Health of presidential bets

February 14, 2016, 1:36 pm

≫ Next: Rule 45; a review of factual findings of lower courts is beyond the province of a petition for review on certiorari.

≪ Previous: Duterte and the CPP, NDF, NPA.

We subscribe to the general opinion that the HEALTH of politicians who desire to sit in Malacanang as President is a valid and serious political issue that must be honestly revealed and explained to the Filipino electorate for their intelligent consideration.

We refer to the specific status and comprehensive prognosis of the physical and mental health condition of presidential bets Defensor-Santiago and Duterte, in particular..

To this very day, they refuse to be totally open and transparent about it.

↧

Rule 45; a review of factual findings of lower courts is beyond the province of a petition for review on certiorari.

February 14, 2016, 11:21 pm

≫ Next: Co-ownership; a co-owner has the right to sell his undivided share. If he sells the entire property without obtaining the consent of the other co-owners, the sale is not null and void; only the rights of the co-owner-seller are transferred, thereby making the buyer a co-owner of the property.

≪ Previous: Health of presidential bets

CORINTHIAN REALTY, INC. vs. HON. COURT OF APPEALS and EMILIO MARTIN (now deceased), MATILDE MARTIN, TEOFILO GUINTO (now deceased), DELFIN GUINTO, PRUDENCIO GUINTO and MARGARITA GUINTO, G. R. No. 150240. December 26, 2002.

“x x x.

It is quite obvious from the above issue and assignment of error that the instant petition is founded on an imploration to re-examine the factual findings of the Court of Appeals. A review of such factual findings is, however, beyond the province of a petition for review. It has long been the doctrine that factual findings and conclusions of the Court of Appeals, especially when in complete accord with the findings of the trial court are given great weight and, as such, in the absence of palpable mistake, binding and conclusive upon this Court. It is not the function of this Court, in a petition under Rule 45, to scrutinize, weigh and analyze evidence all over again. The jurisdiction of this Court is confined to reviewing questions of law which has been defined as those that do not require the examination of the probative value of the evidence presented by the parties.[23]

x x x.”

↧

Co-ownership; a co-owner has the right to sell his undivided share. If he sells the entire property without obtaining the consent of the other co-owners, the sale is not null and void; only the rights of the co-owner-seller are transferred, thereby making the buyer a co-owner of the property.

February 14, 2016, 11:27 pm

≫ Next: Art. 1181, Civil Code. - In conditional obligations, the acquisition of rights, as well as the extinguishment or loss of those already acquired, shall depend upon the happening of the event which constitutes the condition.

≪ Previous: Rule 45; a review of factual findings of lower courts is beyond the province of a petition for review on certiorari.

“x x x.

Indeed, only the pro-indiviso shares in the property of the co-owners - signatories to the deed were affected by the deed, private respondent Delfin Guinto and the heirs of spouses Tomas de Leon and Francisca Medina who were therein named co-owners-vendors not having affixed their respective signatures.

That petitioner paid specific amounts of money to the co-owners-private respondents-signatories to the deed and even had said -deed notarized in spite of the absence of the signatures of the other co-owners bars the claim of petitioner that it dealt with the co-owners of the property collectively.

Petitioners invocation of Article 1590 of the Civil Code which reads:

Art. 1590. Should the vendee be disturbed in the possession or ownership of the thing acquired, or should he have reasonable grounds to fear such disturbance, by a vindicatory action or a foreclosure of mortgage, he may suspend the payment of the price until the vendor has caused the disturbance or danger to cease, unless the latter gives security for the return of the price in a proper case, or it has been stipulated that, notwithstanding any such contingency, the vendee shall be bound to make the payment. A mere act of trespass shall not authorize the suspension of the payment of the price.

to justify its suspension of the payment of the balance of the purchase price on the basis of, so it claims, a well-grounded fear that its possession or ownership of the property would be disturbed by a vindicatory action which private respondent Delfin Guinto may institute against it fails. And so does its invocation of Article 1191 of the Civil Code which provides:

ART. 1191. The power to rescind obligations is implied in reciprocal ones, in case one of the obligors should not comply with what is incumbent upon him.

The injured party may choose between the fulfillment and the rescission of the obligation, with the payment of damages in either case. He may also seek rescission, even after he has chosen fulfillment, if the latter should become impossible.

The court shall decree the rescission claimed, unless there be just cause authorizing the fixing of a period.

This is understood to be without prejudice to the rights of third persons who have acquired the thing, in accordance with Articles 1385 and 1388 and the Mortgage Law.

For under Article 493 of the Civil Code which provides:

Article 493.- Each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal rights are involved. But the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership,

a co-owner has the right to sell his undivided share. If he sells the entire property without obtaining the consent of the other co-owners, the sale is not null and void. Only the rights of the co-owner-seller are transferred, thereby making the buyer a co-owner of the property.[24]

The transferee gets only what his transferor would have been entitled to after partition.[25]

Even if a co-owner sells the whole property as his, the sale will affect only his own share but not those of the other co-owners who did not consent to the sale. This is because under the aforementioned codal provision, the sale or other disposition affects only his undivided share and the transferee gets only what would correspond to his grantor in the partition of the thing owned in common.[26]

X x x.”

↧

Art. 1181, Civil Code. - In conditional obligations, the acquisition of rights, as well as the extinguishment or loss of those already acquired, shall depend upon the happening of the event which constitutes the condition.

February 14, 2016, 11:40 pm

≫ Next: Moot and academic case: where the issue has become moot and academic, there is no justiciable controversy, and an adjudication thereon would be of no practical use or value as courts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually challenging.

≪ Previous: Co-ownership; a co-owner has the right to sell his undivided share. If he sells the entire property without obtaining the consent of the other co-owners, the sale is not null and void; only the rights of the co-owner-seller are transferred, thereby making the buyer a co-owner of the property.

“x x x.

Petitioners contention that its obligation to pay the balance of the purchase price within 90 days was not a condition precedent to the execution by the co-owners-vendors of the Deed of Absolute Sale is bereft of merit. The deed could not be any clearer on the matter. The pertinent provisions bear restating:

3. The remaining balance in the amount of P335,159.00 will be paid by the VENDEE to the VENDORS within a period of NINETY (90) DAYS from the execution of this Instrument;

4. . . . as soon as the VENDEE complied (sic) with his obligation under this Contract, then the VENDORS shall immediately execute the absolute deed . . . (Emphasis supplied).

And the Civil Code provides that:

Art. 1181. In conditional obligations, the acquisition of rights, as well as the extinguishment or loss of those already acquired, shall depend upon the happening of the event which constitutes the condition.

In fine, petitioners compliance with its obligation to pay the balance of the purchase price was thus a condition precedent to the execution by private respondents-signatories of an absolute sale. Since it failed to comply with such obligation, the obligation of private respondent-signatories to execute a deed of absolute sale had not arisen.

Where one of the parties to a contract do[es] not perform the undertaking which he [is] bound by its terms, he is not entitled to insist upon the performance of the other party.[27]

X x x.”

↧

Moot and academic case: where the issue has become moot and academic, there is no justiciable controversy, and an adjudication thereon would be of no practical use or value as courts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually challenging.

February 15, 2016, 1:09 am

≫ Next: Attorney's fees; attorneys fees as part of damages is awarded only in the instances specified in Article 2208 of the Civil Code

≪ Previous: Art. 1181, Civil Code. - In conditional obligations, the acquisition of rights, as well as the extinguishment or loss of those already acquired, shall depend upon the happening of the event which constitutes the condition.

