G.R. No.

184478

March 21, 2012

JAIME S. PEREZ, both in his personal and official capacity as Chief, Marikina
Demolition Office, Petitioner,
vs.
SPOUSES FORTUNITO L. MADRONA and YOLANDA B. PANTE, Respondents.
DECISION
VILLARAMA, JR., J.:
Before this Court is a petition for review on certiorari under Rule 45 of the 1997 Rules of
Civil Procedure, as amended, seeking to set aside the March 31, 2008 Decision 1 and
September 10, 2008 Resolution 2 of the Court of Appeals (CA) in CA-G.R. CV. No.
83675. The CA affirmed in toto the Decision 3 of the Regional Trial Court (RTC) of
Marikina City, Branch 192 granting respondents prayer for injunction against petitioner.
The antecedents follow:
Respondent-spouses Fortunito Madrona and Yolanda B. Pante are registered owners of
a residential property located in Lot 22, Block 5, France Street corner Italy Street,
Greenheights Subdivision, Phase II, Marikina City and covered by Transfer Certificate of
Title No. 1693654 of the Registry of Deeds of Marikina. In 1989, respondents built their
house thereon and enclosed it with a concrete fence and steel gate.
In 1999, respondents received the following letter dated May 25, 1999 from petitioner
Jaime S. Perez, Chief of the Marikina Demolition Office:
Owner Judge F.L. Madrona
Lot 22 B. 5 Phase II
Green Heights[, Concepcion,] Marikina City
G./ Gng. F.L. Madrona[:]
Ito po ay may kinalaman sa bahay/istruktura na inyong itinayo sa (naturang lugar),
Marikina, Kalakhang Maynila.
Bakod umusli sa Bangketa
Ang naturang pagtatayo ng bahay/istruktura ay isang paglabag sa umiiral na
batas/programa na ipatutupad ng Pamahalaang Bayan ng Marikina na nauukol sa:
[] PD 1096
(National Building Code of the Philippines)

[ ] PD 772
(Anti-Squatting Law)
[] Programa sa Kalinisan at Disiplina sa Bangketa
[ ] RA 7279
(Urban Development and Housing Act of 1992)
[ ] PD 296
(Encroachment on rivers, esteros, drainage channels and other waterways)
[] RA 917 as amended by Section 23, PD. No. 17, DO No. 4 Series of 1987
(Illegally occupied/constructed improvements within the road right-of-way)
Dahil po dito, kayo ay binibigyan ng taning na Pitong (7) araw simula sa pagkatanggap
ng sulat na ito para kusang alisin ang inyong istruktura. Ang hindi ninyo pagsunod sa
ipinag-uutos na ito ay magbubunsod sa amin upang gumawa ng kaukulang hakbang na
naa[a]yon sa itinatadhana ng Batas.
Sa inyong kaalaman, panuntuan at pagtalima.
Lubos na gumagalang,
(Sgd.)
JAIME S. PEREZ
Tagapamahala
Marikina Demolition Office5
As response, respondent Madrona sent petitioner a three-page letter 6 dated June 8,
1999 stating that the May 25, 1999 letter (1) contained an accusation libelous in nature
as it is condemning him and his property without due process; (2) has no basis and
authority since there is no court order authorizing him to demolish their structure; (3)
cited legal bases which do not expressly give petitioner authority to demolish; and (4)
contained a false accusation since their fence did not in fact extend to the sidewalk.
On June 9, 1999, respondents received a letter 7 from petitioner requesting them to
provide his office a copy of the relocation survey on the subject property. Respondents,
however, did not oblige because it was as if petitioner was fishing evidence from them.
More than a year later or on February 28, 2001, petitioner sent another letter 8 with the
same contents as the May 25, 1999 letter but this time giving respondents ten days
from receipt thereof to remove the structure allegedly protruding to the sidewalk. This

