Republic of the Philippines

DEPARTMENT OF JUSTICE
OFFICE OF THE CITY PROSECUTOR
Davao City

DANIEL M. FERNANDE
Prosecutor-in-Charge

JOHNLERY O. ANDOY, NPS DOCKET NO.:

Complainant, XI-02-INV-17-G-2086

- versus - FOR: THEFT

GENEROSO SALUMBRO AND

RODOLFO BASAS,
Respondents.
________________________________________
Sir:

Respectfully endorsing the hereto attached Counter-

Affidavit, with attaching exhibits, of our client GENEROSO
SALUMBRO and RODOLFO BASAS, of legal ages and
residents of Crossing Malabog, Calinan, Davao City, in reply
to Complainants Affidavit-Complaint of the above-entitled
case, pending before the City Prosecutors Office of Davao
City.

In view thereof, we hope that the instant case be

dismissed.

Thank you.

August 31, 2017.

Respectfully yours,

ATTY. LUCILIZA DE LOS SANTOS

Roll No. 65812
PTR No.7460918, issued on01/06/17 @ Davao City
IBP No. 1059840, issued on01/05/17 @ Davao City
MCLE - Exempt
email: lucylegal2@gmail.com
58 Candelaria St., Ecoland, Davao City

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Copy Furnished:

CITY PROSECUTOR JOHNLERY O. ANDOY

Office of the City Prosecutor Complainant
Davao City Blk. 6, Lot 27,
Don Lorenzo Subdivision,
Toril, Davao City

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Republic of the Philippines)
City of Davao )
x--------------x

JOINT COUNTER-AFFIDAVIT

We, GENEROSO SALUMBRO and RODOLFO BASAS,

of legal ages, Filipinos and residents of Crossing Malabog,
Calinan, Davao City, by counsel, under oath aver that:

1. We are the respondents in the case of Theft filed by

Johnlery O. Andoy (Complainant for brevity)
docketed as NPS Docket No. XI-02-INV-17-G-2086
and is pending before the Office of the City
Prosecutor, Davao City;

2. We read the complaint, dated and subscribed on

June 27, 2017 filed against us and we deny
committing any act constituting Theft. Some of the
claims of the Complainant are true but most of the
accusations are false and mere incorrect opinions of
law;

3. In truth and in fact, Complainant prematurely

proceeded with the filing of his Affidavit-Complaint
even though he knew that the proper location
of the land areas are still in dispute
considering the fact that there is still questions
regarding the proper determination or
placement of boundary marks in the alleged
survey made by the complainants and thus,
whether or not there was theft is still to be
determined. As proof, a Certificate to File Action
dated January 6, 2017 was issued by Pangkat
Secretary Genelyn Pacifico on January 6, 2017.
A machine copy of the Certificate to File Action
is hereto attached as Annex 1 ;;

4. Respondent Salumbro was the registered applicant

for free patent at the Department of Environment
and Natural Resources (DENR) of lot number 1155,
Pls-1066 located at Sumimao, Calinan, Davao City.
Machine copies of the certified true copies of the
Application for Free Patent and Technical Description
as Annexes 2 and 3. On the other hand,

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 Complainant is at present the registered owner of
the adjacent lot designated as lot number 1152
covered by Transfer Certificate of Title No. TCT No.
146-2017005709;

5. Complainant bought lot number 1152 on April 2016

while Respondent Salumbro personally planted the
coconut and fruit bearing trees on 1975 and had
been in open, continuous and actual possession of
the contended portion of land since then. Such
planting by Respondent Salumbro was personally
witnessed by Mr. ______. A photocopy of the
affidavit executed by Mr. ____ is hereto attached as
Annex 4;

6. The survey that was conducted last September 28,

2016 was done without NOTICE and KNOWLEDGE of
the Respondents Salumbro and Basas. No notice was
given by the Barangay or anybody else. No
allegation and no proof were made by Complainant
in his affidavit-complaint of the sending by him or
any of his authorized representative of such notice to
the Respondents. More so, neither was there any
proof the receipt of either Respondent of such
notice;

7. If the survey was performed using proper protocol,

the surveyor hired by the Complainant should have
caused proper written notices to all adjacent owners.
Respondents, being one of such adjacent owners,
known to reside live near the land and are thus
easily accessible, should have been served or at
least tendered with the said notice. However, no
proper notice was served;

