REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
Manila

MAYOR MAURICIO G.
DOMOGAN, in his capacity
as Mayor of Baguio City,
Councilors ARTHUR L.
ALLAD-IW, JOEL ALANGSAB,
EDGAR M. AVILA, ET AL.,
Petitioner, CA-G.R. CV No. 102180

- versus - for

HON. MARIA LIGAYA ITLIONG- CERTIORARI

RIVERA in her capacity as
Presiding Judge of RTC 5,
Baguio City and ELENA T. LAO,
Respondents.
X ----------------------------------X

REPLY
(To the Petition for Certiorari)

With all due respect.

Private Respondent, by counsel, unto the Honorable
Court, by way of reply to the Petition for Certiorari filed by the
Petitioners, most respectfully avers by way of:
SUBMISSIONS
1. The Honorable Respondent Court’s admission of the
Amended Petition of the Private Respondent is well within its
exercise of judicial power under Section 1 Article VIII of the
Constitution.
2. The Honorable Respondent Court’s resolution finding
that the Private Respondent has locus standi to file the
Petition before it is supported by law and jurisprudence.
3. The Amended Petition filed by Private Respondent is
in accordance with the Rules of Court.
4. The Amended Petition filed by the Private Respondent
is not a new Petition.
5. The assailed Amended Petition is not a new cause of
action and is an actual controversy.
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 6. The assailed Amended Petition is not a collateral
attack on the Trade Fair Ordinance of Baguio but is in fact an
action which seeks its enforcement.
7. The Amended Petition filed by the Private Respondent
seeks to enjoin an activity which is in violation of the basic
tenets of the Constitution that public parks are beyond the
commerce of man.
DISCUSSION
1. The Honorable Respondent Court’s
admission of the Amended Petition of
the Private Respondent is well within
its exercise of judicial power under
Section 1 Article VIII of the
Constitution.
While indeed the City Government of Baguio was vested
“full control of the administration, operation, management,
maintenance and further development of Burnham Park”
under Executive Order No. 695, this power is not absolute.
Such powers of the legislative and executive departments
of the local government are still subject to limitations under
the Constitution and other law of the State.
In fact, Executive Order No. 695 itself likewise lays down
the limitations on the city government’s exercise of this power
to manage Burnham Park as it mandates that “all revenues
and collections generated from Burnham Park shall accrue to
the treasury of the City Government of Baguio and shall first
be used for the operation, management and maintenance of
the Park. Any net profit not needed for management,
operation and maintenance of Burnham Park shall be shared
equally by the City and the PTA.”
The assailed Resolution of the Petitioners herein is in
blatant violations of these laws as well as the Constitution.
This being the case, the Honorable Respondent Court was well
within its jurisdiction to exercise its judicial power.
The case in point herein is the case of Macasiano vs
Diokno1 where the Honorable Supreme Court held thus:

1
G.R. No. 97764 August 10, 1992

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 “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.”

2. The Honorable Respondent Court’s

resolution finding that the Private
Respondent has locus standi to file the
Petition before it is supported by law
and jurisprudence.
The Resolution of the Honorable Respondent Court on
the matter of the locus standi of the Private Respondent to file
the Amended Petition has long been ruled upon by the
Honorable Respondent Court and from which the herein
Petitioners did not file any Petition to question the said
resolution after their motion for reconsideration was denied.
They should not therefore be allowed to again raise the said
issue herein.
Nonetheless, as correctly ruled by the Honorable
Respondent Court, the Petitioner has a legal standing to file
the Petition.
The rule in this jurisdiction in the matter of determining
the locus standi of a petitioner was laid down in a plethora of
case, one of which is the case of Biraogo vs The Philippine

