FIRST
DIVISION
HON.
ALFREDO S. LIM,in his capacity
as Mayor of Manilaand THE CITY OF MANILA,
Petitioners,
G. R. No. 115044
September 1, 1994
-versus-
HON.
FELIPE G. PACQUINGas Judge,
Regional Trial Court of Manilaand
ASSOCIATED DEVELOPMENT CORPORATION,
Respondents.
D
E C I S I O N
QUIASON, J.:
This is a
Petition for
Certiorari under
Rule
65 of the Revised Rules of Court to set aside the Orders dated March
28,
1994, April 11, 1994 and April 20, 1994 of Judge Felipe G. Pacquing,
presiding
judge of the Regional Trial Court, Branch 40, Manila, issued in Civil
Case
No. 88-45660.
The Order dated
March 28, 1994, granted the motion
of private respondent to compel petitioner Mayor Alfredo S. Lim to
issue
a permit or license in favor of private respondent pursuant to
Ordinance
No. 7065 upon compliance by private respondent with all the
requirements
set thereunder.cralaw:red
The Order dated
April 11, 1994, denied the motion
for reconsideration filed by petitioners of the Order dated May 28,
1994.
The Order dated April 20, 1994, reiterated the Order of March 28, 1994,
directing Mayor Lim to immediately issue to private respondent the
necessary
permit or license pursuant to Ordinance No. 7065.
I.chanrobles virtual law library
On September 7,
1971, the Municipal Board of Manila
passed Ordinance No. 7065 pursuant to Section 18[jj] of the Revised
Charter
of Manila, granting private respondent a franchise to operate a
jai-alai
in the city. The ordinance is reproduced as follows:
AN ORDINANCE AUTHORIZING THE MAYOR TO
ALLOW
AND PERMIT THE ASSOCIATED DEVELOPMENT CORPORATION TO ESTABLISH,
MAINTAIN
AND OPERATE A JAI-ALAI IN THE CITY OF MANILA, UNDER CERTAIN TERMS AND
CONDITIONS
AND FOR OTHER PURPOSES.chanrobles virtual law library
Be it ordained by the Municipal Board of
the
City of Manila, that:
Sec. 1. The Mayor is authorized, as he is
hereby
authorized to allow and permit the Associated Development Corporation
to
establish, maintain and operate a jai-alai in the City of Manila, under
the following terms and conditions and such other terms and conditions
as he (the Mayor) may prescribe for good reasons of general interest:
a. That the construction, establishment
and
maintenance
of the jai-alai shall be at a place permissible under existing zoning
ordinance
of Manila;
b. That the games to be played daily
shall
commence
not earlier than 5:00 in the afternoon;
c. That the City of Manila will
receive a
share
of 2 1/2% on the annual gross receipts on all wagers or bets, 1/2% of
which
will accrue to the Games and Amusement Board as now provided by law;
d. That the corporation will, in
addition,
pay
to the city an annual license fee of P3,000.00 and a daily permit fee
of
P200.00;
e. That the corporation will, to
insure
its faithful
compliance of all the terms and conditions under this ordinance, put up
a performance bond from a surety acceptable to the city, in the amount
of at least P30,000.00.
Sec. 2. The Mayor and the City Treasurer
or
their
duly authorized representatives are hereby empowered to inspect at all
times during regular business hours the books, records and accounts of
the establishment, as well as to prescribe the manner in which the
books
and financial statements of the entrepreneur shall be kept.
Sec. 3. This ordinance shall take effect
upon
its approval.
Enacted originally by the Municipal Board
on
September 7, 1971; vetoed by the Mayor on September 27, 1971; modified
and amended by the Municipal Board at its regular session today,
October
12, 1971.
Approved by His Honor, the Mayor, on 13
November
1971.
Thereafter,
private respondent took steps preparatory
to the establishment of the jai-alai at Ermita, Manila. Private
respondent
retained the services of an architectural firm from Hongkong to design
the fronton and contracted with a local firm for the construction of
the
building.
On August 20,
1975, after the declaration of Martial
Law, President Ferdinand E. Marcos promulgated Presidential Decree No.
