Republic of the Philippines

Department of Justice
NATIONAL CITY PROSECUTION SERVICE XI
OFFICE OF THE CITY PROSECUTOR
Panabo City, Davao del Sur

ANTHONY KARL F. GASPAR No. XI-08-INV- 18K-00145

Complainant,
FOR: OTHER FORMS OF
TRESSPASS
-versus-

ATTY. SITTI GILDA S. MAHINAY-SAPIE,

MUHAIMAIN SAPIE,REGINALD ASUMBRADO
ARMANDO PINO,LARRY O. GUISEHAN
ADONIS BIATOMAS,EDWIN WESIN
ARNOLD LAJERA,ANTONIO LAJERA
ROLDAN FERNANDO,JAMES ASUMBRADO
TEOFILO SERASPE,FLORENCIO BUMANGLAG
Respondents .
X------------------------------------------------------X

JOINT COUNTER- AFFIDAVIT

THE UNDERSIGNED RESPONDENTS respectfully allege:

PREFATORY STATEMENT

It must be stressed, that the Court took

the extraordinary step of annulling findings of
probable cause either to prevent the misuse of
the strong arm of the law or to protect the
orderly administration of justice. The
constitutional duty of this Court in criminal
litigation is not only to acquit the innocent after
trial but to insulate, from the start, the innocent
from unfounded charges. For the Court is aware
of the strains of a criminal accusation and the
stresses of litigation which should not be suffered
by the clearly innocent. The filing of an
unfounded criminal information in court exposes
the innocent to severe distress especially when
the crime is not bailable. Even an acquittal of the
innocent will not fully bleach the dark and deep
stains left by a baseless accusation for reputation
once tarnished remains tarnished for a long
length of time. The expense to establish
innocence may also be prohibitive and can be
more punishing especially to the poor and the
powerless. Innocence ought to be enough and the

Other forms of trespass- Marsman vs KAPARBA 1

 business of this Court is to shield the innocent
from senseless suits right from the start.

THE PARTIES

The complainant, ANTHONY KARL F. GASPAR, is the Director of

Human Resource of Marsman Drysdale by virtue of Secretary’s
Certificate of the Corporation;

The respondents, ATTY. SITTI GILDA S. MAHINAY-SAPIE is the

legal counsel of Kasilak Panabo Farmer Beneficiaries
Association (KAPARBA), Inc, whose membership composed of
other respondents namely REGINALD ASUMBRADO, ARMANDO
PINO, LARRY O. GUISEHAN, ADONIS BIATOMAS, EDWIN
WESIN,ARNOLD LAJERA,ANTONIO LAJERA,ROLDAN FERNANDO,
JAMES ASUMBRADO,TEOFILO SERASPE, and FLORENCIO
BUMANGLAG.

The respondent, MUHAIMAIN SAPIE, is the husband of Atty.

Sitti Gilda S. Mahinay-Sapie who supported his wife in the
installation of CARP beneficiaries who are the other
respondents namely: REGINALD ASUMBRADO, ARMANDO PINO,
LARRY O. GUISEHAN, ADONIS BIATOMAS, EDWIN WESIN,
ARNOLD LAJERA,ANTONIO LAJERA,ROLDAN FERNANDO, JAMES
ASUMBRADO,TEOFILO SERASPE, and FLORENCIO BUMANGLAG.

The Respondents, REGINALD ASUMBRADO, ARMANDO PINO,

LARRY O. GUISEHAN, ADONIS BIATOMAS, EDWIN WESIN,
ARNOLD LAJERA,ANTONIO LAJERA,ROLDAN FERNANDO, JAMES
ASUMBRADO,TEOFILO SERASPE, and FLORENCIO BUMANGLAG
are members of KASILAK PANABO FARMER BENEFICIARIES
ASSOCIATION (KAPARBA), Inc. who are petitioner claimants of

Other forms of trespass- Marsman vs KAPARBA 2

a landholding alleged to have been cultivated by Marsman
Drysdale.

