ANSWER

COMES NOW , the respondent assisted by counsel, and unto this

Honorable Court respectfully avers:

PREFATORY STATEMENT

Justness and sincerity as Officials and employees

shall remain true to the people at all times. They
must act with justness and sincerity and shall not
discriminate against anyone, especially the poor and
the underprivileged. They shall at all times respect
the rights of others, and shall refrain from doing
acts contrary to law, good morals, good customs,
public policy, public order, public safety and public
interest. They shall not dispense or extend undue
favors on account of their office to their relatives,
whether by consanguinity or affinity.

THE PARTIES

The petitioner, ALFREDO DE VEYRA, is the incumbent barangay

captain of Visayan Village, Tagum City. As Barangay Captain, he is
the Chairman of Lupong Tagapamayapa.

The Respondent, Josefina Daguing-Peras is the President of ADECOR

Landing Occupants Neighborhood Association, (ALONA) Inc. Hereto
attached as Annex “1” and the General Information Sheet for the
year 2018 which is hereto attached and marked as Annex “2”;

ALLEGATIONS IN THE PETITION

1. The Petitioner has filed a “Petition to Cite Respondent for

Indirect Contempt”, dated October 2, 2018.

Indirect contempt vs josefina peras 1

 2. The said complaint prays that Respondent be cited for INDIRECT
CONTEMPT for refusal or willful failure to appear before the Office
of the Barangay Captain which indicated that respondent has no
respect upon the person in authority. If the acts of the respondent
be allowed, the Barangay Court cannot exercise his authority under
the law and therefore meaningless in the performance of his duty;

3. That the basis of the Petitioner in citing the respondent for

Indirect Contempt is Section 515 of the Local Government Code
giving sanction for any party or witness for refusal or willful failure
to appear.

EVIDENCE OF THE PETITIONER

1. Complaint – alleged that there was refusal of the respondent

to appear before the barangay;

2. Barangay Blotter- contained the incident of which the

respondent allegedly displayed arrogance while the messenger
delivered the summons;

3. Notices, Orders and Summons- were signed by Rogelio

Sanchez, Secretary of the Barangay. Those were not signed by
the Barangay Chairman himself;

4. Proceedings during the Mediation and Conciliation- most were

signed by the Barangay Secretary, and others were signed by
the Lupong Tagapamayapa members.

ALLEGATIONS OF THE RESPONDENT

Indirect contempt vs josefina peras 2

 1. The root cause of the Petition for Complaint is the land where
the respondent is establishing her residence;

2. The ALONA, Inc. is the applicant and the actual occupants of

the subject land when it was covered by CARP.

3. The subject land with TCT No. T- 27525 of the land registry
of Tagum City is where the ALONA, Inc. members and officers
are currently establishing their residence. Hence, the subject
property is private and not public land;

4. In fact, the subject property has a pending case before the

Office of the DAR Secretary for failure of the DAR to issue
CLOA despite the Certificate of Land Deposit issued to the
owner of the land;

5. On August 20, 2018, the ALONA, Inc through its president

requested the Office of the Barangay to call the attentions of
the non-member occupants of ALONA, Inc. for possible
amicable settlement. Hereto attached and marked as Annex
“3”, the letter to the barangay.

6. On the same day, Alfredo De Veyra, barangay captain made

his answer that it is not within the jurisdiction of the barangay
to summon the non-member occupants. Hereto attached and
marked as Annex “4”;

7. On August 30, 2018, the Office of the Punong Barangay issued

Notice of Conference requiring the appearance of Gilda
Mahinay (the undersigned counsel) and the respondent to
appear before the Punong Barangay on September 4, 2018, for
the crime of swindling/ estafa. The Notice was signed by

Indirect contempt vs josefina peras 3

 Rogelio Sanchez, Barangay Secretary. Hereto attached and
marked as Annex “5”;

8. On September 4, 2018, Rogelio Sanchez signed the Summons

bearing the Barangay Case No. 250-2018 for Swindling/ Estafa
requiring again the undersigned counsel and the respondent to
appear on September 11, 2018. Hereto attached and marked
as Annex “6”.

