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Republic of the Philippines

REGIONAL TRIAL COURT


Ninth Judicial Region
Branch 21
Pagadian |City
SPOUSES MARLON B. DAGANDAN
AND ANNABELLE V. DAGANDAN
Plaintiffs,
-versus-

CIVIL CASE NO. 5175-sk16

-for-

ROBERT LAO and Z.C. GOLDEN


FOOD ENTERPRISES/DUNKIN
DONUTS, represented by its owner
EDUARDO GUERRA CHUA
Defendants,

JUDICIAL ABATEMENT OF
NUISANCE WITH A PRAYER
FOR THE ISSUANCE OF
TEMPORARY RESTRAINING
ORDER AND/OR WRIT OF
PRELIMINARY INJUNCTION
PLUS DAMAGES

X------------------------------------------------/

REPLY
PLAINTIFFS, thru the undersigned counsel and unto this Honorable Court,
submit the instant Reply and avers that;
1.

On March 18, 2015, Plaintiffs, thru counsel received the defendants Motion

To Admit Answer with Leave of Court and therefore has ten (10) days or on March
28, 2016, within which to file their Reply;
2.

In the second sentence of paragraph 2 of the answer, defendant avers that, to

wit, However, he entered into a lease agreement with ZC Golden Food only June 1,
for the establishment of Commissary and Storage facility, contrary to the
allegation that the lease was made in the first quarter of 2013. By inference,
defendants expressly confirmed and admitted the Barangay San Jose Barangay
Resolution No. 014, Series of 2013, dated March 18, 2013 (Annex A of the
complaint), that what was really established was a WAREHOUSE which run
contrary to their Business Permit dated January 20, 2015, wherein it stated the
nature of business as PRODUCTION (Annex H of the complaint);
3.

In paragraph 3 of the Answer, defendants implicated and blamed the

Barangay Council of Barangay San Jose, Pagadian City, by averring among others
that THE SANGGUNIANG BARANGAY OF SAN JOSE KNEW THAT
WHAT IS TO BE CONSTRUCTED IS A WAREHOUSE FOR THE
PRODUCTION OF DUNKIN. Upon careful examination of the Minutes during
the regular session of Barangay Council of Barangay San Jose, dated March 18, 2013,

in its 1st Agenda WAREHOUSE OPERATION OF ENGR. ROBERT LAO, it


reveals that there was no discussion as to the PRODUCTION OPERATION; what
was discussed during the regular session was the CONSTRUCTION OF
WAREHOUSE, as a consequence, Barangay Kagawad Hon. Revelo moved to pass a
resolution

INTERPOSING

NO

OBJECTION

OF

PUTTING

UP

WAREHOUSE. Defendants tried to impress and mislead the Honorable Court by


interpreting Barangay Resolution No. 015, dated March 18, 2015, that it was issued
for the purpose of interposing no objection as to the OPERATION of defendant
DUNKIN. It is worthy to note that from the four corners of the said barangay
resolution, it leaves no doubts for interpretation because the title itself is clear, that
is, A RESOLUITON INTERPOSING NO OBJECTION OF PUTTING UP A
WAREHOUSE FOR DUNKIN OWNED BY ROBERT LAO LOCATED AT
PUROK SAN FRANCISCO, SAN JOSE DISTRICT, PROVIDED IT WILL
COMPLY

WITH

THE

EXISTING

LAWS,

REGULATIONS

AND

ORDINANCES PERTAINING TO SAID OPERATION.


4.

In paragraph 5 of the Answer, defendants by implication, disposes its waste

directly to the canal fronting the residence of plaintiff, causing to emit a very
offensive foul odor; defendant deliberately and intentionally delay the filing of their
answer to buy time in order to conceal the waste disposed by introducing
improvements therein; that whether the canal is closed or not, still, it does not alter
the fact that it still emits a very offensive foul odor; defendants further avers that
they allegedly installed a grease trapper and the water that comes out from its
sewerage system is ONLY ORIDINARY WATER; granting that only ordinary water
will flow from their sewerage system, still, this is not an ordinary water because the
water is already contaminated with lubricants and other chemical
substances before it was disposed; in fact, the production inside also emits an
offensive smells because of the cooked products of defendant DUNKIN;
5.

