Celestino v. Limkakeng, Sr.

THIRD DIVISION

[G.R. No. 193390. November 24, 2021.]

ELI CELESTINO, PUBLIO BRIONES, MARIANO FLORIDO, JR., SAMUEL DY, HENRY UY, BERNARDITO FLORIDO, BEETHOVEN DELIARTE, IN THEIR OWN BEHALF AND IN BEHALF OF ALL MEMBERS OF LIMKAKENG SUBDIVISION HOMEOWNERS ASSOCIATION, petitioners,vs. ISHMAEL LIMKAKENG, SR., JOSEFA LIMKAKENG, ERNESTO LIMKAKENG, ISHMAEL LIMKAKENG, JR., ALEXANDER LIMKAKENG, AND BANAWA DEVELOPMENT COMPANY, respondents.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, Third Division, issued a Resolution datedNovember 24, 2021, which reads as follows:

"G.R. No. 193390 (Eli Celestino, Publio Briones, Mariano Florido, Jr., Samuel Dy, Henry Uy, Bernardito Florido, Beethoven Deliarte, in their own behalf and in behalf of all members of Limkakeng Subdivision Homeowners Association v. Ishmael Limkakeng, Sr., Josefa Limkakeng, Ernesto Limkakeng, Ishmael Limkakeng, Jr., Alexander Limkakeng, and Banawa Development Company). — The Court resolves to NOTE the Letter dated July 16, 2021 of Atty. John Philipps M. Reposo, counsel for respondents, requesting a copy of the petition for review on certiorari as well as the other submissions of the parties or records of this case for their file.

Before this Court is a Petition for Review on Certiorari1 under Rule 45 of the Rules of Court (Rules), assailing the Decision 2 dated June 4, 2009 and Resolution 3 dated July 29, 2010 of the Court of Appeals (CA) in CA-G.R. SP No. 82396.

Antecedents

Petitioners Eli Celestino, Publio Briones, Mariano Florido, Jr., Samuel Dy, Henry Uy, Bernardito Florida, Beethoven Deliarte (petitioners) are lot owners in Limkakeng Subdivision, also known as Horseshoe Hills Subdivision, located in Banawa, Cebu City. On February 6, 1989, they instituted a complaint for specific performance, damages and injunction before the Housing and Land Use Regulatory Board (HLURB) against respondents Ishmael Limkakeng, Sr. (Ishmael, Sr.), Josefa Limkakeng (Josefa), Ernesto Limkakeng (Ernesto), Ishmael Limkakeng, Jr. (Ishmael, Jr.), Alexander Limkakeng (Alexander), and Banawa Development Company (Banawa) (respondents). 4

In their amended complaint, 5 petitioners alleged that respondents violated Presidential Decree (PD) Nos. 957, 1216, 1344, and other related laws and ordinances by: (1) failing or refusing to perform their obligation as owners, developers and sellers of the subdivision; (2) denying petitioners' demand for park, playground, and open space centrally located; (3) providing substandard and dilapidated roads as well as inadequate and incomplete drainage facilities; and (4) failing to make a provision for sidewalks along the subdivision. 6 Petitioners prayed that respondents be ordered: (1) to convey to the City of Cebu and/or to petitioners or its homeowners' association an area for open space, park, and playground; (2) to provide and maintain adequate drainage, lighting, sewerage, and water facilities; and (3) to pay petitioners moral damages, exemplary damages, attorney's fees, and litigation expenses. 7

Respondents Ishmael, Jr. and Banawa moved that they be dropped as respondents for not being real-parties-in-interest. 8 The motion was denied in an Order 9 dated March 22, 1989. CAIHTE

In their Answer with Counterclaim, 10 respondents Ishmael Sr., Josefa, and Ernesto argued that the lots were subdivided and sold before the effectivity of the laws and all roads, parks, playgrounds and/or open spaces were duly provided in accordance with the requirements at the time they were sold. 11 They averred that the roads, lighting, and drainage system were finished and functioning before the project was done. They also clarified that the roads were donated to the City of Cebu on July 17, 1983 and the open spaces were turned into a basketball court, chapel and/or church ground. 12

In the Answer with Counterclaim 13 of Ishmael, Jr. and Banawa, they denied the allegations against them and insisted that they are not, in any capacity, connected with the subdivision business of Ishmael, Sr. and Ernesto. Ishmael, Jr. added that he does not own any parcel of land within the subdivision except the residential lot where his house stands. Banawa averred that it is not the owner and seller of any parcel of land within the subdivision. 14 They prayed for the payment of moral damages, attorney's fees and litigation expenses by way of counterclaim. 15

