Beruflich Dokumente
Kultur Dokumente
SUPREME COURT
Baguio City
THIRD DIVISION
G.R. No. 152364
AGUSTIN, E. P. | 1
VIII
That in a move to determine if the children and the
heirs of Basilisa Santos-Agustin, namely: Modesta
Agustin, Filemon Agustin, Venancia Agustin, Marcelina
Agustin, Paul Dalalo and Noel Dalalo who are the
successors of their mother the late Monica Agustin,
Gregorio Agustin and Bienvenido Agustin would follow
the line of thinking of their mother and grandmother
of Paul A. Dalalo and Noel A. Dalalo on the shares of
the lot and residential house erected on it, the
plaintiffs initiated a partition in the barangay court
where the lot is situated described in paragraph IV of
this complaint, but that the children of Basilisa
Santos-Agustin and her grandchildren Paul A. Dalalo
and Noel A. Dalalo refused and opposed the partition
claiming that they are the sole and exclusive owners
of the lot being that the lot is now titled in their
names, and hence there was no settlement as shown
by the certification of the barangay court hereto
attached as annex "A";
x x x x7
Respondents then prayed that petitioners' complaint be
dismissed. In their Counterclaim, respondents asked the court to
direct petitioners to pay reasonable compensation for the latter's
use of the disputed property, exemplary and moral damages,
attorney's fees, and costs of suit.
After the issues were joined and the pre-trial was terminated,
trial on the merits ensued.
On January 6, 2000, the MTCC rendered its Decision8 dismissing
the complaint and denying petitioners' prayer for partition.
IX
That plaintiffs now invoke the intervention of the
court to partition the lot in accordance with the law
on intestate succession and to partition the residential
house as specified below. x x x
x x x x5
Petitioners also prayed for the grant of attorney's fees, moral
and exemplary damages, and costs of suit.
Herein respondents filed their Answer with Counterclaim,6 raising
the following as their Special/Affirmative Defenses:
1. The subject parcel of land is owned exclusively by
the defendants as heirs of the late Basilisa Santos,
wife of Petronilo Agustin, who was the original
registered owner of the property evidenced by OCT
No. 20742; the plaintiffs never became owners of said
land. There was never any agreement between the
ascendants of the plaintiffs and defendants, neither is
there any agreement between the plaintiffs and
defendants themselves that in the ownership, the
plaintiffs have a share over the lot;
2. The defendants are the ones paying for the real
estate taxes of said land;
3. Some of the plaintiffs were able to stay on the
subject house because defendants' mother Basilisa
AGUSTIN, E. P. | 2
that may be allotted to Basilisa upon termination of their coownership; that PNB acquired ownership only of the share
pertaining to Basilisa; that when Basilisa bought back the
property from PNB, she simply re-acquired the portion pertaining
to her and simply resumed co-ownership of the property with
her siblings. Petitioners also contend that Basilisa's children did
not acquire ownership of the subject lot by prescription, and that
neither Basilisa nor respondents repudiated their co-ownership.
Anent the third assignment of error, petitioners argue that
Alejandra Lazaro, being a co-owner of the disputed parcel of
land and not simply a builder in good faith, is entitled to a
partition of the subject residential house.
At the outset, it bears to point out that it is wrong for petitioners
to argue that Basilisa's alleged sworn statement is a declaration
against interest. It is not a declaration against interest. Instead,
it is an admission against interest.1avvphi1
Indeed, there is a vital distinction between admissions against
interest and declarations against interest. Admissions against
interest are those made by a party to a litigation or by one in
privity with or identified in legal interest with such party, and are
admissible whether or not the declarant is available as a
witness.15 Declarations against interest are those made by a
person who is neither a party nor in privity with a party to the
suit, are secondary evidence, and constitute an exception to the
hearsay rule. They are admissible only when the declarant is
unavailable as a witness.16 In the present case, since Basilisa is
respondents' predecessor-in-interest and is, thus, in privity with
the latter's legal interest, the former's sworn statement, if
proven genuine and duly executed, should be considered as an
admission against interest.
