CASE 2011-0131: PEOPLE OF THE PHILIPPINES VS. GARRY DE LA CRUZ Y DE LA CRUZ (G.R. NO. 185717, 08 JUNE 2011) SUBJECTS: RA 9165;  BUY BUST OPERATION IN DRUG CASE; CHAIN OF COMMAND. (BRIEF TITLE: PEOPLE VS. DE LA CRUZ).

 

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SUBJECT: WHERE NO BUY-BUST OPERATION WAS CONDUCTED EVEN AS ALLEGED,  THE ELEMENTS FOR ILLEGAL SALE OF PROHIBITED DRUG CANNOT BE DULY PROVED.

 

After a careful and thorough review of the records, We are convinced that accused-appellant should be acquitted, for the prosecution has not proved beyond reasonable doubt his commission of violation of Sec. 5, Art. II of RA 9165.

 

A buy-bust operation is “a form of entrapment, in which the violator is caught in flagrante delicto and the police officers conducting the operation are not only authorized but duty-bound to apprehend the violator and to search him for anything that may have been part of or used in the commission of the crime.”^[1][16]  However, where there really was no buy-bust operation conducted, it cannot be denied that the elements for illegal sale of prohibited drugs cannot be duly proved despite the presumption of regularity in the performance of official duty and the seeming straightforward testimony in court by the arresting police officers.  After all, the indictment for illegal sale of prohibited drugs will not have a leg to stand on. 

 

 

SUBJECT: JUDGMENT OF TRIAL COURT NOT CONCLUSIVE ON SC WHEN EVIDENCE IS DISREGARDED

 

Although the trial court’s findings of fact are entitled to great weight and will not be disturbed on appeal, this rule does not apply where facts of weight and substance have been overlooked, misapprehended, or misapplied in a case under appeal,^[2][17] as here.

 

 

SUBJECT: WHAT TO PROVE IN A DRUG CASE

 

For the prosecution of illegal sale of drugs to prosper, the following elements must be proved: (1) the identity of the buyer and seller, the object, and the consideration; and (2) the delivery of the thing sold and its payment.  What is material is the proof that the transaction actually took place, coupled with the presentation before the court of the corpus delicti.^[3][18]

 

 

SUBJECT: THE OBJECTIVITY TEST

 

In People v. Doria,^[4][19] the Court laid down the “objective test” in determining the credibility of prosecution witnesses regarding the conduct of buy-bust operations.  It is the duty of the prosecution to present a complete picture detailing the buy-bust operation—“from the initial contact between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of sale.”^[5][20]  We said that “[t]he manner by which the initial contact was made, x x x the offer to purchase the drug, the payment of the ‘buy-bust money’, and the delivery of the illegal drug x x x must be the subject of strict scrutiny by the courts to insure that law-abiding citizens are not unlawfully induced to commit an offense.”^[6][21]

 

 

SUBJECT: DEFENSE OF FRAME-UP

 

The defense of frame-up in drug cases requires strong and convincing evidence because of the presumption that the law enforcement agencies acted in the regular performance of their official duties.^[7][29]  Nonetheless, such a defense may be given credence when there is sufficient evidence or proof making it to be very plausible or true.  We are of the view that accused-appellant’s defenses of denial and frame-up are credible given the circumstances of the case.  Indeed, jurisprudence has established that the defense of denial assumes significance only when the prosecution’s evidence is such that it does not prove guilt beyond reasonable doubt,^[8][30] as in the instant case.  At the very least, there is reasonable doubt that there was a buy-bust operation conducted and that accused-appellant sold the seized shabu.  After all, a criminal conviction rests on the strength of the evidence of the prosecution and not on the weakness of the defense.^[9][31]

 

 

SUBJECT: CHAIN OF CUSTODY; WHEN ABSENT –

 

Moreover, the prosecution failed to sufficiently prove the requisite chain of custody of the seized specimen.  “Chain of custody” means the duly recorded authorized movements and custody of seized drugs or controlled chemicals from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction.^[10][36]  The CA found an unbroken chain of custody of the purportedly confiscated shabu specimen.  However, the records belie such conclusion.

 

The testimonies of PO2 Ibasco and PO1 Valencia, as well as their Joint Affidavit of Apprehension, were bereft of any assertion on how the seized shabu in a heat-sealed sachet was duly passed from PO2 Ibasco, the chosen poseur-buyer, who allegedly received it from accused-appellant, to forensic chemist Engr. Jabonillo, who conducted the forensic examination.  While the testimony of Engr. Jabonillo was dispensed with upon stipulation by the defense, as duly embodied in the RCT Order dated March 16, 2004, it is likewise bereft of any assertion substantially proving the custodial safeguards on the identity and integrity of the shabu allegedly received from accused-appellant.  The stipulation merely asserts:

x x x that he is a Forensic Chemist of the Philippine National Police; that his office received a request for laboratory examination marked as Exhibit “A”; that together with said request is a brown envelope marked as Exhibit “B”; which contained a plastic sachet marked as Exhibit “B-1”; that he conducted a requested laboratory examination and, in connection therewith, he submitted a Chemistry Report marked as Exhibit “C”.  The findings thereon showing the specimen positive for Methylamphetamine Hydrochloride was marked as Exhibit “C-1”, and the signature of the said police officer was marked as Exhibit “C-2”.  He likewise issued a Certification marked as Exhibits “D” and “D-1”, and thereafter, turned over the specimen to the evidence custodian and retrieved the same for [sic] purposed proceeding scheduled today.^[11][37]

 

While both PO2 Ibasco and PO1 Valencia testified on the identity of the plastic sachet duly marked with the initials “EIGC,” there was no sufficient proof of compliance with the chain of custody.    The records merely show that, after the arrest of accused-appellant, the specimen was allegedly turned over to the desk officer on duty, whose identity was not revealed.  Then it was the station’s OIC, P/Insp. Villanueva, who requested the forensic examination of the specimen.  In gist, from the alleged receipt of the plastic sachet containing 0.02 gram of shabu by PO2 Ibasco from the alleged buy-bust operation, the chain of custody of the specimen has not been substantially shown.  The Court cannot make an inference that PO2 Ibasco passed the specimen to an unnamed desk officer on duty until it made its way to the laboratory examination.  There are no details on who kept custody of the specimen, who brought it to the Crime Laboratory, and who received and kept custody of it until Engr. Jabonillo conducted the forensic examination.  The stipulated facts merely made an allusion that the specimen custodian of the Crime Laboratory had possession of the specimen and released it for the proceedings before the trial court. 

 

It is essential that the prohibited drug confiscated or recovered from the suspect is the very same substance offered in court as exhibit; and that the identity of said drug be established with the same unwavering exactitude as that requisite to make a finding of guilt.^[12][38]  This, the prosecution failed to do.  The prosecution must offer the testimony of key witnesses to establish a sufficiently complete chain of custody.^[13][39]

 

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Republic of thePhilippines

SUPREME COURT

Manila

 

FIRST DIVISION

 

PEOPLE OF THE PHILIPPINES,                       Plaintiff-Appellee,                –  versus  –         GARRY DE LA CRUZ y DELA CRUZ,                       Accused-Appellant.

G.R. No. 185717   Present:   CORONA, C.J., Chairperson, VELASCO, JR., LEONARDO-DE CASTRO,              DELCASTILLO, and PEREZ, JJ.   Promulgated:   June 8, 2011

x—————————————————————————————–x

 

D E C I S I O N

         

VELASCO, JR., J.:

 

The Case

 

This is an appeal from the Decision^[14][1] dated June 30, 2008 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 02727, which affirmed in toto the February 8, 2007 Decision^[15][2] in Criminal Case No. Q-03-117814 of the Regional Trial Court (RTC), Branch 82 in Quezon City. The RTC found accused Garry de la Cruz y dela Cruz (Garry) guilty beyond reasonable doubt of violating Section 5, Article II of Republic Act No. (RA) 9165 or the Comprehensive Dangerous Drugs Act of 2002.

 

 

The Facts

 

In an Information^[16][3] filed on June 3, 2003, accused was indicted for the crime allegedly committed as follows:

 

That on or about the 29^th of May, 2003, in Quezon City, Philippines, the said accused, not being authorized by law to sell, dispense, deliver, transport or distribute any dangerous drug, did, then and there, willfully and unlawfully sell, dispense, deliver, transport, distribute or act as broker in the said transaction, zero point zero two (0.02) gram of methylamphetamine hydrochloride, a dangerous drug.

 

CONTRARY TO LAW.

 

 

Upon arraignment on July 28, 2003, accused pleaded “not guilty” to the above charge.^[17][4]  Trial^[18][5] on the merits ensued.

 

Version of the Prosecution

 

After conducting surveillance for a week, the Station Drug Enforcement Unit in La Loma, Quezon Cityplanned a buy-bust operation against a certain Garry who was in the Barangay Watch List.  The operation was coordinated with the Philippine Drug Enforcement Agency (PDEA).

 

On May 29, 2003, at around 9:00 a.m., the station’s Officer-in-Charge (OIC), Police Inspector Oliver Villanueva (P/Insp. Villanueva), gave a briefing on the buy-bust operation.  Police Officer 2 Edcel Ibasco (PO2 Ibasco) was designated as poseur-buyer, while PO1 RoderickValencia(PO1 Valencia), PO1 Alfredo Mabutol, and PO2 Ronald Pascual were assigned as back-up operatives. Their informant attended the briefing.

 

Thereafter, the buy-bust team proceeded to Biak-na-Bato corner Mauban Streets, Quezon Cityand arrived there at around 9:30 a.m.  The informant introduced PO2 Ibasco to the accused, who was standing in front of a shanty, as wanting to buy shabu.  The accused asked for PhP 100, and when PO2 Ibasco paid the amount, the former handed over to him a white crystalline substance in a plastic sachet.  Upon PO2 Ibasco’s prearranged signal, the other members of the buy-bust team approached them.  The accused, sensing what was happening, ran towards the shanty but was caught by PO1 Valencia at the alley.  PO1 Valencia introduced himself as a police officer and frisked the accused, in the process recovering the buy-bust money. 

 

The buy-bust team then brought the accused to the station.  The accused was turned over to the desk officer on duty, along with the substance in the sachet bought from him and the recovered buy-bust money.  After inquest, the Information was filed on June 3, 2003.  Accused was then committed to the Quezon City Jail.^[19][6]

 

Consequently, the substance inside the sachet believed to be shabu was sent to and examined by a Philippine National Police forensic chemist, Engr. Leonard Jabonillo (Engr. Jabonillo).  The laboratory result confirmed that the substance was positive for methylamphetamine hydrochloride or shabu. 

 

Only PO2 Ibasco and PO1 Valencia testified for the prosecution during the trial.  The testimony of Engr. Jabonillo was dispensed with upon stipulation by the defense.

 

 

 

 

 

Version of the Defense

 

The accused denied selling shabu to PO2 Ibasco.  In short, the accused used the defense of denial and alleged a frame-up by the arresting officers.

 

The accused testified that he was arrested on May 29, 2003 at around 9:00 a.m. inside his house at Barangay Manresa, Quezon City while he was alone drinking coffee.  While two neighbors were talking in front of his house, a Tamaraw FX arrived.  Five armed men alighted from it, whereupon his neighbors ran away and were chased by them.  The armed men then returned, saying, “Nakatakas, nakatakbo.” (They had escaped and ran.) One of the armed men saw the accused and entered his house.  It was PO2 Ibasco, who frisked him and got PhP 60 from his pocket.  PO1 Valencia also entered his house and came out with a shoe box, then said, “Sige, isakay n’yo na.” (Take him in the car.) He asked the armed men what his violation was but was told to merely explain at the precinct.