REPUBLIC OF THE PHILIPPINES vs. EDMUNDO L. TAN & THE HONORABLE SANDIGANBAYAN (Fifth Division), G.R. No. 145255. March 30, 2004.

“x x x.

On July 21, 1998, private respondent filed a motion for exclusion as party-defendant,[11] maintaining that his participation in the acts charged was in furtherance of legitimate lawyering in line with his work as an associate of ACCRA Law Firm at the time [said] acts charged were supposed to have been committed by his co-defendants, and that this Courts ruling in Regala v. Sandiganbayan, 262 SCRA 123 (1996), upon which the Sandiganbayan anchored its Resolution ordering his exclusion as party-defendant, is applicable in light of the similarity between the factual circumstances of his supposed involvement and those of the petitioners in Regala.

X x x.

In the meantime, almost a decade after the complaint was filed, the Sandiganbayan, by Resolution of September 17, 2001,[19]granted the separate motions to dismiss filed by Cojuangco, Gutierrez and Eusebio Tan, and Ongsiako, as well as that of Conrado Estrella. Accordingly, the complaint was dismissed for lack of jurisdiction over the subject matter, x x x.

Aggrieved by the Sandiganbayans dismissal of its complaint, petitioner filed on October 9, 2001 a motion for reconsideration,[21]which the Sandiganbayan denied by Resolution of April 23, 2002.[22] Petitioner thereupon assailed the dismissal by petition for review with this Court, docketed as G.R. No. 153272, which was denied by Resolution of July 24, 2002 in this wise: x x x.

X x x.

The case of Garron v. Arca and Pineda, 88 Phil. 490 (1951), is instructive. A petition for certiorari was filed with this Court, arising from a complaint for replevin. Before the petition could be acted upon, the complaint for replevin was dismissed. This Court held that a decision in the petition became unnecessary, the same having become moot.

We cannot quite agree with this plea much as we desire to rule on the merits of the case. The duty of the court is to decide actual controversies, not mere hypothetical cases. When this case was brought to this Court, there was actual controversy. Several issues were raised. The main purpose is to have the replevin case dismissed for lack of jurisdiction. This purpose however has already been accomplished, although on a different ground. If the petitioners wanted to have the case decided on the merits so that a ruling may be had on the issue of jurisdiction or on the matter affecting ownership of the articles involved, they should have appealed from the order of the dismissal in the replevin case. This they failed to do. The replevin case has ceased to have legal existence. And as this case of certiorari is but an outgrowth of the main case, it must fall on its own weight. The order of dismissal is now final in character and cannot be revived. There is, therefore, no point to continue with this case when the main case is nonexistent. This Court finds no other alternative than to dismiss it without prejudice on the part of the petitioners to take such action as may be proper relative to the articles seized from Domingo Pineda.[30](Emphasis and underscoring supplied)

The rule is well-settled that for a court to exercise its power of adjudication, there must be an actual case or controversy one which involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial resolution; the case must not be moot or academic or based on extra-legal or other similar considerations not cognizable by a court of justice.[31]Where the issue has become moot and academic, there is no justiciable controversy, and an adjudication thereon would be of no practical use or value[32]as courts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually challenging.[33]

That private respondent did not file a motion to dismiss the complaint for lack of jurisdiction of the Sandiganbayan over the subject matter, he having instead filed a motion for exclusion as party defendant, is of no moment. Jurisdiction of courts over the subject matter is conferred exclusively by the Constitution and by law.[34] It is determined by the allegations of the complaint and cannot be made to depend on the defenses of private respondent.[35] The Sandiganbayan’s lack of jurisdiction over the complaint could not be waived by private respondent or cured by his silence, acquiescence or even express consent.[36]

In fine, the dismissal of the complaint by the Sandiganbayan for lack of jurisdiction over the subject matter which this Court affirmed with finality in G.R. No. 153272 has rendered the present petition moot and academic.

X x x.”

↧

Attorney's fees; attorneys fees as part of damages is awarded only in the instances specified in Article 2208 of the Civil Code

February 15, 2016, 2:05 am

≫ Next: Actual damages; compensation; reimbursement - one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved.

≪ Previous: Moot and academic case: where the issue has become moot and academic, there is no justiciable controversy, and an adjudication thereon would be of no practical use or value as courts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually challenging.

FINANCIAL BUILDING CORPORATION vs. RUDLIN INTERNATIONAL CORPORATION, BLOOMFIELDEDUCATIONAL FOUNDATION,INC., RODOLFO J. LAGERA,MA. ERLINDA J. LAGERA ANDJOSAPHAT R. BRAVANTE,G.R. No. 164186, October 4, 2010; with accompanying case -- RUDLIN INTERNATIONAL CORPORATION, BLOOMFIELDEDUCATIONAL FOUNDATION,INC., RODOLFO J. LAGERA,MA. ERLINDA J. LAGERA ANDJOSAPHAT R. BRAVANTE vs. FINANCIAL BUILDINGCORPORATION,G.R. No. 164347, October 4, 2010.

“x x x.

The counterclaim for attorneys fees must likewise be denied. We have stressed that the award of attorneys fees is the exception rather than the rule, as they are not always awarded every time a party prevails in a suit because of the policy that no premium should be placed on the right to litigate. Attorneys fees as part of damages is awarded only in the instances specified in Article 2208 of the Civil Code.^[48]

ART. 2208. In the absence of stipulation, attorneys fees and expenses of litigation, other than judicial costs, cannot be recovered, except:

(1) When exemplary damages are awarded;

(2) When the defendants act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest;

(3) In criminal cases of malicious prosecution against the plaintiff;

(4) In case of a clearly unfounded civil action or proceeding against the plaintiff;

(5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiffs plainly valid, just and demandable claim;

(6) In actions for legal support;

(7) In actions for the recovery of wages of household helpers, laborers and skilled workers;

(8) In actions for indemnity under workmen’s compensation and employers liability laws;

(9) In a separate civil action to recover civil liability arising from a crime;

(10) When at least double judicial costs are awarded;

(11) In any other case where the court deems it just and equitable that attorneys fees and expenses of litigation should be recovered.

In all cases, the attorney’s fees and expenses of litigation must be reasonable.

None of the foregoing situations obtains in the case at bar.

X x x.”

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Actual damages; compensation; reimbursement - one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved.

February 15, 2016, 2:13 am

≫ Next: Delay in reciprocal obligation - In reciprocal obligations, neither party incurs in delay if the other does not comply or is not ready to comply in a proper manner with what is incumbent upon him.

≪ Previous: Attorney's fees; attorneys fees as part of damages is awarded only in the instances specified in Article 2208 of the Civil Code

“x x x.

As to Rudlins counterclaim for reimbursement of its expenses in repairing the defective waterproofing, not a single receipt was presented by Rudlin to prove that such expense was actually incurred by it. Under the Civil Code, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. The award of actual damages must be based on the evidence presented, not on the personal knowledge of the court; and certainly not on flimsy, remote, speculative and non-substantial proof.^[46]

The testimony of Rodolfo J. Lagera on the total cost allegedly spent by Rudlin in repairing the waterproofing works does not suffice. A court cannot rely on speculations, conjectures or guesswork as to the fact of damage but must depend upon competent proof that they have indeed been suffered by the injured party and on the basis of the best evidence obtainable as to the actual amount thereof. It must point out specific facts that could provide the gauge for measuring whatever compensatory or actual damages were borne.^[47]

X x x.”

↧

Delay in reciprocal obligation - In reciprocal obligations, neither party incurs in delay if the other does not comply or is not ready to comply in a proper manner with what is incumbent upon him.

