REPUBLIC OF THE PHILIPPINES

METROPOLITAN TRIAL COURT

NATIONAL CAPITAL JUDICIAL REGION
MAKATI CITY
BRANCH 67

PEOPLE OF THE
PHILIPPINES,
Plaintiff,

CRIM. CASE NO. 373904

BALTAZAR NUEDA
MELGAR,
Accused.
x-------------------------------------x

MOTION FOR LEAVE OF COURT TO FILE

DEMURRER TO EVIDENCE
WITH ATTACHED DEMURRER TO EVIDENCE
Accused, by counsel, unto this Honorable Court,
respectfully avers:

1. On 07 October 2016, the Accused, through counsel,

received a copy of the Order of the Honorable Court dated 29
September 2016 admitting the Documentary Evidence of the
Prosecution, subject to the evaluation of their probative value
in the final resolution of the case, and therein declaring that
the prosecution is deemed to have rested its case.

2. Section 23, Rule 119 of the Rules of Court provides:

“Section 23. Demurrer to evidence. – After

the prosecution rests its case, the court may
dismiss the action on the ground of
insufficiency of evidence (1) on its own
initiative after giving the prosecution the
opportunity to be heard or (2) upon demurrer
to evidence filed by the accused with or without
leave of court.

If the court denied the demurrer to

evidence filed with leave of court, the accused
may adduce evidence in his defense. When the
demurrer to evidence is filed without leave of
court, the accused waives his right to present
 evidence and submits the case for judgment on
the basis of the evidence for the prosecution.

The motion for leave of court to file

demurrer shall specifically state its grounds
and shall be filed within a non-extendible
period of five (5) days after the prosecution
rests its case. The prosecution may oppose the
motion within a non-extendible period of five
(5) days from its receipt.

If the leave of court is granted, the accused

shall file the demurrer to evidence within a
non-extendible period of ten (10) days from
notice. The prosecution may oppose the
demurrer to evidence within a similar period
from its receipt.

The order denying the motion for leave of

court to file demurrer to evidence or the
demurrer itself shall not be reviewable by
appeal or by certiorari before judgment.

3. The instant case is for violation of Section 8 in

relation to Section 11 of Republic Act No. 6713, or the alleged
failure of the accused to have filed his Statements of Assets,
Liabilities and Net Worth (SALN) for the years 1998, 1999 and
2001.

4. Based on the evidence submitted by the

prosecution, it is clear that the prosecution failed to establish
the fact that the accused indeed failed to submit his SALN for
the years 1998, 1999 and 2001. The Certifications issued by
Marissa Barba of the Civil Service Commission (Exhibit “B”),
Catalina Damo of the Department of Public Works and
Highways (Exhibit “C”), Lydia P. Domingo of the Metropolitan
Development Authority (Exhibit “D”) and Henrietta F. Roque of
the Office of the Ombudsman Central Records Division
(Exhibit “E”) never made specifically mention that the accused
failed to submit the subject SALN’s for 1998, 1999 and 2001.

5. The evidence of the prosecution is clearly

insufficient to show that indeed the accused failed to submit
the subject SALNs as will be thoroughly discussed in his
Demurrer to Evidence.

6. Hence, this instant Motion for leave of court to file

demurrer to evidence.
 WHEREFORE, premises considered, it is respectfully
prayed that the accused be granted leave of court to file
demurrer to evidence.

Other reliefs, just and equitable under the premises, are

also prayed for.

Makati City, 10 October 2016.

BAYAUA AND ASSOCIATES LAW OFFICE

Counsel for Accused
Third Floor Gonzalez Building,
No. 1888 Orense Street,
Guadalupe Nuevo, Makati City
Tel Nos. (02) 750-4439; (02)881-7629

by:

ATTY. JORICO FAVOR BAYAUA

IBP No. 09572/ 01-13-11 Makati City
PTR No. 5330802/ 01-08-16 Makati City
Roll No. 47842
MCLE Compliance No. IV-0009973
December 5, 2012

Copy Furnished and Notice of Hearing

Atty. Amibelle B. Corpuz

Office of the Ombudsman
Prosecution and Monitoring Bureau
3rd Floor, Ombudsman Annex Building
Agham Road, Diliman, Quezon City

Hon. Asst. City Pros. Paolo Barcelona

Office of the City Prosecutor
Makati City Hall
Makati City

The Branch Clerk of Court

MeTC 67, Makati City

Please take notice that on 21 October 2016 at 8:30 o’

clock in the morning or soon thereafter as matters or
counsel may be heard, the undersigned counsel shall submit
the foregoing Motion for Leave of Court to File Demurrer to
Evidence with Attached Demurrer to Evidence for the
consideration and approval of the Honorable Court.

JORICO FAVOR BAYAUA

EXPLANATION
(If not served by registered mail)

Copies of the foregoing MOTION FOR LEAVE OF COURT

TO FILE DEMURRER TO EVIDENCE WITH ATTACHED
DEMURRER TO EVIDENCE are being served through
registered mail with return card due to distance and lack of
manpower to effect personal service.