9. On September 11, 2018, Rogelio Sanchez signed a Notice of

Hearing for Barangay Case No. 213-2018 for Swindling/Estafa
against the respondent to appear on September 18, 2018.
Hereto attached and marked as Annex “7”.

10. On September 19, 2018, Rogelio Sanchez issued a Notice of

hearing on September 21, 2018 for Barangay Case No. 213-
2018 against the respondent. Hereto attached and marked as
Annex “8”.

11. On September 21, 2018, Rogelio Sanchez signed a Notice of

Conciliation Proceedings on September 26, 2018. Hereto
attached and marked as Annex “9”;

12. On September 26, 2018, Lenyin M. Pagay signed a Notice of

Conciliation Proceedings on September 28, 2018. Hereto
attached and marked as Annex “10”;

13. It can be gleaned in Annex 3 thereof that all names in the

letter are the same persons who filed the complaint for estafa
against the respondent and the undersigned counsel.

14. On October 8, 2018, the respondent through the undersigned

counsel sent a letter to the Office of the Punong Barangay
requesting that the Office of the Barangay shall refrain from
issuing summons and notices due to the fact that the issue is

Indirect contempt vs josefina peras 4

 about the association. Hereto attached and marked as Annex
“11”;

AFFIRMATIVE DEFENSES

The Verification and

Certification of Non-forum
Shopping is defective

In the verification and certification against forum shopping

executed by the Petitioner, it is said he is the Plaintiff in the
above-entitled case. But since the certification and
verification is contained in another sheet, the case that the
petitioner refers to is undeterminable whether or not it refers
to the Indirect Contempt against the respondent. Moreover, in
the 4th paragraph of the certification and verification, it
contains about the institution of any criminal complaint for
Violation of Batas Pambansa Blg. 22.

In all other cases, charges for indirect contempt shall be

commenced by a verified petition with supporting particulars
and certified true copies of documents or papers involved
therein, and upon full compliance with the requirements for
filing initiatory pleadings for civil actions in the court
concerned.

There is no refusal or
willful failure to appear
that would constitute
indirect contempt

"Willful" is defined, as one governed by will without yielding

to reason or without regard to reason.

Indirect contempt vs josefina peras 5

 “Refusal” is defined as the act of one who has, by law, a right
and power of having or doing something of advantage, and
declines it. Also, the declination of a request or demand, or
the omission to comply with some requirement of law, as the
result of a positive intention to disobey.

It can be noted that the there was no refusal nor willful

failure to appear. Refusal was not committed because the
notices and summons were received by the respondent or her
representatives. The respondent admitted she failed to
appear but the failure is not willful.

The respondents had a knowledge that complainants of the

barangay case were the same and identical persons who are
named respondents for unlawful detainer case filed by the
association. Hence, the issues are intra-corporate
controversies which would be properly lodged before the
Securities and Exchange Commission (SEC). The Katarungang
Pambarangay Law is very explicit when it provides:

“Only natural persons or individuals shall be parties either

as complainants or respondents in all disputes which may
be brought to the Lupon for amicable settlement”

Since the respondent is the President of the Association, she is

not within the jurisdiction of the barangay, therefore, the
refusal and willful failure to appear would not be applicable.
Besides, granting arguendo that the case did not arise from
the intra-corporate controversies, estafa is punishable by
more than one year or a fine of more than Php 5,000.00.

