ISABEL G. CABUNGCAL, ASSISTED BY HER HUSBAND, JUAN CABUNGCAL, AND SOCORRO DE PAEZ, ASSISTED BY HER HUSBAND, EMILIANO PAEZ, PETITIONERS?APPELLANTS, VS. TEOFISTO M. CORDOVA, MAYOR…

Separate appeals from an order and a decision of the Court of
First Instance of Negros Occidental in two rela­ted
cases, Civil Cases Nos. 5186 and 7544 of said court.  In G. R. No. L-24794, appellants have
appealed from the order in Case No. 5186, dated April 27, 1965, holding that
“ya no existen fundamentos legales para obligar al demandado alcalde de la Ciudad de
Bacolod para que cumpla con la sentencia dictada en esta causa” which was for
said Mayor to conduct a lottery to determine to whom to award the right to
purchase a lot belonging to said City then being allocated to
occupants-applicants pursuant to its Ordinance No. 13, Series of 1959.  G. R. No. L-24879, in turn, is an appeal from
the judgment in Case No. 7544 dis­missing a complaint seeking the annulment of
the award made by the same Mayor of the said lot to defendant-appel­lee Daisy Gustilo, as well
as the pertinent judgments and orders, respectively, of the City Court in its
Civil Case No. 2093 and the Court of First Instance of Negros
Occi­dental in its Civil Case No. 5283 which not only decreed the ejectment of appellants from the same lot but also or­dered
the execution of the said judgment of ejectment on
the ground that the same had already become final and executory.

These cases call for the proper interpretation and construction
of the following provisions of Ordinance No. 13, Series of 1959 of the City of Bacolod relative to the manner of
awarding and selling to occupants and applicants lots in the so-called Bacolod City RFC Subdivision acquired by said city from the
Rehabilitation Finance Corporation:

“Award.  – In the award
or sale of any and all of the above subdivision lots, the following rules,
priority or preference shall be strictly observed:

“a) Preferential right to buy shall be granted to actual occupant
or occupants of the respective lot or lots as herein­after in this section
defined.  In the ab­sence of actual
occupant or occupants the award to buy shall be granted on a first come first
served basis.  By actual occupant or
occupants is meant those who were actually having a house on the lot or lots
concerned at the time the City of Bacolod has
formally made known, in writing, of its desire to acquire this lot from the
Reha­bilitation Finance Corporation (RFC).

“b) x       x       x         x          x

“c) Except side-lots bordering Lacson and
Burgos Streets, there shall be, at most, two awardees to a lot having 251
square me­ters or more in area who shall divide the lot share and share alike;
Provided, however, that, should there be but two occupants as understood in
subparagraph (b) hereinabove im­mediately preceding, they shall, upon proper
applications made in accordance with Section ‘7’ hereof, be deemed and
considered the awardees of that particular lot who shall divide the same share
and share alike; Provided, further, that, should there be three or more
occupants claim­ing preferences to one lot the two a­wardees to the same shall
have to be determined by lottery among them; Provided, nevertheless, that, in
cases where one of the three or more occupants actually occupies at least
one-half of the lot, said occupant shall thereby be deemed and considered as
one of the two awardees, the remaining half to be determined by lottery among
the other occupants; Provided, finally, that in no case shall there be more
than one (1) awardee with respect to side-lots
bordering Lacson and Burgos Streets and should there
be more than one claimant in and over a particular one lot, the  award to only one shall be determined by
lottery.  However should one of the
several occupants claiming preferences occupy or possess at least two-thirds
(2/3) of a particular lot bordering these streets, said occupant shall thereby
upon application duly made, be deemed and considered the awardee
of the particular lot to the exclusion of all other occupants of the same.  The award herein shall always be subject to
requirements contained, made and provided, in Article IV, Section 9, and
Article V, Section 5, paragraph (c) of Ordinance No. 140, Series of 1957,
otherwise known as the Zoning Ordinance of the City of Bacolod.” [Underscoring
supplied]

