Natividad C. Cruz and Benjamin Dela Cruz Vs. Pandacan Hiker's Club, Inc.

GR No. 188213 | January 11, 2016

FACTS: Herein petitioner, Natividad Cruz, was the Punong Barangay or Chairperson of Barangay
848, Zone 2, City of Manila. In one occasion, she approached person playing basketball in the basketball
court, saying:
“Bakit nakabukas ang (basketball) court? Wala kayong karapatang maglaro sa court
na 'to, barangay namin ito! xxx xxx xxx Wala kayong magagawa. Ako ang chairman
dito. Mga walanghiya kayo, patay gutom! Hindi ako natatakot! Kaya kong panagutan
lahat!”
She gave an order to the other petitioner, Barangay Tanod Benjamin dela Cruz, to destroy the basketball
ring by cutting it up with a hacksaw which Dela Cruz promptly complied with. The acts of petitioners
prompted the filing of a Complaint (for Malicious Mischief, Grave Misconduct, Conduct Prejudicial to the
Best Interest of the Service and Abuse of Authority) before the Prosecutor's Office and the Office of the
Ombudsman by the group that claims to be the basketball court's owners, herein respondents Pandacan
Hiker's Club, Inc. and its president Priscila Ilao.

Cruz alleged that the basketball court affected the peace in the barangay and was the subject of many
complaints from residents asking for its closure. She alleged that the playing court blocked jeepneys from
passing through and was the site of rampant bettings and fights involving persons from within and outside
the barangays. She claimed that innocent persons have been hurt and property had been damaged by
such armed confrontations, which often involved the throwing of rocks and improvised “molotov” bombs.
She also averred that noise from the games caused lack of sleep among some residents and that the
place's frequent visitors used the community's fences as places to urinate.

The Office of the Ombudsman dismissed the complaint filed by Ilao, et al. finding that the act of
destroying the basketball ring was only motivated by Cruz and Dela Cruz performing their sworn duty, as
defined in the Local Government Code. It found the act to be a mere response to the clamor of
constituents. The office found that though the cutting of the ring was “drastic,” it was done by the
barangay officials within their lawful duties, as the act was only the result of the unauthorized removal of
and failure to return the steel bar and padlock that were earlier placed thereon.

The appellate court reversed the Ombudsman’s Decision stating that Cruz and Dela Cruz performed an
abatement of what they thought was a public nuisance but did the same without following the proper legal
procedure, thus making them liable for said acts. Moreover, it held Cruz to be without the power to
declare a thing a nuisance unless it is a nuisance per se. It declared the subject basketball ring as not
such a nuisance and, thus, not subject to summary abatement. The court added that even if the same
was to be considered a nuisance per accidens, the only way to establish it as such is after a hearing
conducted for that purpose. Thus, this petition.

ISSUE: Whether or not there is a nuisance which the Barangay Chairperson may summarily abate.

HELD:
There is a nuisance when there is “any act, omission, establishment, business, condition of
property, or anything else which: (1) injures or endangers the health or safety of others; or (2) annoys or
offends the senses; or (3) shocks, defies or disregards decency or morality; or (4) obstructs or interferes
with the free passage of any public highway or street, or any body of water; or (5) hinders or impairs the
use of property.” But other than the statutory definition, jurisprudence recognizes that the term “nuisance”
is so comprehensive that it has been applied to almost all ways which have interfered with the rights of
the citizens, either in person, property, the enjoyment of his property, or his comfort.
A nuisance is classified in two ways: (1) according to the object it affects; or (2) according to its
susceptibility to summary abatement. As for a nuisance classified according to the object or objects that it
affects, a nuisance may either be: (a) a public nuisance, i.e., one which “affects a community or
neighborhood or any considerable number of persons, although the extent of the annoyance, danger or
damage upon individuals may be unequal”; or (b) a private nuisance, or one “that is not included in the
foregoing definition” which, in jurisprudence, is one which “violates only private rights and produces
damages to but one or a few persons.”

