Republic of the Philippines

DEPARTMENT OF JUSTICE
National Prosecution Service
OFFICE OF THE CITY PROSECUTOR
BAYBAY CITY, LEYTE

DEPARTMENT OF ENVIRONMENT
AND NATURAL RESOURCES-
COMMUNITY ENVIRONMENT
AND NATURAL RESOURCES
BAYBAY
( DENR- CENRO BAYBAY),
Represented by : DENRO – CENR
Officer
ELMER B. LABACLADO,
ALICE DIAZ , CESAR MIRANDA,
Complainant

-versus - For : UNJUST VEXATION

MALICIOUS
MISCHIEF
USURPATION OF
REAL RIGHTS IN
PROPERTY
EVELYN CUTAMORA, GRAVE THREATS
Respondent under the Revised Penal Code
x----------------------------------/

COUNTER AFFIDAVIT

I EVELYN CUTAMORA , the herein respondent, married of

legal age , Filipino with residence address Zone 1, Baybay City,
Leyte Philippines, after having duly sworn to in accordance with law
hereby depose and say ;

1. The following paragraphs are specifically denied for the

following reasons:

1.1 Paragraph 1 is denied; (subsequently referred to as “Par” in

singular form, and “Paras” in its plural form ). The Par.
stating the personal circumstances of Mr. ELMER B.
LABACLADO is admitted but Par. 1 refers to the
accusations of the Complainant of which there are no basis
at all.

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1.2 Paras 2, 3, are hereby denied for lack of knowledge

sufficient to form a belief as to the truth thereof ;

1.3 Paras 4, 5 are irrelevant.

1.4 Paras. 6 ,7 are admitted.

1.5 Paras 8,9 are denied, for lack of knowledge sufficient to

form a belief as to the truth thereof;

1.6 Par.10 is admitted but the herein respondent is not

contesting the property (the dry river bed );

1.7 Par . 11 is admitted.

1.8 Par. 12 , is admitted, and to reiterate … situated in the one

of the identified vacant lot , particularly dry river bed.
( emphasis supplied)

1.9 Par. 13 is denied for lack of knowledge sufficient to form a

belief as to the truth thereof;

1.10 Paras. 14 , 15 ,17, 18 , 19, 20 are denied.

1.11 Par.16 is admitted but I did not said that they will stop the
production and distribution of seedlings, only the
construction of structures because doing it without MOA
is illegal ;

1.12 Par 21 is denied, I did not pick up all the hollow blocks as
my hand can not accommodate it all;

1.13 While it was true that there were broken hollow blocks, it
was because I lost my temper when Mrs. Diaz bullied me,
shouting to me “wa kay katungod “ taga DENR mi”, In
my anger I tried to cover the holes they dug, when I could
not find some stones I was left with no choice but to
throw the hollow blocks to the holes ;

1.14 Mrs. Diaz said arrogantly “your approval is not needed

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since the property is a public land we are DENR, it

belongs to us“. It was so dis appointing that a government
employee will treat private persons in such manner.

1.15 It would have been different if there was a MOA or there

was a thorough discussion / explanation between LGU
DENR and me - who is the present actual possessor and
who caused the cultivation of the land;

1.16 Par.22 clearly provides the scenario how I was so dis

heartened on how government employee treated me. I am
in possession of the property, yet they did not pay any
respect on me – I am the one who cultivated the property ;

1.17 Par. 23 is denied. I have documents to prove that the

property has a tax declaration, while it may not be
conclusive evidence of ownership but the fact that taxes are
being paid to the State for the use and cultivation of the
land. Thus, it can not be simply grabbed even by the
DENR.

1.18 Par.24 is denied, whether I shouted or not , there was an

altercation between me and Mrs. Diaz that was
understandable as she kept on saying DENR mi wa kay
mahimo ; .

1.19 Par. 25 is denied. I did not keep on shouting at all. When I

said “Nagtuo ka nga maka retire pa ka ! Di ka ma retire!
Wa kay uwaw , wa kay respeto?”, I was asking for respect
as the one who cultivated the lot.

1.20 Par. 26 is denied for lack of knowledge sufficient to form a

belief as to the truth thereof, if Mrs. Alice Diaz can not
sleep that is a product of her own doing;

1.21 Paras 27,28,30,31 are denied for lack of knowledge sufficient

to form a belief as to the truth thereof .