February 15, 2016, 2:20 am

≫ Next: Evidence of a prior or contemporaneous verbal agreement is generally not admissible to vary, contradict or defeat the operation of a valid contract.- Sec. 9, Rule 130, Rules of Court

≪ Previous: Actual damages; compensation; reimbursement - one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved.

“x x x.

Considering that FBC had not completed the corrective/repair works in accordance with the Contract Documents and as approved or certified in writing by the Architect as to its completion, its demand for the payment of the final balance was premature. Under the Letter-Agreement dated June 5, 1986, final payment was subject to reconciliation of their accounts regarding the upgrading and downgrading done on the project. Obviously, this cannot be complied with unless FBC as the defaulting party completes the repair/corrective works for only then can the actual cost of additives and deductives be determined. In reciprocal obligations, neither party incurs in delay if the other does not comply or is not ready to comply in a proper manner with what is incumbent upon him.^[41] When the substandard waterproofing caused extensive damage to the school building, it was incumbent upon FBC to institute at its own expense the proper repairs in accordance with the guaranty-warranty stated in the Construction Agreement. Thus, Rudlin cannot be said to have incurred delay in the reconciliation of accounts, as a precondition for final payment; instead, it is FBC who was guilty of delay by its stubborn refusal to replace or re-execute the defective waterproofing of the subject school building.

X x x.”

↧

Evidence of a prior or contemporaneous verbal agreement is generally not admissible to vary, contradict or defeat the operation of a valid contract.- Sec. 9, Rule 130, Rules of Court

February 15, 2016, 2:28 am

≫ Next: Preliminary investigation; verification; proof of service; pro forma defense

≪ Previous: Delay in reciprocal obligation - In reciprocal obligations, neither party incurs in delay if the other does not comply or is not ready to comply in a proper manner with what is incumbent upon him.

FINANCIAL BUILDING CORPORATION vs. RUDLIN INTERNATIONAL CORPORATION, BLOOMFIELD EDUCATIONAL FOUNDATION, INC., RODOLFO J. LAGERA, MA. ERLINDA J. LAGERA AND JOSAPHAT R. BRAVANTE, G.R. No. 164186, October 4, 2010; with accompanying case -- RUDLIN INTERNATIONAL CORPORATION, BLOOMFIELD EDUCATIONAL FOUNDATION, INC., RODOLFO J. LAGERA, MA. ERLINDA J. LAGERA AND JOSAPHAT R. BRAVANTE vs. FINANCIAL BUILDING CORPORATION, G.R. No. 164347, October 4, 2010.

“x x x.

On the issue of the correct total contract price, we hold that Rudlin failed to substantiate its claim that the contract price stated in the Construction Agreement (P6,933,268.00) was not the true contract price because it had an understanding with FBCs Jaime B. Lo that they would decrease said amount to a mutually acceptable amount.

Under the general rule in Section 9 of Rule 130 of the Rules of Court, when the terms of an agreement were reduced in writing, as in this case, it is deemed to contain all the terms agreed upon and no evidence of such terms can be admitted other than the contents thereof. Rudlin argues that under Section 9, Rule 130, a party may present evidence to modify, explain or add to the terms of the written agreement if it is put in issue in the pleading, [t]he failure of the written agreement to express the true intent and the agreement of the parties thereto. Assuming as true Rudlin’s claim that Exhibit 7 failed to accurately reflect an intent of the parties to fix the total contract price at P6,006,965.00, Rudlin failed to avail of its right to seek the reformation of the instrument to the end that such true intention may be expressed.

Evidence of a prior or contemporaneous verbal agreement is generally not admissible to vary, contradict or defeat the operation of a valid contract.[42] Section 9 of Rule 130 of the Rules of Court states:

SEC. 9. Evidence of written agreements. - When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors-in-interest, no evidence of such terms other than the contents of the written agreement.

However, a party may present evidence to modify, explain or add to the terms of the written agreement if he puts in issue in his pleading:

(a) An intrinsic ambiguity, mistake or imperfection in the written agreement;

(b) The failure of the written agreement to express the true intent and agreement of the parties thereto;

(c) The validity of the written agreement; or

(d) The existence of other terms agreed to by the parties or their successors-in-interest after the execution of the written agreement.

The term agreement includes wills.

Rudlin cannot invoke the exception under (a) or (b) of the above provision. Such exception obtains only where the written contract is so ambiguous or obscure in terms that the contractual intention of the parties cannot be understood from a mere reading of the instrument. In such a case, extrinsic evidence of the subject matter of the contract, of the relations of the parties to each other, and of the facts and circumstances surrounding them when they entered into the contract may be received to enable the court to make a proper interpretation of the instrument.[43]

Under the fourth exception, however, Rudlins evidence is admissible to show the existence of such other terms agreed to by the parties after the execution of the contract. But apart from the Bar Chart and Cash Flow Chart prepared by FBC, and the testimony of Rodolfo J. Lagera, no competent evidence was adduced by Rudlin to prove that the amount ofP6,006,965.00 stated therein as contract price was the actual decreased amount that FBC and Rudlin found mutually acceptable. As to the affidavits executed by Architect Quezon and his associate Roberto R. Antonio,[44]the same do not serve as competent proof of the purported actual contract price as they did not testify thereon. Significantly, the June 5, 1986 Letter-Agreement did not at all mention the total contract price. Likewise, there is nothing in the various letters sent by Rudlin to FBC while construction was in progress and even subsequent to the execution of the said Letter-Agreement indicating that Rudlin corrected the contract price of P6,933,268.00 which FBC had repeatedly mentioned in its letters and documents.[45]

X x x.”

↧

Preliminary investigation; verification; proof of service; pro forma defense

February 15, 2016, 10:25 pm

≫ Next: "Pakyaw workers" are considered regular employees for as long as their employers have control over them. - Jaime Gapayao vs Rosario Fulo et al | Uber Digests

≪ Previous: Evidence of a prior or contemporaneous verbal agreement is generally not admissible to vary, contradict or defeat the operation of a valid contract.- Sec. 9, Rule 130, Rules of Court

A sample REPLY of the complainant to the COMMENT/OPPOSITION of the respondent re the MOTION FOR RECONSIDERATION filed by the complainant in the Office of the City Prosecutor. Falsification, forgery case. The Reply was prepared by our law office.

R E P L Y

(To: “Comment/Opposition”

of Respondent)

THE UNDERSIGNED COMPLAINANT respectfully states:

I. INTRODUCTION.

The subject matter of this Reply is the Comment/Opposition, dated January 28, 2016, of the counsel for the respondent, xxx Law Office, a copy of which was received on January 28, 2016 by the herein complainant.

The said Comment/Opposition of the respondent opposes the pending Motion For Reconsideration, dated January 7, 2016, of the herein complainant.

II. GROUNDS CITED IN THE COMMENT/OPPOSITION OF THE RESPONDENT.

In the Prayer part of her Comment/Opposition, the respondent assigns three (3) grounds to deny the pending motion for reconsideration of the herein complainant, to wit:

(a) Lack of verificationby the herein complainant of her motion for reconsideration;

(b) Lack of proof of service by the herein complainant to the respondent of a copy of the former’s motion for reconsideration;

III. DISCUSSION.

A. A PURELY LEGAL (AND SINGLE) ISSUE IS RAISED IN THE PENDING MOTION FOR RECONSIDEATION OF THE HEREIN COMPLAINANT.

THE ARGUMENTS IN SUPPORT OF THE MOTION FOR RECONSIDERATION OF THE COMPLAINANT DO NOT INTRODUCE NEW DOCUMENTS OR NEW TESTIMONIES OR NEW FACTS THAT REQUIRE MANDATORY JURAT, OATH, OR VERIFICATION.

