City MR Main Case 09jan2009

8/3/2019 City MR Main Case 09jan2009

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WHEREFORE, premises considered, the appeal isGRANTED. The assailed September 22, 2007 Decision of theRegional Trial Court (RTC), 11th Judicial Region, Branch 17, DavaoCity, upholding the validity and constitutionality of Davao City

Ordinance No. 0309-07, Series of 2007, is hereby REVERSEDand SET ASIDE.

FURTHER, the Writ of Preliminary Injunction dated 28January 2008 enjoining the City Government of Davao, and anyother person or entity acting in its behalf, from enforcing andimplementing City Ordinance No. 0309-07, is hereby made

permanent.

The foregoing verdict, which strikes down Ordinance No, 0309-07, Series

of 2007, better known as the ordinance banning aerial spraying as an agricultural

practice in all agricultural entities in Davao City as unconstitutional in its entirety

is purportedly based on the following grounds, to wit:

1. That Ordinance No. 0309-07 is an unreasonable exercise by the City

of Davao of its delegated police power for the reason that the three (3)

month transition period provided under Section 5 thereof is

unreasonable for being impossible to comply with;

2. That the total ban on aerial spraying runs afoul with the equal

protection clause because it does not classify which substances are

prohibited from being applied aerially even as reasonable distinctions

should be made in terms of the hazards, safety or beneficial effects of

liquid substances to the public health, livelihood and the environment;

and

3. That the buffer zone requirement in the ordinance violates the due

process clause of the constitution because it unreasonably deprives

plantation owners of the lawful and beneficial use of such areas to be

ceded, without just compensation;

With all due respect, respondent-appellee City of Davao is of the view that

the said decision is erroneous in that it utterly disregards prevailing constitutional

norms and statutory provisions, and in patent direct collision with the evidences

at hand and the attendant circumstances surrounding the case.

Hence, this motion for reconsideration.

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Arguments/Discussion

WITH ALL DUE RESPECT, THEHONORABLE COURT OF APPEALSERRED IN HOLDING THAT SECTION5 OF ORDINANCE NO. 0309-07,SERIES OF 2007 ISUNREASONABLE, MAKING DAVAOCITY ORDINANCE BANNING AERIALSPRAYING AN UNREASONABLEEXERCISE OF DELEGATED POLICEPOWER

In nullifying Ordinance No. 0309-07, Series of 2007, this Honorable Court

stresses that its enactment is an unreasonable exercise by the City of Davao of

its delegated police power; hence, void and unconstitutional (page 12, Decision).

In particular, this Honorable Appellate Court reasoned that the means employed

by the said ordinance to accomplish its lawful purpose is oppressive.

To be more specific, respondent-appellee recounts that first, this

Honorable Court leaned to petitioner-appellants cry that it would not be

physically possible for them to be able to configure their banana

plantations for ground spraying within such an insufficient period of three

(3) months (at page 14, Decision), per Section 5 of the subject ordinance. In so

holding, this honorable Appellate Court took the side of petitioner-appellants by

giving more credence to, among others, the testimony of their witnesses, Dr.

Maria Emilia Rita C. Fabregar, Ph. D. and Engr. Magno. P. Porticos. Apparently,this Honorable Court is convinced that it would really take three (3) years for

petitioner-appellants to completely reconfigure their banana plantations to

accommodate ground spraying vehicles and other equipment. With all due

respect, respondent-appellee City of Davao submits that the honorable Court of

Appeals erred in this regard.

Foremost, the ordinance banning aerial spraying in Davao City does not

mandatorily require or impose upon petitioners-appellants the obligation to the

shift to truck-mounted boom spraying method only. As a matter of fact, this

honorable Court even noted that there are at least three (3) modes of ground

spraying available for petitioners-appellants, namely: (1) truck-mounted boom

spraying; (2) manual or backpack spraying; and (3) sprinkler spraying. Yet,

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for reasons known only to them, petitioners-appellants insist on shifting to the

truck-mounted boom spraying system.

What is patent is that such a choice is only a ploy resorted to by

petitioners-appellants in order to have a reason for not complying with the three

(3) month transition period mandated by the ordinance. Their insistence to shift

to truck-mounted boom spraying alone is capricious, whimsical and wayward

because a couple of other methods are available to them in the meantime that

they are reconfiguring their banana plantations to accommodate truck-mounted

boom sprayer as their prime choice.

In the testimony of petitioners-appellants witness cited by the honorableCourt of Appeals in its Decision (at page 15), the former maintained that they

need at least three (3) years to shift to truck-mounted boom spraying. Breaking

the shift into stages, they claim that six (6) months is needed for the planning

stage alone; two (2) months to secure the necessary government permits;

eighteen (18) months for the clearing of banana plants and dismantling or

reconstructing fixed infrastructures, such as roads, drains, cable ways, and

irrigation facilities; six (6) months for the importation and purchase of trucks

mounted with spray booms, nurse trucks and protective gears, including the

training of the personnel who shall man the same; and six (6) months to one (1)

year is needed to secure the needed capitalization to finance the said

undertaking.

Petitioners-appellants arrive at the three-year period requirement simply

because they added the months allegedly needed for each of the stages

mentioned in the immediately preceding paragraph. Such a claim deservesoutright rejection considering that by the use of simple common sense and plain

logic, most of the said predetermined stages can be undertaken simultaneously.

For instance, aftera year of planning and securing the needed capitalization,

petitioner-appellants can actually commence SIMULTANEOUSLY in securing

the needed government permits, clearing the banana plants, etc, and in the

importation of trucks to be used for spraying. Hence, in this instance, the

three (3) year period is an exaggeration clearly calculated to draw the sympathy

of this Honorable Tribunal.

Thus, their highly exaggerated claim of three (3)-year shift time

requirement, and the alleged impossibility of complying with the herein subject

ordinance deserve outright rejection.

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What is more, no evidence was offered by petitioners-appellants to prove

the truthfulness of each of the supposed needed period for each of the

undertakings as identified above. At the very least, petitioners-appellants

interposition of the same, aside from being self-serving, generates nothing but

disbelief. The records of the instant case is bereft of any showing that

petitioners-appellants included in their voluminous bundles of documentary

evidence the supposed studies or reports made on each of the proposed

undertaking for them to correctly arrive at each of the periods. In short, such a

claim is self-serving and purely speculative, and thus, not worthy of even scant

consideration.

The honorable Court of Appeals cites the testimony of petitioners-

appellants witness Dr. Anacleto M. Pedrosa, in upholding petitioners-appellants

stand that manual or backpack spraying would imperil not only the banana

production but also the health of the workers because the same are the least

safe and least efficient among the methods of spraying (at page 16, Decision).

This Honorable Court took notice of Pedrosas declaration that More water and

more fungicides, vitamins and mineral and fertilizers will have to be used in

manual spraying to compensate for the weaker pressure generated by the

backpack pumps to project the water solution to the top of the banana canopies.

Also, since the water solutions will have to be manually ferried by the workers,

multiple handling of the water solution results in spillage and waste (italics and

underscoring supplied) (at page 17, Decision).

In fine, petitioners-appellants are saying that in manual or backpack

spraying, the solution must be more concentrated as there will be more

fungicide, vitamins, minerals and fertilizers that will have to be used. Yet, it is a

simple natural phenomenon that the more concentrated the solution is, the more

sticky it becomes. And the stickier the solution, the harder it would be to pump

the same manually. And of course, that becomes more expensive for petitioners.

Again, we go back to the same issue: economics vs. health and environmental

preservation.

There is likewise no logic in petitioners-appellants contention that the

application of fungicide is uneven when manual or backpack spraying is used.