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Truth Commission of 20102 where the Supreme Court stated
thus:
“Locus standi is defined as "a right of appearance in
a court of justice on a given question." In private
suits, standing is governed by the "real-parties-in
interest" rule as contained in Section 2, Rule 3 of
the 1997 Rules of Civil Procedure, as amended. It
provides that "every action must be prosecuted or
defended in the name of the real party in interest."
Accordingly, the "real-party-in interest" is "the party
who stands to be benefited or injured by the
judgment in the suit or the party entitled to the
avails of the suit." Succinctly put, the plaintiff’s
standing is based on his own right to the relief
sought.
The difficulty of determining locus standi arises in
public suits. Here, the plaintiff who asserts a
"public right" in assailing an allegedly illegal official
action, does so as a representative of the general
public. He may be a person who is affected no
differently from any other person. He could be suing
as a "stranger," or in the category of a "citizen," or
‘taxpayer." In either case, he has to adequately show
that he is entitled to seek judicial protection. In
other words, he has to make out a sufficient interest
in the vindication of the public order and the
securing of relief as a "citizen" or "taxpayer.
Case law in most jurisdictions now allows both
"citizen" and "taxpayer" standing in public actions.
The distinction was first laid down in Beauchamp v.
Silk, where it was held that the plaintiff in a
taxpayer’s suit is in a different category from the
plaintiff in a citizen’s suit. In the former, the
plaintiff is affected by the expenditure of public
funds, while in the latter, he is but the mere
instrument of the public concern. As held by the
New York Supreme Court in People ex rel Case v.
Collins: "In matter of mere public right, however…
the people are the real parties…It is at least the
right, if not the duty, of every citizen to interfere and
see that a public offence be properly pursued and
punished, and that a public grievance be remedied."
With respect to taxpayer’s suits, Terr v. Jordan held
that "the right of a citizen and a taxpayer to
2
G.R. No. 192935, December 7, 2010
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 maintain an action in courts to restrain the
unlawful use of public funds to his injury cannot be
denied."
However, to prevent just about any person from
seeking judicial interference in any official policy or
act with which he disagreed with, and thus hinders
the activities of governmental agencies engaged in
public service, the United State Supreme Court laid
down the more stringent "direct injury" test in Ex
Parte Levitt, later reaffirmed in Tileston v. Ullman.
The same Court ruled that for a private individual to
invoke the judicial power to determine the validity of
an executive or legislative action, he must show that
he has sustained a direct injury as a result of that
action, and it is not sufficient that he has a general
interest common to all members of the public.
This Court adopted the "direct injury" test in our
jurisdiction. In People v. Vera, it held that the
person who impugns the validity of a statute must
have "a personal and substantial interest in the
case such that he has sustained, or will sustain
direct injury as a result." The Vera doctrine was
upheld in a litany of cases, such as, Custodio v.
President of the Senate, Manila Race Horse
Trainers’ Association v. De la Fuente, Pascual v.
Secretary of Public Works and Anti-Chinese League
of the Philippines v. Felix.
Notwithstanding, the Court leans on the doctrine
that "the rule on standing is a matter of
procedure, hence, can be relaxed for
nontraditional plaintiffs like ordinary citizens,
taxpayers, and legislators when the public
interest so requires, such as when the matter is
of transcendental importance, of overreaching
significance to society, or of paramount public
interest."(emphasis supplied, citations omitted)
The Private Respondent in this case filed the petition not
only as a taxpayer assailing the actuations of both the
executive and legislative branches of the local government of
the city of Baguio but as a private citizen as well, being a
business woman whose business would surely suffer damages
had the illegal trade fair been allowed to proceed. It cannot
therefore be said that her interest in the prevention of the
trade fair is merely a general interest. The trade fair presented