771 revoking the powers of the local government to grant permits or
licenses
and canceling all existing franchises to operate jai-alais.cralaw:red
Less than two
months after P. D. No. 771 was issued,
the Philippine Jai-Alai and Amusement Corporation, an enterprise
controlled
by Alfredo Romualdez, a brother-in-law of President Marcos, was granted
a franchise to operate a jai-alai within the Greater Manila Area under
P. D. No. 810. However, after the EDSA Resolution, President Corazon C.
Aquino issued Executive Order No. 169, repealing P. D. No. 810.cralaw:red
On May 5, 1988,
private respondent sought the
resumption of its business operations under its franchise issued under
Ordinance No. 7065. Mayor Gemiliano C. Lopez denied private
respondent's
request, as well as its motion for reconsideration.cralaw:red
On August 2,
1988, private respondent filed a
petition for mandamus and specific performance with the Regional Trial
Court, Branch 40, Manila, docketed as Civil Case No. 88-45660.cralaw:red
In a decision
dated September 9, 1989, Judge Augusto
E. Villarin of Branch 40 held that Ordinance No. 7065 created a binding
contract between the City of Manila and private respondent and that the
City Mayor had no discretion but "to grant the necessary permit or
license
allowing it to operate and maintain a jai-alai in the City of Manila
pursuant
to Ordinance No. 7065."
The trial court
noted:
A careful reading, however, of Ordinance
No.
7065 will readily show that the discretion, if any, allowed respondent
Mayor, under the Ordinance, will be exercisable only after the permit,
which he is mandated to issue, has been issued and the jai-alai fronton
is already operational. The Ordinance stipulates that the Mayor is
authorized
"to allow and permit petitioner to establish, maintain and operate a
jai-alai
in the City of Manila ," under the five conditions enumerated in
subparagraphs
"a" to "e" of Section 1 of the Ordinance. But a simple reading of these
"terms and conditions" patently shows that subparagraphs "b" to "e" are
clearly conditions that will only come into play after the jai-alai
fronton
has been put up or established; while the condition under sub-paragraph
"a" appears to have been complied with satisfactorily by the
petitioner,
since no objection at all has been made by respondents to the proposed
site for the jai-alai fronton, that is, the 25,000 sq. m. land area
behind
the present Harrison Plaza Complex located at Ermita, Manila.
It is therefore, quite evident to this
Court
that no discretion is left to the respondent Mayor to allow or not
petitioner
"to establish, maintain and operate a jai-alai in the City of Manila."
The Court is satisfied that the requirements of Sec. 3, Rule 65, have
been
met.
Moreover, it is well-settled that the
grant of
a franchise, when accepted and acted upon by the grantee, creates a
contract.
And, going by contract law, under the undisputed circumstances in this
case, respondent Mayor, in behalf of the City, is obliged to comply
with
what is required of him under the Ordinance. At the very least, the
enactment
and approval of Ordinance No. 7065 on November 13, 1971, created a
bilateral
contract between petitioner and respondents. Petitioner has commenced
the
performance of its obligation under the contract, but was prevented by
events over which it has no control from completely fulfilling what was
called for on its part to establish, operate and maintain a jai-alai in
the City of Manila. [Rollo, pp. 39-40].
The trial court
disposed as follows:
WHEREFORE, the petitioner is GRANTED and
respondent
City of Manila, is ordered to immediately issue to petitioner, the
permit/license
required under Ordinance No. 7065. [Rollo, p. 40].
Mayor Lopez
appealed said decision to the Court of
Appeals [CA G. R. No. 16477 SP] but on February 9, 1989, he filed a
Notice
of Withdrawal of Appeal.
On May 5, 1989,
the Court of Appeals promulgated
a resolution, the dispositive part of which reads as follows:
For the reasons stated in the Notice of
Withdrawal
of Appeal which was filed on February 9, 1989 by respondents appellants
thru counsel let their appeal from the Decision dated September 9, 1989
and Order dated August 25, 1988, of the Regional Trial Court of Manila
in Civil Case No. 88-45660 be as it is hereby considered WITHDRAWN.
[Rollo,
p. 126].
With the
withdrawal of the appeal, the judgment in
Civil Case No. 45560 became final and executory and was entered in the
Book of Entries of Judgment of the Court of Appeals on May 26, 1989 and
in the Book of Entries of Judgment of the Regional Trial Court on
October
27, 1992.