Under Republic Act 10951 Otherwise Known as “The Revised

Penal Code”, as Amended, it provides:

Indirect contempt vs josefina peras 6

 “Art. 315. Swindling (estafa).— Any person who shall defraud another
by any of the means mentioned hereinbelow shall be punished by:

“1st. The penalty of prisión correccional in its maximum period

to prisión mayor in its minimum period, if the amount of the fraud is
over Two million four hundred thousand pesos (₱2,400,000) but does
not exceed Four million four hundred thousand pesos (₱4,400,000),
and if such amount exceeds the latter sum, the penalty provided in
this paragraph shall be imposed in its maximum period, adding one
year for each additional Two million pesos (₱2,000,000); but the total
penalty which may be imposed shall not exceed twenty years. In such
cases, and in connection with the accessory penalties which may be
imposed and for the purpose of the other provisions of this Code, the
penalty shall be termed prisión mayor or reclusion temporal, as the
case may be.
“2nd. The penalty of prisión correccional in its minimum and medium
periods, if the amount of the fraud is over One million two hundred
thousand pesos (₱1,200,000) but does not exceed Two million four
hundred thousand pesos (₱2,400,000).
xxxx
“Any person who shall defraud another by means of false pretenses or
fraudulent acts as defined in paragraph 2(d) hereof shall be punished
by:
“1st The penalty of reclusion temporal in its maximum period, if the
amount of fraud is over Four million four hundred thousand pesos
(₱4,400,000) but does not exceed Eight million eight hundred
thousand pesos (₱8,800,000). If the amount exceeds the latter, the
penalty shall be reclusion perpetua.
“2nd. The penalty of reclusion temporal in its minimum and medium
periods, if the amount of the fraud is over Two million four hundred
thousand pesos (₱2,400,000) but does not exceed Four million four
hundred thousand pesos (₱4,400,000).

xxxx
All disputes are subject to Barangay conciliation pursuant to
the Revised Katarungang Pambarangay Law [formerly P. D.
1508, repealed and now replaced by Secs. 399-422, Chapter
VII, Title I, Book III, and Sec. 515, Title I, Book IV, R.A. 7160,
otherwise known as the Local Government Code of 1991], and
prior recourse thereto is a pre-condition before filing a

Indirect contempt vs josefina peras 7

 complaint in court or any government offices, except in the
following disputes:
xxx
[4] Any complaint by or against corporations,
partnerships or juridical entities, since only individuals
shall be parties to Barangay conciliation proceedings
either as complainants or respondents [Sec. 1, Rule VI,
Katarungang Pambarangay Rules];

[6] Offenses for which the law prescribes a maximum

penalty of imprisonment exceeding one [1] year or a
fine of over five thousand pesos (P5,000.00);

[10] Where the dispute arises from the Comprehensive

Agrarian Reform Law (CARL) [Secs. 46 & 47, R. A. 6657];

Therefore, the Office of Lupong Tagapamayapa does not have

jurisdiction to cite the respondent for indirect contempt
because it within the exceptions to its jurisdiction.

But granting arguendo, the respondent is within the

jurisdiction of the Katarungang Pambarangay law and the
offense is also within the barangay jurisdiction, still there is
no refusal nor willful failure because there was a letter
addressed to the barangay captain which hereto attached as
Annex “3”, the gist of the letter states:
“My client, ADECOR Landing Occupants Neighborhood Association
(ALONA), Inc. represented herein by its President, Josefina Daguing-
Peras would like to take this opportunity to inform you that the
Association is registered with the Securities and Exchange Commission
(SEC) last April 2010. Hereto attached the Certificate of Registration
as Annex “A”. It submitted its General Information Sheet this 2018 .
Hereto attached and marked as Annex “B”, the 2018 General
Information Sheet.

This is to inform you further that the ALONA, Inc. is the petitioner for
CARP coverage of Transfer Certificate of Title No. 27525 of the land

Indirect contempt vs josefina peras 8

 registry of Tagum City. This is where the ALONA, Inc. members and
officers are currently establishing its residence.

Just lately, there are few of its occupants, not even members of the
association who pry into the operation of its association. Worst, they
are filing numerous cases against the associations before your office.
In return, numerous summons were addressed to the president of the
association.

