Sample "Comment" to "Offer of Evidence"

This a sample "Comment" to the "Offer of Evidence" in a criminal case prepared by our law office. We are sharing it for legal research purposes of our readers/followers. 

COMMENT

(To: PROSECUTION’S “FORMAL OFFER

OF DOCUMENTARY EXHIBITS”)

            THE ACCUSED x x x by counsel, respectfully states:

1.       Re: Exhibit “A”, with submarkings, of the Offer, the accused xxx objects to Purposes of the Offer, for the reason that the said statements or allegations of purposes are self-serving, that the same are mere conclusions of law, and that the same are not supported by the evidence on record.

1.1.             To stress: Allegations in a Complaint are not evidence per se. There is no proof of harassment, threat and coercion extant in the said exhibit other than the bare allegation of the private complainant.

2.      Re: Exhibit “B”, with submarkings, of the Offer, the accused xxx objects to the Purposes of the Offer, for the reason that the said statements or allegations of purposes are self-serving, that the same are mere conclusions of law, and that the same are not supported by the evidence on record.

2.1.            To stress: Allegations in a Salaysay are not evidence per se. There is no proof of harassment, threat and coercion extant in the said exhibit other than the bare allegation of the private complainant, showing that the accused xxx made threatening calls to and poked a gun at the private complainant.  

2.2.           Neither is such an allegation (conclusion of law) a proof of the presence of conspiracy between the two accused xxx2.

3.           The exhibit was marked as PROVISIONAL only. There  is no proof that the original was offered to the Court for the record.

3.      Re: Exhibit “C”, with submarkings, of the Offer, the accused xxx objects to the Purposes of the Offer, for the reason that the said statements or allegations of purposes are self-serving, that the same are mere conclusions of law, and that the same are not supported by the evidence on record.

3.1.            To stress: Allegations in a Salaysay are not evidence per se.

3.2.           There is no proof of harassment, threat and coercion extant in the said exhibit other than the bare allegation of the private complainant, showing that the accused xxx poked a gun at the private complainant or that the two accused xxx had conspired.

3.3.           As to the entrapment conducted by the National Bureau of Investigation (NBI), it should be noted that the Regional Trial Court, Branch xxx, of xxx City, under Hon. Judge xxx ACQUITTED the accused xxx of illegal possession of firearms filed by the NBI against the accused xxx, per its AMENDED DECISION, dated January 21, 2016 which in due time shall be presented in evidence by the accused xxx

4.      Re: Exhibit “D”, with submarkings, of the Offer, the accused xxx objects to the Purpose of the Offer, for the reason that the said statements or allegations of purposes are self-serving, that the same are mere conclusions of law, and that the same are not supported by the evidence on record.

4.1.            To stress: Allegations in a Salaysay are not evidence per se.

4.2.           There is no proof of harassment, threat and coercion extant in the said exhibit other than the bare allegation of the affiant thereof, showing that the accused xxx banged loudly on the gate of the home of the private complainant, that the accused xxx poked a gun at the private complainant and that the two accused xxx had conspired.

4.3.           The affiant xxx did not personally testify before the Court to affirm her subject Affidavit, dated June 28, 2010, and she was not subjected to cross examination by the two defense counsel, thus, the said exhibit is HEARSAY under the Rules of Evidence and violates the constitutional right of confrontation/cross examination of the accused xxx

5.       Re: Exhibit “E”, with submarkings, of the Offer, the accused xxx objects to the Purposes of the Offer, for the reason that the said statements or allegations of purposes are self-serving, that the same are mere conclusions of law, and that the same are not supported by the evidence on record.

5.1.             To stress: Allegations in a Salaysay are not evidence per se.

5.2.            There is no proof of harassment, threat and coercion extant in the said exhibit other than the bare allegation of the affiant thereof, showing that the accused xxx threatened the life of the private complainant and his family, that the private complainant did not freely mortgaged his car to the accused xxx and that the accused xxx issued the threatening words quoted in the said Salaysay.

5.3.            The exhibit was marked as PROVISIONAL only. There  is no proof that the original was offered to the Court for the record.

6.       Re: Exhibit “F”, with submarkings, of the Offer, the accused xxx objects to the Purposes of the Offer, for the reason that the said statements or allegations of purposes are self-serving, that the same are mere conclusions of law, and that the same are not supported by the evidence on record.

6.1.            To stress: Allegations in a Salaysay are not evidence per se.

6.2.           There is no proof of harassment, threat and coercion extant in the said exhibit other than the bare allegation of the affiant thereof, showing that the accused xxx made threatening phone calls to the private complainant, that the accused xxx poked a gun at the private complainant, and that the two accused xxx had conspired.

