Republic of the Philippines

11TH Judicial Region

1st MUNICIPAL CIRCUIT TRIAL COURT
Carmen- Sto. Tomas- Braulio E. Dujali
Davao del Norte

THE PEOPLE OF THE CRIMINAL CASE NO. 12, 572-21,

PHILIPPINES 12, 573-21and 12, 574-21
Plaintiff,

-versus- For: ALTERING BOUNDARIES,

MALICIOUS MISCHIEF,
VIVIAN LORONA, UNJUST VEXATION.
EDGAR LORONA,
ALEXIS SIMBAJON,
HERSHIEL LAPIZ,
ANECITA LAPIZ,
EFREN FLORES,
NILDA SAGANDOY,
HARLON LAPIZ,
And ALBERTO HOPIA
Accused,

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

JOINT COUNTER-AFFIDAVIT

WE, VIVIAN LORONA, EDGAR LORONA, ALEXIS SIMBAJON,

HERSHIEL LAPIZ, ANECITA LAPIZ, EFREN FLORES, NILDA
SAGANDOY, HARLON LAPIZ, And ALBERTO HOPIA, Filipinos, all of
legal age and residents of Purok Yakal, Brgy. Talomo, Sto. Tomas, Davao del
Norte, after having been duly sworn to in accordance with law, hereby depose and
say THAT:

PREFATORY STATEMENT

"The owner or lawful possessor of a thing has the right to exclude any person from
the enjoyment and disposal thereof. For this purpose, he may use such force as
may be reasonably necessary to repel or prevent an actual or threatened unlawful
physical invasion or usurpation of his property."

Additionally, "In no case may possession be acquired through force or intimidation

as long as there is a possessor who objects thereto. He who believes that he has an
action or right to deprive another of the holding of a thing, must involve the aid of
the competent court, if the holder should refuse to deliver the thing."

Counter Affidavit Page 1 of 12

 TIMELINESS OF THE FILING OF THE COUNTER-AFFIDAVIT

Accused received on October 27, 2021 an Order from the Honorable Court
directing them submit their counter-affidavit within ten (10) days from receipt.
Thus, they have until November 6, 2021 within which to submit the same. This
Counter-Affidavit is timely filed.

ALLEGATIONS ON THE COMPLAINT

A. That private complainants are the registered owners of a parcel of land

located at Talomo, Sto. Tomas, Davao del Norte consisting of 59, 900
square meters known as Lot 14-B and Lot 14-C, and as described in TCT
No. T-142-2018018134;

B. That they hired the services of Geodetic Engineer to conduct relocation

survey of the above-described property;

C. They put barbed wire along the boundary;

D. The accused by means of violence, threat and intimidation prevented the

employees of Geodetic Engineer from conducting Relocation Survey;

E. The accused motivated by hatred, destroyed the barbed wire fences and
removed the muniments installed boundary by the employees of geodetic
engineer;

F. The accused removed the tarpaulin bearing signage “No Trespassing”

DEFENSES

Accused, as rightful owners of

the land subject of this case,
has the right to exclude any
person from the enjoyment and
disposal thereof

Counter Affidavit Page 2 of 12

 1. While the private complainants have Certificates of Title over the subject
land registered under their name, ownership thereof is claimed by the
accused and others actually possessing the same;

2. It is a hornbook doctrine that registering a piece of land under the Torrens

System does not create or vest title, because registration is not a mode of
acquiring ownership. A certificate of title is merely an evidence of
ownership or title over the particular property described therein1;

3. There is a pending dispute on the subject land and ownership thereof is yet
to be determined with finality by a competent tribunal;

4. Accused, in their claim of ownership over the subject land, aver the
following factual precedence:

a. Sometime in 1970, Dominador Galla, the father of the predecessors-

in-interest (Nympha Galla Dolores and Nelson Galla) of the accused,
who wanted to augment his income as rope-maker, saw himself a vast
tract of an unoccupied and uncultivated land. Imbued with keen desire
to own a piece of land, he entered this unoccupied land and cleared it.
Hereto attached and marked as Annex “1,” the Tax Receipt paid by
Nympha Galla Dolores;

b. At the beginning, he entered into a portion of this land (Lot 14-C) and
the adjacent lot (Lot 14-D) which were then covered by second
growth forest, shrubs, rattan and tall grasses with no indication that it
was owned by a private person, nor was there a sign of occupation or
cultivation, to gather pieces of woods for firewood which he used to
sell at the nearby barangay. When he acquired equipment for sawing,
he cut and sawed some trees for lumber and as materials for making a
small house;

