Вы находитесь на странице: 1из 12

Republic of the Philippines

REGIONAL TRIAL COURT


Second Judicial Region
BRANCH 36
Santiago City

DIONICIO V. MILLAN, SR.,


Plaintiff,

-versus- CIVIL CASE NO. 36-3903

RUBEN R. TAGASA,
Defendant.
x-----------------------------------------x

MEMORANDUM
(For the Plaintiff)

The undersigned counsel for the plaintiff unto this Honorable Court,
most respectfully submits this MEMORANDUM and avers:

PREFATORY STATEMENT

Malicious Prosecution is an action for damages


brought by one against another whom a criminal
prosecution, civil suit, or other legal proceeding has
been instituted maliciously and without probable
cause, after the termination of such prosecution, suit
or proceeding in favor of the defendant therein.[1] The
gist of the action is the putting of legal process in

1
Magbanua v Junsay, GR no. 132659, February 12, 2007

1
force, regularly, for the mere purpose of vexation or
injury.[2]

STATEMENT OF THE CASE

1. This is an action for Damages instituted by the Plaintiff


against the Respondent 18 February 2014. Defendant filed his
Answer with Counterclaim on 30 June 2014;
2. Respondent claimed that on 09 February 2013, he was surprised
to discover that the dike of his fishpond located in Nagbukel, San Isidro,
Isabela was forcibly opened. Consequently, the water of the fishpond was
drained and all the 14,000 pieces of cultured tilapia went into the drainage
canal and in the supplementary ditch where he saw plaintiff Dionisio
Millan and others fishing using electrical device. The cost of Tilapia is Php
200,000.00 more or less;
3. The plaintiff executed a counter- affidavit and alleged that they
did not commit the crime of Qualified Theft. They argued that the
respondent stated that the stock water of his fishpond was drained for
which reason the tilapia went out from the pond and swan to the drainage
canal and supplementary ditch. They argued that Qualified theft which is
punishable by Article 310 of the Revised Penal Code states that the taking
of the fish must be made from a fishpond or fishery and not outside the
fishpond or fishery;
4. In his Reply, the respondent claimed that the argument of the
plaintiff that the taking of the fish must be taken from the fishpond or
fishery to be liable of Qualified theft is a crooked interpretation of the law.
He added that their act of destroying the dike in order to catch the fish
outside the fishpond is a clear circumvention of the said law;
5. Such statements were opposed by plaintiff Dionisio Millan
particularly the part where respondent pinpointed the plaintiff as the
persons who destroyed the dike. In the sur-reply to rejoinder, respondent

2
Drilon v Court of Appeals, GR No. 107019, March 20, 1997

2
admitted that while it may be true that no one had seen plaintiff Dionisio
Millan to be the person who destroyed his dike, he said that it could safely
presumed that Dionisio Millan is the author of the same considering his
presence at the wee hour of the morning catching fish. Further, the act of
taking away a fish from a fishpond or fishery could be done in different
ways and while there is no way to identify that the fishes caught by the
plaintiff are his but the fact that the fishes that they caught in the waterway
are of such abnormal abundance, then it could be concluded that the same
came from his pond;
6. On 28 August 2013, the Office of the Provincial Prosecutor
issued a Resolution dismissing the complaint filed by the respondent
against the herein plaintiff. The dispositive portion of which states:

WHEREFORE, premises considered, it is hereby respectfully


recommended that the case against all the respondents be
DISMISSED for lack of probable cause.

7. On 20 September 2013, defendant filed an Urgent Motion for


Reconsideration, essentially reiterating his baseless and malicious
accusations, thus prolonging the agony and adding on the shame of
Dionicio and his family;
8. On 29 November 2013, the Office of the Provincial Prosecutor-
Ilagan City, Isabela issued it Order effectively exonerating Dionisio, et.al.,
the dispositive portion of which reads

WHEREFORE, in view of the foregoing, the Urgent Motion for


Reconsideration is hereby DENIED for lack of merit. The resolution
dated August 28, 2013, dismissing this instant complaint,
STANDS.

ARGUMENTS AND DISCUSSIONS

A right, though by itself legal because


recognized or granted by law as such,
may nevertheless become a source of
some illegality.

