Republic of the Philippines

Department of Justice
National Prosecution Service
Office of the Provincial Prosecution
Province of Agusan del Norte
Hall of Justice, Butuan City
***

TERSO R. MONTANTE, NPS DOCKET NO.

XIII-
Complainant, 02-
INV-11H-00214
- versus - FOR:
HECTOR MORADA y GARVES, Grave Oral
Dafamation
Respondent,
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MOTION
FOR
RECONSIDERATION

COMPLAINANT, by the undersigned Law Office, most

respectfully MOVES for the reconsideration of the Resolution
of this Honorable Office, dated 27 October 2011, copy of
which was received on 11 November 2011.

In pursuance thereto, complainant avers THAT:

I
MONTANTE vs. MORADA
Motion for Reconsideration
Page 2 of 15
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THE FINDINGS

1.1. The facts, culled from the respective affidavits of

the parties and their witnesses as correctly narrated by this

Honorable Investigating Prosecutor are reproduced below,
thus –
“Acting on the complaint, this office issued a
subpoena directing the respondent to submit his counter-
affidavit which he complied.

x x x

The complaint alleged that on July 4, 2011, at more

or less, 6:00 o’clock in the morning at a waiting shed in
front of the house of one Cecilio Alatrace at Jaliobong,
Kitcharao, Agusan del Norte, respondent, together with his
friends were having a drinking spree. At about the same
time, private complainant Terso R. Montante who is the
Barangay Chairman of Barangay Jaliobong passed by the
said waiting shed on his way to the house of Dominador
Montante. When he was about a few meters away, he
heard respondent uttered in a loud voice some defamatory
words. To clarify what he heard, he (private complainant)
went back to where respondent and his friends were and it
was then he clearly heard respondent saying in the visayan
dialect, “MA APIL APILON SA ESKWELAHAN NGA WALAY
LABOR, KAPITAN NGA WALAY BOOT, KAWATAN”, which in
English more or less, means, “Meddlesome in school
matters even if not part of it. An immature barangay
captain, a thief”. These utterances were allegedly heard by
some people nearby, namely: Ferdinand Loren and
Bernaldo Dalubatan, who were allegedly at the Barangay
Outpost. Lilian B. Beltran also testified that while she was
walking near the house of Mrs. Milen Ruiz which is beside
the house of Cecelio Alatraca, she heard respondent
murmured the alleged defamatory words.
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Motion for Reconsideration
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Respondent for his part assail the allegations of

private complainant and his witnesses for being false and a
way to get back at respondent for testifying against private
complainant in an estafa case the latter filed against
Cecelio Alatraca. Respondent pointed out that the
allegations of private complainant and his witnesses are
incredible and even inconsistent. First, he contends that
the Barangay outpost where witness Loren was, is about
100 meters from the subject waiting shed where
respondent allegedly uttered the defamatory words. Also,
the house of Dominador Montante where private
complainant was when he first heard respondent uttered
the subject defamatory words is more or less 70 meters as
certified by the president of Purok 2, Barangay Jaliobong
and by Barangay Kagawad Joel Vida of Barangay Jaliobong.
With respect to witness Lilian B. Beltran, her location at the
time she allegedly heard respondent murmur the subject
defamatory words is about 20 meters. Thus, it is quite
impossible for her to hear a mere murmur.

Additionally, respondent finds no truth in the

testimony of Bernaldo Dalubatan that he was fixing the
nylon string of a tent near the bamboo fence of Cecelio
Alatraca because at that time, there was no more tent in
the said area. Furtheremore, Wenceslao Morada, who was
allegedly one of the companions of respondent at the time
of the incident was already in Manila since June 26, 2011
and up to the time of the incident on July 4,2011. Finally,
respondent and his witnesses questioned the delay in the
filing of this case, if indeed he was aggrieved...” 1
[Emphasis Ours].

