REPUBLIC OF THE PHILIPPINESSANDIGANBA YAN

Quezon City

Fifth Division

CASE NO. SB-17-CRM-1161PEOPLE OF THEPHILIPPINES,

Plaintiff,FOR: Violation of Section 3(c) ofR.A. No. 3019 (Anti-Graft andCorrupt Practices Act, as amended)

- versus-

MANUEL NIEVES TAB ORA,Accused,

----------------a nd------------------ CASE NO. SB-17-CRM-1162

Plaintiff,

FOR: Violation of Section 7(d) ofR.A. No. 6713 (Code of Conductand Ethical Standards for PublicOfficials and Employees)

PEOPLE OF THEPHILIPPINES,

-versus- Present:LAGOS, J., Chairperson,MENDOZA-ARCEGA, andCORPUS-MANALAC, JJ.

MANUEL NIEVES TAB ORA,Acccused.

Promulgated:

x-----------------------------------------------------------------------------------------x

RESOLUTION

LAGOS, J.:

For the Court's consideration are accused Manuel N. Tabora's PartialMotion for Reconsideration of the Court's Decision in the above-captionedcases, filed through counsel on May 27, 2019, and the prosecution'sComment/Opposition thereto dated May 29, 2019. The accused in theDecision of May 17, 2019 was convicted in SB-17-CRM-1161 for

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violation of Section 3(c) of RA No. 3019 (Anti-Graft and Corrupt PracticesAct, as amended). In SB-17-CRM-1162 for violation of Section 7(d) of RANo. 6713 (Code of Conduct and Ethical Standards for Public Officials andEmployees), the case was ordered dismissed upon the Court'sdetermination that, "Following Sec. 11 [Penalties] of RA 6713, in relationto Sec. 9 [Penalties for Violation] of RA 3019, accused Tabora should onlyhave been prosecuted for violation of Sec. 3(c) under RA 3019 whichcarries a heavier penalty between the two statutes. Section 11 of RA 6713pertinently provides that, "illf the violation is punishable by a heavierpenalty under another law, he shall be prosecuted under the latter statute."The fine and suspension, including possible removal from office, carriesless weight or not heavier than the penalties imposable under Sec. 9 of RA3019, which provides: "SECTION 9. Penalties for violations. - (a) Anypublic officer of private person committing any of the unlawful acts oromissions enumerated in Sections 3, 4, 5 and 6 of this Act shall bepunished with imprisonment for not less than six years and one month normore than fifteen years, perpetual disqualification for public office, andconfiscation or forfeiture in favor of the government of any prohibitedinterest and unexplained wealth manifestly out of proportion to his salaryand other lawful income. In SB-17-CRM-1161, the accused was sentenced,inter alia, to "an indeterminate penalty of six (6) years and one (l) month,as minimum, up to eight (8) years, as maximum, imprisonment." It beingmore in keeping with the norm and judging by the tenor of his motion, theaccused's 'partial' motion for reconsideration is deemed addressed to hisconviction, although not so specified by movant.

As duly noted by the prosecution in its Comment/Opposition, theaccused's motion was "set for hearing on June 14, 2019 or more than ten(10) days from the date of its filing on May 27,2019" and, hence, "shouldbe denied in its entirety as it violates Section 5, Rule 15 of the Rules ofCourt," quoted as follows:

Section 5. Notice of Hearing - The notice of hearing shall beaddressed to all parties concerned, and shall specify the time and date ofhearing which must not be later than ten nO) days after the filing ofthe motion. (Emphasis in the original.)

As asserted by the prosecution, "The requirements of Motions underSections 41 and 5 of the Rules of Court is mandatory as it was expressed bythe words 'must not be later than ten (10) days', and the motion that does not

1Section 4 on the hearing of motions under Rule 15 of the Rules of Court reads in part: "Except formotions which the court may act upon without prejudicing the rights of the adverse party, every writtenmotion shall be set for hearing by the applicant." (1st par.)

1;

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comply with the requirements of the Rules of Court is a worthless piece ofpaper and deserves scant consideration. It is a fatal defect."

