Final petition for honor, glory, justice

Final petition for honor, glory, justice


I am sharing the petition I wrote as a "Final Petition for Honor, Glory, Justice" in order to pursue an advocacy to create among the Ombudsman officials, justices and judges a culture of fidelity to the rules of procedure, justice and fairness.

I am not saying that my client is innocent or not of the accusation, so that I am pushing for this case before the Supreme Court to pursue that advocacy.

At the same time, I am posting this petition I wrote as a blog in order to educate fellow lawyers, intelligent laymen, and all others who have interest in deep analysis of issues on principles of law, the law, and rules of procedure.

You may read the entire petition by taking out the names of the characters,


Republic of the Philippines
Supreme Court
Manila



YYY P. XXX, Special
Investigation III (SG18), National
Bureau of Investigation
Petitioner,


-versus-                                             G.R. No. 214905                            
(CA-G.R. No. 129490)
                                                                        (OMB-C.A- 10-0157-C)

NATIONAL BUREAU OF
INVESTIGATION,
Respondents.
x---------------------------------------x




Petition for Review
on
Certiorari



            Before proceeding to the proper petition, let these cries for justice come first, hoping it will reverberate in the August Halls of the Supreme Court, the last bastion of justice and freedom.


            Generally, the Court of Appeals decided questions of substance GOING AGAINST THE DOCTRINES OF EVIDENCE and JURISPRUDENCE.


If these questions that are material in the case at bar are left unchecked or unturned, these will become “Black Eyes” or “Black Holes” in the annals of judicial excellence that is the hallmark of the Supreme Court.


            Let some of these Black Eyes be enumerated.


            First, the Court of Appeals affirmed that UNTESTED ALLEGATIONS IN THE AFFIDAVIT OF WITNESSES CAN OVERTURN THE LOGBOOK OF THE OFFICER AT THE GATE as to all exits and entries of persons and vehicles through the gate.

           
            Second, the CA ruled that UNTESTED ALLEGATIONS IN THE AFFIDAVIT of a witness ENJOY THE PRESUMPTION OF REGULARITY AND VALIDITY AS TO THE ALLEGATIONS THEREIN.


Third, the CA affirmed the UNTESTED ALLEGATIONS IN THE AFFIDAVIT OF A WITNESS BLINDFOLDED ALL THROUGHOUT THE PERIOD OF ALLEGED KIDNAPPING when he claimed he recognized the place a few seconds after the blindfold was removed.


Fourth, the CA affirmed the UNTESTED ALLEGATIONS IN THE AFFIDAVIT OF A WITNESS who testified what did the kidnappers talk about in Tagalog WHEN THE WITNESS PROFESSED HE CANNOT SPEAK OR UNDERSTAND TAGALOG.


            Fifth, the CA affirmed as valid the IDENTIFICATION OF THE PETITIONER BY THE ALLEGED VICTIM AS THE KIDNAPPER WHEN THE IDENTIFICATION PROCEDURE WAS DONE BY PRESENTING TO THE VICTIM ONLY THE PHOTOGRAPH OF THE ALLEGED KIDNAPPER.


            More rulings were made by the CA that are contrary to jurisprudence and the rules of evidence.


            All of these will be discussed hereunder.




The Petition Proper



            The petitioner, by the undersigned counsel, respectfully files this Petition for Review on Certiorari.



The Timeliness



On 5 November 2014, the law firm received the Resolution of the Court of Appeals dated 31 October 2014 denying the Motion for Reconsideration in the Petition for Review.


A copy of the Resolution dated 31 October 2014 is attached hereto as ANNEX “A.”


The fifteenth (15th) day within which the instant Petition for Review on Certiorari can be filed falls on 5 November 2014, which is today.


Thus, the filing of this Petition for Review on Certiorari today is timely.


A copy of the Motion for Reconsideration is attached hereto as ANNEX “B.”


The same Motion for Reconsideration was filed on 15 July 2014. 


The said Motion for Reconsideration was filed fifteen (15) days after the undersigned received on 30 June 2014 the Decision of the Court of Appeals dated 17 June 2014.


An original copy of the Decision is attached hereto as ANNEX “C.”




The Parties



The petitioner in this case is YYY P. XXX, a resident of Unit 114 Phuket Bldg. Royal Palm Residence Acacia Estates, Cayetano Blvd. Ususan, Taguig.


For purposes of this petition, it is requested that notices and other processes intended for him be addressed to this law firm on the address written below.


The respondent in this case is the National Bureau of Investigation (NBI), whose address is Taft Avenue, Manila.




The Antecedents



            The antecedents are mostly constituted by statements culled from the Decision of the Court of Appeals.  


1.                 On February 25, 2010, the NBI filed a complaint against the petitioner on the basis of an investigation report of SI-V Felix O Señora, which report was the basis also of the separate report of Ex-O Joselito Amon, Legal and Evaluation Division of the NBI.


2.                 The substance of the report of Amon is stated in pages 2 to 5 of the Decision of the Court of Appeals in this case, which report is hereby quoted to wit:


Through Disposition Form dated February 8, 2010, Ex-O Joselito Amon, Legal and Evaluation Division, National Bureau of Investigation (NBI) submitted the following report to the Office of the NBI Director:

1)      P/SR. Superintendent Leonardo Arias Espina, Chief of the Police Anti-Crime and Emergency Response (PACER), requested an investigation to determine the perpetrators of the alleged kidnapping inside the compound of NBI, Taft Avenue, Manila.

2)      On March 10, 2009, around 10 am, Panayangan ZZZ was inside his parked passenger jeepney. The jeepney was undergoing repair in a motorshop in Dasmarinas, Cavite.

3)      Suddenly, two vehicles, a black Honda Accord with plate number UDT-512 and a silver Honda sedan with unknown license number, appeared. One of the vehicles parked in front of the jeepney, the other, behind.

4)      Men stepped out of the vehicles, one of them was carrying a .45 caliber pistol. They approached Panayangan and forcibly dragged him into the black Honda. Panayangan was handcuffed and blindfolded.

5)      Inside the car, Panayangan was stripped of his personal belongings, including his wallet and mobile phone. He was also beaten up. His mobile phone was used to call his wife Susan, to whom the men identified themselves as PDEA agents. They demanded from her Php1,000,000.00 for Panayangan’s safe release.

6)      This prompted Panayangan’s wife and relatives to seek the help of PNP/PACER. Negotiations took place and the demand was lowered to Php340,000.00. On the same day, around 10:30 pm, VVV Apala and WWW Padate, Panayangan’s stepmother and sister, respectively, and several PACER operatives delivered the ransom money at the agreed pay-off site on Taft Avenue, Manila. Apala and WWW were the ransom bearers.

7)      The PACER operatives noticed that the two Honda vehicles entered the NBI compound. Inside the compound, the ransom bearers handed the money to the male abductors. Thereafter, the ransom bearers and Panayangan boarded the silver Honda and they were dropped off somewhere on Padre Faura.

8)      NBI Security Officer Manolito Sevilla executed a sworn statement, attesting that at the time of the incident, he was on duty and posted at the NBI gate. Manolito recorded on the security logbook that the black Honda with license plate number UDT-512 was driven by petitioner YYY XXX. Panayangan and WWW executed a joint affidavit, identifying petitioner as the mastermind of the kidnapping.

9)      The Internal Affairs Division of the NBI subpoenaed petitioner and required him to answer the allegations against him.

10)  In his affidavit explanation, petitioner harped on the fact that the PACER did not arrest the kidnappers during the pay-off.  

He also claimed that before the kidnapping took place, specifically on January 29, 2009, he had already mortgaged his black Honda to a certain Ansari Macmud Khadali.


3.                 Based on these, Amon made conclusions and these are quoted from the Decision of the CA, found on page 5, to wit:


Records show that pieces of direct evidence point to subject SI XXX as one having direct participation in the kidnapping of Victim ZZZ as follows:


1.      The joint-affidavit of kidnap victim ZZZ and ransom bearer PADATE directly pinpointing and identifying SI XXX as the “mastermind” in the kidnapping;


2.      The joint-affidavit of the PACER operatives who escorted the ransom bearers and were present during the pay-off describing the vehicles and the place of the transaction payoff;


3.      The log-book of the NBI Security detailed in the NBI gate identifying the vehicle present during the pay-off; and


4.      The sworn statement of the NBI S.O. MANOLITO M. SEVILLA identifying the driver of the vehicle (UDT-512) used in the kidnapping pay-off as Subject SI XXX.


Subject SI XXX clearly used his authority and position to daringly commit the grave felony of kidnapping. Subject SI XXX forcibly took custody of victim ZZZ in the guise of arresting the latter, which eventually deprived victim ZZZ of his liberty without any valid reason except to demand ransom for his release.


Worse, Subject SI XXX even used this Bureau to execute and accomplish his felonious activity in order to avoid being caught by the authorities.



4.                 The Ombudsman required the submission of the position paper and the petitioner complied with it. 


5.                 In his Position Paper, some of the petitioner’s substantive arguments were cited by the CA, to wit:


1)      Copy of the Special Report furnished him by the Office of the Ombudsman had no attachments and did not refer to a police report or affidavit. There was also an irregularity in the signatories of Payangan’s affidavit and its date of execution.  There was no indication that Ex-O Amon exerted efforts to make more discoveries, a work of a lazy investigator.


2)      It was the height of unfairness for the NBI to make itself a nominal complainant without first ensuring the veracity of the affidavits and alleged evidence. He used to belong to the command of Deputy Director Ruel Lasalla, who had been a rival of NBI Director Nestor Mantaring to several positions at the Bureau. He was the collateral damage of that rivalry.


3)      Panayangan did not produce a witness attesting to the fact that he was kidnapped in front of a motor shop. Panayangan’s affidavit was falsified and he did not even provide details describing the distinct circumstances of the case. The NBI logbook showed that plate number UDT 512 referred to a black Honda Accord which went out of the NBI gate at 11:20 pm on March 10, 2009, albeit the succeeding entries until 7:19 am of March 11, 2009 did not show any car with plate number UDT 512 reentering the NBI gate. The logbook did not also show that two women were allowed entry into the NBI premises after midnight on March 10, 2009. There was also no entry about a silver Honda entering the NBI premises. The guard on duty did not see any PACER officers in the premises.


4)      The victim’s relatives already knew about the details of the kidnapping and the number of cars involved before the victim was found or his whereabouts known. It was also ridiculous that the law enforcers acted on the case without even an affidavit-complaint from the victim’s relatives. PACER had not submitted any spot report about the kidnapping, neither was the incident blottered. There was no performance of official function by the law enforcers involved. It was impossible for the pay-off to have been conducted within the NBI premises because it was a highly secured facility. They did not even arrest the kidnappers during the pay-off.


5)      The PACER officers involved in the operation, namely PCI Sumingwa and PO Aromin only executed their affidavits after an unexplained 3-month delay. His black Honda Accord was already mortgaged long before the kidnapping incident to pay off hospital bills when his common-law wife gave birth.


6.                 On 17 September 2012, the law firm received the Decision of the Office of the Ombudsman dated 23 May 2012 finding the petitioner guilty of grave misconduct and dismissed him from the service.


