Property in Relation To The Person Where It Belongs

Property Law | Property in Relation to the Person Where it Belongs | Page 1 of 40
G.R. No. 92013 July 25, 1990

SALVADOR H. LAUREL, petitioner,
vs.
RAMON GARCIA, as head of the Asset Privatization Trust, RAUL
MANGLAPUS, as Secretary of Foreign Affairs, and CATALINO
MACARAIG, as Executive Secretary, respondents.
G.R. No. 92047 July 25, 1990
DIONISIO S. OJEDA, petitioner,
vs.
EXECUTIVE SECRETARY MACARAIG, JR., ASSETS
PRIVATIZATION TRUST CHAIRMAN RAMON T. GARCIA,
AMBASSADOR RAMON DEL ROSARIO, et al., as members of the
PRINCIPAL AND BIDDING COMMITTEES ON THE
UTILIZATION/DISPOSITION PETITION OF PHILIPPINE
GOVERNMENT PROPERTIES IN JAPAN,respondents.
Arturo M. Tolentino for petitioner in 92013.
explain the proceedings which effectively prevent the

participation of Filipino citizens and entities in the bidding
process.
The oral arguments in G.R. No. 92013, Laurel v. Garcia, et
al. were heard by the Court on March 13, 1990. After G.R. No.
92047, Ojeda v. Secretary Macaraig, et al. was filed, the
respondents were required to file a comment by the Court's
resolution dated February 22, 1990. The two petitions were
consolidated on March 27, 1990 when the memoranda of the
parties in the Laurel case were deliberated upon.
The Court could not act on these cases immediately because the
respondents filed a motion for an extension of thirty (30) days to
file comment in G.R. No. 92047, followed by a second motion for
an extension of another thirty (30) days which we granted on May
8, 1990, a third motion for extension of time granted on May 24,
1990 and a fourth motion for extension of time which we granted
on June 5, 1990 but calling the attention of the respondents to
the length of time the petitions have been pending. After the
comment was filed, the petitioner in G.R. No. 92047 asked for
thirty (30) days to file a reply. We noted his motion and resolved
to decide the two (2) cases.
GUTIERREZ, JR., J.:

I
These are two petitions for prohibition seeking to enjoin
respondents, their representatives and agents from proceeding
with the bidding for the sale of the 3,179 square meters of land at
306 Roppongi, 5-Chome Minato-ku Tokyo, Japan scheduled on
February 21, 1990. We granted the prayer for a temporary
restraining order effective February 20, 1990. One of the
petitioners (in G.R. No. 92047) likewise prayes for a writ of
mandamus to compel the respondents to fully disclose to the
public the basis of their decision to push through with the sale of
the Roppongi property inspire of strong public opposition and to
The subject property in this case is one of the four (4) properties
in Japan acquired by the Philippine government under the
Reparations Agreement entered into with Japan on May 9, 1956,
the other lots being:
(1) The Nampeidai Property at 11-24 Nampeidai-machi, Shibuyaku, Tokyo which has an area of approximately 2,489.96 square
meters, and is at present the site of the Philippine Embassy
Chancery;

(2) The Kobe Commercial Property at 63 Naniwa-cho, Kobe, with
an area of around 764.72 square meters and categorized as a
commercial lot now being used as a warehouse and parking lot
for the consulate staff; and
(3) The Kobe Residential Property at 1-980-2 Obanoyama-cho,
Shinohara, Nada-ku, Kobe, a residential lot which is now vacant.
The properties and the capital goods and services procured from
the Japanese government for national development projects are
part of the indemnification to the Filipino people for their losses
in life and property and their suffering during World War II.
The Reparations Agreement provides that reparations valued at
$550 million would be payable in twenty (20) years in accordance
with annual schedules of procurements to be fixed by the
Philippine and Japanese governments (Article 2, Reparations
Agreement). Rep. Act No. 1789, the Reparations Law, prescribes
the national policy on procurement and utilization of reparations
and development loans. The procurements are divided into those
for use by the government sector and those for private parties in
projects as the then National Economic Council shall determine.
Those intended for the private sector shall be made available by
sale to Filipino citizens or to one hundred (100%) percent
Filipino-owned entities in national development projects.
The Roppongi property was acquired from the Japanese
government under the Second Year Schedule and listed under
the heading "Government Sector", through Reparations Contract
No. 300 dated June 27, 1958. The Roppongi property consists of
the land and building "for the Chancery of the Philippine
Embassy" (Annex M-D to Memorandum for Petitioner, p. 503). As
intended, it became the site of the Philippine Embassy until the
latter was transferred to Nampeidai on July 22, 1976 when the
Roppongi building needed major repairs. Due to the failure of our
government to provide necessary funds, the Roppongi property

has remained undeveloped since that time.
A proposal was presented to President Corazon C. Aquino by
former Philippine Ambassador to Japan, Carlos J. Valdez, to
make the property the subject of a lease agreement with a
Japanese firm - Kajima Corporation which shall construct two
(2) buildings in Roppongi and one (1) building in Nampeidai and
renovate the present Philippine Chancery in Nampeidai. The
consideration of the construction would be the lease to the
foreign corporation of one (1) of the buildings to be constructed
in Roppongi and the two (2) buildings in Nampeidai. The other
building in Roppongi shall then be used as the Philippine
Embassy Chancery. At the end of the lease period, all the three
leased buildings shall be occupied and used by the Philippine
government. No change of ownership or title shall occur. (See
Annex "B" to Reply to Comment) The Philippine government
retains the title all throughout the lease period and thereafter.
However, the government has not acted favorably on this
proposal which is pending approval and ratification between the
parties. Instead, on August 11, 1986, President Aquino created a
committee to study the disposition/utilization of Philippine
government properties in Tokyo and Kobe, Japan through
Administrative Order No. 3, followed by Administrative Orders
Numbered 3-A, B, C and D.
On July 25, 1987, the President issued Executive Order No. 296
entitling non-Filipino citizens or entities to avail of separations'
capital goods and services in the event of sale, lease or
disposition. The four properties in Japan including the Roppongi
were specifically mentioned in the first "Whereas" clause.
Amidst opposition by various sectors, the Executive branch of
the government has been pushing, with great vigor, its decision
to sell the reparations properties starting with the Roppongi lot.

The property has twice been set for bidding at a minimum floor
price of $225 million. The first bidding was a failure since only
one bidder qualified. The second one, after postponements, has
not yet materialized. The last scheduled bidding on February 21,
1990 was restrained by his Court. Later, the rules on bidding
were changed such that the $225 million floor price became
merely a suggested floor price.
The Court finds that each of the herein petitions raises distinct
issues. The petitioner in G.R. No. 92013 objects to the alienation
of the Roppongi property to anyone while the petitioner in G.R.
No. 92047 adds as a principal objection the alleged unjustified
bias of the Philippine government in favor of selling the property
to non-Filipino citizens and entities. These petitions have been
consolidated and are resolved at the same time for the objective
is the same - to stop the sale of the Roppongi property.
The petitioner in G.R. No. 92013 raises the following issues:
(1) Can the Roppongi property and others of its kind be alienated
by the Philippine Government?; and
(2) Does the Chief Executive, her officers and agents, have the
authority and jurisdiction, to sell the Roppongi property?
Petitioner Dionisio Ojeda in G.R. No. 92047, apart from
questioning the authority of the government to alienate the
Roppongi property assails the constitutionality of Executive
Order No. 296 in making the property available for sale to nonFilipino citizens and entities. He also questions the bidding
procedures of the Committee on the Utilization or Disposition of
Philippine Government Properties in Japan for being
discriminatory against Filipino citizens and Filipino-owned
entities by denying them the right to be informed about the
bidding requirements.
II
In G.R. No. 92013, petitioner Laurel asserts that the Roppongi
property and the related lots were acquired as part of the
reparations from the Japanese government for diplomatic and
consular use by the Philippine government. Vice-President
Laurel states that the Roppongi property is classified as one of
public dominion, and not of private ownership under Article 420
of the Civil Code (See infra).
The petitioner submits that the Roppongi property comes under
"property intended for public service" in paragraph 2 of the
above provision. He states that being one of public dominion, no
ownership by any one can attach to it, not even by the State. The
Roppongi and related properties were acquired for "sites for
chancery, diplomatic, and consular quarters, buildings and other
improvements" (Second Year Reparations Schedule). The
petitioner states that they continue to be intended for a
necessary service. They are held by the State in anticipation of
an opportune use. (Citing 3 Manresa 65-66). Hence, it cannot be
appropriated, is outside the commerce of man, or to put it in
more simple terms, it cannot be alienated nor be the subject
matter of contracts (Citing Municipality of Cavite v. Rojas, 30
Phil. 20 [1915]). Noting the non-use of the Roppongi property at
the moment, the petitioner avers that the same remains property
of public dominion so long as the government has not used it for
other purposes nor adopted any measure constituting a removal
of its original purpose or use.
The respondents, for their part, refute the petitioner's contention
by saying that the subject property is not governed by our Civil
Code but by the laws of Japan where the property is located.
They rely upon the rule of lex situs which is used in determining
the applicable law regarding the acquisition, transfer and
devolution of the title to a property. They also invoke Opinion No.

21, Series of 1988, dated January 27, 1988 of the Secretary of
Justice which used the lex situs in explaining the inapplicability
of Philippine law regarding a property situated in Japan.
order contravenes the constitutional mandate to conserve and

develop the national patrimony stated in the Preamble of the
1987 Constitution. It also allegedly violates:
The respondents add that even assuming for the sake of

argument that the Civil Code is applicable, the Roppongi
property has ceased to become property of public dominion. It
has become patrimonial property because it has not been used
for public service or for diplomatic purposes for over thirteen
(13) years now (Citing Article 422, Civil Code) and because
the intention by the Executive Department and the Congress to
convert it to private use has been manifested by overt acts, such
as, among others: (1) the transfer of the Philippine Embassy to
Nampeidai (2) the issuance of administrative orders for the
possibility of alienating the four government properties in Japan;
(3) the issuance of Executive Order No. 296; (4) the enactment by
the Congress of Rep. Act No. 6657 [the Comprehensive Agrarian
Reform Law] on June 10, 1988 which contains a provision stating
that funds may be taken from the sale of Philippine properties in
foreign countries; (5) the holding of the public bidding of the
Roppongi property but which failed; (6) the deferment by the
Senate in Resolution No. 55 of the bidding to a future date; thus
an acknowledgment by the Senate of the government's intention
to remove the Roppongi property from the public service
purpose; and (7) the resolution of this Court dismissing the
petition in Ojeda v. Bidding Committee, et al., G.R. No. 87478
which sought to enjoin the second bidding of the Roppongi
property scheduled on March 30, 1989.
(1) The reservation of the ownership and acquisition of alienable

lands of the public domain to Filipino citizens. (Sections 2 and 3,
Article XII, Constitution; Sections 22 and 23 of Commonwealth
Act 141).itc-asl
III
In G.R. No. 94047, petitioner Ojeda once more asks this Court to
rule on the constitutionality of Executive Order No. 296. He had
earlier filed a petition in G.R. No. 87478 which the Court
dismissed on August 1, 1989. He now avers that the executive
(2) The preference for Filipino citizens in the grant of rights,

privileges and concessions covering the national economy and
patrimony (Section 10, Article VI, Constitution);
(3) The protection given to Filipino enterprises against unfair
competition and trade practices;
(4) The guarantee of the right of the people to information on all
matters of public concern (Section 7, Article III, Constitution);
(5) The prohibition against the sale to non-Filipino citizens or
entities not wholly owned by Filipino citizens of capital goods
received by the Philippines under the Reparations Act (Sections
2 and 12 of Rep. Act No. 1789); and
(6) The declaration of the state policy of full public disclosure of
all transactions involving public interest (Section 28, Article III,
Constitution).
Petitioner Ojeda warns that the use of public funds in the
execution of an unconstitutional executive order is a
misapplication of public funds He states that since the details of
the bidding for the Roppongi property were never publicly
disclosed until February 15, 1990 (or a few days before the
scheduled bidding), the bidding guidelines are available only in
Tokyo, and the accomplishment of requirements and the

selection of qualified bidders should be done in Tokyo,
interested Filipino citizens or entities owned by them did not
have the chance to comply with Purchase Offer Requirements on
the Roppongi. Worse, the Roppongi shall be sold for a minimum
price of $225 million from which price capital gains tax under
Japanese law of about 50 to 70% of the floor price would still be
deducted.
IV
The petitioners and respondents in both cases do not dispute
the fact that the Roppongi site and the three related properties
were through reparations agreements, that these were assigned
to the government sector and that the Roppongi property itself
was specifically designated under the Reparations Agreement to
house the Philippine Embassy.
The nature of the Roppongi lot as property for public service is
expressly spelled out. It is dictated by the terms of the
Reparations Agreement and the corresponding contract of
procurement which bind both the Philippine government and the
Japanese government.
There can be no doubt that it is of public dominion unless it is
convincingly shown that the property has become patrimonial.
This, the respondents have failed to do.
As property of public dominion, the Roppongi lot is outside the
commerce of man. It cannot be alienated. Its ownership is a
special collective ownership for general use and enjoyment, an
application to the satisfaction of collective needs, and resides in
the social group. The purpose is not to serve the State as a
juridical person, but the citizens; it is intended for the common
and public welfare and cannot be the object of appropration.
(Taken from 3 Manresa, 66-69; cited in Tolentino, Commentaries