A cursory reading of the subject sworn statement also reveals
that it refers to a parcel of land denominated as Lot No. 10678
while the property being disputed is Lot No. 10676.17 On this
basis, it cannot be concluded with certainty that the property
being referred to in the sworn statement is the same property
claimed by petitioners.
Having made the foregoing observations and discussions, the
question that arises is whether the subject sworn statement,
granting that it refers to the property being disputed in the
present case, can be given full faith and credence in view of the
issues raised regarding its genuineness and due execution.
The Court rules in the negative.
Settled is the rule that generally, a notarized document carries
the evidentiary weight conferred upon it with respect to its due
execution, and documents acknowledged before a notary public
have in their favor the presumption of regularity.18 However, this
presumption is not absolute and may be rebutted by clear and
convincing evidence to the contrary. 19
Moreover, not all notarized documents are exempted from the
rule on authentication.20 Thus, an affidavit does not
automatically become a public document just because it contains
a notarial jurat.21 The presumptions that attach to notarized
documents can be affirmed only so long as it is beyond dispute
that the notarization was regular.22
However, a question involving the regularity of notarization as
well as the due execution of the subject sworn statement of
Basilisa would require an inquiry into the appreciation of
AGUSTIN, E. P. | 3
and credit upon its face. Courts, administrative agencies and the
public at large must be able to rely upon the acknowledgment
executed before a notary public and appended to a private
instrument.34 Hence, a notary public must discharge his powers
and duties, which are impressed with public interest, with
accuracy and fidelity.35 A notary public should not notarize a
document unless the persons who signed the same are the very
same persons who executed and personally appeared before him
to attest to the contents and truth of what are stated therein.36
In the instant case, the notary public should have exercised
utmost diligence in ascertaining the true identity of the person
executing the said sworn statement. However, the notary public
did not comply with this requirement. He simply relied on the
affirmative answers of the person appearing before him attesting
that she was Basilisa Santos; that the contents of the sworn
statement are true; and that the thumbmark appearing on the
said document was hers. However, this would not suffice. He
could have further asked the person who appeared before him
to produce any identification to prove that she was indeed
Basilisa Santos, considering that the said person was not
personally known to him, and that the thumbmark appearing on
the document sought to be notarized was not affixed in his
presence. But he did not. Thus, the lower courts did not commit
any error in not giving evidentiary weight to the subject sworn
statement.
The second and third assigned errors proceed on the
presumption that petitioners are co-owners of the disputed
property. Since the Court has already ruled that the lower courts
did not err in finding that petitioners failed to prove their claim
that they were co-owners of the said property, there is no longer
any need to discuss the other assigned errors.
WHEREFORE, the petition is DENIED. The February 21, 2002
Decision of the Court of Appeals in CA-G.R. SP No. 63321 is
AFFIRMED.
SO ORDERED.
AGUSTIN, E. P. | 4
AAA testified that appellant is her father and BBB is her mother;
that appellant and BBB are married; that she is the fourth child
in a brood of five children born to appellant and BBB; and that
she resided with her family at XXX.7
AGUSTIN, E. P. | 5
Appellant then entered the nipa hut, woke her up, and started to
make sexual advances on her. She tried to resist appellants
onslaught but failed because appellant punched her in the
stomach. Appellant went on top of her and inserted his penis
into her vagina. After satisfying his lust, appellant warned her
not to tell anyone of the incident or he would kill her and the
rest of the family members.11
Upon being informed by EEE of the incidents, BBB, on 30 July
1998, accompanied AAA to the National Bureau of Investigation
(NBI) office at Taft Avenue, Manila, and reported the heinous
acts of appellant. AAA also executed a Sinumpaang Salaysay
regarding the incidents. Thereupon, appellant was arrested and
charged with rape.12
Dr. Umil narrated that she conducted a genital examination on
AAA upon the request of NBI Supervising Agent Rosalina EspinaChiong. Her findings as stated in her medico-legal report are: (1)
no evident sign of any extra-genital physical injuries noted on
the body of the subject at the time of the examination; and (2)
hymen, intact, but distensible, and its orifice wide (2.5 cm. in
diameter) as to allow complete penetration by an average-sized
adult Filipino male organ in full erection without producing
hymenal injury.13
The prosecution also adduced documentary evidence to buttress
the foregoing testimonies of prosecution witnesses, to wit: (1)
Sinumpaang Salaysay of AAA;14 (2) Medico-Legal Report
regarding AAA signed and issued by Dr. Umali;15 and (3) a letter
written by appellant in a Marlboro cigarette wrapper addressed
to AAA asking her forgiveness.16
For its part, the defense proffered the lone testimony of
appellant to refute the foregoing accusations.