In one of the affirmative defenses invoked by the defendants, granting

without admitting that defendant ZC Golden Food Enterprise has no personality


separate and distinct from the owner/proprietor Eduardo Chua. still defendant
DUNKIN is a business organization. It is still an entity but without juridical
personality; under Supreme Court Administrative Circular No. 14-93, in
relation to Sections 599 to 422, Chapter VII, Title I, Book III and Sec. 515, Title I,
Book IV, of R.A. 7160, otherwise known as the Local Government Code of 1991,
which repealed P.D. 1508 (former Katarungang Pambarangay Law), provides an
exceptions which requires no prior barangay conciliation, one of which is, Any
complaint by or against corporations, partnership or juridical entities; it
is wise to note that the law mentioned only JURIDICAL ENTITIES, it does not

distinguished whether it has separate personality or no separate personality from the


owner
6.

Further, there is no merit in defendants contention that the filing of plaintiffs

complaint is premature because there was no prior barangay conciliation before the
Lupong Tagapagmayapa of Barangay San Jose; the affirmative defense of
prematurity invoke by the defendants is misplaced because both defendant Robert
Lao and defendant Eduardo Chua are not actual residents of Barangay San Jose nor
both are residents of Pagadian City. Thus, Section 408 (d) of R.A. 7160, an
exceptions, to wit;
SEC.
408. Subject
Matter for
Amicable
Settlement; Exception Thereto. The lupon of each
barangay shall have authority to bring together the
parties actually residing in the same city or municipality
for amicable settlement of all disputes except:
(f) Disputes involving parties who actually reside
in barangays of
different
cities
or
municipalities, except where such barangay units
adjoin each other and the parties thereto agree to submit
their differences to amicable settlement by an
appropriate lupon; (underling supplied)
7.

From the aforesaid provision in relation to the Answer of the defendants,

nowhere can it be gleaned that defendants were actually residing in Barangay San
Jose, Pagadian City or both defendants are an actual residents of Pagaian City; in
fact, the address mentioned in the Business Permit (Annex H of the complaint) is
only a business address and not an indication or determining factor that the
defendants actually resided in Barangy San Jose or Pagadian City. Thus, in Dante
M. Pascual versus Marilou M. Pascual, G.R. No. 157830, November 17,
2005, citing the case of Tavor vs. Velasco G.R. No. 60367, September 30, 1982, the
Supreme Court resolved and held that, to wit;
Where the parties are not actual residents in
the same city or municipality or adjoining
barangays, there is no requirement for them to
submit their dispute to the lupon as provided for
in Section 6vis a vis Sections 2 and 3 of P.D.
1508 (Katarungang Pambarangay Law).
[B]y express statutory inclusion and exclusion,
the Lupon shall have no jurisdiction over
disputes
where the parties are
not actual residents of
the
same
city
or
municipality, except where the barangays in
which they actually reside adjoin each other.
(citation supplied for emphasis)

8.

Granting further but without admitting and for arguendo sake that both

defendants are actual residents either in Barangay San Jose or in Pagadian City,
prior recourse to barangay conciliation is still not required because the instant case is
one for Judicial Abate of Nuisance with a Prayer for the Issuance of Temporary
Restraining Order and/or Writ of Preliminary Injunction. Thus, Section 412 (b)
(3) of R.A. 7160, allows the party to go directly to the court when the actions are
coupled with provisional remedies, such as in the instant case where the plaintiff
asked for preliminary injunction; Therefore the said provision of law provides that,
to wit;
Sec. 412. . (b) Where parties may go directly to
court. -The parties may go directly to court in
the following instances:
(1) Where the accused is under detention;
(2) Where a person has otherwise been deprived of
personal liberty calling for habeas corpus proceedings;
(3) Where actions are coupled with provisional
remedies such as preliminary injunction,
attachment, delivery of personal property, and
support pendent lite;(underling supplied)
(4) Where the action may otherwise be barred by the
statute of limitations.
9.

Defendants, also in their affirmative defenses, generally raised that plaintiffs

failed to exhaust administrative remedies in relation to R.A. 9003 or the Philippine


Clear Act of 1999; defendants failed to overlook that in the mentioned law, it allows
any citizen to file action directly to the court; Chapter 5, Section 41 of R.A.
9003, provides such right, which reads as follows, to wit;
Section 41, Citizen Suits- For purposes of
enforcing the provisions of this Act or its
implementing rules and regulations, any citizen
may file and appropriate civil, criminal or
administrative action in the proper courts
against;
(a)
Any person who violates or fails to comply
with the provisions of this Act or its
implementing rules and regulations: (italic
supplied)
10.

