Republic of the Philippines

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

BAGONG HULAGAWAY RELOCATION NPS NO.

ASSOCIATION IN. REPRESENTED BY SONIA XI-02-INV-19-C-1595
ABRIO
Complainant,
FOR: SYNDICATED
-versus- ESTAFA, USURPATION
OF AUTHORITY OF THE
MIGUELA P. ORIG, RICARDA DEOCAMPO, ASSOCIATION
BONIFACIO MABILEN, FELOMINO ONDE ,
FRANCISCO CABILLAS, JOHNNY NG,
JEFFERSON TAO, YOLANDA ILAO AND AMELIA
CATALUNA

Respondents.
x---------------------------------------------------------------x

BAGONG HULAGAWAY RELOCATION NPS NO.

ASSOCIATION IN. REPRESENTED BY SONIA XI-02-INV-19-C-1596
ABRIO
Complainant,
FOR: SYNDICATED
-versus- ESTAFA, USURPATION
OF AUTHORITY OF THE
MIGUELA P. ORIG, RICARDA DEOCAMPO, ASSOCIATION
BONIFACIO MABILEN, FELOMINO ONDE ,
FRANCISCO CABILLAS, JOHNNY NG,
JEFFERSON TAO, YOLANDA ILAO AND AMELIA
CATALUNA

Respondents.
x---------------------------------------------------------------x

MOTION FOR RECONSIDERATION ON

THE RESOLUTION DATED MAY 20,
2019

COMES NOW, the complainant, through the undersigned counsel,

respectfully submit the Motion for Reconsideration on the
Resolution dated May 20, 2019 signed by Prosecutor Gaye T. Canete

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and approved by the City Prosecutor, Nestor M. Ledesma
respectfully avers:

PREFATORY STATEMENT

The determination of probable cause during a

preliminary investigation is an executive function,
the correctness of the exercise of which is a matter
that the trial court itself does not and may not be
compelled to pass upon.

In a preliminary investigation, the investigating

prosecutor makes a determination if there’s a
probable cause, which the existence of such facts
and circumstances is as would excite the belief, in a
reasonable mind, acting on the facts within the
knowledge of the prosecutor, that the person
charged was guilty of the crime for which he was
prosecuted... Thus, a finding of probable cause does
not require an inquiry into whether there is
sufficient evidence to procure a conviction. It is
enough that it is believed that the act or omission
complained of constitutes the offense charged, as
there is a trial for the reception of evidence of the
prosecution in support of the charge.

BASIS AND TIMELINESS OF THE MOTION

Under the DOJ Manual of Prosecutors, it provides:

SEC. 56. Motion for reconsideration. - A motion for

reconsideration may be filed within ten (10) days
from receipt of the resolution. The motion shall be
verified, addressed to the Provincial/City Prosecutor
or the Chief State Prosecutor, and accompanied by
proof of service of a copy thereof on the opposing
party and must state clearly and distinctly the
grounds relied upon in support of the motion.

The undersigned respondents received the Resolution on June 10,

2019 and they have until June 20, 2019 within which to file the

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Motion for Reconsideration. Hence, this Motion is still within the
time prescribed by law.

Further, the DOJ Manual of Prosecutors provide:

A motion for reconsideration is still part of due

process in the preliminary investigation. The denial
thereof is a reversible error as it constitutes a
deprivation of the respondent's right to a full
preliminary investigation preparatory to the filing of
the information against him. The court therefore may
not proceed with the arraignment and trial pending
resolution of the motion for reconsideration.

FACTUAL ANTECEDENTS

The complaint was filed on March 21, 2019 before the City
Prosecution Office . The CPO sent the subpoena on April 2, 2019,
but until now the respondents did not furnish the undersigned
counsel of their Counter-Affidavit. The Investigating Prosecutor
resolved the complaint pursuant to Section 3 (d) Rule 112 of the
2000 Revised Rules on Criminal Procedure, which provides:

Section 3. Procedure. — The preliminary investigation shall be

conducted in the following manner:

xxxx

(d) If the respondent cannot be subpoenaed, or if subpoenaed,

does not submit counter-affidavits within the ten (10) day
period, the investigating officer shall resolve the complaint
based on the evidence presented by the complainant.

xxxxx

In the resolution, it states that:

“ Upon perusal of the records of the case, the office of the
complaint attached the secretary’s certificate allegedly
used by the respondents who allegedly executed a deed of
sale on a revoked association, the secretary’s certificate
attached as Annex E a SEC Registration No. 0000234 which
is not the same SEC Registration No. DN 094000234 as
indicated in the SEC Certification alleging that the
association has been revoked as early as November 3, 2003.

