FCF Minerals Corporation vs. Lunag, et al.

The anti-SLAPP defense under the Rules of Procedure for Environmental Cases may be invoked only by individuals who became targets of litigation due to their environmental advocacy; it cannot be used by a large mining concessionaire to recover damages from ordinary citizens or community members whose environmental suit failed.

FCF Minerals Corporation is a domestic corporation engaged in mining. In 2009, it entered into a Financial or Technical Assistance Agreement with the Republic of the Philippines, granting it an exclusive right to explore, mine, and utilize minerals within a 3,093.51-hectare contract area in Barangay Runruno, Quezon, Nueva Vizcaya. Respondents Joseph Lunag, et al. claim to belong to the Ifugao, Kalanguya, and Cordillera Indigenous Cultural Communities. The Rules of Procedure for Environmental Cases include an anti-SLAPP provision, and the Constitution protects free expression, assembly, petition, and the right to a balanced and healthful ecology.

FCF Minerals Corporation is a domestic corporation engaged in mining. In 2009, it entered into a Financial or Technical Assistance Agreement with the Republic of the Philippines, granting it an exclusive right to explore, mine, and utilize minerals within a 3,093.51-hectare contract area in Barangay Runruno, Quezon, Nueva Vizcaya. Respondents Joseph Lunag, et al. claim to belong to the Ifugao, Kalanguya, and Cordillera Indigenous Cultural Communities.

In 2012, Lunag, et al. filed a Petition for Issuance of the Writ of Kalikasan with Prayer for the Issuance of Environment Protection Order and Writ of Continuing Mandamus before the Supreme Court against the Secretary of the Department of Environment and Natural Resources, the Director of the Mines and Geosciences Bureau, the National Commission on Indigenous Peoples, and FCF Minerals Corporation. They questioned the open-pit mining method used by FCF Minerals Corporation. They claimed that open-pit mining will destroy their ancestral land, which embraces forest cover, watersheds, rice paddies, residential areas, burial grounds, and worship houses, among others. They contended that FCF Minerals Corporation is excavating areas 50-100 meters away from their residential houses, exposing them to threats of landslide. They further argued that the Agreement violates Section 19(f) of Republic Act No. 7942, the Philippine Mining Act, which prohibits mining within virgin forests, watershed, national parks, and bird sanctuaries. They also asserted that the Indigenous Peoples’ consent was fraudulently obtained because FCF Minerals Corporation did not disclose the extent of its mining activities and the environmental destruction it will cause. They sought a Writ of Kalikasan, a Temporary Environmental Protection Order stopping FCF’s mining operation until affected people are relocated to safer grounds or settlement agreements are in place, and a Writ of Continuing Mandamus commanding the DENR and MGB to review the mining method and amend the FTAA, and the NCIP to enjoin operations and assist affected ICCs in negotiating payment.

In its Return, FCF Minerals Corporation alleged that the petition filed against it was a Strategic Lawsuit Against Public Participation. It pointed out that the petition failed to show evidence of environmental damage that would justify the issuance of the Writ of Kalikasan. It claimed that it complied with the provisions of the Agreement, was granted an Environment Compliance Certificate, and filed its Declaration of Mining Project Feasibility, which was approved by the Department of Environment and Natural Resources. It argued that it is still in the development and construction phase and has yet to commence mining operations, contrary to Lunag, et al.’s allegations. It likewise alleged that the mining method it will use will not cause environmental damage, as open-pit mining is not prohibited and is the only viable option that will not cause environmental damage to the contract area. It denied that the contract area is within any wildlife or protected area as certified by the Mines and Geosciences Bureau’s Memorandum. It also asserted that it complied with the Mining Act and the Indigenous Peoples’ Rights Act. It denied that the contract area overlapped with the ancestral domain of Lunag, et al., as evidenced by Certificates of Non-Overlap issued by the National Commission on Indigenous Peoples. It likewise pointed out that Lunag, et al. are not Indigenous Peoples of Nueva Vizcaya, but are merely migrants into the area. It averred that the precautionary principle does not apply because there is no threat to human life or health, inequity to present or future generations, or prejudice to the environment.