1.2. Notwithstanding the foregoing findings of material

facts, this Honorable Office dismissed the complaint on the

submission that the person defamed was not clearly
established since his name was not even mentioned, thus –

“In defamation cases, it is important that the person

defamed must be clearly identified. In the instant case, a
close scrutiny of the alleged defamatory utterances and
the circumstances at the time the alleged defamatory
remarks were uttered would show that respondent did not
mention private respondent’s name. Private complainant
1
See Resolution, dated 27 October 2011, pp 1-2.
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Motion for Reconsideration
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here was just speculating that it might have been directed

to him being the barangay captain himself…”2 [Emphasis
Ours].

1.3. In addition, this Honorable Office faulted

complainant for his failure to proffer an explanation why
respondent would make such defamatory remarks against
him, thus –

“Nonetheless, private complainant did not also give

any explanation as to the reason why respondent would
make such remarks, if he indeed made it. To indict a person
on a mere speculation would be unfair and unjust.

WHEREFORE, premises considered, it is respectfully

recommended that the instant complaint be dismissed for
lack of probable cause…”3 [Emphasis Ours].

II
PLEA FOR
RECONSIDERATION

2.1. FIRST : With all due respect, this Honorable Office

may have overlooked the fact that the instant case is not
subject to Preliminary Investigation and may have erred in
requiring respondent to file his Counter-Affidavit.

2.1a. Based on the recitals of the Resolution,

it appears that this Honorable Office required

respondent to file his Counter-Affidavit4 by way of
controverting the allegations in the complaint.

2
Ibid, page 2.
3
Ibid, pp. 2-3.
4
Ibid, page 1.
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Motion for Reconsideration
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2.1b. For ready reference, the pertinent

provisions of the Revised Rules on Criminal
Procedure is heretofore reproduced, thus –

“Section 1. Preliminary Investigation defined.

When required. – Preliminary investigation is an
inquiry or proceeding to determine whether
there is sufficient ground to engender a well-
founded belief that a crime has been
committed and the respondent is probably
guilty thereof, and should be held for trial.

Except as provided in section 7 of this Rule, a

preliminary investigation is required to be
conducted before the filing of a complaint or
information for an offense where the penalty
prescribed by law is at least four (4) years, two
(2) months and one (1) day without regard to
the fine …”5 [Emphasis Ours].

2.1c. In the instant case, respondent is

charged of Grave Oral Defamation defined and
penalized under the Revised Penal Code as
follows, thus –

“Section 358. Slander. – Oral defamation shall

be punished by arresto mayor in its maximum
period to prision correctional in its minimum
period if it is of a serious and insulting nature;
otherwise the penalty shall be arrresto menor
or a fine not exceeding 200 pesos …”6
[Emphasis Ours].

5
See Revised Rules on Criminal Procedure, Rule 113, Section 1.
6
See Revised Penal Code, Article 358.
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Motion for Reconsideration
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2.1d. The highest possible penalty for the

crime of Grave Oral Defamation to which

respondent is charged is Prision Correctional which
carries a period duration of six (6) months and one
(1) day to two (2) years and four (4) months.

2.1e. Clearly then, this Honorable Office may

have overlooked that the instant case for Grave

Oral Defamation does not require a Preliminary
Investigation. A fortiori, the sufficiency to warrant
respondent’s indictment in court shall be
determined on the allegations of the complaint.

2.2. SECOND : The identity of the complainant as the

person defamed is clearly borne out by the records of the
case.

2.2a. Records show that both complainant and

the respondent are residents of the same

barangay, that is, Barangay Jaliobong, Kitcharao,
Agusan del Norte. Being contenders in the position
of Punong Barangay during the last 2010
Barangay Elections where respondent lost to the
complainant, the latter is presumed to know the
former as the incumbent Punong Barangay of
Jaliobong, Kitcharao, Agusan del Norte.
MONTANTE vs. MORADA
Motion for Reconsideration
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2.2b. It must be noted that the incident

happened in the early morning of 4 July 2011. At
that time, there was no other Barangay Captain
present other than that of complainant who
happened to pass by respondent and his friends
having a drinking spree. Respondent did not
simply whisper the defamatory words, he did that
in a loud voice that caught the attention of many
persons within the vicinity.

