PONCE VS PARANAQUE

FACTS: s "It is a settled rule that relief will not be

granted to a party x x x when the loss of the remedy
at law was due to his own negligence, or to a
mistaken mode of procedure. Before the Court is a
Petition for Review2 on Certiorari of the March 23,
2007 Decision3 of the Court of Appeals (CA), as well
as its June 4, 2007 Resolution,4 in CA-G.R. SP No.
91791, which dismissed V.C. Ponce Company, Inc.s
(VCP) Petiton for Certiorari. The CA held that VCPs
resort to a petition for certiorari under Rule 65 of the
Rules of Court was inappropriate and that the trial
courts rejection of the commissioners appraisal
report did not amount to a grave abuse of its
discretion. On October 5, 1987, respondent
Municipality (now City) of Paraaque (municipality)
filed a complaint7 against petitioner VCP for the
expropriation of its property, which is located in the
municipalitys Barrio San Dionisio and covered by
Transfer Certificate of Title (TCT) No. 116554.8 The
municipality intended to develop the property for its
landless residents, in line with the Presidential
Commission on Urban Poors classification of the site
as an area of priority development.9 Respondent
Sampaguita Hills Homeowners Association, Inc.
(SHHAI), consisting of the propertys actual
occupants, who are also the intended beneficiaries of
the action, intervened in the case.10
On August 23, 2002, the Regional Trial Court (RTC) of
Paraaque, Branch 274, sustained the municipalitys
right to expropriate the said property11 and to a writ
of possession.12 The trial court also informed the
parties in the same Order of the reckoning period for
the determination of just compensation, thus:
The defenses having thus been ruled upon, the Court
hereby declares that the plaintiff has the lawful right
to take the property sought to be expropriated for
the public use or purpose described in the complaint,
upon the payment of just compensation to be
determined as of the date of the taking of the
property or the filing of the complaint, whichever
came first.13
Ruling of the Trial Court
On March 10, 2005, Judge Fortunito L. Madrona
(Judge Madrona) rendered his Decision rejecting the

report. The trial court explained that just

compensation, as Section 4 of Rule 67 of the Rules of
Court provides,27 must reflect the value and
character of the property sought to be expropriated,
at the time it was taken or at the time the complaint
for expropriation was filed, whichever came first.
Applying this rule to the facts of the case, the
reckoning period should have been the time of filing
of the complaint in 1987 because it took place before
the taking of the property in 2002. The report
violated this rule by using data from 1996 onwards.
The trial court then made an independent finding
based on the evidence already on hand. It
determined that there exists, on record, a
certification from the Office of the City Assessor, that
the propertys market value for the years 1985 to
1993 (which includes the year the complaint was
filed) was P1,366,400.00.28 This value roughly
translates to P75 per square meter, for a total of
P1,372,350.00. The dispositive portion of the trial
courts Decision reads:
WHEREFORE, based then from [sic] the foregoing
considerations, considering that the land was then a
rawland in 1987 at the time of the filing of the
Amended Complaint for expropriation, it is the
determination of the Court that the just
compensation for the expropriation of the parcel of
land described as Lot No. 4598 of the Cad. Survey of
Paraaque, located in San Dionisio, Paraaque City,
containing an area of 18,298 square meters,
registered under Transfer Certificate of Title No.
116554 of the Registry of Deeds of Paraaque City in
the name of the defendant V.C. Ponce Co., Inc., is
hereby fixed at P75.00 per square meter, or for an
aggregate valuation of P1,372,350.00.
Ruling of the Court of Appeals
At the outset, the CA observed that an ordinary
appeal under Rule 41 was available to petitioner and
would have constituted a plain, speedy and adequate
remedy to correct any perceived error in the RTC
Decision. VCP, for unknown reasons, failed to avail
itself of the said remedy within the reglementary
period. Having lost its right to appeal, VCP resorted
to a Petition for Certiorari in the hope that it could
nevertheless, obtain a reversal of the RTC Decision.
The CA held that certiorari is unavailing as a

substitute for a lost appeal. The CA brushed aside as

unfounded VCPs excuse that an appeal would be
slow and inadequate. Such excuse, it noted, would
allow any litigant to avail itself of extraordinary
remedies after they lose their right to appeal. 41
The CA then held that, even if it were to rule that
certiorari is proper, it would still dismiss the petition
for certiorari. It held that grave abuse of discretion
was not attendant in the trial courts rejection of the
commissioners report. The CA explained that the
trial court has such authority as long as it finds just
cause. The reports contravention of the principle
regarding the proper reckoning period for the
determination of just compensation is such a cause. 42
Issues
1. Is petitioners lack of counsel a justifiable excuse
for the late filing of a Motion for Reconsideration?
2. Is a Petition for Certiorari the proper remedy to
correct alleged errors in the trial courts Decision?
RULING:
sThe petition has no merit.
Period for filing a Motion for
Reconsideration not extendible; failure
to file Motion for Reconsideration on
time renders the Decision final.
VCP received the CA Decision on April 10, 2007.
Based on Rule 52 of the Rules of Court57 and Rule 7 of
the 2002 Internal Rules of the Court of Appeals
(IRCA),58 VCP had 15 days from its receipt of the
Decision, or until April 25, 2007, to file a motion for
reconsideration, an appeal, or a motion for new trial.
Failure to file the necessary pleading within the
reglementary period would render the CA Decision
final and executory.59
Instead of filing a Motion for Reconsideration on April
25, 2007, VCP filed a MOTEX on the ground that its
lawyer had withdrawn from the case and it was still
in the process of retaining a new counsel. The CA
was correct in denying petitioners MOTEX because
the period to file a Motion for Reconsideration is not
extendible.60 The Court has pronounced strict
adherence to the rule laid down in Habaluyas

Enterprises, Inc. v. Judge Japson61that "no motion for

extension of time to file a motion for new trial or
reconsideration may be filed with the Metropolitan or
Municipal Trial Courts, the Regional Trial Courts, and
the Intermediate Appellate Court (now Court of
Appeals)."62 Since the period to file a Motion for
Reconsideration is not extendible, VCPs MOTEX did
not toll the reglementary period.63 Thus, there being
no Motion for Reconsideration as of April 25, 2007,
the Decision of the CA dated March 23, 2007 became
final and executory by operation of law.64 The CA was
correct in denying the Motion for Reconsideration
that VCP had belatedly filed on May 25, 2007 as its
lateness had rendered it moot.
There is no justification for the
application of equity and for the
relaxation of the rules.
VCP urges the Court to relax the rules on the
reglementary period on the ground that it was
impossible for it to meet the deadline without the aid
of counsel.
The Court, in the interest of equity and justice,
sometimes allows a liberal reading of the rules, so
long as the petitioner is able to prove the existence
of cogent reasons to excuse its nonobservance.65 The Court, however, does not find a
justification to warrant such relaxation in this
instance.
It is incumbent upon the client to exert all efforts to
retain the services of new counsel.66 VCP knew since
August 29, 2006, seven months before the CA
rendered its Decision, that it had no counsel. Despite
its knowledge, it did not immediately hire a lawyer to
attend to its affairs. Instead, it waited until the last
minute, when it had already received the adverse CA
Decision on April 10, 2007, to search for a counsel;
and even then, VCP did not rush to meet the
deadline. It asked for an extension of 30 days to file a
Motion for Reconsideration.67 It finally retained the
services of a new counsel on May 24, 2007,68 nine
months from the time that its former counsel
withdrew her appearance. VCP did not even attempt
to explain its inaction. The Court cannot grant equity
where it is clearly undeserved by a grossly negligent
party.69 As the Court pronounced in another case:

x x x Both parties have a right to a speedy resolution

of their case. Not only petitioners, but also the
respondents, have a right to have the case finally
settled without delay.
Furthermore, the failure to file x x x on time was due
primarily to petitioners unwise choices x x x. They
hired their subsequent lawyers too late.
It must be pointed out that petitioners had a choice
of whether to continue the services of their original
lawyer or consent to let him go. x x x They delayed in
engaging their replacement lawyer. Their poor
choices and lack of sufficient diligence x x x are the
main culprits for the situation they now find
themselves in. It would not be fair to pass on the bad
consequences of their choices to respondents.
Petitioners low regard for the rules or nonchalance
toward procedural requirements x x x has in fact
contributed much to the delay, and hence frustration
of justice, in the present case.70
This Court cannot ascribe good faith to
VCP as it had neglected reglementary
periods in the past.
Another reason that this Court is unable to accept
VCPs plea for indulgence is its observation that VCP
has a penchant for disregarding procedural rules and
the periods allotted to it for its action.
It did not attend the meetings before the
commissioners for the initial and the final valuation
of its property despite notice. When the
commissioners were finalizing their report to meet its
deadline, VCP asked for an additional four months to
submit its independent valuation of the property.
While the commissioners denied VCPs request,
VCPs action betrays its lack of consideration for
deadlines.
Further, VCP did not file a timely appeal from the RTC
Order denying its Motion for Reconsideration. VCP
received the said Order on August 24, 2005. Instead
of appealing under Rule 41 of the Rules of Court, VCP
filed, on the 58th day from its receipt of the RTC
Order, a MOTEX to file a Petition for Certiorari. While
the CA granted VCPs MOTEX,71 it was correct in
ultimately denying VCPs Petition for Certiorari on the

ground that VCP cannot exploit the remedy of

certiorari after it had lost its right to appeal.
Appeal is a sufficient and adequate
remedy unless the party proves
otherwise.
VCP attempts to extricate itself from the effects of its
negligence by alleging that an appeal would not have
been speedy and adequate for its purpose. The
Court, however, finds no merit in its
contention.1wphi1
A court with appellate jurisdiction can review both
the facts and the law, including questions of
jurisdiction.72 It can set aside an erroneous decision
and even nullify the same, if warranted. Appeal is a
speedy remedy, as an adverse party can file its
appeal from a final decision or order immediately
after receiving it. A party, who is alleging that an
appeal will not promptly relieve it of the injurious
effects of the judgment, should establish facts to
show how the appeal is not speedy or
adequate.73 VCPs empty protestations, therefore, fail
to impress. There is no reason, and VCP cannot
explain, why an appeal would not be speedy and
adequate to address its assigned errors. 74 VCP cannot
complain of delay because it was guilty of delay
itself, and it even waited until the 58th day of its
receipt of the CA Decision before taking action.
Clearly, petitioner resorted to certiorari as a
substitute for its lost appeal.75 The CA did not err in
dismissing the same.
In sum, VCPs continued negligence, and its resort to
the wrong remedy, placed all perceived errors in the
decisions below beyond the CAs and this Courts
grasp.
WHEREFORE, premises considered, the petition is
DENIED. The March 23, 2007 Decision of the Court of
Appeals in CA-G.R. SP No. 91791, as well as its June
4, 2007 Resolution, are AFFIRMED.
SO ORDERED.
BUSUEGO VS OMBUDSMAN
FACTS : S Private respondent Rosa S. Busuego
(Rosa) filed a complaint for: (1) Concubinage under

Article 334 of the Revised Penal Code; (2) violation of

Republic Act No. 9262 (Anti-Violence Against Women
and Their Children); and (3) Grave Threats under
Article 282 of the Revised Penal Code, before the
Office of the Ombudsman against her husband,
Alfredo, with designation Chief of Hospital, Davao
Regional Hospital, Apokon, Tagum City.
In her complaint, Rosa painted a picture of a
marriage in disarray.
She and Alfredo were married on 12 July 1975 at the
Assumption Church, Davao City. Their union was
blessed with two (2) sons, Alfred and Robert, born in
1976 and 1978, respectively. Sometime in 1983, their
marriage turned sour. At this time, Rosa unearthed
photographs of, and love letters addressed to Alfredo
from, other women. Rosa confronted Alfredo who
claimed ignorance of the existence of these letters
and innocence of any wrongdoing.
Purportedly, Alfredo very rarely stayed at home to
spend time with his family. He would come home late
at night on weekdays and head early to work the
next day; his weekends were spent with his friends,
instead of with his family. Rosa considered herself
lucky if their family was able to spend a solid hour
with Alfredo.
Around this time, an opportunity to work as nurse in
New York City, United States of America (US) opened
up for Rosa. Rosa informed Alfredo, who vehemently
opposed Rosas plan to work abroad. Nonetheless,
Rosa completed the necessary requirements to work
in the US and was scheduled to depart the
Philippines in March 1985.
Before leaving, Rosa took up the matter again with
Alfredo, who remained opposed to her working
abroad. Furious with Rosas pressing, Alfredo took his
loaded gun and pointed it at Rosas right temple,
threatening and taunting Rosa to attempt to leave
him and their family. Alfredo was only staved off
because Rosas mother arrived at the couples house.
Alfredo left the house in a rage: Rosa and her mother
heard gun shots fired outside.
Because of that incident, Rosa acted up to her plan
and left for the US. While in the US, Rosa became
homesick and was subsequently joined by her

children who were brought to the US by Alfredo. Rosa

singularly reared them: Alfred, from grade school to
university, while Robert, upon finishing high school,
went back to Davao City to study medicine and lived
with Alfredo.
During that time his entire family was in the US,
Alfredo never sent financial support. In fact, it was
Rosa who would remit money to Alfredo from time to
time, believing that Alfredo had stopped womanizing.
Rosa continued to spend her annual vacation in
Davao City.
Sometime in 1997, Rosa learned that a certain Emy
Sia (Sia) was living at their conjugal home. When
Rosa asked Alfredo, the latter explained that Sia was
a nurse working at the Regional Hospital in Tagum
who was in a sorry plight as she was allegedly being
raped by Rosas brother-in-law. To get her out of the
situation, Alfredo allowed Sia to live in their house
and sleep in the maids quarters. At that time, Rosa
gave Alfredo the benefit of the doubt.
In October 2005, Rosa finally learned of Alfredos
extra-marital relationships. Robert, who was already
living in Davao City, called Rosa to complain of
Alfredos illicit affairs and shabby treatment of him.
Rosa then rang up Alfredo which, not surprisingly,
resulted in an altercation. Robert executed an
affidavit, corroborating his mothers story and
confirming his fathers illicit affairs
On 24 June 2008, the Ombudsman issued a Joint
Order4 impleading Sia and de Leon as partyrespondents in the complaint for Concubinage and
directing them to submit their respective counteraffidavits within a period of time. Copies of the Joint
Order were mailed to Sias and de Leons last known
addresses, as provided by Rosa to the Ombudsman.
Sia and de Leon did not submit their respective
counter-affidavits: a copy of the Joint Order sent to
Sias last known address was returned to the
Ombudsman with the notation on the Registry Return
Receipt No. 1624 "Return to Sender; removed," while
a copy thereof to de Leon was received on 3
September 2008 by Ananias de Leon.5
Apparently still opposed to the Ombudsmans ruling
to simply amend the complaint and implead therein