7.                 On Sept. 27, 2013, the petitioner filed his Motion for Reconsideration (MR) against the Decision of the Office of the Ombudsman, where the petitioner’s contentions were substantially narrated by the CA as follows:


Petitioner now faults the Office of the Ombudsman allegedly for:  a) not stating the facts and the law on which the decision was based;  b) making conclusions not supported by evidence in the resolution of his motion for reconsideration; c) ignoring his request to conduct a trial-type hearing; and d) ignoring his motions to elevate the matter to Ombudsman Conchita Carpio-Morales.


Petitioner argues: The assailed decision merely narrated the contentions of the NBI witnesses in 7 paragraphs and devoted only 1 paragraph to discuss his side. The mediocre decision made conclusions without stating the reason based on law and evidence. The NBI logbook was sufficient proof of the events that transpired.   The assailed order denying his motion for reconsideration fell short of the degree of intelligence required of a jurist. The Office of the Ombudsman erred in relying on the affidavits of NBI witnesses that giving probative weight to the logbook entries. The witnesses themselves had not been subjected to cross-examination and cannot be given probative weight. The logbook is a document that bears the presumption of regularity as the entries therein were made in the regular course of business. When his photograph was shown for identification, it was not accompanied by photos of other persons, thus, suggesting to the witnesses that he was the suspect.  The Office of the Ombudsman violated its own rules of procedure when it ignored his request for a full-blown trial with the right to crossexamine the witnesses against him.   He had asked that the case be elevated to Ombudsman Conchita Carpio-Morales herself. Instead, Overall Deputy Ombudsman Orlando Casimiro decided the case and indicated evident bias.



8.                 To these contentions, the Office of the Ombudsman issued a resolution, which was reiterated by the Office of the Solicitor General before the Court of Appeals, and these contentions of the Ombudsman were stated in its denial of the Motion for Reconsideration, and the CA narrated the same as follows:


The Office of the Solicitor General (OSG), through Assistant Solicitor General Antonia Edita Dizon and Associate Solicitor John Dale Ballinan, counters: The assailed decision clearly provided that petitioner was charged with misconduct for his participation in Panayangan’s kidnapping. There was a complete narration of the factual antecedents of the case, based on the affidavits and position papers submitted by both parties. In deciding the case, the Office of the Ombudsman gave credence to the evidence and affidavits of the NBI witnesses.  The Office of the Ombudsman’s factual findings are entitled to great weight and respect because they were supported by substantial evidence. Petitioner’s claim that his motion for reconsideration should be elevated to Ombudsman Carpio Morales herself is bereft of merit. The Ombudsman has the power to delegate to her deputies or investigators such authority or duty as shall ensure the effective exercise or performance of her powers, functions, and duties.   Petitioner’s contention that the hearing officer should have conducted a full-blown trial has no merit because the conduct of such trial is discretionary on the part of the hearing officer.


9.                 The resolution of the Office of the Ombudsman dated 28 February 2013 denying the motion for reconsideration was received by the undersigned counsel on April 2, 2013.


10.             Aggrieved by the Decision and the Resolution, the petitioner filed his Petition for Review before the Court of Appeals, substantially reiterating the points raised before the level of the Office of the Ombudsman.


11.             An original copy of the Petition for Review  filed before the CA is attached hereto as ANNEX “D” series.


12.             In the Petition for Review before the CA, the petitioner raised the following errors:


(a)        Blatant violation of the constitutional statutory requirement that Decision and Rules of Court must state clearly and distinctly the facts and the law on which they are based; this failure showed bias or ignorance of the law on the part of the Ombudsman and officials involved in the processing of this Decision that (forgive the undersigned for saying this) is a work of a mediocre to say the least;


(b)        The order disposing the Motion for Reconsideration attempted to cure the blatant and inexcusable errors in the Decision, but it committed new set of blatant errors by means of making conclusions what should be the ultimate facts when the conclusions are not supported by evidence, not founded on reasons, more of conjectures, erroneous in giving weight to the claimed presumption of regularity when there were instances where PACER operations and SI-V Señoren departed from official procedures, ignored the detailed rebuttals, ignored the high improbabilities of many claims gauged against normal habits of life, etc;


(c)         The Order disposing the MR just ignored the motions to elevate the MR to Ombudsman Conchita Carpio-Morales and the officials involved in the processing, particularly Mr. Orlando Casimiro, did not inhibit themselves; and


(d)        Despite the gravity of the accusation and punishment that demand the commensurately stricter scrutiny to discover the facts, the Ombudsman officials ignored the repeated requests to conduct a trial-type hearing, ignoring in the process the truth that affidavits can be invented and they are actually hearsay unless tested against cross-examination.



13.             In the arguments amplifying the errors cited, the petitioner argued as follows:


Generally speaking, the errors here of the Office of the Ombudsman are that it has the heart to sacrifice truth and justice and it is naive to the painful effect of its Decision and Order denying the MR.


Truth to tell, the Ombudsman is only taking the short and convenient route of relying on affidavits that are, anybody knows, highly unreliable.


Everybody knows that mere allegations and allegations are not equivalent to proofs.


Worse, the Ombudsman gave belief to every allegation in the affidavits of all the witnesses of the complainant NBI.


If this is so that it will believe anyway in all allegations in the affidavits of the witnesses when these are pure hearsay, then why the Ombudsman still required the respondent to submit his defense?


When the Ombudsman was already pre-determined to follow its line of reasoning that the allegations of the witnesses of the complainant are all truthful, what will happen to justice?


The bias in the Ombudsman officials involved in the decision-making is very clear when they ignored the motion to elevate the case to the Office of the Tanodbayan.


14.             The petitioner amplified further these arguments by discussing in seriatim the errors raised, as follows:


First Error


Briefly, this error is best demonstrated by reading the Decision. Res Ipsa Loquitor. The Decision speaks for itself.


The decision patently shows that it narrated the contentions of the witnesses of the NBI in seven paragraphs and devoted only one paragraph to the side of the respondent’s.


Thereafter, the mediocre decision made conclusions without stating the reason on law and evidence why it arrived at those conclusions.


As to logbook, Section 43 of Rule 130 is instructive.  This provision states that entries in the logbook unblemished and not tainted with falsity are sufficient proof of evidence of the faithful occurrence an eventualities to wit:


Entries made at, or near the time of the transactions to which they refer, by a person deceased, or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty.


The security guard of the National Bureau of Investigation was performing his official duties as the sentinel and in the course of his duty he recorded the exits and entries of vehicles as these exits and entries were occurring.   Then, there is no suggestion that the sentinel was prompted by ill motive to tamper with the entries he recorded.  Hence, it can be reasonably presumed that the entries there were faithful performance of his official and public duty.  Thus the records in his logbook are prima facie evidence of the incidents.


The Supreme Court said in eugenio G. palileo, ETAL. VS. NIA, G.R. No. 148574, to wit:

The entry in the log book and the certification issued by the Land Irrigation System custodian must be considered admissible and competent evidence as they form part of official recordsThis is pursuant to the rule that entries in official records made in the performance of his duty by a public officer are prima facie evidence of the facts therein stated. Having been made by public officers in the performance of their duties, the evidentiary value of such document must, therefore, be sustained in the absence of strong, complete and conclusive proof of its falsity or nullity.”


Second Error


The Order of the Ombudsman denying the MR attempted to cure the blatant violations committed by it against the constitutional requirements for all decision to be written in a manner that set forth the facts and laws, the issues and the reasons in resolving the issues.


This requirement is enjoined by the Constitution to comply with the most supreme constitutional right that no person shall be deprived of life, liberty or property without due process of law.


Now, due process has two elements: (1) notice of the impending deprivation of life, liberty or property; and (2) opportunity to be heard to explain why the person should not be deprived of life, liberty or property.


The right to appeal or to file a motion for reconsideration, if provided by law as a part of the due process, will be rendered meaningless if the person has no way of knowing how the decision was resolved: He will never know what are the specific errors to point out if after narrating the facts the decision will just jump to conclusion right away.


The Order denying the MR attempted to explain its Conclusion in the Decision.


But the explanation in the order denying the MR fell short of the degree of intelligence required of a jurist.


The Order denying the MR indeed attempted to justify the conclusions in the decision but it did not explain why the reasons it used should be logical.


For instance, the MR pointed out that the logbook of the gate of the NBI does not show an entry that the car with license plate no. UDT-512 did entered the NBI compound after it exited at 11:30 pm of March 10, 2009 so that the witness of the NBI were lying when they alleged in their untested affidavits that the same car entered the NBI compound after it exited.  On this point raised in the MR, the Order believed in what it said as “categorical and positive declarations of the witnesses that the vehicle (UDT-512) entered the NBI compound before the ransom bearers went inside the NBI Compound prevails over the absence of any record in the logbook as to entry or re-entry of the vehicle (UDT-512).


Why is it that the “categorical and positive declarations” not tested under cross-examinations would prevail over the logbook?  The Ombudsman did not explain.


In the three classes of evidence, documents are called “best evidence” that when an entry or a statement of fact entered therein is in issue, that document is the best evidence.


Testimonies, particularly those allegations in the affidavits, must be defeated if they go against the statement of fact entered in a document.


Logbook is a document that has the presumption of regularity as they are entries made in the regular course of business where the officer making entries did not have any interest in any data entered therein and that there are no spaces in between entries.


Moreover, the security guard on duty was an employee of the NBI and it was his official duty, to log the vehicles coming in and out of the NBI compound.  So that the security guard was performing his official functions.  And when there were no spaces in between entries and there are no irregularities noted, then the presumption of regularity in the performance of the official function must attach to the logbook and to the declaration of the security guard concerned.


Without any evidence to rebut the weight of the prima facie presumption of the logbook, those entries in the logbook were conveniently rejected by the Decision in favor of the “categorical statements” in the affidavits that were not even tested against cross-examination.


The fact that dismissal from the service partakes of the character of imprisonment for life, the said decision must have conscience to check the veracity of the allegations in the affidavits. That checking can be done by cross-examination, which the Ombudsman dispensed with.


The same lamentation is true with the claimed silver Honda with license plate no. CTP-111.


There is nothing in the logbook that says about this car. The witnesses said that this car went out of the NBI compound to drop off the ransom bearers and the victim at Padre Faura St. corner Taft Avenue, after the same car entered the compound at 12:30 midnight of the same date.  These claims are not written in the said logbook.  Again, the Ombudsman believed in the allegations that were not tested.


In another instance, the MR pointed out that the extrajudicial identification of the respondent was incorrect.  It was done by the NBI operative assigned to handle the case by just showing only the photographs of the respondent to the “witnesses.” 


There were no photographs of other NBI agents put aside the photographs of the respondent.   It therefore violated the jurisprudence requiring the lining up the picture of the suspect along with the pictures of other persons for this kind of identification to be valid.  But the decision called it as a substantial evidence of identification. Illogical.