Further, in the same law (R.A. 9003), section 42 provides that and reads as

follows,

Section

42.

Independence

of

Action-

The

filing

of

an

administrative suit against such person/entity doers not preclude the


right of any other person to file any criminal or civil action. Such civil
action shall proceed independently.. Thus, R.A. 9003 does not exclusively
provides an exhaustion of administrative remedies;

11.

In the affirmative defenses, defendants raised that plaintiffs should have first

filed the complaint before the DENR; defendants in their answers also avers among
others, to wit, Consequently, an ECC is not required under Section 2 of
P.D. 1586, for every proposed project and undertaking which DOES NOT
SIGNIFICANTLY affect the quality of the environment; yet, the defendants
questioned the propriety of the plaintiffs complaint because it failed to exhaust
administrative remedies allegedly in relation to R.A. 9003; defendants were
estopped from questioning the exhaustion of administrative remedies because in the
first

place,

defendants

have

no

ENVIRONMENTAL

COMPLIANCE

CERTIFICATE (ECC); considering the volume of production undertaken by


defendant DUNKIN, the law mandated to secure and obtain the said certificate
(ECC); as a matter of fact, as per information received by the plaintiffs, after the
complaint was filed, defendants then secretly processed and applied for the said
certificate (ECC), anticipating that before the instant case could be actually
tried/heard or before the actual hearing of the Temporary Restraining Order or Writ
of Preliminary Injunction, they can then readily introduced the said certificate
evidencing compliance with the environmental law;
12.

Defendants in their answer misleadingly attached a copy of the Contract of

Lease and marked as Annex 3 purporting to be that said place is only for
COMMISSARY AND STORAGE, but in reality, the said premises was used as a
PRODUCTION of their products; in fact the Business Permit of the defendant
DUNKIN speaks for itself, it described the nature of their business which is
PRODUCTION;
13.

Finally, on the onset, in the Entry of Appearance with Urgent Motion for

Extension of Time to File Answer, defendant DUNKIN counsel avers among others
the The undersigned counsels legal services were engaged by the area manager of
Z.C. Food Enterprises (henceforth ZCFE), MA. CRISTINA TUAYON SAKILI only on
February 26, 2016, several days after the latters receipt of the summons and in the
Answer, defendant Robert Lao, appointed ROY PARAS, as his Attorney-In-Fact, to
represent the instant case; precaution should be made then because the plaintiffs,
aside from seeking judicial abatement of nuisance, it also ask and pray for the
issuance of Temporary Restraining Order and/or Writ of Preliminary Injunction;
such provisional remedy is directly against the owner/proprietor Eduardo Chua and
also against Robert Lao. Thus, the area manager MA. CRISTINA TUAYON SAKILI
of defendant DUNKIN and the Attorney-In-Fact ROY PARAS are not the real
parties-in-interest; as defined under Sec. 2, Rule 3 of the Rules of Court, A real
party in interest-the party who stands to be benefited or injured by the
judgment in the suit or the party entitled to the avails of the suits.; in the

instant case, defendant DUNLIN is only a sole proprietorship, an entity without


juridical personality, the suit for injunction should be made directly to the owner
Eduardo Chua Thus, if plaintiffs obtained any favorable orders, such as the issuance
temporary restraining order and/or writ of preliminary injunction, then it will be
voided through simple expedients that either Ma. Cristina Tuayon Sakili or Roy
Paras, is not a real party-in-interest and the time and effort exerted by the Honorable
Court is useless, meaningless and nugatory;
WHEREFORE, premises considered, the plaintiffs hereby reiterate
the prayers ask and seek for in their complaint.
Other reliefs just and equitable are likewise prayed for.
Respectfully submitted, this 28th day of March 2016 at Pagadian
City, Philippines.

ATTY. FELIX M. ESCALANTE, JR.


Counsel for the Plaintiffs
Provincial Legal Office
Pagadian Capitol Complex
Pagadian City
Attorneys Roll No. 57655
IBP No. 963535, 01/08/16
Issued at Pagadian City
PTR No. 9479424, 01/12/16
Issued at Pagadian City
MCLE Compliance No. IV-0014312
Issued on March 21, 2013
MCLE Compliance V (awaiting certification)
Email ad: pgochief@yahoo.com
0917-623-0775

COPY FURNISHED: Via Personal Service

ATTY. MARK ANTHONY S. PADAYHAG


Counsel for the Defendants
1st Floor, Sunsquare Building
B. Aquino Street, Santa Lucia District
Pagadian City