~~~/-' ~oi

CEPT1FlEDTRUE PHOTOCOPYREPUBLIC OF THE·PHILIPPINES \ FIWMTHERSC01i.D5>

SANDIGANBA YANQuezon City

PEOPLE OF THE PHILIPPINES,

Plaintiff,

CRIMINAL CASE NO. 23608FOR: Violation of Section 3(e) of

Republic Act No. 3019

BENJAMIN A. FUENTES,ELVIRA D. TAN,ANTONIO G. CABALLERO,MARIO R. FERRAREN,RODOLFO FUENTES,JULIUS SEPULVEDA,TARYN M. MECAROSERNESTO T. REBUTAZO,SILVERIA T. RUPINTA II,CYNTHIA G. FERRAREN,IRENEO A. ANISLAG,ALEX M. BADONG,DOMINADOR Y. GALICINAO,NEREO C. NUNEZ andBENJAMIN ABUEG,

SANDOVAL, J., ChairmanDIAZ-BALDOS, J.,MARTIRES, J.,

~~~/-' ~Oix- - - - - - - - - - - - _.- - - - - - - - - - - - - - - - - - - - ~ I

DECISION

The acquisition of a coconut land in Bagakay, Ozamiz City to be

used as a public cemetery, which was allegedly overpriced and

attended by violations of Section 3 (e) of R.A. No. 3019, otherwise

known as the Anti-Graft and Corrupt Practices Act, engendered this

case filed against fourteen public officials of the City of Ozamiz and a

private person. The names of these accused persons are mentioned in. 1tIJi:

J/ ~

/de cis ion/criminal case no. 23608/people vs. benjaminfilentes, et al.

the Amended Information 1 admitted on May 15, 1997, which reads as

follows:

"That during the period of March 1994 to 1996 orsometime prior or subsequent thereto, in the City ofOzamiz, Philippines, and within the jurisdiction of thisHonorable Court, above-named accused, Benjamin. A.Fuentes, a high ranking public officer, being the CityMayor of Ozamiz City, in connivance and conspiracy withthe following high ranking public officers, as follows: CityVice-Mayor Elvira Tan; former Vice-Mayor AntonioCaballero; City Councilors Mario Ferraren, FelominoRomero, Rodolfo Fuentes, Bernardo Roo, Julius Supelveda,Pacifico Go and Taryn Mecaros; former City CouncilorsErnesto T. Rebutazo and Silveria T. Rupinta 1/; CityAccountant Cynthia Ferraren, City Budget Officer IreneoAnislag; City Assessor Alex Badong; City EngineerDominador Y. Galicinao, Assistant City Treasurer VictorianoB. Abela and former Register of Deeds Nereo C. Nunez,both low ranking officials, and private respondents spousesBenjamin Abueg and Estela Verano, the said publicofficers, all while in the performance of their officialfunctions, taking advantage of their positions andcommitting the offense in relation to their respectiveoffices, with' evident bad faith and manifest partialityand/or gross inexcusable negligence, did then and therewilfully, unlawfully and criminally caused (sic) theacquisition of Lot No. 3394 as public cemetery, in causingto pass Resolution No. 94-007 which recommended thevalue ranges from PSO.OOto P60.00 per square meter byaccused spouses Benjamin Abueg and Estela Verano,which amount is overpriced taking "into account the priceof the adjacent lots, and in passing resolutions authorizingaccused Benjamin A. Fuentes to enter contract with saidaccused spouses, and appropriating the amount of 2.4million chargeable to the S% Budgetary Reserve which isearmarked for unforeseen expenditures arising out ofcalamities, then effecting the payment thereof althoughthe accused spouses have not complied with thecondition stated in the Deed of Absolute Sale that theyshall be responsible for the establishment and delineationof the road right of way, and in issuing Transfer'Certificateof Title No. T-20124 in the name of the City of Ozamizwithout the accused spouses first paying the capital gainstax and the documentary stamps, and in entering into anidentical Deed of Absolute Sale with the accused spouses

~

() ~«1

/decision/criminal case no. 23608/people vs. benjamin filentes, et al.

in order that the accused spouses may evade thepayment of penalties due to late registration of the Deedof Absolute Sale, and in utilizing the acquired property notas a public cemetery but as a dumping site for thegarbage of Ozamiz City, thereby causing undue injury tothe government and giving' unwarranted benefits to theaccused.

Warrants of Arrest2 were issued on March 25, 1997 against all the

accused. On two separate dates, namely April 4 and 7, 1997, they all..

voluntarily appeared before Branch 15 of the Regional Trial Court of

Ozamiz City, except for Nereo C. Nunez who has remained at large to

this day. On the same date, the Court issued a Hold Departure Order3

against them.

On their respective dates of arraignment, namely: April 18, 19974

for Antonio Caballero; April 22, 19975 for Elvira Tan; October 24, 19976

for Bernardo Roo; December 15, 19977 for Alex Badong; August 16,

19998 for Ernesto Rebutazo, Ireneo Anislag, Silveria Rupinta II, Victoriano

Abelo, Mario Ferraren, Felomino Romero, Estela Abueg, Benjamin

Abueg, Taryn Mecaros, Julius A. Sepulveda, Cynthia G. Ferraren,

Dominador Galicinao and Benjamin Fuentes; January 11, 20009 for

Rodolfo Fuentes; and April 5, 200010. for Pacifico Co, all the

aforenamed accused pleaded Not Guilty.

Stipulation of Facts and Documentary Evidence 11

Prosecution and accused Silveria Rupinta II was

on April 24, 2000 and admitted by the Court in a

If:2 Record, pp 60-613 Record, page 574 Record, page 1065 Record, page 1466 Record. Volume 2, page 4277 Record. Volume 2, page 4768 Record. Volume 2, pp 679-6919 Record. Volume 3, page 76310 Record. Volume 3, page 79411 Record. Volume 3, page 818

/decision/criminal case no. 23608/people vs. benjamin fuentes, et al.

Resolution12dated March 22, 2007. Thedocumentary exhibits admitted

therein were the following:

1. Exhibits 1, 1-A to 1-C - Certified copy of the Minutes of the RegularSession of the City Council of Ozamiz City, held on May 12, 1994,wherein Resolution No. 112was passed.

2. Exhibits 2, 2-A to 2-C - Certified copy of the Minutes of the RegularSession of the City Council of Ozamiz City, held on June 9, 1994,wherein Resolution No. 135was passed.

3. Exhibits 3 and 3-A - Certified copy of the Minutes of the RegularSession of the City Council of Ozamiz City, held on March 17, 1994wherein Resolution No. 65, Resolution No. 66 and Resolution No. 73were passed.

4. Exhibits 4, 4-A to 4-G - Certified copy of the Minutes of the RegularSession of the City Council of Ozamiz City, held on September 1,1994wherein Resolution No. 191was passed.

Utilizingthe said Joint Stipulation, accused Rupinta filed a Motion

to Dismisswhich was, however, denied by the Court in a Resolution13

dated September 19, 2000. HerMotion for Reconsideration was likewise

denied on February 16,200114•

After the presentation of evidence by the prosecution, Benjamin

Abueg filed a Demurrer to Evidence on May 24, 200415, but the same

was denied in the Court's Resolution promulgated on February 15,

200516,

In the meantime, seven (7) of the accused, namely, Bernardo

Roa, Felomino Romero, Victoriano Abelo, Rodolfo Fuentes, Estela

Verano Abueg, Pacifico Go and Julius Sepulveda had died, as

evidenced by their respective death certificates1? presented before .~

12 Record. Volume 6, page 243613 Record. Volume 3, page 91814 Record. Volume 3, page 98015 Record. Volume 4, page 158516 Record. Volume 4, page 173917 Record. Volume 3, page790; Volume 3, page 1147; Volume 3, page 1190; Volume 4, page 1767;

Volume 5, page 2127; Volume 4, page 1794; and Volume 5, page 2232, respectively.


the Court. However, only five of them have been removed from this

case, as illustrated below:

1. The Motion to Release the Property Bond18 of Filomeno

Romero filed on April 12, 2002 on account of his death was

granted by the Court in its Resolution 19 of July 17, 2002.

2. The Motion to Release Cash Bond20 filed on July 19, 2002 and

reiterated on July 21, 2004 on account of Victoriano Abelo's

death was granted by the Court in its Resolution21 of August

12,2004.

3. The Ex-Parte Motion to Release Travel Cash Bond22 filed on

August 13, 2004 and Motion to Withdraw Cash Bail Bond23

filed on February 15, 2006, by thE3 heirs of Bernardo Roa. were

granted by the Court in the Resolution24 issued on May 31,

2005 and March 23, 2006, respectively.

4. The Motion to Dismiss25 filed by the counsel of Pacifico Go

was granted by the Court in its Resolution26 of May 22, 2006.

5. The Documentary Exhibit o"f Benjamin Abueg contained

Exhibit 2, the death Certificate of Estela Verano, a fact he

also testified to in Court when he took the witness stand,

which part of the exhibit was admitted by this Court when it

issued a Resolution admitting all the documentary exhibits of

the accused.

No resolution has been issued on the reported demise of

accused Rodolfo Fuentes and Julius Supelveda.

Upon the submission by accused Benjamin Abueg27, Cynthia

Ferraren28, Elvira Tan29, Benjamin Fuentes, Antonio Caballero, Taryn~

18 Ibid, page 1145 /' M19 Ibid, page 1186 t#20 Ibid, page 118821 Record. Volume 4, page 165922 Ibid, page 168523 Record, Volume 5, page 196124 Ibid, page 1870 and 1978, respectively25 Ibid, page 180326 Ibid, page 1986


Mecaros, Ernesto Rebutazo and Mario Ferraren30 of their respective

Memoranda, as well as Plaintiff's Memorandum,31 this case was

submitted for decision.