COUNTER STATEMENT OF FACTS

1. CENR Officer coordinated with the Punong Barangay of

Maganhan, and manifested his concern that the DENR
Office of Baybay City, Leyte will put up / installed
nursery for forest trees in Maganhan ;
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2. The Punong Barangay had approved that the nursery be

installed in the river bed that is vacant;

3. However, sometime in December 2021, I was surprised

that I was called in the Office of the CENR officer Elmer
Labclado thru the Punong Barangay of Brgy. Maganhan
– Renato Magan, requesting me to allow the DENR to
put a Nursery of Forest Trees in the Dry River Bed
which is declared in the name of Manuel Cutamora. I
was hesitant but tolerated the presence of the DENR
people in the lot of Manuel Cutamora;

4. The property of Manuel Cutamora is not a vacant lot ;

5. There are plants such as coconut trees, gemelina trees ,

bananas, bamboos and other crops , attached herewith
are sample pictures wherein the nursery for forest trees
was installed, marked as Annex 1, 1-A to Annex 1 -
C ,its contents are incorporated in this Counter Affidavit
by way of reference;

6. The dried riverbed has a tax declaration in the name of

Manuel Cutamora, attached is the Tax Declaration
marked as Annex “2” its contents are incorporated
herein and formed part of this Counter Affidavit by
way of reference;

7. Manuel Cutamora executed an Affidavit of ownership

in the said area, attached herewith is the AFFIDAVIT
marked as Annex “ 3” its contents are incorporated
herein and form part of this Counter Affidavit by way
of reference;

8. The dried river bed is adjacent to the titled property of

Manuel Cutamora as shown in the sketch map , of
which it is hereby attached marked as Annex “4”;

9. The Punong Barangay certified that Manuel Cutamora

is the possessor / occupant of the dried river bed in
Brgy. Maganhan adjacent to his titled lot, a copy of the

CERTIFICATION from the Barangay is hereby attached

marked as Annex “ 5 ” .
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10. The DENR issued a Certification that portion of

Pagbanganan Dried River Bed in Brgy, Maganhan with
an area of 9,778 square meters, although at present the
area is not anymore exact as stated due to erosion and
other movements of the soil , that portion of it is within
an area classified as Alienable and Disposable , attached
herewith is the Certification from the DENR marked as
Annex “6”.

11.Aside from the area occupied by Manuel Cutamora

there are also other dried river beds of which are vacant;

12.The installation/ construction of the Nursery in the

property declared under Manuel Cotamura never went
through a legal process at all;

13.The DENR has no paper to show, there was no

agreement between the Cutamoras as regard to the
installation/ construction of nursery of forest trees ;

14.What is Certified by the Punong Barangay that the

nursery be put in the vacant lot ;

15.It is clear in the pictures that there are already plants

planted in that area , hence it could not be said as
vacant;

16.Technically, the DENR was wrong in putting/ installing

the nursery in the area of Manuel Cutamora, because
that is not the one being referred to in the Barangay
Certification;

17.While the law provides that Dry River Beds can not be
alienated but at least the owner who cause the
cultivation should be respected;

18.As provided in DENR DAO No. 2022 -16 , Section 5.

Management and Disposition Scheme
5.1.4 The DENR may recommend the issuance of a
Presidential Proclamation or enter into Memorandum of
Agreement ( MOA) with the Local Government Unit (LGU)
for the proper management and development of the area .

19.The DENR does not have any MOA or MOU to show ,

while they are banking on the DAO No. 2022-16 yet
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they had not complied the provision as stated in the

preceding paragraph;

20.The government is being paid of its real property tax ,

attached herewith are receipts of tax payments of the
said real property marked as Annex “7 “, 7-A, 7-B, 7-
C”its contents are incorporated herein and formed part
of this Affidavit by way of reference ;

21.Manuel Cutamora is my father -in-law , the said lot was

inherited by my husband Benedicto Cutamora- the son
of Manuel Cutamora , and since he is paralyzed , he
could no longer do farm works, such that I took over in
administering the land;

22. I caused the cultivation of the said area attached

herewith are the Affidavits of RUPERTO ALCAPADO
the farm worker marked as Annex “8 “ and Affidavit of
AURELIO LOTERO marked as Annex “9” its contents
are incorporated herein and formed part of this Counter
Affidavit by way of reference;

FACTS ALLEGED
IN THE COMPLAINT AFFIDAVIT
DO NOT CONSTITUTE
UNJUST VEXATION ,
MALICIOUS MISCHIEF
USURPATION OF REAL RIGHTS
AND GRAVE THREATS

1. I deny the charges for Unjust Vexation , Malicious Mischief ,

Usurpation of Real Rights and Grave Threats .