3
9. When a right is exercised in a manner which does not conform
with the norms enshrined in Article 19 of the New Civil Code and results
in damage to another, a legal wrong is thereby committed for which the
wrongdoer must be held responsible. As a consequence of the unfounded
and malicious accusations of respondent Ruben A. Tagasa, plaintiff
Dionicio Millan Sr. spent the amount of Fifty thousand (Php50,000.00) for
legal fees, representing actual damages;
10. The inaction of the defendant on, and his indifference to, the
plaintiffs plight, and his relentless accusations against plaintiff has
seriously shamed Dionicio and his family that his children and relatives all
avoided being seen in public with him as the unfounded allegations of
Ruben against Dionicio have become a source of family embarrassment
and dishonour;
11. Plaintiff has thus suffered great embarrassment, unparalleled
shame, sleepless nights, mental anguish and serious anxiety over the deep
humiliation cast upon him and his family, compounded by the fact that
Dionicio has always been a person of deep faith and devotion through his
membership in the Knights of Columbus, Parish Renewal Seminars and the
Couples for Christ, for which reason he should be awarded moral damages
of TWO HUNDRED FIFTY THOUSAND PESOS [Php250,000.00];
12. To serve as an example to others who might be minded to
commit similar wanton and unlawful acts to the lifetime detriment and
damage of persons similarly accused without basis, defendant should be
held accountable for exemplary damages of FIFTY THOUSAND PESOS
[Php50,000.00];
13. In order to protect his interests and rights and prompted by the
callousness of the defendant in pursuing baseless criminal action, plaintiff
was constrained to engage the services of counsel to whom he is bound to
pay attorneys fees in the amount of Php25,000.00, and the costs of suit;
14. We beg the indulgence of the Honorable Court to take a hard
look on the facts and circumstances that transpired on how this case came
into fore. Pertinent events that transpired regarding this case was hereby
repleaded as follows:

4
a. On 18 February 2013, Ruben filed an Affidavit of
Complaint[3] against Dionicio and eight (8) others, accusing the
latter of allegedly stealing an undetermined number of tilapia fish
from the Rubens fishpond estimated to cost Php200,000.00,
sometime on the night of 08 February 2013 ;

b. That in the same Affidavit of Complaint, Ruben also


accused Dionicio, et. al., of fishing allegedly using electrical
devices which is prohibited by law;

c. Based on the aforestated Affidavit of Complaint of


Ruben, a Criminal Complaint[4] was lodged by the Philippine
National Police of San Isidro, Isabela before the Office of the
Provincial Prosecutor in Santiago City against Dionicio, et. al.
accusing the latter of committing the crime of Qualified Theft,
defined and penalized under Article 310 of the Revised Penal
Code;

d. Fearing for his liberty and suffused with shame and


embarrassment for himself and his family, Dionicio had to secure
the assistance of a legal counsel to represent him and to assist him
prepare his Counter-Affidavit[5] sometime on March 2013, which
he submitted to the Office of the Provincial Prosecutor Santiago
City on 02 April 2013, thus Dionicio incurred attorneys fees of
Fifty thousand (Php50,000.00) pesos;

e. Defendant Ruben, however, was relentless in his


unfounded accusations against Dionicio, et. al., that the Ruben,
again on 02 May 2013, filed a Reply[6] to the Joint Counter-
Affidavit of Dionicio, et. al., thus forcing Dionicio to seek further
the services of a legal counsel to assist in the preparation of a
Rejoinder to Reply[7] on 29 May 2013, entailing the payment of
additional legal fees and adding on further embarrassment and
shame to Dionicio and his family;

3
Annex A
4
Annex B
5
Annex C
6
Annex D
7
Annex E

5
f. Again, Ruben filed a Sur Reply to Rejoinder to
Reply[8], in the process compounding the legal expenses of
Dionicio if only to rebut the baseless and malicious accusations of
Ruben, and to salvage whatever honor was left with him and his
family;

g. The barrage of accusations coming from Ruben


finally came to an end when on 28 August 2013, the Office of the
Provincial Prosecutor handed down its Resolution[9], the
dispositive portion of which reads

WHEREFORE, premises considered, it is hereby


respectfully recommended that the case against all the
respondents be DISMISSED for lack of probable cause.

h. On 20 September 2013, Ruben filed an Urgent


Motion for Reconsideration[10], essentially reiterating his baseless
and malicious accusations, thus prolonging the agony and adding
on the shame of Dionicio and his family;

i. Again, Dionicio had to seek the assistance of a legal


counsel in the preparation of his Comment[11] to the Motion for
Reconsideration filed by Ruben, thereby incurring additional
legal expenses in defense of himself and his family honor, casting
a heavy dent on his limited family finances;

j. Finally, deliverance came to Dionicio on 29 November


2013, when the Office of the Provincial Prosecutor Ilagan City,
Isabela issued its Order[12] effectively exonerating Dionicio, et. al.,
the dispositive portion of which reads

Wherefore, in view of the foregoing, the Urgent


Motion for Reconsideration is hereby DENIED for lack of
merit. The resolution dated August 28, 2013, dismissing
this instant complaint, STANDS.