on the Civil Code of the Philippines, 1963 Edition, Vol. II, p. 26).
The applicable provisions of the Civil Code are:
ART. 419. Property is either of public dominion or
of private ownership.
ART. 420. The following things are property of
public dominion
(1) Those intended for public use, such as roads,
canals, rivers, torrents, ports and bridges
constructed by the State, banks shores
roadsteads, and others of similar character;
(2) Those which belong to the State, without being
for public use, and are intended for some public
service or for the development of the national
wealth.
ART. 421. All other property of the State, which is
not of the character stated in the preceding article,
is patrimonial property.
The Roppongi property is correctly classified under paragraph 2
of Article 420 of the Civil Code as property belonging to the State
and intended for some public service.
Has the intention of the government regarding the use of the
property been changed because the lot has been Idle for some
years? Has it become patrimonial?
The fact that the Roppongi site has not been used for a long time
for actual Embassy service does not automatically convert it to

patrimonial property. Any such conversion happens only if the
property is withdrawn from public use (Cebu Oxygen and
Acetylene Co. v. Bercilles, 66 SCRA 481 [1975]). A property
continues to be part of the public domain, not available for
private appropriation or ownership until there is a formal
declaration on the part of the government to withdraw it from
being such (Ignacio v. Director of Lands, 108 Phil. 335 [1960]).
The respondents enumerate various pronouncements by
concerned public officials insinuating a change of intention. We
emphasize, however, that an abandonment of the intention to use
the Roppongi property for public service and to make it
patrimonial property under Article 422 of the Civil Code must be
definiteAbandonment cannot be inferred from the non-use alone
specially if the non-use was attributable not to the government's
own deliberate and indubitable will but to a lack of financial
support to repair and improve the property (See Heirs of Felino
Santiago v. Lazaro, 166 SCRA 368 [1988]). Abandonment must be
a certain and positive act based on correct legal premises.
A mere transfer of the Philippine Embassy to Nampeidai in 1976
is not relinquishment of the Roppongi property's original
purpose. Even the failure by the government to repair the
building in Roppongi is not abandonment since as earlier stated,
there simply was a shortage of government funds. The recent
Administrative Orders authorizing a study of the status and
conditions of government properties in Japan were merely
directives for investigation but did not in any way signify a clear
intention to dispose of the properties.
Executive Order No. 296, though its title declares an "authority to
sell", does not have a provision in its text expressly authorizing
the sale of the four properties procured from Japan for the
government sector. The executive order does not declare that the
properties lost their public character. It merely intends to make
the properties available to foreigners and not to Filipinos

alone in case of a sale, lease or other disposition. It merely
eliminates the restriction under Rep. Act No. 1789 that
reparations goods may be sold only to Filipino citizens and one
hundred (100%) percent Filipino-owned entities. The text of
Executive Order No. 296 provides:
Section 1. The provisions of Republic Act No. 1789,
as amended, and of other laws to the contrary
notwithstanding, the above-mentioned properties
can be made available for sale, lease or any other
manner of disposition to non-Filipino citizens or to
entities owned by non-Filipino citizens.
Executive Order No. 296 is based on the wrong premise or
assumption that the Roppongi and the three other properties
were earlier converted into alienable real properties. As earlier
stated, Rep. Act No. 1789 differentiates the procurements for the
government sector and the private sector (Sections 2 and 12,
Rep. Act No. 1789). Only the private sector properties can be sold
to end-users who must be Filipinos or entities owned by
Filipinos. It is this nationality provision which was amended by
Executive Order No. 296.
Section 63 (c) of Rep. Act No. 6657 (the CARP Law) which
provides as one of the sources of funds for its implementation,
the proceeds of the disposition of the properties of the
Government in foreign countries, did not withdraw the Roppongi
property from being classified as one of public dominion when it
mentions Philippine properties abroad. Section 63 (c) refers to
properties which are alienable and not to those reserved for
public use or service. Rep Act No. 6657, therefore, does not
authorize the Executive Department to sell the Roppongi
property. It merely enumerates possible sources of future
funding to augment (as and when needed) the Agrarian Reform

Fund created under Executive Order No. 299. Obviously any
property outside of the commerce of man cannot be tapped as a
source of funds.
dispose of property belonging to the State. And the validity of the

procedures adopted to effect its sale. This is governed by
Philippine Law. The rule of lex situs does not apply.
The respondents try to get around the public dominion character

of the Roppongi property by insisting that Japanese law and not
our Civil Code should apply.
The assertion that the opinion of the Secretary of Justice sheds

light on the relevance of the lex situs rule is misplaced. The
opinion does not tackle the alienability of the real properties
procured through reparations nor the existence in what body of
the authority to sell them. In discussing who are capable of
acquiring the lots, the Secretary merely explains that it is the
foreign law which should determine who can acquire the
properties so that the constitutional limitation on acquisition of
lands of the public domain to Filipino citizens and entities wholly
owned by Filipinos is inapplicable. We see no point in belaboring
whether or not this opinion is correct. Why should we discuss
who can acquire the Roppongi lot when there is no showing that
it can be sold?
It is exceedingly strange why our top government officials, of all

people, should be the ones to insist that in the sale of extremely
valuable government property, Japanese law and not Philippine
law should prevail. The Japanese law - its coverage and effects,
when enacted, and exceptions to its provision is not
presented to the Court It is simply asserted that the lex loci rei
sitae or Japanese law should apply without stating what that law
provides. It is a ed on faith that Japanese law would allow the
sale.
We see no reason why a conflict of law rule should apply when
no conflict of law situation exists. A conflict of law situation
arises only when: (1) There is a dispute over the title or
ownership of an immovable, such that the capacity to take and
transfer immovables, the formalities of conveyance, the essential
validity and effect of the transfer, or the interpretation and effect
of a conveyance, are to be determined (See Salonga,Private
International Law, 1981 ed., pp. 377-383); and (2) A foreign law on
land ownership and its conveyance is asserted to conflict with a
domestic law on the same matters. Hence, the need to determine
which law should apply.
The subsequent approval on October 4, 1988 by President

Aquino of the recommendation by the investigating committee to
sell the Roppongi property was premature or, at the very least,
conditioned on a valid change in the public character of the
Roppongi property. Moreover, the approval does not have the
force and effect of law since the President already lost her
legislative powers. The Congress had already convened for more
than a year.
Assuming for the sake of argument, however, that the Roppongi
property is no longer of public dominion, there is another
obstacle to its sale by the respondents.
In the instant case, none of the above elements exists.

There is no law authorizing its conveyance.
The issues are not concerned with validity of ownership or title.
There is no question that the property belongs to the Philippines.
The issue is the authority of the respondent officials to validly
Section 79 (f) of the Revised Administrative Code of 1917

provides

Section 79 (f ) Conveyances and contracts to
which the Government is a party. In cases in
which the Government of the Republic of the
Philippines is a party to any deed or other
instrument conveying the title to real estate or to
any other property the value of which is in excess
of one hundred thousand pesos, the respective
Department Secretary shall prepare the necessary
papers which, together with the proper
recommendations, shall be submitted to the
Congress of the Philippines for approval by the
same. Such deed, instrument, or contract shall be
executed and signed by the President of the
Philippines on behalf of the Government of the
Philippines unless the Government of the
Philippines unless the authority therefor be
expressly vested by law in another officer.
(Emphasis supplied)
The requirement has been retained in Section 48, Book I of the
Administrative Code of 1987 (Executive Order No. 292).
SEC. 48. Official Authorized to Convey Real
Property. Whenever real property of the
Government is authorized by law to be
conveyed, the deed of conveyance shall be
executed in behalf of the government by the
following:
(1) For property belonging to and titled in the name
of the Republic of the Philippines, by the President,
unless the authority therefor is expressly vested by
law in another officer.
(2) For property belonging to the Republic of the

Philippines but titled in the name of any political
subdivision or of any corporate agency or
instrumentality, by the executive head of the
agency or instrumentality. (Emphasis supplied)
It is not for the President to convey valuable real property of the
government on his or her own sole will. Any such conveyance
must be authorized and approved by a law enacted by the
Congress. It requires executive and legislative concurrence.
Resolution No. 55 of the Senate dated June 8, 1989, asking for
the deferment of the sale of the Roppongi property does not
withdraw the property from public domain much less authorize
its sale. It is a mere resolution; it is not a formal declaration
abandoning the public character of the Roppongi property. In
fact, the Senate Committee on Foreign Relations is conducting
hearings on Senate Resolution No. 734 which raises serious
policy considerations and calls for a fact-finding investigation of
the circumstances behind the decision to sell the Philippine
government properties in Japan.
The resolution of this Court in Ojeda v. Bidding Committee, et al.,
supra, did not pass upon the constitutionality of Executive Order
No. 296. Contrary to respondents' assertion, we did not uphold
the authority of the President to sell the Roppongi property. The
Court stated that the constitutionality of the executive order was
not the real issue and that resolving the constitutional question
was "neither necessary nor finally determinative of the case."
The Court noted that "[W]hat petitioner ultimately questions is
the use of the proceeds of the disposition of the Roppongi
property." In emphasizing that "the decision of the Executive to
dispose of the Roppongi property to finance the CARP ... cannot
be questioned" in view of Section 63 (c) of Rep. Act No. 6657, the
Court did not acknowledge the fact that the property became

alienable nor did it indicate that the President was authorized to
dispose of the Roppongi property. The resolution should be read
to mean that in case the Roppongi property is re-classified to be
patrimonial and alienable by authority of law, the proceeds of a
sale may be used for national economic development projects
including the CARP.
Moreover, the sale in 1989 did not materialize. The petitions
before us question the proposed 1990 sale of the Roppongi
property. We are resolving the issues raised in these petitions,
not the issues raised in 1989.
Having declared a need for a law or formal declaration to
withdraw the Roppongi property from public domain to make it
alienable and a need for legislative authority to allow the sale of
the property, we see no compelling reason to tackle the
constitutional issues raised by petitioner Ojeda.
occupation, for the suffering of widows and

orphans who lost their loved ones and kindred, for
the homes and other properties lost by countless
Filipinos during the war. The Tokyo properties are a
monument to the bravery and sacrifice of the
Filipino people in the face of an invader; like the
monuments of Rizal, Quezon, and other Filipino
heroes, we do not expect economic or financial
benefits from them. But who would think of selling
these monuments? Filipino honor and national
dignity dictate that we keep our properties in Japan
as memorials to the countless Filipinos who died
and suffered. Even if we should become paupers
we should not think of selling them. For it would be
as if we sold the lives and blood and tears of our
countrymen. (Rollo- G.R. No. 92013, p.147)
The petitioner in G.R. No. 92047 also states:
The Court does not ordinarily pass upon constitutional

questions unless these questions are properly raised in
appropriate cases and their resolution is necessary for the
determination of the case (People v. Vera, 65 Phil. 56 [1937]). The
Court will not pass upon a constitutional question although
properly presented by the record if the case can be disposed of
on some other ground such as the application of a statute or
general law (Siler v. Louisville and Nashville R. Co., 213 U.S. 175,
[1909], Railroad Commission v. Pullman Co., 312 U.S. 496 [1941]).
The petitioner in G.R. No. 92013 states why the Roppongi
property should not be sold:
The Roppongi property is not just like any piece of
property. It was given to the Filipino people in
reparation for the lives and blood of Filipinos who
died and suffered during the Japanese military
Roppongi is no ordinary property. It is one ceded

by the Japanese government in atonement for its
past belligerence for the valiant sacrifice of life and
limb and for deaths, physical dislocation and
economic devastation the whole Filipino people
endured in World War II.
It is for what it stands for, and for what it could
never bring back to life, that its significance today
remains undimmed, inspire of the lapse of 45 years
since the war ended, inspire of the passage of 32
years since the property passed on to the
Philippine government.
Roppongi is a reminder that cannot should not
be dissipated ... (Rollo-92047, p. 9)

It is indeed true that the Roppongi property is valuable not so
much because of the inflated prices fetched by real property in
Tokyo but more so because of its symbolic value to all Filipinos
veterans and civilians alike. Whether or not the Roppongi and
related properties will eventually be sold is a policy
determination where both the President and Congress must
concur. Considering the properties' importance and value, the
laws on conversion and disposition of property of public
dominion must be faithfully followed.
WHEREFORE, IN VIEW OF THE FOREGOING, the petitions are
GRANTED. A writ of prohibition is issued enjoining the
respondents from proceeding with the sale of the Roppongi
property in Tokyo, Japan. The February 20, 1990 Temporary
Restraining Order is made PERMANENT.
SO ORDERED.
Melencio-Herrera, Paras, Bidin, Grio-Aquino and Regalado, JJ.,
concur.
It is clear that the respondents have failed to show the

President's legal authority to sell the Roppongi property. When
asked to do so at the hearing on these petitions, the Solicitor
General was at best ambiguous, although I must add in fairness
that this was not his fault. The fact is that there is -no such
authority. Legal expertise alone cannot conjure that statutory
permission out of thin air.
Exec. Order No. 296, which reads like so much legislative, double
talk, does not contain such authority. Neither does Rep. Act No.
6657, which simply allows the proceeds of the sale of our
properties abroad to be used for the comprehensive agrarian
reform program. Senate Res. No. 55 was a mere request for the
deferment of the scheduled sale of tile Roppongi property,
possibly to stop the transaction altogether; and ill any case it is
not a law. The sale of the said property may be authorized only
by Congress through a duly enacted statute, and there is no
such law.
Once again, we have affirmed the principle that ours is a
government of laws and not of men, where every public official,
from the lowest to the highest, can act only by virtue of a valid
authorization. I am happy to note that in the several cases where
this Court has ruled against her, the President of the Philippines
has submitted to this principle with becoming grace.
Separate Opinions
PADILLA, J., concurring:

CRUZ, J., concurring:
I concur completely with the excellent ponencia of Mr. Justice
Gutierrez and will add the following observations only for
emphasis.
I concur in the decision penned by Mr. Justice Gutierrez, Jr., I

only wish to make a few observations which could help in further
clarifying the issues.