6.3.           As to the entrapment conducted by the National Bureau of Investigation (NBI), it should be noted that the Regional Trial Court, Branch xxx, of xxx City, under Hon. Judge xxx ACQUITTED the accused xxx of illegal possession of firearms filed by the NBI against the accused xxx, per its AMENDED DECISION, dated January 21, 2016 which in due time shall be presented in evidence by the accused xxx

6.4.           The affiant xxx did not personally testify before the Court to affirm his subject Affidavit, dated July 8, 2010, and he was not subjected to cross examination by the two defense counsel, thus, the said exhibit is HEARSAY under the Rules of Evidence and violates the constitutional right of confrontation/cross examination of the two accused.

6.5.            The exhibit was marked as PROVISIONAL only. There  is no proof that the original was offered to the Court for the record.

7.       Re: Exhibit “G”, with submarkings, of the Offer, the accused xxx objects to the Purposes of the Offer, for the reason that the said statements or allegations of purposes are self-serving, that the same are mere conclusions of law, and that the same are not supported by the evidence on record.

7.1.             To stress: Allegations in a Salaysay are not evidence per se.

7.2.            There is no proof of harassment, threat and coercion extant in the said exhibit other than the bare allegation of the affiant thereof, showing that the accused xxx made threatening phone calls to the private complainant, that the accused xxx poked a gun at the private complainant, and that the two accused xxx had conspired.

7.3.            As to the entrapment conducted by the National Bureau of Investigation (NBI), it should be noted that the Regional Trial Court, Branch xxx, of xxx City, under Hon. xxx ACQUITTED the accused xxx of illegal possession of firearms filed by the NBI against the accused xxx, per its AMENDED DECISION, dated January 21, 2016 which in due time shall be presented in evidence by the accused xxx

7.4.            The three affiants, who are NBI agents, namely, xxx, xxx, xxx,  did not personally testify before the Court to affirm their subject Joint Affidavit, dated July 8, 2010, and they were not subjected to cross examination by the two defense counsel, thus, the said exhibit is HEARSAY under the Rules of Evidence and violates the constitutional right of confrontation/cross examination of the two accused.

8.      Re: Exhibit “H”, with submarkings, of the Offer, the accused xxx objects to the Purposes of the Offer, for the reason that the said statements or allegations of purposes are self-serving, that the same are mere conclusions of law, and that the same are not supported by the evidence on record.

8.1.            To stress: Allegations in a Salaysay are not evidence per se.

8.2.           There is no proof of harassment, threat and coercion extant in the said exhibit other than the bare allegation of the affiants thereof or that the accused xxx poked a gun  on the private complainant.

8.3.           As to the entrapment conducted by the National Bureau of Investigation (NBI), it should be noted that the Regional Trial Court, Branch xxx, of xxxCity, under Hon. Judge xxx ACQUITTED the accused xxx of illegal possession of firearms filed by the NBI against the accused xxx, per its AMENDED DECISION, dated January 21, 2016 which in due time shall be presented in evidence by the accused xxx.

8.4.           The affiant, who an NBI agent, namely, xxx , did not personally testify before the Court to affirm their subject Joint Affidavit, dated July 8, 2010, and he was not subjected to cross examination by the two defense counsel, thus, the said exhibit is HEARSAY under the Rules of Evidence and violates the constitutional right of confrontation/cross examination of the two accused.

9.       Re: Exhibit “I”, with submarkings, of the Offer, the accused xxx objects to the Purposes of the Offer, for the reason that the said statements or allegations of purposes are self-serving, that the same are mere conclusions of law, and that the same are not supported by the evidence on record.

9.1.            To stress: Allegations in the Memorandum of Agreement, dated February 16, 2010, are not evidence per se of threat and coercion. It is merely an evidence of a business transaction.  

9.2.           There is no proof of harassment, threat and coercion extant in the said exhibit other than the bare allegation of the affiant-private complainant. There is no proof that the private complainant was forced to sign the MOA and to mortgage his car or that he was forced, threatened and coerced by the accused xxx to pay the debt subject matter thereof. The MOA with a Deed of Chattel Mortgage was a regular business loan transaction duly executed by the parties, including the private complainant.  

10.   Re: Exhibits “J”, “K”, and “L”, with submarkings, of the Offer, which are Cash Vouchers and Bank Deposit Slips, the accused xxx opez objects to the purposes for which they are being offered, for the reason that the said statements or allegations of purposes are self-serving, that the same are mere conclusions of law, that the same are not supported by the evidence on record, and that the purposes stated are irrelevant and immaterial to the allegation of threat and coercion allegedly committed by the accused xxx 

10.1.        A voucher and a bank deposit slip are not proofs of threat, coercion, harassment, and compulsion. They are merely proofs of payment by the debtor and proofs of receipt of such payment by the creditor.