Ruling of the HLURB Arbiter

On August 28, 1991, the HLURB Arbiter rendered its Decision, 16 the dispositive portion of which reads:

WHEREFORE, in view or the foregoing considerations, respondents Ishmael Limkakeng Sr., Josefa Limkakeng, Ernesto Limkakeng and the Banawa Development Corporation or Company are, jointly and severally hereby ORDERED. —

1.) to segregate Lots 6082-A-5-B-1, 6082-A-5-B-2, 6082-A-5-B-3, 6082-A-5-B-4, 6000-F and 6000-G (as appearing in Exhibit "2") of the Limkakeng Subdivision, also known as Horseshoe Hills Subdivision, in Banawa Cebu City and reserve the same as the subdivision open spaces within one (1) month from receipt hereof after which this Office will inspect and certify their reservation;

2.) to donate the lots thus certified to the City of Cebu or to the Horseshoe Hill Homeowners' Association, as the case may be, within one (1) month after said certification is obtained from this Board;

3.) to develop and/or maintain the subdivision roads along Morgan, Cleveland, Quarter, Red Horse, Palomino, Welch and Shire Streets of the subdivision and, where practicable, to provide the sidewalks there along, all within six (6) months from receipt hereof;

4.) to provide an underground drainage system along the aforementioned streets also within six (6) months from receipt hereof;

5.) to provide an adequate water distribution system in the subdivision on the basis of its density of 35.6 household per gross hectare by initiating the necessary presentation with the Metro Cebu Water District within two (2) months from receipt hereof;

Further, respondent Ishmael Limkakeng, Sr. is hereby ORDERED to have the lot described under TCT No. 49588 released fully from mortgage with the Philippine National Bank within two (2) months from receipt hereof, if the same is not yet released.

Complainants' and counterclaimants' claims for damages and attorney's fees are dismissed both for lack of merit.

Likewise, the complaint against Ishmael Limkakeng, Jr. and Alexander Limkakeng is hereby dismissed.

Without cost.

IT IS SO ORDERED. 17

The HLURB Arbiter held that the provisions in P.D. No. 957 and 1216 pertaining to open spaces, parks, and playgrounds should not be applied retroactively. 18 The HLURB Arbiter found nothing irregular when respondents piecemealed the development of the project to 10 subdivision plans. It was pointed out that prior to the enactment of P.D. No. 957 and 1216, no law, rule or regulation penalized the act of piecemealing subdivision projects. Instead, subdivision projects were governed by the rules provided by the National Urban Planning Commission and/or by the local government concerned. 19

With regard to the subdivision plans piecemealed after P.D. No. 957 took effect with a total area of 17,401 square meters (sqm), the HLURB Arbiter declared that the required allocation of 7% of the plan's gross area (or 1,218 sqm) was complied with. It was highlighted that respondents already reserved 1,553 sqm, consisting of Lots 6000-F and 6000-G, which is more than the requirement.

Nonetheless, invoking the principle of equity, the HLURB Arbiter ruled that respondents should fulfil their undertaking to provide Lot Nos. 6082-A-5-B-1, 6082-A-5-B-2, 6082-A-5-B-3, and 6082-A-5-B-4. These additional open spaces are based on the affidavit of Ishmael, Sr. wherein he undertook to allocate said lots as open space. 20 Thus, Ishmael, Sr., Josefa, Ernesto, and Banawa were ordered to segregate Lots 6082-A-5-B-1, 6082A-5-B-2, 6082-A-5-B-3, 6082-A-5-B-4, 6000-F and 6000-G and reserve the same as the open spaces within one month from receipt of the Decision after which the HLURB will inspect and certify their reservation. They were also ordered to donate the lots certified to the City of Cebu or to Horseshoe Hill Homeowners' Association, as the case may be, within one month after said certification is obtained from this Board. 21

The HLURB Arbiter refused to take cognizance of any ordinance not specifically put in evidence. 22 DETACa

The HLURB Arbiter also refrained from resolving the issue on the propriety of the donation of 1,500 sqm in favor of the Archdiocese of Cebu. It was explained that there is no documentary nor testimonial evidence to prove that the donation was made after P.D. No. 957 took effect and that the supposed donee accepted the donation. 23

