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Republic of the Philippines

OFFICE OF THE SECRETARY
DEPARTMENT OF AGRARIAN REFORM
Diliman, Quezon City

IN RE: APPLICATION FOR EXCLUSION (AND RETENTION) FROM CARP

COVERAGE BASED ON LUZ FARMS RULING

CASE NO. A-1100-0001-01

LUCIA E. PELAYO, ET. AL.
Applicants-Appellants,

- versus -

DAR REGIONAL DIRECTOR, REGION XI,

Respondent-Appellee.

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APPEAL MEMORANDUM

APPLICANTS-APPELLANTS, through counsel, unto this Honorable Office,

respectfully files this APPEAL MEMORANDUM from the Order dated (undated), a

copy of which was received by them on June 25, 2001 and the Resolution dated

September 11, 2001, denying the motion for reconsideration, a copy of which was

received by them on September 19, 2001, on the following grounds:

1. There is grave abuse of discretion on the part of the Regional

Director;

2. Errors in the findings of facts or conclusions of laws were

committed which, if not corrected, would cause grave and
irreparable damage or injury to the applicants.

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DISCUSSION AND ARGUMENTS

1. There is grave abuse of

discretion on the part of the
Regional Director.

The applicants have not only applied for exclusion from CARP coverage of

50.9986 hectares of their land as grazing area but also for the remainder as their

retention area under R.A. 6657 (CARL) of 1988.

The basic order completely ignored the application for retention of

applicants which should be equivalent to 25 hectares for all of them at the rate of

5 hectares per applicant, and with grave abuse of discretion the RD reduced the

grazing area from the applied 50.9986 hectares to only 25 hectares.

Notably, the Joint Investigation of the PARO and MARO conducted on

October 28, 1998 disclosed that “Title No. TCT-112206 consisting of 50.9988

hectares is planted to coconut and is actually being used as grazing area for the

41 heads of cattle and 4 heads of carabao ”, yet the RD with grave abuse of

discretion approved only 25 hectares to be excluded from CARP coverage for

grazing area.

Based on the joint findings of the PARO and MARO and applying the

doctrine laid down by our Supreme Court in the case of Luz Farms vs. The Hon.

Secretary of the Department of Agrarian Reform (192 SCRA 51, Dec. 4, 1990), the

area to be approved for grazing should be a total of 45 hectares.

If 45 hectares are excluded from CARP for grazing area, out of the total

67.0341 hectares landholding of the applicants-appellants, there is a remainder of

22.0341 hectares. Since the appellants are entitled to a retention area of 5

hectares for each of them, then the remainder is not even enough to satisfy their

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total retention area. Furthermore, a certain area of 2 to 3 hectares of their total

landholding is traversed by a City road as clearly indicated in the sketch plan

submitted to this Office. If the area traversed by the City road is excluded, with

more reason, the retention area of appellants is much less than what they are

entitled to under R.A. 6657.

2. Errors in the findings of facts

or conclusions of laws were
committed which, if not
corrected, would cause grave and
irreparable damage or injury to
the applicants.

The Joint Investigation conducted on October 28, 1998 by the PARO and

MARO disclosed the following findings of facts:

“1. That Title No. TCT-112206 consisting of 50.9986 hectares is

planted to coconut and is actually being used as grazing area
of the 41 heads of cattle and 4 heads of carabao.”
(underscoring supplied).

The Order also states the following:

“Regional Office personnel tasked to conduct an

ocular inspection and investigation on the said area
confirmed the findings of the Joint Investigating
Team composed of the personnel from the PARO,
MARO and BARC Chairman except that there are only
more than twenty (20) heads of cattle per actual
count.” (underscoring supplied)

There is therefore concrete evidence to show that the 50.9986 hectares is

devoted to grazing area for cattles.

The aforequoted portion “except that there are only more than twenty (20)

heads of cattle per actual count” is a serious error which, if not corrected, would

cause grave and irreparable damage or injury to the applicants-appellants for they

will lose a substantial part of their grazing area. The applicant Lucia E. Pelayo was

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present during the October 28, 1998 Joint Investigation conducted by the PARO

and MARO, and the alleged 41 heads of cattle and 4 heads of carabao really

existed. As to the alleged “ocular inspection and investigation on the said areas x x

x” none of the applicants were notified and therefore they were not present.

There is no date as to when the second inspection took place. There is therefore

lack of due process. The applicants-appellants are entitled to notice so that they

could have been present to help in the actual recounting. The area is so big—50

hectares or 67 in all—and due to the tall grasses, bushes and shrubs that abounds

on some parts of the area, the Regional Office personnel may not have been able to

count all the existing cattles/carabaos. Notably, the second inspection reported

only “x x x heads of cattle”; it does not mention about carabaos. Hence, the

discrepancy between the counting of the PARO and MARO and that of the Regional

Office personnel.

