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Republic of the Philippines

COURT OF APPEALS
CEBU

CELSO JOMENTO,
Petitioner,

- versus - CA G.R. SP No. 05644

HON. FRANCISCO T. DUQUE,


in his capacity as Chairman of
the CIVIL SERVICE
COMMISSION,

Respondent.
x---------------------------------------
--- x

PETITIONERS MEMORANDUM

Petitioner CELSO JOMENTO, by counsel, most


respectfully submits this Memorandum, in compliance with
the Resolution of the Honorable Court dated July 18, 2012, in
further support of the Petition for Certiorari (hereinafter the
Petition for brevity).

Petitioner, through counsel, received on August 2, 2012


a copy of the Honorable Courts Resolution dated July 18,
2012, which gave Petitioner fifteen (15) days from notice
within which to file his memorandum. Thus, Petitioner has
until August 17, 2012 within which to submit his
memorandum. Petitioner filed a Motion for Extension of
Time to File Memorandum dated August 13, 2012, whereby
Petitioner prayed for an additional period of thirty (30) days,
or until September 16, 2012 within which to file his
memorandum. Petitioner respectfully manifests that the
instant memorandum is timely filed.

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SUBJECT INDEX
Page
No.

(1) Statement of Facts/ Case 3

(2) Arguments 3

A. Respondent Commission erred in finding 3


Petitioner guilty of the offense of
dishonesty notwithstanding the absence
of substantial evidence to support such
conclusion.

1. Respondent Commission erred when it 8


ruled that Petitioner caused an
impersonator to take for and in his
behalf the Career Service Professional
Examinations conducted on July 30,
1989 in Bacolod City.

2. Respondent Commission erred when it


concluded that it was not Petitioners
photograph that was attached on the
Picture Seat Plan pertaining to the July
30, 1989 Career Service Professional
Examination.

3. Respondent Commission erred when it


concluded that it was not Petitioners
signature that was affixed on the
Picture Seat Plan pertaining to the July
30, 1989 Career Service Professional
Examination.

4. Respondent Commission erred when it


concluded that Petitioners signature on
the Picture Seat Plan pertaining to the
July 30, 1989 civil service examination
was a forgery based on its own opinion
only.

5. Respondent Commission erred when it


disregarded the positive eyewitness
testimonies of the proctors categorically
declaring under oath that it was

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Petitioner who took the examination.

6. Respondent Commission erred in relying


on documentary evidence to support its
finding of guilt when the persons who
prepared the documentary evidence
relied on by Respondent Commission
testified that it was Petitioner who took
the examination.

B. The Resolution 10-0717 dated April 6,


2010 affirmed by Resolution No. 10-
00390 dated November 22, 2010 of
Respondent Commission is not
supported by the applicable law and
jurisprudence on the matter.

(3) List of Authorities 28

A. Table of Cases 28

B. Table of Statutes 31

(4) Relief 32

STATEMENT OF FACTS/CASE

On July 30, 1989 at 7:00 a.m., Petitioner personally


went to the UNO-R Criminology Building, Room 22-11 to take
the scheduled Career Service Professional Examination.
Ms. Helen P. Apellido (now Taclobos) was assigned as
the Room Examiner/Proctor in that examination, specifically
at Room 22-11, where the Petitioner was listed as one of the
examinees.
She was assisted at that time by another Room
Examiner, Ms. Lennie Padilla and Supervising Examiner, Ms.
Julieta Tabino, to see to it that the integrity of the
examination would be unquestionable.
The examiners compared the names of the examinees
against the Admission Slips that they hold, and their pictures

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in the Picture Seat Plan against their actual appearance and
looks.
After a meticulous and exhaustive examination and
determination that the pictures and the examinees are the
same persons, the examiners allowed the examinees to get
inside the examination room. After the examinees were
seated, the pictures of the examinees were reexamined
against the actual physical appearances and features of the
examinees, after which their respective pictures were then
attached to the Picture Seat Plan.
Now and then, the examiners would make thorough and
exhaustive rounds to make certain that the pictures of the
respective examinees correspond to the persons actually
taking the examination.
Petitioner underwent the same rigorous procedure the
examiners carefully examined Petitioner, determined that he
was indeed the person appearing on the picture in the
Picture Seat Plan, and was the same person who affixed his
signature in the Picture Seat Plan.
Petitioner took this examination at Room 22-11 of the
Criminology Building of the University of Negros Occidental
Recoletos (UNO-R), Bacolod City, under the strict supervision
of the personnel of the Civil Service Commission and under
the unflinching watchful eye and assistance of military men
in the vicinity.
Petitioner was thus extremely surprised when,
sometime in the year 2000 or eleven years later, he was
made the subject of a complaint alleging that he caused
another person to take the civil service examination on July
30, 1989.
Petitioner was exonerated of the unjustified accusation
when the CSCRO dismissed the administrative case against

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him for insufficiency of evidence through Decision dated July
31, 2000.
Subsequently, sometime in 2004, another undated
letter complaint was filed against Petitioner by a certain
Jose Delos Santos, alleging that Petitioner caused another
person to take the July 30, 1989 civil service examination on
his behalf. Notwithstanding that no additional evidence was
submitted since the filing of the first complaint in the year
2000, the unverified complaint of Jose Delos Santos was
made the basis of the Formal Charge dated May 30, 2005
against Petitioner for dishonesty, and subsequently, the Civil
Service Commission Regional Office VI (CSCRO VI) Decision
dated August 13, 2009. An original duplicate copy of the
Formal Charge dated May 30, 2005 is hereto attached as
Annex C and is made an integral part hereof.
It must be emphasized that as the records of this case
will reveal, the alleged complainant Jose De Los Santos
was never presented as a witness to attest under oath to the
truth of the accusations in his complaint, nor cross-examined
to test the truthfulness and credibility of his allegations.
Petitioner submitted his Motion to Dismiss dated July
16, 2005, which served as his counter-affidavit/sworn
statement to the Formal Charge. (Annex D of the Petition
for Certiorari)
Several formal investigative hearings were conducted
by the CSCRO VI through hearing officer Atty. Cherry dela
Cruz. During the formal investigative hearings, only
Petitioner presented the testimonies of the examiners and
supervisors who conducted the July 30, 1989 examination.
All three witnesses consistently testified under oath that it
was Petitioner himself who took the examination on July 30,
1989. The prosecution, on the other hand, presented no