11.    Re: Exhibits “M”, “O”, and “P”, with submarkings, of the Offer, the accused xxx objects to the Purposes of the Offer, for the reason that the said statements or allegations of purposes are self-serving, that the same are mere conclusions of law, that the same are not supported by the evidence on record, and that the alleged threat and coercion are not shown in and by said documents.

11.1.          The author of Exh. “P” (NBI transmittal letter to the Chief Prosecutor of xxx City), i.e., NBI Dep. Dir. xxx was not presented in court to authenticate the said document and he was not cross examined. He had no personal knowledge of the crimes charged in the instant cases. He merely relied on the hearsay statement of NBI agent xxx as part of his transmittal letter to the Chief Prosecutor of xxx City.

12.  Re: Exhibit “Q”, with submarkings, of the Offer, the accused xxx objects to the Purposes of th Offer, for the reason that the said statements or allegations of purposes are self-serving, that the same are mere conclusions of law, that the same are not supported by the evidence on record, that the stated purposes are irrelevant and immaterial to the nature and contents of the Certificate of Incorporation of the subject Corporation issued by the Securities and Exchange Commission (SEC), and that the attached document thereto, entitled “Extraction/Hustlings/Stockpiling/Hauling and Loading Contract” is not part of the said exhibit and was not issued by the SEC and was not marked as a submarkings of the said exhibit. It was merely  inserted in the Offer for unfair reasons.

13.   Re: Exhibit “R” (Letter of Understanding), with submarkings, of the Offer, the accused xxx objects to Purposes of the Offer, for the reason that the said statements or allegations of purposes are self-serving, that the same are mere conclusions of law, that the same are not supported by the evidence on record, and, most of all, that the said exhibit does not prove the crimes of threat and coercion, and that the said exhibit is simply a proof of a regular business transaction.

13.1.         The said exhibit is PROVISIONAL only. There is no proof that the original thereof had been submitted to the court for the record. It is not the best evidence for the purposes for which it is now being offered.

14.  Re: Exhibit “S”, with submarkings, of the Offer, the accused xxx objects to the Purpose of said Offer, for the reason that the said statements or allegations of purposes do not prove the crimes of threats and coercion. It merely proves probable cause (a duty of the Office of the Prosecutor to establish after a preliminary investigation).

14.1.         Further, the said exhibit is PROVISIONAL only. There is no proof that the original thereof had been submitted to the court for the record. It is not the best evidence for the purposes for which it is now being offered.

15.    Re: Exhibit “U”, ”V”, and “W”, with submarkings, of the Offer, the accused xxx objects to the Purposes of the Offer, for the reason that the said statements or allegations of purposes are self-serving, that the same are mere conclusions of law, that the same are not supported by the evidence on record, and that the subject matters of the said documents and contracts is extraneous, irrelevant and immaterial to the crimes of threat and coercion charged in the instant cases.

16.  Re: Exhibit “X” (judicial affidavit of xxx with submarkings, of the Offer, the accused xxx objects to the Purposes of the Offer, for the reason that the said statements or allegations of purposes are self-serving, that the same are mere conclusions of law, that the same are not supported by the evidence on record, that the  same does not prove beyond reasonable doubt the crimes of threat and coercion charged in the instant cases, and that it does not corroborate the testimony of the private complainant as allege din the Purpose Column.

WHEREFORE, in the interest of justice, it is respectfully prayed that the foregoing comments/objections be considered by the Court in resolving the prosecution’s “Formal Offer of Documentary Exhibits”.

Las Pinas City, November 3, 2016.

LASERNA CUEVA-MERCADER

LAW OFFICES

Counsel for Accused xxx 

Unit 15, Star Arcade, CV Starr Ave.

Philamlife Village, Las Pinas City 1740

Tel. Nos. 8725443 & 8462539

X x x.

Cc:

OFFICE OF THE CITY PROSECUTOR

Hall of Justice

X X X

            Reg. Rec. No.

            Date                                        PO

Atty. x x x.

Private Prosecutor

X x x x .

            Reg. Rec. No.

            Date                                        PO

EXPLANATION

Copies hereof are served on the Court, the opposing counsel and the public prosecutor via LBC Express Corp./registered mail due to the lack of field staff of undersigned counsel at this time and due to the urgency of filing the same.

x x x 

Sample expanded VERIFIED RESPONSE in a small claims suit

This is a sample VERIFIED RESPONSE (Answer) in a "small claims case" in a municipal trial court prepared by our law office. We are sharing it for legal research purposes of our readers/followers. (Although a separate expanded written verified response or answer is not required in small claims suits, at the discretion of the defendant, he may file the same if warranted by the complexities of the case).

VERIFIED RESPONSE/ANSWER

            The defendant xxx xxx, pro se, respectfully states:

1.       There was a prior related and similar case (small claims suit) between the parties to this case which was earlier dismissed by this Court. It was filed by the same plaintiff Xxx Xxx (XXX). It was docketed at Civil Case A- No. xxx and entitled “Xxx vs. Xxx”, for “Collection of Water Bill.”

