November 9, 2000

DAR OPINION NO. 39-00

MEMORANDUM

TO                :        DIRECTOR NESTOR R. ACOSTA
                                   DAR-Regional Office No. III
                                     Pedmar Bldg., Dolores
                                   San Fernando, Pampanga

SUBJECT    :     Letter Petition of Maria Aga Vinuya Relative
                            to the Issuance of CLOA Over a Landholding
                            Located at Pasig, Candaba, Pampanga

This refers to the request of Mrs. Maria Aga Vinuya for the coverage under CARP and for the generation of CLOA in their favor over a landholding located at Pasig, Candaba, Pampanga. This is an offshoot of an earlier Petition for Coverage filed by her which was granted by your Office in an Order dated 21 August 1997 and subsequently affirmed by the Office of the Secretary in an Order dated 5 April 1999. However, a Notice of Appeal was filed at the DAR Central Office by the losing party. According to Mrs. Vinuya, "Ayon sa Department of Agrarian Reform Opinion No. 22, Series of 1997 . . . kahit may pending appeal sa kaso ay pwede pa ring i-isyu ang aming CLOA." Likewise you posed the following queries, to wit:

1)        Can our Office proceed in the generation and issuance of EP/CLOA of farmer-beneficiaries using as basis the adverted to above DAR Opinion No. 22, series of 1997, even if the case is still pending appeal before the Higher Office?

2)        What about if the issues raised by the losing party/landowners in the appeal were in the nature of protest on the coverage of the landholdings?

3)        Can the Regional Office implement the foregoing Order, dated August 21, 1997, notwithstanding the pendency of the remedies availed of by the losing party?

On the first query, we believe that DAR Opinion No. 22, series of 1997, is not applicable since it particularly responded to a query on whether or not the DAR Regional Office can issue Emancipation Patents in favor of the farmer-beneficiaries even without an Entry of Judgment of Certificate of Finality from the Court of Appeals. The scenario under which the opinion was rendered was that the decision to be implemented has already become final and executory and the only thing that was lacking was the receipt of the corresponding Entry of Judgment or the issuance of the Certificate of Finality. Not in the present case which is pending appeal. It is for this reason that DAR Opinion No. 22, series of 1997, cannot apply herein.

The same is also true if the appeal is in the nature of a protest on the coverage of the landholding (second issue) as clarified in DAR Opinion No. 9, series of 1999, to quote:

". . . it is deemed wise and prudent to resolve first the pending petition for exemption filed . . . before proceeding to the coverage of the landholding in issue to avoid possible absurdity where the property subject of the request might later on be declared as exempt from CARP coverage. This policy procedure aims to prevent the government from probable wastage of time, effort and resources incident to the coverage. Hence, the coverage process should momentarily be deferred to give way to the resolution of the pending application for exemption/exclusion.

In view of all the foregoing, we submit that in cases where there are pending applications for exemption or conversion or protests on coverage, the issuance of Certificate of Cash Deposit shall be held in abeyance until such time that said applications or protests are resolved with finality."

On the third issue, we advise that the Order dated 21 August 1997 should not be implemented yet considering that a Notice of Appeal was filed by the adversely affected party. However, it may be noted that in the photocopy of the Certification of the Office of the President dated 02 August 1999, attached to your letter, it appears that no Notice of Appeal was served to or received by the Office of the President which is required pursuant to Memorandum Circular No. 3, series of 1994 (Finality of Decisions/Orders Issued by the DAR Through the Secretary). Pertinently, the third paragraph of said Memorandum Circular states, thus:

2)      An appeal from the decision/order issued by the Department shall be perfected within fifteen (15) days after receipt of a copy of the decision/order complained of by the party adversely affected, by filling with the DAR a notice of appeal, serving copies thereof upon the prevailing party and the Office of the President and paying the required fees. The DAR shall upon perfection of the appeal transmit the records of the case to the Office of the President." (emphasis and emphasis supplied)

Be it that as it may, it is our considered opinion that a Certificate of Finality or Entry or, at least, certified copy thereof, should first be secured before your Office can finally implement the Order of the Secretary dated 05 April 1999.

Please be guided accordingly.

(SGD.) FEDERICO A. POBLETE

Undersecretary for Legal Affairs, and Policy and Planning

Copy furnished:

Mrs. Maria Aga Vinuya

Pasig, Candaba, Pampanga

The Provincial Agrarian Reform Officer

DAR Provincial Office

San Fernando, Pampanga

The Municipal Agrarian Reform Officer

DAR Municipal Office

Candaba, Pampanga