#11 - Mun. of Tupi - V - Faustino

MUNICIPALITY OF TUPI, REPRESENTED BY ITS MUNICIPAL MAYOR
REYNALDO S. TAMAYO, JR., PETITIONER, v. HERMINIO B. FAUSTINO

G.R. No. 231896, August 20, 2019
LAZARO-JAVIER, J.:
FACTS:
Petitioner Municipality of Tupi enacted a speed limit ordinance which in
practice reduced the number of accidents at the covered roads but unfortunately
did not comply with legal requirements
The Ordinance further prescribes penalties for violations, i.e. a fine of
P1,000.00 for the first offense, P1,500.00 for the second offense, and fine of
Php2,000.00 or thirty (30) day imprisonment or both for the third offense.
Atty. Faustino was flagged down by local traffic enforcers for over
speeding. He was running at seventy kilometers per hour (70 kph) along the
expanse of the highway bordering Crossing Acmonan to Crossing Cebuano
which had a maximum speed set of 40 kph per the Ordinance. He was fined
Php1,000.00 which he paid under protest.
Faustino filed before the RTC, a petition for declaratory relief, annulment of

the Speed Limit Ordinance, and damages, with prayer for temporary restraining order
entitled Herminio B. Faustino v. Municipality of Tupi and docketed as Special Civil
Action No. 104-14.
Respondent averred that the Ordinance was unconstitutional because it

was not published in a newspaper of general circulation in violation of the due
process clause of the Constitution, the Local Government Code, the Tax Code, and
Republic Act (RA) No. 4136 or the Land Transportation and Traffic Code. He prayed
that the Ordinance be declared unconstitutional; the fines he and the others paid
be refunded to them; and for the shame, besmirched reputation, wounded
feelings, and social humiliation he suffered by reason of his apprehension under
the unconstitutional ordinance, moral damages be granted him.
The petitioner countered that the present action for declaratory relief was
unavailing because the Ordinance had already been breached and it was in
accord with Section 36 of RA No. 4136.
The Office of the Solicitor General (OSG) filed its comment through the
Provincial Prosecutor of South Cotabato. The OSG noted that the Ordinance
imposed stiffer penalties than those imposed by RA No. 4136 specifically on the
30-day imprisonment. The OSG further observed that violation of the Ordinance
authorized the confiscation of driver's license and issuance of Temporary
Operator's Permit (TOP), which only a deputized Land Transportation Office
(LTO) personnel can legally do.
The OSG submitted that the Ordinance did not conform with RA No. 4136
which itself enjoined all local government units: (a) to enact or enforce
ordinances fixing maximum allowable speeds other than those provided in
Section 35 of RA No. 4136; (b) classify public highways for traffic purposes and
make appropriate signs therefor; and (c) submit a certification to the LTO
Commissioner of the names, locations, and limits of all "through streets"
designated as such.
The trial court declared the Ordinance void ab initio. It further ordered
petitioner to refund all the fines thus far collected by virtue of the Ordinance.
Petitioner now urges the Court to exercise its power of judicial review on a
pure question of law
ISSUES:
Whether or not the petition for declaratory relief the proper remedy at the
first instance to assail the validity of Municipal Ordinance No. 688, Series of 2014;
and
Whether or not the operative doctrine apply in the directive to refund the
P1,000.00 fine imposed on respondent.
RULING:
No.
The petition for declaratory relief initiated by respondent below is not the
proper remedy to challenge the validity of Municipal Ordinance No. 688, Series
of 2014. For the Ordinance has already been enforced and the penalty for its
violation imposed against respondent. Aquino v. Municipality of Malay, Aklan,
et al.31 decreed:
a. Declaratory relief no longer viable

We find merit in petitioner's contention that the special writ of certiorari,
and not declaratory relief, is the proper remedy for assailing EO 10. As provided
under Sec. I, Rule 63 of the Rules of Court:
SECTION 1. Who may file petition. - Any person interested under a

deed, will, contract or other written instrument, whose rights are
affected by a statute, executive order or regulation, ordinance or any
other governmental regulation may, before breach or violation
thereof, bring an action in the appropriate Regional Trial Court to
determine any question of construction or validity arising, and for a
declaration of his rights or duties, thereunder. x x x (Emphasis in the
original)
An action for declaratory relief presupposes that there has been no

