In re: Complaint of CSAG Permittee-DIONESIA FERNANDEZ

against Permittee Gabriel Lastimosa

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POSITION PAPER
COMPLAINANT, through the undersigned counsel, unto PENRO-LGU Panel for
Arbitration, most respectfully submits this position paper, and in support hereof, hereby
states that:

STATEMENT OF FACTS AND OF THE CASE

1. It appears from the records that in 20011 Dionesia Fernandez processed her
application for Commercial Sand and Gravel (CSAG) permit and the same was
approved in the year 2008.

2. That she sought the consent of the adjoining owners of the land subject of her
application. And since everybody interposed no objection, they signed an affidavit
to such effect.

3. After the expiration of her first CSAG permit, the complainant religiously renew the
same before the PMRB-Agusan del Sur. Complainant’s renewed permit was
approved on March 20, 2018.2

4. In the later months of 2017, she noticed that Gabriel Lastimosa, a CSAG applicant,
enter the approved area of the complainant and started to conduct survey/readings.

5. This caused alarm on the part of the complainant, fearing that she will be ousted in
the area approved and will be overlapped by the Gabriel Lastimosa.

6. Complainant immediately filed a complaint letter before the the PENRO LGU3 of
Agusan del Sur and DENR EMB dated December 14, 2017. He also submitted a
complaint before the Governors Office4 and CENRO Bayugan5.

7. She also filed a complaint before the Punong Barangay of San Salvador, alleging
among others that Gabriel Lastimosa started to extract sand and gravel in her
approved area.

8. In the mediation6 between the parties, Complainant-Fernandez proposed and

Gabriel Lastimosa agreed that the former will get her approved 3.17 hectares in the
CSAG permit.

9. The parties reached an amicable settlement7 that extraction will resume only after
the completion of area survey for complainant, as witnessed by PENRO-LGU

1
Joint Affidavit of Jaime Arangco and Domingo Bad-E dated October 16, 2001 and Affidavit of adjoining owner dated
January 14, 2002 Annex A and A-1
2
Copy of CSAG permit of Dionisia Fernandez Annex B
3
Copy of the letter complaint Annex C and C-a
4
Complaint to Governors Office dated March 22, 2018 Annex D
5
Complaint to CENRO dated March 26, 2018 Annex E
6
Minutes of the Mediation in the barangay dated April 4, 2018 Annex F
7
Amicable settlement dated April 19,2018 Annex G
 personnel and bragangay Officials, as to the metes and bounds of their respective
approved areas. This was witnessed by PENRO Representative Shiela Yu, EMB
Representative, MENRO Rep. and attested to by Punong Barangay Dionisio
Asuncion.

10. The filing of the complaint prompted the Punong Barangay to issue an Executive
Order8 addressed contractors/companies to stop the payment of extracted sand
and gravel, pending resolution on the boundary conflict between Dionesia
Fernandez and Gabriel lastimosa. In addition, the punong barangay sent
notice/request9 to Project engineers of JB Earth Movers and incoming punong
barangay elect to withhold payments from the extractions in the disputed area,
pending resolution of the conflict..

11. Gabriel Lastimosa continously extracted sand and gravel from the disputed area in
violation of the agreement made before the barangay.

12. Complainant have her area surveyed and a sketch plan10 was prepared by
Geodetic Engineer PRISC POPETE S. AYCO.

13. The OIC PENRO-Ricardo Caldeo sent letter11 to the barangay captain requesting
a to have a meeting with the latter together with the CSAG permittee with Dionisia
Fernandez and Gabriel Lastimosa.

14. In the August 2018 settlement facilitated by PENRO LGU, it appears that the
dispute between the parties remains unsolved, and the panel of arbitrators decided
to require the parties to submit their position papers to fast track the resolution and
simplified the issues.

ISSUES

I. Whether or not Gabriel Lastimosa encroached on the approved area of

complainant Dionesia Fernandez.

II. Whether or not Gabriel Lastimosa violated the order of PENRO-LGU not
to extract Sand and Gravel in the disputed area.

III. Whether or not Dionesia Fernandez has a better right against Gabriel
Lastimosa

DISCUSSION

15. In the absence of the technical description of the approved permit of Gabriel
Lastimosa, the complainant has No way of determining whether both areas
overlapped each other.