8
Annex F
9
Annex G
10
Annex H
11
Annex I
12
Annex J; Emphasis supplied.

6
15. The elements of an abuse of right under Article 19 are the
following: (1) There is a legal right or duty; (2) which is exercised in bad
faith; (3) for the sole intent of prejudicing or injuring another;[13]
16. The Honorable Supreme Court said :
Malice or bad faith is at the core of said provision.
Good faith is presumed and he who alleges bad
faith has the duty to prove the same. Good faith
refers to the state of mind which is manifested by
the acts of the individual concerned. It consists of
the intention to abstain from taking an unconscious
and unscrupulous advantage of another. Bad faith
does not simply connote bad judgment or simple
negligence, dishonest purpose or some moral
obliquity and conscious doing of a wrong, a breach
of known duty due to some motives or interest or
ill-will that partakes of the nature of fraud. Malice
connotes ill-will or spite and speaks not in
response to duty. It implies an intention to do
ulterior and unjustifiable harm. Malice is bad faith
or bad motive.[14]
17. Article 20 of the New Civil Code speaks of the general sanction
for all other provisions of law which do not especially provide their own
sanction. Thus, anyone who, whether willfully or negligently in the
exercise of his legal right or duty, causes damage to another, shall
indemnify his or her victim for injuries suffered thereby;
18. Article 21 deals with acts contra bonus mores, and has the
following elements: 1) There is an act which is legal; 2) but which is
contrary to morals, good customs, public order, or public policy; 3) and it is
done with intent to injure. It presupposes loss or injury, material or
otherwise, which one may suffer as a result of such violation;[15]

13
Albenson Enterprises Corp. v. CA, 217 SCRA 16
14
Development Band of the Philippines v CA, 445 SCRA 500
15
Cogeo-Cubao Operators and Drivers Association v CA, 207 SCRA 343

7
PRAYER

WHEREFORE, premises considered, and after due notice and


hearing, it is respectfully prayed of this Honorable Court to render
judgment in favor of plaintiff, and ORDER defendant to PAY plaintiff:

1. Actual Damages in the amount of Fifty thousand


pesos [Php50,000.00];
2. Moral Damages in the amount of Two Hundred Fifty
Thousand pesos [Php250,000.00];
3. Exemplary Damages in the amount of Fifty thousand
pesos [Php50,000.00];
4. Attorneys fees in the amount of Twenty-Five
thousand pesos [Php25,000.00]; and
5. Litigation expenses in the amount of Twenty-Five
thousand pesos [Php25,000.00].

Other relief and remedy just and equitable under the premises are
also prayed for.

Santiago City, 4th December 2017.

THE LAW OFFICES OF DAMASEN & SUBIA


Unit 5, Mango Suites, Calao East, Santiago City
E-mail: lmdlawoffice@gmail.com
Mobile No.: 09178730405
Tel. No.: (078) 305-2392

By:

ATTY. LUCKY M. DAMASEN


Counsel for the Plaintiff
MCLE Compliance No. V-008089/06-04-15
PTR No.2050681/Santiago City/01-03-2017
IBP No. 1049534/Ilagan City, Isabela/01-03-2017
Roll No.37959/07-24-92

8
Do not print from this point!!

generally accepted principles of international law as


part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity with all
nations;

k. As explained in the scholarly discourse of, Dean Merlin M. Magallona,


eminent professor and authority in International Law, under the Universal Declaration
of Human Rights (UDHR), all human beings are born free and equal in dignity and
rights16, x x x [and have] the right to life, liberty and the security of person17;

l. The right to life is the clear substratum of all obligations created under
treaties in the international community;

m. This is further enlarged under the International Covenant on Civil and


Political Rights (ICCPR) which provides for the right to compensation in case of
unlawful arrest18 x x x [and] right to legal assistance in criminal prosecution19 x x x;

n. For the State, its core obligations under the Covenant include being
obliged to ensure that any person whose rights or freedomsare violated shall have
an effective remedy, notwithstanding that the violation has been committed by persons
acting in an official capacity20;

16
Article 1, UDHR, cited in Dean Merlin M. Magallona, Fundamentals of Public International Law. Quezon
City: C & E Publishing House, p. 260.
17
Article 3, UDHR, ibid.
18
Article 9.3, ICCPR, ibid., p. 263.
19
Article 14, 3(d), ICCPR, ibid.
20
Article 2.3(a), ICCPR, ibid., p. 265.