The Department of Environment and Natural Resources, Mines and Geosciences Bureau, and National Commission on Indigenous Peoples, through the Office of the Solicitor General, submitted a consolidated return on the writ. They argued that Lunag, et al.’s petition must be denied for not stating a cause of action, as there was nothing in the petition showing how they impaired, breached, or transgressed the rights of Lunag, et al., and it was not claimed that they had been remiss in the performance of their duties. They submitted a Field Report Memorandum showing that there were no violations of environmental law within the contract area. They stressed that Lunag, et al.’s allegations were not supported by any evidence. They alleged that the Agreement does not include areas declared closed to mining pursuant to the Philippine Mining Act and National Integrated Protected Areas System. As provided in the Agreement, the contract area granted to FCF Minerals Corporation is a parcel of the Magat River Forest Reserve, which was declared open for mineral exploration in 1999. They claimed that the free and prior informed consent of Lunag, et al. is not required because the contract area is not an ancestral domain. They alleged that there is no truth to Lunag, et al.’s claim that a free and prior informed consent was obtained from them; in fact, FCF Minerals Corporation did not even solicit this consent from Lunag, et al. They further disputed Lunag, et al.’s claim that they are part of Indigenous Cultural Communities, as the only known ancestral settlers in Nueva Vizcaya are in Kasibu, which is miles away from the contract area.

FCF Minerals Corporation and the Office of the Solicitor General then filed their respective Omnibus Motions praying for the conduct of a hearing. In its motion, FCF Minerals Corporation alleged that Lunag, et al. admitted that they are unlicensed small-scale miners who were affected by FCF Minerals Corporation’s mining activities. Thus, it claimed that the petition filed by Lunag, et al. was only intended to extort money from FCF Minerals Corporation. The Court of Appeals relied on the report of the Community Environment and Natural Resources Office Task Force, which conducted an on-site investigation in the contract area. The Task Force found that FCF Minerals Corporation was not violating any environmental law and that the environmental damage alleged by Lunag, et al. are actually attributable to small-scale mining activities. The Court of Appeals also cited Lunag, et al.’s admission that they are small-scale miners who operated within the contract area without permit, and found that they did not file the petition due to genuine concern for the environment but for self-serving reasons.

• SLAPP Characterization and Compliance: Petitioner alleged that the Petition for Writ of Kalikasan filed by respondents is a SLAPP and constitutes tortious interference in relation to the implementation of its mining contract; it maintained that it fully complied with the Agreement and the Philippine Mining Act, National Integrated Protected Areas System Act, and Indigenous Peoples’ Rights Act.
• Respondents’ Status and Motive: Petitioner claimed that respondents are illegal small-scale miners who are adversely affected by its mining operations, and that they referred to another company named Oceana in the petition, indicating that their grievances were directed against a different mining corporation; it also alleged that respondents demanded P1,000,000,000.00 in exchange for the free use of the area where they illegally conduct small-scale mining, showing the petition was an instrument of harassment.
• Entitlement to Damages and Attorney’s Fees: Petitioner argued that it is entitled to actual damages and attorney’s fees in the total sum of P10,774,309.00 under Rule 6, Section 4 of the Rules of Procedure for Environmental Cases and Article 2199 of the Civil Code; it also claimed exemplary damages under Article 2229 and attorney’s fees and costs under Article 2208.
• Proof of Damages: Petitioner asserted that it offered adequate proof of actual damages through judicial affidavits and receipts, including eight authentic vouchers, official receipts, computation of losses, and a Supplemental Judicial Affidavit; it presented a certification for P3,250,700.00 in lost management time, receipts for legal fees of P3,564,455.00 and P3,439,854.00, and a statement of account for P520,000.00 for Aero Eye Asia’s aerial mapping services.
• Constitutional Objection: Petitioner argued that the award of damages in a SLAPP case is not a contravention of freedom of speech and the right to petition government for redress of grievances, as it is sanctioned by the Rules of Procedure for Environmental Cases.
• Misplaced US Cases: Petitioner argued that the Court of Appeals’ reliance on Varian Medical Systems, Inc. vs. Delfino and 1-800 Contacts, Inc. vs. Steinberg was misplaced because the SLAPP allegations in those cases were rejected and the California Anti-SLAPP Law cited therein provides for recovery of attorney’s fees and costs; nothing in those cases showed how an award for damages defeats constitutional rights.
• Chilling Effect and Deterrence: Petitioner averred that the chilling effect referred to in the Rules describes the consequence of legal suits brought against persons who assert their environmental rights and privileges; it argued that if its prayer for damages is denied, bogus actions similar to respondents’ petition will not be deterred as intended by the rules.
• Jurisdiction over Factual Issues: Petitioner argued that the Supreme Court has jurisdiction to resolve the petition even if it raises factual questions, citing recognized exceptions: the inference made is manifestly mistaken; the findings of fact are conclusions without citation of specific evidence; and the findings of fact of the Court of Appeals are premised on the supposed absence of evidence and contradicted by the evidence on record.