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 The SEC Registration number indicated in the Deed of Sale
is Certificate of Registration No. 000234 which is NOT THE
SAME as indicated in the certification issued by the SEC as
revoked association.”

ISSUE AND ARGUMENTS

WHETHER OR NOT SECRETARY’S

CERTIFICATE OF RICARDA
DEOCAMPO USING SEC
REGISTRATION NO. 000234 REFERS
TO SEC REGISTRATION NO.
DN94000234

DN is a code and the 94 represents the year of filing and the 234 is
the number assigned to the registrant. Hereto attached and marked
as Annex “A”. In the Certificate, the name sis BAG-ONG HULAGWAY
RELOCATION ASSOCIATION, INC. which was approved April 25, 1994.

When there was an order revoking its registration on September 30,

2003, Miguela Orig filed a Petition to Lift the Order of Revocation.
Hereto attached and marked as Annex “B”. In the Petition, it was
Miguela Orig who filed the petition as President of the Association.
Miguela Orig is one of the respondents of the syndicated estafa.
Moreover, in the Petition to Lift the Order of Revocation, the SEC
Registration sought to revived is DN-094-000-234.

The Secretary Certificate of Ricarda Deocampo used only Sec

Registration No. 00234 which also referred to DN 94000234. In the
Secretary’s Certificate which is hereto attached as Annex “D”, it
was attested by Miguela P. Orig as President. Suffice it to say that
Miguela Orig as President in SEC Registration NO. DN 94 000234 and
Miguela Orig as President of SEC Registration No. 000234 is one and
the same person. It follows that DN 94 00234 referred to in the
Certification issued by the Securities and Exchange Commission and

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SEC Reg. No. 000234 as reflected in the Secretary’s Certificate is
one and the same.

WHETHER OR NOT THE

RESPONDENTS HAVE THE LEGAL
PERSONALITY TO TRANSACT
BUSINESS WITH THE KTC
CONTAINER TERMINAL
CORPORATION

The RESPONDENT, Ricarda Deocampo admitted that she is the

secretary of BHRAI and that the Board authorized Miguela Orig to
sell, dispose the specific titles owned by BHRAI. The revocation of
the SEC Registration of BHRAI in 2003 is a manifestation that the
BHRAI no longer exist as a legal entity. Therefore, the Secretary’s
Certificate is not existing which is a consequence, the Deed of
Absolute is VOID AB INITIO, as BHRAI is no longer a juridical entity
at the time of execution of the contract.

There is a general rule, no juridical personality after dissolution. If

there is, it is only a juridical personality to serve but one purpose-
for all transactions pertaining to liquidation, culminating in the
disposition and distribution of the dissolved corporation’s remaining
assets. Any matter entered into that is not for the purpose of
liquidation will be a void transaction because of the non-
existence of the corporate party. (SEC Opinion NO. 09-31 dated
09 December 2009 addressed to Ms. Liza G. Bautista citing SEC
Opinion 33-03 dated June 2003 addressed to Atty. Teresita A.M.
Villaruz.)

In the instant case, there is no dispute that complainant’s

corporate registration was revoked on November 3, 2003. Based on
provision of law, it had three years, or until November 3, 2006, to
file liquidation proceedings. The Secretary’s Certificate and the
Deed of Absolute Sale were executed in September 2018 and

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November 2018 respectively. Therefore the Deed of Absolute Sale is
VOID AB INITIO.

The import of this provision is that the trustee of a corporation may

continue to prosecute a case commenced by the corporation within
three years from its dissolution until rendition of the final
judgment, even if such judgment is rendered beyond the three-year
period allowed by Section 122 of the Corporation Code. However,
there is nothing in the said cases which allows an already defunct
corporation to initiate a suit after the lapse of the said three-year
period. On the contrary, the factual circumstances in the above
cited cases would show that the corporation involved therein did
not initiate any complaint after the lapse of the three-year period.
In fact, as stated above, the action was filed AFTER it lost its
corporate existence.