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unfair competition to Private Respondent’s business
considering that the conduct of the same is illegal and the
government officials of the city of Baguio attempted to give the
choicest location in the city for the said trade fair.
Further, the protection of Burnham Park which is a
National Park is likewise undoubtedly a matter of paramount
public interest. The prevention of its degradation by an illegal
act of the Petitioners undoubtedly calls for judicial
intervention. The Private Respondent is a concerned citizen
who has continually fought activities which tend to degrade
the environment most specially in the city of Baguio where she
was born and raised.
It is sad to note that the government officials of the city of
Baguio claim that the preservation of Burnham Park as a
National Park and not a commercial center is not a matter of
transcendental importance.
3. The Amended Petition filed by
Private Respondent is in accordance
with the Rules of Court.
In a long line of cases, the Honorable Supreme Court had
consistently adhered to “the principle that amendments of
pleadings are favored and should be liberally allowed in the
furtherance of justice in order to determine every case as far
as possible on its merits without regard to technicalities, to
speed up trial and save party litigants from incurring
unnecessary expense, so that a full hearing on the merits of
every case may be had and multiplicity of suits avoided.”
A perusal of the Amended Petition filed by Private
Respondent would readily show that the portions where
changes were made were duly marked by bold letters and
underlines. Petitioners’ claim that the new allegations were not
indicated by appropriate marks is false.
The petition is likewise appended to the Amended
Petition a Motion for Leave to file Amended Petition, hence,
there can be no mistaking that the same is the Amended
Petition referred to.
4. The Amended Petition filed by the
Private Respondent is not a new
Petition.
The instant case was in fact earlier declared terminated
as the issue raised in the original Petition has become moot
and academic. The herein Petitioners however sought a
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reconsideration from the said order of the Honorable
Respondent Court, which the latter granted on the ground
that there indeed is a further issue on the conduct of future
trade fairs as stated in the prayer of the original Petition.
It was in accordance with the said finding or ruling of the
Honorable Respondent Court that the Private Respondent
sought for leave to file the Amended Petition.
Section 3, Rule 10 of the Rules of Court specifically
allows amendment by leave of court. The said Section states:
“SECTION 3. Amendments by leave of court. –
Except as provided in the next preceding section,
substantial amendments may be made only upon
leave of court. But such leave may be refused if it
appears to the court that the motion was made with
intent to delay. Orders of the court upon the
matters provided in this section shall be made upon
motion filed in court, and after notice to the adverse
party, and an opportunity to be heard.”
In explaining the import of the revision of this provision
from the old rule, the Supreme Court, in the case of Lisam
Enterprises, Inc. vs Banco de Oro3 stated thus:
“Interestingly, Section 3, Rule 10 of the 1997 Rules of
Civil Procedure amended the former rule in such manner that
the phrase “or that the cause of action or defense is
substantially altered” was stricken-off and not retained in the
new rules. The clear import of such amendment in Section
3, Rule 10 is that under the new rules, “the amendment
may (now) substantially alter the cause of action or
defense.”(emphasis ours)
The admission of an Amended Petition now rests upon
the discretion of the Honorable Respondent Court, limited only
by the proviso that the same is not intended for delay.
Considering that this case is still undergoing pre-trial,
amendment of the petition is not only proper but favored in
order to the case be decided on the merits without
unnecessary delay.
Further, should the Petitioners insist that the
amendment is improper as the only issue is the holding of
the Grand Christmas Bazaar, then this case should be
terminated for being moot and academic.

3
G.R. No. 143264, April 23, 2012
Page | 7
5. The cause of action raised in the
Amended Petition is an actual
controversy.
The Amended Petition seeks to put an end to the practice
of the Petitioners in blatantly defying the basic tenets of the
Constitution as well as its own ordinance prohibiting the
conduct of trade fairs in a public park.
The fact that the Petitioners have repeatedly conducted
trade fairs at Burnham Park is not unknown. At the time the
motion to amend the petition was made, another trade fair
was in fact on going therein.
It is also of common knowledge that the annual Market
Encounter which is part of the Panagbenga Festival
celebration is also held at Burnham Park. This much, the
Private Respondent has alleged in paragraph 2 of her amended
petition.
To say therefore that there is no actual controversy is
both hypocritical and specious. The purpose of an injunction
is to stop or enjoin that which is yet to occur or happen.
6. The assailed Amended Petition is
not a collateral attack on the Trade
Fair Ordinance of Baguio but is in fact
an action which seeks its enforcement.
As discussed in the foregoing, the petitioner seeks to
enforce the provisions of the Trade Fair Ordinance, not assail
it.
The Section 2 of the Trade Fair Ordinance which is
Ordinance No. 13 Series of 2012, specifically prohibits the
conduct of trade fairs at Burnham Park thus:
“SECTION 2. It is hereby declared a policy of
the Local Government of Baguio to regulate trade
fairs in the City of Baguio by allowing the conduct of
trade fairs for a period of not exceeding 15 days in
suitable private places only and to totally disallow
the conduct of trade fairs and other similar
activities in all city-owned or city-managed public
parks, including government owned and controlled
properties and facilities that promote agricultural
industrial, indigenous and commercial products,
crafts and other merchandise through inter-regional
trading that will foster better livelihood