The sole basis of this Honorable Office in dismissing the instant Complaint was that that the proper party-complainant should have been Xxx Xxx (the employer of the herein complainant) and not the complainant herself because the Complainant was not theactual issuer of the falsified Certificate of Employment subject matter of the Complaint but her employer xxx.

The pending motion for reconsideration of the herein complainant (as an affected employee) presents and argues a single purely legal issue, i.e., whether or not the herein complainant has the legal standing or locus standi to be a proper party or a party-in-interest or a necessary party as an affected/injured/harmed employee to initiate a falsification and forgery case against the respondent and her co-malefactor/s who have injured, damaged, and harmed her good name, honor, reputation, employment and livelihood as a law-abiding and innocent citizen, mother, parent and professional.

A single purely legal issue of such nature requires no formal verification because the purely legal arguments are (a) matters of record and (b) matters of judicial notice based on existing laws and jurisprudence.

The arguments of the herein complainant in her pending motion for reconsideration do not present and identify new factual issues or new documentary and testimonial evidenceor new factsthat require a notarial oath or a jurat or a notarial acknowledgment before a private notary public or an administering assistant city prosecutor to make her motion for reconsideration a valid and admissible pleading worthy of consideration by this Honorable Office.

The three (3) main relevant and material facts in the instant case are undisturbed and uncontroverted by the respondent in her past counter-affidavit and rejoinder-affidavit and in her Comment/Opposition, to wit:

(a) The identity of the employer (alleged issuer of the questioned Certificate of Employment);

(b) The identity of the employee-complainant (the party injured/affected by the falsified Certificate of Employment); and

© The fact of the issuance of the questioned Certificate of Employment (which document came to the knowledge and possession of the employer, when a Bank representative verified the same, and which document became the official basis of the employer in commencing an internal administrative case against the herein complainant for alleged gross dishonesty).

A legal issue is a matter of record and a matter of judicial notice.

No new testimonial and documentary evidence are presented in a motion for reconsideration that raises a purely legal issue.

Such a motion need not be verified because it does not allege, identify, introduce and present new facts or new documentsor new testimonies or new witnesses that require a mandatory notarial or jurat-based verification to affirm the veracity, authenticity and due execution of such new documents or new facts or new testimonies of new witnesses.

Finally, a petition for review/appeal filed with the Department of Justice central office/regional office must be verified and must contain an anti-forum shopping certification and, further, its annexes must be certified by the local office of the city prosecutor, because the original case record is not automatically elevated by the local office of the city prosecutor to the DOJ central office/regional office simultaneously with the filing by the appellant of the petition for review/appeal.

B. THE HEREIN COMPLAINANT HAS SUBSTANTIALLY COMPLIED WITH THE RULE ON PROOF OF SERVICE BY ATTACHING THE ORIGINAL OF THE POST OFFICE REGISTRY RECEIPT TO THE ORIGINAL COPY OF THE MOTION FOR RECONSIDERATION THAT SHE FILED WITH THIS HONORABLE OFFICE.

NO SEPARATE AFFIDAVIT OF SERVICE IS REQUIRED AS A MATTER OF SUBSTANTIAL COMPLIANCE, ENTRENCHED TRADITION, AND OLD-TIME PRACTICE BY LAWYERS AND LITIGANTS BEFORE LOCAL OFFICES OF CITY AND PROVINCIAL PROSECUTORS AND EVEN BEFORE THE TRIAL COURTS IN THE COUNTRY VIS-À-VIS RULE 13 (AFFIDAVIT OF SERVICE) OF THE RULES OF COURT.

The original of the Post Office Registry Receipt was attached by the complainant to the original copy of her motion for reconsideration that she filed with this Honorable Office.

The rest of the extra copies of the motion filed with this Honorable Office (as well as the copy of the motion served on the respondent via registered mail) also contained the following official data on the last page of such individual copies, tow wit:

· Post Office Registry Receipt Number No. xxx

· Date of mailing (January 12, 2016)via registered mail of the copy of the motion to the respondent, and

· Location of the Post Office (xx City)where the copy of the motion mailed via registered mail to the respondent was mailed/posted.

The respondent admitsin Par. 1 of her Comment/Opposition that she actually received on January 19, 2016a copy of the motion for reconsideration via registered mail.

Hence, the issues of due process and of proof of service (i.e., whether or not the respondent received a copy of the motion and whether or not she was afforded a fair opportunity to be heard thereon) are now deemed moot and academic.

Her right to due process of law was not injured and harmed in any manner whatsoever.

The service by the complainant to the respondent of a copy of the motion for reconsideration via registered mail is a sufficient proof of service.

It was a substantial compliancewith the rule on proof of service.

The fact remains that the respondent was duly and actually notified of the said motion by actually receiving a copy thereof and by subsequently filing her Comment/Opposition thereto.

The act of attaching (as proof of service) the original of the post office registry receipts to the originals of the pleadings filed with the local offices of the city and provincial prosecutors and even those pleadings filed with local trial courts is an the entrenched and accepted tradition and old-time practice among lawyers and litigants which the said local offices/courts allow and accepts as a substantial compliance withRule 13 (affidavit of proof of service) of the Rules of Court.

Furthermore, for the record, the complainant is attaching to the original of this Reply as Annex “A” hereof the original of the Post Office Registry Return Card (a) to prove the fact of service by the complainant to the respondent of a copy of the motion for reconsideration and (b) to prove the fact of actual receipt of a copy thereof by the respondent of the motion on January 19, 2016 as admittedby her in Par. 1 of her Comment/Opposition and as shown in the dorsal side of the said Post Office Registry Return Card.

C. THE MOTION FOR RECONSIDERATION IS NOT PRO FORMA.

IT IS NOT A REHASH.

IT CONTAINS LEGAL AND JURISPRUDENTIAL ARGUMENTS THAT DISCUSS THE SOLE PURELY LEGAL ISSUE OR ERROR OF THIS HONORABLE OFFICE IN DISMISSING THE INSTANT COMPLAINT BASED ONLY ON THE

TECHNICALITY THAT THE HEREIN COMPLAINANT IS NOT A PROPER PARTY OR A INDISPENSABLE PARTY OR A NECESSARY PARTY WHO HAS THE LOCUS STANDI TO COMMENCE THE INSTANT COMPLAINT.

The motion for reconsideration deserves consideration by this Honorable Office.

It is not a rehashed motion.

It contains strong legal and jurisprudential arguments in support of the legal theory of the complainant that the technical dismissal by this Honorable Office of the instant complaint was erroneous in the eyes of the applicable law and jurisprudence.

It cites legal and jurisprudential authorities in support of its arguments against the sole purely legal issue or error assigned in the motion for reconsideration which were not heretofore discussed in the complaint-affidavit and in the rejoinder-affidavit of the complainant.

In fact, it is the respondent -- in a short, simple, generic and shotgun-style claim in a 9-line single paragraph (i.e., Par. 4)of her Comment/Opposition -- who is guilty of raising a pro forma defense.

Without discussing and controverting the strong and lengthy legal and jurisprudential authorities cited by the complainant in her motion for reconsideration, the respondent is satisfied with making a general and sweeping, and indeed a pro forma, claim that the motion for reconsideration is allegedly a rehash/repetition and unmeritorious, without extensively presenting her counter-arguments to support her pro forma claim and without rebutting the authorities and citations in the motion for reconsideration of the complainant.

IV. RELIEF.

WHEREFORE, premises considered and in the interest of justice, the complainant respectfully prays that the questioned Resolution, dated 11 September 2015, be reconsidered and set aside and a new one be issued indicting the respondent for the crime of Falsification and Forgery of Private Commercial Document as charged in the Complaint.