16. While it is possible that both areas did not overlap, it is also possible that Gabriel
Lastimosa is extracting in the area of complainant Dionisia Fernandez.

8
Punong barangay Executive Order dated May 21, 2018 Annex H
9
Notice to JB Movers and incoming punong barangay dated May 30, 2018 Annex I and I-1
10
Sketch plan dated dated May 24, 2018 Annex J
11
Letter request of Ricardo Caldeo dated June 27, 2018. Annex K
13. Complainant being in the area since 2008, she knows very well her boundaries.What
is sure on the part of the complainant is that she had been able to identify her approved
area and this allegation is attested to by her adjacent owners.12 Even the barangay office
issued a certification of complainant being a long time permittee13 in the said area since
2008

14. On the issue of extraction by Gabriel Lastimosa, the same can be attested to by the
complainant with the attached pictures of equipment used by the Gabriel Lastimosa.

15. There being a pending complaint on boundary, it is only appropriate that either parties
should not make any moves that may escalate the problem.

16. It worth to reiterate that Gabriel Lastimosa is a new CSAG applicant who agreed in a
barangay settlement that there will be no extraction in the disputed area pending
resolution of their conflict.

17. As to who among the complainant and respondent has a better right on the said area,
the principle of primus tempore potior jure (first in time stronger in right) shall apply.

18. Considering that the complainant has an approved CSAG permit and the first one to
apply the same in 2008, as against the late permit of Gabriel Lastimosa, without stretch of
imagination, complainant has a better right.

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed of this Panel,

that decision be rendered to wit:

19. Stop any extraction of sand and gravel in the disputed area pending determination as
to metes and bounds of two conflicting CSAG permittees.

20. Determine the actual metes and bounds of the approved survey between Dionesia
Fernandez and Gabriel Lastimosa and establish boundary marks in the area.

21. Review the CSAG application papers and proper compliance of Gabriel Lastimosa

22. Should Gabriel Lastimosa found to encroach the approved area of Dionesa
Fernandez, sieze the equipment of the former and file formal charges against him, order
to pay damages, and order the cancellation of his permit.

Other reliefs just and equitable under the premises are also prayed for.

ATTY. MARCELIANO MONATO III

Assisting Counsel for Complainant

12
Pagpamatuod (Certification), dated May 17, 2018, from adjacent land-owners that the CSAG approved area of
Dionesia Fernandez is in truth possessed and occupied by her for a long time. Other Affidavits of adjacent owners
dated 2001 and 2002 supporting the application for CSAG permit of Dionesia Fernandez. Annex L
13
Barangay certification dated May 3, 2018, on Dionesia Fernandez' being CSAG permittee since 2008 Annex M
 TIMELINE and Attached Documents
Date Documents/Remarks
August 2018 Mediation between parties and PENRO-LGU required their
respective position papers
July 30, 2018 Complaint Letter of Dionesia Fernandez addressed to PENRO
dated July 30, 2018

June 27, 2018 Notice to Punong Barangay, dated June 27, 2018, from OIC
PENRO Ricardo A. Caldeo, requesting the former to
have a meeting together with conflicting permittees.
May 24, 2018 Technical Description and Sketch plan of CSAG prepared for
Dionesia Fernandez by Prisc Popete Ayco, dated May
24, 2018
May 30, 2018 Notice to JB Movers from Punong Barangay dated May 30,
2018, that there is pending conflict between Dionesia
Fernandez and Gabriel Lastimosa
May 28, 2018 Notice to newly elected Punong Barangay Asonzoilo Batalon
from sitting Punong Barangay dated May 28, 2018, that
there is pending conflict between Dionesia Fernandez
and Gabriel Lastimosa,
May 21, 2018 Executive order No. 2 dated May 21, 2018, of Punong
Barangay of San Salvador, directing all contractors not
to extract sand and gravel in the disputed area of
Dionesia Fernandez and Gabriel Lastimosa.
May 17, 2018 Pagpamatuod (Certification), dated May 17, 2018, from
adjacent land-owners that the CSAG approved area of
Dionesia Fernandez is in truth possessed and occupied
by her for a long time. Other Affidavits of adjacent
owners dated 2001 and 2002 supporting the application
for CSAG permit of Dionesia Fernandez.
May 3, 2018 Barangay Certification dated May 3, 2018 that Dionesia
Fernandez is an old CSAG permittee since 2008, and
had been renewing her permit every year on the same
area
April 19, 2018 Amicable settlement, dated April 19, 2018, between
complainant Dionesia Fernandez and respondent Gabriel
Lastimosa, where both agreed to quarry their respective
approved area after the completion of the survey of the
complainant's approved area.
April 4, 2018 Minutes of Mediation dated April 4, 2018, where Gabriel
Lastimosa agreed that Dionesia Fernandez will claim
her 3.17 hectares approved area.
March 26, 2018 Letter complaint dated March 26, 2018 of Dionesia
Fernandez addressed to DENR CENRO of Bayugan on
the extraction of Gabriel Lastimosa without authority
and notice to adjacent owners