c. In 1971, he started to make a clearing over a portion of this land. After

the lapse of several months, or sometime in 1972, Dominador Galla
began to plant therein coconuts, bananas, other fruit trees and seasonal
crops such as palay and corn. His son, Nelson Galla, helped and
assisted his father in tilling a small portion of the Lot 14-C land a
portion of Lot 14-D until came a time when he himself matured and
begot his own family that his father Dominador relinquished the
exclusive possession and cultivation of the portion (Lot 14-C) tilled
by Nelson Galla; mentioned

d. Upon the installation of Corazaon C. Aquino as President of the

Republic of the Philippines in 1986, her government’s agrarian reform
program called and encouraged landless farmers to occupy and
develop abandoned and uncultivated lands suitable for agriculture. In
1
Heirs of Teodoro de la Cruz v. Court of Appeals, 358 Phil. 652, October 21, 1998 as cited in Heirs
of Ermac vs. Heirs of Ermac G.R. No. 149679 May 30, 2003

Counter Affidavit Page 3 of 12

 response to this program, many landless farmers from other
municipalities/ provinces who wanted to own parcels of land arrived
in Barangay Talomo and in nearby barrios and entered and developed
the available uncultivated pieces of lands. The herein accused and
their respective predecessors-in-interest, joined these farmers and
entered and developed the abandoned and uncultivated pieces of lands
available in the area among which are the parcels of lands subject of
the case;

e. While the smaller portion of Lot 14 was already then developed by

Dominador Galla and his family, the bigger portion thereof was
undeveloped and covered with second growth forest and into which
portion the herein accused took possession upon the encouragement of
Dominador Galla;

f. As such, Dominador Galla, succeeded by his children, Nympha

Dolores and Nelson Galla, occupied and cultivated what was later
identified as Lot 14-D, Csd-1 1-000238, consisting of an area of 30,
989 sq. meters. This occupation and cultivation had started in 1971;

g. Accused Edgardo Lorona, Vivian Lorona and others occupied and

cultivated what was later identified as Lot 14-B, Csd-1 1-000238-1
containing an area of 59,997 square meters since 1986;

h. Accused Hershiel Lapiz, Anecita Lapiz, among others, occupied and

tilled a portion of land which was later identified as Lot 14-A, Csd-1
1-000238 with an area of 75,527 square meters. As later transpired,
this Lot 14-A was further subdivided into Lot 493-A, Csd-11-010357-
D with an area of 30,217 square meters and Lot 4983-B, Csd-11-
010357-D;

i. Accused Alfredo Simbajon, among others, occupied and tilled the

portion which was tilled by Nelson Galla (as relinquished by his
father Dominador Galla) and what was later identified as Lot 14-C,
Csd-1 1-000238-D since 1986. Their area consisted of 59, 970 square
meters;

j. Upon the accused’s unrelenting and enduring efforts, the subject

property was fully developed despite the challenges of it being
constantly flooded until the irrigation project of the National Irrigation
Authority (NIA) operated in the place sometime in 1987 which paved
the way for the easier cultivation of the land;

k. That the accused have occupied and tilled the subject land since 1971
(for Dominador Galla and his family) and 1986 (for the rest of the
accused) as has been testified to by long-time residents of the
barangay, who are disinterested parties in this case. They have
executed Affidavits and testified that most of the herein accused have
been in occupation and possession of the subject land since 1986.
Counter Affidavit Page 4 of 12
 Furthermore, and more importantly, said disinterested residents
narrate and testify that they have never seen the private complainants,
their predecessors-in-interest or any of their relatives, occupying and
tilling the subject land. A copy of ROLANDO PRUDENTE’S
Affidavit dated November 25, 2003 is hereto attached as Annex “2”.
Mr. Prudente who is already sixty (60) years old in 2003 is a farmer
engaged in labor work (hornal) and have worked in the barangay
since 1970;

l. Likewise attached as Annex “3” to “3-A” hereof is an Affidavit

executed by one DATU TUBELLA M. MARCOS. He is a member of
the indigenous people of the Mandaya Tribe, and was fifty-one (51)
years old in 2003, being born on February 27, 1952. He is the tribal
chieftain in the barangay. He had been residing therefrom since birth,
his tribe being the original and first occupants in the place before the
non-tribal group (the Visayans and Luzonians) arrived thereat;

m. Attached also as Annex “4” and “4-A” is an Affidavit executed by

one FELICISIMO O. BANGCAYLAN. He is a Chairman of the
Barangay Agrarian Reform Committee (BARC) and a former
Barangay Captain in Talomo, Sto. Tomas. Due to his position, he has
personal knowledge as to the actual occupants and cultivators of the
landholdings in the barangay;

n. This occupation and cultivation of the accused was further confirmed

in the Investigation Report filed by LMO III VIRGINIA ALMORA
after she conducted an on-site and actual investigation pursuant to the
Order of the Regional Executive Director of the DENR XI. Copy of
this Investigation Report dated March 21, 2005 is hereto attached as
Annex “5” to “5-J”;

o. Aside from the conduct of the ocular inspection, a geodetic engineer

was likewise assigned to execute a verification survey to determine
the actual occupants, if any, and the size of their respective
occupations. After the verification survey, the result indicated the
following occupants with the size of their occupation, to wit:

A.JOEDEN AND
HERZEL 7,335 SQ.M. (plus Lot 19 of the
LAPIZ Sketch Plan with an area of
1,735 sqm.
B. ALFREDO SIMBAJON 8,206 sqm.
C. SANTIAGO DANLAPIN 8,907 sqm.
D. MANUEL SONAJO 6,404 sqm.
E. SEGUNDINA ADOLFO 18,766 sqm.
F. EDGARDO LORONA 11,294 sqm. (plus portion of Lot
16 in the Sketch Plan)
G. LORENZO ABIN 24,557 sqm. (including a portion
of Lot 14-C and Lot 14-B)
H. NUMERIANO ALBA
Counter Affidavit Page 5 of 12
 p. Hereto attached is the Certification from the office of the Punong
Barangay that the accused are the actual occupants of the land subject
of this case as Annex “6” to “6-E”;

5. To reiterate, as a matter of defense, accused DENY the accusations against

them. They have been in possession of the land where the alleged incidents
happened. During their open, continuous, exclusive and notorious
possession of the then public land in 1970’s and 1980’s up to the present, the
accused acquired their respective vested rights over the land. Hence, the
conflict as to the rightful lawful ownership of the land in question among the
parties is not yet settled with finality;

6. Accused, as lawful possessors of the land, are merely protecting their

property and insisting on their right to exclude any person from the
enjoyment thereof. They are in possession of the land in concepto de dueno
and are the actual occupants who fervently believe that they are owners
thereof;

7. Article 429 of the Civil Code of the Philippines, also known as the Doctrine
of Self-Help, provides that:

"The owner or lawful possessor of a thing has the right to exclude any
person from the enjoyment and disposal thereof. For this purpose, he
may use such force as may be reasonably necessary to repel or
prevent an actual or threatened unlawful physical invasion or
usurpation of his property."

8. In connection with this, the lawful possessors, such as the herein accused,
are authorized to use force that is reasonably necessary to exclude others
from unlawfully intruding into such property. Otherwise put, the lawful
possessors may use reasonable force to counter the force employed by an
aggressor who usurps or deprives the former of subject property;

9. Granting without conceding that the accused are not the owners of the land
in question and merely possessors thereof, private complainants’ action in
fencing the property in question and disturbing the lawful possession of the
accused is unlawful. Private complainants should not take into their own
hands the administration of justice. Article 536 of the Civil Code is
instructive and thus provides, "In no case may possession be acquired
through force or intimidation as long as there is a possessor who objects
thereto. He who believes that he has an action or right to deprive another of
the holding of a thing, must involve the aid of the competent court, if the
holder should refuse to deliver the thing."

10.Accused likewise DENY that they pulled out the posts and took away the
barbed wires used in fencing the land on the alleged date. The truth being
after about an hour of the incident, it was the men hired by the private

Counter Affidavit Page 6 of 12

 complainants who came back to the area and retrieve the materials used in
fencing;

It is mandatory that Cases requiring

referral to the Lupon for conciliation
under the provisions of Presidential
Decree No. 1508 where there is no
showing of compliance with such
requirement, shall be dismissed
without prejudice, and may be revived
only after such requirement shall have
been complied with.

11.Accused maintain that the instant case was prematurely filed and thus giving
the private complainants no cause of action in filing the same because the
required referral to the Lupon for conciliation was not met and certification
to file action from the latter was not attached;

12.As admitted by the private complainants in open court that they are residents
of Barangay Talomo, Sto. Tomas, Davao del Norte, the same Barangay
where the accused are residents of, the referral to Barangay Conciliation is
mandatory in the instant case;

13.Specifically, 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 (LGC) of 1991 mandates that ALL DISPUTES
subject to Barangay conciliation is a pre-condition before filing a complaint
in court or any government offices;

14.Pertinent portions of Chapter VII, Title I, Book III of LGC read as follows:

Sec. 408. Subject Matter for Amicable Settlement; Exception Thereto. —

The lupon of each barangay shall have authority to bring together the
parties actually residing in the same city or municipality for amicable
settlement of all disputes except:

(a) Where one party is the government or any subdivision or

instrumentality thereof;

(b) Where one party is a public officer or employee, and the dispute
relates to the performance of his official functions;
Counter Affidavit Page 7 of 12
 (c) Offenses punishable by imprisonment exceeding one (1) year or a fine
exceeding Five thousand pesos (P5,000.00);

(d) Offenses where there is no private offended party;

(e) Where the dispute involves real properties located in different cities
or municipalities unless the parties thereto agree to submit their
differences to amicable settlement by an appropriate lupon;

(f) Disputes involving parties who actually reside in barangays of

different cities or municipalities, except where such barangay units adjoin
each other and the parties thereto agree to submit their differences to
amicable settlement by appropriate lupon;

(g) Such other classes of disputes which the President may determine in
the interest of justice or upon the recommendation of the Secretary of
Justice.

The court in which non-criminal cases not falling within the authority of
the lupon under this Code are filed may, at anytime before trial, motu
proprio refer the case to the lupon concerned for amicable settlement.

15.Parties to the herein case fall squarely within the ambit of the above-quoted
provision;

16.By applying the aforesaid provision, it is only after a failed settlement in the
barangay and after the issuance of a Certificate to File Action that the
complainants can pursue their complaint at the higher office (Section 18,
Rules on Summary Procedure);

17.In Uy vs. Hon. Contreras2 case, the Supreme Court reminds:

“Before closing these cases, this Court wishes to emphasize the vital role
which the revised katarungang pambarangay law plays in the delivery of
justice at the barangay level, in promoting peace, stability, and progress
therein, and in effectively preventing or reducing expensive and wearisome
litigation. Parties to disputes cognizable by the lupon should, with
sincerity, exhaust the remedies provided by that law, government
prosecutors should exercise due diligence in ascertaining compliance
with it, and trial courts should not hesitate to impose the appropriate
sanctions for non-compliance thereof.” (emphasis provided)
2
G.R. No. 111416, September 26, 1994

Counter Affidavit Page 8 of 12

 18.Also, in Pergrina vs. Panis3, the Supreme Court also stated:

“Thus, Morata vs. Go, 125 SCRA 444 (1983), and Vda. de Borromeo
vs. Pogoy, 126 SCRA 217 (1983) have held that P.D. No. 1508 makes
the conciliation process at the Barangay level a condition precedent
for the filing of a complaint in Court. Non-compliance with that
condition precedent could affect the sufficiency of the plaintiff's cause
of action and make his complaint vulnerable to dismissal on the
ground of lack of cause of action or prematurity. The condition is
analogous to exhaustion of administrative remedies, or the lack of
earnest efforts to compromise suits between family members, lacking
which the case can be dismissed.” (emphasis supplied)

ELEMENTS OF MALICIOUS MISCHIEF

ARE NOT PRESENT

19.Article 327 and 328 of the

Revised Penal Code:

ART. 327. Who are liable for malicious mischief.-Any person who shall
deliberately cause to the property of another any damage not falling within the
terms of the next preceding chapter shall be guilty of malicious mischief.
It has always been regarded of the essence of this felony that the offender
should have not only the general intention to carry out the felonious act (a
feature common to all willful crimes) but that he should act under the impulse
of a specific desire to inflict to another

Art. 328. Special cases of malicious mischief. — Any person who shall cause
damage to obstruct the performance of public functions, or using any
poisonous or corrosive substance; or spreading any infection or contagion
among cattle; or who cause damage to the property of the National Museum or
National Library, or to any archive or registry, waterworks, road, promenade,
or any other thing used in common by the public, shall be punished:

1. By prision correccional in its minimum and medium periods, if the value of

the damage caused exceeds 1,000 pesos;

Xxxxxxxxx

20.As alleged in the complaint without any evidence, the value of damage was not
supported by evidence. In fact, the two witnesses did not have the personal
knowledge of the facts and circumstances that it was the accused who destroyed
the property of the private complainants;

3
133 SCRA 72, 75 [1984].