Under our tripartite system of government ordained by the
Constitution, it is Congress that lays down or determines
policies. The President executes such policies. The policies
determined by Congress are embodied in legislative enactments
that have to be approved by the President to become law. The
President, of course, recommends to Congress the approval of
policies but, in the final analysis, it is Congress that is the policy
- determining branch of government.
The judiciary interprets the laws and, in appropriate cases,
determines whether the laws enacted by Congress and approved
by the President, and presidential acts implementing such laws,
are in accordance with the Constitution.
The Roppongi property was acquired by the Philippine
government pursuant to the reparations agreement between the
Philippine and Japanese governments. Under such agreement,
this property was acquired by the Philippine government for a
specific purpose, namely, to serve as the site of the Philippine
Embassy in Tokyo, Japan. Consequently, Roppongi is a property
of public dominion and intended for public service, squarely
falling within that class of property under Art. 420 of the Civil
Code, which provides:
Art. 420. The following things are property of public
dominion :
(1) ...
(2) Those which belong to the State, without being
for public use, and are intended for some public
service or for the development of the national
wealth. (339a)
Public dominion property intended for public service cannot be

alienated unless the property is first transformed into private
property of the state otherwise known as patrimonial property of
the state. 1 The transformation of public dominion property to
state patrimonial property involves, to my mind, a policy
decision. It is a policy decision because the treatment of the
property varies according to its classification. Consequently, it is
Congress which can decide and declare the conversion of
Roppongi from a public dominion property to a state patrimonial
property. Congress has made no such decision or declaration.
Moreover, the sale of public property (once converted from
public dominion to state patrimonial property) must be approved
by Congress, for this again is a matter of policy (i.e. to keep or
dispose of the property). Sec. 48, Book 1 of the Administrative
Code of 1987 provides:
SEC. 48. Official Authorized to Convey Real
Property. Whenever real property of the
Government is authorized by law to be conveyed,
the deed of conveyance shall be executed in behalf
of the government by the following:
(1) For property belonging to and
titled in the name of the Republic of
the Philippines, by the President,
unless the authority therefor is
expressly vested by law in another
officer.
(2) For property belonging to the
Republic of the Philippines but titled
in the name of any political
subdivision or of any corporate
agency or instrumentality, by the

executive head of the agency or
instrumentality. (Emphasis supplied)
But the record is bare of any congressional decision or approval
to sell Roppongi. The record is likewise bare of any
congressional authority extended to the President to sell
Roppongi thru public bidding or otherwise.
It is therefore, clear that the President cannot sell or order the
sale of Roppongi thru public bidding or otherwise without a prior
congressional approval, first, converting Roppongi from a public
dominion property to a state patrimonial property, and, second,
authorizing the President to sell the same.
ACCORDINGLY, my vote is to GRANT the petition and to make
PERMANENT the temporary restraining order earlier issued by
this Court.

G.R. No. L-24661 February 28, 1974
BENJAMIN RABUCO, VENANCIO G. GUIRNALDA, LEODEGARIO
ALOBA, ELEUTERIO IBAES, ROGELIO ARAGONES, ASENCIO
ABANCO, BENEDICTO BAUTISTA, MAXIMO AQUINO, PAULINA
DALUMIAS, NENITA RAMOS, GUILLERMO VARIAS, EMELDA
ARELLANO, PEDRO BILBAO, ERNESTO BONBALES, ROSITA
OCA BAUTISTA, TERESITA ESTEBAN, JOSE BENJAMIN,
LORENZO BELDEVER, LEODEGARIO TUMLOS, PATRICIO
MALATE, ANSELMO CORTEJOS, ANACLETA ADUCA, SALOME
BARCELONA, ENRICO CELSO, IRENE CAMBA, MARIA
COLLADO, RUFINO CANTIL, ANANIAS CANILLO, MAXIMO DE
CASTRO, CEFERINO SALAZAR, PATRIA ANAYA, FELISA
VELASCO, IGNACIO SARASPI, FLAVIO DINAGUIT, REMEDIOS
BAROMETRO, PEDRO GEBANIA, RUBEN GEGABALEN,
EMETRIO EDAO, LUCIANO ARAGONES, ADRIANO
ESTRELLADO, BONIFACIO EVARISTO, ISIDORO EDORIA,
TIMOTEA ECARUAN, BIENVENIDO COLLADO, CENON DAJUYA,
RAFAELA FERNANDEZ, ALFONSO FAUSTINO, AVELINO
GARCIA, RICARDO GUIRNALDA, FRANCISCO HENERAL,
CARMEN KIONESALA, FELICIANO LUMACTOD, DOLORES
VILLACAMPA, NARCISO LIM, EUFEMIO LEGASPI, MATILDE
MABAQUIAO, EULOGIO VIA, MACARIO ANTONIO, JEREMIAS
DE LA CRUZ, MARTIN MANGABAN, SIMEON MANGABA T.,
CARIDAD MER MILLA, FELIX MAHINAY, NAPOLEON MARZAN,
ISAIAS MANALASTAS, JOSEFA CORVERA, JOSE APRUEDO,
ARSENIO REYES, EUGENIA A. ONO, CORNELIO OPOLENCIA,
SEDECIAS PASCUA, ABUNDIO PAGUNTALAN, ESPERANZA DE
QUIROS, CRESENCIO SALEM, MOISES FERNANDEZ,
FORTUNATO GONZALES, SOCORRO R. VALEN, RODOLFO
COLLADO, VENERIO CELSO, GREGORIO DE LA CRUZ, CELSO
ALCERA, NICOLAS ARAGONES, JOSEFINA MANANSALA,
ADELAIDA CALASIN , JOSE AGUSTIN, TOMAS JOSEPH,
MANUEL DADOR, SERGIO LIPATON, ERNESTO SUMAYDING,
MARCELINO DIOSO, MIGUEL ALCERA, CRISANTA ENAMER,
JUAN VIADO HILARION CHIOCO, EUROPIA CABAHUG,

VICTORIA DUERO, CONSORCIO ENOC, MAMERTO GAMONIDO,
BONIFACIO SABADO, MARIA INTROLIZO, HENRY ENOLBA,
REYNALDO LIM, FORTUNATO LIPON, ERNESTO MALLOS,
FLORENTINA PATRICIO, MAMERTO PALAPALA, RAMON DE
PERALTA, JOSE PARRAS, APOLINARIO YAP, JUAN ROQUE,
FELIX ROQUE, GLICERIA SALAZAR, MIGUELA SABIO, AGAPITO
SAYAS, PAULINO SARROZA, PACIFICO JUANICO, LIBERADO
TULAWAN, LIGAYA LAUS, ERNESTO VERZOSA, LEOPOLDO
BERNALES, JAIME VISTA, ISAIAS AMURAO, BENITA M.
BARENG, and BRIGIDA SANCHEZ, petitioners,
vs.
HON. ANTONIO J. VILLEGAS substituted by HON. RAMON
BAGATSING as CITY MAYOR OF MANILA, HON. LADISLAO J.
TOLENTINO, City Engineer of Manila, their agents, employees,
assistants and all persons acting under them; HON. BENJAMIN
GOZON, Administrator, Land Reform Authority substituted by
HON CONRADO ESTRELLA as Secretary of the Department of
Agrarian Reforms and his agents, employees, assistants and all
persons acting under his orders, respondent. 1
G.R. No. L-24915 February 28, 1974
BENJAMIN RABUCO, et al., (the same co-petitioners in L24661), petitioners,
vs.
BAGATSING as CITY MAYOR OF MANILA, et al., (the same corespondents in L-24661), respondents.
G.R. No. L-24916 February 28, 1974
BENJAMIN RABUCO, et al. (the same co-petitioners in L24661), petitioners-appellants,
vs.

BAGATSING as CITY MAYOR OF MANILA, et al., (the same corespondents in L-24661), respondents-appellees.
Manuel D. Melotindos and Ricardo M. Guirnalda for petitioners.
Second Assistant City Fiscal Manuel T. Reyes for respondents.
TEEHANKEE, J.:p
The Court herein upholds the constitutionality of Republic Act 3120 on
the strength of the established doctrine that the subdivision of
communal land of the State (although titled in the name of the
municipal corporation) and conveyance of the resulting subdivision
lots by sale on installment basis to bona fide occupants by
Congressional authorization and disposition does not constitute
infringements of the due process clause or the eminent domain
provisions of the Constitution but operates simply as a manifestation
of the legislature's right of control and power to deal with State
property.
The origin and background of the cases at bar which deal with the
decisive issue of constitutionality of Republic Act 3120 enacted
on June 17, 1961, as raised by respondent mayor of Manila in
resisting petitioners' pleas that respondent mayor not only lacks the
authority to demolish their houses or eject them as tenants and bona
fide occupants of a parcel of land in San Andres, Malate 2 but is also
expressly prohibited from doing so by section 2 of the Act, may be
summarized from the Court of Appeals' 3 certification of resolution of
May 31, 1965 as follows:
Case L-24916 involves petitioners' appeal to the Court of
Appeals 4 from the decision of the Manila court of first instance
dismissing their petition for injunction and mandamus to enjoin the

demolition of their houses and the ejectment from the public lots in
question and to direct respondent administrator of the Land Authority
(now Secretary of Agrarian Reform) to implement the provisions of
Republic Act 3120 for the subdivision and sale on installment basis of
the subdivided lots to them as the tenants and bona fide occupants
thereof, and instead ordering their ejectment.
Case L-24915 involves petitioners' independent petition for injunction
filed directly with the Court of Appeals January 29, 1965 5 to forestall
the demolition overnight of their houses pursuant to the order of
demolition set for January 30, 1965 at 8 a.m. issued by respondents
city officials pending the elevation of their appeal. The appellate court
gave due course thereto and issued the writ of preliminary injunction
as prayed for.
The two cases were ordered "consolidated into one" since they were
"unavoidably interlaced." The appellate court, finding that the
constitutionality of Republic Act 3120 was "the dominant and
inextricable issue in the appeal" over which it had no jurisdiction and
that the trial court incorrectly "sidetracked" the issue, thereafter
certified the said cases to this Court, as follows:
The validity of Republic Act 3120 which was
seasonably posed in issue in the court below was
sidetracked by the trial court, thus:
The constitutionality of Republic Act No.
3120 need not be passed upon as the
principal question in issue is whether the
houses of the petitioners are public
nuisances, which the court resolved in
the affirmative. As a matter of fact even
if the petitioners were already the
owners of the land on which their

respected houses are erected, the
respondent city officials could cause the
removal thereof as they were
constructed in violation of city
ordinances and constitute public
nuisance.
It is significant to note, however, that what is sought by
the respondent City Mayor and City Engineer of Manila
is not only the demolition of the petitioners' houses in
the premises in controversy, but their ejectment as
well. Moreover, Republic Act 3120 does intend not only
the dismissal of the ejectment proceedings against the
petitioners from the land in controversy upon their
motion, but as well that any demolition order issued
against them shall also have to be dismissed. The law
says:
Upon approval of this Act no ejectment
proceedings against any tenants or
bona fide occupant shall be instituted
and any proceedings against any such
tenant or bona fideoccupant shall be
dismissed upon motion of the
defendant. Provided, That any
demolition order directed against any
tenant or bona fide occupant thereof,
shall be dismissed. (Sec. 2, R. A. 3120).
Indeed, the petitioners-appellants, who contended in
the court below that it was not necessary to decide on
the validity or constitutionality of the law, now
asseverate that 'Republic Act No. 3120 expressly
prohibits ejectment and demolition of petitioners'
home.' The petitioners' argument in their appeal to this

Court runs as follows:
1. Petitioners-appellants are entitled to
the remedies of injunction
and mandamus, being vested with
lawful possession over Lot 21-B, Block
610, granted by law, Republic Act No.
3120.
2. Civil Case No. 56092 has not been
barred by any prior judgment, as
wrongly claimed by respondentsappellees.
3. Ejectment and demolition against
petitioners-appellants are unlawful and
clearly prohibited by Republic Act No.
3120.
The defense of the respondents Mayor and City
Engineer of Manila to arguments 2 and 3 is the
invalidity of the said Republic Act 3120 for being in
violation of the Constitutional prohibition against the
deprivation of property without due process of law and
without just compensation. So that even if argument 2
interposed by the petitioners-appellants should be
rejected, still they may claim a right, by virtue of the
aforesaid provisions of Republic Act 3120, to continue
possession and occupation of the premises and the
lifting of the order of demolition issued against them.
The constitutionality of the said Republic Act 3120,
therefore, becomes the dominant and inextricable
issue of the appeal.