They maintain that the long booms in manual spraying are unwieldy (as cited by

the honorable Court of Appeals at page 17, Decision). Yet, they forgot to

consider that spray planes and manual or backpack sprayers alike are controlled

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by only one person: by a pilot in case of the former, and the manual sprayer

applicator in the case of the latter. Here, it need not be stressed that a spray

plane is bulkier and heavy compared to a manual sprayer boom. Hence, it

necessarily follows that the former is harder to control by a single person than

the latter. Such being the case, there would essentially be more accuracy in the

application of fungicide in manual spraying and ostensibly less in the aerial

method of application. Therefore, rationally, drift can be more controlled and

non-wastage of chemicals is also assured if fungicide is sprayed manually. Thus,

Dr. Pedrosas statement that manual or backpack spraying results in uneven

application of fungicides is totally misplaced.

Also, the last sentence of the above-quoted portion of Dr. Perdrosastestimony is, by far, preposterous. Respondent-appellee can not just see the

logic why petitioners-appellants insist that to ferry the fungicide solutions

manually can result to spillage and waste. Neither can it be correctly said that

multiple handling (if petitioners-appellants are trying to impress that aside from

the manual sprayer applicator, another person has to aid him in carrying filler

solutions) of these solutions can result in the same too. Perhaps the same could

be possible if petitioners-appellants does not or will not exercise due diligence by

training and monitoring the workers on the safe and proper handling of the same,

or when they require the workers to carry fungicide solutions in volume far

beyond their physical capacity.

For sure, aerial spraying, too, involves multiple handling of fungicide

solutions. Respondent-appellee City of Davao needs not stress this particular

concern, as it is too obvious that several persons are needed in the preparation

of fungicide solution and the delivery of the same from the place or preparation

to the spray planes themselves.

What is more, the honorable Court of Appeals also considered Dr.

Perdrosas claim that petitioners-appellants find the sprinkler system to be

unfeasibile. In his judicial affidavit, Dr. Pedrosa mentioned (as reproduced by the

honorable ponente in page 17 of the Decision) alleged studies and experiments

upon which such finding (that sprinkler system is not feasible) is based. Yet, it is

worth stressing too that the alleged hard copies of the supposed studies or

experiment were not offered by petitioners-appellants in evidence to prove the

existence of the same. At the very least, Dr. Pedrosas declaration is mere

hearsay which precludes proper judicial consideration.

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Moreover, as aptly observed by the Honorable Justice Romulo V. Borja in

his 34-page Dissenting Opinion (at page 7, Dissenting Opinion) as regards the

rest of his testimony, Dr. Pedrosas and appellants solicitousness for the

workers of the banana plantation is commendable x x x, yet, the erudite Justice

did not x x x find it matched by an equal concern for those who, not being

connected in any manner to the business of the plantations, are nonetheless

subject to spray drift. While there may be such drifteven in manual spraying

,

in the case of aerial spraying, this drift is most pronounced (emphasis and

underscoring ours).

Mr. Justice Borja went further by saying that:

A further scrutiny of Dr. Pedrosas testimony discloses thathe did not dwell on whether there are available sufficient protectivegears or devices or clothing that can insulate the manual sprayerfrom the toxic chemicals he is spraying or on the cost thereof. Thisis a serious gap in his testimony and in the evidence ofappellants. It was incumbent upon them to establish by at leastclear and convincing evidence that all forms of ground sprayingwas unreasonable, oppressive and impossible to comply with. Bytheir relative reticence on the feasibility of manual or backpackspraying, appellants have failed to establish their claim of the

unreasonableness of the transition period. There is no reason toconclude that the manual sprayer cannot be protected from thetoxic spray. It is possible that appellants merely do not want toexpend the amounts necessary to protect their workers(emphasisand underscoring ours) (at page 7, Dissenting Opinion).

It would not, therefore, be surprising that on the foregoing note, the

Honorable Justice differed fromhis colleagues that appellants have established

the unreasonableness of the transition period(Dissenting Opinion, supra).

Neither can the testimony of CPA Maria Victoria E. Cembrano be given

merit for this honorable Court to find the instant case squarely for the herein

petitioners-appellants. It must be noted that at the court below, and as

recognized by this Honorable Appellate Court, she already admitted that manual

spraying can be done any time (at page 19, Decision). Nonetheless, respondent-

appellee City of Davao humbly differs with this honorable Courts pronouncement

that Ms. Sembranos testimony was limited only to the financial impact of the

conversion, thus, her admission, as this honorable Court puts it, cannot

overthrow justified objections for adopting such a method of application because

she lacked the competence to discuss the technical or engineering aspect of the

conversion.

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With all due respect, this esteemed Courts consideration of Ms.

Sembranos admission to be non-fatal to their case is plainly incongruous to the

established rules of procedure. When the said admission was made by Ms.

Sembrano at the lower court, appellants were too quick to say that the same is

beyond her competence to testify on, thus, does not operate against them.

Unfortunately, the same stand is apparently taken by this honorable Appellate

Court.

Respondent-appellee City of Davao reiterates that such finding is

offensive to the existing procedural behests considering that Ms. Sembranos

admission stands tall in the records of the instant case and which has not been

satisfactorily caused to be stricken off therefrom by the petitioners-appellantswhen she took the witness stand.

As decreed by the Rules of Court, it is elementary that a party cannot

impeach his own witness.

X x x. Section 12, Rule 132 of the Rules on Evidence,provides as follows: "SEC. 12. Party may not impeach his ownwitness. Except with respect to witnesses referred to in

paragraphs (d) and (e) of Section 10, the party producing awitness is not allowed to impeach his credibility. A witnessmay be considered as unwilling or hostile only if so declared by thecourt upon adequate showing of his adverse interest, unjustifiedreluctance to testify, or his having misled the party into calling himto the witness stand. The unwilling or hostile witness so declared,or, the witness who is an adverse party, may be impeached by the

party presenting him in all respects as if he had been called by theadverse party, except by evidence of his bad character. He mayalso be impeached and cross-examined by the adverse party, butsuch cross-examination must only be on the subject matter of his

examination-in-chief. X x x(People vs. Teresita D. Aranda, GR.No. 100985, September 17, 1993).

In this particular instance, Ms. Sembrano is not a witness hostile to

petitioners-appellants. She was not likewise declared by the court a quo as such.

She was neither shown to be an unwilling witness. Thus, her testimony cannot

be impeached by petitioners-appellants, much less, by this honorable Appellate

Court.

Thus, Ms. Sembranos declaration that they can shift to manual spraying

at any time, even today, is binding upon them. And, for this court to strip off the

binding effect of Miss Sembranos judicial admission would be wholly erroneous.

As a matter of fact, the Rules of Court ordains that matters of such nature need

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not be proved. By itself, Ms. Sembranos declaration to that effect made in open

court is already a declaration that they can shift to manual spraying at any time.

For this Honorable Court to rule otherwise, instead of taking judicial notice of the

same, would be to go far beyond what is allowed by the rules.

Once and for all, respondent-appellee City of Davao deems it proper to

reproduce here once more the pertinent portion of Ms. Sembranos testimony,

for this honorable Court to take a second look:

x x x

ATTY. QUITAIN:

May I proceed your, your Honor.

COURT:

Proceed.

ATTY. QUITAIN:

Q - You caused to be prepared this Exh. H-3, cost

of ground truck-mounted spraying?

A - That is right, sir.

Q - Am I correct in saying, that there are other

modes of ground spraying, other than truck

mounted spraying?

A - That is right.

Q - You have this manual spraying to be done by

a person?

A - That is right, sir.Q - And the manual spray to be done by a

person can be done anytime?

A - That is right.

Q - It can even be done tomorrow?

A - Yes, sir.

Q - It can be done today?

A - Yes, sir.

Q - And you can avail of this if you want to?A - That is right.

x x x

(emphasis supplied)

(Please see pages 16 17, TSN, dated May 29, 2007)

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In confirmation and affirmation of the afore-quoted testimony of Miss

Sembrano, the unrebutted attestations of respondents witness Rebecca Royo

Mercado is instructive and enlightening:

x x x

2. Q: You said you are a farmer, do you own any farm?

A: Yes, I own a six (6) hectare parcel of land fully planted to

Cavendish bananas located at Abiod, Pag-asa,

Kapalong, Davao.