All of the respondents can be served with notices and

processes through:

MAHINAY LAW OFFICE

187 Dominica St., Solariega
Talomo,Davao City
Atty. Gilda S. Mahinay
+63-906-624-8650/+63-919-863-9226
Telephone No.082-285-3710
Email ad: jbci98@yahoo.com

NATURE OF THE COMPLAINT LODGED

AGAINST THE RESPONDENTS

The case against the respondents is Other Forms of Trespass

penalized under Article 281 of the Revised Penal Code.

FACTUAL ANTECEDENTS

On November 4, 2018, the respondents ENTERED the banana

plantation composed of the landholdings with TCT NO. C-15292
with an area of 9.6692 owned by Winstor Villanueva et, al; TCT
No. C-14327 with an area of 8.9688 owned by Emmanuel Biol,
et al; TCT No. C-14269 with an area of 7.9727 owned by Carlos
Fajardo, et al. Hereto attached and marked as Annex 1-1b
respectively.

However, the above-named landholdings are now subject of

Agrarian Dispute pending before the Office of the DAR
Secretary in Quezon City. The reason for the case filed was
that, DAR Panabo City certified that the owners of the said

Other forms of trespass- Marsman vs KAPARBA 3

CLOAs are directly managing the land as farmer-beneficiaries.
Hereto attached and marked as Annex “2”, the Amended
Petition of the complainants.
On September 19, 2018, Atty. Luis Meindrado C. Pangulayan,
DAR USEC Legal Affairs, wrote to Atty. Sitti Gilda S. Mahinay-
Sapie regarding the status of the dispute pending before his
office. Hereto attached and marked as Annex “3”, the letter.

With all the promises that DAR gave to the respondents, the
latter wanted to prove DAR that they had lapses in certifying
that the CLOA owners are directly managing the subject
awarded lands. The SARPT of Panabo City certified among
others that the CLOA holders of TCT NO. C-15292 with an area
of 9.6692 owned by Winstor Villanueva et, al; TCT No. C-14327
with an area of 8.9688 owned by Emmanuel Biol, et al; TCT No.
C-14269 with an area of 7.9727 owned by Carlos Fajardo, et al.
are DIRECTLY MANAGING THE FARM OF THE SUBJECT
LANDHOLDING. Hereto attached and marked as Annex “4-4b”,
the SARPT certification.

Because of these certification, the landholdings were not

awarded to the respondents (except Atty. Mahinay-Sapie and
Mr. Sapie) which ultimately the very cause of action for the
cancellation of titles. Consequently, the respondents (except
Atty. Mahinay-Sapie and Mr. Sapie), filed the petition for
cancellation before the DAR. The very important evidence to
overturn and cancelled the said CLOA is to prove that these
holders are DUMMIES used by Marsman Drysdale PAVI.

The concrete evidence to prove that these CLOA holders do not

have any interest in the subject landholdings is to enter and
occupy the area and wait who will file a case against the

Other forms of trespass- Marsman vs KAPARBA 4

persons entering the said property. True enough, these CLOA
holders did not have interest at all because it is the MDPAVI
which filed a case against the respondents for other forms of
Trespass under Article 281 of the Revised Penal Code.

Again, to get and prove to DAR that CLOA holders did not have
interest at all but MDPAVI, the respondents gained entrance
through Gate No. 2, as it is used as barangay roads for ingress
and egress of the residents inside the banana plantation. The
respondents peacefully stayed in an abandoned and destroyed
building but did not DISRUPT THE OPERATION OF WEEDING,
CLEANING AND HARVESTING, contrary to what the security
guards testified in their Affidavit. The complainants were
staying inside the compound to prove to the Department of
Agrarian Reform that the named CLOA holders are DUMMIES
used by the Marsman Drysdale Panabo Agri-Ventures Inc. The
respondents discovered that neither did the CLOA holders
directly manage the farm as farmer-beneficiaries nor stayed in
the area.

On November 5, 2018, Marsman Drysdale Panabo Agri-Ventures

Inc. HR Director, Anthony Karl Gaspar and Security Manager
Adiencia went to the area where the respondents stayed. The
respondents had a discussion regarding the INTENT of entering
less force and intimidation. The video attached can prove that
there was no forceful entrance.

