G.R. No. 184478 Case Digest

G.R. No. 184478, March 21, 2012

James Perez

vs Spouses Fortunito Madrona and Yolanda Pante

Ponente: Villarama

Facts:

Spouses are registered owners of a residential property in Green Heights Subdivision, Marikina City. In 1989, spouses built their house thereon and enclosed it with concrete fence and steel gate.

1999, James Perez as Chief Demolition Officer sent a letter to the spouses ordering them to remove the fence encroaching the public drainage. As response, Madrona sent a response letter to Perez condemning the order of demolition with the following contention: (1) contained an accusation libellous in nature as it is condemning him and his property without due process; (2) has no basis and authority since there is no court order authorizing him to demolish their structure; (3) cited legal bases which do not expressly give petitioner authority to demolish; and (4) contained a false accusation since their fence did not in fact extend to the sidewalk.

Respondents likewise sought the issuance of TRO to enjoin petitioner and all persons acting under him doing any act of demolition on the property. Petitioner filed a motion to lift the order of default, but the RTC denied the motion. Perez filed a petition for certiorari before CA assailing the default order, CA dismissed the petition for certiorari for lack of merit.

The RTC held that respondents, being lawful owners of the subject property, are entitled to the peaceful and open possession of every inch of their property and petitioner’s threat to demolish the concrete fence around their property is tantamount to a violation of their rights as property owners who are entitled to protection under the Constitution and laws.  The RTC also ruled that there is no showing that respondents’ fence is a nuisance per se and presents an immediate danger to the community’s welfare, nor is there basis for petitioner’s claim that the fence has encroached on the sidewalk as to justify its summary demolition.

Issues: (1) Did the trial court err in reinstating the complaint of respondents? (2) Are the requisites for the issuance of a writ of injunction present? and (3) Is petitioner liable to pay attorney’s fees and costs of suit?

(1) For injunction to issue, two requisites must concur: first, there must be a right to be protected and second, the acts against which the injunction is to be directed are violative of said right. Here, the two requisites are clearly present: there is a right to be protected, that is, respondents’ right over their concrete fence which cannot be removed without due process; and the act, the summary demolition of the concrete fence, against which the injunction is directed, would violate said right.

(2) Respondents’ fence is not a nuisance per se.  By its nature, it is not injurious to the health or comfort of the community.  It was built primarily to secure the property of respondents and prevent intruders from entering it. And as correctly pointed out by respondents, the sidewalk still exists.  If petitioner believes that respondents’ fence indeed encroaches on the sidewalk, it may be so proven in a hearing conducted for that purpose.  Not being a nuisance per se, but at most a nuisance per accidens, its summary abatement without judicial intervention is unwarranted.

(3) Petitioner argues that he was just performing his duties and as public officer, he is entitled to the presumption of regularity in the performance of his official functions.  Unless there is clear proof that he acted beyond his authority or in evident malice or bad faith, he contends that he cannot be held liable for attorney’s fees and costs of suit. As respondents were forced to file a case against petitioner to enjoin the impending demolition of their property, the award of attorney’s fees and costs of suit is justified.  Clearly, respondents wanted to settle the problem on their alleged encroachment without resorting to court processes when they replied by letter after receiving petitioner’s first notice.