3. Q: Are you familiar with Sigatoka disease?

A: Yes, it is a disease which, if not controlled, can devastateor destroy a banana plantation;

4. Q: Do you know how it is controlled?

A: By the use of spray containing, among others, fungicide.

5. Q: How is the spray done in so far as your banana

plantation is concerned?

A: It is done manually by laborers wearing protective

gear and using a back-packed Mist Blower.

6. Q: How long has this manual spraying with the use of back-

packed Mist Blower, been used in this plantation?

A: I have been using this manual method of spraying since

2003.

7. Q: Will it take long to make use of this method?

A: No. As a matter of fact, you can do it even today if

you want to.

8. Q: Is this an effective way of controlling Sigatoka?

A: Yes, it is otherwise I would have shifted to another

method a long time ago. If it was not effective, my

banana plantation, including those owned by my

brothers and sisters which are contiguous to my

property, which also use the manual spraying would

have been destroyed or devastated a long time ago.

9. Q: Including those owned by your brothers and sisters and

your own, how big is the area?A: 30 hectares, more or less, fully planted to bananas.

10. Q: Is it profitable to avail of this method of spraying?

A: Yes, our operation of the 30-hectare banana

plantation is profitable.

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x x x

(emphasis supplied)

(Pls. see 2nd page, Exh. 19 for Respondents)

Between the opinion of Dr. Pedrosa that back-pack or manual spraying is

the least safe and least efficient among the methods of spraying which are

based on speculations and theories, and the testimonies of their very own

employee and witness, Maria Victoria E. Sembrano, and Rebecca Royo

Mercado who testified in a straightforward manner, that her EXPERIENCE with

the use of back-pack manual spraying since 2003 have proven the said method

to be safe and efficient thus contributing to the profitability of her banana

business, it is not difficult to choose the more credible and acceptable testimony.Between opinions and speculations on one hand, and experience on the

other, it is the latter that prevails over the former.

In addition to that, Mr. Justice Borjas words in his observation of the

testimony of Ms. Sembrano is more than explicatory. In his Dissenting Opinion

(at page 5) he correctly discerned that:

If Cembrano, a mere CPA, was incompetent to testify onthe technical feasibility of an immediate shift to manual spraying, amatter for engineers, neither was she competent to testify on theefficiency and safety of truck-mounted spraying relative manualspraying, likewise am engineering matter. Appellants cherry-pickedtheir evidence.

Cembranos expertise lies in the field of finance. And sheclearly invoked a fundamental truth in any economic undertaking:that the bottom line is money. Temporal and logistical constraintsare overcome if sufficient resources are committed to the

undertaking. He ultimate constraint, therefore, is finances.

In other words, the shift to manual spraying within thethree-month period transition id feasible.

(italics and emphasis supplied)

By no stretch of the imagination can it be said or regarded that the aerial

spraying ban is a manifestation of the Citys indifference to the corporeal rights of

petitioner-appellants. It is simply that the appellee as a local government unit

which is obligated to protect the rights of its constituents, in enacting the herein

assailed ordinance, merely gives truth to the principle that property rights must

at all times bow to general welfare. To stress, respondent-appellee City of

Davao cannot just countenance the use of aerial spraying especially of

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pesticides which though good for companies in terms of profitability, wreck havoc

on the health and general welfare of its constituents, and damage the

environment.

Respondent-appellee City of Davao begs to disagree with the honorable

Courts conclusion that to compel petitioners-appellants to abandon aerial

spraying in favor of manual or back-pack spraying or sprinkler spraying within 3

months puts petitioners-appellants in a vicious dilemma between protecting its

investments and the health of its workers on one hand, and the threat of

prosecution if they refuse comply with the imposition, on the other. What is clear

in this case is that petitioners-appellants merely do not want and are

unreasonably resisting the ban. Of course, petitioners-appellants cannot denythat they charge their growers more when they use aerial spraying than when

they use ground spraying in controlling Sigatoka.

In like manner, the Honorable Court of Appeals erred in finding the

applicability of the Laguio doctrine in this case. To reiterate, Ordinance No.

0309-07, Series of 2007 does not operate to close petitioners-appellants lawful

enterprise. The inference it has arrived at that the limitation imposed by the

herein questioned ordinance upon petitioners-appellants prejudice the operation

of the plantations, and the economic repercussions thereof would just be akin to

shutting down the venture is highly speculative and baseless.

Respondent-appellee City of Davao stresses and re-stresses that the

business of the petitioners-appellants is not dependent on aerial spraying. This is

so because not all their plantations use aerial spraying. It is a fact admitted by

the petitioners-appellants that of the entire 5,200 hectare banana plantation

they are operating in Davao City, aerial spraying is used in only about

1,800 hectares (LESS THAN FORTY PERCENT (40%)). Clearly therefore, to

say that the existence and survival of the appellants banana industry is wholly or

largely dependent upon the continued use of the usage of aerial application of

fungicides is far from truth. Thus, for the honorable Court of Appeals to equate

the banning of aerial spraying to the closure of petitioners-appellants business

would not be in keeping with the existing facts and truth.

In fact, some banana plantation areas owned by petitioners-appellants

themselves, particularly Highland Banana Corporation in Sirib, Calinan District,

Davao City, has stopped using aerial spraying of fungicides since the later part of

the year 2006. Furthermore, since the instant case was disposed of by the lower

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court in September 22, 2007 until the present, petitioners-appellants have not

been conducting aerial spraying in their banana plantations in Brgy. Dacudao,

Calinan District, Davao City. Yet, in both cases, petitioners-appellants banana

business venture continues to operate at a profit. To say that the banning of

aerial spraying would mean the closure of petitioners-appellants lawful

enterprise is to totally ignore the evidence and facts extant in the records.

One compelling reason for the enactment of the ordinance banning

aerial spraying is the INHERENT TOXICITY of fungicides used by petitioners-

appellants. All fungicides being toxic, can cause the deterioration not only of

ones physical health but also the environment. Worse, it kills. Petitioner-

appellants cannot successfully deny such reality. They have, in fact, admittedthat fungicides being toxic are dangerous to human health. Such an admission

was duly noted by this honorable Appellate Court when it declared that:

We are skeptical of the foregoing claims on the seeminglyfool-proof safety of pesticides or fungicides, both as chemicalsubstances and in terms of human exposure to the same, since

petitioners-appellants already admitted thatthe pesticides theyuse would prejudice the health of their workers if manuallysprayed. The admission would sensibly mean that exposure tosuch substances, even in its diluted form, poses danger to thehuman health(Decision, at pages 26-27).

This finding by the Honorable Tribunal is confirmation of the fact that

fungicides can harm human health and environmental stability.

As correctly pointed out by Honorable Justice Borja, X x x the inherent

toxicity of pesticides is recognized by statute(Dissenting Opinion, at page 9). He

precisely and squarely cited a pertinent provision of P.D. 1144 by virtue of which

the Fertilizer and Pesticides Authority (FPA) was created, and which law has

been repeatedly leaned upon by no less than the petitioner-appellants in arguing

their case. The said legal provision reads:

WHEREAS, improper pesticide usage presents seriousrisks to users, handlers, andthe public in generalbecause of theinherent toxicity of these compounds which are, moreover,

potential environmental contaminants x x x (italics andemphasis supplied).

Thus, petitioners-appellants claim that the fungicide they are using,

inasmuch as it belongs to Category IV, is of the mildest toxicity and therefore

safe for human beings and the environment, is totally offensive not only to the

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principles of logic and medicine, but also to the teachings of the law as well.

They can neither logically nor legally claim that the fungicides they use in aerial

spraying cannot harm humans and the environment because that is a fact

confirmed by this tribunal and recognized by law.

Another important point raised by Honorable Justice Borja in his

Dissenting Opinion (at page 12) which all the more warrants the reversal of the

decision sought to be reconsidered herein is the fact that the herein subject

ordinance is not actually a measure on the application of pesticides but a

measure against air pollution. He perfectly pointed out that When these

chemicals are sprayed aerially, they become a form of air or atmospheric

pollution.

