G.R. No. L-26068. March 29, 1971
CITY OF CEBU, PETITIONER, VS. HON. FELIMON R. CONSOLACION, JUDGE OF THE COURT OF FIRST INSTANCE OF CEBU, BRANCH VII, RESPONDENT.
DIZON, J.:
This is an original action for certiorari, prohibition,
and mandamus, with a prayer for the issuance of a Writ of Preliminary
Injunction, filed by the City of Cebu against the
Hon. Felimon R. Consolacion,
Judge of the Court of First Instance of Cebu, Branch
VII. The material facts alleged in the
petition are as follows:
On August 6, 1965,
a complaint was filed in the Court of First Instance of Cebu
by Gov. Rene Espina, the Province
of Cebu,
and the Municipalities of Barili, Ronda, Bogo and others, against Mayor Sergio Osmeña,
Jr., City of Cebu,
Priscillano Almendras, Nazario Pacquiao and other public
officials. Although the complaint was
entitled “for injunction, etc.,” the action was in reality one to
declare “Resolution No. 186 of the Province
of Cebu
and the Deed of Donation executed pursuant thereto, null, void and inexistence
or in the alternative, to order its annulment and revocation for breach of its
Principal Terms and Conditions,” (Civil Case No. 238-BC).
Upon the filing of the complaint, the same was submitted to the
respondent judge who, in accordance with the petition for the ex parte issuance of a Writ of Preliminary Injunction,
issued the aforesaid writ enjoining the defendants named in the complaint to
refrain “from selling, transferring,
or in any way disposing of any of the 210 province-owned lots subject matter of
the questioned donation and from executing any deed of sale, transfer,
conveyance or confirmation purporting to convey title to any of the lots
referred to in favor of any person, firm or corporation.”
On August 16, 1965,
one of the defendants – the herein petitioner
City of Cebu – filed a motion to dismiss the
complaint on the grounds of: (1)
plaintiffs’ lack of legal capacity to sue, and (2) improper venue.
After Mayor Sergio Osmeña, Jr.
automatically ceased to be Mayor of the City of Cebu upon the filing of his certificate
of candidacy for senator on September
9, 1965, Carlos J. Cuizon was substituted
in his place in his capacity as Mayor of the City of Cebu. Thereafter he filed a similar motion to
dismiss the complaint citing in support thereof Our
decision in Norberto Lumpay vs. Hon. Segundo Moscoso, G.R. L-14723 (promulgated on May 29, 1959).
On December 1, 1965,
the respondent judge denied the motion to dismiss and ordered the defendants to
answer the complaint within the reglementary period.
On December 16, 1965,
the City of Cebu
filed its answer assailing in one of the affirmative defenses set forth therein
the authority of the respondent judge to take cognizance of the case.
On January 31, 1966,
petitioner City
of Cebu filed a motion for the
reconsideration of the respondent judge’s order of December 1, 1965 insofar as it denied the transfer of the
case to the proper branch of the Court of First Instance stationed at Cebu City. This motion was denied by the respondent
judge on February 9, 1966,
and subsequently, set the case for pre-trial.
According to the petition at bar, the Seventh Branch of the Court
of First Instance of Cebu presided over by the
respondent judge, is a new branch created by Rep. Act 2613, amending the Judiciary
Act of 1948, providing for eight judges to preside over the Court of First
Instance of the Province of Cebu and the City of Cebu, six of them to be stationed in the City of Cebu, and one each of the remaining two in the
Municipalities of Barili and Bogo. The law just mentioned, however, did not
determine the particular municipalities over which Branch VII of the Court of
First Instance of Cebu would exercise judicial
authority until the Department of Justice issued under date of August 20, 1962
Administrative Order 302, pursuant to Sec. 27 of the Judiciary Act of 1948,
which provided that said branch would take cognizance of cases coming from the
twelve municipalities therein mentioned, all situated on the western part of
the Province of Cebu.
Upon the foregoing facts, petitioner contends that inasmuch as
the 210 lots subject matter of the resolution of the Provincial Board of Cebu and of the Deed of Donation sought to be annulled were
within the territorial limits of the City of Cebu,
Civil Case No. 238-BC should be taken cognizance of by any of the judges
presiding over any of the six branches of the Court of First Instance of Cebu stationed in said city; that, as the respondent judge
presided over Branch VII stationed in the Municipality of Barili,
he had no authority to take cognizance of said case and, as a result, all his
actuations therein are void.
We have noticed that Administrative Order 302 attached as Annex
B to the petition, after enumerating the different municipalities and
apportioning among the eight branches of the Court of First Instance of Cebu the cases filed therein, says “that whenever the
interest of the administration of justice so requires, any judge of the eight
branches of the Court of Cebu may try any case coming
from any municipality, with the previous approval of this Department.” In
plain words, with the previous approval of the Department of Justice, the
respondent judge would be competent to take cognizance of Civil Case No.
238-BC. In this connection, We find that nowhere in the petition before Us is it
alleged that the respondent judge had taken cognizance of said case and issued
orders therein without previous approval of the Department of Justice. We deem an allegation to this effect as vital
and indispensable for the petition under consideration to state a case of lack
of authority on the part of the respondent judge because, without such
allegation, the presumption must be that His Honor was acting regularly, and
that official duty in connection with the transfer of the case from any of the
branches of the Court of First Instance of Cebu
stationed in Cebu City to Branch VII stationed in the
Municipality of Barili had been duly complied with.
We have arrived at the above conclusion on the strength of the
following considerations:
Whether plaintiffs’ action subject of Civil Case No. 238-BC is a personal
action or a real action, it cannot be denied that any of the
branches of the Court of First Instance of the Province of Cebu,
whether stationed in the City of the same name or in any of the municipalities
of the province, would be proper venue for its trial and determination, it
being admitted that the parties are residents of the Province of Cebu and the lands in question are within its territorial
limits. It is only by reason of the
apportionment of cases effected through Administrative Order No. 302 that it
may be claimed that the Seventh Branch stationed in the Municipality
of Barili
has no authority to take cognizance of the aforesaid case. But, as already adverted to, said Executive
Order recognizes the authority of any of the branches of the Court of First
Instance of Cebu to take cognizance of any case
coming from any City or Municipality of the province, if the interest of the
administration of justice so demands and the approval of the Department of
Justice had been previously secured. It
is clear therefore that, for a party who assails the authority of Branch VII of
the Court of First Instance of Cebu to take
cognizance of Civil Case No. 238-BC, said party must allege affirmatively that
the approval of the Department of Justice had not been previously secured and
that the exercise of authority over the case by the aforesaid branch was not
demanded by the interest of the administration of justice.
WHEREFORE, the petition under consideration is dismissed,
with costs.
Concepcion, C.J., Reyes, Makalintal, Zaldivar, Ruiz Castro,
Fernando, Teehankee, Barredo, Villamor, and
Makasiar, JJ., concur.