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Wednesday, November 07, 2007
Businessman suffers court setback
By Karlon N. Rama
CEBU CITY -- Businessman Efrain Pelaez Jr. got a writ of preliminary injunction that stops the Lapu-Lapu City Government from demolishing any of his establishments in the city.
However, the four-page ruling signed by Regional Trial Court (RTC) Branch 21 Judge Toribio Quiwag covers only the demolition and is silent on whether City Hall can continue to issue and enforce notices of closure against Pelaez’s businesses.
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While the ruling, dated October 27 and released only Tuesday, also prohibits “committing any and all acts prayed for by the plaintiffs in their complaint,” an earlier order, dated October 25, acknowledged that the RTC “cannot go beyond” what was originally asked for in the complaint.
Based on court records, Pelaez’s legal group, headed by veteran lawyer Bernardito Florido, didn’t include coverage against closure orders in their original injunction suit.
In fact, the October 25 order was an offshoot of Florido’s belated attempt, contained in a formal motion submitted to the court last October 19, to include the subject of closure orders.
“In the case at bar, the acts complained of are the notices of demolition issued by defendant Vicente Joseph Lim in his capacity as City Attorney of the City of Lapu-Lapu on the grounds stated therein,” the October 27 ruling read.
With the court order, the Lapu-Lapu City Government said in a full page ad in Sun.Star Cebu today that it can pursue its aim for “entities to pay the correct taxes and comply with the law and ordinances of the City.”
Conflict
Pelaez and City Hall have been crossing swords over allegations of corruption, inefficient public service, and Pelaez’s business interests in the city and alleged unpaid taxes.
Judge Quiwag summarized the arguments of the parties, mentioning, among others, that the Philippine Economic Zone Authority (Peza) granted permits to the businessman.
As to the City Government, Quiwag noted that the Local Government Code grants the local government “the power to regulate activities within its territorial jurisdiction.”
Based on the contrasting points alone, Quiwag said that there is basis to grant the preliminary injunction to “preserve the status quo” pending the final decision on the main case.
Quiwag, in the ruling, explained that there are only two requirements for the issuance of a preliminary injunction—the existence of a right that needs to be protected and the fact that the non-issuance of the injunctive writ puts that right under threat.
Right
“The evidence need only give the court an idea of the justification for the preliminary injunction pending decision of the case on the merits,” he said.
“In this case, petitioners have shown a clear right threatened by the questioned notices of demolition. As a business enterprise, plaintiffs will suffer damage once defendants will implement their notice of demolition,” the judge said.
But City Hall can simply issue closure orders and enforce these without resorting to demolition.
Florido himself, in his October 19 motion, raised such a possibility.
Florido said City Hall already attempted to do this once, narrating that the City Government closed Pelaez’s Marina Mall after the judge issued a temporary restraining order last Oct. 11 and then justifying the act by saying only demolitions were covered.
Quiwag, in the Oct. 25 order, was constrained to deny the motion, citing the Supreme Court’s ruling in the AFP vs. Teofilo Guadiz Jr. case.
“Court orders must not go beyond those prayed for in the complaint. Issuing a clarificatory order or restraining order that went beyond the prayer in the complaint prejudged the conflict between the respondents amounting to a decision on the merits,” the ruling said.
Pelaez, through his lawyers, filed the original injunction suit early last month after City Hall issued a notice of closure against Marina Mall for lack of permits. Copies of the notice were also sent to the mall’s tenants.
Notices of demolition quickly followed.
Pelaez went to court and, in a press conference, presented to the media documents from Peza stating that his business is covered by permits.
The court issued a temporary restraining order against the demolition last October 11.
Eight days after, the City Government padlocked Marina Mall for close to nine hours. It reopened only when Peza officials arrived and argued that they, and not City Hall, have jurisdiction over the mall. (Sun.Star Cebu)
For more Philippine news, visit Sun.Star Pangasinan. (November 7, 2007 issue)
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