 

In the police precinct, he was investigated and subsequently detained.  They showed him a plastic sachet which they allegedly recovered from him.  Then a man approached him and demanded PhP 30,000 for his release, but he said he did not have the money.  Thereafter, he was presented for inquest.

 

A witness, Rodolfo Buencamino (Buencamino), narrated that in the morning of May 29, 2003, he called the police precinct to have a certain “Taba,” an alleged drug pusher in their area, arrested.  PO2 Ibasco and other police officers responded immediately.  When the police officers arrived, Buencamino pointed to “Taba,” who, however, was able to evade arrest.  Thereafter, he was surprised to see the accused inside the vehicle of the policemen.  But he did not know why and where the accused was arrested since he did not witness the actual arrest.

 

Another witness, Marbelita Collado Lepiten (Lepiten), testified that she was at the terrace of her house on135 Manba St.,Manresa, San Francisco del Monte,Quezon City, when she noticed the accused talking to a certain “Taba,” a resident of the area.  When a maroon Tamaraw FX stopped in front of the house of accused, “Taba” ran away and was pursued by two men who alighted from the vehicle.  The two men returned without “Taba,” who evidently escaped, and entered the house of the accused.  She did not know what happened inside the house but she eventually saw the men push the accused outside into their vehicle. 

 

The Ruling of the RTC

 

On February 8, 2007, the RTC rendered its Decision finding the accused guilty beyond reasonable doubt of the offense charged. The dispositive portion reads: 

 

WHEREFORE, judgment is hereby rendered finding accused GARRY DELA CRUZ guilty beyond reasonable doubt of a violation of Section 5, Article II of R.A. No. 9165, and hereby sentencing him to suffer the penalty of LIFE IMPRISONMENT and to pay a fine in the amount of FIVE HUNDRED THOUSAND (P500,000.00) PESOS.

 

SO ORDERED.

 

 

In convicting the accused, the RTC relied on and gave credence to the testimony of prosecution witnesses PO2 Ibasco and PO1 Valencia.  Citing People v. Jubail,^[20][7] which enumerated the elements required to be established by the prosecution for the illegal sale of prohibited drugs, the trial court found that the prosecution had established the elements of the crime.

 

The RTC pointed out that Buencamino may, indeed, have called the police to arrest a certain “Taba,” an alleged pusher in the area, but he was not present when the accused was arrested.  The trial court likewise did not accord evidentiary weight to the testimony of Lepiten, who testified that she saw the accused talking to “Taba” and that when the police officers entered the house of the accused, she was unaware of what transpired inside.  Thus, the RTC concluded that her testimony did not provide clear and convincing justification to cast doubt on the candid and straightforward testimonies of the police officers.

 

Applying the presumption of the performance of official function, the lack of showing any ill motive on the part of the police officers to testify against the accused, and the principle that the bare denial of an accused is inherently weak, the RTC convicted the accused.

 

Consequently, with his conviction, the accused started to serve his sentence^[21][8] and was subsequently committed to the New Bilibid Prison inMuntinlupaCity.

 

Aggrieved, accused appealed^[22][9] his conviction before the CA.

 

The Ruling of the CA

 

On June 30, 2008, the appellate court rendered the appealed decision, wholly affirming the findings of the RTC and the conviction of appellant. The fallo reads:

 

WHEREFORE, premises considered, herein appeal is hereby DENIED and the assailed Decision supra is hereby AFFIRMED in toto.

 

SO ORDERED.

 

 

The CA upheld the findings of the trial court that the essential elements required for the conviction of an accused for violation of Sec. 5, Art. II of RA 9165 were present in the instant case.  The appellate court brushed aside the irregularities raised by accused-appellant by putting premium credence on the testimonies of the arresting police officers, who positively identified accused-appellant in open court.  One with the trial court, the CA found no improper motive on the part of the police officers who, it said, were regularly performing their official duties.  Besides, relying on People v. Barlaan,^[23][10] the CA held that the irregularities raised that there was no coordination with the PDEA and that no inventory was made and no photograph taken of the seized drug, if true, did not invalidate the legitimate buy-bust operation conducted.  Moreover, the CA found that the corpus delicti, i.e., the confiscated shabu and the PhP 100 bill, were presented as evidence of the commission of the offense. 

 

The CA also ruled that accused-appellant’s mere denial, as corroborated by Buencamino and Lepiten, deserved scant consideration vis-à-vis the positive identification by the arresting officers who arrested him in flagrante delicto.  Anent the questioned chain of custody, the CA found it unbroken and duly proven by the prosecution.

 

The Issues

 

Hence, We have this appeal. 

 

Only accused-appellant, however, filed his Manifestation (In Lieu of Supplemental Brief),^[24][11] while the Office of the Solicitor General (OSG), representing the People of the Philippines, submitted neither a Manifestation nor a Motion.  Consequently, on July 27, 2009, the Court dispensed with the OSG’s submission of a supplemental brief.^[25][12]  Since no new issues are raised nor supervening events transpired, We scrutinize the Brief for the Accused-Appellant^[26][13] and the Brief for the Plaintiff-Appellee,^[27][14] filed in CA-G.R. CR-H.C. No. 02727, in resolving the instant appeal. 

 

 

Thus, accused-appellant raises the same assignment of errors, in that:

 

I

 

THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF VIOLATION OF SECTION 5, ARTICLE II, REPUBLIC ACT NO. 9165.

 

II

 

THE COURT A QUO GRAVELY ERRED IN NOT GIVING WEIGHT AND CREDENCE TO ACCUSED-APPELLANT’S DEFENSE OF DENIAL.^[28][15]

 

 

The Court’s Ruling

 

The appeal is meritorious. 

 

Accused-appellant argues that, first, the prosecution has not proved his commission of the crime charged for the following irregularities: (1) the arresting officers did not coordinate with the PDEA, as required under Sec. 86 of RA 9165; (2) no physical inventory was conducted and photograph taken of the alleged seized drug in the presence of public officials, as required by Sec. 21 of RA 9165; and (3) the chain of custody was not duly proved by the prosecution. And second, his denial is worthy of credence upon corroboration by the credible witnesses presented by the defense.

 

After a careful and thorough review of the records, We are convinced that accused-appellant should be acquitted, for the prosecution has not proved beyond reasonable doubt his commission of violation of Sec. 5, Art. II of RA 9165.

 

A buy-bust operation is “a form of entrapment, in which the violator is caught in flagrante delicto and the police officers conducting the operation are not only authorized but duty-bound to apprehend the violator and to search him for anything that may have been part of or used in the commission of the crime.”^[29][16]  However, where there really was no buy-bust operation conducted, it cannot be denied that the elements for illegal sale of prohibited drugs cannot be duly proved despite the presumption of regularity in the performance of official duty and the seeming straightforward testimony in court by the arresting police officers.  After all, the indictment for illegal sale of prohibited drugs will not have a leg to stand on. 

 

This is the situation in the instant case.

 

The courts a quo uniformly based their findings and affirmance of accused-appellant’s guilt on: (1) the straightforward testimony of the arresting police officers; (2) their positive identification of accused-appellant; (3) no ill motive was shown for their testimony against accused-appellant; (4) the self-serving defense of denial by accused-appellant; (5) the seeming irregularities in the conduct of the buy-bust operation and the arrest of accused-appellant not invalidating the operation; and (6) the testimonies of Buencamino and Lepiten not showing that the buy-bust operation was not conducted.

 

Although the trial court’s findings of fact are entitled to great weight and will not be disturbed on appeal, this rule does not apply where facts of weight and substance have been overlooked, misapprehended, or misapplied in a case under appeal,^[30][17] as here.

 

For the prosecution of illegal sale of drugs to prosper, the following elements must be proved: (1) the identity of the buyer and seller, the object, and the consideration; and (2) the delivery of the thing sold and its payment.  What is material is the proof that the transaction actually took place, coupled with the presentation before the court of the corpus delicti.^[31][18]

 

In People v. Doria,^[32][19] the Court laid down the “objective test” in determining the credibility of prosecution witnesses regarding the conduct of buy-bust operations.  It is the duty of the prosecution to present a complete picture detailing the buy-bust operation—“from the initial contact between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of sale.”^[33][20]  We said that “[t]he manner by which the initial contact was made, x x x the offer to purchase the drug, the payment of the ‘buy-bust money’, and the delivery of the illegal drug x x x must be the subject of strict scrutiny by the courts to insure that law-abiding citizens are not unlawfully induced to commit an offense.”^[34][21]

 

No Surveillance Conducted

 

The testimony of PO2 Ibasco on direct examination did not mention an alleged surveillance conducted by PO2 Ibasco and PO1 Valencia prior to the alleged buy-bust operation, the corresponding intelligence report, and the written communiqué with the PDEA.  The defense in cross-examination put to task both PO2 Ibasco and PO1 Valencia concerning these matters, as attested to in the Joint Affidavit of Apprehension^[35][22] executed by the two police officers on May 30, 2003.  PO2 Ibasco testified that his unit, specifically PO1 Valencia and himself, conducted surveillance on accused-appellant for a week prior to the buy-bust operation on May 29, 2003 which, according to him, turned out positive, i.e., accused-appellant was, indeed, selling shabu.

 

PO2 Ibasco on cross-examination testified, thus:

 

ATTY. LOYOLA:

            Being an operative, you are of course, trained in intelligence work?

 

PO2 IBASCO:

            Yes, sir.

 

Q:        You said you conducted surveillance but you cannot show any proof that there is an intelligence report, you have no proof?

A:         Yes, sir.  There is, we were dispatched.

 

Q:        Where is your proof now?

A:         It’s in our office.

 

Q:        Your dispatch order for the surveillance do you have any?

A:         I don’t have it now sir but it’s in the office.

 

Q:        You said that you conducted surveillance for one week, did I hear you right?

A:         Yes, sir.

 

            x x x x

 

Q:        So, you are saying you did not actually see him selling drugs at that time during the surveillance?

A:         We saw him, sir.

 

            x x x x

 

Q:        None.  You did not even coordinate this operation with the PDEA?

A:         We coordinated it, sir.

 

Q:        What is your proof that you indeed coordinated?

A:         It’s in the office, sir.

 

ATTY. LOYOLA:

            May I make a reservation for continuance of the cross-examination considering that there are documents that the witness has to present.

 

COURT:

            What documents?

 

ATTY. LOYOLA:

            The proof your Honor that there was indeed a coordination and the intelligence report.

 

COURT:

            Will you be able to produce those documents?

A:         Yes, sir.  “Titingnan ko po.”

 

PROSECUTOR ANTERO:

            Titingnan?

 

COURT:         

            You are not sure?  You don’t have any copy of those documents?

 

A:         You Honor, what we have in the office is the dispatch.^[36][23]

 

 

PO1 Valencia, likewise, on cross-examination testified:

 

 

ATTY. LOYOLA:

            Mr. Witness, tell me during the orientation, you will agree with me that there was no coordination made to the PDEA regarding this intended buy bust operation?

 

PO1VALENCIA:

We have coordinated at the PDEA.

