08 June 2013

Evidence of Fraud and Conspiracy

G.R. No. 146214             October 5, 2007
RODOLFO M. CUENCA, petitioner,
vs.
HON. ALBERTO P. ATAS, JULITO F. FABRERO, and
HON. NATHANIEL A. LOBIGAS, in their capacity as Hearing Officers of the SECURITIES AND EXCHANGE COMMISSION; PHILIPPINE NATIONAL CONSTRUCTION CORPORATION, ASSET PRIVATIZATION TRUST, PHILIPPINE NATIONAL BANK, DEVELOPMENT BANK OF THE PHILIPPINES, NATIONAL DEVELOPMENT COMPANY, PHILIPPINE EXPORT AND FOREIGN LOAN GUARANTEE CORPORATION, and GOVERNMENT SERVICE INSURANCE SYSTEM,respondents.

Petitioner has not shown any proof or substantial evidence of fraud and conspiracy. Indeed, he who alleges fraud must prove it for basic is the rule that actori incumbit onus probandi. Differently stated, upon the plaintiff in a civil case, the burden of proof never parts. In the case at bar, the petitioner must therefore establish his allegation of fraud by a preponderance of evidence. Once again, petitioner utterly failed to do this. In addition, it is an aged-old rule in civil cases that he who alleges a fact has the burden of proving it and a mere allegation is not evidence. Fraud is never presumed, but must be established by clear and convincing evidence.

01 June 2013

Procedural Due Process in Administrative Proceedings

G.R. No. 146214             October 5, 2007

RODOLFO M. CUENCA, petitioner, 
vs.
HON. ALBERTO P. ATAS, JULITO F. FABRERO, and HON. NATHANIEL A. LOBIGAS, in their capacity as Hearing Officers of the SECURITIES AND EXCHANGE COMMISSION; PHILIPPINE NATIONAL CONSTRUCTION CORPORATION, ASSET PRIVATIZATION TRUST, PHILIPPINE NATIONAL BANK, DEVELOPMENT BANK OF THE PHILIPPINES, NATIONAL DEVELOPMENT COMPANY, PHILIPPINE EXPORT AND FOREIGN LOAN GUARANTEE CORPORATION, and GOVERNMENT SERVICE INSURANCE SYSTEM,respondents.


Procedural due process, in gist, is the necessity for notice and an opportunity to be heard before judgment is rendered. Its essence is encapsulated in the immortal cry of Themistocles to Alcibiades: "Strike––but hear me first." Thus, as long as a party is given the opportunity to defend his/her interests in due course, the party would have no reason to complain, for it is this opportunity to be heard that makes up the essence of due process.

In administrative and quasi-judicial proceedings where the magistrates or tribunals hearing the case are not bound by the niceties and finer points of judicial due process, the "cardinal primary" requirements of procedural due process, as gleaned by Justice Laurel from an array of American decisions, were enumerated in Tibay v. Court of Industrial Relations.


23 May 2013

The Wild Beast Theory

The person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes must keep it at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence if it escapes (Rylands vs. Fletcher).

In this case, it is not necessary for the plaintiff to prove negligence on the part of the defendant.

The defendant cannot raise the defense that he has taken all possible precautions to prevent damage or injury.

16 November 2012

DOUBLE TAP EXECUTIVES
Profit Recovery Specialists

Brochure / Company profile
click the link below:
dotx-brochure-pdf




CALL NOW! 


(632) 384-6804 / 09991785373 / 09154803374


Get your profits back, for time is gold




19 September 2012

DOUBLE SALE OF REAL PROPERTY


FACTS: For his bootlegging business, Pete Castellano is renting Lipari warehouse from Turk Sollozzo. One day, Sollozzo sold the said property to Castellano and the latter paid the selling price upon the execution of their handwritten agreement. 