Accused-movant is not unaware of the explicit requirement under Sec.5, as shown in movant's Notice of Hearing, to wit:

G re e tin g s:

Please be informed that the foregoing Motion for Reconsiderationshall be set for hearing on 14 June 2019, Friday, at 8:30 a.m. The hearingwas set beyond the 10-day period required by Section 5, Rule 15 of the1997 of the Rules of Civil Procedure because of the non-availability ofthe undersigned counsel. (Undersocring supplied.)

As upheld by the Supreme Court in Mangali vs. Court of Appeal."being in full agreement with the Court of Appeals, " ... in the disposition ofjudicial controversies, reasonable and justifiable liberality in the applicationof procedural rules should be the guiding principle, where otherwisesubstantial justice would be jeopardized. Inadequacies and errors of formshould be overlooked when they would defeat rather than help the judge inarriving at a just and fair result as to the essential merits of any case. But allthese is not to say that the rules fixing periods within which certain acts mustbe done either by the parties or by the court come within the realm of theabove rules of liberality in adjective law. Public interest demands that therebe limits of time in the procedure laid down for the administration of justice,lest through inadvertence, negligence or indolence, not to speak of malice,suits may be unduly prolonged, thereby giving truth to that lamentablesituation of justice delayed, justice denied. In other words, when it comes tocompliance with time rules, the Court cannot afford unexcusable delay."

The Court may indeed dispense with the 10-day requirement and givemore leeway to movant as the interest of justice may dictate, but not basedon such a cavalier attitude exhibited by movant. By its tenor, the movant'sNotice of Hearing did not request, as is the usual tenor when asking for amotion to be set for hearing, but rather instructs the Court, albeit the Clerk ofthe Court, and demands that the subject motion "shall be set for hearing on14 June 2019, at 8:30 a.m." Worse, it assumes that merely based on such afeeble excuse as "unavailability of the undersigned counsel," that the Courtmust, therefore, automatically overlook the 10-day requirement without thebenefit of being informed of the real reason for, or cause of, such"unavailability" of counsel. The Court notes in particular that accused'scounsel is not a solo practitioner, but belongs or appears to be a member of

2 G.R. No. L-47296, August 21, 1980,99 seRA 236, 247; emphasis supplied.

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BELTRAN APOSTOL & ASSOCIATES LAW FIRM - the official counselof record in these cases. Did movant mean that no other lawyer in the officewas available for hearing to comply with the rules? In the first place, whatdid really make counsel/movant unavailable? As pointed out by theprosecution, due to such transgression of the rules, accused's motiondeserves scant consideration. Beyond such technicality, however, the Courthas decided to still consider the arguments raised by movant, in fairness tothe accused and in the interest of justice.

Accused-movant claims, "With all due respect, this Honorable Courtis implored to reconsider the defense of the accused as the same is also withfactual and legal basis." Yet, movant did not cite or mention any of thosealleged "factual and legal basis" which the Court may have overlooked orfailed to give due consideration of - as would necessitate a reconsiderationof its decision. The Court is not swayed by such a generic andunsubstantiated assertion.

According to accused-movant:

4. A close perusal of the assailed Decision shows that thisHonorable Court did not even consider the notarized Counter-Affidavit ofKrisjann Mapile (Exhibit "5,,)3 which categorically excluded the accusedfrom any complicity in his transaction with the private complainant.Pertinently,

"xxx xxx

3. The complainant STEVEN R. SHIELDKRET is maliciouslydragging the name of MANU EL TABOR (sic), who has nothing to dowhatsoever in the said Sale/Purchase Agreement;

3.1. STEVEN R. SHIELKRET was introduced to MANUEL TABORAby certain FfLEMON VILLASAN, a mineral trading consultant fromBarangay Bitas, Cabanatuan City, Nueva Ecija;

3.2 Accordingly, MANUEL TABORA only served as a onetimeconduit between me and STEVEN R. SHIELDKRET, no more [,] noless (underscoring supplied);

3.3 The Sale/Purchase Agreement entered into by and between me andSTEVEN R. SHIELDKRET clearly show that MANUEL TABORAhas ended his further participation to the transaction."

5. It bears stressing that since the Counter-Affidavit is anotarial document, it is admissible in evidence without further

3 In a footnote, accused-movant described Exhibit "5" as "Identified in open court by the Notary Public,Atty. Frank levi Codillo Ugsad, on 18 October 2018."