TESTIMONIAL EVIDENCE FOR THE PROSECUTION

1. Roy P. Calimpong,32 45 years old, married, a media

practitioner, residing in lligan City, and a member of the Sanggunian

Panlalawigan of Misamis Occidental from 1993 until March 1995,

testified that when Atty. Andres Fernandez told him about anomalies in

the acquisition by the City Government of Lot 3394, he gathered the

pertinent documents thereof, like Resolution Nos. 112 and 135; a letter

from Milagros Baluyos, Revenue District.Officer of the Bureau of Internal

Revenue of Ozamiz City, stating that the taxes against the property in

question remained outstanding; certified copies of two (2) TCT titles

from the Register of Deeds- one in the name of accused vendor Estela

Verano Abueg and another in the name of the City Government of

Ozamiz; certified copies of two (2) Deeds of Absolute Sale covering this

property, as well as a Certificate Authorizing Registration; certification

of non-payment of taxes on the property in question; a zonal valuation

for real properties amended by the BIRshowing that the amount per

square meter of the land subject of this case was P50.00; Executive

Order No. 25-95 issued by accused Benjamin Fuentes creating a

committee to conduct an investigation of the controversial purchase;

tax declaration in the name of accused Estela Verano Abueg; and

Minutes of a committee hearing chaired by accused ElviraTan held on

November 13, 1995~ /

(kf{J27 Record. Volume 5, page 225428 Ibid, page 226629 Record. Volume 6, page 2407 .30 Record. Volume 6, page 2444 ( accused from Benjamin Fuentes to Mario Ferraren in oneMemorandum), 1, Record. Volume 6, page 236032 TSN of September 25, 200 I and July 10,2002


On cross examination, the witness admitted that he had no

personal knowledge of the transaction between the Abueg spouses

and the City Government at its preparatory stage, but as a member of

the Sangguniang Panlalawigan, he could say that the resolution of the

City Council authorizing the Mayor to enter into a contract for the

acquisition of this lot was neither approved nor disapproved, and that

despite his objection to the transaction which he clearly manifested

before the Sangguniang Panlalawig"an, he did not file a formal

complaint regarding the same. He also learned prior to the

consummation of the sale that the property was being sold for P60.00

per square meter, but he deemed it premature to protest before its

actual acquisition.

On redirect examination, the witness stated that the acquisition

price was high compared to the nearby property in the same areaI

purchased by Luisito Yu for P34.00 per square meter. Since the

property appeared to be farther from the national road than that of

LuisitoYu, the price should have been lower than P60.00.

On re-cross examination, the witness admitted that the sketch

plan which he presented on redirect examination was made by an

employee whom he had no knowledge of being a licensed surveyor.

2. Atty. Andres Fernandez,33 54 years old, married, a practicing

lawyer and a resident of City Hall Drive, Bernard Subdivision, City of

Ozamiz, recalled that the project for the acquisition of land by the city" "

government of Ozamiz City was taken up as early as 1992. Although

he was initially in favor of it, he subsequently opposed the same when

he learned that the amount to be paid was exorbitant, because the

zonal valuation of lots in the area where the lot was located was only

P12 and the market value as appearing in the tax declaration was

P15, but the city government bought it for P60per square meter.

" TSN d",d O,,,mb,, 6, 2001 ~ ~

/decision/criminal case no. 23608/people vs. benjamin fi"entes, et at.

Heopposed the passage of ResolutionNo. 112appropriating the

amount of P2.4 Million for the purchase, by writing officially to the

Mayor, the Vice-Mayor, and all the members of the city council and

other department heads requesting for the immediate recall of the

said resolution on the ground that the price of the lot was exorbitant

and that it was prejudicial to the taxpayers of Ozamiz. As the minutes

of subsequent sessionswould show, he continuously opposed the

purchase of the land in question.

Thiswitness also testified that after its purchase, the lot was used

as a dumping site and not as a cemetery.

On query of the Court, he admitted having seen one copy of a

Deed of Sale, but was not sure which of the two Deeds of Sale he

saw. He also declared that the payment for the land was effected

through check, the payee of which he did not know.

On cross-examination by Atty. Moralde, the witness testified that

it was hisopposition to the passage of ResolutionNo. 112that caused

the dismissal of the case against him before the Ombudsman for

Mindanao.

When questioned by the Court on his knowledge of zonal

valuation of properties in Ozamiz City, he stated that in his capacity

as a practitioner, he has encountered deeds of sale of properties in

OzamizCity.

On cross-examination by Atty. Ferrerfor accused Tanand Go, he

admitted that despite his opposition, he did not recommend the

purchase of other lots, and further conceded that it was also possible

to pay a higher price if the lot owners refused to sell and the/

government needed the lot~ 0:,{J4[

/decision/criminal case no. 23608/people vs. benjamin jitentes, et al.

On cross-examination by Atty. Querubin for accused Badong,

the witness could not answer what year the tax declaration which he

used as basis for the charge of overpricing was issued.

When cross-examined by Atty. Gargantos, the witness explained

that he did not pursue the matter after the transaction was

consummated because he was concerned with his safety and that of

his family.

3. Engr. Romeo T. Cabrera,34 50 years old, married, a Civil

Engineer, residing at CEO Compound, Aguada, Ozamiz City, testified,

that as Engineer IV in the Office of the City Engineer in Ozamiz City, he

was in charge of the design, plans, estimates of all city infrastructure

projects, one of which is the public cemetery. A sketch map of Lot

3394-B obtained from the City Assessor'sOffice shows its distance from

the national highway to be 450 linear meters. Upon visiting it, he saw

that it was being used both as a cemetery and a garbage dumpsite.

On cross examination, the witness stated that it was his

draftsman who was also a geodetic engineer who prepared the

sketch map which he presented.

4. Atty. Libby S. Tan,35 39 years old, widow, Deputy Register. . .

of Deeds of Manila and residing at Unit II-A, Building 36, Metro Homes,

GSISCity, Pureza Street, Sta. Mesa, Metro Manila, testified that in the

issuance of a title, certain documents must be presented such as the

Deed of Absolute Sale, the owner's duplicate title, the certificate

authorizing registration reflecting the capital gains tax and

documentary stamp tax, the Certificate from the Treasurer's Office as

to the payment of transfer tax and real property tax, the Ta~

34 TSN dated September 12, 200235 TSN dated September 13, 2002

/decision/criminal case no. 23608/people vs. benjamin jitentes, et al.

Declaration showing the classification of the property, and the

clearance from the Department of Agrarian Reform if the land is

agricultural.

In the transaction between the Abueg spouses and the City

Government of Ozamiz, the title under the name of Estela Verano

Abueg was never cancelled notwithstanding the issuance of another

title in the name of the City Government of Ozamiz covering the same

lot number.

In connection with this issue, she declared before the

Sangguniang Panglungsod that the title of the City Government was

void for lack of the documentary requirements and that it could be

validated only upon submission of the necessary supporting

documents.

On cross examination, the witness testified that her appearance

before the City Council to explain how the title issued in the name of

the City Government could be validated was upon invitation of

accused Elvira Tan, Pacifico Go and Silveria Rupinta II, all members of

the City Council..

She likewise stated, in reply to the Court's query, that the Abueg

spouses asked her help regarding the two titles, because they actually

sold the property to the City Government but due to the unethical

conduct of her predecessor which prejudiced them, the title was not

properly transferred.

5. Luisito S. YU,3649 years old, married, a businessman, and

residing at Bernard Subdivision, Ozamiz City, testified, among others,

that he purchased two lots adjoining Lot No. 3394-B, for P30.00 per

square meter, and that prior to the sale of Lot No. 3394-B to the Cit~

/

" rSN dated Novembec 11, 2002 $' P4


Government of Ozamiz, the same was offered to him for the price of

more than P50.00 per square meter.

On cross examination, the witness testified that because he

planned to construct a cemetery on the two lots that he purchased,

he had to purchase another lot in front of them wherein to construct a

right of way and which he purchased at P50.00 per square meter. In

both instances, it was he who paid the capital gains tax, documentary

tax, registration fee, disturbance fee and the cost of constructing the

road-right-of-way. He further admitted that a lot offered at the price

of P50.00 per square meter with a road-right-of-way would prove to be

beneficial.

Upon questions from the Court, the witness stated that prior to

the purchase of Lot No. 3394-B by the government, he already put up

signs regarding the development of his property into a memorial park.

He described that there was a road leading to the lot purchased by

the government which was not an easement but also a public road.

DOCUMENTARY EVIDENCE FOR THE PROSECUTION

The prosecution filed its Formal Offer of Evidence37 on August 2,

2003. On September 9, 2003, accused Silveria Rupinta II filed an

Opposition/Objection,38 followed by Objections and Comments filed

by other accused Alex Badong,39 Elvira Tan and Pacifico GO,40 and

Benjamin Fuentes, Antonio Caballero, Taryn Mecaros, Ireneo Anislag,

Rodolfo Fuentes, Ernesto Rebutazo, Mario Ferraren, Cynthia Ferraren

and Julius Supelveda.41 In a Resolution issued on February 12, 2004, the

Court admitted the following evidence over the opposition and

comments of the accused, to wit:. ~..

37 Record. Volume 4, page 1352 ~,t ~38 Ibid, page 1467 . r ~39 Ibid, page 147540 Ibid, page 148241 Ibid, page 1486

/decision/criminal case no. 23608/people vs. benjam infuentes, et al.

Xerox copy of Resolution No. 112 of the City Council ofOzamiz appropriating the amount of P2 million pesos forthe purchase of a lot at Brgy. Bagacay, Ozamiz Citydescribed as Lot No. 3394 area 40,000 square m. atP60.00/sq m. as recommended by City AppraisalCommittee in its Res. No. 94-007 dated April 26, 1994 tobe used as public cemetery; provided lot owner shallestablish and delineate road-right-of-way.

Xerox copy of Res. No. 135 of Ozamiz City, authorizing theCity Mayor to sign pertinent document in behalf ofOzamiz City re: acquisition of Lot No. 3394-B located atBagakay, Ozamiz City, to be used as a public cemeteryand other purpose per Res. No. 65 s. '94 and Res. No. 11s. '94.

Original copy of letter of Milagros R. Baluyos, Asst.Revenue District Officer, of Revenue District No. 100,Ozamiz City, dated July 23, 1996 addressed to Mr. RoyCalimpong, informing the latter that capital gain tax dueon the property sold by Sps. Abueg to Ozamiz City hasnot been paid.

Certified true copy of TCT. No. T-19796 over a parcel ofland - lot No. 3394-B situated in Bagakay, Ozamiz City, inthe name of Estela Verano as owner in fee simple.