JORICO FAVOR BAYAUA

 REPUBLIC OF THE PHILIPPINES
METROPOLITAN TRIAL COURT
NATIONAL CAPITAL JUDICIAL REGION
MAKATI CITY
BRANCH 67

PEOPLE OF THE
PHILIPPINES,
Plaintiff,

CRIM. CASE NO. 373904

BALTAZAR NUEDA
MELGAR,
Accused.
x-------------------------------------x

DEMURRER TO EVIDENCE
Accused, by counsel, unto this Honorable Court,
respectfully avers:

1. In the Order dated 29 September 2016, this

Honorable Court admitted the Documentary Evidence of the
Prosecution, subject to the evaluation of their probative value
in the final resolution of the case, and therein declared that
the prosecution is deemed to have rested its case.

2. An evaluation of the evidence of the prosecution

would show that the same are insufficient to establish the
guilt of the accused.

3. The instant charge is for Violation of Section 8 in

relation to Section 11 of Republic Act No. 6713, or more
specifically the alleged failure of the accused to submit his
Statement of Assets, Liabilities and Net Worth (SALN) for the
years 1998, 1999 and 2001.

4. It is worthy to emphasize, however, that the instant

charge was merely based on Certifications issued by the Civil
Service Commission (CSC), Department of Public Works and
Highways (DPWH), Metropolitan Manila Development
Authority (MMDA) and the Office of the Ombudsman, Central
Records Division (Ombudsman) that there appears no record
of the SALNs of the accused for the year 1998, 1999 and 2001.
The said Certifications, however, did not specifically
mention that the accused failed to submit the SALNs
subject of the instant case.

5. There is no dispute that the accused is a

government employee and was connected with the DPWH on
the time and date material to the instant case, and he was
subsequently transferred to the MMDA.

6. Thus, worthy of comparison is the Certification

issued by the DPWH as against that Certification issued by the
MMDA pertaining to the SALNs of the accused for 1998, 1999
and 2001.

7. Exhibit “C” or the Letter dated 20 August 2009

issued by Catalino Damo, Administrative Officer V of the
DPWH reads:

“xxx

This has reference to the Subpoena Duces

Tecum, (CPL-C-07-1458, CPL-C-06-0229)
directing the submission to that Office of
certified true and clear copy of the Statement
of Assets, Liabilities and Net Worth (SALN) for
years 1998, 1999 and 2001 of Engr. Baltazar
Melgar, former employee of this Region.

In this connection, please be informed that

all official records of flood control personnel
were already transferred to Metro Manila
Development Authority (MMDA).

xxx”

8. In relation thereto, Exhibit “D” or the Letter issued

by Lydia P. Domingo, Director III, Administrative Service of the
MMDa reads:

“xxx

This pertains to the attached SUBPOENA

DUCES TECUM requiring this office to furnish
you a certified true copy of Sworn Statement of
Assets, Liabilities and Net Worth (SALN) for CY
1998, 1999 and 2001.

Please be informed that Mr. Melgar has no

record foe the SALN for the said calendar years
 because during that period, he was still
connected with the Department of Public
Works and Highways and transferred to the
Metropolitan Manila Development Authority
(MMDA) only in August 2002. Hence, this
request for such record should be addressed t
to DPWH, National Capital Region (NCR).

xxx.”

9. Based on the above letters alone, it would already

establish that the prosecution failed to establish the guilt of
the accused beyond reasonable doubt.

10. Both offices never made mention that the accused

failed to submit his SALN for the years 1998, 1999 and 2001.

11. The DPWH merely mentioned that all records of

flood control personnel were transferred to the MMDA, but the
same does not specifically enumerate what records were
actually transferred to the MMDA. The said letter of the
DPWH did not even enumerate specifically the personnel who
were part of the flood control and the inventory of the records
pertaining to each flood control employee.

12. The letter of the MMDA, on the other hand, merely

made mention that it had no record of the SALN of the
accused for the years 1998, 1999a and 2001 because the
accused was then an employee of DPWH.

13. Evidently, the two letters are inconsistent with each

other. The DPWH mentioned that it had transferred all
records to the MMDA, but the MMDA insists that the records
remained with the DPWH.

14. Thus, it might have been possible that in the

occasion of the transfer of the alleged records of flood control
personnel from the DPWH to the MMDA, said records were lost
in transit, which could not be attributable to the accused, and
which definitely could not lead to the conclusion that the
accused failed to submit the subject SALNs, which would
warrant the conviction of the accused.

15. Moreover, there was no further evidence submitted

to prove that what was transferred by the DPWH to the MMDA
were actually the complete records of all flood control
personnel specifically showing that each personnel, with the
exception of the accused, have submitted their respective
SALNs for the year they were employed. Absent this evidence,
the accused cannot be presumed to have failed to submit his
SALN for the year 1998, 1999 and 2001.