Case L-24661 for the continuation and maintenance of the writ of
preliminary injunction previously issued by the Court of Appeals for
preservation of the status quo was filed by petitioners directly with this
Court on June 21, 1965, pending transmittal of the records of Cases
L-24915 and L-24916 to this Court as certified by the Court of Appeals
which declared itself without jurisdiction over the principal and
decisive issue of constitutionality of Republic Act 3120.
The Court gave due course thereto and on August 17, 1965 issued
upon a P1,000 bond the writ of preliminary injunction as prayed for
enjoining respondents "from demolishing and/or continuing to
demolish the houses of herein petitioners situated in Lot No. 21-B,
Block No. 610 of the Cadastral Survey of the City of Manila, or from
performing any act constituting an interference in or disturbance of
their present possession."
The records of two cases certified by the appellate court, L-24915 and
L-24916, were eventually forwarded to this Court which per its
resolution of August 24, 1965 ordered that they be docketed and be
considered together with case L-24661.
In the early morning of April 19, 1970, a large fire of undetermined
origin gutted the Malate area including the lot on which petitioners had
built their homes and dwellings. Respondents city officials then took
over the lot and kept petitioners from reconstructing or repairing their
burned dwellings. At petitioners' instance, the Court issued on June
17, 1970 a temporary restraining order enjoining respondents city
officials "from performing any act constituting an interference in or
disturbance of herein petitioners' possession of Lot No. 21-B, Block
No. 610, of the Cadastral Survey of the City of Manila" as
safeguarded them under the Court's subsisting preliminary injunction
of August 17, 1965.
The "dominant and inextricable issue" at bar, as correctly perceived
by the appellate court is the constitutionality of Republic Act 3120
whereby Congress converted the lot in question together with another

lot in San Andres, Malate "which are reserved as communal property"
into "disposable or alienable lands of the State to be placed under the
administration and disposal of the Land Tenure Administration" for
subdivision into small lots not exceeding 120 square meters per lot for
sale on installment basis to the tenants or bona fide occupants
thereof 6 and expressly prohibited ejectment and demolition of
petitioners' homes under section 2 of the Act as quoted in the
appellate court's certification resolution, supra.
The incidental issue seized upon by the trial court as a main issue for
"sidetracking" the decisive issue of constitutionality, to wit, that
petitioners' houses as they stood at the time of its judgment in 1965
"were constructed in violation of city ordinances and constituted public
nuisances" whose removal could be ordered "even if petitioners were
already the owners of the land on which their respective houses are
erected" has become moot with the burning down of the petitioners'
houses in the fire of April 19, 1970.
If the Act is invalid and unconstitutional for constituting deprivation of
property without due process of law and without just compensation as
contended by respondents city officials, then the trial court's refusal to
enjoin ejectment and demolition of petitioners' houses may be upheld.
Otherwise, petitioners' right under the Act to continue possession and
occupation of the premises and to the lifting and dismissal of the order
of demolition issued against them must be enforced and the trial
court's judgment must be set aside.
Respondents city officials' contention that the Act must be stricken
down as unconstitutional for depriving the city of Manila of the lots in
question and providing for their sale in subdivided small lots to bona
fide occupants or tenants without payment of just compensation is
untenable and without basis, since the lots in question are manifestly
owned by the city in its public and governmental capacity and are
therefore public property over which Congress had absolute control as

distinguished from patrimonial property owned by it in
its private or proprietary capacity of which it could not be deprived
without due process and without just compensation. 7
Here, Republic Act 3120 expressly declared that the properties were
"reserved as communal property" and ordered their conversion into
"disposable and alienable lands of the State" for sale in small lots to
the bona fide occupants thereof. It is established doctrine that the act
of classifying State property calls for the exercise of wide discretionary
legislative power which will not be interfered with by the courts.
The case of Salas vs. Jarencio 8 wherein the Court upheld the
constitutionality of Republic Act 4118 whereby Congress in identical
terms as in Republic Act 3120 likewise converted another city lot (Lot
1-B-2-B of Block 557 of the cadastral survey of Manila also in Malate)
which was reserved as communal property into disposable land of the
State for resale in small lots by the Land Tenure, Administration to the
bona fide occupants is controlling in the case at bar.
The Court therein reaffirmed the established general rule that
"regardless of the source or classification of land in the possession of
a municipality, excepting those acquired with its own funds in its
private or corporate capacity, such property is held in trust for the
State for the benefit of its inhabitants, whether it be for governmental
or proprietary purposes. It holds such lands subject to the paramount
power of the legislature to dispose of the same, for after all it owes
its creation to it as an agent for the performance of a part of its public
work, the municipality being but a subdivision or instrumentality
thereof for purposes of local administration. Accordingly, the legal
situation is the same as if the State itself holds the property and puts it
to a different use" 9 and stressed that "the property, as has been
previously shown, was not acquired by the City of Manila with its own
funds in its private or proprietary capacity. That it has in its name a
registered title is not questioned, but this title should be deemed to
be held in trust for the State as the land covered thereby was part of
the territory of the City of Manila granted by the sovereign upon its
creation." 10
There as here, the Court holds that the Acts in question (Republic
Acts 4118 in Salas and Republic Act 3120 in the case at bar) were
intended to implement the social justice policy of the Constitution and
the government program of land for the landless and that they
were not "intended to expropriate the property involved but merely
to confirm its character as communal land of the State and to make it
available for disposition by the National Government: ... The
subdivision of the land and conveyane of the resulting subdivision lots
to the occupants by Congressional authorization does not operate as
an exercise of the power of eminent domain without just
compensation in violation of Section 1, subsection (2), Article III of the
Constitution, 11 but simply as a manifestation of its right and power to
deal with state property." 12
Since the challenge of respondents city officials against the
constitutionality of Republic Act 3120 must fail as the City
was not deprived thereby of anything it owns by acquisition with its
private or corporate funds either under the due process clause or
under the eminent domain provisions of the Constitution, the
provisions of said Act must be enforced and petitioners are entitled to
the injunction as prayed for implementing the Act's prohibition against
their ejectment and demolition of their houses.
WHEREFORE, the appealed decision of the lower court (in Case No.
L-24916) is hereby set aside, and the preliminary injunction heretofore
issued on August 17, 1965 is hereby made permanent. The
respondent Secretary of Agrarian Reform as successor agency of the
Land Tenure Administration may now proceed with the due
implementation of Republic Act 3120 in accordance with its terms and
provisions. No costs.

Makalintal, C.J., Zaldivar, Castro, Barredo, Makasiar, Antonio,
Esguerra, Muoz Palma and Aquino, JJ., concur.
Fernandez, J., took no part.

G.R. No. 97764 August 10, 1992
LEVY D. MACASIANO, Brigadier General/PNP Superintendent,
Metropolitan Traffic Command, petitioner,
vs.
HONORABLE ROBERTO C. DIOKNO, Presiding Judge, Branch
62, Regional Trial Court of Makati, Metro Manila, MUNICIPALITY
OF PARAAQUE, METRO MANILA, PALANYAG KILUSANG
BAYAN FOR SERVICE,respondents.
Ceferino, Padua Law Office for Palanyag Kilusang Bayan for service.
Manuel de Guia for Municipality of Paraaque.
and open spaces within Metropolitan Manila as sites for flea market
and/or vending areas, under certain terms and conditions.
On July 20, 1990, the Metropolitan Manila Authority approved
Ordinance No. 86, s. 1990 of the municipal council of respondent
municipality subject to the following conditions:
1. That the aforenamed streets are not used for
vehicular traffic, and that the majority of the residents
do not oppose the establishment of the flea
market/vending areas thereon;
2. That the 2-meter middle road to be used as flea
market/vending area shall be marked distinctly, and
that the 2 meters on both sides of the road shall be
used by pedestrians;
MEDIALDEA, J.:
This is a petition for certiorari under Rule 65 of the Rules of Court
seeking the annulment of the decision of the Regional Trial Court of
Makati, Branch 62, which granted the writ of preliminary injunction
applied for by respondents Municipality of Paraaque and Palanyag
Kilusang Bayan for Service (Palanyag for brevity) against petitioner
herein.
The antecedent facts are as follows:
On June 13, 1990, the respondent municipality passed Ordinance No.
86, Series of 1990 which authorized the closure of J. Gabriel, G.G.
Cruz, Bayanihan, Lt. Garcia Extension and Opena Streets located at
Baclaran, Paraaque, Metro Manila and the establishment of a flea
market thereon. The said ordinance was approved by the municipal
council pursuant to MMC Ordinance No. 2, Series of 1979, authorizing
and regulating the use of certain city and/or municipal streets, roads
3. That the time during which the vending area is to be

used shall be clearly designated;
4. That the use of the vending areas shall be temporary
and shall be closed once the reclaimed areas are
developed and donated by the Public Estate Authority.
On June 20, 1990, the municipal council of Paraaque issued a
resolution authorizing Paraaque Mayor Walfrido N. Ferrer to enter
into contract with any service cooperative for the establishment,
operation, maintenance and management of flea markets and/or
vending areas.
On August 8, 1990, respondent municipality and respondent
Palanyag, a service cooperative, entered into an agreement whereby
the latter shall operate, maintain and manage the flea market in the
aforementioned streets with the obligation to remit dues to the

treasury of the municipal government of Paraaque. Consequently,
market stalls were put up by respondent Palanyag on the said streets.
On September 13, 1990, petitioner Brig. Gen. Macasiano, PNP
Superintendent of the Metropolitan Traffic Command, ordered the
destruction and confiscation of stalls along G.G. Cruz and J. Gabriel
St. in Baclaran. These stalls were later returned to respondent
Palanyag.
On October 16, 1990, petitioner Brig. General Macasiano wrote a
letter to respondent Palanyag giving the latter ten (10) days to
discontinue the flea market; otherwise, the market stalls shall be
dismantled.
Hence, on October 23, 1990, respondents municipality and Palanyag
filed with the trial court a joint petition for prohibition
and mandamus with damages and prayer for preliminary injunction, to
which the petitioner filed his memorandum/opposition to the issuance
of the writ of preliminary injunction.
On October 24, 1990, the trial court issued a temporary restraining
order to enjoin petitioner from enforcing his letter-order of October 16,
1990 pending the hearing on the motion for writ of preliminary
injunction.
On December 17, 1990, the trial court issued an order upholding the
validity of Ordinance No. 86 s. 1990 of the Municipality' of Paraaque
and enjoining petitioner Brig. Gen. Macasiano from enforcing his
letter-order against respondent Palanyag.
Hence, this petition was filed by the petitioner thru the Office of the
Solicitor General alleging grave abuse of discretion tantamount to lack
or excess of jurisdiction on the part of the trial judge in issuing the
assailed order.
The sole issue to be resolved in this case is whether or not an

ordinance or resolution issued by the municipal council of Paraaque
authorizing the lease and use of public streets or thoroughfares as
sites for flea markets is valid.
The Solicitor General, in behalf of petitioner, contends that municipal
roads are used for public service and are therefore public properties;
that as such, they cannot be subject to private appropriation or private
contract by any person, even by the respondent Municipality of
Paraaque. Petitioner submits that a property already dedicated to
public use cannot be used for another public purpose and that absent
a clear showing that the Municipality of Paraaque has been granted
by the legislature specific authority to convert a property already in
public use to another public use, respondent municipality is, therefore,
bereft of any authority to close municipal roads for the establishment
of a flea market. Petitioner also submits that assuming that the
respondent municipality is authorized to close streets, it failed to
comply with the conditions set forth by the Metropolitan Manila
Authority for the approval of the ordinance providing for the
establishment of flea markets on public streets. Lastly, petitioner
contends that by allowing the municipal streets to be used by market
vendors the municipal council of respondent municipality violated its
duty under the Local Government Code to promote the general
welfare of the residents of the municipality.
In upholding the legality of the disputed ordinance, the trial court
ruled:
. . . that Chanter II Section 10 of the Local Government
Code is a statutory grant of power given to local
government units, the Municipality of Paraaque as
such, is empowered under that law to close its roads,
streets or alley subject to limitations stated therein (i.e.,
that it is in accordance with existing laws and the
provisions of this code).

xxx xxx xxx
The actuation of the respondent Brig. Gen. Levi
Macasiano, though apparently within its power is in fact
an encroachment of power legally vested to the
municipality, precisely because when the municipality
enacted the ordinance in question the authority of
the respondent as Police Superintendent ceases to be
operative on the ground that the streets covered by the
ordinance ceases to be a public thoroughfare. (pp. 3334, Rollo)
We find the petition meritorious. In resolving the question of whether
the disputed municipal ordinance authorizing the flea market on the
public streets is valid, it is necessary to examine the laws in force
during the time the said ordinance was enacted, namely, Batas
Pambansa Blg. 337, otherwise known as Local Government Code, in
connection with established principles embodied in the Civil Code an
property and settled jurisprudence on the matter.
The property of provinces, cities and municipalities is divided into
property for public use and patrimonial property (Art. 423, Civil Code).
As to what consists of property for public use, Article 424 of Civil Code
states:
Art. 424. Property for public use, in the provinces, cities
and municipalities, consists of the provincial roads, city
streets, the squares, fountains, public waters,
promenades, and public works for public service paid
for by said provinces, cities or municipalities.
All other property possessed by any of them is
patrimonial and shall be governed by this Code,
without prejudice to the provisions of special laws.
Based on the foregoing, J. Gabriel G.G. Cruz, Bayanihan, Lt. Garcia