As to the 1,000 sqm presently used as a church site, the HLURB Arbiter considered it an allocation for open space. 24

With regard to the maintenance of the subdivision roads, the HLURB Arbiter held that the donation of these roads in 1983 in favor of the City of Cebu did not relieve respondents of their obligation to maintain them. The HLURB Arbiter points out that respondents failed to secure a Certificate of Completion (COC) from the HLURB before the donation was made in favor of the local government, in violation of Section 8, Rule IV of the Human Settlements Regulatory Commission (HSRC) Administrative Order (AO) No. 82-01, s. 1982. 25 Also, it was ruled that the drainage system should be built under the subdivision roads. 26 Accordingly, the HLURB Arbiter directed respondents Ishmael, Sr., Josefa, Ernesto, and Banawa to develop the subdivision roads, to provide sidewalk, and to maintain an adequate drainage system within six months from receipt of the Decision. 27

As for the road lots covered by TCT Nos. 47478, 48040, and 49588 that were partially mortgaged to Philippine National Bank, the HLURB was convinced that only TCT No. 49588 included road lots that were supposedly donated to the City of Cebu. TCT Nos. 47478 and 48040 are not road lots donated to the City of Cebu. Thus, HLURB ordered Ishmael, Sr. to fully release the mortgage thereon. 28

The HLURB Arbiter also found the present water system inadequate to meet the needs of the residents. 29 Therefore, an adequate water system was ordered to be provided by respondents Ishmael, Sr., Josefa, Ernesto and Banawa.

Finally, the HLURB Arbiter declared that there is insufficient evidence to conclude that individual respondents Alexander and Ishmael, Jr. are engaged in a real estate business. It was emphasized that ownership, without any other proof, is insufficient to consider them engaged in a real estate business. Thus, only Ishmael, Sr., Josefa, Ernesto, and Banawa were held solidarily liable. 30

Ruling of the HLURB Board of Commissioners

On June 13, 1994, the HLURB Board of Commissioners (HLURB Board) issued its Decision, 31 the dispositive portion of which states:

WHEREFORE, premises considered, the Arbiter a quo's decision dated 28 August 1991 is hereby SET ASIDE and a new one entered the dispositive portion of which reads as follows:

"WHEREFORE, respondent Ishmael Limkakeng, Sr. is hereby directed to secure the full release of the mortgage constituted over TCT No. 49588 within two (2) months from finality of this decision.

Complainants and counterclaimant's claims for damages and attorney's fees are both dismissed for lack of merit.

Finally, the complaint against Ishmael Limkakeng, Jr., Alexander Limkakeng, Josefa Limkakeng, Ernesto Limkakeng and the Banawa Development Company is hereby dismissed.

Without costs."

SO ORDERED.32

The HLURB Board ruled that petitioners' prayer for additional open space is without merit. The HLURB Board agreed with the HLURB Arbiter's finding that the 13 simple division plans for Limkakeng/Horseshoe Hills Subdivision when taken together, have a total area of 17,401 sqm. In concluding that there is no need to reserve more area for open space, the HLURB Board explained that since the subdivision has a density of 35.63 family lots per gross hectare, 7% of the project, or 1,218 sqm should be kept as open space. For the HLURB Board, there is no need to reserve Lots 6082-A-5-B-1, 6082-A-5-B-2, 6082-A-5-B-3, and 6082-A-5-B-4 as open space since Lots 6000-F and 6000-G, which have a combine area of 1,553 sqm, were already enough to comply with the 1,218 sqm open space requirement. 33

The HLURB Board also held that petitioners failed to present sufficient proof to show that Ishmael, Jr. and Alexander are engaged in a real estate business. 34

With regard to the subdivision roads, the HLURB Board stated that respondents' failure to secure a COC was cured by the actual assumption of responsibilities by the City of Cebu. For the HLURB Board, equity dictates that respondents be absolved from the obligation to maintain the subdivision roads. 35

Lastly, it was ruled that there is no basis to hold Banawa liable since its property, Lot 6426-B-1, is not located within Limkakeng/Horseshoe Hills Subdivision. 36

Aggrieved, petitioners filed their Motion for Reconsideration 37 with the Office of the President (OP). aDSIHc

Ruling of the Office of the President

In a Decision 38 dated June 10, 2003, the OP affirmed the ruling of the HLURB Board. Petitioners filed a Motion for Reconsideration 39 which was denied in an Order 40 dated December 17, 2003.

