LEGAL OPINION RE CONFLICTING CLAIMS OVER THE NEW ALKOR GALLERA FOR PURPOSES OF THE ISSUANCE OF BUSINESS PERMIT [DELAYED POSTING]

Republic of the Philippines
Province of South Cotabato
City of Koronadal
OFFICE OF THE CITY LEGAL OFFICER
Tel No. (083) 228-1742


LEGAL OPINION NO. ________

DATE : 27 August 2013

TO : Hon. PETER B. MIGUEL, M.D., FPSO-HNS
City Mayor

RE : AS STATED
____________________________________________________


Kanami Koronadal!


This has reference to your request for legal opinion regarding the conflicting claims over the New Alkor Gallera, situated at Lot No. 33-D-3, (LRC) Psd-159732, with an area of 10,000 square meters, more or less, between Joveniano Tiu, et al. and Engr. Ernie Padernal. Said lot was formerly covered by TCT No. T-31907.

As gathered, it appears that the subject property, which was originally registered in the name of Alfredo (deceased) and Rufina Padernal, was mortgaged to the Philippine National Bank (PNB) by Ernie and Evelyn Padernal on the strength of a Special Power of Attorney from the registered owners. Upon default of the mortgagor, the mortgage was extrajudicially foreclosed and PNB was able to acquire the property, including the improvements thereon. Eventually, the title was consolidated in the name of PNB under TCT No. T-91167.

Subsequently, PNB entered into a Contract to Sell with Joveniano Tiu, et al. and authorized the latter to operate the said cockpit. The vendees formed a corporation and have now a pending application with the Securities and Exchange Commission.

Prior thereto, Joveniano Tiu, et al. used to operate the said cockpit on the strength of a contract of lease with the Padernals, which however had already expired. Considering that the subject property has already been sold to them by PNB, Joveniano Tiu, et al. are now applying for a business permit/special permit to operate the same. Engr. Ernie Padernal interposed an objection thereto claiming that he is the licensee as regards the said cockpit and that although there already was a foreclosure, there was no writ of possession from the court yet allowing PNB to take possession of the subject property.

We are therefore confronted by an issue of whether or not Joveniano Tiu, et al. may be issued business permit/special permit with respect to the operation of the subject cockpit.

We answer in the affirmative, subject only to the requirements set by the law and ordinance.

As discussed, PNB, the new registered owner of the subject property, has already entered into a Contract to Sell with Joveniano Tiu, et al., on 18 February 2013. In addition, PNB, through its Branch Manager, Evelyn B. Tampus, has authorized Joveniano Tiu, et al., via a Memorandum/Certification dated 19 July 2013 to operate the said cockpit. Considering that they have been in possession of the subject property, we find no logic in requiring them to secure first a writ of possession from the Court. A writ of possession is needed only if the prevailing party in an action or proceeding is not yet in possession of the property. It is a remedy available to the purchaser at a public auction and to any subsequent buyers thereof, which remedy may or may not be availed of. In this case, such writ is no longer necessary because the purchasers have been in possession of the property and have in fact been operating the same. This is a case of possessors who have been enjoying the beneficial use of a property, who have subsequently acquired the naked ownership of the same property. Needless to say, Engr. Padernal had already ceased to be the owner of the property; hence, his objection has no leg to stand on.

We hope that we have guided you accordingly.




In public service,




ATTY. EUFEMIO A. SIMTIM, JR.
City Legal Officer




ABEGAIL F. BATARA, LLB
Legal Assistant II