Extension and Opena streets are local roads used for public service
and are therefore considered public properties of respondent
municipality. Properties of the local government which are devoted to
public service are deemed public and are under the absolute control
of Congress (Province of Zamboanga del Norte v. City of Zamboanga,
L-24440, March 28, 1968, 22 SCRA 1334). Hence, local governments
have no authority whatsoever to control or regulate the use of public
properties unless specific authority is vested upon them by Congress.
One such example of this authority given by Congress to the local
governments is the power to close roads as provided in Section 10,
Chapter II of the Local Government Code, which states:
Sec. 10. Closure of roads. A local government unit
may likewise, through its head acting pursuant to a
resolution of its sangguniang and in accordance with
existing law and the provisions of this Code, close any
barangay, municipal, city or provincial road, street,
alley, park or square. No such way or place or any part
of thereof shall be close without indemnifying any
person prejudiced thereby. A property thus withdrawn
from public use may be used or conveyed for any
purpose for which other real property belonging to the
local unit concerned might be lawfully used or
conveyed. (Emphasis ours).
However, the aforestated legal provision which gives authority to local
government units to close roads and other similar public places
should be read and interpreted in accordance with basic principles
already established by law. These basic principles have the effect of
limiting such authority of the province, city or municipality to close a
public street or thoroughfare. Article 424 of the Civil Code lays down
the basic principle that properties of public dominion devoted to public
use and made available to the public in general are outside the
commerce of man and cannot be disposed of or leased by the local

government unit to private persons. Aside from the requirement of due
process which should be complied with before closing a road, street
or park, the closure should be for the sole purpose of withdrawing the
road or other public property from public use when circumstances
show that such property is no longer intended or necessary for public
use or public service. When it is already withdrawn from public use,
the property then becomes patrimonial property of the local
government unit concerned (Article 422, Civil Code; Cebu Oxygen,
etc. et al. v. Bercilles, et al., G.R. No. L-40474, August 29, 1975, 66
SCRA 481). It is only then that the respondent municipality can "use
or convey them for any purpose for which other real property
belonging to the local unit concerned might be lawfully used or
conveyed" in accordance with the last sentence of Section 10,
Chapter II of Blg. 337, known as Local Government Code. In one
case, the City Council of Cebu, through a resolution, declared the
terminal road of M. Borces Street, Mabolo, Cebu City as an
abandoned road, the same not being included in the City
Development Plan. Thereafter, the City Council passes another
resolution authorizing the sale of the said abandoned road through
public bidding. We held therein that the City of Cebu is empowered to
close a city street and to vacate or withdraw the same from public
use. Such withdrawn portion becomes patrimonial property which can
be the object of an ordinary contract (Cebu Oxygen and Acetylene
Co., Inc. v. Bercilles, et al., G.R. No.
L-40474, August 29, 1975, 66 SCRA 481). However, those roads and
streets which are available to the public in general and ordinarily used
for vehicular traffic are still considered public property devoted to
public use. In such case, the local government has no power to use it
for another purpose or to dispose of or lease it to private persons.
This limitation on the authority of the local government over public
properties has been discussed and settled by this Court en banc in
"Francisco V. Dacanay, petitioner v. Mayor Macaria Asistio, Jr., et al.,
respondents, G.R. No. 93654, May 6, 1992." This Court ruled:
There is no doubt that the disputed areas from which

the private respondents' market stalls are sought to be
evicted are public streets, as found by the trial court in
Civil Case No. C-12921. A public street is property for
public use hence outside the commerce of man (Arts.
420, 424, Civil Code). Being outside the commerce of
man, it may not be the subject of lease or others
contract (Villanueva, et al. v. Castaeda and Macalino,
15 SCRA 142 citing the Municipality of Cavite v. Rojas,
30 SCRA 602; Espiritu v. Municipal Council of
Pozorrubio, 102 Phil. 869; And Muyot v. De la Fuente,
48 O.G. 4860).
As the stallholders pay fees to the City Government for
the right to occupy portions of the public street, the City
Government, contrary to law, has been leasing portions
of the streets to them. Such leases or licenses are null
and void for being contrary to law. The right of the
public to use the city streets may not be bargained
away through contract. The interests of a few should
not prevail over the good of the greater number in the
community whose health, peace, safety, good order
and general welfare, the respondent city officials are
under legal obligation to protect.
The Executive Order issued by acting Mayor Robles
authorizing the use of Heroes del '96 Street as a
vending area for stallholders who were granted
licenses by the city government contravenes the
general law that reserves city streets and roads for
public use. Mayor Robles' Executive Order may not
infringe upon the vested right of the public to use city
streets for the purpose they were intended to
serve: i.e., as arteries of travel for vehicles and
pedestrians.

Even assuming, in gratia argumenti, that respondent municipality has
the authority to pass the disputed ordinance, the same cannot be
validly implemented because it cannot be considered approved by the
Metropolitan Manila Authority due to non-compliance by respondent
municipality of the conditions imposed by the former for the approval
of the ordinance, to wit:
1. That the aforenamed streets are not used for
vehicular traffic, and that the majority of the residents
do(es) not oppose the establishment of the flea
market/vending areas thereon;
2. That the 2-meter middle road to be used as flea
market/vending area shall be marked distinctly, and
that the 2 meters on both sides of the road shall be
used by pedestrians;
3. That the time during which the vending area is to be
used shall be clearly designated;
4. That the use of the vending areas shall be temporary
and shall be closed once the reclaimed areas are
developed and donated by the Public Estate Authority.
(p. 38, Rollo)
Respondent municipality has not shown any iota of proof that it has
complied with the foregoing conditions precedent to the approval of
the ordinance. The allegations of respondent municipality that the
closed streets were not used for vehicular traffic and that the majority
of the residents do not oppose the establishment of a flea market on
said streets are unsupported by any evidence that will show that this
first condition has been met. Likewise, the designation by respondents
of a time schedule during which the flea market shall operate is
absent.
Further, it is of public notice that the streets along Baclaran area are
congested with people, houses and traffic brought about by the
proliferation of vendors occupying the streets. To license and allow the
establishment of a flea market along J. Gabriel, G.G. Cruz,
Bayanihan, Lt. Garcia Extension and Opena streets in Baclaran would
not help in solving the problem of congestion. We take note of the
other observations of the Solicitor General when he said:
. . . There have been many instances of emergencies
and fires where ambulances and fire engines, instead
of using the roads for a more direct access to the fire
area, have to maneuver and look for other streets
which are not occupied by stalls and vendors thereby
losing valuable time which could, otherwise, have been
spent in saving properties and lives.
Along G.G. Cruz Street is a hospital, the St. Rita
Hospital. However, its ambulances and the people
rushing their patients to the hospital cannot pass
through G.G. Cruz because of the stalls and the
vendors. One can only imagine the tragedy of losing a
life just because of a few seconds delay brought about
by the inaccessibility of the streets leading to the
hospital.
The children, too, suffer. In view of the occupancy of
the roads by stalls and vendors, normal transportation
flow is disrupted and school children have to get off at
a distance still far from their schools and walk, rain or
shine.
Indeed one can only imagine the garbage and litter left
by vendors on the streets at the end of the day.
Needless to say, these cause further pollution,

sickness and deterioration of health of the residents
therein. (pp. 21-22, Rollo)
Respondents do not refute the truth of the foregoing findings and
observations of petitioners. Instead, respondents want this Court to
focus its attention solely on the argument that the use of public
spaces for the establishment of a flea market is well within the powers
granted by law to a local government which should not be interfered
with by the courts.
Verily, the powers of a local government unit are not absolute. They
are subject to limitations laid down by toe Constitution and the laws
such as our Civil Code. Moreover, the exercise of such powers should
be subservient to paramount considerations of health and well-being
of the members of the community. Every local government unit has
the sworn obligation to enact measures that will enhance the public
health, safety and convenience, maintain peace and order, and
promote the general prosperity of the inhabitants of the local units.
Based on this objective, the local government should refrain from
acting towards that which might prejudice or adversely affect the
general welfare.
As what we have said in the Dacanay case, the general public have a
legal right to demand the demolition of the illegally constructed stalls
in public roads and streets and the officials of respondent municipality
have the corresponding duty arising from public office to clear the city
streets and restore them to their specific public purpose.
The instant case as well as the Dacanay case, involves an ordinance
which is void and illegal for lack of basis and authority in laws
applicable during its time. However, at this point, We find it worthy to
note that Batas Pambansa Blg. 337, known as Local Government
Lode, has already been repealed by Republic Act No. 7160 known as
Local Government Code of 1991 which took effect on January 1,
1992. Section 5(d) of the new Code provides that rights and
obligations existing on the date of effectivity of the new Code and

arising out of contracts or any other source of prestation involving a
local government unit shall be governed by the original terms and
conditions of the said contracts or the law in force at the time such
rights were vested.
ACCORDINGLY, the petition is GRANTED and the decision of the
respondent Regional Trial Court dated December 17, 1990 which
granted the writ of preliminary injunction enjoining petitioner as PNP
Superintendent, Metropolitan Traffic Command from enforcing the
demolition of market stalls along J. Gabriel, G.G. Cruz, Bayanihan, Lt.
Garcia Extension and Opena streets is hereby RESERVED and SET
ASIDE.
SO ORDERED.

[G.R. No. 100709. November 14, 1997]
REPUBLIC OF THE PHILIPPINES, represented by the DIRECTOR
OF
LANDS, petitioner, vs. COURT
OF APPEALS,
JOSEFINA L. MORATO, SPOUSES NENITA CO and
ANTONIO QUILATAN AND THE REGISTER OF DEEDS OF
QUEZON PROVINCE, respondents.
DECISION
Sometime in December, 1972, respondent Morato filed a Free Patent

Application No. III-3-8186-B on a parcel of land with an area of 1,265
square meters situated at Pinagtalleran, Calauag, Quezon. On
January 16, 1974, the patent was approved and the Register of
Deeds of Quezon at Lucena City issued on February 4, 1974 Original
Certificate of Title No. P-17789. Both the free patent and the title
specifically mandate that the land shall not
be alienated nor encumbered within five (5) years from the date of the
issuance of the patent (Sections 118 and 124 of CA No. 141, as
amended).
PANGANIBAN, J.:
Will the lease and/or mortgage of a portion of a realty acquired
through free patent constitute sufficient ground for the nullification of
such land grant? Should such property revert to the State once it is
invaded by the sea and thus becomes foreshore land?
The Case
These are the two questions raised in the petition before us
assailing the Court of Appeals[1] Decision in CA-G.R. CV No. 02667
promulgated on June 13, 1991 which answered the said questions in
the negative.[2] Respondent Courts Decision dismissed[3] petitioners
appeal and affirmed in toto the decision of the Regional Trial Court[4] of
Calauag, Quezon, dated December 28, 1983 in Civil Case No. C608. In turn, the Regional Trial Courts decision dismissed petitioners
complaint for cancellation of the Torrens Certificate of Title of
Respondent Morato and for reversion of the parcel of land subject
thereof to the public domain.
The Facts
The petition of the solicitor general, representing the Republic of
the Philippines, recites the following facts:[5]
Subsequently, the District Land Officer in Lucena City, acting upon

reports that respondent Morato had encumbered the land in violation
of the condition of the patent, conducted an investigation. Thereafter,
it was established that the subject land is a portion of the Calauag
Bay, five (5) to six (6) feet deep under water during high tide and two
(2) feet deep at low tide, and not suitable to vegetation. Moreover, on
October 24, 1974, a portion of the land was mortgaged by respondent
Morato to respondents Nenita Co and Antonio Quilatan
for P10,000.00 (pp. 2, 25, Folder of Exhibits). The spouses Quilatan
constructed a house on the land. Another portion of the land was
leased to Perfecto Advincula on February 2, 1976 at P100.00 a
month, where a warehouse was constructed.
On November 5, 1978, petitioner filed an amended complaint against
respondents Morato, spouses Nenita Co and Antonio Quilatan, and
the Register of Deeds of Quezon for the cancellation of title and
reversion of a parcel of land to the public domain, subject of a free
patent in favor of respondent Morato, on the grounds that the land is a
foreshore land and was mortgaged and leased within the five-year
prohibitory period (p. 46, Records).
After trial, the lower court, on December 28, 1983, rendered a
decision dismissing petitioners complaint. In finding for private

respondents, the lower court ruled that there was no violation of the 5year period ban against alienating or encumbering the land, because
the land was merely leased and not alienated. It also found that the
mortgage to Nenita Co and Antonio Quilatan covered only the
improvement and not the land itself.
On appeal, the Court of Appeals affirmed the decision of the trial
court. Thereafter, the Republic of the Philippines filed the present
petition.[6]
The Issues
Petitioner alleges that the following errors were committed by
Respondent Court:[7]
x x x. As ruled in Heirs of Gregorio Tengco vs. Heirs of Jose Alivalas,

168 SCRA 198. x x. The rule is well-settled that an original certificate
of title issued on the strength of a homestead patent partakes of the
nature of a certificate of title issued in a judicial proceeding, as long as
the land disposed of is really part of the disposable land of the public
domain, and becomes indefeasible and incontrovertible upon the
expiration of one year from the date of promulgation of the order of
the Director of Lands for the issuance of the patent. (Republic v. Heirs
of Carle, 105 Phil. 1227 (1959); Ingaran v. Ramelo, 107 Phil. 498
(1960); Lopez v. Padilla, (G.R. No. L-27559, May 18, 1972, 45 SCRA
44). A homestead patent, one registered under the Land Registration
Act, becomes as indefeasible as a Torrens Title. (Pamintuan v.San
Agustin, 43 Phil. 558 (1982); El Hogar Filipino v. Olviga, 60 Phil. 17
(1934); Duran v. Oliva, 113 Phil. 144 (1961); Pajomayo v. Manipon,
G.R. No. L-33676, June 30, 1971, 39 SCRA 676). (p. 203).
I
Respondent Court erred in holding that the patent granted and
certificate of title issued to Respondent Morato cannot be cancelled
and annulled since the certificate of title becomes indefeasible after
one year from the issuance of the title.
II
Respondent Court erred in holding that the questioned land is part of
a disposable public land and not a foreshore land.
The Courts Ruling
The petition is meritorious.
First Issue: Indefeasibility of a Free Patent Title
In resolving the first issue against petitioner, Respondent Court
held:[8]
Again, in Lopez vs. Court of Appeals, 169 SCRA 271, citing Iglesia ni
Cristo v. Hon. Judge, CFI of Nueva Ecija, Branch I, (123 SCRA 516
(1983) and Pajomayo, et al. v. Manipon, et al. (39 SCRA 676 (1971)
held that once a homestead patent granted in accordance with the
Public Land Act is registered pursuant to Section 122 of Act 496, the
certificate of title issued in virtue of said patent has the force and
effect of a Torrens Title issued under the Land Registration Act.
Indefeasibility of the title, however, may not bar the State, thru the
Solicitor General, from filing an action for reversion, as ruled in Heirs
of Gregorio Tengo v. Heirs of Jose Aliwalas, (supra), as follows:
But, as correctly pointed out by the respondent Court of Appeals, Dr.
Aliwalas title to the property having become incontrovertible, such
may no longer be collaterally attacked. If indeed there had been any
fraud or misrepresentation in obtaining the title, an action for reversion
instituted by the Solicitor General would be the proper remedy (Sec.
101, C.A. No. 141; Director of Lands v. Jugado, G.R. No. L-14702,
May 21, 1961, 2 SCRA 32; Lopez v. Padilla, supra). (p. 204).