The Revised Katarungang Pambarangay Law under R. A. 7160,

otherwise known as the Local Government Code of 1991, effective on
January 1, 1992 and which repealed P. D. 1508, introduced substantial
changes not only in the authority granted to the Lupong
Tagapamayapa but also in the procedure to be observed in the
settlement of disputes within the authority of the Lupon. It provides:

I. All disputes are subject to Barangay conciliation pursuant to the

Revised Katarungang Pambarangay Law [formerly P. D. 1508,
repealed and now replaced by Secs. 399-422, Chapter VII, Title I,
Book III, and Sec. 515, Title I, Book IV, R.A. 7160, otherwise known as
the Local Government Code of 1991], and prior recourse thereto is a
pre-condition before filing a complaint in court or any government
offices, except in the following disputes:
xxxxx
[4] Any complaint by or against corporations, partnerships or
juridical entities, since only individuals shall be parties to
Barangay conciliation proceedings either as complainants or
respondents [Sec. 1, Rule VI, Katarungang Pambarangay Rules];
Xxxxxxx

[6] Offenses for which the law prescribes a maximum penalty of

imprisonment exceeding one [1] year or a fine of over five
thousand pesos (P5,000.00);
xxxx
[10] Where the dispute arises from the Comprehensive Agrarian
Reform Law (CARL) [Secs. 46 & 47, R. A. 6657];

Furthermore, the property occupied by the ALONA, Inc. is a private

property of which the CARP coverage is still pending before the Office
of the DAR Secretary, Quezon City. Hence, it is not a public land nor a
patrimonial property of the Local Government Unit.

Lately, the group of Rojo, et al filed a case of estafa against the

President of the Association which is beyond the jurisdiction of the

Indirect contempt vs josefina peras 9

 Lupong Tagapamayapa to conciliate. Under RA 10951, the following
are the penalty for estafa.

“Art. 315. Swindling (estafa).— Any person who shall defraud another
by any of the means mentioned hereinbelow shall be punished by:
“1st. The penalty of prisión correccional in its maximum period
to prisión mayor in its minimum period, if the amount of the fraud is
over Two million four hundred thousand pesos (₱2,400,000) but does
not exceed Four million four hundred thousand pesos (₱4,400,000),
and if such amount exceeds the latter sum, the penalty provided in
this paragraph shall be imposed in its maximum period, adding one
year for each additional Two million pesos (₱2,000,000); but the total
penalty which may be imposed shall not exceed twenty years. In such
cases, and in connection with the accessory penalties which may be
imposed and for the purpose of the other provisions of this Code, the
penalty shall be termed prisión mayor or reclusion temporal, as the
case may be.
“2nd. The penalty of prisión correccional in its minimum and medium
periods, if the amount of the fraud is over One million two hundred
thousand pesos (₱1,200,000) but does not exceed Two million four
hundred thousand pesos (₱2,400,000).
“3rd. The penalty of arresto mayor in its maximum period to prisión
correccional in its minimum period, if such amount is over Forty
thousand pesos (₱40,000) but does not exceed One million two
hundred thousand pesos (₱1,200,000).

It is in this light that the undersigned is requesting your good office to

please refrain from entertaining the claims of the opposing parties
especially if the issues involve the peaceful possession of the
Association. While we appreciate your concern of being deeply
involved in the activities concerning your constituents, we would
greatly appreciate it if the barangay officials would remain neutral in
solving cases within your jurisdiction”.