Certified true copy of TCTNo. T-20124 over parcel of land- Lot No. 3394-B, situated in Bagakay, Ozamiz City in thename of City Government of Ozamiz City, Philippines asowner in fee simple.

Certified true copy of Deed of Absolute Sale datedSeptember 2, 1994 by and between Estela Verano,married to Benjamin Abueg, as Vendors and CityGovernment of Ozamiz City as Vendee, represented byBenjamin A. Fuentes, MD., City mayor, over a portion ofland - 40,000 sq. m., denominated as Lot No. 3394-B-2situated as Bagakay, Ozamiz City covered by TCT No. T-19794 in the name of the Vendor for a consideration ofP2,400,000.00

Certified true copy of Deed of Absolute Sale datedAugust 6, 1996 by and between Estela Verano, marriedto Benjamin Abueg, as Vendors, and the CityGovernment of Ozamiz City as Vendee, represented byCity Mayor Benjamin A. Fuentes over a parcel of land,Lot No. 3394-B-2 situated at Bagakay. ozam~~

fk4

/decision/criminal case no. 23608/people vs. benjamin fitentes, et al.

covered by TCT no. 19796 for a consideration ofP2,400,000.00.

"G-l" Page 2 of the Deed of Sale

IG_2" Names and signatures of the Vendors and Vendees

"G-3" & "G-4" Paragraph 6 and 7

"G-5" The date 06 August 1996

"G-6" Certified true copy of Certificate Authorizing RegistrationNo. 898499 issued at Ozamiz City on August 19, 1996 byBIR in favor of the City of Ozamiz for the registration ofreal property - a 40,000 sq. m. cocoland located asBagakay, Ozamiz with T-19796, bought from EstelaVerano.

"G-7" Certified true copy of Capital Gains Tax·Return/Application for Certificate Authorizing Registrationfiled by Estela Verano on August 6, 1996 for her land -40,000 sq. m. under T-19796 sold to the City Governmentof Ozamiz for a consideration of P2,400,000.00.

"G-8" Certified true copy of Authority to Accept Payment oftax dated· August 6, 1996 issued by BIR to Estela Verano.City Government of Ozamiz for registration of realproperty bought from Estela Verano

"G-9" Certified true copy of Certificate Authorizing Registrationdated August 6, 1996 issued by BIRto City Government ofOzamiz for registration of real property bought fromEstela Verano.

"G-10" Certified true copy of O.R. No. 4274887 dated November5, 1996 issued by City Treasurer's Office to the CityGovernment of Ozamiz for the payment of transfer tax ofP18,000.00 over real property bought for a considerationof P2,400,000.00

"H" Xerox copy of BIR Zonal Valuation for real propertieslocated in Barangay Bagakay, Ozamiz City

"I" Certified machine copy of Executive Order No. 25-95dated October 6, 1995 issued by City Mayor Benjamin A.Fuentes "creating a committee to conduct investigationregarding the controversial issues of the lot purchased bythe City Government for the purpose of the Ozamiz CityPublic Cemetery and other purposes.

"J" Certified true copy of the Minutes of the CommitteeHearing of the whole chaired by Hon. Elvira D. Tan, CityVice Mayor, Re: Public Cemetery site in Bagakay, OzamizCity held on November 13, 1995 at the Office of the Vice

Mayor~ f1t y

/decision/criminal case no. 23608/people vs. benjaminfitentes, et al.

Certified xerox copy of TDN 9404779-A of Estela Veranoon Lot No. 3394-B-2 located in Bagakay, Ozamiz City andregistered in her name under Title No. T-19796

Original copy of Compliance and Manifestation, which isactually the counter-affidavit of respondent Andres V.Fernandez, Jr. in Case No. OMB-MIN-96-0632, Office ofthe Ombudsman Mindanao

Sworn Statement of Andres V. Fernandez, Jr. taken byAtty. Procopio C. Lao in his law office

Certified true copy of the Order of Business RE: RegularSession dated May 12, 1994 of City Council of OzamizCity

Certified true copy of the Order of Businessof the Councilof Ozamiz City dated June 9, 1994

Certified true copy of the letter of Andres V. Fernandez,Jr. for the hon. Members of the City Council of OzamizCity dated May 20, 1994

Certified true copy of the Order of Business of the CityCouncil of Ozamiz City dated May 26, 1994

Certified true copy of the Extract from the Minutes ofRegular session of the' City Council, City of Ozamis, heldat its Session Hall on Thursday, May 26, 1994

Original copy of the Affidavit of Morpheus Agot datedDecember 18, 1996

Original copy of the Affidavit of Jesus A Dosado datedDecember 9, 1996

Original copy of the Affidavit of Joventino B. Lustre datedDecember 19, 1996

Certified true copy of the Minutes of the Regular Sessionof the City Council of Ozamiz, held at its Session hall, onThursday August 26, 1993

Certified true copy of Certification dated January30, 1997 issued by Atty. Libby S. Tan, Acting Register ofDeeds, that no copy of the Deed of sale executed by

the registeredowner EstelaVerano in favor Of?~ fk4!

/decision/criminal case no. 23608/people vs. benjamin fi/entes, et al.

Government of Ozamiz on file with the Office of theRegister of Deeds.

Certified true copy of Petition filed by Sps. Estela Veranoand Benjamin Abueg before RTC Branch XV, Ozamiz Cityfor cancellation of spurious TCT No. T-20124 issued in the.name of .the City Government of Ozamiz.

Certified true copy of the Order of RTC Branch 15,Ozamis City in Misc. no. 187 entitled the Director of Landsvs. Restituta Ababan, et al., claimants; Sps. EstelaVerano, et al. dated January 24, 1997.

Certified true copy of the Order of the RTC Branch 15,6zamis City in Misc. No. 187 entitled the Director of Landsvs. Restituta Ababan and Sps Estela Verano et. al. datedMarch 10, 1997.

Xerox copy of the letter of Arnulfo M. Maghuyop, RealEstate Broker dated February 9, 1994 addressed to theHon. Sangguniang Panglungsod, City of Ozamis re: Lotfor Sale Area: 4 hectares Bagacay, Ozamis City

Original copy of Location Plan of proposed cemetery ofOzamis City and its adjacent lots - Lot No. 3410; Lot No.3396 and the existing roads

Original Copy of the Deed of Absolute Sale datedDecember 20, 1993 QY and between Josefina HermosaVda. De Alfafara as Vendor and Luisito Yu as Vendeeover two parcels of land - Lot No. 3396 with an area of10,634 sq. m. covered by TCT No. 0-1807 in the name ofSenona Capa

Certified true copy of the Minutes of the CommitteeHearing of the whole chaired by Hon. Elvira D. Tan, CityVice Mayor, Re: Public Cemetery site in Bagakay, OzamizCity held on November 13, 1995 at the Office of the ViceMayor .

The shaded part of the sketch map Lot No. 3410 and lot

3396~ (k1J (

/decision/criminal case no, 23608/people VS, benjaminfilentes, et at.

Original Copy of the Absolute Sale of Register of RealProperty dated December 29, 1994 by and betweenCaridad H. Gatdula as Vendor and LuisitoYu as Vendeeof Lot No: 3394 part 4,794 sq. m.; covered by TCTNo. T-11561in the name of Senona Capa for a considerationof P240,OOO.OO

The printed name and signature of Caridad HermosaGatdula

TESTIMONIAL EVIDENCE FOR THE ACCUSED

1. Accused Benjamin A. Fuentes,42 70 years old, married, a

physician, and residing at 2,..20 B, Blu'mentritt Extension, Ozamis City,

testified that as then Mayor of Ozamiz City, he was tasked, per

resolution issued by the City Council, to purchase the subject lot to be

used as a public cemetery and for other purposes. The Appraisal

Committee, chaired by the City Assessor, and constituted to assess the

subject lot, recommended a price range from PSO.OO to P60.00 per

square meter.

He identified the Deed of Sale executed between the accused

Abueg spouses and the City Government of Ozamiz.

On cross examination, the witness admitted that in the resolution

of the Appraisal Committee, co-accused Alex Badongadded certain

conditions in determining the price range from PSO.OO to P60.00 per

square meter, such as the establishment of a road-right-of-way, which

the vendors, however, did not comply with. Alex Badong had no

_:p_ao_r~_i:_~_~_~_tl_'o_n_in_th_e_,_D_e_e_d0, f Sale between him and accused Abue~ (;t~142 TSN dated April 19, 200S g: " fuw1

/decision/criminal case no. 23608/people vs. benjaminjilentes, et at.

2. Alex M. Badorig,43 56 years old, married, City Assessor of

Ozamiz City and residing at Maningcol, Ozamis City, testified that as a

member of the City Appraisal Committee which was created through

an executive order from the Office of the President, he had the duty to

appraise real property which the city government would decide to

buy through negotiated sale.

In appraising the subject property and recommending a

reasonable price for it, as requested by OIC Mario Ferraren, he

gathered information from the Register of Deeds and secured

available data including the tax declaration of the said property. He

likewise met with other lot owners within the vicinity, like Sagario

Olympia who negotiated the sale of his property to Liberty

Broadcasting Corporation for the price of P975.00 per square meter.

The Appraisal Committee deemed the lot suitable for the

purpose because there were already cemeteries within the vicinity-

the Chinese cemetery and the one being developed by Luisito Yu,

and appraised the property from P50.00 to P60.00 per square meter,

with the provision that the road right of way should be properly

established and delineated by the owner. The Committee forwarded

a copy of its resolution to the .Office of the Mayor and the

Sangguniang Panglungsod. As Chairman of the Committee, he was

never summoned to appear before the Sangguniang Panglungsod.

At present, the subject property is still under the name of Estela Verano.

The function of determining the utilization of the subject property

does not lie with the Appraisal Committee but with the City Council.

On cross examination by Atty. Gargantos, the witness stated that

as appearing on the notation in its tax declaration, the SUbj~9~

W Pal

/decision/criminal case no. 23608/people vs. benjamin fuentes, et at.

property in the name of Estela Verano is a public cemetery. When

shown the Certificate Authorizing Registration and a receipt issued to

the City Government for the payment of transfer tax on account of the

acquisition of the lot in question, he said that he was unaware of those

documents.