Ruling of the Court of Appeals

On June 4, 2009, the CA rendered its Decision, 41 the dispositive portion of which states:

WHEREFORE, premises considered, the instant Petition is hereby DENIED. The assailed Decision dated 10 June 2003 of the Office of the President in O.P. Case No. 5946 is hereby AFFIRMED IN TOTO.

No costs.

SO ORDERED. 42

The CA declared that only the gross area of the property developed after the effectivity of P.D. No. 917 and P.D. No. 1216 may be considered in computing the open space required to be provided. The CA agreed with the HLURB's ruling that the subdivision consists of 13 simple subdivision plans or a total a gross area of 17,401 square meters for purposes of P.D 957 and P.D 1216, the application of which cannot retroact to those portions of the subdivision project that had been piecemealed, developed and sold prior to the effectivity of said laws. 43

The CA did not take judicial notice of local ordinances allegedly requiring more open space as these were not offered and pleaded during trial. 44

In finding that there was substantial compliance with the open space requirement under paragraph (b), Section 31 of P.D. No. 1216, 45 the CA explained that it is undisputed that the subject subdivision has a density of 35.63 family lots per gross hectare. This means that 7% of the gross area of 17,401 sqm or 1,218 sqm are required to be reserved for parks, playgrounds, and recreational use. 46

With regard to the alleged representation of Ishmae1, Sr. that Lot Nos. 6082-A-5-B-1, 6082-A-5-B-2, 6082-A-5-B-3, and 6082-A-5-B-4 are to be reserved for open space, the CA held that the construction of a church or a place of worship is within the purview of the definition of open space. The CA added that these lots are no longer necessary as there is an adequate space reserved for parks and playground in the subdivision, particularly Lot Nos. 6000-F and 6000-G which have a combined area of 1,553 square meters. 47 Pursuant to the Implementing Rules and Regulations of P.D. No. 957, these open spaces are not required to be centrally located within the subdivision. 48

The CA also opined that the donation of the subject road lots to the City of Cebu cannot be invalidated due to the failure to secure a COC from HLURB. For the CA, this is a mere formal and procedural requisite, the lack of it, though not encouraged, cannot overturn substantive and vested rights. This makes the City of Cebu, as donee, responsible for the road lots' maintenance.

In a Resolution 49 dated July 29, 2010, the CA denied the Motion for Reconsideration of petitioners. 50

In the present petition, 51 petitioners invoke the ruling of the Court in Eugenio v. Drilon52 in insisting that P.D. No. 957 should be applied retroactively. 53 They also maintain that the parcels of land were sold after 1976, or when P.D. No. 957 was already in effect. They also insist that the Court should take judicial notice of the ordinances of the City of Cebu since these were pleaded and proved at the arbitration leve1. 54 Petitioners posit that respondents are required to reserve 30% of their gross area of development for open spaces pursuant to P.D. No. 957 or not less than 5,000 square meters in open as mandated by Ordinance No. 428 of the City of Cebu which took effect on October 31, 1963. 55 Petitioners also point out that the CA erred in discharging respondents, particularly Ishmael, Sr., from their undertaking to provide Lot Nos. 60821-A-5-B-1, 6802-A-5-B-2, 6802-A-5-B-3, and 6082-A-5-B-4 as open space despite Ishmael, Sr.'s affidavit recognizing this undertaking. 56 Petitioners argue that respondents should not have donated lots to the Archdiocese of Cebu as it is contrary to the express mandate of Section 21, P.D. No. 957, 57 as amended, which requires that the open space should be donated to "the city or municipality x x x, provided, however that the parks and playgrounds may be donated to the homeowners' association of the project with the consent of the city or municipality concerned." Respondents also point out that the donation was onerous because it was made in exchange for a chapel built by the Roman Catholic faithful. The other consideration of said donation was the payment by the Archdiocese of the other half area used by the church. Moreover, the titles to these lots are still in the name of respondents Ishmael, Sr. and Josefina. These lots should have been non-buildable and non-alienable. 58

