Case Summary (G.R. No. 198201)
Key Dates and Procedural Posture
Canal-Cover Project completed February 16, 2006; DPWH and Davao City correspondence in 2008 (City Engineer’s letter April 17, 2008; City Legal Officers’ opinion September 17, 2008); demolition performed October 20, 2008; Ombudsman decision finding respondents guilty of simple neglect (April 21, 2010) later amended to simple misconduct (May 6, 2010) imposing six-month suspension; Court of Appeals (CA) granted preliminary injunction (August 4, 2010) and ultimately exonerated respondents (January 28, 2011) and made the injunction permanent; petitions for review consolidated in the Supreme Court; final judgment: petitions denied and CA decision affirmed.
Legal Issues Presented
- Whether presidential immunity required dismissal or abeyance of the petitions; 2) Whether respondents committed simple misconduct by summarily demolishing a national-government-funded canal-cover project (allegedly a nuisance per se) without complying with Section 216 of the IRR of the National Building Code; 3) Whether the CA erred in issuing a writ of preliminary injunction enjoining enforcement of the Ombudsman’s suspension order.
Factual Nexus and Nature of the Project
The Canal-Cover Project (locally called “Nograles Park”) was a concrete covering constructed over a drainage canal in Quezon Boulevard, Davao City, funded by DPWH but physically affecting local drainage. After the cover impeded dredging and contributed to flooding, Davao City repeatedly informed DPWH; DPWH created manholes and participated in later demolition-related activities. City Legal Officers advised that the structure was a nuisance and could be summarily abated; the City Engineer notified DPWH of planned demolition three days before the demolition; DPWH representatives assisted during demolition.
Applicable Statutory and Regulatory Provisions
- 1987 Constitution (framework governing Ombudsman independence and presidential immunity principles).
- Presidential Decree No. 1096 (National Building Code) and its IRR, particularly Sections 103, 203, 205, 214–216 (procedures and powers relating to declaration and abatement/demolition of dangerous or nuisance structures, 15‑day notice and appeal to the Secretary of Public Works and Highways).
- Local Government Code (1991), Section 477 (city engineer acts as local building official).
- Republic Act No. 6770, section 27 (Ombudsman orders immediately executory when supported by substantial evidence; procedures for appeal).
- Ombudsman Administrative Order No. 7/17 (administrative execution rules; penalties and executory nature of certain Ombudsman decisions).
Legal Characterization: Nuisance Per Se Versus Per Accidens
The Court reviewed Civil Code Article 694–695 definitions and established jurisprudential distinction: nuisances per se (summarily abatable without notice because they endanger immediate safety) versus nuisances per accidens (require notice and hearing). The CA and Ombudsman factually concluded the canal-cover did not constitute a nuisance per se because the flooding did not present the immediate danger associated with an open hazardous condition. Where a structure is not a nuisance per se, municipal authorities cannot unilaterally effect extrajudicial summary abatement without observing applicable procedures or judicial determination.
Interpretation and Application of Section 216 (IRR, National Building Code)
Section 216 prescribes: (1) a finding/declaration by the building official; (2) written notice to owner/occupant giving 15 days to act; (3) right to appeal to the Secretary of Public Works and Highways within the 15‑day period; and (4) remedial steps and sequencing culminating in demolition by the building official upon failure to comply. The Court emphasized that these rules anticipate separate roles for owner (here, the State/DPWH), the building official, and the Secretary. The facts showed DPWH was aware of the flooding and had been involved before demolition; DPWH did not object and even sent representatives who aided demolition. Where the owner is the national government and its representative participated and did not object, the notice and appeal rationale embodied in the 15‑day requirement was substantially, if not strictly, satisfied.
Building Official Permits and Practical Constraints
Section 216 requires that “all required permits” be secured within 15 days; the Rules, however, also contemplate that an incumbent City Engineer may be the building official (per Local Government Code Section 477 and PD 1096/IRR). The Court recognized the practical absurdity of requiring the building official to obtain a demolition permit from the same office that would issue it and then penalizing that official for strict noncompliance. Given that the building official exercised the authority to declare and effect abatement and the DPWH (owner) tacitly assented and participated, the Court found the failure to produce a formal demolition permit or strict observance of the 15‑day clock did not automatically translate into actionable simple misconduct.