Petitioner contends that the grant of Free Patent (IV-3) 275 and
the subsequent issuance of Original Certificate of Title No. P-17789 to
Respondent Josefina L. Morato were subject to the conditions
provided for in Commonwealth Act (CA) No. 141. It alleges that on
October 24, 1974, or nine (9) months and eight (8) days after the
grant of the patent, Respondent Morato, in violation of the terms of the
patent, mortgaged a portion of the land to Respondent Nenita Co,
who thereafter constructed a house thereon. Likewise, on February 2,
1976 and within the five-year prohibitory period, Respondent Morato
leased a portion of the land to Perfecto Advincula at a monthly rent
of P100.00 who, shortly thereafter, constructed a house of concrete
materials on the subject land.[9] Further, petitioner argues that the
defense of indefeasibility of title is inaccurate. The original certificate
of title issued to Respondent Morato contains the seeds of its own
cancellation: such certificate specifically states on its face that it is
subject to the provisions of Sections 118, 119, 121, 122, 124 of CA
No. 141, as amended.[10]
Respondent Morato counters by stating that although a portion of
the land was previously leased, it resulted from the fact that Perfecto
Advincula built a warehouse in the subject land without [her] prior
consent. The mortgage executed over the improvement cannot be
considered a violation of the said grant since it can never affect the
ownership.[11] She states further:
x x x. the appeal of the petitioner was dismissed not because of the
principle of indefeasibility of title but mainly due to failure of the latter
to support and prove the alleged violations of respondent Morato.The
records of this case will readily show that although petitioner was able
to establish that Morato committed some acts during the prohibitory
period of 5 years, a perusal thereof will also show that what petitioner
was able to prove never constituted a violation of the grant.[12]
Respondent-Spouses Quilatan, on the other hand, state that the
mortgage contract they entered into with Respondent Morato can
never be considered as [an] alienation inasmuch as the ownership

over the property remains with the owner.[13] Besides, it is the director
of lands and not the Republic of the Philippines who is the real party
in interest in this case, contrary to the provision of the Public Land Act
which states that actions for reversion should be instituted by the
solicitor general in the name of Republic of the Philippines.[14]
We find for petitioner.
Quoted below are relevant sections of Commonwealth Act No.
141, otherwise known as the Public Land Act:
Sec. 118. Except in favor of the Government or any of its branches,
units or institutions, or legally constituted banking corporations, lands
acquired under free patent or homestead provisions shall not be
subject to encumbrance or alienation from the date of the approval of
the application and for a term of five years from and after the date of
issuance of the patent or grant nor shall they become liable to the
satisfaction of any debt contracted prior to the expiration of said
period; but the improvements or crops on the land may be mortgaged
or pledged to qualified persons, associations, or corporations.
No alienation, transfer, or conveyance of any homestead after five
years and before twenty-five years after issuance of title shall be valid
without the approval of the Secretary of Agriculture and Natural
Resources, which approval shall not be denied except on
constitutional and legal grounds. (As amended by Com. Act No. 456,
approved June 8, 1939.)
xxxxxxxxx
Sec. 121. Except with the consent of the grantee and the approval of
the Secretary of Agriculture and Natural Resources, and solely for
educational, religious, or charitable purposes or for a right of way, no
corporation, association, or partnership may acquire or have any right,

title, interest, or property right whatsoever to any land granted under
the free patent, homestead, or individual sale provisions of this Act or
to any permanent improvement on such land. (As amended by Com.
Act No. 615, approved May 5, 1941)
Sec. 122. No land originally acquired in any manner under the
provisions of this Act, nor any permanent improvement on such land,
shall be encumbered, alienated or transferred, except to persons,
corporations, association, or partnerships who may acquire lands of
the public domain under this Act or to corporations organized in the
Philippines authorized therefore by their charters.
Except in cases of hereditary successions, no land or any portion
thereof originally acquired under the free patent, homestead, or
individual sale provisions of this Act, or any permanent improvement
on such land, shall be transferred or assigned to any individual, nor
shall such land or any permanent improvement thereon be leased to
such individual, when the area of said land, added to that of his own,
shall exceed one hundred and forty-four hectares. Any transfer,
assignment, or lease made in violation hereto shall be null and
void. (As amended by Com. Act No. 615, Id.)
xxxxxxxxx
Sec. 124. Any acquisition, conveyance, alienation, transfer, or other
contract made or executed in violation of any of the provisions of
sections one hundred and eighteen, one hundred and twenty, one
hundred and twenty-one, one hundred and twenty-two, and one
hundred and twenty-three of this Act shall be unlawful and null and
void from its execution and shall produce the effect of annulling and
cancelling the grant, title, patent, or permit originally issued,
recognized or confirmed, actually or presumptively, and cause the
reversion of the property and its improvements to the State.
(Underscoring supplied.)
The foregoing legal provisions clearly proscribe the encumbrance

of a parcel of land acquired under a free patent or homestead within
five years from the grant of such patent. Furthermore, such
encumbrance results in the cancellation of the grant and the reversion
of the land to the public domain. Encumbrance has been defined as
[a]nything that impairs the use or transfer of property; anything which
constitutes a burden on the title; a burden or charge upon property; a
claim or lien upon property. It may be a legal claim on an estate for
the discharge of which the estate is liable; an embarrassment of the
estate or property so that it cannot be disposed of without being
subject to it; an estate, interest, or right in lands, diminishing their
value to the general owner; a liability resting upon an estate. [15] Do the
contracts of lease and mortgage executed within five (5) years from
the issuance of the patent constitute an encumbrance and violate the
terms and conditions of such patent? Respondent Court answered in
the negative:[16]
From the evidence adduced by both parties, it has been proved that
the area of the portion of the land, subject matter of the lease contract
(Exh. B) executed by and between Perfecto Advincula and Josefina L.
Morato is only 10 x 12 square meters, whereas the total area of the
land granted to Morato is 1,265 square meters. It is clear from this
that the portion of the land leased by Advincula does not significantly
affect Moratos ownership and possession. Above all, the
circumstances under which the lease was executed do not reflect a
voluntary and blatant intent to violate the conditions provided for in the
patent issued in her favor. On the contrary, Morato was compelled to
enter into that contract of lease out of sympathy and the goodness of
her heart to accommodate a fellow man. x x x
It is indisputable, however, that Respondent Morato cannot fully
use or enjoy the land during the duration of the lease contract. This
restriction on the enjoyment of her property sufficiently meets the
definition of an encumbrance under Section 118 of the Public Land
Act, because such contract impairs the use of the property by the

grantee. In a contract of lease which is consensual, bilateral, onerous
and commutative, the owner temporarily grants the use of his or her
property to another who undertakes to pay rent therefor.[17] During the
term of the lease, the grantee of the patent cannot enjoy the beneficial
use of the land leased. As already observed, the Public Land Act does
not permit a grantee of a free patent from encumbering any portion of
such land. Such encumbrance is a ground for the nullification of the
award.
Moratos resort to equity, i.e. that the lease was executed
allegedly out of the goodness of her heart without any intention of
violating the law, cannot help her. Equity, which has been aptly
described as justice outside legality, is applied only in the absence of,
and never against, statutory law or judicial rules of procedure. Positive
rules prevail over all abstract arguments based on equity contra
legem.[18]
Respondents failed to justify their position that the mortgage
should not be considered an encumbrance. Indeed, we do not find
any support for such contention. The questioned mortgage falls
squarely within the term encumbrance proscribed by Section 118 of
the Public Land Act.[19] Verily, a mortgage constitutes a legal limitation
on the estate, and the foreclosure of such mortgage would necessarily
result in the auction of the property.[20]
Even if only part of the property has been sold or alienated within
the prohibited period of five years from the issuance of the patent,
such alienation is a sufficient cause for the reversion of the whole
estate to the State. As a condition for the grant of a free patent to an
applicant, the law requires that the land should not be encumbered,
sold or alienated within five years from the issuance of the patent. The
sale or the alienation of part of the homestead violates that condition.
[21]
The prohibition against the encumbrance -- lease and mortgage

included -- of a homestead which, by analogy applies to a free patent,
is mandated by the rationale for the grant, viz.:[22]
It is well-known that the homestead laws were designed to distribute
disposable agricultural lots of the State to land-destitute citizens for
their home and cultivation. Pursuant to such benevolent intention the
State prohibits the sale or encumbrance of the homestead (Section
116) within five years after the grant of the patent. After that five-year
period the law impliedly permits alienation of the homestead; but in
line with the primordial purpose to favor the homesteader and his
family the statute provides that such alienation or conveyance
(Section 117) shall be subject to the right of repurchase by the
homesteader, his widow or heirs within five years. This section 117 is
undoubtedly a complement of section 116. It aims to preserve and
keep in the family of the homesteader that portion of public land which
the State had gratuitously given to him. It would, therefore, be in
keeping with this fundamental idea to hold, as we hold, that the right
to repurchase exists not only when the original homesteader makes
the conveyance, but also when it is made by his widow or heirs. This
construction is clearly deducible from the terms of the statute.
By express provision of Section 118 of Commonwealth Act 141
and in conformity with the policy of the law, any transfer or alienation
of a free patent or homestead within five years from the issuance of
the patent is proscribed. Such transfer nullifies said alienation and
constitutes a cause for the reversion of the property to the State.
The prohibition against any alienation or encumbrance of the land
grant is a proviso attached to the approval of every application.
[23]
Prior to the fulfillment of the requirements of law, Respondent
Morato had only an inchoate right to the property; such property
remained part of the public domain and, therefore, not susceptible to
alienation or encumbrance. Conversely, when a homesteader has
complied with all the terms and conditions which entitled him to a

patent for [a] particular tract of public land, he acquires a vested
interest therein and has to be regarded an equitable owner thereof.
[24]
However, for Respondent Moratos title of ownership over the
patented land to be perfected, she should have complied with the
requirements of the law, one of which was to keep the property for
herself and her family within the prescribed period of five (5)
years. Prior to the fulfillment of all requirements of the law,
Respondent
Moratos
title
over
the
property
was
incomplete. Accordingly, if the requirements are not complied with, the
State as the grantor could petition for the annulment of the patent and
the cancellation of the title.
Respondent Morato cannot use the doctrine of the indefeasibility
of her Torrens title to bar the state from questioning its transfer or
encumbrance. The certificate of title issued to her clearly stipulated
that its award was subject to the conditions provided for in Sections
118, 119, 121, 122 and 124 of Commonwealth Act (CA) No.
141. Because she violated Section 118, the reversion of the property
to the public domain necessarily follows, pursuant to Section 124.
question. It cannot therefore be said to be foreshore land but land

outside of the public dominion, and land capable of registration as
private property.
A foreshore land, on the other hand has been defined as follows:
... that part of (the land) which is between high and low water and left
dry by the flux and reflux of the tides x x x x (Republic vs. C.A., Nos.
L-43105, L-43190, August 31, 1984, 131 SCRA 532; Government
vs. Colegio de San Jose, 53 Phil 423)
The strip of land that lies between the high and low water marks and
that is alternatively wet and dry according to the flow of the tide. (Rep.
vs. CA, supra, 539).
The factual findings of the lower court regarding the nature of the
parcel of land in question reads:
First of all, the issue here is whether the land in question, is really part
of the foreshore lands. The Supreme Court defines foreshore land in
the case of Republic vs. Alagad, 169 SCRA 455, 464, as follows:
Evidence disclose that the marginal area of the land radically changed
sometime in 1937 up to 1955 due to a strong earthquake followed by
frequent storms eventually eroding the land. From 1955 to 1968,
however, gradual reclamation was undertaken by the lumber company
owned by the Moratos. Having thus restored the land thru mostly
human hands employed by the lumber company, the area continued
to be utilized by the owner of the sawmill up to the time of his death in
1965. On or about March 17, 1973, there again was a strong
earthquake unfortunately causing destruction to hundreds of
residential houses fronting the Calauag Bay including the Santiago
Building, a cinema house constructed of concrete materials. The
catastrophe totally caused the sinking of a concrete bridge at
Sumulong river also in the municipality of Calauag, Quezon.
Otherwise, where the rise in water level is due to, the extraordinary
action of nature, rainful, for instance, the portions inundated thereby
are not considered part of the bed or basin of the body of water in
On November 13, 1977 a typhoon code named Unding wrought havoc

as it lashed the main land of Calauag, Quezon causing again great
erosion this time than that which the area suffered in 1937. The Court
Second Issue: Foreshore Land Reverts to the Public Domain