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witnesses at all to substantiate the allegations in the Formal
Charge.
After the hearings, both the prosecution and the
defense submitted their respective Formal Offer of Exhibits.
Thereafter, the parties were required by the CSCRO VI to
submit their respective memoranda. Original duplicate
copies of the Formal Offer of Exhibits dated April 18, 2006
submitted by Petitioner and the Formal Offer of Exhibits
dated December 1, 2005 of the prosecution are hereto
attached as Annexes E and F, respectively, and are
made integral parts hereof. An original duplicate copy of
Petitioners Memorandum dated May 31, 2006 is also
attached to this Petition as Annex G and is made an
integral part hereof.
The CSCRO VI rendered a Decision dated August 13,
2009, finding Petitioner guilty of Serious Dishonesty and
dismissing him from the service. (Annex H of the Petition
for Certiorari)
Petitioner filed a Motion for Reconsideration on October
1, 2009.
On November 23, 2009, the CSCRO VI promulgated a
Decision denying Petitioners Motion for Reconsideration.
(Annex I of the Petition for Certiorari)
Petitioner filed an appeal with the Civil Service
Commission in accordance with Sections 43 and 46 of the
Uniform Rules on Administrative Cases in the Civil Service, to
appeal the Decision dated November 23, 2009, which
affirmed the Decision dated August 13, 2009 rendered by
the CSCRO VI.
The Honorable Commission denied Petitioners appeal
through Resolution No. 10-0717 dated April 6, 2010. (Annex
____ of the Petition for Certiorari)

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Petitioner filed a Motion for Reconsideration of
Resolution No. 10-0717 dated April 6, 2010, which was
denied by the Honorable Commission through Resolution
No. 10-00390 dated November 22, 2010. (Annex ____ of the
Petition for Certiorari)
Hence, this appeal.

ARGUMENTS

A. Respondent Commission erred in finding


Petitioner guilty of the offense of dishonesty
notwithstanding the absence of substantial
evidence to support such conclusion.

The Honorable Commission in its Resolution No. 10-


0717 dated April 6, 2010 declared that:

It is well-established in jurisprudence that


findings of fact of administrative agencies and quasi-
judicial bodies, which have acquired expertise and
competence in matters which fall within their
jurisdiction, when supported by evidence, are
accorded respect and finality by the courts.

However, it must be emphasized that findings of fact of


the Commission are not supported by the evidence on
record. The evidence on record clearly prove the innocence
rather than the guilt of Petitioner of the charges against him.
The Honorable Commissions finding of guilt is largely
anchored upon the prosecutions subjective opinion that the
picture and signature affixed on the Picture Seat Plan
pertaining to the Career Service Examination conducted on
July 30, 1989 was not the picture and signature of Petitioner.
We respectfully submit that to find the Petitioner guilty
on the basis of mere opinion, which in turn was based on a
perfunctory comparison of pictures and sample signatures
would result to a grave injustice, considering that there

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exists on record strong evidence proving Petitioners
innocence of the charge against him.
The Honorable Commission further declares in its
Resolution No. 10-0717 dated April 6, 2010 that:
It should be emphasized that the Petitioner
cannot rely on what he perceives to be weakness of the
evidence by the other party, the CSCRO No. VI, as the
same has presented substantial evidence which is the
only proof required in administrative cases.

While the evidence of the prosecution is weak,


Petitioner does not merely rely on the weakness of the
evidence of the prosecution, but himself presents strong,
credible and substantial evidence that supports his
exoneration of the charges against him.

It must be emphasized that in administrative


proceedings, the burden of proof to show that Petitioner
committed the acts complained of rests on the prosecution.
(Lorena vs. Encomienda, 302 SCRA 632 (1999); Cortez
vs. Agcaoili, 294 SCRA 423 (1998)) It is not the duty of the
defense to disprove what the prosecution failed to prove.
(Artuz vs. CA (365 SCRA 247))
Petitioner respectfully submits that the prosecution in
the proceedings before the CSCRO VI has failed to discharge
such burden, as it failed to prove the fact that Petitioner
caused another person to take the civil service examination
on his behalf. The prosecution offered no evidence other
than its own conclusion which was derived from a
perfunctory comparison of Petitioners picture and signature
on the Picture Seat Plan and sample pictures and signatures
of the Petitioner. Such opinion does not constitute the
substantial evidence required in administrative proceedings
to support a finding of guilt on the part of Petitioner.

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On the other hand, Petitioner offered overwhelming
evidence to prove his innocence of the charge against him.
Petitioner had unequivocably and categorically testified
that he personally took that Career Service Professional
Examination conducted last July 30, 1989; that the picture
and the signature appearing in the Picture Seat Plan that he
submitted are genuinely his own; and that he took this
examination at Room 22-11 of the Criminology Building of
the University of Negros Occidental Recoletos (UNO-R),
Bacolod City, under the strict supervision of the personnel of
the Civil Service Commission and under the unflinching
watchful eye and assistance of military men in the vicinity.
He further presented no less than the three Civil
Service Commission personnel who actually supervised and
proctored the examination. These witnesses gave their
candid, straight-forward, uncompromising and unreserved
testimonies to this effect: Ms. Helen P. Apellido-Taclobos was
assigned as the Room Examiner/Proctor in that examination,
specifically at Room 22-11, where the Petitioner was listed as
one of the examinees. She was assisted at that time by
another Room Examiner, Ms. Lennie Padilla and Supervising
Examiner, Ms. Julieta Tabino, to see to it that the integrity of
the examination would be unquestionable. Mrs. Apellido-
Taclobos testified that as examiners, they exercised extreme
caution in comparing the names of the examinees against
the Admission Slips that they hold, and their pictures against
their actual appearance and looks. She further testified that
only after a meticulous and exhaustive examination and
determination that the pictures and the examinees are the
same had the examiners allowed the examinees to get
inside the examination room. That again a re-examination of
the pictures of the examinees against the actual physical

