ATTY. JESUS B. DOQUE, IV Director- Legal Service DILG Central Office
Dear Dir. Doque,
This level was sought for an opinion regarding the invalidity of some portions of Revised Revenue Code of San Simon, Pampanga, particularly, Sec. 3U.01 and Sec. 3U.02, as declared by Regional Trial Court, Third Judicial Region, Branch 54, Macabebe, Pampanga, in Civil Case No. 10-1572(M).
We rendered an opinion regarding said matter, hereunto attached for further comment and recommendation by your level.
Aside from the said query, said LGU seeks enlightenment on the merit of collecting fees from haulers and truckers which are actually doing business in their municipality and not merely passing thru their roads or streets.
In our conversation, said LGU seeks guidance whether or not they may impose fees or charges to those truckers or haulers, whose main office/s are not within the jurisdiction of San Simon, but are hauling and unloading goods within their municipality.
We are hoping for your opinion for our guidance.
Our warmest regards and thanks.
Very truly yours,
(sgd.) FLORIDA M. DIJAN, DPA, CESO IV Regional Director
Copy Furnished:
Hon. LEONORA C. WONG PD ANGELINA S. BLANCO Municipal Mayor Provincial Director San Simon, Pampanga DILG Pampanga
HON. MICHAEL L. GALANG HON. ARMANDO S. MANACMUL Sangguniang Bayan Members Floridablanca, Pampanga
Dear Messrs. Galang and Manacmul,
This pertains to your letter seeking our legal opinion on the following issues:
If the Municipal Government still have the right to amend the deed of donation which was already binded(sic) by agreement of both parties.
If the amendments still needs(sic) legislative action, since the full authority was given to the representative of the Municipal Government in donating the Land of Floridablanca East Central School under Sangguniang Bayan Resolution No. 37 Series of 2005.
If there are legal basis for the action to be taken regarding the said issues.
We deem it proper to address your query in one discussion for they are interrelated.
Donation is an act of liberality whereby a person disposes gratuitously of a thing or right in favor of another, who accepts it. This donation is but a contract of the donor and the donee, a gratuitous contract wherein the consideration thereof is “liberality”.
The two (2) basic classifications of donations are Mortis Causa and Inter Vivos. The former shall take effect during the lifetime of the donor, but the property shall not be delivered till after death of the donor’s death. On the other hand, inter vivos donation takes effect immediately after compliance of all the legal requirements provided by the Code. Further, donation is not obligatory. What it requires is mere acceptance of the donee and once accepted, the donee becomes the absolute owner of the property so donated. Said kind of donation, however, is true only in case of simple or unconditional donation.
In the present query, the one who donated the said property in favor to the “School” is the Municipality of Floridablanca, Pampanga by virtue of Sangguniang Bayan Resolution No. 37, series of 2005. This, to our opinion, is a valid transfer of property from the said municipality in favor to the school, provided, no favor from the donee Is requested by the donor, lest, it would be tantamount to a violation of the Anti Graft Law or RA 3019 and/or RA 6713, or the Code of Ethical Standards of Public Officers and Employees.
For purposes of discussion, one of the legal and binding effects of donation is the transfer of ownership from the donor to the donee. As provided by the New Civil Code, it one of the modes of acquiring ownership. Further, one of the essential characteristics of donation is “irrevocability” except for legal causes provided by the same Code. This simply means that donation partakes the nature of permanency, unless, there exists ground for it to be revoked. The legal grounds for revocation of donation are stated under Art. 760 of the New Civil Code i.e., Birth, Adoption and Reappearance.
In your letter, you are seeking advice whether or not your august body may enact an Ordinance to amend an Ordinance enacted by the previous administration authorizing the then Mayor to enter into a Deed of Donation. It is true that the power to enact an Ordinance carries with the power to modify, alter, revise, or even repeal it. However, in the given situation, the donation, apparently was not only perfected but accorded the status of permanency, the same not being questioned at the lapse of more than four (4) years. In effect, not only concerned parties are bound to observe it but also third persons who might have a claim over that property, such as colorable title to that realty. It is clear, however, from the letter of the incumbent Mayor, that the intended beneficiary is a “caretaker”, which means, he (icban) recognizes ownership of the landlord (school). He is residing in that property precisely due to mere tolerance by the administrator of that school. Possession, by mere tolerance of the owner, cannot ripen into “Just Ownership” save those cases of a tenant of an agricultural land.