A nuisance may also be classified as to whether it is susceptible to a legal summary abatement, in which
case, it may either be: (a) a nuisance per se, when it affects the immediate safety of persons and
property, which may be summarily abated under the undefined law of necessity; or, (b) a nuisance per
accidens, which “depends upon certain conditions and circumstances, and its existence being a question
of fact, it cannot be abated without due hearing thereon in a tribunal authorized to decide whether such a
thing does in law constitute a nuisance;” it may only be so proven in a hearing conducted for that purpose
and may not be summarily abated without judicial intervention.

In the case at bar, none of the tribunals below made a factual finding that the basketball ring was a
nuisance per se that is susceptible to a summary abatement. And based on what appears in the records,
it can be held, at most, as a mere nuisance per accidens, for it does not pose an immediate effect upon
the safety of persons and property, the definition of a nuisance per se. Culling from examples cited in
jurisprudence, it is unlike a mad dog on the loose, which may be killed on sight because of the immediate
danger it poses to the safety and lives of the people; nor is it like pornographic materials, contaminated
meat and narcotic drugs which are inherently pernicious and which may be summarily destroyed; nor is it
similar to a filthy restaurant which may be summarily padlocked in the interest of the public health. A
basketball ring, by itself, poses no immediate harm or danger to anyone but is merely an object of
recreation. Neither is it, by its nature, injurious to rights of property, of health or of comfort of the
community and, thus, it may not be abated as a nuisance without the benefit of a judicial hearing. But
even if it is assumed, ex gratia argumenti, that the basketball ring was a nuisance per se, but without
posing any immediate harm or threat that required instantaneous action, the destruction or abatement
performed by petitioners failed to observe the proper procedure for such an action which puts the said act
into legal question.

CRISOSTOMO B. AQUINO vs. MUNICIPALITY OF MALAY AKLAN,

G.R. No. 211356; September 29, 2014

DOCTRINE: Based on law and jurisprudence, the office of the mayor has quasi-judicial powers to order
the closing and demolition of establishments. This power granted by the LGC, as earlier explained, We
believe, is not the same power devolved in favor of the LGU under Sec. 17 (b)(2)(ii), as above-quoted,
which is subject to review by the DENR. The fact that the building to be demolished is located within a
forestland under the administration of the DENR is of no moment, for what is involved herein, strictly
speaking, is not an issue on environmental protection, conservation of natural resources, and the
maintenance of ecological balance, but the legality or illegality of the structure. Rather than treating this
as an environmental issue then, focus should not be diverted from the root cause of this debacle
compliance.

FACTS

Petitioner is the president and chief executive officer of Boracay Island West Cove Management
Philippines, Inc. (Boracay West Cove). On January 7, 2010, the company applied for a zoning compliance
with the municipal government of Malay, Aklan.2 While the company was already operating a resort in
the area, and the application sought the issuance of a building permit covering the construction of a three-
storey hotel over a parcel of land measuring 998 sqm. located in Sitio Diniwid, Barangay Balagab, Boracay
Island, Malay, Aklan, which is covered by a Forest Land Use Agreement for Tourism Purposes (FLAgT)
issued by the Department of Environment and Natural Resources (DENR) in favor of Boracay West Cove.
Through a Decision on Zoning dated January 20, 2010, the Municipal Zoning Administrator denied
petitioner’s application on the ground that the proposed construction site was within the “no build zone”
demarcated in Municipal Ordinance 2000-131 (Ordinance).

Petitioner appealed the denial action to the Office of the Mayor but despite follow up, no action was ever
taken by the respondent mayor. A Cease and Desist Order was issued by the municipal government,
enjoining the expansion of the resort, and on June 7, 2011, the Office of the Mayor of Malay, Aklan issued
the assailed EO 10, ordering the closure and demolition of Boracay West Cove’s hotel.

