BENITO SYMACO, PETITIONER AND APPELLEE, VS. HON. PATERIO AQUINO, ETC., RESPONDENT AND APPELLANT.

Paterio Aquino, Municipal Mayor of Malabon, Rizal, has interposed
this appeal from the decision of the Court of First Instance of Rizal
(in Civil Case No. 4746), commanding him to issue immediately a
building permit to petitioner Benito Symaco.

On November 4, 1957, petitioner filed with the above-mentioned court a petition praying, inter alia, for a writ of mandamus to compel respondent Mayor to issue to him (petitioner) a building permit. To this petition, respondent^[1]
filed his answer on December 3, 1957. The issues having been joined,
the parties submitted a “Stipulation of Facts” which, in so far as
pertinent, reads as follows:

“STIPULATION OF FACTS

* * * * * * *

“4. That petitioner was on May 22, 1957, and is
still up to the present, the registered owner of a certain lot at Calle
Gen. Luna, Malabon, Rizal, said lot more technically designated as ‘Lot
20 parcel 2 of plan Pse-10928, G.L.R.O. Record No. 9268, situated in
the Barrio of Tulay, Municipality of Malabon, Province of Rizal, under
petitioner’s Transfer Certificate of Title No. 35160, Rizal Registry of
Deeds * * *.

“5. That on May 22, 1957, petitioner filed an
application for building permit with the Office of the Mayor of
Malabon, particularly seeking authority to repair the eaves and
partitions of petitioner’s house of strong materials located at Gen.
Luna Street, Malabon, Rizal; * * *.

“6. That on May 23, 1957,
the Municipal Mayor granted or issued a permit to the petitioner herein
pursuant to the application filed above-mentioned, * * *.

“7.
That on July 2, 1957, Mr. Carlos R. Mendoza, a duly appointed building
inspector of the Municipality of Malabon, and acting under the orders
and direction of respondent, wrote a letter to herein petitioner
informing the latter that he should file the necessary building permit
for the construction of a new building, because as per ocular
inspection conducted by the said building inspector, it had been noted
and found out that instead of mere repairs of the eaves and partitions
of the old building of herein petitioner, as stated in the application
and the permit thus granted, the old building was demolished and a new
one was then being constructed, * * *.

* * * * * * *

“10. That pursuant to the said letters dated July 2,
1957 (Annex ‘F’) and July 8, 1957 (Annex ‘H’), herein petitioner
applied or filed a written application on July 29, 1957 with the
District Engineer of Rizal for the necessary permit to construct a new
building, * * *.

* * * * * * *

“12. That acting on petitioner’s application (Annex
T), Mr. Diego An, Chief of Miscellaneous Survey and Investigation,
Highway District Engineer’s Office, investigated petitioner’s
application and, on July 30, 1957, said Mr. An submitted his findings
and recommendation to the Highway District Engineer, * * *.

“13.
That on August 1, 1957, the Highway District Engineer endorsed Mr.
Diego An’s report (Annex ‘J’) to the office of the Mayor of Malabon, *
* *.

“14. That on July 1, 1957, there was filed a civil
action for forcible entry, with prayer for preliminary injunction,
against herein petitioner by A. M. Raymundo and Company before the
Justice of the Peace Court of Malabon, docketed as Civil Case No. 1390,
the subject matter of which covered or concerned a portion of the
parcel of land on which the petitioner was constructing his building,
and for which the latter had originally filed or applied for a building
permit on May 22, 1957 (Annex ‘D’) and again, upon order by
respondent’s Office, on July 29, 1957 (Annex T), * * *.

* * * * * * *

“18. That on August 6, 1957, Atty. Alberto de Joya,
as counsel of the A. M. Raymundo & Company, sent a letter to
respondent asking the latter to withhold issuance of the building
permit to petitioner, * * *.

* * * * * * *

“21. That on September 23, 1957, respondent wrote a
reply to the letters of counsel of herein petitioner (Annexes ‘N’ and
‘O’), advising therein that the issuance of the building permit sought
was being held in abeyance pending final determination of the ownership
of a portion of the lot wherein the building is being constructed; * *
*.”

Thereafter, the case was heard with respect to other matters not
covered by said “Stipulation of Facts” and, on July 11, 1958, the court
rendered a decision which, in part, states:

“It is the opinion of the Court that the ground upon
which the respondent Mayor refused to give the building permit was
without any basis in law, because once the applicant has fulfilled all
the requirements necessary before a building permit could be issued,
his duty becomes ministerial and it is incumbent upon him to issue the
same.

“The stipulation of facts states that the applicant is
the owner of the property in question. The A. M. Raymundo & Company
questions the ownership of a portion of the land on which the building
was being constructed for which the building permit had been applied
for by petitioner. This Court believes that this should not be a ground
on the part of the respondent to refuse the issuance of the building
permit. It is very reasonable to believe that the petitioner is the
owner of the property because he has a torrens title over the same.
What will happen if the Court should finally decide in favor of the
petitioner to the effect that he is the exclusive owner of the property
in question? The petitioner would suffer damages, knowing as we do that
it takes time to finish litigations of this nature. On the other hand,
if the petitioner is allowed to build, no damages against the
third-party (A. M. Raymundo & Company) will result, and the only
one who will suffer damages in case of adverse decision will be the
petitioner himself who has to remove the building should the Court find
that the land upon which it stands does not belong to him.

* * * * * * *

“IN VIEW OF THE FOREGOING, let the writ of mandamus
issue, directing, ordering and commanding the respondent Mayor to issue
immediately the building permit to the petitioner. The claim for
damages is hereby dismissed. No pronouncement as to costs.”

The only question to be determined in this appeal is whether the court a quo committed an error in granting the writ of mandamus to herein petitioner.

Section 3, Rule 67, of the Rules of Court, provides:

“SEC. 3. Petition for mandamus.—When any tribunal, corporation, board, or person unlawfully
neglects the ‘performance of an act which the law specifically enjoins
as a duty resulting from an office, trust, or station, or unlawfully
excludes another from the use and enjoyment of a right or office to
which such other is entitled, and there is no other plain, speedy, and
adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper court
alleging the facts with certainty and praying that judgment be rendered
commanding the defendant, immediately or at some other specified time,
to do the act required to be done to protect the rights of the
petitioner, and to pay the damages sustained by the petitioner by
reason of the wrongful acts of the defendant, with costs.” (Emphasis
supplied.)

Under this provision of the Rules of Court, to be entitled to a writ
of mandamus, petitioner must show (1) that a tribunal, corporation,
board, or person unlawfully neglects the performance of an act which
the law specifically enjoins as a duty resulting from an office, trust,
or station, or unlawfully excludes petitioner from the use and
enjoyment of a right or office to which he’ is entitled, and (2) that
there is no other plain, speedy, and adequate remedy in the ordinary
course of law.

Article I of Ordinance No. 20, series of 1941, of the Municipal Council of Malabon, Rizal, states:

“ARTICLE I.—Every owner, tenant, manager or
contractor, shall, before beginning the construction or repair of any
edifice, obtain the necessary permit from the Municipal Mayor, stating in the application the name of the owner, location of the building, kind of materials to be used, and the floor area.” (italics supplied)

The above-quoted provision of the ordinance requires the applicant
for a building permit to static in his application the name of the
owner, the location of the building, the kind of materials to be used,
and the floor area thereof. Said requirement, it appears, was complied
with by petitioner. Having thus complied with said requirement, was it
a discretionary or ministerial duty on the part of respondent to issue
the permit in question?

A purely ministerial act or duty, in contradistinction to a
discretional act, is one which an officer or tribunal performs in a
given state of facts, in a prescribed manner, in obedience to the
mandate of legal authority, without regard to or the exercise of his
own judgment, upon the propriety or impropriety of the act done. If the
law imposes a duty upon a public officer, and gives him the right to
decide how or when the duty shall be performed, such duty is
discretionary and not ministerial. The duty is ministerial only when
the discharge of the same requires neither the exercise of official
discretion nor judgment. (Lamb vs. Phipps, 22 Phil., 456.^[2])

We agree with the lower court that the moment petitioner complied
with the requirements under said ordinance for the issuance of a
building permit, the petitioner became entitled to it and the
respondent’s duty became ministerial and it was, thereupon, incumbent
upon him to issue the same. There is nothing in the ordinance which
grants respondent the discretion to refuse the issuance of a building
permit to an applicant owner, tenant, manager, or contractor. All that
the ordinance requires is that said applicant must state the data
mentioned therein. Respondent’s failure, therefore, to perform an act
which the ordinance enjoins him to do, upon compliance with the
conditions therein provided, entitled petitioner to the writ of
mandamus prayed for. (Hoey vs. Baldwin, 1 Phil., 551; Lamb vs. Phipps, 22 Phil., 456; Zobel vs. City of Manila, 47 Phil., 169; Compania Gral. de Tabacos vs. French, et al., 39 Phil., 34; Ynchausti & Co. vs. Wright, 47 Phil. 866. )^[3]

Moreover, respondent’s refusal to issue a building permit to
petitioner was premised on the fact that a portion of petitioner’s lot
was still the subject of a forcible entry case filed by A. M. Raymundo
& Co. against petitioner, which is still pending in the Court of
First Instance. This, in our opinion, was not sufficient reason for the
denial of the building permit to petitioner. The matter, to say the
least, was a purely private affair or dispute between petitioner and
said company, which did not, in any way, concern respondent. As the
lower court stated, “if the petitioner is allowed to build, no damages
against the third-party (A. M. Raymundo & Company) will result, and
the only one who will suffer damages in case of adverse decision will
be the petitioner himself who has to remove the building should the
court find that the land upon which it stands does not belong to him.”

Respondent claims that petitioner was not entitled to the writ of
mandamus, because he had other plain, speedy, and adequate remedy in
the ordinary course of law, namely, that provided in Section 2188 of
the Revised Administrative Code, which reads as follows:

“SEC. 2188. Supervisory authority of provincial governor over municipal officers.—The
provincial governor shall receive and investigate complaints made under
oath against municipal officers for neglect of duty, oppression,
corruption, or other form of maladministration of office, and
conviction by final judgment of any crime involving moral turpitude.
For minor delinquency, he may reprimand the offender and if more severe
punishment seems to be desirable, he shall submit written charges
touching the matter to the provincial board, furnishing a copy of such
charges to the accused either personally or by registered mail, and he
may in such case suspend the officer (not being the municipal
treasurer) pending action by the board, if in his opinion the charge be
one affecting the official integrity of the officer in question. Where
suspension is thus effected the written charges against the officer
shall be filed with the board within five days.”

But the remedy which the above-quoted provision gives is neither
plain, speedy, nor adequate. Its primary object, it will be noted, is
the removal, suspension, or other disciplinary action of the erring
municipal officer, rather than to compel the performance of a legal
duty.

It has been held that the other remedy that would bar mandamus, must
not only be adequate in the general sense of the term, but also
specific and appropriate to the circumstances of the particular case.
(34 Am. Jur. 838, and cases cited.) It must be a remedy that will be
efficacious to afford relief upon the very subject matter involved, and
to enforce the right or performance of the duty in question. (Fremont vs. Crippen, 10 Cal. 211, 70 Am. Dec. 711; State ex rel. Pierce vs. Slusher, 117 Or. 498, 244 P. 540, 58 ALR 114. )^[4]
It cannot be said to be fully adequate, unless it is commensurate with
the necessities and rights of the complaining party under all the
circumstances of the case, reaches the end intended, and actually
compels performance of a duty. (Commercial Nat. Bank vs. Robinson, 66 Okla. 235, 168 P. 810, LRA 1918C 410; Eureka Pipe Line Co. vs.
Riggs, 75 W. Va. 353, 83SSE 1020, Ann. Cas. 1918 A 995.) In fine, the
remedy which will preclude mandamus must be equally as convenient,
complete, beneficial, and effective as would be mandamus, and be
sufficiently speedy to prevent material injury. (34 Am. Jur. 839.)

For all the foregoing, we are of the opinion and so hold, that the court a quo did not err in granting the writ of mandamus in question to petitioner herein.

Wherefore, the decision appealed from is affirmed, with costs. So ordered.

Paras, C. J., Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Endencia and Gutierrez David, JJ., concur.

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^[1] Represented by the Assistant Provincial Fiscal of Rizal.

^[2] See also 27 Words and Phrases (Perm. Ed.) 253-256, and cases therein cited.

^[3] See also Tan C. Tee & Co. vs. Wright, 53 Phil., 194; Batung-bakal vs. NDC, 93 Phil., 182; 49 Off. Gaz., 2290; Bernardo vs. Pascual, 93 Phil., 345, 49 Off. Gaz., 2261.

^[4] See also Com. ex trel. Schaffer vs. Wilkins, 271 Pa. 523, 115 A. 887, 19 ALR 1379.