9
o. So zealous is the focus and scrutiny by the international community on the
aforestated mandate given to States to protect, uphold and respect these non-derogable
rights;

p. Article 19 of the Civil Code provides, Every person must, in the exercise
of his rights and in the performance of his duties, act with justice, give everyone his due
and observe honesty and good faith;

q. Article 21 of the Civil Code likewise provides, Any person who wilfully
causes loss or injury to another in a manner that is contrary to morals, good customs or
public policy shall compensate the latter for the damage;

r. The elements of an abuse of right under Article 19 of the Civil Code are
the following: (1) There is a legal right or duty; (2) which is exercised in bad faith; (3) for
the sole intent of prejudicing or injuring another x x x21;

s. In the case of Manuel v. People22, Article 21 has been explained by the


1947 Code Committee as having been written to fill the lacuna of the countless gaps
in the statutes, which leave so many victims of moral wrongs helpless, even though
they have actually suffered material and moral injury23;

t. Elucidating further on the import of Article 21 is the case of Albenson


Enterprises Corp. v. Court of Appeals24 which states that the provision deals with acts
contra bonus mores, and has the following elements: (1) There is an act which is legal; (2)
but which is contrary to morals, good customs, public order, or public policy; (3) and it
is done with intent to injure. It presupposes loss or injury, material or otherwise, which
one may suffer as a result of such violation25;

u. Under the Civil Code provisions cited, an act which causes injury to
another may be made the basis for an award of damages26;

N.B. See Dean Pinedas book, there is a case decided by the


Supreme Court where in an unfounded accusation of shoplifting,
MORAL DAMAGES was awarded to the plaintiff in an action for
damages filed against the store.

21
Albenson Enterprises Corp. v. Court of Appeals (217 SCRA 16).
22
476 SCRA 461.
23
Report of the Code Commission, p. 39; Ibid.; Emphasis supplied.
24
See: Note 17, supra.
25
Cogeo-Cubao Operators and Drivers Association v. Court of Appeals (207 SCRA 343).
26
See: Note 17, supra.

10
REPUBLIC OF THE PHILIPPINES }
SANTIAGO CITY }s.s.
x-----------------------------------------------x

AFFIDAVIT OF WITNESS

I, VERONICO C. GASPAR JR., minor, duly assisted by my parents VERONICO


P. GASPAR and JOSEPHINE C. GASPAR, both of legal age, married, Filipinos, and all
residents of Barangay La Paz, Saguday, Quirino, do state under oath that:

1. I am the same person executing this affidavit;

2. On 12 February 2013, at about 3:00 in the afternoon, while I was


having my classes at the University of La Salette High School
(ULSHS) campus, Malvar, Santiago City, I was called from our
classroom by Mr. Teddy Bangloy, ULSHS Prefect of Discipline;

11
3. Mr. Bangloy and Mr. Rosario Ragual then brought me inside one of the
offices at the ULSHS campus;

4. Once inside the office, pinapaamin at tinatakot ako ni Sir Ragual, at


pati si Sir Bangloy, na ako ang bumuntal kay Angelo Pablo (Mr.
Bangloy and Mr. Ragual coerced, forced and threatened me to admit
that I was the one who punched Angelo Pablo);

5. I refused to do what Mr. Bangloy and Mr. Ragual was forcing and
threatening me to do because hindi ko naman kaya si Pablo na
buntalin kase mas malaki sa akin (because it was physically
impossible for me to punch Pablo who is bigger than me);

6. I always feel nervous and afraid when going to school because of this
incident as both persons are my teachers;

7. I am executing this affidavit, assisted by my parents, to attest to the


truthfulness of the foregoing statements.

TO THE TRUTH OF THE FOREGOING, I have signed this Affidavit on


______________________________ at Santiago City, Philippines.

JOSEPHINE C. GASPAR
Affiant
I.D. No. ________________________
Valid until_______________________

SUBSCRIBED AND SWORN to before me this __________________ at Santiago


City, Philippines; Affiant exhibiting his identifying evidence as required by the Rules;
who signed the said instrument in my presence. I further certify that I have personally
examined the affiant and I am convinced that the same is his own free and voluntarily
act and deed.

Doc. No. ____


Page No. ____
Book No. 15
Series of 2014

12