Alfredos alleged mistresses, Alfredo filed his

Comment to the 24 June 2008 Order with Motion to
Dismiss and/or Refer the charges to the Appropriate
Provincial/City Prosecutor6 praying for dismissal of
the complaint for: (1) failure to implead the two
mistresses in violation of Article 344 of the Revised
Penal Code; and in the alternative, (2) referral of the
complaint to the Office of the City Prosecutor as
provided in OMB-DOJ Circular No. 95-001.
Rosa filed a Reply to that latest pleading of Alfredo.
On 17 April 2009, the Ombudsman issued the herein
assailed Resolution, disposing of the procedural
issues:
Before dwelling into the merits of the case, this
Office finds an urgent need to resolve the ancillary
issues raised by petitioner Dr. Busuego on: 1.) the
alleged legal infirmity of Rosass initiatory pleading
by resorting to a procedural short cut which would
result to the delay in the disposition of this case; and
2.) the criminal charges imputed are not in relation to
office, hence, the Office of the Provincial/City
Prosecutor shall investigate and prosecute this case
pursuant to OMB-DOJ Joint Circular No. 95-001, Series
of 1995.
On the first issue, this Office observed that Busuego
had already pointed out in his counter-Affidavit the
alleged deficiency in the complaint. Rosa also
explained in her Reply that the names of the
mistresses were categorically mentioned in the
complaint. She averred that this Office is empowered
to investigate and prosecute any act or omission of a
public official or employee to the exclusion of nongovernment employees. She stated that the inclusion
of the alleged concubines in the Information to be
filed in court is a matter of procedure, within the
competence of the investigating prosecutor.
In order to clarify some matters, including the said
issue, with the parties, the clarificatory hearing was
conducted. It was explained in the said hearing the
need to implead the alleged concubines in this case
pursuant to Article 344 of the Revised Penal Code
and to obviate the proceedings, Rosa was directed to
submit the addresses of the alleged concubines.
Busuegos position that the said short cut procedure
would delay the proceedings is misplaced. If the case

will be dismissed based on procedural infirmity, Rosa

could still amend her complaint and re-file this case
since the doctrine of res judicata does not apply in
the preliminary investigation stage of the
proceedings.
On the second issue, the motion of Busuego to refer
this case to the Office of the City Prosecutor was
belatedly filed. Record would show that the motion
praying for the referral of this case to the Office of
the City Prosecutor was filed on 17 July 2008, after
the parties have already filed all their pleadings and
the case is now ripe for resolution. Further, referral to
the said office is not mandatory as cited in the said
Joint Circular.7
In the same Resolution, the Ombudsman, ultimately,
found probable cause to indict only Alfredo and Sia of
Concubinage and directed the filing of an Information
against them in the appropriate court:
WHEREFORE, in view of the foregoing, this Office
finds a prima facie case for violation of Article 334 of
the Revised Penal Code (concubinage) and that
petitioner ALFREDO ROMULO BUSUEGO y ABRIO, and
EMY SIA, are probably guilty thereof.
Let the herewith Information be filed in the
appropriate court.
The charges for: 1.) Concubinage against Alfredo
Romulo Busuego y Abrio and Julie de Leon; 2.) Grave
Threats against Alfredo Romulo y Abrio; and 3.)
violation of RA 9262 (Anti-Violence Against Women
and Children Act), are hereby DISMISSED for lack of
merit.8
Alfredo filed a Partial Motion for Reconsideration
excepting to the Ombudsmans ruling on the
automatic inclusion of Sia as respondent in the
complaint and their indictment for the crime of
Concubinage. Alfredo is adamant that Rosas
complaint should have, at the outset, impleaded his
alleged concubines. Failing such, the Ombudsman
cannot resort to automatic inclusion of partyrespondents, erroneously finding him and Sia prima
facie culpable for Concubinage. For good measure,
Alfredo pointed out that from Rosas own allegations,
she had condoned or pardoned Alfredos supposed
concubinage. Alfredo likewise submitted Liza S.

Diambangans affidavit, recanting her previous

affidavit corroborating Rosas charges.

demonstrate the Ombudsman's abuse, much

less grave abuse, of discretion.

Nonetheless, the Ombudsman stood pat on its ruling,

declared that the Partial Motion for Reconsideration
was filed out of time, and gave scant attention to
Liza S. Diambangans affidavit of recantation:

First. Alfredo insists that the Ombudsmans

automatic inclusion, over his vehement
objections of Sia and de Leon as partyrespondents, violates Article 344 of the
Revised Penal Code and Section 5, Rule 110 of
the Rules of Court, which respectively provide:

WHEREFORE, all the foregoing considered, this

instant Motion for Reconsideration is hereby DENIED.
The findings in the questioned Resolution hereby
remains undisturbed. Let the Information for
Concubinage be filed in the proper court against
herein Busuego.9
Alfredo now comes to us on petition for certiorari
alleging grave abuse of discretion in the
Ombudsmans finding of probable cause to indict him
and Sia for Concubinage. Alfredos badges of grave
abuse of discretion are the following:
ISSUE: WON OMBUDSMAN ABUSE ITS DISCRETION
RULING: We sustain the Ombudsman.
The Ombudsman has full discretionary
authority in the determination of probable
cause during a preliminary investigation.10 This
is the reason why judicial review of the
resolution of the Ombudsman in the exercise of
its power and duty to investigate and
prosecute felonies and/or offenses of public
officers is limited to a determination of
whether there has been a grave abuse of
discretion amounting to lack or excess of
jurisdiction. Courts are not empowered to
substitute their judgment for that of the
Ombudsman.11
By grave abuse of discretion is meant such
capricious and whimsical exercise of judgment
tantamount to lack of jurisdiction.12 The abuse
of discretion must be so patent and gross as to
amount to an evasion of a positive duty or a
virtual refusal to perform a duty enjoined by
law, or to act at all in contemplation of law, as
where the power is exercised in an arbitrary
and despotic manner by reason of passion or
hostility.13 In this regard, petitioner failed to

Art. 344. Prosecution of the crimes of adultery,

concubinage, seduction, abduction, rape and
acts of lasciviousness. The crimes of
adultery and concubinage shall not be
prosecuted except upon a complaint filed by
the offended spouse.
The offended party cannot institute criminal
prosecution without including both the guilty
parties, if they are both alive, nor, in any case,
if he shall have consented or pardoned the
offenders.
Section 5. Who must prosecute criminal action.
xxx.
The crimes of adultery and concubinage shall
not be prosecuted except upon a complaint
filed by the offended spouse. The offended
party cannot institute criminal prosecution
without including the guilty parties, if both are
alive, nor, in any case, if the offended party has
consented to the offense or pardoned the
offenders.
We do not agree.
The submission of Alfredo is belied by the fact
that the Ombudsman merely followed the
provisions of its Rules of Procedure.
S Rule II
PROCEDURE IN CRIMINAL CASES
xxxx
Section 2. Evaluation Upon evaluating the
complaint, the investigating officer shall recommend
whether it may be:
a) dismissed outright for want of palpable merit;

b) referred to respondent for comment;

c) indorsed to the proper government office or
agency which has jurisdiction over the case;
d) forwarded to the appropriate office or official for
fact-finding investigation;
e) referred for administrative adjudication; or
f) subjected to a preliminary investigation.
xxxx
Section 4. Procedure The preliminary investigation
of cases falling under the jurisdiction of the
Sandiganbayan and Regional Trial Courts shall be
conducted in the manner prescribed in Section 3,
Rule 112 of the Rules of Court, subject to the
following provisions:
a) x x x
b) After such affidavits have been secured, the
investigating officer shall issue an order, attaching
thereto a copy of the affidavits and other supporting
documents, directing the respondents to submit,
within ten (10) days from receipt thereof, his counteraffidavits and controverting evidence with proof of
service thereof on the complainant. The complainant
may file reply affidavits within ten (10) days after
service of the counter-affidavits.
c) If the respondents does not file a counter-affidavit,
the investigating officer may consider the comment
filed by him, if any, as his answer to the complaint. In
any event, the respondent shall have access to the
evidence on record.
d) No motion to dismiss shall be allowed except for
lack of jurisdiction.
Neither may a motion for a bill of particulars be
entertained.
If respondent desires any matter in the complainants
affidavit to be clarified, the particularization thereof
may be done at the time of the clarificatory
questioning in the manner provided in paragraph (f)
of this section.

e) If the respondents cannot be served with the order

mentioned in paragraph 6 hereof, or having been
served, does not comply therewith, the complaint
shall be deemed submitted for resolution on the
basis of the evidence on the record.
f) If, after the filing of the requisite affidavits and
their supporting evidences, there are facts material
to the case which the investigating officer may need
to be clarified on, he may conduct a clarificatory
hearing during which the parties shall be afforded
the opportunity to be present but without the right to
examine or cross-examine the witness being
questioned. Where the appearance of the parties or
witnesses is impracticable, the clarificatory
questioning may be conducted in writing, whereby
the questions desired to be asked by the
investigating officer or a party shall be reduced into
writing and served on the witness concerned who
shall be required to answer the same in writing and
under oath.
g) Upon the termination of the preliminary
investigation, the investigating officer shall forward
the records of the case together with his resolution to
the designated authorities for their appropriate
action thereon.
No information may be filed and no complaint may
be dismissed without the written authority or
approval of the ombudsman in cases falling within
the jurisdiction of the Sandiganbyan, or of the proper
Deputy Ombudsman in all other cases. (Emphasis
supplied).
Notably, Rosas complaint contained not just the
Concubinage charge, but other charges: violation of
Republic Act No. 9262 and Grave Threats. Upon the
Ombudsmans perusal, the complaint was supported
by affidavits corroborating Rosas accusations. Thus,
at that stage, the Ombudsman properly referred the
complaint to Alfredo for comment. Nonetheless,
while the Ombudsman found no reason for outright
dismissal, it deemed it fit to hold a clarificatory
hearing to discuss the applicability of Article 344 of
the Revised Penal Code, the issue having been
insisted upon by Alfredo.
Surely the procedural sequence of referral of the
complaint to respondent for comment and thereafter

the holding of a clarificatory hearing is provided for

in paragraph b, Section 2 and paragraphs d and f,
Section 4 of Rule II, which we have at the outset
underscored. Thus did the Ombudsman rule:
In order to clarify some matters, including the said
issue, with the parties, the clarificatory hearing was
conducted. It was explained in the said hearing the
need to implead the alleged concubines in this case
pursuant to Article 344 of the Revised Penal Code
and to obviate the proceedings, Rosa was directed to
submit the addresses of the alleged concubines.
Busuegos position that the said short cut procedure
would delay the proceedings is misplaced. If the case
will be dismissed based on procedural infirmity, Rosa
could still amend her complaint and re-file this case
since the doctrine of res judicata does not apply in
the preliminary investigation stage of the
proceedings.14
The Ombudsman merely facilitated the amendment
of the complaint to cure the defect pointed out by
Alfredo. We agree with the Ombudsman that it would
be superfluous to dismiss the complaint when
amendment thereof is allowed by its Rules of
Procedure15 and the Rules of Court.16
Second. Alfredo claims that the Ombudsman should
have referred Rosas complaint to the Department of
Justice (DOJ), since the crime of Concubinage is not
committed in relation to his being a public officer.
This is not a new argument.
The Ombudsmans primary jurisdiction, albeit
concurrent with the DOJ, to conduct preliminary
investigation of crimes involving public officers,
without regard to its commission in relation to office,
had long been settled in Sen. Honasan II v. The Panel
of Investigating Prosecutors of DOJ,17 and affirmed in
subsequent cases:
The Constitution, Section 15 of the Ombudsman Act
of 1989 and Section 4 of the Sandiganbayan Law, as
amended, do not give to the Ombudsman exclusive
jurisdiction to investigate offenses committed by
public officers or employees. The authority of the
Ombudsman to investigate offenses involving public
officers or employees is concurrent with other
government investigating agencies such as
provincial, city and state prosecutors. However, the