APPLICABLE LAWS AND JURISPRUDENCE

RULE 71, SECTION 3 OF THE

RULES OF COURT

Sec. 3. Indirect contempt to be punished after charge and hearing.-

After a charge in writing has been filed, and an opportunity given to

Indirect contempt vs josefina peras 10

the respondent to comment thereon within such period as may be
fixed by the court and to be heard by himself or counsel, a person
guilty of any of the following acts may be punished for indirect
contempt:
(a) Misbehavior of an officer of a court in the performance of his
official duties or in his official transactions;
(b) Disobedience of or resistance to a lawful writ, process,
order, or judgment of a court, including the act of a person who,
after being dispossessed or ejected from any real property by the
judgment or process of any court of competent jurisdiction, enters
or attempts or induces another to enter into or upon such real
property, for the purpose of executing acts of ownership or
possession, or in any manner disturbs the possession given to the
person adjudged to be entitled thereto;
(c) Any abuse of or any unlawful interference with the processes
or proceedings of a court not constituting direct contempt under
section 1 of this Rule;
(d) Any improper conduct tending, directly or indirectly, to
impede, obstruct, or degrade the administration of justice;
(e) Assuming to be an attorney or an officer of a court, and
acting as such without authority;
(f)Failure to obey a subpoena duly served;
(g) The rescue, or attempted rescue, of a person or property in
the custody of an officer by virtue of an order or process of a court
held by him.

In all other cases, charges for indirect contempt shall be

commenced by a verified petition with supporting particulars and
certified true copies of documents or papers involved therein,
and upon full compliance with the requirements for filing
initiatory pleadings for civil actions in the court concerned. If the
contempt charges arose out of or are related to a principal action
pending in the court, the petition for contempt shall allege that
fact but said petition shall be docketed, heard and decided
separately, unless the court in its discretion orders the
consolidation of the contempt charge and the principal action for
joint hearing and decision. (n)

Indirect contempt vs josefina peras 11

LOCAL GOVERNMENT CODE OF
1991

Section 515. Refusal or Failure of Any Party or Witness to Appear

before the Lupon or Pangkat.
- Refusal or willful failure of any party or witness to appear
before the lupon or pangkat in compliance with a summons
issued pursuant to the provisions on the Katarungang
Pambarangay under Chapter 7, Title III of this Code may be
punished by the city or municipal court as for indirect contempt
of court (up to 1 month imprisonment)upon application filed
therewith by the lupon chairman, the pangkat chairman, or by
any of the contending parties. Such refusal or willful failure to
appear shall be reflected in the records of the lupon secretary or
in the minutes of the pangkat secretary and shall bar the
complainant who fails to appear, from seeking judicial recourse
for the same cause of action, and the respondent who refuses to
appear, from filing any counterclaim arising out of, or
necessarily connected with the complaint.

Section 8(a), Rule VI of the

Katarungang Pambarangay Rules

SECTION 8. Failure to appear. –

a. Sanctions The complaint may be dismissed when complainant,
after due notice, refuses or willfully fails to appear without
justifiable reason on the date set for mediation, conciliation or
arbitration. Such dismissal ordered by the Punong
Barangay/Pangkat Chairman after giving the complainant an
opportunity to explain his non-appearance shall be certified to
by the Lupon or Pangkat Secretary as the case may be, and shall
bar the complainant from seeking judicial recourse for the same
cause of action as that dismissed. Upon a similar failure of the
respondent to appear, any counterclaim he has made that arises
from or is necessarily connected with complainant's action, may
be dismissed. Such dismissal, ordered by the Punong
Barangay/Pangkat Chairman after giving the respondent an
opportunity to explain his nonappearance shall be certified to by
the Lupon or Pangkat Secretary, as the case may be, and shall

Indirect contempt vs josefina peras 12

 bar the respondent from filing such counterclaim in court or any
government office for adjudication. Further, in all cases where
the respondent fails to appear at the mediation proceedings
before the Punong Baran gay, it is mandatory for the latter to
constitute the Pangkat pursuant to Section I ( c ), Rule 111
hereof, but the respondent's refusal or willful failure to appear
without justifiable reason before the Pangkat, as determined by
the latter after notice and hearing, shall be a sufficient basis for
the issuance of a certification for filing complainant's cause of
action in court or with the proper government agency or

Rule VI, Section 7 of the

Katarungang Pambarangay Rules

SECTION 7. Failure to appear.-

xxxx
Upon a similar failure of the respondent to appear, any
counterclaim he has made that arises from or is necessarily
connected with complainant's action, may be dismissed. Such
dismissal, as certified to by the Lupon or Pangkat Secretary, as
the case may be, shall bar the respondent from filing such
counterclaim in court; and it shall likewise be a sufficient basis
for the issuance of a certification for filing complainant's cause
of action in court or with the proper government agency or
office.

