THIRD DIVISION 

[G.R. No. 156684, April 06 : 2011] 

SPOUSES ANTONIO AND FE YUSAY, PETITIONERS, VS. COURT OF APPEALS,

CITY MAYOR AND CITY COUNCIL OF MANDALUYONG CITY, RESPONDENTS.

R E S O L U T I O N 

BERSAMIN, J.:

The petitioners appeal the adverse decision promulgated on October 18, 2002[1] and
resolution promulgated on January 17, 2003,[2] whereby the Court of Appeals (CA)
reversed and set aside the order issued in their favor on February 19, 2002 by the
Regional Trial Court, Branch 214, in Mandaluyong City (RTC).[3] Thereby, the CA upheld
Resolution No. 552, Series of 1997, adopted by the City of Mandaluyong (City)
authorizing its then City Mayor to take the necessary legal steps for the expropriation of
the parcel of land registered in the names of the petitioners.

We affirm the CA.

Antecedents

The petitioners owned a parcel of land with an area of 1,044 square meters situated
between Nueve de Febrero Street and Fernandez Street in Barangay Mauway,
Mandaluyong City.  Half of their land they used as their residence, and the rest they
rented out to nine other families.  Allegedly, the land was their only property and only
source of income.

On October 2, 1997, the Sangguniang Panglungsod of Mandaluyong City adopted

Resolution No. 552, Series of 1997, to authorize then City Mayor Benjamin S. Abalos,
Sr. to take the necessary legal steps for the expropriation of the land of the petitioners
for the purpose of developing it for low cost housing for the less privileged but
deserving city inhabitants.  The resolution reads as follows:

RESOLUTION NO. 552, S-1997[4]

RESOLUTION AUTHORIZING HON. BENJAMIN S. ABALOS TO TAKE THE NECESSARY

LEGAL STEPS FOR THE EXPROPRIATION OF A PARCEL OF LAND SITUATED ALONG DR.

JOSE FERNANDEZ STREET, BARANGAY MAUWAY, CITY OF MANDALUYONG, OWNED BY

MR. ANTONIO YUSAY

WHEREAS, there is a parcel of land situated along Dr. Jose Fernandez Street, Barangay
Mauway, City of Mandaluyong, owned and registered in the name of MR. ANTONIO
YUSAY;

WHEREAS, this piece of land have been occupied for about ten (10) years by many
financially hard-up families which the City Government of Mandaluyong desires, among
other things, to provide modest and decent dwelling;
WHEREAS, the said families have already negotiated to acquire this land but was
refused by the above-named owner in total disregard to the City Government's effort of
providing land for the landless;

WHEREAS, the expropriation of said land would certainly benefit public interest, let
alone, a step towards the implementation of social justice and urban land reform in this
City;

WHEREAS, under the present situation, the City Council deems it necessary to authorize
Hon. Mayor BENJAMIN S. ABALOS to institute expropriation proceedings to achieve the
noble purpose of the City Government of Mandaluyong.

NOW, THEREFORE, upon motion duly seconded, the City Council of Mandaluyong, in
session assembled, RESOLVED, as it hereby RESOLVES, to authorize, as it is hereby
authorizing, Hon. Mayor BENJAMIN S. ABALOS, to institute expropriation proceedings
against the above-named registered owner of that parcel of land situated along Dr. Jose
Fernandez Street, Barangay Mauway, City of Mandaluyong, (f)or the purpose of
developing it to a low-cost housing project for the less privileged but deserving
constituents of this City.

ADOPTED on this 2nd day of October 1997 at the City of Mandaluyong.

Sgd. Adventor R. Delos Santos

Acting Sanggunian Secretary

Attested:                                                                                         Approved:

Sgd. Roberto J. Francisco                                                  Sgd. Benjamin S. Abalos

City Councilor & Acting                                                     City Mayor
Presiding Officer

Notwithstanding that the enactment of Resolution No. 552 was but the initial step in the
City's exercise of its power of eminent domain granted under Section 19 of the Local
Government Code of 1991, the petitioners became alarmed, and filed a petition
for certiorari and prohibition in the RTC, praying for the annulment of Resolution No.
552 due to its being unconstitutional, confiscatory, improper, and without force and
effect.

