THIRD DIVISION

January 11, 2016

G.R. No. 188213

NATIVIDAD C. CRUZ and BENJAMIN DELA CRUZ, Petitioners,

DECISION

PERALTA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to
ahnul and set aside the Court of Appeals Decision1 dated March 31, 2008 in CA-G.R. SP. No. 104474.
The appellate court reversed and set aside the earlier decision of the Office of the Ombudsman dismissing
the complaint filed against petitioners.

Below are the facts of the case.

Petitioner Natividad C. Cruz (Cruz) was Punong Barangay or Chairperson of Barangay 848, Zone 92,
City of Manila.2 On November 10, 2006, around five o'clock in the afternoon, and along Central Street,
Pandacan, Manila, within the vicinity of her barangay, she allegedly confronted persons playing
basketball with the following statements:

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!3

Then, she allegedly gave an order to the other petitioner, Barangay Tanod Benjamin dela Cruz (Dela
Cruz), to destroy the basketball ring by cutting it up with a hacksaw which Dela Cruz promptly complied
with, thus, rendering the said basketball court unusable.4

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)5 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. (PHC) and its president Priscila Ilao (Ilao). In the
complaint, they alleged that PHC, a non-stock, non-profit civic organization engaged in "health,
infrastructure, sports and other so-called poverty alleviation activities" in the Pandacan area of Manila, is
the group that had donated, administered and operated the subject basketball court for the Pandacan
community until its alleged destruction by petitioners.6

The complaint averred that the damage caused by petitioners was in the amount of around P2,000.00. It
was supported by the affidavits of ten (10) members of PHC who allegedly witnessed the destruction.
Meanwhile, respondent Ilao added that the acts of petitioner Cruz, the Barangay Chairperson, of ordering
the cutting up of the basketball ring and uttering abusive language were "unwarranted and unbecoming of
a public official."7
In answer to the complaint, 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.
Cruz maintained that the court's users never heeded the barangay officials' efforts to pacify them and
when the basketball ring was once padlocked, such was just removed at will while members of the
complainants' club continued playing. When Cruz asked for the PHC to return the steel bar and padlock,
the request was simply ignored, thus, prompting her to order Dela Cruz to destroy the basketball ring. The
destruction was allegedly also a response to the ongoing clamor of residents to stop the basketball
games.8 Cruz denied allegations that she shouted invectives at the PHC members. In support of her
answer, Cruz attached copies of the complaints, a "certification" and letters of barangay residents asking
for a solution to the problems arising from the disruptive activities on the said playing venue.9

After the parties' submission of their respective Position Papers,10 the Office of the Ombudsman rendered
its Decision11 dated April 26, 2007dismissing the complaint filed by Ilao, et al. The Ombudsman found
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.12 It found the act to be a mere response to the
clamor of constituents.13 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.14 Neither did the office
give credence to the allegation that Cruz uttered invectives against the complainants' witnesses, noting
that the said witnesses are tainted by their personal animosity against the barangay officials.15

After the Ombudsman's ruling dismissing the complaint filed against Cruz and Dela Cruz, the
complainants Ilao, et al. filed a petition for review before the Court of Appeals praying for the latter court
to nullify the Ombudsman's decision.16 The petition's thesis was that any actions in furtherance of the
community's welfare must be approved by ordinance and that unless a thing is a nuisance per se, such a
thing may not be abated via an ordinance and extrajudicially.17

Commenting on the petition for review, the Office of the Ombudsman, through the Office of the Solicitor
General, averred that Section 389 of the Local Government Code, which defines the powers, duties and
functions of the punong barangay, among which are the power to enforce all laws and ordinances
applicable within the barangay and the power to maintain public order in the barangay and, in pursuance
thereof, to assist the city or municipal mayor and the sanggunian members in the performance of their
duties and functions, does not require an ordinance for the said official to perform said functions.18 The
acts were also in pursuance of the promotion of the general welfare of the community, as mentioned in
Section 16 of the Code.19

In its assailed Decision dated March 31, 2008, the Court of Appeals reversed and set aside the decision of
the Office of the Ombudsman. The appellate court found petitioner Natividad C. Cruz liable for conduct
prejudicial to the best interest of the service and penalized her with a suspension of six (6) months and
one (1) day, while it reprimanded the other petitioner Benjamin dela Cruz, and also warned both officials
that a future repetition of the same or similar acts will be dealt with more severely.

The appellate court sustained the contentions of Ilao, et al. 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.20 It held Cruz to be without the power to declare a thing
a nuisance unless it is a nuisance per se.21 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.22

A motion for reconsideration filed by Cruz and Dela Cruz was likewise denied by the appellate
court.23 Hence, they filed this petition.

Petitioners maintain that they acted merely with the intention to regain free passage of people and
vehicles over the street and restore the peace, health and sanitation of those affected by the basketball
court. Cruz, in particular, asserts that she merely abated a public nuisance which she claimed was within
her power as barangay chief executive to perform and was part of her duty to maintain peace and order.24

We deny the petition.

Under normal circumstances, this Court would not disturb the findings of fact of the Office of the
Ombudsman when they are supported by substantial evidence.25 However, We make an exception of the
case at bar because the findings of fact of the Ombudsman and the Court of Appeals widely differ.26

It is held that the administrative offense of conduct prejudicial to the interest of the service is committed
when the questioned conduct tarnished the image and integrity of the officer's public office; the conduct
need not be related or connected to the public officer's official functions for the said officer to be meted
the corresponding penalty.27 The basis for such liability is Republic Act No. 6713, or the Code of Conduct
and Ethical Standards for Public Officials and Employees, particularly Section 4 (c) thereof, which
ordains that public officials and employees shall at all times respect the rights of others, and shall refrain
from doing acts contrary to public safety and public interest.28 In one case, this Court also stated that
the Machiavellian principle that "the end justifies the means" has no place in government service, which
thrives on the rule of law, consistency and stability.29

For these reasons, in the case at bar, We agree with the appellate court that the petitioners’ actions, though
well-intentioned, were improper and done in excess of what was required by the situation and fell short of
the aforementioned standards of behavior for public officials.

It is clear from the records that petitioners indeed cut or sawed in half the subject basketball ring, which
resulted in the destruction of the said equipment and rendered it completely unusable.30 Petitioners also
moved instantaneously and did not deliberate nor consult with the Sangguniang Barangay prior to
committing the subject acts; neither did they involve any police or law enforcement agent in their actions.
They acted while tempers were running high as petitioner Cruz, the Barangay Chairperson, became
incensed at the removal of the steel bar and padlock that was earlier used to close access to the ring and at
the inability or refusal of respondents' group to return the said steel bar and padlock to her as she had
ordered.

The destructive acts of petitioners, however, find no legal sanction. This Court has ruled time and again
that no public official is above the law.31 The Court of Appeals correctly ruled that although petitioners
claim to have merely performed an abatement of a public nuisance, the same was done summarily while
failing to follow the proper procedure therefor and for which, petitioners must be held administratively
liable.

Prevailing jurisprudence holds that unless a nuisance is a nuisance per se, it may not be summarily
abated.32
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."33 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.34

A nuisance is classified in two ways: (1) according to the object it affects; or (2) according to its
susceptibility to summary abatement.1âwphi1

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."35

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;36 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;"37 it may only be so proven in a hearing conducted for that purpose and may
not be summarily abated without judicial intervention.38

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.39 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.40

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.

Under Article 700 of the Civil Code, the abatement, including one without judicial proceedings, of a
public nuisance is the responsibility of the district health officer. Under Article 702 of the Code, the
district health officer is also the official who shall determine whether or not abatement, without judicial
proceedings, is the best remedy against a public nuisance. The two articles do not mention that the chief
executive of the local government, like the Punong Barangay, is authorized as the official who can
determine the propriety of a summary abatement.
Further, both petitioner Cruz, as Punong Barangay, and petitioner Dela Cruz, as Barangay Tanod, claim to
have acted in their official capacities in the exercise of their powers under the general welfare clause of
the Local Government Code. However, petitioners could cite no barangay nor city ordinance that would
have justified their summary abatement through the exercise of police powers found in the said clause. No
barangay nor city ordinance was violated; neither was there one which specifically declared the said
basketball ring as a nuisance per se that may be summarily abated. Though it has been held that a
nuisance per se may be abated via an ordinance, without judicial proceedings,41 We add that, in the case
at bar, petitioners were required to justify their abatement via such an ordinance because the power they
claim to have exercised – the police power under the general welfare clause – is a power exercised by the
government mainly through its legislative, and not the executive, branch. The prevailing jurisprudence is
that local government units such as the provinces, cities, municipalities and barangays exercise police
power through their respective legislative bodies.42

The general welfare clause provides for the exercise of police power for the attainment or maintenance of
the general welfare of the community. The power, however, is exercised by the government through its
legislative branch by the enactment of laws regulating those and other constitutional and civil
rights.43 Jurisprudence defines police power as the plenary power vested in the legislature to make
statutes and ordinances to promote the health, morals, peace, education, good order or safety and general
welfare of the people.44 The Latin maxim is salus populi est suprema lex (the welfare of the people is the
supreme law).45 Police power is vested primarily with the national legislature, which may delegate the
same to local governments through the enactment of ordinances through their legislative bodies
(the sanggunians).46 The so-called general welfare clause, provided for in Section 16 of the Local
Government Code, provides for such delegation of police power, to wit:

Section 16. General Welfare. Every local government unit shall exercise the powers expressly granted,
those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its
efficient and effective governance, and those which are essential to the promotion of the general welfare.
Within their respective territorial jurisdictions, local government units shall ensure and support, among
other things, the preservation and enrichment of culture, promote health and safety, enhance the right of
the people to a balanced ecology, encourage and support the development of appropriate and self-reliant
scientific and technological capabilities, improve public morals, enhance economic prosperity and social
justice, promote full employment among their residents, maintain peace and order, and preserve the
comfort and convenience of their inhabitants.

Flowing from this delegated police power of local governments, a local government unit like Barangay
848, Zone 92 in which petitioners were public officials, exercises police power through its legislative
body, in this case, its Sangguniang Barangay.47 Particularly, the ordinances passed by
the sanggunian partly relate to the general welfare of the barangay, as also provided for by the Local
Government Code as follows:

Section 391. Powers, Duties, and Functions. –

(a) The sangguniang barangay, as the legislative body of the barangay, shall:

(1) Enact ordinances as may be necessary to discharge the responsibilities conferred

Section 389. Chief Executive: Powers, Duties, and Functions. –

(a) The punong barangay, as the chief executive of the barangay government, shall exercise such
powers and perform such duties and functions, as provided by this Code and other laws.

(b) For efficient, effective and economical governance, the purpose of which is the general
welfare of the barangay and its inhabitants pursuant to Section 16 of this Code, the punong
barangay shall:

(1) Enforce all laws and ordinances which are applicable within the barangay;

xxxx

(3) Maintain public order in the barangay and, in pursuance thereof, assist the city or
municipal mayor and the sanggunian members in the performance of their duties and
functions;

xxxx

(14) Promote the general welfare of the barangay;

(15) Exercise such other powers and perform such other duties and functions as may
be prescribed by law or ordinance.48

Clearly, the complete destruction of the basketball ring by the petitioners is justified neither by law or
ordinance nor even by equity or necessity, which makes the act illegal and petitioners liable. And even as
an action to maintain public order, it was done excessively and was unjustified. Where a less damaging
action, such as the mere padlocking, removal or confiscation of the ring would have sufficed, petitioners
resorted to the drastic measure of completely destroying and rendering as unusable the said ring, which
was a private property, without due process. Such an act went beyond what the law required and, in being
so, it tarnished the image and integrity of the offices held by petitioners and diminished the public's
confidence in the legal system. Petitioners who were public officials should not have been too earnest at
what they believed was an act of restoring peace and order in the community if in the process they would
end up disturbing it themselves. They cannot break the law that they were duty-bound to enforce.
Although the Court bestows sympathy to the numerous constituents who allegedly complained against the
basketball court to petitioners, it cannot legally agree with the methods employed by the said officials.
Their good intentions do not justify the destruction of private property without a legal warrant, because
the promotion of the general welfare is not antithetical to the preservation of the rule of law.49 Unlike the
examples cited earlier of a mad dog on the loose, pornography on display or a filthy restaurant, which all
pose immediate danger to the public and, therefore, could be addressed by anyone on sight, a basketball
ring as a nuisance poses no such urgency that could have prevented petitioners from exercising any form
of deliberation or circumspection before acting on the same.

Petitioners do not claim to have acted in their private capacities but in their capacities as public officials,
thus, they are held administratively liable for their acts. And even in their capacities as private individuals
who may have abated a public nuisance, petitioners come up short of the legal requirements. They do not
claim to have complied with any of the requisites laid down in Article 704 of the Civil Code, to wit:

Art. 704. Any private person may abate a public nuisance which is specially injurious to him by
removing, or if necessary, by destroying the thing which constitutes the same, without committing a
breach of the peace, or doing unnecessary injury. But it is necessary:

(1) That demand be first made upon the owner or possessor of the property to abate the nuisance;

(2) That such demand has been rejected;

(3) That the abatement be approved by the district health officer and executed with the assistance
of the local police; and

(4) That the value of the destruction does not exceed three thousand pesos.

WHEREFORE, premises considered, the petition is DENIED. The Court of Appeals Decision dated
March 31, 2008 in CA-G.R. SP. No. 104474 is AFFIRMED.

SO ORDERED.