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    Festejo vs. Fernando, GR No. L-5156 CONCEPTION

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    rose ann bulan

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    Festejo vs. Fernando, GR No. L-5156 CONCEPTION

    Uploaded by

    rose ann bulan
    6 views1 page

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    6 views1 page

    Festejo vs. Fernando, GR No. L-5156 CONCEPTION

    Uploaded by

    rose ann bulan

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    © All Rights Reserved
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    of 1

    CONCEPCION, J.

    , dissenting:

    To my mind, the allegations of the complaint lead to no other conclusion than that appellee Isaias
    Fernando is a party in this case, not in his personal capacity, but as an officer of the Government.
    According to said pleading the defendant is "Isaias Fernando, Director, Bureau of Public Works."
    Moreover, in paragraphs 4 and 5 of the complaint, it is alleged:

    4. That the defendant as Director of the Bureau of Public Works, is in charge of irrigation
    projects and systems, and the official responsible for the construction of irrigation system in
    the Philippines;

    5. That the defendant, as Director of the Bureau of Public Works, without authority obtained
    first from the Court of First Instance of Ilocos Sur, without obtaining first a right of way, and
    without the consent and knowledge of the plaintiff, and against her express objection,
    unlawfully took possession of portions of the three parcels of land described above, and
    caused an irrigation canal to be constructed on the portion of the three parcels of land on or
    about the month of February 1951 the aggregate area being 24,179 square meters to the
    damage and prejudice of the plaintiff. (Emphasis supplied.)

    The emphasis thus placed upon the allegation that the acts complained of were performed by said
    defendant "as Director of the Bureau of Public Works," clearly shows that the designation of his
    office was included in the title of the case to indicate that he was being sued in his official capacity.
    This conclusion is bolstered up by the fact that, among other things, plaintiff prays, in the complaint,
    for a judgment

    Ordering the defendant to return or caused to be returned the possession of the portions of
    land unlawfully occupied and appropriated in the aggregate area of 24,179 square meters
    and to return the land to its former condition under the expense of the defendant. (Paragraph
    a, of the complaint).

    We take judicial notice of the fact that the irrigation projects and system reffered to in the complaint
    — of which the defendant, Isaias Fernando, according to the same pleading, is "in charge" and for
    which he is "responsible" as Director of the Bureau of Public Works — are established and operated
    with public funds, which pursuant to the Constitution, must be appropriated by law. Irrespective of
    the manner in which the construction may have been undertaken by the Bureau of Public Works, the
    system or canal is, therefore, a property of the Government. Consequently, in praying that
    possession of the portions of land occupied by the irrigation canal involved in the present case be
    returned to plaintiff therein, and that said land be restored to its former condition, plaintiff seeks to
    divest the Government of its possession of said irrigation canal, and, what is worse, to cause said
    property of the Government to be removed or destroyed. As held in Syquia vs. Lopez (47 Off. Gaz.,
    665), the Government is, accordingly, "the real party in interest as defendant" in the case at bar. In
    other words, the same partakes of the nature of a suit against the state and may not be maintained
    without its consent.

    Hence I am constrained to dissent.

    Bengzon, J., concurs.

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