In 1991, the City
of Manila filed an action to
annul the franchise of private respondent with the Regional Trial
Court,
Branch 23, Manila, docketed as Civil Case No. 91-58913.In said
complaint,
the City of Manila claimed that private respondent had abandoned its
franchise
granted under Ordinance No. 7065 and that said ordinance had been
repealed
by P. D. Nos. 771 and 810.cralaw:red
Judge William
Bayhon of Branch 23 noted that the
issue of abandonment was squarely raised and resolved in Civil Case No.
88-45660, while the issue of the repeal of Ordinance No. 7065 could
have
been pleaded but was not by the City of Manila as a defense in Civil
Case
No. 88-45660. According to him, the city had waived such a defense. To
make matters worse, the city was in estoppel to raise said issue since
it had been issuing permits pursuant to the decision in Civil Case No.
88-45660 and collecting the corresponding fees.cralaw:red
Civil Case No.
91-58913, questioning the effectivity
of the franchise granted private respondent under Ordinance No. 7065,
was
therefore dismissed on December 21, 1991. No appeal was taken from said
dismissal of the case.cralaw:red
The City of
Manila filed with this Court another
case for declaratory judgment to nullify the franchise to operate a
jai-alai
under Ordinance No. 7065 [G. R. No. 101768]. The petition was dismissed
in a resolution dated October 3, 1991 "for lack of jurisdiction."
It may be of
interest to note that three Manila
councilors also filed an action to compel Mayor Lopez to cancel the
permit
and license he issued in favor of private petitioner pursuant to
Ordinance
No. 7065 [Maceda v. Lopez, Civil Case No. 91-58930, Regional Trial
Court,
Branch 37, Manila]. In his answer to said petition, Mayor Lopez pointed
out that in issuing the permit and license, he was just acting in
obedience
to the final judgment in Civil Case No. 88-45660.cralaw:red
Judge Enrico A.
Laxamana, Presiding Judge of Branch
37, made the following observations:
The license was issued by Mayor Lopez in
obedience
to a final order of a court of justice. For him to refuse to issue the
license would place him in danger of being cited in contempt of court.
And for him now to revoke or cancel such license or permit definitely
would
place a greater risk and danger of being cited in contempt of court?
[Rollo,
p. 184].
II.chanrobles virtual law library
As a preliminary
issue, private respondent urged
the dismissal of the petition on the grounds that it was in violation
of
Circular No. 28-91, prohibiting forum shopping, and Revised Circular
No.
1-88, requiring the inclusion in the petition of a verified statement
of
the dates when notice of the judgment, order or resolution subject
thereof,
was received, when a motion for reconsideration, if any, was filed, and
when the notice of the denial thereof was received.cralaw:red
Private
respondent averred that the certification
submitted by petitioners did not disclose (1) that the trial court had
rendered a decision in Civil Case No. 88- 45660 on September 9, 1988
holding
that Ordinance No. 7065 was in full force and effect; (2) that said
decision
had become final and executory after the petitioners withdrew their
appeal
therefrom; (3) that petitioners had also filed Civil Case No. 91-58913,
questioning the effectivity of Ordinance No. 7065, which was dismissed.
Likewise, they alleged that the affidavit did not state the material
dates
necessary for the Court to determine the timelines of the filing of the
petition. [Rollo, pp. 108-110].cralaw:red
The certification
submitted in compliance with
Circular No. 28-91 stated that the petitioner in said petition "has not
commenced a similar action in any court or administrative body against
said respondents nor is there any pending cases of the same nature and
parties in any court or administrative body." Rightly, there was no
case
filed nor was there any case pending wherein the question of whether
the
decision in Civil Case No. 88-45660 can be executed by motion is raised.cralaw:red
The affidavit on
the material dates submitted
by petitioners attested to the dates when petitioners received the
three
orders of respondent judge being questioned in the petition for
certiorari.
These are the dates material for reckoning the timelines of the filing
of the petition to nullify said orders. As far as the issue of the
proper
mode for executing the decision is concerned, the dates given in the
affidavit
are sufficient for the Court to determine whether the petition was
filed
within a reasonable time contemplated in Rule 65.cralaw:red
There is,
therefore, no violation of Circular
No. 28-91 and Revised Circular No. 1-88 to speak of.