actual breach of the instruments involved or of the rights arising
thereunder. Since the purpose of an action for declaratory relief is to secure an
authoritative statement of the rights and obligations of the parties under a
statute, deed, or contract for their guidance in the enforcement thereof, or
compliance therewith, and not to settle issues arising from an alleged breach
thereof, it may be entertained before the breach or violation of the statute,
deed or contract to which it refers. A petition for declaratory relief gives a
practical remedy for ending controversies that have not reached the state where
another relief is immediately available; and supplies the need for a form of action
that will set controversies at rest before they lead to a repudiation of obligations,
an invasion of rights, and a commission of wrongs.
In the case at bar, the petition for declaratory relief became unavailable
by EO 10's enforcement and implementation. The closure and demolition of the
hotel rendered futile any possible guidelines that may be issued by the trial court
for carrying out the directives in the challenged EO 10. Indubitably, the CA erred
when it ruled that declaratory relief is the proper remedy given such a situation.
The appropriate remedy in the premises is certiorari and

prohibition. Department of Transportation et al. v. Philippine Petroleum Sea
Transport Association et al., enunciated that the power of judicial review
includes determining whether there has been grave abuse of discretion on the
part of any branch or instrumentality of the Government, which includes the
legislative assembly of a local government unit. Further:
There is a grave abuse of discretion when there is patent violation

of the Constitution, the law, or existing jurisprudence. On this
score, it has been ruled that "the remedies of certiorari and
prohibition are necessarily broader in scope and reach, and the writ
of certiorari or prohibition may be issued to correct errors of
jurisdiction committed not only by a tribunal, corporation, board or
officer exercising judicial, quasi-judicial or ministerial functions, but
also to set right, undo[,] and restrain any act of grave abuse of
discretion amounting to lack or excess of jurisdiction by any branch
or instrumentality of the Government, even if the latter does not
exercise judicial, quasi-judicial or ministerial functions." Thus,
petitions for certiorari and prohibition are the proper remedies
where an action of the legislative branch is seriously alleged to have
infringed the Constitution. (emphasis added)
No.
Clearly, for the operative fact doctrine to apply, there must be a "legislative
or executive measure," meaning a law or executive issuance, that is invalidated
by the court. From the passage of such law or promulgation of such executive issuance
until its invalidation by the court, the effects of the law or executive issuance, when
relied upon by the public in good faith, may have to be recognized as valid. x x x
(Emphasis supplied)
The operative fact doctrine does not apply here because:
One. This doctrine was not raised by any party at any time the instant case
was before the trial court and before us. Hence, as to this doctrine, the parties
have not been heard. It would not be fair to prejudice any of them on a point that
neither has argued. Besides, Section 8, Rule 51, in relation to Section 4 of Rule 56,
Rules of Court, precludes us from deciding a case on the basis of an alleged error
that the parties have not raised before the Court.
Two. There was no reliance by the public in good faith upon the
Municipal Ordinance. In fact, the public was upfront in challenging the
validity of the Municipal Ordinance. There were no public beneficiaries of the
Municipal Ordinance at least none that we know of, precisely because the
doctrine was not raised and argued by any of the parties. Further, it cannot be
said that the assailed effect of the Municipal Ordinance - collection of fines -
cannot be undone. The fines can in fact be restored to the respondent. No one
has come forward to argue that the fines can no longer be refunded because,
for example, the Municipality has become bankrupt. The fines to be reimbursed
to the respondent are in the form of fungible goods that can be satisfied by any
other collection of money in the amount collected. There is also no inequity or
injustice that would arise from the refund of the fines. To be sure, the converse is
true. It would be iniquitous and unjust to deny respondent the refund of the
moneys he had paid under protest pursuant to an illegal exaction when (i) the
Municipality had then and has now neither the authority nor the right to get the
money from him, and (ii) in similar situations in the past, the Court has
consistently decreed the refund of illegal collections, and therefore, in the
process, treat respondent differently from similarly situated members of the
public.
ACCORDINGLY, the petition for review on certiorari is DENIED. The

Decision dated January 20, 2016 and the Omnibus Order dated May 15, 2017 of
the Regional Trial Court-Branch 39, Polomolok, South Cotabato, in Special Civil
Action No. 104-14 are AFFIRMED with MODIFICATON. The order for
petitioner Municipality of Tupi to refund all fines collected from motorists other
than respondent Herminio B. Faustino is DELETED.

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MUNICIPALITY OF TUPI, REPRESENTED BY ITS MUNICIPAL MAYOR

REYNALDO S. TAMAYO, JR., PETITIONER, v. HERMINIO B. FAUSTINO

Faustino filed before the RTC, a petition for declaratory relief, annulment of

Respondent averred that the Ordinance was unconstitutional because it

a. Declaratory relief no longer viable

SECTION 1. Who may file petition. - Any person interested under a

An action for declaratory relief presupposes that there has been no

The appropriate remedy in the premises is certiorari and

There is a grave abuse of discretion when there is patent violation

The operative fact doctrine does not apply here because:

ACCORDINGLY, the petition for review on certiorari is DENIED. The

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