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Republic of the Philippines

REGIONAL TRIAL COURT BRANCH 44
Municipality of Initao
Province of Misamis Oriental

Petitioner,

-versus-

Respondents,

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PETITION

Petitioner, by counsel, most respectfully avers that:

NATURE OF PETITION

This is an original action for declaratory relief under Rule 63 of

the 1997 Rules of Civil Procedure. Petitioner assails the validity of the
Barangay Ordinance No. 37, series of 2016, entitled An Ordinance
Prohibiting Construction and/or Reconstruction of Poultry House
Building within the Residential Areas of Barangay Tuod, Manticao,
Misamis Oriental and Penalizing Violators thereof and for Other
Purposes, particularly sections 4, 5, 6, and 7c.
Section 1. Who may file petition. Any person interested under a
deed, will, contract or other written instrument, whose rights
are affected by a statute, executive order or regulation,
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ordinance, or any other governmental regulation may, before

breach or violation thereof, bring an action in the appropriate
Regional Trial Court to determine any question of construction
or validity arising, and for a declaration of his rights or duties,
thereunder. (Emphases ours.)

THE PARTIES

Petitioner, (name), is a Filipino and living in Purok 8, Barangay

Tuod, Manticao, Misamis Oriental. He is a contract-grower engaging
in backyard poultry in the barangay aided by the Anak Tering
Foundation. Petitioner, in his capacity as a concerned citizen assails
the validity of Barangay Ordinance No 37.
Public respondent is the Sangguniang Barangay members of
Barangay Tuod, Municipality of Manticao, Misamis Oriental.

THE FACTS

On the 18th of January 2016, the Sangguniang Barangay of

Barangay Tuod, Manticao, Misamis Oriental enacted Barangay
Ordinance No. 37, series of 2016, entitled
An
Ordinance
Prohibiting
Construction
and/or
Reconstruction of Poultry House Building within the
Residential Areas of Barangay Tuod, Manticao, Misamis
Oriental and Penalizing Violators thereof and for Other
Purposes
through their regular session at the barangay session hall. The
pertinent provisions of Barangay Ordinance No. 37 read:
Sec. 4 - Prohibited Acts The following activities are
prohibited in this ordinance, to wit:
a. Construction of new poultry house buildings within the
residential are;

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b. Reconstruction of, renovation of or repair of any poultry

house building located within the residential area
constructed after the effectivity of this ordinance;
c. Operation and maintenance of poultry-raising business
within the residential area; and
d. Construction of and operation and maintenance of poultryraising business other than those designated by the
Barangay Government.
Sec. 5 - Penalty and Sanction Any poultry owner and
operator who violates this Ordinance as provided in Section 4
hereof shall be fined in the amount of One Thousand pesos
( Php 1,000.00 ) and shall be immediately ordered to stop
his poultry-raising business operation. However, failure of
the poultry owner and operator to cease operation despite due
notice of his violation shall opt the Barangay Government to
take appropriate legal action. . (Emphases ours.)
Sec. 6 Exemption Those poultry house buildings that are
constructed before the effectivity of this ordinance shall be
granted exemption, to wit:
a. Those that are classified as old poultry house building shall
continue its operation in poultry-raising business within next
one (1) year or until Dec 2016;
b. Provided, however, that affected poultry owners and
operators hereof shall be advised to transfer their poultry
house building and business operation in areas designated
by the Barangay Government. . (Emphases ours.)
Sec. 7 Miscellaneous Provision
c. No poultry-raising business operation shall be operated
within three hundred (200 [sic]) meters from the identified
residential area. (Emphases ours.)
Barangay Tuod, Manticao, Misamis Oriental is an agri-based
barangay and its constituents are mainly engaged in agriculture,
livestock and poultry production as their means of livelihood. It has
been observed that contract growers on poultry-raising in the
barangay supported by a non-government organization are now
increasing in numbers and are constructing their poultry houses
within the residential areas that have allegedly caused disturbance
and pollution to the resident of the said barangay.
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Last April 4, 2016 the Sangguniang Pambarangay of Tuod had

