ESTATE OF GREGORIA FRANCISCO, HEREIN REPRESENTED BY SILVESTRE F. TAN, ADMINISTRATOR, PETITIONER, VS. HON. COURT OF APPEALS, HON. SALVADOR A. MEMORACION, IN HIS CAPACITY AS PRESI…

Litigated herein is a quonset building situated in Port Area,
Strong Boulevard, Isabela, Basilan, which was ordered demolished by respondent
Municipal Mayor, Benjamin Valencia. Respondent municipal employees implemented
the demolition, for which
reason they are also impleaded.

The quonset was constructed by the American Liberation Forces in
1944. It was purchased in 1946 by Gregoria Francisco, who died in
1976. It stands on a lot owned by the
Philippine Ports Authority and faces the municipal wharf. By virtue of Proclamation No. 83 issued by
President Elpidio Quirino, said land was declared for the exclusive use of port
facilities.

On 10 January 1989, the Philippine Ports Authority (Port of
Zamboanga) issued to Tan Gin San, surviving, spouse of Gregoria Francisco, a
permit to occupy the lot where the building stands for a period of one (1)
year, to expiree on 31 December 1989. The permittee was using the quonset for the storage of copra.

On 8 May 1989, Respondent Mayor, through respondent Municipal
Action Officer, notified Tan Gin San by mail to remove or relocate its quonset
building, citing Zoning Ordinance No. 147 of the municipality; noting its
antiquated and dilapidated structure; and stressing the “clean-up campaign
on illegal squatters and unsanitary surroundings along Strong Boulevard.”
This was followed by another letter of 19 May 1989 of the
same tenor.

Since the notifications remained unheeded by petitioner,
Respondent Mayor ordered the demolition on 24 May 1989.

Aggrieved, petitioner sought a Writ of Prohibition with
Injunction and Damages before the Regional Trial Court of Basilan, Branch 2
(docketed as S.P. No. 4).

On 7 August 1989, the Trial Court^[1]
denied the Writ of Prohibition and upheld the power of respondent Mayor to
order the demolition without judicial authority, adverting to Zoning Ordinance
No. 147 of the Municipality of Isabela, Basilan. Petitioner duly interposed an appeal.

On 6 September 1989, petitioner’s quonset building was completely
demolished (Rollo, p. 49). In its place
sprang shanties and nipa huts, photographs of which have been attached to
petitioner’s Memorandum.

On 25 January 1990, the Court of Appeals (in CA-G.R. SP No.
18822)^[2]
initially reversed the Trial Court and issued a Writ of Prohibition. It ruled that Respondent Mayor was not
vested with power to order summarily, and without any judicial proceeding, the
demolition of the quonset building, which was
not a nuisance per se, and that petitioner is in legal
possession of the land on which the building stands by virtue of the permit
issued by the Philippine Ports Authority (Zamboanga Province). The restoration to petitioner of the
building materials removed upon demolition, and the payment to it of attorney’s
fees, of P10,000.00, were also
ordered.

However, upon reconsideration
sought by respondent officials, Respondent Court^[3] reversed itself on 13 June 1990 stating that
“although Municipal Mayor Valencia initially issued an order of demolition
without judicial process, the
deficiency was remedied when appellant (petitioner herein) filed a petition for prohibition and injunction and was heard on oral argument
after appellees (respondent officials) filed their answer.” Respondent
Court then quashed the Writ of Prohibition and set aside the order of restitution and payment of attorney’s fees.

Petitioner’s plea for
reconsideration having been denied, it is now before us seeking a reversal.

The focal issue for
determination is whether or not
Respondent Mayor could summarily, without judicial process, order the
demolition of petitioner’s quonset building.

Respondents justify the
demolition in the exercise of police power and for reasons of health, safety
and general welfare. It also relies on
Ordinance No. 147 (CA Records, pp. 85-104) of the Municipality of Isabela. For its part petitioner consistently
denies to the Mayor such power, invoking provisions of the Local Government
Code.

Ordinance No. 147, enacted on 27 December 1977, and relied upon
by respondents, is entitled “An Ordinance Establishing Comprehensive
Zoning Regulations for the Municipality of Isabela x x x.” It is not
disputed that the quonset building, which is being used for the storage of
copra, is located outside the zone for warehouses. It is referred to in the Ordinance as a non-conforming structure,
which should be relocated. And in the
event that an immediate relocation of the building can not be accomplished,
Section 16 of the Ordinance provides:

“A certificate of non-conformance for all non-conforming uses
shall be applied for by the owner or agent of the property involved within
twelve (12) months from the approval of this Ordinance, otherwise the
non-conforming use may be condemned or removed at the owner’s expense.”

Even granting that petitioner failed to apply for a Certificate of Non-conformance, the
foregoing provision should not be interpreted as authorizing the summary
removal of a non-conforming building by the municipal government. For if it does, it must be struck down for
being in contravention of the
requirements of due process, as originally
held by the respondent Court.