In the particular lot herein in question, Lot No. 379­B-40,
containing 289 square meters, there were admittedly several occupants, namely,
appellants Isabel G. Cabungcal, married to Juan Cabungcal, and Socorro Paez,
married to Emiliano Paez,
and Pedro Hablo and Apolonia
Bolivar and appellee Daisy Gustilo
actually having their respective houses thereon “at the time the City of Bacolod (has) made known, in writing, (of) its desire to
acquire this lot from the Rehabilitation Finance Corporation.” It is
undisputed that each of them occupied varying areas within said lot as
follows:  the Cabungcals
occupied 36 square meters, the Paezes 36, Hablo 33, Bolivar 14 and Gustilo
170.  Daisy Gustilo
fil­ed her application to purchase on June
3, 1958, the Cabung­cals on June 4, 1958 and the Paezes on June 9,
1958.  There is no showing as
to when the others filed their applications; anyway, their applications are not
involved here.

Claiming that “he could award the lot without holding a
lottery because petitioners, in their letters to the City Council of Bacolod (Exhibit A-4) and interview or conference with the
City Mayor of Bacolod (Exhibit A-5), reiterated the
desire to buy only the parts of the lot, actually occupied by their houses and
did not ask for the holding of a lottery or raffle and that he was empowered by
sec. 6 of the ordinance to implement its provisions when the sale of the lot is
not covered by the provisions of the ordinance”, on November 10, 1958, the
Mayor awarded the lot to Gustilo.  (Cabungcal et als. vs. Cordova etc. et als., G.
R. No. L-16934, 11 SCRA 584), reason for which, the Cabungcals
and the Paezes filed Civil Case No. 5186 to annul
said award and to compel the Mayor to adhere to and comply with the
ordinance.  They won in the Court of
First Instance of Negros Occidental whose de­cision
was affirmed by this Court on July 31,
1964 in the case just cited.

In apparent obedience to the said decision of this Court, on March 3, 1965, the Mayor notified the
parties, the Cabungcals, Paezes
and Gustilo, that to determine the sole awardee of the lot in question, a lottery would be held in
his office on March 16, 1965.  On said date, however, Gusti­lo
presented her objection to the holding of the lottery on the ground that she
had already acquired the portion occu­pied by Bolivar of 14 square meters on
December 8, 1958 and that occupied by Hablo of 33
square meters on September 25, 1959 and that insofar as that occupied by the Cabungcals of 36 square meters, the same was delivered to
her by virtue of a writ of execution of a final judgment of ejectment
and a sub­sequent order of demolition dated January 20, 1965 of the Court of
First Instance of Negros Occidental,^[1]
and that consequently, being already the occupant of more than 2/3 of the lot
in dispute, under the ordinance, she should be deem­ed and considered the awardee thereof to the exclusion of all the other occupants
of the same.  The Mayor found Gustilo’s objection well taken, refused to conduct any
lottery and, accordingly, made a report to the court a quo of his
resolu­tion.  (Manifestation, pp. 43-45,
Record on Appeal) Whereupon, the said court issued the appealed order reading
as follows:

“A U T O

“De acuerdo con la sentencia dictada en esta causa que
ya ha quedado firme y ejecutoria, el Juzgado, por orden
de 13 de Febrero de 1965, ordeno
al de­mandado alcalde de la
Ciudad de Baco­lod para que proceda a celebrar
una rifa al objeto de determinar a quien de las reclamantes
se debe de adjudi­car el lote en cuestion y en cumpli­miento a dicha orden el referido de­mandado fijo el dia 16 de Marzo de 1965, a las 10:00 de la mañana, la celebracion de dicha rifa:  pero, de acuerdo con la manifestacion por es­crito de dicho demandado sometida a este Juzgado, la mencionada rifa ya no se llevo a cabo por el fundamento
de que la reclamante Daisy Gustilo ocupa y posee mds de dos terceras (2/3) par­tes de toda la Area del lote en cues­tion, por lo que de acuerdo con las disposiciones del articulo 3, parafo (c) de la Ordenanza No. 13, Serie de 1959,
de la Ciudad de Bacolod, la re­ferida
reclamante, Daisy Gustilo, tiene derecho a que se le declare automaticamente
adjudicataria del tantas veces mencionado lote, razon por
la cual la cuestion de la propuesta rifa se ha convertido en una cuestion aca­demica.