Appellant divulged that AAA is his daughter and BBB is his wife;
that he did not rape AAA on 8 March 1995; that a birthday
celebration for one of his children, CCC, was held at their house
on 8 March 1995 which was attended by several friends; that he
did not rape AAA in 1996, 1997, and on 24 July 1998; that BBB,
AAA and his other children resided with him in their house at
XXX from 8 March 1995 to 24 July 1998; that he had a drinking
spree with Rey and Benito at nighttime during the said periods;
and that he wrote a letter to AAA but denied that it was the
same one presented by the prosecution. 17
The defense also offered as its sole documentary evidence the
Medico-Legal Report issued and signed by Dr. Umil.
After trial, the RTC rendered a Decision finding appellant guilty
of rape as alleged in the four informations. In Criminal Cases No.
115031-H and No. 115032-H, the Court imposed on appellant
the penalty of death. In Criminal Cases No. 115033-H and No.
115034-H, appellant was sentenced to reclusion perpetua. The
dispositive portion of the decision reads:
WHEREFORE, this Court finds accused Juanito dela
Cruz y Rivera, as follows:
1. In Criminal Case No. 115031-H, GUILTY as
principal of the offense of qualified rape penalized
under then Article 335 of the Revised Penal Code, as
amended by R.A. 7659, and sentences him to suffer
the supreme penalty of DEATH. Accused is further
ordered to pay the offended person, AAA, the amount
of Seventy-Five Thousand Pesos (P75,000.00) as civil
AGUSTIN, E. P. | 6
II.
Q.
A.
I was struggling and he boxed me on my
stomach.
Q.
And, after that raped (sic) incident, what
happened?
A.
Q.
Was that the first time that your father raped
you?
A.
No, mam.
Q.
A.
Q
Why do you recall March 8, 1995 as the first
time that your father raped you?
Q.
Now, on July 24, 1998 at about 1:00 in the
morning, do you remember where [you were]?
A
That time I was at my work and I went home
because my brother is (sic) celebrating his birthday.
A.
Yes, mam.
Q
When did that rape that happened on March 8,
1995?
Q.
A.
Q.
A.
At XXX.
xxxx
Q
Now, on March 8, 1995 when your father raped
you, what did you do, if any?
Q.
Do you recall of an unusual incident that
happened on July 24, 1998 at your house?
A
I cannot do anything, mam, because he get (sic)
what he wants.
A.
Yes, mam.
COURT:
Q.
Q
When you were raped on March 8, 1995, what
did you do when you were being raped?
A.
A.
Q.
A.
Q.
When he inserted his penis into your vagina,
what did you do?
A.
I was not able to do anything because he
already hurt me.
A
I was struggling away from him but he harmed
me.
FISCAL:
Q
He boxed me on my stomach.
Q
And, after that raped (sic) incident, what
happened?
A
Q
Did you not try to tell your mother about that
incident?
AGUSTIN, E. P. | 7
No, mam.
Q.
A.
Q.
Why?
A.
I cannot remember, mam, what I remember
was only the last raped (sic).
COURT:
xxxx
Q.
What about in the year 1996, was there an
unusual incident that happened between you and
your father?
Q.
But, how many times have you been raped in
1997?
A.
A.
Q.
Q.
A.
A.
xxxx
Q.
A.
Yes, mam.
Q.
Now, madam witness, in the first occasion that
you were raped by your father, did he tell you
anything before raping you?
Q.