Petitioner filed a Petition for Certiorari with prayer for injunctive relief with the CA Alleging that the order
was issued and executed with grave abuse of discretion.

PETITIONER CONTENTION: The hotel cannot summarily be abated because it is not a nuisance per se,
given the hundred million peso-worth of capital infused in the venture. And the Municipality of Malay,
Aklan should have first secured a court order before proceeding with the demolition.

RESPONDENTS CONTENTION: The demolition needed no court order because the municipal mayor has
the express power under the Local Government Code (LGC) to order the removal of illegally constructed
buildings.

ISSUE: Whether or not a judicial proceedings be conducted first before the LGU can order the closure and
demolition of the property in question.

RULING

Generally, LGUs have no power to declare a particular thing as a nuisance unless such a thing is a
nuisance per se.

Despite the hotel’s classification as a nuisance per accidens, however, we still find in this case that
the LGU may nevertheless properly order the hotel’s demolition. This is because, in the exercise of police
power and the general welfare clause, property rights of individuals may be subjected to restraints and
burdens in order to fulfill the objectives of the government. Otherwise stated, the government may enact
legislation that may interfere with personal liberty, property, lawful businesses and occupations to
promote the general welfare.

Under the law, insofar as illegal constructions are concerned, the mayor can, after satisfying the
requirement of due notice and hearing, order their closure and demolition.

One such piece of legislation is the LGC, which authorizes city and municipal governments, acting through
their local chief executives, to issue demolition orders. Under existing laws, the office of the mayor is given
powers not only relative to its function as the executive official of the town; it has also been endowed
with authority to hear issues involving property rights of individuals and to come out with an effective
order or resolution thereon.20 Pertinent herein is Sec. 444 (b) (3) (vi) of the LGC, which empowered the
mayor to order the closure and removal of illegally constructed establishments for failing to secure the
necessary permits.

G.R. No. 192861 June 30, 2014

Doctrine:

It is a standing jurisprudential rule that unless a nuisance is a nuisance per se, it may not be summarily
abated. Aside from the remedy of summary abatement which should be taken under the parameters
stated in Articles 704 (for public nuisances) and 706 (for private nuisances) of the Civil Code, a private
person whose property right was invaded or unreasonably interfered with by the act, omission,
establishment, business or condition of the property of another may file a civil action to recover personal
damages. Abatement may be judicially sought through a civil action therefor if the pertinent requirements
under the Civil Code for summary abatement, or the requisite that the nuisance is a nuisance per se, do
not concur. To note, the remedies of abatement and damages are cumulative; hence, both may be
demanded.

Facts:

Teresita Lee Wong and Spouses Shirley and Ruben Ang Ong (Wong, et. al) are co-owners pro-indiviso of a
residential land situated in Peace Valley Subdivision, Lahug, Cebu City, abutting a 10-meter wide
subdivision road (subject road).

On the opposite side of the subject road, are the adjacent lots of Spouses Wilson and Rosario Uy (Sps. Uy)
and Spouses Reynaldo and Linda Rana (Sps. Rana). The said lots follow a rolling terrain with the Rana
property standing about 2 meters higher than and overlooking the Uy property, while the Wong-Ong
property is at the same level with the subject road.

Sometime in 1997, Sps. Rana elevated and cemented a portion of the subject road that runs between the
Rana and Wong-Ong properties (subject portion) in order to level the said portion with their gate. They
likewise backfilled a portion of the perimeter fence separating the Rana and Uy properties without
erecting a retaining wall that would hold the weight of the added filling materials.

The matter was referred to the Office of the Barangay Captain of Lahug as well as the Office of the Building
Official of Cebu City (OBO), but to no avail.