• Open-Pit Mining and Ancestral Land: In their Petition for Issuance of the Writ of Kalikasan, respondents questioned the open-pit mining method used by petitioner, claiming it will destroy their ancestral land, including forest cover, watersheds, rice paddies, residential areas, burial grounds, and worship houses; they contended that petitioner is excavating areas 50-100 meters away from their residential houses, exposing them to threats of landslide.
• Violation of Mining Act: Respondents argued that the Agreement violates Section 19(f) of Republic Act No. 7942, the Philippine Mining Act, which prohibits mining within virgin forests, watershed, national parks, and bird sanctuaries.
• Fraudulent Indigenous Peoples’ Consent: Respondents asserted that the Indigenous Peoples’ consent was fraudulently obtained because petitioner did not disclose the extent of its mining activities and the environmental destruction it will cause.
• Reliefs Sought: Respondents sought a Writ of Kalikasan, a Temporary Environmental Protection Order stopping petitioner’s mining operation until affected people are relocated to safer grounds or settlement agreements are in place, and a Writ of Continuing Mandamus commanding the DENR and MGB to review the mining method and amend the FTAA, and the NCIP to enjoin operations and assist affected ICCs in negotiating payment.

• SLAPP Characterization: Whether the action filed by respondents against petitioner constitutes a Strategic Lawsuit Against Public Participation.
• Entitlement to Damages: Whether petitioner is entitled to actual damages, exemplary damages, attorney’s fees, and costs of suit as a consequence of the dismissal of respondents’ environmental petition.

• SLAPP Characterization: No. The action filed by respondents was not shown to be a SLAPP, and petitioner, a large mining concessionaire, cannot invoke the anti-SLAPP remedy because it was not the target of litigation due to environmental advocacy. The anti-SLAPP defense is available only to individuals who became targets of litigation because of their environmental advocacy.
• Entitlement to Damages: No. Petitioner is not entitled to actual damages, exemplary damages, attorney’s fees, and costs. The Court of Appeals correctly denied damages, and awarding them would contravene the purpose of the anti-SLAPP rule and create a chilling effect on legitimate environmental cases.