Ombudsman, in the exercise of its primary

jurisdiction over cases cognizable by the
Sandiganbayan, may take over, at any stage, from
any investigating agency of the government, the
investigation of such cases.
In other words, respondent DOJ Panel is not
precluded from conducting any investigation of cases
against public officers involving violations of penal
laws but if the cases fall under the exclusive
jurisdiction of the Sandiganbayan, the respondent
Ombudsman may, in the exercise of its primary
jurisdiction take over at any stage.
Thus, with the jurisprudential declarations that the
Ombudsman and the DOJ have concurrent
jurisdiction to conduct preliminary investigation, the
respective heads of said offices came up with OMBDOJ Joint Circular No. 95-001 for the proper
guidelines of their respective prosecutors in the
conduct of their investigations, to wit:
OMB-DOJ JOINT CIRCULAR NO. 95-001
Series of 1995
ALL GRAFT INVESTIGATION/SPECIAL
PROSECUTIONOFFICERS OF THE OFFICE OF THE
OMBUDSMAN
TO: ALL REGIONAL STATE PROSECUTORS AND THEIR
ASSISTANTS, PROVINCIAL/CITY PROSECUTORS AND
THEIR ASSISTANTS, STATE PROSECUTORS
ANDPROSECUTING ATTORNEYS OF THE DEPARTMENT
OFJUSTICE.
SUBJECT: HANDLING COMPLAINTS FILED AGAINST
PUBLICOFFICERS AND EMPLOYEES, THE CONDUCT
OFPRELIMINARY INVESTIGATION, PREPARATION
OFRESOLUTIONS AND INFORMATIONS AND
PROSECUTION OF CASES BY PROVINCIAL AND CITY
PROSECUTORS AND THEIR ASSISTANTS.
x--------------------------------------------------------------------------------------x
In a recent dialogue between the OFFICE OF THE
OMBUDSMAN and the DEPARTMENT OF JUSTICE,
discussion centered around the latest
pronouncement of the SUPREME COURT on the
extent to which the OMBUDSMAN may call upon the

government prosecutors for assistance in the

investigation and prosecution of criminal cases
cognizable by his office and the conditions under
which he may do so. Also discussed was Republic Act
No. 7975 otherwise known as "AN ACT TO
STRENGTHEN THE FUNCTIONAL AND STRUCTURAL
ORGANIZATION OF THE SANDIGANBAYAN, AMENDING
FOR THE PURPOSE PRESIDENTIAL DECREE NO. 1606,
AS AMENDED" and its implications on the jurisdiction
of the office of the Ombudsman on criminal offenses
committed by public officers and employees.
Concerns were expressed on unnecessary delays that
could be caused by discussions on jurisdiction
between the OFFICE OF THE OMBUDSMAN and the
DEPARTMENT OF JUSTICE, and by procedural conflicts
in the filing of complaints against public officers and
employees, the conduct of preliminary investigations,
the preparation of resolutions and informations, and
the prosecution of cases by provincial and city
prosecutors and their assistants as DEPUTIZED
PROSECUTORS OF THE OMBUDSMAN.
Recognizing the concerns, the OFFICE OF THE
OMBUDSMAN and the DEPARTMENT OF JUSTICE, in a
series of consultations, have agreed on the following
guidelines to be observed in the investigation and
prosecution of cases against public officers and
employees:
1. Preliminary investigation and prosecution of
offenses committed by public officers and employees
IN RELATION TO OFFICE whether cognizable by the
SANDIGANBAYAN or the REGULAR COURTS, and
whether filed with the OFFICE OF THE OMBUDSMAN
or with the OFFICE OF THE PROVINCIAL/CITY
PROSECUTOR shall be under the control and
supervision of the office of the OMBUDSMAN.
2. Unless the Ombudsman under its Constitutional
mandate finds reason to believe otherwise, offenses
NOT IN RELATION TO OFFICE and cognizable by the
REGULAR COURTS shall be investigated and
prosecuted by the OFFICE OF THE PROVINCIAL/CITY
PROSECUTOR, which shall rule thereon with finality.
3. Preparation of criminal information shall be the
responsibility of the investigating officer who
conducted the preliminary investigation. Resolutions
recommending prosecution together with the duly

accomplished criminal informations shall be

forwarded to the appropriate approving authority.
4. Considering that the OFFICE OF THE OMBUDSMAN
has jurisdiction over public officers and employees
and for effective monitoring of all investigations and
prosecutions of cases involving public officers and
employees, the OFFICE OF THE PROVINCIAL/CITY
PROSECUTOR shall submit to the OFFICE OF THE
OMBUDSMAN a monthly list of complaints filed with
their respective offices against public officers and
employees.
xxxx
A close examination of the circular supports the view
of the respondent Ombudsman that it is just an
internal agreement between the Ombudsman and
the DOJ.
Sections 2 and 4, Rule 112 of the Revised Rules on
Criminal Procedure on Preliminary Investigation,
effective December 1, 2000, to wit:
SEC. 2. Officers authorized to conduct preliminary
investigations
The following may conduct preliminary
investigations:
(a) Provincial or City Prosecutors and their assistants;
(b) Judges of the Municipal Trial Courts and Municipal
Circuit Trial Courts;
(c) National and Regional State Prosecutors; and
(d) Other officers as may be authorized by law.
Their authority to conduct preliminary investigation
shall include all crimes cognizable by the proper
court in their respective territorial jurisdictions.
SEC. 4. Resolution of investigating prosecutor and its
review. - If the investigating prosecutor finds cause to
hold the respondent for trial, he shall prepare the
resolution and information. He shall certify under
oath in the information that he, or as shown by the
record, an authorized officer, has personally
examined the complainant and his witnesses; that
there is reasonable ground to believe that a crime

has been committed and that the accused is

probably guilty thereof; that the accused was
informed of the complaint and of the evidence
submitted against him; and that he was given an
opportunity to submit controverting evidence.
Otherwise, he shall recommend the dismissal of the
complaint.
Within five (5) days from his resolution, he shall
forward the record of the case to the provincial or
city prosecutor or chief state prosecutor, or to the
Ombudsman or his deputy in cases of offenses
cognizable by the Sandiganbayan in the exercise of
its original jurisdiction. They shall act on the
resolution within ten (10) days from their receipt
thereof and shall immediately inform the parties of
such action.
No complaint or information may be filed or
dismissed by an investigating prosecutor without the
prior written authority or approval of the provincial or
city prosecutor or chief state prosecutor or the
Ombudsman or his deputy.
Where the investigating prosecutor recommends the
dismissal of the complaint but his recommendation is
disapproved by the provincial or city prosecutor or
chief state prosecutor or the Ombudsman or his
deputy on the ground that a probable cause exists,
the latter may, by himself file the information against
the respondent, or direct another assistant
prosecutor or state prosecutor to do so without
conducting another preliminary investigation.
If upon petition by a proper party under such rules as
the Department of Justice may prescribe or motu
proprio, the Secretary of Justice reverses or modifies
the resolution of the provincial or city prosecutor or
chief state prosecutor, he shall direct the prosecutor
concerned either to file the corresponding
information without conducting another preliminary
investigation, or to dismiss or move for dismissal of
the complaint or information with notice to the
parties. The same Rule shall apply in preliminary
investigations conducted by the officers of the Office
of the Ombudsman.
confirm the authority of the DOJ prosecutors to
conduct preliminary investigation of criminal
complaints filed with them for offenses cognizable by

the proper court within their respective territorial

jurisdictions, including those offenses which come
within the original jurisdiction of the Sandiganbayan;
but with the qualification that in offenses falling
within the original jurisdiction of the Sandiganbayan,
the prosecutor shall, after their investigation,
transmit the records and their resolutions to the
Ombudsman or his deputy for appropriate action.
Also, the prosecutor cannot dismiss the complaint
without the prior written authority of the
Ombudsman or his deputy, nor can the prosecutor
file an Information with the Sandiganbayan without
being deputized by, and without prior written
authority of the Ombudsman or his deputy.

have concurrent jurisdiction to investigate offenses

involving public officers or employees. Nonetheless,
we pointed out that the Ombudsman, in the exercise
of its primary jurisdiction over cases cognizable by
the Sandiganbayan, may take over, at any stage,
from any investigating agency of the government,
the investigation of such cases. Plainly, applying that
ruling in this case, the Ombudsman has primary
jurisdiction, albeit concurrent with the DOJ, over
Rosas complaint, and after choosing to exercise such
jurisdiction, need not defer to the dictates of a
respondent in a complaint, such as Alfredo. In other
words, the Ombudsman may exercise jurisdiction to
the exclusion of the DOJ.

xxxx

SMART VS ALDECOA

To reiterate for emphasis, the power to investigate or

conduct preliminary investigation on charges against
any public officers or employees may be exercised by
an investigator or by any provincial or city prosecutor
or their assistants, either in their regular capacities
or as deputized Ombudsman prosecutors. The fact
that all prosecutors are in effect deputized
Ombudsman prosecutors under the OMB-DOJ circular
is a mere superfluity. The DOJ Panel need not be
authorized nor deputized by the Ombudsman to
conduct the preliminary investigation for complaints
filed with it because the DOJs authority to act as the
principal law agency of the government and
investigate the commission of crimes under the
Revised Penal Code is derived from the Revised
Administrative Code which had been held in the
Natividad case citation omitted as not being contrary
to the Constitution. Thus, there is not even a need to
delegate the conduct of the preliminary investigation
to an agency which has the jurisdiction to do so in
the first place. However, the Ombudsman may assert
its primary jurisdiction at any stage of the
investigation. (Emphasis supplied).

FACTS: Before the Court is a Petition for Review on

Certiorari under Rule 45 of the Rules of Court filed by
petitioner Smart Communications, Inc., seeking the
reversal of the Decision1 dated July 16, 2004 and
Resolution2 dated December 9, 2004 of the Court of
Appeals in CA-G.R. CV No. 71337. The appellate court
(I) reversed and set aside the Order 3 dated January
16, 2001 of the Regional Trial Court (RTC), Branch 23,
of Roxas, Isabela, in Civil Case No. Br. 23-632-2000
dismissing the complaint for abatement of nuisance
and injunction against petitioner, and (2) entered a
new judgment declaring petitioner's cellular base
station located in Barangay Vira, Municipality of
Roxas, Province of Isabela, a nuisance and ordering
petitioner to cease and desist from operating the said
cellular base station.

In Honasan II, although Senator Gregorio "Gringo"

Honasan was a public officer who was charged with
coup detat for the occupation of Oakwood on 27 July
2003, the preliminary investigation therefor was
conducted by the DOJ. Honasan questioned the
jurisdiction of the DOJ to do so, proferring that it was
the Ombudsman which had jurisdiction since the
imputed acts were committed in relation to his public
office. We clarified that the DOJ and the Ombudsman

The instant Petition arose from the following facts:

Petitioner is a domestic corporation engaged in the
telecommunications business. On March 9, 2000,
petitioner entered into a contract of lease4 with
Florentino Sebastian in which the latter agreed to
lease to the former a piece of vacant lot, measuring
around 300 square meters, located in Barangay Vira,
Roxas, Isabela (leased property).Petitioner, through
its contractor, Allarilla Construction, immediately
constructed and installed a cellular base station on
the leased property. Inside the cellular base station is
a communications tower, rising as high as150 feet,
with antennas and transmitters; as well as a power
house open on three sides containing a 25KVA diesel
power generator. Around and close to the cellular

base station are houses, hospitals, clinics, and

establishments, including the properties of
respondents Arsenio Aldecoa, Jose B. Torre, Conrado
U. Pua, Gregorio V. Mansano, Jerry Corpuz, and
Estelita Acosta.

4. Petitioner seeks immediate declaratory relief from

respondents contrived allegations as set forth in
their complaint;

Civil Case No. Br. 23-632-2000 was set for pre-trial on

September 28, 2000.9

Wherefore, it is most respectfully prayed of this

Honorable Court that summary judgment be
rendered pursuant to Rule 35 of the Revised Rules of
Court.11

On September 11, 2000, petitioner filed its Pre-Trial

Brief in which it identified the following issues:

Respondents filed their Pre-Trial Brief on September

21, 2000, proposing to limit the issues,

4.1. Whether respondents have a cause of action

against the petitioner SMART for this Honorable Court
to issue a Preliminary Mandatory Injunction over the
SMART tower in Roxas, Isabela as it allegedly poses a
threat to the lives and safety of the residents within
the area and if respondents are entitled to moral and
exemplary damages as well as attorneys fees and
expenses of litigation.

viz:

4.2 Whether the complaint should be dismissed in

that the claim or demand set forth in the Complaint
is fictitious, imaginary, sham and without any real
basis.
4.3. What petitioner SMART is entitled under its
compulsory counterclaim against respondents for
moral and exemplary damages, attorneys fees, and
other expenses of litigation.10
On even date, petitioner filed a Motion for Summary
Judgment that reads:
Petitioner SMART Communications Inc., thru counsel,
respectfully manifests that:
1. There is no need for a full-blown trial as the causes
of action and issues have already been identified in
all the pleadings submitted to this Honorable court
by both respondents and petitioner
2. There is clearly no genuine issue as to any
material fact or cause in the action.
3. There is no extreme urgency to issue a Preliminary
Mandatory Injunction as stated in an affidavit
executed by SMART Senior Supervisor Andres V.
Romero in an affidavit hereto attached as Annex "A"

started more than a month ago, it has sent

"jackhammers into the brains" of all the inhabitants
nearby. Everyone is going crazy. A resident just
recently operated for breast cancer is complaining
that the noise emanating from the generator is fast
tracking her appointment with death. She can no
longer bear the unceasing and irritating roar of the
power generator.

