Republic of the Philippines

PAGE 5

Republic of the PhilippinesREGIONAL TRIAL COURT

8th Judicial Region

BRANCH ____

Tacloban City

SPS. BAYANI BOB MONTECASTRO

CIVIL CASE No. ____________

and HELEN MORENO MONTECASTRO,

FOR:

Plaintiffs,

JUDICIAL ABATEMENT OF

NUISANCE and MANDAMUS

-v e r s u s-

SPS. FELIPE MAILIM & ERLINDA MAILIM,

WILLIAM B. PLACA,SR.

Barangay Chairman,

Brgy. 88, San Jose, Tacloban Cityand TACLOBAN CITY ENGINEERS

OFFICE, represented by City

Engineer Felix Ripalda,

Defendant.xx----------------------------------------------xx

C O M P L A I N T

PLAINTIFFS, by counsel, unto this Honorable Court most respectfully aver: THAT

I. Plaintiffs SPOUSES BAYANI BOB MONTECASTRO and HELEN MORENO MONTECASTRO are both of legal age, married, and with postal address at Costa Brava, Brgy. 88, San Jose, Tacloban City, where they may be served with court notices; the defendants SPS. FELIPE MAILIM and ERLINDA MAILIM are both of legal age and with postal address at Costa Brava, Brgy. 88, San Jose, Tacloban City; defendant WILLIAM B. PLACA, SR. is of legal age, Filipino and a Barangay Chairman of Brgy. 88 San Jose, Tacloban City, at which place he may be served with summons and notices; and public defendant TACLOBAN CITY ENGINEERS OFFICE, Tacloban City, represented by its CITY ENGINEER FELIX RIPALDA. All the plaintiffs and defendants have the capacity to sue and to be sued.

2. Defendant William B. Placa Sr. is a public official and the dispute relates to the performance of his official functions; likewise, the Office of the Tacloban City Engineer is an instrumentality of the Local Government Unit of Tacloban City. Hence, pursuant to Sec. 408 (a) and (b) of the Katarungang Pambarangay Law, this matter is beyond the authority of the Lupon Tagapamaya to bring together the parties for a barangay conciliation proceeding.

3. Defendants Spouses Mailim claimed a foreshoreland with an area of 1000 sq.m. abutting the Cancabato Bay, in Costa Brava, Brgy. 88, San Jose, Tacloban City, evidenced by a SKETCH hereto attached and made an intergral part hereof as ANNEX A.

4. Plaintiffs are also owners of a titled property located at the same place, adjoining the foreshoreland of the defendants Mailim.

5. Defendants Mailim constructed a structure allegedly for shore protection at the end of the existing barangay road and the adjoining foreshore, and actually completed the building of a wall thereon, as shown in the pictures hereto attached and made an integral part hereof as ANNEX B.

6. This construction was in the guise of making a wharf, in cahoots with the defendant Barangay Chairman William B. Placa, Sr., who in turn issued a Certification granting a permit to construct a WHARF, which power is not vested in him but with the Philippine Ports Authority; a copy of the Certification dated 7 April 2001 is hereto attached and made an integral part hereof as ANNEX C.

7. Plaintiffs filed a Protest on 5 August 2001 against the construction of this structure on the foreshoreland before the Community Environment and Natural Resources Office, Tacloban City; a copy of the Protest is hereto attached and made an integral part hereof as ANNEX D. This protest fell into deaf ears.

8. Thus, on August 12, 2001, plaintiffs filed a case against defendants Mailim before the barangay lupon of Brgy. 88, Tacloban City, demanding for the removal of this illegal structure, but the lupon merely left the parties as they are , as reflected in the Minutes of the Meeting hereto attached and made an integral part hereof as ANNEX E.

8. The Office of the Tacloban City Engineer, through OIC City Engineer Concepcion Esperas, likewise sent a Notice of Violation to defendants Mailim on 19 March 2004, indicating therein that said defendants have no building/fencing permit and foreshore protection permit, and no permit for ground preparation and excavation, a copy of said Notice of Violation is hereto attached and made an integral part hereof as ANNEX F.

9. Despite all these demands, protests and administrative remedies exhausted by the plaintiff, the defendants Mailim were unperturbed to proceed and to complete the construction of a wall on the end of the street, which now practically blocks the public passage to the foreshore or to the sea and vice-versa. The defendants Mailim were over-confident that the construction of the subject illegal structure would not be stopped, because it had the blessings of the barangay chairman.

10. This portion of the barangay road and the foreshore where the illegal structure was built by defendants Mailim with the connivance of Barangay Chairman Placa have not been withdrawn from public servitude.

11. Such illegal structure now standing on the barangay road is a nuisance, as it obstructs or interferes with the free passage of the barangay road to the foreshore and to the sea.

12. Such nuisance, whether public or private, per se or per accidens, has greatly affected the neighborhood and hindered or impaired the use of the barangay road and the free access to the foreshore to the sea.WHEREFORE, it is respectfully prayed that, after due notice and hearing, judgment be rendered:1. Ordering the Tacloban City Engineers Office to demolish the illegal walls constructed by the defendants Mailim on the barangay road, which obstructed the free passage of the barangay road of Costa Brava, Brgy. 88, Tacloban City;2. Ordering the defendants Spouses Mailim and William Placa to reimburse the attorneys fees in the amount of P20,000.00 only; and

3. Cost of litigation.

4. Other relief and remedies just and equitable in the premises are also prayed for.RESPECTFULLY SUBMITTED. February 21, 2005 at Tacloban City.

LEO S. GIRON

Counsel for the Plaintiffs253 Avenida Veteranos, Tacloban City

Roll No. 37979

IBP Lifetime No. 00733

PTR No. 5803034; 1-3-05; Tacloban CityRepublic of the Philippines)

Province of Leyte

) SS

City of Tacloban

)

VERIFICATION AND CERTIFICATION

OF NON-FORUM SHOPPING

We, SPOUSES BAYANI BOB MONTECASTRO and HELEN MORENO MONTECASTRO, both of legal age and with post office address at Brgy. 88, Costa Brava, San Jose, Tacloban City, after having been first sworn according to law, hereby state:

We are the plaintiffs in the above-entitled case; We have caused the preparation of the foregoing Complaint; We have read it and the allegations therein are true and correct of our own personal knowledge or based on relevant and authentic records.

That We have not theretofore commenced any action or filed any claim or pleading involving the same or similar issues or subject matter in the Supreme Court, Court of Appeals, lower courts or administrative bodies and quasi-judicial agency and to the best of our knowledge, no such other action or claim is pending therein; and if there is such other pending action or claim, a complete statement of the present status thereof; and, if we should thereafter learn hereafter that the same or similar action or claim or pleading has been filed or is pending with the Supreme Court, Court of Appeals, lower courts, administrative bodies or quasi judicial agency; we shall undertake to report that fact within five (5) days from knowledge thereof to the court wherein this aforesaid complaint or initiatory pleading has been filed.

IN WITNESS WHEREOF, we have hereunto set our hands this 21 February 2005 at Tacloban City, Philippines.

HELEN MORENO MONTECASTRO BAYANI BOB MONTECASTRO Affiant

Affiant

SUBSCRIBED AND SWORN to before me this 21 February 2005 at Tacloban City, Philippines.

Doc.No. ____Page No. ____

Book No. 45SERIES OF 2005