Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 153974 August 7, 2006
MIGUEL BELUSO, NATIVIDAD BELUSO, PEDRO BELUSO, ANGELITA BELUSO,
RAMON BELUSO, and AMADA DANIEL, substituted by her heirs represented by
TERESITA ARROBANG, Petitioners,
vs.
THE MUNICIPALITY OF PANAY (CAPIZ), represented by its Mayor, VICENTE B.
BERMEJO, Respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before this Court is a petition for review questioning the Decision 1 of the Court of
Appeals (CA) dated March 20, 2002 in CA-G.R. SP No. 47052, as well the
Resolution 2 dated June 11, 2002 denying petitioners Motion for Reconsideration
thereof.
The facts are as follows:
Petitioners are owners of parcels of land with a total area of about 20,424 square
meters, covered by Free Patent Nos. 7265, 7266, 7267, 7268, 7269, and 7270. 3 On
November 8, 1995, the Sangguniang Bayan of the Municipality of Panay issued
Resolution No. 95-29 authorizing the municipal government through the mayor to initiate
expropriation proceedings. 4 A petition for expropriation was thereafter filed on April 14,
1997 by the Municipality of Panay (respondent) before the Regional Trial Court (RTC),
Branch 18 of Roxas City, docketed as Civil Case No. V-6958. 5
Petitioners filed a Motion to Dismiss alleging that the taking is not for public use but only
for the benefit of certain individuals; that it is politically motivated because petitioners
voted against the incumbent mayor and vice-mayor; and that some of the supposed
beneficiaries of the land sought to be expropriated have not actually signed a petition
asking for the property but their signatures were forged or they were misled into signing
the same. 6
On July 31, 1997, the trial court denied petitioners Motion to Dismiss and declared that
the expropriation in this case is for "public use" and the respondent has the lawful right
to take the property upon payment of just compensation. 7
Petitioners filed an Answer on August 12, 1997 reasserting the issues they raised in their
Motion to Dismiss. 8

On October 1, 1997, the trial court issued an Order appointing three persons as
Commissioners to ascertain the amount of just compensation for the
property. 9 Petitioners filed a "Motion to Hold in Abeyance the Hearing of the Court
Appointed Commissioners to Determine Just Compensation and for Clarification of the
Courts Order dated October 1, 1997" which was denied by the trial court on November
3, 1997. 10 Petitioners Motion for Reconsideration was also denied on December 9,
1997. 11
Petitioners then filed on March 2, 1998 a Petition for Certiorari before the CA claiming
that they were denied due process when the trial court declared that the taking was for
public purpose without receiving evidence on petitioners claim that the Mayor of Panay
was motivated by politics in expropriating their property and in denying their Motion to
Hold in Abeyance the Hearing of the Court Appointed Commissioners; and that the trial
court also committed grave abuse of discretion when it disregarded the affidavits of
persons denying that they signed a petition addressed to the municipal government of
Panay. 12 On January 17, 2001, petitioners filed a Motion to Admit Attached
Memorandum and the Memorandum itself where they argued that based on the Petition
for Expropriation filed by respondent, such expropriation was based only on a resolution
and not on an ordinance contrary to Sec. 19 of Republic Act (R.A.) No. 7160; there was
also no valid and definite offer to buy the property as the price offered by respondent to
the petitioners was very low. 13
On March 20, 2002, the CA rendered its Decision dismissing the Petition for Certiorari. It
held that the petitioners were not denied due process as they were able to file an answer
to the complaint and were able to adduce their defenses therein; and that the purpose of
the taking in this case constitutes "public use". 14 Petitioners filed a Motion for
Reconsideration which was denied on June 11, 2002. 15
Thus, the present petition claiming that:
A. RESPONDENT IS WITHOUT, LACKS AND DOES NOT HAVE THE LAWFUL
POWER TO ACQUIRE ANY OR ALL OF THE SUBJECT PROPERTIES THROUGH
EMINENT DOMAIN, IT BEING EXERCISED BY MEANS OF A MERE RESOLUTION,
AND NOT THROUGH AN ORDINANCE AS REQUIRED BY LAW AND APPLICABLE
JURISPRUDENCE;
B. RESPONDENT IS LIKEWISE WITHOUT, LACKS AND DOES NOT HAVE THE
LAWFUL POWER TO ACQUIRE ANY OR ALL OF THE SUBJECT PROPERTIES
THROUGH EMINENT DOMAIN, ITS PREVIOUS OFFER TO BUY THEM BEING NOT
VALID; and
C. IT WAS A SERIOUS ERROR ON THE PART OF THE HONORABLE COURT OF
APPEALS NOT TO DISCUSS, MUCH LESS RULE ON, BOTH IN ITS QUESTIONED
DECISION AND ITS RESOLUTION PROMULGATED ON 11 JUNE 2002
PETITIONERS ARGUMENTS THAT RESPONDENT IS WITHOUT, LACKS AND DOES
NOT HAVE THE LAWFUL POWER TO ACQUIRE ANY OR ALL OF THE SUBJECT
PROPERTIES THROUGH EMINENT DOMAIN, IT BEING EXERCISED BY MEANS OF
A MERE RESOLUTION, AND NOT THROUGH AN ORDINANCE AS REQUIRED BY
LAW AND APPLICABLE JURISPRUDENCE, AND ITS PREVIOUS OFFER TO BUY
THEM BEING NOT VALID, DESPITE THE FACT THAT THESE OBJECTIONS WERE

PROPERLY PLEADED IN PETITIONERS MEMORANDUM WHICH WAS DULY

ADMITTED IN ITS RESOLUTION PROMULGATED ON 29 JANUARY 2001; and
D. PETITIONERS WERE UTTERLY DENIED PROCEDURAL DUE PROCESS OF LAW
BY THE COURT A QUO, WHEN IT SIMPLY DECLARED IN ITS ORDER DATED 31
JULY 1997 THAT THE TAKING BY RESPONDENT OF PETITIONERS PROPERTIES
IS PURPORTEDLY FOR PUBLIC PURPOSE WITHOUT RECEIVING EVIDENCE ON
THEIR ASSERTED CLAIM THAT RESPONDENTS MUNICIPAL MAYOR WAS
POLITICALLY MOTIVATED IN SEEKING THE EXPROPRIATION OF THEIR
PROPERTIES AND NOT FOR PUBLIC PURPOSE. 16
Petitioners argue that: contrary to Sec. 19 of R.A. No. 7160 of the Local Government
Code, which provides that a local government may exercise the power of eminent
domain only by "ordinance," respondents expropriation in this case is based merely on a
"resolution"; while objection on this ground was neither raised by petitioners in their
Motion to Dismiss nor in their Answer, such objection may still be considered by this
Court since the fact upon which it is based is apparent from the petition for expropriation
itself; a defense may be favorably considered even if not raised in an appropriate
pleading so long as the facts upon which it is based are undisputed; courts have also
adopted a more censorious attitude in resolving questions involving the proper exercise
of local bodies of the delegated power of expropriation, as compared to instances when
it is directly exercised by the national legislature; respondent failed to give, prior to the
petition for expropriation, a previous valid and definite offer to petitioners as the amount
offered in this case was only P10.00 per square meter, when the properties are
residential in nature and command a much higher price; the CA failed to discuss and rule
upon the arguments raised by petitioners in their Memorandum; attached to the Motion
to Dismiss were affidavits and death certificates showing that there were people whose
names were in the supposed petition asking respondent for land, but who did not
actually sign the same, thus showing that the present expropriation was not for a public
purpose but was merely politically motivated; considering the conflicting claims regarding
the purpose for which the properties are being expropriated and inasmuch as said issue
may not be rightfully ruled upon merely on the basis of petitioners Motion to Dismiss and
Answer as well as respondents Petition for Expropriation, what should have been done
was for the RTC to conduct hearing where each party is given ample opportunity to
prove its claim. 17
Respondent for its part contends that its power to acquire private property for public use
upon payment of just compensation was correctly upheld by the trial court; that the CA
was correct in finding that the petitioners were not denied due process, even though no
hearing was conducted in the trial court, as petitioners were still able to adduce their
objections and defenses therein; and that petitioners arguments have been passed
upon by both the trial court and the CA and were all denied for lack of substantial
merit. 18
Respondent filed a Memorandum quoting at length the decision of the CA to support its
position. 19 Petitioners meanwhile opted to have the case resolved based on the
pleadings already filed. 20
We find the petition to be impressed with merit.

Eminent domain, which is the power of a sovereign state to appropriate private property
to particular uses to promote public welfare, is essentially lodged in the
legislature. 21 While such power may be validly delegated to local government units
(LGUs), other public entities and public utilities the exercise of such power by the
delegated entities is not absolute. 22 In fact, the scope of delegated legislative power is
narrower than that of the delegating authority and such entities may exercise the power
to expropriate private property only when authorized by Congress and subject to its
control and restraints imposed through the law conferring the power or in other
legislations. 23 Indeed, LGUs by themselves have no inherent power of eminent
domain. 24 Thus, strictly speaking, the power of eminent domain delegated to an LGU is
in reality not eminent but "inferior" since it must conform to the limits imposed by the
delegation and thus partakes only of a share in eminent domain. 25 The national
legislature is still the principal of the LGUs and the latter cannot go against the principals
will or modify the same. 26
The exercise of the power of eminent domain necessarily involves a derogation of a
fundamental right. 27 It greatly affects a landowners right to private property which is a
constitutionally protected right necessary for the preservation and enhancement of
personal dignity and is intimately connected with the rights to life and liberty. 28Thus,
whether such power is exercised directly by the State or by its authorized agents, the
exercise of such power must undergo painstaking scrutiny. 29
Indeed, despite the existence of legislative grant in favor of local governments, it is still
the duty of the courts to determine whether the power of eminent domain is being
exercised in accordance with the delegating law.
Sec. 19 of R.A. No. 7160, which delegates to LGUs the power of eminent domain
expressly provides:
SEC. 19. Eminent Domain. - A local government unit may, through its chief executive
and acting pursuant to an ordinance, exercise the power of eminent domain for public
use, or purpose, or welfare for the benefit of the poor and the landless, upon payment of
just compensation, pursuant to the provisions of the Constitution and pertinent laws:
Provided, however, That the power of eminent domain may not be exercised unless a
valid and definite offer has been previously made to the owner, and such offer was not
accepted: Provided, further, That the local government unit may immediately take
possession of the property upon the filing of the expropriation proceedings and upon
making a deposit with the proper court of at least fifteen percent (15%) of the fair market
value of the property based on the current tax declaration of the property to be
expropriated: Provided, finally, That, the amount to be paid for the expropriated property
shall be determined by the proper court, based on the fair market value at the time of the
taking of the property.
It is clear therefore that several requisites must concur before an LGU can exercise the
power of eminent domain, to wit:
1. An ordinance is enacted by the local legislative council authorizing the local chief
executive, in behalf of the local government unit, to exercise the power of eminent
domain or pursue expropriation proceedings over a particular private property.

2. The power of eminent domain is exercised for public use, purpose or welfare, or for
the benefit of the poor and the landless.
3. There is payment of just compensation, as required under Section 9, Article III of the
Constitution, and other pertinent laws.
4. A valid and definite offer has been previously made to the owner of the property
sought to be expropriated, but said offer was not accepted. 30
The Court in no uncertain terms have pronounced that a local government unit cannot
authorize an expropriation of private property through a mere resolution of its lawmaking
body. 31 R.A. No. 7160 otherwise known as the Local Government Code expressly
requires an ordinance for the purpose and a resolution that merely expresses the
sentiment of the municipal council will not suffice. 32
A resolution will not suffice for an LGU to be able to expropriate private property; and the
reason for this is settled:
x x x A municipal ordinance is different from a resolution. An ordinance is a law, but a
resolution is merely a declaration of the sentiment or opinion of a lawmaking body on a
specific matter. An ordinance possesses a general and permanent character, but a
resolution is temporary in nature. Additionally, the two are enacted differently -- a third
reading is necessary for an ordinance, but not for a resolution, unless decided otherwise
by a majority of all theSanggunian members.
If Congress intended to allow LGUs to exercise eminent domain through a mere
resolution, it would have simply adopted the language of the previous Local Government
Code. But Congress did not. In a clear divergence from the previous Local Government
Code, Sec. 19 of R.A. [No.] 7160 categorically requires that the local chief executive act
pursuant to an ordinance. x x x 33
As respondents expropriation in this case was based merely on a resolution, such
expropriation is clearly defective. While the Court is aware of the constitutional policy
promoting local autonomy, the court cannot grant judicial sanction to an LGUs exercise
of its delegated power of eminent domain in contravention of the very law giving it such
power. 34
The Court notes that petitioners failed to raise this point at the earliest opportunity. Still,
we are not precluded from considering the same. This Court will not hesitate to consider
matters even those raised for the first time on appeal in clearly meritorious
situations, 35 such as in this case.
Thus, the Court finds it unnecessary to resolve the other issues raised by petitioners.
It is well to mention however that despite our ruling in this case respondent is not barred
from instituting similar proceedings in the future, provided that it complies with all legal
requirements. 36

WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals in CAG.R. SP No. 47052 isREVERSED and SET ASIDE. The Complaint in Civil Action No. V6958 is DISMISSED without prejudice.
No costs.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 69260 December 22, 1989
MUNICIPALITY OF BIAN, petitioner,
vs.
HON. JOSE MAR GARCIA, Judge of the Regional Trial Court at Bian, Laguna
(BRANCH XXXIV, Region IV), and ERLINDA FRANCISCO, respondents.
The Provincial Fiscal for petitioner.
Roman M. Alonte for private respondent.

NARVASA, J.:
Three (3) questions are resolved in the action of certiorari at bar. The first is whether the
special civil action of eminent domain under Rule 67 of the Rules of Court is a case
"wherein multiple appeals are allowed, 1 as regards which 'the period of appeal shall be
thirty [30] days, 2 instead of fifteen (15) days. 3 The second is whether or not the Trial
Court may treat the motion to dismiss" filed by one of the defendants in the action of
eminent domain as a "motion to dismiss" under Rule 16 of the Rules of Court, reverse
the sequence of trial in order and hear and determine said motion to dismiss, and
thereafter dismiss the expropriation suit as against the movant. And the third is whether
or not a "locational clearance issued by the Human Settlements Regulatory Commission
relative to use of land is a bar to an expropriation suit involving that land.
The expropriation suit involved in this certiorari proceeding was commenced by
complaint of the Municipality of Bian, Laguna 4 filed in the Regional Trial Court of
Laguna and City of San Pablo, presided over by respondent Judge Jose Mar Garcia.
The complaint named as defendants the owners of eleven (11) adjacent parcels of land
in Bian with an aggregate area of about eleven and a half (11-1/2) hectares. The land

sought to be expropriated was intended for use as the new site of a modern public
market and the acquisition was authorized by a resolution of the Sangguniang Bayan of
Bian approved on April 11, 1983.
One of the defendants was Erlinda Francisco. She filed a "Motion to Dismiss" dated
August 26, 1983, on the following grounds; (a) the allegations of the complaint are vague
and conjectural; (b) the complaint violates the constitutional limitations of law and
jurisprudence on eminent domain; (c) it is oppressive; (d) it is barred by prior decision
and disposition on the subject matter; and (e) it states no cause of action. 5 Now, her
motion to dismiss" was filed pursuant to Section 3, Rule 67 of the Rules of Court:
Sec. 3. Defenses and objections within the time specified in the
summons, each defendant, in lieu of an answer, shall present in a single
motion to dismiss or for other apppropriate relief, all of his objections and
defenses to the right of the plaintiff to take his property for the use or
purpose specified in the complaint. All such objections and defenses not
so presented are waived. A copy of the motion shall be served on the
plaintiffs attorney of record and filed with the court with the proof of
service.
Her "motion to dismiss" was thus actually a pleading, taking the place of an answer in an
ordinary civil action; 6 it was not an ordinary motion governed by Rule 15, or a "motion to
dismiss" within the contemplation of Rule 16 of the Rules of Court.
On October 23, 1983, respondent Judge issued a writ of possession in favor of the
plaintiff Municipality.
On February 3, 1984, Erlinda Francisco filed a "Motion for Separate Trial," invoking
Section 2, Rule 31. 7 She alleged that there had already been no little delay in bringing
all the defendants within the court's jurisdiction, and some of the defendants seemed
"nonchalant or without special interest in the case" if not mere "free riders;" and "while
the cause of action and defenses are basically the same;" she had, among other
defenses, "a constitutional defense of vested right via a pre-existing approved Locational
Clearance from the H.S.R.C." 8 Until this clearance was revoked, Francisco contended,
or the Municipality had submitted and obtained approval of a "rezoning of the lots in
question," it was premature for it to "file a case for expropriation. 9 The Court granted the
motion. By Order dated March 2, 1984, it directed that a separate trial be held for
defendant Erlinda Francisco regarding her special defenses mentioned in her .. Motion
for Separate Trial and in her Motion to Dismiss, distinct from and separate from the
defenses commonly raised by all the defendants in their respective motions to dismiss."
At the separate trial, the Fiscal, in representation of the Municipality called the Trial
Court's attention to the irregularity of allowing Francisco to present her evidence ahead
of the plaintiff, "putting the cart before the horse, as it were." He argued that the motion
to dismiss was in truth an answer, citing Rural Progress Administration v. Judge de
Guzman, and its filing did "not mean that the order of presentation of evidence will be
reversed," but the usual procedure should be followed; and the evidence adduced
should be deemed "evidence only for the motion for reconsideration of the writ of
possession." 10

Nevertheless, at the hearing of March 5, and March 26, 1984, the Court directed
Francisco to commence the presentation of evidence. Francisco presented the
testimony of Atty. Josue L. Jorvina, Jr. and certain exhibits the Land Use Map of the
Municipality of Bian, the Locational Clearance and Development Permit issued by the
H.S.R.C. in favor of "Erlinda Francisco c/o Ferlins Realty & Development Corporation,
and Executive Order No. 648 and Letter of Instruction No. 729, etc. Thereafter, the
respondent Judge issued an Order dated July 24, 1984 dismissing the complaint "as
against defendant ERLINDA FRANCISCO," and amending the Writ of Possession dated
October 18, 1983 so as to "exclude therefrom and from its force and effects said
defendant .. and her property ..." His Honor found that1) a Locational Clearance had been issued on May 4,1983
by the Human Settlements Regulatory Commission to the
"Ferlin's Realty .. owned by defendant Erlinda Francisco to
convert .. (her) lot to a commercial complex;"
2) according to the testimony of Atty. Jorvina of the
H.S.R.C., a grantee of a locational clearance acquires a
vested right over the subject property in the sense that ..
said property may not be subject of an application for
locational clearance by another applicant while said
locational clearance is subsisting;"
3) such a clearance should be "considered as a decision
and disposition of private property co-equal with or in parity
with a disposition of private property through eminent
domain;
4) the clearance was therefore "a legal bar against the
right of plaintiff Municipality .. to expropriate the said
property."
The Municipality filed on August 17, 1984 a Motion for Reconsideration. Therein it (a)
reiterated its contention respecting the irregularity of the reversal of the order of trial,
supra. 11 (b) decried the act of the Court in considering the case submitted for decision
after the presentation of evidence by Francisco without setting the case for further
hearing for the reception of the plaintiffs own proofs, (c) pointed out that as admitted by
Atty. Jorvina, the locational clearance did not "mean that other persons are already
prevented from filing locational clearance for the same project, and so could not be
considered a bar to expropriation, (d) argued that the locational clearance issued on May
4, 1983, became a "worthless sheet of paper" one year later, on May 4, 1984 in
accordance with the explicit condition in the clearance that it "shall be considered
automatically revoked if not used within a period of one (1) year from date of issue," the
required municipal permits to put up the commercial complex never having been
obtained by Francisco; and (e) alleged that all legal requirements for the expropriation of
the property had been duly complied with by the Municipality. 12
The Municipality set its motion for reconsideration for hearing on August 28, 1984 after
furnishing Francisco's counsel with copy thereof The Court however re-scheduled the

hearing more than two (2) months later, on November 20, 1984. 13 Why the hearing was
reset to such a remote date is not explained.
On September 13, 1984, Francisco filed an "Ex-Parte Motion for Execution and/or
Finality of Order," contending that the Order of July 27, 1984 had become "final and
executory on August 12, 1984" for failure of the Municipality to file a motion for
reconsideration and/or appeal within the reglementary period," 14 i.e "fifteen (15) days
counted from the notice of the final order .. appealed from. 15
On October 10, 1984, the Court issued an Order declaring the Municipality's motion for
reconsideration dated August 15, 1984 to have been "filed out of time," on account of
which the Court 49 could not give due course to and/or act x x (thereon) except to
dismiss (as it did thereby dismiss) the same." 16 It drew attention to the fact that notice of
its Order of July 24, 1984 (dismissing the complaint as against Francisco) was served on
plaintiff Municipality on July 27, 1984, but its motion for reconsideration was not
presented until August 17, 1984, beyond the fifteen-day period for appeal prescribed by
law. And on October 15, 1985, His Honor promulgated another Order directing the
issuance of (1) a writ of execution of the Order of July 24, 1984, and (2) a "certificate of
finality" of said order. 17
The Municipality attempted to have the respondent Court reconsider both and Orders of
October 10, and October 15, 1984. To this end it submitted a motion contending that: 18
1) "multiple appeals are allowed by law" in actions of
eminent domain, and hence the period of appeal is thirty
(30), not fifteen (15) days;
2) moreover, the grant of a separate trial at Francisco's
instance had given rise "ipso facto to a situation where
multiple appeals became available (Sections 4 and 5, Rule
36, .. Santos v. Pecson, 79 Phil. 261);"
3) it was wrong for the Trial Court to have acted exparte on
the motion for execution, the motion being "litigable in
character;" and
4) it (the Municipality) was denied due process when the
Court, after receiving Francisco's evidence and admitting
her exhibits, immediately resolved the case on the merits
as regards Francisco, without setting the case "for further
hearing for reception of evidence for the plaintiff."
The motion was denied, by Order dated October 18, 1984; hence, the special civil action
of certiorari at bar.
1. There are two (2) stages in every action of expropriation. The first is
concerned with the determination of the authority of the plaintiff to
exercise the power of eminent domain and the propriety of its exercise in
the context of the facts involved in the suit. 19 It ends with an order, if not
of dismissal of the action, "of condemnation declaring that the plaintiff has