- Whether petitioners communications tower is a

nuisance per se/per accidens and together with its
standby generator maybe abated for posing danger
to the property and life and limb of the residents of
Vira, Roxas, Isabela more particularly the
respondents and those whose houses are clustered
around or in the periphery of the cell site.

For this, the residents, led by the respondents,

sought a noise emission test of the power generator
of petitioner SMART Communications with the DENR.
The test was conducted on November 14 and 15,
2000 and the result shows that the petitioners
power generator failed the noise emission test, day
and night time. Result of this test was furnished the
Municipal Mayor of Roxas, Isabela (See
Communication of DENR Regional Director Lorenzo C.
Aguiluz to Mayor Benedicto Calderon dated
November 16, 2000 and the Inspection Monitoring
Report).

- Damages, attorneys fees, litigation expenses and

other claims.12

With these findings, the power generator is also a

nuisance. It must also be abated.17

Respondents likewise filed on September 21, 2000

their Opposition to petitioners Motion for Summary
Judgment, maintaining that there were several
genuine issues relating to the cause of action and
material facts of their Complaint. They asserted that
there was a need for a full blown trial to prove the
allegations in their Complaint, as well as the
defenses put up by petitioner.13

On January 16, 2001, the RTC issued its Order

granting petitioners Motion for Summary Judgment
and dismissing respondents Complaint. The RTC
ruled as follows:

In its Order14 dated September 28, 2000, the RTC

indefinitely postponed the pre-trial until it has
resolved petitioners Motion for Summary Judgment.
In the same Order, the RTC directed the counsels of
both parties to submit their memoranda, including
supporting affidavits and other documents within 30
days.
Petitioner submitted its Memorandum15 on October
26, 2000; while respondents, following several
motions for extension of time, filed their
Memorandum16 on November 22, 2000. In their
Memorandum, respondents additionally alleged that:
The cellsite base station is powered by a roaring 25
KVA power generator. Operated 24 hours since it

What is of prime importance is the fact that contrary

to the respondents speculation, the radio frequency
radiation as found out by the Department of Health is
much lower compared to that of TV and radio
broadcast. The respondents counter to this claim is
that the Department of Health was misled. This is a
mere conclusion of the respondents.
The respondents in opposing the Smarts
construction of their cellsite is anchored on the
supposition that the operation of said cellsite tower
would pose a great hazard to the health of the
alleged cluster of residents nearby and the perceived
danger that the said tower might also collapse in
case of a strong typhoon that fell the Mobiline
Cellsite tower of Mobiline (sic). The structured built of
the Smarts Cellsite tower is similar to that of the
Mobiline.

Now, as to the Courts assessment of the

circumstances obtaining, we find the claim of the
respondents to be highly speculative, if not an
isolated one. Elsewhere, we find several cellsite
towers scattered (sic) allover, both of the Smart,
Globe, and others, nay even in thickly populated
areas like in Metro Manila and also in key cities
nationwide, yet they have not been outlawed or
declared nuisance as the respondents now want this
Court to heed. To the thinking of the Court, the
respondents are harping imagined perils to their
health for reason only known to them perhaps
especially were we to consider that the Brgy. Captain
of Vira earlier gave its imprimatur to this project.
Noteworthy is the fact that the alleged cluster of
residential houses that abut the cellsite tower in
question might be endangered thereby, the
respondents are but a few of those residents. If
indeed, all those residents in Vira were adversely
affected for the perceived hazards posed by the
tower in question, they should also have been joined
in as respondents in a class suit. The sinister motive
is perhaps obvious.
All the foregoing reasons impel this Court to grant
the petitioners motion for the dismissal of the
complaint, the perceived dangers being highly
speculative without any bases in fact. Allegations in
the complaint being more imaginary than real, do not
constitute factual bases to require further proceeding
or a trial. As to the claim that there is no certification
or clearance from the DENR for the petitioner to lay
in wait before the construction, suffice it to say that
no action as yet has been taken by said office to stop
the ongoing operation of said cellsite now in
operation. There has been no hue and cry from
among the greater majority of the people of Roxas,
Isabela, against it. Al contrario, it is most welcome to
them as this is another landmark towards the
progress of this town.18
The dispositive portion of the RTC Order reads:
WHEREFORE, in view of the foregoing considerations,
the Court hereby renders judgment dismissing the
complaint as the allegations therein are purely
speculative and hence no basis in fact to warrant
further proceedings of this case.

The Court finds no compelling grounds to award

damages.
Without costs.19
In another Order20 dated February 27, 2001, the RTC
denied respondents Motion for Reconsideration.
Respondents filed an appeal with the Court of
Appeals, docketed as CA-G.R. CV No. 71337.
The Court of Appeals rendered its Decision on July
16, 2004. The appellate court declared the cellular
base station of petitioner a nuisance that
endangered the health and safety of the residents of
Barangay Vira, Roxas, Isabela because: (1) the
locational clearance granted to petitioner was a
nullity due to the lack of approval by majority of the
actual residents of the
barangay and a barangay resolution endorsing the
construction of the cellular base station; and (2) the
sound emission of the generator at the cellular base
station exceeded the Department of Environment
and Natural Resources (DENR) standards.
Consequently, the Court of Appeals decreed:
WHEREFORE, the appealed decision is hereby
REVERSED and SET ASIDE. A new one is entered
declaring the communications tower or base station
of petitioner Smart Communications, Inc. located at
Brigido Pascual Street in Vira, Municipality of Roxas,
Province of Isabela, a nuisance. Petitioner is ordered
to cease and desist from operating the said tower or
station.21
Petitioner filed its Motion for Reconsideration arguing
that: (1) the basis for the judgment of the appellate
court that the cellular base station was a nuisance
had been extinguished as the generator subject of
the Complaint was already removed; and (2) there
had been substantial compliance in securing all
required permits for the cellular base station. 22
The Court of Appeals, in a Resolution dated
December 9, 2004,refused to reconsider its earlier
Decision, reasoning that:
Petitioner principally anchors its pleas for
reconsideration on the Certification issued by Roxas,

Isabela Municipal Engineer Virgilio Batucal, declaring

that upon actual inspection, no Denyo Generator Set
has been found in the companys cell site in Roxas,
Isabela. We hold, however, that the certification
dated August 12, 2004, taken on its own, does not
prove Smarts allegation that it has abandoned using
diesel- powered generators since January 2002.
Respondents current photographs of the cell site
clearly shows (sic) that Smart continues to use a
mobile generator emitting high level of noise and
fumes.
ISSUE: 21.0 The Court of Appeals erred when it
encroached upon an executive function of
determining the validity of a locational
clearance when it declared, contrary to the
administrative findings of the Housing Land
Use and Regulatory Board ("HLURB"), that the
locational clearance of Petitioner was void.
22.0 The Court of Appeals erred when it
resolved an issue that was not submitted to it
for resolution and in the process had usurped a
purely executive function.
23.0 The Court of Appeals erred in declaring
Petitioners entire base station a nuisance
considering that it was only a small part of the
base station, a generator that initially powered
the base station, that was reportedly
producing unacceptable levels of noise.
24.0 The Court of Appeals erred in not
considering that the supervening event of shut
down and pull out of the generator in the base
station, the source of the perceived nuisance,
made the complaint for abatement of nuisance
academic.24
RULING:
S The Petition is partly meritorious. While the Court
agrees that the Court of Appeals should not have
taken cognizance of the issue of whether the
locational clearance for petitioners cellular base
station is valid, the Court will still not reinstate the
RTC Order dated January 16, 2001 granting
petitioners Motion for Summary Judgment and
entirely dismissing Civil Case No. Br. 23-632-2000.
The issues of (1) whether petitioners cellular base

station is a nuisance, and (2) whether the generator

at petitioners cellular base station is, by itself, also a
nuisance, ultimately involve disputed or contested
factual matters that call for the presentation of
evidence at a full-blown trial.

The doctrine of primary jurisdiction does not warrant

a court to arrogate unto itself the authority to resolve
a controversy the jurisdiction over which is initially
lodged with an administrative body of special
competence.

On the finding of the Court of

Appeals that petitioners locational
clearance for its cellular base station
is a nullity

We have held that while the administration grapples

with the complex and multifarious problems caused
by unbridled exploitation of our resources, the
judiciary will stand clear. A long line of cases
establishes the basic rule that the court will not
interfere in matters which are addressed to the
sound discretion of government agencies entrusted
with the regulation of activities coming under the
special technical knowledge and training of such
agencies.

Based on the principle of exhaustion of

administrative remedies and its corollary doctrine of
primary jurisdiction, it was premature for the Court of
Appeals to take cognizance of and rule upon the
issue of the validity or nullity of petitioners locational
clearance for its cellular base station.
The principle of exhaustion of administrative
remedies and the doctrine of primary jurisdiction
were explained at length by the Court in Province of
Zamboanga del Norte v. Court of Appeals,25 as
follows:
The Court in a long line of cases has held that before
a party is allowed to seek the intervention of the
courts, it is a pre-condition that he avail himself of all
administrative processes afforded him. Hence, if a
remedy within the administrative machinery can be
resorted to by giving the administrative officer every
opportunity to decide on a matter that comes within
his jurisdiction, then such remedy must be exhausted
first before the court's power of judicial review can
be sought. The premature resort to the court is fatal
to one's cause of action. Accordingly, absent any
finding of waiver or estoppel, the case may be
dismissed for lack of cause of action.
The doctrine of exhaustion of administrative
remedies is not without its practical and legal
reasons. Indeed, resort to administrative remedies
entails lesser expenses and provides for speedier
disposition of controversies. Our courts of justice for
reason of comity and convenience will shy away from
a dispute until the system of administrative redress
has been completed and complied with so as to give
the administrative agency every opportunity to
correct its error and to dispose of the case.
xxxx

In fact, a party with an administrative remedy must

not merely initiate the prescribed administrative
procedure to obtain relief, but also pursue it to its
appropriate conclusion before seeking judicial
intervention. The underlying principle of the rule on
exhaustion of administrative remedies rests on the
presumption that when the administrative body, or
grievance machinery, is afforded a chance to pass
upon the matter, it will decide the same correctly.
(Citations omitted.)
The Court again discussed the said principle and
doctrine in Addition Hills Mandaluyong Civic & Social
Organization, Inc. v. Megaworld Properties &
Holdings, Inc., et al.,26 citing Republic v. Lacap,27 to
wit:
We have consistently declared that the doctrine of
exhaustion of administrative remedies is a
cornerstone of our judicial system. The thrust of the
rule is that courts must allow administrative agencies
to carry out their functions and discharge their
responsibilities within the specialized areas of their
respective competence. The rationale for this
doctrine is obvious. It entails lesser expenses and
provides for the speedier resolution of controversies.
Comity and convenience also impel courts of justice
to shy away from a dispute until the system of
administrative redress has been completed.
In the case of Republic v. Lacap, we expounded on
the doctrine of exhaustion of administrative remedies

and the related doctrine of primary jurisdiction in this

wise:
The general rule is that before a party may seek the
intervention of the court, he should first avail of all
the means afforded him by administrative processes.
The issues which administrative agencies are
authorized to decide should not be summarily taken
from them and submitted to a court without first
giving such administrative agency the opportunity to
dispose of the same after due deliberation.
Corollary to the doctrine of exhaustion of
administrative remedies is the doctrine of primary
jurisdiction; that is, courts cannot or will not
determine a controversy involving a question which
is within the jurisdiction of the administrative tribunal
prior to the resolution of that question by the
administrative tribunal, where the question demands
the exercise of sound administrative discretion
requiring the special knowledge, experience and
services of the administrative tribunal to determine
technical and intricate matters of fact. (Citations
omitted.)
The Housing and Land Use Regulatory Board
(HLURB)28 is the planning, regulatory, and quasijudicial instrumentality of government for land use
development.29 In the exercise of its mandate to
ensure rational land use by regulating land
development, it issued HLURB Resolution No.R-626,
series of 1998, Approving the Locational Guidelines
for Base Stations of Cellular Mobile Telephone
Service, Paging Service, Trunking Service, Wireless
Loop Service and Other Wireless Communication
Services (HLURB Guidelines). Said HLURB Guidelines
aim to protect" providers and users, as well as the
public in general while ensuring efficient and
responsive communication services."
Indeed, the HLURB Guidelines require the submission
of several documents for the issuance of a locational
clearance for a cellular base station, including:
IV. Requirements and Procedures in Securing
Locational Clearance
A. The following documents shall be submitted in
duplicate:

xxxx
g. Written Consent:
g.1 Subdivisions
xxxx
g. 1.2 In the absence of an established Homeowners
Association, consent/affidavit of non-objection from
majority of actual occupants and owners of
properties within a radial distance equivalent to the
height of the proposed base station measured from
its base, including all those whose properties is
adjoining the proposed site of the base station.(Refer
to Figure 2)
xxxx
h. Barangay Council Resolution endorsing the base
station.
Correlatively, the HLURB provides administrative
remedies for non-compliance with its requirements.
In 2000, when factual precedents to the instant case
began to take place, HLURB Resolution No. R-586,
series of 1996, otherwise known as the 1996 HLURB
Rules of Procedure, as amended, was in effect. The
original 1996 HLURB Rules of Procedure was precisely
amended by HLURB Resolution No. R-655, series of
1999, "so as to afford oppositors with the proper
channel and expeditious means to ventilate their
objections and oppositions to applications for
permits, clearances and licenses, as well as to
protect the rights of applicants against frivolous
oppositions that may cause undue delay to their
projects. "Under the 1996 HLURB Rules of Procedure,
as amended, an opposition to an application for a
locational clearance for a cellular base station or a
complaint for the revocation of a locational clearance
for a cellular base station already issued, is within
the original jurisdiction of the HLURB Executive
Committee. Relevant provisions read:

SECTION 2. Opposition to Application for

Permit/License/ Clearance. When an opposition is
filed to an application for a license, permit or
clearance with the Board or any of its Regional Field
Office, the Regional Officer shall make a preliminary
evaluation and determination whether the case is
impressed with significant economic, social,
environmental or national policy implications. If
he/she determines that the case is so impressed with
significant economic, social, environmental or
national policy implications, such as, but not limited
to:
1) Projects of national significance, for purposes of
this rule, a project is of national significance if it is
one or falls under any of those enumerated in Rule
III, Section 3 of these Rules, as amended;
2) Those involving zoning variances and exceptions;
3) Those involving significant public interest or policy
issues;
4) Those endorsed by the zoning administrators of
local government units.
The Regional Officer shall cause the records of the
case to be transmitted to the Executive Committee
which shall assume original jurisdiction over the
case, otherwise, the Regional Officer shall act on and
resolve the Opposition.
SECTION 3. A project is of national significance if it
involves any of the following:
a) Power generating plants (e.g., coal-fired thermal
plants)and related facilities (e.g., transmission lines);

h) Cell sites and telecommunication facilities;

i) Economic zones, regional industrial centers,
regional agro-industrial centers, provincial industrial
centers;
j) All other industrial activities classified as highintensity uses (1-3 Projects).
SECTION 4. Any party aggrieved, by reason of the
elevation or non-elevation of any contested
application by the Regional Officer, may file a verified
petition for review thereof within thirty (30) days
from receipt of the notice of elevation or nonelevation of the contested application with the
Executive Committee which shall resolve whether it
shall assume jurisdiction thereon.
The contested application for clearance, permit or
license shall be treated as a complaint and all other
provisions of these rules on complaints not
inconsistent with the preceding section shall, as far
as practicable, be made applicable to oppositions
except that the decision of the Board en banc on
such contested applications shall be final and
executory as provided in Rule XIX, Section 2 of these
Rules, as amended.
The Rules pertaining to contested applications for
license, permit or clearance shall, by analogy, apply
to cases filed primarily for the revocation thereof.
xxxx
RULE XVII
Proceedings Before the Board of Commissioners
xxxx

b) Airport/seaports; dumping sites/sanitary landfills;

reclamation projects;
c) Large-scale piggery and poultry projects;

SECTION 15. The Executive Committee. The

Executive Committee shall be composed of the four
regular Commissioners and the Ex-Officio
Commissioner from the Department of Justice.

d) Mining/quarrying projects;
xxxx

RULE III

e) National government centers;

Commencement of Action, Summons and Answer

f) Golf courses;

xxxx

g) Fish ponds and aqua culture projects;

The Executive Committee shall act for the Board on

policy matters, measures or proposals concerning the
management and substantive administrative
operations of the Board subject to ratification by the
Board en banc, and shall assume original jurisdiction

over cases involving opposition to an application for

license, permit or clearance for projects or cases
impressed with significant economic, social,
environmental or national policy implications or
issues in accordance with Section 2, Rule II of these
Rules, as amended. It shall also approve the
proposed agenda of the meetings of the Board en
banc. (Emphases supplied.)

of the Board of Commissioners, any aggrieved party

may file a motion for reconsideration with the Board
only on the following grounds: (1) serious errors of
law which would result in grave injustice if not
corrected; and (2) newly discovered evidence.

After the HLURB Executive Committee had rendered

its Decision, the aggrieved party could still avail itself
of a system of administrative appeal, also provided in
the 1996 HLURB Rules of Procedure, as amended:

Motions for reconsideration shall be assigned to the

division from which the decision, order or ruling
originated.

RULE XII
Petition for Review
SECTION 1. Petition for Review. Any party aggrieved
by the Decision of the Regional Officer, on any legal
ground and upon payment of the review fee may file
with the Regional Office a verified Petition for Review
of such decision within thirty (30) calendar days from
receipt thereof.
In cases decided by the Executive Committee
pursuant to Rule II, Section 2 of these Rules, as
amended, the verified Petition shall be filed with the
Executive Committee within thirty (30) calendar days
from receipt of the Committees Decision. Copy of
such petition shall be furnished the other party and
the Board of Commissioners. No motion for
reconsideration or mere notice of petition for review
of the decision shall be entertained.
Within ten (10) calendar days from receipt of the
petition, the Regional Officer, or the Executive
Committee, as the case may be, shall elevate the
records to the Board of Commissioner together with
the summary of proceedings before the Regional
Office. The Petition for Review of a decision rendered
by the Executive Committee shall betaken
cognizance of by the Board en banc.
RULE XVIII
Appeal from Board Decisions
SECTION 1.
Motion for Reconsideration. Within the period for
filing an appeal from a Board decision, order or ruling

Only one (1) motion for reconsideration shall be

entertained.

SECTION 2. Appeal. Any party may upon notice to

the Board and the other party appeal a decision
rendered by the Board of Commissioners en banc or
by one of its divisions to the Office of the President
within fifteen (15) calendar days from receipt thereof,
in accordance with P.D. No. 1344 and A.O. No. 18
Series of 1987.
RULE XIX
Entry of Judgment
xxxx
SECTION 2. Rules on Finality. For purposes of
determining when a decision or order has become
final and executory for purposes of entry in the Book
of Judgment, the following shall be observed:
a. Unless otherwise provided in a decision or
resolution rendered by the Regional Officer, the
Executive Committee, or the Board of
Commissioners, as the case may be, the orders
contained therein shall become final as regards a
party thirty (30) calendar days after the date of
receipt thereof and no petition for review or appeal
therefrom has been filed within the said period.
(Emphases supplied.)
There is no showing that respondents availed
themselves of the afore-mentioned administrative
remedies prior to instituting Civil Case No. Br. 23632-2000 before the RTC. While there are accepted
exceptions to the principle of exhaustion of
administrative remedies and the doctrine of primary
jurisdiction,30 respondents never asserted nor argued
any of them. Thus, there is no cogent reason for the

Court to apply the exceptions instead of the general

rule to this case.
Ordinarily, failure to comply with the principle of
exhaustion of administrative remedies and the
doctrine of primary jurisdiction will result in the
dismissal of the case for lack of cause of action.
However, the Court herein will not go to the extent of
entirely dismissing Civil Case No. Br. 23-632-2000.
The Court does not lose sight of the fact that
respondents Complaint in Civil Case No. Br. 23-6322000 is primarily for abatement of nuisance; and
respondents alleged the lack of HLURB requirements
for the cellular base station, not to seek nullification
of petitioners locational clearance, but to support
their chief argument that said cellular base station is
a nuisance which needs to be abated. The issue of
whether or not the locational clearance for said
cellular base station is valid is actually separate and
distinct from the issue of whether or not the cellular
base station is a nuisance; one is not necessarily
determinative of the other. While the first is within
the primary jurisdiction of the HLURB and, therefore,
premature for the courts to rule upon in the present
case, the latter is within the jurisdiction of the courts
to determine but only after trial proper.
On the declaration of the Court of
Appeals that petitioners cellular
base station is a nuisance that must
be abated
Article 694 of the Civil Code defines nuisance as:
ART. 694. A nuisance is any act, omission,
establishment, business, condition of property, or
anything else which:
(1) Injures or endangers the health or safety of
others; or
(2) Annoys or offends the senses; or
(3) Shocks, defies or disregards decency or morality;
or
(4) Obstructs or interferes with the free passage of
any public highway or street, or any body of water; or
(5) Hinders or impairs the use of property.

The term "nuisance" is so comprehensive that it has

been applied to almost all ways which have
interfered with the rights of the citizens, either in
person, property, the enjoyment of his property, or
his comfort.31
The Court, in AC Enterprises, Inc. v. Frabelle
Properties Corporation,32 settled that a simple suit for
abatement of nuisance, being incapable of pecuniary
estimation, is within the exclusive jurisdiction of the
RTC. Although respondents also prayed for judgment
for moral and exemplary damages, attorneys fees,
and litigation expenses, such claims are merely
incidental to or as a consequence of, their principal
relief.
Nonetheless, while jurisdiction over respondents
Complaint for abatement of nuisance lies with the
courts, the respective judgments of the RTC and the
Court of Appeals cannot be upheld.
At the outset, the RTC erred in granting petitioners
Motion for Summary Judgment and ordering the
dismissal of respondents Complaint in Civil Case No.
Br. 23-632-2000.
Summary judgments are governed by Rule 35 of the
Rules of Court, pertinent provisions of which state:
SEC. 2. Summary judgment for defending party. A
party against whom a claim, counterclaim, or crossclaim is asserted or a declaratory relief is sought
may, at any time, move with supporting affidavits,
depositions or admissions for a summary judgment in
his favor as to all or any part thereof.
SEC. 3. Motion and proceedings thereon. The
motion shall be served at least ten (10) days before
the time specified for the hearing. The adverse party
may serve opposing affidavits, depositions, or
admissions at least three (3) days before the hearing.
After the hearing, the judgment sought shall be
rendered forthwith if the pleadings, supporting
affidavits, depositions, and admissions on file, show
that, except as to the amount of damages, there is
no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of
law. (Emphases supplied.)

In Rivera v. Solidbank Corporation,33 the Court

discussed extensively when a summary judgment is
proper:
For a summary judgment to be proper, the movant
must establish two requisites: (a) there must be no
genuine issue as to any material fact, except for the
amount of damages; and (b) the party presenting the
motion for summary judgment must be entitled to a
judgment as a matter of law. Where, on the basis of
the pleadings of a moving party, including
documents appended thereto, no genuine issue as to
a material fact exists, the burden to produce a
genuine issue shifts to the opposing party. If the
opposing party fails, the moving party is entitled to a
summary judgment.
A genuine issue is an issue of fact which requires the
presentation of evidence as distinguished from an
issue which is a sham, fictitious, contrived or a false
claim.
The trial court can determine a genuine issue on the
basis of the pleadings, admissions, documents,
affidavits or counter affidavits submitted by the
parties. When the facts as pleaded appear
uncontested or undisputed, then there is no real or
genuine issue or question as to any fact and
summary judgment called for. On the other hand,
where the facts pleaded by the parties are disputed
or contested, proceedings for a summary judgment
cannot take the place of a trial. The evidence on
record must be viewed in light most favorable to the
party opposing the motion who must be given the
benefit of all favorable inferences as can reasonably
be drawn from the evidence.
Courts must be critical of the papers presented by
the moving party and not of the papers/documents in
opposition thereto. Conclusory assertions are
insufficient to raise an issue of material fact. A party
cannot create a genuine dispute of material fact
through mere speculations or compilation of
differences. He may not create an issue of fact
through bald assertions, unsupported contentions
and conclusory statements. He must do more than
rely upon allegations but must come forward with
specific facts in support of a claim. Where the factual
context makes his claim implausible, he must come
forward with more persuasive evidence

demonstrating a genuine issue for trial. (Emphases

supplied; citations omitted.)
Judging by the aforequoted standards, summary
judgment cannot be rendered in this case as there
are clearly factual issues disputed or contested by
the parties. As respondents correctly argued in their
Opposition to petitioners Motion for Summary
Judgment:
1. Contrary to the claim of petitioner, there are
several genuine issues as to the cause of action and
material facts related to the complaint. For one there
is an issue on the structural integrity of the tower,
the ultra high frequency (UHF) radio wave emission
radiated by the communications tower affecting the
life, health and well being of the[respondents] and
the barangay residents, especially their children.
Also, the noxious/deleterious fumes and the noise
produce[d] by the standby generator and the danger
posted by the tower if it collapses in regard to life
and limb as well as the property of the [respondents]
particularly those whose houses abut, or are
near/within the periphery of the communications
tower. x x x34
Likewise constituting real or genuine issues for trial,
which arose from subsequent events, are the
following: whether the generator subject of
respondents Complaint had been removed; whether
said generator had been replaced by another that
produces as much or even more noise and fumes;
and whether the generator is a nuisance that can be
abated separately from the rest of the cellular base
station.
Furthermore, the Court demonstrated in AC
Enterprises, Inc. the extensive factual considerations
of a court before it can arrive at a judgment in an
action for abatement of nuisance:
Whether or not noise emanating from a blower of the
air conditioning units of the Feliza Building is
nuisance is to be resolved only by the court in due
course of proceedings.1wphi1 The plaintiff must
prove that the noise is a nuisance and the
consequences thereof. Noise is not a nuisance per se.
It may be of such a character as to constitute a
nuisance, even though it arises from the operation of
a lawful business, only if it affects injuriously the