2.      The Court dismissed the aforecited case on the ground that the plaintiff failed to comply with the provisions of Sec. 57, Article X of the bylaws of XXX, of which the herein defendant Xxx is a member in good standing up to the present time. The said provision refers to mandatory conciliation and mediation proceedings within the organization of the plaintiff XXX.

3.      Attached are copies of the following related background documents of the said earlier related case (Civil Case A- No. xxx and entitled “Xxx vs. Xxx”), for the record and for the information of the Court:

(a)              Annex “A” – Complaint, dated __________;

(b)              Annex “B” - Verified Response/Answer, dated January 5, 2015 (filed on January 14, 2016 with this Court);

(c)             Annex “C” – SUPPLEMENTAL VERIFIED RESPONSE/ANSWER (In Relation to the Defendant’s “Verified Response/Answer”, Filed on

14 January 2016)”, dated January 25, 2016 filed with this Court;

(d)              Annex “D” – Decision, dated February 4, 2016, issued by Presiding Judge xxx of this Court;

4.      In her VERIFIED RESPONSIVE PLEADING/ANSWER, dated 5 January 2016, which she filed in connection with the aforementioned earlier related/similar case, that is, Civil Case A- No. xxx and entitled “Xxx vs. Xxx”, the defendant alleged, thus:

  

“x x x.

1.       X x x.

2.      Nature of the Case. – The instant case is covered by the Rule on Small Claims, per the Summons and per the Amended Notice of Hearing, dated 14 December 2015 (received by the defendant on January 4, 2016).

2.1.      The plaintiff claims the amount of P13, 270.11 in its Prayer (Complaint, Page 6).

2.2.     It covers the water billing period from March 2015 to November 2015, (Complaint, Page 4).

3.      Initial Hearing. – The Court has set the initial hearing of this case on 2 February 2016 at 8:30 AM.

3.1.      The Defendant shall personally appear during the said initial hearing as ordered by the Court.

4.      Special Power of Attorney. – The Defendant has executed a Special Power of Attorney (SPA) in favor of her husband XXX as her attorney-in-fact to assist and/or represent her in this case. (See Annex “A” hereof).

4.1.      Her husband Xxx is the legitimate incumbent President of the Xxx Homeowners Association, Inc. (XXX).

5.      Intra-Corporate/Intra-Political Conflict within the Xxx Homeowners Association, Inc. (XXX). - For the past many years now, the Xxx Subdivision has been beset by intra-corporate/intra-political conflicts between the legitimate incumbent board of directors (BOD) of XXX led by Xxx, the defendant’s husband, who is the President of XXX, on one hand, and a group of homeowners led by the leaders of the Plaintiff Xxx, i.e., xxx, et. al., who claim to be the legitimate officers of XXX (interlocking directors/officers) and who have been illegally perpetuating themselves in power for many years now by misrepresenting themselves to be the true leaders of the homeowners association.

6.      Brief History of the Water Management in XXX. – Sometime in the early part of the year 2004 the XXX Board Of Directors (BOD) thru the then XXX President xxx entered into a contract (Annex “B”) of bulk supply of water with Manila Water Co., Inc. (MWCI).

6.1.            The Manila Water Co., Inc. (MWCI) is the exclusive concessioner of Metropolitan Waterworks and Sewerage System (MWSS) registered with the National Water Resources Board (NWRB) to supply potable water in Xxx, Xxx including Xxx Subdivision.

 

6.2.           The XXX water system was managed by the XXX Water Committee (XXX) created in July 5, 2004 headed by its XXX Chairman xxx using the Official Receipt of XXX (a) in collecting installation/service fees from the homeowners (Annex “C”) and (b) in collecting the payments for their water bills.

6.3.           On August 28, 2005, the holdover Board led by XXX President xxx and xxx illegally diverted the management and operation of the XXX Water System from the XXX to the plaintiff XXX by merely passing Board Resolution No. (BRN) 007-2004.

6.4.           The said holdover Board perpetuated the illegal diversion of the management of the XXX water system from the hands of the XXX to plaintiff XXX by causing its registration with the Xxx Development Authority (CDA) on July 14, 2005.

6.5.            They unjustly granted to the plaintiff XXX the power to operate and manage the water system of the Subdivision without the approval and consent of the majority of the homeowners.

6.6.     The water system of the Subdivision is owned by XXX as a juridical entity (homeowners association in the Subdivision) and by all the individual homeowners thereof. It is not owned by the plaintiff XXX.