• SLAPP Characterization: The Court defined SLAPP as claim suits filed against private individuals as retaliation for their recourse to government on an issue of public concern, which do not forward any genuine cognizable interest but are used to oppose and suppress the defendants’ political activities. It traced the doctrine to American legal sociologists George Pring and Penelope Canan, who described three stages: a citizen addresses the government on a matter of public concern; those threatened by the communication file a case to intimidate the citizen; and the defendant-citizen raises the defense that the communication was constitutionally protected. Pring and Canan proposed elements of SLAPP: (1) a civil complaint or counterclaim for monetary damages and/or injunction; (2) filed against non-governmental individuals and/or groups; (3) because of their communications to a government body, official, or the electorate; and (4) on an issue of some public interest or concern. In the Philippines, the anti-SLAPP rule is narrowly applied only to environmental cases. The Court adopted the Oregon view that SLAPP suits may be invoked not only against the government but also against private parties. The anti-SLAPP provision is founded on the constitutional rights to freedom of speech and expression, freedom of assembly, the right to petition the government for redress of grievances, and the right to a balanced and healthful ecology. Under the Rules, SLAPP is defined as an action, whether civil, criminal, or administrative, brought against any person, institution, or government agency or local government unit or its officials and employees, with the intent to harass, vex, exert undue pressure, or stifle any legal recourse taken or may be taken in the enforcement of environmental laws, protection of the environment, or assertion of environmental rights. The conditions for alleging SLAPP are: (1) the defendant has taken or may take a legal recourse in the enforcement of environmental laws, protection of the environment, or assertion of environmental rights; (2) a legal action is filed against this person, whether civil, criminal, or administrative; and (3) the action was filed to harass, vex, exert undue pressure, or stifle the legal recourse of the defendant. The Court emphasized that anti-SLAPP is a defense that may only be invoked by individuals who became targets of litigation due to their environmental advocacy. It is not a remedy of powerful corporations to stifle the actions of ordinary citizens, nor a tool given to large concessionaires who have obligations and responsibilities under the law. In this case, petitioner cannot use the remedy because it is not exercising the right to free speech or the right to petition the government; it is not advocating for the protection, preservation, and rehabilitation of the environment, but enforcing its mining grant. The enforcement of a large mining concession is not an activity intended to be protected by the rules. Thus, the action filed by respondents cannot be considered a SLAPP for purposes of petitioner’s claim.
• Entitlement to Damages: The Court agreed with the Court of Appeals that the award of damages would go against the purpose of the anti-SLAPP rule. Allowing petitioner’s action would transform the anti-SLAPP provision into a blunt instrument that would create a chilling effect against future legitimate environmental cases. Being sued by those within the contract area, or those affected by it, is not actionable per se. Leeway should be given to those who may not have all the resources to pursue proof of their actions, such as the local community, indigenous peoples, farmers, and miners. They may lose in the end, but losing does not mean that their action is a SLAPP. Respondents’ failure to sustain the litigation should not be recklessly construed against them. A citizen’s right to petition the government must be favored and given protection regardless of whether the motivation for doing so is to advance their own interests. Losing the case does not instantly transform the case into a SLAPP and entitle petitioner to damages. The Court cannot apply the anti-SLAPP provision in favor of petitioner, a large mining corporation granted a mining concession. As a mining grantee, it is bound to comply with the provisions of the agreement and the laws. Citizens, whether or not directly affected by the mining concession, should be allowed to call out and make these corporations accountable. The anti-SLAPP motion is an extraordinary remedy deliberately crafted to address lawsuits tending to squelch an ordinary citizen’s constitutional rights to free speech and petition; it cannot be authorized for a case for which it was never intended.