The Supreme Court in People v. Teehankee, [G.R. Nos. 111206-08, 6 October 1995] laid down the guidelines to determine the admissibility and reliability of an out-of-court identification, declaring:

In resolving the admissibility of and relying on out-of-court identification of suspects, courts have adopted the totality of circumstances test where they consider the following factors, viz: (1) the witness’ opportunity to view the criminal at the time of the crime; (2) the witness’ degree of attention at the time; (3) the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the length of time between the crime and the identification; and (6) the suggestiveness of the identification procedure.


In the instant case, it is a shame for the Ombudsman to not detect the “suggestiveness” of the identification procedure that was done by the complainant NBI.


The act of showing the alleged witnesses two pictures, all of which were the ID photographs of the respondent in the files of the NBI, without showing picture of other NBI agents to the alleged witnesses is no less than a high degree of “suggestiveness.”


In People vs Pineda, G.R. No. 141644, May 27, 2004, in acquitting accused Pineda and Sison by reason of inadmissible photograph identification, the Supreme Court said:

Although showing mug shots of suspects is one of the established methods of identifying criminals, the procedure used in this case is unacceptable. The first rule in proper photographic identification procedure is that a series of photographs must be shown, and not merely that of the suspect. The second rule directs that when a witness is shown a group of pictures, their arrangement and display should in no way suggest which one of the pictures pertains to the suspect.


Hence, if only the pictures of the respondent were shown to the witnesses, there is no admissible out-of-court identification that can be said in this case.


Now, while the Ombudsman believed in the allegation of the alleged victim that he was blindfolded all the way from Dasmariñas to the NBI compound in Manila and while the Ombudsman believed in the claim of the witnesses that the blindfold was only removed from the blindfolded victim at night time while allegedly inside the NBI compound, the Ombudsman did not consider the fact that there was no or little opportunity to view the respondent in the whole duration that the alleged kidnapping for ransom occurred.


By these circumstances, it can also be said that there was no or doubtful existence of the good degree of attention that the witnesses had on the respondent.


Then the Ombudsman believed in the victim’s claim that right after the removal of the blindfold the victim immediately recognized that he was at the NBI compound.  This is contrary to the fact that no person who has been blindfolded for more than eight hours will immediately have 20/20 vision once the blinfdold is removed. 


And if based against the guidelines set by the Supreme Court that the witness’ opportunity to view the criminal during the crime and the degree of attention given by the witnesses to the criminal are important to give credibility to the witness to identify the perpetrator, then the Ombudsman violated this jurisprudence on out-of-court identification that forms part of the law of the land.


Third Error


Given the gravity of the accusation and the punishment, the proceedings partake of a criminal case.


At least, the Ombudsman should have called in a clarificatory hearing or better yet submit the witnesses to cross examinations as required under judicial affidavit rule and as required under the Rules of Procedure of the Office of the Ombudsman, particularly Section 5(b)(2) of Rule III thereof, which states:

2.    If the Hearing Officer decides not to consider the case submitted for resolution after the filing of the position papers, affidavits and pleadings, to conduct a clarificatory hearing regarding facts material to the case as appearing in the respective position papers, affidavits and pleadings filed by the parties. At this stage, he may, at his discretion and for the purpose of determining whether there is a need for a formal trial or hearing, ask clarificatory questions to further elicit facts or information;

In the conduct of clarificatory hearings, the parties shall be afforded the opportunity to be present but without the right to examine or crossexamine the party/witness being questioned.  The parties may be allowed to raise clarificatory questions and elicit answers form the opposing party/witness, which shall be coursed through the Hearing Officer who shall determine whether or not the proposed questions are necessary and relevant. In such cases, the Hearing Officer shall ask the question in such manner and phrasing as he may deem appropriate.


By violating its own rules in deciding this case, the Ombudsman’s decision in finding the respondent as guilty is therefore null and void.


Fourth Error.


The respondent moved in the MR that the reconsideration be elevated to Tanodbayan Elevation to Conchita Carpio-Morales.


But Overall Deputy Ombudsman Orlando Casimiro did not even resolve this motion and went on to decide the case.


This is a mark of bias.


In support of the above discussions, the detailed discourses and arguments in the Motion for Reconsideration filed before the Ombudsman are hereby re-pleaded.


                                                         This pertinent part of the MR is discussed below:


Null and Void Decision
and
Grave Errors of Facts or Laws or Serious Irregularities


Before tackling the substantive aspects of the case, let the fact that the decision is null and void be tackled first.

Aside from the fact that there are so many grave errors committed by the Office of the Ombudsman in the findings of facts, its decision is a SHORTCUT without stating the issues and sub-issues and without stating the reasons on how each of these were resolved.
             
The Office cannot avoid the constitutional requirement that every written decision must state the issues and state the reasons and the law used to resolve each issue.  This is so because this is a command of the highest law of the land.

The Decision lacks the minimum standard of what a decision should be.  It merely jumped into conclusions without any basis and without even the temerity of stating the reasons for their findings on each of the issues of facts raised.

The Supreme Court in Brother MARIANO “MIKE” Z. VELARDE vs. SOCIAL JUSTICE SOCIETY, GR No. 159357, April 28, 2004, said the indispensability of the procedure and the substantive requirements laid out in the Constitution, the Rules of Court and relevant circulars/orders of the Supreme Court.

So that then Chief Justice Artemio Panganiban stated in the introductory paragraph of this case:

A decision that does not conform to the form and substance required by the Constitution and the law is void and deemed legally inexistent. To be valid, decisions should comply with the form, the procedure and the substantive requirements laid out in the Constitution, the Rules of Court and relevant circulars/orders of the Supreme Court. For the guidance of the bench and the bar, the Court hereby discusses these forms, procedures and requirements.

Thereafter, Chief Justice Panganiban cited the discourse of Chief Justice Hilario G. Davide Jr. in Yao vs. Court of Appeals (Yao v. Court of Appeals, 344 SCRA 202, October 24, 200), that states as follows:

Faithful adherence to the requirements of Section 14, Article VIII of the Constitution is indisputably a paramount component of due process and fair play. It is likewise demanded by the due process clause of the Constitution. The parties to a litigation should be informed of how it was decided, with an explanation of the factual and legal reasons that led to the conclusions of the court. The court cannot simply say that judgment is rendered in favor of X and against Y and just leave it at that without any justification whatsoever for its action. The losing party is entitled to know why he lost, so he may appeal to the higher court, if permitted, should he believe that the decision should be reversed. A decision that does not clearly and distinctly state the facts and the law on which it is based leaves the parties in the dark as to how it was reached and is precisely prejudicial to the losing party, who is unable to pinpoint the possible errors of the court for review by a higher tribunal. More than that, the requirement is an assurance to the parties that, in reaching judgment, the judge did so through the processes of legal reasoning. It is, thus, a safeguard against the impetuosity of the judge, preventing him from deciding ipse dixit. Vouchsafed neither the sword nor the purse by the Constitution but nonetheless vested with the sovereign prerogative of passing judgment on the life, liberty or property of his fellowmen, the judge must ultimately depend on the power of reason for sustained public confidence in the justness of his decision.


Then Chief Justice Panganiban also cited the case of People vs. Bugarin states the pertinent portion as follows:

The requirement that the decisions of courts must be in writing and that they must set forth clearly and distinctly the facts and the law on which they are based serves many functions.  It is intended, among other things, to inform the parties of the reason or reasons for the decision so that if any of them appeals, he can point out to the appellate court the finding of facts or the rulings on points of law with which he disagrees. More than that, the requirement is an assurance to the parties that, in reaching judgment, the judge did so through the processes of legal reasoning.x xx.

Thereafter, the Supreme Court through Chief Justice Panganiban stated a guideline for the bench and the bar, as follows:

Let us now, again for the guidance of the bench and the bar, discuss the essential parts of a good decision.

1. Statement of the Case

The Statement of the Case consists of a legal definition of the nature of the action. At the first instance, this part states whether the action is a civil case for collection, ejectment, quieting of title, foreclosure of mortgage, and so on; or, if it is a criminal case, this part describes the specific charge -- quoted usually from the accusatory portion of the information -- and the plea of the accused. Also mentioned here are whether the case is being decided on appeal or on a petition for certiorari, the court of origin, the case number in the trial court, and the dispositive portion of the assailed decision.

In a criminal case, the verbatim reproduction of the criminal information serves as a guide in determining the nature and the gravity of the offense for which the accused may be found culpable. As a rule, the accused cannot be convicted of a crime different from or graver than that charged.

Also, quoting verbatim the text of the information is especially important when there is a question on the sufficiency of the charge, or on whether qualifying and modifying circumstances have been adequately alleged therein.

To ensure that due process is accorded, it is important to give a short description of the proceedings regarding the plea of the accused. Absence of an arraignment, or a serious irregularity therein, may render the judgment void, and further consideration by the appellate court would be futile. In some instances, especially in appealed cases, it would also be useful to mention the fact of the appellants’ detention, in order to dispose of the preliminary query -- whether or not they have abandoned their appeal by absconding or jumping bail.

Mentioning the court of origin and the case number originally assigned helps in facilitating the consolidation of the records of the case in both the trial and the appellate courts, after entry of final judgment.

Finally, the reproduction of the decretal portion of the assailed decision informs the reader of how the appealed case was decided by the court a quo.

2. Statement of Facts

There are different ways of relating the facts of the case. First, under the objective or reportorial method, the judge summarizes -- without comment -- the testimony of each witness and the contents of each exhibit. Second, under the synthesis method, the factual theory of the plaintiff or prosecution and then that of the defendant or defense is summarized according to the judge’s best light. Third, in the subjective method, the version of the facts accepted by the judge is simply narrated without explaining what the parties’ versions are. Finally, through a combination of objective and subjective means, the testimony of each witness is reported and the judge then formulates his or her own version of the facts.

In criminal cases, it is better to present both the version of the prosecution and that of the defense, in the interest of fairness and due process. A detailed evaluation of the contentions of the parties must follow. The resolution of most criminal cases, unlike civil and other cases, depends to a large extent on the factual issues and the appreciation of the evidence. The plausibility or the implausibility of each version can sometimes be initially drawn from a reading of the facts. Thereafter, the bases of the court in arriving at its findings and conclusions should be explained.

On appeal, the fact that the assailed decision of the lower court fully, intelligently and correctly resolved all factual and legal issues involved may partly explain why the reviewing court finds no reason to reverse the findings and conclusions of the former. Conversely, the lower court’s patent misappreciation of the facts or misapplication of the law would aid in a better understanding of why its ruling is reversed or modified.

In appealed civil cases, the opposing sets of facts no longer need to be presented. Issues for resolution usually involve questions of law, grave abuse of discretion, or want of jurisdiction; hence, the facts of the case are often undisputed by the parties. With few exceptions, factual issues are not entertained in non-criminal cases. Consequently, the narration of facts by the lower court, if exhaustive and clear, may be reproduced; otherwise, the material factual antecedents should be restated in the words of the reviewing magistrate.

In addition, the reasoning of the lower court or body whose decision is under review should be laid out, in order that the parties may clearly understand why the lower court ruled in a certain way, and why the reviewing court either finds no reason to reverse it or concludes otherwise.