Further, it is respectfully prayed (a) that the Investigating Assistant City Prosecutor be disqualified from participating in any manner whatsoever in the resolution of the pending motion for reconsideration for reasons of delicadeza and legal ethics and (b) that the Case Record hereof be elevated to the Office of the Chief City Prosecutor for further review.

Finally, the complainant respectfully prays for such and other reliefs as may be deemed just and equitable in the premises.

Las Pinas City, February 2, 2016.

xxx

Complainant

Cc:

xxx LAW OFFICE

Counsel for Respondent xxx

(address)

Reg. Rec.

Date PO

EXPLANATION

A copy of this pleading is served on the adverse counsel via registered mail due to the urgency of filing the same and due to the lack of personal field assistants of the undersigned complainant at this time.

xxx

Complainant

↧

"Pakyaw workers" are considered regular employees for as long as their employers have control over them. - Jaime Gapayao vs Rosario Fulo et al | Uber Digests

February 16, 2016, 12:40 am

≫ Next: Indispensable party; the absence of an indispensable party renders all subsequent actions of the court null and void for want of authority to act, not only as to the absent parties but even as to those present. - G.R. No. 153059

≪ Previous: Preliminary investigation; verification; proof of service; pro forma defense

See - Jaime Gapayao vs Rosario Fulo et al | Uber Digests

"x x x.

HELD: Yes. Fulo was a regular employee and was thus entitled to receive SSS benefits, among others. The Supreme Court agreed with the Court of Appeals in ruling that it “does not follow that a person who does not observe normal hours of work cannot be deemed an employee.” It is also not material that Gapayao never supervised Fulo.

In this case, the number of hours worked is not material. Gapayao is considered a pakyaw worker. Pakyaw workers are considered regular employees for as long as their employers have control over them. The power of the employer to control the work of the employee is considered the most significant determinant of the existence of an employer-employee relationship. This is the so-called control test and is premised on whether the person for whom the services are performed reserves the right to control both the end achieved and the manner and means used to achieve that end.” It should be remembered that the control test merely calls for the existence of the right to control, and not necessarily the exercise thereof. It is not essential that the employer actually supervises the performance of duties by the employee. It is enough that the former has a right to wield the power.

x x x."

↧

Indispensable party; the absence of an indispensable party renders all subsequent actions of the court null and void for want of authority to act, not only as to the absent parties but even as to those present. - G.R. No. 153059

February 16, 2016, 10:15 am

≫ Next: Franchise Agreement Questionnaire - Reference: www.findlaw.com

≪ Previous: "Pakyaw workers" are considered regular employees for as long as their employers have control over them. - Jaime Gapayao vs Rosario Fulo et al | Uber Digests

See - G.R. No. 153059

"x x x.

Notably, however, while PepsiCo was properly impleaded as a party defendant, Pizza Hut, an indispensable party, was not. An indispensable party is a party-in-interest without whom no final determination can be had of an action, and who shall be joined either as plaintiff or defendant.30 The joinder of indispensable parties is mandatory. Their presence is necessary to vest the court with jurisdiction, which is "the authority to hear and determine a cause, the right to act in a case." Thus, without their presence to a suit or proceeding, judgment of a court cannot attain real finality. The absence of an indispensable party renders all subsequent actions of the court null and void for want of authority to act, not only as to the absent parties but even as to those present.31

Nevertheless, the non-joinder of indispensable parties is not a ground for the dismissal of an action, and the remedy is to implead the non-party claimed to be indispensable. Parties may be added by order of the court on motion of the party or on its own initiative at any stage of the action and/or at such times as are just.32 If the petitioner refuses to implead an indispensable party despite the order of the court, the latter may dismiss the complaint/petition for the plaintiff/petitioner's failure to comply therewith.33

Hence, as no final ruling on this matter can be had without impleading Pizza Hut, its inclusion is necessary for the effective and complete resolution of the case and in order to accord all parties the benefit of due process and fair play.34

x x x."

↧

Franchise Agreement Questionnaire - Reference: www.findlaw.com

February 17, 2016, 1:31 am

≫ Next: Ombudsman wants power to wiretap, access criminals’ bank records | Inquirer News

≪ Previous: Indispensable party; the absence of an indispensable party renders all subsequent actions of the court null and void for want of authority to act, not only as to the absent parties but even as to those present. - G.R. No. 153059

COST OF THE FRANCHISE

How much is the initial franchise fee? _____________

Refundable ___ Nonrefundable _____

What does the initial fee purchase? _________________________________

Is a lump-sum payment required? Yes ___ No ___

Are installment payments allowed? Yes ___ No ___ How many? ___________

Payment due dates ________________________________________________

Is franchisor financing available? Yes ___ No ___ Interest rate _____________

Are periodic royalty payments required? Yes ___ No ___

How often? _____________________________________________________

How are they calculated? _________________________________________

Does the franchisor provide accounting services? Yes ___ No ___

For an additional fee? Yes ___ No ___ How much? _________

How are advertising costs divided between the franchisor and franchisee? ____________________________________

Is advertising national, regional, or local? _______________________________

What other services does the franchisor provide? ________________________

How is the franchise premises obtained? Purchase ___ Lease ___

Is financing available from the franchisor for the purchase of the premises?

Yes ___ No ___

Interest rate _________

How much of a down payment is required? _____________

How much are the rent payments? _____________ Due on _______________

FRANCHISE LOCATION

What geographic area is encompassed by the franchise? ______________________________________________

How far away is the nearest existing franchisee of the same franchisor? ______________________________________________

Are other franchises planned for the same geographic area in the future?

Yes ___ No ___

If so, provide details _____________________________________

Who selects the site for the franchise? Franchisor ___ Franchisee ___

Can the franchisee use his or her own property for the franchise? Yes ___

No ___

If the franchise premises require new construction, who determines the plans and specifications for the building? Franchisor ___ Franchisee ___

Who supervises construction and works with the contractor and subcontractors? Franchisor ___ Franchisee ___

What are the specifications for and restrictions on the appearance and configuration of the premises? ______________________________________

Who provides property insurance on the premises? Franchisor ___ Franchisee ___________________________________________

What are the franchisee's responsibilities relating to remodeling? _________________________________________________

What restrictions does the franchisor place on remodeling? ________________________________________________

OPERATING TERMS

Must all equipment and supplies be purchased from the franchisor? Yes ___

No ___

If not, must purchases be approved by the franchisor? Yes ___ No ___

How much control does the franchisor maintain over day-to-day operations? ________________________________________________

What aspects of the business are left to the discretion of the franchisee? __________________________________________

Are hours and days of operation dictated by the franchisor? Yes ___ No ___

Are products and services strictly controlled by the franchisor? Yes ___ No ___

Must the franchisee remain personally involved in running the franchise, or can the management duties be delegated? _______________________________

ADDITIONAL CONSIDERATIONS

Does the franchisor provide initial training? Yes ___ No ___

Does the franchisor provide on-going training? Yes ___ No ___

Under what conditions may the franchisor terminate the franchise? __________

What are the franchisor's duties and obligations to the franchisee in the event of such termination? __________________________________________________

Under what conditions must the franchise be renewed? ____________________

What happens to the franchisee's interest if he or she dies? ________________

Is the franchise assignable? Yes ___ No ___

How long has the franchisor been in business? ___ years

How many total franchises are there? ________

Are these franchises financially successful? Yes ___ No ___

How long did it take them to become profitable? _______________

Has the franchisor complied with all applicable state and federal laws and regulations? Yes ___ No ___

Other questions to ask my attorney: __________________________________

↧

Ombudsman wants power to wiretap, access criminals’ bank records | Inquirer News

February 17, 2016, 9:29 am

≫ Next: Ombudsman: Stronger forfeiture powers to 'paralyze' corrupt officials

≪ Previous: Franchise Agreement Questionnaire - Reference: www.findlaw.com

See - Ombudsman wants power to wiretap, access criminals’ bank records | Inquirer News

"x x x.