2.2c. Obviously then, when respondent made

the defamatory remarks immediately after

complainant passed by, he was referring to no
other person than complainant himself. It is puerile
to argue that respondent was making reference to
another person who was not present.
2.2d. Be that as it may, several witnesses

now come to the open that indeed, respondent

uttered loudly, or to put it bluntly, shouted the
defamatory statements against complainant. Their
sworn statements are reproduced as follows, thus
–

“I, JULIETO BAGUHIN AVILA, Filipino, of legal

age, married and a resident of Purok 3, Brgy.
Jaliobong, Kitcharao, Agusan del Norte, after
having been sworn to in accordance with law,
hereby depose and say THAT:

1. Sometime on July 4, 2011 at about

6:00 o’clock in the morning, more or less, I was
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Motion for Reconsideration
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at the BPLK outpost located at Purok 2, Brgy.

Jaliobong, Kitcharao, Agusan del Norte;

2. I then saw Terso Montante, our

Brgy. Captain, passed by backriding the single
motorcycle driven by Joel Dizon;

3. All of a sudden, I heard a shout

saying: “Kapitan nga way buot! Si Terso way
buot! Kawatan! Way buot!”

4. When I looked at the direction

where the shout emanated, I saw Hector
Morada who was still shouting, repeating the
words he previously shouted;

5. I am executing this Affidavit in

attestation to the foregoing declarations and
for whatever legal purpose this may serve
best…”7 [Under-scoring Ours].

x x x

I, VENANCIO BANTILAN DAO, Filipino, of legal

age, married and a resident of Purok 3, Brgy.
Jaliobong, Kitcharao, Agusan del Norte, after
having been sworn to in accordance with law,
hereby depose and say THAT:

1. Sometime on July 4, 2011 at about

6:00 o’clock in the morning, more or less, I was
near the fence of the house of Daisy Abubacar
watching the removal of the temporary
shelters near the cockpit;

2. To my surprise, I suddenly heard

shouts saying: “Kapitan nga way buot! Si Terso
way buot! Kawatan! Way buot!”

3. When I looked at the direction

where the shout emanated, I saw Hector
Morada shouting, repeating the words he
previously shouted, obviously directed at our
Brgy. Captain Terso Montante;

7
See Affidavit of Julieto Baguhin Avila, dated 15 November 2011,
copy of which is hereto attached and marked as ANNEX “1”.
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Motion for Reconsideration
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4. I am executing this Affidavit in

attestation to the foregoing declarations and
for whatever legal purpose this may serve
best…”8 [Under-scoring Ours].

2.3. THIRD : Even respondent, in his Counter-Affidavit,

did not deny the defamatory statements he uttered.

2.3a. In his Counter-Affidavit, respondent did

not DENY having made the defamatory statements

against the complainant. He simply kept mum
about them. Culled from the findings of facts,
respondent simply cast doubt on the veracity of
the defamatory statements by assailing the
credibility of the complainant and his witnesses.
2.3b. In other words, the nature of the
defenses interposed by respondent is one of denial
which, under our existing jurisprudence, cannot
prevail over the positive assertions of complainant
and his witnesses. There being positive
identification of the perpetrator, motive becomes
inconsequential.

2.3c. As narrated in complainant’s sworn

statement and those of his witnesses, their
positive identifications pertain not only to the
identity of respondent, but likewise on his act of
uttering the defamatory words. These consist of

8
See Affidavit of Venancio Bantilan Dao, dated 15 November
2011, copy of which is hereto attached and marked as ANNEX “2”.
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Motion for Reconsideration
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direct evidence to the commission of the crime, or,

at the very least, may even be appreciated as
circumstantial evidence for the same criminal acts
imputed against the respondent. When calibrated
with the other circumstances attendant thereto –
the time of the incident, the fact that complainant
is the only Punong Barangay present and that the
utterances were made after he passed by
respondent and his drinking buddies – would
reasonably lead to a fair and reasonable
conclusion that respondent is the possible author
of the defamatory words to the exclusion of all
other persons, and, for this reason, must be
indicted in court and held for trial.