Petitioners also aver that the subdivision roads cannot be donated to the City of Cebu without first securing the necessary COC as required by P.D. No. 957 and P.D. No. 1216. For petitioners, the donation cannot be given any legal effect. At the very least it should not relieve respondents from their duty of maintaining the subject road lots. 59 Petitioners also highlight that the deed of donation of the lots to the City of Cebu is spurious because the transfer certificates of title showed that the owner is respondent Ernesto and not Ishmael, Sr., the donor. When the supposed donation was made to the City of Cebu in 1983, the other lots were owned by strangers while the other lots were owned by General Milling Corporation, respondent Ishmael, Jr., Spouses Vicente Perez and Suzana Zosa, Albino Gothong, Elena Chiongbian, and Juanita Enad. Also, they point out that the TCTs do not correspond to the road lots subject of the donation. 60

In their Comment, 61 respondents argue that P.D. No. 957, as amended by P.D. No. 1216 cannot be retroactively applied. 62 Respondents also insist that the arguments petitioners raised are factual matters which are not proper in a petition for review on certiorari under Rule 45 and that the findings of the HLURB, as affirmed by the OP and CA are binding to the Court. 63

In their Reply, 64 petitioners reiterate that the conflicting decisions of the HLURB Arbiter and the HLURB Board warrant a review of the factual issues of the case. 65 They argue that the retroactive application of P.D. No. 957 need not even be invoked because the parcels of land had been sold after 1976, based on respondents' judicial admissions and the evidence on record. By then, P.D. No. 957 had already taken effect. 66 They add that pursuant to Sections 20 and 21 of P.D. No. 957, it is incumbent upon the developer to provide 5,000 sqm open space even if the development is reckoned prior to 1976. They also maintain that even if P.D. No. 957 is not applied, Ordinance No. 428, which took effect on October 31, 1963, and Ordinance No. 684, which took effect on July 16, 1970, require open spaces equal to at least 5% of the total area. 67 They also stress that respondents undertook, at the HLURB level, to provide Lot Nos. 6082-A-5-B-1, 6082-A-5-B-2, 6082-A-5-B-4 as open spaces based on Ishmael, Sr.'s affidavit. 68

Issues

The issues to be resolved are:

1. Whether respondents have a legal obligation to maintain more area for open space, roads, sidewalks, drainage and lighting system, and water facilities to lots sold prior to the enactment of P.D. No. 957 and P.D. No. 1216;

2. Whether the Court may take judicial notice of local ordinances not pleaded and offered during trial to compel respondents to provide more open space; and

3. Whether respondents may be compelled to allocate Lot Nos. 6082-A-5-B-1, 6082-A-5-B-2, 6082-A-5-B-3, and 6082-A-5-B-4 based on the alleged representation of Ishmael, Sr., at the arbitration level.

Ruling of the Court

The petition lacks merit. ETHIDa

P.D. No. 957, as amended by P.D. No.

Section 31 of P.D. No. 957, as amended by P.D. No. 1216, states:

Section 31. Roads, Alleys, Sidewalks and Open Spaces. — The owner as developer of a subdivision shall provide adequate roads, alleys and sidewalks. For subdivision projects one (1) hectare or more, the owner or developer shall reserve thirty percent (30%) of the gross area for open space. Such open space shall have the following standards allocated exclusively for parks, playgrounds and recreational use:

a. 9% of gross area for high density or social housing (66 to 100 family lot per gross hectare).

b. 7% of gross area for medium-density or economic housing (21 to 65 family lot per gross hectare).

c. 3.5% of gross area low-density or open market housing (20 family lots and below per gross hectare).

These areas reserved for parks, playgrounds and recreational use shall be non-alienable public lands, and non-buildable. The plans of the subdivision project shall include tree planting on such parts of the subdivision as may be designated by the Authority.

Upon their completion as certified to by the Authority, the roads, alleys, sidewalks and playgrounds shall be donated by the owner or developer to the city or municipality and it shall be mandatory for the local governments to accept; provided, however, that the parks and playgrounds may be donated to the Homeowners Association of the project with the consent of the city or municipality concerned. No portion of the parks and playgrounds donated thereafter shall be converted to any other purpose or purposes. 69

The foregoing provision cannot be made the basis to require respondents to provide and maintain the open space demanded by petitioners.

In Duenas v. Santos Subdivision70 (Duenas) the Court held that:

x x x P.D. No. 957, as amended, cannot be applied retroactively in view of the absence of any express provision on its retroactive application. Thus:

. . . Article 4 of the Civil Code provides that laws shall have no retroactive effect, unless the contrary is provided. Thus, it is necessary that an express provision for its retroactive application must be made in the law. There being no such provision in both P.D. Nos. 957 and 1344, these decrees cannot be applied to a situation that occurred years before their promulgation x x x

At any rate, our principal concern in this case is Section 31 of P.D. No. 957, an amendment introduced by P.D. No. 1216. Properly, the question should focus on the retroactivity of P.D. No. 1216 and not P.D. No. 957 per se.