their regular session at their barangay hall and passed Resolution
No. 15, series of 2016, entitled
Resolution Humbly Requesting Anak Tering Foundation to
Stop Placement of DOC of Mr. Rio Fabruas Poultry
Building Located at Purok 8, Tuod, Manticao, Misamis
Oriental.
According to this resolution, the Barangay Government has
allegedly received many complaints from the affected residents of the
barangay on issues on health and sanitation brought by Mr. Fabruas
unregulated poultry-raising business is within the 100-meter distance
near human habitation, which they claimed to be in violation of
section 8.6.7c of P.D. 856.1 In addition, the Sangguniang Barangay
stated in their resolution that the said location has a tendency to
become a highly urbanized area because it was surrounded with
human dwellings. Finally, they expressed in their resolution that the
owner, Mr. Rio Fabrua, is violating sections 4 & 7 of Barangay
Ordinance No. 37.
In reply to Resolution No 15, the Anak Tering Foundation sent a
letter to Hon. Vincent C. Saransate, the Punong Barangay of Tuod,
Manticao confirming that they had received the aforementioned
resolution. The Anak Tering Foundation raised the following points to
the Punong Barangay as follows:
1. Purok 8, Barangay Tuod Manticao has other poultry houses,
where the poultry house of Mr. Fabrua is located, and they have
been operating for more than five (5) years;
2. There are no certain provisions of P.D. 856, especially section
8.6.7c, which states a specific distance from the residential
areas where the poultry houses should be operated or placed;
3. The Anak Tering Foundation recognized the health-related
problems brought by the backyard poultry-growing enterprise
and have found proven and tested natural enzymes/products
that control and/or eliminate these problems, which have been
used by most of their contract-growers;
4. They have not heard any person or individual who got sick due
to chicken farming, and they always remind their backyard
growers to be mindful in cleaning up their areas in order not to
cause problems in their neighbourhood;
1 Code on Sanitation of the Philippines. December 23, 1975
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5. Many backyard-growers considered poultry-raising as their

source of livelihood; and
6. It is the main objective of the Foundation to provide sustainable
and decent livelihood opportunities among marginal farmers
since no bank can lend them some money to invest in any
enterprise.
It is also noted that Barangay Ordinance No. 37 has no date of
approval and no signatures affixed by the Sangguniang Barangay
apart from their Barangay Secretary, Nanette L. Yurong. This is
technically void and inexistent since an ordinance that has no date of
approval and no signatures affixed by the Sangguniang Barangay
has no effect, which is stated in Section 54c of R.A. 7160 2 or the
Local Government Code of 1991 provides that:
Sec. 54. Approval of Ordinances. (c) Ordinances enacted by the sangguniang barangay shall,
upon approval by the majority of all its members, be signed
by the punong barangay. . (Emphases ours.)

GROUND OF THE PETITION

Petitioner most respectfully submits that the Sangguniang Barangay

of Barangay Tuod, Manticao, Misamis Oriental acted beyond its
police power in enforcing the assailed Barangay Ordinance No. 37.

DISCUSSION

The petitioner claims that a contract-grower engage in backyard

poultry-raising, Mr. Rio Fabrua is affected by the implementation of
Barangay Ordinance No. 37, which was enacted with grave abuse of
discretion amounting to lack or excess of jurisdiction, based on the
following arguments:
1. Barangay Ordinance No. 37 does not comply with the
requirements for its validity and constitutionality since it is
2 October 10, 1991
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oppressive and arbitrary, and does not regulate but prohibit

trade in engaging into backyard poultry-raising.
2. Barangay Ordinance No. 37 lacks legal basis due to P.D. 856 is
not applicable as its basis.
3. Barangay Ordinance No. 37 has no date of approval of the
ordinance and there was no signatures affixed by the Punong
Barangay and the rest of the Sangguniang Barangay members,
excluding their Barangay Secretary.
Accordingly, with all due respect to the respondent, it is most
respectfully submitted by the petitioner that in enacting the assailed
ordinance, the respondent committed grave abuse of discretion
amounting to lack or excess of jurisdiction. The following
considerations are pertinent:

Barangay Ordinance No. 37 does not Comply with

the Requirements for its Validity and Constitutionality
since it is oppressive and arbitrary, and does not
regulate but prohibit trade in engaging into backyard
poultry-raising.
.