 

Q:        You say that but you have no proof to show us that there was coordination?

A:         We have, sir.

 

Q:        What is your proof?

A:         We have files in our office for coordination.

 

Q:        Are you sure about that?

A:         Yes, sir.

 

Q:        Now, Mr. Witness, based on the information, you already planned to conduct a buy bust operation against the accused?

A:         Yes, sir.

 

Q:        But you will agree with me that there was no surveillance against the accused?

A:         We have conducted a surveillance one week before the operation and we conducted surveillance “Pinakawalan namin ang informant.”

 

Q:        What do you mean “pinakawalan ang informant”?

A:         So that we have a spy inside to verify whether Garry was really selling shabu.

 

            x x x x

 

Q:        In fact you don’t have any information report?

A:         We have, sir.  It’s in the office.  It’s with Insp. Villanueva.

 

Q:        And because you claim that you have submitted an information and report, of course, you should have come up with an intelligence report.

A:         Yes, sir.  It’s also in the office of Insp. Villanueva.

 

            x x x x

 

Q:        And the alleged recovered item, the plastic sachet which contained white crystalline substance was brought by whom to the PNP Crime Laboratory?

A:         I cannot remember who brought it sir because it was a long time ago.^[37][24]

 

 

These documents––specifically the dispatch order, the intelligence report of the alleged surveillance, and the written communiqué from the PDEA for the conduct of the surveillance and buy-bust operation––were not, however, presented in court.  Evidently, these documents are non-existent, tending to show that there really was no surveillance and, consequently, no intelligence report about the surveillance or the averred written communiqué from PDEA attesting to coordination with said agency.  Worse, the prosecution never bothered to explain why it could not present these documents.  Thus, there is no basis to say that accused-appellant allegedly sold shabu a week before he was arrested. 

 

Even putting this lapse aside, the other irregularities raised by accused-appellant in the backdrop of the uncontroverted testimonies of Buencamino and Lepiten tend to show that there was really no buy-bust operation conducted resulting in the valid arrest of accused-appellant.

 

Generally, non-compliance with Secs. 21 and 86 of RA 9165 does not mean that no buy-bust operation against appellant ever took place.^[38][25]  The prosecution’s failure to submit in evidence the required physical inventory and photograph of the evidence confiscated pursuant to Sec. 21, Art. II of RA 9165 will not discharge the accused from the crime. Non-compliance with said section is not fatal and will not render an accused’s arrest illegal or the items seized/confiscated from him inadmissible.^[39][26]

 

 

 

 

No Buy-Bust Operation

 

But where there are other pieces of evidence putting in doubt the conduct of the buy-bust operation, these irregularities take on more significance which are, well nigh, fatal to the prosecution. 

 

Putting in doubt the conduct of the buy-bust operation are the uncontroverted testimonies of Buencamino and Lepiten, which gave credence to accused-appellant’s denial and frame-up theory.  The Court is not unaware that, in some instances, law enforcers resort to the practice of planting evidence to extract information from or even to harass civilians.^[40][27]  This Court has been issuing cautionary warnings to trial courts to exercise extra vigilance in trying drug cases, lest an innocent person is made to suffer the unusually severe penalties for drug offenses.^[41][28] 

 

The defense of frame-up in drug cases requires strong and convincing evidence because of the presumption that the law enforcement agencies acted in the regular performance of their official duties.^[42][29]  Nonetheless, such a defense may be given credence when there is sufficient evidence or proof making it to be very plausible or true.  We are of the view that accused-appellant’s defenses of denial and frame-up are credible given the circumstances of the case.  Indeed, jurisprudence has established that the defense of denial assumes significance only when the prosecution’s evidence is such that it does not prove guilt beyond reasonable doubt,^[43][30] as in the instant case.  At the very least, there is reasonable doubt that there was a buy-bust operation conducted and that accused-appellant sold the seized shabu.  After all, a criminal conviction rests on the strength of the evidence of the prosecution and not on the weakness of the defense.^[44][31]

 

Notably, Buencamino voluntarily testified to the effect that he called the police asking them to apprehend a certain “Taba,” a notorious drug pusher in their area.  PO2 Ibasco and company responded to his call and Buencamino helped identify and direct the policemen but “Taba” unfortunately escaped.  Thus, Buencamino testified:

 

ATTY. BARTOLOME:

            Mr. Witness, who asked you to testify today?

 

BUENCAMINO:

I volunteered myself to testify.

 

            x x x x

 

Q:        Can you tell us how, when and where the accused was arrested?

A:         I was the one who called-up the precinct to arrest a certain Taba and not Garry.  Taba was the target of the operation.

 

Q:        When was that?

A:         May 29, 2003.

 

Q:        Why did you call the police station?

A:         Ibasco talked to me to arrest Taba.

 

Q:        Why are they going to arrest Taba?

A:         Because he is a pusher in the area.

 

Q:        Why do you know Ibasco?

A:         Because he was a previous resident of Barangay Manresa.

 

Q:        You said you called police officer [sic] what was the topic. Mr. Witness?

A:         That Taba is already there and he already showed up and they immediately responded to arrest Taba.

 

Q:        So, Ibasco immediately responded to your call?

A:         Yes, sir.

 

Q:        When they arrived in your place what happened else, if any?

A:         I pointed to Taba so they could arrest him.

 

Q:        Where they able to arrest Taba?

A:         No, sir.  He was able to escape.

 

Q:        Whey they were not able to arrest alias Taba what happened, next Mr. Witness?  What happened to Garry Dela Cruz?

A:         I was surprised because I saw Garry Dela Cruz already inside the vehicle and I don’t know why Garry was inside the vehicle.^[45][32]

 

 

Buencamino’s assertion of knowing PO2 Ibasco was likewise not rebutted.  Moreover, the presentation of the police logbook on calls received in the morning of May 29, 2003 would indeed show if Buencamino or someone else made a call to the precinct about a certain “Taba,” but then, again, the prosecution did not bother to rebut the testimony of Buencamino.  Verily, this time the presumption “that evidence willfully suppressed would be adverse if produced”^[46][33] applies.  In fact, the prosecution did not even assail Buencamino’s credibility as a witness but merely made the point in the cross-examination that he had no actual knowledge of the arrest of accused-appellant.  Thus, Buencamino was cross-examined:

 

PROSECUTOR ANTERO:

            You were not with Garry at the time he was arrested?

 

BUENCAMINO:

No, sir.

 

Q:        You don’t know where he was arrested at that time?

A:         I don’t know where Garry was, sir.

 

PROSECUTOR ANTERO:

            That will be all, your Honor.^[47][34]

 

 

More telling is the testimony of Lepiten which, uncontroverted, shows that there was no buy-bust operation.  Her testimony corroborates the testimony of Buencamino that police enforcers indeed responded to Buencamino’s phone call but were not able to apprehend “Taba.”  This destroys the buy-bust operation angle testified to by PO2 Ibasco and PO1 Valencia.  Since the buy-bust operation allegedly happened not inside the house of accused-appellant but in an open area in front of a shanty, such cannot be sustained in light of what Lepiten witnessed: The policemen chased but were not able to arrest “Taba”; thereafter, the policemen went inside the house of accused-appellant, emerging later with him who was led to the vehicle of the policemen.  Thus, Lepiten testified:

 

 

ATTY. BARTOLOME:

            Mrs. Witness, where were you on May 29, 2003, if you could still remember?

 

COURT:

            What time?

 

ATTY. BARTOLOME:

            At around 9:00 in the morning.

 

LEPITEN:

            I was at the terrace of the house we are renting while sipping coffee.

 

Q:        Where is that house located?

A:        No. 135 Mauban Street, Barangay Manresa,Quezon City.

 

COURT:

            Where is this, Novaliches?

 

A:         No, your Honor, near San Francisco Del Monte.

 

            x x x x

 

ATTY. BARTOLOME:

            While drinking coffee, what transpired next,Mrs.Witness or was there any unusual thing that happened?

A:         Yes, sir.  While I was sitting on the terrace in front of the house we are renting is the house of Garry.   Garry was talking to a certain Taba whom I know.

 

            x x x x

 

Q:        While you saw them talking to each other, what happened next?

A:         Suddenly a maroon FX stopped.

 

Q:        Where?

A:         In front of the house of Garry.

 

Q:        When this maroon FX stopped, what happened next, if any?

A:         Taba ran, sir.

 

Q:        What happened next, if any?

A:         Two (2) men in blue pants and white shirt alighted from the maroon FX and ran after Taba.

 

Q:        Were they able to arrest Taba, Ms. Witness?

A:         No, sir.  They were not able to catch him.

 

Q:        When they failed to arrest Taba, what did these two (2) men do, if any?

A:         They returned in front of the house and Garry and I saw them entered the house of Garry.

 

            x x x x

 

Q:        What did they do, if any?

A:         I don’t know what they did inside because I could not see them, sir.  Then I saw them went down and pushed Garry towards the FX.

 

            x x x x

 

Q:        After that what else happened, if any?

A:         I just saw that they boarded Garry inside the FX.

 

            x x x x

 

COURT:

            Any cross?

 

PROSECUTOR ANTERO:

            No cross, your Honor.^[48][35]

 

 

Thus, taking into consideration the defense of denial by accused-appellant, in light of the foregoing testimonies of Buencamino and Lepiten, the Court cannot conclude that there was a buy-bust operation conducted by the arresting police officers as they attested to and testified on.  The prosecution’s story is like a sieve full of holes.

 

Non-Compliance with the Rule on Chain of Custody

 

 

Moreover, the prosecution failed to sufficiently prove the requisite chain of custody of the seized specimen.  “Chain of custody” means the duly recorded authorized movements and custody of seized drugs or controlled chemicals from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction.^[49][36]  The CA found an unbroken chain of custody of the purportedly confiscated shabu specimen.  However, the records belie such conclusion.

 

The testimonies of PO2 Ibasco and PO1 Valencia, as well as their Joint Affidavit of Apprehension, were bereft of any assertion on how the seized shabu in a heat-sealed sachet was duly passed from PO2 Ibasco, the chosen poseur-buyer, who allegedly received it from accused-appellant, to forensic chemist Engr. Jabonillo, who conducted the forensic examination.  While the testimony of Engr. Jabonillo was dispensed with upon stipulation by the defense, as duly embodied in the RCT Order dated March 16, 2004, it is likewise bereft of any assertion substantially proving the custodial safeguards on the identity and integrity of the shabu allegedly received from accused-appellant.  The stipulation merely asserts:

x x x that he is a Forensic Chemist of the Philippine National Police; that his office received a request for laboratory examination marked as Exhibit “A”; that together with said request is a brown envelope marked as Exhibit “B”; which contained a plastic sachet marked as Exhibit “B-1”; that he conducted a requested laboratory examination and, in connection therewith, he submitted a Chemistry Report marked as Exhibit “C”.  The findings thereon showing the specimen positive for Methylamphetamine Hydrochloride was marked as Exhibit “C-1”, and the signature of the said police officer was marked as Exhibit “C-2”.  He likewise issued a Certification marked as Exhibits “D” and “D-1”, and thereafter, turned over the specimen to the evidence custodian and retrieved the same for [sic] purposed proceeding scheduled today.^[50][37]

 

 

While both PO2 Ibasco and PO1 Valencia testified on the identity of the plastic sachet duly marked with the initials “EIGC,” there was no sufficient proof of compliance with the chain of custody.    The records merely show that, after the arrest of accused-appellant, the specimen was allegedly turned over to the desk officer on duty, whose identity was not revealed.  Then it was the station’s OIC, P/Insp. Villanueva, who requested the forensic examination of the specimen.  In gist, from the alleged receipt of the plastic sachet containing 0.02 gram of shabu by PO2 Ibasco from the alleged buy-bust operation, the chain of custody of the specimen has not been substantially shown.  The Court cannot make an inference that PO2 Ibasco passed the specimen to an unnamed desk officer on duty until it made its way to the laboratory examination.  There are no details on who kept custody of the specimen, who brought it to the Crime Laboratory, and who received and kept custody of it until Engr. Jabonillo conducted the forensic examination.  The stipulated facts merely made an allusion that the specimen custodian of the Crime Laboratory had possession of the specimen and released it for the proceedings before the trial court. 

