Court dumps plea vs. City South Road Properties deals

Tuesday, May 22, 2007


A CEBU judge found no basis to issue a temporary restraining order (TRO) on Cebu City Government officials’ transactions for the development of the South Road Properties (SRP).

Regional Trial Court (RTC) Judge Soliver Peras ordered the presentation of “affirmative defenses” tomorrow by Cebu City Mayor Tomas Osmeña, the City Council, Cebu Investment Promotions Center (CIPC) Inc. and the Register of Deeds.

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This is in relation to the civil suit Tinago Barangay Captain Joel Garganera filed to prevent the City Officials, CIPC and the Register of Deeds from marketing, selling, disposing of or leasing the SRP.

Quoting the Court of Appeals, Peras ruled, “For the issuance of the writ of preliminary injunction to be proper, it must be shown that the invasion of the right sought to be protected as material and substantial, that the right of complainant is clear and unmistakable, that there is urgent and paramount necessity for the writ to prevent serious damage.”

He said the “presumption of validity and regularity” in the performance of public functions “cannot be defeated by mere allegations that the said acts are unconstitutional or invalid without any evidence supporting such allegations.”

The judge found basis in the President’s issuance of Proclamation 843, which transferred ownership of the SRP from the National Government to the Cebu City Government and declared such lands as alienable and disposable.

Around two hectares of the property has been leased to Bigfoot Entertainment Philippines, Inc. for 25 years.

This was one of the transactions questioned by Garganera, who said that the President cannot, without congressional authority, amend an earlier proclamation that reserved parcels of land in Pardo and Talisay as public domain.

But since the President’s proclamation was done upon recommendation of the Department of Environment and Natural Resources, Judge Peras said, “The President acted within the confines and limits of the power vested in her by the Constitution.”

In the same 17-page order, Peras also ruled that Garganera is eligible to pursue his lawsuit, but denied the appearance of the Association of Barangay Councils (ABC)-Cebu City Chapter in the case.

While the respondents questioned Garganera’s personality to sue as a taxpayer, the court stated: “When the matter before the court entails public interest, more so that it involves the economic development of the country, the disclosure provision in the Constitution would constitute sufficient authority in upholding the standing of a petitioner.”

The same cannot be said of the ABC, which, Judge Peras said, does not have a direct interest on the matter.

The ABC had wished to intervene in the case since its office is located at the SRP. (JGA)