2. The property where the nursery for forest trees is

constructed is not in the vacant lot as certified by the Punong
Barangay but in the dried river bed occupied by Manuel
Cutamora where there are plants within.

THE COMPLAINT ON
UNJUST VEXATION,
MALICIOUS MISCHIEF
ARE BEREFT OF BASIS IN
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FACTS and IN LAW

3. I caused the cultivation of the said area, I hired farm workers

to do the plantings and maintaining the place. I paid real
property tax, thus, I have the right to go to the place, inspect
the place and check the plants and coconuts if ready for
harvest or not ;

4. Somehow, I tolerated the presence of the DENR people as

well as the installation of nursery of forest trees and never
did I make some remarks to stop them in the production and
distribution of the seedlings to different municipalities;

5. However, when I saw the digging of holes, that was the time
that I questioned what are those holes for and even asked
those who dug the holes to cover it because those are not
allowed by the present possessor of the lot (of the dried river
bed).

6. There are many plants in the area digging holes will

eventually damage the plants;

7. The broken hollow blocks were not smashed into the holes
for the sake of damaging it, it was thrown because it was
supposed to cover it;

8. Should my remarks constitute unjust vexation, special

malicious mischief the same had prescribed .

6. The dates mentioned in the Complaint Affidavit are as

follows;
1. September 30,2022
2.October 12,2022
3. October 13,2022
the filing of the complaint is dated January 13,2023 , more
than 2 (two ) months before it was filed in the prosecutor
office .

7. Unjust vexation is classified as a light offense, it being

punished under the second paragraph of article 287 of the
Revised Penal Code with arresto menor or a fine ranging
from P5 to P200 or both. Under article 90 of the same
Code, light offenses prescribed in two months; and article
91 provides that "the period of prescription shall
commence to run from the day on which the crime is
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discovered by the offended party, the authorities or their

agents, and shall be interrupted by the filing of the
complaint or information, and shall commence to run
again when such proceedings terminate without the
accused being convicted or acquitted, or are unjustifiably
stopped for any reason not imputable to him.

8. On the closer look it was the DENR people who annoyed

me and irritated by digging holes in the dried river bed
where my plants are, without any MOA or MOU
( Memorandum of Agreement or Understanding ) from
the LGU and from the actual possessor of the land;

THE COMPLAINT ON
USURPARTION OF REAL RIGHTS
IS BEREFT OF BASIS IN FACT AND IN LAW

9. It was very clear from my actuations that I did not claim

the property as my own as I said “ Dili Mosugot ang tag -
iya sa yuta” ( see Par. No. 16 of the complaint affidavit) ;

10.I cultivated the lot upon the instruction of my father-in

law – Manuel Cutamora ( the declarant for tax purposes
of the property dried river bed), before he died the
property was entrusted to my husband Benedicto
Cutamora , during the lifetime of Manuel Cutamora my
husband and I were already cultivating the land . Upon
the death of my father-in – law, my husband succeeded
the cultivation of the abovementioned property. When
my husband got paralyzed, the property was under my
administration;

ART. 312. Occupation of real property or usurpation of

real rights in property. — Any person who, by means
of violence against or intimidation of persons, shall
take possession of any real property or shall usurp
any real rights in property belonging to another, in
addition to the penalty incurred for the acts of
violence executed by him, shall be punished by a
fine of from 50 to 100 per centum of the gain which
he shall have obtained, but not less than 75 pesos.

If the value of the gain cannot be ascertained, a fine

of from 200 to 500 pesos shall be imposed.
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11. Thus, from the facts alleged in the complaint and from
my narration as to the origin of the property, there was
no way that I usurped the property.

12. On the other hand the DENR personnel should provide

documents on their valid occupation of the said property
because the DENR DAO No. 2020 - 16 does not have a
provision that the DENR becomes automatic owner of the
dried river bed.