health or comfort of ordinary people in the vicinity to

an unreasonable extent. Injury to a particular person
in a peculiar position or of especially sensitive
characteristics will not render the noise an actionable
nuisance. In the conditions of present living, noise
seems inseparable from the conduct of many
necessary occupations. Its presence is a nuisance in
the popular sense in which that word is used, but in
the absence of statute, noise becomes actionable
only when it passes the limits of reasonable
adjustment to the conditions of the locality and of
the needs of the maker to the needs of the listener.
What those limits are cannot be fixed by any definite
measure of quantity or quality; they depend upon the
circumstances of the particular case. They may be
affected, but are not controlled, by zoning
ordinances. The delimitation of designated areas to
use for manufacturing, industry or general business
is not a license to emit every noise profitably
attending the conduct of any one of them.
The test is whether rights of property, of health or of
comfort are so injuriously affected by the noise in
question that the sufferer is subjected to a loss which
goes beyond the reasonable limit imposed upon him
by the condition of living, or of holding property, in a
particular locality in fact devoted to uses which
involve the emission of noise although ordinary care
is taken to confine it within reasonable bounds; or in
the vicinity of property of another owner who, though
creating a noise, is acting with reasonable regard for
the rights of those affected by it.
Commercial and industrial activities which are lawful
in themselves may become nuisances if they are so
offensive to the senses that they render the
enjoyment of life and property uncomfortable. The
fact that the cause of the complaint must be
substantial has often led to expressions in the
opinions that to be a nuisance the noise must be
deafening or loud or excessive and unreasonable.
The determining factor when noise alone is the cause
of complaint is not its intensity or volume. It is that
the noise is of such character as to produce actual
physical discomfort and annoyance to a person of
ordinary sensibilities, rendering adjacent property
less comfortable and valuable. If the noise does that
it can well be said to be substantial and
unreasonable in degree, and reasonableness is a
question of fact dependent upon all the

circumstances and conditions. There can be no fixed

standard as to what kind of noise constitutes a
nuisance.
The courts have made it clear that in every case the
question is one of reasonableness. What is a
reasonable use of ones property and whether a
particular use is an unreasonable invasion of
anothers use and enjoyment of his property so as to
constitute a nuisance cannot be determined by exact
rules, but must necessarily depend upon the
circumstances of each case, such as locality and the
character of the surroundings, the nature, utility and
social value of the use, the extent and nature of the
harm involved, the nature, utility and social value of
the use or enjoyment invaded, and the like.
Persons who live or work in thickly populated
business districts must necessarily endure the usual
annoyances and of those trades and businesses
which are properly located and carried on in the
neighborhood where they live or work. But these
annoyances and discomforts must not be more than
those ordinarily to be expected in the community or
district, and which are incident to the lawful conduct
of such trades and businesses. If they exceed what
might be reasonably expected and cause
unnecessary harm, then the court will grant relief.
A finding by the LGU that the noise quality standards
under the law have not been complied with is not a
prerequisite nor constitutes indispensable evidence
to prove that the defendant is or is not liable for a
nuisance and for damages. Such finding is merely
corroborative to the testimonial and/or other
evidence to be presented by the parties. The
exercise of due care by the owner of a business in its
operation does not constitute a defense where,
notwithstanding the same, the business as
conducted, seriously affects the rights of those in its
vicinity.35(Citations omitted.)
A reading of the RTC Order dated January 16, 2001
readily shows that the trial court did not take into
account any of the foregoing considerations or tests
before summarily dismissing Civil Case No. Br. 23632-2000. The reasoning of the RTC that similar
cellular base stations are scattered in heavily
populated areas nationwide and are not declared
nuisances is unacceptable. As to whether or not this

specific cellular base station of petitioner is a

nuisance to respondents is largely dependent on the
particular factual circumstances involved in the
instant case, which is exactly why a trial for threshing
out disputed or contested factual issues is
indispensable. Evidently, it was the RTC which
engaged in speculations and unsubstantiated
conclusions.
For the same reasons cited above, without
presentation by the parties of evidence on the
contested or disputed facts, there was no factual
basis for declaring petitioner's cellular base station a
nuisance and ordering petitioner to cease and desist
from operating the same.
Given the equally important interests of the parties in
this case, i.e., on one hand, respondents' health,
safety, and property, and on the other, petitioner's
business interest and the public's need for accessible
and better cellular mobile telephone services, the
wise and prudent course to take is to remand the
case to the RTC for trial and give the parties the
opportunity to prove their respective factual claims.
WHEREFORE, premises considered, the instant
Petition is PARTIALLY GRANTED. The Decision dated
July 16, 2004 and Resolution dated December 9,
2004 of the Court of Appeals in CA-G.R. CV No. 71337
are REVERSED and SET ASIDE. Let the records of the
case be REMANDED to the Regional Trial Court,
Branch 23, of Roxas, Isabela, which is DIRECTED to
reinstate Civil Case No. Br. 23-632-2000 to its docket
and proceed with the trial and adjudication thereof
with appropriate dispatch in accordance with this
Decision.
SO ORDERED.
SAN MIGUEL VS PEREZ
FACTS: S The pendency of an administrative case for
specific performance brought by the buyer of
residential subdivision lots in the Housing and Land
Use Regulatory Board (HLURB) to compel the seller to
deliver the transfer certificates of title (TCTs) of the
fully paid lots is properly considered a ground to
suspend a criminal prosecution for violation of
Section 25 of Presidential Decree No. 9571 on the
ground of a prejudicial question. The administrative

determination is a logical antecedent of the

resolution of the criminal charges based on nondelivery of the TCTs.
Antecedents
Petitioner San Miguel Properties Inc. (San Miguel
Properties), a domestic corporation engaged in the
real estate business, purchased in 1992, 1993 and
April 1993 from B.F. Homes, Inc. (BF Homes), then
represented by Atty. Florencio B. Orendain (Orendain)
as its duly authorized rehabilitation receiver
appointed by the Securities and Exchange
Commission (SEC),2 130 residential lots situated in its
subdivision BF Homes Paraaque, containing a total
area of 44,345 square meters for the aggregate price
of P106,248,000.00. The transactions were embodied
in three separate deeds of sale.3 The TCTs covering
the lots bought under the first and second deeds
were fully delivered to San Miguel Properties, but 20
TCTs covering 20 of the 41 parcels of land with a total
area of 15,565 square meters purchased under the
third deed of sale, executed in April 1993 and for
which San Miguel Properties paid the full price
of P39,122,627.00, were not delivered to San Miguel
Properties.
On its part, BF Homes claimed that it withheld the
delivery of the 20 TCTs for parcels of land purchased
under the third deed of sale because Atty. Orendain
had ceased to be its rehabilitation receiver at the
time of the transactions after being meanwhile
replaced as receiver by FBO Network Management,
Inc. on May 17, 1989 pursuant to an order from the
SEC.4
BF Homes refused to deliver the 20 TCTs despite
demands. Thus, on August 15, 2000, San Miguel
Properties filed a complaint-affidavit in the Office of
the City Prosecutor of Las Pias City (OCP Las Pias)
charging respondent directors and officers of BF
Homes with non-delivery of titles in violation of
Section 25, in relation to Section 39, both of
Presidential Decree No. 957 (I.S. No. 00-2256).5
At the same time, San Miguel Properties sued BF
Homes for specific performance in the HLURB (HLURB
Case No. REM-082400-11183),6 praying to compel BF
Homes to release the 20 TCTs in its favor.

In their joint counter-affidavit submitted in I.S. No.

00-2256,7 respondent directors and officers of BF
Homes refuted San Miguel Properties assertions by
contending that: (a) San Miguel Properties claim was
not legally demandable because Atty. Orendain did
not have the authority to sell the 130 lots in 1992
and 1993 due to his having been replaced as BF
Homes rehabilitation receiver by the SEC on May 17,
1989; (b) the deeds of sale conveying the lots were
irregular for being undated and unnotarized; (c) the
claim should have been brought to the SEC because
BF Homes was under receivership; (d) in receivership
cases, it was essential to suspend all claims against a
distressed corporation in order to enable the receiver
to effectively exercise its powers free from judicial
and extra-judicial interference that could unduly
hinder the rescue of the distressed company; and (e)
the lots involved were under custodia legis in view of
the pending receivership proceedings, necessarily
stripping the OCP Las Pias of the jurisdiction to
proceed in the action.
On October 10, 2000, San Miguel Properties filed a
motion to suspend proceedings in the OCP Las
Pias,8 citing the pendency of BF Homes
receivership case in the SEC. In its
comment/opposition, BF Homes opposed the motion
to suspend. In the meantime, however, the SEC
terminated BF Homes receivership on September 12,
2000, prompting San Miguel Properties to file on
October 27, 2000 a reply to BF Homes
comment/opposition coupled with a motion to
withdraw the sought suspension of proceedings due
to the intervening termination of the receivership.9
On October 23, 2000, the OCP Las Pias rendered its
resolution,10 dismissing San Miguel Properties
criminal complaint for violation of Presidential Decree
No. 957 on the ground that no action could be filed
by or against a receiver without leave from the SEC
that had appointed him; that the implementation of
the provisions of Presidential Decree No. 957
exclusively pertained under the jurisdiction of the
HLURB; that there existed a prejudicial question
necessitating the suspension of the criminal action
until after the issue on the liability of the distressed
BF Homes was first determined by the SEC en banc
or by the HLURB; and that no prior resort to
administrative jurisdiction had been made; that there
appeared to be no probable cause to indict

respondents for not being the actual signatories in

the three deeds of sale.
On February 20, 2001, the OCP Las Pias denied San
Miguel Properties motion for reconsideration filed on
November 28, 2000, holding that BF Homes
directors and officers could not be held liable for the
non-delivery of the TCTs under Presidential Decree
No. 957 without a definite ruling on the legality of
Atty. Orendains actions; and that the criminal liability
would attach only after BF Homes did not comply
with a directive of the HLURB directing it to deliver
the titles.11
San Miguel Properties appealed the resolutions of the
OCP Las Pias to the Department of Justice (DOJ), but
the DOJ Secretary denied the appeal on October 15,
2001, holding:
After a careful review of the evidence on record, we
find no cogent reason to disturb the ruling of the City
Prosecutor of Las Pias City. Established
jurisprudence supports the position taken by the City
Prosecutor concerned.
There is no dispute that aside from the instant
complaint for violation of PD 957, there is still
pending with the Housing and Land Use Resulatory
Board (HLURB, for short) a complaint for specific
performance where the HLURB is called upon to
inquire into, and rule on, the validity of the sales
transactions involving the lots in question and
entered into by Atty. Orendain for and in behalf of BF
Homes.
As early as in the case of Solid Homes, Inc. vs.
Payawal, 177 SCRA 72, the Supreme Court had ruled
that the HLURB has exclusive jurisdiction over cases
involving real estate business and practices under PD
957. This is reiterated in the subsequent cases of
Union Bank of the Philippines versus HLURB, G.R.
[No.] 953364, June 29, 1992 and C.T. Torres
Enterprises vs. Hilionada, 191 SCRA 286.
The said ruling simply means that unless and until
the HLURB rules on the validity of the transactions
involving the lands in question with specific reference
to the capacity of Atty. Orendain to bind BF Homes in
the said transactions, there is as yet no basis to
charge criminally respondents for non-delivery of the

subject land titles. In other words, complainant

cannot invoke the penal provision of PD 957 until
such time that the HLURB shall have ruled and
decided on the validity of the transactions involving
the lots in question.
WHEREFORE, the appeal is hereby DENIED.

as a result of a pending cadastral suit in another

tribunal.
City of Pasig vs. COMELEC is yet another exception
where a civil action involving a boundary dispute was
considered a prejudicial question which must be
resolved prior to an administrative proceeding for the
holding of a plebiscite on the affected areas.

Ruling of the CA
Undaunted, San Miguel Properties elevated the DOJs
resolutions to the CA on certiorari and mandamus
(C.A.-G.R. SP No. 73008), contending that respondent
DOJ Secretary had acted with grave abuse in denying
their appeal and in refusing to charge the directors
and officers of BF Homes with the violation of
Presidential Decree No. 957. San Miguel Properties
submitted the issue of whether or not HLURB Case
No. REM-082400-11183 presented a prejudicial
question that called for the suspension of the
criminal action for violation of Presidential Decree No.
957.
In its assailed decision promulgated on February 24,
2004 in C.A.-G.R. SP No. 73008,14 the CA dismissed
San Miguel Properties petition, holding and ruling as
follows:
From the foregoing, the conclusion that may be
drawn is that the rule on prejudicial question
generally applies to civil and criminal actions only.
However, an exception to this rule is provided in
Quiambao vs. Osorio cited by the respondents. In this
case, an issue in an administrative case was
considered a prejudicial question to the resolution of
a civil case which, consequently, warranted the
suspension of the latter until after termination of the
administrative proceedings.
Quiambao vs. Osorio is not the only instance when
the Supreme Court relaxed the application of the rule
on prejudicial question.
In Tamin vs. CA involving two (2) civil actions, the
Highest Court similarly applied the rule on prejudicial
question when it directed petitioner therein to put up
a bond for just compensation should the demolition
of private respondents building proved to be illegal

In fact, in Vidad vs. RTC of Negros Oriental, Br. 42, it

was ruled that in the interest of good order, courts
can suspend action in one case pending
determination of another case closely interrelated or
interlinked with it.
It thus appears that public respondent did not act
with grave abuse of discretion x x x when he applied
the rule on prejudicial question to the instant
proceedings considering that the issue on the validity
of the sale transactions x x x by x x x Orendain in
behalf of BF Homes, Inc., is closely intertwined with
the purported criminal culpability of private
respondents, as officers/directors of BF Homes, Inc.,
arising from their failure to deliver the titles of the
parcels of land included in the questioned
conveyance.
All told, to sustain the petitioners theory that the
result of the HLURB proceedings is not determinative
of the criminal liability of private respondents under
PD 957 would be to espouse an absurdity. If we were
to assume that the HLURB finds BFHI under no
obligation to delve the subject titles, it would be
highly irregular and contrary to the ends of justice to
pursue a criminal case against private respondents
for the non-delivery of certificates of title which they
are not under any legal obligation to turn over in the
first place. (Bold emphasis supplied)
On a final note, absent grave abuse of discretion on
the part of the prosecutorial arm of the government
as represented by herein public respondent, courts
will not interfere with the discretion of a public
prosecutor in prosecuting or dismissing a complaint
filed before him. A public prosecutor, by the nature of
his office, is under no compulsion to file a criminal
information where no clear legal justification has
been shown, and no sufficient evidence of guilt nor
prima facie case has been established by the
complaining party.