3. Issues or Assignment of Errors

Both factual and legal issues should be stated. On appeal, the assignment of errors, as mentioned in the appellant’s brief, may be reproduced in toto and tackled seriatim, so as to avoid motions for reconsideration of the final decision on the ground that the court failed to consider all assigned errors that could affect the outcome of the case. But when the appellant presents repetitive issues or when the assigned errors do not strike at the main issue, these may be restated in clearer and more coherent terms.

Though not specifically questioned by the parties, additional issues may also be included, if deemed important for substantial justice to be rendered. Note that appealed criminal cases are given de novo review, in contrast to noncriminal cases in which the reviewing court is generally limited to issues specifically raised in the appeal. The few exceptions are errors of jurisdiction; questions not raised but necessary in arriving at a just decision on the case; or unassigned errors that are closely related to those properly assigned, or upon which depends the determination of the question properly raised.

4. The Court’s Ruling

This part contains a full discussion of the specific errors or issues raised in the complaint, petition or appeal, as the case may be; as well as of other issues the court deems essential to a just disposition of the case. Where there are several issues, each one of them should be separately addressed, as much as practicable. The respective contentions of the parties should also be mentioned here. When procedural questions are raised in addition to substantive ones, it is better to resolve the former preliminarily.

5. The Disposition or Dispositive Portion

In a criminal case, the disposition should include a finding of innocence or guilt, the specific crime committed, the penalty imposed, the participation of the accused, the modifying circumstances if any, and the civil liability and costs. In case an acquittal is decreed, the court must order the immediate release of the accused, if detained, (unless they are being held for another cause) and order the director of the Bureau of Corrections (or wherever the accused is detained) to report, within a maximum of ten (10) days from notice, the exact date when the accused were set free.

In a civil case as well as in a special civil action, the disposition should state whether the complaint or petition is granted or denied, the specific relief granted, and the costs. The following test of completeness may be applied. First, the parties should know their rights and obligations. Second, they should know how to execute the decision under alternative contingencies. Third, there should be no need for further proceedings to dispose of the issues. Fourth, the case should be terminated by according the proper relief. The "proper relief" usually depends upon what the parties seek in their pleadings. It may declare their rights and duties, command the performance of positive prestations, or order them to abstain from specific acts. The disposition must also adjudicate costs.

The foregoing parts need not always be discussed in sequence. But they should all be present and plainly identifiable in the decision. Depending on the writer’s character, genre and style, the language should be fresh and free-flowing, not necessarily stereotyped or in a fixed form; much less highfalutin, hackneyed and pretentious. At all times, however, the decision must be clear, concise, complete and correct.

An examination of the instant decision shows that it narrates the facts as claimed by the complainant in seven (7) paragraphs. 

To the contrary, as if there was bias, the Office narrated the defenses of the respondent in ONE PARAGRAPH ONLY.

What add more to the suspicion of bias, the Office then went to conclusions on some but not all issues raised.

First, the Office stated that “respondent merely raised new issues to cast doubt on the credibility of the evidence presented. He, however, failed to specifically deny the charges against him.”  SO SAD.  It did not explain why the Office concluded that the respondent merely raised new issues to cast doubt on the credibility of the evidence presented.

To the contrary, the respondent did not only raise issues that boiled down into the root of each of the evidence presented.  He actually pointed out the HARD EVIDENCE consisting in documents that DID NOT JIBE WITH THE CLAIMS OF THE WITNESSES OF THE COMPLAINANT.

For instance, the respondent pointed out that the LOGBOOK OF THE SECURITY GUARD OF THE GATE and HIS AFFIDAVIT. 

In this logbook, it shows that the controversial car with license plate no. UDT 512 went out of the gate of the NBI at 11:30 p.m. of March 10, 2009 and that the succeeding entries in the same logbook showed that the same car did not come back even the next day. THIS CLEARLY MADE AS FALSE the claims of the witnesses of the complainant who are the policemen claimed in their affidavits that the same car entered the NBI gate at midnight.
             
To show patent error of the Honorable Office, it is necessary to show the claims in the report of the police witnesses and compare them against the logbook.

In the report of the police, page 2 of its Annex “03”, it reads:

On or about 10:30 in the evening of March 10, 2009, Ransom bearers and PACER operatives went to PAY OFF site and chanced upon one (1) black HONDA care bearing plate number UDT 512 parked infront of Manila Medical Center, Taft Avenue, Manila at around 12:00 midnight of the same day.  The driver alighted from the said car wearing red ball cap, white t-shirt and cargo pants and returned back from said vehicle after walking a few steps towards a white L-300 Van bearing plate number UCG 569.  Few seconds later, the black Honda car with plate number UDT 512 sped off towards Padre Faura, Manila followed by a silver colored HONDA car bearing plate number CTP 111.

The black HONDA car bearing plate number UDT 512 entered the National Bureau of Investigation Compound, Taft Avenue, Manila and after a few minutes, the two ransom bearer (AAA and VVV ) entered the same compound.

Assuming this narration of the PACER as supported by their affidavits to be true, it means that the black Honda (UDT 512) entered the NBI compound after midnight of March 10, 2009.

However, if the logbook is consulted to, it shows that a car described as a black Accord with plate number UDT 512 exited from the NBI compound at 11:20 p.m.  This was backed up by the Sinumpaang Salaysay of Manolito Sevilla y Magahis, the security guard on duty from 11:00 p.m. of May 10, 2009 up to 7:00 a.m. of March 11, 2009, confirmed the logbook entry that the car with UDT 512 license plate went out of the NBI compound at 11:20 p.m.

The same logbook did not have any entry that the same black Honda did not come back to the NBI compound.  The same fact has been confirmed by the same security guard.

So that this clearly debunked the claim of the accusers that the said black Honda went inside the NBI compound after stopping on a street in front of Manila Medical Center.

This alone should be sufficient to acquit the respondent.

HOWEVER, the Office of the Ombudsman blatantly violated the TRUTH when it did not even consider this issue in its abbreviated decision.

In another instance, the complainant’s witnesses as written in the PACER memorandum based on its witnesses, stated as a continuation of the above narration as follows:

On or about 12:30 midnight of (the) same date, a silver colored HONDA car entered the National Bureau of Investigation compound and after several minutes the same car left the compound and routed towards Padre Faura, Manila where the victim together with the ransom bearers rode a taxi and fled to unknown destination while the silver colored Honda car went back inside the NBI compound.

Again this was not even mentioned in the decision as in the entry and exit issue about the black Honda.  This is a blatant violation of the due process of the respondent.

The LOGBOOK shows the truth, again.

The same logbook showed that from the exit time of the black Honda at 11:20 p.m., there is no entry or exit time of a silver Honda having plate number CTP 111.  The same was not even mentioned by the security guard on duty.

The fact that there is no recording as to the exit or entry of a silver Honda with plate number CTP 111, it means that the claim of the alleged ransom bearers are not true.  This is so because the absence of any vehicle having plate number CTP 111 is totally inconsistent with the claims of the alleged ransom bearers that they were made to ride on the same car to ferret them out to Padre Faura St. that is just near the gate of the NBI compound.

Again, this should also be enough to declare the innocence of the respondent.

IT IS VERY UNFORTUNATE that the decision did not even discuss about the logbook and the statement of the security guard.

Another blatant violation of the decision is ignoring the declaration of the same security guard that he did not see any two women or PACER policemen in the vicinity or coming inside the NBI compound.

Again, this was not discussed in the decision why this should not be considered in resolving the issue of whether there is substantial evidence to prove that the respondent is guilty of grave misconduct.

In these three instances, there is no explanation why these three material facts must be set aside in favor of the claims of the complainant’s witnesses.

To be very clear, let the records of exiting cars be narrated from the logbook, which are as follows:

a.      Nissan Safari, black (AD) – Plate No. FRS 878, exited at 11:09 p.m.;

b.      Mitsubishi Pajero, blue – Plate No. LMG 777, exited at 11:10 p.m.;

c.       Honda Civic, maroon (Tabbu) – Plate No. UMF 416, exited at 11:10 p.m.;

d.      L-300, green (Villados) – Plate No. TJG 116, without record of exit or entry;

e.      Toyota green (NCR), Plate No. WJA 196, exited at 11: (unreadable);

f.        Honda Accord black, Plate No. UTD 512, exited at 11: (unreadable);

g.       Nissan green (Eleazar), Plate No. UAZ 180, exited at 11:2(unreadable);

h.      Honda Civic green, Plate No. XSW 538, exited at 11:2(unreadable);

i.        Toyota green, Plate No. WLL 694, exited at 11:2(unreadable);

j.        Ford Everest white (Isidoro), exited at 11: (unreadable);

k.       Honda blue, exited at 11:(unreadable);

l.        Isuzu black (Pinera), exited at 12:(unreadable);

m.    Toyota blue, Plate No. XTZ 941, exited at 12:(unreadable);

n.      Mitsubishi Lancer green Plate No. WBU 949(Rivera), exited 1:(unreadable);

o.      Hyundai white Plate No. WAB 648, exited at 2:(unreadable);

p.      Pick-up gray, Plate No. TKB 228, exited at 2:(unreadable);

q.      Honda Civic black, Plate No. TLM 470, exited at 3:(unreadable);

Please take note that the affidavit of the security guard is marked as Annex “07” of the records, while the logbook copy consisting of four (4) pages is marked as Annex “08.”
             
Another error of the decision is not discussing why the alleged identification by the alleged victims cannot be accepted as substantial evidence.  Jurisprudence is rich in saying that in cases of identifying of a person outside the court, the witness must be confronted with a lineup off photographs or a lineup of persons.   In the instant case, the evidence submitted showed photographs of alleged witnesses pointing to the picture of the respondent without any other pictures put aside it.

Unfortunately again, there is no discussion on this aspect why this should be given the weight of substantial evidence, defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."

These pieces of evidence neglected or deliberately set aside by the Decision are more than the standard of substantial evidence to prove the innocence of the respondent.  But why did the decision set aside them and did not even discuss these in the decision?

Given these clear evidence proving the claims of the PACER operatives false, these are enough to say serious irregularities attended to the decision.

Clearly, the accusations cannot be believed in because the pieces of evidence submitted are very insufficient to support the contentions.

Another error of the decision is it did not explain or justify why the affidavits of the civilian witnesses must be given faith when these were not even called in to identify and verify the affidavits in compliance with the doctrine established in Tapiador vs. The Office of the Ombudsman, G.R. No. 129124, March 15, 2002, which pronounces:

Notably, the instant administrative complaint was resolved by the Ombudsman merely on the basis of the evidence extant in the record of OMB-ADM-0-94-0983. The preliminary conference required under Republic Act No. 6770 was dispensed with after the nominal complainant, then BID Resident Ombudsman Ronaldo P. Ledesma, manifested on July 29, 1996 that he was submitting the case for resolution on the basis of the documents on record while the petitioner agreed to simply file his memorandum. Consequently, the only basis for the questioned resolution of the Ombudsman dismissing the petitioner from the government service was the unverified complaint-affidavit of Walter H. Beck and that of his alleged witness, PurisimaTerencio.