6.7.      Due to the abuses of the plaintiff XXX led by its Chairman xxx and the plaintiff XXX’s conspirators in the old XXX board/s in collaboration with the 2004 President xxx/Board up to the tenure of the 2008 President Evelyn Maca and her Board, the homeowners of the Subdivision rejected their leadership and ousted them from power in lawful yearly elections validly held in April 5, 2009 to December 8, 2014.

6.8.           The XXX members democratically elected their genuine leaders for the terms 2009 up to the present.

6.9.           In August 28, 2014, the 2014 XXX BODs led by Miguel Castro revoked BRN 007-2004. (See Annex “D”, BRN 010-2014).

6.10.       The said BRN xxx (revoking BRN xxx) was ratified by the overwhelming majority or the 496 XXX members, (See Annex “E”, 261 pages Mass Petition of Homeowners) which was upheld by the Court of Appeals (Annex “F”) in a resolution issued on October 16, 2015. (Note: The original copy of said resolution was likewise submitted to this Honorable Court in the related Crim. Case Nos. 13-049 and 13-050, “PP vs. xxx et al.”).

6.11.         Dated 20 May 2014 the then 2014 XXX President Miguel Castro, sent (a follow up) demand letter to the plaintiff XXX to turn over the records of the XXX water system (Annex “G”). Plaintiff refused to comply and continued their illegal operation of the XXX water system.

6.12.        In the Fiscal Year 2015, more particularly on March 3, 2015 the new XXX President Xxx continued the implementation of the popular will and mandate of the 496 petitioner XXX members as enunciated in BRN 010-2014 (Annex “E”, supra); thus, the Xxx Board took over the operation and management of the XXX water system.

6.13.        The plaintiff XXX (a) illegally insists to this very day on operating the XXX water system and (b) illegally continues to this very day to harass the homeowners by aggressively collecting the water bills of the latter, tantamount to extortion.

6.14.        The plaintiff XXX illegally disconnects the water meters of dissenting homeowners who opted to pay their water bills to XXX Water Committee of the XXX Board of Directors under the presidency of Xxx:

(a) Who do not recognize the authority of the plaintiff xxx as lawful operator of the XXX water system in the Subdivision and

(b)  Who do not recognize the illegitimate leadership of Maca, et. al. as XXX directors/officers (interlocking as directors/officers of the plaintiff XXX).

6.15.        The instant collection case against the herein defendant Xxx (and other dissenting homeowners like her) is part of the continuing unjust harassment by the plaintiff XXX and its interlocking conspirators in the Maca board.

(a) to illegally control the water XXX water system of the Subdivision,

(b) illegally utilize the huge amounts of money from its illegal water collections from the homeowners whom they have misled and/or intimidated to cooperate with them and to course thru them their water bills payments, and

(c)  illegally perpetuate in power the illegitimate Maca board and its conspirators in the board/management of the plaintiff XXX (interlocking personalities).

7.      For the record, there is now a pending quasi-judicial case in the Housing and Land Use Regulatory Board (HLURB), docketed as HLURB NCRHOA-xxx, entitled  “XXX, xxx, xxxx vs. xxx, xxxx”.

7.1.             In the aforecited HLURB case, a Decision, dated November 27, 2015, has been issued by Housing and Land Use Arbiter, Atty. xxx, ordering the HLURB NCR HOA Franchising Unit to call, conduct and supervise the 2015 election of the XXX which was supposed to be held in December 20, 2015 (covering the annual/calendar term of office from January 1, 2016 to December 31, 2016), per its By-Laws.

7.2.            A copy of the said Decision is attached as Annex “H” hereof.

8.     For purposes of perpetuating control over the water system, the plaintiff XXX, thru misleading allegations, has filed an application for a Certificate of Public Convenience (CPC) with the National Water Resources Board (NWRB), praying that it be allowed to operate the MWSS water system in Xxx Subdivision.

8.1.            XXX headed by its President Xxx have submitted its vehement Opposition thereto. See Annex “I” hereof.

8.2.           MWSS, thru the lawyers of Manila Water Co., Inc. (MWCI), have submitted its comment/ opposition to the application for CPC filed by plaintiff XXX.  See Annex “J” hereof.

Paragraph 5, 6, 8, page 4 of the said Comment of MWCI is hereto reproduced in part, to wit:

“x x x.

5. In its application, Applicant seeks to operate a waterworks system in Xxx Subdivision, Brgy.  Xxx.

  6.  It is most respectfully submitted that the area within which Applicant seeks to operate a waterworks system is within the service area assigned to Manila Water.

8.     Based on the Metro Manila Water Supply System Concession Service Areas, the Service Area East includes Xxx, Xxx. Thus, Manila Water has better and prior right to operate a waterworks system in Xxx Subdivision than Petitioner.                   

X x x.”

Paragraph 10.2, 10.3, and 10.4, Page 5, thereof read;

“x x x.