Moreover, the enforcement and administration of the provisions of the Ordinance
resides with the Zoning Administrator (Article VII, Secs. 1 and 2, Ordinance
No. 147). It is said official who may
call upon the City Fiscal to
institute the necessary legal proceedings to enforce the provisions of the
Ordinance (id., Sec. 2, ibid.). And any
person aggrieved by the decision of the Zoning Administrator regarding the
enforcement of the Ordinance may appeal
to the Board of Zoning Appeals
(id., Sec. 7, ibid.).

That a summary
remedy can not be resorted to is further
evident from the penal provisions of said Ordinance, reading:

“Any person who violates any of the provisions of this ordinance
shall, upon conviction, be punished by a fine of not less
than fifty pesos (P50.00) but not more than two hundred pesos (P200.00) or by
imprisonment of not less than one (1) month but not exceeding six (6) months,
or both, at the discretion of the
Court xxx.”
(ibid., Sec. 11). [Emphasis ours].

Violation of a municipal ordinance
neither empowers the Municipal Mayor to avail
of extra-judicial remedies. On
the contrary, the Local Government Code imposes upon him the duty “to
cause to be instituted judicial proceedings in connection with the violation of
ordinances” (Local Government Code, Sec. 141 [2] [t]).

Respondents can not seek cover under the general welfare clause
authorizing the abatement of nuisances without judicial proceedings. That tenet
applies to a nuisance per se, or one which affects the
immediate safety of persons and property and may be summarily abated under the undefined law of necessity
(Monteverde v. Generoso, 52 Phil. 123 [1928]). The storage of copra in the quonset building is a legitimate
business. By its nature, it can not be
said to be injurious to rights of property, of health or of comfort of the
community. If it be a nuisance per
accidens it may be so proven in a hearing conducted for that
purpose. It is not per se
a nuisance warranting its summary abatement without judicial intervention.

“The provincial governor, district engineer or district health
officer is not authorized to destroy private property consisting of dams and
fishponds summarily and without any judicial proceedings whatever under the
pretense that such private property constitutes a nuisance. A dam or a fishery constructed in navigable
rivers is not a nuisance per se. A dam or fishpond may be a nuisance per accidens where it
endangers or impairs the health or depreciates property by causing water to become
stagnant.” (Monteverde v. Generoso, supra).

While the Sangguniang Bayan may provide for the abatement of a
nuisance (Local Government Code, Sec. 149 [ee]), it can not declare a
particular thing as a nuisance per se and order its
condemnation. The nuisance can only be
so adjudged by judicial determination.

“[Municipal councils] do not have the power to find as a fact
that a particular thing is a nuisance when such thing is not a nuisance per
se; nor can they authorize the extra judicial condemnation and
destruction of that as a nuisance which, in its nature, situation or use is not
such. These things must be determined
in the ordinary courts of law. In the
present case, … the ice factory of the plaintiff is not a nuisance per se. It is a legitimate industry …. If it be in fact a nuisance due to the
manner of its operation, that question cannot be determined by a mere
resolution of the board. The petitioner is entitled to a fair and
impartial hearing before a judicial tribunal.” (Iloilo Cold Storage v.
Municipal Council, 24 Phil. 471 [1913]).

Petitioner was in lawful possession of the lot and quonset
building by virtue of a permit from the Philippine Ports Authority (Port of
Zamboanga) when demolition was effected. It was not squatting on public land. Its property was not of trifling value. It was entitled to an impartial hearing before a tribunal authorized to
decide whether the quonset building did constitute a nuisance in law. There
was no compelling necessity for precipitate action. It follows then that respondent public officials of the
Municipality of Isabela, Basilan,
transcended their authority in abating
summarily petitioner’s quonset building. They had deprived petitioner of its property without due process of
law. The fact that petitioner filed a
suit for prohibition and was subsequently
heard thereon will not cure the defect, as
opined by the Court of Appeals, the demolition having been a fait
accompli prior to hearing and the authority to
demolish without a judicial
order being a prejudicial issue.

For the precipitate demolition, therefore, petitioner should be
entitled to just compensation, the amount of which is for the Trial Court to
determine. We are not inclined to grant
petitioner damages, however, as it
simply ignored the demand to remove or relocate its quonset building.

WHEREFORE, the judgment under review of
respondent Court of Appeals, dated 13 June 1990, is SET ASIDE; its original
Decision, promulgated on 25 January 1990, is REINSTATED; and this case is
ordered REMANDED to the Regional Trial Court of Basilan, Branch 2, for the
determination of the just compensation due petitioner for the demolition of its
quonset building.

SO ORDERED.

Paras, Padilla, Sarmiento, and
Regalado, JJ., concur.

^[1]
Judge Salvador A. Memoracion, presiding.

^[2]
Penned by Justice Conrado T. Limcaoco and concurred in by Justices Arturo B.
Buena and Jainal D. Rasul, of the Fourteenth Division.

^[3]
ibid.