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appearances and features were made when these
examinees are now seated, after which their respective
pictures were then attached in the Picture Seat Plan. Now
and then, the examiners would make thorough and
exhaustive rounds to make certain that the pictures of the
respective examinees would correspond to the persons
actually taking the examination. Mrs. Apellido-Taclobos
categorically testified that Petitioner underwent the same
rigorous procedure the examiners carefully examined
Petitioner, determined that he was indeed the person
appearing on the picture in the Picture Seat Plan, and was
the same person who affixed his signature in the Picture Seat
Plan. If she had any doubts at all that it was not Petitioner,
she could have driven him out of the room. She stated
without a cloud of doubt that it was Petitioner, not an
impostor, who personally appeared before them on July 30,
1989, and that it was Petitioner who actually took the civil
service examination on the same date. (Affidavit of Helen P.
Apellido-Taclobos dated July 16, 2005 attached as Exhibit 1
of the Formal Offer of Exhibits dated Aril 18, 2006, which is
attached as Annex E to the Petition for Certiorari.)
Ms. Lennie Padilla corroborated the testimony of Mrs.
Apellido-Taclobos. She likewise unreservedly declared with
absolutely certainty that it was Petitioner Celso Jomento, and
no other, whom she allowed to take the civil service
examination she proctored on July 30, 1989 at UNO-R and
whom she admitted only after a careful scrutiny of his
picture and person was done. (Affidavit of Lennie O. Padilla
dated July 4, 2005 attached as Exhibit 2 of the Formal Offer
of Exhibits dated Aril 18, 2006, which is attached as Annex
E to the Petition for Certiorari.)

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Ms. Julieta M. Tabino a retired Principal of the Negros
Occidental Provincial High School (NOHS) under oath stated
in her Affidavit, which affidavit was admitted by the
prosecution, that in that CSC Career Professional
Examination last July 30, 1989, held at the Criminology
Building of UNO-R, this City, she was appointed a
Supervising Examiner. She personally instructed all Room
Examiners/Proctors to follow and comply with all the
instructions to safeguard the integrity of the examination,
most especially in the exhaustive and meticulous
examination of the identity of the examinees. The
procedures in place were strictly and dutifully followed, to
ensure the integrity of the examination. Anything that is
amiss or out of order was immediately reported to her by the
proctors and room examiners. She is then authorized to take
positive action in order to preserve the integrity of the
examination.
She testified that in the examination held on July 30,
1989, no report was ever made to her of any irregularity or
untoward incident, such as the taking of the examination by
a person other than the examinee himself. (Affidavit of
Julieta M. Tabino dated July 9, 2005 attached as Exhibit 3 of
the Formal Offer of Exhibits dated Aril 18, 2006, which is
attached as Annex E of the Petition for Certiorari.)
Again, we respectfully emphasize that the testimonies
of these witnesses, especially that of Mrs. Apellido-Taclobos
and Ms. Padilla, prove beyond doubt that it was Petitioner
who actually took the civil service examination on July 30,
1989. The testimonies of Petitioners witnesses were never
refuted by the prosecution.
In reference to the Picture Seat plan (PSP) and
Personal Data Sheet (PDS) used for comparison of the

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pictures and signatures of Petitioner, the Honorable
Commission states in its Resolution No. 10-0717 dated April
6, 2010 that:

They are the best evidence to show that the


pictures and the signatures appearing on the picture
seat plan and the personal data sheet belong to two
different persons. (Par. 7, page 8, Annex A)

On the contrary, Petitioner respectfully submits that


documents as evidence only provide proof of their contents.
(Section 2, Rule 130, 1997 Revised Rules of Court)
Documentary evidence by itself cannot be considered
as the best evidence of the fact of fraud or
impersonation that Petitioner is being accused of. The
fundamental principle that fraud or forgery must be proved
by clear and convincing evidence, and not presumed cannot
be emphasized enough. Mere allegation or opinion that a
signature is forged is not evidence of forgery.
Moreover, although it is true that the PSP and the PDS
on file with the Commission are official records which must
be given full weight and credence, (Par. 7, page 8,
Resolution No. 10-0717 dated April 6, 2010, Annex A)
Petitioner takes exception with the unsubstantiated and
subjective conclusions arrived at by the prosecution from a
mere ocular comparison of the said official documents,
which do not deserve to be given weight and credence
taken in light of categorical eyewitness testimonies given by
Petitioners witnesses, which were never disputed by the
prosecution.

In affirming the decision of the CSCRO VI, the


Honorable Commission quotes the following conclusion of
the CSCRO VI Decision dated August 13, 2009:

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Without his passing the said examination,
Jomento can never attain permanent status in his
position. More intimidating is the probability that he
may be displaced from the service, even before his
temporary appointment expires, the moment a
qualified and interested applicant comes xxx. Thus it
was imperative for him to resort to a last-ditch
maneuver to hold on to his position by asking
somebody else to take the examination for and in his
behalf. (Par. 3, page 1, Resolution No. 10-0717 dated
April 6, 2010, Annex A)

Petitioner most respectfully submits that the above


conclusion of the Commission on the alleged motive of
Petitioner is purely conjectural, unsupported by evidence
and completely without legal basis.
The Honorable Commission also state in its Resolution
No. 10-00390 dated November 22, 2010 that Petitioners
averments were couched in the same general terms and
catch-all phrases as in his Comment, still devoid of any
specific arguments and evidence to support the claim that
Jomento did not allow anyone to take the CS Examinations
for and in behalf of himself.
On the contrary, Petitioner submitted specific
arguments, pointing out in detail the findings of the
Commission not supported by the applicable law and the
evidence on record in Petitioners Appeal Memorandum
dated January 4, 2010 and Motion for Reconsideration dated
May 26, 2010.