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proof of its due execution, is conclusive as to the truthfulness of itscontents, and has in its favour the presumption of regularity,"

6. Differently stated, said document deserves to be givenevidentiary weight because it constitutes prima facie evidence ofthe facts stated therein. 5

The prosecution in its Comment/Opposition contends that (i.) "thedefense failed to present Krisjan [or Krisjann] Mapile as their witness and itscounter-affidavit should not be considered as his testimony and because theprosecution was not given the opportunity to cross-examine its contentsduring the trial"; (ii.) citing Section 6, Rule VII of the 2018 Internal Rules ofthe Sandiganbayan that "[tjhe testimony of witnesses shall consist of a dulysubscribed written statements given to law enforcement or peace officers orthe affidavits or counter-affidavits submitted before the Office of theOmbudsman,xx.xx "(italics in the original), Mapile's counter-affidavit"should not be equated or treated as his testimony because he did not appearbefore the Honorable Court" (underscoring supplied); (iii.) "Krisjan [orKrisjann] Mapile is a private individual and he does not enjoy thepresumption of regularity as what the accused may seem to suggest," (iv.)that "[a]ssuming without admitting that the counter-affidavit has a probativevalue, his statements cannot cast even a scintilla of doubt to warrant theacquittal of the accused in this case because the statements in his counter-affidavit did not assail any of the elements of the crime," and (v.) that "thecounter-affidavit of Krisjan [or Krisjann] Mapile is irrelevant to the fact inissue because it failed to debunk or discredit the elements of the crime."

The Court finds the prosecution's arguments well-taken, paramount ofwhich is that the defense had deprived the prosecution of its right to cross-examine Krisjann Mapile. During trial, the defense was given all theopportunity to present Mapile as its witness, thus, bestow upon theprosecution its substantial right and opportunity to cross-examine him aspart of due process of law.

As asserted by movant in par. 5 above-quoted, "[i]t bears stressingthat since the Counter-Affidavit is a notarial document, it is admissible inevidence without further proof of its due execution, [and] is conclusive as tothe truthfulness of its contents, and has in its favour the presumption ofregularity," (underscoring supplied) citing China Banking Corporation vs.

4 Citing China Banking Corporation vs. Lagon, G.R. No. 160843, July 11, 2006,494 SCRA560, 567;underscoring supplied.5 Citing Isawa vs. Gangan, et al., G.R. No. 204169, September 11, 2013.

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Lagon, G.R. No. 160843, July 11, 2006, 494 SCRA 560, 567. It's a such aleap of faith. The full paragraph in the said case reads:

We have held in prior cases that generally, a notarized instrumentis admissible in evidence without further proof of its due execution and isconclusive as to the truthfulness of its contents, and has in its favour thepresumption of regularity. However, this presumption is not absoluteand may thus be rebutted by clear and convincing evidence,"(Underscoring supplied; citations omitted.)

Clearly, the accused's assertion is not entirely correct and misleadingsince it omitted an essential part of the Supreme Court's dictum. Rife withlegal complications, the testimony of the notary on the fact of notarizationcannot be considered as one in lieu of or substitute for affiant's directtestimony on the contents of his affidavit, which also, indubitably, is subjectto the prosecution's right to cross-examination. Such view now advanced bymovant was clearly debunked by the prosecution during trial. As noted in theCourt's Decision, the appearance in Court of the notary public, Atty. FrankLevi-Codillo-Ugsad, when called to testify was even abbreviated and cutshort, viz.:

The parties stipulated that the witness was the notary public whonotarized the Counter Affidavit of Krisjan Mapile dated March 19,2012,which the defense marked Exh. "5", and he can identify the said affidavitand his signature thereon. It appears on the face of the counter-affidavitthat it was stamped received by the Office of the Ombudsman on AprilApril 2, 2012 in connection with OMB-L-CI2-0008-A. The prosecutionmade a counter stipulation that "the witness has no personal knowledgeof the facts stated in the counter affidavit of Krisjan Mapile and thathe cannot testify on the veracity of the contents" thereof. With theforegoing, the open court testimony of Atty. Ugsad was ordered dispensedwith by the Court. 7