There is yet another reason for granting this petition.
Although Respondent Court found that the subject land was
foreshore land, it nevertheless sustained the award thereof to
Respondent Morato:[25]

noted with the significance of the newspaper clipping entitled Baryo
ng Mangingisda Kinain ng Dagat (Exh. 11).
xxxxxxxxx
Evidently this was the condition of the land when on or about
December 5, 1972 defendant Josefina L. Morato filed with the Bureau
of Lands her free patent application. The defendant Josefina Morato
having taken possession of the land after the demise of Don Tomas
Morato, she introduced improvement and continued developing the
area, planted it to coconut trees. Having applied for a free patent,
defendant had the land area surveyed and an approved plan (Exh. 9)
based on the cadastral survey as early as 1927 (Exh. 10) was
secured. The area was declared for taxation purposes in the name of
defendant Josefina Morato denominated as Tax Declaration No. 4115
(Exh. 8) and the corresponding realty taxes religiously paid as shown
by Exh. 8-A). (pp. 12-14, DECISION).
Being supported by substantial evidence and for failure of the
appellant to show cause which would warrant disturbance, the aforecited findings of the lower court, must be respected.
Petitioner correctly contends, however, that Private Respondent
Morato cannot own foreshore land:
Through the encroachment or erosion by the ebb and flow of the tide,
a portion of the subject land was invaded by the waves and sea
advances. During high tide, at least half of the land (632.5 square
meters) is 6 feet deep under water and three (3) feet deep during low
tide. The Calauag Bay shore has extended up to a portion of the
questioned land.
While at the time of the grant of free patent to respondent Morato, the
land was not reached by the water, however, due to gradual sinking of
the land caused by natural calamities, the sea advances had
permanently invaded a portion of subject land. As disclosed at the

trial, through the testimony of the court-appointed commissioner, Engr.
Abraham B. Pili, the land was under water during high tide in the
month of August 1978. The water margin covers half of the property,
but during low tide, the water is about a kilometer (TSN, July 19,
1979, p. 12). Also, in 1974, after the grant of the patent, the land was
covered with vegetation, but it disappeared in 1978 when the land
was reached by the tides (Exhs. E-1; E-14). In fact, in its decision
dated December 28, 1983, the lower court observed that the erosion
of the land was caused by natural calamities that struck the place in
1977 (Cf. Decision, pp. 17-18).[26]
Respondent-Spouses Quilatan argue, however, that it is unfair
and unjust if Josefina Morato will be deprived of the whole property
just because a portion thereof was immersed in water for reasons not
her own doing.[27]
As a general rule, findings of facts of the Court of Appeals are
binding and conclusive upon this Court, unless such factual findings
are palpably unsupported by the evidence on record or unless the
judgment itself is based on a misapprehension of facts.[28] The
application for a free patent was made in 1972. From the undisputed
factual findings of the Court of Appeals, however, the land has since
become foreshore. Accordingly, it can no longer be subject of a free
patent under the Public Land Act. Government of the Philippine
Islands vs. Cabagis[29]explained the rationale for this proscription:
Article 339, subsection 1, of the Civil Code, reads:
Art. 339. Property of public ownership is
1. That devoted to public use, such as roads, canals, rivers, torrents,
ports and bridges constructed by the State, riverbanks, shores,
roadsteads, and that of a similar character.

********
Article 1, case 3, of the Law of Waters of August 3, 1866, provides as
follows:
ARTICLE 1. The following are part of the national domain open to
public use:
********
3. The Shores. By the shore is understood that space covered and
uncovered by the movement of the tide. Its interior or terrestrial limit is
the line reached by the highest equinoctal tides. Where the tides are
not appreciable, the shore begins on the land side at the line reached
by the sea during ordinary storms or tempests.
In the case of Aragon vs. Insular Government (19 Phil. 223), with
reference to article 339 of the Civil Code just quoted, this Court said:
We should not be understood, by this decision, to hold that in a case
of gradual encroachment or erosion by the ebb and flow of the tide,
private property may not become property of public ownership. as
defined in article 339 of the code, where it appear that the owner has
to all intents and purposes abandoned it and permitted it to be totally
destroyed, so as to become a part of the playa (shore of the sea),
rada (roadstead), or the like. * * *
In the Enciclopedia Jurdica Espaola, volume XII, page 558, we read
the following:
With relative frequency the opposite phenomenon occurs; that is, the
sea advances and private properties are permanently invaded by the
waves, and in this case they become part of the shore or beach. They
then pass to the public domain, but the owner thus dispossessed
does not retain any right to the natural products resulting from their
new nature; it is a de facto case of eminent domain, and not subject to

indemnity.
In comparison, Article 420 of the Civil Code provides:
Art. 420. The following things are property of public dominion:
(1) Those intended for public use, such as roads, canals,
rivers, torrents, ports and bridges constructed by the
State, banks, shores, roadsteads, and others of similar
character;
(2) Those which belong to the State, without being for public
use, and are intended for some public service or for the
development of the national wealth.
When the sea moved towards the estate and the tide invaded it,
the invaded property became foreshore land and passed to the realm
of the public domain. In fact, the Court inGovernment vs.
Cabangis[30] annulled the registration of land subject of cadastral
proceedings when the parcel subsequently became foreshore land.
[31]
In another case, the Court voided the registration decree of a trial
court and held that said court had no jurisdiction to award foreshore
land to any private person or entity.[32] The subject land in this case,
being foreshore land, should therefore be returned to the public
domain.
WHEREFORE, the petition is GRANTED. This Court
hereby REVERSES and SETS ASIDE the assailed Decision of
Respondent Court and ORDERS the CANCELLATION of Free Patent
No. (IV-3) 275 issued to Respondent Morato and the subsequent
Original Certificate of Title No. P-17789. The subject land
therefore REVERTS to the State. No costs.
SO ORDERED.

G.R. No. L-24440
March 28, 1968
THE PROVINCE OF ZAMBOANGA DEL NORTE, plaintiff-appellee,

vs.
CITY OF ZAMBOANGA, SECRETARY OF FINANCE and
COMMISSIONER OF INTERNAL REVENUE,defendants-appellants.
Fortugaleza, Lood, Sarmiento, M. T. Yap & Associates for plaintiffappellee.
Office of the Solicitor General for defendants-appellants.
BENGZON, J.P., J.:
Prior to its incorporation as a chartered city, the Municipality of
Zamboanga used to be the provincial capital of the then Zamboanga
Province. On October 12, 1936, Commonwealth Act 39 was approved
converting the Municipality of Zamboanga into Zamboanga City. Sec.
50 of the Act also provided that
Buildings and properties which the province shall
abandon upon the transfer of the capital to another place will
be acquired and paid for by the City of Zamboanga at a price
to be fixed by the Auditor General.
The properties and buildings referred to consisted of 50 lots and
some buildings constructed thereon, located in the City of Zamboanga
and covered individually by Torrens certificates of title in the name of
Zamboanga Province. As far as can be gleaned from the
records, 1 said properties were being utilized as follows
No. of
Lots
1 ................................................ Trade School

2 ................................................ Burleigh School
2 ................................................ High School Playground
9 ................................................ Burleighs
1 ................................................ Hydro-Electric Site (Magay)
1 ................................................ San Roque
23 ................................................ vacant
It appears that in 1945, the capital of Zamboanga Province was
transferred to Dipolog. 2 Subsequently, or on June 16, 1948, Republic
Act 286 was approved creating the municipality of Molave and making
it the capital of Zamboanga Province.
On May 26, 1949, the Appraisal Committee formed by the
Auditor General, pursuant to Commonwealth Act 39, fixed the value of
the properties and buildings in question left by Zamboanga Province
in Zamboanga City at P1,294,244.00. 3
On June 6, 1952, Republic Act 711 was approved dividing the
province of Zamboanga into two (2): Zamboanga del Norte and
Zamboanga del Sur. As to how the assets and obligations of the old
province were to be divided between the two new ones, Sec. 6 of that
law provided:
Upon the approval of this Act, the funds, assets and
other properties and the obligations of the province of
Zamboanga shall be divided equitably between the Province of
Zamboanga del Norte and the Province of Zamboanga del Sur
by the President of the Philippines, upon the recommendation
of the Auditor General.
Use
1 ................................................ Capitol Site
3 ................................................ School Site
3 ................................................ Hospital Site
3 ................................................ Leprosarium
1 ................................................ Curuan School
Pursuant thereto, the Auditor General, on January 11, 1955,

apportioned the assets and obligations of the defunct Province of
Zamboanga as follows: 54.39% for Zamboanga del Norte and 45.61%
for Zamboanga del Sur. Zamboanga del Norte therefore became
entitled to 54.39% of P1,294,244.00, the total value of the lots and
buildings in question, or P704,220.05 payable by Zamboanga City.

On March 17, 1959, the Executive Secretary, by order of the
President, issued a ruling 4 holding that Zamboanga del Norte had a
vested right as owner (should be co-owner pro-indiviso) of the
properties mentioned in Sec. 50 of Commonwealth Act 39, and is
entitled to the price thereof, payable by Zamboanga City. This ruling
revoked the previous Cabinet Resolution of July 13, 1951 conveying
all the said 50 lots and buildings thereon to Zamboanga City for
P1.00, effective as of 1945, when the provincial capital of the then
Zamboanga Province was transferred to Dipolog.
The Secretary of Finance then authorized the Commissioner of
Internal Revenue to deduct an amount equal to 25% of the regular
internal revenue allotment for the City of Zamboanga for the quarter
ending March 31, 1960, then for the quarter ending June 30, 1960,
and again for the first quarter of the fiscal year 1960-1961. The
deductions, all aggregating P57,373.46, was credited to the province
of Zamboanga del Norte, in partial payment of the P764,220.05 due it.
However, on June 17, 1961, Republic Act 3039 was approved
amending Sec. 50 of Commonwealth Act 39 by providing that
All buildings, properties and assets belonging to the
former province of Zamboanga and located within the City of
Zamboanga are hereby transferred, free of charge, in favor of
the said City of Zamboanga. (Stressed for emphasis).
Consequently, the Secretary of Finance, on July 12, 1961,
ordered the Commissioner of Internal Revenue to stop from effecting
further payments to Zamboanga del Norte and to return to
Zamboanga City the sum of P57,373.46 taken from it out of the
internal revenue allotment of Zamboanga del Norte. Zamboanga City
admits that since the enactment of Republic Act 3039, P43,030.11 of
the P57,373.46 has already been returned to it.
This constrained plaintiff-appellee Zamboanga del Norte to file
on March 5, 1962, a complaint entitled "Declaratory Relief with
Preliminary Mandatory Injunction" in the Court of First Instance of
Zamboanga del Norte against defendants-appellants Zamboanga
City, the Secretary of Finance and the Commissioner of Internal
Revenue. It was prayed that: (a) Republic Act 3039 be declared
unconstitutional for depriving plaintiff province of property without due

process and just compensation; (b) Plaintiff's rights and obligations
under said law be declared; (c) The Secretary of Finance and the
Internal Revenue Commissioner be enjoined from reimbursing the
sum of P57,373.46 to defendant City; and (d) The latter be ordered to
continue paying the balance of P704,220.05 in quarterly installments
of 25% of its internal revenue allotments.
On June 4, 1962, the lower court ordered the issuance of
preliminary injunction as prayed for. After defendants filed their
respective answers, trial was held. On August 12, 1963, judgment was
rendered, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered declaring
Republic Act No. 3039 unconstitutional insofar as it deprives
plaintiff Zamboanga del Norte of its private properties,
consisting of 50 parcels of land and the improvements thereon
under certificates of title (Exhibits "A" to "A-49") in the name of
the defunct province of Zamboanga; ordering defendant City of
Zamboanga to pay to the plaintiff the sum of P704,220.05
payment thereof to be deducted from its regular quarterly
internal revenue allotment equivalent to 25% thereof every
quarter until said amount shall have been fully paid; ordering
defendant Secretary of Finance to direct defendant
Commissioner of Internal Revenue to deduct 25% from the
regular quarterly internal revenue allotment for defendant City
of Zamboanga and to remit the same to plaintiff Zamboanga
del Norte until said sum of P704,220.05 shall have been fully
paid; ordering plaintiff Zamboanga del Norte to execute
through its proper officials the corresponding public instrument
deeding to defendant City of Zamboanga the 50 parcels of
land and the improvements thereon under the certificates of
title (Exhibits "A" to "A-49") upon payment by the latter of the
aforesaid sum of P704,220.05 in full; dismissing the
counterclaim of defendant City of Zamboanga; and declaring
permanent the preliminary mandatory injunction issued on
June 8, 1962, pursuant to the order of the Court dated June 4,
1962. No costs are assessed against the defendants.
It is SO ORDERED.