Definition and Threshold of Misconduct Applied to Respondents
Misconduct is “a transgression of some established and definite rule of action,” including unlawful behavior or gross negligence; it is grave only if additional elements (e.g., corruption, willful intent) are present. Because the Court of Appeals and Ombudsman found the canal-cover not to be a nuisance per se, respondents should have followed Section 216. But the Court concluded that, on the facts—DPWH’s prior knowledge and active participation, the owner’s practical acquiescence, and the building official’s overlapping role—there was no sufficient proof of willful intent or gross negligence to sustain a finding of simple misconduct. Consequently, respondents were properly exonerated of simple misconduct.
Presidential Immunity and the OSG’s Motion to Withdraw
The Supreme Court reiterated settled doctrine: the sitting President enjoys immunity from suit during tenure as to civil, criminal, and administrative proceedings (to protect functioning of the executive), but such immunity is not absolute and does not confer impunity; unlawful acts are not acts of the State and accountability remains (removal via impeachment is the constitutional remedy). The OSG filed a Motion to Withdraw th
...continue readingCase Syllabus (G.R. No. 198201)
Case Caption, Court, and Decision
- Case decided by the Supreme Court, Second Division, G.R. Nos. 198201 and 198334, decision dated March 15, 2023, penned by Justice Leonen, Senior Associate Justice.
- Petitions for Review on Certiorari filed by the Office of the Ombudsman (G.R. No. 198201) and by Prospero C. Nograles (G.R. No. 198334), consolidated by the Court on November 28, 2011.
- The Supreme Court DENIED the Petitions and AFFIRMED the Court of Appeals Decision (CA-G.R. SP No. 113919) that exonerated the respondents of simple misconduct and made permanent the writ of preliminary injunction issued by the Court of Appeals.
Parties and Respondents
- Petitioners: Office of the Ombudsman; Prospero C. Nograles (Representative Nograles) as a separate petitioner.
- Respondents: Rodrigo R. Duterte (then City Mayor of Davao City, later President of the Republic), Wendel E. Avisado (then City Administrator), Jose D. Gestuveo, Jr. (then City Engineer), Elmer B. RaAo and J. Melchor Quitain (then City Legal Officers), and Yusop A. Jimlani (then Chief of Drainage Maintenance Unit).
- Additional factual notes about respondents’ later positions as referenced: Rodrigo R. Duterte later elected President (May 10, 2016); Wendel E. Avisado later Secretary of Budget and Management (resigned due to health); Yusop A. Jimlani Presidential Adviser on Local Extremist Groups; Melchor V. Quitain Chief Presidential Legal Counsel.
Factual Background: Canal-Cover Project and Its Effects
- Canal-Cover Project: Initiated and completed February 16, 2006, in Quezon Boulevard, Davao City, as a Canal-Cover Project and part of improvement and beautification of a public park, allegedly to secure residents and children from accidents, prevent garbage disposal and clogging of canal, and prevent foul odors.
- Construction detail and problem: Concrete flooring built over a drainage canal prevented dredging of silt and removal of garbage; the obstruction impeded flow resulting in flooding of Sta. Ana and Quezon Boulevard when it rained.
- City response prior to demolition: In first quarter 2008, Davao City informed the Department of Public Works and Highways (DPWH) of flooding; DPWH created manholes and performed dredging but the problem persisted.
- City Engineer action: By April 17, 2008, the City Engineer’s Office wrote to DPWH about plan to remove the concrete flooring; City Engineer Gestuveo sent a letter to DPWH District Engineer Isagani G. Javier on October 16, 2008, advising of demolition scheduled October 20, 2008; demolition proceeded on October 20, 2008.
- Involvement of DPWH representatives: DPWH did not object upon being informed and advised inventory and involvement of an Inspectorate Team; DPWH representatives assisted in demolition and cut reinforcing steel bars.
Legal Opinions and DPWH / Justice Secretary Position
- City Legal Opinion: On September 17, 2008, City Legal Officers RaAo and Quitain issued legal opinion that the Canal-Cover Project was a nuisance per se, obstructing free passage of water and constructed without building permit, concluding the project may be abated or summarily demolished.
- Justice Secretary Opinion: In Opinion No. 10 dated November 12, 2008, then Secretary of Justice Raul M. Gonzales opined that erection, alteration, repair or demolition requires a building permit from the local building official. Lack of permit does not per se subject structure to immediate demolition because Section 103 of IRR of the National Building Code allows legalization if conforming. Under Section 216 of the IRR, DPWH ultimately determines if a structure is nuisance per se and demolition may occur only upon failure to comply with building official/Secretary orders.