If you can recall, how many times did he rape
you in the year 1996?
A.
xxxx
A.
None, sir.
Q.
In other words, you would like to tell the court
that he does not say anything he just raped you
without saying anything?
A.
First, he was not able to say anything but after
he raped me he said something.
Q.
A.
No, mam.
Q.
A.
She (sic) told me not to report the incident
because she (sic) will kill my family.
A.
Yes, mam.
Q.
A.
Q.
Q.
And, where did these six (6) rapes that
happened in 1996 took place?
xxxx
A.
Q.
Also in XXX?
Q.
You did not tell (sic) your father why he is doing
it to you?
A.
Yes, mam.
A.
xxxx
xxxx
Q.
What about in 1997, do you recall of an
unusual incident that happened between you and
your father?
Q.
You said that you were punched in the stomach
by your father prior to the sexual attacked (sic) on
you on July 24, 1998, isnt it? Other than being
punched at the stomach, what else did he do, if any?
A.
Yes, mam.
A.
Sinasampal po.
AGUSTIN, E. P. | 8
Q.
How did you describe the pain when you were
hit at the stomach?
A.
Q.
A.
Yes, sir.
Q.
And, he did it with the clench[ed] fist, is that
correct?
A.
Yes, sir.
Q.
A.
Appellant further claims that AAAs testimony does not jibe with
her Sinumpaang Salaysay and with the testimony of Dr. Umil as
shown by the following: (1) In her Sinumpaang Salaysay, AAA
stated that she was raped by appellant on 8 March 1995 and on
24 July 1998, while in her court testimony she revealed that she
was raped by appellant six times in 1996 and several times in
1997; and (2) AAA divulged that appellant punched her in the
stomach and slapped her during the incidents but Dr. Umil
testified that no contusions, abrasions or other physical injuries
were found on AAAs body during the latters physical
examination.34
We have steadfastly ruled that the alleged inconsistencies
between the testimony of a witness in open court and his sworn
statement are not fatal defects to justify a reversal of judgment
of conviction. Such discrepancies do not necessarily discredit the
witness since ex-parte affidavits are almost always incomplete.
Sworn statements taken ex-parte are generally considered to be
inferior to the testimony given in open court.35
The fact that Dr. Umil found no contusions or abrasions on AAAs
body during the latters physical examination does not render
improbable the occurrence of rape because settled is the
doctrine that absence of external signs or physical injuries does
not negate the commission of rape.36
Anent the second assignment of error, appellant argues that it is
improbable for appellant to rape AAA in the presence of the
latters siblings; that the informations in Criminal Cases No.
115032-H and 115033-H which allege that the rapes were
committed "during the period January to December 1996," and
"during the period January to December 1997," respectively, are
defective because it does not specifically state the exact dates of
the commission of rapes; that AAA is not a credible witness
because she did not immediately inform BBB nor the police
authorities of the incidents; that the failure of AAA to
immediately report the incidents implies that no rapes were
committed and that the sexual contacts between him and AAA
were voluntary and consensual; that AAAs testimony that she
reported the 8 March 1995 incident to EEE is unbelievable
because if such was true then the instant case would have been
filed earlier and the subsequent rapes could have been avoided;
that he never admitted having written the letter on a Marlboro
cigarette wrapper to AAA and thus the said letter cannot be used
as evidence against him because its due execution and
authenticity was not proven; and that the qualifying
circumstance of minority of AAA during the incidents was not
proven because the latters birth certificate was not presented in
court.37
Lust is no respecter of time and place. Thus, we held that rape
can be committed inside a house where there are other
occupants, and even in the same room where other members of
the family are also sleeping.38 It is not impossible, nor incredible,
for AAAs siblings to be in deep slumber and not to be awakened
while appellant was raping her.39
AGUSTIN, E. P. | 9
Criminal Cases No. 115031-H and 115032-H. The said law states
that the death penalty shall be imposed if the rape victim is a
minor and the offender is a parent. The qualifying circumstances
of minority of the victim and the latters relationship with the
offender must be alleged and proven to warrant the imposition
of death penalty.50
The informations specifically alleged that AAA was a minor when
she was raped by appellant. Nonetheless, the prosecution failed
to prove such allegation with sufficient evidence.