a lawful right to take the property sought to be condemned, for the public
use or purpose described in the complaint, upon the payment of just
compensation to be determined as of the date of the filing of the
complaint." 20 An order of dismissal, if this be ordained, would be a final
one, of course, since it finally disposes of the action and leaves nothing
more to be done by the Court on the Merits. 21 So, too, would an order of
condemnation be a final one, for thereafter, as the Rules expressly state,
in the proceedings before the Trial Court, "no objection to the exercise of
the right of condemnation (or the propriety thereof) shall be flied or
heard. 22
The second phase of the eminent domain action is concerned with the determination by
the Court of "the just compensation for the property sought to be taken." This is done by
the Court with the assistance of not more than three (3) commissioners. 23 The order
fixing the just compensation on the basis of the evidence before, and findings of, the
commissioners would be final, too. It would finally dispose of the second stage of the
suit, and leave nothing more to be done by the Court regarding the issue. Obviously, one
or another of the parties may believe the order to be erroneous in its appreciation of the
evidence or findings of fact or otherwise. Obviously, too, such a dissatisfied party may
seek reversal of the order by taking an appeal therefrom.
A similar two-phase feature is found in the special civil action of partition and accounting
under Rule 69 of the Rules of Court. 24
The first phase of a partition and/or accounting suit is taken up with the determination of
whether or not a co-ownership in fact exists, and a partition is proper (i.e., not otherwise
legally prescribed) and may be made by voluntary agreement of all the parties interested
in the property. 25 This phase may end with a declaration that plaintiff is not entitled to
have a partition either because a co-ownership does not exist, or partition is legally
prohibited. 26 It may end, on the other hand, with an adjudgment that a co-ownership
does in truth exist, partition is proper in the premises and an accounting of rents and
profits received by the defendant from the real estate in question is in order. 27 In the
latter case, "the parties may, ff they are able to agree, make partition among themselves
by proper instruments of conveyance, and the court shall confirm the partition so agreed
upon. 28, In either case i.e. either the action is dismissed or partition and/or accounting is
decreed the order is a final one, and may be appealed by any party aggrieved thereby. 29
The second phase commences when it appears that "the parties are unable to agree
upon the partition" directed by the court. In that event partition shall be done for the
parties by the Court with the assistance of not more than three (3)
commissioners. 30 This second stage may well also deal with the rendition of the
accounting itself and its approval by the Court after the parties have been accorded
opportunity to be heard thereon, and an award for the recovery by the party or parties
thereto entitled of their just share in the rents and profits of the real estate in
question." 31 Such an order is, to be sure, final and appealable.
Now, this Court has settled the question of the finality and appealability of a decision or
order decreeing partition or recovery of property and/or accounting. In Miranda v. Court
of Appeals, decided on June 18, 1986,32 the Court resolved the question affirmatively,
and expressly revoked the ruling in Zaldarriaga v. Enriquez 33 -that a decision or order of

partition is not final because it leaves something more to be done in the trial court for the
complete disposition of the case, i.e, the appointment of commissioners, the
proceedings for the determination by said commissioners of just compensation, the
submission of their reports, and hearing thereon, and the approval of the partition-and in
Fuentebella vs. Carrascoso 34 -that a judgement for recovery of property with account is
not final, but merely interlocutory and hence not appealable until the accounting is made
and passed upon. As pointed out in Miranda, imperative considerations of public policy,
of sound practice and adherence to the constitutional mandate of simplified, just, speedy
and inexpensive determination of every action require that judgments for recovery (or
partition) of property with accounting be considered as final judgments, duly appealable.
This, notwithstanding that further proceedings will still have to be rendered by the party
required to do so, it will be ventilated and discussed by the parties, and will eventually be
passed upon by the Court. It is of course entirely possible that the Court disposition may
not sit well with either the party in whose favor the accounting is made, or the party
rendering it. In either case, the Court's adjudication on the accounting is without doubt a
final one, for it would finally terminate the proceedings thereon and leave nothing more
to be done by the Court on the merits of the issue. And it goes without saying that any
party feeling aggrieved by that ultimate action of the Court on the accounting may seek
reversal or modification thereof by the Court of Appeals or the Supreme Court. 35
The Miranda doctrine was reiterated in de Guzman v. C.A.- 36 Valdez v.
Bagaso; 37 Lagunzad v. Gonzales; 38 Cease v. C.A., 39 Macadangdang v.
C.A. 40 and Hernandez v. C.A., 41 Gabor v. C.A. 42 Fabrica v. C.A . 43
No reason presents itself for different disposition as regards cases of eminent domain.
On the contrary, the close analogy between the special actions of eminent domain and
partition already pointed out, argues for the application of the same rule to both
proceedings.
The Court therefore holds that in actions of eminent domain, as in actions for partition,
since no less than two (2) appeals are allowed by law, the period for appeal from an
order of condemnation 44 is thirty (30) days counted from notice of order and not the
ordinary period of fifteen (15) days prescribed for actions in general, conformably with
the provision of Section 39 of Batas Pambansa Bilang 129, in relation to paragraph 19
(b) of the Implementing Rules to the effect that in "appeals in special proceedings in
accordance with Rule 109 of the Rules of Court and other cases wherein multiple
appeals are allowed, the period of appeal shall be thirty (30) days, a record of appeal
being required. 45
The municipality's motion for reconsideration filed on August 17, 1984 was therefore
timely presented, well within the thirty-day period laid down by law therefor; and it was
error for the Trial Court to have ruled otherwise and to have declared that the order
sought to be considered had become final and executory.
2. As already observed, the Municipality's complaint for expropriation
impleaded eleven (11) defendants. A separate trial was held on motion of
one of them, Erlinda Francisco, 46 it appearing that she had asserted a
defense personal and peculiar to her, and inapplicable to the other
defendants, supra. Subsequently, and on the basis of the evidence
presented by her, the Trial Court promulgated a separate Order

dismissing the action as to her, in accordance with Section 4, Rule 36 of

the Rules of Court reading as follows:
Sec. 4. Several judgments in an action against several defendants, the
court may, when a several judgment is proper, render judgment against
one or more of them, leaving the action to proceed against the others.
It is now claimed by the Municipality that the issuance of such a separate, final order or
judgment had given rise "ipso facto to a situation where multiple appeals became
available." The Municipality is right.
In the case at bar, where a single complaint was filed against several defendants having
individual, separate interests, and a separate trial was held relative to one of said
defendants after which a final order or judgment was rendered on the merits of the
plaintiff s claim against that particular defendant, it is obvious that in the event of an
appeal from that separate judgment, the original record cannot and should not be sent
up to the appellate tribunal. The record will have to stay with the trial court because it will
still try the case as regards the other defendants. As the rule above quoted settles, "In an
action against several defendants, the court may, when a several judgment is proper,
render judgment against one or more of them, leaving the action to proceed against the
others. " 47 In lieu of the original record, a record on appeal will perforce have to be
prepared and transmitted to the appellate court. More than one appeal being permitted
in this case, therefore, "the period of appeal shall be thirty (30) days, a record of appeal
being required as provided by the Implementing Rules in relation to Section 39 of B.P.
Blg. 129, supra. 48
3. Erlinda Francisco filed a "motion to dismiss" intraverse of the
averments of the Municipality's complaint for expropriation. That "motion
to dismiss" was in fact the indicated responsive pleading to the complaint,
"in lieu of an answer." 49
Now, the Trial Court conducted a separate trial to determine whether or not, as alleged
by Francisco in her "motion to dismiss," she had a "vested right via a pre-existing
approved Locational Clearance from the HRSC.," making the expropriation suit
premature. 50 While such a separate trial was not improper in the premises, 51 and was
not put at issue by the Municipality, the latter did protest against the Trial Court's (a)
reversing the order of trial and receiving first, the evidence of defendant Francisco, and
(b) subsequently rendering its order sustaining Francisco's defense and dismissing the
action as to her, solely on the basis of said Francisco's evidence and without giving the
plaintiff an opportunity to present its own evidence on the issue. The Trial Court was
clearly wrong on both counts. The Court will have to sustain the Municipality on these
points.
Nothing in the record reveals any valid cause to reverse the order of trial. What the Trial
Court might have had in mind was the provision of Section 5, Rule 16 of the Rules of
Court allowing "any of the grounds for dismissal" in Rule 16 to "be pleaded as an
affirmative defense and authorizing the holding of a "preliminary hearing .. thereon as if a
motion to dismiss had been filed." Assuming this to be the fact, the reception of
Francisco's evidence first was wrong, because obviously, her asserted objection or
defense that the locational clearance issued in her favor by the HSRC was a legal bar to

the expropriation suit was not a ground for dismissal under Rule 16. She evidently meant
to prove the Municipality's lack of cause of action; but lack of cause of action is not a
ground for dismissal of an action under Rule 16; the ground is the failure of the
complaint to state a cause of action, which is obviously not the same as plaintiff's not
having a cause of action.
Nothing in the record, moreover, discloses any circumstances from which a waiver by
the Municipality of the right to present contrary proofs may be inferred. So, in deciding
the issue without according the Municipality that right to present contrary evidence, the
Trial Court had effectively denied the Municipality due process and thus incurred in
another reversible error.
4. Turning now to the locational clearance issued by the HSRC in
Francisco's favor on May 4, 1983, it seems evident that said clearance
did become a "worthless sheet of paper," as averred by the Municipality,
upon the lapse of one (1) year from said date in light of the explicit
condition in the clearance that it 44 shall be considered automatically
revoked if not used within a period of one (1) year from date of issue,"
and the unrebutted fact that Francisco had not really made use of it within
that period. The failure of the Court to consider these facts, despite its
attention having been drawn to them, is yet another error which must be
corrected.
WHEREFORE, the challenged Order issued by His Honor on July 24,1984 in Civil Case
No. 8-1960 is ANNULLED AND SET ASIDE, and the case is remanded to the Trial Court
for the reception of the evidence of the plaintiff Municipality of Bian as against
defendant Erlinda Francisco, and for subsequent proceedings and judgment in
accordance with the Rules of Court and the law. Costs against private respondent.
SO ORDERED.
Cruz, Gancayco, Grio-Aquino and Medialdea, JJ., concur.

SECOND DIVISION

[G.R. No. 152230. August 9, 2005]

JESUS IS LORD CHRISTIAN SCHOOL FOUNDATION, INC., petitioner, vs.

MUNICIPALITY (now CITY) OF PASIG, METRO MANILA, respondent.
DECISION
CALLEJO, SR., J.:

Before us is a petition for review of the Decision[1] of the Court of Appeals (CA) in
CA-G.R. CV No. 59050, and its Resolution dated February 18, 2002, denying the motion
for reconsideration thereof. The assailed decision affirmed the order of the Regional Trial
Court (RTC) of Pasig, Branch 160, declaring the respondent Municipality (now City) of
Pasig as having the right to expropriate and take possession of the subject property.

The Antecedents
The Municipality of Pasig needed an access road from E. R. Santos Street, a
municipal road near the Pasig Public Market, to Barangay Sto. Tomas Bukid, Pasig,
where 60 to 70 houses, mostly made of light materials, were located. The road had to be
at least three meters in width, as required by the Fire Code, so that fire trucks could pass
through in case of conflagration.[2] Likewise, the residents in the area needed the road
for water and electrical outlets.[3] The municipality then decided to acquire 51 square
meters out of the 1,791-square meter property of Lorenzo Ching Cuanco, Victor Ching
Cuanco and Ernesto Ching Cuanco Kho covered by Transfer Certificate of Title (TCT)
No. PT-66585,[4] which is abutting E. R. Santos Street.
On April 19, 1993, the Sangguniang Bayan of Pasig approved an
Ordinance[5] authorizing the municipal mayor to initiate expropriation proceedings to
acquire the said property and appropriate the fund therefor. The ordinance stated that
the property owners were notified of the municipalitys intent to purchase the property for
public use as an access road but they rejected the offer.
On July 21, 1993, the municipality filed a complaint, amended on August 6, 1993,
against the Ching Cuancos for the expropriation of the property under Section 19 of
Republic Act (R.A.) No. 7160, otherwise known as the Local Government Code. The
plaintiff alleged therein that it notified the defendants, by letter, of its intention to
construct an access road on a portion of the property but they refused to sell the same
portion. The plaintiff appended to the complaint a photocopy of the letter addressed to
defendant Lorenzo Ching Cuanco.[6]
The plaintiff deposited with the RTC 15% of the market value of the property based
on the latest tax declaration covering the property. On plaintiffs motion, the RTC issued a
writ of possession over the property sought to be expropriated. On November 26, 1993,
the plaintiff caused the annotation of a notice of lis pendens at the dorsal portion of TCT
No. PT-92579 under the name of the Jesus Is Lord Christian School Foundation,
Incorporated (JILCSFI) which had purchased the property.[7] Thereafter, the plaintiff
constructed therein a cemented road with a width of three meters; the road was called
Damayan Street.
In their answer,[8] the defendants claimed that, as early as February 1993, they had
sold the said property to JILCSFI as evidenced by a deed of sale [9] bearing the signature
of defendant Ernesto Ching Cuanco Kho and his wife.
When apprised about the complaint, JILCSFI filed a motion for leave to intervene as
defendant-in-intervention, which motion the RTC granted on August 26, 1994.[10]
In its answer-in-intervention, JILCSFI averred, by way of special and affirmative
defenses, that the plaintiffs exercise of eminent domain was only for a particular class
and not for the benefit of the poor and the landless. It alleged that the property sought to

be expropriated is not the best portion for the road and the least burdensome to it. The
intervenor filed a crossclaim against its co-defendants for reimbursement in case the
subject property is expropriated.[11] In its amended answer, JILCSFI also averred that it
has been denied the use and enjoyment of its property because the road was
constructed in the middle portion and that the plaintiff was not the real party-in-interest.
The intervenor, likewise, interposed counterclaims against the plaintiff for moral
damages and attorneys fees.[12]
During trial, Rolando Togonon, the plaintiffs messenger, testified on direct
examination that on February 23, 1993, he served a letter of Engr. Jose Reyes, the
Technical Assistant to the Mayor on Infrastructure, to Lorenzo Ching Cuanco at his store
at No. 18 Alkalde Jose Street, Kapasigan, Pasig. A lady received the same and brought
it inside the store. When she returned the letter to him, it already bore the signature of
Luz Bernarte. He identified a photocopy of the letter as similar to the one he served at
the store. On cross-examination, he admitted that he never met Luz Bernarte. [13]
Edgardo del Rosario, a resident of Sto. Tomas Bukid since 1982 declared that he
would pass through a wooden bridge to go to E. R. Santos Street. At times, the bridge
would be slippery and many had met accidents while walking along the bridge. Because
of this, they requested Mayor Vicente Eusebio to construct a road therein. He attested
that after the construction of the cemented access road, the residents had water and
electricity.[14]
Augusto Paz of the City Engineers Office testified that, sometime in 1992, the
plaintiff constructed a road perpendicular from E. R. Santos Street to Sto. Tomas Bukid;
he was the Project Engineer for the said undertaking. Before the construction of the
road, the lot was raw and they had to put filling materials so that vehicles could use it.
According to him, the length of the road which they constructed was 70 meters long and
3 meters wide so that a fire truck could pass through. He averred that there is no other
road through which a fire truck could pass to go to Sto. Tomas Bukid.[15]
Manuel Tembrevilla, the Fire Marshall, averred that he had seen the new road, that
is, Damayan Street, and found that a fire truck could pass through it. He estimated the
houses in the area to be around 300 to 400. Tembrevilla also stated that Damayan
Street is the only road in the area.[16]
Finally, Bonifacio Maceda, Jr., Tax Mapper IV, testified that, according to their
records, JILCSFI became the owner of the property only on January 13, 1994.[17]
The plaintiff offered in evidence a photocopy of the letter of Engr. Jose Reyes
addressed to Lorenzo Ching Cuanco to prove that the plaintiff made a definite and valid
offer to acquire the property to the co-owners. However, the RTC rejected the same
letter for being a mere photocopy.[18]
For the defendant-intervenor, Normita del Rosario, owner of the property located
across the subject property, testified that there are other roads leading to E. R. Santos
Street. She asserted that only about ten houses of the urban poor are using the new
road because the other residents are using an alternative right-of-way. She averred that
she did not actually occupy her property; but there were times that she visited it.[19]
Danilo Caballero averred that he had been a resident of Sto. Tomas Bukid for seven
years. From his house, he could use three streets to go to E. R. Santos Street, namely,
Catalina Street, Damayan Street and Bagong Taon Street. On cross-examination, he

admitted that no vehicle could enter Sto. Tomas Bukid except through the newly
constructed Damayan Street.[20]
Eduardo Villanueva, Chairman of the Board of Trustees and President of JILCSFI,
testified that the parcel of land was purchased for purposes of constructing a school
building and a church as worship center. He averred that the realization of these projects
was delayed due to the passing of the ordinance for expropriation.[21]
The intervenor adduced documentary evidence that on February 27, 1993, Lorenzo
Ching Cuanco and the co-owners agreed to sell their property covered by TCT No. PT66585 forP1,719,000.00.[22] It paid a down payment of P1,000,000.00 for the property.
After payment of the total purchase price, the Ching Cuancos executed a Deed of
Absolute Sale[23] over the property on December 13, 1993. On December 21, 1993, TCT
No. PT-92579 was issued in the name of JILCSFI. [24] It declared the property for taxation
purposes under its name.[25]
On September 3, 1997, the RTC issued an Order in favor of the plaintiff, the
dispositive portion of which reads:
WHEREFORE, in view of the foregoing and in accordance with Section 4, Rule 67 of the
Revised Rules of Court, the Court Resolves to DECLARE the plaintiff as having a lawful
right to take the property in question for purposes for which the same is expropriated.
The plaintiff and intervenor are hereby directed to submit at least two (2) names of their
recommended commissioners for the determination of just compensation within ten (10)
days from receipt hereof.
SO ORDERED.[26]
The RTC held that, as gleaned from the declaration in Ordinance No. 21, there was
substantial compliance with the definite and valid offer requirement of Section 19 of R.A.
No. 7160, and that the expropriated portion is the most convenient access to the interior
of Sto. Tomas Bukid.
Dissatisfied, JILCSFI elevated the case to the CA on the following assignment of
errors:
First Assignment of Error
THE LOWER COURT SERIOUS[LY] ERRED WHEN IT RULED THAT PLAINTIFFAPPELLEE SUBSTANTIALLY COMPLIED WITH THE LAW WHEN IT EXPROPRIATED
JILS PROPERTY TO BE USED AS A RIGHT OF WAY.
Second Assignment of Error
THE LOWER COURT ERRED IN DISREGARDING JILS EVIDENCE PROVING THAT
THERE WAS NO PUBLIC NECESSITY TO WARRANT THE EXPROPRIATION OF THE
SUBJECT PROPERTY.[27]

The Court of Appeals Decision

In a Decision dated March 13, 2001, the CA affirmed the order of the RTC. [28] The
CA agreed with the trial court that the plaintiff substantially complied with Section 19 of
R.A. No. 7160, particularly the requirement that a valid and definite offer must be made
to the owner. The CA declared that the letter of Engr. Reyes, inviting Lorenzo Ching
Cuanco to a conference to discuss with him the road project and the price of the lot, was
a substantial compliance with the valid and definite offer requirement under said Section
19. In addition, the CA noted that there was also constructive notice to the defendants of
the expropriation proceedings since a notice of lis pendens was annotated at the dorsal
portion of TCT No. PT-92579 on November 26, 1993.[29]
Finally, the CA upheld the public necessity for the subject property based on the
findings of the trial court that the portion of the property sought to be expropriated
appears to be, not only the most convenient access to the interior of Sto. Tomas Bukid,
but also an easy path for vehicles entering the area, particularly fire trucks. Moreover,
the CA took into consideration the provision of Article 33 of the Rules and Regulations
Implementing the Local Government Code, which regards the construction or extension
of roads, streets, sidewalks as public use, purpose or welfare.[30]
On April 6, 2001, JILCSFI filed a motion for reconsideration of the said decision
alleging that the CA erred in relying on the photocopy of Engr. Reyes letter to Lorenzo
Ching Cuanco because the same was not admitted in evidence by the trial court for
being a mere photocopy. It also contended that the CA erred in concluding that
constructive notice of the expropriation proceeding, in the form of annotation of the
notice of lis pendens, could be considered as a substantial compliance with the
requirement under Section 19 of the Local Government Code for a valid and definite
offer. JILCSFI also averred that no inspection was ever ordered by the trial court to be
conducted on the property, and, if there was one, it had the right to be present thereat
since an inspection is considered to be part of the trial of the case.[31]
The CA denied the motion for reconsideration for lack of merit. It held that it was not
precluded from considering the photocopy[32] of the letter, notwithstanding that the same
was excluded by the trial court, since the fact of its existence was duly established by
corroborative evidence. This corroborative evidence consisted of the testimony of the
plaintiffs messenger that he personally served the letter to Lorenzo Ching Cuanco, and
Municipal Ordinance No. 21 which expressly stated that the property owners were
already notified of the expropriation proceeding. The CA noted that JILCSFI failed to
adduce controverting evidence, thus the presumption of regularity was not overcome.[33]