On November 6, 2018, Marsman Drysdale Panabo Agri-Ventures

Inc. HR Director, Anthony Karl Gaspar and Security Manager
Adiencia went to the Office of the Barangay Captain and asked
the Council to close the Gate 2. A couple of hours after, the
respondents went to the office of the MD PAVI and spent time

Other forms of trespass- Marsman vs KAPARBA 5

which led to the closure of the Gate 2 which happened to be a
barangay Road. Hereto attached and marked as Annex “5”,
the vicinity map showing it to be barangay road.

The presence of the MDPAVI representatives and the consent

given by the Barangay Captain and the first kagawad of
Barangay K asilak was witnessed by a person who personally
heard and see the MDPAVI representatives requesting the
respondents to give consent for the closure of barangay road.
Hereto attached and marked as Annex “6”.

Before the said entrance, at around 11:05 am of November 4,

Atty. Sitti Gilda S. Mahinay-Sapie requested Larry Guisehan and
James Asumbrado (respondents in this case), to go to Panabo
City Police Station to put on record the intent of the members
and officers of the KAPARBA, Inc. to enter the banana
plantation in Kasilak, Panabo, but PO3 Cabille and PO3 Parreno
refused to record the incident. Hereto attached and marked as
Annex “7”, the Police Blotter. This is to prove that the
respondents DID NOT HAVE CRIMINAL INTENT to trespass the
property, contrary to what the complaint alleged. A person in
his right mind would not inform the police officer that he will
commit a crime, that was why before the entrance, the
respondents wanted the police officer to know the purpose.

Worst, the ingress and egress are closed and the food could not
be brought inside, depriving the respondents of the basic need
to eat and survive.

Other forms of trespass- Marsman vs KAPARBA 6

 THE AFFIDAVIT COMPLAINT

A. Averments Of The Complainant

1. On November 14, 2018 a 12:00 noon, the respondents

together with 100 unidentified men arrived at Gate 2 of
MD PAVI plantation in Kasilak, Panabo City, Davao del
Norte.

2. The Group headed by Atty. Sitti Gilda S. Mahinay-Sapie

DEMANDED that they be allowed to enter the banana
plantation of MD PAVI.

3. When the security guards resisted the respondent’s

entry, they THREATENED the security guards of bodily
harm and without hesitations the respondents ALIGHTED
their vehicles and FORCIBLY REMOVED the steel
barricade installed at gate 2.

4. The respondents ENTERED the FENCED banana plantation

and thereafter ILLEGALLY OCCUPIED the company’s old
tool room at Area Line 3A and 4B in MD PAVI Kasilak
Farm.

5. The ENTRY of the respondents was WITHOUT CONSENT

and AUTHORITY from the management MD PAVI.

6. The said incident was reported on November 4, 2018 at

4:33 in the afternoon.

Other forms of trespass- Marsman vs KAPARBA 7

 B. Documentary/Testimonial Evidence Of The
Complainant

1. Joint Affidavit of SG Dhegie M. Vidal and SG Alex G.

Lendio - to prove that there was force in entering the
area;
2. Pictures of the respondents talking with the COP Panabo,
PSupt Deles.

THE COUNTER-AFFIDAVIT

A. Defenses of the Respondents

1. The issue here is not the entrance of the banana

plantation but it is an agrarian dispute, the respondents
(except Atty. Sitti Gilda S. Mahinay-Sapie and Muhaimain
Sapie) being the petitioner- claimants of the area;

2. Marsman Drysdale Panabo Agri Ventures Inc. (MDPAVI) is

not the owner of the areav as proved by the Certificate
of Title. Hence, the the gate is not owned by MD PAVI.
The Gate 2 is installed within the barangay road;

3. The gate installed by the MD PAVI is illegal as it is a

barangay road, not authorized to close or fence without
a barangay ordinance. The closure was made after the
respondents gained entrance in Gate 2.

4. Granting they owned the area, the gate is not installed,

it is removable. No evidence that the gate was
destroyed. No footprints of evidence to prove the
entrance was with force.

Other forms of trespass- Marsman vs KAPARBA 8

 5. The picture depicts that the respondents were talking to
the chief of police. If there was such commission of the
crime, the police should have arrested the respondents
through inquest proceedings;

6. Before the said entrance, the respondents requested PO3

Cabilles and PO3 Parenio to put on record the entrance
but they refuse the request contending that there is no
incident yet to put on record as evidenced by Police
blotter.