On their part, petitioners alleged that the
decision
in Civil Case No. 88-45660, which is being implemented by the three
orders
in question, is null and void for want of jurisdiction of the trial
court
that rendered it. They posited their claim on the theory that Ordinance
No. 7065 had been canceled by P.D. No. 771 in 1975 and that the trial
court
had traduced the law when it made it appear in its decision that
Ordinance
No. 7065 was still in full force and effect (Rollo, pp. 10-13).cralaw:red
Petitioners
failed to appreciate the distinction
between a void and an erroneous judgment and between jurisdiction and
the
exercise of jurisdiction. Jurisdiction should be distinguished from the
exercise thereof (Lamagan v. De La Cruz, 40 SCRA 101 [1971]). The
authority
to decide a case at all and not the decision rendered therein, is what
makes up jurisdiction. The fact that the decision is erroneous does not
divest the court that rendered it of the jurisdiction conferred by law
to try the case (Quiason, Philippine Courts and Their Jurisdictions, p.
199 [1993 ed.]).cralaw:red
Since
jurisdiction is the power to hear and determine
a particular case, or the jurisdiction over the subject matter, it does
not depend upon the regularity of the exercise by the court of its
power
(Century Insurance Co. v. Fuentes, 2 SCRA 1168 [1961]).cralaw:red
In the case at
bench, there is no question that
the Regional Trial Court has the competence to hear and decide Civil
Case
No. 88-45660, a special civil action for mandamus under Rule 65 of the
Revised Rules of Court. There is also no quarrel that said court has
jurisdiction
over an action for specific performance under Section 19(1) of the
Judiciary
Reorganization Act of 1990 (Lapitan v. Scandia, 24 SCRA 479 [1968]).
Assuming
arguendo that the Regional Trial Court did not have jurisdiction over
the
said civil case, the principle of estoppel will operate to bar
petitioners
from raising the question of jurisdiction for the first time in the
instant
case (Tijam v. Sibonghanay, 23 SCRA 29 [1968]).cralaw:red
Having
jurisdiction over the civil case, whatever
error may be attributed to the trial court, is simply one of judgment,
not of jurisdiction. An error of judgment cannot be corrected by
certiorari
but by appeal (Robles v. House of Representatives Electoral Tribunal,
181
SCRA 780 [1990]; De Castro v. Delta Motor Sales Corporation, 57 SCRA
344
[1978]; Galang v. Endencia, 73 Phil. 391 [1941]). In fact, Mayor Lopez
availed of such a remedy when he appealed the decision in Civil Case
No.
88-45660 to the Court of Appeals (CA G. R. No. 16477-SP).cralaw:red
The issue on the
cancellation of Ordinance No.
7065 by President Marcos could have been raised as a special defense in
Civil Case No. 88-54660 but was not. The Revised Rules of Court frown
at
the piecemeal presentation of issues, and jurisprudence bars from
subsequent
litigation between the same parties matters that could have been raised
in a previous case (Revised Rules of Court, Rule 39, Sec. 49[b];
Gonzales
v. Gonzales, 26 SCRA 72 [1968]).cralaw:red
The City of
Manila should have pursued in the
appellate courts its appeal questioning the dismissal of Civil Case No.
91-58913, where the trial court ruled that Mayor Lopez and the city
could
no longer claim that Ordinance No. 7065 had been canceled by President
Marcos because they failed to raise this issue in Civil Case No
88-54660.cralaw:red
At any rate, the
unilateral cancellation of the
franchise, which has the status of a contract, without notice, hearing
and justifiable cause is intolerable in any system where the Rule of
Law
prevails (Poses v. Toledo Transportation Co., 62 Phil. 297 [1935]);
Manila
Electric Co., v. Public Utility commissioners, 30 Phil. 387 [1915]).cralaw:red
As a fallback,
petitioners claimed that assuming
arguendo that the judgment in Civil Case No. 88-45660 dated September
9,
1986 is valid, its execution by mere motion on March 11, 1994 is
irregular.
Citing Section 6 of Rule 39 of the Revised Rules of Court, they
contended
that the decision must be enforced by action, not motion [Rollo, pp.
13-14].cralaw:red
Petitioners
erroneously counted the five-year
period under Section 6 of Rule 39 from the date of the decision. Said
Rule
provides:
Execution by Motion or by Independent
Action.-
A judgment may be executed on motion within five [5] years from the
date
of its entry or from the date it becomes final and executory. After the
lapse of such time and before it is barred by the statute of
limitations,
a judgment may be enforced by action.
It must be
remembered that Mayor Lopez appealed the
decision in Civil Case No. 88-45660 to the Court of Appeals, that he
filed
the motion to withdraw the appeal on February 9, 1989, and that the
Court
of Appeals approved the withdrawal of the appeals only on May 5, 1989.