Justice Borjas view as cited in the immediately preceding paragraph

clearly deserves recognition. The fungicide used by petitioners-appellants, as

soon as they are released in the air by the nozzles of the spray planes, become

air pollutants as defined by Section 5 of Republic Act 8749 otherwise known as

the Philippine Clean Air Act. Exactly as quoted by Mr. Justice Borja, it says:

a) Air pollutant means any matter found in the atmosphereother than oxygen, nitrogen, water vapor, carbon dioxide and theinert gases in their natural or normal concentrations, that isdetrimental to health or the environment, which includes but notlimited to smoke, dust, soot, cinders, fly ash, solid particles of anykind, gases, fumes, chemical mists, steam and radio-activesubstances.


Necessarily, when air pollutants such as sprayed fungicide, a chemical

mist by itself, mixes with the air, then the result is air pollution.

The Philippine Clean Air act further proclaims that:

b) Air Pollution means any alteration of the physical, chemicaland biological properties of the atmospheric air, or any dischargethereto of any liquid, gaseous or solid substances that will or is

likely to create or to render the air resources of the country harmful,detrimental, or injurious to public health, safety or welfare or whichwill adversely affect their utilization for domestic, commercial,industrial, agricultural, recreational, or other legitimate purposes x x

x.


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(Section 5, R.A. 8749)

Aerial spraying of fungicides essentially alters the physical and natural

form of the atmospheric air as the chemical mists entirely foreign to it, mix with it,

thus, results to air pollution.

In line with this honorable Courts pronouncement, Honorable Justice

Borja made it clear once and for all that the banning of aerial spraying is within

the authority of local government units to ban pursuant to Section 2 of the

Philippine Clean Air Act (Dissenting Opinion, at page 13). In view of the same,

Justice Borja correctly held that Davao City Ordinance No. 0309-07 is valid in

that contrary to appellants claims, it has reasonable relation to the purposesought to be achieved as the same is not an absolute ban on the use of

pesticides but a ban on aerial spraying which is a form of air pollution. He further

perfectly articulated that X x x under the Clean Air Act, the City of Davao has

every right and authority to regulate, and even to ban, the use of these

chemicals in its atmospheric air,

In striking down Davao City ordinance banning aerial spraying as invalid,

this honorable Appellate Court discredited the testimony of Dagohoy P.

Magaway, Cecilia O. Moran, Virginia Cataag, Rosita T. Bacalso and Elisa de

Jesus Amba. This honorable Court held that the testimony of the said persons

did not prove that aerial spraying of substances is the proximate cause of the

various ailments such as itchiness and irritation of skin, contraction and

tightening of the chest, minimal tuberculosis, recurring stomach aches, nausea

and lost of appetite they suffer (Decision, at page 27). Yet, no reason was

given and no explanation was offered by this honorable Court in so holding

the same.

The common denominator for the herein subject aerial spray ban

ordinances three (3) month transition period is the URGENCY of the matter.

Aside from the fact that it is within its power to regulate and that to shift to other

modes of spraying is feasible within the said period, respondent-appellee City of

Davao cannot and will not ignore and play deaf to the cry of the lowly people

severely and adversely affected by the aerial spraying of fungicides.

Granting ex gratia argumentithat the alleged illnesses (in its strict medical

sense) cannot as yet be fully attributed to aerial spraying, the ordeal they suffer

every time they are exposed to the fungicide mists, such as skin itchiness,

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contraction and/or tightening in the chest, nausea, lost in appetite, and

difficulty in breathing sufficiently justifies the outlawing of the said mode of

applying fungicide. In short, the declarations of these living witness in

accordance with their personal experience and suffering is more than enough to

prove that aerial spraying brings uncomfortable and tormenting experiences to

human beings.

To emphasize, no amount of medical evidence is needed or required by

the rules to prove that ordinary witnesses for the respondent-appellees have

experienced unbearable severe contraction of or tightening in the chest,

difficulty in breathing, skin itchiness, nausea and loss of appetite. The said

personal experiences, which were all based on personal knowledge of Magaway,Moran, Cataag, Bacalso and de Jesus Amba, do not partake of a testimony

requiring medical expertise as they are mere feelings and/or experiences, and

are more than enough to establish that aerial spraying brings hell to them.

Those unpleasant and offensive experiences were told by no less than

the witnesses for the respondent-appellee, by their own respective direct

personal knowledge and experiences for a considerable length of time. Thus, no

other degree of proof is needed to conclude that aerial spraying had been a

menace for the said lowly members of the community.

For sure, petitioners-appellants as well as the majority of the membership

of this Courts division who voted for the scrapping of Ordinance No. 0309-07,

Series of 2007, would not allow the same to happen to themselves, and would

surely cry violation of their rights when the air they are breathing is no longer the

usual odorless, soothing and body-nourishing oxygen containing other beneficialnatural elements, but one which is exceedingly purulent and putrid because it is

blended with toxic particles.

It is everyones right not be breathe air with impurities and not to be

drenched by any substance or even water when the same is wholly unsolicited

and when the people is constrained to be exposed to it at the wrong place and

time.

With all due respect, respondent-appellee City of Davao disagrees with

this Honorable Tribunals pronouncement that the testimony of respondent-

appellee City of Davaos expert witness, Dr. Lynn Crisanta R. Panganiban, failed

to establish that aerial application of fungicides or pesticides poses greater risk

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to the health of the people and the ecology (Decision, at page 29). A closer on

the judicial affidavit of Dr. Panganiban, an expert in pharmacology and

toxicology, reveals that her testimony merely covers the inherent toxicity of all

kinds of fungicides. To be sure, respondent-appellees purpose of using her

testimony in the instant case is only to stress that fungicides, once inhaled or

ingested, can cause debilitating effects on human body; that no matter how

classified these fungicides are, still, it is injurious to human health.

However, it is worthy to note that respondent-appellee City of Davao did

not solely rely on her expert testimony. Her expertise was sought solely for

purposes of proving that fungicides are inherently toxic no matter what its

classification may be. Thus, in corroboration with her erudite medicalpronouncements that fungicides pose great danger to human health when

sniffed or orally taken, the averments of the residents who stand seriously

affected by the aerial method of spraying agricultural chemicals concretizes the

undisputable reality that aerial spraying should be banned.

Why aerial spraying? It is simply because the said method produces more

spray drift than the ground methods of spraying. That is why it is not surprising

that the complaining residents only abhor the aerial method of spraying in their

respective community. They have nothing to say against the other modes, such

as the manual or backpack spraying method, or even the truck mounted boom

spray method. Though both methods emit nothing but fungicide, yet they can still

endure it as the drift produced thereby is not that much compared to that which

is produced by the aerial method. In the ground methods of spraying, the drift is

tolerable and CONTROLLABLE. However, the City of Davao shall await the day

when other modes of controlling or eradicating Sigatoka without the use of

chemicals, inorganic fungicides and pesticides, comes and it shall act

accordingly and appropriately.

Ergo, contrary to the claims of petitioners-appellants and as opposed to

the current ruling of this honorable Court, Davao City ordinance banning aerial

spraying is NOT UNREASONABLE.

For the same reasons stated above, respondent-appellee City of Davao

humbly disagrees with this honorable Courts declaration that the practice of

aerial sprayingper se and the fungicides or pesticides aerially applied to banana

plantations are inimical to the public health. The City of Davao has

overwhelmingly established that aerial spraying produces more drift which goes

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far beyond the plantation area exposing the people thereto by way of the

testimony of the affected residents, and that fungicides are inherently toxic and

are harmful to human health as testified by the Citys expert witness, Dr. Lynn

Crisanta R. Panganiban.

Incidentally, even the very witness of petitioners-appellants, Richard

Billington, an alleged expert and employee of the company which manufactures

the fungicide used by the appellants in their aerial spraying, himself testified that

these fungicides are toxic and are harmful to human beings.