prompted respondents to file a complaint 9 for injunction before the Marikina City RTC on
March 12, 2001.
In respondents injunction complaint, they alleged that (1) petitioners letters made it
appear that their fence was encroaching on the sidewalk and directed them to remove
it, otherwise he would take the corresponding action; (2) petitioners threat of action
would be damaging and adverse to respondents and appears real, earnest and
imminent; (3) the removal of their fence, which would include the main gate, would
certainly expose the premises and its occupants to intruders or third persons; (4)
petitioner has no legal authority to demolish structures in private properties and the laws
he cited in his letters do not give him any authority to do so; (5) respondents enjoy the
legal presumption of rightful possession of every inch of their property; (6) if petitioner
accuses them of erroneous possession, he should so prove only through the proper
forum which is the courts; (7) their fence is beside the sidewalk and the land on which it
stands has never been the subject of acquisition either by negotiation or expropriation
from the government; (8) petitioners intended act of demolition even in the guise of a
road right of way has no factual or legal basis since there is no existing infrastructure
project of the national government or Marikina City government; and (9) petitioners
letter and his intended act of demolition are malicious, unfounded, meant only to harass
respondents in gross violation of their rights and in excess and outside the scope of his
authority, thereby rendering him accountable both in his personal and official capacity.
Respondents likewise sought the issuance of a temporary restraining order (TRO) and a
writ of preliminary injunction to enjoin petitioner and all persons acting under him from
doing any act of demolition on their property and that after trial, the injunction be made
permanent. They also prayed for moral and exemplary damages and attorneys fees.
On March 14, 2001, petitioner was served the corresponding summons. 10
On March 16, 2001, the RTC issued a TRO against petitioner.11
On March 29, 2001, petitioner filed an Urgent Ex Parte Motion for Extension to File
Answer12 until April 13, 2001. It appears however that petitioners counsel failed to file
an Answer within the extended period requested. Thus, on motion 13 of respondents,
petitioner was declared in default on July 13, 2001. 14
On July 25, 2001, petitioner filed a Motion to Lift Order of Default (with Ex-Parte Motion
to Admit Answer and Notice Entry of Appearance). 15 According to petitioners new
counsel, an answer was not filed due to the former counsels voluminous work load as
lone lawyer in the City Legal Office.
On December 10, 2001, the RTC issued an Order 16 denying the motion to lift the order
of default. Aside from finding that the motion failed to include a notice of hearing, the
RTC also held that the alleged cause of delay is not excusable as voluminous work load

of the counsel cannot justify the disregard of court processes or failure to abide by the
period fixed by the rules and since the delay consisted not only a few days but over a
hundred and three days. Petitioner moved to reconsider the order but the same was
denied by the RTC in its March 6, 2002 Order.17
Petitioner thereafter filed a petition for certiorari 18 before the CA assailing the default
order. Thus, on April 18, 2002, the RTC issued an order suspending the proceedings of
the injunction case "until such time when the Petition for Certiorari shall have been
disposed of with finality."19
On August 20, 2002, the CA rendered a decision 20 dismissing the petition for certiorari
for lack of merit. Petitioner moved to reconsider the appellate courts decision, but the
motion was denied by Resolution21 dated January 30, 2003.
On September 15, 2003, the RTC issued an Order 22 dismissing the injunction complaint
without prejudice. It held that respondents "have not instituted any action before th[e]
Court showing that they are still interested in further prosecuting th[e] case" and "[i]n
accordance with Section 3, Rule 17 of the Rules of Court, the Court is constrained to
dismiss the complaint for failure of [respondents] to prosecute their complaint for an
unreasonable length of time." However, upon motion of respondents, the dismissal
order was set aside and the complaint was reinstated by Order 23 dated December 3,
2003. The RTC agreed with the observation of respondents that it was the court which
suspended the proceedings in the injunction case pending final disposition of the
petition for certiorari before the CA, and when the RTC issued the dismissal order, there
was yet no entry of judgment from the CA and so it cannot be said that the petition was
already "disposed of with finality." Respondents were then allowed to present their
evidence ex parte before the branch clerk of court.
On July 27, 2004, the RTC rendered a Decision 24 in favor of respondents. The fallo of
the RTC decision reads:
WHEREFORE, Judgment is hereby rendered in favor of the plaintiffs. As prayed for,
defendant Jaime S. Perez, Chief of the Demolition Office of Marikina City, or any person
acting for and in his behalf as well as the successors to his office, is permanently
enjoined from performing any act which would tend to destroy or demolish the perimeter
fence and steel gate of the plaintiffs property situated at Lot 22, Block 5, France Street
corner Italy Street, Phase II, Greenheights Subdivision, Concepcion, Marikina City.
Defendant is further ordered to pay the amount of Twenty Thousand (P20,000.00)
Pesos as attorneys fees and Five Thousand (P5,000.00) Pesos for the costs of suit. 25
The RTC held that respondents, being lawful owners of the subject property, are entitled
to the peaceful and open possession of every inch of their property and petitioners
threat to demolish the concrete fence around their property is tantamount to a violation