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 opportunities, enhance local tourism, and help
advance economic development.”
The Resolution of the Petitioners which the Private
Respondent seeks to be declared null and void is a blatant
violation of the foregoing provision of the Trade Fair
Ordinance.
7. The Amended Petition filed by the
Private Respondent seeks to enjoin an
activity which is in violation of the
basic tenet of the Constitution that
public parks are beyond the commerce
of man.
The fact that Burnham Park is a national park is beyond
question. Under Proclamation No. 64 dated August 6, 1925,
Burnham Park Reservation was reserved for park purposes. It
was devolved to the city government through Executive Order
695.
Jurisprudence is replete with cases where the court ruled
that parks are beyond the commerce of man and cannot be
subject of lease or any other contractual undertaking. This
being the case, it is beyond the authority of the Petitioners to
allow the Hotel and Restaurant Association of Baguio to enter
into contracts of lease over portions of the park. What the city
cannot do directly, it likewise cannot do indirectly.
The following jurisprudence are instructive:
• G.R. No. L-61311 September 2l, 1987 Villanueva et al.
vs. Castaneda
“A public plaza is beyond the commerce of man and so cannot
be the subject of lease or any other contractual undertaking.
This is elementary. Indeed, this point was settled as early as in
Municipality of Cavite vs. Rojas, decided in 1915, where the
Court declared as null and void the lease of a public plaza of
the said municipality in favor of a private person.
Justice Torres said in that case:
According to article 344 of the Civil Code: "Property for public
use in provinces and in towns comprises the provincial and
town roads, the squares, streets, fountains, and public waters,
the promenades, and public works of general service
supported by said towns or provinces.
The said Plaza Soledad being a promenade for public use, the
municipal council of Cavite could not in 1907 withdraw or
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exclude from public use a portion thereof in order to lease it
for the sole benefit of the defendant Hilaria Rojas. In leasing a
portion of said plaza or public place to the defendant for
private use the plaintiff municipality exceeded its authority in
the exercise of its powers by executing a contract over a thing
of which it could not dispose, nor is it empowered so to do.
The Civil Code, article 1271, prescribes that everything which
is not outside the commerce of man may be the object of a
contract, and plazas and streets are outside of this commerce,
as was decided by the supreme court of Spain in its decision of
February 12, 1895, which says: "communal things that cannot
be sold because they are by their very nature outside of
commerce are those for public use, such as the plazas, streets,
common lands, rivers, fountains, etc."
Therefore, it must be concluded that the contract, Exhibit C,
whereby the municipality of Cavite leased to Hilaria Rojas a
portion of the Plaza Soledad is null and void and of no force or
effect, because it is contrary to the law and the thing leased
cannot be the object of a was held that the City of contract.
• In In Muyot vs. de la Fuente4, it was held that the City of
Manila could not lease a portion of a public sidewalk on Plaza
Sta. Cruz, being likewise beyond the commerce of man.
Echoing Rojas, the decision said:
Appellants claim that they had obtained permit from the
present of the City of Manila, to connect booths Nos. 1 and 2,
along the premises in question, and for the use of spaces
where the booths were constructed, they had paid and
continued paying the corresponding rentals. Granting this
claim to be true, one should not entertain any doubt that such
permit was not legal, because the City of Manila does not have
any power or authority at all to lease a portion of a public
sidewalk. The sidewalk in question, forming part of the public
plaza of Sta. Cruz, could not be a proper subject matter of the
contract, as it was not within the commerce of man (Article
1347, new Civil Code, and article 1271, old Civil Code). Any
contract entered into by the City of Manila in connection with
the sidewalk, is ipso facto null and ultra vires. (Municipality of
Cavite vs. Roxas, et a1, 30 Phil. 603.) The sidewalk in question
was intended for and was used by the public, in going from
one place to another. "The streets and public places of the city
shall be kept free and clear for the use of the public, and the
sidewalks and crossings for the pedestrians, and the same
shall only be used or occupied for other purpose as provided
4
G.R. No. L-653448 O.R. 4860
Page | 10
by ordinance or regulation; ..." (Sec. 1119, Revised Ordinances
of the City of Manila.) The booths in question served as fruit
stands for their owners and often, if not always, blocked the
fire passage of pedestrians who had to take the plaza itself
which used to be clogged with vehicular traffic.
• Exactly in point is Espiritu vs. Municipal Council of
Pozorrubio5, where the Supreme Court declared:
“There is absolutely no question that the town plaza cannot be
used for the construction of market stalls, specially of
residences, and that such structures constitute a nuisance
subject to abatement according to law. Town plazas are
properties of public dominion, to be devoted to public use and
to be made available to the public in general. They are outside
the commerce of man and cannot be disposed of or even
leased by the municipality to private parties.
The regular stallholders in the public market, who pay
substantial rentals to the municipality, are deprived of a
sizable volume of business from prospective customers who
are intercepted by the talipapa vendors before they can reach
the market proper. On top of all these, the people are denied
the proper use of the place as a public plaza, where they may
spend their leisure in a relaxed and even beautiful
environment and civic and other communal activities of the
town can be held.”
Just the like the said stallholders in the public market,
the herein Private Respondent is also a businesswoman who
pays substantial taxes to the city. To allow the conduct of
trade fairs in a park which is more accessible to the market
goers would deprive her of prospective customers.
PRAYER
WHEREFORE, premises duly considered, it is
respectfully prayed of the Honorable Court that Petition for
Certiorari filed by herein Petitioners be denied.
Such other reliefs, just and equitable under the premises
are likewise prayed for.
Baguio City, Philippines, February 26, 2019.