WITH ALL DUE RESPECT, THEHONORABLE COURT OF APPEALSERRED IN HOLDING THATORDINANCE NO. 0309-07 ISVIOLATIVE OF THE EQUALPROTECTION CLAUSE OF THECONSTITUTION ON GROUNDS OFIMPROPER DISTINCTION.

The all-sweeping nature of the proscription decreed by the ordinance in

question does not justify its nullification. Petitioners-appellants worry about non-

allowance of aerial spraying of fertilizers, vitamins or even water does not even

buttress their case. As stated above, it is everyones right not to breathe air

contaminated with impurities and not to be drenched by any substance or even

water when the same is wholly unsolicited and when the people is constrained to

be exposed to it at the wrong place and time. Not even when the sprayed

substance consists of pure water. This is to give due high regard to the rights of

the unwilling public.

The ratiocination of the honorable Justice Borja in this regard is educating,

thus:

X x x. Nonetheless, the outright ban against aerial sprayingvitamins, minerals and organic fertilizers is still justifiable. Thesematerials, while not generally toxic, may prove to be threatening to

the health of certain individuals because of wind drift from aerialspraying. Vitamins and minerals are generally non-toxic; it is lessclear if organic fertilizer is not hazardous when ingested or inhaledby humans. But who is to say that they may not prove hazardous tothe health ofsome persons? The adage that one mans medicinemay be another mans poison applies here. Besides, there is notechnical reason why such vitamins, minerals and organicfertilizers cannot be sprayed manually or by sprinklers. If they are

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as harmless as appellants would make Us believe, then they areentirely safe for manual spraying(Dissenting Opinion, at pages 16-17).

X x x

X x x. It is true that water is natural, non-toxic compound.When sprayed aerially, however, the mist drifts to the neighboringareas and their population. The act of spraying aerially thereforenecessarily impinges upon the rights of others. Who is to say thatsuch spray would be welcomed by a neighbor who may have a

perfectly good reason to oppose it and the heightenedmoisture it engenders. The situation is akin to that of a manwatering his own garden. His right to do so is unquestioned.But if he employs hosing equipment so powerful that is sprayswater into the air and drenches his neighbors premises, heimpinges upon another persons rights. It is immaterial, as faras this argument goes, whether the water is toxic or not. I takenotice that some asthmatics prefer arid climates which allowthem to breathe easier and which minimizes asthma attacks.

Aerial spraying, by generating drift beyond the confines of thesprayers property, violates the right of his neighbor who hasa constitutional right to a clean and healthy environment, notaccording to the will of another person, but in accordance withthe rhythm and harmony of nature (emphasis and italicssupplied) (Dissenting Opinion, at page 18-19).

Thus, it cannot be correctly held that Ordinance No. 0309-07, Series of

2007 is violative of the equal protection clause of the Constitution.

WITH ALL DUE RESPECT, THEHONORABLE COURT OF APPEALSERRED IN HOLDING THAT DAVAOCITY ORDINANCE NO. 0309-07CONFISCATES PROPERTY WITHOUTDUE PROCESS OF LAW

Again, respondent-appellant City of Davao disagrees with this honorable

Appellate Court when it found Davao City Ordinance banning aerial spraying to

be confiscatory. It held that the buffer zone requirement under Section 6 of the

herein subject ordinance makes no fair distinction as to the area or size of the

plantation over which it shall be established. According to this honorable Court, itimposes a fixed-30 meter Buffer Zone without regard to the size of the

landholdings or plantations. Ultimately, this Honorable Court concludes that the

30-meter buffer zone requirement violates due process clause because it

unreasonably deprives plantation owners, especially those who own lesser land

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areas, say, 1 or 2 hectares, of the lawful and beneficial use of such areas to be

ceded, without just compensation.

Respondent-appellee City of Davao begs to disagree. First, it is well to

note that the local legislative act subject of the instant case is a police power

measure, not an exercise of the power of eminent domain. Thus, just

compensation is out of the province of this controversy. As pronounced by this

Honorable Appellate Court itself citing Social Justice Society, et al vs. Atienza

(Decision, at page 35, In the exercise of police power, there is a limitation on or

restriction of property interests to promote public welfare which involves no

compensable taking. Compensation is necessary only when the States power

of eminent domain is exercised. In eminent domain, property is appropriated andapplied to some public purpose. Property condemned under the exercise of

police power, on the other hand is noxious or intended for a noxious or

forbidden purpose and, consequently, is not compensable.

Second, nothing in Section 6 of the herein subject ordinance with requires

petitioners-appellants to cede a portion of their landholdings. It must not be

forgotten that the term cede necessarily connotes the giving up or formal

surrender of ones right over a property. Furthermore, the term essentially means

transfer of title or ownership over the property. That is not in the case of the

instant legal suit considering that Ordinance No. 0309-07 does not say so.

What is mandated of petitioners-appellants by Section 6 of Ordinance No.

0309-07, Series of 2007 is merely to provide a 30-meter buffer zone around the

entire land area which must be planted with diversified plants such as trees for

the purpose of preventing the drift, which is inevitable too in the case of groundspraying, from reaching areas outside the plantations. The drift which goes off-

target, as told by the witnesses, causes too much discomfort and ordeal upon

the people nearby, and can possibly contaminate the environment, poisons as

they are.

The herein subject ordinances Buffer Zone mandate does not in any

manner deprives petitioners-appellants, or any other plantation owners, of the

unlawful and beneficial use of their landholdings. Once these buffer zones are

already fixed around the area, its existence shall be for the purpose of screening

or if possible, debarring the toxic spray drifts from hitting areas other than the

banana plants. The subject local laws purpose is to spare the neighboring

communities, especially the people habiting around and within, and the

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neighboring environmental spots such as bodies of water, from the highly

disturbing, irksome and intolerably rancid character of fungicide fumes brought

about by the toxic drift. Thus, the use of the property as buffer zone cannot

be said to be unlawful.

With all due respect, neither can this honorable Court rightly say that the

buffer zone requirement of the ordinance deprives petitioners-appellants of the

beneficial use of their property. The purpose of its inclusion in the ordinance

banning aerial spraying is, in itself, lawful, that is, to obviate spray drifts which

are equally toxic from hitting non targets such as human beings and the

environment. Corollary to it, as soon as the buffer zones are already established

and functioning, then that portion of the plantation owners property is being usednot without any benefit. The benefit of its use, though not on the part of the

petitioners-appellants, inures to the people habiting around and the ever

precious ecology.

Perhaps it would do well to be reminded that both the constitution and the

statutes recognize the rule that the use of a property bears a social function.

This legal dogma simply means that one is under legal obligation to use a

property he owns not only for his own good but also for the benefit of others.

Petitioners-appellants are not exempt from complying with the foregoing legal

precept. The said tenet is actually both a constitutional and statutory limitations

on the exercise of property and proprietary rights. Philippine jurisprudence is

abundant in teachings in this regard, thus;

X x x. The use of property bears a social function and issubject to the state's duty to intervene for the common good. X x x

(emphasis supplied) (Telecom And Broadcast Attorneys of thePhils. V. COMELEC, et al, GR No. 132922, April 21, 1998).

X x x. The 1987 Constitution recognizes the existence ofthat power when it provides: 'Sec. 6. The use of property bears asocial function, and all economic agents shall contribute tothe common good. Individuals and private groups, includingcorporations. cooperatives, and similar collective organizations,shall have the right to own, establish, and operate economicenterprises, subject to the duty of the State to promote distributive

justice and to intervene when the common good so demands(Article XII).' The interconnection which has been required of PLDTis a form of "intervention" with property rights dictated by "theobjective of government to promote the rapid expansion oftelecommunications services in all areas of the Philippines, . . .tomaximize the use of telecommunications facilities available, . . .inrecognition of the vital role of communications in nation building . . .and to ensure that all users of the public telecommunications

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service have access to all other users of the service wherever theymay be within the Philippines at an acceptable standard of serviceand at reasonable cost" (DOTC Circular No. 90-248). Undoubtedly,the encompassing objective is the common good. The NTC, as theregulatory agency of the State, merely exercised its delegated

authority to regulate the use of telecommunications networks whenit decreed interconnection. . . .X x x(emphasis supplied) (PLDT v.NTC, et al. GR No. 94374, February 21, 1995).

