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... (Republic v. Castellvi,
supra, at p. 363.)

The ceiling conversion rate of the peso to the dollar in 1963 when the Republic took
possession of the property was P3.20 to $1.00; 5 the inter-bank guiding rate for
January 20, 1975 was P7.0705, 6 more than double that in 1963; on January 20,
1975, the foreign exchange rate was $1,00 for P7.32; 7 so that even if Celestino
Juan is to be considered as having judicially admitted the price of his property in the
sum of P300,000.00 (which admission is, as previously stated, qualified or non-
categorical), the doubling of this sum at this time is justified.

In contrast to the foregoing, land values have considerably appreciated anc continue
to increase.

#Footnotest.hqw

1 Rule 130. sec. 22 "Admissions of a party. The act, declaration or omission
of a party as to a relevant fact may be given in evidence against him.

2 99 Phil. 1031 (1956).

1 Record on Appeal, pp. 25, 30, 31, & 32.

2 TSN, May 7, 1964, pp. 550-552, as cited in Motion for Reconsideration,
Record on Appeal, pp. 426, 478-480.

3 TSN, p. 4, as cited in Appellants' Brief on pages 67 & 143.

4 TSN, p. 407, cited in Record on Appeal, p. 201.

5 Central Bank Memo. March 12, 1962.

6 Philippines Daily Express, January 20. 1975. p. 10.

7 Newsweek, January 20, 1975, p. 43.