In the present case, the SALE is EXECUTED not only after its
corporate existence was terminated but also beyond the three-year
period allowed by Section 122 of the Corporation Code. Thus, it is
clear that at the time of the execution of the Deed of Absolute
Sale, the alleged vendors did not have the authority to do so.

WHETHER OR NOT THE

RESPONDENTS COMMITTED
SYNDICATED ESTAFA THROUGH
CONSPIRACY

Miguela Orig, et al. should be charged for syndicated estafa in

relation to Section 1 of PD No. 1689, which states that:

SEC 1. Any person or persons who shall commit

estafa or other forms of swindling as defined in
Article 315 and 316 of the Revised Penal Code, as
amended, shall be punished by life imprisonment to
death if the swindling (estafa) is committed by a
syndicate consisting of five or more persons formed
with the intention of carrying out the unlawful or

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 illegal act, transaction, enterprise or scheme, and
the defraudation results in the misappropriation of
moneys contributed by stockholders, or members of
rural banks, cooperatives, “samahang nayon(s)”, or
farmers associations, or of funds solicited by
corporations/ associations from the general public.

We hold that the afore-quoted law applies to the case at bar, for
the following reasons:

a. Under Section 1 of PD No. 1689, the elements of

syndicated estafa are: (a) estafa or other forms of
swindling as defined in Article 315 and 316 of the Revised
Penal Code is committed; (b) the estafa or swindling is
committed by a syndicate of five or more persons; and (c)
defraudation results in the misappropriation of moneys
contributed by stockholders, or members of rural banks,
cooperatives, “samahang nayon[s],” or farmers associations
xxx

b. First, as defined under Section 1 of PD No. 1689, a

syndicate “consists of five or more persons formed with the
intention of carrying out the unlawful or illegal act,
transaction, enterprise or scheme.” five (5) respondents,
namely, MIGUELA P. ORIG, RICARDA DEOCAMPO, BONIFACIO
MABILEN, FELOMINO ONDE, and FRANCISCO CABILLAS, were
all involved in the misrepresentation as active board
members of BHRAI in the light of selling the properties
owned by the Association. They were the officers and
directors, of BHRAI which was already revoked. They
actively participated in the scheme through their signed
correspondences with the bank and their attendance in the
meetings with KTC Container Terminal Corporation.

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 c. Second, while BHRAI was established presumably in
accordance with law, it cannot be denied that the
transactions entered into by the respondents MIGUELA P.
ORIG, RICARDA DEOCAMPO, BONIFACIO MABILEN, FELOMINO
ONDE, and FRANCISCO CABILLAS after the SEC Registration
was revoked was illegal and unlawful act of
misrepresenting BHRAI. Despite knowledge of its non-
existence of BHRAI, JOHNNY NG, JEFFERSON TAO,
YOLANDA ILAO AND AMELIA CATALUNA still continued to
buy the property.

d. The circumstances thereof was a clear manifestation that

there was intent to DEFRAUD the members of BHRAI, who
are the complainants in the case at bar.

e. Third, the fact that the defraudation of respondents

resulted to misappropriation of the money for the benefit
of the RESPONDENTS to the PREJUDICE AND DAMAGE to the
complainant.

f. In these cited cases, the RESPONDENTS used the revoked

association to perpetrate their unlawful and illegal acts.

1. There is estafa committed by the RESPONDENTS, due to the

following circumstances:

a. In the case of LIBERATA AMBITO, BASILIO AMBITO, and

CRISANTO AMBITO vs. PEOPLE OF THE PHILIPPINES and
COURT OF APPEALS, G.R. No. 127327, February 13,
2009, it was held:

“xxx that in the prosecution for Estafa under Article

315, paragraph 2(a) of the RPC, it is indispensable
that the element of deceit, consisting in the false

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 statement or fraudulent representation of the
accused, be made prior to, or at least
simultaneously with, the delivery of the thing by
the complainant; and that false pretense or
fraudulent act must be committed prior to or
simultaneously with the commission of the fraud, it
being essential that such false statement or
representation constitutes the very cause or the
only motive which induces the offended party to
part with his money. Thus:
“x x x.