A thorough review of the records, however, showed that the subject affidavits of Beck and Terencio were not even identified by the respective affiants during the fact-finding investigation conducted by the BID Resident Ombudsman at the BID office in Manila. Neither did they appear during the preliminary investigation to identify their respective sworn statements despite prior notice before the investigating officer who subsequently dismissed the criminal aspect of the case upon finding that the charge against the petitioner was not supported by any evidence. Hence, Becks affidavit is hearsay and inadmissible in evidence. On this basis alone, the Administrative Adjudication Bureau of the Office of the Ombudsman should have dismissed the administrative complaint against the petitioner in the first instance.

Thus, it is unfortunate for the decision to give the presumption of regularity to the reports of the NBI and PACER.

Additionally, the respondent was not even given an opportunity to face the witnesses and cross-examine them.  This is highly irregular.  The Office should have called in a hearing that is commensurate to the punishment that is at stake here that is dismissal from the service.

With these, it is the height of unfairness for the Office to just rely hook, line and sinker on the claims of PACER and the NBI investigating officers assigned who handled this case at the first stage.

Other issues raised that were not given a fair chance being examined thoroughly are:

1.      the letter of Espina was supported by the alleged “Special Report” signed by Lee, which was not supported by any evidence although it stated only in its “I. Reference:” portion that the same report was based on the alleged “Complaint Sheet” dated March 10, 2009 relative to the abduction of one ZZZ @ Benjie, 33 years old”, yet no such complaint was attached.

2.      Even an examination of the report of SI-V Felix O. Señora dated July 08, 2009, docketed as IAD Case No. 200-036 supports the contention that there are indeed insufficient evidence to prove this very shameful and very serious criminal charges of kidnapping with ransom.   It states at first that the reference of the report of Señora is a letter-request of former PACER chief, Police Senior Supt. Leonardo Arias Espina.    Then it stated the content of the letter of Sr. Supt. Espina (IAD Evidence-01).  Then that report of Señora copied in verbatim the “Special Report” (IAD Evidence—03) of Police Supt. Ronald Oliver Lee addressed to Espina.    Then the report of Señora stated that a notice (IAD Evidence—04) was issued to me to comment or explain my side in writing under oath but that I did not submit any.   Then the report stated that alleged victim, Panayangan ZZZ, executed a sworn affidavit (IAD Evidence-05).      HOWEVER, a scrutiny of the alleged affidavit of one Mr. ZZZ, done in a “tanong-sagot” format, stated that it was given before PO3 JEROME F. GOLPO and signed before PSINSP. ARTURO M. FULLERO, that when seen at the LAST PAGE it shows that there is NO NAME of Arturo M. Fullero, and STRANGELY the name of SI V Felix O. Señora is printed by a typewriter and not in the original computer-printed form and signed above it by Señora, and MORE STRANGELY the date of execution is stated as “11th day of March 2009” when the date of submission of the letter of Espina was March 18, 2009.    FALSIFICATION – that due to this signature of Señora on this alleged “tanong-sagot” affidavit of one Mr. ZZZ, there was a falsification that took place by means of making it appear that Panayangan ZZZ subscribed before Señora on 11th day of March 2009 when it was impossible to happen because the letter of Espina was submitted to the NBI Director only on March 19, 2009 as shown by the “RECEIVED” stamp at the right hand corner of the March 18, 2009 letter.    Then the report of Señora stated that the complaint-affidavit of Mr. ZZZ was supported by the joint affidavit (IAD Evidence—06) of PCI Santos B. Sumingwa and PO1 Arnold P. Aromin.   LONG-DELAYED AFFIDAVIT OF OFFICERS SUMINGWA & AROMIN:  Affidavits of police officers should be executed right away at once after the operation and in this case Sumingwa and Aromin claimed they operated in the evening of 10 March 2009 but they executed their joint-affidavit on 30th day of June 2009, almost three (3) months, yet they did not explain why it took them too late.    TO THINK, the alleged “Special Report” of Supt. Lee does not make any reference to a particular police officer but mentions only as “PACER operatives” and it also does not refer to any affidavit of operation.    LONG DELAY DIMINISHED WEIGHT OF AFFIDAVIT OF OPERATION:  Such that this joint-affidavit LOST ITS EVIDENCE VALUE for unexplained delay and unexplained omission of names of PACER operatives who were claimed by Supt. Lee as having accompanied the alleged ransom money bearers.   Then the report of Señora stated about the affidavit (IAD Evidence—07) of Manolito Sevilla y Magahis, guard on duty of the NBI gate.  Then the report of Señora stated about the logbook (IAD Evidence—08) of the said guard on duty.   DATE OF JOINT-AFFIDAVIT OF THE VICTIM & WITNESSES: Then, the report of Señora stated about the joint affidavit (IAD Evidence—09) of the alleged victim and his co-affiants where it is said that they positively identified the respondent but that the same took place after the occurrence of circumstances that afforded opportunities for the alleged complainant to be coached and to master my identity.    NO OTHER PICTURES BUT THE RESPONDENT’S ALONE: Then, the report cited a picture (IAD Evidence—10) where the alleged victim points to a picture that purports to be the respondent, but that there was no other picture placed aside that picture to ensure against fraud of coaching.    NO OTHER PICTURES BUT THE RESPNDENT’S ALONE:  Then, the report cited another picture (IAD Evidence—11) where the alleged WWW Padate y ZZZ points to a picture that purports to be the respondent but there was no other picture of another person that was placed beside to ensure against fraud by means of coaching.   On these bases alone, SI V Señora stated that the respondent was positively identified by the kidnapped victim and his witness who was the alleged bearer of the alleged ransom money, “truly revealed that Subject committed a capital offense, a crime for Kidnapped for Ransom” – A NON SEQUITOR.   It is prohibited by the jurisprudence to do identification with only the picture or the person to be identified as the only choice and no other.     Jurisprudence teaches that OUT-OF-COURT IDENTIFICATION must be one where the witness must be confronted with at least many persons from who the witness chooses the person he identified as the culprit.    That SI V Felix O. Señora stated that on the bases alone of these “there are strong evidences that the allegation leveled against him would indeed prove to be true” ­– A NON SEQUITOR.    Then Señora stated without basis that the respondent could no longer be found when he even submitted his Affidavit of Explanation.    It is very clear that Señora relied only on what were fed on him by the PACER chief that there is no indication that he exerted efforts to make more discoveries, a work of a lazy investigator.


It is very clear that all the affidavits are hearsay for lack of the requisite identification and verification as mandated by Tapiador vs. Office of the Ombudsman.   So that at this point of the proceedings, ALL THE AFFIDAVITS SUBMITTED ARE HEARSAY and do not pass the requirement espoused in that case law.

Another thing that was ignored by the decision is the issue of motive raised by the respondent.   He insisted that the NBI through then Director Nestor Mantaring decided to be a nominal complainant without first ensuring the veracity of the affidavits and alleged evidence because of the rivalry between Mantaring and NBI Deputy Director Ruel Lasalla.  Both officers were rivals to the position of Director during the vetting while the respondent was well known to be a loyalist of Lasalla.

Despite the rivalries that often happen among the superiors at the NBI that often caused the subordinates to be the receiving end of vengeance or retaliation, the respondent managed to succeed in his career as shown by the success of the teams where he was assigned, as evidenced by dozens of citations, including the work of crushing the notorious Alvin Flores gang in Cebu, which citations are attached hereto to the Counter-Affidavit as a series of ANNEXES “1”.

After all, a close scrutiny of the allegations of Panayangan ZZZ will show stories that are too difficult to be reconciled with human experience that can be taken of judicial notice.

ZZZ claimed that on March 10, 2009, around 10:00 a.m., the respondent was one among the men in two Honda sedan cars that parked in front of and at the back of the public utility jeepney ZZZ claimed he was parking in front of a motor shop owned by one Torio, located in Barangay H-2, Dasmariñas, Cavite.   He did not even present the affidavits of persons present at the motor shop at the time of the happening of the alleged incident.

Then ZZZ would claim that he identified the plate number of the black Honda as UDT-512 and would also claim that he failed to get the plate number of the other car colored silver.  If the story of ZZZ were true, it is too unbelievable that a man in shock over the abduction would never have a time to glance at a plate number and memorize the same.

Then ZZZ claimed that an armed guy among these armed men approached him and ordered him to board the black Honda parked at the back of the jeepney.  Now considering that the black Honda was parked at the back of the jeep, the more that it becomes doubtful how he glanced at to note down the plate number and then equally doubtful to believe in the claim that he would later memorize the plate number while being blindfolded all the day time with the alleged terrorism done on him.

Then, ZZZ claimed that the armed men demanded One Million Pesos (Php1,000,000.00) from him or he will be charged with illegal drug charges.  Also, he claimed that the armed men manhandled him inside the black sedan.  Then he said his relatives negotiated with the armed men who later agreed to lower the demand from Php1 million to Php340,000.00.   Thereafter, he claimed that his relatives were WWW Padate y ZZZ and VVV Disomangkop y Apala and that they were instructed by armed men to go to the NBI office in Manila.   This is too difficult to believe in because ZZZ could not hear what was being said in the other end of the line if indeed the armed men called up his relatives.    The story continued that the relatives sought help from the PACER and they arrived there at PACER’s office.  The claims as to the time of arrival were conflicting: first they claimed they arrived at PACER’s headquarters at 6:00 p.m. of March 10, 2009 but they claimed in other affidavits that it was 8:30 p.m.   This discrepancy was not even discussed by the decision.   They also claimed that during the investigation conducted on the relatives of ZZZ, a call for the ransom money was made so that the PACER formed a team that it sent to accompany the relatives to the pay-off site.  Then the PACER team claimed they arrived at 10:30 p.m. at the designated place and chanced upon a black Honda car with license plate no. UDT-512 in front of Manila Medical Center on Taft Avenue around midnight of March 10, 2009.    That a man with red bull cap and in cargo shorts and white t-shirt alighted from the same Honda car and returned to the same car after walking a few steps toward a white L-300 van bearing plate no. UCG-569.   This was questioned by the respondent in his position paper as inconsistent to human habit of life because the PACER operatives did not even do the arrest when they could have done, but which the decision merely explained as “within the operatives’ call which this Office cannot dwell on.” (My goodness)   Then the script said that the same Honda car entered the NBI Compound on Taft Avenue, Manila but after a few minutes the two ransom bearers ( Padate y ZZZ and VVV Disomangkop y Apala) entered the same compound.  As betrayed by the logbook, this did not happen.   That about 12:30 in the morning of March 11, 2009 a silver colored Honda car entered the same NBI compound and after a several minutes the same car left the compound and routed toward Padre Faura St., Manila where the victim and the ransom bearers were dropped off and rode a taxicab while the Honda car went back to the NBI compound.  Again, this story is not found in the logbook of the sentinel of the NBI Gate.   Then they claimed that after this operation of giving the alleged ransom money, the victim and the ransom bearers gave their voluntary statements and the victim was brought to the PNP Crime Laboratory for physical examination. 

There are so many glaring inconsistencies yet the investigating Ombudsman officer did not exercise prudence by calling in the alleged witnesses for some clarifications, considering the case is grave because it is meted the harshest punishment that is dismissal, equivalent to killing the person.

One circumstance is that ZZZ claimed he was blindfolded.  It did not occur to the Ombudsman to ask a question: “How could a blindfolded person possibly know the running and the sequences of events?”