8. In fact, after knowing of the terminated survey

directed by Complainant, Respondent Generoso
Salumbro filed a land-boundary conflict complaint in
Barangay Sumimao, Paquibato District, Davao City
to protest precisely such carried out survey. A
photocopy of such complaint is herein attached as
Annex 5;

9. During the barangay proceedings, Respondent

Salumbro offered to direct the digging of the

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 boundary mark placed there by the surveyor during
the survey conducted last 1969;

10. Mr. Junrey John de la Torre and Mr. Allan Joy de la

Torre were requested by Respondent Salumbro to do
the digging to look for the boundary mark placed
there by the surveyor during the 1969 survey.
Kagawad Rosalina Neeza, Kagawad Wilfredo Garcia
and Barangay Treasurer Bernardo Ramos were
present then as witnesses. Before the digging
commenced, Mr. Allan Joy saw Complainants tenant,
Ms. Escuadro, come near us and departed after
observing for a while. A photocopy of the affidavit
they executed is hereby appended as Annex 6. It
can then be safely inferred that the Complainant had
actual knowledge of digging conducted and knew
that the Respondents are not in accord with the
survey Complainant made;

11. A picture of the boundary mark put by the

surveyor on 1969 is hereinto attached as Annex 6.
On the other hand, a picture taken of the boundary
mark newly placed by the Complainants surveyor is
herein attached as Annex 7;

12. Moreover, in the course of the digging,

Respondent Salumbro saw Complainant standing
together with others about thirty (30) meters away
also watching and observing the on-going
excavating. Complainant then went to the boundary
mark his surveyor placed and took pictures thereon;

13. Due to complainants surveyor non-appearance

during the barangay hearings and because of the
successive non-appearance of the Complainant, a
Certificate to File Action was issued by Pangkat
Secretary Genelyn Pacifico on January 6, 2017.
Please refer to Annex 1 for the photocopy of such
Certificate of File Action;

14. It is noteworthy to take into account the

declarations of Complainant in the October 13, 2016
and October 13, 2016 as per minutes of the
barangay hearings. In the former, he stated in the
vernacular language, Sa akong kabahin, kung ako

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 ang nalapas sa survey akong iuli ang yuta. (On my
part, if the area surveyed was in excess, I will return
the difference.), herein appended as Annex8-1.
And in October 13 hearing, he asserted that Karon
dili man muanhi imong surveyor, sa katapusang
higayon ako muhangyo ni Mr. Montealto ug
Salumbro nga akong akong bayaran ang tanang
tanom nga nasulod sa yuta nga nasulod sa akong
pagpasurvey. ( Since your surveyor cannot come, I
would to make as a last request to Mr. Montealto and
Mr. Salumbro that I will pay for the trees that were
included in the survey conducted.), herein attached
as Annex 8-2 Thus, it is apparent that Complainant
knew and recognized that Mr. Salumbro personally
planted and owned the trees and that there was a
problem with the actual survey he made;

15. Moreover, a perusal of the signed survey plan

denominated as Calinan Public Land Subdivision
approved last August 1975 would reveal that there
was no overlapping between Lots 1152 and 1155. A
photocopy of such survey plan is here appended as
Annex 9. Thus, it can be inferred that there was
something wrong with the survey instigated by
Complainant last September 2016, which dispute
would have been avoided if the said survey had been
performed with the participation of all adjacent
owners;

16. We respectfully propose in order to attain a

complete and comprehensive resolution to the issue
at hand that a written letter request for the conduct
of a verification survey of both subject parcels of
land to the Department of Environment and Natural
Resources;

17. Proceeding from above, it is apparent that we are

not liable for Theft and the claims of the Complainant
against are baseless and completely unfounded.
Hence, the affidavit-complaint filed by Complainant
should be dismissed outright;

18. We are executing this joint counter-affidavit to

attest to the foregoing facts and to ask that the
criminal case against us be dismissed.

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 AFFIANTS SAYETH FURTHER NONE. August 31, 2017,
Davao City.

GENEROSO SALUMBRO
Affiant/Respondent

RODOLFO BASAS
Affiant/Respondent

SUBSCRIBED AND SWORN to before me this ___th

day of August 2017 and I certify that I have examined the
affiants and I am satisfied that they have understood the
contents thereof and that the same are their free and
voluntary acts and deeds.

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