MARISSA J. MADRID-DACAYANAN
Counsel for the Private Respondent
5
102 Phil. 869-870
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 PTR No. 4006855, / January 14, 2019/ Baguio City
IBP Lifetime Mem. No. 01837, Baguio-Benguet Chapter
S.C. Roll No. 40366
MCLE Compliance No. V-0022465, June 14, 2016
marissadacayanan@yahoo.com
Room 218 2nd Floor Bayanihan Building
Otek cor Shanum Streets, Baguio City
Tel. No. (074) 446-2025/ 09209111969

Copy furnished:

ATTY. MELCHOR RABANES

City Legal Office
Baguio City

THE HON. CLERK OF COURT

Regional Trial Court
Branch 5, Baguio City

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REPUBLIC OF THE PHILIPPINES)
DONE: IN THE CITY OF BAGUIO) S.S.

VERIFICATION AND CERTIFICATION

OF NON-FORUM SHOPPING

I, ELENA T. LAO, of legal age, single, Filipino citizen and with

address located at No. 42 Military Cut-Off Road, Baguio City, after
having been sworn in accordance with law, hereby depose and state
that:

1. I am the Private Respondent in the above-captioned

case;

2. I have caused the preparation and filing of the foregoing

Reply;

3. I have read the contents thereof and declare the same to

be true to the best of my knowledge and are based on authentic
documents.

IN WITNESS WHEREOF, I have hereunto affixed my

signature this 27th day of February, 2019 in Baguio City,
Philippines.

ELENA T. LAO
Petitioner-Affiant
TIN 144-435-141

SUBSCRIBED and SWORN to before me this 27 th day of

February 2019 in Baguio City, Philippines. The Affiant is personally
known to me and to me known to be the same person who executed
this document. She presented competent proof of her identity.

WITNESS MY HAND AND NOTARIAL SEAL.

MARISSA J. MADRID-DACAYANAN
Notary Public for Baguio City until Dec. 31, 2020
S.C. Roll No. 40366; IBP Lifetime Mem. No. 01837
PTR No. 4006855, Jan 14, 2019, Baguio City
Notarial Appointment No. 85-NC-19-R
Bayanihan Bldg., Otek cor. Shanum Street, Baguio City

Doc. No. 323; Page No. 66;Book No. XXXII;Series of 2019.

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