The notary did not vouch for the truthfulness of the contents ofMapile's affidavit, but exclusively to attest to the act of the notarizationthereof. Neither did the mere identification by the notary of his signaturethereon validate and give evidentiary value to the hearsay character of theallegations in the affidavit. If anything, the counter-affidavit, although not inproper Judicial Affidavit form as required under the rules of theSandiganbayan, may have been allowed by the Court as the Mapile's directtestimony, assuming he showed up in Court, but, of course, subject to cross-examination by the prosecution. Despite the scheduled hearing set forMapile's appearance in Court on October 18, 2018,8 the defense failed to

6 See Note 3.7 Decision, p. 20; emphasis supplied. see also Order dated October 18, 2018, Records, p. 462.8 Order dated September 20, 2018, Records, p. 453

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present him. During the said hearing, herein counsel for the accused instead"moved that she be given ten (10) days from today [October 18, 2018] tofile accused's Formal Offer of Evidence .... ,,9

Contrary to accused-movant's advocacy, the counter-affidavit ofMapile itself incriminates the accused in light of Mapile' s own admissionbased on his affidavit, that accused Tabora "served as a onetime conduitbetween me and STEVEN R. SHIELDKRET [private complainant], nomore[,] no less." (Emphasis supplied.) The gravamen of the charge againstthe accused in SB-17-CRM-1161 for violation of Section 3(c) of RA No.3019 (Anti-Graft and Corrupt Practices Act, as amended), based on theInformation, is as follows:

... accused MANUEL NIEVES TABORA, a high ranking publicofficer, being the Acting et' Officer-In-Charge (OIC) Administrator of theprovincial government of Nueva Vizcaya, and its Assistant ProvincialBudget Officer, in such acting capacity, committing the crime in relationto his office and taking advantage thereof, did then and there willfully,unlawfully and criminally request and receive for his personal benefit theamount of Two Hundred Fifty Thousand Pesos (Php250,OOO.OO),covered by Banco de Oro Check No. 0005302, from Steven R. Shieldkret,representative of International Minerals & Advising, Inc. (IMMAI) withoffice address at 45-C South Pacific Plaza Towers, Pacific Avenue,Taguig City, in consideration of his (Tabora's) promise and assurance ofassistance in securing or obtaining for IMMAI the required permits for itsore trading business, such as but not limited to Ore Transport Permitand/or Mineral Ore Export Permit, to the damage and detriment of theGovernment and the public interest. (Emphasis in the original;underscoring supplied.)

Violation of Section 3(c) consists of, among other things, when apublic officer, i.e., in this case accused Tabora, "requested or received thegift, present or other pecuniary or material benefit in consideration forthe help given or to be given."lo In this case, it is beyond doubt thataccused Tabora received from private complainant Php250,000.00, whichthe defense euphemistically called as "consultancy/handling fee." Maybe itshould also be called as "one-time conduit fee," following thecharacterization given by Mapile in his affidavit vis-a-vis Tabora'sinvolvement; the assertion that Tabora allegedly had no "further

9 Order dated October 18, 2018; Records,p. 462.10 The elements of Section 3(c) violation are asfollows:

(1) The offender is a public officer;(2) He has secured or obtained, or would secure or obtain, for a person any

government permit or license;(3) He directly or indirectly requested or received from said person any gift, present or

other pecuniary or material benefit for himself or for another; and(4) He requested or received the gift, present or other pecuniary or material benefit in

consideration for the help given or to be given. IQ (Decision, p. 23; citation omitted.)

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participation to the transaction," or to the Sale/Purchase Agreementinvolved, other than as alleged "conduit" per Mapile's affidavit, will noterase, but rather adds to Tabora's culpability. And Tabora sealed his fatewhen he received the P250,OOO.OO"consultancy/handling" or a.k.a. "one-time conduit" fee from private complainant. The same money was the'poisonous' fruit of Tabora' s illicit conduct, proscribed and penalized underthe Anti-Graft law.

WHEREFORE, premises considered, the accused's Partial Motionfor Reconsideration is DENIED for lack of merit.

SO ORDERED.

4~AGOSAssociate Justice

Chairperson

WE CONCUR:

MARIA~~~~~ijE.~@ZZAA-~ARCEGA

MARYANNE. ~US-MANALACASSOcire Justice