On cross examination by the prosecution, the witness reiterated

that after the submission of the resolution regarding the value of the

subject property, he was never summoned by the city mayor or

members of the City Council to further explain their resolution.

3. Accused Cynthia G. Ferraren,44 50 years old, married, City

Accountant and residing at No. 4 Trocio Apartment, Bernard

Subdivision, Ozamiz City, explained that the Accounting Division

checks if there are adequate funds or budgetary allotments available

and if the computations therein are correct, and if cash advances are

liquidated. On the other hand, the Pre-Audit Division checks if the

expenditure is properly certified by the concerned officials and if the

necessary supporting documents are in order.

Regarding the purchases of land by the City Government of

Ozamiz, the requesting office prepares the Request for Obligation and

Allotment which includes the name of the paying agency, the name

of the payee, the particulars of the claim to be paid and the amount.

The ROA then goes to the Budget Office for signature if there is a

budgetary allocation, then goes to the Treasurer's Office for another ..

signature if after verification there is cash available for the said

transaction. Only then does it arrive in her office, for verification

through different fund controllers if there really is budgetary allotment

for the said transaction. It then goes back to the requesting office for

the preparation of the disbursement voucher ~

~

/decision/criminal case no. 23608/people vs. benjamin fiJentes, et al.

The disbursement voucher, which contains the name of the

paying agency, the name of the payee, the particulars of the

transaction as well as the amount thereof, goes back to the

Accountant's Office, specifically to the fund controllers, for verification

if the said budget allotment is still available. These fund controllers affix

their initials thereon, after which the disbursement voucher is forwarded

to the Division Chief of the Accounting Division to check the propriety

of the account posting, the computations and the supporting

documents.

The Accounting Division Chief then forwards the disbursement

voucher to the Pre-Audit Division for verification if the expenditure is

properly certified by the different officials concerned and if the

required supporting documents are attached to it. After they both affix

their signature on the document, it is then forwarded to her where she

signs the same if she finds all the entries and supporting documents to

be in order. Should anything be found questionable, the document is

returned to the requesting office.

Thereafter, the document is forwarded to the City Mayor's Office

which will approve the documents and then forward them to the

Treasurer's Office for the preparation of the check. The check goes to

the Mayor's office for signature and returns to the Treasurer's Office for·

the release to the payee named therein.

The witness further testified that in the case of the acquisition of

the subject lot, the ROA and the Disbursement Voucher passed

through all the required procedure as stated before the check was

finally issued. For her part, she signed the voucher after the same had

already been checked and signed by a fund controller and the two

Division Chiefs~

~


On cross examination, the witne.ss declared that before affixing

her signature, she consulted the Budget Officer and the City Auditor's

Office because the payment would be charged against the 5%

budgetary reserve intended for unforeseen expenditures like

calamities. She was informed by both that there was legal basis for

such action.

4. Benjamin S. Abueg,45 64 years old, a widower, a fish vendor

and residing at No. 120 Mabini Extension, San Isidro, Misamis City,

testified that he and his deceased wife, accused Estela Verano

Abueg, appointed Arnulfo Maghuyop as attorney-in-fact by virtue of

an Authority to Negotiate and a Special Power of Attorney signed by

them.

He admitted executing a second Deed of Sale in favor of the

government of Ozamiz City upon the advice of his lawyer in order to

correct certain defects in the first Deed of Sale, specifically the non-

payment of capital gains tax, documentary stamp tax, survey fee and

disturbance fee for the tenants. The second deed of sale was

executed after he paid all the necessary taxes. As a result, a new TCT

was issued in favor of the government of Ozamiz.

When confronted by the prosecution on cross examination

about that portion of the Authority to Negotiate stating that the selling

price of the property was P1.5 Million, he clarified that the P1.5 Million

would have been the money due them less the commission of the

broker and less all other taxes to be paid, but the broker failed to

discharge his end of the bargain.

45 TSN dated September I, 200546 TSN dated March 16, 2006 and March 17, 2006

5. Accused Elvira D. 1an,46 59 years old, married, a

businesswoman and residing in Aguado, Ozamiz City, testified that she

1fJ4


was a member of the City Council from 1992-1995,and the Vice-

Mayor of the city from 1995to 2001. Due to the clamor of the people

in 1992 for a place where to bury their dead, the City Council

published an advertisement in the local newspaper for offers to sell to

the city government of Ozamiz real property about 46 hectares.

Broker Arnulfo Maghuyop answered that advertisement, but the

property he was offering for salewas sold to LuisitoYu.

Thereafter, Arnulfo Maghuyop made another offer. The

Committee on Housing and City Planning,which was tasked to inspect

the property, recommended in its report that the lot was suitable for a

cemetery. Thus,the City Council passed a resolution authorizing the

Mayor to convene the Appraisal Committee. OIC Mario Ferraren

convened the same.

The City Council then referred the recommendation to the

Committee on Finance which in turn recommended to the City

Council through Resolution No. 112 that the reasonable price for the

property which was suitable for a cemetery would be P60.00.

During the discussionon where the money should be taken, the

suggestion to take it from the 5% budgetary reserve was met with

different reactions. Accused Budget Officer Ireneo Anislag advised

that they could pass a resolution as early as September 1994 for the

appropriation of the amount to be earmarked, subject to the

condition that the funds would be used in December because that

amount was actually appropriated for calamities. The Supplemental

Budget to include the amount of P2.4 Million passed by the City

Council was approved by the Provincial Board, whose members

included complainant RoyCalimpong ..

When the problem arose with the tenants who wanted to

continuously harvest the fruits as they were not paid their share, the~

( fJ4


witness accused, as Vice-Mayor at that time, summoned the City

Treasurer, the City Assessor and the OIC Register of Deeds, Atty. Libby

S. Tan, and it was only then that they were informed of the two titles

covering the same property and the non-cancellation of the old title

because the new title in favor of the' City Government of Ozamiz

lacked the necessary supporting docLJments.

On cross examination, the witness stated that the appropriation

of P2.4 Million was fair because it was appraised by a Committee

especially convened for that purpose. She denied having received or

even being offered any amount of money in connection with this

tro nsaction.

On redirect examination, the witness testified that the location of

the lot purchased was an advantage because it was in an area not

submerged in water, as in fact two other lots in the area were allowed

to be used as memorial parks. On the issue that the lot was used as

garbage dumpsite, she stated that only a small portion thereof was

used for garbage purposes, and this was allowed under Resolution No.

135 which authorized the purchase of a lot intended as a public

cemetery and also for other purposes.

The witness further declared that it was not the first time that the

budgetary reserve was used for some other purpose especially when

no calamity hit the city for that particular year. But this could only be

used by December at which time it could be ascertained that no

calamity needed the reserve.

6. Accused Silveria T. Rupinta 11,47 33 years old, single, an

incumbent City Councilor of Ozamiz City and residing at Catadman,

Ozamiz City, testified, among others that she strongly opposed the

resolution to charge the P2.4Million against the 5% budgetary reserve.. 1~'" TSN dated July 13, 2006 ( ~

/de cis ion/criminal case no. 23608/people vs. benjamin fuentes, et al.

Other than attending the session of the City Council, she had no

participation in the direct acquisition of the lot in question, as she was

not a member of the Appraisal Committee and neither was she

approached by any of the other accused for any purpose.

DOCUMENTARY EVIDENCE FOR THE ACCUSED

"Certified true copy of a letter dated April 13, 1994addressed to Alex Badong by Mario R. Ferraren, CityCouncilor/OIC of the Office of the City Mayor.

Certified true copy of Tax Declaration No. 94-04779-Ain the name of Verano, Estellacovering Cadastral lotNo. 3394-B-2 covered by Certificate of Title No. T-19796which took effectin the year 1995.

Certified true copy of Tax Declaration No. 01-07514covering Lot No. 3394-B-2covered by Certificate ofTitleNo. T-19796which took effect in the year 2001.

Certified true copy of the Tax Declaration No. 01-07515 covering Cadastral Lot No. 3394-B-14-1covered by Certificate of Title NO.T-19795which tookeffect in the year 2001

Certified true copy of a certification issued by theBureau of Internal Revenue, Office of the RevenueDistrict Officer, Revenue District # 100, Ozamis City,signed by one Milagros R. Baluyos dated December26, 1996.

Official Receipt of the" Republic of the Philippines#8958507K dated June 26, 2000 issued to Alex

Badong~~ /


Joint Affidavit of Roberta Abergas-Lago andTeodorica Abergas-Limsi dated March 31, 1997,subscribed before Jose A. Edmilao, City Prosecutor,Ozamis City.

Certified true copy of Tax Declaration No. 94-01099-Acovering Lot 3593 covered by Certificate of Title No.T-19651 which took effect in 1995 issued to SagarioOlympia.

Certified true copy of a Deed of Sale by andbetween Olympia Sagarion as vendor and LibertyBroadcasting Network, Inc. as Vendee

"Whereas, the vendor and vendee agreed to selland buy respectively, the said portion at P975.00 persquare meter, net of taxes and other related costs"

Transfer Certificate of Title No. T-21207 covering LotNo. 3593-F issued in the name of Liberty BroadcastingNetwork, Inc., 2298 Pasong Tamo Ext., Makati, MetroManila. (not marked) .

Certified true copy of Tax Declaration No. 95-01497-Rcovering Cadastral Lot No. T-21207 which took effectin 1997 issued to Liberty Broadcasting Network, Inc.

Certified true copy of the Minutes of the CityAppraisal Committee meeting held at the CityAssessor.

4th paragraph from the last which state: "The bodytherefore unanimously moved to appraise the valueat the range from P50.00 to P60.00 per square meterwith the provision however that the road right of wayshould be properly established and delineated bythe owner and considering also the developmentcost of the same.

Certified true copy of Resolution No. 94-007 of theCity Appraisal Committee, City of ozamis.~

1'F1

/decision/criminal case no. 23608/people vs. benjamin filentes, et al.