The Present Petition

In this petition, petitioner JILCSFI raises the following issues: (1) whether the
respondent complied with the requirement, under Section 19 of the Local Government
Code, of a valid and definite offer to acquire the property prior to the filing of the
complaint; (2) whether its property which is already intended to be used for public
purposes may still be expropriated by the respondent; and (3) whether the requisites for
an easement for right-of-way under Articles 649 to 657 of the New Civil Code may be
dispensed with.
The petitioner stresses that the law explicitly requires that a valid and definite offer
be made to the owner of the property and that such offer was not accepted. It argues

that, in this case, there was no evidence to show that such offer has been made either to
the previous owner or the petitioner, the present owner. The petitioner contends that the
photocopy of the letter of Engr. Reyes, notifying Lorenzo Ching Cuanco of the
respondents intention to construct a road on its property, cannot be considered because
the trial court did not admit it in evidence. And assuming that such letter is admissible in
evidence, it would not prove that the offer has been made to the previous owner
because mere notice of intent to purchase is not equivalent to an offer to purchase. The
petitioner further argues that the offer should be made to the proper party, that is, to the
owner of the property. It noted that the records in this case show that as of February
1993, it was already the owner of the property. Assuming, therefore, that there was an
offer to purchase the property, the same should have been addressed to the petitioner,
as present owner.[34]
The petitioner maintains that the power of eminent domain must be strictly
construed since its exercise is necessarily in derogation of the right to property
ownership. All the requirements of the enabling law must, therefore, be strictly complied
with. Compliance with such requirements cannot be presumed but must be proved by
the local government exercising the power. The petitioner adds that the local
government should, likewise, comply with the requirements for an easement of right-ofway; hence, the road must be established at a point least prejudicial to the owner of the
property. Finally, the petitioner argues that, if the property is already devoted to or
intended to be devoted to another public use, its expropriation should not be allowed.[35]
For its part, the respondent avers that the CA already squarely resolved the issues
raised in this petition, and the petitioner failed to show valid and compelling reason to
reverse the CAs findings. Moreover, it is not the function of the Supreme Court to weigh
the evidence on factual issues all over again.[36] The respondent contends that the Ching
Cuancos were deemed to have admitted that an offer to purchase has been made and
that they refused to accept such offer considering their failure to specifically deny such
allegation in the complaint. In light of such admission, the exclusion of the photocopy of
the letter of Engr. Reyes, therefore, is no longer significant.[37]

The Ruling of the Court

The petition is meritorious.
At the outset, it must be stressed that only questions of law may be raised by the
parties and passed upon by the Supreme Court in petitions for review on certiorari.
[38]
Findings of fact of the CA, affirming those of the trial court, are final and conclusive
and may not be reviewed on appeal.[39]
Nonetheless, where it is shown that the conclusion is a finding grounded on
speculations, surmises or conjectures or where the judgment is based on
misapprehension of facts, the Supreme Court may reexamine the evidence on record.[40]

Eminent Domain: Nature and Scope

The right of eminent domain is usually understood to be an ultimate right of the

sovereign power to appropriate any property within its territorial sovereignty for a public
purpose. The nature and scope of such power has been comprehensively described as
follows:
It is an indispensable attribute of sovereignty; a power grounded in the primary duty of
government to serve the common need and advance the general welfare. Thus, the right
of eminent domain appertains to every independent government without the necessity
for constitutional recognition. The provisions found in modern constitutions of civilized
countries relating to the taking of property for the public use do not by implication grant
the power to the government, but limit the power which would, otherwise, be without
limit. Thus, our own Constitution provides that [p]rivate property shall not be taken for
public use without just compensation. Furthermore, the due process and equal
protection clauses act as additional safeguards against the arbitrary exercise of this
governmental power.[41]

Strict Construction and Burden of Proof

The exercise of the right of eminent domain, whether directly by the State or by its
authorized agents, is necessarily in derogation of private rights. [42] It is one of the
harshest proceedings known to the law. Consequently, when the sovereign delegates
the power to a political unit or agency, a strict construction will be given against the
agency asserting the power.[43] The authority to condemn is to be strictly construed in
favor of the owner and against the condemnor.[44] When the power is granted, the extent
to which it may be exercised is limited to the express terms or clear implication of the
statute in which the grant is contained.[45]
Corollarily, the respondent, which is the condemnor, has the burden of proving all
the essentials necessary to show the right of condemnation. [46] It has the burden of proof
to establish that it has complied with all the requirements provided by law for the valid
exercise of the power of eminent domain.
The grant of the power of eminent domain to local government units is grounded on
Section 19 of R.A. No. 7160 which reads:
SEC. 19. Eminent Domain. A local government unit may, through its chief executive and
acting pursuant to an ordinance, exercise the power of eminent domain for public use, or
purpose, or welfare for the benefit of the poor and the landless, upon payment of just
compensation, pursuant to the provisions of the Constitution and pertinent
laws; Provided, however, That the power of eminent domain may not be exercised
unless a valid and definite offer has been previously made to the owner, and such offer
was not accepted: Provided, further, That the local government unit may immediately
take possession of the property upon the filing of the expropriation proceedings and
upon making a deposit with the proper court of at least fifteen percent (15%) of the fair
market value of the property based on the current tax declaration of the property to be
expropriated:Provided, finally, That the amount to be paid for the expropriated property
shall be determined by the proper court based on the fair market value at the time of the
taking of the property.

The Court declared that the following requisites for the valid exercise of the power of
eminent domain by a local government unit must be complied with:
1. An ordinance is enacted by the local legislative council authorizing the local chief
executive, in behalf of the local government unit, to exercise the power of
eminent domain or pursue expropriation proceedings over a particular private
property.
2. The power of eminent domain is exercised for public use, purpose or welfare, or
for the benefit of the poor and the landless.
3. There is payment of just compensation, as required under Section 9, Article III of
the Constitution, and other pertinent laws.
4. A valid and definite offer has been previously made to the owner of the property
sought to be expropriated, but said offer was not accepted.[47]

Valid and Definite Offer

Article 35 of the Rules and Regulations Implementing the Local Government Code
provides:
ARTICLE 35. Offer to Buy and Contract of Sale. (a) The offer to buy private property for
public use or purpose shall be in writing. It shall specify the property sought to be
acquired, the reasons for its acquisition, and the price offered.
(b) If the owner or owners accept the offer in its entirety, a contract of sale shall be
executed and payment forthwith made.
(c) If the owner or owners are willing to sell their property but at a price higher than that
offered to them, the local chief executive shall call them to a conference for the purpose
of reaching an agreement on the selling price. The chairman of the appropriation or
finance committee of the sanggunian, or in his absence, any member of
the sanggunian duly chosen as its representative, shall participate in the conference.
When an agreement is reached by the parties, a contract of sale shall be drawn and
executed.
(d) The contract of sale shall be supported by the following documents:
(1) Resolution of the sanggunian authorizing the local chief executive to enter into a
contract of sale. The resolution shall specify the terms and conditions to be embodied in
the contract;
(2) Ordinance appropriating the amount specified in the contract; and
(3) Certification of the local treasurer as to availability of funds together with a statement
that such fund shall not be disbursed or spent for any purpose other than to pay for the
purchase of the property involved.

The respondent was burdened to prove the mandatory requirement of a valid and
definite offer to the owner of the property before filing its complaint and the rejection
thereof by the latter.[48] It is incumbent upon the condemnor to exhaust all reasonable
efforts to obtain the land it desires by agreement.[49] Failure to prove compliance with the
mandatory requirement will result in the dismissal of the complaint.[50]
An offer is a unilateral proposition which one party makes to the other for the
celebration of a contract.[51] It creates a power of acceptance permitting the offeree, by
accepting the offer, to transform the offerors promise into a contractual obligation.
[52]
Corollarily, the offer must be complete, indicating with sufficient clearness the kind of
contract intended and definitely stating the essential conditions of the proposed contract.
[53]
An offer would require, among other things, a clear certainty on both the object and
the cause or consideration of the envisioned contract.[54]
The purpose of the requirement of a valid and definite offer to be first made to the
owner is to encourage settlements and voluntary acquisition of property needed for
public purposes in order to avoid the expense and delay of a court action. [55] The law is
designed to give to the owner the opportunity to sell his land without the expense and
inconvenience of a protracted and expensive litigation. This is a substantial right which
should be protected in every instance. [56] It encourages acquisition without litigation and
spares not only the landowner but also the condemnor, the expenses and delays of
litigation. It permits the landowner to receive full compensation, and the entity acquiring
the property, immediate use and enjoyment of the property. A reasonable offer in good
faith, not merely perfunctory or pro forma offer, to acquire the property for a reasonable
price must be made to the owner or his privy.[57] A single bona fide offer that is rejected
by the owner will suffice.
The expropriating authority is burdened to make known its definite and valid offer to
all the owners of the property. However, it has a right to rely on what appears in the
certificate of title covering the land to be expropriated. Hence, it is required to make its
offer only to the registered owners of the property. After all, it is well-settled that persons
dealing with property covered by a Torrens certificate of title are not required to go
beyond what appears on its face.[58]
In the present case, the respondent failed to prove that before it filed its complaint, it
made a written definite and valid offer to acquire the property for public use as an access
road. The only evidence adduced by the respondent to prove its compliance with Section
19 of the Local Government Code is the photocopy of the letter purportedly bearing the
signature of Engr. Jose Reyes, to only one of the co-owners, Lorenzo Ching Cuanco.
The letter reads:
MR. LORENZO CHING CUANCO
18 Alcalde Jose Street
Capasigan, Pasig
Metro Manila
Dear Mr. Cuanco:
This refers to your parcel of land located along E. Santos Street, Barangay Palatiw,
Pasig, Metro Manila embraced in and covered by TCT No. 66585, a portion of which with
an area of fifty-one (51) square meters is needed by the Municipal Government of Pasig

for conversion into a road-right of way for the benefit of several residents living in the
vicinity of your property. Attached herewith is the sketch plan for your information.
In this connection, may we respectfully request your presence in our office to discuss
this project and the price that may be mutually agreed upon by you and the Municipality
of Pasig.
Thank you.
Very truly yours,
(Sgd.)
ENGR. JOSE L. REYES
Technical Asst. to the Mayor
on Infrastructure[59]
It bears stressing, however, that the respondent offered the letter only to prove its
desire or intent to acquire the property for a right-of-way.[60] The document was not
offered to prove that the respondent made a definite and valid offer to acquire the
property. Moreover, the RTC rejected the document because the respondent failed to
adduce in evidence the original copy thereof. [61] The respondent, likewise, failed to
adduce evidence that copies of the letter were sent to and received by all the co-owners
of the property, namely, Lorenzo Ching Cuanco, Victor Ching Cuanco and Ernesto Kho.
The respondent sought to prove, through the testimony of its messenger, Rolando
Togonon, that Lorenzo Ching Cuanco received the original of the said letter. But
Togonon testified that he merely gave the letter to a lady, whom he failed to identify. He
stated that the lady went inside the store of Lorenzo Ching Cuanco, and later gave the
letter back to him bearing the signature purportedly of one Luz Bernarte. However,
Togonon admitted, on cross-examination, that he did not see Bernarte affixing her
signature on the letter. Togonon also declared that he did not know and had never met
Lorenzo Ching Cuanco and Bernarte:
Q And after you received this letter from that lady, what did you do afterwards?
A I brought it with me, that letter, and then I went to Caruncho.
Q So, [M]r. Witness, you are telling this Honorable Court that this letter intended
to Mr. Lorenzo was served at Pasig Trading which was situated at No. 18
Alkalde Jose Street on February 23, 1993?
A Yes, Maam.
ATTY. TAN:
That is all for the witness, Your Honor.
COURT:
Do you have any cross-examination?
ATTY. JOLO:
Just a few cross, Your Honor, please. With the kind permission of the Honorable
Court.

COURT:
Proceed.
CROSS-EXAMINATION
BY ATTY. JOLO:
Q Mr. Witness, do you know Mr. Lorenzo Ching [Cuanco]
A I do not know him.
Q As a matter of fact, you have not seen him even once, isnt not (sic)?
A Yes, Sir.
Q This Luz Bernarte, do you know her?
A I do not know her.
Q As a matter of fact, you did not see Mrs. Bernarte even once?
A That is correct.
Q And as a matter of fact, [M]r. Witness, you did not see Mrs. Luz Bernarte
affixing her signature on the bottom portion of this demand letter, marked
as Exh. C-2?
A Yes, Sir.[62]
Even if the letter was, indeed, received by the co-owners, the letter is not a valid and
definite offer to purchase a specific portion of the property for a price certain. It is merely
an invitation for only one of the co-owners, Lorenzo Ching Cuanco, to a conference to
discuss the project and the price that may be mutually acceptable to both parties.
There is no legal and factual basis to the CAs ruling that the annotation of a notice
of lis pendens at the dorsal portion of petitioners TCT No. PT-92579 is a substantial
compliance with the requisite offer. A notice of lis pendens is a notice to the whole world
of the pendency of an action involving the title to or possession of real property and a
warning that those who acquire an interest in the property do so at their own risk and
that they gamble on the result of the litigation over it. [63] Moreover, the lis pendens was
annotated at the dorsal portion of the title only on November 26, 1993, long after the
complaint had been filed in the RTC against the Ching Cuancos.
Neither is the declaration in one of the whereas clauses of the ordinance that the
property owners were already notified by the municipality of the intent to purchase the
same for public use as a municipal road, a substantial compliance with the requirement
of a valid and definite offer under Section 19 of R.A. No. 7160. Presumably,
the Sangguniang Bayan relied on the erroneous premise that the letter of Engr. Reyes
reached the co-owners of the property. In the absence of competent evidence that,
indeed, the respondent made a definite and valid offer to all the co-owners of the
property, aside from the letter of Engr. Reyes, the declaration in the ordinance is not a
compliance with Section 19 of R.A. No. 7160.
The respondent contends, however, that the Ching Cuancos, impliedly admitted the
allegation in its complaint that an offer to purchase the property was made to them and
that they refused to accept the offer by their failure to specifically deny such allegation in
their answer. This contention is wrong. As gleaned from their answer to the complaint,

the Ching Cuancos specifically denied such allegation for want of sufficient knowledge to
form a belief as to its correctness. Under Section 10,[64] Rule 8 of the Rules of Court,
such form of denial, although not specific, is sufficient.

Public Necessity
We reject the contention of the petitioner that its property can no longer be
expropriated by the respondent because it is intended for the construction of a place for
religious worship and a school for its members. As aptly explained by this Court
in Manosca v. Court of Appeals,[65] thus:
It has been explained as early as Sea v. Manila Railroad Co., that:
A historical research discloses the meaning of the term public use to be one of constant
growth. As society advances, its demands upon the individual increases and each
demand is a new use to which the resources of the individual may be devoted.
for whatever is beneficially employed for the community is a public use.
Chief Justice Enrique M. Fernando states:
The taking to be valid must be for public use. There was a time when it was felt that a
literal meaning should be attached to such a requirement. Whatever project is
undertaken must be for the public to enjoy, as in the case of streets or parks. Otherwise,
expropriation is not allowable. It is not so any more. As long as the purpose of the taking
is public, then the power of eminent domain comes into play. As just noted, the
constitution in at least two cases, to remove any doubt, determines what is public use.
One is the expropriation of lands to be subdivided into small lots for resale at cost to
individuals. The other is the transfer, through the exercise of this power, of utilities and
other private enterprise to the government. It is accurate to state then that at present
whatever may be beneficially employed for the general welfare satisfies the
requirements of public use.
Chief Justice Fernando, writing the ponencia in J.M. Tuason & Co. vs. Land Tenure
Administration, has viewed the Constitution a dynamic instrument and one that is not to
be construed narrowly or pedantically so as to enable it to meet adequately whatever
problems the future has in store. Fr. Joaquin Bernas, a noted constitutionalist himself,
has aptly observed that what, in fact, has ultimately emerged is a concept of public use
which is just as broad as public welfare.
Petitioners ask: But (w)hat is the so-called unusual interest that the expropriation of
(Felix Manalos) birthplace become so vital as to be a public use appropriate for the
exercise of the power of eminent domain when only members of the Iglesia ni
Cristo would benefit? This attempt to give some religious perspective to the case
deserves little consideration, for what should be significant is the principal objective of,
not the casual consequences that might follow from, the exercise of the power. The
purpose in setting up the marker is essentially to recognize the distinctive contribution of
the late Felix Manalo to the culture of the Philippines, rather than to commemorate his
founding and leadership of the Iglesia ni Cristo. The practical reality that greater benefit

may be derived by members of the Iglesia ni Cristo than by most others could well be
true but such a peculiar advantage still remains to be merely incidental and secondary in
nature. Indeed, that only a few would actually benefit from the expropriation of property,
does not necessarily diminish the essence and character of public use.
The petitioner asserts that the respondent must comply with the requirements for
the establishment of an easement of right-of-way, more specifically, the road must be
constructed at the point least prejudicial to the servient state, and that there must be no
adequate outlet to a public highway. The petitioner asserts that the portion of the lot
sought to be expropriated is located at the middle portion of the petitioners entire parcel
of land, thereby splitting the lot into two halves, and making it impossible for the
petitioner to put up its school building and worship center.
The subject property is expropriated for the purpose of constructing a road. The
respondent is not mandated to comply with the essential requisites for an easement of
right-of-way under the New Civil Code. Case law has it that in the absence of legislative
restriction, the grantee of the power of eminent domain may determine the location and
route of the land to be taken [66] unless such determination is capricious and wantonly
injurious.[67] Expropriation is justified so long as it is for the public good and there is
genuine necessity of public character.[68] Government may not capriciously choose what
private property should be taken.[69]
The respondent has demonstrated the necessity for constructing a road from E. R.
Santos Street to Sto. Tomas Bukid. The witnesses, who were residents of Sto. Tomas
Bukid, testified that although there were other ways through which one can enter the
vicinity, no vehicle, however, especially fire trucks, could enter the area except through
the newly constructed Damayan Street. This is more than sufficient to establish that
there is a genuine necessity for the construction of a road in the area. After all, absolute
necessity is not required, only reasonable and practical necessity will suffice.[70]
Nonetheless, the respondent failed to show the necessity for constructing the road
particularly in the petitioners property and not elsewhere. [71] We note that the whereas
clause of the ordinance states that the 51-square meter lot is the shortest and most
suitable access road to connect Sto. Tomas Bukid to E. R. Santos Street. The
respondents complaint also alleged that the said portion of the petitioners lot has been
surveyed as the best possible ingress and egress. However, the respondent failed to
adduce a preponderance of evidence to prove its claims.
On this point, the trial court made the following findings:
The contention of the defendants that there is an existing alley that can serve the
purpose of the expropriator is not accurate. An inspection of the vicinity reveals that the
alley being referred to by the defendants actually passes thru Bagong Taon St. but only
about one-half (1/2) of its entire length is passable by vehicle and the other half is merely
a foot-path. It would be more inconvenient to widen the alley considering that its sides
are occupied by permanent structures and its length from the municipal road to the area
sought to be served by the expropriation is considerably longer than the proposed
access road. The area to be served by the access road is composed of compact wooden
houses and literally a slum area. As a result of the expropriation of the 51-square meter
portion of the property of the intervenor, a 3-meter wide road open to the public is
created. This portion of the property of the intervenor is the most convenient access to
the interior of Sto. Tomas Bukid since it is not only a short cut to the interior of the Sto.

Tomas Bukid but also an easy path for vehicles entering the area, not to mention the 3meter wide road requirement of the Fire Code.[72]
However, as correctly pointed out by the petitioner, there is no showing in the record
that an ocular inspection was conducted during the trial. If, at all, the trial court
conducted an ocular inspection of the subject property during the trial, the petitioner was
not notified thereof. The petitioner was, therefore, deprived of its right to due process. It
bears stressing that an ocular inspection is part of the trial as evidence is thereby
received and the parties are entitled to be present at any stage of the trial.
[73]
Consequently, where, as in this case, the petitioner was not notified of any ocular
inspection of the property, any factual finding of the court based on the said inspection
has no probative weight. The findings of the trial court based on the conduct of the
ocular inspection must, therefore, be rejected.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision and
Resolution of the Court of Appeals are REVERSED AND SET ASIDE. The RTC is
ordered to dismiss the complaint of the respondent without prejudice to the refiling
thereof.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.

S E C O N D
LOURDES DE LA PAZ MASIKIP,
Petitioner,

D I V I S I O N

G.R. No. 136349

Present:

- versus PUNO, J., Chairman,

SANDOVAL-GUTIERREZ,
CORONA,
AZCUNA, and
GARCIA, JJ.

THE CITY OF PASIG, HON.

MARIETTA A. LEGASPI, in her
capacity as Presiding Judge of the
Regional Trial Court of Pasig City,
Branch 165 and THE COURT OF Promulgated:
APPEALS,
Respondents.
January 23, 2006
x-----------------------------------------------------------------------------------------x
DECISION

SANDOVAL GUTIERREZ, J.:

Where the taking by the State of private property is done for the benefit of a small
community which seeks to have its own sports and recreational facility, notwithstanding
that there is such a recreational facility only a short distance away, such taking cannot
be considered to be for public use. Its expropriation is not valid. In this case, the Court
defines what constitutes a genuine necessity for public use.
This petition for review on certiorari assails the Decision[1] of the Court of Appeals dated
October 31, 1997 in CA-G.R. SP No. 41860 affirming the Order [2] of the Regional Trial
Court, Branch 165, Pasig City, dated May 7, 1996 in S.C.A. No. 873. Likewise assailed
is the Resolution[3] of the same court dated November 20, 1998 denying petitioners
Motion for Reconsideration.
The facts of the case are:
Petitioner Lourdes Dela Paz Masikip is the registered owner of a parcel of land with an
area of 4,521 square meters located at Pag-Asa, Caniogan, Pasig City, Metro Manila.
In a letter dated January 6, 1994, the then Municipality of Pasig, now City of Pasig,
respondent, notified petitioner of its intention to expropriate a 1,500 square meter portion
of her property to be used for the sports development and recreational activities of the
residents of Barangay Caniogan. This was pursuant to Ordinance No. 42, Series of 1993
enacted by the thenSangguniang Bayan of Pasig.
Again, on March 23, 1994, respondent wrote another letter to petitioner, but this time the
purpose was allegedly in line with the program of the Municipal Government to provide
land opportunities to deserving poor sectors of our community.
On May 2, 1994, petitioner sent a reply to respondent stating that the intended
expropriation of her property is unconstitutional, invalid, and oppressive, as the area of
her lot is neither sufficient nor suitable to provide land opportunities to deserving poor
sectors of our community.
In its letter of December 20, 1994, respondent reiterated that the purpose of the
expropriation of petitioners property is to provide sports and recreational facilities to its
poor residents.
Subsequently, on February 21, 1995, respondent filed with the trial court a complaint for
expropriation, docketed as SCA No. 873. Respondent prayed that the trial court, after
due notice and hearing, issue an order for the condemnation of the property; that

commissioners be appointed for the purpose of determining the just compensation; and
that judgment be rendered based on the report of the commissioners.
On April 25, 1995, petitioner filed a Motion to Dismiss the complaint on the following
grounds:
I
PLAINTIFF HAS NO CAUSE OF ACTION FOR THE EXERCISE
OF THE POWER OF EMINENT DOMAIN, CONSIDERING THAT:
(A) THERE IS NO GENUINE NECESSITY FOR
THE TAKING OF THE PROPERTY SOUGHT TO
BE EXPROPRIATED.
(B)
PLAINTIFF
HAS ARBITRARILY AND
CAPRICIOUSLY CHOSEN THE PROPERTY
SOUGHT TO BE EXPROPRIATED.
(C)
EVEN
ASSUMING ARGUENDO THAT
DEFENDANTS
PROPERTY
MAY
BE
EXPROPRIATED BY PLAINTIFF, THE FAIR
MARKET VALUE OF THE PROPERTY TO BE
EXPROPRIATED FAR EXCEEDS SEVENTYEIGHT THOUSAND PESOS (P78,000.00)

II
PLAINTIFFS COMPLAINT IS DEFECTIVE IN FORM AND
SUBSTANCE, CONSIDERING THAT:
(A) PLAINTIFF FAILS TO ALLEGE
CERTAINTY
THE
PURPOSE
OF
EXPROPRIATION.

WITH
THE

(B) PLAINTIFF HAS FAILED TO COMPLY WITH

THE PREREQUISITES LAID DOWN IN SECTION
34, RULE VI OF THE RULES AND REGULATIONS
IMPLEMENTING THE LOCAL GOVERNMENT
CODE; THUS, THE INSTANT EXPROPRIATION
PROCEEDING IS PREMATURE.
III
THE GRANTING OF THE EXPROPRIATION WOULD VIOLATE
SECTION 261 (V) OF THE OMNIBUS ELECTION CODE.

IV
PLAINTIFF CANNOT TAKE POSSESSION OF THE SUBJECT
PROPERTY BY MERELY DEPOSITING AN AMOUNT EQUAL TO
FIFTEEN PERCENT (15%) OF THE VALUE OF THE PROPERTY
BASED ON THE CURRENT TAX DECLARATION OF THE
SUBJECT PROPERTY.[4]

On May 7, 1996, the trial court issued an Order denying the Motion to Dismiss, [5] on the
ground that there is a genuine necessity to expropriate the property for the sports
and recreational activities of the residents of Pasig. As to the issue of just
compensation, the trial court held that the same is to be determined in accordance with
the Revised Rules of Court.
Petitioner filed a motion for reconsideration but it was denied by the trial court in its
Order of July 31, 1996. Forthwith, it appointed the City Assessor and City Treasurer of
Pasig City as commissioners to ascertain the just compensation. This prompted
petitioner to file with the Court of Appeals a special civil action for certiorari, docketed as
CA-G.R. SP No. 41860. On October 31, 1997, the Appellate Court dismissed the petition
for lack of merit. Petitioners Motion for Reconsideration was denied in a Resolution
dated November 20, 1998.
Hence, this petition anchored on the following grounds:
THE QUESTIONED DECISION DATED 31 OCTOBER 1997
(ATTACHMENT A) AND RESOLUTION DATED 20 NOVEMBER
1998 (ATTACHMENT B) ARE CONTRARY TO LAW, THE RULES
OF COURT AND JURISPRUDENCE CONSIDERING THAT:
I
A. THERE IS NO EVIDENCE TO PROVE THAT
THERE IS GENUINE NECESSITY FOR
THE TAKING OF THE PETITIONERS
PROPERTY.
B. THERE IS NO EVIDENCE TO PROVE THAT
THE PUBLIC USE REQUIREMENT FOR
THE EXERCISE OF THE POWER OF
EMINENT DOMAIN HAS BEEN COMPLIED
WITH.
C. THERE IS NO EVIDENCE TO PROVE THAT
RESPONDENT CITY OF PASIG HAS
COMPLIED WITH ALL CONDITIONS
PRECEDENT FOR THE EXERCISE OF
THE POWER OF EMINENT DOMAIN.

THE COURT A QUOS ORDER DATED 07 MAY 1996 AND 31

JULY 1996, WHICH WERE AFFIRMED BY THE COURT OF
APPEALS, EFFECTIVELY AMOUNT TO THE TAKING OF
PETITIONERS PROPERTY WITHOUT DUE PROCESS OF LAW:

II
THE COURT OF APPEALS GRAVELY ERRED IN
APPLYING
OF
RULE
ON
ACTIONABLE
DOCUMENTS TO THE DOCUMENTS ATTACHED
TO
RESPONDENT
CITY
OF
PASIGS COMPLAINT DATED 07 APRIL 1995 TO
JUSTIFY THE COURT A QUOS DENIAL OF
PETITIONERS RESPONSIVE PLEADING TO THE
COMPLAINT FOR EXPROPRIATION
(THE
MOTION TO DISMISS DATED 21 APRIL 1995).
III
THE COURT OF APPEALS GRAVELY ERRED IN
APPLYING THE RULE ON HYPOTHETICAL
ADMISSION OF FACTS ALLEGED IN A
COMPLAINT CONSIDERING THAT THE MOTION
TO DISMISS FILED BY PETITIONER IN THE
EXPROPRIATION CASE BELOW WAS THE
RESPONSIVE PLEADING REQUIRED TO BE
FILED UNDER THE THEN RULE 67 OF THE
RULES OF COURT AND NOT AN ORIDNARY
MOTION TO DISMISS UNDER RULE 16 OF THE
RULES OF COURT.

The foregoing arguments may be synthesized into two main issues one substantive and
one procedural. We will first address the procedural issue.
Petitioner filed her Motion to Dismiss the complaint for expropriation on April 25, 1995. It
was denied by the trial court on May 7, 1996. At that time, the rule on expropriation was
governed by Section 3, Rule 67 of the Revised Rules of Court which provides:
SEC. 3. Defenses and objections. Within the time specified in the
summons, each defendant, in lieu of an answer, shall present in a single
motion to dismiss or for other appropriate relief, all his objections and
defenses to the right of the plaintiff to take his property for the use or
purpose specified in the complaint. All such objections and defenses not
so presented are waived. A copy of the motion shall be served on the
plaintiffs attorney of record and filed with the court with proof of service.

The motion to dismiss contemplated in the above Rule clearly constitutes the responsive
pleading which takes the place of an answer to the complaint for expropriation. Such
motion is the pleading that puts in issue the right of the plaintiff to expropriate the
defendants property for the use specified in the complaint. All that the law requires is that
a copy of the said motion be served on plaintiffs attorney of record. It is the court that at
its convenience will set the case for trial after the filing of the said pleading.[6]
The Court of Appeals therefore erred in holding that the motion to dismiss filed by
petitioner hypothetically admitted the truth of the facts alleged in the complaint,
specifically that there is a genuine necessity to expropriate petitioners property for public
use. Pursuant to the above Rule, the motion is a responsive pleading joining the issues.
What the trial court should have done was to set the case for the reception of evidence
to determine whether there is indeed a genuine necessity for the taking of the property,
instead of summarily making a finding that the taking is for public use and appointing
commissioners to fix just compensation. This is especially so considering that the
purpose of the expropriation was squarely challenged and put in issue by petitioner in
her motion to dismiss.
Significantly, the above Rule allowing a defendant in an expropriation case to file a
motion to dismiss in lieu of an answer was amended by the 1997 Rules of Civil
Procedure, which took effect on July 1, 1997. Section 3, Rule 67 now expressly
mandates that any objection or defense to the taking of the property of a defendant must
be set forth in an answer.
The fact that the Court of Appeals rendered its Decision in CA-G.R. SP No. 41860 on
October 31, after the 1997 Rules of Civil Procedure took effect, is of no moment. It is
only fair that the Rule at the time petitioner filed her motion to dismiss should govern.
The new provision cannot be applied retroactively to her prejudice.
We now proceed to address the substantive issue.
In the early case of US v. Toribio,[7] this Court defined the power of eminent domain as
the right of a government to take and appropriate private property to public use,
whenever the public exigency requires it, which can be done only on condition of
providing a reasonable compensation therefor. It has also been described as the power
of the State or its instrumentalities to take private property for public use and is
inseparable from sovereignty and inherent in government.[8]
The power of eminent domain is lodged in the legislative branch of the government. It
delegates the exercise thereof to local government units, other public entities and public
utility corporations,[9] subject only to Constitutional limitations. Local governments have

no inherent power of eminent domain and may exercise it only when expressly
authorized by statute.[10] Section 19 of the Local Government Code of 1991 (Republic Act
No. 7160) prescribes the delegation by Congress of the power of eminent domain to
local government units and lays down the parameters for its exercise, thus:
SEC. 19. Eminent Domain. A local government unit may, through its chief
executive and acting pursuant to an ordinance, exercise the power of
eminent domain for public use, purpose or welfare for the benefit of the
poor and the landless, upon payment of just compensation, pursuant to
the provisions of the Constitution and pertinent laws: Provided, however,
That, the power of eminent domain may not be exercised unless a valid
and definite offer has been previously made to the owner and such offer
was not accepted: Provided, further, That, the local government unit may
immediately take possession of the property upon the filing of
expropriation proceedings and upon making a deposit with the proper
court of at least fifteen percent (15%) of the fair market value of the
property based on the current tax declaration of the property to be
expropriated: Provided, finally, That, the amount to be paid for
expropriated property shall be determined by the proper court, based on
the fair market value at the time of the taking of the property.
Judicial review of the exercise of eminent domain is limited to the following areas of
concern: (a) the adequacy of the compensation, (b) the necessity of the taking, and (c)
the public use character of the purpose of the taking.[11]
In this case, petitioner contends that respondent City of Pasig failed to establish a
genuine necessity which justifies the condemnation of her property. While she does not
dispute the intended public purpose, nonetheless, she insists that there must be a
genuine necessity for the proposed use and purposes. According to petitioner, there is
already an established sports development and recreational activity center at Rainforest
Park in Pasig City, fully operational and being utilized by its residents, including those
from Barangay Caniogan. Respondent does not dispute this. Evidently, there is no
genuine necessity to justify the expropriation.
The right to take private property for public purposes necessarily originates from the
necessity and the taking must be limited to such necessity. In City of Manila v. Chinese
Community of Manila,[12] we held that the very foundation of the right to exercise
eminent domain is a genuine necessity and that necessity must be of a public
character. Moreover, the ascertainment of the necessity must precede or accompany
and not follow, the taking of the land. In City of Manila v. Arellano Law College,[13] we
ruled that necessity within the rule that the particular property to be expropriated must be
necessary, does not mean an absolute but only a reasonable or practical necessity, such
as would combine the greatest benefit to the public with the least inconvenience and
expense to the condemning party and the property owner consistent with such benefit.

Applying this standard, we hold that respondent City of Pasig has failed to
establish that there is a genuine necessity to expropriate petitioners property. Our
scrutiny of the records shows that the Certification [14] issued by the Caniogan Barangay
Council dated November 20, 1994, the basis for the passage of Ordinance No. 42 s.
1993 authorizing the expropriation, indicates that the intended beneficiary is the
Melendres Compound Homeowners Association, a private, non-profit organization, not
the residents of Caniogan. It can be gleaned that the members of the said Association
are desirous of having their own private playground and recreational facility. Petitioners
lot is the nearest vacant space available. The purpose is, therefore, not clearly and
categorically public. The necessity has not been shown, especially considering that there
exists an alternative facility for sports development and community recreation in the
area, which is the Rainforest Park, available to all residents of Pasig City, including those
of Caniogan.
The right to own and possess property is one of the most cherished rights of
men. It is so fundamental that it has been written into organic law of every nation where
the rule of law prevails. Unless the requisite of genuine necessity for the expropriation of
ones property is clearly established, it shall be the duty of the courts to protect the rights
of individuals to their private property. Important as the power of eminent domain may
be, the inviolable sanctity which the Constitution attaches to the property of the individual
requires not only that the purpose for the taking of private property be specified. The
genuine necessity for the taking, which must be of a public character, must also be
shown to exist.
WHEREFORE, the petition for review is GRANTED. The challenged Decision
and Resolution of the Court of Appeals in CA-G.R. SP No. 41860 are REVERSED. The
complaint for expropriation filed before the trial court by respondent City of Pasig,
docketed as SCA No. 873, is ordered DISMISSED.

SO ORDERED.
ANGELINA SANDOVAL-GUTIERREZ
Associate Justice

S E C O N D
LOURDES DE LA PAZ MASIKIP,

D I V I S I O N

G.R. No. 136349

Petitioner,
Present:
- versus PUNO, J., Chairman,
SANDOVAL-GUTIERREZ,
CORONA,
AZCUNA, and
GARCIA, JJ.

THE CITY OF PASIG, HON.

MARIETTA A. LEGASPI, in her
capacity as Presiding Judge of the
Regional Trial Court of Pasig City,
Branch 165 and THE COURT OF Promulgated:
APPEALS,
Respondents.
January 23, 2006
x-----------------------------------------------------------------------------------------x
DECISION

SANDOVAL GUTIERREZ, J.:

Where the taking by the State of private property is done for the benefit of a small
community which seeks to have its own sports and recreational facility, notwithstanding
that there is such a recreational facility only a short distance away, such taking cannot
be considered to be for public use. Its expropriation is not valid. In this case, the Court
defines what constitutes a genuine necessity for public use.
This petition for review on certiorari assails the Decision[1] of the Court of Appeals dated
October 31, 1997 in CA-G.R. SP No. 41860 affirming the Order [2] of the Regional Trial
Court, Branch 165, Pasig City, dated May 7, 1996 in S.C.A. No. 873. Likewise assailed
is the Resolution[3] of the same court dated November 20, 1998 denying petitioners
Motion for Reconsideration.
The facts of the case are:
Petitioner Lourdes Dela Paz Masikip is the registered owner of a parcel of land with an
area of 4,521 square meters located at Pag-Asa, Caniogan, Pasig City, Metro Manila.
In a letter dated January 6, 1994, the then Municipality of Pasig, now City of Pasig,
respondent, notified petitioner of its intention to expropriate a 1,500 square meter portion
of her property to be used for the sports development and recreational activities of the

residents of Barangay Caniogan. This was pursuant to Ordinance No. 42, Series of 1993
enacted by the thenSangguniang Bayan of Pasig.
Again, on March 23, 1994, respondent wrote another letter to petitioner, but this time the
purpose was allegedly in line with the program of the Municipal Government to provide
land opportunities to deserving poor sectors of our community.
On May 2, 1994, petitioner sent a reply to respondent stating that the intended
expropriation of her property is unconstitutional, invalid, and oppressive, as the area of
her lot is neither sufficient nor suitable to provide land opportunities to deserving poor
sectors of our community.
In its letter of December 20, 1994, respondent reiterated that the purpose of the
expropriation of petitioners property is to provide sports and recreational facilities to its
poor residents.
Subsequently, on February 21, 1995, respondent filed with the trial court a complaint for
expropriation, docketed as SCA No. 873. Respondent prayed that the trial court, after
due notice and hearing, issue an order for the condemnation of the property; that
commissioners be appointed for the purpose of determining the just compensation; and
that judgment be rendered based on the report of the commissioners.
On April 25, 1995, petitioner filed a Motion to Dismiss the complaint on the following
grounds:
I
PLAINTIFF HAS NO CAUSE OF ACTION FOR THE EXERCISE
OF THE POWER OF EMINENT DOMAIN, CONSIDERING THAT:
(A) THERE IS NO GENUINE NECESSITY FOR
THE TAKING OF THE PROPERTY SOUGHT TO
BE EXPROPRIATED.
(B)
PLAINTIFF
HAS ARBITRARILY AND
CAPRICIOUSLY CHOSEN THE PROPERTY
SOUGHT TO BE EXPROPRIATED.
(C)
EVEN
ASSUMING ARGUENDO THAT
DEFENDANTS
PROPERTY
MAY
BE
EXPROPRIATED BY PLAINTIFF, THE FAIR
MARKET VALUE OF THE PROPERTY TO BE
EXPROPRIATED FAR EXCEEDS SEVENTYEIGHT THOUSAND PESOS (P78,000.00)

II
PLAINTIFFS COMPLAINT IS DEFECTIVE IN FORM AND
SUBSTANCE, CONSIDERING THAT:
(A) PLAINTIFF FAILS TO ALLEGE
CERTAINTY
THE
PURPOSE
OF
EXPROPRIATION.

WITH
THE

(B) PLAINTIFF HAS FAILED TO COMPLY WITH

THE PREREQUISITES LAID DOWN IN SECTION
34, RULE VI OF THE RULES AND REGULATIONS
IMPLEMENTING THE LOCAL GOVERNMENT
CODE; THUS, THE INSTANT EXPROPRIATION
PROCEEDING IS PREMATURE.
III
THE GRANTING OF THE EXPROPRIATION WOULD VIOLATE
SECTION 261 (V) OF THE OMNIBUS ELECTION CODE.
IV
PLAINTIFF CANNOT TAKE POSSESSION OF THE SUBJECT
PROPERTY BY MERELY DEPOSITING AN AMOUNT EQUAL TO
FIFTEEN PERCENT (15%) OF THE VALUE OF THE PROPERTY
BASED ON THE CURRENT TAX DECLARATION OF THE
SUBJECT PROPERTY.[4]

On May 7, 1996, the trial court issued an Order denying the Motion to Dismiss, [5] on the
ground that there is a genuine necessity to expropriate the property for the sports
and recreational activities of the residents of Pasig. As to the issue of just
compensation, the trial court held that the same is to be determined in accordance with
the Revised Rules of Court.
Petitioner filed a motion for reconsideration but it was denied by the trial court in its
Order of July 31, 1996. Forthwith, it appointed the City Assessor and City Treasurer of
Pasig City as commissioners to ascertain the just compensation. This prompted
petitioner to file with the Court of Appeals a special civil action for certiorari, docketed as
CA-G.R. SP No. 41860. On October 31, 1997, the Appellate Court dismissed the petition
for lack of merit. Petitioners Motion for Reconsideration was denied in a Resolution
dated November 20, 1998.
Hence, this petition anchored on the following grounds:

THE QUESTIONED DECISION DATED 31 OCTOBER 1997

(ATTACHMENT A) AND RESOLUTION DATED 20 NOVEMBER
1998 (ATTACHMENT B) ARE CONTRARY TO LAW, THE RULES
OF COURT AND JURISPRUDENCE CONSIDERING THAT:
I
A. THERE IS NO EVIDENCE TO PROVE THAT
THERE IS GENUINE NECESSITY FOR
THE TAKING OF THE PETITIONERS
PROPERTY.
B. THERE IS NO EVIDENCE TO PROVE THAT
THE PUBLIC USE REQUIREMENT FOR
THE EXERCISE OF THE POWER OF
EMINENT DOMAIN HAS BEEN COMPLIED
WITH.
C. THERE IS NO EVIDENCE TO PROVE THAT
RESPONDENT CITY OF PASIG HAS
COMPLIED WITH ALL CONDITIONS
PRECEDENT FOR THE EXERCISE OF
THE POWER OF EMINENT DOMAIN.
THE COURT A QUOS ORDER DATED 07 MAY 1996 AND 31
JULY 1996, WHICH WERE AFFIRMED BY THE COURT OF
APPEALS, EFFECTIVELY AMOUNT TO THE TAKING OF
PETITIONERS PROPERTY WITHOUT DUE PROCESS OF LAW:

II
THE COURT OF APPEALS GRAVELY ERRED IN
APPLYING
OF
RULE
ON
ACTIONABLE
DOCUMENTS TO THE DOCUMENTS ATTACHED
TO
RESPONDENT
CITY
OF
PASIGS COMPLAINT DATED 07 APRIL 1995 TO
JUSTIFY THE COURT A QUOS DENIAL OF
PETITIONERS RESPONSIVE PLEADING TO THE
COMPLAINT FOR EXPROPRIATION
(THE
MOTION TO DISMISS DATED 21 APRIL 1995).
III
THE COURT OF APPEALS GRAVELY ERRED IN
APPLYING THE RULE ON HYPOTHETICAL
ADMISSION OF FACTS ALLEGED IN A
COMPLAINT CONSIDERING THAT THE MOTION
TO DISMISS FILED BY PETITIONER IN THE
EXPROPRIATION CASE BELOW WAS THE

RESPONSIVE PLEADING REQUIRED TO BE

FILED UNDER THE THEN RULE 67 OF THE
RULES OF COURT AND NOT AN ORIDNARY
MOTION TO DISMISS UNDER RULE 16 OF THE
RULES OF COURT.

The foregoing arguments may be synthesized into two main issues one substantive and
one procedural. We will first address the procedural issue.
Petitioner filed her Motion to Dismiss the complaint for expropriation on April 25, 1995. It
was denied by the trial court on May 7, 1996. At that time, the rule on expropriation was
governed by Section 3, Rule 67 of the Revised Rules of Court which provides:
SEC. 3. Defenses and objections. Within the time specified in the
summons, each defendant, in lieu of an answer, shall present in a single
motion to dismiss or for other appropriate relief, all his objections and
defenses to the right of the plaintiff to take his property for the use or
purpose specified in the complaint. All such objections and defenses not
so presented are waived. A copy of the motion shall be served on the
plaintiffs attorney of record and filed with the court with proof of service.

The motion to dismiss contemplated in the above Rule clearly constitutes the responsive
pleading which takes the place of an answer to the complaint for expropriation. Such
motion is the pleading that puts in issue the right of the plaintiff to expropriate the
defendants property for the use specified in the complaint. All that the law requires is that
a copy of the said motion be served on plaintiffs attorney of record. It is the court that at
its convenience will set the case for trial after the filing of the said pleading.[6]
The Court of Appeals therefore erred in holding that the motion to dismiss filed by
petitioner hypothetically admitted the truth of the facts alleged in the complaint,
specifically that there is a genuine necessity to expropriate petitioners property for public
use. Pursuant to the above Rule, the motion is a responsive pleading joining the issues.
What the trial court should have done was to set the case for the reception of evidence
to determine whether there is indeed a genuine necessity for the taking of the property,
instead of summarily making a finding that the taking is for public use and appointing
commissioners to fix just compensation. This is especially so considering that the
purpose of the expropriation was squarely challenged and put in issue by petitioner in
her motion to dismiss.
Significantly, the above Rule allowing a defendant in an expropriation case to file a
motion to dismiss in lieu of an answer was amended by the 1997 Rules of Civil
Procedure, which took effect on July 1, 1997. Section 3, Rule 67 now expressly

mandates that any objection or defense to the taking of the property of a defendant must
be set forth in an answer.
The fact that the Court of Appeals rendered its Decision in CA-G.R. SP No. 41860 on
October 31, after the 1997 Rules of Civil Procedure took effect, is of no moment. It is
only fair that the Rule at the time petitioner filed her motion to dismiss should govern.
The new provision cannot be applied retroactively to her prejudice.
We now proceed to address the substantive issue.
In the early case of US v. Toribio,[7] this Court defined the power of eminent domain as
the right of a government to take and appropriate private property to public use,
whenever the public exigency requires it, which can be done only on condition of
providing a reasonable compensation therefor. It has also been described as the power
of the State or its instrumentalities to take private property for public use and is
inseparable from sovereignty and inherent in government.[8]
The power of eminent domain is lodged in the legislative branch of the government. It
delegates the exercise thereof to local government units, other public entities and public
utility corporations,[9] subject only to Constitutional limitations. Local governments have
no inherent power of eminent domain and may exercise it only when expressly
authorized by statute.[10] Section 19 of the Local Government Code of 1991 (Republic Act
No. 7160) prescribes the delegation by Congress of the power of eminent domain to
local government units and lays down the parameters for its exercise, thus:
SEC. 19. Eminent Domain. A local government unit may, through its chief
executive and acting pursuant to an ordinance, exercise the power of
eminent domain for public use, purpose or welfare for the benefit of the
poor and the landless, upon payment of just compensation, pursuant to
the provisions of the Constitution and pertinent laws: Provided, however,
That, the power of eminent domain may not be exercised unless a valid
and definite offer has been previously made to the owner and such offer
was not accepted: Provided, further, That, the local government unit may
immediately take possession of the property upon the filing of
expropriation proceedings and upon making a deposit with the proper
court of at least fifteen percent (15%) of the fair market value of the
property based on the current tax declaration of the property to be
expropriated: Provided, finally, That, the amount to be paid for
expropriated property shall be determined by the proper court, based on
the fair market value at the time of the taking of the property.
Judicial review of the exercise of eminent domain is limited to the following areas of
concern: (a) the adequacy of the compensation, (b) the necessity of the taking, and (c)
the public use character of the purpose of the taking.[11]

In this case, petitioner contends that respondent City of Pasig failed to establish a
genuine necessity which justifies the condemnation of her property. While she does not
dispute the intended public purpose, nonetheless, she insists that there must be a
genuine necessity for the proposed use and purposes. According to petitioner, there is
already an established sports development and recreational activity center at Rainforest
Park in Pasig City, fully operational and being utilized by its residents, including those
from Barangay Caniogan. Respondent does not dispute this. Evidently, there is no
genuine necessity to justify the expropriation.
The right to take private property for public purposes necessarily originates from the
necessity and the taking must be limited to such necessity. In City of Manila v. Chinese
Community of Manila,[12] we held that the very foundation of the right to exercise
eminent domain is a genuine necessity and that necessity must be of a public
character. Moreover, the ascertainment of the necessity must precede or accompany
and not follow, the taking of the land. In City of Manila v. Arellano Law College,[13] we
ruled that necessity within the rule that the particular property to be expropriated must be
necessary, does not mean an absolute but only a reasonable or practical necessity, such
as would combine the greatest benefit to the public with the least inconvenience and
expense to the condemning party and the property owner consistent with such benefit.
Applying this standard, we hold that respondent City of Pasig has failed to
establish that there is a genuine necessity to expropriate petitioners property. Our
scrutiny of the records shows that the Certification [14] issued by the Caniogan Barangay
Council dated November 20, 1994, the basis for the passage of Ordinance No. 42 s.
1993 authorizing the expropriation, indicates that the intended beneficiary is the
Melendres Compound Homeowners Association, a private, non-profit organization, not
the residents of Caniogan. It can be gleaned that the members of the said Association
are desirous of having their own private playground and recreational facility. Petitioners
lot is the nearest vacant space available. The purpose is, therefore, not clearly and
categorically public. The necessity has not been shown, especially considering that there
exists an alternative facility for sports development and community recreation in the
area, which is the Rainforest Park, available to all residents of Pasig City, including those
of Caniogan.
The right to own and possess property is one of the most cherished rights of
men. It is so fundamental that it has been written into organic law of every nation where
the rule of law prevails. Unless the requisite of genuine necessity for the expropriation of
ones property is clearly established, it shall be the duty of the courts to protect the rights
of individuals to their private property. Important as the power of eminent domain may
be, the inviolable sanctity which the Constitution attaches to the property of the individual
requires not only that the purpose for the taking of private property be specified. The
genuine necessity for the taking, which must be of a public character, must also be
shown to exist.

WHEREFORE, the petition for review is GRANTED. The challenged Decision

and Resolution of the Court of Appeals in CA-G.R. SP No. 41860 are REVERSED. The
complaint for expropriation filed before the trial court by respondent City of Pasig,
docketed as SCA No. 873, is ordered DISMISSED.

SO ORDERED.
ANGELINA SANDOVAL-GUTIERREZ
Associate Justice

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 72126 January 29, 1988
MUNICIPALITY OF MEYCAUAYAN, BULACAN, HON. ADRIANO D. DAEZ,
MUNICIPAL MAYOR, MEYCAUAYAN, BULACAN, petitioners,
vs.
INTERMEDIATE APPELLATE COURT and PHILIPPINE PIPES & MERCHANDIZING
CORPORATION,respondents.

GUTIERREZ, JR., J.:

This is a petition for review on certiorari of the resolution dated April 24,1985 by the
former Intermediate Appellate Court, now Court of Appeals, setting aside its earlier
decision dated January 10, 1985 and dismissing the special civil action for expropriation
filed by the petitioner.
In 1975, respondent Philippine Pipes and Merchandising Corporation filed with the Office
of the Municipal Mayor of Meycauayan, Bulacan, an application for a permit to fence a
parcel of land with a width of 26.8 meters and a length of 184.37 meters covered by
Transfer Certificates of Title Nos. 215165 and 37879. The fencing of said property was
allegedly to enable the storage of the respondent's heavy equipment and various
finished products such as large diameter steel pipes, pontoon pipes for ports, wharves,
and harbors, bridge components, pre-stressed girders and piles, large diameter concrete
pipes, and parts for low cost housing.

In the same year, the Municipal Council of Meycauayan, headed by then Mayor Celso R.
Legaspi, passed Resolution No. 258, Series of 1975, manifesting the intention to
expropriate the respondent's parcel of land covered by Transfer Certificate of Title No.
37879.
An opposition to the resolution was filed by the respondent with the Office of the
Provincial Governor, which, in turn, created a special committee of four members to
investigate the matter.
On March 10, 1976, the Special Committee recommended that the Provincial Board of
Bulacan disapprove or annul the resolution in question because there was no genuine
necessity for the Municipality of Meycauayan to expropriate the respondent's property for
use as a public road.
On the basis of this report, the Provincial Board of Bulacan passed Resolution No. 238,
Series of 1976, disapproving and annulling Resolution No. 258, Series of 1975, of the
Municipal Council of Meycauayan. The respondent, then, reiterated to the Office of the
Mayor its petition for the approval of the permit to fence the aforesaid parcels of land.
On October 21, 1983, however, the Municipal Council of Meycauayan, now headed by
Mayor Adriano D. Daez, passed Resolution No. 21, Series of 1983, for the purpose of
expropriating anew the respondent's land. The Provincial Board of Bulacan approved the
aforesaid resolution on January 25, 1984.
Thereafter, the petitioner, on February 14, 1984, filed with the Regional Trial Court of
Malolos, Bulacan, Branch VI, a special civil action for expropriation.
Upon deposit of the amount of P24,025.00, which is the market value of the land, with
the Philippine National Bank, the trial court on March 1, 1984 issued a writ of possession
in favor of the petitioner.
On August 27, 1984, the trial court issued an order declaring the taking of the property
as lawful and appointing the Provincial Assessor of Bulacan as court commissioner who
shall hold the hearing to ascertain the just compensation for the property.
The respondent went to the Intermediate Appellate Court on petition for review. On
January 10, 1985, the appellate court affirmed the trial court's decision. However, upon
motion for reconsideration by the respondent, the decision was re-examined and
reversed. The appellate court held that there is no genuine necessity to expropriate the
land for use as a public road as there were several other roads for the same purpose
and another more appropriate lot for the proposed public road. The court, taking into
consideration the location and size of the land, also opined that the land is more Ideal for
use as storage area for respondent's heavy equipment and finished products.
After its motion for reconsideration was denied, the petitioner went to this Court on
petition for review on certiorari on October 25, 1985, with the following arguments:
Petitioners most respectfully submit that respondent Court has decided a
question of substance not in accord with law or with applicable decisions
of this Honorable Supreme Court; that the judgment is based on a

misapprehension of facts and the conclusion is a finding grounded

entirely on speculation, surmises, and conjectures, because:
a. It concluded, that by dismissing the complaint for expropriation the
existence of legal and factual circumstance of grave abuse of discretion
amounting to lack of jurisdiction committed by the respondent Judge
without any shred of evidence at all contrary to the law on evidence;
b. It concluded, in its decision that respondent Philippine Pipes and
Merchandising Corporation has no need of the property sought to be
condemned on the use to which it is devoted as a private road but
allegedly for storage contrary to the allegations of respondent Philippine
Pipes and Merchandising Corporation itself;
c. It anchored its decision on factual situations obtaining a long, long time
ago without regard to the relatively present situation now obtaining.
(Rollo, pp. 8-9)
In refuting the petitioner's arguments, the private respondent contends that this Court
may only resolve questions of law and not questions of fact such as those which the
petitioner puts in issue in this case. The respondent further argues that this Court may
not also interfere with an action of the Court of Appeals which involves the exercise of
discretion.
We agree with the respondent.
The jurisdiction of this Court in cases brought to us from the Court of Appeals is limited
to the review of errors of law (Rizal Cement Co., Inc. v. Villareal, 135 SCRA 15, 24),
factual issues not being proper in certiorari proceedings (See Ygay et al. v. Hon.
Escareal et al., 135 SCRA 78, 82).
This Court reviews and rectifies the findings of fact of the Court of Appeals only under
certain established exceptions such as: (1) when the conclusion is a finding grounded
entirely on speculations, surmises and conjectures; (2) when the inference made is
manifestly mistaken, absurd and impossible; (3) when there is grave abuse of discretion;
(4) when the judgment is based on a misapprehension of facts; and (5) when the court,
in making its finding, went beyond the issues of the case and the same is contrary to the
admissions of both the appellant and the appellee (Moran, Jr. v. Court of Appeals, 133
SCRA 88).
None of the exceptions warranting non-application of the rule is present in this case. On
the contrary, we find that the appellate court's decision is supported by substantial
evidence.
The petitioner's purpose in expropriating the respondent's property is to convert the
same into a public road which would provide a connecting link between Malhacan Road
and Bulac Road in Valenzuela, Bulacan and thereby ease the traffic in the area of
vehicles coming from MacArthur Highway.

The records, however, reveals that there are other connecting links between the
aforementioned roads. The petitioner itself admits that there are four such cross roads in
existence. The respondent court stated that with the proposed road, there would be
seven.
Appreciating the evidence presented before it, with particular emphasis on the Special
Committee's report dated March 10, 1976, the Court of Appeals declared:
xxx xxx xxx
FACTS ESTABLISHED ON OCULAR INSPECTION
In the ocular inspection, the following facts came into the limelight:
(1) The property in question of the Philippine Pipes and Merchandazing
Corporation intended to be expropriated by the Municipality of
Meycauayan is embraced under Transfer Certificate of Title No. 37879
and is a private road of the company used in the conduct and operation of
its business, with theinhabitation in nearby premises tolerated to pass the
same. It extends from Bulac Road to the south, to Malhacan Road on the
north, with a width of about 6 to 7 meters, more or less.
(2) Adjoining this private road on the eastern side, is a vacant property
also belonging to the Philippine Pipes and Merchandising Corporation
and extending also from Bulac Road to Malhacan Road, with a high wall
along the property line on the east side thereof serving as a fence.
(3) Opposite the private road, after crossing Bulac Road, is the gate of the
factory of the Philippine Pipes and Merchandising Corporation.
(4) From the private road of the firm on the eastern direction about 30 to
40 meters distance are subdivision roads of an existing subdivision with a
width of 6 to 7 meters, more or less, running parallel to the said private
road of the firm and likewise extending from Bulac Road to Malhacan
Road. Whether said subdivision roads had already been donated to the
municipality is not known.
(5) On the western side of the private road is a vacant lot with an area of
l6,071 square meters offered for sale by its owner extending also from
Bulac Road to Malhacan Road.
(6) Bulac road, a municipal road with a width of about 6 to 7 meters and
all the nearby subdivision roads are obviously very poorly developed and
maintained, and are in dire need of repair. Like the Malhacan Road, Bulac
road extends from the McArthur Highway with exit to North Diversion
Road.
xxx xxx xxx

The Sketch Plan (Rollo, p. 26 or p. 97) clearly and conclusively shows

that petitioner does not need this strip of land as a private road. The
Sketch Plan clearly shows that petitioner's factory site is adjacent to Bulac
Road which has a width of about seven meters, more or less. Petitioner
can use Bulac Road in reaching McArthur Highway on the west or in
reaching the Manila North Expressway on the east for the purpose of
transporting its products. Petitioner does not need to go to Malhacan
Road via this so-called private road before going to McArthur Highway or
to the Manila North Expressway. Why should petitioner go first to
Malhacan Road via this so called "private road" before going to McArthur
Highway or to the Manila North Expressway when taking the Bulac Road
in going to McArthur Highway or to the Manila North Expressway is more
direct, nearer and more advantageous. Hence, it is beyond doubt that
petitioner acquired this strip of land for the storage of its heavy
equipments and various finished products and for growth and expansion
and never to use it as a private road. This is the very reason why
petitioner filed an application with the Office of the Municipal Mayor of
Meycauayan, Bulacan to fence with hollow blocks this strip of land.
Third, We will determine whether there is a genuine necessity to
expropriate this strip of land for use as a public road.
We hereby quote a relevant part of the Special Committee's Report dated
March 10, 1976, which is as follows:
OBSERVATION OF COMMITTEE
From the foregoing facts, it appears obvious to this Special Committee
that there is no genuine necessity for the Municipality of' Meycauayan to
expropriate the aforesaid property of the Philippine Pipes and
Merchandising Corporation for use as a public road. Considering that in
the vicinity there are other available road and vacant lot offered for sale
situated similarly as the lot in question and lying Idle, unlike the lot sought
to be expropriated which was found by the Committee to be badly needed
by the company as a site for its heavy equipment after it is fenced
together with the adjoining vacant lot, the justification to condemn the
same does not appear to be very imperative and necessary and would
only cause unjustified damage to the firm. The desire of the Municipality
of Meycauayan to build a public road to decongest the volume of traffic
can be fully and better attained by acquiring the other available roads in
the vicinity maybe at lesser costs without causing harm to an
establishment doing legitimate business therein. Or, the municipality may
seek to expropriate a portion of the vacant lot also in the vicinity offered
for sale for a wider public road to attain decongest (sic) of traffic because
as observed by the Committee, the lot of the Corporation sought to be
taken will only accommodate a one-way traffic lane and therefore, will not
suffice to improve and decongest the flow of traffic and pedestrians in the
Malhacan area. ...
xxx xxx xxx

It must be noted that this strip of land covered by Transfer Certificates of

Titles Nos. 215165 and 37879 were acquired by petitioner from Dr.
Villacorta. The lot for sale and lying Idle with an area of 16,071 square
meter which is adjacent and on the western side of the aforesaid strip of
land and extends likewise from Bulac Road to Malhacan Road belongs
also to Dr. Villacorta. This lot for sale and lying Idle is most Ideal for use
as a public road because it is more than three (3) times wider that the
said strip of land.
xxx xxx xxx
xxx xxx xxx
Since there is another lot ready for sale and lying Idle, adjacent and on
the western side of the strip of land, and extending also from Malhacan
Road to Bulac Road and most Ideal for a public road because it is very
much wider than the lot sought to be expropriated, it seems that it is more
just, fair, and reasonable if this lot is the one to be expropriated. (Rollo,
pp. 22-26)
The petitioner objects to the appellate court's findings contending that they were based
on facts obtaining long before the present action to expropriate took place. We note,
however, that there is no evidence on record which shows a change in the factual
circumstances of the case. There is no showing that some of the six other available
cross roads have been closed or that the private roads in the subdivision may not be
used for municipal purposes. What is more likely is that these roads have already been
turned over to the government. The petitioner alleges that surely the environmental
progress during the span of seven years between the first and second attempts to
expropriate has brought about a change in the facts of the case. This allegation does not
merit consideration absent a showing of concrete evidence attesting to it.
There is no question here as to the right of the State to take private property for public
use upon payment of just compensation. What is questioned is the existence of a
genuine necessity therefor.
As early as City of Manila v. Chinese Community of Manila (40 Phil. 349) this Court held
that the foundation of the right to exercise the power of eminent domain is genuine
necessity and that necessity must be of a public character. Condemnation of private
property is justified only if it is for the public good and there is a genuine necessity of a
public character. Consequently, the courts have the power to inquire into the legality of
the exercise of the right of eminent domain and to determine whether there is a genuine
necessity therefor (Republic v. La Orden de PP. Benedictos de Filipinas, 1 SCRA 646;
J.M. Tuason & Co., Inc. v. Land Tenure Administration, 31 SCRA 413).
In the recent case of De Knecht v. Bautista, (100 SCRA 660) this court further ruled that
the government may not capriciously choose what private property should be taken.
Citing the case of J.M. Tuason & Co., Inc. v. Land Tenure Administration (supra), the
Court held:

... With due recognition then of the power of Congress to designate the
particular property to be taken and how much thereof may be condemned
in the exercise of the power of expropriation, it is still a judicial question
whether in the exercise of such competence, the party adversely affected
is the victim of partiality and prejudice. That the equal protection clause
will not allow. (At p. 436)
There is absolutely no showing in the petition why the more appropriate lot for the
proposed road which was offered for sale has not been the subject of the petitioner's
attempt to expropriate assuming there is a real need for another connecting road.
WHEREFORE, the petition is hereby DISMISSED for lack of merit. The questioned
resolution of the respondent court is AFFIRMED.
SO ORDERED.
Fernan (Chairman), Feliciano, Bidin and Cortes, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 107916 February 20, 1997

PERCIVAL MODAY, ZOTICO MODAY (deceased) and LEONORA
MODAY, petitioners,
vs.
COURT OF APPEALS, JUDGE EVANGELINE S. YUIPCO OF BRANCH 6, REGIONAL
TRIAL COURT, AGUSAN DEL SUR AND MUNICIPALITY OF
BUNAWAN, respondents.

ROMERO, J.:
The main issue presented in this case is whether a municipality may expropriate private
property by virtue of a municipal resolution which was disapproved by the Sangguniang
Panlalawigan. Petitioner seeks the reversal of the Court of Appeals decision and
resolution, promulgated on July 15, 1992 and October 22, 1992 respectively, 1 and a
declaration that Municipal Resolution No. 43-89 of the Bunawan Sangguniang Bayan is
null and void.
On July 23, 1989, the Sangguniang Bayan of the Municipality of Bunawan in Agusan del
Sur passed Resolution No. 43-89, "Authorizing the Municipal Mayor to Initiate the

Petition for Expropriation of a One (1) Hectare Portion of Lot No. 6138-Pls-4 Along the
National Highway Owned by Percival Moday for the Site of Bunawan Farmers Center
and Other Government Sports Facilities." 2
In due time, Resolution No. 43-89 was approved by then Municipal Mayor Anuncio C.
Bustillo and transmitted to the Sangguniang Panlalawigan for its approval. On
September 11, 1989, the Sangguniang Panlalawigan disapproved said Resolution and
returned it with the comment that "expropriation is unnecessary considering that there
are still available lots in Bunawan for the establishment of the government center." 3
The Municipality of Bunawan, herein public respondent, subsequently filed a petition for
Eminent Domain against petitioner Percival Moday before the Regional Trial Court at
Prosperidad, Agusan del Sur. 4 The complaint was later amended to include the
registered owners, Percival Moday's parents, Zotico and Leonora Moday, as party
defendants.
On March 6, 1991, public respondent municipality filed a Motion to Take or Enter Upon
the Possession of Subject Matter of This Case stating that it had already deposited with
the municipal treasurer the necessary amount in accordance with Section 2, Rule 67 of
the Revised Rules of Court and that it would be in the government's best interest for
public respondent to be allowed to take possession of the property.
Despite petitioners' opposition and after a hearing on the merits, the Regional Trial Court
granted respondent municipality's motion to take possession of the land. The lower court
held that the Sangguniang Panlalawigan's failure to declare the resolution invalid leaves
it effective. It added that the duty of the Sangguniang Panlalawigan is merely to review
the ordinances and resolutions passed by the Sangguniang Bayan under Section 208
(1) of B.P. Blg. 337, old Local Government Code and that the exercise of eminent
domain is not one of the two acts enumerated in Section 19 thereof requiring the
approval of the Sangguniang Panlalawigan. 5 The dispositive portion of the lower court's
Order dated July 2, 1991 reads:
WHEREFORE, it appearing that the amount of P632.39 had been
deposited as per Official Receipt No. 5379647 on December 12, 1989
which this Court now determines as the provisional value of the land, the
Motion to Take or Enter Upon the Possession of the Property filed by
petitioner through counsel is hereby GRANTED. The Sheriff of this Court
is ordered to forthwith place the plaintiff in possession of the property
involved.
Let the hearing be set on August 9, 1991 at 8:30 o'clock in the morning for
the purpose of ascertaining the just compensation or fair market value of
the property sought to be taken, with notice to all the parties concerned.
SO ORDERED. 6
Petitioners' motion for reconsideration was denied by the trial court on October 31, 1991.
Petitioners elevated the case in a petition for certiorari alleging grave abuse of discretion
on the part of the trial court, but the same was dismissed by respondent appellate court

on July 15, 1992. 7 The Court of Appeals held that the public purpose for the
expropriation is clear from Resolution No. 43-89 and that since the Sangguniang
Panlalawigan of Agusan del Sur did not declare Resolution No. 43-89 invalid,
expropriation of petitioners' property could proceed.
Respondent appellate court also denied petitioners' motion for reconsideration on
October 22, 1992. 8
Meanwhile, the Municipality of Bunawan had erected three buildings on the subject
property: the Association of Barangay Councils (ABC) Hall, the Municipal Motorpool,
both wooden structures, and the Bunawan Municipal Gymnasium, which is made of
concrete.
In the instant petition for review filed on November 23, 1992, petitioner seeks the
reversal of the decision and resolution of the Court of Appeals and a declaration that
Resolution No. 43-89 of the Municipality of Bunawan is null and void.
On December 8, 1993, the Court issued a temporary restraining order enjoining and
restraining public respondent Judge Evangeline Yuipco from enforcing her July 2, 1991
Order and respondent municipality from using and occupying all the buildings
constructed and from further constructing any building on the land subject of this
petition.9
Acting on petitioners' Omnibus Motion for Enforcement of Restraining Order and for
Contempt, the Court issued a Resolution on March 15, 1995, citing incumbent municipal
mayor Anuncio C. Bustillo for contempt, ordering him to pay the fine and to demolish the
"blocktiendas" which were built in violation of the restraining order. 10
Former Mayor Anuncio C. Bustillo paid the fine and manifested that he lost in the May 8,
1995 election. 11 The incumbent Mayor Leonardo Barrios, filed a Manifestation, Motion to
Resolve "Urgent Motion for Immediate Dissolution of the Temporary Restraining Order"
and Memorandum on June 11, 1996 for the Municipality of Bunawan. 12
Petitioners contend that the Court of Appeals erred in upholding the legality of the
condemnation proceedings initiated by the municipality. According to petitioners, the
expropriation was politically motivated and Resolution No. 43-89 was correctly
disapproved by the Sangguniang Panlalawigan, there being other municipal properties
available for the purpose. Petitioners also pray that the former Mayor Anuncio C. Bustillo
be ordered to pay damages for insisting on the enforcement of a void municipal
resolution.
The Court of Appeals declared that the Sangguniang Panlalawigan's reason for
disapproving the resolution "could be baseless, because it failed to point out which and
where are those available lots.'" Respondent court also concluded that since the
Sangguniang Panlalawigan did not declare the municipal board's resolution as invalid,
expropriation of petitioners' property could
proceed. 13
The Court finds no merit in the petition and affirms the decision of the Court of Appeals.

Eminent domain, the power which the Municipality of Bunawan exercised in the instant
case, is a fundamental State power that is inseparable from sovereignty. 14 It is
government's right to appropriate, in the nature of a compulsory sale to the State, private
property for public use or purpose. 15 Inherently possessed by the national legislature,
the power of eminent domain may be validly delegated to local governments, other
public entities and public utilities. 16 For the taking of private property by the government
to be valid, the taking must be for public use and there must be just compensation. 17
The Municipality of Bunawan's power to exercise the right of eminent domain is not
disputed as it is expressly provided for in Batas Pambansa Blg. 337, the local
Government Code 18 in force at the time expropriation proceedings were initiated.
Section 9 of said law states:
Sec. 9. Eminent Domain. A local government unit may, through its
head and acting pursuant to a resolution of its sanggunian, exercise the
right of eminent domain and institute condemnation proceedings for
public use or purpose.
What petitioners question is the lack of authority of the municipality to exercise this right
since the Sangguniang Panlalawigan disapproved Resolution No. 43-89.
Section 153 of B.P. Blg. 337 provides:
Sec. 153. Sangguniang Panlalawigan Review. (1) Within thirty days
after receiving copies of approved ordinances, resolutions and executive
orders promulgated by the municipal mayor, the sangguniang
panlalawigan shall examine the documents or transmit them to the
provincial attorney, or if there be none, to the provincial fiscal, who shall
examine them promptly and inform the sangguniang panlalawigan in
writing of any defect or impropriety which he may discover therein and
make such comments or recommendations as shall appear to him proper.
(2) If the sangguniang panlalawigan shall find that any municipal
ordinance, resolution or executive order is beyond the power conferred
upon the sangguniang bayan or the mayor, it shall declare such
ordinance, resolution or executive order invalid in whole or in part,
entering its actions upon the minutes and advising the proper municipal
authorities thereof. The effect of such an action shall be to annul the
ordinance, resolution or executive order in question in whole or in part.
The action of the sangguniang panlalawigan shall be final.
xxx xxx xxx (Emphasis supplied.)
The Sangguniang Panlalawigan's disapproval of Municipal Resolution No. 43-89 is an
infirm action which does not render said resolution null and void. The law, as expressed
in Section 153 of B.P. Blg. 337, grants the Sangguniang Panlalawigan the power to
declare a municipal resolution invalid on the sole ground that it is beyond the power of
the Sangguniang Bayan or the Mayor to issue. Although pertaining to a similar provision
of law but different factual milieu then obtaining, the Court's pronouncements in Velazco

v. Blas, 19 where we cited significant early jurisprudence, are applicable to the case at
bar.
The only ground upon which a provincial board may declare any
municipal resolution, ordinance, or order invalid is when such resolution,
ordinance, or order is "beyond the powers conferred upon the council or
president making the same." Absolutely no other ground is recognized by
the law. A strictly legal question is before the provincial board in its
consideration of a municipal resolution, ordinance, or order. The provincial
(board's) disapproval of any resolution, ordinance, or order must be
premised specifically upon the fact that such resolution, ordinance, or
order is outside the scope of the legal powers conferred by law. If a
provincial board passes these limits, it usurps the legislative function of
the municipal council or president. Such has been the consistent course
of executive authority. 20
Thus, the Sangguniang Panlalawigan was without the authority to disapprove Municipal
Resolution No. 43-89 for the Municipality of Bunawan clearly has the power to exercise
the right of eminent domain and its Sangguniang Bayan the capacity to promulgate said
resolution, pursuant to the earlier-quoted Section 9 of B.P. Blg. 337. Perforce, it follows
that Resolution No. 43-89 is valid and binding and could be used as lawful authority to
petition for the condemnation of petitioners' property.
As regards the accusation of political oppression, it is alleged that Percival Moday
incurred the ire of then Mayor Anuncio C. Bustillo when he refused to support the latter's
candidacy for mayor in previous elections. Petitioners claim that then incumbent Mayor
C. Bustillo used the expropriation to retaliate by expropriating their land even if there
were other properties belonging to the municipality and available for the purpose.
Specifically, they allege that the municipality owns a vacant seven-hectare property
adjacent to petitioners' land, evidenced by a sketch plan. 21
The limitations on the power of eminent domain are that the use must be public,
compensation must be made and due process of law must be
observed. 22 The Supreme Court, taking cognizance of such issues as the adequacy of
compensation, necessity of the taking and the public use character or the purpose of the
taking, 23 has ruled that the necessity of exercising eminent domain must be genuine and
of a public character. 24 Government may not capriciously choose what private property
should be taken.
After a careful study of the records of the case, however, we find no evidentiary support
for petitioners' allegations. The uncertified photocopy of the sketch plan does not
conclusively prove that the municipality does own vacant land adjacent to petitioners'
property suited to the purpose of the expropriation. In the questioned decision,
respondent appellate court similarly held that the pleadings and documents on record
have not pointed out any of respondent municipality's "other available properties
available for the same purpose." 25 The accusations of political reprisal are likewise
unsupported by competent evidence. Consequently, the Court holds that petitioners'
demand that the former municipal mayor be personally liable for damages is without
basis.

WHEREFORE, the instant petition is hereby DENIED. The questioned Decision and
Resolution of the Court of Appeals in the case of "Percival Moday." et al. v. Municipality
of Bunawan, et al." (CA G.R. SP No. 26712) are AFFIRMED. The Temporary Restraining
Order issued by the Court on December 8, 1993 is LIFTED.
SO ORDERED.
FIRST DIVISION

[G.R. No. 127820. July 20, 1998]

MUNICIPALITY
OF
PARAAQUE, petitioner,
CORPORATION, respondent.

vs. V.M.

REALTY

DECISION
PANGANIBAN, J.:
A local government unit (LGU), like the Municipality of Paraaque, cannot authorize
an expropriation of private property through a mere resolution of its lawmaking body. The
Local Government Code expressly and clearly requires an ordinance or a local law for
the purpose. A resolution that merely expresses the sentiment or opinion of the
Municipal Council will not suffice. On the other hand, the principle of res judicata does
not bar subsequent proceedings for the expropriation of the same property when all the
legal requirements for its valid exercise are complied with.

Statement of the Case

These principles are applied by this Court in resolving this petition for review
on certiorari of the July 22, 1996 Decision[1] of the Court of Appeals[2] in CA GR CV No.
48048, which affirmed in toto[3]the Regional Trial Courts August 9, 1994 Resolution.
[4]
The trial court dismissed the expropriation suit as follows:
The right of the plaintiff to exercise the power of eminent domain is not
disputed. However, such right may be exercised only pursuant to an Ordinance (Sec. 19,
R.A. No. 7160). In the instant case, there is no such ordinance passed by the Municipal
Council of Paraaque enabling the Municipality, thru its Chief Executive, to exercise the
power of eminent domain. The complaint, therefore, states no cause of action.
Assuming that plaintiff has a cause of action, the same is barred by a prior judgment. On
September 29, 1987, the plaintiff filed a complaint for expropriation involving the same
parcels of land which was docketed as Civil Case No. 17939 of this Court (page 26,
record). Said case was dismissed with prejudice on May 18, 1988 (page 39, record). The
order of dismissal was not appealed, hence, the same became final. The plaintiff can not
be allowed to pursue the present action without violating the principle of [r]es

[j]udicata. While defendant in Civil Case No. 17939 was Limpan Investment Corporation,
the doctrine of res judicata still applies because the judgment in said case (C.C. No.
17939) is conclusive between the parties and their successors-in-interest (Vda. de
Buncio vs. Estate of the late Anita de Leon). The herein defendant is the successor-ininterest of Limpan Investment Corporation as shown by the Deed of Assignment
Exchange executed on June 13, 1990.
WHEREFORE, defendants motion for reconsideration is hereby granted. The order
dated February 4, 1994 is vacated and set aside.
This case is hereby dismissed. No pronouncement as to costs.
SO ORDERED.[5]

Factual Antecedents
Pursuant to Sangguniang Bayan Resolution No. 93-95, Series of 1993, [6] the
Municipality of Paraaque filed on September 20, 1993, a Complaint for
expropriation[7] against Private RespondentV.M. Realty Corporation over two parcels of
land (Lots 2-A-2 and 2-B-1 of Subdivision Plan Psd-17917), with a combined area of
about 10,000 square meters, located at Wakas, San Dionisio, Paraaque, Metro Manila,
and covered by Torrens Certificate of Title No. 48700. Allegedly, the complaint was filed
for the purpose of alleviating the living conditions of the underprivileged by providing
homes for the homeless through a socialized housing project. [8] Parenthetically, it was
also for this stated purpose that petitioner, pursuant to its Sangguniang
Bayan Resolution No. 577, Series of 1991,[9] previously made an offer to enter into a
negotiated sale of the property with private respondent, which the latter did not accept.[10]
Finding the Complaint sufficient in form and substance, the Regional Trial Court of
Makati, Branch 134, issued an Order dated January 10, 1994, [11] giving it due
course. Acting on petitioners motion, said court issued an Order dated February 4, 1994,
[12]
authorizing petitioner to take possession of the subject property upon deposit with its
clerk of court of an amount equivalent to 15 percent of its fair market value based on its
current tax declaration.
On February 21, 1994, private respondent filed its Answer containing affirmative
defenses and a counterclaim,[13] alleging in the main that (a) the complaint failed to state
a cause of action because it was filed pursuant to a resolution and not to an ordinance
as required by RA 7160 (the Local Government Code); and (b) the cause of action, if
any, was barred by a prior judgment or res judicata. On private respondents motion, its
Answer was treated as a motion to dismiss. [14] On March 24, 1994,[15] petitioner filed its
opposition, stressing that the trial courts Order dated February 4, 1994 was in accord
with Section 19 of RA 7160, and that the principle of res judicata was not applicable.
Thereafter, the trial court issued its August 9, 1994 Resolution [16] nullifying its
February 4, 1994 Order and dismissing the case. Petitioners motions for reconsideration
and transfer of venue were denied by the trial court in a Resolution dated December 2,
1994.[17] Petitioner then appealed to Respondent Court, raising the following issues:

1. Whether or not the Resolution of the Paraaque Municipal Council No. 93-95,
Series of 1993 is a substantial compliance of the statutory requirement of
Section 19, R.A. 7180 [sic] in the exercise of the power of eminent
domain by the plaintiff-appellant.
2. Whether or not the complaint in this case states no cause of action.
3. Whether or not the strict adherence to the literal observance to the rule of
procedure resulted in technicality standing in the way of substantial
justice.
4. Whether or not the principle of res judicata is applicable to the present case.[18]
As previously mentioned, the Court of Appeals affirmed in toto the trial courts
Decision. Respondent Court, in its assailed Resolution promulgated on January 8, 1997,
[19]
denied petitioners Motion for Reconsideration for lack of merit.
Hence, this appeal.[20]

The Issues
Before this Court, petitioner posits two issues, viz.:
1. A resolution duly approved by the municipal council has the same force and effect of
an ordinance and will not deprive an expropriation case of a valid cause of action.
2. The principle of res judicata as a ground for dismissal of case is not applicable when
public interest is primarily involved.[21]

The Courts Ruling

The petition is not meritorious.

First Issue:

Resolution Different from an Ordinance

Petitioner contends that a resolution approved by the municipal council for the
purpose of initiating an expropriation case substantially complies with the requirements
of the law[22] because the terms ordinance and resolution are synonymous for the
purpose of bestowing authority [on] the local government unit through its chief executive
to initiate the expropriation proceedings in court in the exercise of the power of eminent
domain.[23] Petitioner seeks to bolster this contention by citing Article 36, Rule VI of the

Rules and Regulations Implementing the Local Government Code, which provides: If the
LGU fails to acquire a private property for public use, purpose, or welfare through
purchase, the LGU may expropriate said property through a resolution of
the Sanggunian authorizing its chief executive to initiate expropriation proceedings.
[24]
(Italics supplied.)
The Court disagrees. The power of eminent domain is lodged in the legislative
branch of government, which may delegate the exercise thereof to LGUs, other public
entities and public utilities.[25]An LGU may therefore exercise the power to expropriate
private property only when authorized by Congress and subject to the latters control and
restraints, imposed through the law conferring the power or in other legislations. [26] In this
case, Section 19 of RA 7160, which delegates to LGUs the power of eminent domain,
also lays down the parameters for its exercise. It provides as follows:
Section 19. Eminent Domain. A local government unit may, through its chief executive
and acting pursuant to an ordinance, exercise the power of eminent domain for public
use, or purpose, or welfare for the benefit of the poor and the landless, upon payment of
just compensation, pursuant to the provisions of the Constitution and pertinent
laws: Provided, however, That the power of eminent domain may not be exercised
unless a valid and definite offer has been previously made to the owner, and such offer
was not accepted: Provided, further, That the local government unit may immediately
take possession of the property upon the filing of the expropriation proceedings and
upon making a deposit with the proper court of at least fifteen percent (15%) of the fair
market value of the property based on the current tax declaration of the property to be
expropriated:Provided, finally, That, the amount to be paid for the expropriated property
shall be determined by the proper court, based on the fair market value at the time of the
taking of the property. (Emphasis supplied)
Thus, the following essential requisites must concur before an LGU can exercise the
power of eminent domain:
1. An ordinance is enacted by the local legislative council authorizing the local
chief executive, in behalf of the LGU, to exercise the power of eminent
domain or pursue expropriation proceedings over a particular private
property.
2. The power of eminent domain is exercised for public use, purpose or welfare,
or for the benefit of the poor and the landless.
3. There is payment of just compensation, as required under Section 9, Article
III of the Constitution, and other pertinent laws.
4. A valid and definite offer has been previously made to the owner of the
property sought to be expropriated, but said offer was not accepted.[27]
In the case at bar, the local chief executive sought to exercise the power of eminent
domain pursuant to a resolution of the municipal council. Thus, there was no compliance
with the first requisite that the mayor be authorized through an ordinance. Petitioner
cites Camarines Sur vs. Court of Appeals[28] to show that a resolution may suffice to
support the exercise of eminent domain by an LGU. [29] This case, however, is not in point
because the applicable law at that time was BP 337,[30] the previous Local Government
Code, which had provided that a mere resolution would enable an LGU to exercise
eminent domain. In contrast, RA 7160,[31] the present Local Government Code which was

already in force when the Complaint for expropriation was filed, explicitly required an
ordinance for this purpose.
We are not convinced by petitioners insistence that the terms resolution and
ordinance are synonymous. A municipal ordinance is different from a resolution. An
ordinance is a law, but a resolution is merely a declaration of the sentiment or opinion of
a lawmaking body on a specific matter.[32] An ordinance possesses a general and
permanent character, but a resolution is temporary in nature.Additionally, the two are
enacted differently -- a third reading is necessary for an ordinance, but not for a
resolution, unless decided otherwise by a majority of all the Sanggunian members.[33]
If Congress intended to allow LGUs to exercise eminent domain through a mere
resolution, it would have simply adopted the language of the previous Local Government
Code. But Congress did not. In a clear divergence from the previous Local Government
Code, Section 19 of RA 7160 categorically requires that the local chief executive act
pursuant to an ordinance. Indeed, [l]egislative intent is determined principally from the
language of a statute. Where the language of a statute is clear and unambiguous, the
law is applied according to its express terms, and interpretation would be resorted to
only where a literal interpretation would be either impossible or absurd or would lead to
an injustice.[34] In the instant case, there is no reason to depart from this rule, since the
law requiring an ordinance is not at all impossible, absurd, or unjust.
Moreover, the power of eminent domain necessarily involves a derogation of a
fundamental or private right of the people. [35] Accordingly, the manifest change in the
legislative language -- from resolution under BP 337 to ordinance under RA 7160 -demands a strict construction. No species of property is held by individuals with greater
tenacity, and is guarded by the Constitution and laws more sedulously, than the right to
the freehold of inhabitants. When the legislature interferes with that right and, for greater
public purposes, appropriates the land of an individual without his consent, the plain
meaning of the law should not be enlarged by doubtful interpretation.[36]
Petitioner relies on Article 36, Rule VI of the Implementing Rules, which requires
only a resolution to authorize an LGU to exercise eminent domain. This is clearly
misplaced, because Section 19 of RA 7160, the law itself, surely prevails over said rule
which merely seeks to implement it. [37] It is axiomatic that the clear letter of the law is
controlling and cannot be amended by a mere administrative rule issued for its
implementation. Besides, what the discrepancy seems to indicate is a mere oversight in
the wording of the implementing rules, since Article 32, Rule VI thereof, also requires
that, in exercising the power of eminent domain, the chief executive of the LGU must act
pursuant to an ordinance.
In this ruling, the Court does not diminish the policy embodied in Section 2, Article X
of the Constitution, which provides that territorial and political subdivisions shall enjoy
local autonomy. It merely upholds the law as worded in RA 7160. We stress that an LGU
is created by law and all its powers and rights are sourced therefrom. It has therefore no
power to amend or act beyond the authority given and the limitations imposed on it by
law. Strictly speaking, the power of eminent domain delegated to an LGU is in reality not
eminent but inferior domain, since it must conform to the limits imposed by the
delegation, and thus partakes only of a share in eminent domain. [38] Indeed, the national
legislature is still the principal of the local government units, which cannot defy its will or
modify or violate it.[39]

Complaint Does Not State a Cause of Action

In its Brief filed before Respondent Court, petitioner argues that its Sanguniang
Bayan passed an ordinance on October 11, 1994 which reiterated its Resolution No. 9335, Series of 1993, and ratified all the acts of its mayor regarding the subject
expropriation.[40]
This argument is bereft of merit. In the first place, petitioner merely alleged the
existence of such an ordinance, but it did not present any certified true copy thereof. In
the second place, petitioner did not raise this point before this Court. In fact, it was
mentioned by private respondent, and only in passing.[41] In any event, this allegation
does not cure the inherent defect of petitioners Complaint for expropriation filed on
September 23, 1993. It is hornbook doctrine that:
x x x in a motion to dismiss based on the ground that the complaint fails to state a cause
of action, the question submitted before the court for determination is the sufficiency of
the allegations in the complaint itself.Whether those allegations are true or not is beside
the point, for their truth is hypothetically admitted by the motion. The issue rather is:
admitting them to be true, may the court render a valid judgment in accordance with the
prayer of the complaint?[42]
The fact that there is no cause of action is evident from the face of the Complaint for
expropriation which was based on a mere resolution. The absence of an ordinance
authorizing the same is equivalent to lack of cause of action. Consequently, the Court of
Appeals committed no reversible error in affirming the trial courts Decision which
dismissed the expropriation suit.

Second Issue:

Eminent Domain Not Barred by Res Judicata

As correctly found by the Court of Appeals [43] and the trial court,[44] all the requisites
for the application of res judicata are present in this case. There is a previous final
judgment on the merits in a prior expropriation case involving identical interests, subject
matter and cause of action, which has been rendered by a court having jurisdiction over
it.
Be that as it may, the Court holds that the principle of res judicata, which finds
application in generally all cases and proceedings,[45] cannot bar the right of the State or
its agent to expropriate private property. The very nature of eminent domain, as an
inherent power of the State, dictates that the right to exercise the power be absolute and
unfettered even by a prior judgment or res judicata. The scope of eminent domain is
plenary and, like police power, can reach every form of property which the State might
need for public use.[46] All separate interests of individuals in property are held of the
government under this tacit agreement or implied reservation. Notwithstanding the grant
to individuals, the eminent domain, the highest and most exact idea of property, remains
in the government, or in the aggregate body of the people in their sovereign capacity;

and they have the right to resume the possession of the property whenever the public
interest requires it.[47] Thus, the State or its authorized agent cannot be forever barred
from exercising said right by reason alone of previous non-compliance with any legal
requirement.
While the principle of res judicata does not denigrate the right of the State to
exercise eminent domain, it does apply to specific issues decided in a previous
case. For example, a final judgment dismissing an expropriation suit on the ground that
there was no prior offer precludes another suit raising the same issue; it cannot,
however, bar the State or its agent from thereafter complying with this requirement, as
prescribed by law, and subsequently exercising its power of eminent domain over the
same property.[48] By the same token, our ruling that petitioner cannot exercise its
delegated power of eminent domain through a mere resolution will not bar it from
reinstituting similar proceedings, once the said legal requirement and, for that
matter, all others are properly complied with. Parenthetically and by parity of reasoning,
the same is also true of the principle of law of the case. In Republic vs De Knecht,[49] the
Court ruled that the power of the State or its agent to exercise eminent domain is not
diminished by the mere fact that a prior final judgment over the property to be
expropriated has become the law of the case as to the parties. The State or its
authorized agent may still subsequently exercise its right to expropriate the same
property, once all legal requirements are complied with. To rule otherwise will not only
improperly diminish the power of eminent domain, but also clearly defeat social justice.
WHEREFORE, the petition is hereby DENIED without prejudice to petitioners proper
exercise of its power of eminent domain over subject property. Costs against petitioner.
SO ORDERED.
Davide, Jr., (Chairman), Bellosillo, Vitug, and Quisumbing, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
BARANGAY SINDALAN, SAN G.R. No. 150640
FERNANDO, PAMPANGA,
rep. by BARANGAY CAPTAIN
ISMAEL GUTIERREZ, Present:
Petitioner,
QUISUMBING, J., Chairperson,
CARPIO,
- versus - CARPIO MORALES,
TINGA, and
VELASCO, JR., JJ.
COURT OF APPEALS, JOSE
MAGTOTO III, and PATRICIA Promulgated:
SINDAYAN,
Respondents. March 22, 2007

x-----------------------------------------------------------------------------------------x
DECISION
VELASCO, JR., J.:
Expropriation, if misused or abused, would trench on the property rights of
individuals without due process of law.
The Case
For review before the Court in a petition for certiorari under Rule 45 are the May
30, 2001 Decision[1] and October 26, 2001 Resolution[2] of the Court of Appeals (CA),
reversing and setting aside the August 2, 1990 Order [3] of the San Fernando, Pampanga
Regional Trial Court (RTC), Branch 43. The CA Resolution denied petitioners Motion for
Reconsideration of the May 30, 2001 Decision and in effect, the appellate court
dismissed petitioners Complaint for eminent domain.
The Facts
On April 8, 1983, pursuant to a resolution passed by the barangay council,
petitioner Barangay Sindalan, San

Fernando,

Pampanga,

represented

by Barangay Captain Ismael Gutierrez, filed a Complaint for eminent domain against
respondents spouses Jose Magtoto III and Patricia Sindayan, the registered owners of a
parcel of land covered by Transfer Certificate of Title No. 117674-R. The Complaint was
docketed as Civil Case No. 6756 and raffled to the San Fernando, Pampanga RTC,
Branch

43. Petitioner

sought

to

convert

portion

of

respondents

land

into Barangay Sindalans feeder road. The alleged public purposes sought to be served
by the expropriation were stated in Barangay Resolution No. 6, as follows:
WHEREAS, said parcels of land shall be used, when acquired, as a
barangay feeder road for the agricultural and other products of the
residents, and just as inlet for their basic needs;
WHEREAS, presently, residents have to take a long circuitous dirt
road before they can reach the concrete provincial road, entailing
so much time, effort and money, not to mention possible damage
and/or spilage [sic] on the products consigned to or coming from,
the market outside the barangay; and
WHEREAS, said lots, used as outlet or inlet road, shall contribute
greatly to the general welfare of the people residing therein social,
cultural and health among other things, beside economic.[4]

Petitioner claimed that respondents property was the most practical and nearest
way to the municipal road. Pending the resolution of the case at the trial court, petitioner
deposited an amount equivalent to the fair market value of the property.[5]
On the other hand, respondents stated that they owned the 27,000- square meter
property, a portion of which is the subject of this case. In their Memorandum,[6] they
alleged that their lot is adjacent to Davsan II Subdivision privately owned by Dr. Felix
David and his wife. Prior to the filing of the expropriation case, said subdivision was
linked to MacArthur Highway through a pathway across the land of a certain Torres
family. Long before the passage of the barangay resolution, the wives of the subdivision
owner and the barangay captain, who were known to be agents of the subdivision, had
proposed buying a right-of-way for the subdivision across a portion of respondents
property. These prospective buyers, however, never returned after learning of the price
which the respondents ascribed to their property.
Respondents alleged that the expropriation of their property was for private use,
that is, for the benefit of the homeowners of Davsan II Subdivision. They contended that
petitioner deliberately omitted the name of Davsan II Subdivision and, instead, stated
that the expropriation was for the benefit of the residents of Sitio Paraiso in order to
conceal the fact that the access road being proposed to be built across the respondents
land was to serve a privately owned subdivision and those who would purchase the lots
of said subdivision. They also pointed out that under Presidential Decree No. (PD) 957, it
is the subdivision owner who is obliged to provide a feeder road to the subdivision
residents.[7]
After trial, the court a quo ruled, thus:
WHEREFORE, in view of all the foregoing premises duly
considered, the herein plaintiff is hereby declared as having a lawful
right to take the property hereinabove described and sought to be
condemned for the public purpose or use as aforestated, upon
payment of just compensation to be determined as of the date of
the filing of the Complaint in this [sic] expropriation proceedings.
Upon the entry of this Order of Condemnation, let three (3)
competent and disinterested persons be appointed as
Commissioners to ascertain and report to the Court the just
compensation for the property condemned.[8]

The Ruling of the Court of Appeals

Upon respondents appeal, the CA held:
We are convinced that it is the duty of the subdivision owner to
provide the right of way needed by residents of Davsan II
Subdivision as provided for in Section 29 of P.D. 957. Records show
that Purok Paraiso, which is supposed to benefit from this [sic]
expropriation proceedings is in reality Davsan II Subdivision as per
the testimony of Ruben Palo, plaintiffs own witness (TSN, p. 12,
December 115, 1986) [sic]. Appellants correctly stated that:
The act of Bo. Sindalan, San Fernando, Pampanga, in
effect relieved the owners of Davsan II Subdivision of
spending their own private funds for acquiring a right of
way and constructing the required access road to the
subdivision. It spent public funds for such private purpose
and deprived herein defendants-appellants of their
property for an ostensible public purpose x x x.
xxxx
WHEREFORE, premises considered, the appealed Decision is
hereby REVERSED and SET ASIDE and the Complaint for Eminent
Domain is DISMISSED for lack of merit.
SO ORDERED.[9]
The Issues
Petitioner imputes errors to the CA for (1) allegedly violating its power of eminent
domain, (2) finding that the expropriation of the property is not for public use but for a
privately owned subdivision, (3) finding that there was no payment of just compensation,
and (4) failing to accord respect to the findings of the trial court. Stated briefly, the main
issue in this case is whether the proposed exercise of the power of eminent domain
would be for a public purpose.
The Courts Ruling
The petition lacks merit.

In general, eminent domain is defined as the power of the nation or a sovereign state to
take, or to authorize the taking of, private property for a public use without the owners
consent, conditioned upon payment of just compensation.[10] It is acknowledged as an
inherent political right, founded on a common necessity and interest of appropriating the
property of individual members of the community to the great necessities of the whole
community.[11]

The exercise of the power of eminent domain is constrained by two constitutional

provisions: (1) that private property shall not be taken for public use without just
compensation under Article III (Bill of Rights), Section 9 and (2) that no person shall be
deprived of his/her life, liberty, or property without due process of law under Art. III, Sec.
1.
However, there is no precise meaning of public use and the term is susceptible of myriad
meanings depending on diverse situations. The limited meaning attached to public use is
use by the public or public employment, that a duty must devolve on the person or
corporation holding property appropriated by right of eminent domain to furnish the
public with the use intended, and that there must be a right on the part of the public, or
some portion of it, or some public or quasi-public agency on behalf of the public, to use
the property after it is condemned.[12]The more generally accepted view sees public use
as public advantage, convenience, or benefit, and that anything which tends to enlarge
the resources, increase the industrial energies, and promote the productive power of any
considerable number of the inhabitants of a section of the state, or which leads to the
growth of towns and the creation of new resources for the employment of capital and
labor, [which] contributes to the general welfare and the prosperity of the whole
community.[13] In this jurisdiction, public use is defined as whatever is beneficially
employed for the community.[14]
It is settled that the public nature of the prospective exercise of expropriation cannot
depend on the numerical count of those to be served or the smallness or largeness of
the community to be benefited.[15] The number of people is not determinative of whether
or not it constitutes public use, provided the use is exercisable in common and is not
limited to particular individuals.[16] Thus, the first essential requirement for a valid
exercise of eminent domain is for the expropriator to prove that the expropriation is for a
public use. In Municipality of Bian v. Garcia, this Court explicated that expropriation ends

with an order of condemnation declaring that the plaintiff has a lawful right to take the
property sought to be condemned, for the public use or purpose described in the
complaint, upon the payment of just compensation.[17]
Another vital requisite for a valid condemnation is the payment of just compensation to
the property owner. In the recent case of APO Fruits Corporation v. The Honorable Court
of Appeals,[18] just compensation has been defined as the full and fair equivalent of the
property taken from its owner by the expropriator, and that the gauge for computation is
not the takers gain but the owners loss. In order for the payment to be just, it must be
real, substantial, full, and ample. Not only must the payment be fair and correctly
determined, but also, the Court inEstate of Salud Jimenez v. Philippine Export
Processing Zone stressed that the payment should be made within a reasonable time
from the taking of the property.[19] It succinctly explained that without prompt payment,
compensation cannot be considered just inasmuch as the property owner is being made
to suffer the consequences of being immediately deprived of the land while being made
to wait for a decade or more before actually receiving the amount necessary to cope with
the loss. Thus, once just compensation is finally determined, the expropriator must
immediately pay the amount to the lot owner. In Reyes v. National Housing Authority, it
was ruled that 12% interest per annum shall be imposed on the final compensation until
paid.[20] Thus, any further delay in the payment will result in the imposition of 12%
interest per annum. However, in the recent case of Republic v. Lim, the Court enunciated
the rule that where the government failed to pay just compensation within five (5) years
from the finality of the judgment in the expropriation proceedings, the owners concerned
shall have the right to recover possession of their property.[21]
Since the individual stands to lose the property by compulsion of the law, the
expropriation authority should not further prejudice the owners rights by delaying
payment of just compensation. To obviate any possibility of delay in the payment, the
expropriator should already make available, at the time of the filing of the expropriation
complaint, the amount equal to the BIR zonal valuation or the fair market value of the
property per tax declaration whichever is higher.
The delayed payment of just compensation in numerous cases results from lack of funds
or the time spent in the determination of the legality of the expropriation and/or the fair
valuation of the property, and could result in dismay, disappointment, bitterness, and
even rancor on the part of the lot owners. It is not uncommon for the expropriator to take

possession of the condemned property upon deposit of a small amount equal to the
assessed value of the land per tax declaration and then challenge the valuation fixed by
the trial court resulting in an expropriate now, pay later situation. In the event the
expropriating agency questions the reasonability of the compensation fixed by the trial
court before the appellate court, then the latter may, upon motion, use its sound
discretion to order the payment to the lot owner of the amount equal to the valuation of
the property, as proposed by the condemnor during the proceedings before the
commissioners under Sec. 6, Rule 67 of the Rules of Court, subject to the final valuation
of the land. This way, the damage and prejudice to the property owner would be
considerably pared down.
On due process, it is likewise basic under the Constitution that the property owner must
be afforded a reasonable opportunity to be heard on the issues of public use and just
compensation and to present objections to and claims on them. [22] It is settled that taking
of property for a private use or without just compensation is a deprivation of property
without due process of law.[23] Moreover, it has to be emphasized that taking of private
property without filing any complaint before a court of law under Rule 67 of the Rules of
Court or existing laws is patently felonious, confiscatory, and unconstitutional. Judicial
notice can be taken of some instances wherein some government agencies or
corporations peremptorily took possession of private properties and usurped the owners
real rights for their immediate use without first instituting the required court
action. Running roughshod over the property rights of individuals is a clear and gross
breach of the constitutional guarantee of due process, which should not be
countenanced in a society where the rule of law holds sway.
In the case at bar, petitioner harps on eminent domain as an inherent power of
sovereignty similar

to

police

power

and

taxation. As

basic

political

unit,

its Sangguniang Barangay is clothed with the authority to provide barangay roads and
other facilities for public use and welfare. Petitioner relied on the following cases which
held a liberal view of the term public use in recognition of the evolving concept of the
power of eminent domain: Sea v. Manila Railroad Co.; Philippine Columbian Association
v. Panis; Sumulong v. Guerrero; Province of Camarines Sur v. Court of Appeals;
and Manosca v. Court of Appeals.[24]
Petitioners delegated power to expropriate is not at issue. The legal question in
this petition, however, is whether the taking of the land was for a public purpose or
use. In the exercise of the power of eminent domain, it is basic that the taking of private

property must be for a public purpose. A corollary issue is whether private property can
be taken by law from one person and given to another in the guise of public purpose.
In this regard, the petition must fail.
Petitioner alleges that there are at least 80 houses in the place and about 400
persons will be benefited with the use of a barangay road. The trial court believed that
the expropriation will not benefit only the residents of the subdivision, but also the
residents of Sitio or Purok Paraiso and the residents of the entire Barangay of Sindalan x
x x.[25] The trial court held that the subdivision is covered by Sitio or Purok Paraiso which
is a part or parcel of Barangay Sindalan. However, this finding was not supported by
evidence. On the contrary, it is Sitio Paraiso which is within Davsan II Subdivision based
on the testimony of petitioners own witness, Ruben Palo, as follows:
Atty. Mangiliman: Mr. Palo, you said that you have been residing at
Sitio Paraiso since 1973, is this Sitio Paraiso within the
Davson [sic] Subdivision?
Witness: Yes, sir.
xxxx
Atty. Mangiliman: And before you purchased that or at the time you
purchased it in 1972, I am referring to the lot where you are
now residing, the Davson [sic] Subdivision did not provide
for a road linking from the subdivision to the barrio road, am
I correct?
Witness: None, sir.
Atty. Mangiliman: And despite [sic] of that you purchased a lot
inside Davson [sic] Subdivision?
Witness: Yes, sir.
Atty. Mangiliman: Did you not demand from the developer of
Davson [sic] Subdivision that he should provide a road
linking from the subdivision to the barrio road of Sindalan?
Witness: No, sir, because I know they will provide for the road.
Atty. Mangiliman: And when you said that they will provide for that
road, you mean to tell us that it is the developer of Davson
[sic] Subdivision who will provide a road linking from the
subdivision to the barrio road of Sindalan?

Witness: Yes, sir.

Atty. Mangiliman: Now, Mr. Witness, you will agree with me that the
proposed road which will connect from Davson
[sic] Subdivision to the barrio road of Sindalan would benefit
mainly the lot buyers and home owners of Davson [sic]
Subdivision?
Witness: Yes, sir.
Atty. Mangiliman: And you also agree with me that there is no
portion of Davson [sic] Subdivision which is devoted to the
production of agricultural products?
Witness: None, sir.
Atty. Mangiliman: When the road which is the subject of this case
and sought to be expropriated has not yet been opened and
before a Writ of Possession was issued by the Court to
place the plaintiff in this case in possession, the residents of
Davson [sic] Subdivision have other way in going to the
barrio road?
Witness: None, sir.
Atty. Mangiliman: In that case Mr. Witness, how do you negotiate or
go out of the subdivision in going to the barrio?
Witness: We passed to the lot own [sic] by Mr. Torres which is near
the subdivision in going to the barrio road, sir.
Atty. Mangiliman: Did you not complain to the owner/developer of
the subdivision that he should provide for a road linking to
[sic] his subdivision to the barrio road because there is no
available exit from the said subdivision to the barrio road?
Witness: We have been telling that and he was promising that there
will be a road, sir.[26]
Firstly, based on the foregoing transcript, the intended feeder road sought to
serve the residents of the subdivision only. It has not been shown that the other
residents of BarangaySindalan, San Fernando, Pampanga will be benefited by the
contemplated road to be constructed on the lot of respondents spouses Jose Magtoto III
and Patricia Sindayan. While the number of people who use or can use the property is
not determinative of whether or not it constitutes public use or purpose, the factual milieu
of the case reveals that the intended use of respondents lot is confined solely to the
Davsan II Subdivision residents and is not exercisable in common.[27] Worse, the

expropriation will actually benefit the subdivisions owner who will be able to circumvent
his commitment to provide road access to the subdivision in conjunction with his
development permit and license to sell from the Housing and Land Use Regulatory
Board, and also be relieved of spending his own funds for a right-of-way. In this factual
setting, the Davsan II Subdivision homeowners are able to go to the barrio road by
passing through the lot of a certain Torres family. Thus, the inescapable conclusion is
that the expropriation of respondents lot is for the actual benefit of the Davsan II
Subdivision owner, with incidental benefit to the subdivision homeowners.
The intended expropriation of private property for the benefit of a private
individual is clearly proscribed by the Constitution, declaring that it should be for public
use or purpose. InCharles River Bridge v. Warren, the limitation on expropriation was
underscored, hence:
Although the sovereign power in free government may appropriate
all property, public as well as private, for public purposes, making
compensation therefore; yet it has never been understood, at
least never in our republic, that the sovereign power can take
the private property of A and give it to B by the right of eminent
domain; or that it can take it at all, except for public purposes; or
that it can take it for public purposes, without the duty and
responsibility of ordering compensation for the sacrifice of the
private property of one, for the good of the whole (11 Pet. at 642)
(emphasis supplied).[28]

US case law also points out that a member of the public cannot acquire a certain
private easement by means of expropriation for being unconstitutional, because even if
every member of the public should acquire the easement, it would remain a bundle of
private easements.[29]
Secondly, a compelling reason for the rejection of the expropriation is expressed
in Section 29, PD 957, which provides:
Sec. 29. Right of Way to Public Road.The owner or developer of a
subdivision without access to any existing public road or street must
secure a right of way to a public road or street and such right of way
must be developed and maintained according to the requirement of
the government authorities concerned.

Considering that the residents who need a feeder road are all subdivision lot
owners, it is the obligation of the Davsan II Subdivision owner to acquire a right-of-way
for them.However, the failure of the subdivision owner to provide an access road does
not shift the burden to petitioner. To deprive respondents of their property instead of
compelling the subdivision owner to comply with his obligation under the law is an abuse
of the power of eminent domain and is patently illegal. Without doubt, expropriation
cannot be justified on the basis of an unlawful purpose.
Thirdly, public funds can be used only for a public purpose. In this proposed
condemnation, government funds would be employed for the benefit of a private
individual without any legal mooring. In criminal law, this would constitute malversation.
Lastly, the facts tend to show that the petitioners proper remedy is to require the
Davsan II Subdivision owner to file a complaint for establishment of the easement of
right-of-way under Articles 649 to 656 of the Civil Code. Respondents must be granted
the opportunity to show that their lot is not a servient estate. Plainly, petitioners resort to
expropriation is an improper cause of action.
One last word: the power of eminent domain can only be exercised for public use
and with just compensation. Taking an individuals private property is a deprivation which
can only be justified by a higher goodwhich is public useand can only be
counterbalanced by just compensation. Without these safeguards, the taking of property
would not only be unlawful, immoral, and null and void, but would also constitute a gross
and condemnable transgression of an individuals basic right to property as well.
For this reason, courts should be more vigilant in protecting the rights of the
property owner and must perform a more thorough and diligent scrutiny of the alleged
public purpose behind the expropriation. Extreme caution is called for in resolving
complaints for condemnation, such that when a serious doubt arises regarding the
supposed public use of property, the doubt should be resolved in favor of the property
owner and against the State.
WHEREFORE, we AFFIRM the May 30, 2001 Decision and the October 26,
2001 Resolution of the CA, with costs against petitioner.
SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice
WE CONCUR:
Republic of the Philippines
Supreme Court
Baguio City
THIRD DIVISION
SPOUSES ANTONIO and FE YUSAY, G.R. No. 156684
Petitioners,
Present:
CARPIO MORALES, Chairperson,
BRION,
BERSAMIN,
VILLARAMA, JR., and
SERENO, JJ.

-versus -

COURT OF APPEALS, CITY MAYOR

and CITY COUNCIL
Promulgated:
OF MANDALUYONG CITY,
Respondents.
April 6, 2011
x-----------------------------------------------------------------------------------------x
RESOLUTION
BERSAMIN, J.:
The petitioners appeal the adverse decision promulgated on October 18, 2002[1] and
resolution promulgated on January 17, 2003,[2] whereby the Court of Appeals (CA)
reversed and set aside the order issued in their favor on February 19, 2002 by the
Regional Trial Court, Branch 214, in Mandaluyong City (RTC). [3] Thereby, the CA upheld
Resolution No. 552, Series of 1997, adopted by the City of Mandaluyong (City)
authorizing its then City Mayor to take the necessary legal steps for the expropriation of
the parcel of land registered in the names of the petitioners.
We affirm the CA.
Antecedents
The petitioners owned a parcel of land with an area of 1,044 square meters situated
between Nueve

de

Febrero

Street and Fernandez

Street in

Barangay

Mauway, Mandaluyong City. Half of their land they used as their residence, and the rest
they rented out to nine other families. Allegedly, the land was their only property and only
source of income.
On October

2,

1997,

the Sangguniang

Panglungsod of Mandaluyong City adopted

Resolution No. 552, Series of 1997, to authorize then City Mayor Benjamin S. Abalos,
Sr. to take the necessary legal steps for the expropriation of the land of the petitioners
for the purpose of developing it for low cost housing for the less privileged but deserving
city inhabitants. The resolution reads as follows:
RESOLUTION NO. 552, S-1997[4]
RESOLUTION AUTHORIZING HON. BENJAMIN S. ABALOS TO TAKE
THE NECESSARY LEGAL STEPS FOR THE EXPROPRIATION OF A
PARCEL OF LAND SITUATED ALONG DR.
JOSE FERNANDEZ STREET, BARANGAY MAUWAY, CITY
OF MANDALUYONG, OWNED BY MR. ANTONIO YUSAY
WHEREAS, there is a parcel of land situated along Dr. Jose Fernandez
Street, Barangay Mauway, City of Mandaluyong, owned and registered in
the name of MR. ANTONIO YUSAY;
WHEREAS, this piece of land have been occupied for about ten (10)
years by many financially hard-up families which the City Government of
Mandaluyong desires, among other things, to provide modest and decent
dwelling;
WHEREAS, the said families have already negotiated to acquire this land
but was refused by the above-named owner in total disregard to the City
Governments effort of providing land for the landless;
WHEREAS, the expropriation of said land would certainly benefit public
interest, let alone, a step towards the implementation of social justice and
urban land reform in this City;
WHEREAS, under the present situation, the City Council deems it
necessary to authorize Hon. Mayor BENJAMIN S. ABALOS to institute
expropriation proceedings to achieve the noble purpose of the City
Government of Mandaluyong.
NOW, THEREFORE, upon motion duly seconded, the City Council of
Mandaluyong, in session assembled, RESOLVED, as it hereby
RESOLVES, to authorize, as it is hereby authorizing, Hon. Mayor
BENJAMIN S. ABALOS, to institute expropriation proceedings against the
above-named registered owner of that parcel of land situated along Dr.
Jose Fernandez Street, Barangay Mauway, City of Mandaluyong, (f)or the

purpose of developing it to a low-cost housing project for the less

privileged but deserving constituents of this City.
ADOPTED on this 2nd day of October 1997 at the City of Mandaluyong.
Sgd. Adventor R. Delos Santos
Acting Sanggunian Secretary
Attested: Approved:
Sgd. Roberto J. Francisco Sgd. Benjamin S. Abalos
City Councilor & Acting City Mayor
Presiding Officer
Notwithstanding that the enactment of Resolution No. 552 was but the initial step in the
Citys exercise of its power of eminent domain granted under Section 19 of the Local
Government Code of 1991, the petitioners became alarmed, and filed a petition
for certiorari and prohibition in the RTC, praying for the annulment of Resolution No. 552
due to its being unconstitutional, confiscatory, improper, and without force and effect.
The City countered that Resolution No. 552 was a mere authorization given to the City
Mayor to initiate the legal steps towards expropriation, which included making a definite
offer to purchase the property of the petitioners; hence, the suit of the petitioners was
premature.
On January 31, 2001, the RTC ruled in favor of the City and dismissed the petition for
lack of merit, opining that certiorari did not lie against a legislative act of the City
Government, because the special civil action of certiorari was only available to assail
judicial or quasi-judicial acts done without or in excess of jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction; that the special civil
action of prohibition did not also lie under the circumstances considering that the act of
passing the resolution was not a judicial, or quasi-judicial, or ministerial act; and that
notwithstanding the issuance of Resolution No. 552, the City had yet to commit acts of
encroachment, excess, or usurpation, or had yet to act without or in excess of
jurisdiction or with grave abuse of discretion amounting lack or in excess of jurisdiction.
However, on February 19, 2002, the RTC, acting upon the petitioners motion for
reconsideration, set aside its decision and declared that Resolution No. 552 was null and
void. The RTC held that the petition was not premature because the passage of

Resolution No. 552 would already pave the way for the City to deprive the petitioners
and their heirs of their only property; that there was no due process in the passage of
Resolution No. 552 because the petitioners had not been invited to the subsequent
hearings on the resolution to enable them to ventilate their opposition; and that the
purpose for the expropriation was not for public use and the expropriation would not
benefit the greater number of inhabitants.
Aggrieved, the City appealed to the CA.
In its decision promulgated on October 18, 2002, the CA concluded that the
reversal of the January 31, 2001 decision by the RTC was not justified because
Resolution No. 552 deserved to be accorded the benefit of the presumption of regularity
and validity absent any sufficient showing to the contrary; that notice to the petitioners
(Spouses Yusay) of the succeeding hearings conducted by the City was not a part of
due process, for it was enough that their views had been consulted and that they had
been given the full opportunity to voice their protest; that to rule otherwise would be to
give every affected resident effective veto powers in law-making by a local government
unit; and that a public hearing, although necessary at times, was not indispensable and
merely aided in law-making.
The CA disposed as follows:
WHEREFORE, premises considered, the questioned order of the
Regional Trial Court, Branch 214, Mandaluyong City dated February 19,
2002 in SCA Case No. 15-MD, which declared Resolution No. 552, Series
of 1997 of the City of Mandaluyong null and void, is hereby REVERSED
and SET ASIDE. No costs.
SO ORDERED.[5]
The petitioners moved for reconsideration, but the CA denied their motion. Thus, they
appeal to the Court, posing the following issues, namely:
1.

Can the validity of Resolution No. 552 be assailed even before its
implementation?

2.

Must a citizen await the takeover and possession of his property by

the local government before he can go to court to nullify an unjust
expropriation?

Before resolving these issues, however, the Court considers it necessary to first
determine whether or not the action for certiorari and prohibition commenced by the
petitioners in the RTC was a proper recourse of the petitioners.
Ruling
We deny the petition for review, and find that certiorari and prohibition were not
available to the petitioners under the circumstances. Thus, we sustain, albeit upon
different grounds, the result announced by the CA, and declare that the RTC gravely
erred in giving due course to the petition for certiorari and prohibition.

1.
Certiorari does not lie to assail the issuance of
a resolution by the Sanggunian Panglungsod
The special civil action for certiorari is governed by Rule 65 of the 1997 Rules of
Civil Procedure, whose Section 1 provides:
Section 1. Petition for certiorari. When any tribunal, board or officer
exercising judicial or quasi-judicial functions has acted without or in
excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal, nor
any plain, speedy, and adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified petition in the proper court,
alleging the facts with certainty and praying that judgment be rendered
annulling or modifying the proceedings of such tribunal, board or officer,
and granting such incidental reliefs as law and justice may require.
xxx

For certiorari to prosper, therefore, the petitioner must allege and establish the
concurrence of the following requisites, namely:
(a) The writ is directed against a tribunal, board, or officer exercising
judicial or quasi-judicial functions;

(b) Such tribunal, board, or officer has acted without or in excess of

jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction; and
(c) There is no appeal or any plain, speedy, and adequate remedy in the
ordinary course of law.[6]
It is further emphasized that a petition for certiorari seeks solely to correct defects
in jurisdiction,[7] and does not correct just any error or mistake committed by a
court, board, or officer exercising judicial or quasi-judicial functions unless such
court, board, or officer thereby acts without jurisdiction or in excess of jurisdiction or with
such grave abuse of discretion amounting to lack of jurisdiction.[8]
The first requisite is that the respondent tribunal, board, or officer must be
exercising judicial or quasi-judicial functions. Judicial function, according to Bouvier, [9] is
the exercise of the judicial faculty or office; it also means the capacity to act in a specific
way which appertains to the judicial power, as one of the powers of government. The
term, Bouvier continues,[10] is used to describe generally those modes of action which
appertain to the judiciary as a department of organized government, and through and by
means of which it accomplishes its purpose and exercises its peculiar powers.
Based

on

the

foregoing, certiorari did

not

lie

against

the Sangguniang

Panglungsod, which was not a part of the Judiciary settling an actual controversy
involving legally demandable and enforceable rights when it adopted Resolution No.
552, but a legislative and policy-making body declaring its sentiment or opinion.
Nor did the Sangguniang Panglungsod abuse its discretion in adopting
Resolution No. 552. To demonstrate the absence of abuse of discretion, it is well to
differentiate between a resolution and an ordinance. The first is upon a specific matter of
a temporary nature while the latter is a law that is permanent in character. [11] No rights
can be conferred by and be inferred from a resolution, which is nothing but an
embodiment of what the lawmaking body has to say in the light of attendant
circumstances. In simply expressing its sentiment or opinion through the resolution,
therefore, the Sangguniang Panglungsod in no way abused its discretion, least of all
gravely, for its expression of sentiment or opinion was a constitutionally protected right.

Moreover, Republic Act No. 7160 (The Local Government Code) required the
City to pass an ordinance, not adopt a resolution, for the purpose of initiating an
expropriation proceeding. In this regard, Section 19 of The Local Government
Code clearly provides, viz:
Section 19. Eminent Domain. A local government unit may, through
its chief executive and acting pursuant to an ordinance, exercise the
power of eminent domain for public use, or purpose, or welfare for the
benefit of the poor and the landless, upon payment of just compensation,
pursuant to the provisions of the Constitution and pertinent
laws: Provided, however, That the power of eminent domain may not be
exercised unless a valid and definite offer has been previously made to
the owner, and such offer was not accepted: Provided, further, That the
local government unit may immediately take possession of the property
upon the filing of the expropriation proceedings and upon making a
deposit with the proper court of at least fifteen percent (15%) of the fair
market value of the property based on the current tax declaration of the
property to be expropriated: Provided, finally, That, the amount to be paid
for the expropriated property shall be determined by the proper court,
based on the fair market value at the time of the taking of the property.

A resolution like Resolution No. 552 that merely expresses the sentiment of
the Sangguniang Panglungsod is not sufficient for the purpose of initiating an
expropriation proceeding. Indeed, in Municipality of Paraaque v. V.M. Realty
Corporation,[12] a case in which the Municipality of Paraaque based its complaint for
expropriation on a resolution, not an ordinance, the Court ruled so:
The power of eminent domain is lodged in the legislative branch of
government, which may delegate the exercise thereof to LGUs, other
public entities and public utilities. An LGU may therefore exercise the
power to expropriate private property only when authorized by Congress
and subject to the latters control and restraints, imposed through the law
conferring the power or in other legislations. In this case, Section 19 of
RA 7160, which delegates to LGUs the power of eminent domain, also
lays down the parameters for its exercise. It provides as follows:
Section 19. Eminent Domain. A local government unit may,
through its chief executive and acting pursuant to an
ordinance, exercise the power of eminent domain for public
use, or purpose, or welfare for the benefit of the poor and the
landless, upon payment of just compensation, pursuant to the
provisions of the Constitution and pertinent laws: Provided,
however, That the power of eminent domain may not be
exercised unless a valid and definite offer has been previously
made to the owner, and such offer was not accepted: Provided,

further, That the local government unit may immediately take

possession of the property upon the filing of the expropriation
proceedings and upon making a deposit with the proper court of
at least fifteen percent (15%) of the fair market value of the
property based on the current tax declaration of the property to
be expropriated: Provided, finally, That, the amount to be paid
for the expropriated property shall be determined by the proper
court, based on the fair market value at the time of the taking of
the property. (Emphasis supplied)
Thus, the following essential requisites must concur before an LGU
can exercise the power of eminent domain:
1. An ordinance is enacted by the local legislative
council authorizing the local chief executive, in behalf of the
LGU, to exercise the power of eminent domain or pursue
expropriation proceedings over a particular private property.
2. The power of eminent domain is exercised for public use,
purpose or welfare, or for the benefit of the poor and the
landless.
3. There is payment of just compensation, as required under
Section 9 Article III of the Constitution and other pertinent laws.
4. A valid and definite offer has been previously made to the
owner of the property sought to be expropriated, but said offer
was not accepted.
In the case at bar, the local chief executive sought to exercise the
power of eminent domain pursuant to a resolution of the municipal
council. Thus, there was no compliance with the first requisite that the
mayor be authorized through an ordinance. Petitioner cites Camarines
Sur vs. Court of Appeals to show that a resolution may suffice to support
the exercise of eminent domain by an LGU. This case, however, is not in
point because the applicable law at that time was BP 337, the previous
Local Government Code, which had provided that a mere resolution
would enable an LGU to exercise eminent domain. In contrast, RA 7160,
the present Local Government Code which was already in force
when the Complaint for expropriation was filed, explicitly required
an ordinance for this purpose.
We are not convinced by petitioners insistence that the terms
resolution and ordinance are synonymous. A municipal ordinance is
different from a resolution. An ordinance is a law, but a resolution is
merely a declaration of the sentiment or opinion of a lawmaking
body on a specific matter. An ordinance possesses a general and
permanent character, but a resolution is temporary in nature.
Additionally, the two are enacted differently -- a third reading is
necessary for an ordinance, but not for a resolution, unless decided
otherwise by a majority of all the Sanggunian members.

If Congress intended to allow LGUs to exercise eminent domain

through a mere resolution, it would have simply adopted the language of
the previous Local Government Code. But Congress did not.In a clear
divergence from the previous Local Government Code, Section 19 of RA
7160 categorically requires that the local chief executive act pursuant to
an ordinance. Indeed, [l]egislative intent is determined principally from the
language of a statute. Where the language of a statute is clear and
unambiguous, the law is applied according to its express terms, and
interpretation would be resorted to only where a literal interpretation
would be either impossible or absurd or would lead to an injustice. In the
instant case, there is no reason to depart from this rule, since the law
requiring an ordinance is not at all impossible, absurd, or unjust.
Moreover, the power of eminent domain necessarily involves a
derogation of a fundamental or private right of the people. Accordingly,
the manifest change in the legislative language from resolution under BP
337 to ordinance under RA 7160 demands a strict construction. No
species of property is held by individuals with greater tenacity, and is
guarded by the Constitution and laws more sedulously, than the right to
the freehold of inhabitants. When the legislature interferes with that right
and, for greater public purposes, appropriates the land of an individual
without his consent, the plain meaning of the law should not be enlarged
by doubtful interpretation.
xxx
In its Brief filed before Respondent Court, petitioner argues that its
Sangguniang Bayan passed an ordinance on October 11, 1994 which
reiterated its Resolution No. 93-35, Series of 1993, and ratified all the
acts of its mayor regarding the subject expropriation.
This argument is bereft of merit. In the first place, petitioner merely
alleged the existence of such an ordinance, but it did not present any
certified true copy thereof. In the second place, petitioner did not raise
this point before this Court. In fact, it was mentioned by private
respondent, and only in passing. In any event, this allegation does not
cure the inherent defect of petitioners Complaint for expropriation filed
on September 23, 1993. It is hornbook doctrine that:
x x x in a motion to dismiss based on the ground that the
complaint fails to state a cause of action, the question submitted
before the court for determination is the sufficiency of the
allegations in the complaint itself. Whether those allegations are
true or not is beside the point, for their truth is hypothetically
admitted by the motion. The issue rather is: admitting them to be
true, may the court render a valid judgment in accordance with
the prayer of the complaint?
The fact that there is no cause of action is evident from the
face of the Complaint for expropriation which was based on a mere

resolution. The absence of an ordinance authorizing the same is

equivalent to lack of cause of action. Consequently, the Court of
Appeals committed no reversible error in affirming the trial courts Decision
which dismissed the expropriation suit.[13](Emphasis supplied)

In view of the absence of the proper expropriation ordinance authorizing and

providing for the expropriation, the petition for certiorari filed in the RTC was dismissible
for lack of cause of action.
2.
Prohibition does not lie against expropriation
The special civil action for prohibition is governed also by Section 2 of Rule 65 of
the 1997 Rules of Civil Procedure, which states:
Section 2. Petition for prohibition. When the proceedings of any
tribunal, corporation, board, officer or person, whether exercising judicial,
quasi-judicial or ministerial functions, are without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack or excess
of jurisdiction, and there is no appeal or any other plain, speedy, and
adequate remedy in the ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper court, alleging the facts
with certainty and praying that judgment be rendered commanding the
respondent to desist from further proceedings in the action or matter
specified therein, or otherwise granting such incidental reliefs as law and
justice may require.
xxx
The function of prohibition is to prevent the unlawful and oppressive exercise
of legal authority and to provide for a fair and orderly administration of justice. [14] The
writ of prohibition is directed against proceedings that are done without or in excess of
jurisdiction, or with grave abuse of discretion, there being no appeal or other plain,
speedy and adequate remedy in the ordinary course of law.[15] For grave abuse of
discretion to be a ground for prohibition, the petitioner must first demonstrate that the
tribunal, corporation, board, officer, or person, whether exercising judicial, quasijudicial or ministerial functions, has exercised its or his power in an arbitrary or
despotic manner, by reason of passion or personal hostility, which must be so patent
and gross as would amount to an evasion, or to a virtual refusal to perform the duty
enjoined or to act in contemplation of law.[16] On the other hand, the term excess of

jurisdiction signifies that the court, board, or officer has jurisdiction over a case but
has transcended such jurisdiction or acted without any authority.[17]
The petitioner must further allege in the petition and establish facts to show that
any other existing remedy is not speedy or adequate.[18] A remedy is plain, speedy and
adequate if it will promptly relieve the petitioner from the injurious effects of that
judgment and the acts of the tribunal or inferior court.[19]
The rule and relevant jurisprudence indicate that prohibition was not available to
the petitioners as a remedy against the adoption of Resolution No. 552, for
the Sangguniang Panglungsod, by such adoption, was not exercising judicial, quasijudicial or ministerial functions, but only expressing its collective sentiment or opinion.
Verily, there can be no prohibition against a procedure whereby the immediate
possession of the land under expropriation proceedings may be taken, provided always
that due provision is made to secure the prompt adjudication and payment of just
compensation to the owner. [20] This bar against prohibition comes from the nature of the
power of eminent domain as necessitating the taking of private land intended for public
use,[21] and the interest of the affected landowner is thus made subordinate to the power
of the State. Once the State decides to exercise its power of eminent domain, the power
of judicial review becomes limited in scope, and the courts will be left to determine the
appropriate amount of just compensation to be paid to the affected landowners. Only
when the landowners are not given their just compensation for the taking of their
property or when there has been no agreement on the amount of just compensation may
the remedy of prohibition become available.
Here, however, the remedy of prohibition was not called for, considering that only
a resolution expressing the desire of the Sangguniang Panglungsod to expropriate the
petitioners property was issued. As of then, it was premature for the petitioners to
mount any judicial challenge, for the
power of eminent domain could be exercised by the City only through the filing of a
verified complaint in the proper court. [22] Before the City as the expropriating authority
filed such verified complaint, no expropriation proceeding could be said to exist. Until
then, the petitioners as the owners could not also be deprived of their property under the
power of eminent domain.[23]

WHEREFORE, we affirm the decision promulgated on October 18, 2002 in CAG.R. SP No. 70618.
Costs to be paid by the petitioners.