“Revisando las
pruebas aducidas por las partes
interesadas, las recla­mantes Isabel Cabungcal y
Daisy Gustilo, el Juzgado encuentra legalmente justi­ficada la accion del
demandado alcalde de la
Ciudad al Abstenerse en proceder
con la rifa prevista en la sentencia dic­tada en esta causa.

“POR TANTO, el Juzgado declare que ya no existen
fundamentos legales para obligar al demandado alcalde de la Ciu­dad
de Bacolod para que cumpla con la sentencia dictada en esta causa y se ordena esta causa
se de por definitiva­mente terminada.

“Asi se ordena.

“Asi se ordena.

“Ciudad de Bacolod, Abril 27, 1965.

EDUARDO D. ENRIQUEZ

Juez“

The first point raised by appellants in G. R. No. L-­24794, the Cabungcals and the Paezes, is
that of alleged res adjudicata.  It is contended that the issue of whether or
not Gustilo is the occupant of more than 2/3 of the
lot in question was already resolved in the decision of the court a quo
in the present case as affirmed by this Court in G. R. No. L-16934.  It is alleged that inasmuch as in the
separate answers of Gustilo and the Mayor, they
respect­ively alleged that Gustilo was entitled to
the award because she was actually occupying more than 200 square meters, that
is, more than 2/3 of the area of the lot in controversy, but failed to prove
said allegation, it follows that that issue was necessarily involved in said
proceeding and must be deemed resolved therein and may not, therefore, be re­opened
anymore, in the present proceeding which is only a post judgment proceeding of
execution.  In other words, con­sidering
that the order challenged herein is supposed to be an implementation of the
invoked decision of this Court (in G. R. No. L-16934), the point of appellants
is that inasmuch as this case is already in the stage of execution, the court a
quo had no authority to reopen any matter which had been litigated by
the parties before the decision.

Appellants’ premise is not exactly true.  While the allegations referred to did appear
in the answers of Gustilo and the Mayor, for reasons
which are not extant in the record, the parties evidently chose not to battle
on this issue, for in the stipulation of facts submitted jointly by them and
which served as the basis of the decision in G. R. No. L-­16934, nothing of the
pretension about Gustilo’s occupancy of more than 2/3
appears, and, on the contrary, the award made by the Mayor to Gustilo which was attached to the said stipulation of facts
and made part thereof, clearly stated that Gustilo
was occupying only 170 square meters. 
Evidently, the parties adjusted the issue to the actual incontrovertible
facts, for these were to the effect that whereas, the stipu­lation of facts is
dated July 3, 1959, the
renunciation of Hablo took place only on September 25, 1959.  (pp. 14-15, Ap­pellee
Gustilo’s Brief.) Clearly, therefore, the decision in
G. R. No. L-16934 cannot be deemed to have resolved the issue in question.  In fact, as may be seen from the deci­sion of
this Court, and as earlier stated herein, the only contention of the Mayor
passed upon in that decision was his” claim that he could award the lot
without holding a lot­tery because petitioners (meaning appellants herein), in
their letters to the City Council of Bacolod (Exhibit
A-4) and interview and conference with the City Mayor of Bacolod
(Exhibit A-5), reiterated their desire to buy only the parts of the lot
actually occupied by their houses and did not ask for the holding of a lottery
or raffle; and that he was empowered by section 6 of the ordinance to implement
its provisions when the sale of the lot is not covered by the provisions of the
ordinance”, ( 11 SCRA 584, 588) and nothing was said therein about the
issue of whether or not Gustilo was already occupying
more than 2/3 of said lot.  Accordingly,
appellants’ first assignment of error in G. R. No. L-24794 is overruled.

The rest of the assignment of errors revolves around appellants’
position that since appellee Gustilo
was admit­tedly occupying only 170 square meters or less than 2/3 of the lot
when she applied on June 3, 1958,
it is immaterial to the application of the above-quoted provisions of the
ordinance that she subsequently acquired the additional a­reas in
question.  In fact, appellants’ point is
that, un­der the ordinance, it is the area being occupied by the parties
“at the time the City of Bacolod (has) formally
made known, in writing, (of) its desire to acquire this lot from the Rehabilitation
Finance Corporation (RFC)” that should control.