The elements of Estafa by means of deceit, whether

committed by false pretenses or concealment, are
the following – (a) that there must be a false
pretense, fraudulent act or fraudulent means. (b)
That such false pretense, fraudulent act or
fraudulent means must be made or executed prior
to or simultaneous with the commission of the
fraud. (c) That the offended party must have relied
on the false pretense, fraudulent act or fraudulent
means, that is, he was induced to part with his
money or property because of the false pretense,
fraudulent act or fraudulent means. (d) That as a
result thereof, the offended party suffered damage.

b. In the prosecution for Estafa under Article 315, paragraph

2(a) of the RPC, it is indispensable that the element of
deceit, consisting in the false statement or fraudulent
representation of the accused, be made prior to, or at least
simultaneously with, the delivery of the thing by the
complainant.

c. The false pretense or fraudulent act must be committed

prior to or simultaneously with the commission of the
fraud, it being essential that such false statement or
representation constitutes the very cause or the only
motive which induces the offended party to part with his
money. In the absence of such requisite, any subsequent
act of the accused, however fraudulent and suspicious it
might appear, cannot serve as basis for prosecution for
estafa under the said provision.

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 d. In the case at bar, the records would show Miguela Orig, et
al entered into a transaction of sale knowing the SEC
Registration to have been revoked and ultimately
MISAPPROPRIATED the proceeds of the sale to the prejudice
and damage of the complainants.

WHETHER OR NOT CONSPIRACY IS

PRESENT

The complainants submit that CONSPIRACY existed among the

respondents to defraud them. In the case of Magsuci v.
Sandiganbayan, 240 SCRA 13 (1995), it was held, thus:

“There is conspiracy when two or more persons

come to an agreement concerning the commission of
a felony and decide to commit it. Conspiracy is not
presumed. Like the physical acts constituting the
crime itself, the elements of conspiracy must be
proven beyond reasonable doubt. While conspiracy
need not be established by direct evidence, for it
may be inferred from the conduct of the accused
before, during and after the commission of the
crime, all taken together, however, the evidence
thereof must reasonably be strong enough to
show a community of criminal design.”

There is conspiracy when two or more persons come to an

agreement concerning the commission of a felony and decide to
commit it. Conspiracy need not be proved by direct evidence
and may be inferred from the conduct of all the accused before,
during and after the commission of the crime.(PEOPLE OF THE
PHIL. vs. RALPHY ALCANTARA, ET AL, G.R. Nos. 112858-59, March
6, 1996).

CONCLUSION

In Suarez v. Platon, this Court described the prosecuting officer as:

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 “The representative not of an ordinary party to
a controversy, but of a sovereignty whose
obligation to govern impartially is as compelling
as its obligation to govern at all; and whose
interest, therefore, in a criminal prosecution is
not that it shall win a case, but that justice shall
be done. As such, he is in a peculiar and very
definite sense a servant of the law, the twofold
aim of which is that guilt shall not escape or
innocence suffer.”

PRAYER

WHEREFORE, it is most respectfully prayed to this Honorable City

prosecutor to file the Information of Syndicated Estafa against the
respondents. Other reliefs equitable under the premises are
likewise prayed for.

Respectfully submitted. This 11th day of June, 2019 at Davao City,

Davao del Sur, Philippines.

SONIA ABRIO
Complainant

Assisted by:

ATTY. GILDA S. MAHINAY, MA Econ.

Lawyer/Notary Public
187 Dominica St. Solariega Plantacion
Talomo, Davao City
PTR No. 2470304/January 8, 2019
IBP No. 068212/ January 10,2019
Roll No. 70474
MCLE EXEMPTED

SUBSCRIBED AND SWORN to before me this _____ day of June 2019 at Davao
City, Philippines. I HEREBY CERTIFY, that I personally examined the affiant and
I am satisfied that she has read and understood the contents of the Affidavit
and that she executed the same freely and voluntarily.

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 ATTY. GILDA S. MAHINAY, MA Econ.
Lawyer/Notary Public
187 Dominica St. Solariega Plantacion
Talomo, Davao City
PTR No. 2470304/January 8, 2019
IBP No. 068212/ January 10,2019
Roll No. 70474
MCLE EXEMPTED
Doc. No. _____;
Page No. _____;
Book No. _____;
Series of 2019

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