At this juncture, it bears stressing that there is no


substantial evidence to support the Commissions finding
that Petitioner is guilty of the grave offense of dishonesty.
It is important to note that the Honorable
Commission never made a finding declaring the
eyewitness testimonies of the Petitioners witnesses
to be incredible. Rather, the Commission even

13
declared that the room examiners have performed
their duties regularly and had compared the pictures
on the Picture Seat Plan and the faces of the persons
who took the July 30, 1989 examination.(Par. 1, Page 6,
of the CSCRO VI Decision dated August 13, 2009, Annex H
of the Petition for Certiorari; Par. 5, page 7, Resolution No.
10-00390 dated November 22, 2010, Annex B of the
Petition for Certiorari) Despite the Commissions reliance on
the credibility of the said witnesses, the Honorable
Commission still refused, without reason, to believe the
consistent testimonies of the three witnesses that it was
Petitioner himself who appeared before them to take the
examination, and whose picture and signature appears on
the Picture Seat Plan. No explanation was proffered by the
Commission why it accepted part of the witnesses
testimonies while completely disregarding the rest.

Petitioner remains steadfast in his stand that he is


innocent of the charge of dishonesty against him. Petitioner
dedicated his time and effort to review for the civil service
examination in his determination to advance his career in
government. In all his years of public service, his reputation
remains untainted. He continues to endeavor to preserve his
good name as a public servant considering that as a man of
humble means, this is the only true and lasting legacy that
he can bequeathe to his family.

The witnesses he presented to prove his innocence are


respectable, honest and exemplary public servants in their
own right. The overwhelming evidence he submitted are of
such character that any reasonable mind can accept as
adequate to justify a conclusion of his innocence and

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exoneration from all charges of wrongdoing in the instant
administrative case.

a. The Honorable
Commission erred
when it ruled that
Petitioner allowed an
impersonator to take
for and in his behalf
the Career Service
Professional
Examinations
conducted on July
30, 1989 in Bacolod
City.

The primordial factual issue crucial to the determination


of Petitioners guilt or innocence of the charge against him is
whether or not he caused another person to take the subject
civil service examination on his behalf.

The Honorable Commission affirmed the finding of


CSCRO VI that an impostor took the examination on behalf of
Petitioner, based only upon its opinion that the picture and
signature on the Picture Seat Plan pertaining to the July 30,
1989 civil service examination are allegedly not the picture
and signature of Petitioner.

Petitioner most respectfully submits that such opinion


must necessarily be overturned, as it is far outweighed by
the strong and positive evidence presented by Petitioner
proving that it was actually Petitioner himself, and not an
impostor, who took the subject examination.

As proof, Petitioner offered not only his testimony, but


the respective testimonies of three credible and independent
witnesses who clearly refute the opinion of the prosecution,

15
namely, Mrs. Helen P. Apellido-Taclobos Ms. Lennie Padilla
and Ms. Julieta Tabino. As the assigned examiners who
conducted the July 30, 1989 examination, it was these
witnesses themselves who examined Petitioner face to face
before allowing him to take the examination; it was they
themselves who examined firsthand the picture and
signature of Petitioner on the Picture Seat Plan, and
determined with certainty and conviction upon seeing
Petitioner during the presentation of their testimonies that it
was Petitioner himself who took the examination in 1989.

Petitioner respectfully submits that the prosecutions


unsubstantiated opinion is far outweighed by the unwavering
testimonies of Petitioners eyewitnesses, who put at stake
their own hard-earned benefits due to them as life-long
public servants, and who risked exposure to prosecution for
perjury in order to testify in the interest of truth and justice.

We respectfully submit that the testimonial evidence


offered by the Petitioner, which stands unimpeached and
uncontroverted on record, prevails over the opinion of the
prosecution.

It is fundamental that judgments of courts acting in a


judicial or quasi-judicial capacity must be based upon proof
adduced and not upon opinion, when a question of fact is
presented. Mere opinions do not constitute facts. (Dy Keng
vs. Insular Collector of Customs, G.R. No. 13640,
September 16, 1919)

b. The Honorable
Commission erred
when it concluded
that it was not

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Petitioners
photograph that was
attached on the
Picture Seat Plan
pertaining to the July
30, 1989 Career
Service Professional
Examination.

The Honorable Commissions finding of guilt is largely


anchored upon the prosecutions subjective observation that
the picture affixed on the Picture Seat Plan was not the
picture of Petitioner. It is the prosecutions opinion that a
comparison of the pictures of the Petitioner as contained in
various documents and the picture in the Picture Seat Plan
(Exhibits D, 6 and L, Par. 3, Page 5, Decision dated
August 13, 2009, Annex H) revealed that it was not
Petitioner himself who actually took the civil service
examination due to discrepancy in facial features.

Apart from the prosecutions opinion on the matter, no


evidence was offered to prove this conclusion.

We respectfully emphasize that opinion and conjecture


alone should not be made the basis of a determination of
fact, especially in the instant case where a finding of guilt
bears the consequence of the extreme sanction of removal
from service. The mere conclusion of the prosecution that
alleged discrepancies in the pictures means that Petitioner
was not the one who took the examination does not make
such unsupported conclusion a proven fact.

To explain any perceived discrepancies in the facial


features, Petitioner submitted in evidence pictures of himself
taken through the years showing the change and

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development that naturally affected his appearance.
(Attached as Exhibits 5, 6, 7, 8 and 9, respectively
to Formal Offer of Exhibits dated April 18, 2006, Annex E)
It is not unreasonable to expect that Petitioner as he appears
today most certainly does not look exactly like the Petitioner
as he appeared eight years ago in 2001, nor does the
Petitioner of 2001 look exactly like the Petitioner as he
appeared twenty years ago in 1989.

In its April 6, 2010 Resolution, the Honorable


Commission explained that the room examiners or proctors
whose testimonies were presented by Jomento, usually
compare only the picture in the Picture Seat Plan and the
face of the person actually taking the exam. (Par. 8, page 6,
Resolution No. 10-0717 dated April 6, 2010, Annex A)

However, in Petitioners case, the room examiners or


proctors not only were able to compare the picture in the
Picture Seat Plan with the face of the person actually taking
the examination, they also had the opportunity to be
presented with the Petitioner before the proceedings in the
CSCRO VI and verify under oath that it was actually
Petitioner who took the examination before them on July 30,
1989.