• Strategic Lawsuit Against Public Participation (SLAPP) — SLAPP refers to claim suits filed against private individuals as retaliation for their recourse to the government on an issue of public concern. Such suits do not forward any genuine cognizable interest but are used to oppose and suppress the defendants’ political activities. The concept originated from American legal sociologists George Pring and Penelope Canan, who described three stages: a citizen addresses the government on a matter of public concern; those threatened by the communication file a case to intimidate the citizen; and the defendant-citizen raises the defense that the communication was constitutionally protected. Pring and Canan proposed elements: (1) a civil complaint or counterclaim for monetary damages and/or injunction; (2) filed against non-governmental individuals and/or groups; (3) because of their communications to a government body, official, or the electorate; and (4) on an issue of some public interest or concern. In the Philippines, the anti-SLAPP rule is narrowly applied only to environmental cases.
• Anti-SLAPP Defense under the Rules of Procedure for Environmental Cases — The Rules define SLAPP as an action, whether civil, criminal, or administrative, brought against any person, institution, or government agency or local government unit or its officials and employees, with the intent to harass, vex, exert undue pressure, or stifle any legal recourse taken or may be taken in the enforcement of environmental laws, protection of the environment, or assertion of environmental rights. The conditions for alleging SLAPP are: (1) the defendant has taken or may take a legal recourse in the enforcement of environmental laws, protection of the environment, or assertion of environmental rights; (2) a legal action is filed against this person, whether civil, criminal, or administrative; and (3) the action was filed to harass, vex, exert undue pressure, or stifle the legal recourse of the defendant. SLAPP is set up as a defense in cases claimed to have been filed merely as a harassment suit against environmental actions; it must be invoked in the same action and before the same court. The defendant may file an answer interposing the defense, supported by evidence, and by way of counterclaim pray for damages, attorney’s fees, and costs of suit.
• Limitation on Invoking Anti-SLAPP — The anti-SLAPP remedy cannot be indiscriminately invoked by any defendant in an environmental case. It may only be invoked by individuals who became targets of litigation due to their environmental advocacy. It is not a remedy of powerful corporations to stifle the actions of ordinary citizens, nor a tool given to large concessionaires who have obligations and responsibilities under the law. A large mining concessionaire enforcing its mining grant is not exercising the right to free speech or the right to petition the government and is not entitled to the remedy.
• Losing an Environmental Case Is Not Automatically a SLAPP — Being sued by those within or affected by a contract area is not actionable per se. A citizen’s right to petition the government must be favored and given protection regardless of motivation. Losing the case does not instantly transform the case into a SLAPP and entitle the petitioner to damages. Leeway should be given to local communities, indigenous peoples, farmers, and miners who may lack resources to prove their actions.
• Damages in SLAPP Cases — When an action is dismissed for being a SLAPP, the court may award damages, attorney’s fees, and costs of suit in favor of the defendant. However, the award must not contravene the purpose of the anti-SLAPP rule. Allowing damages in favor of a large mining corporation against community members whose environmental suit failed would transform the anti-SLAPP provision into a blunt instrument creating a chilling effect against future legitimate environmental cases.
• Primacy of Free Expression and Petition Rights — The rights to free expression, assembly, and petition for redress of grievances enjoy a position of primacy in the constitutional sphere. They are indispensable to a functional democratic society and are the foundation of the anti-SLAPP rule. The anti-SLAPP provision is also hinged on the constitutional right to a balanced and healthful ecology.
• Writ of Kalikasan — The Writ of Kalikasan is an environmental writ intended to ensure environmental law enforcement by making the powerful accountable. It is available to a natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health, or property of inhabitants in two or more cities or provinces. The rules were intentionally applied not only against the government but also against private entities because private corporations threaten the exercise of environmental rights as much as government agencies that fail to fulfill their duties.

• "The remedy of Strategic Lawsuit Against Public Participation under the Rules of Procedure for Environmental Cases cannot be indiscriminately invoked by any defendant in an environmental case. It may only be invoked by individuals who became target of litigation due to their environmental advocacy. It is not a remedy of powerful corporations to stifle the actions of ordinary citizens who seek to make them accountable. More so, it is not a tool given to large concessionaires who have obligations and responsibilities under the law." — This passage states the core ratio decidendi: the anti-SLAPP remedy is limited to environmental advocates and cannot be used by large concessionaires.
• "In this case, petitioner cannot use this remedy. Within the context of SLAPP, petitioner is not exercising the right to free speech or the right to petition the government for redress of grievances. At the outset, petitioner is not advocating for the protection, preservation, and rehabilitation of the environment, but enforcement of its mining grant. The enforcement of a large mining concession is not an activity intended to be protected by the rules. This does not fall within the political activities protected by an anti-SLAPP law." — This passage applies the doctrine to FCF Minerals Corporation, explaining why its enforcement of a mining grant is outside the protected activities.
• "Losing the case does not instantly transform the case into a SLAPP and entitle the petitioner to damages." — This passage establishes that an unsuccessful environmental suit is not automatically a SLAPP and does not justify damages.
• "We agree with the observation of the appellate court insofar as the award of damages will go against the purpose of the anti-SLAPP rule. Allowing the petitioner's action will transform our anti-SLAPP provision into a blunt instrument which will create a chilling effect against future legitimate environmental cases." — This passage explains why damages were denied and warns against using the anti-SLAPP rule to chill environmental litigation.