AAA solely testified that she was fifteen years old when appellant
raped her on March 1995, and sixteen years old when appellant
defiled her again six times during the period of January to
December 1996.51 Appellant neither denied nor objected to the
said testimony of AAA.
In People v. Tabanggay,52 a case almost identical herein, we
held as insufficient evidence of minority the bare testimony of
the two rape victims, who were sisters, that they were 13 and
14 years of age, respectively, when their father raped them. We
emphasized therein that there must be independent evidence
proving the age of the victims other than their own testimonies
and the absence of denial by the accused. The victims original
or duly certified birth certificate, or baptismal certificate, or
school records would suffice as competent evidence of their age.
The prosecution presented a photocopy of one of the victims
birth certificate but we gave no probative value to it because it
was neither duly certified nor formally offered in evidence. In
conclusion, we ruled therein that the prosecution failed to prove
the minority of the rape victims.
Applying the foregoing jurisprudence to the case at bar, the bare
testimony of AAA as to her age is not sufficient proof that she
was a minor when appellant raped her on the given dates. There
must be independent evidence showing her minority other than
her bare testimony and the absence of denial by the appellant.
The independent proof may consist of her original or duly
certified birth certificate, or her baptismal certificate or school
records.
A photocopy of AAAs birth certificate is included in the records
of the present case.53 Nevertheless, the same was neither
properly identified nor formally offered in evidence. Hence, no
probative value can be given to it. Aside from the said birth
certificate, no other documentary evidence was adduced to
prove the age of AAA.
With respect to appellants failure to object on the aforesaid
testimony of AAA, we decreed in People v. Pruna,54 that the
failure of the accused to object to the testimonial evidence
regarding the rape victims age shall not be taken against him.
In People v. Tipay55 and People v. Pecayo, Sr.,56 we also
pronounced that the lack of denial on the part of accused as
regards the rape victims age does not excuse the prosecution
from discharging its burden of proving the minority of the rape
victim. As the qualifying circumstance of minority alters the
nature of the crime of rape and increases the penalty thereof, it
must be proved with equal certainty and clearness as the crime
itself.57
Since the qualifying circumstance of AAAs minority was not duly
proven by the prosecution, appellant should be held liable only
for simple rape in Criminal Cases No. 115031-H and 115032-H.58
Consequently, the penalty therein should be reduced to reclusion
perpetua pursuant to Article 335 of the Revised Penal Code, as
amended by Republic Act No. 7659.59
AGUSTIN, E. P. | 10
AGUSTIN, E. P. | 11
1. Separation pay
P 74,100.00
2. Backwages
P 27,550.00
3. Unpaid wages
P 4,940.00
Total
P 106,590.00
AGUSTIN, E. P. | 12
16
AGUSTIN, E. P. | 13
Neither was there any note to that effect by the server written
on the notice itself.
The law mandates that it is incumbent upon the employer to
prove the validity of the termination of employment.32 Failure to
discharge this evidentiary burden would necessarily mean that
the dismissal was not justified and, therefore, illegal.33
Unsubstantiated claims as to alleged compliance with the
mandatory provisions of law cannot be favored by this Court. In
case of doubt, such cases should be resolved in favor of labor,
pursuant to the social justice policy of our labor laws and
Constitution.34
The burden therefore is on respondent to present clear and
unmistakable proof that petitioner was duly served a copy of the
notice of termination but he refused receipt. Bare and vague
allegations as to the manner of service and the circumstances
surrounding the same would not suffice. A mere copy of the
notice of termination allegedly sent by respondent to petitioner,
without proof of receipt, or in the very least, actual service
thereof upon petitioner, does not constitute substantial
evidence. It was unilaterally prepared by the petitioner and,
thus, evidently self-serving and insufficient to convince even an
unreasonable mind.
We cannot overemphasize the importance of the requirement on
the notice of termination, for we have ruled in a number of
cases35 that non-compliance therewith is tantamount to
deprivation of the employees right to due process.