WHEREFORE, premises considered, the instant

Petition for Certiorari and Mandamus is hereby
DENIED. The Resolutions dated 15 October 2001 and
12 July 2002 of the Department of Justice are
AFFIRMED.
SO ORDERED.

15

The CA denied San Miguel Properties motion for

reconsideration on January 18, 2005.1
ISSUE: THE COURT OF APPEALS COMMITTED
GRAVE, SERIOUS AND REVERSIBLE ERRORS
WHEN IT DISMISSED PETITIONERS CERTIORARI
AND MANDAMUS PETITION TO ORDER AND
DIRECT RESPONDENT SECRETARY TO INDICT
RESPONDENTS FOR VIOLATION OF SECTION 25,
PD. 957 .
RULING: S It is relevant at this juncture to mention
the outcome of the action for specific performance
and damages that San Miguel Properties instituted in
the HLURB simultaneously with its filing of the
complaint for violation of Presidential Decree No.
957. On January 25, 2002, the HLURB Arbiter ruled
that the HLURB was inclined to suspend the
proceedings until the SEC resolved the issue of Atty.
Orendains authority to enter into the transactions in
BF Homes behalf, because the final resolution by the
SEC was a logical antecedent to the determination of
the issue involved in the complaint before the
HLURB. Upon appeal, the HLURB Board of
Commissioners (HLURB Board), citing the doctrine of
primary jurisdiction, affirmed the HLURB Arbiters
decision, holding that although no prejudicial
question could arise, strictly speaking, if one case
was civil and the other administrative, it nonetheless
opted to suspend its action on the cases pending the
final outcome of the administrative proceeding in the
interest of good order.18
Not content with the outcome, San Miguel Properties
appealed to the Office of the President (OP), arguing
that the HLURB erred in suspending the proceedings.
On January 27, 2004, the OP reversed the HLURB
Boards ruling, holding thusly:
The basic complaint in this case is one for specific
performance under Section 25 of the Presidential

Decree (PD) 957 "The Subdivision and

Condominium Buyers Protective."
As early as August 1987, the Supreme Court already
recognized the authority of the HLURB, as successor
agency of the National Housing Authority (NHA), to
regulate, pursuant to PD 957, in relation to PD 1344,
the real estate trade, with exclusive original
jurisdiction to hear and decide cases "involving
specific performance of contractual and statutory
obligation filed by buyers of subdivision lots
against the owner, developer, dealer, broker or
salesman," the HLURB, in the exercise of its
adjudicatory powers and functions, "must interpret
and apply contracts, determine the rights of the
parties under these contracts and award[s] damages
whenever appropriate."
Given its clear statutory mandate, the HLURBs
decision to await for some forum to decide if ever
one is forthcoming the issue on the authority of
Orendain to dispose of subject lots before it
peremptorily resolves the basic complaint is
unwarranted, the issues thereon having been joined
and the respective position papers and the evidence
of the parties having been submitted. To us, it
behooved the HLURB to adjudicate, with the usual
dispatch, the right and obligation of the parties in
line with its own appreciation of the obtaining facts
and applicable law. To borrow from Mabubha Textile
Mills Corporation vs. Ongpin, it does not have to rely
on the finding of others to discharge this adjudicatory
functions.19
After its motion for reconsideration was denied, BF
Homes appealed to the CA (C.A.-G.R. SP No. 83631),
raising as issues: (a) whether or not the HLURB had
the jurisdiction to decide with finality the question of
Atty. Orendains authority to enter into the
transaction with San Miguel Properties in BF Homes
behalf, and rule on the rights and obligations of the
parties to the contract; and (b) whether or not the
HLURB properly suspended the proceedings until the
SEC resolved with finality the matter regarding such
authority of Atty. Orendain.
The CA promulgated its decision in C.A.-G.R. SP No.
83631,20 decreeing that the HLURB, not the SEC, had
jurisdiction over San Miguel Properties complaint. It
affirmed the OPs decision and ordered the remand of

the case to the HLURB for further proceedings on the

ground that the case involved matters within the
HLURBs competence and expertise pursuant to the
doctrine of primary jurisdiction, viz:
[T]he High Court has consistently ruled that the NHA
or the HLURB has jurisdiction over complaints arising
from contracts between the subdivision developer
and the lot buyer or those aimed at compelling the
subdivision developer to comply with its contractual
and statutory obligations.
Hence, the HLURB should take jurisdiction over
respondents complaint because it pertains to
matters within the HLURBs competence and
expertise. The proceedings before the HLURB should
not be suspended.
While We sustain the Office of the President, the case
must be remanded to the HLURB. This is in
recognition of the doctrine of primary jurisdiction.
The fairest and most equitable course to take under
the circumstances is to remand the case to the
HLURB for the proper presentation of evidence. 21
Did the Secretary of Justice commit grave abuse of
discretion in upholding the dismissal of San Miguel
Properties criminal complaint for violation of
Presidential Decree No. 957 for lack of probable
cause and for reason of a prejudicial question?
The question boils down to whether the HLURB
administrative case brought to compel the delivery of
the TCTs could be a reason to suspend the
proceedings on the criminal complaint for the
violation of Section 25 of Presidential Decree No. 957
on the ground of a prejudicial question.
Ruling of the Court
The petition has no merit.
1.
Action for specific performance, even if pending in
the HLURB, an administrative agency, raises a
prejudicial question BF Homes posture that the
administrative case for specific performance in the
HLURB posed a prejudicial question that must first be
determined before the criminal case for violation of

Section 25 of Presidential Decree No. 957 could be

resolved is correct.
A prejudicial question is understood in law to be that
which arises in a case the resolution of which is a
logical antecedent of the issue involved in the
criminal case, and the cognizance of which pertains
to another tribunal. It is determinative of the criminal
case, but the jurisdiction to try and resolve it is
lodged in another court or tribunal. It is based on a
fact distinct and separate from the crime but is so
intimately connected with the crime that it
determines the guilt or innocence of the
accused.22 The rationale behind the principle of
prejudicial question is to avoid conflicting
decisions.23 The essential elements of a prejudicial
question are provided in Section 7, Rule 111 of the
Rules of Court, to wit: (a) the previously instituted
civil action involves an issue similar or intimately
related to the issue raised in the subsequent criminal
action, and (b) the resolution of such issue
determines whether or not the criminal action may
proceed.
The concept of a prejudicial question involves a civil
action and a criminal case. Yet, contrary to San
Miguel Properties submission that there could be no
prejudicial question to speak of because no civil
action where the prejudicial question arose was
pending, the action for specific performance in the
HLURB raises a prejudicial question that sufficed to
suspend the proceedings determining the charge for
the criminal violation of Section 2524 of Presidential
Decree No. 957. This is true simply because the
action for specific performance was an action civil in
nature but could not be instituted elsewhere except
in the HLURB, whose jurisdiction over the action was
exclusive and original.25
The determination of whether the proceedings ought
to be suspended because of a prejudicial question
rested on whether the facts and issues raised in the
pleadings in the specific performance case were so
related with the issues raised in the criminal
complaint for the violation of Presidential Decree No.
957, such that the resolution of the issues in the
former would be determinative of the question of
guilt in the criminal case. An examination of the
nature of the two cases involved is thus necessary.

An action for specific performance is the remedy to

demand the exact performance of a contract in the
specific form in which it was made, or according to
the precise terms agreed upon by a party bound to
fulfill it.26 Evidently, before the remedy of specific
performance is availed of, there must first be a
breach of the contract.27 The remedy has its roots in
Article 1191 of the Civil Code, which reads:
Article 1191. The power to rescind obligations is
implied in reciprocal ones, in case one of the obligors
should not comply with what is incumbent upon him.
The injured party may choose between the fulfillment
and the rescission of the obligation, with the
payment of damages in either case. He may also
seek rescission, even after he has chosen fulfillment,
if the latter should become impossible. x x x
(Emphasis supplied)
Accordingly, the injured party may choose between
specific performance or rescission with damages. As
presently worded, Article 1191 speaks of the remedy
of rescission in reciprocal obligations within the
context of Article 1124 of the former Civil Code which
used the term resolution. The remedy of resolution
applied only to reciprocal obligations, such that a
partys breach of the contract equated to a tacit
resolutory condition that entitled the injured party to
rescission. The present article, as in the former one,
contemplates alternative remedies for the injured
party who is granted the option to pursue, as
principal actions, either the rescission or the specific
performance of the obligation, with payment of
damages in either case.28
On the other hand, Presidential Decree No. 957 is a
law that regulates the sale of subdivision lots and
condominiums in view of the increasing number of
incidents wherein "real estate subdivision owners,
developers, operators, and/or sellers have reneged
on their representations and obligations to provide
and maintain properly" the basic requirements and
amenities, as well as of reports of alarming
magnitude of swindling and fraudulent manipulations
perpetrated by unscrupulous subdivision and
condominium sellers and operators,29 such as failure
to deliver titles to the buyers or titles free from liens
and encumbrances. Presidential Decree No. 957
authorizes the suspension and revocation of the

registration and license of the real estate subdivision

owners, developers, operators, and/or sellers in
certain instances, as well as provides the procedure
to be observed in such instances; it prescribes
administrative fines and other penalties in case of
violation of, or non-compliance with its provisions.
Conformably with the foregoing, the action for
specific performance in the HLURB would determine
whether or not San Miguel Properties was legally
entitled to demand the delivery of the remaining 20
TCTs, while the criminal action would decide whether
or not BF Homes directors and officers were
criminally liable for withholding the 20 TCTs. The
resolution of the former must obviously precede that
of the latter, for should the HLURB hold San Miguel
Properties to be not entitled to the delivery of the 20
TCTs because Atty. Orendain did not have the
authority to represent BF Homes in the sale due to
his receivership having been terminated by the SEC,
the basis for the criminal liability for the violation of
Section 25 of Presidential Decree No. 957 would
evaporate, thereby negating the need to proceed
with the criminal case.
Worthy to note at this juncture is that a prejudicial
question need not conclusively resolve the guilt or
innocence of the accused. It is enough for the
prejudicial question to simply test the sufficiency of
the allegations in the information in order to sustain
the further prosecution of the criminal case. A party
who raises a prejudicial question is deemed to have
hypothetically admitted that all the essential
elements of the crime have been adequately alleged
in the information, considering that the Prosecution
has not yet presented a single piece of evidence on
the indictment or may not have rested its case. A
challenge to the allegations in the information on the
ground of prejudicial question is in effect a question
on the merits of the criminal charge through a noncriminal suit.30
2.
Doctrine of primary jurisdiction is applicable
That the action for specific performance was an
administrative case pending in the HLURB, instead of
in a court of law, was of no consequence at all. As
earlier mentioned, the action for specific

performance, although civil in nature, could be

brought only in the HLURB. This situation conforms to
the doctrine of primary jurisdiction. There has been
of late a proliferation of administrative agencies,
mostly regulatory in function. It is in favor of these
agencies that the doctrine of primary jurisdiction is
frequently invoked, not to defeat the resort to the
judicial adjudication of controversies but to rely on
the expertise, specialized skills, and knowledge of
such agencies in their resolution. The Court has
observed that one thrust of the proliferation is that
the interpretation of contracts and the determination
of private rights under contracts are no longer a
uniquely judicial function exercisable only by the
regular courts.31
The doctrine of primary jurisdiction has been
increasingly called into play on matters demanding
the special competence of administrative agencies
even if such matters are at the same time within the
jurisdiction of the courts. A case that requires for its
determination the expertise, specialized skills, and
knowledge of some administrative board or
commission because it involves technical matters or
intricate questions of fact, relief must first be
obtained in an appropriate administrative proceeding
before a remedy will be supplied by the courts
although the matter comes within the jurisdiction of
the courts. The application of the doctrine does not
call for the dismissal of the case in the court but only
for its suspension until after the matters within the
competence of the administrative body are threshed
out and determined.32
To accord with the doctrine of primary jurisdiction,
the courts cannot and will not determine a
controversy involving a question within the
competence of an administrative tribunal, the
controversy having been so placed within the special
competence of the administrative tribunal under a
regulatory scheme. In that instance, the judicial
process is suspended pending referral to the
administrative body for its view on the matter in
dispute. Consequently, if the courts cannot resolve a
question that is within the legal competence of an
administrative body prior to the resolution of that
question by the latter, especially where the question
demands the exercise of sound administrative
discretion requiring the special knowledge,
experience, and services of the administrative

agency to ascertain technical and intricate matters of

fact, and a uniformity of ruling is essential to comply
with the purposes of the regulatory statute
administered, suspension or dismissal of the action is
proper.33
3.
Other submissions of petitioner are unwarranted
It is not tenable for San Miguel Properties to argue
that the character of a violation of Section 25 of
Presidential Decree No. 957 as malum prohibitum, by
which criminal liability attached to BF Homes
directors and officers by the mere failure to deliver
the TCTs, already rendered the suspension
unsustainable.34 The mere fact that an act or
omission was malum prohibitum did not do away
with the initiative inherent in every court to avoid an
absurd result by means of rendering a reasonable
interpretation and application of the procedural law.
Indeed, the procedural law must always be given a
reasonable construction to preclude absurdity in its
application.35 Hence, a literal application of the
principle governing prejudicial questions is to be
eschewed if such application would produce unjust
and absurd results or unreasonable consequences.
San Miguel Properties further submits that
respondents could not validly raise the prejudicial
question as a reason to suspend the criminal
proceedings because respondents had not
themselves initiated either the action for specific
performance or the criminal action.1wphi1 It
contends that the defense of a prejudicial question
arising from the filing of a related case could only be
raised by the party who filed or initiated said related
case.
The submission is unfounded. The rule on prejudicial
question makes no distinction as to who is allowed to
raise the defense. Ubi lex non distinguit nec nos
distinguere debemos. When the law makes no
distinction, we ought not to distinguish.36
WHEREFORE, the Court AFFIRMS the decision
promulgated on February 24, 2004 by the Court of
Appeals in CA-G.R. SP NO. 73008; and ORDERS
petitioner to pay the costs of suit.

