Republic of the Philippines
DEPARTMENT OF JUSTICE
National Prosecution Service
OFFICE OF THE CITY PROSECUTOR
Baguio City
JOSE DASALLA,
Complainant,
- versus -
NPS DOCKET NO. I-17-INV-
17D-0796
KIT MAPANAO, JULIAN (Crim. Case No. 136305)
LOMIBAO and CARMEN
LOMIBAO,
Respondents,
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OMNIBUS MOTION for RECONSIDERATION
COMES NOW, respondents, through the undersigned counsel, and
unto this Honorable Office, most respectfully move for the
reconsideration of its Resolution dated 12 April 2017, a copy of which
was received by the respondents on 02 May 2017, on the ground that:
THE HONORABLE OFFICE ERRED AND/OR COMMITTED
PALPABLE MISTAKE IN ITS FINDINGS THAT:
“WHEREFORE, the undersigned finds PROBABLE CAUSE
against RESPONDENTS Julian Lomibao, Carmen Lomibao and Kit
Mapanao of the crime of Serious Disobedience upon an Agent of a
Person in Authority for disobeying a lawful order while the Complainant
was in the performance of his duties and recommends that they may be
indicted and prosecuted under the corresponding attached Information
for approval.”
Primarily, herein respondents vehemently and specifically deny the
charges made against them for by the complainant are entirely false. The
truth of the matter are laid out as follows:
1) On 24 March 2017, at around 4:30 o’clock in the afternoon,
the respondent, Carmen Lomibao (Carmen, for brevity),
prompted the other respondents Julian a.k.a. “George” Lomibao
(Julian, for brevity) and Kit Mapanao (Kit, for brevity) to run to
the supply center for the works being conducted in their house at
No. 3, Upper Malvar Street, Aurora Hill Proper, Baguio City;
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2) The vehicle with Conduction Sticker No. LP WD 1417 is a
2016 grey Chevrolet, owned by the respondents, which was in
fact parked in their garage within their property;
3) On their way out, the above-described vehicle was driven by
respondent Kit, and while it was being backed out of the garage,
respondent Julian went back inside to get his bag;
4) Respondent Kit was waiting inside the vehicle just outside
the driveway with the engine running and the hazard lights on,
and as respondent Julian was headed out, the complainant herein
came up to the vehicle;
5) Complainant was knocking on the window of the vehicle
prompting respondent Kit to get out of the car and as the
complainant was about to remove the plates of the above-
described vehicle, respondent Carmen approached the
complainant asking why he was going to remove the plates;
6) The complainant said that parking was prohibited there,
prompting respondent Carmen to explain that the car was theirs
and they were not parking since the engine was still running and
respondent Kit was inside. They were merely waiting for
respondent Julian to grab his bag. During this time, respondent
Carmen noticed that the complainant smelled of alcohol;
7) The complainant began apologizing to respondent Carmen,
stating that he did not know that the vehicle was theirs;
8) Almost immediately thereafter, respondent Julian came out
and asked what the complainant was doing, where he noticed
that the complainant appeared to be drunk;
9) Respondent Julian stated that the car was not parked and that
they were, in fact, about to leave, and he asked if he was in a
proper state to perform his duties as “tanod” considering that he
was inebriated;
10) The complainant apologized profusely to the
respondents reiterating that he was not aware that it was their car
and that he was under the impression that it was about to park;
11) Respondent Julian told the complainant to check very
well first before reprimanding anybody else especially
considering that the complainant was drunk;
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12) Thereafter, the complainant approached respondent
Carmen and apologized again, to which the latter responded that
it was OK and just to forget the misunderstanding;
13) Respondent Julian and respondent Kit rode the above-
described vehicle and left for their errands thereafter, while
respondent Carmen went back inside their place of residence;
14) None of the respondents, at any point during the
incident, laid a hand on or uttered unsavory words towards the
complainant, seeing that, at the time, the parties considered the
incident a small misunderstanding;
15) The foregoing incidents were witnessed by Johnny
Malasan Quijano and _____________, whose sworn
statements are attached and marked hereto as Annexes “1” and
“2”, respectively.
The elements of serious disobedience upon an agent of a person in
authority under Article 151 of the Revised Penal Code are as follows:
(1) A person in authority or his agent is engaged in the
performance of official duty or gives a lawful order to the offender;
(2) The offender resists or seriously disobeys such person in
authority or his agent;
(3) The act of the offender …
For purposes of crimes against persons in authority and their
agents, barangay tanods are considered agents of persons in authority.
