Republic of the Philippines

)
City of Cebu
) s.c.
REPLY TO CAPS AND PESS JOINT
COUNTER-AFFIDAVIT
I, DOMINGO, Filipino, of legal age, married and a
resident of Abellana, Cebu City, after having been duly sworn
to in accordance with law hereby depose and state, thus:
1. On April 12, 2013, I, through counsel, received a
copy of the Joint Counter-Affidavit of Cap and Pes, the
respondents of the case Qualified Theft I filed for and in
behalf of my sister Paulina before the Office of the City
Prosecutor of Tacloban, on February 20, 2013;
2. In response to the counter-affidavit of the
respondents, I would like to point out relevant matters, to
wit:
2.1. Paulina is the owner of the agricultural land
designated as Lot No. 004 as her share of the
inheritance from our late father;
2.2. Since the partition sometime in 1970, Paulina
exercised acts of ownership such as paying
taxes thereon as evidenced by Tax Declaration
No. 08-19-0015-00050;
2.3. With that fact, in 2002, Paulina offered me two
(2) hectares of her coconut land as a
compensation for administering her properties
but I declined the same;
2.4. Upon showing interest of having a farm land,
Paulina, through me, sold to Theresa, my
daughter, the two (2) hectares of coconut land
originally offered to me for a consideration of
One Hundred Thousand Pesos (P100,000.00);
however, no Deed of Sale was executed as
it was agreed that Theresa should make a
survey first to determine the boundaries
of the 2-hectare coconut land which the
latter never did;
2.5. Since the sale of the property until 2010, my
daughter appointed me to administer and
manage the 2-hectare coconut land she

acquired from Paulina. Consequently, I have

been cultivating the 2-hectare land for my
daughter;
2.6. As an administrator thereof, I caused the
determination of the boundaries of the 2hectare coconut land since the property is still
unsegregated and unregistered;
2.7. In 2010, however, my daughter, Theresa,
started claiming that the property she
purchased from Paulina Garces was five (5)
hectares and not two (2) hectares only, and
sent Jacinto to the location of the property and
instructed my farmworkers to occupy and work
on the 5-hectare coconut land for and in
Theresas behalf;
2.8. To put an end to this growing conflict among
relatives, Paulina executed a Deed of Sale in
favor of Theresa for the purpose of establishing
the fact that only 2 hectares was sold to her and
not 5 hectares, and more importantly,
protecting Paulinas rights and interests to her
properties; however, said Deed was denied and
even torn by Theresa. Copies of the Deed of
Sale and the torn Deed of Sale are hereto
attached as Annexes A and series and are made
integral parts hereof;
2.9. Because of the disagreement as to how much
was the area sold to Theresa, Paulina decided to
return the consideration of P100,000.00 in
October 2011 as it would appear that no
perfected contract of sale took place since there
was no meeting of their minds; hence, the
contract is actually void and ineffectual.
This act of Paulina is consistent with the
provisions in Article 1475 of the Civil Code that
states: The contract of sale is perfected at the
moment there is a meeting of minds upon the
thing which is the object of the contract and
upon the price;
2.10. With the foregoing, Paulina repossessed the
2-hectare coconut land previously sold to
Theresa and regained control over it. This is

controlling as to settle the aspect with regard

the issue on prejudicial question of the two civil
cases as to this criminal case. This is patently
not applicable, because the causes of action in
the civil and the criminal actions were different
and distinct from each other. The civil action is
for the quieting of title and recovery of
possession of the land filed by herein
respondents, while the criminal action was to
determine whether the act of the respondents
of taking the coconut fruits from the trees
growing within the disputed land constituted the
crime of qualified theft. In the former, the main
issue is the legal ownership of the land, but in
the latter, the legal ownership of the land was
not the main issue. The issue of guilt or
innocence was not dependent on the ownership
of the land, inasmuch as a person could be
guilty of theft of the growing fruits even if he
were the owner of the land.
2.11. Consequently and in relation to the above
discussion, Domingo started re-administering
the 2-hectare coconut land for and in behalf of
Paulina by virtue of a Special Power of Attorney
executed on February 24, 2011. All proceeds of
the coconut land were then remitted and
surrendered to the latter;
2.12. This Special Power of Attorney, specifically
under letter (c), provides that I am given the
authority by Paulina to protect the interest of
the owner against any persons who might have
adverse interest of the property, and represent
the owner in case a suit is filed by or
against her xxx. This authority necessarily
includes the filing of a criminal case for qualified
theft which will nevertheless controvert the
contention of herein respondents that such
Special Power of Attorney does not include the
power to initiate criminal complaint for qualified
theft. Worthy of note in this respect is the fact
that the respondents in their counter-affidavit
never questioned the validity of the Special
Power of Attorney, which will impliedly negate
their allegation as to its contents. And this
Special Power of Attorney, being valid and

existing, will necessarily negate the claim of

herein Salvador in
paragraph 9 of the
respondents counter-affidavit as improper and
without basis, since such cited Special Power of
Attorney as in Annex C thereof cannot have a
leg to stand on, since Ms. Theresa is in no way
the owner of such subject landholding as
already established in the above discussion;
2.13. As to the contentions of the respondents in
their
counter-affidavit,
with
respect
to
paragraphs 8, 10 and 11 accordingly, all of
which are irrelevant and immaterial primarily
because nothing in the provisions of the law
requires the exact counting of the stolen
coconut for ones act to constitute as qualified
theft. What is important is the fact that there
occurred a stealing of coconuts within the
premises of the plantation. In particular, what
was contended by the respondents in their
counter-affidavit in paragraph 11 were all mere
assumptions of fact largely because they just
presumed certain number of days and hours in
a day of which number of coconuts can be
harvested, which would be contrary to a normal
undertaking of a criminal mind, in which latter
could hugely harvest a lot of coconuts than
what a normal coconut climber/worker could do.
In any way, such contentions are mere
superfluous with respect to this case on
qualified theft.
2.14. Lastly, with respect to the contention of
herein respondents in their counter-affidavit as
to the alleged harassment technique through
my criminal complaint, the same is plainly their
desperate position which is anchored without
any basis in law and jurisprudence. Besides, it
should be noted that herein complainant was
even the ones illegally taken over with, in its
sound right to the subject landholding and not
herein respondents.
3. In view of the foregoing, it would be our plea upon
executing this Reply to the Counter-affidavit of the
respondents, that the complaint on Qualified Theft against
the respondents be given due course.

IN WITNESS WHEREOF, I have hereunto set my hand

this ______________ at Tacloban City, Philippines.
DOMINGO
Complainant
SUBSCRIBED AND SWORN TO before me this
______________ at Tacloban City, Philippines affiant who
exhibited to me his _________________________ as competent
proof of his identity.