AUTHORITATIVE OPINION

Legal Affairs Office

___________________________________________________________________________

15 February 2023

Commission on Audit
Regional Office
XYZ Province

Dear Commission on Audit Regional Office:

This legal opinion is to address your request for guidance in drafting the decision concerning
the petition for the revocation of the donation.

Per the previous discussion, the following are the pertinent facts:

Through various Resolutions passed by the Sangguniang Panlalawigan, the former governor
of XYZ, Gua Poe, entered into a number of deeds of donations with various local
government units (LGUs)/government agencies within the province involving a number of
properties, machinery, and supplies owned by the province.

On August 16, 2022, incumbent Governor Ma. Gan Dah requested the Commission on Audit
to conduct a special/fraud audit regarding the donations on the ground that they were
prejudicial to the interest of the provincial government.

On January 18, 2023, Governor Ma. Gan Dah filed a petition before the Commission on
Audit to revoke the donation and prayed for the following:

 Disallow and/or annul the donations of real properties by the provincial government
to the LGU/NGA beneficiaries;
 Restore the possession of the donated real properties to the provincial government;
 Such and other reliefs as may be deemed just and equitable under the
circumstances.

The applicable law is under Article 217 of the Revised Penal Code which states that:

“Any public officer who, by reason of the duties of his office, is accountable for public
funds or property, shall appropriate the same, or shall take or misappropriate or
shall consent, or through abandonment or negligence, shall permit any other person
 to take such public funds or property, wholly or partially, or shall otherwise be guilty
of the misappropriation or malversation of such funds or property.” 1

The foregoing provision govern the case at bar. The person involved is former Governor Gua
Poe of XYZ province and the issue is concerning the several deed of donations with the
various local government units (LGUs)/government agencies within the province involving
several properties, equipment, and supplies owned by the province.

In the case of Zoleta v Sandiganbayan, the Supreme Court held that malversation may be
committed by appropriating public funds or property; by taking or misappropriating the
same; by consenting, or through abandonment or negligence, by permitting any other
person to take such public funds or property; or by being otherwise guilty of the
misappropriation or malversation of such funds or property.

The elements common to all acts of malversation under Article 217 of the Revised Penal
Code, as amended, are the following: (a) that the offender be a public officer; (b) that he
had custody or control of funds or property by reason of the duties of his office; (c) that
those funds or property were public funds or property for which he was accountable; and
(d) that he appropriated, took, misappropriated or consented, or through abandonment or
negligence, permitted another person to take them.2

The jurisprudence stated above is applicable in the case at bar. Former Governor Gua Poe
was a (a) public officer, (b) who had custody or control of funds or property by reason of the
duties of his office, (c) that those funds or property were public funds or property for which
he was accountable, and (d) ) that he appropriated, took, misappropriated or consented, or
through abandonment or negligence, permitted another person to take them.

In view of the foregoing, it is clear that the former Governor Gua Poe misappropriated the
public properties of XYZ provincial government when he entered into several deeds of
donations with various LGU’s while fully aware that his actions will be prejudicial to the
interest of the provincial government.

Hence, we recommend the Commission on Audit to grant the petition filed by incumbent
Governor Ma. Gan Da.

We hope to have provided you guidance in the matter. Thank you.

Respectfully yours,
Legal Affairs Office

1
Revised Penal Code. Comp. & Edited by Rex Bookstore (2018) (Pocket size).
2
Zoleta v Sandiganbayan, GR No. 185224. July 29, 2015.