The argument that petitioners-appellants offered for and in behalf of the

alleged small farm owners insofar as the buffer zone requirement is concerned is

off-tangent. No small farm owner is a party in this case. If any one of them is

aggrieved by the ban, they should have intervened. But no one did. That, by

itself, is indication enough that the buffer-zone requirement was acceptable to

them.

It is worth noting that this case involves large banana plantation

corporations. No one from among its members owns and/or operates a banana

plantation with an area as small as one (1) or two (2), or even ten (10) hectares.

Besides, no one from the small banana plantation owners, if any, joined

petitioners-appellants in instituting and prosecuting this instant suit. Neither is

there any showing that the said small farm owners, largely by themselves,

individually or collectively questioned Davao Citys ordinance banning aerial

spraying for being unconstitutional.

In short, petitioners-appellants cannot properly argue on the alleged

impropriety of the buffer zone requirement, neither can they speak for and in

behalf of, nor represent the alleged small farm owners who do not stand to be

adversely affected by the herein questioned ordinance, or who did not make

themselves parties to the instant suit, or who did not by themselves questioned

the aerial spraying ban ordinance.

Therefore, in line with the above discussion, Davao City ordinance

banning aerial spraying does not constitute unlawful taking of property.

The honorable Justice Borja has had the occasion to give a good lecture

in his Dissenting Opinion (at pages 19-20) on this particular concern. He

correctly held that:

I disagree with the majority on this point. I do not discernany confiscatory taking under Section 6 of the Ordinance. The 30-

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meter buffer zone is related to the issue of air pollution. TheOrdinance does not ban the ground spraying of pesticides. But itwill be noted that appellants own evidence establishes the

phenomenon of spray drift even in the case of manual spraying.The buffer zone serves to insulate neighboring residents from

the drift from manual spraying. In this context, the size or areaof the plantation is of no moment. The width of the buffer zoneis dictated not by the size of the plantation but by the extent ofthe drift.

It is not true, therefore, that there is no reasonablerelation between the purposes of the Ordinance and theimposition of the buffer zone.

The citation of the Laguio case is particularly inapt. In thatcase, the City Government of Manila sought the closure ofbusiness which the said Government claimed to be offensive tomorality. In the instant case, the banana plantation businesses arenot being closed. What is prohibited is merely a particular mode ofdelivering pesticides to the banana trees and the imposition ofbuffer zones. The comparison between the two cases can hardlybe less apropos(italics and emphasis supplied).

By the same token, respondent-appellee begs to disagree with this

honorable Appellate Court in invoking the doctrine of Primus in tempore,

potior jure(first in time, stronger in right). In its Decision (at page 43), this

honorable Court said that it X x x appreciates that the banana plantations are

located in agricultural landholdings which have been occupied, appropriated and

devoted by the petitioners-appellants to their trade, engaging into the practice of

aerial spraying to curb the deleterious effects of virulent banana diseases, long

before dwellers, title holders, and even squatters, surfaced, acquired and

inhabited neighboring potions thereof. Petitioners-appellants who have acquired

a right of prior appropriation, as against these inhabitants, can invoke such right

and they cannot be undulydisturbed in their use of these landholdings and be

prohibited, among others, from practicing aerial spraying thereon, to the

detriment to their corporeal rights, as the assailed Ordinance intends to impose.

Nonetheless, such right may still be subject to reasonable legislation. X x

x. (italics and emphasis supplied).

First, the instant case involves NO issue of possession or the title

covering appellants banana plantations. Second, such was not raised by

petitioners-appellants during trial at the court below and even in their pleadings.

Thus, it is entirely a new and foreign matter. Third, on the assumption that there

is such an issue raised by petitioners-appellants, no evidence was offered by

petitioners-appellants to prove the same.

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Most importantly, the ordinance sought to be nullified by petitioners-

appellants does not in any way operate to deprive, or evict petitioners-appellants

from their property. What is merely sought to be outlawed by the herein subject

ordinance is the use of aerial spraying as a mode of applying fungicides to

banana plants and other agricultural crops. There is nothing in the herein

assailed ordinance which mandates the banana plantation owners or other

persons or entities engaged in agricultural production to surrender possession of

their lands to, say, the City Government of Davao, or another person or entity.

To stress the point anew, Ordinance No. 0309-07, Series of 2007 of the

City of Davao merely proscribes the use of aerial spraying, considering theoffensiveness of, and danger brought about by, the spray drift which, as duly

established by respondents-appellee, have been known to hit non-target areas

and cause discomfort to the people habiting around. The banana plantations and

other agricultural entities are merely asked to cease in aerially spraying

fungicides and other chemicals, and not to vacate or surrender their

landholdings. The records of the instant case is wanting of any showing that

respondent-appellees City Government of Davao or the complaining individuals

questioned petitioners-appellants title to or possession over the land areas they

utilize in growing banana plants.

Surely, petitioners-appellants cessation of aerial spraying activities does

not amount to deprivation of their property. As stated above, they are not asked

to relinquish ownership or possession of their lands. They can continue to

nurture and grow their banana plants. Neither does the Ordinance prohibit the

use of their aero planes, other than broadcasting fungicides aerially. They can

still use the same for some other lawful purpose, such as transportation of goods

or personnel. In like manner, the fungicides they have purchased for aerial

spraying can still be used in ground spraying because precisely it is the same

chemical used in controlling banana plant diseases.

Besides, NOT ALL land areas used by petitioners-appellants in planting

and growing banana plants are owned by them or registered under its, or its

members, corporate name. Be it known to this honorable Court that a huge

portion of these banana plantations are owned by INDIVIDUAL GROWERS. Its

just that these growers whose landholdings are adjacent to each other leased

the same to the banana corporations for banana production. In fact, the said

growers subsequently entered into contract with the same banana companies

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binding themselves to personally till the land they lease, particularly by planting

and growing the bananas, with the other technical support and other inputs being

supplied by petitioners-appellants for a fee of course.

Ergo, the doctrine Primus in tempore, potior jure as used by this

honorable Appellate Court in justifying its verdict of disposing of the instant case

in favor of the petitioners-appellants, is, to our view, inapplicable. A survey of

jurisprudential pronouncements on the matter reveals that such doctrine only

applies in sales of parcels of lands, thus:

In interpreting this provision, the Court declared that thegoverning principle is primus tempore, potior jure (first in time,

stronger in right). Knowledge gained by the first buyer of thesecond sale cannot defeat the first buyer's rights, except where thesecond buyer registers in good faith the second sale ahead of thefirst as provided by the aforequoted provision of the Civil Code.Such knowledge of the first buyer does not bar him from availing ofhis rights under the law, among them to register first his purchaseas against the second buyer. However, knowledge gained by thesecond buyer of the first sale defeats his rights even if he is first toregister the second sale, since such knowledge taints his priorregistration with bad faith. 34 It is thus essential, to merit the

protection of Art. 1544, second paragraph, that the second realty

buyer must act in good faith in registering his deed of sale(emphasis supplied)(Carmelita Fudot v. Cattleya Land, Inc., GRNo. 171008, September 13, 2007).

The law is clear that when the thing sold twice is animmovable, the one who acquires it and first records it in theRegistry of Property shall be deemed the owner. Primus tempore,

potior jure. First in time, stronger in right. However, the act ofregistration must be coupled with good faith. That is, the registrantmust have no knowledge of any defect in the title of the vendor ormust not have been aware of facts which should have put him

upon such inquiry and investigation as might be necessary toacquaint him with any such defect (emphasis supplied) (Sps.Brilly and Olivia Bernardez, et al v. Court of Appeals, et al, GRNo. 165888, September 14, 2007).