Another circumstance not faced squarely by the Office is the subscription and as to the time of execution of the affidavit of ZZZ.   He also did not describe the distinct circumstances around that place during that time, another sign that he was not telling the truth or he was a fictitious person.    This fact must have added doubt to whether he was telling the truth or not.    Then he claimed he was driving a passenger jeepney but he did not even state the plate number and the registered owner of the alleged jeepney.     

ZZZ also claimed he cannot speak or understand Tagalog because he is a Maranao from Marawi City.   As such, it cannot be reconciled with his claim that he was driving a passenger jeep because it is necessary for him to know how to communicate with his passengers who are mostly Tagalogs or Visayans or speakers of dialects from the North or South of Luzon.

He also claimed that while the sedan was running and he was blindfolded and manhandled, he also claimed that after about thirty (30) minutes, the kidnappers stopped the car and he was prohibited from listening while the kidnappers called up his wife using his own cellular phone.  He also claimed that after this he was transferred to another vehicle and they proceeded in travelling.   This is incredible because they did not even present the contents of the text messages exchanged.    

ZZZ also claimed he was not able to eat and he could not determine how much hours had passed but he said he felt that they were entering a gate without stating what time was it or how many hours in his estimate had passed when he said he felt they entered a gate.   In other words, all the statements uttered here were stated in a manner that jumped too long that it appears he was only making a shortcut to the ending and ignored the fact that he was claiming he was in blindfold in all these sequences of events.  

The time elapsed as told by ZZZ is also incredible.    It shows that as if the time frame from the time of the abduction up to the time of arrival at the NBI compound was too quick a fashion.  Why it took them twelve (12) hours to reach the NBI compound from Dasmariñas was not clarified.   But if his narration in his affidavit were to be examined from the time of abduction up to the time of giving ransom money inside the NBI compound, it immediately gave an impression that the interval of time spent must have been much shorter.

Then the script would say that ZZZ heard women and he recognized them as that of his sister Mariam Padate y ZZZ and VVV Disomangkop y Apala.   Then he claimed he heard that his sister demanded that they will give the money only if they see him alive.   After hearing the demands of his sister, he said the blindfold was taken off his eyes and the handcuffs were taken off his hands.   Then he would say it was only then he knew they were inside the National Bureau of Investigation, a claim that is something incredible for a man who claimed he did not know how to speak, read and write in Tagalog and something more incredible because he must in all probability has not gone to the NBI compound.    Additionally, the long time—from 10:00 a.m. to about 11:20 p.m.—that ZZZ was in blindfold will cause a dizzy look of his eyes and it will take more than twenty (20) minutes for his eyes to recover 20/20 vision.   How could he read the words of English such as “National Bureau of Investigation” when he did not know how to read, write and speak Tagalog?

Then ZZZ claimed that after the money in the amount of Php340,000.00 was handed to the man who abducted him, he was immediately made to board a silver car along with the two women.  Which claim has been debunked by the logbook to have happened.

Moreover, that presumably quick fashion from the time the money was given up to the time he was told to leave aboard the silver car must have given him very little exposure time for him to identify the persons he must have seen around him just after the blindfold was removed, but yet he claimed he can positively identify the man who abducted him.   Then he claimed they were immediately driven to Padre Faura where he and the two women were told to alight from this silver car, this must already be around 1:00 a.m. of March 11, 2009.  This is debunked by the logbook.

Unfortunately, what have been stated as issues raised in the position paper have never been passed upon by the lazy Decision.


Another clear inconsistency to human habit of life is the story that the alleged two women relatives of ZZZ came to PACER to their office, 6:00 in one claim and 8:00 in another claim.   The PACER officers claimed that the relatives were accompanied by Cavite Police officers.  Of all the most unbelievable is the story that WHILE THE ALLEGED VICTIM WAS NOT YET FOUND OR KNOWN AS TO WHEREABOUTS the alleged relatives already knew the details of how the kidnapping occurred, of how many cars were involved and how were the description of a man with the gun were given.   It was simply impossible for the relatives to know because the victim himself alleged that he was manhandled, blindfolded and was prohibited from listening when the kidnappers talked to his wife, so that there was no way for him to reveal what really happened, along with the improbability of all for the kidnappers to give the details.

It becomes more ridiculous for the law enforcers to immediately act on when there was no complaint sworn before them.   In this case, PACER has not submitted any spot or immediate report about the kidnapping, neither there was a blotter when it is a standard operating procedure.  They did not even submit records of blotters of actions done on the case, from the first to the last.   So that there was no performance of official functions to speak of.   If there was no performance of official function to speak of, then there is no presumption of regularity that can attach.

Aside from the fact that the joint-affidavit of PCI Sumingwa and PO1 Aromin was executed too late in the day, three (3) months and twenty (20) days, the same is unbelievable by reasons of: (a) lack of substantial evidence to support the claims; (b) improbable to happen in the normal habits of life of police officers or law enforcers; and (c) the lack of arrests or apprehension of vehicles.

One issue was tackled by the decision is the issue that the respondent raised that it was too improbable for the ransom payment to occur inside the NBI compound.   The only way the Office disposed of it is by arguing that it is not impossible to happen.  It missed the point that while it is possible for ransom payment to occur inside the NBI compound, it must find out why and how it happened because of the presence of the circumstances that made it almost incredible to happen, let alone the logbook at the gate.   So that unless it is explained how it became possible that the payoff happened inside the NBI compound, it can never be given a weight to say that the payoff was done inside the NBI headquarters.

To reiterate, it is imprudent of the Office to stay that it cannot dwell on the issue raised that if it were true that the respondent was one of those who abducted, the PACER operatives could have already arrested the person coming down of the black Honda.  It is unfortunate that the Office would just stop right there when it is its obligation to explore the truth.  For not doing enough, the Office violated due process.  So that it was unbecoming a PACER for them to say its officers saw the black Honda in front of Medical Center Manila along with an L-300 van and saw the respondent coming down but they did not make any arrest.  It is presumed that if the ransom payoff was true, the PACERS operatives sent to accompany the couriers they should have been in full battle gears sufficient to confront all possibilities.   But the fact that they said they did not arrest is equivalent to saying “it was not true.”   These falsities are backed further by the fact that there is nothing in the logbook that says about the silver Honda and nothing that says that the black Honda entered the NBI compound after midnight of March 9, 2012.  What made it more improbable is the fact that PACER chief did not coordinate with the director of the NBI if indeed its operatives already had the prior knowledge of a ransom payment that was about to happen.  There was no mention as to where the L-300 van went and that there must have been opportune time to pounce on, and if otherwise PACER operatives did not explain why they failed to make arrests or apprehensions is equivalent to saying, “hey it was not true.”

The fact that the PACER report did not contain the names of its operatives who accompanied the relatives of the alleged kidnap victim is an indication of falsity.   Also, the fact that two PACER operatives, PCI Sumingwa and PO3 Aromin executed their affidavit only on June 30, 2009 and the delay was not explained diminished whatever presumption there may be.   Why the delay of more than three months? They did not explain.  By the way, why PACER operatives did not conduct a follow-up operation is not explained until now, which means the claim is not true after all.  Then, why it took PACER chief to submit its letter to the NBI director only on March 19, 2009?  This is also not explained. 

Then, why did PACER operatives include the alleged story of another kidnapping from Baguio where the payoff site was made in Metro Manila, when this is not related to the case at bar? If the alleged Baguio incident were true, why, again, PACER operatives did not do anything until this latest alleged incident? They did not explain, again. 

As to the mortgage paper presented, this is only one of the very few issues it resolved.  But when it resolved the issue, the Office did it in half-hazard manner.   Sure, the law on chattel mortgage needs an affidavit of good faith to be valid.  However, this is only true in formal organizations such as banks and not normally done usually between person-to-person transaction and for enforcing the same in civil courts.  

The fact that it is possible to happen that the mortgage was true despite the imperfectness or voidness of the transaction was not tackled by the decision why it meant the mortgage paper cannot be given weight. 

On the other hand, the existence of the document of “chattel mortgage” is sufficient for the purpose of determining the truth of whether the claim is true or not and not for the purpose of enforcing the contract.  

The car being referred to is the black Honda Accord mortgaged by the respondent to a Muslim businessman asset for One Hundred Thousand Pesos (Php100,000.00) because of the emergency problem to pay off the hospital bills of his common-law wife who delivered their baby that time by means of caesarian section on December 21, 2008 at St. Clare Hospital in Makati City.   

As stated in his affidavit, the car’s mortgage was with the surrender thereof to the mortgagee.   The hospital bills were attached to the Affidavit of Explanation of the respondent to prove further the necessity of money.  The name of the mortgagee is Ansari Macmud Khadijali, of Barangay Culiat, Quezon City.  A copy of the mortgage deed was attached to the same Affidavit of Explanation.


Motion to Elevate this Motion
to Ombudsman Carpio-Morales

Considering the gravity of the issues raised against the Decision, the respondent requested that this motion for reconsideration be elevated to Tanodbayan, the Honorable Conchita Carpio-Morales.

Under these circumstances, it would be imprudent for the same persons to review the decision and the motion for reconsideration.   It is important to avoid suspicion so that propriety dictates that this motion be resolved by persons other than those who took part in the decision.

The reputation for the ability to be fair is a pillar of trust in an institution.



The Issues



            The petitioner submits the following as issues to be resolved in the instant case, to wit:

1.                 Did the CA err in applying the law on presumptions when it affirmed that UNTESTED ALLEGATIONS IN THE AFFIDAVIT OF WITNESSES CAN OVERTURN THE LOGBOOK OF THE OFFICER AT THE GATE as to all exits and entries of persons and vehicles through the gate?


2.                 Did the CA err in applying the law on evidence in ruling that UNTESTED ALLEGATIONS IN THE AFFIDAVIT of a witness ENJOY THE PRESUMPTION OF REGULARITY AND VALIDITY AS TO THE ALLEGATIONS THEREIN?


3.                 Did the CA err in applying the law of habit of life when it affirmed that the UNTESTED ALLEGATIONS IN THE AFFIDAVIT OF A WITNESS BLINDFOLDED ALL THROUGHOUT THE PERIOD OF ALLEGED KIDNAPPING when he claimed he recognized the place a few seconds after the blindfold was removed?


4.                 Did the CA err in applying the law of habit of life when it affirmed that the UNTESTED ALLEGATIONS IN THE AFFIDAVIT OF A WITNESS who testified what did the kidnappers talk about in Tagalog WHEN THE WITNESS PROFESSED HE CANNOT SPEAK OR UNDERSTAND TAGALOG?


5.                 Did the CA err in applying the IDENTIFICATION OF SUSPECT RULE when it affirmed as valid the IDENTIFICATION OF THE PETITIONER BY THE ALLEGED VICTIM AS THE KIDNAPPER WHEN THE IDENTIFICATION PROCEDURE WAS DONE BY PRESENTING TO THE VICTIM ONLY THE PHOTOGRAPH OF THE ALLEGED KIDNAPPER?


