REPUBLIC OF THE PHILIPPINES

MUNICIPAL TRIAL COURT IN CITIES

CITY OF LAPU LAPU
PEOPLE OF THE PHILIPPINES
Plaintiff, Crim Case No. M-LLP-08-00262-CR
and M-LLP-08-00287-CR

-versus- FOR: ESTAFA Under Par. (1) Art. 316 of the RPC

TORIBIA GESULGA and DELFIN CASIO

Accused,
x -- - - - - - - - - - - - - - - - - - - - x

REPUBLIC OF THE PHILIPPINES

MUNICIPAL TRIAL COURT IN CITIES
CITY OF LAPU-LAPU

PEOPLE OF THE PHILIPPINES

Plaintiff, Crim Case No. M-LLP-08-00262-CR
and M-LLP-08-00287-CR

-versus-
FOR: ESTAFA Under Par. (1) Art. 316 of the RPC
TORIBIA GESULGA and DELFIN CASIO
Accused,

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

MEMORANDUM FOR THE ACCUSED

COMES NOW THE ACCUSED, in the above-entitled case, through the undersigned
counsels, unto this Honorable Court, most respectfully allege:

THE PARTIES

That the accused Toribia Gesulga and Delfin Casio are both of legal age, Filipino
citizens and residents of Pusok, Lapu-lapu City, Philippines and complainant Thelma J.
Cantoneros, a Filipino citizen of legal age and a resident of Pusok, Lapu-lapu City,
Philippines.
 STATEMENT OF THE CASE

Complainant Thelma J. Cantoneros, filed a criminal case of ESTAFA against

the accused Toribia Gesulga and Delfin Casio for violation of Par. 1, Art. 316 of the
Revised Penal Code,
Other forms of swindling. The penalty of arresto mayor in its minimum and medium
period and a fine of not less than the value of the damage caused and not more than
three times such value, shall be imposed upon: Any person who, pretending to be owner
of any real property, shall convey, sell, encumber or mortgage the same.

STATEMENT OF THE FACTS

Thelma J. Cantoneros filed a complaint of ESTAFA against the accused Toribia

Gesulga and Delfin Casio alleging among others that sometime on September 16, 1998
in the City of Lapu-lapu, Philippines, within the jurisdiction of this Honorable Court,
complainant Thelma J. Cantoneros allegedly accused Toribia Gesulga and Delfin Casio
that they mutually helping with each other to defraud complainant Thelma J. Cantoneros
by pretending to be the owner of Lot No. 835-D located in Pusok, Lapu-lapu City, Cebu
that through Delfin Casio as Attorney-in-Fact of her mother Toribia Gesulga, sell and
encumber a portion thereof to complainant Thelma J. Cantoneros for the sum of
P9,000.00 as road to right of way by virtue of a document entitled as Perpetual Road
Right of Way. That the said right of way was badly needed by Thelma J. Cantoneros as
she was able to buy a One Hundred Sixty-Four (164) Sq. meters portion of Lot No. 835-
C, which also she bought from Toribia Gesulga and Delfin Casio for a consideration of
P100,000.00.

That sometime in the fourth week of June 1999, Thelma J. Cantoneros received
a Summons and a copy of a Complaint for Quasi Delict and Injunction with prayer for
TRO from the Regional Trial Court, Branch 54 impleading Thelma J. Cantoneros as one
of the defendant together with Genoveva Pino, Toribia Gesulga, Ronel Jumaoas and
Delfin Casio. and with Marciano Quizeo and Galicano Arriesgado as the Plaintiffs.
Marciano Quizeo and Galicano Arriesgado alleged that Delfin Casio, being one of the
eight (8) children of Toribia Gesulga, has no existing right over these these lots because
Toribia Gesulga and Genoveva Pino conveyed their rights over these lots. For despite
demands, accused failed to return the amount of P9,000.00.

On the other hand, complainant Thelma J. Cantoneros, a businesswoman who

have been buying properties before this property of Toribia Casio admitted that it is her
duty to see the title of the property as a buyer but allegedly claiming that she have no
personal knowledge whether there was something wrong with the lot she purchased from
Toribia Gesulga and Delfin Casio.

Consequently, Thelma J. Cantoneros who received a summon and a copy of the

complaint for Quasi delict filed by Marciano Quizeo and Galicano Arriesgado in the first
week of June 1999, but filed this complaint on April 22, 2008 about nine (9) years after
but still allegedly claiming that she is a buyer in good faith.
 ISSUES

1. Whether or not complainant Thelma J. Cantoneros is a purchaser in good faith

2. Whether or not the accused Delfin Casio is personally liable as attorney-in-fact of
her mother Toribia Casio.
3. Whether or not Toribia Casio is criminally liable even in her death for the crime of
estafa under Par. (1) Art. 316 of the RPC

ARGUMENTS

1. A purchaser in good faith is one who buys the property of another without notice
that some other person has a right to, or an interest in, such property and pays a
full and fair price for the same at the time of such purchase, or before he has notice
of some other persons claim or interest in the property.1 The law requires, on the
part of the buyer, lack of notice of a defect in the title of the seller and payment in
full of the fair price at the time of the sale or prior to having notice of any defect in
the sellers title.2

The motive of the complainant Thelma Cantoneros in instituting a criminal action

against the accused in April 2008 is likewise assailed by the defense. While
Thelma Cantoneros knew of the prior claim of Galicano Arriesgado and Marciano
Quiezo in 1999, it took the private plaintiff nine (9) years to decide to file a case
against the accused. During the direct and cross-examination conducted by the
counsel, complainant Thelma Cantoneros was asked twice whether or not she had
seen the certificate of title before the execution of the Deed of Sale, her first answer
was obviously in contrast with the second answer.

2. By the contract of agency, a person binds him/herself to render some service or to

do something in representation or on behalf of another, with the consent or
authority of the latter. The elements of agency are: (1) consent, express or implied,
of the parties to establish the relationship; (2) the object is the execution of a
juridical act in relation to a third person; (3) the agent acts as a representative and
not for him/herself; and (4) the agent acts within the scope of his/her authority. As
the basis of agency is representation, there must be, on the part of the principal,
an actual intention to appoint, an intention naturally inferable from the principals
words or actions.

Agency is basically personal, representative, and derivative in nature. The

authority of the agent to act emanates from the powers granted to him by his
principal; his act is the act of the principal if done within the scope of the authority.
Qui facit per alium facit se. "He who acts through another act himself."3

1
Centeno v. Spouses Viray, 440 Phil. 881, 885 (2002).
2
De Leon v. Ong, G.R. No. 170405
3
Rallos v. Felix Go Chan & Sons Realty Corporation, 171 Phil 222 (1978)
 As evidenced in the Special Power of Attorney provided to surviving accused Delfin
Gesulga Casio attached to the Deed of Sale executed by Toribia Casio, Delfin
Casio met the requisites mentioned above, as an agent of his mother Toribia
Casio.

Article 1897 of the Civil Code of the Philippines also states that:

Art. 1897. The agent who acts as such is not personally liable to the party
with whom he contracts, unless he expressly binds himself or exceeds the
limits of his authority without giving such party sufficient notice of his
powers

Under the same document, there is no express mention of binding Delfin Gesulga
Casio nor has he exceeded the authority provided by its terms. Therefore, under
the power of the said article mentioned above, Delfin Gesulga Casio, acting solely
as an agent for his mother Toribia Casio, is not personally liable for the tort and
breach of contract committed by the latter.

3. Death of the accused pending appeal of his conviction extinguishes his criminal
liability as well as the civil liability based solely thereon. As opined by Justice
Regalado, in this regard, "the death of the accused prior to final judgment
terminates his criminal liability and only the civil liability directly arising from and
based solely on the offense committed, i.e., civil liability ex delicto in senso
strictiore."

Corollarily, the claim for civil liability survives notwithstanding the death of
accused, if the same may also be predicated on a source of obligation other than
delict.4 Article 1157 of the Civil Code enumerates these other sources of
obligation from which the civil liability may arise as a result of the same act or
omission:

4 Justice Vitug who holds a similar view stated: "The civil liability may still be pursued in a separate civil action but
it must be predicated on a source of obligation other than delict, except when by statutory provision an
independent civil action is authorized such as, to exemplify, in the instance enumerated in Article 33 of the Civil
Code." Justice Regalado stressed that:

Conversely, such civil liability is not extinguished and survives the deceased offender where it also arises
simultaneously from or exists as a consequence or by reason of a contract, as in Torrijos; or from law, as stated in
Torrijos and in the concurring opinion in Sendaydiego, such as in reference to the Civil Code; or from a quasi-
contract; or is authorized by law to be pursued in an independent civil action, as in Belamala. Indeed, without
these exceptions, it would be unfair and inequitable to deprive the victim of his property or recovery of damages
therefor, as would have been the fate of the second vendee in Torrijos or the provincial government in
Sendaydiego."
 a) Law 20

b) Contracts

xxx

Where the civil liability survives, as explained in Number 2 above, an action for
recovery therefor may be pursued but only by way of filing a separate civil action
and subject to Section 1, Rule 111 of the 1985 Rules on Criminal Procedure as
amended. This separate civil action may be enforced either against the
executor/administrator or the estate of the accused, depending on the source of
obligation upon which the same is based as explained above.

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed to this

Honorable Court to acquit Toribia Casio and Delfin Gesulga Casio of commiting estafa
under Under Par. (1) Art. 316 of the Revised Penal Code of the Philippines

AND/OR

Pass any other order it may deem fit, in the interest of Justice, Equity, and Good
Conscience.

October 11, 2017, Lapu Lapu City, Cebu, Philippines

Torres Servila & Partners

Magallanes St., Cebu City

Cates A. Torres

Shyril Ann Servila