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CASE TITLE: Gancayco vs City Government of Quezon City

GR No.: G.R. No. 177807

Date: October 11, 2011
SCRA Citation: 658 SCRA 853
TOPIC: XI. Nuisance

The consolidated petitions of Retired Justice Emilio Gancayco, City Government of
Quezon City and the Metro Manila Development Authority stemmed from a local ordinance
pertaining to Construction of Arcades, and the clearing of Public Obstructions. Gaycanco owns a
property, of which he was able to obtain a building permit for a two-storey commercial
building, which was situated along EDSA, in an area which was designated as part of a
Business/Commercial Zone by the Quezon City Council. The Quezon City Council also issued
Ordinance No. 2904, which orders the construction of Arcades for Commercial Buildings.

The ordinance was amended to not require the properties located at the Quezon City -
San Juan boundary, and commercial buildings from Balete - Seattle Street to construct the
arcades, moreover, Gancayco had been successful in his petition to have his property, already
covered by the amended ordinance, exempted from the ordinance. MMDA on April 28, 2003,
sent a notice to Gancayco, under Ordinance no. 2904, part of his property had to be
demolished, if he did not clear that part within 15 days, which Gancayco did not comply with,
and so the MMDA had to demolish the party wall, or “wing walls.”

Gancayco then filed a temporary restraining order and/or writ of preliminary injunction
before the RTC of Quezon City, seeking to prohibit the demolition of his property, without due
process and just compensation, claiming that Ordinance no. 2904 was discriminatory and
selective. He sought the declaration of nullity of the ordinance and payment for damages.
MMDA contended that Gancayco cannot seek nullification of an ordinance that he already
violated, and that the ordinance had the presumption of constitutionality, and it was approved
by the Quezon City Council, taking to note that the Mayor signed the ordinance.

The RTC, however, declared that the Ordinance was unconstitutional, invalid and void
ab initio. MMDA appealed to the Court of Appeals, and the CA partly granted the appeal, with
the contention that the ordinance was to be modified; it was constitutional because the
intention of the ordinance was to uplift the standard of living, and business in the commercial
area, as well as to protect the welfare of the general public passing by the area, however the
injunction against the enforcement and implementation of the ordinance is lifted.

With that decision, the MMDA and Gancayco filed Motions for Reconsideration, which
the CA denied, as both parties have no new issues raised. Therefore they petitioned to the

Whether or not the wing wall of Gancayco’s property be constituted as a public

Article 694 of the Civil Code defines nuisance as any act, omission, establishment,
business, condition or property, or anything else that (1) injures or endangers the health or
safety of others; (2) annoys or offends the senses; (3) shocks, defies or disregards decency or
morality; (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. A nuisance may be per se or
per accidens. A nuisance per se is that which affects the immediate safety of persons and
property and may summarily be abated under the undefined law of necessity.
Neither does the MMDA have the power to declare a thing a nuisance. Only courts of
law have the power to determine whether a thing is a nuisance. In AC Enterprises v. Frabelle
Properties Corp., 506 SCRA 625 (2006), we held: We agree with petitioner’s contention that,
under Section 447(a)(3)(i) of R.A. No. 7160, otherwise known as the Local Government Code,
the Sangguniang Panglungsod is empowered to enact ordinances declaring, preventing or
abating noise and other forms of nuisance. It bears stressing, however, that the Sangguniang
Bayan cannot declare a particular thing as a nuisance per se and order its condemnation. It
does not have the power to find, as a fact, that a particular thing is a nuisance when such thing
is not a nuisance per se; nor can it authorize the extrajudicial condemnation and destruction of
that as a nuisance which in its nature, situation or use is not such. Those things must be
determined and resolved in the ordinary courts of law. If a thing be in fact, a nuisance due to
the manner of its operation, that question cannot be determined by a mere resolution of the
Sangguniang Bayan. (Emphasis supplied.)