Also, the undated Order states that “ Per information, cattle with COLCs

issued in 1976 and before were already gone (slaughtered, etc.) while the twenty

five (1, 1 and 23 with COLCs issued in 1979, 1980 and 1994, respectively) are

extant”. The statement “per information” is clearly hearsay. How did the Regional

Director or his personnel come to the conclusion that the cattles with COLCs issued

in 1976 and before were already gone”? Who gave the information? Is the

informant reliable? Was he authorized to conduct a recount? If so, were the

appellants notified so they or their authorized representative could be present to

help in the recount or dispute the result of the recounting if they are not in accord

with it? How many times will the cattles be counted before the application is acted

upon by the RD? Is a recounting without notice to the applicant a standard

prescribed procedure by the DAR before the application is acted upon? Clearly,

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there has been lack of due process. Furthermore, again, there is no account of

the carabaos.

Let us grant for the sake of argument only that some of the cattles were

sold because this is a commercial cattle ranch, and so those covered with COLCs

may no longer be there, yet some of the female cattles—and there are plenty of

them in the ranch—have given birth.

Significantly, even based on the COLC from 1958-1964; from 1972-1976;

1979, 1980 and 1994, the applicants have a total of 63 heads (page 2, Order, par.

4). Even if the old ones were sold, as aforestated, the female cattles have given

birth so that the number of cattles is self-replenishing, not to mention the

carabaos. In other words, being a commercial ranch, there are times that the

cattles become less in number because some are sold, but there are also times when

the number is more because of the continuous reproduction of the cattles in the

ranch. For this matter, for sometime now the overseer of applicants has been

trying to secure registration of the unregistered cattles. As soon as completed,

the registration certificates will be submitted to this Honorable Office.

If only for purposes of ascertaining as to how many cattles and carabaos are

found in the grazing area, the applicants-appellants offered to have a recount in

their presence or of their duly authorized representative. But for whatever

reason, the RD did not order a recount.

It bears repeating and stressing that the assailed undated Order states the

following comments favorable to the application of the applicants, to wit:

“x x x a Certification issued by the Acting

Municipal Agricultural Officer of Tugbok District,
Davao City confirmed the earlier finding that the areas

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have been utilized for grazing way back in the early

70’s.

As to whether or not said property was already

devoted to livestock prior to June 15, 1988, the COLCs
submitted, the Certification of the Acting Municipal
Agricultural Officer and the Tax Declaration will prove
that said property embraced in Title No. T-112206
been utilized for that purpose.” (p. 2, pars. 4 and 5,
Order)

Besides the foregoing findings, it is significant that the Municipal

Agriculturist even went to the area personally to inspect before he issued his

certification. This is true with the City Veterinarian who issued a certification in

which the number of heads of cattles and carabaos. Attached is a copy of the

Certification as Annex “A”. Since the DAR itself based on the official records in

his possession confirmed that the 50.9986 hectares “have been utilized for grazing

way back in the early 70’s” or that “said property was already devoted to livestock

prior to June 15, 1988,” the indubitable conclusion is that the said area or at least

45 hectares should be excluded from the coverage of the CARP.

Also, having applied for their retention area and having complied with all the

requirements, applicants are entitled to a retention area of five (5) hectares for

each of them.

DISCUSSION ON THE DENIAL OF THE

MOTION FOR RECONSIDERATION

The Resolution denying the Motion for Reconsideration dated July 5, 2001

states:

“We are not convinced. On the basis of the

allegations presented by movants, we find no merit and
cogent reason to reverse the said Order not to sustain
the foregoing contentions.

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First, we have already held that all Applications

require not the mere intent to apply but the formal
application which means the submission of all the
required documents corresponding to the application.
This Office waited from September 10, 1998 for
movants to submit all the documentary requirements of
their Application for Retention but they failed to do so.
Movants did not even bother to inquire or follow-up the
status of said application for so long a period of time
but only now that the order of exclusion has been
promulgated.”

Notably, Annex “A-1” of the aforementioned Motion for Reconsideration is a

letter addressed to the Secretary of the Department of Agrarian Reform, thru the

MARO, Tugbok, Davao City, specifically enumerates the documents required and

were actually submitted with the application of applicants, as follows:

“Earlier, we have already complied with your

instructions and have submitted the following:

1. Certified true copies of our titles subject of this

application
2. Current Tax Declaration covering the properties
3. Location map/vicinity map
4. Development Plan
5. Income Tax Returns from 1988 to the current tax
year
6. Certification from Department of Agriculture
7. Certification from the Davao City Veterinarian
8. Certification from the Davao city Assessor
9. Others”

In addition to the above documents, upon being required by the DAR,

applicants submitted the following:

“Attached are other requirements you have asked me

to submit:

1. List of Lucia E. Pelayo’s children and their spouses

2. Application for Retention
3. Amended application for Exemption/Exclusion”

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The Receipt by the DAR Office is indicated on the right bottom corner of

Annex “A-1” as follows:

------------------
|”Received by RGA |
| 9/15/98 |
| 9:30 A.M.” |
-------------------

Under date of August 10, 1999, at 11:00 A.M. as required by the DAR,

applicants submitted again the following documents specifically enumerated in

Annex “A” of the aforementioned Motion for Reconsideration, to wit:

“Attached is/are machine/true copy(s) of

title(s) tax declaration(s), sketch plan
____________________________________ of the
aforementioned landholding(s) subject to the herein
request together with other requirements, viz.:

1. Title : TCT Nos. T-112206, T-112207, &

T-112210
2. Tax Declaration : E-11-6-2193, E-11-6-1771,
E-11-6-1880
3. Others: Location/vicinity map/Sketch Plan
Development plan, Income Tax Returns from 1988 to
the current tax year, Business Permit
Xerox copies of certificates of ownership of large
cattle, carabao, Certification from the DA, Davao City
Veterinarian, & Davao City Assessor re: total agri
landholdings of the undersigned & her children with
their respective spouses Application for retention.

(Sgd.) LUCIA E, PELAYO, ET AL.

Name & Signature
Date : August 05, 1999” 

Particularly, Mrs. Lucia E. Pelayo is aghast that the DAR Regional Office now

denies submission of the required documents.

The Resolution further states that “(m)ovants did not even bother to inquire

or follow-up the status of said application for so long a period of time but only now

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that the order of exclusion has been promulgated.” This is not true, for Mrs. Lucia

E. Pelayo has been very vigilant in following-up her family’s applications at the

MARO, PARO and Regional Office of the DAR. Attached as Annex “B” to this

Appeal Memorandum is the affidavit of Corazon Navarro, the Liason Officer of

Mrs. Lucia E. Pelayo attesting to the submission of the required documents and the

numerous follow-ups made in the concerned DAR offices. There was even an

instance when her papers got misfiled, but the same were later on found, and

everytime she goes to follow-up, she was told to “just wait”. So, after “numerous”

follow-up efforts, Mrs. Pelayo waited for the order which was received by her only

on June 25, 2001. Not satisfied, she seasonably filed a motion for reconsideration.

Applicants believe that their submitted documents may have been misplaced again.

No less than the letter of then OIC, Asst. Reg. Director for Operations Eduardo E.

Suaybaguio dated August 4, 2000, a machine copy of which is hereto attached as

Annex “C” admits that “we have already received the other required documents

from the landowner.” Nevertheless, Annexes “A” and “A-1” of the motion for

reconsideration which were duly received by the DAR also indubitably and

conclusively prove that the required documents were in fact submitted.

The assailed Resolution on the application for exemption/exclusion of the

grazing area also states:

“Second, while we respect the findings of the

joint investigating team from the MARO, PARO, and
the applicants, we find no reason to reverse our own
finding and we stick to it because at the time this
office conducted its own investigation, there were only
more than 20 heads of cattle herded together in one
area per actual count. It bears stressing that for the
purpose of ascertaining as to how many heads of cattle
are found in the area, we conducted our own
inspection/investigation without giving notice to the

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applicant. Notably, our investigation only confirmed

that applicants only own more than twenty (20) heads
of cattle based on the 23 COLCs they submitted for
the year 1994. The rest were owned by other people
who just grazed their cattle in said areas. x x x”

The statement “we conducted our own inspection/investigation without giving notice

to the applicant” smacks of lack of due process guaranteed by our Constitution, and

an admission of a “gestapo” type of justice. This act of the DAR Regional Office

XI completely disregarded the inspection and report of the MARO and PARO as

well as the Certifications of the City Agriculturist and Veterinarian. Significantly,

the number of cattles and carabaos counted by the City Veterinarian jibes with the

counting of the DAR team. These public officials conducted their inspections

separately and issued the reports and the Certifications in due course of official

business. It is presumed that official duty has been regularly performed (Rule

132, Sec. 3(m), Rules of Court).

In this connection, the DAR employees conducted an advance inspection

before the agreed date of inspection as indicated in the letter of coverage. They

of course found cattles grazing in the applied area. After the appointed date of

conference for the coverage a team went to the area to conduct inspection. The

team found the 41 cattles and 4 carabaos. After that, there was no more

inspection by the DAR “surprise” or otherwise as attested to by Cesar Sombiling,

the Overseer of applicants in his affidavit hereto attached as Annex “D”. So, how

can the DAR conclude that that “applicants own more than twenty (20) heads of

cattle based on the 23 COLCs x x x for the year 1994” and that “the rest were

owned by other people x x x”? The separate findings of the City Veterinarian who

conducted a “surprise” inspection, as to the number of cattles and carabaos which

jibes with that of the DAR team is enough evidence to overthrow the unwarranted

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conclusion of OIC DAR Reg. Director Suaybaguio that “the rest of the cattles were

owned by other people”.

It bears repeating for emphasis that the area of the total landholding of

applicants is 67 hectares and the grazing area applied for is 50 hectares. It is so

big, grassy with bushes and shrubs that it is difficult to count all the cattles

unless they are gathered in one place or are tediously counted one by one by going

around the whole area which is quite impossible for the DAR employees. Moreover,

if any one or two people did so, the overseer of applicants would know or learn from

their own laborers or from the neighborhood. The conclusion therefore of the DAR

Regional XI aforecited lacks factual basis.

The conclusion that “The rest (of the cattles) were owned by other people

who just grazed their cattle in said areas” is unwarranted. How did the DAR

personnel arrived at such a conclusion? Again, there is no due process. The

applicants are entitled to present countervailing evidence, or at least entitled to

confront the people who claim ownership of the “rest” of the cattles, face to face,

or to confront face to face the witnesses or whoever made such a wrong conclusion

of fact.

Again, in the interest of justice, applicants respectfully reiterate their plea

for actual re-inspection and recounting of the existing large cattles in the area in

question if only to disprove the wrong conjectures based on wrong premises of the

DAR Regional XI Office.

R E L I E F

WHEREFORE, it is respectfully prayed that the assailed undated Order and

the Resolution dated September 11, 2001 of the RD be SET ASIDE and another one

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entered APPROVING the Application for Exclusion from CARP coverage, the

50.9986 hectares covered by TCT No. T-112206, and the remaining area minus the

area covered by the City road be declared the RETENTION area of the applicants-

appellants at the rate of five (5) hectares each applicant.

Davao City, Philippines, September 20, 2001.

LUCIA E. PELAYO
Applicant-Appellant for herself and as
authorized representative of
the four other applicants who
are her children.

Assisted by:

CARIAGA LAW OFFICES

2nd Floor, Cariaga Building
Mt. Apo Street, Davao City

By:

BIENVENIDO D. CARIAGA
Counsel for Applicants-Appellants
IBP NO. 522252-Davao City-12/29/2000

VERIFICATION

LUCIA E. PELAYO, of legal age, after being duly sworn, hereby depose and say that:

She is one of the applicants and the duly authorized representative of the other applicants
who are all her children;

She caused the preparation of the foregoing APPEAL MEMORANDUM;

She has read the same and alleges that the contents thereof are true and correct of her
own personal knowledge and based on authentic records.

LUCIA E. PELAYO
Applicant

SUBSCRIBED AND SWORN to before me this 20th day of September, 2001, at Davao
City, Philippines, Lucia E. Pelayo, exhibiting to me her Comm. Tax Cert. No. 18946144, issued
at Davao City, on January 8, 2001.

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Doc. No. 89;

Page No. 19;
Book No. 02;
Series of 2001.

Copy furnished by personal service to:

THE PROVINCIAL AGRARIAN REFORM OFFICER Received by: ____________

DAR, Gen. Luna St., Davao City Date: Sept. ____, 2001

THE DAR Regional Director, Region XI Received by: ___________

Ecoland, Matina, Davao City Date: Sept. ____, 2001

Copy furnished by registered mail to:

THE UNDERSECRETARY OF FOSSO Registry Receipt No. _________

DAR, Diliman, Quezon City Date: Sept. ___, 2001

THE MUNICIPAL AGRARIAN

REFORM OFFICER Registry Receipt No.
_________
DAR, Tugbok, Davao City Date: Sept. ___, 2001

EXPLANATION

I hereby certify that a copy of the foregoing APPEAL MEMORANDUM has been sent
by registered mail to the above parties, due to impracticability of personal service.

BIENVENIDO D. CARIAGA
Counsel for Applicants-Appellants

Mdappeal:appealmemopelayodarab

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