Another reason why said contract could no longer be amended is that the present Sangguniang Bayan Members and the Local Chief Executive would be violating the “non-impairment clause” of the 1987 Philippine Constitution. It must be noted that rights were already vested to the donee upon acceptance of the instrument. Such right cannot be diminished nor taken away by expedient means of enacting another ordinance or resolution for purposes of amending the Deed of Donation executed by and between the previous administration and the donee. Amending of an ordinance or resolution may only be allowed if there are valid and legal grounds.
Thus, the query whether or not the Sangguniang Bayan of Floridablanca still have the right to amend the deed of donation by passing a resolution to that effect, we opine in the negative, by reason of the above discussion. In addition to the above-stated reasons, to allow said means would set precedence to the coming administration i.e., to set the trend of revoking an ordinance which affects vested rights
However, we are recommending two (2) plausible suggestions in order to arrive at a win-win solution (the awarding of 500 sq m2) without recourse to toxic court litigation: first, for the present administration to have an audience with the School’s representative and the intended beneficiary to persuade the former to execute another deed of donation; and second, if the new owner is willing, to execute a deed of sale in favor of the intended beneficiary at a minimal amount or a lease to own. In both instances, the consideration must be the length of service rendered by the intended beneficiary to the school. A diplomatic approach, to our mind will work; thus, an intervention by the present administration may be needed.
This is without prejudice to any other opinion of higher authorities.
We hope that we have properly addressed your concerns.
Very truly yours,
(sgd.) FLORIDA M. DIJAN, DPA, CESO IV Regional Director
Copy Furnished:
PD Angelina S. Blanco LGOO V Norma D. Martinez DILG Pampanga DILG Floridablanca, Pampanga
This pertains to your letter seeking our legal opinion regarding the request for leave of SAngguniang Barangay Member Ryan G. Timbang of Brgy. San Joaquin, Mabalacat, Pampanga.
Per your representation, SB Member Timbang only served two and a half (2-1/2) months when he applied for leave of absence for three (3) months (15 Mar. – 15 June 2011) because he went abroad. On 16 June 2011, he extended his leave for another six (6) months. Punong Barangay Rafael G. Pascual granted both applications.
After the lapse of said leave of absences, SBM Timbang would like to request for another three (3) months extension of leave. This time, the application is still pending approval by PB Rafael.
In DILG Opinion No. 27, series of 2009, this Department opined that Sec. 47 of R.A. 7160 and Art. 84 of its Implementing Rules and Regulations are still governing rule pertaining to the filing of leave of absences of the members of the sanggunian, except the Barangays.
However, Memorandum Circular No. 2001-52 re: Rules and Regulations Governing the Foreign Travel of Local Government Officials and Employees (08 May 2001); MC No. 2006-22 re: Amending MC 2001-52 dated 08 May 2001, entitled, Rules and Regulations Governing Foreign Travel of Local Government Officials and Employees (06 May 2006); and MC No. 2006-163 re Foreign Travel of Local Government Officials and Employees (30 November 2006) are guidance for the application and approval of application for leave of absences. Based on these issuances, if the sanggunian member intends to pursue a personal or private trip that does not extend to more than three (3) months, or when such trip is to be undertaken during a period where there is no emergency or crisis, said sanggunian member shall notify the concerned Local Chief Executive in writing, with the duly accomplished leave application filed for the approval, or other appropriate action of the Local Chief Executive. In the event that the leave application is approved, the said approved leave application shall serve as the Travel Authorization relative to such personal or private trip. Before leaving, said sanggunian member shall also notify his sanggunian.
On the other hand, if the period of personal or private trip of the sanggunian member extends to more than three (3) months, or during a period of emergency or crisis, a travel authority from the Honorable Secretary of the Interior and Local Government is required.
It is also worthy to note that in reviewing the leave of absence to pursue a personal or private trip, all concerned local authorities are enjoined to see to it that: (a) the performance or delivery of local governmental functions and services is not prejudiced by the absence of the concerned personnel; and (b) all clearances as may be required by law, public policy or local rules and regulations are complied with.
Whether SB member Timbang is still entitled for another extension may be best determined by the concerned Punong Barangay. It is the PB who is in the best position to determine whether or not the applicant deserves another extension. However, the Punong Barangay may not outrightly remove the absentee Sangguniang Barangay Member or have his name dropped from the payroll as this would be tantamount to removal from office without due process.
However, it is evident that SB Member Timbang has no available leave credits. It is therefore reasonable for the Punong Barangay to ask the applicant to file his resignation as he can no longer perform his functions and duties as Sangguniang Barangay Member. The protracted absence of SB Member Timbang is prejudicial to their constituents for being deprived of the services expected from a public servant they chose.
Hope this resolves your concern.
Very truly yours,
(sgd.) FLORIDA M. DIJAN, DPA, CESO IV Regional Director