2.3d. The ratiocination in People vs. Gallarde

vis-à-vis the types of positive identification is
adopted, thus –
“ … Positive identification pertains essentially
to proof of identity and not per se to that of
being an eyewitness to the very act of
commission of the crime. There are two types
of positive identification. A witness may
identify a suspect or accused in a criminal case
as the perpetrator of the crime as an
eyewitness to the very act of the commission
of the crime. This constitutes direct evidence.
There may, however, be instances where,
although a witness may not have actually seen
the very act of commission of a crime, he may
still be able to positively identify a suspect or
accused as the perpetrator of a crime as for
instance when the latter is the person or one of
the persons last seen with the victim
immediately before and right after the
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Motion for Reconsideration
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commission of the crime. This is the second

type of positive identification, which forms part
of circumstantial evidence, which, when taken
together with other pieces of evidence
constituting an unbroken chain, leads to only
fair and reasonable conclusion, which is that
the accused is the author of the crime to the
exclusion of all others. If the actual
eyewitnesses are the only ones allowed to
possibly positively identify a suspect or
accused to the exclusion of others, then
nobody can ever be convicted unless there is
an eyewitness, because it is basic and
elementary that there can be no conviction
until and unless an accused is positively
identified. Such a proposition is absolutely
absurd, because it is settled that direct
evidence of the commission of a crime is not
the only matrix wherefrom a trial court may
draw its conclusion and finding of guilt. If resort
to circumstantial evidence would not be
allowed to prove identity of the accused on the
absence of direct evidence, then felons would
go free and the community would be denied
proper protection…”9 [Emphasis Ours].

2.3e. The issue on the credibility of witnesses

is a matter of defense best left for the trial court to

appreciate during the presentation of evidence.

III
PRAYER

3.1. WHEREFORE, PREMISES CONSIDERED, it is most

respectfully prayed of this Honorable Office that its

Resolution, dated 27 October 2011, be RECONSIDERED and
SET ASIDE. In its lieu, a new Resolution be issued finding

9
See People of the Philippines vs. Gallarde, G.R. No. 133025,
dated 17 February 2000.
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Motion for Reconsideration
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probable cause against HECTOR MORADA y GARVES for the

crime of Grave Oral Defamation.

3.2. Complainant further prays that an Information

shall forthwith be issued charging respondent for the crime

of Grave Oral Defamation before the Municipal Trial Court of
Kitcharao, Agusan del Norte.

3.3. Other reliefs deemed just and equitable under the

circums-tances are likewise prayed for.

MOST RESPECTFULLY SUBMITTED.

Butuan City, Philippines.
16 November 2011.

HENRY C. FILOTEO
Counsel for the Complainant
Roll No. 44949
PTR No. 0248111, 1/03/11, Butuan City
IBP Lifetime No. 06979
MCLE Compliance No. III-0001453
RESERVA•FILOTEO LAW OFFICE
Rm. 205, Onghoc Bldg.
Montilla Boulevard, Butuan City
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V
NOTICE OF HEARING

THE DOCKET CLERK

Office of the Provincial Prosecution
Hall of Justice, Butuan City

HECTOR G. MORADA
Respondent
Jaliobong, Kitcharao, Agusan del Norte
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Gentlemen:

Greetings!

Please take notice that on Friday, 19 November 2011, at

2:00 o’clock in the afternoon or thereabouts, or as soon as
this may be calendared for hearing, the undersigned party
will present the foregoing Motion for the kind consideration
and approval of this Honorable Office.

HENRY C.
FILOTEO

VI
COPY FURNISHED

1. HECTOR MORADA y GARVES

Respondent
Purok 3, Brgy. Jaliobong
Kitcharao, Agusan del Norte
Registry Receipt No. : _____________________
By : _____________________

VII
EXPLANATION

Copies of the foregoing Motion was furnished to respondent

via registered mail due to distance. This is in compliance
with Section 11, Rule 13 of the Revised Rules of Civil
Procedure.

HENRY C.
FILOTEO
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Motion for Reconsideration
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