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JUDICIAL ABATEMENT OF
NUISANCE WITH A PRAYER
FOR THE ISSUANCE OF
TEMPORARY RESTRAINING
ORDER AND/OR WRIT OF
PRELIMINARY INJUNCTION
PLUS DAMAGES
X------------------------------------------------/
REPLY
PLAINTIFFS, thru the undersigned counsel and unto this Honorable Court,
submit the instant Reply and avers that;
1.
On March 18, 2015, Plaintiffs, thru counsel received the defendants Motion
To Admit Answer with Leave of Court and therefore has ten (10) days or on March
28, 2016, within which to file their Reply;
2.
wit, However, he entered into a lease agreement with ZC Golden Food only June 1,
for the establishment of Commissary and Storage facility, contrary to the
allegation that the lease was made in the first quarter of 2013. By inference,
defendants expressly confirmed and admitted the Barangay San Jose Barangay
Resolution No. 014, Series of 2013, dated March 18, 2013 (Annex A of the
complaint), that what was really established was a WAREHOUSE which run
contrary to their Business Permit dated January 20, 2015, wherein it stated the
nature of business as PRODUCTION (Annex H of the complaint);
3.
Barangay Council of Barangay San Jose, Pagadian City, by averring among others
that THE SANGGUNIANG BARANGAY OF SAN JOSE KNEW THAT
WHAT IS TO BE CONSTRUCTED IS A WAREHOUSE FOR THE
PRODUCTION OF DUNKIN. Upon careful examination of the Minutes during
the regular session of Barangay Council of Barangay San Jose, dated March 18, 2013,
INTERPOSING
NO
OBJECTION
OF
PUTTING
UP
WITH
THE
EXISTING
LAWS,
REGULATIONS
AND
directly to the canal fronting the residence of plaintiff, causing to emit a very
offensive foul odor; defendant deliberately and intentionally delay the filing of their
answer to buy time in order to conceal the waste disposed by introducing
improvements therein; that whether the canal is closed or not, still, it does not alter
the fact that it still emits a very offensive foul odor; defendants further avers that
they allegedly installed a grease trapper and the water that comes out from its
sewerage system is ONLY ORIDINARY WATER; granting that only ordinary water
will flow from their sewerage system, still, this is not an ordinary water because the
water is already contaminated with lubricants and other chemical
substances before it was disposed; in fact, the production inside also emits an
offensive smells because of the cooked products of defendant DUNKIN;
5.
complaint is premature because there was no prior barangay conciliation before the
Lupong Tagapagmayapa of Barangay San Jose; the affirmative defense of
prematurity invoke by the defendants is misplaced because both defendant Robert
Lao and defendant Eduardo Chua are not actual residents of Barangay San Jose nor
both are residents of Pagadian City. Thus, Section 408 (d) of R.A. 7160, an
exceptions, to wit;
SEC.
408. Subject
Matter for
Amicable
Settlement; Exception Thereto. The lupon of each
barangay shall have authority to bring together the
parties actually residing in the same city or municipality
for amicable settlement of all disputes except:
(f) Disputes involving parties who actually reside
in barangays of
different
cities
or
municipalities, except where such barangay units
adjoin each other and the parties thereto agree to submit
their differences to amicable settlement by an
appropriate lupon; (underling supplied)
7.
nowhere can it be gleaned that defendants were actually residing in Barangay San
Jose, Pagadian City or both defendants are an actual residents of Pagaian City; in
fact, the address mentioned in the Business Permit (Annex H of the complaint) is
only a business address and not an indication or determining factor that the
defendants actually resided in Barangy San Jose or Pagadian City. Thus, in Dante
M. Pascual versus Marilou M. Pascual, G.R. No. 157830, November 17,
2005, citing the case of Tavor vs. Velasco G.R. No. 60367, September 30, 1982, the
Supreme Court resolved and held that, to wit;
Where the parties are not actual residents in
the same city or municipality or adjoining
barangays, there is no requirement for them to
submit their dispute to the lupon as provided for
in Section 6vis a vis Sections 2 and 3 of P.D.
1508 (Katarungang Pambarangay Law).
[B]y express statutory inclusion and exclusion,
the Lupon shall have no jurisdiction over
disputes
where the parties are
not actual residents of
the
same
city
or
municipality, except where the barangays in
which they actually reside adjoin each other.
(citation supplied for emphasis)
8.
Granting further but without admitting and for arguendo sake that both
defendants are actual residents either in Barangay San Jose or in Pagadian City,
prior recourse to barangay conciliation is still not required because the instant case is
one for Judicial Abate of Nuisance with a Prayer for the Issuance of Temporary
Restraining Order and/or Writ of Preliminary Injunction. Thus, Section 412 (b)
(3) of R.A. 7160, allows the party to go directly to the court when the actions are
coupled with provisional remedies, such as in the instant case where the plaintiff
asked for preliminary injunction; Therefore the said provision of law provides that,
to wit;
Sec. 412. . (b) Where parties may go directly to
court. -The parties may go directly to court in
the following instances:
(1) Where the accused is under detention;
(2) Where a person has otherwise been deprived of
personal liberty calling for habeas corpus proceedings;
(3) Where actions are coupled with provisional
remedies such as preliminary injunction,
attachment, delivery of personal property, and
support pendent lite;(underling supplied)
(4) Where the action may otherwise be barred by the
statute of limitations.
9.
Further, in the same law (R.A. 9003), section 42 provides that and reads as
follows,
Section
42.
Independence
of
Action-
The
filing
of
an
11.
In the affirmative defenses, defendants raised that plaintiffs should have first
filed the complaint before the DENR; defendants in their answers also avers among
others, to wit, Consequently, an ECC is not required under Section 2 of
P.D. 1586, for every proposed project and undertaking which DOES NOT
SIGNIFICANTLY affect the quality of the environment; yet, the defendants
questioned the propriety of the plaintiffs complaint because it failed to exhaust
administrative remedies allegedly in relation to R.A. 9003; defendants were
estopped from questioning the exhaustion of administrative remedies because in the
first
place,
defendants
have
no
ENVIRONMENTAL
COMPLIANCE
Lease and marked as Annex 3 purporting to be that said place is only for
COMMISSARY AND STORAGE, but in reality, the said premises was used as a
PRODUCTION of their products; in fact the Business Permit of the defendant
DUNKIN speaks for itself, it described the nature of their business which is
PRODUCTION;
13.
Finally, on the onset, in the Entry of Appearance with Urgent Motion for
Extension of Time to File Answer, defendant DUNKIN counsel avers among others
the The undersigned counsels legal services were engaged by the area manager of
Z.C. Food Enterprises (henceforth ZCFE), MA. CRISTINA TUAYON SAKILI only on
February 26, 2016, several days after the latters receipt of the summons and in the
Answer, defendant Robert Lao, appointed ROY PARAS, as his Attorney-In-Fact, to
represent the instant case; precaution should be made then because the plaintiffs,
aside from seeking judicial abatement of nuisance, it also ask and pray for the
issuance of Temporary Restraining Order and/or Writ of Preliminary Injunction;
such provisional remedy is directly against the owner/proprietor Eduardo Chua and
also against Robert Lao. Thus, the area manager MA. CRISTINA TUAYON SAKILI
of defendant DUNKIN and the Attorney-In-Fact ROY PARAS are not the real
parties-in-interest; as defined under Sec. 2, Rule 3 of the Rules of Court, A real
party in interest-the party who stands to be benefited or injured by the
judgment in the suit or the party entitled to the avails of the suits.; in the