The City countered that Resolution No. 552 was a mere authorization given to the City
Mayor to initiate the legal steps towards expropriation, which included making a definite
offer to purchase the property of the petitioners; hence, the suit of the petitioners was
premature.

On January 31, 2001, the RTC ruled in favor of the City and dismissed the petition for
lack of merit, opining that certiorari did not lie against a legislative act of the City
Government, because the special civil action of certiorari was only available to assail
judicial or quasi-judicial acts done without or in excess of jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction; that the special civil
action of prohibition did not also lie under the circumstances considering that the act of
passing the resolution was not a judicial, or quasi-judicial, or ministerial act; and that
notwithstanding the issuance of Resolution No. 552, the City had yet to commit acts of
encroachment, excess, or usurpation, or had yet to act without or in excess of
jurisdiction or with grave abuse of discretion amounting lack or in excess of jurisdiction.

However, on February 19, 2002, the RTC, acting upon the petitioners' motion for
reconsideration, set aside its decision and declared that Resolution No. 552 was null
and void.  The RTC held that the petition was not premature because the passage of
Resolution No. 552 would already pave the way for the City to deprive the petitioners
and their heirs of their only property; that there was no due process in the passage of
Resolution No. 552 because the petitioners had not been invited to the subsequent
hearings on the resolution to enable them to ventilate their opposition; and that the
purpose for the expropriation was not for public use and the expropriation would not
benefit the greater number of inhabitants.

Aggrieved, the City appealed to the CA.

In its decision promulgated on October 18, 2002, the CA concluded that the reversal of
the January 31, 2001 decision by the RTC was not justified because Resolution No. 552
deserved to be accorded the benefit of the presumption of regularity and validity absent
any sufficient showing to the contrary; that notice to the petitioners (Spouses Yusay) of
the succeeding hearings conducted by the City was not a part of due process, for it was
enough that their views had been consulted and that they had been given the full
opportunity to voice their protest; that to rule otherwise would be to give every
affected resident effective veto powers in law-making by a local government unit; and
that a public hearing, although necessary at times, was not indispensable and merely
aided in law-making.

The CA disposed as follows:

WHEREFORE, premises considered, the questioned order of the Regional Trial Court,
Branch 214, Mandaluyong City dated February 19, 2002 in SCA Case No. 15-MD, which
declared Resolution No. 552, Series of 1997 of the City of Mandaluyong null and void, is
hereby REVERSED and SET ASIDE.  No costs.

SO ORDERED.[5]

The petitioners moved for reconsideration, but the CA denied their motion. Thus, they
appeal to the Court, posing the following issues, namely:

1. Can the validity of  Resolution No. 552 be assailed even before its
implementation?
2. Must a citizen await the takeover and possession of his property by the local
government before he can go to court to nullify an unjust expropriation?

Before resolving these issues, however, the Court considers it necessary to first
determine whether or not the action for certiorari and prohibition commenced by the
petitioners in the RTC was a proper recourse of the petitioners.
 Ruling

We deny the petition for review, and find that certiorari and prohibition were not
available to the petitioners under the circumstances. Thus, we sustain, albeit upon
different grounds, the result announced by the CA, and declare that the RTC gravely
erred in giving due course to the petition for certiorari and prohibition.

1.
Certiorari does not lie to assail the issuance of 
a resolution by the Sanggunian Panglungsod

The special civil action for certiorari is governed by Rule 65 of the 1997 Rules of Civil

Procedure, whose Section 1 provides:

Section 1. Petition for certiorari. - When any tribunal, board or officer exercising judicial
or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or
with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is
no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified petition in the proper court, alleging the
facts with certainty and praying that judgment be rendered annulling or modifying the
proceedings of such tribunal, board or officer, and granting such incidental reliefs as law
and justice may require.

xxx

For certiorari to prosper, therefore, the petitioner must allege and establish the
concurrence of the following requisites, namely:

(a) The writ is directed against a tribunal, board, or officer exercising judicial or quasi-
judicial functions;

(b) Such tribunal, board, or officer has acted without or in excess of jurisdiction, or with
grave abuse of discretion amounting to lack or excess of jurisdiction; and