 

It is essential that the prohibited drug confiscated or recovered from the suspect is the very same substance offered in court as exhibit; and that the identity of said drug be established with the same unwavering exactitude as that requisite to make a finding of guilt.^[51][38]  This, the prosecution failed to do.  The prosecution must offer the testimony of key witnesses to establish a sufficiently complete chain of custody.^[52][39]

 

As the Court aptly put in People v. Cantalejo:

 

x x x the failure of the police to comply with the procedure in the custody of the seized drugs raises doubt as to its origins.

 

x x x failure to observe the proper procedure also negates the operation of the presumption of regularity accorded to police officers.  As a general rule, the testimony of police officers who apprehended the accused is usually accorded full faith and credit because of the presumption that they have performed their duties regularly.  However, when the performance of their duties is tainted with irregularities, such presumption is effectively destroyed.

 

While the law enforcers enjoy the presumption of regularity in the performance of their duties, this presumption cannot prevail over the constitutional right of the accused to be presumed innocent and it cannot by itself constitute proof of guilt beyond reasonable doubt.^[53][40]

 

 

In sum, considering the multifarious irregularities and non-compliance with the chain of custody, We cannot but acquit accused-appellant on the ground of reasonable doubt.  The law demands that only proof of guilt beyond reasonable doubt can justify a verdict of guilt.^[54][41]  In all criminal prosecutions, without regard to the nature of the defense which the accused may raise, the burden of proof remains at all times upon the prosecution to establish the guilt of the accused beyond reasonable doubt.^[55][42]  As the Court often reiterated, it would be better to set free ten men who might probably be guilty of the crime charged than to convict one innocent man for a crime he did not commit.^[56][43]

 

In fine, We repeat what the Court fittingly held in People v. Ong, a case similarly involving a buy-bust operation, thus:

 

The Constitution mandates that an accused shall be presumed innocent until the contrary is proven beyond reasonable doubt.  While appellant’s defense engenders suspicion that he probably perpetrated the crime charged, it is not sufficient for a conviction that the evidence establishes a strong suspicion or probability of guilt.   It is the burden of the prosecution to overcome the presumption of innocence by presenting the quantum of evidence required.

 

In the case at bar, the basis of acquittal is reasonable doubt, the evidence for the prosecution not being sufficient to sustain and prove the guilt of appellants with moral certainty.  By reasonable doubt is not meant that which of possibility may arise but it is that doubt engendered by an investigation of the whole proof and an inability, after such an investigation, to let the mind rest easy upon the certainty of guilt.  An acquittal based on reasonable doubt will prosper even though the appellants’ innocence may be doubted, for a criminal conviction rests on the strength of the evidence of the prosecution and not on the weakness of the evidence of the defense.  Suffice it to say, a slightest doubt should be resolved in favor of the accused.^[57][44]

 

 

WHEREFORE, the instant appeal is GRANTED. Accused-appellant Garry De La Cruz y Dela Cruz is hereby ACQUITTED of the crime charged on basis of reasonable doubt. Accordingly, the CA Decision dated June 30, 2008 in CA-G.R. CR-H.C. No. 02727 is SET ASIDE.  The Director of the Bureau of Corrections is ordered to cause the immediate release of accused-appellant, unless he is being lawfully held for another cause.

 

No costs.

 

 

 

SO ORDERED.

 

 

 

                                                          PRESBITERO J. VELASCO, JR.

                                                                     Associate Justice

 

 

WE CONCUR:

 

 

 

RENATO C. CORONA

Chief Justice

Chairperson

  

 

 

TERESITA J. LEONARDO-DE CASTRO         MARIANO C. DEL CASTILLO        

    Associate Justice                                                  Associate Justice

 

 

 

JOSE PORTUGAL PEREZ

Associate Justice

 

 

C E R T I F I C A T I O N

 

                Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

 

 

                                                                   RENATO C. CORONA

                                                                            Chief Justice

 

 

CASE NO. 2011-0130: CLAY & FEATHER INTERNATIONAL, INC., RAUL O. ARAMBULO, AND ADAM E. JIMENEZ III (FOR THEMSELVES AND FOR CLAY AND FEATHER INTL., INC. VS. ALEXANDER T. LICHAYTOO AND CLIFFORD T. LICHAYTOO (G.R. NO. 193105, 30 MAY 2011, NACHURA, J.) SUBJECTS: PROBABLE CAUSE; THEFT. (BRIEF TITLE: CLAY & FEATHER INTERNATIONAL VS. LICHAYTOO).

===================

 

SUBJECT: PROBABLE CAUSE

 

Probable cause, for purposes of filing a criminal information, has been defined as such facts as are sufficient to engender a well-founded belief that a crime has been committed and that respondent is probably guilty thereof, and should be held for trial. Probable cause is meant such set of facts and circumstances, which would lead a reasonably discreet and prudent man to believe that the offense charged in the Information, or any offense included therein, has been committed by the person sought to be arrested. In determining probable cause, the average person weighs facts and circumstances without resorting to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense. A finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has been committed and that it was committed by the accused. Probable cause demands more than bare suspicion, but it requires less than evidence that would justify a conviction.^[1][17]

 

        A finding of probable cause does not require an inquiry as to whether there is sufficient evidence to secure a conviction. It is enough that the act or omission complained of constitutes the offense charged.^[2][18] The term does not mean “actual and positive cause” nor does it import absolute certainty. It is merely based on opinion and reasonable belief.  A trial is intended precisely for the reception of prosecution evidence in support of the charge. The court is tasked to determine guilt beyond reasonable doubt based on the evidence presented by the parties at a trial on the merits.^[3][19] 

 

SUBJECT: THEFT AND QUALIFIED THEFT

 

                To constitute the crime of Theft, defined and penalized under Article 308^[4][20] of the Revised Penal Code, the following elements must be established that: (1) there be taking of personal property; (2) said property belongs to another; (3) the taking be done with intent to gain; (4) the taking be done without the consent of the owner; and (5) the taking be accomplished without use of violence against or intimidation of persons or force upon things.^[5][21]

 

        Theft is qualified under Article 310^[6][22] of the Revised Penal Code under the following circumstances: (1) if the theft is committed by a domestic servant; (2) if the theft is committed with grave abuse of confidence; (3) if the property stolen is a (a) motor vehicle, (b) mail matter, or (c) large cattle; (4) if the property stolen consists of coconuts taken from the premises of a plantation; (5) if the property is fish taken from a fishpond or fishery; or (6) if property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident, or civil disturbance.

 

==========================

 

 

Republic of thePhilippines

Supreme Court

Manila

 

SECOND DIVISION

 

 

CLAY & FEATHER INTERNATIONAL, INC., RAUL O. ARAMBULO, and ADAM E. JIMENEZ III (for themselves and for Clay and Feather Intl., Inc., Petitioners,                    – versus –       ALEXANDER T. LICHAYTOO and CLIFFORD T. LICHAYTOO, Respondents.

G.R. No. 193105   Present:   CARPIO, J.,      Chairperson, NACHURA, PERALTA, ABAD, and MENDOZA, JJ.   Promulgated:      May 30, 2011

 x———————————————————————————x

 

 

RESOLUTION

 

NACHURA, J.:

                            

 

 

          Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the Decision^[7][1] dated February 26, 2010 and the Resolution^[8][2] dated July 21, 2010 of the Court of Appeals (CA) in CA-G.R. SP No. 111007.

 

          The facts of the case are, as follows:

 

          Petitioners Raul Arambulo (Arambulo) and Adam E. Jimenez III (Jimenez) and respondents Alexander T. Lichaytoo (Alexander) and Clifford Lichaytoo (Clifford) are stockholders and incorporators of Clay & Feather International, Inc. (CFII), a domestic corporation engaged in the business of marketing guns and ammunitions. Petitioner Arambulo is the President of CFII, while petitioner Jimenez is a member of the Board of Directors. On the other hand, respondent Alexander is the Corporate Secretary of CFII, while respondent Clifford is its Chief Finance Officer/Treasurer. Petitioners own fifty percent (50%) of the shares of stock of CFII, and respondents own the remaining 50%.^[9][3]

 

          In a complaint-affidavit dated April 4, 2008, petitioners charged respondents before the Office of the City Prosecutor of Makati with the crime of five (5) counts of Qualified Theft, defined and penalized under Article 310, in relation to Article 308, of the Revised Penal Code.^[10][4]

 

          Petitioners alleged that sometime in February 2006 to November 2007, respondents, by virtue of their positions in CFII and with grave abuse of confidence, intentionally, maliciously, and feloniously, with intent to gain and to profit thereby, took several firearms owned by CFII without the knowledge and consent of the corporation and its stockholders. The firearms taken are, as follows:

 

Source of Firearms	Kind	Make	Caliber	Serial No.	Date Taken	Amount
1.  C & F	Shotgun	Beretta DT10 Skeet	12ga	AG0222B	February 2006	Euro 3,577.00
2.  C & F	Shotgun	Beretta DT10 LTD  Trap	12ga	AF9670B	February 2006	Euro 3,894.00
3.  C & F	Shotgun	Beretta DT10L Trap	12ga	AF6715B	November 2007	Euro 5,091.00
4.  C & F	Shotgun	Beretta	20ga	AA311917 AB315666	June 2007	Euro 590
5.  C & F	Shotgun	Beretta	12ga	C15987B	November 2006	Euro 12,066.00
TOTAL AMOUNT						Euro 25,218.00*

           

*Philippine Currency equivalent is One Million Six Hundred Thirty Nine Thousand One Hundred Seventy Pesos (P1,639,170.00) at the rate of Sixty-Five Pesos per Euro (P65/Euro).^[11][5]

 

          In their counter-affidavit dated May 5, 2008, respondents sought the dismissal of the criminal complaint, and stressed that petitioners filed the same as a form of harassment intended to divest respondents of their interests in CFII, as well as in retaliation of the criminal complaint for Qualified Theft that they previously filed against petitioner Arambulo. They argued that there was no basis for petitioners to charge them with Qualified Theft, as the subject firearms were purchased by them, and were, in fact, already paid in full. They averred that since CFII does not maintain a Euro bank account, all foreign exchange payments for the company’s purchases of guns and ammunitions were deposited in respondents’ Euro bank accounts with Hongkong and Shanghai Bank.  Like all corporate financial transactions of CFII, the payments for the subject firearms described in items 1, 2, and 5 were deposited in the Euro accounts of respondents. As payments for the firearms described in items 1 and 2, which cost Euro 3,577.00 and Euro 3,894.00, respectively, respondents deposited the total amount of Euro 7,471.00 in the Euro bank account under the name “Clifford/Alexander Lichaytoo.” As to the firearm described in item 5, the amount of Euro 12,066.00 was debited from the Euro account under the name “Clifford/Melissa Lichaytoo.” Respondents claimed that even petitioner Arambulo did this practice when he himself purchased guns from CFII.^[12][6]