The entries of judgment were made on May 26, 1989 in the Court of
Appeals,
and on October 27, 1992 in the Regional Trial Court. The motion to
compel
the City Mayor to issue the permit or license pursuant to Ordinance No.
7065, was filed on March 14, 1994, or well within the five-year period
whether such period is counted from May 5, 1989, May 26, 1989 or
October
27, 1992.
Petitioners
hypothesized that the withdrawal of
an appeal operates as if no appeal was taken at all and that the
five-year
period should be counted from January 24, 1989, the fifteenth day from
the service of a copy of the decision on Mayor Lopez. Petitioners
anchored
their theory on Section 9, Rule 40 and Section 2, Rule 50 of the
Revised
Rules of Court. [Rollo, pp. 15-16].cralaw:red
We find nothing
in said Rules to support petitioners'
posture. Sec. 9 of Rule 40, in pertinent part, provides:
If the appeal is withdrawn, or dismissed
for
failure to prosecute, the judgment shall be deemed revived and shall
forthwith
be remanded to the justice of the peace or municipal court for
execution.
Rule 40
governed the procedure for appeals from the
inferior courts to the Court of First Instance before they became
courts
of record. A provision on the revival of the judgment was necessary
because
at those times the decisions appealed from were automatically vacated
and
trials de novo had to be conducted by the Court of First Instance.
Sec. 2 of Rule
50, which governs the dismissal
of an appeal by the Court of Appeals, in pertinent part, provides:
Upon the receipt of such certification
[of the
Clerk of Court that the appeal has been dismissed] in the lower court
the
case shall stand there as though no appeal had ever been taken, and the
judgment of the said court may be enforced with the additional costs
allowed
by the appellate court upon dismissing the appeal.
The phrase "the
case shall stand there as if no appeal
has been taken" refers to the manner of how the judgment may be
enforced
as can be gleaned from the phrase following it that "the judgment of
said
court may be enforced with the additional costs allowed by the
appellate
court" In other words, the judgment shall be executed in
accordance
with its original disposition, no modifications thereof having been
ordered
by the Court of Appeals. Certainly, said Rule has nothing to do with
the
five-year period for enforcing a judgment by motion, which is governed
by Section 6 of Rule 39.
Mayor Lim's vow
to clean the city of vices, like
gambling, is commendable. But in the process, he should bear in mind
that
there are forms of gambling, and jai-alai is one them, that Congress
has
deigned to allow. The pronouncement of Justice Isagani A. Cruz in Mayor
Pablo Magtales v. Pryce Properties Corporation, G. R. No. 111097. July
20, 1994, apropos the operation of a gambling casino in Cagayan de Oro
by the Philippine Amusement and Games Inc., is cogent to the instant
case,
thus:
The morality of gambling is not a
justiciable
issue. Gambling is not illegal perse. While it is generally considered
inimical to the interests of the people, there is nothing in the
Constitution
categorically proscribing or penalizing gambling or, for that matter,
even
mentioning it at all. It is left to Congress to deal with the activity
as it sees fit. In the exercise of its own discretion, the legislature
may prohibit gambling altogether or allow it without limitation or it
may
prohibit some forms of gambling and allow others for whatever reasons
it
may consider sufficient. Thus, it has prohibited jueteng and monte but
permits lotteries, cockfighting and horse-racing. In making such
choices,
Congress has consulted its own wisdom, which this Court has no
authority
to review, much less reverse. Well has it been said that courts do not
sit to resolve the merits of conflicting theories. (Garcia v. Executive
Secretary, 204 SCRA 516, quoting Cooley, Constitutional Limitations,
8th
ed., 379-380) That is the prerogative of the political departments. It
is settled that questions regarding the wisdom, morality, or
practicability
of statutes are not addressed to the judiciary but may be resolved only
by the legislative and executive departments, to which the function
belongs
in our scheme of government [Decision, p. 8].
It was Mayor
Lopez himself who assessed the benefits
that will accrue to the city with the operation of the jai-alai.
Explaining
his motion to withdraw the appeal from the decision in Civil Case No.