This is not the first time that the Court affirmed that there was
just cause for dismissal, but held the employer liable for noncompliance with the procedural due process. In Agabon v.
National Labor Relations Commission, 36 we found that the
dismissal of the employees therein was for valid and just cause
because their abandonment of their work was firmly established.
Nonetheless, the employer therein was held liable because it
was proven that it did not comply with the twin procedural
requirements of notice and hearing for a legal dismissal.
However, in lieu of payment of backwages, we ordered the
employer to pay indemnity to the dismissed employees in the
form of nominal damages, thus:
The violation of the petitioners right to statutory due process by
the private respondent warrants the payment of indemnity in the
form of nominal damages. The amount of such damages is
addressed to the sound discretion of the court, taking into
account the relevant circumstances. We believe this form of
damages would serve to deter employers from future violations
of the statutory due process rights of employees. At the very
least, it provides a vindication or recognition of this fundamental
right granted to the latter under the Labor Code and its
Implementing Rules.37
The above ruling was further clarified in Jaka Food Processing
Corporation v. Pacot.38
In Jaka, the employees were terminated because the corporation
was financially distressed. However, the employer failed to
comply with Article 283 of the Labor Code which requires the
employer to serve a written notice upon the employees and the
Department of Labor and Employment (DOLE) at least one
month before the intended date of termination. We first
distinguished the case from Agabon, to wit:
The difference between Agabon and the instant case is that in
the former, the dismissal was based on a just cause under
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AGUSTIN, E. P. | 28
Date
April 29, 1978
No date
April 24, 1978
April 24, 1978
No date
Amount
P 26,000
48,100.0
48,100.0
150,000.
150,000.
225,830.
P 699,93
The GV itself must carry with it the following: the RSE, ROA,
Program of Work, Detailed Estimates, Request for Sealed
Quotations, Abstract of Sealed Quotations, PO, Delivery
Receipts, Request for Inspection, Record of Inspection, Test
Reports, and Tax Clearance of the supplier.
01-780606
01-780641
01-780682
01-780684
01-780694
Program of Work
Restoration of Shoulders, Tagbiliaran North Road
Junction TNR-Airport Road, Junction TNR-Wharf Roa
TCSR
Restoration of Shoulders, Tagbilaran North Road
Junction TNR-Wharf Road
Restoration of Shourders, Tagbilaran Corella-Sikatuna R
Restoration, Totulan-Ubos-Dauis Bridge Approaches
Restoration, Totulan, Ubos-Dauis Bridge Approaches
Restoration, Junction, Tagbilaran East Road-Dauis
Central Road Shoulders and Bridge Approaches
TOTAL
AGUSTIN, E. P. | 29
All the accused pleaded not guilty to the charges against them.
Joint trial thereafter ensued. In a decision dated December 28,
1979, the Sandiganbayan acquitted accused Sayson, Budget
Examiner II and Quiroz, the employee of accused contractor Tiu;
and convicted the rest of the accused, including Bolotaulo, of
estafa thru falsification of official and commercial documents to
six years of prision correccional to ten years, eight months and
one day of prision mayor each case with the accessories
provided by law, pay the fine of P3,500.00 for each count and
ordered them to pay certain amounts.14
That, in or about and during the period from the months of April
to June, 1978, in the City of Tagbilaran, Philippines, and within
the jurisdiction of this Honorable Court, the public officials, who
by reason of the duties of their office, are accountable officers,
and conspiring and conniving among themselves, as well as with
their private party co-accused, after having falsified or caused to
have falsified Letters of Advice of Allotment No. 107-780-05-78
and No. 107-780-014-78, both dated April 24, 1978 and SubAdvices of Cash Disbursement Ceiling No. 193-78 dated April 28,
1978 and No. 222-78 dated May 2, 1978, which are all public
documents, whereby said accused made it appear that an
amount of Three Hundred Thousand (P300,000.00) had been
lawfully allocated for the City of Tagbilaran from the MPH
Regional Highway Office No. VII, Cebu City, and made available
AGUSTIN, E. P. | 30
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In fact, the RSEs are not even in accord with the program of
work. While petitioner recommended the approval of the three
programs of work each calling for the use of 3,123 cubic meters
of selected borrow (Item 108) as well as the detailed estimates
which also called for the use of selected borrow, the three RSEs
which petitioner prepared called for the use of anapog binder.