A few years later, Tony Soprano appeared at the warehouse demanding that Castellano leave the premises as he allegedly bought the property from Turk Sollozzo. Soprano showed Castellano a notarized deed of absolute sale and served upon the latter a notice to vacate, with a warning that any failure of Castellano to comply would result in a court action or a "friendly visit" by enforcers from the Soprano family.

As Castellano's consigliere, he seeks your wisdom on the matter.


ISSUE: Who has the better right to the warehouse?


HELD: In double sale of an immovable, the following is the established rule of preference in determining ownership:
(a)            the person acquiring it who in good faith first recorded it in the Registry of Property;
(b)            the person who in good faith was first in the possession; and
(c)             in the absence thereof, to the person who presents the oldest title, provided there is good faith .

It must be observed that the law strictly requires that before the second buyer can obtain priority over the first, he must show that he acted in good faith throughout (i.e., in ignorance of the first sale and of the first buyer’s rights) from the time of acquisition until the title is transferred to him by registration or failing registration, by delivery of possession.

It must be noted that Soprano cannot be deemed to be in good faith because when he bought the real property, it is in possession of Castellano, a person other than the seller, Sollozzo. In the case of Conspecto vs. Fuerto, the Supreme Court pronounced that, one who purchases real property which is in actual possession of others should, at least, make some inquiry concerning the rights of those in possession. The actual possession by people other than the vendor should, at least, put the purchaser upon inquiry. He can scarcely, in the absence of such inquiry, be regarded as a bona fide purchaser as against such possessions.

16 September 2012

Bouncing Checks. BP Blg. 22 Notice of Dishonor Requirement


FACTS: Clemenza issued a check to Don Barzini in payment for some prior obligations of the family. However when Don Barzini deposited the check in the bank, the same bounced due to insufficient funds. Affronted, Don Barzini wanted to send Clemenza to go sleep with the fishes, but his consigliere prevailed upon him to file a case in for violation of Batas Pambansa Blg. 22 instead, in order to preserve peace between their families. Don Barzini assented but insisted that the case be filed right away.

ISSUE: Will the case prosper, considering that the check was indeed issued for a consideration and later bounced?

HELD: The case will be dismissed. Don Barzini failed to prove that Clemenza knows that at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of the check in full upon its presentment. Don Barzini did not serve a notice of dishonor to Clemenza in order that a presumption of such knowledge would arise against the latter. 

The elements of the crime are, as follows: 
(1) the making, drawing, and issuance of any check to apply on account or for value;
(2) the knowledge of the maker, drawer, or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of the check in full upon its presentment; and
(3) the subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit, or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment.

The first and last elements are relatively easier to establish as compared to the second element, which is a state of mind of the accused. It is difficult to prove that the issuer of the bounced check knows that he does not have sufficient funds for the payment of the check in full upon its presentment.

Hence, Section 2 of B.P. Blg. 22 creates a presumption of knowledge of insufficiency of funds under the following circumstances:  

Sec. 2. Evidence of knowledge of insufficient funds. — The making, drawing, and issuance of a check payment of which is refused by the drawee because of insufficient funds in or credit with such bank, when presented within ninety days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee.
   

06 September 2012

RE-ELECTION PREVENTS REMOVAL FROM OFFICE


FACTS: During Bruno Tattaglia’s first term as elected councilor of Little Italy, he was administratively charged before the Office of the Ombudsman for violation of the anti-graft law because of certain alleged favors to the local mob. During the pendency of the case, he was again re-elected to the same position. And, during his third re-election to the same office, the Ombudsman issued an administrative decision removing him from said position. 

ISSUE: Can re-elected councilor Bruno Tattaglia be administratively removed from his post for an alleged offense committed during his first term of office?

HELD: No, he can no longer be removed from office, because his re-election has rendered the administrative offense as moot and academic. In the case of Rodolfo Aguinaldo vs. Hon. Luis Santos, et al., G.R. No. 94115, 21 August 1992, the Supreme Court declared therein, that Aguinaldo’s re-election has rendered the pending administrative case against him moot and academic.
     Clear then, the rule is that a public official cannot be removed for administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor.