Republic of the Philippines

OFFICE OF THE OMBUDSMAN

Office of the Deputy Ombudsman for Mindanao
th
4 Floor, H and C Bldg., Alvarez St. Sta. Ana, Davao City

LEONILA B. AUXTERO DOCKET NO. OMB-M-C-15

ABRAHAM HEUSSEIN MATANOG, 0189
Complainants,
FOR : DIRECT BRIBERY;
– versus – CORRUPTION OF
UBLIC
OFFICIAL
NORBERTO D. VITUG, ET. AL.,
DOCKET NO. OMB-A-15-0224
Respondents.
X----------------------/
FOR : GRAVE MISCONDUCT

POSITION PAPER
COMES NOW, the respondent, unto this Honorable Office, most
respectfully aver:

1. That the undersigned has acknowledged the receipt of the Order

of the Honorable Office to submit a Position Paper dated July 24, 2015 in
connection with the case of Direct Bribery and Corruption of Public Officials
with Docket Number OMB-M-C-15-0189 and Grave Misconduct with
Docket Number OMB-M-A-15-0224 both filed and lodged before the Office
of the Ombudsman-Mindanao;

2. That with respect to the Complaint for Direct Bribery and

Corruption of Public Officials stemming allegedly from the act of the
complainant Leonila B. Auxtero and Abraham Hussein Matanog in bribing
co-respondent Luzmindo U. Bacol in consideration for the award of the
contract for the construction of the 5-storey BIR Building in Tandag City, the
undersigned vehemently denied that he ever received a portion of it since he
had no knowledge whatsoever of the alleged pay-out;

3. That there is no iota of evidence, direct, substantial, nor

circumstantial evidence that the undersigned had profited in nor received any
gift or consideration in the award of the contract for the construction of the
BIR Building and the basis for filing the instant complaint was the list of
attendees (Annex “A” of the Complaint) in the monthly progress report of the
subject building without any solid evidence against the undersigned;

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 4. That for Direct Bribery under Article 210 of the RPC to prosper
the following elements must concur, to wit:

1. That the offender be a public officer within the scope of Article 203
2. That the offender accepts an offer or promise or receives a gift or
present by himself or through another
3. That such offer or promise be accepted or gift/present received by
the public officer (mere agreement consummates the crime):
a. with a view to committing some crime (delivery of
consideration is not necessary) or
b. in consideration of an execution of an act must be unjust
(delivery of consideration is necessary), or
c. to refrain from doing something which is his official duty to do
d. that the act which the offender agrees to perform or which he
executes be connected with the performance of his official
duties

5. That the element number 2 and 3 of Direct Bribery is lacking

since the undersigned did not accept nor received any gift, present, or offer in
consideration of the approval of the contract for the construction of the BIR
Building and for the simple reason that complainants have no dealings with
the BIR that will jeopardize or benefit them in performing respondents’
official duties;

Thus, Complainants Leonila B. Auxtero and Abraham Hussein

Matanog in their Joint-Affidavit and Motion to Dismiss DENIES giving
bribes to the BIR officials.

6. That Mr. Bacol is not authorized by the undersigned. In the case

of “HAROLD V. TAMARGO vs. ROMULO AWINGAN, et.al. G.R. No.
177727, January 19, 2010, Third Division, Corona, J.” “On a principle of
good faith and mutual convenience, a man’s own acts are binding upon
himself, and are evidence against him. So are his conduct and declarations.
Yet is would only be rightly inconvenient, but also manifestly unjust, that a
man should be bound by the acts of mere unauthorized strangers; and is a
party ought not to be bound by the acts of strangers, neither ought their acts or
conduct be used as evidence against him”;

7. That the undersigned is also not liable under Article 212 of the
RPC since this particular article of the RPC applies to a “person who shall
have made the offers or promises or given the gifts or presents as described in
the preceding articles” or the giver of the gifts or presents;

8. That the undersigned is not liable to Grave Misconduct since

there is no probable cause for corruption against the undersigned; neither he
committed transgression of established laws, rules and regulations.
Misconduct may be considered grave if the elements of corruption, willful

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intent to violate the law or to disregard established rules are present. (Samson
v. Restrivera, G.R. No. 178454, March 28, 2011);

9. That it is clear that the basis for the filing of the administrative
case for gross misconduct on the undersigned was the alleged act of bribery
and since the undersigned could not be held liable for direct bribery nor for
corruption of public officials under Article 210 and 212 of the RPC, the case
of gross misconduct has no more legs to stand, hence, must be dismissed
outright;

10. That the undersigned hereby re-pleads and reiterates his

arguments, defenses and other claims contained in the undersigned’s counter-
affidavit;

11. That the undersigned prays for the dismissal of the complaint of
Direct Bribery, Corruption of Public Officials and Grave Misconduct for lack
of merit, to rule otherwise it will destroy the more than 30 years of
unblemished reputation of the undersigned in the revenue service;

WHEREFORE, the herein respondent respectfully prays that the

complaint of Direct Bribery, Corruption of Public Officials and Grave
Misconduct be dismissed for lack of merit.

Other relief and remedies as may be deemed just and equitable under
the premises are likewise prayed for.

City of Butuan, Agusan del Norte, September 28, 2015.

NORBERTO D. VITUG
Respondent

Republic of the Philippines )

City of Butuan, Agusan del Norte ) S.S.

SUBSCRIBED AND SWORN to before me this ____ day of

_______________, 2015, at Butuan City, Philippines, the herein Position
Paper with respondent exhibiting his BIR ID.

ATTY. NESTOR T.
ESCALONA

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 AFFIDAVIT OF SERVICE
THROUGH MAILING
That on the _____ day of September 2015, I cause the service of a true
copy of the Position Paper of the respondent thru mail _______________
addressed to the stated address of parties in the complaint.

____________________
MAILER

A. Complainants:

1. LEONILA B. AUXTERO
Mandug, Maglana
Buhangin, Davao City

2. ABRAHAM HUSSEIN MATANOG

Spring Valley, Maglana
Buhangin, Davao City

B. Contractors:

1. MR. FERNANDO U. ABAN

South Ironrock Corporation
Mitra Bldg., San Pedro St.,
Davao City

2. MS. MARILYN FUERZAS

General Manager
South Ironrock Corporation
Mitra Bldg., San Pedro St.,
Davao City

3. MR. JAYSON TABANO

General Manager
South Ironrock Corporation
Mitra Bldg., San Pedro St.,
Davao City

C. BIR:
1. Ms. Christine Juliet R. Chua
2. Atty. Nestor T. Escalona
3. Ms. Mary Grace R. Tan

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4. Mr. Luzmindo U. Bacol
5. Ms. Cayetana R. Torotoro
6. Mr. Isidro C. Villahermosa
7. Ms. Remedios C. Calo
8. Mr. Voltaire G. Vergara
9. Mr. Francisco T. Trillo