We have examined the text of P.D. No. 1216 and nowhere do we find any clause or provision expressly providing for its retroactive application. Basic is the rule that no statute, decree, ordinance, rule or regulation shall be given retrospective effect unless explicitly stated. Hence, there is no legal basis to hold that P.D. No. 1216 should apply retroactively. 71 (Emphases supplied)

Therefore, the CA was correct in holding that only the gross area of the property developed after the effectivity of P.D. No. 917 and P.D. No. 1216 may be considered in determining the open space required to be provided. The subdivision consists of 13 simple subdivision plans or a total gross area of 17,401. Square meters at the time P.D. No. 957 and P.D. No. 1216 took effect. The application of these statutes cannot be retroactively applied to those portions of the subdivision project that had been piecemealed, developed and sold prior to the effectivity of said laws. 72

The Court cannot accept the argument of petitioners that the ruling of this Court in Eugenio v. Drilon73(Eugenio) is applicable to the case in justifying their claim that P.D. No. 957 may be applied retroactively. Eugenio is not squarely applicable to the present case. As pointed in Duenas, the issue in Eugenio was the applicability of P.D. No. 957 to purchase agreements on lots entered into prior its enactment where there was non-payment of amortization, and failure to develop the subdivision. In contrast, in Duenas, among the primary issues resolved by the Court is the applicability of P.D. No. 957 to compel a developer to provide and maintain an open space for recreational and leisure purposes. To the Court's mind, the ruling in Duenas is more applicable to the present petition. cSEDTC

Accordingly, the CA correctly declared that only the gross area of the property developed after the effectivity of P.D. No. 917 and P.D. No. 1216 may be considered in determining the open space required in the subdivision. As determined by the CA and the HLURB, the subdivision consists of 13 simple subdivision plans or a total a gross area of 17,401 square meters for purposes of PD 957 and PD 1216, the application of which cannot retroact to those portions of the project that had been piecemealed, developed and sold prior to the effectivity of said laws. Respondents substantially complied with the open space requirement under paragraph (b), Section 31 of P.D. No. 1216. 74 It is undisputed that the subject subdivision has a density of 35.63 family lots per gross hectare. This means that 7% of the gross area or 1,218 square meters are already reserved for parks, playgrounds, and recreational use. 75 There is no need to reserve Lots 6082-A-5-B-1, 6082-A-5-B-2, 6082-A-5-B-3, and 6082-A-5-B-4 as open space since Lots 6000-F and 6000-G, which have a combined area of 1,553 sqm, were already enough to comply with the 1,218 sqm open space requirement. 76

It was proper for the CA not to take

Petitioners claim that the CA should have taken judicial notice of Ordinance No. 428, which took effect on October 31, 1963, and Ordinance No. 684, which took effect on July 16, 1970. They insist that the city ordinances were pleaded, proved, and brought to the attention of the HLURB Arbiter and the HLURB Board. Petitioners are mistaken.

Although courts are required to take judicial notice of laws enacted by Congress, the rule with respect to local ordinances is different. Ordinances are not included in the enumeration of matters covered by mandatory judicial notice. 77 Section 1, Rule 129 of the Rules of Court states:

Section 1. Judicial notice, when mandatory. — A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of the legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions. 78

The foregoing provision was amended in the 2019 Revised Rules on Evidence and now reads as follows:

Section 1. Judicial notice, when mandatory. — A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, official acts of the legislative, executive, and judicial departments of the National Government of the Philippines, the laws of nature, the measure of time, and the geographical divisions. (Underscoring supplied)

Under the old and new provision on mandatory judicial notice, it is clear that the Court did not intend to include ordinances among its enumeration. Clearly, the Court is not required to take judicial notice of ordinances cited in petitioners' pleadings.