No explanation was offered as to why there was such a
discrepancy.
Notably, petitioner Bolotaulo recommended for approval three
programs of work which all cost not more than P50,000.00 each.
As established by the testimony of prosecution witness, Miguel
V. Bulac, this was so since petitioner Bolotaulos co-accused City
Engineer Castillo could not approve program of work exceeding
P50,000.00 because in excess of that amount, the program of
work has to be approved by the Regional Director. 33 In fact,
Engr. Castillo admitted that program of work in excess of
P50,000.00 needs the approval of the region.34 As we earlier
stated, we affirmed the conviction of City Engineer Castillo.35
Petitioner Bolotaulo signed three GVs certifying that the
expenses are necessary, lawful and incurred under his direct
supervision, and that the price is just and reasonable and not in
excess of the current rates in the locality. Attached to these GVs
as supporting documents are the programs of work, the RSEs,
the requests for sealed quotations and the purchase orders
among others. He signed the GVs despite the fact that the RSEs
antedated the programs of work. He could not have failed to
notice that there was only one set of request for sealed
quotation for the total of 9,369 cubic meters of anapog binders
and one purchase order which supported the three GVs all for
amounts less than P50,000.00 each to the same contractor/
supplier James Tiu. The issuance of three GVs for amounts less
than P50,000.00 each was resorted to since a higher amount
would have required the vouchers to be forwarded to the
Regional Auditor for action and review. The RSEs and the GVs
had been split into uniform amounts of not more than
P50,000.00 each which is a clear case of splitting of requisitions
and general vouchers prohibited by the Commission on Audit
Circular No. 76- 41 dated July 30, 1976.
As defined by the Circular, "splitting" in its literal sense means
dividing or breaking up into separate parts or portions, or an act
resulting in a fissure, rupture, breach. Within the sphere of
government procurement, splitting is associated with
requisitions, purchase orders, deliveries and payments.
Splitting may be in the form of (1) Splitting of Requisi3tions
which consists in the non-consolidation of requisitions for one or
more items needed at about the same time by the requisitioner;
(2) Splitting of Purchase orders which consists in the issuance of
two or more purchase orders based on two or more requisitions
for the same or at about the same time by the different
requisitioners; and (3) Splitting of payments which consists in
making two or more payments for one or more items involving
one purchase order. These forms of splitting are resorted to in
AGUSTIN, E. P. | 32
In the same vein, the record is clear that, prior to the pre-audit
of all GVs here involved, defects and irregularties respecting the
bidding conducted in connection with the procurement of the
materials purchased were brought home to the knowledge of all
concerned, particularly the District Auditor. A letter was actually
written by accused Lopea to accused Castillo officially bringing
to his attention the defects and irregularities aforesaid (Exhibit
G-22). Another letter was also written by accused Lopea to
accused Castillo returning the GVs (Exhibits D, E and H) because
of defects like splitting, lack of ROA, and others. And yet,
without anything being done to correct the defects and/or supply
the deficiencies except the mere explanation of accused Castillo
that the defects are mere clerical errors or that the objections
are tardy, the GVs involved herein were nevertheless eventually
passed on pre-audit. Since the bidding is defective, necessarily,
the certification as to the justness and reasonableness of the
price and that it is not in excess of the current price in the
locality becomes a falsehood.