7. The “NO ENTRY” sign was made after the respondents

had gained entrance in the landholdings.

B. Testimonial Evidence Of The Respondents

1. JOINT AFFIDAVIT OF WITNESSES - to prove that what was

closed was barangay road attached as Annex “6”.

C. Documentary Evidence Of The Respondents

1. TITLE OF THE LAND- to prove that Marsman Drysdale is

not the owner of the subject landholdings attached as
Annex “1-1b”.

2. AMENDED PETITION – to prove that there is a pending

agrarian dispute between the parties, attached as Annex
“2”.

3. LETTER OF USEC PANGULAYAN TO ATTY. MAHINAY-SAPIE-

to prove that the respondent is the legal counsel of the
other respondents as attached as Annex “3”.

Other forms of trespass- Marsman vs KAPARBA 9

 4. SARPT CERTIFICATION- to prove that the CLOA holders
are not Marsman Drysdale PAVI but an individual who are
used as DUMMIES, attached as Annex “4-4b”

5. SKETCH MAP/ VICINITY MAP- to prove that the area

allegedly entered by the respondents are not owned by
Marsman Drysdale attached as Annex “5”

6. POLICE BLOTTER- to prove that there was no intent to

commit a crime as a person in his right mind would not
inform the policeman for the future crime he would
commit as attached as Annex “7”

7. INTERLOCUTORY ORDER- to prove that there is a pending

case between the parties and that there is an AGRARIAN
DISPUTE attached as Annex “8”.

8. JOINT AFFIDAVIT OF BUMANGLAG- to prove that Marsman

Drysdale violated the CARP implementation by installing
dummy beneficiaries enunciated under RA 6657 attached
as Annex “9”

9. Pictures and Videos – to prove that there was no forceful

entrance of the landholdings and there was no
commission of the crime of other forms of trespass
attached as Annex “10” and “11”

Other forms of trespass- Marsman vs KAPARBA 10

 ARGUMENTS AND DISCUSSIONS

ELEMENTS OF OTHER FORMS OF

TRESPASS UNDER ARTICLE 281 OF
THE REVISED PENAL CODE

Elements of Other Forms of Trespass

1. The property is OWNED by another.

 It is a public knowledge that the subject landholdings allegedly
entered by the respondents are not owned by Marsman Drysdale
PAVI as evidenced by the land titles.
 One must have the title in its name, it can include the right of
possession, the right of control, the right of exclusion, the right
of enjoyment and the right of disposition. Real estate ownership
carries with it a complex set of rights, and the bundle of rights
concept has traditionally been the way in which those rights are
assigned. Therefore, MDPAVI does not have any right to exclude
the respondents from entering the subject landholding.
 But granting arguendo MDPAVI is the owner, it cannot exclude
others from entering when it would prejudice third person. The
Law on Property provides:

Art. 430. Every owner may enclose or

fence his land or tenements by means of
walls, ditches, live or dead hedges,
or by any other means without
detriment to servitudes constituted
thereon. (388)

Art. 431. The owner of a thing

cannot make use thereof in such
manner as to injure the rights of a third
person. (n)

Other forms of trespass- Marsman vs KAPARBA 11

2. The premises is closed or fenced
 The premises is NOT FENCED but there is a barricade to the
barangay road which is removable, not fixed nor cemented.
“Premises” signifies distinct and definite locality. It may mean a
room, a shop, a building or definite area, but in either case,
locality is fixed.

3. The closed or fenced estate in UNINHABITED

 The estate is INHABITED as there are residents living in the area.
 Uninhabited is one where there are no houses at all, a
place at a considerable distance from town, or where
houses are scattered at a great distance from each other.
But was not in this case because the landholdings are
composed of houses, banana plantations, packing plant,
etc.

4. PROHIBITION to enter is MANIFEST

 The sign “NO TRESPASSING PRIVATE PROPERTY” was installed in
the Gate 2 which is a barangay road. The sign was installed only
AFTER the respondents gained entrance to the landholdings.
Gate 2 is used for the “in and out” of workers and residents.
 Therefore there is NO PROHIBITION to enter as it is barangay
road.