 

          Respondents further claimed that the firearms described in items 3 and 4 were paid by way of offsetting against advances made by respondent Alexander for CFII’s importation of 2,000 Beretta 92s pistols. They alleged that these transactions were fully accounted for and disclosed to the auditor, who was chosen by petitioners themselves, and that petitioner Arambulo was aware of the offsetting for the firearms described in items 3 and 4, since he was closely monitoring the payments made by CFII to respondent Alexander.^[13][7]

          On May 9, 2008, petitioners filed a reply-affidavit, refuting the arguments of respondents. They admitted that CFII does not have a Euro bank account in its name, and that the corporation uses the Euro bank accounts of respondents to send payments in Euros to their suppliers. However, petitioners stressed that respondents cannot claim ownership of the funds, which were sent to the suppliers of the firearms, since the foreign currency (Euro) was purchased from currency dealers using CFII funds generated from its corporate funds and orders paid in advance by its customers. Thus, petitioners argued that this fact does not indicate that the funds used and deposited by respondents in paying for the firearms under items 1,2, and 5 were respondent Alexander’s personal funds. In the same manner, the remittances to CFII suppliers withdrawn from the Euro bank accounts of petitioners do not show to which supplier and to what particular firearms the deposits and payments pertain. No concrete proof was shown that the firearms under items 3 and 4 were indeed the subject of offsetting from the advances made by respondent Alexander to CFII’s purchase of the 2,000 Beretta 92s pistols. The petty cash vouchers attached to the counter-affidavit of respondents were too general, there being no particular breakdown and official receipts presented to correlate the same to the alleged offsetting.^[14][8]

 

          After the submission of the rejoinder-affidavit of respondents and of the sur-rejoinder affidavit of petitioners, and after the requisite preliminary investigation, the Office of the City Prosecutor of Makati City issued a Resolution^[15][9] on July 7, 2008, the fallo of which reads:

            Foregoing considered, it is respectfully recommended that the complaint against respondents Clifford T. Lichaytoo and Alexander T. Lichaytoo for the crime of Qualified Theft be DISMISSED for insufficiency of evidence.^[16][10]

          Aggrieved, petitioners filed a petition for review before the Office of the Secretary of the Department of Justice. On June 2, 2009, the Secretary of Justice issued a resolution,^[17][11] the dispositive portion of which reads:

 

            WHEREFORE, premises considered, the instant Petition is hereby GRANTED and the Resolution of the Office of the City Prosecutor of Makati dated July 7, 2008 is hereby REVERSED and SET ASIDE. The Office of the City Prosecutor of Makati is hereby ordered to file the necessary information/s against [respondents] Alexander and Clifford Lichaytoo and to report the action taken within ten (10) days from the receipt hereof.

 

            SO ORDERED.^[18][12]

 

            Respondents filed a motion for reconsideration. However, the same was denied in a resolution^[19][13] dated August 20, 2009. Respondents then filed a petition for certiorari with prayer for the issuance of a temporary restraining order and/or  writ  of preliminary injunction under Rule 65 of the Rules of Court before the CA. On February 26, 2010, the CA rendered a Decision,^[20][14] the dispositive portion of which reads:

 

            WHEREFORE, premises considered, the instant Petition for Certiorari is hereby GRANTED. The assailed Resolutions dated June 2, 2009 and August 20, 2009 of public respondent Secretary of Justice are ANNULLED. Accordingly, the Resolution dated July 7, 2008 of the Office of the City Prosecutor of Makati City dismissing the complaint for Qualified Theft is REINSTATED. The Regional Trial Court, Branch 150, Makati City is ORDERED to DISMISS and QUASH the Informations for Qualified Theft against [respondents].

 

            SO ORDERED.^[21][15]   

          Petitioners filed a motion for reconsideration. On July 21, 2010, the CA issued a Resolution^[22][16] denying the said motion. Hence, the instant petition.    

 

          The sole issue for resolution is whether the CA committed reversible error in ordering the dismissal of the information for 5 counts of Qualified Theft against respondents. The resolution of the issue requires a determination of the existence of probable cause, in order to indict respondents for Qualified Theft.

          We rule in favor of petitioners.

          Probable cause, for purposes of filing a criminal information, has been defined as such facts as are sufficient to engender a well-founded belief that a crime has been committed and that respondent is probably guilty thereof, and should be held for trial. Probable cause is meant such set of facts and circumstances, which would lead a reasonably discreet and prudent man to believe that the offense charged in the Information, or any offense included therein, has been committed by the person sought to be arrested. In determining probable cause, the average person weighs facts and circumstances without resorting to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense. A finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has been committed and that it was committed by the accused. Probable cause demands more than bare suspicion, but it requires less than evidence that would justify a conviction.^[23][17]

 

          A finding of probable cause does not require an inquiry as to whether there is sufficient evidence to secure a conviction. It is enough that the act or omission complained of constitutes the offense charged.^[24][18] The term does not mean “actual and positive cause” nor does it import absolute certainty. It is merely based on opinion and reasonable belief.  A trial is intended precisely for the reception of prosecution evidence in support of the charge. The court is tasked to determine guilt beyond reasonable doubt based on the evidence presented by the parties at a trial on the merits.^[25][19] 

 

          To constitute the crime of Theft, defined and penalized under Article 308^[26][20] of the Revised Penal Code, the following elements must be established that: (1) there be taking of personal property; (2) said property belongs to another; (3) the taking be done with intent to gain; (4) the taking be done without the consent of the owner; and (5) the taking be accomplished without use of violence against or intimidation of persons or force upon things.^[27][21]

 

          Theft is qualified under Article 310^[28][22] of the Revised Penal Code under the following circumstances: (1) if the theft is committed by a domestic servant; (2) if the theft is committed with grave abuse of confidence; (3) if the property stolen is a (a) motor vehicle, (b) mail matter, or (c) large cattle; (4) if the property stolen consists of coconuts taken from the premises of a plantation; (5) if the property is fish taken from a fishpond or fishery; or (6) if property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident, or civil disturbance.

 

 

          In the instant case, the affidavit-complaint and the pleadings petitioners filed with the Office of the City Prosecutor sufficiently show all the elements of theft. The evidence on hand sufficiently shows that, more likely than not, the crime of Qualified Theft has been committed and the same was committed by respondents. There was unlawful taking by respondents of the subject firearms that incontestably belonged to CFII. The taking was without the consent of the owner CFII and was accomplished without the use of violence against or intimidation of persons or force upon things. Furthermore, the subject firearms were taken with grave abuse of confidence in as much as respondents could not have taken the subject firearms if not for the positions that they held in the company. This last circumstance qualifies the offense charged.  However, our pronouncement as to the existence of probable cause does not delve into the merits of the case; neither do we pronounce that the evidence is sufficient to secure a conviction.

 

          The counter-allegations of respondents essentially delve on evidentiary matters that are best passed upon in a full-blown trial. The issues upon which the charges are built pertain to factual matters that cannot be threshed out conclusively during the preliminary stage of the case. Precisely, there is a trial for the presentation of prosecution’s evidence in support of the charge.^[29][23] The presence or absence of the elements of the crime is evidentiary in nature and is a matter of defense that may be passed upon after a full-blown trial on the merits. The validity and merits of a party’s defense or accusation, as well as admissibility of testimonies and evidence, are better ventilated during trial proper than at the preliminary investigation level.^[30][24]

 

          WHEREFORE, in view of the foregoing, the instant petition is GRANTED. The Decision dated February 26, 2010 and the Resolution dated July 21, 2010 of the Court of Appeals in CA-G.R. SP No. 111007 are hereby REVERSED and SET ASIDE. The Resolution of the Secretary of Justice dated June 2, 2009 is hereby REINSTATED.

 

SO ORDERED.

 

 

 

                                      ANTONIO EDUARDO B. NACHURA

                                      Associate Justice

 

 

WE CONCUR:

 

 

 

ANTONIO T. CARPIO

Associate Justice

Chairperson

 

 

 

DIOSDADO M. PERALTA Associate Justice

ROBERTO A. ABAD Associate Justice

 

 

 

JOSE CATRAL MENDOZA

Associate Justice

 

 

A T T E S T A T I O N

 

          I attest that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

 

 

 

                                      ANTONIO T. CARPIO

                                      Associate Justice

                                      Chairperson, Second Division

C E R T I F I C A T I O N

 

          Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I certify that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

 

 

 

                                      RENATO C. CORONA

                                      Chief Justice

 

 

 

CASE NO. 2011-0129: ESTATE OF PASTOR M. SAMSON, REPRESENTED BY HIS HEIR ROLANDO B. SAMSON VS. MERCEDES R. SUSANO AND NORBERTO R. SUSANO (G.R. NO. 179024) ; JULIAN C. CHAN VS. MERCEDES R. SUSANO AND NORBERTO R. SUSANO (G.R. NO. 179086, 30 MAY 2011, VILLARAMA, JR., J.) SUBJECTS: OPERATION LAND TRANSFER; P.D. 27; DEFINITION OF TENANT; TENANCY RELATIONSHIP A QUESTION OF FACT. (BRIEF TITLE: ESTATE OF SAMSON VS. SUSANO).

==================================

SUBJECT: INSTANCES WHEN LAND CANNOT BE SUBJECT TO THE OLT PROGRAM OF P.D. NO. 27.

We find in favor of petitioners. Applying our pronouncement in Levardo v. Yatco, we rule that the subject land cannot be subject to the OLT program of P.D. No. 27 for two reasons: first, the subject land is less than seven hectares; and second, respondents failed to show that Pastor owned other agricultural lands in excess of seven hectares or urban land from which he derived adequate income, as required by Letter of Instruction (LOI) No. 474.

. . . . .

SUBJECT: DEFINITION OF TENANT.

R.A. No. 1199,  otherwise known as the Agricultural Tenancy Act of the Philippines, defines a tenant as a person who, himself and with the aid available from within his immediate farm household, cultivates the land belonging to, or possessed by, another, with the latter’s consent for purposes of production, sharing the produce with the landholder under the share tenancy system, or paying the landholder a price certain or ascertainable in produce or in money or both, under a leasehold tenancy system.

For a tenancy relationship to exist between the parties, the following essential elements must be shown: (1) the parties are the landowner and the tenant; (2) the subject matter is agricultural land; (3) there is consent between the parties; (4) the purpose is agricultural production; (5) there is personal cultivation by the tenant; and (6) there is sharing of the harvests between the parties. The presence of all of these elements must be proved by substantial evidence.

. . . . .

SUBJECT: TENANCY RELATIONSHIP IS QUESTION OF FACT.

The question of whether a tenancy relationship exists is basically a question of fact which, as a general rule, is beyond the scope of a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended.  The question of whether there was an implied tenancy and sharing are basically questions of fact and the findings of the Court of Appeals and the Boards a quo are, generally, entitled to respect and nondisturbance, as long as they are supported by substantial evidence.  Such findings of fact may be reviewed by the Court when the conclusion is a finding grounded entirely on speculation, surmises or conjectures, or if the findings of fact are conclusions without citation of specific evidence on which they are based.