We likewise find no merit in petitioners claim that the
Sandiganbayan erred in finding the existence of conspiracy in
the alleged commission of the crime. We are indeed convinced
that conspiracy has been clearly established by the evidence
presented by the prosecution. The whole scheme started with
the issuances of fake LAAs, which give the authority to obligate,
and the SACDCs, the authority to disburse funds, to the
Tagbilaran CEO for the alleged purpose of prosecuting certain
projects. The Tagbilaran Office which was fully aware of the fake
LAAs and SACDCs, made it appear that there were valid
requisitions, public bidding and purchase order which all turned
out to be also falsified. General vouchers were prepared and
checks pursuant thereto were issued in payment to the
supplier/contractor for materials which turned out to be short
delivered or not delivered at all. As correctly held by the
Sandiganbayan:
AGUSTIN, E. P. | 33
Cagayan during the May 2004 elections and that the case was
instituted by his political opponents in order to derail his
candidacy. The Antipordas admitted that Atty. Tamargo was
their political rival for the mayoralty post of Buguey. Atty.
Tamargo had been defeated twice by Lloyd and once by Licerio.
Before the killing, Atty. Tamargo filed an election case against
Lloyd and a kidnapping case in the Sandiganbayan against
Licerio. However, they claimed that both cases were dismissed
as Lloyd emerged as the winner in the elections and Licerio was
acquitted by the Sandiganbayan.13
During the preliminary investigation, respondent Licerio
presented Columnas unsolicited handwritten letter dated May 3,
2004 to respondent Lloyd, sent from Columnas jail cell in
Manila. In the letter, Columna disowned the contents of his
March 8, 2004 affidavit and narrated how he had been tortured
until he signed the extrajudicial confession. He stated that those
he implicated had no participation in the killings. 14 Respondent
Licerio also submitted an affidavit of Columna dated May 25,
2004 wherein the latter essentially repeated the statements in
his handwritten letter.
Due to the submission of Columnas letter and affidavit, the
investigating prosecutor set a clarificatory hearing, to enable
Columna to clarify his contradictory affidavits and his unsolicited
letter. During the hearing held on October 22, 2004, Columna
categorically admitted the authorship and voluntariness of the
unsolicited letter. He affirmed the May 25, 2004 affidavit and
denied that any violence had been employed to obtain or extract
the affidavit from him.151avvphi1
Thus, on November 10, 2004, the investigating prosecutor
recommended the dismissal of the charges. This was approved
by the city prosecutor.
Meanwhile, in another handwritten letter addressed to City
Prosecutor Ramon Garcia dated October 29, 2004, Columna said
that he was only forced to withdraw all his statements against
respondents during the October 22, 2004 clarificatory hearing
because of the threats to his life inside the jail. He requested
that he be transferred to another detention center.16
Aggrieved by the dismissal of the charges, petitioner filed an
appeal to the Department of Justice (DOJ).17 On May 30, 2005,
the DOJ, through then Secretary Raul M. Gonzalez, reversed the
dismissal and ordered the filing of the Informations for murder.18
He opined that the March 8, 2004 extrajudicial confession was
not effectively impeached by the subsequent recantation and
that there was enough evidence to prove the probable guilt of
respondents.19 Accordingly, the Informations were filed and the
cases were consolidated and assigned to the RTC of Manila,
Branch 29.20
However, on August 12, 2005, Secretary Gonzales granted the
Antipordas motion for reconsideration (MR) and directed the
withdrawal of the Informations.21 This time, he declared that the
extrajudicial confession of Columna was inadmissible against
respondents and that, even if it was admissible, it was not
corroborated by other evidence.22 As a result, on August 22,
2005, the trial prosecutor filed a motion to withdraw the
Informations. On October 4, 2005, Secretary Gonzalez denied
petitioners MR.
The RTC, through Judge Cielito Mindaro-Grulla, granted the
motion to withdraw the Informations in an order dated October
26, 2005.23 Petitioner filed an MR but the judge voluntarily
inhibited herself without resolving the same. The cases were re-
AGUSTIN, E. P. | 34
Res inter alios acta alteri nocere non debet. The rule on res inter
alios acta provides that the rights of a party cannot be
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Virgilio
Broadcasting
City,
Capitol
Balaguer
Corporation
Hills
(signed)
REX G. RICO
cc:
Mr.
Francisco
Board of Administrators, IBC-13
N.
Villanueva
ATTY. JIMENEZ:
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