of their rights as property owners who are entitled to protection under the Constitution
and laws. The RTC also ruled that there is no showing that respondents fence is a
nuisance per se and presents an immediate danger to the communitys welfare, nor is
there basis for petitioners claim that the fence has encroached on the sidewalk as to
justify its summary demolition.
Petitioner appealed the RTC decision to the CA. On March 31, 2008, the appellate court
rendered the assailed decision affirming the RTC decision.
Hence this petition based on the following grounds:
I.
THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN
AFFIRMING
THE
ACTION
OF
THE
LOWER
COURT
IN
REINSTATING/REVIVING THE COMPLAINT FILED BY THE RESPONDENTS.
II.
THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN
AFFIRMING THE RULING OF THE LOWER COURT THAT THE
RESPONDENTS ARE ENTITLED TO PERMANENT INJUNCTION, THEREBY
RESTRAINING THE PETITIONER OR ANYONE ACTING FOR AND ON HIS
BEHALF FROM CARRYING OUT THE THREATENED DEMOLITION OF THEIR
PERIMETER FENCE AND STEEL GATE.
III.
THE COURT OF APPEALS COMMITTED A REVERSIBLE [ERROR] IN
AFFIRMING THE RULING OF THE LOWER COURT ORDERING THE
PETITIONER TO PAY THE RESPONDENTS THE AMOUNTS OF TWENTY
THOUSAND PESOS (P20,000.00) AS ATTORNEYS FEES AND FIVE
THOUSAND PESOS (P5,000.00) AS COSTS OF SUIT.26
Essentially, the issues to be resolved in the instant case are: (1) Did the trial court err in
reinstating the complaint of respondents? (2) Are the requisites for the issuance of a writ
of injunction present? and (3) Is petitioner liable to pay attorneys fees and costs of suit?
Petitioner argues that there was express admission of negligence by respondents and
therefore, reinstatement of their dismissed complaint was not justified.
We disagree.

A perusal of the respondents motion for reconsideration 27 of the order of dismissal

reveals that there was no admission of negligence by respondents, either express or
implied. Respondents only contended that (1) they were under the impression that it
would be the RTC which would issue the order to continue the proceedings once it
considers that the petition before the CA had already been disposed of with finality, and
(2) their counsels records do not show that the CA had already issued an entry of
judgment at the time the dismissal order was issued. They also only stated that they
followed up with the CA the issuance of the entry of judgment but they were just told to
wait for its delivery by mail. Petitioners imputation that respondents expressly admitted
negligence is therefore clearly unfounded.
Additionally, as correctly found by both the RTC and the CA, it did not appear that
respondent lost interest in prosecuting their case nor was their counsel negligent in
handling it. Accordingly, there was no basis for the dismissal order and reinstatement of
respondents complaint was justified.
As to the propriety of the issuance of the writ of injunction, petitioner claims that the
requisites therefor are not present in the instant case. Petitioner contends that service of
a mere notice cannot be construed as an invasion of a right and only presupposes the
giving of an opportunity to be heard before any action could be taken. He also claims
that it is clear from the records of the case that respondents concrete fence was
constructed on a part of the sidewalk in gross violation of existing laws and ordinance
and thus, they do not have absolute right over the same. According to petitioner, the
encroachment is clearly apparent in the Sketch Plan of the government geodetic
engineer as compared to the Location Plan attached to respondents complaint. He
likewise contends that the clearing of the sidewalks is an infrastructure project of the
Marikina City Government and cannot be restrained by the courts as provided in
Presidential Decree No. 1818.28 Lastly, petitioner points out that the trial court should not
have merely relied on the testimonies of respondents alleging that his men were already
in the subdivision and destroying properties on other streets to prove that there was
urgent necessity for the issuance of the writ.
We disagree.
For injunction to issue, two requisites must concur: first, there must be a right to be
protected and second, the acts against which the injunction is to be directed are
violative of said right.29 Here, the two requisites are clearly present: there is a right to be
protected, that is, respondents right over their concrete fence which cannot be removed
without due process; and the act, the summary demolition of the concrete fence, against
which the injunction is directed, would violate said right.
If petitioner indeed found respondents fence to have encroached on the sidewalk, his
remedy is not to demolish the same summarily after respondents failed to heed his
request to remove it. Instead, he should go to court and prove respondents supposed