============================

 

 

THIRD DIVISION

 

ESTATE OF PASTOR M. SAMSON, represented by his heir ROLANDO B. SAMSON,                              Petitioner,                        – versus –     MERCEDES R. SUSANO and NORBERTO R. SUSANO,                              Respondents.	G.R. No. 179024
x- – – – – – – – – – – – – – – – – – – – – – – – – -x   JULIAN C. CHAN,                              Petitioner,                            – versus –         MERCEDES R. SUSANO and NORBERTO R. SUSANO,                    Respondents.	G.R. No. 179086            Present:          Carpio Morales, J.,                                 Chairperson,        brion,        BERSAMIN,        VILLARAMA, JR., and        SERENO, JJ.          Promulgated:        May 30, 2011

x- – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – -x

 

DECISION

VILLARAMA, JR., J.:

Before us are two consolidated petitions for review on certiorari seeking to reverse the August 31, 2006 Decision^[1][1] and the July 27, 2007 Resolution^[2][2] of the Court of Appeals (CA) in CA-G.R. SP Nos. 89052 and 89443. The CA dismissed the separate appeals filed by herein petitioners Estate of Pastor M. Samson, represented by Rolando B. Samson, and Julian C. Chan from the November 7, 2003 Decision^[3][3] and December 29, 2004 Resolution^[4][4] of the Department of Agrarian Reform Adjudication Board (DARAB), Central Office.

The Facts

Pastor M. Samson (Pastor) owned a 1.0138-hectare parcel of land known as Lot 1108 of the Tala Estate Subdivision located in Bagumbong, Caloocan City and covered by Transfer Certificate of Title (TCT) No. 65174. In 1959, Pastor was approached by his friend Macario Susano (Macario) who asked for permission to occupy a portion of Lot1108 to build a house for his family. Since Pastor was godfather to one of Macario’s children, Pastor acceded to Macario’s request. Macario and his family occupied 620 square meters of Lot1108 and devoted the rest of the land to palay cultivation. Herein respondents, Macario’s wife Mercedes R. Susano and their son Norberto R. Susano, insist that while no agricultural leasehold contract was executed by Pastor and Macario, Macario religiously paid 15 cavans of palay per agricultural year to Pastor, which rent was reduced by Pastor in 1986 to 8 cavans of palay per agricultural year.^[5][5]

In 1973, Pastor subdivided Lot 1108 into three portions, to wit: Lot 1108-A having an area of 3,172 square meters and covered by TCT No. 52637; Lot 1108-B having an area of 270 square meters and covered by TCT No. 52635; and Lot 1108-C having an area of 6,696 square meters and covered by TCT No. 52638. The first and last parcels, namely Lots 1108-A and 1108-C, remained registered in Pastor’s name while Lot 1108-B was sold to Jimena Novera in 1973 without Macario’s knowledge.^[6][6]

In 1979, Pastor sold 2,552 square meters of Lot1108-A to spouses Felix Pacheco and Juanita Clamor, allegedly also without Macario’s knowledge and consent. As a result of the sale, Lot 1108-A was further subdivided into three portions: (1) Lot 1108-A-1 measuring 620 square meters and covered by TCT No. 137744 in Pastor’s name; (2) Lot 1108-A-2 measuring 2,361 square meters and covered by TCT No. 137745; and (3) Lot 1108-A-3 measuring 191 square meters and covered by TCT No. 137746. The last two parcels are registered in the name of spouses Felix Pacheco and Juanita Clamor.^[7][7]

Lots 1108-A-1 and 1108-C comprising a total area of 7,316 square meters remained occupied and cultivated by Macario and his family.

On February 28, 1989, Pastor sold Lot1108-C to petitioner Julian Chan.^[8][8] Consequently, TCT No. 52638 was cancelled and TCT No. 176758 was issued in Chan’s name.

According to respondents, no written notice was sent by Pastor to Macario prior to the sale to Chan of Lot 1108-C comprising an area of 6,696 square meters. They aver that Macario came to know of the transaction only after Chan visited the property sometime in October 1990 accompanied by an employee from the city government.^[9][9]

Chan, on the other hand, claims that prior to buying Lot1108-C from Pastor, he ascertained the location and condition of the property. He maintains that he knew the property to be a residential lot as indicated in Tax Declaration No. B-026-09768 issued over the said property by the Caloocan City Assessor’s Office.^[10][10]

On November 1990, Macario received a letter from Pastor’s lawyer demanding that he vacate the property within twenty (20) days.^[11][11] Aggrieved, Macario filed a complaint against Pastor before the Municipal Agrarian Reform Office (MARO) of Valenzuela.^[12][12]

Meanwhile, it appears that Chan and Macario tried to settle amicably the dispute as between them. On September 26, 1991, Macario and his wife Mercedes executed a notarized document entitled, “Kusang-Loob na Pagtatalaga” (Deed of Undertaking)^[13][13] wherein Macario, recognizing that Chan is a buyer in good faith, acknowledged the latter’s ownership over the said landholding. The said document provides, viz:

KUSANG-LOOB NA PAGTATALAGA (DEED OF UNDERTAKING)

ALAMIN NG LAHAT:

            Kami na sina MACARIO SUSANO at MERCEDES SUSANO, mag-asawa, Pilipino at naninirahan sa Bagumbong,KalookanCity, ay nagsaysay ng mga sumusunod:

1.      Na kami ang naghain ng reclamo sa Agrarian Reform Office sa Valenzuela, Metro Manila laban kay Ginoong Pastor Samson ngKaloocanCity;

2.      Na ang aming reclamo laban kay Ginoong Pastor Samson ay ng ipagbile niya ang isang lote na may laking 6696 metro cudrados (sic), humigit kumulang, na kami ang nagsasaka na hindi kami pinagsabihan labag sa batas ng Land Reform;

3.      Na ang nasabing lote ay ipinagbile kay Ginoong Jul[ia]n Chan na sa aming pagkakaalam [ay] binile ang nasabing lote in good faith at hindi alam na kami ang nagsasaka;

4.      Amin din [napag-alaman] na si Ginoong Jul[ia]n Chan [ay] binile ang nasabing lote sa kadahilanan na ang ipinakitang Tax Declaration ni Ginoong Pastor Samson ay hindi taniman ng palay kundi isang lugar na tirikan ng mga bahay lamang (residential area) at hindi labag sa Batas ng Land Reform;

5.      Sa kadahilanan na si Ginoong Julian Chan ay binile ang nasabing lote na walang alang-alang (in good faith) at umasa sa Tax Declaration na ipinakita sa kanya, kami at sampo ng aking (sic) mga anak [ay] kinikilala ang kanyang pagmamay[-]ari at aming iginagalang ang kanyang karapatan bilang may[-]ari at kami ay [nangangako] na hindi namin siya o ang kanyang familia gagambalain, tatakutin o bibigyan ng ano mang kaguluhan sa nasabing lote;

6.      Aming din [ipinangangako] na si Ginoong Julian Chan at ang kanyang familia ay may laya na dalawin sa anumang oras ng gabi or (sic) araw ang nasabing lote at ibig naming paabutin sa Agrarian Reform Office sa Valenzuela na huwag isangkot si Ginoong Julian Chan sa aming gusot ni Ginoong Pastor Samson.

            Sa katunayan ng lahat, kami lumagda ngayon ika-26 ng Septiembre, 1991 dito sa Manila.

 

(signed)                                                                        (thumbmarked)

MACARIO SUSANO                                     MERCEDES SUSANO

 

Assisted by:    (signed)

                        Atty. Valeriano T. Tolentino

Sa harap nila:

(signed)                                                                        (signed)

FABIAN SUSANO                                         REYNALDO M. JOSON

                        x x x x

Two other similar documents dated September 26, 1991 were executed by Macario and Mercedes in favor of Chan.^[14][14] In one of these documents, Macario and Mercedes acknowledged the receipt of P10,000.00 from Chan,^[15][15] as follows:

ALAMIN NG SINO MANG MAKABASA NITO:

            Kaming mag-asawang Macario at Mercedes Susano ay nagpapasalamat sa malaking tulong na ibinigay sa aming familia ni Ginoong Julian Chan na sa aming kagipitan ay binigyan kami ng halagang P10,000.00 peso (sic) bagaman wa[l]ang pag-kakautang o obligacion sa amin.

            Sa aming malaking pagpapasalamat at kagalakan ay masasabi naming wala siyang ligalig o pa[n]gamba na aming hahadla[n]gan ang kanyang pagkakabile ng isang parcelang lupa kay Ginoong Pastor Samson na aming iginagalang at kinikilala bagaman yoong (sic) nasabing lupa ay aming tinatrabaho nang pag-aari pa ni Ginoong Pastor Samson.

            Sa katunayan ng lahat na nasasaad sa itaas, kaming mag-asawa ay lumagda ngayon[g] ika-26 ng Septiembre, 1991 dito sa Kalookan City.

 

                (signed)                                                (thumbmarked)

            MACARIO SUSANO                         MERCEDES SUSANO

 

            SA HARAP NILA:

            (illegible)                                                           (illegible)

On April 9, 1992, Chan and Macario, assisted by their respective counsels, executed a Joint Motion and Manifestation^[16][16] wherein Macario promised to surrender possession of the property to Chan on or before November 30, 1992.

On February 9, 1993, Macario died and was succeeded by respondents in the possession and cultivation of the subject landholding.

Thereafter, on August 17, 1993 respondents filed an action for maintenance of peaceful possession^[17][17] with prayer for the issuance of a restraining order/preliminary injunction and for the redemption of the subject landholding against Pastor and Chan before the Department of Agrarian Reform Adjudication Board (DARAB) of Region IV. Specifically, the complaint prayed for the inclusion of the 7,316-square meter portion of said landholding, or Lots 1108-A-1 and 1108-C, within the Coverage of the Operation Land Transfer (OLT) Program under Presidential Decree (P.D.) No. 27^[18][18] or The Tenant Emancipation Decree. They also asked that an emancipation patent be issued in their favor.  They tendered P12,052.80 in cash representing the reasonable redemption price over the subject landholding based on the highest land valuation prescribed by the DAR on unirrigated rice land.^[19][19] Said amount was accepted by the DAR Regional Cashier per Order^[20][20] of DARAB Regional Adjudicator Fe Arche-Manalang.

In his Answer,^[21][21] Chan maintained that he is a buyer in good faith and that he relied on the tax declaration which stated that the subject property is residential in character. He also averred that agreements were made between him and Macario recognizing his ownership over the said land in exchange for P25,000 paid by him to Macario, P10,000 of which was duly acknowledged by Macario in writing.^[22][22] Chan insisted that Macario also promised to surrender possession of the property to him on or before November 30, 1992.