OMBUDSMAN Conchita Carpio Morales on Tuesday asked Congress to give her office additional powers to fast-track its investigation into cases of graft, including access to bank records and government offices to retrieve evidence for investigative purposes.

Aside from being exempted from bank secrecy laws, the Ombudsman proposed that the agency be allowed regulated use of wiretapping for evidence-gathering, and to directly file for forfeiture cases before the Sandiganbayan“without having to go to court to ask permission.”

Morales said the Supreme Court “diluted” the Ombudsman’s power when it ruled that the agency can only access the bank records of suspected erring officials when a case has already been filed in court.

Congress should also remove the time bar in going after illegally acquired properties, which prohibits the Ombudsman from filing forfeiture cases during the year before elections, Morales said.

Among other legislative proposals, the Ombudsman asked Congress that it be allowed to retain at least 30 to 35 per cent of recovered and forfeited assets to supplement its budget. - by Dona Z. Pazzibugan.

x x x."

↧

Ombudsman: Stronger forfeiture powers to 'paralyze' corrupt officials

February 17, 2016, 9:44 am

≫ Next: Police invite can be guise to effect warrantless arrest | The Manila Times Online

≪ Previous: Ombudsman wants power to wiretap, access criminals’ bank records | Inquirer News

See - Ombudsman: Stronger forfeiture powers to 'paralyze' corrupt officials

"x x x.

MANILA, Philippines – To keep up its campaign against corrupt public officials, the Office of the Ombudsman wants to push key legislative measures that could enhance its Constitutional powers, functions, and structure.

Among these measures is the proposal to allow the anti-graft agency to directly file a petition for forfeiture of suspected ill-gotten properties even while preliminary investigation has not yet concluded. (READ: How to catch a thief, the Ombudsman way)

"We can't just file for forfeiture proceedings until after the preliminary investigation is conducted. So we're advocating the passage of bills that would at least come up with provisional remedies while the preliminary investigation is being conducted," Ombudsman Conchita Carpio Morales said.

"We are asking Congress to allow us, in the case of real properties, to register adverse claims, to prevent the owner from disposing of the property and alerting would-be buyers that this property is in danger of being confiscated because it appears to be ill-gotten," she added.

Morales said strengthening the Ombudsman's capacity for asset recovery of suspected ill-gotten properties will "paralyze" corrupt public officials "where it hurts the most."

The proposal is one of several measures that Morales highlighted in her lecture on anti-corruption efforts delivered at the Ateneo Professional Schools in Makati City on Tuesday, February 16.

The former Supreme Court associate justice was awarded the 2016 Metrobank Foundation Professorial Chair for Public Service and Governance.

Campaign against corruption

The agency tasked to probe and prosecute erring public officials faces a heavy workload. As of December 31, 2015, a total of 11,056 administrative and criminal cases remain pending with the Ombudsman. Based on figures from the first half of 2015, it receives an average of 390 complaints every month.

"Because of this heavy workload, we work on Saturdays. Sometimes even Sundays," said Morales, who has been heading the anti-graft body since late July 2011.

These numbers, Morales said, can be read two ways: the pessimistic view – that corruption persists despite government's efforts – and a more optimistic perspective, which suggests that more people have become aware of corruption and are trusting the Ombudsman to investigate complaints.

"I lean towards the optimistic side...but the Ombudsman needs to do more to really create a significant impact," she said.

Last year, the anti-graft office resolved a total of 6,707 administrative and criminal cases. While it also registered a 2% increase in new cases filed, the Ombudsman reduced its year-end docket by 16%.

But to be more effective in its campaign against corruption, Morales said her office needs more powers.

Aside from strengthening its forfeiture powers, the Ombudsman is also pushing for access to bank records of public officials, the authority to enter public premises and seize public property for evidence gathering, and an exemption from the regulated use of wiretapping for investigations.

Her office is also seeking the allocation of at least 30% of successfully recovered assets as additional funding to the Ombudsman.

Additional funding would also help the Ombudsman attract a skilled workforce by providing an attractive compensation and retirement package.

Public cooperation needed

In her lecture, Morales also outlined the various systems put in place by her office to speed up the resolution of cases, such as the setting up of a complaint and case monitoring system and the prioritized disposition of high-profile cases.

But she also stressed the importance of involving citizens in the anti-corruption campaign.

"Without the support and cooperation of the people, the office won't have the ordnance to wage the war against corruption. We seek to actively engage the people's involvement, not only to make them aware of the anti-corruption programs but to make them vigilant," Morales said.

She added, "They have a choice not to become victims of graft and corruption. A paradigm shift is needed. One does not have to be a member of civil service to be a public servant. One needs only to bear in mind the best interest of the public, and to put it above one's own if conflict arises."

Morales said that having the best systems, personnel, and technology in place will "amount to nothing" if people do not have one simple virtue: honesty.

"A society of honest people will be intolerant to corruption. Honesty is the most sustainable cure to corruption that must be passed on from generation to generation. We don't need a revolution to be honest, we only need an evolution of mindset," she said. – Rappler.com

x x x."

↧

Police invite can be guise to effect warrantless arrest | The Manila Times Online

February 17, 2016, 10:44 am

≫ Next: Declaration of nullity of marriage - reception of evidence on incidental issues of custody, support, property relations.

≪ Previous: Ombudsman: Stronger forfeiture powers to 'paralyze' corrupt officials

See - Police invite can be guise to effect warrantless arrest | The Manila Times Online

"x x x.

The act of inviting a person to the police station is not illegal per se. Theoretically, such invitation is made in performance of police duty and obligation to investigate a crime, and determine the perpetrators. Nevertheless, caution must be observed when acceding to a police invitation as there are instances where the invitation is used as a guise to effect a warrantless arrest. Such anomalous situation arises when the invited person himself is being implicated in the crime as a perpetrator, not merely as someone who witnesses it.

It appears from your narration that the case of your brother likely falls into such proscribed or inadmissible form of warrantless arrest. You mentioned in your narration that your brother was invited by police officers to their station simply to inquire about the incident, but then the police started to ask his participation in the brawl. You also mentioned that the police appeared to suspect that your brother was involved in the incident. Such set of circumstances is similar to the facts in the case of People vs. Olivares (G.R. No. 77865, December 4, 1998), where a person invited by the police to the police station was investigated for allegedly committing a crime. In the case, the Supreme Court declared that such invitation is equivalent to arrest. It is covered by the proscription or prohibition of a warrantless arrest, because it is intended for no other reason than to conduct an investigation.

Further, the investigation that took place inside the police station was in the nature of a custodial investigation, or any questioning initiated by law enforcement authorities after a person is taken into custody or otherwise deprived of his freedom of action in any significant manner (People vs. Marra, G.R. No. 108494, September 20, 1994). As such, your brother should have been afforded with the bundle of rights guaranteed by Article III, Section 12 of our Constitution to a person under investigation for commission of a crime, to wit:

1) the right to be informed of his right to remain silent;

2) the right to have competent and independent counsel preferably of his own choice.

If the person cannot afford the services of counsel, he must be provided with one; and

3) freedom from torture, force, violence, threat or any other means which vitiate the free will.