The Court cannot simply rely on petitioners' claim of the existence and content of the subject ordinances and expect the Court to be knowledgeable about all ordinances issued. In Social Justice Society v. Atienza, Jr., G.R. No. 156052 (Resolution), 79 the Court explained that:

Even where there is a statute that requires a court to take judicial notice of municipal ordinances, a court is not required to take judicial notice of ordinances that are not before it and to which it does not have access. The party asking the court to take judicial notice is obligated to supply the court with the full text of the rules the party desires it to have notice of. Counsel should take the initiative in requesting that a trial court take judicial notice of an ordinance even where a statute requires courts to take judicial notice of local ordinances. SDAaTC

The intent of a Statute requiring a court to take judicial notice of a local ordinance is to remove any discretion a court might have in determining whether or not to take notice of an ordinance. Such a statute does not direct the court to act on its own in obtaining evidence for the record and a party must make the ordinance available to the court for it to take notice. 80 (Citations omitted, emphasis supplied)

In the present case, petitioners merely relied on piece-meal citations of the ordinances of the City of Cebu in their pleadings. They failed to furnish the Court the full text of these ordinances to verify their existence, contents, and the accuracy of the citations of petitioners in their pleadings. Thus, the CA was correct in not taking judicial notice of the ordinances.

The alleged undertaking of Ishmael,

With regard to the alleged representation of Ishmael, Sr. that Lot Nos. 6082-A-5-B-1, 6082-A-5-B-2, 6082-A-5-B-3, and 6082-A-5-B-4 are to be reserved for open space, the CA correctly held that, these lots are no longer necessary despite the alleged willingness of Ishmael, Sr. to reserve these lots as open space. There is an adequate space reserved for parks and playground in the subdivision, particularly Lot Nos. 6000-F and 6000-G which have a combined area of 1,553 square meters. 81 No copy of the alleged affidavit of Ishmael, Sr. was submitted to the Court. More importantly, Ishmael, Sr. had already passed away, 82 making it impossible for the supposed donor to dispute this affidavit or implement the transfer of the subject lots to petitioners or the homeowners' association.

The donation made in favor of the City

The Court agrees with the finding of the CA that the donation of the subject road lots to the City of Cebu cannot be invalidated simply because of the failure to secure a COC from the HLURB. This is a mere formal and procedural requisite, the lack of it, though not encouraged, cannot overturn substantive and vested rights. Therefore, it is the City of Cebu, as donee, who is responsible for the maintenance of the subject subdivision roads which include providing adequate drainage, lighting, sewerage, and water facilities in the donated road lots.

Petitioners failed to establish that

Lastly, the Court concurs with the CA in ruling that there is insufficient proof to hold Ishmael, Jr. and Alexander liable as real estate developers. A real estate developer "refers to any natural or juridical person engaged in the business of developing real estate development project for his/her or its own account and offering them for sale or lease." 83 The law contemplates not simply a person who owns and sells real estate, there must be an intent to engage in the business of developing real estate projects. Not all property owners who sell or lease their property may be considered engaged in the real estate business. Real estate developers hold properties as ordinary assets since they are included in their inventory. 84 It is a cardinal rule that he who alleges a fact has the burden of proving it and a mere allegation is not evidence. In this case, petitioners failed to present adequate proof to establish that Ishmael, Jr. and Alexander are engaged in the real estate business.

WHEREFORE, the petition is DENIED.

SO ORDERED." (Zalameda. J., no part; Dimaampao, J., designated as additional Member of the Third Division.)

By authority of the Court:

MISAEL DOMINGO C. BATTUNG IIIDivision Clerk of Court

By:

(SGD.) RUMAR D. PASIONDeputy Division Clerk of Court

Footnotes

1.Rollo, pp. 1-31.

2. Penned by Associate Justice Rodil V. Zalameda (now a Member of this Court), with the concurrence of Associate Justices Francisco P. Acosta and Amy C. Lazaro-Javier (now a Member of this Court); id. at 102-116.

3. Penned by Associate Justice Ramon A. Cruz with the concurrence of Associate Justices Pampio A. Abarintos and Myra V. Garcia-Fernandez; id. at 131-132.

4.Id. at 34-44.

5.Id. at 40-44.

6.Id. at 41-42.

7.Id. at 43-44.

8.Id. at 46-48.

9. Penned by Housing and Land Use Arbiter Gonzalo, CH. Tumulak; id. at 49.

10.Id. at 54-57.

11.Id. at 55.

12.Id. at 55-56.

13.Id. at 50-52.

14.Id. at 51.

15.Id. at 52-53.

16. Penned by Housing and Land Use Arbiter Gonzalo CH. Tumulak; id. at 58-74.

17.Id. at 73-74.

18.Id. at 64-65.

19.Id.

20.Id. at 66.

21.Id. at 73.

22.Id. at 66.