Pastor, on the other hand, filed a Motion to Dismiss citing the pendency of the complaint filed against him before the MARO of Valenzuela and alleging that the property is not agricultural land but a residential lot as indicated in Tax Declaration No. 10081, dated August 29, 1986, issued by the Caloocan City Assessor’s Office. Pastor also argued that the land involved, Lot1108-A-1 covered by TCT No. 137744, is only 620 square meters, too small to be considered a viable family-size farm or economic family-size farm under Republic Act (R.A.) No. 6657 or the Comprehensive Agrarian Reform Law (CARL) and P.D. No. 27.^[23][23] 

Respondents filed the Opposition^[24][24] to Pastor’s motion to dismiss, which Pastor countered through a Reply.^[25][25] On May 10, 1994, the Regional Agrarian Reform Adjudicator (RARAD) issued an Order^[26][26] denying Pastor’s motion and directing the parties to submit their respective position papers. Pastor filed a Motion for Reconsideration,^[27][27] reiterating his arguments in his motion to dismiss, and claiming that respondents are not entitled to the benefits of the agrarian reform program because they are not landless peasants. Said motion was, however, denied.^[28][28]  Thus, Pastor filed his Answer.^[29][29]

In his Answer, Pastor maintained that no tenancy relationship was established between him and herein respondents because Macario’s occupancy, as well as that of respondents, was only by mere tolerance. He also alleged that respondents’ cause of action, if there be any, is already barred by prescription, estoppel and/or laches.^[30][30]

Pastor likewise filed his Position Paper^[31][31] as directed.  He insisted that the land is not covered by R.A. No. 6657 or by P.D. No. 27 as the land is not agricultural land and no tenancy relationship existed between him and herein respondents, who occupied his land by mere tolerance.  He also reiterated that even assuming that the land is agricultural land, respondents are not entitled to the benefits of said land reform laws as they are not landless tenants to begin with and the subject land is too small to be a viable family-size farm.

Chan for his part argued in his Position Paper^[32][32] that the subject parcel of land cannot be considered as agricultural land due to the enactment in 1981 of Metro Manila Zoning Ordinance No. 81-01 classifying the lands within the Metropolitan Manila area as residential and/or commercial. Chan pointed that the said zoning ordinance preceded R.A. No. 6657, which became effective only on June 15, 1988.^[33][33]

Meanwhile, herein respondents maintained in their Position Paper^[34][34] that their predecessor-in-interest, Macario, was a bona fide agricultural tenant; hence, they are entitled to the rights of pre-emption and redemption.  And having validly exercised their right of redemption through the deposit of the redemption price with the DAR, they are allegedly now the owners of the subject land.  That they have such right of redemption is likewise due to the fact that the subject land is covered by the OLT Program, respondents added.

Up to now, the disputed portion of the subject landholding is still utilized as a rice field by the respondents.^[35][35]

The RARAD’s Ruling

On December 26, 1994, the RARAD issued a Decision^[36][36] declaring that the late Macario validly acquired the status of a bona fide and de jure tenant over the subject land due to Pastor’s implied acquiescence in allowing Macario to discharge the duties of a tenant for a considerable length of time until the latter’s death in 1993. This notwithstanding, respondents’ complaint was dismissed.  The RARAD ruled:

x x x Under the given factual milieu, there can be no question that the Plaintiffs’ predecessor-in-interest[,] the late Macario Susano[,] validly acquired the status of a bona fide and de jure tenant over the subject landholding by reason of Defendant Pastor Samson’s implied acquiescence over the years from the time he discharged the duties of such tenant until his demise in 1993. Estoppel by acquiescence has definitely set in and Petitioner can no longer impugn at this late stage the validity of the said decedent’s acquired tenancy status which is entitled to full judicial protection under the well-recognized principle of security of tenure guaranteed under existing agrarian laws which were established in the light of the social justice precept of the Constitution and in the exercise of the police power of the State to promote the common weal. The expiration of the period of the contract as fixed by the parties, or the sale, alienation or transfer of legal possession of the land does not[,] of itself[,] extinguish the relationship. In the latter case, the purchaser or transferee is simply subrogated to the rights and substituted to the obligations of the agricultural lessor. x x x

x x x x

However, herein lies the quandary.

As early as 1981 with the passage of Metro Manila Zoning Ordinance [No.] 81-01, the land in question has ceased to be agricultural. Judicial notice is taken of the fact that Caloocan City where the subject landholding is located is part of Metro Manila whose updated Comprehensive Development Plan and Accompanying Zoning Ordinance 81-01 was found to be in conformity with the requirements of Presidential Decree No. 922, Letter of Instructions (sic) No. 729 and Execut[i]ve Order No. 648 as specifically set out in the Memorandum of Agreement (MOA) executed on January 11, 1981 between the Metro Manila Commission (now Metro Manila Authority) and the HSRC (Human Settlements Regulatory Commission[,] now HLURB or the Housing and Land Use Regulatory Board). In a clarifying Memorandum dated February 14, 1990, Secretary of Justice Franklin M. Drilon opined that prior to June 15, 1988 which is the date of effectivity of RA 6657 or the Comprehensive Agrarian Reform Law of 1988, the powers of the HLURB and the Department of Finance to recategorize lands for land use and taxation purposes, respectively, were exclusive. The point in this entire discourse is that at the time of Macario Susano’s death in 1993, there was no longer any tenurial relationship to speak of[,] which could devolve upon the [p]laintiffs by right of succession[,] by virtue of the land’s automatic recategorization as non-agricultural [land] in 1981. This does not mean[,] however, that any existing legal rights created prior to the said reclassification may just be automatically shunted aside. On the contrary[,] while [p]laintiffs can no longer insist on physically holding on to the land in question[,] they may still rightfully claim payment of disturbance compensation for and in behalf of the late Macario Susano, their predecessor-in-interest in an amount equivalent to five times the average of the gross harvest on (sic) their landholding during the last five preceding calendar years x x x.

x x x x

WHEREFORE, premises considered, judgment is hereby rendered:

1.      Declaring the subject property more particularly described in paragraph 2 of the Complaint as no longer agricultural by virtue of its reclassification/conversion based on the duly approved Metro Manila Zoning Ordinance 81-01;

2.      Dismissing the Complaint against the [d]efendant Julian Chan for lack of cause of action;

3.      Directing the defendant Pastor Samson to pay to the [p]laintiffs 300 cavans or its money equivalent of P90,000.00 as and by way of disturbance compensation due to the late tenant Macario Susano;

4.      Pending the payment of such disturbance compensation, maintaining the [p]laintiffs in their peaceful possession of the remaining area consisting of 7,316 square meters presently utilized as combination farmlot/homelot (sic);

5.      Upon receipt of the said disturbance compensation, directing the [p]laintiffs to:

a)      surrender peaceful possession of the 6,696 square meter portion of the subject property to the present owner Julian Chan and the homelot (sic) of 620 square meters to [d]efendant Pastor Samson’

b)      remove their dwelling house erected on the said homelot (sic) after the lapse of 45 days following finality of judgment herein;

6.      Allowing the withdrawal by [p]laintiffs of the redemption price deposited with the Office of the DAR Regional Cashier in the amount of P12,052.80;

7.      Denying all other claims for lack of basis; and

8.      Without pronouncement as to costs.

SO ORDERED.^[37][37]

Unsatisfied, all of the parties filed their respective motions for reconsideration. Pastor assailed the Regional Adjudicator’s finding that Macario was a bona fide and de jure tenant in the said landholding, as well as the order directing him to pay respondents disturbance compensation. Chan, for his part, sought reconsideration with respect to the pronouncement allowing respondents to maintain their peaceful possession of the 7,316-square meter property until they have been paid the computed disturbance compensation.

Meanwhile, respondents argued that there is no law authorizing the conversion of agricultural lands by the mere passage of a zoning ordinance. To support their contention, respondents cited the Court’s pronouncement in Co v. Intermediate Appellate Court^[38][38] to the effect that the passage of Metro Manila Zoning Ordinance No. 81-01 does not serve to convert existing agricultural lands in the covered area into residential lands or light industrial use lands nor does it have any retroactive effect as to discontinue all previously acquired rights on said lands. They also posit that the said zoning ordinance did not ipso facto convert agricultural lands into non-agricultural lands but merely provided for a guideline for future land use of affected areas.

On May 18, 1995, the Regional Adjudicator issued an Order^[39][39] modifying her decision as follows:

WHEREFORE, premises considered, the dispositive portion of the questioned decision of December 26, 1994 is PARTIALLY MODIFIED to read as follows:

1.      Declaring the subject property more particularly described in paragraph 2 of the Complaint as no longer agricultural by virtue of its reclassification/conversion based on the duly approved Metro Manila Zoning Ordinance No. 81-01;

2.      Dismissing the Complaint against the Defendant Julian Chan for lack of cause of action;

3.      Directing the Plaintiffs and all persons claiming right[s] under them to immediately vacate the 6,696 sq. m. portion of the subject property and surrender peaceful possession thereof to the present owner Julian Chan;

4.      Directing the Defendant Pastor Samson to pay to the Plaintiffs 300 cavans of palay or its money equivalent of P90,000.00 as and by way of disturbance compensation to the late tenant Macario Susano;

5.      Upon receipt of such payment for disturbance compensation, directing the Plaintiffs and all persons claiming rights under them to vacate the area utilized as homelot (sic) consisting of 620 square meters and surrender peaceful possession thereof to the Defendant Pastor Samson;

6.      Allowing the withdrawal by Plaintiffs of the redemption price deposited with the Office of the DAR Regional Cashier in the amount of P12,052.80;

7.      Denying all other claims for lack of basis; and

8.      Without pronouncement as to costs.

SO ORDERED.^[40][40]

The DARAB’s Ruling

Upon appeal, the DARAB, on November 7, 2003, reversed the ruling of the RARAD.  Anchoring its decision on this Court’s pronouncement in Co v. Intermediate Appellate Court,^[41][41] the DARAB explained that the issuance of an ordinance classifying the subject property into non-agricultural land did not have the effect of automatically converting the said land as non-agricultural land and terminating the tenancy relationship between the parties. The dispositive portion of the DARAB decision reads:

WHEREFORE, premises considered, the assailed decision and order are hereby REVERSED and SET ASIDE. A new judgment is entered:

1)      Declaring the plaintiffs-appellants to be the lawful successors and tenants over the disputed landholding containing an area of 7,316 square meters;

2)   Ordering the defendants to respect and maintain the plaintiffs-appellants in the peaceful possession and cultivation of the subject landholding;

3)   Recognizing the redemption right of [p]laintiffs-[a]ppellants in the 6,696 square-meter (sic) landholding;

4)   Ordering [d]efendant Chan to reconvey the subject property to herein [p]laintiffs-[a]ppellants by executing a deed of reconveyance upon payment of the redemption price of P468,720.00 and allowing [d]efendant Chan to withdraw the amount of P12,052.80 from the DAR Regional Cashier, Region IV representing partial payment of the said price;

5)   In the event that this decision shall have become final and executory, but [d]efendant Chan still refuses to execute the necessary document of reconveyance of the land in issue, the Register of Deeds of Caloocan City is hereby directed to register this decision in connection with the subject land covered by TCT No. 176758; afterwhich (sic) the Register of Deeds is hereby authorized to cancel TCT No. 176758 and in lieu thereof, to issue another Transfer Certificate of Title to and in the name of plaintiffs-appellants;

6)   Directing the plaintiffs-appellants to coordinate with the Regional Director, Region IV or his duly authorized representative who shall initiate steps to obtain from the Land Bank financial assistance for redemption purposes of the subject property, pursuant to Section 12, R.A. 3844, as amended; [and]

7)   Denying all claims and counterclaims for lack of merit.

No pronouncement as to cost.