6.                 Did the CA err in ruling that the Office of the Ombudsman correctly exercised its powers under the law in not conducting clarificatory hearings despite the undisputed fact that the facts stated in the logbook entries are in diametrical opposition against the allegations of the witnesses?





The Discussions




Logbook vs untested affidavits

           

            Logbook is a kind of record of entries made at or near the time of the transactions in the regular course of performance of duties of the officer assigned to perform the duty of recording of those entries.


            By its nature alone of logbook, the officer having the duty to make entries of ingress and egress of persons of vehicles through the gate he keeps is presumed to have no interest to lie in making those entries, and in the making of records there are no manifestations of erasures on entries of handwritings, information and time or no spaces in between entries, the logbook and its entries are prima facie evidence of the entries therein as to who, what, where, why, when and how.


            The nearest rule in the Rules of Evidence that is applicable on logbook is Section 43 of Rule 130, which states:


Entries made at, or near the time of the transactions to which they refer, by a person deceased, or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty.



On logbook, the Supreme Court said in eugenio G. palileo, ETAL. VS. NIA, G.R. No. 148574, to wit:


The entry in the log book and the certification issued by the Land Irrigation System custodian must be considered admissible and competent evidence as they form part of official records.  This is pursuant to the rule that entries in official records made in the performance of his duty by a public officer are prima facie evidence of the facts therein stated. Having been made by public officers in the performance of their duties, the evidentiary value of such document must, therefore, be sustained in the absence of strong, complete and conclusive proof of its falsity or nullity.”


In the instant case, the logbook accomplished by the sentinel on duty NBI Security Officer Manolito M. Sevilla at the time of the happening of the entries and exits of vehicles and persons during the period of time alleged by the witnesses of the NBI was submitted by the NBI Internal Affairs Division as Annex “IAD 08”.


It was a piece of document offered no less than by the NBI.


An examination of the concerned logbook entries showed that black Honda Civic having plate no. UDT-512 exited the NBI gate at 11:20 p.m. of 10 March 2010.


In the subsequent entries of the same logbook there is no record or entry about UDT-512.


The same logbook does not show that a silver Honda sedan entered or exited the NBI compound between 11:00 p.m. of 10 March 2010 and 2:00 a.m. of 11 March 2010.


In the same logbook, it was entered by NBI Security Officer Manolito M. Sevilla that the one driving the black Honda Civic having plate no. UDT-512 was petitioner YYY P. XXX.


Now, the PACER policemen witnesses claimed that the black Honda Civic with plate no. UDT-512 was spotted at 12 midnight of 10 March 2010 at the Medical Center Manila, about 100 meters from the gate of the NBI headquarters,  and shortly thereafter the same black Honda entered the NBI compound.  The PACER operatives also claimed having seen a silver Honda sedan (Plate No. CTP-111) followed the black Honda Civic and the same silver Honda sedan entered the NBI compound at 12:30 a.m. of 11 March 2010 and shortly thereafter left the same compound.  


The records of entries of the Logbook do not show about any entry or exit of a silver Honda with the same plate no. CTP-111 through the gate of the NBI compound.   There is also no entry in the logbook showing that the black Honda Civic re-entered the NBI compound after leaving therefrom at 11:20 p.m.


Now, put these beside the fact that the Logbook Entries contradicted the claim of the PACER police men witnesses that the black Honda Civic with plate no. UDT-512 was spotted at 12 midnight of 10 March 2010 at the Medical Center Manila, about 100 meters from the gate of the NBI headquarters, and shortly thereafter the same black Honda entered the NBI compound, as well as the claim of PACER policemen that a silver Honda sedan (Plate No. CTP-111) entered the NBI compound at 12:30 a.m. of 11 March 2010 and shortly thereafter left the same compound.   The records of entries of the Logbook do not show that a silver Honda with the same plate no. went inside the NBI compound or left shortly thereafter the same compound.


In the same logbook, there were no persons by the names of WWW Padate y ZZZ and VVV Disomangkop y Apala who were recorded in the logbook to have entered and exited the NBI gate.  WWW and VVV were claimed by the NBI as the women who gave the alleged ransom money to petitioner XXX.


In addition, NBI Security Officer Manolito M. Sevilla executed an affidavit stating the same facts that the black Honda Civic with plate no. UDT-512 exited the gate at 11:20 p.m. of 10 March 2010, that at no other time during the period that the same care entered the NBI gate, that there was no such person named WWW Padate y ZZZ and VVV Disomangkop y Apala who entered or exited the same gate during the same period of time.


The said affidavit of Sevilla was identified and submitted by the NBI as Annex “IAD-07.”


Moreover, the NBI did not present, much less allege, that NBI Security Officer Monolito M. Sevilla cannot be believed in his declarations and in his entries in so far as the insistence that petitioner XXX did not come back anymore to the NBI compound after exiting therefrom at 11:20 p.m. of 10 March 2010.


Now, if it is to follow the nature, logic and jurisprudence on logbook, the entries therein written by NBI Security Officer Manolito M. Sevilla must be PRIMA FACIE EVIDENCE of what it declares.    With more reason that its degree of proof becomes more entrenched with the affidavit executed by Sevilla, stating the same facts as what appears in the logbook, and with the truth that the NBI did not assail the credibility of NBI Security Officer Sevilla.


Therefore, what is prima facie here is that it was petitioner XXX who was driving the black Honda Civic having license plate no. UDT-512, and that he exited the gate of the NBI compound at 11:20 p.m. of 10 March 2014.


As defined by the principle of evidence, prima facie is a degree of proof that is sufficient to conclude a proposed fact unless overturned by a higher degree of contrary evidence, which degree must be at least in the level of CLEAR AND CONVINCING.


But the Court of Appeals overturned this well-entrenched principle of evidence, even going against the decision of the Supreme Court.


And the Court of Appeals ruled that this prima facie nature of this logbook as to the entries therein has been overturned by mere affidavits of witnesses, who the CA declared as “categorical and positive declarations” without factual or legal basis.


To begin with, the affiants of these affidavits have never been tested against cross-examination or clarificatory questions.  (To be discussed below as an error of the CA)


Secondly, a reading of the allegations in the affidavits of witnesses Paisar ZZZ who was alleged as the kidnapping victim, WWW and VVV, clearly shows material inconsistencies as against the nature of life.


Thirdly, as will be discussed below, witness Paisar ZZZ claimed he was blindfolded but he testified on matters that are highly improbable if not impossible for a blindfolded person to obtain personal knowledge.


Fourthly, as will be discussed below, witness Paisar ZZZ claimed he cannot understand and speak Tagalog yet he testified as if he understood all the conversations in Tagalog supposedly spoken by the kidnappers while Paisar was being blindfolded.


Fifthly, the affidavits of two police officers cannot be believed in because of their failure to explain why it took them three (3) months and twenty (20) days to execute their affidavits.  To the contrary, this is a piece of evidence that the same police officers did not perform their official functions.  


Sixthly, these police officers did not submit their unit’s blotter entries about their jump-off from their unit to accompany the alleged ransom carriers allegedly designated to give ransom money for the freedom of Paisar.  These blotter entries are required of all police offices to perform in all covert and overt operations.


Seventhly, there is not record in saying that these PACER police officers used assault team to confront alleged kidnappers, contrary to what is naturally expected of any police officers to do when confronted with this issue.


Eighthly, as will be discussed below, the CA erroneously declared that the affidavits of witnesses enjoy the presumption of regularity that can be overturned only by clear and convincing evidence.


            In its erroneous ratiocination, the CA declared about the logbook issue, to wit:


Second. On the probative weight of the NBI logbook, we uphold the Office of the Ombudsman assessment of the matter, viz:


Contrary to respondent’s claims, the entry in the Logbook only shows that the vehicle (UDT 512) exited from the NBI gate at 11:20 PM. It does not necessarily mean, however, that the vehicle did not come back at the NBI compound, or there was no pay-off that took place inside NBI Compound. The categorical and positive declarations of the witnesses that the vehicle (UDT 512) entered the NBI compound before the ransom bearers went inside the NBI compound prevails over the absence of any record in the Logbook as to entry or re-entry of the vehicle (UDT 512). Also, the Sinumpaang Salysay of the victim and witnesses were taken during the investigations conducted by NBI and PNP-PACER and there is no proof that those were fabricated. Therefore, such sworn statements are worthy of credence.


The Office of the Ombudsman did not err in relying on the affidavits of NBI witnesses. For one, the affidavits presented by the NBI were notarized documents executed to lend truth to the statements contained therein and to the authenticity of the signatures. Notarized documents enjoy the presumption of regularity which can be overturned only by clear and convincing evidence.   Logbook entries, by themselves, have less probative weight than duly sworn affidavits.  For another, petitioner has not shown that the witnesses who executed these affidavits were motivated by malice or ill-will against him. His allegation that he was a collateral damage of the rivalries inside the NBI is unsubstantiated and at best vague. Allegations must be proven by sufficient evidence because mere allegation is not evidence.


Still another, the witnesses were positive and categorical when they identified petitioner's car as one of the 2 vehicles used in the kidnapping. It is axiomatic that positive testimony prevails over negative testimony.



            Clearly, the CA erred in setting aside the Logbook Entries in favor of untested allegations of alleged witnesses in their affidavit.


            Ergo, on this score alone, it is a must that the Decision and the Resolution of the CA denying the motion for reconsideration must be REVERSED.



Untested affidavits do not enjoy
presumption of regularity



            Another glaring error of the Court of Appeals is when it declared that the affidavits of all the witnesses of the NBI enjoy the presumption of regularity.


            This is a height of absurdity.


            In so declaring, the CA used an erroneous inference from a case law entitled Spouses Vicente S. Arcilla and Josefa Asuncion Arcilla vs. Ma. Lourdes A. Teodoro, GR No. 162886, August 11, 2008.


            In its declaration, the CA erroneously stated that “the affidavits presented by the NBI were notarized documents executed to lend truth to the statements contained therein and to the authenticity of the signatures.”


            If it is to follow from this statement, then the counter-affidavit as well of the petitioner for having been notarized “lend truth to the statements contained therein and to the authenticity of the signatures.”


            But if the Spouses Arcilla case is to be examined, IT REFERRED TO NOTARIZED DOCUMENTS and NOT NOTARIZED AFFIDAVITS.


            Of course, notarized documents are one thing while notarized affidavits are another thing.


            Notarized documents are more solemn because the parties acknowledged to document or instrument and its contents before the notary public.   While notarized affidavit was mere subscribed and sworn to before a notary public without inquiry into the truth of the contents thereof.


            Further, notarized documents or instruments are in the nature of declarations adverse to the interests of the declarants.  A seller declares he loses ownership so that when it is notarized before an acknowledgment officer it is a prima facie evidence that indeed the seller sold the thing involved.   A donor declares he gives away for nothing his property and when it is notarized it is a prima facie evidence that he indeed lost the thing by donation.   A waiver of right loses right so that once it is notarized it is a prima facie evidence that it is true.


            Ergo, the CA erroneously lumped up notarized affidavits with notarized instruments or documents.


            And with the glaring material defects and material inconsistencies, then it is more glaring that the CA erred in declaring that the affidavits of the witnesses of the NBI are presumed regular that can be overturned only be clear and convincing evidence.