The police power is the power vested in the legislature by the

Constitution to make, ordain, establish all manner of wholesome and
reasonable laws for the good and welfare of the State and its people. 3
It is unquestionably the power vested in the legislature by the
constitution, to make, ordain and establish all manner of whole and
reasonable laws, statutes and ordinances, either with penalties or
without, not repugnant to the Constitution, as they shall judge to be
for the good and welfare of the commonwealth, and of the subject of
the same.4 The basic purposes of police power are: (1) to promote
the general welfare, comfort and convenience of the people; 5 (2) to
promote and preserve public health; 6 (3) to promote and protect
3 Ermita-Malate vs. City Mayor of Manila G.R. No. L-15079, July 31, 1962
4 Chief Justice Shaw, in Commonwealth vs. Alger, 7 Cush. 53, 85, 61 Mass 53.
5 Association of Small Landowners vs. Secretary, 175 SCRA 343; US vs. Toribio, 15 Phil 85
6 Villanueva vs. Castaeda, September 21, 1987; DECS vs. San Diego, 180 SCRA 533 [NMAT]; Lorenzo
vs. Director of Health, 50 Phil. 595 apprehend and confine lepers in a leprosarium

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public safety;7 (4) to maintain and safeguard peace and order; 8 (5) to
protect public morals;9 and (6) to promote the economic security of
the people.10
Congress enacted the Local Government Code (LGC) as the
implementing law for the delegation to the various Local Government
Units (LGUs) of the States inherent and great powers, especially the
police power. The LGC was fashioned to delineate the specific
parameters and limitations parameters and limitations to be complied
with by each LGU in the exercise of the police power with the view of
making each LGU a fully functioning subdivision of the State subject
to the constitutional and statutory limitations.
In City of Manila vs. Laguio, Jr.,11 the Court restates the tests of
a valid ordinance thusly:

The tests of a valid ordinance are well established. A long line

of decisions has held that for an ordinance to be valid, it must
not only be within the corporate powers of the local government
unit to enact and must be passed according to the procedure
prescribed by law, it must also conform to the following
substantive requirements: (1) must not contravene the
Constitution or any statute; (2) must not be unfair or oppressive;
(3) must not be partial or discriminatory; (4) must not prohibit
but may regulate trade; (5) must be general and consistent with
public policy; and (6) must not be unreasonable.

The first substantive requirement for a valid ordinance is the

adherence to the constitutional guaranty of due process of law, which
is a constitutional safeguard against any arbitrariness on the part of
the Government, whether committed by the Executive, the
Legislature, or the Judiciary. It is a protection essential to every
7 Agustin vs. EDU, 88 SCRA 195; Taxicab Operators vs. Juinio, 119 SCRA 897
8 Guanzon vs. De Villa, 181 SCRA 623, January 30, 1990
9 De La Cruz vs. Paras, 123 SCRA 569; JMM Promotions vs. CA, 260 SCRA 319; Velasco vs. Villegas,
February 13, 1983

10 Ichong vs. Hernandez, 101 Phil. 11155

11 G.R. No. 118127. April 12, 2005
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inhabitant of the country. The guaranty is embodied in Article III, Sec.

1 of the Constitution, which provides:

Sec. 1. No person shall be deprived of life, liberty or property

without due process of law, nor shall any person be denied the
equal protection of laws.