5. Trespasser has NOT SECURED the permission of the owner

 Marsman Drysdale PAVI is not the owner of the property, so
there is no need to secure consent from it.

Other forms of trespass- Marsman vs KAPARBA 12

NATURE OF TRESPASS

The law takes care of the acts which are to be recuperated

with compensation or punishment. These acts can lie from a
mere intentional touch to one’s person with an evil intention
of intrusion into one’s property without assigning any reason
for the action.

The law is often applied and has evolved to strike a delicate

balance between the private rights to the exclusion of others
and the socially valuable public and private interests that are
sometimes served by permitting unauthorized instances of
access. Therefore, it becomes extremely necessary to identify
the precise problem and its solution.

Public interest often trumps the private interest and is widely

recognized by law to be the distinctive exception to the
owner’s “Right to exclude.” In trespass , the entry should be
with intent to commit an offense or to intimidate, insult or
annoy the person in possession of the property.

MEANING AND INTERPRETATION OF TRESSPASS

Trespass can be said to be an action exceeding the limit carved

by the law. It is an intentionally directed, unreasonable
interference with one’s person and property. The word
‘intention’ here implies committing the wrong voluntarily.

Trespass allegation can be leveled if the interference is with

one’s and person’s body and private property. It is to be kept

Other forms of trespass- Marsman vs KAPARBA 13

in mind that intention forms the essential component of
trespass. Unreasonable behavior is triggered by the mala Fides
and ulterior intention to harass another.

In a situation of ambiguity, where the act of the respondents

permits of two possible signification, one culpable and another
innocent, the ambiguity should be resolved in favor of the
respondents. The evidence in this case simply fails to prove
commission of other forms of trespass.

THE COMPLAINT FAILED TO PROVE

ITS OWNERSHIP

The COMPLAINT alleged that there was forceful entrance of the

company’s premises but the complainant did not support it by
documentary evidence. It also failed to prove that the
landholdings are closed.

The complainant used the testimony of the security guards

Dhegie Vidal and Alex Lendio both detailed at the controversial
property in Barangay Kasilak, Panabo City to prove the
circumstances of the trespass incident on November 4, 2018.
But pictures and videos can prove hereto attached and marked
that there was no forceful entry nor the Security Guards were
intimidated and harmed by the respondents.

The respondents admitted to have entered the said premises

on such date, alleging that the area is not fenced, and that
anybody may enter the same passing through the Gate 2.

Other forms of trespass- Marsman vs KAPARBA 14

 APPLICABLE LAWS AND JURISPRUDENCE

ELEMENTS OF THE CRIME MUST BE

PRESENT IN ORDER TO PROSECUTE
THE RESPONDENTS

Fundamental is the precept in all criminal prosecutions, that

the constitutive acts of the offense must be established with
unwavering exactitude and moral certainty because this is the
critical and only requisite to a finding of guilt.

It must be noted that our Revised Penal Code was

enacted to penalize unlawful acts accompanied by evil
intent denominated as crimes mala in se. The principal
consideration is the existence of malicious intent. There
is a concurrence of freedom, intelligence and intent
which together make up the “criminal mind” behind the
“criminal act.” Thus, to constitute a crime, the act
must, generally and in most cases, be accompanied by a
criminal intent. Actus non facit reum, nisi mens sit
rea. No crime is committed if the mind of the person
performing the act complained of is innocent.

As we held in Tabuena vs. Sandiganbayan:

XXX

“Ordinarily, evil intent must unite with

an unlawful act for there to be a
crime. Actus non facit reum, nisi mens
sit rea. There can be no crime when
the criminal mind is wanting.”

American jurisprudence echoes the same principle. It

adheres to the view that criminal intent in

Other forms of trespass- Marsman vs KAPARBA 15

embezzlement is not based on technical mistakes as to
the legal effect of a transaction honestly entered into,
and there can be no embezzlement if the mind of the
person doing the act is innocent or if there is no
wrongful purpose.

PRESUMPTION OF INNOCENCE AND

THE PURPOSE OF PRELIMINARY
INVESTIGATION

INNOCENCE is presumed in our Constitution and the Rules of

Evidence, unless the contrary is clearly, positively and
convincingly proved by the complainant. In case of doubt,
INNOCENCE being presumed by our Constitution, the Rules of
Evidence, and existing criminal laws, the scale of justice thus
tilts in favor of the ACCUSED. This is the EQUIPOISE RULE in the
Rules of Evidence.

The respondents respectfully INVOKE the presumption of

their INNOCENCE. Complainant ought to traverse the said
presumption with convincing contrary evidence.

The instant case ought to be DISMISSED in order to shield the

respondents from precipitate, spiteful and burdensome
prosecution and to spare them from unnecessary and
undeserved trouble, expense, and torment of a public trial.

THE PURPOSE AND SPIRIT OF

PRELIMINARY INVESTIGATION

In the case of JOSE BERNARDO vs. RAFAEL T. MENDOZA, G.R.

No. L-37876, May 25, 1979, it was held that:

“ xxx although “prosecutors are endowed

with ample powers in order that they may

Other forms of trespass- Marsman vs KAPARBA 16

 properly fulfill their assigned role in the
administration of justice x x x, (it) should be
realized, however, that when a man is haled
to court on a criminal charge, it brings in its
wake problems not only for the accused but
for his family as well” and that “therefore,
it behooves a prosecutor to weigh the
evidence carefully and to deliberate thereon
to determine the existence of a prima facie
case before filing the information in court”,
otherwise, it, held that, it “would be a
dereliction of duty”.

In the case of “SUSANA B. CABAHUG, petitioner, vs. PEOPLE

OF THE PHILIPPINES, SANDIGANBAYAN, 3rd Division, and
OFFICE OF THE SPECIAL PROSECUTOR, respondents”, G.R.
No. 132816. February 5, 2002,

” xxxthe Supreme Court ”(admonished) agencies

tasked with the preliminary investigation and
prosecution of crimes that the very purpose of a
preliminary investigation is to shield the
innocent from precipitate, spiteful and
burdensome prosecution”. It added that such
investigating agencies were “duty-bound to
avoid, unless absolutely necessary, open and
public accusation of crime not only to spare the
innocent the trouble, expense and torment of a
public trial, but also to prevent unnecessary
expense on the part of the State for useless and
expensive trials”. It held that “when at the
outset the evidence cannot sustain a prima
facie case or that the existence of probable
cause to form a sufficient belief as to the guilt
of the accused cannot be ascertained, the
prosecution must desist from inflicting on any
person the trauma of going through a trial”.

Thus:

“x x x.
We cannot overemphasize the admonition to
agencies tasked with the preliminary
investigation and prosecution of crimes that the
very purpose of a preliminary investigation is to
shield the innocent from precipitate, spiteful
and burdensome prosecution. They are duty-
bound to avoid, unless absolutely necessary,
open and public accusation of crime not only to
spare the innocent the trouble, expense and
torment of a public trial, but also to prevent

Other forms of trespass- Marsman vs KAPARBA 17

 unnecessary expense on the part of the State for
useless and expensive trials. Thus, when at the
outset the evidence cannot sustain a prima facie
case or that the existence of probable cause to
form a sufficient belief as to the guilt of the
accused cannot be ascertained, the prosecution
must desist from inflicting on any person the
trauma of going through a trial.

X x x”.

In the case of BERNARDO vs. MENDOZA, G.R. No. L-37876,

May 25, 1979, it was held that :

“(although) prosecutors are endowed with ample

powers in order that they may properly fulfill
their assigned role in the administration of
justice, it should be realized, however, that
when a man is haled to court on a criminal
charge, it brings in its wake problems not only
for the accused but for his family as well”; and
that “it behooves a prosecutor to weigh the
evidence carefully and to deliberate thereon to
determine the existence of a prima facie case
before filing the information in court”; and that
“anything less would be a dereliction of duty”.

PRESUMPTION OF GOOD FAITH

In the absence of convincing contrary evidence, the

respondents are presumed to have acted in GOOD FAITH. The
respondents hereby state that they entered the subject
landholdings without any CRIMINAL INTENT to annoy the
MDPAVI but merely to assert the rights of the Petitioner-
claimants (the Respondents except Atty. Mahinay-Sapie and Mr.
Sapie) in all HONESTY and GOOD FAITH.