The principle ofprimus tempore, potior jure (first in time,stronger in right) gains greater significance in case of double saleof immovable property. When the thing sold twice is an immovable,the one who acquires it and first records it in the Registry ofProperty, both made in good faith, shall be deemed the owner. 38Verily, the act of registration must be coupled with good faith

that is, the registrant must have no knowledge of the defect or lackof title of his vendor or must not have been aware of facts whichshould have put him upon such inquiry and investigation as mightbe necessary to acquaint him with the defects in the title of hisvendor (emphasis supplied) (San Lorenzo Devt. Corp., vs.Court of Appeals, GR No. 124242, January 21, 2005).

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Jurisprudence teaches that the governing principle isprimus tempore, potior jure (first in time, stronger in right).Knowledge gained by the first buyer of the second sale cannotdefeat the first buyer's rights except where the second buyerregisters in good faith the second sale ahead of the first, as

provided by the aforequoted provision of the Civil Code. Suchknowledge of the first buyer does not bar him from availing of hisrights under the law, among them to register first his purchase asagainst the second buyer. In converso, knowledge gained by thesecond buyer of the first sale defeats his rights even if he is first toregister the second sale, since such knowledge taints his priorregistration with bad faith. This is the price exacted by the same

provision of the Civil Code for the second buyer to be able todisplace the first buyer; before the second buyer can obtain priorityover the first, he must show that he acted in good faith throughout(i.e. ignorance of the first sale and of the first buyer's rights) fromthe time of acquisition until the title is transferred to him by

registration, or, failing registration, by delivery of possession(emphasis supplied) (Sps. Samuel and Susana Ulep, et al, v.Court of Appeals, et al, GR No. 125254, October 11, 2005 ).

From the foregoing jurisprudential declarations, it is very clear that the

first in time, stronger in right principle only applies to disputes regarding sale of

realties. By its essence, the said doctrine is entirely inapplicable in the instant

case. Thus, the ratiocination by this honorable Appellate Court in this particular

concern is not in keeping with the rules.

And finally, long before these plantations became such, people were

already residing thereat. These lands were not UNINHABITED before the

appellants arrived. They were peopled areas.

ConclusionAs what has been correctly pointed out by Honorable Justice Borja in his

Dissenting Opinion (at page 1), In any challenge against the constitutionality of

a statute or ordinance, the overarching principle is that the acts of the legislature

national or local enjoy the presumption of validity.

In this case, petitioners-appellants failed to overthrow the said

presumption. In answer to Mr. Justice Borjas query (at page 3, Dissenting

Opinion), respondent-appellee City of Davao humbly submits that petitioners-

appellants have marshaled no evidence to establish the unreasonableness of

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the Ordinance banning aerial spraying. Thus, the presumptive validity of the

subject ordinance prevails.

In conclusion, it is stressed and re-stressed that the constitutionally and

statutorily guaranteed rights of the people to health and a healthful and balanced

ecology ranks ahead of the quest for dollars, dollars and more dollars. Under the

doctrine ofParens Patriae, the State, including local government units, must be

vigilant for the protection of the underprivileged, as against the economically

privileged. To reecho the honorable Supreme Courts most recent excursus on

the matter, appellee invokes the following jurisprudential teaching:

The Senior Citizens Act was enacted primarily to maximize

the contribution of senior citizens to nation-building, and to grantbenefits and privileges to them for their improvement and well-being as the State considers them an integral part of our society.

x x x

The law is a legitimate exercise of police power which,similar to the power of eminent domain, has general welfare for itsobject. Police power is not capable of an exact definition, but hasbeen purposely veiled in general terms to underscore itscomprehensiveness to meet all exigencies and provide enough

room for an efficient and flexible response to conditions andcircumstances, thus assuring the greatest benefits.Accordingly, ithas been described as the most essential, insistent and the leastlimitable of powers, extending as it does to all the great publicneeds. It is [t]he power vested in the legislature by theconstitution to make, ordain, and establish all manner ofwholesome and reasonable laws, statutes, and ordinances, eitherwith penalties or without, not repugnant to the constitution, as theyshall judge to be for the good and welfare of the commonwealth,and of the subjects of the same.

For this reason, when the conditions so demand asdetermined by the legislature, property rights must bow to the primacy of police power because property rights, thoughsheltered by due process, must yield to general welfare..

Police power as an attribute to promote the common goodwould be diluted considerably if on the mere plea of petitioners thatthey will suffer loss of earnings and capital, the questioned

provision is invalidated. Moreover, in the absence of evidencedemonstrating the alleged confiscatory effect of the provision inquestion, there is no basis for its nullification in view of the

presumption of validity which every law has in its favor.

x x x

Moreover, the right to property has a social dimension.While Article XIII of the Constitution provides the precept for the

protection of property, various laws and jurisprudence, particularlyon agrarian reform and the regulation of contracts and public

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utilities, continuously serve as a reminder that the right toproperty can be relinquished upon the command of the Statefor the promotion of public good. (italics and emphasissupplied) (Carlos Superdrug Corp., et al vs. DSWD, et al, G.R.No. 166494, June 29, 2007).

Most importantly, the newest pronouncement of the Supreme Court is

very illustrative, highly enlightening, and worth pondering:

Essentially, the oil companies are fighting for their right toproperty. They allege that they stand to lose billions of pesos ifforced to relocate. However, based on the hierarchy ofconstitutionally protected rights, the right to life enjoys

precedence over the right to property. The reason is obvious,life is irreplaceable, property is not. When the state or LGUsexercise police power clashes with a few individuals right to

property, the former should prevail (SOCIAL JUSTICESOCIETY ET AL V. HON. JOSE L. ATIENZA, GR NO. 156052,FEBRUARY 13, 2008).

In the same manner, to borrow the language of the Supreme Court in the

afore-cited case, any delay for the implementation of the herein questioned

ordinance is unfair to the inhabitants of the City of Davao and its leaders who

have categorically expressed their desire for the banning of aerial spraying.

This power to chart and control their own destiny and preserve their lives

and safety should not be curtailed byappellants warnings of doomsday

scenarios and threats of economic disorder if the ordinance is enforced

(SOCIAL JUSTICE SOCIETY ET AL V. HON. JOSE L. ATIENZA supra. )

(emphasis supplied).

As a matter of fact, the novelty of this case and the inappropriateness of the

decision sought to be reconsidered herein caught the attention of no less than

the renowned Philippine constitutionalist, Fr. Joaquin Bernas, S.J. In the

January 26, 2009 issue of the Philippine Daily Inquirer, the lawyer-priest has

the following points to say:

X x x

The case in essence is a conflict between the right toproperty and the right to life. The accepted jurisprudence is that inthe hierarchy of rights life normally prevails over property. This

principle will certainly play a role in any review of the Court ofAppeals decision.

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Strangely, while the challengers of the ordinance expressedconcern about the health of farm workers doing manual spraying,no similar concern was expressed about the health of the other

people in the vicinity.

On the battle about the impossibility of carrying out theswitch from aerial spraying within the three-month period set by theordinance, the challengers set out a parade of experts. Contraryassessments were also presented by the City of Davao, but theCourt of Appeals belittled the effort of the City saying that itbetrays its lack of technical understanding on the intricacies of theengineering works required for the efficient operation of banana

plantations, and exposes its indifference to the corporeal rights[sic] of banana planters to protect and enhance their investments.

X x x

It is also interesting that the Court of Appeals did not finditself satisfied with the evidence on whether the sprays being usedwere safe or not. It said: We are skeptical of the foregoing claimson the seemingly fool proof safety of pesticides or fungicides, bothas chemical substances and in terms of human exposure to thesame, since petitioners-appellant already admitted that thefungicides or pesticides the use would prejudice the health of theirworkers if manually sprayed. The admission would sensibly meanthat exposure to such substances, even in the diluted form, posesdanger to human health, The CA continued Our opinion is not

necessarily a categorical indictment against the decree of safety inthe usage of these substances. However, without preponderantand actual empirical proof of the testimonies of petitioners-appellants witnesses, no conclusion can be reached as to whetheror not the use of pesticides or fungicide is safe.