Due process is not properly observed by the respondent

because Mr. Fabrua was denied the right to be heard and
immediately imposed the prohibition of the placement of DOC (Days
Old Chicks) of Mr. Fabruas poultry building. Moreover, despite the
alleged complaints from the affected residents on the issues on
health and sanitation received by the Sangguniang Barangay, there
was no person in the area has been reported sick due to health and
sanitation issues brought by backyard poultry-raising. Hence, there is
no sufficient exigencies to exercise the extraordinary power through the
enactment of the assailed ordinance and that it is oppressive and arbitrary.
In this petition, the properties involved in backyard poultryraising were not even inimical per se as to require to stop the
displacement of DOC of Mr. Fabruas poultry building. In addition
there absolutely was no reason why the offense prohibited by the
assailed ordinance should not have been proved first in a court of
justice, with the accused being accorded all the rights safeguarded to
him under the Constitution.
The assailed Ordinance is also invalid because it does not
regulate trade, but directly prohibited it. The power to regulate does
not include the power to prohibit. 12 It is well-known that the
Municipality of Manticao, as a fourth class municipality,13 is a rural
municipality, including its twelve (12) out of thirteen (13) barangays
and its primary economic activity is agricultural, 14 including livestock
12 People vs. Esguerra, 81 Phil 33; Vega vs. Municipal Board of Iloilo, L-6765, May 12, 1954; 39 N.J. Law,
70, Mich. 396

13 Philippine Statistics Authority

14 Local Governance Performance Management System
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raising. Most of the residents who engaged in backyard poultryraising are marginalized farmers and are struggling to make ends
meet. To immediately and prohibit them from engaging in backyard
poultry-raising, which is a decent livelihood, is a prohibition of trade.
The case of De la Cruz vs. Paras15 declared a municipal
ordinance that refused to give any permit for night clubs and any
license for professional dancers unconstitutional as going beyond
mere regulation into prohibition of a profession or calling which,
properly regulated, can be legitimate. Correspondingly, even
conceding that the Ermita-Malate area teems with houses of ill-repute
and establishments of the like which the City Council may lawfully
prohibit, it is baseless and insupportable to bring within that
classification, sauna parlors, massage parlors, karaoke bars, night
clubs, day clubs, supper clubs, discotheques, cabarets, dance halls,
motels and inns. The enumerated establishments are lawful pursuits
which are not per se offensive to the moral welfare of the
community.16
It is well to recall the rulings of the Court in Kwong Sing v. City
of Manila17 that:
The word regulate, as used in subsection (l), section 2444 of
the Administrative Code, means and includes the power to
control, to govern, and to restrain; but regulate should not be
construed as synonymous with suppress or prohibit.
Consequently, under the power to regulate laundries, the
municipal authorities could make proper police regulations as to
the mode in which the employment or business shall be
exercised.18
P.D. 856 is a law that prescribes sanitation requirements for
food establishments and refuse collections and disposal system
of cities and municipalities, and there was no provisions about
the sanitation requirements of a backyard poultry-raising house
nor it has stated the required specific distance of a poultry15 G.R. Nos. 42571-72, July 25, 1983
16 City of Manila vs. Judge Laguio, supra
17 G.R. No. L-15972, October 11, 1920
18 Id at 9.
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raising house from the residential areas, which is dissimilar to

the assailed Ordinance directly and completely prohibit the
construction and/or reconstruction, operation and maintenance
of all backyard poultry-raising houses in residential areas.

The respondent pointed out in their Barangay Resolution No.