Counter Affidavit Page 9 of 12

 21.What the witnesses testified is that when they arrived at the area, the accused
prevented them from conducting relocation survey. There was no evidence that
the accused destroyed the barbed wire;

THE ELEMENTS OF ALTERATION OF

BOUNDARIES ARE NOT PRESENT

22. T h e C r i m e o f
shall alter the boundary marks or monuments of towns, provinces or estates, or
any other marks intended to designate the boundaries of the same (Article 313,
Revised Penal Code);

23. From the allegations in the complaint, private complainants averred that they
already have the title. Hence, it is presumed that they also have determined the
metes and bounds of the land. Granting arguendo that they have to conduct
relocation survey, such survey is not yet approved by the Bureau of Lands. If the
actual occupants would object, the removal thereof would not constitute
Alteration of Boundaries;

24. Truth of the matter was, there was no removal of “muhon” because they did not
start conducting the relocation survey. The respondents just prevented them to
enter the said property, they being the actual occupants;

Act No. 2711 especially ARTICLE IV provides:

PRIVATE LAND SURVEYS AND SURVEYORS

Section 1858. Private Land Surveys. - The Bureau of Lands may, upon
application therefor, make private land surveys, for which a reasonable
charge shall be made.

Private land surveys may also be made by private land surveyors, duly
qualified as hereinafter provided; but no plan of each survey, whether it be
original or subdivision, shall be admitted in land registration proceedings
until approved by the Director of Lands.

Section 1859. Procedure Incident to Making of Survey Notice to Adjoining

Owners. - The surveyors employed to make surveys for registration purposes,
or to prepare maps and plats of property in connection therewith, shall give
due notice in advance to the adjoining owners whose addresses are known, of
the data and hour when they should present themselves on the property for
the purpose of making such objections to the boundaries of the properties to
be surveyed as they consider necessary for the protection of their rights.

Surveyors shall report all objections made by adjoining property owners and
occupants or claimants of any portion of the lands at the time of the survey
and demarcation, giving a proper description of the boundaries claimed by
such owners, occupants or claimants.

Counter Affidavit Page 10 of 12

 xxxx

Section 1862. Regulations Relative to Private Surveyors. - Private land

surveyors employed in making a survey hereinabove contemplated shall be
subject to the regulations of the Bureau of Lands in respect to such surveys
and shall execute the same in accordance with current instructions relative
thereto as issued by the Director of Lands. Promptly upon contemplating their
work, it shall be their duty to send their original field notes, computations,
reports, survey maps, and plats of the property in question to the Bureau of
Lands, for verification and approval.

THE ELEMENTS OF UNJUST VEXATION

ARE NOT PRESENT

25.In Renato Baleros Jr. v People, the Supreme Court defined unjust vexation
as any human conduct, without violence, that unjustly annoys an innocent
person. The test is “whether the offender’s act causes annoyance, irritation,
torment, distress or disturbance to the mind of the person to whom it is
directed.4” Thus, unjust vexation may exist without inflicting any physical or
material harm, without any compulsion or restraint, without the physical
presence of the offended party at the time the crime was being committed;5

26.Based on the above parameters, the elements of unjust vexation are: (1) there
is a human conduct that unjustly annoys or irritates another person; (2) such
human conduct was not attended with violence; (3) such human conduct
caused annoyance, irritation, torment, distress or disturbance to the mind of
the person to whom it is directed; and (4) the offender acted with criminal
intent;

27.The fourth element is absent in the instant case. There was no malice on the
part of the accused for, as lawful possessors of the land, they are merely
protecting their property and insisting on their right to exclude any person
from the enjoyment thereof. They are in possession of the land in concepto
de dueno and are the actual occupants who vehemently believe that they are
owners thereof. Their presence in the area should not be considered as the
cause of the annoyance and disturbance of the private complainants. In other
words, the accused were acting in good faith in their actions.

CONCLUSION

4
Baleros vs People, G.R. 138033, 22 February 2006
5
Maderazo vs People, G.R. 165065, 26 September 2006

Counter Affidavit Page 11 of 12

 28.At the outset, it is clearly shown from the allegations of both the contending
parties that the present complaints arose out of land conflict wherein lawful
ownership thereof is yet to be determined with finality by a competent
tribunal. Without awaiting such final determination, private complainants
are in haste to take possession of the land in question and constructed the
barbed wire fence on the contested land on December 29, 2020 which gave
rise to the filing of these criminal complaints;

29.Considering that the land conflict between the private complainants and the
accused has not yet been resolved, private complainants prematurely took
over the physical possession of the land in question and built barbed wire
fence on the boundaries of the same. Accused, being in actual possession of
the land, have the right to prevent the construction of the alleged fence and
merely exercised their right to protect the newly planted palay in the area
when they pulled out the fence caused to be constructed by complainant,
under the doctrine of “damnun absque injuria” and doctrine of “self help”
recognized under Article 429 of the New Civil Code of the Philippines;

PRAYER

WHEREFORE, premises considered, it is respectfully prayed before this

Honorable Court to DISMISS the case for lack of cause of action.

Other reliefs equitable under the premises are likewise prayed for.

Counter Affidavit Page 12 of 12