10.2.  Section 8, Article II of the Contract provides that XXX shall not transfer or extend the water services to another party nor relocate or cause the relocation thereof without prior written approval of Manila Water.

10.3. From the time of execution of the Contract to this date, Manila Water has never received any notification from XXX that it intends to transfer or extend the water services to Petitioner or any other party. If XXX has already transferred the distribution of water services to Petitioner or to any other party, Manila Water has not issued any written approval pertinent to such transfer.

10.4. Hence, pursuant to Section 8, Article II of the Contract, XXX remains the conduit of Manila Water in supplying water to the homeowners of Xxx Subdivision.

X x x.”

9.      Plaintiff XXX is not legally equipped with authority to operate the XXX owned water system and to collect payments from the homeowners for their water consumption.

(a)              The herein defendant does not owe the plaintiff any amount whatsoever.

(b)              The defendant is up to date in her monthly water payments before the March 3, 2015 takeover of the 2015 Xxx Board.

(c)               The Defendant has paid the water bill for her household’s water consumption for March 2015 to the XXX Water Committee of the Xxx Board (Annex “K”). 

The Xxx Board, out of the personal funds of Xxx (president)  had advanced to the MWCI the amount of P174,000.00 for the water consumption March of all XXX consumers (Annex “L”) while waiting for the actual from the XXX consumers to avoid potential collection warnings from the MWCI.

(d)              In the first two (2) months of the operation of the MWCI mother water meter the total collection of the XXX Water Committee from the paying XXX consumers was only Php 125,420.00. Ad earlier stated, Xxx (XXX president) had advanced to the MWCI the payments for the said period in the amount of P174,000.00. In fine, the XXX still owes Xxx P48, 580.

(e)              To stress: The defendant and her husband Xxx have a collectible/receivable from XXX in the amount of P48,580.00. The defendant and her husband believe the said amount is in the hands of the plaintiff XXX, considering that it forcibly collects from the homeowners their payments for water bills under threat of water meter disconnections if the homeowners refuse to recognize the billings of plaintiff XXX.

(f)                The herein defendant has no outstanding obligation to the MWCI.

In fact, she is instead entitled to a rebate from the plaintiff XXX if the Court would consider the value of her two (2) shares of stock in the plaintiff SHAI plus her unpaid dividends for the past ten (10) years dividends that the plaintiff has failed to pay to the herein defendant.

10.     The herein defendant has previously protested

(a) the continuing illegal act of the plaintiff of extorting water payments from her and from the other dissenting homeowners  in the Subdivision, and

(b) the continuing illegal threat of the plaintiff XXX to disconnect the water meters of the herein defendant (Annex “M”) and the other dissenting homeowners (Annex “N” to “N-6”) in the Subdivision.

11.   The defendant, as a co-founding member/cooperator, (Annex “O”)  of the plaintiff XXX, has likewise questioned:

(a)     the validity, legality, and regularity of the continuing authority and existence of the XXX as an entity in the Subdivision and

(b)   the dubious financial management of its funds and assets by its leaders.

Attached is the copy of her past protest letter to the plaintiff XXX, marked as Annex “P” hereof.

12.     Compulsory Counterclaim. – The defendant deserves an award of moral damages, exemplary and actual damages plus costs of suit in the amount of P100,000.00 (the maximum award allowed by the Rule on Small Claims) for the moral, mental and emotional sufferings she has sustained by reason of the filing of this unjust harassment suit (moral damages), for the actual damages she has sustained in defending herself in this baseless suit, and to serve as a lesson to society not to emulate the illegal acts of the plaintiff (exemplary damages). 

13.     X x x.

14.     Reservation. – The defendant reserves the right to submit supplemental pleadings and other documents in support of her defenses during the pretrial and trial phases of this case in the interest of justice.

15.      Mediation and Judicial Dispute Resolution. – The defendant is prepared to cooperate with the Court for the Mediation and Judicial Dispute Resolution (JDR) phases of the instant case assisted by her husband/attorney-in-fact Xxx, who is the incumbent President of XXX.

X x x.”

5.      The defendant hereby adopts into this particular section of her Verified Response/Answer all of the foregoing quoted allegations, by incorporation and reference, for convenience and brevity.

6.      Further, the defendant hereby adopts into this Verified Response/Answer the allegations contained in her -“SUPPLEMENTAL VERIFIED RESPONSE/ANSWER (In Relation to the Defendant’s “Verified Response/Answer”, Filed on  14 January 2016)”, dated  January 25, 2016, which she filed in relation to the aforementioned earlier related case, that is, Civil Case A- No. xxx and entitled “Xxx Xxxvs. Xxx”, by incorporation and reference, to wit:

“x x x.

