1

City of Manila v. Laguio - closing down houses of sin or of ill-repute Local government units exercise police power through their respective legislative bodies. Their power however is subordinate to the certain constitutional limitations. (related topics: procedural and substantive due process, equal protection of the laws, deprivation of property) ity of Manila vs Judge Perfecto Laguio 22112010 ERMITA-MALATEHOTEL & MOTELOPERATORS v. CITY MAYOROF MANILA Facts: The petitioners filed a petition for prohibition against Ordinance No. 4760 for being violative of the due process clause, contending that said ordinance is not only arbitrary, unreasonable or oppressive but also vague, indefinite and uncertain, and likewise allege the invasion of th e righ t to privacy and the guaranty against self-incrimination. Ordinance No. 4760 p roposes to check the clandestine harboring of transients and guests of these establishments by requiring these transients and guests to fill up a registration form, prepared for the purpose, in a lobby open to public view at all times, and by introducing several other amendatory provisions calculated to shatter the privacy that characterizes the registration of transients and guests."Moreover, the increase in the licensed fees was intended to discourage "establishments of the kind from operating for purpose other than legal" and at the same time, to i n c r e a s e " t h e i n c o m e o f t h e c i t y government."The lower court ruled in favor of the petitioners. Hence, the appeal. Issue: Whether or not Ordinance No. 4760 is unconstitutional Held: No. Rationale: Th e mantle of protection associated with the due process guaranty does not cover p etitioners. Th is p articular manifestation of a police power measure being sp ecifically aimed to safeguard public morals is immune from such imputation of nullity resting purely on conjecture and unsupported by anything of substance. To hold oth erwise would be to unduly restrict and narrow the scope of p olice power which has been properly characterized as the most essential, insistent and the least limitable of powers, extending as it does "to all the great public needs."It would be, to paraphrase another leading decision, to destroy the very purpose of the state if it could be dep riv ed or allowed itself to be deprived of its competence to promote public h ealth, p ublic morals, public safety and the general welfare. Negatively put, police power is that inherent and plenary p ower in the State which enables it to prohibit all that is h urt full to th e comfort, safety, and welfare of society. On the legislative organs of the government, whether national or local, primarily rest the exercise of the police power, which , it cannot be too often emphasized, is the power to prescribe regulations to promote the health, morals, peace, good order, safety and general welfare of the people. In view of the requirements of due process, equal protection and other applicable constitutional guaranties however, the exercise of such police power insofar as it may affect the life, liberty or property of any person is subject to judicial inquiry. Where such exercise of police power may be considered as either capricious, whimsical, unjust or unreasonable, a denial of due process or a violation of any other applicable constitutional guaranty may call for correction by the courts. The police power of the City Council, however broad and far-reaching, is subordinate to the constitutional limitations thereon; and is subject to the limitation that its exercise must be reasonable and for the public good. In the case at bar, the enactment of the Ordinance was an invalid exercise of delegated power as it is unconstitutional and repugnant to general laws.

Police Power On 30 Mar 1993, Mayor Lim signed into law Ord 7783 entitled AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR OPERATION OF BUSINESSES PROVIDING CERTAIN FORMS OF AMUSEMENT, ENTERTAINMENT, SERVICES AND FACILITIES IN THE ERMITA-MALATE AREA, PRESCRIBING PENALTIES FOR VIOLATION THEREOF, AND FOR OTHER PURPOSES. It basically prohibited establishments such as bars, karaoke bars, motels and hotels from operating in the Malate District which was notoriously viewed as a red light district harboring thrill seekers. Malate Tourist Development Corporation avers that the ordinance is invalid as it includes hotels and motels in the enumeration of places offering amusement or entertainment. MTDC reiterates that they do not market such nor do they use women as tools for entertainment. MTDC also avers that under the LGC, LGUs can only regulate motels but cannot prohibit their operation. The City reiterates that the Ordinance is a valid exercise of Police Power as provided as well in the LGC. The City likewise emphasized that the purpose of the law is to promote morality in the City. ISSUE: Whether or not Ordinance 7783 is valid. HELD: The SC ruled that the said Ordinance is null and void. The SC noted that for an ordinance to be valid, it must not only be within the corporate powers of the local government unit to enact and must be passed according to the procedure prescribed by law, it must also conform to the following substantive requirements: (1) must not contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but may regulate trade; (5) must be general and consistent with public policy; and (6) must not be unreasonable.

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The Court reversed the judgment of the lower court and lifted the injuction on the Ordinance in question. *** Liberty is a blessing with out wh ich life is a misery, but liberty should not be made to prevail over authority because then society will fall into anarchy. Neither should authority be made to prevail over liberty because then the individual will fall into slavery. ERMITA-MALATE HOTEL AND MOTEL OPERATORS ASSOCIATION, INC. vs CITY MAYOR OF MANILA, digested GR # l-24693 July 31, 1967 (Constitutional Law Police Power, Ordinance) FACTS: Petitioners assailed the constitutionality of Manila Ordinance No. 4760 regulating the operation of hotels, motels and lodging houses on the ground that it is unreasonable and hence violative to the due process clause, wherein it requires establishments to provide guest registration forms on the lobby open for public view at all times. The facts of the case are: RespondentCityMayor contends that the challenged ordinance was a valid and proper exercise of police power measure for the proper purpose of curbing immorality. An explanatory note for the challenged ordinance made mention of the alarming increase in the rate of prostitution, adultery and fornication inManilatraceable in great part to the existence of motels and the like. ISSUE: Whether or not Ordinance No. 4760 is violative of the due process clause. HELD: No, the challenged ordinance as an exercise of police power was precisely enacted to minimize certain practices hurtful to public morals. As a due process requirement, an ordinance must not outrun the bounds of reason and result in sheer oppression for it to be valid. Thus it would be unreasonable to stigmatize an ordinance enacted precisely for the well-being of the people, specially if there is no factual foundation being laid to prove its alleged violation of due process and offset the ordinances presumed validity. 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. 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.

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.

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 then Sangguniang Bayan of Pasig.

MASIKIP VS CITY OF PASIG Where the taking by the State of private property is done for the benefit of a small

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. (B) PLAINTIFF HAS ARBITRARILY AND CAPRICIOUSLY CHOSEN THE PROPERTY SOUGHT TO BE EXPROPRIATED.

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. II

(C) EVEN ASSUMING ARGUENDO THAT DEFENDANTS PROPERTY MAY BE EXPROPRIATED BY PLAINTIFF, THE FAIR MARKET VALUE OF THE PROPERTY TO BE EXPROPRIATED FAR EXCEEDS SEVENTY-EIGHT THOUSAND PESOS (P78,000.00)

On April 25, 1995, petitioner filed a Motion to Dismiss the complaint on the following grounds: PLAINTIFFS COMPLAINT IS DEFECTIVE IN FORM AND SUBSTANCE, CONSIDERING THAT:

I PLAINTIFF HAS NO CAUSE OF ACTION FOR THE EXERCISE OF THE POWER OF EMINENT DOMAIN, CONSIDERING THAT:

(A) PLAINTIFF FAILS TO ALLEGE WITH CERTAINTY THE PURPOSE OF THE EXPROPRIATION.

(A) THERE IS NO GENUINE NECESSITY FOR THE TAKING OF THE PROPERTY SOUGHT TO BE EXPROPRIATED.

(B) PLAINTIFF HAS FAILED TO COMPLY WITH THE PREREQUISITES LAID DOWN IN SECTION 34, RULE VI OF THE RULES AND REGULATIONS

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IMPLEMENTING THE LOCAL GOVERNMENT CODE; THUS, THE INSTANT EXPROPRIATION PROCEEDING IS PREMATURE.

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.

III Hence, this petition anchored on the following grounds:

THE GRANTING OF THE EXPROPRIATION WOULD VIOLATE SECTION 261 (V) OF THE OMNIBUS ELECTION CODE.

IV

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:

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]

A. THERE IS NO EVIDENCE TO PROVE THAT THERE IS GENUINE NECESSITY FOR THE TAKING OF THE PETITIONERS PROPERTY.

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. 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.

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

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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 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 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 foregoing arguments may be synthesized into two main issues one substantive and one procedural. We will first address the procedural issue. 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).

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:

III

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]

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

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.

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:

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. 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

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.

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expropriated property shall be determined by the proper court, based on the fair market value at the time of the taking of the property.

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,

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]

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.

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 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.

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.

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.

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FERMIN MANAPAT, PETITIONER, VS. COURT OF APPEALS AND NATIONAL HOUSING AUTHORITY, RESPONDENTS. G.R. NO. 116176 DOMINGO LIM, PETITIONER, VS. COURT OF APPEALS AND NATIONAL HOUSING AUTHORITY, RESPONDENTS. G.R. NOS. 116491-503 NATIONAL HOUSING AUTHORITY, PETITIONER, VS. MAXIMO LOBERANES, ELADIO QUIMQUE, CESARIO VEGA, JUANITO SANTOS, ALEJANDRO ORACION AND GONZALO MERCADO, RESPONDENTS. DECISION NACHURA, J.: For the resolution of the Court are three consolidated petitions for review on certiorariunder Rule 45 of the Rules of Court. G.R. No. 110478 assails the May 27, 1993 Decision[2] of the Court of Appeals (CA) in CA-G.R. CV Nos. 10200-10212. G.R. No. 116176 questions the June 28, 1994 Decision[3] of the appellate court in CA-G.R. CV No. 27159. G.R. Nos. 116491-503 assails the March 2, 1994 and the July 25, 1994 Resolutions[4] of the CA also in CA-G.R. CV Nos. 10200-10212. The three-decade saga of the parties herein has for its subject parcels of land forming part of what was originally known as the Grace Park Subdivision in Caloocan City and formerly owned by the Roman Catholic Archbishop of Manila (RCAM) and/or the Philippine Realty Corporation (PRC). The Facts Sometime in the 1960s, RCAM allowed a number of individuals to occupy the Grace Park property on condition that they would vacate the premises should the former push through with the plan to construct a school in the area. The plan, however, did not materialize, thus, the occupants offered to purchase the portions they occupied. Later, as they could not afford RCAMs proposed price, the occupants, organizing themselves as exclusive members of the Eulogio Rodriguez, Jr. Tenants Association, Inc., petitioned the Government for the acquisition of the said property, its subdivision into home lots, and the resale of the subdivided lots to them at a low price.[5] Acting on the associations petition, the Government, in 1963, through the Land Tenure Administration (LTA), later succeeded by the Peoples Homesite and Housing Corporation (PHHC), negotiated for the acquisition of the property from RCAM/PRC. But because of the high asking price of RCAM and the budgetary constraints of the Government, the latters effort to purchase and/or to expropriate the property was discontinued. RCAM then decided to effect, on its own, the subdivision of the property and the sale of the individual subdivided lots to the public.[6] Petitioners Manapat and Lim and respondents Loberanes, Quimque, Vega, Santos, Oracion and Mercado in these consolidated cases were among those who purchased individual subdivided lots of Grace Park directly from RCAM and/or PRC.[7] A significant turn of events however happened in 1977 when the late President Ferdinand E. Marcos issued Presidential Decree (PD) No. 1072,[8] appropriating P1.2M out of the Presidents Special Operations Funds to cover the additional amount needed for the expropriation of Grace Park. The National Housing Authority (NHA), PHHCs successor, then filed several expropriation proceedings over the already subdivided lots for the purpose of developing Grace Park under the Zonal Improvement Program (ZIP) and subdividing it into small lots for distribution and resale at a low cost to the residents of the area.[9] The following cases were filed by the NHA with the Regional Trial Court (RTC) of Caloocan City: C-6225, C-6226, C-6227, C6228, C-6229, C-6230, C-6231, C-6232, C-6233, C-6234, C-6235, C-6236, C-6237, C-6238, C6255 and C-6435.[10] After due proceedings, the trial court rendered separate decisions dismissing the expropriation cases, with the exceptions of Cases Nos. C-6233 and C-6236 in which it ordered the condemnation of the involved lots.[11] On motion for reconsideration by the NHA in Cases Nos. C-6227, C-6228, C-6230, C-6234, C-6235, C-6238 and C-6255, the trial court later amended its decision, set aside its dismissal of the said cases, ordered the condemnation of the involved lots and fixed the amount of just compensation at P180.00 per square meter. In Cases Nos. C-6225, C-6229, C-6231, C-6232, C-6237 and C-6435, the RTC however denied NHAs motion for reconsideration.[12] NHA eventually appealed to the CA the decisions in Cases Nos. C-6225, C-6229, C-6231, C6232, C-6237 and C-6435 on the issue of the necessity of the taking, and the amended ruling in Cases Nos. C-6227, C-6228, C-6230, C-6234, C-6235, C-6238 and C-6255 on the issue of just compensation.[13] The CA consolidated the appeals and docketed them as CA-G.R. CV No. 10200-10212. NHA likewise filed with the CA an appeal from the decision in C-6226, which was docketed as CA-G.R. CV No. 27159. On May 27, 1993, the appellate court rendered its Decision[14] in CA-G.R. CV No. 1020010212 disposing of the appealed cases as follows:

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WHEREFORE, premises considered, judgment is hereby rendered: 1) Reversing and setting aside the decisions of dismissal in Cases Nos. C-6225, C-6229, C-6231, C-6232, C-6237 and C-6435; and in lieu thereof an order of condemnation is entered declaring that plaintiff-appellant NHA has a lawful right to take the lots involved for the public use described in the complaints; 2) Affirming the decisions in Case Nos. C-6227, C-6228, C-6234, C-6235, C-6238 and C-6255 insofar as said decision granted the expropriation; declaring that plaintiff-appellant NHA has a lawful right to take the lots involved for the public use stated in the complaint; but annulling and setting aside the just compensation fixed by the trial court at P180.00 per square meter in the said cases; 3) Ordering the remand of all the appealed cases, except for Case No. C-6230, to the trial court for determination of the just compensation to which defendants are entitled in accordance with Rule 67 of the Revised Rules of Court; 4) Finding the compromise agreement in Case No. C-6230, entitled, NHA v. Aurora Dy dela Costa, et al. in accordance with law, and not contrary to morals or public policy, and rendering judgment in accordance therewith; 5) Ordering Remedios Macato to be joined as defendant with Julia C. Diaz in Case No. C-6227. No pronouncement as to costs. SO ORDERED.[15] Rosemarie and Dolores Guanzon, two of the owners of the lots in C-6225, filed before this Court a petition for review on certiorari of the aforesaid decision of the appellate court [Their petition was docketed as G.R. Nos. 110462-74]. On September 5, 1994, we dismissed their petition for failure to sufficiently show that the CA had committed any reversible error in the challenged decision.[16] An Entry of Judgment was issued on February 2, 1995.[17] Likewise, Julia Diez and Remedios Macato, the owners of the lots in C-6227, assailed before us the afore-quoted CA decision through a petition under Rule 45. On July 28, 1993, however, in G.R. No. 110770, we denied their Motion for Extension of Time to file a petition for review on certiorari for their failure to submit an affidavit of service of the motion as required by Circular No. 19-91.[18] After denying their motion for reconsideration,[19] we issued an Entry of Judgment on August 27, 1993.[20] Petitioner Manapat, the defendant-landowner in C-6229, also elevated the case before us via a petition for review on certiorari docketed as G.R. No. 110478.[21] We initially dismissed this petition for having been filed out of time,[22] but we reinstated it on motion for reconsideration.[23] In the meantime, the other defendants-landowners in the expropriation casesRCAM/PRC in C6225, Maximo Loberanes and Eladio Quimque in C-6231, Alejandro Oracion, Gonzalo Mercado, Cesario Vega and Juanito Santos in C-6435, and Remedios Macato in C-6227moved for the reconsideration of the said May 27, 1993 Decision of the CA.[24] In the March 2, 1994 Resolution,[25] the appellate court resolved the motions in this wise: WHEREFORE, premises considered, the motion for reconsideration of movants Roman Catholic Archbishop of Manila and Philippine Realty Corporation (in Special Civil Action No. 6225) and movant-intervenor Remedios Macato (in Special Civil Action No. 6227) are DENIED. The motions for reconsideration of movants Gonzalo Mercado, Cesario Vega and Juanito Santos (in Special Civil Action No. 6435) and movants Maximo Loberanes and Eladio Quimque (in Special Civil Action No. 6231) are GRANTED. The motion for reconsideration of movant Alejandro Oracion (in Special Civil Action No. 6435) is partially granted to the extent of Three Hundred (300) square meters of Lot 22, Block 157. The decision of this Court promulgated May 27, 1993 is accordingly MODIFIED. Lot No. 26, Block No. 157 owned by Cesario Vega and Juanito Santos, and Lot No. 4, Block No. 157 owned by Maximo Loberanes and Eladio Quimque are declared exempt from expropriation and the corresponding complaints for expropriation (sic) DISMISSED insofar as said lots are concerned. Lot No. 22, Block No. 157 owned by movant Alejandro Oracion is declared exempt from expropriation to the extent of Three Hundred (300) square meters. Only the remaining Ninety (90) square meters shall be the subject of expropriation, the portion to be determined by the lower court in the manner most beneficial to the owner and consistent with the objective of PD 1072. SO ORDERED.[26] Aggrieved by the said March 2, 1994 CA Resolution specifically with regard to the exemption from expropriation of the lots of Loberanes, Quimque, Mercado, Vega and Santos, and the partial exemption of the lot of Oracion, NHA moved for the reconsideration of the same. In the subsequent July 25, 1994 Resolution,[27] the appellate court denied NHAs motion, together with the belated motion of Vivencio S. de Guzman, the defendant-landowner in C-6255. The dispositive portion of the July 25, 1994 Resolution reads: WHEREFORE, the motions for reconsideration of defendant-appellant Vivencio S. de Guzman of the decision promulgated May 27, 1993 and of plaintiff-appellant National Housing Authority of the resolution promulgated March 2, 1994 are DENIED. SO ORDERED.[28]

10
With the denial of its motion for reconsideration, NHA filed with this Court a Consolidated Petition for Review[29] under Rule 45, as aforesaid, assailing the March 2, 1994 and the July 25, 1994 Resolutions of the appellate court. NHAs petition was docketed as G.R. Nos. 116491503 against respondents Loberanes and Quimque (in C-6231), Vega, Santos, Oracion and Mercado (in C-6435). In a separate development, the CA, on June 28, 1994, rendered its Decision[30] inCA-G.R. CV No. 27159, reversing the RTCs ruling in C-6226. The fallo of the decision reads: WHEREFORE, FOREGOING PREMISES CONSIDERED, the appealed decision dated October 29, 1986 is hereby REVERSED for want of merit. Let the record of this case be remanded to the court of origin for further proceedings. IT IS SO ORDERED.[31] Discontented with the appellate courts ruling, petitioner Domingo Lim, one of the owners of the lots subject of C-6226, elevated the case to us via a petition for review on certiorari docketed as G.R. No. 116176.[32] The Issues Thus, for resolution by this Court are the following consolidated cases: (1) G.R. No. 110478 of Manapat; (2) G.R. Nos. 116491-503 of the NHA; and (3) G.R. No. 116176 of Lim. In G.R. No. 110487, petitioner Manapat argues in the main that, as he is also a member of the tenant association, the beneficiary of the expropriation, it would be incongruous to take the land away from him only to give it back to him as an intended beneficiary. Accordingly, the CA, in its May 27, 1993 Decision in CA-G.R. CV No. 10200-10212, should not have allowed the expropriation of his lot. To further support his stance, Manapat raises the following grounds: I THE COURT OF APPEALS ERRED IN HOLDING THAT THE ISSUANCE MADE IN THE EXERCISE OF LEGISLATIVE POWER, SPECIFYING THE LOTS TO BE EXPROPRIATED AND THE PURPOSE FOR WHICH THEY ARE INTENDED, REMOVES FROM THE JUDICIARY THE DETERMINATION OF THE NECESSITY OF THE TAKING, THERE BEING NO SHOWING OF ABUSE OF DISCRETION.[33] II SUPERVENING EVENT RENDERS IMPROPER THE DISPOSITION BY THE COURT OF APPEALS FOR AN ORDER OF CONDEMNATION DECLARING THAT NHA HAS A LAWFUL RIGHT TO TAKE THE LOT OF FERMIN MANAPAT FOR SUPPOSED PUBLIC USE AND FOR REMAND OF HIS CASE TO THE TRIAL COURT FOR DETERMINATION OF JUST COMPENSATION.[34] III THE COURT OF APPEALS SHOULD HAVE CONSIDERED THAT FERMIN MANAPAT IS NOT ONLY A BONA FIDE OCCUPANT IN THE GRACE PARK SUBDIVISION FOR PURPOSES OF P.D. 1072 BUT LIKEWISE HAS A TRANSFER CERTIFICATE OF TITLE NO. 42370 OF THE REGISTRY OF DEEDS FOR THE CITY OF CALOOCAN OVER THE SAME LOT SOUGHT TO BE EXPROPRIATED WHICH SHOULD NOT BE SUBJECT TO COLLATERAL ATTACK AS DISPOSED BY THE COURT OF APPEALS.[35] IV THE COURT OF APPEALS SHOULD HAVE CONSIDERED THAT THE EVENTUAL BENEFICIARIES OF ITS BENEVOLENT EXPROPRIATION ARE SQUATTERS.[36] NHA, in its petition in G.R. Nos. 116491-503, primarily contends that the CA erred when it issued its March 2, 1994 Resolution and modified the May 27, 1993 Decision in CA-G.R. CV No. 10200-10212 to the extent that it applied retroactively Article VI, Section 10 of Republic Act (R.A.) No. 7279, thus exempting from expropriation the 300-sq m lots of respondents Loberanes, Quimque, Vega, Santos, Oracion and Mercado. NHA summarized its arguments as follows: I The Honorable Court of Appeals erred in applying retroactively Article VI, Section 10 of Republic Act No. 7279 to the subject expropriation cases instituted back in 1977 by petitionerappellant NHA.[37]

A.

Republic Act 7279 passed in 1992 should operate prospectively and, therefore, should not be given retroactive effect.[38] Republic Act 7279 is a substantive and penal law with a penalty clause which cannot apply retroactively especially to pending actions.[39]

B.

Republic Act No. 7279 and PD 1072 are not in pari materia.[40]

The retroactive application of Article VI, Section 10 of RA 7279 will affect vested rights of petitioner-appellant NHA arising from its exercise of the power of eminent domain.[41]

11
exercised by the Legislature. However, it may be delegated by Congress to the President, administrative bodies, local government units, and even to private enterprises performing public services.[52] The Honorable Court of Appeals erred in ignoring the impractical consequences resulting from a selective expropriation of lots.[42] In G.R. No. 116176, petitioner Lim, a non-member of the tenant association who bought from RCAM/PRC four lots of the subdivided Grace Park Subdivision,[43] argues as follows: 1 Respondent NHA may not, as it would herein, legally re-group several smaller lots into which a much bigger lot had previously been subdivided, and consider and treat them as one again for the purpose of subdividing it once more into still smaller lots for distribution to its supposed or intended beneficiaries.[44] 2 There really was no genuine necessity for the expropriation of the lots in question to satisfy the purpose thereof as alleged in the complaint therefor.[45] 3 Respondent Court did not sustain the clear finding of the trial court that no evidence sufficient to prove its claim that the expropriation of said lots and subdividing them again into much smaller lots for resale to their present occupants would provide the latter with more healthful, decent and peaceful surroundings and thus improve the quality of their lives was ever presented by respondent NHA.[46] Stripped of non-essentials, the petitions raise only one fundamental issue, and that is, whether the NHA may validly expropriate the parcels of land subject of these cases. The Courts Ruling The power of eminent domain is an inherent and indispensable power of the State. Also called the power of expropriation, it is described as the highest and most exact idea of property remaining in the government that may be acquired for some public purpose through a method in the nature of a compulsory sale to the State.[47] By virtue of its sovereign character, the exercise of the power prevails over the non-impairment clause,[48] and is clearly superior to the final and executory judgment rendered by a court in an ejectment case.[49] Being inherent, the power need not be specifically conferred on the government by the Constitution. Section 9, Article III of the Constitution, which mandates that private property shall not be taken for a public use without just compensation, merely imposes a limit on the governments exercise of the power and provides a measure of protection to the individuals right to property.[50] Just like its two companion fundamental powers of the State,[51] the power of eminent domain is Albeit the power partakes of a sovereign character, it is by no means absolute. Its exercise is subject to limitations, one of which is, precisely, Section 9, Article III of the Constitution. Over the years and in a plethora of cases, this Court has recognized the following requisites for the valid exercise of the power of eminent domain: (1) the property taken must be private property; (2) there must be genuine necessity to take the private property; (3) the taking must be for public use; (4) there must be payment of just compensation; and (5) the taking must comply with due process of law.[53]Accordingly, the question that this Court must resolve is whether these requisites have been adequately addressed. It is incontrovertible that the parcels of land subject of these consolidated petitions are private property. Thus, the first requisite is satisfied. With respect to the second, it is well to recall that in Lagcao v. Judge Labra,[54] we declared that the foundation of the right to exercise eminent domain is genuine necessity, and that necessity must be of a public character. As a rule, the determination of whether there is genuine necessity for the exercise is a justiciable question.[55] However, when the power is exercised by the Legislature, the question of necessity is essentially a political question.[56] Thus, in City of Manila v. Chinese Community, [57] we held: The legislature, in providing for the exercise of the power of eminent domain, may directly determine the necessity for appropriating private property for a particular improvement for public use, and it may select the exact location of the improvement. In such a case, it is wellsettled that the utility of the proposed improvement, the extent of the public necessity for its construction, the expediency of constructing it, the suitableness of the location selected and the consequent necessity of taking the land selected for its site, are all questions exclusively for the legislature to determine, and the courts have no power to interfere, or to substitute their own views for those of the representatives of the people. In the instant cases, the authority to expropriate came from Presidential Decree No. 1072, issued by then President Ferdinand E. Marcos in 1977. At that time, and as explicitly recognized under the 1973 Constitution, President Marcos had legislative powers. Perforce, the expropriation of the subject properties identified with specificity in the P.D. --- was directed by legislation. The issue of necessity then assumed the nature of a political question.

II

12
As to the third requisite of public use, we examine the purpose for which the expropriation was undertaken by NHA. As set forth in its petition, NHA justifies the taking of the subject property for the purpose of improving and upgrading the area by constructing roads and installing facilities thereon under the Governments zonal improvement program and subdividing them into much smaller lots for distribution and sale at a low cost to qualified beneficiaries, mostly underprivileged long-time occupants of Grace Park. Around 510 families with approximately 5 members each will be benefited by the project.[58] The only remaining obstacle in the completion of this project is the lots subject of these consolidated petitions as the other lots in Grace Park have already been expropriated.[59] The Zonal Improvement Program (ZIP), being implemented for government by NHA, draws breath from policy mandates found in the 1987 Constitution.[60] It is an integral part of the governments socialized housing program which, in Sumulong v. Guerrero,[61] we deemed compliant with the public use requirement, it being a program clearly devoted to a public purpose. Justice Irene R. Cortes, speaking eloquently for the Court, said: Socialized housing is defined as, the construction of dwelling units for the middle and lower class members of our society, including the construction of the supporting infrastructure and other facilities (Pres. Decree No. 1224, par. 1). This definition was later expanded to include among others: a) The construction and/or improvement of dwelling units for the middle and lower income groups of the society, including the construction of the supporting infrastructure and other facilities; b) Slum clearance, relocation and resettlement of squatters and slum dwellers as well as the provision of related facilities and services; c) Slum improvement which consists basically of allocating homelots to the dwellers in the area or property involved, rearrangement and re-alignment of existing houses and other dwelling structures and the construction and provision of basic community facilities and services, where there are none, such as roads, footpaths, drainage, sewerage, water and power system, schools, barangay centers, community centers, clinics, open spaces, parks, playgrounds and other recreational facilities; d) The provision of economic opportunities, including the development of commercial and industrial estates and such other facilities to enhance the total community growth; and e) Such other activities undertaken in pursuance of the objective to provide and maintain housing for the greatest number of people under Presidential Decree No. 757. (Pres. Decree No. 1259, sec. 1) xxxx Specifically, urban renewal or redevelopment and the construction of low-cost housing is recognized as a public purpose, not only because of the expanded concept of public use but also because of specific provisions in the Constitution. The 1973 Constitution made it incumbent upon the State to establish, maintain and ensure adequate social services including housing [Art. II, sec. 7]. The 1987 Constitution goes even further by providing that: The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living and an improved quality of life for all. [Art. II, sec. 9] The state shall, by law, and for the common good, undertake, in cooperation with the private sector, a continuing program of urban land reform and housing which will make available at affordable cost decent housing and basic services to underprivileged and homeless citizens in urban centers and resettlement areas. It shall also promote adequate employment opportunities to such citizens. In the implementation of such program the State shall respect the rights of small property owners. (Art. XIII, sec. 9, Emphasis supplied) Housing is a basic human need. Shortage in housing is a matter of state concern since it directly and significantly affects public health, safety, the environment and in sum, the general welfare. The public character of housing measures does not change because units in housing projects cannot be occupied by all but only by those who satisfy prescribed qualifications. A beginning has to be made, for it is not possible to provide housing for all who need it, all at once. Population growth, the migration to urban areas and the mushrooming of crowded makeshift dwellings is a worldwide development particularly in developing countries. So basic and urgent are housing problems that the United Nations General Assembly proclaimed 1987 as the International Year of Shelter for the Homeless to focus the attention of the international community on those problems. The General Assembly is [s]eriously concerned that, despite the efforts of Governments at the national and local levels and of international organizations, the living conditions of the majority of the people in slums and squatter areas and rural settlements, especially in developing countries, continue to deteriorate in both relative and absolute terms. [G.A. Res. 37/221, Yearbook of the United Nations 1982, Vol. 36, p. 1043-4] In the light of the foregoing, this Court is satisfied that "socialized housing" falls within the confines of "public use". It is, particularly important to draw attention to paragraph (d) of Pres. Dec. No. 1224 which should be construed in relation with the preceding three paragraphs. Provisions on economic opportunities inextricably linked with low-cost housing, or slum

13
clearance, relocation and resettlement, or slum improvement emphasize the public purpose of the project.[62] It need only be added, at this juncture, that the public use requisite for the valid exercise of the power of eminent domain is a flexible and evolving concept influenced by changing conditions. At present, it may not be amiss to state that whatever is beneficially employed for the general welfare satisfies the requirement of public use.[63] Still, petitioner Manapat insists that, being himself a beneficiary of the expropriation (because he has been a long-time resident of Grace Park), it would be incongruous for government to take his land away from him only to give it back to him. This contention sadly fails to comprehend the public purpose for the taking under the socialized housing program. The parcels of land subject of the expropriation are, precisely, being taken so that they can be subdivided into much smaller lots --- at an average of 66.5 square meters per lot[64] --- for distribution to deserving dwellers in the area. Upon the completion of the project, Manapat, and those similarly situated as he, cannot assert any right to be awarded the very same lots they currently occupy, nor be entitled to the same area of the land they now have. Then, we have petitioner Lim and respondents Vega, Santos, Oracion, and Mercado, who argue that the lots they own should not be expropriated are already titled in their names and are very small in area, being already the subdivided portions of the original Grace Park Subdivision. We are not persuaded. J. M. Tuason & Co., Inc. v. Land Tenure Administration[65] is instructive. In that case, this Court adopted the dissenting opinion of Justice J. B. L. Reyes in Republic v. Baylosis,[66] that the propriety of exercising the power of eminent domain cannot be determined on a purely quantitative or area basis, given that the Constitution speaks of lands, not of landed estates. Speaking through Justice (later Chief Justice) Enrique M. Fernando, the Court said: This is not to say of course that property rights are disregarded. This is merely to emphasize that the philosophy of our Constitution embodying as it does what Justice Laurel referred to as its nationalistic and socialist traits discoverable upon even a sudden dip into a variety of [its] provisions although not extending as far as the destruction or annihilation of the rights to property, negates the postulate which at one time reigned supreme in American constitutional law as to their well-nigh inviolable character. This is not so under our Constitution, which rejects the doctrine of laissez faire with its abhorrence for the least interference with the autonomy supposed to be enjoyed by the property owner. Laissez faire, as Justice Malcolm pointed out as far back as 1919, did not take too firm a foothold in our jurisprudence. Our Constitution is much more explicit. There is no room for it for laissez faire. So Justice Laurel affirmed not only in the above opinion but in another concurring opinion quoted with approval in at least two of our subsequent decisions. We had occasion to reiterate such a view in the ACCFA case, decided barely two months ago. This particular grant of authority to Congress authorizing the expropriation of land is a clear manifestation of such a policy that finds expression in our fundamental law. So is the social justice principle enshrined in the Constitution of which it is an expression, as so clearly pointed out in the respective dissenting opinions of Justice J.B.L. Reyes and Chief Justice Paras in the Baylosis case. Why it should be thus is so plausibly set forth in the ACCFA decision, the opinion being penned by Justice Makalintal. We quote: The growing complexities of modern society, however, have rendered this traditional classification of the functions of government quite unrealistic, not to say obsolete. The areas which used to be left to private enterprise and initiative and which the government was called upon to enter optionally, and only because it was better equipped to administer for the public welfare than is any private individual or group of individuals, continue to lose their well-defined boundaries and to be absorbed within activities that the government must undertake in its sovereign capacity if it is to meet the increasing social challenges of the times. Here as almost everywhere else the tendency is undoubtedly towards a greater socialization of economic forces. Here of course this development was envisioned, indeed adopted as a national policy, by the Constitution itself in its declaration of principle concerning the promotion of social justice. In a more recent decision,[67] we had occasion to declare that the fact that the property is less than -hectare and that only a few would actually benefit from the expropriation does not diminish its public use character, inasmuch as public use now includes the broader notion of indirect public benefit or advantage, including in particular, urban land reform and housing. The Courts departure from the land size or area test finds further affirmation in its rulings in Mataas na Lupa Tenants Association, Inc. v. Dimayuga[68] and the aforecited Sumulong v. Guerrero.[69] Given this discussion, it is clear that public use, as a requisite for the exercise of eminent domain in the instant cases, has been adequately fulfilled. To satisfy the fourth requisite, we affirm the appellate courts disposition that the subject cases be remanded to the trial court for the determination of the amount of just compensation. Under case law, the said determination is a judicial prerogative.[70] As to the observance of the fifth requisite, the due process clause, in the expropriation proceedings, all the parties have been given their day in court. That they are now before this Court is attestation enough that they were not denied due process of law. From the foregoing disquisitions, it is unmistakable that all the requirements for the valid

14
exercise of the power of eminent domain have been complied with. Thus, our answer to the singular and fundamental issue in these consolidated cases is: YES, the NHA may validly expropriate the subject parcels of land. One final matter: the propriety of the application by the CA of R.A. No. 7279, otherwise known as the Urban Development and Housing Act of 1992. The Court is not unaware of the condition now imposed by R.A. No. 7279[71] that, for purposes of urban development and housing under the Act, where expropriation is resorted to, parcels of land owned by small property owners shall be exempted.[72]Small property owners are owners of residential lands with an area not exceeding 300 sq m in highly urbanized cities and 800 sq m in other urban areas and who do not own any other real property.[73] Invoking this limitation under the said law, the appellate court in the questioned rulings exempted from expropriation the lots owned by Loberanes, Quimque, Mercado, Vega and Santos, and partially exempted the lot of Oracion. The CAs ruling on this point is incorrect. R.A. No. 7279 was enacted in 1992, almost two decades after the expropriation cases against the property owners herein were instituted with the RTC in 1977. Nova constitutio futuris formam imponere debet, non praeteritis. A new statute should affect the future, not the past. The law looks forward, not backward.[74] Article 4 of the Civil Code even explicitly declares, (l)aws shall have no retroactive effect, unless the contrary is provided.[75] In these consolidated cases, the Court finds that the language of R.A. No. 7279 does not suggest that the Legislature has intended its provisions to have any retroactive application. On the contrary, Section 49 of the said law indicates that it shall take effect upon its publication in at least two (2) national newspapers of general circulation.[76] The laws prospective application being clearly stated, the Court cannot agree with the disposition of the appellate court that the subject lots not exceeding 300 sq m are exempt from expropriation. WHEREFORE, PREMISES CONSIDERED, the May 27, 1993 Decision of the Court of Appeals in CA-G.R. CV No. 10200-10212 and the June 28, 1994 Decision in CA-G.R. CV No. 27159 are AFFIRMED; and the March 2, 1994 and the July 25, 1994 Resolutions in CA-G.R. CV Nos. 10200-10212 are REVERSED and SET ASIDE. SO ORDERED. _____________________________________________________________________________ _____ Sometime in 1935, spouses Mateo Pidacan and Romana Eigo acquired under the homestead provision of Act No. 2874 aparcel of land consisting of about 22 hectares situated in San Jose, Occidental Mindoro. Patent No. 33883 and OriginalCertificate of Title (OCT) No. 2204 were issued on the land, in the names of the Pidacan spouses.In 1948, the Civil Aeronautics Administration (now Air Transportation Office or ATO) used a portion of the said property as anairport. Upon the death of the Pidacan spouses in 1974, the ATOconstructed a perimeter fence and a new terminal buildingonthe property. The ATO also lengthened, widened, and cemented the airports runway.The spouses heirs namely, Pacita Pidacan Vda. de Zubiri and Adela Pidacan Vda. de Robles demanded from ATO the payment of the value of the property as well as rentals for the use of the occupied premises. However, they were told that payment couldnot be made because the property was still in their parents name.The heirs claimed that they were entitled to payment of rentals plus the value of the property. The ATO countered that the heirswere not entitled to any payment, either of the value of the land or of the rentals because the property had been sold to itspredecessor, the defunct Civil Aeronautics Administration for P0.70 per square meter. The ATO claimed that even if it failed toobtain title in its name, it had been declaring the property for taxation purposes.The Trial Court rendered a decision orderingATO to payrental and the value of the land at P89 per square meter. On appeal, theCA ruled to remand the case to determine the just compensation. ISSUE: WHETHER OR NOT THE STATE CAN BE SUED IN THEIR EXERCISE OF ITS POWER OF EMINENT DOMAIN. HELD: Preponderance of evidence on record strongly indicates that the ATO s conversion of the property into an airport in1948 comes within the purview of eminent domain. Eminent domain or expropriation is the inherent right of the state to condemn private property to public use upon payment of just compensation. A number of circumstances must be present in the taking of property for purposes of eminent domain:(1) The expropriator must enter a private property;(2) The entrance into private property must be for more than a momentary period;(3) The entry into the property should be under warrant or color of legal authority;(4) The property must be devoted to a public use or otherwise informally appropriated or injuriously affected; and(5) The utilization of the property for public use must be in such a way as to oust the owner and deprive him of all beneficialenjoyment of the property.In this case, it is undisputed that petitioners private property was converted into an airport by respondent ATO. As aconsequence, petitioners were completely deprived of beneficial use and enjoyment of their property. Clearly, there was takingin the concept of expropriation as early as 1948 when the airport was constructed on petitioners private land.As a rule, the determination of just compensation in eminent domain cases is reckoned from the time of taking. In this case,however, application of the said rule would lead to grave injustice. Note that the ATO had been using petitioners property asairport since 1948 without having instituted the proper expropriation proceedings. To peg the value of the property at the timeof taking in 1948, despite the exponential increase in its value considering the lapse of over half a century, would be iniquitous.We cannot allow the ATO to conveniently invoke the right of eminent domain to take advantage of the ridiculously low value of the property at the time of taking that it arbitrarily chooses to the prejudice of petitioners.In this particular case, justice and fairness dictate that the appropriate reckoning point for the valuation of petitioners propertyis when the trial court made its order of expropriation in 2001. As for the fair value of the subject property, we believe that theamount arrived at by the commissioners appointed by the trial court, P304.39 per square meter, constitutes just compensationto petitioners. PRINCIPLE: Whenis a suit against the State

HEIRS OF MATEO PIDACAN VS ATO G.R. No. 162779FACTS:

15
NIA. For reasons that neither party has adequately explained, NIA and respondent did not push through with the sale. The 1980 deeds of sale were never implemented. Respondent did not receive any consideration pursuant to these deeds. On 20 August 1993, respondent, as administrator of the Property, filed an action for damages and just compensation against NIA. Respondent sought P10 million from NIA as just compensation, P3 million as unrealized profits or lucro cessante, P1 million attorneys fees, and costs of suit. Respondent later filed an Amended Complaint,[6] in which respondent additionally prayed that, in the alternative, the court order NIA to vacate and surrender the Property to respondent, and to pay damages, interest, attorneys fees and costs of suit. The trial court accepted and gave due course to the Amended Complaint in its Order of 22 July 1994. NIA countered that respondents right to bring the action had prescribed in accordance with Republic Act No. 3601 (RA 3601), as amended by Presidential Decree No. 552[7] (PD 552). NIA also argued that respondents failure to pursue the implementation of the 1980 deeds of sale amounted to laches. The Ruling of the Trial Court Before the Court is a petition for review on certiorari[1] assailing the Decision[2] of 26 January 2001 of the Court of Appeals in CA-G.R. CV No. 57493. The Court of Appeals modified the Decision[3] of 28 November 1996 of the Regional Trial Court of Cabanatuan City, Branch 28 in Civil Case No. 1593-AF, but affirmed the trial courts award of P4 million to respondent. The trial court found that NIA took between 9 to 11 hectares of the Property. NIA never paid respondent for the use of the land or for the subsequent loss of crops. The trial court also ruled that respondents right to seek damages had not lapsed. The trial courts Decision of 28 November 1996 (trial courts decision) reads in part: xxx Defendant should not waylay the plaintiff by prolonging the negotiation and then later on invoked (sic) prescription of action as a defense, this is a plain and simple way of defrauding others which Courts of Justice should not countenance. While it is true that R.A. No. 3601 is (sic) amended by PD 552 sets a limit on [or] capped the time within which to file the claims against acts and/or usurpation by the NIA, running of the prescriptive period should not be absolute but must be dependent on the circumstances attendant to each case, because of the confiscatory nature of the law. IN VIEW OF THE ABOVE FINDINGS AND DISCUSSION of the matters relevant to the instant case, the Court finds for the plaintiff and judgment is hereby rendered directing the defendant to pay the plaintiff the following: 1. the sum of Four Million Pesos (P4,000,000.00) representing payment to the 11 hectares of riceland occupied by the irrigation canal that traversed on the property of the Diazes; the sum of Six Million Six Hundred Seventy Nine Thousand Two Hundred Pesos (P6,679,200.00) representing the loss of 23,396 cavans of palay on account of the destruction made when the two irrigation canals were constructed on the property of the plaintiff through side-burrow instead of the earthfilling method, thus resulting further depression on the lots of the plaintiffs where during rainy season water stays for months and (sic) cannot be planted with palay;

THE REPUBLIC OF THE PHILIPPINES REPRESENTED BY THE NATIONAL IRRIGATION ADMINISTRATION, petitioner, vs. THE HONORABLE COURT OF APPEALS and FRANCISCO DIAZ, IN HIS CAPACITY AS ADMINISTRATOR OF THE INTESTATE ESTATE OF THE LATE MANUEL DIAZ,respondents. DECISION CARPIO, J.:

The Case

Antecedent Facts

Manuel Diaz owned approximately 172 hectares of tenanted agricultural land (Property) devoted to the planting of palay. The Property was located in La Fuente, Sta. Rosa, Nueva Ecija, and allegedly yielded between 132 to 200 cavans of palay per hectare every year. After Manuel Diazs death, his son, Franciso Diaz (respondent), was appointed administrator of the Property.

In 1972, the National Irrigation Administration (NIA) bulldozed about ten (10) hectares of the Property to build two irrigation canals (canals). Although the canals when finished occupied only a portion of the 10 hectares, the entire area became prone to flooding two months out of every year because of the side-burrow method NIA used in the construction of the canals. [4] NIA completed the canals without instituting expropriation proceedings or indemnifying the Propertys owners. Respondent sought compensation from NIA for the land affected by the canals, as well as for losses due to unrealized profits. He submitted various documents requested by NIA officials and even traveled to NIAs Manila office to present his claims. In 1980, NIA belatedly offered to buy the portions of the Property occupied by the canals pursuant to NIAs expansion program. Respondent and then NIA Acting Administrator Pelagio Gamad, Jr. signed three deeds of sale[5] (1980 deeds of sale) on 24 December 1980 to convey 15,677, 1,897 and 4,499 square meters, or a total of 22,073 square meters, of the Property to

2.

16
3. the sum of P500,000.00 by way of attorneys fees; and defendant is likewise directed to pay the costs of the suit. II. The Court of Appeals gravely erred when it affirmed the trial courts decision awarding just compensation of P4,000,000.00 to respondent on the basis of respondents Sinumpaang Salaysay dated September 20, 1995 and a letter of respondent, through counsel, dated February 8, 1994. III. The Court of Appeals gravely erred in not remanding the case to the trial court and in not directing it to appoint at least three commissioners selected by the parties, to hear, review, view the property and thereafter to assess the amount for the just compensation.[11] NIA no longer argues that respondents claim has prescribed under PD 552, but maintains that respondent is guilty of laches. NIA also assails the lower courts award of P4 million. NIA claims that the construction of the canals affected only 96,655 square meters of the Property. NIA computes the just compensation due to respondent at P1.39 per square meter, the price NIA and respondent agreed on in 1980. In sum, NIA contends that it should only pay respondent P134,350.45, and legal interest of 6% per annum from 1972 until the amount is fully paid, for 96,655 square meters of the Property. The appellate courts denial of the awards for loss of earnings and attorneys fees are no longer in issue as respondent chose not to appeal the CA Decision. The remaining questions for resolution by this Court are: (1) whether laches bars respondents claims; (2) whether this case should be remanded to the trial court for the appointment of commissioners; and (3) whether the Court of Appeals erred in affirming the award of P4 million to respondent.

SO ORDERED.[8] NIA appealed the trial courts decision to the Court of Appeals.

The Ruling of the Court of Appeals The Court of Appeals found that NIA bulldozed approximately 10 hectares of the Property without paying compensation. Like the trial court, the appellate court rejected NIAs argument that respondents claims had prescribed under PD 552. The Court of Appeals held that the 5-year prescriptive period mandated by PD 552 did not apply because respondent and NIA were in deep negotiations during that period, and because NIA itself had stalled respondents attempts to present his claims. The Court of Appeals upheld the trial courts award of P4 Million. Citing Garcia v. Court of Appeals,[9] the appellate court held that the rule requiring just compensation to be fixed as of the time of the taking was inapplicable to the present case. However, the appellate court struck down the award of P6,679,200 on the ground that respondent failed to adequately prove lost earnings. The appellate court also set aside the award of attorneys fees for lack of sufficient basis. The dispositive portion of the Court of Appeals Decision of 26 January 2001 (CA Decision) states: WHEREFORE, premises considered, the assailed Decision of the Regional Trial Court of Cabanatuan City is hereby AFFIRMED, with the MODIFICATION that the lower courts award of P6,679,200.00 representing loss of earnings and attorneys fees of P500,000.00 is hereby DELETED. SO ORDERED.
[10]

The Ruling of the Court

The petition is partly meritorious. Respondents Action Not Barred by Laches Having failed for three decades to pay respondent just compensation, NIA would now have respondents complaint dismissed on the ground that too much time has passed for respondent to pursue his claim. NIA first argued before the trial and appellate courts that respondents action had prescribed under PD 552. Although NIA has dropped its argument of prescription before this Court, NIA still contends that respondent slept on his rights and laches now bars his action. Laches is principally a doctrine of equity. Courts apply laches to avoid recognizing a right when to do so would result in a clearly inequitable situation or in an injustice.[12] The principle of laches finds no application in the present case. There is nothing inequitable in giving due course to respondents claim for compensation. Both equity and the law direct that a property owner should be compensated if his property is taken for public use. Eminent domain is the inherent power of a sovereign state to appropriate private property to particular uses to promote public welfare.[13] No one questions NIAs authority to exercise the delegated power of eminent domain. However, the power of eminent domain is not limitless. NIA cannot exercise the power with wanton disregard for property rights. One basic limitation

Respondent did not appeal the CA Decision. NIA elevated the case to this Court.

The Issues NIA, through the Solicitor General, raises the following issues: I. The Court of Appeals committed Grave Error in awarding P4,000,000.00 in just compensation without taking into consideration that just compensation must be ascertained at the time of taking in 1972 of the property, not at the time of the commencement of the filing of the complaint by respondent which, if not corrected, would result in a miscarriage of justice and grave and irreparable damage to petitioner/NIA.

17
on the States power of eminent domain is the constitutional directive that, [p]rivate property shall not be taken for public use without just compensation.[14] The thirteen-year interval between the execution of the 1980 deeds of sale and the filing of the complaint in 1993 does not bar respondents claim for compensation. In National Power Corporation v. Campos, Jr.,[15] this Court reiterated the long-standing rule that where private property is taken by the Government for public use without first acquiring title thereto either through expropriation or negotiated sale, the owners action to recover the land or the value thereof does not prescribe.[16] Thus, in Ansaldo v. Tantuico, Jr. [17] the Court allowed the landowners to seek compensation twenty-six years after the government took their land. In Amigable v. Cuenca, etc., et al.,[18]Amigable filed an action to claim compensation more than thirty years after the government constructed the roads on her lot. In both cases, the property owners were silent for several years before finally bringing their claims to the attention of the authorities. In contrast, in the present case, respondent has steadfastly pursued his claim with NIA since 1972. NIA faults respondent for desisting from claiming just compensation from NIA in 1980,[19] referring to the 1980 deeds of sale which were never implemented. NIA conveniently fails to mention that, as the other party to the 1980 deeds of sale, it was equally delinquent when it failed to perform its obligations under the deeds. NIA is partly to blame for the delay in this case. The trial and appellate courts found that NIA stalled and prolonged negotiations with respondent. Eight years passed before NIA even offered to buy the area occupied by the canals. More than three decades later, respondent has yet to receive an iota of compensation from NIA. In the meantime, NIA has been charging respondent and the other farmers in the area irrigation fees for the beneficial use of these canals.
[20]

to ascertain and report to the court the just compensation for the property sought to be taken. The order of appointment shall designate the time and place of the first session of the hearing to be held by the commissioners and specify the time within which their report is to be filed with the court. Rule 67, however, presupposes that NIA exercised its right of eminent domain by filing a complaint for that purpose before the appropriate court.[24] Judicial determination of the propriety of the exercise of the power of eminent domain and the just compensation for the subject property then follows.[25] The proceedings give the property owner the chance to object to the taking of his property and to present evidence on its value and on the consequential damage to other parts of his property.[26] Respondent was not given these opportunities, as NIA did not observe the procedure in Rule 67. Worse, NIA refused to pay respondent just compensation. The seizure of ones property without payment, even though intended for public use, is a taking without due process of law and a denial of the equal protection of the laws. [27] NIA, not respondent, transgressed the requirements of due process. When a government agency itself violates procedural requirements, it waives the usual procedure prescribed in Rule 67. This Court ruled in the recent case of National Power Corporation(NPC) v. Court of Appeals,[28] to wit: We have held that the usual procedure in the determination of just compensation is waived when the government itself initially violates procedural requirements. NPCs taking of Pobres property without filing the appropriate expropriation proceedings and paying him just compensation is a transgression of procedural due process.[29] (Emphasis supplied.) Like in NPC, the present case is not an action for expropriation. NIA never filed expropriation proceedings although it had ample opportunity to do so. Respondents complaint is an ordinary civil action for the recovery of possession of the Property or its value, and damages. Under these circumstances, a trial before commissioners is not necessary.[30] The records show that NIA had every opportunity to argue its case before the trial court. NIA presented a witness, cross-examined respondents witnesses, and submitted documentary evidence.[31] NIAs officers even went with respondent on an ocular inspection of the Property. The trial court took into account the inspection in arriving at its decision. However, NIA never raised the appointment of commissioners as an issue before the trial court. Though NIA actively participated in the proceedings below, it did not move for the appointment of commissioners or object to their absence at any time. A party cannot raise for the first time on appeal an issue not raised in the trial court.[32] NIA is thus estopped from belatedly protesting the lack of commissioners. Whether the Court of Appeals Erred in Affirming the Trial Courts Award of P4 Million Jurisprudence clearly provides for the remedies available to a landowner when his land is taken by the government for public use. The owner may recover his property if its return is feasible, or, if it is not, the aggrieved owner may demand payment of just compensation for the

NIAs conduct shows callous disregard for the rights of the Propertys owners and for NIAs own duties under the law. As the expropriating agency in this case, NIA should have instituted the proceedings necessary to acquire the private property it took for public purpose and to compensate the Propertys owners. Section 2(e) of RA 3601, as amended by PD 552, expressly states that the NIA should exercise the right of eminent domain in the manner provided by law for the institution of expropriation proceedings.[21] The exercise of eminent domain entails payment of just compensation. Otherwise, title over the expropriated property cannot pass to the government.[22] Following its own enabling law, NIA should have taken steps to acquire the affected portion of the Property either through any mode of acquisition or the institution of expropriation proceedings.[23] RA 3601, as amended, does not authorize NIA to simply appropriate part of the Property without instituting legal proceedings or compensating respondent. Whether this Case Should be Remanded to the Trial Court for the Appointment of Commissioners NIA contends that it was deprived of due process when the trial court determined the compensation due to respondent without the assistance of commissioners. NIA refers to the procedure found in Section 5, Rule 67 of the 1964 Rules of Court applicable at the time, to wit: SEC. 5. Ascertainment of compensation. Upon the entry of the order of condemnation, the court shall appoint not more than three (3) competent and disinterested persons as commissioners

18
land taken.[33] In this case, the trial court found that respondent is entitled to compensation of P4 Million for 11 hectares of the Property, or P36.36 per square meter. NIA assails the lower courts award on two grounds. First, NIA claims that the affected area of the Property is 96,655 square meters and not 10 or 11 hectares. Second, NIA maintains that the just compensation for the 96,655 square meters is P1.39 per square meter, the price agreed upon by the parties in 1980. On the other hand, respondent argues that these are questions of fact, which are not the province of this Court. True, factual findings of the Court of Appeals are generally binding on this Court. However, there are exceptions to this rule, such as when the factual findings of the Court of Appeals and the trial court are contradictory, or when the findings are not supported by the evidence on record.[34] These exceptions obtain in the present case. At first glance, it would appear that the Court of Appeals affirmed the trial courts findings that served as basis for the award of P4 Million. A closer reading of the Court of Appeals and trial courts decisions reveals otherwise. The trial court awarded P4 Million as payment [for] the 11 hectares of land,[35] but the appellate court found that only approximately ten (10) hectares [were] bulldozed by the defendant.[36] These findings of the trial court and Court of Appeals are actually contradictory. Further, respondent himself alleged in a demand letter[37] to NIA dated 8 February 1994 that the total area affected by the construction of the canals was 96,655 square meters. The trial court based its finding of 11 hectares on the testimony of retired NIA Engineer Agapito Panahon (Engineer Panahon), the area engineer who headed the construction of the canals in 1972. However, Engineer Panahon merely testified that the area of the Property affected by the construction was (m)ore or less 9 to 11 hectares[38] Respondent testified that the bulldozed area was about 10 hectares, more or less.[39] These testimonies, in conjunction with respondents demand letter, NIAs own allegations, and other evidence, suffice to establish that NIA took or damaged 96,655 square meters of the Property. The area of 96,655 square meters, or about 9.67 hectares, falls within the 9 to 11 hectares range estimated by Engineer Panahon, and is near enough to 10 hectares, more or less. However, Engineer Panahons and respondents estimates, standing alone, cannot prove with any certainty that a larger area of 10 or 11 hectares was damaged. The lower courts likewise erred in awarding P4 Million to respondent. Just compensation is the fair value of the property as between one who receives, and one who desires to sell, x x x fixed at the time of the actual taking by the government.[40] This rule holds true when the property is taken before the filing of an expropriation suit, and even if it is the property owner who brings the action for compensation.[41] In affirming the trial courts award, the Court of Appeals cited Garcia v. Court of Appeals,[42] which provides an exception to the rule. In Garcia, the Court held that when the government takes property, not for the purpose of eminent domain, and the government does not initiate condemnation proceedings or other attempts to acquire such property, just compensation should be reckoned not at the time of taking but at the time the trial court made its order of expropriation.[43] However, the Garcia ruling does not apply to the present case. The 15,677, 1,897 and 4,499 square meter portions a total of 22,073 square meters (Canal Sites) of the Property identified in the 1980 deeds of sale are occupied by irrigation canals. There is no dispute that the Canal Sites serve a public purpose because the canals provide much-needed irrigation to farms in the locality. There is also no dispute that when NIA actually took over the Canal Sites, the purpose was to exercise NIAs delegated power of eminent domain. Just compensation for the Canal Sites must thus be computed as of the time of taking. In this case, respondent does not contest that NIAs valuation of P1.39 per square meter was the approximate fair market value of the Property in 1972. Respondent even agreed to this price when he signed the 1980 deeds of sale. At the least, P1.39 per square meter was that sum of money which a person, desirous but not compelled to buy, and an owner, willing but not compelled to sell, would agree on as a price.[44] Respondent protests that to value the Canal Sites at this rate would hardly be just to him, considering that he has waited for more than thirty years to be compensated. The Court finds it no less reprehensible that NIA has denied respondents valid claim for compensation for so long. Just compensation means not only the correct determination of the amount due to the property owner but also payment to him of the amount due within a reasonable time from the taking.[45] Respondent is certainly entitled to legal interest and damages by reason of NIAs inexcusable delay. The concept of just compensation, however, does not imply fairness to the property owner alone. Compensation must be just not only to the property owner, but also to the public which ultimately bears the cost of expropriation. The property owner is entitled to compensation only for what he actually loses, and what he loses is only the actual value of the property at the time of the taking.[46] Respondent is thus entitled to just compensation for the 22,073 square meter Canal Sites at P1.39 per square meter, with legal interest from the time of the taking of the Canal Sites in 1972 until the amount due is fully paid. In line with current jurisprudence,[47] we set the legal interest at 12% per annum in order to eliminate the usual issue of the constant fluctuation and inflation of the value of currency over time. The remaining 74,582 square meters (surrounding land) encircling the Canal Sites is another matter. NIA took the surrounding land when NIA bulldozed the area and rendered it useless for the planting of palay for several years. Taking occurs not only when the government actually deprives or dispossesses the property owner of his property or of its ordinary use, but also when there is a practical destruction or material impairment of the value of his property.[48] NIA never filed proceedings to expropriate the surrounding land, nor did it exhibit intent, or attempt, to purchase it. The 1980 deeds of sale referred only to the 22,073 square meters comprising the Canal Sites. There is no showing that the surrounding land served, or continues to serve, some public purpose. In awarding compensation for the surrounding land affected by NIAs construction activities in 1972, however, the lower courts overlooked respondents prayer for recovery of possession. As we pointed out earlier, possession of the unpaid property may be returned to the aggrieved landowner if the circumstances permit it.[49] In this case, the return to respondent of a substantial portion of his Property, specifically, the 74,582 square meters surrounding the Canal Sites, is indeed feasible. The ocular inspection authorized by the trial court revealed that there were signs of planting and harvesting on the

19
land xxx except that portion occupied by the irrigation canal(s).[50] This indicates that the surrounding land has recovered, and can be devoted again to the planting of palay. Respondent affirmed this fact in his testimony.[51] Certainly, respondent would not seek the return of a parcel of land that is no longer of any use to him. Respondents prayer for recovery of possession should thus be granted. NIA should immediately vacate the 74,582 square meters of the Property surrounding the Canal Sites. NIA should turn over to respondent possession of the surrounding land without further delay. or P1.39 per square meter as just compensation for the 15,677, 1,897 and 4,499 square meter portions of the Property occupied by the irrigation canals, as well as legal interest of 12% per annum on the amount adjudged from 1972 until fully paid. The National Irrigation Authority shall further pay respondent temperate and exemplary damages of P150,000 and P250,000, respectively, and costs of suit; and 3. Upon receipt of full payment, the Estate of Manuel Diaz shall convey the 22,073 square meter portion of the Property occupied by the irrigation canals to the National Irrigation Authority. SO ORDERED. Award of Temperate and Exemplary Damages

The Court will not award attorneys fees in light of respondents choice not to appeal the CA Decision striking down the award.[52] However, we find it proper to award temperate and exemplary damages in light of NIAs misuse of its power of eminent domain. Any arm of the State that exercises the delegated power of eminent domain must wield that power with circumspection and utmost regard for procedural requirements.[53] A government instrumentality that fails to observe the constitutional guarantees of just compensation and due process abuses the authority delegated to it, and is liable to the property owner for damages. Temperate or moderate damages may be recovered if pecuniary loss has been suffered but the amount cannot be proved with certainty from the nature of the case.[54] Here, the trial and appellate courts found that the owners were unable to plant palay on 96,655 square meters of the Property for an unspecified period during and after NIAs construction of the canals in 1972. The passage of time, however, has made it impossible to determine these losses with any certainty. NIA also deprived the owners of the Property of possession of a substantial portion of their land since 1972. Considering the particular circumstances of this case, an award of P150,000 as temperate damages is reasonable. NIAs irresponsible exercise of its eminent domain powers also deserves censure. For more than three decades, NIA has been charging irrigation fees from respondent and other landowners for the use of the canals built on the Property, without reimbursing respondent a single cent for the loss and damage. NIA exhibits a disturbingly cavalier attitude towards respondents property rights, rights to due process of law and to equal protection of the laws. Worse, this is not the first time NIA has disregarded the rights of private property owners by refusing to pay just compensation promptly.[55] To dissuade NIA from continuing this practice and to set an example for other agencies exercising eminent domain powers, NIA is directed to pay respondent exemplary damages[56] of P250,000. WHEREFORE, we AFFIRM the Decision of 26 January 2001 of the Court of Appeals in CA-G.R. CV No. 57493 with the following MODIFICATIONS: 1. The National Irrigation Authority shall immediately return possession and control of the 74,582 square meter portion of the Property surrounding, but not occupied by, the irrigation canals to the Estate of the late Manuel Diaz, represented by its Administrator, respondent Francisco Diaz; 2. We reduce the award of P4 Million and instead order the National Irrigation Authority to pay the Estate of Manuel Diaz, through respondent Administrator, P30,681.47

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BASHER BONGCARAWAN y MACARAMBON, accused-appellant. PUNO, J.: This is an appeal from the Decision1 dated December 27, 1999 of the Regional Trial Court of Iligan City, Branch 06, in Criminal Case No. 06-7542, finding accused Basher Bongcarawan y Macarambon guilty beyond reasonable doubt of violation of Section 16, Article III of Republic Act No. 64252 as amended, and sentencing him to suffer the penalty of reclusion perpetua, and to pay a fine of Five Hundred Thousand Pesos (P500,000.00) without subsidiary imprisonment in case of insolvency.1wphi1.nt Accused Basher Bongcarawan y Macarambon was charged in an Information which reads, thus: "That on or about March 13, 1999, in the City of Iligan, Philippines, and within the jurisdiction of this Honorable Court, the said accused, without authority of law, did then and there wilfully, unlawfully and feloniously have in his possession, custody and control eight (8) packs of Methamphetamine Hydrochloride, a regulated drug commonly known as Shabu, weighing approximately 400 grams, without the corresponding license or prescription. Contrary to and in violation of Section 16, Article III of RA 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended by RA 7659."3 During the arraignment, the accused pleaded not guilty. Trial ensued. Evidence for the prosecution shows that on March 11, 1999, an interisland passenger ship, M/V Super Ferry 5, sailed from Manila to Iligan City. At about 3:00 a.m. on March 13, 1999, the vessel was about to dock at the port of Iligan City when its security officer, Mark Diesmo, received a complaint from passenger Lorena Canoy about her missing jewelry. Canoy suspected one of her co-passengers at cabin no. 106 as the culprit. Diesmo and four (4) other members of the vessel security force accompanied Canoy to search for the suspect whom they later found at

20
the economy section.4 The suspect was identified as the accused, Basher Bongcarawan. The accused was informed of the complaint and was invited to go back to cabin no. 106. With his consent, he was bodily searched, but no jewelry was found. He was then escorted by two (2) security agents back to the economy section to get his baggage. The accused took a Samsonite suitcase and brought this back to the cabin. When requested by the security, the accused opened the suitcase, revealing a brown bag and small plastic packs containing white crystalline substance. Suspecting the substance to be "shabu," the security personnel immediately reported the matter to the ship captain and took pictures of the accused beside the suitcase and its contents. They also called the Philippine Coast Guard for assistance.5 At about 6:00 a.m., Lt. Robert Patrimonio, YN Aurelio Estoque, CD2 Phoudinie Lantao and RM3 Merchardo De Guzman of the Philippine Coast Guard arrived and took custody of the accused and the seized items--the Samsonite suitcase, a brown bag6 and eight (8) small plastic packs of white crystalline substance.7 When asked about the contraband articles, the accused explained that he was just requested by a certain Alican "Alex" Macapudi to bring the suitcase to the latter's brother in Iligan City.8 The accused and the seized items were later turned over by the coast guard to the Presidential Anti-Organized Crime Task Force (PAOCTF). Chief Inspector Graciano Mijares and his men brought the accused to the PAOCTF Headquarters,9 while the packs of white crystalline substance were sent to the NBI Regional Office in Cagayan de Oro City for laboratory examination. NBI Forensic Chemist Nicanor Cruz later confirmed the substance to be methamphetamine hydrochloride, commonly known as "shabu," weighing 399.3266 grams.10 The accused testified and proffered his own version. On March 11, 1999, at about 10:00 p.m., he was in Quiapo, Manila where he met Alican "Alex" Macapudi, a neighbor who has a store in Marawi City. He was requested by Macapudi to bring a Samsonite suitcase containing sunglasses and watches to Iligan City, and to give it to Macapudi's brother at the Iligan port. He boarded the M/V Super Ferry 5 on the same night, carrying a big luggage full of clothes, a small luggage or "maleta" containing the sunglasses and brushes he bought from Manila, and the Samsonite suitcase of Macapudi.11 He stayed at cabin no. 106. At about 4:00 a.m of March 13, 1999, as the vessel was about to dock at the Iligan port, he took his baggage and positioned himself at the economy section to be able to disembark ahead of the other passengers. There, he met a friend, Ansari Ambor. While they were conversing, five (5) members of the vessel security force and a woman whom he recognized as his co-passenger at cabin no. 106 came and told him that he was suspected of stealing jewelry. He voluntarily went with the group back to cabin no. 106 where he was frisked. Subsequently, he was asked to get his baggage, so he went back to the economy section and took the big luggage and Macapudi's Samsonite suitcase. He left the small "maleta" containing sunglasses and brushes for fear that they would be confiscated by the security personnel. When requested, he voluntarily opened the big luggage, but refused to do the same to the Samsonite suitcase which he claimed was not his and had a secret combination lock. The security personnel forcibly opened the suitcase and found packs of white crystalline substance inside which they suspected to be "shabu." They took pictures of him with the merchandise, and asked him to sign a turn over receipt which was later given to the Philippine Coast Guard, then to the PAOCTF.12 On December 27, 1999, the trial court rendered judgment, the dispositive portion of which reads: "WHEREFORE, the court finds the accused Basher Bongcarawan y Macarambon GUILTY beyond reasonable doubt as principal of the offense of violation of Section 16, Art. III, R.A. No. 6425 as amended by R.A. No. 7659 and hereby imposes upon him the penalty of RECLUSION PERPETUA and a fine of FIVE HUNDRED THOUSAND (P500,000.00) PESOS, without subsidiary imprisonment in case of insolvency. Having been under preventive imprisonment since March 13, 1999 until the present, the period of such preventive detention shall be credited in full in favor of the accused in the service of his sentence. The 399.3266 grams of methamphetamine hydrochloride or shabu is hereby ordered delivered to the National Bureau of Investigation for proper disposition. SO ORDERED."13 Hence, this appeal where the accused raises the following assignment of errors: "I. THE COURT A QUO ERRED IN SO HOLDING THAT THE DRUG CONFISCATED IS ADMISSIBLE IN EVIDENCE AGAINST THE ACCUSED/APPELLANT. II. THE COURT A QUO ERRED IN SO HOLDING THAT THE APPELLANT OWNED THE CONFISCATED EVIDENCE AND THEREFORE ADMISSIBLE IN EVIDENCE AGAINST HIM."14 On the first assignment of error, the accused-appellant contends that the Samsonite suitcase containing the methamphetamine hydrochloride or "shabu" was forcibly opened and searched without his consent, and hence, in violation of his constitutional right against unreasonable search and seizure. Any evidence acquired pursuant to such unlawful search and seizure, he claims, is inadmissible in evidence against him. He also contends thatPeople v. Marti15 is not applicable in this case because a vessel security personnel is deemed to perform the duties of a policeman. The contentions are devoid of merit. The right against unreasonable search and seizure is a fundamental right protected by the Constitution.16Evidence acquired in violation of this right shall be inadmissible for any purpose in any proceeding.17 Whenever this right is challenged, an individual may choose between invoking the constitutional protection or waiving his right by giving consent to the search and seizure. It should be stressed, however, that protection is against transgression committed by the government or its agent. As held by this Court in the case of People v. Marti,18 "[i]n the absence of governmental interference, liberties guaranteed by the Constitution cannot be invoked against the State."19 The constitutional proscription against unlawful searches and seizures applies as a restraint directed only against the government and its agencies tasked with the enforcement of

21
the law. Thus, it could only be invoked against the State to whom the restraint against arbitrary and unreasonable exercise of power is imposed.20 In the case before us, the baggage of the accused-appellant was searched by the vessel security personnel. It was only after they found "shabu" inside the suitcase that they called the Philippine Coast Guard for assistance. The search and seizure of the suitcase and the contraband items was therefore carried out without government intervention, and hence, the constitutional protection against unreasonable search and seizure does not apply. There is no merit in the contention of the accused-appellant that the search and seizure performed by the vessel security personnel should be considered as one conducted by the police authorities for like the latter, the former are armed and tasked to maintain peace and order. The vessel security officer in the case at bar is a private employee and does not discharge any governmental function. In contrast, police officers are agents of the state tasked with the sovereign function of enforcement of the law. Historically and until now, it is against them and other agents of the state that the protection against unreasonable searches and seizures may be invoked. On the second assignment of error, the accused-appellant contends that he is not the owner of the Samsonite suitcase and he had no knowledge that the same contained "shabu." He submits that without knowledge or intent to possess the dangerous drug, he cannot be convicted of the crime charged.21 We are not persuaded. In a prosecution for illegal possession of dangerous drugs, the following facts must be proven beyond reasonable doubt, viz: (1) that the accused is in possession of the object identified as a prohibited or a regulated drug; (2) that such possession is not authorized by law; and (3) that the accused freely and consciously possessed the said drug.22 The first two elements were sufficiently proven in this case, and were in fact undisputed. We are left with the third. As early as 1910 in the case of United States v. Tan Misa,23 this Court has ruled that to warrant conviction, the possession of dangerous drugs must be with knowledge of the accused, or that animus possidendi existed together with the possession or control of such articles.24 It has been ruled, however, that possession of dangerous drugs constitutes prima facie evidence of knowledge or animus possidendi sufficient to convict an accused in the absence of a satisfactory explanation of such possession.25 Hence, the burden of evidence is shifted to the accused to explain the absence of knowledge or animus possidendi.26 In this respect, the accused-appellant has utterly failed. His testimony, uncorroborated, selfserving and incredulous, was not given credence by the trial court. We find no reason to disagree. Well-settled is the rule that in the absence of palpable error or grave abuse of discretion on the part of the trial judge, the trial court's evaluation of the credibility of witnesses will not be disturbed on appeal.27 Moreover, evidence must be credible in itself to deserve credence and weight in law. In this case, the accused-appellant admits that when he was asked to get his baggage, he knew it would be inspected.28 Why he got the Samsonite suitcase allegedly not owned by him and which had a combination lock known only to the owner remains unclear. He also claims that he did not present his small "maleta" for inspection for fear that its contents consisting of expensive sunglasses and brushes would be confiscated,29 but he brought the Samsonite suitcase which is not his and also contained expensive sunglasses, and even watches.30 The things in possession of a person are presumed by law to be owned by him.31 To overcome this presumption, it is necessary to present clear and convincing evidence to the contrary. In this case, the accused points to a certain Alican "Alex" Macapudi as the owner of the contraband, but presented no evidence to support his claim. As aptly observed by the trial judge: "First, who is Alex Macap[u]di aka Ali[c]an Macap[u]di? Does he really exist or simply a figment of the imagination? He says that Alex Macap[u]di is a friend and a fellow businessman who has a stall selling sunglasses in Marawi City. But no witnesses were presented to prove that there is such a living, breathing, flesh and blood person named Alex Macap[u]di who entrusted the Samsonite to the accused. Surely, if he does exist, he has friends, fellow businessmen and acquaintances who could testify and support the claim of the accused."32 Mere denial of ownership will not suffice especially if, as in the case at bar, it is the keystone of the defense of the accused-appellant. Stories can easily be fabricated. It will take more than barebone allegations to convince this Court that a courier of dangerous drugs is not its owner and has no knowledge or intent to possess the same.1wphi1.nt WHEREFORE, the decision of the Regional Trial Court of Iligan City, Branch 06, in Criminal Case No. 06-7542, convicting accused-appellant Basher Bongcarawan of violation of Section 16, Article III of Republic Act No. 6425, as amended, and sentencing him to suffer the penalty of Reclusion Perpetua and to pay a fine of Five Hundred Thousand Pesos (P500,000.00) without subsidiary imprisonment in case of insolvency, is AFFIRMED. Costs against the accused-appellant. SO ORDERED. PEOPLE OF THE PHILIPPINES, plaintiff-appellee vs. ANDRE MARTI, accused-appellant. The Solicitor General for plaintiff-appellee. Reynaldo B. Tatoy and Abelardo E. Rogacion for accused-appellant.

BIDIN, J.:p

22
This is an appeal from a decision * rendered by the Special Criminal Court of Manila (Regional Trial Court, Branch XLIX) convicting accused-appellant of violation of Section 21 (b), Article IV in relation to Section 4, Article 11 and Section 2 (e) (i), Article 1 of Republic Act 6425, as amended, otherwise known as the Dangerous Drugs Act. The facts as summarized in the brief of the prosecution are as follows: On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and his common-law wife, Shirley Reyes, went to the booth of the "Manila Packing and Export Forwarders" in the Pistang Pilipino Complex, Ermita, Manila, carrying with them four (4) gift wrapped packages. Anita Reyes (the proprietress and no relation to Shirley Reyes) attended to them. The appellant informed Anita Reyes that he was sending the packages to a friend in Zurich, Switzerland. Appellant filled up the contract necessary for the transaction, writing therein his name, passport number, the date of shipment and the name and address of the consignee, namely, "WALTER FIERZ, Mattacketr II, 8052 Zurich, Switzerland" (Decision, p. 6) Anita Reyes then asked the appellant if she could examine and inspect the packages. Appellant, however, refused, assuring her that the packages simply contained books, cigars, and gloves and were gifts to his friend in Zurich. In view of appellant's representation, Anita Reyes no longer insisted on inspecting the packages. The four (4) packages were then placed inside a brown corrugated box one by two feet in size (1' x 2'). Styro-foam was placed at the bottom and on top of the packages before the box was sealed with masking tape, thus making the box ready for shipment (Decision, p. 8). Before delivery of appellant's box to the Bureau of Customs and/or Bureau of Posts, Mr. Job Reyes (proprietor) and husband of Anita (Reyes), following standard operating procedure, opened the boxes for final inspection. When he opened appellant's box, a peculiar odor emitted therefrom. His curiousity aroused, he squeezed one of the bundles allegedly containing gloves and felt dried leaves inside. Opening one of the bundles, he pulled out a cellophane wrapper protruding from the opening of one of the gloves. He made an opening on one of the cellophane wrappers and took several grams of the contents thereof (tsn, pp. 29-30, October 6, 1987; Emphasis supplied). Job Reyes forthwith prepared a letter reporting the shipment to the NBI and requesting a laboratory examination of the samples he extracted from the cellophane wrapper (tsn, pp. 5-6, October 6, 1987). He brought the letter and a sample of appellant's shipment to the Narcotics Section of the National Bureau of Investigation (NBI), at about 1:30 o'clock in the afternoon of that date, i.e., August 14, 1987. He was interviewed by the Chief of Narcotics Section. Job Reyes informed the NBI that the rest of the shipment was still in his office. Therefore, Job Reyes and three (3) NBI agents, and a photographer, went to the Reyes' office at Ermita, Manila (tsn, p. 30, October 6, 1987). Job Reyes brought out the box in which appellant's packages were placed and, in the presence of the NBI agents, opened the top flaps, removed the styro-foam and took out the cellophane wrappers from inside the gloves. Dried marijuana leaves were found to have been contained inside the cellophane wrappers (tsn, p. 38, October 6, 1987; Emphasis supplied). The package which allegedly contained books was likewise opened by Job Reyes. He discovered that the package contained bricks or cake-like dried marijuana leaves. The package which allegedly contained tabacalera cigars was also opened. It turned out that dried marijuana leaves were neatly stocked underneath the cigars (tsn, p. 39, October 6, 1987). The NBI agents made an inventory and took charge of the box and of the contents thereof, after signing a "Receipt" acknowledging custody of the said effects (tsn, pp. 2-3, October 7, 1987). Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's stated address in his passport being the Manila Central Post Office, the agents requested assistance from the latter's Chief Security. On August 27, 1987, appellant, while claiming his mail at the Central Post Office, was invited by the NBI to shed light on the attempted shipment of the seized dried leaves. On the same day the Narcotics Section of the NBI submitted the dried leaves to the Forensic Chemistry Section for laboratory examination. It turned out that the dried leaves were marijuana flowering tops as certified by the forensic chemist. (Appellee's Brief, pp. 9-11, Rollo, pp. 132134). Thereafter, an Information was filed against appellant for violation of RA 6425, otherwise known as the Dangerous Drugs Act. After trial, the court a quo rendered the assailed decision. In this appeal, accused/appellant assigns the following errors, to wit: THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE ILLEGALLY SEARCHED AND SEIZED OBJECTS CONTAINED IN THE FOUR PARCELS. THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE UNDISPUTED FACT THAT HIS RIGHTS UNDER THE CONSTITUTION WHILE UNDER CUSTODIAL PROCEEDINGS WERE NOT OBSERVED.

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THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE EXPLANATION OF THE APPELLANT ON HOW THE FOUR PARCELS CAME INTO HIS POSSESSION (Appellant's Brief, p. 1;Rollo, p. 55) 1. Appellant contends that the evidence subject of the imputed offense had been obtained in violation of his constitutional rights against unreasonable search and seizure and privacy of communication (Sec. 2 and 3, Art. III, Constitution) and therefore argues that the same should be held inadmissible in evidence (Sec. 3 (2), Art. III). Sections 2 and 3, Article III of the Constitution provide: Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. Our present constitutional provision on the guarantee against unreasonable search and seizure had its origin in the 1935 Charter which, worded as follows: The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but uponprobable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized. (Sec. 1 [3], Article III) was in turn derived almost verbatim from the Fourth Amendment ** to the United States Constitution. As such, the Court may turn to the pronouncements of the United States Federal Supreme Court and State Appellate Courts which are considered doctrinal in this jurisdiction. Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US Federal Supreme Court (367 US 643, 81 S.Ct. 1684, 6 L.Ed. 1081 [1961]), this Court, in Stonehill v. Diokno (20 SCRA 383 [1967]), declared as inadmissible any evidence obtained by virtue of a defective search and seizure warrant, abandoning in the process the ruling earlier adopted in Moncado v. People's Court (80 Phil. 1 [1948]) wherein the admissibility of evidence was not affected by the illegality of its seizure. The 1973 Charter (Sec. 4 [2], Art. IV) constitutionalized the Stonehill ruling and is carried over up to the present with the advent of the 1987 Constitution. In a number of cases, the Court strictly adhered to the exclusionary rule and has struck down the admissibility of evidence obtained in violation of the constitutional safeguard against unreasonable searches and seizures. (Bache & Co., (Phil.), Inc., v. Ruiz, 37 SCRA 823 [1971]; Lim v. Ponce de Leon, 66 SCRA 299 [1975]; People v. Burgos, 144 SCRA 1 [1986]; Roan v. Gonzales, 145 SCRA 687 [1987]; See also Salazar v. Hon. Achacoso, et al., GR No. 81510, March 14, 1990). It must be noted, however, that in all those cases adverted to, the evidence so obtained were invariably procured by the State acting through the medium of its law enforcers or other authorized government agencies. On the other hand, the case at bar assumes a peculiar character since the evidence sought to be excluded was primarily discovered and obtained by a private person, acting in a private capacity and without the intervention and participation of State authorities. Under the circumstances, can accused/appellant validly claim that his constitutional right against unreasonable searches and seizure has been violated? Stated otherwise, may an act of a private individual, allegedly in violation of appellant's constitutional rights, be invoked against the State? We hold in the negative. In the absence of governmental interference, the liberties guaranteed by the Constitution cannot be invoked against the State. As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]: 1. This constitutional right (against unreasonable search and seizure) refers to the immunity of one's person, whether citizen or alien, from interference by government, included in which is his residence, his papers, and other possessions. . . . . . . There the state, however powerful, does not as such have the access except under the circumstances above noted, for in the traditional formulation, his house, however humble, is his castle. Thus is outlawed any unwarranted intrusion by government, which is called upon to refrain from any invasion of his dwelling and to respect the privacies of his life. . . . (Cf. Schermerber v. California, 384 US 757 [1966] and Boyd v. United States, 116 US 616 [1886]; Emphasis supplied). In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court there in construing the right against unreasonable searches and seizures declared that: (t)he Fourth Amendment gives protection against unlawful searches and seizures, and as shown in previous cases, its protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was

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not intended to be a limitation upon other than governmental agencies; as against such authority it was the purpose of the Fourth Amendment to secure the citizen in the right of unmolested occupation of his dwelling and the possession of his property, subject to the right of seizure by process duly served. The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a parking attendant who searched the automobile to ascertain the owner thereof found marijuana instead, without the knowledge and participation of police authorities, was declared admissible in prosecution for illegal possession of narcotics. And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that the search and seizure clauses are restraints upon the government and its agents, not upon private individuals (citing People v. Potter, 240 Cal. App.2d 621, 49 Cap. Rptr, 892 (1966); State v. Brown, Mo., 391 S.W.2d 903 (1965); State v. Olsen, Or., 317 P.2d 938 (1957). Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court there said: The search of which appellant complains, however, was made by a private citizen the owner of a motel in which appellant stayed overnight and in which he left behind a travel case containing the evidence***complained of. The search was made on the motel owner's own initiative. Because of it, he became suspicious, called the local police, informed them of the bag's contents, and made it available to the authorities. The fourth amendment and the case law applying it do not require exclusion of evidence obtained through a search by a private citizen. Rather, the amendment only proscribes governmental action." The contraband in the case at bar having come into possession of the Government without the latter transgressing appellant's rights against unreasonable search and seizure, the Court sees no cogent reason why the same should not be admitted against him in the prosecution of the offense charged. Appellant, however, would like this court to believe that NBI agents made an illegal search and seizure of the evidence later on used in prosecuting the case which resulted in his conviction. The postulate advanced by accused/appellant needs to be clarified in two days. In both instances, the argument stands to fall on its own weight, or the lack of it. First, the factual considerations of the case at bar readily foreclose the proposition that NBI agents conducted an illegal search and seizure of the prohibited merchandise. Records of the case clearly indicate that it was Mr. Job Reyes, the proprietor of the forwarding agency, who made search/inspection of the packages. Said inspection was reasonable and a standard operating procedure on the part of Mr. Reyes as a precautionary measure before delivery of packages to the Bureau of Customs or the Bureau of Posts (TSN, October 6 & 7, 1987, pp. 15-18; pp. 7-8; Original Records, pp. 119-122; 167-168). It will be recalled that after Reyes opened the box containing the illicit cargo, he took samples of the same to the NBI and later summoned the agents to his place of business. Thereafter, he opened the parcel containing the rest of the shipment and entrusted the care and custody thereof to the NBI agents. Clearly, the NBI agents made no search and seizure, much less an illegal one, contrary to the postulate of accused/appellant. Second, the mere presence of the NBI agents did not convert the reasonable search effected by Reyes into a warrantless search and seizure proscribed by the Constitution. Merely to observe and look at that which is in plain sight is not a search. Having observed that which is open, where no trespass has been committed in aid thereof, is not search (Chadwick v. State, 429 SW2d 135). Where the contraband articles are identified without a trespass on the part of the arresting officer, there is not the search that is prohibited by the constitution (US v. Lee 274 US 559, 71 L.Ed. 1202 [1927]; Ker v. State of California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v. State, 429 SW2d 122 [1968]). In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where the property was taken into custody of the police at the specific request of the manager and where the search was initially made by the owner there is no unreasonable search and seizure within the constitutional meaning of the term. That the Bill of Rights embodied in the Constitution is not meant to be invoked against acts of private individuals finds support in the deliberations of the Constitutional Commission. True, the liberties guaranteed by the fundamental law of the land must always be subject to protection. But protection against whom? Commissioner Bernas in his sponsorship speech in the Bill of Rights answers the query which he himself posed, as follows: First, the general reflections. The protection of fundamental liberties in the essence of constitutional democracy. Protection against whom? Protection against the state. The Bill of Rights governs the relationship between the individual and the state. Its concern is not the relation between individuals, between a private individual and other individuals. What the Bill of Rights does is to declare some forbidden zones in the private sphere inaccessible to any power holder. (Sponsorship Speech of Commissioner Bernas , Record of the Constitutional Commission, Vol. 1, p. 674; July 17, 1986; Emphasis supplied) The constitutional proscription against unlawful searches and seizures therefore applies as a restraint directed only against the government and its agencies tasked with the enforcement of the law. Thus, it could only be invoked against the State to whom the restraint against arbitrary and unreasonable exercise of power is imposed. If the search is made upon the request of law enforcers, a warrant must generally be first secured if it is to pass the test of constitutionality. However, if the search is made at the behest or

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initiative of the proprietor of a private establishment for its own and private purposes, as in the case at bar, and without the intervention of police authorities, the right against unreasonable search and seizure cannot be invoked for only the act of private individual, not the law enforcers, is involved. In sum, the protection against unreasonable searches and seizures cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government. Appellant argues, however, that since the provisions of the 1935 Constitution has been modified by the present phraseology found in the 1987 Charter, expressly declaring as inadmissible any evidence obtained in violation of the constitutional prohibition against illegal search and seizure, it matters not whether the evidence was procured by police authorities or private individuals (Appellant's Brief, p. 8, Rollo, p. 62). The argument is untenable. For one thing, the constitution, in laying down the principles of the government and fundamental liberties of the people, does not govern relationships between individuals. Moreover, it must be emphasized that the modifications introduced in the 1987 Constitution (re: Sec. 2, Art. III) relate to the issuance of either a search warrant or warrant of arrest vis-a-vis the responsibility of the judge in the issuance thereof (SeeSoliven v. Makasiar, 167 SCRA 393 [1988]; Circular No. 13 [October 1, 1985] and Circular No. 12 [June 30, 1987]. The modifications introduced deviate in no manner as to whom the restriction or inhibition against unreasonable search and seizure is directed against. The restraint stayed with the State and did not shift to anyone else. Corolarilly, alleged violations against unreasonable search and seizure may only be invoked against the State by an individual unjustly traduced by the exercise of sovereign authority. To agree with appellant that an act of a private individual in violation of the Bill of Rights should also be construed as an act of the State would result in serious legal complications and an absurd interpretation of the constitution. Similarly, the admissibility of the evidence procured by an individual effected through private seizure equally applies, in pari passu, to the alleged violation, non-governmental as it is, of appellant's constitutional rights to privacy and communication. 2. In his second assignment of error, appellant contends that the lower court erred in convicting him despite the undisputed fact that his rights under the constitution while under custodial investigation were not observed. Again, the contention is without merit, We have carefully examined the records of the case and found nothing to indicate, as an "undisputed fact", that appellant was not informed of his constitutional rights or that he gave statements without the assistance of counsel. The law enforcers testified that accused/appellant was informed of his constitutional rights. It is presumed that they have regularly performed their duties (See. 5(m), Rule 131) and their testimonies should be given full faith and credence, there being no evidence to the contrary. What is clear from the records, on the other hand, is that appellant refused to give any written statement while under investigation as testified by Atty. Lastimoso of the NBI, Thus: Fiscal Formoso: You said that you investigated Mr. and Mrs. Job Reyes. What about the accused here, did you investigate the accused together with the girl? WITNESS: Yes, we have interviewed the accused together with the girl but the accused availed of his constitutional right not to give any written statement, sir. (TSN, October 8, 1987, p. 62; Original Records, p. 240) The above testimony of the witness for the prosecution was not contradicted by the defense on cross-examination. As borne out by the records, neither was there any proof by the defense that appellant gave uncounselled confession while being investigated. What is more, we have examined the assailed judgment of the trial court and nowhere is there any reference made to the testimony of appellant while under custodial investigation which was utilized in the finding of conviction. Appellant's second assignment of error is therefore misplaced. 3. Coming now to appellant's third assignment of error, appellant would like us to believe that he was not the owner of the packages which contained prohibited drugs but rather a certain Michael, a German national, whom appellant met in a pub along Ermita, Manila: that in the course of their 30-minute conversation, Michael requested him to ship the packages and gave him P2,000.00 for the cost of the shipment since the German national was about to leave the country the next day (October 15, 1987, TSN, pp. 2-10). Rather than give the appearance of veracity, we find appellant's disclaimer as incredulous, selfserving and contrary to human experience. It can easily be fabricated. An acquaintance with a complete stranger struck in half an hour could not have pushed a man to entrust the shipment of four (4) parcels and shell out P2,000.00 for the purpose and for appellant to readily accede to comply with the undertaking without first ascertaining its contents. As stated by the trial court, "(a) person would not simply entrust contraband and of considerable value at that as the marijuana flowering tops, and the cash amount of P2,000.00 to a complete stranger like the Accused. The Accused, on the other hand, would not simply accept such undertaking to take custody of the packages and ship the same from a complete stranger on his mere say-so" (Decision, p. 19, Rollo, p. 91). As to why he readily agreed to do the errand, appellant failed to explain. Denials, if unsubstantiated by clear and convincing evidence, are negative self-serving evidence which deserve no weight in law and cannot be given greater evidentiary weight than the testimony of credible witnesses who testify on affirmative matters (People v. Esquillo, 171 SCRA 571 [1989]; People vs. Sariol, 174 SCRA 237 [1989]). Appellant's bare denial is even made more suspect considering that, as per records of the Interpol, he was previously convicted of possession of hashish by the Kleve Court in the Federal Republic of Germany on January 1, 1982 and that the consignee of the frustrated shipment, Walter Fierz, also a Swiss national, was likewise convicted for drug abuse and is just about an hour's drive from appellant's residence in Zurich, Switzerland (TSN, October 8, 1987, p. 66; Original Records, p. 244; Decision, p. 21; Rollo, p. 93). Evidence to be believed, must not only proceed from the mouth of a credible witness, but it must be credible in itself such as the common experience and observation of mankind can approve as

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probable under the circumstances (People v. Alto, 26 SCRA 342 [1968], citing Daggers v. Van Dyke, 37 N.J. Eg. 130; see also People v. Sarda, 172 SCRA 651 [1989]; People v. Sunga, 123 SCRA 327 [1983]); Castaares v. CA, 92 SCRA 567 [1979]). As records further show, appellant did not even bother to ask Michael's full name, his complete address or passport number. Furthermore, if indeed, the German national was the owner of the merchandise, appellant should have so indicated in the contract of shipment (Exh. "B", Original Records, p. 40). On the contrary, appellant signed the contract as the owner and shipper thereof giving more weight to the presumption that things which a person possesses, or exercises acts of ownership over, are owned by him (Sec. 5 [j], Rule 131). At this point, appellant is therefore estopped to claim otherwise. Premises considered, we see no error committed by the trial court in rendering the assailed judgment. WHEREFORE, the judgment of conviction finding appellant guilty beyond reasonable doubt of the crime charged is hereby AFFIRMED. No costs. SO ORDERED.