Further, in order for it to constitute as an element of Article 151 of the
Revised Penal Code, the person in authority or his agent must be engaged
in the performance of official duty or gives a lawful order to the offender.
A perusal of the records would show that the appointment of the
complainant as tanod of Aurora Hill Proper Barangay was effective
January 1, 2016 to December 31, 2016. The incident subject of the
Resolution sought to be reconsidered occurred last 24 May 2017, well
beyond the period of the complainant’s appointment. As such, bearing in
mind that the complainant is no longer a tanod during the subject incident,
he cannot be said to have been in the performance of official duty or to
have been giving a lawful order to the respondents as he had no authority
to do so. Clearly, the first element for Serious Disobedience is lacking.
Second element is that the offender resists or seriously disobeys
such person in authority or his agent. As could be gleaned from the
foregoing statements, no resistance or disobedience was exhibited by the
respondents in the instant case. When the complainant approached the
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vehicle for supposed illegal parking, the respondents merely clarified that
the vehicle was not parked since the engine was still running and there
was a driver inside. In addition, despite the allegations of the complainant
in his Judicial Affidavit, it is clear from the photographs that he produced
that the vehicle was not in the middle of the road; rather, it was on the
side allowing adequate passage for other vehicles. In fact, the vehicle was
just backed out of the garage when the complainant came to them. Thus,
even assuming that the complainant was still authorized to reprimand
herein respondents for alleged illegal parking, there was no resistance or
disobedience on their part against the complainant.
PRAYER
WHEREFORE, in view of the foregoing, it is respectfully prayed
of this Honorable Office that the Resolution dated 12 April 2017 finding
PROBABLE CAUSE against RESPONDENTS Julian Lomibao, Carmen
Lomibao and Kit Mapanao of the crime of Serious Disobedience upon an
Agent of a Person in Authority be SET ASIDE and RECONSIDERED,
thereby DISMISSING the Complaint filed against them by Jose Dasalla.
Other reliefs and remedies, just and equitable, are likewise prayed
for.
Done this 11th day of May 2017, in Baguio City, Philippines.
A B S LAW OFFICES
Suite 305, Laperal Building
Session Road, Baguio City
Tel. No. (074) 442 8243
By:
PATRICIA MARIE FRANCES D. CASTRO
PTR No. 2882574/12.19.2016/Baguio City
IBP Lifetime No. 012653/04.04.2014/Baguio City
MCLE Compliance No. V – 0002740
Roll No. 63622
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REPUBLIC of the PHILIPPINES )
DONE in the CITY of BAGUIO ) S.S.
VERIFICATION
We, JULIAN LOMIBAO, CARMEN LOMIBAO and KIT
MAPANAO, of legal ages, Filipino citizens, with residential address at
No. 3 Upper Malvar Street, Aurora Hill, Baguio City, Philippines, under
oath, do hereby depose and state that:
We are the respondents to the complaint filed against us for
Serious Disobedience to an Agent of a Person in Authority
docketed as NPS Docket No. I-17-INV-17D-0796 (Criminal Case
No. 136305);
We have caused the preparation and filing of the Omnibus
Motion for Reconsideration in relation to the Resolution dated 12
April 2017 for NPS Docket No. I-17-INV-17D-0796;
We have read and understood the factual material
allegations therein contained, and that the same are true and
correct of my own personal knowledge and based on authentic
documents on hand.
IN WITNESS WHEREOF, I have hereunto set my hand this 11th
day of May 2017 at Baguio City, Philippines.
JULIAN LOMIBAO CARMEN LOMIBAO
Affiant Affiant
Senior Citizen’s ID No. SSS ID No.
KIT MAPANAO
Affiant
SUBSCRIBED and SWORN to BEFORE ME this 11th day of
May 2017 in the City of Baguio, Philippines. Affiants exhibited to me
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their government-issued identification cards, the details of which
appearing below their names, bearing their photographs and signatures,
signed the same in my presence and avowed under penalty of law to the
whole truth of the contents of the foregoing statements.
Doc. No. ;
Page No. ;
Book No. ;
Series of 2017.
Copy furnished:
OFFICE of the CITY PROSECUTOR
Justice Hall, Baguio City
The BRANCH CLERK of COURT
Municipal Trial Court in Cities – Branch 1
Justice Hall, Baguio City
JOSE DASALLA
No. 29 Purok 3
Aurora Hill, Baguio City
2600 Philippines
(By registered mail)
Explanation of Service:
Service of the foregoing pleading was served to the complainant
through registered mail with return card due to time and distance
constraints and lack of personnel to personally serve the same.
PATRICIA MARIE FRANCES D. CASTRO
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