(c) There is no appeal or any plain, speedy, and adequate remedy in the ordinary
course of law.[6]

It is further emphasized that a petition for certiorari seeks solely to correct defects in

jurisdiction,[7] and does not correct just any error or mistake committed by a court,
board, or officer exercising judicial or quasi-judicial functions unless such court, board,
or officer thereby acts without jurisdiction or in excess of jurisdiction or with such grave
abuse of discretion amounting to lack of jurisdiction.[8]

The first requisite is that the respondent tribunal, board, or officer must be exercising
judicial or quasi-judicial functions. Judicial function, according to Bouvier,[9] is the
exercise of the judicial faculty or office; it also means the capacity to act in a specific
way which appertains to the judicial power, as one of the powers of government. "The
term," Bouvier continues,[10] "is used to describe generally those modes of action which
appertain to the judiciary as a department of organized government, and through and
by means of which it accomplishes its purpose and exercises its peculiar powers."
Based on the foregoing, certiorari did not lie against the Sangguniang Panglungsod,
which was not a part of the Judiciary settling an actual controversy involving legally
demandable and enforceable rights when it adopted Resolution No. 552, but a
legislative and policy-making body declaring its sentiment or opinion.

Nor did the Sangguniang Panglungsod abuse its discretion in adopting Resolution No.

552. To demonstrate the absence of abuse of discretion, it is well to differentiate
between a resolution and an ordinance. The first is upon a specific matter of a
temporary nature while the latter is a law that is permanent in character.[11] No rights
can be conferred by and be inferred from a resolution, which is nothing but an
embodiment of what the lawmaking body has to say in the light of attendant
circumstances. In simply expressing its sentiment or opinion through the resolution,
therefore, the Sangguniang Panglungsod in no way abused its discretion, least of all
gravely, for its expression of sentiment or opinion was a constitutionally protected right.

Moreover, Republic Act No. 7160 (The Local Government Code) required the City to
pass an ordinance, not adopt a resolution, for the purpose of initiating an expropriation
proceeding. In this regard, Section 19 of The Local Government Code clearly
provides, viz:

Section 19. Eminent Domain. - A local government unit may, through its chief executive
and acting pursuant to an ordinance, exercise the power of eminent domain for
public use, or purpose, or welfare for the benefit of the poor and the landless, upon
payment of just compensation, pursuant to the provisions of the Constitution and
pertinent laws:  Provided, however, That the power of eminent domain may not be
exercised unless a valid and definite offer has been previously made to the owner, and
such offer was not accepted:  Provided, further, That the local government unit may
immediately take possession of the property upon the filing of the expropriation
proceedings and upon making a deposit with the proper court of at least fifteen percent
(15%) of the fair market value of the property based on the current tax declaration of
the property to be expropriated: Provided, finally, That, the amount to be paid for the
expropriated property shall be determined by the proper court, based on the fair
market value at the time of the taking of the property.

A resolution like Resolution No. 552 that merely expresses the sentiment of
the Sangguniang Panglungsod is not sufficient for the purpose of initiating an
expropriation proceeding. Indeed, in Municipality of Parañaque v. V.M. Realty
Corporation,[12] a case in which the Municipality of Parañaque based its complaint for
expropriation on a resolution, not an ordinance, the Court ruled so:

The power of eminent domain is lodged in the legislative branch of government, which
may delegate the exercise thereof to LGUs, other public entities and public utilities. An
LGU may therefore exercise the power to expropriate private property only when
authorized by Congress and subject to the latter's control and restraints, imposed
"through the law conferring the power or in other legislations." In this case, Section 19
of RA 7160, which delegates to LGUs the power of eminent domain, also lays down the
parameters for its exercise.  It provides as follows:

"Section 19. Eminent Domain. A local government unit may, through its chief executive
and acting pursuant to an ordinance, exercise the power of eminent domain for
public use, or purpose, or welfare for the benefit of the poor and the landless, upon
payment of just compensation, pursuant to the provisions of the Constitution and
pertinent laws:  Provided, however, That the power of eminent domain may not be
exercised unless a valid and definite offer has been previously made to the owner, and
such offer was not accepted:  Provided, further, That the local government unit may
immediately take possession of the property upon the filing of the expropriation
proceedings and upon making a deposit with the proper court of at least fifteen percent
(15%) of the fair market value of the property based on the current tax declaration of
the property to be expropriated:  Provided, finally, That, the amount to be paid for the
expropriated property shall be determined by the proper court, based on the fair
market value at the time of the taking of the property."  (Emphasis supplied)

Thus, the following essential requisites must concur before an LGU can exercise the
power of eminent domain:

1.  An ordinance is enacted by the local legislative councilauthorizing the local

chief executive, in behalf of the LGU, to exercise the power of eminent domain or
pursue expropriation proceedings over a particular private property.

2.  The power of eminent domain is exercised for public use, purpose or welfare, or for
the benefit of the poor and the landless.

3.  There is payment of just compensation, as required under Section 9 Article III of the
Constitution and other pertinent laws.

4.  A valid and definite offer has been previously made to the owner of the property
sought to be expropriated, but said offer was not accepted.

In the case at bar, the local chief executive sought to exercise the power of eminent
domain pursuant to a resolution of the municipal council.  Thus, there was no
compliance with the first requisite that the mayor be authorized through an ordinance. 
Petitioner cites Camarines Sur vs. Court of Appeals to show that a resolution may
suffice to support the exercise of eminent domain by an LGU. This case, however, is not
in point because the applicable law at that time was BP 337, the previous Local
Government Code, which had provided that a mere resolution would enable an LGU to
exercise eminent domain. In contrast, RA 7160, the present Local Government
Code which was already in force when the Complaint for expropriation was
filed, explicitly required an ordinance for this purpose.

We are not convinced by petitioner's insistence that the terms "resolution" and
"ordinance" are synonymous.  A municipal ordinance is different from a
resolution.  An ordinance is a law, but a resolution is merely a declaration of
the sentiment or opinion of a lawmaking body on a specific matter. An
ordinance possesses a general and permanent character, but a resolution is
temporary in nature. Additionally, the two are enacted differently -- a third
reading is necessary for an ordinance, but not for a resolution, unless decided
otherwise by a majority of all the Sanggunian members.

If Congress intended to allow LGUs to exercise eminent domain through a mere

resolution, it would have simply adopted the language of the previous Local
Government Code. But Congress did not. In a clear divergence from the previous Local
Government Code, Section 19 of RA 7160 categorically requires that the local chief
executive act pursuant to an ordinance.  Indeed, "[l]egislative intent is determined
principally from the language of a statute. Where the language of a statute is clear and
unambiguous, the law is applied according to its express terms, and interpretation
would be resorted to only where a literal interpretation would be either impossible or
absurd or would lead to an injustice." In the instant case, there is no reason to depart
from this rule, since the law requiring an ordinance is not at all impossible, absurd, or
unjust.

Moreover, the power of eminent domain necessarily involves a derogation of a

fundamental or private right of the people. Accordingly, the manifest change in the
legislative language - from "resolution" under BP 337 to "ordinance" under RA 7160 -
demands a strict construction. "No species of property is held by individuals with
greater tenacity, and is guarded by the Constitution and laws more sedulously, than the
right to the freehold of inhabitants. When the legislature interferes with that right and,
for greater public purposes, appropriates the land of an individual without his consent,
the plain meaning of the law should not be enlarged by doubtful interpretation."

xxx

In its Brief filed before Respondent Court, petitioner argues that its Sangguniang Bayan
passed an ordinance on October 11, 1994 which reiterated its Resolution No. 93-35,
Series of 1993, and ratified all the acts of its mayor regarding the subject expropriation.

This argument is bereft of merit.  In the first place, petitioner merely alleged the
existence of such an ordinance, but it did not present any certified true copy thereof. 
In the second place, petitioner did not raise this point before this Court.  In fact, it was
mentioned by private respondent, and only in passing. In any event, this allegation
does not cure the inherent defect of petitioner's Complaint for expropriation filed on
September 23, 1993.  It is hornbook doctrine that:

" x x x in a motion to dismiss based on the ground that the complaint fails to state a
cause of action, the question submitted before the court for determination is the
sufficiency of the allegations in the complaint itself.  Whether those allegations are true
or not is beside the point, for their truth is hypothetically admitted by the motion.  The
issue rather is: admitting them to be true, may the court render a valid judgment in
accordance with the prayer of the complaint?"

The fact that there is no cause of action is evident from the face of the
Complaint for expropriation which was based on a mere resolution. The
absence of an ordinance authorizing the same is equivalent to lack of cause of
action. Consequently, the Court of Appeals committed no reversible error in affirming
the trial court's Decision which dismissed the expropriation suit.[13](Emphasis supplied)

In view of the absence of the proper expropriation ordinance authorizing and providing
for the expropriation, the petition for certiorari filed in the RTC was dismissible for lack
of cause of action.

2.
Prohibition does not lie against expropriation
The special civil action for prohibition is governed also by Section 2 of Rule 65 of the
1997 Rules of Civil Procedure, which states:

Section 2. Petition for prohibition. -- When the proceedings of any tribunal, corporation,
board, officer or person, whether exercising judicial, quasi-judicial or ministerial
functions, are without or in excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there is no appeal or any
other plain, speedy, and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered commanding the respondent to desist
from further proceedings in the action or matter specified therein, or otherwise granting
such incidental reliefs as law and justice may require.

xxx

The function of prohibition is to prevent the unlawful and oppressive exercise of legal
authority and to provide for a fair and orderly administration of justice.[14]The writ of
prohibition is directed against proceedings that are done without or in excess of
jurisdiction, or with grave abuse of discretion, there being no appeal or other plain,
speedy and adequate remedy in the ordinary course of law.[15] For grave abuse of
discretion to be a ground for prohibition, the petitioner must first demonstrate that the
tribunal, corporation, board, officer, or person, whether exercising judicial, quasi-
judicial or ministerial functions, has exercised its or his power in an arbitrary or
despotic manner, by reason of passion or personal hostility, which must be so patent
and gross as would amount to an evasion, or to a virtual refusal to perform the duty
enjoined or to act in contemplation of law.[16] On the other hand, the term excess of
jurisdiction signifies that the court, board, or officer has jurisdiction over a case but has
transcended such jurisdiction or acted without any authority.[17]

The petitioner must further allege in the petition and establish facts to show that any
other existing remedy is not speedy or adequate.[18] A remedy is plain, speedy and
adequate if it will promptly relieve the petitioner from the injurious effects of that
judgment and the acts of the tribunal or inferior court.[19]

The rule and relevant jurisprudence indicate that prohibition was not available to the
petitioners as a remedy against the adoption of Resolution No. 552, for
the Sangguniang Panglungsod, by such adoption, was not exercising judicial, quasi-
judicial or ministerial functions, but only expressing its collective sentiment or opinion.

Verily, there can be no prohibition against a procedure whereby the immediate

possession of the land under expropriation proceedings may be taken, provided always
that due provision is made to secure the prompt adjudication and payment of just
compensation to the owner. [20] This bar against prohibition comes from the nature of
the power of eminent domain as necessitating the taking of private land intended for
public use,[21] and the interest of the affected landowner is thus made subordinate to
the power of the State.  Once the State decides to exercise its power of eminent
domain, the power of judicial review becomes limited in scope, and the courts will be
left to determine the appropriate amount of just compensation to be paid to the
affected landowners. Only when the landowners are not given their just compensation
for the taking of their property or when there has been no agreement on the amount of
just compensation may the remedy of prohibition become available.

Here, however, the remedy of prohibition was not called for, considering that only a
resolution expressing the desire of the Sangguniang Panglungsod to expropriate the
petitioners' property was issued. As of then, it was premature for the petitioners to
mount any judicial challenge, for the

power of eminent domain could be exercised by the City only through the filing of a
verified complaint in the proper court.[22] Before the City as the expropriating authority
filed such verified complaint, no expropriation proceeding could be said to exist. Until
then, the petitioners as the owners could not also be deprived of their property under
the power of eminent domain.[23]

WHEREFORE, we affirm the decision promulgated on October 18, 2002 in CA-G.R. SP

No. 70618.

Costs to be paid by the petitioners.

SO ORDERED.

Carpio Morales, (Chairperson), Brion,  Villarama, Jr.,  and  Sereno, JJ., concur