if there is already a writ of execution, there must still be a need for a special order for the purpose of demolition issued by the court before the officer in charge can destroy, demolish or remove improvements over the contested property

Indeed, the basic facts of this case point squarely to the applicability of the law on human relations.  First, the complaint for civil liability was filed way AHEAD of the information on the Anti-Graft Law.  And, the complaint for damages specifically invoked defendant Mayor Comendador’s violation of plaintiff’s right to due process.  Thus:

x x x x

       In causing or doing the forcible demolition of the store in question, the individual natural defendants did not only act with grave abuse of authority but usurped a power which belongs to our courts of justice; such actuations were done with malice or in bad faith and constitute an invasion of the property rights of plaintiff(s) without due process of law.

x x x x

          The Court is in one with the prosecution that there was a violation of the right to private property of the Spouses Bombasi.  The accused public officials should have accorded the spouses the due process of law guaranteed by the Constitution and New Civil Code.  The Sangguniang Bayan Resolutions as asserted by the defense will not, as already shown, justify demolition of the store without court order. This Court in a number of decisions[51] held that even if there is already a writ of execution, there must still be a need for a special order for the purpose of demolition issued by the court before the officer in charge can destroy, demolish or remove improvements over the contested property.[52]  The pertinent provisions are the following:

Before the removal of an improvement must take place, there must be a special order, hearing and reasonable notice to remove. Section 10(d), Rule 39 of the Rules of Court provides:

(d) Removal of improvements on property subject of execution. – When the property subject of execution contains improvements constructed or planted by the judgment obligor or his agent, the officer shall not destroy, demolish or remove said improvements except upon special order of the court, issued upon motion of the judgment obligee after due hearing and after the former has failed to remove the same within a reasonable time fixed by the court.

The above-stated rule is clear and needs no interpretation. If demolition is necessary, there must be a hearing on the motion filed and with due notices to the parties for the issuance of a special order of demolition.[53]

This special need for a court order even if an ejectment case has successfully been litigated, underscores the independent basis for civil liability, in this case, where no case was even filed by the municipality.

          The requirement of a special order of demolition is based on the rudiments of justice and fair play. It frowns upon arbitrariness and oppressive conduct in the execution of an otherwise legitimate act. It is an amplification of the provision of the Civil Code that every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.[54]

http://sc.judiciary.gov.ph/jurisprudence/2011/march2011/159017-18.htm

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About Erineus

Born on December 28, 1965, Surallah, South Cotabato, Southern Mindanao, Philippines.
This entry was posted in Ejectment, Writ of Execution and tagged , , , . Bookmark the permalink.

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