88-45660,
he said:
The beneficient effects to the appellant
City
of Manila, especially during this critical period in our national
economy,
are manifold and undeniable. The franchise operation shall be a great
boost
toward generating much needed revenues for the City coffers estimated
at
P100,000.00 a day by way of franchise fees alone, not to mention other
municipal taxes and regulatory fees. Millions of pesos in real estate
taxes
on the improvements would be realizable. Employment opportunities to
little
less than five hundred people in the main building and hundreds of
others
in the off track fronton shall also be created. These is also the fact
that the jai-alai building, together with all the equipment therein,
with
an aggregate estimated cost of P100 million shall belong to the city
upon
termination of the franchise terms. [Rollo, p. 127].
Considerations
of equity and fair play militate against
the petition. The Office of the Mayor of the City of Manila issued on
January
19, 1990, January 21, 1991 and May 25, 1992 business permits in favor
of
private respondent to operate a jai-alai fronton and collected the
corresponding
license and regulatory fees [Rollo, pp. 151-153; 175-177; 178-198].
Private
respondent has spent close to P100,000,000.00 to finish the
construction
of the jai-alai building and fronton.
The petition was
brought under "Rule 42, Section
1 in relation to R. A. No. 5440, to declare null and void ab initio
for want of jurisdiction, the Decision and Orders dated March 28, 1994,
April 11, 1994 and April 20, 1994 issued in Civil Case No. 88-45660 of
the Regional Trial Court of Manila, Branch 40" [Rollo, p. 2].
Said
Rule and law refer to appeals to the Supreme Court from the decisions
of
the Regional Trial Court. Clearly, they do not involved the review of
orders
of the Regional Trial Court rendered after the decision of the trial
court
has become final and executory. Such a review must be taken under Rule
65, which can be given due course only when there is a showing of lack
or excess of jurisdiction or grave abuse of discretion on the part of
the
trial court (Revised Rules of Court, Rule 67, Section 1; Planter's
Products
v. Court of Appeals, 193 SCRA 563 [1991]). We find no abuse of
discretion,
much less lack of or excess of jurisdiction, on the part of respondent
judge.cralaw:red
WHEREFORE, the
petition for certiorari is DISMISSED.cralaw:red
SO ORDERED.
Bellosillo, and
Kapunan,
JJ
. concur.
Cruz, J.,
is on leave.
SEPARATE
OPINION
DAVIDE, JR., J.,
Concurring:
I concur in the
result. I wish, however, to express
my view on the matter of the constitutionality of P. D. No. 771 and on
the alleged waiver of the defense of repeal of the ordinance by P. D.
No.
771.
Ordinance No. 7065 of the City of Manila
was
enacted on 7 September 1971 pursuant to Section 18[jj] of the Revised
Charter
of Manila. It authorized the City Mayor "to allow and permit the
Associated
Development Corporation to establish, maintain and operate a jai alai
in
the City of Manila" under the terms and conditions therein provided and
"such other terms and conditions as he [the Mayor] may prescribe for
good
reasons of general interest." The Ordinance was vetoed by the Mayor on
27 September 1971; it was later modified and amended by the Municipal
Board
on 12 October 1971. The amended ordinance was approved by the Mayor on
13 November 1971.
On 20 August
1975, then President Ferdinand E.
Marcos enacted P. D. No. 771 "revoking all powers and authority of
local
government to grant franchise, license or permit and regulate wagers or
betting by the public on horse and dog races, jai alai or basque
pelota,
and other forms of gambling." Sections 1 and 3 thereof expressly
provide:
Sec. 1. Any provision of law to the
contrary
notwithstanding, the authority of chartered cities and other local
governments
to issue license, permit or any form of franchise to operate, maintain
and establish horse and dog race tracks, jai-alai or other forms of
gambling
is hereby revoked.
Sec. 3. All existing franchises and
permits
issued
by local government are hereby revoked and may be renewed only in
accordance
with the Decree."
On 5 May 1988,
the Associated Development Corporation
herein private respondent, sought to enforce its rights under Ordinance
No. 7065, but then Mayor Gemeliano C. Lopez denied its request. Having
failed in its motion to reconsider the denial, the private respondent
filed
with the Regional Trial Court (RTC) of Manila a petition for mandamus
and
specific performance, which was docketed as Civil Case No. 88-45660 and
assigned to Branch 40 thereof.