13. The DENR should review what is written in DENR DAO

No. 2022 -16 Section 5 , 5.1.4 – “The DENR may recommend
the issuance of a Presidential Proclamation or enter into a
Memorandum of Agreement (MOA) with the Local
Government Unit (LGU) for the proper management and
development of the area “. The DENR failed to do so.

THE COMPLAINT ON
GRAVE THREAT
IS BEREFT OF BASIS IN FACT AND IN LAW

14.The mere question of “ maka retire ba kaha ka?” “ wa kay

respeto” does not constitute grave threat.

Grave Threat As Defined : Any person who shall

threaten another with the infliction upon the
person, honor or property of the latter or of his
family of any wrong amounting to a crime, :

15.Thus, the elements of grave threat are not attendant.

16. Strict personal discipline is expected of a government

employee. When I said “ wa kay respeto” directing to Mrs.
Alice Diaz - it was not a threat , it was a clear feed back that
Mrs. Diaz as government employee had no respect at all ,
how can a government employee with no respect to the
private person retire as a government employee when her
conduct is un becoming , she should better cease to be a
government employee if she can not carry the ethical
standard of the government employee.

17. A public office is a public trust. Public officers and

employees must, at all times, be accountable to the people,
serve them with utmost responsibility, integrity, loyalty, and
efficiency; act with patriotism and justice, and lead modest
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lives.

THE COMPLAINT ON SLANDER under Art 358

IS BEREFT OF BASIS IN FACT AND IN LAW

18. In the case of Enrique de Leon vs. People of the

Philippines (G.R. No. 212623, January 11, 2016) through the
ponencia of Associate Justice Jose Mendoza defined and
expounded on the elements and nature of oral defamation:
“Oral defamation or slander is libel committed by oral
spoken means, instead of in writing. It is defined as ‘the
speaking of base and defamatory words which tend to
prejudice another in his reputation, office, trade, business or
means of livelihood. The elements of oral defamation are: (1)
there must be an imputation of a crime, or of a vice or defect,
real or imaginary, or any act, omission, status or
circumstances; (2) made orally; (3) publicly; (4) and
maliciously; (5) directed to a natural or juridical person, or
one who is dead; (6) which tends to cause dishonor, discredit
or contempt of the person defamed;

19. In order to determine whether a statement is defamatory,

the words used in the statement must be construed in their
entirety and should be taken in their plain, natural and
ordinary meaning as they would naturally be understood by
persons reading them, unless it appears that they were used
and understood in another sense. It must be stressed that
words which are merely insulting are not actionable as libel
or slander per se, and mere words of general abuse however
opprobrious, ill-natured or vexatious, whether written or
spoken, do not constitute a basis for an action for defamation
in the absence of an allegation for special damages. The fact
that the language is offensive to the complainant does not
make it actionable by itself;

20. However, the truth being the matter, on the alleged date
and time of incident as alleged by the complainant, I did
simply make my feedback “ Mga baga jud mo ug nawong ,
wala moy respeto nagpadayon gayud mo. I was just honest
on my feelings being so disappointed the way government
employee treated me and the way the DENR personnel
occupied the lot in the manner as if they have the absolute
power to take it without minding who planted the plants
therein. Having no respect of the plants doing all the digging
with their sole discretion .
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21.Given the foregoing, I should not be charged for slander

because the complaint failed to prove the elements of the
crime alleged.

22. I further deny that all allegations contained in the

complaint for being created to destroy my good name;

23. I began to suspect that the DENR personnel wanted to oust

me in the lot – the dried river bed possessed by Manuel
Cutamora so that they can claim the plants therein;

24. Some plants are already growing and some plants are
ready for harvest , they can claim it as their own and they
can show it to their superiors assuming they cultivated the
property by themselves for their performance appraisal;

25.The testimony of the complainant that alone is not sufficient

to charge me for the crimes alleged in the complaint
including the affidavit of his witnesses;

26.From the above discussion , I respectfully submit that the

only course open for this Honorable Office is to dismiss the
complaint against me , for the rule is that “when at the
outset the evidence cannot sustain a prima facie case or 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 “ ;

27. I am voluntarily executing this Counter – Affidavit to attest

the veracity of the foregoing statements. Moreover, the
contents thereof were explained to me in Cebuano which I
speak and fully understand ;

28. With all the foregoing, it is respectfully implored that

this Honorable Office forthwith dismiss the instant
Complaint for lack of factual and legal basis.