violations in the construction of the concrete fence. Indeed, unless a thing is a nuisance
per se, it may not be abated summarily without judicial intervention. 30 Our ruling
in Lucena Grand Central Terminal, Inc. v. JAC Liner, Inc., on the need for judicial
intervention when the nuisance is not a nuisance per se, is well worth mentioning. In
said case, we ruled:
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 [1982]). 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. [Underscoring supplied.]
In Pampanga Bus Co., Inc. v. Municipality of Tarlac where the appellant-municipality
similarly argued that the terminal involved therein is a nuisance that may be abated by
the Municipal Council via an ordinance, this Court held: "Suffice it to say that in the
abatement of nuisances the provisions of the Civil Code (Articles 694-707) must be
observed and followed. This appellant failed to do." 31
Respondents fence is not a nuisance per se. By its nature, it is not injurious to the
health or comfort of the community. It was built primarily to secure the property of
respondents and prevent intruders from entering it. And as correctly pointed out by
respondents, the sidewalk still exists. If petitioner believes that respondents fence
indeed encroaches on the sidewalk, it may be so proven in a hearing conducted for that
purpose. Not being a nuisance per se, but at most a nuisance per accidens, its
summary abatement without judicial intervention is unwarranted.
Regarding the third issue, petitioner argues that he was just performing his duties and
as public officer, he is entitled to the presumption of regularity in the performance of his
official functions. Unless there is clear proof that he acted beyond his authority or in
evident malice or bad faith, he contends that he cannot be held liable for attorneys fees
and costs of suit.
Respondents, for their part, counter that the presumption of regularity has been negated
by the fact that despite their reply to the first notice, which put petitioner on notice that
what he was doing was ultra vires, he still reiterated his earlier demand and threat of
demolition. Having been warned by respondents that his acts were in fact violations of
law, petitioner should have been more circumspect in his actions and should have
pursued the proper remedies that were more in consonance with the dictates of due
process. Respondents further pray for moral damages for the serious anxieties and

sleepless nights they suffered and exemplary damages to serve as an example to other
public officials that they should be more circumspect in the performance of their duties.
We agree with respondents.
As respondents were forced to file a case against petitioner to enjoin the impending
demolition of their property, the award of attorneys fees and costs of suit is justified.
Clearly, respondents wanted to settle the problem on their alleged encroachment
without resorting to court processes when they replied by letter after receiving
petitioners first notice. Petitioner, however, instead of considering the points raised in
respondents reply-letter, required them to submit the relocation plan as if he wants
respondents to prove that they are not encroaching on the sidewalk even if it was he
who made the accusation of violation in the first place. And when he did not get the
"proof" he was requiring from respondents, he again sent a notice with a threat of
summary demolition. This gave respondents no other choice but to file an injunction
complaint against petitioner to protect their rights.
With regard to respondents claim for moral damages, this Court rules that they are
entitled thereto in the amount ofP10,000.00 pursuant to Article 2217 32 of the Civil Code.
As testified to by respondents, they suffered anxiety and sleepless nights since they
were worried what would happen to their children who were left by themselves in their
Marikina residence while they were in Ormoc City if petitioner would make real his
threat of demolition on their fence.1wphi1
We likewise hold that respondents are entitled to exemplary damages in the amount
of P5,000.00 to serve as an example to other public officials that they should be more
circumspect in the performance of their duties.
WHEREFORE, the March 31, 2008 Decision and September 10, 2008 Resolution of the
Court of Appeals in CA-G.R. CV. No. 83675 are AFFIRMED with MODIFICATION.
Petitioner Jaime S. Perez, Chief of the Demolition Office of Marikina City
is ORDERED to pay respondent Spouses Fortunito L. Madrona and Yolanda B. Pante
moral damages in the amount of P10,000.00 and exemplary damages in the amount
of P5,000.00.
SO ORDERED.