23.Id. at 67.

24.Id.

25. Section 8, Rule IV of the Human Settlements Regulatory Commission Administrative Order No. 82-01, series of 1982 states:

RULE IV

Effects of Donation of Road Lots/Open Space

Section 8. Right of Grantee to Donate Road Lots and Open Space. — Any person who is able to secure a Certificate of Completion from the Commission shall have the right to donate the road lots and open space to the City/Municipality concerned, provided that the parks, playgrounds and recreational use may be donated to the Homeowners Association of the subdivision with the consent of the City/Municipality concerned.

26.Rollo, p. 70.

27.Id. at 74.

28.Id. at 71-72.

29.Id. at 71.

30.Id. at 72-74.

31. Penned by Commissioner Ernesto C. Mendiola, with Commissioners Joel L. Altea and Luis T. Tungpalan; id. at 77-83, 85-91.

32.Id. at 83.

33.Id. at 80-81.

34.Id. at 81.

35.Id. at 82.

36.Id. at 82-83.

37.Id. at 92-98.

38. Penned by Senior Deputy Executive Waldo Q. Flores; id. at 84, 100.

39.Id. at 92-98.

40. Penned by Senior Deputy Executive Secretary Waldo Q. Flores; id. at 100.

41.Supra note 2.

42.Rollo, p. 116.

43.Id. at 110.

44.Id.

45. Section 31 of P.D. No. 1216 states:

Section 31. Roads, Alleys, Sidewalks and Open Spaces. — The issuer as developer or a subdivision shall provide adequate roads, alleys and sidewalks. For subdivision projects one (1) hectare or more, the owner or developer shall reserve thirty percent (30%) of the gross area for open space. Such open space shall have the following standards allocated exclusively for parks, playgrounds and recreational use:

a. 9% of gross area the high density or social housing (66 to 100 family lot per gross hectare).

b. 7% of gross area for medium-density or economic housing (21 to 65 family lot per gross hectare).

46.Rollo, pp. 112-113.

47.Id. at 113.

48.Id. at 114.

49.Supra note 3.

50.Rollo, p. 132.

51.Id. at 1-31.

52. 322 Phil. 112 (1996).

53.Rollo, pp. 11-15.

54.Id. at 15-17.

55.Id. at 18-19.

56.Id. at 20

57. Section 21, P.D. No. 957 states:

Section 21. Sales Prior to Decree. — In cases of subdivision lots or condominium units sold or disposed of prior to the effectivity of this Decree, it shall be incumbent upon the owner or developer of the subdivision or condominium project to complete compliance with his or its obligations as provided in the preceding section within two years from the date of this Decree unless otherwise extended by the Authority or unless an adequate performance bond is filed in accordance with Section 6 hereof.

58.Rollo, p. 21.

59.Id. at 22-23.

60.Id. at 23-24.

61.Id. at 146-166.

62.Id. at 155-157.

63.Id. at 158-166.

64.Id. at 171-174, 178-187.

65.Id. at 171-172.

66.Id. at 183-184.

67.Id. at 184.

68.Id. at 185.

69. Amending Section 31 of P.D No. 957 Re: Requiring Subdivision Owners to Provide Routs, etc., Presidential Decree No. 1216, October 14, 1977.

70. 474 Phil. 834 (2004).

71.Id. at 848.

72.Rollo, p. 110.

73.Supra note 52.

74. Section 31 of P.D. No. 1216 states:

Section 31. Roads, Alleys, Sidewalks and Open Spaces. — The owner as developer of a subdivision shall provide adequate roads, alleys and sidewalks. For subdivision projects one (1) hectare or more, the owner or developer shall reserve thirty percent (30%) of the gross area for open space. Such open space shall have the following standards allocated exclusively for parks, playgrounds and recreational use:

a. 9% of gross area for high density or social housing (66 to 100 family lot per gross hectare).

b. 7% of gross area for medium-density or economic housing (21 to 65 family lot per gross hectare).

75.Rollo, pp, 112-113.

76.Id. at 80-81.

77.Social Justice Society v. Atienza, Jr., 568 Phil. 658 (2008).

78. Section 1, Rule 129 of the Rules of Court.

79.Supra note 77.

80.Id.

81.Rollo, p. 113.

82.Id. at 147.

83. Paragraph (e), Section 3, R.A. No. 9646.

84. Section 3 (a), BIR Revenue Regulations No. 7-2003, December 27, 2002.