SO ORDERED.^[42][42]

Aggrieved, Pastor and Chan sought reconsideration of the said decision but their motions were denied for lack of merit.^[43][43]  Thus, they filed their respective petitions for review before the CA. The said appeals were later consolidated upon Pastor and Chan’s motion.

During the pendency of the appeal, Pastor died on July 28, 2006 and was substituted by his estate represented by Rolando B. Samson.

The CA’s Ruling

On August 31, 2006, the CA dismissed the appeal. The CA reasoned:

x x x As borne by the records, Macario’s cultivation of the property as well as [Pastor’s] receipt of a portion of the produce therein lasted for a considerable length of time or more than thirty (30) years with nary a protest on the latter’s part. To our mind, although petitioner [Pastor] did not expressly give his consent to a tenancy relation with Macario, we find that [Pastor’s] acts are indicative of his implied consent to such relationship. Otherwise stated, by allowing Macario Susano to cultivate the subject landholding for a considerable length of time and by receiving a portion of the harvest therein, petitioner is deemed to have impliedly consented to a tenancy relationship with Macario. After all, it is well-settled in law that a tenancy relationship may be established either verbally or in writing, expressly or impliedly.^[44][44]

The CA also held that Pastor and Macario’s tenancy relationship was not extinguished despite the reclassification of the subject land into non-agricultural land in 1981 citing our ruling in Alarcon v. Court of Appeals.^[45][45] The CA concluded that since the subject landholding was sold to Chan who, in turn, failed to notify Macario as required by law, the latter had the right to redeem the said property in accordance with Section 12^[46][46] of R.A. No. 3844, as amended, or the Code of Agrarian Reforms of the Philippines. 

On July 27, 2007, the CA denied petitioners’ motions for reconsideration.  Hence, these consolidated petitions.

The Issues

In G.R. No. 179024, the estate of Pastor Samson argues that

The Honorable Court of Appeals gravely erred in rendering its subject Decision affirming the findings of the RARAD a quo and DARAB that a tenancy relationship existed between the late Pastor M. Samson and the late Macario Susano.^[47][47]

          Petitioner Julian Chan, on the other hand, argues in G.R. No. 179086 that

[I.]       The Honorable Court of Appeals grievously erred in recognizing the residential status of the property in question and yet upholding the tenancy relation between Pastor Samson and Macario Susano and in binding herein petitioner thereto[;]

[II.]      The Honorable Court of Appeals grievously erred in misapplying the ruling of this Honorable Court in Alarcon v. Court of Appeals[; and]

[III.]     The Honorable Court of Appeals grievously erred in finding that respondents were entitled to the right of redemption and that the same may still be exercised by respondents.^[48][48]

In sum, at the core of this case is the issue of whether respondents are entitled to the benefits of the OLT Program under P.D. No. 27.

The Court’s Ruling

Respondents contend that the sale of Lot 1108-C to Chan is null and void for being contrary to the provisions of P.D. No. 27 and because at the time of the sale, ownership over the said property was already vested in Macario by virtue of the provisions of P.D. No. 27 on the OLT program.

Chan, for his part, maintained that Macario himself had recognized the validity of the sale of Lot 1108-C to him as shown in the Kusang Loob na Pagtatalaga (Deed of Undertaking), signed by Macario and witnessed by his family members in 1991, and the Joint Motion and Manifestation filed with the MARO of Valenzuela.^[49][49]  Chan also asserts that when he bought the land from Pastor, it was already classified as residential land following the passage of Metro Manila Zoning Ordinance No. 81-01 on March 18, 1981.

Meanwhile, the estate of Pastor Samson, by way of avoidance, insists that Macario was not Pastor’s tenant, reiterating the earlier claim that Macario’s occupancy on the said land was by mere tolerance. The estate also argues that if Macario was a tenant, he should have reacted and asserted his alleged rights under agrarian laws when the land he was cultivating was significantly reduced after portions thereof were sold in 1977 and 1984.^[50][50]

We find in favor of petitioners. Applying our pronouncement in Levardo v. Yatco,^[51][51] we rule that the subject land cannot be subject to the OLT program of P.D. No. 27 for two reasons: first, the subject land is less than seven hectares; and second, respondents failed to show that Pastor owned other agricultural lands in excess of seven hectares or urban land from which he derived adequate income, as required by Letter of Instruction (LOI) No. 474.^[52][52]

Moreover, the DAR Memorandum on the “Interim Guidelines on Retention by Small Landowners” dated July 10, 1975 is explicit:

5. Tenanted rice and/or corn lands seven (7) hectares or less shall not be covered by Operation Land Transfer. The relation of the land owner and tenant-farmers in these areas shall be leasehold x x x^[53][53]

However, while the disputed landholding which had an original aggregate area of only 1.0138 hectares is not covered by the OLT program, the same may still be covered by P.D. No. 27, albeit under its Operation Land Leasehold (OLL) program. The OLL program placed landowners and tenants of agricultural land devoted to rice and corn into a leasehold relationship as of October 21, 1972.^[54][54]  But the fact that Macario, respondents’ predecessor-in-interest, was a de jure tenant must be established.

Chan maintains that the tenancy relationship between Pastor and Macario, if there was any, ceased following the reclassification of the subject land as belonging to the low intensity residential zone (I-1) as of March 18, 1981. His contention, however, lacks merit in light of our ruling in Co v. Intermediate Appellate Court,^[55][55] wherein we said that Metro Manila Zoning Ordinance No. 81-01 did not have the effect of discontinuing rights previously acquired over lands located within the reclassified zone which are neither residential nor light industrial in nature.^[56][56] The zoning ordinance is given prospective operation only.^[57][57]

So was Macario a de jure tenant in the subject landholding entitled to security of tenure?

On this score, we answer in the negative.

R.A. No. 1199,^[58][58]  otherwise known as the Agricultural Tenancy Act of the Philippines, defines a tenant as a person who, himself and with the aid available from within his immediate farm household, cultivates the land belonging to, or possessed by, another, with the latter’s consent for purposes of production, sharing the produce with the landholder under the share tenancy system, or paying the landholder a price certain or ascertainable in produce or in money or both, under a leasehold tenancy system.^[59][59]

For a tenancy relationship to exist between the parties, the following essential elements must be shown: (1) the parties are the landowner and the tenant; (2) the subject matter is agricultural land; (3) there is consent between the parties; (4) the purpose is agricultural production; (5) there is personal cultivation by the tenant; and (6) there is sharing of the harvests between the parties.^[60][60] The presence of all of these elements must be proved by substantial evidence.^[61][61]

Petitioner estate of Pastor Samson contends that the elements of consent and sharing of harvest are lacking since Macario’s occupancy and possession of the subject land was only by mere tolerance.

Respondents, however, counter that there was implied tenancy because Pastor accepted his share of the production for a considerable length of time. To prove their contention, respondents presented the affidavits executed by three farmers from adjoining landholdings, namely Santiago Pacheco,^[62][62] Apolinario Francisco,^[63][63] and Damaso Matias,^[64][64] stating that they knew Macario to be a tenant of Pastor since 1959 and that Macario religiously paid his share of the produce to Pastor.

          The estate of Pastor Samson argues that the said affidavits are insufficient to establish the existence of a tenancy relationship since the affiants failed to provide details as to what the agreed rental was.  No concrete evidence was presented by the respondents to prove their claim.^[65][65]

          We agree with said petitioner.

The question of whether a tenancy relationship exists is basically a question of fact which, as a general rule, is beyond the scope of a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended.^[66][66]  The question of whether there was an implied tenancy and sharing are basically questions of fact and the findings of the Court of Appeals and the Boards a quo are, generally, entitled to respect and nondisturbance, as long as they are supported by substantial evidence.^[67][67]  Such findings of fact may be reviewed by the Court when the conclusion is a finding grounded entirely on speculation, surmises or conjectures,^[68][68] or if the findings of fact are conclusions without citation of specific evidence on which they are based.^[69][69]

In the case at bar, while the RARAD, DARAB and the CA are unanimous in their conclusion that an implied tenancy relationship existed between Pastor Samson and Macario Susano, no specific evidence was cited to support such conclusion other than their observation that Pastor failed to protest Macario’s possession and cultivation over the subject land for more than 30 years. Contrary to what is required by law, however, no independent and concrete evidence were adduced by respondents to prove that there was indeed consent and sharing of harvests between Pastor and Macario.

It has been repeatedly held that occupancy and cultivation of an agricultural land will not ipso facto make one a de jure tenant.^[70][70]  Independent and concrete evidence is necessary to prove personal cultivation, sharing of harvest, or consent of the landowner.^[71][71] Substantial evidence necessary to establish the fact of sharing cannot be satisfied by a mere scintilla of evidence; there must be concrete evidence on record adequate to prove the element of sharing. To prove sharing of harvests, a receipt or any other credible evidence must be presented, because self-serving statements are inadequate.^[72][72] Tenancy relationship cannot be presumed;^[73][73] the elements for its existence are explicit in law and cannot be done away with by conjectures.^[74][74] Leasehold relationship is not brought about by the mere congruence of facts but, being a legal relationship, the mutual will of the parties to that relationship should be primordial.^[75][75]  For implied tenancy to arise it is necessary that all the essential requisites of tenancy must be present.^[76][76]

The affidavits executed by three of respondents’ neighbors are insufficient to establish a finding of tenancy relationship between Pastor and Macario. As correctly observed by the estate of Pastor Samson, the affiants did not provide details based on their personal knowledge as to how the crop-sharing agreement was implemented, how much was given by Macario to Pastor, when and where the payments were made, or whether they have at any instance witnessed Pastor receive his share of the harvest from Macario. Such failure is fatal to respondents’ claim particularly since the respondents have the burden of proving their affirmative allegation of tenancy.^[77][77] In fine, the conclusions of the RARAD, DARAB and the CA respecting the existence of tenancy relationship between Pastor and Macario are not supported by substantial evidence on record.

The sale of the land to Chan likewise did not violate R.A. No. 3844 or the Agricultural Tenancy Act.  Considering that respondents have failed to establish their status as de jure tenants, they have no right of pre-emption or redemption under Sections 11 and 12 of the said law.^[78][78]

WHEREFORE, the petitions for review on certiorari are GRANTED. The assailed Decision dated August 31, 2006 and Resolution dated July 27, 2007 of the Court of Appeals in CA-G.R. SP Nos. 89052 and 89443 are REVERSED and SET ASIDE. Respondents Mercedes and Norberto R. Susano’s action for maintenance of peaceful possession, docketed as DARAB Case No. IV-MM-0063-93, is DISMISSED for lack of merit. They are ordered to SURRENDER peaceful possession and occupation of Lot 1108-A-1, covered by TCT No. 137744, to the Estate of Pastor M. Samson, represented by Rolando B. Samson andLot 1108-C, covered by TCT No. 176758, to petitioner Julian C. Chan.

No pronouncement as to costs.

          SO ORDERED.

	MARTIN S. VILLARAMA, JR. Associate Justice
WE CONCUR: CONCHITA CARPIO MORALES Associate Justice Chairperson
ARTURO D. BRION Associate Justice		LUCAS P. BERSAMIN Associate Justice
MARIA LOURDES P. A. SERENO Associate Justice

A T T E S T A T I O N

 

          I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

CONCHITA CARPIO MORALES Associate Justice Chairperson, Third Division

 

C E R T I F I C A T I O N

 

          Pursuant to Section 13, Article VIII of the 1987 Constitution and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONA Chief Justice