The Honorable Commission relied on the case of Cruz


vs. Paitim (G.R. No. 144464, November 27, 2001) to
support the finding of guilt against Petitioner. However, it is
respectfully submitted that the facts and ruling in the Cruz
vs. Paitim case do not avail in the instant case.

In the case of Cruz vs. Paitim, there were two distinct


persons involved, the person whose picture was posted on
the Picture Seat Plan, and the person who was supposed to

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take the examination. Considering that the two persons were
co-employees, it was easy for the Commission to verify that
one of them took the examination for the other. It was clear
that the person whose picture appears on the Picture Seat
Plan was not the picture of the person who was supposed to
take the examination. In the Cruz vs. Paitim case, both the
person who impersonated and the person impersonated
were administratively charged.

In finding both employees administratively liable, the


Supreme Court declared in the Cruz vs. Paitim case that it
is axiomatic that in the offense of impersonation, two
persons are always involved.

It is thus apparent that the facts in Cruz vs. Paitim


case do not obtain in the case of Petitioner. No impersonator
was actually discovered or presented by the prosecution in
the course of the investigation and proceedings before the
CSCRO VI, whose face can be compared with the picture on
the Picture Seat Plan. Unlike in the Cruz case, the
Commission cannot conclude that the picture on the Picture
Seat Plan is that of the impersonator and not Petitioners.

In the Cruz case, there were two distinct persons, the


person impersonated, and the person who impersonated.

In Petitioners case, there is no impersonator, or person


being impersonated. There is just one person, the Petitioner,
whom the proctors attest was the person whose picture was
affixed on the Picture Seat Plan and who appeared before
them on July 30, 1989 to take the civil service examination.
The persons who conducted the examination conclusively
established the fact that it was Petitioners picture affixed on
the Picture Seat Plan, not that of an unknown impersonator.

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It must be noted that the Honorable Commission even
observed similarities between Petitioner and the face on the
picture affixed on the Picture Seat Plan. (Par. 6, page 6,
Resolution No. 10-0717 dated April 6, 2010, Annex B)
Petitioner respectfully submits that there are more
similarities than differences between Petitioner and the face
on the picture affixed on the picture Seat Plan as to support
the conclusion that they are actually one and the same
person.

It must be emphasized that the picture of the Petitioner


on the Picture Seat Plan was affixed on July 30, 1989, while
the documents used by for comparison were all prepared in
2001, or no less than TWELVE (12) years from the date of the
examination. Any perceived differences can be attributed to
the long intervening years between the time the picture was
taken in 1989 and 2001. A persons appearance can change,
develop and be affected by a multitude of factors. A period
of twelve years is a significantly long period that can bear
witness to a number of events which affected Petitioners
appearance natural aging, weight loss and weight gain,
ailments and the like. The fact that there are differences in
Petitioners appearance in a picture taken in 1989 and his
pictures taken in 2001, or twelve long years later is but
natural and expected. Such differences most certainly do not
support prosecutions conclusion that Petitioner was not the
person whose picture was affixed on the Picture Seat Plan in
the 1989 examination.

c. The Honorable
Commission erred
when it concluded
that it was not
Petitioners

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signature that was
affixed on the
Picture Seat Plan
pertaining to the July
30, 1989 Career
Service Professional
Examination.

The fundamental principle that mere opinion cannot be


made the basis of a finding of fact in judicial or quasi-judicial
proceedings must be applied with equal force in determining
whether or not Respondents signature affixed on the Picture
Seat Plan belongs to Petitioner.

The Honorable Commission arrived at the conclusion


that Petitioners signature affixed on the Picture Seat Plan
was a forgery because of the alleged differences perceived
between Petitioners signature on the Picture Seat Plan and
Petitioners signature as the same appears on Petitioners
Personal Data Sheet, Police Clearance and Panunumpa sa
Panunungkulan, all signed in the year 2001. However, such
slight differences were explained by Petitioner in the
changes he made in his own signature in the course of
twelve years from 1989, when he took the examination, to
2001, when the documents used for comparison were signed
by him. To prove this, Petitioner submitted various
documents he signed in the span of several years to show
the variations in his signature. (Attached as Exhibits 10,
11, 12 and 13 to Formal Offer of Evidence dated April
18, 2006, Annex E) The slight dissimilarities in Petitioners
signatures do not indicate forgery for these are natural,
expected and inevitable variations in genuine signatures
made by one and the same person.

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Even the sample signatures offered by the prosecution
as the real signatures of Petitioner vary slightly from each
other in stroke, length and style, and yet the prosecution do
not dispute that these are all the signatures of Respondent-
apellant, despite the differences. (Exhibits D-4, H-2 and
F-1, Par. 3, Page 6, Decision dated August 13, 2009, Annex
H) What is the basis or standard for concluding that the
sample signatures of Petitioner are the true signatures of
Petitioner despite differences in the strokes and loops
between these signatures? What standards are to be used to
objectively conclude if the signatures were made by the
same or different persons? These questions, and the
conclusions reached by the prosecution and the CSRO VI
only highlight how subjective and unreliable ordinary opinion
can be. Such opinion cannot be made the basis of the
conclusion that the signature in the Picture Seat Plan was a
forgery.

As explained in the case of Rivera vs. Turiano (G.R.


No. 156249, March 7, 2007), the dates when Petitioner
signed the documents used by the prosecution for
comparison, are considerably so spaced apart that the
supervening period can account for the variance of the
signatures to be expected and inevitable due to the passage
of time. Petitioner explained in his testimony the personal
reasons why he changed his signature. (Par. 4, page 7,
Memorandum dated May 31, 2006, Annex G) The
differences in the sample signatures were thus duly
accounted for and thoroughly explained, as to strongly
support the conclusion that the sample signatures, although
slightly different from each other, all belong to Petitioner.
Moreover, Petitioners witnesses categorically testify and

22
attest to the fact that it was Petitioner himself who affixed
the signature on the Picture Seat Plan in 1989.