If the police officers did not grant these rights to your brother when they started questioning him about his alleged involvement in the brawl, then their acts are tainted and illegal.

x x x ."

↧

Declaration of nullity of marriage - reception of evidence on incidental issues of custody, support, property relations.

February 18, 2016, 1:45 am

≫ Next: Due process; negligence of counsel

≪ Previous: Police invite can be guise to effect warrantless arrest | The Manila Times Online

See - http://thelawyerspost.net/deferment-of-ruling-on-other-issues-in-psychological-incapacity-cases/

"x x x.

Consistent, therefore, with Section 19 of A.M. No. 02-11-10-SC, the Court finds it more prudent to rule first on the petitioner’s petition and respondent’s counter-petition for declaration of nullity of marriage on the ground of each other’s psychological incapacity to perform their respective marital obligations. If the Court eventually finds that the parties’ respective petitions for declaration of nullity of marriage is indeed meritorious on the basis of either or both of the parties’ psychological incapacity, then the parties shall proceed to comply with Article[s] 50 and 51 of the Family Code before a final decree of absolute nullity of marriage can be issued. Pending such ruling on the declaration of nullity of the parties’ marriage, the Court finds no legal ground, at this stage, to proceed with the reception of evidence in regard the issues on custody and property relations, since these are mere incidents of the nullity of the parties’ marriage.⁠10 ."

x x x.

And the trial judge’s decision was not without basis. Judge Reyes-Carpio finds support in the Court En Banc Resolution in A.M. No. 02-11-10-SC or the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages. Particularly, Secs. 19 and 21 of the Rule clearly allow the reception of evidence on custody, support, and property relations after the trial court renders a decision granting the petition, or upon entry of judgment granting the petition:

Section 19. Decision. – (1) If the court renders a decision granting the petition, it shall declare therein that the decree of absolute nullity or decree of annulment shall be issued by the court only after compliance with Articles 50 and 51 of the Family Code as implemented under the Rule on Liquidation, Partition and Distribution of Properties.

x x x x

Section 21. Liquidation, partition and distribution, custody, support of common children and delivery of their presumptive legitimes. – Upon entry of the judgment granting the petition, or, in case of appeal, upon receipt of the entry of judgment of the appellate court granting the petition, the Family Court, on motion of either party, shall proceed with the liquidation, partition and distribution of the properties of the spouses, including custody, support of common children and delivery of their presumptive legitimes pursuant to Articles 50 and 51 of the Family Code unless such matters had been adjudicated in previous judicial proceedings.

Evidently, Judge Reyes-Carpio did not deny the reception of evidence on custody, support, and property relations but merely deferred it, based on the existing rules issued by this Court, to a time when a decision granting the petition is already at hand and before a final decree is issued. Conversely, the trial court, or more particularly the family court, shall proceed with the liquidation, partition and distribution, custody, support of common children, and delivery of their presumptive legitimes upon entry of judgment granting the petition. And following the pertinent provisions of the Court En Banc Resolution in A.M. No. 02-11-10-SC, this act is undoubtedly consistent with Articles 50 and 51 of the Family Code, contrary to what petitioner asserts. Particularly, Arts. 50 and 51 of the Family Code state:

Article 50. x x x

The final judgment in such cases shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of their presumptive legitimes, unless such matters had been adjudicated in the previous judicial proceedings.

x x x x

Article 51. In said partition, the value of the presumptive legitimes of all common children, computed as of the date of the final judgment of the trial court, shall be delivered in cash, property or sound securities, unless the parties, by mutual agreement judicially approved, had already provided for such matters. (Emphasis Ours.)

Finally, petitioner asserts that the deferment of the reception of evidence on custody, support, and property relations would amount to an ambiguous and fragmentary judgment on the main issue.⁠12 This argument does not hold water. The Court En Banc Resolution in A.M. No. 02-11-10-SC clearly allows the deferment of the reception of evidence on custody, support, and property relations. Conversely, the trial court may receive evidence on the subject incidents after a judgment granting the petition but before the decree of nullity or annulment of marriage is issued. And this is what Judge Reyes-Carpio sought to comply with in issuing the assailed orders. As correctly pointed out by the CA, petitioner’s assertion that ruling the main issue without receiving evidence on the subject incidents would result in an ambiguous and fragmentary judgment is certainly speculative and, hence, contravenes the legal presumption that a trial judge can fairly weigh and appraise the evidence submitted by the parties.⁠13 .

x x x."

See:

G.R. No. 189207, June 15, 2011, ERIC U. YU, Petitioner, vs. HONORABLE JUDGE AGNES REYES-CARPIO, in her official capacity as Presiding Judge, Regional Trial Court of Pasig-Branch 261; and CAROLINE T. YU, Respondents.

↧

Due process; negligence of counsel

February 19, 2016, 7:04 am

≫ Next: Self-serving affidavit

≪ Previous: Declaration of nullity of marriage - reception of evidence on incidental issues of custody, support, property relations.

VICIA D. PASCUAL vs. PEOPLE OF THE PHILIPPINES, G.R. No. 160540, March 22, 2007,

“x x x.

PETITIONER WAS ACCORDED HER CONSTITUTIONAL RIGHT TO DUE PROCESS

Petitioner was not denied due process on the mere premise that she was not able to submit her affidavit regarding where she allegedly spent the councils money. Due process means that a party has been given the opportunity to be heard.^[10] When a party has been afforded a chance to present his or her own side, he cannot feign denial of due process.^[11] In this case, the records are evident that petitioner herself participated as the only witness for the defense during the trial. She cannot now claim very belatedly that her constitutional right to due process was violated and that she was denied her day in court. What is repugnant to due process is the absolute absence of the opportunity to be heard through pleadings or otherwise,^[12] which is not the case here.

Petitioner likewise contends that it was due to her former counsel’s incompetence and negligence that she failed to offer her affidavit as evidence during the trial. This contention does not hold ground considering that she neither objected nor called the attention of her former lawyer when the latter manifested in open court that petitioner (as then accused) was adopting in Criminal Case No. 98-1015 the evidence in Criminal Case No. 98-1014,^[13] which evidence did not include petitioners affidavit. Had petitioner truly believed that her counsel then was inept and careless, she could have easily terminated his services at that very instance. In failing to do so, we can only conclude that she acquiesced to the manner her former lawyer handled her case.

The doctrinal rule is that litigants should suffer the consequences of the negligence or incompetence of their counsel whom they themselves hired and had full authority to fire at anytime and replace even without any justifiable cause.^[14]

X x x.”

Footnotes:

^[1] Penned by Associate Justice Ruben T. Reyes (now Presiding Justice of the Court of Appeals), and concurred in by Associate Justices Remedios Salazar-Fernando and Edgardo F. Sundiam of the Seventh Division of the Court of Appeals. Rollo, pp. 72-88.

^[2] Id., p. 100.

^[3] Id., pp. 33-34.

^[4] ART. 315. Swindling (estafa). − Any person who shall defraud another by any of the means mentioned hereinbelow

xxx

1. With unfaithfulness or abuse of confidence, namely:

(b) By misappropriating or converting, to the prejudice of another, money, goods, or any other personal property received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same, even though such obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other property. xxx

^[5] Decided by Judge Francisco B. Ibay, RTC, Makati City, Branch 135. Rollo, pp. 31-37.

^[6] Id., p. 82.

^[7] Id., pp. 83-88.

^[8] Supra note 2.

^[9] Rollo, pp. 17-18.

^[10] Roxas v. Vasquez, 432 Phil. 148 (2002).

^[11] Dayrit v. Philippine Bank of Communications, 435 Phil. 120 (2002); Development Bank of the Philippines v. Court of Appeals, 362 Phil. 1 (1999).