In addition, such willful failure or refusal to appear may subject

the recalcitrant party or witness to punishment as for contempt
of court, i.e., by a fine not exceeding one hundred pesos
(P100.00) or imprisonment of not more than one (1) month or
both.

Thus it is very clear from the Rules that the willful refusal or failure
to appear on the part of respondent is sufficient basis for the
complainant present to be given a certification to file action. The
issuance of a certification to file action means that the complainant

Indirect contempt vs josefina peras 13

may already bring his case to the court or other government office
for adjudication.

Section 4[b] of PD No. 1508

It likewise provides that if the Punong Barangay fails in his

mediation efforts within fifteen [15] days from the first meeting of
the parties, he shall forthwith set the date for the constitution of
the Pangkat. However, such referral to the Pangkat is mandatory
only in those cases where both parties have submitted themselves
to the Lupon for conciliation and conciliation has failed.

In instances where one party fails to appear for no justifiable

reason, convening the Pangkat as a necessary second step will serve
no useful purpose. It will accomplish nothing in view of a party's
unwillingness, as reflected in his unjustified absence, to settle the
dispute outside the regular courts. In that case, the only feasible
alternative for the Lupon is to issue the certification allowing
complainant to bring the controversy to court.

CONCLUSION

While refusal or willful failure to appear before the Lupong

Tagapamayapa constitutes Indirect Contempt, such action
of the barangay should be in a manner where just and
equity prevail. The Punong Barangay should not be onion-
skin as to take the failure of the respondent to appear as
personal grievance against the barangay officials.

The respondent owes respect to the Lupong Tagapamayapa

but the forum should not be used to coerce the person to
appear even if it has no jurisdiction over the person of the
respondent and no jurisdiction over the subject matter.

Public office is a public trust. It must be discharged by its

holder not for his own personal gain but for the benefit of
the public for whom he holds it in trust. By demanding
accountability and service with responsibility, integrity,
loyalty, efficiency, patriotism and justice.

Indirect contempt vs josefina peras 14

 PRAYER

WHEREFORE, it is most respectfully prayed to this Honorable Court

to DISMISS the instant petition for lack of cause of action and
insufficiency of evidence.

Other reliefs just and equitable under the premises are likewise
prayed for.

RESPECTFULLY SUBMITTED. 12 October 2018, Davao City (for Tagum

City).

JOSEFINA DAGUING-PERAS
Respondent

Assisted by:

ATTY. GILDA S. MAHINAY

Counsel for the Respondent
187 Dominica St. Solariega, Puan, Talomo,Davao City
PTR No. 2366867/June 25, 2018
IBP No. 043007/ May 17,2018
Roll No. 70474
MCLE EXEMPTED

VERIFICATION

I, JOSEFINA DAGUING-PERAS, of legal age and the president of

ALONA, Inc., after having sworn to in accordance with law do
hereby depose and say:

Indirect contempt vs josefina peras 15

That I am the respondent of the above-entitled case; That as such
I have caused the preparation and filing of the foregoing answer;
That I have read the foregoing pleading and attest to the truth of
the allegations therein of our own personal knowledge and on the
basis of authentic records.

IN WITNESS WHEREOF, I have hereunto set my hand this ___th day

of October, 2018 at Davao City, Philippines.

JOSEFINA DAGUING-PERAS
Respondent

SUBSCRIBED AND SWORN to before me this 11th day of October 2018 at

Davao City, Philippines. I HEREBY CERTIFY, that I personally examined the
affiant and I am satisfied that she has read and understood the contents of the
Affidavit and that she executed the same freely and voluntarily.

ATTY. GILDA S. MAHINAY

Notary Public
My Commission expires on December 2019
PTR No. 2366867/June 25, 2018
IBP No. 043007/ May 17,2018
Roll No. 70474
MCLE EXEMPTED

Doc. No. ______;

Page No. ______;
Book No. ______;
Series of 2018

Indirect contempt vs josefina peras 16