SUPPLEMENTAL AFFIRMATIVE DEFENSES

9.     Plaintiff violated Sect. 57, Art. X of the XXX Bylaws:

“Section 57.   Conciliation Procedures.  As far as practicable, all intra-xxx disputes shall be settled within the Xxx. If amicable settlement is no feasible, - x – x – x -, the following rules and procedures shall govern all conciliation processes within the Xxx: (a) – x – x – x – x -”

16.     Plaintiff did not comply with the mandatory internal conciliation procedures provided in the XXX By-Laws before filing the instant case against the herein defendant.

17.      Hence, this case should be DISMISSED for failure to state a cause of action, for being premature, and for failure to comply with a procedural precondition, pursuant to Sec. 1, Pars. [g] and [j], Rule 16, Motion To Dismiss.

X x x.”

7.      The herein defendant Xxx submits that she is still a member in good standing of the plaintiff XXX, contrary to the claim of the latter that she had been previously expelled therefrom, considering that the alleged of the herein defendant did not comply with the provisions of Art. Xxx, Sec. , of the bylaws of the plaintiff XXX. The herein defendant hereby stresses the following facts:

(a)              After the aforementioned dismissal by this Court of the former case between the herein parties, that is, Civil Case A- No. xxx and entitled “Xxx Xxxvs. Xxx”,  for “Collection of Water Bill, the only communication that transpired between the plaintiff XXX and the herein defendant were:

·         The two (2) letters, dated _______ and ______, issued by the plaintiff XXX to the herein defendant. Copies of the said letters are attached as Annex “E” and Annex “F” hereof; and

·         The two (2) answers of the defendant to the said two (2) letters of the plaintiff. Copies of the said answers of the defendants, dated ______ and _________, are attached as Annex “G” and Annex “H” hereof.

8.     The defendant hereby quotes in full the Letter, dated ____________, of plaintiff XXX to her, marked as Annex “E” hereof, supra, to wit:

X x x.

9.      Further, the defendant hereby quotes in full the Letter, dated ____________, of plaintiff XXX to her, marked as Annex “F” hereof, supra, to wit:

X x x.

10.  The defendant hereby quotes in full her aforementioned Letter, dated xxx, marked as Annex “G” hereof, supra, to wit:

X x x.

11.   Further, the defendant hereby quotes in full her aforementioned Letter, dated xxx, marked as Annex “H” hereof, supra, to wit:

X x x.

12.  The defendant received no response from the plaintiff to her aforementioned two (2) answers (Annex “G” and Annex “H”, supra).

13.  The defendant did not receive any call or notice for conciliation and mediation within the organization hierarchy of the plaintiff XXX, of which the defendant is a member, pursuant to Sec. 57, Art. X of its Bylaws.

14.  A copy of the said Bylaws is attached as Annex “I” hereof..

15.   The defendant did not receive any invitation from the plaintiff XXX to attend its General Assembly Meeting held on April 17, 2016. It was a clear act of disenfranchisement of the rights of the defendant as a member in good standing.

16.  The defendant did not receive any information, letter, report or any communication whatsoever from the plaintiff XXX regarding the proceedings, decisions, and resolutions discussed and adopted during the said General Assembly Meeting.

17.   The defendant did not receive any letter or communication in respect of the alleged XXX Board Resolution xxx which allegedly terminated here membership in the XXX. The defendant was never furnished a copy of the said board resolution.

18.  Thus, it is clear that the plaintiff violated the provisions of its own Bylaws on the matter of the proper manner of expelling a member, who is entitled to DUE PROCESS OF LAW and TO APPEAL TO THE GENERAL ASSEMBLY any expulsion order of the Board of Directors of the plaintiff, to wit:

(a)            Secs. 8 and 9, Art. II; and

(b)              Sec. 11, 12, 13, and 14, Art. II.

19.  As earlier stated, a copy of the said Bylaws of the xxx is attached as Annex “I” hereof, supra.

20. In fine, the alleged expulsion of the defendant by the plaintiff as a member of the Xxx was null and void ab initio for being violative of the aforementioned provisions of its Bylaws on the matter of membership and expulsion.

21.  Thus, the failure of the plaintiff to comply with the proper conciliation/mediation proceedings as provided in the Bylaws rendered the alleged expulsion of the defendant null and void ab initio. To wit:

Sect. 57, Art. X of the XXX Bylaws:

“Section 57.   Conciliation Procedures.  As far as practicable, all intra-xxx disputes shall be settled within the Xxx. If amicable settlement is no feasible, - x – x – x -, the following rules and procedures shall govern all conciliation processes within the Xxx:  – x – x – x – x -”

22. Further, the defendant respectfully states:

(a)                  The Manila Waterworks and Sewerage System (MWS)  and the  Manila Water Co., Inc. (MWCI) have jointly opposed the application for a Certificate of Public Convenience (CPC) of the plaintiff XXX which is pending in the National Water Resources Board (NWRB).