^[12] Sps. Friend, et al. v. Union Bank of the Philippines, G.R. No. 165767, 29 November 2005, 476 SCRA 453; Salonga v. Court of Appeals,G.R. No. 111478, 13 March 1997, 269 SCRA 534; Bacelonia v. Court of Appeals, 445 Phil. 300 (2003).

^[13] Rollo, p. 80.

^[14] Salva v. CA, 364 Phil. 281 (1997); Alabanzas v. Intermediate Appellate Court, 29 November 1991, 204 SCRA 304; Sps. Friend, et al. v. Union Bank of the Philippines, supra.

^[15] Villanueva v. Sps. Alejo and Virginia Salvador, G.R. No. 139436, 25 January 2006; People v. Chua, G.R. No. 128280, 4 April 2001, 356 SCRA 225; Ayson v. Enriquez Vda. De Carpio, G.R. No. 152438, 17 June 2004, 432 SCRA 449; Reburiano v. Court of Appeals, 361 Phil. 294 (1999).

^[16] Velasquez v. Court of Appeals, G.R. No. 138480, 25 March 2004, 426 SCRA 309; L.T. Datu & Co., Inc. v. Sy, G.R. No. 143701, 23 March 2004, 426 SCRA 189.

^[17] San Agustin v. People, G.R. No. 158211, 31 August 2004, 437 SCRA 392.

^[18] Id.; Villaflor v. Vivar, 402 Phil. 222 (2001).

^[19] Filadams Pharma, Inc. v. Court of Appeals, G.R. No. 132422, 30 March 2004, 426 SCRA 460.

^[20] Velasco v. People, G.R. No. 166479, 28 February 2006.

↧

Self-serving affidavit

February 19, 2016, 7:09 am

≫ Next: Preliminary investigation; absence or defect in the conduct of a preliminary investigation does not affect the court’s jurisdiction over a case; nor does it impair the validity of the information or render it defective. .

≪ Previous: Due process; negligence of counsel

VICIA D. PASCUAL vs. PEOPLE OF THE PHILIPPINES, G.R. No. 160540, March 22, 2007,

“x x x.

PETITIONER’S AFFIDAVIT WAS SELF-SERVING

Petitioner avers that her affidavit was crucial in determining whether or not she indeed committed estafa. She insists that, had the trial court allowed its submission, she would have been acquitted of the charges.

We disagree.

Lest petitioner forget, the affidavit she insisted on submitting as evidence in the trial court was her own affidavit. Her statements in that affidavit were self-serving. At any rate, even if offered and accepted as evidence, the affidavit was also unsubstantiated considering that petitioner adduced no other convincing evidence to prove that, indeed, the money was paid to the contractor of the covered walk. The affidavit alone was not enough to overthrow the prosecution's evidence pointing to petitioner as the author of the crime.

X x x.”

Footnotes:

^[2] Id., p. 100.

^[3] Id., pp. 33-34.

^[4] ART. 315. Swindling (estafa). − Any person who shall defraud another by any of the means mentioned hereinbelow

xxx

1. With unfaithfulness or abuse of confidence, namely:

^[5] Decided by Judge Francisco B. Ibay, RTC, Makati City, Branch 135. Rollo, pp. 31-37.

^[6] Id., p. 82.

^[7] Id., pp. 83-88.

^[8] Supra note 2.

^[9] Rollo, pp. 17-18.

^[10] Roxas v. Vasquez, 432 Phil. 148 (2002).

^[11] Dayrit v. Philippine Bank of Communications, 435 Phil. 120 (2002); Development Bank of the Philippines v. Court of Appeals, 362 Phil. 1 (1999).

^[13] Rollo, p. 80.

^[14] Salva v. CA, 364 Phil. 281 (1997); Alabanzas v. Intermediate Appellate Court, 29 November 1991, 204 SCRA 304; Sps. Friend, et al. v. Union Bank of the Philippines, supra.

^[16] Velasquez v. Court of Appeals, G.R. No. 138480, 25 March 2004, 426 SCRA 309; L.T. Datu & Co., Inc. v. Sy, G.R. No. 143701, 23 March 2004, 426 SCRA 189.

^[17] San Agustin v. People, G.R. No. 158211, 31 August 2004, 437 SCRA 392.

^[18] Id.; Villaflor v. Vivar, 402 Phil. 222 (2001).

^[19] Filadams Pharma, Inc. v. Court of Appeals, G.R. No. 132422, 30 March 2004, 426 SCRA 460.

^[20] Velasco v. People, G.R. No. 166479, 28 February 2006.

↧

Preliminary investigation; absence or defect in the conduct of a preliminary investigation does not affect the court’s jurisdiction over a case; nor does it impair the validity of the information or render it defective. .

February 19, 2016, 7:12 am

≫ Next: Estafa under Article 315, Par. 1(b), Rev. Penal Code; elements of

≪ Previous: Self-serving affidavit

VICIA D. PASCUAL vs. PEOPLE OF THE PHILIPPINES, G.R. No. 160540, March 22, 2007

“x x x.

THE DEFECTIVE NOTICE OF PRELIMINARY INVESTIGATION WAS AN ISSUE BELATEDLY RAISED

We likewise hold that petitioner is now barred from attacking the validity of the notice of preliminary investigation. Petitioner should have raised this issue in the lower courts, particularly during the arraignment. A question never raised in the courts below cannot be raised for the first time on appeal without offending the basic rules of fair play, justice and due process.^[15]

Moreover, an inquiry into this issue necessitates a review of factual and evidentiary matters which is proscribed in a petition for review on certiorari under Rule 45 of the Rules.^[16]

Notwithstanding the above disquisitions, petitioner ought to know that the absence or defect in the conduct of a preliminary investigation does not affect the court’s jurisdiction over a case.^[17] Nor does it impair the validity of the information or render it defective.^[18]

X x x.”

Footnotes:

^[2] Id., p. 100.

^[3] Id., pp. 33-34.

^[4] ART. 315. Swindling (estafa). − Any person who shall defraud another by any of the means mentioned hereinbelow

xxx

1. With unfaithfulness or abuse of confidence, namely:

^[5] Decided by Judge Francisco B. Ibay, RTC, Makati City, Branch 135. Rollo, pp. 31-37.

^[6] Id., p. 82.

^[7] Id., pp. 83-88.

^[8] Supra note 2.

^[9] Rollo, pp. 17-18.

^[10] Roxas v. Vasquez, 432 Phil. 148 (2002).

^[11] Dayrit v. Philippine Bank of Communications, 435 Phil. 120 (2002); Development Bank of the Philippines v. Court of Appeals, 362 Phil. 1 (1999).

^[13] Rollo, p. 80.

^[14] Salva v. CA, 364 Phil. 281 (1997); Alabanzas v. Intermediate Appellate Court, 29 November 1991, 204 SCRA 304; Sps. Friend, et al. v. Union Bank of the Philippines, supra.

^[16] Velasquez v. Court of Appeals, G.R. No. 138480, 25 March 2004, 426 SCRA 309; L.T. Datu & Co., Inc. v. Sy, G.R. No. 143701, 23 March 2004, 426 SCRA 189.

^[17] San Agustin v. People, G.R. No. 158211, 31 August 2004, 437 SCRA 392.

^[18] Id.; Villaflor v. Vivar, 402 Phil. 222 (2001).

^[19] Filadams Pharma, Inc. v. Court of Appeals, G.R. No. 132422, 30 March 2004, 426 SCRA 460.

^[20] Velasco v. People, G.R. No. 166479, 28 February 2006.

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