On the other hand, the court also said that the respondentsdid not prove that the aerial spraying of substances is the

proximate cause of the various ailments (itchiness and irritation ofskin, contraction and tightening of chest, minimal tuberculosis,

recurring stomachaches, nausea and lost of appetite) theyallegedly suffer.

On the basis of these two uncertainties the court decided tofavor the planters. This raises the issue whether in a conflictingsituation like this where the court is uncertain as to who is wrongand who is right a court should substitute its judgment for that ofthe legislator. Apparently the legislator had made its judgment onthe basis of evidence it had found and on labels on the solutionssaying, as the editor of Sunstar Davao enumerates:

Harmful if absorbed through the skin, may causenose, throat, eyes and skin irritation.

Do not breathe dust of spray mist.

This pesticide is toxic to fish. Drift and runoff fromtreated areas may be hazardous to aquaticorganisms in neighboring areas.

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During aerial application, human flaggers must be inenclosed cabs.

X x x

A photocopy of a clipping of the afore-quoted news writing is hereto

attached as Annex A, and forms part of this Motion for Reconsideration.

With all the ratiocinations cum citation of the prevailing attendant facts

and circumstances, and the applicable prevailing legal precepts as

comprehensively discussed above, Davao City Ordinance No. 0309-07, Series of

2007 is, therefore, NOT UNCONSTITUTIONAL.

Prayer

HEREFORE, all the foregoing considered, it is hereby most

respectfully prayed of the honorable Court of Appeals that:

1. The Decision dated 09 January 2009 be REVERSED

AND SET ASIDE, and a new judgment be entered AFFIRMING

the Decision dated 22 September 2007 of the Regional Trial

Court of Davao City (Branch 17) upholding the validity of Davao

City Ordinance No. 0309-07, Series of 2007, otherwise known as

An Ordinance Banning Aerial Spraying As An Agricultural

Practice In All Agricultural Entities In Davao City;

2. The Writ of Preliminary Injunction dated 28 January 2008, which

has been made permanent by this honorable Court in its January

9, 2009 Decision, be DISSOLVED.

RESPECTFULLY SUBMITTED.

Davao City, (for Cagayan de Oro City), Philippines, _________________.

W

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THE OFFICE OF THE CITY LEGAL OFFICERCity Hall, Davao City

Counsel for Respondent City of DavaoBy:

Atty. J. MELCHOR V. QUITAINCity Legal Officer

I.B.P. (2009) No.: 736179 (10-08-08, D.C.)P.T.R. (2009) No.: 7112451 (10-08-08, D.C.)

MCLE Exemption No. 11-000334Roll of Attorneys No.: 23249

Atty. JOSEPH DOMINIC S. FELIZARTALegal Officer IV

P.T.R. No.: 7310217 (1-05-09/D.C.)I.B.P. No.: 762977 (1-06-09/D.C.)

Roll of Attorneys No. 48817MCLE Compliance No. II-0011017

Atty. ENRIQUE J. A. BONOCANLegal Officer IV

PTR (2009) No. 7310219 (1-05-09/DC)IBP (2009) No. 736238 (12-02-08/DC)

Roll of Attorneys No. 48825

REQUEST

The CLERK OF COURTCourt of Appeals22nd DivisionCagayan de Oro City

Sir/Madam:

Greetings!

Please submit the foregoing Motion For Reconsideration for the kind

consideration and resolution of this Honorable Court immediately upon receipthereof, or the soonest thereafter, taking into account the nature of the same.

Atty. J. MELCHOR V. QUITAIN

Atty. JOSEPH DOMINIC S. FELIZARTA

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Atty. ENRIQUE J. A. BONOCAN

NOTICE

Villaraza & Angangco Law OfficesCounsel for Petitioner PBGEA et al5F, LTA Building 118 Perea Street,Legaspi Village, Makati City

Sentro ng Alternatibong Lingap Panligal

(SALIGAN-Mindanao)Door 1, 422 Champaca St.,Juna Subdivision, Matina,Davao City

Messieurs and Mesdames,

Greetings!

Please be informed that the foregoing Motion For Reconsideration shallbe submitted for the consideration and resolution of this Honorable Court,immediately upon receipt hereof, or the soonest thereafter.




EXPLANATION

A copy of this Motion For Reconsideration is served upon petitionerscounsel through registered mail due to impracticability of personal delivery onaccount of distance constraints.



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Copies Served on:

COURT OF APPEALS(CA G.R. CV No. 01389)Mindanao StationCagayan de Oro City

THE OFFICE OF THE SOLICITOR GENERAL134 Amorsolo St., Legaspi Village,Makati City

VILLARAZA & ANGANGCO LAW OFFICESCounsel For PBGEA et al5th Flr., LTA Building,

118 Perea Street, Legaspi Village,1229 Makati City, Metro Manila

SENTRO NG ALTERNATIBONG LINGAPPANLIGAL (SALIGAN)Counsel for IntervenorsDoor 1, #422 Champaca St.,Juna Subdivision, Matina,Davao City

AFFIDAVIT OF PROOF OF FILING AND SERVICE

,I .ELISEO B CAPANGPANGAN, , ,of legal age Filipino married and a resident of

, , ,Davao City Philippines after having been duly sworn in accordance with law hereby

:depose and say

1. That I am the designated Process Server of the Office of the City Legal

, ;Officer Davao City

2. 30 2009,That on January I filed and served the original and duplicate copies

3 5through registered mail in accordance with Sections and in relation to

10, 13 , :Section Rule of the Rules of Court to wit

MOTION FOR RECONSIDERATION

30 2009Dated January

. . . .in CA G R CV No 01389-MIN,

Pilipino Banana Growers and, ., . ,Exporters Association Inc et al vs City of Davao et al, by depositing

, , ,them at the Post Office in NCCC Mall Matina Davao City in sealed

, , ., ,envelopes plainly addressed to the Supreme Court Padre Faura St Manila

, /Philippines and the parties and or attorneys for the parties at their

/respective offices residence with postage fully prepaid hereto attached and

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with instructions to the Postmaster to return the mail to the sender after

(10) ;ten days if undelivered

3. :That the addressees are as follows

COURT OF APPEALS .: _________Registry Receipt No

( . . . 01389)CA G R CV No : 30 2009Date January

Mindanao Station

Cagayan de Oro City

THE OFFICE OF THE SOLICITOR GENERAL .: _________Registry Receipt No

134 ., ,Amorsolo St Legaspi Village : 30 2009Date January

Makati City

VILLARAZA & ANGANGCO LAW OFFICES Registry Receipt No.: ___________

Counsel For Petitioners : 30 2009Date January

5th Flr., LTA Building,118 Perea Street, Legaspi Village,1229 Makati City, Metro Manila

SENTRO NG ALTERNATIBONG LINGAP Registry Receipt No.: ___________

PANLIGAL (SALIGAN) : 30 2009Date January

Counsel for IntervenorsDoor 1, #422 Champaca St.,Juna Subdivision, Matina,Davao City

4. That I filed and served the foregoing pleading by registered mail due to the distanceinvolved, lack of time and personnel rendering personal filing and serviceimpracticable.

5. That I am executing this Affidavit in order to attest to the truth of the foregoing factsand for whatever legal intents and purposes it may serve.

IN WITNESS WHEREOF, I have hereunto set my hand this 30 2009January , in the City

of Davao, Philippines.

ELISEO B. CAPANGPANGANAffiant

}Republic of the Philippines

} .CITY OF DAVAO s s

---------------------x x

, ,Before me a notary public for and in the City of Davao personally appeared

.ELISEO B CAPANGPANGAN, . ___________, __________,with CTC No issued on at

, ,Davao City Philippines who is personally known to me to be the same person who

,presented the foregoing instrument and signed the same in my presence and who

took an oath before me as to such instrument

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- .Witness my hand and seal on the date and place above written

. .: ____Doc No

.: ____Page No

.: ____Book No

2009Series of

Documents

City MR Main Case 09jan2009