15 that Mr. Fabruas backyard poultry-raising business is within the
100-meter distance near human habitation, which they claimed to be
in violation of section 8.6.7c of P.D. 856. On the contrary, section 8 of
P.D. 856 only contains the following:
Section 8. Miscellaneous Provisions
(a) International treaties, agreements and conventions. The
Republic of the Philippines recognizes international treaties,
agreements and conventions on public health. Their provisions
may be considered parts of this Code provided they do not
contravene the Constitution, existing laws or any provision of
this Code.
(b) Rights and proceedings any proceeding which has
commenced or any right which has accrued upon the effectivity
of this Code shall not be affected by any of its provisions.
However, matters of procedure and rights arising after the date
of effectivity of this Code shall conform to the provisions hereof.
(c) Delegation of power and assignment of duty. Whenever a
power is granted or a duty is assigned to any public health
officer in this Code, the power may be exercised by a deputy or
agent of the official pursuant to law, unless it is expressly
provided otherwise in this Code.
(d) Language required any notice, report, statement or record
required or authorized by this Code, shall be written in English
or Pilipino.
(e) Mailing of notices. Unless otherwise expressly provided, any
notice required to be sent to any person by any provision of this
Code, shall be sent through the postal service. The affidavit of
the official or employee who mailed the notice is prima facie
evidence that the notice was sent as prescribed herein.

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(f) Condemnation and seizure of property. When any property is

officially condemned or seized by government authorities in the
interest of public health, the owner thereof shall not be entitled
to compensation.
(g) Command responsibility. When a duty is expressly vested in
a health officer as provided in this Code, it shall be understood
that it shall likewise be the concern of the superiors of the
health office under the principle of command responsibility.
Barangay Ordinance No. 37 is void and inexistent
due to the absence of date of approval of the ordinance
and there was no signatures affixed
by the Punong Barangay and the rest of
the Sangguniang Barangay members,
excluding their Barangay Secretary.11

It is observed that Barangay Ordinance No. 37 has no date of

approval and no signatures affixed by the Sangguniang Barangay
apart from their Barangay Secretary, Nanette L. Yurong. Section 54c
of R.A. 7160 or the Local Government Code of 1991 provides that:
Sec. 54. Approval of Ordinances. (c) Ordinances enacted by the sangguniang barangay shall,
upon approval by the majority of all its members, be signed
by the punong barangay. . (Emphases ours.)
Thus, in order for an ordinance to be effective, it should be
approved by the majority of all the Sangguniang Barangay members
and be duly signed by the Punong Barangay. In this case, the
barangay ordinance is technically void and inexistent since it has no
date of approval, hence not effective. As a result, the general public is
not bound by the provisions of the barangay ordinance since they are
not well-informed of such. Article 2 of the New Civil Code of the
Philippines provides that:
Art.2. Laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, or in a
newspaper of general circulation, unless it is otherwise
provided. This Code shall take effect one year after such
publication. (As amended by Executive Order No. 200 dated 18
June 1987)
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A barangay ordinance takes effect after ten (10) days, unless

otherwise stated, when the secretary to the sanggunian concerned
shall cause the posting of an ordinance in the bulletin board at the
entrance of the barangay hall in at least two (2) conspicuous places
in the LGU concerned not later than five (5) days after approval
thereof. The text of the ordinance shall be disseminated and posted
in Filipino or English and in the language or dialect understood by the
majority of the people in the LGU concerned, and the secretary to
the sanggunian shall record such fact in a book kept for the purpose,
stating the dates of approval and posting.

However, regardless if the assailed ordinance was approved

and signed by the Sangguniang Barangay, the petitioner still asserts
that Barangay Ordinance Np. 37 is still invalid and unconstitutional
due to the first two arguments stated above.

CONCLUSION

Giving the foregoing, it is most respectfully submitted that the

Sangguniang Barangay of Tuod, Manticao committed grave abuse of
discretion amounting to lack or excess of jurisdiction when they
enacted the assailed ordinance. Hence, the said ordinance must be
declared invalid and unconstitutional.

PRAYER

WHEREFORE, premises considered, it is most respectfully

prayed of the Honorable Regional Trial Court that the instant petition
be given due course. After notice and hearing, it is most respectfully
prayed of the Honorable Regional Trial Court that a Declaratory Relief
be issued and declaring the assailed Ordinance invalid and
unconstitutional.

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Respectfully submitted.

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