Wong, et al. then filed a Complaint for Abatement of Nuisance with Damages against Sps. Rana before the
RTC, seeking to: (a) declare the subject portion as a nuisance which affected the ingress and egress of
Wong and Sps. Ong to their lot; (b) declare the subject backfilling as a nuisance; (c) compel Sps. Rana to
restore the subject portion to its original condition; (d) compel Sps. Rana to remove the backfilling
materials along Sps. Uy’s perimeter fence and repair the damage to the fence; and (e) pay moral and
exemplary damages, attorney’s fees, litigation expenses, and costs of suit.

Issue:

Whether or not the RTC errs in (a) not finding Wong and Sps. Uy guilty of malice and bad faith both in
instituting the Civil Cases and in erroneously implementing the November 27, 1997 Order, and (b) failing
or refusing to grant the reliefs prayed for. (Sps. Rana)
Whether or not the RTC errs in (a) applying the in pari delicto doctrine against the parties and failing to
abate the nuisance, and (b) not finding Sps. Rana guilty of bad faith in instituting the Civil Cases and
ordering them to pay damages. (Wong, et. al)

Ruling:

The petitions are partly meritorious.

For Abatement of Nuisance and Damages.

Under Article 694 of the Civil Code, a nuisance is defined as "any act, omission, establishment, business,
condition of property, or anything else which: (1) Injures or endangers the health or safety of others; or
(2) Annoys or offends the senses; or (3) Shocks, defies or disregards decency or morality; or (4) Obstructs
or interferes with the free passage of any public highway or street, or any body of water; or (5) Hinders
or impairs the use of property." Based on case law, however, the term "nuisance" is deemed to be "so
comprehensive that it has been applied to almost all ways which have interfered with the rights of the
citizens, either in person, property, the enjoyment of his property, or his comfort."

Article 695 of the Civil Code classifies nuisances with respect to the object or objects that they affect. In
this regard, a nuisance may either be: (a) a public nuisance (or one which "affects a community or
neighborhood or any considerable number of persons, although the extent of the annoyance, danger or
damage upon individuals may be unequal"); or (b) a private nuisance (or one "that is not included in the
foregoing definition" [or, as case law puts it, one which "violates only private rights and produces damages
to but one or a few persons"]).

Jurisprudence further classifies nuisances in relation to their legal susceptibility to summary abatement
(that is, corrective action without prior judicial permission). In this regard, a nuisance may either be: (a) a
nuisance per se (or one which "affects the immediate safety of persons and property and may be
summarily abated under the undefined law of necessity"); or (b) a nuisance per accidens (or that which
"depends upon certain conditions and circumstances, and its existence being a question of fact, it cannot
be abated without due hearing thereon in a tribunal authorized to decide whether such a thing does in
law constitute a nuisance.")

It is a standing jurisprudential rule that unless a nuisance is a nuisance per se, it may not be summarily
abated. Aside from the remedy of summary abatement which should be taken under the parameters
stated in Articles 704 (for public nuisances) and 706 (for private nuisances) of the Civil Code, a private
person whose property right was invaded or unreasonably interfered with by the act, omission,
establishment, business or condition of the property of another may file a civil action to recover personal
damages. Abatement may be judicially sought through a civil action therefor if the pertinent requirements
under the Civil Code for summary abatement, or the requisite that the nuisance is a nuisance per se, do
not concur. To note, the remedies of abatement and damages are cumulative; hence, both may be
demanded.

With respect to the elevated and cemented subject portion, the Court finds that the same is not a nuisance
per se. By its nature, it is not injurious to the health or comfort of the community. It was built primarily to
facilitate the ingress and egress of Sps. Rana from their house which was admittedly located on a higher
elevation than the subject road and the adjoining Uy and Wong-Ong properties. Since the subject portion
is not a nuisance per se (but actually a nuisance per accidens as will be later discussed) it cannot be
summarily abated.

As such, Wong, et al.’s demolition of Sps. Rana’s subject portion, which was not sanctioned under the
RTC’s November 27, 1997 Order, remains unwarranted.