(b)                 The plaintiff has been ILLEGALLY OPERATING A WATER SYSTEM without a valid Certificate of Public Convenience since 2004.

(c)                  Attached are copies of the two (2) pleadings jointly filed by the MWSS and the MWCI in the NWRB to oppose the application of the plaintiff for a CPC, which are marked as Annex “I” and “Annex J” hereof.

(d)                 Further, the matter of the legitimacy of the faction of Evelyn Maca, which claims to be the legal board of directors of XXX, has been questioned by the board of directors of XXX led by Xxx (spouse and legal representative and attorney in fact of herein defendant in this case) in the Court of Appeals.

23. Attached is a copy of the Petition for Review (Rule 43) filed by the Xxx Board in the Court of Appeals, which case is docketed as xxx and entitled “xxx”, and marked as Annex “K” hereof. The said Petition prays for the following reliefs from the Court of Appeals, to wit:

                                    “x x x.

WHEREFORE, premises considered, it is most respectfully prayed that:

1.       A Temporary Restraining Order (TRO) be immediately issued upon filing of this petition, restraining the respondents and the Housing and Land Use Regulatory Board (HLURB) and any and all of its officers, personnel, agents, and units, offices and departments from implementing and enforcing the questioned HLURB BOARD Decision, dated March 14, 2016, pendente lite in the interest of justice;

2.      A Writ of Preliminary Injunction (WPI) be issued pendente lite against the respondents and the HLURB prior to the expiration of the TRO prayed for above, in the interest of justice.

3.      The questioned HLURB BOARD Decision, dated March 14, 2016 be REVERSED AND SET ASIDE and a new one be issued making perpetual the TRO and the Writ of Preliminary Injunction and ordering the HLURB BOARD and its implementing arms, units, offices, and personnel:

1)                  To immediately call, hold, supervise, control, direct, and administer the regular annual election of the members of the Board of Directors of the XXX SUBDIVISION HOMEOWNERS ASSOCIATION (XXX) as soon as possible and without further delay upon the finality of the Decision of this Honorable Court in the instant petition, in accordance with its By-Laws, R.A. 9904 (Magna Carta for Homeowners and Homeowners Associations), and its Implementing Rules and Regulations;

2) To immediately create a 3-man HLURB Election Committee to be composed of three (3) duly authorized officials/staff thereof, the most senior of whom shall serve as the Chairman, with the sole power and authority to call, hold, control, administer, direct and supervise the said Election;

3) To appoint one (1) duly authorized representative each from the sides of the petitioners and the respondents, as sitting observers in all the hearings, activities, meetings, dealings, and transactions of the said HLURB Election Committee.

4) To order the Provincial Commander of the Philippine National Police (PNP) of Xxx Province, with headquarters at Tikling, Brgy. Dolores, Taytay, Xxx, to act as the duly authorized peace-keeping force during the said HLURB-supervised election until the said election process is terminated and the winning candidates proclaimed by the HLURB Election Committee.

FURTHER, the petitioners respectfully pray for such and other reliefs as may be deemed just and equitable in the premises.

X x x.”

24. I have appointed by husband XXX as my legal representative and attorney in fact in connection with this case. He is the president of the Xxx Subdivision Homeowners Association, Inc. (XXX). His Special Power of Attorney is attached as Annex “L” hereof.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed that the Complaint be DISMISSED for lack of merit.

Further, the defendant prays for such and other remedies as may be deemed just and equitable in the premises.

Xxx, Xxx, November 9, 2016.

XXX

Defendant

Address: x x x.

Signature of Legal Representative,

Spouse, and Attorney in Fact:

_______________

President

Xxx Homeowners

Association, Inc. (XXX)

Address: x x xx .

VERIFICATION

            I,  XXX, of legal age, married, Filipino,  and residing at xxx, Xxx., Brgy.Xxx, Xxx, under oath, depose:  that I am the Defendant in the foregoing EX PARTE SUPPLEMENTAL ANSWER; that I caused the preparation thereof; that I have read its contents; and that the same are true and correct of my own direct/personal knowledge and based on authentic records.

            Xxx, Xxx, November 9, 2016.

                                                                                                Xxx

                                                                                                Affiant/Defendant

            SUBSCRIBED and sworn to before me in ____________, Xxx on this ___ day of November 2016, the affiant/defendant showing her Driver’s License No. xxx.

                                                                                    NOTARY PUBLIC

Doc. No. ____

Page No. ____

Book No. ____

Series of 2016

Cc:      

Xxx Xxx

Plaintiff

c/o Legal Rep. – xxx

Address: x x x

            Reg. Rec. No.

            Date                                        PO

EXPLANATION

            A copy hereof is served on the Plaintiff via registered mail due to the urgency of filing the same.

Xxx                                                                            Xxx

Defendant                                       Attorney in Fact/Husband