SO ORDERED.
ADDITION HILLS VS MEGA WORLD
FACTS: s This is a petition for review
on certiorari under Rule 45 of the 1997 Rules of Civil
Procedure of the Decision[1] dated May 16, 2006 as
well as the Resolution[2] dated October 5, 2006 of the
Court of Appeals in CA-G.R. CV No. 63439, entitled
ADDITION HILLS MANDALUYONG CIVIC & SOCIAL
ORGANIZATION INC. vs. MEGAWORLD PROPERTIES &
HOLDINGS, INC., WILFREDO I. IMPERIAL in his
capacity as Director, NCR, and HOUSING AND LAND
USE REGULATORY BOARD, DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES. In
effect, the appellate courts issuances reversed and
set aside the Decision[3] dated September 10, 1998
rendered by the Regional Trial Court (RTC) of Pasig
City, Branch 158 in Civil Case No. 65171.

The facts of this case, as narrated in the assailed May

16, 2006 Decision of the Court of Appeals, are as
follows:
[Private respondent] MEGAWORLD was the
registered owner of a parcel of land located along
Lee Street, Barangay Addition Hills, Mandaluyong
City with an area of 6,148 square meters, more or
less, covered by Transfer Certificate of Title (TCT) No.
12768, issued by the Register of Deeds for
Mandaluyong City.

Sometime in 1994, [private respondent]

MEGAWORLD conceptualized the construction of a
residential condominium complex on the said parcel
of land called the Wack-Wack Heights
Condominiumconsisting of a cluster of six (6) fourstorey buildings and one (1) seventeen (17) storey
tower.

[Private respondent] MEGAWORLD thereafter

secured the necessary clearances, licenses and
permits for the condominium project, including: (1) a
CLV, issued on October 25, 1994, and a Development

Permit, issued on November 11, 1994, both by the

[public respondent] HLURB; (2) an ECC, issued on
March 15, 1995, by the Department of Environment
and Natural Resources (DENR); (3) a Building Permit,
issued on February 3, 1995, by the Office of the
Building Official of Mandaluyong City; and (4) a
Barangay Clearance dated September 29, 1994, from
the office of the Barangay Chairman of Addition Hills.
Thereafter, construction of the condominium
project began, but on June 30, 1995, the plaintiffappellee AHMCSO filed a complaint before the
Regional Trial Court of Pasig City, Branch 158,
docketed as Civil Case No. 65171, for yo (sic) annul
the Building Permit, CLV, ECC and Development
Permit granted to MEGAWORLD; to prohibit the
issuance to MEGAWORLD of Certificate of
Registration and License to Sell Condominium Units;
and to permanently enjoin local and national building
officials from issuing licenses and permits to
MEGAWORLD.
On July 20, 1995, [private respondent]
MEGAWORLD filed a Motion to Dismiss the case for
lack of cause of action and that jurisdiction over the
case was with the [public respondent] HLURB and not
with the regular courts.

On July 24, 1994, the RTC denied the motion

to dismiss filed by [private respondent]
MEGAWORLD.
On August 3, 1995, [private respondent]
MEGAWORLD filed its Answer.
On November 15, 1995, pre-trial was
commenced.
Thereafter, trial on the merits ensued.[4]
The trial court rendered a Decision dated September
10, 1998 in favor of petitioner, the dispositive portion
of which reads:
WHEREFORE, in view of the foregoing, the Certificate
of Locational Viability, the Development Permit and
the Certificate of Registration and License to Sell
Condominium Units, all issued by defendant Wilfredo

I. Imperial, National Capital Region Director of the

Housing and Land Use Regulatory Boad (HLURB-NCR)
are all declared void and of no effect. The same goes
for the Building Permit issued by defendant Francisco
Mapalo of Mandaluyong City. In turn, defendant
Megaworld Properties and Holdings Inc. is directed to
rectify its Wack Wack Heights Project for it to conform
to the requirements of an R-2 zone of Mandaluyong
City and of the Metro Manila Zoning Ordinance 81-01.

Costs against these defendants.[5]

Private respondent appealed to the Court of Appeals

which issued the assailed May 16, 2006 Decision
which reversed and set aside the aforementioned
trial court ruling, the dispositive portion of which
reads:
WHEREFORE, premises considered, the September
10, 1998 Decision of the Regional Trial Court of Pasig
City, Branch 158, rendered in Civil Case No. 65171 is
hereby REVERSED and SET ASIDE and a new one
entered DISMISSING the complaint.[6]
As can be expected, petitioner moved for
reconsideration; however, the Court of Appeals
denied the motion in its assailed October 5, 2006
Resolution.
ISSUE: WHETHER OR NOT THE COURT OF
APPEALS ERRED WHEN IT FOUND THAT
PETITIONER FAILED TO EXHAUST
ADMINISTRATIVE REMEDIES BEFORE SEEKING
JUDICIAL INTERVENTION FROM THE COURTS.
RULING: S We find the petition to be without merit.
At the outset, the parties in their various pleadings
discuss issues, although ostensibly legal, actually
require the Court to make findings of fact. It is long
settled, by law and jurisprudence, that the Court is
not a trier of facts.[10] Therefore, the only relevant
issue to be resolved in this case is whether or not the
remedy sought by the petitioner in the trial court is in
violation of the legal principle of the exhaustion of
administrative remedies.

We have consistently declared that the doctrine of

exhaustion of administrative remedies is a
cornerstone of our judicial system. The thrust of the
rule is that courts must allow administrative agencies
to carry out their functions and discharge their
responsibilities within the specialized areas of their
respective competence. The rationale for this
doctrine is obvious. It entails lesser expenses and
provides for the speedier resolution of
controversies. Comity and convenience also impel
courts of justice to shy away from a dispute until the
system of administrative redress has been
completed.[11]
In the case of Republic v. Lacap,[12] we expounded on
the doctrine of exhaustion of administrative remedies
and the related doctrine of primary jurisdiction in this
wise:
The general rule is that before a party may seek the
intervention of the court, he should first avail of all
the means afforded him by administrative processes.
The issues which administrative agencies are
authorized to decide should not be summarily taken
from them and submitted to a court without first
giving such administrative agency the opportunity to
dispose of the same after due deliberation.
Corollary to the doctrine of exhaustion of
administrative remedies is the doctrine of primary
jurisdiction; that is, courts cannot or will not
determine a controversy involving a question which
is within the jurisdiction of the administrative tribunal
prior to the resolution of that question by the
administrative tribunal, where the question demands
the exercise of sound administrative discretion
requiring the special knowledge, experience and
services of the administrative tribunal to determine
technical and intricate matters of fact.[13]
It is true that the foregoing doctrine admits of
exceptions, such that in Lacap, we also held:
Nonetheless, the doctrine of exhaustion of
administrative remedies and the corollary doctrine of
primary jurisdiction, which are based on sound public
policy and practical considerations, are not inflexible
rules. There are many accepted exceptions, such as:
(a) where there is estoppel on the part of the party
invoking the doctrine; (b) where the challenged

administrative act is patently illegal, amounting to

lack of jurisdiction; (c) where there is unreasonable
delay or official inaction that will irretrievably
prejudice the complainant; (d) where the amount
involved is relatively small so as to make the rule
impractical and oppressive; (e) where the question
involved is purely legal and will ultimately have to be
decided by the courts of justice; (f) where judicial
intervention is urgent; (g) when its application may
cause great and irreparable damage; (h) where the
controverted acts violate due process; (i) when the
issue of non-exhaustion of administrative remedies
has been rendered moot; (j) when there is no other
plain, speedy and adequate remedy; (k) when strong
public interest is involved; and, (l) in quo
warranto proceedings. x x x.[14]
Upon careful consideration of the parties
contentions, we find that none of the aforementioned
exceptions exist in the case at bar.
What is apparent, however, is that petitioner
unjustifiably failed to exhaust the administrative
remedies available with the Housing and Land Use
Regulatory Board (HLURB) before seeking recourse
with the trial court. Under the rules of the HLURB
which were then in effect, particularly Sections 4 and
6 of HLURB Resolution No. R-391, Series of 1987
(Adopting the 1987 Rules of Procedure of the Housing
and Land Use Regulatory Board),[15] a complaint to
annul any permit issued by the HLURB may be filed
before the Housing and Land Use Arbiter
(HLA). Therefore, petitioners action to annul the
Certificate of Locational Viability (CLV) and the
Development Permit issued by the HLURB on October
25, 1994 and November 11, 1994, respectively, in
favor of private respondent for its Wack-Wack
Heights Condominium Project should have been
properly filed before the HLURB instead of the trial
court.
We quote with approval the Court of Appeals
discussion of this matter:
In the case at bar, plaintiff-appellee AHMCSO failed
to exhaust the available administrative remedies
before seeking judicial intervention via a petition for
annulment. The power to act as appellate body over
decisions and actions of local and regional planning
and zoning bodies and deputized official of the board

was retained by the HLURB and remained unaffected

by the devolution under the Local Government Code.
Under Section 5 of Executive Order No. 648, series of
1981, the Human Settlement Regulatory Commission
(HSRC) later renamed as Housing and Land Use
Regulatory Board (HLURB), pursuant to Section 1(c)
of Executive Order No. 90, series of 1986, has the
power to:
f) Act as the appellate body on decisions and actions
of local and regional planning and zoning bodies of
the deputized officials of the Commission, on matters
arising from the performance of these functions.

In fact, Section 4 of E.O. No. 71 affirms the power of

the HLURB to review actions of local government
units on the issuance of permits

Sec. 4. If in the course of evaluation of application

for registration and licensing of projects within its
jurisdiction, HLURB finds that a local government unit
has overlooked or mistakenly applied a certain law,
rule or standard in issuing a development permit, it
shall suspend action with a corresponding advice to
the local government concerned, so as to afford it an
opportunity to take appropriate action thereon. Such
return and advice must likewise be effected within a
period of thirty (30) days from receipt by HLURB of
the application.
Moreover, Section 18 and 19 of HSRC Administrative
Order No. 20 provides:
Section 18. Oppossition to Application. Opposition to
application shall be considered as a complaint, the
resolution of which shall be a prerequisite to any
action on the application. Complaints and other legal

processes shall be governed by the Rules of

Procedure of the Commission, and shall have the
effect of suspending the application.
Section 19. Complaints/Opposition Filed After the
Issuance of Locational Clearance. Temporary
issuance of locational permit or land transaction
approval shall be acted upon by the Office that
issued the same. Such complaint shall not
automatically suspend the locational clearance,
temporary use permit, development permit or land
transaction approval unless an order issued by the
commission to that effect.
The appropriate provisions of the Rules of Procedure
governing hearings before the Commission shall be
applied in the resolution of said complaint as well as
any motion for reconsideration that may be filed
thereto, provided that if the complaint is directed
against the certificate of zoning compliance issued
by the deputized zoning administrator, the same
shall be acted upon the Commissioner in Charge for
adjudication.

Under the rules of the HLURB then prevailing at the

time this case was filed, a complaint to annul any
permit issued by the HLURB may be filed
before the Housing and Land Use Arbiter
(HLA). The decision of the HLA may be brought
to the Board of Commissioners by Petition for
Certiorari and the decision of the Board of
Commissioners [is] appealable to the Office of
the President.[16](Citations omitted; emphases
supplied.)
It does not escape the attention of the Court that in
its Reply, petitioner admitted that it had a pending
complaint with the HLURB involving private
respondents the Development Permit, the Certificate
of Registration and License to Sell Condominium

Units, aside from complaints with the Building Official

of the Municipality (now City) of Mandaluyong and
the MMDA, when it instituted its action with the trial
court. As discussed earlier, a litigant cannot go
around the authority of the concerned administrative
agency and directly seek redress from the
courts. Thus, when the law provides for a remedy
against a certain action of an administrative board,
body, or officer, relief to the courts can be made only
after exhausting all remedies provided therein. It is
settled that the non-observance of the doctrine of
exhaustion of administrative remedies results in lack
of cause of action, which is one of the grounds in the
Rules of Court justifying the dismissal of the
complaint.[17]

In view of the foregoing discussion, we find it

unnecessary to resolve the other issues raised by the
parties.
To conclude, it is our view that the Court of Appeals
committed no reversible error in setting aside the
trial court decision and dismissing said complaint.
WHEREFORE, premises considered, the petition is
hereby DENIED. The assailed Decision dated May
16, 2006 and the Resolution dated October 5, 2006
of the Court of Appeals in CA-G.R. CV No. 63439
are AFFIRMED.
SO ORDERED.