In the case of Cabahug v. People, GR No. 132816, February 5,

2002, it was held that :

“good faith is always presumed”; that “the

very purpose of a preliminary investigation is
to shield the innocent from precipitate,
spiteful and burdensome prosecution”; that

Other forms of trespass- Marsman vs KAPARBA 18

 “they are duty-bound to avoid, unless
absolutely necessary, open and public
accusation of crime not only to spare the
innocent the trouble, expense and torment
of a public trial, but also to prevent
unnecessary expense on the part of the State
for useless and expensive trials”; that
“when, at the outset the evidence cannot
sustain a prima facie case or that the
existence of probable cause to form a
sufficient belief as to the guilt of the
accused cannot be ascertained, the
prosecution must desist from inflicting on
any person the trauma of going through a
trial”. Thus:

“X x x.

Contrary to the Ombudsman’s ruling that bad

faith on the part of petitioner was
deducible, good faith is always
presumed.Therefore, he who charges
another with bad faith must prove it. In
other words, the Office of the Ombudsman
should determine with certainty the facts
indicative of bad faith. However, the records
show that the Office of the Ombudsman was
clearly uncertain of its position on the
matter of existence of bad faith on the part
of petitioner Cabahug. X x x.

X x x.
Clearly, any further prosecution of
petitioner is pure and simple harassment. It
is imperative that she be spared from the
trauma of having to go to trial on such a
baseless complaint. The evidence is
insufficient to sustain a prima facie case and
it is evident that no probable cause exists to
form a sufficient belief as to the petitioner’s
guilt.

X x x. Judicial power of review includes the

determination of whether there was grave
abuse of discretion amounting to lack or
excess of jurisdiction on the part of any
branch or instrumentality of the
government. Under this definition, the
Sandiganbayan should have, considering the
divergent positions in the Office of the
Ombudsman, granted the motion for
redetermination of probable cause after
reviewing the evidence thus far submitted,
and dismissed the case against petitioner.
Thus, respondent court committed grave

Other forms of trespass- Marsman vs KAPARBA 19

 abuse of discretion in allowing the case to
proceed.

X x x.

CONCLUSION

A preliminary investigation is the crucial sieve

in the criminal justice system which spells for
an individual the difference between months
if not years of agonizing trial and possibly jail
term, on the one hand, and peace of mind and
liberty, on the other. Thus, we have
characterized the right to a preliminary
investigation as not a mere formal or
technical right but a substantive one, forming
part of due process in criminal justice

After all, the purpose of preliminary

investigation is not only to determine whether
there is sufficient ground to engender a well-
founded belief that a crime has been
committed and the respondent therein is
probably guilty thereof and should be held for
trial; it is just as well for the purpose of
securing the innocent against hasty, malicious
and oppressive prosecution, and to protect
him from an open and public accusation of a
crime, from the trouble, expense and anxiety
of a public trial. More importantly, in the
appraisal of the case presented to him for

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 resolution, the duty of a prosecutor is more to
do justice and less to prosecute.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed

before this Honorable City Prosecutor to DISMISS the instant
case for WANT OF PROBABLE CAUSE.

Other reliefs just and equitable under the premises are

likewise prayed for.

RESPECTFULLY SUBMITTED. November 23, 2018, Panabo City,

Davao del Norte.

REGINALD ASUMBRADO ARMANDO PINO

EDWIN WESIN LARRY GUISEHAN

ADONIS BIATOMAS ARNOLD LAJERA

JAMES ASUMBRADO ANTONIO LAJERA

TEOFILO SERASPE ROLDAN FERNANDO

FLORENCIO BUMANGLAG MUHAIMAIN SAPIE

ATTY. SITTI GILDA S. MAHINAY-SAPIE

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SUBSCRIBED AND SWORN to before me this ______th day of November
2018. I HEREBY CERTIFY, that I personally examined the affiant and I am
satisfied that they have read and understood the contents of the Affidavit
and that they executed the same freely and voluntarily.

COPY FURNISHED:

Anthony Karl Gaspar

Marsman Drysdale PAVI
Kasilak, Panabo City

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