The Honorable Supreme Court has ruled in the case of


Rivera vs. Turiano that an allegation of forgery and a
perfunctory comparison of the signatures by themselves
cannot support the claim of forgery, as forgery cannot be
presumed and must be proved by clear, positive and
convincing evidence. The burden of proof lies in the party
alleging forgery. Even in cases where the alleged forged
signature was compared to samples of genuine signatures to
show its variance therefrom, the Supreme Court still found
such evidence insufficient. It must be stressed that mere
variance of the signatures cannot be considered as
conclusive proof that the same were forged.

In the same case, the Honorable Court declared that in


order to determine forgery, the following criteria must be
observed:

The process of identification, therefore, must


include the determination of the extent, kind, and
significance of this resemblance as well as of the
variation. It then becomes necessary to determine
whether the variation is due to the operation of a
different personality, or is only the expected and
inevitable variation found in the genuine writing of the
same writer. It is also necessary to decide whether the
resemblance is the result of a more or less skillful
imitation, or is the habitual and characteristic
resemblance which naturally appears in a genuine
writing. When these two questions are correctly
answered the whole problem of identification is solved.

The Honorable Supreme Court had opportunity to apply


the above criteria in the afore-quoted case, where the same
circumstances present in the instant case confronted the

23
Supreme Court. As in the afore-quoted case, there were
differences in the signatures of a person in the course of
several years. The Supreme Court ruled that such
differences are not evidence of forgery. In ruling that forgery
was not proved in the case of Rivera vs. Turiano, the
Supreme Court declared thus:

In the instant case, the foregoing criteria were


not met. Private respondent failed to discharge his
burden of proof. He failed to demonstrate that the
signature of Paz Aquino on the Special Power of
Attorney is a forgery.

In his attempt to prove the forgery, private


respondent made a comparison of the signatures of Paz
Aquino by proffering the Contract of Lease dated
August 16, 1982 (Exhibit "4") executed between Paz
Aquino and Calixto Morandarte, the Deed of Absolute
Sale dated June 13, 1972 (Exhibit "5") executed
between Paz Aquino and herein private Petitioner, and
the subject Special Power of Attorney dated January 29,
1987 (Exhibit "D"; Exhibit "3").

While it is true that the testimonies of handwriting


experts are not necessary, however, pursuant to the
criteria enunciated in Ladignon, the private respondent
must not only show material differences between or
among the signatures. In addition, (1) he must
demonstrate the extent, kind, and significance of the
variation; (2) he must prove that the variation is due to
the operation of a different personality and not merely
an expected and inevitable variation found in the
genuine writing of the same writer; and (3) he must
show that the resemblance is a result of a more or less
skillful imitation and not merely a habitual and
characteristic resemblance which naturally appears in a
genuine writing.

The private respondent, at best, was only able to


show the variance of the signatures of Paz Aquino. The
Court must point out that the dates of the
foregoing instruments purportedly signed by Paz
Aquino, i.e., 1972, 1982, and 1987, are
considerably so spaced apart to possibly account

24
for the variance of the signatures to be expected
and inevitable due to the passage of time.

As stated, to prove forgery, a perfunctory


comparison of the signatures by themselves is
not enough, as forgery cannot be presumed and
must be proved by clear, positive, and convincing
evidence in accordance with the standards in
Ladignon, among other cases. Without such
demonstration, the CA committed a serious error in
concluding that fraud had been perpetrated.
(Emphasis supplied.)

Thus, mere comparison of Petitioners sample


signatures and the conclusion that they are different do not
constitute proof that Petitioners signature on the Picture
Seat Plan was forged. This is especially true considering the
positive eyewitness testimony of credible witnesses that the
signature on the Picture Seat Plan was affixed thereon by
Petitioner himself. The categorical testimony of credible
eyewitnesses on this factual matter far outweighs the
prosecutions conjecture that it was not.

It must be emphasized that the examiners who


conducted the July 30, 1989 examination testified that it
was Petitioner himself who signed the Picture Seat Plan, and
not an impostor.

It is respectfully submitted that the testimonies of


impartial witnesses who were actually present when the
subject examination was conducted and who positively
identified Petitioner as the person who actually signed the
Picture Seat Plan and took the July 30, 1989 examination
should be given more credence than the mere opinion of the
prosecution whose only basis for its conclusions is its own
subjective comparison of documents signed over the course
of many years.

25
d. The Honorable
Commission erred
when it concluded
that Petitioners
signature on the
Picture Seat Plan
pertaining to the July
30, 1989 civil service
examination was a
forgery based on its
own opinion only.

It is fundamental that forgery cannot be presumed; it


must be proved by clear and convincing evidence. Those
who make the allegation of forgery have the burden of
proving it since mere allegation is not evidence. (Jimenez
vs. Commission on Ecumenical Mission, G.R. No.
140472, June 10, 2002)

A comparison of Petitioners sample signatures and the


conclusion that they are different do not constitute proof that
Petitioners signature on the Picture Seat Plan was forged.
This is especially true considering the positive eyewitness
testimonies of credible witnesses that the signature on the
Picture Seat Plan was affixed thereon by Petitioner himself.
The categorical and consistent testimonies of credible
eyewitnesses on this factual matter far outweigh the
prosecutions conjecture that it was not.

The prosecution offered no witnesses to refute the


positive testimony of Petitioners witnesses on this point. The
conclusion submitted by prosecution is wholly based on its
own observation that the signatures are different, and based
on such observation, conjectured that therefore, the
signature that appeared on the Picture Seat Plan is a forgery.

26
Witnesses Mrs. Apellido-Taclobos and Ms. Padilla
obviously do not agree with the opinion of the prosecution,
as they had the opportunity to witness first hand with their
own eyes that it was Petitioner himself who took the
examination, and that the signature affixed to the Picture
Seat Plan belongs to the Petitioner.

It bears stressing that no rebuttal witnesses were


presented by the prosecution to assail the testimonies of
Petitioners witnesses. Having presented strong and positive
testimonial evidence refuting the allegations of the
prosecution, the burden of evidence has shifted upon the
prosecution. It was thus incumbent upon the prosecution to
present adequate evidence to disprove what Petitioner has
proven with the respective testimonies of his witnesses and
documentary evidence submitted.

e. The Honorable
Commission erred
when it disregarded
the positive
eyewitness
testimonies of the
proctors
categorically
declaring under oath
that it was Petitioner
who took the
examination.