In its decision
rendered on 9 September 1989 in
the aforesaid civil case, the trial court held that Ordinance No. 7065
created a binding contract between the City of Manila and the private
respondent
and that the City Mayor has no discretion but "to grant the necessary
permit
or license allowing it to operate and maintain a jai-alai in the City
of
Manila pursuant to Ordinance No. 7065." It then ordered the City of
Manila
to immediately issue to the private respondent the permit/license
required
under Ordinance No. 7065.cralaw:red
The appeal from
the aforesaid decision to the
Court of Appeals [CA-G. R. No. 16477 SP] having been withdrawn, the
Court
of Appeals issued its Resolution of 5 May 1989 considering the appeal
as
withdrawn.cralaw:red
In 1991, the City
of Manila instituted Civil Case
No. 91-58913 in the RTC of Manila to annul the franchise granted to the
private respondent on the grounds that the latter had abandoned its
franchise
under Ordinance No. 7065 and that P.D. Nos. 771 and 810 had repealed
said
Ordinance No. 7065. The court (per Judge Wiliam Bayhon, Branch 23)
dismissed
the case because the issue of abandonment was squarely raised and
resolved
in Civil Case No. 88-45660, while the issue of repeal was not raised or
pleaded therein as a defense, hence the City was in estoppel to raise
it
considering further that it has been issuing permits pursuant to the
decision
in said Civil Case No. 88-45660 and collecting the corresponding fees.
The City of Manila did not appeal from the dismissal order.cralaw:red
On 28 March 1994,
the RTC issued an order in Civil
Case No. 88-45660 granting the private respondent's motion to compel
petitioner
Mayor Lim to issue a permit or license pursuant to Ordinance No. 7065
upon
compliance by the private respondent with all the requirements
prescribed
therein. A motion to reconsider the order was denied in the Order of 11
April 1994. On 20 April 1994, the court reiterated the Order of 28
March
1994 and directed Mayor Lim to immediately issue to the private
respondent
the necessary permit or license pursuant to Ordinance No. 7065.cralaw:red
Hence this
petition.cralaw:red
I. There can be
no question that, as written,
Sections 1 and 3 of P. D. No. 771 revoked the authority of chartered
cities
and other local governments to issue a license, permit, or any other
form
of franchise to operate, establish and maintain jai alai, etc., as well
as all existing franchise and permits issued by local governments.
Indisputably,
the decree affected the Charter of the City of Manila [R. A. No. 409,
as
amended]. It repealed, more specifically, paragraph [jj] of Section 18
of the said Charter on the authority of the City of Manila to grant
exclusive
rights to establish, inter alia, jai alai, which is the published in
the
15 September 1975 issue of the Official Gazette [71 O. G. No. 37, p.
5946].
I agree that insofar as Ordinance No. 7065 and the franchise granted
therein
are concerned, P. D. No. 771 cannot validly revoke them; otherwise, and
to that extent, the decree would be unconstitutional under the
non-impairment
of contract clause [Section 10, Article III, 1987 Constitution]. The
franchise
is a contract solemnly entered into between the City of Manila and the
private respondent. In all other respects, however, the said decree is
valid and binding.cralaw:red
II. The failure
of the City of Manila to plead
as a defense the repeal of the ordinance by P. D. No. 771 is not fatal.
In the first place, the trial court should have taken judicial notice
of
P. D. No. 771. Under Section 1, Rule 129 of the Rules of Court, courts
are mandatorily required to take judicial notice of, among other
things,
"the official acts of the legislative, executive and judicial
departments
of the Philippines." Besides, even granting for the sake of argument
that
P. D. No. 771 validly repealed Ordinance No. 7065, such repeal could
have
only meant lack of cause of action on the part of the private
respondent
in the action for mandamus to enforce the ordinance. Failure to set up
the defense of lack of cause of action in a motion to dismiss or in the
answer is not a waiver thereof. Section 2, Rule 9 of the Rules of Court
provides that :
Defenses and
objections not pleaded either in
a motion to dismiss or in the answer are deemed waived; except the
failure
to state a cause of action which may be alleged in a later pleading, if
one is permitted, or by a motion for judgment on the pleadings, or at
the
trial on the merits; but in the last instance, the motion shall be
disposed
of as provided in Section 5 of Rule 10 in the light of any evidence
which
may have been received. Whenever it appears that the court has no
jurisdiction
over the subject matter, it shall dismiss the action. (Italics supplied)
In any event,
as earlier stated, P.D. No. 771
cannot validly revoke Ordinance No. 7065 and the franchise granted
therein. |