            This is a very unfortunate event in this time of the history of jurisprudence.


            Actually, this is more than a mere error.  This is already grave abuse of discretion.


Ergo, this alone is sufficient to overturn the Decision of the CA and its Resolution denying the motion for reconsideration.






Untested affidavit of
blindfolded witness




A man in blindfold cannot see what is happening in his immediate surroundings.  He may feel events were happening.  But he lacks the ability to perceive to correctly perceive in the degree of substantial evidence what occurred.


As such, it cannot be believed in that a blindfolded man inside a running vehicle can still say that a car was entering the gate of the NBI compound.


As such, the blindfolded man cannot be believed in if he identifies who punched him or who hurt him while he was blindfolded.


As such, the blindfolded cannot be able to say who among the strangers holding him was talking or shouting or calling over a phone.


As such, if anybody among his captors is calling on a cellular phone the blindfolded cannot be able to know and hear what were uttered by the person in the other end of the line was saying or who was exactly the person in the other end of the line.


A man blindfolded for almost twelve (12) hours cannot recover his sight in one or two minutes from the time the blindfold is removed.  So that it was impossible to believe in the claim of Paisar ZZZ that he immediately recognized that he was at the NBI compound when the blindfold was removed from his eyes.   Moreover, a man who cannot speak and understand Tagalog is presumed to have not gone to the NBI headquarters so that it was highly improbable for him to be able to know an NBI office or building.


So that there is no substantial evidence to believe in the allegations stated by Paisar ZZZ in Tagalog in his affidavit.


With regard to his wife and sister, the two cannot also be believed in with substantial evidence when they claimed in their affidavits that they were called by kidnappers over a cellular phone to inform them that Paisar was being held in captive.  This is because they did not allege that Paisar was made to talk to them.  The only thing that they can say was that the telephone number of Paisar was the one used in calling the women, which fact does not necessarily mean that indeed Paisar was being kidnapped considering again that they did not say that Paisar was made to talk to them.  For sure, the women were in a far place and cannot actually see Paisar at that time.


Also, the allegations of the two women that they entered the NBI compound bringing ransom money cannot be given the weight of substantial evidence.  This is because their names were not listed in the logbook of NBI Security Officer Sevilla as having entered or exited the NBI compound.  They also never gave explanation why their names were not listed in the logbook.


The allegations of two PACER police officers, Police Chief Inspector Sumingwa and PO1 Aromin, cannot also be given the weight of substantial evidence because their affidavit was not tested against cross-examination or clarificatory hearing.  


Moreover, whatever weight there may have been in the affidavits of Sumingwa and Aromin was diminished to a large extent by the fact that they executed their affidavit only three (3) months and twenty (20) days after their alleged rescue operation on 10 March 2010 and the fact that they never explained the unforgivably-long delay.


What diminished further the believability in their affidavit is the fact that they never submitted documentary evidence that they performed the official functions required by the circumstances.  They did not submit any certified copy of the blotter entry of their unit to show that their alleged rescue operation occurred.   The lack of these basic documents gives a reasonable presumption that there was no such rescue operation that occurred.


Moreover, the fact that they did not bring with them superior number of policemen to rescue the kidnapped victim considering that they claimed they were already apprised that the kidnappers were NBI agents, the reasonable presumption was that there was no such rescue operation that took place.


           

Cannot speak or
understand Tagalog



            To begin with, Paisar categorically stated in his affidavit that he did not know how to speak in Tagalog and could not understand the same.


            If this is the premise, then there is no substantial evidence in the allegations of Paisar as to what the kidnappers were discussing about.


            That was made even more difficult for Paisar to comprehend what was happening because he claimed he was blindfolded.


            When all these, including the allegations above, are joined together with the fact that the alleged identification of the petitioner as the kidnapper was done by means of presenting to the alleged witness only the photo of the petitioner, then with all the more that there is no substantial evidence to show that indeed the petitioner was the one who kidnapped him, if it was true that he was kidnapped.


Now, put this also in the fact that Paisar and the police operatives were claiming that there were more than one kidnappers.  So why was it that they could only name one person and it was now the petitioner?   If there is any plausible explanation here, this means that the PACERS operatives knew beforehand who was YYY P. XXX.    And if they did not endeavour to know who else were the cohorts of YYY P. XXX, this means that there was no such thing as kidnapping that took place but a mere execution of a plot to prejudice XXX because they had been jealous to the petitioner who have been honoured with big accomplishments, including the busting in October 2009 in Cebu City of the notorious Alvin Flores Gang that raided the Rolex Store at Greenbelt, Makati.  That petitioner was among those commended for the successful operation of the Reaction, Arrest and Interdiction Division (RAID) of the NBI that was headed then by Atty. Ruel Lasalla.



Incorrect procedure in
identification of suspect



            The alleged witnesses claimed that there were more than one kidnappers and in two cars, a silver Honda sedan with plate no. CTP-111 and black Honda Civic with plate no. UDT-512.


            But as the photo evidence submitted by the witnesses showed, they only presented to the witness one photo and that one photo was a photograph of petitioner XXX.


Why present only one photograph when the correct procedure is to present a lineup of photographs in order to make the out-of-court identification objective and fair?


Why present only one photograph when they claimed there were many kidnappers who were with the petitioner when the alleged kidnapping occur?


With due respect, the Honorable CA erred in not scrutinizing the alleged out-of-court identification of photograph of the petitioner supposedly done by Paisar ZZZ as claimed in his affidavit.


            For this, the arguments raised in the petition are hereby reproduced.


There were no photographs of other NBI agents put aside the photographs of the respondent.   It therefore violated the jurisprudence requiring the lining up the picture of the suspect along with the pictures of other persons for this kind of identification to be valid.  But the decision called it as a substantial evidence of identification. Illogical.


The Supreme Court in People v. Teehankee, [G.R. Nos. 111206-08, 6 October 1995] laid down the guidelines to determine the admissibility and reliability of an out-of-court identification, declaring:


In resolving the admissibility of and relying on out-of-court identification of suspects, courts have adopted the totality of circumstances test where they consider the following factors, viz: (1) the witness’ opportunity to view the criminal at the time of the crime; (2) the witness’ degree of attention at the time; (3) the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the length of time between the crime and the identification; and (6) the suggestiveness of the identification procedure.


In the instant case, it is a shame for the Ombudsman to not detect the “suggestiveness” of the identification procedure that was done by the complainant NBI.


The act of showing the alleged witnesses two pictures, all of which were the ID photographs of the respondent in the files of the NBI, without showing picture of other NBI agents to the alleged witnesses is no less than a high degree of “suggestiveness.”


In People vs Pineda, G.R. No. 141644, May 27, 2004, in acquitting accused Pineda and Sison by reason of inadmissible photograph identification, the Supreme Court said:

Although showing mug shots of suspects is one of the established methods of identifying criminals, the procedure used in this case is unacceptable. The first rule in proper photographic identification procedure is that a series of photographs must be shown, and not merely that of the suspect. The second rule directs that when a witness is shown a group of pictures, their arrangement and display should in no way suggest which one of the pictures pertains to the suspect.


Hence, if only the pictures of the respondent were shown to the witnesses, there is no admissible out-of-court identification that can be said in this case.


Now, put these “identification scandal” beside the fact that the Logbook Entries debunked completely the claim of the PACER operatives as to the exit and entry of the two Honda vehicles.


Put this also beside the fact that the PACER operatives did not make immediate report to the NBI director.  It submitted a report to the NBI only on 19 March 2010, or eight (8) days thereafter.  If indeed there was ransom payment or kidnapping rescue that took place, the same incident of extreme importance in the campaign against crimes must have been reported by the PACER to the NBI director outright.  And because it took a week to do the report, it means that it is unbelievable.


There is only one reasonable conclusion here: THERE WAS NO KIDNAPPING THAT TOOK PLACE.



Grave abuse in disregarding
clarificatory hearing



            The CA is threading the path of grave abuse of discretion when it ruled that the Office of the Ombudsman was correct in disregarding the clarificatory hearing procedure despite the clamor of the petitioner.


            By common sense, clarificatory hearing is necessary when there are issues of facts that cannot be resolved by mere affidavits and documents submitted.


            And when there are clear indications such as in the issues of facts in the present case, the discretion of the Ombudsman to call for a clarificatory hearing must be done.  Otherwise, it is patently wrong and a grave abuse of discretion.


            Here, the allegations of the witnesses of the NBI clashed against the documentary evidence consisting of the logbook and supported by the sworn affidavit of the sentinel who was a public officer being a regular employee of the NBI.


            For sure, by prudence and fairness the Ombudsman do not have authority to set aside the logbook in favor of unverified and unidentified affidavits, unless it called in the sentinel concerned and the witnesses of the NBI to clarify.


            Aside from the logbook, there were plenty of other issues that must be clarified.


            For not calling in a clarificatory hearing, DESPITE THE INSISTENCE OF THE PETITIONER POINTING OUT GLARING INCONSISTENCIES IN THE EVIDENCE ALONE OF THE NBI, the Ombudsman clearly erred without question.


            This is actually grave abuse of discretion in disregarding the clarificatory hearing without explanation why the Ombudsman opted it that way.


Elevation to Ombudswoman



With due respect, to the Court of Appeals, while it is a discretion on the part of the Ombudsman to delegate to deputies adjudication tasks, the delegate has that obligation also to inform the Ombudsman of the motions of the parties that seek to elevate the case to the Ombudsman and an issue of his fairness is being questions. 


Failing in doing that is an act of grave abuse of discretion or power on the part of the Overall Deputy Ombudsman Orlando Casimiro.


With more reason that the deputy concerned has the obligation to inform the Ombudsman if the deputy’s impartiality is put under question.


In this case, the errors committed by the Overall Deputy Ombudsman in resolving the case are so patent and this is the biggest challenge. 


Yet, he never relinquished the case.


                                               
The Prayer




            ALL TOLD, it is prayed of the Honorable Court to set aside the Decision of the CA and its Resolution denying the Motion for Reconsideration and, in lieu thereof, another Decision be issued dismissing the instant complaint.


Other reliefs just and equitable are also prayed for.  5 November 2014.  Manila for Quezon City.


Causing Sabarre Castro
Unit 1, 2368 JB Roxas St. corner Leon Guinto, Malate, Manila
Emails: totocausing@yahoo.com, berteni.causing@gmail.com; Tel. No.: +632-3105521


By:

BERTENI CATALUÑA CAUSING
IBP No. 928535 / 06-01-2014 / Manila IV
PTR No. 2529536 / 06-01-2014 / Manila
Roll No. 60944 / MCLE (Admitted only in 2012)

Cc:

COURT OF APPEALS (CA GR SP No. 129490)
Maria Orosa St., Manila

OFFICE OF THE OMBUDSMAN
Ombudsman Bldg., Agham Road, North Triangle
Diliman, Quezon City


NATIONAL BUREAU OF INVESTIGATION
Taft Avenue, Manila City


Explanation


Lack of manpower compelled the service of copies of this Petition for Review on Certiorari via registered mails with return cards.



BERTENI CATALUÑA CAUSING
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