March 22, 2018 Letter protest of Dionesia Fernandez addressed to the

Provincial Governor dated March 22, 2018

March 20, 2018 Approved Commercial Sand And Gravel (CSAG)

Permit Dated March 20, 2018

December 14, 2018 Protest dated December 14, 2018 by Dionesia

Fernandez addressed and duly received by DENR-
EMB, alleging that Gabriel Lastimosa's CSAG
application overlap on the approved area of the former.

December 14, 2018 Protest dated December 14, 2018 by Dionesia

Fernandez addressed and duly received by OIC
PENRO-Ricardo Caldeo, alleging that Gabriel
Lastimosa's CSAG application overlap on the approved
area of the former.
1. Protest dated December 14, 2018 by Dionesia Fernandez addressed and duly
received by DENR-EMB, alleging that Gabriel Lastimosa's CSAG application
overlap on the approved area of the former.
2. Protest dated December 14, 2018 by Dionesia Fernandez addressed and duly
received by PENRO-LGU, alleging that Gabriel Lastimosa's CSAG application
overlap on the approved area of the former.
3. Approved Commercial Sand And Gravel (CSAG) Permit Dated March 20, 2018
4. addressed to DENR CENRO of Bayugan on the extraction of Gabriel Lastimosa
without authority and notice to adjacent owners
5. Minutes of Mediation dated April 4, 2018, where Gabriel Lastimosa agreed that
Dionesia Fernandez will claim her 3.17 hectares approved area.
6. Amicable settlement, dated April 19, 2018, between complainant Dionesia
Fernandez and respondent Gabriel
7. Letter protest of Dionesia Fernandez addressed to the Provincial Governor dated
March 22, 2018
8. Letter complaint dated March 26, 2018 of Dionesia Fernandez Lastimosa, where
both agreed to quarry their respective approved area after the completion of the
survey of the complainant's approved area.
9. Barangay Certification dated May 3, 2018 that Dionesia Fernandez is an old CSAG
permittee since 2008, and had been renewing her permit every year on the same
area
10. Pagpamatuod (Certification), dated May 17, 2018, from adjacent land-owners that
the CSAG approved area of Dionesia Fernandez is in truth possessed and
occupied by her for a long time. Other Affidavits of adjacent owners dated 2001 and
2002 supporting the application for CSAG permit of Dionesia Fernandez.
11. Executive order No. 2 dated May 21, 2018, of Punong Barangay of San Salvador,
directing all contractors not to extract sand and gravel in the disputed area of
Dionesia Fernandez and Gabriel Lastimosa.
12. Notice to JB Movers from Punong Barangay dated May 20, 2018, that there is
pending conflict between Dionesia Fernandez and Gabriel Lastimosa
13. Notice to newly elected Punong Barangay Asonzoilo Batalon from sitting Punong
Barangay dated May 20, 2018, that there is pending conflict between Dionesia
Fernandez and Gabriel Lastimosa,
14. Technical Description and Sketch plan of CSAG prepared for Dionesia Fernandez
by Prisc Popete Ayco, dated May 24, 2018
15. Notice to Punong Barangay, dated June 27, 2018, from OIC PENRO Ricardo A.
Caldeo, requesting the former to have a meeting together with conflicting
permittees.
16. Complaint Letter of Dionesia Fernandez addressed to PENRO dated July 30, 2018