"Now therefore on Joint Motion, the Committeeresolved as it is hereby resolved to recommend thevalue ranges from P50.OOto P60.00 per square meterprovided the vendor is responsible for theestablishment and delineation of the road right ofway as drawn on the sketch and location planattached to the letter offer by the vendor fromBagacay Cadre Road leading to the proposed site"

Certified true copy of Tax Declaration No. 01-07514. covering Lot No. 3394-B covered by Certificate ofTitle No. T-19796 which took effect in 2001.

Transcript of stenographic Notes of the testimony ofLuisito Yu. (not attached)

This is Exh. "H" of plaintiff, the BIRrecommendation ofP50.OOper square meter. (not attached)

This is Exh. "s" of plaintiff which is the Deed of Saleexecuted in favor of Luisito Yu. (not attached)

"1" Resolution No. 112 of the Sangguniang Panglungsodof Ozamis City dated May 12, 1994.

"2" Resolution No. 66 of the Sangguniang Panglungsodof Ozamis City dated March 17, 1994

"3" Draft Minutes of the Regular Session of theSangguniang Panglungsod of Ozamis City datedSeptember 1, 1994.

"3-A", "3-B", "3-C", The subsequent pages of Exhibit 3."3-D", "3-E", "3-F"

and "3-G"

The ResolutionPanglungsod of1994.

~f4No. 191 of theOzamis City dated

rSangguniangSeptember 1,

/decision/criminal case no. 23608/people vs. benjamin fiientes, et al.

"5" The Supplemental Budget for the Year 1994, asprepared by City Budget Officer Ireneo Anislagpursuant to Resolution # 191 Series of 1994 for theacquisition and payment of said Lot for the publiccemetery.

"5-A" Item #3 of Exhibit 5 pertaining to said acquisitionpayment of the lot.

"6" Resolution #370-94 dated December 21, 1994 of theSanguniang Panlalawigan of Misamis Occidental,consisting of two (2) pages, approving SupplementalBudget #4 for Year 1994 of the City of Ozamis, whichincluded therein the payment of Php2.4M for theacquisition of the Lot.

"6-B" The printed name of Hon. Roy P. Calimpong,Sanggunian Member who was among those presentthat deliberated upon and approved said Resolutionon December 21, 1994.

"7" Draft Minutes of the Regular Session of the CityCouncil of Ozamis on August 14, 1995, consisting ofthree (3) pages, which included the allegedinformation of City council Member Filomeno L.Romero that the tenants of Lot #3394 owned by Mr.Abueg, sold to the City Government for thecemetery, did not vacate the area for the reasonthat they had not received their disturbancecompensation of fifty thousand pesos (Php50,000.00).

Authority to Negotiate and to Sell real estateproperty in favor of Arnulfo M. Maghuyop by EstelaVerano and Benjamin Abueg.

Death Certificate of Estela ve~ P4


Letter dated February 9, 1994 by Arnulfo M.Maghuyop addressed to the City Government ofOzamis.

Special Power of Attorney executed by Abueg infavor of Arnulfo Maghuyop.

Certified true copy of the Letter of Ozamis City OICMayor Mario R. Ferraren dated April 13, 1994addressed to Mr. Alex M. Badong, Chairman of theCity Appraisal Committee of Ozamis City.

Certified true copy of Tax DeClaration of RealProperty No. 94-04779-A in the name of Estela Veranocovering Certifcate of Title No. T-19796 and cadastralLot No. 3394-B-2 which took effect in 1995.

Certified true copy of Tax Declaration of RealProperty No. 01-07514 in the name of Estela Veranocovering Certificate of Title No. T-19796 underCadastral Lot No. 3394-B-2 which took effect on 2001.

Certified true copy of Tax Declaration of RealProperty No. 01-07515 in the name of Estela Veranocovering Certificate of Title No. T-19795 underCadastral Lot No. 3394-B-1 which took effect in 2001.

Certified true copy of Certification dated December26, 1996 by Assistant Revenue District Officer MilagrosR. Baluyos of the Revenue District No. 100 of OzamisCity stating that the zonal valuation of the lots withinthe vicinity was Php200.00 per square meter.

Official Receipt No. 8955807K dated June 26, 2000issued to Alex Badong.

Joint Affidavit of Roberta Abergas-Lago andTeodorica Abergas-Limsi. dated March 31, 1997stating that they were co-owners of Lot No. 3393-C-4located in Bagacay, Ozamis City, adjacent to thesubject Lot No. 3394-B-2 of Estela Verano purchasedby the City Government of Ozamis and that in 1994,the selling price of their lot was Php70.00 per squaremeter .

. Certified true copy of Tax Declaration of RealProperty No. 94-01099-A in the name of ~mPi~

f f14


Sagario covering Cadastral Lot No. 3593 underCertificate ofTitle No. T-19651 effective 1995.

Certified true copy of Deed of Sale dated September27, 1995 by and between Olympia Sagario andLiberty Broadcasting Network, Inc. whereby Mrs.Sagario sold to Liberty a piece of land covered by theabove-said Tax Declaration at a selling price ofPhp975.00 per square meter

Transfer Certificate of Title No. T-21207 in the name ofLiberty Broadcasting Corporation covering a portionof Lot No. 3593 with an area of 800 square meters

Certified Xerox copy of Tax Declaration of RealProperty No. 95-01497-B in the name of LibertyBroadcasting Network, Inc. under Certificate of TitleNo. T-21207 covering c:i portion of Cadastral Lot No.3593.

Certified true copy of Minutes of the City AppraisalCommittee Meeting held at the Office of the CityAssessor on the 26th of April 1994 unanimouslyappraising the value of, among others, Lot No. 3394situated at Bagacay, Ozamis City with an area of40,000.00 square meters owned by Estela Veranounder Transfer Certificate No. 11560 at range fromPhp50.00 to Php60.00 per square meter

Certified true copy of Resolution No. 94-007 of the CityAppraisal Committee resolving to recommend theprice of the subject piece of real estate at a rangefrom P50.00 to P60.00 per square meter

Declaration of Real Property No. 01-07514 coveringcadastral Lot No. 3394-B stating that the property wasutilized as public cemetery

Certified true copy of Request for Obligation ofAllotment No. 101-998-09-295-9 dated 13th ofSeptember 1994 signed by appropriate officials of theCity Government of Ozamis.

Original Copy of Disbursement Voucher No. 94-09-7056stating that (a) the Paying Agency is the CityGovernment of Ozamis; (b) the Claimant is EstelaVerano Abueg - Lot Owner; (3) the Particulars ofPayment are to payment of 40,000 square meters Lotat P60.00 per Square meter for the City of OzamisPublic Cemetery situated at Barangay Bagacay,Ozamis City as per supporting documents thereto-

attached as fOIlOWS~ ~ (


1) Deed of Sale;2) SPResolution Nos. 112 and 135;3) Owner's Title No. T-19796;4) Owner's Duplicate Title No. T-20124 in the name ofthe City of Ozamis;5) Blue Print of Subdivision Plan;6) Delineation road map as desired in SP ResolutionNo.112;7) Owner's Original Duplicate Copy in the name ofOzamis City; and8) SPResolution No. 191

The Signature of Cynthia G. Ferraren as City Accountantin Box B of the said voucher; and

The Initials (signatures) of the Division Chiefs of the Officeof the City Accountant below the signature of accusedCynthia G. Ferraren in Box B of the said voucher

Certified true copy of the Deed of Absolute Sale datedSeptember 2, 1994 by and between Estela Veranomarried to Benjamin Abueg as Vendor and the CityGovernment of Ozamis as Vendee

Certified true copy of Resolution No. 112 of the CityCouncil of Ozamiz approved on June 3, 1994 entitled "ARESOLUTION APPROPRIATING THE AMOUNT OF TWOMILLION FOUR HUNDRED THOUSAND (Php2, 400,000.00)PESOS FOR THE PURCHASE OF A LOT AT BARANGAYBAGACAY, THIS CITY MORE PARTICULARLY DESCRIBED ASLOT NO. 3394 WITH AN AREA OF 40,000 SQUARE METERSAT THE PRICE OF P60.00 PER SQUARE METER ASRECOMMENDED BY THE CITY APPRAISAL COMMITTEE INITS RESOLUTION NO. 94-007 DATED APRIL 26, 1994 FORTHE PURPOSE OF ESTABLISHING A PUBLIC CEMETERYTHEREAT: PROVIDED THAT THE LOT OWNER SHALL BERESPONSIBLE IN THE ESTABLISHMENT AND DELINEATIONOF THE ROAD-R/GHT-OF-WAY, FUNDS TO BE TAKEN FROMANY AVAILABLE FUND IN THE CITY TREASURY."

Certified true copy of Resolution No. 135 of the CityCouncil of Ozamis approved on June 10 1994 entitled "ARESOLUTION AUTHORIZING THE HONORABLE CITY MAYOR,THIS CITY, TO SIGN PERTINENT DOCUMENTS IN BEHALF OFTHE CITY OF OZAMIS RELATIVE TO THE ACQUISITION OFLOT NO. 3394 SITUATED AT BARANGAY BAGAKAY, WHICHTHE CITY INTENDS TO USE FOR THE PROPOSED PUBLICCEMETERY AND/OR OTHER PURPOSES PER RESOLUTIONNO. 65 (ADOPTED MARCH 17, 1994 AND APPROVEDMARCH 30, 1994) AND RESOLUTION NO. 112 (ADOPTEDMAY 12, 1994 AND APPROVED ON JUNE 3, 1994), IN THE

EXIGENCY OF PUBLIC SERVICE.~ fJ4.1


A certified true copy of Transfer Certificate of Title No. T-19796 in the name of Estela Verano covering a parcel ofland identified as Lot 3394-B with an area of 40,000square meters

Certified true copy of Transfer Certificate of Title No. T-20124 in the name of the City Government of Ozamisover Lot No. 3394-B with an area of 40,000 square meters

Sketch Map of the Geodetic Engineer Showing the threedelineated proposed cemetery road. With SITEDEVELOPMENTPLAN of the Public Cemetery

Certified true copy of Resolution No. 191 approvedSeptember 5, 1994 entitled "A RESOLUITION AUTHORIZINGTO CHARGE TO THE 5% BUDGETARY RESERVE THE AMOUNTOF TWO MILLION FOUR HUNDRED THOUSAND PESOS(P2AOO,OOO.OO) FOR THE PAYMENT OF THE LOT LOCATEDAT BARANGAY BAGACAY FOR THE ESTABLISHMENT OF APUBLIC CEMETERY THEREAT AND FOR OTHER PURPOSES."

Original copy of the REQUIREMENTSFOR THEISSUANCEOFTITLEFROM THE REGISTEROF DEEDS OFFICE issued byActing Register of Deeds Libby S.Tan

Certified true copy of the Letter of the City Auditor datedFebruary 18, 1997 addressed to then City MayorBenjamin A. Fuentes, M.D. stating that the price paid for··the 40,000 square meter lot to be reasonable

Certified true copy of the Appointment of Cynthia G.Ferraren as City Accountant of Ozamis dated December10,1993.

The prosecution filed separate Comments to the Formal Offer of

Evidence of Alex Badong on May 26, 200648; to that of Cynthia Ferraren

on August 3, 200649; to that of Elvira Tan on August 8, 2006 and to that

of Benjamin Abueg on August 10, 200650

admitted the exhibits offered by the accused, except EXhibit

j14fO~£.01

48 Record. Volume 5, page 1991 n49 Ibid, page 21 1850 Ibid, page 213 9 and page 214151 Ibid, page 2230


Alex Badong which was withdrawn. By virtue of a Resolution52 issued

by the Court on April 11, 2007, the motion of Benjamin Fuentes, Antonio

Caballero, Taryn Mecaros, Ernesto Rebutazo, and Mario Ferraren to

adopt the documentary exhibits offered by accused Cynthia Ferraren

was granted.

The facts and the evidence depict that the City of Ozamiz had

long been in need of a public cemetery. Thus, when Arnulfo

Maghuyop, armed with a Special Power of Attorney from Spouses

Benjamin Abueg and Estela Verano Abueg who owned a lot at

Bagakay, Ozamiz (Exhibit "4-Abueg"), offered for sale to the City

Government of Ozamiz a four-hectare. agricultural land identified as

Lot 3394-B situated at Bagakay, Ozamis City and owned by the Abueg

Spouses, the City Government, acting through the City Councilor

Sangguniang Panglungsod,53 favorably considered and accepted the

offer, and passed Resolution No. 65 on March 17, 1994 for the purpose.

On the same date, the City Council likewise passed Resolution

No. 66 (Exhibit "2-Tan") requesting the City Mayor to convene the City

Appraisal Committee in order to determine the fair market value of Lot

3394-B. The offer of Maghuyop, contained in a letter dated February

9, 1994 (Exhibit "3-Abueg"), spelled out the selling price at P50.00 per

square meter, net to the landowner, and P60.00, if subject to all

clearances to effect the transfer of title to the vendee.

The Appraisal Committee, composed of accused City Assessor

Alex Badong as Chairman, accused City Engineer Dominador

Galicinao, and accused City Treasurer Victoriano Ab~lo, submitted to

the City Council Resolution No. 94-007 (Exhibit 10-Badong) on April 26~

52 Record. Volume 6, page 2486 ~/ f453 Composed of Vice-Mayor Antonio Caballero and Councilors Silveria Rupinta II, Jullius Sepulved .Elvira Tan, Pacifico Go, Taryn Mecaros, Mario Ferraren Rodolfo Fuentes and Emesto Rebutazo


1994, recommending the price of the 4-hectare Bagakay property at

P50.00 to P60.00 per square meter.

On May 12, 1994, the City Council of Ozamiz passed Resolution

No. 112 (Exhibit "A If) ,54 appropriating the amount of P2.4 Million for the

purchase of Lot 3394-B containing an area of 40,000 square meters, at

P60.00 per square meter, as recommended by the Appraisal

Committee, for use as public cemetery. It was also provided therein

that the lot owner shall be responsible for the establishment and

delineation of the road right-of-way, the funds therefor to be taken

from any available fund in the City Treasury. This resolution was

approved on June 3, 1994 by accused Mayor Fuentes and Vice-Mayor

Caballero.

A week later, or on June 10, 1994, Mayor Fuentes and City

Council Presiding Officer Antonio Caballero approved Resolution No.

135 (Exhibit "B") 55 which the City Council adopted on June 9, 1994,

authorizing the City Mayor of Ozamiz to sign pertinent documents on

behalf of the City relative to the acquisition of Lot No. 3394 which the

City intended to use as proposed public cemetery and for other

purposes.

In the meantime, the funding for the purchase of the subject

property was tackled by the City Council,· and upon consultation with

City Budget Officer Ireneo Anislag, ResOlution No. 19156 was passed by

the City Council on September 5, 1994, authorizing the P2.4 Million to

be taken from the 5% Budgetary Reserve of the city, to be done in

~~

54 Participated in by City Vice-Mayor Antonio Caballero as Presiding Officer, and Filimeno Romero, I'Aniceto Ortega, Rodolfo Fuentes, Bernardo Roa, Julius Sepulveda, Pacifico Co and Silveria Rupinta II55 Participated in by City Vice-Mayor Antonio Caballero as Presiding Officer, and Filimeno Romero,Aniceto Ortega, Rodolfo Fuentes, Bernardo Roa, Julius Sepulveda, Pacifico Co and Silveria Rupinta IIMario Ferraren and Elvira Tan.

56participated in by Councilors Mario Ferraren, Elvira Tan, Filomeo Romero, Aniceto Ortega andRodolfo Fuentes

/decision/criminal case no. 23608/people vs. benjamin fuentes; et al.

December 1994 when such fund, reserved for calamities, would be

available.

Subsequently, the procedure for the payment of the purchase

price went underway with the execution of the Request for Obligation

and Allotment which was signed by accused City Budget Officer

Ireneo Anislag and accused City Accountant Cynthia Ferraren, and

the preparation and processing of the check by accused City

TreasurerVictoria no Abelo. Estela Verano Abueg was the payee of

the check for P2.4Million.

On September 2, 1994;a Deed of Absolute Sale (Exhibit "F") was

executed between accused Estela Verano, the owner of Lot 3394

covered by TCT No. 19796, and the City Government of Ozamiz,

represented by Mayor Benjamin Fuentes, for the purchase of the

aforementioned lot at P2.4 Million. It provided the condition that the

vendor shall be responsible for the establishment and delineation of

the road right of way. Thiswas presented for registration at the Register

of Deeds where accused Nereo Nunez issued TCTNo. T-20124in the

nome of the City Government of Ozamiz..

As later events would show, the Abueg spouses, despite the

receipt of payment, failed to comply with their obligation under the

Deed of Absolute Sale to establish a road right-of-waiand to settle the

disturbance compensation of the tenants in the subject land. It was

likewise shown that TCTNo. 20124was spuriousfor having been issued

without the supporting documents necessary for a clean transfer.

An investigation on the matter ensued, with the City Council

constituting a Committee of the Whole chaired by accused ElviraTan.

Upon being summoned during such investigation, Acting Register of

Deeds, Atty. Libby Tan, confirmed that the title issued in favor of the

government was void since the necessary taxes had not yet been pai~~

1fk#

/decision/criminal case no. 23608/people vs. benjaminfuentes, et al.

and that the title in the name of vendor EstelaVerano Abueg had not

been cancelled. Milagros Baluyosof the Bureau of Internal Revenue

of Ozamiz City confirmed that the 5% capital gains tax and

documentary stamp Tax had not been paid. According to accused

City Engineer Galicinao, the road right-of-way had not been

established. No OAR clearance had also been applied over the

property.

As recommended by the Committee of the Whole, the Abueg

spousesexecuted another Deed of Absolute Sale on August 6, 1996in

favor of the City Government of Ozamiz (Exhibit "G") , containing

exactly the same provisionsas the firstDeed of Absolute Sale between

them. They likewise paid the capital gains tax, documentary stamp

tax and transfer tax resulting in the issuance to them of a Certificate

Authorizing Registration. Moreover, the Abueg spouses filed a petition

with the Regional TrialCourt of Ozamiz for the cancellation of TCTNo.

20124which was allegedly void and the issuance of another title in

favor of the City Government of Ozamiz on the basis of the second

Deed of Absolute Sale. The RTCgranted the petition in an Order

(Exhibit"P") dated March 10, 1997.

From an analytical reading of the Information, it may be

gleaned that the accused were charged of allegedly causing undue

injury to the government and giving unwarranted benefits to

themselves in the acquisition of Lot 3394-B,through the commission of

the following acts:

1. passage of Resolution No. 94-007 recommending the

purchase price of P50to P60,which isallegedly overpriced;

2. passage of resolutionsauthorizing accused Mayor Fuentesto

enter into contract with the Abueg


appropriating P2.4 Million for such purchase chargeable to

the 5%Budgetary Reserveearmarked for calamities;

3. Issuance of TCT No. 20124 in the name of the City

Government of Ozamiz without the Abueg spouses having

paid the capital gains tax, documentary stamp tax;

4. Execution of a second identical Deed of Absolute Sale in

order to evade payment of penalties due to delayed

registration of the firstDeed of Absolute Sale; and

5. Utilizingthe acquired property not as a public cemetery but

as a garbage dumpsite.

As simplified, the issuesto be addressed are the following: 1)

Whether or not the purchase of Lot 3394-B which was allegedly

overpriced and for which a second Deed of Absolute Sale had to be

executed caused undue injury to the government and granted

unwarranted benefits to the accused; and 2) Whether or not the

accused acted in conspiracy with one another in performing the acts

imputed on them.

In tackling the first issue,which is the essence of the charge of

Violation of Section 3 (e) of R.A.No. 3019, it is necessary to enumerate

the essential elements of the said offense, namely:

1. The accused is a public officer or private person charged in

conspiracy with them;

2. Said public officer commits the prohibited acts during the

performance of his official duties or in relation to his public

position;

3. He causes undue injury to any party, whether the

government or private party~


4. Such injury is caused by giving unwarranted benefits,

advantage or preference to such parties; and

5. The public officer has acted with manifest partiality, evident

bad faith or gross inexcusable negligenceY

The first two elements are deemed to be satisfied with proof

presented that with the exception of Benjamin Abueg who is a private

person who owned Lot 3394-B together with his deceased wife, Estela

Verano Abueg, all the other accused were public officers holding the

positions of Mayor, Vice-Mayor, Councilors of Ozamiz City, City

Accountant, City Budget Officer, City T~easurer,City Engineer, Register

of Deeds. Concomitantly, the alleged prohibited acts were

committed by them while in the performance of their official functions

or in relation to their official position.

In claiming that undue injury was caused to the government or

unwarranted benefits were granted to the accused themselves, the

prosecution rests its charge on the theory that TCTNo. 20124, issued in

the name of the City Government of Ozamiz by virtue of the first Deed

of Absolute Sale dated September 2, 1994, was void for failure to pay

the requisite capital gains tax, documentary stamp tax and transfer

tax, and resulted in the non-cancellation of the title in the name of

Estela Verano Abueg, the original owner of Lot 3394-B. Furthermore,

the execution of the second Deed of Absolute Sale on August 6, 1996

was allegedly aimed at avoiding the payment of surcharges or

penalties chargeable for failure to register the first Deed of Absolute

Sale promptly.

That TCTNo. 20124 issued in the name of the City Government of

Ozamiz was void is incontrovertible. Evidence abounds that the~

tf14


apparent issuance of the said title did not produce legal effect

because of the failure to pay capital gains tax, documentary stamp

tax and transfer tax. Atty. Libby Tan, who succeeded accused Nereo

Nunez as Register of Deeds, had affirmed so. While the Abueg

spouses, on whom the burden of such payments lay, may seem to be

at fault, that accusation is successfully thwarted by their assertion

contained in their petition for cancellation of TCTNo. T-20124, that they

had indeed given the corresponding payments to broker Arnulfo

Maghuyop and former Register of Deeds Nereo Nunez, but the said

payments never inured to the government coffers. l.t is significant to

note that even during the preliminary investigation by the Office of the

Ombudsman, accused Nunez never filed an answer or counter-

affidavit despite due notice.58 In the proceedings before this Court

too, it is only he among the numerous accused who has remained at

large up to the present.

It thus appears from the collated facts and evidence that it was

accused Nereo Nunez who had meddled with the documentation

and provided falsified data on the supposed registration of the Deed

of Sale, taking advantage of his position as Register of Deeds that

enabled him to tamper with the entries in the Primary Entry Book.

By his anomalous deed, accused Nereo Nunez caused the

invalid issuance of TCT No. T-20124. Unfortunately, the court is yet to

acquire jurisdiction over him. Likewise, there is no indication if a new

and valid transfer certificate of title in the name of the City

Government of Ozamiz already exists, following the payment anew by

the Abueg spouses of the capital gains tax and the transfer tax, as well

as the Order of the Regional Trial Court of Ozamiz declaring TCTNo. T-

20124 void and directing t~e issuance of another title in the city's

name. The Court' can only rely on the confidence that the City

Government ot Ozamiz would not sleep complacently in th~

,. Record, Vol. 2, page 15 Y' {iwI


protection of its. interest especially if the RTC of Ozamiz City had

already ordered the issuance of a new certificate of title in its name.

Thus,the determination of whether or not the undue injury initially

inflicted on the city government through the void TCTNo. T-20124and

attributable to accused Nunez has now been assuaged by the

issuance of a new and valid title in its name, does not stand on

unrebutted ground. In other words, it is not clear whether the city

government still continues to sustain undue injury.

In contrast to the situation of accused Nunez, a similar finding

cannot be extended to the Abueg spouses who, as the evidence

sustains, had· done their part of the transaction. As to the aborted

payment of surcharges and penalties which should have been paid for

delayed registration of the first Deed of Absolute Sale, the Court is of

the view that if ever the city was deprived of those surcharges or

penalties due to the execution of the second Deed of· Absolute Sale

instead of the delayed registration of the first deed, the same is merely

speculative and cannot be attributable to the Abueg spouses simply

because they merely followed the recommendation of the Committee

of the Whole to execute another Deed of Absolute Sale to rectify the

perceived anomaly. The Abueg spouses were in good faith in

wanting to make good their obligation to convey the property to the

city upon receiving the consideration for the sale.

Neither can the Court fault the members of the City Council

constituting the Committee· of the Whole with any wrongdoing for

making such recommendation to execute another Deed of Sale, given

the fact that the controversial sale needed to be validated at once.

Besides, it must be observed that the amount of such surcharges or

penalties lost has not been determined or quantified.

.. ~[MI (f/


Considering that the disbursement by the city government of the

amount of P2.4 Million had not really been to naught, the fact being

that a new title had been ordered to be issued to the city government,

albeit details about it unknown, the basis of imputing undue injury on

that account is nebulous. It is apt to cite apropos that the charge of

"undue injury" requires proof of actual damage or injury. Undue injury

in Sec. 3[e] cannot be presumed even after a wrong or a violation of a

right has been established. Its existence must be proven as one of the

elements of the crime. In fact, the causing of undue injury, or the

giving of any unwarranted benefits, advantage or preference through

manifest partiality, evident bad faith or gross inexcusable negligence

constitutes the very act punished under this section. Thus, it is required

that the undue injury be specified, quantified and proven to the point

of moral certainty. They cannot include speculative damages which

are too remote to be included in an accurate estimate of the loss or

injury.59

Based on the foregoing discussion, and it appearing from the

petition filed by the Abueg spouses with the Regional Trial Court of

Ozamiz City, Branch 15, that they had to pay for the second time the

capital gains tax, documentary stamp tax and transfer tax because all

of those which they had already paid at the first instance did not

reach the government coffers due to some act of the broker

Maghuyop and former Register of Deeds Nereo Nunez, the grant of

unwarranted benefits to the Abueg spouses is highly implausible. On

the contrary, they even suffered some pecuniary damage.

On the part of the members of the Committee of the Whole, or

the Appraisal Committee, or even the City Councilors who passed the

Resolutions in question, the prosecution has not presented any iota of

"Llorente .s. Sandiganbayan, G.R. No. 122166, Marcb 11, 1998 Y~fk1


evidence, and thus the Court cannot comprehend how these public

officials could have possibly given unwarranted benefits to themselves

when they recommended the execution of a second Deed of

Absolute Sale, or simply because they' passed the resolutions in

question, or recommended the price of P60.00 for the purchase of Lot

3394-B, or effected the payment of P2.4 Million for it.

As eloquently shown in the preceding discussion, if unwarranted

benefits had at all been derived, all indications point to accused

Nereo Nunez.

Element of Evident Bad Faith, Manifest Partiality or Gross InexcusableNegligence:

The Order of the Regional Trial Court of Ozamiz City, Branch 15 in

Misc No. 187 Cad Case No. 15, LRC Rec. No. 1645 instituted by the

Abueg spouses (Exhibit "N") clearly proves that anomalies were indeed

committed in the registration of the first Deed of Absolute Sale, such

that TCT No. T-20124 was declared invalid. Such irregularities as

delineated in the Order of Judge Pedro L. Suan of the said court which

ordered the cancellation of TeT No. 20124 and the registration of the

second Deed of Absolute Sale (Exhibit "0") were as follows: on the

dorsal portion of the second page of the first Deed of Absolute Sale

dated September 2, 1994 which was entered as Doc. No. 78, Page No.

17. Book No. XXI, Series of 1994 in the Notarial Register of Notary Public

Restituto G. Cudiamat were inscribed the following annotation:

"Presented on the Register of Deeds of the City ofOzamiz on September 12, 1994 at 1:30 p.m. Entry No.6657; Page No. 177; Volume No. V Primary Entry Bookunder Act 496

9-12-94 /r.

~(4l


"It is hereby certified that this document is duly registeredproper memorandum thereof having been made on TCTNo. T-19706and on the Owner's Duplicate.

"Reg. Book under T-95 File No. RT-19796City of OzamizSeptember 12, 1994

"(Sgd) NEREOC. NUNEZ

Register of Deeds"

Based on the testimony of Records Officer Adelina Chiong in the

aforesaid case, the Order further stated that the Deed of Absolute Sale

was "not found among the files in the Register of Deeds of Ozamiz City;

that Entry No. 6657 found on Page 209 (hot page 177) of Primary Entry

Book Volume No. V is an entry of a document purporting to be a deed

of donation executed by Roberto Aquino in favor of Susan Tan; that on

page 177 there is no entry bearing as Entry No. 6657. All the entries on

Page 177 from the first line in the bottom thereof are bearing Entries

Nos. 5470 to 5506 all dated from January, 1884 to January 19, 1994; and

that TCT No. T-19796 is not cancelled despite issuance of the derivative

title TCTNo. T-20124." (Emphasis supplied)

The Court adopts the foregoing findings and considers them as

indicia of evident bad faith. As often held, bad faith per se is not

enough for one to be held liable under the law, the bad faith must be

evident.60 It must have been said too many times but it is important

that emphasis be given in defining what constitutes evident bad faith.

It signifies ill motive and the conscious doing of a wrong. There is

deliberate intent on the part of the actor coupled with self-interest.

At this juncture, the Court is not predisposed to make a positive

finding of evident bad faith, or manifest partiality, or gross inexcusable

negligence, on the part of the accused members of the City counci~

'" Bayloo vs. Officeofthe Ombudsmao and Sandiganbayan, G.R. No. 142738, December 14, 200y/ ~


who participated in the enactment and passage of ResolutionsNos.

112, 135 and 191, as well as in the alleged overpricing and alleged

non-use of Lot 3394-Bas a public cemetery.

As already earlier mentioned, ResolutionsNos. 112and 135were

only in response to the long-felt need of the residents and public

officials of Ozamiz City for a public cemetery. Since they merely

fulfilled the city's need, the Court cannot concur with the imputation

that the passage of those resolutions evinced evident bad faith,

manifest partiality, or grossinexcusable negligence.

With respect to Resolution No. 135 appropriating P2.4 Million

chargeable to the 5%budgetary reserve, two things come to the fore-

the alleged overpricing and the propriety of using part of the 5%

budgetary reserve for calamities, both of which shall be discussed in

the succeeding paragraphs.

It is noteworthy that the determination of fair price for Lot 3394-B

was entrusted to the Appraisal Committee which was constituted for

that purpose. Evidence isto the effect that this committee had several

deliberations before submitting its recommendation of P50 to P60per

square meter, as embodied in ResolutionNo.94-007.

The prosecution anchors its charge of overpricing on the

testimonies of LuisitoYu who purchased property in the same area a

year before the questioned transaction, for a relatively lower price of

P30per square meter, which he also used for a cemetery, and that of

Atty. Andres Fernandez who opined that the zonal valuation of lots in

the area of Lot 3394-B was only P12and the market value as

appearing in the tax declaration was P15.

The Court finds this proof of overpricing as emaciated and not

conclusive. Notably, Atty. Fernandez, on cross-examination, could not

1~{4


say what year the tax declaration indicating a market value of P15 he

was referring to was issued. He likewise admitted, and this should be

accorded primordial emphasis in determining overpricing, that it was

possible to pay a higher price if the lot owners refused to sell and the

government needed the lot. On the other hand, Luisito Yu also

admitted that because he needed two lots for a cemetery, he had to .

purchase another lot at P50 per square meter, clearly a price not far

from the acquisition price of Lot 3394-B. Significantly too, Exhibit H, a

BIRZonal Valuation for real properties located in Bagakay, Ozamiz City,

clearly indicates the value of properties therein to be P50.00 per square

meter.

manifest partiality, or gross inexcusable negligence cannot be

ascribed to the members of the City COLJnciiwho passed Resolution

No. 135, utilizing the amount of P60 per square meter as a guide, and

eventually appropriating P2.4 Million for the acquisition of the subject

property.

As to Resolution No. 191 allowing the amount of P2.4 Million to be

charged against the 5% budgetary reserve, it appears that the same

was passed by the City Council on September 5·, 1994, following

discussions with City Budget Officer Irineo Anislag during its regular

session on September 1, 1994. While opposition to such proposal was

registered by accused Rupinta II, accused Budget Officer Anislag

assured the Council that the reserve could be used but they had to

wait until December of that year when it could be ascertained that

no calamities for which the fund was reserved would have occurred.

Accused Anislag further justified that the same procedure was being

done in other instances when funds were not yet available to meet

the city's needs. To the mind of the Court, the actuation of accused

Anislag was administrative in nature, concerning as it did the

observance of fiscal or auditing rules, and not strictly constitutive of1 JWV{ik1


evident bad faith, manifest partiality, or grossinexcusable negligence

within the context of the usage of those terms.

Thenext task of the Court isto evaluate whether all the accused,

or some of them, acted in conspiracy with one another.

It isaxiomatic that the essence of conspiracy is the combination

of two or more persons,by concerted action, to accomplish a criminal

or unlawful purpose, or some purpose not in itself criminal or unlawful,

by criminal or unlawful means. Its elements are: agreement to

accomplish an illegal objective, coupled with one or more overt acts

in furtherance of the illegal purpose; and requisite intent necessary to

commit the underlying substantive offense.61

Furthermore, even if conspiracy per se is not criminal, as it rarely

is in thisjurisdiction, the weight of factual evidence necessary to prove

conspiracy is the same as required to establish criminal liability - proof

beyond reasonable doubt. Suppositionsbased on mere presumptions

and not on solid facts do not constitute proof beyond reasonable

doubt.62

It appears from Exhibit "A" that Resolution No. 112was passed

during the regular sessionof the City Council attended by Vice-Mayor

Antonio Caballero and Councilors Filomeno Romero, Aniceto Ortega,

Rodolfo Fuentes, Bernardo Roa, Julius Sepulveda, Pacifico Co and

SilveriaRupint IIwho are all accused, except Aniceto Ortega.

On the other hand, as appearing from Exhibit "B", ResolutionNo.

135was passed likewise during the regular sessionof the City C0:?auncilP461 Estrada ys. Sandiganbayan, et aI., G.R. No. 148965, February 26, 200262 Nunez Ys. People & CA, G.R. No. 127962. April 14,2004

/decision/criminal case no. 23608/people vs. berifamin fuentes, et at.

attended by Vice-Mayor Caballero and Councilors Mario Ferraren,

Elvira Tan, Filomeno Romero, Aniceto Ortega, Rodolfo Fuentes,

Bernardo Roo, Julius Sepulveda, Pacifico Co and Silveria Rupinta II,

who are all accused, except Mario Ferraren and Aniceto Ortega.

Resolution No. 191 was passed by Mario Ferraren, Elvira Tan,

Filomeno Romero, Aniceto Ortega and Rodolfo Fuentes, again who,

except Mario Ferraren and Aniceto Ortego, are all accused.

It may be keenly observed that while these resolutions played an

interacting role in the acquisition of Lot 3394-B, the city councilors who

participated in them were not exactly the same bunch, and neither

has the prosecution shown that the actions of those city councilors

were directed at a common criminal design. On this score, their

connivance, or even the possibility thereof, is negated:

The imputation of conspiracy having been dispelled, and even

as the Court is cognizant of the fact of death of several accused, we

opt to focus on the individual acts of all the accused, whether alive or

deceased, inasmuch as they were part of one big scenario, and

likewise for the benefit of some deceased accused who have not yet

been dropped from the case.

On the part of Mayor Fuentes who approved the resolutions in

question, there is nothing in the established factual premises or in the

evidence presented that would show that his approval of the three

resolutions was geared at deriving unwarranted benefit for himself, or

even an evil desire towards it.

In the case of accused Silveria Rupinta II, evidence points to her

vehement opposition to the. utilization of the 5% budgetary reserve, but

her participation in the passage of Resolutions Nos. 112 and 135 had

somehowovershodowedthat fact and had causedher inciUSion;~ P4


charge. As earlier stated, mere participation in the passage of those

resolutions is not solid proof of conspiracy or even intent to inflict injury

to the government or grant unwarranted benefits to her.

In the case of accused Elvira Tan, Mario Ferraren, and Rodolfo

Fuentes, who were all part of the Committee of the Whole that acted

on the supposed controversies enveloping the purchase of Lot 3394-B,

it appears from the Minutes of the hearing on November 13, 1995

(Exhibit "J") that they unflinchingly probed into the alleged mess, and it

was through their recommendation that the Abueg spouses were

made to execute another Deed of Absolute Sale that paved the way

for the issuance of a valid title in the name of the city government.

The prosecution further failed to discredit the testimony of

accused City Accountant Cynthia Ferraren regarding the procedure

taken by her office in processing the supporting papers for payment,

which shows that she signed the documents after they were signed by

one fund comptroller and two Division Chiefs in the same office who,

however, were not charged with her.

The actuations of accused City Assessor Alex Badong, Engr.

Dominador Galicinao and Assistant Treasurer Victoriano Abelo who

composed the Appraisal Committee, do not likewise betray any tinge

of conspiracy in arriving at the recommended price for the property.

Moreover, the Court's rejection of the charge of overpricing overrides

any conspiracy among the members of the Appraisal Committee.

As already intimated earlier, mere participation in the passage

of the resolutions in question does not per se give rise to liability on the

part of the City Councilors that passed them. For this reason, Bernardo

Roo, Julius Sepulveda, Pacifico Co, Taryn Mecaros, and Ernesto

Rebutazo, who figured in the passage of all or some resolutions,

cannot be found liable, either singly or collectively. Suffice it to say'

1?/d1rf4


that with respect to them, the Court is predisposed to credit in their

favor good faith in the performance of their duties. In fact,

jurisprudence concedes that even mistakes committed by a public

officer in the performance of his official duties are not actionable

absent any clear showing that they were motivated by malice or gross

negligence amounting to bad faith.63

The Court finds no criminal liability against B~njamin Abueg,

considering that he and his deceased spouse, Estela Verano Abueg,

had rectified an error not of their own doing, by executing another

Deed of Absolute Sale at the behest of the Committee of the Whole,

and ultimately paying the necessary taxes and fees, thus paving the

way for the issuance of a valid title in the name of the City

Government of Ozamiz.

The situation of Register of Deeds Nereo Nunez is an altogether

different case. There is ample evidence that if ever any indication of

conspiracy existed, it was not with the" herein accused public officials,

but with broker Arnulfo Maghuyop who, however, had not been

included in the charge and who had apparently gone to the great

beyond.

In summation, the Court finds that the elements of Violation of

Section 3 (e) of R.A. No. 3019 have not been satisfactorily proved, and

the presumption of innocence in favor of the accused who stood trial

has not been successfully overturned.

WHEREFORE, in view of all the foregoing, and since their guilt has

not been proven beyond reasonable doubt, BENJAMIN FUENTES,

ELVIRA TAN, ANTONIO CABALLERO, MARIO FERRAREN, RODOLFO

FUENTES, JULIUS SEPULVEDA, TARYN MECAROS, ERNESTO REBUTAZO,

SILVERIA RUPINTA II, CYNTHIA FERRAREN, IRENEO ANISLAG, ALEX

" Saber vs. Court of Appeals, G.R. No. 132981, August 3 I, 2004 1"~ fJ.1


BADONG, DOMINADOR GALICINAO, and BENJAMIN ABUEG are hereby

ACQUITTED of Violation of Section 3(e) of R.A. No. 3019.

The bonds posted by them for their provisional liberty under O.R.

Nos. 4216131, 4216134, 4216134, 4216140,14860182,4216133,4216138,

as well as OCT No. P-322 (same property bond of Cynthia Ferraren and

Taryn Mecaros), TCT No. T-6211, TCT Nos. T-20889, T-20890, T-12323, TCT

No. T-6954, OCT No. EP(OCT)-83 and OCT No. EP(OCT)-84, are hereby

ordered returned to them, subject to the usual accounting and

auditing procedures of this Court.

The Hold Departure Orders issued against them on March 25,

1997 are hereby lifted and set aside.

~.J. 1.J~T.a;~ ~ ~tERESITA v:DIAf-BALDOS

Associate Justice

. . tuJtua,f/1MUEL R: MA~TIRES

/decision/criminal case no. 23608/p~ople vs. benjamin fuentes, et al.

J/).~ i: ~~. j}~.. jEDllBERTO G. SAt:iDO'VA(

Chairman, Second Division"

~~~ I~JEDILBERTO G. SA'NDOVAL

Acting Presiding )Usticerot*;

. r4

~~~/-' ~oi

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