16. For all we know, had evidence been completely

adduced from the DPWH, it would have appeared that the
accused, in fact, submitted the subject SALNs. Unfortunately,
the prosecution failed to present a witness from the DPWH to
testify on the specifics of what records were actually
transferred to the MMDA, whose records were actually
transferred to the MMDA, and the year or scope of the records
actually transferred to the MMDA vis-à-vis the personnel
concerned. Clearly, there already exists doubt on the issue
whether or not the accused in fact failed to submit the subject
SALNs.

17. With respect to the Certifications issued by the CSC

and the Ombudsman, the same is actually based on the
submissions of the DPWH or the MMDA of the SALNs of its
employees for the year applicable. It is worthy to point out
that the duty of a government employee is to submit his SALN
yearly to his employer/ corresponding government office, and
it is this government office, who, in turn submits the SALNs of
its employees to the CSC and the Ombudsman. Thus, the
accused cannot be blamed if the DPWH or the MMDA for that
matter failed to submit the SALNs of their respective
employees to the CSC or the Ombudsman.

18. In fact, as can be deduced from the Certifications of

the DPWH and the MMDA, there was a possibility that the
DPWH failed to transfer the said records or the DPWH lost the
records while transferring them to the MMDA. Thus, it is
possible that the DPWH may have also failed to submit the
SALN of the accused or its other employees to the CSC and the
Ombudman, or the DPWH lost the SALNs of its employees,
including that of the accused in the course of submitting the
same to the CSC or Ombudsman. This explains why there are
no records appearing with the CSC and the Ombudsman.

19. Clearly, there is no direct evidence to show that in

fact the accused failed to submit his SALNs for the years 1998,
1999 and 2001. What is apparent is that the pieces of
evidence of the prosecution - the Certifications - are mere
presumptions and conjectures, which could not even pass as
circumstantial evidence to warrant the conviction of the
accused beyond reasonable doubt.
 20. In the case of People of the Philippines v. Jose C. Go,
G.R. No. 191015, 06 August 2014, the Honorable Supreme
Court held:

“Demurrer to the evidence is "an objection

by one of the parties in an action, to the effect
that the evidence which his adversary
produced is insufficient in point of law,
whether true or not, to make out a case or
sustain the issue. The party demurring
challenges the sufficiency of the whole evidence
to sustain a verdict. The court, in passing upon
the sufficiency of the evidence raised in a
demurrer, is merely required to ascertain
whether there is competent or sufficient
evidence to sustain the indictment or to
support a verdict of guilt. x x x Sufficient
evidence for purposes of frustrating a demurrer
thereto is such evidence in character, weight or
amount as will legally justify the judicial or
official action demanded according to the
circumstances. To be considered sufficient
therefore, the evidence must prove: (a) the
commission of the crime, and (b) the precise
degree of participation therein by the accused."
Thus, when the accused files a demurrer, the
court must evaluate whether the prosecution
evidence is sufficient enough to warrant the
conviction of the accused beyond reasonable
doubt.”

21. To reiterate, the prosecution’s evidence is

insufficient to warrant the conviction of the accused beyond
reasonable doubt. The prosecution failed to establish that the
accused actually failed to submit the subject SALNs. The
Certifications did not make mention that the accused actually
failed to file the subject SALNs. In fact, the former employer of
the accused mentioned that the records of all flood personnel
to include the accused were transferred to the MMDA (new
employer of the accused), who denied having in its possession
the records allegedly transferred by DPWH. Clearly, there
exists a doubt on whether or not the accused failed to file the
subject SALNs.

WHEREFORE, premises considered, it is respectfully

prayed that the instant case ne DISMISSED for insufficiency of
evidence.
 Other reliefs, just and equitable under the premises, are
also prayed for.

Makati City, 10 October 2016.

BAYAUA AND ASSOCIATES LAW OFFICE

Counsel for Accused
Third Floor Gonzalez Building,
No. 1888 Orense Street,
Guadalupe Nuevo, Makati City
Tel Nos. (02) 750-4439; (02)881-7629

by:

ATTY. JORICO FAVOR BAYAUA

IBP No. 09572/ 01-13-11 Makati City
PTR No. 5330802/ 01-08-16 Makati City
Roll No. 47842
MCLE Compliance No. IV-0009973
December 5, 2012

Copy Furnished:

Atty. Amibelle B. Corpuz

Office of the Ombudsman
Prosecution and Monitoring Bureau
3rd Floor, Ombudsman Annex Building
Agham Road, Diliman, Quezon City

Hon. Asst. City Pros. Paolo Barcelona

Office of the City Prosecutor
Makati City Hall
Makati City

EXPLANATION
(If not served by registered mail)

Copies of the foregoing DEMURRER TO EVIDENCE are

being served through registered mail with return card due to
distance and lack of manpower to effect personal service.

JORICO FAVOR BAYAUA