As things stand, the respective testimonies of the


witnesses, and the witnesses themselves were never
impeached. It is thus unclear why the categorical, unbiased
and strong eyewitness testimonies of Petitioners witnesses
were not believed and given due credence by the Honorable
Commission. No clear and cogent reason was proffered for

27
disregarding the testimonial evidence which clearly proved
that it was Petitioner who personally took the examination.

It must be emphasized that the prosecution even relied


on a portion of said witnesses testimonies to support its
position, which in turn was adopted in the Decision dated
August 13, 2009 (Par. 1, Page 6, Annex H). The Decision
gave due credence to the testimonies of witnesses Mrs.
Apellido-Taclobos and Ms. Padilla, both Room Examiners of
Room 22-11 of the Criminology Building, UNO-R where
Petitioner was assigned, when they testified that they
carefully scrutinized the Picture Seat Plan to make sure that
the pictures affixed thereon were those of the examinees
taking the examination. The prosecution combined this
testimony with its own observation that the person
appearing on the picture affixed to the Picture Seat Plan was
not Petitioner, and thus illogically concluded that Petitioner
was not the one who took the examination.

Such conclusion would have been plausible had the


testimonies of witnesses Mrs. Apellido-Taclobos and Ms.
Padilla stopped at that point. However, Mrs. Apellido-
Taclobos and Ms. Padilla further testified under oath that
after having carefully scrutinized the picture affixed on the
Picture Seat Plan, they determined with absolute certainty
and conviction that it was Petitioner Celso Jomento who
personally took the examination, and not an impostor.

It must be pointed out that the Honorable Commission


cannot selectively accept a portion of the testimony of the
witness that suits its purposes and reject the rest of it which
does not. If the Honorable Commission relies on the

28
credibility of a witness respecting a portion of the testimony
of said witness to support its position, then it follows that the
rest of the testimony of the same witness is likewise
credible. It likewise bears noting that, while the CSCRO VI
explicitly relied on the testimonies of Petitioners witnesses
to support its Decision dated August 13, 2009, the CSCRO VI
later makes the conflicting and perplexing statement in its
Decision dated November 23, 2009 that the testimonies of
Petitioners witnesses cannot be given sufficient weight to
disprove the charges against him, as against the
documentary evidence presented by the prosecution. (Par. 5,
Page 2, Decision dated November 23, 2009, Annex I)

The Honorable Commission does not dispute the fact


that Petitioners witnesses performed their official duties
faithfully and regularly. The Commission states in its
November 22, 2010 Resolution that:

Anent the repetitive contention of movant that


the testimonies of the witnesses he presented are
credible, the Commission emphasizes that there is no
issue about the presumption of regularity in the
performance of duty of the proctors whom Jomento
presented.

This must be so, considering that the Commission relies


on the same witnesses respective testimonies that they
have carefully scrutinized the Picture Seat Plan before
allowing the examinees to take the civil service examination.
Moreover, there exists a presumption in law that official duty
has been regularly performed.

Petitioner entreats the Honorable Court to consider also


the personal circumstances of the witnesses. The witnesses
are public servants, having served the government as public

29
school teachers for decades. As of the time of the taking of
their respective testimonies, they were already of a
considerable advanced age, and travel from their
hometowns in the province of Negros Occidental to the place
of the hearings in Iloilo City could not be accomplished
without experiencing discomfort and difficulty on their parts.
At this late stage of their lives, Petitioners witnesses still
chose of their own free will to testify in the instant case
notwithstanding any inconvenience that such act may entail.
This they did even at the risk of exposure to prosecution for
perjury, at the of risk of hard-earned benefits due to them as
life-long public servants, for a person such as Petitioner who
has no relation to them at all, in order to shed light and
attest on the true circumstances in this case. In other words,
the witnesses had nothing to gain from testifying in the
instant case, and everything to lose. These circumstances
are a testament to the credibility, independence and
integrity of the Petitioners witnesses. With all due respect to
the Honorable Court, their respective testimonies as given
in full must be accorded the credence and weight they
deserve in determining the guilt or innocence of Petitioner.

Witnesses Mrs. Apellido-Taclobos and Ms. Padilla had


indeed testified that they carefully scrutinized the Picture
Seat Plan to ensure that the pictures affixed thereon
matched the faces of the examinees. However, the same
witnesses in the course of presenting their respective
testimonies, also positively declared that it was Petitioner
himself who appeared before them to take the examination,
and whose appearance matched the picture on the Picture
Seat Plan. It was by reason of this determination that
witnesses Mrs. Apellido-Taclobos and Ms. Padilla allowed

30
Petitioner to take the examination. It is also by reason of this
same conviction that they testified under oath before the
CSCRO VI and under penalty of perjury that it was Petitioner
himself, and no other, who appeared before them to take the
examination.
II. The Resolution 10-0717 dated April 6, 2010
affirmed by Resolution No. 10-00390 dated
November 22, 2010 of the Honorable Commission is
not supported by the applicable law and
jurisprudence on the matter.

It is clear from the Decision dated August 13, 2009 and


the Decision dated November 23, 2009 that the CSROs
finding of guilt was wholly based on the prosecutions
opinion that the alleged variations between the picture and
signature affixed on the Picture Seat Plan and the sample
pictures and signatures of Petitioner supports its conclusion
that it was not Petitioner who took the examination on July
30, 1989.

With all due respect to the Honorable Commission, it


must be stressed that opinion and conjecture alone should
not be made the basis of a determination of fact, especially
in the instant case where a finding of guilt bears the
consequence of the extreme sanction of removal from
service.

As a general rule, opinion of a person other than that of


an expert witness is not admissible in judicial or quasi-
judicial proceedings. The difficulties in having to rely on
mere opinion only to determine questions of fact, or to
determine the guilt or innocence in administrative
proceedings are extant in the subjective nature of opinion.
The opinion of one person would very likely differ from the

31
opinion of another who sees the same set of circumstances
through different eyes.

The rationale for disallowing opinion as evidence in


judicial as well as quasi-judicial proceedings was first
enunciated in the case of Dy Keng vs. Insular Collector
of Customs, (G.R. No. 13640, September 16, 1919) penned
by Justice Johnson, to wit:

Judgments and sentences of persons or courts


acting in a judicial or quasi-judicial capacity must be
based upon proof adduced and not upon opinion, when
a question of fact is presented. Mere opinions do not
constitute facts. The opinion of a witness as to what are
the facts is not a fact. It is true that the opinion of
experts are sometimes allowed when they relate to
specific or hypothetical facts; but in such a case the
court on appeal has before it the specific facts and may
draw its own conclusion. When the court has nothing
but the opinion of the witness it has nothing before it
upon which to base its conclusions. The opinion may be
a mere whim or caprice, based wholly upon the desires
of the witness. Of course, after the witness has given
the particular facts he may then give his opinion in
certain classes of cases.

A mere opinion or suspicion cannot give probative


force to testimony which in itself is insufficient to
establish or to justify an inference of a particular fact.
When an officer or court allows itself to enter upon the
sea of suspicion, it permits itself to enter upon a sea
which has no shore, and the embarkation is without a
rudder or compass to control the direction or to
ascertain its bearing.

To permit courts or persons acting in a judicial


capacity, who have been given authority to decide
questions of fact, to decide the same upon the mere
whims or caprices of witnesses would permit them to
resort to the miserable, unjust, and sometimes
cowardly, expedient of attempting to hide the real facts
under findings which rest upon nothing but their own
desire to grasp power and to do violence to the rights of
others, which they cannot otherwise do if they are

32
required to make a finding of facts based upon
evidence actually presented. Intellectual dishonestly
should never be permitted to confer either jurisdiction
or power upon any official, and, when power thus
acquired is attempted to be used to another's hurt, the
appellate courts should be alert to halt it.

This pronouncement was reiterated in a long line of


cases that include Manotok Realty, Inc. vs. CLT Realty
Development (G.R. No. 123346, March 31, 2009), Alonso
vs. Cebu Country Club, (G.R. No. 130876, January 31,
2002), Albano vs. Gapusan, (A.M. No. 1022-MJ May 7,
1976), Commissioner of Immigration vs. Garcia, (G.R.
No. L-28082 June 28, 1974).

Thus, the unsubstantiated opinion of the prosecution


that alleged discrepancies in Petitioners picture affixed in
the Picture Seat Plan during the 1989 examination, and the
sample pictures of Petitioner cannot validly support the
conclusion that Petitioner was not the one who took the
1989 examination.

With all due respect to the Honorable Court, the finding


of guilt made by the Civil Service Commission in its
Resolution No. 10-0717 dated April 6, 2010, as affirmed in
Resolution No. 10-00390 dated November 22, 2010, is
contrary to law and jurisprudence, and must accordingly be
reversed and set aside in the interest of justice.

PRAYER

WHEREFORE, in light of the foregoing, Petitioner Celso


Jomento respectfully prays that Resolution No. 10-0717

33
dated April 6, 2010, as affirmed in Resolution No. 10-00390
dated November 22, 2010, rendered by the Civil Service
Commission be reversed and set aside.

Other reliefs just and equitable are likewise prayed for.

Bacolod City for Cebu City, January 20, 2011.

MICHELLE VARCA GONZAGA


Counsel for Petitioner
2nd Flr. St. Therese Bldg.
Cor. Rizal-Locsin Sts. Bacolod City
Roll No. 49584/MCLE III No. 0007558/1-19-
2010
IBP No. 815558/1-5-2011/Bacolod City
PTR No. 4203138/1-4-2011/Bacolod City
COPY FURNISHED:

HON. FRANCISCO DUQUE


Chairman
Civil Service Commission
Constitution Hills, Batasang Pambansa Complex
Diliman 1126 Quezon City

DIRECTOR RODOLFO B. ENCAJONADO


Civil Service Commission
Regional Office No. 6
Manduriao, Iloilo City

DIRECTOR II FERNANDO O. MENDOZA


Civil Service Commission Negros Occidental Field Office
Provincial Capitol
6100 Bacolod City

EXPLANATION

The filing and service of the Petition for Review under


Rule 43 was done by registered mail due to the distance of

34
the office of undersigned counsel from the place of filing and
service.

This explanation is in compliance with Section 11, Rule


13 of the 1997 Rules of Civil Procedure.

MICHELLE VARCA GONZAGA

REPUBLIC OF THE PHILIPPINES)


BACOLOD CITY . . . . . . . ) S.S.

AFFIDAVIT OF SERVICE

I, _____________________________________, of legal age, with address


at _____________________________________, after being sworn in
accordance with law, depose and say:

On ______________, 2011, I caused to be served the following


pleading:

PETITION FOR REVIEW UNDER RULE 43

dated ______________

entitled Celso Jomento, Petitioner, versus Hon. Francisco Duque in his


capacity as Chairman of the Civil Service Commission , pursuant to
Sections 3, 4, 5, 10, 11 and 13, Rule 13 of the 1997 Rules of Court by
registered mail to the following:

35
HON. FRANCISCO DUQUE
Chairman
Civil Service Commission
Constitution Hills, Batasang Pambansa
Complex
Diliman 1126 Quezon City

DIRECTOR RODOLFO B. ENCAJONADO


Civil Service Commission
Regional Office No. 6
Manduriao, Iloilo City

DIRECTOR II FERNANDO O. MENDOZA


Civil Service Commission Negros Occidental
Field Office
Provincial Capitol
6100 Bacolod City

IN WITNESS WHEREOF, I have hereunto set my hand this ___


day of ________________2011 in Bacolod City, Philippines.

Affiant

SUBSCRIBED AND SWORN to before me this ___ day of


_______________2011 in Bacolod City, Philippines, affiant exhibiting to
me his _________________________ issued on ______________ at
_________________________.

Doc. No. ____;


Page No. ____;
Book No. ____;
Series of 2011.

36