Subsequently, but prior to the perfection of defendants' appeal,
plaintiff province filed a motion to reconsider praying that Zamboanga
City be ordered instead to pay the P704,220.05 in lump sum with 6%
interest per annum. Over defendants' opposition, the lower court
granted plaintiff province's motion.
The defendants then brought the case before Us on appeal.
Brushing aside the procedural point concerning the property of
declaratory relief filed in the lower court on the assertion that the law
had already been violated and that plaintiff sought to give it coercive
effect, since assuming the same to be true, the Rules anyway
authorize the conversion of the proceedings to an ordinary
action, 5 We proceed to the more important and principal question of
the validity of Republic Act 3039.
The validity of the law ultimately depends on the nature of the
50 lots and buildings thereon in question. For, the matter involved
here is the extent of legislative control over the properties of a
municipal corporation, of which a province is one. The principle itself
is simple: If the property is owned by the municipality (meaning
municipal corporation) in its public and governmental capacity, the
property is public and Congress has absolute control over it. But if the
property is owned in its private or proprietary capacity, then it is
patrimonial and Congress has no absolute control. The municipality
cannot be deprived of it without due process and payment of just
compensation. 6
The capacity in which the property is held is, however,
dependent on the use to which it is intended and devoted. Now, which
of two norms, i.e., that of the Civil Code or that obtaining under the
law of Municipal Corporations, must be used in classifying the
properties in question?
The Civil Code classification is embodied in its Arts. 423 and
424 which provide:1wph1.t
ART. 423. The property of provinces, cities, and

municipalities is divided into property for public use and
patrimonial property.
ART. 424. Property for public use, in the provinces,
cities, and municipalities, consists of the provincial roads, city
streets, municipal streets, the squares, fountains, public
waters, promenades, and public works for public service paid
for by said provinces, cities, or municipalities.
All other property possessed by any of them is patrimonial and
shall be governed by this Code, without prejudice to the
provisions of special laws. (Stressed for emphasis).
Applying the above cited norm, all the properties in question,
except the two (2) lots used as High School playgrounds, could be
considered as patrimonial properties of the former Zamboanga
province. Even the capital site, the hospital and leprosarium sites, and
the school sites will be considered patrimonial for they are not for
public use. They would fall under the phrase "public works for public
service" for it has been held that under the ejusdem generis rule, such
public works must be for free and indiscriminate use by anyone, just
like the preceding enumerated properties in the first paragraph of Art
424. 7 The playgrounds, however, would fit into this category.
This was the norm applied by the lower court. And it cannot be
said that its actuation was without jurisprudential precedent for
in Municipality of Catbalogan v. Director of Lands, 8 and in Municipality
of Tacloban v. Director of Lands, 9 it was held that the capitol site and
the school sites in municipalities constitute their patrimonial
properties. This result is understandable because, unlike in the
classification regarding State properties, properties for public service
in the municipalities are not classified as public. Assuming then the
Civil Code classification to be the chosen norm, the lower court must
be affirmed except with regard to the two (2) lots used as
playgrounds.
On the other hand, applying the norm obtaining under the
principles constituting the law of Municipal Corporations, all those of
the 50 properties in question which are devoted to public service are

deemed public; the rest remain patrimonial. Under this norm, to be
considered public, it is enough that the property be held and, devoted
for governmental purposes like local administration, public education,
public health, etc. 10
Supporting jurisprudence are found in the following cases: (1)
HINUNANGAN V. DIRECTOR OF LANDS, 11where it was stated that
"... where the municipality has occupied lands distinctly for public
purposes, such as for the municipal court house, the public school,
the public market, or other necessary municipal building, we will, in
the absence of proof to the contrary, presume a grant from the States
in favor of the municipality; but, as indicated by the wording, that rule
may be invoked only as to property which is used distinctly for public
purposes...." (2) VIUDA DE TANTOCO V. MUNICIPAL COUNCIL OF
ILOILO 12 held that municipal properties necessary for governmental
purposes are public in nature. Thus, the auto trucks used by the
municipality for street sprinkling, the police patrol automobile, police
stations and concrete structures with the corresponding lots used as
markets were declared exempt from execution and attachment since
they were not patrimonial properties. (3) MUNICIPALITY OF
BATANGAS VS. CANTOS 13 held squarely that a municipal lot which
had always been devoted to school purposes is one dedicated to
public use and is not patrimonial property of a municipality.
Following this classification, Republic Act 3039 is valid insofar
as it affects the lots used as capitol site, school sites and its grounds,
hospital and leprosarium sites and the high school playground sites
a total of 24 lots since these were held by the former Zamboanga
province in its governmental capacity and therefore are subject to the
absolute control of Congress. Said lots considered as public property
are the following:
TCT
Numbe
r
2200
2816
Lot Number
.................................
4-B
.....
.................................
149
.....
Use
................................. Capitol
.....
Site
.................................
School Site
.....
3281
3282
3283
3748
5406
.................................
.....
.................................
.....
.................................
.....
.................................
.....
.................................
.....
.................................
.....
.................................
1226
.....
.................................
1225
.....
434-A- .................................
1
.....
.................................
171
.....
1224
5564
.................................
168
.....
5567
................................. 157 & .................................

.....
158
.....
5583
.................................
167
.....
.................................
.....
.................................
11942
.....
.................................
11943
.....
.................................
11944
.....
.................................
5557
.....
.................................
5562
.....
.................................
5565
.....
.................................
5570
.....
.................................
5571
.....
6181
.................................
.....
.................................
.....
Hospital
Site
Hospital
Site
Hospital
Site
School Site
School Site
High
School
Playground
Trade
School
High
School
Playground
Curuan
School
Leprosariu
m
Leprosariu
m
Leprosariu
m
Burleigh
School
Burleigh
School
(O.C.T. .................................
)
.....
.................................
926
.....
.................................
927
.....
.................................
925
.....
.................................
170
.....
.................................
180
.....
.................................
172-B
Burleigh
.....
.................................
171-A
Burleigh
.....
.................................
172-C
Burleigh
.....

5572
5573
5585
5586
5587
.................................
.....
.................................
.....
.................................
.....
.................................
.....
.................................
.....
.................................
.....
.................................
178
.....
.................................
171-B
.....
.................................
173
.....
.................................
172-A
.....
174
Burleigh
Burleigh
Burleigh
Burleigh
Burleigh
We noticed that the eight Burleigh lots above described are

adjoining each other and in turn are between the two lots wherein the
Burleigh schools are built, as per records appearing herein and in the
Bureau of Lands. Hence, there is sufficient basis for holding that said
eight lots constitute the appurtenant grounds of the Burleigh schools,
and partake of the nature of the same.
Regarding the several buildings existing on the lots abovementioned, the records do not disclose whether they were constructed
at the expense of the former Province of Zamboanga. Considering
however the fact that said buildings must have been erected even
before 1936 when Commonwealth Act 39 was enacted and the further
fact that provinces then had no power to authorize construction of
buildings such as those in the case at bar at their own expense, 14 it
can be assumed that said buildings were erected by the National
Government, using national funds. Hence, Congress could very well
dispose of said buildings in the same manner that it did with the lots in
question.
But even assuming that provincial funds were used, still the
buildings constitute mere accessories to the lands, which are public in
nature, and so, they follow the nature of said lands, i.e., public.
Moreover, said buildings, though located in the city, will not be for the
exclusive use and benefit of city residents for they could be availed of
also by the provincial residents. The province then and its
successors-in-interest are not really deprived of the benefits
thereof.
But Republic Act 3039 cannot be applied to deprive Zamboanga

del Norte of its share in the value of the rest of the 26 remaining lots
which are patrimonial properties since they are not being utilized for
distinctly, governmental purposes. Said lots are:
TCT Number
....................................
5577
177
..
.................................... 12713198
..
0
....................................
5569
169
..
....................................
5558
175
..
....................................
5559
188
..
....................................
5560
183
..
....................................
5561
186
..
....................................
5563
191
..
....................................
5566
176
..
....................................
5568
179
..
....................................
5574
196
..
.................................... 1815575
..
A
.................................... 1815576
..
B
....................................
5578
182
..
....................................
5579
197
..
....................................
5580
195
..
Lot Number
Use
.................................... Mydro,
..
Magay
.................................... San
..
Roque
.................................... Burleigh 1
5
..
....................................
Vacant
..
....................................
"
..
....................................
"
..
....................................
"
..
....................................
"
..
....................................
"
..
....................................
"
..
....................................
"
..
....................................
"
..
....................................
"
..
....................................
"
..
....................................
"
..
....................................
"
..

5581
5582
5584
5588
5589
5590
5591
5592
5593
7379
.................................... 159- ....................................

..
B
..
....................................
....................................
194
..
..
....................................
....................................
190
..
..
....................................
....................................
184
..
..
....................................
....................................
187
..
..
....................................
....................................
189
..
..
....................................
....................................
192
..
..
....................................
....................................
193
..
..
....................................
....................................
185
..
..
....................................
....................................
4147
..
..
Moreover, the fact that these 26 lots are registered strengthens

the proposition that they are truly private in nature. On the other hand,
that the 24 lots used for governmental purposes are also registered is
of no significance since registration cannot convert public property to
private. 16
We are more inclined to uphold this latter view. The controversy
here is more along the domains of the Law of Municipal Corporations
State vs. Province than along that of Civil Law. Moreover, this
Court is not inclined to hold that municipal property held and devoted
to public service is in the same category as ordinary private property.
The consequences are dire. As ordinary private properties, they can
be levied upon and attached. They can even be acquired thru adverse
possession all these to the detriment of the local community. Lastly,
the classification of properties other than those for public use in the
municipalities as patrimonial under Art. 424 of the Civil Code is "...
without prejudice to the provisions of special laws." For purpose of this
article, the principles, obtaining under the Law of Municipal
"
"
"
"
"
"
"
"
"
"
Corporations can be considered as "special laws". Hence, the

classification of municipal property devoted for distinctly governmental
purposes as public should prevail over the Civil Code classification in
this particular case.
Defendants' claim that plaintiff and its predecessor-in-interest
are "guilty of laches is without merit. Under Commonwealth Act 39,
Sec. 50, the cause of action in favor of the defunct Zamboanga
Province arose only in 1949 after the Auditor General fixed the value
of the properties in question. While in 1951, the Cabinet resolved
transfer said properties practically for free to Zamboanga City, a
reconsideration thereof was seasonably sought. In 1952, the old
province was dissolved. As successor-in-interest to more than half of
the properties involved, Zamboanga del Norte was able to get a
reconsideration of the Cabinet Resolution in 1959. In fact, partial
payments were effected subsequently and it was only after the
passage of Republic Act 3039 in 1961 that the present controversy
arose. Plaintiff brought suit in 1962. All the foregoing, negative laches.
It results then that Zamboanga del Norte is still entitled to
collect from the City of Zamboanga the former's 54.39% share in the
26 properties which are patrimonial in nature, said share to computed
on the basis of the valuation of said 26 properties as contained in
Resolution No. 7, dated March 26, 1949, of the Appraisal Committee
formed by the Auditor General.
Plaintiff's share, however, cannot be paid in lump sum, except
as to the P43,030.11 already returned to defendant City. The return of
said amount to defendant was without legal basis. Republic Act 3039
took effect only on June 17, 1961 after a partial payment of
P57,373.46 had already been made. Since the law did not provide for
retroactivity, it could not have validly affected a completed act. Hence,
the amount of P43,030.11 should be immediately returned by
defendant City to plaintiff province. The remaining balance, if any, in
the amount of plaintiff's 54.39% share in the 26 lots should then be
paid by defendant City in the same manner originally adopted by the
Secretary of Finance and the Commissioner of Internal Revenue, and
not in lump sum. Plaintiff's prayer, particularly pars. 5 and 6, read
together with pars. 10 and 11 of the first cause of action recited in the
complaint 17clearly shows that the relief sought was merely the

continuance of the quarterly payments from the internal revenue
allotments of defendant City. Art. 1169 of the Civil Code on reciprocal
obligations invoked by plaintiff to justify lump sum payment is
inapplicable since there has been so far in legal contemplation no
complete delivery of the lots in question. The titles to the registered
lots are not yet in the name of defendant Zamboanga City.
WHEREFORE, the decision appealed from is hereby set aside
and another judgment is hereby entered as follows:.
(1) Defendant Zamboanga City is hereby ordered to return to
plaintiff Zamboanga del Norte in lump sum the amount of P43,030.11
which the former took back from the latter out of the sum of
P57,373.46 previously paid to the latter; and
(2) Defendants are hereby ordered to effect payments in favor
of plaintiff of whatever balance remains of plaintiff's 54.39% share in
the 26 patrimonial properties, after deducting therefrom the sum of
P57,373.46, on the basis of Resolution No. 7 dated March 26, 1949 of
the Appraisal Committee formed by the Auditor General, by way of
quarterly payments from the allotments of defendant City, in the
manner originally adopted by the Secretary of Finance and the
Commissioner of Internal Revenue. No costs. So ordered

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Property in Relation To The Person Where It Belongs

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Property Law | Property in Relation to the Person Where it Belongs | Page 1 of 40

G.R. No. 92013 July 25, 1990

explain the proceedings which effectively prevent the

GUTIERREZ, JR., J.:

Property Law | Property in Relation to the Person Where it Belongs | Page 2 of 40

government to provide necessary funds, the Roppongi property

Property Law | Property in Relation to the Person Where it Belongs | Page 3 of 40

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order contravenes the constitutional mandate to conserve and

The respondents add that even assuming for the sake of

(1) The reservation of the ownership and acquisition of alienable

(2) The preference for Filipino citizens in the grant of rights,

Property Law | Property in Relation to the Person Where it Belongs | Page 5 of 40

(Taken from 3 Manresa, 66-69; cited in Tolentino, Commentaries

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the properties available to foreigners and not to Filipinos

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dispose of property belonging to the State. And the validity of the

The respondents try to get around the public dominion character

The assertion that the opinion of the Secretary of Justice sheds

It is exceedingly strange why our top government officials, of all

The subsequent approval on October 4, 1988 by President

In the instant case, none of the above elements exists.

Section 79 (f) of the Revised Administrative Code of 1917

Property Law | Property in Relation to the Person Where it Belongs | Page 8 of 40

(2) For property belonging to the Republic of the

Property Law | Property in Relation to the Person Where it Belongs | Page 9 of 40

occupation, for the suffering of widows and

The Court does not ordinarily pass upon constitutional

Roppongi is no ordinary property. It is one ceded

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It is clear that the respondents have failed to show the

PADILLA, J., concurring:

I concur in the decision penned by Mr. Justice Gutierrez, Jr., I

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Public dominion property intended for public service cannot be

Property Law | Property in Relation to the Person Where it Belongs | Page 12 of 40

Property Law | Property in Relation to the Person Where it Belongs | Page 13 of 40

JUAN VIADO HILARION CHIOCO, EUROPIA CABAHUG,

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dismissing their petition for injunction and mandamus to enjoin the

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home.' The petitioners' argument in their appeal to this

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whereby Congress converted the lot in question together with another

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3. That the time during which the vending area is to be

Property Law | Property in Relation to the Person Where it Belongs | Page 20 of 40

The sole issue to be resolved in this case is whether or not an

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Based on the foregoing, J. Gabriel G.G. Cruz, Bayanihan, Lt. Garcia

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There is no doubt that the disputed areas from which

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obligations existing on the date of effectivity of the new Code and

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Sometime in December, 1972, respondent Morato filed a Free Patent

Subsequently, the District Land Officer in Lucena City, acting upon

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x x x. As ruled in Heirs of Gregorio Tengco vs. Heirs of Jose Alivalas,