It is not very clear to Us that such is the intent of the
ordinance.  We are more inclined to
believe that as it is evident that the ordinance contemplates that the lot
should be awarded to only one of the occupants, in the very nature of things,
it tends to favor the one occupying the biggest portion thereof and the 2/3
requirement is just a convenient and expeditious device of accomplishing said
purpose and of avoiding possible suspicions of arbitrariness and favoritism,
hence, a substantial compliance therewith would suffice.  Surely, to demand the exact computation of
the measurement of the areas respectively occupied by each occupant up to the
last square inch would be absurd.  And as
to the date of occupancy, We are not convinced that the wording of the
ordinance now before Us excludes the possible construction that the date of
reference is the date of the award, which is as consistent a construction as
any other with the primordial purpose of the same of making the award to the
occupant of the largest area.  Appellants
themselves admit that the phraseology of the ordinance is susceptible of-‘this
interpretation.  On pages 25-26 of their
brief, appellants point out:

“We began this discussion by the hypothetical proposition that
to be exempted from the raffle, the applicant must possess 2/3 of the lot on
the date the application to buy is filed. 
This is because of the absence of the phrase ‘on the date Bacolod City
made known its desire to acquire this RFC lot’ in paragraph c) so that the said
paragraph c) may be interpreted in several ways.  It could mean that the applicant, to be
exempted, must possess or occupy the 2/3 either:

“(1) on the day Bacolod City
made known its desire to acquire the RFC lot; or

“(2)  on the day of the filing of the application to
buy; or

“(3)  on 
the day of making of the  award;
or

“(4)  on 
the day of the making of  deed of
sale; or

“(5)  on any date that possession or occupation of
the 2/3 or more of the lot actually takes place.” [Underscoring supplied]

In any event, to consider the date of the award as the date of
reference is not an unreasonable construction of the ordinance, particularly
when it is considered that 2/3 of 289 square meters, the area of the whole lot,
is 192 2/3, and as early as December 8, 1958, appellee
Gustilo was al­ready occupying 170 square meters, her
originally occupied area, plus 14 square meters (acquired from Apolonia Bolivar) or a total of 184 square meters, which is
only 8 2/3 square meters short of the required area, not to speak anymore of
the 33 additional square meters she acquired from Hablo
as early as September 25, 1959.  And when
it is considered further that as paragraph (a) of section 3 of the orginance is worded, it is important only that the
applicant should actually have a house on the lot, which appellee
Gustilo did have, she may be deemed as having
substantially fulfilled the requisites of the said ordinance.

Since the relief prayed for in the complaint below is basically
for a writ of mandamus, and We find that appel­lants’ right is not clear, much
less indubitable, We hold that appellants’ appeal in G. R. No. L-24794 cannot
be sustained.

With this result the issues in G. R. No. L-24879 are now moot and
academic.  The purpose of the action
therein is, at bottom, to nullify the award made to appellee
Gustilo on November
10, 1958 which has already been set aside in G. R. No.
L-16934.  Of course, there are therein
the issue also of the validity of the judgment in favor of appellee
Gustilo in the ejectment
case filed by her against appel­lants, the Cabungcals,
based on her title T.C.T. 17115, acquired in consequence of the November 10,
1958 award, as well as the issue also of the validity of the writ of exe­cution
and the order of demolition issued pursuant to said judgment.  As already stated, in view of Our decision in
G. R. No. L-24794, under which, in effect, We hold that the award to appellee Gustilo of the lot in
question would not be violative of the Ordinance 13,
series of 1959, of the City of Bacolod,
it will serve no useful purpose to go into the merits of the issues in G. R.
No. L-24879.  Not that We have not gone
over the records and the contentions of the parties therein; in fact, We have
done so, and, on the whole, We are satisfied there do not exist sufficient
grounds to disturb the actuations and judgment appealed from.

IN VIEW OF ALL THE FOREGOING, the judgment of the court a
quo dismissing the complaint in its Civil Case No. 7544 is
affirmed.  Affirmed also is its appealed
order of April 27, 1965 in
its Civil Case No. 5186.  No costs in
both cases.

Concepcion, C.J., Dizon,
Makalintal, Zaldivar,
Sanchez, Ruiz Castro, Fernando, Capistrano, and
Teehankee, JJ., concur.

Reyes, JBL, J., on leave.

^[1]
The judgment, writ and order mentioned are the subject of G. R. No. L-24879
which is also being decided herein.