• Mercado vs. Lopena, G.R. No. 230170, June 6, 2018 — Cited for the rule that SLAPP is set up as a defense in cases claimed to have been filed merely as a harassment suit against environmental actions; it is a privilege provided in procedural rules and must be invoked in the same action and before the same court.
• Phil. Blooming Mills Employees Organization vs. Phil. Blooming Mills Co., Inc., 151-A Phil. 656 (1973) — Cited for the primacy of human rights over property rights and the preferred position of free expression and assembly in the hierarchy of civil liberties.
• Bayan vs. Ermita, 522 Phil. 201 (2006) — Cited for the principle that the right to peaceably assemble and petition for redress of grievances, together with freedom of speech, expression, and the press, enjoys primacy in constitutional protection and is the basis of a functional democratic polity.
• Primicias vs. Fugoso, 80 Phil. 71-127 (1948) — Cited for the characterization of free expression and assembly as fundamental personal rights of the people.
• Fraser vs. Saanich — Cited as a Canadian case where the court explicitly recognized a litigation as SLAPP and held that the action was merely an attempt to stifle the democratic activities of the defendants.
• Gunns Ltd. vs. Marr, 2009 VSC 284 — Cited as an Australian SLAPP case where the court dismissed the claim for failure to provide sufficient clarity and particulars, and the case was settled with the plaintiff paying costs to the remaining defendants.

• Rule 1, Section 4(g), Rules of Procedure for Environmental Cases (A.M. No. 09-6-8-SC) — Defines SLAPP as an action, whether civil, criminal, or administrative, brought against any person, institution, or government agency or local government unit or its officials and employees, with the intent to harass, vex, exert undue pressure, or stifle any legal recourse taken or may be taken in the enforcement of environmental laws, protection of the environment, or assertion of environmental rights.
• Rule 6, Section 1, Rules of Procedure for Environmental Cases — Provides that a legal action filed to harass, vex, exert undue pressure, or stifle any legal recourse that any person, institution, or the government has taken or may take in the enforcement of environmental laws, protection of the environment, or assertion of environmental rights shall be treated as a SLAPP and governed by the Rules.
• Rule 6, Section 2, Rules of Procedure for Environmental Cases — Provides that in a SLAPP filed against a person involved in the enforcement of environmental laws, protection of the environment, or assertion of environmental rights, the defendant may file an answer interposing the defense of SLAPP, supported by documents, affidavits, papers, and other evidence, and by way of counterclaim pray for damages, attorney’s fees, and costs of suit; the court shall direct the plaintiff to file an opposition, and the defense shall be set for hearing.
• Rule 6, Section 3, Rules of Procedure for Environmental Cases — Provides that the hearing on the defense of SLAPP shall be summary in nature; the party seeking dismissal must prove by substantial evidence that his act for the enforcement of environmental law is a legitimate action for the protection, preservation, and rehabilitation of the environment, while the party filing the action assailed as a SLAPP must prove by preponderance of evidence that the action is not a SLAPP and is a valid claim.
• Rule 6, Section 4, Rules of Procedure for Environmental Cases — Cited by petitioner as allowing the award of damages, attorney’s fees, and costs of suit when the case is dismissed for being a SLAPP.
• Rule 2, Section 2(a), Rules of Procedure for Environmental Cases — Provides that a motion to dismiss the complaint is prohibited in environmental cases, which is why SLAPP may be raised as an affirmative defense in the answer.
• Rule 7, Section 1, Rules of Procedure for Environmental Cases — Defines the nature of the Writ of Kalikasan as a remedy available to a natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health, or property of inhabitants in two or more cities or provinces.
• Article III, Section 4, 1987 Constitution — Provides that no law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances; the anti-SLAPP rule is founded on this provision.
• Article II, Section 16, 1987 Constitution — Provides that the State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature; the anti-SLAPP rule is also hinged on this provision.
• Article 2199, Civil Code — Cited by petitioner as providing that actual damages may be awarded for pecuniary loss duly proved.
• Article 2229, Civil Code — Cited by petitioner as basis for exemplary damages.
• Article 2208, Civil Code — Cited by petitioner as basis for attorney’s fees and costs.
• Article 32, Civil Code — Cited in the discussion of provisions against individuals who impair the exercise of free speech, the right to peaceful assembly to petition the government, and freedom of access to courts.
• Section 19(f), Republic Act No. 7942 (Philippine Mining Act) — Cited by respondents as prohibiting mining within virgin forests, watershed, national parks, and bird sanctuaries; they argued the Agreement violated this provision.

Hernando, Inting, Delos Santos, and J. Lopez, JJ., concurred.