Administrative Complaints, Ombudsman Proceedings, and Decision
- Complaints filed: Representative Nograles filed with the Office of the Ombudsman (1) complaint for grave abuse of authority against City Engineer Gestuveo, City Administrator Avisado, and Chief Jimlani (OMB M-A-09-061-B); (2) complaint for grave misconduct against Mayor Duterte, Avisado, Gestuveo, Atty. RaAo, Atty. Quitain, and Jimlani (OMB C-A-090269-F).
- Ombudsman Decision (April 21, 2010): Found respondents guilty of simple neglect of duty and imposed six months suspension; dispositive portion originally read guilty of simple neglect and suspended six months; later corrected by Ombudsman Order (May 6, 2010) to find respondents guilty of simple misconduct and impose six months suspension.
- Alleged damage to national government from demolition: Office of the Ombudsman alleged damage amounting to PHP 2,000,000.00 caused by summary demolition.
Petition to the Court of Appeals, Preliminary Injunction, and CA Ruling
- Petitioners (responding local officials) to Court of Appeals: Challenged Ombudsman Decision; argued demolition without permit was not simple misconduct because project was nuisance per se that caused flooding; argued city engineer acted as local building official under Section 477 of Local Government Code, thus no separate permit required; argued City Engineer’s declaration and letter to DPWH and DPWH participation satisfied procedural requirement.
- Court of Appeals TRO / Preliminary Injunction (August 4, 2010): Issued writ enjoining Ombudsman from enforcing its April 21, 2010 Decision pending resolution.
- Court of Appeals Decision (January 28, 2011): Found Canal-Cover Project was not nuisance per se but held respondents could not be held liable for simple misconduct in demolition; reasoned Section 477 of Local Government Code makes city engineer the local building official so separate permit unnecessary; found City Engineer’s declaration, letter to DPWH, and DPWH representatives’ active participation constituted sufficient compliance under Section 216 of IRR; reversed and set aside Ombudsman Decision; made preliminary injunction permanent.
Proceedings Before the Supreme Court and Consolidation
- Motions for Reconsideration: Filed by Ombudsman and Representative Nograles to Court of Appeals; all denied (August 9, 2011 Resolution).
- Petitions for Review on Certiorari: Filed with the Supreme Court by Office of the Ombudsman and by Representative Nograles (G.R. Nos. 198201 and 198334); consolidated by Supreme Court (November 28, 2011).
- Additional procedural filings: Solicitor General later filed a Motion to Withdraw the Ombudsman’s petition; Ombudsman filed Comment opposing withdrawal; OSG later manifested it no longer represented the Ombudsman in this matter.
Issues Presented to the Supreme Court
- Whether the Petitions should be dismissed under the doctrine of presidential immunity (in view of Mayor Duterte’s subsequent election as President).
- Whether respondents committed simple misconduct by summarily demolishing a national government project on grounds it was a nuisance per se.
- Whether the Court of Appeals erred in issuing a writ of preliminary injunction enjoining the Office of the Ombudsman from executing its penalty of six months suspension.
Arguments of the Parties Before the Supreme Court
- Ombudsman’s position:
- Section 216 IRR applicable because Canal-Cover Project was funded by national government.
- Respondents “blatantly neglected to follow the rules” by demolishing without strict compliance with 15-day notice requirement of Section 216.
- Canal cover was not nuisance per se because it did not affect immediate safety, property, or health and comfort of the community in the manner required; respondents committed simple misconduct by breaching norms and summarily demolishing, causing PHP 2,000,000.00 damage.
- Representative Nograles’ position:
- Echoed Ombudsman’s arguments on noncompliance with Section 216 (15-day notice and demolition permit).
- Argued Section 477 (city engineer as local building official) is subject to Sections 203 and 207 of IRR which allow Secretary of Public Works and Highways to review building official’s decisions; City Engineer’s letter to DPWH insufficient to satisfy procedure.
- Invoked Section 27 (2) of RA 6770 that Office of the Ombudsman’s factual findings are conclusive if supported by substantial evidence; thus, Ombudsman’s decision should be immediately executory.
- Respondents’ position:
- Claimed Canal-Cover Project was nuisance per se because concrete flooring prevented dredging and caused flooding.
- Asserted the structure known locally as “Nograles Park” was not a park as understood in law; subsequent summary demolition cannot be misconduct.
- Maintained no need to apply for demolition permit because City Engineer’s office was the issuing authority and he acted as building official.
- Argued Court of Appeals’ stay of execution was proper because Ombudsman Decision was “patently erroneous and reeked of political flavor” and because the suspension was imposed days before 2010 elections (condonat